1 Legal framework
1.1 Which legislative and regulatory provisions govern environment and climate regulation in your jurisdiction?
A considerable amount of environmental and climate-related law and policy has been promulgated in Malta. New legislation is enacted and existing legislation is updated to implement EU directives on an ongoing basis. Of particular importance is EU Regulation 2018/1999 on the Governance of the Energy Union and Climate Action – an ‘umbrella' statute that specifies the manner in which the 2030 EU energy and climate objectives should be achieved (as an EU regulation, this is directly applicable in Malta).
Another important statute in the context of climate change is the Environment Protection Act (Chapter 549 of the Laws of Malta), which – together with all subsidiary legislation adopted thereunder – establishes several regulatory controls in relation to the duty of all natural and legal persons to protect the environment, and to take preventive and remedial measures aimed at protecting the environment and managing natural resources in a sustainable manner.
1.2 Which bilateral and multilateral instruments on environment and climate regulation have effect in your jurisdiction?
Multilateral environmental agreements (MEAs) generally fall under the auspices of either the United Nations – through the UN Environment Programme (UNEP) and the United Nations Economic Commission for Europe (UNECE) – or the Council of Europe (COE):
- The UNEP is a UN agency that coordinates environmental activities;
- The UNECE is one of five regional commissions which aims to promote pan-European economic integration; and
- The COE is an international organisation which aims to uphold human rights, democracy and the rule of law in Europe, and includes MEAs on biodiversity and landscape protection.
Malta is a party to various MEAs and the European Union is a party to a number of environmental MEAs, including the following:
- the United Nations Framework Convention on Climate Change;
- the Kyoto Protocol;
- the Paris Agreement;
- the Basel Convention for the Transboundary Movement of Hazardous Wastes and their Disposal;
- the Vienna Convention on the Protection of the Ozone Layer; and
- the Aarhus Convention on Access to Information and Access to Justice in Environmental Matters.
1.3 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have? To what extent do they cooperate? What are the mechanisms for cooperation?
The Environment & Resource Authority (ERA) is responsible for compliance and environmental law enforcement. In order to improve its capabilities, in 2017 it consolidated all of its compliance functions, which were previously dispersed within various units, into a single Compliance and Enforcement Unit. This emphasis on compliance and enforcement became even more prominent when the erstwhile unit became a dedicated Compliance & Enforcement Directorate in June 2018 and a director for compliance and enforcement was appointed in June 2018.
Compliance work mainly involves ensuring compliance with permits, authorisations and other legal requirements, such as reporting obligations. The directorate has the authority to institute criminal proceedings as well administrative actions for non-compliance. The latter may consist of stop and compliance orders and fines.
The Malta Resource Authority is a public corporate body that regulates water, energy and mineral resources, to promote energy efficiency and renewable sources of energy. It is the competent authority responsible for climate change reporting and the operation of emissions trading schemes.
1.4 What is the regulators' general approach to environment and climate regulation/action?
The ERA's powers are quite generous and include the following:
- the issuance of permits;
- the assessment, investigation and auditing of projects; and
The ERA's general approach is quite positive and proactive; however, like many public institutions and authorities, it lacks the necessary resources to monitor and enforce infringements.
2 Environmental protection
2.1 What are the key features of the regulatory regimes that protect the following environmental assets in your jurisdiction? (a) Air; (b) Soil; (c) Fresh water; (d) Sea water; (e) Flora and fauna; and (f) Natural habitats and scenic landscapes.
With regard to ambient air pollution, different statutes have transposed EU directives and address specific emissions. They include the Ambient Air Quality Regulations (SL 549.59), which transpose:
- EU Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe; and
- EU Directive 2004/107/EC of the European Parliament and of the Council of 15 December 2004 on arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air.
Other legislation deals specifically with air quality, assessment and management, and with national emissions ceilings, setting standards or limits in the process. However, the National Air Pollution Control Programme for Malta, which outlines the measures selected to meet these emission reduction commitments, no longer applies and needs to be updated.
The protection of soil by the Environment & Resource Authority (ERA) is divided into three areas:
- biodiversity – in order to tackle issues relating to soil biodiversity, the ERA adopted and implemented Malta's National Biodiversity and Action Plan, which sets national targets that address both direct pressures and underlying causes of biodiversity loss;
- degradation threats; and
- Maltese soil.
In addition to the ERA, the Agricultural Directorate is responsible for the preservation of fertile soil, including with respect to the construction of buildings and the displacement of fertile soil as a result of such construction. The directorate has the power to inspect the land on which the building is in the course of construction or on which any building will be constructed.
(c) Fresh water
The water-related legislation enacted under the Environment Protection Act aims to protect water resources through the regulation and management of pressures, in order to safeguard the water bodies and the services that they provide. The legislation also provides for the monitoring of Maltese waters, in order to assess their status and identify trends, and adapt as necessary.
The two main pieces of legislation in force are:
- the Water Framework Directive Regulations, which transpose the EU Water Framework Directive (WFD) and the linked Environmental Quality Standards Directive; and
- the Marine Strategy Framework Regulations, which transpose the EU Marine Strategy Framework Directive.
The WFD encompasses inland surface waters, transitional waters, territorial waters and groundwater; while the MSFD encompasses all marine waters, extending the geographical coverage and scope of the marine waters covered by the water framework legislation.
(d) Sea water
The Marine Policy Framework Regulations (SL 549.62) transpose the European Marine Policy Framework Directive into Maltese law. They establish a framework under which Malta will take the necessary measures to achieve or maintain good environmental status in the marine environment. With regard to the indicative lists of elements to be taken into account in the preparation of marine strategies, they transpose EU Directive 2008/56/EC, as amended by Commission Directive 2017/845/EU. However, such strategies related to the period up until 2020 and are thus in the process of being updated.
(e) Flora and fauna and natural habitats
The Flora, Fauna and Natural Habitats Protection Regulations (SL 549.44) are designed to:
- maintain or restore, through favourable conservation status, natural habitats and species of wild fauna and flora of EU interest; and
- take account of economic, social and cultural requirements and regional and local characteristics.
The regulations implement the following instruments in Malta:
- EU Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;
- EU Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds;
- the Convention on Biological Diversity;
- the Convention on the Conservation of European Wildlife and Natural Habitats;
- the Convention on the Conservation of Migratory Species of Wild Animals; and
- the Protocol for Specially Protected Areas and Biological Diversity in the Mediterranean of the Barcelona Convention.
2.2 What are the key features of the regulatory regime that protects against environmental nuisances (eg, noise, odour and light pollution) in your jurisdiction?
Noise: The Noise Emissions in the Environment from Equipment for Use Outdoors Regulations (SL 427.19) govern permissible sound levels, examination certificates and equipment measurements under the following directives:
- EU Directive 79/113/EEC;
- EU Directive 84/532/EEC;
- EU Directive 84/533/EEC;
- EU Directive 84/534/EEC;
- EU Directive 84/535/EEC;
- EU Directive 84/536/EEC;
- EU Directive 84/537/EEC;
- EU Directive 84/538/EEC; and
- EU Directive 86/662/EEC.
These regulations cover equipment for use outdoors:
- that is placed on the market or put into service as an entire unit suitable for its intended use; and
- where the manufacturers or authorised representatives ensure that the equipment satisfies the requirements concerning noise emissions.
The Air Navigation (Noise Certification and Operation of Aircraft) Order (SL 499.18) applies to all subsonic jet and propeller-driven aircraft, which must comply with certain standards relating to noise. The order provides that no aircraft to which this order applies may land or take-off in Malta without a valid noise certificate.
The Civil Aviation (Noise Related Operating Restriction at Airports) Regulations (SL 499.39) empower the Civil Aviation Directorate to impose measures such as operating restrictions and economic incentives, as well as the withdrawal of marginally compliant aircraft, to address noise problems at airports in Malta.
The Assessment and Management of Environment Noise Regulations (SL 549.37) define a common approach with the aim of avoiding, preventing and reducing on a prioritised basis the harmful effects of exposure to environmental noise, including nuisance. This is achieved through various actions, such as:
- noise mapping;
- publishing information on environmental noise; and
- adopting action plans.
Each action is aimed at the prevention and reduction of environmental noise where possible, and particularly where exposure levels can have harmful effects on human health.
Light: In June 2020, the Ministry of Climate Change and Planning, the ERA and the Planning Authority issued new Guidelines for the Reduction of Light Pollution in the Maltese Islands. The guidelines provide:
- an overview of the effects of light pollution;
- guidance on how light pollution can be avoided or reduced; and
- a framework for the adoption of dark sky areas on the Maltese main islands, similar to those already designated on Gozo and Comino.
2.3 What are the consequences of breach of these regulatory regimes?
The consequence of breach of the regulations discussed in question 2.2 depends not only on the regulation, but also on the severity of the breach. Where possible, the relevant authority should first seek to remedy the situation; however, where the breach has caused damage or destruction, and/or where there is a serious material breach, the party found guilty of such may be subject to fines or imprisonment. Moreover, where permits, authorisations and/or certificates are involved, the relevant authorities may withdraw, prohibit, revoke, suspend or vary those authorisations or similar.
The Crimes Against the Environment Act, which implemented Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law, sets out a list of acts that will be regarded as ‘crimes against the environment' and will be prosecuted as such. They include:
- the disposal of waste and nuclear material;
- the destruction of wild fauna or flora;
- conduct which causes the significant deterioration of a habitat within a protected area site; and
- the import of ozone-depleting substances.
3 Climate change/action
3.1 What are the key features of the regulatory regime governing greenhouse gas emissions in your jurisdiction?
Malta's efforts towards climate change mitigation and adaptation are set out in the Climate Action Act (Chapter 543 of the Laws of Malta), enacted in 2015, which recognises the duty of every person and the government to protect the climate and to assist in the taking of preventative and remedial measures to protect the climate. The act was strengthened further by the ratification of the Paris Agreement, through which Malta reaffirmed its commitment to address climate issues to its fullest potential and contribute towards achieving the European Union's collective target of a 40% reduction in greenhouse gas (GHG) emissions by 2030 compared to 1990 levels.
3.2 What emissions trading regimes are operational in your jurisdiction and what are their key features?
As an EU member state, Malta is part of the European Union's multi-country and multi-sector EU Emissions Trading System (EU ETS), which covers large, stationary, greenhouse gas-emitting industrial installations and aviation activities. The European Union Greenhouse Gas Emissions Trading System for Stationary Installations Regulations (SL 423.50) and the European Union Greenhouse Gas Emissions Trading System for Aviation Regulations (SL 423.51) transpose EU Directive 2003/87/EC on the implementation of the EU emissions trading system in the European Union, as amended by the following directives, decisions and regulations:
- EU Directive 2004/101/EC;
- EU Directive 2008/101/EC;
- EU Directive 2009/29/EC;
- EU Decision 2015/1814;
- EU Regulation 2017/2392 and
- EU Directive 2018/410.
All four public electricity generation plants operating in Malta fall within the scope of the EU ETS. No other industrial establishments large enough to fall under the EU ETS are currently operating in Malta. None of the EU ETS installations in Malta receives allocations of free allowances. A number of local aircraft operators also participate in the EU ETS for aviation.
3.3 How prominently does renewable energy feature in the energy mix in your jurisdiction? What regulations and other measures have been put in place to promote the use of renewable energy?
The Promotion of Energy from Renewable Sources Regulations (SL 545.11) set out the main framework governing GHGs in Malta. The regulations govern both emissions reductions and the promotion of energy from renewable energy sources, and set the renewable energy targets that Malta was obliged to achieve by 2020 pursuant to the Renewable Energy Action Plan for 2020.
The four main schemes established under the Renewable Energy Action Plan for 2020 were:
- the feed-in tariff scheme;
- the photovoltaic (PV) grant scheme;
- the solar water heater scheme; and
- the heat pump water heater scheme.
Solar PV support is provided through operating aid and in the form of a grant on capital investment for households.
Additional financial support and grant packages are provided to promote the electrification of transport in Malta. This support includes scrappage schemes and exemptions from registration fees and annual road licence fees.
3.4 What regulations and other measures have been put in place to promote greater energy efficiency in your jurisdiction?
EU Regulation 2018/1999 of the European Parliament and of the Council on the Governance of the Energy Union and Climate Action sets out the legislative foundation for the governance system of the Energy Union and Climate Action, which aims to ensure the achievement of the 2030 and long-term objectives and targets of the Energy Union in line member states to:
- develop integrated national energy and climate plans (NECPs) that cover the five dimensions of the Energy Union (see below) for the period 2021–2030 and for every subsequent 10-year period thereafter, based on a common template;
- submit a draft plan by 31 December 2018 and a final NECP by 31 December 2019 to the European Commission, and every 10 years thereafter; and
- report on their progress in implementing the NECPs, mostly on a biennial basis.
Malta published its most recent plan in December 2019 – the 2030 NEPC– in line with its obligations under this regulation. The 2030 NECP follows the scope of the Energy Union and covers its five dimensions, as follows:
- decarbonisation, through reductions in GHG emissions and a greater focus on renewable energy consumption;
- energy efficiency, through the achievement of energy saving obligations;
- energy security, through the reduction of import dependency and diversification of energy sources and suppliers;
- internal energy market, through the assurance of a healthy and competitive market; and
- research innovation and competitiveness, through the promotion of and support for research and innovation.
3.5 What other initiatives have been rolled out in your jurisdiction to combat climate change and its effects? How are those effects typically manifesting in your jurisdiction at the present time?
As outlined in question 3.4, the 2030 NECP sets out the national objectives and contributions for 2030 in relation to the five dimensions of the Energy Union and describes the policies and measures that will be adopted to achieve these objectives. This is supplemented by analysis of the current situation in Malta in relation to the five dimensions, together with projections up to 2040 based on robust and consistent data, assumptions and modelling exercises. The 2030 NECP serves as a strategic planning, framework and policy document that will guide Malta's contribution to achieving the Energy Union's 2030 objectives and targets.
The Climate Action Act (Chapter 543 of the Laws of Malta) sets out the national legislative framework for climate action and seeks:
- to mitigate climate change by:
- limiting anthropogenic emissions of GHGs; and
- protecting and enhancing greenhouse gas sinks and reservoirs; and
- to contribute to:
- the prevention, avoidance and reduction of the adverse impacts of climate change; and
- the reduction of vulnerability, the enhancement of resilience and adaptation to the adverse effects of climate change.
The Climate Action Act establishes a national Climate Action Board and a Climate Action Fund, and requires the government to prepare and update low carbon development strategies and national adaptation strategies.
3.6 What impact is Covid-19 likely to have on climate action in your jurisdiction?
As Malta is still battling the effects of the COVID-19 pandemic, it is difficult at this stage to determine what impact (if any) it will have on climate change in Malta. As in many other jurisdictions, the main concern is that the Maltese government will continue to focus on economic incentives and stability, rather taking this opportunity to transition to a more sustainable economic model based on environmental and social respect as well as economic development. That said, the European Union, under the direction of European Commission President Ursula von der Leyen, is very much committed to the European Green Deal and to the objective of achieving carbon neutrality by 2050.
4 Environmental permits and approvals
4.1 What environmental permits and approvals are required in your jurisdiction, and when are these typically required?
An environmental permit issued by the Environment & Resource Authority (ERA) is required if:
- activities might pollute the air, water or land;
- activities are to be carried out in a protected area; or
- activities might affect a protected species of flora or fauna.
Prior to carrying out any structural works on a property or project, or to changing the permitted use of a building, a planning permit issued by the Planning Authority is required.
4.2 What is the process for obtaining environmental permits and approvals? If a permit or approval is refused, can the decision be appealed?
The process for obtaining an environmental permit from the ERA involves the following steps:
- submission of the application;
- vetting of the application;
- validation of the application;
- review of the application;
- consultation on the application; and
The applicant may appeal the decision to the Environment and Planning Review Tribunal in accordance with Article 63 of the Environment Protection Act and the Environmental and Planning Review Tribunal Act.
4.3 What is the duration of environmental permits and approvals?
There are no strict timeframes set out in law for the ERA to issue environmental permits, so it is at the discretion of the ERA to implement its own timeframes. However, the Environment Protection Act does state that all decisions on applications should be taken without delay. The timeframe for one environmental permit may differ from another, as this will depend on the particular activity for which the environmental permit is being issued.
4.4 What, if any, requirements and restrictions apply to the transfer of environmental permits and approvals?
As a general rule, in the case of land and property development, permits or licences attach to the particular development being licensed and can generally be transferred from one party to another, provided that the licensed development remains the same. However, insofar as other permits not concerning land development are concerned, there are a substantial number of exceptions to this general rule. By way of example, environmental permits granted under the waste regulations are not transferrable without the approval of the competent authority.
4.5 What ongoing rights and obligations apply to the holder of an environmental permit or approval?
Environmental obligations may be imposed in connection with an environmental permit or authorisation where the ERA considers it appropriate, in the public interest and in line with the objectives of the Environment Protection Act, to require the applicant to:
- carry out an activity benefiting the environment in line with the Environment Protection Act;
- make a payment – whether financial or in kind – towards an environmental purpose; or
- confer some extraneous right or benefit to the environment.
The ERA will seek to achieve these benefits or gains through:
- conditions attached to a grant or authorisation; or
- the imposition of environment obligations through a public deed concluded between the applicant for authorisation and the ERA.
Environment obligations may include:
- mutually agreed terms in relation to access;
- restrictions on how to use the relevant land or conduct the relevant operations;
- pre-determined specified activities or operations to be used; and/or
- payment of a sum or sums to the ERA.
4.6 What are the consequences of breach of an environmental approval or permit?
The ERA may revoke or modify an authorisation or permit in case of:
- breach of a material condition contained in the authorisation or permit;
- public safety or significant environmental damage or risk;
- fraud; and/or
- an error on the face of the record.
The ERA should state the reasons for such modification or revocation in its decision. Prior to any decision to revoke or modify, the ERA must inform the holder of the authorisation of the date and time of a meeting at which the ERA will hear its submissions, should it choose to attend, as well as those of any other person.
The holder of the authorisation can appeal within 30 days of the date of service of the decision. No compensation will be payable by the ERA to the holder of the authorisation where the decision for revocation or modification was based on fraud, an error of law and/or breach of a material condition,
5 Waste management
5.1 How is ‘waste' defined and regulated in your jurisdiction? Does the regime vary depending on the type of waste involved?
The Environment Protection Act defines ‘waste' as any item, substance or object which the holder discards or intends to discard, or is required to keep in order to discard, including all such other items, substances or objects as the minister for the environment may prescribe (Section 2). There are various categories of waste, some of which involve more onerous duties and controls. For example, in the case of radioactive waste, specific approval from the competent authorities is required, whether this is intended to be disposed of in Malta or shipped out of Malta (SL 549.51).
Additional duties and controls also apply to vehicles for scrap – that is, vehicles that have reached the end of their usable life. A specific legal regime applies here (SL 549.36, implementing Directive 2000/53/EC as amended). Specific rules further apply to the recycling of ships, which have gained prominence since the entry into force of the EU Ship Recycling Regulation (1257/2013). In Malta, a ship destined for recycling changes its designation from a sea-going vessel to ‘waste'; as such, reference should also be made to:
- the Waste Management (Shipments of Waste) Regulations (SL 549.65);
- the EU Waste Shipment Regulation (1013/2006); and
- the Basel Convention.
Other categories of waste that involve additional controls and duties include:
- waste batteries and accumulators (SL 549.54);
- waste from extractive industries and backfilling (SL 549.50); and
- polychlorinated biphenyls and polychlorinated terphenyls (SL 549.28).
5.2 What key rights and obligations apply to waste operators in your jurisdiction? What are the consequences of breach?
Under the Waste Regulations (SL 549.63), which implement EU Directive 2008/98/EC on waste, any original waste producer or other waste holder that undertakes the treatment of waste itself or has the treatment of waste handled by a dealer, and any undertaking which carries out waste treatment operations itself or on behalf of a private or public waste collector, has a duty to ensure that the waste is managed in accordance with paragraphs 2 and 3 of Schedule 5 of the Waste Regulations and the conditions attached to any permit.
Any original waste producer or other waste holder is obliged to:
- prevent any contravention of the Waste Regulations;
- prevent the escape of such waste from its control or that of any other person; and
- ensure that such waste is managed by a holder of the relevant permit.
The Waste Regulations provide that anyone that, among other things, fails to manage waste in accordance with the regulations will be guilty of an offence. The degree of punishment will vary depending on whether the conviction is a first, second or subsequent conviction (Regulation 35 of the Waste Regulations). Moreover, Article 30 of the Criminal Code (Chapter 9 of the Laws of Malta) on disqualifications will apply, mutatis mutandis, to proceedings in respect of offences under the Waste Regulations, in which case the operator may be disqualified from holding or obtaining a licence or permit.
5.3 Are any producer responsibility regimes applicable in your jurisdiction?
The legal regime in this regard is commonly referred to as ‘extended producer responsibility'. This regime is set out in the Waste Regulations (SL 549.63) and aims to ensure that businesses/producers that manufacture and/or import products and place them on the market assume responsibility for those products. Based on the polluter pays principle, the regime requires such businesses/producers to bear some of the waste management costs of collection, sorting or treatment and recycling and/or recovery. Ultimately, the law aims to reduce the overall impact of waste on human health and the environment.
This regime, insofar as takeback or recovery is concerned, is limited to the following categories of waste:
- packaging waste, in accordance with the Waste Management (Packaging and Packaging Waste) Regulations (SL 549.43), which transposed EU Directive 94/62/EC into national law. The producers of packaging waste are specifically obliged to recover and recycle such waste;
- end-of-life vehicles, in accordance with the Waste Management (End of Life Vehicles) Regulations (SL 549.36), which transposed the EU Directive on End-of-Life Vehicles into national law;
- electrical and electronic equipment, in accordance with the Waste Management (Electrical and Electronic Equipment) Regulations, which transposed EU Directive 2002/96/EC as amended into national law; and
- waste batteries and accumulators in terms of the Waste Management (Waste Batteries and Accumulators) Regulations, which transposed most of the provisions of Directive 2006/66/EC into national law and set out collection and takeback mechanisms.
6 Hazardous substances
6.1 What are the key features of the regulatory regime governing hazardous activities and substances in your jurisdiction?
There is no specific legislation that addresses hazardous activities; reference should be made to the Waste Regulations referred to in question 5.
6.2 What key rights and obligations apply to operators of hazardous sites in your jurisdiction?
The production, collection and transportation of hazardous waste, as well as its storage and treatment, must be carried out under conditions that ensure adequate protection of the environment and human health. The holders of hazardous waste must ensure that, in the course of its collection, transport and temporary storage, such hazardous waste is securely packaged and labelled in accordance with international and national standards, or as prescribed by the competent authority.
Anyone intending to transfer hazardous waste or non-hazardous waste, as prescribed by the competent authority, within the Maltese territory or Maltese waters must inform the competent authority of the intended transfer at least 15 days before the actual transfer is planned to take place. The transboundary movement of waste must take place in accordance with the Waste Management (Shipments of Waste) Regulation and the Basel Convention
6.3 What reporting requirements apply to environmental accidents in your jurisdiction?
The Prevention and Remedying of Environmental Damage Regulations (SL 549.97) oblige operators to take all necessary preventive measures where there is an imminent threat to environmental damage. Operators must notify the Environment & Resources Authority (ERA) of an imminent threat of environmental damage as soon as possible, including any preventive measures adopted to prevent such damage from occurring.
Moreover, where environmental damage has occurred, the operator must inform the competent authority of all relevant aspects of the situation without delay, and take:
- all practicable steps to control, contain, remove or otherwise manage the relevant contaminants and other damage factors in order to limit or prevent further environmental damage and adverse effects on human health or further impairment of services; and
- the necessary remedial measures in accordance with Schedule II of the regulations.
6.4 What is the process for investigating environmental accidents in your jurisdiction?
The ERA is empowered to investigate any activity, intervention, project, operation or land use that may have an effect on the environment. For the purposes of conducting an investigation, the ERA is authorised to enter any premises (public or private), vehicle, vessel or other place, with the assistance of the police if necessary. Anyone that obstructs, threatens, attacks or impedes an officer of the ERA in the exercise of his or her duties under the Environment Protection Act will be guilty of an offence and, on conviction, will be liable to imprisonment for up to three years, a fine of up to €100,000 or both.
The ERA may also impose compliance orders requiring such remedial actions as may be specified in the order to be taken within a specified timeframe to:
- restore the situation or the land to its condition before the activity took place;
- remedy the consequences of the activities; or
- ensure compliance with the conditions specified in the order.
6.5 What are the potential consequences of breach of the regulatory regime governing hazardous activities and substances – both for operators themselves and for directors, managers and employees?
As hazardous substances and activities are regulated by the Waste Regulations, reference is made to Regulation 35 therein, which lists the offences under the regulations (see also question 5.2).
Moreover, if it is established that the wrongdoing giving rise to a criminal offence was committed by a body corporate, the punishment levied for that offence will be attributed to someone who, at the time the offence was committed, was a director, manager, secretary or other similar officer, or was purporting to act in any such capacity, unless that person manages to prove in court that the offence was committed without his or her knowledge and that he or she exercised all due diligence to prevent the commission of the offence (Interpretation Act, Chapter 249 of the Laws of Malta). If the offence arising from the environmental wrong is deemed not to be a corporate wrongdoing, but to have been committed by a director or officer personally, the latter will be held liable for the wrongdoing in accordance with general principles of law.
As a matter of public policy, it is not possible to obtain insurance to cover directors and officers against punishments that follow as a consequence of a serious crime committed by them.
7 Contaminated land
7.1 What are the key features of the regulatory regime governing contaminated land in your jurisdiction?
Insofar as the contamination of soil and groundwater is concerned, reference should be made to the Protection of Groundwater Against Pollution and Deterioration Regulations (SL 549.53) and the Water Policy Framework Regulations (SL 549.100).
The Water Policy Framework Regulations also apply to the Protection of Groundwater against Pollution and Deterioration Regulations, except where there is inconsistency between the two. The Water Policy Framework Regulations provide that anyone that, among other things, fails to comply with any provision of these regulations will be guilty of an offence. The degree of punishment varies depending on whether the conviction is a first, second or subsequent conviction (Regulation 18). Moreover, Article 30 of the Criminal Code (Chapter 9 of the Laws of Malta) on disqualifications will apply, mutatis mutandis, to proceedings in respect of offences against the Water Policy Framework Regulations, in which case an operator may be disqualified from holding or obtaining a licence or permit.
Pollution caused to groundwater by nitrates from agricultural sources is specifically regulated (SL 549.25).
7.2 Who bears the liability for the clean-up of contaminated land? Can such liability be excluded or subcontracted/delegated?
The Environment & Resource Authority has the power to take the necessary remedial action to clean up contaminated land, even if the pollution occurred prior to the acquisition of the land by the present owner, operator or permit holder. However, as a rule of thumb, present owners, operators and permit holders cannot be held liable for damages from pollution not caused by them; this rule also applies to historic contamination.
7.3 How is liability determined in cases where multiple parties have contributed to the contamination?
There are no special rules that specifically regulate contamination. Liability will thus be shared between the responsible parties in accordance with ordinary principles of law. Under general principles, each party will be responsible for the damage caused by its actions, up to that extent and no more. Under Maltese law, joint and several liability cannot be presumed – so much so that, unless it is specifically provided for, it will not apply (Section 1089 of the Civil Code). Although Maltese law does not provide for joint and several liability in contamination cases, under general principles of law, where two or more parties cause damage maliciously (ie, wilful misconduct), their liability to make good the damage will be joint and several. This general rule will naturally apply in contamination cases. If the actions of some of the offenders constitute wilful misconduct and those of others do not, the liability of the former will be joint and several, while the latter will be liable only for such part of the damages they may have caused directly (Section 1049 of the Civil Code).
Where part of the damage cannot be ascertained, the injured party is entitled to claim that the whole damage be made good by any one of the tortfeasors (offenders), even where none or only some of them acted with malice. In such cases, if the injured party decides to institute proceedings against only one of the tortfeasors, the latter will be entitled to demand that all parties that caused the damage be joined in those proceedings. The court may apportion among the parties the sum fixed by way of damages in equal or unequal shares, according to the circumstances. However, this will not prejudice the right of the injured party to insist not only that it be awarded the whole sum, but also that the sum awarded be recoverable from any one of the persons concerned. In other words, in such circumstances, the tortfeasors remain jointly and severally liable towards the injured party (Section 1050 of the Civil Code).
The Environmental Damage Regulations do not specifically provide for "cost allocation in cases of multiple-party causation", and instead refer such cases to "other relevant legislation" (Regulation 10).
7.4 Can individuals bring proceedings against polluters, landowners and/or occupiers where they have been affected by contamination? If so, which court/tribunal is competent to deal with such proceedings?
Under general principles of law, a purchaser of land will have a right of action to seek compensation from the seller if the purchaser can demonstrate that the contamination in whole or in part:
- amounts to a breach of warranty or of a condition, express or implied, in the contract of acquisition;
- renders the land not fit for its intended use, as per the contract of acquisition, provided that the buyer was not aware of the contamination prior to the acquisition; or
- causes the purchaser to suffer a substantial diminution in the quality of the land, provided that the present owner was not aware of the contamination prior to the acquisition.
8 Reporting, auditing and disclosure
8.1 Are any public registers of environmental information maintained in your jurisdiction? If so, what are they, who can access them and how? What possibilities exist for third parties to access environmental information and what is the process for doing so?
Article 57(2) of the Environment Protection Act provides that the Environment & Resource Authority (ERA) must keep and make available for public inspection a register or registers:
- of all applications for authorisation, containing the name of the applicant and details of the proposal, including documents and detailed plans;
- of all decisions, including documents and detailed plans, made on such applications; and
- of all reports and assessments compiled in accordance with the provisions of the act, including any environmental impact assessment reports.
8.2 What environmental reporting requirements apply to companies in your jurisdiction?
Sustainable finance has become a popular topic, in particular among the younger generations. In 2019, EU Regulation 2019/2088 was adopted on sustainability‐related disclosures in the financial services sector. This requires financial actors to consider two main issues:
- disclosure of the principal adverse sustainability impacts; and
- quantification of the beneficial investment results.
Financial products are to be classified as either:
- sustainable investments;
- partially sustainable investments; or
- neither, in which case disclosure on the sustainability risks and their possible impact on financial returns should be disclosed.
8.3 Are companies in your jurisdiction subject to environmental audit requirements?
Companies may be subject to certain audit requirements if they hold an environmental permit, authorisation or similar issued by an environmental regulator such as the Environment & Resource Authority (ERA). The ERA may issue a permit or similar subject to certain conditions, which must be complied with. The ERA is also empowered to audit and investigate the relevant holder or authorised person to ensure compliance with the imposed permit conditions, as well as any other regulations and/or obligations. Environmental audits may also be requested by one of the parties (usually the acquirer) in the event of the acquisition or transfer of a company or land; however, this is a voluntary demand and does not emanate from hard law.
8.4 When and how must environmental issues be disclosed (eg, in the event of the potential sale of land or a merger or acquisition)?
The parties to a sale or merger have no specific obligations to disclose environmental issues. However, there is a growing trend to integrate environmental, social and governance considerations into such transactions. That said, it is common practice during such transactions to request and provide proof of title, and to ensure that any environmental permits or similar (where required and necessary) are obtained and/or in order.
9.1 What environmental and climate taxes are applicable in your jurisdiction?
The Maltese government has issued a Single-Use Plastic Products Strategy for 2020–2030, introducing measures to eliminate plastic and provide alternatives to the use of single-use plastic products. The strategy provides for a ban on the use of certain products in Malta, rather than the imposition of a tax. As from January 2021, Malta has banned the import of single-use plastic and the sale of these products is expected to be banned from January 2022.
Malta has also introduced an environmental contribution charged on stays in tourist accommodation. The funds raised will contribute towards the upgrade of local infrastructure in touristic areas around the Maltese islands.
The Motor Vehicles Registration and Licensing Act provides for the payment of a registration tax and an annual circulation licence fee, which varies depending on the carbon emission levels of the vehicle.
9.2 Are any exemptions or incentives available?
The Ministry for Energy, Enterprise and Sustainable Development's Energy and Water Agency has developed schemes to provide financial assistance for research and innovation projects in the energy and water fields.
Schemes are also in place through which local businesses can benefit from up to €5,000 to cover the costs of an energy audit, which provides them with recommendations to increase their energy efficiency.
Additional incentives in the form of grants and tax credits are also available for businesses to replace or upgrade equipment to reduce their energy consumption, and to renovate or upgrade existing heating and cooling systems.
A value added tax refund scheme also applies to the purchase of bicycles and electronic bicycles, electric motorcycles and scooters.
Other schemes include grants for:
- the installation of solar panels, heat pump water heaters, solar water heaters and renewable energy storage batteries;
- the purchase of reverse osmosis systems;
- the purchase of environmentally friendly vehicles; and
- the scrappage of old vehicles.
9.3 What strategies might parties consider to mitigate their environmental and climate tax liabilities?
As outlined in question 9.2, businesses that opt for environmentally friendly options can benefit from government grants, which will reduce the initial cost of investment. Opting for environmentally friendly vehicles will also reduce the registration taxes of the vehicle and the annual fees payable in relation thereto.
10.1 What types of environmental insurance arrangements are put in place in your jurisdiction? Is there any mandatory environmental insurance in your jurisdiction? How sophisticated is the environmental insurance market? What, if anything, is excluded from insurance cover?
Given the increase in environmental awareness and responsibilities, environmental risk insurance has recently become more common in Malta. The principal types of environmental risk insurance in Malta relate mainly to marine pollution and land pollution, with an emphasis on:
- oil spills;
- wreck removal;
- maritime claims;
- the carriage of passengers at sea;
- the shipment of waste; and
- the disposal and treatment of waste.
To date, however, no insurer based in (or with a branch in) Malta offers standalone environmental insurance policies. This is reflected in the European Commission's 2020 report entitled Improving Financial Security in the Context of the Environmental Liability Directive, which confirms that in Malta, standalone environmental insurance policies are available solely via foreign insurance companies and/or multinational insurers through passporting.
10.2 What are the ‘green finance' arrangements in your jurisdiction? To whom do they apply? What, if any, obligations do they impose? Who is responsible for monitoring, enforcing and reviewing such arrangements in your jurisdiction?
The Malta Stock Exchange (MSE) has announced that the Malta Financial Services Authority (NFSA) has approved the bylaws for the establishment of an MSE Green Market, to support the commitments of both Malta and the European Union relating to the promotion of sustainable finance and investments.
The MSE Green Market will facilitate the listing of green bonds on the local capital markets. Issuers seeking to raise finance for green projects must meet the MSE's Green List criteria (based on the International Capital Markets Association's Green Bond Principles). Issuers meeting these requirements will qualify for discounted listing fees. Qualifying issuers will need to invest in projects that contribute towards environmental objectives such as:
- climate change mitigation;
- climate change adaptation;
- pollution prevention; and
- sustainable use of water and marine resources.
In terms of regulation and enforcement, green bonds must first be admitted to listing by the MFSA following the submission of a prospectus in line with the MFSA's Listing Rules.
11.1 In which forums are environmental and climate change disputes heard in your jurisdiction?
Environmental proceedings in court are either civil or criminal, depending on their nature. An act or omission can give rise to both civil and criminal proceedings, although the respective trials will be independent of each other. Environmental proceedings can also involve judicial review of administrative actions and constitutional disputes.
Most litigation in the context of climate change relates to pollution incidents and objections filed by individuals or non-governmental organisations (NGOs) to developments taking place in certain pristine areas within Malta and Gozo.
One landmark case in the context of juridical interest in environmental matters is The Ramblers Association of Malta v Malta Environment and Planning Authority (Court of Appeal, 27 May 2017, Court Application 228/2010). In this lawsuit, NGO The Ramblers Association of Malta brought an action against the Malta Environment and Planning Authority (MEPA), requesting the court to order the annulment of a permit granted by MEPA allowing a development to take place on a pristine site which the NGO argued deserved protection. Although the plaintiff was ultimately deemed to have the requisite juridical interest to file the suit, the case highlights the difficulties that NGOs and other non-profit or voluntary organisations may face in Malta when instituting an action in circumstances where they cannot demonstrate an immediate, real, personal and direct interest in the action.
11.2 What issues do such disputes involve?
Due to Malta's size, few environmental actions are filed before the courts and it is thus difficult to give an accurate assessment of the kinds of issues that are raised before the courts.
11.3 What defences and indemnities are available, both for corporates and for individuals?
In civil matters, responsibility always lies with the party that is at fault. If the company that committed the environmental wrong is at fault, liability cannot be attributed to a director or officer who was simply carrying out ‘superior orders'. If a director or officer personally is at fault (eg, by disobeying orders or carrying out orders incompetently), he or she will be liable (Section 1038 of the Civil Code). The company will be liable if:
- it employed an incompetent person (culpa in eligendo) (Section 1037 of the Civil Code); or
- it failed to assign or oversee tasks competently (culpa in vigilando).
Directors and officers can obtain insurance to cover the risk of liability being attributed to them on account of their negligence or incompetence. In civil actions, for example, the defence that the damage was not a direct consequence of the breach (lack of causal nexus) or that no law, regulation or permit was breached will be available. With regard to responsibility arising under the Environmental Damages Regulations, Malta opted, in transposing the directive, to include both the so-called ‘permit defence' and the ‘state-of-the art defence' in the local regulatory framework.
11.4 How are environmental disputes resolved?
The Maltese authorities – and especially the environmental regulator – will often seek to remedy the dispute prior to instituting proceedings.
11.5 Have there been any recent cases of note?
At this point in time and to our knowledge, there are no cases of note to report on.
12 Trends and predictions
12.1 How would you describe the current environment and climate change landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
The Environment & Resource Authority (ERA) is in the process of preparing the National Strategy for the Environment for 2050 (NSE 2050), which will establish the policy framework for plans, policies and programmes under the Environment Protection Act and all other legislation for the protection and sustainable management of the environment. The NSE 2050 will set out the project's long-term objectives, followed by targets and measures spanning 10-year cycles, with intermittent reviews and subsequent updates as necessary.
NSE 2050 further recognises the associated environmental, social and economic wellbeing aspects in line with the Sustainable Development Strategy for 2050, which is currently being drafted by the Ministry within the Office of the Prime Minister. It also aims to facilitate strategic alignment across government entities in relation to environmental issues. Its structure is supported by:
- a robust policy framework that endorses environmental limits leading to improved quality of life;
- a strong political commitment to overall wellbeing, measured beyond gross domestic product; and
- a market that remains a priority and is directed towards environmental and social products and ethics.
13 Tips and traps
13.1 What are your top tips for smooth environmental and climate change compliance in your jurisdiction and what potential sticking points would you highlight?
One recommended tip is to approach the local environmental authorities before engaging in any activity that will have an impact on the environment. Proactive engagement with the authorities tends to send the right signals, especially if it is demonstrated to them that the purpose of the engagement is to ensure environmental compliance. Practice has shown that even informal exchanges with the authorities to discuss questions about projects or activities are very often constructive: they clarify intentions, create a spirit of collaboration and ultimately facilitate smooth environmental and climate change compliance. The reverse is equally true: a bullish or secretive approach should be avoided in favour of open and transparent interaction with the local authorities, who generally take a reasonable and fair approach within the confines of the law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.