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The Eco-Contribution Act, 2004 (Bill No. 28)

A BILL

entitled

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

Short title

Interpretation

1. This Act may be cited as the Eco-Contribution Act 2004.

2. 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

3. (1) There shall be charged and levied by the Competent 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.

4. (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.
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Imposition of eco- contribution

Time when contribution shall fall due

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Recovery of waste

Savings

Liability for payment of eco- contribution

Time of payment

of eco-contribution

Registration and reporting procedure

Nomination of competent authority

(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.

5. 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 apply to the Competent Authority for a credit of the contribution paid thereon, or part thereof, against eco-contributions which may fall due in future in terms of such regulations as the Minister may prescribe.

6. 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

7. (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.

8. The eco-contribution shall be payable on a quarterly basis in arrears on submission of the return relative to the preceding quarter.

9. 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

10. (1) The Minister shall by order in the Gazette designate a person or body to be the Competent Authority for the purposes of 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.

11. Save where otherwise provided in any regulations made under this Act, the Competent Authority shall be responsible for the 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

12. (1) The Minister, with the concurrence of the Minister of Finance, may exempt any person from the payment, in whole or in part, of the eco-contribution due on products placed on the market by him, subject to such conditions as the Minister may deem fit to impose.

(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.

13. (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;
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Functions of the competent authority

Power to exempt payment of eco- contribution

Power to make regulations

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Administrative infringements

(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; and
(f) anything that may be prescribed in accordance with the provisions of this Act.

Part VI Enforcement and Sanctions

14. (1) The Authority may impose an administrative penalty 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 thirty thousand liri for each infringement or failure to comply and, two 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.

15. Where an administrative infringement of any provision of this Act is committed by a body corporate and is proved to have 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, that person, as well as the body corporate, shall be liable to be proceeded against and punished as if he was responsible for the said infringement.

16. 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 to a penalty of a fine (multa) not exceeding five 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, or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment, in respect of any conviction.
Provided that for a second or subsequent conviction for an offence the punishment of imprisonment referred to in this article shall be for a term not exceeding one year.

17. 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.

18. (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.

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Administrative infringements by bodies corporate

Criminal proceedings

Prescription for offences and administrative infringements

Imposition of administrative penalty

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Reasonable excuse

Appeals from administrative penalties

(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 Organisation and Civil Procedure.
(3) Notwithstanding the provisions of subarticle (2) of article 256 of the Code of Organisation 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.

19. 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.

20. (1) The procedure to be followed in relation to appeals against administrative penalties imposed by the Authority shall be 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.
(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.

21. (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.

22. (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.
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Decisions of

Appeals Board

Procedure of the

Appeals Board

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Appeal to the

Court of Appeal

(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.

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

24. (1) Where a notice however so described is required to 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.

25. Where an appeal has been lodged in terms of article 20 in respect of an amount of eco-contribution which a person is called upon by the Authority to pay, such appeal shall not be determined unless such amount of eco-contribution has been deposited with the Authority or adequate security therefore, in such form as the Authority shall determine, has been given.

Provided that the Appeals Board may, where it considers that the provision of the deposit or security provided for above will cause undue hardship or will be otherwise unjust, exempt the appellant from making such deposit or security in whole or in part.

26. (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.
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Service of notices

Security by way of deposit

Right of access and inspection

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(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

27 (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 who shall be an advocate with at least seven years practice, 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

28. (1) Except where otherwise provided by law, a person shall not knowingly disclose confidential 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) In this article “confidential information” means any information however so described which is considered by the Authority to be confidential, including but not limited to all returns, records, documents and information submitted to the Authority in terms of this Act and the regulations thereunder.
(3) A person who contravenes this article shall be guilty of an offence against this Act and shall on conviction be liable to a fine (multa) not exceeding five hundred liri.
(4) 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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Confidentiality

FIRST SCHEDULE

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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SECOND SCHEDULE
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(Article 9)

Registration and Reporting Procedure

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-

Registration

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Returns

Records and statements

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 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.

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

(i) on the volume of products brought into Malta or manufactured, as applicable; and
(ii) on the volume of products placed on the market during the relative quarter; and
(iii) on the eco-contribution payable thereon; and
(iv) 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.

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.

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.
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Provision of information

Objects and Reasons

The object of the Bill is to provide for the payment of eco-contribution on products which result in waste and which harm the environment.
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Ippubblikat mid-Dipartiment ta’ l-Informazzjoni (doi.gov.mt) — Valletta — Published by the Department of Information (doi.gov.mt) — Valletta

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

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