9th Jun 2023

Abortion to remain illegal in Malta after EU entry

Protocol on Abortion will be annexed to Malta’s Accession Treaty to the EU, which would give legal certainty that EU law, present or future would not be able to change Maltese law on abortion. 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 special protocol on abortion.

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:

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"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."

"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. 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," the head of the Malta-EU information centre Simon Busuttil told

Mr Busuttil said that a major concern over EU membership in Malta is related to the sensitive issue of legalisation of abortion. The Maltese people concern was also fuelled by a recent European Parliament report tabled by Belgian MEP Anne Van Lancker, which recommends the legalisation of abortion in EU states. "Although not legally binding, these resolutions imply political pressure," Simon Busuttil said.

According to the protocol, it will also not be 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. "In Malta’s case, abortion is illegal and remains illegal irrespective of whether it is performed by a Maltese or a foreign practitioner," Mr Busuttil said.

Abortion not considered in enlargement talks

The EU Court of Justice has consituted that abortion is a medical service and applicant countries that wish to maintain anti-abortion measures in their national Constitutions or laws when becoming members of the EU, will need to negotiate special provisions to that effect in their individual Accession Treaties. Ireland did this in the 1992 Maastricht Treaty on European Union, in a special protocol. However the issue seems not to have been raised in the negotiations between the European Union and the applicant countries.

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The European parliament approved on Wednesday a report, which recommends legalisation of abortion and easier access to emergency contraception in EU member states and candidate countries. The report drawn up by Belgian MEP Anne Van Lancker, was adopted by 280 votes for, 240 against and 28 abstentions.


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