Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 11 July 2024 (1)

Case C‑369/23

Vivacom Bulgaria EAD

v

Varhoven administrativen sad,

Natsionalna agentsia za prihodite

(Request for a preliminary ruling from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria))

(Reference for a preliminary ruling – Liability of a Member State for damage caused to individuals as a result of breaches of EU law attributable to a national court adjudicating at last instance – National rules providing for the jurisdiction of a court of last instance to hear actions based on breaches of EU law attributable to that court – Article 19(1), second subparagraph, TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Effective judicial protection – Independent and impartial court – Objective test of impartiality)

I.      Introduction

1.        Impartiality is a defining feature of a court. As far back as 399 B.C., Socrates said: ‘Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially.’ (2)

2.        Is a court that is invited to decide on its own breach of EU law impartial?

3.        That question arises in the present case in relation to an action for damages brought by a company based on the wrong interpretation of EU law by a national court of last instance.

II.    The facts in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court

4.        Vivacom Bulgaria EAD (‘Vivacom’) is a Bulgarian company which provides telecommunications services.

5.        In 2007 and 2008, it issued invoices to two Romanian companies on the basis of contracts for the sale of prepaid cards and vouchers for telecommunications services, showing the value added tax (‘VAT’) at 0%.

6.        In the course of a tax audit, the Natsionalna agentsia za prihodite (National Revenue Agency, Bulgaria; ‘the NAP’) considered that it could not be proven that those cards and vouchers were received by persons representing those Romanian companies. Thus, the NAP regarded the transactions as a supply of services whose place of supply was in Bulgaria, where Vivacom carried out its activity, in accordance with the national legislation transposing the VAT Directive. (3)

7.        Consequently, on 20 June 2012, the NAP issued a tax assessment notice to Vivacom, establishing additional VAT liabilities totalling 760 183.15 Bulgarian leva (BGN) (approximately EUR 388 485).

8.        Vivacom paid the amount due and initiated administrative review proceedings against the notice, which were unsuccessful.

9.        Vivacom then brought an action against the notice before the Administrativen sad Sofia-grad (Administrative Court, Sofia City, Bulgaria; ‘the ASSG’), which was dismissed in part. According to that court, Vivacom was liable to pay the VAT because the transactions involved were characterised as a supply of goods but, as the cards and vouchers had not left Vivacom’s warehouse, the place of supply was on Bulgarian territory.

10.      Vivacom brought an appeal against that judgment before the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria; ‘the VAS’). By judgment of 16 December 2014, that court upheld the judgment at first instance. In particular, the VAS agreed with the ASSG’s findings that the transactions were a supply of goods, and found that the relevant national rules had been correctly applied. The VAS being the court of last instance, its judgment was final.

11.      Thereafter, on 12 December 2019, Vivacom brought an action for damages based on State liability as developed in EU law against the NAP and the VAS before the ASSG. Vivacom claimed that the NAP and the VAS had misapplied the relevant provisions of the VAT Directive, as interpreted by the Court of Justice in its case-law.

12.      By judgment of 18 April 2022, the ASSG dismissed Vivacom’s action. In particular, that court held that there was no sufficiently serious breach of EU law on the part of the NAP or the VAS.

13.      In that respect, the ASSG found that the NAP had correctly applied the relevant law. That court also considered that, although the VAS had wrongly classified the transactions as supplies of goods instead of services, the correct legal treatment of those supplies would not have led to a different result, since the conditions for exemption from VAT liability were not satisfied, and that the VAS had correctly concluded that there was no basis for applying the Court of Justice’s case-law relied on by Vivacom.

14.      Vivacom lodged an appeal against that judgment before the VAS, the referring court in the present case. Vivacom argues, inter alia, that the simultaneous role of the VAS as the court of last instance and a party to the dispute does not meet the requirements of a fair hearing by an independent and impartial court under EU law, even if the chamber is different from the one that made the final decision in the tax dispute.

15.      The referring court considers that the question of its jurisdiction should be referred to the Court of Justice before examining the merits of the case.

16.      The referring court explains that, under the provisions of Bulgarian law, (4) actions for damages based on breaches of EU law attributable to the VAS fall within the jurisdiction of the administrative courts. As a general rule, administrative proceedings are heard by courts at two instances. The VAS is the court of last instance, which is why such actions for damages must be examined by the VAS at last instance.

17.      That court therefore wonders whether national rules which allow the same court to be both judge and defendant in the same case meet the requirements of the second subparagraph of Article 19(1) TEU for effective legal protection in the fields covered by EU law and of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) for an independent and impartial court.

18.      The referring court points out that Vivacom does not provide any specific evidence of circumstances that raise questions as to the subjective impartiality of the judges in the VAS chamber, but takes the view that the VAS is biased given its capacity as defendant, and that the mere fact that the action against the VAS is being heard at last instance before the same court, albeit before a completely different chamber, is sufficient to give rise to serious doubts as to the independence and impartiality of each chamber of that court. The same court also notes that the case-law of the European Court of Human Rights (‘ECtHR’) on Article 6(1) of the European Convention on Human Rights (‘ECHR’) does not provide a definitive answer to the question whether a particular court may consider a claim in which it is a defendant. (5)

19.      Under those circumstances, the Varhoven administrativen sad (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Do the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union preclude national legislation such as Article 2c(1)(1) of the ZODOV, read in conjunction with Article 203(3) and Article 128(1)(6) of the APK, under which an action for compensation for damage caused by an infringement of EU law by the VAS, in which the VAS is the defendant, must be examined by that court at last instance?’

20.      Written observations were submitted to the Court by Vivacom Bulgaria, the VAS, the Bulgarian Government and the European Commission. No hearing was held.

III. Analysis

A.      The question raised by this case

21.      In the landmark judgment in Köbler, (6) the Court held that the principle of liability on the part of a Member State for damage caused to individuals as a result of breaches of EU law is also applicable where the breach arises from a decision of a court adjudicating at last instance (‘Köbler liability’). (7)

22.      In that judgment, in response to arguments by certain Member States that the application of the principle of State liability to decisions of national courts adjudicating at last instance was precluded by difficulties in designating the competent court, (8) the Court explained that the ‘application of that principle cannot be compromised by the absence of a competent court.’ (9)

23.      The Court left it for the Member States, in line with the principle of procedural autonomy, to provide for the procedural rules by which individuals may bring Köbler liability claims before the courts, recalling that those rules must satisfy the requirement of effective judicial protection. (10)

24.      The present case calls into question such rules established by a Member State to accommodate Köbler liability for their compatibility with the requirement of effective judicial protection.

25.      That requirement, which is a general principle of EU law, (11) is today embedded in both the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, of which the referring court requested an interpretation.

26.      The principle of effective judicial protection has the same content throughout its application in EU law. (12) It requires, among other things, that the court hearing the claim alleging a breach of an EU-based right, as in the present case, be independent and impartial. (13)

27.      Under the case-law, the Court has recognised that there are two aspects of judicial independence: external and internal. The external aspect demands that the court exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. The internal aspect, which is also referred to as judicial impartiality, seeks to ensure that the deciding judges maintain an equal distance from the opposing parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. It requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. (14)

28.      The question raised by this case concerns the requirement of impartiality, as the referring court essentially wonders whether the applicable Bulgarian rules guarantee that the VAS, given its position as a defendant, has no interest in the outcome of the action for damages other than the application of the law. In short, such a situation might be in conflict with the maxim nemo judex in causa sua, according to which no one should be a judge in their own case.

29.      Neither Köbler nor later case-law (15) dealt with that issue.

30.      The potential problem with impartiality was recognised by scholars. (16) Nevertheless, with few exceptions, (17) they did not discuss it further.

31.      Before I explain my position on the question of impartiality raised by the present case, I will revisit the case-law of this Court and that of the ECtHR which might be of some relevance.

B.      Revisiting the case-law

1.      Case-law of the Court of Justice

32.      In the case-law, the Court has accepted, referring to the case-law of the ECtHR, that compliance with impartiality can be tested in two ways. The subjective test pays regard to the personal convictions and behaviour of a particular judge, whereas the objective test queries whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In assessing impartiality under the objective test, even appearances may be of a certain importance. (18)

33.      The Court has addressed the requirement of impartiality in relation to courts and other bodies. (19) There are three main strands of case-law that might be of interest for this case. Nevertheless, none of those cases dealt with the particular situation in this case.

34.      First, there is case-law on the concept of a ‘court or tribunal of a Member State’ under Article 267 TFEU, in which the Court has assessed whether the referring body was acting as a third party in relation to the interests at stake. That assessment of impartiality was, however, undertaken for the purposes of differentiating judicial and administrative functions, (20) which is not the situation in the present case. There is no doubt that the VAS is a court; the only issue is whether, in a situation such as the one in this case, that court can be viewed as sufficiently impartial.

35.      Second, there is case-law on the impartiality of both the Court of Justice and the General Court in the context of actions for damages resulting from alleged breaches by the General Court of the requirement to adjudicate within a reasonable time under the second paragraph of Article 47 of the Charter. (21) Yet, in my view, that case-law does not appear to be transposable to the present case for two reasons. First, it relates to actions for damages attributable to the General Court and thus does not concern a situation where the Court of Justice as a court of last instance would be ruling on alleged breaches of EU law attributable to it. (22) Second, that case-law pertains to breaches of the reasonable time requirement, so it does not bear on the content of judicial decisions and alleged errors in the interpretation and application of EU law, as is the case with Köbler liability.

36.      Third, there is case-law in which the Court of Justice has decided about the impartiality of the General Court on account of the composition of the deciding chamber. One group of cases relates to situations where some of the same judges were sitting in successive formations before and after referral back from the Court of Justice on appeal. (23) Another group concerns the same judges sitting in related cases. (24) In addition, the question arose in relation to an alleged conflict of interest based on a judge’s former employment. (25) The Court of Justice did not find a problem with impartiality in any of these cases. However, these cases differ from the present one because they do not concern a situation in which judges were ruling on their own breaches of EU law.

2.      Case-law of the ECtHR

37.      As the ECtHR has recognised in its case-law on Article 6(1) ECHR, in the vast majority of cases raising impartiality issues, it has focused on the objective test. (26)

38.      The ECtHR has not yet decided a case relating to a comparable situation involving a court of last instance. (27) There are, however, cases that may be of some relevance to the present one.

39.      For example, some cases raised the issue of the impartiality of judges deciding about whether they committed errors of legal interpretation or application in their previous decision. The ECtHR considered that this may raise justified fears of impartiality. However, in those cases, it was the same judges that were called upon to decide whether they themselves committed those errors, which is why the ECtHR found a violation of Article 6(1) ECHR. (28) On the contrary, in the present case, it would be for different judges to rule on the liability claim, even though it is the same court.

40.      Furthermore, the cases of Mihalkov v. Bulgaria, (29) and Boyan Gospodinov v. Bulgaria, (30) invoked by the parties before this Court, involved claims for damages for the wrongful conviction of the applicants. Leaving aside the complex fact patterns in those two cases, the impartiality issue existed at the level of lower-level courts against whose judgments there was a possibility of appeal. The ECtHR found a violation of Article 6(1) ECHR because, on the one hand, there were certain elements that raised legitimate doubts of impartiality as regards the lower-level courts and, on other hand, the higher-level courts failed to dispel those doubts. What can be of relevance for this case is that the elements that prompted the ECtHR to consider the legitimate doubts of impartiality well-founded were that the lower courts at issue were defendants in the cases for damages they were deciding and that the compensation would have been paid from the budgets of those courts.

41.      To sum up, the case-law of the Court of Justice and the ECtHR does not offer a clear answer as to whether the objective test of impartiality leads to the conclusion that a court of last instance deciding in its own case is always to be understood as partial.

42.      Therefore, in order to apply the objective test of impartiality in the present case, it is first important to understand what that test entails.

C.      What does the objective test of impartiality entail

43.      As is apparent from the order for reference and the observations of the parties, the subjective impartiality of the judges sitting on the bench and forming the VAS in the present case has not been called into question.

44.      This case is rather about the objective test of impartiality. It asks whether, from an outsider’s perspective, the fact that the same court of last instance is both judge and party creates the perception of partiality.

45.      Why is that important?

46.      In the words of the Court, ‘what is at stake is the confidence which the courts in a democratic society must inspire in the public’. (31)

47.      The objective test of impartiality, thus, concerns the public function of the principle of judicial impartiality, in addition to safeguarding the fundamental right to a fair trial of the parties to a dispute. (32) In that sense, this test is about appearances, namely whether reasonable doubts about impartiality have been sufficiently dispelled in the eyes of the public. (33)

48.      The situation such as the one in the present case, in which a court of last instance decides on an action based on a breach of EU law attributable to that same court, appears at first sight likely to raise legitimate doubts as to the impartiality of that court. The VAS seems to be judex in causa sua.

49.      Nevertheless, it follows from the position of the parties in the present case that certain elements stemming from the rules applying to the VAS in the situation at hand either alleviate or reinforce that appearance of partiality.

50.      It seems to me, therefore, that there exist degrees of likelihood that judges deciding a case will be biased towards the position of one of the parties.

51.      For example, the likelihood of partiality is higher if the same judges rule on a claim for damages arising out of their own decision than if that claim is decided by a chamber of different judges of the same court. The likelihood of partiality is even lower if that claim is decided by an entirely different court. Going one step further, the likelihood of partiality is even lower if another branch of government decides. In a way, each of these steps makes the claim a bit less causa sua of the deciding judges in the eyes of the public.

52.      If it is accepted that impartiality is not absolute, but of varying degrees, that means that the question of whether doubts regarding impartiality have been dispelled is also of varying degrees. The question then becomes one of asking at which level of likelihood and under which conditions is it possible to conclude that the appearance of impartiality in the eyes of the public is sufficiently achieved.

53.      That question, as suggested by the Commission, depends on different elements of the particular legal system. Therefore, to my mind, it cannot be answered in general for all the Member States. For example, some Member States may have only one court of last instance in the judicial hierarchy, while others may have two or more. (34) The Member States may have different reasons for organising their judiciaries in a certain way.

54.      In the light of the particularities of each legal system, the acceptable solution depends on a balancing exercise which, in answering whether it is possible to reach a lower level of likelihood of partiality, takes into consideration other interests of that system. (35) Given the importance of the principle of judicial impartiality, national legal systems should give considerable weight to that principle in the balancing exercise.

55.      Accordingly, the question to be answered in each case is whether the rule as applied achieves the lowest level of likelihood of partiality possible in the context of a given legal system. The court answering that question must verify whether the lack of additional elements capable of achieving an even lower level of likelihood of partiality is justified by other interests of that system.

56.      Such a balancing requirement is not new in EU law. Referred to by scholars as the procedural rule of reason, (36) such a requirement was elaborated in cases raising questions about the effectiveness of national rules in the context of national procedural autonomy. (37)

D.      The objective test of impartiality in the present case

57.      It follows that the answer to the question referred is, in the end, in the hands of the referring court. It is that court, rather than the Court of Justice, which can take into consideration other interests of the Bulgarian legal system to assess whether a rule allowing the VAS to decide on its own liability is indeed the lowest level of likelihood of partiality possible.

58.      What is to be assessed?

59.       Based on the information placed before the Court, there appear to be several elements that may be capable of dispelling doubts about the impartiality of the VAS in the present case. These elements concern the recourse to a different chamber or even to a different court, the identity of the defendant and the relevant budgetary rules.

1.      The case is decided by a different chamber

60.      First, as indicated by the Bulgarian Government and the VAS, actions for damages based on breaches of EU law attributable to the VAS are heard by a different chamber of the VAS which is composed of different judges than those that delivered the judicial decision in question. (38)

61.      That element seems to be likely to alleviate legitimate doubts about the impartiality of that court to a certain degree.

62.      In that respect, it appears from a cursory comparative analysis that this is in line with the practice of some other Member State courts. In several situations in which the courts of last instance were ruling on Köbler liability claims arising from breaches of EU law attributable to them, no issue of impartiality was raised, either by the parties or the judges themselves. (39) Certain national courts have considered that there is no problem with impartiality when the court is ruling in a different composition. (40)

63.      A related matter that may be of importance, and which was discussed in the observations of the parties, is how the cases are allocated. If the chamber to decide on liability in the particular case is chosen randomly, this might be likely to alleviate legitimate doubts about the lack of impartiality of the VAS chamber deciding the case.

2.      The case is decided by a different court

64.      A different chamber already increases the distance between the court as a judge and the court as a party. However, if the action were decided by a different court, as advocated by Vivacom, this would be likely to dispel, even more so, doubts about possible bias.

65.      In response to Vivacom’s argument, the Bulgarian Government and the VAS explain that there is no mechanism provided for in Bulgarian law that would allow other courts to hear actions for damages based on breaches of EU law attributable to the VAS.

66.      In applying the objective test of impartiality, the referring court must therefore assess whether the impossibility, under national law, to transfer the case to a different court can be justified.

67.      In that respect, the Bulgarian Government and the VAS submit that that national law reflects the choice of the national legislature to align the rules on the jurisdiction of the administrative courts and the competences in the administrative sphere for the purposes of establishing a coherent system of administrative justice. To have different courts deciding actions involving administrative matters would disregard the court system as established by the Bulgarian Constitution and the relevant national legislation, according to which administrative courts have their own jurisdiction in administrative matters.

68.      One can, of course, imagine a different judicial system than the one in Bulgaria. However, in my view, the obligation imposed on national courts to find the lowest possible level of likelihood of partiality does not require overhauling the existing judicial systems of Member States. That is particularly so when such a judicial system has other structural safeguards of impartiality. In the present case, no systemic issues relating to the independence or impartiality of courts in Bulgaria has been raised.

69.      I, therefore, find the arguments put forward by the Bulgarian Government and the VAS acceptable to justify the decision to maintain the jurisdiction over liability claims within the system of administrative courts, even if this means that the same court will, if the case is appealed, decide on its own liability.

3.      The identity of the defendant

70.      In Köbler, the Court established the liability of the State for breaches committed by courts of last instance. EU law, therefore, posits that the State is a defendant, and not necessarily the court whose alleged breach of EU law is at issue.

71.      Having the State formally as the defendant, and not the court itself, would seem to improve the appearance of impartiality. This is because the public would be likely to perceive as distinct the role of the State as a party and that of the court acting as a judge in that case.

72.      In the present case, this element is not completely clear. According to the arguments of Vivacom, the VAS is the defendant in the main proceedings, in which it has already expressed its position. (41) In contrast, according to the arguments of the VAS, under Bulgarian law, in actions for damages resulting from breaches of EU law, liability lies with the State, and not with the court that caused the damage to an individual by its decision. Therefore, the VAS further asserts that, in the present case, the VAS as a legal entity designated as a defendant by the applicable law is the procedural substitute for the State. (42)

73.      To my mind, even if merely a matter of form, naming the Bulgarian State as the defendant instead of the VAS would be more likely to dispel doubts about the partiality of the VAS in this dispute. What weight should be given to this particular rule in the balancing exercise is a matter that falls to the national court.

4.      Budgetary rules

74.      An issue closely connected to the identity of the defendant is the matter of finances. The question here is who pays the damages if Köbler liability is established. The relevant budgetary rules are therefore liable to alleviate or reinforce doubts as to impartiality.

75.      Paying damages out of the budget of the State instead of out of the budget of the court concerned would be more likely to dispel doubts as to the impartiality of that court.

76.      However, in the present case, it seems that if the action for damages would be successful, the amounts awarded would be taken from the budget of the VAS.

77.      That, in itself, does not have to lead to the conclusion that there is a problem with impartiality. As indicated by the VAS and the Bulgarian Government, and which was not contradicted by Vivacom, the granting of damages does not have an impact on the remuneration or working conditions of the judges. The existence of a separate line in the budget of the court was a factor taken into consideration by the ECtHR to distinguish its ruling in Mihalkov v. Bulgaria, and find in a different case that there was no problem with impartiality. (43)

78.      The claim that the State is the true defendant is difficult to reconcile with the fact that damages are paid from the budget of the VAS. However, if the latter budgetary rule has a justification, for example, in the organisation of public finances in Bulgaria, then the rule at issue might still pass the objective test of impartiality. That is a matter for the national court.

79.      To sum up, the decision about impartiality in a concrete case depends on different elements of the national legal system taken together and how they relate to each other.

80.      It seems to me that the elements put before the Court in the present case, which relate to the existence of a different chamber, the identity of the defendant and the relevant budgetary rules, sufficiently dispel the legitimate doubts about the lack of impartiality of the VAS in ruling on an action for damages for a breach of EU law attributable to it.

IV.    Conclusion

81.      In the light of all of the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) as follows:

The second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union

do not preclude national rules according to which an action for damages based on a breach of EU law attributable to a court of last instance is examined by that court, and in which that same court is a defendant, where those rules achieve the lowest level of likelihood of partiality possible in the context of a given legal system.

This is a matter for the referring court to determine, taking into consideration different interests pursued in the system of judicial organisation in the Member State at issue.

1      Original language: English.

2      See Geyh, C.G., ‘The Dimensions of Judicial Impartiality’, Florida Law Review, Vol. 65, No 2, 2014, p. 493, in particular p. 498.

3      Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).

4      The referring court mentions, in that regard, Article 2c(1)(1) of the Zakon za otgovornostta na darzhavata i obshtinite za vredi (Law on liability of the State and of municipalities for damage; ‘the ZODOV’), which governs the procedure for actions for damages based on a breach of EU law against the State, and indicates that, in the case of damage arising from the exercise of judicial functions of the administrative courts and the VAS, those proceedings are subject to the Administrativnoprotsesualen kodeks (Code of Administrative Procedure; ‘the APK’). Pursuant to Article 128(1)(6) of the APK, actions for damages arising from the exercise of the judicial functions of the administrative courts and the VAS fall within the jurisdiction of the administrative courts, and under Article 203(3) thereof, this includes claims for damage arising from a sufficiently serious breach of EU law.

5      The referring court mentions, in that regard, that the ECtHR found violations of Article 6(1) ECHR in the judgments of 10 July 2008, Mihalkov v. Bulgaria (CE:ECHR:2008:0410JUD006771901), and of 10 September 2018, Boyan Gospodinov v. Bulgaria (CE:ECHR:2018:0405JUD002841707), but not in the decisions of 18 June 2013, Valcheva and Abrashev v. Bulgaria (CE:ECHR:2013:0618DEC000619411) and of 18 June 2013, Balakchiev and Others v. Bulgaria (CE:ECHR:2013:0618DEC006518710).

6      Judgment of 30 September 2003 (C‑224/01, EU:C:2003:513, in particular paragraphs 30 to 50). That judgment built on the previous case-law, including the seminal judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, in particular paragraph 35), and of 5 March 1996, Brasserie du Pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, in particular paragraph 31), which established that the principle of State liability for loss and damage caused to individuals as a result of breaches of EU law for which the State can be held responsible is inherent in the system of the Treaties. See, more recently, for example, judgments of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807, paragraph 92), and of 24 November 2022, Varhoven administrativen sad (Repeal of the disputed provision) (C‑289/21, EU:C:2022:920, paragraph 35).

7      For a general discussion, see, for example, Granger, M.-P. F., ‘Francovich liability before national courts: 25 years on, has anything changed?’, in Giliker, P. (ed.), Research Handbook on EU Tort Law, Edward Elgar, Cheltenham and Northampton, 2017, p. 93; Varga, Z., The Effectiveness of the Köbler Liability in National Courts, Hart, Oxford, 2020.

8      See judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, in particular paragraphs 21, 28 and 44). See also Opinion of Advocate General Léger in Köbler (C‑224/01, EU:C:2003:207, in particular points 18 and 21).

9      Judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 45). See also Opinion of Advocate General Léger in Köbler (C‑224/01, EU:C:2003:207, points 107 to 114).

10      See judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 47).

11      See, for example, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph 35), and of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 69).

12      Advocate General Emiliou pointed out in his Opinion in Asociaţia “Forumul Judecătorilor din România” (C‑216/21, EU:C:2023:116, point 26) that it is clear that, within the EU legal order, there is a single principle of judicial independence and that the content of both the second paragraph of Article 19(1) TEU and Article 47 of the Charter, in terms of judicial independence, is essentially the same.

13      See, for example, judgments of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraphs 57 and 58), and of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, paragraphs 93 and 94).

14      See, for example, judgments of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 121 and 122), and of 18 April 2024, OT and Others (Abolition of a court) (C‑634/22, EU:C:2024:340, paragraph 35).

15      In subsequent cases, the Court has confirmed the principle of State liability for judicial breaches of EU law established in Köbler, but in none of those cases did that issue of judicial impartiality arise. Indeed, so far the cases before the Court in which Köbler liability is at issue generally arise from references submitted by lower or otherwise different courts ruling on breaches of EU law attributable to courts of last instance. See judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513) (first instance court); of 13 June 2006, Traghetti del Mediterraneo (C‑173/03, EU:C:2006:391) (first instance court); of 9 September 2015, Ferreira da Silva e Brito and Others (C‑160/14, EU:C:2015:565) (first instance court); of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602) (status of the court as a last instance court unclear); and of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe (C‑620/17, EU:C:2019:630) (different court). The Court has also ruled on actions for infringement brought against Member States based on breaches of EU law committed by courts of last instance, which did not raise that issue either. See judgments of 9 December 2003, Commission v Italy (C‑129/00, EU:C:2003:656); of 12 November 2009, Commission v Spain (C‑154/08, EU:C:2009:695); of 4 October 2018, Commission v France (Advance payment) (C‑416/17, EU:C:2018:811); and of 14 March 2024, Commission v United Kingdom (Judgment of the Supreme Court) (C‑516/22, EU:C:2024:231); see also judgment of 24 November 2011, Commission v Italy (C‑379/10, EU:C:2011:775) (failure to implement the Traghetti judgment cited above).

16      For a selection, see, for example, Toner, H., ‘Thinking the Unthinkable? State Liability for Judicial Acts after Factortame (III)’, Yearbook of European Law, Vol. 17, No 1, 1997, p. 165, in particular pp. 187 and 188; Anagnostaras, G., ‘The Principle of State Liability for Judicial Breaches: The Impact of European Community Law’, European Public Law, Vol. 7, No 2, 2001, p. 281, in particular pp. 295 and 296; Garde, A., ‘Member States’ liability for judicial acts or omissions: much ado about nothing?’, Cambridge Law Journal, Vol. 63, No 3, 2004, p. 564, in particular pp. 566 and 567; van Dam, C., European Tort Law, Second edition, Oxford University Press, Oxford, 2013, p. 47; Demark, A., ‘Contemporary Issues regarding Member State Liability for Infringements of EU Law by National Courts’, EU and Comparative Law Issues and Challenges Series, Vol. 4, 2020, p. 352, in particular p. 372.

17      Some scholars discussed the establishment of special procedures or special courts for claims based on Köbler liability. See, for example, Wattel, P.J., ‘Köbler, CILFIT and Welthgrove: We Can’t Go On Meeting Like This’, Common Market Law Review, Vol. 41, No 1, 2004, p. 177, in particular p. 180. Others scholars contemplated bestowing jurisdiction over such claims on the Court of Justice. See, for example, Hofstötter, B., Non-Compliance of National Courts – Remedies in European Community Law and Beyond, TMC Asser Press, The Hague, 2005, in particular pp. 165 to 175.

18      See judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 128) (referring to ECtHR, judgments of 6 May 2003, Kleyn and Others v. Netherlands (CE:ECHR:2003:0506JUD003934398), and of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal (CE:ECHR:2018:1106JUD005539113)).

19      For a summary of the case-law, see Opinion of Advocate General Pikamäe in Parliament v UZ (C‑894/19 P, EU:C:2021:497, points 54 to 118).

20      See, for example, judgments of 22 December 2010, RTL Belgium (C‑517/09, EU:C:2010:821, in particular paragraphs 41 to 47); of 31 January 2013, Belov (C‑394/11, EU:C:2013:48, in particular paragraphs 45 to 51); of 9 October 2014, TDC (C‑222/13, EU:C:2014:2265, in particular paragraph 37); of 21 January 2020, Banco de Santander (C‑274/14, EU:C:2020:17, in particular paragraphs 72 to 74); and of 3 May 2022, CityRail (C‑453/20, EU:C:2022:341, in particular paragraphs 63 to 71).

21      See judgment of 13 December 2018, European Union v Kendrion (C‑150/17 P, EU:C:2018:1014, paragraphs 27 to 40).

22      In that respect, I note that, in the judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union (C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraphs 74 to 85), the Court considered that Köbler liability is transposable to the regime governing EU non-contractual liability and that the General Court can be equated to a court of a Member State that does not adjudicate at last instance, so that breaches of EU law arising from a decision of the General Court cannot give rise to EU non-contractual liability; instead, the bringing of an appeal is the appropriate means of correcting errors committed in decisions of the General Court.

23      See, for example, judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others (C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraphs 44 to 61), and of 4 December 2019, H v Council (C‑413/18 P, not published, EU:C:2019:1044, paragraphs 45 to 63).

24      See, for example, judgment of 19 February 2009, Gorostiaga Atxalandabaso v Parliament (C‑308/07 P, EU:C:2009:103, paragraphs 41 to 50).

25      See, for example, judgment of 24 March 2022, Wagenknecht v Commission (C‑130/21 P, EU:C:2022:226, paragraphs 15 to 25).

26      The ECtHR has added that there is no watertight division between subjective and objective impartiality, since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test), but may also go to the issue of his or her personal conviction (subjective test). See, for example, ECtHR, judgments of 23 April 2015, Morice v. France (CE:ECHR:2015:0423JUD002936910, § 75), and of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal (CE:ECHR:2018:1106JUD005539113, § 146).

27      There is a case currently pending before the ECtHR on an issue similar to this case. See ECtHR, Doynov v. Bulgaria (Application No 27455/22), Legal summary, May 2023, involving a claim brought under Article 6(1) ECHR based on the lack of impartiality of the VAS to rule on its own liability for an alleged breach of EU law.

28      See ECtHR, judgments of 29 July 2004, San Leonard Band Club v. Malta (CE:ECHR:2004:0729JUD007756201, §§ 61 to 66), and of 7 July 2020, Scerri v. Malta (CE:ECHR:2020:0707JUD003631818, §§ 75 to 81).

29      See ECtHR, judgment of 10 July 2008 (CE:ECHR:2008:0410JUD006771901, §§ 46 to 51).

30      See ECtHR, judgment of 10 September 2018 (CE:ECHR:2018:0405JUD002841707, §§ 54 to 60).

31      See judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 128) (referring to ECtHR, judgments of 6 May 2003, Kleyn and Others v. Netherlands (CE:ECHR:2003:0506JUD003934398), and of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal (CE:ECHR:2018:1106JUD005539113)).

32      Compare Geyh, cited in footnote 2 to this Opinion, who distinguishes between procedural, political and ethical dimensions of impartiality.

33      As the Court has recognised, ‘the perspective of a party to the proceedings is relevant but not decisive. What is decisive is whether such fears regarding objective impartiality can be held to be objectively justified.’ See judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 129).

34      See, in that regard, Opinion of Advocate General Bot in Der Grüne Punkt – Duales System Deutschland v Commission (C‑385/07 P, EU:C:2009:210, point 337), in which he considered that a criterion that is to be taken into consideration in relation to jurisdiction as regards liability for damages in the judicial system at the EU level is that that system consists of only two Courts.

35      On balancing other interests with the nemo judex in causa sua principle, see Vermeule, A., ‘Contra Nemo Iudex in Sua Causa: The Limits of Impartiality’, Yale Law Journal, Vol. 122, No 2, 2012, p. 384.

36      See Prechal, S., ‘Community Law in National Courts: The Lessons from Van Schijndel’, Common Market Law Review, Vol. 35, No 3, 1998, p. 681, in particular p. 690.

37      See judgments of 14 December 1995, Peterbroeck (C‑312/93, EU:C:1995:437, paragraph 14), and of 14 December 1995, van Schijndel and van Veen (C‑430/93 and C‑431/93, EU:C:1995:441, paragraph 19). See also, more recently, for example, judgments of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799, paragraph 63), and of 23 November 2023, Provident Polska (C‑321/22, EU:C:2023:911, paragraph 63).

38      As further indicated by the VAS, the judicial activity of that court is carried out in the form of colleges of three or five members and each collegiate formation is autonomous, without any form of interaction with the other collegiate formations or with the other judges of the VAS.

39      For example, in two cases, liability was found by lower instance courts, but those judgments were reversed on appeal by the courts of last instance whose erroneous application of EU law was at issue and no issue of impartiality was raised. See Cour de cassation (Court of Cassation, France), judgment of 18 November 2016 (15-21.438; FR:CCASS:2016:AP00630); Supremo Tribunal de Justiça (Supreme Court, Portugal), judgment of 12 March 2009 (9180/07.3TBBRG.G1.S1). These two cases are discussed by Varga, cited in footnote 7 to this Opinion, pp. 57 and 58. See also Riigikohus (Supreme Court, Estonia), judgment of 20 May 2022 (3-20-1684).

40      See, for example, Grondwettelijk Hof/Cour constitutionnelle (Constitutional Court, Belgium), judgment of 23 February 2017 (29/2017); Conseil d’État (Council of State, France), judgment of 1 April 2022 (443882; FR:CECHR:2022:443882.20220401); Hoge Raad der Nederlanden (Supreme Court of the Netherlands), judgment of 21 December 2018 (17/00424; NL:HR:2018:2396).

41      It could also be implied that the VAS is formally a defendant in this case from the first page of this Opinion, describing the present case as Vivacom Bulgaria EAD v Varhoven administrativen sad and Natsionalna agentsia za prihodite, and from the fact that it submitted written observations to the Court.

42      In its written observations, the VAS indicates that, in all cases of liability covered by the ZODOV and above all in actions for damages resulting from breaches of EU law, liability lies with the State, and not with the court which caused the damage to an individual by its decision, as indicated by interpretative cases 5/2013 and 7/2014 of the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria).

43       See ECtHR, decisions of 18 June 2013, Valcheva and Abrashev v. Bulgaria (CE:ECHR:2013:0618DEC000619411, § 100), and of 18 June 2013, Balakchiev and Others v. Bulgaria (CE:ECHR:2013:0618DEC006518710, § 61).