Issue link: https://maltatoday.uberflip.com/i/1506448
13 NEWS maltatoday | SUNDAY • 27 AUGUST 2023 ticle, the one that allows the Mal- tese parliament to enact laws only if they are in accordance with the EU Accession Treaty and in full respect of human rights (Art. 65). "Once it was not raised, it would have been unfair were the court to raise it itself and decide thereup- on without allowing the parties to at least make submissions there- upon," Prof. Aquilina has said. This has created a Catch-22 sit- uation: while MPs are obliged to only enact laws that are in con- formity with EU law, this obliga- tion ceases if the provisions of the EU law – such as the cross-border enforcement of court decisions in matters of gaming – contravenes the power of MPs to enact laws on the way the Superior Courts are regulated. "The solution clearly lies in the guidance given by the Civil Court, that is, an amendment needs to be made to Article 6 of the Con- stitution to the effect that until such period as Malta continues to be a member of the European Union, it is EU Law that should prevail over the provisions of the Constitution," Prof. Aquilina said of Mr Justice Abela's decree. This amendment would have been impossible back in 2003, requiring a two-thirds majority vote in the House of Represent- atives when Labour at the time was ideologically opposed to EU accession. Prof. Aquilina says that with Labour now a pro-EU party, there is no obstacle to amend the Constitution. "However, if the Constitution is so amended, the protection- ist measure of Article 56A of the Gaming Act would need revisit- ing as well. But this will take quite some time to materialise until the Court of Justice of the European Union pronounces itself on the matter and Malta comes along to change the Constitution," he adds. Orlando-Salling says the Abela decree should sound alarm bells, because similar decrees could essentially weaponise the Con- stitution against Malta's EU ob- ligations to enforce cross-border court decisions. "In continuing to lack the fun- damental constitutional reform needed, these remnants of colo- nial inheritance will continue to overwhelmingly empower the executive and will only lead to a recycling of the same problems already faced," she says. In this case, the Court decree is being used to enforce the govern- ment's protections of the gam- ing industry while ensuring their competitiveness. "It has more to say about the power, and hold, of the gam- ing industry domestically than a change in the relationship be- tween Malta and the EU," Orlan- do-Salling surmises. "It seems that short-sighted pragmatism and realism will be seen to have seemingly won the day here rather than an activist anti-EU sentiment. And, though precedents are not part of Mal- tese law though they are not with- out weight. What if this happens again? It's bound to, given the lack of constitutional reform." pits Malta against the EU MATTHEW AGIUS Senior Court Reporter THE decision was handed down by Mr Justice Toni Abela in the First Hall of the Civil Court, in the case Michael Christian Fels- berger et vs TSG Interactive Gaming Europe Ltd. The plaintiffs had obtained a favourable judgment in the Austrian courts against the gaming company and sought to enforce it in Malta. a feat now blocked by the Maltese courts. Earlier this year, the Maltese parliament approved the inclu- sion of Article 56A to the Gam- ing Act, which granted a form of "immunity" from legal action that would "conflict with or un- dermine the legality of" Malta's gaming services or obligations that arise from it. This "immunity" is afforded to all holders of a gaming li- cence (i.e. gaming companies), the current or former officers of such a company and "key persons of a licence holder for matters relating to the provision of a gaming service," as well as players receiving that service. The judge used the provisions of this article to reject the gar- nishee order, but he also com- mented on the fact that Article 56A also attempted to regulate the jurisdiction of the courts, a power that is constitutional in nature. "The Court shall refuse recog- nition and, or enforcement in Malta of any foreign judgment and, or decision given" in the cases described above, reads subsection (b) of that article. The judge, however, ruled that the Constitution remained Mal- ta's supreme law. "The court is aware of both the regulation and those parts of the Code of Organisation and Civil Procedure, particularly Article 825A [which states that EU regulations will apply in cas- es where local law is in conflict with them.] "It is true that these legal pro- visions affirm the supremacy of Union laws. But there is another supremacy which we often for- get: that of the Constitution of Malta, which is the highest law in the country, and which sure- ly must not be considered as an ordinary law," Mr Justice Abela wrote. The decision is likely to have a ripple effect reaching far beyond Malta's gambling laws, because of a dichotomy introduced into the Constitution in 2003. Since 1974, Article 6 of the Constitu- tion established the supremacy of the Constitution, stating that any other law which is incon- sistent with it is void. But Article 65 of the same Constitution, introduced in 2003, after Malta's accession to the EU, states that "Parliament may make laws for the peace, order and good government of Malta in conformity with full respect for human rights, gen- erally accepted principles of international law and Malta's international and regional ob- ligations in particular those as- sumed by the treaty of accession to the European Union signed in Athens on the 16 April 2003." Judge Toni Abela The Abela decree explained Jennifer Orlando-Salling, a PhD Fellow at the University of Copenhagen Prof. Kevin Aquilina, constitutional lawyer