An injunction against a board does not stop Parliament

The Constitutional Court on 16 March 2026 dismissed an appeal by the Malta Association for Professional Engineers, a trade union, which sought to annul Act XLVIII of 2021 amending the Engineering Profession Act (Chapter 321 of the Laws of Malta). Chief Justice Mark Chetcuti, Mr Justice Anthony Ellul and Mr Justice Robert G. Mangion held that a court injunction against the engineering board did not bind the minister, and so did not stop the legislative process. The court also held that the consultation duty under the proportionality-test law did not apply, because the amendments widened access to the profession.

The facts

On 18 June 2015 the European Commission opened infringement proceedings against Malta under the Services Directive in the field of regulated professions. The transport ministry, the Engineering Profession Board and the Chamber of Engineers worked for years on amendments to Chapter 321. The union, set up in 2019, objected to the draft and asked for consultation.

In August 2020 a consolidated draft went to the Commission. On 5 November 2020, on the union's application, the First Hall of the Civil Court granted a warrant of prohibitory injunction against the board and its members, stopping them from releasing or promoting the amendments. The Commission accepted the draft on 11 December 2020.

The minister then responsible presented the bill, which had its first reading on 16 March 2021. The union declined an invitation to a meeting in Parliament, saying the only proper forum was the court. The House adopted the bill on 14 July 2021, and the Commission closed the infringement case on 2 December 2021.

The union, acting through its president, sued the State Advocate, the Prime Minister, the minister, two permanent secretaries and the Speaker. It argued that Parliament ignored mandatory consultation and pressed on despite the injunction. The First Hall (Constitutional Jurisdiction) rejected the claim on 12 February 2025, and the union appealed.

What the court held

On the first ground, the court found that the board never acted alone. The ministry kept the draft under its own scrutiny, and the board's part ended when the draft went to the Commission, before the injunction issued. From then on the ministry and the minister carried the bill.

On the second ground, the union argued that the board acted under a delegation from the minister, so the injunction bound the minister and Parliament too. The court rejected this. It stated the principle plainly: “Ordni ta’ Qorti jorbot biss lill-persuni li huma parti” (a court order binds only the persons who are parties to it). The minister was not a party to the warrant.

Article 2 of Chapter 321 defines “Minister” to include the board to the extent of functions delegated to it. The word “Board”, however, means only the board as composed under article 6, and nothing showed that the minister delegated any power to it. The ministry had consulted the board voluntarily. The argument that the State is one did not help, because the law gives the board and the minister different functions.

The union also invoked Directive (EU) 2018/958 on a proportionality test before new regulation of professions, which Chapter 612 of the Laws of Malta transposed. Article 8 of the directive and article 7 of Chapter 612 require information and consultation only before measures that restrict access to, or the pursuit of, a regulated profession. Recital 9 of the directive leaves out provisions that do not restrict access. Chapter 612 came into force on 30 July 2020 and had no retroactive effect.

The court examined the amendments. The criteria for a warrant stayed the same. The changes on engineers established in other member states, on legal persons and on the definition of an engineer made the profession more accessible. The union's president conceded in cross-examination that the law increased access.

The court concluded that “li żżid l-aċċess għall-professjoni ma jaqax taħt l-art. 7 tal-Kap. 612” (a measure that increases access to the profession does not fall under article 7 of Chapter 612). That held whether or not consultation took place. The court dismissed the appeal, with costs against the union.

Why it matters

An injunction against a public board will not stop a minister or Parliament from legislating unless they are parties to it. A challenge under Chapter 612 must first show that the measure restricts access to or the pursuit of a profession. Opening a profession to more providers does not trigger the consultation duty.

Where it sits

The case rests on the rule that a court order binds only the parties heard, which protects every person's right to be heard before an order reaches them. It also reflects the EU principle of proportionality, which tests national measures that hinder the freedoms guaranteed by the Treaty on the Functioning of the European Union.

In its claim the union relied on article 116 of the Constitution, which lets any person seek a declaration that a law is unconstitutional, and on the Constitutional Court (22 January 1971) on mandatory legislative procedures. The appeal court decided on the articles of Chapter 321, Chapter 612 and the directive alone, and cited no case law of its own.

Source

Constitutional Court, 428/2022/1, 16 March 2026.