The Arbitrary World of EU judges

As we've noted before, the EU is in desperate need of a single patent - virtually overnight, such a patent would boost competitiveness and growth and attract innovation, not least by cutting costs for SMEs. It's currently around 15 times more expensive to obtain a patent across the EU than obtaining patent protection in the US. Or to illustrate using other estimates: a patent validated in 13 EU countries costs as much as €20,000, of which nearly €14,000 arises from translation alone (according to the European Commission).

So it was welcome news when EU leaders agreed to press ahead with an EU patent, despite the silly opposition from Spain and Italy.

But apparently, the ECJ - the omnipotent (or so it thinks) EU court seated in Luxembourg - has different ideas. It now says that establishing a new court to judge patent litigations - which was part of the proposal for a single EU patent - is incompatible with EU law.

The ECJ is worried that giving some judiciary powers over patents to a 'non-EU institution' raises questions over....wait for it...checks and balances.

We don't suggest that EU law is arbitrary (not that we would), but let's see if we got this straight. Establish three new EU financial supervisors - through a qualified majority vote - with binding powers over national supervisors in seven broad areas, and the mandate to interpret (i.e. quasi-judicial powers), apply and enforce provisions in over 20 separate EU laws (including initiating dawn raids against individual firms in the case of credit rating agencies) is no problem. But it's not okay to establish a Court looking only at patents? Meanwhile, it's okay to switch legal bases in various ways (data retention magically becomes a Single Market issue, eliminating national vetoes, working time becomes a health & safety provision, etc.).

There's a huge amount of arbitrary government in the ECJ's reasoning. If the Luxembourg judges were consistent, we would applaud their new found appreciation for checks-and-balances, but they're quite clearly not.

Sadly, it's the European economy and recovery that will suffer.

Now, if it is indeed the case that the ECJ is concerned about a body whose status as a non-EU institution is unclear, and about the absence of clear guarantees about how it would be bound by EU law and what kind of checks and balances would apply to it - which were all concerns flagged by the ECJ - then such concerns must apply to other bodies with similar a status as well, correct?

As it has turns out, the European Financial Stability Facility - the eurozone's €440 billion bail-out fund - is a non-EU institution, it's unclear whether it's bound by EU law (i.e. the no bail-out clause) and it's even more unclear what checks and balances apply to it (for certain no Parliamentary control).

So the EFSF must be illegal too right? Or are we missing something?

"She cannae take it Captain": ECJ ruling testing EU's PR machine to breaking point

We have been quick to criticise the EU's vast efforts dedicated to 'improving it's image' with citizens in the past but we're almost starting to feel sorry for the 'communications team' behind them.

Well not really, obviously, but when the ECJ makes daft decisions, like it did this week when it ruled to impose unisex insurance rates, increasing costs for consumers in the process, you really do have to wonder whether the EU's taxpayer-funded PR machine can cope.

With some exceptions, the public and media reaction across Europe has been a mixture of anger and bewilderment . Yesterday, picking up on our briefing on the ruling, a leader in the Times argued:

Many great changes have been made in the name of equality. Forcing women drivers to pay higher car insurance premiums is not one of them. It is extraordinary that the European Court of Justice has decided that what women drivers pay, for the simple act of getting behind the wheel, is a supranational issue. But having done so, it will have made many ordinary people aware for the first time of just what a complex web of issues is increasingly decided by a remote court that is suffering acutely from mission creep.

Unlike the prisoners' votes furore that was limited to the UK, this case has also stirred others across Europe to speak out against the judicial activism of Europe's supranational courts.

FAZ argued that:

Rarely has a court intervened so deeply into contractual freedom as the European Court of Justice has now...In this judgement the ECJ takes up the role of lawmaker in an astonishing way.

Czech business paper Hospodářské noviny:

Insurance premiums are based on statistics. Women cause fewer traffic accidents than men do, and so they pay lower premiums. Men, by contrast, have shorter life expectancies, and so they receive higher monthly pensions. That's all reasonable and logical. The European Court of Justice's decision to ban differentiations between men and women is unreasonable and illogical.

Spain's Cinco Dias wrote:

As [the Spanish insurance association] Unespa explained yesterday, putting this decision into practice will mean that both women and men have to pay more. This leads us to the conclusion that equal treatment won't result in lower insurance premiums and that it will be the consumers who end up paying for the consequences of this ruling.

In the immortal words of the man pictured, "She cannae take it Captain!"

The Charter of Fundamental Rights: It's alive!

Today’s ECJ ruling on insurance premiums, which will mean insurers can no longer offer different products and prices to men and women based on their sex from December 2012 (since that constitutes discrimination in the ECJ's eyes), has thrown up an interesting discussion about the Lisbon’s Treaty Charter of Fundamental Rights. It has passed under the radar of the media, which understandably have focused on the consumer angle.

The discussion on the Charter could appear boring but it’s actually very important.

This is because the UK negotiated a protocol on the Charter when the Lisbon Treaty was agreed, amid concerns that the Charter would take on a life of its own and impact on British rights legislation in ways that were deemed disproportionate or detrimental, either directly or indirectly. In fact, the protocol was one of the reasons cited by the previous government in support of not giving people a referendum on the Lisbon Treaty.

The Protocol states that the Charter “does not extend” the ability of the ECJ to find that UK law is inconsistent with the rights and principles elucidated in the Charter. Originally, the UK Government claimed to have an ‘opt-out’ from the Charter, but this was never accurate. Indeed then Europe Minister Jim Murphy eventually admitted: “It is clear that the UK does not have an opt-out on the Charter of Fundamental Rights.”

That’s history, unfortunately, but what isn’t history is today’s ruling. It’s clear that the ruling bases a significant chunk of its reasoning on the Charter of Fundamental Rights. It’s also clear that the ruling will have direct impact on the UK. In fact, the ruling will have a disproportionately large impact on the UK given that Britain is home to Europe’s largest insurance industry.

But despite drawing heavily from the Charter, there are no references to opt-outs for the UK in the ECJ’s ruling, or protocols or anything else. None.

And just to set this straight – in the ruling, the ECJ does base its reasoning on the Charter. The 2004 Gender Directive is the main driving force, but the Charter provides plenty of ammunition as well. Over on his Economist blog, Bagehot claims that we’re “not quite correct to say that the ruling was based on the Charter of Fundamental Rights, from which Britain supposedly has an opt-out. The court instead looked at a 2004 Gender Directive...”

This is just wrong. Looking at the full text of the ruling, it becomes clear that the ECJ rules that the insurance industry’s derogation from the Gender Directive is incompatible with both the spirit of the Directive itself AND articles 21 (non-discrimination) and 23 (equality between men and women) of the Charter of Fundamental Rights. Clauses 17 and 32 of the ruling put this beyond doubt:

“17. Articles 21 and 23 of the Charter state, respectively, that any discrimination based on sex is prohibited and that equality between men and women must be ensured in all areas. Since recital 4 to Directive 2004/113 expressly refers to Articles 21 and 23 of the Charter, the validity of Article 5(2) of that directive must be assessed in the light of those provisions (see, to that effect, Joined Cases C 92/09 and C 93/09 Volker und Markus Schecke and Eifert [2010] ECR I 0000, paragraph 46).”

And,

“32 Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.”

Now, we can argue about whether the Charter is creating "new legal rights" or is in fact the ultimate basis of the ruling (as opposed to the Gender Directive) . But this only shows why the UK's protocol on the Charter never was credible. Anyone who can read can see for himself that the Charter is inspiring the ECJ to rule the way it does on gender-based insurance premiums - which in turn has a huge impact on the UK.

In other words, the Charter is alive and well - also in Britain.

Combining everything that is wrong with the EU's judicial system

Over on Conservative Home, we take a look at today's ECJ ruling on insurance premiums, we argue:

This morning, the European Court of Justice ruled to scrap the insurance industry's opt-out from the EU's 2004 Gender Directive, which will mean insurers can no longer offer different products and prices to men and women based on their sex from December 2012.

This may appear like an everyday consumer story, but it's not. In fact, it's difficult to find an example which better illustrates why EU judges need to be reined in and David Cameron needs to revisit his election promise to limit the jurisdiction of the ECJ and the application of the Charter of Fundamental Rights, entailed in the infamous Lisbon Treaty.

Of the two European courts - the ECJ in Luxembourg and the European Court of Human Rights in Strasbourg (ECHR) - the former is clearly the one with the most influence. On occasion, the ECHR rules on highly symbolic and emotionally charged issues such as prisoners' right to vote - rulings which rightly get a lot of attention. But the influence of the ECJ creeps in to a whole range of areas, striking deep into British society and the economy, from working time for junior doctors to the governance of the UK's most important national industry - the City of London.

The ECJ's ruling this morning combines virtually everything that is wrong with the EU's judicial system. And there's a lot going on. Here goes:

Unnecessary cost of EU laws to individual consumers: Open Europe estimates that the insurance industry will have to raise nearly £1 billion extra to cover itself against the uncertainties created by the ruling - a large chunk of which is likely to be passed on to individual consumers. Moreover, taking motor insurance as an example, a 17 year old female driver will now have to pay an extra £4,300 in insurance premiums by the time she reaches the age of 26 as a consequence of the ruling. In a worst case scenario, women drivers' cumulative insurance costs between the ages of 17 and 26 could increase by as much as £9,300. Young male drivers would on average save an estimated £3,250 over the same period of time (despite displaying riskier behaviour behind the wheel), but the cost to consumers taken as a whole will clearly increase (and men will in turn lose out on their pensions, as a consequence of the ruling).

The unintended consequences of EU laws: Just as was the case with the Working Time Directive - which the ECJ has extended on eight separate occasions, imposing a huge cost on the NHS and the UK economy - the ruling shows how an EU law can change in the most unpredictable way after the UK government has signed up to it (lesson: don't sign up to EU laws without first thinking through all possible unintended consequences).

The EU's endemic democratic deficit: No one in the UK ever objected to the practice of charging men and women different insurance premiums, not individuals, not consumer groups, not UK judges and certainly not democratically elected MPs. And yet, this practice has been scrapped by judges that no one ever voted for, based on a case brought before the courts in a different country (Belgium).

Human rights legislation out of control: The ECJ argued that using gender to differentiate between male and female insurance policies is in violation of EU law on human rights, meaning that despite the fact that roughly 95% of driving offences causing death or injury are committed by young men, the judges could rule that - perversely - taking such evidence into account violates young men's rights. Is this really what human rights law should be about?

The blurring of the line between the ECJ, the Commission and the ECHR: In its ruling, the ECJ made references to both the European Convention on Human Rights, overseen by the Council of Europe (and not an EU institution) and the EU's Charter of Fundamental Rights. This sounds techy, but illustrates the complex web of European human rights law that is now in the hands of European judges at both the Council of Europe's ECHR in Strasbourg and the EU's ECJ in Luxembourg.

In other words, the case law of the ECJ and the ECHR is becoming progressively more blurred as EU judges continually make references to the European Convention on Human Rights in their rulings. In a lecture last year, the Lord Chief of Justice Lord Judge noted that, "The [EU's] European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg." This hugely confusing fudge raises a range of questions about accountability.

The UK government does NOT have an opt-out from the Lisbon Treaty's Charter of Fundamental Rights: Do you remember the claims that the UK had won an "opt-out" from the Lisbon Treaty's Charter of Fundamental Rights (supposedly one of the Labour Government's "red lines" on the Lisbon Treaty and an alleged reason why the promised referendum wasn't called)? Well, as we've argued again and again, there never was such an opt-out and this case clearly illustrates why. The Court draws heavily from the Charter in its ruling - and there's no question whatsoever of the UK not being affected by it. In fact, it impacts on the UK the most, as it is home to Europe's largest insurance industry.

The Conservative election manifesto promised to negotiate a firm opt-out from the Charter before Coalition politics became one of the new realities of life. It also promised to tackle virtually all the other problems so clearly illustrated by this ruling. The Coalition has taken some positive steps on EU reform, but how much longer can they dodge this key issue?

Beware of "government by judges"

It looks like the UK is not the only country where the confusing and expanding powers of the European Court of Human Rights and EU's European Court of Justice are testing nerves.

Marc Bossuyt, the President of Belgian Constitutional Court, has, for the second time, fired a warning shot at both the ECHR in Strasbourg and the EU's ECJ.

In a speech welcoming his Francophone colleague, he laments that the two European courts are taking on more and more powers by extending their competences, and warns that this is creating a serious threat of a "government by judges".

With the EU set to sign up to the ECHR this issue is only going to get more confusing (as we have already commented). With the wide variety of rights legislation at the European level continuing to expand, the inevitable overlap and possible conflict between the two courts will make the job of national governments and judges across Europe much harder. Collisions such as the one seen over prisoners' voting rights will become increasingly frequent, and it is not just the UK that is coming to this realisation.

What will be the consequences of the legal patchwork of European human rights?

With MPs debating voting rights for prisoners tomorrow, there has been plenty of media attention focussed on the European Court of Human Rights (ECHR). But what does this have to do with the EU?

Despite the often repeated misconception, the ECHR and the EU are separate beasts and the UK could potentially withdraw from the ECHR without having to leave the EU. However, it is also wrong to say that “the EU has nothing to do with the ECHR”, which a surprising number of commentators have over recent weeks.

As the briefing we published yesterday shows, future EU accession to the ECHR, the EU’s Charter of Fundamental Rights and the growing amount of EU rights legislation is blurring the lines between the two to the extent that is becoming increasingly difficult to separate them.

EU accession to the ECHR (the negotiations started last year) could allow ECHR rulings to impact on the UK through the back door. The UK would be forced to accept any EU law modified in response to an ECHR ruling.

The case law of the EU's European Court of Justice in Luxembourg and the ECHR in Strasbourg is also becoming increasingly intertwined with the ECJ referring to the European Convention on Human Rights more regularly.

And the EU's so-called “Stockholm Programme”, a five year programme for EU justice and home affairs legislation, will also grant EU citizens new rights that potentially go beyond the European Convention on Human Rights, particularly in criminal and judicial proceedings. Only last year the Lord Chief Justice Lord Judge made this very point, saying that: “The European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for [the ECHR in] Strasbourg.”

Lord Judge added,

“The EU has recently signed up to what is called a ‘roadmap’ of five areas of criminal procedure which must be addressed within the next 5 years to protect and guarantee the rights of EU citizens. I thought that was the job of the Convention.”

So, even if the UK Government does magically reach a compromise with the ECHR this will not be the end of it. The confusing array of rights at the European level is only going to become more so and the types of legal wrangling we are seeing over prisoners voting rights is only likely to occur more often.

A discussion on the need to bring back some control over human rights legislation cannot be limited to the ECHR alone, but must, as a matter of fact, also include the EU itself. A start would be to seek a cast-iron opt-out from the Lisbon Treaty's Charter of Fundamental Rights - which, incidentally, the Conservatives promised ahead of last year's general election.

So far the only thing that is for certain is that the consequences of this legal patchwork of European rights are as clear as mud.

This Government cannot be trusted on EU crime and policing

The torrent of EU justice, police and immigration laws keeps on coming and the Government keeps on signing up to them.

Home Office Minister James Brokenshire today told the House of Commons that the UK has opted in to the EU's cyber-crime directive. Now leaving aside the merits or drawbacks of the new law in question, this decision demonstrates the complete lack of democratic accountability that we've been highlighting over the past weeks and why we've been pushing for MPs and the public to be given more power under the EU Bill.

Not only did MPs not get to vote on whether the UK should sign up to this particular directive, the Government broke the European Scrutiny Committee's 'scrutiny reserve' to do so. MPs on the ESC considered the proposal late last year but did not clear it because they felt there were still questions for Ministers to answer about the plans. The directive sets "a maximum term of imprisonment of at least five years" for certain cyber-crime offences.

But there is another technical but hugely significant point. We've explained before that in 2014 the UK has the right to opt out of around 90-100 EU policing laws that came into force before the Lisbon Treaty took effect. On the other hand, if the Government decides to remain opted in, these laws will fall under the full jurisdiction of the European Court of Justice for the first time. The Government has said it will put this hugely important decision to a vote in both Houses of Parliament - something that we welcome.

However, the directive the Government opted in to today 'repeals and replaces' a pre-Lisbon law, meaning that there is now one less EU law the UK can opt out of in 2014. It also means that the Government has today handed jurisdiction over the area of cyber-crime from the UK courts to the ECJ. And all without Parliamentary debate or approval.

The Minister said that by giving an oral statement to the House he was acting in the spirit of Parliamentary scrutiny but this is, quite frankly, nonsense. What use is scrutiny after the event? The Government has made a decision and there's nothing anyone can do about it. Today's statement was just to put that fact on record.

Last month, Europe Minister David Lidington made a statement committing the Government to observe Parliamentary scrutiny and give MPs more opportunity to have a say on EU justice and home affairs opt ins. On today's evidence it doesn't seem the Home Office got the message.

To make matters worse, the Government also looks set to opt in to the EU's plans to make the telephone numbers, addresses, credit card numbers, email and other details of British air travellers available on demand to police forces across Europe. The Commission's current proposal covers flights between EU and third countries but, not satisfied with this, the Coalition wants the proposal stretched further to cover data collected on all flights within the EU as well.

MPs have again been sidelined and the Government is fast losing any trust that Lidington has been seeking to build on this issue.

Which MPs will stand up and be counted on the EU referendum lock?

The Government's EU Bill returns to Parliament next week, with MPs considering amendments to the 'referendum lock'.

At the moment there is no democratic control over which EU crime, justice and immigration laws apply to the UK – neither MPs nor the electorate have a say over these decisions, only the Government. With a new briefing published today, we have stepped up our campaign to see the Bill amended to give Parliament, and in some cases voters, a say over whether Ministers sign up to these laws.

The crux of the matter is that next week MPs have the chance to give themselves increased power over the Government, allowing them to debate and approve these hugely important EU laws that will have an impact on their voters.

And there is another hugely significant issue here.

Before 2014, the Government has to decide whether existing EU crime and policing laws (those introduced before the Lisbon Treaty came into force late 2009) continue to apply to the UK. If they continue to apply they fall under the full jurisdiction of EU judges at the ECJ.

This is a massive 'more or less EU' decision that should not be left entirely up to the Government, which it would be under the current Bill. This should be decided by the people or, failing that, Parliament.

Do MPs really want to explain to their constituents that they passed up on the opportunity to have a vote on EU crime or police laws such as the European Arrest Warrant agreed in 2002, which has seen numerous Britons extradited to other European countries on spurious charges?

These are laws that have a direct, and sometimes costly, impact on people's lives - this is no time for MPs to duck the question.

"Twenty years down the line, where will we be?"

Over the Bank Holiday weekend the Independent and the Telegraph both picked up on a lecture given by the aptly named Lord Chief of Justice, Lord Judge, last month, in which he warned of the growing influence of both the European Court of Human Rights (ECHR) in Strasbourg and the EU's European Court of Justice (ECJ) in Luxembourg. He concluded with a question that the Government has done everything it could to avoid: "Twenty years down the line, where will we be?"

Both papers chose to focus predominantly on his comments about the growing influence of judgements from the ECHR on the UK courts and how this poses a challenge to the UK's centuries old common law legal system. The answer, Lord Judge said, is to ensure "that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court."

The ECHR falls outside the realm of the EU, although, under the Lisbon Treaty, the EU as a whole formally acceded to the European Convention of Human Rights, which the Strasbourg court was established to uphold. And Lord Judge made some very interesting comments regarding this and the EU's growing role in UK criminal law more generally. They are worth repeating here as they went largely unreported at the weekend.

Lord Judge's first point was that "the [EU's] European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg."

He didn't expand much on this but it is an interesting point to watch in the future as there are clearly concerns that, with the EU acceding to the Convention, the remits of both courts has become blurred, with a risk of ECJ mission creep. The first practical example to which Lord Judge refers is that, "The EU has recently signed up to what is called a 'roadmap' of five areas of criminal procedure which must be addressed within the next 5 years to protect and guarantee the rights of EU citizens. I thought that was the job of the Convention."

It also raises difficult questions for the UK specifically, which can 'opt out' of much of the EU's new criminal legislation under the Lisbon Treaty but at the same time remains a signatory of the Convention of Human Rights - although David Cameron has said that he wants to review the Convention's impact on the UK. How will this work in practice, which will take precedence?

The second major point is that "The Treaty of Lisbon has brought criminal justice matters to the core of the EU and with it the jurisdiction of the Luxembourg court." This means that if the UK does opt in to new EU justice and home affairs legislation "decisions of the Luxembourg court on issues arising out of the Treaty of Lisbon, even to the extent that they involve criminal matters, would become binding on us all."

He concludes, "the development of the European Union, and the extended jurisdiction of the European court in criminal matters, will have a significant impact domestically. Twenty years down the line, where will we be?"

This is not just an interesting question but a very important one. You'd have hoped that it had been debated and answered long before the Government signed the Lisbon Treaty.

Infuriating and fatal

Over on Comment is Free we take a look at the simmering EU pay dispute, which took a new turn yesterday when the Commission decided to take all 27 EU member states to the ECJ over their refusal to increase their offer of a 1.85% pay rise for EU officials to 3.7%.

It seems it is not only us that think this is a ridiculous situation. An article in Die Welt by Brussels correspondent Hannelore Crolly argues that,

"It is a fatal decision for the EU Commission to argue over the increase in payment to 50,000 already well-paid employees in the face of objections from the debt ridden member states in court…In a deliberately insensitive and almost frightening way, the Commission is again sending the wrong message to the people, who it should be trying to win over for the European cause."

Similarly an article in Kölner Stadt Anzeiger argues: “The EU is fighting against the countries that support it. It is not just painful, it is infuriating.”

In today's WSJ Charles Forelle takes a critical look at the "compulsory method" that was used to arrive at the 3.7% pay increase demanded by EU civil servants and which has become central to the dispute. He notes that,

"To crunch the civil servants' cost-of-living adjustment, the EU's statistical office doesn't rely on Belgian data for housing costs. Instead, each year it surveys its own staffers, asking them how much they pay. The purpose isn't lost on those surveyed. A privacy statement attached to the survey says the data will be used "for the calculation of the annual salary adjustment."

He adds,

"Rent-survey data accounted for nearly all of the increase in the EU's
bespoke cost-of-living figure…Had the EU used the Belgian consumer-price index -
which fell 1.1% - to adjust the civil-servant salaries, the raise would have
been a more recession-friendly 1.7%, instead of the now-vilified 3.7%."

As we've argued before, with civil servants in Latvia seeing their pay cut by 25% and Ireland slashing 1.3 billion euros off its public sector wage bill, EU officials' refusal to accept a compromise wage increase of 1.85% does seem rather churlish, to put it mildly.

Downright scandalous

We had been forced led to believe by the powers that be that the ratification of the Lisbon Treaty (by hook and by crook) was meant to signal the end of the EU's internal wrangling and launch the EU into a new decade more outward looking and firmly focussed on the needs of its citizens.

However, the 40,000 - 50,000 or so EU bureaucrats in Brussels (and Luxembourg) plainly have other ideas. They have decided to start 2010 by taking all 27 member states of the EU to the European Court of Justice over their refusal to agree an inflation busting 3.7% pay rise. EU officials have been unwilling to accept a compromise offer from member states of a 1.85% rise.

Now this is so outrageous on so many levels that you would be forgiven for thinking this was a joke or something concocted by the most vehement eurosceptic. But if you're struggling to believe it, take a look here.

First, the pay rise itself. EU officials are paid well, very well. The basic monthly salary of the lowest pay grade is €2,550 per month, while a department head can expect to earn around €17,700 per month, and are paying special "community taxes" ranging from 8% to 45% (with the highest tax bracket applying only on wages above €6,700 per month). They receive all manner of benefits, including generous allowances for their children's education and very favourable pension arrangements.

Despite these benefits, EU officials are insistent that, in the worst recession for generations, they are entitled to more because "that's what the 'compulsory method' for calculating the figure says" and that it is a matter of "rule of law" as a Commission spokesperson delicately put it. Evidently, recessions can't penetrate the Brussels bubble and, even if they did, they would of course be superseded by EU law.

The scale of the brazen disregard for what is happening to Europeans elsewhere and the sheer bloody-midedness is quite frankly awesome.

Second, is the process by which this issue of the pay rise will inevitably happen be decided. You could cut the lack of democratic accountability with a knife. Today's decision to take the matter to the ECJ was taken by the 'College of Commissioners', which includes all 27 EU Commissioners and the UK's very own Catherine Ashton. The decision was taken by unanimity, so it therefore follows that the Baroness thought this a good idea too.

Because all the salaries of those directly employed by the EU institutions are based upon the same pay scale, the 27 EU Commissioners are also set to benefit from the additional 3.7%. Now Ashton's decision is not looking so silly (well, for her anyway). As Bruno Waterfield over at the Telegraph notes, Ashton will pocket an extra £9,000 on top of her basic annual salary of £241,000 if the commission's legal action is successful. But it does not stop there.

Not content with an assault on EU taxpayers' wallets, the Commissioners have made sure to insult their intellect for good measure. Commission spokeswoman Pia Ahrenkilde Hansen told journalists that due to the stalemate between member states and the Commission "Now it's for the court" to decide. Reading this at first glance one would think this reasonable - an impartial judiciary is just the job for such institutional difficulties.

But, hang on a minute, aren't the ECJ judges' salaries also based on the very same pay scale as all other EU officials? Why yes they are. Thank the EU for those checks and balances. The festive season may be over but the expression 'Turkeys don't often vote for Christmas' still very much applies.

The ECJ strikes again

We've just come across another hugely significant ruling by the European Court of Justice on the EU's Working Time Directive (WTD), which slipped largely under the radar last week. HR magazine People Management has the story.

Essentially, in the latest Pereda v Madrid Movilidad case, the EU judges' ruling opens up the possibility of employees 'reallocating' their annual leave if they are struck down by 'illness' while on holiday.

The employee in the case, Vicente Pereda, was injured shortly before his annual leave was due to start but his employer refused a request to move his holiday. The Court ruled that this was illegal under the WTD. Lawyers have warned that there is now no reason in principle why an employee whose holiday had already started could not claim the right to reallocate leave, if they were entitled to sick leave at the same time.

To call this a can of worms would be a gross understatement. How would employers be expected to police this in practice? Fly 'compliance officers' to the Costa Del Sol to verify a bout of food poisoning at the hands of a dodgy paella?

But there is a wider and more serious point about EU law here - that at the hands of the ECJ judges it can take on a life of its own.

Since the WTD was agreed in 1993 the ECJ has continuously extended the Directive's reach, ruling against national governments and increasing employment costs to both the private and public sector.

In November 1996, the EU's judges in Luxembourg ruled against the UK Government by determining that the WTD's legal base fell under health and safety rather than social policy, meaning the UK no longer retained its veto (which existed at the time).

In October 2000, in the 'SiMAP' ruling, the ECJ decided that time spent resident on call in a hospital or other place of work should count as working time, even if the worker is asleep for some of that on-call time. This has had a huge impact on the NHS, for example, as resident on-call doctors' hours were slashed.

In June 2001, the ECJ ruled that the UK was in violation of the WTD’s provision on annual leave.

In April 2003, in the 'Jaeger' ruling, the ECJ ruled that rest periods entailed in the WTD have to be taken immediately rather than within a “reasonable time” if the minimum rest period has been interrupted by an emergency. This causes huge problems for the rota system at British hospitals and the British Medical Association estimates that the effect would be tantamount to losing between 4,300 and 9,900 junior doctors.

In March 2006, the ECJ ruled that British firms that pay workers in place of their holiday entitlements – so-called rolled up holiday pay – were violating the WTD.

In September 2006, an ECJ ruling found that UK Government guidance on rest entitlement was incompatible with the WTD.

In January 2009, European judges ruled that employees on long term sick leave must remain entitled to annual statutory holiday pay upon their return to work. This means that staff can take their annual holiday built up while at home as soon as they return to work.

For more of our thoughts on the WTD, see here.

Now, one can debate the merits of each of these individual rulings but what is surely not in doubt is the immense power vested in the unelected ECJ to extend and interpret EU law as it sees fit. The ECJ is able to drive policy almost at will and yet it answers to no-one .

If only UK ministers had known that by signing the WTD all those years ago, they were creating their very own Frankenstein.