No EU law can change Maltese law on abortion - Dr Simon Busuttil
by di-ve news 

Foreign doctors will not be allowed to offer "abortion services" in Malta
Sunday, December 22, 2002 
Time: 2000CET 

“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.”