Malta / First Hall of the Civil Court / 1017/2019

Engerer Sarah vs Onor Ministru tal-Ġustizzja et Avukat Ġenerali.
Policy area
Employment and social policy
Deciding body type
National Court/Tribunal
Deciding body
First Hall of the Civil Court
Typ
Decision
Decision date
10/06/2021
ECLI (European case law identifier)
ECLI:MT:CIVP:2021:127155
  • Malta / First Hall of the Civil Court / 1017/2019

    Key facts of the case: 

    In 2014, Mrs. Engerer, a qualified barrister in the UK, began working in Malta as a “barrister” after she was given a certificate in line with the national legislation that provides for the mutual recognition of qualifications of the legal profession across EU Member states (transposing the EU Directive 2005/36/EC). In March 2015, Mrs. Engerer filed the first application to the President of the Republic to revert to the Maltese title “avukat” (lawyer). However, in September 2019, she received a letter from the Attorney General stating that she could not partake in the Maltese legal profession unless she sat for the warrant exam.

    On 2 September 2019, she filed proceedings in the First Hall of the Civil Court against the designated authorities (Justice Minister Attorney General). She claimed that the failure of the authorities to give a decision or to process the request within a reasonable time constitutes an infringement of her right to engage in work, right to good administration, right to an effective remedy, and to a fair trial as stated in articles 15, 41, and 47 of the Charter.

    Besides that, the dispute of the parties further mainly revolved around two EU Directives (Directive 98/5/EC and Directive 2005/36/EC). The plaintiff claimed that the defendants failed to apply the national law correctly in accordance with these Directives, whereas the defendant opposed these claims.   

     

    Key legal question raised by the Court: 

    Does Article 81 of Chapter 12 of the Laws of Malta, Code of Organization and Civil Procedure, infringe the provisions of Directive 98/5/EC or Directive 2005/36/EC? Did the authorities act in breach of Articles 15 (freedom to choose an occupation and right to engage in work), Article 41 (right to good administration), and Article 47 (right to an effective remedy and to a fair trial) of the Charter? 

    The Court questioned whether Article 81 of Chapter 12 of the Laws of Malta, Code of Organization and Civil Procedure, infringed the provisions of Directive 98/5/EC (on the facilitation of practicing the profession of a lawyer on a permanent basis in a Member State other than that in which the qualification was obtained) or Directive 2005/36/EC (on the Recognition of Professional Qualifications). Article 81(1)(d) of Chapter 12 of the Laws of Malta stipulates that “No person shall be entitled to obtain the warrant referred to in Article 79 unless he has obtained the academic degree in law following the provisions of the Statue of the University of Malta, or such other qualification as the Minister, after consultation with the Committee, may from time to time prescribe, or a comparable degree from such other competent authority in accordance with the principles of mutual recognition of qualifications, after having read law in Malta or in a Member State”.  

     

    Outcome of the case: 

    The Court ruled that Article 81 of Chapter 12 of the Laws of Malta, Code of Organization and Civil Procedure, does not infringe Directives 98/5/EC and 2005/36/EC. The Court stressed that the mentioned Directives were correctly transposed into Maltese law. In particular, the judge stated that according to Article 13 (1) of Directive 2005/36/EC, host Member States are allowed to require the same conditions for professionals that apply to their nationals. Therefore, Mrs. Engerer must take the warrant exam as prescribed by Article 81 of Chapter 12 of the Laws of Malta in order to use the title “avukat” (a lawyer).

    Regarding the alleged infringement of the plaintiff's right to engage in work, right to good administration, right to an effective remedy, and to a fair trial, as per articles 15, 41, and 47 of the Charter, the Court refrained from elaborating on this point. Eventually, the Court dismissed all the plaintiff's claims, and therefore affirmed that the conduct of the authorities complied with the national law, as well as EU Law.