This question could also be raised as to whether it is even possible to legally defend oneself in the event that a party to the proceedings argues the interpretation of EU law adopted by the Court of Justice of the EU affecting the subject of the dispute, but the highest courts, including the Constitutional Court itself, this interpretation without proper justification they will not take into account and as a result they will decide against EU law.
There is no doubt that such actions, or the omission of the courts, is in stark contradiction to the elementary obligations that the Czech Republic assumed in connection with its entry into the EU, consisting in the observance of its law. In particular, the court of last instance, whose decision cannot be challenged by means of remedies under national law, in case of doubts about the interpretation of Union law pursuant to Article 267 of the Treaty on the Functioning of the EU (hereinafter referred to as "TFEU"), has the obligation to refer to the Court of Justice of the EU (hereinafter referred to as "CJEU ") with a request for a decision on a preliminary question.
If the given court does not do so and decides in violation of EU law, or does not respect the applicable jurisprudence of the CJEU and the party to the proceedings incurs damage as a result of such conduct, the party to the proceedings has the right to compensation according to the jurisprudence of the CJEU, while this right of his derives directly from EU law.
However, the given issue of compensation for damage to the state in the event of non-compliance with EU law by national courts is not uniformly legally regulated at the EU level. Therefore, the principle of procedural autonomy of the member states applies and the claim will have to be made according to the applicable national regulations. In the Czech Republic, such a regulation is Act No. 82/1998 Coll., on liability for damage caused in the exercise of public authority by decision or incorrect official procedure. However, here we encounter a fundamental problem. In fact, the current wording of the given law requires the prior annulment of the given decision due to alleged illegality in order to assert a claim for damages against the state in the event of an illegal court decision. But what if this decision, due to its conflict with EU law, is precisely the decision of one of the highest courts, or the Constitutional Court? These courts no longer have any other superior authority in our territory that would be entitled to overturn their decisions.
If the decision in question was not annulled due to its illegality, the Czech court ruling under Act No. 82/1998 Coll. cannot decide on damages. This construction has its justification, as it is apparently not appropriate for the courts of lower instances competent to decide on the given claims to assess the final decisions of the highest courts, including the Constitutional Court. This absurdity has already been challenged before the CJEU in connection with the application of compensation for damages arising from violations of EU law by the highest courts of the member states, especially with regard to the preservation of the principle of legal certainty, the requirement of res iudicata, the principle of independence and authority of the courts, as well as due to the non-existence of the court competent to decide disputes concerning the state's responsibility for damage caused by such decisions. However, the CJEU rejected all the given objections when, specifically in the Köbler case, it concluded that, for reasons connected with the necessity to ensure the protection of the rights granted to individuals by EU rules, the principle of state responsibility inherent in the EU legal order must also be applicable in relation to decisions of a national court whose decision cannot be appealed. According to the CJEU, Member States are obliged to enable the persons concerned to invoke this principle and to provide them with an appropriate legal remedy for this purpose. However, the essential argument of the CJEU in relation to the requirement of prior annulment of an illegal decision under Czech legislation is that the right to compensation must not be jeopardized by the absence of a court competent to review and possibly annul decisions of supreme courts issued in violation of EU law. According to the CJEU, it is up to the member state to determine the court competent to decide disputes concerning this type of compensation for damages. The CJEU also confirmed that the principle of Member State responsibility for damages caused to individuals by a breach of EU law is inherent to the entire treaty system on which the functioning of the EU is based, with this principle being valid for any breach of EU law by a Member State, regardless of the authority of the Member State , whose actions or omissions caused the violation.
The existence of the very condition of prior annulment of the decision in national legislation was then dealt with by the CJEU in the recent decision in the Ferreira case. In the case in question, the Portuguese general court, deciding on damages, appealed to the CJEU. It followed from the applicable Portuguese legislation that any claim for state responsibility for a breach of EU law is inadmissible unless the decision that caused the damage has been annulled. In this context, the CJEU stated that such a rule may make it excessively difficult to obtain compensation for damage caused by the violation of EU law in question. The CJEU even described the condition of prior annulment of the decision of the court of last instance as a serious obstacle that prevents the effective application of EU law, especially such basic principles as the principle of state responsibility for violations of EU law, the existence of which cannot be justified in national legislation even by such elementary principles as obstacle to res judicata or the principle of legal certainty. The CJEU therefore explicitly confirmed in the given decision that EU law, and in particular the principles expressed by the CJEU in the area of state responsibility for harm caused to individuals by a violation of EU law by a national court, whose decision can no longer be challenged by remedies under national law, must be interpreted in the sense that, that it prevents such a wording of national legislation as requiring the prior annulment of the decision which caused the injury and which was given by this court, even though such an annulment is practically impossible in the case of the court of last instance.
From the above, it is submitted that the Czech legislation on the enforcement of claims for damages against the state pursuant to Act No. 82/1998 Coll. containing the same requirement of prior annulment of an illegal decision as the above-mentioned Portuguese regulation, is in relation to the decisions of courts of last instance violating EU law contrary to the aforementioned conclusions of the CJEU. This regulation prevents the effective application of the injured party's rights to compensation for damages in cases of violations of EU law by the state and its judicial authorities, which the CJEU has long recognized. In this context, Czech legal doctrine also concluded that the conditions stipulated by Act No. 82/1998 Coll. should, with regard to the given jurisprudence of the CJEU, give way to the conditions of the EU's own law.
It is therefore up to the legislators to adapt the relevant regulation to EU law. The CJEU suggests a solution consisting in the designation of an authority that would be competent to review the compliance of decisions of the highest courts with EU law. Until then, however, the competent general court would not have Act No. 89/1998 Coll. apply and to the claim for damages against the state caused by the decision of the courts of last instance issued in violation of the right of the EU to decide. The general court should do so even if the decision of the courts in question has not been annulled, because there is simply no other authority that would be competent to do so. The above-mentioned solution consisting in the review of the decisions of the highest courts, including the Constitutional Court, by the general court is certainly not ideal. In case of persistent doubts regarding the interpretation of EU law, the general court could of course ask the CJEU for a preliminary question. However, through the mechanism of regular and extraordinary remedies, the matter can again be brought before the court of last instance, which issued the decision in question in violation of EU law. It is a question of how the given court will decide. As already mentioned above, a court whose decision can no longer be challenged by means of an appeal has, in the case of persistent doubts about the interpretation of EU law or the jurisprudence of the CJEU, the obligation to submit a request to the CJEU for a preliminary ruling. Failure to respect this obligation was found by the Czech Constitutional Court to be a violation of the right to a fair trial, or the right to a legal judge. But what if the Constitutional Court itself does not fulfill the stated obligation?
In case of persistent unwillingness of the Czech courts of last instance to decide in accordance with EU law, or by the relevant case law of the CJEU, the party to the proceedings apparently has no choice but to turn to the EU Commission with a complaint about a violation of EU law by a member state. The Commission can then refer the matter to the CJEU pursuant to Article 258 TFEU. The CJEU can subsequently order the Member State to take appropriate corrective measures, or impose a financial penalty in case of non-compliance. The EU Commission has already done so, for example, in a case where Italy left in force a legal regulation that was interpreted and applied by Italian courts (including the highest ones) in violation of EU law. However, on the other hand, the Commission also respects the independence of national courts and the fact that these courts are not subordinate to the CJEU, but should cooperate with it. Even with regard to the aforementioned case in the case of Commission v. Italy, it can be assumed that if it was not an isolated decision, but a settled jurisprudence of national supreme courts that did not respect EU law, including the jurisprudence of the CJEU, the Commission would probably have intervened.
It is clear from the above that in the outlined scenario, when the court of last instance issues a decision in violation of EU law and the decision-making practice of the CJEU, the possibility of reviewing and effectively correcting the consequences of issuing the given decision will be greatly limited. The CJEU grants this option to the parties to the proceedings in the event that they have been harmed by the given decision. The possibility of recovering its compensation in the Czech legal environment, however, with regard to the current wording of Act No. 82/1998 Coll. it still exists rather only theoretically, with regard to the requirement of the given law consisting in the previous annulment of the illegal decision. Even if the CJEU called this requirement in its recent jurisprudence incompatible with the principles already expressed in its decision-making practice, which constantly emphasizes the protection of rights and the possibility of effective recovery of damages from the state in the event of a violation of EU law, the question remains of how and when this facts will be established by the Czech legislator and especially by the Czech courts. In the case of continued decision-making by the highest Czech courts in conflict with EU law and the applicable case law of the CJEU, the party to the proceedings has the option of filing a complaint with the EU Commission. However, it remains uncertain when and if at all the party to the proceedings in the given case will finally receive effective protection of his rights, which are so highlighted in the given area by the jurisprudence of the CJEU.
Source: EPRAO Digital magazine
