House approves clause on supremacy of European Court in EU matters

The House of Representatives yesterday approved a clause of the European Union Bill giving the European Court of Justice (ECJ) the final say in matters over which the European Union has jurisdiction. Labour MP Gavin Gulia argued that unless the constitution was amended to this effect there could be potential problems on the applicability of the ECJ's decisions in Malta.

The clause provides that decisions of the European Court of Justice will have supremacy in questions on the meaning or effect of the treaty and issues arising from it. The Maltese courts are to interpret the accession treaty and issues linked to it according to the principles and decisions of the ECJ.

Labour MP Marie Louis Coleiro asked for an explanation as to which courts were to be binding on Malta. She asked if the judiciary and the Commission for the Administration of Justice had been consulted about this clause and who else was consulted. Ms Coleiro also asked which other judicial institutions within the EU, the local judiciary would be subject to.

Foreign Minister Joe Borg replied that the EU acquis (body of laws) was now part of domestic law under conditions stipulated by the treaty and the decisions by European Court were binding on member states. However, decisions by the national courts of other member states would not be binding on Malta, and decisions by the Maltese courts would not be binding on the other countries.

The minister said that the members of the judiciary had not only been consulted but also trained about what the acquis actually entailed, in order to understand what the function of the Maltese courts was in the EU context. Some members of the judiciary had attended seminars and courses to be in a better position to interpret the acquis.

The minister explained that if there was a case in the Maltese courts and one of the parties or a court brought up a point which referred to EU regulations, the acquis, directive or decision, which was not clear enough for the court to interpret, the court should refer to the European Court for direction about the particular point.

Dr Gavin Gulia, opposition home affairs spokesman, said currently the court of appeal was the final stage of court proceedings. But once Malta joined the EU, the highest court would be the European Court of Justice. This was a court of final jurisdiction for EU members.

When Malta became an EU member there was to be another layer of the judiciary but this was not to be reflected in the constitution. Anyone who wanted to attack an EU directive could do so arguing that a decision by the European court was not applicable to Malta because it did not provide for transfer or common exercise of power.

The French, he said, had had to amend their constitution twice to introduce a transfer of power. If Malta did not amend the constitution it could have trouble in the future if someone attacked an EU directive or a decision by the European Court of Justice.

Justice Minister Tonio Borg said a court of appeal applied the legislation of the country. Malta had a criminal court of appeal, a civil court of appeal and the Constitutional Court. It did not have a Constitutional Court of Appeal. Malta's court of appeal was an ordinary court and it would not be breaching the constitution if it adhered to a decision taken by another court.

It had already been in this situation when it adhered to decisions by the European Court of Human Rights. No one could hinder a Maltese citizen from exercising his right to appear before that court, and the government had a duty to implement the judgment given by that court.

Likewise, if the European Court took a decision against Malta, the Maltese courts would have to observe that decision.

The minister said he could not see where the acquis was in conflict with the constitution.

Giving an example, Dr Gulia said that if Malta did not close the Maghtab landfill by 2004 and France chose to challenge Malta within the structure of the ECJ and this concluded that Maghtab should close, that decision would be binding.

His argument was not whether this was the right or the wrong decision but that Malta was duty bound to implement that decision.

However, he doubted whether recognising that judgment was valid according to the constitution. The constitutions of all member and acceding states included a clause to cater for the new reality. His preoccupation was that if Malta did not do the same, there could be those who might go to the ECJ and then problems would arise.

Foreign Minister Joe Borg said that the EU did not have jurisdiction over many issues and the ECJ did not go into issues which the EU had no jurisdiction over.

The Maltese courts took the final decision in such cases. But where the EU had jurisdiction, the final decision was the ECJs. Therefore as a member of the EU Malta had to accept that it was now also part of this jurisdiction.

He pointed out that the constitutions of member states were very different from each other and Malta did not necessarily have to amend its constitution because other countries did so.

The clause was agreed.