Id-Dritt XXVIII - Volume 1

ID - DRITT volume xxviii

2018 Published by Għaqda Studenti tal-Liġi

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 2018 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 XXVIII 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: 978-99957-857-7-2

Opening Address Matthew Charles Zammit Publications Officer, GħSL

ID - DRITT

O

n behalf of the GħSL Executive Board, the Publications Committee and the Id-Dritt Editorial Board, it is a great honour and privilege to present to you the 28th Edition of Id-Dritt, the annual law journal published by the Malta Law Students’ Society.

This law journal is the cumulative effort of a large number of people - the contributors, who dedicated large swaths of time to form and research their points of view, which are then expressed in the written form; the editors, who shaped and edited the content into the recognisable standard that Id-Dritt has become synonymous with; the peer-reviewers, who gladly accepted our invitation in providing a professional feedback about the content and the quality of the articles; and the GħSL Executive Board, without whose backing and support the whole idea of another edition of Id-Dritt would be nigh impossible.

What initially commenced back in 1944 as a highly-ambitious project by a small number of legal students with an amaranthine passion for the law, through many trials and tribulations, has now transformed itself into a quasi-customary obligation for this student organisation, both because of its timely delivery year after year, but also due to it being a product and a detailed examination (or in some cases, a rebuttal) of external events, technological advancements and societal questions prevalent in our community. Id-Dritt, along with its online sister the GħSL Online Journal, are amongst the only mediums accessible by students, academics and professionals in the legal field alike who are willing to not only pursue the further dissemination of legal knowledge and appraisal, but to encourage the fruition of healthy academic discourse and well-researched criticism, in a world seemingly lacking of both.

In a hyper-connected environment, where foreign and domestic policy is expressed through 140-character statements, and longstanding normative practices are being mercilessly discarded while we witness the creation of enterprises hell-bent on democratising basic norms and truths in ever-efficient ways, the need for clarity has never been this high of an antecedent. viii

VOLUME XXVIIII

It would be easy for one to refrain from having to willingly differentiate between fiction and fact, instead opting for a policy of non-committal in the pursuance of further knowledge: this, in a world with open access to an infinite database of information at the touch of a button, seems rather sardonic, if not plainly comical. It seems that the Aristotelian means of a sturdy middle-ground remains elusive, hidden under the influence and end-product of multiple self-serving stakeholders, whilst a deep undercurrent of Socratesian cynicism slowly rears its ugly head with exponential frequency.

While the problems plaguing public discourse are well known (perhaps the result of a convoluted past, an ever-changing present, a hazy future or possible a concoction of all three), the stability allegedly defining academic writing features its own distinct set of new challenges. Some of the elements, which are inherent and contribute to the apparent niche of this medium (a protracted indepth examination of the subject matter; a discrepancy between the mainstream and the technical definition of terms which are the result of the insatiable need for accuracy and clarity; and a prevalent focus on the content as opposed to the aesthetic appeal or the delivery) might also threaten the allure for its intended reader, which in turn intimidates the motivation needed for the potential fruits to be sowed in the first place. It is perhaps disappointing that in Malta all law journals are published only by law students, while professional bodies who are seemingly eager to limitedly contribute to these publications, are unable or unwilling to have a medium of their own.

The effects of this can be pretty damaging. On the international stage, fringe elements of academic writing have already fallen into the crevices of self-serving partisan ideology, or else sacrificed in-depth scrutiny for mainstream appeal, to the detriment of their source material. And while the technostructure behind Malta’s academia, especially the legal sphere, remains robust for the foreseeable future, it is clear for many that the demand for legal writing far exceeds the supply.

While the work done by the multiple offices inside GħSL are indubitably substantial (the vast array of policy papers, seminars, ix

ID - DRITT

conferences and publications all speak volumes about this organisation’s illustrious history of student and legal activism, as well as its ambitions and aspirations), and whilst the efforts of other organisations must be duly acknowledged, this fruitful habitat seemingly dissipates as soon as we venture from the grounds of Tal Qroqq.

There is still a disconnect between the appreciation for academic writing inside the four walls of the University of Malta, and the acknowledgment of said writing in the Law Courts, in Parliament and in the law firms, something which does not mirror other skilled professions with similar needs for academic research. As things currently stand, members of the legal profession here in Malta must either resort to the very few student publications in existence to obtain a multi-faceted understanding of the subject, or else turn to the press, a medium whose objectives (brevity, shock value, rapid content turnover and audience responsiveness) are more often than not incompatible with those necessary for a well-construed legal article. This latter point stems from a more subjective point of view: at some point, yours truly has worn the hats of a law student, a journalist, an editor for an academic journal and the chief executive officer of a student media organisation, and is perhaps more aware of the potential pitfalls when dealing with this dichotomy than those not specifically interested in either of these fields.

GħSL, through the Publications Office as well as its other committees, still remains committed in actively participating within the legal profession, as well as beyond. I have no doubt that in the upcoming years, this organisation will continue fulfilling this rapacious necessity for academic writing: This edition of Id-Dritt is, if nothing more, a testament to the values that are held so intrinsically deep within this organisation.

However, the real legacy of Id-Dritt and the Online Law Journal would only be cemented if it inspires further academics and professionals in the field to do two things: 1) Add to the slowlyincreasing library of Maltese academic research in the legal field, at a faster rate than the present supply, and 2) come up with substantial x

VOLUME XXVIIII

new ways of transmitting such a highly-influential collection of legal knowledge to all members of the legal profession in an efficient, practical yet secure manner; from the judiciary to the executive, from the lawyers to the legal advisors.

On a final point, I would like to thank a large number of people who, without their help and input, the 28th Edition of Id-Dritt would have merely been a pipe dream: To Daniele, Nathaniel, Lara, Agnes, Aidan, Andrew James, Celine, Cynthia, Emma, Erika, Jessica, Julia and Matt, as fellow members of the Executive Board: We few, we merry few. My brief experience in GħSL has been insanely gratifying, and while your company has been hugely appreciated, I’m more than encouraged by what the future holds for each and every one of you. Knowing I had your confidence at every turn made the work easier to conclude, yet simultaneously more gratifying. You have my thanks!

To Susan, the Editor-In-Chief: I could not have possibly asked for a superior aide-de-camp in ensuring the finalisation of this project. Your invaluable experience has helped ensure that this publication reaches the highest levels it deserves, and your mark on this publication couldn’t possibly be overstated. It’s been a pleasure.

To Daniel, Carla, Clara, Maria, Emma and Diana, the IdDritt Editorial Team: Apologies for my incessant badgering, but in case I wasn’t clear enough in our conversations, your efforts were consistently top-notch and immensely appreciated. A better legal editorial team would be excruciatingly hard to come by, and I truly wish you all the best for your future endeavours, whatever and wherever they may be.

To my direct predecessors, Corinne and Ariane: Fulfilling a personal dream since the earliest days inside the law course was always going to be a challenge, especially when I had each of your big shoes to fill. To that end, your help and your advice are immeasurably cherished, and immensely appreciated.

xi

ID - DRITT

To my family and to Jessica, my significant other: Without you, all of this would have been rather pointless. Your omnipresent encouragement and unconditional love will always be treasured.

To all the contributors and the peer-reviewers: Your efforts, which continued to be of the highest academic calibre, are evidence of the high reputation that Id-Dritt holds within the legal profession.

We thank you for your contributions, and we hope we have made them justice.

And finally, to you, dear reader: We wish you thanks for your interest in this publication, and we hope to encourage and inspire you to read, examine, critique, participate and encourage such publications in the future, even when it might seem that such an endeavour is facing insurmountable odds.

I finish by some final words of encouragement and ponder. The following is an extract from the Song of Lewes, a 13th Century poem (originally in Latin) which is described by contemporary accounts as ‘a religious celebration of the triumph of right over might1: The saying goes, ‘Whatever the King wishes, is law,’ but the truth is the other way round, for the law stands even if the King falls. The law is made up of truth and charity and the habits of virtue; truth, light, charity, warmth, enthusiasm catch alight. Whatever the King legislates, let it be consistent with these principles. Otherwise, the people will be miserable; and they will be betrayed if the King averts his gaze from the truth, or lacks charity, or if he does not always have the energy to do right...

The King should treat his people according to their due. If he doesn’t, if he degrades his people and demotes them, there is no point in asking why men treated in this way disobey him. On the contrary, they would be mad not to do so.’

1

Colin Firth and Anthony Arnove, The People Speak - Voices That Changed Britain (Canongate Books Ltd 2012) 14 xii

Preamble Susan Cassar Editor-In-Chief, Id-Dritt XXVIII

ID - DRITT

F

our years ago, I was approached and asked whether I would be interested to help the GħSL’s Publications Office in transcribing some speeches, the main aim being to publish them in the book entitled ‘The Constitution: 50 years of proposals and Counter Proposals1’. Being highly interested in the field of Constitutional law, I immediately accepted to help the office out, and after an enriching experience, I later on decided to join the Id-Dritt Editorial Board as an editor.

After having served the Id-Dritt Editorial Board for two consecutive years, I was asked by the then-Publications Officer Ariane Aquilina on whether I would consider contesting the election for Publications Officer, or else continue aiding the office by accepting the role of Editor-in-Chief. For the greater good of the Publications Office, knowing that the fifth year of my legal studies i.e. the Master of Advocacy course, would entail extra hard work (since one would not only have to attend lectures at the University of Malta, but also attend a lawyer’s office regularly in preparation for the warrant exam), I opted for the role of Editor in Chief.

I was excited and honoured to work for the 28th Edition of IdDritt during my final year of the law course. The role of Editor-inChief is not to be taken lightly: One of my main priorities was to keep Id-Dritt pertinent and alive in an era where, in this tiny rock in the middle of the Mediterranean, only a few people really appreciate the importance of legal research. It is wonderful to witness a substantial amount of authors expressing their interest in contributing their articles for Id-Dritt or for the GħSL’s Online Law Journal, and whilst academically legal research is highly valued, one cannot ignore the fact that in practice, more often than not not the messages heralded by these prestigious publications are falling on deaf ears.

As an example, allow me to mention the fact that despite the abundance amount of legal writings suggesting ways to enhance the Attorney General’s Office in Malta by separating his roles of 1

Mifsud Ivan (Ed.), The Constitution - 50 Years of Proposals and Counter Proposals (Book Distributors Limited 2015) xiv

VOLUME XXVIIII

Government legal Advisor and public prosecutor, our Maltese legislators (since the 1990’s) have failed to take this research into consideration and apply the necessary criminal and constitutional amendments. The latter thought is not only held by yours truly, who is merely a freshly Bachelor of Laws (Hons) graduate, a Master of Advocacy student and a trainee in a lawyer’s office, but also by two local highly esteemed legal practitioners: Specifically, former European Commissioner Dr. Tonio Borg and Magistrate Dr. Aaron Bugeja, the latter having lectured me during the year on Criminal and Constitutional Procedure, who has continuously harped during their lectures that criminal and constitutional amendments to the said office ought to take place in this day and age, because this is what research (including that published in previous editions of Id-Dritt) has shown and indicated in no uncertain terms.

The author who dedicates his time researching on a particular area of law would usually propose amendments that would improve the manner in which our legal system works. In drafting and amending laws, the House of Representatives ought to take more into consideration these legal publications such as Id-Dritt as a source of knowledge, research and legal innovation.

Volume XXVIII of Id-Dritt contains a variety of articles dealing with different areas of law, from those being mainly practiced in the Valletta Law Courts such as Criminal Procedure, Constitutional and Human Rights Procedure and Administrative law, to the more new and complex areas being primarily exercised in law firms such as commercial law, gaming law, maritime law, and ICT law. Additionally, this year’s edition boasts a very good number of articles dealing with European Union law.

The contributors of the said legal journal include members of the judiciary, expert advocates and professors, newly graduate advocates, as well as experts in their fields such as architects and doctors, all of whom had experience in the drafting and passing of new legal amendments. The inclusion of the latter category may not be so welcome by some, however allowing some space to these professionals to contribute in an area which they are specifically involved in, would xv

ID - DRITT

definitely result in them teaching legal practitioners and law students about that particular field of the law.

My role as Editor-in-Chief would not have been accomplished without the help and guidance of certain people. Firstly, I would like to thank the Publications Officers Corinne Micallef Grimaud and Matthew Charles Zammit, for understanding my ‘limitations’ as a Gozitan when scheduling Editorial Board meetings and for their constant support and guidance throughout this whole journey. Their leadership skills, dedication, and patience have made this dream of IdDritt come to reality. I thank both of them as well as their predecessor Ariane Aquilina for giving me this opportunity to serve as Editor-inChief. It has been an honour working with all of you.

Secondly, I would like to thank my team of editors Daniel Cassar, Carla Farrugia, Clara Galdies, Maria Refalo, Emma Sammut, and Diana Ungureanu for their hard work in editing the articles whilst also being engaged in academic activities. To all of you I would like to say: ‘A big well done. Thank you for being patient with me during those times wherein I demanded perfection to the core in following Oscola rules’.

I would also like to thank all the contributors for dedicating their time to write exceptional articles, without whom Id-Dritt would not have seen the light of day. Last but not least I thank the peer-reviewers who went through each and every article ensuring that they are of good quality for publication.

I hope that this edition of Id-Dritt would be availed of not only by law students or academics conducting some form of research for their thesis or assignments but also by the practitioner in his/her office, by the judiciary and by the Maltese legislator. Let us not simply leave these legal publications on a bookshelf, but let us respect the author’s hard work.

xvi

Foreword Dr David Fabri Head of Department, Commercial Law Faculty of Laws

ID - DRITT

The Study of Law

L

aw is an interesting, vital, useful, necessary and evolving phenomenon. It reaches into, influences and guides most aspects of our lives. Law is a civilized and civilizing device which allows us to lead better lives together in, and as a community. It makes our lives safer and more predictable than it otherwise might have been. Law makes the lives of ordinary people less difficult, and holds government and authority to account.

Law is a special and important subject to learn and to teach. The study of law is also a wonderful intellectual challenge – it is not about merely passing exams. If mishandled, law studies can become boring and seemingly useless. Bad teachers can ruin one’s interest in law. It does not need to be like this. The study of law is not about learning stuff by heart, or memorizing set answers to exam questions not yet even set, or about class notes and past papers. These are mental traps and one should rebel against these unworthy practices, rather than idly embrace them. Certainly, dictation suits the law very badly. How could so many closed minds almost ruin it for us by transforming the study of law into a monotonous and senseless burden?

We live in a fast changing world. Knowledge is key and crucial for one’s self-development, for one’s entertainment and for one’s interactions with others. Students have made a good choice entering the law course. It is a badge of honour to be and to be described as a University student. Students have to work to deserve that privilege.

Students do not come to University just to study for exams, but to open up their minds to knowledge. Learning is fun, and one should try to have fun while learning about law and its evolution and history.

Luckily, today we have far greater access to laws, cases and publications. Students, you should surround yourselves with books.

Even books one might not eventually ever read; serious books as well as fun books. They will sit there faithfully and silently waiting their moment to arrive. Put up shelves and bookcases wherever you can possibly fit them.

xviii

VOLUME XXVIIII

One may start with such instructive older texts as the Code of Hammurabi and the Magna Carta, any book by the brilliant Lord Denning or any from the hilarious Rumpole collection. No real alternative to reading exists, and there are no short cuts. Either you read or you don’t. If you do not like reading, then you are in the wrong profession; indeed in the wrong place.

Laws should not be examined in isolation, but within their historical and political context. Everything has a context, and law is certainly no exception. A student should try to understand what the law is seeking to achieve. Is it a good law? Is it being done for the right purpose? Who is pushing it? What led to it? Are its objectives clear and has it been properly drafted? Does it achieve the intended objectives? Is it workable? Is it comprehensible? And how can one improve upon it?

Law students cannot simply accept what they find as if no alternative exists. There is no such thing as a perfect law. One can always find a different and a better way of doing things. This is where students come in the picture: they should analyse things, criticize them and work to improve them, thus offering new insights. Students leaving from the University with a law degree should remain humble and continue studying and learning beyond that which was taught.

Perhaps more than ever before, we need to know how and why laws are being made, and why some laws have been conceived and drafted so poorly. We desperately need a more informed and coherent discussion of what we want to achieve from regulators and regulation, what the objectives are, what risks need to be better managed, what dangers lie in wait, what mistakes and deficiencies have been identified, how regulators should conduct themselves, and what the future holds for us in this area. In this context, Id-Dritt should become quality and compulsory reading.

Criticism of legislation is still too soft or inexistent and we now need to start adopting harsher pens. Id-Dritt should take the lead, build on what has already been achieved and continue to improve legal knowledge. No more mere reviews; no more descriptions; no xix

ID - DRITT

more simplistic narratives; no more vanity articles; but more original analysis and innovative solidly researched criticism. This should be the cardinal objective of this student publication.

Writing well about law, like writing good laws, presents significant challenges. It is not enough just to write, but one should seek to make an articulate, original and substantial contribution to knowledge and to the community, a contribution imbued with a strong sense of justice.

So many legal developments have happened during these past 25 years that it may sometimes seem difficult to keep up.

So many new regulators and so many new regulations.

So many poorly drafted laws to correct; so many bad laws to improve, to strike down, to replace; so many new good laws still to adopt; so many laws not enforced or enforced selectively.

So much to read, so much to think about, so much to criticize, so many small and big injustices, so much to change and improve.

So much to write about, so little time.

xx

Editorial Board

Publications Officer Matthew Charles Zammit Corinne Sammut Micallef-Grimaud Editor-In-Chief Susan Cassar Editors Daniel Cassar Carla Farrugia Clara Galdies Maria Refalo Emma Sammut Diana A. Ungureanu

xxiii

Executive Board 2017 / 2018 Għaqda Studenti tal-Liġi (GħSL)

President

Daniele Gafà

Vice President

Nathaniel Falzon

Secretary General Lara Attard

Financial Controller

Matthew Booker

Public Relations Officer Cynthia Duncan

Academic Events Officer

Celine Cuschieri Debono

Academic Affairs Officer Agnes Vella

International Officer Julia Cini

Marketing Officer Emma Blake

Resources Officer

Andrew James Abdilla

Events Officer Aidan Cutajar

Policy Officer Erika Taliana

Publications Officer

Matthew Charles Zammit

External Relations Officer

Jessica Napier

xxv

Contents

Volume 1

Administrative law The role of current Maltese legislation in the prevention of traffic accidens in Malta Mariah Mula

2

Bio-Ethics My Patient - the Unborn Human Child Godfrey Farrugia

18

Book Review The Multidimensionality of Privacy: Joseph A Cannataci’s ‘The Individual and Privacy’

Kevin Aquilina

57

Comparative Tort Law Le funzioni della Responsabilta’ Civile nel panorama Italiano, e il difficile dialogo con il Danno Tanatologico Anunziata Rapillo

67

Competition Law An effective regulatory enforcement and sanctions regime post the Federation of Estate Agents Case: the issues

Paul Edgar Micallef Grimaud

93

Criminal Law An analysis of the Maltese Criminal Law on Female Genital Mutiliation and reflections on potential legal & social consequences

Jeanise Dalli

xxvii

118

Evaluating the impact of the EU Directives regarding criminal investigations, namely 48/2013 regarding the rights of a suspect

Consuelo Scerri Herrera

149

Crypto-Currency Law Is current legislation ready to embrace the Blockchain revolution, and what is the legal position of Initial Coin Offerings (ICO’s)?

169 Jonathan Galea, Joe Borg, Erika Micallef, Miriana Borg

Data Protection Law Consent in light of the General Data Protection Regulation

194

The General Data Protection Regulation: Automated decisions and the impact on Big Data Analytics

215

Sharon Xuereb, Terence Cassar

Alastair Facciol

Employment Law Employment Law - Disciplinary procedures and warnings

Natalino Caruana De Brincat

227

Environmental Law The Recast Renewable Energy Directive - Any consequences for climatechange?

Rya Gatt

xxviii

239

Volume 2

EU Law Brussels: The new Babylon? Law and language in the European Union?

263

A Discussion of Proportionality in selected cases of EU Fundamental Rights

285

Multilingualism and EU Legal Terminlogy

316

The Eurasian Economic Union Risks and opportunities of an emerging Europe

342

Roxanne Meilak Borg

Natasha Buontempo

Diane Sultana

Werner Miguel Kühn

Gaming Law The future of Malta’s Gaming legal framework: Overhauling the System Silvana Zammit

410

International Law Some general reflections on characteristic features of International Humanitarian Law? Marcin Marcinko

423

Legal History The Malta Government Gazette: a chronicle of History in the making?

Kevin Aquilina

xxix

447

Maritime Law Unmanned Surface Vehicles and Piracy Identifying the (New) Legal System Caroline Grech

471

Planning Law Article 469A from a Planning Law Perspective Robert Musumeci

484

Press Law Freedom of Speech and the Media: An Absolute or Derogable Human Right?

Vincent de Gaetano

xxx

523

Administrative law

The role of current Maltese legislation in the prevention of traffic accidens in Malta Mariah Mula

Mariah Mula acquired an LL.B (Hons) Degree from the University of Malta in 2016, and a Masters in Advocacy degree in 2017. A former Secretary General of the Junior Chamber of Advocates, she’s currently a practising lawyer with Vella Zammit McKeon Advocates, and is currently reading for a second Masters degree with a specialisation in tort law.

2

VOLUME XXVIIII

1. Introduction

A

ccording to the ‘Energy, Transport and Environment Indicators’ published by Eurostat in 2014, Malta’s road accident fatality record per capita is very good1. Indeed, Malta has maintained a relatively constant level of road fatalities over recent years despite the considerable increase in registered vehicles on the road per annum.2 This is a direct result of a number of road improvements, improved laws relating to driving under the influence, the setting of lower speed limits, mandatory use of seat-belts and crash-helmets, the prohibition of the use of mobile phones during driving, as well as a series of road safety campaigns targeting different users3.

Nevertheless, there is still ample room for further improvements. Over the past decade, there have been over 164 traffic-related fatalities across the Maltese islands.4 Having said that, the majority of severe road accidents are avoidable.

Research highlights that appropriate legislative interventions can create a positive impact to this end. Every case of loss of life due to a road accident constitutes a matter of national policy and highlights the urgent need to take all the necessary measures to address the roots and causes of traffic accidents whilst ensuring that road fatalities are adequately avoided.

2. The Role of Current Maltese Legislation in the Prevention of Road Traffic Accidents in Malta Before delving into the particulars of domestic legislations aimed 1

Eurostat, Energy, Transport and Environment Indicators (European Union 2014)<http://ec.europa.eu/eurostat/documents/3930297/6613266/KS-DK-14-001-EN-N.pdf/4ec0677e-8fec-4daca058-5f2ebd0085e4> accessed on 21 May 2017.

2

Ministry for Transport and Infrastructure, Road Safety Strategy Malta 2014-2024, Ministry for Transport and Infrastructure & Transport Malta (2014)<https://ec.europa.eu/transport/ road_safety/sites/roadsafety/files/pdf/20160108_road_safety_strategy_malta_2014-2024.pdf> accessed on 21 May 2017.

3

ibid.

4

ibid.

3

ID - DRITT

at preventing road traffic accidents, it is important to note that the majority of national accident risk-factors are easily identifiable and may be prevented with adequate measures. Such risk-factors include excessive speeding, driving under the influence of alcohol, lack of use of seat belts, as well as the disregard of pedestrians and cyclists.5 However, it would be imprudent to assume that such road traffic incidents are inevitably always caused by drivers. Indeed, as will be explained throughout this article, all members of society have the legal and moral responsibility to contribute their efforts to reduce the risk of road traffic collisions and incidents. This is mainly achieved by abiding to the rules and regulations set out in our laws. The primary legislation that concerns traffic and road safety in Malta is the Traffic Regulation Ordinance.6 This Ordinance is further strengthened via a number of subsidiary legislations, such as the Breath Test Regulations7, and the Motor Vehicles (Wearing of Seat Belts) Regulations8.

The Highway Code is also deemed to be fundamental in this regard:9 A detailed analysis of the Traffic Regulation Ordinance highlights a number of safeguards enshrined in its provisions, aimed at preventing local road traffic accidents. Indeed, Article 3 starts off by delineating the power of the Minister responsible for transport to make any orders necessary to limit the period of work by drivers of motor vehicles.10 It is an undisputed fact that long hours of driving cause drivers great fatigue and hence, it is important to have a time-limit stipulated so as to grant drivers adequate rest between lengthy work journeys. Article 3(1) starts off by highlighting the rationale behind this provision, namely With a view of protecting the public against the risks which arise in cases where the drivers of motor vehicles are suffering from excessive 5

ibid.

6

Traffic Regulation Ordinance, Chapter 65 of the Laws of Malta.

7

Breath Test Regulations, S.L. 65.16, LN 392 of 2010

8

Motor Vehicles (Wearing of seatbelts) Regulations, S.L. 65.12, LN 200 of 2007.

9

ibid.

10

Traffic Regulation Ordinance (n 6) Article 3

4

VOLUME XXVIIII

fatigue11, this provision goes on to stipulate that the Minister, acting on the advice of the Transport Authority in Malta, may make any order deemed necessary: ….prescribing the continuous periods for which any person may drive or cause or permit any person employed by him or subject to his orders to drive any class of motor vehicle which may be specified in any such order.12 Sub-article (3) of this provision further strengthens the importance of this safeguard by imposing a fine (multa) not exceeding €46.59, on any person acting in contravention of any such order made by the Minister.13 Article 15 of this Ordinance provides for the offence of driving without a licence.14 Sub-article (1) stipulates that any person who drives a vehicle without the necessary licence, or: causes, suffers or permits his car to be driven by a person not duly licensed to drive a ... vehicle, shall be guilty of an offence and shall, on conviction, be liable to a fine (multa) not exceeding ... €232.94 or to imprisonment not exceeding three months.15 Therefore, this is another protective measure encapsulated in this legislation so as to ensure road safety. So much so, that when a person is convicted of any of the offences stipulated under this Article, the Court may also order to ‘disqualify 11

Traffic Regulation Ordinance (n 6) Article 3(1)

12

ibid.

13

Traffic Regulation Ordinance (n 6) Article 3(3); ‘Provided that it shall be a valid defence to

any charge under this article if the person charged proves to the satisfaction of the court that the contravention was due to unavoidable delaying the completion of any journey, arising out 14

Traffic Regulation Ordinance (n 6) Article 15.

15

ibid (n 6) Article 15(1).

5

ID - DRITT

the offender for holding or obtaining a driving licence’16 for a certain period of time regulated by this same provision.

Article 15A is a very important provision since it regulates the situation of driving a vehicle while being unfit to drive: (1) No person shall drive or attempt to drive or be in charge of a motor vehicle or other vehicle on a road or other public place if he is unfit to drive through drink or drugs.

(2) For the purposes of this article, a person shall be deemed to be unfit to drive if his ability to drive properly is for the time being impaired.17 Article 15B complements this above-quoted provision by regulating the situation whereby a driver is apprehended while driving a motor vehicle with an alcohol concentration level in one’s breath, blood or urine, that is found to be above the legally prescribed limit.18 Indeed, the provision states as follows: 15B. (1) No person shall drive, attempt to drive or be in charge of a motor vehicle or other vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit.19 A Police officer can stop any driver on suspicion of driving or attempting to drive under the influence of alcohol or drugs.

Indeed, Article 15C20 enlists the circumstances when a police officer may require a person to provide a specimen of his breath for a breath test and Article 15D21 stipulates the powers of arrest of a police officer in the event of 16

ibid Article 15(2).

17

ibid Article 15A

18

ibid Article 15B

19

ibid.

20

ibid Article 15C

21

ibid Article 15D

6

VOLUME XXVIIII

such person either: failing or refusing to comply with the request of a breath test, or whose result exceeds the prescribed limit of alcohol. In accordance with Article 15E, the police may, in addition to the specimens of breath, also require a specimen of blood or two specimens of urine22. In accordance with Regulation 7(3) of the Breath Tests Regulations, these ‘two specimens of urine required for analysis shall be provided with an interval of one hour between them and the later specimen shall be used for analysis.’23 It is noteworthy that: a person who refuses or fails to provide the requisite specimen as provided under this article or regulations made under this Ordinance shall be guilty of an offence and unless the contrary is proved, it shall be presumed that the proportion of alcohol in that person’s blood exceeds the prescribed limit.24 Articles 15F and 15G of these Regulations provide for the lawful detention of any person required to provide a specimen of breath or body fluid.25 In the former case, such person ‘who consents to such procedure may be detained by the police until such person provides the necessary specimen or until the person is no longer a danger to himself or to others.’26 In the latter instance, a ‘person required to provide a 22

Traffic Regulation Ordinance (n 6) Article 15 E. In accordance with Regulation 6 of the Breath Tests Regulations, ‘[s]pecimens of breath may be required to be provided at or near the place where their provision is requested, or at a Police station, health centre or hospital.’

Moreover, according to Regulation 7(2) and (4), respectively, specimens of blood and urine, ‘may be required to be provided at a Police station, health centre or hospital.’ See . Breath Test Regulations, S.L. 65.16, LN 392 of 2010.

23

Breath Tests Regulations (n 7) Regulation 7(3)

24

Article 15E(4), Traffic Regulation Ordinance, Chapter 65 of the Laws of Malta; ‘Provided that it shall be a defence for such person to prove that his failure to provide a specimen was due to physical or mental incapacity to provide it or because its provision would entail a substantial risk to his health.’

25

Traffic Regulation Ordinance (n 6) Article 15 F and Article 15 G.

26

ibid Article 15F.

7

ID - DRITT

specimen of breath, blood or urine may be detained by the Police until it appears to the police that such person is fit to drive.’27 This further safeguards road safety by ensuring that any suspicious driver who is deemed unfit to drive is not allowed on our roads before there is clear assurance by the Police that he is fit to drive again.

Article 15H then goes on to enlist the punishments that are awarded to those who are convicted of any of the offences stipulated under any of the provisions of Articles 15A and 15B.28 This highlights the deterrent nature of this Ordinance, which not only serves as a regulatory legislation on road safety but also acts as a deterrent to drivers in order to prevent reckless and negligent driving. For the purposes of the above-mentioned provisions, namely, Articles 15A to 15H, Article 15I provides that the prescribed limit of alcohol means 35 microgrammes of alcohol in 100 millilitres of breath; or 80 milligrams of alcohol in 100 millilitres of blood; or 107 milligrams of alcohol in 100 millilitres of urine.29 In accordance with Regulation 5 of the Breath Tests Regulations,30 if a breath test results in less than 50μg of alcohol per 100ml in breath, the person being analysed may ask for blood or urine sample to be used instead.

Article 15J of the Ordinance then provides for the situation of driving through or emerging from a red traffic light.31 Indeed, this Article stipulates that any person who drives a ‘vehicle through or emerges a red light shall be guilty of an offence and on conviction shall be liable to a fine (multa) of €100.’32 This not only serves to protect other vehicles in the road, but also any pedestrians present in the area.

In 27

ibid Article 15G.

28

ibid Article 15H.

29

ibid Article 15I.

addition,

the

30

Breath Tests Regulations (n 7) Regulation 5.

31

Traffic Regulation Ordinance (n 6) Article 15J.

32

ibid.

8

Motor

Vehicles

VOLUME XXVIIII

(Wearing of Seat Belts) Regulations,33 provide for the compulsory wearing of seat belts by both drivers and passengers in a vehicle, as well as, for the restraint of children in such vehicles.

Evidently, through such Regulations, the law envisages the utmost protection for both drivers and passengers alike.

It is important to note that road traffic accidents may also give rise to various criminal charges under the Criminal Code.34 Indeed, as provided under Article 225(1)35, in the case of death of a person involved in a traffic accident, the convicted person may be imprisoned for a term not exceeding four years or be liable to a fine (multa) not exceeding €11,646.87, and may have his driving licence suspended for a period as established by the Court. Moreover, according to Article 225(2), ‘[w]here the offender has caused the death of more than one person or where, in addition to causing the death of a person, the offender has also caused bodily harm to another person or other persons, the punishment shall be that of imprisonment of a term of up to ten years.’

This latter provision was amended earlier this year following a criminal case which led to a large public outcry for a legislative amendment; namely that of Il-Pulizija vs Dorianne Camilleri.36 In this case, the accused was convicted of the involuntary homicide of a 64-year old man and of grievously injuring his 75year old sister, after running them over in Rabat in May 2011.

Indeed, Ms. Camilleri was found guilty of these charges due to her negligence in failing to keep a proper lookout whilst driving 33

Motor Vehicles (Wearing of Seatbelts) Regulations (n 8)

34

Criminal Code, Chapter 9 of the Laws of Malta.

35

ibid Article 225(1)- Said provision provides that:, ‘Whosoever, through imprudence, carelessness, unskilfulness in his art or profession, or non-observance of regulations, causes the death of any person, shall, on conviction, be liable to imprisonment for a term not exceeding four years or to a fine (multa) not exceeding eleven thousand and six hundred and forty- six euro and eighty-seven cents (11,646.87).’

36

1085/2014 Il-Pulizija vsDorianne Camilleri, (Court of Magistrates Criminal Judicature) 15 February 2017.

9

ID - DRITT

and was consequently charged with five years imprisonment, since, at the time of the judgement, this was the minimum term of imprisonment that could be awarded for such an offence.37 The Court of Magistrates also ordered the suspension of her driving licence for five years following the execution of her prison sentence. However, the Court’s decision raised a storm of protest, comparing this case with far more lenient court decisions in similar circumstances.38 Nevertheless, the presiding Magistrate at the time of judgement adhered to the stipulations of the law resulting in a punishment at the lowest end of the scale.39 The reaction to the verdict also gave rise to more than 27,000 people signing a petition requesting a change in the law.40 Ms. Camilleri has since appealed the judgement and is now awaiting the date of her appeal in Court. In line with the legislative changes, the Court now enjoys more discretion when determining a punishment, and Ms. Camilleri will immediately benefit from the change in the law, even though the punishment was different at the time of the incident.41 This is because, in cases of criminal law, the accused always gets the punishment which is most favorable; and hence, in this appellate case, the new law will apply.42 In the case where a person involved in a road traffic accident is charged with the grievous bodily harm of another person which 37

Indeed, the old provision of the law provided that imprisonment rises from 5 to 10 years when the offender causes the death of more than one person or where in addition to causing the death of a person the offender also causes bodily harm to another person or other persons.

38

Matthew Xuereb, ‘Change to traffic accidents punishment: ‘Common sense has prevailed’, Times of Malta (23 March 2017)<https://www.timesofmalta.com/articles/view/20170323/local/ change-to-traffic-accidents-punishment-common-sense-has-prevailed.643231> accessed on 23 May 2017.

39 40

ibid. ibid.

41

ibid.

42

ibid.

10

VOLUME XXVIIII

produces the effects mentioned in Article 21843, the Criminal Code in Article 226(1)(a) stipulates a maximum prison sentence of one year or a fine (multa) not exceeding €4,658.75.44 Article 226(1)(b) lays down a maximum prison sentence of six months or a fine (multa) not exceeding €2,329.37 ‘if the harm is grievous without the effects mentioned in article 218’.45 Sub-article (c) of Article 226 then provides that if the bodily harm is slight, the punishments established for contraventions will apply.46 In all such cases, the Court may also order the suspension of the driver’s licence for a time-period it deems appropriate.

Going back to Article 15H of the Traffic Regulation Ordinance, the law stipulates that any person convicted of driving whilst being under the influence of excessive alcohol or drugs shall be liable: (a) in the case of a first conviction, to a fine (multa) of not less than ... €1,200 or, to imprisonment not exceeding three months, or to both such fine and imprisonment; (b) in the case of a second or subsequent conviction, to a fine (multa) of not less than ... € 2,329.37 or to imprisonment not exceeding six months, or to both such fine and imprisonment.47 Moreover, in addition to such above-quoted punishments, Article 15H(2) also stipulates that in the case of a first conviction, the Court shall disqualify the offender from obtaining or holding a driving licence for a period of not less than six months, or for a period of not 43

Criminal Code (n 34) Article 218.

44

Criminal Code (n 34 ( Article 226 (1)- The said provision provides that ‘Where from any of the causes referred to in the last preceding article a bodily harm shall ensue, the offender shall, on conviction, be liable - (a) if the harm is grievous and produces the effects mentioned in article 218, to imprisonment for a term not exceeding one year or to a fine (multa) not exceeding four thousand and six hundred and fifty-eight euro and seventy-five cents (4,658.75)’.

45

Criminal Code (n 34) Article 226(1)(b)

46

ibid Article 226(c)

47

Traffic Regulation Ordinance (n 6) Article 15H(1)

11

ID - DRITT

less than one year in the case of a second or subsequent conviction.48 The proviso to this sub-article further stipulates that: in the case of a conviction due to a person having been unfit to drive through drink or for an offence under article 15B, [Article 15H(2)] shall apply only where the proportion of alcohol in the breath, blood or urine exceeds the prescribed limit by eight microgrammes or more in the breath or by twenty milligrams or more in the blood or by twenty-three milligrams or more in urine.49 Hence, it is evident that the Maltese legislator established various safeguarding mechanisms in a vast array of domestic legislations so as to ensure the prevention of road traffic accidents and to promote road safety under all circumstances. However, no legislation may ever be foolproof, especially when considering that the law is not static but rather, it is constantly and dynamically changing so as to adapt to modern exigencies in order to be able to withstand the test of time. It is precisely for this reason that one may envisage possible amendments to the current legislations regulating local road traffic, with the aim of increasing road safety and preventing unnecessary traffic mishaps.

3. Possible Amendments to the Current Domestic

Legislation so as to Increase Road Safety

Fatalities and serious injuries should not be deemed to be an inevitable cost whilst using the road.50 One must acknowledge that road accidents will definitely continue to occur on our roads because human errors are inevitable no matter how well-informed and well-instructed drivers and pedestrians may 48

ibid Article 15H(2)

49

ibid.

50

Ministry for Transport and Infrastructure (n 2).

12

VOLUME XXVIIII

be. However, through the fundamental process of educating road users and enforcing road rules so as to promote safe behaviour whilst driving, road safety and accident prevention measures may surely be strengthened. This calls for a more holistic approach to addressing the road safety challenges we are currently facing on the road network.51 Hence, the safety of vehicles, the level of protection of the roads, and the speeds at which we travel, ought to be combined and managed so as to ensure that when collisions or accidents occur, these do not lead to fatalities or grievous injuries.52 This entails a concerted effort to have safer vehicles, to improve the quality of the roads, to improve compliance with legislation and road rules and to promote a road safety culture at all levels of society.53

As was indeed highlighted by the European Commission in its Recommendations for safer roads across EU MemberStates, it would be beneficial to set up a National Road Safety Advisory Council in Malta, consisting of representatives from key Government entities, NGO’s and the private sector that are deemed to be effective stakeholders in road safety.54 The establishment of such a Council is not a novice concept, since it has already been set up in several countries, such as, Tasmania and Australia. This Council would surely serve as an excellent advisory board to the current main transport authority, particularly in relation to road safety legislation and enforcement. It is true that drivers are legally obliged to adhere to traffic regulations and to behave safely on the road. Yet, it must be acknowledged that road safety is a shared responsibility which, in turn, necessitates local government entities, as well as the private sector and the public at large, to work collectively so as to make our vehicles, roads, and drivers safer.

In addition, so as to better promote safe road-user behaviour it would be ideal to introduce harsher penalties, especially when it comes to driving under the influence of alcohol or drugs, and 51

ibid.

52

ibid.

53

ibid.

54

ibid.

13

ID - DRITT

using mobile phones whilst driving. The primary aim of road safety legislation ought to be that of deterring wrong and negligent driving behavior and ensuring adequate enforcement-standards. Hence, harsher sanctions ought to be imposed upon those convicted of negligent driving or driving under the influence of alcohol or drugs so as to further deter wrongful behavior on our roads. There should be a zero-tolerance approach towards driving under the influence and usage of mobile phones whilst driving; and such a stance ought to be reflected primarily through our legislation. Therefore, raising the fine-thresholds and time-periods of imprisonment for any such conviction would surely benefit our society in its battle against negligent road behavior or driving under the influence of alcohol or drugs. Indeed, there is a stronger need to further strengthen the concept of deterrence because many responsible drivers are kept in check by the risk of detection and sanctions (Luna et al, 2004).55

Furthermore, it would surely prove beneficial to increase the number of speed cameras across Malta and enforce heftier fines for over-speeding contraventions. Indeed, a possible legislative proposal would be to have the driving licence of recidivist contraveners suspended for a period of time as deemed suitable by the authorities, after considering the number of over-speeding contraventions that such driver would have committed. This may also be said for the rules relating to the use of seat-belts, with the possible introduction of heftier fines for those who do not abide by such rules.

Taking into consideration the recent increase in the number of motor-cycle related accidents, it would be ideal to specifically cater for motor-cyclists’ road safety rules in a separate legislation, solely aimed at regulating motor-cyclists activities and behavior on the roads, especially when such bikers come across heavy-goods vehicles using the road simultaneously. Indeed, adequate training and education ought to be implemented to educate both motor-cyclists and drivers of such heavy vehicles, especially with regard to the blind spots, so as to ensure that accidents are kept to a bare minimum.

Furthermore, over-speeding sanctions for motor-cyclists ought to be 55

ibid.

14

differently regulated than those of vehicle drivers, with the possibility of introducing harsher penalties for motor-cyclists caught overspeeding on the road.

When it comes to the regulation of traffic flow, it would be beneficial to enact legislation that prohibits the passage of heavy vehicles from using the carriage of other vehicles, and learner drivers from using the arterial and distributor road network from Monday to Saturday (except public holidays) during peak traffic hours.56 This would ensure better traffic control and lead to less traffic congestion and collision problems.

Moreover, it may be argued that it is high time to introduce a Code of Conduct of Pedestrians, so as to minimize fatalities and injuries incurred due to the negligence of pedestrians. Such legislation ought to also address road safety issues for vulnerable pedestrians and road users, such as the elderly and people with disabilities or impaired cognitive functions. This also calls for more pedestrian crossing facilities across the island and harsher penalties for drivers convicted of not observing the rules relating to such crossing facilities.

It is also very important to incorporate health regulations within domestic traffic legislation, so as to ensure that people undergoing medical treatment that may impair vision or proper cognitive function (such as those persons suffering from epilepsy or depression and, thereby, taking anti-depressants or sleeping pills), ought to undertake further driving tests to ensure that they are fit to drive.

Moreover, such persons ought to be medically assessed periodically (for e.g. every three to six months) so as to have their driving abilities re-examined and consequently get certified by a medical practitioner as being fit to drive. Therefore, nowadays, it is a must to have regular and more effective medical check-ups on driving licence holders.

56

ibid.

4. Conclusion When one considers that Malta has no ‘high-speed’ highways and motorways, and that the average driving distance and time is deemed to be much less than that of other European drivers, one may instantly recognize the need to better understand the human, vehicle, and environmental circumstances that surround serious local road traffic accidents.

It is only through gaining a better understanding of such circumstances that we can ameliorate the current situation and strengthen current legislation so as to improve road safety for drivers. Indeed, the reduction of road traffic accidents57 on our islands is a collective responsibility which also gives rise to a joint challenge not only at national or European level, but equally so for all members of the auto industry, and society as a whole58; thereby including each and every citizen in such equation: As the former US President Barack Obama was quoted by the White House Office of the Press Secretary: No person should suffer the tragedy of losing someone as a result of drunk, drugged or distracted driving, but for far too long the danger of impaired driving has robbed people of the comfort of knowing that when they or a loved one leaves homes they will return safely. Impaired driving puts drivers, passengers, and pedestrians at risk, and each year it claims the lives of thousands.

57

Ministry for Transport and Infrastructure (n 2).

58

ibid.

Bio-Ethics

My Patient - The Unborn Human Child

Godfrey Farrugia

Godfrey Farrugia is a family doctor, who is currently serving as a Member of Parliament for the Democratic Party. He is also a former Minister for Health and Government Whip for the Labour Party.

VOLUME XXVIIII

1. Introduction

W

e all agree that a newborn child has a right to life: There is no controversy in that statement. Human beings ’are born free and equal in dignity and rights’ .1 Reproduction is a natural process that occurs after sexual intercourse, but in our era, this statement no longer holds. Assisted reproductive technology has set new grounds and a couple’s infertility has become less of a health issue. Synthetic biology has also opened new frontiers. Mankind has managed to artificially create life from its very precursors, and genetic and chemical2 engineers have even discovered how to eradicate DNA-carrying disease from human embryos. These breakthroughs are legally challenging and herald a new era in medicine.

A well-informed public debate has recently surfaced when the Morning After Pill3 was introduced in the local market by the Medicines Authority and with the announcement that the government is to compliment In Vitro Fertilization with embryo vilification. In the last months, social media has also picked on abortion, gamete donation, and surrogacy. These have made press headlines.

Pregnancy is a state whereby a mother carries an unborn baby in her womb for around 40 weeks.4 Clinically, prenatal care is the 1

Universal Declaration of Human Rights (1948) Article 1- The natural meaning of this clause is

that human beings without distinction are born free and equal in dignity and rights, because as members of the human family they have had that status from the beginning; Dr. John I Fleming and Dr. Michael G Hains, ‘Rights of the Unborn under International law’ (Priests for life) <http://www.priestsforlife.org/library/4729-rights-of-the-unborn-under-international-law> 2

Ian Sample, ‘Chemical surgery’ used to mend harmful mutations in human embryos’ The

Guardian (28 September 2017) <https://www.theguardian.com/science/2017/sep/28/chemical-surgery-used-to-mend-harmful-mutations-in-human-embryos-base-editing?CMP=Share_ iOSApp_Other> accessed 4 March 2018; Maria Muscat, ‘Riċerka biex mard rari jitfejjaq fil-ġuf’ TVM (Malta, 7 October 2017) <https://www.tvm.com.mt/mt/news/ricerka-biex-mard-rari-jit3

Hereinafter referred to as ‘MAP’.

4

The American College of Obstetricians and Gynecologists, ‘Definition of Term Pregnancy’

(Women’s Health Care Physicians, November 2013) <https://www.acog.org/Clinical-Guid-

19

ID - DRITT

management of the mother’s and the unborn child’s wellbeing .5 This starts from fertilization and extends along a continuum up to birth.

This growth and development of the unborn child is part of one’s life cycle, and the age of an unborn child is medically marked by the gestational age or alternatively the fertilization age.

I have spent a lifetime in family practice, and during anti-natal care visits, I have experienced many human dilemmas and issues of life and death for many with a voice and more without it. My intention is to analyse the concept of the right to life of the unborn baby and the rights of the mother, by steering away from religious and political influence, and at the same time present a family doctor’s perspective.

2. Embryology 2.1 When does human life begin?

In recent years, numerous man-made definitions have been introduced attempting to define the moment in which human life begins. As an author of this paper I will go into each and every one of these definitions. .

It is an established genetic and embryological fact that a new human being comes to life at fertilization i.e. conception Various authors have written statements on ‘fertilization’ in embryology books and ance-and-Publications/Committee-Opinions/Committee-on-Obstetric-Practice/Definition-of-Term-Pregnancy> accessed 4 March 2018.

5

World Health Organisation, ‘Realizing the Potential of Antenatal Care: Meeting Expectation in Pregnancy’ (World Health Report, 2005) <http://www.who.int/whr/2005/chapter3/en/index2. html> accessed 4 March 2018- In this report the World Health Organization provides a schedule of medical consultations that provide a comprehensive health care pathway for pregnant mothers and their unborn child by : early detection of ill health or complications of pregnancy, promoting a healthy lifestyle (thus improving health outcomes for mother, unborn child and family), establish a birth plan and prepare for parenting; World Health Organisation, ‘Pregnant Women must be able to access the right care at the right time, says WHO’ (2016) <http://www. who.int/mediacentre/news/releases/2016/antenatal-care-guidelines/en/> accessed 4 March 2018; World Health Organisation, Who Recommendations on Antenatal Care for a Positive Pregnancy Experience (Geneva 2016).

20

VOLUME XXVIIII

papers. Amongst these authors one may mention Marjorie England who holds that ‘the development of the embryo begins at Stage 1 when a sperm fertilizes an oocyte and together they form a zygote’.6 Keith Moore defines fertilization as ‘a sequence of events that begins with the contact of sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid of the sperm and ovum) and the mingling of their chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of a human being’.7 Additionally, he writes that ‘human development begins after the union of male and female gametes or germ cells during a process known as fertilization (conception)’.8 In defining the concept of ‘fertilization’ most authors also delve into the definition of the ‘embryo’. One definition of the latter concept is an ‘organism in the earliest stage of development; in a man from the time of conception to the end of the second month in the uterus’.9 Ovulation precedes fertilization, which occurs within twenty-four hours. If an oocyte is not fertilized, it degenerates.

The moment that a spermatozoon penetrates an ovum10, the nuclei of the haploid sex gametes fuse and a genetically distinct diploid cell with a full complement of DNA, named the zygote, comes to life. This process takes a few hours to complete and initiates a number of selfcontained, intricate cellular processes that will regulate growth and development of the embryo.

A series of mitotic divisions, through a process called cleavage, 6

Marjorie A England, Life before Birth (2nd edn, Mosby Incorporated 1996) 31.

7

Keith L Moore, Essentials of Human Embryology (B.C. Decker 1988) 2.

8

ibid.

9

Walters, William and Singer (eds) Test Tube Babies (Oxford University Press 1982) 160.

10

Philip G Peters, ‘The Ambiguous Meaning of Human Conception’ [2006] 40(1) University of California Davis <https://lawreview.law.ucdavis.edu/issues/40/1/essay/davisvol40no1_peters. pdf> accessed 4 March 2018- From the moment the spermatozoa penetrates the outer wall of the oocyte to the actual fusion of the two nuclei of the spermatozoa and the ovum there is a time lack of a few hours. On penetration the tail and outer coating of the sperm disintegrate and a cortical reaction takes place preventing other sperm from penetrating the oocyte. The oocyte undergoes a second meiotic division producing the haploid ovum and releasing a polar body.

Thereafter the two nuclei fuse to form the diploid zygote. Most embryologists mark the cortical reaction as the moment of fertilization.

21

ID - DRITT

follows, and a morula is produced by day 5. This early development of the embryo consists of a cluster of cells, lined as a continuous sheet of cells. These cells are undifferentiated and totipotent. Through a process known as ‘gastrulation’ a morula changes to establish the basic axes of one’s body and distinct cell lineages are set up. This developmental stage names the zygote a ‘blastocyst’. This consists of an outer cellular layer that eventually gives rise to the placenta and other supporting tissues, a central fluid filled cavity and an inner cellular layer that develops into body tissues. This germinal stage is hallmarked by early growth and cellular differentiation. During this time the embryo would have travelled from the ampulla of the fallopian tube to the fundus of the uterus, where the blastocyst embeds into the endometrium to implant completely by around the twelfth day after fertilization . Further cellular differentiation and formation of the inner core leads to the development of a three germ-layered embryo which terminates by the third week .11 It is from these three layers, the endoderm, mesoderm, and ectoderm, through a process known as histogenesis, that all tissues are formed. Organogenesis, (which is the formation and differentiation of organs) starts around the second week, along with neurulation, which refers to the early development of the nervous system. This is followed by the development of the heart and the circulatory system, the face, neck, and limbs.

Further differentiation of by organogenesis continues up to eight weeks. By this time the ‘embryo’ would have acquired a basic human like form and is referred to as ‘fetus’, and will carry this name to childbirth. This period is biologically described by organ development or by chronological criteria that highlight major occurrences. It is a noted established fact that the growth of a fetus varies from one human being to another, as it is not only dependent on one’s health status but also on the wellbeing of the mother.

This scientific account illustrates that an embryo is genetically unique, biologically human, and has predetermined individual characteristic. More than that, it also shows that a zygote has intrinsic biological properties whose blueprint dictates development and 11

Bruce M Carlson, Human Embryology and Developmental Biology (1st edn 1997) 62-68.

22

VOLUME XXVIIII

growth. These are chemically coordinated in continuity on a stepby-step basis, and in essence, they address when the life of a human being starts and naturally ends. Scientific and medical discoveries over the past three decades have only verified and solidified this truth.

It is therefore scientifically undeniable. A zygote is a unicellular human being, which only needs a proper environment to grow and develop.

So whichever man-made term is used to describe a pregnancy12 or a pre-natal stage of human development, life starts at conception .13 Whether one names the unborn child an ‘embryo’ (zygote, morula, or blastocyst) or a ‘fetus’, does not change the essential nature of what science factually states.

2.2 The thorny issues In the last thirty years, the term pre-embryo14 has been introduced on the hypothesis that a human being does not come into being at fertilization. This period extends between the 10th to the 14th day after fertilization. It coincides with the appearance of the three germinal layers, the conclusion of embryo implantation and the fact that monozygous twins cannot come into being after this stage. Scientifically, the appearance of the germinal layers is not the 12

When a woman consuls a doctor to seek an estimate expected date of delivery is standard medical practice to calculate this by taking the starting point in her pregnancy as her first day of her last period. This denotes the gestational stage. On ultrasonography pregnancy is calculated from fertilisation (ovulation: fertilization occurs within twenty hours of ovulation) and not from implantation. Fertilisation is the event most commonly used to mark the zero point in descriptions of parental development of the embryo or fetus. The resultant age is known as fertilisation age, fetal agree or intrauterine developmental age. According to the American College of Obstetricians and Gynecologist (ACGOG) pregnancy starts at implantation. This is very controversial.

13

The American College of Paediatricians concurs with the body of scientific evidence that human life begins at conception i.e. fertilisation.

14

The term pre-embryo was coined at a time to justify public policy on abortion and human embryo research. This is not a scientific term and has ulterior political connotations. In my opinion this is an illusion. See Lee M Silver, Remaking Eden: Cloning and Beyond in a Brave New World (Avon Books 1997) 39.

23

ID - DRITT

beginning of a human life, but rather its first visible manifestation, and when the genetic blue print of a blastocyst divides into two blastocysts, it simply means that two human beings share the same genetic code.

On the other hand, implantation of the embryo corresponds to that period in time when the female menstrual cycle is interrupted. This is that moment when the embryo embeds completely into the mother’s uterine wall thus establishing a placenta derived from the tissues of the blastocyst and the mother. The secretion of human chorionic gonadotropin maintains the corpus luteum of pregnancy in the ovary, and thus prevents menstruation. Consequently, this suggests that a pregnancy is established when the process of implantation is complete. In my opinion, this assertion is highly controversial and does not go into the merits of when the life of a human being begins.

In this context, it is suggested that the life of the embryo beyond the ‘pre-embryo’ stage is a precursor of a human being or has the potential of becoming a human. The precursors of life are amino acids, which constitute the building blocks of one’s DNA structure.

These have the potential of the biological miracle (the origin of life).

The pre-embryonic concept is scientifically false.

Furthermore, there are those who state that life starts at gastrulation, or when fetal EEG15 patterns appear or when the fetus becomes viable .16 None of these define the neat beginning of when life starts.

The emphasis of when life begins or does not is purely a scientific answer, as life is described as a condition that distinguishes organisms from inorganic objects and dead organisms. In descriptive terms, this is manifested by homeostasis, organization, metabolism, growth, response to stimuli, reproduction and the ability to adapt to one’s 15

Electroencephalography (EEG) refers to electrical activity present in the brain.

16

The start of life may also be stated to be marked when the fetus can live outside the mother’s wound as an ‘ independent’ human being. This is roughly at twenty five weeks, approximately two thirds into a pregnancy. At this stage the newborn can technically survive, however health problems may also be numerous for a pre-term baby. Depending on available medical technology viability may be as low as low as 23 weeks.

24

VOLUME XXVIIII

environment.

Therefore, since zygotes each have a unique DNA and belong to the human species, they deserve the protection and rights of the unborn.

‘Respect for a human person (dignity) should not be based on certain qualities and changes which are acquired or undergone in one’s development process. We ought to protect and respect the human embryo because of its genetic uniqueness existing right from the moment of fertilization.’17From a biological perspective, conception is a well-defined moment, which defines humanity and the right to a life. The Royal Commission on Contraception, Sterilization and Abortion regarded the unborn child as ’one of the weakest, the most vulnerable, and most defenseless forms of humanity’18 and ‘should receive protection’.19 The right to life is an inherent right of every human being. Each human life kicks off at the zygote stage. When life is not viable, nature selectively destroys it. This is what happens when a pregnant woman miscarries or experiences a stillbirth. Research indicates that at least 25% of all embryos never make it through the blastocyst stage and spontaneous abortion occurs without the mothers’ knowledge. It is marked as a prolonged or missed cycle.

As a family doctor, I have endorsed these undisputed scientific facts and shared these truths with patients. As a member of Parliament, I have crossed paths with endless philosophical, political, and legal opinions, and more so, when I was chair of the Permanent Committee of Family Affairs. At this point, I am also sharing insights that arose from an email debate and social media chats, among a number of learned members of society who also hold opposing views.

17

Emanuel Aguis, Problems in Applied Ethics (Malta University Publishers Ltd 1997).

18

Wikipedia, ‘Royal Commission on Contraception, Sterilisation and Abortion’ <https:// en.m.wikipedia.org/wiki/Royal_Commission_on_Contraception,_Sterilisation_and_Abortion> accessed 4 March 2018.

19

ibid.

25

ID - DRITT

2.3 Personhood My difficulty, which I share with many others, arises when the term ‘person’ or ‘personhood’ is used to denote a definite moment in the life cycle of a human being. It is indeed a philosophical question with possible legal and ethical connotations. It seeks to decide who is and who is not a person, and thus aims to establish that someone is a human being but at the same time not a person, even though one is part of the community.

Biologically, human beings are classified as members of the species homo sapiens.20 Trying to define the scientific term ‘human being’ from a philosophical perspective drives a person into a bottomless pit.

The terms ‘human being’ and ‘person’ are not same, as they denote different things in two different specialties .21 . It is best to deliberate the concept of a ‘person’ with an unbiased mindset, so that each and every one of us can decide for oneself.

Gilbert Scott, a prominent development biologist states: ‘The entity created by fertilization is indeed a human embryo, and it has the potential to be a human adult. Whether these facts are enough to accord it ‘personhood’ is a question by opinion, philosophy, and theology, rather than by science.’22 To put it bluntly, various philosophical thinkers have tried to give an answer to the question: When does the unborn child become a person: at conception, at birth, somewhere in between or much later in life?

There a number of schools of philosophical thought on personhood and, amongst them, one may mention John Noonan, Mary Anne Warren, The Social Criterion and Peter Singer. The most 20 Wikipedia, ‘Homo Sapiens’ < https://en.m.wikipedia.org/wiki/Homo_sapiens> accessed 4 March 2018.

21

Sinauer Associates Inc, ‘Chapter 2 Bioethics and the New Embryology: Philosophical, Theological and Scientific Arguments’ (2005) < http://www.sinauer.com/media/wysiwyg/samples/ BioethicsCh02.pdf> accessed 8 March 2018.

22

Wikipedia, ‘Scott F Gilbert’ <https://en.m.wikipedia.org/wiki/Scott_F._Gilbert> accessed 8 March 2018; Gilbert F Scott, Developmental Biology (Sinauer 2016).

26

VOLUME XXVIIII

recent philosophical school of thought is ‘The Gradient Theory’. The latter theory suggests that personhood fits within a spectrum of a variety of degrees. An embryo has less personhood than a fetus, a newborn would have more personhood than both, an infant more than an unborn fetus, a child more still, and so on. Therefore, even if this theory does not deny the personhood of any being, it permits discrimination against others, based upon the level of perceived personhood.

Personally, I think that none of these schools of thought are satisfactory.

I will therefore rephrase my previous question: Let us say that human life begins at conception. Is an embryo, a person?

In this respect, there are two opposing views - those who are deemed to be ‘pro-life’ would answer this question in the affirmative whilst those who are ‘pro-choice’ would reply in the negative. The concept of a ‘person’ is one of the most difficult terms to define such term denoting rights and obligations. It is an argument that has been ongoing for decades .23 Charles Taylor , amongst various others who share the same line of thinking, define personhood as: ‘A person is a being who had a sense of self, has a notion of the future and past, can hold values, make choices; in short, can adopt life-plans.

At least, a person must be the kind of being who is capable of all this, however damaged these capacities may be in practice.’24 This statement defines ‘personhood ‘as a function of feelings, awareness, experiences, and behavior. In this approach we become and may cease to be a person, while we remain a human being all the time. It follows that since the unborn has none of these capacities, they are not a person, and killing the unborn is not seriously wrong .

23

https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/Personhood.html 24

Wikipedia, ‘Charles Taylor ‘ <https://en.m.wikipedia.org/wiki/Charles_Taylor> accessed 8 March 2018.

27

ID - DRITT

This infers that an embryo and a fetus do not have a right to life.

On the other hand, science states the contrary. Similarly, it does not make sense to say that a person comes into existence when the functionality of a human is manifested. Good sense distinguishes between what one is and what one does, between actual and function, thus between being a person and functioning as a person.

Personally, I believe that defining ‘personhood’ in terms of function is inaccurate and wrong, and this is why ‘personhood’ has ended up evolving into a subjective topic that also varies cross-culturally.

A human being is a person because one is actually a person, and not because one functions as a person. Obviously, this capacity to function develops gradually in a human’s life and continues throughout one’s lifetime, as all persons have the potential to grow emotionally and intellectually.25 Likewise, an embryo is a human and a person, who has a natural inherent capacity, and will gradually develop this functionality.

All human beings are actual persons and it is their functioning that is potential. The embryo is not a potential person but a person with much potential.

Our embryonic beginning, as members of the human species, starts off a process of development of a person, and not a process of development into a person .26 The difference between the individual in its adult stage and in its zygotic stage is not one of personhood but of development.

Life should be protected because it is the right thing to do.

Humanity dictates it.

25

Agius (n 16).

26

Francis J Beckwith, Is an Unborn Child a Person’ (Kindly insert Publication details since I could not find this book); Robert C Cetrulo, Constitutional Personhood of the Unborn Child (Kindly Insert Publication details since I could not find this book) Peter Kreft, Human Personhood begins at Conception (Castello Institute of Stafford 2000); Stephen D Schwarz, The Moral question of abortion’ (Loyola University Press 1990).

28

VOLUME XXVIIII

Can the right to life be gauged by a measure of convenience?

3. The Right to Life The right to life is a principle based on the belief that a human has the right to live and should not be killed by another person.

As humans, we condemn war because it causes death and destruction; we condemn murders, we condemn animal suffering, we are intrinsically programmed to defend and fight for life. This forms part of one of the codes of natural justice.

Natural justice is not the result of religious belief or moral standards, but rather, it is a result of what nature and humanity have intrinsically created us to be: human beings with the dignity of a person.

Natural laws are different to man-made laws, which are bestowed onto a person by a given legal system. These rights can be modified, repealed, and restrained. Natural rights are not dependent on the laws or customs of any particular government. These are absolute.

The right to life is a fundamental human right and stands above any other man-made law27 and ultimately, our laws are defined by this form of justice.

Can we pick and choose to whom we apply or not, the right to life?

There are various relevant laws and international treaties which deal with the fundamental human right to life. It is pertinent to delve into each and every one of them.

3.1 United Nations 27

Wikipedia, ‘Natural law’ <https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/Natural_law.html> accessed 5 March 2018.

29

ID - DRITT

It is universally agreed fact that the United Nations protects the unborn child. The right to life is a principle of civilization and its universal denial would fail to recognize the universal dignity of a human being.

The relevant international declarations and conventions are the following: 1. The Vienna Convention of the Laws of Treaties 196928 which is a treaty relating to the manner in which international law applies between states. Protection of life before birth could be considered as jus cogens;29 .

2. The Universal Declaration of Human Rights 1948;30, 3. The International Covenant on Civil and Political Rights 1966; 31 4. The Convention on the Prevention and Punishment of the Crime of Genocide 1948;32 5. The Declaration of the Rights of the Child 195933, which protects the rights of the unborn in varying context but clear terms.

3.1.1 The Universal Declaration of Human Rights This declaration was adopted by UN General Assembly and has inspired all other human rights conventions.

Its preamble speaks of ‘equal and inalienable rights of all members 28

Hereinafter referred to as the ‘VCLT’.

29

A peremptory norm is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.

30

Hereinafter referred to as the ‘UDHR’.

31

Hereinafter referred to as the ‘ICCPR’.

32

Hereinafter referred to as the ‘CPPCG’.

33

Hereinafter referred to as the ‘DRC’.

30

VOLUME XXVIIII

of the human family’. Article 3 states ‘Everyone has the right to life, liberty and security of person’34 whilst Article 635 declares that ‘Everyone has the right to recognition everywhere as a person before the law’. Article 7 asserts: ‘All are equal before the law and are entitled without any discrimination to every protection of the law.’36 These affirmations are not qualified as age-limited or limited to the born, and it would be difficult to understand them as not including the living-but-not-yet-born. The phrase ‘all members of the human family ‘ can only mean all members of the human species and ‘everyone’ means ‘every human being’, and so one should be protected as such .37 Furthermore, a close look at the travaux preparatoires of the Declaration confirms this.

3.1.2 The International Covenant on Civil and Political Rights Article 6 (1) provides that ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’38 The statement is explicit and singles out the right to life as ‘inherent’ to everyone making it supreme.

The Covenant incidentally prohibits death penalty for pregnant women out of respect for the life of the child.

3.1.3 The Convention on the Prevention and Punishment of the Crime of Genocide Article 2 defines the ‘odious scourge’ of genocide to include ‘killing 34

Universal Declaration of Human Rights, Article 3 <http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> accessed 5 March 2018.

35

ibid Article 6.

36

ibid Article 7.

37

Patrick J Flood, ‘Does International Law Protect the Unborn Child?’ Life and Learning XVI <http://www.uffl.org/vol16/flood06.pdf> accessed 5 March 2018.

38

International Covenant on Civil and Political Rights, Article 6(1) <http://www.ohchr.org/en/ professionalinterest/pages/ccpr.aspx> accessed 5 March 2018.

31

ID - DRITT

members of the group’ and ‘imposing measures intended to prevent births within the group’.39 This portrays a clear acknowledgement to the right to life of the unborn.

3.1.4 The Declaration on the Rights of the Child In its preamble it states ‘Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’, it ‘calls on national Governments to recognize these rights and strive for their observance by legislative and other measures progressively taken...’40.

Thirty years after the Declaration on the Rights of the Child, the UN adopted The Convention of the Rights of the Child 1989.41 This is a human rights treaty, which sets the civil, political, economic, social, health, and cultural rights of children regardless of race, disability, and religion. The only Member States that did not ratify this Convention are US and Somalia.

The Convention defines the child’s right to life, a nationality, an identity, to be heard, to freedom of thought, religion and to health.

However, it is silent on the age at which childhood begins, and unclear whether the rights apply to the unborn.

Furthermore, the Convention defines a child as ‘Every human being below the age of 18 years.’42 This ambiguity has given rise to diverse opinions. One must remark that some States already had laws permitting abortion before ratifying the 1959 Convention and this is why the UNCRC is circumstantial on the rights of the unborn.

39

The Convention on the Prevention and Punishment of the Crime of Genocide, Article 2 <https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf> accessed 5 March 2018.

40

Declaration on the Rights of the Child <https://www.unicef.org/malaysia/1959-Declarationof-the-Rights-of-the-Child.pdf> accessed 5 March 2018.

41

The Convention of the Rights of the Child <http://www.ohchr.org/EN/ProfessionalInterest/ Pages/CRC.aspx> accessed 5 March 2018.

42

ibid Article 1.

32

VOLUME XXVIIII

The authors of UNCRC ‘have failed the children they pledge to protect’ as the minimum age of the child, in the legally binding sections of the Convention, is open-ended. ‘In failing to do so, the authors have done a grave disservice to children at a time in their growth and development when they are most vulnerable and in need of protection.’ The authors of the Convention refer to the special care and protection requirements of the child both before and after birth in its preamble and in various articles throughout. How can one separate the wellbeing of the unborn from that of the born child? One may note that special provisions exist which protect the vulnerable children of refugees and disabled. It is the view of many authors that additional provisions should have protected the unborn from unnatural termination and harm.43 If one applies the VCLT and the DRC, which forms the basis of the CRC, the UDHR and the ICCPP the rights of the unborn are undeniably not excluded .44 Many authorities claim that the words ‘every human being’ reaffirm this status. To state that the International Community, in drawing up the CRC,45 excluded the unborn, is to ignore the universally agreed human rights instruments.

In recent years, the raison d’etre behind the declaration in support of the unborn started being challenged. There is a notable change in attitude. Certain social norms have changed, and once individual values change and are collectively shared, these may lead to a change in the very conduct of society. It is apparent that in a globalized society, people are influenced cross-culturally, to an extent that 43

Colleen D’Orsay Wintermans, ‘The issue of Feta Rights in Canada’ (Canadian Children’s Rights Council, 25 November 2005) <https://canadiancrc.com/Newspaper_Articles/Issue_Fetal_Rights_Canada_Wintermans_25NOV05.aspx> accessed 5 March 2005.

44

Dr. John I Fleming and Dr. Michael G Hains, ‘Rights of the Unborn under International law’ (Priests for life) <http://www.priestsforlife.org/library/4729-rights-of-the-unborn-under-international-law> accessed 5 March 2018.

45

Declaration of the Rights of the Child was proclaimed by General Assembly Resolution 1386(XIV) of 20 November 1959. This was the basis of the Convention of the Rights of the Child adopted by the UN General Assembly 30 years later on 20 November 1989. The Convention on the Rights of the Child entered into force on 2 September 1990.

33

ID - DRITT

certain norms that were acknowledged a few decades ago are not conformed to in this day and age. We have become a personalized society. Personally, I believe that principles do not change because new social norms dictate so.

In a testimony at the Australian Senate Standing Committee,46 a heated cross examination followed, wherein it was stated: that the evidence is ‘incontrovertible’ and ‘human rights for the unborn children, having been recognized right from the beginning, how can it now be de-recognized. They certainly cannot be de-recognized by re-interpretation through a 21st century ideological bias seeking to justify current laws that accommodate the appalling notion that mothers have ownership and disposal rights over their unborn children’.47 The difficulty arises when the legal protection of the unborn conflicts with the rights of a pregnant teenager. Under the CRC, the rights of a pregnant teenager are interpreted as being superior to those of the unborn .48 Finally under CRC, it is the sovereign State that retains the power to decide what prenatal legal protection is adopted.

It is evident that the idea that the unborn child is not a person and that the unborn child does not hold rights is incorrect. The Universal Declaration protects the human rights of all without any distinction whatsoever, including those of the unborn.

Malta is signatory to all cited UN declarations. I think that discrimination on the basis of age, personhood, status, and disability are all examples of unjust discrimination, including when they are 46

Senate Standing Committee on Legal and Constitutional Affairs Human Rights Bill Inquiry ‘Do these rights apply to the unborn? <http://www.aph.gov.au/DocumentStore.ashx?id=d7855d8d-7b49-4769-8477-f1ec2f681e9f> accessed 5 March 2018.

47

ibid.

48

Abby F Janoff, ‘Rights of the Pregnant Child vs. Rights of the Unborn under the Convention on the rights of the Child’ [2004] 22 (163) Boston University International Law Journal < http://www.bu.edu/law/journals-archive/international/volume22n1/documents/163-188.pdf> accessed 5 March 2018.

34

VOLUME XXVIIII

applied to unborn children.

3.2 European Union49, Council of Europe and the Courts of Justice50 Protection and promotion of children’s rights is one of the objectives of the European Union. It is guided by the principles set out in the UNCRC and is ratified by all EU Member States. Moreover, Article 3(3) of the Lisbon Treaty promotes the protection of children, as does the Charter of Fundamental Human Rights of the European Union, which applies to all EU institutions as well as all Member States.51 All policies and actions with an impact on children are designed, implemented, and monitored in line with the best interests of the child.52 However, the EU does not go into the merits of the rights of the unborn, because the right to life does not extend under Article 2,41 of the European Convention of Human Rights 1959 (ECHR) .53 The unborn have no explicit rights. Under EU Law, the fetus is generally regarded as in utero of the mother and thus its rights are held by the mother .54 However it is to be noted, that the EU did legislate against human cloning and, thus, it follows that indirect recognition has been given to the embryo.

In 2002, the European Parliament adopted a resolution, the so49

Hereinafter referred to as the ‘EU’.

50

Hereinafter referred to as the ‘CJEU’.

51

Charter of Fundamental Rights of the European Union [2000] OJ C364/1.

52

Anne Van Lancker, ‘Report on Sexual and Reproductive Health Rights’ (European Parliament, 6 June 2002) <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A5-2002-0223+0+DOC+XML+V0//EN> accessed 5 March 2018.

53

The European Convention on Human Rights (ECHR) protects the human rights of people in 47 states that belong to the Council of Europe. Its full title is the ‘Convention for the Protection of Human Rights and Fundamental Freedoms’. Since its adoption in 1950 the ECHR has been amended a number of times and supplemented with many rights in addition to those set forth in the original text. It rules on individual or state applications alleging violations of the civil and political rights.

54

Asim Kurjak and Frank A Chervenak (eds), Textbook of Perinatal Medicine (2nd edn CRC Press 2006) 218.

35

ID - DRITT

called Anne van Lancker Report, on Sexual and Reproductive Health and Rights.55 Although not legally binding, it recommended better access to safe and legal abortions, and to end penalties for women having had illegal abortions. On its part, the EU does not have the remit to legislate on abortion, nor does it have any competence to make such laws. However, a common EU policy on abortion has been sought even though these attempts have failed.

In 2008, the Council of Europe applied further political pressure and declared that abortion should be legal and accessible for all women in Europe and invited Member States to decriminalise abortion.

56 Both the European Court of Human Rights57 and the CJEU rule on human rights issues. Many a times, Article 2 ECHR (Everyone’s right to life shall be protected by law) and 8 ECHR (‘everyone has the right to respect for his private life’) of the European Convention are both put on the justice weighing scales, and they rank as the most fundamental provisions.

The CJEU, is the highest Court of the European Union which interprets EU law and ensures its equal application across all EU member States.

A notable judgement of the Grand Chamber is Oliver Brüstle v Greenpeace eV58, wherein the said Court held that ‘in the context of patent law, the legal protection stemming from the dignity of the human being starts from the moment of conception and the earliest embryonic phase, since ‘fertilisation is such as to commence the process of development of a human being’.....’ The ECHR protects the rights and guarantees set out in the Convention but has no authority to impose relevant laws on EU Member States. Up to this day, the court has never revealed a position on the legal status of the unborn.

55

Van Lacker (n 50).

56

Wikigender, ‘Abortion in Malta’ <https://www.wikigender.org/wiki/abortion-in-malta/> accessed 5 March 2018; Martin Scicluna, ‘Pro-choice on Abortion’ Times of Malta (18 October 2017) <https://www.timesofmalta.com/articles/view/20171018/opinion/Pro-choice-on-abortion-Martin-Scicluna.660658> accessed 5 March 2018.

57

Hereinafter referred to as the ‘ECtHR’.

58

C-34/10 Oliver Brüstle v Greenpeace eV.[2011] ECR I-9849.

36

VOLUME XXVIIII

There are various notable judgements with respect to pregnant mothers and the right to life. One may, for instance, mention the case of Paton v United Kingdom. In this particular judgement, an abortion carried out in the tenth week of pregnancy was not condemned. The ECtHR ruled out the fetal right to sue the mother.

It was decided that the life of the fetus is ‘intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman’.59 Other cases include the following:

3.2.1 Case of H. v. Norway60 The claimant challenged the order whether the MAP is abortive and if the fertilized ovum has a right to life under Article 2 of the Convention.

3.2.2 Case of Vo v. France61 Vo presented for a medical examination scheduled during the sixth month of pregnancy. On the same day, at the same time and at the same hospital, another woman with the same surname was due to have an intra-uterine coil removed. Due to a mix-up also caused by the fact that Vo was unable to communicate in French properly, the gynecologist pierced the applicant’s amniotic sac, making a therapeutic abortion of the fetus unavoidable. The judgement delivered did not express a clear opinion on the status of the fetus. An opportunity was lost. One must note that the European Convention does not expand explicitly on the scope of Article 2 as applied to unborn children .

59

Paton v UK App 8416/78 (ECtHR, 13 May 1980).

60

H v Norway App No 51666/13 (ECtHR, 17 February 2015).

61

Vo v France App No 53924/00 (ECtHR, 8 July 2004).

37

ID - DRITT

3.2.3 Case of A,B and C v Ireland62 Ireland failed to provide an accessible and effective procedure by which women can establish whether they qualify for legal abortions under Irish law. Applicants had travelled to England, as they believed they would not have been allowed an abortion in Ireland. C also believed that her pregnancy may have been life threatening. This judgement confirmed that applicant C’s privacy rights were violated.

The decision is significant on as a court decision-making and on the notion of European Consensus. Ireland eventually remedied by drafting legislation.

3.2.4 Case of P and S v Poland63 The case involved a fourteen-year old child who was pregnant and raped. The said child wanted to have an abortion, however, she was humiliated, manipulated, and harassed in her quest to obtain a legal abortion.

This is a ground-breaking case in relation to sexual and reproductive rights of adolescents and their right to self-determination in matters of reproductive health.

3.2.5 Case of R.R v Poland64 A pregnant woman was deliberately refused genetic tests so that she takes an informed decision when severe abnormality was suspected in the fetus. The infant was born with Turner’s syndrome. This judgement favours women’s reproductive health and rights .

To sum up, the European human rights system is characterized by uneasy relations among the three sources on human rights law: the 62

A,B and C v Ireland App No 25579/05 (ECtHR, 16 December 2010).

63

P and S v Poland App No 57375/08 (ECtHR, 30 October 2012).

64

R.R v Poland App No 54729/00 (ECtHR, 2 March 2010).

38

VOLUME XXVIIII

national law of member states, the ECHR, and EU law.

One must remark that the judgements of the ECHR are not binding for Malta, as it is our Constitution and laws that define us.

Chapter 319 of the Laws of Malta65 has to be amended in order to enforce such measures on Malta in considering its obligations as a member state. There may be many obligations under international law which influence national law. However, it is hard to imagine a more neglected area of human rights discussion in the European Union than the rights of the unborn (including civil ones).

3.3 Organization of American States The Organization of American States66 was founded in 1948 and is a regional organization that has a membership of thirty-five states. Said states are bound by an OAS Charter and by the American Declaration on the Rights and Duties of Man. A number of human rights treaties have been adopted, one of which is the American Convention on Human Rights.67 Article 4.1 of the latter Convention explicitly applies to unborn children: Every person has the right to have his life respected.

This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily 65

European Convention Act, Chapter 319 of the Laws of Malta.

66

Hereinafter referred to as the ‘OAS’.

67

American Convention on Human Rights (1969) <http://www.cidh.oas.org/basicos/english/

basic3.american%20convention.htm> accessed 5 March 2018- The bodies responsible for overseeing compliance are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights of OSA. US is not signatory to the convention. Canada and some Barbados English speaking countries did not ratify. Mexico ratified with reservation to clause 4.1. For further elaboration on clause 4.1 see Alvaro Paul, ‘Controversial Conceptions: The Unborn and the American Convention on Human Rights’ [2011] 9(2) Loyola University Chicago International law Review <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1776922> accessed 5 March 2018.

39

ID - DRITT

deprived of his life.68 This is in sharp contrast to the European Convention. It is the only international treaty that specifically tackles the right to the unborn in crystal clear terms and recognizes fetal rights.

The right to life precedes any other fundamental right and the quality of life we lead. ‘Unless the State can guarantee the right to life then there are no meaningful rights to freedom or to security of person’69 .We are all equal in dignity and rights, irrespective of one’s status. Article 1 of the 1948 UDHR70 and Article 1 of the 2000 EU Charter71 refers to a human being’s dignity in very explicit terms.

Dignity is not only a fundamental right in itself but constitutes the real basis of fundamental rights.

4. Malta’s accession into the EU On its accession into the EU, Malta negotiated a protocol72 which states ‘Nothing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in the territory of Malta of national legislation relating to abortion’ .73

68

ibid.

69

Flood (n 37).

70

Universal Declaration on Human Rights (n 30) Article 1.

71

European Charter (n 51) Article 1.

72

Wikigender (n 56)- A Protocol is a legally binding instrument that is enforceable in a court of law, including the European Court of Justice. The wording of this Protocol clearly ensures that in any case of possible conflict between EU law and Maltese law or jurisprudence on the issue of abortion, Maltese law will prevail.

73

Sharon Spiteri, ‘Abortion to remain illegal in Malta after EU entry’ Euobserver (22 December 2002) <https://euobserver.com/enlargement/8869> accessed 5 March 2018.

40

VOLUME XXVIIII

4.1 Maltese Law Maltese Law specifically and very clearly refers to the unborn child as a person and a recipient of rights. This means that the unborn, for the purposes of such law, will be seen to have the same rights as minors 74 In our legislation, the unborn child is a person, and the best interest of the child 75 is above the interests of all, including that of the parents. This means that the rights of the born or unborn child supersede those of one’s parent/s.

This infers that, for pregnant women, there are two sets of rights and these are: her rights and those of the unborn child. It is not a question of balancing rights as in an equation. Those of the unborn in Maltese law are absolute, as our legal system is not centered on the mother, with the embryo and fetus treated as part of.

4.2 Relevant laws and practice 74

The age of maturity is legally recognized as age 18 (This is a man-made arbitrary delineation.

It was once 21). It is that age at which a person can exercise one’s civil rights and hence, have full autonomy. A person younger than 18 is legally recognized as a minor by Article 157 of the Civil Code or recognized as a child, as is also defined by United Nations Convention on the Rights of the Child. In Maltese law there is no legal definition of childhood (or adolescence).

75

The Children and Young Persons Protection Act outlines who has parental authority / re-

sponsibility to safeguard the best interest of the child. This includes: •

A mother always has parental authority/ responsibility for her child.

•

A father only has this authority / responsibility if he is married to the mother when the child is born or has acquired legal authority for his child by jointly registering the birth of the child with the mother or a parental responsibility agreement with the mother is set or a parental responsibility order, is made by court.

•

Parent/s by law have full authority for their children who are under 18 years. They are responsible to give consent in support of their children’s wellbeing as they have an obligation to safeguard their best interests. Parents rights do not exist other than to safe guard children’s best interest. This parental authority is not absolute, but naturally diminishes, as a child grows older and matures physically, mentally and socially. It ultimately settles down to one of parental guidance and moral support.

41

ID - DRITT

The Constitution of Malta protects the right to life of a person in Article 33. In 2005, the government of the time, had proposed that the law prohibiting abortion in Malta be entrenched in the Constitution.

The proposal had stalled because of the non-position held by the Labour Party, the opposition at the time.

The personhood of minors and unborn children are explicitly mentioned in a number of local laws, which may be cited in civil, criminal, health care, and employment laws. In Malta’s domestic laws, there are no exceptions, no compromises, and no excuses in protecting human life.

4.2.1 Article 9H of The Commissioner for Children 2003 Chapter 462 of the Laws of Malta It is the function of the Commissioner for Children ‘to promote the highest standards of health and social services for women during pregnancy and to promote special care and protection, including adequate legal protection, for children both before and after birth’.

This statement is very similar to the Universal Declaration of the Rights of the Child.

4.2.2 Article 2(ix) of The Domestic Violence 2006, , Chapter 481 of the Laws of Malta The child conceived but yet unborn is ‘a member of the household’ and is to be protected by the domestic violence law from ‘any’ type of violence.

4.2.3 Embryo Protection Act, L.N. 455 OF 2012 This Act provides for the protection of human embryos and other ancillary matters.

42

VOLUME XXVIIII

4.2.4 Healthy Lifestyle Promotion and Care of NonCommunicable Diseases Act Chapter 550 of the Laws of Malta Article 5(2)(e) The Minister responsible for Health, in consultation with the Council, has the power to make regulations to cater for the education of healthy lifestyles “for persons of all ages, from intrauterine life to old age.

4.2.5 Article 4(b) of the Occupation Health and Safety (Promotion Act), Legal Notice 91 of 2000 Protection of Young Persons at Work Places Regulation.

Workers must not be ‘exposed to toxic physical, biological or chemical agents ‘ that cause heritable genetic damage, harm to an unborn child or which in any other way chronically affects human health’.

4.2.6 The Civil Code Chapter 16 of the Laws of Malta.

This refers to the unborn both as a person and a recipient of rights.

A curator ad ventrem is appointed to take care of the proprietary rights of the unborn person and under Article 33(5)76 ‘ persons who are not yet conceived’ at the establishment of a foundation still have the right to be named as beneficiaries, or form part of a class of beneficiaries, even though this entitlement would only be operative upon birth.

4.2.7 Criminal Code The Criminal Code Chapter 9 of the Laws of Malta under title of Abortion, and of the Administering or Supplying of Substances Poisonous or Injurious to Health protects the unborn person by: 76

Civil Code, Chapter 16 of the Laws of Malta, Article 33(5).

43

ID - DRITT

- Articles 241 to 243A77 ban and punish all cases of abortion by referring directly both to the health care professional who procures the act and to the woman who undergoes the act.

- Article 24478 refers to the malicious administration of toxic substances with the intent of harming ‘another person’. In my opinion, this includes illicit drugs and chronic alcohol misuse.

- Article 244A79 refers to that situation where a person whose wellbeing is ‘afflicted by, any disease or condition knowingly transmits, communicates or passes on such disease or condition to any other person not otherwise suffering from it’. Debatably, this may include sexually transmitted disease that are transmitted at child birth like HIV. - Article 248A80 refers to the trafficking of persons for the purpose of exploitation in the production of goods or provision of services this including prostitution, pornography, and retrieval of organs.

Up to this day, there is no judge or group of judges in any Court of law in Malta that have disregarded the right to life and good health of unborn child.

A very recent case law that affirms embryonic and fetal rights is Kaczmarek vs Antonel Dobre.81 The judge held that the child, unborn at the time of his father’s murder, may sue the aggressor for damages.

77

Criminal Code, Chapter 9 of the Laws of Malta, Articles 241-243A.

78

ibid 244.

79

ibid 244A.

80

ibid 248A.

81

Kaczmarek Marta f’isimha proprju u in rappreżentanza ta’ binha minuri Jakub Osama Kaczmare vs Antonel Dorbe, First Hall (Civil Court) 22 September 2016.

44

VOLUME XXVIIII

4.3 An immediate amendment There is one legal lacuna that has been overlooked for a long time and which I feel quite strong about. Rape is not only a sexual abuse but also a power abuse, whose basis is a sexist culture where men are always at the helm. I am of the opinion that it is our positive obligation to punish rape, to investigate rape cases and to provide adequate protection, which we do., However, we must also ascertain that civil legal support is available to both mother and child.

Through a Private Members Bill, I have proposed an amendment that addresses Article 150 of the Civil Code82 which is a cessation ipso jure, and may be amended in the best interest of the child and mother.

This does not in any way entail the elimination of the responsibility of the perpetrator to provide maintenance to the child and of the right of the child to be the eventual heir, except where the mother or the child objects to these rights.

One final observation is that up till now political parties have stated that they are against the introduction of abortion. Let us hypothetically assume that the Criminal Code provisions on abortion are amended and abortion is decriminalized, In my opinion this will not conform to our Constitution and any amendments in this effect will be annulled by court.

5. Me and my patients... and my practice Family practice has been my life, and I have always considered myself a man who enjoys caring for others - a lifesaver. It is a profession with a mission among people from all walks of life and ultimately, one’s patients inevitably may become one’s acquaintances.

Throughout these years, I have professionally experienced all sorts 82

Civil Code, Chapter 16 of the Laws of Malta, Article 150

45

ID - DRITT

of wellbeing problems, the most challenging being those regarding sexuality, sex, and reproductive health.

Pregnancy is by far a positive experience. The relationship between a pregnant mother and the unborn child is unique and unlike any other. Clearly, the health, growth, and development of the unborn child have a great impact upon the health and quality of life of the child at birth and beyond. Because of this, the delicate balance between the rights of the mother and the rights of the unborn (in my practice, parents refer to the unborn by the name, ‘baby’) at times is very difficult indeed.

I would say, that when I worked 24/7, a minimum of three female patients each month would have visited me out of fear that they may have become or fell pregnant. The circumstances would vary from those whose husbands did not respect and finished their needs inside, others whose father or mother made them ‘work’ for money, the inexperienced HIT positive teenage who was still in school, a pre-marital pregnancy, getting pregnant in an out-of-marriage affair, women who had casual unprotected sex or even that woman who was raped. Worst still, are circumstances when a fetal malformation is detected on ultrasonography during a prenatal visit. No matter how professionally prepared one is, these doctor-patient relationships are difficult and emotionally highly charged. Such consultations call for empathy. Special circumstances require additional comprehensive support to be of added value to ones wellbeing. The mental, social, and family distress on women with unwanted pregnancies may be enormous and pregnant sensitive decisions call for competent and compassionate health systems management.

Worst still, pregnancy is commonly being perceived not as a natural state of a woman’s wellbeing but as a pathological state. This trend among pregnant mothers is alarmingly high.

As I have previously stated, these are issues of life and death for many with a voice and more so without it. Who am I to judge? Who am I to imprison a woman’s psychic or to resort to senseless killing of lives or self? I have always endeavored to protect life, not by 46

VOLUME XXVIIII

condemnation but by education and accessible support. Ultimately, I am obliged to help pregnant women respect and nurture life. After all, this conforms to the medical profession’s Hippocratic Oath83 and to the Medical Council’s Ethics of Medical Practitioners: ‘ A doctor must always bear in mind the importance of preserving life from the time of conception till death.’84 Most of the intriguing ethical issues in medical practice involve the beginning of human life.85 These may include: • Contraception to prevent pregnancy or the Morning After Pill; Assisted Reproductive Technology when used for infertile couples; Prenatal Genetic Screening to determine if the unborn suffers of a genetic abnormality (procedure is not available in the National Health Service - some tests are performed privately, others seek assistance abroad); Therapeutic abortion and late termination of pregnancy (abortion is illegal in Malta yet a few female patients resort to this abroad); • Pre-term or small for dates neonates often compromised by severe congenital abnormalities; and Research and experimentation on the unborn child including genetic and chemical engineering (This is illegal in Malta).

Medicine and health care are a living science and as their horizons are unpredictable, medical ethics faces an unlimited challenge.

6. Medical consent and conscientious objection Medicine is a science and an art. Science deals with what can be observed and measured, and a competent physician recognizes the 83

World Medical Association, ‘WMA Declaration of Geneva’ <https://www.wma.net/policies-post/wma-declaration-of-geneva/> accessed 6 March 2018.

84

World Medical Association, Medical Ethics Manual (3rd edn) <https://www.wma.net/ wp-content/uploads/2016/11/Ethics_manual_3rd_Nov2015_en.pdf> accessed 6 March 2018.

85

ibid.

47

ID - DRITT

signs of illness and disease and knows how to restore good health.

The art of medicine involves the application of medical science and technology to individual patients.’

For any consultation to proceed, consent has to be given by the patient. Once this is granted, confidentiality has to be guaranteed. In Malta there is no legislation that defines a doctor-patient relationship and consent for a medical procedure, although in practice, these standards are upheld by the profession’s medical ethics.86 The age of medical consent has been lowered from eighteen to sixteen years of age by a Private Members Bill, which I had presented in the Maltese Parliament.87 Once a person is eighteen-years old,, no other person can give consent on such person’s behalf. If an adult patient is incapacitated or possesses a form of infirmity that would not allow such to take decisions for himself, , a clinician may decide the health outcome on behalf of the patient’s best interest. In a way, this kind of consent may be seen as a contract, as an obligation created between two persons.88 The principle of consent is an integral part of medical ethics and international human rights.

86

Consent is a role exercised by the healthcare professional who is directly responsible for a patient ‘s current treatment. Consent may be given: verbally – for example, by saying they are ready to have an X-ray ; in writing – for example, by signing a consent form for surgery.

Irrespective of the patient’s age a health care profession must always receive permission from the patient or ones parent/ guardian before any type of medical examination, investigation or treatment is administered.

87

This Private Members Bill amended the Health Act. As a consequence young patients may consult a health care professional without the permission of their parents or guardians. This recognizes that, sixteen and seventeen year olds would have reached a state where they are intellectually mature to understand fully all options presented, questions put to them, and in their best interest take a decision to safeguard their well-being in all health issues. Exceptions are also noted. This amendment has facilitated access to all public and private health care services.

It is a measure which will be a key factor to deal with preventable lifestyle diseases at a much earlier entry point and will therefore register more best practices in lifestyle modifications. Poor lifestyle choices such as smoking, alcohol misuse, poor diet, lack of physical activity, and inadequate relief of chronic stress are key contributors in the development and progression of preventable chronic diseases. The latter include obesity, type 2 diabetes mellitus, hypertension, cardiovascular disease, and several types of cancer. Undoubtedly health issues like health and safety, sports activities, drug misuse, schooling, driving, community work, peer relationships, traveling, sexuality and sex, gender identity and reproductive health will feature in one to one discussions during such consultations.

88

Civil Code (n 82) Article 960.

48

VOLUME XXVIIII

This consent is valid, if it is voluntary, informed, and the patient has the capacity to make a decision. This is imperative for whatever health procedure is undertaken. A consultation is a two-way shared communication process based on mutual trust and this must always involve the patient in the decision-making, as it is the patient who takes the final decision on her planned management. If the patient’s decision is one that refuses a particular treatment, the informed decision of the patient must be respected .89 Present legislation does not give a legal definition of what competence is. In this respect, restricted guidelines have been issued by the Malta Medical Council, and furthermore, I note that the Patient Charter’s Rights as detailed in The Health Act90 has not as yet been legally acknowledged.

On the other hand, whatever decision a patient takes, the medical doctor may refuse the service that is requested. Each doctor has a right to one’s professional and ethical integrity and has a right 89

There are a few exceptions when treatment may be given on the discretion of the health care profession without a person’s consent. These are: •

In emergency treatment to save ones life, but patient is incapacitated (for example, unconsciousness) – the reasons why treatment was necessary should be fully explained once patient recovers; When during an operation one immediately requires an additional emergency procedure – there has to be a clear medical reason why it would be unsafe to wait to obtain consent;

•

With a severe (major) mental health conditions – such as schizophrenia, bipolar disorder or dementia lack the capacity to consent to the treatment of their mental health – in these cases, treatment for unrelated physical conditions still requires consent, which the patient may be able to provide, despite their mental illness;

•

Requires hospital treatment for severe mental health, or induced self-harm or attempted suicide and is refusing treatment (Mental Health Act) the person’s nearest relative or an approved social worker along with the doctor must make an application for the person to be forcibly kept in hospital;

•

When there is a risk to public health, example infectious disease health (Public Health Act);

•

In severely ill patients who are living in unhygienic condition (National Assistance Act )– a person who is severely ill or infirm and is living in unsanitary conditions can be taken to a place of care without their consent;

•

In withdrawing the life support of ITU patients, when the patient’s quality of life, chance of recovery are bleak- this is usually discussed with relatives;

90

Mental Health Act, Chapter 525 of the Laws of Malta.

49

ID - DRITT

to this refusal. It is the respect for the life of a human being that primarily establishes the right to conscientious objection. No medical practitioner is obliged to prescribe the Morning After Pill, if it ever was a prescription item, or perform vitrification or assist in abortion if these were legalized in Malta, against one’s will and against one’s principles.

I have lived these experiences and much more with many female patients, and we did find the right solutions too. The bottom line is: give life a chance.

7. The politics of ‘life’ Every so often, political parties and NGO’s instigate the beginning of life issues for public debate. Some do so with a hidden agenda.

Political statements preempting a populist outcry are not rare.

Parliament has also participated pro-actively through its committees in these public deliberations and I have personally been invovled and chaired a number of these debates.91 Sexual health is a topic that is 91

There are three Parliamentary reports which I have chaired: Parenting (2016), Age of Sexual Consent(2015) and Emergency Contraception (2016) A)Parenting: A changing society has changed the family set-up and parenting should be more children focused. It is imperative that government services must: 1)assist marriage and relationship education and other support services 2)start an ongoing awareness campaign 3)invest in training of qualified personnel 4)liaison more with the Family Court 5)focus on parenting challenges: adopted, fostering and disabled children.

B) Age of Sexual Consent : 1)The age of sexual consent should be lowered to age 16 for all genders.

2)We must empower and support youths. It is essential that the present standards of PSED must be strengthened. Access to professional health care for 16-18 year olds (without parental consent) has opened a gateway to youths’ comprehensive holistic health care. ( See also ref: 56) but educational services must be enhanced.

3)The set up of a National Youth Health Care Policy which must also focus on care pathways.

C ) Emergency Contraception:

50

VOLUME XXVIIII

continuously being updated.92 Many a times, I have been publicly upfront in defense of the rights of human life. Malta’s international participation in the advancement of women has always been at forefront in the last legislature.93 I often wonder on the arguments brought forward by some of my political friends, who air a pro-choice opinion on social media. Let us suppose, for argument’s sake, we omit from our line of thought the undisputed scientific fact that human life begins at fertilization, and consider balancing out the right to life of the unborn against the rights of the pregnant mother to safeguard her personal autonomy and development, and reason out, to which side this balances out.

Let me be clear from the onset. I am in favour of the emancipation of women and I hold a very strong opinion for equality among genders.

1)There are different pharmaceutical forms of MAP and emergency use of different IUDs, which have different modes of action and one cannot exclude that their mode of action does not hinder implantation of an embryo.

In the case of Malta, abortifacients are prohibited by the Criminal Code, Articles 241 and 243 and embryos are protected by The Embryo Protection Act. Ella One and IUDs are certainly abortive.

2)The laws of Malta have to be strictly adhered to. The issue of pharmaceutical licenses by The Medicines Authority is debatable as it is subject to this enforcement.

Marketing authorization centrally granted is valid throughout the EU (Article 13 of regulation 726/2004). However this is without prejudice to Article 4(4) of EU Directive 2008/ 83/EC Article 4(4), which states that this “does not affect the application of national legislation prohibiting or restricting the sale, supply or use of medicinal products as contraceptives or abortifacients.

3)Patients seeking to use MAP have a right to make an informed, voluntary decision and choose that clinical pathway that safeguards their holistic health.

4)A medical consultation ensures that public health issues and the wellbeing of patients through a comprehensive health care delivery system are safeguarded. Our primary health care service unlike community pharmacy are open 24/7.

92

Ministry of Health: Sexual Health Strategy for Malta (2012), Sexual Health : Media Resource Book (2013), Sexual Knowledge, Attitudes and Behaviour (2013); Ministry of Civil Liberties: Inter-Ministerial Report on Age of Sexual Consent (2017); and Kunsill Nazzjonali taz-Żgħażagħ: Age of Sexual Consent: Sexual Health and Education (2016) 93

Convention on the Elimination of All Forms of Discrimination against Women ‘Responses to the list of issues and question with regard to the fourth periodic report’ < http://www.refworld. org/pdfid/4eeb20da2.pdf> accessed 6 March 2018; Adriana Borg, ‘Malta’s laws on domestic violence perpetrated against women by an intimate partner: are they up to standard?’ (LLD thesis, University of Malta 2014).

51

ID - DRITT

Undeniably there is a strong consensus among European states, that regardless of the facts presented by science, the right to life of the mother and her well-being are considered more valuable than the right to life of the unborn. The World Health Organization94 holds the same opinion and prioritizes female reproductive rights over fetal rights .95 So does the World Medical Association, but with more caution..96 I often ask myself: Does this mean that these entities’ direction is right and our Maltese law is wrong?

I find it very difficult to comprehend how certain States grant abortion in one stage of prenatal development and protects the fetus in the next phase, or how community pharmacists dispense emergency contraception as an over the counter medicine when research shows that certain brands have an abortifacient effect97or how some 94

World Health Organization, ‘Sexual Health, Human Rights and the law’ (2015) <http://apps.

who.int/iris/bitstream/10665/175556/1/9789241564984_eng.pdf> accessed 5 March 2018.

95

Fetal rights are legal rights of the unborn under natural and civil law. The term fetal rights

came into wide usage after the landmark case Roe v. Wade that legalized abortion in the United States in 1973.

96

The World Medical Association Declaration on Therapeutic Abortion notes that ‘circum-

stances bringing the interests of a mother into conflict with the interests of her unborn child create a dilemma and raise the question as to whether or not the pregnancy should be deliberately terminated’.

97

Morning After Pill is an umbrella term for emergency contraception. Drugs and devices

with post-fertilization (life-ending) mechanisms of action are included in the FDA definition of ‘contraception.’ Even though these drugs or devices may end an embryo’s life by preventing implantation, they are labeled by the FDA as ‘contraception.’ However, referring to such drugs as ‘contraception’ is deceiving in that it infers only the prevention of fertilization. But the FDA’s criterion in categorizing a drug as ‘contraception’ is whether a drug can work by preventing ‘pregnancy’ – which the FDA defines as beginning at ‘implantation’, not fertilization. Both Plan B and Ella One are used for unprotected casual sex when no proper contraception is being observed. Their mode of action and effects are very different. However their indication and purpose is same.

Ella One was approved by FDA in 2010. Ella One modes of action goes way beyond that of Plan B. Ella One is also capable to abort an already implanted embryo. This is why Ella One is highly efficient at what it does even 120 hours after taking it. ‘Ulipristal Acetate’ ( Ella One ) can prevent implantation or abort an implanted embryo. Ella One is not an improved’ version of Plan B; instead, the chemical make-up of Ella is similar to the abortion drug RU-486. Like RU-486, Ella is a selective progesterone receptor modulator (SPRM) – ‘the mechanism of action of ulipristal in human ovarian and endometrial tissue is identical to that of its parent compound mifepristone’.

This means that though labelled as “contraception”, Ella works the same way as RU-486. By

52

VOLUME XXVIIII

politicians agree to embryo vitrification in IVF98 to improve health blocking progesterone – a hormone necessary to build and maintain the endometrium during pregnancy – Ella can prevent a developing human embryo from implanting in the uterus, or it can abort an implanted embryo by essentially starving it to death. Put another way, Ella can abort a pregnancy, whether you define “pregnancy” as beginning at fertilization or at implantation. In November 2014 the Committee for Medicinal Products for Human Use (CHMP) of the European Medicines Agency (EMA) recommended that Ella One be made available across Europe as an emergency contraceptive without a prescription. Ella is one of two ‘morning-after-pills’ available on the European market and, since its launch in 2009, was available only with a prescription in EU Member States.

The European Commission’s Implementing Decision of January 2015 permitted the pill’s over the counter sale in the EU and put further pressure on Member States to change the status quo. This was challenged by a 15 MEP Parliamentary Question at European Parliament (EllaOne’ medicine - P-001651/2015) on the basis of a judgement of Oliver Brüstle v. Greenpeace eV delivered by European Court of Justice: “the legal protection stemming from the dignity of the human being starts from the moment of conception and the earliest embryonic phase, since fertilisation is such as to commence the process of development of a human being.” As a consequence the decision of the Commission was watered down but not removed. In 2017 Ella One was introduced as an over the counter medicine in Malta by the Medicines Authority against the suggested criteria of a Parliamentary Report presented by a Conjoint Committee in Autumn 2016.

See Bruno Monzanega, ‘The question of emergency contraception’ The Malta Independent (16 January 2017 <http://www.independent.com.mt/articles/2017-01-16/newspaper-opinions/ The-question-of-emergency-contraception-From-the-Realm-of-Law-to-the-Realm-of-Scientific-Evidences-6736169106> accessed 6 March 2018; European Medicine Agency Evaluation of Medicines for Human Use, ‘CHMP Assessment Report for Ellaone’ (2009) <http://www. ema.europa.eu/docs/en_GB/document_library/EPAR_-_Public_assessment_report/human/001027/WC500023673.pdf> accessed 6 March 2018; James Trussell, Elizabeth G Raymond and Kelly Cleland, ‘Emergency Contraception: A last Chance to Prevent Unintended Pregnancy’ (November 2017) <http://ec.princeton.edu/questions/ec-review.pdf> accessed 6 March 2018; World Health Organisation, ‘Emergency Contraception’ (February 2018) <http://who.int/mediacentre/factsheets/fs244/en/> accessed 6 March 2018; American Life League ‘The Truth about the “Morning After Pill”’ (2015) <http://www.morningafterpill.org/how-does-it-work.html> accessed 6 March 2018.

98

As a Health Minister, I was instrumental in pioneered a complex and multi-facet care path-

way to implement an IVF program that protects human life with outstanding standards. This is an example of Best Practice. In the present scenario IVF is clinically used as a last resort for infertile heterosexual couples when all other possibilities have failed and under scrutiny of the established Authority ( EPA). It allows for sperm and oocytes freezing. I am against the concept of frozen or vitrification of embryos. Who am I to choose those embryos who may be implanted and those who must be stored. Moreover scientific evidence demonstrates that this process has not as yet been finely developed so as to guarantee no loss of human life. Vitrification in IVF can allow freezing of spare embryos with better post-thaw survival rates and higher pregnancy and live birth rates from frozen embryo transfer cycles. Where this process is applicable unwanted embryos that are not used to initiate a pregnancy are usually used as a source of embryonic stem cell for research purposes. Vitrification versus slow freezing gives better survival, post warming embryo morphology and pregnancy outcomes for human cleaved embryos. See PMC, ‘Vitrifica-

53

ID - DRITT

services’ success rates. The intentional destruction of life is capricious if we commoditize it. Certainly, abortion is not a reproductive right to family planning .99 Often I am asked: Is this a blanket statement? There may be rare exceptions. Three circumstances that come to mind are: when a young teenager is pregnant as a consequence of rape or a pregnant mother’s life or health is endangered by her pregnancy or in very severe malformations as in the case of Potter’s Syndrome. The right to life is a one size fits all principle in reproductive health, but these three scenarios may call for more humane, multidisciplinary medicolegal decisions, which are to be considered on a case-by-case basis..

When a woman enters my clinic and tells me that she may be pregnant or is pregnant, I examine two patients, the wellbeing of two humans. Every pregnant woman has two sets of human rights in one body; that being her body and that of her child. The optimal wellbeing of the pregnant mother100 and that of the unborn have to be safeguarded.

tion versus slow freezing gives excellent survival, post warming embryo morphology and pregnancy outcomes for human cleaved embryo’ (10 June 2009) <https://www.ncbi.nlm.nih.gov/ pmc/articles/PMC2729856/> accessed 6 March 2018; F Zegeres-Hochschild and others, ‘The International Committee for Monitoring Assisted Reproductive Technology (ICMART) and the World Health Organization (WHO) Revised Glossary on ART Terminology, 2009’ [2009’ 24(11) Human Reproduction <https://academic.oup.com/humrep/article/24/11/2683/629168> accessed 6 March 2018.

99

See Dublin Declaration on Maternal Health, signed in 2012 which prioritizes fetal right to life by noting that ‘there is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatment results in the loss of life of her unborn child’ <https://www.notizieprovita.it/wp-content/uploads/2012/12/ DublinDeclaration.pdf> accessed 6 March 2018.

100

The International Conference on Population and Development (ICPD) at Cairo in 1994, described reproductive rights as “embracing certain human rights that are already recognized in national laws, international human rights documents, and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health...’ But the Cairo definition mentions neither abortion nor equivalent terms such as voluntary termination or interruption of pregnancy, and in paragraph 8.25 the Cairo Program of Action specifically excludes abortion as a method of family planning.

54

8. Conclusion I started my deliberation with a statement: We all agree that a newborn child has a right to life, and we thus have an obligation to refrain from harming children. Similarly, we have an obligation not to harm an unborn child. Irrelevant of the time of conduct, we have a duty to avoid harm.

In my opinion, the unborn child is a person and has a right to life and other civil rights too,101 and if the state legalizes to the contrary, it may be viewed as if we are using our legitimate powers to dehumanize humanity, thus going against the very virtues of natural law on which the very foundation of human law is laid. Other nations have done this, but does that mean that such laws are just laws?

As we have seen, the literature is vast, and also controversial but, ultimately, it is up to the legislator to decide in which direction we ought to proceed in this matter. . Freedom of thought, opinion, liberty, and to assemble are universal rights, but ultimately liberty is the power that we bestow on ourselves. When we interfere with our very beginning maliciously, we will not be fulfilling those rights.

101

Rita Joseph argues cogently and clearly that an unborn child’s right to life is far more plausibly grounded in the UN instruments than is a right to abortion. She notes, however, that the unborn child’s rights have ‘been obscured for some decades now by the rise of a new pro-abortion ideology in the form of radical feminism,’ which has conducted “a masterly campaign of ideological reinterpretation.” She is, moreover, witheringly critical of the reluctance of human-rights courts, particularly the Inter-American Commission and the European Court of Human Rights, to recognize the unborn child’s right to life. See Rita Joseph, Human Rights and the Unborn Child (Martinus Nijhoff Publishers 2009); John Keown ‘International Human Rights Law and the Unborn Child’ (24 September 2010) <https://www.nationalreview.com/blog/bench-memos/international-human-rights-law-and-unborn-child-john-keown/> accessed 6 March 2018.

Book Review

The multidimensionality of privacy: Joseph A Cannataci’s ‘The Individual and Privacy’ Kevin Aquilina

Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta and Head of the Department of Media, Communications and Technology Law.

ID - DRITT

1. Introduction

P

rofessor Joseph A. Cannataci’s edited work entitled ‘The Individual and Privacy’ forms part of a three volume series entitled ‘The Library of Essays on Law and Privacy’ edited by Philip Leith who is a Professor of Law at Queen’s University of Belfast in the United Kingdom.1 Prof Leith has contributed to the first volume with an essay on The Socio-Legal Context of Privacy, originally published in ‘The Internet Journal of Law in Context’.2 Professor Cannataci has not only written the introduction to this work but he has also contributed two essays. In the first essay, ‘Privacy, Technology Law and Religions across Cultures’3, Cannataci posits the question whether religions can contribute to the formulation of new or evolving legal concepts and possibly to agree about the development of certain key values such as privacy.4 Noting that there is no universally accepted legal definition of the nomenclature, the author points out that the privacy provision of the United Nations General Assembly’s Universal Declaration of Human Rights’5 is not without controversy from a religious perspective. This essay refers to recent contributions on information ethics and stresses upon the reasons as to why information technology and ethics are important to religion.

The author notes that Western religions perceive privacy as inherently non-doctrinal where it creates a space in which people may choose to do as they want, without fear of consequences, as long as their deeds do not violate societal norms.

1

Joseph A Cannataci (ed), The Library of Essays on Law and Privacy: The Individual and Privacy, vol 1 (Ashgate Publishing Limited 2015) 497.

2

Philip Leith, ‘The Socio-Legal Context of Privacy’ [2006] 2(2) The International Journal of Law in Context, 105.

3

Joseph A Cannataci, ‘Privacy, Technology Law and Religions across Cultures’ in Joseph A Cannataci and Philip Leith (eds), The Individual and Privacy (Ashgate Publishing 2015).

4

ibid.

5

Article 12 of the said Declaration provides ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks’.

58

VOLUME XXVIIII

Joseph Cannataci’s second essay, ‘Lex Personalitatis6 and Technology-Driven Law’7 identifies an emerging trend in European Law where, although a stand-alone right to private and family life exists at law, conceptually privacy may be understood as an enabling right subservient to the overarching right to dignity and unhindered development of personality.8 Lex personalitatis, or the law of personality, looks to a supreme value, the individual’s fundamental right to unhindered development of his or her personality going beyond the commercial exploitation of image, name, etc.

Volume II of this series is edited by Philip Leith and deals with ‘Privacy in the Information Society’ whilst Volume III edited by Joseph Savirinuthu deals with ‘Security and Privacy’. Hence, the three volumes discuss privacy in its diversity, complexity, intricacy, and inter-relationship with the individual and the society to which she or he belongs.

2. The Individual and Privacy Volume I is entitled ‘The Individual and Privacy’9 and is subdivided into three distinct though inter-related parts. Each part concerns a specific topic related to the privacy dimensions of time, space, and place. The essays in Part I have been collectively grouped under the heading of ‘The Time Dimension: Perspectives from History and Anthropology through Philosophy to Religion and Technology Law’.10 Part II focuses on the ‘Space Dimension in Privacy Perspectives and Methodologies: From Early Days in Sociology through Social Psychology to the Socio-Legal Approach and the Cognitive Sciences in the 6

The Law of Personality.

7

Joseph A Cannataci, ‘Lex Personalitatis and Technology-Driven Law’ in Joseph A Cannataci and Philip Leith (eds), The Library of Essays on Law and Privacy: The Individual and Privacy (Ashgate Publishing 2015).

8

ibid.

9

Cannataci (n 1).

10

ibid.

59

ID - DRITT

twenty-first century’.11 The last part addresses the ‘cultural dimension: conceptualisations of privacy and personality around the world’.12

2.1 General Comments By way of general comment, I would like to make seven general observations on this work.

Firstly, this volume approaches the individual and privacy from a holistic perspective rather than from a purely legal approach, as one would have expected bearing in mind that Professor Cannataci is an expert in Information Technology Law. Instead, here we have a discussion of privacy in relation to the individual, from a broader yet more intriguing approach: a multidisciplinary and interdisciplinary contribution. The authors who have penned the essays in this volume hail from diverse disciplines such as history, anthropology, philosophy, religion, law, culture, sociology, social psychology, socio-legal studies, statistics, information ethics, data protection and retention, human rights, and development studies. The work is thus as rich in its diversity of subjects tackling privacy as it is in content.

Secondly, this contribution studies its subject matter not only from a comparative angle but also from a comparative humanity point of view. The laws, customs, and practices of various peoples hailing from multiple jurisdictions compete against each other to be analysed, dissected, and studied. Countries which are brought under the privacy spotlight are, amongst others, Syria, Australia, Japan, China, and developing countries.

Thirdly, the peer reviewed journal sources used for the compilation of the published essays in this volume are also as diverse as can be. Some essays have been published in law journals whilst others have been published in journals related to sociology, human ecology, social sciences, information technology, Middle East Studies, etc. I 11

ibid.

12

ibid.

60

VOLUME XXVIIII

consider this to be a distinctive and original feature of this volume.

Normally, in other books discussing privacy, authors tend to be very much discipline specific and fear to tread outside the discipline with which they are familiar as they feel insecure departing from their comfort zone, even if such a multidisciplinary and interdisciplinary approach might provide novel insights into the subject under consideration.

Fourthly,

when

this

volume

61

is

read

with

ID - DRITT

62

VOLUME XXVIIII

63

ID - DRITT

64

VOLUME XXVIIII

65

Comparative Tort Law

Le funzioni della responsabilta’ civile nel panorama Italiano, e il difficile dialogo con il Danno Tanatologico Annunziata Rapillo

Annunziata Rapillo is an Italian student who is an Erasmus trainee who is completing a PhD in Tort Law in the University of Malta. She is a former student of the University of Salerno. She is also a member of the Editorial Board for the Mediterranean Human Rights Review, which is published by the University of Malta.

ID - DRITT

1. Introduzione

L

a disciplina della responsabilità civile nel sistema italiano rappresenta uno dei più complessi argomenti su cui il panorama dottrinale ha da sempre dibattuto: il codice del 1942 ha rappresentato una vera e propria svolta rispetto al precedente testo del 1865, che si limitava a riportare la disciplina cristallizzata illo tempore nel Code Napoleòn del 1804, invero poco performante con il sistema italiano. La genericità della formula prevista nella disciplina francese disegnava i contorni di un meccanismo risarcitorio ad ampio spettro che poco si focalizzava sulla tipologia di danno arrecato, prestando attenzione principalmente, alla condotta del danneggiante antigiuridica e pertanto idonea a far sorgere una pretesa risarcitoria.

Il codice di epoca fascista riscrive il concetto di illecito aquiliano, prevedendo che ogni fatto in grado di arrecare un ingiusto danno, sia esso connotato da un coefficiente psicologico colposo che doloso, implica l’insorgere di un’obbligazione risarcitoria a carico del responsabile qualora sussista un nesso eziologicamente rilevante idoneo a ricollegare la condotta al danno1.

La disciplina dell’illecito, quindi, ruota intorno a tre elementi principali: due oggettivi (il danno ingiusto e il nesso causale) e uno soggettivo (la componente dolosa o colposa).

Al fine di affrontare correttamente la problematica relazione che sussiste tra il danno da morte e la disciplina della responsabilità civile nell’ordinamento italiano non può prescindersi dall’analisi della normativa sull’illecito aquiliano, seppur senza pretese di esaustività, infatti, è bene individuare una serie di presupposti fondamentali per disegnare i contorni della materia. È solo dopo aver compreso le dinamiche sottese all’istituto 1

Cfr. in tal senso, Bianca, Diritto Civile, 5. La responsabilità civile, Milano, 1987; G. Alpa e M. Bessone, La responsabilità civile, Milano, 1980.

68

VOLUME XXVIIII

del risarcimento del danno che appare chiaro il punto di frizione che si palesa nei confronti del danno tanatologico, sempre ricordando che non può affermarsi la sussistenza di una vera e propria incompatibilità ontologica con il sistema, sebbene la giurisprudenza di legittimità sia di differente avviso.

2. La disciplina Normativa dell’Illecito: l’Articolo 2043 del Codice Civile. e il danno ingiusto.

La responsabilità aquiliana nel contesto italiano è ancorata ad una serie di elementi: il danno, il nesso causale e l’ingiustizia, che rappresentano i presupposti oggettivi, e il dolo e la colpa, componenti squisitamente soggettive. Giova brevemente comprendere cosa si intenda per danno ingiusto e quali siano le peculiari funzioni che il sistema della responsabilità civile è proteso a soddisfare.

La novità indiscussa del precetto, così come definito nel codice del 1942 senza dubbio è riconducibile all’attributo di “ingiustizia” del danno: la vastità della definizione di danno, infatti, ha da sempre avuto bisogno di un parametro in grado di imbrigliarne la portata per calibrarne la valenza. Se ab origine il filtro per la valutazione del danno giuridicamente rilevante era riconducibile alla lesione di determinate posizioni giuridiche, di cui la più rilevante quella di diritto soggettivo, secondo l’elaborazione della dottrina, nella nuova stesura del codice di epoca fascista il criterio di discernimento viene fornito direttamente dal legislatore: la lesione, infatti, deve essere ingiusta2.

2

Come Autorevole dottrina evidenzia, tale prospettiva è temperata dalle sole ipotesi in cui, in omaggio al principio di tassatività, il legislatore stabilisce una lesione a priori ingiustificata che solitamente è riconducibile alle fattispecie accompagnate da una norma di protezione. In tal senso cfr. R. Scognamiglio, Ingiustizia del danno e tecniche attributive di tutela aquiliana (le regole della responsabilità civile ed il caso Cir c. Fininvest) in Nuova Giur. Civ. Comm., II, 2014, 360.

69

ID - DRITT

Cosa sia l’ingiustizia del danno è speculazione impegnativa, molteplici le opinioni della dottrina3 e varie le impostazioni della giurisprudenza che si sono susseguite nel tempo. Certamente degna di nota è la definizione che la Corte di Cassazione, in una celebre sentenza4 la n. 500 del 1999 in cui per la prima volta fu cristallizzata la definizione di danno ingiusto ancora oggi in auge: un pregiudizio è ingiusto quando si presenta antigiuridico. L’antigiuridicità è una definizione che ha un valore sistematico e che consente di far identificare una condotta cumulativamente contraria alle prescrizioni di legge, un atteggiamento sistematicamente riprovevole, che a prescindere dal contesto in cui viene posto in essere - sia esso penale, civile o amministrativo - fa rifluire nell’illegalità l’azione. In tale occasione la Corte di Cassazione per la prima volta si schierò a favore di una rilettura della disciplina prevista all’art. 2043 c.c., che rivelava tale dettame come norma dal valore primario e costitutivo, e non più secondario ed ancillare come fino a quel momento veniva sostenuto. Ne derivava una conseguenza di non poco momento: la disciplina ex art. 2043 c.c. non aveva la funzione di sanzionare la violazione di norme che statuivano e attribuivano diritti o doveri5, ma era essa stessa fonte di un generico dovere di neminem laedere, che se violato implicava la tutela apprestata attraverso il risarcimento del danno6.

Talvolta fusi in un unico concetto, l’elemento del danno e 3

Ex multis, va richiamata l’opinione dottrinale di M. Barcellona, il quale palesava la sussistenza di un conflitto tra il concetto di obbligo e quello di permesso che scadeva nell’ingiustizia della condotta solo nel caso in cui l’equilibrio che tale dicotomia implicasse la sussistenza di un obbligo in assenza di permesso, da cui derivava una invasione della sfera giuridica del soggetto in posizione passiva. Per ulteriori approfondimenti, M. Barcellona, La responsabilità extracontrattuale, Torino, 2011.

4

Cfr. ex multis, il commento di Cfr. A. Fucci, Il danno ingiusto alla luce della sentenza n.

500/1999 della Cassazione in La Resp. Civ., 2005, 514 ss.

5

Impostazione quest’ultima condivisa ex multis da A. De Cupis, Il danno, Milano, 1979.

6

Sostenevano tale prospettiva, attualmente ancora maggioritaria, ex multis, Rodotà, Il problema della responsabilità civile, Napoli, 1967; C. Salvi, Il danno extracontrattuale. Modelli e funzioni, Napoli, 1985.

70

VOLUME XXVIIII

quello dell’ingiustizia dello stesso vanno tenuti ben distinti7: ciò, in ragione del fatto che non tutti i danni sono ingiusti, sebbene tutti i danni non siano irrilevanti per l’ordinamento. Giova in tal senso porre l’attenzione sulla distinzione che nel contesto italiano sussiste tra risarcimento e indennizzo, il primo conseguente ad un’azione che causa un danno ingiusto, il secondo che deriva da un comportamento che, sebbene rispettoso delle direttive legislative, in ogni caso va ad intaccare la sfera giuridica di un altro soggetto8.

Fulcro, pertanto, di simile dicotomia va ricercato nella liceità o illiceità del comportamento tenuto a cui conseguono effetti di non poco conto anche sotto il profilo quantificatorio, visto che il risarcimento è caratterizzato dai criteri di danno emergente e lucro cessante; l’indennizzo, invece, punta solo al mero bilanciamento della sfera lesa.

Affinché, dunque, si possa porre in attuazione la disciplina di cui all’art. 2043 c.c. è necessaria la compresenza di danno e ingiusta lesione e se il paramento dell’ingiustizia appare oggi più o meno definito, problematico, invece, si rivela il concetto di danno, in quanto in continua evoluzione e non riconducibile ad una tipizzata definizione.

Svariate le teorie che si sono contese il campo per tracciare 7

Tale distorsiva prospettiva è esplicitata da Autorevole dottrina che pone in risalto come tale visione sia una vera e propria errata lettura sistematica del meccanismo della responsabilità: tali due concetti, infatti, non possono essere sintetizzati in un solo elemento sia in ragione del mancato automatismo che implica l’ingiustizia di ogni danno, sia perché creerebbe una confusione su quella che era l’originaria intentio legis, cioè creare un meccanismo di discriminazione tra ipotesi di pregiudizio giuridicamente rilevanti e fattispecie indifferenti al mondo del diritto. Cfr. V. Scalisi, Ingiustizia del danno e analitica della responsabilità civile in Riv. Dir. Civ., 2005, 40 ss.

8

Estremamente significativa la distinzione tra il concetto di risarcimento e quello di indennizzo, non appartenendo quest’ultimo ad ipotesi di illegalità della condotta, che invece rappresenta il presupposto del meccanismo risarcitorio del danno e che emerge dalla necessaria connotazione del danno che deve essere ingiusto. Per ulteriori approfondimenti a riguardo, P. Perlingieri, La responsabilità civile tra indennizzo e risarcimento in Annali della Fac. Di Benevento, 2006, X, 235 ss.

71

ID - DRITT

i confini di un così labile concetto: dapprima considerato sotto una prospettiva reale, il danno veniva ricondotto alla perdita patrimoniale subita dal soggetto leso in conseguenza dell’illecito il cui valore andava parametrato sul valore reale del bene, l’equivalente monetario per intenderci9. Da ciò discendeva la necessità che il ristoro del danno patito dovesse essere valutato tenendo come limite il valore venale del bene danneggiato, creando in caso contrario un ingiusto arricchimento in capo al soggetto leso.

Ovviamente tale impostazione ebbe vita breve, in quando soppiantata dalla teoria, di tedesca origine, della differenza, (la differenztheorie) che parametrava il valore esatto della perdita sulla base di un raffronto tra lo status patrimoniale del soggetto leso prima e dopo l’evento antigiuridico10. La valutazione, pertanto, non riguardava il bene danneggiato in sé, ma teneva in debito conto anche le svariate voci di costi e spese che, per il rispristino dello status quo ante, andavano a gravare sul danneggiato.

Nonostante la particolare precisione di tale impostazione, anche questa prospettiva prestava il fianco a numerose critiche, prima fra tutte l’impossibilità di quantificare in termini meramente economici determinati tipi di pregiudizi, come le lesioni alla persona, all’onore e a tutta una serie di diritti che non possono essere convertiti in un preciso ammontare. Per risolvere tale problema, così, si decise di approdare alla teoria cd normativa del danno, secondo tale orientamento, rappresenta un pregiudizio tutto ciò che attraverso l’analisi di una serie di indici normativi implicava la violazione dell’altrui sfera giuridica11.

9

Al fine di approfondire tale concezione di danno, cfr., ex multis, D. Poletti, Attuazione e tutela dei diritti, III La responsabilità e il danno (a cura di N. Lipari e P. Rescigno), Milano, 2009; F. Mastropaolo, Voce Danno III, Risarcimento del danno in Enc. Treccani, 1999.

10

Per ulteriori approfondimenti a riguardo cfr., M. Franzoni, Il danno risarcibile, Milano, 2010.

11

A sostegno di tale impostazione cfr., C. Salvi, op. cit.

72

VOLUME XXVIIII

Negli ultimi anni, infatti, il continuo raffronto con una società in trasformazione ha dovuto far i conti con una serie di lesioni prima inconcepibili: la tutela del consumatore, la disciplina della privacy, le possibili illecite condotte nell’universo digitale e tante altre fattispecie hanno cristallizzato l’idea che definire quali siano i danni è opera impossibile, eppure certamente possibile è invece individuare quando tale lesione sia giuridicamente rilevante, quando superi la normale tollerabilità12. Nella descrizione della categoria di danno non si può certamente trascendere dalla dicotomia tra lesione patrimoniale e lesione non patrimoniale, quest’ultima ancora oggi, dopo decenni, sotto una lente di ingrandimento che non sembra in grado di perimetrarne i confini.

Ciò che ci è dato sapere è che il danno, quando va a ripercuotersi su aspetti squisitamente patrimoniali e quindi economici, è connotato dalla atipicità, basta dimostrare che una determinata condotta umana è stata in grado eziologicamente di produrre degli effetti depauperatori per il patrimonio del soggetto leso che tale pregiudizio deve essere risarcito, o quanto meno indennizzato. Più sottile e complessa la definizione di danno non patrimoniale: quest’ultimo esplicitamente tipizzato, a differenza di quanto avveniva nell’ambito del codice del 1865, è regolato secondo un criterio di tipicità che inizialmente la voluntas legis rendeva applicabile solo alle ipotesi di pregiudizio che si presentavano come conseguenti ad un fatto di reato, attraverso il richiamo all’art. 185 c.p.

Sicuramente una prospettiva così ristretta urtava con l’incre12

A tal proposito è interessante la rilettura fornita da P. Trimarchi, il quale proprio alla luce di un nuovo periodo di industrializzazione propone una prospettiva completamente sconvolta da dinamiche che prima erano estranee al risarcimento del danno e che, invece, ora sono sempre più alimentate dalla categorizzazione anche in precisi settori disciplinari come il diritto dei consumatori o quello dei contratti a distanza che, sebbene ricalcano schemi già noti nel contesto della responsabilità, danno origine a forme di pregiudizio prima sconosciute. Cfr. P. Trimarchi, Rischio e Responsabilità oggettiva, Milano, 1961.

73

ID - DRITT

dibile espansione e rilettura del sistema che pochi anni dopo la stesura del codice del 1942, si andava cristallizzando attraverso l’ausilio della Carta Costituzionale in cui i diritti inalienabili e incomprimibili della persona umana sembravano far sbiadire l’intero assetto come precedentemente consolidato13. In tale fermento va contestualizzata la presa di posizione che fin dagli anni ’80 cercava di rimediare alla lesione al bene salute attraverso la combinata lettura degli art. 32 Cost e 2043 c.c., implicando il “travaso” della disciplina di un danno intangibile nella previsione patrimoniale, quasi come se anche la integrità fisica potesse avere un suo valore economico, e quasi come se solo questo profilo patrimonialmente valutabile fosse idoneo ad ottenere tutela14. È in tale momento storico che la distinzione tra danno evento e danno conseguenza si fortifica e consolida, ponendo in evidenza che una lesione non è in re ipsa risarcibile, ma sono le conseguenze che quel determinato evento lesivo produce sulla sfera giuridica del destinatario. Una simile prospettiva si mostra da sola in grado, allora, di spiegare le funzioni, o meglio la funzione, a cui nell’ordinamento italiano la responsabilità civile a monte e il risarcimento a valle cercano di soddisfare e che non può essere diversa dalla mera compensazione del soggetto danneggiato.

13

Invero, la dinamica relazionale che si è instaurata tra la Costituzione entrata in vigore nel 1948 e la disciplina dell’illecito civile, che è stata cristallizzata nel codice del 1942, quindi ben 6 anni primi, è stata al centro di un’opera monografica di grande importanza che per la prima volta ha sintetizzato le problematiche sottese alla reinterpretazione del testo legislativo alla luce di una serie di precetti nuovi che come fulcro hanno il concetto di essere umano a cui apprestano una tutela tout court. Cfr. a tal proposito Rodotà, Il problema della responsabilità civile, Napoli, 1967.

14

La definizione “travaso” è dovuta alla giurisprudenza di legittimità che con tale esplicazione sintetizzava perfettamente la soluzione che la Corte Costituzionale prospettava al fine di rimanere fedele alla volontà del legislatore fascista. Il passaggio delle varie ipotesi di pregiudizio non patrimoniale finivano nella sfera di applicazione dell’art. 2043 c.c., di volta in volta, letto in combinato disposto con l’articolo della Costituzione che si riteneva tutelasse il particolare interesse leso. La prima ipotesi ad essere regolata secondo tale schema giurisprudenziale, come già accennato, riguardava la lesione al diritto alla salute, di cui un’attenta disamina è riconducibile al contributo di P. Perlingieri, Il diritto alla salute quale diritto della personalità in Rass. Dir. Civ., IV, 1982, 1020 ss.

74

VOLUME XXVIIII

3. Le funzioni della responsabilità civile e il danno patrimoniale.

Ecco che le differenze con l’impostazione napoleonica vengono fuori in tutta la loro grandezza: non è rilevante il comportamento tenuto dal danneggiante. Questo comportamento non è da solo sufficiente, come del resto non sufficiente è il danno prodotto ai fini risarcitori, ma il giusto contemperamento di tutti questi fattori rende il pregiudizio arrecato meritevole di tutela risarcitoria per l’ordinamento, sebbene sempre a condizione che il danno di cui si discorre sia una conseguenza negativa dell’evento illecito e non, invece, la condotta illecita in sè.

Tale distinzione si rivela assolutamente imprescindibile nella speculazione che coinvolge il concetto di danno tanatologico o da morte pura, vista la frequente collocazione che la dottrina effettua proprio all’interno della categoria dei danni-evento, per definizione non degni di tutela.

Quali siano le funzioni sottese alla responsabilità civile è un quesito che solletica la dottrina dall’inizio del XX secolo: forse il volersi emancipare dal giudizio penale, caratterizzato da punizione e deterrenza, ha finito col far atrofizzare la disciplina civilistica ormai solo destinata a ripagare economicamente il pregiudizio arrecato, lasciando così che il risarcimento avesse solo una funzione ripristinatoria15.

In tal senso, giova sottolineare il mutamento radicale di prospettiva che ha segnato il passaggio ad un’idea di risarcimento funzionale solo al ripristino dello status quo ante, a nulla rilevando fattori come la gravità dell’offesa o la condotta del soggetto.

15

In tale senso si esprime Autorevole dottrina secondo cui il passaggio da una disciplina ampia di danno, come contenuta nel codice ottocentesco, ad una più selettiva ha rappresentano una sorta di risoluzione per la lacuna legislativa che si perpetuava restando ancorati ad una prospettiva squisitamente sanzionatoria come quella ereditata dal Code Napoleon del 1804. Cfr. in tal senso, G. Ponzanelli, La responsabilità civile; profili di diritto comparato, Padova, 1992.

75

ID - DRITT

La differenza è palese: il giudizio di responsabilità disciplinato nel codice del 1865 ereditava dal Code Napoleon l’impostazione sanzionatoria dell’illecito civile, finalizzato alla condanna del comportamento illegale che, secondo il brocardo di Jheringhiana memoria “nessuna responsabilità senza colpa”, richiedeva la condotta almeno colposa del responsabile16.

Il codice del 1942, invece, abbandona tale prospettiva accostando al precetto generale di cu all’art. 2043 c.c. ipotesi speciali di responsabilità oggettiva, in cui la componente psicologica del soggetto agente è giuridicamente irrilevante. Da ciò ne consegue che il mutamento dell’impostazione legislativa che prima riconduceva una sola funzione alla responsabilità in connessione con il solo criterio utilizzabile nello stesso giudizio, quello della colpa, lascia ora emergere una serie di funzioni concorrenti, che rendono impossibile parlare di un’unica logica sottesa all’istituto del risarcimento.

Almeno quattro17, infatti, sono le finalità che possono essere individuate secondo l’impostazione dottrinale: una funzione ristorativa, una ratio distributiva, una preventiva e per taluno anche uno scopo punitivo. Ovvia la predominanza di un’idea compensativa del risarcimento: il rispristino dello status quo ante resta in ogni caso una priorità del sistema, sebbene estremamente importante diviene anche la funzione distributiva che consente la riallocazione del danno, traslando lo stesso dalla sfera giuridica del danneggiato a quella del danneggiante, su cui incombe una obbligazione risarcitoria. Inoltre, altrettanto rilevante la finalità preventiva secondo cui la conseguenza risarcitoria dell’illecito dovrebbe in re ipsa scoraggiare il quisque de populo dalla commissioni di atti antigiuridici, per il timore di incorrere in sanzioni civili. Discorso a parte merita invece lo 16

Von Jhering, Das schuldmoment in romischen privatrecht, Giessen, 1867.

17

Cfr. L. Corsari, Voce Responsabilità Civile I) Diritto Civile in Enc. Treccani, Roma, 1999.

76

VOLUME XXVIIII

scopo punitivo, che se non da tutti accettato viene da qualcuno ravvisato nella disciplina del danno non patrimoniale, grande incognita della responsabilità aquiliana.

Invero, la particolare natura del danno morale ha rappresentato formidabile punto di partenza per quella scuola di pensiero secondo cui le funzioni della responsabilità sono molteplici e non sintetizzabili nella sola compensazione del danneggiato, come la cristallizzata giurisprudenza ha lasciato intendere.

4. …Segue: il danno non patrimoniale.

La difficoltà di procedere ad un’esatta quantificazione del patema interiore, nonché la inidoneità dell’equivalente monetario di ristabilire esattamente la sfera giuridica del soggetto leso, hanno dato spazio a molteplici teorie dottrinali che palesavano quanto la funzione compensativa fosse estranea al danno non patrimoniale, che rispondeva a logiche satisfattive e in parte punitive, ma non esclusivamente ristorative come avveniva nell’ambito del pregiudizio patrimoniale.

La diatriba dottrinale e giurisprudenziale è ancora oggi aperta sebbene abbia assunto connotati differenti: le impostazioni che hanno cercato di investigare la funzione realmente sottesa all’istituto del risarcimento del danno non patrimoniale sono sostanzialmente tre: la prima, in ordine cronologico, è quella riconducibile alla ratio ristorativa che, nel caso del danno non patrimoniale, veniva contemplata come una forma di quantificazione. Pretium doloris, che teneva in dovuta considerazione anche la riprovevolezza della condotta dell’agente, invero, in omaggio al ruolo di connessione che l’art. 2059 c.c. rivestiva con il richiamo all’art. 185 del Codice Penale, che imponeva all’autore di un reato penale di risarcire il danno morale causato alla 77

ID - DRITT

vittima18.

Altra ratio che nel corso del tempo è stata riconosciuta al danno morale è stata quella di vera e propria pena privata19: secondo tale lettura lo, scopo di ripristino della sfera lesa è ben distante dalla logica punitiva che soggiace nel contesto non patrimoniale, in cui il danno che non è esattamente quantificabile deve essere liquidato, sulla base di una serie di fattori che non riguardano il pregiudizio subito. Infatti, entrano in gioco concetti come condotta antigiuridica e danno-evento: non assume rilievo la sfera giuridica del soggetto leso, ma solo la condotta illegale e ciò che ne consegue è una sanzione per l’autore.

Ultimo orientamento, cronologicamente parlando, è quello che sostiene esserci uno scopo satisfattivo20 a governare tale forma di pregiudizio: al fine di giungere ad un esatta liquidazione del danno non patrimoniale, infatti, è bene non frustrare alcun fattore di quantificazione, pertanto, secondo tale impostazione mista la funzione ristorativa, legata al danno arrecata che anda18

Ex multis, R. Scognamiglio, Il danno morale in Riv. Dir. Civ., I, 1957, 277 ss. ; M. Paradiso, Il danno alla persona, Milano, 1981.

19

Aderisce a tale impostazione G. Bonilini, il quale sottolinea l’impossibilità di quantificare il danno da un lato e dall’altro la necessità di tutelare taluni beni giuridici ben prima dell’incorrere di una lesione. Da ciò ne deriva che ciò che andava sanzionato non era il pregiudizio in sé arrecato, bensì la condotta dell’agente che assumeva un ruolo negativo sia nell’ipotesi in cui si fosse perpetuato un danno, sia qualora lo stesso non fosse a tal punto rilevante.

20

A tale prospettiva è riconducibile, ex multis, la teoria di A. Cataudella, il quale afferma che la liquidazione del danno non patrimoniale sofferto dal soggetto leso “soddisfa” quest’ultimo in una duplice maniera, garantendo strumenti che sollevano la vittima dal dolore e, al contempo, assicurando che l’autore dell’illecito non resti impunito, ma anzi dando conferma del suo diritto. Secondo quanto, inoltre, affermato da tale Autore nel delineare l’istituto del danno non patrimoniale non si può trascendere dalla connessione che sussiste tra il profilo della pena e quello della soddisfazione, contemperamento che emerge con vigore quando consente di graduare la liquidazione del pregiudizio tenendo conto delle ultronee sanzioni a cui va incontro il danneggiante e soprattutto, non trascurando la componente psicologica della condotta illecita, elemento indiziante per graduare anche il quantum da risarcire. Tale considerazione, però, non deve mai sfociare in una idea di risarcimento come pena che, proprio nel rispetto del rinvio effettuato dal codice penale all’art. 185, pone in evidenza che una sanzione criminale è già prevista ed attuata, avente una funzione distinta da quella attribuita al regime del diritto civile. Cfr. A. Cataudella, La tutela civile della vita privata, Milano, 1972.

78

VOLUME XXVIIII

va ristorato, si fonde con i principi punitivi che pongono l’attenzione sulla condotta dell’agente, sulla gravità dell’offesa e sulle conseguenze emotive della stessa. Questa la visione intermedia a cui giova aderire, anche in ragione della triplice scomposizione che la Corte di Cassazione ha elaborato nel 2008 che caratterizza l’unitaria voce del danno non patrimoniale.

A ben vedere, la giurisprudenza di legittimità ha sostenuto che il concetto di danno non patrimoniale rappresenta un ampio genus al cui interno vanno collocate tre distinte voci: il danno morale subiettivo, il danno biologico e il danno esistenziale.

Questi tre forme di pregiudizio non possono essere liquidate autonomamente, ma rappresentano elemento da bilanciare per poter ottenere un valido e verosimile quantum risarcitorio21.

Nell’ottica di un sistema risarcitorio dalle funzioni molteplici, sottese a differenti scopi, si inserisce il dibattito che concerne il danno da morte, che rappresenta un fenomeno singolare e particolarmente controverso.

Il danno tanatologico, nella sua più pura accezione, rappresenta un dilemma giuridico vero e proprio: se da un lato la concezione di danno-evento va ad urtare i principi basilari della disciplina del risarcimento del danno nel sistema italiano, d’altro lato, la mancanza di uno strumento civilistico al bene giuridico 21

In tal senso ancora cfr. E. Navarretta, Il contenuto del danno non patrimoniale e il problema della liquidazione in E. Navarretta (a cura di) in Il danno non patrimoniale. Principi regole e tabelle per la liquidazione, Milano, 2010, 17 ss. Invero, la Corte di Cassazione aderisce all’impostazione dottrinale secondo la quale la distinzione delle sottovoci di danno alla persona abbiano un valore meramente descrittivo. La paventata duplicazione risarcitoria, nonché l’ampliamento a dismisura delle categorie di danno non patrimoniale, concessa dall’apertura della clausola di cui all’art. 2 della Costituzione, sono state le ragioni principali poste a sostegno di una simile scelta giurisprudenziale. L’intrinseco accostare il danno biologico alla lesione del diritto alla salute ex art. 32 Cost., il danno morale alle conseguenze di un reato e, infine, il danno esistenziale alle varie ipotesi di lesione di diritti costituzionalmente tutelati, rappresentava un vero e proprio vulnus alla certezza del diritto e alla corretta attuazione dell’art. 3 della Costituzione: la semiarbitraria quantificazione e liquidazione del danno non patrimoniale secondo l’equo apprezzamento del giudice senza l’argine garantito da un approccio monista, finiva col giovare al danneggiato spesso destinatario di un arricchimento ingiustificato.

79

ID - DRITT

vista si presenta come un non sense. Al fine di delineare l’odierno assetto della giurisprudenza, giova individuarne gli aspetti peculiari, partendo dal un excursus storico.

5. La categoria del Danno Tanatologico.

Il danno tanatologico rappresenta una delle più grandi zone d’ombra della disciplina del risarcimento del danno nel contesto italiano: al centro del dibattito fin dall’inizio del secolo scorso, quando, nel 1925, per la prima volta la Corte di Cassazione fu chiamata a dirimere una controversia sorta presso la Corte d’Appello di Palermo. In tale occasione si discuteva della compensazione dei danni subiti dal de cuius, in seguito all’illecito colposo di un terzo, e il danno da morte venne considerato irrisarcibile in ragione dell’applicazione del principio cronometrico che fungeva da criterio idoneo a verificare se il danno fosse maturato nella sfera giuridica del de cuius prima di passar a miglior vita. Proprio per tale ragione viene definito come diritto acefalo, nella misura in cui si consolida in una sfera giuridica che al momento della maturazione del danno non esiste più, lasciando tale danno privo di legittimo titolare22.

Si giustifica in tale contesto il paradosso suffragato dalla impostazione maggioritaria della dottrina e dalla quasi unanime giurisprudenza secondo cui è più conveniente uccidere che fe22

Corte Cassazione., Sez. Uni. 22.12.1925 n. 3475 in Giur. It., I, 1926, 224 ss. In occasione di tale provvedimento la Corte di Cassazione conferma l’impostazione secondo cui i soggetti che, poiché esperivano la domanda formulando la stessa in veste di eredi del de cuius che aveva subito la lesione e poiché tale pregiudizio interveniva nella sfera giuridica del soggetto ormai deceduto, ma soprattutto deceduto prima che il danno maturasse, non potevano ambire a nessuna forma di risarcimento del danno che fosse richiesta iure successionis. Il consolidamento del pregiudizio, invero, a favore del soggetto ascendente richiedeva come presupposto logico la continuazione della vita di quest’ultimo, che evidentemente non era riscontrabile nel caso di specie. Per la prima volta la Corte fa riferimento al principio cronometrico, finalizzato a verificare la sussistenza di un sufficiente lasso di tempo in grado di consentire il corretto ingresso nella sfera giuridica del danneggiato della lesione, criterio ancora oggi in vigore dopo quasi un secolo.

80

VOLUME XXVIIII

rire, e che presenta come risvolto pratico una osmotica declinazione in sottovoci e categorie giuridiche che proliferano nelle aule di tribunali, pur di garantire un ristoro ai congiunti della vittima, ma che non sembrano risolvere il dilemma sorto ab origine: cioè se il danno tanatologico sia liquidato a favore dei cari del soggetto deceduto a causa dell’illecito iure proprio o iure hereditatis.

6. La nascita del concetto e il dibattito dottrinale.

Senza tralasciare l’arresto giurisprudenziale ad opera della Corte di Cassazione fin dagli albori del Novecento, preliminarmente, è bene disegnare i contorni del dibattito che per l’intero secolo scorso ha canalizzato l’attenzione della dottrina, divisa in due nette correnti di pensiero che ancora oggi stentano a trovare punti d’incontro per svariate ragioni, alimentando dibattiti da sempre sottesi alla disciplina della responsabilità civile aquiliana, e che lambiscono la casistica del danno da morte.

Tale tipologia di danno deve la sua nascita all’elaborazione di G. Giannini,23 il quale sosteneva la lesione non è riconducibile alla morte in sé bensì al pregiudizio mortale, che rappresenta l’evento da cui scaturisce l’esito irreversibile. Tale danno, quindi, sarebbe sintetizzabile nella lesione massima al bene salute che viene, in tal fattispecie, completamente soppressa. Ed è sulla base di tale interpretazione che prende la stura il dibattito: 23

L’opinione di tale autore a necessaria trasmissibilità del risarcimento per lesione del diritto alla salute sulla base di due argomentazioni, una di logica e una di giustizia: secondo una prospettiva logica, egli affermava che appariva priva di fondamento la conclusione secondo cui la lesione al diritto alla salute era passibile di riconoscimento mentre, viceversa, la totale soppressione del medesimo bene appariva priva di adeguata tutela. Inoltre, sotto un aspetto di mera giustizia, la morte di un essere umano non può restare priva di adeguata tutela, a prescindere dall’idoneità di quest’ultimo a produrre reddito, non dipendendo l’ammontare della liquidazione del pregiudizio dal valore del capitale-umano, bensì per la gravità del pregiudizio in sé, che intacca il principale bene dell’uomo. Cfr. G. Giannini, Il danno alla persona come danno biologico, Milano, 1986.

81

ID - DRITT

il concetto che il danno biologico nella sua massima incidenza potesse rappresentare il presupposto risarcitorio per qualcuno che, invero, tale lesione non ha materialmente subito implicava un non sense. Si tratta, infatti, di un diritto personalissimo ed in quanto tale intrasmissibile. Per coloro i quali non ravvedevano una valenza autonoma connessa al danno tanatologico, proprio l’intrasmissibilità e il valore personalissimo del diritto rappresentavano il principale ostacolo al riconoscimento del danno da morte. Invero, giova sottolineare che una simile critica può trovare efficace risposta nell’argomentazione, certamente più corretta, secondo cui è bene distinguere la esperibilità della domanda risarcitoria, conseguenza dell’esercizio del diritto personalissimo e intrasmissibile, dalla trasmissione del credito risarcitorio, che, riconducibile ad una mera obbligazione pecuniaria, è trasferibile e circolabile in maniera indipendente dal resto, come da ultimo sostenuto anche dalla Corte di Cassazione.

Inoltre, anche a voler prendere in considerazione le critiche di chi sostiene l’inconciliabilità dello schema di danno-evento nel panorama giuridico italiano, a cui senza mezzi termini il danno tanatologico viene ricondotto, si può giungere ad una conciliante conclusione focalizzandosi sulla scientifica valutazione, secondo la quale solo due sono le ipotesi di morte istantanea e sono rappresentate dalla decapitazione e dallo spappolamento del cervello. In tutti gli altri casi, infatti, il decesso, oggi individuato come cessazione delle funzione dell’encefalo, si concretizza in un momento posteriore all’evento traumatico.

Così sostenendo, si potrebbe allora concludere che la differenza temporale che connota l’insorgere del pregiudizio dall’evento morte implica una diacronia in grado di consentire il confluire del danno-conseguenza nel patrimonio del danneggiato, de cuius. Inoltre, qualora non si aderisse a simile prospettiva, si rischierebbe di minare la struttura dell’illecito come 82

VOLUME XXVIIII

prevista dal codice in quanto la contemporaneità tra decesso e danno implicherebbe di per sé la mancanza di un valido nesso causale, con conseguente assenza del pregiudizio giuridicamente rilevante.24 Pertanto, da un lato la lecita trasmissibilità dell’obbligazione risarcitoria come mera obbligazione pecuniaria e dall’altro la coesistenza di un danno e di un nesso causale, in grado di collegarlo alla condotta antigiuridica, sarebbero elementi sufficienti a definire il danno da morte come danno autonomo dogmaticamente e dunque risarcibile anche nel contesto italiano.

Tale prospettiva non è stata considerata accogliibile, però, da quanti ravvedevano nel danno tanatologico un’anomalia del sistema: preliminare constatazione è rappresentata dall’assenza di un titolare della sfera giuridica che, almeno teoricamente, avrebbe subito la perdita.

Il soggetto leso, infatti, nel momento in cui matura il pregiudizio è già deceduto, il che implica l’assenza di un vero e proprio soggetto giuridico: la morte pone fine ad ogni tipo di titolarità soggettiva, e tale affermazione vale, indiscutibilmente, anche per l’esperibilità di un’azione risarcitoria o la mera verifica dell’insorgere di un pregiudizio. Inoltre, ciò che verrebbe a mancare in maniera inequivocabile è la consequenzialità con l’evento e, soprattutto, la connotazione di prevedibilità dello stesso25.

24

Cfr. in tal senso, P. Valore, Nesso di causalità civile e danno tanatologico in Corr. Merito, VII, 2008, 803 ss.

25

In senso conforme si tenga anche in considerazione il pensiero di G. Gentile, il quale sostiene che al fine di consentire la trasmissibilità iure hereditatis di un credito risarcitorio lo stesso dovrebbe risultare già presente nel patrimonio del de cuius, mentre nelle varie ipotesi di danno tanatologico, invero, la morte funge da presupposto per la maturazione della lesione, il che lascia intuire l’impossibilità che sia già presenti nel patrimonio del soggetto leso. A ben vedere, infatti, è utile considerare che in tale prospettiva non possibile parlare di ereditarietà di un bene che non preesiste nella sfera giuridica di chi viene a mancare; non di meno va sottolineato che

83

ID - DRITT

7. La presa di posizione della Corte Costituzionale e la teoria compromissoria.

Sulla base di tali considerazioni si è orientata poco più di vent’anni fa la Corte Costituzionale che, in una storica sentenza26 relativa a tale argomento, rigetta l’idea di un danno tanatologico e legittima i soli pregiudizi riflessi, consequenziali alla morte del congiunto: i successori, quindi, hanno diritto a far valutare la loro sofferenza, ma non quella del de cuius, ormai passato a miglior vita. A tale impostazione aveva già dimostrato di aderire la Corte di Cassazione qualche anno prima, seppur con toni meno netti, ma giova porre in evidenza che è degli anni ’90 il consolidarsi della teoria compromissoria, la prospettiva secondo la quale si dava il via libera a risarcimento per il danno iure proprio ai prossimi congiunti in caso di sussistenza di un danno consequenziale alla morte della vittima dell’illecito, ma non iure hereditario, non essendo riscontrabile nel patrimonio del de cuius un danno in una fase contestuale all’evento morte. Seguendo tale impostazione, infatti, è possibile tenere distinte le finalità che il risarcimento persegue da quelle finalizzate alla tutela del bene-vita: quest’ultimo, a ben vedere, riceve adeguata protezione nel contesto penalistico, vista la ratio punitiva e deterrente che connota le relative sanzioni.

Viceversa, la finalità squisitamente ripristinatoria si presenta in conflitto con la tutela del bene vita, la cui lesione, pertanto, resta irrilevante sotto un profilo strettamente privatistico. Tale discorso, chiaramente, non può essere esteso al caso di danno patrimoniale e non che il prossimo congiunto subisce per la morte della persona cara, sussistendo certamente una lesione della sfera dello stesso in seguito al venire a mancare dell’affetto, spesso l’erede incarna il soggetto che comunque sarà titolare di azione risarcitoria in conseguenza dell’evento morte che ha riguardato il congiunto, ma vanterà tale diritto iure proprio e non già iure successionis. Cfr. G. Gentile, Voce Danno alla persona in Enc. Diritto, Milano, 1962, XI, 670 ss.

26

Sent. C. Cost. 372 del 27 ottobre 1994.

84

VOLUME XXVIIII

sia sotto un’ottica economica, qualora ne fosse dipendente in senso reddituale, sia morale, in ragione della sofferenza che il lutto provoca e che può alterare la prosecuzione della quotidianità.

La posizione della giurisprudenza di legittimità, però, inizia a mutare quando, secondo un’ampia interpretazione del concetto di danno biologico, riscontrabile sotto il duplice profilo fisico e psichico, assume rilevanza la consapevolezza del soggetto leso dell’imminenza dell’evento morte. Tale prospettiva sembra dare nuova linfa alla trasmissibilità del danno da perdita della vita in presenza anche di un breve lasso di tempo successivo al danno mortale, nell’ipotesi in cui la lucidità mentale e psicologica del morituro si trasforma in una consapevole agonia intensa, anche se di breve durata27. Finisce con assumere rilevanza il concetto di danno catastrofale, un pregiudizio morale che non deve essere provato in una dimensione cronologica a lungo termine, impossibile da riscontrare in coloro i quali decedono in conseguenza di un evento mortale, ma che va investigata nella lucidità mentale e nella percezione che il danneggiato ha dell’avvi27

Significativa in tal senso è la pronuncia della Corte di Cassazione, III Sez. Civ., del 02.04.2001 n. 4783, in cui per la prima volta viene considerato il cd. Danno catastrofale. Secondo quanto affermato nel provvedimento del Collegio “Questa Corte ritiene che la motivazione debba essere accurata e circostanziata: ed in vero, posto che le lesioni mortali, conducono, secondo la esperienza medico legale e psichiatrica, alla presenza di un danno ‘catastrofico’, per intensità, a carico della psiche del soggetto che attende lucidamente l’estinzione della propria vita (danno considerato dalla psichiatria nordamericana nella scala DSM III degli eventi psicosociali stressanti, di sesto livello, che è quello più elevato) essenzialmente come ‘sofferenza’ esistenziale e non già come dolore, occorre riflettere (come del resto, metodologicamente, propone la stessa Consulta, quando considera il danno psichico riflesso delle vittime secondarie come danno psichico riconducibile sotto l’art. 2059 c.c.: si veda Corte Cost. sent. n. 372 del 1994 e successiva ordinanza del 1996 n. 293) sulla diversa natura del danno fisico, del soma e delle funzioni vitali, dove l’apprezzamento della durata attiene alla stessa esistenza del danno (come ‘quantum’ apprezzabile) e del danno psichico, pur esso prodotto da lesioni mortali, come danno catastrofico, la cui intensità può essere apprezzata dalla vittima, pur nel breve intervallo delle residue speranze di vita. Nel danno psichico non è solo il fatto durata a determinare la patologia, ma è la stessa intensità della sofferenza e della disperazione…” e ancora “Per queste ragioni la motivazione sulla rilevanza dello spatium vivendi della vittima primaria incide sulla valutazione dell’esistenza (l’an) e della consistenza (il quantum) del danno e se tale valutazione è positiva, nessun ostacolo sussiste al riconoscimento della trasmissibilità del danno biologico iure hereditatis”.

85

ID - DRITT

cendarsi della morte. Ciò ovviamente implica il maturare il un danno morale tanto rilevante quanto importante sia la sofferenza e il patema affrontato e che aumenta esponenzialmente con il trascorrere delle ore: in siffatta ipotesi, pertanto, il pregiudizio si innesta in una sfera giuridica ancora materialmente esistente e correttamente si consolida, implicandone anche la successiva trasmissibilità iure hereditario. Differente titolo, invece, presenta il risarcimento per perdita del congiunto, danno morale o economico che va ristorato in ragione del principio dell’integrale risarcimento del danno, come sinonimo di pretium doloris: in questo caso, infatti, l’erede, o meglio il congiunto, acquisisce iure proprio la titolarità del ripristino dello status quo ante in virtù delle conseguenze negative che la perdita dell’affetto produce sulla vita economica e psicologica di chi la subisce.

Ma questo appariva già cristallizzato nella giurisprudenza del tempo.

Quanto, invece, va ad innovare la prospettiva giurisprudenziale è riscontrabile a metà degli anni 2000, quando una serie di pronunce non solo ammettono il danno morale catastrofale nelle ipotesi in cui il soggetto leso e morituro vada incontro alla morte in totale stato di incoscienza, ma anche nella fattispecie in cui si ravvisi il cd. danno biologico terminale28.

Tale ultimo pregiudizio, individuato come il trauma fisico 28

Invero, la posizione della giurisprudenza sembra consolidarsi in diverse direzioni: da un lato nel provvedimento della Corte di Cassazione, III Sez. civ., 01.12.2003 n.18305, viene stabilito che la mancanza di coscienza o massima lucidità, in caso di lesione rilevante a livello morale e psicologico è ugualmente in grado di far insorgere nella sfera giuridica del soggetto leso un pregiudizio dipendente dall’imminenza dell’evento morte; dall’altro lato dopo appena qualche anno si cristallizza anche il concetto di danno biologico terminale, un pregiudizio che, seppur per poco, va ad inficiare a livello fisico e biologico il soggetto e ciò che resta della sua esistenza , come affermato nella storica sentenza della Corte di Cassazione, III Sez. Civ. 22.03.2007 n.

6946, e nella successiva pronuncia n. 21976 del medesimo anno (19.10.2007, III Sez. Civ.) in cui ciò che catalizza l’attenzione della giurisprudenza ai fini della verifica della liquidabilità del danno biologico terminale è il concetto di “considerevole lasso di tempo”, parametro in grado di vagliare la congruità di un risarcimento per il danno alla persona nel frangente temporale immediatamente precedente all’evento letale.

86

VOLUME XXVIIII

subito dal soggetto in stadio terminale, implica l’insorgere di lesioni che deteriorano il suo stato di salute secondo quando previsto e tutelato ex art. 32 della Carta Costituzionale. La valutazione a cui soggiace la realità del danno subito però non può trascurare il parametro del “considerevole lasso di tempo” che è il frangente minimo cronologico necessario al maturare del pregiudizio nella sfera soggettiva del soggetto leso, da cui discenderebbe l’eventuale trasmissibilità iure successionis.

Il panorama, allora, dei danni cd. da morte si amplia consentendo una vera e propria classificazione dei pregiudizi, da cui discende un diritto risarcitorio a favore dei congiunti sia iure hereditario che iure proprio: certamente, l’attenzione rimane alta sulle ipotesi di danni letali subiti dal soggetto che poco dopo passa a miglior vita e che solo successivamente entrano nella sfera patrimoniale dei successori, ad oggi riconducibili al danno morale catastrofale e al danno biologico terminale, con esclusione del danno tanatologico puro, quello cioè meramente posto a tutela del bene vita, a prescindere dalla verifica di qualsivoglia allegazione di patema o sofferenza.

8. La rilettura nell’ordinanza di rimessione del 2014 e l’ostile posizione delle Sezioni Unite.

E sebbene un simile orientamento appaia da quasi un decennio consolidato non manca, di tanto in tanto, qualche voce controcorrente della giurisprudenza di legittimità: giova, infatti, porre in evidenza che la netta contrarietà del danno da morte è caro alla giurisprudenza di Cassazione, sebbene poco accettato da quella di merito29.

29

C. Cass. Sez. Un. 26972 del 13.11.2008 “Nel quadro di una costante giurisprudenza di legittimità che nega, nel caso di morte immediata o intervenuta a breve distanza dall’evento lesivo,

87

ID - DRITT

La spinta propulsiva, però, è affiorata nel gennaio 2014 attraverso un’ordinanza di rimessione, che richiama una sentenza “fiume” e che per la prima volta ha cercato di ravvisare una autonoma ratio alla lesione del danno da morte puro, con cui veniva sollecitato l’intervento delle Sezioni Unite al fine di riconsiderare la consistenza ontologica del danno tanatologico.

Invero, il provvedimento del giudice remittente faceva leva su una serie di considerazioni, a ben vedere particolarmente significative, che ponevano in evidenza quanto la prospettiva sistematica così come fino ad ora elaborata comportava un enorme vulnus di tutela alla situazione soggettiva che, di fatto, assume il maggior peso nell’esistenza umana, il benevita. L’idea che esclusivamente nel campo penale vi fosse un sistema di protezione per la vita, sostanzialmente conseguente alla finalità che il giudizio di responsabilità penale persegue, di sanzione, deterrenza e punizione, lascia l’individuo privo di una simmetrica tutela in ambito strettamente civilistico. Vulnus di tutela che, però, si scontra con l’incoerente protezione ricollegabile alla più minima lesione del bene salute, che, invero, rappresenta se vogliamo un minus rispetto all’esistenza in sé.

Secondo quanto affermato, a ben vedere, nella sentenza del 2014, va reinterpretato quanto stabilito dalla Corte Costituzionale nel 1994, provvedimento in cui si richiedeva l’ingresso della perdita nel patrimonio dell’offeso per consentirne la trasmissibilità iure successionis, tenendo sempre ben a mente la funzioil risarcimento del danno biologico per le perdita della vita (sent. n. 1704/1997, n. 491/1999, n.

13336/1999, n. 887/2002, n. 517/2006), e lo ammette per la perdita della salute solo se il soggetto sia rimasto in vita per un tempo apprezzabile (sent. n. 6404/1998, n. 9620/2003, n. 4754/2004, n.

15404/2004), ed a questo lo commisura, la sentenza persegue lo scopo di riconoscere il risarcimento, a diverso titolo, delle sofferenze coscientemente patite in quel breve intervallo. Viene qui in considerazione il tema della risarcibilità della sofferenza psichica, di massima intensità anche se di durata contenuta, nel caso di morte che segua le lesioni dopo breve tempo. Sofferenza che, non essendo suscettibile di degenerare in danno biologico, in ragione del limitato intervallo di tempo tra lesioni e morte, non può che essere risarcita come danno morale, nella sua nuova più ampia accezione. Né, d’altra parte, può in questa sede essere rimeditato il richiamato indirizzo giurisprudenziale, non essendosi manifestato in questa Corte un argomentato dissenso”.

88

VOLUME XXVIIII

ne compensativa a cui risponde l’istituto del risarcimento del danno. Tali affermazioni meritano una rilettura coerente con una prospettiva che si focalizzi dapprima sull’assenza di aprioristiche categorie giuridiche, che invero sono mera speculazione dell’interprete e per tale ragione possono essere revisionate.

Inoltre, la sussistenza di un diritto alla vita, ben distinto dal diritto alla salute sancito all’art. 32 Cost., e desumibile dal combinato disposto art. 2 e art. 27, IV c. della Carta costituzionale che tutela la persona umana e rigetta la pena di morte, non deve di per sé considerarsi contrario alla ratio compensativa e ristorativa del risarcimento pecuniario. A ben vedere, infatti, la perdita della vita implica una serie di conseguenze e perdite, che sono nell’ordinanza di rimessione sintetizzate nella perdita “del tutto”; in tale ipotesi, si ravvisa certamente una deroga relativa al momento di acquisizione del diritto al ristoro che entra nel patrimonio del soggetto leso in contemporanea all’evento morte, rappresentando un’eccezione al concetto di danno- conseguenza, e rivestendo I panni di danno-evento, sebbene tale constatazione non sia di per sé significativa al fine di qualificare e ravvedere una distinta finalità sottesa al risarcimento.

Quest’ultimo, invero, continua a rappresentare una compensazione e il rispristino dello status quo ante, senza alcuna pretesa punitiva o sanzionatoria, ma semplicemente sorretto dallo scopo di non comportare una materiale degradazione del bene-vita in ragione di una lacunosa categorizzazione aprioristica. Da ciò ne discende una ordinaria trasmissibilità iure successionis e la remissione al giudice per una congrua valutazione equitativa, rientrando tale pregiudizio nella più ampia categoria del danno non patrimoniale.

89

ID - DRITT

9. La presa di posizione della Corte di Cassazione n.

15350 del luglio 2015.

Tale pronuncia del gennaio 2014 rappresenta un vero e proprio tentativo di scardinare l’ormai centenario orientamento che ripudiava l’idea di un danno tanatologico puro, istanza non accolta dalle Sezioni Unite della Corte che nel luglio 2015 spazzano via quanto argomentato in rimessione, facendo richiamo a pochi concetti e cristallizzate prospettive.

La mancanza di una ratio sanzionatoria e punitiva propria del sistema penale, infatti, deve tenere ferma la finalità che il risarcimento del danno persegue, dai toni compensativi e ripristinatori, scopo, quest’ultimo, che viene maggiormente sottolineato dalla sola risarcibilità dei danni conseguenza, in omaggio alla teoria della responsabilità aquiliana non più soggettiva e legata al paradigma della colpa di jheringhiana memoria. A ben vedere, la ricerca del momento esatto dell’ingresso di un determinato diritto risarcitorio nella sfera giuridica di un soggetto è valutazione ermeneutica molto delicata e rimessa al giudice, che deve essere finalizzata non al mero arricchimento dei congiunti, ma a fini compensativi, che in tale occasione non sembrano, secondo la Corte, perseguibili.

Invero, in un brevissimo inciso, le Sezioni Unite della Cassazione, ponendo in evidenza lo scopo meramente compensativo e mai sanzionatorio del giudizio di responsabilità civile, richiamano come termine di paragone il vietato ingresso delle sentenze straniere di liquidazione di danni punitivi, in un’ottica sistematica e logica. È d’obbligo, allora, domandarsi come il cambio di rotta della Corte di Cassazione del luglio 201730 possa 30

Con la sentenza 16601 del 5 luglio 2017, infatti, la Corte di Cassazione per la prima volta ha affermato la non incompatibilità in senso astratto all’ordine pubblico del concetto di danno punitivo, che, insistentemente, cerca di penetrare nel nostro sistema giuridico attraverso la delibazione di sentenze statunitensi di condanna a risarcimenti ultracompensativi. Tale ultima sentenza sembra rappresentare un notevole passo in avanti rispetto alla cristallizzata impostazione

90

VOLUME XXVIIII

comportare una riapertura del dibattito anche relativa all’ammissibilità del danno tanatologico, viste le sfumature che il risarcimento può talvolta assumere come sostenuto dalla Suprema Corte pochi mesi fa.

Giova, in ogni caso, porre in evidenza che in astratto il concetto di danno tanatologico non è incompatibile con un sistema risarcitorio che abbia come propria finalità quella meramente ripristinatoria, potendo intervenire una disciplina legislativa in grado di favorire una lettura coerente del sistema, proprio come illo tempore avvenne in fase di scrittura del codice civile maltese, figlio della legislazione italiana, seppur in tale occasione completamente di altro avviso. Probabilmente, però, una simile avversità non è esclusivamente legata ad una prospettiva strutturale del sistema risarcitorio, ma ha radici più sottili e profonde, riconducibili ad una serie di valutazioni che con la categorizzazione del diritto civile hanno poco a che fare e che vanno, invece, ad intaccare una serie di considerazioni di tipo socio-economico e politico, come del resto G. Giannini, già più di vent’anni fa poneva in evidenza, e ricollegabili anche al crollo a cui il sistema assicurativo andrebbe incontro in caso di legittimazione al risarcimento del danno da morte.

giurisprudenziale, oggi vacillante dinanzi ad esigenze di dialogo internazionale.

91

Competition Law

An effective regulatory enforcement and sanctions regime post the Federation of Estate Agents Case: the issues Paul Edgar Micallef

Paul Edgar Micallef was appointed as Chief Legal Adviser with the Malta Communications Authority in 2004. 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). In 2014 he was appointed as visiting senior lecturer at the University of Malta. He has specialised in consumer law, telecommunications law, postal services law, travel law and town planning law and has drafted various laws on consumer protection, travel and the leisure industry, telecommunications, e-commerce and postal services for the Government of Malta. He has previously worked in private practice (1985-6), as a judicial assistant with the Law Courts (19871990), as legal counsel with the Department of Consumer Affairs in Malta [1992-97] and with the Planning Authority [1997-2001]. Between 2001 to 2007 he was a member of the Malta Consumer Affairs Council a statutory advisory body to the Government of Malta. Over the years he has published numerous papers in various legal journals and books on the subjects of his expertise notably consumer law and communications law.

ID - DRITT

1. Introduction

O

ne of the key components of any regulatory regime responsible for competition is that the competent regulatory authority has, as part of its toolbox, adequate enforcement and sanctioning powers. There are generally two options which may be considered when providing regulatory authorities with such powers. One option is to enable the regulatory authority to impose sanctions itself, generally in the form of punitive administrative fines, with a right of review before an independent adjudicative body from any decision taken by the regulatory authority to impose such sanctions. A second option is that the regulatory authority applies to an independent adjudicative body, either a court or a specialised adjudicative forum - requesting that body to impose appropriate sanctions against the non-compliant person. In turn, this second option can be subdivided into two. The regulatory authority may ask for the imposition of criminal sanctions consisting of fines of a criminal nature or imprisonment, or both such fines and imprisonment.1 Alternatively, the regulatory authority may ask for the imposition of civil fines.2 The main difference between these two procedures is the standard of proof required. Hence, in the case of the former the prosecuting authority must prove its case beyond reasonable doubt, whereas in the case of the latter, the standard of proof in civil litigation based on the balance of probabilities applies.

In Malta, the option followed depends on the nature of the infringement. If the infringement is considered to be a criminal offence, then the regulatory authority is normally required to make a formal request to the Police asking them to initiate criminal proceedings before the competent court of criminal jurisdiction. If, on the other hand, the infringement is considered to be administrative in nature, then the regulatory authority is in many instances empow1

Under Maltese law a fine of a criminal nature is described as ‘multa’ even in the English language version to denote that that fine is of a criminal nature.

2

One needs to distinguish between ‘administrative fines’ and ‘civil fines’. ‘Administrative fines’ are fines imposed by a regulatory authority, whereas ‘civil fines’ are fines imposed by a court following the completion of civil proceedings before it. In the instance being considered a civil fine would be imposed by a court after a request for the imposition of such a fine has been made by the competent regulatory authority in accordance with the applicable legislation.

94

VOLUME XXVIIII

ered to impose administrative fines itself.3 The line of demarcation between what constitutes a criminal offence and what constitutes an administrative offence is not always clear cut, and at law there are no clear guidelines which serve to determine if an infringement falls under one or the other category. This said, it is relevant to note that under Maltese law, the instances where a regulatory authority may request an adjudicative body to impose civil fines, as distinct from criminal fines, are few in number.4 On the 3 May 2016, the Constitutional Court decided the case in the names of Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni), l-Onorevoli Prim Ministru u l-Avukat Ġenerali(‘the Federation of Estate Agents Judgement’)5 following an appeal by respondents from an earlier judgement in the same case.6 The Federation of Estate Agents judgement may have a significant impact on the enforcement and sanctioning powers that various regulatory authorities in Malta currently have, even though the judgement Itself only relates to the exercise of such powers by the Director General (Competition) (hereinafter referred to as ‘the DG Competition ’) within the Malta Competition and Consumer Affairs Authority (hereinafter referred to as ‘the MCCAA’) .7 In substance, this judgement 3

In extreme cases another sanction is the suspension or withdrawal of the authorisation or licence to operate in a given sector. See for example the Malta Communications Authority Act, Chapter 418 of the Laws of Malta, article 31(2).

4

One such instance is provided for under the Schedule to the Competition Act. The Schedule, which is entitled “Competition Law Infringements (Actions for Damages) Regulations”, provides that the competent court of civil jurisdiction may following an action for damages, impose penalties consisting of punitive fines in certain specified instances, including notably where a person fails or refuses to comply with a disclosure order issued by the Court. See regulation 8 of the aforesaid Schedule.

5

87/2013/1 Federation of Estates Agents vs Direttur Ġenerali (Kompetizzjoni) et, Constitutional Court 3 May 2016.

6

87/2013Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni) et Civil Court First Hall (Constitutional Jurisdiction) 21 April 2015.

7

The First Hall in its judgement voiced its concern about what it described as the ‘slippery slope’ in downsizing human rights and civil liberties, referring amongst others to the powers that the Malta Communications Authority has in imposing similar sanctions under article 33 of the Malta Communications Authority Act (Chapter 418 of the Laws of Malta). See Federation of Estate Agents vs Direttur Generali (Kompetizzjoni) etCivil Court First Hall (Constitutional Jurisdiction) 21 April 2015 p 34.

95

ID - DRITT

has resulted in a situation where, unless amendments to the law are made, the DG Competition cannot impose or even request the imposition of a fine if he considers that there is a breach of the competition laws which he enforces.

This is a situation which, to put it mildly, is of concern since it is unacceptable that the national competition watchdog — the DG Competition — is effectively toothless in curbing anti-competitive practices, especially when one considers that the main tool in ensuring compliance is precisely the imposition of punitive fines. The situation is, if anything, even more worrying since to date matters have been in such a sorry state of affairs for well over a year. As things stand the DG Competition is unable to impose administrative fines if there is a breach of the substantive provisions of the Competition Act, articles 5 or 98, since according to the Federation of Estate Agents judgement, the imposition of punitive fines by the DG Competition by virtue of the applicable provisions of Chapter 3799 is in breach of the Constitution.10 Moreover, Chapter 37911 does not, in the absence of the capability of the DG Competition to exercise such powers, alternatively empower the DG to apply to a court or to another adjudicative body to seek the imposition of appropriate punitive sanctions, since as the law now stands such an option is not contemplated under the said law .12 In practice this means that persons can act in flagrant breach of competition law with the knowledge that no punitive fines can be imposed upon them. The most the DG can do given such circumstances, is to publicise that a person has been found to have acted in breach of competition law or to issue a cease and desist order. However even in the case of a cease and desist order, if the undertaking against which the order is addressed chooses to ignore such an order, the DG Competition does not have any effective means of punishing non-compliance with such an order once as things stand, 8

Competition Act, Chapter 379 of the Laws of Malta, articles 5 and 9.

9

ibid.

10

The articles in question are 12A, 13, 13A and 21 of the Competition Act.

11

Competition Act, Chapter 379 of the Laws of Malta.

12

Article 5 of the Competition Act deals with prohibited agreements and practices whereas article 9 of the same Act deals with the abuse of a dominant position.

96

VOLUME XXVIIII

he cannot impose any punitive fines.13 In October 2016, matters came to a halt when the DG Competition concluded that though he had the intention of imposing an administrative fine on the offending undertaking, given the Federation of Estate Agents judgement, he decided not to impose any fine.14 This conclusion by the DG Competition should have set off alarm bells for the Government to take remedial measures in short order. Moreover, the impact of this judgement does not necessarily stop with the DG Competiton , and may also negatively affect the powers of other regulatory authorities which have enforcement and sanctioning powers similar to those of the DG Competition, including the Director General (Consumer Affairs) within the MCCAA itself.

At the time of writing, the Government has yet to definitively address the issues arising as a result of this judgement. A proposal was made by Government to amend article 39(1) of the Constitution.15 However, this proposal did not see the light of the day due to the lack of consensus from the Opposition. The proposal by Government consisted of an amendment of article 39(1) of the Constitution which required a two-thirds majority of Parliament and therefore the support of the Opposition.16 The Opposition seemed to have had some reservations about the amendment proposed by Government wherein it argued that rather than amending the Constitution, it is the applicable provisions of Chapter 37917 and other applicable laws which should be amended.18 The Federation of Estate Agents Judgement has 13

See articles 17 and 21 of the Competition Act.

14

See the Decision of the Office for Competition dated 4 October 2016 Case Comp-MCCAA 3/2015. This case related to the energy sector. The DG Competition concluded that two undertakings - Falzon Group and M & N Camilleri Petrol Station - had infringed article 5(1)(a) of Chapter 379 of the Laws of Malta when they entered into a resale price maintenance agreement which had as its object the prevention, restriction or distortion of competition by indirectly fixing the selling price of diesel.

15

Constitution of Malta, article 39(1).

16

The amendment to the Constitution proposed by the Government was not made public.

Up to the writing of this contribution no draft bill providing for such amendments have been published.

17 18

Competition Act (n 12).

Clyde Puli, ‘Safeguarding Consumers’ rights’ Times of Malta (Malta, 18 January 2017)

97

ID - DRITT

stirred a hornets’ nest impacting, what until some months ago, was an undisputed process as to how various regulatory authorities in Malta could ensure regulatory compliance by imposing substantial punitive fines on non-compliant persons. In this context, it is important first to understand what the issues raised in the judgement are and, what the Constitutional court ultimately decided. The next step, is then to consider what effective measures should be taken to address matters in the light of what that court decided.

2. The Federation of Estate Agents case - the judgement of the First Hall19 This case arose following the contestation by the Federation of Estate Agents (‘the Federation’) of investigations conducted by the DG Competition under Chapter 379.20 The Federation filed a constitutional application against the DG Competition, the Prime Minister, and the Attorney General (‘respondents’) before the First Hall of the Civil court sitting in its constitutional jurisdiction (‘First Hall’).21 In its application to the First Hall, the Federation argued that investigative proceedings instituted by the DG Competition against the Federation under Chapter 37922 in relation to the alleged breach by the Federation of article 5(1) of the said law23 and of article 101(1) of the Treaty on the Functioning of the European Union (‘TFEU’)24, amounted to a breach of the fundamental rights of the Federation protected under the Constitution of Malta (‘the Constitution’) and, under the European Convention for the Protection of Human Rights and Fundamental Liberties (‘the European Convention’). <https://www.timesofmalta.com/articles/view/20170118/opinion/Safeguarding-consumers-rights.636839> 19

Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni) et (n 7).

20

Competition Act (n 12).

21

The lawsuit was filed on the 11 November 2013.

22

Competition Act (n 12).

23

Competition Act (n 12) article 5(1).

24

The Treaty on the Functioning of the European Union [2012] OJ C326/47, article 101.

98

VOLUME XXVIIII

The Federation said that, under Chapter 37925, the DG Competition has the power, after concluding his investigations, to decide if there is a breach of articles 5 and, or 9 of Chapter 37926, and, or of articles 101 and, or 102 of the TFEU.27 In the event that he does conclude that there is a breach, to issue orders as provided for in article 13 of Chapter 37928, with the faculty of imposing administrative fines, which fines can be as much as ten per cent of the total turnover of the undertaking or of the association of undertakings concerned in the preceding business year.29 The Federation added that there is a right of appeal before the CompetCompetition and Consumer Appeals Tribunal (hereinafter referred to as ‘CCAT’) from any such decision that the DG Competition may make, and a further right of appeal on a point of law from decisions of the CCAT before the Court of Appeal sitting in its superior jurisdiction. The Federation noted that the power of the DG Competition to impose what it described as severe fines — ‘multi severi’ — intended to have a deterrent effect, actually rendered such charges as criminal in nature, and therefore criminal offences according to article 39(1) of the Constitution30, and criminal offences according to article 6(1) of the European Convention.31 The Federation argued that the Constitution requires a person who is accused of a criminal offence, is to be tried before an independent and impartial court, adding that the word ‘Court’ for the purposes of the Constitution refers only to the Constitutional Courts, and to the Criminal and Civil Courts whether of superior or inferior jurisdiction. The Federation noted that the term ‘Court’ did not include the CCAT or the DG Competition, and therefore for the purposes of the Constitution it couldn’t be considered as a ‘Court’ either.

The respondents in their reply to the application of the Federa25

Competition Act (n 12).

26

Competition Act (n 12) articles 5 and 9.

27

The Treaty on the Functioning of the European Union (n 24) articles 101 and 102.

28

Competition Act (n 12) article 13.

29

Competition Act(n 12) article 21(1).

30

Constitution of Malta (n 15).

31

ECHR article 6(1).

99

ID - DRITT

tion, argued in the first instance that the lawsuit initiated by the Federation was premature given that the DG Competition had not issued a final decision as to whether the Federation had acted in breach of the law, and that no decision had been made by the DG Competition imposing any administrative fines. The respondents argued that decisions taken by the DG Competition could be overturned by the CCAT and, subsequently, by the Court of Appeal. Interestingly, the Respondents did not contest that the administrative fines the DG Competition may impose under Chapter 37932 could be considered as a penalty of a criminal nature — ‘forom ta’ pieni ta’ natura kriminali’.33 However, the respondents argued that a distinction must be made between those penalties belonging to what they described as ‘hard core of criminal law’ and ‘cases not strictly belonging to the traditional categories of the criminal law’. According to the respondents, the administrative fines provided for under Chapter 37934 belong to the latter category and therefore, are not incompatible with the right of fair hearing, whereby administrative fines may in the first instance be imposed by administrative bodies which have the power to both investigate and to issue decisions. The respondents noted that once the decision of the administrative body — in this case the DG Competition — was subject to review by an authority empowered with judicial functions — namely the CCAT — then there should be no issue with the requirements ensuring a fair hearing.35 Significantly, the First Hall in its judgement noted that prior to May 2011, whilst the (then) Director for Fair Competition was responsible for investigating a breach of competition law, the power to impose any fines for any such breach resided within the court of Magistrates.36 The First Hall in its evaluation of the case listed three 32

Competition Act (n 12).

33

Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni) et (n 7) p 8 et seq. .

34

Competition Act (n 12).

35

Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni) et (n 7) p 15 et seq.

36

Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni et)(n 7) p 21 et seq. Act VI of 2011 amended Chapter 379 creating the position of the DG Competition in lieu of the Director of Fair Trading. Until then infringements of competition law, including notably of articles 5 and 9 of Chapter 379, were considered criminal offences, and neither the former Director of Fair

100

VOLUME XXVIIII

points which it said needed to be analysed, namely: if the procedures under Chapter 37937 have the features of a criminal offence; if the DG Competition or CCAT can be considered as a ‘court’; and if the DG Competition or the CCAT are an independent and impartial tribunal.

The First Hall observed that whilst under Chapter 37938 the offence in question — in this case a breach of article 5 of that law — is classified as being of an administrative nature, the nature of the offence and the nature and severity of the penalty changed matters completely to the extent that the offence had to be considered as being criminal in nature.39 The First Hall said that the fine was intended as a deterrent and not as pecuniary compensation, and that the amount of fine was substantial, adding that the proceedings initiated under Chapter 37940 did not relate to civil rights and obligations, but to enforcement by a public authority. The First Hall, accordingly, held that the infringements of which the Federation was being accused were offences of a criminal nature and that consequently the requirements under article 39(1) of the Constitution41 and article 6(1) of the European Convention42 applied. The First Hall specifically referred to article 39(1) of the Constitution43 which states that any person accused of a criminal offence must be given a fair hearing within a reasonable time before an independent and impartial court.44 The First Hall said that the DG Competition certainly cannot be considered to be an impartial and independent court set up by law. With regard to the CCAT, the First Hall noted that this tribunal is composed of a judge and two ordinary members nominated by the President of Malta which ordiTrading nor the former Commission for Fair Trading had any power to impose administrative fines or civil fines.

37

Competition Act (n 12).

38

Competition Act (n 12).

39

Federation of Estate Agents vs Direttur Ġenerali (n 7) p 4 et seq. The Federation argued that it was liable to an administrative fine which could reach up to 1.25 million euro.

40

Competition Act (n 12).

41

Constitution of Malta (n 15).

42

ECHR (n 31).

43

Constitution of Malta (n 15).

44

Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni) et (n 7) p 26 et seq.

101

ID - DRITT

nary members are not judges, adding that such members are appointed for a three year term and may be removed at the end of the term and are paid by the Prime Minister. The First Hall accordingly held that the tribunal was not an impartial and independent court enjoying the guarantees provided by the Constitution.

The First Hall further noted that appeals to the Court of Appeal from decisions of CCAT were limited to appeals on point of law and did not extend to contestations on point of fact.45 The First Hall decided that for the above reasons the relevant enforcement provisions of Chapter 37946 which in substance empowered the DG Competition to impose administrative fines, were both in breach of article 39(1) of the Constitution47 and of article 6(1) of the European Convention. 48

3. The Federation of Estate Agents case - the judgement of the Constitutional Court49 The DG Competition and the Attorney General lodged an appeal from the judgement of the First Hall before the Constitutional Court.50 The Constitutional Court confirmed the judgement of the First Hall51 other than with regard to alleged breach of article 6 of the European Convention52, whereby it determined that was no breach of article 6.53 In this regard, the Constitutional Court held that the fact that the fine could be imposed by an administrative authority 45

Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni) et (n 7) p 30 et seq.

46

Competition Act (n 12).

47

Constitution of Malta (n 15).

48

ECHR (n 31).The provisions in question of Chapter 379 are articles 12A (finding of an infringement by the DG), 13 (cease and desist order and compliance order), 13A (appeals before the CCAT) and 21 (administrative fines).

49

Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni) et (n 6).

50

The First Hall decided that the Prime Minister should not have been sued, and therefore dismissed all claims against him.

51

Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni) et(n 7).

52

ECHR (n 31).

53

Federation of Estate vs Direttur Ġenerali (n 6) p 65 et seq. .

102

VOLUME XXVIIII

which is not an independent and impartial tribunal, is not necessarily incompatible with article 654 provided that the decision of the said authority imposing the fine is also subject to review by a tribunal which has full jurisdiction to determine both points of law and of fact. The Constitutional Court said that the CCAT does have such full jurisdiction.55 The Court, in relation to the arguments raised by the Federation vis-a-vis the ordinary members of the CCAT, dismissed these since it considered that there are enough guarantees at law to dispel any doubts about the impartiality and independence of the ordinary members of the CCAT.56

4. The position following the Federation of Estate Agents Case57 As things stand, following the conclusion of the Federation of Estate Agents case58 with the judgement of the Constitutional Court of the 3 May 2016, unless the law is changed the DG Competition cannot impose any fines or request the imposition of any fines if there is a breach of competition law. This position was confirmed in a decision by the DG Competition issued last October when the DG stated that the Office for Competition had the intention to impose an administrative fine on a non-compliant undertaking who allegedly acted in breach of article 5 of Chapter 379.59 However, in the light of the judgement given by the Constitutional court in the Federation of Estate Agents case60, the office decided not to do so, taking also into account the interpretation given by the CCAT in various cases subse54

ECHR (n 31).

55

Federation of Estate vs Direttur Ġenerali (Kompetizzjoni) et (n 6) p 56 et seq. The Constitutional court referred to article 13A of Chapter 379.

56

Federation of Estate vs Direttur Ġenerali (Kompetizzjoni) et (n 6) p 63 et seq.

57

Federation of Estate vs Direttur Ġenerali (Kompetizzjoni) et (n 6)

58

Federation of Estate vs Direttur Ġenerali (Kompetizzjoni) et (n 6)

59

Competition Act (n 12) article 5.

60

Federation of Estate vs Direttur Ġenerali (Kompetizzjoni) et (n 6).

103

ID - DRITT

quent to the aforesaid judgement.61 The logical next step given such a position, is for Government to enact the necessary amendments to the law to ensure that there are effective sanctions if there is no compliance with the requirements under competition law. At the time of writing such amendments have not yet been enacted.

5. The impact on other regulatory authorities A consequence of the Federation of Estate Agents judgement is the impact on the enforcement and sanctions powers of other regulatory authorities. The First Hall in its judgement in the Federation of Estate Agents case62, had referred to the submissions of the respondents who in support of their case referred to various laws enacted in recent years empowering various regulatory authorities to impose substantial fines. The First Hall in its reaction to these submissions, said that giving such powers to other regulatory authorities did not give more legitimacy to the power of the DG Competition to impose fines as provided for under Chapter 379.63 If anything, according to the First Hall, such powers afforded to other authorities only served to fuel the concern of the First Hall that such measures could lead to what that Court described as the ‘slippery slope’ undermining fundamental human rights and liberties.64 In making its observations the First Hall referred in particular to article 33 of the Malta Communications Authority Act65, article 31(1) of the Malta Resources Authority Act66, article 16A of the Investment Services Act67 and article 68(1) of the Lotteries and other Games Act.68 This observation by the First 61

Decision of the Office for Competition Case COMO-MCCAA 3/2015issued on the 4 October 2015, at page 71 et seq thereof.

62

Federation of Estate Agents vs Direttur Ġenerali (Kompetizzjoni) et (n 7).

63

Competition Act (n 12).

64

Federation of Estate Agents vs Direttur Generali Kompetizzjoni et (n 7)p 34.

65

Malta Communications Authority Act, Chapter 418 of the Laws of Malta, article 33.

66

Malta Resources Authority Act, Chapter 423 of the Laws of Malta, article 31(1).

67

Investment Services Act, Chapter 370 of the Laws of Malta, article 16 A.

68

Lotteries and other Games Act, Chapter 438 of the Laws of Malta, article 68(1).

104

VOLUME XXVIIII

Hall implies that the power to impose sanctions consisting of punitive fines enjoyed by other regulatory authorities such as the Malta Communications Authority (hereinafter referred to as ‘the MCA’) may also be impacted as a result of the judgement in the Federation of Estate Agents case.

However, it is pertinent to note that there are certain important differences between the enforcement and sanctioning powers enjoyed by the different authorities. Hence, to take the example of the MCA, decisions imposing administrative fines taken by the MCA may be contested before the Administrative Review Tribunal (‘ART’) whose decisions are taken by a magistrate.69 This is in contrast to contestations of similar decisions imposing fines taken by the DG Competition before the CCAT — the decisions of which body are taken by a judge together with two ordinary members who are not members of the judiciary.70 A further consideration which serves to highlight the difference in procedure, is that in the case of a final decision taken by ART, following a contestation of an MCA decision, there is a further right of appeal on both points of law and of fact to the court of Appeal (Inferior Jurisdiction). Conversely, in the case of a decision taken by the CCAT following the contestation of a decision by the DG Competition imposing a fine, there is only a right of appeal on a point of law to the court of Appeal (Superior Jurisdiction).71 Arguably these substantial differences may have led to different conclusions in the Federation of Estate Agents case if the process under contestation was similar to that as established under Chapter 41872, given that both at the first level and second level of review the final decision on issues of fact and law is taken exclusively by either a magistrate 69

Administrative Justice Act, Chapter 490 of the Laws of Malta, article 8. Two assistants may be appointed to ‘assist’ the Tribunal, however these assistants have no voting powers and the final decision of the Tribunal is the sole responsibility of the presiding magistrate. In this regard see Administrative Justice Act, Chapter 490 of the Laws of Malta, article 10.

70

This was precisely one of the issues mentioned by the Federation where it raised doubts about the impartiality and independence of the ordinary members of the CCAT given that they are not members of the judiciary and are appointed by the President of Malta acting on the advice of the Prime Minister for a fixed three year term.

71

See Malta Communications Authority Act, Chapter 418 of the Laws of Malta, article 38 and Administrative Justice Act, Chapter 490 of the Laws of Malta, article 8.

72

Administrative Justice Act (n 69).

105

ID - DRITT

or a judge. Notwithstanding such considerations, the paramount issue that punitive fines are considered to be of a criminal nature and, therefore, should be determined only by a court as recognised for the purposes of article 39(1) of the Constitution73, remains. Therefore, the importance of addressing the issues raised in the Federation of Estate Agents judgement, need to be seen to in short order, otherwise, there is a real risk that the whole edifice underlying the enforcement and sanctions powers of various regulatory authorities, may be undermined with serious consequences for the effective regulation of the market in general and, of different sectors in particular.

6. The Irish experience The consideration of the procedures followed in other countries may indicate the route to follow and the pitfalls to avoid in addressing matters post the Federation of Estates Agents judgement. The preferred procedure in various European Union (EU) Member States is to empower the competent national regulatory authority to impose administrative fines with a right of review for the aggrieved undertaking before an independent adjudicative body.74 However, it is pertinent to note that even in those Member States whose regime is based primarily on the imposition of administrative or civil fines, a distinction is made between the sanctions which may be imposed on undertakings and on individuals — with the latter in more serious cases being liable to criminal sanctions including even imprisonment.75 It is interesting to note that under United States (US) Federal law, in 73

Constitution of Malta (n 15).

74

This for example is the procedure followed in Italy where the Autorita‘ Garante della Concorrenza may impose fines in the case of abuse of a dominant position and of agreements restricting competition. Depending on the seriousness of the infringement, such fines can reach up to ten per cent of the gross turnover of the non-compliant undertaking for the previous year of business. There is a right of appeal to the Tribunale Amministrativo del Lazio and subsequently to the Consiglio di Stato. See AGCM, ‘Penalties and Fines’ (2011) 6 <http://www.agcm.it/ en/2015-07-24-16-06-24/penalties-and-fines.html>accessed 6 August 2017>A similar procedure as discussed in this paper is followed in the UK. 75

Keith Jones and Farrin Harrison, ’Criminal Sanctions: An overview of EU and national case law’ e-Competitions National Competition Laws Bulletin No64713, 3ff <http://awards.concurrences.com/IMG/pdf/keith_jones> accessed 6 August 2017.

106

VOLUME XXVIIII

stark contrast to the approach taken by the EU, a strong emphasis is made on the criminal liability of the individual for competition law infringements, where for example, an individual who takes part in a cartel in the US is liable up to ten years imprisonment. Increasingly however, in various EU Member States, criminal penalties for individuals for serious infringements of competition law are being introduced.76 One practical consideration as to why various EU Member States have introduced such measures, is that employees of undertakings will think twice before being party to anti-competitive practices if then they may be personally liable to severe criminal sanctions.

The Irish experience in the realm of regulatory sanctions and enforcement, in relation to competition law, is an eye-opener about the problems that can arise if the procedure is tied almost exclusively to sanctions of a criminal nature, whereby the regulatory authority is required to apply to court for the imposition of punitive fines. As has now happened in Malta, constitutional law considerations have conditioned the competition law sanctions regime in Ireland, undermining to some extent, the effectiveness of the said regime.77 The current position under Irish Competition law in relation to the imposition of sanctions somewhat resembles the position as it was under Maltese Competition law prior to the April 2011 amendments to Chapter 379.78 The core substantive provisions under the Irish Competition Act are 76

Hence in 2011 for example some 40 individuals received an average prison sentence of 17 months in the US for their involvement in cartel activities. This contrasts with the approach by the EU which only caters for administrative fines in relation to infringements by undertakings.

See Marco Slotboom, ‘Individual Liability for Cartel Infringements in the EU: An Increasingly Dangerous Minefield’ (Kluwer Competition Law Blog, April 25 2013) < http://kluwercompetitionlawblog.com/2013/04/25/individual-liability-for-cartel-infringements-in-the-eu-an-increasingly-dangerous-minefield/> accessed 6 August 2017.

77

This issue was discussed at some length in an article entitled “’Filling a gap in Irish competition law enforcement: the need for a civil fines sanction’. See Gerald FitzGerald and David McFadden, ‘Filling a gap in Irish competition law enforcement: the need for a civil fines sanction’ (2011) The Competition Authority <https://www.ccpc.ie/business/wp-content/uploads/ sites/3/2017/05/2011-06-09-Filling-a-gap-in-Irish-competition-law-enforcement-the-need-fora-civil-fines-sanction.pdf> accessed 6 August 2017.

78

Competition Act (n 12). Act VI of 2011 was enacted on 29 April 2011 and its provisions, including those amending Chapter 379 were brought into force on the 23 May 2011 as per L.N. 190 of 2011.

107

ID - DRITT

sections 4 and 579, regulating respectively prohibited agreements and abuse of a dominant position.80 Under the Irish Competition Act, it is a criminal offence if a person acts in breach of either sections 4 or 5, or of Articles 101 or 102 of TFEU.81 The responsibility of investigating infringements under the Irish Competition Act lies with the Competition and Consumer Protection Commission (‘CCPC’) which depending on the gravity and nature of the infringement, may either lead to a summary prosecution before the District Court, or if serious infringements are involved refer the case to the Director of Public Prosecutions for prosecution on indictment.82 The current system of criminal prosecution under Irish Competition law has been described, by the former Irish Competition Authority (which preceded the CCPC), as being ‘neither appropriate nor practical for non-hardcore infringements’, the said Authority arguing that the absence of civil sanctions is ‘a serious weakness in the Irish Competition law enforcement regime’.83 Interestingly, initially, Irish Competition law did not even envisage public enforcement powers or sanctions of any kind, relying on private parties who suffered a loss as a result of anti-competitive practices to seek redress before the competent court of civil jurisdiction. This lacuna was eventually addressed when amendments were introduced giving the then Irish Competition Authority extensive investigative powers, whilst providing that infringements of prohibitions of anti-competitive behaviour constitute criminal offences. At a later stage new laws were enacted introducing severe criminal sanctions for what are described as hardcore offences, drawing a distinction between the penalties for such offences as distinct from those for the non-hardcore infringements.84 79

Competition Act 2002 (ISB), articles 4 and 5.

80

These sections are in substance similar to articles 5 and 9 of Chapter 379.

81

Competition Act (n 79) articles 6 and 7.

82

Until 2014 the competent national competition authority in Ireland was the (Irish) Competition Authority. In 2014 a new body – the Competition and Consumer Protection Commission - was established with joint responsibilities for competition and consumer protection. See <http://www.ccpc.ie/about/who-we-are> accessed 6 August 2017.

83

FitzGerald’Filling a gap in Irish competition law enforcement: the need for a civil finessanction’ (n 77) 2ff 84

ibid 5ff. The hardcore offences relate mainly to cartel activity related in particular to price-fix-

108

VOLUME XXVIIII

The issue remains that, in relation to what are described as non-hardcore infringements, the current criminal sanctions are not seen as being the appropriate solution — the argument being made in favour of the introduction of civil fines for such infringements.85

7. The United Kingdom experience The United Kingdom (‘UK’) Competition Act86 provides both for criminal, and, civil sanctions. The former sanctions relate mainly to the investigative functions of the Competition Market Authority (hereinafter referred to as ‘the CMA’), where for example false or misleading information is knowingly provided or else, CMA officers investigating alleged infringements are obstructed in the performance of their duties.87 The core substantive competition provisions under UK law are dealt with in Chapters I and II of the Competition Act.88 In the case of an individual who commits a competition law infringement, the CMA may apply to court for his disqualification as a director of the undertaking concerned. Significantly, a breach of a disqualification order is a criminal offence and may even lead to imprisonment of up to two years and, or a criminal fine. The CMA does not generally apply for such an order, unless there has been a prior finding that the said undertaking committed a breach of competition law. Moreover, under the UK Enterprise Act 2002, an individual who participates in a cartel is on conviction liable to criminal sanctions including imprisonment.89 An undertaking which acts in breach of either Chapter I or II of the ing, restricting output or limiting production, bid-rigging, and market allocation.

85

ibid 13ff.

86

Competition Act 1998 (UK).

87

ibid section 42. In serious cases such as wilful destruction of documents or providing false information, the sanctions include imprisonment of up to two years.

88

Chapter I prohibits any agreement or concerted practice which has the object or effect of preventing, restricting or distorting competition, whereas Chapter II prohibits the abuse of a dominant position.

89

Enterprise Act2002 (UK),sections 188 and 190.

109

ID - DRITT

UK Competition Act, is liable to administrative fines of up to a maximum level of ten per cent of its worldwide turnover in the previous business year. In imposing the fine, the CMA must be satisfied that the infringement was committed either intentionally or negligently.90 The undertaking concerned may contest the fine itself or the amount of the fine before the Competition Appeal Tribunal (‘CAT’).91 The Tribunal may confirm, set aside, or vary the decision taken by CMA, or remit the matter to the CMA, or make any other decision that the CMA could have made. A further appeal from decisions of the CAT lies to the competent Court of Appeal either, on a point of law or, in the case of a fine from the imposition or the amount of the fine.92

8. The options available Leaving matters as they currently are is not an option. Certainly, one cannot accept a situation where those who act in breach of competition law - are not liable to any punitive sanctions as a result of the present deplorable situation.93 There should be no argument about this point. Those who breach the law should not be permitted to act with impunity. Ancillary to this point is the equally important consideration that an individual, as distinct from an undertaking, should incur some form of criminal liability if he intentionally is party to serious anti-competitive practices. As things stand, Chapter 37994 is seriously deficient in this regard. Possibly measures might be taken under general criminal law provisions in relation to other offences proscribed there under. The issue however is that as things stand there are no express provisions which punish individuals who engage in serious cartel related practices. The criminal sanctions un90

Competition Act (n 86) section 36.

91

See Competition Appeal Tribunal, ‘About the Tribunal’ (2017) <http://www.catribunal.org. uk/242/About-the-Tribunal.html>accessed 7 August 2017 92

The competent appellate forum varies according to which part of the UK the CAT proceedings relate to.

93

See for example the decision of the Office of Competition of 4 October 2016 in case COMP-MCCAA 3/2015 pages 73 and 74.

94

Competition Act (n 12).

110

VOLUME XXVIIII

der Chapter 37995 do not apply to infringements of articles 5 and 9 of the said Act, and address only specific issues tied with the payment of fines imposed, the provision of information and the obstruction of investigations. Chapter 379 provides that ‘any person being a director, secretary or manager or other similar officer of the undertaking or association of undertakings concerned’ is, if the undertaking or association of undertakings fails to pay any administrative fine imposed, liable on conviction to a fine (multa) of not less than 1,000 euro and not more than 20,000 euro.96 I question the fairness of holding individuals criminally liable simply on the basis of the post they have, if the undertaking with whom they work fails to pay an administrative fine. Criminal liability should arise if it is shown that the individual concerned deliberately acted in such a manner as to be an active participant in the non-payment of the administrative fines due by the undertaking, and not simply because the individual happens to be a high-ranking official of the non-compliant undertaking. As a minimum, there should be an element of clear intention and of the active and conscious participation of the individual involved. Conversely, individuals who intentionally participate in anti-competitive practices should be liable for their wrong doing.

The issue ultimately is to determine what means should be employed to ensure that there are in place effective enforcement procedures and sanctions, whilst ensuring that there is adherence with the requirements of the Constitution in the light of the Federation of Estate Agents judgement. The obvious sanction in instances of non-compliance with the core provisions of competition law is to impose punitive fines which are sufficiently dissuasive. The issue is whether such sanctions should be imposed by the competent regulatory authority - namely the DG Competition - or else whether the DG Competition should be required to apply to a court or an adjudicative forum, which in turn determines if a fine should be imposed 95

Competition Act (n 12).

96

Competition Act (n12) article 21A. For the sake of completeness, it is pertinent to note that individuals are criminally liable under Chapter 379 in certain given circumstances such as where they provide false or misleading information, hinder or prevent investigations, or without reasonable cause do not provide requested information in good time. See Competition Act, Chapter 379 of the Laws of Malta, article 21(5) and (6).

111

ID - DRITT

and, where applicable, the quantum of such a fine. A subset of this latter option is whether the fines that a court may impose should be in the form of sanctions of a criminal nature or alternatively of a civil nature. The fundamental issue brought forth as a result of the Federation of Estate Agents judgement is that a person who is accused of a serious infringement of the law which is sanctioned by punitive fines should be guaranteed a fair hearing by an impartial and independent court. Should this per force97 exclude the possibility that such fines are imposed by an independent regulatory authority if there is the added safeguard that a decision taken by the aforesaid authority cannot be enforced if it contested within a determined period before a court or an independent adjudicative body?

The Federation of Estate Agents judgement raises another issue.

Strictly speaking, if once the punitive fines in question are considered to be criminal in nature, then such fines may only be imposed by a court with the competence to determine criminal sanctions. This in turn, means that the degree of proof in dealing with such cases would be that required in criminal cases – namely that the burden of proof is beyond reasonable doubt. In reality therefore if one were to strictly adhere to the Federation of Estate Agents judgement, the only option is to empower a court which at law is empowered to impose sanctions of a criminal nature.

9. Conclusion The point of departure in determining what should be done following the Federation of Estate of Agents judgement is to identify what the end-goals are. There must be punitive and dissuasive fines in place both with regard to non-compliant undertakings and individuals. Non-compliance with articles 5 and 9 of Chapter 37998 can have a serious and negative on the well-being of a competitive market. There are three issues which need to be addressed. The first is whether the fines should be administrative or civil fines on the one 97

By force of circumstances.

98

Competition Act (n 12) articles 5 and 9.

112

VOLUME XXVIIII

hand or, alternatively, criminal fines. The second, is whether such fines should be imposed by the competent regulatory authority — in Malta’s case, the DG Competition — or by a court or a special adjudicative body composed of a judge or magistrate. Finally, and this seems to be a point which does not appear to have been discussed at length in Malta, is the question of whether individuals who intentionally participate in serious anti-competitive practices should be held criminally liable.

My suggestion is to amend current competition law whereby, the DG Competition whilst empowered to issue punitive administrative fines against non-compliant undertakings as distinct from individuals, will only be able to proceed with the collection of such fines after the lapse of the period during such decisions can be contested before an independent adjudicative body. If the decision imposing the fine on the undertaking is contested, then the liability of the undertaking concerned to pay the fine should only arise following the final determination of the appeal by the competent adjudicative body confirming the decision of the DG Competition. One practical consideration which militates in favour of such a decision being taken by the DG Competition, relates to those instances where the decision taken provides for the imposition of daily fines which continue until there is compliance with the applicable competition law provisions. Even in a scenario where the decision of the DG Competition imposing daily fines is not implemented pending the final outcome of an appeal before an adjudicative body, the fact that the non-compliant undertaking may if it persists in its allegedly anti-competitive practices for the duration of the appellate proceedings, end up facing hefty fines, should in most instances serve an effective measure to ensure immediate compliance. If on the other hand, the decision to impose daily fines lies not with the DG Competition but with a court or a similar adjudicative body acting following an application for the imposition of such sanctions by the DG Competition, then there is a real risk that for the duration of the time it takes for the court or adjudicative body to issue a final decision, the undertaking may persist with its alleged anti-competitive practices to the detriment of the market.

113

ID - DRITT

Following such a route however does not address the main issue raised by the Federation of Estate Agents judgement — namely, that once such sanctions are punitive and therefore, criminal in nature, the person concerned99 must be given a fair hearing before a court.

The obvious solution to address this is to amend article 39(1) of the Constitution100 to ensure that the current adjudicative fora have the power to issue punitive fines. Even if this route is taken, Chapter 379101 should be reviewed to ensure that there are effective measures including criminal liability in the case of the more serious infringements.

Alternatively, the other option is to revisit both the role and the composition of the DG Competition and of the CCAT. In the case of the former in relation to enforcement, the role of the DG would then be to investigate infringements and where applicable, to apply for the imposition of sanctions to a court or a similar adjudicative body.

If such a route is followed the better option would be to establish a specialised competition court composed of a judge or magistrate. A possible model for such a court could be the ART, whose decisions are taken by a magistrate who is assisted by lay experts with no vote in the final decisions.

Whatever legislative solution is adopted, one measure that should be included as part of the overall measures following the Federation of Estate Agents judgement is the introduction of criminal liability of individuals who intentionally take part in serious anti-competitive practices including notably cartels. This is a serious lacuna in Maltese law and, should be addressed in short order. There is no valid reason why an individual who intentionally participates in serious anti-competitive infringements should not be answerable for his actions and therefore, subject to criminal sanctions, if convicted by the competent court of criminal jurisdiction.

Irrespective of the issues brought forth as a result of the Federation 99

The person concerned in this case would be the non-compliant undertaking.

100

Constitution of Malta (n 15).

101

Competition Act (n 12).

114

VOLUME XXVIIII

of Estate Agents judgement, the relevant provisions of Chapter 379102 relating to enforcement and sanctions need to be revisited.

The enforcement and sanctions history of the DG Competiton within the MCCAA following the amendments to Chapter 379103 in 2011 is not one of glowing success. Very few fines have been imposed and, subsequently, collected. There is some irony in the fact that the Federation of Estate Agents initiated its constitutional law case on the grounds that it might end up on the receiving end of a hefty one million euro fine, when in the entire life span of the Office of the DG Competition, commencing from May 2011 (now six years to date), the fines in their totality actually imposed and collected throughout this period amount to a few thousand euro — which is hardly the hallmark of an overzealous competition watchdog imposing fines in a cavalier fashion. The criticism that should be levelled at the Office of the DG Competition is that it has been too cautious and not proactive enough.104 The Federation of Estate Agents judgement should be seized as an opportunity to address matters, and ensure that there is in place a regulatory regime, which effectively does dissuade potential wrong-doers from infringing competition law.

In addressing matters in a comprehensive manner, one should not, in absolute terms, exclude the possibility of amending the Constitution, if this is what it takes to ensure that there is in place an effective regulatory regime whilst ensuring that fundamental human rights and liberties are safeguarded. Recourse to such amendments should be considered as a matter of last resort but, certainly, should not be excluded. The bottom line in taking forward the required amendments to existing competition law should be motivated by the importance and necessity of having a regime which is effective and, is able to address possible infringements in short order, whilst ensuring that both undertakings and 102

Competition Act (n 12).

103

Competition Act (n 12).

104

Reply to Parliamentary Question no. 27947 given on the 25 October 2016 whereby the Minister responsible for competition was asked about the number of administrative fines imposed and paid since 2011. In her reply the Minister stated that during this period two fines were imposed and paid one of €1000 and another of €2000.

115

ID - DRITT

individuals under investigation have adequate means of redress at law in protecting their legitimate interests. There is no simple clear cut solution however, whatever route is taken, it is imperative that any changes to the law are complemented with the will-power at both political and administrative levels to ensure that the competent regulatory authorities are properly staffed and equipped to perform their functions. Amending laws to improve the existing regulatory regime is positive. However, to achieve the desired goals there must be the willingness to ensure the efficiency of the regime adopted. If such a willingness does not exist, then it is futile to propose legislative changes.

116

Criminal Law

An analysis of the Maltese Criminal Law on Female Genital Mutiliation and reflections on potential legal & social consequences Jeanise Dalli

Jeanise Dalli graduated from the University of Malta with a Bachelor of Laws with Philosophy Degree in 2012, and acquired a Doctor of Laws degree in 2015. She is a volunteer legal adviser at the Migrant Women Association, and is currently a PhD Candidate and a scholarship-holder at the Martin Luther University in Germany.

VOLUME XXVIIII

1. Introduction

I

n January 2014, a new criminal offence was introduced to the Criminal Code1 of Malta, specifically under Title VIII, dealing with ‘Crimes against the Person’ and sub-title IX concerning ‘Threats, Private Violence and Harassment’. The relevant Criminal provision is Article 251E2, which entered into force through Act I of 2014.3 As is indicated in the marginal note, Article 251E criminalised ‘Female Genital Mutilation’ (henceforth ‘FGM’). It is noteworthy to mention that, prior to the introduction of this Criminal provision into the Maltese Criminal Code, these so-called ‘phenomena’ were never the subject of any case law before the Criminal Courts of Malta.

An analysis of the relative Maltese Parliamentary debates4 led to the conclusion that there are three main factors which motivated the introduction of sui generis legislation covering FGM. Firstly, the encounters of medical and health attendants with women who had undergone such intervention — many of whom were asylum-seekers from the sub-Saharan African region — presented major cultural challenges within the health care sphere, particularly in obstetric care. Secondly, with the increase in irregular migration flows from FGM-practicing countries, there was great concern about the possibility of FGM being practiced in Malta. Thus, politicians and health attendants felt the need to put measures of prevention into place, in the eventuality of any attempts of FGM on daughters of migrants or girls, born to a Maltese citizen and a parent coming from an FGM-practicing country or community. Thirdly, implicit in these debates was the political will that Malta joins other European countries in the fight against FGM by adopting a harmonised approach towards these bodily practices.5 1

Criminal Code, Chapter 9 of the Laws of Malta.

2

ibid article 251E.

3

The enabling Act also criminalized ‘enforced sterilization’ and ‘enforced marriage’, found in Articles 251F & 251G respectively.

4

Parliamentary Debates, Twelfth Legislature, Sitting No 101 (10 December 2013), 106 (13 January 2014) and No112 (27 January 2014) <http://www.parlament.mt/sittingdetails?sid=4538&legcat=13&forcat=12> accessed 18 July 2017.

5

Today, most European countries have introduced specific anti-FGM legislation or have rec-

119

ID - DRITT

This article will start by explaining the phenomena of FGM and will give a brief overview of the main debates thereon at the international level. It will then provide a detailed analysis of the legal provision and discuss the potential legal and social consequences of this law within the Maltese jurisdiction. The main focus of this article revolves around the adequacy, or otherwise, of the current Maltese criminal legislation on FGM for the prosecution and prevention of these bodily practices. Despite the inadequacies surrounding the term ‘FGM’, explained in more detail below, since this paper takes a legal approach and for the sake of clarity, it was deemed fit to employ the same term used by the Maltese legislator to address these practices.

2. Understanding the Phenomena of FGM & its Prevalence in Malta One can say that the most frequently encountered definition of FGM is the one developed by the World Health Organization (hereinafter referred to as WHO), which reads: ‘Female genital mutilation (FGM) includes procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons.’6 Therefore, ‘FGM’ is actually an umbrella term comprising a number of bodily practices which WHO classifies into four main types, namely: • • • •

Clitoridectomy (Type I); Excision (Type II); Infibulation (Type III); and other harmful procedures…for non-medical purposes (Type IV).7

ognised FGM within the scope of existing criminal law framework. See for eg Els Lye and Alexia Sabbe (2009) Overview of Legislation in the European Union to Address Female Genital Mutilation: Challenges and Recommendations for the Implementation of Laws, <http://www.un.org/ womenwatch/daw/egm/vaw_legislation_2009/Expert%20Paper%20EGMGPLHP%20_Els%20 Leye_.pdf> accessed 18 July 2017.

6

WHO, ‘Female Genital Mutilation’ (World Health Organization, February 2017) <http://www. who.int/mediacentre/factsheets/fs241/en/> accessed on 9 June 2017.

7

- ‘Clitoridectomy’ is described as ‘the partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals), and in very rare cases, only the prepuce (the fold of skin surrounding the clitoris)’ - ibid;

120

VOLUME XXVIIII

The degree of severity of these practices varies, yet, infibulation is known as the most invasive and painful procedure of all. Historians claim that the origins of FGM can be traced back to the time of the Egyptian pharaohs but the practices then spread to other countries in Africa, the Middle East, and Asia. Nowadays, the practice is concentrated in these areas.8 Countries with a high prevalence rate of FGM include Egypt, Ethiopia, and Indonesia.9 The reasons for the practices vary according to the communities which engage in them (including Muslim, Christian, and animist communities), but they are mainly regarded as a religious and, or moral as well as either a cultural and, or social prescription. Some communities believe that FGM marks the transitioning from childhood into womanhood10 and ensures physical cleanliness whilst enhancing aesthetic beauty. Other, more patriarchal communities perceive it as a necessary prerequisite for a suitable marriage as it ensures virginity before marriage and loyalty throughout and, at the same time, enhancing men’s sexual pleasure.

Interestingly, ethnographers who have conducted research amongst FGM-practising communities in Africa have observed that there usually are different perspectives and explanations of FGM within the same community.11 - ‘Excision’ is ‘ the partial or total removal of the clitoris and the labia minora (the inner folds of the vulva), with or without excision of the labia majora (the outer folds of skin of the vulva )’ - ibid; - ‘Infibulation’ is defined as ‘the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoris (clitoridectomy)’ -ibid.

- To date, the fourth category remains unclassified, with a non-exhaustive list and subsuming all types of procedures which are harmful to a female’s genitalia and which do not fall under the first three categories.

8

See for eg David Gollaher, Circumcision: A History of the World’s Most Controversial Surgery (Basic Books 2001) 195-196.

9

UNICEF, ‘New statistical report on female genital mutilation shows harmful practice is a global concern’ (UNICEF, 5 February 2016) <https://www.unicef.org/media/media_90033.html> accessed 18 July 2017.

10

This is particularly true, for example, for the Kono ethnic group, who reside in the eastern part of Sierra Leone. See for eg Richard A Shweder, ‘Disputing the Myth of the sexual dysfunction of circumcised women’ (2009) 25(6) Anthropology Today 14-17 <https://humdev.uchicago. edu/sites/humdev.uchicago.edu/files/uploads/shweder/Disputing%20The%20Myth%20of%20 the%20sexual%20dysfunction%20of%20cicumcised%20women.pdf> accessed 18 July 2017.

11

See for eg Ellen Gruenbaum, The Female Circumcision Controversy: An Anthropological Perspective (University of Pennsylvania Press 2001); Maria Frederika Malmström , The Politics

121

ID - DRITT

At the international level, the voices advocating for the complete eradication of all forms of FGM, seem to be more resonant than those which push towards tolerance for these practices. Anti-FGM activists strongly argue that FGM violates a number of girl’s and women’s Human Rights (henceforth ‘HR’), including the right to freedom from any form of gender-discrimination, freedom from torture and inhuman and degrading treatment, the right to the highest attainable standard of physical and mental health, the right to life and the rights of the child. This perception of FGM has been endorsed by the UN12, the European Parliament13, international organisations, and parliaments worldwide, including the Maltese Parliament. However, besides HR principles, FGM is also condemned on the basis of two other main arguments. The first is an ethical argument, relating to the non-consensual nature in which the procedure usually takes place and, the short-term and long-term health complications which a number of medical and health attendants associate with the intervention.14 The second argument focuses on feminist viewpoints which perceive FGM as a practice which enforces patriarchy through the suppression of female sexuality.15 One can say that the actual prevalence of FGM in Malta started to be felt with the start of the ‘migration crisis’, which brought many women from FGM-practicing countries and societies to seek inter-

of Female Circumcision in Egypt: Gender, sexuality and the Construction of Identity (London: I.B. Tauris 2015); Janice Boddy, ‘The normal and the aberrant in female genital cutting: Shifting paradigms’ (2016) 6(2) Journal of Ethnographic Theory 41-69 <https://www.haujournal.org/index.php/hau/article/view/hau6.2.008> accessed 14 September 2017.

12

See for eg Manfred Nowak, ‘Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development’ (UN Human Rights Council, 15 January 2008) 16-19 <http://www.refworld.org/docid/47c2c5452.html> accessed 18 July 2017.

13

See for eg European Parliament, ‘European Parliament resolution of 11 March 2014 on the eradication of torture in the world 2013/2169(INI)) <http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2014-0206> accessed 14 September 2017.

14

See for eg Obiajulu Nnamuchi, ‘Circumcision or Mutilation-Voluntary or Forced Excision-Extricating the Ethical and Legal Issues in Female Genital Ritual’ (2012) 25 (85) Journal of Law and Health 107-108 <http://engagedscholarship.csuohio.edu/jlh/vol25/iss1/5> accessed 18 July 2017.

15

See for eg Katherine Brown and others , ‘The Applicability of Behaviour Change in Intervention Programmes Targeted at Ending Female Genital Mutilation in the EU: Integrating Social Cognitive and Community Level Approaches’ (2013) 2013 Obstetrics and Gynaecology International <http://www.hindawi.com/journals/ogi/2013/324362/cta/> accessed 18 July 2017.

122

VOLUME XXVIIII

national protection in Malta. However, despite the large influxes of women from these countries and societies, as well as the social and cultural tensions, particularly between the migrant women with FGM and the Maltese health attendants, no formal or informal reports are believed to have been made about the occurrence of FGM in Malta.16 It is interesting to note that the notion of ‘mutilation’ is not new to Maltese law. Articles 54D(b)(x) and 54D(c)(i) of the Criminal Code punish acts resulting in ‘physical mutilations’; however these are only applicable to offences committed in times of war or in armed conflicts and thus, can be said to be inapplicable to the so-called ‘traditional’ cases of FGM. In fact, discussions about the introduction of a new law, aimed at prohibiting these ‘traditional’ practices, started to appear on local newspapers around July 2013,17 back in 2006, her Excellency, President Marie-Louise Coleiro Preca who, at the time, was a Labour MP, had called on the, then PN government to specifically enlist FGM as a crime in the Maltese Criminal Code, with the aim of protecting migrant females living in Malta from being subjected to the procedure against their will. However, this suggestion was not met at the time because the majority in Parliament seemed of the opinion that the practices were already prosecutable under the provisions dealing with ‘Crimes against the person’.18 FGM was, however, specifically identified as ‘one of the realities arising around sexual health’ in the National Sexual Health Policy of 2010.19

16

See Jeanise Bonnici , ‘Regulating Female Genital ‘mutilation’ in Malta’ (LL.D. thesis, University of Malta 2015) 17 17 Davinia Hamilton, ‘Female genital mutilation: shifting from tradition to education’ Malta Today (Malta, 9 July 2013) <http://www.maltatoday.com.mt/news/national/28217/female-genital-mutilation-shifting-from-tradition-to-education-20130708#.WWdHg4VOL49> accessed 18 July 2017.

18

Criminal Code (n 1), Title VIII. See also ‘No cases of female genital mutilation’ Times of Malta (Mrieħel, 9 January 2007) <http://www.timesofmalta.com/articles/view/20070109/local/ no-cases-of-female-genital-mutilation.30180> accessed 18 July 2017.

19

Ministry for Health, the Elderly and Community Care, ‘The National Sexual Health Policy for the Maltese Islands’ (2010) <http://sexualhealth.gov.mt/sites/default/files/sexualhealthpolicy_english%5B1%5D.pdf> accessed 18 July 2017.

123

ID - DRITT

3. An Analysis of the Maltese Criminal Provision on FGM 3.1 Requisite Criteria & Applicable Punishment As stated in the introduction to this article, the enabling Act of the provision on FGM in the Maltese Criminal Code is Act I of 201420 which was passed in Parliament by unanimous vote in January 2014.

Since this is a relatively new offence in the Maltese Criminal Code,21 it is important for the benefit of the reader to take a closer look at the constituent parts of this provision, including the requisite criteria for criminal conviction and the applicable punishment.

Firstly, it must be noted that the way in which the legislation has been classified in the Criminal Code (that is, title VIII, sub-title IX)22 brings us closer to understanding the underlying perception of the Maltese legislators on FGM; that is, a crime ‘against the person’ and act of ‘private violence’. The definition of FGM under the Maltese Criminal Code may be inferred from Article 251E sub-article (1) and sub-article (5) of the same Article.23 The former sub-article reads as follows: Whosoever, for non-medical reasons, performs an operation or carries out any intervention on a woman’s genitalia that damages the genitalia or inflicts upon them permanent changes, shall be guilty of enforced female genital mutilation…

In sub-article (5), the law then defines the terms ‘operation’ and ‘intervention’ as procedures which ‘include24 the excision, infibulation or mutilation of the genitalia’.25 From a literal reading of the 20

Criminal Code (n 1) Act I of 2004.

21

The first known legal study to have analysed the Maltese Criminal provision on FGM in detail is Bonnici (n 16).

22

As stated in the introduction, title VIII of the Criminal Code deals with ‘Crimes against the Person’ and sub-title IX regulates ‘Threats, Private Violence and Harassment’.

23

Criminal Code (n 1) Article 251E(1) and (5).

24

Emphasis added.

25

Criminal Code (n 1) Article 251E (5).

124

VOLUME XXVIIII

law, four requisite criteria can be extracted for the offence of FGM to subsist. Firstly, the offence has to be perpetrated against a ‘woman’ or a ‘female’ — as the title of the crime reads. Secondly, the actus reus of the offence has to consist of an ‘operation’ or any other ‘intervention on a woman’s genitalia’ — that is, on the female’s external sexual organs. Here, the term ‘operation’ could be interpreted to mean a physical intervention performed in a clinical environment.

‘Intervention’, on the other hand, suggests a procedure which could be performed anywhere. This already indicates that FGM is punishable as a crime both if performed by a health professional or a layperson, such as a traditional circumciser. Thirdly, the resulting effect of the act has to be such ‘that damages the genitalia or26 inflicts upon them permanent changes’. Although not so clear-cut, the legislator seems to be making a distinction between procedures which cause temporary physical damages or functional debilities, without necessarily resulting in permanent anatomical changes, and other interventions which, albeit not necessarily inflicting long-term injuries or defects, produce permanent aesthetic modifications to the genitalia.

The last criterion concerns the motive behind the commission of the offence, namely, that for the act to lead to criminal liability, it must be performed ‘for non-medical reasons’. Certainly, the inclusion of this requisite is a sine qua non since some forms of genital mutilations are considered medically necessary in order to treat physical deformities, diseases, and other complications, such as genital cancers.

Upon satisfaction of the above-mentioned criteria, the offence is punishable with a term of three to nine years imprisonment.27 This punishment increases where death ensues ‘as a result of the nature or the natural consequences of the harm’28 or ‘as a result of a supervening accidental cause and not solely as a result of the nature or the natural consequences of the operation or intervention’.29 In the former scenario, the law further distinguishes between cases where death ensues within forty days from the operation or intervention 26

Emphasis added.

27

Criminal Code (n 1) Article 251E(1).

28

ibid Article 251E(2)(a).

29

Criminal Code (n 1) Article 251E(2)(b).

125

ID - DRITT

which is —punishable by six to twenty years imprisonment — and other cases where death follows after forty days but within a year the latter being punishable with four to twelve years imprisonment.30 As for cases of death resulting from a supervening accidental cause, a term of three to nine years imprisonment applies.31 Apart from the above-mentioned aggravating circumstances which are specific to the offence FGM,32 Act I of 2014 also introduced an exhaustive list of circumstances which could lead to an increase in punishment by one or two degrees.33 These are set out in Article 251H of the Criminal Code34 and besides FGM, they are also applicable to the other two offences introduced by the same Act, namely, ‘Enforced sterilisation’ and ‘Forced marriage’.35 This list includes inter alia situations where ‘the offence resulted in severe physical or psychological harm for the victim’36, if the offence was committed by a member of the family37, by two or more people acting together38, if it was committed against a minor and/or with the use of a weapon.39 The increase in punishment in the last four aggravating circumstances is somewhat debatable in FGM cases. This is because, if not all, the majority of FGM interventions, by their very nature, require the use of a weapon — razor-blades being the typical instruments used by traditional circumcisers and surgical instruments are the tools used in hospitals and clinics. Furthermore, as already explained, in many communities FGM is carried out on minors and, when performed without the use of anaesthesia, (typically when done by traditional circumcisers), the girl undergoing the intervention is normally re30

Criminal Code (n 1) Article 251E (2) (a)(i), (ii).

31

Criminal Code (n 1) Article 251E (2) (b).

32

See Criminal Code (n 1) Article 220.

33

Criminal Code (n 1) Article 251H.

34

Criminal Code (n 1) Article 251H.

35

These are found in Criminal Code (n 1) Articles 251F and 251G.

36

Criminal Code (n 1) Article 251H(h).

37

Criminal Code (n 1) Article 251H(a).

38

Criminal Code (n 1) Article 251H(e).

39

Criminal Code (n 1) Article 251H(d) and (g).

126

VOLUME XXVIIII

strained by another person (besides the circumciser), who is usually a family member. Thus, if any case on FGM were to be prosecuted in the future, it would be interesting to note the quantum of punishment and on which basis the judge will award this. The law further punishes complicity in the form of aiding, abetting, counselling or procurement, with the applicable punishment being the same as that for the principal offender.40 An interesting feature of this law, which is not commonly found in other criminal provisions, is the fact that it makes the reporting of FGM mandatory and anyone who ‘wilfully fail[s]to seek to avert [FGM], by formal complaint or in another manner’, will be liable to a fine (multa) of not less than €1,000 and not exceeding €5,000.41 One can also be subject to ‘imprisonment for a term of six months to two years or, to both such fine and imprisonment’.42 However, the duty to report is not only imposed upon any layperson living in Malta. Exceptionally, there is also responsibility imposed on professionals ‘regardless of any duty of confidentiality’.43 Another exceptional aspect is the fact that the ‘consent of the person undergoing the operation or intervention shall not justify exemption from punishment.’44 This, reflects the underlying preconception that the consent (if any is given) of the female undergoing FGM is forced and, or vitiated in all cases.

3.2 Sources of the Law It is noteworthy that, with one exception, international, and regional HR conventions, to which Malta is a party,45 do not make any 40

Criminal Code (n 1) Article 251E (6). This has been based on the general rule of complicity under Article 43 of the Criminal Code which stipulates that the accomplice is liable to the same punishment as the principal offender, unless the law provides otherwise. See Criminal Code (n 1) Article 43.

41

Criminal Code (n 1) Article 251E(4).

42

Criminal Code (n 1) Article 251E(4).

43

Criminal Code (n 1) Article 251E (4).

44

Criminal Code (n 1) Article 251E (3).

45

These include the Universal Declaration of Human Rights, the Convention on the Elimina-

127

ID - DRITT

direct reference to FGM. However, legal scholars have justified the applicability of these conventions to FGM by interpreting the practices within the scope of the broadly termed rights enshrined in these conventions (outlined in the first section).46 The only HR treaty which expressly provides for the criminalisation of FGM is the (Istanbul Convention),47 to which Malta is a party and which recognises FGM as a form of violence, ‘a serious violation of the human rights of women and girls and a major obstacle to the achievement of equality between women and men.’48 Additionally, this Convention expressly perceives criminalisation as a necessary measure for addressing FGM. Similarly, at the EU level, the Victims’ Rights Directive,49 which establishes minimum standards on the rights, support, and protection of victims of crimes, explicitly recognises FGM as a form of gender-based violence.

During the Maltese parliamentary debates on FGM,50 the proponents of the law noted that the definition of FGM under Maltese law was, more or less, based on the definition and categorisation of the WHO, outlined above. However, a detailed study of the Maltese legal provision showed that the law very much echoes the specific provision on FGM within the Istanbul Convention- which was also inspired by WHO’s definition-51 and the provisions on bodily harm in the Maltese Criminal Code, using new or even identical words.52 tion of all Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union.

46

See Bonnici (n 16) 25-29 for a more detailed discussion on the interpretation and application of these HR to FGM. 47

Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), Article 38.

48

ibid.

49

Council Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, preamble, para 6.

50

Parliamentary Debates No 101 (n 4) 30.

51

See for eg Amnesty International et al, ‘The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence: A tool to end female genital mutilation’ (2014) 7 <http://www.endfgm.eu/editor/files/2016/01/IstanbulConventionFGMguide_FINAL_ENGLISH.pdf > accessed 19 February 2018.

52

Article 38 of the Istanbul Convention (n 47) states: ‘Parties shall take the necessary legisla-

128

VOLUME XXVIIII

By taking a look at the definition of FGM in Article 38, sub-article (a) of the Istanbul Convention53, one may notice a close resemblance with the definition of FGM under the Maltese Criminal provision.

Both definitions, for instance, omit the intentional element which is present in WHO’s definition of FGM and, only make reference to types II and III of FGM, namely, ‘excision and infibulation’. Thereby, this instance omits type I of FGM i.e. that of ‘clitoridectomy’.54 Furthermore, examples relating to complicity under the Maltese law are also synonymous to those laid down in the Convention and the list of aggravating circumstances is almost identical to Article 46 of the same Convention.55 Thus, it seems that with respect to the definition of the offence, complicity, and aggravating circumstances, the Maltese law on FGM is fully compliant with the Istanbul Convention.

Nevertheless, it must be pointed out that although the Convention, expressis verbis, imposes a duty on state parties to criminalise FGM, it leaves them at liberty to adopt whichever mode of criminalisation they deem appropriate; that is, to enact sui generis legislation or to frame it under existing criminal laws, if appropriate.56 In fact, the object of Act I was not to incorporate the provision of the Convention into the Criminal Code; rather, the expressed objective was to make provision for, inter alia, a sui generis offence of FGM. The incorporation of the Istanbul provision happened later, namely, in June 2014 through Act XIX of 2014.

Besides the WHO definition and taxonomy as well as the Istanbul Convention, the Criminal provisions on bodily harm57 were the third tive or other measures to ensure that the following intentional conducts are criminalised: (a) excising, infibulating or performing any other mutilation to the whole or any part of a woman’s labia majora, labia minora or clitoris; (b) coercing or procuring a woman to undergo any of the acts listed in point a; (c) inciting, coercing or procuring a girl to undergo any of the acts listed in point a’.

53

Ibid Article 38(a).

54

A possible reason for this omission could have been to group types I and II under the word ‘excision’, given that both procedures involve cutting, albeit, of different genital organs.

55

Istanbul Convention (n 47) Article 46.

56

The European Parliament resolution of 24 March 2009 on combating female genital mutilation in the EU (2008/2071(INI)) para 20, specifically recognises statues on the grievous bodily harm as an alternative to specific criminal laws prohibiting FGM. 57

Criminal Code (n 1) Title VIII, sub-titles III and IV

129

ID - DRITT

source upon which the legislation was based, insofar as punishment is concerned. For instance, the maximum amount of punishment in cases where the victim remains alive, namely, that of nine years imprisonment, is synonymous to that in Article 218(1) of the Criminal Code,58 which punishes acts resulting in grievous bodily harm (hereinafter referred to as ‘GBH’). Furthermore, the terminology and sanctions in Article 251E (2)59, concerning cases where death ensues following FGM, are identical to those in Article 220(1) and (2)60 which regulate GBH from which death ensues.

3.3 Comparative Overview In an interview with Hon. Fearne,61 it was explained that, during the drafting process of Act I, a number of foreign laws were consulted and the basic principles under the Maltese law are similar to those found in the UK Female Genital Mutilation Act.62 A comparative analysis of the Maltese provisions on FGM, as well as the applicable Criminal laws in the UK, Italy, France, the US, (specifically, US federal law) and Canada, shed light on the type of models (besides the existing legislation on bodily harm) which were available to the Maltese legislators for prosecuting FGM offences, before the drafting of Act I.63 It was noted that, except for the French applicable law on FGM, the select laws share two common features with the Maltese counterpart — namely, the fact that all laws seem to be based on WHO’s definition and classification of FGM and, they all provide for the prin58

Criminal Code (n 1) Article 218(1).

59

Criminal Code (n 1) Article 251 E(2).

60

Criminal Code Article 220(1) and (2)

61

Bonnici (n 16) 76.

62

Female Genital Mutilation Act 2003, Chapter 31.

63

This comparative overview is given in more detail in Bonnici (n 16) Chapter 2. These jurisdictions were chosen on the basis of the following criteria: (i) they are all states which have taken substantial steps to address FGM by enforcing criminal law; (ii) they are jurisdictions which receive large numbers of females from FGM-practising countries and (iii) for the purpose of taking an international approach, considering that as a result of migration, FGM has become of global concern.

130

VOLUME XXVIIII

ciple of extraterritoriality which makes it possible for the receiving country to prosecute those FGM offences which have only been partially committed within its jurisdiction or, if committed abroad by or upon nationals or residents of the country.64 However, a number of differences were identified, some of which are outlined in the following paragraphs.

The first major difference noted is the fact that from the select jurisdictions, France is the only jurisdiction which does not have a specific law on FGM but which applies its general criminal provisions on acts of torture and barbarity65 and acts of violence.66 Interestingly, these articles provide for an aggravating circumstance when the act results in ‘mutilation or permanent disability’ and this has contributed to categorising harmful genital mutilations, such as FGM, under these articles. Similarly, under Canadian law, as of 1997, FGM is part of a more general offence, namely, that on aggravated assault which was purposefully broadened to include FGM in its provision.67 The Italian law on FGM, which dates back to 2006 is also codified in its penal code.68 However, back in 1999, before the promulgation of this provision, the Court of Milan had already prosecuted and convicted an Egyptian man69 under its general Criminal laws on personal harm resulting in physical or mental illness.70 Similarly, the US Federal Code has a sui generis provision on FGM71 which was promulgated in 1996, following the landmark judgement of Fauzija Kasinga, in which the Board of Immigration Appeals in 1996 recognised FGM as a form of gender-based persecution and set a precedent for the asylum 64

This is provided for in Article 251I of the Criminal Code which has also been added by Act I of 2014.

65

Code Pénal Française, Book 2, Title 2, Ch 2, s 1, Articles 222-225

66

Ibid Article 222-9.

67

Criminal Code 1985 (RSC), Part VIII, Article 268.

68

Codice Penale, Book 2, Title 12, Articles 583-bis and 583-ter

69

See ‘Rassegna giurisprudenziale delle MGF in Europa’ (L’altro diritto) <http://www.altrodiritto.unifi.it/ricerche/migranti/ghizzi/cap2.htm> accessed 18 July 2017.

70

Codice Penale (n 68) Articles 32 and 582.

71

US Code, Title 18, part 1, ch 7, Article 116.

131

ID - DRITT

cases which followed.72 Today, around twenty-three out of fifty US states have anti-FGM laws as part of their statutes.73Unlike the other jurisdictions, the UK regulates FGM in a separate statute, namely, the Female Genital Mutilation Act74 and interestingly, it was the second state in Europe, after Sweden, to enact a law against FGM in 1985.75 The second difference relates to the definition of the offence of FGM, particularly the interpretation of ‘medical reasons’. Unlike the Maltese and Italian provisions, the US, Canadian, and UK counterparts stipulate those instances in which FGM can be deemed medically necessary. The US and UK laws justify FGM if this is deemed necessary in any stages during or after labour, or in other cases if necessary for the health of the female and only if performed by a licensed medical practitioner, midwife or trainee. In addition to these, Canadian law provides for another two exceptions, namely ‘for the purpose of... having normal reproductive functions or normal sexual appearance or function’.76 Thirdly, as regards consent, Maltese law follows the UK counterpart which stipulates that ‘it is immaterial whether she (i.e. the female undergoing the procedure) or any other person believes that the operation is required as a matter of custom or ritual.’77 The US and Canadian statutes also have a similar provision but interestingly, under these laws, consent to FGM is only considered invalid when given by females under eighteen years of age.78 In other words, it is 72

In re Fauziya Kasinga, 3278 (United States Board of Immigration Appeals, 13 June 1996).

73

Equality Now, ‘Female Genital Mutilation (FGM) in the United States’ (2015) <https://rinj.org/interactive/wp-content/uploads/2016/06/FGM_in_US.pdf> accessed 19 February 2018.

74

Female Genital Mutilation Act (n 62).

75

See for eg Els Leye and Alexia Sabbe ,‘Overview of Legislation in the European Union to Address Female Genital Mutilation: Challenges and Recommendations for the Implementation of Laws’ (2009) United Nations, 3 <http://www.un.org/womenwatch/daw/egm/vaw_legislation_2009/Expert%20Paper%20EGMGPL HP%20_Els%20Leye_.pdf> accessed 18 July 2017.

76

Canadian Criminal Code (n 67) Article 268(3)(a)

77

Female Genital Mutilation Act (n 62) Article 1(5)

78

US Code (n 71) Article 116(a), Canadian Criminal Code (n 67) Article 268(3)(b)

132

VOLUME XXVIIII

legal for women who have reached the age of majority to undergo the procedure, provided that their consent has been freely given; otherwise, if consent is vitiated and/or forced, the intervention would be deemed as a Criminal offence and prosecutable under other Criminal law provisions.

Furthermore, there is a significant variation in the type and amount of punishment which these laws set. France sets the highest punishment, namely, imprisonment for up to fifteen years, if the act is classified as an act of torture or, up to ten years imprisonment and a fine of up to €150,000, if the act is classified as an act of violence.79 The penalties under the UK and Canadian laws80 go up to fourteen years of imprisonment, whereas, in Italy and the US the same laws seem to be more generous, with a maximum of twelve and five years imprisonment respectively.81 However, unlike the Maltese provision, these laws do not provide for instances accumulating to death; these are, presumably, still prosecutable under the laws on voluntary or involuntary homicide.

4. Reflections on Potential Legal & Social Implications within the Maltese Jurisdiction As explained hereunder, the law on FGM was not met without criticism. Moreover, after a close examination of the text of the law and a comparison with foreign laws on FGM, some points of concern emerged regarding certain apparent inconsistencies within the text of the law itself, as well as its relation with other Maltese laws and other features which question certain preconceptions with which the legislation seems to have been drafted. The following sub-sections highlight these points and, discuss the potential legal and social implications which these deficiencies could have within the Maltese jurisdiction.

79

Code Pénal Française (n 65)

80

Female Genital Mutilation Act (n 62) Article 5, Canadian Criminal Code (n 67) Article 268(2)

81

Codice Penale (n 68), US Code (n 71) Article 116(a)

133

ID - DRITT

4.1 FGM and other Crimes against the Person The first point of criticism which was levelled against the law, concerns its interplay with the provisions on bodily harm in the Criminal Code. Before the law came to pass, some local commentators argued that a specific law on FGM would be ‘superfluous’ as this was already covered by existing Criminal laws and arguably, a new law would lead to a piecemeal approach towards regulating Crimes against the person.82 As explained above, the provisions on punishment under the FGM law were clearly modelled on the provisions on GBH and it has also been shown that the sub-articles concerning GBH from which death ensues have been re-written in the FGM law. Interestingly, in the original legal draft, a distinction was made between genital interventions resulting in GBH and others which did not. Evidently, such distinctions were based on that made in Article 215 of the Criminal Code which classifies bodily harm into ‘grievous or slight.’83 However, when the law was reviewed in Parliament, it was argued that such a distinction was futile and it was eventually removed on the basis that FGM ‘causes grievous harm on a woman in every case’.84 Therefore, given that the punishment for the offence of FGM was based on the provisions on GBH and, since it has been expressly stated in Parliament that FGM constitutes GBH, it is interesting to examine how and the extent to which the definition of FGM in Article 251E85 fits within the scope of the definition of GBH in Article 216(1).

82

Daphne Caruana Galizia, ‘Forced genital mutilation is illegal already, Mr Fearne’ (Running Commentary: Daphne Caruana Galizia’s Notebook, 30 July 2013) <https://daphnecaruanagalizia.com/2013/07/forced-genital-mutilation-is-illegal-already-mr-fearne/> accessed 18 July 2017.

83

The original version of the draft legislation can be downloaded from <http://www.parlament. mt/billdetails?bid=451&l=1&legcat=13> accessed 18 July 2017 The original version of the bill had an additional clause which provided that ‘If the operation or intervention has resulted in’ GBH, the act would be punishable with imprisonment from 5 to 9 years.

84

Parliamentary Debates No. 106 (n 4) 251.

85

Criminal Code (n 1) Article 251E.

134

VOLUME XXVIIII

The most important factor to keep in mind, for the purpose of such comparative exercise, is the fact that FGM is an intervention on a female’s ‘genitalia’. Albeit not expressly mentioned, the provisions on GBH do not exclude such body parts; these could be interpreted under the rubric ‘organ’ or ‘physical structure of the body’ in sub-paragraphs (ii) and (iii) of sub-article 216(1)(a).86 The latter two sub-paragraphs punish GBH resulting in ‘any permanent debility of the health or permanent functional debility of any organ of the body’ or in ‘any permanent defect in any part of the physical structure of the body’ which, arguably, the most severe forms of FGM (particularly, Types I to III) could result in.

Additionally, the most invasive procedures could lead to loss of life and permanent mental infirmity due to consequential psychological traumas; these are covered under sub-paragraphs (i) and (iv) of the sub-article 216(1)(a).87 Furthermore, as noted above, since most FGM interventions are performed with the use of a cutting instrument, both when performed in a traditional or clinical environment, the offence could potentially fall under Article 217which allows for an increase in punishment in cases of GBH committed with inter alia ‘a cutting or pointed instrument’.88 Therefore, one can conclude that there seems to be nothing in the definition or categorisation of FGM that suggests that it falls outside the scope of the provisions on bodily harm. This reinforces the argument that pre-2014, FGM was already a Criminal offence under the existing Criminal framework.89 Nevertheless, since lex specialis derogate generalis, any cases of FGM which could potentially arise in the future should be prosecuted under the specific law, namely, Article 251E.90 It is also interesting to consider whether FGM could have been considered under any other crime against the person besides, the 86

Ibid Article 216(1)(a)(ii) and (iii).

87

Criminal Code (n 1) Article 216(1)(a)(i) and (iv). See for eg WHO (n 6).

88

Criminal Code (n 1) Article 217.

89

For a detailed discussion on whether FGM could potentially fall under willful or voluntary bodily harm see Bonnici (n 16) 69-71.

90

Criminal Code (n 1) Article 251E.

135

ID - DRITT

laws on bodily harm. As noted above, France, for instance, applies its Criminal laws on torture in such cases.91 However, when examining the Maltese Criminal law provision on torture, one may conclude that FGM fails to meet an important criterion of the offence, namely the act must be committed for those purposes specified under the law which include acts of discrimination.92 Although the international community classifies FGM as a form of gender-based discrimination, arguably, the real intention of the circumcisers and/or the parents who submit their child to the intervention, is not to discriminate against the child. Rather, this is usually carried out in the ‘best interest of the child’ which, in FGM-practising societies, assumes a different meaning to that understood in the ‘Western World’ as this is normally shaped by cultural and moral norms, as well as the economic situation of the practising community.93 As regards laws relating to measures of protection, the European Institute for Gender Equality94 observes that the provisions under the Commissioner for Children Act95, the Domestic Violence Act96 and the Children and Young Persons (Care Orders) Regulations97promote 91

International and regional institutions, such as the European Parliament, the UN and the European Court of Human Rights, have also specifically recognised FGM as a tortuous act in the private sphere. See European Parliament resolution of 11 March 2014 on the eradication of torture in the world, 2013/2169(INI) para 88; UN Human Rights Council (UNHRC), Manfred Nowak, ‘Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development’ (2008) 16-19 <http://www.refworld.org/ docid/47c2c5452.html> accessed 18 July 2017; Pamela Izevbekhai and v Ireland App no 43408/08 (ECtHR, 17 May 2011).

92

Torture is punished under Article 139A of the Criminal Code and the offence rests on the following four basic criteria: (i) the pain suffered has to be of a high degree; (ii) it must have been committed by a public officer, servant or any other person acting in an official capacity; (iii) committed intentionally and (iv) for those purposes specified under the law; namely, to obtain information or a confession, to punish, intimidate or coerce or to discriminate.

93

For a more detailed discussion on the applicability of the Maltese provision on torture to FGM, see Bonnici (n 16) 63-67.

94

European Institute for Gender Equality (EIGE), ‘Study to map the current situation and trends on FGM- Country reports’ (2013) 296-303 <http://eige.europa.eu/content/document/ study-to-map-the-currentsituation-and-trends-on-fgm-country-reports> accessed 18 July 2017.

95

Chapter 462 of the Laws of Malta

96

Chapter 481 of the Laws of Malta

97

Subsidiary Legislation 285.01, Chapter 285 of the Laws of Malta

136

VOLUME XXVIIII

special care and legal protection which can be applied for the protection of victims or potential victims of FGM, minors in particular.

4.2 The use of sui generis legislation to address migrant customary practices Having established that pre-2014 FGM could have been considered illegal under the provisions of bodily harm, it is now worth considering the arguments which have arisen concerning the potential social implications of the new law. Before the law actually came to pass, some NGO’s who work closely with asylum seekers had advocated against the enactment of a specific criminal law, arguing for a more sensitive approach to address the matter and for the inclusion of migrant women affected with FGM in debates concerning regulation, thereby, encouraging the voluntary abandonment of these traditions by raising awareness on their harmful implications amongst migrant communities in Malta.98 Some scholars on FGM argue that specific laws on FGM may appear plausible. This is because they serve to strengthen the position of those advocating for the protection of females at risk and as a deterrent and incentive for change in individual behaviour by making it clear that the act constitutes a Criminal offence. Nevertheless, they emphasise that the untimely introduction of such laws may backfire if not preceded or supported by other regulatory strategies aimed at changing individual behaviour and social behaviour and social norms.99 Other authors have commented that enacting a specific law in a country where the practising communities are in the minority, could ultimately have the effect of overly singling out the practices.

Additionally, the excessive publicity of any resulting prosecutions could elicit revulsion from the mainstream population, whilst gen98

See for eg Patrick Cooke ‘Female genital mutilation ‘not officially addressed’ Times of Malta (Mrieħel, 18 March 2013) <http://www.timesofmalta.com/articles/view/20130318/local/Female-genital-mutilation-not-officially-addressed-.461966> accessed 18 July 2017.

99

See for eg Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd 2000) 61-63.

137

ID - DRITT

erating a perception of imposition of moral superiority by the dominant culture which could eventually enhance the marginalisation of these migrant groups.100 UNICEF has warned against the effects of criminalisation as regulatory strategy for addressing such customary practices. It contends that the enforcement of Criminal laws against FGM could generate feelings of stigmatisation amongst practising communities, as well as resentment towards the legal system, driving the practise ‘underground’ and/or trigger cross-border migration; hence, making the detection of these offences more difficult.101 It must be highlighted that since the passing of the new law, there have been no Criminal judgements on FGM in Malta. Ultimately, the French experience (where FGM is prosecuted under general Criminal laws) teaches us that specific laws are not necessary to ensure a more successful implementation of the law. Indeed, France has the highest record of Criminal judgements on FGM to date, with more than a hundred convictions.102 Nevertheless, the conviction of parents, who might have subjected their children to FGM, raises concerns regarding the best interests of the child, particularly when the latter is separated from her parents so that the parents may serve their prison sentence. The approach taken

by France is a good example in this regard, because in the majority of cases, those parents who were convicted as accomplices to the crime were awarded suspended sentences. 103 UNICEF is also against punishing the parents for the purpose of avoiding undue hardship to the minor. It argues that, in such cases, punishing the parents is futile because, once the procedure is done the parents are no longer a threat 100

See for eg Audrey Macklin, ‘The Double-Edged Sword: Using the Criminal Law Against Female Genital Mutilation in Canada’, in Mustafa Abusharaf R (ed), Female Circumcision (University of Pennsylvania 2006) 210-212.

101

See for eg UNICEF, ‘Legislative Reform to Support the Abandonment of Female Genital Mutilation/Cutting’ (2010) 27 <https://www.unicef.org/policyanalysis/files/UNICEF_-_LRI_Legislative_Reform_to_support_the_Abandonment_of_FGMC_August_2010.pdf > accessed 18 July 2017.

102

EIGE (n 91) 90. See Bonnici (n 16) 50-56 for a discussion on the disadvantages of criminalisation and the viability of other regulatory strategies to address FGM. 103

See for eg Rahman (n 96) 152-153.

138

VOLUME XXVIIII

to their daughter.104

4.3 The Criminal Acts Covered by the Law Another point of criticism concerns the definition of the actus reus of the offence of FGM. As mentioned above the law is modelled on WHO’s definition and taxonomy, which has been criticised by various scholars for lumping all genital practices under the blanket term, ‘mutilation’. Thereby, this fails to distinguish between those practices which have mutilatory effect (i.e. resulting in permanent changes) and others which do not.105 However, at the same time, the text of the law suggests an underlying distinction between temporary and permanent injuries, which therefore, renders the title of the offence, namely ‘Female Genital Mutilation’, somewhat inadequate. On the other hand, if the intention of the legislator was to target solely mutilatory procedures, other interventions would necessarily fall under the provisions of grievous or slight bodily harm, thereby leading to a fragmented approach.

Furthermore, the lack of explanation provided for ‘medical reasons’ has given rise to a number of controversies concerning the legality, or otherwise, of cosmetic genital surgeries, due to the common conception that these surgeries have no medical justifications.106 At least, from an ethical standpoint, these surgeries are usually justified due to the fact they are usually undergone by women who are able to give their free and informed consent. Some health practitioners and medical anthropologists regard these surgeries as ‘medically necessary’ on the basis of psychological reasons. In fact, the proponents of the Maltese law seem to justify these surgeries on the same basis.107 104

See UNICEF (n 98) 29.

105

See for eg Richard A Shweder, ‘When Cultures Collide: Which Rights? Whose Tradition of Values? A Critique of the Global Anti-FGM Campaign’ in Christopher L Eisgruber and AndrásSajó (eds) Global Justice and the Bulwarks of Localism (Koninklijke Brill NV2005) 187.

106

Patrick Cooke, ‘Mutilation Bill could make labiaplasty surgery illegal’ Times of Malta (Mrieħel, 16 October 2013 <http://www.timesofmalta.com/articles/view/20131016/local/Mutilation-Bill-could-makelabiaplasty-surgery-illegal.490530> accessed 18 July 2017. 107

See Bonnici (n 16) 86-88.

139

ID - DRITT

Nevertheless, medical anthropologists observe that these surgeries are not always free from health complications.108 More problematic, however, is the fact that certain genital interventions which fall under WHO’s categories and which are vilified and outlawed in the West, are readily available upon request.109 This begs the question as to whether requests for such surgeries by women from FGM-practising countries would be refused in Malta on the basis that they constitute FGM. Interestingly, recently, the Crown Prosecution Service in the UK was investigating the case of a psychiatrist who advised that a clitoris removal operation, which had been requested by an adult woman, should go ahead. Although this case sparked a lot of political controversy, the psychiatrist was eventually spared criminal charges on the basis that such surgery could be deemed ‘medically necessary’ for psychological reasons.110 The ambiguity as to which procedures could be regarded as ‘medically necessary’ or otherwise, has nevertheless raised questions concerning other forms of forced genital mutilations, which could be performed on Maltese nationals, particularly on children. In this regard, reference should be made to Gender Identity Act which, essentially, concerns intersex and transgender individuals and makes it ‘unlawful for medical practitioners, or other professionals, to conduct sex assignment treatment and, or surgical intervention on the sex characteristics of a minor’ if this can be deferred until the person can provide informed consent and unless there are any exceptional circumstances.111 This Act does not provide for any sanctions in case 108

For more detail see Bonnici (n 16) 91; Sara Johnsdotter and Birgitta Essèn ‘Genitals and ethnicity: the politics of genital modifications’ (2010) Reproductive Health Matters 18(35), 33 <http://www.tandfonline.com/doi/pdf/10.1016/S0968-8080%2810%2935495-4>.

109

These include vaginal tightening and clitoral hood reductions. It is also interesting to note that in the 19th century, certain types of FGM were practised by a number of European and American medical professionals as a ’cure’ to certain conditions, such as insomnia and psychological disorders. See for eg Boddy (n 11) 43-44.

110

See Martin Bentham, ‘Doctor cleared over FGM says woman should be free to have intimate surgery’ Evening Standard (London, 28 February 2017) <http://www.standard.co.uk/ news/health/doctor-cleared-over-fgm-says-women-should-be-free-to-have-intimate-surgery-a3477941.html#commentsDiv> accessed 18 July 2017.

111

Gender Identity, Gender Expression and Sex Characteristics Act, Chapter 540 of the Laws of Malta, Article 14. It is noteworthy that prior to the entry into force of this Act, the parents of a

140

VOLUME XXVIIII

of violations; hence, it invites us to consider whether a judge would apply the punishment applicable to FGM in any future cases. Furthermore, the failure to describe in detail the type of interventions which constitute the offence of FGM, makes it unclear whether or not, the offence has to necessarily be committed against the biological female sex. The UK and Canadian statutes are instructive in this regard since they describe FGM as an intervention on a ‘girl’s labia majora, labia minora and clitoris’; thereby making it clear that, for the offence to subsist, FGM has to be performed on the biological female sex.112 Thus, considering the distinction between ‘sex’ and ‘gender’ which feminist scholars make,113 which distinction has, in the most recent years, found its way in Maltese state laws,114 forced sex re-assignment from the male biological sex to the female’s biological sex could arguably fall under the definition of FGM. Consequently, the broad manner in which FGM is defined under Article 251E115 paves the way for different interpretations, leaving excessive discretion to the Criminal Courts. However, the fact that the relative parliamentary debates focused exclusively on the ’traditional’ practices of FGM suggests that the law was originally intended to be sui generis.

4.4 Considerations on Punishment and Applicability of the provision Health practitioners and organisations, including WHO, have observed that genital interventions vary in type, severity, and consequential implications for the health of females. Nevertheless, all forms of FGM, regardless of their severity, have been classified as minor born with an intersex condition, could decide on behalf of the minor, after consulting with a paediatrician, which sex to assign to the child- see Bonnici (n 16) Appendix B. 112

See n 62 and 67

113

In a nutshell, this is the perception that gender is self-determined and contradicts traditional beliefs that the ‘sex’ or rather, the biological structure of a person, no longer determines one’s own gender.

114

This is evidenced by the introduction of the Gender Identity Act (n 108), the Affirmation of Sexual Orientation, Gender Identity and Gender Expression Act (CAP 567) and the Marriage Act and other Laws (Amendment Act), 2017.

115

Criminal Code (n 1) Article 251E.

141

ID - DRITT

GBH. Consequently, all types of interventions, including those leading to minimal harm, attract the same punishment.116 This goes contrary to the legal principle culpae poenae par esto.117 Italian law is instructive in this regard because it sets a lower punishment for the less severe genital interventions.118 Another issue concerns limitations of time for the prosecution of the offence in cases where death ensues after a year - something which has also been debated in the Maltese Parliament. The law seems to have been drafted under the assumption that, where death ensues after a year, it cannot be considered as a direct result of FGM.119 This is rather debatable, particularly when considering that there could be cases where FGM was conducted with the sole intention of inflicting harm on the girl or woman, rather than for cultural, religious or moral reasons; in such cases, if death ensues as a direct result of FGM after a year, the perpetrator would not be considered criminally liable and thus, no punishment would be applicable. It is worth mentioning at this point that one of the cases in France, which has led to a criminal conviction, involved a French-born woman, with no ties to FGM-practising countries or communities whatsoever, but who had nonetheless cut her daughter’s genitalia.120 Therefore, it seems that setting no limitations would be ideal for the purpose of securing justice in such eventualities.

Additionally, as highlighted above, the reasons behind FGM procedures vary significantly — for instance, the ‘enhancement of aesthetic beauty’ sounds a more tolerant ‘justification’ in comparison to the ‘sexual gratification’, as the latter sounds much more discriminatory towards females Hence, it would be plausible if the law were to allow for mitigating factors which the judge could apply after hearing the 116

These observations have also been made by other authors who carried out comparative studies on foreign FGM statutes- see for eg Nnamuchi (n 14) 118.

117

Translated as, ‘Let the punishment fit the crime.’ - -

118

Codice Penale (n 68) Article 583-bis, para 2.

119

Criminal Code (n 1) Art. 251E (2) (a)

120

For more details about this judgement, see Linda Weil-Curiel, ‘Female Genital Mutilation in France: A Crime Punishable by Law’, in Susan Perry and Celeste Schenck (ed.), Eye to Eye: Women Practising Development Across Cultures (Zed Books Ltd. 2001) 193

142

VOLUME XXVIIII

motive behind the offence, such as where the procedure is performed for aesthetic purposes, where there is genuine belief from the part of the perpetrators or other individuals who procure the procedure, that there are health benefits to the intervention (for example, to ensure physical “cleanliness”, as noted above) and where the procedure is performed as a matter of custom in order to transition from childhood into womanhood.121 Furthermore, there are issues concerning the applicability of the provision in cases of extraterritorial offences committed by a non-permanent resident on another non-permanent resident. As the law stands, these acts fall outside the scope of the law; conceivably, excluding from protection those female migrants, victims or at risk of FGM who, for any reason (be they asylum-seekers or other temporary residents), are residing in Malta without a long-term resident permit.

The approach taken by the UK appears to be more plausible as it has done away with this criterion of permanence and extended protection to non-permanent residents, instead.122

4.5 Issues concerning tolerance of Cultural Diversity In itself, the law raises a number of questions pertaining to tolerance of cultural diversity. Firstly, FGM supporters usually regard the criminalisation thereof as a violation of their right to practise their own culture,123 freedom of conscience, the right to parental authority 121

See section 2 above.

122

See Owen Bowcott, ‘FGM law expanded to cover foreign nationals habitually resident in the UK’ The Guardian, 4 June 2014 < https://www.theguardian.com/society/2014/jun/04/female-genital-mutilation-law-foreign-nationals-fgm> accessed 3 March 2018. Act VIII of 2015 has added sub-article (4) to Article 251I of the Maltese Criminal Code which clarified that ‘the phrase “permanent resident” shall have the same meaning assigned to it by article 5(1)(d)’. This makes reference to Article 7 of the Immigration Act which provides for the issue of permanent and indefinite resident permits by the Maltese immigration authorities. However, NGO’s have argued that the criteria set under this Act, for the purpose of obtaining a resident permit, are rather difficult for most third-country nationals, living in Malta, to meet. See also Bonnici (n 16) 99-100, 109-110.

123

One of the international Conventions which safeguard this right is the International Covenant on Civil and Political Rights (ICESC), Article 4. This right is not enshrined in the Constitution of Malta or the European Convention Act; however, it could arguably fit under the

143

ID - DRITT

and, or the right to private and family life.124 Nevertheless, one must note that these Fundamental Human Rights (hereinafter referred to as ‘FHR’) are not absolute, but are subject to the limitations prescribed by law and to the state’s mandate to protect public safety, health, morals, and the FHR of others.

Secondly, the new law poses a problem mainly with respect to adult females who request or consent to the intervention, particularly since it expressly states that consent does not exempt the circumciser from liability.125 However, although this may sound plausible with respect to children who are unable to give free and informed consent, a number of scholars (including scholars who have been subjected to the procedure themselves), criticise the presumption that FGM is forced in all cases and have emphasised that the failure to distinguish between ‘forced’ and ‘voluntary’ procedures runs counter to a female’s right to make autonomous choices regarding her own bodyparticularly when considering that the two terms are highly subjective.126 In the above-mentioned study on the postpartum treatment of Somali infibulated women whose requests for re-infibulation were turned down, Dr Pisani observed that a number of Somali women migrated to other European countries in order to deliver their babies in a context which they felt is more respectful of their Somali tradition.127 It is also debatable whether the procedure used by Maltese obstetrics for the automatic re-shaping of these women’s genitalia (about which, the women were displeased, albeit performed for the women’s own ’benefit’), could be perceived as a form of forced mutilation; thus, ironically, falling under Article 251E.128 Thirdly, there are arguments concerning the interpretation of articles which protect freedom of assembly and association i.e. Article 42 of the Constitution and Article 11 of the European Convention Act. 124

See for eg Shweder (n 102) 193.

125

This is also the position taken by the European Parliament- EP resolution (n 56) para 28.

126

See for eg Nnamuchi (n 14) 116.

127

Maria Pisani, ‘We are going to fix your vagina, just the way we like it: Some reflections on the construction of [sub-Saharan] African female asylum seekers in Malta and their efforts to speak back’ (2013) 2(1) Postcolonial Directions in Education 82-93.

128

See Bonnici (n 16) 88-94, 107-108.

144

VOLUME XXVIIII

‘medical reasons’, which for FGM-supporters, assumes a whole new meaning, particularly when the non-performance thereof could lead to emotional and/or psychological problems due to ostracism or economic distress due to failure to procure a marriage. Additionally, the criminalisation of these practices could encourage women to have the intervention secretly done by traditional circumcisers which could increase the risk of health complications if performed by an unskilled person and/or in unhygienic conditions. It is arguable whether, in such cases, the State could be held accountable for violating these women’s FHR to health and bodily integrity due to the fact that it failed to provide the services of FGM in hygienic clinical environments.129 The final but, nonetheless, fundamental consideration to make, is the fact that FGM, as practiced in many communities, is a symbolic initiation rite which expresses, affirms and, celebrates a female’s gender identity, thereby, reinforcing the traditional gender binaries of ‘male’ and ‘female’. ‘Gender expression’ and ‘gender identity’ are two notions which are well protected under the Gender Identity Laws130. These laws were originally drafted to safeguard the rights of LGBTIQ individuals to their self-perceived gender identity. However, the definitions under these laws are broad in scope and not exclusive to LGBTIQ individuals.131 If a cultural relativist were to apply these definitions to FGM, they would argue that FGM is a form of manifestation of a female’s gender identity, which refers to her internal and individual experience of gender, corresponding to her sex assigned at birth.132 Hence, FGM would potentially fit within the scope of the Gender Identity Act.133 Nevertheless, given the preconceptions with which the law on FGM was drafted, it is rather unlikely that such an 129

See ibid 94.

130

See n (111).

131

These are defined in Article 2 of Chapter 540 and Chapter 567 of the Laws of Malta. ‘Gender expression refers to each person’s manifestation of their gender identity, and, or the one that is perceived by others’; ‘gender identity refers to each person’s internal and individual experience of identity, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance and, or functions by medical, surgical or other means) and other expressions of gender, including name, dress, speech and mannerisms’.

132

See for eg Shweder (n 10 & 102).

133

Gender Identity Act (n 108).

145

ID - DRITT

interpretation of FGM would be accepted or applied by the Maltese legislature or judiciary; if so, the FGM legal provision would certainly be in violation of the Gender Identity Act, hindering a female’s right to gender identity and expression, bodily integrity and autonomy. Furthermore, if such an interpretation were accepted, it would be rather implausible not to extend the right to undergo FGM to female minors who are able to give their free and informed consent, given that under Article 14 of the said Act, minors below 16 years of age have the right to undergo sex assignment or re-assignment with the parents’ and court’s authorization. This interpretative exercise was solely intended to highlight the complexities surrounding FGM and how it could relate to other Maltese laws, depending from which lens one looks at it.

4.6 Male Circumcision The final consideration relates to the legality of male circumcision (henceforth referred to as ‘MC’) on minors for non-medical reasons.134 It is outside this article’s scope to compare and contrast the medical consequences following FGM and MC. Suffice to say that MC is also prevalent in Malta, considering that there are communities of Islamic and Jewish faith for whom MC is an important religious and cultural tradition.135This bodily intervention is offered, free of charge, by the Maltese public health services for medical reasons. However, it is perfectly legal to request the intervention for non-medical reasons (even for the parents 134

Male circumcision on male minors is a custom practised all over the world, mostly by Muslims but also by Christians, Jews, animists, and atheists. It consists of the removal or cutting of some or the entire foreskin of the male’s genitalia. It is performed for three main reasons: (i) like FGM, as a cultural and initiation rite; (ii) for religious reasons, particularly in Judaism and Islam and (iii) as a routine operation and a measure of prevention, mainly in the USA. 135

In an informal conversation with a Maltese medical practitioner who assists asylum-seekers in Malta, it was brought to the author’s attention that male circumcision within the Jewish community in Malta is usually performed by the religious leader (March 2015). There is also knowledge of circumcision on male minors performed by traditional circumcisers within non-Jewish migrant communities in Malta- see Bonnici (n 16) Appendix I.

146

VOLUME XXVIIII

to request it on their son’s own behalf) in private hospitals or clinics and, for traditional circumcisers to perform the procedure. Thus, the practice is not yet formally considered as a violation of medical ethics, a threat to health or a violation of the rights of the child.136 However, the legality of this practice raises concerns regarding the right of the child to health and to decision-making, safeguarded under the Convention of the Rights of the Child.137 Arguably, when considering that every surgery, regardless of its severity, skill of the practitioner and the cleanliness of the environment, entails a risk to the person who undergoes it, it would appear rather discriminatory not to extend such protection to male minors from being subjected to MC against their will. This is increasingly being debated in a number of European countries and some, such as Germany and Sweden, have already set certain restrictions to its performance. 138

5. Conclusion It is hoped that this discussion has served to shed light on the intricacies surrounding the practices of FGM and their regulation. As many anthropologists observe, FGM offers a significant test of whether it is possible to harmonise cultural relativism with universal FHR principles. This, undeniably, requires an exercise of balance between majority and minority rights. In other words, it demands a regulatory model which admits of compliance with universal HR standards for the protection of females from forced genital mutilations, particularly children, and, at the same time, ensures respect for different cultural perceptions of gender and the body.

Although the debate concerning the tolerance or eradication of 136

Bonnici (n 16) 78-79, 105.

137

Convention on the Rights of the Child, Articles 24 and 12.

138

See Staffan Janson, ‘Circumcision of Young Boys: A Conflict between Parental and Child Rights. The Swedish Experience from a Medical Point of View’ in Jänterä- Jareborg M (ed), The Child’s Interests in Conflict: The Intersections between Society, Family, Faith and Culture (Intersentia Ltd 2016) and Marie Claire Foblets, ‘The Body as Identity Marker. Circumcision of Boys Caught between Contrasting Views on the Best Interests of the Child’ in the same publication.

147

ID - DRITT

FGM is still not settled at the international level, the criminalisation thereof has been imposed by HR law, particularly, by the Istanbul Convention. Thus the introduction of FGM legislation, clearly shows Malta’s commitment to comply with HR standards. At the same time, however, there are numerous inconsistencies within the text of the Maltese law and other aspects, which could potentially result in adverse legal and social consequences within the Maltese jurisdiction.

Perhaps the most problematic aspect of the law is its ethnocentric focus on the ‘traditional’ genital practices, which could render it too exclusive in application.

Some authors argue that a regulatory strategy is best assessed, not by its moral correctness but, by evaluating its public support, especially of those with whom the law directly or indirectly affects.139 In the case of FGM, this inevitably requires the engagement of individuals from practising societies in social dialogue, particularly when contemporary research shows that there is still support for these practices amongst some migrants currently residing in Malta.140 Hence, a more integrative approach towards regulating FGM is suggested in order to understand the phenomena in context as well as to avoid ethnocentrism. This could encourage the voluntary, rather than forceful, abandonment of these practices and increase the support from migrants coming from practising communities, thereby potentially securing a more effective implementation of the law.

139

See for eg. Robert Baldwin, Martin Cave and Martin Lodge Understanding Regulation: Theory, Strategy and Practice (2nd edn, OUP 2012) 34.

140

In a relatively recent study conducted by the National Commission for the Promotion of Equality (NCPE), it was noted that some of the male interviewees, who are currently residing in Malta with an international protection status and all of whom come from FGM-practising countries, either support or do not find any objection to the practices of FGM: NCPE, ‘Female Genital Mutilation in Malta: A Research Study’ (2016) 54-60 <https://ncpe.gov.mt/en/Documents/Projects_and_Specific_Initiatives/Forms%20of%20Violence/Report%20-%20FGM. PDF> accessed 18 July 2017; See also interview by writer Melanie Drury , ‘EXCLUSIVE: FGM- A woman reveals her own story about the horrific violation of millions of women’ (Little Rock, 22 February 2015) <http://www.writer4writing.com/exclusive-fgm-ndash-a-woman-reveals-herown-story-about-the-horrific-violation-of-millions-of-women.html> accessed 21 June 2017.

148

Evaluating the impact of the EU Directives regarding criminal investigations, namely 48/2013 regarding the rights of a suspect Consuelo Scerri Herrera

Consuelo Scerri Herrera acquired her Diploma of Notary Public from the University of Malta in 1988. In 1999, she acquired a diploma in Canonical Marriage and Jurisprudence in Procedure from the Ecclesiastical Tribunals of Malta. She has written many articles about various aspects of the law, Human Rights, Criminal Law and Procedure which were published in different law journals and books. She was appointed Magistrate in May 1997 and spent a number of years dealing with cases of a criminal nature.

ID - DRITT

1.Introduction

O

ver the last decade, the European Union (hereinafter referred to as the ‘EU’) has successfully created the concept of freedom of movement, wherein all citizens of the Union are free to travel from one Member State to another without the need of securing a visa. This may be done for a number of reasons: for work, vacation, or for educational purposes. As from the 1 January 2002, the experience of travelling in Europe changed completely. The introduction of Euro notes and coins, following the withdrawal of EU internal border controls, removed one of the key sensations of crossing from one country to another. If you set off from Dusseldorf, Marseille, Madrid or Treviso, you can now drive for days without finding out how many countries you have passed through. You pay in Euro — and you can even leave your passport buried in your luggage. Europe’s unity or, at least the Union’s, is now almost as obvious as its diversity.

Consequentially, this may lead us to the inevitable question as to why it is important that there are common procedural judicial rights available in all the European Member States. It is imperative to point out that, at this initial stage of the author’s study, there are about 14.1 million EU citizens who reside permanently outside their home country — 19% of EU citizens have lived or worked abroad at some time in their life and, 13% have gone abroad for education or training purposes1. In the light of all this, there are a number of people who are facing Criminal prosecution in different Member States, other than in that of their national State or State of residence. This state of affairs has shed light on the importance of addressing procedural rights. The EU felt the subsequent need to provide uniformity in the way suspects are treated across the EU, especially with respect to Criminal proceedings. The scope behind this is to guarantee the right to a fair trial to all such persons who eventually face Criminal interrogation.

An interesting question, which thus ensues, is that of who will benefit from all this uniformity of legislation. In the European area of 1

European Commission, ‘Memo’ (European Commission: Press Release Database27 November 2013 <http://europa.eu/rapid/press-release_MEMO-13-1059_en.htm> accessed 28 September 2017.

150

VOLUME XXVIIII

Justice, nationals must not only have the right to a fair trial anywhere in the EU, but also be confident that this right is effective everywhere in the EU, wherever they travel. Consequently, it was also important to introduce mutual recognition instruments; for example, the introduction of the European Arrest Warrant in order for judicial authorities across the EU to trust each other’s justice system. Therefore, it can be said in no uncertain terms, that fair trial rights are a win- win situation for all citizens, national police, and judicial authorities. On average, there are around 9 million people facing Criminal justice proceedings every year in the EU. Likewise, the number of European Arrest Warrants is on the rise. Statistics for the years 2005 to 2010 record the issuance of 68,580 European Arrest Warrants.2 Additionally, 15,923 European Arrest Warrant were also executed during the said time3. It is unlikely that such figures will ever decrease by a significant margin in the near future. Therefore, the strengthening of Criminal procedural rights and safeguards is important, as well as relevant, to all European citizens.

In the field of Criminal law, it is evident that at the basis of every Criminal trial there is the general principle that every person is entitled to a fair trial before an independent and impartial Court. For this to be respected, it is of paramount importance that all procedural safeguards are in place and functioning efficiently. Legal scholars are well aware of the direct consequences of the right to the presumption of innocence and the right to silence. A further principle is that of the prosecution’s responsibility to prove its case beyond any reasonable doubt- Should this reasonable doubt exist, this must go in favour of the accused4. These same principles are observed across the EU and in all democratic countries around the world.

In Criminal proceedings, the burden of proof should be on the prosecution and any doubt should benefit the suspect or accused person, without prejudice to the full independence of the judiciary when assessing the suspect or accused’s guilt. The right to remain silent, 2

ibid.

3

ibid..

4

Hence, the Latin maxim ‘In dubbio pro reo’.

151

ID - DRITT

the right not to incriminate oneself, and the right not to cooperate, are generally recognised international standards which lie at the heart of the notion of a fair trial. They guarantee that a suspect cannot be improperly forced to produce evidence which might lead to an unfair conviction which could breach the principle that the burden of proof lies with the prosecution. Such rights are all addressed in EU Directive 48/2013 which will be discussed in detail later on in this article.5

2. Pre-trial stage: the gathering of evidence incriminating an accused individual Until a few years ago, in Malta, the police exercised an unfettered discretion to deprive the freedom of a suspect for forty eight (48) hours during which time the suspect could be ‘convinced’ to release an incriminating statement to be used against himself in an eventual trial. Even though this statement would be subject to certain safeguards, the suspect would not have had access to a lawyer at any stage before arraignment.

This is no longer applicable thanks to the introduction of the EU Directive 48/2013.6 Nowadays, any person subject to a Criminal investigation has a right to legal assistance during the interrogation stage. According to the aforementioned EU Directive, this has to be extended not only to Criminal proceedings but also to European Arrest Warrant proceedings. The discussion about this had been going on for quite some time, especially in light of the Salduz v Turkey7 case. However, Directive 2013/48/EU 8, has ensured that the right to a lawyer is as effective as it can possibly be and that every suspect or 5

European Parliament and Council Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1.

6

ibid.

7

Salduz v Turkey App no 36391/02 (ECtHR, 27 November 2008).

8

European Parliament and Council Directive 2013/48/EU (n 5)- The scope of this Directive is quite clear and states (Article 2) that it applies to suspects and accused persons in Crimi-

152

VOLUME XXVIIII

accused person is to be made aware of this right. It applies until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the offence including, where applicable, sentencing and the resolution of an appeal.

Common minimum standards are vital for judicial decisions taken by one EU country to be identified by other Member State. This, of course, on the basis of the principle of mutual recognition. The principle of mutual recognition will only function well if there are proper measures that promote mutual trust. A cursory look at the decisions of the European Court of Human Rights clearly reveals, in a very manifest way, that there have been a number of violations to the rights of the defence as set out in Article 6 of the European Convention on Human Rights.9 In order for there to be an understanding of mutual recognition, the European Council asked the European Commission during the 2009 Swedish presidency to provide and submit proposals that would strengthen the procedural rights of suspects and accused persons in all EU Member States. This political mandate provided a strong cynosure for the reinforcement of these rights in Criminal proceedings and, thus, ensure a fair trial across the EU. A Roadmap known as the Stockholm Programme of Justice and Home affairs 2009 - 201410 was adopted in 200911 on the subject of procedural rights. In this article, the author, will be discussing the practical procedural safeguards in Criminal proceedings in the EU. These include the steps that were nal proceedings from the time when they are made aware by the competent authorities of a Member State by official notification as otherwise, that they are suspected or accused of having committed a Criminal offence. More so, this is irrespective of whether or not they are deprived of liberty.

9

ECHR Article 6.

10

European Council, ‘The Stockholm Programme: An Open and Secure European Serving and Protecting Citizens’ [2010] 2010/C115/1 Official Journal of the European Union 1-38 <http:// www.eurojust.europa.eu/doclibrary/EU-framework/EUframeworkgeneral/The%20Stockholm%20Programme%202010/Stockholm-Programme-2010-EN.pdf> accessed 28 September 2017.

11

see Council of the European Union: Resolution of the Council on a roadmap for strengthening procedural rights of suspects or accused persons in criminal proceedings (PJC, 4.12.2009) p 1.

153

ID - DRITT

taken to harmonise procedural guarantees in the Maltese system in order to be in line with the other 26 Member States of the European Union. Particularly, so that Article 6 of the European Convention12 regarding the right to a fair trial will be guaranteed to all people across the EU to both its citizens and those coming from third world countries. The breakthrough was the resolution of the Council of 30 November 2009 on a roadmap for strengthening procedural rights of suspected persons or accused persons in Criminal proceedings.13 Since the 1999 adoption of the Tampere Conclusions14, Member States have come into agreement that mutual recognition would be the linchpin of judicial cooperation. In other words, those decisions taken by the Courts of one Member State should be considered as akin to each other, wherever that decision is taken and thus, enforceable anywhere in the EU. The Stockholm Programme echoed the importance of Criminal judicial cooperation and, went a step further by providing for a meticulous examination of the minimum Procedural Rights15 for accused and suspected persons. This was referred to as a fundamental value of the Union. The perception that the rights of suspects and accused persons were not respected in each occasion, had an improperly negative effect on mutual trust and, consequently, on judicial cooperation.

To increase mutual trust and, thus, enhance the cooperation of mutual recognition, in November 2009, the Council of European Union adopted the Roadmap on Procedural Rights setting out a stepby-step approach to strengthening the right of suspects and accused persons.

The roadmap measured16 the following: 12

ECHR (n 9).

13

Council Resolution 2009/C 295/01 of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [2009] C95/1.

14

Tampere European Council, 15and 16October 1999, during the Presidency.

15

ibid.

16

Estella Baker, ‘Procedural Safeguards in Criminal Proceedings in the European Union in Practice’ EJTN De Montfort University of Leicester <http://www.ejtn.eu/Documents/About%20 EJTN/Criminal%20Justice%202016/Procedural%20Rights%20Portorose/Baker%20Llubljana. pdf> accessed 28 September 2017.

154

VOLUME XXVIIII

• Measure A - Translation and Interpretation; • Measure B - Information on Rights and Information about the Charges; • Measure C - Legal Advice and Legal Aid; • Measure D - Communication with relatives, employers, and consular authorities; • Measure E - Special safeguard for suspected of accused persons who are vulnerable; • Measure F — A Green paper on pre-trial detention.

This roadmap, however, emphasised that the order of the rights is only indicative and, thus, implied that it could be changed in accordance with priories. On 11 December 2009, the European Council welcomed this roadmap and made it part of the Stockholm programme17 entitled ‘An open and secure Europe serving and protecting citizens ‘.

Each measure was aimed at dealing with a distinct procedural right, or set of rights, for suspects or accused persons as identified by Member States and third parties alike, as needing to be strengthened by action at EU level. The purpose was to bind legislation applying to every suspect in Criminal proceedings in all Member States, thus protecting the EU citizens and third country nationals alike in cases including cross border proceedings in order to clarify existing rights or even create new ones at EU level, but only in relation to the respective specific issue each measure is supposed to address.

The EU Directives which describe these rights are the following:a. The right to interpretation and translation in Criminal Proceedings - (Directive 2010/64/EU).18 The purpose of such a Directive was to ensure that the rights of 17

European Council (n 10).

18

European Parliament and Council Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1. .

155

ID - DRITT

the defence are fully exercised. The common minimum standards concern inter alia that interpretation must be free of charge, translation of essential documents and the quality of the interpretation and translation have to be sufficient to safeguard the fairness of the proceedings;

b. The right to information about rights in Criminal Proceedings – (Directive 2012/13/EU);19 Information about procedural rights include right to access a lawyer, entitlement to free legal advice, right to be informed about the accusation, right to the interpretation and translation for those who do not understand the language of the proceedings, and the right to remain silent.

Written Letter of Rights are also protected under this Directive.

These rights includethe right to access case materials, the right to have a consular authority and to have one person informed (such as a family member or employer), right to access to urgent medical assistance, right to know the maximum hours or days that a person can be deprived of his liberty, the possibility to challenge the lawfulness of an arrest.

c. Right of access to the materials of the case – right of disclosure. d. The right to legal advice in Criminal Proceedings and the right to communicate upon arrest (Directive 2013/48/EU;20 This includes the right of access to a lawyer in Criminal proceedings. This right provides that the lawyer has a right to participate ac19

European Parliament and Council Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1. .

20

European Parliament and Council Directive 2013/48/EU of 22 October 2013 on the right to legal advice in criminal proceedings and the right to communicate with third persons and with consular authorities whilst deprived of liberty [2013] OJ L294/1.

156

VOLUME XXVIIII

tively prior to the interrogation as well as when the suspect is being questioned.

It also includes for the first time the right to access a lawyer in European Arrest Warrant (EAW proceedings). Under this Directive the right to a lawyer is a right which must be guaranteed both in the country that issued the European Arrest Warrant as well as in the country where the warrant is to be executed. This Directive applies from the first stage of police questioning and throughout Criminal proceedings.

e. Procedural safeguards for children who are suspects or accused persons in Criminal proceedings - Directive EU 2016/800;21 f. The strengthening of certain aspects of the presumption of innocence and the right to be present in criminal proceedings Directive |EU 2016/343 which has an implementation deadline of 1st April 2018.22 The author will explain the contents of these Directives in so far as they concern the topic under review and why these Directives are ‘binding on all EU member states as to the result to be achieved’ but leave to the Member State ‘the choice of form & Method’23 . Therefore, the author hopes to make reference to Malta’s Laws when such Directives were adopted into our legal regime and how they have been interpreted so far by making reference to case law. Furthermore, the author will also be discussing the proceedings that can be taken by the European Commission if any Member State fails to implement24 21

.European Parliament and Council Directive 2016/800/EU of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L132/1.

22

European Parliament and Council Directive 2016/343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1.

23

Consolidated Version of the Treaty on the Functioning of the European Union [2012] C326/47 Article 288.

24

ibid Articles 258 and 259.

157

ID - DRITT

such Directives. Also, further proceedings can be brought for failure to remedy a breach resulting in the Member Sate being fined25. Reference must be made to the consequence that may ensue if a Members State fails to apply such Directives since this would mean a loss of a substantive right of an individual and, therefore, the State would be liable26. This could also lead to a loss of mutual trust and confidence in the judicial system in Member States.

Over the years, the rights enjoyed by suspects have been strengthened considerably so that their rights to a fair trial as embraced in the European Convention and Constitution of Malta are better safeguarded. Today, however, with the introduction of the EU Directive 48/2013 entitled ’The right to legal advice in Criminal Proceedings and the right to communicate upon arrest’27 the rights of a suspect have undoubtedly been strengthened. In the past, in Malta, prior to interrogation, a suspect was only given a caution, wherein he was informed of his basic right to remain silent and his basic right to self-incrimination. In particular he was informed that all that he stated would be recorded in writing and could be used as evidence again him.

In effect, EU Directive 48/201328 has now made it quite clear that suspects or accused persons shall have access to a lawyer without delay, during all stages of their deprivation of liberty, starting before they are questioned by the police or judicial authority, through to the final determination of the case. This Directive29 also provides that the suspect or accused person has the right to have a third party informed of his detention and, to communicate with third parties as well as with consular authorities, whilst deprived of liberty30. Never25

ibid Articles 260.

26

Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur SA v BundesRepublik Deutschland and The Queen v Secretary of State Transport, ex parte Factortame Ltd and others [1996] ECR I-1029; Case C-224/01 Gerhard Köbler v Austria [2003] ECR I-10239.

27

European Parliament and Council Directive 2013/48/EU (n 5).

28

European Parliament and Council Directive 2013/48/EU (n 5).

29

European Parliament and Council Directive 2013/48/EU (n 5).

30

European Parliament and Council Directive 2013/48/EU (n 5) Articles 5-7.

158

VOLUME XXVIIII

theless, its temporary derogation, should it be applicable, will also be discussed in detail in this article. Linked to the right to be assisted by a lawyer is the right to legal aid which is intrinsically linked since in the prior Directive on access to a lawyer it only provided for access to a lawyer ut sic31 and remained silent on what happened if a suspect could not afford a lawyer. It is to be noted that when suspects lack resources and, are deprived of their freedom and do not know of a lawyer, access to a lawyer cannot be effective unless the State provides legal aid and ensures legal assistance. This is precisely what this EU Directive32 entertains in its provisions and this, in line with Article 6 of the European Convention33, which requires as a rule that suspects or accused persons are granted access to legal assistance the moment they are taken into police custody or pre-trial detention as well that such assistance is assigned officially if need be. This Directive provides for provisional legal aid during those early stages of the proceedings, even if the suspect has not been deprived of his liberty.

This unlike what is provided for in the European Convention. The Directive 2013/4834 applies to all Criminal proceedings irrespective of whether they present a cross-border element or not. The reason for this is that both the policy objectives as described further on can only be met if minimum rules apply to all Criminal proceedings.

It appears that this Directive is the natural successor to Directive 2012/13/EU on the right of information in Criminal proceedings introduced on the 22 May 201235 and Directive 2010/14/EU on the right to interpretation and translation in Criminal proceedings introduced on the 20 October 2010.36 The personal scope of application of this EU Directive 2013/4837 is that the suspect is guaranteed the right of access to a lawyer and this, 31

Translation: Use your own property in such a way that you do not injure other people.

32

European Parliament and Council Directive 2013/48/EU (n 5).

33

Ibid (n 9).

34

European Parliament and Council Directive 2013/48/EU (n 5).

35

European Parliament and Council Directive 2012/13/EU (n 19).

36

European Parliament and Council Directive 2010/64/EU (n 18).

37

European Parliament and Council Directive 2013/48/EU (n 5).

159

ID - DRITT

both during Criminal proceedings as well as in European Arrest Warrant proceedings. Therefore, should a person become a suspect, or be accused while being questioned by the police or by another law enforcement authority, such a right will offer protection as well.38 When reference is made to Criminal proceedings, the designated ‘suspect’ or ‘accused person’, is linked to the time when a person is made aware of the fact that he is suspected or accused of having committed a crime, whether through an official notification or not. This can be seen in the Deweer v Belgium39. Here, the applicant was only given a formal pro iustitia40statement by the prosecutor as well as an unofficial notification of the charges brought against him. The Court held that the ‘accusation’ brought against a person does not necessarily need to embrace a certain format and thus, the legal right covers any relevant act coming from a public authority which changes the persons status by containing an indirect charge.

With regards to the material scope of this Directive, minor offences are exempt from its application41. However, if a person has committed a minor offence and can be legally deprived of his liberty, the Member State is bound to ensure that the provisions dealing with fundamental human rights are respected. This includes access to legal assistance42.

It is now up to each and every Member State to guarantee the 38

Article 2 (1) of the Directive provides: ‘This Directive applies to suspects or accused persons in criminal proceedings from the time they are made aware by the competent authorities of a Member State, by official notification or otherwise that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the offence, including where applicable, sentencing and the resolution for any appeal’.

39

s. Deweer v Belgium App no 6903/75 (ECtHR, 27 February 1980).

40

Translation: On behalf of justice.

41

The explanation is conferred by the Preamble of the Directive, in particular recitals 16 and 17.

42

See Lorena Bachmaier Winter, ‘The EU DirectiveThe Right to Access a Lawyer: A Critical Assessment, Human Rights in European Law’ ‘Non-judicial sanctioning proceedings for minor offences fall out of the scope of the Directive and, only if handled before a court with criminal jurisdiction will the right to a lawyer arise. Those cases where minor offences are considered to be criminal offences, but are dealt with by non-judicial authorities, will be willing to be considered as criminal proceedings for the purpose of granting the right to access a lawyer’.

160

VOLUME XXVIIII

smooth running of these Directives, all aimed in furtherance of the most important basic right for the assurance of justice, which is that of the right to a fair trial.

It is worth discussing the new Directives in more detail and how they have come into place to provide minimum standards and how they have been adopted into Malta’s local legislation. The author will outline scenarios should they result, where such rights are less favourable to a suspect and accused then those ensuing from the European Convention. However, in so doing, she will pinpoint how they can still work together and strengthen one another.

These Directives, particularly EU Directive 48/201343, have been made part of our laws through Act LI of 2016. Much has been said with regards to the amendments that were introduced into our legislation by Act III of 2002. Close reference should be made to the right to legal assistance prior to interrogation, where the time given for such assistance was merely an hour. Nowadays, it results that such a right is a universal right applicable to all without time limits being imposed. Sadly, however, it does not appear that the national Courts of Malta have fully adopted this approach. A number of judgements have indicated that such a right is applicable in toto44 only to vulnerable persons and, they do not consider such a right as one of an absolute nature. Despite the teachings being given from time to time from the European Court of Human Rights, it does not appear that the national Courts were adopting such rulings in their entirety. This created a lot of legal uncertainty45. Reference to local judgements to expound on such a statement was made. The writer will also discuss the 43

European Parliament and Council Directive 2013/48/EU (n 5).

44

Translation: Completely.

45

15/2002 Victor Lanzon nomine vs Kummissarju tal-Pulizija, (Constitutional Court) 29November 2004; 32/2011 Ir-Repubblika ta’ Malta vs Alfred Camilleri, (he First Hall, Civil Court) 16January 2012; 44/2016 Trevor Bonnici vs -L-Avukat Ġenerali, (First Hall, Civil Court) 10 November 2016;34/2009 Il-Pulizija vs Mark Lombardi, (Constitutional Court) 12 April 2011; 35/2012 Anthony Taliana vs Police Commissioner (T Constitutional Court) 6 February 2015; 43/2011 Ir-Repubblika ta’ Malta vs Martin Dimech, (Constitutional Court) 26 April 2013; 20/2009 Il-Pulizija vs Alvin Privitera, ( Constitutional Court) 11 April 2011.

161

ID - DRITT

Human Rights46 aspect with regards to the taking of statements and whether or not the latter are in line with the provisions that secure the right of fair trial under the European Convention The author will not be able to discuss the rights of a suspect or accused person prior to interrogation before expounding on the legal system that is adopted in Malta. In other words, she will explain the moment an investigation is initiated by the executive police, proceedings heard before the Court of Magistrates as a Court of Criminal Inquiry prior to the issuing of a Bill of Indictment, as well as the investigations carried out by the Magistrate on duty. Up until 2013, with the enactment of the EU Directive 2013/4847, the tendency was to believe that the pre-trial stage was that stage prior to an arraignment- in other words, what happened during the hours of arrest before the investigative police or what happened during a magisterial inquiry. This position seems to have been altered by means of the above mentioned EU Directive 2013/4848, and subsequently in Malta by Act LI of 2016 which provides that pre-trial exists until the very stage that a Bill of Indictment is issued even though such a suspect would have been arraigned before a Court of law.

In introducing the subject further, particular reference must be made to the way statements are recorded. This will be dealt with in the First Chapter. This study will explain the legal position regarding the taking of evidence and the relevance and the admissibility of such evidence. In so doing, she shall make a comparison between the system that is adopted in the United Kingdom as established in the Police and Criminal Evidence Act 1984 (PACE)49 as opposed to the Maltese system which is governed by the Criminal Code50 and the Police Act51.

46

Colin Tapper, Cross & Tapper Criminal Evidence (12th edn, Oxford University Press 2010) 655ff.

47

European Parliament and Council Directive 2013/48/EU (n 5).

48

European Judicial Network, ‘European Judicial Network plenary meeting in Luxembourg’ (EJN, 2016) <https://www.ejn-crimjust.europa.eu/ejn/newsdetail.aspx?id=427> 49

The Police and Criminal Evidence Act 1984(PACE) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime. It also provided codes of practice for the exercise of those powers.

50

Criminal Code, Chapter 9 of the Laws of Malta, Article 658.

51

Police Act, Chapter 164 of the Laws of Mata.

162

VOLUME XXVIIII

This comparative study shall be made due to the fact that the Maltese system is largely based on the British system. In her writing the author shall explain the level of burden of proof that is required before a Criminal Court, as well as the difference in presumptions of fact and those of law, statements containing some prejudice.The author shall in furtherance discuss the position in Malta as opposed to that existing in foreign countries regarding the value that ought to be given if any to illegally acquired evidence52. For example, if one is dealing with evidence acquired from an illegal interception53 , the theory of the tree of the forbidden fruit and if it exists at all, applies in Malta. This is contrary to what happens to such evidence in the United Kingdom and the United States of America54. The judicial discretion in United Kingdom to exclude certain evidence is opposed to the system adopted in Malta, where the Courts have no discretion55. The author will discuss the prejudicial value of evidence as opposed to the probative value. Mention of procedural fairness will also be made, especially on provisions regarding legal advice56.

In this first chapter of the study the author will define the term ‘confession’ as understood in the Maltese legal system being all statements released by a suspect whether orally or in writing, contrary to what seems to be the position in Britain where a confession is an admission made by a suspect during interrogation or upon arraignment in Court. She will distinguish between a ‘confession’ as understood in the Maltese system and an admission and discuss whether silence could be tantamount to an admission. The difference between a statement made under Article 658 of the Maltese Criminal Code as amended and a confession that is made in the United Kingdom under the PACE Act 1984 and what are the implications thereof. Whether it is necessary to give a ‘caution’ prior to the taking of a statement and what is the purpose if any, of such a caution, and what happens if 52

See Schenk v Switzerland App no 10862/84 (ECtHR, 12 July 1988) paras 45–and 46 Heglas v Czech Republic App no 5935/02 (ECtHR, 1 March 2007).para 84.

53

See Malone vUnited Kingdom App no 8691/79 (ECtHR, 2 August 1984). .

54

Miranda vArizona 384 US 436 (1966).

55

Criminal Code of Malta (n 50) Section 349(2) .

56

Butterworths, The Modern Law of Evidence ( 5th edn) 373.

163

[and

ID - DRITT

such caution is not given. Will the statement still be inadmissible57?

Whether any person can give a statement in other words whether a juvenile58, a person with disability or/and an old persons59 can be considered as competent witnesses to make a statement.

In Chapter Two, reference will be made to the Right to legal Assistance in Criminal proceedings. The writer will explain whether such a right can be waived and if it can be waived what are the implications that may ensue. Consideration will also be given to the topic of confidentiality of communication between the lawyer and the client. In so doing she will touch upon the client privilege, on temporary derogations if any and mention those situations if any when such derogations can be given. She shall make particular reference to the Guidelines issued by Malta’s Commissioner of Police prior to this right finding itself on our written legislation. Naturally, when treating such a right particular mention will be made to the Right to legal aid together with a clear exposition of the current position in Malta taken by the Court in interpreting such a right. The chapter will also include an explanation on the Right of access to a lawyer in European Arrest Warrant (EAW proceedings). She will conclude this second chapter by stating whether such a right is exhaustive or whether fresh blood is needed to raise the minimum standard.

While procedural rights are set out in the European Convention of Human Rights or alluded to through case law of the European Court on Human Rights, rules on exactly when a person has the right of access to a lawyer or what role can such lawyer have at pre-trial stage differs from one Member State to another. There was until recently a lack of minimum harmonisation requirements within the EU and thus this state of affairs could have threatened the fairness of Criminal proceedings and at times led to a miscarriage of justice (as will be 57

Tapper (n 46) 505.

58

JohnR Spencer and Rhona Flin, The Evidence of Children; The Law & Psychology, (2nd edn, Blackstone and Press 1993). , See also European Parliament and Council Directive 2016/800/ EU The Right of a Child to be Informed in the Presence of a Parental Authority[2016] OJ L132/1, which has not yet implemented. The implementation oFsaid Directive is scheduled to start on 11 June 2019.

59

Tapper (n 46) 664ff.

164

VOLUME XXVIIII

pointed out in case law of the EU). This also impinged on the mutual trust that should be embraced between Member States and thus also hindered judicial cooperation at times. Trust can only be guaranteed if there are common minimal standards of essential basic procedural rights applied throughout the EU countries.

The Third Chapter will be entitled the Right to Silence60 with its limitations and the right against self -incrimination. In discussing this Chapter as an introduction she will delve into the historical origin of this Privilege. She will examine the Privilege as interpreted through case law of the European Court of Human Rights. She will outline whether the right against self-incrimination is closely linked to the presumption of innocence and whether such privilege against self-incrimination is an absolute or relative right. Particular mention will be made to the right to silence as codified in the laws of Malta.

Coupled with this right are the inferences that may be drawn and thus she will explain those inferences as envisaged in the Criminal Code of Malta as indicated in Article 355AT and 355AU of the Maltese Criminal Code61 as recently amended by Act LI of 2016 as opposed to those Inferences and Jury direction made under the Criminal Justice and Public Orders Act of 1994. She will conclude this Chapter by affirming whether this is only applicable before a Court of Law or whether the right to silence can be adhered to even before quasi-judicial bodies.

The Fourth Chapter is entitled The Right to Disclosure where after analysing such right in detail she will discuss the position under Maltese Law subsequent to the EU Directive 2012/2013.62 She will also prove that such a right is also envisaged under the European Convention. In so doing she shall provide a definition to the term ‘documents’ for the purpose thereof. Naturally a comparative study will be 60

Saunders v United Kingdom App no 19187/91 (ECtHR, 17 December 1996); –Choudhary v the United Kingdom App no 17439/90 (ECtHR, 4 May 1999);( Salduz v Turkey (n 7); . Dayanan vTurkey App no 7377/03 [(ECtHR, 13 October 2009); Ambrose -V- Harris [2011] . Jalloh v Germany App no 54810/00(ECtHR, 11 July 2006).; Borg v. Malta App 37537/13 (ECtHR, 12 January 2001) (ECtHR, 12 January 2016); Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979);. Artico v Italy App no 6694/74 (ECtHR, 13 May 1980). .

61

Criminal Code (n 50) Articles 355AT and 355AU.

62

European Parliament and Council Directive 2012/13/EU (n 19).

165

ID - DRITT

made with the position in the United Kingdom.

The Fifth and last Chapter prior to the conclusion shall discuss a myriad of rights in general namely the Right to be present at trial which is not a right that is enjoyed in all EU Member States. The Right to interpretation and translation, the Right to have a family member or third party informed of deprivation of liberty, the Right to Medical assistance if needed once in detention. The Right to communicate with third persons & with Consular authorities whilst deprived of liberty making reference to EU judgements – Directive 2013/48.63 The Right to information about rights. To conclude this chapter she will indicate whether all these rights well enforced.

This article aims to focus on the procedure that has been adopted by the police upon interrogation, what is actually being done and what is prospected of being done in the light of Act LI of 2016 in pursuant to the EU Directive 2013/EU/48.64 She will also inquire whether there is still room for improvement keeping in mind that the accused person is entitled to a fair trial and at the same time that justice is meted out with respect to with to the victim. It must be emphasised that these rights as found in the EU Directives provide for minimum standards and thus existing laws which provide a stronger threshold are still to hold water.

The author will discuss whether any progress with police investigation in dealing with the rights of an arrested person is envisaged.

This being said especially in the vein of the introduction of the EU Directives identified earlier on in the article , namely, though not only, on whether the right to provide for legal assistance during detention has facilitated investigations or whether it has complicated the existing system to the effect that the police are now struggling with their prosecution. The author will explain in detail the effect of these new Directives identified above which have been imported lock stock and barrel into our Criminal Code. In carrying out her research she will make recommendations as to how the system can be improved, al63

European Parliament and Council Directive 2013/48/EU (n 5).

64

European Parliament and Council Directive 2013/48/EU (n 5).

166

VOLUME XXVIIII

ways keeping in mind that the accused person is entitled to a fair trial from the very start of an investigation even prior to his arraignment since what happens in an investigation is reflected and carried forward later on in the trial.

The author shall be carrying out this work by referring to EU Directives, European Court judgements, parliamentary debates, peer reviews, foreign books, and local case law. This will be done in order to obtain insights and clarifications as to the meaning and scope of the various elements of revisiting the rights to legal advice and to the investigative measures adopted by the police and inquiring magistrate used in order to obtain a confession.

In so doing, she shall be taking a pragmatic approach to this study since she will employ different methods of research enabling triangulation. For example reference shall be made to a variety of data sources (data triangulation) namely statistics and documented analytical results, make use of several different research studies (investigator triangulation) namely peer written publications , examine a number of perspectives to interpret results (theory investigation) and scrutinize different methods to study the research problem (methodological triangulation). Her intention is to see whether in view of the European Court judgements that are being given in the light of these new Directives our local courts and police investigations will be changing their approach.

167

Crypto-Currency Law

Is current legislation ready to embrace the Blockchain revolution, and what is the legal position of Initial Coin Offerings (ICO’s)?

Jonathan Galea, Joseph F. Borg, Erika Micallef, Miriana Borg

Joseph F. Borg is an Advocate and Senior Advisor to WH Partners, practising mainly in the areas of Gaming, Blockchain, E-sports, Corporate, IT, Telecommunications and Intellectual Property Law. He also lectures Gaming Law at the University of Malta. Borg is a Co-Founder and currently the Vice-President of Bitmalta, which is a non-profit organisation with a mission to promote and stimulate discussion about blockchain technology and cryptocurrencies in Malta. Before joining WH Partners, he occupied the post of Chief Regulatory Officer of the Maltese Lotteries and Gaming Authority.

Borg was also an elected Member on the Board of Trustees of the International Association of Gaming Regulators (IAGR).

Jonathan Galea is a Blockchain and Cryptocurrencies Lawyer, and is the current President of Bitmalta. Jonathan’s considerable experience in the blockchain sector of over four years ranges from a close study on the developing regulation in the area to hands-on experience in the technical and economic aspects of cryptocurrencies. Jonathan’s LL.D. (Doctorate of Laws) thesis was titled “The Effect of Bitcoin on Money Laundering Law”, which was completed in May 2015.

Erika Micallef and Miriana Borg are legal trainees with WH Partners. They are currently reading for a Bachelor of Laws degree at the University of Malta, and will be graduating in 2018.

ID - DRITT

This article was written, submitted and sent for review prior to the Maltese Government’s recent announcement on the promulgation of a number of legal acts related to the legal recognition of DLT and Blockchain.

Nevertheless, at the time of publication, none of these laws have been enacted.

1. Introduction 1.1 What is Blockchain technology?

B

lockchain technology is a term which is being heard of more frequently. In order to understand the very essence behind this phenomenon, one should start by dismantling the term itself.

Block can be better referred to as records, where one block comprises of multiple transactions. In turn, Chain refers to the link which is made between such blocks. Therefore, Blockchain is a general ledger consisting of a long list of interlinked blocks in which numerous transactions are stored.

A revolutionary aspect of Blockchain technology is a decentralised system that relies on networked computers which keep a record of all the transactions that have been done. In fact, a key feature of this technology is that the records are not stored in a centralised location or taken care of by a single entity. This network of computers is constantly updating and verifying all the transactions that have happened, rendering it impossible to go back and amend them.

The purpose behind public Blockchain technology is that users can transact directly and more freely without the need to depend on trustees to transact, because in such a case the authority is vested in the software. Therefore, in essence, Blockchain technology is a digital book of deeds wherein the whole Blockchain community does its vetting.

Blockchain allows for accurate traceability and transparency be170

VOLUME XXVIIII

cause it relies on keeping an indelible record of everything. Having permanent records means that the Blockchain network enhances the reliability of data. Apart from being incorruptible, records are transparent allowing users within the specific Blockchain network to check other people’s transactions.

Blockchain technology has come far in the last decade, with wariness surrounding such novel technology turning into closer scrutiny and eventually experimentation of its myriad uses even by governmental authorities. Ironically, Susanne Tarkowski Tempelhof1 says that the exponential growth in adopting decentralised ledgers will render government superfluous. However, in reality, this will not lead to the end of government but rather a shift in government adopting a peer-to-peer form of governance.

2. Features of Blockchain technology 2.1 Cryptocurrencies There are various methods of payment and with the financial system rapidly moving towards a digital economy, the idea of a paperless economy is being even more favoured. Cryptocurrency is undoubtedly one of the greatest Blockchain technology innovations of the 21st Century and certainly the next evolution of money.

One should not confuse virtual currencies with cryptocurrencies.

The latter is a virtual currency which is however cryptographically secured. This renders all the scaremongering comments relating to potential threats risks superfluous. With the technology developing exponentially, adoption of this new phenomenon in Malta will attract Blockchain companies, which are currently exploding, to invest and settle their business in Malta, not to mention that acting as pioneers will encourage EU States alike to follow up on what we would have already built.

1

CEO and founder of Bitnation.

171

ID - DRITT

2.2 Blockchain Ledger Blockchain Ledgers are divided into two; Permissionless Ledgers and Permissioned Ledgers.2 The former, commonly referred to as Public Ledgers, allows anyone to contribute data to the ledger. In fact, it is considered to be the best network for Bitcoin, since none of these networks are owned, and it is considered more suitable for censorship resistant applications. Furthermore, the advantage of Blockchain is that the public ledger cannot be deleted or modified once the data has been approved by all nodes.

Permissioned Ledgers, also referred to as Private Blockchains, allows only a limited number of trusted participants to contribute data to the ledger. The reason behind it is that, contrary to Public Blockchains, the network may be owned by one or more owners. However, regardless of the fact that it is limited to a group of people, it is considered to be the best ledger for applications requiring simplicity, transparency, and speed.

2.3 Bitcoin as the corollary of Blockchain technology Developed in 2008, Bitcoin is a digital asset which has no tangible or material form. In fact, it is commonly referred to as virtual gold. An attractive characteristic of Bitcoin is that it is a decentralised currency in that it lacks the oversight of trusted intermediaries or central authorities, such as banks, which manage the exchange of funds. This renders it more efficient and allows people across the world to freely interact with each other.

Many people confuse Bitcoin with Blockchain but in reality Blockchain technology is much broader than just financial transactions.

That being said, Blockchain serves as the backbone of Bitcoin. Innovators behind Bitcoin had set it up with the intention of not only rendering it a more convenient way of online payment, but as an inde2

Matt Chwierut, ‘Asking Permission: What’s The Difference between a public and a private blockchain?’ (Smith + Crown 21 July 2016) <https://www.smithandcrown.com/permission-blockchains/> accessed 23 October 2017.

172

VOLUME XXVIIII

pendent way of transacting without the meddling in of banks and the State. It is based on the trust of the parties involved and not vesting trust in a third party independent from the transaction itself.

Initially considered to be an online science project programmed and managed by a small group of people, it has become mainstream within years. Blockchain software facilitates transactions to the extent that with just a simple click one can easily become an owner of a virtual wallet where Bitcoins are stored. Bitcoins can be acquired over the internet. A Bitcoin address will be provided to the users, which will allow them to receive and transfer money with no additional complicated registration requirements, national borders, or any trusted third party getting involved. Therefore, compared to the traditional economic transactions, by making use of Blockchain technology, we are trusting ourselves and the users within that Blockchain community.

Although Bitcoin is recognised worldwide, it remains a relatively new product which is not universally understood, and is not commonly used, especially due to the lack of regulation and security concerns. However, Bitcoin transactions are highly secured by way of cryptography: every detail emanating therefrom is encrypted. Therefore, the nodes in Blockchain are all anonymous. This anonymity helps prevent attacks and other attempts which disturb Blockchain transactions.

Another intriguing characteristic is its mathematical framework which renders it if free from politics and any human error. In addition to this, it is a global currency which can be used in cross-border transactions without there being any cross-border remittance fees. However, its pseudonymous characteristic tends to worry authorities, especially since it encourages users to use it for illicit purposes. For this reason, this digital money phenomenon has initially been termed as a shady method of payment, with better education on the subject slowly overturning such initial opinion.

Bitcoin has been plagued by wild price fluctuations which can be considered as risky and unattractive to both investors and the general 173

ID - DRITT

consumer. This high price volatility reduces the likelihood of having price stability, further linking this method of payment to being an illegitimate currency. However, despite such teething problems, it has definitely been considered as the ideal solution to record-keeping problems which normally requires a trustworthy public ledger.

Software wallets are common when using cryptocurrencies. This may however make potential users hesitant. The reason is that if a user either loses access to the Bitcoin wallet or else loses the hard-disk or other storage medium on which the Bitcoin is stored, then it would be impossible for that user to have access to or retrieve his stored Bitcoins. One should keep in mind that Bitcoins are digital money and therefore the wallet itself does not contain Bitcoins but merely tracks the balance of coins which are themselves stored on the underlying Blockchain.

Some of the companies which accept Bitcoin as payment are Microsoft, Dell, and Steam. Recently in February, the Maltese Prime Minister announced that the first draft of a national strategy to promote Bitcoin and the Blockchain economy was approved by the Cabinet.

One of the benefits of Blockchain technology is that it is possible to transfer and exchange money more efficiently. This is mostly seen in crowdfunding events.

2.5 Bitcoin Mining Contrary to traditional flat money systems, in Bitcoin, money is not printed but is created through computer networks around the world which mine for coins by competing with each other. The mining procedure takes place once transactions are recorded on the Blockchain. At that point, miners put that transaction through a process, where information is retracted from the block, and rewards successful calculations through the use of a computational algorithm.

This translates transactions into an encrypted code, most commonly referred to as a hash.3 3

Corin Faife, ‘Bitcoin Hash Functions Explained’ (Coindesk, 19 February 2017) <https://www.

174

VOLUME XXVIIII

This hash is stored along with the block. Hashes can be produced by collecting large amounts of data; however every hash is unique.

One amendment to a character within the Bitcoin block will completely change the sequence. Every time a hash is successfully created, the miners obtain the newly created coins. It is the competing for the acquisition of coins which incentivises mining. Miners should not change the transaction data on a particular block because once they meddle with the information, it will result in a completely different output of the hash function.4 In essence, Bitcoin is a peer-to-peer electronic cash system sourced from an open-source software. The Blockchain only records the transactions and not the identities of its users. There, individuals could exchange money without them being identified since the users are only identified on Bitcoin’s public ledger through their wallet addresses. Should the users behind such addresses become identified, then all their data is laid bare to the public eye.

2.6 Innovative introduction to Smart Contracts This innovative Blockchain technology has triggered the concept of smart contracts, also referred to as self-executing contracts. Being a decentralised system, Blockchain technology blocks out any interference and manipulation by third parties, rendering smart contracts an ideal and efficient means of concluding agreements. Smart contracts consist of a software code which automates tasks, is cheaper, and also more secure as it reduces errors which might be done when manually filling up forms.55 Smart contracts are a transparent, conflict-free way of exchanging money. Several projects are exploring the possibility of making smart contracts more accessible to the general public. One could start off coindesk.com/bitcoinhash-functions-explained/> accessed 23 October 2017.

4

‘What Is Hashing? Under The Hood of Blockchain: An indepth guide by BlockGeeks’ (BlockGeeks) https://blockgeeks.com/guides/what-is-hashing/ accessed 23 October 2017.

5

‘Agrello - How It Works’ (Agrello.org, 2017) <https://www.agrello.org/how-it-works> accessed 23 October 2017.

175

ID - DRITT

by simply drafting a digital, potentially legally binding, multi-party agreement. The agreement is then compiled into a smart contract code which is then digitally signed and stored on the Blockchain.

Agrello is one of the most promising upcoming graphical interfaces for smart contracts. It provides several agreement templates and every party chooses the template which best fits their needs.

Due to its lack of legal viability it does not always fit the intentions embedded within the legal ambit. However, Agrello’s smart agreement solution has put this problem to rest by setting up templates which are written by a network of lawyers and paralegals in order to enhance legal surety.

Blockchains and smart contracts hold great potential for the automation of business relations. Decentralized Autonomous Organisations6 are currently the highest form of smart contracts, which allow the management of an organisation and other transactions to be made without the need of an intermediary. A major advantage which DAOs have over traditional organisations is their financial efficiency.

2.7 The impact of Blockchain on various sectors The nascent technology of Blockchain and cryptocurrencies has triggered numerous projects in a variety of sectors. This recent distributed ledger technology has the potential of affecting and transforming the economic, political, and social aspects of a particular jurisdiction.

Blockchain technology may largely be thought of as solely disrupting the traditional financial sector, however, its impact goes beyond that. Undoubtedly, having a network which removes the need of a central authority and having secure transactions being made without the interference of any intermediaries is a major shift in everyday life.

Beyond the financial industry, Blockchain technology is used in 6

Hereinafter referred to as ‘DAOs’.

176

VOLUME XXVIIII

various other sectors. Blockchain may also reform the loyalty point schemes, resorted to by retail as well as industries such as travel and hospitality. Blockchain technology might be revolutionary in the health sector as it will ensure cryptographic security enhancing protection of sensitive records.7 Adequate security will allow patients to easily share their records with various health care providers, while still being having control over such records.8 The enhanced record keeping function via Blockchain technology will also impact and significantly improve the legal industry. Unilaterally changing documents on the Blockchain is not possible, which renders the information more reliable and secure. If the parties resort to putting their contract on Blockchain its terms would be made transparent. Enforcement would also be automatic via an inbuilt logic command which execute an event when triggered. By way of example, if the contract specifies a certain date on which the parties agreed that a sum of money is to be paid, the enforcement of this agreement would be automatically made through Blockchain.9 Intrinsically linked to the legal profession is the area of land records. Blockchain technology could benefit the land records system by simplifying the traditional lengthy processes which usually attach to property matters. Records and any subsequent changes are timestamped, and thus, the verification of such transactions can be easily done. Any errors relating to transfers of title over a property would be better prevented.10 One may look at sectors such as intellectual property where Blockchain will provide a more secure and reliable dimension when prov7

David Schatsky and Craig Muraskin, ‘Beyond Bitcoin’ (Deloitte University Press, 7 December 2015) <https://dupress.deloitte.com/dup-us-en/focus/signals-for-strategists/trends-block> accessed 26 October 2017.

8

Boris Shiklo, ‘How Blockchain Can Improve the Health Information Exchange’ (Forbes, 27 June 2017) <https://www.forbes.com/sites/forbestechcouncil/2017/06/27/how-blockchain-canimprove-the-health-information-exchange/#5522a151f05b > accessed 26 October 2017.

9

Douglas Vaughn and Anna Outzen, ‘Understanding How Blockchain Could Impact Legal Industry’ (Law 360, 11 January 2017) <https://www.law360.com/articles/879810/understanding-how-blockchain-could-impact-legalindustry> accessed 26 October 2017.

10

Schatsky and Muraskin (n 8).

177

ID - DRITT

ing authenticity in works. The enforcement of more complex usage rights can also be carried out more easily. In addition to this, in the public-sector sphere, Blockchain technology may be utilised for vehicle registries, digital identities of individuals, voting records, and benefits disbursements.11

3. Initial Coin Offerings & Crowdfunding events 3.1 Introduction to Initial Coin Offerings The Initial Coin Offering12 is a fundamental aspect of the Blockchain technology. An ICO is an event, generally extending over a period of one week or more, in which start-ups sell their own generated cryptocurrency tokens to the public, before they are launched into the market in exchange for other tokens or other cryptocurrencies such as Bitcoin or Ether.

ICOs are considered to be more akin to the sale of a future money supply rather than the sale of securities. A reason for this is that most ICOs do not offer equity in start-up ventures but offer discounts on cryptocurrencies. ICOs have opened up vast pools of capital to dozens of firms and companies which are far from generating significant revenue. Normally, the management team and the advisors of an ICO get to keep a certain percentage of the number of tokens as a bonus for their successful launch of the business. Examples of successful ICOs include Augur, Waves, Status, and Bancor.

In an ICO, the coin or digital token which investors purchase using fiat money can be used in the future by that same investor in order to acquire a product or make use of a service which the said company offers. Therefore, ICOs can also be defined as crowd sale. Furthermore, ICOs are not regulated or registered with any government organisation and there are usually no investor protections other than what is built into the platform itself. Token supply is static in that every token 11

ibid.

12

Hereinafter referred to as ‘ICO’.

178

VOLUME XXVIIII

which is issued will have a pre-designated price that will not change during the Initial Coin Offering period.

Funds raised during the ICOs are used by developers in order to launch the proposed projects which are supported by white papers (also referred to as information memorandums) highlighting detailed information on the proposed project, and outlining its main aims and purposes in order to further attract investors, while at the same time indicating the commercial and marketing strategy. White papers may be extremely technical and confusing to some, however they ensure transparency by launching a roadmap as to indicate capital allocation.

3.2 Initial Coin Offerings in the light of Crowdfunding & Initial Public Offerings ICOs are considered to have similar characteristics to Initial Public Offerings13 and crowdfunding. Both events allow firms to raise capital from multiple sources. However, while IPOs issue shares of ownership, in the case of ICOs, the offering company sells digital tokens or crypto-coins created through Blockchain technology. In addition to this, ICOs are normally sought by early enthusiasts of a proposed project and not by professional investors.

Furthermore, IPOs are traditionally used at a late stage of startup businesses. Conversely, a common term used to describe ICOs is ‘kickstarter campaigns’. Although ICOs can be considered to be akin to IPOs, ICOs do not give investors an equity stake in the business.

This provides for a win-win situation by allowing start-ups to raise funds without the need of equity stakeholders.14 The success of ICOs has led market observers to believe that this new model of investments has the potentiality of overriding traditional investment methods. While ICOs can be a corollary to other 13

Hereinafter referred to as ‘IPOs’.

14

Helen Disney, ‘Navigating the Initial Coin Offering Minefield’ [2017] 0 ICO Crowd 26, 28-29 <https://issuu.com/icocrowd/docs/ico_crowd_-_issuu/28> accessed 26 October 2017.

179

ID - DRITT

sources of funds, including Venture Capital (VC), ICOs can in themselves be the primary source of funds.15 To substantiate the latter statement, ICOs have the advantage of existing in an innovative market as it thrives on a decentralised, democratised system which treats everyone who has access to it equally.16 The debut of ICOs was in 2013 and the first ICO was called MasterCoin, with Ethereum being the second successful ICO. ICOs have become a popular way to fund cryptocurrency projects and is considered to be an efficient means to fund new initiatives and ventures without any traditional limitations. They are generally announced on online cryptocurrency forums and websites.

Multiple ICOs are being held each day, and various tokens are being sold out in a matter of minutes. While initially there was a struggle to raise even minimum funds, nowadays it is common for ICOs to raise millions in a day. As of 21 July 2017, it was announced that more than $1.3 billion in cryptocurrency was raised through ICOs in the first half of 2017 in more than 50 projects and about $600 million was raised in the last 30 days alone. Currently, there are over 130 active and upcoming ICOs in the market.

3.3 Tokens The token is the main mechanism behind the functioning of the crowd sale. Although tokens may serve a currency function, they are much more than that; they boast multi-functionality due to the Smart Contract System which generates them. Tokens are highly programmable and can store complex, multi-faceted levels of value.17 Since the whole process is built on the Blockchain technology platform, the tokens can be exchanged for either local currency or cryptocurrency.

15

ibid.

16

Dinis Guardia, ‘HUMANIQ’ [2017] ICO Crowd 42, 44-45 <https://issuu.com/icocrowd/docs/ ico_crowd_-_issuu/28> accessed 26 October 2017.

17

Pavel Kravchenko, ‘A simple explanation of ICOs, Tokens and their Prospects’ [2017] 0 ICO Crowd 8, 8-9 <https://issuu.com/icocrowd/docs/ico_crowd_-_issuu/28> accessed 26 October 2017.

180

VOLUME XXVIIII

The issued currency carries a value which may vary between different ICOs. The token value may be based on a pre-determined amount of funds which the company intends to raise, divided by the total number of tokens to be issued. The value of the currency might also be defined by the market at the end of the ICO on the basis of the amount of equity raised. On the other hand, some tokens are designed specifically to represent the value of the underlying asset.18 In order to convince investors that the token represents the full value it claims to have, it is ideal that the company proposing a particular project backs such project by applying adequate legal regulation and protection thereto.

The nature of the issued token bears significant importance for investors. There are three commonly used tokens: the user, the debt, and equity tokens. Networks can choose their preferred type of tokens, depending on which token best fits their purpose. For instance, Steemit has adopted all of the above mentioned three types of tokens.

User tokens, which are commonly referred to as appcoins, serve as means to access a service offered by the distributor network. The user tokens are acquired as means of a reward for the value being provided to the network.19 By way of example, contributions can consist of the work done by miners; it can also be seen in the developed decentralised storage platform of Sia, where users are able to contribute disk storage from their computers to form a decentralised network.

Sia functions by allowing anyone with Siacoins to rent storage from this network, and hosts are in turn paid for their contribution.20 A token which directly finances the development of a network is the equity token. Equity tokens are those tokens which can be considered as being shares of the network. The dividends which token 18

Aviad Gindi, ‘Blockchain ICO’s – The New Era of Crowdfunding is Here’ [2017] 0 ICO Crowd 48, 48-49 <https://issuu.com/icocrowd/docs/ico_crowd_-_issuu/28> accessed 31 October 2017.

19

Demian Brener, ‘On Tokens and Crowdsales: How Startups Are Using Blockchain to Raise Capital’ (CoinDesk, 20 August 2016) <https://www.coindesk.com/tokens-crowdsales-startups/> accessed 31 October 2017.

20

‘Sia Coin Explained’ (Steemit, 6 March 2017) <https://steemit.com/siacoin/@twiligtsparkle/ sia-coin-explained> accessed 31 October 2017.

181

ID - DRITT

holders will receive consist of revenue profit generated or transaction fees in the network. DAO’sare generally key players, since equity tokens are commonly shares in such organisation. This can be seen in ICOs such as, Peerplays, which promises a percentage of the revenues of the project to the token holders. The latter kind of tokens are becoming more popular since they are giving funders a tangible ‘return on their investment’.21 In the past few months, the most successful ICOs in Canada have stimulated the launch the Ethereum platform. Since Ethereum generates tokens, Ethereum based ICOs can also be referred to as a Token Generation Event.

3.4 Concerns surrounding ICO’s A recurring concern surrounding this development of early-stage projects is the prospect of encountering scam ICOs. The huge sums raised through ICOs are enough of a temptation or cause for concern, depending on the point of view. Traditional investments have always been based on clear and thorough present and expectant plans; this is not always the case with ICOs, which adds to the risky nature of this business. Investors who are willing to take the leap must be prepared to either lose it all or make gains out of it. A problem generally motivates a solution. Dishonest ICOs may be caught out by having more information being made available to investors, allowing them to assess whether an ICO is actually a scam or a promising venture.22 Another concern is that these ICOs are attracting investment by people that have made their fortune through proceeds of crime and are making use of these ICOs as vehicles to launder money.

On 6 July 2017, the Malta Financial Intelligence Analysis Unit published for consultation a revised version of the Prevention of Mon21

Brener (n 20).

22

Helen Disney, ‘Navigating the Initial Coin Offering Minefield’ [2017] 0 ICO Crowd 28, 28-29 <https://issuu.com/icocrowd/docs/ico_crowd_-_issuu/28> accessed 31 October 2017.

182

VOLUME XXVIIII

ey Laundering and Funding of Terrorism Regulations.23 The revised version of the PMLFTR aims to substitute the current PMLFTR in its entirety and consequently, transpose into Maltese law numerous provisions of the Fourth Anti-Money Laundering Directive.24 The European Parliament and the Council published the 4th AMLD in light of the new recommendations of the Financial Action Task Force.25 Prior to taking on a customer, the subject person must determine whether Simplified Due Diligence, Customer Due Diligence26 or Enhanced Due Diligence should apply. From an operational standpoint, a risk-based approach to customer due diligence and other AML/CFT controls will become compulsory. Subject persons will be obliged to carry out a risk assessment to identify the ML/FT risks they are exposed to and to model their AML/CFT controls on the basis of such assessments while ensuring that their application in each individual case is also risk-based.

Presently both the 4th AML Directive and the latest proposed Malta PMLFTRs do not cover cryptocurrencies or cryptocurrencies exchange platforms. The proposed PMLFTRs define ‘Customer’ as: A legal or natural person who seeks to form, or who has formed a business relationship, or seeks to carry out an occasional transaction with a person who is acting in the course of either relevant financial business or relevant activity. 27 The proposed PMLFTRs define subject persons ‘as any legal or natural person carrying out either relevant financial business or relevant 23

Hereinafter referred to as the PMLFTR.

24

Hereinafter referred to as the 4th AMLD.

25

Financial Intelligence Analysis Unit, Malta, ‘Prevention of Money Laundering and Funding of Terrorism Regulations’ (Consultation Document, 2017) 2 <http://www.fiumalta.org/library/ PDF/legislation/Consultation%20Document%20PMLFTR%202017.pdf> accessed 4 November 2017.

26

Hereinafter referred to as CDD.

27

ibid 4.

183

ID - DRITT

activity.’28 Thus, as long ICO promoters do not trade in goods where a transaction involves payment in cash in an amount equal to ten thousand euro (€10,000) or more whether the transaction is carried out in a single operation or in several operations which appear to be linked, ICO promoters would not fall under the definition of ‘relevant financial business’ and neither would their activity fall under the definition of ‘relevant financial activity’. 29 The only time when CDD needs to be applied under our laws is when there is an occasional transaction or business relationship. But an occasional transaction or business relationship require the involvement of a subject person. Thus, if the ICO Promotors are not classified as a subject person, then CDD never needs to be carried out.

In the European Commission’s Proposal for a Directive to amend the 4th AML Directive (EU) 2015/849 it was found essential to extend the scope of Directive (EU) 2015/849 so as to include virtual currency exchange platforms and custodian wallet providers. Competent authorities should be able to monitor the use of virtual currencies.

Therefore, the definition of ‘Obliged Entities’ falling under the scope of the 4th AML Directive was proposed to be extended to: • Providers engaged primarily and professionally in exchange services between virtual currencies and fiat currencies; • Wallet providers offering custodial services of credentials necessary to access virtual currencies.30 These entities will have to apply CDD controls when exchanging virtual for real currencies, ending the anonymity associated with such exchanges. For clarity’s sake, in the proposed amendments to the 4th AMLD, ‘Virtual Currencies’ are defined as ‘a digital representation of 28

ibid.

29

ibid 5,7 and 9.

30

Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending Directive 2009/101/EC COM(2016) 450 final 12.

184

VOLUME XXVIIII

value that is neither issued by a central bank or a public authority, nor necessarily attached to a fiat currency, but is accepted by natural or legal persons as a means of payment and can be transferred, stored or traded electronically.’31 Furthermore, another proposal goes on to state: Member States shall ensure that providers of exchanging services between virtual currencies and fiat currencies, custodian wallet providers, currency exchange and cheque cashing offices, and trust or company service providers are licensed or registered, and that providers of gambling services are regulated.32 The aforementioned proposed amendments to the 4th AMLD are still being revised for any further counter-proposal or approval between the EU Parliament and the European Council. It could take a number of months before an agreement is reached between the EU Parliament and the European Council. However, the said proposals in relation to virtual currencies are not the sticking points between Member States, and therefore, it is anticipated that they will be transposed into Maltese law, sooner rather than later. It is advised that ICO promoters should begin preparations to make sure that they do not fall foul to the proposed amendments of the 4th AMLD. Of course, notwithstanding all of the above, from a practical point of view it is always advisable to hold at least a basic KYC on the investors. This would surely make it easier to convert the cryptocurrencies raised into Fiat currency and be able to deposit such Fiat currency into a bank account.

4. Prospective regulations in e-Commerce Blockchain technology, including ICOs themselves, are becom31

ibid article 1(ad)(c).

32

ibid article 1 (3)(b).

185

ID - DRITT

ing the subject of legal and regulatory scrutiny. While the absence of regulations may be advantageous for certain investors who intend to invest low funds and potentially yield thousands in a matter of days or weeks, leaving this sphere largely free from official scrutiny has its downsides. Eventually, the parties involved in ICOs would also have to watch out for compliance.33 The sphere is still a grey area for regulators, and it is unclear how ICO investments will eventually be treated under domestic and international law. The significant potential of cryptocurrencies means that governments who embrace ICO tokens first will win big. Currently, Switzerland, Korea, and Japan are set on benefitting from cryptocurrencies and related projects due to their business friendly approach in the matter.34 In 2014, the Monetary Authority of Singapore had already provided for guidance on the creation of tokens. The inherent unstable nature of ICOs will have to be addressed, and some Governments have already started the race. This can indeed be considered as a competition between Governments as they fight to make their way to the top. Adopting a promising regulatory scheme which recognises and embraces new technology and operations will undeniably attract entrepreneurs and businessmen alike and will certainly increase capital value into their countries.35 Due to the fact that Blockchain platforms operate without borders, operators must ensure that ICOs are structured in a way that they are compliant with any regulations applicable in different jurisdictions.

The same applies to participants and service providers. Thus, in structuring an ICO, not only should the regulations applicable to where the ICO is taking place be observed, but operators and participants alike should be mindful of the ICOs extra-territorial effect.

The laws governing the issuance and sale of tokens depend on the 33

Disney (n 24).

34

Tim Draper, ‘ICOs Connect the World’ [2017] 0 ICO Crowd 33, 34-35 <https://issuu.com/ icocrowd/docs/ico_crowd_-_issuu/35> accessed 5 November 2017.

35

Guardia (n 17).

186

VOLUME XXVIIII

jurisdictions in which these events take place. On this basis, the status of cryptocurrencies varies from one country to another. For instance, in Switzerland, they are not considered securities or legal tenders; however in the United States, a more rigid approach is adopted. A report published by the Securities and Exchange Commission36 on 25 July 2017, established the U.S. as standing in this field.

An official statement by the US Securities and Exchange Commission37 has detailed the criteria on which a token can be classified as a security. The very existence of a test implies that not all ICO issued tokens constitute securities. The term ‘security’ has been given a flexible definition in order to fit in any scheme adopted by those who utilise the money of others on the promise of profits. The test which is generally resorted to for the classification of security is the ‘Howey Test’, which emerges from a well-known judgement of the Supreme Court.38 In its analysis, the SEC officially qualified tokens issued by the first DAO, back in 2016, as securities. From this follows that, any tokens which are considered to be securities must be registered with the Commission. Registration entails the full and fair disclosure of the issuer’s financial condition, the identity and background of management, and the price and amount of securities to be offered. The registration requirements serve as procedural protections to the investors, and provide the necessary material information required to make better informed investment decisions.39 Tokens sold in ICOs which are not likely to be classified as securities are those which are more similar to virtual products, rather than promoting an investment plan. The former includes user tokens, 36

Hereinafter referred to as the Commission.

37

Hereinafter referred to as SEC.

38

Haonan Lin, ‘Future of ICOs, SEC verdict, and the Howey Test’ (Crypto Insider, 3 August 2017) <https://cryptoinsider.21mil.com/sec-verdict-ico-howey-test/ > accessed 5 November 2017.

39

Alan Cohn, ‘SEC Begins Offering Guidance on Initial Coin Offerings’ (Steptoe Blockchain Blog, 27 July 2017) < http://www.steptoeblockchainblog.com/2017/07/sec-begins-offering-guidance-on-initial-coin-offerings/> accessed 5 November 2017.

187

ID - DRITT

which as aforementioned serve as means to access a network. In its decisions, the SEC does not seem to be preventing ICOs but rather seeks to regulate the market and protect vulnerable customers.40 The unregulated industry of ICOs does in fact allow scammers to prey upon unsophisticated and gullible investors.

Recently, Japan has declared Bitcoin as legal tender, making it the first country to do so.41 Following in its footsteps, representatives of Australia’s centre and left-leaning political parties are also pushing towards the recognition of Bitcoin as an official currency in Australia.42 In the U.S., the General Services Agency, under consideration of the federal government, has drawn up a list of the possible projects and applications which could be used by way of Blockchain technology.

Russian President Vladimir Putin’s advisor is in the process of raising as much as $100 million in an ICO with the aim of funding a ‘Russian Mining Company’ project.

Also, Thailand’s largest commercial bank, Kasikorn Bank, has showed interest in digitalising its financial contracts through an IBM Blockchain network.43 The Indian government has concluded propositions regulating cryptocurrencies.44 In fact, the Securities and Exchange Board of India has unveiled an advisory committee which will specifically focus on the Blockchain technology research and any related or similar projects.

40

Lin (n 38).

41

Nathan Reiff, ‘Japan Finally Recognizes Bitcoin After Long Battle’ (Investopedia, 3 April 2017) <http://www.investopedia.com/news/japan-finally-recognizes-bitcoin-after-long-battle/> accessed 5 November 2017.

42

Kevin Helms, ‘Australian Senators Push to Make Bitcoin Official Currency’ (Bitcoin News, 8 August 2017) <https://news.bitcoin.com/australian-senators-reserve-bank-bitcoin-official-currency/> accessed 5 November 2017.

43

Wolfie Zhao, ‘Thailand’s KBank to Start Digitizing Contracts With Blockchain by 2018’ (Coindesk, 8 August 2017) <https://www.coindesk.com/thailands-kbank-start-digitizing-contracts-blockchain-2018/> accessed 5 November 2017.

44

Wolfie Zhao, ‘India Close To Finishing Work On Cryptocurrency Rule Proposals’ (Coindesk, 8 August 2017) <https://www.coindesk.com/india-close-finishing-work-cryptocurrency-rule-proposals/> accessed 5 November 2017.

188

VOLUME XXVIIII

In July 2017, the Brazilian Comissão de Valores Mobiliários45 addressed the equity crowdfunding platforms. The new regulation which has been introduced caters for increased transparency and reliability in investments done over such platforms. Notable changes include the legal incorporation of Equity crowdfunding platforms in Brazil, registration with the CVM and authorisation from the same to be able to conduct their businesses.46

5. Malta’s approach Having a pioneering policy regulating ICOs in Malta would attract a great number of Blockchain start-up businesses and investors. We should aim at finding an innovative way to grant permits for ICOs without requiring the start-ups to obtain a cumbersome and overly expensive financial services licence.

Such policy will benefit Malta especially since, to date, no jurisdiction has engaged in implementing policies in this evolving sector.

This can be achieved by building honest, transparent, and efficient frameworks. Although EU law is evolving with regards to its Capital Market Union, there has been no regulatory guidance just as yet.47 However, Malta should take the initiative and promulgate such policy which will, in the long run, serve as a guide to other jurisdictions.

This need to regulate ICOs stems from the pressing issue of lack of transparency in the process and issuance of coins or tokens, which could pose significant risks on issuers and investors. The virtual nature of the ICO could serve as a breeding ground for money laundering activities, which is a cause of concern for regulators and genuine start-ups alike, especially as cryptocurrencies are growing more visi45

Hereinafter referred to as CVM.

46

JD Alois, ‘Crowdfunding is Now Regulated in Brazil’ (Crowdfund Insider, 6 August 2017) <https://www.crowdfundinsider.com/2017/08/120323-crowdfunding-now-regulated-brazil/> accessed 5 November 2017.

47

Jacek Czarnecki, ‘ICOs in the EU: How Will the ‘Slow Giant’ Regulate Tokens?’ (Coindesk, 24 July 2017) <https://www.coindesk.com/icos-eu-will-slow-giant-regulate-tokens/> accessed 5 November 2017.

189

ID - DRITT

ble and valuable. The involved parties, especially investors, need protection from deceitful start-ups, as they attempt to generate revenue from their scam projects. As a matter of fact, some projects have been outright scams which have been virtually free from any type of official scrutiny.48 While scammers are a threat to ICOs and the general benefits of Blockchain technology, excessive regulation of this area may not necessarily benefit cryptocurrencies. Traditional sectors, particularly in the banking and finance spheres, will have to decide whether to welcome or oppose this space.49 However, serious start-ups are able to create great projects because of ICOs. Furthermore, investors can invest their capital in a way that may be more profitable than traditional investment means. Many a times, companies set a minimum funding goal and if the goal is not met, the funds are normally returned to the investor. This ensures that at least a minimum amount of funds is raised.50 Due to the multimillion-dollar sales generated by ICOs, organisers of these crowdfunding events are seeking jurisdictions that could provide legal certainty. Issuers of ICOs find themselves in a precarious position, especially when the consumer is also being exposed to high risks. By stepping into this grey area, Malta can seek to provide operational certainty for all participants and facilitate efficient markets.

Maltese Prime Minister Joseph Muscat has held that Malta must be on the forefront of embracing Blockchain and Bitcoin. However, the current situation in Malta is that, whilst the Government is continuously encouraging proposed frameworks related to the adoption of Blockchain technology, the MFSA is continuously pinpointing the 48

Sterlin Lujan, ‘SEC Eyes Initial Coin Offerings for Regulatory Oversight’ (Bitcoin News, 16 June 2017) < https://news.bitcoin.com/sec-eyes-initial-coin-offerings-for-regulatory-oversight/> 49

Matt Armstrong, ‘Value, Utility and Trust’ [2017] 0 ICO Crowd 50, 52-53 <https://issuu.com/ icocrowd/docs/ico_crowd_-_issuu/5> accessed 5 November 2017.

Antony Lewis, ‘A gentle introduction to Initial Coin Offerings’ (Bits on Blocks, 25 April 2017) <https://bitsonblocks.net/2017/04/25/a-gentle-introduction-to-initial-coin-offerings-icos/> accessed 5 November 2017/ 50

190

VOLUME XXVIIII

disadvantages of cryptocurrencies. Thus, the Government is ushering in the idea of a new digital age whilst conversely the MFSA is trying its best to shed away any appealing characteristics. This inconsistency has been recently present in discussions concerning Bitcoin Teller Machines (BTM).

6. Conclusion Blockchain technology is starting to have an increased presence, while at the same time cryptocurrencies are becoming more commonly accepted. This has created a perfect niche for developers, economists, marketers, and entrepreneurs, who seek to be innovative and showcase their various innovative approaches.

Each ICO is exposing new ways and methods of using the Blockchain technology, which creates a ripple effect driving other professionals to build and further develop other ideas. It is going to re-architect the entire web, creating countless decentralised applications.

Traditional methods for development are met with barriers, or the need for support from venture capitalists, which the Blockchain environment is able to bypass.

While a Blockchain revolution might be in the works and will transform the functioning of various sectors, as it stands, an outsider might still be sceptic about this innovative technology. Blockchain technology might be unknown or otherwise too complex for the general public to properly grasp, and willingness to invest in cryptocurrencies might subsequently be lacking. A lack of drive to steer away from centralisation and mainstream thoughts might be a hurdle which is to be expected, yet the potential for ICO is certainly thriving at a rapid pace.

This new digital age and Blockchain technology will definitely impact numerous legislative regimes. At the forefront of this will be tax, securities legislation, and anti-money laundering legislation. Certainly one must not underestimate the potential impact on contract law, 191

ID - DRITT

especially with the adoption of smart contracts, and laws regulating consumer protection, keeping in mind that the main objectives of Blockchain technology is to provide transparency, privacy, anonymity, efficiency and security to all its users, be it businesses or consumers. The blockchain will bring about the Fourth Revolution, and will build upon the Internet to truly connect people across the globe in an unprecedented manner.

192

Data Protection Law

Consent in light of the General Data Protection Regulation Sharon Xuereb, Terence Cassar Sharon Xuereb is a Senior Associate at Camilleri Preziosi. Sharon’s main practice areas are Media and Communications Law, laws on Intellectual Property, Information Technology and Privacy Law. She also forms part of the firm’s litigation team. Sharon retains interests in Cyberspace Law, Computer Law, Electronic Commerce, and the regulation of Online Gaming and Betting. In partial fulfilment of her LL.M, which she’s currently doing at the Queen Mary University of London, Sharon submitted a thesis on the regulation of online gaming and betting entitled “Legal Protection of State Monopolies over Online Gaming: Terence Cassar is an Associate at Camilleri Preziosi. Terence practices primarily in the areas of intellectual property, remote gaming, data protection, media, telecoms and technology law and forms part of the firm’s Blockchain Taskforce set up by Camilleri Preziosi to study the technology and its potential application to the firm’s practice areas. Terence graduated as Doctor of Laws from the University of Malta in 2015, and is currently furthering his education by undertaking an LL.M. at the University of Stratchlyde, Glasgow with specialism in Internet Law & Policy.

VOLUME XXVIIII

It is to be noted that this article has been written throughout August 2017. By the time of publication of this article, namely in and around May 2018 (which happens to also coincide with the coming into effect of the General Data Protection Regulation), it is expected that there may be further material or guidance issued by law makers, regulators, data protection authorities (inclusive of Malta’s Office of the Information and Data Protection Commissioner) and the Courts, all of which may have an effect on the views expressed in this article. In particular it is expected that by May 2018 further guidance will be issued by the Article 29 Working Party given that guidance on ‘consent’ has been earmarked as one of the Working Party’s priorities for 2017.1

1. Introduction 1.1 The GDPR

T

he General Data Protection Regulation2 (’GDPR’) is the latest legal development in the increasing recognition of the value and importance of personal data. Whilst the information economy has now been in existence for quite some time, its real value has, more recently, become widely evident with the rise of big data analysis techniques, profiling, mining, and monetising of personal data, and with the greater potential risks that one may be exposed to via cyber-theft and misuse of personal data. Together with rapid technological advancements and globalisation, this has led to the promulgation of the GDPR by the European Parliament and the Council of Europe. Its aim is to enhance the protection of natural persons with regard to the processing and 1

European Commission Press Release, ‘Adoption of GDPR Action Plan’, 16 January 2017.

2

Council Regulation 2016/679 of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data [2016] OJ 119/1.

195

ID - DRITT

free movement of personal data.3 The changes which will be introduced by the GDPR on the 25th of May 2018 are substantial and ambitious.4 The GDPR is one of the widest ranging pieces of legislation enacted by the EU in recent years and the concepts which will be introduced, will need to be accustomed.5 Achieving a high level of harmonization within the EU in regard to data protection, is one of the main goals of the GDPR. As opposed to the current European data protection framework established under the Data Protection Directive6 , which dates back to 1995, the GDPR was promulgated as a Regulation. This piece of legislation is therefore directly applicable in Member States’ laws. Furthermore, its impact will not be limited to European entities. All entities - wherever registered, incorporated or established - that process personal data of European data subjects, will be affected by the GDPR and must comply with this law.7 Whilst this article will focus exclusively on the changes in regard to consent from data subjects, it should be noted that the GDPR will introduce numerous other wide-ranging changes into existing data protection law and practices. These mainly include (and are not limited to): 1. Enhanced rights for data subjects (the right to be forgotten, the right to data portability, and the right to object to automated decision making); 2. The concept of data protection by design and default; 3. Accountability principles and obligations; 4. Personal data breach notification obligation; 5. Exorbitant fines for non-compliance; 3

Ibid, recitals 6 and 7.

4

Bird and Bird, ‘Guide to the General Data Protection Regulation’,(May 2017), https://www. twobirds.com/~/media/pdfs/gdpr-pdfs/bird--bird--guide-to-the-general-data-protection-regulation.pdf?la=en accessed 22 August 2017.

5

Ibid.

6

Hereinafter referred to as ‘DPD’. Council Directive 95/46/EC of 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281.

7

Council Regulation 2016/679 (n 2) Article 3.

196

VOLUME XXVIIII

6. An expanded meaning of the terms ‘personal data’ and ‘sensitive personal data’; and 7. The establishment of the European Data Protection Board.

1.2 Changes in Relation to Data Subject Consent Amongst the cornerstones of the GDPR, one finds changes in the requirements for obtainment of consent from the data subjects for the processing of their personal data. Strict conditions are introduced by the GDPR to ensure that consent is fairly and validly gained and that there is no abuse in the processing.

Unlike the DPD (which has been transposed nearly ad verbatim into Malta’s Data Protection Act8), the GDPR has for the first time, defined the meaning of ‘consent’.9 In this respect, the GDPR provides that the term ‘data subject consent’ means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.’10 Ensuring that the processing is lawful and, where necessary, the data subject’s consent is acquired for that processing operation, will be one of the more crucial aspects for successful compliance with the GDPR. The data controller, being the entity that collects personal data from data subjects, is responsible to adhere to the consent criteria under the GDPR (note that in this regard, the situation under the DPD is identical). Failure to do so may cost a data controller a fine of up to €20 million or 4% of annual global revenue, whichever is the 8

Data Protection Act Chapter 440 of the Laws of Malta.

9

It is to be noted that Article 2 of Malta’s Data Protection Act already contains a definition which is similar to the meaning attributed by the GDPR. 10

Council Regulation 2016/679 (n 2) Article 4, clause 11.

197

ID - DRITT

higher.11 This is evidently a considerably higher administrative fine than the current maximum fine of €23,330 under Maltese law.12 In practice obtaining the data subject’s consent to the processing of personal data is one of the simplest ways to ensure that the processing is lawful. Many restrictions as to what can be done with personal data can be bypassed, provided that the data subject’s consent has been validly and appropriately acquired for the purpose of that data processing operation.13 Having said this, consent is not a requirement for all data processing operations. It is therefore essential that a data controller understands his duties in attaining consent, the data subject’s rights in relation to consent, and the processes in virtue of which, both the controller’s interests may be satisfied and the data subject’s rights may be safeguarded.

2. Basics There is a proliferation of terms and nomenclature used in the GDPR that may appear opaque on a first reading. In view of this, before actually delving into the specificities of the subject-matter at hand, this article will provide an introduction into the key definitions under the GDPR. 1. ’personal data’: any data which render a person identifiable.

2. ’data subject’: the person in regard to whom the personal data relate.

3. ‘processing’: any operation which makes use of personal data.

4. ’data controller’ (or ’controller’): the person or legal entity who collects personal data from the data subject, 11

Council Regulation 2016/679 (n 2) Article 83.

12

Data Protection Act (n 9) Article 41B(4).It is to be noted that imprisonment of up to six months is also currently in place.

13

The IT Governance Privacy Team, EU General Data Protection Regulation (GDPR) – An Implementation and Compliance Guide (1st edn, IT Governance Publishing 2016) 183.

198

VOLUME XXVIIII

and who determines the purposes and means of processing of that data.

5. ’processor’: the person or legal entity who processes personal data on behalf of and on the instructions of the controller.

Furthermore, the GDPR lists six principles relating to the processing of personal data (which are also broadly similar, albeit not identical, to the principles under the DPD14).15 These principles are a crucial theme underlying the GDPR in general, as well as the changes in place specifically relating to consent. These privacy principles provide that the personal data must be:

1. Processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness, and transparency’);16 2. Collected for specified, explicit, and legitimate purposes and not further processed in a manner that is incompatible with those purposes (‘purpose limitation’);17 3. Adequate, relevant, and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);18 4. Accurate

and

kept

up

to

date

(‘accuracy’);19

5. Kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which 14

Council Directive 95/46/EC (n 6) Article 6, clause 1.

15

Council Regulation 2016/679 (n 2) Article 5, clause 1.

16

Council Regulation 2016/679 clause 1 (a).

17

Council Regulation 2016/679 clause 1 (b).

18

Council Regulation 2016/679 clause 1 (c).

19

Council Regulation 2016/679 clause 1 (d).

199

ID - DRITT

the personal data are processed (‘storage limitation’);20 and 6. Processed in a manner that ensures appropriate security, using appropriate technical or organisational measures (‘integrity and confidentiality’).21

3. Consent Validity Conditions 3.1 Freely Given Fair and lawful processing necessitates that the data subject’s consent is ’freely given’. When consent of the data subject is requested, a data controller must ensure that the data subject is allowed the option to refuse to provide that consent. It is also incumbent on the data controller to ensure that the data subject will not be penalised for refusing to provide consent, and that the refusal will not be detrimental to the data subject.22 Otherwise, the consent cannot be considered to have been ’freely given’.23 In view of the above there are various situations, especially involving public authorities, where the obtainment of consent cannot be considered to have been freely given. For example, upon making an arrest of a suspected criminal, the police request the suspect’s identification details. Such a suspected criminal cannot refuse to provide his identification details (it would be an offence to do so) and accordingly, the police should not rely on the data subject’s consent as a ground for justifying the processing of that suspect’s identification details. In these circumstances, consent cannot be considered to be ’freely given’ as an option to refuse giving consent would not have been afforded to the data subject (whilst refusing to give the consent 20

Council Regulation 2016/679 clause 1 (e).

21

Council Regulation 2016/679 clause 1 (f).

22

Freely withdrawing consent is also linked with the consent being “freely given”. However, this will be discussed separately and in further detail under heading 7 Consent and the Concept of “Control” hereof.

23

Council Regulation 2016/679 (n 2) recital 42.

200

VOLUME XXVIIII

would result in an offence). In this example, the processing operation would be appropriately and adequately justified under the ground that processing is necessary for the performance of a task carried out in the public interest or in the exercise of the official authority vested in the police.24 In regard to the above, the recitals to the GDPR elaborate further in providing that: In order to ensure that consent is freely given, consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller, in particular where the controller is a public authority and it is therefore unlikely that consent was freely given in all the circumstances of that specific situation 25 (emphasis added by the authors).

There are also situations in the private sphere in which there can be a clear imbalance between the data subject and the controller and which, as a result, would lead to the consent not being considered as freely given under the GDPR. An example in this regard would be the situation faced by an employer and an employee, or prospective employee. Without the minimum details necessary for recruitment, the employer would not be in a position to employ the said individual.

Likewise, the employee has no option other than to provide their details; a potential employee cannot reasonably expect to be employed if they refuse to provide their name, surname, bank account number, or similar personal details. Accordingly, a clear imbalance exists between the employee and the employer, in which it can be said that the employer is in a position of power vis-à-vis the employee.

In regard to said employee to employer imbalance, the Article 29 Data Protection Working Party clarified that for the majority of data processing at work, the legal basis cannot and should not be consent of the employee due to the nature of the relationship between 24

Council Regulation 2016/679 (n 2) Article 6.

25

Council Regulation 2016/679 (n 2) recital 43.

201

ID - DRITT

employer and employee.26 Instead, most processing at work may be justified by the employer on the basis of performance of:27 1. The employment contract;28 2. A legal obligation imposed on the employer;29or 3. That the processing is necessary for the purposes of the legitimate interests pursued by the employer.

Where the processing is based on the employment contract or a legal obligation, then the processing must be limited to that which is necessary for the purposes of the contract or to satisfy legal obligation; or that which may logically follow from the contract or whilst adhering to a legal obligation. In regard to processing on the basis of a legitimate interest, an individual assessment should be made of each such data processing operation in order to determine whether the legitimate interests pursued by the employer (as the controller in this context) override the interests of fundamental rights and freedoms of the data subject.30 Other grounds on the basis of which the processing may be justified could also potentially be employed.31 However, the grounds indicated above are the most typical grounds under which an employer would justify their processing activities. Organizations should choose the lawful basis that reflects the true nature of its relationship with the individual and the purpose of that processing.32 26

Opinion 2/2017 on Data Processing at Work, adopted on 8 June 2017, page 6.

27

Ibid.

28

That is, on the basis of article 6, clause 1 (b) of the GDPR.

29

That is, on the basis of article 6, clause 1 (c).

30

Council Regulation 2016/679 Article 7, clause 4.

31

Dechert LLP – Paul Kavanagh, Madeleine White and Jennifer McGrandle, ‘Consent under the General Data Protection Regulation: what are the alternatives for employers?’

(Lexology, 22 August 2017)<https://www.lexology.com/library/detail.aspx?g=f1c7220195a0-4296-bf52-4a497e1874f7&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2017-08-23&utm_term=> accessed 17 August 2017.

32

Ibid.

202

VOLUME XXVIIII

Further to the above, when assessing whether consent is freely given, the data controller should take utmost account of whether the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.33 In this regard, the consent is presumed not to be freely given if:

‘It does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance’.34 If the provision of a contract or service is subject to consent for the controller’s processing operations, which are not related to the purpose for which consent is being granted, the consent cannot be considered to be freely given. In this circumstance, the data subject would not have the option to consent to a non-related data processing operation in order to attain the desired service or enter into the desired contract.

The above presumptions that consent is not ’freely given’ link to the data processing principles underlying the general spirit of the GDPR, specifically, the principles of data minimisation: no more data should be collected other than as strictly necessary for that processing; nor should consent for an individual processing operation (where appropriate), or the performance of a contract, or provision of a service, be dependent on consent for the collection and processing of personal data that is not necessary for that purpose.35

33

Council Regulation 2016/679 (n 2) Article 7, clause 4.

34

Council Regulation 2016/679 (n 2) reictal 43.

35

Council Regulation 2016/679 (n 2) Article 25. In this respect, the reader is invited to read further on the novel GDPR concept of data protection by design and by default – an interlinked concept which within the strictures of this writing it is not possible to elaborate further thereon.

203

ID - DRITT

3.2 Specific & Informed Data subject consent must also be ’specific’ and ’informed’; two conditions which are very closely intertwined.

Consent is ’specific’ when it shows the exact purpose of the processing for which it has been granted. At the same time, data subjects cannot consent to a processing activity if they have not been adequately informed of what they would be consenting to. Accordingly, the GDPR also imposes on controllers an obligation to take appropriate measures to inform data subjects about the processing of personal data in a concise, transparent, intelligible, and easily accessible form, using clear and simple language (in particular, if any information is addressed specifically to a child).36 Furthermore, consent should cover all processing activities carried out for the same purpose or purposes.

When the processing has multiple purposes, consent should be acquired for all of them.37 Accordingly, consent must be distinguishable, clear, and not ’bundled’ with other written instruments or declarations.

In the vast majority of cases, personal data is collected from a data subject by providing to the data subject a written form containing the consent wording itself for his or her approval. As a result, the wording of the consent must not be misleading and it must clearly indicate that the data subject is actually giving consent for the processing.

This also reflects the requirements of ‘transparency’ and ‘fairness’ of the first data processing principle elaborated above. Data processing on the basis of consent cannot be considered ‘transparent’ and ‘fair’ if the data subject has not been properly informed of and consented to all purposes for which the personal data will be processed.

Equally, the data controller cannot ’hide’ a processing operation behind the guise of another for which consent would have been collected.38 This would be contrary to the requirement for ’specific and 36

Council Regulation 2016/679 (n 2) Article 12, clause 1.

37

Council Regulation 2016/679 (n 2) recital 32.

38

Council Regulation 2016/679 (n 2) Article 5, clause 1 (b).

204

VOLUME XXVIIII

informed’ consent, and, in general, it would fail on the basis of the purpose limitation and transparency obligations. Having said this, permissible processing is not strictly limited to the purpose for which consent has been attained ad verbatim. Any further processing for a purpose which logically follows from that consent would be acceptable. For example, an online retailer that requests the data subject’s details in order to set up an account, does not need to specify that such details will be used to deliver to the customer the goods purchased by using said account – such purpose would logically follow from the setting up of an account for the purpose of purchasing goods from an online retailer (and would in any case be justified under the general ground for processing to fulfill a contract).39 In this example, consent for setting up the account would suffice.40

3.3 An Act Indicating the Data Subject’s Wishes The consent must also result from an unambiguous indication of the data subject’s wishes by which the data subject, by a statement or by a clear affirmative action, signifies agreement to the processing.

That the consent should be ’unambiguous’ means that it should leave no doubt as to the data subject’s intentions in providing the consent.

An ‘affirmative action’ requires that the data subject ‘does something’ – generally referred to as ‘opt-in’. Accordingly, inaction cannot lead to consent. The GDPR also clarifies that the action required to signify consent can be given in the context of a written statement, including by electronic means, or in the context of an oral one.41 In the context of a written statement (whether online or on paper), a signature (both digital and hand-written) would be considered acceptable affirmative actions. The GDPR also clarifies that ‘ticking boxes’ would constitute an acceptable method of obtaining consent.42 39

IT Governance Privacy Team (n13) page 185.

40

Ibid.

41

Council Regulation 2016/679 (n 2) Recital 32.

42

Council Regulation 2016/679 (n 2) Recital 32.

205

ID - DRITT

The GDPR also provides that choosing technical settings for information society services43 is an acceptable method of obtaining consent.44 An affirmative action in the oral context, would require that the data subject signifies his consent through a spoken statement (such as ‘I agree’ or statements similar thereto in virtue of which consent is signified). In view of the above, silence, pre-ticked boxes or inactivity cannot constitute valid consent.

4. Child’s Consent The GDPR recognizes that children merit enhanced protection as they may be less aware of the risks, consequences, and safeguards concerned, and their rights in relation to the processing of personal data.45 Whilst the importance of protecting children is mentioned several times throughout the GDPR, the requirements related to children’s consent apply in the context of information society services.

‘Information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.46 If the processing of a child’s personal data in relation to information society services is being based on consent, that processing is lawful where the child is, at least, 16 years old.47 Where the child is younger, the processing is only lawful if consent is given by the holder of parental responsibility over the child.48 Parental consent is therefore required for children to consent to commercial contracts online. Even though the consent will in such cases be formally given by an adult, the language used in any information and communication addressed to a child should be 43

Please refer to Child’s Consent for the meaning of ‘information society services’.

44

Council Regulation 2016/679 (n 2) Recital 32.

45

Council Regulation 2016/679 (n 2) Recital 38.

46

Directive 2015/1535/EU, of 9 September 2015, laying down the procedure for the provision of information in the field of technical regulations and of rules on Information Society Services, Article 1, clause 1 (b).

47

Council Regulation 2016/679 (n 2) Article 8, clause 1(b).

48

Council Regulation 2016/679 (n 2) Article 8, clause 1(b).

206

VOLUME XXVIIII

clear and plain enough for the child to understand.49 With regard to the age limits of child consent, the GDPR somewhat fails, in its ultimate attempt of harmonising data protection practices. It permits Member States to provide for an age of consent as low as 13 years.50 Entities operating across multiple countries should be aware of this and adapt their processes to deal with any possible such discrepancies. The GDPR also obliges data controllers to make reasonable efforts in order to verify the granting of parental consent, taking into consideration available technology;51 controllers should demonstrate compliance with this obligation. However, the GDPR falls short of elaborating on how this obligation should be satisfied. In practice it is likely that implementing parental consent may be quite challenging.

Checking a box confirming that the parent has agreed to the processing is not, in the authors’ view, acceptable under the GDPR, since one cannot ensure that it is truly the parent who is consenting. On the other hand, confirming parental consent via a registered letter, requiring a signed letter or even a logged telephone call, could all be reasonable efforts in verifying the parental consent.

5. Processing Special Categories of Personal Data & Personal Data Relating to Convictions and Offences Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership; and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person’s sex life or sexual orientation, is, as a general rule, prohibited.52 However there are specific 49

Council Regulations 2016/679 (n 2) Recital 58.

50

Council Regulation 2016/679 (n 2) Article 8, clause 1.

51

Council Regulation 2016/679 (n 2) Article 8, clause 2.

52

Council Regulation 2016/679 (n 2) Article 9, clause 1.

207

ID - DRITT

exemptions, broadly based on the protection of public good or the protection of the data subject, where processing of these special categories of personal data may be undertaken.53 The GDPR provides that processing such personal data is possible, provided that the data subject has given his explicit consent for one or more specified purposes, except where national or EU law provide that the prohibition of processing this kind of data may not be lifted via the consent of the data subject.54 Essentially, this means that whilst if the required consent is acquired, these categories of personal data may still be processed unless there is a specific national or EU law which provides a direct ban against the data subject from being able to give his consent to such processing.

On the contrary, the GDPR provides that processing relating to criminal convictions, offences or related security measures may only be carried out under the control of an official authority, or when the processing is specifically authorised by EU or national law providing appropriate safeguards for the rights and freedoms of data subjects.55 There is no room for private or commercial processing of personal data relating to criminal convictions or offences under the GDPR and accordingly, an official capacity will be necessary to process this kind of personal data.56

6. When Consent is not necessary The processing of personal data requires a lawful basis. However, consent is only one of six grounds on the basis of which the processing may be considered lawful. The GDPR details the following other five grounds which can legitimise the processing:57 53

Council Regulation 2016/679 (n 2) Article 9, clause 2.

54

Council Regulation 2016/679 (n 2) Article 9, clause 2(a).

55

Council Regulation 2016/679 (n 2) Article 10.

56

IT Governance Privacy Team (n13), page 196.

57

Council Regulation 2016/679 (n 2) Article 6, clause 1.

208

VOLUME XXVIIII

1. Processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; 2. Processing is necessary for compliance with a legal obligation to which the controller is subject; 3. Processing is necessary in order to protect the vital interests of the data subject or of another natural person; 4. Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; 5. Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Note this ground does not apply in regard to public authorities in the performance of their tasks.

6. Processing of personal data that cannot be justified on at least one of the above criteria is tantamount to illegal processing. Each of these grounds requires a necessity assessment which as a result strictly limits the context in which such grounds can apply.

Consent is not always the most desirable means of legitimising the processing of personal data;58 it sometimes loses its value when stretched or curtailed to make it fit to situations that it was never intended to cover.59 Using consent in the right context is crucial.

Controllers tend to rely on consent when it is not actually required.60 58

Article 29 Data Protection Working Party, Opinion 15/2011 on the definition of consent, adopted on the 13 July 2011, page 10. It should be noted that this opinion precedes the GDPR. However, the concepts elaborated therein remain, in the view of the authors, applicable.

59

Article29 Data Protection Working Party, Opinion 15/2011 on the definition of consent, adopted on the 13 July 2011, page 10.

60

Nauta Dutilh, Heidi Waem, Jacqueline van Essen and Vincent Wellens, ‘GDPR Series Part 6:

209

ID - DRITT

Consent is too often, and wrongly, seen as a safe haven, thinking that if consent has been acquired the processing is lawful.61 Using consent when reliance on another ground is called for may potentially result in the unlawful processing of personal data. Albeit prior to the promulgation of the GDPR, the Article 29 Working Party had elaborated in this regard that: If, once consent is withdrawn, the data processing continues based on another legal ground, doubts could be raised as to the original use of consent as the initial legal ground: if the processing could have taken place from the beginning using this other ground, presenting the individual with a situation where he is asked to consent to the processing could be considered as misleading or inherently unfair.’62

7. Consent and the Concept of Control The notion of consent has been traditionally linked with the concept that the data subject should be in control of the use of their personal data.63 Consenting presupposes that the data subject exercises a decision. Being in control and remaining in control, in turn, presupposes that the decision to consent may be withdrawn at any time and for any reason.64 In principle, consent in the context of data processing is considered deficient if there is no right of withdrawal.65 The concept of being in control in tandem with the notion of withdrawal of consent needs to be seen in light of the right of the data subject to object to the processing of his personal data. This right Legal Grounds for Processing’(Lexology, 16 February 2017) <http://www.lexology.com/library/ detail.aspx?g=e0750451-03fe-4c9c-b99a-ccbf99530786> accessed 17 August 2017.

61

Ibid.

62

Article 29 Data Protection Working Party Opinion 15/2011, (n 63) 13.

63

ibid 8.

64

Council Regulation 2016/679 (n 2) Article 7, clause 3.

65

Article 29 Data Protection Working Party Opinion 15/2011, (n 63)13.

210

VOLUME XXVIIII

is limited to instances wherein the ground of processing is: (1) performance of a task carried out in the public interest or exercise of official authority, and (2) a legitimate interest of the controller.66 In such instances instead of withdrawing consent, the data subject may object to their personal data being processed. Upon an objection being received, the controller may no longer process the personal data unless they can demonstrate compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject, or for the establishment, exercise or defence of legal claims.67 The data subject’s ability to withdraw consent is just as important as getting their consent in the first place if the basis for processing is consent. Withdrawing consent should be as easy as granting consent.

Accordingly, simple methods must be in place for data subjects to be able to withdraw consent; they must also be informed that they have a right to withdraw consent at any time.68 The withdrawal of consent does not affect the lawfulness of processing based on consent prior to the withdrawal.69 In handling withdrawal of consent, it is necessary to also account for data subjects who have consented to more than one process simultaneously. For example, if a data subject consents to a number of different processing operations online by means of ticking a number of tick boxes, they should be able to withdraw consent in a similarly simple fashion by unticking the tick boxes at a later stage. The implications for website, system, and application design are significant.

Lastly, it should also be noted that the GDPR contains no special requirements relating to the withdrawal of parental consent beyond those of withdrawing ordinary consent.

66

Council Regulation 2016/679 (n 2) Article 21, clause 1.

67

Ibid.

68

Council Regulation 2016/679 (n 2) Article 7, clause 3.

69

Ibid.

211

ID - DRITT

8. Conclusion: Consent Compliance It should be noted that the GDPR’s provisions on consent apply irrespective of when the consent was granted. This presupposes that any consent acquired prior to the coming into effect of the GDPR and any processing of personal data on the basis thereof, following the coming into effect of the GDPR, must nonetheless be in line with the GDPR’s requirements.70 Accordingly, obtainment of a ‘historic consent’ may be required where the consent initially acquired does not satisfy the stricter conditions of the GDPR.71 For controllers with an online presence, there may be easy solutions in order to obtain such a historic consent. A pop-up requesting consent afresh or similar online methods of communications may be considered. For controllers whose business is not online or electronically oriented, more cumbersome methods may apply.

When the data processing is based on consent, the controller must be able to demonstrate that the data subject (or his parent, when the data subject is a child) has consented.72 The burden of proving that valid consent has been acquired rests firmly on the data controller.73 Safeguards need to also be in place to ensure that the data subject is aware of the extent to which consent is being given.74 Complying with the GDPR’s consent requirements will therefore entail numerous practical considerations. The handling of personal data must remain faithful to the purpose stated to the data subject when collecting his personal data. Accordingly, controllers must implement internal procedures and governance processes to ensure that 70

Datlev Gabel and Tim Hickman, - Chapter 8: Consent – Unlocking the EU General Data Protection Regulation’(White & Case 2016) < https://www.whitecase.com/publications/article/chapter-8-consent-unlocking-eu-general-data-protection-regulation > accessed 19 August 2017.

71

Ibid.

72

Council Regulation 2016/679 (n 2) Article 7, clause 1.

73

Ibid Recital 42.

74

Ibid

212

VOLUME XXVIIII

any subsequent processing of personal data does not stray from the purpose for which the consent was initially given without a compelling and legitimate justification, which should ideally be also recorded. Staff training in handling personal data is crucial for any controller to remain compliant in this respect.

The actual manner of collecting consent also needs to be considered, in order to ensure that the manner of collection complies with the GDPR. Many organisations already have methods in place in accordance with the current law. However, the increased scope and more stringent conditions which are necessary for a valid consent under the GDPR imply that these methods will need to be re-examined, at least to confirm that the method which is applied is compliant with the GDPR. It will not be enough to implement methods in virtue of which consent is collected; the data controller must be able to prove that the consent is valid. To reconcile the individual processing against the personal data collected and the purpose for collection, one could even seek to implement applications that enable the recording of the date and time when the consent was given as a way to prove compliance.

For personal data that is not stored electronically, the available methods may be more cumbersome. Consent on paper requires considerable management effort. For consent granted orally, the difficulty may be even greater. Automatically recording oral consent, say via a telephone call, may not be logistically desirable. Marking oral consent digitally or on paper could be an alternative but would entail added processing and effort.

Irrespective of the method which is used to collect consent, the personal data must be readily accessible to allow the data subject to exercise their access rights.75 The personal data must also be readily editable by the controller in order to enable the data subjects to exercise their rights of requesting rectification of the personal data or withdrawing their consent. The use of online tools, settings, or a dashboard that allow data subjects to review their consent or person75

Council Regulation 2016/679 (n 2) Article 15.

213

ID - DRITT

al data, allowing also the option to update or rectify it when desirable, will become one of the simplest ways of complying with the GDPR. For any personal data collected on the basis of consent, a controller will also need to ensure that there are processes which allow a data subject to exercise their new right of data portability.76 This new right gives the option to the data subject to receive from the controller the personal data which they have provided to the controller in a structured and commonly used machine-readable format.77 The data subject also has the right to request that the personal data is sent by the controller to another controller directly.78 Electronic methods of personal data management are therefore likely to become the preferred methods of personal data management.

Giving effect to the right of data portability and the other rights of the data subject would otherwise be cumbersome for data controllers. A proliferation of software applications and tools intended to assist in complying with the GDPR have, in the authors’ view, materialized as a result even before the coming into effect of the GDPR. In this respect, the GDPR may be lauded as it has had the effect of increasing awareness on privacy and data protection.

76

Council Regulation 2016/679 (n 2) Article 20, clause 1.

77

Council Regulation 2016/679 (n 2) Article 20, clause 1.

78

Council Regulation 2016/679 Article 20, clause 1.

214

The General Data Protection Regulation: Automated decisions and the impact on Big Data Analytics Alastair Facciol

Alistair Facciol is a legal associate within the Technology, Media and Telecommunications practice at Fenech & Fenech Advocates. Dr Facciol started practicing in the ICT and Privacy, Gaming, and Intellectual Property sectors shortly after obtaining a doctorate of laws from the University of Malta in 2012, specialising in ICT, Cloud Computing, and the respective privacy and data-protection related challenges. He is currently reading for a LL.M. in Computer and Communications Law at Queen Mary University of London, and has also been invited to address multiple conferences and seminars concerning Cloud Computing, the GDPR and online gaming. Alistair also takes active interest in blockchain technology.

ID - DRITT

I

n 1995, when the Data Protection Directive1 (hereinafter referred to as the ‘Directive’) was introduced, the term ‘automated individual decisions’ was coined and in relation thereto, the Directive provides that ’every data subject must […] have the right to know the logic involved in the automatic processing of data concerning him’.2 The term ‘automated individual decisions’ is not specifically defined in the Directive which does, however, establish a right in relation thereto. Specifically, the Directive provides that an individual is ’not to be subject to a decision which produces legal effects concerning him or significantly affects him and which is based solely on automated processing of data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct’.3 The Directive goes on to provide that an individual may, however, be subjected to an automated individual decision where such decision ’is taken in the course of the entering into or performance of a contract’4 or the decision is ’authorized by a law which also lays down measures to safeguard the data subject’s legitimate interests’.5 It is therefore, only within these two limited scenarios where data controllers may make use of automated individual decisions as established under the Directive.

Automated individual decisions are provided for under Article 24 of the Data Protection Act, Chapter 440 of the Laws of Malta, wherein it is provided that: [I]f a decision is based solely on automated processing of such personal data as is intended to assess the qualities of a natural person, and such decision has a legal or other significant effect for that person, that person shall have the right to request that the decision be reconsid1

European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31.

2

ibid Recital 41.

3

ibid Article 15(1)..

4

ibid Article 15(2)(a)..

5

ibid Article 15(2)(b)..

216

VOLUME XXVIIII

ered other than in a manner based solely on automated processing, and such reconsideration shall be obligatory on the person making such decision.6 A proviso is also applicable, whereby the above provision does not apply in cases where the decision is taken in the course of entering into or performance of a contract with the data subject, ’provided that the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied or that there are suitable measures to safeguard his legitimate interests such as the right to be heard.7 When undertaking a discussion with regard to the topic related to automated individual decisions, it would be pertinent to note that back in 1995, decisions based purely on automated means, leaving out any human intervention, were less common than they are today.

Specifically, social media was still practically non-existent whilst the Internet was still something which was widely unheard of. However, with the emergence of the Internet, which in turn rendered possible the situation where new sources of large amounts of data could be made available to organisations, and an increased availability of individuals’ personal data on the same Internet together with the advancements being recorded in technology, the situation was constantly evolving. Data started to be generated in growing numbers whilst the advancements in technology allowed individuals to capture, communicate, aggregate, store and analyse enormous pools of data, known as big data.8 The practice of compiling, processing, and storing considerable amounts of data has been around for several years. It was in the early 2000s when Doug Laney9 first pronounced a definition of big data, 6

Data Protection Act, Chapter 440 of the Laws of Malta, Article 24.

7

ibid Article 24 (2).

8

Manyika, Chui, Brown, Bughin, Dobbs, Roxburgh & Byers, ‘Big data: The next frontier for innovation, competition, and productivity’, June 2011, McKinsey Global Institute, available at <http://www.mckinsey.com/Insight/MGI/Research/Technology_and_Innovation/Big_data_ The_next_frontier_for_innovation>, accessed 2 May 2017.

9

Doug Laney is a VP and Distinguished Analyst with Gartner’s Chief Data Officer Research

217

ID - DRITT

which then went on to be amended by Gartner to state that ’Big data is high-volume, -velocity and –variety information assets that demand cost-effective, innovative forms of information processing for enhanced insight and decision making’. This definition described how organisations were collecting data from numerous sources, including social media platforms and business transactions, at high speeds, which involved processing different formats of data, such as documents, videos, audio, financial transactions, and databases in order for those organisations to form business decisions and also study their relevant market. These organisations started connecting and linking big data in order for them to create individual profiles containing personal data, thereby giving rise to profiling, which ’enable[d] a person’s personality or aspects of their personality – especially behaviour, interests and habits – to be determined, analysed and predicted’.10 Profiling, which is one commonly-used form of automated processing based upon which, decisions are taken, has generated widespread debate and discussions, in particular, due to the implications it has on the right to data protection.

In this context and, due to the increase in profiling activities that were being undertaken by organisations, the General Data Protection Regulation11 (hereinafter referred to as the ‘GDPR’) sought to elaborate with respect to the term ‘automated individual decisions’ by including a definition of the term ‘profiling’ which is: Any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, beteam.

10

Article 29 Data Protection Working Party (A29WP), ‘Advice paper on essential elements of a definition and a provision on profiling within the EU General Data Protection Regulation’(13 May 2013).

11

European Parliament and Council Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data [2016] OJ L119/1.

218

VOLUME XXVIIII

haviour, location or movements.12 The GDPR further explains the term ‘monitoring of an individual’s behaviour’ and states that: [I]n order to determine whether a processing activity can be considered to monitor the behaviour of data subjects, it should be ascertained whether natural persons are tracked on the internet including potential subsequent use of personal data processing techniques which consist of profiling a natural person, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviour and attitudes.13 When assessing the impact that the GDPR provisions relating to automated decisions may have on big data analytics and credit rating agencies, it is pertinent to initially discuss the territorial scope of the GDPR, which is broader and more wide-reaching that the Directive.

Specifically, the GDPR not only applies to data controllers that are established within the EU, but it will also apply to those data controllers that are not and ’where the processing activities are related to […] the monitoring of their behaviour as far as their behaviour takes place within the Union’.14 In this regard, big data analytic companies and credit rating agencies which are not based in the EU, but which, in the course of their activities, carry out any profiling relating to individuals residing in the EU, will also be subject to the provisions contained within the GDPR, and will therefore, have to carry out such data processing activities and profiling within the ambit of the rules established by the GDPR pertaining to automated decision-making.

Secondly, and apart from the territorial scope of the GDPR, it is also essential to discuss the material scope of the GDPR, which establishes the criteria upon which the GDPR provisions relating to automated processing of personal data are triggered. In particular, where a 12

ibid Article 4(4).

13

ibid Recital 24.

14

ibid Article 3(b).

219

ID - DRITT

decision based solely on automated processing has to be made about an individual, which decision would produce legal effects concerning the same individual, or would significantly affect him or her, then the GDPR strives to safeguard the rights of that individual, and establishes that the data subject has the right Not to be subject to a decision, which may include a measure, evaluating personal aspects relating to him or her which is based solely on automated processing and which produces legal effects concerning him or her or similarly significantly affects him or her, such as automatic refusal of an online credit application or e-recruiting practices without any human intervention.15 Arising out of this provision is the right to object to automated processing. The GDPR then goes on to outline the cases in which decision-making based on such automated processing should be allowed, specifically: To ensure the security and reliability of a service provided by the controller, or necessary for the entering or performance of a contract between the data subject and a controller, or when the data subject has given his or her explicit consent.16 Where automated processing, including profiling, is being undertaken based on a contractual relationship that the data controller has with the data subject, or else following the data subject’s explicit consent, then the data controller is to provide suitable measures in order for it to safeguard the rights of individuals and freedoms and legitimate interests. Specifically, the data controller needs to grant the individual with the faculty to provide human intervention and allow the individuals to express their point of view. Furthermore, the GDPR also provides that the individual, in this case, needs to be provided with the right to contest the decision which was based on automated processing and profiling.

15

ibid Recital 71.

16

ibid.

220

VOLUME XXVIIII

Data controllers also have the obligation under the GDPR to provide the data subject, at the time when personal data are acquired, with: The existence of automated decision-making, including profiling, […] and at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject’17 With respect to what is known under the Directive as ‘sensitive personal data’, the GDPR establishes a prohibition with respect to data controllers making use of an individual’s special categories of data (sensitive personal data) for automated decision-making purposes. The GDPR establishes two exceptions to this prohibition: where the individual in question has provided his or her explicit consent to such automated decision-making, or where such automated decisions are required for reasons of public interest. In these two exceptions, ’suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests’ need to be in place.18

Prima facie, it might seem that the GDPR does not significantly change the situation in relation to automated decision making from the way it was under the Directive and the Data Protection Act, thereby leading some to think that the GDPR will not change the situation for these big data analytic companies and credit rating agencies.

However, it is essential to point out, that whilst the GDPR provides similar restrictions to those contained in the Directive under Article 15, it also establishes some crucial changes. Particularly, it is immediately noticeable that the GDPR establishes a specific definition for the term ‘profiling’, whilst at the same time, it adds a provision whereby the data subject’s explicit consent can serve as a legal basis in order for the data controller to undertake automated data processing activities, including profiling. The GDPR also introduces changes to situations where special categories of data (sensitive personal data) are involved, 17

ibid Article 13(2)(f).

18

ibid Article 22(4).

221

ID - DRITT

whereby it establishes prohibitions which restrict profiling activities based on individual’s sensitive personal data, unless the explicit consent of that individual is acquired. The obligation to provide information to data subjects with respect to any profiling activities being undertaken is also introduced by the GDPR. The above changes could arguably impact the activities of big data analytic companies and credit rating agencies, specifically as they will now have to identify whether their automated processing activities, such as profiling, will produce any legal effects or whether they will significantly affect the data subjects in question. This, in turn, will be of assistance to these organisations in identifying whether the activities that have been undertaken are subject to the provisions relating to automated individual decision-making within the GDPR. One aspect worth commenting upon is the lack of definition or clarification with respect to the terms ‘legal effects’ and ‘significantly affects’ present in the GDPR.19 This could create a situation whereby different Member States of the European Union provide varying interpretations to these terms depending on the views of the various data protection supervisory authorities or national courts during a review which is undertaken into the actions of a data controller. Particularly, this lack of clarification could potentially hinder the harmonisation of data protection laws between the different Member States, but significantly, could also hinder the activities of big data analytic companies and credit rating agencies who might steer away from undertaking certain activities in order to avoid running the risk that such activities would be interpreted as producing ‘legal effects’ on the data subject, and ‘significantly affecting’ such data subject.

Particularly, these organisations, including big data analytic companies and credit rating agencies, will have to ensure that any automated individual decision-making activities, including profiling, have the required legal basis, whether such legal basis exists under any particular law which authorises such processing, whether there exists a necessity in order for these organisations to execute a contract with the data subject or for the proper performance thereof, or with the 19

ibid Article 22(1).

222

VOLUME XXVIIII

attainment of the data subject’s explicit consent before undertaking such activities.

As soon as these organisations have identified the lawfulness of their automated individual decision-making activities and profiling, they will then need, under the GDPR, to ensure that data subjects can exercise their rights and therefore, they will need to implement appropriate measures in this respect. Essentially, big data analytic organisations and credit rating agencies will need to ensure that data subjects are afforded the right not to be subject to a decision which is based solely on automated processing. These organisations may achieve this by applying privacy enhancing techniques such as pseudonymisation, defined by the GDPR as that: Processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person20 Or data minimisation, which essentially is The idea that, subject to limited exceptions, an organisation should only process the personal data that it actually needs to process in order to achieve its processing purposes.21 The GDPR also provides for data minimisation and specifically lays out that personal data needs to be adequate, relevant and limited to what is necessary.22 Both pseudonymisation and data minimisation are techniques which are targeted towards 20

ibid Article 4(5)

21

Gabel, Hickman, ‘Chapter 6: Data Protection Principles – Unlocking the EU General Data Protection Regulation’, White & Case LLP, available at < https://www.whitecase.com/publications/article/chapter-6-data-protection-principles-unlocking-eu-general-data-protection>, accessed 3rd May 2017.

22

European Parliament and Council Regulation 2016/679 of 27 April 2016 (n 11) Article 5(1)(c).

223

ID - DRITT

minimising the privacy risks when processing data related to data subjects.

The GDPR also provides for another aspect which will be essential for big data analytic organisations and credit rating agencies. Specifically, the GDPR provides that: Where a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data.23 This express obligation for data controllers to carry out impact assessments is a new express burden on data controllers which, arguably, applies particularly to big data analytic companies and credit rating agencies which technically carry out processing which may likely result in a high risk to the rights and freedoms of natural persons. It is therefore arguable that big data analytic organisations and credit rating agencies need to carry out this privacy impact assessment before undertaking their activities in order to assess the impact of these processing operations. The GDPR specifically confirms this and provides that a privacy impact assessment is required in the case of: A systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person.24 This might therefore significantly impact big data organisations and credit rating agencies since before embarking into their data processing activities, they will need to carry out privacy impact assess23

European Parliament and Council Regulation 2016/679 of 27 April 2016 (n 11) Article 35(1).

24

European Parliament and Council Regulation 2016/679 of 27 April 2016 (n 11) Article 35(3)(a).

224

VOLUME XXVIIII

ments.

Finally, one other aspect that can significantly impact the activities of big data analytic organisations and credit rating agencies is non-compliance with the GDPR. Essentially, these organisations cannot run the risk of non-compliance with the GDPR due to the hefty fines that are prescribed therein. Specifically, non-compliance with the provisions of the GDPR in relation to the data subjects’ rights and the principles of data protection together with the lawfulness of processing carries with it a fine of up to Euro 20,000,000, or up to 4% of the total worldwide annual turnover, whichever of the two is the highest. Non-compliance with the provisions of the GDPR will therefore significantly impact the operations of big data analytic organisations and credit rating agencies which cannot afford to incur those type of fines on their operations.

It therefore seems to be the case that the GDPR will, at face value, significantly impact the operations of big data analytic organisations and credit rating agencies, specifically due to the added specific obligations imposed, including the carrying out of privacy impact assessments together with affording data subjects with the right not to be subject to a decision based solely on automated processing, and inter alia providing data subjects with the right to obtain human intervention. Arguably, these types of organisations cannot risk non-compliance with the provisions of the GDPR due to the hefty fines that non-compliance carries with it – fines that would significantly impact the operation of such organisations.

225

Employment Law

Employment Law - Disciplinary procedures and warnings Natalino Caruana De Brincat

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. He is currently an Associate with Camilleri Cassar Advocates.

ID - DRITT

1. Introduction

T

his article will provide a general understanding of the applicability of disciplinary procedures and warnings of Maltese Employment Law1, by delving into the development of the notion, its applicability within the industry and its interpretation by the Courts.

The current legislative instruments fail to provide a clear definition of disciplinary procedures and warnings. However, Maltese jurisprudence generally applied the English law interpretation of the said subject matter.

The Maltese Constitution2, together with the Employment and Industrial Relations Act3,protect the right to employment. Thus, restricting the right of employers to dismiss employees– which in turn results from a number of measures, including restrictions on the employer as to when employees can be dismissed during the term of an indefinite contract by requiring a good and sufficient cause.4 Therefore, in the case of an indefinite contract, the law explains that the employment agreement merely terminates upon retirement, death, voluntary resignation, redundancy or dismissal for good and sufficient cause. Any unlawful dismissal, provides the employee with a right of action before the Industrial Tribunal5 pleading either for reinstatement, re-engagement or compensation.

If the employer abruptly terminates a fixed-term contract before it reaches its predetermined termination, the latter would have to pay half of the remuneration to the employee would he have been paid, 1

Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta.

2

Constitution of Malta, Article 12(1) ‘The State shall protect work.’

3

ibid (n 2)

4

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 as provided in sub-articles (10), (11) and (12) if there is good and sufficient cause for such dismissal or abandonment of service:’ 5

ibid Article 73. (1) ‘There is hereby established a tribunal to be known as the Industrial Tribunal’.

228

VOLUME XXVIIII

had he fulfilled his contractual obligations (and vice versa). 6

2. What are Disciplinary procedures?

Most employers, primarily those having workers representations (including trade unions), may find it necessary to implement certain disciplinary procedures generally delegating the implementation of the same to its human resources department.78 Disciplinary procedures are usually drafted in a manner to reflect the level of misconduct, by means of linking the penalty to reflect the grievance of the offence. By way of example, the 2007-2010 Heritage Malta Collective Agreement provided for disciplinary procedures which proposed two levels of misconduct ‘minor offences’ and ‘serious or gross misconduct’. In fact, the maximum penalty for the former was a written warning, whilst in case of the latter breach the maximum penalty was instant and summary dismissal.9 The implementation of disciplinary procedures, and the powers attached thereto, are not to be utilised as a means of punishment but rather should be considered as a redress or corrective mechanism.

The implementation and enforcement of disciplinary procedures should not be purported as a means to devalue the employee’s status within the workforce, but instead it should be implemented together with an opportunity for the employee to voice any concern related to how they are being treated by the company or any superior thereof.

6

ibid 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.’

7

Taylor. S, Emir. A, Employment Law: An Introduction (3rd edn, Oxford University Press 2012) 123.

8

Selwyn. N, ‘Law of Employment’, (13th edn,Oxford University Press 2006)309.

9

The agreement was entered into on the 6th day of December 2007 between Heritage Malta and the Union Ħaddiema Magħqudin, which agreement became the collective agreement for all employees working at Heritage Malta for the period between 2007 and 2010.

229

ID - DRITT

The proper drafting of any disciplinary procedures is crucial.10 In situations where a trade union is involved, the drafting is based on mutual consent between the parties around the negotiating table, however when the work place is not unionised the task would fall directly in the hands of the employer. Hence, in the former situation the trade union acts as the voice of the workers, whilst in the latter the workers would most likely not have any say, particularly if the procedure was already implemented before their engagement. This point was highlighted in East Hertfordshire District Council v Boyten11, where the Employment Appeals Tribunal held that in light of the fact that a disciplinary procedure was in place, it was to be followed by management. This procedure was drawn up with the approval of the trade unions, and since the employer followed it to the letter, it cannot be said that the employer acted unreasonably.12 In practice, employers have often opted to include basic information on the disciplinary procedures (and in some cases, even more detailed information) as a section or schedule to the employment contract. The purpose of this is to ensure that such procedures are contractually agreed upon and, therefore, based on the legal principle of Pacta sunt servanda. Indeed, the employer and employee are together bound by the terms of the agreement reached in good faith.

In the case of Malta International Airport p.l.c. vs Chev. Joseph M. Scicluna et noe13, the Court held that: Il-prinċipju pacta sunt servanda huwa wieħed applikat rigorosament mill-Qrati tagħna, u jekk ma tirriżultax xi ċirkostanza li, skond il-liġi, tista’ twassal għat tħassir tal-kuntratt, l-istess kuntratt irid jiġi esegwit miżżewġ naħat.

10

Selwyn (9) 313.

11

[1977] IRLR 347 (EAT).

12

Komiya. Y, ‘A comparative study of the Law of dismissal in Japan, Great Britain and the United States from the perspective of employment protection’ (PhD Thesis 2014, London School of Economics).

13

1348/2000/Malta International Airport p.l.c. vs Chev. Joseph M. Scicluna et noe, First Hall, (Civil Court) 9 October 2003.

230

VOLUME XXVIIII

The drawing up of disciplinary procedures should include a description of the general process to be used by an employer on becoming aware of an offence. Accordingly, it is always advisable for employers to provide details on (i) an interpretation of level of offences subject to internal disciplinary procedures (ii) a non-exhaustive list of what constitutes a minor office and was tantamount to a gross misconduct and (iii) the general procedure on the proceedings, for instance setting out whether a disciplinary board is constituted and whether the members serving on the board should consist of internal or external individuals.

It is important that disciplinary procedures follow principles of Natural Justice, 14 and therefore employees should be provided with details of the breach, 15 the right to state one’s case 16 and above all the right that his case is subject to an independent and impartial disciplinary board (or individual entrusted with the task to decide on the offence). Coupled with the aforesaid any decision handed by the disciplinary board should be based on reasoned facts, ergo the board is bound to give reasons for the decision taken. This point was emphasised in Laraine Clark vs Civil Aviation Authority17, where the Employment Appeals Tribunal held that: [a] disciplinary hearing is obviously necessary as are any appeal hearings [omissis]. The practice at such hearings will follow the rules of natural justice, which are really matters of fairness and common sense.

In line with the aforementioned in the case of Antoinette Vella vs CareMalta Limited 18 the Industrial Tribunal held that the employee has the right to be granted a fair and just proceeds before the disciplinary board. In the case of Austin Gonzi vs Malta Drydocks 14

1808/1997/1 Laraine Clark vs Civil Aviation Authority, Court of Appeal 27 October 2004.

15

543/2006/1 Zammit Raymond vs General Workers’ Union Et, Court of Appeal 8 January 2010.

16

654/2005 Abela Johanna vs HSBC Bank Malta Plc, First Hall, Civil Court 04 July 2016.

17

[1991] UKEAT 362_89_1806.

18

2859/Antoinette Vella vs CareMalta Limited, Industrial Tribunal 14 April 2015.

231

ID - DRITT

Corporation 19 the court held that: Hekk jinsab assodat fi skorta ta’ deċiżjonijiet illi bordijiet u tribunali li jkollhom attribuzzjonijiet u funzjonijiet deċiżjoni ma jistgħux, fl-espletament ta’ dawk l-istess attribuzzjonijiet u funzjonijiet, jinjoraw il-prinċipji bażiċi ta’ ġustizzja naturali.

Furthermore, the Court of Appeal in the case of Joan Montanaro vs BayStreet Hotel Complex Ltd u BayStreet Holdings Ltd 20 confirmed that the employee should be clearly informed of the breach which the employee is being accused of.

The employer who fails to abide by the disciplinary procedures in force, could be perceived as not acting reasonably especially if the procedures encompass a right of the employee to appeal from decisions related to the alleged misconduct. The First Hall Civil Court in the case of Avukat Reno Borg vs Joseph N Tabone et noe 21 held that: Huwa stabbilit ukoll illi proċedimenti dixxiplinari dwar impjegati huma setgħa u prerogattiva ta’ min iħaddem u huwa mistenni ukoll li l-imsemmija proċeduri ma jitqabblu ma dawk ta’ tribunal jew Qorti. Ingħad li fejn min iħaddem ikun intrabat ‘li jsegwi ċerta proċedura,’ ir-rikorrenti jista’ jivvanta xi ilment jekk jsostni li dak li ġie konkordat bejn il-Union li tirrapreżentah u l-employer f’Collective Agreement u li jagħtih ċerti drittijiet ma jkunx qed jiġi skrupolożament osservat.

Therefore, this implies that if an employer provided for internal disciplinary procedures, the same employer is bound to adhere to without any hesitation.

The disciplinary proceedings need not be similar to a trial. Nev19

1808/1997/1 Austin Gonzi vs Malta Drydocks Corporation, Court of Appeal 27 October 2004.

20

12/2008 Joan Montanaro vs BayStreet Hotel Complex Ltd u BayStreet Holdings Ltd, Court of Appeal 13 March 2009.

21

Avukat Reno Borg vs Joseph N Tabone et noe, First Hall, Civil Court 11 June 1991.

232

VOLUME XXVIIII

ertheless, the employee accused with an offence should be given the opportunity to be represented. In some collective agreements, such as the above-mentioned, the employee was provided the right to be represented by a union official and/or any person of one’s choice. The right to be represented was discussed in the case of Rank Xerox (UK) Ltd vs Goodchild and Others22,where it was held that employees should be granted the right to be duly represented since the disciplinary procedures provide for such concession.

Disciplinary procedures should also provide a right to appeal from the decision of the disciplinary board. Most collective agreements provide for an appeal before a secondary impartial panel or officer.

Selwyn reports that in the case of S.C. Brown Communications Ltd v Walker23,the Court held that the employee should be made aware of such right to appeal to the employer’s management body. This, especially where the management body was not previously part of the disciplinary board, or before a totally independent arbitrator. In some situations, it would be ideal to avoid having the appeal subject to the decision of an internal panel or senior officer. By way of example, the 2007-2010 Heritage Malta Collective Agreement provided that the decision of the disciplinary board shall be final, unless of course within ten days from when the decision is taken the employee does not file an appeal in writing to the Chief Executive Officer. In this case, the procedure provided for the setup of a secondary board consisting of a chairman, selected by agreement between both parties, together with two other individuals (a representative of the agency and a representative of the trade union). This would appear to render the said procedure to be fair and just.

3. What are Disciplinary Warnings?

In the collective agreement aforementioned, the disciplinary procedure in appendix F provide under section 5.0, stated that the 22

[1979] IRLR 185.

23

Selwyn (n 9) 317.

233

ID - DRITT

maximum penalties were to be issued according to the level of the offence. In case of gross misconduct, however, the maximum penalty was instant and summary dismissal, whilst if the offence was minor a written warning was the maximum penalty. Having said that, for an employer to issue warnings there need not necessarily be in place any disciplinary procedure and, moreover, an employer is entitled to issue verbal or written warnings without such being catered for in the employment contract. 24 The warning system need not lead to dismissal in fact it is to merely be considered as a corrective nature25. There have been a number of decisions of the Industrial Tribunal where it analysed the effectiveness of warnings and stressed the employer’s efforts in pointing out to the attention of the employee any misconduct which might lead to dismissal. In the cases of Simon Scicluna vs DI Limited26, Anthony Mark Barbara vs Invicta Limited27 and, Carmelo k/a Charles Borg vs Dragonara Gaming Limited28, the Industrial Tribunal referred to a case before the Employment Appeal Tribunal in England in the name of Plasticers vs Harold Amos. The tribunal in England held that: [a] warning is only shorthand for steps which ought to be taken by the management and could otherwise be described [omissis] as efforts to try to make the employee change, and an indication to him of the consequences if these efforts are unsuccessful.

In most cases, the warning system would be trifold. The first warning will be an oral warning, followed by the first written warning and, finally, the second written warning which will possibly lead to either a suspension or instant dismissal. Selwyn opines that ‘a final warning 24

ibid 355.

25

ibid.

26

1595/FM Simon Scicluna vs DI Limited, Industrial Tribunal 27 February 2003.

27

2217/FM Anthony Mark Barbara vs Invicta Limited, Industrial Tribunal 12 January 2005.

28

2849/FM Carmelo k/a Charles Borg vs Dragonara Gaming Limited, Industrial Tribunal 04 December 2013.

234

VOLUME XXVIIII

is a severe penalty which just stops short of a dismissal.’ 29 Nonetheless, it is considered good practice to have oral warnings transcribed in writing and a copy thereof kept in the personal records of the employee. It is advisable that all kinds of warnings handed to employees, being oral or written, are signed by the same employee to serve as an acknowledgment of receipt of such warning.

Another important practice to be followed is that of giving a written warning some form of lifetime (for example six months), after which the records of the particular employee would be wiped clean.

Hence, the warning would be removed from the employee’s personal records30.

Selwyn opines that organisations where a disciplinary procedure is in place the employer is bound to adhere to it strictly31. The reason why employers should strictly adhere to the procedural steps as found in their disciplinary procedure is to avoid being accused before the Industrial Tribunal for unfair dismissal. In Raymond v Sir Lindsay Parkinson Ltd32, the Industrial Tribunal dealt with a matter touching upon the non-issuance of a written warning to an employee who was subject to a dismissal. The tribunal concluded that failure to adhere to the internal procedure resulted in an unfair dismissal. On the other hand, the decision between issuing either an oral or a written warning need not be a mechanical one, but rather based on the gravity of the offence. Indeed, in the case of Val Marco Valente vs Alfred Pisani et noe33, the court held that: it-terminazzjoni ta’ l-impieg tiegħu kienet miżura ħarxa wisq fiċ-ċirkostanzi; l-attur seta’ ingħata warning u jkun penalizzat...

Therefore, the element of reasonableness may still be adopted by 29

Selwyn (n 9) 336.

30

Taylor(n 8) 124.

31

Selwyn. N, ‘Law of Employment’ (n10) pg 335.

32

[1974] IRLR 298.

33

1615/93Val Marco Valente vs Alfred Pisani et noe, First Hall, Civil Court 26 March 1999.

235

ID - DRITT

the employer in following the disciplinary procedures. In exercising reasonableness, the employer must also ensure that the procedures are proportionate to the breach and this in order to avoid the disciplinary proceedings being interpreted as a constructive dismissal. By way of example an employer who issues a final warning to one of his employee`s for a mere minor offence might be perceived by the court as disproportionate response for such breach. In the case of Stanley Cole (Wainfleet) Ltd. v Sheridan34, Mrs Sheridan was employed by Stanley Cole (Wainfleet) Ltd., a manufacturing company, until she resigned in 2000. She lodged a complaint to the Employment Tribunal in Nottingham alleging that she had been unfairly constructively dismissed. The Employment Tribunal held that the employer’s decision to serve the employee with an unjust warning coupled together with disciplinary penalties, was disproportionate to the level of misconduct. A final written warning was deemed by the Employment Tribunal unreasonable for a minor breach, thereby the warning was disproportionate.

In the case of Eileen Leone Ganado v Link School of Languages Limited35,the court referred to Selwyn publication ‘Law of Employment’36 and held that: Ta’ rilevanza importanti hi l-osservazzjoni ġenerali sottomessa mill-awtur ċitat illi ‘each case must be determined on its own merits (para. 12.119) In another case that of Joseph Zammit vs Jonathan Callus Ezerċenti l-kummerċ bħala Callus Landscaping & Gardening37, the Industrial Tribunal dealt with a matter touching abrupt redundancy and held: [ir]-rikorrent ġie mkeċċi mill-impieg a bażi ta’ mġieba 34

[2003] ICR 297 EAT.

35

29/2015 Eileen Leone Ganado v Link School of Languages Limited, Court of Appeal28 April 2017.

36

Selwyn (n 9).

37

3157/LC Joseph Zammit vs Jonathan Callus Ezerċenti l-kummerċ bħala Callus Landscaping & Gardening, Industrial Tribunal] 21 April 2015.

236

VOLUME XXVIIII

ċensurabbli, però in kwantu ma jirriżultax li huwa ġie mwissi aktar minn darba biex jirranġa l-imġieba tiegħu, dan it-Tribunal qed jikkonkluxi li din it-tkeċċija tiegħu mill-impieg mhix ġustifikat għal kollox.

Furthermore, considering that a warning is a means to redress a behaviour which possibly lead to misconduct, it is advisable that such warning includes reference to the past conduct which is the subject of the offence. It would be appropriate to provide the employee with remedial action to be taken with the aim to avoid future warnings which might lead to more severe action. If remedial action is suggested, or instructed, it would be wise for an employee to specify the time frame within which such remedy is to be fulfilled.

4. Conclusion In summary, when issuing disciplinary procedures, employers are to use reasonableness and proportionality, by being fair and just, by evaluating the misconduct thoroughly and by keeping in mind the previous conduct of the employee. A disciplinary and a grievance procedure should not serve as a tool in the hands of the employer to punish or dismiss unwanted employees, but rather it should be utilised as a fair way to preserve the employer and employee relationship thus by providing the appropriate mechanism to avoid future predicaments.

38

38

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 regulated by several European Union directives and regulations.

237

Environmental Law

The Recast Renewable Energy Directive - Any consequences for climate change?

Rya Gatt

Rya Gatt graduated as a Doctor of Laws at the University of Malta in November 2008, and then acquired an LL.M in International Law at Georgetown University, concentrating on areas in both Public and Private International Law, as well as another LL.M in Energy, Environmental and Climate Change Law from the University of Leuven in 2015. Between 2009 and 2010, Rya worked with a non-governmental organisation in Washington D.C. focusing on international human Rights. After returning to Malta, she joined Camilleri Preziosi as a Trainee, before being appointed Associate in 2011, and even more recently as a Senior Associate with the same firm..

ID - DRITT

1. Introduction

A

t the 2015 Climate Change Conference in Paris, the European Union1committed itself to contributing to limiting the global rise in temperature to only 1.5o. Renewables, together with energy efficiency, are key to reaching this goal’.

These are the words of the European Commission, said just two months after the publication of a proposal for an update of the Directive on the promotion of renewable energy sources (‘Recast RED’),2 a proposal which will see the complete reform of support schemes, the abolishment of the ‘priority of dispatch’ rule3, and the removal of national binding targets, which is arguably, the most important drive for renewable energy policies and investments in many Member States.

The EU has long committed to becoming the world leader in renewable energy to fight the global battle against climate change.4 In fact, the President of the European Commission, Jean-Claude Juncker, has defined this ambition as one of the European Commission’s main political priorities. As part of the effort to achieve this goal, the EU launched a ‘Clean energy for all Europeans’ package5 which presents regulatory proposals and facilitates measures for energy efficiency, security of supply and renewable energy, among others. The Proposed RED forms part of this package.

The aim of this article is to discuss and assess whether the Recast RED, which will effectively define the EU’s renewable policy in the period 2021-2030, offers sufficient measures to achieve the 2030 goals and, ultimately, whether it can successfully contribute – as did its predecessor - towards the fight against climate change. For purposes 1

Hereinafter referred to as the ‘EU’.

2

European Commission Proposal for a Directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources (recast) 2016/0382(COD).

3

With some limited exceptions for small and existing installations.

4

European Commission, ‘Commission staff working document impact assessment Sustainability of Bioenergy’ (2016)<https://ec.europa.eu/energy/sites/ener/files/documents/1_en_impact_assessment_part4_v4_418.pdf> accessed 11 March 2018.

5

The ‘Clean energy for all Europeans’ package was released on 30 November 2016.

240

VOLUME XXVIIII

of this discussion it is necessary to first review some of the key provisions of the current Renewable Energy Directive6 and the changes that the Recast Renewable Energy Directive7will introduce. However, in the short space available, it will not be possible to consider all of the proposed changes and therefore this article will be limiting the review and discussion to those changes which are most likely to have an effect - be it positive or otherwise – on the EU’s climate change goals.

The upcoming section of the article will provide a brief overview of some of the key provisions of the existing Directive RED which have been instrumental in the increase of renewable energy sources over the last decade and consequently in the battle against climate change.

2.The Renewable Energy Directive On 5 June 2009, the European Commission published Directive 2009/28/EC8 on the promotion of the use of renewable sources.

The purpose of this Directive was to put in place the framework for achieving the EU’s ’20-20-20’ goals, which includes a mandatory EU target of a 20% share of the EU’s energy from renewable sources by 2020.

The RED has been described as a highly effective instrument and has led to a significant increase in renewables within a relatively short period. Its success, naturally, is a result of its key features, including the so-called ‘priority of dispatch’ rule, the national support schemes, and the national binding targets, all of which will be looked at in more detail further on in this article.

6

European Parliament and Council Directive 2009/28/EC of 23 April 2009 on the promotion of the use of renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L140/16.

7

Hereinafter referred to as the ‘RED’.

8

ibid.

241

ID - DRITT

2.1 Priority of Dispatch One of the main features of the RED is the rule on ‘priority of dispatch’.9 This requires Member States to ensure that when dispatching electricity, transmission system operators give ‘priority to generating installations using renewable energy sources in so far as the secure operation of the national electricity system permits and based on transparent and non-discriminatory criteria.’10 Operators of an electricity system generally have an obligation to ensure that the system and the grid are stable; in other words, they must balance supply and demand. Therefore, if there is too little electricity, the operator will signal producers to increase production, but if there is too much, some producers may be regulated downwards.

In this context, priority of dispatch for renewables means that renewable energy producers will not be deregulated, as the electricity they produce must be dispatched ahead of any other conventional generator.

There is little doubt that the priority of dispatch rule has been key in promoting the production of energy from renewable sources, however, it has resulted, at least in some Member States11 to have had a somewhat negative effect on conventional generation sources such as oil, gas, and even nuclear sources, as producers have had to be regulated downwards at certain times to keep the system in balance.

Moreover, they have to be available to offset the electricity demand in the event that the renewables are not available as expected.

The RED also imposes a requirement for renewables to have priority access to the grid, assuring connected generators of renewable electricity that they will be able to sell and transmit their electricity in accordance with connection rules at all times, whenever the source is available.

9

This feature was included in the first renewable energy Directive, that is, European Parliament and Council Directive 2001/77/EC of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market [2001] OJ L283/33.

10

Article 16 (2)(c) of the Renewable Energy Directive

11

Such as Italy and Spain.

242

VOLUME XXVIIII

2.2 National Support Schemes The priority of dispatch principle is not the only feature of the RED that has led to the rapid growth in renewable energy; the obligation for Member States to put in place national support schemes has also played a crucial role.

Since renewable energies are relatively more expensive than conventional fuels, many Member States have put into place various support schemes to accelerate the uptake of these renewable energies to meet the EU’s goal of sourcing 20% of its energy from renewable sources by 2020. These national support schemes, the adoption of which is greatly encouraged by the RED itself, have been instrumental in fostering the strong growth of renewables. The main types of support schemes introduced by Member States took the form of feedin tariffs, feed-in premiums, and quota obligation systems or a combination of any of these.

These support schemes, some of which guarantee high prices to the renewables producer, together with the requirement to dispatch renewable energy with top priority regardless of the volumes offered, created a boom in renewable energy production. When the concept of support schemes was first introduced, the rationale behind it was to compensate for the market failures that left renewable energy at a competitive disadvantage when compared to conventional energy. However, like the priority of dispatch rule, the implementation of these support schemes eventually began to have negative consequences. For some Member States, the success made in terms of renewable energy literally came at a high cost. In the case of Italy, for instance, a generous incentive scheme based on an extremely high feed-in tariff was put in place to encourage investment in solar energy. The scheme resulted to be highly successful as the producer was effectively guaranteed a high price for the energy produced, with no risks. In fact, this scheme was a key part of Italy’s success in its growth in renewables. However, the achievement caused some collateral damage in the sense that, apart from causing distortions in the market, it led the government to incur extremely high costs.

243

ID - DRITT

Therefore, whilst these support schemes have been successful in achieving the intended goal, that is, the promotion of renewable energy, they may have had some adverse implications in so far as the electricity market is concerned. It was these implications that led the EU, back in 2013, to establish guidelines on the reform of support schemes, and the eventual phasing out of feed-in-tariffs as a means of support.12 As will be seen below13, the reform of national support schemes and the abolishment of the priority of dispatch rules, are two of the main changes in the proposed RED.

2.3 National Mandatory Targets As stated above, the current RED sets a binding target of 20% final energy consumption from renewable sources by 2020. To achieve this, the EU imposed on each Member State individual binding targets ranging from 10% in Malta to 49% in Sweden. When the current RED was adopted back in 2009, the sentiment of the EU was that: a framework that includes mandatory targets should provide the business community with the long-term stability it needs to make rational, sustainable investments in the renewable energy sector which are capable of reducing dependence on fossil fuels and boosting the use of new energy technologies.14 One might say the EU has been proved right in this regard as recent reports from the European Commission show that it is well on track to reach its 20% target by 2020. Furthermore, almost all Member States are on track to reaching their 2020 targets.15

12

Feed-in tariffs may still be used for small installations.

13

Vide Section 3.

14

Recital 8 of the current Renewable Energy Directive

15

European Commission, Fact Sheet, Renewables: Europe on track to reach its 20% target by 2020 (Brussels 1 February 2017).

244

VOLUME XXVIIII

2.4 Transport and Biofuels In the transport sector, Member States are required, as per the RED, to have at least 10% of their transport fuels come from renewable sources by 2020. The RED however does not specify the type of biofuel which may be used so long as the 10% comes from a renewable source. The changes which the Recast RED will bring about in the transport sector and biofuels will be discussed further on.

3. The Recast RED – What has changed?

In 2014, the European Parliament and the European Council, as part of the 2030 EU Climate and Energy Framework,16 endorsed a target of 27% renewable energy source share in the final energy consumption by 2030, among other goals. Based on energy system projections, the indications at the time were that the current policies, both at national and EU level, were not sufficient to reach this 27% target; in fact, the European Council was quite certain that unless new policies are put in place, the EU as a whole would achieve approximately 24.3% renewable energy consumption by 2030, which is considerably below the agreed target.17 For this reason, the European Commission was encouraged to review and develop legislation.18 The Recast RED was the result of this exercise.

16

The 2030 climate and energy framework was adopted in 2014. It sets three key targets for the year 2030: (i) at least 40% cuts in greenhouse gases gas emissions (from 1990 levels), (ii) at least 27% share for renewable energy, and (iii) at least 27% improvement in energy efficiency.

17

Explanatory Memorandum of the European Commission to the Recast RED, 23 February 2017.

18

There were various other reasons which led to the review and development of the current legislation, including the need for reform of national support schemes and for increased regional cooperation, as well as to address barriers to investment in self-generation and self-consumption of renewables. Moreover, the current RED had not delivered the intended results in the heating and cooling sector.

245

ID - DRITT

3.1 Union-level target As noted, the Recast RED was released as part of the package on ‘Clean energy for all Europeans’ in November 2016. This is set to change many aspects of the RED, most notably the removal of mandatory national targets.

When the European Council originally endorsed the 27% (by 2030) target back in 2014, it had already envisaged that this target would be an overall EU target which, although binding on the EU as a whole, would be achieved without setting legally binding national targets on the Member States. In fact, the Recast RED does just that. It has created one EU-level binding target, which is not translated into national targets.19 In the view of the Council, this arrangement will provide more flexibility for the individual Member States, providing them with a large discretion on the choice of national measures.20 Member States shall collectively reach a share of at least 27% renewables in the final energy consumption by 2030. This target is to be met by a combination of measures within all energy sectors (electricity, heating and cooling, and transport). It is the view of the European Commission that a EU-level target will create an opportunity to implement a holistic approach to deployment of renewable energy.21 Furthermore, action at Union-level is particularly appropriate given the fundamental differences between the 2020 framework and the 2030 framework. The views of the various stakeholders on the removal of national targets will be discussed below.

It must also be noted that although the Recast RED sets out a Union-wide target, the share of energy from renewable sources in each Member State’s gross final consumption of energy must not be lower than that set out in the current RED. In other words, Member States cannot drop below their current national commitment.

19

Explanatory Memorandum of the European Commission to the Recast RED, 23 February 2017

20

European Parliament, Briefing – EU Legislation in Progress, Promoting Renewable Energy sources in the EU after 2020, 9 March 2017 21

Proposed RED.

246

VOLUME XXVIIII

3.2 National support schemes As was already noted above, with respect to national support schemes, the Recast RED sets out very different bases on which Member States can offer support. The changes however come as no surprise to Member States, as they have long been aware of the need for renewables to compete on the market. In fact, from as early as 2013, the European Commission was advocating for this change and published guidelines on the redesign of national support schemes.

In the Recast RED, Article 422 remains the article dealing with support schemes, however it has been completely reformed, now requiring Member States to design cost-effective support schemes facilitating a market-oriented approach, subject to state aid rules. Member States must therefore ensure that electricity derived from renewable sources, is integrated into the market, and further ensure that producers of renewable energy respond to market signals and maximise their market revenues. Article 4 creates an obligation on the Member State to assess the effectiveness of its support scheme at least every four years, and the continuation of support or the need for a new design will be based on such assessment results.23 This will prevent support schemes from becoming outdated.

As noted briefly above, the decision of the EU to reform the national support schemes appears to be a result of distortions in the market created by the over generous support given by Member States to renewable producers. In fact, as will be seen below, this reform was welcomed by many stakeholders, who believe that whilst this support was then necessary for renewables to integrate into the market, renewables are today flourishing in the market and no longer need the same level of support.

22

European Commission Proposal for a Directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources (recast) 2016/0382(COD) Article 4.

23

ibid.

247

ID - DRITT

With regards to support schemes, the Recast RED introduces an important novelty: it requires Member States gradually to open up support schemes to electricity generating plant located in other Member States. The Recast RED provides that at least 10% of newly supported capacity must be open to installations located in other Member States in each year between 2021 and 2025, and at least 15% in each year between 2026 and 2030.24 This percentage can be achieved through various measures such as open or joint tenders and joint support schemes.

3.3 Priority of dispatch Another notable change brought about by the Recast RED is the abolishment of the priority rules. As from 2021, system operators will no longer be under any obligation to dispatch renewables with priority, hence eliminating the discrimination against conventional generators. To be precise, the priority rule has not been entirely abolished as it leaves some exceptions with regards to existing and small installations. These exceptions however will form part of the recast electricity market Directive and will not feature in the Recast RED. The removal of these rules has created quite a stir in the renewables industry which believes that without this preferential treatment, renewables are likely to suffer. This will be discussed in more detail below.25

3.4 Transport and Biofuels Under the current RED, Member States have a general obligation with respect to transport to ensure that they have a minimum renewables share of 10%. However, the Recast RED introduces signif24

Loyens & Loeff, ‘A closer look at the Commission’s proposal for a recast Renewable Energy Directive’ (24 August 2017) <https://www.loyensloeff.com/nl-nl/news-events/news/energy-newsflash-a-closer-look-at-the-commission-s-proposal-for-a-recast-renewable-energy-directive> accessed 11 March 2018.

25

Vide Section 5.

248

VOLUME XXVIIII

icant changes, most notably the phasing out of food and feed-based (or conventional) biofuels in order to encourage the use of modern or advanced biofuels. The Recast RED establishes two new targets: the first lowers the cap on the final energy consumption accounted for by biofuels to 7% by 2021 which is to be reduced annually to 3.8% by 2030, and the second increases the minimum share of energy derived from advanced biofuels from 1.5 % in 2021 to 6.8% in 2030.26 In essence therefore, the Recast RED aims to phase out food- and feed-based biofuels whilst promoting the use of more environment friendly biofuels. Prima facie, this change would appear to be positive from a climate change mitigation perspective, however, as will be discussed further on, the reaction of the biofuels industry strongly suggests otherwise.

3.5 Self - Consumption Without going into detail, one other aspect of the Recast RED worth mentioning is the newly introduced principle of renewable self-consumption.27 The EU foresees European consumers as active and central players on the energy markets of the future and accordingly, obliges Member States to ensure that self-consumers who produce renewable energy can consume without undue restrictions and can sell the excess production of energy to the grid.28 Member States must also ensure that renewable energy communities can participate in the market; they can generate, store and sell renewable energy, without being discriminated by greater competitors.29 26

Transport and Environment, ‘How to make the Renewable Energy Directive (RED II) work for renewable lectricty in transport’(June 2017) <https://www.transportenvironment.org/sites/ te/files/publications/2017_06_Electricity_in_REDII_0.pdf> accessed 11 March 2018.

27

European Commission Proposal for a Directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources (recast) 2016/0382(COD) Article 21 28

European Commission, ‘Inception Impact Assessment; Renewable Energy Package: New Renewable Energy Directive and Bioenergy Sustainability Policy for 2030’ (2015) <http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_ener_025_cwp_renewable_energy_package_ en.pdf> accessed 11 March 2018.

29

ibid.

249

ID - DRITT

The above sets out a brief overview of just a few of the changes brought about by the Recast RED and which may have an effect on the EU’s climate goals. There are of course other aspects of the proposal which are relevant to climate change, such as heating and cooling, however it is not possible to address all of these in this article. The potential effects of the changes highlighted above will be discussed below.

4. Climate Change Law and Policy There is little, if any, doubt that the RED has played a major role in the battle against climate change. A revision of the RED would naturally beg the question whether such change will be beneficial or detrimental to this on-going battle. However, before entering into such discussion, it is worth taking a brief look at other legal instruments which have contributed, and which continue to contribute, towards climate change mitigation. This overview will serve as a preamble to the discussion which will follow, as the importance of the Recast RED will, to some extent, be defined by the suitability or otherwise of climate change law as a whole.

In 2011, the European Commission established a ‘Roadmap for a low carbon economy by 2050’30, in which it commits to a cost-efficient pathway to reach an 80% (compared to 1990 levels) target by 2050. The EU believes that this can be achieved through domestic reductions alone and that all sectors must participate to make this possible.31 In line with this long-term objective, the EU set out a 2030 climate and energy framework (replacing the 2020 framework). By 2030, three targets must be achieved: the first is a 40% cut in greenhouse gas emissions from the 1990 levels; the second is a 27% share for renewable energy; and thirdly, a 27% improvement in energy effi30

European Commission, ‘A Roadmap For Moving To A Competitive Low Carbon Economy In 2050’ (2011) <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0112:FIN:en:P DF> accessed 11 March 2018.

31

European Commission, ‘Climate Action, 2050 Low carbon Economy’ <https://ec.europa.eu/ clima/policies/strategies/2050_en> accessed 11 March 2018.

250

VOLUME XXVIIII

ciency.32 These goals naturally cannot be achieved without the adoption of effective laws and policies. One such law is the Directive establishing the Emissions Trading Systems33, which has been described as the foundation of the EU’s drive to reduce its emissions of greenhouse gases, including emissions from aviation activities.34 In brief, the ETS establishes a ‘cap-and-trade’ approach. What this means is that a cap is set at EU level on the overall amount of greenhouse gases that can be emitted and this cap is gradually reduced over time so that total emissions fall.35 Within the cap, companies receive or buy emission allowances which they can trade with one another. A company would annually report its emissions and surrender enough allowances to cover all its emissions. In the event that a company reduces emissions, it may keep the remaining allowances for future needs or may sell them to another company short of allowances.36 The ETS is regularly revised and is now in its third phase. For the most part it has been successful and has proved that putting a price on carbon and trading,will reduce emissions. The European Commission estimates that by 2020, emissions will be 21% lower than in 2005. The Commission intends to revise the system for the period post 2020, which if implemented, would reduce emissions by 43%.37 Another key player in the climate change fight is energy efficiency.

This is one of the most significant means by which climate change can be prevented and is crucial in decreasing the use of fossil fuels. The 32

‘2030 Climate & Energy Framework - Climate Action - European Commission’ (Climate Action - European Commission, 2017) <https://ec.europa.eu/clima/policies/strategies/2030_en> accessed 11 March 2018.

33

Hereinafter referred to as the ‘ETS’.

34

ibid.

35

‘The EU Emissions Trading System (EU ETS) - Climate Action - European Commission’ (Climate Action - European Commission, 2017) <https://ec.europa.eu/clima/policies/ets_en> accessed 11 March 2018.

36

ibid.

37

ibid

251

ID - DRITT

Energy Efficiency Directive38 contributes to tackling climate change by establishing a target of 20% for energy efficiency by 2020. In November 2016, the Commission proposed an update to the Energy Efficiency Directive which establishes a more ambitious energy efficiency target of 30% by 2030.39 This Directive provides a set of measures for the target to be met. These measures focus on: improving energy efficiency in general and in buildings, improving energy performance of products, and financing for energy efficiency. According to the European Commission, there has been a considerable decrease in EU energy consumption following the implementation of the Energy Efficiency Directive and it believes that the EU will meet its targets as long as Member States continue to implement energy efficiency measures in all sectors.

With respect to efficiency in buildings in particular, the EU takes the view that emissions from houses and office buildings can be cut by around 90% in 2050 through the refurbishment of old buildings and the substitution of fossil fuels with renewables, for heating and cooling.40 In the 2030 climate and energy policy framework, the Commission also considered the contribution which carbon capture and storage (CCS) can make to combat climate change. Despite the attempt to thoroughly reduce emissions by reaching the limits of efficiency, CCS may be the only definite option to absolutely reduce direct emissions on such a high scale.41 CCS is a technique that captures carbon dioxide produced for the use of fossil fuels, emitted by large point sources. It blocks carbon dioxide from escaping into the atmosphere and instead these emissions are compressed, transported and stored far 38

Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC 39

Energy Efficiency Directive - Energy - European Commission’ (Energy, 2017) <http://ec.europa.eu/energy/en/topics/energy-efficiency/energy-efficiency-directive> accessed 11 March 2018.

40

ibid

41

Carbon Capture And Geological Storage - Climate Action - European Commission (Climate Action - European Commission, 2017) <https://ec.europa.eu/clima/policies/lowcarbon/ccs_ en> accessed 11 March 2018.

252

VOLUME XXVIIII

below the earth’s surface.42 This technology could seriously mitigate climate change and aid the EU in reaching its long-term emission reduction targets. However, the costs of capture and storage technology are relatively high and have therefore been somewhat of a barrier to the advancement of this technology.43 Nevertheless, the contribution which this technology could lend towards climate change mitigation should by no means be discarded.

The Commission has also adopted an EU Adaptation Strategy and wants all its Member States to adopt national plans to cope with the inevitable impacts of climate change by 2017. A number of Member States have already developed adaptation strategies. However such policies do not avoid climate change but rather try to adapt and deal with the damage that is already done, and therefore are of insignificant importance when discussing their role in combating the effects of climate change.

It is quite clear from the above overview that the RED is not the sole contributor to climate change mitigation at EU level and that there are various instruments and policies, as aforementioned, within the climate change framework. These are continuously being revised and updated at EU and national levels to reach new and more ambitious targets. However, the RED remains a major player in the EU’s plan to tackle climate change and remains at the centre of the clean energy package44. It is no surprise therefore that its revision has attracted so much attention.

42

What Is CCS? – The Carbon Capture & Storage Association (CCSA) (Ccsassociation.org, 2017) <http://www.ccsassociation.org/what-is-ccs/> accessed 11 March 2018.

43

‘Carbon Capture And Geological Storage - Climate Action - European Commission (Climate Action - European Commission, 2017) <https://ec.europa.eu/clima/policies/lowcarbon/ccs_en > accessed 11 March 2018.

44

European Commission - PRESS RELEASES - Press Release - Achieving Global Leadership In Renewable Energies <http://europa.eu/rapid/press-release_MEMO-16-3987_en.htm> accessed 11 March 2018.

253

ID - DRITT

5. Will the Recast RED help or hinder the battle against climate change?

The Recast RED has been both welcomed and criticised since its release and many stakeholders remain divided on a number of issues, such as the exposure of renewables to market conditions and the phasing out of conventional biofuels. As expected, a lengthy consultation process was undertaken prior to the adoption of this proposal, wherein Member States, national regulatory authorities, environmental NGOs and various sectors of industry all participated.

This section of the article will take a look at the views of some of the stakeholders and attempt to answer the question whether the changes proposed are adequate to achieve the EU’s climate goals for 2030 and, ultimately, 2050.

As noted above, when the European Council endorsed the 27% by 2030 target back in 2014, indications at the time showed that current laws and policies would be not enough to achieve this goal; revisions would have to be made to existing legislation, and new policies would have to be adopted at national level for this target to be realised. However, the Recast RED has left many with doubts as to whether it could, in the long run, fulfil the EU’s decarbonisation strategy and meet the goals of the Paris Climate Agreement.45 In particular, there is much scepticism surrounding the decision to replace the national mandatory targets with a union-level target; a decision which has led stakeholders to demand the reintroduction of the national targets.46 According to the European Commission however, a union-level target will give Member States freedom to choose their national measures.

It will also tackle existing barriers to public and private investments, addressing the lack of coordination between various authorising bodies at national level and stimulating the administrative capacity to implement cross-border projects.

45

The Paris Agreement was signed 22 April 2015 an entered into force on 4 November 2016. It is an agreement within the United Nations Framework Convention on Climate Change (UNFCCC) and essentially addresses greenhouse gas emissions mitigation 46

Alex Benjamin Wilson, Promoting Renewable Energy Sources In The EU After 2020 (European Parliament 2017

254

VOLUME XXVIIII

This view is backed by the electricity industry which supports the proposed EU-wide target, holding that a more regional approach will avoid uncoordinated national developments and further integrate renewables into the market.47 On the other hand, there is the renewable energy industry which has expressed some doubt as to whether the target can be achieved in the absence of national binding targets. As the Recast RED stands, Member States will have an obligation, post 2020, to maintain their individual 2020 commitments, but nothing more.

What is particularly interesting to note is that the European Parliament and the European Council have taken diverging positions in this regard with the European Parliament advocating, quite strongly, in favour of individual national targets and the Council believing firmly that union-wide action is necessary for the achievement of the 2030 framework.48 Also, the European Parliament has always pushed for a higher target than 27%; originally it had proposed 30%, today however it is proposing a more ambitious target of 35%. Its position would appear to be in line with that of many stakeholders who take the view that the current target of 27% is far too low. One stakeholder has gone as far as to say that ‘the proposals as they stand would cause Europe to drift dangerously off course from the global shift to renewable energy that is happening everywhere,’49and has described the 27% target as ‘barely more than business-as-usual’.50 The renewable energy industry51 together with a number of environmental NGO’s shares 47

Eurelectric position paper, European Commission legislative proposal to revise the Renewable Energy Directive, April 2017, page 3. EnergiNorge also supports this as it gives room for a flexible and cost-effective approach across the EU. 48

This position was reaffirmed in several resolutions passed under the current legislature, including the resolution of 14 October 2014, ‘Towards a new international climate change agreement in Paris’, and the resolution of 15 December 2015, ‘Towards a European Energy Union’.

49

Climate Action Network Europe (European NGO Coalition on Climate and Energy), Lacklustre Commission energy package inconsistent with Paris Agreement, 30 November 2016, <http:// www.caneurope.org/publications/press-releases/1280-energy-package-inconsistent-with-paris-agreement> accessed 11 March 2018.

50

Ibid

51

European Renewable Energies Federation (EREF), ‘The Commission’s clean energy package needs more ambition to deliver European leadership in renewable energy’ (1 December 2017).

255

ID - DRITT

this sentiment, holding that the 27% target is far from adequate.52 There is also a notable divide among stakeholders with regard to the removal of the priority of dispatch rule. It will come as no surprise that the electricity industry has welcomed a level playing field for all generators whilst the renewable energy industry and the environmental NGOs have heavily criticised it. Some have even described its removal as being at odds with Europe’s long-terms plans to decarbonise the market. The European Renewable Energies Federation stated: the current proposals include the possibility to continue subsidizing coal for the decades to come, but still limit the access of renewables on the market by proposing restrictions on priority access. It seems that the European Commission has not yet fully understood the wishes of its own constituency.53 However, there are many stakeholders who support this change because of the imbalances it has created in the functioning of the electricity market.54 One stakeholder held that the European Commission should abolish even the exemptions in this respect and simply trust the market.55 This position is shared by the vice-president of the European Commission for the Energy Union, who argues in favour of the abolition of grid priority. This change will establish a level playing field for energy generators and ensure that negative prices, where more 52

Greenpeace, ‘Europe risks putting renewable energy transition into the hands of reluctant power companies’ November 2016 <http://www.greenpeace.org/eu-unit/Global/eu-unit/reports-briefings/2016/20161127%20winter%20package%20media%20briefing.pdf> accessed 11 March 2018 53

European Renewable Energies Federation (EREF), The Commission’s clean energy package needs more ambition to deliver European leadership in renewable energy, 1 December 2017.

54

Eurelectric, for instance, believes that there is no longer the need to have positive discrimination for renewables and that dispatch management should be based only on market mechanisms.

55

EnergiNorge, ‘Clean Energy for all Europeans’ (18 January 2017)<https://www.energinorge. no/contentassets/9394e6aabc114f3bb31e938ac17e8691/energi-norges-innspill-til-oed-om-vinterpakken.pdf> accessed 11 March 2018.

256

VOLUME XXVIIII

energy is generated than can be sold, is prevented and the system is stabilised. By way of example, in Germany, which is a front runner in renewables, a number of ‘must run’ conventional power plants have been found to contribute significantly to negative prices in hours of high renewable generation and low load. These negative prices are potentially worsening the financial outlook for both renewable and conventional generators, and could increase system stress and costs of interventions by the system operator.56 The Commission believes that the abolition of the current dispatching regime would encourage market integration and stability without negatively impacting the EU’s climate change targets. Those advocating for the abolishment of this rule have held that because of the concerns over climate change and the decline in the cost of renewable energy, conventional energy has been put to the side. With the eventual phase out of fossil fuels, and overpowering of renewable energy, there is really no need any longer for priority.57 The distortions which the priority of dispatch rule is creating in the electricity market, are undisputed; yet there still remains a lot of support for its reintroduction in the Recast RED. This support comes not only from the renewable energy industry and the NGOs, but Members within the European Parliament are also advocating for this, with one Member stating that ‘one of the key issues which we have to fight for now to keep in the new legislation is priority access and dispatch’ and argues that fossil fuels would take over with the removal of the current grid regime.58 Whether this will be the case is, at this early stage, difficult to say. It is true that renewables have integrated well in the market over the last few years, however whether they will be able to compete in the market without preferential treat56

European Commission, ‘Commission staff working document impact assessment, accompanying the document Proposal for a Directive of the European Parliament and of the Council on common rules for the internal market in electricity (recast), November 2016.

57

‘Renewables To Overpower Conventional Source Of Energy By 2050 In US: Report | Energynext’ (Energynext, 2017)<http://www.energynext.in/renewables-overpower-conventional-source-energy-2050-us-report/> accessed 19 September 2017 58

Claude Turmes, member of the European Parliament and representative of the Luxembourg Green party.

257

ID - DRITT

ment remains to be seen.

The priority rules are not the only preferential treatment which renewables currently enjoy. Renewables have received generous support from Member States through the implementation of national support schemes. These schemes however – at least in their current form - will no longer be applied once the Recast RED comes into effect. Any support given by member States must now be applied in a non-discriminatory manner and must be in conformity with state aid rules. In this regard, stakeholders mainly highlighted concerns about possible retroactive changes which should be avoided in order to strengthen investor confidence. In fact, the application of retroactive changes by Member States has created much uncertainty for investors, and the European Commission is seeking to remedy this through the Recast RED by setting out clear rules on support schemes.59 Apart from this, the renewable energy industry maintains that current forms of support must remain available to small installations as these are unlikely to be successful if they are forced to compete in the market without assistance.

There is no doubt that the removal of the priority rules and the reform of the support schemes are two crucial elements of the RED and the cause of the success which renewables enjoy today. The Recast RED will however change this, leaving renewables to fend for themselves. Whether this will put the success of renewables in jeopardy of course remains unknown.

The final change, for purposes of this discussion, is one which the Recast RED introduces in the transport sector. The Recast RED has clearly laid emphasis on the deduction of emissions in this sector by reducing the use of conventional biofuels and promoting instead advanced biofuels from non-food crops, residue and waste.60 The European Commission takes the view that conventional biofuels are not cost-competitive with fossil fuels and some only yield minor green59

Explanatory Memorandum of the European Commission to the Recast RED, 23 February 2017 60

Advanced biofuels also known as second generation biofuels are produced from woody crops (non-food part of crops) and agricultural residue and waste.

258

VOLUME XXVIIII

house gas emission savings. The Recast RED has taken into consideration the fact that conventional plants are currently running at a lower capacity and making lower profits. On the other hand, advanced biofuels can be produced sustainably and cost-effectively, with an overall positive effect on the environment and climate change.

This change in the use of biofuels would appear to be a positive step towards reaching the EU’s emission targets, however not all stakeholders would agree. The reduction in conventional biofuels has been heavily criticized by the European Biofuels Industry as the proposal backtracks on the compromise agreed by the EU institutions as part of the revision of the Renewable Energy Directive 2015. One stakeholder responded by saying that it felt betrayed by the decision and that ‘the Commission is totally detached from reality if it expects that its proposal will result in significant investments in advanced biofuels, given that most of the potential investors have already been burned by the Commission’s previous biofuels U-turns.’61 Thus, the phasing out of all conventional biofuels may actually result in an increase, rather than a decrease in fossil fuels in transport.62 It would seem that if one were to take seriously the words of these stakeholders, the Recast RED could end up having a negative effect in the context of climate change, as the consumption of fossils would increase whilst the use of biofuels and other renewables in the transport sector would break down.63

6. Conclusion 61

The European renewable ethanol association, reported by Liz Gyekye, ‘Biofuels Industry Slams European Commission’s Revised Renewable Energy Directive’ [2016] Biofuels International <https://biofuelsnews.com/display_news/11447/biofuels_industry_slams_european_ commissions_revised_renewable_energy_directive/> accessed 11 March 2018.

62

Liz Gyekye, ‘Biofuels Industry Slams European Commission’s Revised Renewable Energy Directive’ [2016] Biofuels International <https://biofuelsnews.com/display_news/11447/biofuels_industry_slams_european_commissions_revised_renewable_energy_directive/> accessed 11 March 2018.

63

ibid

259

ID - DRITT

One might say that the fate of renewables lies in the hands of the Recast RED. This piece of legislation has been the subject of extensive debate over the last few months, not only in the European Council and the European Parliament, but also among the various stakeholders. The 27% renewables target has possibly gathered the most attention, or rather criticism, with one of its greatest critics being the European Parliament, which has now proposed an even more ambitious target of 35% for renewables, which is to be translated into national binding targets, as envisaged by the current RED.64 The European Council, which has also proposed a number of changes to the draft, appears to have no intention of increasing the 27% target, and retains its position of having one Union-wide target. However, there appears to be significant pressure from stakeholders to increase the target, as many believe that such a target is not consistent with the EU’s ultimate goal to decarbonise the market. This pressure may not be enough to increase the target to 35% but it may be enough to move it upwards, even if only slightly, from 27%. Surely, regardless of the target agreed on, if this target is not translated into national binding targets, there is a real risk that at least some Member States will do no more than maintain their 2020 position; this would possibly jeopardise the achievement of the target.

With regards to the reform of support schemes, these changes have been a long time coming. When the concept of support schemes was first introduced, the rationale behind it was to compensate for the market failures that left renewable energy at a competitive disadvantage when compared to conventional energy. However, the situation today is quite different. In fact, it would appear to be the contrary, in that the market is now facing distortions as a result of the over- generous support which renewables have received. To be fair, it is not only the financial support given to renewables which has caused market distortions but a combination of this support and the priority rules. The renewable energy industry has shown some doubt as to whether renewables will continue to penetrate the market with64

In the European Parliament, the Recast RED was referred to the ITRE Committee, where rapporteur José Blanco López published a draft report in May 2017. Amendments were tabled by early July 2017 and these are currently being negotiated in the ITRE Committee, where a final vote is scheduled at the end of November 2017.

260

VOLUME XXVIIII

out this positive discrimination; however it is quite certain that these rules will be removed. Whether this will to be to the detriment of climate change mitigation, only time can tell.

At this early stage, one can only speculate about the success or otherwise of the Recast RED, which as of today, still remains subject to amendment. What is quite certain however, is that a number of its key features, which have been instrumental in reducing emissions and mitigating climate change, will change, with the result that renewables will be left, almost completely to fend for themselves.

261