MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
of its monitoring requirements. Through these inspections, the REWS identified two vessels that were burning marine gasoil (MGO), which had an excess of 0.1% sulphur content while at berth. In both cases, the REWS performed an investigation and fines were issued according to the established REWS Decision No 14/2019. By Decision No 5 of 26 October 2021, the REWS established certain fines applicable to any per - son in charge of a vessel in the event of absent MARPOL samples and/or absent documenta - tion, with respect to the marine fuel of the vessel. 8.3 Trade Sanctions All United Nations (UN) sanctions, in addi - tion to EU sanctions, are directly applicable in Malta and are binding in their entirety as part of domestic law, pursuant to the provisions of the National Interest (Enabling Powers) Act, Chapter 365 of the Laws of Malta. Conversely, Office of Foreign Assets Control (OFAC) sanctions are not directly enforceable in Malta, as observed by the Civil Court (First Hall) in its judgment in World Water Fisheries Limited v Bank of Valletta plc, delivered on 29 September 2020. Nevertheless, most local authorities and regulators do recom - mend that economic operators, as well as the public in general, exercise caution in this regard. Undeniably, the international sanctions land - scape has changed significantly in the last year. The war in Ukraine has brought with it unprec - edented waves of new domestic, regional and international sanctions. As a member state of the EU, Malta has implemented the nine sanc - tions packages adopted by the EU in response to Russia’s invasion of Ukraine. These sanctions have naturally had a significant effect on trade in general and, in particular, in the shipping and energy sectors.
The Sanctions Monitoring Board is the compe - tent local authority responsible for the imple - mentation of all UN and EU sanctions in the Republic of Malta. The Board is composed of representatives from various relevant govern - ment ministries, governmental authorities, regu - lators and enforcement bodies. In the exercise of its functions, the Board is empowered to refer to other relevant authorities (including the Malta Police Force) for action, assistance or informa - tion. In practice, Maltese authorities do tend to co-operate extensively when enforcing applica - ble trade sanctions. The National Interest (Ena - bling Powers) Act also outlines the punishments applicable for sanction breaches, which could include hefty penalties and criminal charges. Under EU sanctions law, there are generally two types of permissible exceptions: • exemptions – where particular activities or goods are expressly carved out from an appli - cable sanction(s); or • derogations – where specific authorisa - tions would be required from the competent authority in a member state. The Sanction Monitoring Board would also be the competent authority to give guidance on exemptions as well as the authority in Malta empowered to grant any authorisation for any derogations envisaged under the EU sanctions framework. From a shipping perspective, it is also worth mentioning that the Authority for Transport in Malta issued a Merchant Shipping Notice (No 175) in October 2021 to inform that the use of Maltese ships in violation of any applicable sanc - tions “...may be considered as being against the interest of Malta and of Maltese shipping and may lead, inter alia, to closure of registry”.
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