Issue link: https://maltatoday.uberflip.com/i/1506448
12 NEWS maltatoday | SUNDAY • 27 AUGUST 2023 MATTHEW VELLA MALTA'S parliament was a House divided in 2003: the ruling Nationalists toasted a referendum victory to take Malta into the EU, while the Opposition Labour was deeply eurosceptic. Back then just a simple major- ity of MPs was needed to make the EU Accession Treaty the law that made Brussels' regulations supreme. But it would have been impossible to secure a two-thirds majority to tend to one jigsaw piece: a constitutional article that makes the island's supreme law impervious to EU law. 20 years later, Malta's creaky Constitution is pitting the island against the supremacy of EU law. And it comes in the form of a decree by a judge in the Superior Courts, to uphold recent and con- troversial amendments to Malta's hallowed gaming laws. The case concerns a request to enforce an Austrian court judg- ment obtained by Michael Chris- tian Felsberger, for a garnishee order on a Maltese gaming com- pany, TSG Interactive. Delivered on 21 July 2023, Mr Justice Toni Abela blocked its enforcement. His decree was based on the amendments to the Gaming Act – controversial in themselves, because they allow the courts to refuse such foreign judgments and give immunity to gaming companies from such le- gal actions. That alone flies in the face of Malta's EU obligation to recognise and enforce the judgments of oth- er EU courts in civil and commer- cial matters – the EU Regulation 1215 of 2012. Malta's amended gaming rules now introduce an 'ouster clause', that prohibits the courts from hearing a particular type of lit- igation. Their declared objec- tive, as presented in the House, are the codification of Malta's "long-standing public policy" to encourage the establishment of gaming businesses here – a pro- tectionist law. So, when the Felsberger case was filed in Malta to enforce the Austrian court decision, the judge decreed as having no authority to hear the case. "It's a landmark decision of enormous constitutional signifi- cance that should draw far more attention than it is doing current- ly," says Jennifer Orlando-Salling, a PhD Fellow at the University of Copenhagen, who says Malta already suffers from lengthy pro- ceedings on commercial litigation. The reason is that, apart from the new rules protecting Malta's multi-million gaming industry, Mr Justice Abela used Article 6 of the Maltese Constitution to up- hold his decree – asserting that the Court's ultimate "loyalty" is towards the Constitution against all other laws "inconsistent" with it, even European laws it would seem. Article 6 states that "if any other law is inconsistent with this Con- stitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void." But so does Malta's European Union Act of 2003 assert the pri- macy of EU law, binding Malta, part of its international obliga- tions, to comply with EU law. But Orlando-Salling says the Constitution's Article 6 is an "ar- guably redundant relic inhabited of its colonial past", a symbolic and outdated assertion of sov- ereignty that is ignored by the Courts. This time however, it was not ignored. Mr Justice Abela has reasoned that without a correct wording that declares Article 6 to be subordinate to the Europe- an Union Act, then the latter re- mains subordinate to the island's supreme law. The constitutional lawyer and former Dean of the University of Malta's Faculty of Laws, Prof. Kevin Aquilina, has argued that it is likely that the parties in the Fels- berger case did not even raise the issue of another Constitutional ar- Legal shield for gaming pits Controversial law that allows court to throw out requests to enforce European court orders against Maltese companies pits Constitution against supremacy of EU law 1. The Maltese Constitution (Art 95,1) establishes Superior Courts whose jurisdiction can be regulated by any such law enacted by the Maltese parliament; 2. The recently amended Gaming Act (Art 56A) introduced an 'ouster clause', that is, a provision enacted by parliament that prohibits the court to have jurisdiction on a particular type of litigation. In this case, no action can be taken against gaming licence-holders if it relates to a lawful, authorised activity, and the Court shall refuse recognition and, or enforcement in Malta of any foreign judgement; 3. However, Malta's Code of Organization and Civil Procedure (Art 825A) states that it is the Regulations of the EU that prevail in the Maltese Courts; 4. In this case, EU regulation 1215/2012 provides for the recognition and enforcement of judgments at EU level, which the COCP affirms as being supreme over Maltese law; 5. Mr Justice Toni Abela ruled in his decree that the Maltese Constitution (Art 6) declares the Constitution to be superior to any other law when it provides that "if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void". 6. The judge also argued that it should have been in Article 6 of the Constitution that a declaration should have been made declaring the Constitution subordinate to European Union Law, back in 2003. So, in this conflict between the Constitution, and the European Union Act, an ordinary law, it is the former that has the upper hand. Why the Felsberger decree has legal heads scratching