European Commission narrows the application of the Köbler procedure with the "manifest disregard" standard

On 05/08/2011 the Commission took a decision in case SG/SDS/2009/A/8335 and provided a further interpretation of the Köbler procedure restricting its application.

In case of a refusal of a national court of last instance to make a preliminary reference to the ECJ, the Commission considers Article 267(3) TFEU as violated "only when there is a recurring problem in a Member State that prevents a case from being referred to the EU Court of Justice, manifest disregard or a deliberate attitude by a national court." Such a narrow understanding was already presented in its reply to written question no. 608/78 (OJEC C28, 31.1.1979, p. 9).

The problem of this view is that it always remains an open question what is a "manifest disregard".