Q&A: environmental regulation in Malta

Legislation

What are the main statutes and regulations relating to the environment?

Malta has a substantial body of environmental law, which is regulated primarily by the Environment Protection Act (EPA) (Chapter 549 of the Laws of Malta). The various aspects of environmental law are then regulated by the Act’s subsidiary legislation. Key regulations include:

• Environmental Impact Assessment Regulations (SL549.46);
• Prevention and Remedying of Environmental Damage Regulations (SL549.97);
• Waste Regulations (SL549.63);
• Water Policy Framework Regulations (SL549.100); and
• Flora, Fauna and Natural Habitats Protection Regulations (SL549.44).

Environmental law is heavily influenced by EU law and policy.

Is there a system of integrated control of pollution?

Malta has a system of integrated pollution prevention and control established primarily through the Industrial Emissions (Integrated Pollution Prevention and Control (IPPC)) Regulations (SL549.77), which aim to prevent, reduce and control pollution from various point sources and set out principles for the permitting and control of activities of industrial installations, based on an integrated approach and the best available techniques (BAT). 

In terms of the Regulations, installations that release emissions to land, water and air are subject to a prior review by the competent authority and must obtain a permit fin order to operate. These regulated facilities include stationary installations in which the following activities are carried out: energy, waste management, production and processing of metals, chemicals and minerals, paper productions and slaughterhouses, among others. 

To obtain a permit under the IPPC regime, industrial activities will need to comply with BAT. The permit would generally contain, among other details, a description of the installation, materials and energy used and generated, the sources and nature of foreseeable emissions as well as the measures planned to monitor such emissions. It additionally establishes emission limit values for polluting substances and imposes monitoring obligations on the operator, who must provide certain data to the authority, at regular intervals, enabling it to check the operator’s compliance with emission levels and other permit conditions. Permit conditions are set on the basis of BATs, ensuring that the installation is operated in accordance with the most advanced and proven techniques for the prevention and control of industrial emissions and the wider environmental impact.

What are the main characteristics of the rules applicable to soil pollution?

Whilst there is no specific regulation governing soil pollution, this is managed through various avenues, including the environmental impact assessment regime, and environmental permitting. With respect to liability for soil pollution, this is covered by the Prevention and Remedying of Environmental Damage Regulations (SL549.97), which address all types of environmental damage, including damage to land, and the Crimes Against the Environment Act (Chapter 522 of the laws of Malta) under which it is an offence to discharge or introduce harmful substances into the  soil which are likely to cause substantial damage to the quality of the soil. 

What types of waste are regulated and how?

Waste is primarily governed by the EPA, the Waste Regulations (SL549.63) and the Waste Management (Activity Registration) Regulations (SL549.45). Additional regulations are also in place to manage to specific areas of waste management in Malta. 

Waste is defined, broadly, under the EPA as ‘any thing, substance or object which the holder discards or intends to discard, or is required to keep in order to discard…’, and requires the competent authorities to ensure that waste is managed in a sustainable manner and that its reduction, proper use, reuse and recovery is promoted. Waste is also defined in the Waste Regulations  as ‘any substance or object which the holder discards or intends or is required to discard’. 

The Waste Regulations qualify the definition in that by-products, which are substances or objects resulting from production processes, are not regarded as waste, as long as the following conditions are met:

• further use of the substance or object is certain;
• the substance or object can be used directly without any further processing other than normal industrial practice;
• the substance or object is produced as an integral part of a production process; and
• further use is lawful, in other words, the substance or object fulfils all relevant product, environment and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts.

Classification of waste in Malta is largely based on whether it contains hazardous properties that are listed in the Waste Framework Directive (2008/98/EC) and that establishes a code for each type of waste. Hazardous wastes are subject to a strict control regime covering their entire life cycle, from generation to final disposal or recovery. The Waste Regulations include specific obligations concerning labeling and packaging of hazardous waste, record keeping as well as monitoring and control procedures on transfers of such waste within Malta.

The bulk of waste legislation concerns waste management. Under the Waste Regulations (SL549.63) permits from the competent authority are required by any person wishing to carry out any waste management activity, and in some cases by producers of waste intending to store or dispose of, on site, the waste it produces.

The various waste streams have specific legal regimes. For instance, packaging waste is dealt with in the Waste Management (Packaging and Packaging Waste) Regulations (SL549.43), which oblige producers of packaging waste to collect, recover and recycle such waste. Regimes are also in place to manage waste electrical and electronic equipment, waste batteries, construction and demolition waste, end-of-life vehicles and bio-waste. 

Waste legislation and policy imposes a general requirement to comply with the waste hierarchy, which is:

• prevention;
• preparing for re-use;
• recycling;
• other recovery; and
• disposal.

The Waste Regulations impose a duty of care on any person producing and/or handling waste (with the exception of domestic waste), to ensure that no waste escapes such person's control and that waste is manages by persons in possession of the relevant permits. 

What are the main features of the rules governing air emissions?

Air emissions are governed primarily by the Industrial Emissions (IPPC) Regulations and the Ambient Air Quality Regulations (SL549.59). The latter impose certain obligations on the competent authority with respect to implementation, monitoring and control. More specifically, the authority must, among other things, establish limit values and alert thresholds for ambient air, carry out assessments of ambient air quality, and implement measures in zones where levels are higher than the limit value.

Air discharges from regulated industrial activities are managed and controlled through the IPPC Regulations, which impose an obligation on operators of these installations to obtain a permit and to operate the installation in accordance with best available techniques.

The Air Quality Plan for the Maltese Islands 2010 contains high level policy guidance for reducing the daily average of PM10 concentrations in ambient air, by focusing on measures to reduce these concentrations from major contributors, such as road transport. 

How are fresh water and seawater, and their associated land, protected?

Fresh water is protected under the Protection of Groundwater against Pollution and Deterioration Regulations (SL549.53) and the Pollution Caused by Certain Dangerous Substances Discharged into the Aquatic Environment Regulations (SL549.10). These Regulations are both preventative and remedial in nature and essentially tackle pollution of groundwater from point as well as diffuse sources as they regulate direct and indirect discharges. Additionally, pollution caused to groundwater by nitrates from agricultural sources is also regulated under Maltese law. Contamination of fresh water sources by any person will give rise to criminal liability.

Extraction, whether for private or public use, is subject to strict controls and permitting requirements by the competent authority. The filling of pools is also regulated and must be done with fresh water to avoid harmful leakage of seawater into the groundwater.

The Water Policy Framework Regulations (SL549.100) establish an action plan for protecting inland waters, coastal waters and groundwater. These regulations attempt to adopt a holistic approach with respect to the entire field of water management. Essentially, the aim is to promote sustainable water use based on the long-term protection of available water resources; and to enhance the protection and improvement of the aquatic environment, through specific measures for the progressive reduction and phasing out of discharges, emissions and losses of hazardous substances.

What are the main features of the rules protecting natural spaces and landscapes?

Over 20 per cent of Malta’s land area has protection status under the EU’s Birds and Habitats Directives. Moreover, several sites have been designated as special areas of conservation under the Flora, Fauna and Natural Habitats Protection Regulations (SL 549.44) and as special protection areas under the Conservation of Wild Birds Regulations (SL 549.42). Among these protected sites are the woodlands in Buskett and Comino, which have also been designated by the European Commission as sites of Community importance. These protected areas form part of the coherent European ecological network of special areas of conservation established under Natura 2000. Generally, within these protected areas, no operations or activities may be carried out unless consent has been given by the competent authority; and before granting such consent, the Authority will, where it appears that such activity is likely to have a significant effect on the protected site, carry out, or require the applicant to carry out, an environmental assessment of the implications of the activity on the site.

Additionally, the Environment and Resources Authority (ERA) is empowered, under the EPA, to issue conservation orders to protect areas which are deemed important from a landscape perspective. Once an area is ‘protected’ for conservation, the ERA may take such measures as it deems necessary to protect the status of the area and prevent any deterioration thereof.

What are the main features of the rules protecting flora and fauna species?

The overall protection of species is governed by the Flora, Fauna and Natural Habitats Protection Regulations (SL549.44). The Regulations prohibit persons from, among other things, disturbing, capturing, killing, destroying, transporting and selling protected species without first obtaining a permit. They also contemplate measures to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest, taking account of the economic, social and cultural requirements and regional and local characteristics. Moreover, the Regulations impose obligations on the competent authority in terms of developing national strategies and other action plans and programmes aimed at the conservation and sustainable use of biodiversity.

The Schedules to the Regulations identify the habitats and species which are given protection status, specifying the level of protection. Natural habitats whose conservation requires protection are designated as Special Areas of Conservation, and this includes areas of both national and international importance. Similarly, species of animals and plants of both Community and national interest are also designated as Special Areas of Conservation. The Regulations also identify animal and plant species of Community and national interest that are in need of strict protection.

Other legislation governing the protection of flora and fauna include the Conservation of Wild Birds Regulations (SL549.42), the Trade in Species of Fauna and Flora Regulations (SL549.38) and the Trees and Woodlands Protection Regulations (SL549.64). In addition, there are various other pieces of legislation under Maltese law regulating the protection of a specific species or a defined protected area.

In the marine environment, flora and fauna are afforded protection under additional legislation, including the Marine Mammals Protection Regulations (SL549.35) and the Marine Policy Framework Regulations (SL549.35), which require Malta to take the necessary measures to achieve and maintain a 'good environmental status' in the marine environment.

Additionally, Malta’s marine Natura 2000 network encompasses 18 sites and covers over 4100 km², equivalent to more than 35 per cent of Malta’s Fisheries Management Zone, and was established over a period of 10 years, for the conservation of important habitats and species. The network comprises Special Areas of Conservation, designated for the protection of marine habitats and species pursuant to the EU Habitats Directive, and Special Protected Areas designated for the protection of seabirds under the EU Birds Directive. In 2018, the network was extended, leading to a further three inshore and five offshore areas being proposed for the protection of cave and reef habitats. 

What are the main features of the rules governing noise, odours and vibrations?

Environmental noise is mainly regulated under the Assessment and Management of Environmental Noise Regulations (SL549.37) which define environmental noise as unwanted or harmful outdoor sound created by human activities, including noise emitted by means of transport, road traffic, rail traffic and air traffic, and from sites of industrial activity. The Regulations aim to define a common approach intended to avoid, prevent or reduce on a prioritised basis the harmful effects, including annoyance, due to exposure to environmental noise. To this end, the Regulations seek to:

• determine the exposure to environmental noise through noise mapping;
• ensure that information on environmental noise and its effects are made available to the public; and
• adopt action plans based upon noise-mapping results, with a view to preventing and reducing environmental noise where necessary and particularly where exposure levels can induce harmful effects on human health and preserving environmental noise quality where it is good.

Implementation of the regulations is the responsibility of the ERA.

Vibrations are, in effect, regulated under the Industrial Emissions (Framework) Regulations (SL549.76) and are included in the definitions of ‘pollution’ and ‘emissions’; and odours are controlled by the competent authorities through general permitting requirements including trading licences and environmental permits.

Is there a general regime on liability for environmental damage?

Liability for environmental damage may be imposed through various regimes. Liability may civil, administrative or criminal. Generally, in terms of the EPA, it is an offence to carry out any activity or operation affecting the environment without a permit. Likewise, failure to comply with the conditions of a permit is also an offence. However, in cases of breach, the competent authority may choose to take administrative action such as the issuance fines and enforcement notices.

Administrative liability is mainly governed by the Prevention and Remedying of Environmental Damage Regulations (SL549.97), which establish a framework of environmental liability based on the polluter pays principle, to prevent and remedy environmental damage. Environmental damage is defined as damage to protected species and natural habitats, damage to water and damage to land. 

The Regulations impose strict liability on operators for environmental damage resulting from any of the occupational activities listed in Schedule III. Operators carrying out other occupational activities than those listed in Schedule III are liable for fault-based damage to protected species or natural habitats. However, establishing a causal link between the activity and the damage is always required. The Regulations impose the following obligations on operators responsible for the damage (or immediate threat thereof):

• prevention in case of an imminent threat of damage;
• immediate limitation measures; and
• remediation measures, including primary, complementary and compensatory remediation.

The Crimes Against the Environment Act imposes criminal liability on persons carrying out activities that breach specific environmental legislation. The Act criminalises activities that cause significant harm or risk to the environment and human health, including:

• the illegal emission or discharge of substances into air, water or soil;
• the illegal trade in wildlife;
• the illegal trade in ozone-depleting substances; and
• the illegal shipment or dumping of waste.

General principles of civil law may also be relied upon in instances of environmental damage. Persons may be held liable in tort for damages caused towards a third party who actually suffers a related loss. Under the Maltese legal system, compensation can be sought for material (or real) damage or loss, including loss of future profits, by the person who suffers the harm. 

Is there any type of environmental tax?

Malta has introduced a number of fiscal instruments, mainly environmental taxes, to discourage the use of environmentally damaging activities such as the burning of fossil fuels, while promoting other alternative and more efficient energy sources. Overall, these taxes can be grouped into three categories: energy, transportation, and pollution and resources. In terms of energy, the taxes comprise:

• carbon taxes and taxes on energy products for transportation such as diesel and petrol;
• taxes on energy products for stationary use (coal, oil products, electricity, natural gas); and
• taxes on greenhouse gases.

With respect to transport, taxes comprise road usage tax and taxes on the import, sale and registration of motor vehicles. Policies allowing favourable tax rates for lower emission levels have been implemented. The rate of registration tax levied varies depending on the carbon dioxide emission value and age of the vehicle, among other contributing factors. The Annual Circulation Tax also takes into account the age of the vehicle and specifications such as vehicle weight or engine capacity, depending on the type of vehicle in consideration. 

To incentivise cleaner modes of transport, tax rebates exist for purchases of bicycles and electronic bicycles. Additionally, plug-in hybrid vehicles with an electric range of not less than 50km will be exempt from the payment of registration tax. The annual circulation licence fee shall remain free of charge for the first five years for the same category of vehicles.

Are there any notable environmental reporting requirements (eg, regarding emissions, energy consumption or related environmental, social and governance (ESG) reporting obligations)?

Sectors of industry covered by the Emissions Trading System (ETS) are subject to reporting obligations. Under the ETS regime, installation and aircraft operators must submit a monitoring plan describing the measures by which annual emissions from the installation will be monitored and reported. The monitoring plan must be approved by the national competent authority and will serve as the accepted methodology for monitoring in that installation. On an annual basis, the operator of the installation must submit verified emissions reports to the competent authority. The reports must first be verified by a competent, independent accredited verifier before being submitted to the competent authority. A verification report issued by the verifier must accompany the emissions report when this is submitted to the authority.

ESG reporting is not yet a regulatory requirement under Maltese law. However, this will change with the adoption of the Corporate Sustainability Reporting Directive (CSRD) by the EU, which will apply to all member states, including Malta. The CSRD will come into effect in the 2023 financial year for large companies, while SMEs will have until the 2026 financial year to comply.

The EU Commission will set in place compulsory reporting requirements for large companies, of which there are approximately 50,000 in Europe. A large company is defined as fulfilling two of these three criteria: €40 million in net turnover, €20 million in assets or 250 or more employees. Separate, proportionate standards will be introduced for listed SMEs, which will have to report in a like manner.

It must be noted, however, that at present, there is a non-financial reporting obligation on large public-interest companies with more than 500 employees. This obligation stems from the Non-Financial Reporting Directive (Directive 2014/95/EU), which was transposed into Maltese law through an amendment to the Maltese Companies Act (Chapter 386 of the laws of Malta).

How would you describe the general government policy for environmental issues? How are environmental policy objectives influencing the legislative agenda?

National environmental policy covers all environmental sectors and natural resources, including air, waste, water, land, soil, climate, biodiversity, coastal and marine areas, noise, chemicals and mineral resources. It covers, but is not restricted to, obligations stemming from the European Union environment acquis. The Environment and Resources Authority has formulated and implemented several policies and action plans to serve as a framework to guide environmental protection initiatives and to support the various legislation.

Hazardous activities and substances

Are there specific rules governing hazardous activities?

The primary legislation governing hazardous activities is the Control of Major Accident Hazards Regulations (SL424.19), which implements Directive 2012/18/EU (COMAH). The COMAH regime regulates the use of dangerous substances rather than specific activities, and primarily aims to regulate those sites that store, produce or make use of dangerous substances in sufficient quantities and that could constitute a serious health, safety or environmental risk. It predominantly applies to chemical and petro-chemical-related activities, and fuel storage and distribution.

There are no licensing requirements for operators carrying out activities covered by these Regulations; however, operators are required to notify the competent authority of the activities carried out in the establishment, specifying the dangerous substances present and the quantities of each substance. Operators are also required to describe the immediate environment of the establishment and factors likely to cause a major accident or to aggravate the consequences thereof including, where available, details of neighbouring establishments. 

Management of hazardous waste, as well as the transport of hazardous substances, are governed by specific regimes.

What are the main features of the rules governing hazardous products and substances?

With regard to hazardous products and substances, regulations are aimed at protecting the environment and creating common standards to protect consumers, ensuring the free circulation of goods among member states without damage being caused to the environment or human health. In fact, the Dangerous Substance Regulations (SL427.14) were issued under the Product Safety Act (Chapter 427). The Regulations define substances as chemical elements and their compounds in the natural state or obtained by any production process. Furthermore, the Regulations list a number of substances which are considered to be ‘dangerous’, such as explosive and extremely and highly flammable substances and preparations. The main obligations on the importer and producer under these Regulations relate to labelling and packaging.

Maltese legislation concerning hazardous products and packages is mainly made up of EU Regulations, namely Regulation (EC) No. 1272/2008 on the classification, labelling and packaging of substances and mixtures (as amended by Commission Regulation (EU) 2018/1480 for the purpose of its adaptation to technical and scientific progress); and Regulation (EC) No. 1907/2006 on the registration, evaluation, authorisation and restriction of chemicals (REACH). The latter is designed to ensure a high level of protection of human health and the environment from risks that can be posed by chemicals. REACH makes the industry responsible for assessing and managing the risks posed by chemicals and providing appropriate safety information to their users.

Other potentially dangerous and hazardous substances, such as pesticides, explosives and fertilisers, are regulated under Maltese law by substance-specific legislation.

What are the regulatory requirements regarding the prevention of industrial accidents?

Health and Safety legislation sets out general duties on employers to safeguard the heath and safety of employees in the workplace. Among other duties, employers are required to assess and review work-related risks faced by employees, and put in place preventive and protective measures. Additional health and safety regimes exist for specific activities such as underground mineral extraction and construction activity.

The COMAH regime also applies to prevent major accidents in the workplace. Operators of upper-tier establishments are required to prepare safety reports, establish safety management systems and an emergency plans. The competent authorities also have various obligations directly related to COMAH establishments, such as inspections of the installation and review of the safety report or major accident prevention policy, and obligations relating to emergency planning and land use planning.

Environmental aspects in transactions and public procurement

What are the main environmental aspects to consider in M&A transactions?

The main environmental aspect in M&A transactions would be environmental liability. Where a company acquires shares in another company that would have committed an environmental wrongdoing prior to the acquisition, the acquiring company (as shareholder) would not, except in very limited circumstances, be liable unless it had also participated in such wrongdoing. The purchaser of the shares does not itself take on the environmental liability of the company.

Consideration should also be had to permitting issues. In a case where a company operates under an environmental permit that risks being revoked by the competent authority due to non-compliance with environmental regulations, shareholders may not want to acquire shares in such company. For this reason, investigations and due diligence exercises should always be carried out to ensure that any environmental-related issues are disclosed prior to the acquisition.

What are the main environmental aspects to consider in other transactions?

In real estate transactions, issues of possible soil pollution and other environmental considerations would certainly be of interest to a new owner because, although such owner would not be held liable for environmental damage caused prior to the acquisition, the competent authorities could nevertheless, in certain cases, impound the property. In transactions regarding financing, environmental due diligence will in general be similar to that of an M&A transaction.

Is environmental protection taken into consideration by public procurement regulations?

The Public Procurement Regulations (SL 601.03) do not formulate any absolute environmental criteria. They do, however, provide that the conditions governing the performance of a contract may concern environmental considerations. The Regulations further provide that contracting authorities are to establish technical specifications for public contracts, such specifications may include environmental characteristics. When laying down such environmental characteristics in terms of performance or functional requirements, contracting authorities may use the detailed specifications or parts thereof as defined by European, national or multi-national eco-labels or any other eco-label. The contracting authority may be required by the Director of Contracts to provide information to the tenderer or candidate as to its obligations, including those relating to environmental protection that shall be applicable to the works or services executed during the performance of the contract.

Environmental assessment

Which types of activities are subject to environmental assessment?

The main types of environmental assessment insofar as developments and projects are concerned are the environmental impact assessment (EIA) and the appropriate assessment (AA). These assessments are not licences in themselves, but they do form part of the development permitting process.

The Environmental Impact Assessment Regulations (SL549.46) cover large-scale projects (or activities) likely to have significant impact on the environment. These activities are listed in Schedule I of the Regulations and include construction of roads and motorways, airports, power plants and wastewater treatment plants, among others. Projects of a smaller scale may be subject to an AA if the site of the development falls within, or is relatively close to, a Natura 2000 or other protected site or area, and is likely to have an adverse effect on the protected site.

Additionally, governmental plans and programmes that are likely to have a significant effect on the environment are subject to a Strategic Environmental Assessment (SEA) in accordance with the Strategic Environmental Assessment Regulations (SL549.61).

What are the main steps of the environmental assessment process?

Before consent is granted for a development, a screening process must take place to determine whether the development qualifies for mandatory assessments, such as the AA and the EIA. If an AA is required, the case is processed in accordance with the Flora, Fauna and Natural Habitats Protection Regulations (SL549.44), and if an EIA is required, in accordance with the EIA Regulations (SL549.46). It is important to note that these two assessments are not exclusive of each other and in some cases both may be required.

An AA is required where the proposed development is not directly connected with or necessary to the management of the protected site, and where it appears to the ERA that such activity is likely to have a significant effect on the protected site. The information gathered for this assessment will enable the Authority to make an informed decision as to whether or not to grant development consent. Developments which are relatively complex will usually require detailed assessments. However, it is possible that even with detailed assessments the impacts remain unclear and therefore cannot be excluded. In this case, a full-blown study, similar to an EIA, would be required. With regard to the actual content of the AA, this would depend very much on the complexity and nature of the activities to be carried out and the location or site of the activities. At the very least, the assessment would have to include a description of the project and the land and marine environments affected by the activities, the elements of the project which are likely to have environmental impacts, the potential impacts on the habitats and or species listed in the Schedules to SL549.44 and mitigation measures. Once the relevant information has been gathered and the report is submitted to the ERA, the adverse effects on the integrity of the site have to be assessed by the Authority. If the impact is considered insignificant or likely to be significant or unclear but can be rendered insignificant through mitigation measures, the proposed activity can proceed. If, on the other hand, the mitigation measures are insufficient such that significant impacts would remain, then the proposal may be refused.

With regard to EIAs, all developments listed in Schedule I of the EIA Regulations require either a full EIA or screening in accordance with Schedule III by the ERA, depending on whether they fall within Category I or II. Developments not listed in the Schedule would not require an EIA or screening unless in the opinion of the ERA they are likely to have significant impacts on the environment.

Where the ERA indicates that a project or development falls within Schedule I, the permit application must be accompanied by a Project Description Statement (PDS) in accordance with Schedule II. This provides the ERA with the necessary information to conduct a screening of the proposed development (not falling in Category I – as the latter automatically require a full EIA) and to decide whether an EIA is required. The decision is communicated to the applicant within 30 calendar days and is made available to the public. Following screening, if a proposed development requires an EIA, project-specific Terms of Reference (TOR) are formulated by the ERA following a 30-day consultation period with government agencies, NGOs, affected local councils and the public. These TORs will determine the content of the EIA Report. An EIA coordinator and independent consultants are then appointed by the developer to conduct the studies required and to assess the likely impacts of the environmental parameters established in the TORs. The EIA findings are compiled into an EIA report. Once the report is complete, the developer must publish a notice in local newspapers, informing the public that an EIA report has been submitted to the ERA and is available for public consultation. A digital copy of the report is made available on the ERA’s website for a 30-day consultation period. Concurrently, consultation is undertaken with government entities, local councils and NGOs. For Category I projects (those automatically requiring a full EIA), a public hearing is organised at the cost of the developer within or after the consultation period. All comments, queries and requests made during the consultation period and public hearing are referred to the EIA coordinator for a reply, and the EIA report may be revised accordingly. The ERA will examine the final EIA report and prepare its final assessment thereon, which will have a bearing on the decision on whether to approve the development permit or not. Should it be approved, then specific conditions and post-permit monitoring will apply.

Regulatory authorities

Which authorities are responsible for the environment and what is the scope of each regulator’s authority?

The Environment and Resources Authority (ERA) is the main body responsible for ensuring compliance with environmental legislation. The ERA’s primary functions are to:

• formulate and implement policies relating to the protection and management of the environment, and the sustainable management of natural resources;
• permit, assess, investigate, audit, monitor and take action on any activity, intervention, project, operation or land use that may have an effect on the environment; and
• carry out, review or request others to carry out environmental assessments, environmental audits and environmental monitoring of activities and works having an impact on the environment.

The ERA has the power to revoke or modify any authorisation or permit granted where environmental damage or risk is concerned. Additionally, the ERA has the power to carry out investigations and inspections. The ERA may issue stop notices and compliance orders and may impose administrative fines.

What are the typical steps in an investigation?

Regulatory authorities may monitor and investigate any issues and complaints brought to their attention. In certain cases, the relevant regulator or competent authority will have the power to take any action that it may deem necessary and enforce it in accordance with relevant laws. When an investigation is being carried out, apart from assessing the complaint and the facts of the case, the authorities may also carry out on-site inspections, collect documentation and evidence, carry out inquiries and invite any interested parties to make any submissions. Interim measures may also be evoked to safeguard rights.

What is the procedure for making administrative decisions?

Generally, when an administrative decision is to be made, consultation, oral or written, will occur, after which parties are invited to make submissions. The procedures for making such decisions are usually subject to any relevant policies and guidelines that may be issued by authorities.

What are the sanctions and remedies that may be imposed by the regulator for violations?

Violations may amount to offences, rendering the offender criminally liable. In such cases, offenders may face imprisonment, revocation of a licence or permit, or a fine. Administrative penalties may also be imposed, as well as warnings or substantial fines, as the situation may be. The range of sanctions and remedies for environmental breaches is broad and includes:

• suspensions or revocation of permits or modification of permit conditions ;
• enforcement and stop notices, and compliance orders;
• financial guarantees to secure remediation in case of environmental damage or loss; and
• step in powers for competent authorities to carry out remedial works.

To what extent may decisions of the regulators be appealed, and to whom?

Decisions of public authorities are generally subject to appeal. Decisions as to environment assessments, access to environmental information and the prevention and remedying of environmental damage taken by the ERA, for instance, may be appealed before the Environment and Planning Review Tribunal. From such decisions, further, albeit limited, recourse may be had to the Court of Appeal (Inferior Jurisdiction). It is also possible to have an administrative action reviewed judicially when claimed to be ultra vires.

Recourse may also be had to the ombudsman, which, however, may only result in a recommendation in one’s favour.

Judicial proceedings

Are environmental law proceedings in court civil, criminal or both?

Court proceedings concerning environmental law matters may be civil, administrative or criminal, depending on the nature and type of claim. Proceedings must be brought within prescribed time-frames. 

What are the powers of courts in relation to infringements of environmental law?

At the request of an appellant, which must be made simultaneously with the appeal application, the Environment and Planning Review Tribunal (Tribunal) may suspend any development from being carried out pending its decision. Such suspension will be made under terms, conditions and any other measures the Tribunal may deem fit.

The court, in criminal proceedings, is empowered to order imprisonment or may impose fines and penalties. In civil proceedings, it may award damages or order that any wrongful action be remedied.

Are civil claims allowed regarding infringements of environmental law?

Non-contractual claims would generally be brought under the basic principles of tort found in the Civil Code, while contractual claims could be brought on the basis of breach of contract.

What defences or indemnities are available?

The general principle at law is that the person liable for any wrongdoing must answer to any damage caused up to that degree. Therefore, all defences provided generally by law shall apply. The statute of limitations in the Civil Code can be used as a defence to an action for damages suffered due to a wrongful act carried out in relation to the environment. Such a claim would be time-barred after a period of two years, which starts to run from the time the wrongful act is committed. In certain cases, set out in the Civil Code, several and joint liability applies, for instance, where two or more persons, acting maliciously, have caused environmental damage.

Defences are also available under the Prevention and Remedying of Environmental Damage Regulations. An Operator shall not be held financially liable if he or she proves that the damage was caused by a third party (provided appropriate safety measures were in place), or if he or she proves that the damage resulted from compliance with an order or instruction from a public authority. In addition, the following defences may be invoked in cases where environmental damage results from an event where the operator acted fully in accordance with the conditions of the authorisation; or one that was not considered likely to cause environmental damage according to the state of scientific and technical knowledge at the time the activity took place.

Are there specific defences in the case of directors’ or officers’ liability?

In cases of civil liability for damage committed by a company or corporate entity, the director or any other officer of the company cannot be held responsible for such damage.

In terms of criminal liability, directors and similar officers may be held personally liable for the offence. However, in such cases, a defence is that the offence was carried out without the director’s or officer’s knowledge, and that all due diligence had been exercised to prevent the commission of the offence.

What is the appeal process from trials?

Civil actions and criminal offences can be appealed before the relevant court of appeal. The decision of the latter would be final. Where there is a claim for a breach of a constitutional right, the court may refer the matter to the civil court, having constitutional jurisdiction, to be decided. An appeal from this decision may be brought before the constitutional court.

International treaties and institutions

Is your country a contracting state to any international environmental treaties, or similar agreements?

Malta is a signatory to various international environmental treaties, primarily UN conventions, both directly and via the EU. Among the most notable are:

• the International Convention on Civil Liability for Oil Pollution Damage;
• the UN Convention on the Law of the Sea;
• the Convention on the Prevention of Marine Pollution by Dumping of Wastes at Sea and other Matter;
• the Geneva Convention on Long-Range Transboundary Air Pollution;
• 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.

To what extent is regulatory policy affected by these treaties?

These conventions influence both Maltese law and policy, so much so that, when ratified, such international treaties or conventions become part of Maltese law.

Update and trends

Are there any emerging trends or hot topics in environment law in your jurisdiction?

Environmental law continues to change and evolve as new regulations and policies are adopted and subsequently implemented. At present, the Environment and Resources Authority is formulating the National Strategy for the Environment 2050 (NSE), which seeks to create an overarching framework for Malta’s existing environmental strategies and plans. The NSE is built on eight key pillars, referred to as strategic goals. These address traditional environmental facets complemented with pillars that focus on key environmental challenges that Malta faces, while also laying down the road map to enable and empower changes necessary to support the required green transition.

What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?

Law stated date

Give the date on which the above content is accurate.