With the advent of Malta joining the European Union on May 1, EU law will become applicable to Malta. Various EU treaties, innumerable regulations, directives and decisions will become binding on Malta.
Furthermore, any question of interpretation of the EU laws will be heard in front of the European Court of Justice (ECJ). All this will make the legal profession the most influenced and challenged by EU accession.
In view of this, the Chamber of Advocates in collaboration with the Judicial Studies Committee and the Lord Slynn Foundation, organised a two-day conference for the judiciary and lawyers on Applying EU Law in Malta, last Monday and Tuesday, sponsored by the British High Commission, Westlaw International, the Malta Financial Services Authority and the Malta-EU Information Centre.
The conference, aimed at providing professionals in the legal field with an in-depth analysis on procedural and substantive EU law, was inaugurated by Prime Minister Eddie Fenech Adami.
Malta's accession is a step in the right direction that will have the effect of introducing and integrating into our law an improved system, Dr Fenech Adami said. The principles which the EU represents will thus be enforced, debated and contested in our law courts.
"This means that both our judiciary and the legal profession need to understand how this will work and what, in the long run, are its benefits to our country. A judicial system, which runs in conformity with established legal maxims in Europe, will guarantee trust from foreign operators in our milieu," he said.
He augured that the seminar would not be a unique occasion but the first in a series.
Introductory speeches were delivered by Chief Justice Vincent De Gaetano, British High Commissioner Vincent Fean, Judge Joseph D. Camilleri and Chamber of Advocates president Robert G. Mangion. Parliamentary Secretary Carmelo Mifsud Bonnici was also present.
The Chief Justice said Malta stands on the doorstep of great changes to its economic, social and political life. These changes have already, in part, begun to be reflected in our law, and will very soon be reflected also in the very set-up of our law courts.
"After the celebrations of May 1," he said, "all of us - judges, magistrates, lawyers, judicial assistants, legal procurators, registrars, deputy registrars - will have to face up to the reality of a new corpus juris, with which not all of us can claim, to date, to be familiar."
He said that the setting up of the Judicial Studies Committee was instrumental in advancing the co-operation between the Bench and the Bar. However, it has as yet not been allocated any funds to enable it to work independently of the Ministry of Justice, which was one of the goals when the JSC was initially founded.
He also said that there is still much more to be done from a practical aspect. He mentioned that "the library at the law courts is still without even the minimum requirements in terms of EU legislation and books on EU law.
"We need more full-time judicial assistants or other research officers well versed in EU law to assist the judiciary. And we also need a qualified person who can act as an EU liaison officer or co-ordinator in matters concerning the EU."
Mr Fean said he was struck by three things: "Our shared knowledge, our shared interests, and our shared wish for sustained follow-up to our current efforts in the EU context."
The conference was all about sharing knowledge, he said, pointing out that there are already countless ties between Malta and the United Kingdom.
On shared interests, Mr Fean referred to a quote from The Times of Monday regarding the Prime Minister's joint message with British Prime Minister Tony Blair to mark Commonwealth Day: "It is no surprise that we share the same vision of the new Europe: a Union of sovereign states, proudly diverse, with strong traditions of parliamentary democracy, electing to share national interests by common accord in well-defined areas, for our mutual benefit."
He said: "One relevant example of Maltese-UK co-operation in the European Union is the current Inter-Governmental Conference, where our views converge. And, specifically, both our countries seek an early outcome to the IGC in which matters relating to criminal procedural law will remain subject to agreement by a unanimous decision, rather than by a majority vote."
Judge Camilleri said that in view of the challenges the legal profession will start to face come May 1, the Judicial Studies Committee has embarked on a project in collaboration with the Chamber of Advocates, to give the opportunity to professionals to be exposed to the experience of distinguished foreign speakers.
"This will surely provide us with a map with which we can plan our journey and successfully meet the exciting challenges that are ahead of us," he said.
Dr Mangion said that probably no other profession would be influenced and conditioned by the change as the legal profession. It is therefore important that the judiciary and lawyers receive ongoing training, not only through academic background but also with practical training on how to access the European Courts of Justice.
The conference was the starting point of a process that would assist professionals to be competent in legal matters that have a European dimension, he added.
A number of distinguished UK professionals - Lord Slynn of Hadley, David Vaughan, CBE, QC, and David Lloyd Jones, QC - were brought over to share their knowledge and experience on the practical application of EU laws. The panel was also composed of Magistrate Silvio Meli, Dr Simon Busuttil and Dr Ian Spiteri Bailey.
Given that disputes over interpretation and applications of EU law in national courts have recourse to the ECJ, Lord Slynn of Hadley, a former judge at the European Court of Justice in Luxembourg and chairman of the Executive Council of the International Law Association, explained that the ECJ does not have jurisdiction over every possible aspect of the law.
He said the ECJ has three main functions:
1. it can hear claims by the European Commission that a member state has not fulfilled an obligation;
2. it can hear claims by member states that the European Commission has exceeded its authority; and
3. it has jurisdiction over references from national courts in the EU member states, asking the ECJ to interpret a particular EU law.
He also explained that lawyers have to distinguish between written stages and oral proceedings.
Mr Vaughan, leader of the European Circuit of the Bar of England and Wales, and chairman of the Executive Council of the Lord Slynn of Hadley European Law Foundation, said Community Law has achieved high marks not only in relation to the checks on the legality of laws, but also on the ability of citizens to enforce those rights and the availability of remedies.
He said the citizens' rights and duties do not entirely emanate from the EC Treaty but emerge from ECJ judgments, such as the van Gend en Loos case, which paved the way for the concept of direct effect, the Simmenthal case on the supremacy of EU law, and the Factortame case with which the ECJ provided for damages for the introduction of national law.
In these cases and in others, the ECJ had a choice: whether to rule in favour of the rule of law and create a Community law designed to protect individuals; or to adopt a more cautious approach and make Community law simply a matter for dispute between member states and EU institutions.
Either of these choices could have been justified without difficulty as both were backed with a legal basis. At all times, the ECJ chose in favour of rights and remedies for the individual.
Mr Jones, in practice at the Bar of England and Wales since 1976, explained another important function of the ECJ - hearing references from national courts for preliminary rulings to clarify the scope and meaning of European law.
Rulings made by the ECJ are then binding on courts in all member states, ensuring that the law is uniform throughout the EU. He referred to Article 234 of the EC Treaty (ex Article 177), which gives the ECJ jurisdiction to give a preliminary ruling on the interpretation of the EC Treaty, the validity and interpretation of acts of the institutions of the Community and the ECB, and the interpretation of the statutes of bodies established by an act of the Council, where those statutes provide.
The ECJ will then give a ruling and return the case to the national court to be disposed of. The ECJ is only permitted to aid in interpretation of the EU law, and not to decide the facts of the case itself.
He explained that the system is judge-controlled because it may only be sought by a national court, which alone has the power to decide that it is appropriate. However, all the parties involved may take part in the proceedings before the ECJ. The system carries the advantages of ensuring conformity - reached through the high expertise of the ECJ judges - given that no monitoring is carried out by the Commission.
He said while some references are discretionary, leaving the decision on whether to appear in front of the ECJ to obtain a preliminary ruling in the hands of the national judges, other references are mandatory.
Mandatory references are required where any issue is raised in a case pending before a court or tribunal of a member state against whose decisions there is no judicial remedy under national law (in Malta's case it is the Constitutional Court; in UK's case, the House of Lords; in other member states, the Supreme Court), and regarding questions of invalidity of European law.
On the other hand, Mr Jones explained that discretionary references may be referred to the ECJ where a decision is necessary to enable a national court to give a judgment and the matter relates to any of the following: the empowering Article 234, the Accession Treaties, acts of institutions of the community, any EC Treaty, and any point of EU law, even if it arises in the application of a national law.
As to the existence or otherwise of a necessity, which is required by the ECJ vis-à-vis discretionary references, Mr Jones said that while traditionally the court was seen to be flexible and tolerant in assessing necessity, it has recently been seen to adopt stricter guidelines.
The ECJ may also rule that a reference is inadmissible if: it does not relate to an EU law; the question is irrelevant; the question of necessity was not considered at all; there is no dispute involved; inadequate statement of facts or national law; the case related to a political issue; and it is in conflict with Article 230.
The ECJ rules on the law; it declares what the relevant Community law is. The national court to which that ruling is addressed must apply the law, as interpreted by the Court of Justice, without modification or distortion.
A ruling on interpretation by the Court also serves as a guide for other national courts dealing with a substantially similar problem or a question on which a preliminary ruling has already been given.
Dr Busuttil opened Tuesday afternoon's session with an overview of the Accession Treaty and Malta's ratification law. He said the Accession Treaty is structured in four: the treaty, the act, 18 annexes - of which Annex II contains a very detailed set of technical adaptations - and the final act with protocols and declarations.
Article 3 of the EU Act is of particular importance, since it states that, as from May 1, the treaty and existing future EU law will be binding on Malta and be part of domestic law. Furthermore, any Maltese law which, as from May 1, is incompatible with EU law, will be without effect and unenforceable.
To give effect to Article 3, the prime minister, minister or competent authority may make provision to implement obligations of Malta or enable obligations to be implemented or enable rights to be enjoyed by Malta. He may also adopt future EU law, which will not have retroactive effect or create criminal offences punishable with imprisonment of more than two years or with a fine of more than Lm10,000.
Dr Busuttil also cited Article 7, which amends the Constitution of Malta, which now states that Parliament may make laws for the peace, order and good government, in conformity with full respect for human rights, generally accepted principles of international law, and Malta's international and regional obligations, in particular those assumed by the Treaty of Accession to the EU signed in Athens on April 16, 2003.
Magistrate Meli gave an overview of the Maltese judicial order and discussed whether the Maltese legal system will be moving in the direction of absorbing a third legal source and whether this is at all sustainable and for the common good.
Our legal system is in effect the end product of a prolonged, complicated and meandering fusion of contrasting legal cultures. The end result is in effect a harmonious synthesis of two major European legal cultures, giving rise to a unique corpus of law that easily and happily blends Continental and Anglo-Saxon law to the benefit of all. In itself, this is something of a rarity and definitely allows for further juridical development.
"The European Community can be said to be the latest development and source of Maltese legislation," Magistrate Meli said. "As Malta seems to be determined to become part of this unifying process an upgrading exercise has been undertaken under the tutelage of the European Community.
"However, conscious of the fact that the challenge of the Third Millennium is the intensification of international cohesion, it is to be noted that even prior to this exercise a new corpus of law was already gradually emerging and was aimed at upgrading local laws to international principles, institutions and developments.
"If history and experience are good and judicious mentors, our legal roots should prove sturdy enough to withhold the edifice of future developments for the common good."
Dr Spiteri Bailey discussed the ECJ's judicial activism, that is how a judge applies the law to the facts of the case before him. An 'activist judge' makes up the law as he goes along in giving judgments.
Judicial activism has also been described as the courts' reading the Constitution with a modern eye, allowing judges to update the Constitution for contemporary circumstances not anticipated by the framers.
He said that it is undisputed that the ECJ has over the years developed a personality of its own within the Community and has helped in the construction of what the EU is today.
"So important has the ECJ been to the development of the Community, that some of the concepts which are fundamental to the way in which the Community functions are to be found not in the Treaties themselves, but in the case-law of the court.
"To achieve this state of affairs, the ECJ has in some instances been judicially active in its approach and adopted a theological approach fit to achieve its aims. The debate has always been on how far and to what extent this approach is acceptable," he said.
Judicial activism by the ECJ has given rise to much criticism, albeit not necessarily always justified.
In "filling the gap", the ECJ made use of general principles of law, a source of law, which both international and national courts have traditionally used to fill perceived lacunae in their legal systems, and Article 234 of the EC Treaty which sets out the basis of preliminary references, which were discussed earlier.
Dr Spiteri Bailey concluded: No matter how critical of the ECJ's activism some authors have been, the fact remains that not only member states, but also their highest and supreme courts have come to accept the most important doctrines established by the activist ECJ.