The Maltese courts are able to ask the European Court of Justice (ECJ) to clarify (interpret) European Union law, where there is doubt as to its meaning. If the Maltese court is the final court in the case (no further appeal lies) then that court is obliged to make this “preliminary reference” to the ECJ before deciding the case.
This ensures that different member state courts do not interpret Union law for themselves, which, otherwise, could well lead to different interpretations and the lack of uniform application of Union law across the bloc.
On the whole, it would seem that our courts have used the mechanism of the reference well. Yet, one occasionally hears a complaint that a reference was not made when it should have been. I will not here go into technicalities. I will just explain why it is important that a reference be made when there is any doubt as to the meaning (or validity) of Union law. As I said above, there is otherwise a real risk of lack of uniformity of application. Union law cannot mean different things in different member states.
However, there is an equally strong reason from a national constitutional perspective. At the time of joining the Union, every member state engaged in a “constitutional accommodation”. In Malta’s case, this was done by an Act of Parliament, following the expression by the people of their will (in democratic referendum) that Malta joins the Union. Union law was made effective by Maltese law, to the point where any other law or legal rule that was found to “conflict” with any rule of Union law would not be applied by our courts.
This can be seen as a “conflict resolution” principle which prefers one rule of “now Maltese law” (Union law brought into effect by law in Malta) over a conflicting (and usually predating rule) of Maltese law.
Therefore, our courts are empowered (and final courts are in principle bound) to enlist the ECJ in case of doubt as to the meaning of any rule of EU law and then to give that rule its full effect as interpreted by the ECJ. This, both as a matter of Treaty obligation and as a matter of Maltese law itself.
EU law cannot mean different things in different member states- Peter Xuereb
In the first 20 years, some half a dozen references were made. Not many but, then, not only does awareness of the possibility take some time but our small size and population will not often give rise to litigation on “unclear” points of Union law. Union law is usually “clear” and not difficult to interpret. The Union legislator endeavours to be clear.
The Maltese courts have shown themselves to be fully aware of the preliminary ruling mechanism. Lawyers will also draw the courts’ attention to the possible usefulness or need for a reference. Many Maltese judgments testify to the courts’ full appreciation of their role in ensuring that Union law is properly applied to cases which call to be decided in accordance with Union law.
Of course, awareness has grown and will be a matter of training for each new generation of judge and lawyer. But it would seem that the “lesson” has been well learned. This is not a question of “supremacy” of Union law over national law. More fundamentally, for each sovereign member state such as Malta, it is a matter of following our own conflict resolution rule and ensuring that the applicable “Union Maltese” rule is applied, and properly applied, in any case calling for its application.
The key point is that, in any case of real doubt as to the meaning of Union law, the principle of loyal cooperation, as well as democratic constitutional obligation, call for a reference to be made to the ECJ, which court remains solely competent of authoritatively declaring the meaning and purport of Union law.
Our courts appear to have performed well.
This article is part of the European Court of Justice’s celebration of 20 years since the accession of 10 states to the EU.
Peter Xuereb is a Judge at the European Court of Justice.