The "unknown" law enforcers

Just as this Blog is its own little microcosm, with its own (expanding) community of readers and commenters, so indeed – as we have been wont to remark – are the business pages of The Daily Telegraph.

Today, they are host to a piece by Ambrose Evans-Pritchard, headed Rise of the unknown law enforcer, which really ought to be compulsory reading for every voter in the land. It really is far too good a piece, and much too important, to be confined to the ghetto of the business news pages.

Ambrose's thesis is that, "almost unknown to citizens" (but not to the readers of this Blog), the European Court of Justice has become the silent driving force behind the EU's push for greater economic control and tax harmonisation.

This week's far-reaching opinion by the court's advocate general on Marks & Spencer, he writes, is just the latest in a long string of cases that limit the power of national treasuries. Indeed, that much we have remarked on this Blog many times, not least in this post, which has links to other pieces.

However, the points made cannot be repeated too often and so it is that Ambrose remarks that, while Britain retains an iron-clad veto over EU tax legislation - one of the few areas of economic policy that has not yet switched to majority voting – our fiscal sovereignty is gradually being eroded thrpough the activities of the European court of Justice.

To expand his theme, Ambrose cites Martin Howe QC, a constitutional lawyer, who claims that the ECJ is now circumventing the veto by stretching the "extremely broad and vague" anti-discrimination principles governing the single market to strike down national laws and force changes in policy.

"Tax harmonisation has been blocked at a political level, so the European Court has enthusiastically been making up for the lack of progress. Between 80 and 90 percent of tax cases which have gone to the ECJ have resulted in national tax measures being outlawed," he says.

Adding detail to the M&S case, Ambrose reports that this was unusual in that the ECJ dared to sweep aside pleadings by Germany, France, the Netherlands, Sweden and Finland as well as Britain, angering all the main paymaster states of the EU budget - perhaps unwisely.

Like Britain, these countries feared that the case could set off a flood of rebate demands and cost billions in revenue, but they also argued that the M&S case posed a threat to self-government.

Something I did not know – but do now – is that the advocate general, Miguel Poiares Maduro, who delivered the M&S opinion, happens to be a diehard European federalist and outspoken critic of US policy in Iraq. This man, therefore, is clearly a political judge with his own agenda.

It was he that has reminded member states that they had signed away their powers long ago, telling them that: "Under Community law fiscal sovereignty cannot be construed as meaning 'fiscal autarchy'. By subscribing to the Treaty, the member states agreed to submit to the regime of freedom of movement of persons; this gives rise to specific constraints."

And, as one of our readers points out, what is “fiscal autarchy” other than another term for "fiscal sovereignty", the word "autarchy" (and yes, I did have to look it up in the dictionary) meaning "absolute power".

As to the bias of the ECJ, the honourable and learned Mr Howe (as MPs who are also lawyers are rather arcanely described in the House of Commons – not that Howe is an MP) tells us the court may claim to be a foe of market barriers but many of its rulings have been restrictive - most notoriously in insisting that grated parmesan cheese could only carry the Parma label when actually grated in the city. As a result, freshly grated parmesan is hard to come by.

"Their basic mental furniture tends towards Fortress Europe, rather than global free trade," he says.

The question now, writes Ambrose, is whether the court's ideology will evolve as the new judges from eastern Europe settle into their jobs. Most new members are appointed by low-tax, free-market governments with little sympathy for Rheinland corporatism. These states are jealous of their newly won freedoms and remain wary of EU moves to push integration by the back door. He continues:

The Polish judge, Jerzy Makarczyk, cut his teeth negotiating the withdrawal of Soviet troops from Polish soil at the end of the war. The 25-strong court sits as a full "Grand Chamber" of 13 judges in big cases, or in chambers of five or three.

The ECJ asserted the primacy of EU law over national law in 1964, and although the German and French top courts have challenged this absolute claim, Berlin and Paris have acquiesced as a day to day matter. Under the EU's new constitution the ECJ will acquire jurisdiction over all EU law for the first time.

The Charter of Fundamental Rights will become a legally binding text, giving the judges the final say on a raft of social and economic rights that do not now exist in EU law - ranging from a right to strike to a right to good housing and health care.

The CBI employers' organisation fears it could in effect roll back the Thatcher revolution. The judges will also have the last say on the meaning of Article I-14, which stipulates that the Union "shall adopt measures to ensure the co-ordination of economic policies of the member states".

The concern is that as arbiter of the EU constitution, it could all too easily become an "imperial court" along the lines of the US Supreme Court in the activist era of the 1970s.

If US judges were creative enough to discern a hitherto invisible right to abortion in the "penumbras" of the US constitution, euro-judges could conceivably do anything they please. Their judgment will be final, and beyond appeal. They answer to nobody.

Those last two sentences are the most chilling of all. We have, unwittingly, allowed into the English constitution an alien supreme court, superior to all, including our own House of Lords and even Parliament. That is dangerous. We owe it to ourselves to make sure that it does not remain "unknown".