Issue link: https://maltatoday.uberflip.com/i/1527863
8 maltatoday | SUNDAY • 13 OCTOBER 2024 LAW & LETTERS Law Report A licensed cargo agent may be allowed to pick up merchandise from restricted areas controlled by the Customs Depart- ment. But in other areas, others may do the same work. This was held in a judg- ment delivered by the First Hall of the Civil Court presided by Judge Anna Fe- lice on 9 October 2024. The Parties to the case were Carmelo Meli Limited vs Tax Commissioner. The plaintiffs explained in their sworn application that they are a licensed cargo clearance and forwarding agent and they form part of the Burdnara Bulk Cargo Group. Article 3 of the Cargo Clearance and Transport Act, states: "No person shall act as a cargo clear- ance and forwarding agent except under and in accordance with a customs permit granted in that behalf by the Comptrol- ler" Article 9 allows the cargo agent to trans- port merchandise in and out of customs shed and bonded stores. The Plaintiffs pointed out that another company which imports cement are allowed to transport the cement contrary to what is stated in the Act. The Burdnara Bulk Cargo Group have complained on this to the Customs Department. So far, they have been ig- nored by the Department since 2017 when the Group presented a judicial protest. The Plaintiffs argued that this constitutes dereliction of duty since the Department is meant to make sure that the law is observed. In fact, the Plaintiffs asked the Court to hold the Defendant responsible for its failings and order it to pay damages. The Commissioner for Taxes, which now encompasses the Customs Depart- ment filed a statement of defence. It first argued that it was not an interested party to this case. On the merits of the case, the Commissioner held that the permits that cargo agents have is for them to make declarations to the customs department and to withdraw merchandise. The cus- toms department administers a number of properties which are listed in the sub- sidiary legislation of the Customs Ordi- nance. Cement is stored at Coal Wharf and this is not listed in the subsidiary legislation 37.05. Consequently, it has no control over who enters Coal Wharf and picks up the merchandise. The Plaintiffs quantified the damages suffered to €202,951. The evidence showed that a non-Mal- tese company, Eurochem imports ce- ment to Malta and sells it to the Maltese market. The General Workers Union al- so testified in the case and held that In- ter Cement, which is not part of the pro- ceeds, imports 35% of the cement market. The company is a cargo agent itself and therefore, this is having a negative impact on licensed cargo agents. The Customs Department testified and explained that wharf where cement is un- loaded is not controlled by it and there- fore, it has no control on who goes in and out of the area. When this issue was raised, the law was amended in 2021. As to the issue of whether the Commis- sioner of Taxes has a juridical interest in this case the Court held that it had be- cause this is a damages cases since the plaintiffs are alleging that the Commis- sioner did not follow the law. Therefore, the Commissioner has a juridical interest in the case. As to the merits of the case, the Court held that the period in which the Plain- tiffs are stating that they suffered dam- ages, Fuel Wharf was not a customs area as listed in the law. Following complaints lodged, the law changed in 2021 to in- clude Fuel Wharf as a customs area. The Court also took a point mentioned by the Commissioner of Taxes that according to European Union law the transport of merchandise in public roads does not require a licence. However, the issue at stake is not about public roads, but in a particular area such as the customs ar- ea. This issue does not concern the free movement of goods in Malta but who may enter restricted zones. As to Arti- cle 9 of the Cargo Clearance and Trans- port Act, this relates to a licensed cargo agent that may withdraw cargo from the customs restricted areas, unless it is the owner of the merchandise. The court em- phasised that the law provides that this is limited to restricted areas controlled by the Customs Department. However, at the time Fuel Wharf was not such a re- stricted area. There is no law binding the department to regulate what is going on in public spaces. The laws allow the minister re- sponsible for customs to make regula- tions on the work carried out by licensed cargo agents. Therefore, it is the minister who has the authority to make regula- tions on this matter and not the Customs Department. The Court then moved to turn down the Plaintiffs requests. Licensed cargo agents have exclusivity only in customs restricted areas LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates Letters to the Editor Remove yellow road markings near airport THE airport junction project has long been completed and has undoubtedly helped ease traffic flow in the area. But what irks me is that after all this time, the approach road from Gudja still contains yellow road markings from when the project was still under construction. These road markings are confusing for regular motorists, let alone unsuspect- ing tourists reaching the airport with their rented vehicles. These markings no longer make sense and should be removed and replaced with proper white markings identifying the lanes as cars ap- proach the bend to the airport junction. It bothers me that temporary signage and road markings introduced during the construction phase of a project are left in place after works are completed. The contractor should be obliged to remove them as part of the contract and failure to do so should be penalised. N. Vella Mqabba Regulate smartphones like cigarettes I recently read with interest a news feature that appeared on the website Politico, quoting Maltese World Health Organisation expert Natasha Azzo- pardi Muscat on the need to regulate smartphones. She urged countries to regulate these devices in the same way as cigarettes so as to combat social media's rising neg- ative impact on young people's mental health. She advocated for measures such as age limits, controlled prices and no-go zones, similar to what happens with tobacco products. I'm not sure how this can work given the proliferation of such devices but I agree with her. When I see children, not only young people, hooked up to their smart- phones rather than running around, playing and talking with friends, I cringe because they are robbing them- selves of the human relations they so need to help them develop as holistic beings. These phones allow children and young people to be permanently and continuously connected to social media platforms, which are nothing more than virtual worlds that create a false reality. It is no wonder that a WHO study, quoted in the same news report, found that problematic and addiction-like gaming and social media behaviour is on the rise among adoles- cents in Europe. I don't think Malta is an exception and it would be good if our MPs heed Azzopardi Muscat's advice. Jennifer Grech Mosta