A CONSTITUTIONAL WAY OUT OF THE EUROPEAN UNION

Dateline: 27th June 2003

To many Europeans the best innovation introduced in the Draft Constitution Treaty of the European Union is found in Article I-59: which provides that "any Member State may decide to withdraw from the Union".

The constitutional facility of voluntary withdrawal contradicts Prime Minister Fenech Adami’s declaration that the decision of the majority of the Maltese people to join the EU is "irrevocable". The decision is reversible by a simple majority which may be obtained as a consequence of a slender swing of a few more than 6000 votes of those casts in favour of the membership agreement negotiated by the Nationalist government. The adverse impact of EU membership on many sectors of the people may bring about this beneficial swing in no time, once it is known that revocation of EU membership by democratic means is constitutionally feasible.

To many Maltese it may sound strange that Article I-10:l of the Draft Constitutional Treaty says that "the Constitution, and law adopted by the Union’s Institutions … shall have primacy over the law of the Member States". The expression "the law of the Member States" includes the Constitution of the Member States.

It must be the cause of a lot of embarrassment to our Members of Parliament who have taken the oath of loyalty to the Constitution of Malta to accept that a Union law shall override our Constitution which is the supreme law of the land. The more so when Articles 6 of the Constitution of Malta provides that "if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other shall, to the extent of the inconsistency, be void".

Many of those who voted in favour of the agreement negotiated with the EU did so on the strength of the Prime Minster’s solemn undertaking that EU membership would not affect the Constitution of Malta. They will now feel betrayed when they will find out that the EU Accession Agreement purports to divest the Constitution of Malta from its supremacy over all other laws to which we are subject, and this, in fragrant breach of the Constitution itself.

When discussing the Four Freedoms which the EU guarantees to all its citizens, a lot of attention was given in connection with the movement of capital, to the acquisition of immovable property in Malta by non-Maltese EU citizens. No attention was afforded to the "Freedom of Residence" which in the Draft Constitutional Treaty is considered to be a Fundamental Human Right. In fact Articles II-45 states that "every citizen of the Union has the right to move and reside freely within the territory of the Member States".

Although this right to freely reside in Malta does not imply the right to purchase immovable property in Malta, it deserves to be considered by us as a potential cause of trouble. Up to now, foreigners do not enjoy a fundamental right to freely reside in Malta. As a consequence of the EU Accession Treaty and of the Draft Constitutional Treaty, EU citizens from any of the EU member countries will acquire the fundamental right to reside freely in Malta. Were this right to be exercised by a considerable number of non-Maltese EU citizens, as may be anticipated, the effect on the level of house-rents will be harmful, and the shortage of socially affordable rented houses for Maltese citizens will be rendered more acute.

As a result of the wide publicity which has been given to the discussions carried the EU convention which produced the Draft Constitutional Treaty and to the participation of the Prime Minister at its presentation at the EU summit in Greece, many may be under the impression that Malta is included in the list of signatories of the Constitutional Treaty. They will therefore be disappointed to find out that the current text of Article IV-3 of the Draft Constitutional Treaty states that the "Treaty establishing the Constitution shall apply to" the existing 15 EU Member States, and the 10 acceding member States are not mentioned.

However, because of the "Legal continuity" provisions of Article IV-2, which provides that the EU established by the Constitution shall succeed to all the rights and obligations of the EU existing by virtue of previous treaties, the new EU Constitution will apply to the 10 countries, including Malta, who signed the Treaty of Accession on 16 April in Greece.

In fact, Malta, together with the other 9 acceding countries, had according to Articles 5.1 of the 16th April Accession Treaty, undertaken "to accede from the date of accession to all other agreements concluded by the present Member States relating to the functioning of the Union or connected with the activities thereof".

An unsatisfactory EU Constitution will provide Malta with an added reason to exercise the constitutional right to voluntarily withdraw from the Union when a simple majority of the Maltese people decide to do so.