On 12 June 2020, Parliament passed a law that had been brewing for a long time, ACT XXIX of 2020, which is a law intended at amending the Civil Code, Cap. 16 and the Criminal Code, Cap. 9, in order to make provision for immunity from liability in cases of rescue or attempted rescue. This is a law present in other jurisdictions, and is usually known as the Good Samaritan Law.

As expected, this law is inspired from the biblical parable known to all. Good Samaritan laws have their basis on the idea that consensus agreement favors limited liability for those who voluntarily perform care and rescue in emergency situations.

This new law introduced article 226C to the Criminal Code, Cap 9 of the Laws of Malta, which states:

“Notwithstanding the provisions of articles 225, 226 and 226A, a person will notbe criminally liable if, confronted with a present or imminent danger to another person,he performs an act necessary to ensure the safety of that person, whether or not the act actually ensures the safety of the person: Provided that this article shall not apply where the means used are disproportionate to the seriousness of the threat or where the act is performed with malice or gross negligence.”

This law is somewhat replicated in the Civil Code, through the introduction of article 1033A, which provides that any person who causes damages in the performance of a rescue or in the course of assisting another person whose life or personal safety is in clear danger,shall not be liable for any damage caused in the course of the rescue or of giving assistance tothe person who he rescued or assisted or tried to rescue or assist, to that person’s property or to third parties or third party property, unless the acts are performed with malice or gross negligence.

This law is now in force.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.‘

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Governments often need to purchase services and products from the private market. This cannot be done freely and haphazardly – there are rules that ensure transparency and cost-effective purchasing. Many of these rules are not a local creation, but are transposed from EU rules and monitored by the EU.

One of the ways the governments evaluates tenders is through the criterion of the best price-quality ratio, better known as BPQR.

This criterion, replacing the earlier MEAT (most economically advantageous tender) ensures that the contracting authority reach a harmonious balance between quality and price. The idea is that when a purchasing need arises, those entrusted with adjudicating offers (‘tenders’) have at their disposal a proper standard and system to be used in order to fairly assess each offer and decide in a transparent manner.

As well explained in the PUBLIC PROCUREMENT GUIDANCE FOR PRACTITIONERS (February 2018), a document issued by the European Commission:

“The purpose of the best price-quality ratio is to identify the tender that offers the best value for money. It must be assessed on the basis of criteria linked to the subject matter of the public contract in question. These criteria may include qualitative, environmental and/or social aspects.”

It was stated in the Procurement Policy Note #25 Award criteria with respect to Security, Cleaning, Clerical and Care Worker Services Contracts (Date issued: 25th April 2016), that:

“Best Price Quality Ratio (BPQR): this is the award criteria most commonly known, to date, as the Most Economically Advantageous Tender (MEAT). Through these criteria, the Contract Authority may establish the best value for money by optimizing a combination between the various cost-related and non-cost related criteria that together meet the Contracting Authority’s requirements.”

The purpose of the BPQR is to identify the tender that offers best value-for money. The concept of value-for-money recognises that goods, works and services are not homogeneous and that they differ in quality, durability, longevity, availability and other terms of sale. The point of seeking value-for-money is that Contracting Authorities should aim to procure the optimum combination of features that satisfy their needs. Some tenders may given a greater weighting to price, and others may give a larger importance to quality. So it is not rare that a tender is adjudicated on the basis of a point system based on a number of criteria (or check marks), which are then weighted according to the percentages established from the very beginning. For instance, the points awarded for the price would be then given a 60% weighting whereas the technical offer would be weighted down to 40%. This is done for all offers, and automatically, a ‘recommended bidder’ emerges.

There are many ways how to operate a BPQR Tender, and this is one example for illustration purposes where the technical score has been given a weighting of 40% and the price offered has being given a 60% weighting.

In this example, one can see that despite the fact that the tender would have given prioritization to the price (through its higher weighting), Tenderer A’s offer was not sufficiently cheaper to justify the lower quality offered. Despite Tenderer B having a slightly higher price, he still had enough superior quality to edge Tenderer A’s cheaper offer.

This system is considered better than the ‘lowest-price’ criterion since ideally, a government contract would not be a mere reverse auction with no regard for the quality of the goods or services. That would cause ‘a race to the bottom’, and inevitably, more cost in the long run. Conversely, adjudication on the sole basis of quality without regard to the price can be a costly affair, as well as an avenue for abuse.

The Best Price-Quality Ratio is a happy medium which guarantees objectivity and transparency.

The Public Contracts Review Board (PCRB) has said time and time again that (see Case 1390 – ROCA/A/T5/2019) “…the BPQR system of assessing a particular offer is the most objective method of filtering offers and arrives at the most advantageous one. It added in Case 1290 – CT2091/18 “…the “Best Price Quality Ratio” is the most objective form of assessment of an offer, in that, it suppresses the incidence of subjectivity, so that each offer is assessed on the quality of service or works being proposed by the Bidder, apart from the fact that each evaluator is individually allocating marks on established criteria, so that the median result is as fair and objective, as one would expect.”

Truth be told, contracting authority are still today given ample discretion in choosing which criterion to adopt in tender documents. And while BPQR is encouraged, so far there are no rules obliging a contracting authority to always choose this criterion over the others. But many are adopting the sensible stance to prioritise transparency and objectivity above everything else, and most tenders are today using the BPQR criterion.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.‘

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L.N. 141 of 2020 had clearly defined the legal and judicial terms which are to be suspended under the Primary Act, i.e. Chapter 609 of the Laws of Malta, entitled; the Legal and Other Time Periods (Suspension and Interruption) Act.

Prior to the introduction of L.N. 203 of 2020, which entered into force today, regulation 3(1)(c) of L.N. 141 of 2020 used to cater for the suspension of the running of any time period imposed or agreed upon in any private writing or public deed, including time periods set and agreed upon for the performance of obligations.

L.N. 203 of 2020 has however added the words “excluding a registered promise of sale agreement” immediately after the words “private writing” under regulation 3(1)(c). L.N. 203 of 2020 has also substituted the words “including a registered promise of sale agreement” with “excluding a registered promise of sale agreement” under regulation 3(4)(e).

L.N. 207 of 2020, on the other hand, amended L.N. 75 of 2020 in a similar manner. The words “and any expiration of any term in any promise of sale agreement duly registered in terms of law with the Commissioner of Revenue within the period established by law shall be suspended whilst the order for closure is in force without the need of any signatures or formal renewals by the parties” – as found in regulation 3(1) of L.N. 75 of 2020, shall be removed.

This implies that both L.N. 203 of 2020 and L.N. 207 of 2020 have the same effect, i.e. that the running of any time period imposed on registered promise of sale agreements shall no longer remain suspended.

Importantly however, both L.N. 203 of 2020 as well as L.N. 207 of 2020 included a new regulation to L.N. 141 of 2020 and L.N. 75 of 2020 respectively, to clarify that the suspension of any term as in force before their entry into force, in so far as it regards the performance of obligations relating to a registered promise of sale agreement and the expiration of a promise of sale duly registered shall remain in force for twenty days after the date of entry into force of L.N. 203 of 2020 and L.N. 207 of 2030, i.e. for twenty days after the 22nd of May 2020.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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During this ongoing pandemic, many people are at home for a long period, with a stockpile of food hid away in the fridge. It is only natural that during these hard times, people tend to struggle with emotional or stress-eating.

It is only natural that many people would then start increasing in weight.

Many products may offer a desirable solution for the overeater, for they purport to help one lose weight. But not all products are all alike – some may be good and beneficial, but others may actually be harmful. The question is: are there any standards which slimming products need to adhere to?

The short answer is, yes, there are.

The general rules applicable to consumables are also applicable to slimming products. Such standards are mainly established in order to ensure a high level of consumer protection, by giving the consumer the necessary information to make choices in full knowledge of the facts, as well as creating equal conditions of competition for the food industry.

Generally, the slimming products packaging would usually include a food packaging claim. These claims include health claims, nutrient content claims and function claims. Most common food packaging claims on slimming products include claims such as ‘fat-free’, ‘calorie-free’ and ‘high fiber’ or ‘excellent source of fiber’. There are many buzzwords used, and one must be careful.

It is of utmost importance that claims on food products are understood by the ordinary consumer. In fact, when marketing their slimming products, producers as well as marketers are legally bound take into account the laws and regulations relating to weight-loss and other claims of this nature, which directly result in an effect on one’s health.

The European Union provides for rules in this respect.

Regulation (EC) 1924/2006 defines a health claim as: “any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health”. This Regulation further defines a nutrition claims as: “any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to:

(a) the energy (calorific value) it
(i) provides;
(ii) provides at a reduced or increased rate; or
(iii) does not provide; and/or

(b) the nutrients or other substances it
(i) contains;
(ii) contains in reduced or increased proportions; or
(iii) does not contain.”

It is law that a nutrition or a health claim should not be made if it is inconsistent with generally accepted nutrition and health principles. Neither shall it be made if it encourages or condones excessive consumption of any food or if such claim discourages behaviour against good dietary practices.

Given the probable effect such slimming products may have on nutritional regime of the consumer, correct and sincere nutritional labelling on slimming products is imperative.

The labelling of slimming products shall include the available energy value, the content of proteins, carbohydrates and fat, the average quantity of each mineral and each vitamin, instructions for appropriate preparation, when necessary, and a statement as to the importance of following those instructions, and a statement on the importance of maintaining an adequate daily fluid intake.

However, it is worth mentioning that the labelling of slimming products shall not make any reference to the rate or amount of weight loss which may result from their use or to a reduction in the sense of hunger.

But what exactly is a health claim?

The European Union established a register which includes health-claims and the conditions applying to them. In simple terms, health claims maybe categorized in different groups:

(1) Claims referring to the role of a nutrient or other substance in growth, development and functions of the body. For example: “calcium is needed for the maintenance of normal bones”,
(2) Claims referring to psychological and behavioural functions. For example: “helps improve concentration”,
(3) Claims referring to slimming or weight control or a reduction in the sense of hunger or an increase in the sense of satiety or to the reduction of the available energy from the diet. For example: “keeps you feeling fuller for longer”,
(4) Claims about general, non-specific benefits of the nutrient or food for overall good health. For example: “good for you” or “healthy”,
(5) Claims referring to children’s development and health,
(6) Claims that state, suggest or imply that the consumption of a food significantly reduces a risk factor in the development of a human disease
(7) Prohibited claims.

Additionally nutrition claims are also included in the said register set up by the European Union. These claims usually includes statements such as ‘Low Fat’,‘Fat-Free’, ‘Low Sugars’ and ‘With No Added Sugars’.

For a nutrition claim to be used, the products must meet the specific conditions set out in the aforementioned European Union Regulation. As an example, for a product to claim that a food is low in fat, the product must contain no more than 3 g of fat per 100 g for solids or 1,5 g of fat per 100 ml for liquids (1,8 g of fat per 100 ml for semi-skimmed milk).

The reason behind these strict requirements is self-evident.

A food business operator making a nutrition or health claim must justify the use of the claim. In fact the competent authorities may request a food business operator or a person placing a product on the market to produce all relevant elements and data establishing compliance with this Regulation. Ultimately, it is an offence for a trader to deceive consumers through false claims. Leaving out important information when promoting products or services is also considered a misleading commercial practice, because consumers need information to make informed choices.

In Malta, all of the European Union Regulations have been transposed by means of the appropriate Subsidiary Legislation under the Food Safety Act – Chapter 449 of the Laws of Malta.

Any person found guilty of any offence against these standards shall be liable to a fine of not less than four hundred and sixty-five euro and eighty-seven cents (€465.87) and not exceeding four thousand and six hundred and fifty-eight euro and seventy-five cents (€4,658.75) or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.

On conviction for a subsequent offence, a person found guilty shall be liable to a fine of not less than one thousand and one hundred and sixty-four euro and sixty-nine cents (€1,164.69) and not exceeding eleven thousand and six hundred and forty-six euro and eighty-seven cents (€11,646.87) or to imprisonment for a term not exceeding four years or to both such fine and imprisonment.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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Today, the Government published Legal Notice 187 of 2020, introducing a scheme by Malta Enterprise to support those who want to develop a business activity, by subsidizing part of their rent.

Those interested may file an application with Malta Enterprise, and where Malta Enterprise is satisfied that an eligible undertaking requires support to rent industrial space for developing a business activity, it may provide assistance not exceeding €25,000 per annum and covering up to 50% of the cost of the rent, in accordance with the terms and conditions set out in the Guidelines issued by Malta Enterprise.

Applications will be received until 31 December 2022.
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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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The current worldwide outbreak of the COVID-19 has left many people with concerns about the spread of this disease. Due to its sudden spread around the world, the World Health Organisation (WHO) classified coronavirus as a global pandemic. For this reason, Governments introduced restrictions on their citizens while the majority of the European Member States imposed a complete shutdown on their country.

Malta, being a member of the European Union, did its part too. Through different legal instruments, it gradually restricted the country’s economic activity almost to a complete halt. The peak of these restrictions was reached through Legal Notice 92 of 2020 (Travel Ban (Extension to all Countries) Order) which amended Legal Notice 42 of 2020 (Travel Ban Order, 2020) which extended a travel ban on persons to Malta and from Malta to and from all countries.

In order words, Malta closed its frontiers, thus affecting one of the four fundamental freedom of the European Union – the right of free movement of persons.

Truth be told, the borders are not completely closed without exemption, since according to Article 2 of L.N. 92 of 2020, the free movement of goods, humanitarian and repatriation flights are exempted from this Order. Moreover, on the 30th March 2020, the European Commission issued guidance on the implementation of the temporary restrictions on non-essential travel to the EU, on the facilitation of transiting arrangements for the repatriation of EU Citizens and on the effects on visa policy.

It is interesting to note that this was not the first time that Malta temporary suspended certain parts of the Schengen Agreement, and reintroduced border control in terms of Article 25 of the Schengen Border Code (“Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduced border control…”).

The first time that Article 25 was invoked (and Malta reintroduced the border control) was in 2010, with the Apostolic visit to Malta of Pope Emeritus Benedict XVI. Then Malta reintroduced border controls in 2015, as a security measure in view of the Valletta Conference on Migration and Commonwealth Heads of Government Meetings, which were held during November and December of 2015. The last use of this exemption was between January and February 2017, when Malta hosted the Malta Informal Summit and Joint Valletta Action Plan meeting.

Malta is not the only Schengen member state that used this faculty. Between year 2006 and November 2019, there were 116 instances in which a Schengen member state had temporary reintroduced border control. And then came COVID-19, which encouraged many countries to this time exercise border control measures, and in some cases closing the borders altogether.

Prior to the COVID-19 pandemic, and for a good 35 years, the Schengen area had never been close to being suspended.

With the sealing off of external borders and the reintroduction of border checks by most of the 26 member states, the novel COVID-19 has turned out to be the biggest challenge that the EU has ever faced against what it deems as its “proudest achievement”: the borderless zone.

But this is a time of necessity. And indeed, as a matter of fact, in its communication to the European Parliament, the European Council and the European Commission have invited the Schengen Member States and the Schengen Associated States (Iceland, Liechtenstein, Norway and Switzerland), to prolong the external border closure for non-essential travel to EU for another month i.e. until May 15, 2020 and reserved to right to prolong this period depending on the developments of the epidemiological situation.

Margaritis Schinas, Vice-President of the European Commission for Promoting our European Way of Life, stated that: “The restriction on non-essential travel from third counties to the EU complements these measures at the EU’s external borders. While we can see encouraging first results, prolonging the travel restriction is necessary to continue reducing the risks of the disease spreading further. We should not yet let the door open whilst we are securing our house.”

This notwithstanding, there is really no lifting of the right of the free movement of EU Citizens; it is rather a situation where this right is being affected by the promulgation of other legal measures. And indeed, Eurocontrol has reported an overall reduction of 86.1% in the number of flights in the EU, and that the passenger traffic has been almost reduced to zero. A similar trend of passenger traffic was also seen in the other modes of transport such as in ferry, coach and rail transport. By invoking article 25 of the Schengen Border Code, together with other measures across the EU, many have been affected, and so has the European right of Free Movement.

Right now, this EU right remains limited, but it is certain that it will have no trouble to resume in its entirety once hopefully, this pandemic is defeated, exit/entry points are reoponed, border controls relaxed, and people start to travel again.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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Yesterday, 9 legal notices were published, all of which are aimed to reduce the restrictions previously introduced to guard against and/or to control the COVID-19 infectious disease:

• Through Legal Notice 171 of 2020, lotto booths are allowed to reopen on next Monday 4th of May onwards;

• Through Legal Notice 172 of 2020, as of next Monday 4th of May, shops whose principal business relates to the selling of products mentioned in the hereunder list, are allowed to reopen:

 Clothing;
 Sportswear;
 Jewellery;
 Handbags;
 Leather goods;
 Costume Jewellery and Accessories;
 Footwear;
 Non-Prescription eye-wear;
 Perfumeries;
 Beauty Products;
 Haberdasheries;
 Soft Furnishings;
 Souvenir Shops;
 Discount Stores;
 Luggage Shops;
 Toy shops;
 Hobby Shops;
 Furniture Shops; and
 Florists.

Through Legal Notice 173 of 2020 the Superintendent of Public Health ordered that as of next Monday 4th of May persons are prohibited from being in groups of more than four (4) persons in public spaces including in queues and bus stops. Previously such restriction was more stringent as people could not be in groups of three (3) in public spaces. However, such restriction shall not apply to groups of persons in public places if the persons live in the same residence. Moreover, persons waiting in queues or on bus stops shall always keep a two (2) metre distance between them. Any person who fails to abide by this order shall, on conviction, be liable to the payment of a penalty of one hundred euro (€100) for each and every occasion in which that person breaches such order.

By means of Legal Notice 175 of 2020 any ban previously introduced with regards to non-essential travel between Malta and Gozo has been revoked and consequently people are now free to travel between Malta and Gozo.

Furthermore, by means of legal notice 176 and 177 of 2020, the Superintendent of Public Health also ordered the opening of the court registry, and this with effect from the 4th of May, 2020. Nevertheless, any legal, judicial or administrative time limits for the filing of any acts before the Court following the conclusion of any proceedings which were suspended prior to the coming into force of the Closure of the Court of Justice (amendment No. 2 ) Order, shall remain suspended.

By means of legal notice 178 of 2020, the Superintendent of Public Heath, with effect from the 4th May, 2020, revoked the order of the closure of VRT stations (revocation) order. Consequently, as of next Monday, VRT stations may reopen to provide all of their services.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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