The first crack

We have reported before about the smoking ban in the Netherlands, and the attempts to have it overturned (or upheld, as the case may be). See here and here.

At the time we reported how judges in Breda ruled the smoking ban in bars and cafés in breach of Article 1 of the Dutch constitution. The court in Breda said the smoking ban treated the owners of cafés with and without additional personnel differently. According to the court this amounts to a breach of the non-discrimination principle laid down in Article 1 of the Dutch constitution. ence, it acquitted the owner of the Victoria café in Breda, voiding the 1200 euro fine and a lock-down of 6 months.

In the aftermath Minister Klink (p) vowed to appeal the verdict. About the then upcoming hearing at the Breda appeals court, where the first blow to the smoking ban was struck, we predicted at the time that our government would see to it that it
will undoubtedly have received guidelines from the Justice department, pointing out the treaty obligations we as a nation have in implementing every brain fart emanating from the hallowed halls of Brussels, by the time the appeal hits this august body.
How wrong I was! I usually hate that, but in this case I can happily (if somewhat flabbergasted) report that the Breda appeals upheld the decision of the lower court: Appeal court overturns smoking ban.
Small cafes without staff do not have to comply with the ban on smoking, the appeal court in Den Bosch ruled on Tuesday.

The court said there are 'no clear legal grounds for introducing and upholding such a ban in small cafes and bars,' the Telegraaf reported on its website.

That means the tobacco law which came into effect in July 2008 does not apply to small cafes without employees, the paper quoted the court as saying.
Especially the verdict that there is 'no clear legal grounds for introducing and upholding such a ban in small cafés and bars' must really hurt!

Al this means that in practice small pubs without personnel are breaking out the ashtrays again. The minister has vowed yet again to go to appeal before the Court of Cassation (the Supreme Court, if you will). In theory these learned justices may still overturn the verdicts by the Bread Court and Appeals Court. But given the hue amount of public resentment against the ban, it Court of Cassation also may just be moved to interpret the law in a favourable manner.

Later this week there will be an emergency session of Second Chamber, called by the liberal conservative VVD and Geert Wilders' PVV. The former want guarantees from minister Klink that small café owners are henceforth left alone. The latter, unsurprisingly, want the whole ban lifted. A lot of commentary is about heaping scorn on the poor minister, with some even suggestion the minister should resign over this resounding defeat.

Rather dismayingly: Nowhere in the reporting on this surprising verdict can we find any hint about the presence of that large, gold-starred, blue elephant in the room. To repeat ourselves (and yes, I do get tired of reading myself, sometimes): In all of this minister Klink is nothing more then a mid-level functionary doing the bidding of our real masters: the EUnion. Measured against the discretionary powers he has in matters such as this, Klinks ministerial salary is a gross overvaluation of his position.

And that is also why this verdict today is of some importance: Here a Dutch Appeals rules the blanket ban 'suggested' by the EUnion in violation of the law, despite the fact that the law says we have to abide by the treaties. They in turn spell out the supreme authority that the unelected cabal of bureaucrats in Brussels. More then that, it would seem to me that todays verdict reinforces similar verdicts in Belgium, Germany and elsewhere. Hence, today's verdict is a direct challenge to the bosses in Brussels. It is an assertion of national power over transnational dictat.

It remains to be seen how the EUnion and their gophers in our government respond. But, as Elsevier reported (NL), minister Klink has already stated his tacit support for 'creative solutions' to circumvent the smoking ban. Solutions such as serving the drinks from a back room or storage locker, so that customers in the main room can freely light up. Is out local government tiring of Brussels meddling? Is the impending total failure of the smoking ban the first real crack in the EUnion?

Hope springs eternal... And until then:

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