Issue link: https://maltatoday.uberflip.com/i/1546781
14 maltatoday | SUNDAY • 27 SEPTEMBER 2026 NEWS Court dismisses Maltapost bid to overturn €10,000 postal delivery shortfall charge Postal operator argued extreme heat made outdoor work unsafe and, at times, impossible for postpersons to complete their rounds. A tribunal and the Appeals Court were not persuaded THE Court of Appeal has thrown out Maltapost's attempt to over- turn a €10,159 charge imposed af- ter it fell short of its postal delivery targets for 2019. The court ruled the postal op- erator had failed to show that the summer temperatures had made it impossible to meet its obliga- tions. Judge Lawrence Mintoff upheld an earlier decision by the Admin- istrative Review Tribunal, which dismissed Maltapost's challenge to the Malta Communications Authority's demand. Under its licence, Maltapost must deliver 95% of ordinary local mail on the next working day after posting. For the financial year running from October 2018 to September 2019, the company achieved a de- livery rate of 93.21%, falling 1.79 percentage points short of its tar- get. It did, however, narrowly clear its two-day delivery target, reach- ing 98.1% against a required 98%. In August 2020, the MCA in- formed Maltapost that it owed €10,159 under the "collective compensation scheme". The postal operator challenged the demand before the tribunal and, having lost that battle, took its case to the Court of Appeal. 'Not a fine at all' Maltapost said that the €10,159 charge was, in substance, a fine. If that were the case, the company argued, the authority should have followed the procedure for impos- ing penalties, including notifying Maltapost in advance that a fine was being considered and giving it a chance to respond. Both the tribunal and the Court of Appeal dismissed that inter- pretation. The tribunal explained the procedure applied to meas- ures taken under a separate article dealing with fines for breaches of the law. That provision did not cover the charge in question. The €10,159 was instead com- pensation payable under a scheme introduced in 2005. Under the scheme, Maltapost must pay the MCA a percentage of the annual turnover of the rel- evant postal product, multiplied by 0.25, if it fails to meet its next- day delivery target. The tribunal calculated the amount by mul- tiplying the €2,270,093 turnover from local single-piece mail by the 1.79% shortfall and then applying the 0.25 factor. It was a prescribed calculation, the courts found, rather than a fine imposed at the authority's discretion. Maltapost given a chance to make its case Maltapost also argued that it had not been given a proper opportu- nity to explain its position before being presented with the bill. The tribunal was not persuaded. It pointed to a lengthy paper trail between the company and the au- thority, beginning well before the charge was issued. In July 2019, Maltapost had asked the MCA to grant it a con- cession from its obligation for July and August, warning that "heat- waves have led to increased levels of employee unavailability, signif- icant attrition in employee reten- tion and increase in on-the-job accidents." The request came during a par- ticularly hot summer. At the time, June 2019 was the hottest June re- corded in Malta since 1923, while temperatures reached 39.6°C in July. The MCA turned down the request, saying it was not in a po- sition to approve a two-month concession before the summer had properly begun. It also said temperatures above 32°C were a common occurrence in Malta and "should definitely not be consid- ered as a force majeure". Maltapost tried again in October 2019, submitting more detailed statistics, and returned to the issue in February 2020. Both attempts came before the MCA issued its decision in August 2020. The tribunal concluded that it was "certainly not true" that Mal- tapost had been denied the oppor- tunity to make submissions. The authority had simply rejected the arguments put forward. Was the heatwave 'force majeure'? Much of the case turned on whether the extreme heat of summer 2019 amounted to force majeure. Force majeure covers events that are genuinely beyond a party's control and make it im- possible, rather than merely more difficult or expensive, to fulfil an obligation. The tribunal examined the doc- trine at length, drawing on Mal- tese, Italian and French case law. The authorities cited in the judgment distinguished between circumstances that make perfor- mance more onerous and those that make it impossible. Finan- cial or operational difficulties, the tribunal said, could not in them- selves amount to force majeure. The evidence did little to bolster Maltapost's position. Leanne Rapinett of the Met Of- fice testified that the summer of 2019 had seen only two genuine heatwaves—one lasting three days in June and another lasting three days in July. Under the Met Office's defini- tion, a heatwave involves temper- atures at least five degrees above the seasonal average for three consecutive days. August record- ed no heatwave, Rapinett said. Most heat warnings that summer were yellow. Only two reached or- ange, and none reached red. Postal workers were still delivering in the afternoon Joseph Bugeja, a postal workers' union representative, spoke about the difficulties faced by postal workers working in the heat, in- cluding a collective agreement allowing them to stop work once authorised hours had ended. Postpersons were expected to finish their rounds within their paid working hours, Bugeja ex- plained, but the pressure to clear their deliveries could see them working well into the afternoon. He recalled workers calling to say they were still out delivering at 2pm or 3pm, despite their work- ing hours having ended. But the tribunal found his evi- dence remained general and did not establish that Maltapost's op- erations had been rendered im- possible during the financial year in question. The Court of Appeal upheld the tribunal's conclusions. It agreed that "high tempera- tures in summer" did not amount to force majeure and said Mal- tapost had failed to show it had taken adequate steps to adapt its working practices. The margin-of-error argument Maltapost also sought to rely on a margin of error in the perfor- mance report prepared by Infor- ma Consultants. The company argued that its 1.79% shortfall fell within the re- port's stated margin of error of ±2.27% and so should not count as a miss at all—the true figure could, mathematically, be as high as 95.47%. But that argument fell through. The court warned that Malta- post's interpretation was one-sid- ed: If the margin of error were applied in the company's favour when it fell short, it would also have to be applied against it when its performance appeared to ex- ceed the target. The MCA made a similar point, saying Maltapost had to remain consistent in its arguments and could not expect factors to be ap- plied only when they worked in its favour. The compensation scheme did not provide for any margin-of-er- ror adjustment, the court noted, and it declined to read one into the rules. Acting as legislator, regulator and judge? Maltapost's final argument was that the MCA had improperly combined legislative, administra- tive and judicial functions within a single body. The authority had set the deliv- ery targets, devised the compen- sation formula and then decided that Maltapost had failed to meet its obligations. But the Appeals Court was not persuaded. It found the MCA had "acted within the parameters and powers given to it by law", operating as the competent regulator of the postal sector. Nothing in the process indicat- ed that the authority had acted "with impunity" or breached Mal- tapost's right to a fair hearing, the court held. The appeal was dismissed on all grounds and the tribunal's de- cision confirmed in its entirety. Maltapost was ordered to pay the costs. ĦALEY XUEREB hxuereb@mediatoday.com.mt Maltapost said that the €10,159 charge was, in substance, a fine. If that were the case, the company argued, the authority should have followed the procedure for imposing penalties, including notifying Maltapost in advance that a fine was being considered and giving it a chance to respond.