From Dr C. Bonello LL.D

I act on behalf of the plaintiffs in the lawsuit “Dr Harry Vassallo et vs Prime Minister et”. I refer to the letter by Richard Cachia Caruana entitled “Factually correct” published in The Malta Independent on Sunday of 3 June.

Mr Cachia Caruana, Malta’s Permanent Representative to the EU is quite adamant that the matter of the legality or otherwise of the extension of development areas described as a rationalisation exercise by the government has been decided in detail by the Maltese courts. He has told the EU Commission’s Parliamentary and Foreign Affairs Committee that this is so. And he stands by his statement.

Unfortunately for Mr Cachia Caruana, not everyone at the EU Commission is as innocent of legal matters as he is. The First Hall of the Civil Court has decided, without hearing evidence on the merits of the case and on a prima facie basis as it is required to do regarding the issue of a warrant of prohibitory injunction, that the issue of the warrant requested was not to be made. Any utterances of that court on the merits of the case, which is still to be heard in full by the First Hall of the Civil Court, are altogether irrelevant. The EU Commission is fully aware of these facts regardless of Mr Cachia Caruana’s adamant statements.

Mr Cachia Caruana is certainly aware that proceedings before the Maltese courts have no impact on the decisions to be taken by the EU Commission in defending the proper implementation of the EU acquis but are run in parallel with the ongoing proceedings in which the EU Commission’s DG Environment has queried the actions of the Maltese government in the matter. Perhaps our Permanent Representative in Brussels would care to publish the correspondence on the matter so far and let the public decide for itself how things stand.

Following a decision by the Maltese courts on the merits, there will certainly be an appeal by one party or the other and quite possibly by both. The matter is very far from being finally decided by our domestic courts and is likely to be heard also in the European court. My clients’ request for the issue of a warrant of prohibitory injunction provided the courts and the government with an opportunity to avoid the crisis that will certainly ensue if and when it is finally determined that the actions of our government are in fact beyond its legal powers and in violation of the EU acquis.

If Mr Cachia Caruana is so certain of the final outcome, perhaps he should give all parties concerned an assurance that he is prepared to make good for the damages to be sought by persons investing significant sums of money only to find that development permits issued to them will have to be rescinded and/or the damages to be claimed by those whose investments on the edge of the former development boundaries are illegally devalued.

My clients – the plaintiffs in the lawsuit in question – sought to avoid all this by requesting the courts to keep all these issues in suspension until they are finally determined. The court has chosen not to seize the opportunity. The chaos that will ensue, generating hundreds of separate court cases was not deemed to be worth avoiding.

Time and again the government has sought to present the public with a fait accompli, a despicable un-European practice directly violating all the values of solidarity, subsidiarity and transparent or accountable government. Time and again it has been able to get away with it. In the matter of the violation of the Strategic Environmental Assessment Directive through the illegal extension of development zones, the EU Commission is unlikely to accept a fait accompli or to baulk at the awesome prospect of leaving the government holding the baby on the financial and legal consequences of its actions.

Mr Cachia Caruana can tell any committee anything he chooses and be as adamant as he wishes. He cannot change reality. The final decision by the Maltese courts is not yet available. The proceedings by the EU Commission’s DG Environment are in their very early stages.

Claire Bonello