Pending EU infringement case means a stay, not a refusal

The Court of Appeal (Superior Jurisdiction) ruled on 23 July 2026 in S.D. vs Malta Dockers Union (Rtu 287) that a court asked whether Maltese law breaches EU law should stay the case, not decline to examine it, while the European Commission's infringement case on that law is pending.

The bench was Chief Justice Mark Chetcuti, Mr Justice Christian Falzon Scerri and Madam Justice Josette Demicoli. The court allowed the port workers' appeal in part and sent the case back to the First Hall of the Civil Court, to be decided afresh once the infringement proceedings end.

The facts

Seven auxiliary port workers had a contract with the Malta Dockers Union to provide driving services in the port. They argued that Legal Notice 135 of 2017, which amended the Port Workers Regulations (S.L. 171.02), brought back the right of a licensed port worker's son or daughter to take over the licence, and that this discriminated against them and breached EU law.

They sued the union, the minister responsible for transport, the State Advocate and the Authority for Transport in Malta for a declaration and damages. On 10 April 2025 the First Hall rejected every claim, reasoning that the Commission had issued a reasoned opinion against Malta and that deciding the EU-law claim would usurp the powers of the Court of Justice of the European Union.

What the court held

The plaintiffs appealed on two grounds: that the First Hall wrongly refused to examine whether the legal notice is compatible with EU law, and that it wrongly rejected their damages claims. After the first judgment, the Commission announced on 17 July 2025 that it was taking Malta to the Court of Justice, and those proceedings were still pending.

The court held that the First Hall had never said it lacked jurisdiction over the EU-law claim, and on that point it was right. National courts must read Maltese law in the light of EU law and must ensure that EU law prevails over any conflicting national rule, as the Court of Justice settled in Case 106/1977.

The fault lay in what the First Hall did next: it chose not to exercise its jurisdiction so as not to intrude on the Court of Justice.

The Court of Appeal held that if the First Hall feared conflicting judgments, "kien ikun aktar għaqli u aktar prudenti għaliha li tissospendi l-proċeduri sakemm ikun hemm eżitu dwar il-proċeduri ta’ ksur tal-liġi tal-Unjoni Ewropea" (it would have been wiser and more prudent for it to suspend the proceedings until there is an outcome to the EU infringement proceedings). A stay is far more proportionate than a refusal to decide, which left the plaintiffs without a remedy.

Under settled case law of the Court of Justice, including Masterfoods Ltd vs HB Ice Cream Ltd (C-344/98), a national court is as a rule bound to stay its proceedings where its decision depends on a Commission matter pending before that court.

The court added that the First Hall should not have decided the damages claims at all. Those claims rested on the premise that the legal notice breaches EU law, which the First Hall had not examined.

The court kept the unappealed rulings on the preliminary pleas and ordered the First Hall to decide all the claims again after the infringement proceedings end. Each party bears its own costs of the appeal, which the court attributed to the First Hall's shortcomings rather than the parties'.

Why it matters

A litigant who argues that a Maltese law breaches EU law is entitled to have that claim examined, even when the Commission is pursuing Malta over the same law. Where those proceedings could produce a conflicting result, the correct request is a stay until they end, not a refusal to decide. Any claim for damages built on the same EU-law premise waits with it.

Where it sits

The case applies the supremacy of EU law as it enters Maltese law through the European Union Act (Chapter 460 of the Laws of Malta). Article 5 of that Act treats any question on the meaning or effect of the Treaty as a point of law, to be decided according to the principles laid down by the Court of Justice where it is not referred there.

The court read this with article 65 of the Constitution, which requires Maltese law to conform with the obligations Malta took on in the accession treaty of 16 April 2003. A national court is both an interpreter of EU law and its enforcer against conflicting national rules.

On the duty to interpret national law consistently with EU law and to give EU law priority, the court cited the Court of Appeal (18 July 2017), Association of Car Importers Malta et vs Awtorità dwar it-Trasport ta’ Malta et, decided by the Court of Appeal on 30 October 2015, the Constitutional Court (9 July 2024) and the Court of Appeal (Inferior Jurisdiction) (20 February 2008).

On setting aside conflicting national law it cited the Constitutional Court (27 September 2019) and the Court of Appeal (Inferior Jurisdiction) (22 March 2006).

Source

Court of Appeal (Superior Jurisdiction), 7/2021/1, 23 July 2026.