Judge rules for supremacy of Malta’s Constitution over EU law

For two decades since Malta’s accession to the EU Malta’s courts have always enforced the principle of supremacy of EU law

A judge has refused to enforce a garnishee order against a Maltese gaming company, invoking the supremacy of Malta’s Constitution over EU law in a landmark judgment. 

The decision was handed down by Mr Justice Toni Abela in the First Hall of the Civil Court on 21 July, in the case Michael Christian Felsberger 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. 

Abela’s judgment carries significant weight since it offers Maltese-registered gaming companies protection from judgments delivered in competing jurisdictions but more significantly it opens up a Pandora’s Box on the interpretation of EU laws that may conflict with Maltese laws. 

Earlier this year, the Maltese parliament approved the inclusion of Article 56A to the Gaming Act, which granted a form of “immunity” from legal action that would “conflict with or undermine the legality of” Malta’s gaming services or obligations that arise from it. 

This “immunity” is afforded to all holders of a gaming licence (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 garnishee order but he also commented on the fact that 56A also attempted to regulate the jurisdiction of the courts, a power that is constitutional in nature.  

“The Court shall refuse recognition 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 Malta’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 cases where local law is in conflict with them.] 

“It is true that these legal provisions affirm the supremacy of Union laws. But there is another supremacy which we often forget: that of the Constitution of Malta, which is the highest law in the country and which surely 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 Constitution established the supremacy of the Constitution, stating that any other law which is inconsistent 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, generally accepted principles of international law and Malta’s international and regional obligations in particular those assumed by the treaty of accession to the European Union signed in Athens on the 16 April 2003.” 

In the 20 years that followed, Malta’s courts had accepted and enforced the supremacy of EU law despite Article 6 of the Constitution not being amended. What happens now is anyone’s guess.