Article 267 of the TFEU

CILFIT (ECLI:EU:C:1982:335); Köbler (ECLI:EU:C:2003:513); Traghetti (ECLI:EU:C:2006:391); Fallimento Olimpiclub Srl. (ECLI:EU:C:2009:506); Ferreira da Silva e Brito (ECLI:EU:C:2015:565)

The author invoked before the Supreme Court that there was another ruling in a case regarding fellow co-workers where the appeal court had admitted an error of reasoning and therefore considered that in his case he should be entitled to a compensation under no. 2 of article 13 of the State's Extra-contractual Civil Liability Regime regarding judicial error, approved by Law no. 67/2007, of 31.12 (hereinafter: RRCEE) even if the court had not revoked its previous decision. The author claimed that a different understanding of the provisions of no. 2 of article 13 of RRCEE (according to which the claim for compensation must be based on the prior revocation of the harmful decision by the competent jurisdiction) would be unconstitutional. The author also claimed that the decision of the Court of Appeal violated European Union law, namely the caselaw of the CJEU and the EU Charter. 

 Finally, the author argued that the Supreme Court had to raise a preliminary reference procedure before the CJEU asking (i) whether Portuguese legislation that requires as a precondition for a compensation for judicial error that said decision needs to have been previously revoked, even if there was no way of further appealing, violated Union law?; (ii) whether the existence of two different decisions on the same question of law in Labour Law violated the Charter of Fundamental Rights of the European Union and finally (iii) whether articles 20, 21, 30, 47, 52, 53, and 54 of the Charter of Fundamental Rights of the European Union prevented the application of a national rule that requires as a basis for a claim for compensation against the State a manifest error of law, or a gross error in the assessment of the matter of fact, thus making it impossible for the State to be sued when there is a mere contradiction of judgments regarding the same issue of Labour Law.

The Supreme Court ruled that the action was unfounded, given that, in the present case, the decision in which the alleged error was committed consists of a Judgment of the Court of Appeal that was not revoked. As stated before, since the CJEU, in the Ferreira da Silva e Brito ruling, had already answered the question of whether article 13, no. 2, of the State's Extra-contractual Civil Liability Regime violated European Union Law, the Supreme Court of Justice considered itself exempt from carrying out a preliminary reference procedure on this issue, following the Cilfit ruling. 

Therefore, the Supreme Court ruled that article 13 of said regime is not inconsistent with European Union Law or the CJEU's jurisprudence, following Köbler and that at stake was a mere divergence of decisions handed down by the same court regarding the same question of law, not a matter of State liability.