In 2004, European Union law became part of Maltese law. According to Article 5 of the European Union Act (Chapter 460 of the Laws of Malta) all Maltese courts and tribunals have to apply EU law “in accordance with the principles laid down by, and any relevant decision of, the Court of Justice of the European [Union] or any court attached thereto”.

This notwithstanding, we have the lowest rate of preliminary references to the Court of Justice of the European Union. This has had a negative impact on the interpretation and application of EU law in Malta. The legal profession has been hampered in its efforts to develop its professional competences insofar as EU law is concerned.

The Charter of Fundamental Rights of the European Union has been legally binding since the entry into force of the Lisbon Treaty on December 1, 2009.  

The first judgment which ruled that the Maltese courts can apply the Charter of Fundamental Rights of the European Union in a human rights action was delivered by Judge Miriam Hayman presiding in the Civil Court with constitutional jurisdiction on February 15, 2019 in the case Cecil Herbert Jones vs Attorney General (Application no. 95/2018).  

In human rights redress proceedings filed in 2018, my client, Mr Jones, invoked, for the first time in Malta, (1) several substantive provisions of the European Convention on Human Rights and (2) certain fundamental rights and principles contained in the Charter of Fundamental Rights of the European Union.

The Attorney General strongly opposed this, contending that in a human rights action only the substantive provisions of the European Convention on Human Rights could be invoked and that Mr Jones was not entitled to invoke the fundamental rights and principles contained in the Charter of Fundamental Rights of the EU.

The direct effect of the Charter can lead to the recognition of rights that are not available in national law

On behalf of my client I referred to a landmark judgment given by the Grand Chamber of the Court of Justice of the European Union on November 6, 2018 in the Joined Cases C-569/16 AND C-570/16 Bauer et al in order to support our position. I contended that national courts are obliged to interpret national measures in conformity with the Charter whenever they come within the scope of EU law.  

In addition to that, I argued that the Charter provisions have a direct effect in the Member States of the Union. This implies that national norms conflicting with the Charter are rendered inapplicable. The direct effect allows individuals to invoke the Charter in proceedings before national courts. 

Above all else, the direct effect of the Charter can lead to the recognition of rights that are not available in national law.

The First Hall of the Civil Court in its constitutional jurisdiction rejected the plea raised by the Attorney General and upheld my client’s contention that the Charter of Fundamental Rights is based on the principle of direct effect and national courts are obliged to interpret national measures in conformity with the Charter whenever they come within the scope of EU law.

Basing itself on the Bauer case referred to by applicant Mr Jones, the Court observed (at page 43 of the judgment):

“The Court is of the opinion that it would be doing a disservice towards the said Charter if it were to uphold the plea raised by the Attorney General and disallow review of the alleged violation by the Maltese State on the ground of a procedural obstacle that is not an established rule. Besides, considering the argument that the Charter now forms part of national law insofar as it is Union law applicable in its member states, it does not follow that its application should be fettered by the rigidity envisaged by the Attorney General.”

No appeal was lodged by the Attorney General.

This Maltese judgment that successfully linked the national legal and judicial systems with the Charter of Fundamental Rights of the European Union provides an important bridge between the EU law and the national scenario.

We should now learn to cross that bridge with confidence.  

Dr Tonio Azzopardi is a European Human Rights practitioner. He has pleaded successfully before the Grand Chamber of the European Court of Human Rights in Strasbourg (Micallef vs Malta) which is now a leading case on judges’ independence and impartiality.

He has also pleaded before the Court of Justice of the European Union in Luxembourg (Malta Dental Technologists Association vs Superintendent of Public Health et al).

This is a Times of Malta print opinion piece

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