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European Community Law Rights

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The ECJ specified that the national courts that constitute the very last forum were truly the last judicial entities available to individuals. At that stage, individuals attempt to assert the rights provided by Community law. Thus the judicial bodies that are in effect the last resort of individuals at the national level should invariably follow the provisions of Community law. The ECJ also pointed out that Article 234 EC is an indicator of the spirit of the Community and the Treaty Scheme that protects individual rights conferred by the Community law. Therefore, the national courts of the last instance should not infringe Community law3. The ECJ’s ruling in Kobler paved the way to initiate elaborate discussions on several legislative issues concerning state liability. The Advocate General asserted that judges of national courts should not confine themselves to the national law alone, but that they have to act within the purview of the EC law, in order to maintain the spirit of the EC Treaty. This requires national judges to critically assess the scope of national law and the application of the EC law over national law since EC law has supremacy over national law. Moreover, they have to ensure that their national law is in conformity with Community law. This would result in the judges of the domestic courts, ignoring pieces of national legislation that were enacted lawfully under the national procedure for enacting laws, in order to give preference to EC law. In such situations the fundamental doctrine of separation of powers would have to be infringed. This role allotted to the judiciary is akin to the role allotted to the higher courts that have to uphold the justiciable provisions of the Constitution[1].