In the case CEB Metals Limited (C39556) vs L-Avukat tal-Istat et, Hon. Mr Justice Ian Spiteri Bailey, sitting in the first Hall, Civil Court, in its Constitutional Jurisdiction had to examine the constitutionality of the privilege of super invictis et illatis granted to property owners.

In brief the privilege of super invictis et illatis is found in article 2009 sub-article (e), which deals with privileges over particular movables. The law provides that the privileged debts over particular movables are:

• The debt due to the dominus for ground-rent, and the debt due to the lessor for the rent of an immovable, over the fruits, and over the value of all things which serve for the furnishing or stocking, or for the cultivation of the tenement, regardless of who owns such fruits or things;
• This privilege does not apply if the products or things belong to, or are held by, or on behalf of a Government department in cases where that department is not directly liable for the debt;
• The privilege also extends to indemnities owed to the dominus or lessor for repairs that the emphyteuta or lessee failed to carry out, and for any other breach of contractual obligations;
• The dominus and lessor may seize or attach by a garnishee order, any movables used to furnish, stock, or cultivate the tenement if these have been removed without their consent. They retain their privilege over such movables provided they request the warrant within fifteen days from the date of removal;

The Background

By way of background, the applicant is a company engaged in several commercial operations, one of which is in the aluminium market, by exporting aluminium sekonda mano in the market.

As part of its business, the applicant used to subcontract with another company, Alu Finish Limited which operated the facilities that belonged to a sister company being Aluminium Extrusions Limited. Alu Finish Limited was the only company in Malta with the facilities to melt aluminium and manufacture it into billets and aluminium profiles.

The applicant’s core operations involved purchasing scrap metal from local sources and transporting it to Alu Finish Limited for processing. The metal would then be melted and reshaped into the required form according to specifications agreed upon in the contract. Once the processing was complete, the applicant would acquire the finished product at a pre-determined price. The applicant would then proceed with its business of selling the finished product.

The factory of Alu Finish Limited was located in Ħal Far given under a title of lease/emphyteusis. This case dates back to 2007, when Aluminium Extrusions Limited was evicted by Malta Industrial Parks (now Indis Malta) for failing to pay rent or ground rent on the leased property.

Along with the eviction order, the landlord issued a precautionary warrant of seizure, and subject to this warrant were 34 aluminium billets and another 30,000 tonnes of raw material of aluminium belonging to the applicant inside the Aluminium Extrusions factory. The applicant in 2007 had submitted an application for the release of its property contained in Aluminium Extrusions’ factory, and approximately 19,000 tonnes were released, however, around 30,000 tonnes of scrap metal, valued at approximately €70,000, remained at the factory. Indis Malta asserted its’ privilege of super invictis et illatis over the 30,000 tonnes of material contained within Aluminium Extrusions’ factory.

In a separate and earlier court case, the applicant claimed ownership of the 30,000 tonnes of aluminium profiles and requested the material to be delivered back to the applicant. On 29th of April 2021, the Court of Appeal upheld the claim that the 30,000 tonnes of aluminium profiles inside the factory belonged to the applicant but rejected the request for its return.

The applicant therefore argued that article 2009(e) of Chapter 16 of the Laws of Malta, which grants privilege to landlords, does not apply in this scenario because the material inside the factory belonged to the applicant and not the lessee.

Key Issues before the Court

The central question was whether applying the privilege of super invictis et illatis amounted to a breach of the applicant’s human rights under Article 8 and Article 1 of Protocol 1 of the European Convention on Human Rights, given that the property contained in the factory belonged to the applicant and not the lessee.

The Court dismissed the applicability of Article 8, Protocol 1 since it relates to the right to respect for private and family life, and was therefore irrelevant to the
present case.

The relevant provision analysed by the First Hall of the Civil Court, Constitutional Jurisdiction is Article 1 of Protocol 1 of the European Convention
on Human Rights, which states:

Every natural or legal person is entitled to the peaceful enjoyment of their possessions. No one shall be deprived of their possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

Principles Identified by the Court

Article 1, Protocol 1of the Convention rests on three principles:

1. Every person has the right to peaceful enjoyment of their property.
2. Deprivation of possessions is only justified if it is done in the public interest.
3. The State may enact laws necessary to control the use of property in accordance with the general interest.

Outcome

The Court observed that Article 2009(e) of Chapter 16 is not intended to serve the general public interest, but rather its purpose is to protect the rights of property owners whose property is leased or subject to ground rent. This provision grants the privilege of super invictis et illatis to the owner of the leased property or property given by title of emphyteusis over the movable property contained within that immovable property.

The Court emphasised that this privilege does not safeguard the general public interest; rather, it is a right conferred exclusively on landlords or dominus to secure their claims. Therefore, the analysis must focus on proportionality and fairness, as the interference is not based on a public interest rationale; but it is a private law mechanism designed to benefit landlords at the expense of third-party property owners.

The Court considered that the aluminium profiles found in the Alu Finish limited factory had an economic value, and were ultimately owned by the applicant, which therefore fall within the definition of possessions which is protected for under Article 1, Protocol 1. The Court additionally noted that as the contract of works between the applicant and Alu Finish Limited was legitimate, there is no reason why the billets and scrap metal shouldn’t receive the protection outlined in Article 1 of Protocol No. 1.

The Court made the important observation that Article 2009(e) grants property owners the right to retain any movable property found within the leased premises, even if that movable property belongs to third parties who are not under an obligation to pay rent. However, the law does not provide any remedy for those third-party owners whose property is located inside the leased property and is subject to the principle of super invictis et illatis. On the other hand, the third party may find themselves in a situation where they are not even notified that their property is being seized or handed over to creditors. The Court considered this to amount to an arbitrary seizure of property in favour of landlords. This privilege is not granted in the general public interest but rather for the benefit of a select few, to the detriment of the owners of movable property, and without any proportionality or adequate protection being afforded.

The Court highlighted the broader dangers of applying such a privilege in a wide context. For instance, if a home appliance is taken to a technician and the technician defaults on rent, that appliance could be subject to the landlord’s privilege. Similarly, if a car is given to a mechanic for repairs and the mechanic fails to pay rent, the landlord could make the claim of super invictis et illatis and retain the car, even though it belongs to someone else and not the mechanic. What is even more concerning is that the original owners of these movable items have no remedy against the privilege granted to the bare owners of the immovable property.

Practical Implications

In light of this, the First Hall, Civil Court in its Constitutional Jurisdiction declared that the law is disproportionate and violates the applicant’s human right to peaceful enjoyment of property under Article 1 of Protocol 1 of the European Convention on Human Rights.

Once the judgment becomes final, the sentence will be transmitted to the House of Representatives and the Speaker in accordance with Article 242 of the Code of Organization and Civil Procedure, paving the way for the necessary legislative amendments.

Disclaimer: Ganado Advocates is responsible for contributing to this law report but was not in any way involved as legal advisor for the parties in the judgement being covered in this law report. This article was first published in ‘The Malta Independent’ on 19/11/2025.