Updated Thursday 9.36am
A court has provisionally upheld a request by Waste collection cooperative GreenPak for an injunction to block the tendering process whereby regional councils will take over waste collection. It argues that this will spell irreparable prejudice for the cooperative which will be “squeezed” out of the market.
It said the request for the warrant of prohibitory injunction was resorted to as the “sole” remaining remedy after numerous calls and meetings to resolve the matter failed.
And with the closing date for five out of six tenders originally set for July 7, GreenPak’s lawyers filed an application before the First Hall, Civil Court requesting it to provisionally uphold the injunction so as to block the tender adjudication process as well as the signing of subsequent contracts and issuing of recycling certificates by WasteServ.
GreenPak, as a “producer responsibility organisation” with over 1,200 commercial companies and businesses as members, has long been operating a door-to-door collection scheme of materials under two waste streams, namely plastic, paper and metal, as well as glass.
They also collect waste from Bring-in sites, with Green MT Limited being the only other entity which operates a similar scheme.
But all this is set to change on account of a “regionalisation” project tailored by the relative authorities aimed at nationalising waste collection, effectively annulling schemes which have been functioning for 10 years.
The service is now to be entrusted to the islands’ six regional councils whose juridical personality in terms of law is “doubtful”, the applicants’ lawyers claim, questioning the powers of such councils to enter into contracts and stand in judicial proceedings.
Over the past weeks, tenders were issued for collectors to bid for household waste collection using low emission vehicles, “in an environmentally friendly manner”.
That was “practically identical” to the service currently rendered by GreenPak.
The ultimate beneficiaries of the tenders are the regional councils which have very limited functions in terms of law.
Should the process go ahead, the current operators who operate the schemes under licence from the Environment Resources Authority will be “directly” and “irreparably” impacted, as will their contracts with waste collectors.
Those licences and contracts are “valid and binding” up to the end of 2023.
The tenders are set to cover all waste streams throughout Malta and Gozo, including those currently handled by GreenPak and are scheduled to start functioning during “the 4th quarter of 2022”.
Should the project go ahead, GreenPak will effectively be “squeezed out of the market” in spite of being entitled to operate until December 2023.
Not only would the cooperative lose control over collectors and the manner of waste collection, but relative rates would be agreed upon between collectors and WasteServ while GreenPak would still have to honour its contractual obligations, including collection costs and recycling thresholds.
Moreover, such tenders would also mean that a current pending dispute between GreenPak and WasteServ over “reject rates” would be bypassed.
Meanwhile, GreenPak could not bid for such tenders for a number of reasons, including the fact that it would have to change its business model and that was not financially viable.
It could not set up a joint venture as that would entail too complex negotiations within too short a time, given that the tenders issued in May, were closing soon.
And besides, the cooperative did not fit within the definition of contractor.
GreenPak thus took its grievance to court by filing for an injunction against the Department of Contracts, the Local Government Division, the Environment Minister, WasteServ and all six regional councils.
Lawyers Antoine Naudi and Tyrone Grech signed the application.