A perfect example of Britain's EU problems The European Commission's decision to trigger legal action against the UK for restricting access to benefits for some foreign nationals could hardly be better designed to turn British public opinion against continued membership of the European Union. Given the febrile nature of the political debate in Britain, referring the policy to the European Court of Justice (ECJ) is a crass move on the part of those who wish to keep the EU intact. On the other hand, it does bring into sharp focus the key issue that needs to be resolved between now and a possible referendum - the lengths we are prepared to go to in order to repatriate some of our lost sovereignty. The Commission says the UK's so-called "right to reside" test - which dictates the eligibility of EU migrants to claim benefits - is illegal because British citizens pass it automatically. Since it is the function of the ECJ to ensure the EU's rules are upheld, it will consider whether Britain is guilty of indirect discrimination for denying those from other member states access to welfare on the same basis. The Government is determined to fight what will be a lengthy and complex case. Iain Duncan Smith, the Work and Pensions Secretary, accused the Commission of trying to "water down" measures intended to protect the British taxpayer. "I will not cave in," he said. His defiance is commendable. But since the ECJ has jurisdiction on matters of EU treaty law, the UK will have no option but to accept its ruling - or else pay a massive fine, or leave the EU altogether. Britain will doubtless argue that other countries do not have to pay benefits to non-nationals in the same way. That is a legitimate grievance, but it has come about because the welfare system in this country was designed differently. Its universal, means-tested structure contrasts with forms of assistance overseas, which are often based on contributions, or backed by social insurance. However, the ECJ will not rule on whether Britain is disadvantaged relative to other EU countries, but whether it treats foreign citizens differently. This makes it especially difficult for the UK to prevent the abuse of benefits - and is precisely the sort of area that needs to be renegotiated ahead of a possible referendum. Indeed, it is incumbent upon Europhiles, if they want to persuade the public of the benefits of EU membership, to explain how they think the current position is fair and why it should not be changed - or, if it is unfair, what we can do about it. The Opposition says that it, too, believes the UK is entitled to operate a residency test - so we trust that Labour (and the Liberal Democrats, for that matter) can be relied upon to defend Britain's interests robustly as this case unfolds.