European Commission slaps Malta with five infringement proceedings

Five new cases of infringement of EU law have been opened against Malta in the European Commission’s February 2023 infringement package.

The five cases cover a variety of issues including deficiencies in the protection of the marine environment, a failure to finalise water management plans, the derogation for the spring hunting of turtle doves, the total ban on legal services advertising and a failure to correctly implement laws fighting child sex abuse.

Malta’s current total ban on advertising for lawyers and advocates has been a matter of debate for some time.

The Commission’s formal notice argues that Malta’s total ban infringes on the EU’s services directive, potentially prohibiting lawyers and advocates from fully and competitively participating in the EU’s single market economy.

Malta’s ban, currently reflected in rule two of chapter one, part two of the code of ethics for advocates has been a matter of debate for some time. The rule states that “Advocates shall not in any manner publicise their practices or permit other persons to do so on their behalf or in their interest.”

The European Commission describes the rule as being contrary to the Services Directive’s Article 24(1), which states that “Member States shall remove all total prohibitions on commercial communications by the regulated professions”.

In 2019, The Malta Chamber of Advocates released a consultative paper discussing the validity of the regulation. The paper described it as having been initially intended to maintain a sense of dignity and decorum for the profession, but it lamented its restrictiveness in the modern market.

The paper comments that in countries where similar regulation is more liberalised, the focus falls instead on truthful advertising rather than on a total prohibition.

The rest of the cases cover both newly opened infringements as well as increased action on existing ones.

In relation to the marine environment, a letter of formal notice was sent on Malta’s late reporting on programmes and monitoring measures for the Marine Strategy Framework Directive.

Malta was also reprimanded on its late review, adoption and reporting of plans relating to river basin management and flood risk management in another formal notice.

Malta was sent its second letter of formal notice in relation to the incorrect implementation of an EU directive aimed at combatting child sexual abuse in Maltese legislation. The first letter related to the case was sent in July 2019.

Finally, Malta received a second letter of formal notice for its derogation from the EU Birds Directive allowing for the spring hunting of vulnerable turtle doves. This practice was reintroduced by Robert Abela’s government just a week and a half before the 2022 general election.

Within the European Commission’s infringement proceedings, letters of formal notice calling attention to the issue are the first step in a three step process. These are then followed by a reasoned opinion, which is a formal notice to comply with EU law. If this is not adhered to, member states are taken to the European Court of Justice.