Remedies under Maltese law for wrongful state action in breach of EU law : a case of crying over spilt milk?

Abstract

Malta is an EU Member and is thus obliged to implement EU law in its national law. However, the case might well arise that an EU directive is not transposed into Maltese law or it might be partially transposed or, in certain instances, wrongly transposed. There can be cases where certain Maltese national laws are repugnant to EU law – for instance an EU regulation – but the national law has not been repealed, amended or brought in concordance with the EU norm. It might be that a national court applies Maltese law and, in doing so, might be unaware of the existence of an EU decision or regulation on that matter. So there can be a number of scenarios where one of the three organs of the state of Malta might end up not complying with EU law. This chapter thus proposes to reply to the question: ‘how can an individual obtain redress from wrongful state action in Malta through recourse to Maltese law for an infringement of European Union law?’ In other words, how easy, if at all, is it for an individual to obtain redress against the State of Malta in the case of a breach of EU law without resorting directly to EU law? What are the applicable Maltese rules in this respect? What will not however be investigated in this chapter is state liability under EU law as that is a subject which requires a study in its own right. Hence, this chapter will avoid considering how EU law can be implemented in Malta by recourse to EU law and EU institutions.