The importance of indirect access to the ECJ and the issue of compensation when this is denied

Abstract: The importance of access to the ECJ, as the common judge of Europe, is of major importance for individuals as a way to ensure effective protection of those rights, which they derive from Community law. Due to the problems facing individuals as regards direct access, because of the requirement of them having to show direct and individual concern, the indirect way of access, by way of the national courts, is all the more important. The preliminary ruling procedure in Article 234 EC, by which this indirect access takes place, involves a series of problems, especially as regards national courts of last instance and there refusal to, from time to time, follow the obligation set out, and refer Community law issues the ECJ. The importance and the complexity of the provision can he highlighted by applying Hohfeld's theory on rights. The necessity of access to justice and effective legal protection can further be highlighted by looking at the issues from a rights based perspective, as well as from the perspective of the rule of law. The inevitable outcome is that the national courts of last instance must not disregard their duty under Article 234 (3) EC. However, it has still happened that a national court has done just that. There must therefore, when this happens, be a possibility for an injured individual to get compensation for the damage inflicted. A possible way could be applying the principle of State liability. However, whether or not the principle could be used in this respect was, despite the positive remarks made by the ECJ in its well-known Brasserie du Pêcheur judgement, not established in the case law of the Court. The Köbler judgement has to some extent addressed this issue. However, the judgement by the ECJ in this case is by far free from criticism, since its point of focus seems to be misdirected.