Kees De Jong writes:
We, in the Dutch community, resident in Malta, are still grateful for your clear response and clarification with regard to what we considered cases of discrimination in relation to water and electricity bills. Your article helped to correct a number of bills already and we are confident all wrongly billed residents will be satisfied in the end.
I wish to address you now to a front-page article recently published in The Sunday Times entitled Higher Bus Fares For Tourists.
Is this another case of discrimination? Can you kindly comment?
I know the Dutch tourist organisations will not ignore this measure in an EU country.
• The recently announced bus fares, which are part of the public transport reform, have stoked up a controversy because tourists will be charged higher fares than residents. Tourists will be charged €2.60 for a day ticket as against €1.50 for residents whereas week tickets will cost €6.50 for locals and as much as €12 for tourists.
The government clarified the distinction is not based on nationality and that the lower fares will apply to all residents regardless of nationality.
This means the lower rates will apply not just to Maltese residents but also to foreigners who reside here so long as they hold a Maltese identity card. Thus, in the case of the reader, it is clear he will benefit from the lower fares once he is resident here.
The question remains, however, whether the system can be such as to impose different rates for locals than it does for tourists, especially tourists who are EU citizens. This issue has been clearly addressed by the European Court of Justice on more than one occasion.
In one such case, the European Commission took Italy to court on grounds that Italian regional authorities were granting free admission to Italian elderly residents who visit municipal museums and monuments but charged elderly people who were tourists. As in our case on bus fares, the distinction was here based on residence and not on nationality.
In its judgment, handed down in January 2003, the Court made a number of points that are relevant for our case.
Firstly, it stated in no uncertain terms that discriminatory treatment with respect to admission to museums that affect foreign tourists who are EU citizens is prohibited because it breaches the EU Treaty (articles 18 and 56).
Secondly, it said the Treaty prohibits not just discrimination which is direct and, obviously, based on nationality but also discrimination that is indirect but that still leads to the same result.
The Court stated that a distinction based on residence is an indirect form of discrimination because it is liable to affect mainly the nationals of other EU countries since, obviously, non-residents (tourists) are in the majority of cases foreigners. So it is still prohibited.
Thirdly, the Court rejected Italy’s defence that the decision was based on economic considerations. It said it is only in cases justified on grounds of public policy that unequal treatment could be accepted. Economic aims cannot constitute grounds of public policy justifying a restriction of a fundamental freedom granted to EU citizens by the Treaty.
Finally, the Court addressed Italy’s argument that, since residents were the ones who paid taxes, it was only fair they should enjoy the benefit of free admission. The Court rejected this too stating that, in this case, there was no direct link between the taxes paid by the residents and the preferential rates for admission to museums. This argument, it said, could apply if there was a link between, for instance, the taxation paid for pension or insurance schemes and the deductibility of the contributions. But there was no such link here. So this line of defence was dismissed.
For these reasons, the Court held that, by allowing discriminatory, advantageous rates for admission to museums and monuments granted by local authorities only in favour of Italian nationals and persons resident within the territory of those authorities, who are aged over 60 or 65 years, and by excluding from such advantages tourists who are nationals of other member states and non-residents who fulfil the same objective age requirements, Italy had failed to fulfil its obligations under the Treaty.
In other words, the Court said that different rates for tourists who are EU citizens breached EU law.
In the case of the bus fares announced by the Maltese authorities, the distinction based on residence being used to justify significantly different charges for tourists appears to have very similar elements to the case decided by the European Court of Justice. As such, it might be appropriate for the Maltese authorities to look into the matter again as different bus fares for tourists may well be illegal under EU law.
www.simonbusuttil.eu
Dr Busuttil is a Nationalist member of the European Parliament.