Volume 49 (2012) / Issue 6
The Article discusses the question of whether and under what conditions the infringement procedures regulated in Art. 258/260 TFEU may and should be initiated with regard to definitive decisions of national courts which are contrary to EU law. It tries to clarify to what extent definitive judicial decisions may become the subject of the procedure under Art. 258 TFEU, inter alia as a factor which determines a declaration of an infringement on the part of the legislating bodies of a Member State, leads to a declaration of an infringement consisting in an incorrect practice of applying law, or as an independent subject of proceedings. In each configuration the liability of the State is determined according to somewhat different criteria, which are subjected to a detailed analysis. The article shows also potential consequences and problems which may be caused by a judgment of the ECJ declaring an infringement in various possible configurations with the participation of national courts. Lastly, an evaluation is also made of the position of the Commission, which essentially considers that the infringement procedure is not suitable for counteracting infringements in the application of EU law by national courts.
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