Malta risks EU court action over port workers’ protected regime

The European Commission has sent Malta a reasoned opinion to Malta over the quota of  Maltese port workers regime, who enjoy a preferential scheme for family members.

The Maltese port workers’ regime consists of a quota and authorisation scheme for all port workers and, within that system, a preferential scheme for family members of incumbent port workers. 

Malta now has two months to respond and take the necessary measures. Otherwise, the Commission may decide to refer the case to the Court of Justice of the European Union. 

The European Commission had previously expressed concerns that the legal and regulatory framework for port labour in Malta is not in compliance with the Treaty on the Functioning of the EU as far as the free movement of workers, freedom of establishment and freedom to provide services is concerned. 

During Malta’s accession to the EU, the country had been granted a derogation to phase out the practice of port licences being inherited between generations, which is not permitted under EU law. The illegal practice was abandoned in 2007.

But in a 2017 U-turn, the government had unilaterally reintroduced the practice, passing Legal Notice 135 of 2017. Under that legal notice, port workers who before the 10 June, 1975 were licensed to work as general cargo stevedores, lightermen or in the port labourers section, were authorised to be replaced by their son, daughter, brother or sister.

The amendment to the Port Workers Regulations also established that port workers who had been in possession of such a licence on 23 October 1992, or during the period between October 2004 and October 2017, were also eligible to be replaced by their children.

When providing services to Freeport Terminals Limited, a number of so-called “casual port workers” engaged on a contract of services agreement between the Malta Dockers’ Union and Freeport Terminals Limited, claim to have suffered discrimination, not least with respect to their pay, which was less than their unionised colleagues. This constituted a breach of the Equal Pay for Equal Work Principle by the Malta Dockers’ Union, they argue.

The Commission sent a letter of formal notice to Malta in September 2022.

Malta said in its reponse that companies can hire among the 400 port workers listed in the Port Workers Register but if those workers do not meet the employers' requirements, the companies must hire among the relatives of these 400 port workers.

Only if the relatives do not meet the requirements can the employers choose their staff freely.

The Maltese authorities provided justifications for their regime, but the Commission still believes the Maltese scheme violates EU law.

A group of casual port workers have since filed court proceedings against the Ministry for Transport, the Malta Dockers Union and the State Advocate, in which they are contesting the “blatant discrimination” between previously licensed port workers and them.