The government was obliged to issue credits and exemptions immediately once approved waste recovery schemes were set up, registered and started running, the Ombudsman has decided.
Producers could not “be expected to enter an approved scheme, pay their dues towards the approved scheme and then pay eco contributions.
“This would be unreasonable and unfair on the producer and, ultimately, on the consumer who in the end always foots the bill by buying marked-up products. The consumer cannot be expected to pay twice for waste recovery.
“This is unfair and, it may be further argued, implies that somebody is making an unjustified enrichment,” the Ombudsman, Chief Justice Emeritus Joseph Said Pullicino, ruled.
“The eco contribution,” he added, “is not and should not be turned into another source of income for the government.”
Giving his final opinion on a complaint initiated in 2009 by Green Dot Malta, operators of the waste recovery scheme GreenPak, the Ombudsman concluded scheme members were entitled to eco tax exemptions or tax credits.
Dr Said Pullicino said the government seemed to be relying on the Eco Contribution Act, which, on the one hand imposed an eco tax and, on the other, opened up the possibility of granting credits.
He noted the government rested its case on the use of the term “may” in the law when it came to granting exemptions or credits. However, the Ombudsman concluded that, at law, the term “may”, as opposed to “shall”, should not be regarded as a green light giving the government absolute discretion. Once producers fulfilled their obligations in terms of waste recovery, they would be entitled to receive the tax credit or refund, he insisted.
Dr Said Pullicino specified that the “may” element in the provisions of the law was an obligation on the government’s part conditional on the producers recovering waste through an approved scheme. In fact, he went on, the message of the legislator was clear in that if a producer participated in an approved scheme and met all the formalities laid down in the law such producer would be entitled to exemption from the eco contribution.