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Italian judges are not immune from prosecution for breaching EU law

25 November 2011

An Italian statute on the civil liability of judges is incompatible with European case law, the ECJ has ruled.

The Luxembourg court said that limiting judicial liability to cases of intentional fault or gross negligence was contrary to the principle that member states are liable for infringements of EU law by courts of last instance.

The case was brought by the European Commission, which claimed that Italy made it impossible for the state to be liable for damage caused to individuals in this way.

The ECJ heard that the commission wrote to the Italian government in 2009 complaining about the law, introduced three years earlier, but received no response.

The commission sent a warning letter in 2010, which was again ignored, and only then took legal action. Among its arguments was that the Italian supreme court, the Court of Cassation, interpreted gross negligence in an “extremely restrictive” way.

Ruling in The Commission v Italy (case C-379/10), the ECJ held that Italian legislation was incompatible with the general principle of liability of member states for breaches of EU laws.

The court said the principle applied “in so far as it rules out the possibility of the state incurring liability for an infringement of EU law by a court whose decision is not open to appeal, where the infringement comes about as a result of the way in which that court has interpreted provisions of law or assessed the facts or evidence, and in so far as it limits state liability in this connection to cases involving intentional fault or gross negligence”.

The ECJ ruled that the Italian government must pay costs.

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Courts & Judiciary