The Malta Independent 22 January 2021, Friday

Rule of law, for the others

Peter Agius Wednesday, 2 December 2020, 07:30 Last update: about 3 months ago

This last week brought a pot of mixed feelings on Malta’s journey through the European project. On the one hand we learnt of the impending arrival of the Pfizer/biontech vaccine to our shores thanks to the timely action by the European Union. That is a case of Europe acting assertively where needed. On the other hand, on Thursday the European Parliament voted a resolution condemning Poland on its abortion laws supposedly basing itself on rule of law motivations.

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I am no fan of the present Polish Government and its obsession to ‘clean out’ its’ judiciary from what it deems as hostile elements. I also do not express the following lines as a side on the abortion debate. With you, in the following lines I want to share my views on the European Parliament’s vote in the wider perspective of the balance of powers between the Union and the Member States and the Maltese impact in that equation.

I think it is best to start with a clarification on the essence of the European Union as a project that can be extremely beneficial to provide solutions to problems going beyond one member state. That is the essence of the power assigned to the Union. It should act only when its’ action is imperative to address matters which cannot be addressed by one national government. This is not only a matter of logic and the principle of subsidiarity, expressly cast in words in the Treaty. This is also found in another explicit provision of EU treaty law that the Union shall act only when Member States assign it powers to do so. Basically, unless explicitly asked to by all Member States in the Treaty, the Union should not move or budge to address anything under the sun. The EU can in fact be seen as acting on a special mandate founded on a written contract. What is in the contract can be acted upon. What is out, is out.

The learned law scholars would explain the above as part of the realm of the rule of the law. For what is the principle of the rule of law if not a categorical and unconditional statement that the law as written and signed by all member states (in the case of the EU) prevails over the wishes of others who want to act outside of it? The English language tends to disfigure the concept through its familiar bypass, but rule of law is essentially a translation of l’Etat du Droit, i.e. a state of being where everything falls within prescribed legal measures and where no one is allowed to operate outside it.

Now let us test this last qualification to the case at hand where the EU treaties do not foresee any powers for the Union to rule on abortion and expressly foresees that ‘in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States’.

The next question is natural. Can Poland address the rights of Poles in Poland? Of course it can, so the principle of rule of law obliges the Union to stay out of Polish affairs on this matter at least.

Malta has a lot to gain and to lose if the European Union encroaches on matters which do not belong to it. Our tax sovereignty is the first area that comes to mind. A strong movement is gathering momentum in Europe for an EU-wide regulation of tax matters. A Union which respects its own limits may indeed be our best protection in this sector as in many others.

The Maltese perspective on EU and the rule of law is certainly spiced up with all the incidents of the labour government over the past years. Together with Poland and Hungary, Malta’s name has, on occasion, featured in Brussels discussions on Union action to assert common principles in relations to Member States. The present Government has made it a point to fend off these advances highlighting the need to respect national competence. This as late as last month where PM Abela marked government’s intention to fight off European Commission action on the infamous cash for passports scheme.

Ironic isn’t it that we want a Union which respects national competences on a matter which effectively impinges on all Member States, given that the new ‘Maltese’ are becoming EU citizens, but then we want to meddle with what happens in Poland with no bearing outside its borders. That’s the way the newly elected labour MEP Cyrus Engerer would have it. Engerer in fact voted in favour of the mentioned European Parliament resolution condemning Poland on its’ abortion rules.

Engerer’s position is aiding and abetting a Union that goes beyond its powers. That is certainly in stark contrast to Malta’s national interest be it on ethical, business, tax or other matters.

I believe in another kind of relationship with Europe. One that works on the areas where the Union should act and where it should ensure its rules are working to bear fruit to the citizens in Malta, from Zejtun to Marsalforn. For while some might find it exciting to expand EU actions to new areas with little impact on everyday lives, I believe that we should see that core EU achievements such as free movement, regional and local development and healthy and sustainable food are actually delivering the desired results.

My experience of speaking and visiting work places, entrepreneurs and youths demonstrate that much more should be done for EU results to trickle down to the territory on the ground. Last week I intervened for a Maltese mother of two struggling for the effective implementation of a maintenance order in France. This should be secured in EU laws, but that does not reflect on her bank account. Same story goes for a myriad of areas, from EU funding made less accessible through restrictive national rules to youth opportunities tapped by a few for lack of effective communication. It is there that our action is most urgently needed. The newest of frontiers is perhaps the one meant to ensure effective delivery of old achievements.

Peter Agius, MEP candidate and EU expert

[email protected]

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