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David_W
And here's a link to the subsequent High Court decision based on the EEC ruling:That article was written by someone who doesn't understand the fundamentals of European Union law.In reference to www.bbc.co.uk/news/business-17150054:The High Court in London on Friday ruled that Karen Murphy's appeal over using the decoder to bypass controls over match screening must be allowed.
Domestic courts in the Member States are requested and, in some circumstances, compelled to refer doubtful questions of European Union law to the Court of Justice of the European Union (formerly the European Court of Justice) via the so-called reference procedure (Article 267 Treaty on the Functioning of the European Union). The CJEU is the the final arbiter on points of EU law (established in a long line of case law leading back to the seminal Van Gend case - Van Gend en Loos v Nederlandse Administratie der Belastingen (case 26/62) [1963] ECR 1).
In other words, the landlady didn't take her case to the CJEU, the UK did, and the involvement of the CJEU was an integrated part of one legal process rather than an extra step. When the case came to the High Court, the High Court framed the novel question of EU law and referred that to the CJEU using the Article 267 TFEU procedure, then was compelled to decide the case by implementing the CJEU's definitive ruling. There was only one forum within which the EU law matters could be fully explored, which was the CJEU.
Had the CJEU ruled previously on the same set of facts, the High Court would have been free to follow the previous CJEU ruling rather than re-refer the matter, even though the CJEU doesn't operate a formal system of binding precedent.
On very rare occasions, a domestic court finds a way to squirm round the edges of a potentially relevant CJEU ruling, usually by ruling there is a material (but maybe illusory) difference in the facts which invalidates the applicability of the CJEU ruling. It is rare for a domestic court to hold they are not bound by a seemingly relevant CJEU ruling, and extremely rare when the CJEU ruling came from referral of the case being decided. In other words, the High Court finding in this case was essentially a rubber stamping of the CJEU's decision.
This case does illustrate that those who say the EU always acts to restrict freedoms - indeed the EU is built on four key freedoms (freedom of movement of goods, services, capital and workers).
The primacy of the CJEU is to ensure legal certainty. If Member States were free to follow their own interpretation of EU law, then EU law would not be applied uniformly across the EU and nobody would know where they stood.
The author of the BBC piece probably got mixed up with the European Court of Human Rights. Making an individual petition to the ECtHR is an optional extra step once all domestic appeals have been exhausted. The ECtHR and the European Convention on Human Rights are instruments of the Council of Europe, not the EU, and several non-EU countries, notably including Russia, have ratified the ECHR and participate in the ECtHR processes. The UK was very involved in drafting the ECHR and one of the first to ratify it, in 1951.
The only direct links between the EU and ECHR are that it is mandatory for EU members to ratify the ECHR and participate in the ECtHR processes, also the EU itself has ratified the ECHR.
