Issue link: https://maltatoday.uberflip.com/i/1462882
maltatoday | SUNDAY • 27 MARCH 2022 19 LAW COMMERCIAL THE decision to impose a fine from an administrative authori- ty may be subject to judicial re- view even though that fine was paid. This was held in Avukat Dr Malcolm Mifsud u Avukat Dr Cedric Mifsud -v- Il-Bord ta' Sorveljanza dwar Sanzjonijiet, decided by the First Hall of the Civil Courts on 11 March 2022. The Court was presided over by Judge Audrey Demicoli. The Plaintiffs filed a sworn application, in which they asked the court to declare that a decision taken by the Sanc- tions Monitoring Board was ultra vires in terms of Article 469A(1)(b) of the Code of Or- ganisation and Civil Procedure and that the Board is responsi- ble for damages. The Board filed a statement of defence and held preliminarily that the decision subject to this case, is a fine of €800 and once it was paid, then the Plaintiffs accepted the imposition of the file. The Board also held that it is not a public authority as defined in Article 469A of the Code of Organisation and Civil Procedure (COCP). The Court analysed the case in that the Board had sent a let- ter in September 2022 of Aegis Corporate Services concerning services rendered to a Russian national, who was subject to sanctions issued by the Europe- an Union, as he had registered his yacht in Malta. The Board held that this went contrary to Article 17(6) of the National In- terest (Enabling Powers) Act. Dr Cedric Mifsud was the resident agent and the Board concluded that since he was a shareholder of Aegis Corporate Services Limited, the company was responsible. The Company still sent all the information on the sanction screening. Dr Mifsud explained that the registration of the ves- sel and the activity of the resi- dent agent was preformed by the law firm and not by the cor- porate services company. The vessel was in fact owned by an- other Russian national. Just the same the Board fined the law firm €800 in terms of the Arti- cle 17(6) of the National Inter- est (Enabling Powers) Act. Dr Mifsud explained that the firm paid the bill because if it was not paid by 15 March 2021, the fine will increase daily. On the first plea, that once the fine was paid, then no further action may be taken, it result- ed that the Board had sent an email on 29 March 2021 , say- ing that if the fine is not paid on that day, the fine would in- crease. The reply was that the payment was being effected, however, this was being done under protest. In the reply email Dr Mifsud wrote: "Despite payment being made, the imposition of the fine will be contested before the ap- propriate forum. The fact that there is no recourse to an ap- peal does not mean we cannot contest it. We are of the firm and learned opinion that the decision is flawed both from a procedural aspect and a legal one." The lawyer sent a proof of payment. The Court held that it was clear from the exchange of emails that the fine was be- ing contested. The Board ar- gued that the maximum fine is €1,000 and therefore, the law- yers would have not paid and left it accumulate to the max- imum. The Court disagreed as the fine was a sanction irrespec- tive of the amount of the fine. The Court made reference to previous cases where fines although fines were paid, the court ordered their refund. In William sive Willie Grech u Anna Grech -v- Awtorita ghat- Trasport f'Malta, the Court on 18 September 2012, had or- dered that the Plaintiffs of that case were refunded with over- charged registration tax. The tax was paid under protest. In Public Broadcasting Services Limited -v- Awtorita tax-Xan- dir, decided on 11 May 2009 the Court held the law binds us to obey the law and pay a fine. If it contested and proved that that fine was unjust then that person should receive a refund. As to whether the Board is a public authority in terms of the judicial review, Article 469A of the COCP states that these public authorities must issue li- cences and warrants. The Board does neither and all it does is take decisions, give recommen- dations and advice. The Plaintiffs held that Ar- ticle 469A of the COCP gives a wide interpretation of the term "Board" and the Sanctions Monitoring Board falls under the definition, because it pre- forms administrative act and it gave an administrative fine and therefore, it exercises admin- istrative powers. Article 468A states: "'Public authority' means the Government of Malta, includ- ing its Ministries and depart- ments, local authorities and any body corporate established by law and includes Boards which are empowered in terms of law to issue warrants for the exer- cise of any trade or profession." The Court agreed with the Plaintiffs, as the law uses the word "includes" and therefore, Boards should be included as public authorities. In fact the National Interest (Enabling Powers) Act, shows that it is a regulatory board. The Court then moved to re- ject the two pleas and ordered that the case continue. Judicial review may take place on fines, even though they have been paid LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates M&Z p.l.c. celebrates launch of share trading on Malta Stock Exchange M&Z p.l.c. celebrated the start of trading in its shares on the Malta Stock Exchange with the Com-pany's Executive Direc- tor Paul Camilleri ringing the market's opening bell at the Ex- change in Val-letta. He was ac- companied by (from left) Erika Pace Bonello, Human Resourc- es Director, Emma Pul-lici- no, Director, Greta Camilleri Avallone, Managing Director, Thomas Agius Vadala, Finance Director and Matthew Camill- eri, non-Executive Director. M&Z p.l.c., which represents many leading global FMCG manufacturers and is respon- sible for the importation, mar- keting and distribution of a vast array of renowned brands in Malta, recently com-plet- ed an oversubscribed offer for the sale of 11,550,000 ordinary shares in the Company, which are now being traded on the Malta Stock Exchange. More information is available at https://mz.com.mt/