European court unlikely to end shopping conflict: A ruling due this week on the thorny issue of Sunday trading is a timely reminder of the wide-ranging powers of the Luxembourg judges
Unlike John Major, however, Judge David Edward will be lucky if his name is mentioned in the evening news programmes, and luckier still if any of the viewers know who he is. The role of a judge at the European Court of Justice may be important but it is certainly not high profile.
On Wednesday, the Court on which Judge Edward sits as the UK representative, will decide whether restrictions on Sunday trading in Britain fall foul of the Treaty of Rome. It appears certain that the court will dismiss arguments put forward by retailers who say the restrictions should be ended. Most observers expect the court to say that the 1950 Shops Act does not necessarily conflict with EC law, but that in essence the matter is one for British courts to decide. A lawyer with experience of the court said: 'The judges will ask themselves whether they really have anything to say about Sunday trading, and probably decide that they don't. That is what subsidiarity is all about.'
If so, it will be an ironic ruling, as this is one area where British ministers were keen for a decision to be taken out of their hands. Instead, the confusion over Sunday trading will almost certainly continue until the Commons decides whether the Shops Act should be liberalised or tightened.
But the ruling will also serve as a reminder of the court's power. The judges can review and overrule British legislation, as well as agreements reached by the EC heads of state. What legal force do the Danish opt-outs carry? It will be the court which decides. Is the British opt-out on the Social Chapter of the Maastricht treaty watertight? Again, only the 13 judges can settle the issue.
'Given the power and importance of the court, ignorance of its workings, not only in Britain but in other countries as well, is quite staggering,' a European Commission lawyer said.
There has, for instance, been little scrutiny of the way judges are appointed, or criticism of the fact that it is an all-male institution.
The judges are given their jobs by national governments with a 13th member appointed by the larger states to avoid even numbers and hence deadlock in split decisions. In Britain, the same sort of secretive procedures are used to select European judges as to determine who shall sit on the bench here.
Often confused with the European Court of Human Rights, which is based in Strasbourg, the Court of Justice has its seat in Luxembourg, a city almost totally given over to European union.
Critics of the court say that, at times, it too has dedicated itself to this cause, pushing its powers to the limit to force harmonisation of member states.
A senior EC lawyer said: 'The end of the 1980s and the early 1990s perhaps saw a resurgence of activism which tended to coincide with a failure of political will.'
But Judge Edward was more cautious in an interview with the Independent. The court was often accused of activism, when it was in fact reacting to cases brought before it. 'If you have an economic downturn, the natural reaction (of national governments) is to indulge in protectionism. The consequence of this is that the court will be called upon to say 'you cannot act like that'. That will be seen as intruding upon the autonomy of member states.'
He said that judges at the court were sensitive to the worries of people throughout Europe that community institutions were grabbing too much power. 'Because subsidiarity is explicitly part of the Maastricht treaty and because it's known to be of great political concern, then it's perhaps more to the fore as a point to be taken into account during the deliberations,' Judge Edward said.
Many lawyers expect the principle of subsidiarity to feature prominently in the Sunday trading decision this week. But they say it could be less prominent when the court comes to assess the Maastricht Treaty. In particular, legal sources expect the court to frown upon John Major's opt-out on the Social Chapter. 'It is by no means clear that in fact the opt-out will work. Britain might in the end be forced to adopt some of these policies, such as a minimum working week,' a senior EC lawyer said.
If so, Judge Edward could well become a high-profile figure in his own country at last.
As Voltaire once said, “Ice cream is exquisite. What a pity it isn’t illegal”
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