Opinion: Edward Scicluna, the modern St Paul

Many are familiar with Paul the Apostle’s story of his landing in Malta in 60 AD. Faced with the accusation of alleged crimes in the Roman province of Judea, Paul of Tarsus asserted his Roman citizenship and, therefore, his right to be tried under Roman law in Rome.

Edward Scicluna is the current Governor of the Central Bank of Malta and, thanks to that position, a member of the Governing Council of the European Central Bank. Calls for his resignation have been ongoing ever since a Maltese court decided that he should face trial in the Vitals hospital scandal.

His response was very similar to that of Paul of Tarsus. “We have our own rules,” Scicluna replied. The “we” he refers to is the Central Bank and the rules generally described as “the EU Treaty”.

Are the rules an obstacle to his removal? We are in the realm of rules governing the European Central Bank, which has guaranteed central banks in the EU a strong and independent position ever since the Maastricht Treaty introduced an Economic and Monetary Union.

The mandate of the ECB and Central Banks within the Monetary Union includes guaranteeing price stability, and other economic operations. This means they must be free from political interference.

In other words, the protection afforded to national Central Banks and their governors is necessary for the proper functioning of the EU’s economic and monetary union.

Among these safeguards are the security of tenure and protection from the influence of the Governors themselves, which, exceptionally in the EU system, is guaranteed directly by the European Court of Justice.

Central to this is a particular rule found in the Statute of the European Central Bank and concerning National Central Banks. This rule (Article 14.2) clearly states: “A Governor may be relieved from office only if he no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct.”

To begin with, it is important to distinguish between the concept of “being relieved from office” and that of “resignation”.

The decision to relieve a Governor from his duties is taken by someone other than the Governor himself. This could be the national government or, as happens in some cases, a national Anti-Corruption Authority.

A resignation, on the other hand, comes from the Governor himself. Nothing precludes a Governor such as Edward Scicluna from resigning of his own accord should he find it morally unsustainable to maintain his position while the criminal case continues.

So what of the relief from his duties? There has been a precedent involving a former Central Bank Governor in Latvia, Ilmārs Rimšēvičs.  He was suspected of having sought and accepted a bribe in 2013 to exert influence in favour of a private Latvian bank.

The Latvian Anti-Corruption Office (KNAB) ordered his suspension from his duties and prohibited him from leaving Latvia without prior authorisation.

Rimšēvičs challenged this decision before the EU Court of Justice in what would become a landmark case on the matter (Joined Cases C‑202/18 and C‑238/18, Ilmārs Rimšēvičs and European Central Bank vs Republic of Latvia).

He argued that he was ‘relieved from office’, which according to Article 14.2 of the Statute would only be lawful if he was ‘guilty of serious misconduct’.

A national measure depriving a Governor of his position had to be justified before the CJEU. Based on the evidence before it, the CJEU found that the Republic of Latvia had not established that Rimšēvičs’ removal from office was based on “the existence of sufficient indications that he has engaged in serious misconduct” as described in Article 14.2.

The Court, therefore, annulled the decision to prohibit the Governor from performing his duties temporarily.

Where does that leave us with Edward Scicluna and his “appeal to EU rights”?

Rimšēvičs was eventually found guilty of corruption in the national proceedings, and the CJEU case only served as a temporary reprieve. In the case before the CJEU the Latvian government failed to provide sufficient evidence to show that it possessed the information that led it to conclude that Rimšēvičs had engaged in serious misconduct.

This does not necessarily mean that a similar test if applied to Scicluna’s current predicament would have the same outcome.

A national court has already found sufficient evidence to press charges. While this is not necessarily a sentence of guilt, it is still open to interpretation as a “sufficient indication of serious misconduct”, in the words of the CJEU.