Malta’s protests against the controversial Frontex EU border agency rules may soon be upheld after the European Court of Justice received a recommendation to declare the regulations null and void.

I have always found it deeply disturbing that the country that most needs the support of Frontex felt it could no longer participate- Busuttil

According to the ECJ’s Advocate General, the EU went beyond its powers in imposing the new rules and they should be thrown out.

The “objectionable” rules included the provision that all irregular migrants saved on the high seas should be disembarked in the host country of the mission instead of the closest safe port, in line with international rules.

As a consequence of the 2010 rules, Malta had stopped taking part in the Frontex missions on grounds that the island would be inundated with irregular migrants fleeing Libya.

In a lengthy opinion given to the court last week in Strasbourg, the ECJ’s Advocate General agreed with arguments against the rules brought by MEP Simon Busuttil and sustained by the legal services of the European Parliament. He recommended that the court should annul the rules until new ones are enacted. The legal challenge was instituted two years ago.

The ECJ’s final judgment, which normally follows the letter the opinion of the Advocate General, is expected in the coming weeks.

It will mean that rules of engagement for anti-irregular migration missions conducted by Frontex will have to revert to the original text, which was acceptable to Malta.

Dr Busuttil said he was delighted that the Advocate General upheld his arguments and declared the EU’s decision as invalid.

“Apart from the procedural arguments against this decision, there are also important political implications for Malta,” Dr Busuttil told The Sunday Times.

“I have always found it deeply disturbing that the country which most needs the support of Frontex – Malta – felt it could no longer participate in Frontex missions in the Mediterranean under the unfair conditions imposed by this decision.

“This is why I convinced the European Parliament to challenge this decision. The AG’s opinion therefore paves the way for Malta to re-engage with Frontex and benefit from its support if it needs to do so,” he said.

Two years ago Dr Busuttil, who leads the European People’s Party in the Civil Liberties Committee, had won the support of all political parties, except the Socialists, in his committee when proposing this challenge. His move was later endorsed by the Legal Affairs Committee, which has the final say on the EP’s court cases.

Malta had vehemently opposed the rules at Council level but was outvoted by the other member states.

At EP level, the rules were vigorously challenged by Dr Busuttil and a motion to reject them narrowly fell short of the required absolute majority.

If the AG’s opinion is now confirmed by the European Court of Justice judges, the rules will have to be re-written from scratch.

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