In Portugal we actually have had problems regarding kobler jurisprudence. There are only very few decisions .

In my opinion, this case should have been addressed under the jurisprudence of Kühne & Heitz, where, in point 12. you can read "With respect to the first head of claim submitted by Kühne & Heitz for payment of the refunds which, in its view, it had been wrongly required to reimburse, the College van Beroep voor het bedrijfsleven stated that under Netherlands law, administrative bodies, in principle, always have the power to reopen a final decision. The existence of such a power may, in certain circumstances, imply na obligation to withdraw such a decision." 28. " (...) the principle of cooperation arising from Article 10 EC imposes on an administrative body an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime by the Court where:

— under national law, it has the power to reopen that decision;

— the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance;

— that judgment is, in the light of a decision given by the Court subsequent to it,

based on a misinterpretation of Community law which was adopted without

a question being referred to the Court for a preliminary ruling under the third

paragraph of Article 234 EC; and

— the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court.

— that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Article 234 EC; and

— the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court."

THE ECJ therefor ruled that:

" The principle of cooperation arising from Article 10 EC imposes on an administrative body an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime by the Court where:

— under national law, it has the power to reopen that decision;

— the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance;

— that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the thirdparagraph of Article 234 EC; and

— the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court."

Regarding State Liability:

The only problem, and then again under my perspective, with the application of Köbler would be on the establishment of a link of cause and effect and damage.

As states point 51 in Köbler: " As to the conditions to be satisfied for a Member State to be required to make reparation for loss and damage caused to individuals as a result of breaches of Community law for which the State is responsible, the Court has held that these are threefold: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation incumbent on the State and the loss or damage sustained by the injured parties (...)"

If you wish to discuss this subject with more detail, email me at: [email protected]