Waste collection cooperative files injunction against Environment Ministry, claiming attempt to unilaterally change the basis for their payment

GreenPak Co-op Society Ltd. a waste collector cooperative has filed a warrant of prohibitory injunction, in a bid to halt six tenders for household waste collection using low emission vehicles and the issuing of recycling certificates in connection with these tenders.

The injuction was filed against WasteServ Malta, the Minister for the Environment, Energy and Enterprise, the Department of Contracts, the Local Government Division and Malta’s regional councils.

Lawyers Antoine Naudi and Tyrone Grech, signing the injunction which was filed on Wednesday before the First Hall of the Civil Court, accused the defendants of unilaterally changing the rate and methodology through which non recyclable waste were referred to as “rejects", on the basis of which payment had been calculated for the past 10 years.

They accused the defendants of re-interpretation of the existing contractual terms.

GreenPak, that represents over 1,200 members, said that after the co-operative had sent a legal letter to the defendants, objecting to what it said was an attempt to unilaterally change the reject rates. 

Wasterv Malta had tried to get around this by commissioning a number of contracts in which it does not, at first glance, appear as a party, but which have the effect of allowing the company to impose different reject rates based on test criteria which it established itself.

“If the bids made now or in future are accepted or the bid adjudication process continues, concludes or starts again, or if some other way is found to give effect to the clauses in the tenders mentioned, the cooperative and its members will suffer irremediable prejudice, as they will not be able to continue using their licences, which are valid up till the end of December 2023, will be bound by obligations over which they have no control as they are the responsibility of third parties and will be subject to penalties depending on these same obligations over which they have no control.”

The “absolute probability” of the introduction of these changes was that the operation would end up going bankrupt, leading to confusion and uncertainty which will not benefit anyone, they said.

The only way the cooperative could intervene in the tender process was through filing the injunction, they said.

It was argued that the cooperative would end up being bound to pay undetermined sums of money, over which they had no control, as the tender contracts would be between the Regional Councils and the collectors.

The cooperative’s members would then be expected to make bids to “buy” the region, in order to be paid by WasteServ on the basis of the recycling certificates issued and the reject rates which would have been unilaterally established by WasteServ itself.

“On one hand you have several levels and grades of the Maltese State regulating the local market, while on the other hand you have the cooperatives who are being forced to finance this State operation. So you have the State issuing calls for tenders and deciding on them, the State laying out the terms and conditions of the contracts, the State choosing the stakeholders the State imposing the obligations, the State imposing the penalties on whoever doesn’t fulfil those obligations, the State, through WasteServe which is a public authority that is unilaterally imposing reject rates and recycling certificates according to that which it chooses to accept and/or contest, the State which is reaping the benefits of this arrangement but the costs, the financing and the legal responsibility…remain that of the cooperative, despite it having no control over what is happening.”

The defendants had not changed their position, despite several meetings and appeals made by the cooperative and Green MT Limited.

This, said the lawyers, was going to lead to the cooperative and operators suffering irremediable prejudice.