No EU law can change Maltese law on abortion - Dr Simon
by di-ve news
Foreign doctors will not be allowed to offer "abortion services" in Malta
Sunday, December 22, 2002
“The Protocol on Abortion, which will be annexed to Malta’s Treaty, gives legal
certainty that EU law, present or future, cannot change Maltese law on abortion,”
Malta-EU Information Centre (MIC) head, Dr Simon Busuttil wrote in the
explanation to the outcome of negotiations on the Protocol on Abortion.
“In Malta, a major concern over EU membership related to the sensitive issue of
the legalisation of abortion. Abortion is illegal in Malta and punishable at law
under Section 241-243A of the Criminal Code. On its part, the EU has no laws on
the legalisation of abortion. Nor does it have any competence to make such laws.
This means that a country that joins the EU is not required to legalise abortion
as an obligation of membership.
However, the fact that all EU countries, except for Ireland, have already
legalised abortion gave cause for concern that the EU might indeed call upon its
members to legalise abortion at some point in future. This concern was fuelled
by the intervention of the European Parliament, which, from time to time, enters
the debate by adopting resolutions calling for the legalisation of abortion.
Although not legally binding, these resolutions imply political pressure.
During the course of negotiations, Malta therefore sought to address these
concerns by seeking a clear legal arrangement that guarantees Malta’s position
on abortion, both now and in future. In other words, Malta wanted an arrangement
that confirms that if it joins the EU, it would not be obliged to legalise
abortion, whether now or in future.
An agreement was finally reached on a Protocol on Abortion. This protocol will
be attached to Malta’s Accession Treaty. 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. The text of the Protocol is the following:
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.
It is not possible for foreign doctors to offer "abortion services" in Malta
under the EU principle of free movement of persons or the free movement of
services, that is the right to work or offer services in any EU country. This is
because services offered are still subject to the laws, including the public
policy, of the country where they are offered. In Malta’s case, abortion is
illegal and remains illegal irrespective of whether it is performed by a Maltese
or a foreign practitioner.
Malta is not the first country to negotiate a protocol on abortion. Ireland,
which has been a member of the EU since 1973, also has a protocol on abortion.”