Case Note on Joined Cases C-392/04 & C-422/04, i-21 Germany GmbH (C-392/04), Arcor AG & Co. KG (C-422/04), Formerly ISIS Multimedia Net GmbH & Co. KG v. Bundesrepublik Deutschland, Judgment of the Court (Grand Chamber) of 19 September 2006, Not Yet Reported

Abstract

Recent years have shown that the ECJ has found various ways to encourage national courts and administrative authorities to apply Community law more effectively. National final administrative decisions and judgments are also more and more frequently subject to the ECJ’s evaluation. The judgments in Commission v. Italy, Köbler or Traghetti indicate that the ECJ does not hesitate to make use of a full variety of available measures. By initiating proceedings against the Netherlands or Sweden, also the Commission shows that it will not allow judges to sleep peacefully. The judgment in Kühne appears to be part of the strategy to stimulate courts and administrative authorities to comply with EC law as well. It indicates that it may follow from the principle of loyal cooperation (Art. 10 EC) that, under certain circumstances, an obligation may arise to review a decision which, although violating Community law, became final as a result of an affirmative judgment of a national court of final instance. By making that obligation dependent on options provided under national law, in Kühne the Court managed to reconcile procedural autonomy of the Member States and legal certainty with the effectiveness of Community law. However, the question referred by the Bundesverwaltungsgericht in i-21 Germany is, along with the one raised by the Austrian court in Kapferer, another example that the Kühne judgment also causes national courts to have problems with its application. The response of the ECJ in i-21 Germany contributes on the other hand, like the judgment in Kapferer, to a clarification of certain doubts. It adds at the same time another element to the puzzle of the mutual relations of Community law and final administrative decisions, as it shows a different path than that in Kühne, at the end of which there may be a need to reconsider a final administrative decision breaching Community law - the path of equivalence.

Keywords: EU Law, withdrawal of final administrative decisions, principle of equivalence, principle of effectiveness, duties of national administrative bodies