Köbler in the Common Law Courts: Cooper v Attorney General

The focus of this article is the decision of the Court of Appeal of England and Wales in Cooper v The Attorney General [2010] EWCA Civ 464. Cooper has the distinction of being the first occasion on which a court in a common law jurisdiction has been called upon to apply the principles laid down by the Court of Justice in its seminal decision in Köbler v Austria. In that ruling, the remedy of State liability in damages was extended to judicial breaches of EU law. The Court of Appeal considered the manifest breach threshold of liability with a particular focus on the difficult interaction between the CILFIT ruling and the concept of acte clair on the one hand and the principles underlying the Köbler ruling on the other hand. If the standards applied by the Court of Appeal in rejecting the claim of the appellant are to be regarded as the norm in Köbler actions before the common law courts, a cause of action which is already inherently exceptional in nature will become a true rarity outside of the most obvious breaches of EU law.