GVZH Advocates > Valletta, Malta > Firm Profile
GVZH Advocates Offices
192, OLD BAKERY STREET
VALLETTA VLT, 1455
Malta
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GVZH Advocates > The Legal 500 Rankings
Malta > Commercial, corporate and M&A Tier 2
Andrew Zammit and Kurt Hyzler are well-regarded corporate and commercial specialists at GVZH Advocates, with established expertise in handling M&A transactions and commercial agreements in the fintech, TMT and gaming sectors. Hyzler also has a solid track record in assisting with corporate governance and restructuring.Practice head(s):
Andrew Zammit; Kurt Hyzler
Testimonials
‘Well known Maltese lawyers, headed by the highly experienced and likeable Andrew Zammit.’
‘Andrew Zammit is an exceptional lawyer, supportive, experienced and very likeable.’
‘ The team are reliable and deliver concise, client focused advice. They are commercially savvy and provide value for money. They have a good knowledge of the technology industry and the evolving complex regulatory landscape.’
‘GVZH are strong in M&A, regulatory and finance and we will definitively continue to work with them. Consistent quality and client service from across all team members, and a personal and personable approach to the business at hand.’
‘Kurt Hyzler and his team show the right combination of excellent legal skills, responsiveness, good quality communication and client service.’
Key clients
Petronas Trading Corporation
GFSC Management Ltd
Praxis Group Limited
EMMA CAPITAL Limited
Mason & Hayes & Curran
IGT (International Game Technology)
Malta Dairy Products
DG Risk
eCabs
TaxMal
Bird & Bird (London)
Work highlights
- Advising Allwyn AG on the increase of its equity stake in the Kaizen Gaming Group.
- Advising Petronas Trading Corporation on its acquisition of a Malta-based business.
Malta > Intellectual property Tier 2
GVZH Advocates handles the full spectrum of contentious and non-contentious IP issues. The practice has established expertise in handling trade mark filings, patent applications, infringement issues, and technology and software work. Michael Grech is ‘very knowledgeable in his field', and counts copyright, software, trade mark and trade secret matters as key areas of instruction.Practice head(s):
Michael Grech
Testimonials
‘The team is highly skilled and extremely approachable. ’
‘Michael Grech is very knowledgeable in his field and able to provide reasoned explanations along with his recommendations and advice. Work that involves foreign counsel is also handled in a seamless manner.’
‘Outstanding diligence in representing the interest of our company with our IP registrations.’
Key clients
Entain/Cashcade Limited
Netflix
Michelin
Corinthia Hotels International
Malta Gaming Authority
Heritage Malta
Malta Government Investments
HSBC
Swarovski
Unilever plc/ Unilever NV
Shell
Abbott
General Motors
Work highlights
- Acted for Entain/Cashcade Limited in an infringement case.
- Acting as counsel to Netflix on an infringement matter in Malta, concerning trade mark and copyright issues pertaining to the ‘Money Heist’ series.
Malta > Real estate Tier 2
Malta > Aviation Tier 3
GVZH Advocates' aviation practice regularly handles aircraft financing, AOC applications, aircraft registration, aircraft leasing and the importation of aircraft into Malta. Michael Grech and associate Ann Bugeja are the key contacts.Practice head(s):
Michael Grech; Ann Bugeja
Key clients
Galistair Trading Limited
Buffalo Wings Aviation LLC
Titan Airways Malta Limited
Work highlights
- Assisted Galistair Trading Limited with obtaining an AOC in Malta.
- Assisted Buffalo Wings Aviation LLC with an aircraft acquisition.
- Advised Titan Airways Malta Limited on tax matters.
Malta > Banking, finance and capital markets Tier 3
Capital markets and fintech matters are prominent in the team's workload at GVZH Advocates. Andrew Zammit has a strong track record in handling licensing, regulatory and compliance matters in the space, and funds specialist Kurt Hyzler assists with collective investment scheme structures and financial services licensing projects.Practice head(s):
Andrew Zammit; Kurt Hyzler
Key clients
Tilray Brands Inc
Ascent Software Holdings Malta Limited
Work highlights
- Advising Ascent Software Holdings Malta Limited in relation to the capitalisation of a loan.
Malta > Dispute resolution Tier 3
Malta > Fintech Tier 3
At GVZH Advocates, Andrew Zammit is the key practitioner to note for fintech work; he has an excellent reputation for advising on financial regulatory issues, with an established track record in handling Maltese licensing matters for clients in the gaming space.Practice head(s):
Andrew Zammit
Testimonials
‘The team at GVZH understand the requirements to adhere with EU and local legislation.’
‘Andrew Zammit uses his legal acumen to not only provide legal advice but also tailor this towards the business needs and requirements.’
Key clients
Moneybase
Bird & Bird
eToro Money Malta Limited
Wefunder Inc
Nobel Financial
Work highlights
- Assisted Moneybase Limited with a broad range of legal, regulatory and governance issues.
- Advised on eToro’s e-money offering via its Malta-based company eToro Money Malta Limited.
Malta > Investment funds Tier 3
GVZH Advocates' practice assists a client roster of start-ups, funds, financial institutions and fintech companies with licensing, regulatory and operational matters pertaining to investment funds. Andrew Zammit and Kurt Hyzler jointly head up the department, which is also noted for its strength in transactional matters.Practice head(s):
Andrew Zammit; Kurt Hyzler
Key clients
Capaneo Investments Sicav plc
Jacaranda Special Situations Sicav plc
Vista Fund Sicav plc
Work highlights
- Advising Capaneo Investments Sicav plc on ongoing regulatory requirements.
- Advised Jacaranda Special Situations Sicav plc on regulatory matters, including the acquisition of target entities.
- Acting as counsel to Vista Fund Sicav plc relating to ongoing regulatory matters.
Malta > Shipping Tier 3
At GVZH Advocates, the team has an established track record in advising on the purchase, sale and ongoing maintenance of luxury superyachts, and is also sought after for handling the registration of vessels under the Maltese flag. Additionally, the group assists with financing transactions, employment and social security issues for seafarers, and the arrest of vessels. Michael Grech and Ann Bugeja jointly head the practice.Practice head(s):
Michael Grech; Ann Bugeja
Key clients
Floating Life International SA
Sardaleasing S.p.A.
Albaleasing S.p.A.
Credemleasing S.p.A.
Unicredit Leasing S.p.A.
Work highlights
- Advising Floating Life International S.A on all registrations of yachts under the Maltese flag.
- Advised Unicredit Leasing S.p.A. on registrations of yachts under the Maltese flag, as well as acting as resident agent in respect of all its locally registered vessels.
- Advising Credemleasing S.p.A on all registrations of yachts under the Maltese flag, as well as acting as resident agent in respect of all its locally registered vessels.
Lawyer Profiles
Photo | Name | Position | Profile |
---|---|---|---|
Dr Jonathan Abela | Tax Advisor | View Profile | |
Dr Ann Bugeja | Senior Associate | View Profile | |
Mr Josef Cardona | General Manager | View Profile | |
Dr Ruth Galea | Consultant | View Profile | |
Dr Michael Grech | Partner | View Profile | |
Dr Albert Grech | Senior Partner | View Profile | |
Dr Kurt Hyzler | Partner | View Profile | |
Dr Jackie Mallia | Senior Associate | View Profile | |
Dr Maria Tabone | Maria is a Legal Manager responsible for the legal and regulatory matters… | View Profile | |
Dr Andrew J Zammit | Managing Partner | View Profile |
Diversity
Strength in Diversity
At GVZH, diversity is an integral part of our culture and identity. Whether related to gender, ethnicity, citizenship age, sexual orientation, or any other aspect which makes individuals truly unique and individual, and mindful of people’s right to a private life, inclusion is the approach we take towards our personal differences, creating an environment where all our professionals and staff can feel comfortable being authentic and empowered to succeed. We recognise that diversity makes us a healthier organisation which contributes towards attracting outstanding talent to drive creativity and innovation and deliver the best experience for our clients.
As part of our People Strategy, we seek to create a workforce which is broadly reflective of the larger community. We are fully committed to ensure that our people are supported in capitalising on their skills and capabilities in an inclusive manner. We foster a welcoming environment which recognises and respects everyone for their unique characteristics, experiences, and skills, providing advancement opportunities to people of different backgrounds and perspectives to be represented in leadership positions within the organisation. The organisation offers flexible working arrangements aimed at achieving a good work-life balance for our people.
We also recognise the abilities and unique talents of individuals living with a disability, and seek to identify key roles to enable them to contribute towards the organisation’s purpose and objectives.
Recognising that a diverse team makes us stronger and more effective to move forward, together, it remains a paramount commitment for GVZH to maintain an open, respectable, and inclusive workplace.
Interviews
Andrew J Zammit, Managing Partner
Andrew J Zammit discusses GVZH Advocates’ on-going initiatives to modernise and streamline its operations to keep synchronised with the exigencies of today’s fast-moving business exigencies.What do you see as the main points that differentiate GVZH from your competitors?
GVZH enjoys a legacy of 80 years in the Maltese legal landscape, resulting from several strategic mergers. As a leading full-service firm, the depth and breadth of our expertise places us amongst the top professional services firms in Malta. Our differentiating factor remains our ability to provide practical and pragmatic advice in the context of the challenges faced by businesses within our core industries.
The firm’s values are based on effective teamwork, curiosity, open communication and innovation. We apply these values through the deep-rooted relationships with our clients, making us true strategic partners.
Working closely with business leaders and entrepreneurs places us in a privileged position. It also requires us to keep ahead of the key developments in our focus industries, whilst being mindful of each client’s objectives and risk-gearing. The development of these skills has enabled us to garner the trust and confidence that is central to any long-term professional relationship.
GVZH is actively engaged by several international firms, ranging from magic circle firms to smaller boutique practices, providing them with both technical and practical insight on any Malta-facing issues. Our participation in several worldwide networks also provide us with cross-border capabilities which significantly boosts our offering.
Which practices do you see growing in the next 12 months? What are the drivers behind that?
Mergers and acquisition transactions, leveraged financing and telecoms and technology regulation represent the core activities of GVZH. Whilst mergers and acquisitions and leveraged finance activity maintained a very high level of activity throughout 2021, and 2022 this trend appears to have lost some momentum in the first quarter of 2023, but is expected to pick up again as company valuations are adjusted and become more attractive.
Our passion for everything technological is also reflected in the nature and caliber of clients handled in this area, and the developments in the regulation of artificial intelligence, robotics and data privacy promise to generate significantly more activity. Indeed, the introduction of the Digital Services act and the Digital Markets Act at a European level provide a very clear indication of the increased regulation that we will be seeing in this space over the coming years.
What’s the main change you’ve made in the firm that will benefit clients?
Our investments into technology, the streamlining of processes and staff development are probably the most significant changes that we have made within the firm over the past 5 years, and which we are certainly seeing the benefits both for our clients and for our people. These efficiencies enable our professionals to communicate and collaborate more efficiently and effectively, dedicating their energies towards more value-added functions in the course of their day, ultimately resulting in a value-add for our clients .
Is technology changing the way you interact with your clients, and the services you can provide them?
Technology lies at the core of our strategy as an organisation. We maintain a very strong technological environment which enables our professionals to collaborate in a very open and streamlined manner regardless of where they are based. The development and centralisation of our internal knowledge systems have also borne fruit with significant positive feedback being received from clients and correspondent firms.
Can you give us a practical example of how you have helped a client to add value to their business?
The depth and strength of our network, both locally and overseas enables us to connect people to make things happen. Whether it’s connecting a local client with a suitable foreign firm, introducing prospective buyers and sellers to each other or obtaining market intelligence in jurisdictions or industries where information is limited we find that our network of connections within global industries have proven to be invaluable for our clients.
Are clients looking for stability and strategic direction from their law firms – where do you see the firm in three years’ time?
It is evident from our dealings with clients that the stability and strategic direction of the professional organisations that they work with represent key elements to support the on-going rapport. In today’s fast-moving world, clients seek a “safe haven” where they can address their legal, governance or regulatory challenges frankly, openly and pragmatically. Our dedication is to provide our clients with advice that will serve to overcome those challenges and to support them through their journey beyond. Our culture of continuous improvement creates a constant feedback loop, enabling us to learn from each individual outcome of our collective performance.
In the next 3 years we expect to leverage off the investments that have begun over the past years, embracing deeper technological change to support our administrative processes and take further steps to broaden our approach towards mentoring and life-long learning. We are driven to continue excelling in our core areas of expertise by creating a modern, sophisticated and open platform for ambitious professionals to reach their full potential, both on a personal and on a professional level.
Press Releases
MFSA Revamps Corporate Governance Manual for Directors of Collective Investment Schemes
1st November 2023 On the 30th of October 2023, the MFSA, in its attempt to further reinforce its governance strategies, has issued an amended Corporate Governance Manual for Directors of Collective Investment Schemes in order to effectively implement adequate codes of conduct within the financial services industry.Transfer Pricing Rules 2022 – Legal Notice 284 of 2022
18th August 2023 The implementation of transfer pricing in Malta will be effective as from the 1st January 2024.How is the Ukraine – Russia situation affecting aviation in Europe?
21st March 2022 Russia’s invasion of Ukraine has raised serious questions and has other difficulties in Europe’s travel industry, which is already highly damaged by the Coronavirus.An Analysis of The Essential Elements Required For The Issuing of a Warrant of Prohibitory Injunction.
8th September 2021 On the 26th July 2021, the First Hall, Civil Court, presided by Hon. Judge Audrey Demicoli, in the case “Moon Pay Limited vs. the Malta Financial Services Authority” (‘MFSA’), delivered its final decree in relation to a request filed by the applicant company for the issuing of a warrant of prohibitory injunction, to prevent the MFSA from publishing a decision which it had taken against the applicant company. In its decision, the Court delved into certain requirements which must be satisfied in order for such a warrant to be issued, as well as the manner in which these requirements are to be interpreted.GVZH Advises Epic Communications On Tower Spin-Off
23rd July 2021 GVZH is proud to have advised Epic Communications Limited on the Maltese tax and corporate aspects of the sale of 100% of its passive telecommunications infrastructure to Phoenix Tower International (PTI), established an operator of high quality wireless infrastructure sites around the world.Malta Gaming Authority publishes Guidance Document on Brexit Impact
13th November 2019 The Malta Gaming Authority (“MGA”) has published a guidance note (“Guidelines”) laying out the impact that the United Kingdom’s (“UK”) exit from the European Union (“EU”) will have on regulatory affairs within the remit of the MGA. These Guidelines apply to entities established in Malta and operating in the UK, with a UK licence but without a Maltese Licence, or entities established in the UK providing services and supplies within Malta.GVZH Advocates appoints new Partners
16th May 2019Dr Luca Vella and Dr Kurt Hyzler have been admitted as Partners of GVZH Advocates within the firm’s Corporate, Mergers and Acquisitions, Capital Markets, Banking and Finance and Financial Services Industry practice groups.
Dr. Katrina Abela selected as an Advocacy Committee member of the European Business Aviation Associa
18th April 2019GVZH Advocates is delighted to announce that senior associate Katrina Abela has been selected as a member of the first Advocacy Committee of the European Business Aviation Association.
Temporary Work Permits
27th July 2018It has been recently announced that Identity Malta would reduce the application time of a single work permit by weeks, by allowing foreign workers to start working (on a temporary basis) as soon as their application was approved.
Introduction of new MGA Regulatory Framework moves to 1st August 2018
27th July 2018Further to the notification of the draft legal framework regulating gaming in Malta through the Technical Regulation Information System, a Detailed Opinion has been issued by a Member State in relation to the current draft of the Gaming Authorisations Regulations (the “Regulations”) and the European Commission and another Member State have also issued comments in relation to the various proposed legislative instruments.
Malta Ahead of the Game: Three cryptocurrency and blockchain Bills passed the second reading stage
27th July 2018During a conference organised by the Malta Institute of Management, Parliamentary Secretary for Financial Services, Digital Economy and Innovation Silvio Schembri, announced that the three crypto-related bills, namely the Malta Digital Innovation Authority Bill, the Innovation Technological Arrangements and Services Bill, and the Virtual Financial Assets Bill will pass through the second reading in Parliament, and in fact yesterday evening the Maltese Parliament finalised the second reading stage. The bills will now move on to the committee stage and then on to the third reading stage. Once the third reading in parliament is concluded the bills will then be presented to the President of Malta for her assent and become law.
Extension of the Special Designated Areas
27th July 2018By virtue of Legal Notice 181 of 2018, the list of Special Designated Areas has been extended to now include the Southridge Development in Mellieha.
In terms of Chapter 246 of the Laws of Malta, the following table would need to be followed for the acquisition of immovable property in Malta:
Deduction for Transportation Cost of Employees Rules
27th July 2018At the end of February, the Deduction for Transportation Cost of Employees Rules were published through LN67 of 2018. These rules shall apply with respect to transportation costs incurred for the transport of employees as from the year of assessment 2018. These rules shall remain in effect up to the year of assessment 2020.
VAT Grouping Regulations
27th July 2018By Virtue of L.N. 162, the newly implemented VAT Grouping regulations shall come into force as of 1st June 2018. VAT Grouping will enable members of a VAT Group to avoid irrecoverable VAT due on charges made between such members. Applicants forming the VAT Group will be required to be bound by financial, economic and organisational links. Moreover, one of the applicants within the VAT Group must be a taxable person who is licensed or recognised by the Malta Financial Services Authority (MFSA) or the Malta Gaming Authority (MGA).
Deduction for Transportation Cost of Employees Rules
27th July 2018At the end of February, the Deduction for Transportation Cost of Employees Rules were published through LN67 of 2018. These rules shall apply with respect to transportation costs incurred for the transport of employees as from the year of assessment 2018. These rules shall remain in effect up to the year of assessment 2020.
Notional Interest Deduction (NID) Rules
27th July 2018By virtue of Legal Notice 37 of 2018, the Maltese government introduced the Notional Interest Deduction (NID) Rules. Traditionally, businesses operating in Malta finance their operation via debt, given that interest is a deductible taxable expense. On the other hand, equity funded business do not have a corresponding deduction and hence the NID aims to equate the tax treatment of debt and equity by allowing the deduction of a notional interest over equity.
The Malta Gaming Authority (MGA) Publishes Industry Guidelines on the General Data Protection Regula
27th July 2018In anticipation of the coming into force of the GDPR, the MGA, in consultation with the Office of the Information and Data Protection Commissioner (“IDPC”) has issued a guidance document which intends to provide B2C licensees with guidance on the processing of personal data carried out throughout the course of their gaming service operations.
Legal Developments
News Item: New Issued Guidance, Penalties and Publications on VFASPs Oversight
1st November 2023 The MFSA has continued to enhance the element of transparency in its guidance with regards to penalty administration, to ensure that such penalties are proportionate and dissuasive in nature.The Employer’s Obligation to Submit Necessary Paperwork on Time
1st November 2023 The case of Alyasif Bhatti vs Identity Malta Agency dealt with a foreign worker who was initially employed as a construction labourer with a local construction company for the period covering the 1st of March 2021 until the 10th of February 2022.Employee Share Options
17th October 2023 The fundamental characteristics of a striving work environment are employee engagement, development, and retention.Unfair Dismissal – A Closer Look at the Termination of Employment Contracts
17th October 2023 The termination of an employment contract of an indefinite nature is attributed a high level of protection under Maltese employment law, that is, the Employment and Industrial Relations Act (“the Act”).MCA CONSULTATION ON INFLATION-LINKED IN-CONTRACT PRICE INCREASES
17th October 2023 Article 20 of the Universal Services Directive provides that service providers must ensure that consumers have the right to a contract which must include (amongst other things) details of prices and tariffs.On-Call Working Arrangements
12th September 2023 The relevant legislation on Working Time The EU Working Time Directive (2003/88/EC) was transposed into Maltese legislation by virtue of the Organisation of Working Time Regulations, Subsidiary Legislation 452.87, which sets out the minimum requirements for the organisation of working time.The curious case of Bill 55 A snapshot of the controversies around the recent amendment to Malta’s Gaming Act
8th September 2023 On 21st June 2023, the Maltese Parliament approved amendments to the Gaming Act (CAP. 583) (hereinafter referred to as “the Act”) which were submitted to Parliament on the 24h April 2023, through Bill 55.Non-Standard Working Arrangements Q&As
31st August 2023 The Employment and Industrial Act, Chapter 452 of the Laws of Malta, briefly tackles the concepts of overtime and work during public and national holidays.Q&A | Working Time Record Keeping under Local Legislation
25th August 2023 Is there a legal obligation to keep a record of the daily start time and end time of working time for a Company’s employees? If yes, does this obligation emerge from Maltese law?THE EDPB FLEXES ITS MUSCLES – META FINED IN EXCESS OF €1.5bn
18th August 2023 The European Data Protection Board (EDPB) has in 2023 issued four decisions relating to Meta Ireland.The new norm of Telework – The Law and its Prospect of Reform
18th August 2023 What is Telework? In the context of employment, telework is a form of organising or performing work, using information technology, such as smartphones,Case Study on Retirement
18th August 2023 An employee working as a cleaner has been employed since 2007, but her new contract terms were signed in 2011. The original contract is very old, with some very specific clauses regarding retirement, which in her case, is at sixty-three (63) years old.Posted Workers vs Secondment – part 2
18th August 2023 This is the second part of two articles on the notion of secondment and posting. The Concept of SecondmentPosted Workers vs Secondment – Part 1
18th August 2023 This is the first part of two articles on the notion of secondment and posting. You may be aware that certain aspects of employment law provide an opportunity for employees to work for different employers or else travel abroad for work.New Health and Safety Rules at the Workplace
18th August 2023 The need for Good Health and Safety Rules at the Place of Work Having satisfactory health and safety management at the place of work is valuable for all employers and employees because it promotes a positive and productive working environment whilst preventing any injuries and the outbreak of illnesses.MGA Policy on the use of Distributed Ledger Technology by Authorised Persons
18th August 2023 On 30th January 2023, the Malta Gaming Authority (MGA) issued a Policy (‘the Policy’) on the use of Distributed Ledger Technology (DLT) by Authorised Persons (that is gaming operators licensed in Malta),MFSA Expectation in relation to ESG Requirements for Fund Managers
18th August 2023 On the 16th December 2022 the Malta Financial Services Authority (MFSA) issued a letter addressed to Board Members and Compliance Officers of fund managers,Maternity Leave Case Study
18th August 2023 Background ‘X’’s current role has changed quite a bit since she’s been off on maternity leave, which we knew it would, due to a new system coming in and the needs of the team changing due to business requirements.Louis Vuitton’s “Chequerboard Saga” Comes to an End
18th August 2023 In an EU decision given on the 19th of October 2022, the European General Court (“General Court”) denied Louis Vuitton’s (“LV”) trademark claim of its white-and-blue Damier Azur pattern,Gaming | What are the recent changes to the Player Protection Directive?
18th August 2023 On 12th January 2023 the Malta Gaming Authority (MGA) published amendments to the Player Protection Directive (Directive 2 of 2018) (the “Directive”),From One Generation to the Next – The ‘Pass it on’ Method of Port Workers’ Licences in Malta
18th August 2023 The current method of how licences are obtained by port workers in Malta is controversial. The issue mainly lies in the fact that once a port worker stops working in their role, their family members may be allowed to take over their position. This reality clearly infringes employment rules of the European Union (EU), and to this end, the European Commission (EC) has had to take matters in its own hands. In fact, on the 29th of September, 2022, the EC instituted infringement proceedings against Malta in relation to this topic.[1] The EC expressed its dissatisfaction towards the legislation governing the succession of port labour licenses from one family generation to the next, in that it goes against basic EU principles (such as the free movement of workers, the freedom of establishment and the freedom to provide services). The TFEU rejects the existence of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work/ employment. Furthermore, all restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State and restrictions on freedom to provide services within the Union[2] should be prohibited at all costs – this essentially goes against the spirit of the TFEU.[3] The Applicable Law for Port Workers- The Port Workers Ordinance
- If the port worker reaches 63 years old or such lower age as may be prescribed from time to time;
- If the port worker is no longer a fit and proper person to be a port worker for any cause whatsoever, as decided by the Board;
- If he became absent from work without due reason; or
- If he allows someone else to take on his role as port worker in his stead.
- Firstly, this rule does not apply to those workers who died, or died at work, and in these cases, they will be permitted to be replaced by a son or daughter.
- Secondly, port workers who, prior to the 10th day of June 1975, were licenced to work in the general cargo stevedores’ section, lightermen’s section or port labourers’ section, will be replaced by a son, daughter, brother or sister, and;
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- Thirdly, and most importantly, port workers who were licenced on the 23rd of October 1992, or else during October 2004 and 2017, may be replaced by a son or daughter, subject to the provisions of the Regulations, and unless the vacant role has been already filled by another prospective individual.
Authors: Ann Bugeja, Christine Borg Millo & Matthias Manicolo
Footnotes [1] This on the basis of Article 258 of the Treaty of the Functioning of the European Union (TFEU), which may be accessed here. [2] Article 56 of the TFEU [3] Article 49 of the TFEU [4] The handling of cargo includes cereals, seeds and grains, meats, gas cylinders and bitumen or asphalt in drums, but excludes that cargo transported between Malta, Gozo and Comino, coke or coal in bulk, oils and wines, farm animals and fish, bitumen in bulk, motor vehicles and commercial vehicles of a maximum of 10 tons. [5] As established through Article 10 of the Port Workers Regulations, where the register shall contain a section clearly indicating the names of persons, other than prospective port workers, eligible to become port workers. [6] The surcharge, or additional charge, is calculated at such percentage of the gross wages of port workers, as prescribed by law. [7] Refer to Article 11(3) of S.L 171.02 [8] Refer to the case John Elton Mifsud vs Port Workers Board et, First Hal Civil Court, on the 25th of February 2021, Case Number 104/2019, which proved how the succession of a Port Workers’ licence cannot be passed onto a family member below the age of 18. It was explained that: “madankollu l-istess Vincent Mifsud ma setax jirregistra lill-ibnu l-esponent biex jiret il-pozizzjoni tieghu skont il-ligi u dan ghaliex fiz-zmien li rtira l-esponent kellu hmistax-il sena u kwindi ma kienx tal-eta`. Ta’ min ifakkar illi s-sistema` li kienet tithaddem fil-Port hija simili ghal sistema “closed shop” u dana billi d-dritt tax-xoghol jintiret mill-genitur favur l-akbar mill-ulied (ara Regolament 13 ta` L.S. 171.02).” [9] Refer to Article 15B of S.L 171.02
Examination of the Proposal for a Directive of the European Parliament and of the Council – to strengthen the application of the principle of equal pay for equal work; or work of equal value between men and women, through pay transparency and enforcement mechanisms (the ‘Proposal’)
18th August 2023 The rationale behind the 2021 Proposal was namely due to the existence of a gender pay gap among men and women in the workplace, which has been determined to leave a long-term impact on;-
- The quality of women’s life;
- Their increased risk of exposure to poverty;
- Persistence in the pension pay gap.
- Definitions
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- Direct discrimination; meaning here one person is treated less favourably on grounds of sex than another person is, has been or would be treated in a comparable situation; and
- Indirect discrimination; meaning the situation where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
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- Harassment and sexual harassment, and less favourable treatment based on a person’s rejection of, or submission to, such conduct;
- Any instruction to discrimination against persons, on the ground of sex;
- Any less favourable treatment of a woman, related to pregnancy or maternity leave.
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- Equal work; or
- Work of equal value
- Equal work and work of equal value
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- Take necessary measures to ensure that employers have pay structures, to ensure that women and men are paid equally for the same work and the work of equal value;
- Take necessary measures to ensure that tools are in place to access and compare the value of work, and to ensure, on the basis of objective criteria, whether employees are in a comparable situation. The following must be considered; educational, professional and training requirements, skills, effort and responsibility, work undertaken and the nature of the tasks involved. They should always exclude the category of the employee’s sex;
- Ensure that the assessment of whether the employees are carrying out the same work/ work of equal value and cannot be limited to individuals employed at the same time, and in situations where female and male employees work for the same employer. The comparison must be in a more general manner and focused more on the type of work being done;
- Job evaluation and classification systems must be used for determining pay, and must be based on the same criteria for both men and women, and must exclude any discrimination on grounds of sex.
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- Make easily accessible, to employees, a description of the criteria used to determine pay levels and career progression;
- To inform all employees of their right of information;
- To provide the information within a reasonable period of time upon an employee’s request.
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- To receive information on the following:
- their individual pay level;
- average pay levels (broken down by sector, for categories of employees carrying out the same work or work of equal value);
- To have the possibility to request information about the above on their own accord;
- To not be prevented from disclosing their pay to enforce the principle of equal pay between men and women for equal work.
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- Pay gap between ALL female and male employees;
- Pay gap between ALL female and male employees in the complementary or variable components;
- Median pay gap between male and female employees;
- Median pay gap between male and female employees, in complementary components/variable components;
- Proportion of female and male employees receiving complementary or variable components;
- Proportion of female and male employees in each quartile pay band;
- Pay gap between female and male employees by categories of employees, broken down by ordinary basic salary and complementary or variable components.
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- The pay reporting demonstrates a difference of average pay level between female and male employees, of at least 5 %, in any category; and
- The employer has not justified such difference in average pay level by objective and gender-neutral factors.
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- An analysis of the proportion of female and male employees, in each category of employees;
- Detailed info on average female and male employees’ pay levels, and complementary or variable components for each category of employees;
- An identification of any differences in pay levels between the employees in every category;
- Reasons for such differences in pay levels – with objective and gender neutral justifications;
- Measures to address the differences if not justified by the employer.
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- To ensure that judicial procedures for the enforcement of rights and obligations related to principle of equal pay are available to ALL employees, who feel wronged by a failure to apply this principle. These procedures must be easily accessible to employees, and those acting on their behalf.
- To ensure that associations/organisations/equality bodies/workers representatives which have a legitimate interest in ensuring equality between men and women, may also engage in any judicial or administrative procedure to enforce the above rights of equal pay. They may act on behalf of or in support of an employee who is victim of an infringement. Equality bodies and employees’ representatives shall also have the right to act on behalf of or in support of several employees, with the employees’ prior approval.
- To ensure that any employee who suffered harm due to their right’s infringement, will have the right to claim, and obtain, full compensation or reparation for that harm. This is to be determined by the MS. The compensation for the loss and damage sustained by the employee must be real and effective and must be dissuasive and proportionate to the damage suffered.
- To ensure that the courts and the competent authorities may order, at the request of the claimant (and at defendant’s expense) two injunction orders, to either;
- Establish an infringement of any right related to the principle equal pay;
- Ordering the defendant to take structural or organisational measures to comply with any right or obligation related to the principle of equal pay.
- To ensure that national courts or competent authorities are able to order the defendant to disclose any relevant evidence which lies in their control.
- To lay down rules applicable to limitation periods for bringing claims regarding equal pay between men and women, and their duration.
- To lay down rules on penalties applicable to infringements of national provisions; to be effective, proportionate and dissuasive. The level of the fines shall take into account:
- the gravity and duration of the infringement;
- any intent or serious negligence on the part of the employer;
- any other aggravating or mitigating factor applicable to the circumstances of the case.
- To ensure the consistent monitoring of the implementation of the principle of equal pay among genders and the enforcement of all available remedies. This shall be done by designating a monitoring body for support, which will have the following tasks:
- Raise awareness among public and private undertakings and organisations and general public to promote equal pay;
- Tackle causes of gender pay gap and devise tools to assess pay inequalities;
- Aggregate data received from employers and publish it in a user-friendly manner;
- Collect joint pay assessment reports;
- Aggregate data on the number of, and types of, pay discrimination claims before the courts and pubic authorities;
- (the above data needs to also be provided to the Commission on an annual basis)
- To provide the Commission (Eurostat) with up-to-date gender pay gap data, annually and in a timely manner. These are to be broken down by gender, economic sector, working time, economic control and age;
- To take active measures to ensure that any provisions adopted from this proposed Directive are brought by all appropriate means, to the attention of persons concerned.
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- The employees’ past payment history, in that employees can refuse to provide their past wage history to the employer, and their existing salary;
- The employees’ right to receive information about the pay of other equal employees, in the same category of work;
- The employees’ right to receive information from their employer on the gender pay gap at their place of work, through the gender pay gap reporting mechanism and the joint pay assessment; and this further keeps the employee in the loop regarding the salary of other employees without it being a ‘secret’;
- The existence of non-discrimination at the place of work amongst male and female employees, with the possibility of employees seeking redress and compensation if they have suffered this wrongdoing, eliminating bias among employees.
Authors: Ann Bugeja & Christine Borg Millo
Employees and their entitlement to Rest Periods in Employment
18th August 2023 Employees are entitled to minimum periods of both daily rest and weekly rest; these are two separate and independent rights for all employees. This has been confirmed in the Hungarian case C477/21, under the names of IH – v – MÁV-START Vasúti Személyszállító Zrt., decided on the 2nd of March, 2023, and decided by the European Court of Justice (ECJ). Facts of the Case The facts were as follows; A train driver was employed by MAV-START, which is the Hungarian national railway company. His employment consisted in part of the monthly working time roster with no weekly rest days. However, he was allocated a weekly rest period, based on a weekly reference period instead. The employee stated that he was entitled to his daily rest period, of at least 11 consecutive hours, based on the EU Working Time Directive (the Directive), even when this daily rest came before or after his weekly rest period, of after his period of leave. This right was declined by his employer, who argued that there existed a collective agreement for employees in this sector, who were granted a minimum weekly rest period of at least forty-two (42) hours; and this exceeded the minimum weekly rest period that the Directive provided; that is, of twentyfour (24) hours per week. Hence, the employer argued that his employee, by being granted forty-two (42) hours of weekly rest, was not being disadvantaged in any manner. The reasoning of the employer, however, was found to be ill founded by the Court. The issue The question which arose was essentially: Does daily rest form part of the weekly rest period, or else is the daily rest period interpreted as being a concept separate from the weekly rest period? And more specifically, after the minimum daily rest period of eleven (11) hours, can the minimum weekly rest period, of twenty-four (24) hours, be also granted to the employee? Explanation by the Court and the Outcome of the Ruling In this preliminary ruling by the European Court of Justice, the Court confirmed that, as primary rights of employees, daily rest periods and weekly rest periods are two independent and distinct rights that employees are BOTH entitled to. In the ruling, the Court explained that: “The Directive provides the right to daily rest and the right to weekly rest in two different provisions, namely, in Articles 3 and 5 respectively. That indicates that they are two autonomous rights which…pursue different objectives, consisting, for the daily rest period, in enabling the worker to remove himself or herself from his or her working environment for a specific number of hours which must not only be consecutive but must also directly follow a period of work and, in the case of the weekly rest period, in allowing the worker to rest during each seven-day period”. By this reasoning, employees must be guaranteed the actual enjoyment of each of those rights independently of each other, because:- Daily rest allows the employee to remove himself/herself from their working environment for a number of hours; to be consecutive and directly following a period of time of working hours; and
- Weekly rest allows an employee to rest during a seven (7) day period, apart from the daily rest period.
Authors: Ann Bugeja & Christine Borg Millo
Back-to-Back Aircraft Transactions: Sensible Strategy or Horrendous Heap?
18th August 2023 The present economic recession, the restrictive credit market and the unfavourable press have all had a significant impact on the business aviation industry. Whilst any aircraft transaction requires exceptional attention to detail, a good dose of fear and a properly constructed backup plan, in a “back-to-back” arrangement, the probability of things not turning out as planned, increases significantly. Typically, in such deals, contrary to a standard seller and purchaser transaction, the aircraft is transferred to the end-purchaser through a middleman who serves as both the interim purchaser and the interim seller. Consequently, a back-to-back transaction, in its simplest form, involves an aviation intermediary purchasing an aircraft from the primary vendor and selling it right away to the end purchaser. Intermediaries sign a distinct sales contract with the purchaser after concluding a purchase contract with the vendor. The specifics of each party’s agreement with the intermediary are often kept private. Indubitably, these deals are rather challenging with funding constraints, confidentiality concerns, contractual restrictions, and legal and tax barriers making up only a few of the most common predicaments which interested parties face on a daily basis. Nevertheless, the back-to-back arrangement frequently makes an impossible transaction doable. In some limited circumstances such as the framework of a corporate mandate, trade-in, or aircraft holdings, the application of a back-to-back transaction may indeed be justified. An aircraft vendor could merely desire to sell an aircraft for a certain amount and be happy to allow the intermediary to retain any premium it might be able to achieve from selling the aircraft for more than the seller’s desired price. In the event of a repossessed aircraft, the bank would have a target price in mind and may not be too concerned with getting the best deal. Similarly, a purchaser would have the mandate and power to buy an aircraft with the complete transactional cost authorised, but not necessarily the power to compensate an intermediary or consultant. The intermediary is then free to find an eligible aircraft and collect the equivalent of a commission by negotiating a reduced purchase price from a vendor. In this scenario, both purchaser and the intermediary agree that the purchaser will acquire an aircraft of a specified kind for a fixed price. If the transaction is a success, the objectives of the seller and the purchaser are achieved. In addition, although non-American purchasers of aircraft could have a cultural aversion to settling a broker’s fee, they would have no trouble paying a greater purchase price if the broker’s fee was included in the aircraft’s cost. In a comparable manner, a purchaser would prefer to refer to the full transaction price as the cost of the aircraft rather than reporting or accounting for a commission individually. This may take place vis-a-vis back-to-back transactions. It is also possible to maintain the privacy of the aircraft purchaser with a back-to-back transaction, at least in the first phases of the transaction. A vendor may at some stage prior to closure require knowledge of the identity of the purchaser to ensure compliance with any export restrictions or anti-money laundering regulations. The sale or purchase of a business jet is an intricate process that includes commercial, specialized, contractual, compliance, taxation, and/or customs attributes and necessitates the involvement and coordination of numerous parties with distinct interests such as the vendor, the purchaser, the escrow agent, the intermediary, the operator and the financial institution. Since neither the vendor nor the purchaser has the required expertise to effectively execute the sale or purchase of a business jet, in most transactions, both parties choose to enlist the support of a competent intermediary with a strong network who can help the vendor locate the right purchaser or assist the purchaser in finding the right aircraft to match their business model. Intermediaries play a crucial function within such deals, and therefore, it is crucial that an experienced and reputable intermediary is selected. On the other hand, interested parties ought to be aware of a tactic which has increased in popularity over the past years, i.e. for the intermediary to put up a covert “back-to-back” transaction to obtain unauthorised commission. In such unethical cases, the intermediary never puts up any money but uses the end-purchaser’s money to acquire the aircraft, to then immediately transfer title to the same end-purchaser (with the intermediary then pocketing the difference which may be significant). Furthermore, aside from the additional higher costs incurred by the buyer, such transactions may create title concerns, especially if the deal goes belly up. Here are some of our suggestions:-
- Both the purchaser and the vendor must insist on having the transaction correctly recorded by a knowledgeable aviation expert. There are concerns with export certifications of airworthiness, export and embargo limitations, and export approval processes that must be observed in international transactions.
- As the purchaser, you should request an exhaustive examination and records assessment from an inspection facility versed about the model of the aircraft and its issues. Companies experiencing financial hardship may cut corners with upkeep and retention, leaving ‘pencil whipped’ data as a prospect.
- To avoid last-minute liens being put on aircraft shortly before closing by suppliers who learn of an anticipated sale, a title search should be performed both during the ‘letter of intent’ phase and just prior to closing.
- It is crucial to verify that the legal adviser is exclusively serving your interests and that the relationship is captured in a formal agreement.
Author: Ann Bugeja
Amendments to Employment Law | What you Need to Know – Part II
18th August 2023 Part 2 – The Regulations Scope and Application The amendments emerging from the Transparent and Predictable Working Conditions Regulations apply to all employees in the EU who possess an employment contract, collective agreements or practice as employees in each Member State (MS). Some parts of the Regulations also apply to seafarers and sea fishermen. The rights and obligations delineated in the Regulations are to apply to ALL employment relationships retrospectively, by 1st August 2022. Further, if a collective agreement is introduced or implement and is more favourable than the Regulations, then the collective agreement will override. Important Definitions The Regulations now provide for significant definitions, that were completely absent from the Information to Employees Regulations. Refer to article 3 of the Regulations which provides for such list, including among others, definitions of:-
- Reference hours and days; this means time slots in specified days during which work can take place at the request of the employer;
- Work pattern; this means the form of organisation of the working time and its distribution according to a certain pattern determined by the employer;
- Work schedule; this means the schedule determining the hours and days on which performance of work starts and ends;
- Zero-hour contract – this means a contract of employment where an employee is required to be available for work when needed by the employer, and the employer promises payment on the basis of hours that the employee worked without guaranteeing a minimum number of hours to the employee.
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- To provide each employee with the information stipulated in the Regulations in writing; and to ensure that it can be stored by the employee – whether printed or in electronic form;
- To inform employees about the fundamental and basic aspects of the employment relationship, such as:
- Details on the name, registered place of business of employer and valid ID, gender and address of employee and the place of work (note that if there is no fixed place of work, the employer states that the employee will be employed at various places, and include the registered place of business nonetheless; if there is no registered place of business, the domicile of the employer should be stated instead);
- Place of work (whether fixed, not fixed, various places, if employee is allowed to determine his own place of work, the registered place of business or domicile of employer);
- Title/Grade/Nature/Category of work that the employee is employed in;
- Brief description of work or specification;
- Date of commencements of contract;
- End date or expected duration (for fixed term contracts);
- Identity of user undertakings when known (for temporary agency workers);
- Duration and conditions of probation;
- Training entitlement provided by employer (if any);
- Amount of paid leave entitled to the employee including, but not limited to: vacation leave, parental leave, paternal leave, maternity leave, carer’s leave, urgent family leave, bereavement leave; and marriage, quarantine, jury service, sick leave and injury leave;
- Procedure observed by employer and employee for termination of employment – including notice periods, length and method for termination;
- Remuneration (basic amount of pay), overtime, special rates of pay, method of payment of wages, conditions of fines and quantum of fines by employer for non-payment of any due wages;
- Organisation of working time – especially for specific occupational activities, length of work, overtime arrangements and shift work;
- If work pattern is unpredictable – employer to also inform the employee of 3 points:
- That work schedule is variable (including number of guaranteed paid hours and the pay for the work performed for these hours worked);
- Reference hours and days that employee may be required to work;
- Minimum notice period that employee is entitled before start of work assignment and any deadline for the cancellation of the work assignment;
- Existence of collective agreements affecting the employee’s conditions of work, if any;
- Identity of social security institutions that are receiving the social contributions attached to the contract of employment and any protection provided by employer regarding this;
- ANY OTHER relevant condition of employment.
Authors: Ann Bugeja & Christine Borg Millo
Footnotes [1] Article 2 of EIRA defines who an outworker is – “outworker” means a person to whom articles, materials or services of any nature are given out by an employer for the performance of any type of work/service, where such work or service is to be carried out either in the home of the outworker or in some other premises not being premises under the control and management of that other person [2] Which are defined as being a contract of employment where an employee is required to be available for work or services when needed by the employer, and the employer promises payment on the basis of hours that the employee worked without guaranteeing a minimum number of hours to the employee. [3] Refer to article 14 of the Regulations for this matter. #EmploymentLaw #WorkingConditions #Regulations
Amendments to Employment Law | What you Need to Know – part I
18th August 2023 Act no. XX of 2022 came into force on the 20th of December 2022, to amend the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta), partially transposing EU Directive 2019/1152 on transparent and predictable working conditions in the European Union. The latter considers the main conditions of work within an employee and employer relationship, including minimum rights on working time, information provided to the employee, parallel employment and probation. Secondly, the Transparent and Predictable Working Conditions Regulations has been introduced through Legal Notice 267 of 2022. It transposes the EU Transparent and Predictable Working Conditions Directive (2019/1152)[1] and repeals the national Information to Employees Regulations.[2] The objective of the Transparent and Predictable Workings Conditions Directive is to improve all the working conditions of an employee through legislation reform, by promoting more transparent and predictable employment and ensuring the adaptability of the EU labour market.[3] The Regulations mainly lists more requirements on information that is to be provided to an employee, whether working in Malta or outside Malta. It discusses further rights of the employee and new obligations of the employer, together with certain legal prohibitions such as refusal of parallel employment and zero-hour contracts. The below are the most salient points that one should be aware and should take note of in an employment relationship between the employer and the employee. Part 1 – Amendments to EIRA Defining an Employment Relationship For better clarity on the subject, a new definition to identify what an “employment relationship” is, has now been provided. It is now defined as “an agreement, whether oral or in writing, in any form, whereby a person binds himself to render service to or to do work for an employer, in return for wages, and…includes an agreement of apprenticeship”.[4] Hence, whenever the employer exercises effective direction, control and choice over the nature of the work or tasks being performed by the employee, for the employer; then that relationship is one of an employment relationship and the person carrying out the work is an employee of the employer. Probationary Period The most pertinent amendments made through this act tackles the notion of “reasonable”[5] probation for fixed term contracts, under article 36 (1) of the principal act. “Probationary periods allow the parties to the employment relationship to verify that the workers and the positions for which they were engaged are compatible while providing workers with accompanying support.”[6] During this trial period, the employment relationship may be terminated by either party upon their will, without assigning a valid reason for termination. What would be required is simply one (1) week’s notice of such termination to be given by one party to the other, if the employee was working continuously with the same employer for more than one (1) month. The general rule holds that when any employment relationship is subject to a probationary period, the length is of six (6) months[7]. However, this rule been elaborated to create a more proportional probationary period for those employee relationships which are of a fixed term nature.[8] Firstly, in a fixed-term employment relationship, the length of probation must be proportionate to the expected duration of the contract and the nature of the work. When there is a renewal of a work contract which consists of the “same function and tasks”, then that employment relationship will not be subject to a new probationary period, although it is the start of a new fixed-term contract. This resembles more the essence of an indefinite contract, making a fixed term contract more continuous and without staggering periods of uncertainty for both the employer and employee. Secondly, no fixed term contract can be shorter than the prescribed six months unless it is “justified on objective reasons”. The latter is based on precise and concrete circumstances which characterise a given activity, but are not defined at law. Where the employer still wishes to enter into a fixed work contract of service with an employee for a period shorter than six (6) months, the employer has the duty to list the objective reasons for its justification in the written contract. Thirdly, for a fixed term contract that holds a duration of between six (6) months to fifteen (15) months, the time of probation is calculated on a two (2) month probation period, for every six (6) months of employment. For instance, should the contract stipulate a work period of twelve (12) months, the employee is entitled to a four-month (4) probationary period. Moreover, if the fixed term contract is shorter than six (6) months, probation will be 1/3rd the duration of that contract. As an example, if the fixed employment contract is (12) twelve weeks long, the duration of probation would be four (4) weeks. Lastly, as a fixed rule, should the employment contract of a fixed term nature exceed fifteen (15) months, probation is a maximum of six (6) months. To recap:-
- Category 1: Fixed Contract less than six (6) months – No fixed term contract can be shorter than six months unless shorter period is justified. If permitted, probation will be 1/3rd of the duration of the fixed term contract;
- Category 2: Fixed Contract between six to fifteen (6-15) months – period is calculated on basis of two-month probation per six months work duration;
- Category 3: Fixed Contract more than fifteen (15+) months – probation of six months maximum.
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- those cases of alleged unfair dismissals;
- claims related to Article 36 of the principal act, on termination of employment contracts; and
- all cases falling within their jurisdiction under Title 1 of the principal act, namely all rules determining Employment Relations, including but not limited to the main recognised conditions of employment such as working time and leave entitlement and payment of wages, protection against all forms of harassment, victimisation and discrimination at the workplace as well as probation matters and termination of employment contracts.
Authors: Ann Bugeja & Christine Borg Millo
Footnotes [1] Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union [2] Subsidiary Legislation 452.83 of 1st January 2003 [3] Article 1 of Directive (EU) 2019/1152 [4] Article 2 of Cap.452 [5] Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union [6] Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union Para.27 [7] Refer to article 36 (1), (1a) and its provisos under Cap.452 which transposes article 8 of the EU Directive [8] A fixed term contract of work is a definite yet atypical contract in which the termination of employment is known to both parties, agreed among them and defined in the contract itself. This is as opposed to an indefinite work contract, acting as the presumption to the rule of employment contracts, in that it is favoured by local legislation and does not possess a termination date. [9] Refer to article 36(1c) of Cap.452
Amendments to the Aircraft Registration Act: Key Observations.
14th April 2022 Malta is an optimal jurisdiction for Aircraft Registration and many advantages come part and parcel with registering an aircraft in the Maltese islands[1]. On the 6th of June 2021, the President of Malta signed Act XXXVII of 2021 into law. The raison d’etre of this act aimed to amend several laws which relate to aircraft registration in Malta and recognise further relevant EU regulations which provide common rules for civil aviation and the European Union Aviation Safety Agency (EASA). The impetus of these amendments will be analysed below:A snapshot of directors’ exposure to liability for crimes attributable to a company in the light of Maltese law
14th April 2022 One of the principal objectives of company law is to strike a workable balance between, on the one hand, granting sufficient discretion to the directors of a company to exercise their powers in furtherance of the pursuit of the company’s business objectives whilst, on the other hand, constraining the abuse of those powers by directors.Directors are subject to various legal duties and obligations in the performance of their functions. A material breach of these obligations could have severe consequences ranging from administrative fines to criminal fines and even imprisonment. These potential outcomes clearly leave directors of Maltese companies exposed to the risk of a criminal record which would, of itself, disqualify them from holding office as a director of a Maltese company. This article is intended to provide a snapshot of the general risks faced by directors of Maltese companies in the performance of their functions, together with some suggestions as to how these risks could be managed.
Who is deemed to be a director under Maltese law?
The Maltese Companies Act (Chapter 386 of the Laws of Malta) (the “Companies Act”) provides that the term ‘director’ should be interpreted to include any person occupying the position of director of a company by whatever name he may be called, who carries out substantially the same functions in relation to the direction of the company as those carried out by a director. Thus, it is important to note from the outset that, contrary to common belief, the role of a director extends beyond the ‘traditional’ role of a director formally appointed and identified as such through the Malta Business Registry (the “MBR”). In practice, a distinction is frequently drawn between executive directors and non-executive directors (NEDs), which perhaps is primarily driven by the Malta Financial Services Authority (the “MFSA”), Malta’s regulatory authority responsible for regulating financial services activities and also encompasses the Listing Authority which is responsible for overseeing the Maltese capital market. The distinction between executive and non-executive directors is driven primarily by governance considerations, distinguishing those directors who run the company’s day-to-day operations from those whose principal role is to attend and participate in board meetings of the company, during which they are collectively expected to oversee the general governance of the company, its proper administration and management, and to tend to the general supervision of its affairs. It is pertinent to note that the Companies Act creates no such distinction between executive directors and non-executive directors, in line with the principle of collective liability on which Maltese (and Anglo-Saxon) corporate governance principles are based.General and specific duties of directors
The duties of directors can be classified under two categories, namely general duties and specific (or administrative) duties. The general duties of directors are found in the provisions of Article 136A of the Companies Act which can be classified into two further sub-categories, namely (i) duties of loyalty, and (ii) duties of care and skill. Administrative duties on the other hand consist of specific statutory obligations which are incumbent on directors and consist principally of acts of an administrative nature. In the case of any breaches of administrative duties, nominal financial penalties would typically be imposed by the Registrar of Companies (the “ROC”), which penalties may ultimately be enforced against the director personally. These duties would typically include, amongst others, the duty to keep an updated register of members as well as the duty to file the appropriate returns and documents with the ROC in a timely manner, including the annual accounts, notification of share transfers and changes in the company’s constitutive documents, officers or ultimate beneficial owners. Apart from these duties, many other duties arise from a wide array of specific legislation such as the Prevention of Money Laundering Act (Chapter 373 of the Laws of Malta), the Social Security Act (Chapter 318 of the Laws of Malta), and the Value Added Tax Act (Chapter 406 of the Laws of Malta), not to mention several other laws which lay down the regulatory framework for a number of key strategic industries (financial services, pharmaceuticals, gambling etc), a breach of which could lead to personal criminal liability. Directors are also subject to certain fiduciary obligations which are covered both by Articles 1124A, 1124B and 1871 of the Maltese Civil Code (Chapter 16 of the Laws of Malta) (the “Civil Code”), as well as by Article 136A of the Companies Act, which specifically addresses the duty of loyalty. Can a company be held criminally responsible? Or could that criminal liability actually fall upon one or more of the individual directors of the company? Historically, criminal liability could not be attributed to anyone other than a physical person, essentially based on three main lines of argumentation[1]:- a legal person cannot be held criminally liable because it does not have its own brain and therefore lacks the capacity of will and understanding- these being attributes of physical/natural persons;
- a company/corporation cannot be physically sent to prison and, moreover, certain criminal sanctions, such as a suspended sentence or a probation order, cannot be imposed on a legal person; and
- a company can only perform those acts that it is, according to its memorandum and articles of association, legally empowered to do. Consequently, if a legal person committed a crime, such an act was necessarily ultra vires and therefore null and void.
A Director’s Exposure to Criminal Liability
The notion of criminal liability of directors can be divided into two broad categories: i) Direct criminal liability As one would assume, direct criminal liability arises in situations where a director directly (i.e. personally) violates a specific provision of the law, a breach of which would constitute a criminal offence punishable by a fine or imprisonment, or a combination of both. In such circumstances, the director would be held criminally liable for an offence which he/she committed through his/her own acts or omissions, such as in cases of fraud or embezzlement. ii) Vicarious criminal liability This aspect of criminal liability is not as straightforward as direct criminal liability, in the sense that in such cases, a director may be held liable for an offence committed by someone else, namely the company of which he is a director, as set out in Article 13 of the Interpretation Act. As observed earlier, in such cases there is an ‘inversion’ in the onus of proof, in the sense that whilst the prosecution (i.e. the party bringing the claim) must prove that the offence was committed by the company, the director must then prove that the offence was committed without his knowledge, and that he exercised all due diligence to prevent the offence from happening. With reference to the level of care required from company directors, our Courts have held that such duty of care implies the appropriate supervision of the affairs of the company. As a corollary of this principle, a director cannot turn a “blind eye” to the affairs of the company, and subsequently plead that he was not aware of the act or omission that gave rise to the criminal offence. The law therefore requires and imposes that the director exercises active and continuous supervision of the affairs of the company so as to ensure that the company is compliant with the law whilst pursuing its commercial objectives. In terms of the Companies Act, the personal liability of a director in damages for any breach of duty may not apply only in the following circumstances:- when a duty is entrusted to one or more of the directors only (in which case only said director shall be liable for damages);
- when a director (in the case of co-directors) can prove that he was unaware of the alleged breach at the time of its occurrence and upon becoming aware of such breach he signified his dissent in writing; or
- when a director is aware that another co-director is planning a breach of duty and he/she takes all reasonable steps to prevent it.
Best practices for directors to mitigate the risk of liability
Personal criminal liability constitutes the highest level of risk which an individual may be exposed to, not only due to the severity of the punishment, but also since, in cases of vicarious criminal liability, the offence may be committed without any direct involvement or knowledge of the director as examined above. Whilst it is clear that reducing the risk of vicarious criminal liability is challenging, there are some measures that directors of a Maltese company can adopt in order to manage that risk. To begin with, prior to accepting the role of director of a company, it is recommended that such individual carries out an extensive due diligence exercise on the company or board, targeted at the good standing of the company in question- whether or not it holds any government licence/s or permit/s to operate its business; whether or not all tax, VAT and social security dues have been settled; an analysis of any pending legal proceedings instituted by or against the company; and a comprehensive assessment of any environmental, health or other risks to which the company could be exposed, to name a few. If such a due diligence exercise raises any ‘red flags’, then the nominated director would be well advised to address all concerns that he/she may have prior to accepting the position and, if necessary, obtain the required legal, financial or other professional advice. Once appointed, directors should also ensure that regular board meetings are held, and that such meetings are conducted in an organised and transparent manner. Minutes of meetings should always be kept, and directors should ensure that any dissenting opinions are properly recorded in these minutes. Such dissenting opinions could very well serve to exonerate the dissenting director in circumstances where the decision/s dissented from are the cause of the criminal liability risks. Here, again, the director should ensure that the appropriate professional advice is sought on any topics or issues with which he/she may not be entirely comfortable or conversant. Other possible measures which could be implemented by directors who, for instance, wish to manage health and safety risks, would include the setting up of a Health and Safety Committee and the appointment of a Health and Safety Officer (appointed by the Board of Directors), who would be charged with ensuring that all health and safety records and measures are kept in an accurate and detailed manner. Ultimately, each director taking a proactive involvement in the management of the company’s risks, and ensuring that the company’s internal control systems and governance structures are fully functional, serve as effective mechanisms to reduce the risk of exposure to vicarious criminal liability.© GVZH Advocates- 2022 The contents of this piece do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal or other professional advice in relation to the specific circumstances you or your organisation may be dealing with. [1] Dr Joe Giglio, “Can a Company be sent to Prison?”, published in The Times of Malta, 1st September 2019, https://timesofmalta.com/articles/view/can-a-company-be-sent-to-prison.732067. [2] Ibid.
Article on the recent changes affecting a contract of employment that requires the employee to work mainly outside Malta
8th April 2022 On the 11th October 2021, the Minister for Finance and Employment Hon. Clyde Caruana has delivered the budget speech which was later followed by the publication of Bill No. 247 before Parliament. The principal aim of this Bill was to enforce some of the measures discussed in the Budget Measures Act, effective from financial year 2022, alongside other measures of an administrative nature.Couriers and Delivery Drivers – A special Category within Employment Legislation?
8th April 2022 Since the start of the Covid-19, many industries have had to be reshaped. Curfews, restrictions and temporary closures applicable to restaurants, bars and even retail outlets have promoted a trend towards takeaway and delivery services as opposed to dining in and in-store shopping. As a result, the past few years have seen a boom in the courier and delivery service industry, with it establishing its position as a major employment hub for third country nationals working in Malta. Along with the expansion of this industry, many have observed an increased level of scrutiny in respect of the substandard working conditions experienced by courier and delivery drivers, who are often engaged on self-employed or part time basis despite their working patterns indicating otherwise.The Battle of the IDERA and the Warrant of Prohibitory Injunction
8th April 2022 The decision in the names of Air X Charter Limited and Air X Aircraft Finance I Limited (collectively referred to as the “Applicants”) vs. (1) Firm Mamo TCV Advocates as Deputy Curators acting on behalf of Avmax Aircraft Leasing Inc (Canada) (“Avmax”) as beneficial owner of eight aircraft (the “Aircraft”) and Bank of Utah (United States of America) acting as owner trustee of the Aircraft and (2) The Malta Transport Authority (the “TM”) (collectively referred to as the “Respondents”), delivered on the 8th November 2021, is regarded by many as unprecedented as the court upheld the enforcement of rights under the Irrevocable De-registration and Export Request Authorization (the “IDERA”) over the request for the issuance of a warrant of prohibitory injunction to curtail the Respondents’ rights to implement their IDERAs over the Aircraft. The First Hall, Civil Court, presided over by Hon. Justice Robert G. Mangion, revoked a warrant of prohibitory injunction that had been issued provisionally by virtue of a court decree issued on the 24th September 2021.The Ongoing Obligations of Agents: Do Obligations follow the Agent After a Passport is Issued?
8th April 2022 The Citizenship for Exceptional Services Programme is a highly regulated mechanism currently enabling foreign nationals to acquire Maltese citizenship through investment. This process is facilitated by the engaged licensed agent, who acts as the primary intermediary between Maltese authorities and the applicant. The regulatory framework applicable to this programme also binds licensed agents in terms of their qualifications, functions, conduct and duties. Nevertheless, the relevant instruments are rather unclear as to the extent to which these duties and functions apply in relation to applicants whom licensed agent would have assisted after they obtain a Maltese passport.Changes to the Existing Tonnage Regulations
3rd November 2021 In recent months, the Tonnage Regulations (Subsidiary Legislation 234.19) underwent minor developments through the Tonnage (Amendment) Regulations (Legal Notice 165 of 2021), which primarily introduced new definitions for ‘Hull Length’ and ‘Length Overall’ (‘LOA’). This has significantly altered the way in which vessels and yachts are measured for the purpose of obtaining the applicable Tonnage Certificate. Supplementing the new amendments, Transport Malta also published comprehensive guidelines on the measurement of different types of yachts and vessels.Malta Start-Up Residency Permit 2022
28th October 2021 During Malta’s Financial Budget 2022, Finance Minister, Clyde Caruana has publicized a new directive targeting third-country nationals who would like to embark on the start-up of their business in Malta. Such entrepreneurs who wish to reside in Malta and to legally establish an EU wide start-up, ought to have a successful entrepreneurial history together with a business objective and proven success in a third country. The Malta Enterprise along with Malta Residency Agency promises entrepreneurs, permanent EU residency and sunny Malta as their new domicile. Attractive packages, opportunities and benefits are awaiting such start-ups. Further details on this programme will be communicated in the coming weeks. This is one of many programmes which Malta has to offer to foreign nationals, with the intention of encouraging them to relocate to Malta.Revisiting the Organisation of Working Time (Civil Aviation) Regulations
28th October 2021 In the past few months, the civil aviation sector has started to bounce back from the repercussions of Covid 19, making it an opportune time to revisit the industrial rules applicable to civil aviation workers.The Merchant Shipping Directorate’s New Pleasure Yacht Changeover Guidelines
21st October 2021 The Merchant Shipping Directorate of Transport Malta has issued the ‘Commercial Yacht – Pleasure Yacht Guidelines (‘the Guidelines’) on the 2nd of September 2021. The Guidelines provide carefully devised considerations for yacht owners who wish to make the change from a commercial yacht to a pleasure yacht or vice-versa and highlight every step of the process.Paternity Leave in Malta: Is Change Around the Corner?
4th October 2021 Gender equality is a core principle in this day and age. From an employment perspective, gender equality is not only about lessening the pay gap, but also about treating both genders equally and ensuring that every individual has access to the same equal opportunities. Despite being in the 21st century, gender inequality remains one of the biggest issues which society faces. In Malta, we still undoubtedly have certain gender stereotypes, wherein people within a society are led to believe that a specific gender must carry out a specific role. It is evident that one parent (whether male or female), is expected to drop everything to focus on taking care of their newborn child following birth, and it has become common practice that such parent utilizes maternity leave in this regard, irrespective of whether one wishes to do so or not. In fact, this way of thinking is also reflected in our legislation. Under Maltese law, a pregnant woman who is in employment is entitled to 18 uninterrupted weeks of maternity leave, where the first 14 weeks are paid by the employer, and the remaining 4 weeks are paid by the Government. As a general rule, such employee must inform her employer that she intends to avail of such leave, at least 4 weeks in advance. On the other hand, as per Subsidiary Legislation 452.101, the ‘Minimum Special Leave Entitlement Regulations’, a father is entitled to birth leave consisting of 1 working day on the occasion of the birth of his child. Another option is that of parental leave which is regulated by Subsidiary Legislation 452.78, the ‘Parental Leave Entitlement Regulations’. Here, both male and female workers have the individual right to be granted unpaid parental leave in cases of birth, adoption, fostering, or legal custody of a child to enable them to take care of that child for a period of 4 months until the child has attained the age of 8 years. Parental leave can be availed of in established periods of 1 month each. For an employee to be eligible to apply for parental leave, such employee must have covered at least 12 months of continuous service with his / her employer, unless a shorter period is agreed to between the employee and employer. Thus, taking everything into consideration, fathers are either entitled to paternity leave amounting to 1 working day at full pay, or else can choose to opt for unpaid parental leave. Needless to say, much more needs to be done.The EU Work-Life Balance Directive
In 2019, the EU Work-Life Balance Directive (Directive 2019/1158) entered into force. The main aim of the Directive is to improve access to family leave and flexibility arrangements. As from the 1st August 2019, all Member States have a period of 3 years within which to transpose this Directive into their national legislation. Measures under the Directive include: The introduction of paternity leave where fathers shall be eligible to take at least 10 working days of paternity leave around the time of the birth of their child, compensated at least at the same level of sick leave entitlement;- Ensuring that 2 out of the 4 months of parental leave are non-transferable between parents and compensated at a level that is determined by the Member State;
- The introduction of carers’ leave, where workers providing personal care or support to a relative will be entitled to 5 days of leave per year; and
- Extending the right to request flexible working arrangements to carers and working parents of children up to 8 years old.
Comparison with Other European Countries
A comparative study, as indicated in the below table, has been carried out in order to assess the paternity leave situation in other EU Member States:EU Member State | Leave entitlement |
Sweden | Parents in Sweden are entitled to 480 days of paid parental leave when a child is born or adopted. Each parent, should they be 2, is entitled to 240 of those days. |
Finland | Fathers can, after the birth of the child, take paternity leave for a maximum of 54 working days. Of this, the father can be at home at the same time as the mother for a maximum of 18 working days, i.e. approximately 3 weeks. |
Norway | Mothers can take 49 weeks at full pay or 59 weeks at 80% pay, and fathers can take between zero and 10 weeks depending on their wives’ income. Together, parents can receive an additional 46 weeks at full pay or 56 weeks at 80% of their income. |
Denmark | In total, parents in Denmark are entitled to 52 weeks of paid parental leave. Fathers are entitled to take 2 weeks of leave during the first 14 weeks after the birth of the child. Then 32 weeks follow where the mother and father can freely share leave between them. |
Italy | Paternity leave (‘congedo di paternità’) includes a seven-day compulsory paid leave period which can be taken separately and can be claimed within 5 months from the child’s birth, granted at the same time as the maternity paid leave. |
France | The duration of paternity leave is set at 11 consecutive days, or 18 consecutive days in the event of a multiple birth. |
Spain | On 1st April 2019, paternity leave in Spain was extended from 5 to 8 weeks. On 1st January 2020, it was further extended to 12 weeks. On 1st January 2021 it was extended a further 4 weeks for a total of 16 weeks, making fathers’ paid time off equal to paid maternity leave for the first time in Spain’s history. |
Netherlands | Fathers are entitled to 5 weeks of paternity leave (‘vaderschapsverlof’), at a rate of 70% of one’s regular pay. |
Poland | All insured fathers are entitled to 2 weeks of paid paternity leave (‘urlop ojcowski’), which can be used until the child is 24 months old. |
Portugal | Paternity leave in Portugal is allowed for working fathers for 5 consecutive days after the birth of the baby, plus an additional 10 days within 30 days of the birth, which do not need to be consecutive. |
Concluding Remarks
Why is it that under Maltese law, mothers are entitled to several weeks of maternity leave, whereas fathers are only entitled to 1 single day of paternity leave? Aren’t fathers also a parent of the newborn child? In 2021, you would expect that the amount of paternity leave has been brought on par with that of maternity leave, however, unfortunately, it is still not the case in several countries, including Malta. Work-life balance remains an important aspect in a healthy work environment and undoubtedly improves one’s quality of life. Malta has a long way to go and the implementation of the new Work-Life Balance Directive definitely constitutes the first step in this much-awaited journey.Transferring Personal Data Outside The EEEA? The Impact of The New Standard Contractual Clauses in Brief
8th September 2021 If you are required to transfer personal data outside the EEA, you will be aware of the European Commission’s standard contractual clauses for controller to controller (C2C), and controller to processor (C2P) transfers. On 4th June 2021, the European Commission released its highly anticipated new standard contractual clauses (‘SCCs’) for the transfer of personal data to third countries, which have entered into effect on 27th June 2021. The new SCCs consider international processing scenarios and address different processing scenarios which could entail multiple data importers and exporters.New Life Insurance Policy And Home Loans Government Scheme For Persons Suffering From Disability.
7th September 2021 Every year, it is estimated that around up to 40 people suffering from disabilities request an insurance company to acquire life insurance for the purpose of obtaining a home loan. However, there are instances where insurance companies may end up refusing said requests due to how excessive the applicant’s medical bills can be. As a result, some people end up never obtaining a home loan due to the mandatory requirement of having a life insurance.Towards a Regulated Property Sector
24th August 2021 Throughout the past decade, the property market experienced substantial development, making the real estate sector a central pillar in the local economy. In view of this, the Maltese legislator has set out to regularise the real estate sector by means of a bill designed to streamline actors in a property transaction. The regularisation of the sector has been achieved through the introduction of a licensing system issued by the newly established Licensing Board (the Board). As of 1st January 2022, all real estate agents, property brokers and property consultants shall be required to obtain a license to legally engage in intermediary activities. This will in turn result in an increased standard of legal protection for consumers. Persons engaging in such activities themselves will also benefit due to a register of licensees being kept and published by the Board, an increased standard of public trust, authenticity of qualifications and remuneratory protection.The Potential of Blockchain to Revolutionise the Maltese Maritime Industry
24th August 2021 A ‘blockchain’ is a system which can record transactions between two parties in an efficient, verifiable, and permanent way, where transactions made in a cryptocurrency are recorded and maintained across several computers which are linked in a peer-to-peer network. These records are referred to as ‘blocks’ where each ‘block’ contains a timestamp and transaction data and once recorded, the data in a block cannot be changed without affecting and changing the subsequent blocks. In simple terms, blockchain is a digital platform which is used for recording and verifying transactions which cannot be reversed.Green Shipping: The Not-So-Distant Future?
12th August 2021 With green hydrogen stocks flying through the roof in 2020, it is no secret that this zero-carbon phenomenon is enjoying a worldwide unprecedented political and economical momentum. As a testament to its new-fangled global interest, the universal demand for hydrogen has grown threefold since 1975, with many countries now jumping on the bandwagon, aiming for net-zero carbon emissions by 2050.The Requirements for a Valid Will Under Maltese Law
21st July 2021 Under Maltese law, wills are mainly regulated by the Civil Code, Chapter 16 of the Laws of Malta (the “Code”), which inter alia defines a will as an instrument by which a person disposes of his/her property for the time when he/she shall have ceased to live, and establishes that wills can always be revoked by the person making such will, who is referred to as a ‘testator’.Increase in Minimum Wage for Seafarers Through Recent Amendments to the Seamen Wages Council Wage Regulation Order
19th July 2021The Interplay with Other Applicable Maritime Law Provisions
Whilst also regulated under the Merchant Shipping Act (“MSA”) and the Merchant Shipping (Maritime Labour Convention) Rules (“MSR”), these standards ought to be differentiated by proper assessment of each of the applicable laws’ scope. In accordance with the Order’s explanatory note, its provisions are to apply solely to “all employees on board ships regularly operating within the territorial waters of Malta, but do not apply to employees working on board fishing vessels or foreign going ships”. On the other hand, the MSA and the MSR cater for seafarers aboard vessels flying the Maltese flag. Article 39 of the Employment and Industrial Relations Act (“EIRA”) establishes that certain provisions contained in the EIRA shall not apply in relation to seamen employed on ships under the provisions of the MSA, and establishes that in the event of any conflict between the provisions of the EIRA and the MSA, the provisions of the MSA shall apply.Amendments to the Aircraft Registration Act: Key Observations.
16th July 2021 Malta is an optimal jurisdiction for Aircraft Registration and many advantages come part and parcel with registering an aircraft in the Maltese islands[1]. On the 6th of June 2021, the President of Malta signed Act XXXVII of 2021 into law. The raison d’etre of this act aimed to amend several laws which relate to aircraft registration in Malta and recognise further relevant EU regulations which provide common rules for civil aviation and the European Union Aviation Safety Agency (EASA). The impetus of these amendments will be analysed below:A Newly Launched Residence Opportunity: the ‘Malta Permanent Residence Programme’
25th May 2021 The Malta Permanent Residence Programme (hereinafter ‘MPRP’) was launched on the 29th March 2021 by virtue of Legal Notice 121 of 2021. The MPRP is a residency-by-investment programme which essentially entitles the beneficiary (who must be a non-EU national) to the right to settle, stay and reside in Malta on a permanent basis. In addition, one may also avail of VISA-free travel throughout the Schengen zone.Abolishment of the Employment License Requirement
19th May 2021 Prior to the 11th of March 2021, all third country nationals who had long-term residence status in Malta were still expected to obtain an employment license in order to work in Malta. This has changed following the publication of Legal Notice 84 of 2021.EU Commission proposes measures to ensure equal pay for equal work: the EU Pay Transparency Directive
7th May 2021 Earlier this year, the European Commission presented a proposal on pay transparency, aimed at ensuring that women and men receive equal pay, for equal work.Introducing Regulation (EU) 2019/1238 on a pan-European Personal Pension Product (PEPP)
23rd April 2021 On 26 March 2021, the MFSA issued a Circular regarding the implementation of Regulation (EU) 2019/1238 on a pan-European Personal Pension Product (the Regulation). Applicable as from 22 March 2022, the Regulation recognizes that despite EU households being among the highest savers in the world, the bulk of those savings are held in bank accounts with short maturities. The Regulation further recognizes that old age pensions constitute an essential part of a retiree’s income.ASDA workers win latest round of long-running equal pay fight
6th April 2021 A Supreme Court decision has given more than 44,000 Asda employees victory in their fair pay fight with their employers paving the way for a legal battle that could last years.Abolishment of ‘Employment License’ Requirement for Residents with Long Term Status
19th March 2021 In July 2020, the EU Commission (‘Commission’) initiated infringement procedures against Malta in relation to the abolishment of the employment license requirement for residents with long term status as the Commission concluded that such requirement represents an infringement of Article 11(1)(a) of the Long-Term Residence Directive (2003/109/EC) (‘Directive’).The Suspension of Company Directors’ Liability – What’s the Story?
15th March 2021 On 15th September 2020, the Companies Act (Suspension of Filing for Dissolution and Winding Up) Regulations (the ‘Regulations’) were introduced as part of several other measures intended to protect local businesses from the adverse economic impact brought about by the COVID-19 pandemic. They became applicable retrospectively as from 16th March 2020.ESMA issues Consultation Paper on Draft RTS under ECSP Regulation
15th March 2021 In October 2020, the EU approved a new regulation (Regulation (EU) 2020/1503) establishing crowdfunding rules applicable across the Union. The Regulation is applicable to European Crowdfunding Service Providers (ECSP).The Equality Bill and its Impact on Employment
9th March 2021 Whereas the right not to be treated in a discriminatory manner is enshrined in the highest law of the land – the Constitution, measures in favour of protection against discrimination specifically in relation to employment matters may be found both in the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta), as well as the Equality for Men and Women Act (Chapter 456 of the Laws of Malta).Will The Right to Disconnect become the New Reality?
4th March 2021 The right to disconnect refers to a worker’s right to be able to disengage from work and refrain from participating in work-related communications, such as emails and WhatsApp messages, during non-working hours.The Reinstatement of an Employee Following a Case of Unfair Dismissal
4th March 2021 The Employment and Industrial Relations Act[1] (‘EIRA’) regulates the powers of the Industrial Tribunal (‘Tribunal’) in cases of dismissal. Article 81(1) of the EIRA states that upon concluding that the dismissal of an employee was unfair, and upon the specific request by the complainant, the Tribunal may proceed with the reinstatement or re-engagement of such employee.The Recharacterisation of Employment – A Reality
2nd March 2021 A preliminary ruling given by the Industrial Tribunal on the 15th of December 2020 in the case of Bourgeais vs. Sara Grech Ltd.[1], has shed some well needed light on the matter of recharacterisation of employment in terms of the Employment Status National Standard Order, Subsidiary Legislation (‘SL’) 452.108[2].Public Tenders and Contracts in Malta; An Insight into the Key Requirements and Notions
23rd February 2021 Under Maltese law, the main legislative instrument in the field of public tendering and contracting is the Public Procurement Regulations, Subsidiary Legislation (‘SL’) 601.03.Clarification Issued by the FIAU with respect to Insurance Brokers and Tied Insurance Intermediaries
22nd February 2021 On 2nd February 2021, the Financial Intelligence Analysis Unit (FIAU) issued an Interpretative Note in relation to the interpretation of Article 2(1)(d) of the Prevention of Money Laundering and Funding of Terrorism Regulations (the “Regulations”), the interpretation of which was causing difficulty to certain entities and individuals operating within the insurance sector.Sustainable Finance – Are you ready for 10 March 2021?
19th February 2021 Sustainable finance has, after years of ongoing debate, finally come to the forefront of regulation within the EU. Until now, financial regulation has primarily required financial institutions to focus on financial risks for clients. Increasingly, there is a demand that such institutions look at investments’ sustainability risks and opportunities.A Critical Benefit of the Maltese Maritime Flag: Court-Approved Private Sales
25th January 2021 The continued success of the Maltese Maritime Flag can be greatly attributed to the protection given to financiers and creditors of vessels registered under the Maltese Flag.A ‘judicial sale’, as defined by Lief Bleyen, is the “sale of a ship by a competent authority by way of public auction or private treaty…by which Clean Title to the Ship is acquired by the Purchaser and the proceeds of sale are made available to the creditors.” Act XIV of 2006 amended Article 358 of the Code of Organisation and Civil Procedure (‘COCP’), introducing a novel procedure of Court-approved private sales for aircraft and vessels in addition to the traditional judicial sale by auction. Therefore, under Maltese law, there are two types of judicial sales:Protecting a Vessel’s Creditors: Precautionary Measures Prohibiting Dealings and Transfers
19th January 2021 Article 37 of the Merchant Shipping Act (Chapter 234 of the Laws of Malta) is a mechanism which is particular to Malta, further securing Malta’s position as the largest ship registry in Europe.Article 37 deals with the power of the Court to prohibit any dealing with a ship, or any share therein. Here, the Civil Court, First Hall, may, if it thinks fit, on a demand by a sworn application of a person claiming a right in or over a Maltese ship, make an order prohibiting any dealing with a Maltese ship, or any share therein.Revival of Defunct Companies
14th January 2021 During the first half of 2020, around 10,000 defunct companies were struck off the Malta Business Registry (‘MBR’), in light of a ‘cleaning-up exercise’ undertaken by the local Registrar of Companies (‘Registrar’) in an attempt to remove companies which did not appear to be trading and which have not kept up with the necessary annual filings required in terms of local law.Brexit Trade and Cooperation Agreement | The Impact on Aviation
14th January 2021 Following years of ambiguity and fractious negotiations, it was finally announced that on a Christmas Eve like no other, the European Commission and the United Kingdom (UK) had reached a consensus concerning the long-awaited Brexit Trade and Cooperation Agreement (TCA) worth over £650 billion, which shall determine the terms and conditions of their relationship and future collaboration.The TCA provides for a chapter dedicated to aviation services and aviation safety. In a nutshell, the significant points are the following:Malta’s NFDI Screening Office Act is Out
14th January 2021 On the 18th of December 2020, Malta’s National Foreign Direct Investment Screening Office Act (the ‘NFDISO Act’) was published, which came into force on the 11th October 2020 and implements Regulation (EU) 2019/452.Last year, the NFDI Screening Office (“NFDI Office”) was set up in Malta, ahead of the publication of the NFDISO Act in compliance with the Regulation. In accordance with the NFDISO Act, the NFDI Office has the power and authority to assess, investigate, authorise, condition, prohibit or unwind a foreign direct investment (‘FDI’) on grounds of security or public order in Malta, as well as implement screening decisions, report annually to the European Commission, and liaise with the authorities of third countries on FDI screening-related issues.The Newly Introduced Malta Permanent Residence Program
14th January 2021 During a seminar spearheaded by Parliamentary Secretary Alex Muscat and MRVA CEO Charles Mizzi on the 12th of January, 2021, details were given about a new residency program, which shall be entitled “Malta Permanent Residence Program”. This program is set to replace the Malta Residence and Visa Program (MRVP), which shall be phased out by March 2021, and after the new program receives the green light from Parliament.The Malta Permanent Residence Program is set to increase the revenue generated by such programs and seeks to put to Malta further on the map.A GVZH Guide for British Yacht Owners (as per recent RYA published guidelines)
2nd December 2020AN INTRODUCTION TO A GVZH GUIDE FOR BRITISH YACHT OWNERS
MIIP Reform Update: Granting of Citizenship for Exceptional Services
25th November 2020 By virtue of Legal Notice 437 of 2020 which was issued on Friday 20th November 2020, the Granting of Citizenship for Exceptional Services Regulations has been launched.Restructuring of the MFSA Loan Funds Regime
25th November 2020 Mindful of the fact that certain businesses are finding it increasingly difficult to gain access to capital through traditional lending sources, on the 10th of November 2020, the Malta Financial Services Authority (‘MFSA’) restructured the Loan Funds Regime by publishing a revised version of the Loan Funds Rules, the aim of which is to achieve a better balance between the need for a comprehensive regulatory framework and making the regime more practical and accessible to the fund industry. The revised Rules are applicable from the 10th November 2020 onwards.NFDI Provides Update Regarding Notification Forms
19th November 2020 The National Foreign Direct Investment Screening Office (“NFDI Office”) was set up in Malta, in order to implement the provisions of EU Regulation 2019/452. On the 14th of October 2020, the NFDI Office published a Circular on its website whereby it notified Corporate Service Providers that Notification Forms must only be submitted to the NFDI Office when all of the 3 below-mentioned conditions are met:Brexit and its Impact on your EU trademarks
11th November 2020 The United Kingdom’s (‘UK’) decision to leave the EU in July 2016 has left not only a political challenge for diplomats, but also a legislative one, raising doubts and uncertainty regarding the effects of the post-transition period in the legal sphere.The Interpretation of ‘Extraordinary Circumstance’ in Air Passenger Rights in Recent CJEU Case-Law
9th November 2020 Flight cancellations and delays are not a novel concept. Luckily, the EU Regulation 261/2004 provides rules and conditions whereby passengers can seek compensation and assistance in cases of cancellation or long delays. The regulation is arguably ambitious, in that it grants the ordinary passenger a set of rights which in turn, imposes legal obligations on the airline to cater for those same rights.The Definition of Redundancy under Maltese Law
20th October 2020 When terminating on grounds of redundancy, Maltese law states that an employer must always follow the last in, first out rule. Thus, the last person engaged within a class of employees affected by the redundancy should be the first to be made redundant. The only exception to the last in, first out rule is where the person who is last in, is related to the employer (not being a limited liability company or statutory body) by consanguinity or affinity up to the third degree, and thus, the employer may instead terminate the employment of the person next in turn instead. A class of employees is defined by law as “the work performed or expected to be performed independently of the title or name given to the post in situations where there is no collective agreement in place.” This means that an employer must differentiate between the employees based on the tasks they perform in practice in their day-to-day job duties in order to categorise the employees into classes.Compensation Awarded by the Industrial Tribunal | How is it Changing and Why?
19th October 2020 Maltese Legislation does not impose an obligation on the Industrial Tribunal (hereinafter ‘Tribunal’) to include its reasoning for why a certain decision was taken and why damages were liquidated at a certain amount. Over the years this has led to a lot of uncertainties since when one tries to analyse past cases of the Tribunal in order to attempt to identify a pattern in decisions, there appear to be no hard and fast rules upon which the decisions were taken.This is in fact pointed out in the recent judgement of Michelina Bonnici vs Specialist Group Cleaners Limited[1], wherein the Court of Appeal noted that inferior courts are not obliged to include all the reasons which led them to taking such a decision and are only obliged to mention the main points which the court bases itself on. Chapter 452 of the Laws of Mata (Employment and Industrial Relations Act) states that the Tribunal need only indicate the factors taken into account before establishing compensation.Does Competition Law fit the Digital Bill?
19th October 2020 Typically, Competition law regulates anti-competitive conduct by companies within a pre-defined market. In doing so, Competition law will seek to ensure that firms and players in a market interact with one another in a way that is fair. Anti-competitive behaviours can take on two main forms in the field of Competition law: they might include anti-competitive agreements, i.e. collusion between competitors in a market, or abusive behaviour by a dominant undertaking over another undertaking. These are dealt with under Articles 101 and 102 of the Treaty on the Functioning of the European Union, or ‘TFEU’, respectively. Competition law exists not only to protect consumers, but also to maintain effective competition in any given economy; it has evidently worked well ever since its inception, at least in the so-called ‘traditional’ economies – that is until the advent of the digital economy.Shareholders precluded from bringing unfair prejudice action once the Court has issued buyout order
16th October 2020 On the 13th of July 2020, the Civil Court (Commercial Section) gave what can be deemed to be a landmark decision.Have Your Say: Public consultation on laws granting more power to EU MS Competition Law Authorities
16th October 2020 With the entry into force of Regulation 1/2003 on May 1, 2014, the National Competition Authorities (“NCAs”) of the 27 Member States and the European Commission became the “European Competition Network”. This network aims at ensuring the effective enforcement of EU Competition Law, namely Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”).15 years after entry into force of this Regulation, Directive 2019/1[1], commonly referred to as the ECN+ Directive, was adopted to standardise the status of the NCAs and empower them to be more effective enforcers so as to ensure the proper functioning of the internal market thereby unifying the enforcement of EU competition law across the 27 Member States. This Directive must be transposed into Maltese law by 4th February 2021.The Importance of having an IT Security Policy in place
16th October 2020 Organisations need well designed IT security polices to ensure the success of their cyber-security strategies and efforts. The lack of an IT security policy can result from various reasons, but more often than not, include limited resources to assist with developing policies, slow adoption by management, or a lack of awareness of the importance of having an effective IT security program in place.The Concept of Single Source of Employment – Widening the Net for Equality of Pay?
16th October 2020 The concept of Single Source of Employment is intimately linked with the notion of “equal pay for equal work”, a notion which is not only enshrined in our Constitution and which guarantees the constitutional right that women workers enjoy equal rights and the same wages for the same work as men, but is also regulated by the Employment and Industrial Relations Act (EIRA) which requires that employees in the same class of employment are entitled to the same rate of remuneration for work of equal value. The said provisions are in line with Malta’s obligation as an EU Member State to ensure that the principle of equal pay of male and female workers for equal work or work of equal value is applied and this in terms of Article 157 of the EU Treaty (previous Art. 141 of the EC Treaty).Malta sets up the National Foreign Direct Screening Office
23rd September 2020 The NFDI Screening Office (“Office”) was set up in order to implement the provisions of EU Regulation 2019/452 of the 19th of March 2019, establishing a framework for the screening of foreign direct investments into the Union. This Regulation relates particularly to foreign direct investments, or ‘FDIs’ which are likely to affect security or public order and which establish or maintain lasting and direct links between investors from third countries including state entities and undertakings carrying out an economic activity in a Member State. While the Regulation is directly applicable in Malta, the local law in relation to the same has not as yet been published. While the Regulation came into force on the 10th of April 2019, it will become fully applicable from the 11th of October 2020. This transitional phase (10th April 2019 until 11th October 2020) will ensure that all legislative and administrative arrangements are put in place at Member States’ level and within the Commission before the Regulation becomes fully operational. Despite the transitional phase allowed by the Regulation, the Office in Malta has already been set up and is vetting applications in respect of transactions occurring from 1st April 2020 onwards.Malta Individual Investor Program (MIIP) – Reform
5th August 2020 The revised program which is set to replace the current Individual Investor Program (hereinafter ‘IIP’) is underway. During a briefing session held on Friday 3rd July 2020 the following proposed changes were discussed:Privacy Rights Trump Artists’ Intellectual Property Rights: A Brief Insight into CJEU and IPR Enforcement of Intellectual Property Right (Regulation) Act in Malta
5th August 2020 Imagine this scenario: an individual decides to upload a copy of a Harry Potter film on YouTube, without acquiring the consent, and without paying any royalties to Warner Bros., which is the production company and owner of the rights of the film. Essentially, by uploading this film onto an online platform such as YouTube, but failing to acquire the consent of Warner Bros., this would constitute an infringement Warner Bros.’ intellectual property rights. Thus, in such a scenario, right holders would request YouTube, as the intermediary between the uploader and the rightsholder, to disclose the contact details of the person who unlawfully uploaded such a film. Following this, the right holder, Warner Bros., would then be able to commence proceedings against the individual who has shared their film online in this way.Identity Malta Agency to Lift Suspension on New Single Work Permit Applications in the Coming Days
5th August 2020 On the 16th of March 2020, as a result of the Coronavirus outbreak, Identity Malta Agency advised that they will not be accepting any new single work permit applications except for highly skilled workers (Key Employee Initiative) and medical professionals.When can an Employer Process Health Data under the GDPR?
5th August 2020 The COVID-19 pandemic has drawn attention to the processing of health data and when such data may be processed, especially in light of the fact that employers are obliged to implement mitigation measures to ensure the safety of employees at the work place. In this article we will analyse some instances where health data may be processed by an employer.Landmark CJEU Data Protection Judgement: EU-US Privacy Shield declared invalid
5th August 2020 On Thursday 16th July 2020, the Grand Chamber of the Court of Justice of the EU (‘CJEU’) delivered a landmark judgement in data protection, declaring the EU-US Privacy Shield Decision that attempts to guarantee the transmission of EU data to the United States, invalid. In the same breath, the CJEU also declared Decision 2010/87 setting Standard Contractual Clauses as valid and effective.The P2B Regulation: New requirements for OISPs and Online Search Engines as of July 2020
5th August 2020 There is no denying that, perhaps now more than ever, online platforms offer incomparable access to cross-border markets. The increasing reliance of businesses on online platforms has led to a shift in the online marketplace, creating new dependencies and imbalances of power. Until recently, although platforms were subject to a myriad of different and piecemeal rules and regulations, the services they provide and activities they carry out had not been regulated in their entirety. This reality was recognised by the European Commission (the ‘Commission’) which identified the need to prioritise fairness in platform-to-business relations. Indeed, the EU Digital Single Market strategy confirmed this was one of the areas to be given priority in its mid-term review back in May 2017.Disclosure of Improper Practice within the Workplace | Employee Protection
27th July 2020 The Protection of the Whistleblower Act (hereinafter ‘Act’) was enacted with the aim of making it possible for employees to safely raise concerns of wrongdoing within their workplace. The Act safeguards those whistleblowers who disclose, in good faith, information on improper practice. Recently, the EU Whistleblowing Directive (hereinafter ‘Directive’) was brought into force on the 16th of December 2019 with an implementation period of two years meaning that Malta must implement the provisions of the Directive into its national legislation by December 2021. The Directive will require the Act’s scope to be significantly widened by obliging all employers who employ 50 or more employees to set up effective internal reporting channels which ensure confidentiality and also requiring national authorities to investigate designated to investigate reports to similarly set up channels enabling confidential reporting. Furthermore, protective measures under the Directive are afforded to third parties as discussed further on within this article as opposed to protective measures being limited solely to the whistleblower under the current Act.Health & Safety Obligations of Employers – How has COVID-19 affected such?
27th July 2020THE EMPLOYER’S LEGAL OBLIGATIONS
The Occupational Health and Safety Authority Act (Chapter 424 of the Laws of Malta) establishes that it is the duty of an employer to ensure the health and safety of all persons who may be affected by the work being carried out for such employer at all times. All measures taken by employers to ensure health and safety, shall be taken on the basis of general principles of prevention which include:Why Should an Employer have Policies in place?
27th July 2020 A policy is a predetermined course of action, established to provide clear guidelines to staff on how the company operates. Along the years, policies have become an essential part of well-structured and professional organisations, as they provide, direction and guidelines for the day to day operations of the company, as well as, ensure compliance with laws, regulations and codes of practice. At the moment, Maltese laws do not oblige companies to incorporate policies as part of their operations. However, it is increasingly becoming a practice which is highly recommended by both lawyers and the Industrial Tribunal (‘Tribunal’).Duties of Directors of a Maltese Company in the case of Over-indebtedness or Illiquidity
27th July 2020 Apart from being responsible for the proper administration and management of the company, Directors of a Maltese company are, amongst other obligations, generally bound to act honestly and in good faith in the best interests of the Company; to promote its well-being and to exercise the degree of care, diligence and skill that may reasonably be expected of a person in such a position.Guidelines 5/2019 published by the EDPB on the Right to be Forgotten
27th July 2020 The European Data Protection Board, or the ‘EDPB’, has issued a set of guidelines (Guidelines 5/2019) regarding the criteria of the right to be forgotten under the General Data Protection Regulation, or ‘GDPR’ (Regulation 2016/679). The right to be forgotten is dealt with in Articles 17 and 19 of the GDPR, together with the right of erasure and the notification obligation provision respectively. Guidelines 5/2019 were adopted very recently, on the 7th of July 2020, with the aim of interpreting the right to be forgotten in terms of processing by search engine providers and delisting requests submitted by data subjects. Essentially, the Guidelines were published following two cases of the Court of Justice of the European Union, (CJEU), namely the cases of ‘Google Spain vs. Costeja Gonzáles’ (Case C-131/12) and ‘Google vs. CNIL’ (Case C-136/17).Uncapped EU Funds available for Hardest Hit Sectors
2nd July 2020 Member State governments may grant financial assistance or other forms of aid to their companies and/or sectors in difficulty so long as this aid is compatible with EU State aid rules namely Articles 107(2) or Article 107(3) of the Treaty on the Functioning of the EU (“TFEU”).Data Protection, Gaming Affiliates, & Direct Marketing – Processor or Controller?
19th June 2020 The role of affiliates in relation to gaming operators’ platforms is to drive individuals to an operator’s site/app with the aim of such individual signing up to become players. The legal position of whether an affiliate is deemed to be a controller or processor in light of data protection law, has been subject to some debate for a while.Malta Individual Investor Programme (MIIP) Has Reached Its Cap
10th June 2020 As most people are aware, when enacted back in 2014 the Malta Individual Investor Programme (hereinafter ‘MIIP’) which grants Citizenship by Investment in Malta, stated that the number of successful main applicants, shall not exceed one thousand and eight hundred (1,800) for the whole duration of the Programme. This week the Malta Individual Investor Programme Agency has advised that this cap is close to being reached.Assignments of Rights Acquired Under a Promise of Sale Agreement Rules 2020
24th May 2020 Legal Notice 191 of 2020, which came into effect from the 1st of January 2020, introduces a final tax on the assignments of rights acquired in terms of a promise of sale agreement.What are the Employer’s Obligations with regards to Employee Representatives?
28th April 2020 The Employee (Information and Consultation) Regulations (S.L 452.96) (the ‘Regulations’) make provision for the right to information and consultation of employees including the election of an employee representative to represent categories of employees which do not fall under a trade union. These Regulations bind employers to ensure that they make the practical arrangements in order to allow employees to be able to effectively exercise their right to information and consultation by setting out the minimum provisions which must be adhered to.New Pension Regulations on Cross-Border Activities and Transfers
28th April 2020 The ‘Retirement Pensions (Cross-Border Activities and Cross-Border Transfers) Regulations (the “Regulations”) came into force on 13th March 2020 by means of Legal Notice 48 of 2020. The Regulations transpose certain provisions of Directive (EU) 2016/2341 (the “Directive”), more commonly referred to as the IORP II Directive. While many of the Directive’s provisions have as their main objective the provision of adequate protection of members and beneficiaries of occupational retirement schemes, the Directive also intends to further facilitate pension schemes by reducing barriers to cross-border activity, with the aim of encouraging cross-border pension provisions.Redundancies under Maltese Law
28th April 2020 When terminating on grounds of redundancy, an employer must always follow the last in, first out rule. Thus, the last person engaged within a class of employees affected by the redundancy should be the first to be made redundant.COVID-19: Teleworking Becomes a Necessity Not Just an Employee Benefit
28th April 2020 Due to the present circumstances, many employers have had to put into action contingency plans with regards to remote working in order to abide by the public health department’s instructions to safeguard the health of their employees.Tips to Ensure Data Security whilst Working from Home
28th April 2020 While technological developments over the last couple of decades have made this transition to remote working a relatively seamless one, it’s important to stay vigilant: working from home can increase risks to employee privacy and company security, making it a growing challenge for employers.Amendments made to the Qualifying Employment in Aviation Rules
28th April 2020 Amendments were made to the Qualifying Employment in Aviation (Personal Tax) Rules (S.L. 123.168) by means of Legal Notice 120 of 2020 (hereinafter ‘Legal Notice’) which was published on the 2nd of April 2020. Such amendments shall be applicable retrospectively as from the 1st of January 2020.Cell Companies for Aviation & Shipping Companies
23rd April 2020 Act V of 2020 (hereinafter referred to as ‘the Act’) was published on 3rd March 2020 and provides a number of amendments to various financial services laws. The most pertinent of these amendments in relation to the shipping and aviation sectors is found in Part V of the Act, which caters for the amendments to the Companies Act, Chapter 386 of the laws of Malta.Yacht Importation Procedures
1st April 2020 When a yacht is imported in the EU for commercial purposes, it must undergo relative VAT and customs procedures in order to subsequently be imported into the EU. On the other hand, for a yacht to be placed in the EU indefinitely it would need to be registered in an EU member state. In that case, a yacht registration in Malta would be a fiscally advantageous alternative. Thus, yachts intended for commercial use may be imported into the EU via Malta for the relevant VAT and customs procedures to be undertaken. This would then allow the yacht to be chartered out and sail freely within EU waters.100 Data Breaches by the UK Home Office
13th March 2020 The UK Home Office was responsible for at least 100 instances of data breaches that violated the country’s data protection laws, according to a report published last month by the Independent Chief Inspector of Borders and Immigration.What are an Employer’s Rights in relation to the Spread of COVID-19?
13th March 2020 The rapidly spreading Coronavirus disease has brought about several queries from both the employer’s and the employee’s point of view, particularly due to the absence of any formal guidance provided in our legislation for these scenarios. Initially, the Ministry for Health had issued guidance advising individuals to self-quarantine as a precautionary measure. This has been updated and at the time of writing individuals returning from Switzerland, Germany, France, Spain, Italy, China, Singapore, Japan, Iran and South Korea are to observe a mandatory quarantine for 14 days.Malta Rent Regulations 2020: The Private Residential Leases Act
25th February 2020High Compensation awarded by the Industrial Tribunal for Unjust Dismissal from Employment
18th February 2020 The Industrial Tribunal recently heard the following four cases simultaneously, (Dr. Jeremy Debono representing the absent Gordon Clark vs Dragonara Gaming Limited, Dr. Jeremy Debono representing the absent Giancarlo Vecchoni vs Dragonara Gaming Limited, Dr. Jeremy Debono representing the absent Andrew Smith vs Dragonara Gaming Limited and Stephen Thornton vs Dragonara Gaming Limited), and awarded abnormally high compensation to the four employees who were made redundant following a transfer of business.Malta Gaming Authority Publishes Guidance Document on the Application of Enforcement Measures
17th February 2020 On the 26th November 2019, the Malta Gaming Authority (‘’MGA’’) published an Explanatory Note setting out the principles which should guide the MGA in its application of enforcement measures when a breach occurs. This Explanatory Note substitutes the Explanatory Note which was issued in May 2016 on the Quantification of Administrative Fines.GVZH Contributes to GDPR Enforcement Tracker
6th February 2020 Together with other European law firms, GVZH’s regulatory team contributed to a GDPR Enforcement Tracker which was launched by Baker McKenzie. This Tracker provides an extensive overview of the EU enforcement measures which have taken place since the introduction of the General Data Protection Regulation (“GDPR) in May 2018. The tool is intended to report the main decisions of the respective national Data Protection Authorities regarding violations of GDPR.Galistair Trading Ltd Granted Air Operator Certificate
28th January 2020 Galistair Trading Ltd has received its Air Operator Certificate (AOC) and Air operator License (AOL), which was granted by the Transport Malta Civil Aviation Directorate. Galistair’s Airbus A321 is now registered as 9H-VDB and will shortly begin new operations with their GTR flight code.GVZH’s newest venture: Ewropa Consultancy Services Limited, approved as a Registered Service Provision
17th January 2020 GVZH’s newest venture: Ewropa Consultancy Services Limited, has just been approved as a registered Service Provider under the Consultancy Services Grant Scheme pursuant to the Expression of Interest for Service Providers issued by the Measures and Support Division.Competition law: Cooperation or Collusion? Time for the EU Commission to Revisit the Horizontal Bloc
10th January 2020 On 6 November 2019, the EU Commission launched a public consultation on the two so-called Horizontal Block Exemption Regulations. This consultation will run until 12 February 2020, so any feedback needs to be submitted to the Commission by midnight of the 12th February 2020.Updates to Maltese Data Protection Law
17th December 2019 The last quarter of 2019 brought a number of changes to our data protection legislation.Malta Gaming Authority publishes Guidance Document on Brexit Impact
13th November 2019 The Malta Gaming Authority (“MGA”) has published a guidance note (“Guidelines”) laying out the impact that the United Kingdom’s (“UK”) exit from the European Union (“EU”) will have on regulatory affairs within the remit of the MGA. These Guidelines apply to entities established in Malta and operating in the UK, with a UK licence but without a Maltese Licence, or entities established in the UK providing services and supplies within Malta.Data Protection Implications of a Bring Your Own Device Policy
18th October 2019BYOD is an acronym for ‘bring your own device’ and refers to a policy which an employer may implement to regulate the use of personal devices for work-related purposes at the workplace. Such a policy would regulate how employees access privileged company information and software on their personal devices, which devices would be connected to the corporate network. An effective BYOD policy is essentially a set of rules which establishes the level of support which an IT department may provide to employee-owned devices used in the workplace, while safeguarding both employers’ and employees’ interests.
Redemption of Government-owned Land held under a Title of Revisable Perpetual Emphyteusis
30th September 2019On 27th August, Legal Notice 216 of 2019 was published, which grants any person who holds a property of the Government or of the Lands Authority, under a title of revisable perpetual emphyteusis, the right to request the Authority to redeem that property at any time.
PSD2 Implemented into Maltese Law: What now?
8th August 2019On the 2nd August 2019, Bill 89 of 2019, entitled “Various Financial Services Laws (Amendment) Act, 2019” was published in the Government Gazette to become Act XXVI of 2019. This law will effectively amend the Banking Act (Chapter 371 of the Laws of Malta) and Financial Institutions Act (Chapter 376 of the Laws of Malta), making several amendments to the text of those principal legislative instruments dealing with various elements introduced by the Second Payment Services Directive, or, as it has come to be more affectionately known, “PSD2”, as a preference to the more formal and somewhat more taxing reference: “Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC.”
Consolidated Group (Income Tax) Rules, 2019
22nd July 2019 On 31 May 2019, Malta published the “Consolidated Group (Income Tax) Rules". The rules will come into force as from year of assessment 2020 and the rules introduce the concept of fiscal units into Maltese tax law.Up for a gig? The risks of worker misclassification in the “gig economy”
8th July 2019Author: Dr. Ann Bubeja
Several “gig economy” business models have sprung up in Malta over the past few years. Cab-hailing services, outsourcing platforms and courier delivery services, to name a few, have adopted the model of engaging with independent contractors for engagements, rather than undertake the orthodox, and admittedly more bureaucratic, route of hiring employees to perform those tasks.
Any undertaking looking to establish operations in Malta should, however, be careful about designing a business model around “independent contractor” arrangements before taking full account of the Maltese law rules governing the correct classification of such workers as employees, regardless of their contractual designation.
In this piece we will consider the critical question: when is a freelancer treated as an employee in terms of Maltese law?
Pharma no longer under the Competition radar
28th June 2019Author: Dr. Gayle Kimberley
The use of competition law to regulate the pharmaceutical industry is beginning to see a new impetus. While traditionally competition authorities struggled to use competition law to address the pharmaceutical sector’s practices, EU legislators have given a clear political signal that something needs to be done to address anti-competitive practices of pharmaceutical companies which, they believe, are endangering patients’ access to affordable and innovative essential medicines.
Termination of Employment for Good and Sufficient Cause
23rd April 2019In the case of Joseph Saliba vs Imperial Hotel (Goldvest Company Limited), the facts of the case revolved around Mr Saliba who was employed in various positions within the Hotel Imperial in Sliema until such hotel was acquired by Goldvest Company.
Immigration Status of British Citizens Resident in Malta
18th April 2019On the 9th of April 2019 the Immigration Status of British Citizens Resident in Malta on the Withdrawal Date of the United Kingdom from the European Union Regulations, 2019 (“Regulations”) were published.
Malta introduces new guidelines for long term leasing, reducing the vat liability of pleasure yachts
26th March 2019On the 28th of February 2019 the Maltese Revenue Department published a new set of guidelines for the long term hiring of yachts and the payment of VAT. These guidelines apply to operational leases which have started on or after the 1st of November 2018. The guidelines have a number of similarities to those that were previously in place in Malta, including the principle of effective use and enjoyment which can be found in Article 59A of the VAT Directive.
The VAT guidelines
The guidelines establish a system whereby Maltese VAT is charged on the portion of the lease which is effectively used and enjoyed within EU territorial waters and a ration of such use will need to be established. The lessor is made responsible for showing and proving the portion of the effective use and enjoyment of the vessel in EU waters, and the burden of proof has been shifted completely onto the Lessor, therefore the lessor must maintain adequate records and documentary evidence, to determine the location of the actual effective use and enjoyment of the yacht. The Lessor must effectively prove that the vessel has been used outside EU territorial water to benefit from the reduction in the percentage of VAT applied.
Malta Gaming Authority launches VFA/DLT Sandbox Environment
14th March 2019The first phase of the Malta Gaming Authority’s (MGA) sandbox environment was launched on 1 January 2019, for the purpose of accepting virtual financial assets (‘VFA’) and virtual tokens as valid consideration for the participation in licensed games. This test environment, which is intended to attract innovative business models, allowing them to develop in a contained regulatory environment, is expected to remain operative for a minimum period of ten months and can be extended at the discretion of the MGA.
Pregnant Employee Dismissed During Probation
8th March 2019Giada Mifsud Calabro has been awarded damages amounting to €10,846 by the Industrial Tribunal after the Tribunal decided in favour of the employee in a case against Union Print Company Limited.
Summary Dismissal of Employees
7th March 2019The Court of Appeal overturned a decision of the Industrial Tribunal given in the names of Marco Pisani vs The AV Warehouse and stated that summary dismissal of an employee must be the exception and not the rule.
IDPC fines Lands Authority for Data Breach
25th February 2019On the 18th of February, the Information and Data Protection Commissioner (“IDPC”) imposed a €5,000 fine on the Lands Authority after having investigated a major data breach in November 2018.
Performance Bonus paid out more than 5 years later
21st February 2019The Court of Appeal in its Inferior Jurisdiction overturned a decision taken by the Court of Magistrates and ordered the payment of a performance bonus owed by the Transport Authority in Malta to one of its employees.
New Directive on Work-Life Balance
7th February 2019A new Directive, known as the Work Life Balance Directive, has been proposed to repeal the existing Framework Agreement on Parental Leave, made binding by Council Directive 2010/18/EU.
MGA Issue The De Minimis Games Directive
6th February 2019The Malta Gaming Authority (the ‘MGA’) has issued a new directive, The De Minimis Games Directive, Directive 3 of 2019 (the “Directive”) which aims to exempt small lotteries and/or raffles from the regulatory regime, which would otherwise be applicable.
Google hit with €50 Million fine over GDPR Violation
24th January 2019On the 25th May 2018, the same day on which the General Data Protection Regulation (“GDPR”) came into effect, complaints were filed against Google by two groups which advocate for privacy rights. The complaints were filed in France with the French data protection authority, the National Commission on Informatics and Liberty (“CNIL”). The complaints alleged that Google did not have a valid legal basis to process user data for the purpose of ad personalization.
Malta Employment Law Updates – January 2019
21st January 2019In August of 2018, four Legal Notices were published making amendments to annual leave entitlement, itemised payslips, transfer of business legislation and temporary agency workers. These legal notices were suspended shortly after publication with further legal notices being published in December of 2018 to amend some of the suspended provisions, and bring into force.
The Intra-Corporate Transfer Regulations
10th December 2018The Conditions of Entry and Residence of Third-Country Nationals in the Framework of an Intra-Corporate Transfer Regulations (“Regulations”) were brought into force through Subsidiary Legislation 217.21. These Regulations transpose EU Directive 2014/66/EU into Maltese law.
The Intra-Corporate Transfer Regulations
10th December 2018The Conditions of Entry and Residence of Third-Country Nationals in the Framework of an Intra-Corporate Transfer Regulations (“Regulations”) were brought into force through Subsidiary Legislation 217.21. These Regulations transpose EU Directive 2014/66/EU into Maltese law.
Protecting Business Interests Following Termination of Employees
5th December 2018In today’s world, one of a businesses’ most valuable asset would be its know-how, client base and trade secrets, all of which are becoming increasingly more difficult to protect with the rate of employment turnover of 2018.
Maltese Court of Appeal: Employee Email Addresses Constitute Personal Data
5th December 2018On the 5th of October 2018, in the case of Doreen Camilleri vs Commissioner for Information and Data Protection, the Court of Appeal reversed a decision previously taken by the Appeals Tribunal for Information and Data Protection and held that an employee’s email address constituted personal data.
Virtual Financial Assets Act and Innovate Technology Arrangements and Services Act coming into force
10th October 2018The Maltese Government has published the long-awaited legal notices establishing the 1st November 2018 as the date on which the Virtual Financial Assets Act (VFAA) and the Innovative Technology Arrangements (ITAS) Act will come into force.
Consultation Paper on the Virtual Financial Assets Rules for VFA Service Providers
10th October 2018On Friday 31st August, the MFSA published a consultation document outlining the Virtual Financial Assets (VFA) Rules for VFA Service Providers, (which include VFA [Crypto]Exchanges). The document is the third and final Chapter of the “Virtual Financial Assets Rulebook”. The scope of the Consultation is to obtain industry feedback in relation to Chapter 3 of the Virtual Financial Assets Rulebook; and the Authority’s interpretation of the transitory provision provided under Article 62(1)(c) of the Virtual Financial Assets Act (VFAA).
Malta Ahead of the Game: Three cryptocurrency and blockchain Bills passed the second reading stage
22nd August 2018During a conference organised by the Malta Institute of Management, Parliamentary Secretary for Financial Services, Digital Economy and Innovation Silvio Schembri, announced that the three crypto-related bills, namely the Malta Digital Innovation Authority Bill, the Innovation Technological Arrangements and Services Bill, and the Virtual Financial Assets Bill will pass through the second reading in Parliament, and in fact yesterday evening the Maltese Parliament finalised the second reading stage. The bills will now move on to the committee stage and then on to the third reading stage. Once the third reading in parliament is concluded the bills will then be presented to the President of Malta for her assent and become law.
Commercial Importation Of Aircrafts
27th July 2018An aircraft whose owner is established in the European Union and is intended for commercial use may be imported through Malta for VAT purposes and thus enabling the aircraft to be in free circulation within the European Union.
This procedure is a full importation procedure and requires the aircraft to be physically present in Malta to undergo the necessary VAT and customs procedures. Most of the paperwork can be processed before the arrival of the aircraft to Malta therefore ensuring minimal turnaround time.
Telecoms & Media in Malta | 2018 GTDT Edition
27th July 2018Communications policy
Regulatory and institutional structure
Summarise the regulatory framework for the communications sector. Do any foreign ownership restrictions apply to communications services?
The regulatory framework for telecommunications in Malta is based on the following primary and secondary legislation:
Lexology 2018 Q&A Report on Data Security & Cybercrime in Malta
27th July 2018Jurisdiction snapshot
Trends and climate
Would you consider your national data protection laws to be ahead or behind of the international curve?
Malta has been proactive in the implementation and development of its national data protection legal framework and is fully compliant with EU standards and best practice. Accordingly, Malta is a member of the EU Article 29 Data Protection Working Party and actively and periodically ensures that all of its policies and best practices are in line with those established by the working party.
A holistic approach to regulating cryptocurrencies and virtual financial assets in Malta
27th July 2018Malta’s Parliament has recently approved three bills surrounding blockchain technology and cryptocurrency. These bills were presented by the government in order to instil legal certainty in the sector as well as to address banks’ concerns in accepting companies working in the industry.
Virtual Currencies & ICOs in Malta – State of Play
27th July 2018It is fair to say that virtual currencies (“VC”) and initial coin offerings (ICOs) have been all the rage in 2017 and, while many of the more well-renowned VCs have lost more than 50% of their value in the first quarter of 2018, this new digital asset phenomenon has not shown any signs of relenting.
The Rights Granted To Minority Shareholders Under The Maltese Companies Act
22nd February 2018“The rights of minority shareholders are an important and rapidly developing branch of law. It raises difficult questions of principle: the conflicts between the letter and the spirit of the company’s constitution; between the sanctity of the bargain between shareholders embodied in the articles and unfair treatment; between giving a remedy which is effective and allowing it to become an institution of abuse; between the attainment of fairness and the amount of money parties can spend on litigation”.[1]
New Incentives for Family Businesses
13th February 2018The Family Business Act (the “Act”), which came into effect on the 1st of January 2017, aims to regulate family businesses and the manner in which they are managed and operated. It also endeavours to ease the process of succession and transfer of the family business. Through the Act, businesses can structure and register themselves as “family businesses”. Once registered, family businesses will be eligible for benefits available under the Act, including assistance or relief given in terms of the Duty and Documents Transfers Act (“DDTA”), Malta Enterprise Act, Business Promotion Act and in terms of any other law as may be prescribed. The legislation includes an initial set of incentives which are immediately available to registered family businesses to assist them throughout their transition process.
The European Commissions’s take on a European Data Economy
13th February 2018MOVING TOWARDS THE CONCEPT OF A EUROPEAN DATA ECONOMY
Digital data is a fundamental resource for economic progress, job creation, citizen empowerment, competitiveness, and business development. The European Union (EU) must guarantee that data flows across borders and sectors. This data should be available and reusable by stakeholders in an efficient manner and supplemented by superior computing capabilities to scrutinise such data. Indeed, the utilisation of intelligent data supports the production of brand-new products and services, the continued development of such production, the growth of the target market, and the strengthening of research and development.
Qualifying Employment in Aviation (Personal Tax) Rules
13th February 2018Legal Notice 378 of 2017 has amended the Qualifying Employment in Aviation (Personal Tax) Rules which were originally promulgated in 2016, and amended by means of Legal Notice 1 of 2017.
Under the Qualifying Employment in Aviation (Personal Tax) Rules, which have come into force specifically under the auspices of the Maltese Income Tax Act, expatriates holding an eligible employment and office under a qualifying contract of employment in the aviation industry in Malta may opt to benefit from a reduced flat rate of tax of 15% on their employment income derived in respect of work or duties carried out in Malta. Eligible employment and office under the Rules include the following:
Award to Employee Following Transfer of Undertaking
13th February 2018The transfer of undertakings takes place when a business or undertaking is taken over by another Company (new employer) from the current Company (old employer). Any employee in employment, with the old employer, shall be deemed to be in employment by the new employer who shall also take on all the rights and obligations which the employee had prior to the transfer of the undertaking.
Lexology Navigator: Secured Lending Trends and Regulatory Climate
13th February 2018TRENDS AND REGULATORY CLIMATE
TRENDS
What is the current state of the lending market in your jurisdiction and have any new trends emerged over the last 12 months?
The lending market in Malta has traditionally been a conservative one. This factor contributed significantly towards the stability of Maltese credit institutions and debt security issuers during and after the 2008 credit crisis.
The Notified AIF – Malta’s Fast Track Fund
15th January 2018The Notified AIF is a new fund regime offered by Malta which allows fund promoters to set up a fund within 10 working days from application to the regulator. The application is a notification submitted to the MFSA and which is spearheaded by the investment manager of the Notified AIF. The latter must be a full-compliant AIFMD manager which will be responsible for effective the monitoring of the NAIF.
Employment and Industiral Relations Law
15th January 2018GVZH Advocates provides an array of employment-related solutions including contracts of service, dismissals, redundancies, transfers of employees between undertakings, equal treatment on the workplace and the implementation of appropriate systems and procedures for clients’ human resources.
Can your IP disclose your ID?
21st July 2017An “IP”, or “internet protocol” is a unique series of numbers allocated to each and every device connected to a network, including and most notable the internet. Similar to your physical home address to which postal articles are addressed and delivered, internet traffic is delivered to your computer’s address i.e. your IP address.
Leave for medically assisted procreation
21st July 2017The recent Legal Notice No. 156 of 2017 (“Leave for Medically Assisted Procreation National Standard Order 2017”) has laid down minimum requirements designed to grant a period of paid leave to employees who undergo the process of medically assisted procreation (hereinafter referred to as the “leave”) whether in Malta or outside Malta.
When Paid Leave and Sick Leave Collide
9th May 2017As stated by the European Court of Justice (“ECJ”), the right of employees to paid annual leave is a “particularly important principle of the European Union social law” which cannot be derogated from the competent local authorities or practices, such as collective agreements, and whose implementation by the said authorities or practices must not fall short of the minimum requirements imposed by European law.
Licence To Skill – An Outline Of Malta’s Regulation Of Skill Games
17th February 2017Gambling, from a legal and policy perspective, has been consistently defined by reference to the constitutive elements of involving a monetary consideration, an element of chance, and a prize having some inherent value. Although definitions can vary significantly from one jurisdiction to another, the general consensus has been that a game or scheme that requires players to stake something of value for a prize that is awarded due to the outcome of an uncertain event should be treated as “gambling.”
Employment Contracts Conducted Electronically
1st February 2017LEGAL BACKGROUND
In this digital age, there is an increased reliance on the internet as a means of conducting business in a more efficient manner. In recent years, businesses have slowly started to move away from traditional methods of conducting business, to a more online based business. This allows for innovation and development in the business sector.
European Commission Proposal Strengthens Privacy Rules for Electronic Communications
23rd January 2017Following a leak in early December, the European Commission has officially published the finalised proposed new legislation which aims to strengthen privacy in electronic communications. The Regulation on Privacy and Electronic Communications (“Proposal”) aims to repeal the ePrivacy Directive. These rules will be updating existing laws and bringing them in line with the new General Data Protection Regulation (“GDPR”), forming part of the Digital Single Market Strategy.
Leaked Eprivacy Draft: What To Expect
3rd January 2017Following the introduction of the General Data Protection Regulation, the European Commission has been working on reforming the E-Privacy Directive. The draft law was leaked on the 13th of December 2016. Although this is not the final version, we now have a clearer idea of what to expect in the coming months. The Privacy and Electronic Communications Regulation is expected to be finalized by January 2017. Since this is no longer a directive but is now a regulation, there is no need for it to be transposed. It will become effective within 6 months as opposed to the normal 2 year period, which means that companies will have a much shorter time period within which to bring themselves in line with the Regulation.
The most important changes found within the draft Regulation are the following:
- Prior consent must be obtained for cookies and any other kind of online tracking techniques (first party analytics are exempted). Nevertheless, when cookies are necessary for technical reasons, there is no need for consent. This means that pop-ups requiring consent for cookies will no longer be necessary.
- Privacy by design – device and software manufacturers must set default settings to block cookies by third parties.
- New opt-in requirement for direct marketing phone calls. However, Member States may choose to allow such calls on an opt out basis instead. There must be a specific marketing prefix number making these calls easily identifiable.
- Direct marketing by electronic communications is only allowed with respect to end users who have given their prior consent.
- Information related to the end user’s device is now protected.
- Publicly available directories must obtain consent from end users (if natural persons) prior to including their personal data in the directory.
- Consent may be withdrawn but only at periodic intervals every six months
- Fines which may be imposed in the case of a breach of the provisions of this Regulation are the following, depending on the offence in question:
- 4% of global revenues or €20 million, whichever is higher; or
- 2% of global revenues or €10 million, whichever is higher, for providers of devices and software who fail in their privacy by default obligations.
Although a revamped privacy regulation is welcome, it is certainly lacking in two important areas: it makes no mention of data retention or encryption. Local Data Protection Authorities will be responsible for the implementation of this Regulation. “OTT” (over the top) services such as Skype, Whatsapp, Facebook and Messenger will be expected to comply, together with traditional telecommunication services providers. The Regulation will have extra territorial effects as even third country websites will be required to conform in order to ensure that website visitors hailing from the European Union will have their rights protected.
Posting of Workers: The New Proposal of EU Commission for Revision of EU Directive 96/71/EC
3rd January 2017As a specific form of temporary labour mobility, posting of workershas been a prominent topic of public and political debate during previous decades. Several factors have contributed to the debate.
Mfsa Issues Discussion Paper On Investment-based Crowdfunding
2nd December 2016With access to finance becoming more difficult for start-ups and small businesses, the evolution of crowdfunding is becoming an emerging alternative funding source for project owners seeking starting capital.
Gapsme: General Accounting Principles For Small And Medium Enterprises
30th November 2016The EU Single Accounting Directive 2013/34/EU, which repealed the 4th and 7th Accounting Directives on Individual and Consolidated Accounts, introduced a simplified procedure for financial statement reporting. This Directive was transposed into Maltese law via legal notice 289 of 2015 in virtue of the ministerial powers conferred on the Minister of Finance in virtue of the Accountancy Professions Act (Chap. 281 of the Laws of Malta).
Fraud And Investigations At The Workplace
16th November 2016
Monitoring of employees at the workplace is not specifically regulated by Maltese Law. In this respect, one must refer to the Data Protection Act (Chapter 440 of the Laws of Malta), the European Directive 95/46/EC on processing of personal data and free movement of such data, as well as relevant rulings of the European Court of Justice (“ECJ”) and the European Court of Human Rights (“ECHR”), and best common practices.
A principle common to all Member States is that when it comes to working life, employers must strike a balance between monitoring employees and employees’ right to a private and family life. In fact, on the one hand, employers have an expectation to safeguard themselves against “wrongdoing” at the place of work, and on the other hand employees have an expectation of privacy.
Therefore, as a matter of principle, monitoring of employees at the place of work must be reasonable, not excessive and not disproportionate.
Legal Briefings
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Good governance in the Maltese corporate sector
The importance of companies adopting proper corporate governance practices has grown significantly over the last decade in Malta. In general, effective corporate governance practices are said to provide proper incentives for the board and management to pursue objectives that are in the interests of a company and its shareholders. Corporate governance principles are therefore intended …