The confirmation of Ursula von der Leyen as president of the European Commission has elevated rule-of-law issues to one of the main themes of the incoming commission. For Malta this signifies a gathering of clouds coming on top of the resolution adopted at the Council of Europe’s Parliamentary Assembly last month which stated that “if Malta cannot or will not correct its weaknesses, European institutions must intervene”.

Mrs von der Leyen told the Parliament: “Lady Justice is blind – she will defend the rule of law wherever it is attacked.” She also pledged to give new powers to the EP to propose laws and to appoint a vice president from the Liberal grouping in a signal of unwavering attention to rule of law. The growth in ranks of Liberal and Green MEPs is also expected to increase pressure on the Commission to act decisively on deficiencies in this area in a handful of Member States that include Malta.

There have already been ruptures in mutual trust involving Malta, most notably in the Greek courts’ rejection of a request by Maltese courts to extradite Maria Efimova – a source of Daphne Caruana Galizia – due to fears on fair-trial guarantees.

The new commission will get to work with its hand strengthened by the judgment of the European Court of Justice on Poland a month ago, which found for the first time that a law that could impinge on judicial independence was in breach of Article 19 of the EU Treaty.

The easiest battleground for the commission to act on Malta would be in the deficiencies that exist around judicial independence, given the indispensability of the courts for the democratic order, the perception of creeping capture of the courts by the government and the Venice Commission’s emphasis on judicial independence in its Malta report. 

Venice Commission reports can be a point of reference in European courts. Yet the government has gotten off to a bad start in implementing its recommendations. The Justice Minister presented the State Advocate Bill as the first step but the new law goes against the spirit of the recommendations by retaining the Prime Minister’s power to appoint both the Attorney General and the new State Advocate.

All of this is feeding into the growing realisation in European legal and political circles that something has to be done about Malta. The EU Commission has already been engaging with the Maltese government and last month called on Malta to “strengthen” judicial independence through reform in appointments and the dismissal system.

Another factor is the ongoing constitutional lawsuit over judicial appointments filed by the NGO Repubblika.

If the lawsuit gets bogged down in court processes or is thrown out on a technicality, and the government remains intransigent, the pressure on the Commission to act will intensify. And it can move expeditiously: in the case of Poland it issued a ‘reasoned opinion’ with a deadline of a month and at the expiry of the deadline a case was filed at the European Court of Justice.

If one of the supreme courts in Europe, whether the Luxembourg or Strasbourg court, had to rule that Malta’s system of judicial appointments – and the latest appointees – are in breach of EU law or human rights provisions, it could have potentially treacherous ramifications. It could open many judgments to challenge.