The force of reason prevails

Do you recall the Frontex guidelines? They are the rules that lay down that migrants saved at sea during Frontex missions should be taken to the member state hosting the mission rather than to the nearest safe port as set out in international maritime law.

... though we are a small member state, we can still fight for our interests and we can still succeed...- Simon Busuttil

They were adopted in 2010 by the Council of Ministers and led Malta to pull out of Frontex missions as a host state because of their unfair effects on Malta as well as on the migrants who are saved.

At the time, Malta had strongly objected to these rules claiming that they would increase, rather than decrease, the disproportionate burden on it. It claimed that migrants saved closer to Lampedusa would have had to be brought to Malta rather than to the closest port of Lampedusa, which is the logical thing to do since they are closer to Lampedusa and since that is where they wanted to go in the first place.

Yet, the rules were adopted despite Malta’s objection because the island was heavily outvoted in Council.

The guidelines are now back in the limelight for good reason.

Last week, the Advocate General of the European Court of Justice issued an Opinion stating that they must be struck off as invalid.

In order to understand the significance of this ruling, let us turn the clock back by two years.

When they were adopted by Council in 2010, I had objected to the guidelines in the European Parliament. I argued that the rules were adopted by Council without as much as giving the European Parliament the chance to discuss them, let alone amend them. I argued that this was not the right procedure to be followed.

In March 2010, I moved a motion in the European Parliament to have them rejected on the basis that they were adopted using the wrong procedure. It was supported by my parliamentary committee, the Justice and Home Affairs Committee, and it was also carried by a large majority in the plenary of the European Parliament by 339 votes in favour and 253 votes against. However, this majority fell just 30 votes shy of the required absolute majority of 369 votes that was necessary to reject the rules.

As a result, the rules were not struck down.

On this occasion, the European Socialists were the only political group to oppose my motion to have them rejected. Labour MEPs voted with us but failed to convince their own colleagues. All we needed were another 30 votes.

So much for Joseph Muscat’s fiery rhetoric on fighting for Malta’s interests on immigration. When push came to shove, Dr Muscat’s Labour made absolutely no difference.

At this point, I could have resigned myself to these rules or I could have pursued in challenging them. I chose the second option because I believe that the force of reason always prevails.

I argued that even if they were not rejected, the guidelines could be challenged in Court because they were adopted using the wrong procedure in a manner that excluded Parliament from the decision-making process.

This line of reasoning was backed by the Parliament’s Legal Service and my Committee supported my request to take the matter to Court. Indeed, Parliament instituted legal proceedings in summer 2010. Two years down the line, last week, the European Court’s Advocate General upheld my arguments stating, in an Opinion, that the guidelines should be annulled.

The Advocate General noted that Parliament’s application to contest them was admissible and that, due to the nature of the rules, the procedure that was used was not correct. As a result, he called for the guidelines to be annulled. This was exactly what I had been calling for from the very beginning.

The Advocate General’s Opinion is not binding on the Court. But it is usually followed by the Court, which is now expected to give its final ruling in the coming weeks.

This Opinion is a lesson for us on at least two scores.

Firstly, it proves that what we have been saying was right all along. And if it is upheld, it will pave the way for new rules to be adopted, which are fairer and which will enable Malta to re-engage with Frontex missions if it chooses to do so. Given the chance, I am sure that the European Parliament will insist on fairer rules.

But, more importantly, it is a lesson in how to do politics in the European forum. This episode shows us that even though we are a small member state, we can still fight for our interests and we can still succeed if we do it in the right way.

Not through threats, antagonism, veto-wielding or shady alliances but through sheer determination, reasonable arguments and the art of convincing others that you are right.

If the European Court pronounces itself on the same lines as the Advocate General in the coming weeks, then the victory for Malta will be sealed.

simon.busuttil@europarl.europa.eu

Dr Busuttil is a Nationalist member of the European Parliament.