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What does the recent ruling in Barbulescu v Romania mean for employers monitoring employees communications in the future?

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On the 5th of September 2017 the Grand Chamber made an important judgement in a case concerning the monitoring of an employee’s electronic communication by a private employer. This case involved the dismissal of Mr. Barbulescu from his job due to the uncovering of his use of a work email for personal correspondence.

Cases concerning email privacy in the workplace continue to become a contested issue, where in the past Courts have tended to side with the employers. However the judgement in this case favoured Barbulescu ruling that the company’s actions were in direct violation of his Article 8 rights, as per the European Convention on Human Rights (the right to privacy).

In essence, moving forward this judgement does not mean that employers cannot monitor employees’ communications or that employees cannot be dismissed for using internet at work for personal reasons. Rather this judgment lays out certain criteria that should be followed to ensure that when monitoring employees’ communications there is no violation of their Article 8 rights. The criteria to be followed as laid out in the judgement are as follows;
• The employee should be notified of the possibility that the employer might monitor any communications. This notification must be given in advance of the monitoring and clearly indicate the nature of the monitoring;
• The extent of the monitoring on behalf of employer is an important factor in deciding whether a violation has occurred. Factors to be assessed are whether all communications were monitored, the monitoring of actual content and the extent to which this occurred and the number of people who had access to results of the monitoring;
• A legitimate reason must be provided to justify monitoring communications and assessing their actual content, more justification is required in regards to assessing actual content;
• Assessment will occur into whether the employer could have achieved their aim without directly accessing the full contents of the employees’ communications;
• The consequences of the monitoring for the concerned employee and how the employer used the results, particularly were they used to achieve the declared aim;
• Whether the employee has been provided with adequate safeguards, especially where monitoring operations were of an intrusive measure. These safeguards should be in place to ensure employer cannot access the actual content of the communications, unless employee has been notified in advance of that eventuality.

These guidelines should be followed to ensure that employers do not violate the Article 8 rights of employees when monitoring any form of communications.

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Fitch upgrades Malta to A+

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Credit-rating agencies continue to enhance Malta’s proposal as an attractive investment jurisdiction. The Malta Financial Authority Services (MFSA) in their monthly newsletter reported on the upgraded credit rating from credit-rating agency Fitch. Fitch upgraded the credit rating for Malta to an A+, considering the rating to be stable.

Along with this upgrade Fitch commented on the countries improved financial position, stating that it expects gross general government debt to decline to 50% of GDP by 2019. Further it is expected that GDP growth in Malta will remain strong with primary surpluses being registered. According to Fitch Malta’s GDP is expected to grow at a rate of 4.3% for this year, 3.7% for 2018 and 3.5% in 2019. The annual median growth rate of GDP is currently at 2.9% placing Malta well above the average for GDP growth, according to these forecasts.

Furthermore, Fitch expects investment to pick up in 2019 due to new EU funds becoming available to Malta and the launch of large transport, health and education projects.

DBRS, another credit rating agency, affirmed Malta’s credit rating at A while upgrading the trend on the ratings to a positive. DBRS expects the improvement in Malta’s fiscal position over the past three years to be sustained and expects a further reduction in the public debt ratio.

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Malta Financial Services Industry Continues to Grow

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Financial services in Malta continue to experience steady growth with a noticeable increase in licences and authorizations carried out for various  types of activities. The Malta Financial Services Authority (MFSA) through the publication of their Annual Report 2016 commented on such changes and the individual activities which seemed to have attracted the greatest amount of growth.

Investment services increased at a steady rate, at the closing of 2016 there was a net increase of seven licences from the previous year. The greatest increase observed was in the issuing of Category 2 licences where the closing of 2016 saw the issuing of eight new Category 2 licences. Not only was growth observed in the area of investment services but further an additional 113 investment funds were licensed by the Authority during 2016.

Another significant area of continued growth observed in 2016 was in relation to financial services surrounding pensions. The replacement of the Special Funds (Regulation) Act with the Retirement Pensions Act in early 2015, which had to be fully complied with by 31 December 2015, gave way to even more growth in financial services in 2016. As of the end of 2016, 10 new retirement schemes were registered under the Retirement Pensions Act. Further growth due to pensions was also seen through the registration of three new companies to act as Retirement Scheme Administrators under the new act.

 

The closing of 2016 saw financial services as a whole experience overall growth in many areas. Insurance business sectors experienced further growth with three new undertakings given authorisation by the Authority to carry on business in terms of the Insurance Business Act. In other sectors under the Company Service Providers Act there was a further 74 new registration certificates issued by the Authority.

Throughout the course of 2016 the Register of Companies registered 5,166 new companies and 103 partnerships.

 

Contact us today to find out more about licensing process and requirements on on +356 20103020 or by mail at info@ellulschranz.com

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Proposed Regulatory Changes for a Class-4 MGA licence

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Some regulatory changes of a Malta Gaming Act are just around the corner, and the consultation is currently open to the industry players. On the 12th July 2017, the Malta Gaming Authority (“MGA”) has published a white paper which aims to overhaul the regulatory regime for gaming in Malta.

We prepared for you a short summary of what changes are proposed in the current working paper. If you currently hold an MGA Class 4 licence or are in the application process for one, the below is designed specially for you!

Class 4 license will be replaced with the MGA B2B license automatically for those operators who already hold the license. Here is the comparison of the current situation and proposed changes in terms of costs and fees payable to the Regulator for a B2B license.

 

APPLICATION FEE

 

 

Current Proposed
Application Fee € 2,330 € 5,000
License validity 5 years 10 years
License renewal € 1,500 (payable before the lapse of the 5th year) € 5,000 (payable before the lapse of the 10th year)

 

 

ANNUAL LICENSE COST

 

Current Proposed
Annual Fee € 8,500 No annual fee
Gaming Tax [€ 4,600 per month]

€55,200 TOTAL PER YEAR

Depends on revenue bracket

Annual revenue up to €5,000,000 – € 25,000

Annual revenue between €5,000,001 and € 10,000,000 – €30,000

Annual Revenue over €10,000,000 – € 35,000

TOTAL ANNUAL LICENSE COST € 63,500 Maximum – € 35,000

 

As the White Paper is still in the stage of a consultation, the changes brought to your attention are not final, and not all of them might be enforced. Nevertheless we work hard to keep you updated and aware of how the overhaul might influence your business activity in the future. Contact us today on +356 20103020 or by mail at info@ellulschranz.com to discuss possible opportunities which may arise after the changes are enforced. Our team is well-equipped and experienced and will be happy to advise you on legal, gaming, corporate and tax matters to ensure efficiency and optimization of your business activity!

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The Malta Gaming Authority Published a White Paper Proposing Major Reforms to Malta’s Gaming Legal Framework

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The Malta Gaming Authority has published a White Paper proposing major reforms to Malta’s gaming legal framework. The reforms would repeal the existing legislation and replaced it by a single primary Act called the Gaming Act together with subsidiary legislation covering horizontally the main areas of regulation as well as a series of directives and guidelines issued by the Malta Gaming Authority as the single regulator of this sector.

The changes would include replacing the current multi-licence system with  system in which there will be two different types of licenses – a Business-to-consumer (B2C)  licence and a business-to-business licence (B2B) – covering different types of activities across multiple distribution channels. Taxation would be streamlined into one flow with two main layers and It also would exempt B2B licensees from gaming tax.

The new law would also, according to the MGA, broaden the regulatory scope to increase MGA oversight. It would also widen the MGA’s powers under the compliance and enforcement functions to better achieve regulatory objectives, in line with concurrent developments on anti-money laundering and funding of terrorism obligations.

The proposed law would strengthen the player protection framework by formalizing the mediatory role of the MGA’s player support unit and would segment the Key Official role into various key functions within a licensed activity, requiring approval, for direct scrutiny and targeted supervisory controls, thereby raising the bar for persons of responsibility within a gaming operation.

The changes would allow new and more effective processes for  criminal and administrative justice, including the allocation of appeals from decisions of the authority to the Administrative Review Tribunal and the introduction of a distinction between administrative and criminal offences.

The framework would also introduce the concept of administration to protect an operation in distress and, if necessary, to assist the winding down of an operation, thereby protecting jobs and player funds.

 

Contact us today  on +356 20103020 or by mail at info@ellulschranz.com to find out how new changes may effect your iGaming business.

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Malta Residence and Visa Programme (MRVP) changes enforced

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The new Malta Residence and Visa Programme  ( L.N. 189  of 2017 ) criteria were published in the Government Gazette of Malta No. 19,821 dated  04-Jul-2017. These amendments will come into force as with immediate effect and are not a substitute of L.N. 288 of 2015.

A summary of the key salient changes:-

  • The thirty thousand euro (€ 30,000) contribution fee now covers the Main Applicant, spouse, and the children of the Main Applicant  and/or the Spouse at application stage.

 

  • Introduction of an additional five thousand euro (€5,000) contribution, non-refundable per parent or grandparent of the main applicant or of the spouse at application stage.

 

  • Removal of the 27 years of age capping for the children of the main applicant and/or the spouse ( this means that children over the age of 27 at the time of application can be included, and that children do not lose the residency rights on their 27th birthday).

 

  • Removal of the requirement for the Main Applicant and his/her dependants to  spend outside of Malta a period that exceeds either six consecutive months or an aggregate period of ten months at any four year period from the appointed day.

 

  • Main Applicant and his/her dependants will become eligible to apply for Long Term Residence subject to the respective requirements being satisfied.

 

  • Approved children of the Main Applicant and/or the Spouse will retain residency rights as long they are not economically active and/or married at application stage. 

 The option for the Main Applicant, to apply against a non-refundable supplementary administration fee of five thousand euro non-refundable (€ 5,000) per person  , to include on the Main Beneficiary certificate (subject to a successful due diligence check) :

 

  • The spouse of a previously approved dependent child of the Main Applicant and/or the spouse

 

  • The child, born or adopted after the approval date, of a previously approved dependent child of the Main Applicant and/or the spouse, or of the previously approved dependant child’s spouse.

 

Feel free to contact us directly on +356 20103020 or by mail at info@ellulschranz.com to find out how E&S can help you in ‘making things happen’.

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VISA-FREE TRAVEL FOR UKRAINIANS

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The European Parliament today gave final approval to ease travel restrictions, allowing Ukrainians with biometric passports the right to enter the European Union for up to 90 days out of any 180 day period visa free for tourism, for visiting relatives or friends, or for business purposes, but not to work.

The measure, however, will not apply to all EU states, as UK and Ireland, plus Iceland, Liechtenstein, Norway and Switzerland regulate entry requirements according to their respective national laws.

The legislation still needs to be formally adopted by the Council of Ministers. It is likely to enter into force in June, 20 days after it is published in the Official Journal of the European Union.

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NEW EU CORPORATE TAX RULES ANNOUNCED

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The European Commission has announced the revised Common Consolidated Corporate Tax Base (CCCTB), a new plan to improve the way in which companies are taxed in the Single Market.

The EU’s aim is to make it easier and cheaper to do business and to act against tax avoidance by implementing new strategies, for example:
1. Obligating companies to have a single rulebook for calculating their taxable profits throughout the EU;

2. Eliminating mismatches between national taxation systems which aggressive tax planners currently exploit;

3. Removing primary vehicles for tax avoidance – transfer pricing and preferential regimes;

4. Addressing the bias in the tax system towards debt over equity by providing an allowance for equity issuance which will encourage companies to seek more stable sources of financing and to tap capital markets;

5. Taxing companies with global revenues exceeding €750 million a year where they really make their profits and tackling loopholes currently associated with profit-shifting for tax purposes;

6. Providing benefits in terms of financial stability for companies with a stronger capital base.

Although corporate tax rates are not covered by the CCCTB, the new strategy will create a more transparent, efficient and fair system for calculating the tax base of cross-border companies and will stop them from shifting profits to non-EU countries.

Companies will now be able to file one tax return for all of their EU activities which will decrease the time spent on annual compliance and setting up a subsidiary. Companies will also be able to offset profits in one member state against losses in another.

These proposals will be submitted to the European Parliament for consultation and to the Council for adoption.

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PRIVATE TRUST COMPANY

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On 25th April 2016, Act XI of 2014 amended the Trusts and Trustees Act (TTA) which introduced the concept of Private Trust Company to Maltese law.

 

A Private Trust Company (PTC) is an entity authorized to act as a fiduciary and is an alternative to professional trust company. Such PTC is generally prohibited from soliciting business from the general public.

 

Benefits of PTC:

 

·         A PTC gives prospective settlors or family members the opportunity to be involved in its management;

·         Family dispute avoidance and more effective communication with those beneficiaries not directly involved, through which their needs may be ascertained;

·         The settlors and the beneficiaries can make a positive contribution to the management;

·         There is the possibility of reducing administrative costs.

 

According to Article 43B of the Trusts and Trustees Act, a PTC is a trustee company which shall upon its registration be permitted to:

 

·         act only as trustee in relation to

a specific settlor or settlors of family trusts and in any case not more than five settlors at the time;

·         provide administrative services only in respect of a specific family trust or trusts.

For the sake of clarity, a family trust aforementioned, is a trust created to hold property settled by the settlor/s for both present and future needs of family members of family dependants who are definite and can be ascertained.

 

A PTC is not required to go through the full authorisation process with the Malta Financial Services Authority (MFSA), but need merely register with them. For the purposes of this registration procedure, the MFSA has issued rules on 29th April 2016 regulating trustees that are subject to this procedure. These rules have laid down additional requirements and conditions relating to the activities of a trustee company, the procedure of registration, the duties of the Directors and any other matters that the authority considers appropriate.

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MALTA GAMING AUTHORITY PUBLISHES THE “FIT AND PROPER” GUIDELINES ON THE KEY OFFICIAL REQUIREMENTS

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The MGA’s fit and proper guidelines are one of a series of measures to be launched by the MGA in order to ensure a consistent and transparent approach in its regulatory outreach in the interests of all stakeholders and customers alike. These Guidelines set out the minimum criteria applicable to

all relevant persons falling under all the activities regulated by the MGA in accordance with applicable law.

 

These may be accessed on:

 

http://www.mga.org.mt/wp-content/uploads/Fit-and-Proper-Guidelines-03092015.pdf