Conflicting Rights and Freedoms within the European Union?

‘The Parliament of Malta has approved the passage of Bill.55, that will allow Maltese courts to refuse the recognition and enforcement of foreign judgements related to the online gambling sector.

The Bill has now been approved by the Maltese President and as such its provisions have been written into the country’s existing Gambling Act, which legislates and regulates the market.

Specifically, the Act prevents enforcement actions against Malta Gambling Authority (MGA) licensed operators under two sets of circumstances. Firstly, if an action conflicts with or undermines the provision of gaming services in Malta, it cannot be undertaken.

Additionally, enforcement measures cannot be taken if the action made by the operator relates to an authorised activity lawful under the Maltese Gambling Act. 

This effectively means that Maltese courts will refuse recognition and enforcement actions in Malta by foreign betting and gaming regulators.

The significance of this lies in the fact that Malta is home to a huge range of both B2C and B2B firms which are active in various European betting and gaming markets, as well as others further afield.

Bill 55 has been deemed controversial by legal observers, with many seeing it as a direct response to legal actions taken by authorities in Austria and Germany against Malta-licensed online gaming companies – which are accused of illegally offering their online gambling services to citizens. 

Standing its ground, Malta cites that its MGA licence allows for domiciled business to offer services throughout the EU due to the principle of free movement of goods and services – irrespective of EU member states specific laws on gambling.

Austrian courts had previously submitted liability orders to Maltese courts in relation to penalties related to 888 Holdings infringing on Casinos Austria’s monopoly rights.

Freedom to provide services is one of the central principles of the EU. The MGA argues that this includes cross-border provision of betting and gaming products, but the patchwork of regulations across different EU member states complicates this.

European regulators have written to the EU Commission, to contest that Bill 55 undermines the EU’s Brussels I Recast Regulation and the European Rule of Law. The EC has been intervening as the approval of Bill 55 could create a legal loophole, allowing unlicensed operators to continue offering services in violation of national laws.’*

The last word will not have been written yet. We will keep you informed.

In the meantime, and to avoid any misunderstanding, one has to realize that Bill 55 does not exclude other types of claims or enforcement of judgments that are not based on any alleged interference of the freedom of services in other (EU) countries by Maltese companies. Claims based on i.e. non-fulfillment of contractual obligations do not fall within the scope of Bill55.

*Source: sbcnews.co.uk

Hot news on State Aid for airlines

Today, Budget airline Ryanair, as well as charter company Condor, won an EU court case, which annulled the European Commission's decision to approve German state aid given to Lufthansa Group.

RyanAir succesfully contested against billions of euros in state aid granted to its rivals to support them through the coronavirus crisis.

As RyanAir said in a statement: "If Europe is to emerge from this crisis with a functioning single market, the European Commission must stand up to national governments and stop rubberstamping discriminatory state aid to inefficient national airlines,"

Although the European Commission has a margin of discretion with regard to economic matters, that does not mean that they must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must they establish, in particular, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. It is in the light of those considerations that the applicants’ arguments concerning various aspects of the commitments at issue must be examined.

In this specific case, it follows from all the considerations by the General Court, that the contested decision is vitiated by several errors or irregularities. As a consequence, the contested decision of the European Commission, as rectified by the correcting decision, regarding State Aid to Lufthansa, is annulled.

Read the press release of the judgment:

press release

About EAPO bank seizures and penalty payments

The EAPO Regulation:

The European Account Preservation Order (EAPO) lets a court in one EU country freeze funds in the bank account of a debtor in another EU country. The procedure may be used in cross-border cases only, whereby the court carrying out the procedure or the country of domicile of the creditor must be in a different Member State than the one in which the debtor's account is maintained.

It makes international debt recovery of claims that are recognized by the court, within the EU, easier since the regulation is applicable within all EU countries except Denmark.

The procedure for getting an EAPO is set out in Regulation (EU) No 655/2014.

It’s an alternative to existing legal procedures in each EU country. The procedure is quick and happens without informing the debtor (ex parte). This ‘surprise effect’ stops debtors moving, hiding or spending the money and frustrating payment to the creditor.

Penalty Payments imposed by court order

Sometimes, the court orders a penalty in case the debtor does not fulfil the obligations mentioned in a judgement, such as an order to cease certain acts detrimental to the plaintiff. Could these penalty payments be regarded as a claim for which the European bank seizure can be requested?

This was a question from the Belgian Court, to the EU Court of Justice.             

In case number C-291/21 (Starkinvest SRL),  AG M. Szpunar at the EU Court of Justice concluded in his advice dated 20 October 2022 that penalty payments are (in general) not claims that are specified enough to justify a bank repossession without further investigation by the court.

After all, according to the EAPO Regulation, the claim needs to be a determinable debt. A penalty is usually an amount per violation, or per day that the sentence, the do-or-not, is not complied with. The latter implicates that the penalty will change according to the term that the convicted person does not comply with the sentence. Moreover, the various countries have different procedures of determining the sums owed: some countries allow the bailiff to determine the penalty payments due, but in others the court has to be involved.

Therefore, the claimant cannot be released from the obligation to substantiate his claim with regard to the penalty payment separately from the main case, and he has to convince the court of the ‘fumus boni juris’, the likelihood of success on the merit of this part of the case!

The full advice is available as ECLI:EU:C:2022:819 and published: CURIA - Documents (europa.eu)

For more information, don’t hesitate to contact us.

Pay roll Actualities 2023 in Malta

Cost of Living Adjustment (COLA)
Full-timers: €9.90 per week
Part-timers: €0.25 per hr*

Minimum Wage
18 yrs and over: €192.73 per week (€4.82 per hr* for part-timers)
17 yrs: €185.95 per week (€4.65 per hr* for part-timers)
Under 17 yrs: €183.11 per week (€4.58 per hr* for part-timers)

In addition to COLA, the weekly wage must be revised to reach €3 per week above minimum wage after the first year of employment and €6 per week above minimum wage after the second year.

Public Holidays
JAN: Sunday 1,                         JUN: Wednesday 7, Thursday 29
FEB: Friday 10                         AUG: Tuesday 15
MAR: Sunday 19, Friday 31       SEP: Friday 8, Thursday 21
APR: Friday 7                           DEC: Friday 8, Wednesday 13, Monday 25
MAY: Monday 1st                         

Public Holidays falling on a weekend
2023: 2 days 2025: 4 days
2024: 6 days 2026: 3 days
For every Public Holiday falling on a weekend, 8 hrs of additional Vacation Leave are due to full-timers.

Vacation Leave
2023: 192 hrs + 16 hrs = 208 hrs (26 days) 2025: 192 hrs + 32 hrs = 224 hrs (28 days)
2024: 192 hrs + 48 hrs = 240 hrs (30 days) 2026: 192 hrs + 24 hrs = 216 hrs (27 days)
A maximum of 12 days (96 hrs*) from annual leave entitlement may be utilised for Shutdowns and Bridge Holidays.

Part-timers are entitled to vacation leave pro-rata the average hours worked in the previous quarter (13 weeks: January-March; April-June; July-September; October-December).

Tax Rates
Part-time employment where it is not the main employment: 10% on the first €10,000
Part-time self-employment where it is not the main employment: 10% on the first €12,000
Overtime: 15% on the first €10,000 provided annual basic wage is under €20,000

Full-time employment and all other employment income is taxed according to applicable tax rates:

- Single Tax Rates apply to single persons and married persons whose spouse is in employment and who do not have dependent children (under 18 or under 23 years and full-time students);

- Parent Tax Rates apply to married persons whose spouse is in employment and who have dependent children;

- Married Tax Rates apply to married persons whose spouse is unemployed or single parents who have dependent children

* Based on a standard 40-hr week. Wage Regulation Order may specify different standard working week for certain sectors

National Insurance Contributions apply, made available on request

Retirement Age
Born 1962 or later: 65 years
Born 1959-1961: 64 years

Persons who attain the age of 61 years may choose to retire earlier on a lower pension if they have the required number of fully paid NI Contributions:
- Born before 1961: 35 years (1820 contributions)
- Born between 1962 and 1968: 40 years (2080 contributions)
- Born 1969 onwards: 41 years (2132 contributions)

Source: The Malta Chamber of Commerce, Enterprise and Industry, January 2023

This article is written by Dr Susanne Kortekaas, DBLA member in Luxemburg