The nationality clause

Graham Petley writes:
The Times reported a court case (November 3) where a landlord was unable to evict an emphyteuta. The judge ruled that under the Housing Decontrol Ordinance as amended in 1979, section 12(2)(b), where the emphyteuta was a Maltese citizen, the emphyteuta was entitled to continue to occupy the premises under the title of lease.

Now that Malta is a member state of the EU, I do not think local law can discriminate in favour of Maltese citizens over other EU citizens. Is this the case? If so, then how will a law like the Housing Decontrol Ordinance be affected? By equating the rights of EU citizens to those of Maltese citizens so that EU citizens are also protected from eviction? Or the reverse, so that a Maltese citizen can be evicted in the same way as an EU citizen?

I am sure there are other similar laws and it would be useful to know in a general way how they will be affected.

The reader raises a very interesting point regarding Maltese laws that give a preference to Maltese citizens and whether this preference needs to be removed because of EU law.

Let me explain the basic principle at stake before coming to the specific case raised by the reader.

EU membership implies that, within the scope of the areas of competence of the Union, any discrimination on the grounds of nationality shall be prohibited. This means that one cannot retain any preference for Maltese nationals with respect to other EU citizens.

This "non-discrimination" principle only applies within the sphere of action of the Union. But given that the Union's competence covers vast areas, one can safely assume that the principle should be considered as applicable as a rule, although there are exceptions.

For instance, the principle certainly applies to the right of EU citizens to move freely, reside, work, study, train and even retire in any part of the EU territory. Any discrimination that touches upon these rights, whether directly or indirectly, is prohibited. If the law still makes reference to a given right being available only to a "citizen of Malta" then that clause must be replaced by reference to "citizen of an EU country". If it is not, then one can safely interpret it as having been superseded by virtue of our European Union Act of 2003, which ratified our Accession Treaty.

Thus, for instance, our law can no longer state that only Maltese nationals may obtain a warrant to practise in any given profession since this is clearly linked to the EU principle of free movement and is therefore prohibited.

The nationality requirement is only justified in exceptional cases where the activity concerned includes the exercise of official state authority. Reserved areas include high posts in public administration as well as members of the judiciary, the police or armed forces. But in other sectors where there is no direct and specific exercise of executive authority on behalf of the state, the national clause may no longer be retained.

Recently, the European Commission instituted legal proceedings against as many as 16 member states, including Malta, because they still apply the nationality clause with respect to notaries. The countries concerned, Malta included, claim that, in fact, notaries do exercise certain state functions. But the Commission rebuts that notaries do not take decisions with regard to state authority and that therefore they cannot be considered as exercising such authority.

This will be an interesting case to follow.

In other areas where the EU has little or no powers, the case for removing the nationality clause is not always evident. The obvious case relates to the granting of nationality itself and the right to vote in general elections. Both these powers are clearly outside the EU remit and lay firmly at national level. The nationality clause may therefore continue to apply here.

Other less obvious cases include the granting of certain social benefits. It is not at all evident that social benefits are available to all EU citizens even if they live on the other side of the continent. But two weeks ago, in this column, I argued that benefits should be granted to other EU citizens if they have established a genuine link with Malta, such as by residing here and paying taxes for a long period of time. This particular case related to a grant relating to funeral expenses and I am pleased to report that the matter has since been resolved.

With that background in place, I would say that it stands to reason that in the case referred to by the reader, if the person involved was a (non-Maltese) EU citizen and that person established a genuine link with Malta, then s/he would have been equally entitled to protection from eviction upon the expiration of the long-lease (emphyteusis). Of course, however, this right has only been acquired by (non-Maltese) EU citizens since 2004, when Malta joined the Union. So it cannot apply retroactively.

Merry Christmas to the staff and readers of The Times!

Readers wanting to ask questions to be answered in this column can send an e-mail, identifying themselves, to contact@simonbusuttil.eu or through www.simonbusuttil.eu.