ACT No. XII of 2004 An Act to make provision for the imposition of an eco-

I assent.

E DWARD F ENECH A DAMI

(L.S.)

President

13th August, 2004

ACT No. XII of 2004

An Act to make provision for the imposition of an eco-

contribution on products which result in waste and to provide for

matters ancillary or incidental thereto

BE IT ENACTED by the President, by and with the advice

and consent of the House of Representatives, in this present

Parliament assembled, and by the authority of the same, as follows:-

Part I Preliminary

(1)

This Act may be cited as the Eco-Contribution Act

2004. (2) This Act shall come into force on such date as the

Minister, in concurrence with the Minister responsible for finance,

may by notice in the Gazette appoint and different dates may be so

appointed for different provisions or different purposes of this Act.

Eco-Contribution Tariff

General Notes and Rules for Interpretation

(1) The nomenclature of the Tariff is based on the nomenclature for the

classification of goods in the Harmonized Commodity Description and Coding

System 1983 (hereinafter referred to as the Harmonized System) and shall be

interpreted in accordance with the Explanatory Notes to the Harmonized System,

published by the Customs Co-Operation Council, Brussels.

(2) Except where the applicable unit of measurement is specified in litres,

the rates indicated under Eco-Contribution in this schedule apply for each unit of

the specified product.

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In this Act, unless the context otherwise requires -

“Competent Authority” means the authority designated by

the Minister under Article 10 of this Act;

“eco-contribution” or “contribution” means the

contribution chargeable under Article 3 of this Act;

“the Minister” means the Minister responsible for waste

management and includes, to the extent of the authority given,

any person authorised in that behalf for any purpose of this

Act;

“placed on the market” means when a product is transferred

from the manufacturing stage with the intention of distribution

on the market in Malta, or when a product is brought into Malta

with the intention of distribution on the market;

“producer” means a person who, for the purpose of trade

or otherwise in the course of business, manufactures or brings

into Malta products on which the eco-contribution shall be

payable in terms of this Act;

“products” means products which result in waste and on

which an eco-contribution is chargeable;

“recovery of waste” means the re-use, recycling or

reclamation of waste or any other process aiming to extract

secondary raw materials or energy from such waste;

“Schedule” means a schedule to this Act;

“waste” means any thing, substance, product or object, in

whatever form, whether hazardous or otherwise, which is

discarded or intended to be discarded or is required to be kept

in order to be discarded and includes such other thing, substance

or object as the Minister may prescribe.

Part II Imposition of eco-contribution

(Article 9)

Registration and Reporting Procedure

Registration

1. (1) Every producer must apply to the Competent Authority on the

prescribed registration form or on such other form approved by the Competent

Authority, within thirty days of entry into force of the Act or within thirty days

from the date on which a person becomes a producer in terms of the Act, whichever

is the later.

(2) On registration, the producer must inform the Competent Authority

of his opening stock of products as at the date of registration.

(3)

On registration, a registration number shall be assigned to the

producer.

(4)

Where any person>

(a) applies to be registered pursuant to subarticle (1) of this article, and

the Authority is satisfied that that person is liable to be registered under the

Act, that person shall be a registered person for the purposes of the Act with

effect from such date as the Authority may determine;

(b) has not made an application for registration pursuant to subarticle

(1) of this article, and the Authority is satisfied that that person is liable to be

so registered, that person shall be a registered person for the purposes of the

Act with effect from the date on which that person first became liable to be

registered. In such an event, the producer’s opening stock of products as at

the date when he first became liable to be registered shall be determined by

the Authority.

(5) An application for registration purporting to be made by or on behalf

of any person shall for all purposes be deemed to have been made by that person or

by that person’s authority, as the case may be, unless the contrary is proved.

(6) Any person who ceases to be liable to be registered may request the

Authority in writing to cancel that registration, and if the Authority is at any time

satisfied, whether upon such request or otherwise, that that person is no longer

liable to pay an eco-contribution, the Authority shall cancel that person’s registration

with effect from the last day of the quarter during which such person ceased to be

liable to be registered, or from such other date as may be determined by the

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Authority, and shall notify that person of the date on which the cancellation of

registration takes effect.

(7) The obligations and liabilities under the Act of any person in respect

of anything done, or omitted to be done, by that person while that person was a

registered person shall not be affected by the fact that that person ceases to be a

registered person.

Returns

2. (1) A producer shall submit to the Competent Authority returns, on a

quarterly basis, containing data

(i) on the volume of products placed on the market during the

relative quarter; and

(ii)

on the eco-contribution payable thereon; and

(iii) such other information as may be required by the Competent

Authority in such format as shall be established by the Authority

Provided that producers shall be bound to submit the first return after the

lapse of three months from entry into force of the Act.

(2) Without prejudice to its other powers under the Act if for any

purpose, the Authority requires any information or additional information or the

submission of a return from any person who has not made a return or a complete

return, it may, in writing, demand from such person such information, additional

information or return as may be indicated in the notice.

Records and statements

3. Without prejudice to the foregoing, a producer, shall be required to

(a) maintain, for all products of which he is or is deemed to be a

producer, accurate accounts and records of stock and product movements;

(b) comply with all requests to monitor, check and produce for

inspection any accounts, records and any stocks of products; and

(c) ensure compliance with all requirements of the Act and any

regulations made thereunder and with such other requests made by the

Competent Authority.

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Provision of information

4. (1) Without prejudice to the enforcement powers that it has at law, the

Authority may require any person to provide it with any additional information,

including financial information, that the Authority considers necessary for the

purpose of ensuring compliance with the provisions of, or decisions made in

accordance with this Act and regulations thereunder.

Any information required by the Authority under subarticle (1) of this article

shall be proportionate to the performance of its functions and obligations under

this Act and in requiring any information as aforesaid, the Authority shall state

why it requires the information requested.

(3) A person who is notified with a requirement under subarticle (1) of

this article shall comply promptly with the requirement within the timescales and

according to any level of detail as may be required by the Authority>

Provided that any such person shall, in complying with the provisions of this

subarticle, state clearly to the Authority if any information provided by him is to

be considered as confidential. In doing so he shall give his reasons to the Authority.

It shall be the Authority which shall decide whether the information indicated to it

as being confidential should be so treated.

(4) Any person who fails or refuses to comply with a requirement under

subarticle (1) of this article shall commit an infringement of this Act and shall be

liable to the imposition of an administrative penalty by the Authority not exceeding

the sum of five hundred liri or fifty liri for each day during which failure to comply

persists.

Passed by the House of Representatives at Sitting No. 163 of the 27th July,

2004. A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Clerk to the House of Representatives

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press

(1) There shall be charged and levied by the Competent Imposition of eco-

contribution.

Authority, on account of the Government, an eco-contribution at the

rates shown in the Third Column of the First Schedule payable on

products described in the First and Second Columns of the said

Schedule, which are placed on the market.

(2) The First Schedule shall be published in the English

language only>

Provided that the Minister may, from time to time, order

the publication of the said First Schedule in the Maltese language

and in any such case, if there is any conflict between the Maltese

and English texts of the said First Schedule, the English text shall

prevail.

(1) The eco-contribution shall be due at the time at which

the products are placed on the market

Provided that where products are placed under a customs

procedure on entry into Malta, placing on the market shall be deemed

to take place when they leave the customs procedure.

(2) The conditions on which the contribution shall be

chargeable and the rate of the contributions to be adopted shall be

those in force on the date on which the products are placed on the

market.

Recovery of waste.

In cases of recovery of waste from products on which eco-

contribution is paid in terms of this Act, the producers of those

products may, in accordance with regulations made under articles

12 and 13, be granted a credit of the contribution paid thereon, or

part thereof, against eco-contributions which may fall due in future.

The contribution due in terms of this Act shall be without

prejudice to any other obligations, of whatever nature, imposed by

or under any other law in respect of the products on which the

contribution shall fall due.

Part III Payment of eco-contribution

(1) The liability for the payment of the eco-contribution

shall lie with the producer.

(2) Where two or more persons are liable for the payment

of the contribution, their liability under the Act shall be joint and

several.

The eco-contribution shall be payable on a quarterly basis

in arrears on submission of the return relative to the preceding

quarter

Provided that the Minister may by regulations prescribe in

respect of such class or classes of producers as may be specified in

those regulations, a period of time longer or shorter than a quarter

for the payment in arrears of the eco-contribution and for the

submission of the relative return.

The registration and reporting procedure to be adhered to

by all producers liable to the payment of an eco-contribution is laid

down in the Second Schedule to this Act.

Part IV The Competent Authority

(1) The Minister shall by order in the Gazette designate Nomination of

competent

a person or body to be the Competent Authority for the purposes of authority.

this Act to carry out the functions laid down in the Act and in the

regulations made by the Minister under the Act and such other

functions as the Minister may consider appropriate in relation to

the operation of the Act. Such person or body shall be designated

for an indefinite period

Provided that the Minister shall have the power at any time to

terminate such nomination by order in the Gazette

Provided further that the Minister may in the regulations provide

that a person or authority other than the competent authority shall

be responsible for the performance of certain functions specified in

the regulations.

Save where otherwise provided in any regulations made Functions of the

competent

under this Act, the Competent Authority shall be responsible for the authority.

administration of this Act and for any regulations made thereunder.

The Competent Authority shall also have the function of advising

the Minister on the following matters

(a) the products on which an eco-contribution should be

charged and the applicable rate of contribution;

(b)

the issue of any regulations under this Act; and

(c) any matter as may be necessary for the better carrying

out of the provisions of this Act or of any regulations made

thereunder.

Part V Powers of the Minister

(1) The Minister may, with the concurrence of the Power to exempt

payment of eco-

Minister responsible for finance and in accordance with regulations contribution.

made under the provisions of article 13

(a) exempt any producer from the payment of the eco-

contribution, in whole or in part, which would otherwise have

been payable on products produced by him, or

(b) grant any producer a credit of the contribution paid

on such products, in whole or in part, against eco-contributions

which may fall due in future,

if the producer provides or participates in a scheme, approved as

provided in the regulations, for the recovery of waste from those

products.

(2) The Minister, shall, by not later than the second week

of each month publish in the Gazette a list of the exemptions which

may have been allowed in terms of subarticle (1) of this article.

(1) The Minister, with the concurrence of the Minister

of finance, may make regulations for the better carrying out of the

provisions of this Act, and without prejudice to the generality of the

foregoing, such regulations may provide for any of the following

(a) the time or times within which, the place where, and

the manner in which, the contribution due under this Act is to

be paid;

(b) the circumstances under which products not fit for

consumption or which are unmarketable are destroyed with or

without payment of the eco-contribution, or with or without a

refund of the contribution paid;

(c) amend or revoke, in whole or in part, any Schedule

issued under this Act;

(d) to provide for any powers which may be required in

order to enforce the provisions of this Act and the regulations

thereunder;

(e) the giving of a guarantee or other form of security by

producers in order to ensure the payment of the eco-contribution

due in terms of this Act, and the manner in which such guarantee

or other security may be enforced;

(f) for the procedure for producers to be exempted from

the payment of the eco-contribution as provided in article 12;

(g) providing for schemes which encourage persons other

than producers to undertake the recovery of waste from products

in agreement with producers; and

(h) anything that may be prescribed in accordance with

the provisions of this Act.

Part VI Enforcement and Sanctions

(1) The Authority may impose an administrative penalty Administrative

infringements

upon any person who

(a) infringes any provision of this Act or of regulations

made thereunder;

(b) fails to comply with any request or decision given by

the Authority under this Act or the regulations made thereunder

Provided that in all cases where the Authority imposes an

administrative penalty in respect of anything done or omitted to be

done by any person and such act or omission constitutes a criminal

offence, no proceedings may be taken or continued against the said

person in respect of such criminal offence.

(2) An administrative penalty imposed under subarticle

(1) of this article shall not, unless provided otherwise by or under

this Act exceed five thousand liri for each infringement or failure to

comply and one hundred liri for each day of infringement or non-

compliance, as the case may be.

(3) In determining the amount of an administrative

penalty, regard shall be had, in particular, to the nature and extent

of the infringement and its duration.

(4) The Minister may, by regulations made under this

Act establish administrative penalties that may be imposed by the

Authority for breaches of the said regulations>

Provided that the amount of the penalties that may be so

prescribed shall not exceed the maximum amounts prescribed under

subarticle (2) of this article.

(5) Notwithstanding the provisions of any law, no

precautionary warrant or order shall be issued by any court restraining

the Authority from the exercise of any of the powers conferred upon

it by or under this article.

Where an administrative infringement of any provision Administrative

infringements by

of this Act is committed by a body corporate and is proved to have bodies corporate.

been committed with the consent or involvement of or to be

attributable to any gross negligence on the part of a person being a

director, manager, secretary or other officer however so described

of the body corporate or a person who was purporting to act in any

such capacity, both that person and the body corporate shall be liable

for the said infringement.

(1) Any person who contravenes or fails to comply with

any of the provisions of this Act or of regulations made thereunder

shall be guilty of an offence, and shall be liable, on conviction, to a

fine (multa) not exceeding ten thousand liri or an amount equal to

three times the amount of the eco-contribution payable on the

products in respect of which the offence is committed, whichever

shall be higher.

(2) Article 21 of the Criminal Code and the provisions

of the Probation Act shall not apply to any conviction under this

Act.

The prosecution of a criminal offence or the initiation of

proceedings to impose an administrative penalty under this Act shall

be prescribed by the lapse of five years from the date on which the

offence or administrative infringement is committed.

(1) Any person subject to an administrative penalty shall

be notified in writing of the amount of the penalty due and of the

nature of the infringement.

(2) The notice referred to in subarticle (1) of this article

shall, without prejudice to the right of appeal under article 20 of this

Act, upon the service of a copy thereof by judicial act on the person

indicated in the notice, constitute an executive title for all effects

and for the purposes of Title VII of Part I of Book Second of the

Code of Organization and Civil Procedure.

(3) Notwithstanding the provisions of subarticle (2) of

article 256 of the Code of Organization and Civil Procedure, the

executive title referred to in subarticle (2) of this article shall not be

enforceable before the lapse of thirty days from the service of the

judicial act therein referred to>

Provided that where an appeal against an administrative

penalty in accordance with article 20 of this Act has been filed, the

provisions of article 20 shall apply.

Notwithstanding the provisions of articles 14 and 15 of

this Act, no administrative penalty shall be imposed by the Authority

for any default if that person shows to the satisfaction of the Authority

that there is a reasonable excuse for the default

Provided that

(a)

an insufficiency of funds to pay an eco-contribution

due; or

(b) when reliance is placed on any other person to

perform any task, the fact of that reliance or any dilatoriness or

inaccuracies on the part of the person relied upon,

shall not constitute a reasonable excuse for the purposes of this

article.

(1) The procedure to be followed in relation to appeals Appeals from

against administrative penalties imposed by the Authority shall be administrative

penalties.

regulated by the provisions of this article.

(2) A person who is notified with a judicial act referred

to in subarticle (2) of article 18 of this Act may within thirty days

from the date of such notification lodge an appeal before the Appeals

Board objecting to the administrative penalties so fixed>

Provided that an appeal shall not be valid unless>

(a) the return for the period in respect of which the

penalty has been imposed, or a copy thereof, has been submitted

to the Competent Authority<

(b) the amount of the eco-contribution which is not in

dispute, if any, due by the appellant, has been paid< and

(c) a payment of such administrative fees as may be

prescribed has been made.

(3) The Appeals Board shall not annul an administrative

penalty as aforesaid unless such penalty cannot at law be imposed

in the circumstances of the case, or cannot at law be fixed in the

amount established by the Authority due account being given to the

principle of proportionality.

(4) The Appeals Board shall, without delay, set down

the appeal for hearing at an early date, which date shall in no case

be later than sixty days from the date of the service of the appeal on

the Authority.

(5) The appeal, and the notification of the date fixed for

hearing, shall be notified to the Authority without delay, and the

Authority shall file its reply thereto within thirty days from the date

of the notification of the appeal.

(6)

The decision of the Appeals Board upon an appeal

referred to in subarticle (2) of this article, confirming the imposition

of a penalty established by the Authority or reducing any such

penalty, shall upon becoming res judicata be deemed to be a decision

of the Appeals Board equivalent to a decision of the First Hall of the

Civil Court ordering payment by the appellant of the administrative

penalty as confirmed or reduced.

(7)

There shall be a right of appeal to the Court of

Appeal to any of the parties to the proceedings before the Appeals

Board in accordance with article 23 of this Act.

(1) In determining an appeal, the Appeals Board shall

take into account the merits of the appeal, and may in whole or in

part, confirm or annul the decision appealed from, giving in writing

the reasons for its decision and shall cause such decision to be made

public and communicated to the parties to the appeal.

(2)

Subject to the provisions of article 23 the decisions

of the Appeals Board shall be final and binding.

(1) In the exercise of its functions, the Appeals Board

may summon any person to appear before it and give evidence and

produce documents, and the Chairman of the Appeals Board shall

have the power to administer the oath.

(2) The Appeals Board shall endeavour to determine an

appeal within one hundred and eighty days from the lapse of the

period by when the Authority may file its reply to the aforesaid appeal

and in any case shall deliver its final decision not later than thirty

days from when the parties declare that they have concluded with

their evidence and made their final submissions.

(3) The Appeals Board in order to assist it in the exercise

of its functions may appoint independent and impartial experts to

advise it on any issue that may be relevant to any appeal lodged

before it. In such cases the Appeals Board shall be entitled to make

both provisional and final orders in respect of the payment of the

costs and fees of such experts by any of the parties to the appeal.

(4) The Appeals Board in the exercise of its functions

shall have the same powers as are competent to the First Hall, Civil

Court according to law.

(5) The Minister may subject to the provisions of this

Act, by regulations prescribe the procedure to be followed before

the Appeals Board, and subject thereto and to any other provisions

of this Act, the Appeals Board may regulate its own procedure.

(6) The Minister may, with the concurrence of the

Minister responsible for finance by regulation, establish any such

fees as are considered to be necessary in relation to any proceedings

before the Appeals Board.

(7) The Minister may by regulation amend any of the

periods stated in subarticle (2) of this article.

(1) Any party to an appeal to the Appeals Board, Appeal to the

Court of Appeal.

including the Authority, who feels aggrieved by a decision of the

Appeals Board, may on a question of law appeal to the Court of

Appeal (Inferior Jurisdiction) as constituted in accordance with

article 41(6) of the Code of Organization and Civil Procedure by

means of an application filed in the registry of that court within

thirty days from the date of the decision of the Appeals Board.

(2) The Minister responsible for Justice may by

regulation under this subarticle establish the fees payable in the

registry of the court in relation to the filing of judicial acts in

connection with appeals under this article>

Provided that until such fees are so established, the fees in

Schedule A to the Code of Organization and Civil Procedure shall

apply.

(3) The Board established under article 29 of the Code

of Organization and Civil Procedure may make Rules of Court

governing appeals to the Court of Appeal under this article.

(1) Where a notice however so described is required to Service of notices.

be given by the Authority to any person under this Act or any

regulations made thereunder, the notice shall be addressed to that

person and shall be given to the person in any of the following ways

(a)

by delivering it to the person,

(b) by leaving it at the address at which the person

ordinarily resides or carries on business,

(c) by sending it by registered post to the person at the

address at which the person ordinarily resides or carries on

business, or

(d) if an address for the service of notices has been

provided by the person, by leaving it at, or sending it by

registered post addressed to the person to that address.

(1) The Authority, or any person appointed by it for

such purpose, shall, upon the production of his written authority

and at all reasonable times, have the right to enter upon any land,

building or place for the purposes of inspecting any stocks, books,

records or documents, in order to ensure compliance with the

provisions of the Act and the regulations thereunder and may inspect

any such stocks, books, records or documents and may, without fee

or reward, make extracts or copies of any such books, records or

documents.

(2) If access is required in virtue of subarticle (1) of this

article to any premises occupied in whole or in part for the purpose

of habitation, such access shall require the prior warrant issued by a

Magistrate sitting in the Court of Magistrates in its civil

jurisdiction.

(3) In the course of the exercise of the powers under this

article, the Authority may request the assistance of the Police.

(4) Any person who wilfully or maliciously refrains from

giving his assistance, or wilfully obstructs, impedes or delays any

person in the exercise of his duties or powers under this article shall

be liable, on conviction, to a fine (multa) not exceeding five hundred

liri.

Part VII Appeals Board

(1) There shall be an Appeals Board, to be known as

the Eco-Contribution Appeals Board which shall have jurisdiction

to hear and determine appeals from decisions of the Authority as

provided in this Act and in regulations made thereunder.

(2) The Eco-Contribution Appeals Board shall be

appointed by the Minister, and shall be composed of>

(a)

a chairman, and

(b) two other members who in the opinion of the Minister

have the relevant commercial, technical, or financial experience.

(3) The Chairman and members of the Appeals Board

shall be appointed for a term of three years and shall be eligible for

re-appointment.

(4) The Appeals Board shall be independent in the

performance of its functions.

(5) The Chairman and members of the Appeals Board

may be challenged or abstain for any of the reasons for which a

judge may be challenged or may abstain in accordance with the Code

of Organization and Civil Procedure. In such a case the Minister

shall appoint a person, having the qualifications of the chairman or

member challenged or abstaining, to sit in substitution.

(6) A member of the House of Representatives or of the

European Parliament or of a local council shall be disqualified from

being appointed or continuing to be the Chairman or a member of

the Appeals Board for as long as he holds that office.

(7) The Chairman or member of the Appeals Board may

only be removed from office by the Minister on grounds of gross

negligence, conflict of interest, incompetence, or acts or omissions

unbecoming a member of the Appeals Board. In doing so the Minister

shall lay before the House of Representatives a statement giving the

reasons for the removal of the said Chairman or member.

(8) The Minister shall designate a person to serve as

secretary to the Appeals Board and who shall serve in such a capacity

in accordance with the ethical standards appropriate to his position.

Part VIII Miscellaneous

(1) Except where otherwise provided by law, a person Confidentiality.

shall not knowingly disclose information obtained by him while

performing the duties of a member, officer or employee of the

Authority or of an adviser or consultant to the Authority, unless he

is duly authorised by the Authority to do so.

(2) A person who contravenes this article shall be guilty

of an offence against article 257 of the Criminal Code.

(3) Nothing in this article shall prevent the disclosure of

any information to the Authority or, by or on behalf of the Authority

to the Minister or as may be required at law or for the purpose of

prosecuting an offence under this Act or regulations made thereunder.

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