ACT No. IX of 2003 AN ACT to amend various laws BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:- (tat-taqsim)

I assent.

G UIDO DE M ARCO

(L.S.)

President

2nd September, 2003

ACT No. IX of 2003

AN ACT to amend various laws

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows:-

Part I

(1) The short title of this Act is the Various Laws Short title and

commencement.

(Amendment) Act, 2003.

(2) The provisions of the various Parts of this Act, other

than this Part, shall come into force on such dates as therein provided.

Part II

List of scheduled zones in terms of article 2

1. FORT CHAMBRAY

Fort Chambray in the limits of Ghajnsielem in the Island

of Gozo, shown outlined in red in a plan marked as Document

X enrolled in the records of Notary Public in the Lands

Department Dr. Vincent Miceli by Deed No. 121 dated 13th

April, 1993.

2. PORTOMASO DEVELOPMENT

Portomaso Development situated on a plot of land at

Spinola, St. Julians, Malta, shown outlined in blue in a plan

marked as Document B annexed to a deed in the records of

the Assistant Notary to Government, Doctor Anthony Attard,

by Deed No. 83 dated 19th May, 1964.

3. COTTONERA DEVELOPMENT

Cottonera Development consists of the immovable

property, as per Plans LD 23/99, LD 23A/99; LD 23B/99;

LD 24/99; LD 24A/99; LD 24B/99 and LD 24C/99 marked

as Documents “X”, “Y”, “F”, W”, “P”, “O” and “K”

respectively annexed to a deed in the records of Notary Doctor

of Laws Vincent Miceli by Deed No. 100 of the 2nd June,

1999.

4. MANOEL ISLAND/TIGNÈ POINT

Manoel Island/Tignè Point in the limits of Gzira and

Sliema in the Island of Malta, as per plans Property Drawing

number fifty four stroke two thousand (PD 54/2000) and

Property Drawing number fifty five stroke two thousand (PD

55/2000) in respect of lands at Manoel Island/Tignè Point

respectively marked “X” and “Y” respectively enrolled in

the records of NotaryPublic in the Lands Department Vincent

Miceli of the 3rd March, of the year two thousand (2000).

(1) This Part of this Act amends, and shall be read and Amendment of the

Commerical Code,

construed as one with, the Commercial Code hereinafter in this Part Cap 13.

referred to as “the Code”.

(2) This Part of this Act shall come into force on such date

as the Minister responsible for commerce may by notice in the Gazette

establish.

Conditions, restrictions, limitations and qualifications for the grant of

a permit under article 6.

1. Any non-resident person wishing to acquire

immovable property in terms of article 6 of the Act shall

submit a form as shown on Annex A or B hereto duly

completed and containing such particulars and accompanied

by such documents, as are prescribed in the said form.

2. The Minister may refuse to issue a permit to a person

who is not of good conduct.

3. In issuing a permit in terms of article 6 of the Act, the

Minister shall impose the following conditions

A. In the case of a dwelling house

(i) that the immovable property is solely used as a

residence by the applicant and his family and for no other

purpose;

(ii) that the acquisition is to be effected within six

months from the date of issue of the permit, saving the

granting of any extension as may be applied for;

(iii) that within three months from publication of

the deed of acquisition, a certified copy of such deed

must reach the office of the Commissioner of Inland

Revenue (Capital Transfer Duty Department); and

(iv) that the immovable property may not be sold

in part, or otherwise converted into more than one

dwelling house.

B. In the case of a garage or other adjoining property

(i) that the immovable property is used solely as a

garage by the applicant and his family or as an extension

to be integrated with the applicant’s existing dwelling;

(ii) that the acquisition is to be effected within six

months from the date of issue of the permit, saving the

granting of any extension as may be applied for;

(iii) that within three months from publication of

the deed of acquisition, a certified copy of such deed

must reach the office of the Commissioner of Inland

Revenue (Capital Transfer Duty Department); and

(iv) that the immovable property covered by this

permit may not be sold or otherwise disposed of

separately but only together with the applicant’s original

dwelling house.

C. In the case of a plot of land

(i) that the applicant is to develop the plot into one

complete single residence ready for occupation within a

period of two years from the date of issue of this permit;

(ii) that the immovable property is eventually to be

used solely as a residence by the applicant and his family

and for no other purpose;

(iii) that the acquisition is to be effected within six

months from the date of issue of the permit, saving the

granting of any extension as may be applied for; and

(iv) that within three months from publication of

the deed of acquisition, a certified copy of such deed

must reach the office of the Commissioner of Inland

Revenue (Capital Transfer Duty Department).

4. The fees payable shall be Lm 100 for each permit, or

such fees as may, from time to time, be prescribed by Order

of the Minister.

ANNEX A

APPLICATION TO THE MINISTER RESPONSIBLE

FOR FINANCE BY A BODY OF PERSONS TO ACQUIRE

IMMOVABLE PROPERTY IN MALTA IN TERMS OF THE

IMMOVABLE PROPERTY (ACQUISITION BY NON-

RESIDENTS) ACT (CAP. 246)

PART I

A. Particulars of applicant falling under paragraph (c)

of the definition of “non-resident person” in article 2 of the

Immovable Property (Acquisition by Non-Residents) Act,

Cap. 246, (hereinafter referred to as the Act).

1. Name of body, association, authority etc. or other entity

which is making the application: ...........................................

2. Whether corporate or not: ..............................................

3. Where or under the laws of which country is it

constituted, formed, established, incorporated or registered

(a certified copy of any relevant deed of constitution or

incorporation is to be attached) ..................................................

4. Whether it has its principal place of residence or of

business outside Malta: ..........................................................

5. (a) A list of all shareholders showing the number of

shares held by each, the citizenship of each shareholder and

the place of residence; and .........................................................

(b) Where the shareholder is a body, association,

authority etc., all the particulars relating to it as at (a) above

(A separate list may be attached to the application duly

signed and dated by applicant, and a note to this effect made

in the above space).

6. Whether it is in any manner directly or indirectly

controlled by one or more non-resident persons as defined by

the Act

(Full particulars are to be given as necessary)

B. Particulars of immovable property to be acquired by

non-residents.

1. Detailed description of immovable property including

the type of property, the locality and other particulars

necessary to identify it and the area of the property in square

metres

2. Price or other consideration being paid

3. If for development, details of cost of works and

estimated period for completion of same

4. Under what title is the immovable property to be

acquired: .....................................................................................

(Applicant is to submit a copy of the preliminary

agreement and other related documents in connection with

the acquisition of the property).

5. Purpose for which the immovable property is to be

acquired: .................................................................................

6. Source of funds for acquisition of immovable property

7. Any other particulars

C. Particulars of person from whom immovable property

is being acquired.

1. Name: .............................................................................

2. Address: .........................................................................

D. Details of any immovable property in Malta already

held or owned by applicant under any title whatsoever

I hereby declare that the above particulars are true and

correct and that the immovable property is intended to be

used for the purpose above mentioned.

Date .................................

Signature of Applicant ...................................

NOTE: Applicant is warned that any information given

in the application material to the granting of a permit by the

Minister which is incorrect or misleading would amongst other

things as contemplated in the Act render any pertinent deed

or act null and void.

PART II

For official use only.

ANNEX B

APPLICATION TO THE MINISTER RESPONSIBLE

FOR FINANCE BY AN INDIVIDUAL TO ACQUIRE

IMMOVABLE PROPERTY IN MALTA IN TERMS OF THE

IMMOVABLE PROPERTY (ACQUISITION BY NON-

RESIDENTS) ACT (CAP. 246)

PART I

A. Particulars of applicant

1. Name and surname: .......................................................

2. Place and Date of Birth: .................................................

3. Parents’ names including mother’s maiden surname

4. Profession or trade: ........................................................

5. Citizenship: ....................................................................

6. Place of residence: (full address) ...................................

7. Mailing address of residence if different from above

Two passport size photos of the applicant and a

photocopy of the applicant’s passport showing the personal

details is to be attached to this application.

B. Particulars of immovable property to be acquired by

non-resident

1. Detailed description of immovable property (i) type

of property, the locality, boundaries (where necessary) and

other particulars needed to identify it and (ii) size of the

property giving overall area of land in square metres, details

of buildings, and all other appurtenances, (iii) whether or not

property is of historical importance or situated in a historical

area

2. Price or other consideration being paid: .....................

3. If for development, details of cost of works and

estimated period for completion of same: .................................

4. Under what title is the immovable property to be

acquired: .................................................................................

(Applicant is to submit a copy of the preliminary

agreement and of any documents in connection with the

acquisition of the property).

5. Purpose for which the immovable property is to be

acquired

6. Source of funds for acquisition of immovable property

7. Any other particulars: ...................................................

C. Particulars of person or body of persons from whom

immovable property is being acquired

1. Name: .............................................................................

2. Address: .........................................................................

3. Citizenship or in case of body of persons, whether

“resident” in terms of the Act …………...................................

D. Particulars of immovable property already owned or

held

1. Details of any immovable property in Malta already

owned or held under any title whatsoever by applicant

2. Details of any immovable property in Malta already

owned or held under any title whatsoever by applicant’s

family

3. Details of any immovable property in Malta disposed

of by applicant or any member of his family during the last

10 years

I hereby declare that the particulars are true and correct.

Date .................................

Signature of Applicant/Attorney .......................................

NOTE: Applicant is warned that any information given

in the application material to the granting of a permit by the

Minister which is incorrect or misleading would amongst other

things as contemplated in the Act render any pertinent deed,

will or act null and void.

PART II

For official use only.

For Sub-title IV of Title IV of Part I of the Code, there shall Substitution of Sub-

Title IV of Title IV

substituted the following

of Part I of the

Code.

“Sub-title IV

OF COMMERCIAL AGENTS

70. (1) The relations between commercial agents and

Application

of this Part.

their principals and the activities of commercial agents in

Malta are governed by the provisions of this sub-title.

(2) This sub-title shall not apply to

(a)

commercial agents whose activities are

unpaid;

(b) commercial agents when they operate on

commodity exchanges or in the commodity market; and

(c) persons whose activities as commercial agents

are secondary.

(3) The provisions of Part I of the Schedule to

this Code shall apply in order to determine the persons whose

activities as commercial agents are to be deemed secondary

for the purposes of paragraph (c) of subarticle (2).

70A. In this sub-title

“commercial agent” means a person not being a

person in the employment of the principal, who has

continuing authority to negotiate the sale or purchase of

goods or services on behalf of another person (the

principal), or to negotiate and conclude such transactions

on behalf and in the name of that principal, but does not

include

(i) a person who in his capacity as an officer

of a company or association is empowered to enter

into commitments binding the company or

association;

(ii) a partner who is lawfully authorised to

enter into commitments binding on his partners;

(iii) a person acting as an insolvency

practitioner in Malta or in an equivalent position in

any other jurisdiction;

“commission” means any part of the remuneration

of a commercial agent which varies with the number or

value of business transactions;

“Minister” means the Minister responsible for

commerce;

“regulatory authority” means the Council of the

Chamber of Commerce;

“restraint of trade clause” means an agreement or a

clause in an agreement restricting the business activities

of a commercial agent following the termination of the

agency contract.

71. (1) No person shall act as a commercial agent,

whether alone or in partnership with any other person, without

a licence from the regulatory authority.

(2) Such licence shall not be granted unless –

(a) an application in writing is made to the

regulatory authority in such form as the regulatory

authority shall prescribe, containing the full name and

surname, age, private and business addresses of the

applicant and such other particulars concerning his

business or occupation as the regulatory authority shall

require. In the case of a person applying for licence to

carry on the business of a commercial agent in

partnership, a reference shall be made in the application

to the statement published in the Gazette in terms of the

Companies Act showing the date of registration of the

partnership and the date on which the relative certificate

of registration was issued;

(b) the applicant satisfies the regulatory authority,

by bankers’, trade, or other references, that he is a fit

and proper person to act as a commercial agent and that

he has an adequate knowledge of the commercial laws

and customs relating to the functions, rights and duties

of commercial agents;

(c) the applicant produces to the said regulatory

authority a certificate of good conduct from the Police

authorities of his jurisdiction.

(3) A licence under this article shall not be granted

to any person who is in the employment of the Government

of Malta or of any financial institution, or to any person

holding a warrant to practise a profession in Malta and actually

practising such profession, or to stockbrokers or to any person

who whether in Malta or abroad has been found guilty of

fraudulent bankruptcy.

(4) An appeal, by means of an application, shall

lie to the Court of Appeal in its Inferior Jurisdiction against

any refusal to grant a licence under this article.

(5) Notice of any licence granted under this article

shall be published in the Gazette. In the month of January of

each year, a complete list of licences then in force shall

likewise be published in the Gazette.

(6) Any licence issued under this article may be

withdrawn or suspended by the Court of Appeal in its Inferior

Jurisdiction on the application of the Attorney General, if the

holder of the licence –

(a)

is convicted of any crime against property;

(b) is adjudged bankrupt;

(c) accepts employment under the Government

of Malta, or with any financial institution, or becomes

the holder of a warrant to practise a profession and

actually practises such profession or becomes a

stockbroker;

(d) is proved, to the satisfaction of the court, not

to be a fit and proper person to act as a commercial agent.

(7) Such withdrawal or suspension shall be

published in the Gazette.

(8) Any proceedings under this article may be

conducted in camera, if the court shall so direct.

Power of the

72. The Minister after consulting the regulatory

authority may, by regulation, prescribe the fee to be charged

by the regulatory authority in respect of the grant of a licence

to act as a commercial agent under the provisions of the last

preceding article. Any such regulation may prescribe the

payment of an annual fee in addition to the fee payable on the

issue of the licence and may provide that in default of payment

of any such annual fee, the licence shall cease to be in force.

73. Any person who, without a licence in force at the

time, represents himself to be, or acts or undertakes to act as

a commercial agent, shall be liable:-

(a) on a first conviction to a fine (multa) not

exceeding one thousand liri;

(b) on a second or subsequent conviction, to

imprisonment for a term not exceeding three months or

to a fine (multa) not exceeding two thousand liri or to

both such imprisonment and fine.

73A. Where any court has imposed a fine under this

sub-title, and such fine has not been paid, the regulatory

authority shall not grant or renew licence on the expiry thereof

until such time as the payment of the fine is effected.

74. (1) In performing his activities a commercial

agent shall look after the interests of his principal and act

dutifully and in good faith.

(2) In particular, a commercial agent shall –

(a) make proper efforts to negotiate and, where

appropriate, conclude the transactions he is instructed

to take care of;

(b) communicate to his principal all the necessary

information available to him;

(c) comply with reasonable instructions given by

his principal.

75. (1) In his relations with his commercial agent a

principal shall act dutifully and in good faith.

(2) In particular, a principal shall –

(a) provide his commercial agent with the

necessary documentation relating to the goods

concerned;

(b) obtain for his commercial agent the

information necessary for the performance of the agency

contract, and in particular notify his commercial agent

within a reasonable period where he anticipates that the

volume of commercial transactions will be significantly

lower than that which the commercial agent could

normally have expected.

(3) A principal shall, in addition, inform his

commercial agent within a reasonable period of his acceptance

or refusal of, and of any non-execution by him of, a

commercial transaction which the commercial agent has

procured for him.

76. (1) The parties may not derogate from articles

74 and 75.

(2) The law applicable to the contract shall govern

the consequence of breach of the rights and obligations under

consequence

articles 74 and 75 above.

77. (1) Without prejudice to the application of any

enactment or rule of law concerning the level of remuneration

remumeration

of commercial agents, in the absence of any agreement as to

remuneration between the parties, a commercial agent shall

be entitled to the remuneration that commercial agents

appointed for the goods forming the subject of his agency

contract are customarily allowed in the place where he carries

on his activities and, in the absence of such customary practice,

a commercial agent shall be entitled to such reasonable

remuneration taking into account all the aspects of the

transaction to be agreed to between the parties or in default

by the court.

(2) Where the remuneration of a commission

agent is not fixed in whole or in part as a commission the

provisions of articles 77A to 77F shall not apply.

77A. (1) A commercial agent shall be entitled to

commission on commercial transactions concluded during the

commission

period covered by the agency contract –

transactions

(a) where the transaction has been concluded as

a result of his direct or indirect intervention; or

(b) where the transaction is concluded with a third

party whom he has previously acquired as a customer

for transactions of the same kind.

(2) A commercial agent shall also be entitled to

commission on transactions concluded during the period

covered by the agency contract where he has an exclusive

right to a specific geographical area or to a specific group of

customers and where the transaction has been entered into

with a customer in that area or group.

77B. Subject to article 77C, a commercial agent shall

be entitled to commission on commercial transactions

concluded after the agency contract has terminated if –

after agency

(a) the transaction is mainly attributable to his

efforts during the period covered by the agency contract

and if the transaction was entered into within a reasonable

period after that contract terminated; or

(b) in accordance with the conditions mentioned

in article 77A above, the order of the third party reached

the principal or the commercial agent before the agency

contract terminated.

Apportionment

77C. (1) A commercial agent shall not be entitled to

the commission referred to in article 77A if that commission

commission

is payable, by virtue of article 77B, to the previous commercial

agent, unless it is equitable because of the circumstances for

the commission to be shared between the commercial agents.

(2) The principal shall be liable for any sum due

under subarticle (1) above to the person entitled to it in

accordance therewith, and any sum which the other

commercial agent receives to which he is not entitled shall be

refunded to the principal.

77D. (1) Commission shall become due as soon as,

and to the extent that, one of the following circumstances

due and date

occurs

(a)

the principal has executed the transaction; or

(b) the principal should, according to his

agreement with the third party, have executed the

transaction; or

(c)

the third party has executed the transaction.

(2) Commission shall become due at the latest

when the third party has executed his part of the transaction

or should have done so if the principal had executed his part

of the transaction, as he should have.

(3) The commission shall be paid not later than

on the last day of the month following the quarter in which it

became due, and, for the purposes of this sub-title, unless

otherwise agreed between the parties, the first quarter period

shall run from the date the agency contract takes effect, and

subsequent periods shall run from that date in the third month

thereafter.

(4) Any agreement to derogate from paragraphs

(2) and (3) above to the detriment of the commercial agent

shall be void.

Extinction of

77E. (1) The right to commission can be extinguished

commission. only if and to the extent that it is established that the contract

between the third party and the principal will not be executed

for a reason not attributable to the fault of the principal.

(2) Any commission which the commercial agent

has already received shall be refunded if the right to it is

extinguished.

(3) Any agreement to derogate from the

provisions of subarticle (1) to the detriment of the commercial

agent shall be void.

77F. (1) The principal shall supply his commercial

agent

with a statement of the commission due, not later than

the last day of the month following the quarter in which the

commission has become due, and such statement shall set

out the basis used in calculating the amount of the commission.

inspection of

(2) A commercial agent shall be entitled to

demand that he be provided with all the information (and in

particular an extract from the books) which is available to his

principal and which he requires in order to check the amount

of the commission due to him.

(3) Any agreement to derogate from subarticles

(1) and (2) shall be void.

(4) Nothing in this article shall remove or restrict

the effect of, derogate from the provisions of any enactment

or rule of law which grants to an agent the right to inspect the

books of a principal.

78. (1) The commercial agent and principal shall

each be entitled to receive from the other, on request, a signed

statement of

written document setting out the terms of the agency contract

including any terms subsequently agreed.

(2) Any purported waiver of the right referred to

in paragraph (1) above shall be void.

78A. An agency contract for a fixed period which

continues to be performed by both parties after that period

has expired shall be deemed to be converted into an agency

contract for an indefinite period.

78B. (1) Where an agency contract is concluded for

an indefinite period either party may terminate it by notice.

of notice for

(2) The period of notice shall be –

(a)

1 month for in first year of the contract;

(b) 2 months after the commencement of the

second year but before the commencement of the third

year;

(c) 3 months after the commencement of the third

year;

and the parties may not agree on any shorter periods of notice.

(3) The parties may agree on longer periods than

those laid down in subarticle (2), provided that the period of

notice to be given by the principal may not be shorter than

that to be given by the commercial agent.

(4) Unless otherwise agreed by the parties, the

end of the period of notice must coincide with the end of a

calendar month.

(5) The provisions of this article shall also apply

to an agency contract for a fixed period which in virtue of

article 78A is converted into an agency contract for an

indefinite period and for the purposes of calculating the period

of notice the term of the fixed period contract shall be deemed

to be part of the agency contract for an indefinite period.

Savings with

78C. This sub-title shall not affect the application of

any

enactment

or rule of law which provides for the immediate

to immediate

termination of the agency contract –

(a) because of the failure of one party to carry

out all or part of his obligations under that contract; or

(b) where exceptional circumstances arise.

78D. (1) Subject to subarticle (7) and to article 78E,

the commercial agent shall be entitled to an indemnity if and

to the extent that –

(a) he has brought the principal new customers

or has significantly increased the volume of business

with existing customers and the principal continues to

derive substantial benefits from the business with such

customers; and

(b) the payment of this indemnity is equitable

having regard to all the circumstances and, in particular,

the commission lost by the commercial agent on the

business transacted with such customers.

(2) The amount of the indemnity shall not exceed

a figure equivalent to indemnity for one year calculated from

the commercial agent’s average annual remuneration over the

preceding five years and if the contract goes back less than

five years the indemnity shall be calculated on the average

for the period in question.

(3) The grant of an indemnity as mentioned above

shall not prevent the commercial agent from seeking damages.

(4) Subject to subarticle (7) and to article 78E,

the commercial agent shall be entitled to compensation for

damage he suffers as a result of the termination of his relations

with his principal.

(5) For the purpose of this sub-title such damage

shall be deemed to occur particularly when the termination

takes place in either or both of the following circumstances,

namely circumstances which –

(a) deprive the commercial agent of the

commission which proper performance of the agency

contract would have procured for him whilst providing

his principal with substantial benefits linked to the

activities of the commercial agent; or

(b) have not enable the commercial agent to

amortize the costs and expenses that he had incurred on

the advice of his principal in the performance of the

agency contract.

(6) Entitlement to the indemnity or compensation

for damage as provided for under subarticles (1) to (5) shall

also arise where the agency contract is terminated as a result

of the death of the commercial agent.

(7) The commercial agent shall lose his

entitlement to the indemnity or compensation for damage in

accordance with the provisions of the foregoing subarticles

above if within one year following termination of his agency

contract he does not make a claim to his principal therefor.

78E. The indemnity or compensation referred to in

article

78D shall not be payable to the commercial agent

where –

(a) the principal has terminated the agency

contract because of default attributable to the commercial

agent which would justify immediate termination of the

agency contract in accordance with article 78C; or

(b) the commercial agent has himself terminated

the agency contract, unless such termination is

justified –

(i) by circumstances attributable to fault of

the principal, or

(ii) on grounds of the age, infirmity or illness

of the commercial agent in consequence of which

he cannot reasonably be required to continue his

activities; or

(c) the commercial agent, with the agreement of

his principal, assigns his rights and duties under the

agency contract to another person.

78F. The parties may before the expiration of the

agency contract, not derogate from articles 78D and 78E to

the detriment of the commercial agent.

78G. (1) A restraint of trade clause shall be valid only

if and to the extent that –

(a)

it is concluded in writing; and

(b) it relates to the geographical area or the group

of customers and the geographical area entrusted to the

commercial agent and to the kind of goods covered by

his agency under the contract.

(2) A restraint of trade clause shall be valid for

not more than two years after termination of the agency

contract.

(3) Nothing in this article shall affect any

enactment or rule of law which imposes other restrictions on

the validity or enforceability of restraint of trade clauses or

which enables a court to reduce the obligations on the parties

resulting from such clauses.

78H. Nothing in this sub-title shall require information

to be given where such disclosure would be contrary to public

policy.

78I. (1) Any notice, statement or other document to

be given or supplied to a commercial agent or to be given or

supplied to the principal under this sub-title may be so given

or supplied

(a)

by delivering it to him;

(b) by leaving it at his proper address addressed

to him by name;

(c) by sending it by post to him addressed either

to his registered address or to the address of his registered

or principal office; or by any other means provided for

in the agency contract.

(2)

Any such notice, statement or document

may –

(a) in the case of a body corporate, be given or

served on the secretary or clerk of that body;

(b) in the case of a partnership, be given to or

served on any partner or on any person having the control

or management of the partnership business.

78J. The provisions of this subtitle shall also apply to

agency contracts concluded before the date of coming into

force of this sub-title

Provided that noting therein shall effect any right or

liability accrued before such date.”.

(1) Parts I, II and III of the Schedule to the Code shall be Amendment to

Schedule to the

renumbered as Parts II, III and IV respectively.

Code.

(2) Immediately before Part II of the Schedule as

renumbered there shall be inserted the following new Part I:–

“PART I

(Article 70(3))

SECONDARY ACTIVITIES OF COMMERCIAL

AGENTS

1. The activities of a person as a commercial agent are

secondary where it may reasonably be taken that the primary

purpose of the arrangement with his principal is other than as

set out in paragraph 2 below.

2. An arrangement falls within this paragraph if –

(a) the business of the principal is the sale, or as

the case may be purchase, of goods or services of a

particular kind; and

(b)

the goods or services concerned are such

that –

(i) transactions are normally individually

negotiated and concluded on a commercial basis,

and

(ii) procuring a transaction on one occasion

is likely to lead to further transactions in those goods

or services with that customer on future occasions,

or to transactions in those goods or services with

other customers in the same geographical area or

among the same group of customers, and that

accordingly it is in the commercial interests of the

principal in developing the market in those goods

or services to appoint a representative to such

customers with a view to the representative devoting

effort, skill and expenditure from his own resources

to that end.

3. The following are indications that an arrangement

falls within paragraph 2 above, and the absence of any of

them is indication to the contrary –

(a) the principal is the manufacturer, importer or

distributor of the goods;

(b) the goods are specifically identified with the

principal in the market in question rather than, or to a

greater extent than, with any other person;

(c) the agent devotes substantially the whole of

his time to representative activities (whether for one

principal or for a number of principals whose interests

are not conflicting);

(d) the goods are not normally available in the

market in question other than by means of the agent;

(e) the arrangement is described as one of

commercial agency.

4. The following are indications that an arrangement

does not fall within paragraph 2 above –

(a) promotional material is supplied direct to

potential customers;

(b) persons are granted agencies without reference

to existing agents in a particular area or in relation to a

particular group;

(c) customers normally select the goods for

themselves and merely place their orders through the

agent.

The activities of the following categories of persons

are presumed, unless the contrary is established, not to fall

within paragraph 2 above –

• Mail order catalogue agents for consumer goods;

• Consumer credit agents.”.

Part III

5. (1) This Part amends and shall be read and construed as one Amendment of the

with the Goldsmiths and Silversmiths Ordinance, hereinafter in this Goldsmiths

Silversmiths

Part referred to as “the Ordinance”.

Ordinance,

(2) The provisions of this Part shall come into force on such

date as the Minister responsible for finance may by notice in the Gazette

establish, and different dates may be so established for different

provisions or purposes thereof.

For the long title to the Ordinance there shall be substituted Substitutes long

and short

the following: “An Act to regulate Goldsmiths and Silversmiths”; and titles to the

for the short title to the Ordinance, there shall be substituted the Ordinance.

following: “Goldsmiths and Silversmiths Act”.

For the words “Goldsmiths and Silversmiths Ordinance” in Amendment of

article 1 of the Ordinance, there shall be substituted the words article

1 of the Ordinance.

“Goldsmiths and Silversmiths Act”.

For articles 2 to 20 of the Ordinance, there shall be substituted Substitution of

articles

the following new articles 2 to 18

2 to 20 of the

Ordinance.

2. In this Act, and in any regulations made

thereunder –

“an alloy of a precious metal” is a solid solution of

a precious metal and one or more other metals;

“authorized” unless otherwise specified, means

empowered by the Minister or his equivalent in a

Member State or by an appropriate European Union

Agency or by any person designated by the

aforementioned in accordance with the provisions of this

Act;

“authorized hallmarking body” is a person

independent of the manufacturer or sponsor of a precious

metal article, authorized to imprint an office mark on

the said article;

“Consul” means the Consul for Goldsmiths and

Silversmiths and includes any public officer whom the

Minister may from time to time authorize to carry out

the duties of Consul;

“dealer” means any person who deals in precious

metal articles or precious stones;

“European Union” means the European Union

referred to in the Treaty;

“fineness mark” is a mark in arabic numerals

imprinted on a precious metal article representing the

standard of fineness of the precious metal article and

indicating the type of precious metal used in the alloy of

this article;

“Malta” has the same meaning as assigned to it by

article 124 of the Constitution of Malta;

“manufacturer” is a person who makes precious

metal articles;

“manufacturer’s hallmark” is an imprint which a

manufacturer is authorized to apply on a precious metal

article comprising the manufacturer’s mark and a

standard mark;

“manufacturer’s mark” is the identifying mark on

a precious metal article which a manufacturer is

authorized to imprint on the precious metal article he

manufactures;

“Member State” means a state which is a member

of the European Union;

“Minister” means the Minister responsible for

finance;

“office hallmark” is an imprint on a precious metal

article applied by an authorized hallmarking body

comprising at least a standard mark;

“placed on the market” shall mean the first time

that a precious metal article is in any way made available

on the market for distribution in the territory of Malta or

such other territory as may be prescribed;

“precious metal” means gold, platinum, palladium

and silver in the pure state and their alloys;

“precious metal article” is any fully manufactured

item of jewellery, goldsmith’s or silversmith’s ware or

watchmaker’s ware and any other complete object made

entirely or in part from a precious metal;

“prescribed” means as prescribed by regulations

under the Act;

“sponsor” means a person who undertakes the same

responsibilities as the manufacturer;

“sponsor’s hallmark ” is an imprint which a sponsor

is authorized to apply on a precious metal article

comprising the sponsor’s mark and a standard mark;

“sponsor’s mark ” is the identifying mark which a

sponsor is authorized to imprint on a precious metal

article;

“standard” is the fractional content by weight of

pure precious metal in a precious metal alloy;

“standard of fineness” shall be the number

representing the number of parts by weight of pure

precious metal in one thousand parts by weight of a

precious metal alloy (millesims);

“standard mark” is a mark imprinted on the precious

metal alloy of a precious metal article representing the

standard of the alloy and the type of precious metal

therein;

“the Treaty” has the same meaning assigned to it in

the European Union Act, 2003.

3. The nominal standards for precious metal articles

shall be as may be such as prescribed.

4. No precious metal article shall be placed on the

market if -

(i) save as may be prescribed, the said article is

imprinted with a standard mark which is superior to the

actual standard of the precious metal;

(ii) the said article bears two or more differing

standard marks except in cases where it consists of

components made of various precious metals;

(iii) the said article does not bear either (a) an

office hallmark or (b) a manufacturer’s or sponsor’s

hallmark;

(iv) the marks referred to in subarticle (iii) hereof

do not bear such other further characteristics as may be

prescribed;

(v) in case the article is made up of various

precious metals it is not marked in accordance with

subarticles (iii) and (iv) hereof for the various precious

metal parts.

5. The provisions of Article 4 of this Act shall not apply

(a) any precious metal article which cannot bear

the pressure of the stamp without being broken or losing

the necessary solidity or on which it is technically

difficult to imprint the required marks;

(b) any precious metal article having an

antiquarian value;

(c) objects of precious metal for scientific,

technical, musical or medical use;

(d) legal tender made of precious metal and

collectors’ coins and medals issued by or on the authority

of a State;

(e) ingots or granules of precious metal for

banking use;

(f) small articles weighing less than one gram in

the case of gold and platinum and three grams in the

case of silver and palladium or such other weight as may

be prescribed;

(g) semi-manufacutured precious metal articles;

(h) articles which are not made of precious metal

but are plated with precious metal or are otherwise

laminated or coated with thin precious metal foil.

6. The standards of solder that shall be used for joining

component parts of precious metal articles shall be such as

may be prescribed.

7. No precious metal articles shall be placed on the

market unless: -

(i) it carries a label indicating the type of precious

metal used in its manufacture and the standard of fineness

thereof;

(ii) where an article contains a non-precious metal

part which is not clearly recognizable, such article does

not carry a label or is not accompanied by a document

clearly identifying the said part;

(iii) the said article falling under provisions of

article 5 of this Act is not accompanied by a document

or certificate as may be prescribed.

8. (1) Manufacturers may not make use of any other

manufacturers’ or sponsors’ marks or hallmarks and they may

only imprint their manufacturer’s mark or hallmark on

precious metal articles they themselves manufacture.

(2) The manufacturer shall be responsible for the

accuracy of the standard mark in the manufacturer’s hallmark.

(1) Sponsors may not make use of other sponsors’

or manufacturers’ marks or hallmarks and they may only

imprint their sponsor’s mark or hallmark on precious metal

articles of which they are sponsors.

(2) The sponsor shall be responsible for the

accuracy of the standard mark in the sponsor’s hallmark.

(1) The Consul shall be an authorized independent

hallmarking body.

(2) The Consul may imprint the Office hallmark

in accordance with the regulations which shall, from time to

time, be made by the Minister.

(3) The Office hallmark imprinted by the Consul

shall be as prescribed.

(4) The imprinting of an Office hallmark shall be

subject to the fees as may be prescribed.

(1) Any person who incorrectly declares that any

homogeneity. precious article or part thereof presented to the Consul for

imprinting with the Consul’s Office hallmark or for

certification is of a homogeneous substance or does not

conceal extraneous substances, shall be liable to the

punishments established in the Criminal Code for

contraventions.

(2) Any person who fraudulently declares that a

precious metal article or part thereof presented to the Consul

for imprinting with the Consul’s Office hallmark or for

certification is of a homogenous substance or does not conceal

extraneous substances, shall, on conviction, be liable to

imprisonment for a term not exceeding eighteen months.

(3) If by means of any such fraudulent declaration

any person procures the imprinting or certification of a

precious metal article which conceals any extraneous

substances, or is not of a homogeneous substance, or if any

person alters one or more parts of an imprinted precious metal

article, or conceals therein any extraneous substances, such

person shall on conviction, be liable to imprisonment for a

term not exceeding two years.

(4) No proceedings shall be taken against any

person who has made an incorrect or fraudulent declaration

that a precious metal article or part thereof presented to the

Consul for the imprinting with the Consul’s Office hallmark

or for certification if is of a homogenous substance, before

the lapse of eight days from the day on which a notice to that

effect is given to him by the Consul; within which time such

person may require that the precious metal article or part

thereof so presented be melted down and that of the substance

so obtained the Consul shall make a second assay.

(1) The Consul shall authorize manufacturers’

Authorization

and sponsors’ marks and hallmarks in accordance with

manufacturers’

regulations which shall, from time to time be made by the

Minister.

(2) Authorization of a sponsor’s mark or hallmark

shall be granted without prejudice to the sponsor’s obligation

to fulfil any requirements in order to align himself with any

local or international patent law.

(3) Such authorization shall be subject to a fee as

may be prescribed.

(1) The Consul shall at any time, inspect any

premises or location where trading or manufacturing of

precious metal articles is carried out or where such articles

are imprinted in order to ascertain that the provisions of this

Act, or of any regulations made thereunder are being observed

and to collect any samples or articles for the said purpose.

(2) The procedure to be followed in the collection

of samples or articles in terms of subarticle (1) hereof shall

be as prescribed.

(3) Any articles or samples collected in

accordance with subarticles (1) and (2) hereof, are not subject

to compensation.

(4) Any articles or samples collected in

accordance with subarticles (1) and (2) hereof and found by

the Consul not to be in accordance with the provisions of

this Act, shall be delivered to the Commissioner of Police.

(1) The Minister shall fix by notice published in

the Government Gazette the official prices of precious metals

based on the prices prevailing on the international market as

prescribed.

(2) The Consul shall be the official valuer for

precious metal articles and shall base his valuation on the

official price of precious metals which valuation shall be

subject to the fees as may be prescribed.

(1) It shall not be lawful for any manufacturer,

sponsor, dealer or any trader to purchase any precious metal

articles or precious stones, from any person unknown to them

without first showing such articles or precious stones to the

Consul.

(2) The Consul to whom any such articles or

precious stones are presented shall make an entry thereof for

that purpose, specifying the weight, quality and value thereof,

the day on which the same were presented to him, and the

particulars of the person by whom they were so presented.

(3) The provisions of subarticle (1) of this article

shall not apply where the purchase is made at a judicial sale

or at a sale of pledges of Il-Monti.

(1) The Consul may, at any time by notice in

writing, require from any person who deals in precious metal

articles or precious stones a return showing the details set out

in the notice regarding the stocks of any such articles or

precious stones held by such a person on any date specified

in the notice before the opening for business, being either the

date of the receipt of the notice or a subsequent date.

(2) The notice referred to in subarticle (1) of this

article shall prescribe the time limit, which shall in no case

be less than six days from the receipt of such notice, within

which the return is to be submitted to the said Consul.

Punishments

Saving the provisions of article 11 of the Act and

articles 19 and 543 of the Criminal Code, it shall be lawful

for any Court of Magistrates, sitting as a court of criminal

judicature, to award for any offence against this Act, or against

any of the regulations made thereunder, any of the

punishments established in the said Code for contraventions

or two or more of such punishments cumulatively according

to circumstances.

The Minister may make regulations generally for

the

better

carrying out of the provisions of this Act and may

regulations.

in particular by such regulations make rules regulating the

recognition of authorizations of authorized hallmarking bodies

and prescribe anything that is or may be prescribed in

accordance with this Act.”.

9. Any article regulation stamped with a mark or marks in

accordance with the provisions of the Ordinance as in force before the

coming into force of this Part shall be deemed to have been duly stamped

in compliance with the Ordinance as amended by this Part.

Part IV

10. (1) This Part amends and shall be read and construed as Amendment of

the Supplies and

one with the Supplies and Services Act, hereinafter referred to as “the Services Act,

principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for trade may by notice in the Gazette establish.

11. Article 2 of the principal Act shall be amended as follows

Amendment of

article 2 of the

principal Act.

(a) subarticle (2) thereof shall be deleted and the present

subarticle (1) shall be renumbered as the whole provision;

(b) in subarticle (1) now renumbered as the whole article:-

(i) the definitions “essential goods”, “requisition”

and “sale” shall be deleted;

(ii) immediately before the definition

“ “prescribed” or “specified” ” there shall be inserted

the following definitions”

“ “Director” has the same meaning assigned

to in the Competition Act;

“goods”, “services” and “traders” have the

same meaning assigned to them by the Consumer

Affairs Act;

“Minister” means the Minister responsible for

commerce;”;

(iii) for the definition “ “prescribed” or

“specified” ” there shall be substituted the following

definitions

“prescribed” means prescribed by regulations

under this Act;

“price” means the final cash purchase price

inclusive of all charge;

(iv) for the definition “undertaking” there shall

be substituted the following

“ “undertaking” means any commercial

undertaking, enterprise or business concern,

whether of a private or public nature, which is

engaged in the manufacture, sale or distribution of

any goods or services within the meaning of this

Act.”.

12. For articles 3 to 11 (inclusive) of the principal Act there

shall be substituted the following articles 3 to 8

3. (1) Consumers have the right to be placed in a

position to purchase adequate and reasonable quantities of

any goods or services that are made available on the market

in order to satisfy their normal requirements.

(2) The provisions of subarticle (1) shall not be

directly enforceable in any court or tribunal, but shall be

adhered to in the interpretation and implementation of this

Act and any regulations made thereunder.

4. (1) Where the Minister is satisfied that due to

Temporary

extraneous factors an abnormal or exceptional situation has

arisen in any particular sector of economic activity having a

relevant social impact, or is satisfied that competition cannot

function or is not functioning in a reasonably effective manner

in such a sector, he may after consulting the Director by

regulation issue a temporary price order in accordance with

the provisions of this article to control the price of any good

or service falling within that sector.

(2) An order made in accordance with subarticle

(1) may specify that particular goods or services, or a

particular class or category thereof, shall be subject to a

maximum price, or a maximum price mark-up or a maximum

percentage of profit as may be specified in the said order.

(3) Any such order may be issued for period not

exceeding six months, and shall specify the date when it shall

enter into force. An order may be extended for an additional

period or periods not exceeding six months each.

(4) An order may not have retrospective effect.

(5) The provisions of this article are without

prejudice to the provisions of the Competition Act.

(6) A breach of an order issued under this article

shall constitute an offence under this Act.

(7) A temporary price order and any extension

thereof shall be published in the Government Gazette.

5. (1) The Minister may make regulations for the

better implementation of this Act and may by such regulations

prescribe anything that is or may be prescribed.

(2) Regulations made under the immediately

preceding subsection may impose obligations on traders and

may establish controls and other requirements in relation to

(a) the prices at which any goods or services

deemed by the Minister to be essential for the life and

well-being of the community may be supplied or sold,

and the regulation of the provision, production, storage,

distribution, purchase and sale of such goods or services,

as may be necessary to ensure the availability of supplies

of such goods on the market;

(b) the invoices and other evidence of the

calculation of prices of such goods and services offered

to consumers and other purchasers.

(3) In pursuance of and for the purposes of the

immediately preceding subarticles, the Minister shall, from

time to time, by notice in the Gazette, designate the categories

of goods and services deemed by him to be essential for the

life or well-being of the community.

(4) The Minister may make also regulations requiring

traders generally or any class or category thereof to keep such

books, accounts and other documents and to make such returns

as may be prescribed.

(5) Regulations made under any of the foregoing

provisions of this article may assign such functions and

responsibilities to the Director as the Minister may consider

appropriate for the better implementation of the provisions

and objectives of this Act and regulations made thereunder.

Requesitioning

6. (1) The Minister may by order in writing provide

for the requisitioning and taking possession and control of

undertakings.

goods in relation to which a price order is in force in

accordance with article 4 of this Act, on such conditions as

may be prescribed. Where any goods are requisitioned as

aforesaid, any officer authorized for this purpose by the

Minister may use or deal with such goods for such purposes

and in such manner as such officer may consider necessary

or expedient and may retain, store or with the specific written

authorization of the Minister sell or otherwise dispose of the

goods as if he were the owner thereof.

(2) In circumstances of an exceptional nature

where he deems it necessary for the protection of consumers

and the general public interest so to do, the Minister may in

writing authorize the Director to take over the running and

management of the whole or part of any undertaking which

produces or provides goods or services in relation to which a

(3) In the course and for the purpose of exercising

any of the functions and powers assigned to him by this Act,

the Minister may request the assistance of the Police for the

purpose of entering and searching premises and for gaining

access to and assuming control over premises and goods.

(4) In the exercise of any of the functions assigned

or delegated to him under this Act, the Director may exercise

all or any of the powers assigned to him under article 12 of

the Competition Act.

7. (1) Any person who contravenes or fails to comply

with any of the provisions of this Act, (including those of

subarticle (5) hereof) or of any regulation made thereunder,

shall be guilty of an offence against this Act.

(2) Proceedings in respect of an offence against

this Act or regulations made thereunder may be commenced

within one year from the commission of the offence.

(3) Any person guilty of an offence against this

Act shall on conviction be liable to

imprisonment for a period not exceeding two years

or to a fine (multa) not exceeding Lm2,000 or both such

fine and imprisonment; or

with or without an additional fine (multa) of not

more than five times the profit made as a result of the

offence;

The court may moreover order

the suspension or cancellation of any licence or

other authorization issued by the Director or any licence

issued in terms of the Trading Licences Act in the name Cap. 441.

of the person so found guilty and may moreover order

the publication of any sentence, or a statement thereof,

passed on the offender.

(4) The provisions of the Probation Act shall not Cap. 446.

be applicable to an offence against this Act.

(5) The provisions of article 23 of the Criminal

Code shall apply with regard to the goods to which the offence

relates.

Responsibility

8. (1) Every trader shall take steps to ensure full

compliance with all the provisions of this Act and of

regulations made thereunder, and shall exercise due diligence

to ensure that the provisions of this Act are not contravened

by any person under his authority, control or charge.

(2) Without prejudice to the provisions of the

immediately preceding sub-article, where an offence against

these regulations is committed by, or an act or omission

amounting to an offence may be attributed to, any individual

acting in the name, or on behalf or in the interest of a company

or other form of partnership or an association or other body

or group of persons or where action is taken against an

individual by virtue of his liability as a director, manager,

secretary or other similar officer of such body, association or

group and it results that an act or omission amounting to an

offence against regulations has occurred, the provisions of

article 8 relating to the suspension or cancellation of any

licence held by the offender or other person as aforesaid shall

apply also to any licence held by or in the name, or on behalf

or in the interest of the company, partnership, association or

other body or group of persons of which the offender or other

person as aforesaid is a director, manager, secretary or other

officer or in whose name or interest or on whose behalf such

person was acting, and such licence shall equally be suspended

or cancelled accordingly.”.

13. (1) Regulations made under the provisions of the principal

Act as in force before the coming into force of this part shall be deemed

to have been made under the corresponding provisions of the principal

Act as amended by this part and may be amended, revoked or substituted

accordingly.

(2) Nothwithstanding the provisions of subarticle (1) hereof

any price order made under the principal Act before the coming into

force of this part are hereby reprealed.

Part V

14. (1) This Part amends and shall be read and construed as

Amendment of the

one with the Income Tax Act, hereinafter in this Part referred to as “the

Tax Act, Cap. 123.

principal Act”.

(2) The provisions of this Part of this Act shall come into force

on such date as the Minister responsible for finance may by notice in

the Gazette establish.

15. Article 9B of the principal Act shall be amended as follows

(a)

in subarticle (1) thereof

(i) immediately before the definition “relevant laws”

there shall be inserted the following definitions

“ “foreign eligible asset” means such foreign asset

as may be prescribed under the External Transactions

Act;

“local eligible asset” means such local asset as

may be prescribed under the External Transactions Act;”;

and

(ii) in the definition “qualifying asset” for the words

“article 39 of the Exchange Control Act”, there shall be

substituted the words “the External Transactions Act”;

(b) in subarticle (2) thereof

(i) in paragraph (a) thereof for the words “qualifying

asset” wherever they appear there shall be substituted the

words “qualifying asset not being a local eligible asset”;

(ii) for paragraph (b) thereof, there shall be substituted

the following

“(b) any income, including capital gains, to the

extent that a qualifying asset represents such income or

an undeclared part of such income or an accumulation

thereof

(i) with respect to a foreign eligible asset,

being income derived by any person during the year

immediately preceding any year of assessment in

respect of which that person has furnished a return

of his income to the Commissioner before the 1 st

September, 2001, or during the year immediately

preceding any year of assessment commencing on

or before the 1 st January, 2001, in respect of which

that person was not required to furnish a return of

his income;

(ii) with respect to a local eligible asset,

being income derived by any person during the year

immediately preceding the year of assessment 2002

or any previous year of assessment in respect of

which that person has furnished a return of his

income to the Commissioner before the 31 st March,

2003, or during the year immediately preceding any

year of assessment commencing on or before the

1 st January, 2002 in respect of which that person

was not required to furnish a return of his income;”;

and

(c) in subarticle (3) thereof, for the words “before the 1 st

September, 2001” there shall be substituted the words “before the

1 st September, 2001 in respect of a foreign eligible asset and 31 st

March, 2003 in respect of a local eligible asset”, and for the words

“before the said date” there shall be substituted the words “before

the 1 st September, 2001 (in respect of a foreign eligible asset) and

the 31 st March, 2003, (in respect of a local eligible asset)”.

16. Nothing in article 15 of this Act shall be deemed to prejudice

any exemption granted under article 9B of the principal Act as in force

before the coming into force of the said article 15.

Part VI

17. This Part amends and shall be read as one with the Cargo

Clearance and Transport Act, hereinafter in this part referred to as the

“the principal Act”.

18. Article 2 of the principal Act shall be renumbered as follows

(a)

in the definition of “cargo clearance and forwarding

agent”

(i) the words from “ “cargo clearance” to the end of

paragraph (a) thereof there shall be substituted the following

“ “cargo clearance and forwarding agent” means

any person who is the holder of a customs permit and

whose business is the following

(a) the making of customs declarations and

the clearing through the Customs Department of

documents relating to cargo; and”; and

(ii) in paragraph (b) thereof for the words “of

consignment;” there shall be substituted the words “of

consignment; and”;

(b) the definition of “licensee” shall be deleted; and

(c) immediately after the definition of “Comptroller”, there

shall be inserted the following new definition

“ “holder of a customs permit” means a person duly

authorised under this Act to act as a cargo clearance and

forwarding agent;”.

In the principal Act, for the words “licence”, “licenced” and

“licensee” wherever they appear including in any marginal note to any

article, there shall be substituted respectively the words “customs

permit”, “authorised” and “holder of a customs permit”.

Immediately after subarticle (3) of article 3 of the principal

Act, there shall be added the following subarticle:–

“(4) The holder of a customs permit must at all times be in

possession of an operator’s permit issued by the Malta Transport

Authority.”.

Article 9 of the principal Act shall be deleted and articles 10 Repeal

of the

and 11 of the principal Act shall be renumbered as articles 9 and 10 principal Act and

subsequent

thereof.

renumbering

of other provisions.

In article 9 of the principal Act as renumbered, for the words Amendment of

“presenting customs document” there shall be substituted the words article

10)

“making customs declarations”.

of the principal Act.

Subarticle 10 (1) of the principal Act as renumbered, shall Amendment of

article

be amended as follows

10 (formerly 11) of

the

principal Act.

(a) for the numbers “3,7,9 or 10” there shall be substituted

the numbers “3,7 or 9”; and

(b) for the words “two hundred liri” there shall be

substituted the words “one thousand liri”.

Immediately after article 10, as renumbered, of the principal Addition of new

article

Act there shall be added the following new article 11

11 to the principal

Act.

11. Nothing in this Act shall derogate from any of the

“Relation

with

provisions of the Import Duties Act.”.

Import Duties

Act, Cap.

337. Part VII

(1) This Part amends the Civil Aviation Act and it shall be Amendment of the

Civil Aviation Act,

read and construed as one with the Civil Aviation Act hereinafter in this Cap. 232

Part referred to as “the principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for civil aviation may by notice in the Gazette

establish and different dates may be so established for different

provisions and different purposes thereof.

Article 2 of the principal Act shall be amended as follows:- Amendment of

article 2 of the

principal Act.

(a) The present provision shall be renumbered as subarticle

(1) thereof;

(b) in subarticle (1) thereof as renumbered

(i) immediately before the definition of “air

service licence” there shall be inserted the following new

definition

“ “air operator’s certificate” means a certificate

granted under article 4 of the Civil Aviation (Air

Operators’ Certificates) Act;

(ii) immediately after the definition of “air

transport service” there shall be inserted the following

new definitions

“ “air transport undertaking” means an

undertaking whose business includes the carriage

by air of passengers or cargo for hire or reward;

“Director” means the Director of Civil

Aviation;

“effective control” means a relationship

constituted by rights, contracts or any other means

which, either separately or jointly and having regard

to the considerations of fact or law involved, confer

the possibility of directly or indirectly exercising a

decisive influence on an undertaking, in particular

by

(a) the right to use all or part of the

assets of an undertaking;

(b) rights or contracts which confer a

decisive influence on the composition, voting

or decisions of the bodies of an undertaking

or otherwise confer a decisive influence on the

running of the business of the undertaking;

“European Union” means the European Union

referred to in the Treaty;”;

(iii) immediately after the definition “Malta” there

shall be inserted the following new definition

“ “Member State” means a state which is a

member of the European Union;”; and

(iv) immediately after the definition “tariff” there

shall be added the following new definition

“ “the Treaty” has the same meaning assigned

to it by the European Union Act, 2003;”; and

(c) immediately after subarticle (1) thereof, as renumbered,

there shall be added the following subarticle (2)

“(2) The Minister may by order from time to time

extend the meaning of Member State to a State associated

with the European Union within the European Economic Area

or any similar association with the European Union and may

by subsequent order amend, revoke or substitute any such

order.”.

Articles 7 and 8 of the principal Act shall be substituted by Substitution

articles

the following

7 and 8 of the

principal

Act.

“Air service

7. (1) The power to grant an air service licence, that

is to say a licence for any air transport service or other purpose

specified in the licence shall be vested in the Director who

shall grant to an air transport undertaking such a licence upon

his being satisfied that the air transport undertaking meets

the requirements of this Act and such other requirements as

may be prescribed.

(2) An air service licence may be granted under

such conditions including rights of access to specific routes

or markets as may be specified in the licence.

(3) An application to the Director for the grant of

an air service licence shall contain such particulars and shall

be accompanied by such fees as may be prescribed.

(4) An air transport undertaking providing an air

transport service shall not be granted an air service licence

unless it shows to the satisfaction of the Director, whenever

it is required by him so to do, that:-

(a) its principal place of business and, if any, its

registered office are located in Malta, and

(b) its main occupation is air transport in isolation

or combined with any other commercial operation of

aircraft or repair and maintenance of aircraft, and

(c) it is owned and continues to be owned directly

or through majority ownership by Member States or

nationals of Member States, who shall at all times have

effective control of the air transport undertaking.

(5) The Director shall only grant an air service

licence to an applicant if such applicant is in possession of a

valid Air Operator’s Certificate specifying the activities to be

covered in the air service licence.

(6) The air service licence shall remain valid for

as long as the air transport undertaking continues to meet the

requirements for the issue thereof. The holder of the licence

shall whenever requested by the Director furnish him with

all pertinent information that the Director may require to be

in a position to ascertain the continued validity of the licence.

(7) As soon as may be practicable after the grant

of any licence under this section, the Director shall cause

notice thereof to be given in the Gazette.

8. (1) If, in the case of any person who is the

holder of an air service licence, the Director is at any time no

longer satisfied that such person

(a) meets the conditions in and under this Act for

the issue and holding of an air service licence; or

(b) is competent and a fit and proper person to

operate aircraft for the purposes authorised by the

licence;

the Director shall, as may appear to him appropriate in the

circumstances, revoke, suspend or vary that licence.

(2) If, as a result of insolvency or similar

proceedings against the holder of an air service licence, the

Director is satisfied that there is no realistic prospect of a

satisfactory financial reconstruction of the holder within a

reasonable time, he shall revoke the licence.”.

In article 9 of the principal Act, immediately after the words

“to which such permission may be subject” there shall be added the

following words “unless that aircraft is being used in the exercise of

traffic rights regarding access of European Union air transport

undertakings on air routes in the territory of the European Union”.

Part VIII

(1) This Part amends and shall be read and construed as

one with the Exchange Control Act, hereinafter in this Part referred to

as “the principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for finance may by notice in the Gazette establish,

and different dates may be so established for different provisions or

different purposes thereof.

(1) For the long title to the principal Act there shall be Substitutes long

and short title to

substituted the following

principal Act.

“An Act to establish a framework for the liberalisation of

external transactions and to provide for the collection of related

information.”.

(2) For the short title to the principal Act there shall be

substituted the following

“External Transactions Act”.

The Arrangement of Act appearing before the principal Act, Deletion of

Arrangement of

shall be deleted.

Act.

In article 1 of the principal Act for the words “Exchange Amendment of

article 1 of the

Control Act” there shall be substituted the words “External Transactions principal Act.

Act”.

For articles 2 to 38 and articles 40 to 45 of the principal Act Substitution of

articles

there shall be substituted the following articles “2 to 10”

2 to 38 and 40 to 45

of

the principal Act.

2. (1)

In this Act unless the context otherwise

“Interpretation.

requires –

“capital transactions” means external transactions

arising from the transfer or movement of capital and

includes

(a)

transfers of immovable property;

(b) direct investments;

(c) the issue, sale or purchase of securities

including shares and stock in the capital of a

company, debentures, certificates of deposit and any

other similar instrument acknowledging

indebtedness;

(d) the issue, sale or purchase of units in a

collective investment scheme, life and annuity long-

term insurance policies whether index-linked or not;

(e) lending, borrowing and payment or

receipt of amortisation on loans;

(f) granting of guarantees or any other form

of security for payment;

(g) warrants, options, futures and other

derivatives as well as any other financial instrument

entered into for investment purposes;

(h) deposits with credit institutions;

(i)

gifts and endowments; and

(j) any other type of transaction which the

Minister may, after consultation with the Central

Bank, determine by notice in the Gazette;

“Central Bank” means the Central Bank of Malta

established under the Central Bank of Malta Act;

“current transactions” means external

transactions arising from current flows and include

(a) foreign trade in goods and services

including interest payments, dividend, royalties,

reinvested earnings and distributed profits;

(b) other current business payments

arising from services, short-term banking and credit

facilities; and

(c) remittance for family living expenses;

“eligible asset” means deposits as defined in the

Banking Act, securities including shares and stock in

the capital of a company, debentures, certificates of

deposit, bonds, notes and any other instrument

acknowledging indebtedness, units in a collective

investment scheme, life and annuity long term insurance

policies, whether index-linked or not, precious metal,

bullion, warrants, options, futures and other derivatives

as well as any other financial instruments entered into

for investment purposes, and also includes any other asset

as may be determined from time to time by the Minister

by notice in the Gazette;

“European Union” means the European Union

referred to in the Treaty;

“external transactions” includes both capital and

current transactions involving operations between

resident and non-resident persons or other entities,

whether in or outside Malta, and may also include

operations involving foreign exchange by a resident or

between residents;

“foreign exchange” means any note, coin, cheque,

draft, travellers’ cheque, letter of credit, promissory note,

bill of exchange, voucher, credit or debit card or other

card or means in which value is inputted through

electronic or magnetic methods and which any

unspecified person is able to use for payment in lieu of

currency, or other means of payment expressed in the

currency of any country which is not legal tender in Malta

and references in this Act to foreign exchange include

references to any right to receive on demand foreign

exchange in respect of any credit or balance at any credit

institution anywhere;

“Member State” means a state which is a member

of the European Union;

“Minister” means the Minister responsible for

finance;

“National Statistics Office” means the National

Statistics Office established under the Malta Statistics

Authority Act;

“non-resident” means any person, body corporate

or other entity which is not a resident;

“payment” means –

(a) any event which, wholly or in part,

extinguishes a debt of a sum of money between a

resident and a non-resident in connection with an

external transaction;

(b) any transfer of funds, on account or in

cash, between Malta and a foreign country carried

out by a resident who transfers funds to or

repatriates funds from his account held by him

abroad;

(c) any transfer of funds on an account or in

cash between Malta and a foreign country for which

the principal and the beneficiary are both residents;

(d) any transfer of funds in foreign exchange

carried out in Malta between residents;

“resident” means

(a) any natural person regardless of

nationality, whose place of residence is ordinarily

in Malta or who has resided in or has the intention

to reside in Malta for a continuous period of one

year;

(b) any body corporate incorporated in or

under the laws of Malta or of a Member State, or

any entity which operates from or is otherwise

registered in Malta;

(c) any natural person regardless of

nationality, whose place of residence is ordinarily

in a Memeber State or who has resided in or has

the intention to reside in a Member State for a

continuous period of one year;

(d) any body corporate incorporated in or

under the laws of a Member State, or any entity

which operates from or is otherwise registered in a

Member State;

“the Treaty” has the same meaning assigned to it

by the European Union Act, 2003.

(2) The Minister may appoint the Central Bank

to act as agent for the said Minister for any one or more of the

purposes of this Act, but any such appointment shall be without

prejudice to the exercise of any such power by the Minister.

(3) For such time as the Central Bank is appointed

as agent for the Minister under subarticle (2), the references

in this Act to the Minister shall, to the extent and subject to

the terms and conditions of such appointment, be deemed to

include references to the Central Bank. Notice of any such

appointment, and of any revocation of, or change in the terms

and conditions of such appointment, shall be published in the

Gazette.

PART II

LIBERALISATION AND SAFEGUARD MEASURES

Liberalisation.

3. Unless otherwise specified by means of regulations

or orders issued by the Minister under articles 4 and 5 all

external transactions and related payments may be carried

out without restriction.

4. (1) Where exceptional circumstances arise, the

Restrictions

Minister

may, on the recommendation of the Central Bank,

circumstances. make regulations imposing such restrictions on capital

transactions and related payments, whether of a specific or a

generic nature, as may be deemed necessary

Provided that such restrictions shall not be imposed in

relation to a Member State.

(2) For the purposes of subarticle (1), exceptional

circumstances shall be deemed to exist, where the Minister

acting upon the recommendation of the Central Bank, declares

that

(a) there is a sudden crisis in Malta’s balance of

payments; or

(b) movements of capital to or from Malta cause

or threaten to cause serious difficulties for the stability

of the financial system.

(3) Regulations made under subarticle (1) shall be

revoked by the Minister without delay as soon as the grounds

which gave rise to such restrictions cease to exist and, in any

case, shall not remain in effect for a period exceeding six

months.

5. The provisions of articles 4 and 5 are without

prejudice to the powers granted by the National Interest

(Enabling Powers) Act to impose controls or restrictions on

capital or other transactions or related payments in respect of

any state, person or group of persons whether arising from

Malta’s international obligations under the United Nations

Charter, the Treaty or otherwise unilaterally to defend Malta’s

national interests.

PART III

COLLECTION OF INFORMATION AND ACCESS

TO RECORDS

6. Without prejudice to any other provision of this Act,

information.

the Minister may require any person in Malta to provide such

information and, or clarification as the Minister may consider

necessary for the purpose of ensuring compliance with any

regulations made under Part II of this Act.

7. The Minister may by regulations require any person

to declare to the Comptroller of Customs the import or export

by such person of banknotes and coins denominated in Maltese

Liri and, or in foreign exchange, and, or precious metals into

or from Malta in such amounts as may be specified in such

regulation and to disclose such other information as may be

prescribed in such regulations regarding such import or export.

8. Without prejudice to the previous provisions of this

information.

Act, the Minister may after consultation with the Central Bank

and the National Statistics Office by regulations require any

person within such time and in such manner as may be

prescribed to furnish the Minister such information, return or

other detail relating to external transactions as may be required

to collect, compile and disseminate statistical information on

external transactions.

9. (1) Except for the purpose of any prosecution for

dissemination

an offence against the Act with the written consent of the

information.

individual or his representative, no information which can be

related to an identifiable person and which is obtained under

this Act shall be disseminated, shown or communicated to

any person or body.

(2) Notwithstanding the provision of subarticle

(1), the Minister may disclose any information provided or

obtained under this Act, even where this relates to an

identifiable person to any body or authority in Malta

responsible for the collection of any tax, and may likewise,

on the basis of any agreement with other states which provide

for the reciprocal exchange of such information disclose

information to similar bodies or authorities in the states

Provided that

(a) the bodies or authorities to whom the

information is disclosed are subject to obligations of

secrecy which are equivalent to those applying under

the law of Malta; and

(b) an undertaking is obtained from such bodies

or authorities that the information provided will only be

used for the purposes for which it was requested and

will be kept confidential and will not be communicated

to anyone who is not employed by the authorities and

who is not subject to a similar duty of secrecy in respect

of the said information.

10. (1) Regulations under this Act imposing

restrictions on any transactions, or any obligation to report,

provide statistics or other information may also provide that

any person who contravenes any provision thereof shall be

guilty of an offence and shall be liable on conviction to such

penalty being not more than a fine (multa) of not more than

twenty thousand liri, and such regulations may moreover

provide for administrative penalties in lieu of criminal

proceedings, the procedures therefor as well as for appeals

from decisions in connection therewith to the Financial

Services Tribunal established under article 21 of the Malta

Financial Services Authority Act or such other body as may

be prescribed.

(2) No criminal proceedings for any offence under

such regulations may be commenced without the consent of

the Attorney General.”.

Article 39 of the principal Act shall be renumbered as article Amendment of

article 39 of the

11 and shall be further amended as follows:-

principal Act.

(a) subarticles (2),(3) and (4) thereof shall be renumbered

as subarticles (1),(2) and (3) respectively;

(b) in subarticle (1) as renumbered, for the words “under

subarticle (1), shall be deemed not to have committed an offence

under this article” there shall be substituted the words “under

subarticle (1) of article 39 of the Exchange Control Act as in force

on the 1st July, 2003, or such other law as the Minister may

prescribe, shall be deemed not to have committed an offence under

the said article 39 or other law as prescribed”;

(c)

in subarticle (2) as renumbered -

(i) the words “subarticle (2)” shall be substituted by

the words “subarticle (1)”; and

(ii) for the words “without the need to obtain a permit

under this Act” there shall be substituted the words “without

the need to obtain such permits ot to comply with such

requirements under this or any other law as may be

prescribed”; and

(d) in subarticle (3) as renumbered, for the words “subarticle

(3)” there shall be substituted the words “subarticle (2)”.

The Minister responsible for finance may in the notice made

under subarticle 29(2) provide that any restriction or obligation existing

under the principal Act as in force before the issue of such notice remains

in force in respect of any matter indefinitely or for such time as may be

stated in the notice and the provisions of the principal Act as in force

before the issue of such notice shall continue to apply with respect to

such restriction or obligation.

Part IX

(1) This Part amends and shall be read and construed as

one with the Immovable Property (Acquisition by Non-Residents) Act,

hereinafter in this part referred to as “the principal Act”.

(2) The provisions of this Part shall come into force on such

date as the Minister responsible for finance may by notice in the Gazette

establish and different dates may be so established for different

provisions and different purposes of this Part.

Article 2 of the principal Act shall be amended as follows:–

(a) before the definition “government” there shall be inserted

the following new definitions

“ “building” includes a plot of land and for the purposes

of article 6 the projected cost of its development;

“continuous period” shall be calculated by ignoring any

periods totalling less than ninety days in any calendar year

during which an individual is not in Malta provided that such

periods do not exceed ninety days in any given calendar year;

“European Union” means the European Union referred

to in the Treaty;”;

(b) after the definition “Malta” there shall be inserted the

following definition

“ “Member State” means a state which is a member of

the European Union;”; and

(c) for the definition “Minister” and “non-resident person”

there shall be substituted the following definitions

“ “Minister” means the Minister responsible for finance,

and except for the purposes of an order made in terms of

article 6 (1) or regulations made in virtue of article 8, includes

where delegated in writing by the Minister, and public officer

in the Ministry of Finance so delegated by the Minister;

“non-resident person” means and includes

(a) any individual who is not a citizen of Malta

or of another Member State; or

(b) a citizen of Malta or of another Member State,

even in either case, if in possession of a valid residence

permit, who has not been resident in Malta for a

minimum continuous period of five years at any time

preceding the date of acquisition; or

(c) any body or other association of persons, and

any authority, institution, organisation, fund, trust, firm

and any other entity whatsoever, whether corporate or

not, if

(i) it is constituted, formed, established,

incorporated or registered in, or under the laws of,

a state other than Malta or another Member State;

or

(ii) it has its registered address, principal

place of residence or of business in a state other

than Malta or another Member State; or

(iii) twenty-five per cent or more of its share

or other capital is owned by a non-resident person

or is registered in the name of a company licensed

to act as a nominee company; or

(iv) it is in any manner and whether directly

or indirectly controlled by one or more non-resident

persons;

“primary residence” means the dwelling house in which

an individual habitually resides in, or intends to habitually

reside in, as his principal place of abode, whether in Malta or

elsewhere;

“resident of Malta” means an individual who is

(a) a citizen of Malta or another Member State

who has been resident in Malta for a minimum

continuous period of five years preceding the date of

acquisition;

(b) the spouse, of whatever nationality and

wherever resident, of a citizen of Malta or another

Member State where such spouses are acquiring together

on the same deed;

“residence permit” means a residence permit issued in

terms of the Immigration Act;

“secondary residence purposes” means purposes other

than for primary residence or for any of the purposes listed in

article 3(2) (b) or (3);

“special designated area” means a zone described in the

First Schedule and such other zone as the Minister may from

time to time by order in the Gazette add to such schedule;

“the Treaty” has the same meaning as is asigned to it in

article 2 of the European Union Act, 2003.”.

Articles 3 to 7 of the principal Act shall be renumbered as

articles 4 to 8 respectively.

Immediately after article 2 of the principal Act there shall be

inserted the following new article 3:–

3. (1) Without prejudice to the other provisions of

this Act

(a) a resident of Malta may acquire by an act inter

vivos immovable property in Malta by or under any title

without the necessity of obtaining a permit under this

Act;

(b) a citizen of Malta and a citizen of a Member

State who in either case is not a resident of Malta may

not, without the necessity of obtaining a permit under

this Act, acquire imovable property for secondary

residence purposes by an act inter vivos in Malta.

(2) For the purposes of this Act “immovable

porperty for secondary residence purposes” shall exclude

(a) any immovable property which is to serve as

the primary residence for the person acquiring the

immovable property; or

(b) such immovable property the acquisition of

which is required for the carrying out of such person’s

business activities or the supply of services by such

person.

(3) A person, other than a physical or a non-

resident person, may acquire by an act inter vivos immovable

property in Malta without the necessity of obtaining a permit

under this Act where such immovable property is required

for the purpose of carrying out the activity for which it has

been set up.”.

For articles 5 and 7 as renumbered of the principal Act, there Substitution of

articles 5 and 7

shall be substituted the following articles 5 and 7

of the principal Act.

5. (1) The provisions of article 4 shall not apply in

respect of

(a) any immovable property devolving cause

mortis on any person, wherever resident, provided that

the person from whom the property devolves had

acquired such immovable property, where applicable,

in accordance with the provisions of this Act; or

(b) the acquisition of immovable property by any

person, wherever resident, in a special designated area;

or

(c) the acquisition of any further divided or

undivided share in immovable property by any person,

wherever resident, where such person had previously

acquired a share in such immovable property in

accordance with the provisions of this Act; or

(d) the transfer of immovable property in an

inheritance between co-heirs; or

(e) the partition of immovable property between

co-owners; or

(f) the acquisition of immovable property by a

company or other commercial partnership, not being a

non-president person, from one or more of its members

holding over fifty per cent interest in, or of its share

capital; or

(g) the donation of immovable property to a

spouse, descendant or an ascendant in the direct line and

their relative spouses, or in the absecne of descendents

to a brother or sister and their descendenst, provided such

immovable property had been acquired in accordance

with the provisions of this Act, where applicable.

(2) The party acquiring the property or on whom

the property is assigned in a paritition or devolves in

accordance with any one or more of the exceptions listed under

subarticle (1) shall declare on the deed that such transfer is so

covered, and the notary publishing the deed shall warn the

said person of the importance of the truthfulness of such

declaration and include such declaration in the said deed.

(3) Any notary who receives any deed which does

not contain a declaration as is required under the provisions

of this article, or who fails to warn the parties particularly as

to the importance of the truthfulness of such declaration or to

record in the deed he has compiled with such requirement,

shall be guilty of an offence under this Act, and shall on

conviction be liable to a fine (multa) of not less than one

thousand liri and not more than ten thousand liri.

7. (1) It shall not be lawful for any person, without

property to be

the

consent

in writing of the Minister, to make use, or to permit

used only for

the purpose the use, of any immovable property acquired by virute of a

permit granted under article 6, in any manner or for any

purpose other than that indicated in the application for such

permit.

(2) Any person authorised to acquire immovable

property in Malta in accordance with the provisions of article

3 shall, on the deed transferring title, declare that he qualifies

to acquire such property and shall further state the reasons

for such qualification as well as, where required to do so by

this Act, the purpose of such acquisition, and the notary

publishing the deed shall warn the said person fo the

importance of the truthfulness of such declaration and include

such declaration in the said deed.

(3) Any notary who receives any deed which does

not contain a declaration as is required under the provisions

of this article, or who fails to warn the parties particularly as

to the important of the truthfulness of such declaration or to

record in the deed that he has complied with such requirement,

shall be guilty of an offence under this act, and shall on

conviction be liable to a fine (multa) of not less than one

thousand liri and not more than ten thousand liri.

(4) If any act is committed or omitted in

contravention of any of the provisions of subarticles (1) or

(2) or of any condition, restriction, limitations or qualification

contained in any prmit or consent given under this Act, the

person to whom the permit or consent was last granted and

any other person committing or omitting or permitting the

commission or omission of any such act as aforesaid, shall

be guilty of an offence under this Act and shall be liable, on

conviction, to a fine (multa) not exceeding ten thousad liri

(LM10,000) or double the market value of the immovable

property so acquired, whichever is the higher amount, and, in

the case of a continuing offence, to a further fine (multa) of

not less than one hundred liri and not exceeding one thousand

liri (LM1,000) for each day, excluding the first one hundred

and eighty days, during which the offence continues

Provided that no proceedings shall be instituted against

such person within one hundred and eighty days from the

date of acquisition, and no proceedings shall be taken if, within

such period of one hundred and eighty days, such person has

remedied the contravention and has conformed with the

provisions of this Act or has otherwise lawfully transferred

the property

Provided further that should any permit or consent be

required to conform with the law and such permit or consent

is refused, no proceedings shall be instituted against such

person, and those already commenced shall be withdrawn, if

such person transfers the immovable property within one

hundred and eighty days from the date of such refusal.

(5) Saving the provisions of the provisos to

subarticle (4), nothin in the said subarticle shall be construed

as validating anything does not in conformity with any

condition, restriction, limitation ro qualfication contained in

a permit or consent given under this Act.”.

Article 6 of the principal Act as renumbered shall be amended

as follows

(a)

in subarticle (1) thereof

(i) for the words “grant permission” there shall be

substituted the words “grant a permit”;

(ii) for the words “in the permission” there shall be

substituted the words “in the permit”;

(iii) for the words “such permission” there shall be

substituted the words “such permit”;

(iv) for the words “by a non-resident” there shall be

substituted the words “by a non-resident person”;

(v) for the words “in such form and in such manner, if

any, as may be prescribed and such information as may be

prescribed or as the Minister may require has been given,”

there shall be substituted the words “in line with such policies,

such form and in such manner, if any, as may be established

by regulations made under this Act, and such information as

may be prescribed by regulations has been given”;

(vi) in paragraph (a) of the proviso thereto the words

“in the case of any person mentioned in paragraph (b) of the

definition of a non-resident person in section 2 of this Act”

shall be deleted;

(vii) in paragraph (b) of the proviso thereto for the

words “(or such other sum as the Minister may from time to

time by order in the Government Gazette establish)” there

shall be substituted the words “(which sum shall be adjusted

in line with an immovable property price index that shall be

published annually in the Gazette by the National Statistics

Office)”;

(viii) for the words “other immovable property in

Malta” in paragraph (b) of the proviso therto, there shall be

substituted the words “other immovable property in Malta

other than immovable property the acquisition of which is

exempted under article 4(2) or 5”;

(ix) immediatly after paragraph (b) of the proviso

thereto, there shall be added the following new paragraph

(c);

“(c)

the immovable property is either

(i) a garage situated within five hundred

metres from the applicant’s previously acquired

residence; or

(ii) an adjoining parcel of land or building

intended to serve as an extension to and be

integrated with, the applicant’s previously acquired

residence;”;

(x) for the words “the Minister may withhold his

permission” in the further proviso thereto, there shall be

substituted the words “the Minister may withhold the granting

of a permit”;

(b) in subarticle (2) thereof for the word “will” wherever it

occurs, there shall be substituted the word “succession” and for

the word “permission” there shall be substituted the word “permit”;

(c) for subarticle (3) thereof there shall be substituted the

following

“(3) The conditions, restrictions, limitations and

qualifications under which the permit referred to in this article

is granted shall be those listed in the Second Schedule.”; and

(d) for the words “permission” and “permissions” wherever

they occur in subarticles (4) and (5) thereof, there shall be

substituted respectively the words “permit” and “permits” and for

the words “article 3” wherever they occur in subarticle (4) there

shall be substituted the words “article 4”.

Article 8, as renumbered, of the principal Act shall be

amended as follows

(a) subarticles (2) and (3) thereof shall be deleted, and

subarticle (1) shall be renumbered as the whole article 8;

(b) for the word “permission” wherever it occurs, there shall

be substituted the word “permit”;

(c) paragraphs (b) to (d) shall be renumbered as paragraphs

(c) to (e) respectively, and immediately after paragraph (a) there

shall be inserted the following new paragraph (b)

“(b) amend, cancel or substitute any of the Schedules

to this Act;”;

(d) for the word “5” in paragraph (c) there shall be

substituted the word “6”;

(e) in paragraph (d) for the words “one thousand liri and

not exceeding fifty liri”, there shall be substituted the words “ten

thousand liri or double the market value of the immovable acquired

and not exceeding one thousand liri”;

(f) in paragrpah (e) the word “non-resident” shall be deleted.

Immediately after article 8 as renumbered of the principal

Act, there shall be added the following new article:–

9. The provisions of this Act shall also apply where a

transactions.

person acquires shares or other equitable interest in a

commercial partnership in order to circumvent and evade the

requirement of a permit under this Act, and where any person

so acquires such shares or equitable interest for such purpose

without first obtaining a permit, the provisions of this Act,

including, without prejudice to the generality hereof, the

provisions of articles 4 and 7 thereof, shall apply to the

acquisition of such shares or equitable interest as if such

acquisition were of the immovable property held by such

partnership.”.

Immediately after article 8 of the principal Act as renumbered, Addition

of Schedules to the

there shall be added the following schedules

principal Act.

Until such time as the National Statistics Office publishes

the adjustments in accordance with article 6 of the principal Act, the

amounts established in Legal Notice 98 of 1999 shall continue to apply.

Part X

(1) This Part amends and shall be read and construed as one Amendment of the

with the Interpretation Act, hereinafter referred to as “the principal Act.” Interpretation

Act, Cap. 249.

(2) This Part shall come into force on such date as the Prime

Minister may by notice in the Gazette establish.

Immediately after article 15 of the principal act there shall Addition

new article

be added the following new article

16 to the

principal Act.

16. Where any act or document is required to be

published in the Gazette, it shall be sufficient that such act or

document is published in electronic format on CD Rom or is

made available at a publicly accessible website on the internet

and notice of such publication in electronic format on CD

Rom or the availability of the document on the website is

published in the Gazette

Provided that where an act or document is so published

in electronic format on CD Rom or is so made available on a

publicly accessible website on the internet, a hard copy thereof

is made available for public inspection during normal office

hours at a government department or office and notice of such

availability is also published in the Gazette.”.

Part XI

(1) This Part amends and shall be read and construed as Amendment of the

Extradition Act,

one with the Extradition Act, hereinafter in this Part referred to as “the Cap 276.

principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for Justice may by notice in the Gazette establish.

Article 7 of the principal Act shall be amended as follows

Amendment of

article 7 of the

principal Act.

(a) in subarticle (1) thereof, immediately after the words

“any country with which an arrangement” there shall be inserted

the words “(including any arrangement, decision, direction or other

act of the European Union made under or pursuant to the Treaty)”;

and

(b) immediately after subarticle (4) thereof there shall be

added the following subarticle

“(5) For the purposes of this article “the Treaty” has

the same meaning as is assigned to it by the European Union

Act, 2003.”.

Part XII

(1) This Part amends and shall be read and construed as

one with the Tobacco (Smoking Control) Act, hereinafter referred to as

“the principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for health may by notice in the Gazette establish.

Subarticle (2) of article 2 of the principal Act shall be deleted

and subarticle (1) thereof shall be renumbered as the whole provision

thereof, and the article as renumbered shall be amended as follows

(a) immediately before the definition of “cigarette” there

shall be inserted the following new definitions

“ “advertising” means any form of commercial

communication with the aim of directly or indirectly

promoting tobacco products;

“authorised officer” includes any person attached to the

Department of Health and duly authorised by the

Superintendent to exercise any power of the Superintendent

under this Act and includes police officers;”;

(b) immediately after the definition of “cigarette” there shall

be inserted the following new definition

“ “information society services” means services within

the meaning of Article 1(2) of Directive 98/34/EC of the

European Parliament and of the Council of 22 June 1998

laying down a procedure for the provision of information in

the field of technical standards and regulations and of rules

on Information Society Services as amended by Directive 98/

48 EC (published in the Official Journal of the European

Union under reference OJ L 204, 21.7.1998 1937 and OJ L

217, 5.8.1998, respectively;”;

(c) immediately after the definition of “smoking requisites”

there shall be inserted the following new definition

“ “sponsorship” means any form of public or private

contribution to any event, activity or individual with the aim

or direct or indirect effect of promoting a tobacco product;”;

(d) in the definition of “tobacco” for the words “for tobacco”

there shall be substituted the words “for tobacco, and includes any

tobacco product”; and

(e) immediately after the definition of “tobacco” there shall

be inserted the following new definition

“ “tobacco product” means products for the purposes of

smoking wholly or partly of tobacco.”.

Article 4 of the principal Act shall be amended as follows:- Amendment of

article 4 of the

principal Act.

(a) the whole article 4 as presently appearing shall be

renumbered as subarticle (1) of article 4; and

(b) immediately after subarticle (1) as renumbered, there

shall be added the following new subarticles (2),(3) and (4):-

“(2) Radio, television and other programmes broadcast

by other mediums shall not be sponsored by undertakings

whose principal activity is the manufacture or sale of tobacco

products.

(3) No tobacco product shall bear the brand name, trade

mark, emblem or other distinctive feature of any other product

or service, unless the tobacco product has been traded under

that brand name, trade mark, emblem or other distinctive

feature previously to such other project.

(4) The brand name, trade mark, emblem and any other

distinguishing feature of the product or service shall be

presented in a manner clearly distinct from that used for the

tobacco product.”.

Article 5 of the principal Act shall be renumbered as article Renumbering of

article 5 of the

7 thereof.

principal Act.

For article 6 of the principal Act there shall be substituted Substitution

article 6 of the

the following new articles 6 and 6A

principal Act.

6. (1) Advertising in the press and other printed

“Prohibition

publications

shall be limited to publications intended

exclusively for professionals in the tobacco trade and to

promotion. publications which are printed and published in third countries,

where those publications are not principally intended for the

local market.

(2) Other advertising in the press and other printed

publications shall be prohibited.

(3) Advertising that is not permitted in the press and

other printed publications shall not be permitted in information

society services.

Sponsorship.

6A. (1) The sponsorship of events or activities

involving or taking place in more than one Member State of

the European Union or otherwise having cross-border effect

shall be prohibited.

(2) Any free distribution of tobacco products in

the context of sponsorship of events as are referred to in

subarticle (1), having the purpose or the direct or indirect

effect of promoting such products shall be prohibited.”.

Article 7 of the principal Act shall be renumbered as article

5 thereof.

For articles 8 and 9 of the principal Act there shall be

substituted the following

8. (1) Each packet of cigarettes and any other

tobacco product imported, sold, distributed or supplied, by

way of compensation or otherwise, shall contain such

information including information as to the ingredients and

quantities thereof.

(2) For the purpose of subarticle (1) and for any other

purpose of this Act, the Superintendent may request

manufacturers and importers of cigarettes and tobacco

products to submit a list of all ingredients and the quantities

thereof as are used in the manufacture of such cigarette or

tobacco products.

9. The Minister may make regulations for the better

Regulations.

carrying out of the provisions of this Act and for reducing

harm resulting from the consumption of tobacco or tobacco

products, and in particular and without prejudice to the

generality of that power, may make regulations for all or any

other following purposes

(a) to prescribe that health warnings as are

referred to in article 10 shall be affixed in prominent

positions in any public place and inside any vehicle

licensed or used for public transport, and that it shall be

the duty of the licensee and the driver, as the case may

be, to comply with such regulation;

(b) to prescribe the maximum permissible tar,

nicotine and other content which cigarettes or other forms

of tobacco or tobacco products may contain, and the

maximum yield of any such substances which may be

obtained therefrom;

(c) to prescribe the conditions under which the

sale or distribution of cigarettes, cigars or other tobacco

products shall be prohibited or restricted;

(d) to prohibit or control any advertisement

directly or indirectly connected with tobacco or with

tobacco smoking;

(e) to control the number of cigarettes which may

be offered for sale as any one retail packet and to prohibit

the sale of single cigarettes

Provided that the Minister shall not make

regulations prohibiting the sale of cigarette packets

containing such number of cigarettes as the cigarette

packets as are on sale on the day of the coming into

force of this paragraph;

(f) to control the presentation of cigarettes, cigars

and other tobacco products;

(g) to prohibit or control smoking in any place or

part thereof; and

(h) to prescribe any other matter which may be

or is required to be prescribed by this Act.”.

In article 10 of the principal Act, the words “language,” shall Amendment of

article 10 of the

principal Act.

In subarticle (1) of article 11 of the principal Act, for the

words “a correct declaration of the content of tar and nicotine in each

cigarette” there shall be substituted the words “such information as the

Superintendent may from time to time by regulations require”.

Article 12 of the principal Act shall be renumbered as

subarticle (1) thereof, and immediately after subarticle (1) as renumbered

there shall be added the following new subarticle

“(2) No person may sell or authorise the sale of tobacco

products in or from -

(a) hospital grounds, clinics, pharmacies or any other

health care establishments;

(b) school grounds, colleges, or any other educational

institution;

(c)

sports or athletic facilities.”.

Article 13 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “age of sixteen

years” there shall be substituted the words “age of eighteen years”;

(b) in subarticle (2) thereof, for the words from “in

restaurants” to “which sales from” there shall be substituted the

words “where”; and

(c) in subarticle (3) thereof, for the words “under sixteen

years” there shall be substituted the words “under eighteen years”.

Article 14 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, immediately after the words

“or pre-recorded;” there shall be added the words “or in any other

place or establishment or part thereof as the Minister may from

time to time prescribe;”, and for the words “under sixteen years”

there shall be substituted the words “under eighteen years”;

(b) subarticle (2) thereof shall be deleted; and

(c) subarticle (3) thereof shall be renumbered as subarticle

(2) thereof.

For subarticle (2) of article 18 of the principal Act there shall Amendment of

article 18 of the

be substituted the following

principal Act.

“(2) Any person guilty of an offence against this Act or

against any regulations made under this Act, shall, without prejudice

to his liability under any other law, be liable, on a first conviction,

to a fine (multa) of not less than one hundred liri and not exceeding

five hundred liri, and where the act or omission constituting the

offence subsists for more than a day, the Court shall in addition

impose a fine (multa) of not less than ten liri and not more than

fifty liri for each day in which such act or omission subsists, and

on a second or subsequently conviction, in addition to such fines,

and, at the request of the prosecution, to imprisonment for a term

not exceeding three months, and to suspension of the licence of

the premises or public transport means where the offence took

place, for a period of not less than one week and not exceeding

one month.”.

Subarticle (1) of article 19 of the principal Act shall be Amendment of

article 19 of the

amended as follows

principal Act.

(a) in paragraph (a) thereof, for the words “as Chairman”

there shall be substituted the words “or his representative, as

Chairman”;

(b) for paragraph (d) thereof, there shall be substituted the

following

“(d) the Director of Health Promotion, or his

representative;”; and

(c) for subparagraphs (i) and (ii) of paragraph (e) there shall

be substituted the following

“(i) a health promotion officer from the Department

of Health;

(ii) one member of a Consumer Association;”.

Part XIII

This Part amends and shall be read and construed as one Amendment

Eurocontrol Act,

with the Eurocontrol Act hereinafter in this Part referred to as “the Cap. 333.

principal Act”.

Article 2 of the principal Act shall be amended as follows

(a) the present provision shall be renumbered as subarticle

(1) thereof;

(b) in subarticle (1) thereof, as renumbered

(i) in the definition of “Agency” the words “Air Traffic

Services” shall be deleted;

(ii) for the definition of “Air Navigation Order” and

the words “L.N. 10 of 1963” in the marginal note there shall

be substituted the following

“Air Navigation Order” means the Air Navigation

Order, 1990, or any Order substituting the same;”;

(iii) the definitions of “Commission”, “Contracting

State”, “Multilateral Agreement”, “State addressed” and

“State of origin” shall be deleted;

(iv) immediately after the definition of “Air Navigation

Order” there shall be inserted the following definitions

“ “Contracting Party” means a State which is or

becomes a party to the Convention;

“Contracting Party addressed” in relation to a

decision means the Contracting Party in which the

decision is sought to be enforced;

“Contracting Party of Origin” in relation to a

decision means the Contracting Party in which the

decision was given;”;

(v) for the definition of “Convention” there shall be

substituted the following

“ “Convention” means the Convention relating to

Co-operation for the Safety of Air Navigation

(Eurocontrol) signed in Brussels on the 13 th December,

1960, as amended by the Additional Protocol thereto

signed at Brussels on the 6 th July 1970, in its turn

amended by the amendment to the Additional Protocol

signed at Brussels on the 21 st November, 1978, and as

amended by the Protocols amending the Convention

signed in Brussels on the 12 th February, 1981 and the

27 th June 1997, which Convention and Protocols are

deposited in the Archives of the Kingdom of Belgium; a

consolidated text of the Convention and Protocols is

reproduced in the Schedule to this Act;”;

(vi) in the definition of “Eurocontrol” for the words

from “the Permanent Commission” to the words “in that

Organisation”, there shall be substituted the words “the

General Assembly, the Council and the Agency comprised in

that Organisation”;

(vii) in the definition of “manager” for the words from

“article 61” to the words “Aviation Act;”, there shall be

substituted the words “article 69 of the Air Navigation Order,

or the corresponding provision of any order substituting the

same;”; and

(viii) in the definition of “relevant authority” for the

words “contracting state” there shall be substituted the words

“Contracting Party”; and

(c) immediately after subarticle (1) thereof as renumbered,

there shall be added the following subarticle (2)

“(2) In the case of inconsistency between the text of

the Convention as reproduced in the Schedule to this Act and

the text of the Convention deposited in the Archives of the

Kingdom of Belgium, the latter shall prevail.”.

In article 3 of the principal Act, the words “or in the Amendment of

article 3 of the

Multilateral Agreement” shall be deleted.

principal Act.

The marginal note “L.N. 10 of 1963” to article 6(5) of the Amendment

article 6 of the

principal Act shall be deleted.

principal Act.

In article 7 of the principal Act, the words “or the Multilateral Amendment

article 7 of the

Agreement” shall be deleted.

principal Act.

In subarticle (3) of article 10 of the principal Act, for the Amendment of

article 10 of the

words “Article 22” wherever they appear, there shall be substituted the principal Act.

words “Article 25”.

For the words “Article 13 of the Multilateral Agreement” in Amendment of

article 11 of the

subarticle (1) of article 11 of the principal Act there shall be substituted principal Act.

the words “Article 8 of Annex IV to the Convention”, and the words

“or the Multilateral Agreement” in subarticle (3) of the said article 11

of the principal Act shall be deleted.

Article 12 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “Contracting

State” there shall be substituted the words “Contracting Party”;

(b) in subarticle (3) thereof, for the words “Article 15 of

the Multilateral Agreement” and for the words “Article 16 of the

said Multilateral Agreement” there shall be substituted respectively

the words “Article 11 of the Annex IV to the Convention” and the

words “Article 12 of Annex IV to the Convention”;

(c) in subarticle (4) thereof, for the words “Article 13 of

the Multilateral Agreement” and for the words “Article 18 of the

Multilateral Agreement” there shall be substituted respectively the

words “Article 8 of Annex IV to the Convention” and the words

“Article 14 of Annex IV to the Convention”; and

(d) in subarticle (8) thereof, after the words “Code of

Organisation and Civil Procedure” there shall be inserted the words

“or in any other law relating to the recognition and enforcement of

foreign judgements”.

In article 14 of the principal Act, and in the marginal note

thereto, the words “and to the Multilateral Agreement”, wherever they

appear, shall be deleted.

In subarticle (1) of article 15 of the principal Act, for the

word “Schedules” there shall be substituted the word “Schedule”.

For the Schedules to the principal Act, there shall be

substituted the following Schedule

A

“Schedule

(Articles 2 and 14)

CONSOLIDATED VERSION WHICH INCORPORATES THE TEXTS

REMAINING IN FORCE OF THE EXISTING CONVENTION AND THE

AMENDMENTS MADE BY THE DIPLOMATIC CONFERENCE

OF 27 JUNE 1997

CONSOLIDATED TEXT OF THE ENACTING TERMS

OF THE CONVENTION

Article 1

1. In order to achieve harmonisation and integration with the aim of establishing

a uniform European air traffic management system, the Contracting Parties agree to

strengthen their co-operation and to develop their joint activities in the field of air

navigation, making due allowance for defence needs and providing maximum freedom

for all airspace users consistent with the required level of safety in the provision of

cost-effective air traffic services, and taking into account the need to minimise, where

this is feasible, inter alia, in operational, technical and economic terms, any adverse

environmental impact.

The pursuit of these objectives shall not prejudice the principle that every State

has complete and exclusive sovereignty over the airspace above its territory nor the

capacity of every State to exercise its prerogatives with regard to security and defence

in its national airspace.

To this end, they agree

(a) to determine a European policy in the air traffic management field,

involving the definition of strategies and programmes whose objective is to develop

the capacity needed to meet the requirements of all civil and military users in a

cost-effective manner while maintaining the required level of safety;

(b) to commit themselves to the establishment of specific targets regarding

the efficiency and effectiveness of air traffic management operations in the Flight

Information Regions listed in Annex II to this Convention in which States, pursuant

to the relevant provisions of the Convention on International Civil Aviation, have

agreed to provide air traffic services without prejudice to the principles of free

movement in airspace not subject to the sovereignty of the States which result

from conventions, international agreements, and the rules or principles of

customary public international law;

(c) to introduce an air traffic management performance review and target

setting system;

(d) to implement a common convergence and implementation plan for air

navigation services and facilities in Europe;

(e)

to adopt and apply common standards and specifications;

(f)

to harmonise air traffic services regulations;

(g) to develop the available capacity to meet the air traffic demand and to

ensure its most effective utilisation through the joint establishment, operation and

development of a common European air traffic flow management system, in the

framework of the introduction of a uniform European air traffic management

system;

(h) to encourage common procurement of air traffic systems and facilities;

(i) to implement a common policy for the establishment and calculation of

charges levied on users of en route air navigation facilities and services, hereinafter

called “route charges”;

(j) to implement a mechanism, separate from service provision, for the

multilateral development and harmonisation of a safety regulatory regime in the

field of air traffic management within a total aviation safety system approach;

(k) to participate in the design, the implementation and the monitoring of a

global navigation satellite system;

(l) to identify new possibilities for common actions in the field of design,

implementation, monitoring or operation of systems and services in air navigation;

(m) in the context of a “gate-to-gate” concept, to develop an overall policy

and an appropriate, efficient and effective process for the strategic design and

planning of routes and airspace.

2. For this purpose they hereby establish a “European Organisation for the Safety

of Air Navigation (EUROCONTROL)”, hereinafter called “the Organisation”, which

shall act in co-operation with the national civil and military authorities and the user

organisations. The Organisation shall comprise three organs

(a) a General Assembly, which shall constitute the organ responsible for

the formulation and approval of the Organisation’s general policy, including

(i) the common policy for route charges and the Organisation’s other

charges activities;

(ii) the performance review and assessment functions of the

Organisation;

A

(iii) the setting of objectives for the Organisation, including those of

standardisation, planning, performance and safety regulation;

(iv) the technical and financial selection of major framework

programmes for co-operation;

(v) external relations with States and organisations and applications

for accession to this Convention;

(b) a Council, which shall constitute the organ tasked with implementing

the General Assembly’s decisions and, subject to the powers conferred upon the

latter, ruling on all measures which are addressed to and binding on the Contracting

Parties, and supervising the Agency’s work;

(c) an Agency, whose Statute is contained in Annex I to this Convention,

which shall be the organ entrusted to undertake the Organisation’s tasks, in

accordance with the provisions of the following articles of this Convention and

the tasks assigned to it by the General Assembly or the Council, to initiate relevant

proposals and to deploy the technical, financial and staff resources to achieve the

objectives laid down.

3. The headquarters of the Organisation shall be in Brussels.

Article 2

1. The Organisation shall undertake the following tasks

(a) to develop and endorse detailed plans for the harmonisation and

integration of the air traffic services and systems of the Contracting Parties, in

particular the ground and airborne air navigation systems, with a view to the

establishment of a uniform European air traffic management system;

(b) to coordinate the implementation plans of the Contracting Parties so

as to secure convergence towards a uniform European air traffic management

system;

(c) to examine and coordinate on behalf of the Contracting Parties matters

in the field of air navigation studied by the International Civil Aviation

Organization (ICAO) and other international organisations concerned with civil

aviation and to coordinate and submit amendments or proposals to these bodies;

(d) to define, design, develop, validate and organise the implementation

of a uniform European air traffic management system;

(e) to develop and operate a common European air traffic flow management

system at a common international centre in the framework of (d) above;

(f) to develop, adopt, and keep under review common standards,

specifications and practices for air traffic management systems and services;

(g) to develop and endorse procedures towards a strategy for the common

procurement of air traffic systems and facilities;

(h) to coordinate the Contracting Parties’ research and development

programmes relating to new techniques in the field of air navigation, to collect

and distribute their results and to promote and conduct common studies, tests and

applied research as well as technical developments in this field;

(i) establish an independent performance review system that will address

all aspects of air traffic management, including policy and planning, safety

management at and around airports and in the airspace, as well as financial and

economic aspects of services rendered, and set targets that will address all these

aspects;

(j) to study and promote measures for improving cost-effectiveness and

efficiency in the field of air navigation;

(k) to develop and endorse common criteria, procedures and methods to

ensure the highest efficiency and quality of air traffic management systems and

air traffic services;

(l) to develop proposals for the harmonisation of European air traffic services

regulations;

(m) to support the improvement of efficiency and flexibility in the use of

airspace between civil and military users;

(n) to develop and endorse coordinated or common policies to improve air

traffic management at and around airports;

(o) to develop and endorse common criteria for the selection, and common

policies for the training, licensing, and proficiency checking of air traffic services

staff;

(p) to develop, establish and operate the future common European system

elements entrusted to it by the Contracting Parties;

(q) to establish, bill and collect the route charges on behalf of the Contracting

Parties participating in the common route charges system as provided for in Annex

A

(r) to establish and implement a mechanism for the multilateral development

and harmonisation of safety regulation in the air traffic management field;

(s) to perform any other task relating to the principles and objectives of

this Convention.

2. At the request of one or more Contracting Parties and on the basis of a special

agreement or agreements between the Organisation and the Contracting Parties

concerned, the Organisation may

(a) assist such Contracting Parties in the planning, specification and setting

up of air traffic systems and services;

(b) provide and operate, wholly or in part, air traffic facilities and services

on behalf of such Contracting Parties;

(c) assist such Contracting Parties in the establishment, billing and collection

of charges which are levied by them on users of air navigation services and which

are not covered by Annex IV to this Convention.

3. The Organisation may

(a) conclude special agreements with non-Contracting Parties interested in

participating in the performance of the tasks provided for in Article 2.1;

(b) at the request of non-Contracting Parties or other international

organisations, perform on their behalf any other tasks pursuant to this Article, on

the basis of special agreements between the Organisation and the Parties concerned.

4. The Organisation shall, as far as is practicable, ensure that its service provision

functions, in particular those provided for in Articles 2.1 (e), 2.1 (g), 2.1 (p), 2.1 (q), 2.2

and 2.3 (b), are exercised independently of its regulatory functions.

5. In order to facilitate the execution of its tasks, the Organisation may, by

decision of the General Assembly, create undertakings governed by specific articles of

association governed either by public international law or by the national law of a

Contracting Party, or acquire majority shareholdings in such undertakings.

Article 3

1. This Convention shall apply to en route air navigation services and related

approach and aerodrome services for air traffic in the Flight Information Regions listed

in Annex II.

2. (a) Any amendment which a Contracting Party wishes to make to the list of

its Flight Information Regions in Annex II shall be decided upon by the General

Assembly by unanimity of the votes cast if it would result in a change in the overall

limits of the airspace covered by this Convention.

(b) Any amendment which does not result in such a change shall

nevertheless be notified to the Organisation by the Contracting Party concerned.

3. For the purposes of this Convention the expression “air traffic” shall comprise

civil aircraft and those military, customs and police aircraft which conform to the

procedures of the International Civil Aviation Organization.

On the basis of a special agreement, as provided for in Article 2.2(b), a Contracting

Party may request that the expression “air traffic” shall apply to other air traffic operating

within its territory.

Article 4

The Organisation shall have legal personality. In the territory of the Contracting

Parties it shall have the fullest legal capacity to which corporate bodies are entitled

under national law; it shall inter alia have the right to acquire or transfer movable or

immovable property and to go to law. Except as otherwise provided in this Convention

or the Statute at Annex I, it shall be represented by the Agency, which shall act in its

name. The Agency shall administer the property of the Organisation.

Article 5

1. The General Assembly shall be composed of representatives of the Contracting

Parties at Ministerial level. Each Contracting Party may appoint several delegates in

order, in particular, to allow the interests of both civil aviation and national defence to

be represented, but shall have only a single voting right.

2. The Council shall be composed of representatives of the Contracting Parties

at the level of the Directors General for Civil Aviation. Each Contracting Party may

appoint several delegates in order, in particular, to allow the interests of both civil

aviation and national defence to be represented, but shall have only a single voting

right.

3. On matters relating to the common route charges system, the General

Assembly and the Council shall be made up of representatives of the Contracting Parties

participating in the common route charges system under the conditions stipulated in

Annex IV.

4. The representatives of international organisations which can contribute to

the work of the Organisation shall, where appropriate, be invited by the General

Assembly, or the Council, to participate as observers, in bodies of the Organisation.

A

Article 6

1. The General Assembly shall take decisions with regard to the Contracting

Parties, the Council and the Agency, in particular in the cases referred to in Article

In addition, the General Assembly shall

(a) appoint the Director General of the Agency, on the Council’s

recommendation;

(b) authorise recourse on behalf of the Organisation to the Permanent Court

of Arbitration of The Hague in the cases referred to in Article 34;

(c) establish the principles applied for the operation of the common

European air traffic flow management system provided for in Article 2.1(e);

(d) approve amendments to Annex I in conformity with the voting conditions

provided for in Article 8.1;

(e) approve amendments to Annexes II and IV in conformity with the voting

conditions provided for in Article 8.3;

(f)

periodically review the tasks of the Organisation.

2. To formulate the common policy for route charges, the General Assembly

shall, inter alia

(a) establish the principles governing the assessment of the costs chargeable

by the Contracting Parties and the Organisation to the users in respect of the en-

route air navigation facilities and services provided to them;

(b) determine the formula to be applied in calculating route charges;

(c) determine the principles governing exemption from the route charges

and may further decide that for certain categories of flights thus exempted from

the payment of route charges governed by Annex IV, the costs incurred in respect

of en-route air navigation facilities and services may be recovered directly by the

Contracting Parties;

(d) approve reports by the Council relating to route charges.

3. The General Assembly may

(a) refer to the Council for examination any matter falling within its

competence;

(b) delegate to the Council, where necessary, the power to take decisions

in the matters falling within its general competence, referred to in Article 1.2(a);

(c)

establish other subsidiary bodies as it may consider to be necessary.

Article 7

1. The Council, pursuant to the powers conferred on it by this Convention, may

take decisions with regard to the Contracting Parties, in the tasks referred to in Article

2.1.

2. The Council, pursuant to its supervisory powers as conferred on it in regard

to the Agency by this Convention

(a) shall approve, after having consulted representative organisations of

airspace users recognised by the Council, the Agency’s five-year and annual work

programmes submitted to it by the Agency for the accomplishment of the tasks

referred to in Article 2, together with the five-year financial plan and the budget,

including the financial obligations, the Agency’s activity report and the reports

submitted pursuant to Articles 2.2 (c), 10.3 and 11.1 of the Statute of the Agency;

(b) shall approve the principles governing the general structure of the

Agency;

(c) shall supervise the activities of the Agency in the field of air navigation

charges;

(d) shall determine, after having consulted the representative organisations

of airspace users and airports recognised by the Council, the general conditions

for the operation of the common European air traffic flow management system

provided for in Article 2.1 (e), taking due account of the prerogatives exercised

by the States in regard to management of their airspace. These general conditions

shall specify, inter alia, the rules applicable as well as the procedures for recording

non-compliance with these rules;

(e) shall issue directives to the Agency on the basis of regular reports from

the latter or whenever it deems it to be necessary for the accomplishment of the

tasks assigned to the Agency, and shall approve arrangements for co-operation

between the Agency and national organisations concerned to enable the Agency

to initiate the appropriate proposals;

(f) shall appoint, on a proposal by the Director General, the firm of

consultant auditors to assist the Audit Board in the examination of the accounts of

all receipts and expenditure;

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(g) may require that the Agency’s services be the subject of administrative

and technical inspections;

(h) shall give the Director General discharge in respect of his/her

administration of the budget;

(i) shall approve the appointment by the Director General of the Directors

of the Agency;

(j) shall approve the Statute of the Director General, the Staff Regulations,

the Financial Regulations and the Contract Regulations;

(k) may authorise the opening by the Agency of negotiations related to the

special agreements referred to in Article 2, adopt the agreements negotiated before

submitting them for approval by the General Assembly or conclude such

agreements where the Council has been delegated powers pursuant to the provisions

of Article 13.3;

(l)

shall approve a Regulation on data protection;

(m) in the performance of the tasks provided for in Article 2.1(f), shall

determine the rules and procedures applicable to standards, specifications and

practices for air traffic management systems and services.

3. The Council shall establish a Performance Review Commission and a Safety

Regulation Commission. These Commissions will initiate relevant proposals to the

Council and receive administrative support and assistance from the Agency services

which have the necessary degree of independence to exercise their functions.

4. The Council shall establish a Civil/Military Interface Standing Committee.

5. The Council shall establish an Audit Board to which it may delegate duties

and, under specific terms of reference, delegate powers.

6. The Council may be assisted by other committees in other fields of activity

of the Organisation.

7. The Council may delegate duties and, under specific terms of reference,

delegate powers to the Civil/Military Interface Standing Committee and any Committee

created after the entry into force of this Convention. Such delegations of duties or

powers shall not prevent the Council from being able to raise matters at any time as

part of its task of general supervision.

Article 11

1. The weighting referred to in Article 8 shall be determined according to the

following table

The weighting referred to in Article 8 shall be determined according to the

following table

Annual Contribution of a Contracting Party as a percentage of the total annual

contributions of all the Contracting Parties

Number of votes

Less than 1% ..............................................................................

From 1 to less than 2% ...............................................................

From 2 to less than 3% ...............................................................

From 3 to less than 4 1 / 2 % ............................................................

From 4 1 / 2 to less than 6% ............................................................

From 6 to less than 7 1 / 2 % ............................................................

From 7 1 / 2 to less than 9% ............................................................

From 9 to less than 11% .............................................................

From 11 to less than 13% ...........................................................

From 13 to less than 15% ...........................................................

From 15 to less than 18% ...........................................................

From 18 to less than 21% ...........................................................

From 21 to less than 24% ...........................................................

From 24 to less than 27% ...........................................................

From 27 to less than 30% ...........................................................

30% ............................................................................................

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2. The number of votes shall be initially established with effect from the date of

entry into force of the Protocol opened for signature at Brussels in 1997 by reference to

the above table and in accordance with the rule in Article 10 above for determining the

annual contributions of the Contracting Parties to the Organisation’s budget.

3. In the event of the accession of a State, the numbers of votes of the Contracting

Parties shall be re-established in accordance with the same procedure.

4. The numbers of votes shall be re-established each year in accordance with

the foregoing provisions.

Article 12

The General Assembly and the Council shall establish their rules of procedure,

including rules governing the election of a President and Vice-President, and the rules

of application of the voting procedures and the quorum.

Article 13

1. The Organisation shall maintain with the appropriate States and other

international organisations the necessary relations for the realisation of its aims.

2. The General Assembly shall, without prejudice to the provisions of Article

7.2(k), of paragraph 3 of this article and of Article 15, be alone empowered to conclude

on behalf of the Organisation the special agreements which are necessary for the

performance of the tasks provided for in Article 2.

3. The General Assembly may, on a proposal from the Council, delegate to the

latter the decision to conclude the special agreements which are necessary for the

performance of the tasks provided for in Article 2.

Article 14

The special agreements referred to in Article 2 shall stipulate the respective tasks,

rights and obligations of the Parties to the agreements, together with the financial

arrangements, and shall establish the measures to be taken. Such agreements may be

negotiated by the Agency in accordance with the provisions of Article 7.2(k).

Article 15

Within the scope of the directives given by the Council, those relations which are

essential for the co-ordination of air traffic and for the operation of the services of the

Agency may be established by the Agency with the appropriate technical services,

public or private, of the Contracting Parties, of non-Contracting Parties or of international

organisations. For that purpose, contracts of a purely administrative, technical or

commercial nature, in so far as they are required for the operation of the Agency, may

be entered into by the Agency, in the name of the Organisation, on condition that the

Agency so informs the Council.

Article 16

1. The character of public interest shall, where necessary, be recognised, in

accordance with national law and with the consequences which result from the

provisions of that law relating to expropriation in the public interest, as regards the

acquisition of immovable property necessary for the siting of the Organisation’s

installations, subject to the agreement of the Government concerned. The procedure of

expropriation for reasons of public interest may be set in motion by the competent

authorities of the State concerned, in accordance with its national law, for the purpose

of acquiring such property failing amicable agreement.

2. In the territory of the Contracting Parties where the procedure referred to in

the preceding paragraph is not in existence, the Organisation may have the benefit of

those procedures for compulsory purchase which can be used for the benefit of civil

aviation and telecommunications.

3. The Contracting Parties recognise the right of the Organisation to benefit, in

respect of any installations and services established on its behalf in their respective

territories, from the application of national law as to those restrictions on the rights of

owners of immovable property which may exist in the public interest for the benefit of

national services for the same purpose and in particular as to easements in the public

interest.

4. The Organisation shall bear the expenses consequent upon the application of

the provisions of this Article, including the compensation payable in accordance with

the law of the State in the territory of which the property is situated.

Article 17

In the performance of the tasks provided for in Article 2.2(b), the Agency shall

apply the regulations in force in the territories of the Contracting Parties and in the

airspace in respect of which the provision of air traffic services is entrusted to them

under international agreements to which they are Parties.

Article 18

In the performance of the tasks provided for in Article 2.2(b), the Agency shall,

within the limits of the powers conferred on the air traffic services, give all the necessary

instructions to aircraft commanders. The aircraft commanders shall be bound to comply

with those instructions, except in the cases of force majeure provided for in the

regulations referred to in the preceding article.

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Article 19

1. In the performance of the tasks provided for in Article 2.1(e), the Organisation

shall determine, in accordance with the general conditions provided for in Article 7.2(d),

the necessary regulatory measures, and shall communicate them to aircraft operators

and to the appropriate air traffic services. The Contracting Parties shall ensure that

aircraft operators, aircraft commanders and the appropriate air traffic services comply

therewith, unless prevented by compelling reasons of safety.

2. Compliance by a Contracting Party’s air traffic services with the general

conditions and the regulatory measures referred to in paragraph 1 above shall be the

sole responsibility of the said Contracting Party.

3. In the event of non-compliance by an aircraft operator or an aircraft

commander with the general conditions or the regulatory measures referred to in

paragraph 1 above, proceedings may be instituted against the offender at the

Organisation’s request

(a) by the Contracting Party where non-compliance was recorded, in its

own territory;

(b) by the Organisation in accordance with the grounds of jurisdiction set

out in Article 35, if the Contracting Party, where the proceedings are to be instituted,

agrees.

4. The Contracting Parties shall incorporate into their national legislation

provisions which ensure the observance of the general conditions provided for in Article

7.2(d).

Article 20

In the performance of the tasks provided for in Article 2.1(e) and, where

appropriate, Article 2.2(b), infringements of the air navigation regulations committed

in the airspace in which the Agency performs these tasks shall be recorded in reports

by officers specifically authorised by the Agency for that purpose, without prejudice to

the right under national law of officers of the Contracting Parties to report infringements

of the same nature. The reports referred to above shall have the same effect in national

courts as those drawn up by national officers qualified to report infringements of the

same nature.

Article 21

1. The circulation of publications and other information material sent by or to

the Organisation in connection with its official activities shall not be restricted in any

way.

2. For its official communications and the transfer of all its documents, the

Organisation shall enjoy treatment no less favourable than that accorded by each

Contracting Party to comparable international organisations.

Article 22

1. The Organisation shall be exonerated in the territories of the Contracting

Parties from all duties, taxes and charges in respect of its creation, dissolution or

liquidation.

2. It shall be exonerated from any duties, taxes and charges entailed by the

acquisition of the immovable property required for the accomplishment of its task.

3. It shall be exonerated from all direct taxes applicable to it, as well as its

property, assets and income.

4. It shall be exonerated from any indirect fiscal charges consequential on the

issue of loans and incident upon the Organisation.

5. It shall be exonerated from any taxation of an exceptional or discriminating

nature.

6. The exonerations provided for in this article shall not apply to taxes and

charges collected as payment for general utilities.

Article 23

1. The Organisation shall be exonerated from all customs duties and taxes or

charges of equivalent effect, other than charges in respect of services rendered, and

shall be exempt from any import or export prohibition or restriction in respect of

materials, equipment, supplies and other articles imported for the official use of the

Organisation and destined for the buildings and installations of the Organisation or for

its functioning.

2. The goods so imported may not be sold, loaned or transferred, either without

payment or against payment, in the territory of the Contracting Party into which they

have been introduced, except under the conditions fixed by the Government of the

Contracting Party concerned.

3. Any control measures deemed to be expedient may be taken to ensure that

the materials, equipment, supplies and other articles referred to in paragraph 1 and

imported for consignment to the Organisation have been effectively delivered to that

Organisation and are effectively used for its official buildings and installations or for

its functioning.

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4. The Organisation shall be exonerated from all customs duties and exempt

from any import or export prohibition or restriction in respect of the publications falling

within the scope of Article 13 of the Statute annexed hereto.

Article 24

1. The Organisation may hold any currency and have accounts in any currency

in so far as is necessary for the execution of the transactions required for its purpose.

2. The Contracting Parties undertake to give the Organisation the necessary

authorisations for all the transfers of funds, in accordance with the conditions prescribed

under national regulations and international agreements as applicable, entailed by the

establishment and activity of the Organisation, including the issue and service of loans

when the issue of those loans has been authorised by the Government of the Contracting

Party concerned.

Article 25

1. The Agency may call upon the services of qualified persons who are nationals

of the Contracting Parties.

2. The staff of the Organisation and members of their families forming part of

their households, shall enjoy the exemption from measures restricting immigration

and governing aliens’ registration generally accorded to staff members of comparable

international organisations.

3. (a) The Contracting Parties, in time of international crisis, shall accord to

the staff of the Organisation, and the members of their families forming part of their

households, the same repatriation facilities as the staff of other international

organisations.

(b) The provisions of (a) above shall not affect the staff’s obligations to

the Organisation.

4. No exception may be made to the provisions of paragraphs 1 and 2 of this

article except for reasons of public policy, public safety or public health.

5. The staff of the Organisation

(a) shall be granted exemption from customs duties and charges, other than

those in respect of services rendered, in the case of the importation of their personal

effects, movable property and other household effects which are not new, which

they bring from abroad on first taking up residence in the territory in question,

and in the case of the re-exportation of those same effects and movable property,

when they relinquish their duties;

(b) may, on taking up their duties in the territory of any one of the

Contracting Parties, import their personal motor car temporarily with exemption

from duty, and subsequently, but not later than on termination of their period of

service, re-export that vehicle with exemption from duty, subject, however, in

either event, to any conditions deemed to be necessary in each individual case by

the Government of the Contracting Party concerned;

(c)

shall enjoy inviolability for all their official papers and documents.

6. The Contracting Parties shall not be obliged to grant to their own nationals

the facilities provided for in paragraph 5 (a) and (b) above.

7. In addition to the privileges, exemptions and facilities granted to the staff of

the Organisation, the Director General of the Agency shall enjoy immunity from

jurisdiction in respect of acts, including words spoken and written, done by him/her in

the exercise of his/her functions; this immunity shall not apply in the case of a motor

traffic offence or in the case of damage caused by a motor vehicle belonging to or

driven by him/her.

8. The Governments concerned shall take all the necessary measures to ensure

the unrestricted transfer of net salaries.

Article 26

Representatives of the Contracting Parties shall, while exercising their functions

and in the course of their journeys to and from the place of meeting, enjoy inviolability

for all their official papers and documents.

Article 27

By reason of its own social security scheme, the Organisation, the Director General

and personnel of the Organisation, shall be exempt from all compulsory contributions

to national social security bodies, without prejudice to arrangements between the

Organisation and Contracting Parties existing at the entry into force of the Protocol

opened for signature at Brussels in 1997.

Article 28

1. The contractual liability of the Organisation shall be governed by the law

applicable to the contract concerned.

2. With regard to non-contractual liability, the Organisation shall make reparation

for damage caused by the negligence of its organs, or of its servants in the scope of

their employment, in so far as that damage can be attributed to them. The foregoing

provision shall not preclude the right to other compensation under the national law of

the Contracting Parties.

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Article 29

1. (a) The installations of the Organisation shall be inviolable. The property

and assets of the Organisation shall be exempt from any measure of requisition,

expropriation or confiscation.

(b) The archives of the Organisation and all official papers and documents

belonging to it shall be inviolable, wherever located.

2. The property and assets of the Organisation may not be seized, nor may

execution be levied upon them, except by a judicial decision. Such judicial decision

shall not be made unless the Organisation has been given reasonable notice of the

proceedings in question and has had an adequate opportunity to oppose the making of

the decision. The installations of the Organisation shall not, however, be seized nor

shall execution be levied upon them.

3. Nevertheless, in order to enable judicial inquiries to be carried out and to

ensure the execution of judicial decisions in their respective territories, the competent

authorities of the State in which the Organisation has its headquarters and of other

States in which installations and archives of the Organisation are located shall, after

having informed the Director General of the Agency, have access to such installations

and archives.

Article 30

1. The Organisation shall collaborate at all times with the competent authorities

of the Contracting Parties in order to facilitate the good administration of justice, to

ensure the observance of police regulations and to prevent any abuse to which the

privileges, immunities, exemptions or facilities specified in this Convention could give

rise.

2. The Organisation shall facilitate, as far as possible, the execution of public

works inside or in the vicinity of any immovable property allocated for its use in the

territories of the Contracting Parties.

Article 31

In the performance of the tasks provided for in Article 2.1(e) and, where

appropriate, Article 2.2(b), international agreements and national regulations relating

to the admission to, flight over and security of, the territory of the Contracting Parties

concerned shall be binding on the Agency, which shall take all necessary measures to

ensure the application of such agreements and regulations.

Article 32

In the performance of the tasks provided for in Article 2.1(e) and, where

appropriate, Article 2.2(b), the Agency shall give to those Contracting Parties which so

request all necessary information relating to the aircraft of which it has cognisance in

the exercise of its functions related to the airspace of the Contracting Party concerned,

in order that the Contracting Parties concerned may be able to verify that international

agreements and national regulations are being applied.

Article 33

The Contracting Parties recognise that it is necessary for the Agency to achieve

financial equilibrium and undertake to make available to it the appropriate financial

resources, within the limits and conditions defined in the present Convention and the

Statute of the Agency at Annex I.

Article 34

1. Any dispute arising between two or more Contracting Parties or between

one or more Contracting Parties and the Organisation relating to the interpretation,

application or performance of this Convention, including its existence, validity or

termination, which cannot be settled within a period of six months by direct negotiation

or by any other means, shall be referred to arbitration of the Permanent Court of

Arbitration in The Hague in accordance with the Optional Rules for Arbitration of the

said Court.

2. The number of arbitrators shall be three.

3. The place of arbitration shall be The Hague. The International Bureau of the

Permanent Court of Arbitration shall serve as Registrar, and shall provide such

administrative services as the Permanent Court of Arbitration shall direct.

4. The decisions of the Permanent Court of Arbitration shall be binding on the

Parties to the dispute.

Article 35

1. Without prejudice to the application of the provisions of Annex IV for the

enforced recovery of route charges, the courts of the Contracting Parties shall have

sole jurisdiction to hear disputes arising between the Organisation, represented by the

Director General, and any natural person or corporate body, in connection with the

application of acts of the Organisation.

2. Without prejudice to the application of the provisions of Annex IV for the

enforced recovery of route charges, proceedings shall be instituted in the Contracting

Party

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(a)

where the defendant has his/her residence or registered office;

(b) where the defendant has a place of business, if neither his/her residence

nor his/her registered office is situated in the territory of a Contracting Party;

(c) in the absence of the grounds of jurisdiction set out in sub-paragraphs

(a) and (b) above, where the defendant has assets;

(d) in the absence of the grounds of jurisdiction set out in sub-paragraphs

(a) to (c) above, where EUROCONTROL has its headquarters.

Article 36

1. The amendments made in conformity with the conditions prescribed in this

Convention, to the Statute of the Agency set out in Annex I, and to Articles 16 et seq. of

the provisions relating to the common route charges system set out in Annex IV, shall

be valid and have effect in the territory of the Contracting Parties.

2. The tax provisions set out in Annex III and Articles 1 to 15 of the provisions

relating to the common route charges system set out in Annex IV shall not be subject to

amendment by the General Assembly.

3. Each Contracting Party shall be bound by Annex IV for a period of five years

from the date on which this Convention enters into force. The five-year period shall be

extended automatically for further five-year periods. A Contracting Party which has

notified the General Assembly in writing, not less than two years before the expiry of

the five-year period, that it does not consent to the extension of the period, shall cease

to be bound by Annex IV at the expiry of this five-year period.

4. The rights and obligations of the withdrawing Contracting Party may be

determined if necessary in a special agreement concluded between it and the

Organisation.

This agreement will require to be approved by unanimity of the votes cast by the

General Assembly, with the withdrawing Contracting Party taking no part in the vote.

5. The Contracting Party which is no longer bound by Annex IV may at any

time request the General Assembly in writing to be bound once more by Annex IV. The

Contracting Party in question shall again be bound by Annex IV six months after the

day on which the General Assembly accepts the said request by unanimity of the votes

cast by the Contracting Parties participating in the common system. The Contracting

Party concerned shall be bound by Annex IV for a period of five years from the day on

which it became bound. This period shall be extended automatically subject to the

same conditions as those set out in paragraph 3 above.

Article 37

The Contracting Parties undertake to ensure to the Agency the application of

current statutory provisions designed to safeguard the continuity of those general utilities

required for the proper running of operational services.

Article 38

1. The Convention, as amended by the Protocol of 12 February 1981 and

subsequently by the Protocol opened for signature at Brussels in 1997, shall be extended

for an indefinite period.

2. Once the Convention as thus extended has been in force for twenty years,

any Contracting Party may terminate application, as far as it is concerned, of the

Convention by giving written notification to the Government of the Kingdom of

Belgium, which shall inform the Governments of the other Contracting States of such

notification.

The decision to withdraw shall take effect at the end of the year following the

year in which notification of withdrawal is given, provided that the special agreement

provided for in paragraph 3 below has been concluded by that date. Failing this, the

decision to withdraw shall take effect on the date laid down in the said special agreement.

3. The rights and obligations, in particular of a financial nature, of the

withdrawing Contracting Party shall be determined in a special agreement concluded

between it and the Organisation.

This agreement shall require to be approved by unanimity of the votes cast by the

General Assembly with the withdrawing Contracting Party taking no part in the vote.

4. The Organisation may be dissolved if the number of Contracting Parties is

reduced to less than 50% of the Parties signatories to the aforesaid 1997 Protocol,

subject to a decision of the General Assembly carried by unanimity of the votes cast.

5. If, in application of the above, the Organisation is dissolved, its legal

personality and capacity, within the meaning of Article 4, shall continue to exist for the

purposes of winding up the Organisation.

Article 39

1. The accession to the Convention, as amended by the Protocol of 12 February

1981 and by the Protocol opened for signature at Brussels in 1997, of any State not

signatory to the latter Protocol shall be subject to the agreement of the General Assembly

expressed by unanimity of the votes cast.

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2. The President of the General Assembly shall notify the non-signatory State

of the decision to accept the accession.

3. The instrument of accession shall be deposited with the Government of the

Kingdom of Belgium which shall notify the Governments of the other signatory and

acceding States.

4. Accession shall take effect from the first day of the second month following

the deposit of the instrument of accession.

Article 40

1. The accession to the Convention, as amended by the Protocol of 12 February

1981 and by the Protocol opened for signature at Brussels in 1997, shall be open to

regional economic integration organisations on terms and conditions to be agreed

between the Contracting Parties and those organisations, of which one or more signatory

States are members, these terms and conditions to be contained in an additional Protocol

to the Convention.

2. The instrument of accession shall be deposited with the Government of the

Kingdom of Belgium which shall notify the other Parties.

3. Accession of a regional economic integration organisation shall take effect

from the first day of the second month following the deposit of the instrument of

accession, provided that the additional Protocol referred to in paragraph 1 above has

entered into force.

The present consolidated text of the enacting terms of the Convention and its

Annexes are drawn up in the German, English, Bulgarian, Croatian, Danish, Spanish,

French, Greek, Hungarian, Italian, Dutch, Norwegian, Portuguese, Romanian, Slovak,

Slovenian, Swedish, Czech and Turkish languages. In accordance with the final

provision of the EUROCONTROL International Convention relating to Co-operation

for the Safety of Air Navigation of 13 December 1960, the final provision of the Protocol

of 12 February 1981 amending the aforesaid Convention as well as the final provision

of the Protocol opened for signature at Brussels in 1997 consolidating the aforesaid

Convention, as variously amended, the text in the French language shall prevail, in the

event of any inconsistency between the texts.

ANNEX I

STATUTE OF THE AGENCY

Article 1

1. The Agency shall be the organ responsible for achieving the objectives and

performing the tasks laid down in the Convention or set by the General Assembly or

by the Council and their subsidiary bodies. It shall initiate and submit proposals to the

relevant bodies related to the exercise of the various functions and the performance of

the various tasks of these bodies as well as to other tasks delegated to the Organisation.

It shall also provide support to the General Assembly and the Council and their subsidiary

bodies in the execution of their supervisory functions.

2. In the performance of its tasks, the Agency may be assisted, where necessary,

by civil and military experts appointed by States or by the service providers’

organisations concerned.

3. The Agency shall act as the focal point for intergovernmental co-operation

and coordination in the field of air navigation. It shall submit proposals and provide

the necessary support with a view to convergence towards, and implementation of, a

uniform European air traffic management system.

4. In particular, it shall provide regulatory, information, support and advisory

services to the Contracting Parties, and, on the basis of agreements pursuant to Article

2 of the Convention, to recognised international organisations and to non Contracting

States.

5. In particular, the Agency shall

(a) coordinate the implementation plans of the Contracting Parties to ensure

convergence towards a uniform European air traffic management system;

(b) examine matters in the field of air navigation under study by the

International Civil Aviation Organization (ICAO) and other international

organisations concerned with civil aviation and coordinate and submit amendments

to ICAO documents;

(c) develop proposals for detailed planning for the harmonisation and

integration of the air traffic services and systems, in particular the ground and

airborne components of air navigation systems of the Contracting Parties, with a

view to the establishment of a uniform European air traffic management system;

(d) develop proposals concerning the arrangements for the strategic

planning and design of routes and supporting airspace structures, in coordination

with civil and military experts appointed by States;

(e) develop proposals for the harmonisation of air traffic services

regulations, develop coordinated or common policies to improve air traffic

management at and around airports and support the improvement of efficiency

and flexibility in the use of airspace between civil and military users;

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(f) make proposals or play an advisory role in all aspects of policy and

planning. Its scope is not limited to en-route air traffic management but enlarged

to cater for an integrated “gate-to-gate” approach to air traffic management. It is

assisted by national experts in preparing these proposals;

(g) study and promote measures for improving cost-effectiveness and

efficiency in the field of air navigation;

(h) develop common criteria, procedures and methods to ensure the highest

efficiency and quality of air traffic management systems and air traffic services;

(i) coordinate Research, Development, Trials and Evaluation (RDTE)

programmes of national air traffic management organisations, including the

collection and dissemination of results;

(j) conduct common studies, tests and applied research as well as other

technical developments;

(k) define, design, develop, validate and organise the implementation of a

uniform system for European air traffic management under the aegis of the Council.

6. When the Agency provides air navigation services, its aim shall be

(a)

to prevent collisions between aircraft;

(b)

to ensure the orderly and expeditious flow of air traffic;

(c)

to provide advice and information conducive to the safe and efficient

conduct of flights;

(d)

to notify appropriate organisations regarding aircraft in need of search

and rescue aid, and assist such organisations as required.

7. The Agency shall work in close collaboration with the users’ organisations in

order to meet as efficiently and economically as possible the requirements of civil

aviation. It shall work in close collaboration with the military authorities to meet, under

the same conditions, the special requirements of military aviation.

8. For the accomplishment of its task, the Agency may, among other things,

construct and operate the buildings and installations it requires. However, it shall call

upon national technical services and make use of existing national installations whenever

this is technically and economically justified, in order to avoid any duplication.

Article 2

1. Subject to the powers conferred upon the General Assembly and the Council,

the Agency shall be managed by a Director General who shall enjoy wide management

independence with regard to the implementation, utilisation and efficient operation of

the technical, financial and personnel resources placed at his disposal. To this end, he/

she shall take the measures which he/she deems necessary in order to fulfil his/her

obligations.

2. Nevertheless, the Director General shall, with a view to submission for

approval by the Council in accordance with the provisions of the Convention

(a) elaborate annual and five-year work programmes stating the impact on

the trends in the costs and unit rates;

(b) draw up the five-year financial plan and the budget including the

financial obligations, and, as provided for in Annex IV, the unit rates and tariffs;

(c) present an annual report to the Council on the activities and financial

position of the Organisation;

(d) present the principles governing the general structure of the Agency,

the details of this structure being the sole responsibility of the Director General.

3. Furthermore, the Director General shall

(a) submit reports at regular intervals and seek instructions from the Council

whenever there is a risk of the objectives not being achieved, of the deadlines or

financial ceilings being exceeded, or in the event of major changes to programmes;

(b) negotiate the agreements referred to in Article 2 of the Convention,

within the framework of the directives issued by the Council.

Article 3

The Director General shall draw up and submit for the Council’s approval, the

Contract Regulations relating to

(a) the letting of contracts for the supply of goods and services to the

Organisation;

(b)

the supply of goods and services by the Organisation;

(c)

the sale or disposal of surplus assets.

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Article 4

The Director General shall draw up, and submit for the Council’s approval, the

Financial Regulations, which shall determine, in particular, the conditions governing

payment of national contributions, as well as the terms on which loans may be raised

by the Agency, and will ensure proper financial management, including internal audit.

Article 5

1. Without prejudice to the right of the Contracting Parties to submit proposals,

the Director General shall draw up and submit for the Council’s approval, the Agency’s

Staff Regulations

(a) they shall include, in particular, provisions relating to the nationality of

personnel, selection and recruitment procedures and principles, salary scales,

pensions, internal tax, disqualification for office, professional secrecy and

continuity of the service;

(b) the Agency’s staff shall be recruited from among nationals of the

Contracting Parties. Personnel from non-Contracting States may be employed

pursuant to the agreements provided for in Article 2.3 of the Convention, or in

exceptional cases by duly substantiated decision of the Director General.

2. The Administrative Tribunal of the International Labour Organisation shall

have sole jurisdiction in disputes between the Organisation and the personnel of the

Agency, to the exclusion of the jurisdiction of all other courts and tribunals, national or

international.

Article 6

1. The Director General shall be appointed for a term of office of five years by

the General Assembly by a majority of the votes cast, on condition that the said majority

attains three-quarters of the weighted votes cast according to the weighting provided

for in Article 11 of the Convention and at least three-quarters of the Contracting Parties

casting a vote. His/her term of office may be renewed once in the same manner. The

Statute of the Director General shall be approved by the Council.

2. The Director General shall represent the Organisation in legal proceedings

and for all civil purposes.

3. Furthermore, in conformity with the policies adopted by the General Assembly

and the Council, the Director General

(a) may appoint the staff and may terminate their services in accordance

with the Staff Regulations; appointments to Grade A1 and A2 functions for a term

of office of five years normally, renewable once, shall be subject to approval by

the Council;

(b) may borrow money in accordance with the Financial Regulations and

within the limits determined for that purpose by the Council;

(c) may enter into contracts in accordance with the Contract Regulations

referred to in Article 3 and within the limits determined for that purpose by the

Council;

(d) shall draw up and submit for the Council’s approval the Regulation on

data protection provided for in Article 7.2(l) of the Convention;

(e) shall draw up and submit for the Council’s approval the rules and

procedures applicable to standards, specifications and practices for air traffic

management systems and services.

4. The Director General may discharge the aforesaid functions without prior

reference to the Council, but he/she shall keep the Council informed of all measures

taken in the exercise of the aforesaid powers.

5. The Council shall determine the conditions under which a substitute for the

Director General may be appointed should he/she be unable to perform his/her duties.

Article 7

1. The Budget shall be balanced as between receipts and expenditure.

Estimates of all receipts and expenditure of the Agency shall be prepared for

each financial year.

2. The financial year shall begin on 1 January and end on 31 December.

3. The draft budget and draft five-year financial plan shall be submitted by the

Director General for the approval of the Council not later than 31 October of the

preceding year.

Article 8

1. The Organisation may borrow on the international financial markets in order

to obtain the necessary resources for the accomplishment of its tasks.

2. The Organisation may issue loans on the financial markets of a Contracting

Party in accordance with national law relating to internal loans, or, in the absence of

such law, with the agreement of the Contracting Party.

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3. The Financial Regulations shall determine the procedures by which the

Organisation raises and repays loans.

4. Each budget and each five-year financial plan shall specify the maximum

amount which the Organisation may borrow during the years covered by that budget

and the five-year financial plan.

5. In matters falling within the scope of this article, the Organisation shall act

in agreement with the competent authorities of the Contracting Parties or with their

banks of issue.

Article 9

The budget and the five-year financial plan may be revised during the financial

year, if circumstances so require, in accordance with the requirements prescribed for

their preparation and approval.

Article 10

1. The accounts of all the Agency budgetary receipts and expenditure, and the

Agency’s financial management, shall be audited annually by an Audit Board.

2. The Audit Board shall be assisted in its work by external consultant auditors.

The outside firm of consultant auditors shall be appointed by the Council for a three-

year term in accordance with Article 7.2(f) of the Convention.

3. The purpose of the audit carried out by the Audit Board, with the assistance

of external consultant auditors, shall be to establish the regular nature of receipts and

expenditure and to ensure sound financial management. The Audit Board shall submit

to the Council at the close of each financial year a report incorporating the Agency’s

comments. The Council may direct the Agency to take any appropriate measures

recommended in the audit report, in pursuance of Article 7.2(a) of the Convention.

4. The Audit Board shall ensure that an appropriate internal control mechanism

is put in place within the Agency, which is in line with sound corporate practice and

management.

5. The Audit Board may review other financial issues relating to the Agency in

line with its Terms of Reference.

Article 11

1. Administrative or technical inspections of the services of the Agency may be

carried out, if so required by the Council, acting either on its own initiative or at the

request of the Director General.

2. Such inspections shall be made by officers of the administrations of the

Contracting Parties, with external assistance if required. Each inspection committee

shall consist of at least two persons of different nationalities and should include as far

as possible a person who has taken part in a previous inspection.

Article 12

The Council shall determine the working languages of the Agency.

Article 13

The Agency shall issue the publications necessary for its operation.

Article 14

All draft amendments of the Statute shall be submitted for the approval of the

General Assembly pursuant to the provisions of Article 6.1(d) of the Convention.

ANNEX II

FLIGHT INFORMATION REGIONS

Federal Republic of Germany

Berlin Upper Flight Information Region

Hannover Upper Flight Information Region

Rhein Upper Flight Information Region

Bremen Flight Information Region

Düsseldorf Flight Information Region

Frankfurt Flight Information Region

München Flight Information Region

Berlin Flight Information Region

Republic of Austria

Wien Flight Information Region

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Kingdom of Belgium - Grand Duchy of Luxembourg

Bruxelles Upper Flight Information Region

Bruxelles Flight Information Region

Republic of Bulgaria

Sofia Flight Information Region

Varna Flight Information Region

Republic of Cyprus

Nicosia Flight Information Region

Republic of Croatia

Zagreb Flight Information Region

Kingdom of Denmark

København Flight Information Region

Kingdom of Spain

Madrid Upper Flight Information Region

Madrid Flight Information Region

Barcelona Upper Flight Information Region

Barcelona Flight Information Region

Islas Canarias Upper Flight Information Region

Islas Canarias Flight Information Region

French Republic - Principality of Monaco (*)

France Upper Flight Information Region

Paris Flight Information Region

Brest Flight Information Region

Bordeaux Flight Information Region

Marseille Flight Information Region (*)

Reims Flight Information Region

United Kingdom of Great Britain and Northern Ireland

Scottish Upper Flight Information Region

Scottish Flight Information Region

London Upper Flight Information Region

London Flight Information Region

Hellenic Republic

Athinai Upper Flight Information Region

Athinai Flight Information Region

Republic of Hungary

Budapest Flight Information Region

Ireland

Shannon Upper Flight Information Region

Shannon Flight Information Region

Shannon Oceanic Transition Area enclosed by the following co ordinates: 51°

North 15° West, 51° North 8° West, 48° 30' North 8° West, 49° North 15° West, 51°

North 15° West at and above FL55

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Italian Republic

Milano Upper Flight Information Region

Roma Upper Flight Information Region

Brindisi Upper Flight Information Region

Milano Flight Information Region

Roma Flight Information Region

Brindisi Flight Information Region

Republic of Malta

Malta Flight Information Region

Kingdom of Norway

Oslo Upper Flight Information Region

Stavanger Upper Flight Information Region

Trondheim Upper Flight Information Region

Bodø Upper Flight Information Region

Oslo Flight Information Region

Stavanger Flight Information Region

Trondheim Flight Information Region

Bodø Flight Information Region

Bodø Oceanic Flight Information Region

Kingdom of the Netherlands

Amsterdam Flight Information Region

Portuguese Republic

Lisboa Upper Flight Information Region

Lisboa Flight Information Region

Santa Maria Flight Information Region

Romania

Bucuresti Flight Information Region

Slovak Republic

Bratislava Flight Information Region

Republic of Slovenia

Ljubljana Flight Information Region

Kingdom of Sweden

Malmö Upper Flight Information Region

Stockholm Upper Flight Information Region

Sundsvall Upper Flight Information Region

Malmö Flight Information Region

Stockholm Flight Information Region

Sundsvall Flight Information Region

Swiss Confederation

Switzerland Upper Flight Information Region

Switzerland Flight Information Region

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Czech Republic

Praha Flight Information Region

Republic of Turkey

Ankara Flight Information Region

Istanbul Flight Information Region

ANNEX III

TAX PROVISIONS

Article 1

1. Without prejudice to the exonerations provided for in Articles 22 and 23 of

the Convention, when the Organisation in the exercise of its official activities makes

substantial acquisitions of property or employs services of substantial value in respect

of which indirect duties, taxes or charges (including such duties, taxes or charges levied

on importation other than those referred to in Article 23.1 of the Convention) have

been paid or are payable, the Governments of the Member States shall, whenever

possible, take appropriate action to offset the effect on the Organisation of such duties,

taxes or charges by means of an adjustment of the financial contributions to the

Organisation or by means of remission or of reimbursement to the Organisation of the

amount of the duties, taxes or charges.

2. With regard to payments by the Organisation to Member States in respect of

capital investments made by those States, in so far as the cost thereof is to be refunded

by the Organisation, the said States shall ensure that their statements of the amounts in

question submitted to the Organisation do not include duties, taxes or charges from

which the Organisation would have been exempt or which would be refunded to it or

which would be the subject of an adjustment of the financial contributions to the

Organisation if the Organisation had made those investments itself.

3. The provisions of this Article shall not apply in respect of duties, taxes or

charges collected as payment for public utility services.

Article 2

Property acquired by the Organisation to which Article 1.1 applies may not be

sold or otherwise disposed of except in accordance with conditions laid down by the

Governments of the States concerned.

Article 3

1. The Director General of the Agency and the Staff members of the Organisation

shall be subject to a tax for the benefit of the Organisation on salaries and emoluments

paid by the Organisation in accordance with the rules and conditions determined by

the General Assembly. Such salaries and emoluments shall be exempt from national

income tax.

The Member States may, however, take into account salaries and emoluments

exempted from national income tax when assessing the amount of the tax payable on

other income of those in receipt of the said salaries and emoluments.

2. Paragraph 1 shall not apply to pensions and annuities paid by the Organisation.

3. The names, titles, addresses as well as remunerations and where appropriate

pensions of employees and former employees to whom the provisions of paragraphs 1

and 2 of the present article are applicable shall be communicated periodically to the

Member States.

Article 4

For the purpose of this Annex, the Organisation shall act in concert with the

relevant authorities of the Member States concerned.

Article 5

1. This Annex shall replace the Additional Protocol to the Convention signed at

Brussels on 6 July 1970, as amended by the Protocol signed at Brussels on 21 November

1978, both in turn amended by Article XXXVIII of the Protocol signed at Brussels on

12 February 1981 amending the Convention.

2. Notwithstanding the provisions of paragraph 1 above, obligations under

Article 3 of the Additional Protocol of 6 July 1970 shall remain binding until the relevant

claims and commitments have been fully discharged.

ANNEX IV

PROVISIONS RELATING TO THE COMMON ROUTE CHARGES

SYSTEM

Article 1

The Contracting Parties agree to continue to administer a joint system for the

establishment, billing and collection of route charges as a single charge per flight and

to use for this purpose the services of EUROCONTROL.

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Article 2

The Organisation shall establish, bill and collect the route charges levied on users

of en route air navigation services on a proposal from the Contracting Parties

participating in the common route charges system.

Article 3

In matters relating to route charges, the Council shall be the body responsible for

determining the arrangements for giving effect to the General Assembly’s decisions in

route charge matters and supervising the Agency’s tasks in this field.

The Council shall inter alia

(a) prepare decisions for the General Assembly in route charge policy

matters;

(b) determine the unit of account in which route charges are expressed;

(c) determine, in accordance with decisions taken on the basis of Article

6.2 of the Convention, the conditions of application of the system, including the

conditions of payment, as well as the unit rates and tariffs and the period during

which they are to apply;

(d) approve reports relating to EUROCONTROL route charges activities;

(e) adopt the Financial Regulations applicable to the Route Charges System;

(f) approve the budgetary annexes relating to EUROCONTROL route

charges activities.

Article 4

The route charges indicated on the bill issued by the Organisation shall constitute

a single charge due in respect of each flight, which shall constitute a single claim by

EUROCONTROL, payable at its Headquarters.

Article 5

1. The charge shall be payable by the person who was the operator of the aircraft

at the time when the flight was performed. The charge shall attach as a lien to the

aircraft which incurred the charge, irrespective of in whose hands it may be, if the law

of the Contracting Party concerned so permits.

2. Where an ICAO designator or any other recognised designator is used in

identification of the flight, EUROCONTROL may deem the operator to be the aircraft

operating agency to whom the ICAO designator was allocated or was in the process of

allocation at the time of the flight or identified in the filed flight plan or identified by

use of that ICAO or other recognised designator in communication with air traffic

control or by any other means.

3. If the identity of the operator is not known, the owner of the aircraft shall be

regarded as the operator unless he/she proves which other person was the operator.

4. The operator and the owner of the aircraft shall be jointly and severally liable

to pay the charge, if the law of the Contracting Party concerned so permits.

Article 6

1. Where the amount due has not been paid, measures may be taken to enforce

recovery, including detention and sale of aircraft, if the law of the Contracting Party

where the aircraft has landed so permits.

2. Measures may also include, at EUROCONTROL’s request, the review by a

Contracting Party or any competent body of the administrative authorisation connected

with air transport or air traffic management issued to a person liable to pay the charge,

if the relevant legislation so provides.

Article 7

1. Proceedings for recovery of the amount due shall be instituted either by

EUROCONTROL or, at EUROCONTROL’s request, by a Contracting Party, or by

any body authorised for that purpose by a Contracting Party.

2. Recovery shall be effected by judicial or administrative procedure.

3. Each Contracting Party shall inform EUROCONTROL of the procedures

applied in that State and of the competent courts, tribunals or administrative authorities.

Article 8

Recovery proceedings shall be instituted in the territory of the Contracting Party

(a)

where the debtor has his/her residence or registered office;

(b) where the debtor has a place of business, if neither his/her residence

nor his/her registered office is situated in the territory of a Contracting Party;

(c) where, in the absence of the grounds of jurisdiction set out in sub-

paragraphs (a) and (b) above, the debtor has assets;

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(d) where EUROCONTROL has its headquarters, in the absence of the

grounds of jurisdiction set out in sub-paragraphs (a) to (c) above.

Article 9

1. The provisions of Articles 5, 6, 7 and 8 shall not prevent any Contracting

Party, or any body authorised by a Contracting Party, acting at the request of

EUROCONTROL, from proceeding with the recovery of the amount due by the

detention and sale of aircraft in accordance with the administrative or judicial procedure

of the relevant Contracting Party.

2. The power so to detain and sell shall extend to the equipment, spare parts,

fuel, stores and documents of the aircraft detained or sold.

3. The validity and effect of detention and sale shall be determined by the law

of the Contracting Party where the detention has been effected.

Article 10

EUROCONTROL shall have the capacity to institute proceedings before the

competent courts, tribunals and administrative authorities of States not parties to the

Convention.

Article 11

The following decisions taken in a Contracting Party shall be recognised and

enforced in the other Contracting Parties

(a)

final decisions of a court or tribunal;

(b) decisions of an administrative authority which have been subject to

review by a court or tribunal, but are no longer so, either because the court or

tribunal has dismissed the appeal by a final decision, or because the appeal has

been withdrawn, or because the time for lodging the appeal has expired.

Article 12

The decisions referred to in Article 11 shall not be recognised or enforced in the

following cases

(a) if the court, tribunal or administrative authority of the Contracting Party

of origin was not competent in accordance with Article 8;

(b) if the decision is contrary to public policy of the Contracting Party

addressed;

(c) if the debtor did not receive notice of the decision of the administrative

authority or of the institution of the proceedings in sufficient time to enable him/

her to defend the case or to appeal to a court or a tribunal;

(d) if proceedings relating to the same route charges have been previously

instituted and are still pending before a court, tribunal or an administrative authority

of the Contracting Party addressed;

(e) if the decision is incompatible with a decision relating to the same route

charges given in the Contracting Party addressed;

(f) if the court, tribunal or administrative authority of the Contracting Party

of origin, in order to arrive at its decision, has decided a preliminary question

concerning the status or legal capacity of natural persons, rights in property arising

out of a matrimonial relationship, wills or succession in a way that conflicts with

a rule of the private international law of the Contracting Party addressed, unless

the same result would have been obtained by the application of the rules of private

international law of that Contracting Party.

Article 13

The decisions referred to in Article 11, if enforceable in the Contracting Party of

origin, shall be enforced in accordance with the law of the Contracting Party addressed.

If necessary, an order of enforcement shall on request be issued by a court, tribunal or

an administrative authority of the Contracting Party addressed.

Article 14

1. The request shall be accompanied by

(a)

a certified copy of the decision;

(b) in the case of a decision of a court or tribunal rendered by default, the

original or a certified copy of a document establishing that notice of the institution

of the proceedings was duly served on the debtor;

(c) in the case of an administrative decision, a document establishing that

the requirements of Article 11 have been met;

(d) a document establishing that the decision is enforceable in the

Contracting Party of origin and that the debtor has received notice of the decision

in due time.

2. A duly certified translation of the documents shall be supplied if the court,

tribunal or administrative authority of the Contracting Party addressed so requires. No

legalisation or similar formality shall be required.

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Article 15

1. The request can be rejected only for one of the reasons set forth in Article 12.

In no case may the decision be reviewed on its merits in the Contracting Party addressed.

2. The procedure for the recognition and enforcement of the decision shall be

governed by the law of the Contracting Party addressed insofar as the Convention does

not otherwise provide.

Article 16

The amount collected by EUROCONTROL shall be paid to the Contracting Parties

in accordance with the decisions of the Council.

Article 17

Where the claim is recovered by a Contracting Party, the amount collected shall

be paid without delay to EUROCONTROL, which shall proceed in accordance with

Article 16. The recovery costs incurred by that Contracting Party shall be charged to

EUROCONTROL.

Article 18

The competent authorities of the Contracting Parties shall co-operate with

EUROCONTROL in the establishment and collection of route charges.

Article 19

If the Council decides unanimously to abandon recovery of a charge, the

Contracting Parties concerned may take whatever action they deem fit. In such a case,

the provisions of the Convention relating to recovery and to recognition and enforcement

of decisions shall cease to apply.”.

Part XIV

(1) This Part amends and shall be read and construed as

one with the Banking Act, hereinafter in this Part referred to as “the

371. principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for finance may by notice in the Gazette establish

and different dates may be so established for different provisions and

different purposes thereof.

In article 2 of the principal Act for the definition of “electronic

money” there shall be substituted the following

“ “electronic money” means the monetary value as represented

by a claim on the issuer issuing such money which is

(i)

stored on an electronic device; and

(ii) issued on receipt of funds of an amount not less in

value than the monetary value issued; and

(iii) accepted as means of payment by undertakings

other than the issuer;”.

Article 7A of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “issuing electronic

money institution”, there shall be substituted the words “issuer”;

and

(b) in subarticle (2) thereof, for the words “issuing electronic

money institution shall clearly indicate” there shall be substituted

the words “issuer shall state”, and for the words “redemption, and”

there shall be substituted the words “redemption in the contract

between the issue and the holder, and”.

Part XV

(1) This Part amends and shall be read and construed as

one with the Excise Duty Act, hereinafter in this Part referred to as “the

principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for finance may by notice in the Gazette establish.

Amendment of

Article 2 of the principal Act shall be amended as follows

article 2 of the

principal Act.

(a) immediately after the definition of “excise goods” there

shall be added the following new definition

“ “excise officer” means any officer charged by lawful

authority with the performance of any duty or function under

this Act;”; and

(b) the definition of “proper officer” shall be deleted.

In the principal Act and in any regulations made thereunder, General amendment

of principal Act.

for the words “officer”, “officer of Customs” or “proper officer” there

shall be substituted in each case the words “excise officer” and for the

words “officers”, “officers of Customs” or “proper officers” there shall

be substituted in each case the words “excise officers”.

Articles 19 to 21 of the principal Act shall be renumbered as Renumbering of

articles 19 to 21 of

articles 36 to 38 respectively, and any reference to any of the said articles the principal Act.

19 to 21 or to any subarticle thereof in the principal Act or in any other

law shall be substituted by a reference to the same article or subarticle

as renumbered by this article.

For article 18 of the principal Act there shall be substituted Substitution of

article 18 of the

the following new articles 18 to 35

principal Act by

new articles 18 to

35.

18. (1) It shall be lawful for any excise officer to carry

out inspections, at reasonable time, at any tax warehouse or

place where excise goods are kept or suspected to be kept.

(2) The person in whose name the tax warehouse is

registered, shall provide such excise officers with the

necessary assistance for the execution of their duties.

(3) A person other than the person in whose name a

tax warehouse is registered, who is in possession of any books,

documents including machine readable material or other

records shall likewise be under a duty to produce the same to

the Comptroller or an excise officer.

(4) Any person who wilfully or maliciously refrains

from giving his assistance, or wilfully obstructs, impedes or

delays any excise officer in the execution of his duties or

powers under this Act or under regulations made thereunder,

shall be guilty of an offence under this article and shall be

liable, on conviction, to a fine (multa) not exceeding five

thousand liri.

19. (1) Without prejudice to the provisions of the

search warrant.

foregoing article, the Attorney General or a magistrate may,

if satisfied on the sworn information by an excise officer

that there are reasonable grounds for suspecting that -

(a) anything liable to forfeiture under this or any

other law relating to excise, or

(b) any records relating to transactions in

contravention of this or any other law relating to excise,

are kept or concealed on or at any premises, place or vehicle

issue a search warrant.

(2) A search warrant issued under this article shall

be sufficient authority for the excise officer named therein,

alone or accompanied by such other excise officers or such

other persons as the excise officer considers necessary, at

any time or times within one month of the date of issue of

the warrant, to enter (if need be by force) the premises or

other place or vehicle named or specified in the warrant, to

search such premises, place or vehicle, to examine anything

found therein or thereat, to inspect any record found therein

or thereat and, if there are reasonable grounds for suspecting

that anything found therein or thereat is liable to forfeiture

under this Act or any other law relating to excise, or that a

record found there may be required as evidence in

proceedings under this Act or such other law, to detain or

seize the thing as liable to forfeiture or, in the case of a record,

to detain it for so long as it is reasonably required for such

purpose.

Power to stop

20. (1) An excise officer in uniform may stop any

vehicle in order -

(a) that such excise officer, or any excise

officer accompanying such excise officer, may exercise

any power conferred on them by article 19 in relation

to excise products or any other products chargeable with

excise duty under any other law, where there are

reasonable grounds to believe that such products are

being transported in or on such vehicle, or

(b) to examine and take samples of mineral

oil under article 21(1)(c).

(2) Any person in charge of a moving vehicle shall, at

the request of an excise officer in uniform or a Police officer,

stop such vehicle.

(3) Any person in charge of a vehicle shall, whether

such vehicle has been stopped by an excise officer under this

article or article 20(1), or is already stationary, at the request

of an excise officer -

(a) keep such vehicle stationary for such period

as is reasonably required to enable an excise officer to

exercise any power conferred on such excise officer by

article 19 or by article 20(1), or

(b) where such vehicle is, in the opinion of such

excise officer, situated in a place unsuitable for the

exercise of any power conferred on such officer by the

said articles, take such vehicle or cause it to be taken to

such place as such excise officer may consider suitable

for the exercise of such power.

21. (1) An excise officer, on production of his

authorisation if so requested by any person affected, or any

excise officer accompanying such officer, may -

(a)

examine a vehicle,

(b) carry out such searches of a vehicle as may

appear to the excise officer to be necessary to establish

whether -

(i) anything on or in the vehicle or in any

manner attached to the vehicle is liable to forfeiture

under this Act or any other law relating to excise,

or

(ii) any excisable products being transported

in or on, or in any manner attached to, the vehicle

correspond in every material respect with the

description of any such products in a document

referred to in paragraph (d) (iii),

(c) take samples, without payment, of any product

subject to excise duty in or on, or in any manner attached

to the vehicle, and

(d) question the person in charge of the vehicle

in relation to the vehicle or anything on or in any manner

attached to the vehicle, and require such person -

(i) to give, within such time and in such form

and manner as may be specified by the excise

officer, all such information in relation to the vehicle

as may reasonably be required by such excise officer

and is in the possession or procurement of such

person,

(ii) within such time and in such manner as

may be specified by the excise officer, to produce

and permit the inspection of, and the taking of

copies of, or of extracts from, all such records

relating to the vehicle and any products being so

transported, as are reasonably required by such

excise officer and are in the possession or

procurement of the person, and

(iii) to produce to the excise officer any

accompanying document, duty document or

exemption certificate accompanying any products

subject to excise duty being transported in or on, or

in any manner attached to, the vehicle.

(2) An excise officer, on production of his

authorisation, if so requested by any person affected, may -

(a) examine and take samples of any mineral oil

in any fuel tank or otherwise present on or in any vehicle,

or anything attached to any vehicle, for use or capable

of being used for combustion in the engine of the vehicle,

whether or not the vehicle is attended,

(b) examine or inspect any vehicle or anything

attached to any vehicle for the purposes of paragraph

(a),

(c)

question -

(i)

the owner of any vehicle,

(ii) any person who for the time being stands

registered as the owner of any vehicle,

(iii) any director, manager or principal

officer of such owner where the registered owner

is not one or more individuals, or

(iv)

the person in charge of any vehicle,

in relation to such mineral oil, and require such owner,

person, director, manager or principal officer to give to

such excise officer any information in relation to such

mineral oil as may reasonably be required and which is in

the possession or procurement of such owner, person,

director, manager or principal officer, as the case may be.

22. (1) An excise officer may, at all reasonable times,

on production of his authorisation, if so requested by any

person affected, enter any premises or other place (other than

a dwelling) in which -

(a) the production, processing, holding, storage,

keeping, importation, purchase, packaging, offering for

sale, sale or disposal of any excise goods is being or is

reasonably believed by the excise officer to be carried

on,

(b) the manufacture, distribution, storage, repair,

modification, importation, dealing, delivery or disposal

of mechanically propelled vehicles is being, or is

reasonably believed by the excise officer to be carried

on, or

(c) any records relating to, or reasonably believed

by the excise officer to relate to, the products or activities

referred to in paragraphs (a) and (b) are being kept or

are reasonably believed by the excise officer to be kept.

(2) An excise officer, on production of his

authorisation, if so requested by any person affected, may -

(a) enter and inspect any premises or other place

(other than a dwelling) for the purposes of this article

and bring onto those premises any vehicle being used in

the course of his or her duties,

(b) make such search and investigation of such

premises or place as such excise officer may consider to

be proper.

(3) An excise officer in or on any premises or

place pursuant to subarticle (1) hereof may there -

(a) carry out such search and investigation as such

excise officer may consider to be proper,

(b) take account of, and without payment, take

samples of any product subject to excise duty and of

any materials, ingredients and substances used or likely

to be used in the manufacture of such product,

(c) in relation to any records referred to in

subarticle (1)(c) hereof –

(i) search for, inspect and take copies of or

extracts from any such records (including, in the

case of any information in a non-legible form, a

copy of, or an extract from, such information in a

permanent legible form),

(ii) remove and retain such records for such

period as may reasonably be required for their

further examination, and

(iii) require any person to produce any such

records which are in that person’s possession,

custody or procurement and in the case of

information in a non-legible form, to produce it in

a legible form or to reproduce it in a permanent

legible form,

(d)

question any person present in relation

to -

(i) any product referred to in subarticle (1)(a)

hereof or any materials, ingredients or other

substances used or intended to be used in the

manufacture of such product,

(ii) any vehicle,

(iii) any records referred to in subarticle

(1)(c) hereof, produced or found in or on such

premises or place, and such person shall give to

such excise officer all information required of such

person which is in such person’s possession,

custody or procurement.

(4) An excise officer in or on any premises

or place pursuant to artice 21, or any person

accompanying an excise officer pursuant to article 20,

may require any person present to give to such excise

officer or such other person his or her name and address.

Obligation to

23. An excise officer may require any person whom

information. such officer has reasonable cause to believe to be guilty of an

offence under subarticle 16(1) or article 17 of the Act, to

furnish to such officer -

(a)

his or her name, address and date of birth,

(b) all such information in relation to the goods

subject to excise duty as may be reasonably required by

such excise officer or member and which is in the

possession or procurement of such person.

24. Where an excise officer has reasonable grounds to

suspect that a person is committing an offence under subarticle

16(1) or article 17 of the Act, then such officer may detain

such person without warrant and as soon as immediately

practicable thereafter and in any case not later than two hours

after such detention, place such officer in the custody of an

officer of the Police force whereupon such officer of the Police

force shall either release such person or proceed to present

such person before a court and the provisions of the Criminal

Code relating to arrest shall mutatis mutandis apply to the

excise officer and the officer of the Police force.

Detention of

25. (1) Where an excise officer or a Police officer

reasonably suspects that any products, subject to excise

duty or any other goods, are liable to forfeiture under this

Act then -

(a)

all such excisable products or other goods,

(b) any other thing being made use of in the

conveyance of such products or goods, and

(c) any vehicle in or on which or attached to which

any such products or goods are found,

may be detained by such excise officer or Police officer until

such examination, enquiries or investigations as may

reasonably be deemed necessary by such excise officer or

another excise officer, or Police officer have been made for

the purposes of determining whether or not such products,

goods, thing or vehicle are liable to forfeiture.

(2) When a determination referred to in subarticle

(1) of this article has been made in respect of any such

products, other goods, thing or vehicle or on the expiry of a

period of thirty days from the date on which such products,

goods, thing or vehicle were detained under that subarticle,

whichever is the earlier, such products, goods, thing or vehicle

are to be either seized as liable to forfeiture under the Act, or

released.

26. (1) Any goods or vehicles that are liable to

forfeiture under the Act may be seized by an excise officer.

(2) Any Police officer who has detained any goods

or vehicles that are liable to forfeiture under the Act shall

deliver the same to an excise officer as soon as is practically

possible and in no case later than forty eight hours after such

detention.

27. (1) Subject to subarticle (2) of this article, an

excise officer shall give notice of any seizure and of the

grounds therefor to any person who to the officer’s knowledge

was at the time of the seizure the owner or one of the owners

of the thing seized.

(2) Notice under subarticle (1) hereof need not

be given under this article to a person if the articles were

detained in the presence of the person, of the person suspected

to have committed the offence that occasioned the seizure or

in the case of an article seized on any ship or aircraft, in the

presence of the master or commander of such ship or aircraft.

(3) Notice under subarticle (1) hereof shall be

given in writing and the notice shall include a copy of article

28 and shall be deemed to have been duly given to the person

concerned -

(a)

if it is delivered to the person personally, or

(b) if it is addressed to the person and left or

forwarded by registered post to the person at the usual

or last known place of abode or business of the person

or, in the case of a body corporate, at its registered or

principal office, or

(c) if the person has no known address in Malta

or Gozo, by publication of notice of the seizure concerned

in the Gazette.

28. (1) A person who claims that anything seized is

not liable to seizure (such person hereinafter in this article

and in article 29 referred to as “the claimant”) shall, within

thirty days of the date of the notice of seizure or, where no

such notice has been given to the claimant, within thirty five

days of the date when the article was first detained, give notice

in writing of such claim to the Comptroller.

(2) The claimant shall, within thirty days from

the date upon which such notice was given, institute

proceedings to declare such articles as not being subject to

seizure in the competent civil court, in default of which the

claim shall be deemed to have been abandoned.

(3) A notice under subarticle (1) hereof shall

specify the name and address of the claimant and, in the case

of a claimant who is outside Malta, the name and address of a

person in Malta who is authorised by him to act as his attorney

and to accept service of any document required to be served

on the claimant and to act on behalf of the claimant.

29. (1) The Comptroller may, in his discretion, and

if so ordered on writing by the Minister responsible for finance

restore anything seized under the Act.

(2) Without prejudice to subarticle (1) of this

article, where a notice of claim relating to the thing seized

has been duly given under article 28, the Comptroller may as

he thinks fit and notwithstanding the pendency of the

proceedings wherein the seizure is contested -

(a) deliver it up to the claimant on payment to

the Comptroller of such sum as the Comptroller thinks

proper, being a sum not exceeding that which in the

opinion of the Comptroller represents the value of the

thing, including any duty or tax chargeable on it which

has not been paid, or

(b) if the thing seized is in the opinion of the

Comptroller of a perishable nature, sell or destroy it.

(3) If, where anything is delivered up, sold or

destroyed under this article, it is held by the court in

proceedings under article 28 that the thing was not liable to

forfeiture at the time of its seizure, the Comptroller shall, on

demand tender to such claimant -

(a) an amount equal to any sum paid by the

claimant under subarticle (2) hereof,

(b) if he has sold the thing, an amount equal to

the proceeds of sale, or

(c) if he has destroyed the thing, an amount equal

to the market value of the thing at the time of its seizure,

together with the reasonable costs of any court

proceedings to challenge the seizure where the

Comptroller is of the opinion that the claim was justified.

(4) If the claimant accepts the amount tendered

under subarticle (3), such claimant shall not be entitled to

maintain proceedings in any court on account of the seizure,

detention, sale or destruction of the thing concerned.

(5) All goods seized by an excise officer or by a

Police officer as liable to forfeiture shall, after such seizure

has become final either by the lapse of time allowed for

contestation or after such contestation has been unsuccessful,

be either destroyed, sold or otherwise disposed of in

accordance with the provisions of article 38.

(6) Notwithstanding any other provision of this

Act relating to goods seized as liable to forfeiture, an excise

officer who seizes as liable to forfeiture any spirits or any

stills, vessels, utensils, wort or other material for

manufacturing, distilling or preparing spirits may at his

discretion spill, break up or destroy any of those goods.

30. (1) Any person who, in the opinion of the

Comptroller.

Comptroller, is liable to pay excise duty and is called on by

the Comptroller to pay such duty may appeal against the

decision of the Comptroller.

(2) Any person who believes that he is entitled to

a refund of any excise duty paid by him may appeal from any

decision of the Comptroller denying him such refund.

(3) Any person who -

(a) has not been approved by the Comptroller as

an authorised warehouse keeper under regulation 4 of

the Excise Goods Regulations or has been refused

approval in respect of any premises as a tax warehouse

under article 9, or

(b) has had any such approval revoked under

article 11,

may appeal to the Comptroller.

(4) An appeal under subarticles (1), (2) or (3) shall

be in writing and shall set forth in detail the grounds of appeal.

(5) An appeal shall be lodged by the person

concerned with the Comptroller within the period of two

months from the date of -

(a)

the payment of the excise duty,

(b) the notification by the Comptroller to pay an

amount of excise duty,

(c)

any partial refund of the excise duty,

(d) the notification by the Comptroller of a refusal

of a refund of excise duty, or

(e) the notification by the Comptroller of any

decision referred to in subarticle (3),

or within such longer period as the Comptroller may, in

exceptional cases, allow.

(6) An appeal shall, subject to subarticle (12), be

determined by the Comptroller within a period of 30 days

from its lodgement with him.

(7) The Comptroller may appoint one or more

excise officers for the purposes of carrying out his functions

under this article but no such officer shall be so appointed to

determine an appeal in respect of any matter which such excise

officer may have himself determined.

(8) The Comptroller shall in writing notify the

appellant of the determination of the appeal and the reasons

for such determination.

(9) Where the Comptroller on appeal determines

that a refund is due, he shall repay the amount overpaid to the

appellant.

(10) Where the Comptroller on appeal determines

that any excise duty is due, the appellant concerned shall pay

the amount so due.

(11) For the purpose of determination of an appeal

any goods or vehicles to which the appeal relates are to be

produced to the comptroller for inspection, if so required.

(12) Where an appeal has not been determined

by the Comptroller within the time referred to in subarticle

(6) the Comptroller shall be deemed to have refused the appeal.

31. (1) Save as provided for in article 32 an appeal

Excise Duty

from the decision of the Comptroller under article 30 shall lie

to the Excise Duty Appeals Board.

(2) A person who intends to appeal under this

article against a determination of the Comptroller shall -

(a) within 30 days of the notification of such

determination, or

(b) within 30 days of the expiry of the time limit

for such determination,

whichever is the earlier, give notice in writing to him of such

intention.

(3) (a) Subject to paragraph (c), where a notice

or other document which is required or authorised to be served

by this article falls to be served on a body corporate, such

notice is to be served on the secretary or other officer of the

body corporate.

(b) Any notice or other document which is

required or authorised by this article -

(i) to be served by the Comptroller or by an

appellant may be served by post, and

(ii) in the case of a notice or other document

addressed to the Comptroller, it shall be addressed and

sent to the Comptroller of Customs, Custom House,

Valletta CMR 02, or such other address as may be

determined from time to time by the Minister by notice

in the Gazette.

(c) Any notice or other document which is required

or authorised to be served by the Comptroller on an appellant

under this article may be sent to the advocate, accountant or

other agent of the appellant and a notice so served is deemed

to have been served on the appellant unless the appellant

proves to the satisfaction of the Board, that he or she had,

before the notice or other document was served, withdrawn

the authority of such advocate, accountant or other agent to

act on his or her behalf.

(4) Prima facie evidence of any notice given

under this article by the Comptroller or by an officer of the

Comptroller may be given in any proceedings by production

by an officer of the Comptroller of a document purporting to

be a copy of the notice and it shall not be necessary to prove

the official position of the person by whom the notice purports

to be given or, if it is signed, the signature, or that the person

signing and giving it was authorised so to do.

Excise Duty

32. (1) There shall be a Board to be designated “the

Excise Duty Appeals Board”, hereinafter referred to as the

Board, which shall be composed of three members. The

chairman shall be a person with experience in the legal field,

appointed by the Minister, and of the two other members of

the Board one shall be a person who, in the opinion of the

Minister, can represent the interests of the Government and

the other a person who in the opinion of the Minister can

represent the interests of importers, appointed by the Minister

after consultation with representatives of the trade.

(2) Should any of the members of the Board have

a direct personal interest in any dispute he shall declare such

interest and shall abstain from taking cognizance of that

dispute, and such members may be challenged accordingly.

(3) The Minister may also appoint substitute

members of the Board.

(4) The Board shall give due prompt consideration

to any matter relating to excise referred to it by the Comptroller

in accordance with the provisions of subarticle (12) of article

30. (5) The Board shall regulate its own procedure.

(6) No appeal shall lie to Board where the duty

in dispute does not exceed one hundred and fifty liri.

(7) After considering the matter referred to it, and

any submissions which may have been made to it by the

Comptroller and the appellant, the Board shall determine

whether the principles set out in article 30 have been followed

by the Comptroller in the assessment made by him.

(8) Where the Board decides that the principles

referred to in subarticle (7) hereof have been followed, the

determination made by the Comptroller in accordance with

the provisions of subarticle (6) of article 30, shall be

confirmed; where the Board decides that the said principles

have not been followed, the Board shall recommend to the

Minister to direct the Comptroller to make a fresh

determination, which recommendation shall contain the

principles which in the opinion of the Board had been

overlooked by the Comptroller. The Minister shall thereupon

refer the matter to the Comptroller for a fresh determination,

which shall then be final.

(9) Notice of the decision on appeal and the

reasons therefor shall be given in writing to the appellant who

shall also be informed of his rights of any further appeal.

(10) Nothing in this article contained shall be

deemed to affect any right of the appellant to contest a decision

by the Board before any competent court.

33. Unless the Board determines otherwise because the

provision of such deposit or the giving of such guarantee could

impinge the claimant’s right of appeal, where an appeal has

been made under article 30 or 32 in respect of an amount of

duty which a person is called on by the Comptroller to pay,

such appeal shall not be determined by the Comptroller or

the Board, as the case may be, unless such amount of duty

has been deposited with the Comptroller or adequate security

therefor in the form of a banker guarantee has been given.

34. Where criminal prosecution is pending against any

person in respect of any offence under this Act in connection

prosecution.

with which any seizure has been made under this Act, or where

a person has been informed that such proceedings are being

contemplated then no appeal under articles 30 to 32 may be

entered until the criminal prosecution has been finally

concluded or the said person has been informed that no

prosecution will be initiated and the terms referred in the said

articles for appeal shall be suspended accordingly.

35. (1) It shall be lawful for the President of Malta,

officers may

by a notice published in the Gazette, to authorise any Excise

officer or any officer of customs to exercise, within such limits

as shall by a notice published as aforesaid be prescribed by

the President of Malta, such functions as by any law or

regulations made thereunder, are vested in the officers of the

Executive Police.

(2) Before any such officer or person shall

exercise any of the functions referred to in subarticle (1) of

this article, he shall take the oaths here following

“I ………………………. do swear/solemnly

affirm that I will bear true faith and allegiance to the

people and the Republic of Malta and its Constitution.

(So help me God).

“I ……………………… do swear/solemnly affirm

that while holding the office of (insert description of

office) I will do the best of my knowledge and ability

discharge the functions of an officer the Executive Police

faithfully and according to law. (So help me God).”.”.

Part XVI

(1) This part amends the Companies Act, hereinafter in this Amendment of the

Companies Act,

Part referred to as “the principal Act”.

(2) This Part shall be read and construed as one with the

principal Act, and shall come into force on such date as the Minister

responsible for finance and economic affairs may by notice in the Gazette

appoint, and different dates may be so appointed for different provisions

and different purposes thereof.

Article 84 of the principal Act shall be amended as follows:-

(a) for paragraph (b) of subarticle (2) thereof there shall be

substituted the following

“(b) furthermore, the memorandum of the company

shall limit the object of the company to either one of the

following -

(i) the collective investment of its funds in

securities and in other movable and immovable property,

or in any of them, with the aim of spreading investment

risk; and giving shareholders of the company the benefit

of the results of the management of its funds, and in the

fulfilment of that object, it shall be entitled to perform

any act which is connected with or ancillary thereto; or

(ii) to act and operate as a Retirement Fund within

the meaning of articles 2 and 4 of the Special Funds

(Regulation) Act; and”; and

(b) immediately after subarticle (10) thereof, there shall

be inserted the following new subarticle

“ (11) The Minister, in consultation with the

Minister responsible under the Special Funds

(Regulation) Act, acting on the advice of the Malta

Financial Services Authority, may make regulations to

apply and extend mutatis mutandis the provisions of this

article to investment companies with variable share

capital established for the purpose of acting and operating

as a Retirement Fund within the meaning of articles 2

and 4 of the Special Funds (Regulation) Act; and without

prejudice to the generality of the foregoing may, by such

regulations, provide for any matter referred to in the

immediatley preceding subarticle.”.

For paragraph (a) of subarticle (6) of article 194 of the

principal Act there shall be substituted the following

“(a)

the business of the company consists either of -

(i) investing in funds mainly in securities with the aim

of spreading investment risk and giving members of the

company the benefit of the results of the management of its

funds; or

(ii) acting and operating as a Retirement Fund within

the meaning of articles 2 and 4 of the Special Funds

(Regulation) Act;”.

In the proviso to subarticle (1) of article 218 of the principal Amendment of

article 218 of the

Act for the words “an application in terms of paragraph (a)” there shall principal Act.

be substituted the words “an application in terms of paragraphs (b) or

PART XVII

(1) This Part amends and shall be read and construed as Amendments to the

one with the Telecommunications (Regulation) Act, hereinafter in this Telecommuncations

(Regulation) Act,

Part referred as “the principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for telecommunication may by notice in the Gazette

establish.

The title of Part 5 of the principal act shall be substituted by Re-naming of Part

5 of the principal

the following

Act.

“5. Protection of Conditional Access Services and Further

Functions of the Authority”.

Immediately following article 32 of the principal Act there Addition of new

article 32A to the

shall be added the following new article 32A

principal Act.

32A. (1)

In this article

“broadcaster” means the natural or legal person who has

editorial responsibility for the composition of television

programme services for reception by the general public and

transmits them, or has them transmitted, complete and

unchanged, by a third party;

“conditional access” means any technical measure or

arrangement permitting access in an intelligible form, and

subject to prior individual authorisation, to one of the services

constituting a protected service;

“conditional access device” means any equipment,

software, or arrangement designed or adapted to give access

in an intelligible form to one of the services constituting a

protected service;

“illicit device” means any equipment, software, or

arrangement designed or adapted to give access in an

intelligible form to one of the services constituting a protected

service without the authorisation of the service provider;

“programme service” means all the items within a single

service provided by a given broadcaster;

“protected service” means any of the following services

when provided against remuneration and on the basis of

conditional access

(i)

Television programme services;

(ii) Radio broadcasting services including radio

programmes intended for reception by the public,

transmitted by wire or over the air, including by satellite;

(iii) Information society services offered by

electronic means, at a distance and at the individual

request of the recipient of the services

or the provision of conditional access to the above services

considered as a service in its own right.

(2)

Any person who -

(a) manufactures or produces illicit devices for

commercial purposes; or

(b) imports illicit devices into Malta for

commercial purposes; or

(c) distributes illicit devices in or from Malta for

commercial purposes; or

(d) sells or rents out illicit devices for commercial

purposes; or

(e) is in possession of illicit devices for

commercial purposes; or

(f) installs, maintains or replaces illicit devices

for commercial purposes; or

(g) commercially promotes, markets or advertises

illicit devices,

shall, on conviction, be liable to imprisonment for a term not

exceeding one year or to a fine (multa) of ten thousand liri or

to both such fine and imprisonment.

(3) In proceedings taken under subarticle (2) the

Court shall order the Commissioner of Police to destroy goods

established to be illicit devices without compensation of any

sort to any person and, where a person is found guilty of

infringing the provisions of subarticle (2) in respect of the

said goods, at the cost of that person.

(4) A provider of a protected service whose interests

are affected by any act mentioned in subarticle (2)(a) to (g)

shall have against the perpetrator of any such act and in respect

of such act

(a)

a civil action for damages, and

(b) a right to demand a warrant of prohibitory

injunction to obtain provisional protection of his

interests, and

(c) a right to demand an order from the competent

Court for the destruction or, if appropriate, the disposal

outside commercial channels of illicit devices.”.

In subarticle (1) of article 40 of the principal Act, for the Amendment of

article 40 of the

words “under article 39(1)(d)” there shall be substituted the words “under principal Act.

articles 32A and 39(1)(d)”.

Part XVIII

(1) This Part of this Act amends and shall be read and

construed as one with the Copyright Act, hereinafter in this Part referred

to as “the principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for the protection of intellectual property may by

notice in the Gazette establish, and different dates may be so established

for different provisions and different purposes thereof.

Article 2 of the principal Act shall be amended as follows:-

(a) immediately before the definition of “artistic work” there

shall be added the following definition:–

“ “European Union” means the European Union referred

to in the Treaty;”;

(b) immediately after the definition “Malta” there shall be

added the following definition:–

“ “Member State” means a state which is a member of

the European Union;”;

(c) immediately after the definition of “reproduction” there

shall be added the following definition:–

“ “rights-management information” means any

information provided by rightholders which identifies the

work or other subject-matter referred to in this Act, the author

or any other rightholder, or information about the terms and

conditions of use of the work or other subject-matter, and

any numbers or codes that represent such information;”; and

(d) immediately after the definition of “sound recording”

there shall be added the following definitions:–

“ “technological measures” means any technology,

device or component that, in the normal course of its operation,

is designed to prevent or restrict acts, in respect of works or

other subject-matter, which are not authorised by the

rightholder of any copyright or neighbouring right or the sui

generis rights as provided for by this Act. Technological

measures shall be deemed “effective” where the use of a

protected work or other subject-matter is controlled by the

rightholders through application of an access control or

protection process, such as encryption, scrambling or other

transformation of the work or other subject-matter or a copy

control mechanism, which achieves the protection objective;

“the Treaty” has the same meaning assigned to it by the

European Union Act, 2003.”.

For article 7 of the principal Act there shall be substituted Substitution of

article 7 of the

the following:–

principal Act.

7. (1) Copyright in an audiovisual work, a database,

a literary, musical or artistic work shall be the exclusive right

to authorise or prohibit the doing in Malta in respect of the

protected material in its totality or substantial part thereof,

either in its original form or in any form recognisably derived

from the original of any of the following

(a) the direct or indirect, temporary or permanent

reproduction by any means and in any form, in whole or

in part;

(b) the rental and lending;

(c)

the distribution;

(d) the translation in other languages inclduing

different computer languages;

(e) the adaptation, the arrangement and any other

alteration and the reproduction, distribution,

communication, display or performance to the public of

the results thereof;

(f) the broadcasting or rebroadcasting or the

communication to the public or cable retransmission;

(g) display or performance to the public

Provided that the right to authorise or prohibit the

cable retransmission of a television broadcase shall be

exercisable only through a collecting society.

(2) The right to authorise or prohibit cable

retransmission shall not apply when the transmission is

made in Malta

(a) if the retransmission is in pursuance of a

“must carry” requirement as per article 40 of the

Broadcasting Act; and

(b) if and to the extent that the transmission

is made for reception in the area in which the cable

retransmission may be received.

(3) The right to authorise or prohibit the cable

retransmission of a television broadcast shall be

exercisable only through a collecting society.

(4) In the case provided for in subarticle (2) where

a rightholder has not transferred the management of his

rights to a collecting society, the collecting society which

manages rights of the same category shall be deemed to

be mandated to manage his rights. Such rightholder shall

have the same rights and obligations resulting from the

agreement between the cable operator and the collecting

society which is so deemed to be mandated to manage

his rights as the rightholders who have mandated that

collecting society and he may claim such rights within a

period of three years from the date of the cable

retransmission which includes his work or other

protected subject-matter.

(5) Where no agreement is concluded regarding

authorization of the cable retransmission of a broadcast,

either party may call upon the assistance of one or more

mediators appointed by the chairman of the Malta

Arbitration Centre, unless otherwise agreed to by all the

parties. The tasks of the mediators shall be to provide

assistance with negotiation. They may also submit

proposals to the parties. It shall be assumed that all the

parties accept a proposal as referred to in this subarticle

if none of them expresses its opposition within a period

of three months. Notice of the proposal and of any

opposition thereto shall be served on the parties

concerned by judicial act, unless otherwise agreed to by

the parties. The mediators shall be so selected that their

independence and impartiality are beyond reasonable

doubt.".

For article 8 of the principal Act there shall be substituted

the following

“8. (1) The first sale or other transfer of ownership

in the market of the original work enjoying copyright or copies

thereof, when such sale is effected by or with the consent of

the copyright owner himself, shall exhaust the exclusive

distribution right in respect of that work or its copy.

(2) For the purposes of this article “market” means

the market in Malta and as from the 1 st May 2004 the European

Union.”.

For article 9 of the principal Act there shall be substituted Substitution of

article 9

the following

of the principal Act.

9. (1) Copyright in an audiovisual work, a database,

a literary work other than in the case of a computer

programme, a muscial or artistic work shall not include the

right to authorise or prohibit-

(a) temporary acts of reproduction, which

are transient or incidental and an integral and

essentail part of a technological process and whose

sole purpose is to enable

(i) a transmission in a network between

third parties by an intermediary, or

(ii) another lawful use

of a work or other subject-matter to be made, and

which have no independent economic significance;

(b) reproductions on paper or any similar

medium, effected by the use of any kind of

photographic technique or by some other process

having similar effects, with the exception of sheet

music, provided that the rightholders received fair

compensation;

(c) reproductions on any medium made by

a natural person for private use and for ends that

are neither directly nore indirectly commerical, on

condition that the rightholders receive fair

compensation which takes account of the

application or non-application or technological

measures referred to in subarticles 42 (3) and (4) to

the work or subject-matter concerned;

(d) specific acts of reproduction made by

publicly accessible libraries, educational

establishments or museums, or by archives, which

are not for direct or indirect economic or

commercial advantage;

(e) ephemeral recordings or works made by

broadcasting organisations by means of their own

facilities and for their own broadcasts

Provided that any reproduction of a work made

under this paragraph may, if it is of exceptional

documentary character be preserved in official

archives;

(f) reproduction of broadcasts made by

social institutions pursuing non-commercial

purposes, such as hospitals or prisons, on condition

that the rightholders receive fair compensation;

(g) the performing, playing or showing of a

work in a place where no admission fee is charged

in respect of such an act by any club whose aim is

not profit-making;

(h) the reproduction, translation, distribution

or communication to the public of a work for the

sole purpose of illustration for teaching or scientific

research only to the extent justified by the non-

commercial purpose to be achieved, and as long as

the source, including the author’s name, is, unless

this is impossible, indicated;

(i) the reproduction, translation, distribution

or communication to the public of a work for the

benefit of people with a disability, which are directly

related to the disability and on a non-commercial

nature, to the extent required by the specific

disability;

(j) the reproduction by the press, translation,

distribution or communication to the public of

published articles on current economic, political or

religious topics or of broadcast works or other

subject-matter of the same character, in cases where

such use is not expressly reserved, and as long as

the source, including the author’s name, is indicated,

or use of works or other subject-matter in

A

connection with the reporting of current events, to

the extent justified by the informatory purpose and

as long as the source, including the author’s name,

is, unless this is impossible, indicated;

(k) the reproduction, translation, distribution

or communication to the public of quotations for

purposes such as criticism or review, provided that

they relate to a work or other subject-matter which

has already been lawfully made available to the

public, as long as, unless this is impossible, the

source, including the author’s name, is indicated,

and that their use is in accordance with fair practice,

and to the extent required by the specific purposes;

(l) the reproduction, translation, distribution

or communication to the public of a work for the

purposes of public security or to ensure the proper

performance or reporting of administrative,

parliamentary or judicial proceedings;

(m) the reproduction, translation,

distribution or communication to the public of

political speeches as well as extracts of public

lectures or similar works or subject-matter to the

extent justified by informatory purposes and

provided that the source, including the author’s

name, is, except where this is impossible, indicated;

(n) the reproduction, translation, distribution

or communication to the public of a work for use

during religious celebrations or official celebrations

organized by a public authority;

(o) the reading or recitation in public by a

person of any reasonable extract from a published

literary work if accompanied by a sufficient

acknowledgement;

(p) the inclusion in a communication to the

public, the making of a graphic representation and

the making of a photograph or film, of a work of

architecture or sculpture or similar works made to

be located permanently in public places;

(q) the incidental inclusion of a work or other

subject matter in other material;

(r) the reproduction, distribution or

communication to the public of a work for the

purpose of advertising the public exhibition or sale

of artistic works, to the extent necessary to promote

the event, excluding any other commercial use;

(s) the reproduction or communication to the

public of a work by way of caricature, pastiche or

parody;

(t) the reproduction, translation, distribution

or communication to the public of a work in

connection with the demonstration or repair of

equipment;

(u) the reproduction, distribution or

communication to the public of an artistic work in

the form of a builidng or a drawing or plan of a

building for the purposes of reconstructing the

building;

(v) the communication to the public, for the

purpose of research or private study, to individual

members of the public by dedicated terminals on

the premises of establishments referred to in

subparagraph (d) above of works and other subject-

matter, not subject to purchase or licensing terms,

which are contained in their collections;

(w) in the case of a database, the

performance of those acts which are normally

necessary in order that the licensed user obtains

access to the contents of the database and normal

use thereof, in respect of the whole or part of the

database which the user is licensed to use; and any

contractual provisions running counter to what is

prescribed in this paragraph shall be null and void.

(2) Copyright in a computer programme shall not

include the right to authorize or prohibit

(a) the observation, the study or testing of

the functioning of the program by the licensed user

in order to determine the ideas and principles which

underlie any element of the program if this is done

whilst performing any of the acts of loading,

A

displaying, running, transmitting or storing the

program which he is entitled to do;

(b) the reproduction by the licensed user of

the code and translation of its form where this is

indispensable to obtain the information necessary

to achieve the interoperability of an independently

created computer program with other programs,

provided that these acts are confined to the parts of

the original program which are necessary to achieve

interoperability and the information necessary to

achieve interoperability has not previously been

readily available to the licensed user

Provided that any information obtained from

the reproduction of the code and the translation of

the form of a computer program made under this

paragraph shall not

(i) be used for purposes other than

to achieve the interoperability of the

independently created computer

program;

(ii) be given to other persons,

except when necessary for the

interoperability of the independently

created computer program;

(iii) be used for the development,

production or marketing of a computer

program substantially similar in its

expression to the original program or for

any other act which infringes copyright;

(c) the making of a copy or a back-up copy,

the translation, adaptation, arrangement and any

other alteration of a computer program and the

reproduction of the results thereof, in so far as this

is necessary for the licensed user to make proper

use of the program in accordance with its intended

purpose, including the correction of errors; and the

right of the licensed user to make a back-up copy

of a computer program may not be restricted or

excluded by contract in so far as it is necessary for

the use of that computer program.

(3) The exceptions and limitations provided for

in this article shall only be applied in such particular

cases which do not conflict with a normal exploitation

of the work or other subject-matter and do not

unreasonably rejudice the legitimate interests of the

rightholder.”.

For article 20 of the principal Act there shall be substituted

the following

20. (1) The distribution right in respect of

fixations of performances, sound recordings, original and

copies of audiovisual works and fixations of broadcasts

conferred by the preceding articles of this Act on

performers, producers of sound recordings, producers

of the first fixations of audiovisual works and

broadcasting organisations respectively, shall be

exhausted by the first sale or transfer of ownership in

the market of the originals or copies of such works in

regard to that particular original or copy, when such sale

is effected by the neighbouring right owner or with his

consent.

(2) For the purposes of this subarticle

“market” means the market in Malta and as from the 1 st

May 2004 the market in any othe Member State.”.

For article 21 of the principal act there shall be substituted

the following

21. The provisions of article 9 shall apply mutatis

mutandis to the neighbouring rights conferred by this

Act in like manner as they apply to copyright in a literary,

musical or artistic or audiovisual work, or database.”.

For article 42 of the principal Act there shall be substituted

the following

42. (1) Copyright, neighbouring rights and sui

generis rights are infringed by

(a) any person who does or causes

another person to do,without a licence from the

owner or holder thereof, an act the doing of which

is controlled by copyright, neighbouring rights

or sui generis rights;

A

(b) any person who, without the licence

of the copyright owner or right holder, imports

into Malta otherwise than for private and

domestic use, or distributes therein by way of

trade, hire or otherwise, or by way of trade

exhibits in public or is in possesssion or

manufactures in the course of business or offers

or exposes for sale or hire an article in respect of

which copyright, neighbouring rights or sui

generis rights are infringed under the preceding

paragraph;

(c) any person who, without the licence

of the copyright owner or rightholder does

anything which circumvents any effective

technological measures, which the person

concerned carries out in the knowledge,or with

reasonable grounds to know, that he or she is

pursuing that objective;

(d) any person who, without the licence

of the copyright owner or rightholder

maufactures, imports, distributes, sells, rents,

advertises for sale or rental, or possesses for

commercial puposes, devices, products or

components which

(i) are for the purpose of

circumvention of, or

(ii) have only a limited

commerically significant purpose or use

other than to circumvent, or

(iii) are primarily designed,

produced, adapted or performed for the

purpose of enabling or facilitating the

circumvention of,

any effective technological measures;

(e) any person who, without the licence

of the copyright owner or rightholder provides,

promotes, advertises or markets a service which

serves for the purpose of circumvention of any

effective technological measures;

(f) any person who, without the licence

of the copyright owner or right holder, knowingly

performs any of the following acts

(i) the removal or alteration of

any electronic rights-management

information;

(ii) the distribution, importation

for distribution, broadcasting,

communication or making available to

the public of works or other subject-

matter protected under this Act from

which electronic rights-management

information has been removed or altered

without authority,

if such person knows, or has reasonable grounds

to know, that by so doing he is inducing, enabling,

facilitating or concealing an infringement of any

copyright or any neighbouring right, or of the

sui generis rights as provided by this Act

Provided that any of these items of

electronic rights-management information

(i) is associated with a copy of

a copyright work under the terms of this

Act, or

(ii) appears in connection with

the communication to the public of a

copyright work under the terms of this

Act, or

(iii) is covered by a sui generis

right under the terms of this Act.

(2) (a) Notwithstanding the provisions of paragraphs

(c), (d) and (e) of subarticle (1), where the application of any

effective technological measure to a copyright work prevents

any beneficiary of an exception provided for in paragraph (b),

(c), (d), (e), (f), (i), (l) or (h) of subarticle 9 (1) from benefiting

from that exception, the rightholder shall make available to the

beneficiary the means of benefiting from that exception, to the

extent necessary to benefit from that exception or limitation

Provided that the beneficiary shall have legal access to

the protected work or subject-matter concerned

Provided further that there is no voluntary measure taken

by the rightholder or exclusive licencee or agreement between

the rightholder and the other party concerned, the purpose of

which is to enable the beneficiary (or persons of a class to which

the beneficiary belongs) to benefit from the exceptions specified

in the above subparagraph.

(b) The provisions of subarticle (2) (a) do not apply to

copyright works made available to the public on agreed

contractual terms in such a way that members of the public may

access them from a place and at a time individually chosen by

them.”.

Article 53 to 58 of the principal Act shall be repealed.

Repeal of articles 53

to 58 of the

principal Act.

For article 59 of the principal Act, there shall be substituted Substitution of

article 59 of the

the following

principal Act.

“Power to make

59. The Minister may make regulations for the better

regulations.

implementation of the provisions of this Act and, without

prejudice to the generality of the foregoing, may by such

regulations

(a) prescribe any matter that may be

prescribed under this Act;

(b) introduce changes to extend the

protection granted by this Act to any other form

of intellectual property not otherwise protected

by this Act as may be provided by any

international instrument that is binding in Malta;

(c) change and revive the terms of the

duration of protection as may be provided in any

international instrument that is binding in Malta;

(d) alter the rights and limitations

thereof as may be provided in any international

instrument that is binding in Malta.

(e) prescribe the functions of the

Copyright Board;

(f) provide for matters relating to

collecting societies, in particular their

establishment, tasks, manner of operation, setting

and approval of fees and their supervision.”.

Part XIX

(1) This Part amends and shall be read and construed as

one with the Trademarks Act, hereinafter in this part referred to as “the

principal Act”.

(2) This Part shall come into force on such date as the Minister

responsible for the protection of intellectual property may by notice in

the Gazette establish.

In article 2 of the principal Act –

(a) immediately after the definition “Comptroller” there

shall be inserted the following definition

“ “European Union” means the European Union referred

to in the Treaty;”;

(b) immediately after the definition “infringement

proceedings” there shall be inserted the following definition

“ “Member State” means a state which is a member of

the European Union;”; and

(c) immediately after the definition “trademark” there shall

be inserted the following definition

“ “the Treaty” has the same meaning assigned to it by

the European Union Act, 2003;”.

For article 12 of the principal Act, there shall be substituted

the following

12. (1) A trademark shall not entitle the

proprietor to prohibit its use in relation to goods bearing

that trademark which have been put on the market by

the proprietor or with his consent.

(2) The provisions of subarticles (1) of

this article shall not apply where there is legitimate

reasons for the proprietor to oppose further

commercialisation of the goods particularly where the

condition fo the goods is changed or impaired after they

have been put on the market.

(3) For the purposes of this article

“market” means the market in Malta and as from the 1 st

May 2004, the market in any Member State.”.

Part XX

(1) This Part of this Act amends and shall be read and Amendment of the

construed as one with the Patents Act, hereinafter in this part referred to Patents

417. as “the principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for the protection of intellectual property may by

notice in the Gazette establish and different dates may be so established

for different provisions and purposes thereof.

For the long title to the principal Act there shall be substituted Substitution of

titles of the

the following “An Act to make provision for the registration and principal

regulations of Patents and designs” and for the short title thereto there Act.

shall be substituted the following “Patents and Designs Act”.

(1) In article 1 of the principal Act for the words “Patent Amendment of

article 1 of the

Act” there shall be substituted the words “Patents and Designs Act” and principal Act.

any reference in any law to the Patents Act shall be deemed to be a

reference to Part II to XVII of the Act now entitled the Patents and Designs

Act.

(2) Any reference in the Patents Act to “this Act” shall be

deemed to be a reference to Parts II to XVII of the Act now entitled the

Patents and Designs Act.

For article 2 of the principal Act there shall be substituted Substitution of

article 2 of the

the following

principal Act.

2. In Parts II to XVII of this Act unless the context

“Interpretation.

otherwise requires

“biological material” means any material

containing genetic information and capable of

reproducing itself or being reproduced in a

biological system;

“Budapest Treaty” means “The Treaty for

the International Recognition of the Deposit of

Micro-organisms for the Purpose of Patent

Procedure” done at Budapest on the 28 th April

1977;

“the Comptroller” means the Comptroller

of Industrial Property and includes any other

person delegated by the Comptroller or appointed

by the Minister to exercise all or any of the

powers and to perform all or any of the duties of

the Comptroller;

“essential biological process for the

production of plants and animals” means any

process consisting entirely of natural phenomena

such as crossing or selection;

“European Union means the European

Union referred on the Treaty;

“microbiological process” means any

process involving, or performed upon, or

resulting in, microbiological material;

“Member State” means a state which is a

member of the European Union;

“Minister” means the Minister

responsible for the protection of industrial

property and “Ministry” shall be construed

accordingly;

“patent” means the exclusive right

granted by the Comptroller in terms of the

provisions of this Act

“plant varieties” refers to all botanical

genera and species, including, inter alia, hybrids

between genera or species;

“prescribed” means prescribed by Parts

of this Act;

“the register” means the register of

patents kept under this Act and includes the

register of patents kept under the Industrial

Propety (Protection) Ordinance, parts of which

have been repealed by this Act;

“the Treaty” has the same meaning

assigned to it by the European Union Act, 2003;

“variety” means a plant grouping withina

single botanical taxon of the lowest known rank,

which grouping, irrespective of whether the

conditions for the grant of a plant variety right

or patent are fully met, can be

- defined by the expression of the

characteristics that results from a given

genotype or combination of genotypes,

- distinguished from any other

plants grouping by the expression of at

least one of the said characteristics, and

- considered as a unit with regard to

its suitability for being propagated unchanged,

where a plant grouping consists of entire plants

or parts of plants as far as such parts are capable

of producing entire plants.”.

Article 4 of the principal Act shall be amended as follows: Amendment of

article 4

of the principal Act.

(a) for subarticle (1) thereof there shall be substituted the following:-

“(1) Inventions which are new, involve an inventive step

and are susceptible of industrial applications, shall be patentable

Provided that such inventions shall also be patentable

even if they concern a product consisting of or containing

biological material or a process by means of which biological

material is produced, processed or used

Provided further that biological material which

is isolated from its natural environment or produced by

means of a technical process may be subject of an

invention if it previously occurred in nature.”;

(b) in subarticle (5) thereof

(i) for paragraph (b) thereof there shall be substituted

the following

“(b) the human body, at the various stages of its

formation and development, and the simple discovery

of one of its elements, including the sequence or partial

sequence of a gene

Provided that an element isolated from the human

body or otherwise produced by means of a technical

process, including the sequence or partial sequence of a

gene, may constitute a patentable invention, even if the

structure of that element is identical to that of a natural

element;”; and

(ii) for paragraph (e) thereof there shall be substituted

the following paragraphs

“(e)

plant and animal varieties

Provided that patents shall not be granted for plant

varieties only after a new form of plant variety protection is

introduced in such form as may be prescribed

Provided further that a patent may still be granted for a

plant variety in respect of which a patent application is still

pending on the date that a new form of plant variety protection

is prescribed;

(f) essentially biological process of the production

of plants or animals

Provided that this is without prejudice to the patentability

of inventions which concern a microbiological or other

technical process or a product obtained by means of such a

process;

(g) DNA sequence not containing any technical

information and in particular any indication of its

function.”; and

(c) subarticle (6) thereof shall be renumbered as subarticle

(7), and immediately after subarticle (5) thereof there shall be

inserted the following new subarticle

“(6) Inventions which concern plants or animals shall

be patentable if the technical feasibility of the invention is

not confined to a particular plant or animal variety.”.

In subarticle (1) of article 13 of the principal Act the words Amendment of

article 13

“in duplicate” shall be deleted.

of the principal Act.

For subarticle (2) of article 15 of the principal Act there Amendment of

article 15

shall be substituted the following subarticles (2) to (9):-

of the principal Act.

“(2) (a) Where an application refers to an element isolated

from the human body or otherwise produced by means of a

technical process including the sequence or partial sequence of a

gene, the industrial application of a sequence or a partial sequence

of a gene must be disclosed in the patent application.

(b) When the application concerns a sequence or a

partial sequence of a gene used to produce a protein or part of a

protein, it is necessary to specify which protein or part of protein

is produced or function or sequence it performs.

(3) Where an invention involves the use of or concerns

biological material which is not available to the public and which

cannot be described in a patent application in such a manner as to

enable the invention to be reproduced by a person skilled in the

art, the description shall be considered inadequate for the purpose

of this Act unless

(a) it is supplemented by a deposit of such material

with a depository institution as maay be prescribed; and

(b) the application as filed contains such relevant

information as is available to the applicant on the

characteristics of the biological material deposited.

(4) Access to the deposited biological material shall be

provided through the supply of a sample

(a) up to the first publication of the patent application,

only to those persons who are authorised under this Act;

(b) between the first publication of the application and

the granting of the patent, to anyone requesting it or, if the

applicant so requests, only to an independent expert;

(c) after the patent has been granted, and

notwithstanding revocation or cancellation of the patent, to

anyone requesting it.

(5) The sample shall be supplied only if the person

requesting it undertakes, for the term during which the patent is in

force

(a) not to make it or any material derived from it

available to third parties; and

(b) not to use it or any material derived from it except

for experimental purposes, unless the applicant for or

proprietor of the patent, as applicable, expressly waives such

an undertaking.

(6) Where an application is refused or is withdrawn, then at

the applicant’s request, access to the deposited materrial shall be

limited to an independent expert for twenty years from the date on

which the patent application was filed, and in such case the

provisions of subarticle (5) shall apply.

(7) The applicant’s requests referred to in paragraph (b) of

subarticle (4) and in subarticle (6) may only be made up to the

date on which the technical preparations for publishing the patent

application are deemed to have been completed.

(8) If the biological material deposited in accordance with

this article ceases to be available from the recognised depositary

institution, a new deposit of the material shall be permitted on the

same terms as those laid down in the Budapest Treaty.

(9) Any new deposit shall be accompanied by a statement

signed by the depositor certifying that the new deposited biological

material is the same as that originally deposited.”.

For subarticle (2) of article 26 of the principal Act there

shall be substituted the following:-

“(2) The maintenance of a patent shall be subject to the

payment of the prescribed fee hereinafter referred to as the

maintenance fee. Such maintenance fee shall be due in respect of

the fifth year and each subsequent year thereafter calculated from

the filing date of the application and shall be paid on or before the

prescribed due date.”.

For subarticles (3) and (4) of article 27 of the principal Act

there shall be substituted the following subarticles (3) to (10)

“(3) The protection conferred by a patent on biological

material possessing specific characteristics as a result of the

invention shall extend to any biological material derived from that

biological material through propagation or multiplication in an

identical or divergent form and possessing those same

characteristics.

(4) The protection conferred by a patent on a process that

enables a biological material to be produced possessing specific

charactersitics as a result of the invention shall extend to biological

material directly obtained through the process and to any other

biological material derived from the directly obtained biological

material through propagation or multiplication in an identical or

divergent form and possessing those same characteristics.

(5) Save as provided in article 4 (5) (b), the protection

conferred by a patent on a product containing or consisting of

genetic information shall extend to all material, in which the product

is incorporated and in which the genetic information is contained

and performs its function.

(6) Notwithstanding subarticles (1) and (2) hereof, the

proprietor of a patent shall have no right to prevent third parties

from performing the acts referred to in subarticles (1) and (2) (b)

in the following circumstances

(a) where the act is done privately and for non-

commercial purposes, provided that such act does not

significantly prejudice the economic interests of the proprietor

of the patent;

(b) where the act consists of making or using such product

for purely experimental purposes or for scientific research;

(c) where the act consists of the extemporaneous

preparation for individual cases, in a pharmacy or by a medical

or veterinary doctor, of a medicine in accordance with a medical

prescription or of acts concerning the medicine so prepared;

(d) when an act is done for purposes which can reasonably

be related to the development and presentation of information

required by the law of Malta or any other country that regulates

the production, use or sale of medicinal or phytopharmaceutical

products;

(e) when the use of the patented invention is on board

vessels of the countries of the Union of Paris for the protection

of Industrial Property in the body of the vessel, in the

machinery tackle, gear and other accessories, when such

vessels temporarily or accidentally enter the waters of Malta,

provided that the invention is used exclusively for the needs

of the vessel;

(f) when the use of that patented invention is in the

construction or operation of aircraft or land vehicles of

countries of the Union of Paris for the Protection of Industrial

Property or of accessories to such aircraft or land vehicles

when such aircraft or vehicles temporarily or accidentally

enter the territory of Malta.

(7) Nothwithstanding the provisions of subarticles (3), (4)

and (5) of this article

(a) the sale or other form of commercialization of plant

propagation material to a farmer by the holder of the patent or

with his consent for agricultural use implies authorization for the

farmer to use the product of his harvest for propagation or

multiplication by him on his own farm;

(b) the sale of any other form of commercializaion of breeding

stock or other animal reproductive material to a farmer by the holder

of the patent or with his consent implies authorization for the farmer

to use the protected livestock for an agricultural purpose. Such use

includes making the animal or other animal reproductive material

available for the purposes of pursuing his agricultural activity. Such

use does not include the sale within the framework of or for the

purpose of a commerical reproduction activity.

(8) (a) Subject to paragraph (b) hereof, a patent shall also

confer on its proprietor the right to prevent third parties from supplying

or offering to supply a person, other than a party entitled to exploit the

patented invention, with means, relating to an element of that invention,

essential for carrying out the invention, when the third party knows, or

ought to know in the circumstances, that those means are suitable and

intended for carrying out that invention. The provision of this paragraph

shall not apply where such means are staple commercial products and

the circumstances of the supply of such products do not constitute

inducement to infringe the patent.

(b) Persons performing any acts referred to in paragraphs (b),

(c), (d), (e), (f) and (g) of subarticle (6) shall not be considered to be

parties entitled to exploit the invention within the meaning of the

preceding paragraph.

(9) (i) The propagation of a patent shall have no right to

prevent third parties from performing acts referred to in subarticles 1(b)

and 2(b) where the act concerns a product which has been put on the

market by the proprietor of the patent, or with his express consent,

insofar as such as act is performed after that product has been so put on

the market.

(ii) The protection referred to in subarticles (3), (4) and (5) of

this article shall not extend to biological material obtained form the

propagation or multiplication of biological material placed on the market

by the holder of a patent or with his consent where the multiplication or

propagation necessarily results from the application for which the

biological material was maketed

Provided that the material obtained is not subsequently used for

other propagation or multiplication.

(iii) Provided that for the purposes of this subarticle “market”

means the market in Malta and from 1 st May, 2004, the European Union.

(10) The Minister may make regulations giving effect to any

international agreement or obligation entered into by Malta with regard

to matters covered by this article and may by such regulations regulate

the above rights and limitations to reflect the provisions of any such

agreement or obligation.”.

For subarticle (8) of article 39 of the principal Act there Amendment of

article 39 of the

shall be substituted the following subarticles (8) of (12)

principal Act.

“(8) The Civil Court, First Hall, may on a writ of summons

filed by the owner of a patent (the second patent) which cannot be

exploited without infringing an earlier patent (the first patent), direct

the Comptroller to grant a non-exclusive, non-voluntary licence

provided that

(i) the invention claimed in the second patent shall

involved an important technical advance of considerable

economic significance in relation to the invention claimed in

the first patent;

(ii) the owner of the first patent shall be entitled to a

cross-licence on reasonable terms to sue the invention claimed

in the second patent; and

(iii) the use authorised in respect of the first patent shall

be non-assignable except with the assignment of the second

patent.

(9) Where a breeder cannot acquire plant variety protection

or exploit a plant variety without infringing a prior patent, he may

apply to the Civil Court, First Hall, for a compulsory licence for

non-exclusive use of the invention protected by the patent in so far

as the licence is necessary for the exploitation of the plant variety

to be protected, subject to payment of an appropriate royalty. Where

such a licence is granted, the holder of the patent will be entitled

to a cross-licence on reasonable terms to use the protected variety

Provided that an applicant for a licence referred to in above

shall demonstrate that

(a) he had applied unsuccessfully to the holder of the

prior patent to obtain a contractual licence;

(b) the plant variety constitutes significant technical

progress of considerable economic interest compared with

the invention cliamed in the prior patent.

(10) Where the holder of a patent concerning a

biotechnological invention cannot exploit it without infringing a

prior plant variety right, he may apply for a compulsory licence

for non-exclusive use of the plant variety protected by that right,

subject to payment of an appropriate royalty. Where such a licence

is granted, the holder of the variety right will be entitled to a cross-

licence on reasonable terms to use the protected invention

Provided that an applicant for a licence referred to in above

shall demonstrate that

(a) he had applied unsuccessfully to the holder of the

prior plant variety right to obtain a contractual licence;

(b) the invention constitutes significant technical

progress of considerable economic interest compared with

the plant variety protected by the prior plant variety right.

(11) With regard to plant variety protection subarticles (9)

and (10) hereof shall only come into force when the relevant form

of plant variety protection comes into force as provided in article

4 (5) (e).”.

For subarticle (2) of article 61 of the principal Act there Amendment

article 61 of the

shall be substituted the following:-

principal Act.

“(2) Where an applicant does not have his ordinary residence

or principal place of busiess in Malta, he shall authorise in the

prescribed manner an agent who has his ordinary residence or

principal place of business in Malta, to represent him

Provided that this sub-article shall not apply as from the 1 st

May 2003 in respect of an applicant who has his ordinary residence

or principal place of business in any Member State.”.

Immediately at the end of subarticle (5) of article 62 of the Amendment of

article 62

principal Act there shall be added the following proviso:-

of the principal Act.

“Provided further that in the case of a patent which has lapsed

and which was granted under the Industrial Property (Protection

Ordinance)

(i) that patent if restored shall, subject to the payment

of the maintenance fees, enjoy the term of protection stipulated

in this Act from the filing date of the patent application; and

(ii) the provisions contained in article 46 of this Act

shall apply when a request for a restoration is made.”.

Immediately after article 62 of the principal Act there shall Addition of

be added the following new Parts XVIII to XXIV (containing new new

to XXIV to the

articles 63 to 133):–

principal Act.

“Part XVIII

Interpretation

Interpretation

63. (1) In Parts XVIII to XXIV of this Act, unless

the context otherwise requires –

“complex product” means a product which is

composed of multiple replaceable components

permitting disassembly and reassembly of the product;

“Comptroller” means the Comptroller of Industrial

Property and includes any other person appointed or

assigned by the Comptroller to exercise all or any of the

powers and perform all or any of the duties of the

Comptroller;

“European Union” means the European Union

refered to in the Treaty;

“designs” means the appearance of the whole or a

part of a product resulting from the features of, in

particular, the lines, contours, colours, shape, texture and,

or materials of the product itself and, or its ornamentaion;

“Office” means the office responsible for the

registration of designs in Malta under the provisions of

this Act;

“infringement proceedings” in relation to a

registered design, includes proceedings under article 115;

“Locarno Classification” means the Classification

contained in the Locarno Agreement establishing an

International Classificatation for Industrial Designs, as

revised or amended from time to time;

“made available to public” means made available

to the public by the owner of the design or by any other

party;

“Member State” means a state which is a member

of the European Union;

“Minister” means the Minister responsible for the

protection of industrial property;

“Paris Convention” means the Paris Convention for

the Protection of Industrial Property of 20 March 1883,

as revised or amended from time to time;

“prescribed” means prescribed by this Act or by

any regulations made thereunder;

“product” means any industrial or handicraft item,

other than a computer program, including inter alia

intended to be assembled into a complex product,

packaging, get-up, graphic symbols and typographic

typefaces;

“publish” means make avialable to the public, and

references to publication in relation to registration, are

to publication under article 95(4);

“register” means the register of designs kept under

this Act and includes the register of designs kept under

the Industrial Property (Protection) Ordinance;

“The Treaty” has the same meaning assigned to it

by the European Union Act, 2003.

(2) The provisions of Parts II to XVII of this Act do

not apply to designs which are regulated by Parts XVIII to

XXIV of this Act exclusively.

Part XIX

Registrability

64. A registered design is a property right obtained by

the registraion of the design uder this Act. The proprietor of

a registered design has the rights and remedies provided by

this Act.

Requirements

65. (1) Designs shall be protected by registration, and

for protection.

exclusive rights shall be conferred upon their holders in

accordance with the provisions of this Act.

(2) A design shall be protected by a design right

to the extent that it is new and has individual character.

(3) A design applied to or incorporated in a

product which constitutes a component part of a complex

product shall only be considered to be new and to have

individual character

(a) if the component part, once it has been

incorporated into the complex product, remains visible

during normal use of the latter, and

(b) to the extent that those visible features of the

component part fulfil in themselves the requirements as

to novelty and individual character.

(4) The expression “normal use” within the

meaning of subarticle (3) (a) means use by the end user,

excluding maintenance, servicing or repair work.

66. A design shall be considered new if no identical

design has been made available to the public before the date

of filing of the application for registration or, if priority is

claimed, the date of priority

Provided that designs whose features differ only in

immaterial details shall also be deemed to be identical.

67. (1) A design shall be considered to have

individual character if the overall impression it produces on

the informed user differs from the overall impression produced

on such a user by any design which has been made available

to the public before the date of filing of the application for

registration or, if priority is claimed, the date of priority.

(2) In assessing individual character, the degree

of freedom of the designer in developing the design shall be

taken into consideration.

68. (1) For the purpose of applying articles 66 and

67, a design shall be deemed to have been made available to

the public if it has been published following registration or

otherwise, or exhibited, used in trade or otherwise disclosed,

except where these events could not reasonably have become

known in the normal course of business to the circles

specialised in the sector concerned, and as from the 1st May,

2004, within the European Union before the date of filing of

the application for registration or, if priority is cliamed, the

date of priority. The design shall not, however, be deemed to

have been made available to the public becuase of the sole

reason that it has been disclosed to a third party under explicit

conditions of confidentiality.

(2) A disclosure shall not be taken into

consideration for the purpose of applying articles 66 and 67

if a design for which protection is claimed has been made

available to the public by the designer, his successor in title,

or a third party as a result of information provided or action

taken by the designer, or his successor in title and such

disclosure took place during the 12-month period preceding

the date of filing of the application or, if priority is claimed,

the date of priority.

(3) Subarticle (2) shall also apply if the design

had been made available to the public as a consequence of an

abuse in relation to the designer or his successor in title.

69. (1) A right in a registered design shall not subsist

in features of appearance of a product which are solely dictated

by its technical function.

function and

(2) A right in a registered design shall not subsist

connections.

in features of appearance of a product which must necessarily

be reproduced in their exact form and dimensions in order to

permit the product in which the design is incorporated or to

which it is aplied to be mechanically connected to or placed

in, around or against another product so that either product

may perform its function.

(3) Notwithstanding subarticle (2), a right in a

registered design shall, under the conditions set out in articles

66 and 67, subsist in a design serving the purpose of allowing

multiple assembly or connection of mutually interchangeable

products within a modular system.

70. A right in a registered design shall not subsist in a

design which is contrary to public policy or to accepted

principles of morality.

71. (1) The scope of the protection conferred by a

right in a registered design shall include any design which

does not produce on the informed user a different overall

impression.

(2) In assessing the scope of protection, the degree

of freedom of the designer in developing his design shall be

taken into consideration.

72. (1) Upon registration, a design which meets the

requirements of article 65 (2) shall be protected by a design right

for a period of five years from the date of filing of the application.

(2) The right holder may have the term of

protection renewed in accordance with article 73 for one or

more periods of five years each, up to a total term of 25 years

form the date of filing.

73 (1) The registration of a design may by renewed

at the request of the proprietor, subject to the payment of the

prescribed renewal fee

Provided that the request is made and the fee is paid

before the date of expiry and such action be taken not more

than 6 months before such date

Provided that the request may be made and the fee paid up

to 6 months after the date of expiry, in which case any additional

renewal fee as may be prescribed is also paid within that period.

(2) Renewal shall take effect from the expiry of

the previous registration.

(3) If the regisration is not renewede in

accordance with the above provisions, the Comptroller shall

remove the design from the register.

74. A design shall be refused registration

(a) if the design does not fall within the defintion

of a design in article 63;

(b) if it consists of or is significantly made up of

the national flag or Malta;

(c) if it containes a representation of the national

flag of Malta and it appears to the Comptroller to be

misleading or offensive;

(d) if it consists of or contains

(i) the arms, or any of the principal armorial

bearings of the arms appertaining to the President

or to the Roman Catholic Archbishop of Malta, or

any insignia or device so nearly resembling such

arms or any such armorial bearing as to be likely to

be mistaken for them or it,

(ii) a representation of the Presidentail or

Episcopal flags,

(iii) a representation of the President or the

Archbishop, or any colourable imitation thereof, or

(iv) words, letters or devices likely to lead

persons to think that the applicant either has or

recently has had Presidential or Episcopal patronage

or authorisation,

unless it appears to the Comptroller that consent has been

given by or on behalf of the President or the Archbishop;

(e) if it is contrary to public policy or accepted

principles of morality; or

(f) if the applicant for the right in a registered

design is not entitled to it under Maltese law.

75. (1) The registration of a design shall confer

on its holder the exclusvie right to use it and to prevent

conferred by

any third party not having his consent from using it. The

aforementioned use shall cover, in particular, the making,

offering, putting on the market, importation, export or

use of a product in which the design is incorporated or to

which it is applied, or stocking such a product for such

purposes.

(2) Any reference in this Act to the

infringement of a registered design shall be deemed to be

a reference to any such infringement of the rights of the

proprietor.

(3) The rights of the proprietor have effect from

the date of registration reckoned in accordance with article

95 (3)

Provided that –

(a) no infringement proceedings may be begun

before the date on which the design is in fact registered,

and

(b) no offence under article 117 shall be

committed by anything done before the date of

publication of the registration.

76. (1) The rights conferred by the design right upon

registration shall not be exercised in respect of

conferred by

(a) acts done privately and for non-commercial

purposes, or

(b) acts done for experimental purposes, or

(c) acts of reproduction for the purposes of

making citations or of teaching, provided that such acts

are compatible with fair trade practice and do not unduly

prejudice the normal exploitation of the design, and that

mention is made of the source.

(2) In addition, the right conferred by a design

right upon registration shall not be exercised in respect of

(a) the equipment on ships and aircraft registered

in another coutnry when these temporarily or accidentally

enter the territory of Malta, or

(b) the importation into Malta of spare parts and

accessories for the purpose of repairing such craft, or

(c)

the execution of repairs on such craft.

77. (1) A registered design shall not entitle the

proprietor to prohibit the use of a product in which the design

is incorporated or to which the design is applied when the

product has been put on the market by the proprietor or with

his consent

(2) For the purposes of this article

“the market” means the market in Malta and as from

1 st May 2003, the market in another member state.

“use” includes the offering, selling, buying or export

of the proudct; and

Relationship

78. (1) The provisions of Parts XVIII to XXIV of

this

Act

shall be without prejudice to any other provisions of

of protection.

Maltese law relating to unregistered design rights, trade marks

or other distinctive signs, patents and utility models, typefaces,

civil liability or unfair competition.

(2) A design protected by a design right registered

in accordance with this Act shall also be eligible for protection

under the Copyright Act, as from the date on which the design

was created or fixed in any form.

79. A registered design is the personal property of its

owner.

80. (1) Where a registered design is granted to two

or more persons jointly, each of them is entitled, subject to

any agreement to the contrary, to an equal undivided share in

the registered design.

(2) The following provisions apply where two or

more persons are co-proprietors of a registered design, by

virtue of subarticle (1) or otherwise.

(3) Subject to any agreement to the contrary, each

co-proprietor is entitled, personally or through his agents, to

do for his own benefit and without the consent of or the need

to account to any other co-proprietor, any act which would

otherwise amount to an infringement of the registered design.

(4) Notwithstanding the provisions of subarticle

(3) a co-proprietor may not without the consent of the other

or others-

(a)

grant a licence to use the registered design, or

(b) assign or cede control of his share in the

registered design.

(5) Infringement proceedings may be brought by

any co-proprietor, but a co-proprietor may not, with the leave

of the Court, proceed with the action unless the other, or each

of the other co-proprietors, is joined in the suit.

A co-proprietor who is thus joined in the suit shall not

be liable for any costs in the action.

Nothing in this subarticle affects the making of any

precautionary warrant on the application of a single co-

proprietor.

(6) Nothing in this article affects the rights and

obligations of trustees or personal representatives, or their

rights and obligations as such.

81. (1) A registered design is tranmissible by

Transmission

assignment,

testmentary disposition or peration of law in the

same way as other personal or moveable property.

It is so transmissible either in connection with the

goodwill of a business or independently.

(2) An assignment or other transmission of a

registered design may be partial and limited so as to apply in

relation to the use of the design in a particular manner or a

particular locality.

(3) An assignment of a registered design is not

effective unless it is in writing signed by or on behalf of the

assignor or, as the case may be, his personal representative.

(4) Nothing in this Act shall be construed as affecting

the assignment or other transmission of an unregistered design

as part of the goodwill of a busines.

82. (1) On application being made to the Comptroller

Registrations

by a person cliaming to be entitled to an interest in or under a

registered design by virtue of a registrable transaction, or any

other person claiming to be affected by such a transaction,

the relevant details of the transaction shall be entered in the

register.

(2) The following are registrable transactions

(a) an assignment of a registered design or any

right therein;

(b) the grant of a licence under a registered design;

(c) the transfer of a registered design by

testamentary disposition;

(d) an order of a Court or other competent

authority transferring a registered design or any right in

or under it.

(3) Until an application has been made for

registration of a registrable transaction

(a) the transaction is ineffective as against a

person acquiring in good faith a conflicting interest in

the registered design, and

(b) articles 86 or 87 shall not apply in respect of

a person claiming to be a licensee by virtue of the

transaction.

(4) Where a person becomes the proprietor or a

licensee of a registered design by virtue of a registrable

transaction, he shall not be entitled to damages or an account

of profits in respect of any infringement of the registered

design occurring after the date of the registrable transaction

and before the transaction is registered, unless

(a) an application for registration of the

transaction is made before the end of the period of six

months beginning with the date of the transaction, or

(b) the Court is satisfied that it was not practicable

for such an application to be made before the end of that

period and that an application was made as soon as

possible thereafter.

83. The provisions of articles 79 to 82 apply mutats

mutandis in relation to an application for the registration of a

design in the same manner as they apply in relation to a

registered design.

84. (1) A licence to use a registered design may be

general or limited. A limited licence may, in particular, apply

in relation to use of the design in a particular manner or a

particular locality.

(2) Unless the licence provides otherwise, it is

binding on a successor in title to the grantor’s interest, and

references in this Act to doing anything with, or without, the

consent of the proprietor of a registered design shall be

constured accordingly.

(3) Where the licence so provides, a sub-licence

may be granted by the licensee; and references in this Act to

a licence or licensee inlcude a sub-licence or sub-licensee.

85. (1) In Parts XVIII to XXIV of this Act an

“exclusive licence” means a licence (whether general or

limited) authorising the licensee to the exclusions of all other

persons, including the person granting the licence, to use a

registered design in the manner authorised by the licence.

(2) An exclusive licensee has the same rights

agaisnt a successor in title who is bound by the licence as he

has against the person granting the licence.

86. (1) The provisions of this article shall apply with

respect

to the rights of a licensee in relation to infringement

of a registered design

infringement.

Provided that they shall not apply where or to the extent

that, in accordance with article 87 (1) an exclusive licensee

has a right to bring proceedings in his own name.

(2) A licensee is entitled, unless his licence

provides otherwise, to call ont he proprietor of the registered

design to take infringement proceedings in respect of any

matter which affects his interests.

(3) If the proprietor refuses to do so, or fails to

do so within two months after being called upon the licensee

may bring proceedings in his own name as if he were the

proprietor.

(4) Where infringement proceedigns are brought

by a licensee by virtue of this article, the proprietor shall be

joined in the suit.

(5) In infringement proceedings brought by the

proprietor of a registered desing any loss suffered or likely to

be suffered by licenses shall be taken into account by the

Court which shall give such directions as it thinks fit with

regard to the disposal and distribution of any sum awarded as

a remedy for the infringement.

87. (1) An exclusive licence may provide that the

licensee shall have, to such extent as may be provided by the

licence, the same rights and remedies in respect or matters

occurring after the grant of the licence as it the licence had

been an assignment.

Where or to the extent that such provision is made,

the licensee shall be entitled, subject to the provisions of the

licence and to the following provisions of this article, to bring

infringement proccedings in his own name against any person

other than the proprietor.

(2) The rights and remedies of an exclusive

licensee are concurrent with those of the proprietor of the

registred design; and references in this Act to the proprietor

of a registered design relating to infringement shall be

construed accordingly.

(3) In an action brought by an exclusive licensee

under this article a defendant may avail himself of any defence

which would have been available to him if the action had

been brought by the proprietor of the registered design.

(4) Where proceedings for infringement of

registered design are brought by the proprietor or by the

exclusive licensee relating to an infringement in respect of

which they have concurrent right of action, the proprietor or,

as the case may be, the exclusive licensee who are not the

plaintiff shall be jointed in the suit.

(5) (a) Where an action for infringement of a

registered design relaitng to an infringement in respect of

which the proprietor and an exclusive licensee have concurrent

right of action is brought-

(i) the Court shall in assessing damages take into

account the terms of the licence, and any pecuniary

remedy already awarded or available to either of them

in respect of the infringment;

(ii) no account of profits shall be ordered to be

made if an award of damages has been made, or an

account of profits has been ordered, in favour or either

of them in respect of the infringement; and

(iii) the Court shall, if an account of profits has

been ordered, apportion subject to any agreement

between the proprietor and the exclusive licensee, the

profits between them as the Court considers just.

(b) The provisions of this subarticle apply whether

action is brought by the proprietor alone, or it is brought by

the proprietor and the exclusive licensee; and if they are not

both parties the Court may give such directions as it deems

fit with regard to the disposal and distribution of any sum

awarded as remedy for the infringement.

(6) The proprietor of a registered design shall

notify any exclusive licensee who has a concurrent right of

action before applying for an order under article 115; and the

Court may on the application of the licensee make such order

under that artricle as ti thinks fit having regard to the terms of

the licensee.

(7) The provisions of subarticles (4) to (6) shall

be without prejudice to any agreement to the contrary between

the exclusive licensee and the proprietor.

Part XX

Applications

88. An application for registration of a design shall be

filed with the Comptroller in the Maltese or English language

and shall contain the following

(a)

a request for registration of a design;

(b) the name and address of the applicant;

(c) the design which is the subject of the

application;

(d) the name and address of the agent or

representative, in cases where one has been appointed;

and

(e) a declaration cliaming priority in cases where

the applicant wishes to take advantage of an earlier

application.

The application shall be subject to the payment of a fee

as may be prescribed.

89. (1) The date of filing of an application for

Date of filing

registration of a design is the date on which the elements

prescribed in article 88 are furnished to the Comptroller by

the applicant

Provided that where the elements are furnished on

different days, the date of filing shall be the date on which

the last element is so furnished.

(2) References in Parts XVIII to XXIV to the

date of application for registration shall be construed as a

reference to the date of filing of the application.

90. (1) Designs shall be classified for the purpose of

Classification

the registration of designs according to the Locarno

Classification.

(2) Any question arising as to the class within

which any design falls shall be determined by the Comptroller,

whose decision shall be final.

91. (1) A person who has duly filed an application

for protection of a design in a state which is a member of the

World Trade Organisation or a party to the Paris Convention,

hereinafter in this Act referred to as a “Convention

application”, or his successor in title, has a right to priority,

for the purposes of registering the same design under this Act

for which such an application has been filed, for a period of

six months from the date of filing of the first such application.

(2) If the application for registration under this

Act is made within such six-month period

(a) the relevant date for the purposes of

establishing which rights take precedence shall be the

date of filing of the first Convention application, and

(b) the registrability of the design shall not be

affected by any use of the same in Malta in the period

between that date and the date of the application under

this Act.

(3) (a) Any filing in a state member of the World

Trade Organisation or party to the Paris Convention

which is equivalent to a regular national filing under its

domestic legislation, shall be treated as giving rise to

the right of priority.

(b) For the purposes of this subarticle “regular

national filing” means a filing which is adequate to

establish the date on which the application was filed in

that country, whatever may be the subsequent

application.

(4) A subsequent application concerning the same

design as the first Convention application, filed in the same

Convention country, shall be considered the first Convention

application (the filing date of which is the starting date of the

period of priority), if at the time of the subsequent application

(a) the previous application has been withdrawn,

abandoned or refused, without having been laid open to

public inspection and without leaving any rights

outstanding, and

(b) it has not yet served as a basis for claiming

right of priority, and the previous application may not

thereafter serve as a basis for claiming a right of priority.

(5) Provisions may be made by regulations as to

the manner of claiming a right to priority on the basis of a

Convention application.

(6) A right to priority arising as a result of a

Convention application may be assigned or otherwise

transmitted, either with the application or independently.

92. (1) The Minister may make regulations

conferring on a person who has duly filed an application for

protection of a design in a country or territory in relation to

which the Government of Malta is a party to a treaty,

applications.

convention, arrangement or engagement for the reciprocal

protection of designs, a right to priority, for the purpose of

registering the same designs under this Act for any or all of

the same goods or services, for a such period as may be

specified in the regulations from the date of filing of that

application.

(2) Such regulations may make provisions similar

to those contained in article 91 in relation to Convention

applications or such other provision as appears to the Minister

to be appropriate for the purpose of giving effect to the treaty,

convention arrangement or engagement.

Examination

93. (1) The Comptroller shall examine whether an

application for registration of a design satisfies the

requirements of this Act.

(2) If it appears to the Comptroller that the

requirements for registration are not met, he shall inform the

applicant and give him an opportunity to make representations

or to amend the application within such period as the

Comptroller may specify.

(3) If the applicant fails to satisfy the Comptroller

that those requirements are met, or to amend the application

so as to meet them, or fails to respond before the end of the

specified period, the Comptroller shall refuse the application.

(4) If it appears to the Comptroller that the

requirements for registration are met, he shall accept the

application as eligible for registration.

94. (1) The applicant may at any time withdraw his

applicaton.

(2) An application may be amended, at the request

of the applicant, only by correcting

(a)

the name or addres of the applicant,

(b) errors of wording or of copying, or

(c)

obvious mistakes,

and then only where the correction does not substantially affect

the identity of the design.

95. (1) Where an application has been accepted as

eligible for registration, the Comptroller shall register the

design, unless it appears to him having regard to matters

coming to his notice after he accepts the application that it

was accepted in error.

(2) A design shall not be registered and the

application shall be deemed to be withdrawn unless any fee

prescribed is paid within 30 working days from the date of

filing.

(3) A design when registered shall be registered

as of the date of filing of the application for registraion, and

that date shall be deemed for the purposes of this Act to be

the date of registration.

(4) On the registraton of a design the Comptroller

shall issue to the applicant a certificate of registration, and he

shall publish in the Gazette the fact that the design has been

registered and is available to be viewed by the public at the

Office.

Alteration of

96. (1) A registered design shall not be altered in the

register, during the period of registration or on renewal.

(2) Notwithstanding the provisions of subarticle

(1), the Comptroller may, at the request of the proprietor, allow

the alteration of a registered design where the design includes

the proprietor’s name or address and the alteration is limited

to the alteration of that name or address and does not

substantially affect the identity of the design.

(3) Provision shall be made by regulations

prescribing the manner of publication of any such alteration

and the making of objections by any person claiming to be

affected thereby.

97. (1) A registered design may be surrendered by

proprietor

by sending notice to the Comptroller including

the name and address of any person having a contractual

interest in the design, or any other interest under the Act. The

proprietor shall also certify that any such person

(a) has been sent not less than 90 days’ notice of

the proprietor’s intention to surrender the design, or

(b) is not affected, or if affected consents thereto.

98. (1) The registration of design may be declared

of registration. invalid on the following grounds

(a) if the provisions of article 74 have not been

complied with;

(b) if it does not fulfill the requirements of articles

65 to 70;

(c) if the design is the same or similar to a prior

design which has been made vailable to the public after

the date of filing of the application or, if priority is

cliamed, after the date of priority, and which prior design

is protected from adate prior to the said date by a

registered design or an applciation for a registered design

in a territory covered by an international agreement to

which Malta is a party;

(d) if a distinctive sign is used in a subsequent

design and the rightholder of the sign has the right ot

prohibit such use;

(e) if the design constitutes an unauthorised use

of work protected under copyright;

(f)

if the design involved the use of

(i) the armorial bearings, flags or other

emblems, and

(ii) the abbreviations and names, of

international intergovernmental organisations of

which one or more Paris Convention countries are

members.

(2) The grounds provided under article 74 (f) may

be invoked only by the person entitled to the right under

Maltese law.

(3) The grounds in subarticles (1) (c), (1) (d) and

(1) (e) above may be invoked solely by the applicant for or

the holder of the conflicting right.

(4) The grounds in subarticle (1) (f) above may

be invoked solely by the entity associated therewith.

(5) When a design has been refused registration

pursuant to article 74, or a design right has been declared

invalid pursuant to subarticle (1) above, the design may be

registered or the design right maintained in an amended form,

if in that form it complies with the requirements for protection

and the identity of the design is retained. Registration or

maintenance in an amended form may include registration

accompanied by a partial disclaimer by the holder of the right

in the registered design or entry in the design register of a

court decision declaring the partial invalidity of the design

right.

Acts of agent

99. (1) The following provisions apply where an

Representative. application for registration of a design is made by a person

who is an agent or representative of a person who is the

proprietor of the design in a Convention country.

(2) The proprietor may by writ of summons before

the First Hall of the Civil Court

(a) demand a declaration of invalidity of the

registration, or

(b) demand the rectification of the register in order

ot substitute his name as the prorietor of the register

design.

(3) The proprietor may restrain any use of the

design in Malta which is not authorised by him.

(4) Subarticles (2) and (3) shall not apply if, or to

the extent that, the agent or representative shows that his

actions were authorised by the proprietor.

(5) An application under subarticle (2) must be

made within three years of the proprietor becoming aware of

the registration; and no order may be made under subarticle

(3) in respect of a use in which the proprietor has not taken

action for a continuous period of three years or more.

100. (1) An action for invalidity may not be initiated

acquiescence.

when the person bringing the action being aware of the use of

a registered design in Malta has acquiesced for a continuous

perid of five years to such use.

(2) In the case referred to in subarticle (1), where

the action is brought on the basis of an earlier registered design

or an earier acquired right the proprietor of the registered

design is not entitled to oppose the use of the earlier design

or, as the case may be, the exploitation of the earlier right,

notwithstanding that the earlier design or right may no longer

be invoked against his registered design.

Part XXI

Administrative and Supplementary Provisions

Maintenance

101. (1) (a)

The Comptroller shall maintain a

register of designs.

(b) Reference in Parts XVIII to XXIV this Act to “ the

register” are to that register; and references to registration, in

particular, in the expression “registered design”, are, unless

the context otherwise requires, to registration in that register.

(2) There shall be entered in the register in

accordance with this Act

A

(a)

registerd designs;

(b) the relevant particulars of registable

transactions affecting a registered design, including

(i) the date of registration as determined in

accordance subarticles 89 and 95,

(ii) the priority date (if any) to be accorded

pursuant to a claim to a right to priority made under

article 91 or 92,

(iii)

the name and address of the proprietor,

and

(c)

in the case of an assignment of a registered

design

(i) the name and address of the assignee, and

(ii) the date of the assignment;

(d) in the case of the grant of a licence under a

registered design

(i)

the name and address of the licensee,

(ii) where the licence is limited, a description

of the limitation,

(iii) where the licence is an exclusive licence,

that fact,

(iv) the duration of the licence if the same is

or is ascertainable as a definite period, and

(v) the date on which the entry is made;

(e) in the case of a court or other competent

authority transferring a registered design

(i)

the name and address of the transferee,

(ii) the date of the order, and

(iii)

the date on which the entry is made;

(f) in the case of a transfer of a registered design

by testamentary disposition, or otherwise by inheritance

(i) the name and address of the person in

whose favour the testamentary disposition is made,

or the inheritance devolves if any, and

(ii) the date of the testamenary disposition

if any, and of the death of the previous holder,

(g) in the case of merger, the requirements

specified for the registration of an assignement; and

(h) such other matters relating to registered

designs as the Comptroller may deem necessary.

102. (1) Without prejudice to the provision of article

105, the register shall be open for public inspection at the

Office during such hours as may be determined by the Office.

(2) A search in the register may be conducted

in respect of a design or designs in one of the following

manners

(a) an interested person may on payment of the

prescribed fee call at the Office and conduct a search for

a design or designs. If the person or persons conducting

the search request copies of any related record, extracts

from the register or copies of the design, whether certified

or uncertified, these shall be provided on payment of

the prescribed fee;

(b) an interested person may on payment of the

prescribed fee submit a request in writing to the Office

for a search to be conducted in respect of a design or

designs. If the person or persons requesting the search

require copies of any related record, extracts from the

register or copies of the design, whether certified or

uncertified, these shall be provided on payment of the

prescribed fee.

103. (1) Any person having a sufficient interest may

apply for the recitification of an error or omission in the

register

Provided that an application for rectification may

not be made in respect of a matter affecting the validity of the

registration of a design.

(2) Provided that an application for rectification

may not be made either to the Comptroller or by writ of

summons agaisnt the Comptroller and any person interested

before the Civil Court, First Hall

Provided that if proceedings concerning the

registration in question are pending before a Court:-

(a) the application must be made by application

before Court in the acts of the proceedings; and

(b) if the application is made to the Comptroller,

he may at any stage of the proceedings direct the

applicant to refer the matter to the Court in accordance

with subarticle (2).

(3) Except where the Comptroller or the Court

directs otherwise, the effect rectification of the register is that

the error or omission inquestion shall be deemed never to

have been made.

(4) The Comptroller may, on request by the

proprietor of a registered design, or a licensee, enter any

change in his name or address as recorded in the register.

(5) The Comptroller may remove from the

register any matter appearing to him to have ceased to have

effect.

104. The Comptroller may require the use of such

forms as he may direct for any purpose relating to the

registration of a design or anyother proceeding before him

under this Act.

105. (1) After publication of the registration of a

design, the Comptroller shall on request provide a person with

such information and permit him to inspect all documents

filed or kept at the Office relating to the registered design, as

maybe specified in the request.

Any such request must be accompanied by such fee as

may be prescribed.

(2) Before publication of registration of a

design, documents or information constituting or relating to

the application shall not be published by the Comptroller or

made available to the pubic except with the consent of the

applicant.

(3) The Comptroller shall not be obliged to

permit the inspection of any such document as is mentioned

in subarticle (1) above until he has completed any procedure

or the stage in the procedure which is relevant to the document

in question, which he is required or permitted to carry out

under the Act.

(4) The right of inspection under subartilce (1)

above does not apply to

(a) any document until fourteen days after it

has been filed at the Office;

(b) any document prepared in the Office solely

for use therein;

(c) any document sent to the Office, whether at

its request or otherwise, for inspection and subsequent

return to the sender;

(d) any request for information under this article;

(e) any document issued or received by the Office

which Comptroller considers should be treated as

confidential;

(f) any document or part of a document which in

the opinion of the Comptroller dispargaes any person in

a way likely to damage him; or

(g) any document filed with or sent to the Office

before the enactment of the Act.

Exclusion or

106. (1) Registration by the Comptroller shall not be

deemed to be a warrantly by him of the validity of the

registration of a design under this Act or under any treaty,

convention, arrangement or engagement to which Malta is a

party.

(2) The Comptroller shall not be liable by

reason of, or in connection with, any examination required or

authorised by this Act, or any such treaty, convention,

arrangement or engagement, or any report or other

proceedings consequent to such examination.

(3) No action shall lie against an officer of the

Comptroller in respect of any matter for which, by virtue of

this article, the Comptroller is not liable.

107. In all legal proceedings relating to a registered

design (including proceedings for rectification of the register)

the registration of a person as proprietor of a design shall be

prima facie evidence of the validity of the original registration

and of any subsequent assignment or other transmission

thereof.

Certification

108. If in proceedings before the Court the validity of

the registration of a design is contested and it is found by the

Court that the design is validly registered, the Court shall

give judgement accordingly.

Comptroller’s

109. (1)

In proceedings before the Court involving

Appearance in

a

demand

for

(a)

the revocation of the registration of a design,

(b) a declaration of the invalidity of the

registration of a design, or

(c)

the rectification of the register,

the Comptroller shall be notified with the proccedings and

shall be entitled to intervene in statu et terminis.

(2) Unless otherwise directed by the Court, the

Comptroller may, instead of intervening, file in the record of

the case a statement in writing signed by him, giving

particulars of

(a) any proceedings before him in relation to the

matter in issue,

(b) the grounds of any decision given by him

affecting it,

(c)

the practice of the Office in like cases, or

(d) such matters relevant to the issues and within

his knowledge as he thinks fit,

and the statement shall be deemed to form part of the evidence

in the proceedings.

Appeals from

110. (1) Any decision of the Comptroller under Parts

XVIII

to XXIV of this Act, may be appealed from, before the

Comptroller’s

Court of Appeal composed in the manner provided in

subarticle (6) of article 41 of the Code of Organization and

Civil Procedure by application within fifteen days of service

of the Comptroller’s decision.

(2) For the purposes of subarticle (1) of this

article “decision” means any act, other than such acts as may

by regulations be prescribed, done by the Comptroller in

exercise of a discretion vestred in him by or under this Act.

(3) The Minister with the concurrence of the

Minister responsible for Justice may make rules governing

appeals to the Court of Appeal under Parts XVIII to XXIV of

this Act, and presenting a scale of costs and fees in realtion to

such appeals.

111. (1) The Comptroller may give directions

specifying the hours of business of the Office for the purpose

of the transaction by the public of business under this Act,

and the days which are business days for that purpose.

(2) Business done on any business day after the

specified hours of business, or on a day which is not a business

day, shall be deemed to have been done on the next business

day; and where the time for doing anything under this Act

expires on a day which not a business day, that time shall be

extended to the next business day.

(3) Directions under this article may make

different provision for different classes of business and shall

be published in the prescribed manner.

112. (1) Where by Parts XVIII to XXIV of this Act

any act has to be done by or to any person in connection with

any proceeding or matter under the said parts of this Act, the

act may under and in accordance with the regulations be done

by or to an agent of that person duly authorised in writing

Provided that the Comptroller may in any particular case

require the personal signature or presence of the agent or the

person authorising him to act as an agent.

(2) If an applicant does not have his ordinary

residence or principal place or business in Malta, he shall

authorise an agent who has his ordinary residence or principal

place of business in Malta to represent him in the manner as

prescribed in subarticle (1) above

Provided that this subarticle shall as from the 1 st May

2004 with regard to an applicant who has his ordinary

residence or principal place of business in a Member State.

Part XXII

Infringement

113. (1) Any person who in contravention to article

infringement

75 exploits a registered design shall be liable in damages

towards the proprietor of the design right or the licensee.

(2) Infringement proceedings shall be brought

before the Civil Court, First Hall, and may not be instituted

after five years from the date when the injured party has

obtained knowledge of the infringement and of the identity

of the alleged infringer.

(3) In an action for infringement all such remedies

as are in respect of the infringement of any other property

right shall be available to the plaintiff.

114. (1) The Court may, moreover, on the demand

of the plaintiff, order that the machinery or other industrial

means or contrivances used in contravention of the design,

the infringing products, and the apparatus destined for their

production, be forfeited, wholly or partially, and delivered

up to the proprietor of the design or such other person as the

Court may direct, without prejudice to any other remedy.

(2) An action for an order under subarticle (1)

hereof may not be made after the end of the period of five

years from the date on which the infringing products were

made except as provided in the following subarticle.

(3) While during the whole or part of that

period the proprietor of the registered design is prevented by

fraud or concealment from discoverning the facts entitling

him to take action for an order, an application may be made

at any time before the end of the period of five years from the

date on which he could with reasonable diligence have

discovered those facts.

115. (1) Where infringing goods, material or

products have been delivered up in pursuance of an order

under article 114, an action by writ of summons against any

person having an interest in the products may be brought

before the Court by any party interested

(a) for an order that they be destroyed or

forfeited to such person as the Court may deem fit, or

(b) for a decision that no such order should be

made.

(2) In considering its decision, the Court shall

consider whether other remedies available in an action for

infringement of the registered design would be adequate to

compensate the proprietor and any licensee to protect their

interests.

(3)

Any person having an interest shall be

entitled

(a) to appear in proceedings for an order under

this article, whether or not he was served with a notice,

and

(b) to appeal against any order made, whether or

not he appeared at first instance, and any such order shall

not take effect until the end of the period within which

an appeal may be filed or, if before the end of that period

an appeal is so filed, until the final determination or

abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in

the products, the Court shall make such order as it thinks fit.

(5) If the Court decides that no order should be made

under this article, the perosn in whose possession, custody or

control the products were before being delivered up shall be

entitled to their return.

116. (1) Where a person threatens another with

proceedings for infringement of a registered design other than

those provided for in this Act, any person aggrieved may bring

infringement

proceedings for relief under this article by writ of summons

proceedings.

before the Civil Court, First Hall.

(2) The relief which may be applied for is all

or any of the following

(a)

a declaration that the threats are unjustified,

(b) an injunction against the continuance of the

threats,

(c) damages in respect of any loss the plaintiff

may have sustained by the threats,

and the plaintiff shall be entitled to such relief unless the

defendant shows that the acts in respect of which proceedings

were threatened constitute, or if done would constitute, an

infringement of the registered design concerned.

(3) Where the defendant shows that the acts in

respect of which proceedings were threatened constitute or

would constitute an infringement of the registered design, the

plaintiff shall nevertheless be entitled to relief if he shows

that the registration of the design is invalid or liable to be

revoked.

(4) The mere notification that a design is

registered, or that an application for registration has been

made, does not constitute a threat of proceedings for the

purposes of this article.

(1) Any person who with a view to gain for

Unauthorised

of registered himself or another, or with intent to cause loss to another, and

without the consent of the proprietor, in contravention of

article 75 exploits a registered design shall be guilty of an

offence against this article and shall be liable on conviction

to imprisonment for a term not exceeding three years or to a

fine (multa) of not more than ten thousand liri or to both such

fine and imprisonment.

(2) It shall be a defence for aperson charged

with an offence against this article to show that he believed

on reasonable grounds that the use of the design in the manner

in which it was used, or was to be used, was not an

infringement of the registered design.

Falsification

(1) Any person who knowing or having reason

to believe that it is false

(a) makes, or cuases to be made, a false entry in

the register of designs; or

(b) makes, or causes to be made, anything falsely

purporting to be a copy of an entry in the register, or

(c) produces or tenders or causes to be produced

or tendered in evidence any such thing,

shall be guilty of an offence against this article.

(2) A person guilty of an offence against this

article shall be liable on conviction to imprisonment for a

term not exceeding two years or a fine (multa) of not more

tha five thousand liri or to both such fine and imprisonment.

(1) Whoever puts into circulation, or sells any

product, falsely representing that a design applied to, or

incorporated in any product sold by him is registered, shall

be guilty of an offence against this sub-article and, on

conviction, be liable to a fine (multa) of not less than one

hundred liri and not more than five thousand liri.

For the purposes of this article a person who sells a

product having stamped, engraved or impressed thereon or

otherwise applied thereto the word “registered”, or any other

word expressing or implying that the design applied to the

products is registered, shall be deemed for the purposes of this

article to represent that the design applied to the product is

registered.

(2) Any person, who after the right in a

registered design is expired, marks any product to which

the design has been applied with the word “registered”, or

any word or words implying that there is subsisting right

in the design under this Act, or causes any such product to

be so marked, shall be guilty of an offence against this

subarticle and shall on conviction, be liable to a fine (multa)

not less than one hundred liri and not more than five

thousand liri.

(1) A person shall not without the authority of

Unauthorised

the President use in connection with any business any device,

emblem or title in such a manner as to be calculated to lead to

the belief that he is employed by, or supplies goods or services

to, the President.

(2) Any person who contravenes the provisions

of subarticle (1) of this article shall be guilty of an offence

against this article and shall, on conviction, be liable to a fine

(multa) of not more than three thousand liri.

The Court may, moreover, in the cases referred

to in article 117, on the demand of the prosecution, order that

the machinery or other industrial means or contrivances used

in contravention of the rights of the proprietors of the designs,

the infringing products, and the apparatus destined for their

production, be forfeited, wholly or in part, and delivered to

the holder of the design, without prejudice to any other right

to relief under this Act.

Pending any proceedings for any one of the

offences referred to in this Part, any Magistrate, if he is

satisfied by information on oath that there is reasonable cause

to suspect that any goods or things by means of, or in relation

to which the offence has been committed, are in any house or

premises of the accused, or are in his possession or under his

control in any other place, may, by a warrant under his hand,

direct any officer of the Police to be named in the warrant, to

enter any house, premises or place, also to be named therein,

and there to search for, seize and remove such goods or things.

If the owner of any goods or things, which, if he

were convicted of any of the offences referred to in this Part,

would be liable to forfeiture, is unknown or cannot be found,

any Magistrate may in the like manner and in the

circumstances required in article 122 issue the said warrant.

Forfeiture of

The goods and things so seized shall be produced

before the Court of Magistrates sitting as a court of criminal

judicature, and such Court shall determine whether they are

liable to forfeiture under this Act.

(1) In the case referred to in article 123, the

Court shall order the issue of banns which shall be published

twice, with an interval of at least eight days, in the Gazette,

and posted up at the entrance of the building wherein the Court

sits, and in any other place which the court may deem fit,

stating that the goods or things seized shall be forfeited, unless

at the time and place named in the banns the owner of such

goods or things or other persons interested in such goods or

things attends before the Court at the time and place indicated

in the banns and shows cause to the contrary. The person from

whose possession the goods or things were seized, shall also,

where his whereabouts are known, be notified with the banns.

(2) If the owner or any person on his behalf, or

other person interested in the said goods or things, fails to

attend at the time and place named in the banns to show cause

to the contrary, it shall be lawful for the Court to direct that

such goods or things or any of them be forfeited.

The Court may direct that the goods or things so

compensation

forfeited be destroyed or disposed of, and may also direct

that, out of the net proceeds which may be realized by the

disposal of such goods or things and up to the amount thereof,

any persons who, being in good faith, were injured by the

forfeiture, be awarded compensation for any loss caused to

them.

Criminal actions under this Act shall be barred

by the lapse of three years from the day on which the act

constituting the offence was committed, if the person to whose

prejudice the act was committed, had no previous knowledge

thereof; in all other cases such action shall be barred by the

lapse of one year from the day on which such person became

aware of that act.

The provisions of this Part shall apply without

damages not

prejudice to the right of any person to claim damages in

consequence of any act constituting an offence.

No proceedings shall be instituted against any

Employment

person in the service of another person, if, he shows that in

good faith, he acted in obedience to the instructions of his

employer, and, on being questioned by the Police, gives full

information relating to his employer and of the facts of the

case as known to him.

Part XXIII

General Provisions

In any civil proceedings under this Act if a

question arises as to the use to which a registered design has

been put, the burden of proof that a particular use has been

made shall lie on the proprietor.

Civil actions under Parts XVIII to XXIV of this

Act shall be barred by the lapse of five years in all cases in

Civil actions

which no other period within which such actions may be

brought is fixed in this Act.

Part XXIV

Regulations

(1) The Minister may make regulations for the

better administration of Parts XVIII to XXIV of this Act,

making such rules as are required byh any provisions of the

said parts of this Act, prescribing anything authorised or

required by any provision to be prescribed, and generally for

regulating practice and procedure under the said Parts, and in

particular provision may be made

(a) with regard to the interpretation of terms used

in the said Parts of this Act;

(b) with regard to the grant, refusal or surrender

of a registered design;

(c) with regard to the terms of renewal of a

registered design;

(d) with regard to the manner of filing of

applications and other documents as well as all respective

and other fees under the said Parts of this Act;

(e) requiring and regulating the translation of

documents and the filing and authentication of any

translation;

(f)

with regard to the service of documents;

(g) with regard to matters relating to the register

of designs, in particular as to

(i) amendment of registered particulars

relating to a licence so as to reflect any alteration

of the terms of the licence, and

(ii) the removal of such particulars from the

register;

(h) with regard to the classification of registered

designs;

(i) authorising the rectification of irregularities of

procedure;

(j) with regard to procedures, sanctions and

anything else relating to the infringement of the

provisions of the said Parts of this Act;

(k) prescribing time limits for anything required

to be done in connection with any proceeding under the

said Parts of this Act;

(l) providing for the extension of any time limit

so prescribed, or specified by the Comptroller whether

or not the time limit has already expired; and

(m) regulating administrative and other

supplementary provisions.

(2) The Minister may also from time to time make

regulations not inconsistent with the said Parts of this Act

prescribing all matters which byt his Act are required or permitted

to be prescribed or which are necessary or desirable to be

prescribed for carrying out or giving effect to this Act, or for the

conduct of any business relating to the Office of the Comptroller.

(3) The Minister may also make regulations giving

effect in Malta to the provisions of any international or

regional design registration instrument or any related

agreements to which Malta becomes a party.

(1) Subject to the provisions of this article, the

Industrial Property (Protection) Ordinance is hereby repealed.

(2) In this article

“existing registered design” means a design,

registered under the Industrial Property (Protection)

Ordinance immediately before the commencement of

Parts XVIII to XXIV of this Act.

“former register” means the register kept under the

Old Law;

“new register” means the register kept under Parts

XVIII to XXIV of this Act;

“Old Law” means the Industrial Property

(Protection) Ordinance and any other enactment or rule

of law applying to existing registered designs

immediately before the commencement of Parts XVIII

to XXIV of this Act.

(3) For the purposes of this article –

(a) an application shall be treated as pending on the

coming into force of Parts XVIII to XXIV of this Act, if it

was made but not finally determined before such coming

into force; and

(b) the date on which it was made shall be taken to be

the date of filing under the Old Law.

(4) Existing registered designs shall, on the

commencement of this article be transferred to the new register

and subject to the provisions of this article, shall have effect

as if they were registered under Parts XVIII to XXIV of this

Act.

(5) Proceedings under the Old Law which are pending

on the commencement of this article shall be dealt with under

the Old Law and any necessary alteration pursuant to such

proceedings shall be made to the new register.

(6) (a) Upon the coming into force of this article,

articles 75 and 76 of this Act shall apply in relation to, an

existing registered design and subject to paragraph (b) hereof,

article 113 of this Act, shall apply in relation to any

infringement of an existing registered design committed after

the commencement of this article.

(b) After the coming into force of this article, it shall

not be an infringement of

(i)

an existing registered design, or

(ii) a registered design of which the distinctive

elements are the same or substantially the same as those

of an existing registered design,

to continue with any use which did not amount to infringement

of the existing registered design under the Old Law.

(7) Article 114 of this Act shall apply to infringing

goods, material or products whehter made before or after the

commencement of this article.

(8) Article 86 of this Act shall apply to licences granted

before the commencement of this article, but only in relation

to infringement committed after its commencement.

(9) The provisions of article 80 of this Act shall apply

as from the commencement of this article to an existing

registered design of which two or more persons were

immediately before the commencement of this article

registered as joint proprietors.

(10) (a) Article 81 of this Act shall apply to

Assignment,

transactions and events occurring after the commencement

of this article in relation to an existing registered design; and

the Old Law shall continue to apply in relation to transaction

and events occurring before its commencement.

(b) Where, before the commencement of this article a

person become entitled by assignment or transmission to an

existing registered design but has not registrered his title, any

application for registration of an assignment after its

commencement shall be made under article 83 of this Act.

(11) Articles 84 and 85 of this Act shall apply only in

Licensing of

relation to licences granted after the commencement of this article.

(12) An application for registration of a design under

the Old Law which is pending on the commecnement of this

article shall be dealt with under the Old Law, and, when

registered, the design shall be treated for the purposes of this

article as an existing registered design.

(13) (a) In the case of a pending applciation for

registration filed before the commencemnet of this article the

applicant may give notice to the Comptroller demanding to

have the registrability of the mark determined in accordance

with the provisions of Parts XVIII to XXIV of this Act.

(b) The notice must be accompanied by the

appropriate fee and be given no later than six months after

the commencement of this article.

(c) Notice duly given shall be irrevocabale and

shall have the effect that the aplication shall be treated as if

made immediately after the commencement of this article.

(14) The Comptroller may exercise the powers

conferred by this Act to ensure that any existing registered

designs which do not conform to the system of classification

classification.

prescribed under article 90 of this Act are brought in

conformity with such system.

(15) Article 91 of this Act shall apply to an application

for registration under this Act made after the commencement

of this Part notwithstanding that the Convention application

applications.

was made before commencement.

(16) Articles 72 and 73 of this Act shall apply in

Duration and

relation to the registration of a design in pursuance of an

application made after the commencement of this article

Provided that in the case of a design registration under

the Old Law, whose term of protection has not yet expired at

the coming into force of this article registration may be

renewed as provided for in articles 72 and 73 of this Act.”.

Part XXI

117. (1) This Part amends and shall be read and construed as Amendment of

Data Protection

one with the Data Protection Act hereinafter in this Part referred to as Act, Cap 440.

“the principal Act”.

(2) This Part of this Act shall come into force in such date

as the Minister responsible for data protection may by notice in the

Gazette establish.

118. Article 37 of the principal Act shall be renumbered as

subarticle (1) thereof and immediately after the said subarticle (1) as

renumbered there shall be added the following new subarticle

(2) It shall not be lawful for the Commissioner to

“Commissioner

may not hold

carry

out

any other profession, business or trade or to hold

other offices

of profit.

any other office of profit whatsoever, even though of a

Exceptions.

temporary nature, with the exception of any temporary judicial

office on any international court or tribunal or any

international adjudicating body, and the office of examiner at

a University.”.

Part XXII

119. (1) This Part amends and shall be read and construed as

one with the Special Funds (Regulation) Act, hereinafter in this Part

referred to as “the principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for finance and economic affairs may, by notice in

the Gazette, appoint, and different dates may be so established for

different provisions or different purposes of this Act.

120. Immediately after subarticle (4) of article 4 of the principal

Act, there shall be inserted the following new subarticle

“(5) A Scheme or Retirement Fund registered under

this Act shall not be subject to any licensing requirements

under the Investment Services Act.”.

121. Subarticle (1) of article 50 of the principal Act shall be

amended as follows:–

(a) in paragraph (a) thereof, for the words “deems fit;” there

shall be substituted the words “deems fit; and amend the Schedules

to this Act;”; and

(b) in paragraph (b) thereof, for the words “in relation

thereto, providing” there shall be substituted the words “in relation

thereto; establish the qualifications and other eligibility criteria

necessary to act as Retirement Fund Custodian, provide for the

payment of such fees and other charges as may be prescribed,

provide for the powers of the Authority in their regard including

the imposition of administrative penalties and other measures as

well as appeals thereform to the Financial Services Tribunal, and

provide for the issue of Directives establishing other requirements

regarding their conduct and activities; and provide”.

Part XXIII

122. (1) This Part amends and shall be read and construed as Amendment of the

Employment and

one with the Employment and Industrial Relations Act, hereinafter in Industrial Relations

this Part referred to as “the principal Act”.

Act, Cap. 452.

(2) This Part of this Act shall come into force on such date

as the Minister for Social Policy may by notice in the Gazette establish.

123. In subarticle (1) of article 30, for the words “three months” Amendment of

article 30 of the

there shall be substituted the words “four months”.

principal Act.

124. (1) In subarticle (2) of article 38 in the English version, Amendment of

article 38 of the

for the word “or” there shall be substituted the word “and”.

principal Act.

(2) In subarticle (4) of article 38 for the words “This article”

there shall be substituted the words “Subarticles (1) and (3) of this article”.

125. In subarticle (1) of article 48, after the words “Title I” there Amendment of

article 48 of the

shall be inserted the words “and of Title II”.

principal Act.

126. In subarticle (1) of article 84, after the words “government Amendment of

article 84 of the

employees” there shall be inserted the words “unless specifically principal Act.

provided for in terms of subarticle (1) of article 48 of this Act”.

Part XXIV

127. The Criminal Code (Amendment) Act, 2002, hereinafter in Amendment of the

Criminal Code

this article referred to as “the principal law” shall be amended as follows: (Amendment) Act,

2002, Act III of

2002. (a) for paragraph (c) of subarticle (1) which is in article 91

thereof, there shall be substituted the following

“(c)

in all other cases, by the Attorney General.”;

(b) in article 649 which is in article 152 thereof

(i) in subarticles (1) and (2) thereof, for the words

“judicial or prosecuting” wherever they occur there shall be

substituted the words “judicial, prosecuting or administrative”;

(ii) in subarticle (5) thereof, immediately after the

words “the magistrate” there shall be inserted the words “shall

comply with the formalities and procedures indicated by the

requesting foreign authority unless they are contrary to the

fundamental principles of Maltese law and”; and

(iii) immediately after subarticle (5) thereof there shall

be added the following new subarticles

“(6) Where the request of the foreign authority is

for the hearing of a witness or expert by videoconference,

the provisions of subarticles (7) to (12), both inclusive,

shall apply.

(7) The magistrate shall summon the person to

be heard to appear at the time and place equipped with

videoconference facilities appointed for the purpose by

the magistrate. The magistrate shall give effect to any

measures for the protection of the person to be heard

which the Attorney General may declare to have been

agreed upon with the requesting foreign authority.

(8) The magistrate shall conduct the hearing and

where necessary the magistrate shall appoint an

itnerpreter to assit during the hearing. The magistrate

present shall ensure that the person to be heard is

identified and that the proceedings take place and

continue at all times in conformity with the fundamental

principles of the law of Malta.

(9) The person to be heard may claim the right

not to testify which would accrue to him or her under

the law of Malta or under the law of the country of the

requesting foreign authority.

(10) Subject to any measures for the protection

of the person to be heard referred to in subarticle (7), the

magistrate shall on the conclusion of the hearing draw

up minutes indicating the date and place of the hearing,

the identity of the person heard, the identities and

functions of all other persons participating in the hearing,

any oaths taken and the technical conditions under which

the hearing took place. The document containing the

record of the minutes shall be transmitted to the Attorney

General to be forwarded to the requesting foreign

authority.

(11) The following shall mutatis mutandis apply

to the person to be heard under the provisions of

subarticle (6)

(a) the provisions of article 522, where the

person to be heard refuses to testify when required

to do so by the magistrate;

(b) the provisions of articles 104, 105, 107,

108 and 109, as the case may be, where the person

to be heard does not testify to the truth, for this

purpose the proceedings before the foreign authority

shall be deemed to be proceedings taking place in

Malta and the person to be heard shall be deemed

to be a person testifying in those proceedings. For

the purpose of determining the applicable

punishment as may be necessary in proceedings for

perjury under this subarticle the criminal fact being

inquired into or adjudicated by the requesting

foreign authority shall be deemed to be liable to

the punishment to which it would have been liable

had the same fact taken place in Malta or within

the jurisdiction of the same Maltese criminal courts.

(12) The provisions of subarticles (6) to (11), both

inclusive, shall apply where the person to be heard is a

person accused in the country of the requesting foreign

authority provided that the hearing shall only take place

with the consent of the person to be heard and that all

the rules of evidence and procedure which would apply

to the testimony of a person accused in criminal

proceedings in Malta would also apply to the testimony

of the person accused to be heard under this article.

(13) The provisions of this article shall also apply

mutatis mutandis where the request of the foreign

authority is for the hearing of a witness or expert by

telephone conference. provided that the witness or expert

consents to the hearing.”.

Part XXV

128. The Criminal Code, hereinafter in this article referred to as Amendment

of the

“the principal law” shall be amended as follows

Criminal

Code,

(a) in paragraph (a) of subarticle (4) of article 370

thereof, for the words “under sub-article (1) (c)” there

shall be substituted the words “under sub-article (1) (b)”;

(b) article 392A thereof shall be amended as

follows

(i) in subarticle (2) thereof, for the words “as

provided in subarticle (3) of article 401” there shall

be substituted the words “within six working days”;

and

(ii) in the English text only of subarticle (5)

thereof, for the words “in paragraph (b) of article

392” there shall be substituted the words “in

paragraph (b) of subarticle (1) of article 392”;

(c) immediately after article 435D thereof there

shall be added the following new article

435E. (1) Notwithstanding anything contained in any

other

law it shall be lawful for the Attorney General to

investigations authorise the Executive Police and, where appropriate, the

Customs authorities to allow a controlled delivery to take place

authorities of

with a view to identifying persons involved in the commission

of any criminal offence under the laws of Malta or under the

laws of another country.

For the purposes of this subarticle a "controlled delivery"

shall mutatis mutandis have the same meaning assigned to it

by subarticle (2) of article 30B of the Dangerous Drugs

Ordinance sohowever that the illicit or suspect consignment

referred to in that subarticle may for the purposes of this

subarticle consist of anything whatsoever and that the

consignment may be intercepted and allowed to continue with

the original contents intact or removed or replaced in whole

or in part.

(2) With the same objective of identifying persons

involved in the commissions of a criminal offence under the

laws of Malta or under the laws of another country, it shall

also be lawful for the Attorney General to authorise the

Executive Police or a person under the supervision or direction

of the Executive Police, to acquire or procure an illicit or

suspect consignment of anything from any person or place.

(3) Pursuant to any arrangement, including any

treaty, convention, agreement or understanding, to which

Malta is a party or which is otherwise applicable to Malta,

the Attorney General may authorise the competent authorities

of another country to conduct in Malta, jointly with or under

the supervision or direction of the Executive Police,

investigations into criminal investigations by officers acting

under covert or false identity, provided that the Attorney

General is satisfied of the true identity and official capacity

of the officers in question and is fully informed of the nature

of any documents which purport to guarantee, certify or

authenticate the false identity assumed by any such officers.

Notwithstanding the provisions of any other law the making

or use of such documents by the said competent authorities

or by such officers for the purpose or in the course of such

investigations authorised as aforesaid shall be deemed to be

lawful and shall not entail any liability, civil, criminal or

otherwise, on the part of such authorities or officers.

(4) Any official from another country taking part in

any of the operations referred to in subarticles (1) to (3), both

inclusive, shall, for the purpose of any criminal liability

incurred under this Code or any other law by that official or

by others for conduct against that official, be deemed to be a

public officer.”; and

(d) immediately after article 628 thereof, there shall be

inserted the following new title and articles

“Title VIII

Of Mutual Assistance in Criminal Matters.

628A. (1) The Minister responsible for justice may

make regulations to give effect to any arrangement, including

any treaty, convention, agreement or understanding, to which

Malta is a party or is otherwise applicable to Malta and which

makes provision for mutual assistance in criminal matters.

(2) Regulations made under this article may make

provision as the Minister may deem appropriate in the

circumstances, including the application, with any appropriate

modifications, of any of the provisions of this Code or of any

other law.

628B. (1) Without prejudice to the generality of the

power conferred on the Minister by article 628A the Minister

may, in particular, make regulations designating the competent

person, body corporate or unincorporated, authority or agency

for the purpose of providing the assistance that may be

requested under any arrangement referred to in subarticle (1)

of article 628A and prescribing the conditions and procedures

for the execution of any request for such assistance for all or

any of the following purposes –

(a) the questioning of persons being investigated

or prosecuted for a criminal offence;

(b) the taking or production of evidence;

(c)

the service of any document or act;

(d) the interception of communications;

(e) the temporary transfer of a prisoner for the

purposes of identification or for obtaining testimony or

other assistance;

(f) the entry into and search of any premises and

the seizure of any item;

(g) the taking of fingerprints or of intimate or non-

intimate samples;

(h) the exhumation of any body;

(i)

the provision of records and documents;

(j) the investigation of proceeds of criminal

offences;

(k) the monitoring, freezing or seizing of assets

of any kind including bank accounts;

(1) the verification of any evidence or other

material.

(2) Any regulations made under this article and

article 628A shall contain a reference to the arrangement which

those regulations are meant to implement.”.

A

Passed by the House of Representatives at Sitting No. 28 of the 21st July,

2003. A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Clerk to the House of Representatives