Malta Legal Articles
Law related articles writen by lawyers
and experts witnesses practicing in Malta
February 8, 2017 By GVZH Advocates
Gambling, 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.
January 27, 2017 By GVZH Advocates
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.
January 20, 2017 By GVZH Advocates
Following 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.
Following the introduction of the General Data Protection Regulation, the European Commission has been working on reforming the E-Privacy Directive.
The EU Single Accounting Directive 2013/34/EU, which repealed the 4th and 7th Accounting Directives on Individual and Consolidated Accounts, introduced a simplified procedure for financial statement reporting.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).
With 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.
LEGISLATIVE FRAMEWORK 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.
On the 4th November 2016, the MFSA issued a consultation document on amendments being proposed to the Investor Compensation Scheme Regulations S.L 370.09 (‘‘Regulations’’), a subsidiary legislation issued under the Investment Services Act Chapter 370 of the Laws of Malta.
Ahead of the deadline for the member states to transpose MIFID II into national legislation which is now set for 3 July 2017 deadline for the Markets in Financial Instruments Directive II (“MiFID II”), the European Securities and Markets Authority (“ESMA”) published a Questions and Answers document (Q&As) with the aim of promoting common supervisory approaches and practices in the application of MiFID by providing guidance with respect to the following investor protection topics:
The European Court of Justice has recently ruled that an employee has the right to be paid an allowance in lieu of any days of paid annual leave which are left outstanding upon termination of employment.
The daily fantasy sports (‘DFS’) industry has been a hot topic of debate in the United States market.
During the State of the Union 2016, the European Commission proposed the introduction of new and up to date EU copyright rules.
The daily fantasy sports (‘DFS’) industry has been a hot topic of debate in the United States market.
Until very recently the Swiss asset management industry relied exclusively on self-regulation and was allowed to operate and develop somewhat independently from European regulation.
Cyber security is a prominent issue on the EU’s digital agenda. Many governments and companies are vulnerable to cyber security threats. For this reason, there has recently been a push for a directive which would harmonize member state rules on cyber security.
As emphasised by the International Labour Organizations (ILO), seafarers are frequently exposed to difficult working conditions and particular occupational risks. In fact, since working far from home, they may be vulnerable to exploitation and abuse, non-payment of wages, non-compliance with employment agreements, exposure to poor diet and living conditions.
The Maltese Government has recently requested the Attorney General to consult the social partners within the Malta Council for Economic and Social Development (MCESD), and prepare legal amendments aimed at strengthening the guarantees of independence and impartiality of the Industrial Tribunal.
On Monday, the 8th of January 2016, the French data protection authority, Commission Nationale de l’Informatique et des Libertes (CNIL), issued a formal notice to Facebook for it to comply with the French Data Protection Act. This follows a decision issued by the CNIL on the 26th January 2016, which gave Facebook 3 months within which to fall in line with all the necessary requirements.
Under Maltese law, all sorts of vessels can be registered under the Malta flag, hence the type of vessel which may be considered for registration can vary and amongst others may include yachts, oil rigs, and also vessels under construction.
As a matter of rule, individuals who are not citizens of an EU Member State (also known as Third Country Nationals-TCNs) must be in possession of an employment licence (also known as work permit), in order to both legally reside and work in Malta.
MFSA Conducts a Thematic Review on Compliance with the Requirements on Corporate Governance in Malta
In 2015, the MFSA conducted a Thematic Review Questionnaire amongst 60 authorised trust companies (‘authorised persons’), which represent approximately half of the licence holders authorised in terms of the Trusts and Trustees Act. The Questionnaire focused on the governance structure of authorised trustees and other fiduciaries to verify the extent to which selected companies have proper governance structures in place.
The EU Commission has recently announced that to date Belgium has failed to transpose the Single Permit Directive (Directive 2011/98/EU) into its national law. Hence, the EU Commission referred Belgium to the EU Court of Justice in order to address the lack of progress in transposing this Directive.
MFSA on Governance, Compliance & Risk Management Regarding Investment Services Licence Holders in Malta
On the 22nd December 2015, the MFSA issued a letter to the Compliance Officers of Investment Services Licence Holders to inform them of the shortcomings the MFSA identified during focused reviews which it carried out on investment services providers licenced in Malta (“Licence Holders”).
On the 11th December 2015 the European Bank Authority (“EBA”) launched a consultation on its draft technical standards on the framework for cooperation and exchange of information between competent authorities for passporting under Payment Services Directive II (“PSD II”).
As 2015 comes to a close, the e-commerce industry is expected to make €185.39 billion this year. In the EU, the average online shopper spends €970 yearly, and these numbers continue to grow annually. EU Directive 2011/83/EU details the rights of EU consumers when shopping online and was transposed into Maltese law through Legal Notice 439 of 2013.
Recently a case was brought before the Industrial Tribunal by an aggrieved employee who had his employment terminated after being in employment for six years pursuant to an indefinite contract with Maltco Lotteries Limited.
Ever since the horror that was the Second World War, Europe has reorganized itself into a democratic union of states, which has proved to be economically beneficial for all involved. However, the aim of the European institutions is not only economic advancement, but also political representation and civil rights. Here the aim is to differentiate between the various courts and institutions found in Europe, which can be quite a conundrum.
One may question whether athletes would be able to claim copyright on their performance. It is well known that artists are able to do so and in fact do claim copyright on their work, such as song writing.
In a vote that took place on the 27th of October, the European Parliament has rejected a number of legal amendments to the proposed net neutrality bill. Net neutrality is the principle that every point on the web can connect to any other point on the web, regardless of the origin, destination or type of data. This allows for a free flow of information, innovation and competition. Users can exercise their right to receive and impart information, and their right to expression, online.
Securitisation transactions in Malta, that is the raising of capital through the transfer of assets and risk from the transferee (“Originator”) to special purpose vehicles (“SPVs”) and converting the same into financial instruments issued by the latter, are regulated by the Securitisation Act (Chapter 484 of the Laws of Malta) (“Act”).
The Data Retention Directive was enacted as a reaction to the 2004 and 2005 terrorist attacks in Europe in order to harmonize the investigation and prosecution mechanisms throughout the EU, especially with regards to organized crime and terrorism.
The employment of persons with disabilities is currently regulated by the “Persons with Disability Employment Act” (Chapter 210 of the Laws of Malta), and at the same time the Employment and Training Corporation (ETC) has set up and to date maintains a Register of Persons with Disability.
The latest in Nestlé’s attempt to trademark its iconic four-finger chocolate is at odds with EU law.
Software patents have been the subject of much debate – not only in the US, but also in Europe. This has been a thorny issue for many years and the future of software patents still remains unknown. At the outset, a breakdown of the differences between patents and copyrights will highlight why the patent is the form of intellectual property which is proving to be the most problematic with regards to software.
Employment and Training Corporation (ETC) has recently published new guidelines on employment licenses (also known as the work permits) issued with respect to Third Country Nationals who wish to reside and work in Malta.
Drones, which are also known as Remotely Piloted Aircraft Systems or Unmanned Aircrafts have recently gained popularity across Europe and internationally.
A report published by the Office for Harmonization in the Internal Market – ‘Intellectual property rights and firm performance in Europe: an economic analysis’ – sheds light on the link between companies with intellectual property rights and a superior economic position.
On the 23rd of December 2014 the European Securities and Markets Authority ("ESMA") published a discussion paper on share classes of UCITS Funds with a view to developing a common understanding of what constitutes a share class of a UCITS Fund.
Trading in binary options is considered to be a high risk practice and therefore the MFSA has issued a circular setting out additional conditions in this regard which complement those conditions set out for Investment Services Providers within the Investment Services Rules.
Annualisation of hours is a term used to describe a contract which states the agreed number of guaranteed hours the employee is contracted to work through a twelve month period. Annualisation schemes are implicitly promoted both by EU Legislation on working time and by EU policies and recommendations, which – among others – allow EU Member Countries to adopt flexible working time schedules.
Before the introduction of the Registration and Licensing of Motor Vehicles (Amendment) Regulations, published on the 5th of June 2015, if an individual bought a car abroad and imported the car into Malta the law did not authorise the individual to use the car on the Maltese roads until the registration process was completed and until the Maltese number plates would have been obtained.
The Belgian Commission for Privacy Protection (CPP) is claiming that Facebook is monitoring the web movements of both users and non-users through plug-ins and cookies and gathering information about their browsing habits.
Last year, European citizens were granted the right to submit a request to Google for the delisting of personal information deemed to be harmful, out of date or irrelevant, through a ruling issued by the European Court of Justice. This means that the information would no longer come up in search results following searches carried out on European websites.
European Parliament Approves ‘International Standards of Combatting Money Laundering and the Financing of Terrorism and Proliferation’
On the 20th of May 2015, two years after the European Commission first proposed the 4th AML Directive, the European Parliament approved the final text of the 4th AML Directive intended to address the threat of money laundering in 2015 and beyond.
In terms of the the MFSA Rules for Company Service Providers (“CSPs”), CSPs are required to submit a Certificate of Compliance and an Annual Financial Return.
On the 13th May 2015, the MFSA issued a Circular addressed to Fund Managers on the inclusion of Retained Earnings as part of the Own Funds’ Computation.
Creating a Digital Single Market is one of the ten priorities of the EU President-elect Jean-Claude Juncker.
The Authority for Transport in Malta has advised that following consultation with all the stakeholders involved, the Commercial Yacht Code 2010 has been revised.
The Malta Financial Services Authority (the “MFSA”) is currently in the process of setting up a Conduct Supervisory Unit. This is being done for the purposes of implementing the regulatory framework and securing adequate client protection in the industry through a supervisory regime aiming to address potential or emerging risks for clients in the financial services industry. The aim is also to strengthen the fair treatment of customers by regulated entities.
According to the EU Legislation, a posted worker is a person who, on behalf of the employer, is sent for a limited period of time to carry out his/her work in the territory of an EU Member State (i.e.: “host” State) other than the State in which s/he normally works (i.e.: “posting” State).