Id-Dritt XXXI

id-dritt Edition XXXI

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id-dritt Edition XXXI

2021 Published by Għaqda Studenti tal-Liġi

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Produced and published by Għaqda Studenti tal-Liġi (GħSL), the University of Malta’s Law Students’ Society.

Correspondence in relation to this publication should be forwarded to: The Publications Officer / Editor-In-Chief, Id-Dritt Room 219, GħSL Office Faculty of Laws University of Malta Msida, Malta or Email us at: publications@għsl.org © Għaqda Studenti tal-Liġi 2021 All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the copyright holder and the publisher, application for which shall be made to the publisher.

Proofreading and editing done by the Editorial Board and the Publications Office. Some articles have been modified for reasons of clarity and/or uniformity.

Opinions expressed in Id-Dritt Volume XXXI do not necessarily represent the views of the Editorial Board, the Publications Office, the Publications Officer, or Għaqda Studenti tal-Liġi.

Printed in Malta by Progress Press Co. Ltd Żona Industrijali, Triq L-Intornjatur, Mrieħel, BKR 3000, Malta Cover and Publication Design by Matthew Charles Zammit ISBN no: 978-9918-9506-1-4

Preface Matthew Charles Zammit President Għaqda Studenti tal-Liġi

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his thirty-first edition of Id-Dritt is another step of continuity for GħSL. Notwithstanding the multiple impositions on all aspects of daily life arising from the Covid-19 pandemic, on both the legal profession, law students, and this organisation as well, the Publications Committee within the Malta Law Students’ Society has come up trumps once again, with another stupendous addition to this prestigious series of legal publications.

The kaleidoscopic nature of the subject-matter discussed within this edition, mirrors the ever-present nature of law, directly or indirectly, in almost all aspects of our daily life. This year’s Publications Office has once again managed to capture a snapshot of the multiple temporal and socioeconomic factors that a member of the legal profession, both present and future, may face in his daily routine.

As time passes, it becomes even more evident that the prestige of this publication is not a mere marketing trick deployed by this organisation; rather, it i s a generally accepted fact. Further evidence of this belief, is the diligent work by the Open Science Department within the University of Malta Library, which led to the majority of previous editions of Id-Dritt, even those published under a different moniker decades ago, being preserved and made freely accessible for University students and academics alike. This gives credence to, if not ascertains outright, the notion that the legacy of this publication will persevere for years to come.

Notwithstanding GħSL’s renewed impetus during the recent past, to challenge the orthodoxy in a number of legal and socio-economic issues, the statutory structure behind the publication of Id-Dritt ensures that all professionals, notwithstanding their background and beliefs, are able to academically contribute in this publication. No amount of public selfflagellation, by those who are unable to disagree with differing views on hot-potato subjects, or are unable to separate the work done by the other branches of this organisation with the other relevant efforts necessary by the Publications Office, can erase this fact.

The door has remained, and will remain open. GħSL remains consistent in its belief that the publication of Id-Dritt is no longer a mere annual project which the organisation funds and publishes on its own accord. It is a full-on obligation. There is a need to fill the legal publication void which the other members of the legal profession in Malta have failed to fill in a consistent manner for multiple years, one that remains persistent even in the most viii

id-dritt challenging of times. And GħSL remains steadfast in the belief that Id-Dritt, and the Online Law Journal, is the solution to this problem.

Writing this foreword brings with it a source of nostalgia for yours truly.

From a member within various sub-committees of this organisation, I had the immense pleasure of being involved in multiple editions of Id-Dritt: As an Editor and Publications Officer for the 28th Edition, as a designer for the 29th and the 30th Edition, and now as President for this latest edition. Ever since I made my initial steps within the Law Course, and notwithstanding my involvement with other student organisations on campus, the allure and prestige that Id-Dritt carried with it required absolutely no introduction. I still treasure the copy of the 22nd Edition of Id-Dritt which I managed to purchase when I went near the GħSL Stand on Fresher’s Week. in my first ever year at University.

On a concluding note, GħSL would like to thank Chief Justice Emeritus Joseph Azzopardi, and Madame Justice Ramona Frendo, for their statements of encouragement attached in this monograph. Special thanks also go to Danielle, together with the rest of the Editorial Board, who have toiled away for months on end. I assure you, as a former Publications Officer, that there exists no better feeling than to have the product of your hard work published and in your hand. Years will pass by, and this feeling will remain persistent.

To my colleagues within the GħSL Executive Board for the 2020/2021 Academic Term: Valentina, Maya, Diane, Martina, Sarah, Graziella, Kezia, Giuliana, Andrew, Alec, Matthew, Karl, Andrew, Katrina and Danielle. Your help in this publication, directly or indirectly, is greatly appreciated.

To the multiple authors and peer-reviewers: You remain the lifeblood of this publication. We sincerely hope that we made justice to the multiple hours of research, writing and editing that you have so graciously donated, with the ultimate aim of transferring knowledge to the general public.

Lastly: To you, dear reader, as well as to all the students within the Faculty of Laws. You remain our primary motivator, year after year, in publishing this book, and we ask you to continuously approach GħSL for all matters related to student life.

Ad Multos Annos, GħSL!

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Opening Address Danielle Gauci Publications Officer Għaqda Studenti tal-Liġi

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t is with great pleasure to present to you the 31st edition of Id-Dritt, an acclaimed prestigious law journal, published annually by the Malta Law Students’ Society and which has added value to our bookshelves since 1944 with the very first journal being published.

This particular edition, which features a total of seventeen articles, presents a number of very interesting contributions tackling an array of different topics such as History of the Legal Professions, Human Rights Law, Technology Law, Commercial Law, Administrative Law, Employment Law, Competition Law, Sports Law, Public International Law, Civil Procedure, Climate Change Litigation and Development Planning Law. It includes contributions by junior lawyers, some who have only recently graduated, practitioners, academics and previous members of the judiciary as well as a collaborative enterprise between professionals in the legal sector and law students. It is precisely this mix of authors which will continue to keep Id-Dritt’s legacy alive.

The contributions found in Id-Dritt are one of great importance, not only to track the developmentof a legal system which keeps evolving throughout the years, but has also proven to be an illumination to law students for research purposes. In recognising such importance, this legal journal has been published on a yearly basis for quite a few years now and will continue doing so especially considering that it is one which the Għaqda Studenti talLiġi holds very much close to its heart.

Unfortunately, following another year of COVID-19, we are prevented once again from celebrating this legal journal in the way it truly deserves.

However, despite these challenging times, this legal journal has still continued to flourish thanks to the dedicated contributors who not only have well-read input on today’s legal world but who have shared their knowledge in their respective fields. Following the landmark 30th edition of Id-Dritt, this edition will also be published as an eBook in order to make the publication more easily accessible to those interested.

Of course, while last year’s record-breaking thirty-one articles which have been divided into two volumes was not a record we could reach, the Editorial Board has this year favoured quality over quantity.

That being said, the book which you hold in your hand is one of various efforts and behind it, long hours of dedicated hard work which without the xii

id-dritt help of many would have been impossible to bring to fruition. Therefore, I would like to take this opportunity to thank a large number of people: To all the authors who have dedicated their time in order to make this publication possible through their contributions; Thank you for keeping to our tight deadlines and for making this edition a rich one indeed through your quality researched work.

I would also like to express my sincere appreciation to Madame Justice Ramona Frendo for accepting our invitation and for doing us the honour of writing the Forward to this edition. Likewise, I would also like to thank Chief Justice Joseph Azzopardi for his valued contribution at the back-cover of the publication.

To the Editorial Board: Amy, Ben, David, Josela, Lenka, Luca, Mirea and Raphaël; for their never-ending patience, hard work and dedication regardless of academic and other commitments. This publication would have not been finalised in time if it weren’t for you. It has been an absolute pleasure working with each and every one of you and from the bottom of my heart I wish you all the very best in your future endeavours.

To Lenka, Editor-In-Chief of Id-Dritt; Thank you for always being ready to help out in anything needed and for your support in keeping this whole process run smoothly. I would also like to thank David, Editor-In-Chief of the GħSL Online Law Journal, for always being on hand to help out with anything needed for Id-Dritt. Your attention to detail is impeccable! I thank you both for your constant support and for being part of this journey. It’s been a pleasure!

To my direct predecessors, Justine, Matthew Charles, Ariane and Emma; It would have been impossible to finalise this edition without your input and guidance, especially you - Justine and Matthew Charles. Justine, I thank you from the bottom of my heart for believing in me and giving me this opportunity to work on Id-Dritt. Your never ending support and advice is immensely appreciated. Matthew Charles, thank you for taking the time to edit and design this edition and for always being so patient and ready to help with anything needed. I am grateful to have had the opportunity to work with you this year!

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id-dritt To the members of GħSL Executive Board, Alec, the Andrews, Diane, Giuliana, Graziella, Karl, Katrina, Kezia, Martina, Matthew Charles, Matthew, Maya, Sarah, and Valentina; who although have a limited role in the publication of the journal, have supported me throughout this term and offered their help when needed.

To my family and loved ones for your unconditional love, patience and encouragement and my four-legged shadow, who has indeed been a shadow throughout this whole process.

Lastly, I would like to thank you - the readers, for constantly believing in this legal publication. I hope this book will serve as a go-to instrument and even encourage you to contribute in future editions!

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Foreword Ramona Frendo Judge General Court of the European Union

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thank the Editorial Board of Id-Dritt for inviting me to address a few words to its readers. It provides me with a pleasant distraction from the rigours of formalistic drafting imposed upon me in my position as judge at the General Court of the European Union, allowing me the liberty to express myself more informally, and hence, I hope, more vividly than you would expect of what, traditionally, one calls “stuffy old judges”.

I seize this opportunity to address myself directly to those whom I perceive to be the average readers of this publication – Maltese law students.

It is only fair that I start by confessing my bias. For more than 22 years, I exercised the legal profession as a litigator in the Maltese courts. Litigation was my first love, and it will be my last (to plagiarise that popular song from the seventies). Whether as lawyer or as judge, I am passionate about law, and especially about the judicial interpretation and application of law. I hope that some of you, at least, will share that passion.

When I joined the law course, in 1989, the distinction between lawyer and litigator was almost non-existent. You became a lawyer, essentially, to practise civil, commercial, constitutional, or criminal law, with a smattering of fiscal or industrial law, or a combination of the above - always in court.

It is a credit to the Faculty of Laws’ vision that by the time I finished my studies, students were being given an introduction to European Community law, as it was then, despite the fact that accession to the Community (eventually the Union) was still a far-off dream.

Today, there is an ever-growing myriad of specialized laws, and many law students would never dream of stepping inside the law courts because for them, litigation has no attraction. This does not mean that, for these aspiring lawyers, the workings of the judiciary bear no interest, for it is judicial interpretation that brings the dead letter of the law to life.

As the articles featured in this edition prove, law is everywhere around you – from your home to your workplace, from the most beautiful game in the world (football, for the uninitiated) to your online shopping, from the dreariness of the Covid pandemic to concerns about climate change. I salute the contributors for their efforts and their wide-raging interests. xviii

id-dritt Law is not only all-pervasive. It is also alive. It is not a fossil. It changes with the times. New laws are enacted to regulate new situations. Old laws are repealed, like dinosaurs falling into extinction. Others are amended to be brought in line with new developments, thus acquiring a longevity beyond their original purview.

Nothing new there. I recall the late Professor Réné Cremona delivering the very first lecture to a cohort of a hundred-odd eager first year law students, back in 1989. He started by reciting a little rhyme, which apparently was a constant in his first lectures: “Roman law is dead, as dead as it can be, first it killed the Romans, now it’s killing me”, he said in his raspy, rather monotone voice. Only to retort, in his deadpan way, that this was far from the truth, and that the principles developed in Roman Law were still very much alive then, as they are today.

That is one of the beauties of law, and especially of litigation. That what is essentially a set of rules laid down, sometimes centuries before you were born, by people who have long been dead and buried, is constantly infused with life through daily application, and especially through interpretation by the courts.

For indeed, it is not only – perhaps not even primarily - our legislators who keep the law alive. In the day-to-day workings of society, it is the Courts that infuse even the oldest laws with life and relevance. They are tasked with dispensing justice by applying old and new laws alike to the very particular, sometimes peculiar, situations brought before them by citizens and commercial entities, who require solutions to very specific and individual issues.

Laws in dusty volumes (or, more often these days, in online websites) mean nothing in real life - they are worth nothing to the ordinary man - until and unless they are interpreted and applied, initially by lawyers, to real-life situations. And when, despite the valiant efforts of lawyers, disputes arise, the courts work their magic of judicial interpretation, bringing light to obscurity, certainty to doubt.

You get no prizes for guessing, I was a passionate litigator, and I am a fervent fan of the judicial interpretation of the law. Which is why it pains me to see students quite literally obsessed, perhaps in awe, with decades’ old Maltese jurisprudence. xix

id-dritt Jurisprudence develops with time. Failing this, it would stagnate and become as irrelevant to the clients of justice as the dead letter of the law.

Jurisprudence is not static but adaptable, often with uncanny resourcefulness from those who sit on the bench, aided by those who plead before them.

Above all, jurisprudence cannot be, and should not be, a case of “read one, read them all” because no situation is exactly the same as another. In more than two decades as a litigator, not once was I faced with two identical legal problems. This diversity lends beauty to the study of jurisprudence over the years, and leads me to the very core of the message I want to pass on to you.

Making sense of the world today, solving legal conundrums, whether as litigators or otherwise, requires that you look at the jurisprudence, not only from twenty, thirty or even fifty years ago, but from five years ago, last month, last week. Do not discard the more recent material, often painstakingly developed in the solitude of judicial deliberation, with the precious collaboration of those most humble of court officials, litigating lawyers. Recent judgments embody, at least in theory and I hope in practice, the interpretation that is likely to be the more adjourned and pertinent to modern-day issues.

Jurisprudence, especially in Malta where the courts are not bound by precedent, is very much alive. I invite you – indeed I challenge you - to look beyond the locus classicus which your lecturers harped on about, and reach out for more recent judgments, because, quite frankly, it is the more recent judgments which are steeped in today’s realities, whilst having the benefit of hindsight and building on age-old judicial principles. Recent judgments are the ones that have been pored over by members of the bench living in the same world as you and your clients. These contemporary judges are the ones who have the benefit of awareness of today’s reality, and may nuance the “well-established principles” to keep them ever relevant, sometimes, unwittingly or otherwise, gradually changing those very principles which may appear to be cast in stone.

And whilst in the mood to challenge young and energetic Maltese law students, I launch an even bigger challenge. Look beyond our shores. At the xx

id-dritt risk of repeating a platitude, it bears reminding that Malta is not the centre of the world. It is an island, but that should not shackle you with an insular mentality. Open your minds to the jurisprudence that enriches the legal world, with every passing day.

I must have a very good memory because I still remember, again in my first year as a law student, Professor Ian Refalo exhorting us not to think of law in watertight compartments. One area of law can cross-pollinate, as it were, another. That is another of the beauties of law. In most Member States of the Union, EU jurisprudence inspires lawyers and pollinates national Court judgements. Much less so, I regret to say, in Malta.

It is very worrying, leafing through the contributions that make up this publication, to see that, except in subject-matter that is traditionally and intrinsically associated with EU law, particularly competition law, the Maltese lawyer’s study and analysis of juridical situations remains firmly imprisoned within the confines of our national frontiers, small as they are.

Malta joined the European Union in 2004, which means that the legal order of the Union is also the legal order of our island state. Yet, in the interim, Maltese courts have only resorted to the preliminary ruling procedure in a handful of cases, in a period exceeding fifteen years of membership. The General Court gave judgment in the first case ever to be filed before it in the Maltese language, only last year. Cases arising from Malta are few and far between; cases filed by Maltese individuals even more rare.

I dare say that, for the most part, Maltese lawyers and Maltese courts have remained purely and staunchly national, impervious to external influence, perhaps distrusting of outside scrutiny or guidance, despite the fact that EU law continues to expand and determine the content of national legislation in ever more diverse areas.

Perhaps it is not insularity that holds us back in this way. Perhaps it is fear, a sort of national inferiority complex arising from the fact of being the smallest Member State of the Union. I tell you: that should not be so.

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id-dritt There is no cause for intellectual inferiority. The Maltese lawyer probably works harder than most, is exposed to a far greater diversity of situations than most European lawyers, and as such has the advantage not only of being more adaptable, but also of being faster at grasping and mastering new situations, and new fields of law. The Maltese lawyer has no concept of “the high entry cost” to study a new area of law, because he or she must do so, on a daily basis, to flourish professionally. Being small makes us intellectually agile and even wily.

So I exhort you, kindly, to venture into the jurisprudence of the Union in your daily professional lives. I encourage you to consider the possibility of litigating in front of the General Court of the European Union, to demand preliminary rulings in front of the European Court of Justice where there is doubt about Maltese law that is influenced by EU Law. Coming to Luxembourg to plead may be daunting, but you may rest assured that in a multinational court, you will always find respect for your efforts, and judges eager to engage in intellectual debate.

Open your minds to the juridical world beyond the Maltese shores, own the fact that you are not only Maltese lawyers, but European lawyers too. I promise it will be an enriching experience.

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Editorial Board Id-Dritt XXXI

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Danielle Gauci Publications Officer

Lenka Portelli Editor-In-Chief

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Raphael Butigieg Amy Catania David Chetcuti Dimech Luca Micallef Mirea Mormina Lenka Portelli Benjamin Thomas Scerri Josela Psaila Spiteri Editors

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Executive Board Għaqda Studenti tal-Liġi 2020/2021

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Matthew Charles Zammit President

Valentina Cassar

Vice-President

Maya Spiteri Dalli Secretary General

Diane Cutajar Financial Officer

Martina Cassar

Public Relations Officer

Sarah Mifsud

Director of Committees

Graziella Schembri Academic Officer

Kezia Mallia Mercieca Events Officerr

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Giuliana Magro Conti

Exchanges Officerr

Andrew Formosa External Relations Officer

Karl Micallef

International Officer

Matthew Mamo Leisure Officer

Alec Sladden Marketing Officer

Andrew Sciberras

Policy Officer

Danielle Gauci Publications Officer

Katrina Borg Ferrando Resources Officer

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Contents

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Administrative Law 3

Tonio Borg Judicial Review of Administrative Actions: Developments and Contraditions

Civil Procedure 21

Frances Camilleri-Cassar Atti kawtelatori: to what extent are precautionary warrants adequate in safeguarding a person’s rights to secure a claim before the Civil Court?

Climate Change Litigation 33

Daniele Gafa, John Caruana The new concept of climate change liability and the use of human rights challenges in climate change litigation.

Company Law 55

Donald Vella, Nicola Jaccarini The Company Recovery Procedure: an analysis of its past, present and future

Competition Law 83

Gayle Kimberley, Nicole Sciberras Debono, Nina Fauser, JP Fabri, Stephanie Fabri Does Competition Law fit the Digital bill? xxxiv

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Commercial Law 115

Paul Edgar Micallef The Case for a ‘Super’ Market Authority In Malta

Constitutional and Administrative Procedure 139

Frances Camilleri-Cassar Procedural obstacles (A) in a Human Rights action under Article 46 of the Constitution of Malta; (B) in a Judicial Review under Article 469A of the Code of Organisation and Civil Procedure

Development and Planning Legislation 157

Robert Musumeci, Rebekah Cilia Is planning permission required for expressing one’s feelings?

Employment Law 171

Julienne Bencini Expect the unexpected: understanding health and safety risks post the Covid pandemic.

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Natalino Caruana De Brincat Employment Law - The (in)Definite Dilemma

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History of the Legal Professions 193

Giovanni Bonello Lawyers and Lawyering in Malta before 1600

Human Rights Law 223 Giovanni Bonello Was the European Convention on Human Rights Enforceable in Maltese Courts since 1967?

233 Tonio Borg The Exhaustion Rule, exhausted

253 Kathleen Vella The European Convention on Human Rights in the time of Covid-19: To invoke or not to invoke Article 15?

Public International Law 277

Frances Camilleri-Cassar What is an understanding of the concept of ‘jurisdiction’ in public international law? Analysis of two jurisdictional bases

Sports Law 291

Clive Gerada, Daniel Geey Financial Fair Play (FFP) Regulations – dead in the water?

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Techonlogy Law 323

Kevin Aquilina Technology Law’s Link to Constitutional Law: A Public Law Perspective

In Memoriam 349

Andrew Sciberras obo The GħSL Team Professor J.J. Cremona - An Obituary

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Administrative Law

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Tonio Borg Judicial Review of Administrative Action: Developments and Contradictions.

Tonio Borg LL.D., Ph.D., K.O.M. is a former European Commissioner and former Deputy Prime Minister and Minister of Foreign Affairs of Malta. He is a resident senior lecturer in public law at the University of Malta.

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1. Interception

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ecent developments in the area of Judicial Review under Administrative Law have occurred, which are of importance for an understanding of the subject. I shall deal with these not in a chronological order, but in order of importance. I shall also examine some contradictions, not necessarily recent, which plague the jurisprudence of the Maltese Courts on this subject.

The most important development in the area of Administrative Law in the recent past, has been the debunking of the norm contained in Article 460 of Chapter 12, introduced in 1981, which stated that a plaintiff instituting a case against the Government has to present, under pain of nullity, a judicial act informing the Government of his claims, at least ten days prior to instituting action. This, of course, applied also to any judicial review against the Government under Administrative Law. This norm received two blows in succession. On 9 July 2019, the First Hall of the Civil Court in the Paul Gauci case1 ruled that according to Article 460, this norm did not apply to judicial review cases under Article 469A of Chapter 12, because a special time limit to present an action, namely the six-month forfeiture period of six months, applied; furthermore, Article 460 provided that ‘where in accordance with the provisions of any law a particular procedure including a time limit or other term is to be observed’, the norm did not apply.

Probably, the legislator had in mind a time period in a law which required a similar judicial act to be presented prior to instituting action. However, the Court ruled that this exception also applied to judicial review cases under Article 469A, which required a time period within which an action had to be instituted.

The second and more fatal blow came a few months later. On 15 November 2019, the First Hall ruled in the Mark Formosa case2 that the requirement contained in Article 460 was unconstitutional. It based its erudite judgment on two main arguments: 1 573/18 Paul Gauci pr et ne vs Superintendent Cultural Heritage, First Hall (Civil Court) 9 July 2019 (Mr. Justice G. Mercieca).

2 8/19 Mark Formosa vs Permanent Secretary Gozo Ministry et, First Hall (Civil Court) 15 November 2019 (Madame Justice M. Hayman).

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Administrative Law a) that the norm breached the equality of arms principle inherent in the right to fair hearing, since it only required the individual to follow a certain procedure to file an action against the Government, and not vice versa; and (b) the sanction for non-observance, namely the nullity of the action was disproportionate.

The Constitutional Court on 20 July 20203 confirmed this judgment.

However, it limited itself only to declaring the norm as being unconstitutional because it was disproportionate, and not on the basis of the aforementioned Equality of Arms principle. A sanction of automatic nullity for not filing a judicial letter ten days prior to the action, was deemed as too draconian.

These judgments lead to the logical conclusion that this pernicious and oppressive norm is dead and buried.

Or is it?

In spite of the fact that the Court in July 2019 (Paul Gauci) had declared that such a norm did not apply to Article 469A actions, in at least two instances after such judgment, the court applied just the same Article 460 and declared null a judicial review action. This occurred in the case of Cardinali4 and in the case of Yorgen Fenech5. Besides, both judgments were delivered applying Article 460, which had been declared to be unconstitutional on 15 November 2019 by the Court of First Instance in Mark Formosa.

This development can be described as a step backwards in matters relating to judicial review. The First Hall of the Civil Court had stated on several occasions, that its powers of review extended to any act which in any way affects the citizen, both if it is in the nature of a binding decision, as well as if it takes the form of a report on which a public authority then bases its final decision, so long as the report constituted the motivation on which the public authority eventually based its decision.

3 8/19 Mark Formosa vs Permanent Secretary Gozo Ministry et, Constitutional Court 20 July 2020.

4 563/19 Dott. Michele Cardinali noe vs Commissioner of Police et, First Hall (Civil Court) 30 January 2020 (Mr. Justice J. Zammit Mckeon).

5 1142/19 Yorgen Fenech vs Attorney General et, First Hall (Civil Court) 15 July 2020 (Mr. Justice F. Depasquale).

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id-dritt In the Taliana case6, a report was presented by the Police Board to the Commissioner of Police, who then instituted disciplinary proceedings against a police officer on the basis of such report. The report was deemed to be a reviewable and administrative act; and the Court decided that such report had been vitiated by a number of irregularities, including undue interference by a Ministry official in the proceedings. On appeal, the Court of Appeal on 20 July 2020 confirmed the judgment but only on one point; namely, that the Board had been irregularly composed and appointed by the responsible Minister. Other considerations relating to the conduct of the proceedings before, and irregularities committed by the Board, were ignored on the basis that the Report was a determining act: the Board only recommended action, and had no executive powers.

Another development relates to the action for damages under Article 469A. Under the latter Article, an action for damages is possible, alongside a judicial review action. However, this action is severely limited for damages, and will only be allowed either if the administrative act was performed in bad faith, or else if the action was unreasonable. Besides, if the final decision of the public authority would have reasonably been expected to be the same, even if there had been no irregularities, no action lies for damages.

The Courts have, for years, ruled that if the premises and nature of the application were such that an administrative act was being challenged as ultra vires, or vitiated under any one of the grounds listed in Article 469A, then even if plaintiff pleaded that his was not a judicial review action but merely an action under the ordinary civil law of tort, the provisions of Article 469A relating to the restrictive norms on damages applied. In a recent case however, namely that of Josef Borg7, the Court of Appeal stated that the civil law of tort applies as well to such cases, subject to the restrictive norms of bad faith and unreasonableness mentioned in Article 469A (5). Therefore, when it came to determining the amount or nature of damages, the rules of damnum emergens and lucrum cessans, as well as the prohibition of moral damages, applied.

As to this latter point, it should be noted that in the Mario Gerada case8, the 6 177/2014 Elton Taliana vs Minister of Home Affairs, First Hall (Civil Court) 7 November 2017 (Mr. Justice JR Micallef).

7 682/12 Josef Borg vs Malta Authority for Transport, Court of Appeal 13 November 2017.

8 993/08 Mario Gerada vs Prime Minister, First Hall (Civil Court) 14 November 2012 (Mr. Justice S. Meli).

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Administrative Law Court did award €10,000 as ‘existential damages’ where an act of dismissal of a nursing officer was deemed to be ultra vires. The Court of Appeal, on 28 April 2017, while confirming the judgment on the merits, simply revoked the award of the moral damages without giving any reasons. This bewildering decision brings up once again the question as to why our Courts continue applying civil law notions to public law actions.

In recent times, the question of ‘juridical interest’ has arisen in two ‘environmental’ cases. In the Ramblers case No 19, a challenge by an environmental NGO to an outside development zone permit was rejected by the Court of First Instance, for lack of juridical actual and personal interest.

The Court of Appeal, applying an EU Directive which allowed environmental NGOs’ to institute legal action if it had objected to the permit in the first place, reversed the judgment. This is truly a case of an exception proving the rule, for had it not been for this EU norm, the juridical interest rule with all its force would have been applied.

In Ramblers case No. 210, where the same environmental nongovernmental organization this time challenged the granting of lease of vast tracts of public land at Miżieb to a hunters and trappers association, the Administrative Review Tribunal, which is entrusted to hear appeals from decisions of the Lands Authority - the public corporation empowered with the management of government land - ruled that the plaintiff association was not an ‘aggrieved‘ person and therefore did not have legal standing or juridical interest in the case.

One interesting recent case relating to damages was that delivered by the Court of Appeal in Mizzi Antiques11, which applied the rule that no damages are awarded ‘where the thing requested by the plaintiff could have lawfully and reasonably been refused under any other power’. In that case, a request by plaintiff company to be awarded a factory by Malta Enterprise was refused, in breach of the rules of natural justice. However, since the decision would have been the same even if such rules had been observed, for it had 9 228/10 Ramblers Association of Malta vs Malta Environment and Planning Authority, Court of Appeal 27 May 2016.

10 92/2020 Ramblers Association of Malta vs L-Awtorita’ tal-Artijiet, Administrative Review Tribunal 21 January 2021 (Magistrate C. Galea).

11 810/2004 Mizzi Antiques Ltd. vs Chairman Malta Enterprise et, Court of Appeal 31 January 2019.

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id-dritt never been the policy of the public authority to grant factory premises for the project submitted by the company, no damages were awarded.

Another interesting development is the Eros Trading Ltd case12. In that case, decided by the First Hall on 9 January 2020, the plaintiff company had complained of excessive delays in the valuation by customs authorities of merchandise coming from China, and entering the EU through Malta. OLAF, the European Anti-Fraud Office, had alerted the Maltese customs authorities, and those of other members states, to certain suspect transactions and importations with the scope of evading proper full customs duties. The Court ruled that, though the inspections and precautions which created some inconvenience were justified, the excessive delays in the valuations by Customs of the imported merchandise amounted to a breach of the rules of natural justice. Never before in the context of an Administrative Law action had excessive delays in taking an administrative decision been considered to be a breach of the rules of natural justice.

The Court of Appeal has reiterated in John Cutajar13, that if a mode of contestation before a court or tribunal for redress arising from the administrative act exists under any law, then recourse cannot be had to Article 469A. Consequently, this is not properly speaking an exhaustion of other remedies rule, as in the case of human rights cases, but an exclusion of an application of Article 469A where a court or tribunal under any other law offers and adequate remedy. Therefore, since a planning permit decision by the planning authority is subject to appeal under the planning legislation before an Appeals Tribunal, one could not then seek redress under Article 469A. In another interesting case, that of Lt. Col. Mallia14, the provision found in the Armed Forces Act 1970, allowing a member of AFM to seek redress before the President of the Republic if aggrieved by a decision taken by his superiors, was not considered to be a redress before a court or tribunal, and therefore did not prevent the aggrieved officer from seeking redress under Article 469A.

12 603/2015 Eros Trading Ltd vs Director General Customs, First Hall (Civil Court) 9 January 2020 (Mr Justice G. Mercieca).

13 517/12 John Cutajar et vs Alfred Falzon Sant Manduca, Court of Appeal 27 March 2020.

14 187/16 Lt. Col. Andrew Mallia vs Commander Armed Forces of Malta, Court of Appeal 30 January 2018.

8

Administrative Law One final interesting development is the Khotulev case15, relating to a refusal of a citizenship application by a Russian citizen by the Identity Malta Agency under the IIP programme. Under the Malta Citizenship Act of Chapter 188, the Minister responsible for Citizenship is not obliged to give reasons for the refusal of any citizenship application. Not only that, but the decision of the Minister is not subject to any appeal or review by any court of law. In fact, the Act provides that: The Minister shall not be required to assign any reason for the grant or refusal of any application under this Act and the decision of the Minister on any such application shall not be subject to appeal to or review in any court.

Now as to the exclusion of judicial review in general, this provision has been ignored in a number of cases. I only cite the case of Alyassin16, delivered by the First Hall, Civil Court on 20 February 2020. Here the Court entered into the question whether a refusal for citizenship by the Minister was reasonable or not, and came to the conclusion that it was reasonable. No one raised the question, not even ex officio, that the Minister’s decision was not reviewable.

Similarly, in the Grixti Soler case17, in spite of the provisions of Article 115 of the Constitution which excludes court review of actions of the Public Service Commission, the Court still reviewed a PSC decision, and decided that the PSC had not acted unreasonably. The same occurred regarding judicial review at an Administrative Law level on the basis of Article 469A18.

15 834/16 Dr. Alexander Schenbri noe vs Identity Malta Agency et, First Hall (Civil Court) 20 October 2020 (Mr. Justice G. Mercieca).

16 148/10 Alyassin Abdel Hamid vs Commissioner of Police et, First Hall (Civil Court) 20 February 2020 (Mr Justice JR Micallef).

17 736/14 Dr. D. Grixti Soler et vs Public Service Commission et, Court of Appeal 12 February 2016.

18 784/19 Terry Muscat vs Public Service Commission, First Hall (Civil Court) 14 January 2021

(Mr. Justice M. Chetcuti); 1179/2003/1 Charles Mattocks vs Dr. Anthony Gruppetta noe et, Court of Appeal 27 June 2008; 1626/2001/1 Ivan Portelli vs Prime Minister, Court of Appeal 6 September 2010; 76/2010/1 Grace Sacco vs Prime Minister et, Constitutional Court 17 September 2013; In Mattocks, the Court of Appeal made it abundantly clear that, in spite of Article 155 of the Constitution, it would review the PSC actions on the basis of Article 469A, particularly as regards the rules of natural justice: ’Din il-Qorti żżid li anke jekk jiġi allegat, fuq livell amministrattiv, li l-PSC aġixxiet bi ksur tal-prinċipji tal-ġustizzja naturali jew aġixxiet ultra vires il-poteri tagħha, il-Qrati ordinarji jistgħu u għandhom jintervjenu. Il-prinċipji tal-ġustizzja naturali jridu dejjem u skrupolozament jiġu osservati minn kull Qorti, Tribunal, Bord jew Kummissjoni maħtura biex tieħu deċiżjoni fir-rigward ta’ individwu, u ebda awtorita` mogħnija b’dan il-poter ma tista’ twarrab dawn il-prinċipji b’impunita` (ara, per eżempju, il-każijiet ‘Zammit vs Falzon’, deciża minn din il-Qorti (Sede Inferjuri)

9

id-dritt Was this a lapsus on the part of the Court or defendant? Or was it an application of the rule that ouster clauses, as in the 1969 decision of the House of Lords in Ansiminic19, will only be applied for errors within jurisdiction, and not to decisions not grounded in law?

The Court dealt with this ouster clause only in relation to the express provision that it excluded the duty to give reasons. Did this ouster clause prevail over the norm of natural justice embedded in Article 469A as to the observance of the rules of natural justice in performing an administrative act? The refusal was an administrative act and Identity Malta is a public authority after all?

The Court ruled thusly: This Court understands and even sympathises with plaintiff, however, the scales of justice are not tilted in his favour. In cases like these, there is an impelling reason why the Minister was given the express power by the legislator not to give reasons for the refusal to granting of citizenship; and, up to certain point, the right to be given reasons following a refusal of a passport application, is sacrificed. The ancient maxim salus populi suprema lex; Even if the granting of reasons may be considered as a sine qua non so that the administration does not act arbitrarily, there is little risk that this occurs in cases like these; since the State of Malta has every interest to accept applications for Maltese passports owing to the substantial income entering the public coffers when these are accepted; which means that it would not be disposed towards rejecting such applications unnecessarily.20 fl-10 ta’ Marzu, 2003 u ‘Mangion vs Cilia Pisani noe’, deciża mill-Prim Awla tal-Qorti Ċivili fl-20 ta’ Mejju, 2004). L-istess jista’ jingħad f’każ ta’ allegazzjoni ta’ qerq.‘

19 Anisminic Ltd vs Foreign Compensation Commission [1969] 2 AC 147 (HL).

20 Illi l-Qorti tifhem u anke tissimpatizza mal-attur, iżda l-miżien huwa mxaqleb kontrih: F’każijiet bħal dawn, hemm raġuni mpellenti l-għala l-Ministru ingħata s-setgħa espressa mil-leġislatur biex ma jagħtix raġunijiet, u jiġi sa ċertu punt issagrifikat il-jedd li jingħata raġuni għar-rifjut tal-għoti tal-passaport: il-massima antika, salus populi suprema lex. Anke jekk l-għoti ta’ raġuni tista’ wkoll titqies bħala sine qua non biex l-amministrazzjoni ma taġixxix b’mod arbitrarju, ftit li xejn hemm periklu li jsir hekk f’każijiet bħal dawn billi l-Istat Malti għandu kull interess li jaċċetta applikazzjonijiet għal passaport minħabba d-dħul sostanzjali fil-kaxxa ta’ Malta meta dawn jiġu aċċettati. Li jfisser li m’huwiex sejjer ikun propens li jiċħadhom kif ġieb u laħaq.

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Administrative Law The Court, however, did not only give a strict interpretation to the ouster clause, as to the giving of reasons, but also invoked the act of state doctrine from English common law. It accepted that acts of state are in any case not reviewable, but decided to reject the plaintiff’s demands on the basis of an express and clear provision of the law which excluded review on the grounds of not giving reasons. The Court however, quoting De Smith, acknowledged that under English common law: an express statutory provision excluding a duty to give reasons has been held not to exclude a duty to disclose the substance of the case so that an applicant for citizenship could make representations. – R. v Secretary of State for the Home Department Ex p. Fayed (1998) 1 W.L.R. 763;21 However, the Court was not prepared to give such a restrictive interpretation of the law. It stated: Were it to do so, it would be undermining the purpose of the law itself namely that of protecting the State of Malta from awarding citizenship to foreigners who are not acceptable for some reason or another. Besides, the fact that this would cause serios danger to Malta in the international field especially in the European Union if someone were to bypass the sifting process in this respect.22

2. Enforcement Notices and Audi Alteram Partem In the Liquigas case23, it transpired that the Office of Fair Competition had issued an enforcement notice against Liquigas - a gas manufacturing company - which allegedly had imposed a condition to gas distributors to sell only products produced by it. The Court of Appeal, agreed with decision of the Appeals Tribunal for Consumer and Competition Affairs, that the Director General Competition had failed to give information as to the allegations 21 Harry Woolf and others, De Smith’s Judicial Review of Administrative Action (7th edn, Sweet & Maxwell 2007) 473-04.

22 F’dan il-każ, jekk tagħmel hekk, tkun qiegħdha timmina l-iskop tal-liġi nnifisha, li hi li tħares lill-Istat ta’ Malta milli jagħmel ċittadini aljeni li ma jkunux aċċettabbli għal xi raġuni jew oħra. Dan anke minħabba l-ħsara kbira li ssir lil Malta internazzjonalment u speċjalment fl-Unjoni Ewropeja jekk mill-passatur jgħaddi min m’għandux jgħaddi.

23 1/2011 Liquigas (Malta) Ltd vs Office for Competition, Court of Appeal 20 October 2020.

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id-dritt against the company before issuing the Order. The Director defended his position, by saying that the law at that time did not allow access to the relevant file by the aggrieved person, and that in any case an urgent decision was required, and one could not follow the normal procedure. The Court of Appeal stated that: Whether there is a statutory right of access to the relevant file, it is still necessary that anyone who is to answer to a complaint – as Liquigas had to do - has to know with precision for what it has to answer. In the present case Liquigas not only was not given a copy of the specific complaints against it; but the Office for Competition held meetings with the Maltese Chamber of Small and Mediumsized Enterprises (GRTU) which had presented the complaint, in the absence of representatives of Liquigas; it also held other meetings with the Malta Resources Authority. in the absence of representatives of Liquigas to collect relevant information regarding the case. Liquigas was not given the opportunity to reply to what was said in those meetings once they were held in its absence. This failure was certainly of prejudice to the right of Liquigas to prepare and present its defence and on its own is enough to justify the decision of the Tribunal to revoke the decision taken on 24 December 2010.24 Similarly, in Environment Landscapes25, the Court once again reiterated that the audi alteram partem rule needed to be observed, even if it was not expressly included in the law granting a discretion to a public authority.

In that case, the Court ruled that the Data Protection Commissioner, even if the express text of the law did not so oblige him, had the duty to notify 24 ‘Hemmx jew le dritt statutorju għal aċċess għall-file, xorta jibqa’ meħtieġ illi min ikollu jwieġeb għal ilment bħal ma kellha twieġeb Liquigas fil-każ tallum għandu jkun jaf bi preċiżjoni għal xiex għandu jwieġeb. Fil-każ tal-lum mhux biss Liquigas ma ngħatatx kopja tal ilmenti speċifiċi mressqa kontrieha iżda wkoll l-Uffiċċju żamm laqgħat mal-Kamra Maltija tan-Negozji Żgħar u Medji (GRTU), il-parti li ressqet l-ilment, fl-assenza ta’ rappreżentanti ta’ Liquigas u żamm ukoll laqgħa mal-Awtorità ta’ Malta dwar ir-Riżorsi fl-assenza ta’ rappreżentanti ta’ Liquigas biex jiġbor tagħrif relevanti għall-każ. Liquigas ma ngħatatx fakoltà twieġeb għal dak li ntqal waqt dawk il-laqgħat, Dan in-nuqqas ċertament kien ta’ preġudizzju għad-dritt ta’ Liquigas li tħejji u tressaq iddifiża tagħha, u huwa waħdu biżżejjed biex jiġġustifika d-deċiżjoni tat-Tribunal li jħassar id-deċiżjoni tal-24 ta’ Diċembru 2010, u biex għalhekk jiġi miċħud dan l-appell.’

25 764/16 Environmental Landscapes Consortium Ltd. vs Data and Information Commissioner, First Hall (Civil Court), 14 July 2020 (Mr Justice G. Mercieca).

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Administrative Law plaintiff regarding the complaint in question and give it every adequate opportunity to present its objections. However, such representations need not be necessarily made orally, but allowing written observations is enough to satisfy the audi alteram partem rule.26

3. Contradictions A blaring contradiction which has created confusion in our jurisprudence is that relating to ‘internal measures of organization and administration within a public authority,’ found in the definition of ‘administrative act.’ Such measures are not reviewable, since they do not constitute an administrative act, i.e. one of the indispensable requirements for judicial review to succeed under Article 469A. There are judgments to the effect that such internal measures are not subject to review, even if there exist reasons to challenge the measures under of the grounds of review under Article 469A27. In another case28 however, the Court stated that when it is alleged that an internal measure had breached one of the grounds mentioned in Article 469A, such measure automatically transforms itself in a reviewable administrative act; creating in my view a tautology or petitio principi. For if an internal measure is not an administrative act and, therefore, is not subject to judicial review, how can it become a reviewable administrative act if it is challenged on one of the grounds of review to which it is not subject as an unreviewable act?

Another contradiction found in our jurisprudence is the question of whether the plea relating to the six-month forfeiture period, can be raised at any stage of the proceedings, or else at the very beginning of the lawsuit in limine litis and if not so raised, it is presumed that defendant waived the right to raise such a plea.

26 784/19 Terry Muscat vs Public Service Commission, First Hall (Civil Court) 14 January 2021 (Mr. Justice M. Chetcuti).

27 1908/01 Emmanuel Borda vs Prof. R. Ellul Micallef, First Hall (Civil Court) 30 January 2003 (Mr. Justice J. R. Micallef).

28 446/08 Ivan Consiglio vs Prime Minister et, First Hall (Civil Court) 18 February 2010 (Mr Justice J. R. Micallef).

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id-dritt In Delicata29, it was decided that the plea has to be raised in limine litis, the more so since the period was one of forfeiture and not prescription. The Court also refused to raise the issue ex officio. In the Tanti case30 however, the Court had ruled that the plea of forfeiture could be raised at any stage of the proceedings.

Some judgments relating to the meaning of administrative acts are also contradictory. In one case31, the question of recognition of a lessee in government-owned property was considered to be a reviewable administrative act - even though such matters are usually dealt with by the Civil Court. In another case32, the question whether a tenant should be recognized as the sole lessee of government-owned agricultural land to the exclusion of his siblings, was rightly considered as a civil law matter, and not subject to Article 469A, since a perfectly valid and effective remedy existed under ordinary law. However, in Gaetano Cutajar33 and in Alexander Montebello34, the court again ruled that the challenged decision, namely relating to recognition of tenant in government owned premises, was not only subject to the norms of civil law but amounted also to an administrative act.

Conflicting judgments have also been delivered as to whether the remedy under Article 469A is an adequate remedy, for the purpose of a Court of Constitutional jurisdiction, to decide under the proviso to Article 46(2) of the Constitution, whether to exercise its discretion of declining to exercise its constitutional jurisdiction, since there exist alternative remedies under any law. In a string of cases, the Courts have ruled that where it is evident that recourse could have been made under Article 469A, applicant should not institute a constitutional case under Article 46. In Raymond 29 957/10 Romina Mohnani Delicata vs Commissioner of Land, First Hall (Civil Court) 16 December 2015 (Mr. Justice J. R. Micallef).

30 819/2008 Sylvana Tanti vs Noel Tanti et, First Hall (Civil Court) 9 October 2014 (Mr. Justice J. R. Micallef).

31 877/2008 Karina Fenech vs Housing Authority, First Hall (Civil Court) 12 December 2011 (Mr. Justice J. Zammit McKeon).

32 45/2006 Carmel Cauchi vs Director of Land, First Hall (Civil Court)(Gozo) 27 June 2007 (Magistrate P. Coppini).

33 405/2015 Gaetano Cutajar vs Commissioner of Land, First Hall (Civil Court) 14 February 2018 (Mr. Justice J.R. Micallef).

34 575/2018 Alexander Montebello et vs Lands Authority, First Hall (Civil Court) 21 July 2020 (Mr. Justice G. Mercieca).

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Administrative Law Farrugia35, regarding a change in licence conditions of a hall at Żebbug, the Constitutional Court ruled that under Article 469A of Chapter 12, applicant had an adequate remedy, and that the court could declare as null such a change in the licence condition, and thereby putting him in the status quo ante.

In more recent times however, the Courts have taken a more cautious attitude when dealing with the judicial review remedy in the context of a constitutional action. As stated by the Court most recently in the Meliza Muscat case36: It is true that this remedy may be effective to revoke a decision regarding the award of prison leave. However, in such proceedings, the Court acts only as a court of cassation; it cannot order that prison leave be actually given, or that the complainants be allowed to marry. In any case, any remedy in terms of Article 469A, even if it could possibly address some of the complaints contained in this constitutional application, can never address them all.37 Consequently, the fact that the remedy under Article 469A is necessarily narrower and stricter than the general remedial power of a court of constitutional jurisdiction, which under Article 46 may ’make such orders, issue such writs and give such directives‘ as it deems fit , rendered the Article 469A remedy inadequate. This had been confirmed for the first time in the case of Ivan Vella38: In this regard the Court agrees with the submission made by applicant in his note, that a judicial review action grants the court 35 5/01 Raymond Farrugia vs Commissioner of Police, Constitutional Court 9 June 2004.

36 200/19 Meliza Muscat et vs Director Corradino Correctional Facility, First Hall (Civil Court) 2 September 2020 (Mr. Justice G. Mercieca).

37 ‘Huwa minnu li dan it-tip ta’ rimedju jista’ jkun effettiv biex tiġi mħassra d-deċiżjoni li l-ilmentatur ma jingħatax prison leave. Iżda fi proċeduri bħal dawk il-Qorti sservi biss bħala Qorti ta’ kassazzjoni : ma tkunx tista’ tordna li attwalment jingħata l-prison leave, jew inkella tordna li l-ilmentaturi jitħallew jiżżewwġu. Fi kwalunkwe każ, kwalunkwe rimedju a tenur tal-Article 469A anke jekk jista’ talvolta jindirizza uħud mill-ilmenti mressqa permezz ta’ din il-proċedura kostituzzjonali, ma jista’ qatt jindirizzahom kollha.’

38 39/04 Ivan Vella vs Attorney General, First Hall (Civil Court) 23 June 2005 (Mr Justice JR Micallef).

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id-dritt the power (in its ordinary civil jurisdiction) to consider the act as ‘null, invalid and without effect,’ but does not grant the power to the court to order how the administrative act has to be performed, or dictate to the defendant public authority what it ought to do to grant a remedy; and again in the case of Joseph Caruana39: The Court …feels that where the ordinary alternative remedy which is mentioned is that of judicial review of administrative action, one must be extremely careful before accepting such an action as an alternative remedy to one under the Constitution or the Convention, the reason being that remedies under Article 469A are rather limited.

Another matter which has produced conflicting judgments is the matter of access of the parties to documents relevant to any particular case. In the Gebremariam case40, plaintiff complained that an evaluation report submitted by the Refugees Commissioner on his asylum application, had been considered in its decision by the Refugee Appeals Board, but was not made available to him. This amounted to a breach of an express provision of the Refugees Act, as well as of the principles of natural justice (equality of arms), creating an imbalance between the parties. The decision of the Appeals Board was therefore declared null and without effect.

In the GWU case41, however, the Industrial Tribunal sought legal advice from two lawyers in private practice without informing the parties; in one case, the advice was inserted in the records; the other was never made available to them. The Court of First Instance, correctly in my view, upheld the demand of the General Workers’ Union and ruled that the decision of the Tribunal had breached the rules of natural justice.

The Court of Appeal surprisingly reversed this judgment, stating that in the case of one advice, it had been made available to the parties after the fact, even though they had not been informed that the advice was being 39 44/06 Joseph Caruana et vs Prime Minister et, Constitutional Court 31 October 2007.

40 65/10 Gebremariam Teshome Tensae vs Refugees Appeals Board, Court of Appeal 30 September 2016.

41 870/08 General Workers‘ Union vs Bank of Valletta plc, Court of Appeal 19 January 2010.

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Administrative Law sought and who the private legal advisors was; in the second advice, which was never made available to the parties, the Court ruled that it had not influenced the decision of the Tribunal. Such an irregularity, in my view, was serious enough to justify the annulment of the Tribunal’s decision as held by the court of first instance.

4. Conclusion In conclusion, I should stress the importance of having one law on judicial review of administrative action. Lawyers and legal practitioners already have to grope with deciding whether to file a judicial review action in certain cases owing to conflicting judgments. Therefore, they need certainty and clarity in such an important area of law. As things stand today, different cases of judicial review fall under Article 469A, or Article 116 of the Constitution, or the rules of English common depending on what matter is requested to be reviewed. A consolidated single Act of Parliament would make things easier, clearer and more logical.

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18

Civil Procedure

19

Frances Camilleri-Cassar Atti kawtelatori: to what extent are precautionary warrants adequate in safeguarding a person’s rights to secure a claim before the Civil Court?

Frances Camilleri-Cassar is a Full Professor in the Faculty of Laws. She is a social policy expert by training, with a Ph.D. from the School of Sociology and Social Policy at the University of Nottingham. Continuing interest in academic professional development has led her into the study of Law, and in 2020 she was awarded the H. Dip. L.P. magna cum laude from the University of Malta. Professor Camilleri-Cassar is a widely published qualitative methods researcher, and her most recent monograph is titled Academic Research Methods for the Law Student. A second edition of the monograph is currently work-in-progress. She is the Chair of the Faculty Research Ethics Committee, and an active Member of the Human Rights Platform of the Faculty of Laws.

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1. Introduction

T

his paper gives a concise but incisive view of the relevant provisions of the law surrounding precautionary warrants, atti kawtelatori, provided in Articles 829 through to 877 of the Code of Organization and Civil Procedure (COCP) Chapter 12 of the Laws of Malta. All warrants are issued by the court.

The procedure of application, and issuance of warrants by the Maltese Courts, and the question of whether these acts do indeed safeguard the rights of an individual, both before a case commences, and before a judgment is concluded, will be discussed. The contribution this study seeks to make is to assess the effectiveness of Malta’s atti kawtelatori in protecting the rights to a claim of any individual in Malta’s courts of law.

2. Court procedure The law states that a precautionary warrant is filed by an applicant, who under pain of nullity, must include details of the origin and nature of the claim sought to be secured by the warrant. Where the right sought to be secured is a debt, the amount of such demand must be specified. Moreover, in a situation where the case has already been filed and started, and the warrant has been resorted to, such claim may also include all judicial acts incurred up to that time. The application for a precautionary warrant is confirmed on oath by the applicant. The law provides that if there is more than one applicant to the same claim, the oath is taken by at least one of the applicants to the case.

Article 833A of the COCP provides that where a judicial letter is filed and sworn, according to Article 166A, there may also be sworn and filed the precautionary warrants as set out in Articles 830(1)(a), (b), and (d) of the COCP. Should there be a contestation of the judicial letter, in order for the precautionary warrant to remain in force, the application or sworn application, or the petition, as the case may be, must be filed within twenty days of filing the note of contestation; or within sixty days from the date of the issuing of the warrant, depending on which date occurs first.

Without prejudice, the respondent may make an application to the court for a counter-warrant, requesting the revocation of the precautionary 22

Civil Procedure warrant on grounds set out under Article 836(1)(a)-(f). Once the court accepts the revocation, the decree is final. Precautionary warrants cannot be issued against anyone for libel or defamation under any law. This is a special provision inserted in the general law, and applicable to any other law. All precautionary warrants remain in force for fifteen days, after which the case becomes res judicata, unless rescinded by the court, or withdrawn by the party suing out the warrant. The court may condemn the applicant, at whose request a precautionary act was issued, to pay a penalty, if the claim falls under any of the cases in Article 836(8)(a)-(d) of the COCP. Article 830 in the COCP draws out the precautionary acts established in the laws of Malta as follows: •

Warrant of description

•

Warrant of seizure

•

Warrant of seizure of a commercial going concern

•

Garnishee order

•

Warrant of impediment of departure

•

Warrant of arrest of sea vessels

•

Warrant of arrest of aircraft

•

Warrant of prohibitory injunction

3. Warrant of description Article 839 of the COCP provides that a warrant of description is issued so as to secure a right over movables. This warrant is often invoked in succession cases, and is established by law to protect the rights of the heirs. For instance, assume a situation where a dispute on inheritance arises between three siblings, following the demise of their mother. Many years previous to the mother’s death, two of the siblings had left the premises to live their independent lives. The third of the three siblings had never moved out of the mother’s home, and had lived on the same premises with the mother until her death. A situation arises where the two siblings who had set 23

id-dritt up abode elsewhere, may begin to suspect that the one sibling still living on the property, may decide to dispose of some movable items, without their knowledge. As a consequence and precaution, the two siblings living away from their mother’s home may agree between them to file an application in court for a warrant of description, in order to secure their respective rights, pending division and closure of the inheritance.

In such a situation, the executing officer at court will draw up a detailed description of each movable item existing on the premises, and the value of each item is appraised by court experts. Subsequently, when a warrant of description is issued, the movable items described in the list, remain in the possession of the one sibling still living on the premises, and that sibling remains responsible for their safekeeping until closure of inheritance.

Article 843 of the COCP provides that after the precautionary warrant is issued on the strength of a sworn application and prior to a court judgment, the claimant files the necessary action within twenty days from the issue of the warrant. At this point, the applicant is merely taking action to secure his/ her personal rights, and any eventual judgments are not prejudiced by the other parties or respondents.

In case of marital separation, where the issue of the warrant may be demanded by any of the two spouses, the law provides an exception in the procedure of the court application. In view of the possible negative issues arising between the spouses, a letter is sent to the Court Registrar demanding mediation. Mediation sittings may last for many months, and it is only when reconciliation or voluntary separation, bonaria, or an amicable settlement is ruled out that permission is given to the spouses to file a court case. In such cases, the time limit commences as from the date that the court authorizes the spouses to proceed, however, the warrant ceases in effect as soon as mediation proceedings are either abandoned or withdrawn. If without a just cause, the applicant/s fails to bring such action within the twenty-day time limit, the effects of the warrant shall cease, and the applicant/s shall be liable for any damages, together with interest incurred. This implies that a just cause exonerates the applicant/s from any liability, and the warrant remains valid. The warrant protects the rights of a separating couple to claim what is theirs before a final judgment.

While the law stipulates a twenty-day time limit within which to file an action, Article 844 of the COCP provides the respondent with the possibility of filing a note in the Court Registry to extend the time limit beyond what 24

Civil Procedure is applicable at law. This exception in the law is to protect the rights of the applicant suing out the warrant to secure a claim before a court case if filed.

For instance, assume a creditor is owed one million euro, and files for a warrant against the debtor. If the court is satisfied that the warrant is necessary, and that prima facie such person appears to possess such right, the court will go ahead with the issuance of a warrant. Subsequently, the applicant must file an action in court within twenty days against the respondent. As the amount claimed is substantially high, the creditor faces exorbitant rates of expenses for the application of a warrant and the court case. However, the law makes it possible for the parties in dispute to reach an agreement between them for the outstanding amount to be settled beyond the twenty days applicable at law. The court also ensures protection of the creditor against prejudicial consequences by providing that the warrant shall remain in force for such extended time. In such a situation, the debtor is aware there is no way out of the claim, as the creditor is free to give effect to the application of a warrant should the outstanding amount not be settled as agreed. The law provides that Articles 275, 276 and 279 of the COCP apply to the execution of a warrant of description.

4. Warrant of seizure: mandat ta’ qbid eżekuttiv The warrant of seizure involves an order to the Court Registrar to seize from the debtor such items from an indicated place. The law provides that a judicial sale by auction of the seized property shall not take place without a previous judicial acknowledgment or before obtaining an executive title. In case of perishable items, the court may order the sale of the assets pendente lite before the executive title has been obtained or order the sale by auction.

This is to protect a person’s rights before filing a court case. However, the warrant of seizure is rarely invoked due to the extra expenses involved.

Article 848 of the COCP provides that no warrant of seizure shall be issued by the inferior courts, unless the warrant and the claim are judicially acknowledged, and do not exceed the amount stated in the provision. In the inferior courts, a person cannot file the precautionary warrant and wait twenty days for the filing of the case. The warrant and the court case must be filed concurrently. It is not lawful to issue any precautionary warrant of seizure against the government.

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5. Warrant of seizure of a commercial going concern The warrant of seizure of a commercial going concern may solely be issued to secure a claim, which could be frustrated by the sale, in whole or in part, of said going concern. The law provides that no other warrant may be issued against the going concern, unless it is this warrant of seizure. The provision seeks to preserve the totality of the assets, and the good reputation of the commercial concern, and also to prevent the debtor from selling the concern.

The court seeks to avoid the liquidation of a business to the extent that it may refuse to issue such a warrant of seizure if it appears there are other means for the creditors to secure a claim. This provision protects the rights of the claimants who must prima facie satisfy the court that they possess such rights. Articles 940, 842, 843, 844 and 848 of the COCP are applicable to this warrant.

6. Executive garnishee order: mandat ta’ sekwestru The executive garnishee order, il-mandat ta’ sekwestru, seeks to protect the rights of a person to secure a claim before filing a court case, and the effects are the same as those of an executive title. The provisions in Articles 375 to 383 of the COCP, referring to the executive warrant, and Articles 842, 843, 844 and 848 of the COCP apply to such order.

The effectiveness of a garnishee order may be demonstrated in the following example: assume there is a creditor, a debtor and a third party which may be an individual or even a bank. In such a hypothetical situation, the creditor may request the court to order the respective bank to not release the money belonging to the debtor, up to the amount stipulated in the garnishee order. However, the law provides a proviso: if the bank had an agreement with its client that it will pay money on client’s behalf, the bank cannot be stopped from effecting the payment. The legislator allows the bank to honour its commitment with its client, on condition that the commitment was entered into prior to the issue of the garnishee order.

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Civil Procedure Article 851 of the COCP provides that the court may order a judicial sequestration. Another hypothetical situation is a dispute between two parties where the court orders that the amount of money pertaining to the litigation be deposited with or delivered to a third party. In this case, the third party is bound to return the amount following a court decision. The court often appoints lawyers in the role of sequestrators. The sequestration may be ordered in the case of two litigants as to who is the lawful owner of any immovable property. Sequestrators may be chosen by either the parties to the dispute or by the court ex officio.

It is not lawful to issue a garnishee order against the government.

7. Warrant of arrest of sea vessels A precautionary warrant of arrest of any sea vessel is issued solely to secure a debt or claim in personam or in rem, which could be frustrated by the departure of the vessel in question. Effects of warrant is to seize the vessel from the debtor, and attach a warrant, sekwestru, in the hands of an authority e.g. a maritime authority to stop the release of the vessel, and prevent the debtor from divesting himself from the vessel, whether in whole or in part, or surrender to any person any rights on the same vessel. The warrant has the effect of attachment of property that is subject to a court order. The authority in question is the consignee, il-kunsinatarju. The court may also order the sale of an arrested vessel, pendente lite, if the debtor appears insolvent or unlikely to continue trading and maintaining the asset.

8. Warrant of arrest of aircraft Similarly, the warrant of arrest of an aircraft is issued solely to secure a debt or claims, whether in personam or in rem, which could be frustrated by the departure of the aircraft in question. The effects of the warrant are to seize the aircraft from the debtor, and to attach in the hands of the authority, the consignee, which will not release the aircraft or allow the debtor to divest himself from the same, whole or in part, or surrender to any person any rights on the same aircraft.

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9. Warrant of prohibitory injunction: il-mandat ta’ inibizzjoni.

The warrant of prohibitory injunction, mandat ta’ inibizzjoni, found in Articles 873 to 877 of the COCP issued by the Court in favour of the plaintiff, is to assert a legal right to the person suing out the warrant, and ensure that the right is safeguarded from the actions of a party which, without such imposition, may cause damage prejudicial to the plaintiff. The prohibitory injunction is to protect the rights of a person from prejudice, however, it becomes clear in the following example that issuance of such warrant for protection from actions by the defendant, may not always be adequate or effective.

Assume a dispute between two neighbours over the construction of a swimming pool. It so happens that neighbour B is concerned that the pool under construction by neighbour A will cause structural damage to his property, which lies adjacent to neighbour A’s property. The law provides that neighbour B may file a sworn application requesting a prohibitory injunction against neighbour A to halt procedure of works. In such a situation, the court will not rely solely on the sworn application by neighbour B, but must also be satisfied, prima facie, that neighbour B possesses such rights for the issuance of a prohibitory injunction.

The court shall not issue any such warrant unless it is satisfied that the issuance of such warrant is justifiable in order to preserve any right of the person suing out the warrant.

Alternatively, the court may compensate neighbour B with a sum of money. However, neighbour B may prefer peace of mind that his property does not risk any structural damages than be awarded the sum of money. In practice, the courts have, in numerous judgments, rejected applications for the mandat ta’ inibizzjoni on grounds that other remedies may be available to the defendant, that protect from actions by a third party.

To compound the inadequacy of the warrant of prohibitory injunction to protect a person’s rights, Article 873(3) of the COCP provides that the court shall not issue such a warrant against the State or Authority established by the Constitution, or even against a public officer, unless such authority confirms in open court that the works sought to be restrained are in fact already on plan. Moreover, the court must be satisfied that unless the warrant is issued, the damage suffered by the person suing out the warrant would be disproportionate to the works sought to be restrained. Apart from 28

Civil Procedure its inadequacy, in this example, the State also enjoys a privileged status compared to the rights of an individual.

The court may indeed order the government to compensate the claimant for damages. However, payment for damages may provide no real remedy to the applicant. For example, money will not compensate for the expropriation of a person’s property to be used by the government to build a new road.

Moreover, the court must be satisfied that the prejudice is disproportionate.

And that the issuance of a warrant is justifiable. However, such an assessment is subjective because what may be assessed as disproportionate to one court, may be proven proportionate by another court.

Article 874(1) of the COCP is a 2016 amendment in the law, and provides for a warrant of prohibitory injunction that may be demanded by a creditor to secure a debt or any other claim to the amount of no less than €11,647.

The object of this warrant is to restrain the debtor from selling, transferring, disposing or alienating inter vivos such property indicated in the application, by onerous or gratuitous title or in any manner that burdens or infringes on the creditor’s personal rights.

A situation may arise whereby the debtor who owes the creditor more than the amount stipulated at law, seeks to dispose of any property he may have, so that the creditor is unable to execute a warrant against the debtor.

As a form of security, the creditor demands the issuance of a warrant of prohibitory injunction to prevent the debtor from disposing of the property.

Upon registration of the warrant in court, any future sale or transfer of such property shall be void, and to no effect. This is to protect the claim and the right of the creditor which would otherwise be frustrated. The warrant remains in force for up to one year, so as to allow the creditor enough time to recover the debt or claim.

The court will provisionally accept the issuance of the warrant of prohibitory injunction, and will order that the application be served on the respondent with an obligation to file a reply within ten days. The court will have a hearing of any evidence, and will decide whether to uphold the original decree, whereby it had accepted the warrant, or revoke the warrant provisionally upheld.

Article 876 of the COCP refers to a warrant of prohibitory injunction in cases of personal separation or divorce. The law provides that any of the two spouses may request the court to issue a warrant of prohibitory injunction in 29

id-dritt 3 instances: (i) to restrain the other spouse from selling, disposing inter vivos any shareholding in any commercial partnership when this forms part of the community of acquests; (ii) against any commercial partnership where the other spouse has a majority shareholding forming part of the community of acquests; (iii) to contract any debt or suretyship, which is a charge on the community of acquests. A demand to the court for the issuance of a warrant of prohibitory injunction may be made at any time, and until the final judgment to protect the rights of both the spouses.

Article 877 of the COCP provides for the issuance of a warrant of prohibitory injunction to restrain any person from taking a child outside Malta. The warrant is served on the person who has court custody of the minor, on the passport officer, and the Commissioner of Police. If the person served with the warrant fails in such duty, and the minor is taken out of Malta, that person is guilty of contempt of court. This warrant remains in force for one year from the day it has been issued, however, a time extension may be requested as long as the warrant has not yet expired. If the request is not demanded in time, the Passport Officer and Commissioner of Police shall not be liable if the child is taken out of Malta.

10. Conclusion This paper sought to provide an overview of the laws surrounding general precautionary warrants, atti kawtelatori, in Articles 829 to 877 of the COCP. It also discussed in some detail, instances where a party to the dispute may request the issuance of a warrant by the Maltese court against any damages or prejudice, and the extent to which, each of the precautionary warrants, issued in favour of the individual, could adequately and effectively defend and protect their personal rights to secure a claim before being caught by any court ruling.

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Daniele Gafà, John Caruana The new concept of climate change liability and the use of human rights challenges in climate change litigation.

Dr Daniele Gafà graduated from the University of Malta with a Bachelor of Laws (Hons.) degree and a Master of Notarial Studies. Having aspired to follow in his father’s footsteps, Daniele Gafà nowadays practices as an Associate at Gafà Notaries & Associates. Comprising a fully-fledged Notarial firm, Gafà Notaries and Associates offers a multitude of notarial services, ranging from property transfers, wills and contracts to company incorporation, estate planning and matrimonial agreements. Dr Gafà is no stranger to the Malta Law Students’ Society (GħSL), having served as its Academic Officer during the 2016-2017 term of office, while being elected President of the organisation just a year later.

Dr John Caruana is a warranted law graduate who works as a legal advisor at KSi Malta. He specialises in different areas of practices but mainly in immigration, contractual drafting regulatory compliance and international tax law. He is currently reading for a degree of master of laws from the University of London via distance learning.

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1. Introduction

F

or decades, climate change liability was merely seen as a topic of theoretical interest, one which only a few people engaged in. Nowadays however, global warming is a contemporary reality widely accepted in modern society, and testifying to such a reality has been the persistent increase in climate change litigation exhibited in recent years.1 As Smith and Shearman rightly contend, such increase in litigation points to the right direction as ‘lawsuits, whether successful or not focus public attention upon key issues through media exposure and can be effective in influencing governmental and corporate policies’.2 As of September 2020, over 1200 cases have been filed in the United States alone, while almost 400 cases have been filed in all other jurisdictions combined.3 With the catastrophic effects of climate change being felt more and more each year, these numbers are expected to increase exponentially.4 Given the disastrous effects of several weather-related catastrophes like Superstorm Sandy, Hurricane Harvey and Cyclone Pam, it is not surprising that human rights have been integrated in climate change-related actions. Some of the human rights being negatively impacted by these calamities include the rights to life, food, health, water, sanitation and housing.5 Arguably, the success of the rights argument in recent cases such as Urgenda Foundation v The State of the Netherlands6, might pave the way for it to become the predominant tool employed by climate change victims in future cases.

Although such success may have been foreshadowed by a multitude of legal obstacles along the way, this should not serve as to dissuade climate 1 Michael Faure and Marjan Peeters, Climate Change Liability (Edward Elgar Pub 2011) 4.

2 J. Smith and D. Shearman, Climate Change Litigation: Analysing the law, scientific evidence and impacts on the environment, health and property (Presidian Legal Publications 2006) 12.

3 <http://climatecasechart.com/about/> accessed 7 January 2020.

4 ‘Climate Change and Human Rights: A Rough Guide’ (International Council on Human Rights Policy 2008) 41 <http://www.ichrp.org/files/reports/45/136_report.pdf> accessed 4 January 2020.

5 ‘Understanding Human Rights and Climate Change’ (The Office of the High Commissioner for Human Rights 2015) 6 <http://www.ohchr.org/Documents/Issues/ClimateChange/COP21.pdf> accessed 9 January 2020.

6 Urgenda Foundation v The State of the Netherlands C/09/456689/HA ZA 13- 1396; ECLI:NL:RBDHA:2015:7145 (Hague District Court, the Netherlands) (2015).

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Climate Change Litigation change victims from resisting such breaches of their fundamental human rights.

2. Goals of Climate Change Liability The salient objectives of climate change liability may be construed as threefold. Firstly, there is the objective of compensation: ‘it is a function of the law of torts to determine when […] harm is worthy of compensation, and, if it is judged so worthy, to oblige the one that has caused the harm to make the necessary reparation’.7 This aim has been described as being rather backward-looking as it seeks to obtain redress for damages which have already occurred.8 On the other hand, the contrary may be said of the other two objectives of climate change liability, namely: deterrence and the implementation of the polluter-pays principle.

Through deterrence, a change in the conduct of the actors that cause greenhouse gas emissions, hereinafter referred to as ‘GHG emissions’, is sought. This may be achieved not only directly, when plaintiffs (climate change victims) request injunctive relief, but also indirectly when they demand compensation. After all, simple economic logic dictates that when a tortfeasor is aware of the possibility of being held accountable for any damages imputable to his actions, that tortfeasor will take adequate care to mitigate such damages or avoid them altogether.9 With regard to the polluterpays principle, as its nomenclature suggests, this notion necessitates those contributing to pollution to bear the expenses of managing it, thereby averting damages to health and the environment.10 For the most part, this principle has been regarded as being a variant to the objective of deterrence, since cost-internalisation would also result in a change of conduct. Nonetheless, it also has the just outcome of allotting expenses away from victims to those who should really be paying them: the polluters.11 7 M. Kerr, Tort Based Climate Change Litigation in Australia, Climate Change Litigation Forum materials, London, March 2002.

8 Faure and Peeters (n 1) 258.

9 Michael G. Faure and André Nollkaemper, ‘International Liability as an Instrument to Prevent and Compensate for Climate Change’ (2007) 26 A Stanford Environmental Law Journal 140.

10 Bob Ward and Naomi Hicks, ‘What is the ‘polluter pays’ principle?’ <https://www.theguardian.com/environment/2012/jul/02/polluter-pays-climate-change> accessed 7 January 2020.

11 Faure and Nollkaemper (n 9) 142.

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3. Obstacles to Climate Change Liability Jurisprudence has demonstrated that there are three major intertwined impediments standing in the way of success in climate change liability: justiciability, which may be further divided into two major elements – locus standi and the separation or balance of powers; causation; and, the doctrine of displacement. Whatever the form of outcome sought by the climate change victim against the alleged offender, the claimant must necessarily find some way of overcoming all three obstacles.

4. Justiciability: Locus Standi Essentially, locus standi refers to the conditions that one must satisfy in order to be able to bring a lawsuit to court. The predominant aim here is to guarantee that the parties have sufficient juridical interest in the case’s end result and that the allegations brought by the parties may be resolved legally. The element of locus standi has proved decisive in countless cases, with one of the most cited being that of Massachusetts v Environmental Protection Agency (EPA)12. In this case, numerous states, municipalities, nonprofits, and land trusts petitioned the EPA13 to regulate GHG emissions from new motor vehicles under the Clean Air Act14. The defendants argued that the plaintiffs lacked standing, an assertion which was eventually rejected by the U.S. Supreme Court on the basis that ‘Massachusetts, as a sovereign State own[ed] a great deal of the territory alleged to be affected’ and that through a court resolution, the EPA could be compelled to take steps to reduce that risk.

Another case tackling this issue in which the Court had the opposite view on the matter was that of Comer v Murphy Oil USA15. The Fifth Circuit Court of Appeals here held that since the plaintiff landowners could not demonstrate that the damages that they suffered due to Hurricane Katrina were directly traceable and imputable to the defendant fossil fuel and chemical companies,

12 Massachusetts v EPA, 549 U.S.,127 S.Ct. 1438 (2007).

13 Michael B. Gerrard and Joseph A. Macdougald, ‘An Introduction to Climate Change Liability Litigation and a View to the Future’ (2013-2014) 20 Conn. Ins. L.J. 154 14 42 U.S.C. 7401 et seq.

15 Comer v Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009).

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Climate Change Litigation it had no other option but to dismiss the case.16 Notably, outside the USA, the question of locus standi does not always present itself as such an insurmountable obstacle. In fact, this issue has received far less attention, particularly in developing countries with Courts often overlooking the issue altogether. Such cases include Gbemre v Shell Petroleum Development Company Nigeria Limited and Others17 and the Colombian case, Decision C-035/16, decided on the 8 February, 2016. In any case however, the significance of locus standi as an impediment to climate change litigation should not be underestimated, particularly with the USA being the top host of climate change litigation cases worldwide.

5. Justiciability: Separation or Balance of Powers The doctrine of separation of powers finds its roots in ‘the courts’ reluctance to invade the constitutionally allocated powers of the executive and legislative branches of government’18. Thus, in this situation, a suit becomes nonjusticiable when it raises a ‘question […] to be decided, by a political branch of government coequal with this Court’ that poses a ‘risk [of] embarrassment of [the] government abroad, or [of] grave disturbance at home’ or which seeks ‘policy determinations for which judicially manageable standards are lacking’19.

Linking this doctrine to climate change litigation, some lower courts in the United States have used the argument of non-justiciability of political questions to dismiss certain claims. This is for instance demonstrated in the stance taken by the District Court in Connecticut v American Electric Power Co20, wherein an action was brought by a number of states and non16 Michael Burger and Justin Gundlach, ‘The Status of Climate Change Litigation: A Global Review’ (The United Nations Environment Programme 2017) 29 <http://columbiaclimatelaw.com/ files/2017/05/Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf> accessed 24 January 2020.

17 Gbemre v Shell Petroleum Development Company Nigeria Limited and Others Suit No. FHC/B/CS/53/05; (2005) AHRLR 151 (NgHC 2005).

18 Philip Weinberg, ‘“Political questions”: an invasive species infecting the courts’ (2008) 19 Duke Environmental Law and Policy Forum 156-157 <https://scholarship.law.duke.edu/cgi/ viewcontent.cgi?article=1064&context=delpf> accessed 27 January 2020.

19 ibid 163-164, citing Baker v Carr, 369 U.S. 186, 226 (1962).

20 Connecticut v Am. Elec. Power Co., Inc., 582 F.3d 309 (2d Cir. 2009), revised, 131 S. Ct. 2527 (2011).

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id-dritt profit land trusts against six electricity companies, claiming that the latter’s emissions of greenhouse gases contributed to global warming.21 The Court ended up dismissing the suit, noting that the decision whether or not to lay down any limits on emissions is a power vested in the US Congress. However, as was stipulated very clearly by the Supreme Court when it came to decide upon the same Connecticut case, this argument has been rejected outright by higher courts. The question of whether this ruling will restrict Courts from referring to the doctrine of separation of powers when dealing with climate change liability cases in the future still remains to be seen.22

6. Causation Even though numerous Courts have accepted the scientific consensus with respect to the causal relationship between GHG emissions and the negative impacts of climate change, there exists no judgement wherein this causal link was expressly used by the Court to establish liability. Plaintiffs have long been trying to convince the Courts to take up such approach, but to no avail. Lliuya v RWE AG23 is one of the judgements depicting such plaintiffs’ determination. This case concerned a Peruvian farmer who sought compensation to offset the expenses that he incurred to protect his town from melting glaciers, for which he claimed that RWE was partially responsible, the latter being Germany’s largest electricity producer. The Court, however, dismissed the plaintiff’s claims stating that he had failed to prove causation; it held that not only had he failed to provide the Court with evidence showing RWE’s exact yearly contribution to global emissions, but also, no ‘linear causal chain’ or nexus had been convincingly established between the emissions and the alleged injury.24

21 Amelia Thorpe, ‘Tort-Based Climate Change Litigation and the Political Question Doctrine’ (2008) 24 J. Land Use & Envtl. L. 81.

22 Michael Byers, Kelsey Franks and Andrew Gage, ‘The Internationalization of Climate Damages Litigation’ (2017) 7 Washington Journal of Environmental Law & Policy 274 <https:// digital.lib.washington.edu/dspace-law/bitstream/handle/1773.1/1709/7WJELP264.pdf?sequence=1&isAllowed=y> accessed 24 January 2020.

23 Lliuya v RWE AG 2 O 285/15 (Essen Regional Court, 2016).

24 Burger and Gundlach (n 16) 21.

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Climate Change Litigation A pending petition in which numerous environmental organisations and Filipino citizens are attempting to convince the Philippine Commission on Human Rights that climate change victims ought to be given remedies is that of Greenpeace Southeast Asia et al. In order to satisfy the required causation element, plaintiffs have presented factual evidence singling out fifty corporations as ‘Carbon Majors’, holding them accountable for a cumulative 21.71% of the anthropogenic greenhouse gases that were emitted from 1751 to 2010.25 The decision taken by the Commission could turn out to be quite effective, as even though it does not have the power to issue orders, it could issue recommendations to Congress on effective measures which may be taken.

7. The Doctrine of Displacement This doctrine of displacement ‘may pose the greatest barrier for climate damages litigation in the United States’.26 It basically holds that U.S. Courts cannot deliver judgment upon cases which include matters of national concern that are already statutorily catered for by federal legislation.

Therefore, in cases where a ‘statute speaks directly to the question at issue’, federal common law (for example public nuisance, which climate change victims have used to institute climate litigation cases before the Court) is displaced (thus, inapplicable).27 With regards to climate change, the most relevant federal statute is the Clean Air Act. One of the major US cases wherein it was held that this statute displaced federal common law was that of Native Village of Kivalina v exxonmobil Corporation28. This was a judgement instituted by the Alaskan Village of Kivalina against twenty-four of the largest US power companies, whereby the plaintiffs sought damages, claiming that that the defendants’ 25 Petition of Greenpeace Southeast Asia at 3–4 (citing Richard Heede, ‘Carbon Majors: Accounting for Carbon and Methane Emissions 1854-2010, Methods and Results Report’ (2014) <https://perma.cc/CVY4-YANG> accessed 26 January 2020.

26 Byers, Franks and Gage (n 22) 276.

27 Mark Belleville and Katherine Kennedy, ‘Cool Lawsuits: Is Climate Change Litigation Dead After Kivalina V. Exxonmobil?’ (2013) 7 Appalachian Natural Resources Law Journal 51, 58, 80.

28 Native Vill. of Kivalina v ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), affd, 696 F.3d 849 (9th Cir. 2012)

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id-dritt contribution to global warming had severely eroded the land constituting the city of Kivalina and also threatened it with immediate destruction. Acting on the basis of the doctrine of displacement, the Court eventually dismissed the case. Another case which ended up being dismissed by the Court on this basis was the aforementioned Connecticut v American Electric Power.

8. The 2015 Urgenda Decision: A turning point in Climate Change Litigation?

Following years of insurmountable obstacles, the year 2015 marked the beginning of what is often referred to as ‘the new wave of climate change litigation’29 which owes its conception to the ground-breaking Urgenda Foundation v Kingdom of the Netherlands case30. This case essentially constituted a class action instituted by 886 Dutch citizens, represented by the NGO Urgenda Foundation, wherein the plaintiffs alleged that the Dutch government’s pledge to reduce GHG emissions to 17% below 1990 levels by the year 2020 was insufficient for it to ‘meet the state’s fair contribution toward the UN goal of keeping global temperature increases within two degrees Celsius of pre-industrial conditions.’31 Contrary to its predecessors in climate change litigation, the class action succeeded; the Court awarded the plaintiffs injunctive relief, ordering the Dutch State to adopt a more ambitious GHG emission reduction target (25% as opposed to 17%). Instrumental to Urgenda’s success was its innovative use of human rights as its central line of argumentation. Although it is quite true that this ruling is not binding on other Courts, it does lay down a precedent for climate change victims on how they might overcome the impediments of climate litigation cases.32

29 Giulio Corsi, ‘A bottom-up approach to climate change governance: the new wave of climate change litigation’ (ICCG Reflection No.57 October 2017) 2 <http://www.iccgov.org/ wp- content/uploads/2017/10/57_Climate-change-litigation_Giulio-Corsi.pdf> accessed 25 January 2020.

30 Urgenda (n 6) 31 ‘LSE: Urgenda Foundation v Kingdom of the Netherlands’ <http://www.lse.ac.uk/GranthamInstitute/litigation/urgenda-foundation-v-kingdom-of-the-netherlandsdistrict-court-of-the-hague-2015/> accessed 25 January 2020.

32 Roger Cox, ‘A Climate Change Litigation Precedent: Urgenda Foundation V The State Of The Netherlands’ (2016) 34 Journal of Energy & Natural Resources Law 161.

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9. Utilising the Fundamental Human Rights Argument As is demonstrated by Urgenda, one of the more innovative, significant and idiosyncratic elements of this ‘new wave of climate change litigation’ is the extensive use of fundamental human rights as the basis of climate change liability. Such plaintiffs have consistently raised the argument that a State’s failure to implement sufficient climate change mitigation policies inherently results in the violation of its citizens’ constitutional and fundamental human rights. The use of fundamental human rights as the foundation to climate change liability actions ensures ‘a solid and non-political statutory basis to challenge State policies and decisions.’33 Focusing first on constitutional law as a source for fundamental human rights, an increasing number of national constitutions, nowadays, enshrine within them right-based provisions which directly or indirectly seek to safeguard environmental rights. Such rights may take a multitude of forms: from procedural rights such as the right to public involvement with regard to environmental policy making, to traditional rights to property, life and a healthy environment. In cases such as Earthlife v Ministry of the Environment34, plaintiffs have cited national constitutions as the prime legal instruments to challenge statutory legislation which runs contrary to constitutionally protected rights, hence holding governments accountable for their environmental policy decisions. In the latter case in fact, the Court accepted the plaintiff’s arguments that the South African planning authority’s proposed construction of a new coal plant would amount to a violation of Article 24 of the South African Constitution: Everyone has a right to: A) An environment that is not harmful to their health or well-being and; B) To have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures[…]

Similarly, Article 21 of the Dutch Constitution lays down the duty of the 33 Corsi (n 29) 5.

34 Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others (2017) 65662/16.

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id-dritt State to keep the country habitable and to maintain a healthy environment.

Though this constitutional provision is not directly enforceable (similar to Chapter II of the Maltese Constitution containing the Declaration of Principles), the Dutch Court in Urgenda nonetheless found that such a duty of care must be taken into account in adjudication.

The European Convention on Human Rights, hereinafter referred to as the ‘ECHR’, is another body of legislation often quoted as a supporting argument in several European cases. In Greenpeace Nordic Association and Nature and Youth v Norway Ministry of Petroleum and Energy35 for instance, the plaintiffs challenged the Norwegian State’s allocation of oil and gas drilling permits, arguing inter alia that such permits are in violation of Articles 2 and 8 of the ECHR (concerning the right to life and the right to respect for private and family life, respectively). Despite its obvious merits, this argument was eventually rejected by the Courts both at first instance and at appellate stage.

Given the popularity of the ECHR in climate change litigation, it is somewhat surprising that the European Court of Human Rights (hereinafter referred to as the ‘ecthr’) has yet to deliver judgement upon a case of this genre, especially when considering that the ecthr has not shied away from recognizing the right to environment in various judgements, amongst which is the Tatar case36. Experts in the field need not wait much longer however, with the first complaint of its nature being filed before the ecthr on the 2 September, 2020. Relying primarily upon Articles 2, 8 and 9 of the ECHR protecting the right to life, privacy and the right against discrimination respectively, the Youth for Climate Justice v Austria, et al.37 complaint alleges that the respondent States (33 countries in all) have breached fundamental human rights by failing to adopt sufficient action to combat climate change.

To this end, the applicants are petitioning the ecthr to order more ambitious action in this regard.

35 Greenpeace Nordic Association and Nature and Youth v Ministry of Petroleum and Energy (2016) Oslo District Court.

36 Tătar v Romania App. No. 6702 1/01.

37 Youth for Climate Justice v Austria et al.

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10. Factors contributing to the recent success of the Human Rights Argument Notwithstanding its effectiveness and recent success with regard to climate change litigation, the human rights argument ought not to be employed as a stand-alone argument. In the Inuit case for instance, an alliance of Inuit indigenous people, living in the Arctic regions of Canada and the United States, filed a petition with the Inter-American Commission on Human Rights (IAHCR), claiming that the US Government’s failure to reduce its GHG emissions constituted a breach of their fundamental human rights. A substantial amount of detail was delved into, explaining how the rapid melting of snow and ice caps caused by global warming meant that the Inuits’ way of life and culture would soon be coming to an end. Some of the contemplated rights violations included rights: ‘to the preservation of health’, ‘to life, physical integrity and security’, ‘to their own means of subsistence’, and ‘to residence and movement and inviolability of the home’38. Notwithstanding the compelling arguments and substantial evidence presented in the petition, eventually, the complaint was deemed inadmissible by the Commission.

The unsuccessful experiment in Inuit testifies to the claim that when presented on its own, the human rights argument can only be destined for failure. In line with this hypothesis, Giulio Corsi in the ICCG Reflection entitled A bottom-up approach to climate governance: the new wave of climate change litigation, identifies five other idiosyncratic elements should accompany such an argument for it to stand any chance of success. These elements are: public interest litigation, the use of modern climate science, the State negligence argument, the public trust doctrine, and the use of International Law. Such aspects have characterised and distinguished the contemporary surge of successful climate change litigation cases from those which preceded them.

38 (n 4) 42.

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11. Public Interest Litigation The first characteristic identified by Corsi relates to the aforementioned issue of locus standi. Recent climate change litigation has proposed an innovative solution: the use of what is known as public interest litigation.

Public interest litigation, hereinafter referred to as ‘PIL’, has been described as ‘a demonstrated attempt at rights empowerment, giving tangible meaning and content to human rights’39. It reinforces the human rights argument by advocating for ‘the cause of minority or disadvantaged groups or individuals’ or raising ‘issues of broad public concern’.40 The suitability of PIL to climate change litigation may be outlined in a twofold manner. To begin with, PIL is by definition political in nature and empowers plaintiffs to institute action against governments, demanding changes in environmental policy for the public interest while ‘shielding plaintiffs from being stopped for alleged non-justiciability of the claims or because the claims are of a political nature.’41 Moreover, PIL is inherently representative of the public interest and thus, no link of causation or injury need be proved.

The virtues of public interest litigation in establishing locus standi are well demonstrated by case-law belonging to this new wave of climate change litigation. In Leghari v Pakistan42 for instance, a PIL action was instituted by a Pakistani farmer, challenging the Punjab and Pakistani Governments’ inaction with regard to climate change mitigation measures. The Court affirmed the farmer’s locus standi, holding that public interest litigation is a well-established form of litigation in the local legal sphere. Similarly, in VZW Kilimatzaak v Kingdom of Belgium43, the Court found that although in the past, public interest litigation was not permitted in Belgium, more recent 39 Vinodh Jaichand, ‘Public interest litigation strategies for advancing human rights in domestic systems of law’ <http://www.scielo.br/scielo.php?pid=S1806-64452004000100006&scri pt=sci_arttext&tlng=en> accessed 16 January 2020.

40 ‘The PILS Project: About Public Interest Litigation’ <https://www.pilsni.org/about-public-interest- litigation> accessed 16 January 2020.

41 Corsi (n 29) 2.

42 Leghari v Federation of Pakistan (2015) W.P. No. 25501/2015.

43 VZW Klimatzaak v Kingdom of Belgium (2015) Court of First Instance, Brussels (Case Number not available).

44

Climate Change Litigation jurisprudence (marked by the ratification of the Aarhus Convention44) does contemplate the possibility of ngos being granted access to Courts on the basis of claims ‘d’instances publiques’, hence overcoming traditional locus standi requirements.

12. The use of Modern Climate Science Applicants in climate change liability cases are typically required to present concrete scientific data and evidence to support their pleas in Court.

Since the first Intergovernmental Panel on Climate Change Assessment Report, hereinafter referred to as IPCC Assessment Report, was released back in 1990, climate science has come a long way. Notwithstanding a wealth of diversified sources supporting the well-established fact that climate change is a real threat, imputable to mankind, and causing almost inconceivable damage to the wellbeing of the world’s environment and its inhabitants, the residual existence of climate change sceptics (perhaps most prominently U.S. President Donald J. Trump) has meant that merely proving the veracity of this global threat in Court has proved more tedious a task than one might first expect.45 In his dissenting opinion to Massachusetts v EPA for example, Justice Scalia found the scientific evidence presented to be too uncertain for the Court to pursue the action demanded by the plaintiffs.

Thankfully nowadays international climate science has reached what may be referred to as the ‘safety threshold’ whereby the scientific understanding of climate change is rather profound, and with the fifth IPCC Assessment Report having a confidence level of 95%, very little room for opposition remains.46 Such concrete, indisputable evidence has demonstrably facilitated 44 The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998 45 David Michaels and Celeste Monforton, ‘Manufacturing Uncertainty: Contested Science and the Protection of the Public’s Health and Environment’ (2005) 95 American Journal of Public Health.

46 IPCC, ‘Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change’ (2013) [Stocker, T.F., D. Qin, G.- K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 1535 pp, doi:10.1017/CBO9781107415324.

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id-dritt the use of the human rights argument in climate change liability litigation.

While in past case-law, the precautionary principle47 played a central role in climate-change litigation, nowadays, modern climate science has reduced plaintiffs’ reliability on this principle, at times using it instead as a buttress to substantiate their arguments. In bringing evidence of the causal link between anthropogenic greenhouse gas emissions and climate change, as well as the negative implications to the environment, plaintiffs have for the most part consistently brought forward a diverse spectrum of scientific sources so as to minimalize any possibility of scepticism, focusing on both international and national climate change studies.48 The most quoted of all sources is undoubtedly the latest IPCC Assessment Report, the holistic approach of which encompasses nearly every aspect of climate change imaginable, ‘ranging from mitigation pathway scenarios to temperature increases and sea level rises’49. In addition, in cases such as Pandey v India50, plaintiffs have also sought to utilise other international reports (in this case, the World Health Organisation’s Climate Health Fact Sheet), while others still, for instance in the Vienna Schwechat Airport Expansion case51, opted to cite local findings to substantiate their arguments (in this case, research conducted by the Austrian Panel on Climate Change).

13. The State Negligence Argument Also contributing to the human rights ground for argumentation is what is known as the State negligence or public negligence argument, the fourth common characteristic outlined by Corsi. Intrinsic to the nature of Statehood is a State’s duty of care towards its citizens, whether written or unwritten, 47 Report of the United Nations Conference on Environment and Development, UN Doc: A/ CONF.151/26 (Vol. I), Principle 15: ‘Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’ <http://www.un.org/documents/ga/conf151/ aconf15126-1annex1.htm> accessed 17 January 2020 48 De Vilchez Moragues P, ‘Broadening The Scope: The Urgenda Case, The Oslo Principles And The Role Of National Courts In Advancing Environmental Protection Concerning Climate Change’ (2016) 20 Spanish Yearbook of International Law. 49 Corsi (n 29) 4.

50 Pandey v India (2017) National Green Tribunal at Principal Bench, New Delhi.

51 Vienna Schwechat Airport Expansion (2017) W109 2000179-1/291E.

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Climate Change Litigation achieved inter alia by safeguarding their fundamental human rights. Failing to fulfil such duty with respect to climate change, the public negligence argument envisages the possibility of States being held liable for negligence under tort.

Generally speaking, Courts are rather reluctant to hold national governments liable for political choices which fall within the boundaries of their administrative discretion.52 They hence typically expect a higher standard of proof from the complainant with regard to evidence proving the four elements fundamental to all negligence claims: a duty, a breach, link of causation and injury.53 With respect to climate change liability, jurisprudence has suggested that the most challenging of the four elements to substantiate with evidence is that of ‘duty’ as the vast majority of legal systems lack any statutory provisions expressly imposing on the state the duty to combat climate change.

When analysing the notion of duty, it is necessary to refer once again to the Urgenda case, one of the few cases which has managed to overcome it.

In this judgement, it was clarified that the obligation to adopt more ambitious emission reduction targets was inherent to the State’s general duty of care towards its citizens. In reaching this conclusion, the Court made use of several sources, including inter alia: Section 6:162 of the Dutch Civil Code (defining a ‘tortuous act’), Articles 2 and 8 ECHR, paired with the fundamental principles of international law to be discussed hereunder. As can be deduced from this same case, once this first element is successfully proven, demonstrating the existence of the other three elements may turn out to be easier than expected. In Urgenda for instance: the ‘breach’ was evidenced by comparing the Dutch Government’s reduction target with what was required to prevent environmental damage as per the IPCC Assessment Report; ‘causation’ was again proven by means of scientific data demonstrating that, though minimally so, the Netherlands’ GHG emissions were in fact contributing to global warming; and with regards to the final element of ‘injury’, this was not required since the action was presented as public interest litigation.

Following Urgenda’s success in proving State negligence, several similar 52 Stephen Bailey, ‘Public Authority Liability In Negligence: The Continued Search For Coherence’ (2006) 26 The Journal of the Society of Legal Scholars 155 <http://onlinelibrary.wiley. com/doi/10.1111/j.1748-121X.2006.00017.x/abstract> accessed 17 January 2020.

53 David Hunter, James Salzman and Durwood Zaelke, International Environmental Law And Policy (Foundation Press 2016).

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id-dritt complaints were instituted shortly after (most notably the PUSH Sweden Nature and Youth Sweden and others v Government of Sweden54), building upon the same combination of arguments. The post-Urgenda popularity of this line of argumentation is arguably not unwarranted. Contrary to other approaches, the public negligence argument, if successful, may be utilised to enforce more ambitious climate change combatting measures by national governments, completely revolutionising the entire notion of climate change liability. Since many such cases are still on-going, lamentably, it still remains to be seen whether this ground for argumentation manages to fulfil its potential in different legal contexts.

14. The Public Trust Doctrine Shifting the discussion to what is known as the Public Trust Doctrine, hereinafter referred to as ‘PTD’, PTD has characterised several recent climate change liability cases in common law jurisdictions. Being a common law notion originally derived from property law, the Public Trust Doctrine stipulates that a State’s natural resources inherently belong to its citizens and hence must be administered by the State for the citizens’ benefit.55 A prominent NGO by the name of Our Children’s Trust56 has sought to adapt this doctrine to climate change litigation, arguing that the ozone layer forms part of the public trust, and hence in failing to implement concrete measures to protect it, States are violating the fundamental human rights of their people.

Within the last three years, Our Children’s Trust has instituted numerous climate change liability cases all over the United States; most notable is the on-going Juliana v United States57 case instituted in Oregon against both the State and Federal Governments, wherein the plaintiffs allege ‘that irrespective of whether any laws were violated, the defendants [are], whether through their actions and inactions, jeopardising future generations’ rights

54 PUSH Sweden, Nature & Youth Sweden, et al. v Government of Sweden (2017) Stockholm District Court.

55 Jolene Lin, ‘Climate Change And The Courts’ (2012) 32 Legal Studies.

56 ‘Our Children’s Trust’ <https://www.ourchildrenstrust.org/> accessed 18 January 2020 57 Juliana v United States 46 ELR 20072.

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Climate Change Litigation to life and liberty’.58 Beyond the United States, the PTD appears to be the central argument in numerous climate change litigation cases brought in other common law jurisdictions. In Pandey v India59 for instance, ‘the plaintiff claims that the State is bound under the PTD to protect natural resources and to take decisions based on the best available science’.60 Although prima facie, the PTD employed within the ambit of climate change litigation does show promise, it still remains to be seen whether Courts shall be receptive of its extensive application to the ozone layer.

15. Use of International Law The final characterising element of this new wave of climate change litigation expounded upon by Corsi is the use of International Law in support of a central line of argumentation. Generally speaking, individuals are not considered to be subjects of international law and are consequently prohibited from citing international law to invoke rights emanating from international treaties or custom.61 As a result, international law may not per se be utilised as the predominant ground in seeking climate change liability. Nonetheless, this has not precluded plaintiffs from incorporating international treaties and general principles of international environmental law in substantiating their main arguments.

In seeking to demonstrate the existence of international environmental obligations, plaintiffs have consistently quoted three international legal instruments in particular: the United Nations Framework Convention on Climate Change, hereinafter referred to as the ‘UNFCCC’, its Kyoto Protocol and the Paris Agreement, all of which lay out express commitment to address the threat of climate change on a global scale. Similarly, several international principles of environmental law such as those of prevention, precaution, intergenerational equity and sustainability have been raised by plaintiffs as 58 Corsi (n 29) 7.

59 Pandey (n 50).

60 Corsi (n 29) 7.

61 Noellkamper A, ‘The Duality Of Direct Effect Of International Law’ (2014) 25 European Journal of International Law

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id-dritt supporting arguments. In the on-going Ali v Federation of Pakistan62 case for instance, the latter three principles were employed to substantiate the plaintiff’s central thread of argumentation: an alleged violation of the PTD. Significantly, in one particular case, namely Thomson v Minister for Climate Change Issues63, the plaintiff (a law student) took the use of International Law a step further by founding ‘her entire claim on the alleged irrationality and illegality of New Zealand’s Nationally Determined Contribution (NDC) under the Paris Agreement’64. The success or otherwise of the action was earmarked to ‘turn the tide in the use of international law as a core element in Climate Change Litigation’65. The High Court of New Zealand delivered judgement in 2017, just after the 2017 election in New Zealand which ousted the former executive, replacing it with a government which had campaigned on the commitment to eradicate GHG emissions altogether by 2050. Despite the recent election rendering the claimant’s pleas largely mooted, the Court’s findings do inspire hope for the future of climate change litigation: It may be appropriate for domestic courts to play a role in Government decision making about climate change policy […] The courts have recognised the significance of the issue for the planet and its inhabitants and that those within the court’s jurisdiction are necessarily amongst all who are affected by inadequate efforts to respond to climate change… Remedies are fashioned to ensure appropriate action is taken while leaving the policy choices about the content of that action to the appropriate state body.

16. Conclusion Notwithstanding the success of the human rights argument in recent climate litigation, one might question the extent to which this can be considered an outright victory in the grander scheme of things. Although 62 Ali v Federation of Pakistan (2016) Supreme Court of Pakistan 63 Thomson v Minister for Climate Change Issues (2015) In the High Court of New Zealand Wellington 64 Corsi (n 29) 7 65 ibid.

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Climate Change Litigation it is quite true that human rights are inextricably linked to climate change, and thus adopting the human rights approach appears to be the logical approach, it is somewhat disconcerting that even today, few are the governments which have taken the initiative to introduce comprehensive legislative safeguards protecting the fundamental human rights of climate change victims.66 Despite the possibility of several communities losing their very livelihood as a result of the catastrophic impacts of climate change, governments have often chosen the convenient path of silence and when presented with the opportunity to re-evaluate their ways following the Paris Agreement, they have chosen to ignore it.67 Perhaps even more alarming is the reality that certain governments, perhaps most prominently the former US administration of President Trump, choose to not only turn a blind eye, but go so far as to disparage the science of climate change, treating it rather as a ‘myth’.68 Despite the existence of climate sceptics, contemporary climate science is now reaching the so-called ‘safety threshold’ of indisputability. The pressure is mounting on State leaders around the globe to implement holistic legislative frameworks, in tandem with pragmatic measures of public policy, in order to tackle the threats posed by climate change head on. Imperative to such pressure has been the perseverance of applicants in instituting climate change complaints, thereby holding States and corporate entities accountable for their shortcomings in this regard. By virtue of this article, we have sought to identify the most compelling, dynamic and effective line of argumentation which ought to be adopted based on the most recent caselaw, as well as those pitfalls endemic to this genre of litigation. In the absence of concrete State action, it might be up to this new wave of climate change litigation to pave the way for the definitive, comprehensive and far-reaching change necessary in the public policy and legislative spheres.

66 Byers, Franks and Gage (n 22) 307.

67 ‘Questions and answers on the Paris Agreement’ <https://ec.europa.eu/clima/sites/clima/files/international/negotiations/paris/docs/qa_paris_agreement_en.pdf> accessed 27 January 2020 68 Sarah Emerson, ‘The Climate Change Deniers in Congress’ <https://motherboard.vice.com/en_us/article/pg5zqg/a-guide-to-the-climate-change-deniers-in-congress> accessed 27 January 2020

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Company Law

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Donald Vella, Nicola Jaccarini The Company Recovery Procedure: an analysis of its past, present and future

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Donald Vella is a corporate and commercial law partner at Camilleri Preziosi Advocates, principally handling corporate law matters and special assignments at the firm. Donald is particularly active in corporate restructuring transactions, local and cross-border M&A transactions, corporate insolvencies and restructurings. Donald acted as lead advisor on one of the first company recovery applications in Malta, considered a landmark case in the field and which has been relied upon in subsequent company recovery applications. Donald has also advised on one of Malta’s leading cases in connection with the application of fraudulent and wrongful trading. Donald advises a diverse array of clients operating in a variety of industry sectors, ranging from banks and credit institutions to professional services firms. Donald holds a Master of Laws degree in corporate and commercial law from the University of London.

Nicola Jaccarini is a dual-qualified corporate and commercial lawyer, admitted to practice as an advocate of the Superior Courts of Malta and as a solicitor of the Senior Courts of England and Wales, and currently forms part of the corporate and finance practice group at Camilleri Preziosi Advocates. Nicola’s areas of specialisation comprise local and cross-border M&A transactions, including public mergers and takeovers and corporate restructurings; debt and equity capital markets as well as corporate governance. Nicola’s Doctor of Laws thesis, which she successfully defended in 2014, focussed on the Maltese courts’ interpretation of the company recovery procedure, following which she read for a Master of Corporate Law degree at Darwin College, University of Cambridge. Prior to joining Camilleri Preziosi Advocates, Nicola formed part of the corporate practice of Herbert Smith Freehills’ London office.

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1. Introduction: The Notion of a Corporate Rescue Culture in Malta

S

ix years after the publication of the 1982 Cork Report by the Cork Committee, a report which ‘not merely provided the most comprehensive and rational review of English company insolvency rules ever undertaken but also flagged a historic movement away from punitive towards rehabilitative objectives’,1 Sir Kenneth Cork made the following proclamation: through publication of the Cork Report, I have (…) put forward our principle that business is a national asset and, that being so, all insolvency schemes must be aimed at saving businesses.

I have been at pains to stress that when a business becomes insolvent it provides an occasion for a change of ownership from incompetent hands to people who not only have the wherewithal but also hopefully the competence, the imagination and the energy to save the business. Before the 1985 Act every insolvent business went into liquidation or receivership automatically. It was the kiss of death for them and the creator of unemployment (…) [W] ith the concept of the administrator and voluntary arrangements taking its place in Britain’s insolvency law, the chances look bright for more and more businesses being saved in the years that lie ahead (…)2 The Cork Report provided the impetus towards the creation of a legislative framework for a ‘corporate rescue culture’, which first manifested itself in the United Kingdom through the enactment of the Insolvency Act 1986.

Looking towards our local shores, it was not until 2003 that the concept of company recovery first emerged in local legislation with the introduction of the Company Recovery Procedure (‘CRP’) in Article 329B of the Companies Act (‘Act’)3 by means of Act IV of 2003. The CRP is a rescue regime founded upon the principles of the United Kingdom’s administration regime,4 the 1 Vanessa Finch, Corporate Insolvency Law: Perspectives and Principles (2nd edn, CUP 2009) 16.

2 Kenneth Cork, Cork on Cork: Sir Kenneth Cork Takes Stock (Macmillan 1988) 202-203 as cited in Finch (n 1).

3 Chapter 386 of the Laws of Malta.

4 C 57252, More Supermarkets (Hamrun) Limited vs X, Civil Court, First Hall, per Mr Justice Joseph

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Company Law ‘primary aim [of which] is to allow, if practicable, companies in financial difficulty to recover rather than to be put into liquidation.’5 Prior to the introduction of this novel procedure, the selection of Maltese insolvency regimes consisted of several types of dissolution and winding-up procedures in terms of Article 214 of the Act, and company reconstructions in the form of company compromises6 and company reconstructions or amalgamations.7 The acknowledgement that ‘ċerti nuqqasijiet fil-liġi eżistenti u (…) ċerti defiċjenzi li wasslu għall-għeluq ta’ ċerti kumpanniji (…)’8 were prevalent in the Maltese insolvency landscape, which landscape, at the time, offered solutions to Maltese companies in financial distress which were described as being ‘too little, too late’,9 instigated the Ninth Legislature to legislate towards the CRP. Since the enactment of the CRP within the Maltese corporate insolvency framework, experiences garnered from the practical implementation of the procedure have goaded the Maltese legislator to provide for a number of updates and amendments to the regime. The year 2020 saw the publication of the Companies Act (Company Reconstructions Fund) Regulations, 2020 in May 202010 and the promulgation of Act XXXI of 2020 in June 2020. In addition, by means of an amendment to Regulation 164 of the Merchant Shipping (Private Companies – Shipping Organisations) Regulations, introduced through Legal Notice 31 of 2020, the CRP is now no longer an option available to insolvent shipping companies11 or shipping companies tethering on the brink of insolvency.

Zammit McKeon, 27 September 2014; C 6533, Executive Services Limited vs X, Civil Court First Hall, per Mr Justice Joseph Zammit McKeon, 14 March 2016; C 84784, DQR Limited vs X, Civil Court Commercial Section, per Mr Justice Joseph Zammit McKeon, 9 May 2019.

5 Andrew Muscat, Principles of Maltese Company Law, vol I (2nd edn Malta University Press 2019) 47.

6 Companies Act (n 3) Articles 327 – 328.

7 ibid Article 329.

8 Honourable Leo Brincat during one of the Parliamentary Debates preceding the introduction of Act IV of 2003. Plenary session sitting number 751 of the Ninth Legislature, 5 June 2002, <www.parlament.mt/media/17709/20020605_751m_par.doc> accessed 18 July 2020. English meaning: Certain deficiencies in the current legislation which have resulted in the closure of certain companies.

9 ibid.

10 LN.192.2020.

11 Shipping companies qualifying as such in terms of art 84Z of the Merchant Shipping Act, Chapter 234 of the Laws of Malta.

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id-dritt Despite the legislative efforts to maintain an effective and relevant recovery procedure in Malta, to date, and from publicly available information, it appears that there have been less than 10 company recovery applications made to the local courts since the enactment of the CRP in 2003, of course, not all of these being successful. Until 2015, the CRP was not available to small companies as defined in Article 185 of the Act and to ‘small companies’ owing less than €465,874.68 to their creditors. However, notwithstanding the fact that the size limitation on the applicability of the CRP was removed by means of Act XXXI of 2015, which piece of legislation repealed, inter alia, Article 329B(1)(d) of the Act, to date, there have only been a further three company recovery applications. Undoubtedly, these somewhat dismal figures may hardly be deemed to be indicative of a corporate rescue culture having taken root in Malta, particularly when compared to the multitude of liquidation and winding up-procedures which have been, and are continually, implemented locally.

As the middle and longer-term effects of the COVID-19 pandemic continue to be felt across the Maltese commercial and business communities, the existence of an insolvency regime such as the CRP may prove to be a useful tool in the toolbox of Maltese insolvency practitioners and businesses alike.

However, whether this manifests itself in an increased number of company recovery applications being submitted to the local Courts or otherwise, remains to be seen.

This article seeks to provide an overview of the current legal provisions governing the CRP, together with an overview of how the CRP has been judicially applied before our local Courts since its introduction 18 years ago.

This article will also aim to shed light on whether, against the backdrop of the COVID-19 pandemic which had devastating social, health, financial and commercial effects in 2020, which effects continue to spill over into 2021, the CRP may truly be deemed to be a viable alternative for companies in troubled waters. Lastly, a spotlight will be cast on Directive (EU) 2019/1023 of the European Parliament and of the Council on preventive restructuring frameworks, on discharge of debt and disqualifications and on measures to increase the efficiency of procedures concerning restructuring, insolvency, and discharge of debt and which amends Directive 2017/1132 (‘EU Directive on Preventive Restructuring’). The authors will also focus on the potential scope for change within the CRP and the Maltese pre-insolvency framework in light of this new directive, which the Maltese legislator is required to transpose into national law by the 17 July 2021.

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Company Law

2. An overview of the legislative provisions of the Company Recovery Procedure 2.1 Article 329A Before analysing the provisions of the CRP as these emanate from Article 329B of the Act, it is useful to note that in connection with the decision to invoke the CRP and proceed down the road of recovery, in terms of Article 329A of the Act, where the directors of a company ‘become aware that the company is unable to pay its debts or is imminently likely to become unable to pay its debts’, they are obliged to ‘(…) duly convene a general meeting of the company’12 in order to establish whether the company is to be dissolved or whether the CRP should be pursued as a way forward. In keeping with the default definition of directors set out in the Act,13 non-executive and, potentially, shadow directors are captured within the remit of this article and the prescriptive timeframes set out thereunder.

Both Articles 329A and 329B refer to the onset of the company’s financial difficulties as well as a state of play which would precede such onset, this being the imminent occurrence of such financial troubles. Unlike Article 329B, Article 329A does not expressly cross-refer to the two insolvency tests set out in Article 214(5) of the Act. Given the use of the phrase ‘unable to pay its debts’ in Article 329A - itself the key operative phrase in Article 214(5) of the Act - it would all but appear that the legislator intended for the aforementioned two insolvency tests to be the prime benchmarks to be applied in order to determine whether the company in question is indeed insolvent or on the brink thereof. Unlike the tighter straightjacket which directors find themselves in with respect to the insolvent winding up and liquidation procedures, in relation to Articles 329A and 329B, the directors are at liberty to consider other factors which may be relevant to the impending state of insolvency, or otherwise, of that particular company. By way of example, the prospect of imminent funding from shareholders or third-party creditors may be a consideration which, in the directors’ view, would be pertinent to keep in mind when making this determination.

A particular feature of Article 329A, perhaps testament to the fact that, at this stage, all deliberations and occurrences remain outside of judicial 12 Companies Act (n 3) Article 329A. 13 ibid Article 2.

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id-dritt scrutiny, is the fact that this provision does not specify what constitutes awareness of the company’s inability to pay its debts on the part of the directors. While Article 329A finds application upon the directors becoming aware of the company’s financial difficulties, this in itself being an objective determination, no reference is made to any objective or subjective test which is to be applied when determining the existence of such awareness on the part of the company’s directors or otherwise.

While the success, or otherwise, of a company recovery application has not been rendered dependent on the provisions of Article 329A of the Act having been complied with in full, in Publishers Enterprises Group (P.E.G.) Limited vs X,14 the Court made specific reference to the fact that before the company recovery application was furnished to the Court, no meeting of the directors of the company was held, as is required in terms of Article 329A. Furthermore, in Soċjetà C.I. Gauci Limited vs X,15 the Court commented that the action taken by the directors as a result of the company’s insolvency occurred significantly after the lapse of the 30-day time period provided for in Article 329A.

2.2 Article 329B: The Company Recovery Procedure 2.2.1 Applying for the CRP The CRP may be applied for through an application to the Civil Court (Commercial Section) with respect to a company which is unable to pay its debts or is imminently likely to become unable to pay its debts.16 In terms of Maltese law, a company is deemed to be unable to pay its debts if it satisfies one of the two insolvency tests set out in Article 214(5) of the Act, being: (a) if a debt due by the company has remained unsatisfied in whole or in part after twenty-four weeks from the enforcement of an executive title against the company by any of the executive acts specified in [A]rticle 273 of the Code of Organi[s]ation and Civil 14 Civil Court, First Hall, per Mr Justice Joseph Zammit McKeon, 9 June 2009.

15 Civil Court, First Hall, per Mr Justice Joseph R Micallef, 9 May 2008.

16 Companies Act (n 3) Article 329B(1)(a).

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Company Law Procedure;17 or (b) if it is proved to the satisfaction of the court that the company is unable to pay its debts, account being taken also of contingent and prospective liabilities of the company.

Article 214(5) enunciates the two universally adopted insolvency tests, with the cash flow insolvency test embodied in Article 214(5)(a) and the balance sheet insolvency test embodied in Article 214(5)(b).

Unlike the dissolution and winding up regimes available to insolvent companies, the CRP may be availed of not only by insolvent companies, but also by companies which are on the brink of insolvency but which have not yet reached the point of no return. Having said that, the CRP is not to be regarded as a fallback position to the dissolution and winding up of a limited liability company, since no company recovery application may be made after the company has been dissolved voluntarily, or if a winding-up order has already been made in respect of that company.18 Three categories of applicants are permitted to submit a company recovery application: (i) the company, following an extraordinary resolution passed by its members;19 (ii) in specific cases and in connection with Article 329A of the Act, the directors of the company in question;20 and (iii) the creditors, or a class of creditors, of the company, representing more than half in value of the company’s creditors or more than half in value of the company’s creditors in that class.21 In terms of the company recovery applications made to the local Courts to date, five of these applications were made following the passing of a shareholders’ resolution of the relevant companies,22 while another three 17 Chapter 12 of the Laws of Malta.

18 Companies Act (n 3) Article 329B(1)(f).

19 ibid Article 329B(1)(b)(i).

20 ibid Article 329B(1)(b)(ii).

21 ibid Articles 329B(1)(b)(iii) and (iv).

22 These being the following company recovery applications: D.I. Limited vs X, Civil Court, First Hall, per Mr Justice Joseph R Micallef, 29 October 2007; Soċjetà C.I. Gauci Limited vs X, Civil Court, First Hall, per Mr Justice Joseph R Micallef, 9 May 2008; Sakaras Holding Limited vs X, Civil Court First Hall, per Mr Justice Joseph Zammit McKeon, 27 March 2012; Executive Services Limited (C 6533) vs X, Civil Court First Hall, per Mr Justice Joseph Zammit McKeon, 14 March

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id-dritt company recovery applications were made by the directors of the respective companies.23 In More Supermarkets (Hamrun) Limited (C 57252) vs X,24 the First Hall of the Civil Court noted that while the company recovery application had been made by the company itself, n required in terms of Article 329B(1) (b)(i), a document described by the Court as being ‘vital and crucial’. On the basis of such non-compliance with the relevant provisions of Article 329B, the Court swiftly rejected the company recovery application.

The company recovery application is to comply with the provisions set out in Article 329B(2) of the Act, and should: as far as possible, give the full facts, circumstances and reasons which led to the company’s inability or likely imminent inability to pay its debts, together with a statement by the applicants as to how the financial and economic situation of the company can be improved in the interests of its creditors, employees and of the company itself as a viable going concern.25 As with any Court application, the initial application is the applicant’s prime opportunity to convince the Court to accede to the requests being made therein, and, accordingly, persons seeking to apply for the CRP should strive to ensure that any recovery plans or projections drawn up with respect to the company and included in the company recovery application are not only ‘truthful and realistic, but also credible and achievable’.26 In fact, in rejecting the company recovery application in Sakaras Holding Limited vs X,27 the Court remarked that the recovery plan submitted as part of the 2016; DQR Limited (C 84784) vs X, Civil Court Commercial Section, per Mr Justice Joseph Zammit McKeon, 9 May 2019.

23 These being the following company recovery applications: Galea Joseph et vs X, Court of Magistrates, Gozo, Superior Jurisdiction (General), per Magistrate Dr Paul Coppini, 28 April 2017; Publishers Enterprises Group (P.E.G.) Limited vs X, Civil Court, First Hall, per Mr Justice Joseph Zammit McKeon, 9 June 2009; the decrees handed down by the Court of Magistrates on 10 June 2016 and 20 June 2016 with respect to All Seasons Holiday Limited as referred to in High Rise Company Limited vs All Seasons Holidays Limited, Small Claims Tribunal, per Dr Michela Spiteri LLD, 27 September 2019.

24 Civil Court, First Hall, per Mr Justice Joseph Zammit McKeon, 27 September 2014.

25 Companies Act (n 3) Article 329B(2)(a).

26 Nicola Jaccarini, ‘An Appraisal of the Maltese Courts’ Interpretation of the Company Recovery Procedure’ (Doctor of Laws thesis, University of Malta 2014) 38.

27 Sakaras Holding Limited vs X, Civil Court First Hall, per Mr Justice Joseph Zammit McKeon, 27 March 2012.

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Company Law company recovery application was riddled with uncertainty and lacked credibility that it could truly goad the company back to viability. The Court was concerned with the fact that the recovery plan and the company recovery application were reactive, as opposed to proactive measures, and were a desperate attempt by the company’s directors to delay, as much as possible, the total and inevitable collapse of the company.28 Critically, the Court noted that the primary aim of the CRP is, in fact, to salvage a company which, notwithstanding its debts and financial difficulties, may realistically be rehabilitated to a position of viability and profitability.29 Should a company recovery application be made and acceded to by the Court, the Court would then proceed to appoint a special controller to take over, manage and administer the business of the company for a specific period. Such period shall, in the first instance, not exceed four months, and is extendable by the Court only in certain cases, and ‘upon good cause being shown’ by further periods of four months each, provided that the aggregate additional periods do not exceed a further eight months.30 Interestingly, the legislator did not prescribe what equates to a ‘good cause’ in this respect but allowed a certain degree of leeway. Naturally, this would appear to be the most sensible approach given the innate idiosyncrasies and particularities which may subsist between one company undergoing the CRP and another.

2.2.2 Issuance of a company recovery order Upon presentation of the company recovery application, together with all the supporting documents that are required, the Court may either dismiss the application, or else issue a company recovery order and place the company under the CRP.31 Such a decision shall be taken within 40 working days from the filing of the company recovery application,32 this a relatively short timeframe especially in light of the typical length of Court proceedings in Malta. It was noted by the Court that this tight timeframe is buttressed by 28 ibid 21.

29 ibid 23. For further detail on the Court’s analysis of the various company recovery applications made between 2003 and May 2014, please refer to Jaccarini (n 26).

30 Companies Act (n 3) Article 329B(1)(d).

31 ibid Article 329B(3)(a).

32 ibid Article 329B(3)(e). Previously, this timeframe was 20 working days.

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id-dritt the detailed information and documentary requirements which a company recovery application is to contain in order to ensure that the Court has all it requires at its disposal, so as to make such a decision within this narrow time period.33 In connection with the issuance of a company recovery order, Article 329B(3)(b) is prescriptive in that it permits the making of a company recovery order only: (i)

if the Court is satisfied that the company is, or is imminently likely to become unable to pay its debts as set out in terms of [A]rticle 214(5)34 and:

(ii)

if it considers that the making of the order would be likely to achieve one of the following purposes: (a) the survival as the company as a viable going concern in part or in whole; or (b) the sanctioning of a compromise or arrangement between the company and any of its creditors or members.35

In making a company recovery order, the Court is, in turn, obliged to take into consideration, amongst others, the best interests of the company’s creditors and the different classes thereof, of the company and its shareholders, and ‘the possibility of safeguarding employment as appears to be reasonably and financially possible in the circumstances’.36 In connection with the reference to ‘the sanctioning of a compromise or arrangement between the company and any of its creditors or members’ in Article 329B(3)(b)(ii) of the Act, the legislator cross-referred to the compromises or arrangements, which may be Court-driven or extra-judicial, which a company which is insolvent or on the brink thereof may reach with its creditors in terms of Articles 327 to 329 of the Act. While an analysis of such compromises or arrangements with creditors is outside the scope of 33 DQR Limited (C 84784) vs X, Civil Court Commercial Section, per Mr Justice Joseph Zammit McKeon, 9 May 2019.

34 Companies Act (n 3) Article 329B(3)(b)(i).

35 ibid Article 329B(3)(b)(ii).

36 ibid Article 329B(3)(c)(i).

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Company Law this article, these procedures governing the reconstruction of companies in financial distress may be especially relevant in the context of the new EU Directive on Preventive Restructuring,37 especially insofar as the cross-class cram-down advocated by the EU Directive on Preventive Restructuring is concerned,38 given that it would appear that a compromise or arrangement sanctioned by the Court in terms of Article 327(1)(a) of the Act is currently the only mechanism available under Maltese law today which embodies the features of a cross-class cram-down.

The two criteria set out in Article 329B(3)(b) are cumulative, narrowing the scope for a successful company recovery application to cases where the company in financial distress is not only insolvent or tethering on the brink of insolvency, but where there is also the likelihood for the company recovery order to achieve one of the above-mentioned purposes. Convincing the Court that the conditions of Article 329B(3)(b) are likely to be satisfied would, undoubtedly, need to be amplified clearly and convincingly in the company recovery application, this being the applicant’s prime, and perhaps only, chance of saving the company from an otherwise certain death.

2.2.3 Moratorium At the heart of the CRP is the Court-ordered moratorium encapsulated in Article 329B(4)(ii) of the Act, which moratorium is rendered effective ‘[u]pon the submission of an application and unless it is dismissed, or during the period during which the [CRP] is in force’.39 Companies undergoing a Courtordered dissolution and winding-up procedure are able to benefit from a similar, yet less extensive, moratorium,40 while companies which are being 37 European Parliament and Council of the European Union Directive 2019/1023 of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) [2019] OJ L 172/18.

38 ibid Article 11.

39 Companies Act (n 3) Article 329B(4)(ii). This contrasts with, for example, the moratorium available to companies incorporated in England and Wales undergoing an administration process, where two types of moratoria are generally available: a moratorium which is applicable during the administration process itself and an interim moratorium applicable pending the occurrence of certain events. Please see Insolvency Act, 1986 Sch B1 paras 42 – 44.

40 Companies Act (n 3) Articles 220-222.

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id-dritt voluntarily wound up are afforded no such liberty.41 The suspensive elements of the aforementioned moratorium are farreaching and serve to provide the troubled company with breathing space - shielding it from an array of judicial and asset-seizing claims by creditors, while permitting the entity to continue, as much as possible, with its business and trading activities. Fundamentally, the benefits of the CRP moratorium are inapplicable with respect to ‘any new financing given to the company for the purpose of implementing a recovery plan’,42 this excluding ‘financing, debts or obligations which already existed at the time of the recovery order, even if such financing, debts or obligations are restructuring in any manner in order to be included with any financing obtained or to be obtained after the recover order.’43

2.2.4 The Special Controller The role occupied by the special controller assumes prime importance within the framework and functions of the CRP. When issuing a company recovery order, the Court is to appoint as special controller44 an individual: from the list of individuals eligible to occupy the office of special controller held by the [o]fficial [r]eceiver, regard being had to the nature of the company to be restructured and the special controller’s experience and expertise in the management of business enterprises. The Court shall ascertain that there is no conflict of interest in relation to his appointment.45 The eligibility criteria for the appointment of a special controller, which embody a somewhat broader and business-oriented approach, contrast with the somewhat more clinical and academic criteria in connection with who may be appointed to act as liquidator of a company.46 Interestingly, neither Article 41 Jaccarini (n 26) 40.

42 Companies Act (n 3) Article 329B(4)(i).

43 ibid.

44 ibid Article 329B(5)(a).

45 ibid Article 329B(5)(b), as amended in June 2020 by means of Act XXXI of 2020.

46 ibid art 305. Having said that, in terms of Regulation 8 of the Companies Act (Company Re-

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Company Law 329B(5) of the Act nor the Companies Act (Company Reconstructions Fund) Regulations 202047 make any reference to the prohibition on any previous director, secretary, or other appointees of the company from occupying the role of special controller. One may argue that, in any case, any such previous appointment is likely to render that individual conflicted from holding the office of special controller and therefore, ineligible for appointment in terms of Article 329B(5)(b) of the Act. However, for one reason or another, the legislator opted not to cater for this expressly in the context of the CRP. The powers and duties of the special controller are varied, and generally include the displacement of the directors and the officers of the company in connection with the management of the business and operations of the company and their duties and powers in relation to the company.48 While adopting a primarily pro-creditor and director-displacing stance, the Maltese legislator appears to have drawn on elements of the US debtor-in-possession approach, with the possibility of, in limited circumstances, the company, its directors or officers retaining some or all of the powers previously conferred on them. Any such retention is, however, subject to the consent of the special controller.49 In certain instances, and upon the special controller’s request, the Court may also extend the remit of the appointment, powers and functions of the special controller to any other company forming part of the same group50 as that of the company undergoing the CRP.51 It is unclear whether the extension of such remit would result in that particular group company also being placed under the CRP, with the provisions of Article 329B of the Act becoming applicable in relation thereto. If that is the case, then this also begs the question as to why the legislator limited itself to requiring the Court to, before acceding to such request, ‘in so far as possible (…) hear[ing] the views of the directors, or any of them, of such group company, as it may deem appropriate’. If the effect of the accession to such a request entails the invocation of the CRP with respect to that group company, then, given that the creditors of a company are permitted to submit a company recovery constructions Fund) Regulations, 2020, L.N.192.2020, a list of matters which would disqualify a person from acting as a special controller has been introduced.

47 (n 10).

48 Companies Act (n 3) Article 329B(6).

49 ibid Article 329B(6).

50 As this term is defined in ibid Article 2(1).

51 ibid Article 329B(6)(i).

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id-dritt application,52 and when deciding whether to accede to such an application the Court is obliged to consider, inter alia, the creditors’ best interests,53 then surely the views of that group company’s creditors should also be considered, at least to some extent. What is certain, however, is that further clarity on the intended effects of this particular provision would be welcome, including, for example, whether such a provision would apply with respect to a group company which has been registered under the laws of a foreign jurisdiction. Is it the intention of the legislator for the remit of both the CRP and the duly appointed special controller to be extended to cover such foreign group company?

2.2.5 Termination and completion of the CRP During the period of time where the CRP is ongoing, this may be terminated, upon the application to the Court by the special controller, in order for the company to be subjected to a Court-ordered winding up54 or in order for the company to resume its ordinary trading and business activities and settle all its dues.55 In the first case, this would typically take place where the special controller deems it futile for the company to continue with the CRP, this determination requiring substantiation with detailed and comprehensive reasons.56 In the second case, this would occur should the special controller determine that the company’s affairs have improved to the extent that it is no longer insolvent or on the brink of insolvency.57 In connection with the latter, the Court application may also be made by the company’s shareholders or directors, with the Court being obliged to consult the special controller

52 ibid Article 329B(1)(b)(iii)(iv) 53 ibid Article 329B(3)(c)(i).

54 ibid Article 329B(12)(a). A Court-winding up shall also be triggered in the event that the Court terminates the CRP at any point in time while the procedure is ongoing, on the premise that there is no reasonable likelihood that the company will continue as a viable going concern and will regularly pay its debts going forward, as per Companies Act (n 3) Article 329B(14).

55 ibid Article 329B(12)(b).

56 ibid Article 329B(12)(a).

57 ibid Article 329B(12)(b).

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Company Law before passing any order.58 Upon the lapse of the time set for his appointment, the special controller is to submit a final, written report to the Court detailing, amongst others, his views ‘as to whether or not the company has a reasonable prospect of continuing as a viable going concern in whole or in part, and whether the company will be in a position to pay its debts regularly in the future’.59 In the event that the special controller’s written report indicates a reasonable prospect for the company in question to ‘[continue] as a viable going concern, or in part, regard being had to the interests of the creditors, the company and its members, and the particular classes of members and creditors’,60 a ‘precise and detailed recovery plan which shall contain [amongst others] all the proposals required to enable the company to continue as a viable going concern, with such proposals required to enable the company to continue as a viable going concern’61 shall be annexed to the aforementioned written report.62 The special controller’s proposed recovery plan may be accepted and approved in whole or in part by the Court, or otherwise rejected. Once approved, the recovery plan shall bind all interested parties.63 In terms of Article 329B(12)(h), where the recovery plan has been judicially accepted, dissenting creditors are afforded, in certain cases, a right to appeal to the Court of Appeal sitting in its Inferior Jurisdiction. In such case, the remedy which may be granted by the Court is limited to compensation for any loss which may have been incurred by the dissenting creditor as a result of the CRP. Notwithstanding such appeal, the implementation of the recovery plan shall not be suspended – seemingly, this is a means by the legislator to avoid any frivolous or vexatious appeals by potentially disgruntled creditors.

58 ibid Article 329B(12)(c).

59 ibid Article 329B(12)(d).

60 ibid Article 329B(12)(e).

61 ibid.

62 This recovery plan would also be required in the event that the special controller submits an application to the Court in terms of Companies Act (n 3) Article 329B(12)(b).

63 ibid Article 329B(12)(g).

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3. An overview of the judicial invocation of Article 329B: selected key issues The CRP has been a pre-insolvency and insolvency regime available to Maltese limited liability companies since 2003. Although businesses in financially troubled waters have had this avenue available to them for the past 18 years, to date, there appear to have been only eight applications submitted to the local Courts in terms of Article 329B of the Act, which is a stark contrast with the multitude of Court-ordered winding up proceedings which take place on a yearly basis.

Notwithstanding such a lack of judicial implementations of CRP, the limited number of Court proceedings concerning Article 329B of the Act remain useful in shedding light on practical considerations to be garnered when interpreting this lengthy legal provision.

3.1 Rejection of a company recovery application While the legislator has specified what is to take place in the event that, at any time during which the CRP is ongoing, the Court or the special controller deems it fit that this should be brought to an end,64 no such indication has been forthcoming in the event that the Court, when faced with a company recovery application, dismisses this in accordance with Article 329B(3).

The authors contend that in order to avoid worsening an already bleak and dire situation of both a financially-troubled entity, as well as all relevant stakeholders, provision should be made in Article 329B of the Act for a fallback position in the event that the Court dismisses a company recovery application, with such position taking effect immediately upon the handing down of the Court’s judgment in this respect.

A company in financially troubled waters is faced with, broadly speaking, ‘three paths (…): dissolution and winding up, reconstruction or recovery.’65 In the event that the Court deems that the path of recovery and rescue would 64 This being the commencement of a Court-ordered winding up as per Companies Act (n 3) Articles 329B(12)(a) and 329B(14).

65 Jaccarini (n 26) 23.

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Company Law be fruitless and simply lead to a prolonged death, then, in rejecting the company recovery application, the Court should be guided in prescribing the other path which that particular company should take, which path should be pursued immediately upon the rejection of the company recovery application. The authors maintain that in so doing, the incurring of any further costs to creditors, employees, and other stakeholders, which, in any event, would be likely to remain unpaid at least to some extent, would be minimised as much as possible, and the orderly winding-down of the company in question may commence as soon as possible. This is all the more so given that the overarching aim of the CRP ‘is not intended to mask effective insolvency or to postpone the inevitable crash.’66

3.2 Bringing the company recovery procedure to a timely end In regulating the CRP, the legislator sought to instil the rationale that the CRP is not to be considered as a process which is to continue for a protracted period of time, but rather, that the appointment of the special controller is to be for a limited period, which original period of appointment is to be extended in select circumstances, and, likewise, for a further limited period of time.67 Given this cap on the period of appointment of the special controller, the authors contend that the intention of the legislator was for the CRP to be implemented within this condensed timeframe, and upon the lapse of such time period, the company in question would be restored and rehabilitated to its normal trading and business activities, or else proceed to be wound up and liquidated by the Court.

In Galea Joseph et vs X,68 it appears that the CRP was extended for a further 12-month period until 12 January 2008. It was only through a decree handed down on 28 April 2017 that the Court removed the company from the realm of the CRP, on the basis that the statutory provision allowed in terms of law for the CRP had long since expired, although it is unclear in terms of which provision of Article 329B of the Act such an order was made. In terms of the public records of the company at the Malta Business Registry, Value 66 Muscat (n 5) 47.

67 Please see Companies Act (n 3) Article 329B(1)(d).

68 Galea Joseph et vs X, Court of Magistrates, Gozo, Superior Jurisdiction (General), per Magistrate Dr Paul Coppini, 28 April 2017.

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id-dritt Foods Co. Ltd69 remains in existence and not subject to any other insolvency procedure. It would therefore appear that the company has been rehabilitated to trade and has resumed its normal business operations. Having said that, the aforementioned Court decree makes no reference to the preparation or submission of any recovery plan by the special controller, and therefore it is also unclear as to on what basis the company has indeed recovered. It is also interesting to note that the Court ordered the notification of such decree to the official receiver, as opposed to the Registrar of Companies as required in terms of Article 329B(13) of the Act.

3.3 Rejection of a proposed company recovery plan As set out in Article 329B(12)(g) of the Act, the Court may either reject the special controller’s recovery plan or accept this fully or partially, whilst also potentially requiring amendments thereto.

To date, it does not appear that the Court has rejected a proposed recovery plan which has been submitted by a special controller in terms of the CRP. However, it is interesting to note that the law does not specify what is to take place in the event that the Court were to reject such a plan – would the company proceed with a Court-ordered winding up; would the special controller be obliged to amend the company recovery plan in line with the Court’s suggestions, or would the special controller be obliged to submit a fresh recovery plan? Given that the Court would typically rely on the special controller’s judgment and experience with the company in question, it is doubtful as to how likely it would be for the Court to reject, outright, a proposed recovery plan unless, of course, it had serious reservations with the plan itself. Notwithstanding this, clarity from the legislator on this point would be welcome.

3.4 Filings with the Registrar of Companies As mentioned above, Article 329B(13) of the Act requires the submission of copies of a number of documents relating to the CRP to the Registrar of 69 Company registration number C 21882.

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Company Law Companies for registration at the Malta Business Registry, with the intention behind such registration requirements seemingly being to ensure that all interested third parties are aware of the recovery proceedings taking place, or which would have taken place, with respect to a particular company.

It appears that for some reason or another, the provisions of this Article 329B(13) of the Act do not seem to have been applied consistently, with the public records maintained by the Malta Business Registry of a number of companies which have been placed under the CRP not indicating the existence of any such documentation or proceedings. Accordingly, from a review of these records alone, a third party would not be made aware of the fact that, for example, a company recovery order has been handed down in connection with that particular company.

While the authors appreciate the significant documentary workload of the Registrar of Courts, the Registrar of Companies and the Malta Business Registry, faithful and consistent compliance with the provisions of the law in this respect would be helpful to all interested parties, including any potential creditors or investors concerned with a particular company, making reference to the public records of that company held at the Malta Business Registry.

4. An overview of the latest legislative changes to the company recovery procedure70 During the year 2020, the Maltese legislator enacted a series of piecemeal amendments and updates to the CRP, with not all of these being amendments to Article 329B itself. Firstly, on the 21 February 2020, the Merchant Shipping (Shipping Organisations – Private Companies) (Amendment) Regulations, 2020 were published by means of Legal Notice 31 of 2020. By virtue of this set of regulations, Regulation 164 of the Merchant Shipping (Shipping Organisations – Private Companies) Regulations71 (‘Regulations’) was amended with the effect that the provisions of Article 329B of the Act no longer apply, mutatis mutandis, to these Regulations. Accordingly, companies which are subject to the provisions of the Regulations may no longer be subject to, and avail themselves of, the CRP, albeit that between 2003 and 70 For an overview of the amendments introduced to the CRP as a result of the Companies (Amendment) Act, 2017 (Act XI of 2017), please see Muscat (n 5) 77 – 79.

71 Subsidiary Legislation 234.42.

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id-dritt February 2020, it appears that no shipping company sought to invoke the CRP. While the rationale behind this legislative amendment is not entirely clear, the authors are of the view that the reason underpinning this change is likely to relate to the nature of the assets held by shipping companies.

Shipping companies typically have one prime asset, this being a ship or maritime vessel, which ship or vessel would typically be secured in favour of a mortgagee. Given the resulting implications of the successful invocation of the CRP, which includes the commencement of a statutory moratorium and the continuation of the company’s business and trading activities,72 it would appear that in removing this insolvency regime from the realm of shipping companies, the legislator has sought to protect the interests of mortgagees of shipping companies, and safeguard the niche Maltese maritime industry in general.

On the 12 May 2020, Legal Notice 192 of 2020 introduced the Companies Act (Company Reconstructions Fund) Regulations, 2020, the aim of which was to ‘create and regulate the administration of a fund to facilitate company recovery procedures instituted in accordance with article 329B of the [Act].’ 73 In terms of these regulations, such fund is to receive funding of a maximum of €500,000 on an annual basis from the Malta Business Registry.

Such funding is to be used, amongst others, to settle the remuneration and expenses due to a special controller appointed to occupy such post, which remuneration and expenses are subject to particular thresholds as set out in Regulation 9.74 The creation of such a fund is a welcome addition to the legislative framework governing the CRP, given that it affords special controllers an element of certainty in the prospect of them receiving remuneration for their efforts.

This particular set of regulations also obliged the official receiver, as appointed in terms of Article 225 of the Act,75 to ‘keep an updated list of persons admitted (…) to act as [s]pecial [c]ontrollers, which shall be made 72 In the case of shipping companies, this is likely to involve the chartering of the vessel to third parties.

73 Companies Act (Company Reconstructions Fund) Regulations, 2020 (n 10) Regulation 1(2).

74 Companies Act (Company Reconstructions Fund) Regulations, 2020 (n 10).

75 Companies Act (n 3).

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Company Law available to the Registrar of Courts.’76 On this note, any person satisfying the requirements to act as a special controller, and likewise, not being disqualified to occupy such position,77 is to apply for admission to such list in accordance with the prescribed requirements.78 In this regard, on the 13 May 2020, the official receiver announced that he was receiving applications from persons interested in acting as special controllers to companies undergoing the CRP.79 It is hoped that through this application process, a repository of business-minded and commercially-oriented persons, able and willing to discharge the functions and duties associated with this role would be created, further rendering the CRP more accessible to companies in financial distress.

Lastly, on the 23 June 2020, Act XXXI of 2020 was published in order to introduce several amendments to various provisions of the Act, including Article 329B. The main changes introduced to Article 329B were to Article 329B(5), and serve, principally, to tie up the loose ends which were prevalent following the introduction of Legal Notice 192 of 2020. As a result of Act XXXI of 2020, Article 329B(5) has been amended to refer to the remuneration of the special controller from the fund set up in terms of Legal Notice 192 of 2020, with it now being clarified that such ‘expense shall be recoverable from the company’.80 From the special controller’s perspective, such recovery is a matter for the official receiver to handle, with the special controller himself being remunerated directly from the fund itself. Furthermore, Article 329B(5) (b) was also amended to cross-refer to the list of special controllers to be maintained by the official receiver in terms of Legal Notice 192 of 2020.81

76 Companies Act (Company Reconstructions Fund) Regulations, 2020 (n 10) Regulation 6.

77 ibid Regulation 8.

78 ibid Regulation 7.

79 Malta Business Registry, ‘Company Reconstructions Company Recovery Procedure’ <https://registry.mbr.mt/static-resources/documents/docs/AppointmentofSpecialControllers.pdf> accessed 17 August 2020.

80 Companies Act (n 3) Article 329B(5)(a)(iii).

81 Companies Act (Company Reconstructions Fund) Regulations, 2020 (n 10).

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5. A spotlight on the EU Directive on Preventive Restructuring Looking towards the continent, during the second half of 2019, the Council of the European Union formally adopted the EU Directive on Preventive Restructuring,82 which is a minimum harmonisation directive aimed at, amongst others, ‘reduc[ing] the most significant barriers to the free flow of capital stemming from differences in member states’ restructuring and insolvency frameworks, and [enhancing] the rescue culture in the [European Union] based on the principle of second chance.’83 Malta is obliged to transpose the bulk of the provisions of the EU Directive on Preventive Restructuring into its national law by the 17 July 2021.84 In terms of Article 1(a) of the EU Directive on Preventive Restructuring, this piece of legislation seeks to regulate ‘preventive restructuring frameworks (…) for debtors in financial difficulties when there is a likelihood of insolvency, with a view of preventing the insolvency and ensuring the viability of the debtor.’85 Currently, the CRP is the only fully-fledged pre-insolvency regime available to limited liability companies registered in Malta. It is therefore expected that, in transposing the provisions of the EU Directive on Preventive Restructuring, the CRP will undergo a significant facelift and overhaul. While it is not the aim for the authors to provide a comprehensive analysis of the EU Directive on Preventive Restructuring, an overview of a selection of the gaps prevalent in the local CRP regime86 which are likely to be filled by means of the transposition of this new piece of legislation may prove helpful in anticipating some of the potential future changes to Article 329B of the Act. The EU Directive on Preventive Restructuring emphasises the need for 82 EU Directive on Preventive Restructuring (n 37).

83 Council of the European Union, ‘Giving Entrepreneurs a second chance: new rules on business insolvency adopted (6 June 2019) <www.consilium.europa.eu/en/press/press-releases/2019/06/06/giving-entrepreneurs-a-second-chance-new-rules-on-business-insolvency-adopted/> accessed 28 July 2020.

84 Please see art 34 of the EU Directive on Preventive Restructuring (n 37) for derogations to this general timeframe.

85 EU Directive on Preventive Restructuring (n 37) Article 1(a).

86 The authors anticipate that the EU Directive on Preventive Restructuring (n 37) is likely to require changes to other Maltese insolvency regimes, including those relating to compromises or arrangements with creditors as set out in Articles 327 – 329 of the Companies Act (n 3); discharge of debt and disqualifications as set out in Articles 477 – 546 of the Commercial Code, Chapter 13 of the Laws of Malta and Articles 214 – 326 of the Companies Act (n 3) relating to the dissolution and consequential winding-up of companies.

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Company Law preventive restructuring regimes to adopt the ‘debtor in possession’ approach, whether this is on a full or partial basis. As set out above, Article 329B(6) of the Act enunciates a hybrid approach to this stance. This, however, appears to fall short of the principles articulated in Article 5(1) of the EU Directive on Preventive Restructuring which requires that ‘debtors accessing preventive restructuring procedures remain totally, or at least partially, in control of their assets and the day-to-day operation of their business’. Additionally, Article 5(3) requires that the appointed restructuring practitioner assists the debtor and its creditors in the negotiation and drafting of a preventive restructuring plan. In the context of Article 329B of the Act, it is the special controller who assumes the prime role in drafting a recovery plan, as opposed to the seemingly secondary role alluded to by the EU Directive on Preventive Restructuring.

The EU Directive on Preventive Restructuring also makes reference to the possibility of there existing extra-judicial preventive restructuring regimes, alongside Court-driven regimes. The CRP is a predominantly Court-driven regime, with the Court retaining overarching control and discretion during all phases of the implementation of the CRP. At present, the Act does not differentiate between recovery plans which require Court approval and those which do not – Court approval is required in all cases in order for the wheels of a recovery plan to be put into motion.

In connection with the moratorium which would apply in accordance with the provisions of Article 329B(4)(ii) of the Act, the effects of such a suspensive regime do not appear to be as all-encompassing and far-reaching as the provisions relating to the consequences of the stay of individual enforcement actions enunciated in Article 7 of the EU Directive on Preventive Restructuring, in particular insofar as essential executory contracts are concerned.

Likewise, the Maltese legislator opted to give the special controller a somewhat freer hand in determining what the recovery plan is to detail and set out, in contrast with the prescriptive requirements set out in Article 8 of the EU Directive on Preventive Restructuring. Adopting the more prescriptive approach of the European legislators, without a doubt, helps to ensure consistency and harmonisation across the board, while bestowing a degree of certainty amongst restructuring practitioners as to what the recovery plan must contain. Having said that, the Maltese legislator’s current approach of leaving this determination in the hands of the special controller is particularly 77

id-dritt helpful, given the innate differences between the recovery and rescue of one company and another.

The EU Directive on Preventive Restructuring also emphasises the need for pre-insolvency regimes to be implemented and concluded with a certain degree of efficiency. Furthermore, it stipulates set timeframes for the applicability of the stay of individual enforcement actions.87 While in principle, the CRP would appear to adopt the same rationale, in particular, in light of the 40-day timeframe by when the Court is to hand down its decree as to whether to accede to or reject a company recovery application as well as the period of appointment of the special controller, from our local experience of company recovery applications to date, it is evident that ensuring adherence to these timeframes may not be as straightforward.

Cross-class cram-downs are also referred to in the EU Directive on Preventive Restructuring in connection with the sanctioning of restructuring plans which do not obtain the required approvals from affected parties.88 As mentioned above, the current Maltese insolvency and pre-insolvency legislative framework indicates that it is only certain compromises or arrangements with creditors which appear to feature the provisions of a cross-class cram-down.89 Accordingly, it remains to be seen whether the Maltese legislator, in transposing this new piece of EU legislation, will implement any changes to the current legislative provisions in this regard and if so, what the knock-on repercussions on the CRP will be – this domino effect resulting given the nexus between compromises and arrangements with creditors and the CRP as a result of Article 329B(3)(b)(ii) of the Act.

6. Concluding remarks In one of the debates before the House of Lords prior to the enactment of the Enterprise Act 2002, a piece of legislation which introduced significant changes to the UK administration regime, Lord MacIntosh of Haringey proclaimed that the UK legislator ‘[wanted] to put company rescue at the heart of insolvency procedures because [it wanted] to save companies which have a 87 EU Directive on Preventive Restructuring (n 37) Articles 6(6) – (8).

88 ibid Article 11.

89 Specifically, those compromises or arrangements with creditors taking place in terms of Article 327(1)(a) of the Companies Act (n 3).

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Company Law decent chance of survival so that they are not driven to the wall unnecessarily.’90 The experience over the past 18 years of having the CRP as an option available to financially troubled companies, as an alternative to dissolution and liquidation, has perhaps not yielded the results initially hoped for. The number of Court-ordered closures of limited liability companies far outweighs the number of company recovery applications made so far. Granted, the CRP remains a special regime, an exception to the norm which, in the context of insolvent companies, is dissolution and winding-up. However, the numbers remain starkly contrasted. The making available of the CRP to all types of limited liability companies, including all types of small companies, has not resulted in any significant increase in the number of company recovery applications made to date.

The onset of the COVID-19 pandemic during 2020 and its continuation into 2021 has resulted, and is likely to continue resulting, in a number of companies experiencing temporary financial difficulties as they navigate through the troubled waters brought about as a result of the health, social and economic upheavals caused by this pandemic. In turn, a selection of these companies may seek to invoke the CRP as an alternative to their dissolution and winding-up, particularly if it can be ascertained that there is the likelihood of them weathering this storm. For these types of companies, the CRP may prove to be a truly viable alternative to an otherwise certain death.91 What remains certain, however, is that it is likely that the CRP as it currently exists today is to undergo a number of changes over the next six months or so, primarily as a result of the transposition requirements of the EU Directive on Preventive Restructuring yet also as a result of lessons learnt from the practical implementation of the CRP to date. Although July 2021 has been set as the deadline for transposition of this piece of legislation, the effects of the onset of the COVID-19 pandemic may spur legislators to consider implementing the various restructuring frameworks advocated by the EU 90 HL Deb 2 July 2002, vol 637 col 188 by Lord MacIntosh of Haringey as cited in John Armour and Rizwaan Jameel Mokal, ‘Reforming the Governance of Corporate Rescue: The Enterprise Act 2002’ (2005) Lloyd’s Maritime and Commercial Law Quarterly 28 5, <https://api.parliament. uk/historic-hansard/lords/2002/jul/02/enterprise-bill#column_188> accessed 28 July 2020.

91 While outside the scope of this article, the authors note that the Maltese legislator has, inter alia, suspended the rights of creditors to file for the dissolution and consequential winding up of a company in terms of Article 214 of the Act by means of the Companies Act (Suspension of Filing for Dissolution and Winding Up) Regulations, 2020, L.N.373.2020.

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id-dritt Directive on Preventive Restructuring sooner rather than later.92 Only time will tell if the Maltese legislator opts to retain the CRP as the standalone pre-insolvency regime or whether it will introduce alternative pre-insolvency regimes. Likewise, only time will tell what the reaction of the Maltese legal and business communities will be to the route chosen by the Maltese legislator. It is hoped that whatever the outcome, Malta will continue to foster a corporate rescue culture within its legislative, judicial, and commercial playing fields. On this final point, the authors concur with the sentiment of INSOL Europe in connection with the potentially far-reaching effect which the implementation of the EU Directive on Preventive Restructuring may have on the continued promotion of a corporate rescue culture across the Union: Implemented well, the [EU Directive on Preventive Restructuring] might bring a lot of good to the Member States’ credit markets and economies in general, facilitating early restructurings of financially distressed businesses and averting the social costs which are often incurred when financial distress is allowed to develop into full-blown insolvency that must be dealt inside formal court procedures. If implemented poorly, the [EU Directive on Preventive Restructuring] might stifle the market process of reallocation of resources used by failing businesses to more productive uses or even make credit less available (or more costly) to certain types of business debtors.93 While the deadline for transposition is always drawing nearer, the true effects of transposition of this new piece of legislation within the Maltese legislative landscape may, indeed, begin to be felt far beyond July 2021.

92 Tomáš Richter and Adrian Thery, ‘INSOL Europe Guidance Note on the Implementation of Preventive Restructuring Frameworks under EU Directive 2019/1023 – Claims, Classes, Voting, Confirmation and the Cross-Class Cram-Down’ (INSOL Europe, 2020) 5 - 6 <https://papers.ssrn. com/sol3/papers.cfm?abstract_id=3575511> accessed 3 August 2020.

93 ibid 7.

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Competition Law

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Gayle Kimberley, Nicole Sciberras Debono, Nina Fauser, JP Fabri, Stephanie Fabri Does Competition Law fit the Digital Bill?

Dr Gayle Kimberley has worked in various fields of economic law, both in the private and public sector as well as in international organisations. Her main areas of focus are EU institutional and economic law, Competition / Antitrust Regulation, Corporate & Mergers and Acquisitions (M&A), iGaming Law, Intellectual Property and Technology, Media & Telecommunications (TMT). She is experienced in litigation before the EU Courts and international arbitrations. Gayle spent 9 years working in Brussels. She has advised EU Member States’ and local government and was also appointed expert for the European Economic and Social Committee in the drafting of their Opinion on Online Gaming. She also headed the EU and International Affairs department of the Malta Gaming Authority. Gayle graduated with a Bachelor of Arts and Doctor of Laws from the University of Malta and then pursued a Master of Laws in EU law at the College of Europe, Bruges.

Dr Nicole Sciberras Debono graduated from the University of Malta with a Master of Advocacy in 2019. Nicole also spent a semester furthering her studies at the University of Ferrara, Italy. During her time at university, she formed part of one of the largest European Law student organisations, ELSA, and was the Director for Social Policy and Legal Publications with the ELSA Malta national board for the term 2016/2017. She joined GVZH Advocates in 2019 and her main focus areas are iGaming, TMT, Intellectual Property and Competition Law. She also assists in various Litigation and Arbitration matters.

Nina Fauser is a legal trainee at GVZH Advocates, focusing on Competition Law, Commercial Disputes and Real Estate. She is currently reading for her Master of Advocacy with the University of Malta. In 2019, Nina participated in the Erasmus exchange programme, where she spent a semester furthering her studies in Brussels, Belgium. During her time at University, Nina was involved in one of the largest European Law student organisations, ELSA, where she held the position of President of ELSA Malta for the term 2018/2019.

JP Fabri is a Founding Partner at Seed. An economist by profession, he has extensive experience in applying economics in the private and public sector. He has advised nine international governments on building economic resilience. He is a visiting assistant lecturer at the University of Malta.

Dr Stephanie Fabri is an economist and lecturer at the University of Malta.

She read for her Ph.D. at the University of Warwick after having worked as an economic consultant in the private sector as well as within the public sector.

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1. Introduction to the Concepts of Competition Law and the Digital Economy

C

ompetition law deals with the regulation of anti-competitive conduct by companies within a market. Ultimately, the aim of Competition law is to maximise consumer welfare and to protect the process of competition which exists in any given economy. It also aims at protecting small businesses from the power of larger, more dominant ones. Competition law also focuses on the manner in which the firms and players in a market interact with one another, whilst ensuring that such interactions are not contrary to the rules on fair competition. Two particular forms of illicit practices in the field of Competition law include anti-competitive agreements and abusive behaviour. The former consists of agreements between undertakings which impact the prevention, restriction, or distortion of competition within the internal market. The latter refers to behaviour which is practiced by a dominant firm against other ‘weaker’ undertakings in a market.1 These are dealt with under Articles 101 and 102 of the Treaty on the Functioning of the European Union2 (or ‘TFEU’) respectively.

The digital economy on the other hand, refers to all economic transactions which take place over the Internet. This is based on the concepts of globalisation, hyper connectivity, and digital computing technologies, and results from the interconnected world which we are currently living in. In essence, this involves the spread of the use of Information and Communication Technologies, otherwise called ‘ICT’, across numerous business sectors, which are aimed at enhancing productivity and efficiency levels. The digital economy has created various benefits arising from the fact that digital technologies drive innovation, boost economic growth, and also boost job opportunities within a society. The traditional economy is being transformed to a more digital one, which is also impacting the manner in which businesses are structured and the manner in which consumers obtain a product or service.

This means that competition law practices, which have evolved in regulating the traditional business sphere, are now facing challenges when applied to the new digital business sphere. While some proponents argue 1 Richard Whish, Competition Law (1996).

2 Treaty on the Functioning of the European Union, 2012.

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Competition Law that Competition law rules need to be modified to address the various technological developments within the digital economy, others believe the current regulatory framework is flexible enough to adapt to the new digital environment.

The challenges being posed by the digital economy, however, are not limited to Competition law but rather are creeping into other areas of law.

This means that trying to regulate these issues within the regulatory box of Competition law alone, may not suffice. From a purely Competition law perspective, an important question which regulators across the European Union (‘EU’) are trying to address is the following: ‘Are the current Competition law rules sufficient to deal with competition concerns which involve technology companies, such as online platforms?’ However, since the digital economy knows of no boundaries, it is also impacting other legal regimes such as Consumer law and Data Protection law, and raising very interesting questions.3 The overlap and interplay between Competition law and these other legal regimes should not be underestimated.

2. Introduction to EU Competition Law In any open market economy, the element of free competition is essential as it stimulates economic performance and offers consumers a broader choice of products and services at competitive prices. The European legal framework on competition rules ensures that fair and equal conditions are set out for businesses, whilst promoting a market which is spurred by innovation, unified standards, and the fair development of small businesses.

Competition policy in this regard ensures that competition is not distorted in the internal market.

The European Commission, together with national competition authorities, is entrusted with the effective enforcement of competition rules in the areas of antitrust and cartels, mergers and state aid, maintaining competition instruments aligned with market developments, as well as promoting a competition culture in the EU and world-wide. These authorities follow an economic as well as a legal approach to the assessment of competition 3

‘Digital Economy: Definition, Advantages, Disadvantages, Videos’ (Toppr-guides, 2020) <https://www.toppr.com/guides/business-environment/emerging-trends-in-business/ digital-economy/> accessed 10 August 2020.

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id-dritt issues. The Commission has also put forward measures to improve the right for consumers and businesses to get damage compensation when they are victims of anti-competitive conduct.

The European Court of Justice, or ‘CJEU’, is the supreme court of the European Union in matters of EU law and is tasked with interpreting and applying EU law. The CJEU has also left a great impact on the sphere of Competition law and has developed the definitions of a number of terms and concepts of Competition law. Essentially, Competition law is the cornerstone of the EU’s internal market, and therefore the EU consistently endeavours to promote fair competition.4

2.1 The Legal Framework Fundamentally, the framework of EU Competition law can be divided into three distinct parts: Article 101 of the TFEU, Article 102 of the TFEU, and a set of merger control provisions dealt with in Regulation 139/2004. The rules on the granting of state aid, also an important aspect of EU Competition law, will not be discussed in this paper. Furthermore, reference to EU Treaty articles and EU case law, in this paper, are wholly transposable to the local context.

Indeed where, throughout this paper, reference is made to Article 101 and Article 102 of the TFEU, this should be construed as a reference to Article 5 and Article 9 respectively of the Maltese Competition Act (‘Competition Act’), which replicates the EU articles verbatim. Furthermore, Maltese Courts and the Office for Competition in Malta faithfully interpret and application these provisions in accordance with EU law.

2.1.1 Article 101 of the TFEU - Cartels Article 101 prohibits agreements that have as their object, or effect, the restriction, prevention, or distortion of competition within the EU, and which have an effect on trade between EU member states.

4

‘Competition, | European Union’ (European Union, 2020) <https://europa.eu/european-union/topics/competition_en> accessed 10 August 2020.

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Competition Law In terms of Article 101, therefore, there are three conditions which are required for this provision to come into play; namely, (a) collusion between undertakings; (b) market distortion; and (c) conduct, which is capable of affecting trade between Member States. In relation to the first requisite, ‘collusion’ refers to agreements between undertakings, decisions by associations of undertakings, and concerted practices between undertakings.

Market distortion requires that the collusion be of such a nature so as to prevent, restrict, or distort competition. Additionally, for Article 101 to apply, the collusive conduct must also be capable of affecting trade between Member States, thus including an EU dimension.

When discussing Article 101, it is important to also discuss the notions of an ‘agreement’ and a ‘concerted practice’ for the purposes of collusion under Competition law.

(a) Collusion Agreements Agreements may be of a horizontal or vertical nature. Horizontal agreements are those arrangements between undertakings operating on the same level of the production or distribution chain within an economy.

Horizontal agreements may restrict competition in particular where they involve price fixing or market sharing, or where the market power resulting from the horizontal co-operation causes negative market effects with respect to prices, output, innovation, or the variety and quality of products.

Conversely, vertical agreements refer to those agreements between undertakings operating at different levels of the supply chain, for example a manufacturer and a retailer, and include conditions under which the parties may purchase, sell, or resell certain goods or services.

The concept of an ‘agreement’ for the purpose of Article 101, has been further developed by the CJEU jurisprudence. In the AEG Telefunken case,5 the CJEU found that AEG Telefunken was operating a policy whereby distributors who did not comply with the pricing policy, would not be admitted as distributors in their selective distribution network. The distributors were aware of this policy and thus, the Commission noted that there was tacit 5

Case 107/82 EG-Telefunken v Commission of the EU Communities [1983] ECR I-03151.

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id-dritt consent by the distributors, and thus there was an agreement.6 Furthermore, in the case of Bayer, the CJEU held that since Bayer unilaterally proposed an agreement but the wholesalers concerned did not communicate any acceptance to Bayer, the essential conditions required for an agreement were not present, thus no agreement was constituted. For an agreement to be present, there must be the concurrence of wills which would ‘constitute the faithful expression of the joint intention of the parties.’ On the other hand, in the Sandoz v Commission case,7 Sandoz had an interest in deterring the export of products abroad, where prices were higher. Sandoz did not want companies abroad to parallel trade with foreign countries dealing with Sandoz products. When Sandoz came to distribute its products to Italy, the invoice included a warning that the goods were not to be exported outside the country. Here, the CJEU concluded that an agreement was indeed constituted. The CJEU held that although an invoice does not constitute a contractual document, it nonetheless contains contractual terms. Even though it appeared to be a unilateral form of conduct, since it was a standard issue of Sandoz, the Court concluded that there was adherence by the distributors, thus constituting an agreement.

Where an agreement is not present, Article 101 could still come into play if there is deemed to be a ‘concerted practice’. A ‘concerted practice’ was defined in the Dyestuffs case8 as: a form of coordination between undertakings, which without having reached the stage where an agreement properly so called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition.

Therefore, coordination of the kind described above between undertakings is sufficient for a finding of collusion and will therefore fall under the remit of Article 101.

6

Case T-41/96 Bayer AG v Commission of the European Communities [1996] ECR II-03383.

7

Case C-277/87 Sandoz v Commission [1990] ECR I-00045.

8

Case C-48/69 Imperial Chemical Industries Ltd v Commission of the European Communities [1972] ECR 00619.

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Competition Law (b) Market distortion In determining whether an agreement or concerted practice restricts or distorts competition in the market, two types of infringements are considered: (a) infringement by object; and, (b) infringement by effect. While the distinction between the two categories of infringement has become rather blurred, in general, object infringements arise from conduct that is inherently anti-competitive and is hence at the more serious end of the scale, such as price-fixing and market partitioning. In such cases, there is no need for a competition authority or claimant to prove an actual effect on competition since this is presumed.

In contrast, agreements that are less obviously anti-competitive require analysis of their actual effects before being condemned under competition law. Any negative effect on competition must be appreciable to be caught

by Article 101 TFEU. In the Beef Industry Development Society Ltd. case,9 the Court made a distinction between infringements by object and infringements by effect. It was stated that this distinction: arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition.

On the other hand, as per the LTM v MBU case10, in terms of infringement by effect, the consequences of the agreement should then be considered.

The competition in question must be understood within the actual context in which it would occur.

Thus, when determining any type of infringement, whether by object or by effect, the agreement must not be considered and evaluated in isolation.

However, if there are similar agreements which are widespread, their

9

Case C-209/07 Competition Authority v Beef Industry Development Society Ltd & Barry Brothers (Carrigmore) Meats Ltd [2008] ECR I-08637.

10 Case C-56/65 Societe Technique Miniere v Maschinenbau Ulm GMBH [1966] ECR 00235.

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id-dritt cumulative effect should be taken into account.11

(c) Conduct which is capable of affecting trade between Member States In terms of the final requisite of Article 101, this adds a European dimension to the article, meaning that to be caught under Article 101, such prohibited conduct would have to result in affecting trade between Member States.

2.1.2 Article 102 of the TFEU – Abuse of a dominant position Article 102 of the TFEU deals with situations of abuse by an undertaking which is in a dominant position within the internal market and which would affect trade between Member States. Thus, for Article 102 to come into play, the undertaking must: (a) hold a dominant position in the relevant market; (b) perform an act constituting an abuse; and, (c) affect trade between Member States. (a) Dominance The first in an Article 102 investigation is to assess whether the undertaking concerned is dominant or not. Defining the relevant market is essential for assessing dominance, because a dominant position can only exist in a particular market. Before assessing dominance, the Commission or national competition authority concerned must define both the product market and the geographic market: •

Product market: the relevant product market is made of all products/services which the consumer considers to be a substitute for each other due to their characteristics, their prices, and their intended use.

•

Geographic market: the relevant geographic market is an area in which the conditions of competition for a given product are homogenous.

11 Richard Camilleri, ‘Essential Requisites of Article 101 TFEU’ (University of Malta, 2018).

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Competition Law The term ‘dominance’ was defined by the CJEU as constituting ‘a position of economic strength enjoyed by an undertaking, which enables it to prevent effective competition being maintained on the relevant market’. A dominant position can generally be said to exist once a market share to the order of 40% to 45% is reached. In the case of Hoffmann La Roche v Commission,12 the Court explained that a dominant position: may derive from several factors which taken separately are not necessarily determinative, but among those factors a highly important one is the existence of very large market shares, and thus, the Court concluded that there was the abuse of a dominant position as per Article 102 of the TFEU.

(b) Abuse of a dominant position To be in a dominant position is not in itself illegal. A dominant company is entitled to compete on the merits as any other company. However, a dominant company has a special responsibility to ensure that its conduct does not distort competition. Examples of behaviour that may amount to an abuse include: requiring that buyers purchase all units of a particular product only from the dominant company (exclusive purchasing); setting prices at a loss-making level (predation); refusing to supply input indispensable for competition in an ancillary market; charging excessive prices.

Therefore, as seen in the above examples, anti-competitive behaviour involves both exclusionary and exploitative abuses. The typical anticompetitive story is one in which a firm reduces competition through anticompetitive means (exclusion) in order to reap the benefits of higher market power (exploitation). In this sense, exclusionary and exploitative abuses are part of the same economic logic for antitrust, and both types of behaviours are at the core of Article 102.

12 Case C-85/76 Hoffmann La Roche v Commission [1979] ECR 00461.

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id-dritt (c) Effect on trade Similar to Article 101, the prohibited conduct must be capable of affecting trade between Member States, thus adding an EU dimension. This leads us to defining the ‘relevant market’ and as per Article 2 of the Competition Act,13 it is defined as the: market for the product whether within Malta or limited to any particular area or locality within Malta, or outside Malta, and whether or not restricted to a particular period of time or season of the year.

Thus, the relevant market has three aspects: (i) the relevant product market; (ii) the relevant geographic market; and, (iii) the relevant temporal market. Essentially, the objective of defining the market is to identify any potential competitors which would constrain an undertaking. There are three sources of competitive constraints: (i) demand substitution; (ii) supply substitution; and, (iii) potential competition. Demand substitution involves a determination of the range of products which are viewed as substitutes or interchangeable by a consumer. Supply substitution involves the extent to which suppliers can switch production to the relevant product and market them in the short term, without incurring additional costs. Finally, potential competition refers to the entry of new competitors in the relevant market.

2.1.3. The EC Merger Regulation Competition law also consists of the merger control provisions which are regulated pursuant to the ‘EC Merger Regulation’, Council Regulation 139/2004 on the control of concentrations between undertakings.14 For the purposes of this paper, it is sufficient to note that the notion of collective dominance would fall under this Regulation and deals with a situation where undertakings jointly hold a dominant position and a high combined market share. A particularly important case in this regard is that of

13 Competition Act, Chapter 379 of the Laws of Malta, Article 2.

14 Council Regulation 139/2004 on the control of concentrations between undertakings (the EC Merger Regulation), 2004.

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Competition Law Gencor Ltd. v Commission,15 involving a merger between two South African companies, Gencor Ltd., and Lenrow Ltd. Here, the Court referred to the Italian Flat Glass case,16 and stated that ‘the relationship of interdependence existing between the parties cannot be excluded from the notion of economic links.’

3. Economic Analysis of the Digital Market As discussed in section 2.1.2 of this paper, defining the relevant market is crucial in the application of Competition law, particularly with respect to the application of Article 102 of the TFEU. With Internet penetration rates soaring and mobile phones becoming the go-to platforms for service delivery, the digital economy sector is fast becoming a central contributor to economic growth. The profits being generated by such firms together with the industry growth rates, are attracting not only new players, but also a lot of merger and acquisitions, or ‘M&A’, activity within the sector. The global nature and also foundational technology for so many services and products, continues making the digital economy a recognised, yet elusive, sector to define and conceptualise.

3.1 Defining the Digital Economy As yet, there exists no standard or accepted definition of the digital economy, with a vast number of definitions or conjectures being applied by different studies. Definitions are always a reflection of the times and trends from which they emerge, and, in this case, the definitions also reflect the technologies that are prevailing or upcoming at the time. Internet is the key feature in the earlier definitions17 whilst the inclusion of other technologies such as mobile and cloud computing and big data are seen emerging

15 Case T-102/96 Gencor Ltd v Commission of the European Communities [1999] ECR II-00753.

16 Case T-68/89 Societá Italiano Vetro v Commission [1992] ECR II-01403.

17 G20 Digital Economy Task Force, ‘G20 Digital Economy Development and Cooperation Initiative’ (G20 DETF, 2016 2016) <https://www.mofa.go.jp/files/000185874.pdf> accessed 4 September 2020.

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id-dritt towards the later definitions.18 The emergence of the Internet, e-commerce, and other Internet-related businesses, brought about some fundamental differences on how the digital economy is defined. The most substantial change saw the differentiation of the digital economy into several components in order to distinguish between digital goods, normal goods sold through digital means, and also the foundational IT technologies.19 A second important element is the realisation on how the boundaries between the digital and traditional economy were becoming more blurred and harder to define the digital economy in a complete and holistic manner.

It is therefore evident that a framework is needed to define the digital economy, which is best seen as a three-pronged nested conceptualisation.

The first innermost element, refers to the foundational technologies, or the IT/ICT sector. This mainly relates to the production of these technologies and related foundational services as part of, indeed as the core of, the digital economy. This is best defined by the Organisation for Economic Cooperation and Development, or the ‘OECD’, which states that the ICT sector is ‘a combination of manufacturing and services industries that capture, transmit and display data and information electronically’.20However, the digital economy is broader than this core especially since ‘increasingly the digital economy has become intertwined with the traditional economy making differences between them less clear’21; ‘The digital economy is increasingly interwoven with the physical or offline economy making it more and more difficult to clearly delineate the digital economy’.22 Not only is there a problem of clarity, there is also a problem of scope, since more and more 18 Lane N, ‘Advancing the Digital Economy into the 21St Century’ [1999] Information Systems Frontiers <https://link.springer.com/article/10.1023/A:1010010630396> accessed 14 September 2020.

19 Margherio, ‘The Emerging Digital Economy’ (Department of Commerce, Washington, DC 1999) <https://www.commerce.gov/sites/default/files/migrated/reports/ede2report_0. pdf> accessed 4 September 2020.

20 ‘Measuring the Information Economy 2002 – OECD’ (Oecd.org, 2020) <http://www.oecd.org/ sti/ieconomy/measuringtheinformationeconomy2002.htm> accessed 4 September 2020.

21 OECD, ‘The Digital Economy’ (2013) <http://www.oecd.org/daf/competition/The-Digital-Economy-2012.pdf> accessed 4 September 2020.

22 European Parliament, ‘Challenges for Competition Policy in A Digitalised Economy’ (2015) <https://www.europarl.europa.eu/RegData/etudes/STUD/2015/542235/IPOL_ STU%282015%29542235_EN.pdf> accessed 4 September 2020.

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Competition Law services, manufacturing and even primary production activities, rely on ICTs. The digital economy under these definitions increasingly becomes just ‘the economy’.

In order to define the digital economy, we base ourselves on the notion of intensive and extensive applications of ICTs.23 Intensive applications improve an existing economic activity. On the other hand, extensive applications extend the boundaries of economic activity. Through this approach, the digital economy is seen as representing all extensive applications of digital technologies together with their production. It would also include some of the emerging business model trends being spurred by digital technologies and include the platform economy, the gig economy, and the sharing economy.

Based on this and the central notion of extensivity, we therefore define the digital economy as ‘that part of economic output derived solely or primarily from digital technologies with a business model based on digital goods or services.’ The definition has a blurred boundary, but it is also flexible enough to incorporate digital and digital business model innovation over time.

On the other hand, the broadest definition would be the digitalised economy which is broader than the digital economy by including e-business, e-commerce, algorithmic decision-making in business, and the emergence of Internet of things and industry 4.0. An illustrative framework, outlined in Figure 1 below, should support in identifying the digital economy.

23 Narasimhan R., ‘The Socioeconomic Significance of Information Technology to Developing Countries’ [1983] 2(1) The Information Society.

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Figure 1: Conceptual framework of the digital economy

3.2 Identifying and Assessing the Digital Economy Although the framework defined above provides a clear way to identify the digital economy, there are still particular challenges to this economic activity especially with respect to its measurement. This challenge is best highlighted by the House of Commons24 which states that: good policy making, tax policy and the allocation of resources require high-quality data. This does not exist at present in the digital economy, and policy making cannot therefore be reliably expected to support as much as possible the digital economy.

This difficulty is seen across a number of economic techniques and measurements, including when it comes to the intricacies of Competition law 24 House of Commons Business, Innovation and Skills Committee, London, ‘The Digital Economy’ (House of Commons 2016) <https://publications.parliament.uk/pa/cm201617/cmselect/cmbis/87/87.pdf> accessed 4 September 2020.

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Competition Law and market assessments. The main challenges can be identified as follows: 1.

Blurring boundaries: As already discussed, our economy and our daily life is being more and more shifted onto digital platforms. The COVID-19 pandemic has intensified this shift to an all-encompassing digital life. Given this blurred boundary between the digital economy and the rest of the economy, measurement is made even more difficult. Such blurred boundaries also make comparisons difficult across markets as digital services today control and are available across multiple locations.

2.

Data quality problems: Given the immense innovation and technology changes that are happening. Data is not always able to keep up with the developments and therefore they might inherently include a time-lag of measurement.

3.

Problems with price: The digital economy, particularly the foundational technologies, are very much linked to Moore’s Law which states that the market is characterised by falling prices for the same amount of ICT power. The same may be true for ICT-enabled services, which also see qualitative changes which the price may not reflect, and the availability of free items that nonetheless add economic value. Corrections have to be made to account for this, but these are more of an art rather than an exact science.25 4.

Digital economy invisibility: One of the main difficulties is that many digitally-enabled economic activities do not automatically appear as output. They may be intermediate services between businesses or between consumers, becoming further problematic for tracing or tracking and measurement, especially in relation to cross-border digital trade and digital consumers-as- producers.26

25 Moulton B, GDP And the Digital Economy, In Understanding the Digital Economy (Brynjolfsson & B Kahin (eds), MIT Press 2000).

26 OECD, ‘Measuring GDP In A Digitalised Economy’ (2016) <http://www.oecd.org/dev/Measuring-GDP-in-a-digitalised-economy.pdf> accessed 4 September 2020.

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id-dritt Given the above-mentioned challenges and the unique features of the digital economy, the market identification and assessment processes are intricate exercises. This has important implications in various economic and legal cases, including competition, antitrust, and mergers and acquisitions. It is therefore critical that any cases in the digital economy are properly assessed and quantified using appropriate economic tools and methods to strengthen any legal argument being made.

4. Emerging Challenges for the Enforcement of Competition Law in the Digital Economy As stated above, today’s world has become largely influenced by the constant technological developments impacting one’s daily life and the world at large, from an economic point of view, largely converting the ‘traditional’ economy into a more digital one. Evidently, this development has brought about a number of challenges in terms of the validity of the framework, application, and enforcement of EU Competition law rules in this regard; rules which were construed for and applied in the traditional non digital sphere. The increasing reliance on the digital economy thus merits the question: ‘Do the existing rules on Competition law require modification, or is the framework comprehensive and flexible enough to deal with issues which may arise from the digital economy?’ And not only Competition law!

The growing prevalence and reliance on the digital economy is also affecting other aspects of EU Law, such as Consumer law and Data Protection law, which will not be dealt with in this paper. In this chapter, we attempt to identify some salient challenges for the enforcement of Competition law in the digital economy.

The prevalent challenging topics include discussions on disruptive innovation, algorithms and collusion, two-sided markets, and enforcement tools in multi-sided markets.

Indeed, the OECD27 has held several discussions on specific recent policy issues surrounding the digital economy. The OECD analysed such 27 ‘Digital Economy – OECD’ (Oecd.org, 2020) <https://www.oecd.org/sti/ieconomy/> accessed 29 September 2020.

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Competition Law issues from various aspects, including legal, economic, and financial ones.

Additionally, back in 2016, the OECD chose to focus on the concept of the digital economy as a strategic theme for the OECD Competition Committee.

This project was sub-divided into four aspects; namely, (1) the relationship between the digital economy, Competition law and innovation; (2) challenges posed to prevailing antitrust tools and approaches; (3) practical challenges to competition enforcement; and finally, (4) the development and evolution of specific industries. In the digital market and economy, competition between firms still takes place. Two important features of this new market are: (1) once a firm establishes a large network of users, the positive feedback which the users spread means that more and more customers will continue to be attracted to this firm, thus making it very difficult for existing or potential competitors to attract customers; and, (2) digital markets tend to be dominated by a small number of firms, who individually hold a strong market position. In this context, governments, as well as national and international competition authorities are devoting more attention to digital markets and Competition policy. The OECD Competition Committee has developed a range of resources28 which may provide assistance in this regard.

4.1 Challenges in Terms of Article 102 of the TFEU 4.1.1 Market Definition As mentioned in section 2.1.2 of this paper, defining the relevant market is a necessary precursor to the assessment of a firm’s market power, and potentially abusive conduct. This definition is crucial because depending on the definition adopted by the authorities, a firm may be considered dominant or not. In fact, the wider the market definition, the lower the market share and chances of dominance, and vice versa.

Chapter 3, however, explains how challenging it is to define such markets in the context of the digital economy. Competition authorities have noted that one of the reasons for this difficulty is that in the digital marketplace, firms continuously redefine the boundaries of a market and create new markets, thus making it very difficult to delineate the boundaries of the relevant market for any consistent period of time.

28 See OECD Recommendations and Best Practices on Competition here: <https://www. oecd.org/daf/competition/recommendations.htm>

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id-dritt Another challenge arises in relation to defining the relevant market for two-sided markets, which are essentially markets which exist when both buyers and sellers meet to exchange a product or service, creating both bids to buy and offers to sell, such as when users interact on an intermediary or platform to the benefit of both parties (one as a consumer, and the other as a seller of goods or services). Typical examples of such include: (i) media companies, that sell content, and advertising space; (ii) payment cards companies, that sell the use of a card to buyers and that of a pointof-sale (POS) terminal to shops; and, (iii) online intermediaries, that sell their services to buyers and sellers. Some of the more contemporary two-sided platforms include Facebook, Netflix, Amazon, Uber, and YouTube. In this respect, Filistrucchi et al. suggest that, given the necessity to define a single relevant market encompassing both sides, one should consider both sides of the market when defining the relevant market in the case of two-sided platforms, which more often than not is no easy feat.29

4.1.2 Market Power Another difficulty in applying Article 102 to the digital sphere relates to the assessment of market power. Traditionally speaking, competition authorities rely on quantitative factors including indices such as the HerfindahlHirschman Index, or ‘HHI’, and the Lerner Index, in order to decide whether a firm is in a dominant position or not. Contrastingly, when dealing with the digital economy, due to its dynamic and fast-changing nature, quantitative factors do not seem to be sufficient in determining whether a firm is in a dominant position or not. This is because, in a digital market, if a firm has a high market share, this does not necessarily mean that it is in a dominant position, since essentially its market share can change drastically within a short period of time. The use of stock values and take-over prices may sometimes be relevant when analysing whether a firm operating on a digital platform has a high market power or not. Having said this, these factors focus on the overall profitability of the firm and fail to target particular services or product lines. They also tend to be less reliable in digital markets due to the innovative and ‘unstable’ nature of such markets.

29 Filistrucchi L and others, ‘Market Definition in Two-Sided Markets: Theory and Practice,’ (2013) 10(2) Journal of Competition Law and Economics <https://ideas.repec.org/ p/frz/ wpaper/wp2013_05.rdf.html> accessed 11 September 2020.

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Competition Law 4.2 Anti-Competitive Practices 4.2.1. Identifying collusion The digital economy has the potential to cloud our ability to distinguish between anti-competitive practices and normal business strategies. Very often, digital business models can easily conceal anti-competitive practices within pro-competitive ones, and thus competition authorities must find new ways of combating this issue. In the case of BP Kemi,30 a cooperation agreement between BP Kemi A/S and A/S De Danske Spritfabrikker was entered into, which limited the sales of ethanol in Denmark. The model contract clauses, or ‘MCCs’ included in the agreement appeared to be procompetitive ones which were suitable to lead to foreclosure. However, the Court delved deeper into this agreement and concluded that it constituted an anti-competitive agreement since it allowed the supplier to gather information on competing offers, and discouraged potential competitors from entering the market. Although it was not signed, the Court, nonetheless, found that it was a faithful expression of the joint intention of the parties, and thus constituted an anti-competitive agreement.

4.2.2. Leveraging Another issue which tends to arise in the digital economy is the issue of the leveraging of market power. This refers to a situation when a firm uses the market power in the primary market in which it operates, to establish itself in other related markets. This can be seen in the case of Amazon,31 where back in 2018, the European Commission carried out an investigation on the allegations of anti-competitive conduct of Amazon. The investigation focused on the interdependencies between ‘Amazon Marketplace’ and its role as an online retailer. Amazon’s dual role as both a marketplace sales representative and an online retailer, constituting a ‘hybrid platform’, has raised concerns both in the US and in Europe.32 Amazon operates both on an upstream intermediation market for businesses and on a downstream retail market for its customers, which creates a strong conflict of interest for 30 BP Kemi DDSF (1979) IV/29.021.

31 ‘Press Corner’ (European Commission - European Commission, 2020) <https://ec.europa. eu/commission/presscorner/detail/en/IP_19_4291> accessed 29 September 2020.

32 Höppner T and others, ‘The EU’S Competition Investigation into Amazon Marketplace Kluwer Competition Law Blog’ (Kluwer Competition Law Blog, 2020) <http://competitionlawblog.kluwercompetitionlaw.com/2018/11/30/the-eus-competition-investigation-into-amazon-marketplace/> accessed 14 September 2020.

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id-dritt Amazon. Allegedly, Amazon was using the data which it collected from the retailers and using it on its Marketplace in order to compete against them with its own, and possibly better, offering. This practice may lead to the risk of ‘defensive leveraging’, which occurs not only when a firm attempts to reap additional monopoly rent from a second market, but also when it attempts to prevent erosion of the primary monopoly.

4.3 Specific Digital Challenges Under Present EU Competition Laws As discussed in Chapter 2 of this paper, under Article 101, undertakings are prohibited from entering into anti-competitive agreements or colluding with other companies. Moreover, under Article 102, abuse of an undertaking’s dominant position is prohibited. These provisions, in principle, would apply both in the online and offline worlds. However, a digital market is much more dynamic than a traditional market, bearing in mind that competition law rules are essentially based on the interplay of firms within a static market and not a dynamic one. In explaining the dynamic element of online undertakings, one could refer to ‘Digital Ecosystems.’ Digital ecosystems are becoming more common, with competition authorities even coining the term ‘GAFAcompanies’, an acronym referring to Google, Amazon, Facebook, and Apple, whereby a number of closely related platforms co-exist within a single ecosystem, which can lead to the lock-in of consumers, thus reducing competition. Digital ecosystems refer to groups of interconnected information technology services or resources which function as a unit; essentially this refers to a complex network of stakeholders that connect online and interact digitally in ways that create value for all. And the pitch is both simple and universal; you often need just one account for all the services. 33 Google, to give an example of how these digital ecosystems operate, offers data storage services, mail services, music streaming, video streaming, advertising, map services, and many others, under the heading of one digital ecosystem; all with the registration of one account. The competition law issues that such digital ecosystems give rise to its abuse of dominant position, which is why national authorities throughout Europe have dramatically increased their level of competition law enforcement towards tech giants.

In addition to such, the digitalisation of the economy has led to markets 33 ‘Digital Ecosystem: Definition, Creating Strategies & Examples | TCS’ (Tcs.com, 2020) <https://www.tcs.com/perspectives/articles/defining-your-digital-ecosystem-the-firststep-in-a-machine-first-transformation> accessed 14 September 2020.

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Competition Law in which identical or similar products can be bought both in offline form; for example, buying a book from a bookstore, and online form; for example, an online e-book. The problem here is that it leads to a situation where the digital economy seems to be converging with the ‘traditional’ economy. The current framework on competition law seems to be designed to deal with issues which arise from ‘traditional’, or offline economies. Seeing that the traditional economy is now converging with the digital one, this is evidently posing another challenge for the enforcement of competition law rules, whereby these rules may in fact need to be revised in order to deal with issues arising from the digital economy.34

5. European Case Law The CJEU, has played an important role in discussing the challenges which have arisen in terms of the enforcement of competition law in the digital economy. This chapter will identify certain cases decided by the European Court of Justice in relation to market definition, market power, and Most Favoured Nation, or ‘MFN’ clauses.

5.1 Market Definition Market definition can be difficult to establish especially in light of twosided markets. Two-sided markets, or multi-sided platforms, as discussed in section 4.1.1. of this paper, have two or more groups of customers who need each other in some way, and rely on a catalyst to facilitate the interactions between them.35 In the case of MasterCard v Commission,36 MasterCard was imposing multilateral interchange fees, or ‘MIFs’, which are paid indirectly by a retailer to a cardholder’s bank whenever a cardholder pays with his/her card. These fees inflate the cost of card acceptance for merchants. The CJEU ruled that these MIFs constitute a restriction of competition since they limit the pressure 34 Viktoria H.S.E. Robertson, ‘Antitrust Law and Digital Markets A Guide to The European Competition Law Experience in The Digital Economy’ (University of Graz, 2020).

35 David Evans and Richard Schmalensee, ‘The Antitrust Analysis of Multi-Sided Platform Businesses’ (2013).

36 Case C-382/12 MasterCard Inc, MasterCard International Inc and MasterCard Europe SPRL v European Commission [2014].

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id-dritt which merchants can exert on acquiring banks when negotiating the costs charged by those banks. Additionally, the CJEU noted that the MIFs which were being used by MasterCard are not objectively necessary to operate the MasterCard system. Thus, the judgement confirmed that MasterCard’s interbank fees for cross-border payment transactions in the EEA, restrict competition in the internal market and are in breach of EU Competition law.

In addition to the decision, the CJEU also mentioned that this concept of ‘two-sided market’ lacks a coherent market definition framework.

5.2 Market Power Additionally, in the Apple/Shazam case, the Commission discussed the challenge of identifying the market share of a company. It stated that: market shares may not be a perfect proxy for measuring market power in recent and fast-growing sectors characterised by frequent market entry and short innovation cycles.37 Similarly, in the Cisco case, the Court identified the fact that market shares may not adequately reflect the existence of market power in the digital market environment. Additionally, it was stated that the consumer communications sector and the digital economy are: recent and fast-growing sectors which are characterised by short innovation cycles in which large market shares may turn out to be ephemeral. In such a dynamic context, high market shares are not necessarily indicative of market power.38 Contrastingly, in the Google Shopping case,39 the Commission emphasised that very large market shares were ‘save in exceptional circumstances, evidence of the existence of a dominant position’. The Commission took several factors into consideration when assessing Google’s dominant position. These factors included the company’s market shares, barriers to entry and expansion, brand effects, and the lack of countervailing buyer 37 Case COMP/M8788 Apple/Shazam [2018].

38 Case T-79/12 Cisco Systems v Commission [2013] Court Reports (General).

39 Case AT39740 Google Search (Shopping) [2017].

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Competition Law power. Also, in this case, the Commission discussed Article 102 of the TFEU, and stated that the fact that a market is highly dynamic, does not preclude reliance on market shares.

Furthermore, when discussing the applicability of Competition law to the digital economy, the CJEU discussed this in terms of distribution agreements in the online sphere. In Pierre Fabre Dermo-Cosmetique, the CJEU held that a supplier is prohibited from placing an absolute ban on online sales on its distributors, as this would constitute anti-competitive behaviour under Article 101 of the TFEU. In the case of Coty Germany GmbH v Parfumerie Akzente GmbH,40 the CJEU stated that a selective distribution system for luxury goods does not breach EU Competition laws, provided that: (i) resellers are chosen on the basis of objective criteria of a qualitative nature, which are laid down uniformly for all potential resellers and not applied in a discriminatory fashion; and, (ii) the criteria laid down do not go beyond what is necessary. Thus, the CJEU ruled that a supplier of luxury products can prohibit its authorised distributors from selling those products through a third-party internet platform, provided that the above-mentioned conditions are met.

5.3 Most Favoured Nation Clauses Another interesting concept which the CJEU has discussed is the concept of ‘Most Favoured Nation’, or ‘MFN’, clauses. Essentially, MFN clauses limit the price at which a supplier can offer a product through alternative sales channels.

In recent years, certain digital market players have made increasing use of these clauses, particularly on hotel booking portals, such as ‘Booking. com’. Back in 2015, several anti-trust investigations were held in the Booking. com cases.41 In this case, the Federal Cartel Office of Germany, or the ‘Bundeskartellamt’, Germany’s National Competition Regulator, held that the use of MFN clauses by Booking.com constituted an unfair obstacle for 40 Case C-230/16 Coty Germany GmbH v Parfümerie Akzente GmbH [2016] Court Reports (General).

41 Bookingcom BV ‘Best price’ clause of online hotel portal Booking also violates competition law [2015] Bundeskartellamt, B9-121/13 (Bundeskartellamt).

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id-dritt those small and medium-sized hotels which are dependent on it. The Office ordered Booking.com to remove the best price clauses from its Terms and Conditions, and also from its individual agreements.42 In the Amazon E-books case43, the Commission had opened an investigation due to concerns about MFN clauses included in Amazon’s e-books distribution agreements that could have breached EU anti-trust rules. These required publishers to offer Amazon similar, or better, terms and conditions as those offered to its competitors and/or to inform Amazon about more favourable or alternative terms given to Amazon’s competitors.

The clauses covered not only price but many aspects that a competitor can use to differentiate itself from Amazon, such as an alternative business (distribution) model, an innovative e-book, or a promotion. Ultimately, the Commission stated that Amazon’s position on the digital market, for the retail distribution of English and German e-books to its consumers, constituted an abuse of its dominant position, as per Article 102 of the TFEU. As a result, Amazon adopted a number of commitments in tackling the Commissions’ decision, including not to enforce the relevant MFN clauses, to allow publishers to terminate e-book contracts that contain MFN clauses, and to not include in any new e-book agreement with publishers, any MFN clauses.

In terms of anti-competitive behaviour under Article 102 of the TFEU, one of the main cases in this regard is the Google-Android case.44 In this case, Google received a €4.34 billion fine for its anti-competitive behaviour wherein the Commission identified that Google had engaged in anticompetitive behaviour as it required smartphone manufacturers to preinstall its search and browser applications if they wanted to license Google’s Play Store. Interestingly, as a response to this Commission decision, Google held an auction process in each Member State for an Android ‘choice screen’, wherein a prompt will be shown to users of Android smartphones in the EU when setting up their device, asking them to choose as search engine, from a list of four, three of which would have been selected from each auction process. Another form of anti-competitive tying by Google was 42 Bunderkartellamt, ‘Best Price’ Clause of Online Hotel Portal Booking Also Violates Competition Law’ (2016) <https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/ Fallberichte/Kartellverbot/2016/B9-121-13.pdf?__blob=publicationFile&v=2> accessed 12 August 2020.

43 E-book MFNs and related matters (Amazon) [2017] European Commission, CASE AT40153 (European Commission).

44 Case AT40009 Google-Android [2018].

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Competition Law also identified by the Commission; this consisted of the fact that Google only allowed manufacturers to install the Google-approved version of Android.

Conclusively, it is evident that various authorities, including the European Commission, National Courts, National Competition Authorities, and the CJEU, are facing numerous challenges when it comes to applying competition law to the digital economy and its digital markets.

6. The Way Forward: Legislation or Status Quo?

At present, there are various controversial views on the direction that competition law should take in the future. All these critics are, however, seeking to answer the following question: Can competition law retain its validity in the digital era, or do we need new regulation to deal with the challenges which are arising from digital platforms and markets?

To answer the above question, one needs to determine whether competition law in its current form can continue to guarantee a system whereby fair competition between firms can take place, and where competition is not distorted.45 Guidance might lie with the OECD ‘Competition Committee’ which was set up in order to bring together the leaders of the world’s major competition authorities. This Committee is currently very much involved in the debates which are surrounding the topic of the impact of digitalisation on competition law and policy. The key topics which are being addressed by the OECD include the adaptation of competition law enforcement tools to digitalisation, the assessment of new forms of competition harm in markets, the examination of the impact of digitalisation on the broader economy and lastly, the review of sector regulation to determine whether changes are needed in this regard.46 45 Sasha Muscat, ‘A Critical Analysis on the Effectiveness of Article 102 TFEU In the Digital Era’ (Bachelor of Laws thesis, University of Malta 2020).

46 OECD, ‘The Digital Economy, Innovation and Competition’ (OECD 2020) <http://www.oecd. org/daf/competition/OECDwork-Digital-Economy-Innovation-Competition2017-web. pdf> accessed 12 August 2020.

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id-dritt The OECD Competition Committee has adopted a number of non-binding recommendations and guidance on best practices on competition law and policy. Having said this, in terms of competition law and the digital economy, no recommendations have been published as of yet.

6.1 The European Commission’s New Competition Tool The European Commission is also playing an important role in these discussions. Earlier this year, the EU Commission launched an ‘Inception Impact Assessment’, which is a tool used by the Commission in order to inform citizens and stakeholders about its plans, thereby allowing them to provide feedback on the intended initiative. The Commission launched an Inception Impact Assessment for its proposed initiative for a ‘New Competition Tool’, or ‘NCT’.47 The Commission is proposing that this initiative would take the form of a legislative instrument, which aims at tackling the gaps in the current EU Competition rules. The NCT initiative, which is being proposed by the Commission, aims at ensuring fair and undistorted competition in the internal market. In its Inception Impact Assessment, the Commission proposed that Articles 101 and 102 of the TFEU would continue to be enforced on a caseby-case basis, whilst also proposing four options of tools which can be introduced in this regard.

The first option deals with setting up a dominance-based competition tool with a horizontal scope. This tool would allow the Commission and National Competition Authorities to identify competition issues and intervene before a dominant company takes over a market. Similarly, the second option focuses on structuring a dominance-based competition tool with a limited scope. Under this option, the use of the tool would be limited to certain sectors. The third option focuses on a market structurebased competition tool with a horizontal scope, allowing the Commission to identify and provide remedies for structural competition problems that cannot be dealt with under EU Competition rules. Lastly, the fourth option provides for a market structure-based competition tool with a limited scope, where similarly to the third option, structural competition problems would be addressed. However, under this option, the use of the tool would be 47 European Commission, New Competition Tool: Inception Impact Assessment, Ref. Ares (2020) 2877634 - 04/06/2020.

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Competition Law limited to particular sectors. Evidently, the first two options seek to address unilateral conduct by dominant companies, whilst the last two options aim at covering all identified structural competition problems. Additionally, the Commission claims that the remedies which can be imposed under the four options would be similar in scope.

6.2 The European Commission’s Impact Assessment on the ‘Digital Services Act Package’ The European Commission also issued another Inception Impact Assessment for a legislative initiative in order to kick-start the process of having a ‘Digital Services Act package’. This would constitute a regulatory instrument for large online platforms with significant network effects, acting as gate-keepers in the EU internal market. The Platform-to-Business Regulation (‘the P2B Regulation’)48 which came into force on the 12th of July 2020, was the first step towards establishing a fair and transparent business environment for online platforms.

In this Impact Assessment, the Commission is proposing three initial policy options. The first one involves the revision of the horizontal framework set out in the P2B Regulation quoted above. This establishes further horizontal rules for all online intermediation services. This focuses on certain targeted horizontally applicable additional provisions in view of the specific issues identified. The second proposal by the Commission involves the adoption of a horizontal framework which would empower regulators to collect information from large online platforms. The third option which is being proposed is the adoption of a new and flexible framework for large online platforms that benefit from significant network effects. This new framework would complement the horizontally applicable provisions of the P2B Regulation, which would continue to apply to all online intermediation services. Under this final option, two additional sub-options were also proposed. The first one consists of prohibiting or restricting certain unfair trading practices by large online platforms, also referred to as “blacklisted” practices, whilst the second one consists of the adoption of tailor-made remedies addressed to large online platforms on a case-by-case basis. These three proposed policy options are currently being analysed and discussed in further detail, 48 Platform-to-Business Regulation, Regulation 2019/1150, 2019.

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id-dritt particularly in terms of possible remedies and enforcement in this regard.49 When discussing the future of competition law in light of the digital economy, it is evident that there have been various discussions in this regard and a number of reports and articles have subsequently been issued. For example, the Amsterdam Law and Economics Centre published a policy review whereby it lamented that the principles of Article 102 of the TFEU shall remain effective, as long as they are adapted to the rapid evolution of the digital era. It was also noted that further research is required in terms of the digital aspects of such cases. The Conference Report issued by the EU Commission seems to be in agreement with this position, stating that competition law should continue to guide the evolution of digital markets and undertakings, and that any further regulation should supplement and reinforce Article 102 of the TFEU. On the other hand, there have also been contrasting views in this regard. In his report on ‘The Challenges of Digital Markets for EU Competition Law’,50 Francisc Toma argued that Article 102 of the TFEU requires a comprehensive review in order to be able to deal with abusive conduct by players in the digital field. Furthermore, he stated that a regulatory regime is required in this regard, as it will increase legal certainty and transparency, whilst harmonising the existing laws.

Ultimately, a balance must be struck between the above-mentioned contrasting viewpoints. One possible proposal as to how this balance may be reached is by defining the substance of the law at European level, whilst then leaving the implementation and enforcement issues to the Member States.

As of yet, the future of competition law in relation to the digital economy is an uncertain one. Evidently, Articles 101 and 102 of the TFEU play a significant role in shaping the legal environment surrounding the interaction between competition law and the digital economy.

49 European Commission, ‘Inception Impact Assessment on the Digital Services Act Package’ (2020).

50 Francisc Toma, ‘The Challenges of Digital Markets for EU Competition Law: The Case of Android’ [2017] SSRN Electronic Journal.

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7. Concluding Remarks This year, particularly with the onset of the global COVID-19 pandemic, our lives have become even more reliant on technology, where most workplaces were forced to close temporarily and shift to an online basis. Global statistics have also highlighted the fact that the activities which an individual performs in his/her daily life, have become predominantly online. We are currently living in a world with an increased reliance on digital communication technologies, or ‘DCT’, which have in fact, become an integral part of our everyday lives.

Generally-speaking, globalisation and digitalisation generate a large number of advantages both for customers, and also for the firms which are operating in digital markets. Having said this, competition authorities are facing a number of challenges in relation to the application of competition law, to issues which are arising between firms operating in the digital economy.51 Competition authorities are essential in protecting the market forces and ensuring that there is fair competition in a market. Competition authorities are facing a dilemma in terms of whether the current rules on Competition law are still adequate to deal with competition issues which are arising in the digital sphere, or whether these rules must be revised and amended in their entirety.

The general outlook which most commentators seem to have assumed in this regard, is that the EU should focus on substantiating, and possibly amending, the existing rules on competition law, instead of reinventing the wheel altogether.52 Presently, certain countries have already started to tackle this issue from a legislative point of view. In Germany for example, certain features of the digital economy, including new merger thresholds, have been included in its revised competition law. Additionally, the central competition authority in the UK published a report addressed to the House of Lords, including a suggestion on the consideration of the implementation of a ‘public interest test’ for data-driven mergers and acquisitions.

The approaches which have been assumed by the EU Commission, CJEU and numerous competition authorities in certain landmark EU judgements, 51 Pinar Akman, ‘An Agenda for Competition Law and Policy in The Digital Economy’ (2019) 10 Journal of European Competition Law & Practice 589.

52 ibid.

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id-dritt seem to suggest that Articles 101 and 102 of the TFEU, which constitute the backbone of EU competition law, can also be applied to digital cases. Having said this, it is also evident that the EU is aware of the fact that with the increase in the number of competition cases which are occurring in the digital sphere, action will need to be taken in order to provide a more comprehensive legal framework for this change. By issuing the Inception Impact Assessments on the NCT and the Digital Services Act package as explained in the previous Chapter, the European Commission has started identifying tools in order to counter the abuse of fair competition in the digital era.

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Paul Edgar Micallef The Case for a ‘Super’ Market Authority In Malta

Paul Edgar Micallef is the Chief Legal Adviser with the Malta Communications Authority. He studied law [LL.D.] at the University of Malta graduating in 1984. Subsequently he obtained the degree of Master of Jurisprudence from the University of Birmingham (UK). He is a visiting senior lecturer at the University of Malta and specialises in consumer law and utilities law.

He has drafted various laws on consumer protection, travel and the leisure industry, telecommunications, e-commerce and postal services for the Government of Malta. Over the years he has published numerous peer reviewed papers in various legal journals and books on the subjects of his expertise notably consumer law and communications law.

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Abstract The Malta Competition and Consumer Affairs Authority (‘MCCAA’), through its Director General (Consumer Affairs) and Director General (Competition), deals with market regulation in general. This regulatory role is complemented by certain services provided through the regulatory oversight of sectorspecific regulators. This, at times, has led to overlap, leading to a situation where the precise line of demarcation between regulatory roles of the MCCAA on the one hand, and of the sectoral regulators on the other is blurred, giving rise to issues concerning the respective remits.

In recent years, some countries have substantially changed their market regulatory set-up by adopting new regulatory models which establish comprehensive and unified regulatory authorities, responsible for both competition and consumer protection in general, and for ‘specialised’ regulatory oversight of specific sectors, including utilities such as energy, water and electronic communications services.

The current regulatory set-up in Malta is evaluated, and other options are considered whilst taking into account national circumstances and regulatory models adopted in other countries.

Concluding proposals are made advocating a comprehensive regulatory set-up which is responsive to national realities, whilst focusing on the feasibility of having a single authority in place, in lieu of the current market regulatory set-up. In doing so, specific aspects of the proposed set-up are considered, notably the appointment and composition of leadership of the proposed regulatory authority and its relationship with Government.

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1. Introduction

T

he current market regulatory set-up in Malta responsible for Competition and Consumer Protection has, with some notable changes, been in place since the early 2000s. This set-up is centred on the role of the Malta Competition and Consumer Affairs Authority (‘MCCAA’), which, through its Director General (Competition) (‘DG Competition’) and its Director General (Consumer Affairs) (‘DG Consumer Affairs’), regulates ex post competition and consumer affairs issues in general.1 In certain markets, the role of the MCCAA is complemented by the regulatory roles of sector specific regulators. This is the case with financial services, and with the various utilities such as energy2, water, transport, postal services, and electronic communications.3 The extent of the remit of these sector-specific regulators varies according to the nature of the sector in question. In some instances, notably with some utilities, the focus of the sectoral regulator, as distinct from the MCCAA, is on ex ante regulation and on specific end-user or consumer issues.4 Moreover, some sectors, possibly more than others, are, by their very nature, extremely complex, and require focused and specialised human resources.

In recent years, some countries, including various European Union (‘EU’) Member States, have revised their market regulatory set-up, at times quite radically. Whilst no single model is followed, there are some elements that characterise the changes being made by some countries.

One evident element is that various countries, including relatively large countries like Spain, are doing away with some of the specialised sectorspecific regulators by assigning the regulatory functions of these regulators to their national competition and consumer authorities. This is occurring mainly in relation to the regulation of utilities such as energy, water services, postal services, and electronic communications.5 There are various reasons 1 Throughout this article, unless otherwise stated, reference to the roles of the DG Competition and DG Consumer Affairs is collectively made by referring to the MCCAA. 2 The reference to ‘energy’ unless stated otherwise refers to the provision of electricity and gas.

3 Electronic communications cover most telecommunications services including fixed and mobile telephony and internet services.

4 The reference to end-user normally includes also business consumers, whereas the reference to ‘consumer’ in line with the definition generally used by the EU refers to a person who is not acting for the purposes of his business, profession or trade.

5 ‘Electronic communications services’ includes mobile and fixed telephony, and internet services amongst others.

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id-dritt for this. One reason relates to the elimination of the incidence of regulatory overlap between the national competition and consumer authority on the one hand, and the sector-specific regulator on the other. Having in place one comprehensive regulatory authority means that both consumers and businesses have one point of reference, rather than facing the possibility of being shifted from one regulatory authority to another, where, for instance, the issue involves a dispute relating to the provision of a utility service to consumers.

Another element which has motivated some countries to review their market regulatory set-up is the potential of financial savings which can be made in relation to the cost of regulatory oversight. This is done by having such oversight concentrated, as far as is reasonably feasible, in one regulatory authority. A market regulatory set-up characterised by diverse sector specific regulators would mean that each regulator invariably requires its own support services - such as themanagement of human resources and corporate services, and the provision of public relations in order - to function efficiently. Services with a unified regulatory authority in place can be concentrated in one central unit servicing all the diverse regulatory departments within the unified set-up, where such services were previously provided separately to diverse sector specific regulators and to the national competition and consumer affairs authority.

One notable element that consistently results when evaluating the market regulatory set-up in most countries is that in relation to financial services, the regulatory approach is to have a dedicated sector specific regulator in place. To a lesser extent, the same applies in the case of the regulation of tourism and leisure services and to the gaming industry. There are various reasons for this situation. In the case of financial services, the rationale for a focused regulator is tied to the complexity of the sector and the importance of having a focused regulator able to supervise effectively an ever increasing array of diverse and complex financial service activities.6 In relation to other sectors such as the tourism and leisure services sector, the need to have a dedicated regulator may, as is the case with Malta, be conditioned by the importance of these services to the national economy. Conversely, in other sectors in recent years, there has been a marked tendency to do away with sector specific regulation. This is the case with various utilities, notably 6 See for example Clive Briault, ‘The Rationale for a Single National Financial Services Regulator’ (1999) at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=428086>.

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Commercial Law electronic communications and energy services, which utilities previously had a specific sector regulator. The approach taken varies according to the country concerned, however, especially in smaller countries, there appears to be an increasing tendency to assign the role of utility regulation to the national competition and consumer affairs authority.

In the case of Malta, should the current regulatory market set-up be kept, in that the regulation in relation to certain sectors is shared between the MCCAA and sector-specific regulators? Or should the set-up be changed to provide for a comprehensive regulatory market authority? If a new comprehensive set-up is adopted, to which sectors currently subject to a ‘shared’ regulatory regime, should it apply? Once set-up, how should the headship of such a new set-up be appointed and composed? What role should the Government have in this regard? These are some of the issues that the author attempts to address in this paper. However, before trying to provide some answers, it is important to briefly trace the chronology of how market regulation in Malta has evolved in recent years. This will serve to give some background to the current overall regulatory set-up.

2. The Chronology of Competition and Consumer Protection Regulation in Malta.

Dedicated competition and consumer protection regulatory bodies in Malta first came into being in the mid-1990s. Until then, neither Consumer Protection Law nor Competition Law had an identity of their own. Whilst there were several laws in place which dealt with diverse aspects of consumer protection and of competition, there was then no focused legislation that could be labelled as Consumer Law or as Competition Law, providing for specialised market regulatory bodies dealing with consumer protection or with competition issues. In the case of consumer protection, the 1980s gradually witnessed the enactment of a few laws aimed specifically at certain aspects of consumer protection without however providing for an overall regulatory regime.7 Conversely, in the case of competition, the few norms in place at the time which could be considered as dealing with some aspect 7 Amongst such laws, one can list the Consumer Protection Act as per Act No. XXIX of 1981 focusing exclusively on the recognition of consumer associations, the Trade Descriptions Act as per Act No. XXII of 1986 and the Door-to-Door Salesmen Act as per Act No. VII of 1987.

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id-dritt of competition were primarily contained in the Commercial Code.8 Until the coming into force of the Competition Act in 1995, there was no public body expressly designated to investigate and determine competition-related issues.

The turning point that initiated the process to a coherent approach, both to consumer protection, and to competition, commenced in the early 1990’s, when the Government published two studies providing its vision and its legislative proposals to take matters forward. In 1991, a white paper was published whereby the Government undertook a fairly comprehensive review of existing laws which impacted consumer rights, outlining its proposals for a regulatory set-up, proposing amongst other measures a ‘Consumer Protection Council’ with regulatory powers and a ‘small claims court’ in order to determine consumer versus trader disputes involving low pecuniary values.9 Subsequently, in 1993, the Government published its legislative proposals to regulate consumer affairs and competition (‘the 1993 Legislative Proposals’).10 As part of these proposals, the Government included two draft Bills entitled respectively ‘The Consumer Affairs Act’ and ‘The Competition Act’. In the draft Bill on consumer affairs, the Government proposed the setting-up of the office of a Director of Consumer Affairs responsible for the enforcement of consumer protection legislation, and of a Consumer Affairs Council with the main function of advising the Minister for consumer affairs on the policy to be followed by the Director in the execution of his regulatory functions11. Significantly, the proposed Bill also envisaged the creation of the Consumer Claims Tribunal, and the granting of certain rights to and recognition of consumer associations, provided that these complied with certain criteria provided for by law.12 The draft Bill on competition envisaged the establishment of the Tribunal of Fair Trading presided by a member of the judiciary and two lay members 8 See Part III of the Commercial Code.

9 See the Paper entitled White ‘Rights for the Consumer’ published by the Government of Malta in August 1991 at pages 7-11.

10 Government of Malta, Department of Information, ‘Fair Trading the next step forward ... Proposals for Legislative Reforms’ (1993) <https://www.um.edu.mt/library/oar/handle/123456789/54952>.

11 ibid 6-10 and 28-32.

12 ibid 12-13 and 35-45.

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Commercial Law with accounting and commercial expertise. It was proposed that the Tribunal would function as an independent body with the remit of being responsible for the principal policy and regulatory decisions in relation to competition issues.13 The draft Bill also catered for the establishment of a Competition Office headed by a Director of Competition with the key function of investigating restrictive practices in competition and with enforcing decisions of the Tribunal of Fair Trading.14 Subsequently, in 1994, the Competition Act was enacted,15 coming into force in February 1995.16 In substance the Competition Act adopted similar regulatory and adjudicative structures to those proposed in the 1993 Legislative Proposals, altering, however, the nomenclatures used in the 1993 Legislative Proposals from ‘Tribunal of Fair Trading’ to ‘Commission for Fair Trading’, and from ‘Competition Office’ to ‘Office for Fair Competition’.17 In substance, both entities retained similar regulatory functions as proposed in the 1993 Legislative Proposals.18 The Consumer Affairs Act was also enacted in 1994;19 coming into force in January 1996.20 The regulatory and adjudicative structures, as proposed in the 1993 Legislative Proposals, were, in substance, reflected in the Consumer Affairs Act, providing for the establishment of the post of the Director of Consumer Affairs responsible for the executive enforcement of certain Consumer Protection Laws, together with the Consumer Affairs Council, with its main role being that of a consultative body.21 These legislative changes meant that in 1996, there were two separate regulatory set-ups in place; in the case of competition, there was a set-up in the form of the Commission for Fair Trading supported by the Office for Fair Competition, and, in the case of consumer affairs, there was a separate set-up in the form of the Director of Consumer Affairs assisted by the Consumer Affairs Council.

It is relevant at this juncture to briefly mention a proposal made by the 13 ibid 24 -25 and 59 -62.

14 ibid 24 and 59 -60.

15 As per Act No. XXXI of 1994.

16 As per L.N. No. 13 of 1995.

17 See Act No. XXXI of 1994 Articles 3 and 4.

18 ibid Articles 3, and 7 -15.

19 As per Act No. XXVIII of 1994.

20 As per L.N. No. 7 of 1996.

21 Consumer Affairs Act, Chapter 378 of the Laws of Malta, Article 4.

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id-dritt Government in 1998, when it had prepared a draft Bill entitled The ‘Authority for Fair Trading and Consumer Affairs Act, 1998’.22 The Bill envisaged a new comprehensive authority with overall regulatory oversight for competition and consumer affairs, headed by a board composed of a chairman, responsible for the overall administration of the proposed authority, of the executive heads of the competition and of the consumer affairs offices namely the Director of Fair Trading, and what was described as a ‘Consumer Ombudsman’, together with six other members representing specific interest groups including the private sector and consumers.

The draft Bill envisaged that the ‘Consumer Ombudsman’ would be responsible for the investigation of complaints by consumers as well as for the exercise of the regulatory functions, which, at that time, were performed by the Director of Consumer Affairs.23 Significantly, the draft Bill also empowered the aforesaid Authority to appoint ‘regulators’ in order to assist it in ‘the better performance of its functions’. The draft Bill, however, did not elaborate further on the role of these ‘regulators’. The proposed Bill, however, was never formally published, and there was no further discussion on the proposals made in that Bill, which proposals were regrettably not pursued any further following a change in Government.24 In 2000, partially in preparation for the entry of Malta as a member of the European Union, substantial amendments were made to both Competition Law and Consumer Affairs Law, whereby both the Director responsible for the Office of Fair Competition and the Director of Consumer Affairs were given new responsibilities at law.25 In 2001, the Government took an administrative decision to amalgamate the then Office of Fair Competition and the Office of the Director of Consumer Affairs, to form part of one new administrative set-up called the Consumer and Competition Division (‘CCD’); with a Director 22 Paul Edgar Micallef, ‘The Future of Consumer Law: Reflections on a Regulatory Framework for A Small Island State’, in The Yearbook of Consumer Law 2008, 247.

23 ibid 247.

24 This Bill was never formally published in the Government Gazette but was circulated amongst stakeholders for their submissions. Matters were not taken forward as in meantime a general election was held in 1998 and there was a change in Government and the proposals in the Bill at that stage were no longer pursued.

25 See Act No. XXVIII of 2000 which amended the Competition Act giving the Director of Fair Competition a more prominent role with more executive powers, and Act No. XXVI of 2000 adding new parts dealing with amongst others unfair practices and sale of goods to consumers whilst giving the Director of Consumer Affairs new enforcement tools including notably the power to issue compliance orders.

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Commercial Law General heading this division, who exercising the dual role of Director of the Office of Fair Competition, and of the Director of Consumer Affairs.26 In parallel with the establishment of national regulatory bodies to deal with competition and consumer affairs in relation to the market in general, during the period between 1997 to 2002, the Government also established various sector-specific regulators, notably the Malta Financial Services Authority (‘MFSA’) - which combined the regulatory oversight of various bodies which were previously responsible for different aspects of financial services,27 the Malta Tourism Authority (‘MTA’),28 the Malta Communications Authority (‘MCA’),29 and the Malta Resources Authority (‘MRA’),30 amongst others. In the case of the MRA, its regulatory functions relating to energy and to water services were assumed by the Regulator of Energy and Water Services (‘REWS’) in 2015.31 In 2011, the regulatory role of the CCD was assumed by a new market authority – the Malta Competition and Consumer Affairs Authority (‘MCCAA’).32 In addition, the MCCAA was assigned the functions of the former Malta Standards Authority which until then was responsible for standardisation and metrology. The MCCAA, as currently set-up, is composed of three main organs, namely the Board of Governors, the Co-ordination Committee and four ‘entities’ (the ‘MCCAA entities’), with each ‘entity’ headed by a director-general responsible for diverse regulatory functions.33 The Board of Governors (the ‘MCCAA Board’) is composed of a chairman and seven to 26 No amendments to the law were made to facilitate this change in the regulatory set-up.

See on page 238 following footnote no 23 supra.

27 See Act No XVII of 2002 by virtue of which law the MFSA was established assuming various regulatory functions which until then were onerous on other bodies such as the Central Bank of Malta, the Malta Stock Exchange and the Malta Financial Services Centre.

28 See Act No. XII of 1999.

29 See Act No. XVIII of 2000. The MCA was preceded by the short-lived Telecommunications Regulator set up under Act No. XXXIII of 1997, whereby the regulatory functions of this regulator was assumed by the MCA in 2000.

30 See Act No. XXV of 2000.

31 See Act No. XXV of 2015.

32 See Act No. VI of 2011, which established the MCCAA whilst amending the Competition Act and the Consumer Affairs Act. 33 See Chapter 510, Article 5(4). Article 2 of Chapter 510 lists the ‘entities’ as being the Office for Competition, the Office for Consumer Affairs, the Technical Regulations Division and the Standards and Metrology Institute.

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id-dritt ten other members, two of whom are chosen after consultation with specific interest groups, whereas the other members are chosen amongst persons from diverse professions. All the members are chosen by the Minister for a term of between one to three years, and are eligible for reappointment.

Presently, the chairman is appointed on a full-time basis whilst all the other members are appointed on a part-time basis.34 The main duties of the MCCAA Board relate to the determination of policies and to ensure that the various MCCAA entities have the necessary resources and financial independence to perform their respective functions set out by law.35The Coordination Committee is composed of the MCCAA Chairman and of the Directors General of the four MCCAA entities. The Committee serves to coordinate the implementation of the policies of the MCCAA as established by the MCCAA Board, and serves as the point of contact between the Board and the entities.36 In so far as the MCCAA entities are concerned, the law states that the functions of the MCCAA are achieved ‘through the responsibilities vested in the respective entities’, adding that each Director General heading each entity ‘shall act independently and autonomously, free from the direction or control of any person or authority without prejudice to article 12’.37 In doing so, the Directors General are required to implement the policies set by the MCCAA Board and hence give effect to government policy. To this extent, the Directors General are subject to the overall supervision and control of the MCCAA Board.38

34 The law does not state whether such appointments should be on a part-time or full-time basis. To date since the establishment of the MCCAA in 2011, the Chairman has always been appointed on a full-time basis, whereas all the other members have been appointed on a parttime basis.

35 See Chapter 510, Article 11(1). Other functions of the MCCAA Board include the approval of MoUs and monitoring the national accreditation body.

36 ibid Article 5.

37 ibid Article 7(3). Article 12 of Chapter 510 deals with the relations between the MCCAA on the one hand and the Minister and the Permanent Secretary within the Ministry responsible for the MCCAA. 38 ibid Article 7(3).

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3. Issues Consequential to the Current Market Regulatory Set-Up. The current market regulatory set-up in Malta with a ‘general’ market authority in the shape of the MCCAA, working alongside different sectorspecific regulators, has, from time to time, given rise to issues, primarily relating to the respective competencies of the public authorities concerned.

Issues of competence have, in particular, occurred in relation to the regulation of utilities where the borderline between the respective competencies is not always clear-cut. This has especially occurred in relation to the handling of consumer related issues and to some extent in competition issues where the services investigated had elements involving both ex ante and ex post regulation.

Hence, in the electronic communications market, the sector-specific regulator - the MCA – at law, enforces various specific consumer rights relating to, amongst others, minimum information that must be included in subscriber contracts and billing information.39 Similarly, in the case of the energy markets, the REWS enforces various norms intended to protect consumers.40 These and other sector specific norms have given rise to some duplication of regulatory oversight between the MCCAA on the one hand, and the sector-specific regulator on the other.

One such instance occurred in 2011, when the MCCAA issued a decision whereby it established the minimum number of television channels that providers of television distribution services could change in their channel line-up, in any one calendar year, without the need of providing their clients with the option of opting-out of the subscription contract without incurring any penalty or expense.41 This decision had contradicted a previous decision taken by the MCA, whereby the MCA imposed an administrative fine on a provider of such services for arbitrarily removing four channels all at one go.42 39 See Part VI of the Electronic Communications Networks and Services (General) Regulations, S.L. 399.28. The reference to ‘end-user’ is also used to factor in business consumers.

40 See Electricity Market Regulations, S.L. 545.13, Regulations 8 and 21.

41 See Press Release dated 7 September 2011 issued through the Department of Information, which was entitled ‘TV Service providers required to amend terms and conditions offered to clients’.

42 See Antoine Grima,‘Regulatory Consistency benefits consumers’ The Times of Malta (14 October 2011).

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id-dritt At times, possibly even more challenging, there were also certain regulatory competition issues, where the precise line of demarcation between on the ex-post competition role of the MCCAA on the one hand, and the exante role of the sectoral regulator on the other, was not clear thereby giving cause to conflicting interpretations as to which authority should have dealt with the regulatory issues that arose. This lead to regulatory uncertainty and consequential protraction in dealing with the resulting issues.43 It is pertinent here to note that at one stage the Government did, in relation to competition issues, actually consider assigning ex-post competition powers to the MCA in relation to the sectors falling under its remit. In fact, a consultation with stakeholders was issued in 2007 (‘2007 Consultation’).44 Significantly, in this consultation, the Government, in concurrence with the CCD and the MCA, argued that the then present regulatory set-up concerning the regulation of competition insofar as the communications sectors45 regulated by the MCA was concerned, was then deficient on various grounds. These grounds included the lack of comprehensive ex ante control, issues caused by parallel enforcement procedures by the sectoral regulator and by the then Office of Fair Competition, lack of effective sectoral competition enforcement and the impact of economies of scale, given that Malta,due to its small size and limited human resources, could not reasonably expect to have two authorities duplicate to some extent similar regulatory investigations.

In the consultation, it was argued that the combination of these elements was conducive to a situation where effective and timely intervention in the

43 See for example judgement 202/2012 Melita p.l.c. vs L-Awtorità ta’ Maltadwar il-Komunikazzjoni, The Administrative Review Tribunal 13 June 2013, with special reference to pages 20-38 thereof, and the subsequent appeal 202/2012/1 Melita p.l.c. vs L-Awtorità ta’ Malta dwar il-Komunikazzjoni, Court of Appeal (Civil, Inferior) 30 September 2015. The Court of Appeal confirmed the judgement of the Tribunal - rejecting the argument made by the MCA that the Tribunal did not interpret correctly the distinction between the application of ex ante remedies and ex post competition regulation. See in particular pages 37 et seq. of the aforesaid judgement.

44 See consultation paper dated 5 April 2007 published by the then Ministry for Competitiveness and Communications, <https://www.mca.org.mt/consultations-decisions/effective-enforcement-competition-law-communications-sector>.

45 Unless stated otherwise, reference to the ‘communications’ sectors means the communications sectors falling within the remit of the MCA, namely electronic communications, postal services, and electronic commerce.

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Commercial Law resolution of anti-competitive allegations was not always forthcoming.46 Furthermore, the Government contended that there was a need to provide legal clarity where the same conduct by an undertaking constituted acts in breach of both ex ante regulatory obligations imposed by the sectoral regulator, and of ex post competition norms enforced by the Competition Office.47 These considerations remain relevant even now, given that the only substantive change in the regulatory set-up as it was in 2007 (when proposals were made in this regard for the MCA to have ex post powers under Competition Law), is that the role of the CCD was assumed, in 2011, by the MCCAA, with broadly similar functions in relation to ex-post competition which functions now reside with the DG (Competition). Regrettably, the proposals in the 2007 Consultation were not taken forward by Government, therefore leaving in abeyance the possibility that uncertainty can, from time to time, surface with regard to certain competition issues that traverse the remits of both the MCCAA and the sectoral regulator.48

4. A ‘Super’ Market Authority for Malta?

As things stand various reasons warrant a review of the current market regulatory set-up. The concept of subjecting certain sectors to a combined form of regulation by the MCCAA, and by a sector specific regulator, where one entity deals with certain aspects of market regulation and the other entity with other aspects, needs to be re-evaluated. As discussed earlier, one issue that has occasionally undermined the effective regulation for certain sectors is the overlap of roles which arises where it is not clear where the remit of the sector-specific regulator ends, and that of the MCCAA begins.

From time to time, different solutions have been considered to deal with this issue. One solution is the adoption of memorandums of understanding (‘MoUs’), delineating the procedure to be followed when issues may transverse the regulatory remit of both the sectoral regulator and the 46 ibid 6 -8.

47 ibid 8 et seq.

48 No official reason was given why matters were not taken forward. However, one factor might have been that most of the undertakings in the telecoms market had voiced their reservations about the proposals made in the 2007 Consultation. See also the MCA annual report and financial statements for 2007 on page 19, <https://www.mca.org.mt/sites/default/files/ Annual%20Report/past/reports/2007.pdf>.

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id-dritt MCCAA.49 Another option is to introduce a regime empowering the sectoral regulator with ex-post competition and general consumer law powers in so far as these impact the sectors it regulates. This is an option which, to some extent, has been adopted in other countries with some success.

Hence, in the UK, the Office of Communications (‘Ofcom’) in relation to the communications sectors it regulates, has both ex-post competition powers, and enforces various consumer protection laws,50 including notably the UK Consumer Rights Act.51 Adopting a similar solution to that taken in the UK whereby certain sectoral specific regulators are empowered to enforce Competition Law and Consumer Law in relation to the sectors they regulate, may be a possible solution.

This said, though such a regime seems to work fairly well in the UK, one questions the feasibility of adopting such a solution for Malta. Whilst such a regulatory set-up could serve to address possible overlap between the MCCAA and the various sector-specific regulators, there are other considerations which need to be made. Unlike the UK, Malta owing to its small size, is saddled with limited financial resources, and has limited human resources possessing the expertise required in the diverse sector-specific markets. Having such limited resources spread over two or more regulatory entities does not, in practical terms, make much sense. There is, therefore, a strong case to carefully consider having in place a Comprehensive Market Authority – a ‘super’ market authority - which embodies also the regulatory role of some of the existing sector-specific regulators.

It is relevant, in this regard, to consider briefly the experience of other countries – some of which are much larger than Malta – that decided to establish a comprehensive market authority in lieu of an earlier regulatory regime whereby the national competition and consumer authorities operated alongside sectoral sector regulators, as is the case with Malta at present. The example of The Netherlands is an apt example. Until 2012, The Netherlands 49 See for example Memorandum of Understanding between The Malta Communications Authority and the Malta Competition and Consumer Affairs Authority relating to competition matters at <https://www.mca.org.mt/sites/default/files/notices/mou-presentaton-to-electronic-communications-forum.pdf>.

50 See Ofcom Annual Report 2018/19 Making communications work for everyone at sections 1.5 and 1.6. <https://www.ofcom.org.uk/__data/assets/pdf_file/0017/112427/Final-Annual-Plan-2018-19.pdf>.

51 The UK Consumer Rights Act, 2015 deals with amongst other matters, unfair commercial practices and unfair contract terms.

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Commercial Law had a market regulatory set-up similar in many ways to what Malta currently has in place, with national competition and consumer authorities working alongside specific sector regulators. In 2013, The Netherlands legislator combined the regulatory roles of diverse regulatory bodies by establishing the Autoriteit Consument & Market (‘Authority for Consumers and Markets’ or ‘ACM’), with regulatory oversight for competition issues, consumer protection, and utility regulation in the telecommunications, postal services, transport and energy sectors.52 Similarly, in Spain, the Comisión Nacional de los Mercados y La Competencia (‘CNMC’) was set in 2013, with responsibility for competition and consumer protection and for utility regulation assuming the regulatory functions of, amongst others, the former energy and telecommunications regulators.53 The establishment of a comprehensive regulatory market authority, if anything, makes even more sense for smaller countries that have more limited resources. Hence, in the case of Estonia, the Estonian Competition Authority also regulates various utilities including energy, postal services, public water supply, and railways.54 The adoption in Malta of a ‘super’ market regulatory authority would be conducive to the better rationalisation and use of the available human resources, thereby minimising regulatory costs, thus providing for more clarity in regulation by having in place one focal point of reference in relation to utility regulation which eliminates issues of conflict of competence between the diverse regulators.

Hence, tasks relating to public relations, management of human resources, and enforcement, could be better managed at a lesser cost in a unified regulatory environment having a comprehensive remit to deal with all issues relating to economic regulation, including ex-ante and ex-post competition regulation, and issues relating to consumer protection relating to the diverse utility sectors.

52 In the case of The Netherlands prior to the establishment of ACM in 2013, there was in place a converged utility regulator for the communications sector, whilst the former Netherlands Competition Office was also responsible for energy regulation, see Authority for Consumers & Markets, ‘Our duties’ <https://www.acm.nl/en/about-acm/mission-vision-strategy/our-tasks> ,and ‘New Dutch “Authority for Consumers and Markets” becomes operational’ Stibbe (2 April 2013) <https://www.stibbe.com/en/news/2013/april/new-dutch-authority-for-consumers-and-markets-becomes-operational> 53 CNMC Comisión Nacional de los Mercados y la Competencia, ‘What is the CNMC?’, <https://www.cnmc.es/en/sobre-la-cnmc/que-es-la-cnmc>.

54 Republic of Estonia Competition Authority, ‘Activities and Structure’, <https://www. konkurentsiamet.ee/en/about-us-contacts/organization/activities-and-structure>.

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id-dritt In taking such a proposal forward, one point that has to be determined relates to the identification of those sectors that currently have their own sector specific regulators, and over which a super market authority in Malta would therefore assume regulatory oversight? The general approach taken by those countries that have chosen to adopt such a regulatory solution has been to extend the remit of the competition and consumer authority to include one or more of the utilities previously regulated by a sector specific regulator, but not to factor other sectors. One singular fact is that in the case of financial services, the need for a focused regulator has invariably been maintained, even in those countries that have opted for a comprehensive competition and consumer affairs authority empowering it with the regulatory remit over sectors which previously had a dedicated regulator.

The author recommends that a similar approach is taken in Malta. The financial services sector is, by its very nature extremely complex, and the effective and efficient regulation of this sector impacts the well-being of the national economy substantially, and consequently merits a well-resourced and focused regulator. Conversely, some of the utility sectors can be effectively regulated by a flexible super regulatory authority which harbours within it specialised units each dealing with different utilities.

Whilst each utility sector has its peculiarities, there are various similar aspects that can be regulated by one regulatory body. Increasingly, many countries are opting for a unified regulatory approach in dealing with the regulation of most utilities either by establishing a competition and consumer authority whose remit includes the regulation of various utilities, or else by creating a general utilities regulator.55 There is no reason why a similar regulatory approach should not also succeed for Malta.

55 See for example the Bundesnetzagentur whose remit includes electricity, gas, telecommunications, posts, and railways. Bundesnetzagentur, ‘About the Bundesnetzagentur’, <https:// www.bundesnetzagentur.de/EN/General/Bundesnetzagentur/About/AboutTheBundesnetzagentur_node.html;jsessionid=BC65C7658413D3A74F28E851F0830610>; or the Institut Luxembourgeois de Régulation (‘ILR)’, which regulates electronic communications, postsand energy services. Institut Luxembourgeois de Régulation, ‘A propos de l’Institut’ <https://web.ilr. lu/FR/ILR/A-propos-de-lInstitut>.

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5. The Headship of a Super Market Authority for Malta.

The experience of other countries which have in recent years established a comprehensive market regulatory body, can serve to indicate how a super market authority could be structured in Malta. The ACM in The Netherlands is headed by a board composed of a chairman and two other members, all of whom are appointed on a full-time basis, which board in turn has oversight over various ‘departments’ dealing separately with consumer protection, competition issues, and with different utilities notably energy, telecommunications, transport, and postal services.56 In the case of the CNMC in Spain, the regulatory decisions are taken by a council composed of ten members. This Council conducts its business either in plenary sessions, or else, through smaller committees composed of select members of the Council. In this regard, two committees have been established, one on competition issues and the other dedicated to the regulatory oversight of the diverse utilities. The Council is further supported by various investigative units dealing with amongst others energy, telecommunications and the audio-visual services, postal services, and transport.57 The author proposes that the headship boards of the MCCAA, the MCA, and the REWS are done away with, and replaced with one board composed of five full-time appointees, chosen primarily because of their technical knowledge and experience in one or more of the regulated utilities and, or activities. The appointees must be executive directors, individually responsible for one or more specific areas in relation to which they have proven expertise. Such a board would ultimately be responsible for any executive decisions taken and for the overall administration of the new authority, with the faculty of delegating the exercise of some of its powers to dedicated units within its overall structure.

One way through which such a proposal could be implemented is by building on the current MCCAA headship set-up, by revising the composition of the headship, with the ultimate aim of composing such headship of fulltime appointees enjoying executive powers and who are experts in their respective areas of responsibility. The current MCCAA headship set-up 56 Authority for Consumers & Markets, ‘Organizational structure’ <https://www.acm.nl/en/ about-acm/our-organization/organizational-structure>.

57 CNMC Comisión Nacional de los Mercados y la Competencia, ‘What is the CNMC’, <https:// www.cnmc.es/en/sobre-la-cnmc/que-es-la-cnmc>.

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id-dritt should therefore be changed by having the Board of Governors composed solely of a chairman and four executive director generals appointed on a full-time basis. The appointees should be chosen solely on the basis of their knowledge and experience of the sector or sectors that they are required to oversee, and, in relation to which they are required to take executive regulatory decisions.58 In line with what is being proposed, the headship of a restructured MCCAA amalgamating the REWS and the MCA would therefore be composed of a board of governors consisting of the various director generals responsible for the diverse areas regulated by the new ‘super’ market authority. In doing so, to emphasise that a new overall set-up is being introduced, and to give this new ‘super’ market authority its own unique identity, a new and simple nomenclature such as the ‘Malta Market Authority’ should be adopted.

One crucial point which needs to be clarified in this regard is the remit of each of the executive directors-general making up the proposed headship board. Again, by looking at the experience of other countries that have adopted a comprehensive regulatory model similar to what is being proposed, one notes that in the case of the ACM, the Dutch legislator opted for a small board of three members who are collectively and ultimately responsible for all the regulatory decisions taken by the ACM. The ‘Establishment Act of the Authority for Consumers and Markets’, in setting up the headship board, states that the ACM is composed of three members, one of whom is the chairperson. This law however does not designate any specific regulatory functions to the individual members of the headship board.59 It is relevant, here, to note that the ACM, subsequent to its establishment, issued an administrative decision containing the rules on its organisation providing for the various departments making up the ACM. The Departments established as a result of this order include, amongst others, the Consumer Department, the Energy Department, the Telecommunications, Transport and Postal Services Department, and the Competition Department.60 58 See the Malta Competition and Consumer Affairs Authority Act, Chapter 510 of the Laws of Malta, Part II thereof.

59 ‘See section 3 thereof, Autoriteit Consument & Markt, ‘Establishment Act of Authority for Consumers and Markets’ <https://www.acm.nl/sites/default/files/old_publication/publicaties/13190_establishment-act-of-the-netherlands-authority-for-consumers-and-markets. pdf>.

60 Other Departments established by this decision are the Policy and Communications Department, the Legal Department, the Corporate Services, and the Office of the Chief

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Commercial Law Conversely, in the case of CNMC in Spain, the headship set-up is more complex where the regulatory functions are exercised mainly through a Council which acts either in plenary sessions or else through smaller committees acting under aegis of the Council, with two committees supporting the Council; one dealing with competition and the other dealing with the oversight of the various regulated sectors including the different utilities.61 The Council, in the exercise of its functions, is supported by four investigative offices dealing respectively with competition, energy, telecommunications and audiovisual, and transport and postal sectors.62 The preference of the author is to establish a headship structure similar to that adopted for the ACM with some important modifications. Given the extent of the remit of the proposed ‘super’ market authority dealing with the regulation of various utilities, and with general competition and consumer protection issues, having in place a headship board of three persons would be too small. On the other hand, the author believes that it is important to avoid having relatively large boards as these at times may not prove to be very effective and firmly believes that the emphasis should be on a small board composed of full-time ‘expert’ appointees. The author therefore suggests that there should be in place a board of five members, whereby the Chairman would be responsible for the overall general administration and regulatory oversight, and where each of the other members would be responsible for specific regulatory aspects. This would include one member assuming the regulatory oversight currently falling within the remit of the REWS – specifically, the regulation of energy and water services -, another member having the regulatory oversight of the diverse communications sectors currently under the remit of the MCA, whilst the remaining two Economist. See Autoriteit Consument & Markt, ‘Decision of the Netherlands Authority for Consumers and Marketsof the 2 April 2013, ACM/DJZ/2013/200833, containing rules on the organisation, mandate, authority,and authorisation of the Netherlands Authority for Consumers and Markets(2013 Decision on the organisation, mandate, authority and authorization of ACM) at <https://www.acm.nl/sites/default/files/old_publication/publicaties/14646_2013-decision-on-the-organization-mandate-authority-and-authorization-of-acm.pdf>.

61 See CNMC Comisión Nacional de los Mercados y la Competencia, ‘What is the CNMC’, <https://www.cnmc.es/en/sobre-la-cnmc/que-es-la-cnmc#estructura>. The members of the Council do not appear individually to be responsible for any specific sector.See Law 3/2013 of June 4, on the creation of the National Commission of Markets and Competition, Articles 14 and 15 at Agencia Estatal Boletín Oficial del Estado, ‘Consolidated Legislation’ <https://www.boe.es/buscar/act.php?id=BOE-A-2013-5940>.

62 See CNMC Comisión Nacional de los Mercados y la Competencia, ‘Organigrama’<https:// www.cnmc.es/sobre-la-cnmc/organigrama>.

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id-dritt members would respectively be responsible for competition and consumer affairs.

The main advantage of such set-up is that regulation would be conducted within a comprehensive framework, avoiding issues of competence between different regulators by providing one regulatory focal one for businesses and consumers alike, whilst having in place focused executive directors-general heading different units responsible for the diverse areas falling within the remit of the ‘super’ market authority. Such a set-up should, in addition, come at a lower cost to the State, since many support services such as corporate and public relations services, which are currently replicated in the MCCAA, the MCA and the REWS, would be provided through one unified service operating within the proposed new set-up.

Finally, one other important consideration is the relationship between the headship of such a super market authority and the Government.

Increasingly, the EU, through various norms, is emphasising the importance that regulatory market authorities are independent from third parties, and that they should not take instructions in the exercise of their regulatory functions from any other body, including notably government.63 Significantly, the EU, in these same norms, requires Member States, and, therefore, Malta, to ensure that the persons appointed to head such authorities are ‘selected, recruited or appointed according to clear and transparent procedures laid down in advance in national law’.64 Equally important within the context of ensuring the autonomy of the headship of such authorities, the EU requires that Member States have in place norms under national law that prohibit the arbitrary removal of any members of the headship.65 Similar norms in line with EU requirements must be reflected in relation to the headship of the proposed super market regulator.66 Doing otherwise 63 See for Directive (EU) 2019/1, Article 4 which Directives relates to the role and enforcement tools of national competition authorities. Similarly also see Directive (EU) 2018/1972 Article 8 which relates to the electronic communication sector, and Directive (EU) 2019/944 Article 57 which relates to the electricity services sector.

64 See Directive (EU) 2019/1, Article 4(4), Directive 2018/1972 Article 7(1) and Directive (EU) 2019/944 Article 57(5)(e).

65 See for example Directive (EU) 2018/1972 Article 7(3). This measure in part is already reflected under Chapter 418 as per Article 3(6).

66 At the time of writing, Malta has yet to implement many of the norms relating to the independence of the headship in particular those relating to the mode of selection and the criteria

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Commercial Law would not only be in breach of EU norms, but, more importantly, undermine the autonomous and effective regulation of the market. Whilst it is important that the headship acts in line with general government policy, it is equally important that it is completely autonomous in undertaking those regulatory measures which it would consider are necessary in any given situation.

Obviously, establishing such a super market authority entails overcoming various challenges, not least convincing the powers-that-be of the overall benefits to be attained. The initial reaction to such a proposal may, from many quarters, be negative. Some may object to what may be perceived to be some sort of regulatory monster. Possibly, officers working with current regulatory bodies which such a super authority would replace, may be concerned about their own personal status and positions. All these concerns need to be adequately addressed. The bottom line, however, in deciding whether or not to implement such a set-up, is ultimately to determine whether it will lead to more effective and efficient regulation for the overall benefit of Malta. It is the firm belief of the author that, with the required goodwill and support of all concerned, it can fulfil such expectations.

on the basis of which the persons making up the headship are chosen. The applicable norms under Directive (EU) 2018/1972 must be implemented by the 21 December 2020, those under Directive 2019/944 by the end of 2020, and those under Directive (EU) (E) 2019/1 by the 4 February 2021.

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Constitutional and Administrative Procedure

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Frances Camilleri-Cassar Procedural obstacles (A) in a Human Rights action under Article 46 of the Constitution of Malta; (B) in a Judicial Review under Article 469A of the Code of Organisation and Civil Procedure

Frances Camilleri-Cassar is a Full Professor in the Faculty of Laws. She is a social policy expert by training, with a Ph.D. from the School of Sociology and Social Policy at the University of Nottingham. Continuing interest in academic professional development has led her into the study of Law, and in 2020 she was awarded the H. Dip. L.P. magna cum laude from the University of Malta. Professor Camilleri-Cassar is a widely published qualitative methods researcher, and her most recent monograph is titled Academic Research Methods for the Law Student. A second edition of the monograph is currently work-in-progress. She is the Chair of the Faculty Research Ethics Committee, and an active Member of the Human Rights Platform of the Faculty of Laws.

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1. Introduction

T

he laws of Malta have been unwavering in cases that seek redress on the violation of human rights. Article 46 of the Constitution of Malta sets out detailed provisions for the enforcement of protective measures for persons alleging the infringement of their fundamental rights.

The proviso to Article 46(2) of the Maltese Constitution is reproduced verbatim under Article 4 of the European Convention Act (ECA) in Chapter 319 of the Laws of Malta, and describes the procedure for the enforcement of Human Rights and Fundamental Freedoms. In parallel, Legal Notice 279 of 2008 establishes good order rules for Court practice and procedure concerning constitutional matters.

In a demand for judicial review under Article 469A of Chapter 12 of the Laws of Malta, the Court in its civil jurisdiction, seeks to establish whether, when issuing an administrative act, the public authority in question, exercised its powers within the limits set out by law, and did not act ultra vires.

Public authority means the Malta government, the ministries and departments, local authorities, and any ‘body corporate’ established by law.

An administrative act includes the issuing by a public authority of any order, licence, permit, warrant, authorisation, concession, decision or refusal to any demand of any member of the public, but does not include any measure intended for internal organisation or administration within the said authority. This part of the provision draws on French administrative law, however, its interpretation remains ambiguous.

This paper is divided into two parts. In the first part, it discusses Court practices, when filing a human rights action under Article 46 of the Constitution of Malta. The study also describes a fundamental juristic concept in national human rights law viz. the maxim of juridical interest. In the second part, the study comments upon Court practices when filing a judicial review set out under Article 469A of the Code of Organisation and Civil Procedure. Both parts in the paper focus on procedural obstacles when aggrieved individuals seek redress to a violation of human rights, and in determining before the Court whether or not an administrative act is according to law.

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2. Procedural obstacles under Article 46 of the Constitution of Malta Proceedings concerning Constitutional matters before the Civil Court, First Hall1 and the Constitutional Court2 shall be instituted by an application, rikors.

In parallel, Regulation 3 of Legal Notice 279 of 2008 provides the contents of application provided under Articles 46 and 95 of the Constitution, and under Article 4(1) of the European Convention Act. Regulation 3(3) of Legal Notice 279 of 2008 provides that: the application before the Constitutional Court shall state clearly and concisely the circumstances out of which the question arises, the demand, and the provision or provisions of the Constitution.3 In case of default in the requirements of an application, the Court shall, at its discretion, especially if it is of the opinion that the redress sought by the applicant is of a serious nature, not render the application null, but order the applicant to file a note with the required particulars.4 In sub-article (1) of Article 46 of the Constitution of Malta, the law states that if a person alleges that any of the provisions in Articles 33 to 45 of the Maltese Constitution ‘have been, is being or is likely to be contravened, in relation to him’, he may apply to the Civil Court, First Hall, for redress.5 Moreover, sub-article (2) of Article 46 of the Constitution of Malta provides that the Court: may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said Articles 33 to 45 (inclusive) to the protection of which the

1 Constitution of Malta, Article 46(1), and European Convention Act, Chapter 319 of the Laws of Malta, Article 4(1).

2 Constitution of Malta, Article 95(2).

3 Legal Notice 279 of 2008 (S.L. 12.09), Court Practice and Procedure and Good Order Rules, Regulation 3(3).

4 ibid, Regulation 3(5).

5 Constitution of Malta, Article 46(1).

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id-dritt person concerned is entitled.6 An application for the redress of a human rights violation cannot be made directly to the Constitutional Court, but must first proceed before the Civil Court, First Hall. However, in exceptional cases of an alleged serious breach of the law, the Court may decide to allow the case to proceed directly to the Constitutional Court. For instance, a person may allege a serious violation during an election campaign, such as the sale of voting documents. In such a situation, three days after the publication of the official results of elected candidates, an application shall be made directly before the Constitutional Court for the results of the general elections to be declared null and void.

2.1 Juridical interest The Constitution of Malta provides no actio popularis in cases of human rights. Even if a person challenges a law, the plaintiff requires proof of juridical interest. Unlike the European Court of Human Rights, juridical interest is narrowly interpreted in constitutional cases of human rights in Malta. Article 46(1) of the Constitution of Malta establishes that a person who alleges a violation of human rights, must prove to the Court that the contravention of which redress is sought, must be strictly ‘in relation to him’.7 This means that only the person directly affected or aggrieved in a juridical sense, may file a human rights action. Juridical interest in the matter of a litigation is a fundamental requirement in Constitutional proceedings in Malta’s Courts of Law.8 The Maltese Courts have attributed three elements to the interest of a plaintiff in a case of human rights: the interest must be juridical, it must be direct and personal, and it must be actual. The interest must contain the existence of a right, and the need to safeguard that right from any attempts by others from infringing upon it. For a person to have interest in filing a Court case, that interest or motive of the claim must be concrete and existing.

6 ibid, Article 46(2).

7 ibid, Article 46(1).

8 Tonio Borg, ‘Juridical Interest in Constitutional Proceedings’ (GħSL Online Law Journal, 2017) <http://lawjournal.ghsl.org/en/articles/articles/64/juridical-interest-in-constitutional-proceedings.htm>.

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Constitutional and Administrative Procedure In the case of Aquilina vs Demicoli9, the plaintiff claimed that defendants were his neighbours living in the same block of flats belonging to the Housing Authority. The matter of the dispute arose after the plaintiff alleged that his neighbours were breaking their contract with the Housing Authority by keeping animals in each of their respective flats. The plaintiff further claimed that as a consequence, the neighbours disturbed his personal peace and quiet, which, he argued, were lawfully his right to enjoy.

However, the Housing Authority, as witnesses to the claim, testified in Court that a random check in the block of flats concerning the dispute, found no evidence of animals residing with the defendants. In its final judgment, the Court declared that the plaintiff lacked the three essential elements required in constitutional proceedings, viz. a direct, personal and actual interest in the claim as the plaintiff was not the ultimate beneficiary and direct creditor to whom his neighbours were financially liable. Hence, the Court ruled that the plaintiff held no juridical interest in the case, and the dispute was dropped.

2.2 Prescription Human rights cases under Article 46(1) of the Constitution of Malta carry no prescription period. For example, in Partit Nazzjonalista et vs Electoral Commission et10, the Court ruled that an action on a violation of the Human rights and Freedoms under Articles 32 to 45 of the Constitution of Malta, as well as under the European Convention Act Chapter 319 ‘is not restricted by any period of forfeiture or prescription’.

This provision applies under both the Maltese Constitution and the European Convention Act, Chapter 319 (ECA). However, Article 7 under the ECA presents an obstacle. The subject of an action must not relate to an alleged violation of human rights that occurred prior to 30 April 1987 when Malta ratified the right to individual petition under Article 34 of the European Convention of Human Rights.

9 309/2009 Mario Aquilina vs Carmen Demicoli et, Civil Court (Firsth Hall) 12 December 2013.

10 26/13 Partit Nazzjonalista et vs Electoral Commission et, Civil Court (First Hall) 5 February 2015.

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id-dritt However, the Courts of Malta have decided that in a case where the alleged infringement dates back to prior 1987, and the damages remained continuous post 1987, the plaintiff has a right to invoke the protection of the Convention.

For example, in a situation where an expropriation order was served on the plaintiff before 1987, while the actual purchase and determination of compensation through a public deed with the Commissioner of Lands is still pending, then it is possible for the aggrieved individual to seek redress in a Constitutional case.

2.3 Flexibility Regulation 6 of the Rules of Court concerning constitutional matters states that once a case is scheduled for hearing, the Court must ensure that ‘the hearing and disposal of the case shall be expeditious’.11 In practice, this Regulation is merely a dead letter and a procedural obstacle. Constitutional cases in Malta are known to go on for decades on end without a final ruling.

While cases in the Civil Court will strictly adhere to the remedies filed by the applicant, the Court of Constitutional Jurisdiction may, at its discretion, exercise flexibility in its hearings.

For instance, during the proceedings, the Constitutional Court may grant an unrequested remedy12 or may find a violation not indicated in the rikors.

‘Unlike the case of civil proceedings where the ultra petita principle applies, in Constitutional cases, the flexibility rule applies’.13 The Constitutional Court may rule that a case of freedom of expression is more about freedom of association, or freedom of assembly, and it remains at the discretion of the Court to change the parameters of the case.

Flexibility in the Constitutional Court emerges from a liberal interpretation of the jurisdiction of the Court that cases of human rights do not only concern the aggrieved plaintiff, but are also of interest to the Court itself, which strives to seek justice, and protects human rights.

11 Legal Notice 279 of 2008 (n 4) Regulation 6.

12 Edwin Bartolo et vs Acting Registrar of Courts noe et, Constitutional Court 15 February 1991.

13 Tonio Borg, A Commentary on the Constitution of Malta (Kite Group 2016) 244.

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Constitutional and Administrative Procedure A landmark judgement 14 was declared by the Court following the results of the 2013 general elections. Due to an error in voting counts, and in order to ensure that the government elect enjoyed a parliamentary majority, the Court decided to make available an exceptional remedy in the award of parliamentary seats.

2.4 Legal person Both physical and legal persons may file an action on an alleged violation of human rights. However, it was decided by the Courts of Law in Malta that since local councils are a statutory local government authority, they are barred from filing an application for a human rights action. This may seem a mere technicality, however, the ruling presents serious implications for filing a constitutional case against the government or government departments.

Article 181B(1) of the Code of Organization and Civil Procedure provides that: the judicial representation of the government in judicial acts and actions shall vest in the head of the government department in whose charge the matter in dispute falls.15 The representatives of the Government in all judicial acts and actions include the Accountant General in cases which concern the collection of public revenue, the Principal Permanent Secretary for actions involving State employment, and the Director of Contracts for actions related to contracts of supplies or of works with the government.16 Additionally, sub-article (2) under Article 181B of the Code of Organisation and Civil Procedure provides that the government representative in all judicial acts and actions shall be the Attorney General. The law states that: the Attorney General shall represent Government in all judicial acts and actions which owing to the nature of the claim may 14 526/2013/1 Claudette Buttigieg vs Electoral Commission, Constitutional Court 13 March 2013 and 525/2013/1 Frederick Azzopardi vs Electoral Commission Constitutional Court 13 March 2013.

15 Code of Organization and Civil Procedure, Chapter 12 of the Laws of Malta, Article 181B(1).

16 ibid.

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id-dritt not be directed against one or more heads of other government departments.17 When challenging an infringement of the law, aggrieved applicants must always sue the Attorney General.

2.5 Reference procedure A Constitutional case under human rights may be filed in two ways: either by an application, rikors, or through the reference procedure, referenza. The provision in Article 46(3) of the Constitution of Malta states that: If in any proceedings in any Court other than the Civil Court, First Hall, or the Constitutional Court, any question arises as to the contravention of any of the provisions of the said articles 33 to 45 (inclusive), that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious.18 For example, whether a case is filed in the Court of Magistrates, the Civil Court, or a Criminal case by jury, the Court must, on all accounts, be satisfied that the raising of the issue is not frivolous or vexatious. If the Court is satisfied that the aggrieved person warrants a hearing, it will refer the case to the Civil Court, First Hall, and await its decision. Applications of appeals from decisions of other Courts, must be filed within twenty days from the Court ruling and final judgement, and the defendant must file a reply in his defence within eight working days from service.

An example where the Court applied the reference procedure is the case of Police vs Ganni Camilleri et.19 At the time of Malta’s Independence from Britain, a legal Proclamation by the Governor was declared to the general public, prohibiting any kind of public manifestations during the official Independence celebrations on which the criminal charge was based.

The defendant’s advocate argued that the Governor’s Proclamation was in violation of the Constitution of Malta, and in breach of fundamental human 17 ibid, Article 181B(2).

18 Constitution of Malta, Article 46(3).

19 Police vs Ganni Camilleri et, Constitutional Court 23 April 1965.

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Constitutional and Administrative Procedure rights. The Criminal Court was satisfied that the case in question was not frivolous or vexatious, and referred the rikors to the First Hall, which ultimately also decided against the defendant. Subsequently, the defendant appealed the decision by the First Hall, however, the Constitutional Court also ruled against the defendant, and the case was referred to the Court of Magistrates as a Court of Criminal Judicature. This was the first human rights case before the newly set up Constitutional Court in Malta in 1964.

Another example to demonstrate the Court’s application of the reference procedure is the case Police vs Massimo Gorla20, a foreign national invited to Malta by the Party in Opposition, to address a public meeting for which he was accused of violating the Foreign Interference Act 1982. The case was taken to the Constitutional Court, which ultimately ruled that the aggrieved individual could never have been in breach of the Foreign Interference Act, as the law per se was deemed unconstitutional, and therefore not valid.

Today, the application of the reference procedure for a human rights action regulated by Article 46(3) of the Constitution of Malta has lost popularity, largely due to controversy among jurists in the interpretation of the provision.

For example, if an applicant to a case requests the reference procedure, and the court refutes the case on grounds of being frivolous and vexatious, the aggrieved person cannot appeal the judgement, and file a separate rikors.

In most cases, applicants file a separate application to avoid the risk that their reference is rejected by a magistrate, and any human rights redress blocked perpetually. The reference is the only real procedure whereby the continuance of a case is blocked until the constitutional issue is decided. A separate application does not.

2.6 Prohibitory injunction Precautionary acts, atti kawtelatori, safeguard the rights of any individual before a case commences, or before a judgment is delivered. The acts are provided in Articles 829 to 877 of the Code of Organization and Civil Procedure Chapter 12 of the Laws of Malta. All warrants are issued by the Court, and any person may file a claim on the strength of a sworn application during the proceedings in a constitutional case. The Court in its Constitutional 20 Police vs Massimo Gorla, Constitutional Court 25 October 1985.

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id-dritt Jurisdiction protects the fundamental human rights of any applicant.

For instance, in a deportation case, where the Civil Court suspects an infringement of the defendant’s human rights, the police may be ordered by the Court to await the final judgement before deportation. Alternatively, the Court may invoke a warrant of prohibitory injunction, mandat ta’ inibizzjoni, to protect the rights of the defendant from any prejudice, until the case is decided. This is to demonstrate the strength of the Constitutional Court, and absolute discretion reflected in the provision of Article 46(2) of the Constitution, which provides that it may ‘make such order, issue such writs, and give such directions, as it may consider appropriate’.

Also, if the human rights of an accused are breached in a trial by jury, the Constitutional Court may order a repeat of the jury.

2.7 Non-pecuniary damage For a number of years, non-pecuniary damage, danni morali, or danni mhux pekunjari, in any case before a Court, were only accepted under three circumstances viz. damages awarded for libel under the Press Act 1974, damages amounting up to five hundred euro21 awarded by the Consumer Claims Tribunal; and damages for a breach of promise of marriage under the 1834 Promises of Marriage Law.22 The arguments raised by local jurisprudence on the context of damages and tort law was that only material damages, damnum emergens, and loss of future earnings, lucrum cessans, could be claimed as provided under Article 1045 Chapter 16 of the Civil Code of the Laws of Malta.23 Today, the power of the Constitutional Court to ‘make such orders, issue such writs, and give such directions’ extends to the award of moral damages in compensation for injury suffered on grounds decided by the Court. The argument which convinced local jurisprudence was that restrictions for nonpecuniary damages under civil jurisdiction were not relevant under public law. This led the Court to acknowledge non-pecuniary damage for injury 21 Consumer Affairs Act, Chapter 378 of the Laws of Malta, Article 21(2).

22 Borg (n 13) 270.

23 ibid, 271.

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Constitutional and Administrative Procedure suffered in a human rights violation.24 In most cases, the Court, arbitrium boni viri, compensated the loss with a sum of money.25

2.8 Exhaustion of other remedies The Court in its Constitutional Jurisdiction has the right to decline a case, if it is satisfied that other adequate remedies of redress for the alleged violation are or were available under any other law.26 Hence, the claimant must satisfy the Court that the only complete and effective remedy to his case is the constitutional remedy.

However, Article 46(2) of the Constitution of Malta has often been abused by both the Attorney General as well as the Court through its absolute discretion when seeking to limit the number of constitutional cases. For example, the proviso that ‘the Court may if it considers it desirable so to do’ and ‘where it is satisfied that adequate means of redress […] are or have been available’ imply that the Constitutional Court, even ex officio, has the right to a ‘double discretion’ whether to exercise or decline its jurisdiction.27

3. Procedural obstacles under Article 469A of Chapter 12 of the Laws of Malta 3.1 Judicial review of administrative action Article 469A(1)(a) of the Code of Organisation and Civil Procedure under the Laws of Malta provides aggrieved individuals the right to institute actions against a public authority where an administrative act ‘[…] is in violation of the Constitution’. The Constitutional Court ruled that this provision does not apply to a human rights action under Articles 33 to 45 of the Constitution, but applies to infringements of the Constitution by administrative acts on 24 ibid.

25 ibid.

26 Constitution of Malta, Article 46(2).

27 Tonio Borg (n 13) 263.

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id-dritt grounds other than human rights. This interpretation by the Court creates an anomaly as most claims against the Constitution relate to a violation of human rights. The Christopher Hall vs Director Social Accommodation et 28 case involved three requisition orders, which were deemed abusive and in breach of human rights.29 However, the Court interpreted the words ‘contrary to the Constitution’ as meaning ‘contrary to any provision, other than Articles 33 to 45’.

The Public Service Commission (PSC) has often pleaded that its actions are beyond judicial review, citing Article 115 of the Constitution of Malta.

However, in Grixti Soler et vs Kummissjoni dwar is-Servizz Pubbliku30, the Court ruled that the PSC is not beyond allegations of a breach of rights, or when an application for judicial review of administrative action is made and the outcome was the annulment of the administrative act.

3.2 Exhaustion of other remedies ‘The plea of exhaustion of alternative remedies under article 469A applies only to actions brought under that article’.31 Both administrative and constitutional cases seek redress against the government. However, the Court under Civil Jurisdiction restricts itself to revoke the administrative act or uphold it. It will not substitute the decision-taking powers that belong to the government department in the matter. Hence, the remedy to the aggrieved applicant may be incomplete.

Another example is the case of Borda vs Ellul Micallef noe32 after the University of Malta turned down the plaintiff’s application for the post of lecturer on grounds of age. The plaintiff filed an administrative case, which 28 1/2003/1 Christopher Hall vs Director Social Accommodation et, Constitutional Court 18 September 2009.

29 Ivan Mifsud, Judicial Review of Administrative Action in Malta: An Examination of Article 469A COCP and of Judicial Review in General (BDL 2017) 55.

30 736/2014/1 Tabib Dottor Daniel Grixti Soler et vs Kummissjoni dwar is-Servizz Pubbliku et, Court of Appeal (Superior) 12 February 2016.

31 Tonio Borg, ‘Judicial Review of Administrative Action’ (Doctoral Thesis, University of Malta 2018).

32 1908/2001/1 Dr Emmanuel Borda vs Prof Roger Ellul Micallef noe, Court of Appeal (Superior) 29 May 2009.

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Constitutional and Administrative Procedure was won in the Civil Court, First Hall. However, the Court refrained from ordering the University to employ him. Hence, the applicant was not given an absolute remedy to the claim. While there is discretion on exhaustion of remedies in the Constitutional Court, there is no discretion in the Civil Court, First Hall under Article 469A.

3.3 Juridical interest Juridical interest is fundamental under Article 469A(4): The provisions of this article shall not apply, where the mode of contestation or of obtaining redress, with respect to any particular administrative act before a Court or tribunal is provided for in any other law.33 The doctrine is clearly explained by the Court in Emilio Persiano vs Commissioner of Police.34

3.4 Time limit Article 469A(3) provides that an action against an administrative act shall be filed within six months from the date a person becomes aware or could have become aware of such an administrative act, whichever is the earlier. However, under Article 469A(1), administrative acts in breach of the Constitution are not bound by the six-month period.

Article 469A(2) provides that apart from those cases where the law prescribes a time limit for a reply by the public authority, a no-reply within two months following a claimant’s written demand constitutes a refusal.

An administrative act does not include sentences of administrative tribunals and regulations issued by the government ultra vires. Moreover, 33 Code of Organisation and Civil Procedure (n 14) Article 469A(4).

34 1790/2000/1 Emilio Persiano vs Commissioner of Police noe, Civil Court (First Hall) 30 May 2002.

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id-dritt the case must be filed within six months, which is a decadence period and cannot be interrupted, unlike a prescription which can be interrupted by an official letter. The rules of Court also provide that if the plaintiff decides to file a case against the government, an official letter must be sent within ten days, failing which, the claim is considered null and rejected by the Court.

In July 2019, the Court ruled 35 that Article 460 and the ten-day pre-notice norm, which is required before instituting any action against Government, did not apply to Article 469A actions in judicial review cases. The ruling was appealed. In November 2019, in another more radical sentence, Mme Justice M. Hayman36 stated that the ten-day time limit, which obliges the applicant to file an official letter before making a case, under pain of nullity, was unconstitutional, as it created a procedural advantage in favour of Government, as defendant in the Case. This ruling was also appealed.

However, in July 2020, the First Hall of the Civil Court ruled that Article 460 gave an unfair advantage to Government instituting an action against the government was obliged to file a judicial letter or protest before instituting proceeding under pain of nullity. The Constitutional Court confirmed this judgement, ‘but only in so far as the disproportionate sanction of nullity was concerned, and not that the mere fact of requiring such judicial letter or protest was in itself a breach of the equality of arms principle.’37 When filing a Constitutional case or administrative case, the Attorney General must always be notified.

3.5 Good administrative behaviour The Courts in Malta are ambiguous on the interpretation of good administrative behaviour, and tend to rely on English Common law for the right to a fair hearing, for proceedings to be conducted in public and within a reasonable time, for the accessibility of documents relevant to the case, and 35 573 /2018 Paul Gauci in his own name and on behalf of the company E & G Properties Ltd vs Superintendent for Cultural Heritage on behalf of the Superintendent of Cultural Heritage, Civil Court (First Hall), 9 July 2019.

36 8/2019 Mark Formosa vs Permanent Secretary within Ministry for Gozo and the Public Service Commission, Civil Court (First Hall), 15 November 2019.

37 T. Borg, Leading Cases in Maltese Administrative Law (Kite Publishing, 2020).

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Constitutional and Administrative Procedure for the provision of a clear understanding of the reasons for the final ruling.

However, good administrative behaviour may not always hold ground in day-to-day practice. In a landmark judgement, Mary Grech vs Minister for Development of Infrastructure38, the Court pronounced a breach of the principle of natural justice when the authority withdrew a building permit without allowing the plaintiff the right to a fair hearing, and also gave no reasons for the revocation of the claim.

More recently is the case All for Property Ltd vs Director General Customs Department39 where plaintiff had been granted a permit by the health authorities to import an energy drink, which was later revoked following a complaint by a State agency in Malta. The litigation was only finalised by the Court of Appeal after it ruled that no provision in the Customs Ordinance prohibits the importation of the beverage in question.

4. Final Comment In Constitutional human rights cases it remains at the discretion of the Court whether to exercise its jurisdiction under Article 46(2) of the Constitution, even if other remedies were available. In Cachia vs Director General Health Department40 the Court refused to decline its jurisdiction regarding an allegation of a breach to the right to life, even though the Court implicitly admitted that the plaintiff could have initiated a judicial review action under Article 469A.41 Similarly, Article 469A also gives the Court the discretion to decline to exercise its powers and hear a case, where it is proven that the plaintiff has an adequate ordinary and effective remedy both in practice and in law.

38 Mary Grech vs Minister for Development of Infrastructure et, Court of Appeal (Civil, Superior) 29 January 1993.

39 741/2008/2 All for Property Ltd vs Il-Kontrollur tad-Dwana, Court of Appeal (Superior) 16 December 2019.

40 748/2000/1 Katerina Cachia vs Director General Health Department, Civil Court (First Hall) 11 August 2000.

41 Borg (n 30).

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Development and Planning Legislation

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Robert Musumeci, Rebekah Cilia Is planning permission required for expressing one’s feelings?

Dr Robert Musumeci has a warrant to practice as an advocate and a perit. He also read for a Doctorate of Philosophy of Law (Ph.D.) from the University of Malta. His Ph.D. thesis was entitled ‘Judicial Interpretation of Maltese Development Planning Law: Eliciting the added value’. He also holds a Master’s Degree in Conservation Technology in Masonry Buildings. He was selected by the Faculty of Laws (University of Malta) for the prize of Best Doctor of Laws Thesis Award 2016 for his thesis entitled ‘The Development Planning Act 2016 - A Critical Appraisal’. Dr Musumeci has published several academic articles related to the field of administrative law and planning legislation. Currently, Dr Musumeci lectures administrative law and development planning legislation at the University of Malta. He is the founding partner of the architectural firm RMPERITI and prior to being admitted to the Maltese Bar, he had practiced as a perit since 1998. He is a former chairperson of the Building Industry Consultative Council (BICC) and presently holds the post of a techno-legal advisor to the Government of Malta. Dr Musumeci was directly involved in the reforms which led to the Malta Environment and Planning Authority’s demerger and the establishment of the new Lands Authority in 2016. Presently he is involved in the setting up of the new Building and Construction Authority which should take over the roles of the Building Regulations Office, the Building Regulations Board, the Masons Board and the Building Industry Consultative Council.

Rebekah Cilia is an engineer and law student at the University of Malta.

She first graduated in 2008 from the University of Sheffield and also holds a Master’s Degree in engineering from the University of Oxford.

She was presented with the Medtronic Scholarship from the University of Oxford for showing exceptional talent in the field of biomedical engineering. Rebekah also holds a postgraduate diploma in building services engineering and a diploma in journalism. She has worked as an engineer for 11 years in the built environment sector.

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1. Introduction - What is ‘Development’?

A

ccording to Article 70(2) of the Maltese Development Planning Act (DPA), any new development, that is to say;

the carrying out of building, engineering, quarrying, mining or other operations for the construction, demolition or alterations in, on, over, or under any land or the sea, the placing of advertisements or the making of any material change in use of land or building and sea1 requires full development planning permission.2 A wide interpretation is commonly given to this definition of development. The same conclusion was drawn, for example, by the Planning Appeals Board in the case Raymond Vella vs L-Awtorità Ta’ L-Ippjanar3. In this case, the Planning Appeals Board held that ‘[...] t-tifsira tal-espressjoni “żvilupp” […] għandha tifsira wiesgħa ħafna.’

Odd as it may seem, full development permission may be also issued after development has already taken place.4 In other words, one can carry out development and seek permission later. The only difference, in such case, would be that the applicant would be subjected to a fine, the amount of which varies depending on the nature and scale of the sanctioned development.5 The same DPA, however, also specifies a number of instances where one is exempted from the need of obtaining planning permission, despite the works or use appearing to fall within the ambit of development. Such examples would include those ‘maintenance operations which do not materially affect the external appearance of the building’6 as well as the use of land for agriculture, animal husbandry and forestry, which also includes 1 Development Planning Act, Chapter 552 of the Laws of Malta, Article 70(2).

2 ibid.

3 160/97 KA. ECF 339/94 Raymond Vella vs L-Awtorità Ta’ L-Ippjanar, Planning Appeals Board 11 November 1994.

4 Development Planning Act (n 1) Article 70(1).

5 L.N. 277 of 2012, Schedule of Penalties Regulations (S.L. 552.25).

6 Development Planning Act (n 1) Article 70(2)(a).

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Development and Planning Legislation afforestation, except where such use entails the erection of buildings and, or, the reclamation of land by the deposit of material on such land.7 In other words, planning permission would still be required if one would want to build a room for storage or a greenhouse on agricultural land.

Since 2016, the list of exemptions has been widened to include emergency works carried out by government8, uses which subsisted continuously from a period when such use was not considered illegal and did not require a permit9, land reclamation carried out before 1994,10 as well as pre-1967 development.11 As will be discussed later, several exemptions also apply in the case of the placement of advertisements, as per Legal Notice 103 of 2018.

2. ‘Advertisements’ require Planning Permission As already noted, the definition of development contained in the DPA includes ‘the placing of advertisements’. This implies that full development permission is required to place an advertisement. The party concerned would thus need to first engage an architect to file a full development application with the Planning Authority, and then proceed with the works once permission is obtained and a commencement notice filed.12 To reinforce the idea that planning permission is needed regardless where an advertisement is placed, the Act felt the need to clarify that ‘the use for the display of advertisements on any external part of a building that is not normally used for that purpose, involves a material change in the use of that building or land.’13 In this way, the Act is emphasising that the placement of signs on the facades of buildings amounts to a change of use, which according to Article 70(2), requires planning permission.

7 ibid. Article 70(2)(b).

8 ibid. Article 70(2)(d).

9 ibid. Article 70(2)I. 10 ibid. Article 70(2)(b)(ii).

11 ibid. Article 97(1).

12 Development Planning Act (n 1) Article 70(2).

13 ibid. Article 70(3)(c).

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id-dritt Article 2 of the DPA then contains a comprehensive definition of ‘advertisement’, namely;any word, letter, model, sign, placard, board, notice, device or representation, whether illuminated or not, in the nature of and employed wholly or in part for the purposes of advertisement, announcement or direction, including any boarding or similar structure used or adapted for use for the display of advertisements.

What is interesting here, is that ‘advertisements’ are not taken to only include the promotion of a product or service, but also an ‘announcement’; hence, a public statement about a fact, occurrence, or intention.

The Billboards and Advertisements Regulations, found in Legal Notice 36 of 2018, lay down further guidelines which need to be complied with when billboards and advertisements are concerned. Regulation 3(1) of the said Legal Notice states that; […] no advertisement shall be displayed in any place which is visible from the road… without the permission of the Authority […] unless such an advertisement falls within the provisions of regulation 4.

Indeed, Regulation 4 lists several situations where the Planning Authority need not be informed about the placement of an advertisement. Such situations include the following: Unroofed areas within commuter terminals, as long as the advertisement is displayed on enclosed land and is not visible from any road; (i)

Advertisements which are displayed on, or in a vehicle, which is normally employed as a moving vehicle, is also exempt. This does not include an advertising vehicle, which would require a development permission;

(ii)

Political advertisements, that is to say any advertisement, including on billboards, which is used for the display of material which relates exclusively to a general election, to a referendum, a European Parliament election, or to an election for local councils, and which is displayed not earlier than three months before the date on which such election or referendum is to be held and not later than one week from the official 160

Development and Planning Legislation announcement of the result of such election or referendum; (iii)

An advertisement required by any law, or ordered by a competent court, as well as an advertisement for a town or village feast, which may include sponsored advertisements, as long as it is displayed not more than 30 days prior to the date of the feast; A traffic sign, a sign announcing the name of any city, town or village, displayed by a government or a local council;

(iv)

The national flag of any country, international organisation, or other locality flag, provided there is no advertising of any commercial activity related to it;

(v)

Any advertisement displayed inside a roofed building;

(vi)

An advertisement in the form of a flag displaying a company logo or name on the roof of any commercial building;

(vii)

An advertisement forming part of the Traffic Island Embellishment Scheme, provided it complies with the size limitations of the scheme of 1.2m by 30cm, and not more than two advertisements are displayed per traffic island;

(viii) An advertisement which forms an integral part of an aperture; (ix)

A billboard which has consent of the President of Malta and is used exclusively for activities and events of the office of the President, provided a set conditions are met; up to two billboards advertising public and/or EU funded projects, again with set conditions being met; and, up to 10 billboard advertising activities organised by NGO’s, which billboards are to be provided by Transport Malta and their used decided by a committee set up by the Minister.

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3. Does expressing one’s Feelings require Planning Permission?

The key aim of this academic contribution – something which we should perhaps have unveiled earlier – is to understand whether an exemption from the need to obtain permission to display a ‘word, letter, model, sign, placard, board, notice, device or representation’ manifesting one’s feelings subsists when freedom of expression is enshrined in Malta’s grundnorm, the Constitution, as well as the European Convention on Human Rights and the United Nations Declaration on Human Rights, of which Malta is a signatory.

At which point, the question to ask is whether ‘words, letters, models, signs, placards, boards, notices, devices or representations’ to announce a message should be subjected to the need of obtaining prior planning permission in the first place.

Prima facie, the intentions of the legislator seem to be very clear, in that the DPA requires that the placement of ‘words, letters, models, signs, placards, boards, notices, devices or representations’ not only apply for the promotion of a product or service, but also for an ‘announcement’, which would certainly include a public statement about a fact, occurrence, or intention, whether political or otherwise. In fact, when it comes to political advertisements, a specific exemption from the need to obtain permission only exists when the display is set up not earlier than three months before the date on which an election or referendum is to be held. The Nationalist Party, for example, had to submit a number of full development applications so as to be able to permanently erect a number of billboards all year long. Incidentally, these applications were refused permission by the Planning Authority and are currently awaiting a decision from the Environment and Planning Review Tribunal after appeals were lodged.14 Notwithstanding this, this article shall delve into three notable occasions, having all occurred in recent months, dealing with the idea of expressing one’s feelings and the requirement to obtain a planning permission. On these occasions, the requirement for permission for the placement of ‘words, letters, models, signs, placards, boards, notices, devices or representations […] for the purposes of announcements’ was completely overlooked or disregarded.

14 PA/10706/17; PA/10710/17; PA/10099/17; PA/10701/17; PA/10705/17; PA/10709/17; PA/10087/17; PA/10704/17; PA/10103/17; PA/10700/17 ; PA/10707/17.

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Development and Planning Legislation 3.1. The Emanuel Delia Case In the constitutional case Emanuel Delia vs L-Onorevoli Ministru talGustizzja, Kultura u Gvern Lokal Owen Bonnici u d-Direttur Generali tadDivizjoni tat-Tindif u l-Manutenzjoni Ramon Deguara,15 the plaintiff, along with a number of anti-government activists, placed a banner on the hoarding that was shielding the Great Siege monument in Republic Street Valletta.

The banner included the Maltese flag, along with the word ‘Ġustizzja’ and an image of the assassinated journalist Daphne Caruana Galizia. Flowers, candles, and other related objects were placed in front of the hoarding.

There should have been little doubt that the banner qualified under the definition of an advertisement since it consisted of a ‘word, letter, model, sign, placard, board, notice, device or representation’ used ‘for the purposes of announcements’.

The banner and objects were subsequently removed by government workers. The plaintiff asked the defendant, Ramon Deguara, to return the items following a report made at the Valletta Police Station. The items were indeed returned to the plaintiff, who then proceeded to place them again in front of the monument. Still, the placing and removal of the objects, however, are reported to have happened 17 times.

On his part, the plaintiff claimed a breach of his fundamental rights, specifically Article 10 of the European Convention on Human Rights (ECHR) and Article 41 of the Maltese Constitution, which both allow for the protection of freedom of expression. He claimed that his rights to freedom of expression were breached, as placing the banner and other objects was his way of expressing his right.

Article 10 of the ECHR, in actual fact, states that: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

15 93/2018 Emanuel Delia vs L-Onorevoli Ministru tal-Gustizzja, Kultura u Gvern Lokali Owen Bonnici u d-Direttur Generali tad-Divizjoni tat-Tindif u l-Manutenzjoni Ramon Deguara, Civil Court (First Hall) (Constitutional Jurisdiction) 30 January 2020.

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id-dritt 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In response, the Court noted that the defendant made reference to Chapter 445 of the Laws of Malta (the Cultural Heritage Act) as well as the Criminal Code16, but went on to observe that since the banner and other items were placed in front of the hoarding and not on the monument, this law could not be applied. Also, reference was also made by the plaintiff and the defendant to Subsidiary Legislation (S.L.) 549.40 which is entitled Abandonment, Dumping, Disposal of Waste in Streets and Public Places or Areas (Amendment) Regulations, 2018. Here, the Court found that the items could not be considered as ‘waste’, and therefore, this legislation did not apply.

In its conclusions, the Court also pointed out that plaintiff had a right to freedom of expression, so much so that protests carried out by the plaintiff were freely held. The Court further noted that the removal of the objects by the government entity did not have the aim of protecting the Monument but to disrupt the ongoing protests. Furthermore, the Court argued that although the European Court of Human Rights has stated several times that the national authorities do have discretion to establish what is necessary, and to do what is necessary to make sure this aim is reached, ‘finally it remains with the Court only the right and obligation to decide if there is proportionality between the aim and exercise of the right.’ According to the Court, there was no legitimate scope in terms of Article 10(2) of the ECHR. Against this backdrop, the Court found the defendants guilty of violating fundamental human rights in terms of Article 10 of the ECHR and Article 41 of the Maltese Constitution.

Nevertheless, what the Court has failed to comment about is whether the banner fell within the definition of ‘words, letters, models, signs, placards, 16 Chapter 9 of the Laws of Malta.

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Development and Planning Legislation boards, notices, devices or representations’ to make an announcement, and therefore, if it required planning permission.

3.2. The Caruana Galizia Case The constitutional case of Dr Peter Caruana Galizia, Matthew Caruana Galizia u Andrew Caruana Galizia vs L-Awtorita’ tal-Ippjanar17 preceded that of Emanuel Delia, but it notably carried similar traits. Here, the plaintiffs mounted a banner on private property in Valletta, with the questions; Why aren’t Keith Schembri and Konrad Mizzi in prison, Police Commissioner? Why isn’t your wife being investigated by the police, Joseph Muscat? Who paid for Daphne Caruana Galizia to be blown up after she asked these questions?

A few days following the placement of the banner, the Planning Authority issued an enforcement notice for the banner to be removed alleging a breach of Legal Notice 36 of 2018. The banner was subsequently removed and reported as stolen since the plaintiffs were not aware it had been removed by the authorities. Another banner was erected, with additional wording, and it was again removed by the Planning Authority.

The Courts did recognize the responsibility on the part of the Planning Authority to control the placing of advertisements since planning permission was required for such development. Nevertheless, the Court reasoned out that, in the instant case, the banner was not a billboard, nor an advertisement intended to sell a product, service or object. It thus found the defendants guilty of violating fundamental human rights, in terms of Article 10 of the ECHR and Article 41 of the Maltese Constitution, after holding to the principle that;freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. The Court also pointed out that messages that ‘offend, shock or disturb’ should be tolerated in a ‘democratic society’.

Impliedly, the Court concluded that there were no strong reasons for justifying the removal of the banners.

17 79/2018 L-Avukat Peter Caruana Galizia, Matthew Caruana Galizia, Andrew Caruana Galizia u Paul Caruana Galizia vs L-Awtorita` tal-lppjanar, Civil Court (First Hall) (Constitutional Jurisdiction) 16 July 2019.

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id-dritt What is interesting, this time round, is the restrictive interpretation of the term ‘advertisement’ given by the Court when it said that the Planning Authority was only entitled to ask for permission if the banner was intended to sell a product. The reality, however, is that the definition of ‘advertisement’ in Article 2 of the DPA covers not only business-related content but any announcement. This is all the more obvious since Regulation 4 of Legal Notice 36 of 2016 specifies the exact times when political advertisements are exempted from the need to obtain permission.

3.3 The Mellieħa Cross Case Another recent example, where the display of a ‘device’ and freedom of expression came to loggerheads, is the Mellieħa Cross case. The Mellieħa Fireworks Organisation Marija Bambina, each year places a cross during holy week on a Mellieħa hill. It should be obvious that the organizers were required to notify the Planning Authority (through a development notification order (DNO)) even if the cross was to be removed before 30 days. This is because Legal Notice 211 of 201618 requires a DNO to be submitted when a non-permanent structure or use lasts ‘for a limited time not exceeding thirty days […] and does not involve any non-reversible intervention.’ 19 To complicate matters, this time around (in 2020), the cross was left idle on the hill because of the COVID-19 pandemic. Eventually, a report was filed to the Planning Authority alleging that the structure was not covered by neither a DNO, nor a planning permit. In response, the Planning Authority issued an enforcement notice for the cross to be taken down. Public outcry immediately ensued, bringing forth, once again, the discussion on planning rules versus the principle of freedom of expression, only for the cross to be reinstated following public statements made by government, not least the Prime Minister, as well as opposition members of Parliament.20 Albeit, in the instant case, there was no need to take the matter to court 18 L.N. 211/2016, Development Notification Order (S.L. 552.08).

19 Class 10 of LN 211 of 2016.

20 ‘Updated: Mellieħa’s symbolic cross to stay after Prime Minister’s intervention’ (The Malta Independent, 19 August 2020) <https://www.independent.com.mt/articles/2020-08-19/local-news/Mellieha-s-symbolic-cross-removed-following-complaint-6736226238>.

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Development and Planning Legislation for it to declare that the Planning Authority’s issuing of the enforcement notice was in violation of Article 10 of the ECHR and Article 41 of the Maltese Constitution, there is no doubt that Article 70(2) of the DPA was, once again, relegated to a dead letter.

4. Conclusion It would seem that subjecting the display of ‘words, letters, models, signs, placards, boards, notices, devices or representations’ to obtaining prior approval from the Planning Authority is finding opposition from both the courts and sitting politicians, at least when political or religious messages are concerned. This notwithstanding the fact that, unlike the impression given by the Court in the Caruana Galizia case, the current DPA makes no distinction between displays intended to sell a product or service, and those for the purposes of announcements. From a reading of the DPA, it follows that both types of ‘advertisements’ qualify as ‘development’, and are not exempted from the need to obtain planning permission. So much so that, as highlighted earlier, Regulation 4 of Legal Notice 36 of 2016 specifies the exact three-month period during which political advertisements can be set up without the need to obtain permission.

What needs to be clarified, at this juncture, is whether expressing oneself through ‘words, letters, models, signs, placards, boards, notices, devices or representations’ to get a message through, so long as such message is not intended to sell a product, should, from now on, be exempted from obtaining planning permission. This, of course, in the name of freedom of expression.

The problem with this raison d’être, however, could be that expressions of beauty or taste should equally go unchecked, rendering current building design rules and guidelines a dead letter.

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Julienne Bencini Expect the unexpected: understanding health and safety risks post the Covid pandemic.

Dr Julienne Bencini (LL.M. (Edinburgh), LL.D.) is currently a senior associate at GANADO Advocates and previously formed part of the litigation team for a number of years. She has a wealth of specialist knowledge in the field of occupational health and safety having assisted clients in criminal and civil proceedings and safety matters throughout her career, including those arising from multiple injuries at work.

She has a keen interest in health and safety regulation and continues to research the subject by critically analysing both local and foreign judgments which research project commenced whilst drafting her LL.D. thesis (2008) entitled: Employer’s Liability in Health and Safety Matters.

Her case load included personal injury claims, industrial H&S Management inquiries as well as health and safety dispute mediation initiatives.

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he ILO Centenary Declaration,1 adopted in June 2019, resolved that ‘safe and healthy working conditions are fundamental to decent work’. This declaration merits an update as, today, more than ever, ‘it is very clear that protecting and promoting occupational safety and health is of the utmost importance for workers, companies, social protection systems, and the whole society.’2 It is now a clear fact that a comprehensive risk assessment is an impact-proven measure which can save lives or prevent recurrences as it allows workplaces to develop a quick, coordinated, and effective response during a health crisis.

Businesses and companies are expected3 to offer prevention and protection measures, including the assurance that workplaces, machinery, equipment, and processes are safe, and without risk to one’s health,4 as well as provide plans for emergency preparedness.5 The continuous monitoring of hazards and appropriate assessment of risk is the starting point for managing occupational health and safety (OHS). When re-assessing or conducting a risk assessment, employers are to categorize COVID-19’s exposure risk level at each worksite and take appropriate steps to protect employees based on their exposure to that risk level. It is therefore crucial for businesses to now carry out a thorough review of their workplace, from start to finish, identifying risk of transmission or infection, and implementing appropriate controls to eliminate that risk or, if this is not possible, to at least bring it to an ‘acceptable’ level.

1 International Labour Organization, ‘ILO Centenary Declaration for the Future of Work, 2019’ <https://www.ilo.org/global/about-the-ilo/mission-and-objectives/centenary-declaration/ lang--en/index.htm>.

2 ‘Coronavirus: EU Guidance for a safe return to the workplace’ (European Commission, 24 April 2020) <https://ec.europa.eu/commission/presscorner/detail/en/ip_20_729> .

3 Occupational Safety and Health Recommendation, 1981 (No. 164); The Work Place (Minimum Health and Safety Requirements) Regulations – Subsidiary Legislation 424.15 (Article 5 – General Duties)- the Workplace Minimum Health and Safety Regulations.

According to the laws of Malta, these regulations are to be considered as the minimum occupational health and safety requirements applicable mutatis mutandis to every workplace and to every work activity, and shall apply whenever required by the features of the workplace, the work activity being carried out, the circumstances prevailing, and the degree or nature of the hazard - (Article 2(1) – Application of the Workplace Minimum Health and Safety Regulations.

4 ILO Convention 155 Occupational Safety and Health Convention, 1981 (No. 155) [Article 16].

5 ibid. 5; Workplace Minimum Health and Safety Regulations [Article 5]; Work Place (First Aid) Regulations – Subsidiary Legislation 424.13.

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Employment Law Which are the ‘appropriate’ steps which should be taken? Unfortunately, the various guidance notes published by governmental authorities are not a fail-safe blueprint to satisfy all OHS obligations. Generally, the identification of risks should include the following key elements: policy organization, planning and implementation, evaluation and action for improvement.6 In simpler words, when it comes to OHS, the following mantra should be chanted; risk assess, document, communicate, and train adequately.

Effective communication gives workers a sense of control7 as it identifies concerns and promotes a ‘safe working environment’.

Entities, no matter how big or small, must bear in mind that according to Maltese law, when determining liability for failure to provide a safe working environment, courts will not only look at the company director or person holding a managerial role, but will also question the actions of any other person who purports to act in any such capacity. It is then up to such persons to adequately and sufficiently prove that all reasonably practicable measures, a term often used in matters of OHS, had been taken to host a safe working environment for its workers.8 This interpretation also means that employers shall not be exempt from liability should they opt to engage a professional OHS practitioner to draw up an effective risk assessment. Clearly, persons in 6 International Labour Office: Geneva, Guidelines on Occupational Safety and Health Management Systems ILO-OSH 2001, (2nd edn International Labour Organization 2001).European Commission Directorate-General V Employment, Industrial Relations and Social Affairs, Guidance on risk assessment at work, (ECSC-EC-EAEC, Brussels, Luxembourg, 1996).

Risk Assessment Tool available on the Malta Employers Association and available for download on the following site maltaemployers.com/en/ohs-regulations; European Agency for Safety and Health at Work, EU Guidance ‘COVID-19: back to the workplace: adapting workplaces and protecting workers’ (27 July 2020), <https://osha.europa.eu/ en/publications/covid-19-back-workplace-adapting-workplaces-and-protecting-workers/ view>.

7 International Labour Organization, ‘In the face of a pandemic: Ensuring Safety and Health at Work, (2020), <https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/--safework/documents/publication/wcms_742463.pdf>.

8 699/06, Simon Despott vs Corinthia Palace Hotel Company Limited (C-257) u kif ukoll Patrick Busuttil f’isem u fl-interess ta’ Flight Cathering Company Limited (C24720) u Corinthia Group of Companies għal kull interess li jista jkollhom, Court of Appeal (Superior), 20 July 2020. [11]- ‘Illi hija regola ewlenija f’dan il-qasam, li l-imgħallem irid jiżgura li jipprovdi lill-ħaddiema tiegħu b’ambjent li jżomm ’il bogħod kull periklu u dan billi jiżgura li jitħaddem sistema xieraq ta’ ħarsien minn kull periklu fejn ikun sejjer isir ix-xogħol minnu mitlub. Fid-dritt, dan id-dmir iġorr miegħu grad għoli ta’ responsabbilita` fuq l-imgħallem, u jaqa’ fuqu l-piż li jipprova li n-nuqqas li l-impjegat jilmenta minnu ikun seħħ minkejja li jkun ħares dak kollu li l-liġi tistenna minnu f’dan ir-rigward. Huwa wkoll dmir li jitfa’ fuq min iħaddem il-piż li jieħu miżuri preskritti xierqa u jġib miegħu wkoll id-dmir talgħoti ta’ tagħrif meħtieġ, l-għoti ta’ tagħlim u taħriġ u kif ukoll superviżjoni biex titħares is-saħħa u s-sigurta` tal-ħaddiem.’

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id-dritt control are to be actively involved in the report having a full understanding of the content therein, regardless if the assessment is loaded with technical information or complexities. The legislator and the courts want to convey a message; persons within an organisation must be held accountable for negligent decisions which affect the safety of employees, and therefore safety cannot be an afterthought. The tone from the top should be ‘prepare and prevent’, not ‘repair and repent’, as it is normally the case that a serious OHS breach at any workplace is just the tip of the iceberg and a sign of a much larger problem below the surface.

To add to the above, Maltese law defines a worker as a ‘person employed by an employer to perform work, or who provides a service to another person under a contract of service or for service, and includes a trainee, an apprentice, and a self-employed persons’ and a workplace is defined as ‘any premises, thing or location, whether public or private, where work is carried out or to which the worker has access to in the course of his employment.9’ When considering this infectious disease and identifying the hazards faced in a workplace, including air conditioning systems, lifts, etc., and not just work stations, and on deciding who might be at risk of contagion; employers must take into consideration the persons, including third parties, accessing the premises and decide on innovative precautions to limit those risks. For example, in light of COVID-19, employers may wish to provide temporary face masks to clients attending a meeting or facilitating sanitization of frequented common areas. They may also warn employees of additional measures which ought to be taken if they are commuting to the workplace using public transport.

A risk assessment is the first document which a court will review when considering mitigating liability, hence, it is high time that each company’s risk assessment is updated to reflect changes in their OHS policy in view of COVID-19. A risk assessment should also consider foreseeable incidents caused by employees as they do tend to get careless about risks, especially with COVID-19 being a ‘new’ risk. It should include the prevention of such risks by including measures such as staggering break times, for employees to remain socially distanced, and changing desk space configuration so that employees work back-to-back.

9 Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta [Article 2 – Interpretation].

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Employment Law The Maltese, as well as foreign courts convey the message that employers are to provide a high standard of care towards their employees, which, understandably, is not an easy task. It would be made simpler if the corporate culture includes two simple goals; safety and security. This should aid employers to use their minds and implement reasonable decisions whilst retaining flexibility in adjusting to this ‘new hidden risk’. It is very likely that employees who refuse to attend work or take appropriate steps to protect themselves or other persons in circumstances of contagion which they reasonably believe to be serious and imminent, are protected from dismissal for taking this action by being faced with this scenario. In such cases, the Industrial Tribunal in Malta will, in all probability, assess and conclude that the action taken by the employee is reasonable.

Many have questioned the pragmatic meaning of the term ‘practical reasonableness’, a term which is often cited in court judgments,10 and one wonders how this term would be applied in the context of COVID-19. If one had to take into consideration the elements often cited in various Maltese judgments and adapted these to the transmission of COVID-19, this would mean that employers are to consider; (a) the more likely or probable the risk of transmission is, the greater the duty by the employer to guard against such transmission; (b) the possibility of transmission and the measures taken to prevent such transmission; and (c) different kinds of work involve different risks of transmission, for example, delivery personnel are at higher risk of contagion than a person stationed in an office space. Lord Justice Asquith,11 when asked to explain the term ‘reasonably practicable’, described a scale weighing a risk against the steps in terms of money, time, or trouble needed to counter it which factors must far outweigh and not balance the risk. This balancing act requires lots of experience and knowledge and professional advice ought to be sought.

10 (n7).

11 Edwards vs National Coal Board [1949] 1 All ER 743 CA – ‘Reasonably practicable, as traditionally interpreted, is a narrower term than “physically impossible” and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble involved in the measures necessary to avert the risk is placed in the other; and that, if it be shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon whom the duty is laid discharges the burden of proving that compliance was not reasonably practicable. This computation ails to be made a point of time anterior to the happening of the incident complained of.’ This statement has been approved in several other cases including Marchall v Gotham Co. Ltd [1954] 1 All ER 937 (House of Lords).

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id-dritt The International Organisation of Employers and International Trade Union Confederation have issued a joint statement12 expressing their commitment to support policy makers in their efforts to ensure business continuity and to alleviate financial devastation. This alone is not enough. On a day-today basis, no matter the industry, it is now crucial if not fundamental for organizations to join forces to combat the impact of the COVID-19 health crisis by eliminating paper-promises and actively ensuring that OHS is a key investment to protect worker’s health and safety.

12 IOE, ‘Joint Statement on COVID-19 by International Organisation of Employers and International Trade Union Confederation, <https://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---actrav/documents/genericdocument/wcms_739522.pdf>.

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Natalino Caruana De Brincat Employment Law - The (in)Definite Dilemma.

Dr Natalino Caruana de Brincat has successfully completed the Doctor of Laws (LL.D.) degree at the University of Malta. He also holds a Bachelor of Laws (LL.B.) degree together with a Diploma Notary Public awarded by the same University of Malta, whilst is in possession of Master’s degree in Business Administration (MBA) from the University of Leicester. He is a founding member of the Junior Chamber of Advocates.

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1. Introduction

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his article will shed light on the difference between a definite and indefinite contract in terms of Maltese Employment Law.1 The author shall be delving into the salient principles of the law, along with an understanding of its interpretation by the courts.

Although the law does not oblige the employer and the employee to enter into a formal contract of employment, the Employment and Industrial Relations Act (EIRA) Chapter 452 of the Laws of Malta gives the discretion to the Minister2 in providing a set of ‘regulations prescribing the minimum information which every employer shall be bound to provide to every employee and the manner in which such information is to be given to the employee’.3 To this effect, Legal Notice 431 of 20024 explains that where such contract of employment was not signed by the parties (the employer and the employee), or in cases where there is a written contract which however does not cover all or some of the information specified and which is to be notified to the employee in accordance with the Information to Employees Regulations, the employer is bound and shall provide such information within an engagement letter or a mere statement within eight working days from the commencement of employment. Therefore, in cases where there is some form of written employment contract, the employer is duly bound to provide the employee with a signed copy of the said covenant.

1 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 33: ‘A person may bind himself to give his services for a fixed term or for an indefinite term, or in respect of a specified task, undertaking, work or service [omissis]’.

2 “Minister” means the Minister from time to time responsible for Employment and Industrial Relations.

3 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 35: ‘The Minister may, after consultation with the Board, make regulations prescribing the minimum information which every employer shall be bound to provide to every employee and the manner in which such information is to be given to the employee and to regulate any other matter relating to the employer’s obligation to inform or consult the employee or the employees’ representatives on employment conditions, and, in such regulations the Minister may grant exemption from the obligation imposed by this article or establish different rules for different classes or types of employment’.

4 Information to Employees Regulations, S.L. 452.83, Article 4: ‘In those cases where no written contract of employment has been signed between the employer and the employee, and, or in those cases where the written contract does not cover all or some of the information required to be notified to the employee by these regulations, the employer shall be bound to give or send to the employee a letter of engagement or a signed statement, by not later than eight working days from the commencement of employment [omissis]’.

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Employment Law The aforementioned engagement letter or statement shall include all the basic conditions of employment as provided in terms of the Information to Employees Regulations.

Article 45 of Subsidiary Legislation 452.83 highlights the minimum obligatory information to be provided when one is drafting a contract of employment. In situations where such contract does not exist, this minimum information is to be included in the engagement letter or statement abovementioned. These include amongst others basic personal details of the employer, the period of probation applicable,6 date of commencement of employment, any collective agreements in place vis-à-vis the employment, and the normal hours of work. The raison d’être behind such legislation is to protect the employee by providing him with basic information related to his employment.

5 Information to Employees Regulations, S.L. 452.83, Article 4: ‘[omissis] and which shall include the following information: (a) the name, registration number and registered place of business of the employer and a legally valid identification document number, sex and address of the employee and the place of work: Provided that in the absence of a fixed place of work it should be stated that the employee will be employed at various places together with the registered place of business: Provided further that if there is no registered place of business, the domicile of the employer is to be stated; (b) the date of commencement of employment; (c) the period of probation; (d) normal rates of wages payable; (e) the overtime rates of wages payable; (f) the normal hours of work; (g) the periodicity of wage payments; (h) in the case of a fixed term contract of employment, the expected or agreed duration of the contract period; (i) the paid holidays, and the vacation, sick and other leave to which the employee is entitled; (j) the conditions under which fines may be imposed by the employer; (k) the title, grade, nature or category of the work for which the employee is employed; (l) the notice periods to be observed by the employer and the employee should it be the case; (m) the collective agreement, if any, governing the employee’s conditions of work; and (n) any other relevant or applicable condition of employment: Provided that if any of the above information is regulated by any law, regulation, national standard order, sectoral regulation order or collective agreement, the information may, where appropriate, be given in the form of a reference to the laws, regulations, orders or collective agreements governing that same information: Provided further that where an employer engages a person under a contract for service as an outworker for an undertaking, he shall provide the employee with a signed statement showing - (a) the name, registration number and registered place of business of the employer and a legally valid identification document number and address of the employee; and (b) the rate to be paid for the work; and (c) any special conditions regulating the contract’.

6 The probationary period is set to be six months; however, in the case of a contract of service in respect of employees holding technical, executive, administrative or managerial posts and whose wages are at least double the minimum wage established in that year, such probation period shall be of one year unless otherwise specified in the contract of service.

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2. The Definite Contract?

The definite contract, or as also referred to, the fixed-term contract,7 is an employment agreement with an identified commencement and a specified termination date. Usually, such contracts are used for particular tasks, including project-based employment having a sunset clause coinciding with the final date of the project.

Customarily, in a fixed-term contract enhanced remuneration is generally negotiated, considering the short and brief nature of the employment agreement. The legislator felt the need to protect the employee entering into such definite contract. Indeed, the Employment and Industrial Relations Act8 provides that the ‘conditions of employment in a fixed-term contract shall not be less favourable than those which would have been applicable had the same contract of employment at the same place of work been for an indefinite time [omissis]’.9 Furthermore, there is a clear distinction as regards to the repercussions to any possible abrupt termination by whosoever is at fault.

Therefore, in a fixed-term contract of employment, one has to distinguish between termination before and after the period of probation or termination for a good and sufficient cause.10 If the employment is terminated during the period specified as being probationary, the employer does not suffer any liability whatsoever. The same applies in cases where the employee himself opts to terminate the contractual relationship during such period.11 The probationary period can be 7 Contracts of Service for a Fixed Term Regulations, S.L. 452.81, Article 2(1): ‘”contract of service for a fixed term” means a contract of service entered into between an employer and an employee where the end of the contract is determined by reaching a specific date, or by completing a specific task, or through the occurrence of a specific event.’

8 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta (n2).

9 ibid. Article 34(1).

10 Notwithstanding such terminology repeatedly mentioned within Chapter 452, the legislator failed to provide a clear definition of what such good and sufficient cause constitutes, and both employers and legal advisors relay on the interpretational given by the Courts and/or the Industrial Tribunal. However, the legislator did provide what will not amount to good and sufficient cause if applied by the employer. Such exhaustive list can be found within the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, proviso to Article 36(14).

11 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(2): ‘During the probationary period the employment may be terminated at will by either party without assigning any reason [omissis]’.

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Employment Law considered as a cooling-off period where the employee and the employer can test if the employment relationship is expected to be successful or otherwise. However, in such a scenario there is an obligation to provide a week’s notice if the employment relationship would have exceeded beyond one month.12 The law13 provides that a probationary period applies ipso jure, irrespective of whether the contract is on fixed-term or otherwise, as confirmed in the case of Borg Roderick vs Hospitality Services Ltd.14 Nevertheless, in the latter case, the Court of Appeal held that when considering the short nature of the contract (five months) and the fact that the probationary period was not specifically mentioned in the contract, this automatically implied that the employment agreement was not subject to probationary periods. The latter decision can be said to be somehow ironic and in direct conflict with provisions of the law15 considering that the Employment and Industrial Relations Act provides no distinction between fixed-term and definite contracts as regards probation periods. To add insult to injury, the fixed-term contract in question had an umbrella clause saying, ‘All the above and any other conditions not mentioned above are regulated by the Laws of Malta’,16 which in this case implies that if the probation period was not mentioned, the provisions of the law automatically kick in. Nonetheless, in view of the aforementioned case, it would be wise for one to specify the probationary period within the contract.

Upon the lapse of the probationary period, but before the lapse of the definite time stipulated by the contract of service, neither the employer nor the employee are bound to give notice for a specified period of time when opting to terminate the contractual relationship. Nonetheless, it would be professional to require that some form of notice be provided.

12 ibid.: ‘[omissis] Provided that a week’s notice of the termination of employment shall be given to the other party in the case of an employee who has been in the employment of the same employer continuously for more than one month’.

13 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta (n 2).

14 6/2012, Court of Appeal (Inferior) 29 November 2012 (as per Justice Raymond Pace).

15 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(1): ‘Saving the provisions of subarticle (16), the first six months of any employment under a contract of service shall be probationary employment unless otherwise agreed by both parties for a shorter probation period’ (emphasis by author).

16 ibid. page 2 of 11.

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id-dritt Once the probation period elapses, the law requires that half the salary of the remaining working days is to be paid by the party terminating the employment contract. The salary in such cases is determined on the basis of the basic remuneration and does not include bonuses, commissions, allowances or any other perks.17 Therefore, if the employee terminates the contract before it reaches its preordained termination, the latter would have to pay half of the remuneration the employee would have been paid had he fulfilled his contractual obligations.18 Conversely, the situation would be the same should the employer terminate the employment contract before its natural termination.19 The above was the basis of the case in the names of Falcon Tours Limited (C4425) vs Schembri Alison.20 Plaintiff filed an action against its former employee, to recover half of the basic remuneration on the basis of Article 36(12) of Chapter 452 of the Laws of Malta. The plaintiff pleas were entertained by the Court and it concluded that there was an abrupt termination of the fixed-term contract, and thus ordered the former employee to pay in liabilities the amount of €3,494.06.

The legislator left a window ajar to be used both in favour of the employer and employee; that is, the dismissal or abandonment on the basis of good and sufficient cause.21 In such situations neither the employer nor the 17 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(12): ‘[omissis] reference to “full wages” or “wages” is to mean the wage payable to an employed person by or on behalf of his employer, excluding any remuneration for overtime, any forms of bonus, any allowances, and remuneration in kind and commissions’.

18 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(11): ‘An employer who dismisses an employee before the expiration of the time definitely specified by a contract of service, shall pay to the employee one-half of the full wages that would have accrued to the employee in respect of the remainder of the time specifically agreed upon’.

19 ibid. Article 36(12): ‘An employee who abandons the service of his employer before the time definitely specified by the contract of service shall pay to his employer a sum equal to one-half of the full wages to which he would have become entitled if he had continued in the service for the remainder of the time so specifically agreed upon’.

20 535/2008, Small Claims Tribunal 14 April 2011 (as per Adjudicator Dr Veronica Galea Debono).

21 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(14): ‘Notwithstanding the foregoing provisions of this article, an employer may dismiss the employee and the employee may abandon the service of the employer, without giving notice and without any liability to make payment [omissis] if there is good and sufficient cause for such dismissal or abandonment of service’.

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Employment Law employee will be compensated for the early termination of the contract as aforementioned.

Therefore, if the contract of employment is terminated or abandoned for good and sufficient cause, no liability will be incurred by the employer or the employee, depending on whom of the two parties will invoke such ground to justify the termination or abandonment.

Another distinct characteristic of a fixed-term contract is the mutation into an indefinite contract. The latter transformation will occur if the employee has been continuously employed under such contract of service for a fixedterm in excess of a period of four years.22 Importantly, the meaning given by the legislator to the words ‘continuously employed’, which shall include definite term contracts renewed or extended within the first six months from the end of the previous fixed-term contract.23 Thus, the legislator gave this extended meaning to try to curb possible abuse by the employer to avoid indefinite contracts.

Finally, and of utmost importance, fixed-term contracts cannot be unilaterally changed, therefore both employee and the employer are to agree on the changes being proposed. Frequently, it is the employer who has the impetus to propose changes to the terms and conditions, thus the latter must inform the employee in writing with any proposed changes related to the employment contract post the engagement date. When the changes are ipso jure the employer is not bound to notify the employee of such 22 Contracts of Service for a Fixed Term Regulations, S.L. 452.81, Article 7(1)(a): ‘the employee has been continuously employed under such a contract for a fixed term, or under that contract taken in conjunction with a previous contract or contracts of service for a fixed term in excess of a period of continuous employment of four years [omissis]’.

23 Contracts of Service for a Fixed Term Regulations, S.L. 452.81, Article 7(5): ‘For the purposes of this regulation, the term “continuously employed” shall include those contracts of a fixed-term which are renewed within six months from their termination and this period between the contracts shall be included in the calculation of the four year qualifying period referred to in sub-regulation (1)(a). Provided that another contract of service for a fixed-term entered into after the lapse of the six month period shall not be considered as continuous employment: Provided further that another contract of service for a fixed term entered into within the six month period after the termination of a previous contract shall be considered as continuous employment if the tasks under the subsequent contract are substantially the same as the tasks under the previous contract of employment: Provided also that the tasks shall still be considered to be substantially the same, even though they encompass changes related to technical progress or changes in work practices or in the way the tasks are carried out or the contract includes a promotion related to work assigned in any previous contract’.

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id-dritt legislative changes which might affect directly or indirectly the employment relationship.

3. The Indefinite Contract?

The indefinite contract is an employment agreement which terminates upon retirement, death, voluntary resignation, redundancy or dismissal for good and sufficient cause. Usually, such contracts are used when the duration of the contract cannot be defined, thus not readily estimated. In such cases where an indefinite contract is proposed, the parties to the contract of employment would be in agreement to commit to the terms and conditions therein for an indefinite period of time.

Typically, such indefinite contracts are offered to employees not holding technical, executive, administrative or managerial posts. Therefore, one would be looking at middle management and lower levels of operational or administrative work.

The probationary period in an indefinite contract starts from the day of engagement; hence, like in fixed-term contracts both the employee and the employer have six months to assess the development of their work relationship.24 During the first month, both parties can terminate their contractual relationship without providing any notice whatsoever, nevertheless upon the lapse of the first month till the end of the probationary period a week’s notice is mandatory.25 Therefore, in this regard, the Employment and Industrial Relations Act does not place any distinction whatsoever between fixed-term and indefinite contracts. As in the case of fixed-term contract, the probationary period can be extended to one year in situations where the employment is of a technical, executive, administrative 24 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(1): ‘Saving the provisions of subarticle (16), the first six months of any employment under a contract of service shall be probationary employment, unless otherwise agreed by both parties for a shorter probation period [omissis]’.

25 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(2): ‘Provided that a week’s notice of the termination of employment shall be given to the other party in the case of an employee who has been in the employment of the same employer continuously for more than one month’.

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Employment Law or managerial posts, which remuneration thereof would be at least double the minimum wage.26 This is not compulsory and therefore, can be derogated therefrom.

It can be said that if the employee does not fall within the subjective categories abovementioned, the mandatory applicable probationary period shall be that of six months, unless otherwise agreed by both parties for a shorter probation period.27 During the probationary period, the employment relationship may be terminated or abandoned by either party without providing any reason for such termination or abandonment.28 This was the basis of the decision of the Court of Appeal in the case of Vella Charlene vs Banif Bank (Malta) Plc.29 Plaintiff filed an action before the Industrial Tribunal30 alleging that her contract was terminated post probation. During the hearing before the Tribunal it was held that the dismissal was during the probationary period and was directly related to lack of performance. Notwithstanding the undisputable clarity of the law, the Tribunal granted right to plaintiff to rebut and defend such accusations. Upon appeal, the Court held that: La darba nstab li t-terminazzjoni ta’ impjieg kienet fi żmien ta’ prova u hekk iddeċieda t-Tribunal ma jistax jingħad u wisq inqas jiġi eżaminat jekk it-terminazzjoni kinitx għar-raġuni ġusti jew le għaliex dan imur kontra l-Liġi stess.31 26 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(1): ‘[omissis] Provided that in the case of a contract of service, or collective agreement, in respect of employees holding technical, executive, administrative or managerial posts and whose wages are at least double the minimum wage established in that year, such probation period shall be of one year unless otherwise specified in the contract of service or in the collective agreement’.

27 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta (n25).

28 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(2): ‘During the probationary period the employment may be terminated at will by either party without assigning any reason’.

29 21/2011, Court of Appeal (Inferior) 26 July 2012 (as per Justice Raymond Pace).

30 The Industrial Tribunal is set out and regulated by the Employment and Industrial Relations Act. The decisions of the Industrial Tribunal are not subject to appeal, except on points of law.

In addition, its awards are binding and cannot be revised prior to the elapsing of at least one year after the issue of any such award. For further information about the Industrial Tribunal vide <http://socialdialogue.gov.mt/en/Pages/Entities/Industrial-Tribunal.aspx>.

31 Court of Appeal (Inferior) (n 30) page 8 of 10: (Translation) ‘Once it was found that the termination of employment was during the probationary period, the Tribunal cannot delve or determine

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id-dritt Therefore, the Court of Appeal reconfirmed that during the probationary period none of the parties is obliged to provide any justification or reason for the termination or abandonment of the employment contract.

Unlike the fixed-term contract scenario, an indefinite contract employment is subject to a notice period.32 The legislator, this time round, provided a transition period which is beneficial for both parties. During the notice of termination of employment, depending the nature of such termination, the employee would usually start the hand-over process and the employer would focus on the induction of the replacement, if any.

The law provides specific notice of termination of employment periods depending on the duration of the employment relationship. The duration of notice periods are as follows: (a) for more than one month, but not more than six months - one week notice; (b) for more than six months, but not more than two years - two weeks’ notice; (c) for more than two years, but not more than four years - four weeks’ notice; (d) for more than four years, but not more than seven years - eight weeks’ notice; (e) for more than seven years, an additional one week for every subsequent year of service up to a maximum of twelve weeks’ notice.33 The notice period is considered to be operative as from the next working day on which such notice would have been given.34

whether the termination was not for just cause or not, because doing so would be going diametrically opposite to the Law itself’.

32 Notice Period is to be given either by the employee, or by the employer in cases of redundancy.

33 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(5): ‘Notwithstanding any agreement to the contrary, and without prejudice to what is stated in paragraph (f), notice of the termination of employment proposed either by the employer or by the employee under a contract of service for an indefinite time, shall be of the following respective duration, if the employee has been in the employment of the same employer continuously - (a) for more than one month, but not more than six months - one week; (b) for more than six months but not more than two years - two weeks; (c) for more than two years, but not more than four years - four weeks; (d) for more than four years, but not more than seven years - eight weeks; (e) for more than seven years, an additional 1 week for every subsequent year of service up to a maximum of twelve weeks; (f) or such longer periods as may be agreed by the employer and employee in the case of technical, administrative, executive or managerial posts: Provided that notice of termination of employment may not be given during maternity leave or during the period of incapacity for work to which subarticle (17) refers or during such other period as the Minister may prescribe’.

34 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(7): ‘The period of notice shall begin to run from the working day next following the day on which notice is given’.

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Employment Law The law also explains that longer notice of termination of employment periods may be agreed by the employer and employee in the case of technical, administrative, executive or managerial posts.35 Therefore, longer notice of termination of employment periods only apply in the case of such specific nature and if there is mutual agreement between the parties to the contract.

There can be situations where the employee might want not to work the notice period, or on the other hand the employer might want the employee not to remain within the premises, for several reasons.

The Employment and Industrial Relations Act provides for these situations and explains that if the employer gives notice of termination, the employee shall have the right to contemplate whether or not to work the abovementioned notice period or not. In cases where the employee opts to work his notice period, he will be entitled to the full remuneration as per contract. Conversely, if the employee opts not to work the notice period, then he would be entitled merely to half the remuneration for the notice period applicable.36 The law also provides for instances where the employer fails to give notice to the employee. In this situation, the employer is liable to pay the employee full remuneration for the notice period.37 In the scenarios where the employee gives notice of termination to the employer, the latter shall have the right to opt whether to allow the employee to work the notice period or not.38 In this circumstance, the situation would be slightly different than the scenario contemplated above. If the employer allows the employee to work the notice period, the former is to remunerate 35 ibid.

36 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(8): ‘On receiving notice from the employer as aforesaid the employee under a contract of service for an indefinite time shall have the option either of continuing to perform work until the period of notice expires or, at any time during the currency of the period of notice, of requiring the employer to pay him a sum equal to half the wages that would be payable in respect of the unexpired period of notice’.

37 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(10): ‘[omissis] If the employer fails to give the said notice, he shall be liable to pay to such employee a sum equal to the wages that would be payable in respect of the period of notice’.

38 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(9): ‘On receiving notice from the employee as aforesaid, the employer shall have the option either to allow the employee to continue to perform work until the period of notice expires or, at any time during the currency of the period of notice, to pay the employee a sum equal to the wages that would have been payable in respect of the unexpired period of notice’.

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id-dritt the latter in full, whilst if the termination is immediate, therefore without requiring the notice period to be worked, the employee would still be entitled to the full remuneration for the entire notice period he would have had to work.39 In the situation where the employee fails to give notice, then the employer shall be liable to pay the latter a sum equivalent to half the remuneration of the notice period.40 Unlike the situation contemplated under the termination of fixedterm contracts, the law does not exclude from the remuneration any bonuses, commissions, allowances or other to be paid during notice periods. Nevertheless, it is to be pointed out that there can be situations where bonuses, commissions, allowances and others perks, are linked to some particular objective condition (such as annual performance or key performance indicators), which makes whether to include as part of the remuneration during notice period subjective.

Finally, the employee would be also entitled to a pro rata consideration of the statutory annual bonuses once notice is given, and the same applies if there is any vacation leave which was not utilised. Equally, in cases where the employee would have utilised any vacation leave which is above than that statutory allocated, the employee is bound to make good for such.

4. The Answer to the Dilemma Following the illustration of the basic differences between fixed-term and indefinite contracts,41 the decision to opt for a definite or indefinite contract of employment depends on several elements, including the nature of the employment, the duration and also sensitivity of the post itself within the corporate structure. Market practice demonstrates that the decision is 39 ibid.

40 Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, Article 36(10): ‘If an employee under a contract of service for an indefinite time fails to give notice as aforesaid, he shall be liable to pay to the employer a sum, equal to half the wages that would be payable in respect of the period of notice [omissis]’.

41 This article cannot be taken or considered as a full illustration of the Maltese Employment Law. Employment is one of the areas which is vastly legislated and regulated by several European Union directives and regulations.

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Employment Law generally one taken by the employer.

The above is to be considered from a practical perspective. The fixedterm contract of employment is to be considered when the employment is linked to a particular project or to a sensitive executive role (for example, Chief Executive Officer or Managing Directors). In the latter scenario, the contract termination date would tally with the forecasted project conclusion.

Some fixed-term contracts, especially those related to projects, provide for an automatic extension – the underlying rationale being to avoid having to renegotiate a contract should the anticipated project deadline extend beyond the originally anticipated date. Similarly, when dealing with senior executives fixed-term contracts are generally the natural option. The reason why an employer might opt this form of employment contract also depends on the sensitivity of the post.

For instance, in the case of a Chief Executive Office, the role requires, inter alia, a synergy between the CEO and management and with the Board of Directors. Should this not materialise, the employer may require the flexibility to terminate at will.

On the other hand, an indefinite contract is usually considered in those situations where the employee’s priority is security of tenure. Indefinite contracts are, by far, market practice in Malta.

In conclusion, it could be argued that in practice the employer is placed in a dominate position giving such the right to dictate the terms of the employment contract. Therefore, the reasoning behind the legislator to protect the interest of the employee – this also in the light of the Maltese Constitution, which safeguards the right of employees to work under proper work conditions.42

42 Constitution of Malta, Article 12(1): ‘The State shall protect work’.

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History of the Legal Professions

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Giovanni Bonello Lawyers and Lawyering in Malta before 1600

Giovanni Bonello was judge at the European Court of Human Rights for twelve years. Before that he had been a lawyer in private practice, specialising in human rights litigation, defending 170 human rights lawsuits before local and international courts.

He is the author or editor of 35 books on art, history and constitutional law, four of which won the Best Book of the Year award. Four full-feature books and a special edition of a law journal have been published about his legal and cultural achievements.

He was President of the Malta Historical Society, and is general editor of Fondazzjoni Patrimonju Malti publications, consultant to the Palace Regeneration Project, Chairman of the Strickland Foundation, of the Notarial Archives Foundation and of the Drug Offenders Rehabilitation Board. He was also Chairman of the university ethics board, a member of the main board of MEPA and chaired the National Committee for the Reform of the Administration of Justice. His interests include archival research, abstract photography and classical music.

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L

et’s face it: so far, we know virtually nothing about the origins of the legal profession in Malta or what it was like when the Order of St John of Jerusalem received the islands from the king of Sicily, the Emperor Charles V, in 1530. We take it for granted that lawyers were present and practiced their profession on these islands. Yes, but who were they? Where did they study and graduate? How were they regulated? What was their career path?

Albert Ganado’s invaluable book – half biography of his father Judge Robert Ganado and half chronicle of the Maltese civil service from 1815 and of the legal profession from 1666 – has fleshed out lists of lawyers who exercised their profession in Malta. The first name on these lists is that of Dr Gio Andrea Cangialanza, but he is only recorded as active as late as 1666.1 I sought to find out if I could push that date further back and fill in some gaps.

The vast Malta documentation of the Castellania Regia of the Court of Palermo, brilliantly and meticulously transcribed by Stanley Fiorini, repeatedly has mentions of advocates (jurisperitus, legum doctor, Doctor Utriusque Juris, I.U.D.) present and working in Malta, many mentioned by name. These sources range all the way from AD 1259 to AD 1500. Many of these Doctors of Law were obviously not Maltese, but (mostly Sicilian) lawyers who dealt with Maltese controversies in Sicily, or were specifically sent over to Malta to resolve complex legal issues. Most delegations from the Court of Sicily to Malta included advocates.

But some of those mentioned might perhaps have been Maltese, like Raimondo Implomaceri, legum doctor, appointed in 1409 to take over all civil and criminal lawsuits in Malta and Gozo, and determine them without right of appeal, except directly to Queen Bianca of Sicily.2 Again, Leonardo Bartolo, legum doctor is tasked in 1434 with certifying the ability of Andrea de Beniamino from Gozo to exercise the profession of notary.3 In 1456, the Court of Palermo overrides the Maltese universitas and appoints officials in Malta directly, among them Pietro di Modica, legum doctor as appeals judge, and Lanza Dasti, Nicola Raficano and Nicola de Zarlo as judges of the civil court.

1 Albert Ganado, Judge Robert Ganado (BDL Publishing 2015) 251.

2 Stanley Fiorini (ed.), Documentary Sources of Maltese History, Part II, No 2, (Malta University Press 2004) 133, 136, 138.

3 ibid., 369.

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History of the Legal Professions Were these lawyers Maltese?4 There are two Doctors of Law, Geraldo Aglata and Mariano Aglata, both chief notaries (protonotari), who appear repeatedly in the records, particularly in the examination and approval of Maltese and Gozitans to exercise the notarial profession, and other public offices, from 1462 to 1487. Were they established in Malta? Did the candidates travel to Sicily for these exams?5 One thing seems certain – Doctors of Law repeatedly appear in Maltese controversies. Whether they were Maltese or Sicilian is often quite difficult to establish.

The records of the Maltese notary Giacomo Zabbara also glimpse at the working of the legal profession. In 1488, Imperia Ziguchi, who owed money to Notary Lorenzo Falzon, entered into an agreement with him in Zabbara’s acts: Falzon would be her advocatus in a lawsuit for the recovery of a house she claimed as hers. The contract also included the stipulation that she would only pay her advocatus his professional fees if he succeeded in winning her court case.6 In another claim which Bartolomeo de Astis had won in 1494 in the Maltese courts, he had been assisted by two lawyers, Giovanni di Bonaiuto and Jacobo de Basilico, Utriusque Juris Doctorum.7 The lawyer Bonaiuto had already been mentioned earlier as a commercial partner in the export of barley and other merchandise from Malta to North Africa.8 The Mdina Cathedral Archives house the documents of the Universitas of Malta (roughly the local government in the pre-knights’ period). These are not very lavish with information about Maltese lawyers, but do at times let slip some data. When in 1482 a court case came about between the bishop and the Universitas regarding an inheritance, each party appointed a notary to collect and record the evidence – Pietro Caxaro and Andrea Falzon. The two parties objected to their adversary’s choice on the ground of partiality as both notaries had previously acted as advocates for the party now appointing them. The Viceroy in Sicily cut the bickering short: the two notaries must carry out the task jointly.9 4 ibid., 660.

5 ibid., and Part II, No 4, passim.

6 ibid., Part I, No 1, 309.

7 ibid., Part I, No 2, 8.

8 ibid., 6.

9 ibid., Part III, No 1, 41.

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id-dritt The ambassador of the Universitas to the court of Sicily in 1526 was the lawyer Antonio Bonello U.J.D. He carried back an order to the Maltese authorities to stop delaying merchants from leaving the harbours immediately the weather turned favourable, as this caused damage to the merchants and to the wellbeing of the island.10 Dr Bonello was kept very busy by the Universitas, as lawyer and as ambassador.11 The Universitas functioned also by means of capitula, written queries to the sovereign in Sicily for guidance in anything which fell outside its jurisdiction – and these occasionally referred to Maltese lawyers, like one in 1494. The jurats told the viceroy that Lorenzo Falzon and Giovanni Ciantar ‘were well versed in the law (curiali docti) but are not avvocati. They could however well serve the people, as very often lawsuits are lost due to the death of lawyers, and the population therefore suffers’. Sicily refused, almost indignantly.12 There are other sporadic mentions of Maltese lawyers much earlier than the 1530 watershed. Godfrey Wettinger reported ‹four or five Christian lawyers’ practising in Malta in the 1480s. One he mentions by name: Leonardo de Calavà, who acted as defence counsel of some Jews, it was alleged had been, rather forcibly, baptised and had later returned to their Jewish faith, thus committing the capital crime of apostasy. In their 1486 trial, Calavà displayed creative forensic skills. He mostly attacked the credibility of prosecution witnesses, one with a formidable argument: how can the court give credibility to a witness known to fart shamelessly in the public street?

The Calavà pleadings are the very first instances of a Maltese lawyer’s skills known to have survived in their entirety.13 It is rather sad that Maltese legal oratory starts with flatulence.

The final period of the Universitas, before the Order of St John took over in 1530, proves rather rich in Doctors of Laws working in Malta. There is the ubiquitous Dr Antonio Bonello, but also many other U.J.D.s, like Dr Pietro Cassar, Dr Signorello Varisano, Dr Giovanni Bernardo Petrarca, Dr Antonio

10 ibid., 167.

11 ibid., passim.

12 ibid., Part III, No 2, 239.

13 Godfrey Wettinger, The Jews of Malta during the Late Middle Ages (Midsea Books 1985) 62, 96, 102.

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History of the Legal Professions Bono (sometimes de Bono), Dr Blasco Lancia.14 Of these, only Dr Pietro Cassar, son of the Jurat Matteo was certainly a Maltese lawyer. He later rose to the rank of judge in the Captain’s court.15 All the others were Sicilian or Italian jurists sent to Malta by the Viceroy to investigate or determine legal issues that constantly bedevilled the island.

By now we have ascertained that lawyers were active in Malta well before the establishment of the Order in 1530. These seem to have fallen into two broad types: the advocatus, a person somehow versed in the law, but without a formal doctorate conferred by a university, and the Utriusque Juris Doctor, or Doctor of Both Laws - U.J.D. (or I.U.D., more commonly used in Malta, but which I discard, as those initials now refer to a contraceptive).

Doctors of Law were entitled to be addressed by the honorific title of Magnificus, Magnifico, today only reserved for Notaries Public. In fact, in the earlier Libri Conciliorum the names of lawyers and judges are often followed by their law degree, but in the later ones this is sometimes omitted and substituted by the title Magnificus before their name.

Very incidentally, it is to a Doctor of Laws that we owe the very first known mention of pizza in Malta and in Europe. As early as 1583, Dr Salvatore Xerri J.U.D. was hauled before the Inquisitor, charged with having eaten pizza in public on a Saturday. The Consultants of the Tribunal faced a wrenching dilemma: was it permissible to eat pizza on a day of penance when no other food was available?16 Was everyone charged with a criminal offence entitled to be assisted by a lawyer? The records do not furnish a clear answer, though the little evidence that survives seems to exclude this right. Fra Pierre de Sacconay, the Marshal of the Order, stood accused in 1587 of multa crimina, among others, of having vehemently contrasted the new rule that knights should not carry weapons, of having freed with violence a servant convicted of theft and of having insulted the judge of the Castellania in the presence of the Grand Master. Sacconay expressly pleaded to be allowed to be assisted by a defense lawyer, but his request was turned down and he had to conduct 14 Stanley Fiorini, (n 2) Part. III, No 3, 1197.

15 ibid., 994, 1001.

16 Vincent Borg, Melita Sacra, Vol. II, (Vincent Borg 2009) 416.

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id-dritt his defense in person. Six years later, the whole criminal proceedings against Sacconay were annulled by the Pope in Rome, though not for lack of a defense lawyer.17 The Libri Conciliorum, besides throwing some light on lawyers, very occasionally help us to understand how Maltese judges operated. One instance is in 1582 when the question arose whether the judges of the Mdina jurisdiction, the Corte Capitanale, were entitled to pocket a percentage of the fines they had imposed on delinquents in the criminal court. They petitioned Grand Master La Cassiere not to deprive them of this privilege. The Grand Master in Council complied.18 This terrible abuse was only abolished in the early British period.

The question remains: how and where did Maltese lawyers obtain their law degree? Doctorates are only awarded by universities, which Malta lacked up to 1769.

The U.J.D. degree in law refers to a ‘Doctorate in Both Laws’, Canon and Civil, granted from the late middle ages by Catholic and Germanic universities, in Malta now substituted by LL.D. which means more or less the same, doctor of laws, not law. But where did Maltese students obtain their law degree prior to 1769?

The situation is clear for those who graduated with a Doctorate in Both Laws to further their career in the church. For these, plentiful evidence survives that they earned their J.U.D. mostly from the universities of Rome and Naples. Prof. Vincent Borg has undertaken very extensive research into the legal training of Maltese students in the 15th and 16th centuries, and how many of them proceeded to Italy, sometimes on scholarships made available by the Cathedral Chapter; these, however, refer to those studying for the priesthood.19 But Mgr Borg also gives the following lists of Maltese laymen who obtained their law degree in Italy in the 16th century:

17 [A]rchivum [O]rdinis [M]elitae 97, f.95v, f. 98v; Bartolomeo dal Pozzo, Historia, Vol. 1 (Verona 1703) 280 - 281.

18 AOM 96, f. 66v.

19 Borg (n 16) 73 et seq.

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History of the Legal Professions

Before 1550 • • • • • • •

After 1550 – Naples

Dr Antonio Bonello (before 1520) Dr Antonio Desguanez Dr Giovanni Vassallo Dr Nicola Xerri Dr Michele Allegritto Dr Antonio Bonello Dr Ludovico Platamone

• •

After 1550 in Rome • • • • • • • • • • • • • • • • •

Dr Francesco Xerri, 1553 Dr Nicola Pietro Xuereb, 1553 Dr Francesco Surdo, 1561 Dr Melchiorre Cagliares, 1563 Dr Valerio Micallef, 1563 Dr Giovanni Vassallo, 1563 Dr Giovanni Vincenzo Lubrano, 1570 Dr Giovanni Xara, 1580 Dr Cipriano Caxar, 1584 Dr Nicola Antonio Muscat, 1587 Dr Aurelio Vassallo, 1588 Dr Ascanio Surdo, 1591 Dr Antonio Bosio, 1594 Dr Giuseppe Turrense, 1594 Dr Valerio Mizzi, 1598 Dr Placido Abel, practiced as Notary Dr Martino Zammit, practiced as Notary 199

Dr Bartolomeo Tabone, 1590 Dr Giovanni Angelo Anastasio, 1593

id-dritt It will be observed that some of these names do not appear in the bionotes compiled below. This may be due to several reasons. Foremost, that the notes refer to lawyers who took up public offices, mostly with the Order. The others may have pursued their law career in the private sphere, village lawyers in the better sense of the word. Or they may simply not have practised as lawyers after obtaining their doctorate.

As these lists do not contain several names of other known Maltese Doctors of Laws, it is fair to assume that those not mentioned obtained their law degrees from other Italian universities, like Catania, Palermo, Florence or Bologna, not from Naples and Rome.

Dr Fabrizio Cagliola J.U.D. (1604 -1665) a leading Maltese lawyer, wrote a fascinating semi-autobiographical memoir, but fails to mention where and how he obtained his law degree.20 And Dr Ignazio Saverio Mifsud, himself a lawyer, who later wrote Cagliola’s biography describing him as ’an excellent jurist and a superlative advocate’, similarly fails to mention anything about his training in law.21 Mifsud wrote about and praised several early Maltese lawyers, but not once does he reveal where they obtained their law degree.

There seem to have been very few dull moments in the lives of legal practitioners in Malta in the cinquecento – murders, woundings, torture at the rack, brothels, multiple mistresses, bribery and corruption, gay sex, pimping for virgins. Judge Cagliares was reputed to run three mistresses concurrently, while Judge Micallef frequented high-class bordellos. Dr de Spluchi was murdered, Judge Calli was grievously wounded. The Inquisition took a loving interest in Dr Cadamusto, Dr Xerri, Dr Cumbo, Dr Bonello and others. Dr Bonello was also accused of attempting to murder the Grand Master. Dr Torrense availed himself of the services of a pimp to enjoy a young virgin, Dr Spatafora smarted under physical violence, Dr Xerri was embroiled in a gay sex scandal, and Judge Cumbo suffered public accusations of bribery and corruption. These are the ones we know of.

20 Lib. Ms 654.

21 Ignazio Saverio Mifsud, Biblioteca Maltese (Malta 1764) 276.

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History of the Legal Professions The data recorded in this article would have been more focused and relevant had it been profiled together with clearer information about the legal structures within which the legal profession operated – the different courts, the professional hierarchies, the support systems. But, again, so very little is so far known about them. Just the barest outlines will have to suffice at this stage.

When the Order of St John took over Malta, various separate justice systems were in place. One catered exclusively for criminal justice against members of the Order suspected of having committed felonies. The Council of the Order transformed itself into a criminal court (called the Sguardio) which investigated, prosecuted and adjudged the suspect knight. As the Order could not inflict the death penalty, in those cases in which it believed death to be the right reward, the Council first expelled the delinquent knight, and then handed him over to the ordinary criminal courts for a retrial which could end in execution.

The second system of justice was the Castellania, in place for anyone who was not a member of the Order. It comprised three courts: civil, criminal and appeal. The judges, prosecutors, lawyers and officials who manned the Castellania were almost exclusively Maltese. But Mdina also had its own regional courts, the Corte Capitanale and there was the Gozo court which exercised general civil and criminal jurisdiction.

Besides the ‘lay’ jurisdictions, two separate ecclesiastical tribunals helped to clutter the legal panorama. The Bishop’s tribunals were mostly manned by ecclesiastical J.U.D.s. Quite active too were the Inquisitor’s courts. Many Maltese lawyers found work there: as legal assessors (virtually deputy Inquisitors), as Promotori Fiscali, i.e., directors of prosecutions, or as Advocates for the Poor. The many Maltese lawyers identified below spent a busy life in these various courts.

I have here reconstructed a tentative checklist for this period, with the sketchiest of bio-notes, some rather shocking. Lawyers elevated to the judiciary often reappear later as practising advocates. This is because judges did not, before 1815, have a lifetime’s security of tenure. They were appointed or reappointed periodically for short periods, usually for two years, in alternate autumns.

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id-dritt Dr Guglielmo (Bartolomeo) Abela (Habel) J.U.D. is in 1567 delegated advocate for the poor, widows and orphans or minors (pauperum, viduarum et pupillorum).22 Fra Gabriel Frias de Lara lost a court case against Dr Abela and appealed.23 In 1590 the Council elected him auditor of acts of governance of Valletta, Vittoriosa, Notabile and Gozo.24 The Grand Master, in 1594, issued a decree favouring Dr Abela.25 There must have been bad blood between Dr Abela and Judge Giovanni Maria Mamo sitting in Gozo. The Council was called upon to adjudicate their difficulties on three separate occasions.26 Still active in 1599, Dr Abela is delegated to audit the affairs on Malta and Gozo.27 Mifsud adds that Abela was universally acknowledged as the leading criminal lawyer of his times in Malta. The Inquisition in 1563 appointed him prosecutor. Grand Master Verdalle also made use of his services when he came to redraft the Leggi e Costituzioni Prammaticali in 1593.28 Dr Antonio Bonello J.U.D. (There were two lawyers called Antonio Bonello in the sixteenth century, very likely father and son, and their periods of forensic activity overlapped. At this stage, it is sometimes not possible to distinguish which of the two the records are referring to). Dr Bonello Sr graduated Doctor of Laws in the University of Catania, the oldest in Sicily, round the turn of the century,29 and was already very prominent as a jurist before the arrival of the knights and quite likely the first Maltese to have obtained a doctorate of law; he found favour with the Order too. In 1565 the Council substituted him to Dr Nicola DeNaro J.U.D. in the criminal trial for sodomy against Fra Alvaro Fasano.30 In 1582, the Council appoints Dr Bonello (probably Jr) to audit the affairs of the officials in charge of Malta and Gozo.31 One criminal case in which Dr Bonello was involved is emblematic of the mobility of Maltese lawyers and their close interaction. In June 1595, 22 AOM 92, f. 34v.

23 AOM 95, f. 198v.

24 AOM 98. F. 35.

25 AOM 98, f. 198v.

26 AOM 100, f. 130v, f. 145, f. 155.

27 AOM 100, f 127v.

28 Mifsud (n 21) 82 – 83.

29 GiovanAntonio Ciantar, Malta Illustrata, Vol. 2 (Malta 1780) 402.

30 AOM 91, f. 134.

31 AOM 96, f. 79v.

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History of the Legal Professions Fra Girolamo Piscina stood accused of various crimes.32 Shortly after, he was murdered. On the 19 December, the Council plays around with five Maltese lawyers: it substitutes Dr Bonello to Dr Valerio Micallef in the Piscina proceedings, and appoints Dr Pietro Muscat instead of Dr Paolo Cassar on the case of Dr Francesco Torrense.33 Incidentally, the Council found Fra Vincenzo Minardo guilty of the Piscina homicide and condemned him to a term of imprisonment.34 Dr Bonello had a very chequered career. Grand Master La Cassiere accused him of attempting to poison him, in conspiracy with Inquisitor Domenico Petrucci.35 But Bonello had himself been victim of the Inquisition when the physician Giulio Gratioso, his sworn enemy, had framed him with Domenico Cubelles, Bishop and Inquisitor, alleging he had turned Lutheran.36 In fact, the Inquisition did find Dr Bonello guilty of heresy in 1575.37 Dr Bartolomeo Bonello J.U.D., described as jurisperitus, is, in 1568, nominated advocate for the poor, widows, orphans or minors.38 In 1619 he appeared as witness in the will of the disturbed philanthropist Caterina Vitale.39 Dr Antonio Bosio J.U.D., better known as the leading archaeologist of the Roman catacombs, was born in 1575. Before channeling his energies to archaeology, he had a flourishing legal practice in the Roman Curia. He diedin 1629.40 Dr Galeazzo Cadamusto J.U.D. In 1551 the Council ordered that a mislaid pouch containing documents which identified the properties in Gozo belonging to those captured by the Ottomans in the great razzia of 1551,

32 AOM 99, f. 27.

33 AOM 99, f. 56.

34 AOM 99, f. 113v.

35 AOM 95, f. 224v; del Pozzo (n 17) 171.

36 Roger Ellul Micallef, ‘Sketches of Medical Practice in Sixteenth Century Malta’, in Paul Xeureb (ed.) Karissime Gotifride (Malta 1999) 111.

37 Michael Fsadni O.P., ‘The Dominicans’, in Lino Bugeja et (ed.) Birgu, A Maltese Maritime City, Vol. II, (Malta 1993) 698.

38 AOM 92, f. 52v.

39 Notary Vincella de Santoro, 8.7.1616 and AOM 1990, f. 135.

40 Mifsud (n 21) 88 – 96.

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id-dritt should be returned to Judge Cadamusto.41 In 1569 the Council appoints Dr Cadamusto to audit the acta et gesta of the jurats of Notabile.42 Six years later, the appointment is renewed with the inclusion of the affairs of all the captains of the towns and of the forts of the islands.43 Judge Cadamusto too had a close brush with the Inquisition. In 1582 he was investigated for witchcraft for having secretly written a book about divination through communicating with the dead.44 Dr Melchiorre Cagliares J.U.D. (also Cagliareno, Cagliarense, all indicating he was from Cagliari) was the father of the only Maltese bishop during the rule of the Order, Baldassare Cagliares (1575 - 1633). He first appears in the records in 1570, when he was appointed to audit the work of the Maltese officials of Mdina.45 Three years later he is Advocate for the poor, widows, orphans or minors46 and repeats the same audit.47 In the 1577 investigation into the atrocious murder (crudelissima morte) of Fra Giorgio Correa, Dr Cagliares played a leading role.48 Five years later, Cagliares, as criminal prosecutor, petitions the Council in Italian to query the validity of certain legal enactments.49 Cagliares suffered excommunication at the hands of Bishop Tommaso Gargallo, known for his incompetence in anger management. In one of the Bishop’s several confrontations with the Grand Master in 1579, Dr Cagliares sided against Gargallo, who promptly excommunicated him. The Rector of St Paul’s in Valletta cut his excommunicated former friend dead when they crossed each other on Palace Square. The Inquisitor recorded Cagliares’s threat in its original Maltese: ’Le tibzax, hecde kif fixkilt l’ohrajn, infixkil lilik’.50 In the 1584 high-profile criminal proceedings against Fra Francesco 41 AOM 94, f. 61.

42 AOM 92, f. 173.

43 AOM 94, f. 71.

44 Archivum Inquisitionis Melitae Crim. 5C, f. 1037.

45 AOM 92, f. 212.

46 AOM 93, f. 101.

47 AOM 93, f. 156v.

48 AOM 94, f. 161.

49 AOM 96, f. 80, f. 80v.

50 Carmel Cassar, Society, Culture and Identity in Early Modern Malta (Mireva Publications 2000) 160.

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History of the Legal Professions Sommaia, captain of the San Giovanni, one of the Order’s galleys, Fra Francesco was charged with responsibility for the loss of his galley to the Venetians, of having abandoned a captured Turkish vessel after having looted its merchandise, of having personally killed a soldier of his crew, and most unpardonable crime of all, of having served wretched meals on board, tavola sordidissima. The council arrested him and put him on trial. Dr Cagliares played a leading role in the prosecution.51 His career took an unexpected turn in 1589 when he tried to join the Order as a knight in the priory of Portugal, facing the strong, but unsuccessful opposition of the knights of that priory.52 But Cagliares, besides fathering bishops, left his mark in history for keeping three mistresses concurrently. To contain the prurient scandal, he slept with Marietta, her sister Caterina, and Marietta’s daughter. He believed strongly in family values.53 Dr Giovanni Calavà J.U.D., very likely the first Maltese lawyer to be promoted or confirmed judge, after the Order settled in Malta. It is reputed he advised Grand Master l’Isle Adam in his negotiations with Charles V about the transfer of Malta to the Order, and helped with the drafting of the 1530 legal minefield, the deed of cession. The Grand Master rewarded him by granting him a title of nobility with an endowment of territories at Għajn Qajjet. Some lands of the wealthy Secretia, the Maltese office which administered the properties of the Sicilian crown on the island, were willed to the minor Joannella de Guevara, and Calavà was appointed to act as curator during her minority.

Calavà numbered with those well in with the new rulers: fideliter et diligentes obsequies Religionis nostre intendent.54 Dr Giovanni Calli (or Cali) J.U.D. In 1574 Calli is appointed to audit the affairs of the public officials of Valletta and Vittoriosa.55 But the Grand Master later removed him as suspectus, i.e., because of a possible conflict of interest.56 The following year he was involved in the proceedings against Fra Onofrio Acciauoli, receiver of the Order in Messina, accused of having abused his 51 AOM 96, f. 179; dal Pozzo, op. cit., 248.

52 AOM 97, f. 189v, f. 190v, AOM 98, f. 15v.

53 Carmel Cassar, Hyphen, Vol. 4, No 6 (Malta 1986) 225.

54 AOM 416, f. 193; AOM 414, f. 273v, f. 203; Lorenzo Schiavone, Pietrino del Ponte (Asti 1995) 195.

55 AOM 94, f. 29.

56 AOM 94, f. 35.

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id-dritt office.57 In 1577, Fra Alberto Arrighi from Florence, professed only two years earlier, wounded Judge Calli ’with copious bloodshed’.58 Dr Paolo Vella was appointed to compile the evidence, but shortly after was substituted by Dr Francesco Torrense.59 For wounding Calli, the Council condemned Arrighi to one year detention in the tower.60 The Council in 1590 imprisoned the turbulent knight for killing Polidoro Bernardino Mattei.61 The jurist later received the commission to audit all the affairs that fell under the jurisdiction of the Mdina officials,62 repeated in 1579.63 Shortly after, the minutes of the Council record that a challenge by Dr Paolo Vella and Dr Giovanni Vassallo against Dr Calli, was to be deemed unfounded.64 The Council again makes use of Calli’s services in the criminal proceedings against Fra Antonio de Vega and Fra Pedro Queiroz.65 But Calli was aware of his linguistic limitations. In 1584, when judge of the Civil Court, he petitioned the Grand Master to be relieved of hearing minor cases on the ground that his grasp of Maltese was poor. He recommended the appointment of the lawyer Dr Giovan Paolo Micci (Mizzi) who had a good command of Maltese, in his stead.66 In 1595, the Council substitutes Dr Gio Domenico Vella to Dr Cagliares in the criminal proceedings against Fra Andre de Martine called Pellubier.67 1597 saw Calli’s promotion to the Court of Appeal,68 confirmed in 1601.69 Dr Calli, son of Michele, drew up his last wills on the 30 July 1616 and the 26 June 1623 in the records of Notary Giovanni Carabott.

57 AOM 95, f. 58, f. 63.

58 AOM 95, f. 37.

59 ibid.

60 AOM 95, f. 52v.

61 AOM 98, f. 32.

62 AOM 95, f. 95v.

63 AOM 95, f. 151.

64 AOM 95, f. 162.

65 AOM 97, f. 181.

66 Cassar (n 51) 161.

67 AOM 99, f. 107.

68 AOM 100, f. 20v.

69 AOM 100, f. 196v.

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History of the Legal Professions From Francesco Saverio Mifsud we learn that Grand Master Verdalle eventually promoted Calli to be his Uditore and the lawyer’s wisdom helped Verdalle solve tutti gli intrigatissimi affari of the Order. Calli’s top legal achievement was the redrafting, together with other Doctors of Law, of the Leggi e Costituzioni Prammaticali published by Verdalle in 1593. His specialty was criminal law and this earned him the post of prosecutor of the Inquisition in Malta. His legal opinions and reports, bound in two manuscript volumes, retained their popularity and authority for many years after his death.70 Dr Alfonso Cassar J.U.D. Very little is known of this Maltese lawyer, and he is not mentioned in the Libri Conciliorum. But he accompanied Dr Ludovico Platamone on the Maltese embassy to the Viceroy of Sicily in 1591. Mifsud refers to him as a Maltese advocate who enjoyed great credit and high reputation on the island.71 Dr Paolo Cassar J.U.D. was appointed auditor for the affairs of the local governments of Malta and Gozo in 1597 and again in 1601.72 He was the Legal Assessor in the Inquisition proceedings against Giorgio Scala in 1598.73 The Inquisition employed Dr Cassar as Legal Assessor between 1609 and 1614.74 Dr Giovanni Vincenzo Cavalevecchio J.U.D. Found mentioned only once.75 Dr Agostino Cumbo J.U.D. Jurist who worked alternatively as a lawyer and as a judge, remained notorious for his submission to Grand Master d’Homedes to pervert the course of justice. When Tripoli, belonging to the Order, fell to the Ottomans in 1551, the indignant eyes of the Christian world fell on Malta.

D’Homedes, who had grossly neglected the defence of Tripoli, found himself accused of ineptitude. To shift the universal blame from himself, he had to find a scapegoat. The blame fell on the defenders of Tripoli, the valiant Fra Gaspar de Valies and all the other surviving knights.

D’Homedes accused them of passivity and cowardice in the face of the enemy and had them all defrocked. No longer knights, they were sent to 70 Mifsud (n 21) 80 – 82.

71 ibid., p. 78.

72 AOM 100, f. 22v, f. 196v.

73 Dionisius A. Agius, Giorgio Scala and the Moorish Slaves (Midsea Books 2013) passim.

74 Alexander Bonnici, Medieval and Roman Inquisition in Malta (Reliġjon u Ħajja 1998) 307.

75 AOM 438, f. 261, f. 261v.

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id-dritt the ordinary criminal courts, presided over by Judges Cumbo and Giovanni Vassallo, who condemned them to death. Fra Durand de Villegaignon, publicly, and in a printed pamphlet, accused d’Homedes of having bribed Judge Cumbo (‹a man easily corrupted, being always ready to sacrifice his conscience to his love of money’) to shift the blame from himself onto de Valies and the surviving defenders. A substantial sum of money, paid in gold in advance, did the trick.76 Cumbo is mentioned again in 1559 when the Council appointed him to assist the commissioners delegated to examine and report on a court case pending between three knights.77 Agostino may have been one of the first of the illustrious, often infamous, dynasty of Cumbo jurists who dominated the legal panorama of Malta during the whole duration of the Order’s rule.78 In 1563 the Council appoints the usual board of enquiry to investigate his conduct as judge.79 The year before the Great Siege, the Council tasks Cumbo to audit the performance of the Jurats of Birgu.80 Dr Cumbo too had fallen foul of the Inquisition. He was suspected of Lutheran sympathies, and either he, or his co-accused, suffered torture at the rack.

Dr Camillo Cumbo J.U.D. Found mentioned only once.81 Dr Pietro Cumbo J.U.D. first appears in the Libri Conciliorum when he was appointed Advocate for the Poor in 1556.82 Like several other Maltese lawyers, the Inquisition investigated him on suspicion of Lutheran sympathies.83 Dr Nicola D’Agatha J.U.D. The records mention him in 1546 when he was already a Judge, charged with a criminal trial. He asked the Council of the Order to suspend proceedings against Giovanni from Salonika for crimes he was accused of having committed in Tripoli when the North African town 76 AOM 98, f. 94v; Louis de Boisgelin, Ancient and Modern Malta, Vol. 2 (London 1805) 46 – 55.

Boisgelin’s source is probably Villegaignon’s pamphlet, De Bello Melitensi (Paris 1555).

77 AOM 90, f. 64.

78 Giovanni Bonello, Histories of Malta, Vol. IX (Fondazzjoni Patrimonju Malti 2008) 140 – 153.

79 AOM 91, f. 109v.

80 AOM 91, f. 176.

81 AOM 436, f. 272.

82 AOM 89, f. 94v.

83 Bonnici (n 76) 13.

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History of the Legal Professions still belonged to the Order.84 D’Agatha was a Sicilian Notary from Mazara del Vallo who had settled in Malta with his wife Isolde, very likely the parents of the very first Maltese Jesuit, Fr Luigi D’Agatha, SJ. Dr Pasquale de Franchis J.U.D. His first mention in the Libri Conciliorum dates to 1574, when the Council appoints him to examine the affairs of Mdina, its Captain of the Rod, its jurats, the Castellan and the Judges.85 In 1577, he, together with Dr Francesco Turrense, is appointed arbitrator in an important law suit between Fra Pietro Giustiniani, Prior of Messina, and leader of the Order’s fleet at the Battle of Lepanto, and Fra Giuseppe Arborio. The two lawyers published their joint award, drafted exceptionally in Italian, in the Council.86 Dr Francesco Garibo J.U.D. was in 1586 made Advocate for the Poor87 and appointed Judge of the Civil Court in 1599.88 Dr Giorgio Gianpieri J.U.D. named in 1575 advocate for the poor, widows, children or orphans.89 His public legal career included the auditing of the affairs of the cities of Malta and of Gozo in 1577,90 and commissioner for housing.91 After obtaining a Doctorate in Laws, Gianpieri entered the priesthood as a conventual chaplain in 1580, and eventually reached the very highest positions: Vice-Chancellor, Uditore all the way up to Grand Prior in 1592, though his election to the grand priorate was legally, though unsuccessfully, challenged in Rome.92 The following year, the Council imprisoned Fra Andrea Salvatore for verba injuriosa et immmodesta bawled at Dr Gianpieri.93 His juridical expertise was determining in the promulgation and publication of the Leggi e Costituzioni Prammaticali issued by Grand Master 84 AOM 87, f. 82v.

85 AOM 94, f. 156v.

86 AOM 95, f. 6.

87 AOM 100, f. 47.

88 AOM 100, f. 121v.

89 AOM 95, f. 85v.

90 AOM 97, f. 143v.

91 AOM 97, f. 181.

92 Dal Pozzo (n 17) 334.

93 AOM 100, f. 106.

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id-dritt Verdalle in 1593.94 It is touching to record that on his deathbed, Verdalle wanted to receive the last sacraments at the hand of the former lawyer and of the Capuchin friars he had patronised.95 Dr Pietro de Giovanni J.U.D. is only mentioned in 1591 when the Council appoints him to audit the affairs of Valletta, Vittoriosa, Mdina and Gozo.96 Dr Federico de Gromo J.U.D. The Council appoints this Doctor of Laws in 1598 to act as the conservator of the Order’s privileges.97 Dr Jacobo Lo Perno J.U.D. is mentioned in 1561 in connection with his appointment to audit the work of the Captain of the Rod of Mdina, and again the following year.98 Dr Antonio Mahnuq J.U.D. The Mahnuq, an old, notable and wealthy family from Gozo, had the surname italianised to Maccanuzio (once to Mahanne).

The Order appointed him Judge of the Castellania in 1597,99 and of the Civil Court in August 1602,100 but in November the Jurats petitioned the Council to have him removed from some legal affair, and he is substituted by Judge Ascanio Surdo.101 Dr Giovanni Maria Mamo J.U.D. He was Judge in the Gozo Court in 1599.102 The following year the Council ordered the auditors to determine according to justice a petition by Dr Mamo.103 Dr Mamo acted as Judge of the Castellania, married Leonora Vassallo and among his children numbered Dr Gregorio Mamo J.U.D., who, in turn, married Paola, daughter of Judge Ascanio Surdo, J.U.D.104 94 Mifsud (n 21) 73 – 76.

95 AOM 99, f. 6v, f.16.

96 AOM 98, f. 57v.

97 AOM 100, f. 22.

98 AOM 91, f. 42v, f. 81v.

99 AOM 100, f. 20v.

100 AOM 100, f. 249v.

101 AOM 100, f. 258.

102 AOM 100, f. 130v, f. 135, f. 145.

103 AOM 100, f. 155.

104 Ciantar (n 29) 457.

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History of the Legal Professions Dr Francesco Mego J.U.D. This very high-profile jurist, born in Malta of noble Rhodiot parents who had followed the Order after its expulsion from Rhodes in 1523, is repeatedly mentioned in the Libri Conciliorum, the first time in 1552 when Grand Master Juan d’Homedes appoints him as Judge in all civil and criminal proceedings.105 By 1557, Grand Master de Valette entrusts him with the highest civil responsibility, that of Uditore, minister with judicial authority, the most powerful office in the civil governance of the island.106 Mego was also one of the Commissioners delegated in 1557 to report on the Moretto affair, which had significant international resonance.107 The following year the Council appoints Mego to the official investigation into a nasty brawl between two leading knights.108 Another major career leap came in 1560, when the Council appoints Mego as lieutenant and coadjutor of the Vice-Chancellor of the Order.109 And other promotions follow,110 including his nomination as Acting-Chancellor.111 Mifsud supplements some information about Mego. The Council eventually elevated him to Uditore, although the statutes laid down that only professed knights could aspire to that rank. He must have been among the first of a long series of Maltese Uditori, generally lawyers. Mego, together with Giovanni Vassallo, was responsible for the updating and redrafting of the Statutes of the Order willed by Grand Master Verdalle. Bishop and Inquisitor Domenico Cubelles appointed Mego assessor of the Inquisition, a post almost invariably held by a leading jurist.112 Dr Valerio Micallef J.U.D. In 1579 the Council entrusted Dr Micallef to represent it in the matter of its privileges and prerogatives in the Order’s disputes with the fiery Bishop Tommaso Gargallo.113 The following year, news of the theft, from the sacristy of St John, of one the most treasured relics of the knights – a segment of the skull of St John encased in a disk of solid gold studded with precious stones – shocked the Order. Micallef was one of the 105 AOM 88, f. 120v.

106 AOM 89, f. 120v.

107 AOM 89, f. 99, f. 100. For the Moretto affair see: Bonello (n 80) 96 – 111.

108 AOM 90, f. 18v.

109 AOM 90, f. 126.

110 AOM 91, f. 61.

111 AOM 91, f. 87v.

112 Mifsud (n 21) 30 – 31.

113 AOM 95, f. 142v, f. 143.

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id-dritt commissioners chosen to investigate the sacrilegious robbery. He found the culprit – Fra Vincenzo Pesaro, who had, sadly, already broken up the relic for melting.114 A number of knights, charged with having committed ‹various excesses’ in Messina in 1587, were investigated by Micallef.115 And when the terrible plague broke out in 1592, one of the measures taken was to appoint Micallef assessor in causa de regimine sanitatis.116 By 1594, the Council selects him to audit the affairs of Valletta, Mdina and Gozo.117 The following year Micallef becomes Judge of the Castellania118 (see also Dr Antonio Bonello, above).

But Micallef left traces in the records not solely for his undoubted forensic skills. He was an assiduous frequenter of an exclusive, high-class bordello kept by Nardu Mamo in Ħaż-Żebbuġ. Mamo only admitted the highest knights and the classiest whores to his home in the village.119 Dr Giovan Paolo Micci (Mizzi) J.U.D. Dr Valerio Micci (Mizzi) J.U.D. Two Micci lawyers are mentioned towards the end of the century. In 1584, Judge Calli proposed Dr Giovan Paolo Micci J.U.D. to stand in for him in minor civil cases, as Micci had a better grasp of Maltese than he did.120 And the Inquisition in 1614 promoted Dr Valerio Micci J.U.D., who had until then worked as Advocate of the Poor in that institution, to Assessor.121 Dr Nicola Muscat J.U.D. is recorded in 1589 when the Council choose him to audit the affairs of Valletta, Birgu, Mdina and Gozo.122 114 AOM 95, f. 197, f. 199v, f. 204v.

115 AOM 97, f. 91v.

116 AOM 98, f. 98.

117 AOM 98, f. 178v.

118 AOM 99, f. 34v.

119 Carmel Cassar, Daughters of Eve (Mireva 2002) 38.

120 Cassar (n 51) 161.

121 Alexander Bonnici, Storja tal-Inkwiżizzjoni ta’ Malta, Vol. 1 (Franġiskani Konventwali 1990) 191.

122 AOM 97, f. 188.

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History of the Legal Professions Dr Pietro Muscat J.U.D. was elected auditor of the affairs of Malta in 1595123 and Judge of the Castellania in 1597124 (see also Dr Antonio Bonello, above).

Dr Nicola deNaro (or Naro) J.U.D. is first mentioned in 1564 in connection with the criminal proceedings against the British knight Sir John James Sandelands, later convicted of the sacrilegious theft of precious silverware from the Church of St Anthony in Birgu. DeNaro’s instructions included the order to obtain evidence by indicia, conjecturas et presuntiones, (circumstantial evidence and legal presumptions) and, of course, recourse to torture.125 DeNaro also investigated Fra Alvaro Fasano, accused in 1565 of sodomy. He was however later removed from the case and substituted by Dr Antonio Bonello J.U.D.126 The Inquisition employs Dr DeNaro as Legal Assessor in 1565 and 1566.127 Dr Girolamo Nicco J.U.D. is mentioned only once, in 1581, in the Libri Conciliorum, when the Council authorised the Prior of Lombardy to substitute Dr Nicco for himself in the lawsuit to recover the property of Matteo Minali.128 Dr Ludovico Platamone J.U.D. from Gozo went through a brilliant legal career. In 1570 the Council required from him a complete audit of all that the Captain of the Rod, the Jurats, the Treasurer and all the public officials of Mdina had done.129 Five years later Fra Philip de Foissy is investigated for outrageous words hurled at Platamone, now Judge.130 Platamone, like many other Maltese lawyers, had troubles with the Inquisition; he was investigated twice, the first time in 1574, the second time in 1579.131 One of the penalties the lawyer incurred in 1576 at the hands of the Inquisition was to subsidize to the tune of 20 scudi the purchase of liturgical books needed by the church of the Annunciation in Birgu.132 When in 1593 123 AOM 99, f. 35.

124 AOM 99, f. 41.

125 AOM 91, f. 132, f. 133v.

126 AOM 91, f. 133v, f. 134.

127 Bonnici (n 76) 307.

128 AOM 95, f. 283v.

129 AOM 92, f. 211v.

130 AOM 94, f. 48v.

131 Cassar (n 51) 218.

132 Fsadni (n 37) 700.

213

id-dritt a bomb exploded on the doorstep of the 27-year-old Caterina Vitale, a turbulent pharmacist and sex-worker, the Council appointed Dr Platamone and two knights to investigate this ‹extremely serious and dastardly crime… an atrocious and pernicious example’.133 Platamone became Judge of the Appeal Court in 1595.134 Mifsud adds that Platamone, when in private practice as a lawyer, had ‘interminable queues of clients’, and eventually rose to the highest ranks of the legal profession: various times Judge of first instance, and of the Supreme Court of Appeal, Uditore of Grand Masters de Valette and la Cassiere. He was designated ambassador of Malta, together with Dr Alfonso Cassar, to the Viceroy of Sicily in 1591. Apart from his great expertise in legal matters, Platamone was renowned for his outstanding integrity. He died in 1604.135 Dr Rolando Scerri J.U.D. In 1569 the Council appointed Dr Scerri to examine the work of the jurats of Vittoriosa.136 Dr Ortensio Spatafora J.U.D. is the very first Maltese lawyer mentioned in the Libri Conciliorum, in connection with an outrage he suffered in the ‘public archives’ at the hands of an irascible knight, Fra Bartolomeo Vasco, in I542.

The knight slapped the lawyer violently across the face. The Council of the Order took a rather dim view of Vasco’s bravado and sentenced him to be detained in the smaller underground guva in Gozo for two months.137 Dr Antonio de Spulchi, J.U.D. is only known because a knight, Fra Antonio Bracalona (from Rome, professed in 1569), murdered him in 1579. As the Order had abolished the death penalty for its members, the knight was defrocked so that he could then be handed over to the ordinary criminal court to be tried and if found guilty, executed.138 Dr Ascanio Surdo J.U.D., son of another lawyer, Dr Francesco Surdo J.U.D., was born in 1563. He was made Judge of the Castellania in 1597139 and after four 133 AOM 98, f. 147v.

134 AOM 99, f. 34v.

135 Mifsud (n 21) 76 – 80.

136 AOM 92, f. 173.

137 AOM 86, f. 130v.

138 AOM 95, f. 126, f. 129.

139 AOM 100, f. 20v.

214

History of the Legal Professions years, raised to the Court of Appeal.140 Two years later he was confirmed in that Court141 and in 1602 substituted Judge Dr Antonio Mahnuq at the request of the Jurats in some legal matter.142 He rose to a meteoric and intense legal career, reaching the highest offices of Judge and Uditore to Grand Master Alof de Wignacourt ‹for his doctrine and integrity’. He died aged 93.143 Dr Bartolomeo Tabone J.U.D. was appointed Judge of the Civil Court in 1601.144 Dr Gio Domenico Testaferrata J.U.D. mostly worked as lawyer for the Inquisition, in the office of Promotore Fiscale, roughly, director of prosecutions.

In 1598 he directed the investigation and prosecution of Giorgio Scala145 and served the Inquisition in a legal capacity all his professional life. He was later promoted to Assessor of the institution.146 According to Ciantar, Dr Gio Domenico was closely related to two other Maltese lawyers, Dr Giacomo Testaferrata, later Judge of civil cases in the Corte Capitanale of Mdina, and Dr Paolo Testaferrata. He died in office around 1614.

Dr Francesco Torrense (or Turrense) J.U.D. In 1570, the Council tasked Dr Torrense to audit the acts of governance of the Castellan of Vittoriosa, Fra Francesco Marzilla.147 Two years later he is appointed Advocate for the poor, widows, orphans or minors.148 This lawyer too, fell foul of the Inquisition. He was arraigned in 1574, found guilty, but pardoned after he retracted.149 After the wounding of Judge Calli in 1575 by Fra Alberto Arrighi, Dr Torrense replaced Dr Paolo Vassallo in the case against the vile-tempered knight.150 He was then delegated as arbitrator in the controversy between the Prior 140 AOM 100, f. 196v.

141 AOM 100, f. 121v.

142 AOM 100, f. 258.

143 Mifsud (n 21) 103 – 106.

144 AOM 100, f. 196v.

145 Agius (n 75) passim.

146 Ciantar (n 29) 484.

147 AOM 92, f. 195v.

148 AOM 93, f. 81v.

149 Fsadni (n 37) 698.

150 AOM 95, f. 37.

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id-dritt of Messina and Fra Giuseppe Arboreo (see Dr Pasquale de Franchis).151 His turn to act again as Advocate for the poor, widows, orphans or minors came in 1588.152 But in 1595 the prosecutor of the auditors petitions the Council to have Torrense removed153 (see also Dr Antonio Bonello, above).

Dr Torrense’s real surname was Rocchione (Turrense was the approximate Latin translation), and he was born in Savoia. By the time of the Great Siege he had already settled in Malta. He drew up his last will on 7 October 1599.

He fathered two sons, both lawyers: Antonio, an illegitimate offspring, and Giuseppe. The two married into lawyer dynasties, the Cumbo and the Pontremoli.154 Dr Torrense too found himself embroiled in the wiles of Maltese whores. Domenico Carceppo accused the procuress Margherita Zammit of having prostituted his still-virgin sister-in-law Lauria with the lawyer. The affair lasted a couple of months and only ended when Domenico started turning heavy on Torrense.155 Dr Giovanni Vassallo J.U.D. The records first mention him when already a judge in 1547 in connection with the insults and invectives hurled his way by Fra Domenico de Sbach.156 Five years later the Council subjected him to an investigation about his activity as a judge.157 Since these enquiries into the conduct of judges are rather common, it is not clear whether these were routine audits of members of the judiciary or specific investigations into some alleged misdeed. In 1561, Dr Vassallo was submitted to a similar ‘enquiry’.158 The year after the Great Siege, the Council appointed Vassallo Advocate for the poor, widows and minors or orphans.159 By 1595, the Council designated him Judge of the Castellania.160 Vassallo had already been Judge of Corte Capitanale in Mdina in 1534.

Ignazio Saverio Mifsud praises the lawyer’s forensic virtues; ‹always ready to 151 AOM 94, f. 190v.

152 AOM 97, f. 143.

153 AOM 99, f. 40.

154 Mikiel Fsadni, Id-Dumnikani fil-Belt (Malta 1971) 49.

155 Cassar (n 121) 39.

156 AOM 87, f. 129v.

157 AOM 88, f. 118.

158 AOM 91, f. 25, f. 26.

159 AOM 91, f. 178.

160 AOM 99, f. 41.

216

History of the Legal Professions take up the defence in lawsuits, shrewd in solving the difficulties that arose, sombre, but at the same time welcomed by everyone, especially by the illustrious Order of St John of Jerusalem’. Grand Master la Sengle entrusted to him the amendment, amplification and commentary of the Statutes of the Order and rewarded him with ‘liberali donativi’. In 1590 Vassallo was honoured as Senator of Mdina.161 The major blot on Vassallo’s reputation was his participation in the conspiracy to condemn to death the knights who survived the loss of Tripoli in 1551 (see Agostino Cumbo above).

Dr Gaspare Vella J.U.D. first appears as advocate for the poor in 1601.162 Dr Gio Domenico Vella J.U.D. In 1596 Dr Vella substitutes Dr Calli in the criminal proceedings against Fra Andre de Martine.163 Three years later Dr Vella is made Judge of the Criminal Court.164 That same year, the Council orders him to start criminal action against Fra Joseph de Guevara for subreptitia (deceptions) against the privileges of the Order.165 At the same time Dr Vella had also landed a job with the Inquisition as Advocate for the Poor.166 The Dominican friars in Valletta appointed Dr Vella as their lawyer, and in 1603 rewarded him by the grant of a chapel in their church in lieu of payment.

Dr Vella was the son of Salvatore and Antonella, and in 1589 married the bishop’s sister, Maddalena, daughter of Dr Melchiorre Cagliares.167 Between 1605 and 1609, the Inquisition employed Dr Vella as its Legal Assessor.168 Dr Vella is described in the most flattering terms: ‹the depth of his knowledge, the wise prudence in all his acts, and the maturity of his deliberations’ earned him the post of Assessor and Consultor of the Inquisition and of judge in the local courts; he took part in the compilation of the municipal laws. He fathered another lawyer, Dr Melchiorre Vella J.U.D.169 161 Mifsud (n 21) 27 – 29.

162 AOM 100, f. 175v.

163 AOM 99, f. 107.

164 AOM 100, f. 121v.

165 AOM 100, f. 128.

166 Cassar (n 121) 115.

167 Fsadni (n 156) 31, 53.

168 Bonnici (n 76) 307.

169 Mifsud (n 21) 83 – 84.

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id-dritt Dr Paolo Vella J.U.D. In 1576 Dr Vella was appointed Assessor in the criminal proceedings against Fra Antonio Brancaleone (probably Bracalone) and others.170 The following year he also took part in the prosecution of Fra Alberto Arrighi who had wounded Judge Calli.171 In 1576 and 1577, Dr Vella was appointed Judge of the Corte Capitanale. Another member of the same family, Dr Giandomenico Vella J.U.D., occupied the same post in 1594.172 Dr Paolo is mentioned before in the records, but not as J.U.D. Dr Giuseppe Xara J.U.D. Found mentioned only once.173 Ciantar mentions another lawyer, Dr Orlando Xara J.U.D., active after 1530.174 Dr Franceso Xerri J.U.D. Found mentioned only once.175 He took a prominent role in a gay scandal that ended in the lap of the Inquisition. The Doctor of Laws Nicola Pietro Xuereb, when a student in Naples, had succumbed to a strong physical attraction towards another student Francesco de Buzietta, the couple living ‹like one soul in two bodies’ and everyone knew they committed the unmentionable crime – crimen nefandum.

The Inquisition in Malta took an interest in Xuereb – for his inquisitiveness about Lutheran and Calvinist literature. Xuereb was Dr Xerri’s first cousin, and the Inquisitor homed on Dr Xerri too, also under suspicion of sympathy for Lutheran heresies. In his pleadings to the Inquisition, Xerri capitalized on his honour - during the trial of a man charged with sodomy, Julio Xeibe had tried to corrupt him in favour of the accused. But, being a man of integrity, he had proceeded all the same with the torture of the gay suspect.176 Dr Gregorio Xerri J.U.D. was Judge and Assessor of the Corte Capitanale in 1512.177

170 AOM 94, f. 129v.

171 AOM 95, f. 37.

172 Ciantar (n 29) 492.

173 AOM 438, f. 254.

174 Ciantar (n 29) 495.

175 AOM 438, f. 257v.

176 Giovanni Bonello, Histories of Malta, Vol. 1 (Fondazzjoni Patrimonju Malti 2000) 88.

177 Ciantar (n 29) 497.

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History of the Legal Professions Dr Orlando Xerri J.U.D. was Judge and Assessor of the Corte Capitanale in 1581.178 Dr Nicola Pietro (Colapietro) Xuereb J.U.D. (mentioned in the gay scandal and the Inquisition investigation, see Dr Francesco Xerri, supra), became Judge of civil cases in 1558, and Judge of the Corte Capitanale in 1562. He left Malta permanently for Sicily shortly after the Great Siege. He married twice: Margherita, daughter of Ugolino Bonnici, and Leonora Lagunna, and had numerous children from both spouses.179

178 ibid.

179 Ciantar (n 29) 498 – 499.

219

220

Human Rights Law

221

Giovanni Bonello Was the European Convention on Human Rights Enforceable in Maltese Courts since 1967?

Giovanni Bonello was judge at the European Court of Human Rights for twelve years. Before that he had been a lawyer in private practice, specialising in human rights litigation, defending 170 human rights lawsuits before local and international courts.

He is the author or editor of 35 books on art, history and constitutional law, four of which won the Best Book of the Year award. Four full-feature books and a special edition of a law journal have been published about his legal and cultural achievements.

He was President of the Malta Historical Society, and is general editor of Fondazzjoni Patrimonju Malti publications, consultant to the Palace Regeneration Project, Chairman of the Strickland Foundation, of the Notarial Archives Foundation and of the Drug Offenders Rehabilitation Board. He was also Chairman of the university ethics board, a member of the main board of MEPA and chaired the National Committee for the Reform of the Administration of Justice. His interests include archival research, abstract photography and classical music.

223

id-dritt

Abstract

1. Malta signed the European Convention on Human Rights (ECHR) in 1966 (applicable 1967), at a time when the state was formally neither monist nor dualist. 2. The ECHR is a sui generis international treaty, not primarily meant to regulate the relations between the contracting states, but to grant, protect and reinstate those fundamental rights that have been violated. 3. Malta ratified the Convention in 1967, without any reservation that the obligations it had assumed in favour of victims of human rights violations, as also the rights of those victims, would come into force only when Parliament approved the ratification. 4. On the contrary, by ratifying Articles 1, 13 and 52 of the ECHR, Malta undertook that the human rights listed in the Convention would be in force and actionable with immediate effect. 5. When Malta later became partially dualist in 1983, the rights conferred on individuals by the ECHR had already been part of Maltese law, in force and actionable since 1967. 6.

The ‘dualist’ Act of 1983 indicates expressly that the Parliamentary endorsement established by the Act was meant to be prospective, and not intended to repeal rights already existing and actionable in the Maltese legal order. 7. Any other interpretation would render Malta’s ratification of the ECHR in 1967, almost entirely hollow and nugatory.

Thanks to Professor Kevin Aquilina, Dr Austin Bencini, Dr Tonio Borg and Chief Justice Emeritus Vincent A. DeGaetano, for their generous and enlightened contirbution to this debate. All helped, some disagreed.

224

Human Rights Law

T

his article debates a major and quite fundamental misunderstanding: when did the rights entrenched in the European Convention of Human Rights (the ECHR) become enforceable in Malta through the Maltese courts? I believe that, so far, we may have got the answer to this question all wrong. In fact, I now hold that the protection of those human rights listed in the ECHR was available, actionable and enforceable against Malta in the Maltese courts since the ratification of the Convention in 1967.

There are some milestones in the journey of the Convention which are very relevant to the subject of this article. 1950: the Convention is signed in Rome by several European states, including the United Kingdom. 1953: the UK expressly extends the applicability of the ECHR to Malta. 1964: Malta becomes an independent state. 1966: Malta signs the Convention, ratified in 1967. 1983: Malta enacts the Ratification of Treaties Act. 1987: Malta accepts the jurisdiction of the European Court of Human Rights and the right of individual petition by persons to sue Malta in the European Court of Human Rights (ECtHR). 1987: Malta enacts the European Convention Act which expressly makes Convention human rights actionable directly in the Maltese courts.

It has, so far, been held universally, but perhaps uncritically, that persons who allege that their Convention human rights had been violated by Malta, could only sue for the enforcement of those rights in the courts of Malta as from 19 August 1987, when Parliament enacted the European Convention Act, and not before.

I, too succumbed to this accepted truth and never had doubts about that.

Today, I have given that subject more thought and have changed my view. I now believe that the Maltese courts could have been asked to enforce the rights listed in the Convention as from its ratification by Malta in 1967.

There are basically two systems in international law on the enforceability of treaties as domestic law, and countries are free to adhere to one rule, or to the other. By one system, favoured by many continental countries (the ‘monist’ system), an international treaty becomes part of the domestic legal order the moment it is ratified by the executive. According to the other system (the ‘dualist’ system), an international treaty has to pass through two stages to become part of the domestic legal order: it has first to be ratified by the executive, and then be approved by Parliament. Only then does it 225

id-dritt become enforceable by the national courts, as part of the laws of the land.

This second system is the one favoured by the United Kingdom and some other countries. Then there is also a third hybrid system: a country can be dualist for some types of treaties, and monist for others.

In 1983, the Parliament of Malta passed the Ratification of Treaties Act, relating to new treaties or conventions signed by Malta which affected: 1.

Malta’s status in international law; 2. its independence or sovereignty; or 3. its relationship with a multinational entity. This Act formally directed that such treaties had henceforth first to be ratified by Parliament before they became part of the Maltese legal order. Therefrom, Malta formally adopted the UK ‘dualist’ system for those three categories of treaties specified in the Act. There is no doubt that, as from 1983, new international treaties or conventions of the three types listed in the Act, would only enter into force if, after signature, Parliament too endorsed them.

There is an important observation to be made here. It is not correct to state that after 1983, Malta officially became a dualist state. Malta became dualist only for the three categories of treaties listed in the Act. The necessary inference follows that Malta is still monist for all the treaties not referred to in the 1983 Act. These treaties automatically enter into force on ratification by Malta, not on approval of Parliament. So, for all intents and purposes, Malta is today one of the hybrid states – dualist for some treaties, monist for all the others.

The wording of the Ratification of Treaties Act, is expressly prospective – it applies to some treaties ratified by Malta after 1983. Is it also retrospective?

No. Article 3(1) makes it clear that the Act only applies to treaties: [T]o which Malta becomes a party after the coming into force of this Act. What about treaties and conventions already signed and ratified by Malta before 1983?

I have tried to establish if any authority (legislation, case law, consistent and authoritative administrative practice) exists as to whether, before 1983, Malta followed the monist or the dualist doctrine where international treaties were concerned. I understand there is none. No court of law before 1983 had 226

Human Rights Law taken it upon itself to clarify the issue. Not one single judgement asserted that Malta is monist or that it is dualist. The very fact that a law had to be passed in 1983 to establish formally that Malta would henceforth be partially dualist, shows that before that, the issue was not regulated by law.

There was, of course, the rather vague doctrine that when a lacuna exists in Maltese public law, the courts may apply English common law. This was first established in 1935 in Cassar Desain vs Forbes.1 But that was only a second bite at the cherry. Before that, lacunae in Maltese public law were filled by Continental/Italian law, like when, in the silence of Maltese public law, the Italian doctrine of jure imperii and jure gestionis was grafted unto Maltese public law in 1894, in the case of Busuttil vs La Primaudaye.2 Our courts went on relying on this Italian, not English, doctrine in many subsequent publiclaw judgments.

Maltese case law, whether English common law fills in Maltese public law lacunae, can therefore be unstable. But more relevant is the fact that this English-law fallback is not a mandatory precept. It is a discretionary power which the courts conferred upon themselves, and which they could either exercise, or not exercise. The Constitutional Court in 1970 expressly asserted the discretionary nature of this power: English public law can be invoked where our law has no provision on the matter.3 In fact, in practice, even after Cassar Desain vs Forbes, our courts sometimes did rely on English common law, but sometimes (up to this very day) they do not; e.g., in their definition of juridical interest in judicial review.4

1 Marquis James Cassar Desain vs James Louis Forbes C.B.E. nomine, H.M. Court of Appeal 7 January 1935, Kollez. XXIX.I.43.

2 Paolo Busuttil vs Clement La Primaudaye nomine et, H.M. Civil Court 15 February 1894, Kollez.

XIV. 301.

3 ‘Id-dritt pubbliku Ingliż jista’ jiġi nvokat fejn il-liġi tagħna ma tiddisponiex’, 591/1970 Onorevoli

Dom Mintoff vs Onorevoli Dottor Giorgo Borg Olivier noe, Constitutional Court 5 November 1970 (emphasis added).

4 Tonio Borg, Judicial Review of Administrative Action in Malta (Kite Publishing 2020) 73 – 79.

227

id-dritt This judicial discretion was never used by the courts to assert that in matters of international treaties and conventions, Malta must follow English dualist procedures – whether before 1983 or after. Even had some judgement ruled to this effect (which as far as I have been able to establish, it never did), I suggest that it would still have been extremely unsafe, and also a breach of the fundamental principle of the certainty of the law, to base the actionability or otherwise of an express treaty on the unregulated discretion of a judge.

But this is mere speculation, because no court in Malta ever used its discretion to apply English common law when it comes to the ratification of treaties or the enforceability of treaties. All we can do is to guess that if the question had been asked (it never was), the court might have ruled that the English dualist system applied to Malta. So, it is absolutely fair to say that, up to 1983, the matter was not in any way regulated by law, precedent or other authority.

If not regulated by law, I believe one has to look at the pre-1983 treaty itself for guidance. When a state is formally neither monist nor dualist (as I suggest Malta was pre-1983), one can only be guided by the letter and the spirit of the treaty or convention ratified by Malta before 1983. If the obligations assumed in ratifying the treaty clearly had to implemented with immediate effect in the ratifying state, then the only possible construction to be given to the ratification is a monist one. The treaty becomes domestic law the moment it is formally signed and ratified, otherwise it is, for all intents and purposes, a nothingness. It is to be presumed that all parties to a Convention ratified it in order to give effect to its provisions. Law has always to be interpreted in favour of sense, not in favour of non-sense, in favour of effectiveness, not in favour of voidness – ut magis valeat quam pereat.

It could be argued that the ratification of the Convention in 1967, notwithstanding its non-enforceability in Malta, did anyway have one effect that Malta could be sued by another signatory state in the ECtHR for breaches of human rights. That is not correct.

Before 1987, had Malta been sued by another country in an inter-state case against it, the suit would have had virtually no practical or coercive effect, as it would have stopped at the (now defunct) European Commission on Human Rights, the ECtHR’s filtering organ. The case against Malta would not have proceeded to the European Court of Strasbourg, since Malta had 228

Human Rights Law not ratified Article 46 by which a state accepts the jurisdiction of the Court (Malta only accepted this jurisdiction in April 1987). So, the theoretical threat of an inter-state case against Malta, was in practice, entirely hollow.

The effective human-rights protection of the threat of an inter-state case against Malta was virtually nil. In 70 years of existence of the Convention, the number of these inter-state cases has been absolutely negligible when compared to the hundreds of thousands of cases in which states have been sued by individuals in their domestic courts. In the 53 years since adhering to the Convention in 1967, this empty faculty has never once been made use of. Malta has never sued, nor been sued, by another state, to ensure the rule of human-rights law. So, all the ado of adhering to the Convention was, right, about … nothing.

Most international treaties only create rights and duties between states, so the question hardly arises whether they are enforceable in the domestic courts. But the European Convention of Human Rights is inherently different – entirely sui generis. It was not entered into to create rights and obligations between the contracting parties, but to establish common duties between them, and enforceable rights in favour of third-party individuals – the victims of violations of human rights. When it ratified the Convention in 1967, Malta solemnly and formally granted to every person within its jurisdiction the right to have his or her Convention human rights judicially protected by the Maltese courts. That ratification only makes any sense if seen in this light - of an effective right of action by the victims of violations of human rights.

Any other reading would have made Malta’s adherence to the ECHR almost entirely hollow.

For international instruments ratified before 1983, we have to go back to the moment when that treaty or convention was signed, and examine what was undertaken by Malta when it ratified the Convention in 1967. Malta obliged itself to implement the Convention immediately and to bring the Convention’s human rights provisions into operation immediately.

These international commitments assumed by Malta gave rise to legal obligations on Malta, and to enforceable rights in favour of third parties: those who claim their Convention human rights have been violated by Malta.

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id-dritt This is emphatically borne out by the clear doctrine of the Grand Chamber of the ECtHR which, as early as 1978, ruled that: [T]he Irish Government’s argument prompts the Court to clarify the nature of the engagements placed under its [the Court’s] supervision. Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations, which, in the words of the Preamble, benefit from a “collective enforcement”. […] By substituting the words “shall secure” for the words “undertake to secure” on the text of Article 1, the drafters of the Convention also intended to make it clear that the rights and freedoms set out in Section 1, would be directly secured to anyone within the jurisdiction of the Contracting States. […] The Convention does not merely oblige the higher authorities of the Contracting States to respect for their own part the rights and freedoms it embodies; as is shown by Article 14 and the English text of Article 1 (“shall secure”), the Convention also has the consequence that, in order to secure the enjoyment of those rights and freedoms, those authorities must prevent or remedy a breach at subordinate levels.5 This, of course, does not mean that the Convention makes it compulsory to incorporate its provisions in domestic law. It means that ALL the Convention rights and liberties ratified by the contracting state must, after ratification, be enforceable rights within the jurisdiction of each contracting state. What about those fundamental human rights which Malta ratified in 1967 and which are not, however, enshrined in the Constitution, e.g., the right to private and family life, the right to non-discrimination on any ground in the enjoyment of fundamental rights, the right to education, the right to free elections, the right to marry and found a family, the prohibition of imprisonment for debt, the prohibition of collective expulsion of aliens? These were fundamental human rights when Malta ratified the Convention, but did not exist under the domestic Constitution. Did Malta in 1967 solemnly undertake to secure to everyone within its jurisdiction the enjoyment of these rights? Or was it just being facetious?

5 Ireland v The United Kingdom App no 5310/71 (ECtHR Grand Chamber, 18 January 1978) para.

239 (emphasis added).

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Human Rights Law Let us look at the very clear wording of the Convention itself (and at what Malta undertook when it ratified the ECHR), particularly Articles 1, 13 and 52, read separately and cumulatively. The preamble and Article 1 of the ECHR state expressly: The Governments signatories hereto have agreed as follows: Article 1. The parties shall secure to everyone within their jurisdiction the rights and freedoms defined in this Convention.

When in 1967 Malta ratified its obligation to secure to everyone within its jurisdiction the enjoyment of the human rights listed in the Convention, it did not, as it was entitled to do, make any reservations as to when its obligations would commence (e.g. when Parliament approved the ratification, or in, say, five years’ time). It obliged itself to secure those human rights, which means: with immediate effect. Can Article 1 be any clearer than that?

Again, and equally importantly, Article 1 of the ECHR has to be read in conjunction with Article 13 which imposes on the states that ratify it, the obligation to have in place effective remedies against violations, available before their own national authorities. Can Article 13 be any clearer than that?

Moreover, by ratifying Article 52 of the ECHR in 1967, Malta bound itself to furnish to the Secretary General of the Council of Europe, if so required: [A]n explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention.

Malta undertook formally in 1967 that all the Convention rights and liberties it had ratified would be effectively implemented.

Malta formally assumed these obligations in 1967, and from that date it placed itself under the legally binding commitment to foster and apply all the Convention human rights - but it also placed itself under a legal obligation to have in place authorities, particularly courts, to secure those rights and to provide redress when those rights were breached – with immediate effect. To me it is evident that, once Malta assumed these obligations and commitments in 1967, these have become enforceable rights since 1967.

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id-dritt The ratification of 1967 made the international law of the Convention part of the law of Malta.

A further confirmation of this is to be found in the option given by the ECHR to signatory states to accept or not to accept the jurisdiction of the European Court, and to accept or not to accept the right of individual petition, viz, the right to bring actions for human rights violations against Malta in the Strasbourg Court. All parties were free to establish if and when these two obligations were to be assumed. Malta did not ratify either of these two obligations until 1987 (in fact, it was the very last state in democratic Europe to do so).

This means that the Convention human rights could not be enforced against Malta in the European Court of Human Rights, between 1967 and 1987. And they were not enforceable in Malta either?! So these ‘rights’ were enforceable NOWHERE. The whole grand edifice of the Convention was a hollow and deceitful myth ‘full of sound and fury, signifying nothing’.

For the reasons given above, I believe, that Convention human rights were enforceable in the Maltese courts from 1967 onwards and in the ECtHR from 1987.This, of course does not mean that pre-1987, Convention rights were actionable against Malta in the Strasbourg Court – they were not, as Malta had failed to accept the right of individual petition. But they were actionable in the Malta courts. Any other interpretation makes a mockery of the European Convention – according to the alternative, the victim was solemnly given rights by the Convention, but no forum anywhere to enforce them in.

The drafting of the European Convention Act, Act XIV of 1987, (Chapter 319, especially Article 7) contradicts this. But, I now believe that was radically wrong. By the passage of time, the question is now mostly academic – but Convention human rights were directly applicable in Malta by the courts as from 1967.

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Tonio Borg The Exhaustion Rule, exhausted

Tonio Borg LL.D., Ph.D., K.O.M. is a former European Commissioner and former Deputy Prime Minister and Minister of Foreign Affairs of Malta. He is a resident senior lecturer in public law at the University of Malta.ż 233

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1. Introduction

T

he Constitution of Malta in Article 46 provides that in a human rights action, the Court may, if it considers it desirable so to do, decline to exercise its jurisdiction if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.1 This provision is contained in a proviso to Article 46(2). The latter subarticle provides that a Court may ‘make such orders, issue such writs and give such directions’ as it feels appropriate to remedy a human rights violation.

The positioning of this provision next to the remedial powers section, as shall be argued later on, speaks volumes about the true nature of this ‘exhaustion rule’.

As shall be seen, even the European Court of Human Rights does not allow applications, if the domestic national remedies have not been exhausted.

A more liberal interpretation has been given by that Court, even when one considers that the enforcement mechanism by an international European Court necessarily presumes a stricter application of the rule than a domestic court. In Malta, the exact contrary has occurred.

This provision is necessary; but it cannot be abused of. It is important that it is there, but it can amount to a convenient pretext for a court to wash its hands of a thorny problem on the pretext that applicant is knocking on the wrong door.

1 The

raison d’être of this provision has been explained in several judgments. See Salvatore Seychell vs Angelo Grech pro et noe (CC) (10 April 1967) (6/67) ‘Article 46 and the articles of the Constitution regarding human rights were not intended so that under the pretext of an actual or threatened infringement of a fundamental human right, one ignores and evades the normal procedural means and remedies and instead seeks redress before the Court which has a special jurisdiction entrusted to it by the Constitution. See also Raymond Vella vs Commissioner of Land (CC) (24 May 2004) where the Constitutional Court observed that ‘the legislature left it within the prudent discretion of the First Hall of the Civil Court so that there would be no unnecessary actions constitutional or under Chapter 319; but on the other hand it is ensured that cases which deserve to be examined well under the scrutiny of the Constitution and the Convention - even if these could have been examined under some other law) are, indeed, so examined; and this is being said in the light of the remedy or remedies which are or were available in favour of the person who would be alleging a breach of its fundamental rights’.

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Human Rights Law A cursory examination of Maltese constitutional jurisprudence since 1964 is littered with references to this provision, and in my view on most occasions, these constitute a misuse of this power and discretion.

An even superficial examination of this provision shows that the Court, and only the Court of constitutional jurisdiction, enjoys a double discretion; it must first be satisfied that there is an alternative, effective, practical remedy under any other law, and then, if it considers it desirable so to do, decline to exercise its jurisdiction; which means that even if there is an alternative remedy, the Court may still decide to hear the case. This discretion is rarely disturbed by a court of revision unless there are manifestly unjust consequences.

My point in referring to the exact position in Article 46 of this provision is that such position seems to suggest, that the exercise of examining whether an alternative remedy was available, should only be conducted after an exercise on the merits has been completed; the Court, having found that there is a violation of the Constitution, may make any order to remedy the situation; however, if there is an alternative remedy, it may decline to decide the case. Instead, what has happened in practice is that respondent Government usually, and almost invariably, raises a preliminary plea that other remedies were available and insists on a preliminary judgment on the point, prolonging the entire process. The Courts have sometimes acceded to such fragmentation of human rights litigation.2 Whatever the position, the matter remains within the total discretion of the Court; the fact that a constitutional action may proceed, in spite of the fact that an alternative remedy is available, is borne out by Article 46 itself, which in sub-article (1) states that a person may ‘without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress’ in cases of alleged human rights breaches.

2 See Philip Cauchi et vs Commissioner of Land et (FH) 17 May 2016 (15/16) where in spite of the fact that the European Court of Human Rights had ruled in Vassallo v Malta that there was no need for the owner of expropriated property to file a civil action to force Government to perform its legal duty and issue a notice to treat before filing a human rights action, the same plea was once again raised and the Court decided to deliver a separate and preliminary judgment on a point firmly settled by the European Court.

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id-dritt Besides, that same article states that the Civil Court First Hall ‘shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1) of this section’, namely cases relating to allegations of human rights infringements (emphasis by author). Exercising jurisdiction is the rule not the exception.

The next obvious question is: then is the proviso superfluous? No, it is not.

Not every breach of the law by a state organ necessarily finds a solution and remedy in a human rights action. If a civil law action can adequately offer a remedy in case of negligence by a state organ in causing death, then such remedy should be availed of.

However, the way this proviso has been raised as a plea by respondent Government in practically all human rights cases, indicates an abuse of this provision, and sometimes a wrong application by the Court of this power to decline.

Examples of a distorted interpretation of this proviso are legion. The number of attempts at pleading such proviso are even more numerous. First of all, this proviso should never really constitute a plea at all by respondent Government. It is a discretion to be exercised by a Court. Invariably, however, the respondent Government under different administrations through the Attorney General, always raises the plea that not all available remedies have been availed of.

Take, for example, the failure of government, in expropriation cases, to abide by the law, namely the Land Acquisition (Public Purpose) Ordinance Chapter 88.3 The law states that following the issuing at that time of a presidential order regarding such expropriation, the Commissioner for Land then issues a notice to treat proposing a sum of money as compensation.

The dispossessed owner can accept such sum, or contest the amount and make a counteroffer. The case then proceeds to the Land Arbitration Board, but surprisingly, as the law then stood, it was the Government - one of the parties to the litigation - which decided if and when to refer the case to the Board.

3 Today the provisions of that Ordinance in so far as Government is concerned are performed by the Lands Authority in virtue of Article 7(2) of the Lands Authority Act, Chapter 563 of the Laws of Malta.

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Human Rights Law Since no time limits were laid down in the law for government to act, the stratagem was therefore developed over the years to postpone payment by (a) not issuing a notice to treat or (b) if the notice is issued, the Commissioner does not refer the case to the Board for decision! In this way government was postponing almost indefinitely the payment of compensation, banking on the fact that most owners would not care to institute litigation; and in any case, prior to 1987, as shall be seen, they had no redress.

In virtue of the abovementioned law, Government could take possession of the expropriated property which at law remained the property of the dispossessed owner; but Government had full rights over such possessions; it could build council houses, open or widen roads, and then in the fullness of time, perhaps someday, conclude the contract of purchase and pay the compensation.

While dispossessed owners spent decades without receiving compensation, they could not institute constitutional action since the Constitution in Article 47(9) protected pre-1962 laws from the right to property provision (Article 37). It was only with the incorporation of the European Convention on Human Rights through Act No. XIV of 1987, including therefore the right to property under Article 1 Protocol 1, that applicants started contesting expropriation decisions, either on the requirement of public interest or the amount of compensation.

When such cases started piling up, most of them owing to lack of payment of compensation because of the aforementioned stratagems by Government, the plea started being raised by respondent government before the local courts and the European Court of Human Rights in Strasbourg, that applicants should have instituted a civil law action for Government to do its duty.4 A Government which has a duty to issue a notice to treat and refer the case to the Board was availing itself of its deliberate inertia to avoid a finding of violation under human rights law! As stated by the Constitutional Court:5

4 See Philip Cauchi et vs Commissioner of Lands (FH) (17 May 2016); ‘Respondent Commissioner of Land submitted that applicant had at his disposal the remedy to proceed with a judicial action in terms of Article 1078 of the Civil Code which grants a right of action to establish a time period by the Court within which an obligation has to be executed’.

5 Peter Azzopardi vs Commissioner of Land (CC) (11 November 2011).

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id-dritt [I]t would not be just that a public authority be rewarded for its inefficiency and hibernation by the exercise by this Court of its power to decline from exercising its constitutional jurisdiction; indeed, it becomes even more impellent for this Court to assert its jurisdiction so that justice be made with the person deprived of his property for such a long period of time without any compensation being given.

Previously in Tonna et vs Commissioner of Land et6 the late Mr Justice Gino Camilleri stated as follows: The words used by the law certainly do not make it mandatory for the Court to decline to exercise the powers given to it by the said Article 46(2) whenever it results that there is or was the possibility of ordinary proceedings available to applicant. Therefore, even if in effect it results that there were available to applicant ordinary remedies which were adequate and effective, the Court may nonetheless decide to examine and decide the complaints of applicant.

Therefore, according to these provisions for the Court to decline to hear the case, it should result in the first place that there were or there still are ordinary effective procedures available to applicant by which redress can be sought for the complaints in question, and secondly it should be declared that Court feels that it is desirable to abstain from taking cognizance of the application.

In the view of the court, all this means that only in exceptional cases should the Court decline to exercise its powers granted by the said provision of law. In such cases the Court would have before its complaints of a particular importance, namely that there was breach of some fundamental human right as protected by Article 33 to 45 of the Constitution or the European Convention. All this should make the Court cautious in its decision to decline to hear a constitutional application. In any case, this proviso should certainly not be considered as a means by which a person be prevented from putting forward a constitutional action, particularly when it appears that the said person would be promoting an action 6 Tonna et vs Commissioner of Land et (FH) (20 October 2008) (32/06).

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Human Rights Law alleging a serious breach of his fundamental rights.

In the Tonna case, the owners, probably out of exasperation, after forty years waiting for Government to start the process of payment of compensation, had filed an application before the Land Arbitration Board, when this could be done, at that time, only following the issuing of a notice to treat (which had not taken place), and then only at the instance of the Commissioner of Land. Government had raised the plea of non-exhaustion in the constitutional case because applicants had failed to appeal from the decision of the Board declaring that it was incompetent to hear the case. The Court ruled that the Board was right in its decision so there was no need for applicants to pursue a futile course of action by appealing.7 When Government raised the plea that applicants should have instituted a civil law action for the Court to fix a term within which Government would have to abide by its legal duty, the Court disposed of such plea by stating that the delay in payment of compensation was grievous enough that it merited an examination on the merits.8 A fatal blow to this plea in expropriation matters was given by the European Court in Vassallo v Malta9 where it put an end to this legal nonsense and settled the matter once and for all, by stating: Owners could not be expected to incur the expense and burden of instituting proceedings to ensure the authorities fulfilment of their legal obligations. Moreover, the mere fact that the Government would have been forced by means of a court decision to initiate proceedings, would not guarantee that these proceedings would thereafter be pursued with due diligence.

7 ‘It is also true, however, that an appeal from the said decision would have been useless. Since the Board in its said decision was correct. Besides, at that time, only the Commissioner of Land could refer a case to the said Board to determine the compensation payable and this after a notice to treat would have been issued and the person whose property was subjected to the expropriation would have refused the compensation offered to him by the said Commissioner of Land’.

8 ‘The breaches in question may be easily defined as serious and merit being dealt with in depth’.

9 Vassallo v Malta (ECtHR) (11 October 2011).

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id-dritt Still the plea was again raised in another case, in spite of Vassallo. This time it was given a blow from which hopefully it will never recover.10 An unsuccessful but bizarre attempt at raising this proviso as a plea occurred in the Tonio Vella case. In that case a young man with special needs was unlawfully arrested and subjected to ill-treatment while in police detention. The Police had investigated the matter and concluded that Vella’s complaints were only an attempt at discrediting the image of the Police Corps. When Vella filed a constitutional action, the first plea to be raised was that applicant had at his disposal a criminal law action against the police officers concerned which he did not avail himself of.

The Constitutional Court11 rightly dismissed this plea, even on the basis of the fact that respondents seem to have bizarrely preferred criminal action against them rather than a constitutional one!

The plea on which this grievance is based is indeed curious for it implies that respondent Bonello would have preferred to be subjected to criminal proceedings rather than the present ones; namely, he would have preferred disciplinary or even criminal proceedings to ones relating to compensation namely the payment of damages. This is being stated because on its own this fact illustrates that the remedies envisaged by the plea to applicant’s demands are those relating to punitive justice, while this case is seeking remedies relating to commutative justice. Apart from this however, as regards an infringement as the one relating to Article 351 of Chapter 9 or the one relating to inhuman and degrading treatment; which clear remedies are available if not the present action?

Finally, when the subject matter of the litigation is of a complex nature and contains questions to which remedy under any other law is available and others for which there is only a constitutional remedy, the latter should prevail.

10 Philip Cauchi et vs Commissioner of Land (FH) (17 May 2016) (Hon. Mme Justice L. Schembri Orland) confirmed on appeal (CC) (5 October 2018).

11 Tonio Vella vs Commissioner of Police et (CC) (5 April 1991 (Vol. LXXV.II. 163).

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Human Rights Law A similar attempt was made in the Philip Spiteri case.12 Applicant, a Dockyard worker, had refused to be a member of the predominant recognized trade union at his place of work, the General Workers’ Union. Consequently, management refused to allow applicant to work overtime hours, denying him of an important source of income for any dockyard worker. Applicant filed a human rights action stating that his constitutional freedom not to associate was being infringed. Respondent public corporation pleaded that applicant should have filed its case before the Employment Commission established by the Constitution composed of three members; two appointed on the advice of the Prime Minister and one on that of the Leader of the Opposition which enjoyed jurisdiction over political discrimination at the place of work.

The Court in rejecting this plea, added to the ‘complex nature’ argument in Tonio Vella by stating that it should not exercise its powers under the proviso when the issue is either complex or ‘hybrid’. In this case, the real issue was the fact that a person was being hindered in the exercise of his freedom not to associate. Political discrimination was perhaps the motive behind such measure and applicant’s decision not to join the GWU, which at that time was politically and statutorily fused with the Malta Labour Party. Besides, the issue was one relating to freedom to associate or not to associate, which placed the matter on a clearly constitutional human rights level.

It is not therefore surprising that the application of this provision has come under scathing and biting criticism. Giovanni Bonello13 in ‘Misunderstanding the Constitution’ argues that: [O]nly exceptionally may a court of constitutional jurisdiction decline to exercise its constitutional powers of scrutiny. Instead, what should have been the ultimate exception has now become the first rule, what should have been the rule has now become the discarded nuisance not allowed to pollute the rarefied tables of the constitutional judges. The violator wins impunity and the victims win despair.14

12 Philip Spiteri vs Sammy Meilaq nomine (CC) (8 March 1995) (Vol. LXXIX.I.33).

13 Judge Emeritus of the European Court of Human Rights (1998-2010).

14 Misunderstanding the Constitution (BDL 2018) 68.

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id-dritt In Vella vs Bannister15 the Constitutional Court laid down these rules for the application of the proviso: a. As a general principle, when it is clear that there are available ordinary remedies enabling an applicant to obtain redress for the damage complained of, such ordinary remedies must be undertaken and constitutional proceedings should be instituted only after such ordinary remedies are exhausted or if they were not available. b. Unless there are grave and serious reasons related to unlawfulness, justice or manifest error, the Constitutional Court will not disturb the exercise of discretion made by the first-instance court, as conferred on it by Article 46 (2) of the Constitution. c. Each case has its own particular circumstances. d. The fact that an applicant has failed to pursue an available remedy does not mean that the court [of constitutional jurisdiction] must decline to exercise its jurisdiction if that possible remedy could redress the applicant’s complaint only in part. e. Where an applicant has failed to exhaust an ordinary remedy, if the interference of another person has contributed to this non exhaustion, then it would not be desirable for the court [with constitutional jurisdiction] to refrain from hearing the case. f. When the first-instance court exercises its discretion and refuses to take cognisance of a case without having examined the relevant subject matter in respect of which that discretion had to be exercised, the court of second instance should put aside that discretion.

Besides, the alternative remedy had to be practicable, accessible, effective adequate and complete.16 In Judge Carmelo sive Lino Farrugia 15 Dr Mario Vella vs Joseph Bannister ne et (CC) (7 March 1994). See as well Mourad Mabrouk vs the Minister for Justice and Home Affairs and the Principal Immigration Officer, (FH) (4 February 2009).

16 John Grech vs Prime Minister (CC) (31 January 2014).

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Human Rights Law Sacco vs The Honourable Prime Minister et17 the Court also held that: From an accurate examination of the proviso [to Article 46 (2) of the Constitution], it does not result that the legislator intended to establish as an absolute principle of Maltese constitutional law that before an individual seeks redress before the constitutional jurisdictions, he or she must always, peremptorily, exhaust all the available ordinary remedies, including those which are not reasonably expected to be effective and accessible.

The Constitutional Court again listed certain norms regarding the exercise of this proviso in Ryan Briffa vs Attorney General18 et namely; 1.

The existence of another remedy should result as a state of actual and objective fact; 2. the remedy has to be accessible, adequate, effective proper to redress the alleged breach; 3. for the remedy to be considered effective there is no need to prove that the remedy guarantees success in outcome for applicant, but it is enough to prove that it may pursued in a practical, effective and efficient way.

4. exercise of such discretion cannot be capricious or taken lightly.19 5.

The discretion which the Court enjoys in this regard had to be applied in a correct way and in the best interests of the administration of justice; so that on the one hand, the courts of constitutional jurisdiction are not faced with litigation which should or could have been instituted before other competent courts, or cases where the effective remedies were available, and on the other hand, so that no person be deprived of a remedy to which he is entitled under the Constitution or the 17 Judge Carmelo sive Lino Farrugia Sacco vs The Honourable Prime Minister et (FH) (5 June 2014).

18 Ryan Briffa vs Attorney General (CC) (14 March 2014).

19 Residual Ltd. vs Commissioner of Land (FH) (19 October 2011).

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id-dritt European Convention.

A conflict between the interpretation of exhaustion of other remedies under the Maltese Constitution and the European Convention came to the fore in the Dockyard workers case.20 A number of employees at the Malta Drydocks had for years worked at the yards using asbestos. They eventually suffered from several respiratory diseases, some of them even passing away.

The Drydocks at that time was managed by a State-owned corporation.

These workers and/or their heirs alleged that the management knew or ought to have known about the dangers of such material and still did nothing to guarantee a safe place of work. They filed a constitutional human rights action alleging a breach of the right to life and protection from inhuman or degrading treatment, which includes a positive obligation of the State to protect the lives and health of its citizens and employees. The point arose: should the applicants have sought redress from the civil courts for damages under tort? The thorny point was that some had done so and obtained material though not non-pecuniary damages.

When the applicants lost their case before the Maltese Constitutional Court owing to non-exhaustion of ordinary remedies, they referred their case to the European Court of Human Rights. This Court established that under Maltese civil law of tort, non-pecuniary damages were anathema, and no compensation for pain and suffering was available.21 The Strasbourg Court ruled that in cases of alleged violations under the right to life (Article 2) and the protection from inhuman and degrading punishment or treatment (Article 3), the victim was entitled to non-pecuniary damages;22 consequently, the 20 Brincat and Others v Malta (European Court of Human Rights) (ECtHR) (24 July 2014).

21 Only recently though, Act No. XXXIII of 2018 an action of non-pecuniary damages (maximum 10,000 euros) was allowed under Article 1045 of the Civil Code to be paid but only in civil cases arising out of voluntary crimes against the person or dignity of persons e.g. rape, defilement of minors etc. and crimes against the person punishable with at least three years’ imprisonment.

22See para 59 of judgment: ‘According to the Court’s case-law, in the event of a breach of Articles 2 and 3, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies (see Z and Others v the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V; Keenan v the United Kingdom, no. 27229/95, § 130, ECHR 2001-III; Paul and Audrey Edwards v the United Kingdom, no. 46477/99, §§ 97-98, ECHR 2002-II and Ciorap v Moldova (no. 2), no. 7481/06, §§ 24-25, 20 July 2010). The principle applies also where the violation arises from the alleged failure by the authorities to protect persons from the acts of others (see Z and Others, cited above, § 109; and Kontrová v Slovakia, no. 7510/04, §§ 63-65, 31 May 2007)’.

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Human Rights Law applicants had no domestic Maltese remedy to exhaust since such damages were not envisaged in Maltese law.

Commenting in general on the exhaustion rule the European Court remarked that: The Court emphasises that the application of the rule must, however, make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule on exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot v France, 19 March 1991, § 34, Series A no.

200). It has further recognised that the rule on exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed, it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v Belgium, 6 November 1980, § 35, Series A no. 40).

Omissis The Court notes that an action in tort which is perfectly capable of awarding material/pecuniary damage does not in general provide for an award of non-pecuniary damage (‘moral damage’ as understood in the Maltese context). While it is true that the Government submitted two recent examples of such damages being awarded, they were unable to identify a legal provision for awards of such non-pecuniary damage. Moreover, against a background of decades during which the domestic courts have consistently interpreted Article 1045 of the Civil Code (see paragraph 22 above) as excluding non-pecuniary damages.

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2. The Accused in Prison Uniform Case One of the earliest judgments relating to the exhaustion principle related to an unfortunate incident just before the start of a criminal trial by jury, where a prisoner already serving time was brought to the court building wearing his prison attire and was seen by potential jurors in the court corridor. In that case, the accused did not arise the issue before the Criminal Court, nor did he include such incident as a grievance in his appeal application after he was found guilty. Only after his guilty verdict was confirmed by the Court of Criminal Appeals, did he file the constitutional action.

The Court of First Instance, presided over by Mr Justice M. Caruana Curran, decided that had it not been for these procedural shortcomings on the part of the accused, it would have certainly provided for a remedy including one of ordering a re-trial, even though such remedy was not available except as a result of a successful appeal application to the Criminal Court of Criminal Appeal. The wide remedial powers under Article 46 permitted a court of constitutional jurisdiction to ‘create’ a remedy to award redress in a human rights violation.23

3. The proviso and Article 469A Chapter 12.

This issue is not without difficulties. The administrative law action and the constitutional one are usually directed against the same respondent – a public authority. They both challenge procedural or substantial unfairness. A remedy under Article 469A may lead to the annulment of an administrative act. There are however some notable differences;

23 Vincent Spiteri vs Prime Minister (FH) (30 June 1977); ‘Where it not for the two circumstances and reasons which will be mentioned (viz raising the issue at the start of trial and on appeal), and which militate against applicant, the Court would certainly not have acquitted completely applicant, but would have ordered a new trial for the power of redress granted to the Court in virtue of the wide provision of Article 46 (2) of the Constitution appears to authorise a similar directive and as stated by the Privy Council in the case Borg Olivier vs Buttigieg (the newspapers in State hospitals case) there should be no breaches of with human rights, however minor’.

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Human Rights Law (a) respondents in Article 469A actions are public authorities which according to the same article, include only ministries, government departments and state-owned corporations. Commercial companies such as Air Malta in which government has a controlling interest seem to fall outside the pale of an Article 469A. (b) More importantly while a judicial review action under Article 469A leads ‘only’ to the annulment of the administrative act, and a reversion to the drawing board for new proceedings or decision in the light of the judgment declaring an act ultra vires, there is no limit or restriction as to what the Court of constitutional jurisdiction may order in a human rights action. (c) There is also a forfeiture period of six months applicable from when plaintiff should or could have known that a decision was taken in his regard to file a 469A action; there is no such period whether of prescription or forfeiture in human rights cases. (d) Any kind of damages material or non-pecuniary may be awarded in human rights litigation; in the case of Article 469A actions, only traditional damages under the law of tort may be awarded and the only if one proves that the administrative act was taken in bad faith or was unreasonable. (e) Finally, both actions are one of last resort; the difference is that while under Article 46 a court of constitutional jurisdiction enjoys a discretion whether to decline to exercise its powers, in cases under Article 469A the mere fact that another mode of contestation exists under any other law before a court or tribunal precludes a court from applying judicial review; In numerous cases, the plea that the remedy under Article 469A should have been utilised has been raised.24 More recently, however, the argument has been raised that such a remedy under Article 469A only leads to the annulment of the administrative act, such remedy is not complete compared 24 See Louis Apap Bologna vs Calcedonio Ciantar et (FH) (14 July 2011) (Hon Mr Justice J Zammit McKeon).

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id-dritt with the constitutional remedy which has no such limitation. In Ivan Vella v Attorney General,25 the court remarked that: An action for judicial review gives power to the court in its civil jurisdiction to declare such act as null, invalid and without effect, but does not empower it to order how such administrative act had to be performed or direct the public authority as to what it should do to grant a remedy.

In Joseph Caruana v Prime Minister26 the Constitutional Court ruled that when court feels that the ordinary alternative remedy which is available is that of judicial review of administrative action, one must be extremely careful before accepting such an action as an alternative remedy to one under the Constitution or the Convention; the reason being that remedies under Article 469A are rather limited.27 In a string of other cases however, Article 469A remedies were deemed to be adequate and sufficient. In one case28 relating to competing claims on a plot of land between applicants and Qormi Local Council, and the issuing of a development permit over such land to the Council, the Constitutional Court ruled that: [O]n the merits of the case the Court observes that in this case, through it is true that applicants are requesting the payment of non-pecuniary damages for the breach they suffered, before instituting these constitutional proceedings, they should have sought recourse to the ordinary remedy envisaged in Article 469A by requesting a declaration of nullity of the decision of the Board of the Authority dated 26 January 2012 regarding the application, in so far as it was based on an illegality alleged by applicant consisting of a false declaration made by the Malta Environmental and Planning Authority (MEPA) that there was an existing road in 25 Ivan Vella vs Attorney General (FH) (23 June 2005) (39/04) (Hon. Mr Justice JR Micallef).

26 Joseph Caruana vs Prime Minister (CC) (31 October 2007).

27 See as well: Malta Playing Filed Association vs Commissioner of Land et (FH) (15 July 2014) (Hon. Mr Justice J. Zammit McKeon): ‘In an action for judicial review the court cannot substitute its discretion for that of the authority responsible for the administrative act. It is only in this forum that a complete and effective remedy such as the restitutio in integrum of the victim of a breach of a fundamental right may be granted if a breach is found to have occurred’.

28 Paul Magri et vs Prime Minister et (CC) (30 October 2015) (11/12).

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Human Rights Law the right to passage.

Arguing that non-pecuniary damages are not available under Article 469A actions, or that constitutional actions are swifter to conclude29, are not valid reasons to ignore an alternative remedy under Article 469A, though in constitutional cases relating to the right to life and/or protection from inhuman or degrading punishment or treatment, the inexistence of nonpecuniary damages under our civil law, as has been seen, entitled one to refer the case directly to a court of constitutional jurisdiction.

However, in spite of the pronouncement by the Constitutional Court that the fact that the alternative remedies may take undue time to be decided, is not an excuse to avoid such remedies, the European Court particularly in expropriation cases has begged to differ.30 A rather confusing judgment was delivered by a court of constitutional jurisdiction in one case31 where the Court refused to decline its power of constitutional review since according to Article 469A, where a mode of contestation other than 469A existed, the courts did not enjoy jurisdiction to examine a judicial review case under that article. This amounts to a veritable perpetual renvoi. The Court of constitutional jurisdiction may decline to exercise it powers because there lies a remedy under Article 469A as has been stated by our courts on several occasions;32 and the ordinary courts cannot exercise their jurisdiction because there is another mode of contestation, namely constitutional review under Article 46 of the Constitution!

29 William Vella pro et nomine vs Commissioner of Land (CC) (13 May 2013).

30 In Vassallo v Malta (ECtHR) (11 October 2011): ‘In view of the fact that the domestic proceedings relating to the payment of compensation have not come to an end nearly forty years after the taking of the property, the Court considers that it would be unreasonable to wait for the outcome of those proceedings (see Serrilli v Italy (just satisfaction), no. 77822/01, § 17, 17 July 2008; Mason and Others v Italy (just satisfaction), no. 43663/98, § 31, 24 July 2007; and Frendo Randon and Others v Malta, no. 2226/10, § 77, 22 November 2011). The Court considers that by awarding amounts for damage at this stage there is no risk that the applicant will be compensated twice, as the national jurisdictions would inevitably take note of this award when deciding the case (see Serghides and Christoforou v Cyprus (just satisfaction), no. 44730/98, § 29, 12 June 2003)’.

31 Federation of Estate Agents vs Director General Competition (FH) (21 April 2015) (87/13).

32Raymond Farrugia vs Commissioner of Police (CC) (12 November 2001) (5/00); Maria Debono vs Commissioner of Police (FH) (29 May 2002) (584/97) (17647/04).

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id-dritt When it comes to assessing whether a fair balance has been maintained in property cases between the rights of the individual and those of the community, and whether applicant was carrying an excessive burden in breach of the proportionality principle, the Courts have stated that such assessment could not be made by the Rent Regulation Board (RRB) but only by a court of constitutional jurisdiction. Consequently, the RRB remedy was not a remedy at all. Quoting from the case of Edwards v Malta33 the Court ruled that: [T]he court would emphasize that the application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting parties have agreed to set up.

Accordingly, it has recognized that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognized that this rule is neither absolute nor capable of being applied automatically.

It also quoted from Ghigo v Malta34 where it was stated that: [I]t is true that the Government reproached the applicant for his failure to institute proceedings before the Rent Regulation Board to fix a fair rent for the premises. However, it has not been shown by any concrete examples from domestic law and practice that this remedy would have been an effective one.

To recapitulate one can lay down certain updated norms for a restatement of the provision contained in Article 46(2), in addition to those laid down in the Vella v Bannister case namely that: (i) the rule is that the Court exercises its power of constitutional review whenever an allegation is made of a breach of a fundamental human right;

33 Edwards v Malta (ECtHR) (24 October 2006).

34 Ghigo v Malta (ECtHR) (26 September 2006) (31122/05).

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Human Rights Law (ii) Only in exceptional cases where it is evident that applicant sought a short cut, or else negligently lost his right under ordinary law e.g. through prescription, should the provision be exercised; and even then, everything would depend on the circumstances of the case; (iii) in cases of breach of right to life and/or protection from inhuman or degrading punishment or treatment the fact that Maltese civil law does not allow non-pecuniary damages justifying a direct reference to the courts of constitutional jurisdiction; (iv) when a reference of a human rights issue is made from a court other than a court of constitutional jurisdiction under Article 46(3), the plea of non-exhaustion cannot be raised before such court to whom the issue is referred;35 (v) where there is evidently an alternative adequate remedy, a court not being one of constitutional jurisdiction may refuse to refer the case to such courts declaring the raising of the issue as ‘merely frivolous and/or vexatious’.36 (vi) where the matter before the court is complex or hybrid, the constitutional remedy prevails.37 (vii) When the court of first instance stops hearing the case without examining the necessary issue on which such discretion has to be exercised, the court of second instance should put aside the exercise of such discretion.38

35 Police vs Frank Cachia (FH) (16 February 2011) (10/09) and Police vs C. Ellul Sullivan (CC) (19 April 2012) (29/10).

36 Police vs Benigno Saliba (CCX) (10 April 1991(Kollezz. Vol. LXXVI.I. 168).

37 Tonio Vella vs Commissioner of Police et (CC) (April 1989) Vol. LXXV.I. 105; Philip Spiteri vs Sammy Meilaq noe (CC) (8 March 1995) (Vol. LXXIX, I ,33).

38 John Grech vs Prime Minister (CC) (31 January 2014) (68/11).

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4. Conclusion The saga which applicants have suffered in the application of this proviso runs counter to the spirit and letter of the law; courts of constitutional jurisdiction should have the widest power to take up a human rights case and decide it; they should also restrictively apply the proviso and limit its application only to the most obvious cases. Otherwise, the wording of the supreme law in protecting one’s rights becomes hollow and futile. The proviso should no longer be a reef on which vessels of human rights are shipwrecked; but an exceptional option to prevent abuse of the right to petition.

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Kathleen Vella The European Convention on Human Rights in the time of Covid-19: To invoke or not to invoke Article 15?

Dr Kathleen Vella read for a Bachelor of Laws with International Relations (2012) and Doctor of Laws (2015) at the University of Malta. She is highly interested in matters related to human rights, and for that purpose, wrote her Doctoral thesis on challenging the unlawful detention of asylumseekers in light of the ECtHR judgments against Malta. She has also written a number of articles on the promotion and protection of human rights. Upon graduation, she joined the diplomatic corps, and is currently reading for an LL.M. in Diplomacy and International Law. The views expressed in this article are solely the author’s personal views.

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id-dritt 1. Introduction

T

he COVID-19 pandemic has caught most States off-guard, bringing leaders to their knees, fretting over how to effectively and successfully manage their responses in the face of multitudinous challenges. The reconciliation of public health and individual’s rights and freedoms was often the bone of contention as States navigated through unchartered territory.

This pandemic has highlighted the rapidness at which individual human rights may be encroached upon as a result of responsive measures. In this light, this article will look at the application and implications of the invocation of Article 15 of the European Convention on Human Rights (ECHR) during the COVID-19 pandemic. Moreover, this article will also examine whether Article 15 is sufficiently clear and whether its clarity (or lack thereof) aided or hindered the protection of human rights during the pandemic. The premise of this article is that ‘human rights place crucial outer limits on emergency action, particularly in ensuring that draconian measures are abolished once the crisis fades’.1 It is only such a point of departure which would prevent us from shifting towards a new normal characterised by a diluted system of human rights protection.

2. Article 15: Content and Historical Application The European Court of Human Rights’ (ECtHR/ the Court) decisions on Article 15 are relatively limited and the cases wherein the said Article has been dealt with, tend to concern public emergencies associated with terrorism and inter-State cases. Therefore, the Court’s interpretation of Article 15 within the context of a pandemic has not been provided yet; this confirms that the circumstances that the world found itself in early 2020 are beyond ordinary, even from a legal standpoint. Prior to delving into questions on sufficiency and effectiveness, this section will extract the requisite elements of invoking Article 15 and question whether the COVID-19 pandemic would fall within the scope of this article.

1 Niall Coghlan, ‘Rights in a time of quarantine - an extended look’ (UK Human Rights Blog Crown Office Row, 17 March 2020) <https://ukhumanrightsblog.com/2020/03/17/rights-in-atime-of-quarantine-niall-coghlan/> accessed 4 August 2020.

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Human Rights Law 2.1 Elements of Article 15 ECHR Article 15 ECHR states that, 1. In time of war or other public emergency threatening the life of the nation, any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.2

2.1.1. ‘[P]ublic emergency threatening the life of the nation’ The first sub-paragraph of Article 15 outlines the serious circumstances which may lead to the invocation of this article and asserts that it should only be applied to ‘the extent strictly required by the exigencies of the situation’.

One must first determine what constitutes a ‘public emergency threatening the life of the nation.’ In Lawless, the Court established that this referred to ‘an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.’3 Reference must also be made to the Greek case wherein it was clarified that the emergency had to be:

2 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), Article 15.

3 Lawless v Ireland (No 3) (ECtHR, 1 July 1961) Series A no 3 para 28.

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id-dritt actual or imminent; that it should affect the whole nation to the extent that the continuance of the organised life of the community was threatened; and that the crisis or danger should be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, were plainly inadequate.4 This tallies with Judge Maridakis’ argument that ‘[a public emergency] is to be understood [as] a quite exceptional situation which imperils or might imperil the normal operation of public policy established in accordance with the lawfully expressed will of the citizens…’5 Prima facie, it would thus appear that the dramatic events surrounding the early stages of COVID-19 would indeed constitute a public (health) emergency which threatens the life of the nation, particularly due to the lack of knowledge of the extent of the virus’ damage, on the details of its transmission, and the potential consequences of its infection.

2.1.2 ‘[T]o the extent strictly required by the exigencies of the situation provided that such measures are not inconsistent with its other obligations under international law’ Once a public emergency has been established, one may argue that there are three potential models of reaction - the model of ‘Accommodation’ through which one adapts laws in a staggered manner reflecting the unfolding realities, rendering it both flexible and appealing; the model of ‘Business as Usual’ which attempts to enforce the ordinary laws and measures to the abnormal situation, but which may prove to be unrealistic to properly cater for an emergency; and finally, Hickman’s Extra-Legal model which would impose derogation clauses for each respective right in order to be prepared for every potential adversity, risking going down an overly restrictive slippery slope which may be counterproductive.6 4 Government of Denmark v the Government of Greece; Government of Norway v the Government of Greece; Government of Sweden v the Government of Greece; Government of the Netherlands v the Government of Greece (1968) 25 CD 9 as referred to in A. and Others v UK App No 3455/05 (ECtHR, 19 February 2009), para 176.

5 Lawless v UK (n 3) Individual Opinion of Judge Maridakis.

6 Marlies Vanhooren, ‘Suspending Human Rights: An Investigation into the legal possibilities and practice sub-title’ (Master of Laws thesis, Ghent University 2018) <https://lib.ugent.be/fulltxt/ RUG01/002/508/545/RUG01-002508545_2018_0001_AC.pdf> accessed 7 August 2020.

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Human Rights Law Whichever response is adopted, one must emphasise the importance of proportionality. Mokhtar argues that this principle consists of three constraints in terms of severity, duration and scope. In this sense, the responses should be proportionate to the threat, that is, the measures adopted should reflect the threat’s stage (if the threat has varying stages), and ‘measures, which at their inception were clearly required, could cease to be so if they proved either to be ineffectual or if it could no longer be established that they were strictly required by the situation.’7 As for duration and scope, measures should only be applicable in affected areas for a limited period of time and limited to that which is strictly required. Proportionality is crucial in order to avoid falling into the trap of perceiving human rights as an adjustable luxury which could simply be switched off and whose restriction may be regarded as a ‘thoroughly reasonable reaction to the dangers allegedly faced by democratic societies.’8 Looking at the text of Article 15, one may argue that the derogation clauses have been drafted specifically to cater for such situations since the drafters were not ‘oblivious to the serious problems that may develop in a country and may endanger its very survival’.9 Moreover, in adopting certain measures, States must bear in mind that Article 15 does not alter their obligations under international law; therefore, the invocation of Article 15 does not absolve States from fulfilling their other commitments and obligations under international law.

2.1.3 What Articles Can Be Derogated From?

Article 15(2) makes it very clear that there are a number of Articles which cannot be derogated from, referring mainly to the ECHR’s non-derogable rights: Article 2; (right to life, except for when resulting from lawful acts of war), Article 3; (prohibition of torture), Article 4; (prohibition of slavery and forced labour) and Article 7; (no punishment without law). While understanding and 7 Francis G. Jacobs and Robin C.A. White, The European Convention on Human Rights (2nd edn, Clarendon Press 1996) 320.

8 Liora Lazarus and Benjamin J Goold, ‘Security and Human Rights: The Search for a Language of Reconciliation’ in BJ Goold and L Lazarus (eds) Security and Human Rights (Hart 2007) 4; Therese Murphy & Noel Whitty, ‘Is human rights prepared? Risk, rights and public health emergencies’ (2009) 17:2 Medical Law Review 219.

9 Office of the High Commissioner for Human Rights in cooperation with the International Bar Association, ‘Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyer’’: Chapter 16 The Administration of Justice During States of Emergency (UN New York and Geneva, 2003) 813 <https://www.ohchr.org/Documents/Publications/training9chapter16en.pdf> accessed 4 August 2020.

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id-dritt recognising the non-derogability of these articles, one questions whether, with respect to the remaining rights not mentioned by Article 15(2), it would be necessary to invoke Article 15 or whether it would suffice to rely on their respective limitation clauses, which at time specifically refer to ‘protection of health’ and ‘for the prevention of the spreading of infectious diseases’.

Although one may criticise the invocation of Article 15 one must also accept that when faced with such an emergency, governments would be expected to act in the most flexible manner. In this sense, the ECHR and its corresponding mechanisms should not be perceived as a hindrance to the governments’ implementation of effective control measures aimed at dealing with the pandemic. When States are faced with abnormal situations, the invocation of derogations may give off the false impression that individual rights and liberties may be restricted in a dystopian fashion. However, what is non-derogable under ordinary circumstances, remains as such even when derogations are invoked, and a degree of leeway is already granted under the ordinary limitations provided for by the ECHR.10 On the other hand, one may also argue that the fact that Article 15 forms part of the Convention implies that whereas the ordinary limitations would be applicable in ordinary circumstances, the extraordinary nature of public emergencies, in this case the pandemic, would merit extraordinary responses such as the invocation of Article 15.

Therefore, derogations should not be seen as the automatic response but as the last option, when the limitations envisaged by the ECHR are insufficient to address the situation at hand. In this regard, Svensson-McCarthy presents limitations and derogations as an interconnected legal continuum rather than as distinct from one another, in that there must be continuous protection of the rights in question.11 The notions of limitations and derogations affirm that human rights instruments do indeed address risks, and that there are sufficient tools at hand for human rights to be balanced against other interests.

10 Sean Molloy, ‘Covid-19 and Derogations Before the European Court of Human Rights’ (Verfassungsblog: On Matters Constitutional, 10 April 2020) <https://verfassungsblog.de/covid-19and-derogations-before-the-european-court-of-human-rights/> accessed 2 August 2020.

11 Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception (1st edn, Brill-Nijhoff 1998) 49 & 721.

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Human Rights Law 2.1.4 The Importance of Notification The significance of the content of Article 15 is asserted by the requirement to inform the Secretary General of the measures put in place, the relative reasons, and to inform when such measures are lifted. This is reinforced further through the public element of making the other Contracting Parties to the Convention aware of such derogations. Mokhtar describes the notification mechanism as ‘one of the important protective elements embodied in Article 15’.12 This confirms the wider implications of Article 15 which render it anything but a unilateral decision. In this regard, in his dissenting opinion, Judge Makarczyk opined that: [a] derogation made by any State affects not only the position of that State, but also the integrity of the Convention system of protection as a whole. It is relevant for other member States - old and new ...13 Having said that, it is still unclear at which point this notification should be made. For instance, a British judge did not deem it essential to notify the Secretary General of the Council of Europe prior to invoking Article 15 in his decision.14 Moreover, in the first Cyprus Case, the British Government argued that a State’s derogation ‘is in no way dependent on the obligation under paragraph (3) the Secretary General of the Council of Europe.’15 However, one would favour the interpretation that there must be the cumulative actions of informing the Secretary General and of making a public announcement at the domestic level prior to invoking Article 15.16

12 Aly Mokhtar, ‘Human rights obligations v. derogations: article 15 of the European Convention on Human Rights’ [2004] Vol 8(1) The International Journal of Human Rights 65, 76.

13 Brannigan and McBride v UK App No 14553/89; 14554/89 ECtHR, 25 May 1993) Series A no 258, Dissenting Opinion of Judge Makarczyk.

14 Stevie Martin, ‘A Domestic Court’s Attempt to Derogate from the ECHR on behalf of the United Kingdom: the implications of Covid-19 on judicial decision-making in the United Kingdom’ (EJIL:Talk! Blog of the European Journal of International Law, 9 April 2020) <https://www.ejiltalk. org/a-domestic-courts-attempt-to-derogate-from-the-echr-on-behalf-of-the-united-kingdom-the-implications-of-covid-19-on-judicial-decision-making-in-the-united-kingdom/> accessed 15 July 2020.

15 Greece v UK App No 176/56 (Commission Decision, 2 June 1956) para 154 (a).

16Natasha Holcroft-Emmess, ‘Derogating to Deal with Covid 19: State Practice and Thoughts on the Need for Notification’ (EJIL: Talk! Blog of the European Journal of International Law, 10 April 2020) <https://www.ejiltalk.org/derogating-to-deal-with-covid-19-state-practice-andthoughts-on-the-need-for-notification/> accessed 3 August 2020.

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This lack of clarity inspired the Parliamentary Assembly of the Council of Europe (PACE) to attempt to address this situation. In 2018, in virtue of Resolution 2209 (2018), PACE proposed an additional stratum in the supervision of derogations which would grant the Secretary General a more active role, not only in terms of providing advice to States intending to enter a derogation, on whether it is necessary and to what extent it may be done, but in also being able to open an inquiry in terms of Article 52 ECHR with regard to the State in question.17 This raises a number of questions in terms of the distinct duties of the Office of the Secretary General and the role of the ECtHR, the latter remaining the ultimate decider of the legality or otherwise of derogations. Having said that, such a new role could grant the Secretary General a somewhat complementary role to that of the ECtHR in safeguarding and upholding the three pillars of the Council of Europe.

One may argue that Resolution 2209 and the wording of Article 15 diverge in that in the former, the Secretary General should advise and supervise, whereas in the latter, the Secretary General’s role is of a more consultative nature. Therefore, whereas in the former it would appear that States should first consult with the Secretary General prior to invoking a derogation, the latter suggests that this should only be done a posteriori. As for the reference to Article 52, which provides for inquiries by the Secretary General for explanations on whether a State’s internal laws guarantees the effective implementation of the Convention, it might appear too cumbersome in the current context, especially when one considers the challenges which most States faced at the beginning of the COVID-19 pandemic.18 The circumstances leading to the adoption of this resolution concerned restrictions in the aftermath of terrorist attacks and attempted coup d’etat in Turkey which can hardly be compared to the current situation, with the potential consequence that a greater degree of leeway would be permitted in the case of a pandemic due to the quick paced developments. Taking into account the fairly recent adoption of this resolution, it is unsurprising that it did not appear to feature in the consideration of States entering derogations 17 Parliamentary Assembly of the Council of Europe, Resolution 2209(2018): State of Emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights’ (Strasbourg, 24 April 2018).

18 Kushtrim Istrefi, ‘Supervision of Derogations in the Wake of COVID-19: a litmus test for the Secretary General of the Council of Europe’ (EJIL: Talk! Blog of the European Journal of International Law, 6 April 2020) <https://www.ejiltalk.org/supervision-of-derogations-in-the-wakeof-covid-19-a-litmus-test-for-the-secretary-general-of-the-council-of-europe/> accessed 18 July 2020.

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Human Rights Law since the communications which the said States sent to the Secretary General were more of a declaratory one-sided notification rather than a dialogue or request for advice.

2.1.5. COVID-19 and Articles Derogated From This section will briefly mention the Articles that the States invoking Article 15 derogated from. Although some rights are recurring and are quite understandable against the backdrop of the COVID-19 pandemic, one may argue that although specifying which rights are being derogated from is not required per se, generic letters of notification may give the erroneous impression that all-encompassing derogations are permissible.19 In entering its derogations, Albania argued that the scope was to ensure ‘epidemiological safety, restrict the spread of COVID-19 and ensure public health at national level’, while referring to Articles 8 and 11 ECHR, Articles 1 and 2 of the Protocol to the ECHR, and Article 2 of Protocol 4 to the ECHR as possibly being derogated from.20 The same derogations were entered into

by Latvia and North Macedonia, with the exception of Article 1 of the Protocol to the ECHR. It is worth noting that Latvia’s withdrawals of derogations were staggered and mirrored the state of the pandemic and level of emergency.21 Estonia’s derogations, aimed at ‘[combating] the spread of the coronavirus in Estonia, in the most efficient manner’ were slightly wider, in also encompassing Articles 5 and 6.22 Similarly, Georgia also included Article 19 Patricia Zghibarta, ‘The Whos, the Whats, and the Whys of the Derogations from the ECHR amid COVID-19’ (EJIL: Talk! Blog of the European Journal of International Law, 11 April 2020) <https://www.ejiltalk.org/the-whos-the-whats-and-the-whys-of-the-derogations-from-theechr-amid-covid-19/> accessed 21 July 2020.

20 Albania Notification - JJ9020C Tr./005-231 dated 1 April 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https:// rm.coe.int/16809e0fe5> accessed 30 July 2020.

21 Latvia Notification - JJ9012C Tr./005-225 dated 16 March 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https:// rm.coe.int/16809ce9f2> accessed 30 July 2020; North Macedonia Notification - JJ9021C Tr./005-232 dated 2 April 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https://rm.coe.int/16809e1288> accessed 30 July 2020 22 Estonia Notification - JJ9017C Tr./005-229 dated 20 March 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https:// rm.coe.int/16809cfa87> accessed 30 July 2020.

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id-dritt 5 to its list of derogations.23 As for the Republic of Moldova, the Articles derogated from were Article 11, Article 2 of First Protocol and Article 2 of Protocol number 4.24 Armenia,25 Serbia26 and San Marino27 did not explicitly mention any specific rights, merely informing that measures taken may affect rights and obligations stemming from the Convention. Romania also did not specify particular articles being derogated from, but these could be deduced from the documents attached to the notification which mostly dealt with Article 5, Article 11, and Article 1 of Protocol 1.28

2.2 The Council of Europe’s Toolkit for Member States: ‘Respecting Democracy, Rule of Law and Human Rights in the Framework of the COVID-19 Sanitary Crisis: A toolkit for Member States’29 The immediate reaction to the unfolding realities surrounding the pandemic, was one of confusion and uncertainty as to whether a State should derogate from Article 15 or not, and some States may have derogated under the false impression that a derogation would disable individuals from seeking recourse to the ECtHR for any violations of human rights committed 23 Georgia Notification - JJ9018C Tr./005-230 dated 23 March 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https:// rm.coe.int/16809cff20> accessed 30 July 2020.

24 Republic of Moldova Notification - JJ9016C Tr./005-228 dated 20 March 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https://rm.coe.int/16809cf9a2> accessed 30 July 2020.

25 Armenia Notification - JJ9015C Tr./005-227 dated 20 March 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https://rm.coe.int/16809cf885> accessed 30 July 2020.

26 Serbia Notification - JJ9025C Tr./005-234 dated 7 April 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https:// rm.coe.int/16809e1d98> accessed 30 July 2020.

27 San Marino Notification - JJ9026C Tr./005-235 dated 14 April 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https://rm.coe.int/16809e2770> accessed 30 July 2020.

28 Romania Notification - JJ9014C Tr./005-226 dated 18 March 2020: Declaration related to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) <https://rm.coe.int/16809cee30> accessed on 30 July 2020.

29 Sec. Gen. Marija Pejčinović Burić, Council of Europe: Information Documents, ‘Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A toolkit for member states’ [SG/Inf(2020)11, Strasbourg, 7 April 2020] .

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Human Rights Law during the pandemic. In reaction, the Council of Europe published a Toolkit intended to help Member States in their protection human rights. Considering the circumstances and the short period of time during which the document was drawn up, one must admit that the toolkit is helpful and may indeed serve as a good guidance. However, one may also argue that it was not sufficiently timely since a number of States had already entered derogations by the time the toolkit was published, and thus a proactive toolkit/handbook would have definitely helped. In its introduction, the toolkit recognises that certain rights and freedoms may be encroached upon as a result of the protective mechanisms which States put in place in order to respond to the sanitary crisis. Furthermore, it also asserts the significance of Article 15 as ‘an important feature of the system, permitting the continued application of the Convention and its supervisory machinery even in the most critical times’.30 The pandemic has given rise to several questions on why only a handful of the Council of Europe’s Member States invoked the derogation, and therefore what distinguished the group of Member States which did, from the rest. This is all more interesting when one considers that the States which actually invoked the derogation were not States which were considered to have suffered the most. It may be interesting to carry out an in-depth analysis into whether the fact that most of the Member States, which entered a derogation were members of the former Communist bloc, since some may argue that the human rights’ protection systems tend to be weaker in comparison to Western systems. The considerations leading to a positive decision to enter a derogation, may be based on good faith on the part of the said States in order to elevate the responses to reflect the emergency at hand. Nonetheless, it could equally be a means of defence against any potential cases stemming from this period.31 In this regard, although the Toolkit contains important clarifications on essential principles and human rights standards with regard to specific rights, greater clarity is required in order to prepare ourselves for potentially similar emergencies. The Greek chairmanship of the Committee of Ministers of the Council of Europe, has made the protection of human rights during public health crises its priority. Thus, one hopes that concrete measures on how to safeguard human rights, in the eventuality of another pandemic, would be outlined in the declaration to be adopted at the end of the Greek chairmanship in November 2020.

30 ibid 2.

31 Zghibarta (n 19).

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3. The State or the Court: Whose Say on Article 15?

Questions often arise as to who is better placed to determine what measures should be adopted during State emergencies, and whether the State enjoys unfettered discretion in this regard. This section will examine one of the leading notions of the ECtHR, the Margin of Appreciation, which is at times seen as being equally beneficial and problematic, as well as delve into the Court’s role and the extent to which States can act as they please in such situations.

3.1 The Margin of Appreciation: A Double-Edged Sword?

The margin of appreciation grants Contracting Parties a degree of manoeuvre in deciding which measures to adopt since they are more familiar with the situation on the ground than the Court. Concurrently, it is often described as a double-edged sword since the leeway granted may appear to be far too wide on some occasions. In the current context, the margin of appreciation is also relevant due to the fact that only a few States have invoked Article 15 during the Covid-19 pandemic.

Having said that, the restriction and suspension of human rights can be extremely dangerous when done in a haphazard manner without any oversight mechanisms. In this regard, reference must be made to President Orban’s rule by decree, which was perceived by many as an extremely dangerous move at a time when Hungary was already facing criticism from its European partners on matters concerning the rule of law. It is for this reason that the invocation of derogations may be beneficial in order to guarantee that the measures which are adopted are limited to that which is truly necessary and in line with the provisions of the Convention. The Court has argued that ‘a process of continued reflection is not only in keeping with [Article 15(3)] …which requires permanent review of the need for emergency measures but is also implicit in the very notion of proportionality.’32 This also demonstrates the difference in States’ reactions, and one will have to wait to see whether this would eventually feature in the Court’s consideration of the margin of appreciation when dealing with Covid-19-related cases.

In this regard, one may be able to compare this with the aftermath of 32 Brannigan and McBride v UK (n 13) para 54.

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Human Rights Law 9/11 and the threats posed by Al Qaeda, since States had also reacted differently in that situation, with the UK being the only Contracting Party to invoke a derogation. In this regard, ‘the Court [accepted] that it was for each Government, as the guardian of their own people’s safety, to make their own assessment on the basis of the facts known to them.’33 This flexibility may also be warranted in public emergencies. In Lawless v UK, Judge Maridakis opined that ‘[w]hen the State is engaged in a life and death struggle, no one can demand that it refrain from taking special emergency measures… Article 15 … is founded on that principle.’34 In Brannigan and McBride, the Court recalled that ‘(by) reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it.’35 Similarly, in Sahin Alpay, it was also argued that it is up to the State in question to; determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency... By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter, a wide margin of appreciation should be left to the national authorities.36 However, the Court has continuously emphasised that, ‘it is ultimately for the Court to rule whether the measures were “strictly required” … [and whether] a derogating measure encroaches upon a fundamental Convention right’.37 Applying these elements to the current context, it would appear that States may singlehandedly decide what measures to implement in dealing with the pandemic and in connection with Article 15, since they are better placed to determine what is needed, but this is not entirely so since it 33 A. and Others v UK App No 3455/05 (ECtHR, 19 February 2009) para 180.

34 Lawless v UK (n 3) Individual Opinion Judge Maridakis.

35 Brannigan and McBride v UK (n 13) para 43.

36 Şahin Alpay v Turkey App No 16538/17 (20 March 2018) para 75.

37 A. and Others v UK (n 33) para 184.

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id-dritt would be far too dangerous for the Court not to be able to examine, when so required, the invocation of Article 15. In this regard, in its examination of Article 15, the ECtHR has inserted a safety valve in affirming that the margin of appreciation is not an all-encompassing infinite right, and that it is exercised under European supervision.38 Gross and Aolain argue that ‘[e]mergencies are extraordinary events. They require extraordinary scrutiny and a willingness to confront the potentially abusive practices of states that may lead to systematic denials of rights, concentration of state power in narrow executive structures and the subversion of democratic principles by legal means.’39 This realistic approach observes States from a more critical perspective meriting greater scrutiny and supervision since human rights are most fragile during emergencies. They argue that ‘the margin of appreciation has been extended and expanded... increasingly eating away the Court’s ability to exercise meaningful and effective supervision over the actions and measures undertaken by state parties in circumstances of alleged public emergency’.40 Moreover, they assert that the margin of appreciation was never intended to be ‘an unfettered discretion on the derogating government.’41 Gross and Aolain criticise this wide margin of appreciation for two reasons; primarily, they argue that the Court grants States ‘the widest margin of appreciation’ under Article 15, resulting in a defence of an otherwise violation of a right, and thus should grant the narrowest margin of appreciation in such situations coupled with the highest possible judicial scrutiny. Secondly, not all public emergencies are identical and each merits its own particular supervision, with some requiring greater supervision.42 In spite of the difficulties which public emergencies bring with them, ‘the Court retains, at least rhetorically, its supervisory power in order to ensure that “public emergencies’ do not become a pretext to unwarranted deviations from the guarantees provided by the European Convention’.43 Aolain contends that the derogation mechanism therefore, requires the opt-out specification from the relevant articles and subjects the said derogations, to 38 Mehmet Hasan Altan v Turkey App No 13237/17 (ECtHR, 20 March 2018) para 91; Sahin Alpay v Turkey (n 36) para 75; Brannigan and McBride v UK (n 13) para 43.

39 Oren Gross and Fionnuala Ní Aoláin, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ [2001] 23(3) Human Rights Quarterly 625, 627.

40 ibid 632.

41 ibid 634.

42 ibid 636-7.

43 ibid 635.

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Human Rights Law an external supervisory scrutiny.44 The premise of the derogation regime is that during such emergencies, ‘human rights are susceptible to incursions and infringements during acute pressures of emergency and crisis, more so than at any other time.’45 Thus, in view of these arguments, one may conclude that the derogation regime and the subsequent supervision by the Court, should a case arise, are intended to limit States from adopting measures which go beyond that which is necessary.46 Mokhtar contends that a wide margin of appreciation, coupled with the ambiguous manner in which Article 15 was drafted, may provide Contracting Parties acting in bad faith with an ‘escape route’ to carry out certain actions, which would otherwise not be permitted.47 He argues that ‘(u)nless there exists a reasonably precise definition of public emergency, together with a corresponding clarification of the doctrine of the margin of appreciation, with scrutiny on national and international levels, Article 15’s scope of application will remain blurred.’48 At the same time, considering the inherently varying characteristics of public emergencies, it would have been practically impossible for the drafters of the Convention to create an exhaustive Article, catering for every possible eventuality.

3.2 The Court’s Role In spite of the margin of appreciation, the Court remains ‘the final arbiter of the scope and content of the Convention’ and it is not limited in its ability to review and supervise the legality of the derogation and issues stemming therefrom49’:’ [i]n short and to be clear, the robust and coherent application of the principle of subsidiarity by the Court has nothing to do with taking power 44 Fionnula Ni Aolain, ‘Transitional Emergency Jurisprudence: Derogation and Transition’ in Antoine Buyse & Michael Hamilton (eds) Transitional Jurisprudence and the ECHR: Justice, Politics and Rights (Cambridge University Press 2011), 28.

45 Gross and Aolain (n 39) 635.

46 ibid 635.

47 Mokhtar (n 12) 72.

48 Mokhtar (n 12) 79.

49 Sahin Alpay v Turkey (n 36), Concurring Opinion of Judge Spano joined by Judges Bianku, Vučinić, Lemmens And Griţco, para 3.

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id-dritt away from the Court.’50 This continues to be so even at times of a public emergency and the existence of such an emergency; is not an open invitation to member States to erode the foundations of a democratic society based on the rule of law and the protection of human rights. Only measures which are strictly required by the exigencies of the situation can be justified under the Convention, and it is ultimately for the Court to pass judgment at the European level on whether such justification has been adequately demonstrated on the facts.51 In exercising its supervision, the ECtHR takes into account a number of considerations such as whether ordinary legislation would have sufficed without entering a derogation; whether the measures which were implemented were considered to be genuine responses to the emergency situation at hand; whether there were any safeguards in place to prevent abuse; whether derogatory measures were proportionate and justified; and whether the derogations were limited in scope and reason, amongst others.52 It has often been argued that the assessment of the threat to the nation must be in accordance with the facts which exist at the time of the invocation; however, in A and others v UK, the ECtHR held that it may also take into consideration subsequent information which materialises following the derogation.53 Gross and Aolain also reject the notion that national authorities are better placed than the Court to assess the situation. This becomes even more dangerous during public emergencies wherein ‘notions of the rule of law, rights, and freedoms take a back seat, considered as legalistic niceties that bar effective action by the government.’54 In such a case, the Court, being farther away may be the better placed to assess the situation. Hence, ‘it may well be that the supranational Court, detached and further removed from the immediate turmoil, reviewing the relevant issues post facto rather than at the time of their occurrence, is able to judge matters more clearly and more accurately.’55 All in all, one must avoid a scenario whereby ‘the greater danger from the emergency [would lie] not in the physical threat to the nation but rather in the danger inherent in over-reaction that may smooth the transition 50 ibid para 3.

51 ibid para 4.

52 Brannigan and McBride (n 13) para 48-65.

53 A. and Others v UK (n 33) para 177.

54 Gross and Aolain (n 39) 638-9.

55 ibid 639.

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Human Rights Law into governmental authoritarianism even when the particular emergency is removed.’56 Ultimately, Gross and Aolain argue that in such situations the Court should not play a ‘supporting, subsidiary role’ but a ‘primary responsibility for such protection.’57 One must also question the effectiveness of the supervisory mechanisms especially since the ECtHR was operating on reduced capacity and on a system of priorities during the Covid-19 lockdown. Under the hierarchical principle, Article 15 derogations would not appear to be classified as priority cases, meaning that we may have to wait a while for the ECtHR’s considerations on Covid-19 and Article 15. Regrettably, apart from a few letters which could be exchanged between the Secretary General and the State concerned, there appears to be no other immediate action which could be taken with regard to Article 15 derogations.58 Some have proposed a completely different approach of not referring such matters to legal avenues or to seeking redress when ‘the health security of the community is at stake’.59 In this proposal, the approach is based on good faith, placing the responsibility of supervision on the international community and society (or ‘empowered citizenry’) to ensure that the requisite balance between public health and individual human rights is struck. Concurrently, Lupi opines that ‘[i]nter-State relations based on mutual respect can provide for an effective safeguard against abuses, one that is based on reputation rather than on sanction.’60

56 ibid 648.

57 ibid 649.

58 Biljana Kotevska, ‘On Shaky Ground: Human Rights and COVID-19 in North Macedonia after the derogation from the European Convention on Human Rights’ (April 2020) <https://epi.org. mk/wp-content/uploads/2020/05/ENG-ECHR-MK-COVID19.pdf> accessed 10 July 2020, 13.

59 Lesley A Jacobs, ‘Rights and Quarantine during the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai and Toronto’ (2007) 41 Law and Society Review 511, 514.

60 Sarah Lupi, ‘Can not restricting human rights violate them?’ (Universiteit Leiden: Leiden Law Blog, 3 April 2020) <https://leidenlawblog.nl/articles/can-not-restricting-human-rights-violate-them> accessed 18 July 2020.

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4. Article 15: To Derogate or Not to Derogate?

Having examined the arguments above, it would be beneficial to deduce whether a State should or should not enter such derogations during a pandemic. Whichever stance is adopted, one must stress that the unprecedented circumstances have put into perspective the utmost significance of safeguarding and protecting human rights.

Greene argues that States should in fact invoke Article 15, since the alternative would be the normalisation of the excessive power exercised by some governments in reaction to the pandemic. According to Greene, the Covid-19 pandemic was the epitome of a public emergency for which Article 15 was created to address.61 Invoking Article 15 may thus be seen as the tool which is needed to safeguard rather than to thwart human rights, since the alternative would be a less favourable reinterpretation of human rights, characterised by the perpetuation of unlimited and unsupervised restrictions. In this sense, it would be better for human rights to be restricted in view of the derogation entered into de jure, in virtue of Article 15 with its corresponding safeguarding measures, rather than de facto haphazardly without any oversight mechanisms.

One cannot discuss states of emergency without referring to Schmitt’s statement of ‘Sovereign is he who decides on the exception’62 and in this sense, Greene concludes that ‘...if there is one lesson to take from Schmitt, it is the dangers of permanent transformative emergency powers, rather than temporary, defensive ones.’63 Costa agrees that the pandemic presents an excellent example of when Article 15 should be invoked. Resorting to Article 15 may be beneficial, primarily in terms of transparency in a State, which respects the rule of law not only vis-a-vis its own citizens, but also in its relations with the other Contracting Parties. If anything, he argues that entering a derogation grants citizens more protection, since derogations must be limited to what is strictly required, and exposes an additional level of supervision of the measures adopted.64 Tsampi too concurs that a 61 Alan Greene, ‘States should declare a State of Emergency using Article 15 ECHR to confront the Coronavirus Pandemic’ (Strasbourg Observers, 1 April 2020) <https://strasbourgobservers. com/2020/04/01/states-should-declare-a-state-of-emergency-using-article-15-echr-toconfront-the-coronavirus-pandemic/> accessed 15 July 2020.

62 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1922), translated

by George Schwab (University of Chicago Press 2005).

63 Greene (n 61).

64 Jean-Paul Costa, ‘Le recours à l’article 15 de la Convention européenne des droits de

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Human Rights Law derogation is needed especially in view of the ‘intrusive’ nature of some of the measures which are adopted. In this regard, Tsampi describes Article 15 as an essential component of the ECtHR’s ‘legal arsenal’ in underscoring that the extraordinary situation which we have found ourselves in, and the extraordinary impact it has had on human rights, requires an equally extraordinary response.65 Hence, one could argue that, in applying Article 15, the emphasis is on the public emergency element implying the temporary restriction of human rights, as opposed to an interminable suspension of human rights.

Interestingly, Scheinin refers to the ‘principle of normalcy’ in referring to the handling of the COVID-19 pandemic ‘through normally applicable powers and procedures and [insisting] on full compliance with human rights, even if introducing new necessary and proportionate restrictions upon human rights on the basis of a pressing social need created by the pandemic.’66 Moreover, in notifying the Secretary General and the international community of the derogations entered into, a State would be demonstrating its ‘commitment to legality and normalcy’.67 Scheinin agrees with Greene and Costa that resorting to Article 15 may actually help to tame emergency powers since it restricts States in implementing only that which is necessary, proportionate and temporary. In this regard, it is the absence of the invocation of Article 15 which poses more dangers in that it ‘risks normalising exceptional powers and permanently recalibrating human rights protections downwards’.68 Having said that, Scheinin’s preference would be to rest upon the limitations permitted by the Convention, and when these prove to be insufficient, one should resort to Article 15.

Spadaro is also cautious and argues that ‘measures restricting the enjoyment of human rights and the war rhetoric that accompanies them, l’homme’ (Le Club des Juristes, 27 April 2020) <https://www.leclubdesjuristes.com/blog-du-coronavirus/que-dit-le-droit/recours-article-15-cedh/> accessed 15 July 2020: ‘Nul doute que le Covid-19, avec ses effets catastrophiques sur la santé, mais aussi sur la société, sur l’économie, le fonctionnement de l’État, la vie organisée…justifie, par excellence, le recours à l’article 15.’

65 Aikaterini Tsampi, ‘Public Health and the European Court of Human Rights: Using Strasbourg’s Arsenal in the COVID-19 Era’ (Global Health Law Groningen, 27 March 2020) <https:// www.rug.nl/rechten/onderzoek/expertisecentra/ghlg/blog/public-health-and-the-european-court-of-human-rights-27-03-2020?lang=en> accessed 15 July 2020.

66 Martin Scheinin, ‘Covid-19 Symposium: To Derogate or Not to Derogate?’ (Opinio Juris, 6 April 2020) <http://opiniojuris.org/2020/04/06/covid-19-symposium-to-derogate-or-not-to-derogate/> accessed 5 July 2020.

67 Scheinin (n 66).

68 Greene (n 61).

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id-dritt can open the way to the abuse of emergency regulations and the overreach of executive powers.’69 The rhetoric used by several Heads of State already alludes to a war, granting support to the invocation of Article 15. At the same time one must acknowledge that some of the most effective measures which were necessary to contain the further spreading of the pandemic was to impose social distancing measures and lockdowns. In this sense, the situation necessitating the imposition of such measures may be seen as being in disagreement with the general umbrella of human rights protection.

Spadaro, like Scheinin, argues that derogations should only be resorted to when the permitted limitations are insufficient.70 Whichever restricted tool is resorted to, transparency and accountability are to be emphasised.

Dzehtsiarou, on the other hand, opines that in practice, Article 15 would not be of much benefit in the context of the COVID-19 pandemic and may prove to be more detrimental since it may convey an incorrect message of extensive restrictions. In this sense, he argues that Article 15 could do little beyond that which the ordinary limitations can achieve, and that the focus should be on accountability rather than on whether to rely on the limitations, or to enter a formal derogation. In comparing the two options, he argues that within the ordinary limitations, measures imposed would need to be both legal and proportionate. However, although a degree of leeway may be granted, what is unlawful does not magically become lawful just because a State has invoked Article 15. Moreover, the severity of the pandemic may very well satisfy the proportionality element irrespective of whether a derogation is invoked. He concludes that, in practice, the difference between the outcomes of limitations and derogations is minimal.71 One may therefore conclude that the dangers of not entering a derogation risks an uncontrolled and unlimited de facto derogation which poses more risks than a de jure derogation would. Perhaps in this scenario, one could once again refer to Hungary, whereby the empowerment of the order by decree set off alarm bells at the beginning of the pandemic. In this regard, the Secretary General of the Council of Europe warned that ‘an indefinite and uncontrolled state of emergency cannot guarantee that the basic principles of democracy will be observed, and that the emergency measures restricting 69 Alessandra Spadaro, ‘COVID-19: Testing the Limits of Human Rights’ (2020) 11:2 European Journal of Risk Regulation 317.

70 ibid 321-322.

71 Prof Kanstantsin Dzehtsiarou, ‘COVID-19 and the European Convention on Human Rights’ (Strasbourg Observers, 27 March 2020) <https://strasbourgobservers.com/2020/03/27/covid19-and-the-european-convention-on-human-rights/> accessed 15 July 2020.

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Human Rights Law fundamental human rights are strictly proportionate to the threat which they are supposed to counter.’72 This highlights that in spite of such an emergency, the protection of human rights, the principles of democracy, and the rule of law remain imperative, irrespective of whether derogations are entered into or not.

5. Conclusion One may conclude that although the relevant tools and mechanisms appear to be in place, greater clarity and guidelines on the way forward are desperately warranted in order to ensure that the necessary safeguards are sufficiently provided for ahead of the next emergency. In effectively responding to such public emergencies, States’ actions must be guided by the principles of proportionality, legality, and the rule of law. While considering that the period surrounding Covid-19 was one characterised by uncertainty, legal certainty remains essential. Thus, should States resort to Article 15, a clear outline of the Articles being derogated from, as well as the reasons and period of derogation, are vital. Although one recognises merit in both for and against arguments, one must conclude that invoking a derogation during such a public health crisis is understandable and provided for by the Articles of the Convention. Although one could rely on the limitations contained in the Convention, invoking Article 15 would enable closer supervision by the Secretary General and other Contracting Parties alike, and avoid the normalisation and perpetuation of the suspension of human rights beyond what is necessary.

72 Council of Europe Newsroom, ‘Secretary General writes to Viktor Orban regarding COVID-19 state of emergency in Hungary’ (Strasbourg, 2020) <https://rm.coe.int/orban-pm-hungary-2403-2020/16809d5f04> accessed 10 August 2020.

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Public International Law

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Frances Camilleri-Cassar What is an understanding of the concept of ‘jurisdiction’ in public international law? Analysis of two jurisdictional bases

Frances Camilleri-Cassar is a Full Professor in the Faculty of Laws. She is a social policy expert by training, with a Ph.D. from the School of Sociology and Social Policy at the University of Nottingham. Continuing interest in academic professional development has led her into the study of Law, and in 2020 she was awarded the H. Dip. L.P. magna cum laude from the University of Malta. Professor Camilleri-Cassar is a widely published qualitative methods researcher, and her most recent monograph is titled Academic Research Methods for the Law Student. A second edition of the monograph is currently work-in-progress. She is the Chair of the Faculty Research Ethics Committee, and an active Member of the Human Rights Platform of the Faculty of Laws.

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1. Introduction

T

he concept of jurisdiction, in Public International Law, is traditionally associated with the notion of sovereignty, and is connected with the principle of non-interference in the domestic affairs of other States. In practice, jurisdiction allows the State its competence and power to exercise the sovereignty and independence that belongs to it within its territory, and the power to have its own legal system that impacts upon persons and activities in which it has a legal interest.1 However, while sovereignty gives power to the State to exercise its jurisdiction, it also restricts the exercise of its jurisdiction through the adoption of international rules, which may not always concern domestic issues. In short, the function of jurisdiction is to regulate and restrict the respective competences of States with each other, in a situation of global legal order.2 The competence of jurisdictions is divided into three elements: the legislative element which enacts laws that impact directly on the State’s own territory; the executive element which enforces and monitors the laws of the State to situations and persons; and the judicial element which settles disputes according to the application of the laws within the State’s executive.

The first part of this paper will discuss the key concept of jurisdiction for an understanding of the bases upon which States may exercise their criminal jurisdiction, according to the principles of Public International Law, as well as immunities from jurisdiction e.g. State and diplomatic immunity.

The second part of the paper will analyse two jurisdiction bases accepted in International Law based on two key principles i.e. the territorial principle, which may be both objective and subjective, and may exist concurrently in a jurisdiction; and the nationality principle, which includes active and passive.

The paper concludes with a brief discussion of the protective principle, and the universality principle, as a secondary basis of jurisdiction in Public International Law.

1 Cedric Ryngaert, Jurisdiction in International Law, (2nd edn, OUP 2015).

2 F.A. Mann, The Doctrine of Jurisdiction in International Law, (A.W. Sijthoff 1964).

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2. Jurisdiction Jurisdiction consists in the empowerment of the State ‘to prescribe and enforce the rules of law, and to adjudicate over persons, property and, events within the State’s territory that encompasses its land, its national airspace, and its internal and territorial water.’3 Indeed, this is the key definition of the term ‘Sovereignty of the State’.

As suggested in the introduction of this paper, the three types of jurisdiction are the legislative jurisdiction, the executive jurisdiction and the judicial jurisdiction. I will briefly describe and discuss each jurisdiction. (a) The legislative jurisdiction gives power to the State to make binding rules that govern its territory which, in certain circumstances, may also be legislatively enforceable beyond the State’s territory. For example, a person with links with the State, through domicile or nationality, may be compelled by the State to pay taxes, even though that individual is no longer within the territory of that State.4 The State’s supremacy within its territory is well established in Public International Law, nevertheless, the State must be on its guard not to adopt rules that cross the line of its legislative jurisdiction that are contrary to established Public International Law, or abuse its legal competence over its nationals living abroad. In both circumstances, the State is liable for a breach of Public International Law.5 (b) The executive jurisdiction gives the State power or competence to enforce its rules within its territory,6 nonetheless, it has no authority to exercise those competences on the territory of another State that is outside its own State.7 International Law provides that under no circumstance can a State impose authority on the territorial sovereignty of another State, or enforce its rules on another State without the consent of the State in question.

3 James R Crawford, Brownlie’s Principles of Public International Law, (9th edn, OUP 2019).

4 Malcolm N. Shaw, International Law, (8th edn, OUP 2018).

5 ibid.

6 ibid (n4).

7 ibid (n5).

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id-dritt However, if it does, the State is liable to a breach of Public International Law. (c) The judicial jurisdiction is defined as the power of the State to create its own courts and its own procedures to adjudicate.8 Nevertheless, the courts of the State have no right to influence the operation of adjudication in foreign courts. Yet, there are exceptions to the rule in situations where the State can claim jurisdiction. For instance, exceptions to the rule may apply in civil matters where the defendant is merely present in the State’s territory, or she or he has links with the State pertaining to nationality or domicile.

Alternatively, in criminal matters the exceptions may be linked to principles which vary from the territorial to the universality principle.9

3. Immunity from Jurisdiction The jurisdiction of the State may go far beyond its territorial boundaries in a situation where legal obligations are enforced over persons and things which are outside the territory, but still enjoy some link with the State. At the other end of the spectrum, there may be persons, sovereigns and their diplomatic and consular representatives and international organisations within the territory of the State, which enjoy immunity from the State’s jurisdiction.

Immunity from jurisdiction consists in four distinct situations: the sovereign immunity, the diplomatic immunity, the consular immunity, and immunities of international organisations. Immunity from jurisdiction relates to ‘the duty of the State to respect territorial integrity and political independence of other States’.10

8 ibid.

9 ibid.

10 ibid.

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Public International Law •

Sovereign Immunity derives from the principle of equality and independence of a State, which allows a State to request exemption from the legal rules and principles governing the jurisdiction of another State.11 Sovereign immunity of a territory is strictly monitored and controlled by Customary International Law, and incorporated in international treaties. Examples are the 1972 European Convention on State Immunity and the 1978 UK States Immunity Act.

•

Diplomatic Immunity is governed by codified laws of existing Customary Law, such as the 1961 Vienna Convention on Diplomatic Relations.12 Immunity from criminal jurisdiction of the receiving States, and from its civil and administrative jurisdiction, are enjoyed by members of diplomatic staff.13 For example, under this Convention, the diplomat may not be obliged to give evidence as a witness, be arrested or detained. On the contrary, the receiving State must protect the diplomat from any attack upon the person, and ensure the person’s protection of freedom, and their dignity. Interestingly, in such circumstances, a diplomat is granted immunity from the jurisdiction of the receiving State, and not from the jurisdiction of the sending State.

•

Consular Immunity is governed by the 1963 Vienna Convention on Consular which provides immunity from the jurisdiction of the receiving State only with regards to acts related to the officer’s consular function.

While immunity enjoyed by international organisations are granted by treaties or agreements with the respective State,14 immunity granted to States under Customary International Law is purely functional and regarded outside the sovereignty of the State.15

11 ibid.

12 The 1961 Vienna Convention on Diplomatic Relations, Article 1 and 31.

13 ibid.

14 ibid (n4).

15 ibid (n5).

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4. Territory The most essential element of Statehood is territory. ‘An entity cannot be a State without territory’.16 A State occupies a definitive portion of the earth, which it calls its territory, and exercises exclusive authority over that land.

While the State respects the rights of other States, it also ensures protection from any encroachment or interference by States outside its territory.

A State territory is bound by three dimensions namely, the land, the maritime domain of its internal waters and territorial sea, the airspace, and its subsoil. The dimensions may be either natural topographical e.g. mountainous regions, water in rivers, or lakes, or even imaginary and artificial lines. Such boundaries are protected by treaties or historical titles, and tend to enjoy equal legal effects.

The supreme authority or territorial sovereignty enjoyed by a State is legally defined, and I quote, ‘ownership and possession of a territory that entitles a State to exercise its authority and jurisdiction over the territory.

Jurisdiction justifies competence to affect peoples, properties and events within a territory’.17 Territorial sovereignty of a coastal State, e.g. Malta, extends over the expanse of its continuous zone, its continental shelf, and over its exclusive economic zone. Moreover, the sovereignty of a State also covers its national vessels and aircrafts, whether coastal or landlocked. State sovereignty over land, airspace, outer space, and sea are regulated by treaties and conventions. The 1982 Convention on the Law of the Sea provides an example of a convention that deals with the protection of the State’s territorial seas, its bed, and its subsoil.

16 L Oppenheim, International Law, (eds. R J Jennings and A D Watts, 9th edn London 1992) 563.

17 ibid.

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5. Territorial Principle The territorial concept draws on the broad definition of sovereignty, which means that the State has full competence over all that happens around, on, and over its territory, irrespective of the nationality of the person responsible.18 In Public International Law, territory is supreme in terms of jurisdiction, and the legal implications are that all other States must respect the territorial supremacy of the land without interference, undue influence on its internal affairs, or its territorial jurisdiction. Indeed, the territorial principle comes with unequivocal permissive and prohibitive rules that describe the territorial dimension of sovereignty. In other words, ‘a State’s jurisdictional assertions that pertain to acts carried out in its territory are in principle lawful, while assertions that pertain to acts done outside its territory are suspect, and even presumptively unlawful’.19 The extent of the coverage of the State’s territorial jurisdiction was discussed earlier in this paper. However, it is interesting and pertinent to add that when vessels are on the high seas, Malta has jurisdiction over those vessels registered in Malta. Moreover, Malta is also responsible for territorial jurisdiction that incorporates crimes committed on the State’s territory, as their effects fall under the jurisdiction of Malta.

Territorial jurisdiction is a primary base that may be divided into the active nationality principle and the passive nationality principle e.g. crime that commences or is committed in one State but has effect in another State.

Such a situation presents a concurrent jurisdiction e.g. Malta and Italy. The State that holds physical custody of the offender has the right to exercise jurisdiction. However, if the other State prefers to exercise the case in its own jurisdiction, this leads to a legal situation of concurrent jurisdiction e.g. the Lockerbie case. This case concerned the territorial principle, which is the most important and the most often used out of all three principles. If a crime commences in one territory, then the State is obliged to exercise jurisdiction in its own territory. However, the Lockerbie case is unique in that it created a concurrent jurisdiction where, ‘a subjective territorial jurisdiction may be exercised by the State in whose territory the crime was committed, and an 18 R L Bledsoe and B A Boczek, The International Law Dictionary, (Santa Barbara, ABC-Clio, 1987).

19 ibid (n2).

Shaw, p. 580-1; and Br. 299-300

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id-dritt objective territorial jurisdiction may be exercised by the State in whose territory the crime had its effect’.20 21 Indeed, studies suggest that it is the State’s territory where the crime was committed that determines the primary base of exercising criminal jurisdiction. For instance, Maltese Criminal Courts will always have jurisdiction over crimes that are committed within its territory.

Jurisdiction is primarily territorial, however, its exclusivity may not be rigid.

For instance, States may agree to exercise a right to certain jurisdiction within another State’s national territory.22 A significant example, to demonstrate such an arrangement between States, is the 1991 France-United Kingdom Protocol Concerning Frontier Control and Policing. The Protocol specifically states that regulations and frontier control laws are enforceable by enforcement officers assigned in the control zone of the other State.23

6. The Nationality Principle Nationality is the key principle that surrounds the concept of State jurisdiction. It incorporates the fundamental obligations of a State within the larger community of other States internationally. In other words; nationality consists in personal jurisdiction, the application of Treaties, as well as diplomatic protection. It extends to its nationals and their actions that occur beyond their territory, and it is based on the understanding that the relationship between State and nationals is a personal one, independent of location.24 Moreover, criminal jurisdiction based on nationality is universally accepted.25 For example, in the Nottebohm case,26 the International Court of Justice referred to the term ‘nationality’ as; 20 ibid (n5).

21 ibid (n4).

22 ibid (n5) 584.

23 ibid. 583.

24ibid (n19) 103.

25 ibid (n5) 588. Ma, p. 111 26 Nottebohm case (second phase), [1955]: I.C. J. Reports 1955, 4.

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Public International Law a legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality, than with that of any other State.27 The Nottebohm case was adjudicated by the International Court of Justice, which sought a ruling to force Guatemala to recognise Friedrich Nottebohm as a Liechtenstein National. However, no genuine link was found, hence, the State could not exercise its jurisdiction.

As discussed earlier in this paper, the principle of active nationality allows a State to prosecute a national who commences or commits a crime anywhere in the world.28 Alternatively, the principle of passive nationality allows the State to claim jurisdiction for crimes committed by alliances against its nationals abroad.29 Passive nationality is viewed as a weak alternative as a basis of jurisdiction, and tends to raise many concerns and debates among States around the world. Yet, in recent years, passive nationality seems to be gaining some acceptability by international communities in the midst of rising concerns around terrorism and other internationally condemned crimes.30 An example, to demonstrate the principle of passive nationality, is the World Trade Centre case in Manhattan New York in 2001, when tens of thousands of persons were caught in a terrorist attack that caused the collapse of the Twin Towers. Active nationality concerns the person who commences or commits a crime, while passive nationality involves the person who falls victim of the crime.

International Law allows a State to exercise jurisdiction either on grounds of active nationality, or on the basis of passive nationality. If the State concerned has no custody of the person concerned, the State will allow trials to be undertaken in absentia, as is customary in Italy. In any case, a person 27 ICJ Reports 1955: 4, 23.

28 Peter Malanczuk, Akehurst’s Modern Introduction of International Law, (Routledge, 2012).11.

111 29 ibid (n4) 302.

30 ibid (n5) 591.

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id-dritt may not be tried twice. The Ne Bis in Idem Principle, in EU Law, restricts the possibility of a defendant to be tried twice on the same crime. This concerns International Human Rights Law. In principle, trials in absentia are prohibited, as in the Maltese courts, however, in practice, a situation may occur where a State changes or alters the accusations of the Bill of Indictment.

The traditional perception of nationality is in transition. It is gradually moving from an exclusive legal bond between individuals and their homeland, to a more globalised interdependent world that results in an increase in dual and multinational citizenships. Today, European Union Citizenship promotes political independence, economic freedoms, and the right of residence anywhere in the EU, without exerting limitations linked with nationality of the Member States.

Indeed, studies suggest that increased membership in the European Union has contributed substantially to a somewhat altered perception, and gradual substitution of key elements of the concept of nationality in Member States. However, whether the assumption of a rapid decline of the concept of nationality is true, and that Union citizenship has partly replaced the nationality of the Member States of the European Union,31 require further discussion and research that fall outside the scope of this paper.

8. Protective Principle The protective principle implies that a State may exercise jurisdiction over any person who commits an act outside the territory of the State, and whose act is universally accepted as an offence prejudicial to the security and interests of the State, irrespective as to whether the person is or is not a national of the State.32 33 The principle is included in the Hostages and Aircraft-hijacking Conventions and the Convention on the Safety of United Nations and Associated Personnel (1994), and is invoked by a State in cases 31 K Hailbronner, ‘Acquisition and loss of nationality, Volume 1: Comparative Analyses - Policies and trends in 15 European States’ in Nationality in Public International Law and European Law, (AUP, 2006).

32 ibid (n4) 302.

33 ibid (n5) 591.

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Public International Law where the committed acts constitute crimes prejudicial to the sovereignty of the State e.g. treason, espionage, and breaking immigration laws.

This principle is often used in treaties providing for multiple jurisdictional grounds e.g. the 1979 International Convention Against the Taking of Hostages.

The protective principle is the secondary basis of jurisdiction. It comes into play when the State exercises jurisdiction of a crime that is neither committed nor received by its own national or on its own territory, however, is considered prejudicial to the protection of the State. A fictitious example would be a situation where Maltese currency is forged in Ethiopia and sold on the black market in Italy. Although the example links no territory or nationality to the crime, Malta may exercise jurisdiction by invoking the Protective Principle, because the case is prejudicial against the fundamental economic and security interests of the Maltese State.

9. Universality Principle The concept of the universality principle may be described as a claim made by a State that pleads jurisdiction over crimes committed outside its territory, or anywhere else in the world, even though the crimes appear to have no connection at all to its territory, its nationality, or even to the State’s special interest. I quote ad verbatim, ‘Today, each State has jurisdiction over any of the international crimes committed by anyone, anywhere that include crimes against peace, crimes against humanity, and terrorism’.34 The basis of jurisdiction is exercised by the gravity of the crime under International Law e.g. the crime of piracy. Pirates are enemies of human rights, hence, any State may exercise international jurisdiction against them. Crimes committed with the intent to destroy or harm humanity, such as genocide, attract universal jurisdiction. For example, Belgium is actively pursuing persons who were instrumental in committing war crimes, even though the crime was not committed on Belgian territory. Under the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the State must 34 ibid (n19) 106.

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id-dritt either extradite the person passing through the territory or proceed with prosecution.

10. Conclusion This study presented a broad-brush overview of the concept of ‘Jurisdiction’ supported by a number of writings published by legal scholars in the field of Public International Law. The discussion was followed with an analysis of two jurisdictional bases, i.e. ‘territory’ and ‘nationality’, and concludes with a brief discussion of the principles of ‘protection’ and ‘universality’, both of which underpin the concept of jurisdiction and jurisdictional situations, currently emerging in the globalisation of Public International Law.

111. 111

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Clive Gerada, Daniel Geey Financial Fair Play (FFP) Regulations – dead in the water?

(Assessed in light of the recent CAS 2020/A/6785

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Clive is a practising lawyer focusing on EU Law. Between 2015 and 2020, Clive was involved in the negotiations of a number of EU legislation in the working groups of energy and transport in the Council of the European Union. He has also chaired the energy working group (Council of the European Union) on behalf of the Maltese Presidency to the EU in 2017 and was involved in the negotiations of the Clean Energy package. Clive graduated as a lawyer from the University of Malta and went on to read a Master’s degree in EU Law at the King’s College London and an M.Sc. in Innovation & Entrepreneurship at HEC Paris Business School. Clive has been developing a keen interest in sports law and the intricacies of the industry. Since 2019, Clive has been a regular attendee at the Football Agent and Business Summit organised by Daniel Geey and Dr Erkut Sogut. This is the first article that Clive has written in relation to Football Law and it is with great pleasure to be doing so with the involvement of Daniel Geey whilst contributing to this long-standing law students journal (Id-Dritt) dating back to 1945. Clive started off as a Publications Officer within the Executive Board of GħSL (Malta Law Student’s Society) and was involved in the compilation of the XXII edition. During his tenure as Secretary General of GħSL, Clive contributed to the regular Radio programme ‘Minn Lenti Legali’ (on the University Radio Station - Campus fm), a series of legal talks with professionals in the Maltese legal sphere. A firm believer that in order to get the full university experience, students should go beyond the lecturing theatres and involve themselves in the vast extracurricular activities at University.

Daniel is a Partner in the Sports Group at Sheridans. Daniel’s practice focuses on helping clients in the sports sector, including rights holders, leagues, governing bodies, clubs, agencies, athletes, sports technology companies, broadcasters and financial institutions. Daniel Geey has over 13 years of experience in the football industry and has worked on a variety of club takeovers in the English Premier League, high profile transfers, commercial endorsement deals and disputes. This includes advising clients (whether individuals or organisations) in legal matters that vary from contractual matters to Financial Fair Play and third-party investment. Daniel Geey has also published a book ‘Done Deal’ which is sought after by professionals working in the world of Football. The book features a wide-variety of topics relating to multi-million pound transfers, player contracts, role of agents (including agent commission fees); Financial Fair Play rules and how broadcasting rights are sold.

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Abstract The author of this article is Clive Gerada whilst Daniel Geey shall contribute to the final part of the article by providing his opinion about the realities of the Financial Fair Play rules in light of the Court of Arbitration of Sports (CAS) decision in Man City vs UEFA.

1. Introduction

W

hen Michel Platini took the helm of UEFA in 2007, he railed against over‑commercialism, ‘ultra‑liberalisme’ (free‑market zeal) and what he called ‘financial doping’1.

As a result, the FFP regulations were specifically introduced by UEFA ‘to prevent clubs that qualify for its competitions from spending beyond their means and stamp out what their president Michael Platini called “financial doping” within football’.2 Following a quick search in the UEFA webpage, Financial Fair Play is explained as follows; 1) ‘How do you explain financial fair play in one sentence?

Financial fair play is about improving the overall financial health of European club football.’3 Platini was not happy with the overspending of football clubs, he argued that this unsustainable spending was ruining the football game4. Throughout the past years we have seen the collapse of top European football clubs such as Glasgow Rangers FC, when in 2012 they suffered financial disaster.

1 David Conn, ‘Just how fair is Michel Platini’s financial fair-play ruling?’ The Guardian (25 May 2011). <https://www.theguardian.com/sport/david-conn-inside-sport-blog/2011/may/25/ financial-fair-play-uefa-michel-platini> accessed 20 September 2020.

2 ‘Financial fair play: All you need to know about how it works’ (BBC Sport, 8 March 2019) <https:// www.bbc.com/sport/football/29361839> accessed 1 October 2020.

3 ‘Financial fair play; all you need to know’ (UEFA, 30 June 2015) <https://www.uefa.com/ news/0253-0d7f34cc6783-5ebf120a4764-1000--financial-fair-play-all-you-need-to-know/?ref errer=%2Fcommunity%2Fnews%2Fnewsid%3D2064391> accessed 1 October 2020.

4 ibid.

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id-dritt At that time, a select committee of the UK House of Commons commented on this case; ‘a powerful example of the excesses of professional clubs in competing with one another, and the consequences for their community when mismanagement leads to financial collapse’.5 We have also seen the repercussions of overspending in the Leeds Utd case back in the early 2000’s. Leeds Utd were the most exciting team in Europe, serious challengers to Manchester United - and even to Real Madrid.

Then the implosion began.6 Leeds United entered into severe financial debt with the aim of challenging at the top of the Premier League and the UEFA Champions league. A financial storm was brewing and in a matter of years the club went into voluntary administration and ended up playing in the lower end of the English football league.

In 2011, UEFA introduced the Financial Fair Player (FFP) Regulations and the purpose of these regulations was to; aim to protect the integrity and smooth running of the UEFA club competitions and to achieve financial fair play in the UEFA club competitions, in particular by improving the economic and financial capability of the clubs, increasing the transparency and credibility of the clubs, protecting creditors, encouraging the clubs to operate on the basis of their own revenues (i.e. to “breakeven”) and protecting the long term viability and sustainability of European football7.

In a nutshell, the FFP rules: limit the amount of debt a club is permitted to have in a particular league or competition by reference to that club’s income[…]They are principally directed at preventing the type of overspending and poor financial management that can (and has) led to some 5 Tom Serby, ‘UEFA’s Financial Fair Play Regulations: the devil is in the detail’ (2014).

6 Brian Cathcart, ‘Money to Burn’ (The Guardian, 7 March 2004) <https://www.theguardian.com/ football/2004/mar/07/sport.features1> accessed 10 October 2020.

7 AC-01/2016 Galatasaray Sportif Sinai ve Ticari Yetrimlar A.S, UEFA Club Financial Control Body 2 March 2016, para. 98; AC-03/2015 FC CSKA AD, para. 42.

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Sports Law clubs becoming insolvent, and the negative consequences of bad debt.8 However, since their inception, these rules have come under heavy criticism. Mainly because this limits the amount of money a club can spend in relation to the revenue of that club. Therefore, with this measure (FFP rules), richer clubs can spend more than poorer clubs; Whereas in the past an investor could invest more in a smaller club to help it compete with a bigger club, FFP limits the amount an investor can invest to catch up, increasing the gulf between the established bigger clubs and those who have not caught up. Clubs like Manchester City and Chelsea were fortunate enough to have wealthy investors help them catch up with the likes of Manchester United, Liverpool and Arsenal before FFP rules properly kicked in, but it will be more difficult in the future, the critics argue, for other clubs to catch up in the same way9.

Following the CAS Panel decision in the MCFC case, some parts of the football world were definitely not happy. Jurgen Klopp, Liverpool’s football manager, described the decision of CAS, to overturn the suspension as ‘not a good day for football’. Jose Mourinho, said that the ruling was a ‘disaster’.10 La Liga chief Javier Tebas, went as far as saying that ‘everyone knows’11 that City have broken the Financial Fair Play regulations.12 On social media, there were a lot of trending tweets on the lines of ‘RIP FFP’.13 8 Nick De Marco, Football and the Law (1st edn, Kindle Edition, Bloomsbury Professional, 2018).

9 ibid.

10 ‘Jurgen Klopp: Overturning Manchester City’s European ban not a good day for football’ (skysports, 15 July 2020) <https://www.skysports.com/football/news/11669/12028368/ jurgen-klopp-overturning-man-citys-european-ban-not-a-good-day-for-football>.

11 Sam Marsden, ‘La Liga’s Javier Tebas: “Everyone knows” Manchester City broke FFP rules’ (ESPN, 15 July 2020) <https://www.espn.com/soccer/uefa-champions-league/story/4137300/ la-liga-boss-javier-tebas-everyone-knows-manchester-city-broke-ffp-rules> accessed 10 October 2020.

12 ‘La Liga president Javier Tebas believes Man City breached FFP rules and says: “CAS is dead” (Independent, 16 July 2020) <https://www.independent.co.uk/sport/football/european/ man-city-uefa-ban-appeal-champions-league-la-liga-javier-tebas-cas-dead-a9621781.html> accessed 10 October 2020.

13 Jamie Smith, ‘Does Financial Fair Play work or is this the end for FFP?’ (Colossus Blog) <https:// www.colossusbets.com/blog/does-financial-fair-play-work/> accessed 10 October 2020.

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id-dritt The looming question is what impact does the CAS panel decision to overturn MCFC’s ban on participation in UEFA club competitions ban, have on the FFP regulations?

In order to answer this question, one would have to first dissect the CAS ruling in the MCFC case and on this basis attempt to provide an answer to the million-dollar question: are FFP regulations dead in the water?

2. Assessment of the CAS Ruling in MCFC v UEFA - July 2020 2.1 Factual Considerations On 2 November 2018, the German Magazine Der Spiegel published an article titled ‘How Oil Money Distorts Global Football’14, alleging that Manchester City Football Club (hereinafter referred to as MCFC) had contravened the UEFA’s Club Licensing and Financial Fair Play Regulations (hereinafter referred to as the CLFFPR). This set the ball rolling and a series of other news articles concerning the same subject matter were published by other media outlets, between 2 November and 16 November 2018.

Following these newspaper publications, Manchester City Football Club were placed under formal investigation by the Investigatory Chamber of UEFA, in accordance with Article 12 (2) of the Procedural rules governing the UEFA Club Financial Control Body.

14 ‘How Oil Money Distorts Global Football’ (SPIEGEL International, 2 November 2018) <https:// www.spiegel.de/international/world/financial-fair-play-manchester-city-and-psg-pact-withthe-sheikhs-a-1236414.html> accessed 15 October 2020.

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3. What is the Club Financial Control Body (CFCB)?

The task15 of the CFCB is to monitor and determine whether the licensors16, licensee applicants17, and licensees18 abide by the UEFA Club Licensing and Financial Fair Play Regulations. Moreover, the CFCB also has the power to impose disciplinary measures in the event of non-fulfilement of the CLFFPR rules and shall decide on the eligibility of clubs to participate and compete in UEFA Club competitions.

Briefly, the CFCB is headed by the CFCB Chairman and is divided into two19:  The Investigatory chamber is tasked with the monitoring and investigation stage of the proceedings; and  The Adjudicatory Chamber is tasked with the judgment stage of the proceedings.

15 Article 3 of the Procedural rules governing the UEFA Club Financial Control Body: The CFCB is competent to: a) determine whether licensors have fulfilled their obligations and whether licence applicants have fulfilled the licensing criteria as defined in the UEFA Club Licensing and Financial Fair Play Regulations at the time the licence was granted; b) determine whether, after the licence has been granted, licensees continue to fulfil the licensing criteria as defined in the UEFA Club Licensing and Financial Fair Play Regulations; c) determine whether, after the licence has been granted, licensees fulfil the club monitoring requirements as defined in the UEFA Club Licensing and Financial Fair Play Regulations; d) impose disciplinary measures as defined in these rules in the event of non-fulfilment of the requirements set out in the UEFA Club Licensing and Financial Fair Play Regulations; e) decide on cases relating to club eligibility for the UEFA club competitions to the extent provided for by the regulations governing the competitions in question.

16 Licensor: a UEFA member association or its affiliated league that operates the UEFA club licensing system at national level, grants licences to enter UEFA club competitions and undertakes certain tasks in respect of the UEFA club monitoring process.

17 Licence applicant: a football club, i.e. legal entity fully and solely responsible for a football team participating in national club competitions, which has applied for a licence to enter UEFA club competitions.

18 Licensee: a licence applicant that has been granted a licence to enter UEFA club competitions.

19 Article 4 of the the Procedural rules governing the UEFA Club Financial Control Body.

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4. The Investigatory Chamber The Investigatory Chamber consists of the CFCB chief investigator and three other members, including the CFCB deputy chief investigator. It is the task of the CFCB chief investigator to lead the monitoring process and the investigations proceedings. An investigation can commence ex officio or upon a request.

Once an investigation is officially opened, the Chief Investigator, shall seek to establish facts and collect all relevant evidence. Evidence may include, but is not limited to, the defendant’s testimony, witness testimonies, documents, records, recordings (audio or video), on-site inspections, and expert reports.

Following the newspaper publications in the MCFC case, the Chief Investigator of the CFCB, wrote to MCFC on 10 December 2018, inviting MCFC’s administration to comment on the veracity of the newspaper articles.

What followed was a series of written exchanges between the Investigatory chamber and MCFC and it was only on 7 March 2019, that the Investigatory Chamber notified MCFC that an investigation was formally opened 20.

The CLFFPR permits the chief investigator, on his own initiative or where appropriate at the request of the defendant, to convene hearings as part of the investigation21. As a result, in the case of MCFC, the Investigatory chamber held hearings on 28 March and on 11 April 2019.22 At the end of the investigation, the Chief Investigator consults with the other members of the Investigatory Chamber and they may decide to either: a) dismiss the case; or b) conclude, with the consent of the defendant, a settlement agreement; or

20 CAS 2020/A/6785 Manchester City FC v UEFA, Court of Arbitration for Sport 13 July 2020, 7 21 Article 13 Procedural rules governing the UEFA Club Financial Control Body.

22 Manchester City FC v UEFA (n 19), 7.

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Sports Law c) apply, with the consent of the defendant, disciplinary measures limited to a warning, a reprimand or a fine up to a maximum amount of €200,000; or d) refer the case to the adjudicatory chamber23.

In the MCFC decision, the chamber decided to go for the fourth option i.e. to formally refer the case to the Adjudicatory Chamber through a referral decision under Article 17 of the Procedural rules governing the UEFA Club Financial Control Body.

5. What is a Referral Decision?

The referral decision shall contain a concise summary of the facts, an outline of the gathered evidence, a description of the nature of the alleged breach/es, a reference to the provision/s alleged to have been breached, and a proposal to the adjudicatory chamber as regards the potential final decision that can be taken, including potential disciplinary measures.

Consequently, on 14 February 2020, the Adjudicatory Chamber decided that; (i) MCFC breached Article 13 (General responsibilities of the licence applicant); Article 43 (declaration in respect of participation in UEFA club competitions), Article 47 (Annual Financial Statements); Article 51 (Written representations prior to the licensing decision); Article 56 (Responsibilities of the licensee); Article 58 (Notion of relevant income and expenses); and Article 62 (Break-even information) of the CLFFPR; (ii) MCFC shall be excluded from participation in UEFA club competitions in the next two seasons (2020/21 and 2021/22 seasons);

23 Article 14, CLFFPR.

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id-dritt (iii) 2020;

MCFC shall pay a fine of Euro 30 million by 13 March

(iv) CFC shall pay Euro 100,000 to UEFA on account of the legal costs incurred by the CFCB, by 13 March 202024.

The only option that was left for MCFC was to appeal the decision of the CFCB (Adjudicatory Chamber) before the Court of Arbitration for Sports (CAS) in Swizterland25.

6. Proceedings before the Court of Arbitration for Sports (CAS) The CAS set out to settle the following important legal questions, namely: a) Did the CFCB (Investigatory and Adjudicatory Chamber) breach its obligations of due process and, if so, what are the consequences thereof? b) Does the conclusion of the Settlement Agreement in 2014 and the release therefrom in 2017 bar UEFA from charging MCFC for the issues at stake in these proceedings? c) Are the charges against MCFC time-barred and, if so, to what extent and what are the consequences thereof? d)

What is the applicable standard of proof?

e) Did MCFC disguise equity funding as sponsorship contributions? f) Did MCFC fail to cooperate with the CFCB’s investigation?

24 Extract of the Adjudicatory Chamber decision as represented in Manchester City FC v UEFA (n 19), 8.

25 Article 34 of the Procedural rules governing the UEFA Club Financial Control Body.

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7. Did the CFCB breach its obligations of due process and, if so, what are the consequences thereof?

MCFC argued that the CFCB breached the principle of due process because the CFCB (Investigatory Chamber) issued the Referral decision without giving MCFC the opportunity to defend the case properly. MCFC also submitted that as a result of several leaked information during and after the Investigatory Chamber proceedings, the process lacked impartiality and caused harm to MCFC. In this regard, MCFC alleged that the source of the leak must have been persons that were involved in the process of the CFCB. For the above reasons, MCFC claimed that this rendered the proceedings before the CFCB null and void.

Contrarily, UEFA argued that even if there had been any procedural flaws during the process before the Investigatory Chamber, these flaws would have been cured by the de novo review of CAS that is established under Article R57 CAS Code; The Panel has full power to review the facts and the law.

It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance. The President of the Panel may request communication of the file of the federation, association or sportsrelated body, whose decision is the subject of the appeal. Upon transfer of the CAS file to the Panel, the President of the Panel shall issue directions in connection with the hearing for the examination of the parties, the witnesses and the experts, as well as for the oral arguments.

After consulting the parties, the Panel may, if it deems itself to be sufficiently well informed, decide not to hold a hearing. At the hearing, the proceedings take place in camera, unless the parties agree otherwise. At the request of a physical person who is party to the proceedings, a public hearing should be held if the matter is of a disciplinary nature. Such request may however be denied in the interest of morals, public order, national security, where the interests of minors or the protection of the private life of the parties so require, where publicity would prejudice the interests of justice, 301

id-dritt where the proceedings are exclusively related to questions of law or where a hearing held in first instance was already public.

The Panel has discretion to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered.

Articles R44.2 and R44.3 shall also apply.

If any of the parties, or any of its witnesses, having been duly summoned, fails to appear, the Panel may nevertheless proceed with the hearing and render an award26.

UEFA also argued that the proceedings before the Adjudicatory chamber were also de novo proceedings, ergo, if for the sake of the argument there was a procedural flaw in the proceedings before the Investigatory Chamber, these flaws would have been cured once the case was referred to the Adjudicatory Chamber. The CAS panel agreed with the submissions laid forward by UEFA and held that the CFCB did not violate the obligations of due proċess: any such breach has in any event been cured by the de novo nature of proceedings before the Adjudicatory Chamber and subsequently by the present appeal arbitration proceedings before the CAS27.

8. Does the conclusion of the Settlement Agreement in 2014 and the release therefrom in 2017 bar UEFA from charging MCFC for the issues at stake in these proceedings?

As mentioned, in the section relating to ‘The Club Financial Control Body’, the CFCB chief investigator, at the end of an investigation after having consulted with other members of the investigatory chamber, may decide

26 Procedural Rules of the CAS - <https://www.tas-cas.org/en/arbitration/code-proceduralrules.html> (Emphasis added).

27 Manchester City FC v UEFA (n 19) para 148 (Emphasis added).

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A settlement agreement may set out obligations, the nature of which could be financial or sporting or both. These obligations would have to be met by the defendant and where necessary, these obligations would have to be satisfied, within a specific time-frame as established in the settlement agreement29. The raison d’être behind settlement agreements relates to the fact that there may be circumstances which justify the conclusion of an effective, equitable, and dissuasive settlement, whereby the defendant is brought in compliance with the UEFA CLFFPR, without referring the case to the CFCB’s Adjudicatory Chamber.

The conditions of a settlement agreement may include, but are not limited to: a) Withholding of revenues from UEFA to a Club; b) Restrictions on registering new players in UEFA competitions and/ or restrictions on the number of players that a club may register for participation in UEFA competitions, including a financial limit on the overall aggregate cost of the employee benefits expenses of players registered on the A-list for the purposes of UEFA club competitions; With such arrangements in place, the CFCB Chief Investigator would have a role to monitor the proper and timely implementation of the settlement agreement and if the defendant defaults in meeting the terms of the settlement, then the chief investigator shall proceed to refer the case to the Adjudicatory Chamber30.

On the contrary, if the defendant/s prove that the obligations in the agreement have been met in advance of the established time frame, then, the CFCB Chief Investigator may, on a reasoned request by the defendant, decide to amend the terms of the settlement agreement for the following sporting season.31 28 Article 14 of the Procedural rules governing the UEFA Club Financial Control Body.

29 Article 15 (2) of the Procedural rules governing the UEFA Club Financial Control Body.

30 Article 15 (4) and (5) of the Procedural rules governing the UEFA Club Financial Control Body.

31 Article 15(3) of the Procedural rules governing the UEFA Club Financial Control Body.

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id-dritt One would think that the CFCB Chief Investigator is omnipotent in this process of handing out settlement agreements and could decide on his own volition to proceed without any checks and balances. However, the procedural rules governing the UEFA CFCB create two instances where the decision of the CFCB Chief Investigator can be reviewed: Firstly, any decision taken by the CFCB Chief Investigator to either dismiss a case, or to conclude, or amend a settlement agreement, or to apply disciplinary measures, within the meaning of Article 14(1)(c), may be reviewed by the Adjudicatory Chamber.32 This happens when the review is triggered by the CFCB Chairman, within ten (10) days from the date of communication of the decision of the CFCB Chief Investigator33.

Secondly, a directly affected party may request the review of any decision taken by the CFCB Chief Investigator concerning the conclusion of a settlement agreement, or to apply disciplinary measures within the meaning of Article 14 (1) (c). This request has to be made within ten (10) days from the date of publication of the CFCB chief investigator decision on the UEFA website.

In both of the above scenarios, the Adjudicatory Chamber has to take a decision on the review within thirty (30) days from the date of communication of the decision to the CFCB chairman.

When deciding, the Adjudicatory Chamber has four options: either (i) uphold; (ii) reject; (iii) modify the decision; or, (iv) refer the case back to the CFCB Chief Investigator34. It should be stressed that the Adjudicatory Chamber is only competent to review decisions of the CFCB Chief Investigator on the basis of whether manifest error of assessment exists or not35. Therefore, one could construe the power of a CFCB Chief Investigator as quasi-judicial.

Going back to the case under examination, MCFC maintianed that all the alleged breaches mentioned by UEFA in the CAS proceedings, were the subject of a ‘Settlement Agreement’ agreed to by both parties in 2014, and thus, it was no longer possible for UEFA to lawfully pursue them. UEFA did not 32 Article 16 (2) of the Procedural rules governing the UEFA Club Financial Control Body.

33 Article 16(2) of the Procedural rules governing the UEFA Club Financial Control Body.

34 Article 16(4) of the Procedural rules governing the UEFA Club Financial Control Body.

35 Article 16(3) of the Procedural rules governing the UEFA Club Financial Control Body.

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Sports Law agree with MCFC submissions because the issues covered in the settlement agreement (2014) did not relate to the alleged breaches mentinoned in the proceedings before the CAS36. Furthermore, MCFC claimed that the Settlement Agreement contained sanctions and subsequently, UEFA could not impose new sanctions for violations that concern the same subject matter.

The CAS Panel found that a Settlement Agreement does not impose sanctions: Rather, the Settlement Agreement is a contract that contains reciprocal undertakings, considerations and concessions on the agreed and expressed “purpose of avoiding the costs, duration and risks arising out of any litigation” as set forth in Clause 2.2 of the Settlement Agreement. The withholding of EUR 20,000,000 in revenues is therefore not a sanction in the strict sense of the word, but part of a contractual arrangement voluntarily entered into by both Parties. Second, the Settlement Agreement only settles the issues settled therein, i.e. it does not encompass issues not settled therein.37 Thus, the CAS Panel decided that the Settlement Agreement of 2014 did not bar UEFA from proceeding against MCFC for the alleged breaches in the present CAS proceedings38.

9. Are the charges against MCFC time-barred and, if so, to what extent and what are the consequences thereof?

Before delving into the time-limitations applicable to the MCFC case, one has to examine closely Article 37 of the CFCB Procedural Rules which states: Prosecution is barred after five years for all breaches of the UEFA Club Licensing and Financial Fair Play Regulations.

36 Manchester City FC v UEFA (n 19) para. 149.

37 ibid para. 161 (Emphasis added).

38 ibid para. 162.

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id-dritt UEFA submitted that the word ‘prosecution’ applies to the Investigatory Chamber. Meaning that one would have to look at the date when the Investigatory Chamber opened the investigation, that is 7 March 2019.

Therefore, UEFA argued that only alleged breaches committed prior to 7 March 2014 were time-barred in accordance with this interpretation.

Conversely, MCFC claimed that the 5-year limitataion period ended on the date of the sanction issued by UEFA CFCB (Adjudicatory Chamber) for the violation of the CLFFPR i.e. on 14 February 2020. Thus, any breaches committed prior to 14 February 2015 were time-barred39.

This means that UEFA’s and MCFC’s position concerning the timelimitation period varied by eleven months and one week. UEFA contended that the CAS panel can go back to acts committed as far as 7 March 2014, whereas MCFC contended that CAS can only go back to acts committed as far as 14 February 201540.

The CAS panel examined carefully the different positions outlined above and decided that ‘prosecution’ commenced with the filing of the charges i.e. when the suspect is formally informed of the case to which the suscpect has to answer.

The majority of the CAS panel did not agree with MCFC’s position that the date of prosecution is the date of the sanction (meaning the date of issuance of the decision of the Adjudicatory Chamber). CAS explained that if the latter was the intention of the drafters of the CFCB procedural rules, they would have explicitly indicated in Article 37 of the CFCB rules that the word prosecution shall mean ‘sanctioning’. Consequently, the word saction could not be considered to be the same as prosecution. Else, MCFC’s line of reasoning would give rise to possible dilatory defence tactics that would unjustifiably bar the CFCB’s power to impose penalties41.

Similarly, the CAS panel could not, however, agree with UEFA’s line of argumentation either. The date of opening the investigation cannot be the correct date for the purposes of the term ‘prosecution’. Someone that is being investigated is not yet being prosecuted. The CAS panel shot down UEFA’s line of reasoning on the basis of the principle ‘ubi lex voluit dixit’. If the drafter’s intention was to include the investigation period as part of the 39 ibid 51.

40 ibid 51, para. 164.

41 ibid 51, para. 168.

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Sports Law definition of prosecution, the drafters would have explicity referred to this wording in the CFCB rules of procedure42; Otherwise the Investigatory Chamber could open an investigation, preserving the Investigatory Chamber’s ability to bring charges for matters going five years back from the opening of the investigation and wait before charging a club under the rules for as long as the Investigatory Chamber wants.43 Eventually, the CAS Panel concluded that the charges were officially issued with the issuance of the Referral Decision of the Investigatory Chamber (15 May 2019) to the Adjudicatory Chamber. This was the document that, ‘explicity and formally served MCFC with the charges filed against it’.44.

The Panel held that the issuance of the referral decision meant two things: (i) the conclusion of the Investigatory chambers investigation on the matter; and (ii) that the matter was passed on to the Adjudicatory Chamber, tasked to adjudicate and decide the case. 45 Therefore, the limitation period of 5 years for the charges brought in the Referral Decision started to run from 15 May 2014. Having established this point, the CAS proceeded to examine the practical consequences of such conclusion.

The alleged breaches that related to the financial statements for the years ending May 2012 and May 2013 were considered as time-barred for the purposes of the proceedings before CAS, whereas the financial statements for the year 2014 were not recognised as time-barred. Similarly, the alleged breaches that related to the break-even information that was submitted by MCFC for the 2014/2015 monitoring process were not time-barred, whilst the break-even information that was submitted by MCFC for the 2013/2014 42 ibid para. 162.

43 ibid para. 169.

44 ibid para. 171 (Emphasis added).

45 ibid.

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id-dritt monitorining process were time-barred46.

An interesting question that arose related to whether MCFC could be prosecuted for ‘actions’ that concerned the resubmission of financial information that was originally reported a year or two before. What counts for the purposes of the time-limitation – (i) the date of when the financial statement of a particular year was submitted or (ii) the date when the financial statement of a particular year was resubmitted?

This issue came to the fore when examining the alleged disguised equity funding received by MCFC through Etisalat; The amounts at issue were transferred to MCFC on 13 June 2012 and 10 January 2013, i.e. outside the five-year limitation period.

If it were true that these amounts did not comprise sponsorship payments but were in fact disguised equity funding, the financial information provided by MCFC in its financial statement for the year ended May 2013 and the break-even information for the 2013/14 monitorining process was incorrect and could have subjected MCFC to prosecution on this basis.

Notwithstanding that the financial statements for the year ended May 2014 were filed within the limitation period, the comparative information contained in such statements related to the year ended May 2013. Therefore, according to the majority of the Panel, these statements cannot form a basis for prosecution given that these were filed outside the limitation period – thus timebarred. Similarly the break-even information for the 2014/2015 monitoring process was filed within the limitation period however, the information related to T-1 and T-2, ergo cannot form a basis for prosecution.47 On this basis the alleged disguised equity funding by HHMS and/or ADUG through Etisalat were time-barred given that these payments were received by MCFC on 13 June 2012 and 10 January 2013 and was therefore firstly reported in the financial statements of the year ending May 2013 and 46 ibid para. 182.

47 ibid para. 193 and para. 194.

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Sports Law for the 2013/2014 monitorining process48.

With respect to the alleged disguised equity funding through Etihad, it is alleged that this took place in the seasons of 2012/2013, 2013/2014 and 2015/2016. On the basis of the aformentioned, payments received by MCFC in the season of 2012/2013 were regarded as time-barred. However, MCFC may be prosecuted for any alleged wrongdoing with respect to payments received by MCFC from Eithad in the seasons of 2013/2014 and of 2015/201649.

10.What is the applicable standard of proof?

The Panel and the parties agreed that the standard of proof is that of comfortable satisfaction. Meaning that the seriousness of UEFA’s allegations does not increase such standard of proof to beyond reasonable doubt: The Panel adheres to the reasoning of the CAS panel in CAS 2017/A/5379 set forth above, and that, considering the particularly severe nature of the allegations in the present proceedings, the evidence supporting such allegation must be particularly cogent.50

11. Did MCFC disguise equity funding as sponsorhsip contributions?

On this point, UEFA based their case on a number of leaked emails that were published in the newspapers. These leaked emails were emails exchanged at executive and board level of MCFC describing an equity funding arrangement from ‘HHSM’ and/or ‘ADUG’ (as represented by Mr 48 ibid para. 196-197.

49 ibid para. 198.

50 ibid para 208 (Emphasis added).

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id-dritt Pearce) that would be disguised as sponsorship contributions from Etihad.

For the purposes of the CLFFPR this equity funding would have significantly inflated MCFC’s relevant income. UEFA’s Adjudicatory Chamber in its Appealed Decision held that; the leaked emails provide direct evidence of arragements made between the Club and ADUG, represented by Simon Pearce.

This is not an inferential case or case based on circumstantial evidence. The effect of the documents is clear in setting out the arrangements under consideration by the Club and Mr Pearce.

Given the seniority of the persons involved in the emails, and the absence of any evidence produced for the Club to show that the arrangements under discussion were later abandonded or substantially changed, they are direct evidence of the arragements made and implemented by ADUG and the Club, and of an intention to make payments on that basis.51 CAS Panel did not agree with the reasoning of the adjudicatory chamber.

Firstly, MCFC were not charged by UEFA for attempting to disguise equity funding as sponsorship contributions but for erroneous reporting of financial information. The latter requires a completed act.

Therefore, UEFA had to prove two things: (i) that the arrangements mentioned in the leaked emails were truly an arranagement of sorts and (ii) the same arrangement to disguise equity funding as sponsorship was executed; The arrangements discussed must be rooted in contemporaneous accounting or transaction evidence, for otherwise it cannot be ascertained that the arrangements discussed in the Leaked Emails were in fact executed.52 UEFA’s theory on disguised equity funding can be illustrated in the figure below: 51 Reasoning of the Adjudicatory Chamber in the Appealed Decision Manchester City FC v UEFA (n 19) para. 214.

52 Manchester City FC v UEFA (n 19) para. 216.

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The CAS panel held that from the evidence brought forward it was not comfortably satisfied that the arrangements mentioned in the leaked emails were in fact executed; There is no sufficient evidence on file to establish that arrangements were actually made between MCFC and HHSM and/or ADUG or between HHSM and/or ADUG and Etihad or that HHSM and/or ADUG funded part of Etihad’s sponsorship obligations directly.53 Furthermore, the Panel also held that based on the evidence, it was not satisfied that the sponsorhip contributions paid by Etihad to MCFC were procured to be funded by ‘HHSM’ and/or ‘ADUG’ through unidentified third parties; The theoretical possibility that this may have happened can certainly not be excluded, but that is not the standard to be applied.

Rather, it is for UEFA to establish to the Panel’s comfortable 53 ibid para. 291.

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id-dritt satisfaction that HHSM and/or ADUG indeed routed funds to Etihad through third parties, and the Panel finds that UEFA did not satisfy this burden.54 Therefore, in accordance to the above considerations, the Panel found that UEFA’s theory that MCFC had disguised equity funding remained unsubstantiated55. In fact, Mr Lindsay (expert witness) testified that he was not satisfied with the information provided and could not exclude that disguised equity funding via sponsorships had taken place; No, I’m not satisfied with what I’ve been shown, because I feel I’ve been shown in essence the tip of the iceberg. So we’ve been talking about, for example, the payment that was made by --- that was caused to be made by ADUG to the Club in respect of Etihad. Well, one of the problems why we’re grappling with these issues is because we haven’t been provided with any of the contemporaneous email traffic and other documents that put these transactions into context56.

Given that the burden of proof rests with UEFA and the latter did not succeed in satisfying that burden, then the Panel had no choice but to dismiss the allegations.

12. Can one apply adverse inferences from MCFC’s noncooperation with CFCB’s investigation?

If one had to examine closely the IBA57 rules on the taking of evidence in International Arbitration (edition 2010), specifically, Articles 9(5) and (6), the concept of adverse inferences is well alive and kicking: If a party fails without satisfactory explanation to produce any Document requested in a Request to Produce to which it has not objected in due time or fails to produce any Document ordered to be produced by the Arbitral Tribunal, the Arbitral Tribunal may 54 ibid para. 292.

55 ibid para. 291.

56 ibid para. 270.

57 International Bar Association.

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Sports Law infer that such document would be adverse to the interests of that Party.

If a party fails without satisfactory explanation to make available any other relevant evidence, including testimony, sought by one Party to which the Party to whom the request was addressed has not objected in due time or fails to make available any evidence, including testimony, ordered by the Arbitral Tribunal to be produced, the Arbitral Tribunal may infer that such evidence would be adverse to the interests of that Party.

According to Article 56 of the CLFFPR, it is the duty of football clubs to cooperate with UEFA in providing evidence to the latter about any possible violations of the CLFFPR the clubs might have committed. In spite of this obligation to cooperate, it is definitely ‘less straight forward’58 as to what extent football clubs can be required to produce accounting evidence from its sponsors to UEFA. It happens that the CLFFPR does not help its cause in obliging clubs to cooperate, as it fails to expressly require for an official independent audit of sponsors of clubs. Nevertheless, this requirement is also not as plain sailing as it might appear to be, given that sponsors of clubs are third parties and some of the times are major publicly listed international companies that might have justifiable reasons not to be forthcoming towards investigations

by UEFA into alleged CLFFPR violations59.

Essentially, for the tribunal to accept that adverse inferences can be drawn, evidence must have been requested by the opposing party or ordered directly by the tribunal. In the case under examination, UEFA made four separate requests to MCFC for the production of documents, to which MCFC only partially complied. The key issue is that UEFA failed to pursue further its requests to be provided with the remaining evidence, and on this basis, the CAS panel concluded that: As a consequence, since UEFA did not pursue its request to be provided with the runs of emails of which the Leaked Emails formed part, the majority of the Panel finds that no adverse 58 Manchester City FC v UEFA (n 19) para. 277.

59 ibid.

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id-dritt inferences can be drawn from the fact that MCFC did not provide such information.60

13. Did MCFC fail to cooperate with the CFCB’s investigation?

UEFA alleged that on three separate occasions MCFC failed to cooperate with the CFCB’s investigation. The Panel held that MCFC had failed to provide UEFA with a complete thread of emails of which the leaked emails formed part. In addition, MCFC failed to clarify certain details in the leaked emails and failed to provide the original versions of the leaked emails to the CFCB investigation.

Moreover, the Adjudicatory Chamber held that MCFC’s ‘refusal to provide any other emails and information requested’ was tantamount and ‘designed to obstruct the investigation’.

The CAS Panel held that the evidence requested by the CFCB Chief Investigator was not produced by MCFC during the proceedings, but was eventually provided during the proceedings before the CAS. In this regard, the de novo principle does not extinguish or repair this failure, for the simple reason that: allowing clubs to hold onto relevant evidence until the proceedings before CAS would seriously risk turning the proceedings before the CFCB into a farce and would render the entire CFCB process very inefficient. This cannot be tolerated or endorsed.61 On this line of argumentation the CAS panel found that MCFC had failed to cooperate with CFCB’s investigation and breached Article 56 of the CLFFPR, as expounded in the following instances: i.

The CFCB Chief Investigator requested MCFC to bring in two specific witnesses (Mr Simon Pearce and Mr Andrew Widdowson) to a hearing scheduled before the Investigatory 60 ibid para. 283 (Emphasis added).

61 ibid para 316.

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Sports Law Chamber on 11 April 2019. MCFC did not comply with this request and waited until one year later in the present arbitration proceedings to summon these two persons to provide evidence.

These two persons were essential to the investigation as they authored the leaked emails.62 ii.

The CFCB Chief Investigator requested MCFC to provide the complete and accurate copies of the leaked emails.

MCFC only partially complied with this request a year later during the appeal arbitration proceedings before CAS. 63 iii.

The CFCB Investigatory chamber had requested MCFC to divulge information about the identity of ‘Mohamed’ as referred to in Leaked Email No. 2, but to no avail. 64

14. The appropriate sanction that was imposed CAS on MCFC for its failure to cooperate with the CFCB’s investigations?

The reason behind Article 56 of the CLFFPR is to oblige Football Clubs to cooperate with UEFA investigations: the entire FFP system depends for its effectiveness on complete and accurate reporting by clubs of their football income and expenses. If clubs do not truthfully disclose such information, the system cannot work.65 Having found that MCFC’s failure to cooperate with the CFCB’s investigation is a severe breach which mandates serious reprehension for obstructing CFCB’s investigations, the remaining issue that concerned the CAS Panel, referred to ‘what might be a proportionate sanction?’66

62 ibid para. 317.

63 ibid para. 319.

64 ibid para. 318.

65 ibid para. 327.

66 ibid para. 332.

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id-dritt At first instance, the Ajudicatory Chamber of UEFA had imposed the following sanction:  Two-year ban from participation in UEFA’s club competitions; and 

Fine of €30 million;

However, the Adjudicatory Chamber did not specify to what extent these sanctions related to the alleged disguised equity funding on the one hand and on MCFC’s failure to cooperate with the CFCB’s investigations on the other hand. 67 It is obvious that the charges relating to disguised equity funding are far more serious than obstructing the CFCB’s investigations. Given that the CAS panel did not find MCFC guilty of disgused equity funding, the Panel did not consider the ban on participation in UEFA’s club competitions as proportionate to MCFC’s failure to cooperate with CFCB’s investigations.

Moreover, with respect to the pecunicary fine of EUR 30 million, the CAS panel held that; considering i) the financial resources of MCFC; ii) the importance of the cooperation of clubs in investigations conducted by the CFCB, because of its limited investigative means; and iii) MCFC’s blatant disregard of such principle and its obstruction of the investigations, the majority of the Panel finds that a significant fine is to be imposed on MCFC and considers it appropriate to reduce UEFA’s fine by 2/3, i.e. to the amount of EUR 10,000,000.68 MCFC also put forward the argument that, in imposing the sanctions, the CAS Panel should take into account the current COVID-19 pandemic and the impact the pandemic had on the coffers of MCFC as a result of empty stadiums. Without too much hesitation the CAS Panel threw this argument out of the window by saying;

67 ibid para. 333.

68 ibid para. 335.

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Sports Law Although the landscape for football clubs has altered since the issuance of the Appealed Decision, MCFC does not argue that it is in a dire financial situation because of the pandemic. The Panel finds that the imposition of a fine lower than EUR 10,000 would not be a sufficiently strong deterrent and that MCFC’s failure to cooperate with CFCB investigation is to be strongly condemned.69 MCFC were also ordered to pay the amount of EUR 100,000 as a compensation for the CFCB’s legal costs.

15. What does this Arbitral Award tell us about the FFP rules?

In this concluding part of the article, Mr Daniel Geey one of the leading Sports lawyers in the UK, who was involved in numerous transfer negotiations of players and club takeovers in the English Premier League, sheds light about the impact the CAS decision, in the MCFC case, might have on the current FFP rules.

This part shall take the form of a question and answer with Mr Daniel Geey.

Q. The FFP rules were introduced by UEFA to stamp out what President Platini called ‘financial doping’ within football. Do you think this objective has been achieved?

Daniel Geey: It ultimately depends how you frame success.

The headline figures of massively reduced losses for clubs competing in UEFA competition is significant. It has led to systemic behavioural changes at club level.

69 ibid para. 337 (Emphasis added).

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id-dritt Q. We have seen how CAS overturned UEFA decisions relating to high profile appeal cases concerning FFP rules. For example, in the case of PSG and AC Milan. All of these cases were turned down by CAS on technicalities.

This situation has happened again in the MCFC decision. Do you think that the FFP rules should be revised? Some proponents say that UEFA should go back to the drawing board. Do you agree with this approach?

Daniel Geey: It may well be that UEFA looks again at particular parts of their regulations perhaps in relation to, for example, limitation periods to provide greater flexibility. I am not sure the outcome of one or two decisions means a complete redraft and overhaul of the regulations but at the same time, UEFA will want to ensure it has the necessary regulatory framework to ensure club compliance with the regulations.

Q. In the CAS ruling, MCFC were found to be in breach of Article 56 of the FFP rules ‘responsibilities of licensee’. Do you think cooperation between clubs & UEFA should be of a higher standard? Together with heftier penalties in case of non-cooperation?

Daniel Geey: In the case of Manchester City, a huge fine was imposed for non-compliance. Unless more prescriptive sanctioning guidelines are put in place to cover specific behavioural circumstances, UEFA and CAS will continue to have sanctioning flexibility. The question is whether non-cooperation in isolation should lead to more substantive sanctions than a monetary fine. That will be very much case-dependent.

Q. What do you think about the breakeven model of the FFP Rules? Do you think that as a result of the Man City ruling this will impact the amount of money premier league newcomers (such as Leeds United) would be able to spend more money, given that such clubs haven’t been regular beneficiaries?

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Sports Law Daniel Geey: Ultimately, we are framing different cost control rules. The EPL’s Profitability and Sustainability Rules provide greater flexibility for clubs in the EPL (losses can reach £105m with secured funding obligations). Should Leeds for example have aspirations to play in UEFA competition in future years, they will need to comply with the (narrower) FFP regulations on a rolling three year basis. The ultimate priority will be staying in the EPL for most clubs but the City decision has relatively narrow applicability for influencing other club spending because of the specific factual background of the case.

16. Conclusion The MCFC decision was not well taken in the football world, especially when CAS overturned MCFC’s participation ban of 2 years in UEFA Club competitions. However, as we have seen from the above indepth analysis of the CAS decision, there is no urgent need to scrap the FFP rules and go back to the drawing board, as some football proponents have said.

Daniel Geey argued that the FFP rules have done their job in so far as shifting behavioural changes within the administration of football clubs and have also prevented football clubs from engaging in unsustainable heavy spending.

Of course, there is always work to be done when it comes down to the enforcement of FFP rules, and given that UEFA depends a lot on the cooperation of Clubs, perhaps one could consider beefing up UEFA’s investigatory powers whilst seeking to improve the limitation periods within which certain actions become time-barred. Ideally, the periods would be extended to provide greater flexibility to UEFA’s investigatory chambers and in turn avoid or limit situations whereby potential breaches would end-up being time-barred.

For years and till this very day, the FFP rules are far from popular. Some football clubs argue that the FFP rules were specifically tailored to halt football teams, with new injection of capital, from entering the European crème de la crème. Notwithstanding that such a claim might be true, one cannot not 319

id-dritt notice the effect of the FFP rules and the significant improvements that have been made in ensuring that football clubs remain financially healthy.

During an interview to the BBC, Giovanni Infantino had said that: Financial Fair Play has proved successful in achieving considerable improvement in the financial health of European football’70 If one had to zoom in the period 2011 and 2014, aggregate net losses of Europe’s clubs have fallen from 1.7bn euros in 2011 to 400m euros in 2014.71 Although proponents of the claim that FFP rules are dead in the water might have valid arguments, given that punishments against clubs have been scaled back or suspensions overturned, one cannot deny the fact that net losses of football clubs have significantly decreased, and football clubs in Europe are nowadays carrying less debt when compared to pre-FFP days.

70 Matt Slater, ‘Michel Platini: Uefa to “ease” financial fair play rules’ (BBC Sport, 18 May 2015) <https://www.bbc.com/sport/football/32784375#:~:text=The%20guiding%20principle%20 of%20FFP,%22break%2Deven%20requirement%22> accessed 20 September 2020.

71 ibid.

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Technology Law

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Kevin Aquilina Technology Law’s Link to Constitutional Law: A Public Law Perspective

Kevin Aquilina is the Head of the Department of Media, Communications and Technology Law of the University of Malta. He holds a Doctorate of Philosophy in Law (Ph.D.) from the London School of Economics and Political Science of the University of London, a Doctorate in Law from the University of Malta (LL.D.) and a Masters in International Maritime Law from the International Maritime Organisation’s International Maritime Law Institute (LL.M.).

Professor Aquilina has held the office of Director General (Courts) and subsequently Chief Executive of the Broadcasting Authority. He drafted all broadcasting legislation between 1999 to 2013. Between 2011 and 2019, he was the Dean of the Faculty of Laws at the University of Malta.

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id-dritt

1. Introduction

T

he purpose of this paper is to discuss the relationship between Technology Law and Constitutional Law. Both Technology Law and Constitutional Law are classified under the heading of Public Law (as opposed to Private Law) though, as will be seen below in Section 1.5 of this paper, Technology Law has also a Private Law dimension. It is a daunting task for this author to write about technology – ‘a rich and multi-faceted concept which does not admit of simple definition’1 – due to its complexity and pervasiveness in the law. More intricate is the study of Technology Law in relation to Public Law (and its sub-divisions) and Private Law, especially Intellectual Property Law. Hence, this paper adopts a sectoral approach to the discussion of Technology Law from the perspective of Public Law.

1.1 Public Law v. Private Law Generally speaking, law can be divided into two main branches: Public Law and Private Law. The Roman jurist Ulpian writes in his Institutes that: ‘Of this subject [i.e. law] there are two departments, public law and private law’.

Public law is that which regards the constitution of the Roman state, private law looks at the interest of individuals. 2 Public law is that branch of the law where the state has a crucial function to play as it regulates the relationship between state organs, institutions and offices inter se and between these same organs, institutions, and offices, on the one hand, and persons – whether physical or legal – on the other. It is the dual relationship that is at the core of Public Law. In this respect, the State has a pivotal role to play in Public Law. The term ‘State’ as used in this paper is being given an extensive meaning to encompass the public administration in all its entirety, including – but not limited to: 1. the three organs of the State (Legislative; Executive; Judiciary); 1 Michael Blakeney, Legal Aspects of the Transfer of Technology to Developing Countries (1st edn, ESC Publishing Limited 1989) 1.

2 Charles Henry Monro, The Digest of Justinian, Volume 1 (1st edn, Cambridge University Press 1904) 1.

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Technology Law 2. local self-government; 3. public corporations; 4. the various State services (civil service; diplomatic service; military service; parliamentary service; and security service); 5. disciplined forces (members of the Armed Forces of Malta; members of the Malta Police, Rescue and Assistance Force; Civil Protection Officers; and Corradino Correctional Facility Prison Officers)3; 6. government foundations; 7. government companies; 8. government boards, committees, councils, commissions, and panels; and 9. public offices, whether titular or non-titular.

Further, the State has a twofold function: it acts jure imperii and jure gestionis (or administrationis). In the former case, the State is exercising its imperium. In the latter case, the State is exercising those same rights and duties as persons do. In Public Law, particularly in Public International Law (though no longer in Administrative Law), the State therefore enjoys a privileged position which it does not always necessarily enjoy in Private Law. Private Law is sub-divided into Civil Law (Family Law and the Law of Property) and Commercial Law. When the relationship is primarily between private persons – whether legal (or corporate or moral) or physical (or natural or biological) persons – and concerns rights enjoyed by the said private persons, the matter would be classified under Private Law as is the case with Civil Law (both Family Law and Property Law) and Commercial Law.

3 Customs Officers, like Court Marshals – both uniformed personnel – do not fall under this category as the Customs Ordinance, Chapter 37 of the Laws of Malta, and the Code of Organization and Civil Procedure, Chapter 12 of the Laws of Malta, are silent on this matter.

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id-dritt 1.2 Definition of Public Law Public Law has been defined by Black’s Law Dictionary as: The body of law dealing with the relations between private individuals and the government, and with the structure and operation of the government itself; constitutional law, criminal law, and administrative law taken together [...]. 4 It is contrasted, as above, to Private Law, the latter being: ‘The body of law dealing with private persons and their property and relationships’.5 Redmond and Shears define it as: that part of the law which governs the relations of citizens with the state and of one state with another (public international law).

Public law thus includes criminal law, constitutional law and international law.6

1.3 Public Law does not Exclude Private Law (or vice-versa) Although law is generally divided into Public Law and Private Law, an act or omission may have both Public Law and Private Law repercussions.7 For example, when technology is used carelessly – such as when driving a car under the influence of alcohol, the driver can hit and injure a pedestrian.

From that act – driving negligently – two legal consequences emerge: a Public Law action8 and a Civil Law action.

4 Bryan A. Garner (ed.), Black’s Law Dictionary (8th edn, Thomson West 2004) 1267.

5 ibid 1234.

6 P. W. D. Redmond and Peter Shears, General Principles of English Law (7th edn, Pitman Publishing 1993) 4.

7 Section 3(1) of the Criminal Code, Chapter 9 of the Laws of Malta, provides that: ‘Every offence gives rise to a criminal action and a civil action’.

8 The Criminal Code states in Section 4(1) that: ‘The criminal action is essentially a public action and is vested in the State and is prosecuted in the name of the Republic of Malta, through the Executive Police or the Attorney General, as the case may be, according to law’.

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Technology Law In the former case, the Police accuse the driver in court for negligent driving and injuring a pedestrian; and in the latter case, the pedestrian may sue the driver in a court of civil jurisdiction for the injury sustained through the negligent injury to recover the damages in question.

1.4 Concrete Public Law Manifestations of Technology Law As to Public Law, the state is involved in Technology Law, for instance, through, a regulator such as the Broadcasting Authority which regulates broadcasting, the Malta Communications Authority which regulates communications, and the Malta Digital Innovation Authority which regulates distributed ledger technology (DLT).

1.5 Commercial Law and Technology Law Technology has also a Private Law dimension. For instance, in Commercial Law, under the heading of Intellectual Property Law, four of its subheadings – Patents Law, Designs Law, Trademarks Law and Copyright Law – all relate in one way or another to technology.

1.5.1 Patents Law According to Lionel Bently and Brad Sherman, a patent: is a limited monopoly that is granted in return for the disclosure of technical information [...] The state (in the guise of the patent office) issues the applicant with a patent that gives them the exclusive right to control the way in which their patented invention is exploited for a 20-year period.9

9 Lionel Bently and Brad Sherman, Intellectual Property Law (4th edn, Oxford University Press 2014) 375.

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id-dritt Article 2 of the Patents and Designs Act10 defines patent as, ‘the exclusive right granted by the Comptroller in terms of the provisions of this Act’. Article 4 then lists the inventions which are new, involve an inventive step, and are susceptible of industrial applications which are patentable and those which are not.

1.5.2 Design Law A design: is concerned with the nature and appearance of objects, one of the notable aspects of designing is that the results are readily copied. Not surprisingly, therefore, intellectual property protection plays an important role in regulating the creation and use of designs [...] technological developments such as the photocopier, tape recorder, video recorder, and digital technologies – [have] changed both where copying occurred and who did the copying ...11 The Hargreaves Report stated that: Digital technology is altering the nature of design. It has radically altered the way in which many designs are produced, and the development of fabrication through 3D printing can be expected to have a substantial impact.12 Section 63 of the Patents and Designs Act13 defines a design as, ‘the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and, or materials of the product itself and, or its ornamentation’.

10 Patents and Designs Act, Chapter 417 of the Laws of Malta.

11 Vide supra note 9, 683-684.

12 ibid 684.

13 Patents and Designs Act, Chapter 417 of the Laws of Malta.

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Technology Law 1.5.3 Trademarks Law Finally, trademarks originated when ‘traders applied marks to their goods to indicate ownership. These are called “proprietary” or “possessory” marks’.14 In terms of Article 4(1) of the Trademarks Act,15 a ‘registered trademark is a property right obtained by the registration of the trademark under this Act. The proprietor of a registered trademark has the rights and remedies provided by this Act’. In terms of Article 4(2) thereof: A trademark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of: (a) distinguishing the goods or services of one undertaking from those of other undertakings; and (b) being represented on the register in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor.

Article 5 then lists those trademarks which cannot be registered.

I will refrain from delving into Private Law technological issues in this paper and instead restrict myself only to the (Public) Constitutional Law aspects of technology.

14 Vide supra note 9, 809.

15 Trademarks Act, Chapter 597 of the Laws of Malta.

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id-dritt 1.5.4 Copyright Law Lionel Bently and Brad Sherman opine that copyright, ‘ ’.16 The Copyright Act17 extends inter alia to audiovisual works, broadcasting, cable retransmissions, communication to the public by satellite, computer programmes, databases, sound recordings, rebroadcasting, reproductions and technological measures. All these technologies are protected by copyright law. There is a specific subsidiary law which exempts the use of technology by the blind, visually impaired and print-disabled persons from copyright law.18

2. What is Constitutional Law? In the absence of a legal definition of Constitutional Law in the Maltese Statute Book, reference will have to be had to the writings of diverse jurists who have attempted a definition. Worse still, there is no law in Malta which classifies laws under distinct headings in terms of their respective area or branch of the law.19 Hence, there can be a law which makes both constitutional and non-constitutional provision. Such is the case of the Members of Parliament (Public Employment) Act which contains both Constitutional Law and Employment Law provisions, both branches of the law falling under Public Law. There are also laws which are purely of a constitutional nature. The Constitution is the example par excellence. The Maltese Citizenship Act is another case in point.

16 Vide supra note 9, 31.

17 Copyright Act, Chapter 415 of the Laws of Malta.

18 Permitted Use of Certain Works and Other Subject Matter Protected by Copyright and Related Rights for the Benefit of Persons who are Blind, Visually Impaired or Otherwise Print-Disabled Order, Subsidiary Legislation 460.36.

19 For an attempt in this respect, see Kevin Aquilina, Drafting a Code of Administrative Law for Malta, Papers Commissioned by the House of Representatives Select Committee on Recodification and Consolidation of Laws, House of Representatives, Valletta, 27 April 2010, 9 June 2010 and 16 June 2010.

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Technology Law The logical question which thus arises at this juncture is how does one identify a law of a constitutional nature from other non-constitutional laws?

In so far as the Constitution is concerned, it distinguishes itself from ordinary primary legislation in the manner that amendments to the Constitution are passed. It is, therefore, this special qualified majority which differentiates amendments to the Constitution from amendments to other primary constitutional laws which only require a simple majority vote to be passed in the House of Representatives. Nonetheless, there are several constitutional laws which are passed by the said House following a simple majority vote and are therefore not entrenched in terms of Article 66 of the Constitution.

The ensuing difficulty which arises is how are these ordinary primary laws distinguished from other non-constitutional ordinary primary laws? One way of achieving such a purpose is by identifying the characteristics of Maltese Constitutional Law.

2.1 Characteristics of Maltese Constitutional Law A characteristic of Maltese Constitutional Law is that it establishes the principal organs of the State (the Legislature; the Executive and the Judiciary) and other State institutions (both in terms of bodies and offices).

It defines their functions, powers, duties, and procedure, and, in so far as persons occupying high office, their appointment, renewal (where allowed by law), discipline, resignation and removal. Constitutional Law also regulates the relationship inter se between these State organs, institutions and offices as well as their relationship with citizens. Constitutional Law governs the elections for a democratically elected legislature and makes provision for the granting and withdrawal of citizenship. It is Constitutional Law which bestows upon persons – both legal and physical – human rights and fundamental freedoms and proclaims the rights and duties of these persons vis-à-vis State organs, institutions and officers of the State as well as the rights and duties of State organs, institutions and officers of the State vis-à-vis these persons. Constitutional Law also sets out the applicable rules related to government finance, the public service, local self-government, judicial review of legislation, and serves to supplement the provisions of the fundamental law, the Constitution.

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3. What is a Constitution?

No law obtained in Malta defines a constitution. Foreign jurists have attempted a definition. For instance, Ian Loveland sums up the writings of other jurists on this point as follows: Colin Turpin suggests that the constitution is ‘a body of rules, conventions and practices which regulate or qualify the organisation and operation of government in the United Kingdom’; de Smith’s classic introductory text regards the constitution as ‘a central, but not the sole feature, of the rules regulating the system of government’. A longer version is offered by Vernon Bogdanor, for whom the constitution is: ‘a code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government and defines the relationship between these and the public’.

A working definition which this author favours is that provided by Owen Hood Phillips, Paul Jackson and Patricia Leopold. It reads as follows: The word ‘constitution’ is used in two different senses, the abstract and the concrete. The Constitution of a state in the abstract sense is the system of laws, customs and conventions which define the composition and powers of organs of the state, and regulate the relations of the various state organs to one another and to the private citizen. A ‘constitution’ in the concrete sense is the document in which the most important laws of the constitution are authoritatively ordained. A country, such as our own [the United Kingdom], which has no ‘written’ constitution [...], has no constitution in the concrete sense of the word. It should be clear from the context which meaning is being employed. 20

20 Paul Jackson and Patricia Leopold, O’Hood Phillips and Jackson: Constitutional and Administrative Law (8th edn, Sweet & Maxwell 2001) 5.

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4. What is Technology?

Constitutional Law is not defined by law. Nor is Technology Law: there is no definition in Maltese Law as to what is technology or Technology Law. The Concise Oxford English Dictionary defines ‘technology’ as ‘the application of scientific knowledge for practical purposes > machinery and equipment based on knowledge > the branch of knowledge concerned with applied sciences.’21 Essentially, technology is the system of tools and techniques that humanity uses for its needs. Of course, technology can be divided into various branches such as: 1. biotechnology; 2. information and communications technology; 3. autonomous technology; 4. nuclear technology; 5. mechanical technology; 6. electrical technology; 7. assistive technology; 8. instructional technology; 9. medical technology; 10. productivity technology; 11. chemical technology; 12. space technology; 13. alternative energy technology; 21 Catherine Soanes and Angus Stevenson, Concise Oxford English Dictionary (11th edn, Oxford University Press 2005) 1479.

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id-dritt 14. forensic technology; 15. climate changing technology; 16. financial technology (Fintech); 17. blockchain technology; 18. nanotechnology; 19. de-inking technology; 20. solidification technology; 21. nutrition technology; 22. best available technology etc.

Two or more of the same technologies can also be classified under different headings as well. For instance, a space shuttle can be classified under electrical, mechanical, and ICT technologies.

Technology has been with us since time immemorial, probably since the advent of humanity on the planet Earth. Museums depict the history of technology as it has evolved from the Stone Age to modern times. In the Stone Age the first tools were produced, such as a sharpened stone to be used as a knife. Bronze – a mixture of copper and tin – was invented for producing implements and weapons. Iron, the steam engine, various forms of machines, and steel all developed over time until we reached the new technologies with which we are accustomed today in the realm of information and communication technology.

Perhaps a workable definition of technology is that afforded by the Licencing Guide for Developing Countries developed by the World Intellectual Property Organization: ‘Technology’ means systematic knowledge for the manufacture of a product, the application of a process or the rendering of a service, whether that knowledge be reflected in an invention, 334

Technology Law an industrial design, a utility model, or a new plant variety, or in technical information or skills, or in the services and assistance provided by experts for the design, installation, operation, or maintenance of an industrial plant or for the management of an industrial or commercial enterprise or its activities. 22

5. What is Technology Law? The law which regulates all the above listed types of technologies is Technology Law. It does so in various forms, in that it can: 1. define the technology; 2. explain the nature of the rights held in technology; 3. define innovation, invention, and novelty; 4. establish standards to be complied with in the production of technology; 5. exclude tools which would not fall under the definition of technology; 6. distinguish between different forms of technology falling within the same class or different classes; 7. expand upon the defences which can be pleaded so as not to be found in breach of technology law; 8. create rules governing the commercial exploitation and use of technology, and regulate the modes, limits and exceptions to exploitation of those rights;

22 World Intellectual Property Organization (WIPO), Licensing Guide for Developing Countries: A Guide on the Legal Aspects of the Negotiation and Preparation of Industrial Property Licences and Technology Transfer Agreements Appropriate to the Needs of Developing Countries (WIPO, Geneva 1977) 28. See also Michael Blakeney, note 1, 1, for other definitions of technology.

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id-dritt 9. adopt technological protection measures so that proprietary technology cannot be replicated without the owner’s consent; 10. constitute collecting societies through the law to ensure commercial exploitation of technology; 11. penalise the criminal abuse of technology whether the crime is committed in Malta or abroad; 12. regulate the persons who in some way or another are responsible for that technology such as in its production, use, and any intermediaries involved; 13. establish civil liability for harm occasioned through improper use of technology; 14. apply and extend Technology Law to other fields of the law such as Human Rights Law, Administrative Law, Constitutional Law, Criminal Law, Civil Law, Intellectual Property Law, etc.; 15. entrust public authorities with the regulation of technology; 16. require that technology be licensed or registered; 17. establish criteria as to the use of technology and conditions related thereto, e.g. matter related to occupational health and safety and restrictions imposed on certain categories of persons (such as minors) who are debarred from operating certain technologies; 18. establish fees to be paid for use and/or registration/licensing of technology; 19. determine matters of propriety rights in technology; 20. assign competencies to courts or other alternative dispute resolution mechanisms to determine disputes related to technology;

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Technology Law 21. entrust the regulation of technology to a designated competent authority and empower that authority to issue binding decisions in relation to that technology; 22. allow for the import and export of technology and, where required, establish fiscal incentives or impose taxes in relation thereto; 23. permit the use of technology in judicial proceedings (such as through forensic evidence related to fingerprints, footprints, ballistics, DNA testing, drug testing, etc.); 24. prohibit or limit the use of technology which breaches human dignity such as through prohibiting cloning of human beings and xenotransplantation, or restricting biotechnology in medical use, e.g. in in vitro fertilisation where only a certain number of eggs may be fertilised; 25. cater for a procedure for the granting of rights related to technology, for amending those rights, for refusing those rights, for revoking them, and for determining their duration; 26. authorize territorial limitations on technology; 27. provide for advertising of technology and rules related thereto; 28. determine who is entitled to such rights or to make such changes; and 29. stipulate norms and procedures for transfer of technology.

6. Does the Constitution Refer to Technology Law? – A Consideration of Broadcasting and Electioneering The Constitution dates back to 1964. Yet, technology is not something which has existed in the last decade or so. When our forebears erected the Neolithic Temples in Malta and Gozo they must have done so by using some form of technology known to them at that time.

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id-dritt Thus, technology goes back in time though it is its regulation and exploitation which is more of a modern phenomenon. Hence, when the Constitution in 1964 enshrined the Broadcasting Authority to regulate broadcasting, it was regulating one form of technology – that of broadcasting.

At that time it was limited to radio broadcasting. Subsequently, it extended to cover television broadcasting and today, with the advent of the internet, to certain forms of communication on the internet – online audiovisual media services.

Although the Broadcasting Authority was established in 1961 by the Broadcasting Ordinance and subsequently promoted to constitutional status in 1964, a Broadcasting Board had already been established in September 1958 to regulate broadcasts in Malta. 23 Referring earlier to Communications Law, the Wireless Telegraphy Ordinance24 was first enacted in 1922 to regulate those forms of wireless telegraphy known at the time. Of course, today, the Malta Communications Authority is the competent regulatory authority in the field of communications and it is essentially regulating the various technologies used in this sector ranging from mobile telephony to data transmission, from cable television to digital terrestrial television, from frequency spectrum allocation to radiation monitoring, etc.

The Constitution of Malta also regulates elections in Malta. A new technological phenomenon, which the Electoral Commission has used for the very first time in the latest local councils and European Union Parliament elections of 25 May 2019, is machine-readable software, which was used to count the votes cast in favour of candidates contesting those elections. 25 There are of course other links between Technology Law and the Constitution foremost amongst which is Human Rights Law to which I shall refer in Section 7.1 below.

23 Joseph

M. Pirotta, Fortress Colony: The Final Act 1945-1964, Volume III: 1958-1961 (1st edn, Studia Editions 2001) 354.

24 Radiocommunications Act, Chapter 49 of the Revised Edition of the Laws of Malta 1984, since then repealed by the Communications Laws (Amendment) Act, Act No. XII of 2010, Section 2.

25 Electoral Laws (Amendment) Act, Act No. XI of 2019.

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7. Restrictions Imposed Upon Technology Law by Article 65(1) of the Constitution The point has already been made that technology is very much of a regulated field in law. Practically all forms of technology are regulated by the law. Some are over-regulated; others are under-regulated but the tendency is to regulate technology, be it a car, a ship, an aeroplane, a drone or whatever type of technology it happens to be. For instance, a licensing regime is normally set up for those persons owning cars, ships, planes, drones, etc. The laws establishing these licencing regimes would stipulate a number of conditions, which have to be observed by the licence holder. For example, in the case of cars there are laws which prohibit their access in restricted areas such as in Mdina26 or ‘uses gas canons or any other equipment that works manually or automatically, to produce noises, mainly intended to keep animals away from fields or other open spaces’.27 In the case of ships there are collision regulations,28 that is, driving regulations at sea.

Noteworthy in this regard is Section 65(1)29 of the Constitution of Malta which provides that: 65. (1) Subject to the provisions of this Constitution, 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 16th April, 2003.

A reading of this section implies that all Technology Law has to comply with: (i) Human Rights;

26 Mdina (Restriction of Access and Transit of Vehicles) Regulations, S.L. 65.27.

27 Criminal Code, Chapter 9 of the Laws of Malta, Section 338(mm).

28 Merchant Shipping Act, Chapter 234 of the Laws of Malta, Article 292.

29 For a discussion of Article 65(1) of the Constitution of Malta, see Kevin Aquilina, ‘The Parliament of Malta versus the Constitution of Malta: Parliament’s Law Making Function under Section 65(1) of the Constitution’, Commonwealth Law Bulletin (Vol. 38, No. 2, June 2012) 217-249.

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id-dritt (ii) the Principles of International Law; (iii) Malta’s international and regional obligations; and (iv) the Treaty of Accession to the European Union 2003.

These four constitutional limitations imposed upon Technology Law are now briefly addressed.

7.1 Human Rights Noteworthy is the fact that the above provision does not define ‘human rights’. Nevertheless, Chapter IV of the Constitution of Malta is devoted exclusively to human rights. These comprise several rights and freedoms which are relevant to Technology Law. In fact, technology is all pervasive in these provisions though it is nowhere mentioned by name. Some examples to illustrate this point should suffice here.

7.1.1 The right to life Every person enjoys a right to life. ‘Person’ here is understood as a human being not as an artificial person. For instance, in technology – and today much is written on this subject – there is Artificial Intelligence.

When the Constitution is safeguarding the right to life, it is protecting human life. Hence, robots – creatures of technology – do not enjoy human life. Nevertheless, robots can be used by humans – a case in point being by surgeons – to operate on human beings in an operating theatre. Technology here is being applied in a way to give effect to and to enhance the right to life. On the contrary, technology can be used to deny the right to life. When in those States in the United States of America where the electric chair is used to execute a judgment imposing the death penalty, technology is used to terminate human life. In the USA – contrary to Malta – it is possible to use technology to kill humans. In Malta, once capital punishment is outlawed, technology cannot be resorted to legally terminate life. Other instances 340

Technology Law include implements to carry out abortion and when weapons are used in military warfare.

7.1.2 Prohibition against Torture In films we do come across a torture scene with several implements being used to torture a person until s/he confesses. Pliers can be used to remove a nail from a piece of wood but it can be used to remove a nail from a foot or hand of a human being. A chainsaw can be used to cut wood to use the logs for a fireplace but it can also be used to amputate a person’s limbs.

Technology is here used to magnify pain to such an extent that it becomes totally unbearable and the person concerned is cracked until s/he starts leaking all the secrets known to him/her.

7.1.3 Eavesdropping Intelligence organisations use technology to read the exchange of emails without the consent of the sender and the receiver; hear peoples’ conversations at home, at the office or in public space without peoples’ knowledge let alone their informed consent; document clandestinely our images through photos taken from a spy craft such as a drone or a satellite orbiting planet Earth; record biometric data, etc. All these types of privacy invading technologies, when not used in terms of law, breach of our right to privacy.30

7.2 Principles of International Law The principles of International Law are multiple such that it is not possible to list them all in this paper. International Law is that branch of Public Law which primarily, though not exclusively,31 regulates the relations between 30 See Kevin Aquilina, ‘Public Security Versus Privacy in Technology Law: A Balancing Act?’, Computer Law & Security Review (Volume 26, No. 2, March 2010) 130-143.

31 There are also instances where Public International Law regulates also rights and duties of persons vis-à-vis the state and vice-versa as in the case of arbitration, human rights, criminal law, etc.

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id-dritt States. It also regulates the relations between States and international (and regional) organisations as well as the relations between international (or regional) organisations amongst themselves (inter se).

When Malta enters into a bilateral treaty with another State or States concerning any form of technology transfer, that treaty relationship would be governed by the principles of International Law. Hence, if Malta decides to build a nuclear power station, the Maltese government would need to purchase the technology in question from a foreign government. If, after Malta had paid the amount in question, the other State decides to refund that money back to Malta and opts to withdraw from that treaty arrangement, then there might be a breach of International Law. If one geographic neighbour, like Sicily, decides to install at Catania a power station, which is coal fired and permits environmental atmospheric pollution to reach Maltese houses, thereby toxifying the residents here, again there is a principle of international environmental law which comes to play.

In both examples given, it is evident how technology – through a nuclear plant or a coal fired power station – has influenced to the negative the good relations between two neighbouring countries. These principles are not found only in international environmental law but in all areas of international law.

7.3 Malta’s International and Regional Obligations Malta’s international and regional obligations are twofold. First, they are international, that is, they are universal, global in nature, going beyond a geographical context. Second, they are regional, that is, limited to a geographical region. In the case of Malta these obligations can be European and Mediterranean. Again, in the case of Europe there are several regional obligations to which Malta is bound by, ranging from Council of Europe Conventions to European Union Law.

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Technology Law 7.4 The Treaty of Accession to the European Union 2003 Of course, the Treaty of Accession to the European Union of 2003 is one example of a regional treaty (or convention) entered into by Malta. Now that Malta has been an EU Member State for more than 16 years the Maltese cannot but acknowledge and recognise how much technology law is also regulated by the European Union in its legislation. For instance, there are EU Directives regulating the lawnmower,32 vacuum cleaner,33 and the design, manufacture, and conformity assessment of pressure equipment.34 There are others which establish what tests have to be carried out to detect forms of pollution which others detail how the instruments used for this purpose have to be calibrated. Yet, as the EU Accession Treaty is a very complicated one, the legislator felt the need to single it out in the constitutional provision. If one were to hazard a guess on the amount of EU Law in Maltese Law, the answer is somewhere in the region of three-fourths or four-fifths of all Maltese Law. This therefore shows the extent of EU Law in the Maltese legal system.

8. Technology Law and Administrative Law In Public Law, at least historically speaking, Administrative Law is considered as an offshoot of Constitutional Law. Administrative Law has developed in its own right to the extent that it is considered as a separate (though still interrelated to Constitutional Law) branch of Public Law. Whenever an administrative authority is established, its composition, structures, officers, functions, duties, powers, etc. are all regulated by Administrative Law. 32 Council Directive 2000/14/EC of 8 May 2000 on the approximation of the laws of the Member States relating to the noise emission in the environment by equipment for use outdoors [2000] OJ L 162, 03/07/2000 P. 0001 – 0078.

33 Commission Regulation 666/2013 of 8 July 2013 implementing Directive 2009/125/EC of the European Parliament and of the Council with regard to ecodesign requirements for vacuum cleaners Text with EEA relevance [2013] OJ L 192, 13.7.2013, 24–34.

34 Council Directive 2014/68/EU of 15 May 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of pressure equipment [2014] OJ L 189, 27.6.2014, 164–259.

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id-dritt Thus, when Parliament established the Malta Communications Authority it set out in the law establishing that authority all its powers, duties, functions, the establishment and membership of its governing bodies, main officers, powers of inspection, sanctioning powers in case of breach of law, etc.

Whilst Constitutional Law tends to be more inclined to set out the principles which law has to follow, Administrative Law is more interested in the actual detail rather than in the overarching principle which ought to guide that authority in its relations with its licensees, members of the public and other entities of the public administration.

9. Technology Law and Human Rights Law Earlier in this paper, the relationship between Technology Law, on the one hand, and Human Rights Law, on the other, has already been alluded to.

Perhaps Human Rights Law is the most significant area of Public Law which comes in touch with Technology Law. There is no doubt that today humanity is technology driven, being inundated with all forms and sorts of technological devices which have changed how people relate to each other, how they work, and how they enjoy leisure time. Technology, in our society, is all pervasive.

Like all other things in life, it has its own advantages and disadvantages.

From a Technology Law angle, society tends to praise the good effects of technology. On the contrary, from a human rights perspective, focus is placed on the negative impact technology has on humanity. Of course, it is not possible in this short contribution to identify all the human rights infringing technologies and the adverse effect they have on society. It is understood that when the first technological tool was invented, it was invented as an aid, as assistance, to humanity. It was originally conceived just as a tool for humanity to make life easier.

The problem today is that technology is used for bad purposes. Drones are very much in use in military warfare not only as privacy invasive machines but as instruments of terror and assassination. Billions of euros are invested in technology to kill, main or harm humanity. All military warfare is about 344

Technology Law technology. There is no war without the armaments used to provoke the most harm to the enemy. This is of course where ethics and morality come into the picture to ensure that technology is not abused. In this context law and morality have a significant role to play in identifying the bad effects of technology to modern society. These noxious effects of technology need not necessarily be related to war. On the contrary, they are very much related to humanity’s daily life. One effect of technology is that it is making humanity illiterate. Take the case of the spell checker, the calculator and the computer which is erasing the literary, syntactical and numeracy skills studied at school. Nonetheless, it is not the purpose of this piece to attempt to delineate the confines and relationship of law and morality, on one hand, and Technology Law, on the other.

10. Conclusion Although the Constitution does not use the word ‘technology’ in its text and although Maltese Law nowhere refers to ‘Technology Law’ by its appellation, it is very much evident from the above that both the Constitution and ordinary law regulate technology and they do so at great detail. There are nevertheless, laws which do refer to specific aspects of technology in their own title, such as the Innovative Technology Arrangements and Services Act,35 or the Malta Council for Science and Technology Agency (Establishment) Order,36 or in the text of the law itself such as in legislation relating to type-approval,37 equipment,38 standards,39 calibration of instruments, 40 and, generally, where the word ‘technology’ is used in the text of the law. 41 From the above survey, technology is all pervasive and 35 Innovative Technology Arrangements and Services Act, Chapter 592 of the Laws of Malta.

36 Malta Council for Science and Technology Agency (Establishment) Order, SL 595.20.

37 EC Type-Approval of Motor Vehicles and their Trailers Regulations, SL 427.23.

38 From a survey of Maltese primary and subsidiary law, the word ‘equipment’ is used in 685 laws of Malta.

39 From a survey of Maltese primary and subsidiary law, the word ‘standards’ is used in 652 laws of Malta.

40 From a survey of Maltese primary and subsidiary law, the word ‘calibration of instruments’ is used in 62 laws of Malta.

41 From a survey of Maltese primary and subsidiary law, the word ‘technology’ is used in 263 345

id-dritt there is no doubt that it has not only come to stay but that it is indispensable for human life. Hence the need to regulate technology through Technology Law as well as to develop its links with other areas of the law foremost amongst which are the branches of Public Law.

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In Memoriam

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Andrew Sciberras obo the GħSL Team Professor J.J. Cremona - Obituary

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t was during the compilation of this year’s edition of Id-Dritt that we learnt of the passing of one of Malta’s most eminent jurists on Christmas Eve, only thirteen days from his 103rd birthday.

Previously, when Id-Dritt was known as The Law Journal, there were frequent pieces on eminent judges, taking note of their passing and retirement, with the last such In Memoriam published in 1972 in relation to Judge Alberto Magri. More recently there have been interviews with various jurists in Id-Dritt XIV, XV, and XVI. One would be hard pressed to find a Maltese legal mind with a more illustrious career than John Joseph Cremona, or J.J. as he was affectionately known, and it is certainly fitting that this tradition be revived in order to recognise his contribution to the Maltese legal tradition.

Originally from Gozo, he was called to the bar in 1943, marking the beginning of an almost half-century long legal career. He had a thirst for knowledge, holding a doctorate in literature from La Sapienza University, A B.A. and Ph.D. in law from University of London, a Dr. jur. from Trieste University, as well as his local LL.D. from the University of Malta. Cremona returned to the Faculty of Laws in order to lecture in 1948, where he was eventually recognised as a Professor ‘on grounds of special distinction’. He started lecturing in Constitutional Law, moving to Criminal Law in 1959. He was also at different times member of the University Senate, president of the University Council, and Pro-Chancellor.

Prof. Cremona served in the role of Attorney General from 1957 to 1964 and is credited with having drafted Malta’s Independence Constitution which still stands to this day.Following the grant of independence, Prof. Cremona was elevated to the bench, and appointed as the Vice-President of both the Court of Appeal as well as the Constitutional Court, the second highest position in the local judiciary. In 1965 he was also appointed the first judge from Malta at the European Court of Human Rights, a position he held for twentyseven years.

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Following the appointment of Prof. Anthony Mamo to the position of Governor-General in 1971, Cremona was named as Chief Justice of Malta. After 10 years as Chief Justice, Prof. Cremona resigned his post in the Maltese Judiciary before reaching the retirement age of 65, however continuing to serve in the European Court of Human Rights for three consecutive terms, being appointed Vice-President of the Court in 1986. He held this post until 1992, when Prof. Giuseppe Mifsud Bonnici was appointed to replace him.

After retiring from the Strasbourg court Prof. Cremona continued to write, authoring the much-read Constitutional Law text The Maltese Constitution and Constitutional History since 1813, as well as publishing a number of poetic works, the last such work published as recently as 2018 entitled Poeżiji. For a time in the 1960s, Cremona served as Vice President of the International Poetry Society, at the time the president was Christopher Fry. He has published a collection of his papers in two volumes, spanning the period of 1946 to the year 2000.

He was a recipient of countless honours from various states including Malta, the Knights of St John, the United Kingdom, France, the Vatican, and Italy. This only goes to show the extremely high regard he was held in, both locally and abroad.

The 24th of December will be remembered as the day Malta lost a great legal mind, however he will never be forgotten. His publications will continue to be referenced and utilised by students and legal professionals alike, and his influence on the Maltese legal sphere will always be present. He is survived by his two daughters and his son.

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t is refreshing, for a retired judge like myself, to know that the law students of today are still finding time to publish their journal, and are always striving to make it relevant and full of erudite articles at the same time.

Some years ago, I bought three editions of The Law Journal, as it was then called back in 1945, from a car boot sale, and it is very interesting to see the contents, and compare them with those in the current edition. For example, in the Vol. I No. 3, dated October 1945, the student J.M Ganado (much later my revered professor in Civil Law) wrote an article on Judge Debono while Edgar Mizzi (later Attorney General for many years) wrote on the action de in rem verso. There were articles by Professor Walter Ganado on the problems of social medicine, and by a then young Dr. Albert Ganado on excusable homicide.

When I graduated in 1979, the actio de in rem verso and excusable homicide were still subjects we had to study, but in my forty years of practice as a lawyer and later a judge, I only had to deal with a couple of cases regarding the former, and only in my last two years as President of the Court of Criminal Appeal (as Chief Justice) did iI have to deal with the latter. I have no doubt that today, only the small number of lawyers practicing in Criminal Law are interested in excusable homicide while I wonder how many cases based on the actio de in rem verso (if any at all) are filed every year.

Nowadays many students and young lawyers are well versed in European Community Law, Company Law, Competition Law and Human Rights Law, and this is reflected in the articles in this edition, because these publications invariably reflect the most common issues which are studied, practiced and sometimes debated in the Law Courts, although of course Covid had to make its presence felt even here!

This has brought about another development in the practice of law in Malta – specialisation. Practising lawyers and sitting Judges have to be up to date more than ever with new laws and legal concepts emerging from time to time and this why publications such as this are essential for students and practising lawyers.

I strongly recommend this publication to all students and practising lawyers, and wish the editorial board all the best for their future efforts.

ISBN 9789918950652

Joseph Azzopardi Chief Justice Emeritus Malta Law Courts

9 789918 950652

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