Doing Business In.. 2020

Last Updated July 15, 2020

Gibraltar

Law and Practice

Authors



ISOLAS is a leading international law firm with its headquarters in Gibraltar. Established in 1892, it is Gibraltar’s oldest law firm. Truly independent, ISOLAS offers clients the benefits of commitment, continuity and the close personal interest expected of a long-established firm. ISOLAS has a reputation for combining expert legal advice with commercial pragmatism. ISOLAS is known to be practical and confident in the advice it gives.

Gibraltar is a British overseas territory with a culture that emanates from the UK. Its laws are based on English Law (common law system) and although its jurisprudence is largely home-grown, English and Commonwealth judicial precedent and rules of equity, although not strictly binding, are of persuasive authority in Gibraltar.

Gibraltar has its own government and parliament that are responsible for domestic affairs, while its foreign affairs are handled by the UK. It has its own written constitution, and statutes are enacted by its parliament.

Certain English acts are applied, either in whole or in part, in the following ways:

  • by express reference to the Schedule of the English Law (Application Act);
  • by Order of Her Majesty in Council;
  • as expressed in the English act itself or in any other act;
  • by necessary implication.

Court Structure

While similar to the court structure in England & Wales, there are notable differences in Gibraltar. This includes the absence of a High Court, Crown Court and County Courts, with Gibraltar’s Supreme Court having jurisdiction over both criminal and civil matters. Gibraltar’s Supreme Court handles matters that would fall under the UK High Court’s Chancery, Queen’s Bench and Family Divisions, as well as serving as an appellate function from the Magistrates’ Court.

Judiciary

Judges and magistrates are appointed locally, with a parallel system of lay assessors in the Magistrates’ Court, as seen in England & Wales. The judiciary is independent from the government of Gibraltar and politically impartial.

Appeals from the Supreme Court are made to the Court of Appeal, which sits at periodic intervals and is presided mostly by English judges. Appeals from that court are to the Privy Council, which sits in London.

Civil Proceedings

Under Section 38A of the Supreme Court Act 1960, the Civil Procedure Rules (CPR) made under the Civil Procedure Act 1997 in England & Wales, as amended from time to time, apply in Gibraltar, with such modification as the circumstances may require. The Supreme Court Rules 2000 supplement these procedural rules, providing further requirements in terms of, inter alia, interpretation, court records, fees and costs and prescribed forms.

Civil proceedings can be split into a variety of “jurisdictions”, but most are handled in the Supreme Court, with the Magistrates’ Court hearing only a limited range of civil matters (eg, the Stipendiary Magistrate holds the office of the coroner in the UK). These jurisdictions include the following:

  • family jurisdiction – non-contentious probate, divorce and matrimonial proceedings, and child proceedings;
  • civil jurisdiction – contract & tort, commercial matters, and constitutional, public and administrative law matters;
  • appellate jurisdiction – the Supreme Court will hear appeals from certain tribunals as well as the Magistrates’ Court;
  • admiralty jurisdiction – ship arrests and general admiralty matters;
  • ordinary jurisdiction (Chancery equivalent) – equity and trusts, contentious probate, bankruptcy and insolvency, company matters;
  • miscellaneous jurisdiction – landlord and tenant, mutual legal assistance, administrator general, deed polls, admissions to the Gibraltar Bar; 
  • Court of Protection– jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.

Criminal Proceedings

The Criminal Procedure and Evidence Act 2011 prescribes the applicable procedure in the Magistrates’ Court and Supreme Court when they exercise criminal jurisdiction. Together with the Crimes Act 2011, these acts brought about significant changes to the criminal justice system in Gibraltar, effectively creating a modern criminal code for Gibraltar. From a business perspective, corporate manslaughter prosecutions are also possible, with extension of this offence beyond corporations to the police, trade unions, partnerships and employers’ associations.

All criminal proceedings commence in the Magistrates’ Court, with the more serious (indictable) offences being sent to the Supreme Court, either for jury trial or sentencing.

Lawyers

Most lawyers are England & Wales-qualified barristers or solicitors, with a minority of European lawyers. Qualification for call to the bar in Gibraltar is via a separate procedure to qualification in the UK, and it is possible for UK-qualified solicitors to be called to the Gibraltar Bar. A practical training requirement is required before admission to the Gibraltar Bar, consisting of a period of 12 months’ employment at an approved establishment, together with an approved academic course in Gibraltar law. In certain cases, the Chief Justice may waive one or more of these requirements – for example, when an English barrister is instructed to act as an advocate on a particular case or cases. 

Gibraltar enjoys what is termed a “fused profession”, whereby both barristers and solicitors called to the Gibraltar Bar enjoy rights of audience in every court, and barristers can be “acting solicitors”. This results in practitioners with a diverse skill set who are all client-facing and able to conduct litigation or non-contentious work without restriction.

EU Law and Brexit

EU law presently applies in Gibraltar pursuant to Article 355(3) of the Treaty on the Functioning of the European Union, as it is a territory over whose relations a member state (ie, the UK) is responsible. Although not a member state in its own right, Gibraltar transposes European Directives into local legislation and Regulations have direct effect as they would in a member state. EU law is given effect under Gibraltar’s European Communities Act 1972.

By virtue of the UK opting out of the Schengen Agreement, Gibraltar is also not a part of this agreement, as is the case with the single currency of the EU’s Economic and Monetary Union, resulting in the Gibraltar pound sterling (GIP) being the local currency; this is pegged to, and exchangeable with, the British pound sterling (GBP) at par value. Gibraltar is also exempted from the EU customs union, and the common agricultural policy.

As of May 2020, there remains uncertainty as to the status of the UK and Gibraltar post-withdrawal from the EU. The UK, and consequently Gibraltar, left the EU on 31 January 2020, and an 11-month transition period has commenced since that date. During this period, both jurisdictions remain in the single market and continue to apply EU laws. Gibraltar’s future relationship with the EU will remain heavily dependent on the outcome of the ongoing negotiations between the UK and the EU.

In Gibraltar, there is no distinction between foreign and domestic investment. In general, there are no restrictions on foreign or domestic shareholders. However, certain financial services, gaming and telecommunications businesses do require pre-authorisation from a regulator regarding its shareholders to ensure that the shareholders are reputable persons and meet applicable fitness and proprietary requirements.

Generally, an application would have to be made to the relevant regulator (for example, the Gibraltar Financial Services Commission in relation to financial services business) as part of the wider application for the issuance of a licence in connection with the proposed activities. This sets out the details of the proposed shareholder, source of wealth, details regarding the fitness and proprietary of the individual (for example, whether the individual has ever been declared bankrupt) and details regarding the beneficial interest held.

Failure to notify a regulator of any changes in shareholders, or obtain the pre-approval of a shareholder, could result in regulatory sanctions and revocation of the relevant licence.

Generally, authorities do not condition their approval to certain commitments (although this may vary depending on the activities of the proposed investment), but individuals must notify the regulator should there be any material changes to the information provided in the initial application for approval. 

Generally, there is no right of appeal. However, this will depend on the circumstance on a case-by-case basis as there may be situations where there is some element of recourse.

Corporate vehicles in Gibraltar may take various forms, these include: trusts; foundations; limited partnerships; limited liability partnerships; companies limited by guarantee; companies limited by shares; protected cell companies; and unlimited companies.

As each form of corporate vehicle contains its own unique set of characteristics, the most suitable vehicle for a particular use case will depend on various factors, such as the nature of the underling business activity or reasons for the establishment of the vehicle (eg, asset protection or succession planning).

Companies limited by shares are by far the most common form of corporate vehicle in use in Gibraltar. These may be set up as a private company (in which case the company’s shares or debentures are not allowed to be offered to the general public) or as a public company (in which case the company’s shares or debentures are allowed to be offered to the general public). 

Private Companies

As with all companies, private companies are required to adopt articles of association which set out the rules governing the relationship between the company and its shareholders, as well as the responsibilities of its directors.

Private companies must have a minimum of one director, and there is no statutory maximum number of directors. A company may, however, provide for a maximum number of directors under its articles of association. A sole director of a company is unable to also act as the secretary of that company.

Private companies must have a share capital that is divided into shares of a fixed amount, and there is no minimum or maximum share capital requirement. Therefore, private companies may be set up with a single shareholder and can consist of any number of shareholders (although regard must be had to regulatory implications of what could be construed as a collective investment scheme) without the need to register as a public company.

Due to their flexibility, ease to set-up and the limited liability offered to shareholders, private companies are usually perceived to be the preferred corporate vehicle for most businesses, joint ventures as well as holding companies.

Trusts

A trust is an equitable obligation binding one party, the trustee, to control and manage property for the benefit of one or more parties, the beneficiaries. A settlor will transfer property to the trustee (whether during his lifetime or under a will) on specified terms which are usually contained in a trust deed and supplemented by a non-binding letter of wishes from the settlor to the trustees.

The provisions relating to the establishment and administration of a trust are contained in the document constituting the trust, known as the declaration of trust or trust deed. This document sets out the powers and fiduciary obligations of the trustees’ vis-à-vis the trust property/fund and the beneficiaries. 

The incorporation process of a private company requires an application form, together with payment of the applicable fee, to be submitted to Companies House.

In the case of a company, the application form must include:

  • the proposed name of the company;
  • the liability of its members;
  • whether the company is to be private or public;
  • a Statement of the Intended Registered Office Address;
  • the Memorandum of Association and Articles of Association (to the extent that bespoke Articles of Association of Memorandum of Association are to be adopted);
  • in the case of a company that is to be limited by shares, a Statement of the Authorised Share Capital, Initial Shareholding and particulars of the rights attached to shares;
  • in the case of a company that is to be limited by guarantee, a Statement of Guarantee from the proposed members;
  • a Statement of Compliance.

There is no requirement for the first director(s) and secretary of a company to be named on the application form. Instead, the Companies Act facilitates a 14-day period during which details of the first director(s) and secretary of the company, may be filed.

Standard incorporation takes approximately three working days and costs GBP100. However, Companies House also offers a same-day incorporation service for an additional GBP100.

Upon successful incorporation, Companies House will issue a Certificate of Incorporation which serves as conclusive evidence that the requirements of the Companies Act have been complied with and that the company is duly registered in Gibraltar.

Companies are subject to various ongoing annual and event-driven reporting and disclosure obligations.

All companies are required to deliver an annual return to Companies House, at least once in every calendar year. The annual return is a snapshot of certain information relating to a company including: the company’s main activity, shareholders, directors, secretary and share capital. The annual return must be delivered within 30 days of the date which the annual return is made up to.

Companies are also required to deliver annual accounts to Companies House. The accounting principles to be observed when preparing the accounts vary, depending on the size of the company, and range from an abridged balance sheet to full accounts (including balance sheet, profit and loss account, notes, directors’ report and auditors’ report). The annual accounts must be filed within 12 months (in the case of a private company) or ten months (in the case of a public company) of the financial year-end. Special rules apply in the case of a company’s first reporting period.

Companies are also required to deliver certain information and shareholder resolutions when particular changes occur within the company. The Companies Act applies various filing dates depending on the event which triggered a filing requirement. In the majority of cases where filing of documentation is required, the Companies Act imposes a 30-day filing period.

There is a separation between ownership and control in companies limited by shares. Shareholders are the owners of a company and the directors are responsible for a company’s management and day-to-day running, owing a fiduciary duty to the company.

Most of the obligations and responsibilities of the directors and shareholders are set out in a company’s articles of association. However, the Companies Act does prescribe certain statutory obligations and responsibilities – for example, under the Act, any changes to a company’s name or articles of association requires the approval of a company’s shareholders. These statutory requirements cannot be overridden by a company’s articles. 

Directors’ and Officers’ Liability

Under the Companies Act, the officers of a company may be held criminally liable for certain offences; these include situations where the officers fail to comply with certain filing and reporting obligations.

Directors are subject to common law, equitable and fiduciary duties. Broadly, these include the following duties:

  • to exercise skill and care;
  • to act in good faith and in the best interests of the company;
  • to act within the powers conferred by the company’s memorandum and articles of association and to exercise powers for a proper purpose;
  • not to fetter their discretion;
  • to avoid conflicts of interest;
  • not to make a secret profit.

The concept of “piercing the corporate veil” is recognised in Gibraltar and personal liability may therefore be imposed in certain situations – for example, where the directors permit an insolvent company or prospectively insolvent company to continue trading unless they can demonstrate that it is beneficial for the creditors to continue to do so.

Under the Companies Act, any provision that seeks to exempt or indemnify a director or officer of the company from any liability which by virtue of any rule of law would otherwise attach to him or her in respect of any negligence, default, breach of duty or breach of trust of which he or she may be guilty in relation to the company, is deemed to be void. This does not prevent the company from indemnifying directors or officers against liability incurred in defending proceedings (whether civil or criminal) in which judgment is given in his or her favour or in which he or she is acquitted. Companies may also purchase and maintain directors’ and officers’ liability insurance cover.

Shareholders’ Liability

Under the Companies Act, the liability of the shareholders of a company limited by shares is limited to the amount unpaid on the shares respectively held by them. Shareholders may, however, be held personally liable in certain circumstances, such as where they provide a personal guarantee and accept a direct contractual liability with a third party.

The legal rules governing the employment relationship in Gibraltar is based on the employment law of England & Wales, both in terms of legislation and common law, modified to suit the needs of the jurisdiction. The applicable legislation is contained primarily in the Employment Act 1954 and its subsidiary legislation, including:

  • the Employment Regulations 1994;
  • the Employment (Maternity and Parental Leave, and Health and Safety) Regulations 1996;
  • the Conditions of Employment (Redundancy Pay) Order 2001;
  • the Employment (Information and Consultation of Employees) Regulations 2005;
  • the Conditions of Employment (Standard Minimum Wage) (Amendment) Order 2019.

Other significant legislation is contained in the Working Time Act 1999 and the Employment (Bullying at Work) Act 2014.

Pending the departure of Gibraltar (together with UK) from the European Union, relevant EU law also applies to workers in Gibraltar.

Collective bargaining agreements apply to some employers; these are most commonly negotiated by trade unions.

Gibraltar employment law applies to all employees working in Gibraltar, irrespective of nationality or even residence given the large proportion of cross-border workers commuting to Gibraltar from Spain on a daily basis.

The parties to a contract may choose the governing law to the contract to be that of a different country. However, such an election of governance will likely be limited to contractual disputes and Gibraltar law will continue to govern the law to the employment relationship generally.

A contract of employment may be concluded verbally. However, there is a minimum requirement to file a Notice of Terms of Engagement with the Department of Employment for all workers. In some cases, this notice may be the only written part of the contract between an employer and employee and sets out basic mandatory terms of the employee's employment, such as working hours, salary, holiday entitlement and notice periods, the minimum of which are set in statute. While the requirement to file the notice is mandatory in all cases, some employers will also provide workers with a more detailed employment agreement, in addition to the notice, setting out contractual terms and conditions and incorporating any additional benefits.

In addition to the rights imposed by statute, there are other terms implied into contacts by common law including a duty to provide work and a mutual duty to maintain trust and confidence.

Variations to the employment relationship must be notified to the Department of Employment on a prescribed form.

The duration of the employment contract is not regulated under Gibraltar law but a worker is able to bind themselves to provide services for a specified or indefinite term. This must be set out in the Notice of Terms of Engagement.

The maximum time spent working, including overtime, must not exceed a weekly average of 48 hours, over an average period of 17 weeks excluding any periods of sick leave, maternity leave or annual leave.

However, any worker may agree with his employer in writing that this maximum should not apply to them, provided the employer can comply with certain requirements.

In the case of a worker between the ages of 15 and 17 (inclusive), the maximum working time should not exceed eight hours a day, or 40 hours a week, and such workers may not opt out of the stipulated maximum working time.

There is no minimum working time applicable to workers in Gibraltar. Accordingly, zero-hour contracts are permitted under Gibraltar law.

The Employment (Annual and Public Holidays) Order stipulates what rights employees have who work extra hours on public holidays when they are not ordinarily required to do so.

Employment contracts can be terminated by providing notice. Statute determines what the minimum notice periods are. However, often notice periods under the contract are greater than that set out in statute.

A contract may also provide for payment in lieu of the notice period.

After the first week, which is deemed to be probationary under statute, employment may be terminated by either party without notice, thereafter the minimum statutory notice period must be applied.

In the case of an employee giving notice of termination, the required period is determined by reference to how often they are paid only – ie, one week's notice if paid weekly and one month's notice if paid monthly. A failure to provide appropriate notice will give rise to a claim for wrongful dismissal. However, employees can be dismissed without notice in cases of gross misconduct.

Additionally, employees have a statutory right not to be dismissed unfairly if they have been employed for a continuous period of at least 52 weeks and are of less than retirement age, ending with the effective date of termination. Accordingly, employees may be dismissed “at will” before they have attained 52 weeks’ continuous service, provided that the employer complies with minimum notice provisions under statute or the contract, and provided that the employee is not dismissed for an automatically unfair reason such as pregnancy or membership of a trade union.

However, after 52 weeks’ continuous notice, the employer must prove that there was a permitted reason for the dismissal of the employee. Permitted reasons for a dismissal are:

  • reasons relating to capability of the employee;
  • reasons relating to the conduct of the employee;
  • that the employee was redundant;
  • that the employee’s continuous employment would result in the contravention of the law or some other substantial reason of a kind to justify dismissal.

If an employee is found to be unfairly dismissed, they are entitled to compensation calculated by a statutory formula and which includes compensation for the unfair dismissal and a compensatory award which is capped, presently at a maximum of GBP56,784.

On termination of employment, a Notice of Termination must be filed with the Department of Employment.

Under the Employment Act 1954, collective redundancy consultation requirements apply where an employer is proposing to dismiss as redundant five or more employees at one establishment within a period of 90 days or less. In such circumstances, the employer must consult with the affected employees’ representatives at the earliest opportunity and at least 60 days before the first dismissal takes place. Employee representatives include representatives of a trade union or representatives elected by the affected employee satisfying the requirements of the Act. The consultation must be undertaken by the employer with a view to reaching agreement with the relevant representatives and must include a discussion about avoiding dismissals, reducing the number of dismissals and mitigating the consequences of the dismissals. Further, and as part of the consultation process, the employer shall disclose to the representatives and to the director the following in writing:

  • the reasons for the proposed redundancies;
  • the number and descriptions of affected employees;
  • the proposed method for the selection of affected employees;
  • the proposed method of carrying out the dismissals;
  • the proposed method of calculating the amount of any redundancy payments to be made.

A failure to consult in a collective redundancy situation can give rise to a claim for entitle to a protective award of compensation.

Employees dismissed for redundancy reasons are entitled to redundancy pay calculated by a statutory formula dependent on years of service, subject to a maximum of one year's pay and provided that they have completed one year's service. 

There are no general mandatory rights under Gibraltar Law. However, various consultation requirements are imposed on employers in respect of collective redundancy situations (as discussed in 4.4 Termination of Employment Contracts) or where an employee is affected by a transfer of an undertaking.

Further, the Employment (Information and Consultation of Employees) Regulations 2005 provides a framework for the rights to information and consultation upon the request of employees. In such cases, the employer must make a formal agreement about what business information it will share with its employees and when it will consult them, provided the employer employs a minimum of 50 employees, and 15 employees or 10% of the total workforce (whichever number is greater) make the request.

Before the consultation process commences, the employer must arrange for its employees to elect the relevant number of information and consultation representatives by ballot: this means one representative per 50 employees or part thereof, provided that that number is at least two and does not exceed 25.

Income Tax

Income tax is charged on the profits or gains from any office or employment, including any allowances, perquisites or benefits in kind (such as expense payments, vouchers and credit tokens, living accommodation, car expenditure and loans to employees).

For employees, tax on the income from employment is deducted from wages and salaries under the pay-as-you-earn (PAYE) system. An employer is required to deduct tax from the wages of the employee on each pay, and then pay the tax by the 15th day of the following month.

Taxpayers may, in their tax return, choose between an allowance-based system (ABS) or a gross income-based system (GIBS). However, irrespective of the system opted for, on final assessment the Income Tax Office will apply the system most beneficial to the taxpayer.

Allowance Based System (ABS)

This system enables an individual to claim certain allowances against assessable income. Allowances include:

  • personal;
  • spouse;
  • child;
  • medical insurance premiums paid;
  • life insurance premiums paid;
  • pension contributions paid;
  • first-time home purchase;
  • mortgage interest;
  • social insurance contributions paid;
  • pensioner.

The tax rates under the ABS are as follows:

  • 14% on the first GBP4,000;
  • 17% on the next GBP12,000;
  • 39% on the balance.

Gross Income-based System (GIBS)

Under the GIBS, a taxpayer is entitled to very few allowances/reliefs, but the applicable rates are lower.

The allowances/reliefs available under the GIBS include:

  • first-time home purchase;
  • mortgage interest;
  • pension contributions paid;
  • medical insurance premiums paid.

The tax rates under the GIBS are as follows:

  • individuals with gross income up to GBP25,000 –
    1. 6% on the first GBP10,000,
    2. 20% on GBP10,001 to GBP17,000,
    3. 28% on the balance;
  • Individuals with gross income of more than GBP25,000 –
    1. 16% on the first GBP17,000,
    2. 19% on GBP17,001 to GBP25,000,
    3. 25% on GBP25,000 to GBP40,000,
    4. 28% on GBP40,001 to GBP105,000,
    5. 25% on GBP105,001 to GBP500,000,
    6. 18% on GBP500,000 to GBP700,000,
    7. 5% on the balance.

Any taxpayer with income of GBP11,450 or less is not liable to income tax in Gibraltar.

Social Insurance

Social insurance contributions are payable by every employee in any week in which they work.

Employee contributions are 10% of gross earnings, subject to a minimum of GBP6.05/GBP26.22 per week/month and a maximum of GBP30.25/GBP131.08 per week/month.

Employer contributions are 20% of gross earnings subject to a minimum of GBP18.15/GBP78.65 per week/month and a maximum of GBP40.15/GBP173.98 per week/month.

Individuals aged 60 and over are exempt from paying the employee’s share of social insurance contributions.

There is also an exemption (subject to certain conditions) from the employer’s and employee’s social insurance contribution in respect of an employee’s secondary employment.

A credit in respect of employer’s social insurance contributions is available to businesses with ten employees or less. This is increased to 20 employees for new businesses within the first year of operation.

Companies are taxed on a territorial basis of taxation, meaning that only income accrued in or derived from Gibraltar will be subject to taxation in Gibraltar. Accrued in and derived from refers to the location of activities, which gives rise to the profits of the company.

A business whose income arises from an underlying activity that requires a licence and regulation under any law of Gibraltar (such as a business licence or licence issued by the Gibraltar Financial Services Commission), or is licensed in another jurisdiction but enjoys passporting rights into Gibraltar, shall be deemed to accrue in and derive from Gibraltar. 

Intercompany loan interest (which exceeds GBP100,000 per annum) and royalty income shall be deemed to accrue in and derive from Gibraltar if it is received by a company registered in Gibraltar. Intercompany loan interest and royalty income will be subject to tax at 10%.

The standard rate of taxation for a company is 10%.

There is no VAT or withholding tax on interest, dividend or royalty payments.

Companies could also be subject to import duty on the importation of certain goods, if applicable.

Stamp duty could also be payable on the transfer of a Gibraltar property owned by a company.

Gaming duty is levied at 0.15% on the gross profits of holders of a bookmaker, betting intermediary and gaming operator’s license. The first GBP100,000 of gross profits is exempt from this duty.

There is no capital gains tax, estate duty, wealth tax, gift tax or inheritance tax in Gibraltar. 

Category 2 Status

Gibraltar offers the opportunity for high net worth individuals to obtain Category 2 status which places a cap over the tax liability of that individual. Tax is applied to the first GBP80,000 of assessable income (including worldwide income) meaning that a Category 2 individual will pay a maximum of GBP27,560 tax per annum, subject to a minimum tax payable of GBP22,000 per annum (current rates).

The requirements for Category 2 status are as follows:

  • must have available for exclusive use approved residential accommodation in Gibraltar for the whole year of assessment (can be either purchased or rented);
  • must have a minimum net worth of GBP2 million;
  • must have private medical insurance (which must meet the minimum requirements of cover);
  • must not have been resident in Gibraltar for five years immediately preceding the category 2 application.   

High Executive Possessing Specialist Skills (HEPSS) Status

HEPSS status is a special employment status available to those individuals with specialist skills who intend to relocate to Gibraltar to take up employment. An individual in respect of whom a HEPSS certificate is issued shall be charged to tax on the first GBP120,000 of their assessable income only. This would mean that an individual with HEPSS status would pay a fixed rate of GBP29,940 tax per annum (current rates) regardless of how much they would earn form that employment.

The requirements for HEPSS status are as follows:

  • must have available for exclusive use approved residential accommodation in Gibraltar for the whole year of assessment (can be either purchased or rented);
  • must possess skills that are necessary to promote and sustain economic value in Gibraltar;
  • must possess skills that are not readily available in Gibraltar;
  • must not have been resident in Gibraltar for three years immediately preceding the HEPSS application;
  • must earn more than GBP120,000 per annum from that employment.

Development Aid

In order to encourage private developments in Gibraltar, promoters and developers of approved projects are offered certain incentives such as tax relief, import duty relief and rates relief. 

Tax consolidation is not available in Gibraltar.

Thin capitalisation rules are applicable in Gibraltar. For instance, interest paid on a loan by a company to related parties that are not companies, or loans secured by related parties where the ratio of the value of the loan capital to the equity of the company exceeds 5:1, would be considered a dividend payment and would not be a deductible expense for tax purposes.

The interest limitation rule in Gibraltar provides that exceeding interest expenses are deductible up to the greater of (1) 30% of EBTDA; or (2) EUR3 million.

If an amount charged for goods and services by a connected person is not at arm’s-length, the expense allowed shall be the lower of: (i) the amount of the expense; (ii) 5% of gross turnover; or (iii) 75% of the pre-expense profits.

Further, interest payments to connected persons which are in excess of what would be deemed arm’s length would be considered to be a dividend.

A person commits an offence if they are knowingly concerned in the fraudulent evasion of income tax by them or any other person, and could be imprisoned for up to seven years.

The regulation of cross-border mergers is governed by the Companies (Cross-Border Mergers) Regulations 2010, which allows for three types of cross border mergers:

  • mergers by absorption – whereby the transferor is dissolved and their assets and liabilities are transferred to the transferee;
  • mergers by absorption of a wholly owned subsidiary – whereby a wholly owned subsidiary transferor is dissolved and its assets and liabilities transferred to its parent company;
  • merger by formation of a new company – where two or more companies, the transferors, are dissolved and transfer their assets and liabilities to a newly formed company.

In addition, specific merger control notifications are applicable to certain regulated businesses, whereby consent is required from the applicable regulator prior to the merger taking place.

Under the Companies (Cross-Border Mergers) Regulations 2010, it is a requirement that merging companies obtain a pre-merger certificate from their respective courts. This involves complying with the administrative obligations, which include:

  • a director’s report;
  • an independent expert’s report;
  • publication of the merger;
  • members and creditors approval. 

Court approval of the merger will then also be required.

Additionally, there are other regulatory requirements to be adhered to where the Gibraltar-based target is licensed and regulated in Gibraltar.

Anti-competitive agreements and practices are governed by the competition rules of Article 101 of the Treaty on the Functioning of the European Union (TFEU), which prohibits agreements that have, as their object or effect the restriction, prevention or distortion of competition within the EU, and which have effect on trade between EU member states.

Abuse of a dominant position in the market is governed by the competition rules in Article 102 of TFEU, which prohibits any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it, as incompatible with the internal market in so far as it may affect trade between EU member states.

A patent is a form of intellectual property which grants the inventor the right to exclude others from making or selling his or her invention for a period of time, thus being able to take legal action against anyone who makes, uses, sells or imports the invention without his or her permission. The invention must not be specifically excluded from protection.

Original applications to register a trademark or patent in Gibraltar cannot be made, the Gibraltar Registry will only replicate successful registrations made in the Intellectual Property UK Patent Office.

The grantee of a UK patent may apply within three years from the date of issue of the patent, to have such patent registered in Gibraltar in accordance with Section 2 Patents Act (1924).

As part of the registration process the following documents must be submitted to the Gibraltar Registry in accordance with Section 3 of the Patents Act (1924):

  • application for registration of a patent (Form 1);
  • certified copies of the specification(s) (including drawings if any) of the UK patent;
  • certificate of the comptroller-general of the UK Patent Office giving full particulars of the issue of the specification/s and, in the case of a patent treated as being granted in the UK by virtue of the provisions of Section 2 of the Patents Act 1924, a certificate by an officer duly authorised under the Patents Act designating the UK has accepted the European Patent (UK) designating the UK as being effective in the UK and that the particulars of the application are true;
  • a filing fee of GBP30.

Upon such application being received, together with the documents mentioned in Section 3, the Registrar of Patents shall issue a certificate of registration in accordance with Section 4 Patents Act 1924. The protection of a patent will remain valid for as long as the UK patent is valid; the time period is 20 years from the date of issue of the UK patent, provided that the applicable renewal fees have been paid accordingly.

Patent rights are able to be enforced against a party through the UK or Gibraltar courts. The remedies for patent infringement include the seizure/destruction of the infringing goods, monetary damages and injunctive relief. Section 7 Patents Act 1942 outlines the powers of the Gibraltar Supreme Court and states that:

“The Supreme Court shall have power upon the application of any person who alleges that his interests have been prejudicially affected by the issue of a certificate of registration, to declare that the exclusive privileges and rights conferred by such certificate of registration have not been acquired on any of the grounds upon which the United Kingdom patent might be revoked under the law for the time being in force in the United Kingdom: Provided that such grounds shall be deemed to include the manufacture, use or sale of the invention in Gibraltar before the priority date applicable to the patent in the United Kingdom, but not to include the manufacture, use or sale of the invention in Gibraltar by some person or persons after the priority date applicable to the patent in the United Kingdom and before the date of the issue of the certificate of registration under section 4. For the purposes of this proviso the expression “priority date” in its application to a patent in the United Kingdom has the meaning assigned to it in section 5 of the Patents Act, 1949, or any other Patents Act for the time being in force.”

A trade mark is a sign which can distinguish the trade origin of goods and/or services from those of competitors. A trade mark must be considered to be distinctive, which means if it can be recognised as a sign that differentiates the origin of goods and/or services from those of other sources. A trade mark may include: words, sounds, logos, colours, shape or any combination thereof.

The Registrar of Trade Marks deals with the registration of trade marks under the Trade Marks Act 1948 and the Trade Marks Rules 1948. It is not possible for originating applications to be made in Gibraltar. Therefore, a trade mark must first be registered in either the UK Intellectual Property Office, the European Union Intellectual Property Office, or the World Intellectual Property Office under the Madrid Protocol (with an EU or UK Designation).

The European Union Intellectual Property website confirms that a European Union Trade Mark extends to all member states inclusive of the UK and therefore Gibraltar. However, the position following Brexit remains unclear and it is advisable that those who wish to ensure protection both in the UK and Gibraltar post-Brexit should seek to register trade marks in both the EU and the UK separately – in other words, to err on the side of caution.

Trade marks registered in other EU national trade mark registries may not be registered in Gibraltar, unless it is an EU-registered trade mark or is registered under the Madrid Protocol at the World Intellectual Property Office with an EU or UK designation.

Under Council Regulation (EU) No 40/94 European Union Trade Marks, it is possible to obtain a single trade mark registration which is effective throughout the EU and such protection can be extended to Gibraltar.

The following documents are required in order to register a UK trade mark, a Madrid Protocol trade mark or a European Union trade mark:

  • application for registration of a trade mark (Form 1);
  • certified representation of the trade mark – certificate of the Comptroller of the UK Patent Office (under his title of Registrar of Trade Marks) giving full particulars of the registration of the trade mark in the UK and such other documents as may from time to time be prescribed (Section 4 Trade Marks Act 1948);
  • two prints of the trade mark;
  • the applicable filing fee of GBP30.

Once all the relevant documents have been submitted to the Gibraltar Registry, the Registrar will then enter the prescribed particulars in the register and shall issue a certificate of registration to the applicant who shall then be the registered proprietor in Gibraltar of the trade mark in respect of the goods entered in the register.

The registration of UK and EU trademarks are renewable every ten years and valid in Gibraltar while they are valid in the UK or the EU.

Industrial design is an intellectual property right that legally protects the visual design of objects or part of an object in the territories that it is registered in and it constitutes the ornamental aspect of an object. In Gibraltar, there are two forms of industrial design, these being registered and unregistered designs.

Designs registered in the UK are automatically protected in Gibraltar by virtue of Section 2 of the Gibraltar Designs Act 1928. Registered Community Designs are also automatically protected in Gibraltar by virtue of the Treaty on the Functioning of the European Union. UK-registered design right applications are made and obtained through the UK Intellectual Property Office.

A design is legally defined as being the appearance of the whole or part of an object resulting from the features of, shape, colours or materials of the object or ornamentation. Both 3D and 2D designs are protected by registered designs. The design must not have been publicly disclosed or published within the EEA prior to being registered. There is, however, a 12-month grace period following the disclosure which allows the designer to make its application.

An unregistered design right in the UK arises automatically on the creation of an original object and it has been recorded in an article or design document, subject to the provisions of Part 3 of the UK Copyright, Designs and Patents Act 1988.

Designs registered in the UK have their rights are extended and protected in Gibraltar and there is no need for any applications to be made in Gibraltar. Designs produced in Gibraltar enjoy reciprocal protection in the UK under Part 3 of the UK Copyright, Designs and Patents Act 1988.

A registered design can be renewed every five years up to 25 years, subject to the payment of fees. The length of protection afforded to an unregistered design according to Section 216 of the UK Copyright, Designs and Patents Act 1988 will be 15 years from the earlier of the end of the calendar year in which the design was first recorded in a design document or an article was first made to the design or if articles made to the design are made available for sale or hire within five years from the end of that calendar year, ten years from the end of the calendar year in which that first occurred.

Owners of both registered and unregistered designs are able to enforce action through the UK or Gibraltar courts. For unregistered designs, remedies can include injunctive relief, damages or accounting for profit made. For registered designs, remedies can include injunctive relief, damages, accounting for profit made, delivery or destruction of the infringed product.

Copyright is a property right which subsists in sound recordings, films or broadcasts, original literary works – which includes databases, computer programs and preparatory design – dramatic, musical or artistic works and in the typographical arrangement of published editions. Copyright protects the author's work in several ways and prevents others from replicating this work, making an adaptation of this work, putting it on the internet and performing or playing this work in public.

Copyright protection is automatic upon the creation of the said qualifying work, tand so no registration process is required. The length of the copyright is dependent on the type of work – for example, works such as written, sound, films and artistic work will last for 70 years after the author’s death.

A copyright holder is able to enforce court proceedings where he or she believes that there has been an infringement on the copyright and remedies include damages, injunctions and accounts. It is a criminal offence to infringe copyright.

Other intellectual property rights in Gibraltar also extend to trade secrets. This is a common law right in which the information contained within has commercial value because it is secret and the use or disclosure is likely to harm the interests of the trade secret holder in several ways – for example, scientific and technical potential, business or financial interests, strategic positions or the ability to compete. 

In accordance with Section 4 of the Protection of Trade Secrets Regulations 2018 it is possible the acquisition of trade secrets in Gibraltar shall be considered lawful if obtained by any of the following means:

  • independent discovery or creation;
  • observation, study, disassembly or testing of a product or object that has been made available to the public or that is lawfully in the possession of the acquirer of the information who is free from any legally valid duty to limit the acquisition of the trade secret;
  • exercise of the right of workers or workers’ representatives to information and consultation in accordance with any rules of law applicable in Gibraltar;
  • any other practice which, under the circumstances, is in conformity with honest commercial practices;

In accordance with Section 8 of the Protection of Trade Secrets Regulations 2018, the limitation period for bringing a claim for the unlawful acquisition, use or disclosure of a trade secret is six years. The start date for reckoning the limitation period for a claim for the unlawful acquisition, use or disclosure of a trade secret against an infringer begins with whichever is the later of:

  • the day on which the unlawful acquisition, use or disclosure that is the subject of the claim ceases; or
  • the day of knowledge of the trade secret holder

Where damages are awarded in relation to unlawful acquisition, Section 16 of the Protection of Trade Secrets Regulations 2018 states that all appropriate aspects shall be considered, including:

  • any negative economic consequences, including any lost profits, which the trade secret holder has suffered, and any unfair profits made by the infringer;
  • elements other than economic factors, including the moral prejudice caused to the trade secret holder by the unlawful acquisition, use or disclosure of the trade secret;
  • where appropriate, damages may be awarded on the basis of the royalties or fees which would have been due had the infringer obtained a licence to use the trade secret in question.

In Gibraltar, the overarching national law on data protection is the Data Protection Act 2004 (DPA 2004), as read with the General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR). GDPR has direct effect in Gibraltar given the applicability of EU law (see 1 Legal System).

These laws are supplemented by the following:

  • Communications (Personal Data and Privacy) Regulations 2006 (CPDP Regs), made under the Communications Act 2006;
  • Data Protection (Search and Seizure) Regulations 2006 (DPSS Regs).

The Communication Act 2006, together with the CPDP Regulations, transpose the E-Privacy Directive (Directive 2002/58/EC), imposing obligations on publicly available electronic communications services providers and users when they process personal data.

The DPSS Regulations, among others, authorise justices of the peace to issue warrants to the supervisory authority (see below) in certain circumstances, allowing them to enter premises, inspect and seize as required.

DPA 2004 was amended on 25 May 2018 to:

  • implement GDPR;
  • transpose the Law Enforcement Directive (Directive (EU) 2016/680);
  • implement a data protection framework under the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 1981 (Convention 108);
  • implement articles 126–130 of the Convention of 19 June 1990 applying the Schengen Agreement of 14 June 1985.

The changes made to DPA 2004 took Brexit into account, as well as the Data Protection Act 2018 of England & Wales (DPA 2018). Both statutes share a similar structure, but with notable differences, such as the repeal of Part IV of DPA 2004, which related to intelligence service processing and was similar in structure and content to Part 4 of DPA 2018. Given that the GDPR has direct effect in Gibraltar, DPA 2004 fills the gaps outside of the “material scope” of the GDPR, such as activities falling outside the scope of EU law (eg, national security, and the common foreign and security policy, immigration, etc) and exercises certain derogations permissible under the GDPR. It is, therefore, important to read the GDPR and DPA 2004 side-by-side.

Both DPA 2004 and GDPR have to be considered in terms of their territorial application.

The territorial scope of GDPR can extend to any of the following situations.

  • Where a controller/processor has an “establishment” in the EU and processing occurs “in the context of the activities” of that establishment. This applies even if the processing occurs outside of the EU (ie, in a third country, such as the USA).
  • Where goods or services are offered to data subjects in the EU, irrespective of whether payment is required by a non-EU controller/processor. There should be an element of targeting and other evidence will be considered, such as whether consumers are able to pay in their local currency, or whether a marketing campaign has taken place. This test is also not limited by citizenship or residency of the data subjects.
  • Where the monitoring of behaviour of data subjects in the EU is carried out by a non-EU controller/processor. Examples of monitoring would be predicting trends, or use of geo-location.
  • Where a controller is not established in the EU, but in a place where public international law applies member state law.

Likewise, the territorial scope of DPA 2004 also extends to similar situations, but in a Gibraltar context:

  • any controller/processor established in Gibraltar where processing occurs in context of activities of that establishment, whether or not the processing actually takes place in Gibraltar;
  • any controller/processor established outside of a member state or the UK, irrespective of whether the processing takes place in that territory, if:
    1. processing is processing to which Chapter 2 of Part II of DPA 2004 applies (ie, GDPR processing);
    2. personal data relates to data subjects who are in Gibraltar when the processing takes place; and
    3. the processing relates to offering goods or services, or monitoring the behaviour of, data subjects in Gibraltar.

Controllers and processors established outside of the EU would need to consider the appointment of a local representative either in Gibraltar or in the EU, if they are offering goods or services or monitoring the behaviour of data subjects in Gibraltar or in the EU.

DPA 2004 appoints the Gibraltar Regulatory Authority (GRA) as Data Protection Commissioner (the Commissioner). For the purposes of the relevant EU legislation and the Data Protection Convention, the GRA is the supervisory authority.

The GRA is an independent statutory body responsible for the enforcement of the Data Protection Act 2004, and its primary role as Commissioner is to uphold the privacy rights of individuals.

Under changes made to DPA 2004, the GRA now has increased regulatory powers under that Act, as well as those granted under Article 58 GDPR. These powers are classed as “investigative”, “corrective” and “authorisation and advisory”, allowing the GRA to, among others:

  • bring or defend legal actions in Gibraltar or other courts;
  • co-operate with and render assistance to other supervisory authorities;
  • conduct data protection compliance audits;
  • issue information notices, requiring others to provide it with information to investigate compliance;
  • issue assessment notices to allow it to enter premises, obtain documents and equipment, and interview persons;
  • issue enforcement notices, including warnings and reprimands, which may impose temporary or definitive bans on processing, or order a controller/processor to take corrective action;
  • issue monetary penalty notices in line with the GDPR fine levels.

Article 57 also prescribes the tasks and functions of supervisory authorities. These include, but are not limited to, promoting of awareness of rights and obligations, handling of complaints, conducting of investigations and taking enforcement action against those controllers or processors failing to comply, co-operating with other supervisory authorities and the European Data Protection Board, and certifying and approving certain mechanisms and schemes such as contractual clauses or binding corporate rules.

ISOLAS

23 Portland House
Glacis Road
Gibraltar
GX11 1AA

+350 2000 1892

+350 2007 8990

Emma.lejeune@isolas.gi www.isolas.g
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ISOLAS is a leading international law firm with its headquarters in Gibraltar. Established in 1892, it is Gibraltar’s oldest law firm. Truly independent, ISOLAS offers clients the benefits of commitment, continuity and the close personal interest expected of a long-established firm. ISOLAS has a reputation for combining expert legal advice with commercial pragmatism. ISOLAS is known to be practical and confident in the advice it gives.

Tax Law

Tax treaties

On 20 March 2020, the Income Tax (Amendment) Bill 2020 was passed giving Gibraltar domestic effect to the double tax treaty (UK DTA), and the protocol to that treaty, signed by Gibraltar and the UK in October 2019. The UK DTA came into force on 24 March 2020, and is the first double tax treaty which Gibraltar has entered into.

The government of Gibraltar has also published the text of a tax treaty between Spain and the UK regarding Gibraltar, but this treaty has yet to be ratified and is not yet in force.

DAC6

In January 2020, the Income Tax (Amendment) regulations 2020 were published which introduces mandatory disclosure rules for intermediaries (and in some cases taxpayers) in respect of cross-border arrangements that exhibit certain “hallmarks”. The new regulations have transposed Council Directive (EU) 2018/822 (DAC 6) into the Income tax Act 2010.

Anti-tax avoidance directive

In January 2019, the Income Tax Act 2010 (Amendment No 3) Regulations 2018 were published, which transposed into the Income Tax Act 2010 Council Directive (EU) 2016/1164 (ATAD). These lay down rules against tax avoidance practices that directly affect the functioning of the internal market. The purpose of the ATAD is to provide for uniform legislative implementation of some of the Organisation for Economic Co-Operation and Development (OECD) Base Erosion and Profit Shifting (BEPS) recommendations. ATAD established minimum standards with respect to the following five areas:

  • interest limitation;
  • exit taxation;
  • general anti-abuse rules;
  • controlled foreign company rules;
  • hybrid mismatches.

The government chose to exercise the derogation provided under Article 11 of paragraph 5 of ATAD allowing for exit tax rules to be adopted and published into laws, regulations and administrative provisions by 31 December 2019, and so the Tax Act 2010 (Amendment No 3) Regulations 2018 did not make any amendments in respect of exit tax.

Exit tax

In January 2020, the Income Tax Act 2010 (Amendment No 3) Regulations 2020 were published to implement the exit tax provisions contained in ATAD.

COVID-19 and tax law: the BEAT COVID-19 measures

Tax shall not be chargeable in Gibraltar on any BEAT COVID-19 payments (as further detailed in the employment law section below) made to an inactive employee or inactive self-employed person.

No social insurance shall be payable in Gibraltar by an inactive employee, their employer or an inactive self-employed person, for as long as the inactive employee or inactive self-employed person remains inactive. However, an inactive employee and inactive self-employed person shall be deemed to have made all their respective social insurance contributions for such part that they remain inactive. 

Corporate Vehicles

Gibraltar’s company legislation underwent a significant overhaul back in 2014 with the introduction of the (current) Companies Act 2014, which repealed and replaced the previous Companies Act 1930. The Companies Act 2014 introduced a number of significant changes.

The need for an excessively long objects clause in the memorandum of association was removed, giving companies unlimited capacity if they so choose.

Companies became entitled to use electronic communication for notices and communications, as well as facilities for e-communications with the Registrar.

Shareholders (including minority shareholders) were given certain statutory rights which they did not previously enjoy.

Transactions which would otherwise be void for financial assistance, can now be authorised under specific circumstances.

Companies re-domiciling into Gibraltar are now able to register mortgages and charges in Gibraltar, previously created while incorporated in their original jurisdiction.

Liquidators of companies in voluntary liquidation must be licensed as insolvency practitioners.

Collective investment schemes were exempted from certain procedures under the Act and dates for filing documents with the Registrar have been standardised, as far as possible.

More recent developments include the requirement for the first director(s) and secretary of a company to be named on the forms filed at Companies House upon the incorporation of a company was removed. The Act now facilitates a 14-day period during which details of the first director(s) and company secretary, as well as any changes, may be filed, and the requirement for companies with income assessable to tax in Gibraltar to file an annual return has been extended to include: (i) companies with income assessable to tax in Gibraltar; and (ii) all companies registered in Gibraltar.

Changes have also been introduced to Gibraltar’s Register of Beneficial Owners Regulations 2017 in order to give effect to the transposition of the Fifth Anti-Money Laundering Directive (5AMLD). Many of the requirements introduced by 5AMLD had been previously transposed into Gibraltar law, such as the obligation to report discrepancies in registers (and a corresponding sanctioning regime), with the aim of ensuring that information held on the central registers is adequate, accurate and current.

One key change that was introduced earlier this year as part of 5AMLD’s transposition relates to the increase of transparency on beneficial owners of corporate entities through the creation of a public register of beneficial ownership as opposed to a private one.

Furthermore, 5AMLD also sees the introduction of an obligation to establish a regime for the registration and disclosure of beneficial ownership information on trusts. It is anticipated that transposition of these requirements will follow later in the year after a technical consultation with the trust and fiduciary services industry.

Employment Law

COVID-19 and employment law

The COVID-19 pandemic has wreaked havoc on the global economy, with immediate implications for businesses which were required to close with little to no notice, leaving employers without the ability to provide work for their employees, and crucially, without pay.

In response to this, on 17 March 2020, the government of Gibraltar announced the Business & Employee Assistance Terms (or BEAT) COVID-19 measures to help businesses affected by the pandemic.

The BEAT measures

In short, BEAT is a scheme which provides direct financial support so that employers can retain their staff and pay them their salaries at a fixed rate. BEAT saw the creation of the status of an “inactive employee” under the Appropriation (Business Employee Assistance Terms COVID-19) Regulations 2020. This allows employers from relevant sectors to effectively suspend employment, as an alternative to terminating the employment, while they are affected by the restrictions on economic activity and free movement of people imposed by recently enacted legislation in response to the pandemic.

Additionally, the Regulations provides that as from 15 March 2020, and for the duration of the period that the regulations remain in place (and which is under weekly review), no terminations of employment may take effect, unless prior consent is granted by the Director of Employment and, further, no bonuses or dividends to shareholders are allowed to be paid by affected businesses who receive a “BEAT COVID-19 contribution” while the Regulations are in force.

Inactive employees

Employees who cannot work remotely and are not provided with any work by their employer and who are told not to attend their place of work due to the current lockdown restrictions can be registered as an "inactive employees" by their employer. However, only eligible employers are covered under the Regulations and those “excluded sector” employers are listed in Schedule 2 of the Regulations. The measures also cover “inactive self-employed persons”.

All “inactive” workers (whether employees or self-employed) must have been employed for a period of at least 28 days in the period 15 September 2019 to 15 March 2020 and registered with the Income Tax Office or Department of Employment as at 15 March 2020.

Payment rates and employment rights

The government pays the employer a contribution of GBP1,155 per month in respect of each full-time inactive employee. An employee is deemed to be working full-time if they work 7.5 hours per day or more.

Schedule 1 of the Regulations sets out the method of calculation for contributions. The contribution of GBP1,155 per month is produced by multiplying 7.5 working hours in a day by 22 working days by the BEAT COVID19 hourly rate, which is GBP7. For part-time workers (including those on zero-hour contracts), a pro-rated amount will be payable. 

Upon receipt of the contribution from the government, employers are to pay the amount received to each inactive employee, without the deduction of tax or social insurance. Inactive employees will be deemed to have made all their respective social insurance contributions for such part that they remain inactivate. Inactive employees also retain all employment rights and obligations except the rights to be paid a salary and accrual of holiday and leave entitlement, which may need to be suspended during this period.

The method of calculation and payment procedure is identical in respect of self-employed individuals, save for that payment will be received directly from the government.

The furlough scheme

On 4 May 2020, the government of Gibraltar announced “the necessary extension of the BEAT scheme” resulting in a subsequent amendment to the Regulations 2020 on 7 May 2020 setting out the terms applicable to the private sector BEAT “furlough scheme”.

“Excluded sector” businesses can now also, subject to approvals, seek to designate their employees as “inactive”. Provided the relevant approvals are obtained, the employer can pay any designated inactive employees either 50% of their salary or the BEAT COVID-19 rate, whichever is the higher. It is important to note that the payment is funded exclusively by employers rather than the government as is the case with the BEAT measures, but these employer contributions will equally not attract PAYE or Social Insurance.

Further, employers should note that there is a general restriction so that employers can only apply this scheme to a maximum of 25% of their workforce and additionally, the maximum period that an employee can be furloughed under this scheme is 35 days, although the government may waive these restrictions in exceptional circumstances. This provides employers with the flexibility to rotate staff who are furloughed as necessary to suit business needs.

Partially-active and fully-inactive employees

As part of the amendment to the Regulations, new rules have also been incorporated to the existing BEAT measures to allow businesses in the “included sectors” to make an employee inactive for only half the month of May, in line with the gradual release of lockdown, which includes the re-opening of certain businesses. In such cases, the government will pay the employee half of the contribution at the BEAT COVID-19 rate and the employer will pay the employee the other half of their salary at their usual, contractual rate.

Possible future amendments in Gibraltar employment Law

It is understood that, prior to the outbreak of the global pandemic, the Gibraltar government was actively considering the introduction of additional employment rights, including in respect of paternity leave and flexible working. However, for now it would appear that any such amendments to the law have been set aside, in order to concentrate efforts in ensuring business continuity and protecting both employees and employers’ basic rights under Gibraltar Employment Law. Accordingly, all we can do is “watch this space” for further developments in these areas once Gibraltar establishes its “new normal”.

Use of contact tracing and location data

At the time of writing, Google and Apple are working on a joint initiative to provide a contact tracing framework that others can use to develop contact tracing applications, which harness Bluetooth technology on mobile devices so that encrypted signals are sent and received by devices, measuring the length of intensity of exposure to a Bluetooth signal. As individuals are diagnosed, their mobile devices would emit a different encrypted message allowing “tracing” of any contact with a diagnosed person.

One of the key risks is that individuals are identified or messages/signals decrypted through cyber-attack. Gibraltar is considering an approach which relies on a decentralised repository of the data, as opposed to what the UK model originally envisaged: a centralised “server” or location operated by the government or by a health authority. To date, this technology remains in the development phase in Gibraltar.

The GRA has also provided recent guidance on the use of contact tracing and location data as tools to support the fight against COVID-19, highlighting the privacy risks that need to be addressed during development of the software (applications/apps), such as ensuring robust security and encryption methods cover every stage of the processing, and that DPIAs are carried out. A clear balancing exercise is required between supporting innovation and securing the rights and freedoms of natural persons.

Data Protection

Latest regulatory guidance

The Gibraltar Regulatory Authority (GRA), in exercise of its functions as the Data Protection Commissioner under the Data Protection Act 2004 (DPA 2004), continues its work in producing regulatory guidance on several aspects of GDPR and the DPA 2004. So far, it has published 19 Guidance Notes on areas such as data protection impact assessments (DPIAs), data subject access requests (DSARs), data security, international transfers, guidance for SMEs and data portability to name but a few (see www.gra.gi for further details). 

COVID-19 and "sensitve data"

The GRA’s most recent guidance has been in response to the COVID-19 pandemic, noting that the Commissioner is mindful that resources, whether financial or human, might be diverted away from usual compliance or information governance work during this extraordinary time. This should provide a degree of comfort to local and international businesses facing particularly hardship, in the event that there is some lapse on regulatory deadlines.

Concerns have been raised over homeworking, and the message to be gleaned in this regard is that data protection should not be a barrier to this method of working, provided that persons take adequate steps to ensure data security. A further recurring theme appears to have been sharing of special category (ie, "sensitive") health data about someone having COVID-19 across an organisation, or with relevant authorities.

The guidance here points to the principle of data minimisation, which should lead employers collecting the minimum information necessary, and asking themselves if there is really a need to identify a particular individual, or whether a message can be delivered preserving the privacy of these persons. In any event, a lawful basis would still need to be identified when sharing personal data, and Article 9(2) GDPR provides certain gateways, particularly in the employment context.

ISOLAS

23 Portland House
Glacis Road
Gibraltar
GX11 1AA

+350 2000 1892

+350 2007 8990

Emma.lejeune@isolas.gi www.isolas.g
Author Business Card

Law and Practice

Authors



ISOLAS is a leading international law firm with its headquarters in Gibraltar. Established in 1892, it is Gibraltar’s oldest law firm. Truly independent, ISOLAS offers clients the benefits of commitment, continuity and the close personal interest expected of a long-established firm. ISOLAS has a reputation for combining expert legal advice with commercial pragmatism. ISOLAS is known to be practical and confident in the advice it gives.

Trends and Development

Authors



ISOLAS is a leading international law firm with its headquarters in Gibraltar. Established in 1892, it is Gibraltar’s oldest law firm. Truly independent, ISOLAS offers clients the benefits of commitment, continuity and the close personal interest expected of a long-established firm. ISOLAS has a reputation for combining expert legal advice with commercial pragmatism. ISOLAS is known to be practical and confident in the advice it gives.

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