Euro Parliament off to court

Last week the European Parliament decided to refer the controversial Frontex guidelines to the European Court of Justice in order to challenge their validity.

The guidelines had caused an uproar in Malta because migrants saved on the high seas during a Frontex mission would have to be taken to the mission's host country rather than to the closest safe port. This means that if Malta hosted a Frontex mission, as it has done over the past years, it would have to host all migrants saved on the Libya-Italy route.

Understandably, Malta declared that it would not participate in Frontex missions under these conditions. This self-exclusion led to the cancellation of the Frontex mission in our area of the Mediterranean for this year.

This turn of events was highly regrettable given that, if anything, as a small country, we always had more need for support from EU agencies such as Frontex than other countries with a vast arsenal of military assets to protect their external borders.

It is for this reason that I have since opposed these guidelines and sought to reject them in the European Parliament.

However, there was another reason to oppose them. This was that the procedure used to propose these guidelines was not the right one.

The European Commission used a procedure known as "comitology", which is similar to delegated legislation enacted through ministerial discretion in Malta rather than through Parliament. As a result of this procedure, the Commission's proposal was never brought to the European Parliament for its discussion and amendments as is normally the case in an ordinary legislative procedure.

We were merely asked to accept or reject the proposal.

Last March, I proposed a motion in the Civil Liberties Committee to reject it. This was carried by a large majority. However, for my motion to be adopted (and the guidelines rejected) it also needed an absolute majority of all members of the European Parliament in plenary. That vote was also taken last March but narrowly fell short of the required majority by just 30 votes.

The result of the plenary vote meant that the guidelines were adopted. But it did not remove the dangerous precedent set by the Commission on a procedural level.

It is for this reason that, back in the Civil Liberties Committee, I proposed that the matter be referred to the European Court of Justice so that the court could rule on the matter.

In essence, I argued that the European Commission was wrong to present the rules in a manner that excluded Parliament from any possibility to amend them, leaving it with the limited choice of just accepting or rejecting them. Instead, the rules had to follow the normal legislative procedure that gives Parliament the full possibility to have its say and to change them if it wished to do so. As a result, I argued, the rules should be declared invalid because the Commission had acted beyond its powers.

My argument had the comfort of the support of the Legal Services of the European Parliament.

Last month, the Civil Liberties Committee unanimously agreed with my proposal to pursue the matter in court. The matter was subsequently referred to the Legal Affairs Committee which is responsible for matters that are referred to court. This committee also endorsed the recommendation unanimously in a vote that was taken last Wednesday.

The rules will continue to be valid until the Court rules on their validity. If it rules that they are invalid, they would need to be replaced. This may take around 18 months. The reference to the European Court of Justice is important for more reasons than one.

In the first place it shows that the European Parliament will not take kindly to being bypassed by the Commission. Our institution is prepared to defend its role and powers even in court. More so in the post-Lisbon scenario.

Secondly, the legal validity of these controversial rules has been put in doubt. This means that those who seek to enforce them - be it Frontex or member states - now know that they are seeking to enforce rules that may well turn out to be invalid. This strengthens the hand of countries, such as Malta, which will not participate in Frontex missions under the rules.

Thirdly, given the chance to have its say, the European Parliament would have changed the rules and made them more fair. There is no question about that.

Finally, this episode shows that Malta's interests can also be represented in and by the European Parliament despite the fact that there are just five of us. Indeed, even an initiative taken by just one member, as in this case, can garner a majority provided that it is pursued with reason and determination.

Ask your MEP on www.simonbusuttil.eu

Dr Busuttil is a Nationalist member of the European Parliament.