UK Edition
The British judiciary has begun to draw its sword. For the first time since the European Court asserted supremacy and launched its long campaign of teleological conquest, our own judges are fighting back.
It is the first stirring of sovereign resistance against an imperial ECJ that acquired sweeping powers under the Lisbon Treaty, and has since levered its gains to claim jurisdiction over almost everything.
What has emerged is an EU supreme court that knows no restraint and has been captured by judicial activists - much like the US Supreme Court in the 1970s, but without two centuries of authority and a ratified constitution to back it up.
This is what the Brexit referendum ought to be about, for this thrusting ECJ is in elemental conflict with the supremacy of Parliament. The two cannot co-exist. One or the other must give.
It is the core issue that has been allowed to fester and should have been addressed when David Cameron went to Brussels in February to state Britain's grievances. It was instead brushed under the carpet.
The explosive importance of Lisbon is not just that it enlarged the ECJ's domain from commercial matters (pillar I), to broad areas of defence, foreign affairs, immigration, justice and home affairs, nor that this great leap forward was rammed through without a referenda - after the French and the Dutch had already rejected it in its original guise as the European Constitution.
Lisbon also made the Charter of Fundamental Rights legally-binding. As we have since discovered, that puts our entire commercial, social, and criminal system at the mercy of the ECJ.
The Rubicon was crossed in Åklagaren v Fransson, a VAT tax evasion case in non-euro Sweden. The dispute had nothing to do with the EU. The Charter should come into force only when a country is specifically applying EU law.
The ECJ muscled into the case on the grounds that since VAT stems from an EU directive, Sweden was therefore operating "within the scope of EU law". This can mean anything, and that is the point. To general consternation, it ruled that Sweden had violated the double-jeopardy principle of Article 50 of the Charter.
Almost nothing is safe when faced with a court like this, neither the City of London, nor our tax policies or labour laws, nor even our fiscal and monetary self-government. The ECJ can strike down almost any law it wants, with no possibility of appeal.
The German constitutional court was so irritated by the Fransson case that it fired off a warning shot, effectively accusing the ECJ of acting "ultra vires" and beyond its powers.
This has not chastened Luxembourg. The court has ruled repeatedly and aggressively on the basis of the Charter, and Britain is not immune. It stopped the UK deporting an Afghan immigrant, and blocked the sharing of electronic data with the US anti-terror authorities - a ruling that caused chaos for Google, Facebook and others.
So much for the assurances of Britain's Europe minister at the Biarritz summit in October 2000 - to me as it happened - that the Charter had no more legal standing than "the Beano".
Britain tried a second line of defence in the Lisbon Treaty, painstakingly negotiating a cast iron legal exemption along with Poland known as Protocol 30. "It is absolutely clear that we have an opt-out," said Tony Blair to the Commons in June 2007.
This was simply brushed aside by the ECJ in a key ruling in 2013. We learn too late that Protocol 30 is somehow just a "comfort clause". The UK Justice Department has sheepishly admitted that it offers no shield at all and there is nothing they can do about it. "The Charter is now very much part of our law," it says.
It has fallen to the UK Supreme Court - quietly emerging as a force to be reckoned with - to question whether the escalating claims of hegemony by the ECJ are legal, and what we can do to stop it.
Britain is especially vulnerable to judicial overreach. The ECJ is informed by a corporatist philosophy under Napoleonic law, prone to consider everything forbidden unless codified, in contrast to the very different enterprise spirit of English Common Law. But the clash does not end there.
Lord Mance said Parliament gave the ECJ a blank cheque when it drafted the 1972 European Communities Act in such a way as to give the EU a higher status. "No explicit constitutional buttress remains against any incursion by EU law whatever," he said.
We lack the defences of Germany, where the top court refuses to accept the primacy of the ECJ and reserves the right to strike down any EU law that conflicts with Germany's Basic Law.
David Cameron promised a 'sovereignty bill' that might have done something to rectify this problem, either by revising the 1972 Act or by giving the UK Supreme Court powers of 'ultra vires' review to determine whether the ECJ is itself flouting EU law. He never did so. The pledge was merely intended to keep Boris Johnson onside.
Matters are coming to a head anyway. The ECJ carelessly trampled on England's 1689 Bill of Rights in environmental rulings, taking a stance that impeached Parliamentary prerogative and implied that the ECJ had the power to forbid a minister from introducing a bill in the Commons. The issued came to the surface in a case involving the HS2 high-speed railway.
"It is difficult to imagine a more flagrant interference with the proceedings in Parliament," thundered Lord Reed. The Commons clearly did not intend this in 1972. He stated that the UK Supreme Court would strive to work in harmony with the ECJ but if there was a clash it would be resolved "by our national courts and as an issue arising under our constitutional law." Hurrah.
The unanimous ruling by UK chief justice Neuberger and a roster of star judges on this case in 2014 was a thunder clap. Lord Neuberger warned that no British court could accept an assault on the Bill of Rights and went on to sketch the outlines of a new legal order.
"The UK has no written constitution, but we have a number of constitutional instruments," he said, citing the Magna Carta, the Petition of Right 1628, and the Bill of Rights, among others. These are now our equivalent to Germany's Grundgesetz.
Parliament did not intend to abrogate these "fundamental principles" when we joined the EU, nor did it authorize such a revolution. Law professor Adam Tompkins said the ruling is a "devastating assault on the way in which the ECJ manipulates European law".
To drive home the point, the court ruled separately in the 2015 Pham case that it will henceforth decide "for itself" whether the ECJ has crossed any lines. The era of subservience is over.
We are at last willing to defend our own sovereignty rather than relying - like a castrated colony - on the brotherly goodwill of the German court, which is not attuned to Britan's quirky system of Parliamentary supremacy and acts only in the German national interest in any case.
I confess a bias. As the Telegraph's Brussels correspondent long ago I covered three free speech cases at the ECJ - Connolly, Andreasen, and Tillack - and in each one the court rubber-stamped abuses and served as the enforcer of executive power. It acted as a Star Chamber.
My friend Hans-Martin Tillack - a German investigative journalist - was arrested by Belgian police at the behest of the Commission on false charges and held incommunicado for ten hours. They seized his computers, address books, telephone records and 1,000 pages of notes, compromising all his sources.
The International Federation of Journalists said it was a "flagrant violation" of press protection, and made it "virtually impossible" to carry out investigative reporting in Brussels. Yet the ECJ ruled against Mr Tillack, brushing aside 50 years of international case law. It said the Commission had done nothing wrong.
I cite the saga because there is an exact parallel in British history. In the Entick v Carrington case of 1765 the courts ruled that the seizure of papers from the house of a publisher - and his detention for four hours - was an exercise in "arbitrary power" and a breach of the Magna Carta. The Wilkes case was the foundation of British free speech.
It is too early to say whether the UK Supreme Court alone can protect the British people from the depredations of the ECJ. But before we vote for or against Brexit, let us at least be clear exactly who the enemy really is.
* The reference to the HS2 case has been modified. The controversy over the Bill of Rights came to a head in the HS2 ruling, but stemmed from earlier ECJ rulings.
Britain's defiant judges fight back against Europe's imperial court