ISSUE 04 AUG 2015
FAMILY EMPLOYMENT BUSINESS THE EU & MORE
Plain sailing Dr. Alison Vassallo
Contents 4
Family Separation & Maintenance
8
Employment Family Based Rights
10
EU Update The role of Erasmus as an Educational Funding Programme vis a vis Economic Growth
14
Parliament The Council of Europe Convention on Preventing & Combating Violence against Women & Domestic Violence
19
Civil Buying & Selling Immovable Property in Malta
22
Vox Pop 1 Should Legal Aid be made available to all?
24
Interview Plain Sailing
28
Ombudsman Inconvenience & Loss of Business caused by an Open Centre for Immigrants
32
Film Review The Good Wife
34
Non Profit Supporting Youth
36
Life is for Living Working in a Great Team
38
Life is for Eating Cured Salmon Gravalax
40
Vox Pop 2 What are the criteria which you take into consideration when hiring a lawyer?
LIVING LAW is owned and produced by Dr. Roselyn Borg & Dr. Roberta Lepre Editors: Dr. Roberta Lepre & Dr. Roselyn Borg Email: editors@livinglawmagazine.com
Letter from the Editors We have taken the plunge and decided to go online with Living Law. The aim of the magazine was always to reach out to people and to make the law accessible to as many people as possible. We believe that by going online this is more achievable. Today most of us are online throughout the day, whether through our home computer or smart phone. Therefore you can read an article which is of interest to you in the comfort of your home or when you are waiting somewhere or just lying on the beach! We ask you to help us‌ you the readers have the power to share the knowledge found in Living Law and this is another reason why we believe online is the way forward. Please share the articles through social media and let your family and friends know about it. Let us together spread the word. Let us together make the law accessible and let us together reach out to the people. Knowledge is power. We take the opportunity to wish you all a great Summer!
Design & Art Direction: Faye Paris Photography of Editors: Luke Engerer No part of this magazine may be reproduced without the written consent of the publisher. This publication is for information purposes and is not intended to provide legal advice. Readers should not act, or refrain from acting, based on any information contained in this publication. Readers should not rely on information provided herein as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction. 2
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Dr. Roselyn Borg & Dr. Roberta Lepre
FAMILY
MARITAL BREAKDOWN HAS BECOME AN UNFORTUNATE REALITY FOR AN INCREASING NUMBER OF COUPLES WHO, BESIDES HAVING TO DEAL WITH THE EMOTIONAL UPHEAVAL OF A SEPARATION, MUST ALSO ADDRESS THE INEVITABLE LEGAL ISSUES ASSOCIATED WITH SUCH PROCESS.
Separation & maintenance DR. ELAINE GINGELL LITTLEJOHN
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Undoubtedly very often what makes a separation more difficult for a couple is the process of trying to untie their financial knot. Particularly where minor children are involved, one of the most crucial aspects of a separation, albeit certainly not the only one, is the payment of maintenance. This matter is one which gives rise to various disputes and uncertainties particularly in the absence of specific formulae within our legal system aimed at determining the rates of maintenance applicable to particular circumstances.
In Malta spousal and child maintenance may be determined either by agreement between the spouses or by court order. Additionally, and pending separation proceedings, even at mediation stage, it is possible to seek a court order regulating the interim payment of maintenance throughout such procedures. In determining the quantum of maintenance a number of criteria are taken into account particularly related to the means of the spouses, their ability to work, their
FAMILY
needs, as well as a number of other circumstances related to the spouses and the children. The law provides for a nonexhaustive list of circumstances which include disability, serious illness and the accommodation requirements of the spouses and of the children. A distinction must be made between maintenance payable for the needs of a spouse and that payable for the needs of a child. Spousal maintenance is not necessarily always due particularly when both the husband and wife are financially independent or otherwise capable of working. On the other hand, child maintenance is a legal responsibility which, generally speaking, must be catered for in all cases.
Following a separation, the residence of a minor is normally established with one parent while the other parent, being the one not having the day-to-day care of the child, would have, inter alia, a right of access towards the child as well as an obligation to pay maintenance to the other parent for the needs of such child. Maintenance payable for the needs of a minor ceases upon such child attaining the age of eighteen. However, should the child continue in full-time education, training or learning and is not in a position to maintain himself adequately, maintenance remains payable up to the maximum age of twenty three.
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FAMILY
In establishing the maintenance payable towards the needs of minor children regard must also be had to additional expenses particularly those related to health, education as well as extra-curricular activities. While it is possible to establish a fixed sum of maintenance which incorporates all expenses, more often than not such costs are dealt with separately, over and above the monthly maintenance and may either be shared between the parties, equally or in proportion to their respective means, or otherwise absorbed in full by one parent. As the law stands today, each case must be assessed on its own merits and what applies to one case might not necessarily apply to another. Indeed, in determining maintenance one must also look at the bigger picture in order to reach a fair assessment based on all the relevant circumstances of each particular case. In the context of an amicable settlement spouses are free to negotiate and establish by agreement between them, the maintenance payable towards the needs of the receiving spouse, where applicable, and of the children. Provided the
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interests of the minor children are adequately safeguarded, it is likely that the courts will proceed to authorise the deed based on the agreement reached between the parties. Where the spouses fail to reach an agreement, the final quantum of maintenance is determined by the judge in terms of the criteria aforementioned and based on the evidence and information provided by the parties. Payment of maintenance may take various forms, the most common being that of monthly payments. However, lump sum payments, whether payable in full or by instalments, are also possible. Additionally, it is also possible for the courts to order that in lieu of all or part of a lump sum payment, the spouse liable to pay maintenance assigns to the other spouse property in ownership or in usufruct, use or habitation. The court also has the power to order that
maintenance payments be deducted directly from one’s salary to ensure regular and punctual payment. The implications of maintenance established by court or otherwise imposed in a contract must not be undermined since failure to fulfil such duty invokes both criminal and civil proceedings. This article merely touches on pertinent matters related to maintenance obligations upon separation. However it is clear that there are various legal aspects and implications that need to be looked into. While an amicable agreement on the matter is not always possible, a level-headed and honest approach by the respective parties would at least enable open discussions aimed at reaching a fair arrangement which safeguards the interests of both parties and those of the children.
EMPLOYMENT
Family Based DR. ROSELYN BORG
Rights
MATERNTIY LEAVE
ANTE NATAL CHECK-UPS • Time-off work without loss of pay where visits can only take place during working hours. • Employer may request documentation to prove this.
An uninterrupted period of 18 weeks. Employee is to inform employer at least 4 weeks before the maternity leave begins (as far as is reasonably practicable). How is maternity leave availed of? • 6 weeks to be taken compulsorily immediately after date of confinement. • 4 weeks before the expected date of confinement unless agreed otherwise. • Remaining balance – before or after as THE EMPLOYEE may request. If the employee is unable to avail herself of the maternity leave entitlement before the date of confinement, the remaining balance may be availed of after confinement.
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EMPLOYMENT
PARENTAL LEAVE • Unpaid – up to 4 months until the child is 8 years of age. • Such leave is to be availed of in established periods of 1 month each. • This is applicable to birth, adoption, fostering or legal custody of a child Applicability: • Both male and female parents. • Whole time employees. • Part-timers who are entitled to pro rata leave.
URGENT FAMILY LEAVE On grounds of force majeur for urgent family reasons in cases of sickness or accident making the immediate presence of the employee indispensable. • A minimum total of 15 hours with pay – to be deducted from the vacation leave • Part-timers are entitled to pro-rata urgent family leave
The circumstances which allow for urgent family leave include: • Accidents to members of the immediate family of the employee • The sudden illness or sickness of any member of the immediate family of the employee requiring assistance or the presence of the employee • The presence during births and deaths of members of the immediate family of the employee
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9
EU UPDATE
The Role of
ERASMUS+ as an Educational Funding Programme vis a vis economic growth The European Union Programmes Agency (EUPA) was set up in the year 2000, as a Unit within the Ministry of Education, Employment and Family. On the 4th of May 2007, the Unit was established as a legal autonomous Agency. The aim of the EUPA has always been to support Maltese individuals and entities in availing themselves of funding under the new educational programme, ERASMUS+ provided by the European Commission.
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EU UPDATE
The general objective of the programme is to contribute towards a holistic development of the community as an advanced knowledge society, with substantial economic development, more and better jobs and greater social cohesion, while ensuring good protection of the environment for future generations. These aspects can be achieved through ERASMUS+, which gives an important contribution to the acquisition of competencies, experiences and knowledge. These programmes are a key instrument in providing a varied range of people coming from different age groups and backgrounds, with opportunities for non-formal and informal learning with a European dimension.
In particular, the Agency, through its programmes under ERASMUS+, aims to foster interchange, integration, co-operation and mobility between individuals and groups within the community in order to become a world quality reference, promoting and celebrating best practices.
divergence between member states, at the top of the scale Greece and Spain are suffering from unemployment levels over 25%. At the opposite scale Malta falling in the third lowest out of the 28 member states with unemployment reaching a minimal 5.7% before Austria and Germany having lower rates.
The scale of the Economic crises over the past six years has had a significant impact on employment in the European Union. There are now over 9 Million more people unemployed in comparison to 2008. Of this figure, 1.3 million are aged between 15 and 24. There are also 26.2 million people unemployed out of which 5.56% are young people. The overall unemployment in the EU stands at around 10.8%, it is important to note the significant
One must admit that a large number of young Europeans who are not in Education, Employment or Training, is of great concern to me. These young people are not using their potential to develop their skills and gain further experience on both a National and European level. Mobility in the new funding programme of ERASMUS+ (2014 – 2020) remains a priority on National and European agendas.
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EU UPDATE
Where does the European Union Programmes Agency feature? In order to reduce youth unemployment, it is recommended that Malta reduces early school leaving, which reaches a phenomenal 22%, while the EU average is 14%. This can be achieved by raising overall skills, increasing the performance of education and training systems, at the same time linking the working world and education and facilitating the transition from school
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of work to traineeships, apprenticeships as well as dual learning models such as classroom based education combined with hands on experience in the work place. This can all be done through the ERASMUS+ funding programme which falls under the remit of EUPA. ERASMUS+ will help young people with the development of social
EU UPDATE
capital, the empowerment of young people and their ability to participate actively in society. This is in line with the Lisbon Treaty to “encourage the participation of young people in a democratic life in Europe”. This issue can also be targeted through nonformal learning activities which can also be funded under the ERASMUS+ funding programme. The aim of these programmes is to enhance skills and competences of young people as well as their active citizenship. The ERASMUS+ programme shall contribute to the achievement of the objectives of the European Strategy 2020 including education as the main target, as well as the strategic framework for European cooperation in education and training, including the corresponding benchmarks. The sustainable development of partner countries in the field of higher Education, including the overall objectives of the renewed framework for European cooperation in the youth field (2010 – 2018). These objectives can all be achieved through either Key Action 1 which involves mobility of individuals in the field of education, training
and youth, joint master’s degree as well as mobility of Master Degree students through a Student Loan Guarantee scheme. On the other hand Key Action 2 focuses on; combining higher levels of excellence and attractiveness with increased opportunities for all, including disadvantaged groups. This can be achieved through Strategic Partnerships, knowledge Alliances, Sector Skills Alliances, Capacity-building in the field of Higher Education and Capacity-building in the field of youth, finally Key action 3 caters for the Support for Policy reform. To achieve the aforesaid targets the Maltese government is working hard to stimulate economic growth across the board. The main aim is to expand and increase foreign investment which ultimately will increase the array of opportunities for young Maltese to find lasting and sustainable employment with a good remuneration. This is in line with the European Commission, which targets around 2% economic growth in the EU during 2014. The Maltese government is responsible for its own education and training systems, so EU policy is designed to support national action and help address common
challenges, such as ageing societies, skills deficits in the workforce, and global competition. The EU offers a forum for exchange of best practices, gathering and dissemination of information and statistics, as well as advice and support for policy reforms. Funding is also available for activities that promote learning and education at all levels and for all age groups. Through the strategic framework for education and training, EU countries have identified four common objectives to address these challenges by 2020: Making lifelong learning and improving the quality and efficiency of education and training; Promoting equity, social cohesion, and active citizenship; As well as enhancing creativity and innovation, including entrepreneurship, at all levels of education and training. Therefore as an Agency we are committed to support projects by providing the full support to beneficiaries in the quest to have the successful implementation of their project, and maximising the use of the EU funds available. For further information, visit www.eupa.org.mt or call on 25586130.
KARL ENGERER
LIVING LAW
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PARLIAMENT
The Council of Europe Convention on Preventing & Combating Violence against Women & Domestic Violence
O
What’s new? 14 LIVING LAW
n Monday 21st of May 2012 Malta signed the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention), joining 18 other countries who had already become signatories. The signature of this Convention was itself the result of a long process, in which the Commission on Domestic Violence actively participated alongside other Council of Europe Member States. On Tuesday 17th June 2014, President Marie Louise Coleiro Preca assented to Act No. XIX,
PARLIAMENT
the Council of Europe Convention on Preventing and Combating of Violence against Women and Domestic Violence (Ratification) Act, 2014 enabling Malta to ratify and transpose the Istanbul Convention into Maltese law. One may question, so what is new with preventing and combating violence against women and domestic violence? What new elements and contributions does this Council of Europe Convention bring to the fight against violence against women and domestic violence? The Istanbul Convention is the first international Convention, which creates a comprehensive legal framework and approach to combat violence against women applying to all forms of violence against women, and domestic violence and aimed at preventing violence, protecting victims and prosecuting the perpetrators.
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PARLIAMENT
Thus, the main aim of this Convention is to eliminate all forms of violence against women and domestic violence through prevention, protection and prosecution. The Convention also establishes a comprehensive framework based on policies and various measures to protect and assist all victims of violence against women and domestic violence. Furthermore, it does not just address direct services and training for professionals in the field but focuses on core issues encountered by real women, victims of violence and domestic violence. In dealing with these issues in concrete terms, the Istanbul Convention promotes substantive equality between women and men highlighting the need for proper substantive equality to eradicate violence against women and domestic violence. Other imperative factors in the fights against violence against women and domestic violence include international cooperation whilst providing support to organizations and law enforcement agencies to empower their roles and strengthen their resources to be able to efficiently cooperate within
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an integrated approach against violence against women and domestic violence. Succinctly, through it’s ratification of the Istanbul Convention, the Maltese Government is now duty bound to: • take action to promote and protect the right for women to live free from violence in both public and private spheres; • condemn all forms of discrimination against women; • take measures to prevent discrimination against women; • prohibit discrimination against women through the use of sanctions; • abolish laws and practices which discriminate against women; • ensure that all forms of violence against women are criminalized and meted with appropriate punishment; • ensure that State authorities, officials, agents, institutions and other actors acting on behalf of the State act in conformity with the obligations under this Convention; • take measures to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence perpetrated by non-State actors;
• implement policies to fight stereotypes and gender roles; • train professionals within respective fields; • raise awareness of forms of violence; • cooperate with NGOs and the private sector; and • protect victims of violence by ensuring their safety through the provision of services such as psychological and legal counselling, shelters and telephone help-lines. The Istanbul Convention came into force on the 1st of August 2014. What kind of difference do these agreements between nations make? A lot of difference! They give high profile to such pressing issues and set out to States precise targets regarding what they should be doing to, in this case, prevent and fight against violence against women and domestic violence. However, is it all just talk? Ideally, it should be all about adequate and affective prevention and enforcement. The main difficulty lies in translating State obligations into concrete action taken by local enforcement agencies, however if the State clearly shows that it is in fact taking this issue seriously and that is holding enforcement
PARLIAMENT
THE MAIN AIM OF THIS CONVENTION IS TO ELIMINATE ALL FORMS OF VIOLENCE AGAINST WOMEN AND DOMESTIC VIOLENCE THROUGH PREVENTION, PROTECTION AND PROSECUTION.
agencies and authorities responsible for failing to do so, then this Convention will indeed make a difference! What does ratification mean on a national level? Certainly, Malta’s signature and ratification of this Convention signifies a landmark in the State’s full commitment to this cause and government’s zero tolerance approach to violence against women and domestic violence. Nonetheless, this legal stance must be complemented by a fully-fledged system multi-disciplinary approach within the field, bringing together a number of professionals and empowering them with necessary resources to strive towards the complete eradication of violence against women and domestic violence.
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CIVIL
Buying & Selling Immovable Property in Malta THE FOLLOWING ARE SOME GUIDELINES ON THE DUTY/TAX DUE AND THE COLLATERAL EXPENSES INVOLVED IN THE BUYING AND SELLING PROCEDURES OF IMMOVABLE PROPERTY IN MALTA OTHER THAN THE VALUE OF THE PROPERTY ITSELF. DR ELSA DEBONO B.A. LL.D NOTARY PUBLIC
BUYING A PROPERTY Duty on the Transfer of Property due by the Buyer The rate of 5% is calculated on the whole amount of the purchase price, except in these two following cases: If the buyer declares in the contract that the property is going to be used as his sole and ordinary residence, then the duty (boll) due on that transfer is calculated at the rate of 3.5% on the first €150,000 of the purchase price and at the rate of 5% on the remaining amount of the purchase price. By virtue of a temporary exemption applicable till the end of June of the current year 2015, a buyer shall be exempt from paying duty on the first €150,000 of the purchase price if he is a first-time buyer, that is, a person who never acquired immovable property in his own name (this excludes property acquired by way of inheritance).
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CIVIL
Notarial Fees and Expenses incurred by the Buyer It is common practice in Malta that the Notarial fees and expenses related to the transfer of an immovable property are incurred by the buyer due to the fact that the buyer has the right to engage a Notary of his own choice. The Notarial fees are regulated by a Schedule of Tariffs stated in the Notarial Law of Malta and by the Notarial Council guidelines. These fees include the drafting and publication
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CIVIL
of the promise of sale and the final public deed of sale, the researches that have to be conducted on both the seller and the property itself for good title, as well as the post-deed registrations that have to be done both at the Public Registry and at the Land Registry. Other expenses might be incurred due to any special permits and/or authorizations that might be needed for the final sale to be concluded.
SELLING A PROPERTY Tax on the Transfer of Property due by the Seller No tax is due on the transfer of an immovable property when a seller declares in
the final deed of sale that he has been the owner and he has also been residing in that property as his sole and ordinary residence for more than three consecutive years immediately before the final deed of sale, and that he has not vacated that same property more than a year before the final deed of sale. Tax at the rate of 8% is due in any other transfer, except in the following cases: Tax at the rate of 5% is calculated on the purchase price when the property is being sold within 5 years from when it was acquired, the seller is not a trader and the property does not form part of a project; and Tax at the rate of 10% is calculated on the purchase price when the property was acquired before the 1st of January 2004 and the promise of sale registration has not been made before the 17th of November 2014. Selling Inherited Property The following are the two different scenarios which differ in the rate of tax to be calculated: When a person sells an immovable property which he inherited before the 25th of November 1992, the tax is calculated at the rate of 7% on the selling price.
When a person sells an immovable property which he inherited after the 25th of November 1992, the tax is calculated at the rate of 12% on the excess of the value of the selling price over the value of the property as declared in the deed of declaration of transmission ‘Causa mortis’. This public deed is a declaration of the heir that he inherited that property and on which deed the tax of succession (standard rate is 5%) is paid for this transmission/registration to take place. Notarial Fees and Expenses incurred by the Seller The Seller is not obliged to pay any expenses other than the tax or any special permit/s that might be due by him according to the Laws of Malta. In all these cases the Notary publishing the final deed of sale is obliged by Law to collect this duty/tax on the public deed itself. Then the Notary has to submit that duty/tax to the Inland Revenue Department and it is only then that the transfer of the immovable property can be registered at the Public Registry and/or Land Registry.
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VOX POP 1
Should legal aid be made available to all? Vox Pop 1 John Muscat Drago, Human Resources Consultant
Vox Pop 2 Maronna Filletti Executive Director Joseph Cachia & Son Ltd/ M. Demajo Group
It is a basic principle of democratic society and one enshrined and protected by the ECHR that all individuals have a right to a fair trial.
In my opinion everybody has a right to access to legal aid to ensure that justice is available to all and not be restricted only to those who can afford it financially. On the other hand such aid should only be made accessible to those who really cannot afford to do so privately as otherwise there could be the risk of people seeking such support frivolously. The issue is where to draw the line. Should it be restricted to minimum or low wage earners or also to those on a relatively higher income though having other family commitments which could hinder or discourage them from seeking legal advice or aid. I tend to favour the latter. Moreover those who resort to legal aid should be given the full support at par with what could be offered privately. Many a time people may not be aware about their rights on various issues and therefore they could potentially lose out materially or financially as they may not seek the advice of a lawyer owing to financial constraints. Hence such people should be encouraged to utilise the legal aid services. At the same time these should be easily accessible both in terms of opening hours and location. 22 LIVING LAW
If one cannot afford legal representation these rights are undermined and access to justice is denied. Whatever rights and responsibilities exist are meaningless unless it is possible to access the law and the courts to ensure that they are fully observed and protected. It must be possible to hold individuals, organisations and the State to account and obtain effective remedy. Â Legal Aid is therefore an essential right and precondition for the exercise and enjoyment of a number of other human rights. It is vital to protect the rights of the vulnerable, to uphold the rule of law and to hold the state to account. Â
VOX POP 2
Vox Pop 3 Joshua Chircop, Law Student
In my opinion legal aid should be as broad as possible, not only extending to criminal proceedings, but also to the provision of effective legal assistance in any judicial and extrajudicial proceedings. It should extend to all members of a state, but also further than that. For example foreign students, migrant workers, asylum seekers and in certain circumstances, to those visiting a country. Only this will ensure complete accountability. In my opinion, it should extend to all irrelevant of income, to ensure that the State does not have impunity. Contributions can be made following the proceedings if an individual loses a case, but inevitably, the financial responsibilities of most countries will mean that this possibility undoubtedly remains a long way off.
At the heart of the concept of legal aid is the welfare state. The state must protect the well-being of citizens, especially those in financial or social need. The ECHR guarantees the right to legal assistance specifically where the party has insufficient means to pay for legal assistance and get free legal aid when the interest of justice requires. Maltese legal aid lawyers employ a means and merits test to determine whether a person qualifies for assistance. Opening the system up to people who can afford legal advice, is opening the system up to criticism for being too socialist. The same reasoning behind not offering social benefits to all, such as government housing, can be employed here. There is debate whether the local system violates local and international law. We only have around ten legal aid lawyers, working in all fields of law, their fee isn’t paid commensurately to their responsibilities, and it comes from the budget of the Office of the Attorney General, who is an adversary to legal aid lawyers. The Justice Reform Commission numbers among its proposals a revision of this system. Thus, these issues must be addressed if, and before, a postulation of legal aid for all can be considered.
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LIVINGLAW MEETS DR. ALISON VASSALLO, PARTNER WITHIN THE MARINE LITIGATION AND YACHTING DEPARTMENTS AT FENECH & FENECH ADVOCATES. IN MAY 2015 DR. VASSALLO WAS ELECTED AS CHAIRMAN OF THE EXECUTIVE COMMITTEE OF THE YACHTING TRADE SECTION WITHIN THE CHAMBER OF COMMERCE.
What is a ‘super yacht’? The industry consensus is that a yacht – whether sailing or motor - over 24 metres in length is referred to as a ‘superyacht’. However, with yards being requested to deliver yachts that are significantly over the 24 metre threshold, today we have also coined the term ‘mega yachts’ and ‘giga yachts’ in referring to yachts averaging 40 metres and above. Malta is doing exceptionally well in attracting registration of super yachts to what do you attribute this success? Malta is currently the largest flag in Europe and
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Plain sailing the sixth largest in the world with 57.9 million gross tonnes of which yachting of course represents only a percentage. There are currently 292 privately
registered yachts and 160 commercially registered yachts over 24 metres in length. Over the past five years Malta has become a world leader in the
a package of services that attract owners to our jurisdiction, such as corporate structures, the formulation of guidelines of tax treatment relating to superyachts and smooth importation procedures. Over the past 8 years I have seen Malta’s position as a one stop jurisdiction for superyachts going from strength to strength and this is by no means a matter of chance. It is the result of hard work in promoting Malta overseas through regular attendance at boat shows and conferences, in attracting high net worth individuals to our shores, in ensuring that the level of service offered to owners is slick, reliable and competitive and also of the excellent relationship that we as the private sector
are blessed to enjoy with the public sector. While we have seen that some other member states have made the mistake of choosing to take a punitive approach towards yacht owners, Malta has recognised the value of strengthening the legislative package affecting superyachts with significant results which we need to nurture and continue to improve upon. How does this success impact our economy? I often think that those who are not involved in the sector may not realise the domino effect that is enjoyed by the local economy through the strengthening of the superyacht industry. Besides the funds that
registration of commercial yachts and enjoys a steady performance in the registration of private yachts. This excellent track record is a result of Malta having wisely built on the international reputation is has traditionally enjoyed with regard to the registration of merchant ships. However Malta’s success in the superyacht world is not limited to the success of the flag but is a result of a concerted effort made by the Government and the industry to build
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are directly injected into the economy as a result of owners accounting for the tax aspects of owning a superyacht in Malta and the registry fees relative to the registration of the yacht, there is a significant number of industries that feed off the superyacht sector, some more obvious than others, such as Yacht Building, Refit and Repair, Financing, Law, Insurance, Marina Services, Architects and interior designers, carpenters, surveyors, the chartering market, crew recruitment, bunker and provision suppliers, hotels, restaurant and entertainment venues and taxi drivers. What attracted you to practice in this sector? You could say I fell into the yachting sector as a result of how my career progressed. I specialised in international maritime law and shipping on graduating as a lawyer. I always had a strong love for the sea which rubbed off on my academic choices. When I joined the Marine Litigation Department at Fenech and Fenech Advocates nine years ago, the head of the department and Managing Partner of the firm Ann Fenech, who had been closely following changes being made to the yachting sector, asked me to research and commence to build a practice within 26 LIVING LAW
the firm, which I will always be grateful for and which I poured heart and soul into. Today I practice Marine Litigation in parallel with Yachting with a great team. The Yachting Department is supported by the Ship Registration, Ship Finance, Tax and Corporate Departments and our experience as leaders in the shipping law sector has meant that we offer our clients a 360 degree service. Attending yacht shows and speaking at international conferences has taught me that the industry is in actual effect a very intimate one and I have formed close working relationships with service providers abroad which is extremely professionally and personally fulfilling. Most important is the fact that whereas clients would normally leave their business or estate matters in the hands of their personal lawyers or accountants, where their yacht is involved they often want to personally deal with the person on the other end of the email handling their matters in Malta and this has led me to meet some extremely interesting individuals who are often leaders in their line of business. Needless to say I also enjoy the glamour and the social and aspect of it all too!
Can you share some highlights in your career so far? This year I had the fortune of being involved in two large projects for clients choosing to utilise their vessels for hands-on
philanthropic purposes. This is a trend that I am increasingly noticing in our practice. Joining the firm as Partner in January of this year is a personal achievement of which I am extremely proud.
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OMBUDSMAN
Inconvenience & loss of business
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OMBUDSMAN
caused by an Open Centre for Immigrants FROM THE CASE NOTES OF THE OFFICE OF THE OMBUDSMAN The Complaint The management of a wedding and other receptions complex in close proximity to an Open Centre (which used to accommodate hundreds of irregular immigrants) complained of the chaotic and disastrous situation in the area resulting from the activities which had been allowed to develop because of alleged bad administration by various Government Departments/ Agencies. As a result, the Company lost most of its financial business. The complainant did not dispute the need to maintain the openness of the Centre or the need/related process
of integration of these immigrants within the country and society. Nor did he dispute the free movement of these immigrants outside the Open Centre as a pre-requisite to such integration. However he maintained that the application of these principles should not prejudice the rights of others. He reteirated that the related activities should respect the laws and regulations applicable to the rest of the Maltese society. He argued that this balance was not being maintained. Further, he argued that the Open Centre was not covered by a MEPA permit and therefore
no Environment Impact Assessment, especially the related traffic impact of the said activities, had been carried out. He submitted proposals on how such negative impacts should be reduced. Complainant stressed that the negative impacts have ruined his business. The Investigation The Office of the Ombudsman interviewed the various parties involved, including the Police authorities, Local Council officials, the Management of the Open Centre and the complainant. Information was also sought from the Audit Officer MEPA in respect of the role/
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OMBUDSMAN
responsibilities of MEPA in the situation under consideration. A number of facts emerged following these interviews. Furthermore, evidence provided by the complainant showed the loss suffered by his business, including the loss of an exclusive contract from a leading catering firm for the operation of complainant’s complex, on the grounds that the complex “is no longer in a fit condition for the use for which it has been let”. This firm confirmed that it had cancellation of bookings because of the problem and of guests being intimidated and turned back on their way to a social event. As a result the complainant’s business activity practically came to a standstill. Considerations The Ombudsman understood the mammoth crisis facing Government in the light of the phenomenon pf irregular immigaration, whilst also noting the complainant’s positive attitude towards the need for an Open Centre. Complainant was in fact only insisting that the related activities should be done with the least possible inconvenience to other social and commercial
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activities in the area. Having established the facts which confirmed the complaint, the Ombudsman also went on to consider the proposals put forward by complainant himself which he considered would help to ease the situation. It was also confirmed with the MEPA Audit Officer that the Open Centre needed, but was not covered by, a MEPA permit, with the result that no Environmental Impact Assessment including an evaluation of the traffic impact in the area was ever carried out. In the light of the above findings, the Ombudsman upheld the complaint in respect of the chaotic commercial activity in front of the main entrance to the Open Centre which needed to be properly regulated and well lit. The Open Centre itself needed to be covered by a MEPA permit. As a result of the failure of the authorities to effectively control the situation, the complainant was the victim of such failure with serious financial repercussions. The Ombudsman recommended that the competent authorities, including MEPA, should investigate the situation to determine what steps were needed to be taken
in line with his report so as to address complainant’s grievances. Follow Up The Ombudsman sent his Final Opinion to the complainant and to the competent authorities including MEPA, the Police, the Ministry for Justice and Home Affairs and the Management of the Open Centre. The continued sporadic police presence in the area however did not result in any significant improvement. Nor had the competent authorities implemented the Ombudsman’s recommendation. He had only succeeded to convince MEPA to ensure that an application for a permit to sanction is filed. This however is a long way off from finalisation. The Ombudsman therefore brought the matter to the attention of the Prime Minister stressing that the lack of proper control of the situation in the area and lack of effective action by the responsible authorities had caused grievous financial losses to complainant. The Ombudsman pointed out that if the administration is not in a position to solve the problem in the short term such as to enable complainant to carry out
OMBUDSMAN
his commercial activity in a fair and effective manner, he had no option but to request Government to consider that the Open Centre run by Government was in effect expropriating complainant’s property by rendering it unjustly valueless. Government should further consider that it was not fair for one single person to suffer in a disproportionate manner because of the interests of the country and should consequently compensate complainant in an adequate manner. In making this statement, the Ombudsman referred to an analogous case, a villa in Delimara where the Courts
ordered compensation because of the negative effects of the Enemalta Power Station chimney to the detriment of the owner of that villa. While informing the Prime Minister that the next step open to Ombudsman, in terms of the law, was to refer the matter to the House of Representatives, he concluded by recommending to the Prime Minister that the latter appoints an Official within his Office to coordinate the necessary measures on the part of the various departments/agencies to remedy the situation.
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FILM REVIEW
The Good Wife - good for the spirit & good for the soul
TV SERIES WITH A LEGAL TWIST
W
hen I first heard about ‘The Good Wife’ I wasn’t too thrilled – it starred Julianna Margulies whom I only knew from that George Clooney hospital show, and that Mr. Big guy whom I knew from Sex and the City – probably my least favourite show on the face of the earth. But it was also a show about the law - a theme that always fascinated me beyond belief – so I took the plunge and started watching all the while thinking that I could turn it off anytime.
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The Good Wife tells the story of a woman who, after standing by her husband through thick and thin (and unmentionable embarrassment) sees her career, her social life, and her love life, take off at quantum speed.
of everything. She’s the Goddess of all the characters. She’s the fulcrum of every single episode. Everything and everyone revolves around her. Boring right? That’s what I thought too, but think again.
After having been a full time housewife and mother for 13 years, she sees her husband (a State’s Attorney) get caught sleeping with an uncountable number of prostitutes and sent to jail. Surprisingly, this turns out to be the best thing that could have happened to her.
At first we see Alicia simply as a political wife – an unpretentious, albeit elegant woman, who enjoys her daily glass at 3pm. We then see her philandering husband working his way into jail and when she’s left with no choice but to go out to work to support her two kids, Alicia swiftly moves on to becoming the biggest thing in a Chicago courtroom.
The show is all about this one character – Alicia Florrick. She’s the centre
FILM REVIEW
Straight out of the kitchen, she gets an entry-level position at a big-city law firm, which, lo and behold, happens to belong to Will Garner – one of Alicia’s long lost lovers. From here, the plot develops into a realistic portrayal of complicated relationships with convincing emotions and difficult situations. The dialogue is smart, and best of all - the storyline promotes great possibilities for women. Having a communications and writing background, what got me addicted to the show was the writing, even though the best parts are told without words. Helped with clever backlighting and impeccable acting, Marguiles perfected a gaze that speaks a thousand words. It is this gaze that has her audience absolutely mesmerized, and myself unable to turn off the tube at will. This gaze does a lot of the emotional work for you as a viewer. This leaves you with the mind space to enjoy the deep-end of sex scandals, politics, law offices, people in expensive suits that are worth more than most of us make in a decade, and lots and lots of lawyer talk. Julianna Margulies plays the elegant Alicia Florrick
and to fans of the show it came as no surprise that she won a Golden Globe and two Emmys. It was also no surprise that The Good Wife picked up a Bafta nomination. If you haven’t started watching it yet... You’re missing out. ALISON BEZZINA
LIVING LAW
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T NONPROFIT
hirteen: with no one to talk to, this can be such a selfconscious, uncomfortable age! Too old and too young at the same time; your body starting to swell and sprout out of control; the stupidity of “friends” at school. My 13-year-old ‘me’ is like most other thirteen-yearolds around me I guess, somewhere between boredom and despair. I try not to be like them, but I am one of them. I wish something exciting would happen to me, like being chosen for a film or saving someone heroically. Then I would garner everyone’s attention, they would notice me. Maybe start considering me as someone important too! Soon afterwards I think: I wish I had someone special to love. I observe from a distance my sister’s 16-year-old friends. Oh they do seem to know what they are doing. They appear more secure. Almost classy. I try to imitate them, however they sound too loud and seem too snob. When will I grow up? And then, what for? I contemplate and grow charmed with the idea of dying: Sometimes I feel that there is no point in my living
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Supporting
youth
NONPROFIT
myself in the online world has become my only pastime. Here I feel safe, things are under control and even better they’re controlled mostly by me! Oh no, here she comes again. What is she babbling about this time? I’m sure she is coming in. Hope she knocks, that will restrain my outburst, my fury by an extra two minutes. Ah but she should not even be that long. I’m still hearing the laughter going on behind my back during the French class this morning and I am flushing up all over again.
if I’m not going to be anyone special. I’d hate so much to be just an ordinary nobody. I can’t imagine having a quiet life to then fade away and die without being remembered. My mother thinks she knows what I am going through. But what the heck is she talking about! She was 16 once (she says) but doesn’t realise that I’m a child of the new Millennium! I am fed up because no one understands me. Locking
At this very moment I see a post of Kellimni.com on the screen. Suddenly I remembered that I had felt good the last time I talked to them. Funny thing. I chat all the time, but at first it felt awkward, I could not open up. My typing stuttered. Then Marisa said that it was ok to feel like this, um, awkward, the first time. She asked me to express how I am feeling right now. I wrote one word, and then two. Soon, without really knowing how, I became unstoppable. A projectile
fountain of colourful emotions. My typing flowed. I don’t know if Marisa really understood everything I was saying really, but I knew she was listening to me. She did not even judge me for wishing the worst imaginable things to befall my day-to-day archenemies. I smile to myself. A lightening thought. Yeesssss… they will be online again tonight. Knock , knock... Dear? Dinner is ready! Really Ma? I’m coming down with you. Wait for me! Ma? Are you busy after dinner? Can we go for a little walk? I need to tell you something... WOW, was that me? Did I just say that? Yes, it is possible to change, life can be simpler after all. Thanks Kellimni.com … Catch you later… Well, maybe.
Kellimni.com is an online support service aimed for teenagers and young people. It is a service run in partnership between SOS Malta, Appoġġ, Salesians of Don Bosco and Aġenzija Żgħażagħ. Here you can speak with us on whatever issue is troubling you. All our online services are free and confidential and youth can even choose to remain anonymous. www.kellimni.com
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LIFESTYLE
Life is for Living!
Working in a great team... JACKEY BACKMAN, is an international speaker, trainer and consultant. She specializes in Emotional Intelligence and Soft Skills Development. For the past 15 years she has helped people in leading positive lives, achieving their goals and fulfilling their ambitions. Contract her through linked in or jackeybackman.com
What makes a great team great? Creating a great team is one of the competitive advantages remaining for organizations. A well functioning team means people are happy and happy people accomplish more in less time. In addition, talented, happy people are far less likely to leave when they belong to a well formed team with strong leadership. Political work environments, definitively, work environments where people choose what to say based on how they want people to react instead of speaking from what they think, is a key factor in deteriorating unhealthy organizations. For those organisations that are looking for longevity and to become market leaders, developing the emotional intelligence based soft skills of their talent is a critical and necessary next step.
People want to feel valued and that their best interests are at heart. Organisational leaders, once they learn how, can achieve this easily. This is based on the presupposition that companies value their customers (internal or external) because they realize that without them there would be no company. Any good leader knows how challenging it is to get great people, whether they are clients or employees. The costs associated with poor morale, poor communication, lack of strong leadership, high turn over, or ongoing conflict are may be immeasurable but not unimaginable. Any organization that is experiencing these problems knows the costs all too well. These five elements can help you on your way to creating a healthy, balanced work environment with happy productive employees.
• Clear Vision • Personal Accountability • Open clear communications • Attention to results • Trust Every individual needs to know where they’re going (vision) and they need to buy into it. They need to understand what is required from them. This goes beyond technical skills and knowledge and into their ability to form balanced, interpersonal relationships. They need to be accountable to the specifically defined results and outcomes of their actions and interactions. Naturally, none of these things can be accomplished if they don’t feel trusted or if they don’t trust you. Once these elements are fully understood, learned, and applied, great teams and great success are yours for the taking.
LIFESTYLE
Life is for Eating! Cured Salmon “Gravlax”, pickled cucumber, fresh dill & mustard dressing Serves 4 Method 2 days ahead, start preparing the gravlax.
Glenn Bugeja has over 15 years experience working within the five star hotel industry in Malta. His determination and positive attitude motivate him to work in the finest restaurants in Switzerland and Belgium. Glenn is a personal/private chef
Mix sugar, salt, pepper, lime zest and coriander seeds in a bowl. Lay the fish on a piece of cling film, and then cover the salmon with the mixture. Splash over the vodka. Cover well with cling film, place on a tray and refrigerate. After two days, unwrap the salmon, discard the mixture and any juices, and lightly wash it under cold water. Dry the fish with kitchen paper. Now, finely chop the fresh dill and sprinkle over the salmon. Cover it again in cling film and refrigerate before using. Gravalax ½ kg of fresh salmon – trimmed and pin-boned 40g sugar 40g fine sea salt ½ tsp. coriander seeds ½ tsp. ground white pepper 1 lime – zested Splash of vodka Bunch of fresh dill Pickled Cucumber ½ cucumber – deseeded 1 shallot – peeled and thinly sliced 1 tbsp. white wine vinegar ½ tsp. mustard seeds 2 tsp. sugar 1 tbsp. olive oil Salt and freshly ground white pepper Dill & Mustard dressing 1 tsp. Dijon mustard 1 tsp. vinegar 1 tsp. brown sugar 4 tbsp. sunflower oil Salt & pepper 2 springs fresh dill – finely chopped
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Pickled Cucumber Thinly slice the cucumber and place into a small bowl. In a small saucepan, put shallot, vinegar, sugar and mustard seeds to boil. Remove from heat and season. Leave to cool slightly. Pour over the cucumber and leave to marinate for at least an hour at room temperature, stirring occasionally. Dressing First whisk mustard and vinegar and sugar in a small bowl. Slowly add the vegetable oil while whisking. Season and add the chopped dill. Dressing can be prepared from 2 days ahead. Assemble the dish Cut the salmon with a sharp, long knife at an angle, into thin slices, 4 slices for each person, onto a round plate. Drain off the liquid from the cucumber and add olive oil. Mix well. Place a spoonful into the middle of the plate. Dress over the salmon with the mustard dressing. Left over gravlax can keep up to 5 days in the fridge.
VOX POP 1
‘What are the criteria which you take into consideration
when hiring a lawyer?’
Vox Pop 1
Vox Pop 3
Kris Rycken , MD at Rolling Geeks
Marcus Muscat Baron Engineer, Manager
There are a lot of good lawyers out there, but the most important thing for me is that he/she has the patience to listen before coming up with possible courses of action available and that there's a good communication throughout the whole process. It might sound obvious, but unfortunately in my experience with lawyers, I find this to be very hard to find.
Vox Pop 2 Stephanie Falzon Company Director
Thankfully, I have not needed the services of many lawyers in my life, but that is not to say that I will not in the future. I think that choosing a lawyer will firstly depend on why we need a lawyer. It is no use going to a divorce lawyer when you need a criminal lawyer. In Malta, being the size that we are, there is definitely someone in the family who is either a lawyer or a notary or married to one. Perhaps you have a member
of your family who works in a lawyer’s firm. I would ask for advice and once a name is recommended, I would google the name and try and find out as much as possible about him/her and the work he/she does. How many cases has he/she had? Have they been successful? What kind of reputation does he/ she have? Does he/she show the same principles and moral values that guide me in my life and work? Hiring a lawyer is never a pleasant thing but sometimes we have no other choice in life but to ask for justice from the courts and to do that, we need the services of a good lawyer!
In essence while choosing a lawyer one would base his decision primarily on the person’s expertise and specialisation within the field of legal interest. Additionally, one would ask friends within the legal sector what their personal opinion may be with regards to the lawyer’s capabilities in relation to the issue at hand but essentially the main deciding factor would be meeting up with the lawyer to discuss the matter in detail. In this discussion, one may thus asses the lawyer’s aptitudes to one’s legal issues and understand how he may tackle the case accordingly. Many a time, it would simply boil down to one’s gut feeling, in that the approach of your legal counsellor would appease one’s concerns with regards to your legal situation. The key issue being, is it acceptable within the Legal Community that a client turns down one lawyer to appeal for the services of another? LIVING LAW
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VOX POP 2
Vox Pop 4 Julianne Grima Psychotherapist
The idea of hiring a lawyer can be quite daunting, primarily because there are just so many criteria to take into consideration. For starters I want a lawyer who is an expert in the field within which my problems are embedded. Now, I consider myself a confident and assertive woman, that means that what I am looking for in a lawyer is not only someone who knows their stuff but a person whose balls are even bigger than mine. That said, it is imperative that my lawyer does give me the time of day, does not rush me in and out of their office and does not make me feel like an obsessive paranoid woman for asking all my questions. Ideally my Lawyer will be a woman and a mother, someone who is accustomed to multi-tasking, excels at time management, is a tigress in her field and a nurturer with me, because if I’m going to a lawyer, I’m not in a good place. This article is being re-published since replies of Stephanie Falzon and Julianne Grima were erroneously swapped in issue 3. Living Law apologises for any inconvenience caused. 40 LIVING LAW