A court has quashed a decision by the University of Malta denying former politician and European Commissioner Tonio Borg promotion to professor, declaring that the decision amounted to an abuse of power.

The judgment pivoted upon Borg’s application for promotion in October 2022, having spent years lecturing within the Public Law Department at the University’s Faculty of Laws.

Borg became assistant lecturer in September 2016 and was then promoted to senior lecturer in February 2019, before moving on to associate professor in March 2020.

But his application for promotion to professor was turned down by the Promotions Board which declared Borg non-eligible since he had not spent eight years as senior lecturer or associate professor in terms of the collective agreement for university academic staff.

However the same agreement states that the time criterion may be partially compensated for by the applicant’s “contribution to University leadership roles, contribution to culture, the economy and society at large.”

At the discretion of the Promotions Board “these contributions may partially compensate for other criteria,” the agreement said.

In this case, Borg had occupied the role of Associate Professor for four years.

The University argued that the time criterion “automatically” rendered him non-eligible for the post and no service towards society in general and the University in particular could make up for that.

Borg challenged that interpretation arguing that it was “incorrect” and he took his grievance to the Education Commissioner within the Office of the Ombudsman, namely Chief Justice Emeritus Vincent Degaetano.

In his report the Commissioner concluded that the University’s interpretation of the collective agreement was wrong and recommended that the Promotions Board was to be newly composed to assess Borg’s application.

University’s behaviour was 'arbitrary'

Degaetano also declared that the University’s behaviour was arbitrary, possibly amounting to an unreasonable act made worse by the fact that no reasons were given for the refusal.

However in September last year, the University Rector wrote to the Commissioner stating that University refused to follow and act upon his conclusions, insisting that the “eight year eligibility criterion cannot be exchanged or otherwise compensated for with professional, political, philanthropic or other experience.”

The Council, the University’s highest organ, refused to delve into the merits of Borg’s application, saying that the matter was handled by the Promotions Board.

Borg called upon the University, by means of a judicial protest, to reverse its decision, but when even that step proved futile, he filed an action for judicial review of the administrative act in terms of law.

In his application he requested the First Hall, Civil Court to declare the University’s decision as ultra vires, amounting to an abuse of power since it ignored relevant considerations.

The University had also abdicated from its responsibility.

Borg also asked for payment of damages and requested the court to handle the case with urgency, arguing that unless he was awarded his promotion by October 2023 he would “irremediably and irrevocably” miss his opportunity for promotion.

The court upheld Borg’s request for urgency and wrapped up proceedings within five months.

When delivering judgment on Monday, Madam Justice Audrey Demicoli agreed with the conclusions of the Education Commissioner regarding the interpretation of the Collective Agreement, namely that “ the ‘other criteria’ for which partial compensation may be found in the applicant’s contribution ‘to the University, society, culture and the economy at large and the international community’ includes the criterion of years in one’s current post or grade.”

In light of jurisprudence, “any other interpretation would be…..unreasonable,” said the court.

Board rejected Borg's application out of hand

Although the Collective Agreement gave the board discretion in deciding upon such issue, it seemed that in this case the board “did not even get to the point of applying that discretion.” It declared that Borg was not eligible as soon as it was shown that he had not occupied his current grade or post for eight years.

The court said it did not believe that University’s decision was triggered by some prejudice which certain members of the University’s Academic Staff Association might harbour towards Borg.

However the court likewise did not deem that such promotion should be based solely upon the number of books published by the applicant without considering the impact his publications had within the academic scenario.

The board, the court said, did not even get to the stage of considering Borg’s contribution but simply stopped at the time criterion and that made such behaviour ultra vires and an abuse of power.

Whilst declaring the decision null and void, the court turned down Borg’s request for damages.

In doing so the court observed that its decision could not be interpreted in the sense that after considering all criteria, the University would automatically grant the promotion.

Hence it would not be wise to award damages once there was no guarantee that Borg’s application would be granted once all criteria were considered.

Moreover, the case had been dealt with urgently, reaching judgment stage within five months.

Lawyers Edward DeBono, Daniel Buttigieg and Nicholas Debono assisted Borg.