ACT No. VII of 2004 An Act to amend various laws relating to communications and to make provision with respect to matters ancillary thereto or connected therewith.

I assent.

E DWARD F ENECH A DAMI

(L.S.)

President

3rd August, 2004

ACT No. VII of 2004

An Act to amend various laws relating to communications and to

make provision with respect to matters ancillary thereto or connected

therewith.

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>

(1) The short title of this Act is Communication Laws Title and

commencement.

(Amendment) Act, 2004.

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

Minister responsible for communications may by notice in the Gazette

appoint, and different dates may be so appointed for different provisions

and different purposes of this Act.

PART I

AMENDMENT OF THE MALTA COMMUNICATIONS

AUTHORITY ACT

(1) This Part amends the Malta Communications Authority Amendment of the

Malta

Act, and it shall be read and construed as one with the Malta Communications

Communications Authority Act, hereinafter in this Part referred to as Authority

Act, Cap. 418.

“the principal Act”.

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

Minister responsible for communications may by notice in the Gazette

appoint and different dates may be so appointed for different provisions

and different purposes thereof.

In the long title of the principal Act, the words

“telecommunications, data protection,” shall be substituted by the words

“electronic communications, certain aspects of data protection in

electronic communications, postal services”.

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

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

shall be inserted the following new definitions>

“ “the Act” means this Act and includes any regulations

made thereunder unless the context otherwise requires<

“Appeals Board” means the Communications Appeals

Board established by article 36 of this Act<”<

(b) in the definition of “Authority” immediately after the

words “article 3 of this Act” there shall be added the words “and

any references in this Act or any other law to the Authority shall,

unless the context otherwise requires, be construed as including a

reference to any person authorised by the Authority to act for or

on its behalf<”<

(c) the definition of “Chief Executive” shall be deleted<

(d) in the definition of “communications”>

(i) for the words “includes telecommunications” there

shall be substituted the words “includes electronic

communications”<

(ii) immediately after the words “data protection” there

shall be added the words “in electronic communications”<

(iii) the words “, internet services,” shall be deleted<

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

be inserted the following new definitions>

“ “decision” includes any determination, direction,

measure, requirement or specification however so described

made by the Authority and the word “decision” shall be

construed accordingly<

“directive” means a directive issued by the Authority in

terms of article 4 of the principal Act<

“Director General” means the Director General

appointed under article 5 of the principal Act<”<

(f) for the definition of “financial year” there shall be

substituted the following>

“ “financial year” means any period of twelve months

ending on the 31st December, so however that the Minister

may, after consultation with the Authority, vary such date<”<

(g) after the definition of “Minister” there shall be inserted

the following new definition>

“ “person” includes any body corporate and any body of

persons whether or not it has a legal personality distinct from

that of its members<”< and

(h) after the definition of “Public Officer” there shall be

inserted the following new definition>

“ “undertaking” means a person providing or authorised

to provide communications networks and, or services and, or

associated facilities.”.

The words “Chief Executive” wherever they occur in the General substitution

in the principal Act.

principal Act shall be substituted by the words “Director General”.

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

Amendment of

article 4 of the

principal Act.

(a) for the marginal note to article 4 there shall be substituted

the following>

“Purpose, functions and powers of the Authority”<

(b) paragraph (r) of subarticle (3) thereof shall be renumbered

as paragraph (s)<

(c) immediately before paragraph (s) of subarticle (3) thereof

as renumbered there shall be added the following new paragraph>

“(r) promote the interests of consumers and other users

in Malta, particularly those who are disabled or of a

pensionable age, especially in respect of the prices charged

for, and the quality and variety of the said services<”<

(d) immediately after subarticle (3) thereof, there shall be

added the following new subarticles>

“(4) It shall be the duty of the Authority to carry out

its functions as established by or under this Act or any other

law in an impartial and transparent manner and to ensure

compliance therewith, and without prejudice to the generality

of the foregoing, to ensure that persons providing any services,

products, operations and activities in or from Malta relating

to any matter regulated by the Authority, comply with this

Act and with any other law which the Authority is entitled to

enforce, and with any directives or decisions issued by or

under this Act or any such other law.

(5) The Authority shall also have such other functions,

responsibilities and powers as are set out by or under this Act

or as may be assigned to it by or under any other law including

all such powers as are necessary for or incidental to the

performance of its functions by or under this Act or any other

law. The Authority shall in the carrying out of its functions

seek to ensure that the measures taken are proportionate having

regard also to the objectives of the Authority.

(6) The Authority may issue such directives as it may

consider to be necessary for the carrying into effect of or

compliance with any of the provisions of this Act, or of any

other law which the Authority is entitled to enforce, or any

decisions that the Authority may make in accordance with its

functions under this Act or any other law and it may amend

or revoke such directives.

(7) Any directive issued by the Authority in accordance

with this article and any amendment or revocation thereof

shall be in writing, state the reasons on which it is based and

shall be notified to the person concerned. The Authority may

also publish any such directive in such manner as it may

consider appropriate in the circumstances due account being

taken of the importance of the directive and its impact on the

market.

(8) The Authority shall, where it considers appropriate,

consult with the various competent authorities responsible

for competition issues and consumer affairs and for such other

areas as may impact on the sectors regulated by the Authority

on matters of common interest in connection with the

application of this Act and of any other law which the

Authority is entitled to enforce.

(9) The Authority on the one hand and the competent

authorities responsible for competition issues and consumer

affairs on the other shall provide each other with the

information necessary for the application of the provisions of

this Act which information shall be provided within an

appropriate timeframe taking into consideration the particular

circumstances of the issues involved. In respect of the

information exchanged, the receiving authority shall ensure

the same level of confidentiality as the originating authority.

(10) Without prejudice to the enforcement powers that

it has at law, the Authority may require any person to provide

it with any information, including financial information, that

the Authority considers necessary for the purpose of ensuring

compliance with the provisions of, or decisions or directives

made in accordance with this Act or any other law which the

Authority is entitled to enforce.

(11) Any information required by the Authority under

subarticle (10) of this article shall be proportionate to the

performance of its functions and obligations under this Act

and in requiring any information as aforesaid, the Authority

shall state why it requires the information requested.

(12) A person who is notified with a requirement under

subarticle (10) of this article shall comply promptly with the

requirement within the timescales and according to any level

of detail as may be required by the Authority>

Provided that any such person shall, in complying with

the provisions of this subarticle, state clearly to the Authority

if any information provided by him is to be considered as

confidential for commercial reasons. In doing so he shall give

his reasons to the Authority. It shall be the Authority which

shall decide whether the information indicated to it as being

confidential should be so treated>

Provided further that the provisions of this subarticle

relating to confidentiality shall apply to any information

provided to the Authority for whatever reason whether under

this Act or any other law the Authority is entitled to enforce.

(13) Any person who fails or refuses to comply with a

requirement under subarticle (10) of this article shall commit

an infringement of this Act and shall be liable to the imposition

of an administrative fine by the Authority not exceeding the

sum of five thousand liri and, or one hundred liri for each day

during which failure to comply persists.

(14) The Authority shall, subject to the protection of

any information which it considers confidential, publish from

time to time such information as would, in the opinion of the

Authority, contribute to an open and competitive market.”.

In article 30 of the principal Act immediately after the words

“functions of the Authority” there shall be added the words “and the

Minister may, in compliance with any international obligations of Malta,

make any regulations relating to the imposition of any fees, rates or

other payments however so described that the Authority may levy and

in particular may prescribe the manner and the purpose for their

Part VII of the principal Act shall be renumbered as Part IX

and articles 29 and 30 shall be renumbered as articles 43 and 44

respectively, article 31 shall be deleted and immediately after Part VI

of the principal Act there shall be added the following new Part VII and

“PART VII – ENFORCEMENT AND SANCTIONS

(1) For the purposes of the exercise by the

Authority

of any of its functions under the Act or any other

law the Authority is entitled to enforce, the Authority may>

(a) enter, at any reasonable time, any premises other

than a place of residence, or any other place or any

vehicle or vessel where any activity regulated by or under

this Act or any other law which the Authority is entitled

to enforce, takes place, or in the opinion of the Authority

takes place, and search and inspect the premises, place,

vehicle or vessel and any books, documents or records

found therein,

(b) require any person to produce for inspection and

take extracts from any books, documents or records

relating to any activities regulated by or under this Act or

any other law which the Authority is entitled to enforce,

which are under the control of that person and, in the case

of information in a non-legible form to reproduce it in a

legible form, and to give to the Authority such information

as the Authority may reasonably require in relation to any

entries in such books, documents or records,

(c) require any person to maintain such books,

documents or records for such period as may be

reasonable as the Authority directs,

(d) require any person to give to the Authority any

information that may be required with regard to any

activities regulated by or under this Act or any other law

the Authority is entitled to enforce,

(e) make such inspections, tests and measurements

of any machinery, apparatus, appliances and other

equipment at any place as the Authority may consider

necessary.

(2) Any officer of the Authority or any other person

duly authorised by the Authority to act on its behalf when

exercising a power conferred by this article, shall if requested

by any person thereby affected, produce to that person for

inspection a certificate issued by the Authority stating that he

is duly authorised to act for and on behalf of the Authority.

(3) In the course of the exercise of any of the powers

under this article the Authority may request the assistance of

the Police.

(4) The Directors and managers, by whatever name

designated, or any other persons who are or have been in

charge of the operations or activities falling under the

supervisory or regulatory functions of the Authority shall

assist and shall collaborate with the Authority in order to

enable it to discharge its functions, and shall collate and

transmit without any undue delay such information and

documentation as the Authority may reasonably request from

time to time.

(5) Any person who -

(a) obstructs, impedes or assaults an officer of the

Authority or any other person duly authorised by the

Authority to act on its behalf in the exercise of a power

under this article,

(b) fails or refuses to comply with a requirement

under this article,

(c) alters, suppresses or destroys any books,

documents or records which the person concerned has

been required to produce, or may reasonably expect to

be required to produce, or

(d) falsely represents himself to be an officer of the

Authority or a person authorised by the Authority to act

on its behalf,

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

conviction be liable to a fine (multa) not exceeding five

thousand liri or to imprisonment for a period not exceeding

three months, or to both such fine and imprisonment.

Disclosure of

(1) Except where otherwise provided by law, a

information. person shall not knowingly disclose confidential information

obtained by him while performing the duties of a member,

officer or employee of the Authority or of an adviser or

consultant to the Authority, unless he is duly authorised by

the Authority to do so.

(2) In this article “confidential information” means any

information however so described which is considered by the

Authority to be confidential and in relation to which the

Authority has notified the persons concerned of their duty of

non-disclosure.

(3) A person who contravenes this article shall be guilty

of an offence against this Act and shall on conviction be liable

to a fine (multa) not exceeding one thousand Maltese liri.

(4) Nothing in this article shall prevent the disclosure

of any information to the Authority or, by or on behalf of the

Authority to the Minister or as may be required at law.

(1) Without prejudice to the provisions of articles

sanctions the

32 and 33 of this Act and unless otherwise expressly provided

may impose.

under this Act or any other law which the Authority is entitled

to enforce, the Authority may, if it deems appropriate, require

any person who commits an infringement of any provisions

of the Act or any other law which the Authority is entitled to

enforce, to rectify his acts or omissions and to make his

submissions thereto within such period not being less than

thirty days and subject to such conditions as the Authority

may consider reasonable in the circumstances.

(2) If the person concerned remedies the infringement

within the period established by the Authority in accordance

with subarticle (1) of this article and in writing agrees to abide

with any conditions that the Authority may impose in

accordance with subarticle (1) of this article, the Authority

shall desist from proceeding any further.

(3) If a person who commits an infringement of any

provisions of this Act or any law that the Authority is entitled

to enforce, fails to rectify his acts or omissions in accordance

with subarticles (1) and (2) of this article, the Authority may>

(a) impose an administrative fine in accordance with

the provisions of articles 32 and 33 of this Act, and

(b) in cases which the Authority considers to

constitute a repeated and serious infringement, the

Authority may withdraw or suspend the right to provide

any services or networks regulated by or under this Act

or any other law which the Authority is entitled to

enforce.

(4) Notwithstanding the provisions of subarticles (1)

and (3) of this article and of article 33, where the Authority

has prima facie evidence that the infringement -

(i) represents an immediate and serious threat

to public safety, public security or public health, or

(ii) creates or may create serious economic or

operational problems for other providers of

communications services or networks, or for

consumers,

the Authority may take urgent interim measures to remedy

the situation in advance of reaching a final decision including

the imposition of administrative fines>

Provided that the person against whom such measures

are contemplated, shall be given a reasonable opportunity to

state his view and propose any remedies.

(5) The Authority shall give its reasons for any decision

taken under this article.

(1) The Authority may impose an administrative

Administrative

infringements.

fine upon any person who>

(a) infringes any provision of this Act or of any

other law which the Authority is entitled to enforce< or

(b) fails to comply with any directive or decision

given by the Authority whether under this Act or any

other law which the Authority is entitled to enforce>

Provided that in all cases where the Authority imposes

an administrative fine in respect of anything done or omitted

to be done by any person and such act or omission also

constitutes a criminal offence, no proceedings may be taken

or continued against the said person in respect of such criminal

offence.

(2) An administrative fine imposed under subarticle

(1) of this article shall not, unless provided otherwise by or

under this Act, exceed one hundred thousand liri for each

infringement or failure to comply and, or two thousand liri

for each day of infringement or non-compliance as the case

may be>

Provided that if the act or omission which constitutes an

infringement is committed by an undertaking and has

especially significant effects on the market to the detriment

of competitors and, or consumers, the stated amount that may

be imposed as an administrative fine may be exceeded

provided that this is not more than five per cent of the turnover

of the undertaking in the calendar year immediately preceding

the year when the infringement was committed.

(3) In determining the amount of an administrative fine,

regard shall be had in particular to the nature and extent of

the infringement, its duration and its impact on the market

and on consumers.

(4) The Minister may in regulations made under this

Act establish the administrative fines that may be imposed

by the Authority for breaches of the said regulations>

Provided that the amount of the fines that may be so

prescribed shall not exceed the maximum amounts referred

to under subarticle (2) of this article.

(5) Notwithstanding the provisions of any law, no

precautionary warrant or order shall be issued by any court

restraining the Authority from the exercise of any of the

powers conferred upon it by or under this article.

(1) Before imposing an administrative fine the

imposing an Authority shall write to the person concerned warning him

administrative that an administrative fine may be imposed and informing

him of the amount of the fine that may be imposed and the

specific reasons for which it may be imposed and granting

the person concerned a period of not less than thirty days as

the Authority may determine to be appropriate in the

circumstances during which period the person concerned may

make his submissions to the Authority>

Provided that where the Authority has used the procedure

provided for in article 31 of this Act, the notice provided for

in the said article and in this subarticle may be given

concurrently and the Authority may determine that the period

of thirty days referred to above shall commence upon the lapse

of any period granted for the remedy of any infringement

under article 31 of this Act>

Provided further that the period of thirty days referred

to in subarticle (1) of article 33 may be shortened in the

circumstances referred to in subarticle (4) of article 31.

(2) Before deciding whether to impose an

administrative fine the Authority shall consider the

submissions, if any, made to it under subarticle (1) of this

article.

(3) If after the lapse of the period during which

submissions may be made in accordance with subarticle (1)

of this article the Authority considers that the person

concerned has not given any valid proof or reasons to

demonstrate that the administrative fine referred to in

subarticle (1) of this article should not be imposed, the

Authority shall impose an administrative fine in accordance

with this Act and shall give notice in writing to the person

concerned specifying the nature of the infringement and the

amount of the administrative fine due.

(4) The notice as referred to in subarticle (3) of this

article shall, without prejudice to the right of appeal under

article 38 of this Act, upon the service of a copy thereof by

means of a judicial act on the person indicated in the notice,

constitute an executive title for all effects and the purposes of

Title VII of Part I of Book Second of the Code of Organization

and Civil Procedure.

(5) Notwithstanding the provisions of subarticle (2) of

article 256 of the Code of Organization and Civil Procedure,

the executive title referred to in subarticle (4) of this article

shall not be enforceable before the lapse of thirty days from

the service of the judicial act therein referred to>

Provided that where an appeal against an administrative

fine in accordance with article 38 of this Act has been filed,

the provisions of article 38 of this Act shall apply.

Administrative

Where an administrative infringement of any

infringements

provision of this Act or any other law which the Authority is

entitled to enforce is committed by a body corporate and is

proved to have been committed with the consent or

involvement of or to be attributable to any gross negligence

on the part of a person being a director, manager, secretary or

other officer however so described of the body corporate or a

person who was purporting to act in any such capacity, that

person, as well as the body corporate, shall be liable to be

proceeded against and punished as if he was responsible for

the said infringement .

The prosecution of a criminal offence or the

initiation of proceedings to impose an administrative fine

administrative

under this Act or under any other law which the Authority is

infringements.

entitled to enforce shall be prescribed by the lapse of two

years from the date on which the offence or administrative

infringement is alleged to have been committed.

PART VIII

COMMUNICATIONS APPEALS BOARD

(1) There shall be an Appeals Board, to be known

as the Communications Appeals Board which shall have

jurisdiction to hear and determine appeals from decisions of

the Authority as provided in this Act or in any law or

regulations.

(2) The Communications Appeals Board shall be

appointed by the Prime Minister, and shall be composed of>

(a) a chairman who shall be an advocate with at

least seven years practice, and

(b) two other members who shall be selected by

the Chairman of the Appeals Board from amongst panels

of persons appointed by the Prime Minister and having

such commercial, technical, or financial experience in

the fields of electronic communications, postal services

and such other areas relating to communications in

respect of which the Appeals Board has jurisdiction.

(3) The Chairman and members of the panels of the

Appeals Board shall be appointed for a term of three years

and shall be eligible for re-appointment.

(4) The Appeals Board shall be independent in the

performance of its functions.

(5) The Chairman and members of the Appeals Board

may be challenged or abstain for any of the reasons for which

a judge may be challenged or abstain in accordance with the

Code of Organization and Civil Procedure. In such a case the

Prime Minister shall appoint a person, having the

qualifications of the chairman or member challenged or

abstaining, to sit in substitution.

(6) A member of the House of Representatives or of

the European Parliament or of a local council shall be

disqualified from being appointed or continuing to be the

Chairman or a member of the Appeals Board for as long as

he holds that office.

(7) The Chairman or member of the Appeals Board

may only be removed from office by the Prime Minister on

grounds of gross negligence, conflict of interest,

incompetence, or acts or omissions unbecoming a member

of the Appeals Board. In doing so the Prime Minister shall

lay before the House of Representatives a statement giving

the reasons for the removal of the said member.

(8) The Chairman or a member of the Appeals Board

shall for a period of one year following the termination for

whatever reason of his appointment not engage in any activity

which because of conflict of interest would have been

incompatible with the exercise of his functions. Any person

who acts in breach of this subarticle shall be guilty of an

offence against this Act and shall on conviction be liable to a

fine (multa) of not more than one thousand liri and shall be

barred from being appointed to any similar posts for a period

of not less than ten years.

(9) The Prime Minister shall designate a person to serve

as secretary to the Appeals Board and who shall serve in such

a capacity in accordance with the ethical standards appropriate

to his position.

(10) Notwithstanding the coming into force of Part VIII

of this Act and the establishment of the Communications

Appeals Board, any appeals that may be pending before the

Telecommunications Appeals Board and, or the Postal

Services Appeals Board on the date of the coming into force

of Part VIII of this Act, shall continue to be heard and

determined according to the law as in force immediately prior

to the coming into force of Part VIII of this Act, by the

Telecommunications Appeals Board and, or the Postal

Services Appeals Board according to the merits of the case.

(1) Unless otherwise provided by law an appeal

shall lie to the Appeals Board from a decision or a directive

of the Authority made under this Act, the Electronic

Communications (Regulation) Act, the Utilities and Services

(Regulation of Certain Works) Act or the Postal Services Act>

administrative

Provided that the Prime Minister may by order in the

Gazette extend the jurisdiction of the Appeals Board to>

(a) any other decisions that the Authority may take

under any other law which the Authority is entitled to

enforce, and

(b) any decision taken by or on behalf of

Government or by any public authority in relation to or

having a substantial bearing on communications.

(2) The right of appeal to the Appeals Board shall be

competent to any person aggrieved by the decision>

Provided that in any case, a person making an appeal to

the Appeals Board shall also explain his juridical interest in

impugning the decision or directive appealed from.

(3) Without prejudice to the provisions of article 38 of

this Act>

(a) An appeal from a decision or directive of the

Authority shall be made by application and shall be filed

with the secretary of the Appeals Board within thirty

days from the date on which the said decision has been

notified to the party appealing< and

(b) The application of appeal shall be notified to

the Authority, which shall not later than twenty days

from such notification file its reply thereto with the

secretary of the Appeals Board.

(1) Without prejudice to the provisions of this

administrative Part, the procedure to be followed in relation to appeals against

fine imposed administrative fines imposed by the Authority shall be

regulated by the provisions of this article.

(2) A person who is notified with a judicial act referred

to in subarticle (4) of article 33 of this Act may within thirty

days from the date of such notification lodge an appeal before

the Appeals Board objecting to the administrative fine so

fixed.

(3) The Appeals Board shall not annul an

administrative fine as aforesaid unless such fine cannot at

law be imposed in the circumstances of the case, or cannot at

law be fixed in the amount established by the Authority due

account being given to the principle of proportionality.

(4) The Appeals Board shall, without delay, set down

the appeal for hearing at an early date, which date shall in no

case be later than forty days from the date of the service of

the appeal on the Authority.

(5) The appeal, and the notification of the date fixed

for hearing, shall be notified to the Authority without delay,

and the Authority shall file its reply thereto within twenty

days from the date of the notification of the appeal.

(6) The decision of the Appeals Board upon an appeal

referred to in subarticle (2) of this article, confirming the

imposition of a fine established by the Authority or reducing

any such fine, shall upon becoming res judicata be deemed

to be a decision of the Appeals Board equivalent to a decision

of the First Hall of the Civil Court ordering payment by the

appellant of the administrative fine as confirmed or reduced.

(7) There shall be a right of appeal to the Court of

Appeal to any of the parties to the proceedings before the

Appeals Board in accordance with article 41 of this Act.

(1) In determining an appeal the Appeals Board

Decisions of

shall take into account the merits of the appeal, and may in

whole or in part, confirm or annul the decision appealed from,

giving in writing the reasons for its decision and shall cause

such decision to be made public and communicated to the

parties to the appeal.

(2) Subject to the provisions of article 41 the decisions

of the Appeals Board shall be final and binding.

(3) Where the Appeals Board considers that, having

regard to its determination of the appeal and all other relevant

matters, there are sufficient reasons rendering it equitable to

do so, it may, either of its own motion or on application by a

consumer being a party to the appeal, order that the whole or

part of the costs of any such party appearing before the

Appeals Board relating to the engagement of a lawyer and,

or of a technical adviser shall be paid to the consumer

concerned by any other party to the appeal named in the order.

(1) In the exercise of its functions the Appeals

Procedure of

Board may summon any person to appear before it and give

evidence and produce documents, and the Chairman of the

Appeals Board shall have the power to administer the oath.

(2) The Appeals Board shall endeavour to determine

an appeal within one hundred and twenty days from the lapse

of the period by when the Authority may file its reply to the

aforesaid appeal and in any case shall deliver its final decision

not later than sixty days from when the parties declare that

they have concluded with their evidence and made their final

submissions.

(3) The Appeals Board in order to assist it in the

exercise of its functions may appoint independent and

impartial experts to advise it on any issue that may be relevant

to any appeal lodged before it. In such cases the Appeals Board

shall be entitled to make both provisional and final orders in

respect of the payment of the costs and fees of such experts

by any of the parties to the appeal.

(4) The Appeals Board in the exercise of its functions

shall have the same powers as are competent to the First Hall,

Civil Court according to law.

(5) The Minister may subject to the provisions of this

Act, by regulations prescribe the procedure to be followed

before the Appeals Board, and subject thereto and to any other

provisions of this Act, the Appeals Board may regulate its

own procedure.

(6) The Minister may, with the concurrence of the

Minister responsible for finance by regulation, establish any

such fees as are considered to be necessary in relation to any

proceedings before the Appeals Board.

(7) The Minister may by regulation amend any of the

periods stated in subarticle (2) of this article.

(1) Any party to an appeal to the Appeals Board,

Appeal to the

including

the Authority, who feels aggrieved by a decision of

the Appeals Board, may on a question of law appeal to the

Court of Appeal (Inferior Jurisdiction) as constituted in

accordance with article 41(6) of the Code of Organization

and Civil Procedure by means of an application filed in the

registry of that court within thirty days from the date of the

decision of the Appeals Board.

(2) The Minister responsible for justice may by

regulation under this subarticle establish the fees payable in

the registry of the court in relation to the filing of judicial

acts in connection with appeals under this article>

Provided that until such fees are so established, the fees

in Schedule A to the Code of Organization and Civil Procedure

shall apply.

(3) The Board established under article 29 of the Code

of Organization and Civil Procedure may make Rules of Court

governing appeals to the Court of Appeal under this article.

(1) The decision or the directive of the Authority

pending

an appeal whether before the Appeals Board or the

Court of Appeal, shall stand and shall be adhered to by all the

appeal before

the Appeals parties to whom the decision or the directive applies.

Board or the

(2) The Appeals Board or the Court of Appeal as the

case may be, where it considers it to be appropriate, may on

the application of a party to the appeal, suspend the decision

or the directive of the Authority pending the final

determination of the appeal. The Appeals Board or the Court

of Appeal in deciding to suspend the decision or the directive

shall state their reasons for doing so.”.

9. Immediately after article 44 of the principal Act there shall be

added the following new articles>

The members, officers and employees of the

Authority in the performance of their functions under this

Act or any other law administered by the Authority, shall not

be liable for any loss or damage suffered by any person by

reason of anything done or omitted to be done in good faith

in the course of the administration of this Act or any other

law.

(1) Where a notice however so described is

required to be given by the Authority to any person whether

under this Act or under any other law administered by the

Authority, the notice shall be addressed to that person and

shall be given to the person in any of the following ways>

(a) by delivering it to the person,

(b) by leaving it at the address at which the person

ordinarily resides or carries on business,

(c) by sending it by registered post to the person at

the address at which the person ordinarily resides or

carries on business,

(d) if an address for the service of notices has been

provided by the person, by leaving it at, or sending it by

registered post addressed to the person to that address,

(e) in any case where the Authority considers that

the immediate giving of the notice is required, by sending

it, by means of a facsimile machine or by electronic mail,

to a device or facility for the reception of facsimiles or

electronic mail located at the address at which the person

ordinarily resides or carries on business or, if an address

for the service of notices has been furnished by the

person, that address, provided that the facsimile machine

of the sender generates a message confirming successful

transmission of the total number of pages of the notice

or the facility of the sender for the reception of electronic

mail generates a message confirming receipt of the

electronic mail>

Provided that the provisions of paragraph (e) of this

article shall not apply to the notification of documents filed

before the Appeals Board or any Court.

(1) Where the Authority desires to sue for the

recovery of a debt due to the Authority under any law which

it is entitled to enforce for any licence or authorisation fee or

other similar fee or charge however so described that may be

due, the Chairman, Director General or an officer of the

Authority duly authorised by the Authority to act on its behalf

may make a declaration on oath before the registrar, a judge

or a magistrate wherein he states the nature of the debt and

the name of the debtor and confirm that it is due.

(2) The declaration referred to in sub-article (1) shall

be served upon the debtor by means of a judicial act and it

shall have the same effect as a final judgement of the

competent court unless the debtor shall, within a period of

twenty days from service upon him of the said declaration,

oppose the claim by filing an application demanding that the

court declare the claim unfounded.

(3) The application filed in terms of sub-article (2) shall

be served upon the Authority, which shall be entitled to file a

reply within a period of twenty days. The court shall appoint

the application for hearing on a date after the lapse of that

period. ”.

PART II

AMENDMENTS OF THE TELECOMMUNICATIONS

(REGULATION) ACT

10. (1) This Part amends the Telecommunications (Regulation)

Act, and it shall be read and construed as one with the

Telecommunications (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 communications may by notice in the Gazette

appoint and different dates may be so appointed for different provisions

and different purposes thereof.

11. (1) For the long title of the principal Act there shall be

substituted the following>

“An Act to regulate Electronic Communications.”.

(2) In article 1 of the principal Act for the words

“Telecommunications (Regulation) Act” there shall be substituted the

words “Electronic Communications (Regulation) Act”.

12. For all the definitions in article 2 of the principal Act there

shall be substituted the following>

“ “access” means the making available of facilities and, or

services, to another undertaking, under defined conditions, on either

an exclusive or non-exclusive basis, for the purpose of providing

electronic communications services. It covers inter alia access to

network elements and associated facilities, which may involve the

connection of equipment, by fixed or non-fixed means (in particular

this includes access to the local loop and to facilities and services

necessary to provide services over the local loop), access to physical

infrastructure including buildings, ducts and masts< access to

relevant software systems including operational support systems,

access to number translation or systems offering equivalent

functionality, access to fixed and mobile networks, in particular

for roaming, access to conditional access systems for digital

television services< access to virtual network services<

“the Act” means this Act and includes any regulations made

thereunder unless the context otherwise requires<

“apparatus” includes any equipment or machinery however

so described<

“Appeals Board” means the Communications Appeals Board Cap. 418.

established under the Malta Communications Authority Act<

“associated facilities” means those facilities associated with

an electronic communications network and, or an electronic

communications service which enable and, or support the provision

of services through that network and, or service. It includes

conditional access systems and electronic programme guides<

“the Authority and “the competent authority” mean the Malta

Communications Authority established under the Malta

Communications Authority Act<

“cable television networks” means any mainly wire-based

infrastructure established primarily for the delivery or distribution

of radio or television broadcast to the public<

“Community” means the European Communities<

“conditional access system” means any technical measure and,

or arrangement whereby access to a protected radio or television

broadcasting service in intelligible form is made conditional upon

subscription or other form of prior individual authorisation<

“consumer” means any natural person who uses or requests a

publicly available electronic communications service, or any such

other communications services as the Minister may, after

consultation with the Authority, by order in the Gazette establish,

for purposes which are outside his trade, business or profession<

“cross-border” means to and from another Member State,

unless stated otherwise<

“decision” includes any determination, measure, order,

requirement or specification however so described made by the

Authority and the word “decision” shall be construed accordingly<

“directive” means a directive issued by the Authority in terms

of article 4 of the Malta Communications Authority Act<

“electronic communications network” means transmission

systems and, where applicable, switching or routing equipment

and other resources which permit the conveyance of signals by

wire, by radio, by optical or by other electromagnetic means,

including satellite networks, fixed (circuit-switched and packet-

switched, including Internet) and mobile terrestrial networks,

electricity cable systems, to the extent that they are used for the

purpose of transmitting signals, networks used for radio and

television broadcasting, and cable television networks, irrespective

of the type of information conveyed<

“electronic communications service” means a service

normally provided for remuneration which consists wholly or

mainly in the conveyance of signals on electronic communications

networks, including telecommunications services and transmission

services in networks used for broadcasting, but exclude services

providing, or exercising editorial control over, content transmitted

using electronic communications networks and services< it does

not include information society services, as defined in the Electronic

Commerce Act, which do not consist wholly or mainly in the

conveyance of signals on electronic communications networks<

“end-user” means a user not providing public communications

networks or publicly available electronic communications services<

“European Commission” means the Commission of the

European Communities<

“exclusive rights” means a right granted to an undertaking

reserving to it the right to provide an electronic communications

service or to undertake an electronic communications activity

within a given geographical area to the exclusion of other

undertakings<

“general authorisation” means the legal framework established

by or under this Act ensuring rights for the provision of electronic

communications networks or services and laying down sector

specific obligations that may apply to all or to specific types of

electronic communications networks and services in accordance

with this Act<

“interconnection” means the physical and logical linking of

public communications networks used by the same or a different

undertaking in order to allow the users of one undertaking to

communicate with users of the same or another undertaking, or to

access services provided by another undertaking. Services may be

provided by the parties involved or other parties who have access

to the network. Interconnection is a specific type of access

implemented between public network operators<

“internal market” means the internal market of the

Community<

“local loop” means the physical circuit connecting the network

termination point at the subscriber’s premises to the main

distribution frame or equivalent facility in the fixed public

telephone network<

“Member State” means a Member State of the Community<

“the Minister” means the Minister responsible for

communications<

“national regulatory authority” means the body or bodies

notified for the purposes of Community law to the European

Commission by a Member State as having been assigned tasks in

the regulation of electronic communications services, electronic

communications networks, associated facilities and associated

services<

“network termination point” means the physical point at which

a subscriber is provided with access to a public communications

network< in the case of networks involving switching or routing,

the network termination point is identified by means of a specific

network address, which may be linked to a subscriber number or

name<

“operator” means an undertaking providing or authorised to

provide a public communications network or an associated facility<

“person” includes any body corporate and any body of persons

whether or not it has a legal personality distinct from that of its

members<

“prescribed” means prescribed by regulations made under this

Act<

“provision of an electronic communications network” means

the establishment, operation, control or making available of such

a network<

“public communications network” means an electronic

communications network used wholly or mainly for the provision

of publicly available electronic communications services<

“public pay telephone” means a telephone available to the

general public, for the use of which the means of payment may

include coins and, or credit and, or debit cards and, or pre-payment

cards, including cards for use with dialling codes<

“public telephone network” means an electronic

communications network which is used to provide publicly

available telephone services< it supports the transfer between

network termination points of speech communications, and also

other forms of communication, such as facsimile and data<

“publicly available electronic communications service” means

an electronic communications service available to the public<

“publicly available telephone service” means a service

available to the public for originating and receiving national and

international calls and access to emergency services through a

number or numbers in a national or international telephone

numbering plan, and in addition may, where relevant, include one

or more of the following services>

(i) the provision of operator assistance,

(ii) directory enquiry services,

(iii) directories,

(iv) provision of public pay phones,

(v) provision of service under special terms, and

(vi) provision of special facilities for persons with

disabilities or with special social needs and, or the provision

of non-geographic services<

“satellite earth station network” mean a configuration of two

or more earth stations which inter-work by means of a satellite<

“significant market power” means a position equivalent to

dominance enjoyed by an undertaking either individually or jointly

with others that is to say a position of economic strength affording

it the power to behave to an appreciable extent independently of

competitors, customers and ultimately consumers<

“special rights” means the rights that are granted to a limited

number of undertakings which, within a given geographical area>

(i) designates or limits to two or more the number of

such undertakings authorised to provide an electronic

communications service or undertake an electronic

communications activity, otherwise than according to

objective, proportional and non-discriminatory criteria, or

(ii) confers on undertakings, otherwise than according

to such criteria, legal or regulatory advantages which

substantially affect the ability of any other undertaking to

provide the same electronic communications activity in the

same geographical area under substantially equivalent

conditions<

“subscriber” means any person who or which is party to a

contract with the provider of publicly available electronic

communications services for the supply of such services<

“undertaking” means a person providing or authorised to

provide electronic communications networks and, or services or

associated facilities<

“universal services” means the minimum set of services of

specified quality which is available to all users regardless of their

geographical location and, in the light of specific national

conditions, at an affordable price as may be defined under

regulations made under this Act<

“user” means any person using or requesting a publicly

available electronic communications service<

“wide-screen television service” means a television service

that consists wholly or partially of programmes produced and edited

to be displayed in a full height wide-screen format. The 16>9 format

is the reference format for wide-screen television services.”.

13. In the title to Part II of the principal Act, and in sub-title 1 Amendment of titles

thereof, for the word “Telecommunications” there shall be substituted of

principal Act.

the words “Electronic Communications”.

14. For article 3 of the principal Act there shall be substituted Substitution of

article 3 of the

the following>

principal Act.

3. The Malta Communications Authority established

Communica-

under the Malta Communications Authority Act shall be the

competent authority to regulate electronic communications

under this Act and, insofar as is provided in this Act, to enforce

the provisions of this Act.”.

15. For article 4 of the principal Act there shall be substituted

the following>

4. The objectives of the Authority in the exercise of

“Objectives

of the

its functions under the Act shall include>

Authority.

(a) to promote competition by -

(i) ensuring that users, including disabled

users, derive maximum benefit in terms of choice,

(ii) ensuring that there is no distortion or

restriction of competition in the electronic

communications sector<

(iii) encouraging efficient investment in

infrastructure, and promoting innovation< and

(iv) encouraging efficient use and ensuring the

effective management of radio frequencies and

numbering resources.

(b) to contribute to the development of the internal

market by -

(i) removing remaining obstacles to the

provision of electronic communication networks,

associated facilities and services and electronic

communications services at Community level<

(ii) encouraging the establishment and

development of trans-European networks and the

interoperability of transnational services and end-

to-end connectivity,

(iii) ensuring that, in similar circumstances,

there is no discrimination in the treatment of

undertakings providing electronic communications

networks and services and associated facilities, and

(iv) co-operating with electronic

communications national regulatory authorities in

Member States of the Community and with the

European Commission in a transparent manner to

ensure the development of consistent regulatory

practice and the consistent application of

Community law in this field,

(c) to promote the interests of users within the

Community by -

(i) ensuring that all users have access to a

universal service,

(ii) ensuring a high level of protection for

consumers in their dealings with suppliers, in

particular by ensuring the availability of simple and

inexpensive dispute resolution procedures carried

out by a body that is independent of the parties

involved<

(iii) contributing to ensuring a high level

protection of personal data and privacy,

(iv) promoting the provision of clear

information, in particular requiring transparency of

tariffs and conditions for using publicly available

electronic communications services,

(v) addressing the needs of specific social

groups, in particular disabled users, and

(vi) ensuring that the integrity and security of

public communications networks are maintained.

(d) ensuring that in so far as is practicable that there

are provided in Malta such electronic communications

services as satisfy all reasonable demands for such

services including emergency services, public call

services and directory information services.”.

16. In the heading to subtitle 2 of Part II of the principal Act the Deletion of the

words of heading of

words between articles 4 and 5, “2. Authorisation for subtitle 2 of Part II

telecommunications systems or services” shall be deleted, and article 5 of the principal Act.

shall be read and construed as part of subtitle 1.

17. For article 5 of the principal Act there shall be substituted Substitution of

article 5 of the

the following>

principal Act.

5. (1) This Act shall apply to the various

communications markets unless otherwise stated in the Act.

(2) This Act shall not apply to the content of messages

transmitted through any electronic communications network.

(3) The provisions of this Act shall be without

prejudice to the operation of any other law>

(a) in respect of services provided using electronic

communications networks and services, or

(b) in respect of content and broadcasting

regulation or audiovisual policy, or

(c) relating to radio and telecommunications

terminal equipment.”.

18. Immediately after article 5 of the principal Act, there shall

be added the following new subheading to subtitle 2 of Part II>

“2. General provisions relating to the role of the

Authority and the rights and obligations of undertakings”.

19. For articles 6 to 26 of the principal Act there shall be

substituted the following>-

6. (1) Any person shall install or operate any

electronic communications network or provide any electronic

communications service in Malta in compliance with this Act.

(2) Failure to comply with subarticle (1) of this article

shall constitute an infringement of this Act.

7. (1) An undertaking authorised by or under this Act

to operate a public communications network shall, in addition

to complying with the provisions of this Act and with

obligations in accordance with its authorisation, ensure>

(a) that the capacity, quantity and features of the

network are sufficient for providing and maintaining an

efficient communications network,

(b) that the network is sufficient for and compatible

with such international electronic communications

services as the Authority may specify, and

(c) the security of the network and any extension

thereof.

(2) Failure to comply with subarticle (1) of this article

shall constitute an infringement of this Act.

8. (1) An undertaking authorised by or under this Act

to provide a publicly available electronic communications

service shall>

(a) provide such services efficiently, complying

with the standards for quality generally accepted in the

industry or as may from time to time be specified by the

Authority,

(b) notify the Authority and publish by notice in

the media when the services are to be interrupted for the

installation or repair or the changing of apparatus,

(c) establish an efficient mechanism for receiving

complaints and repairing failures in its networks and in

the services provided,

(d) comply with the provisions of the Act as well

as with the terms and conditions of the authorisation,

and abide by any directives or decisions of the Authority

as the Authority may be empowered to issue by or under

this Act.

(2) Failure to comply with subarticle (1) of this article

shall constitute an infringement of this Act.

9. (1) The Authority shall, subject to any procedures

may

be prescribed under this Act and in accordance with

the principles of competition law, define relevant markets

appropriate to national circumstances, in particular relevant

geographic markets and it shall carry out an analysis of such

relevant markets. In doing so the Authority shall take the

utmost account of any relevant recommendations and

guidelines that the European Commission may issue from

time to time.

(2) Where the Authority concludes that a market is

effectively competitive, it shall then not impose or maintain

such regulatory obligations and controls as may be specified

in regulations made under this Act.

(3) Where the Authority determines that a relevant

market is not effectively competitive, it shall identify and

designate undertakings with significant market power in that

market and it shall impose upon such undertakings appropriate

regulatory obligations and controls identified in subarticle (2)

of this article in accordance with any regulations made under

this Act.

Consultation

10. (1) Except in relation to>

transparency

(a) any dispute being dealt with in accordance

with this Act, or,

(b) the exercise of any enforcement powers of the

Authority under Part VII of the Malta Communications

Authority Act, or

(c) cases where the Authority considers that there

is an urgent need to act in order to safeguard competition

and protect the interests of users in accordance with

Community law,

where the Authority intends to take a decision in accordance

with the Act which has a significant impact on a market for

electronic communications networks or services, it shall make

available to interested parties, a statement of the proposed

decision and give such interested parties the opportunity to

comment on the proposed decision within a period which the

Authority considers reasonable.

(2) The Authority shall publish its consultation

procedures and shall establish a single information point

through which all current consultations can be accessed.

(3) The results of any consultations under this article

shall be made publicly available by the Authority through

such means as the Authority considers appropriate in the

circumstances, except in the case of information which the

Authority considers to be confidential.

11. (1) The Authority shall establish and manage the

national numbering plan for electronic communication

services, and shall control the assignment of all national

numbering resources. In doing so it shall ensure that adequate

numbers and numbering ranges are provided for all publicly

available electronic communications services.

(2) The Authority shall as necessary, subject to

ensuring the proper management of the national numbering

plan, grant rights of use for numbers and number ranges for

all publicly available electronic communications services

according to procedures that are objective, transparent and

non-discriminatory.

(3) The Authority shall, subject only to any limitation

that may be specified by the Minister on grounds of national

security, from time to time publish the main elements of the

national numbering plan and subsequent additions or

amendments thereto.

(4) The Authority shall, in so far as is practicable,

having regard to its objectives and functions as stated under

this Act, support the harmonisation of numbering resources

within the Community where necessary to support the

development of pan-European services.

(5) The Authority may, without prejudice to the

generality of any provisions by or under this Act relating to

authorisations, attach conditions to rights of use for numbers

to ensure efficient and effective management of all numbering

resources.

(6) No undertaking shall assign to locations, terminals,

persons or functions on public electronic communications

networks, numbers that have not specifically been allocated

to that person by the Authority for the purpose of providing

publicly available electronic communications services.

(7) An undertaking allocated a range of numbers shall

not discriminate against any other providers of electronic

communications services as regards the number sequences

used to give access to their services.

(8) Any undertaking which commits an infringement

of any provisions of this article shall be liable to the imposition

of an administrative fine by the Authority not exceeding the

sum of ten thousand liri and, or two hundred liri for each day

during which failure to comply persists.

12. No restrictions shall be imposed or maintained on

the provision of electronic communications services over

electronic communications networks established by an

undertaking providing electronic communications services,

over infrastructures provided by third parties, or by means of

sharing networks, other facilities or sites.

3. Access and Interconnection

13. The Authority shall, acting in accordance with its

Functions of

objectives as stated in the Malta Communications Authority

Act, encourage and where appropriate, ensure, in accordance

with the provisions made by or under this Act, adequate access

interconnection.

and interconnection and interoperability of services in such a

way as to>

(a) promote efficiency,

(b) promote sustainable competition, and

(c) give the maximum benefit to end-users.

14. (1) No restrictions may be imposed or maintained

Prohibition of

that prevent>

(a) undertakings in Malta, or

(b) undertakings in Malta and in Member States,

from negotiating between themselves agreements on technical

and commercial arrangements for access and, or

interconnection, in accordance with Community law.

(2) An undertaking requesting access or

interconnection in Malta does not need to be authorised to

operate in Malta if it is not providing services and does not

operate a network in Malta.

(3) An operator of public communications networks>

(a) shall be entitled, and

(b) when requested by another undertaking

authorised to provide public communications networks,

shall have an obligation,

to negotiate interconnection for the purpose of providing

publicly available electronic communications services in order

to ensure provision and interoperability of services in Malta

and throughout the Community.

(4) An operator of public communications networks

shall offer access and interconnection to other undertakings

on terms and conditions consistent with obligations relating

to access and interconnection imposed by the Authority in

accordance with this Act.

(5) Without prejudice to information that an

undertaking under or by this Act is required to provide under

a general authorisation for rights of use or for specific

obligations, an undertaking that acquires information from

another undertaking before, during or after the process of

negotiating access or interconnection arrangements shall use

that information solely for the purpose for which the

information was supplied and shall respect at all times the

confidentiality of information transmitted or stored.

(6) An undertaking shall not pass on any information

acquired referred to in subarticle (5) of this article to any other

party, in particular other subsidiaries or partners however so

described of the undertaking where such information could

provide a competitive advantage.

(7) Any undertaking which commits an infringement

of this article shall be liable to the imposition of an

administrative fine by the Authority not exceeding the sum

of ten thousand liri and, or two hundred liri for each day during

which failure to comply persists.

4. Accounting separation and financial reporting

15. (1) Any undertaking providing a public

communications network or a publicly available electronic

undertakings

in relation to

communications service, that is also engaged in an activity

other than the provision of such network or services on the

basis of special or exclusive rights for the provision of that

activity whether in Malta or in a Member State shall>

(a) keep separate accounts audited in accordance

with generally accepted auditing practices for the

activities associated with the provision of that network

or service, to the extent that would be required if those

activities were carried out by legally independent

companies, so as to identify all elements of cost and

revenue, with the basis of their calculation and the

detailed attribution methods used, related to their

activities associated with the provision of electronic

communications networks or services including an

itemised breakdown of fixed asset and structural costs,

or

(b) have structural separation for the activities

associated with the provision of electronic

communications networks or services>

Provided that the Minister may, after consultation with

the Authority, by order in the Gazette establish that the

requirements referred to in paragraph (a) of subarticle (1) of

this article do not apply to undertakings the annual turnover

of which in activities associated with electronic

communications networks or services in the Members States

is less than twenty one million Maltese Liri or any other such

other amount as the Minister may, after consultation with the

Authority, by order in the Gazette establish.

(2) Any undertaking which fails to comply with a

requirement under this article shall be liable to the imposition

of an administrative fine by the Authority not exceeding the

sum of ten thousand liri and, or two hundred liri for each day

during which failure to observe this article persists.

16. (1) Where an undertaking providing public

communications networks or publicly available electronic

communications services is not subject to the requirements

of the Companies Act and does not satisfy the small and

medium-sized enterprise criteria of Community law

accounting rules, it shall ensure that>

(a) annual accounts shall be drawn up and submitted

to independent audit and published, and

(b) such audit shall be carried out in accordance

with the relevant rules applicable in Malta and in the

Community>

Provided that nothing in this sub-article shall be

construed as imposing obligations that are more onerous than

those imposed on companies in the Companies Act.

(2) Any undertaking which fails to comply with a

requirement under this article shall be liable to the imposition

of an administrative fine by the Authority not exceeding the

sum of ten thousand liri and, or two hundred liri for each day

during which failure to observe this article persists.

5. Authorisations

17. (1) An undertaking subject to the provisions of

authorisations.

this Act, shall be entitled to provide electronic

communications services or to establish, extend or provide

electronic communications networks.

(2) No exclusive or special rights for the establishment

and, or the provision of electronic communications networks,

or for the provision of publicly available electronic

communications services shall be granted or maintained in

force.

(3) The provision of electronic communications

networks or services may, without prejudice to the specific

obligations that may be imposed on providers of such

networks and services by or under this Act, only be subject to

a general authorisation.

(4) A general authorisation granted by or under this

Act to an undertaking to provide electronic communications

services and, or to establish and, or provide electronic

communications networks, as well as any conditions attached

thereto shall be based on objective, non-discriminatory,

proportionate and transparent criteria.

18. (1) Any administrative charges imposed by the

Administrative

Authority on undertakings under general authorisation or to

whom a right of use has been granted shall>

(a) in total, cover only the administrative costs which

will be incurred in the management, control and enforcement

of the general authorisation scheme and of rights of use, and

specific obligations, and may include costs for international

cooperation, harmonisation and standardisation, market

analysis, monitoring compliance and other market control,

as well as any regulatory work involving compliance with

this Act and the preparation and enforcement of any directives

and, or decisions issued by or under this Act< and

(b) be imposed upon the individual undertakings in an

objective, transparent and proportionate manner which

minimises additional administrative costs and attendant

charges.

(2) The Authority shall, in relation to the imposition

of such administrative charges, publish an annual overview

of its administrative costs and of the total sum of charges

collected.

(3) The Authority shall, in the case of charges imposed

on an annual basis, make appropriate repayments or

compensation in the case of overcharging, or impose

additional charges in the case of undercharging of a person to

whom a charge is imposed in the light of any difference

between the total sum of administrative charges collected and

the administrative costs incurred.

(4) Any fees that may be imposed for rights of use for

radio frequencies and, or numbers shall reflect the need to

ensure the optimal use of the radio frequency spectrum and

the national numbering scheme.

(5) Any such fees referred to in subarticle (4) of this

article shall be objectively justified, transparent, non-

discriminatory and proportionate in relation to their intended

purpose and shall take into account the objectives as set out

in article 4 of the Act.

19. (1) Subject to subarticle (4) of this article any

Authorisation

of electronic

person who intends to provide an electronic communications

network and, or electronic communications service shall,

networks and

before doing so, notify the Authority of his intention to

provide such a network and, or service.

(2) A notification under subarticle (1) of this

article shall be in such form as the Authority may from time

to time determine and shall contain the information that is

required to enable the Authority to maintain a list of providers

of electronic communications networks and, or services.

(3) Upon receipt by the Authority of a notification

in accordance with subarticle (1) of this article, the person

concerned shall be deemed to be authorised to provide an

electronic communications network and, or electronic

communications service, subject to such conditions as may

be imposed in accordance with this Act.

(4) The Authority may determine that any person

providing an electronic communications network and, or

electronic communcations service of a particular class or

description specified in such a decision, shall not be subject

to the requirements of subarticle (1) of this article.

(5) Any person who fails or refuses to comply with a

requirement under this article shall be liable to the imposition

of an administrative fine by the Authority not exceeding the

sum of five thousand liri and, or one hundred liri for each day

during which failure to observe this article persists.

(6) The Authority may, with the approval of the

Minister, by order in the Gazette amend the rights, conditions

and procedures concerning general authorisations and rights

of use for numbers provided that any such amendments may

only be made in objectively justified cases and in a

proportionate manner>

Provided that the Authority before making any such

amendment shall give notice in such manner as it considers

appropriate of its intention, inviting interested parties

including users and consumers, to make representations on

the proposed amendments within such period of not less than

thirty days as may be specified in the notice. The Authority

may in circumstances which it considers to be exceptional,

shorten such period.

20. Compliance with any authorisation by or under this

Requirement

Act enabling a person to install or operate any electronic

authorisations

communications network or provide any electronic

communications service shall not relieve such a person from

any requirement at law to apply for any other authorisation,

licence or permit however so described, or from any obligation

arising from any other law.

6. Obligations of vertically integrated public

undertakings

21. (1) A vertically integrated undertaking, over

discrimination which the Government of Malta or of a Member State has

in one’s own

effective control, which provides electronic communications

networks and which is in a dominant position shall not

discriminate in favour of its own activities.

(2) An undertaking which commits an infringement

of subarticle (1) of this article shall be liable to the imposition

of an administrative fine by the Authority not exceeding the

sum of ten thousand liri and, or two hundred liri for each day

during which failure to comply persists.

7. End-user interests and rights

22. (1) An undertaking shall provide a person

subscribing to services providing connection and, or access

to the public telephone network, with a written contract and

it shall provide such services to end-users in accordance with

such a written contract.

(2) A contract referred to in subarticle (1) of this article

rights and the

shall

expressly include such information as may by regulation

information to

be included. be specified by the Minister after consultation with the

Authority, as the Minister considers to be necessary to protect

the interests of subscribers and of end-users.

(3) Where a written contract is agreed to between an

end-user and an undertaking which provides electronic

communications services, other than one providing connection

and, or access to the public telephone network, such contract

shall include such information as may specified in accordance

with subarticle (2) of this article.

(4) An undertaking referred to in subarticles (1) or (3)

of this article shall, not less than 30 days prior to the taking of

effect of any proposed modification, notify every subscriber

to that service>

(a) of the proposed modification in the conditions

of his contract for that service, and

(b) of his right to withdraw without penalty from

such contract if he does not accept the modification.

(5) A subscriber referred to in subarticle (3) of this

article may withdraw from his contract with the undertaking,

without penalty if he does not accept a proposed modification

referred to in subarticle (4) of this article.

23. A term or condition for the provision of an

certain terms

electronic communications service, even if agreed to by the

subscriber or user, shall be null and without effect to the extent

that it is inconsistent with any provisions made by or under

this Act or the terms or conditions of the authorisation on the

strength of which the service is provided.

8. Dispute resolution

24. (1) In the event of a dispute arising between

undertakings established in Malta in connection with

undertakings. obligations under the Act, the Authority shall subject to

subarticle (2) of this article, at the request of any party to the

dispute, initiate an investigation of the dispute and, as soon

as possible and in any case, other than in circumstances which

the Authority considers exceptional, within four months from

the date on which the dispute was notified to it by a party to

the dispute, make a determination to resolve the dispute and

ensure compliance with this Act>

Provided that nothing in this article shall be construed

as restricting or prohibiting the Authority from undertaking

of its own initiative any investigation of any disputes it may

become aware of and which the Authority believes ought to

be investigated.

(2) The Authority may decide not to initiate an

investigation referred to in subarticle (1) of this article where

it is satisfied that other means of resolving the dispute in a

timely manner are available to the parties or if legal

proceedings in relation to the dispute have been initiated by

any party to the dispute.

(3) Where the Authority decides not to initiate an

investigation under subarticle (2) of this article, it shall inform

the parties of such decision as soon as possible thereafter.

(4) If four months from the date of a decision referred

to in subarticle (3) of this article the dispute is not resolved

and the party seeking redress has not initiated legal

proceedings before the ordinary courts or any other competent

adjudicative fora however so described, the Authority shall,

at the request of any of the parties to the dispute, initiate an

investigation and give a decision in accordance with the

provisions of this article.

(5) In giving a decision under this article the Authority

shall have regard to the its objectives under article 4 of the

Actstated in the Malta Communications Authority Act.

(6) An undertaking to which a decision under this

article applies shall, saving the provisions of article 42 of the

Malta Communications Authority Act, forthwith comply with

that decision. If the undertaking fails to do so, it shall be

deemed to have committed an infringement of this article and

the Authority may impose an administrative fine of not more

than two thousand liri for each day of non-compliance in

accordance with the provisions of this Act. The period of non-

compliance shall be deemed to have commenced from the

date of notification of the decision of the Authority or from

any such other date as may be communicated in the decision

which date shall in any case be on or subsequent to the date

of notification.

(7) In issuing a decision under this article the Authority

shall state the reasons on which it is based, and shall, subject

to such requirements of commercial confidentiality as it may

deem appropriate, notify the parties to the dispute with a copy

of the decision.

(8) The Authority shall publish notice of a decision

given under this article and shall indicate where copies of or

information regarding the decision may be obtained.

(9) The procedure referred to in this article shall not

preclude any party to the dispute from bringing an action

before the courts or any other competent adjudicative fora.

(10) The Minister may by regulation vary the periods

stated in sub-articles (1) and (4) of this article.

25. (1) Where a dispute however so described arises

between an undertaking and a consumer further to a complaint

by a consumer alleging an infringement of the principal Act,

any party to such a dispute may refer the dispute to the

Authority>

Provided that in making a complaint the consumer must

prima facie show that he has been affected by the act or

omission of the undertaking giving rise to the complaint.

(2) Upon receipt of any reference as aforesaid, or

upon otherwise becoming aware of any such dispute that the

Authority believes should be investigated, the Authority shall

notify all the parties to the dispute that the matter is being

investigated. In doing so the Authority shall regulate its own

procedure, which procedure shall, as far as is reasonably

possible, be transparent, simple, inexpensive and conducive

to a prompt and fair settlement of the dispute, and shall afford

all parties to the dispute reasonable opportunity to make their

submissions and to produce any relevant information>

Provided that the Authority may decide not to initiate

an investigation in accordance with this article where it is

satisfied that other means of resolving the dispute in a timely

manner are available to the parties or if legal proceedings in

relation to the dispute have been initiated by any party to the

dispute.

(3) The Authority in resolving any disputes referred

to it under this article, may issue directives to an undertaking

requiring that undertaking to comply with any measure the

Authority may specify for the resolution of the dispute. Such

directives may, having regard to its determination of the

dispute and to all other relevant matters, include an order to

effect the reimbursement of payments received or to make

compensation payments. Such payments may also include the

whole or part of the costs of any party relating to the

engagement of a lawyer and, or of a technical adviser in

relation to any submissions relating to the dispute.

(4) The Authority shall make publicly available any

administrative procedures it may from time to time establish

in relation to the handling of any disputes referred to it under

this article.

(5) The provisions of this article shall be without

prejudice to the right of a consumer to have recourse to any

other body in resolving any such disputes.

(6) In issuing a decision under this article the Authority

shall state the reasons on which it is based, and shall, subject

to such requirements of commercial confidentiality as it may

deem appropriate, notify the parties to the dispute with a copy

of the decision.

(7) The Authority shall publish notice of a decision

given under this article and shall indicate where copies of or

information regarding the decision may be obtained.

(8) A person may, where the dispute involves

undertakings in more than one Member State, request the

Authority to co-ordinate its efforts with any relevant

regulatory authority in another Member State with a view to

bringing about a resolution of the dispute.

26. The Minister may by order in the Gazette extend

Extension of

applicability

the

applicability

of the procedures established under article

to other laws.

24 and, or article 25 of this Act to any other law which the

Authority is entitled to enforce.”.

Articles 27 to 32 of the principal Act shall be deleted.

20.

21. Article 32A of the principal Act shall be renumbered as article

27 thereof and the following heading of Part III shall be inserted

immediately before it>

“Part III - Legal Protection of services based on

or consisting of conditional access”.

Articles 33 to 40 of the principal Act shall be deleted.

22.

23. Immediately after article regulation 27 as renumbered of the

principal Act there shall be added the following new Parts>-

“Part IV

Radio Frequencies Management

28. In this Part unless the context otherwise requires

Interpretation.

“plan” means the “national radio frequency plan” as adopted

by the Minister and published in accordance with the

provisions of this Part.

29. Unless otherwise explicitly authorised by or under

any

law

no person shall use any radio frequency that has not

authorisation.

specifically been allocated to that person by the Authority in

accordance with the national radio frequency plan>

Provided that the Minister may in writing authorise the

Authority to depart from the plan. In doing so the Minister

shall give his reasons and notice of such authorisation shall

be made public.

30. (1) The Authority shall, in accordance with its

Management

objectives under the Act and subject to the national radio

frequency plan, be responsible for the effective management

of the radio frequencies assigned to it under the said national

radio frequency plan.

(2) Without prejudice to subarticle (3) of this article,

no exclusive or special rights of use of radio frequencies shall

be granted for the provision of electronic communications

services.

(3) The Authority and the Minister shall in the exercise

of their respective functions with regard to the allocation and

assignment of such radio frequencies act in accordance with

objective, transparent, non-discriminatory and proportionate

criteria.

Adoption and

31. (1) The Minister shall draw up, adopt and publish

publication of

a

plan,

which plan shall from time to time be revised and

republished by the Minister as may be deemed necessary>

Provided that before adopting or revising the plan as the

case may be, the Minister shall in all instances consult the

Authority.

(2) The Minister shall in drawing up the plan establish

the frequencies to be used and the purposes for which they

may be used.

(3) The plan shall include a set of tables indicating

frequency allocations in the radio spectrum at the date of

publication of the plan.

Authorisations

32. (1) The use of radio frequencies and apparatus,

other

than frequencies and apparatus to be used for the

provision of broadcasting services and frequencies not

assigned to the Authority under the national radio frequency

plan, shall be subject to an authorisation by the Authority

given in accordance with any regulations made under this

Part.

(2) The Minister may after consulting the Authority

make regulations>

(a) on any aspect concerning the issue of authorisations

under this Part,

(b) as to the manner how radio frequencies and, or

apparatus as may be designated, may be used without the

need of an authorisation required under this Part.

33. The Minister, or the Authority with the approval

of the Minister, may for the purpose of ensuring the most

efficient and effective use of radio frequencies in accordance

with the provisions of this Act, impose such requirements or

take such measures as they may consider appropriate including

but not limited to the redistribution or sharing of frequencies.

Part V

Regulations

34. (1) The Minister may, either on the

recommendation of the Authority or on his own initiative after

consultation with the Authority, make regulations to give

better effect to any of the provisions of this Act and in

particular to>

(a) regulate electronic communications services

and, or networks including interconnection of networks,

collocation of facilities, carrier pre-selection, access to

networks, rights of way, the transmission or reception

of satellite signals, the maintenance of and publication,

and access to any information however so described,

stipulate universal service obligations, any matter

concerning numbers including portability, plans and

allocation, the obligations of an undertaking having

significant market power, competition and consumer

protection rules, billing procedures and billing accuracy,

emergency services and directory services<

(b) provide for any requirements that may be

imposed on undertakings to adopt accounting systems

as may be prescribed and to keep such operational,

accounting, financial, statistical and technical records

as may be specified in the regulations, including the

provision to the Authority of such statement, returns and

other information about any company in which an

undertaking has a controlling interest as the Authority

may require for the carrying out of its functions under

the Act<

(c) provide for the conditions applicable to any

authorisations and, or licences however so described,

and returns and reports to be made to the Authority<

(d) regulate the manner in which an electronic

communications and, or radiocommunications

infrastructure or apparatus is to be installed, operated,

maintained, protected or controlled and the technical

standards or specifications to be observed with respect

to such infrastructure or apparatus<

(e) provide for the measures to be taken to ensure

compliance with international and other standards used

in the electronic communications and for the means to

be used and the measures to be adopted to ensure safety

and prevent danger, damage or nuisance in relation to

any aspect of electronic communications<

(f) regulate the quality and standard of electronic

communications services to be provided, and quality of

service targets and the establishment and maintenance

of an efficient assistance service by undertakings for

users<

(g) provide for the complaint processing procedures

to be implemented by an undertaking<

(h) regulate television and radio distribution

services including must carry rules, and the obligation

to make channel capacity for public, governmental or

educational use<

(i) provide for any matter relating to the resolution

of any disputes and, or complaints however so described

relating to electronic communications networks or

services including appeals from any decision, and the

procedure to be followed in the resolution of cross-border

disputes<

(j) regulate the procedure for the resolution of

disputes involving electronic communications networks

and, or services and consumers and the relationship

between the Authority and other public authorities

responsible for the resolution of disputes<

(k) prescribe measures to be taken by any person

for the purpose of ensuring the inviolability of electronic

communications transmitted and their confidentiality and

the protection of privacy in relation to any electronic

communications service including data protection

measures in the electronic communications sector and

data protection measures related to the use of information

obtainable in the electronic communications sector for

the purpose of direct marketing<

(l) regulate the provision of information between

Malta and the Community and, or Members States<

(m) regulate and provide for any fees and, or charges

however so described that may be payable to the

Authority<

(n) provide for any matters that may be required

for the purpose of complying with any international

obligations of Malta related to electronic

communications in particular for the purpose of

complying with any requirements however so described

of the Community<

(o) regulate the allocation or use of radio

frequencies for electronic communications networks

and/, or services, including the transfer of rights to use

radio frequencies and the procedure to be followed<

(p) regulate any matter relating to the regulation,

administration, management and authorisation of radio

spectrum, including the fees and conditions that may be

imposed in relation thereto<

(q) empower the Authority to impose administrative

fines not exceeding the sum of one hundred thousand

Maltese liri for each offence and two thousand Maltese

liri for each day during which failure to comply with the

Act persists, upon any person acting in contravention of

any regulations made under this Act and to provide for

the imposition and enforcement of such fines in

accordance with the provisions of this Act and the Malta

Communications Authority Act<

(r) regulate the obligations including financial

obligations of undertakings with regard to legal

interception<

(s) prescribe anything that may be prescribed under

this Act>

Provided that the Minister may, when making any

regulations under this subarticle which relate to standards or

to matters of a strictly technical nature, make such regulations

in the English language only.

(2) The Minister may, after consultation with the

Authority, by order in the Gazette empower any other public

authority established by law to exercise any specific functions

under this Act or under any regulations made thereunder where

in the opinion of the Minister it is deemed appropriate in the

particular circumstances for the said functions to be exercised

by another public authority>

Provided that in issuing an order under this sub-article

the Minister shall give his reasons therefor.

Part VI

Criminal Offences

35. (1) Any person who>

(a) constructs, repairs, maintains, alters or controls

any apparatus or installation without having the

qualifications required for that purpose by or under this

Act<

(b) sells or offers for sale or provides or installs or

uses any installation or apparatus which does not conform

with such technical standards or specifications as are

required or established by or under this Act, or which he

knows, or has reasonable cause to believe, to be defective

or incompatible with the services for which it was sold,

provided, installed or used<

(c) provides any electronic communications service

or installs or operates any electronic communications

network or apparatus in breach of any provision of this

Act or in breach of any condition, restriction or limitation

imposed by or under this Act<

(d) uses any electronic communications network

or apparatus supplied by an undertaking for a purpose

other than that for which it was supplied, or neglects to

observe instructions which are issued by an undertaking

for the proper use of the electronic communications

network or apparatus or makes improper use thereof<

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

conviction, be liable to a fine (multa) not exceeding ten

thousand liri and in the case of a continuing offence for a

further fine (multa) not exceeding two hundred liri for each

day during which the offence continues.

(2) Any person who furnishes information to the

Authority or the Minister which he knows, or has reasonable

cause to believe to be false or misleading, or impedes or

obstructs the Authority or the Minister, in the performance of

any functions by or under this Act, shall be guilty of an offence

under this Act, and shall on conviction, be liable to a fine

(multa) not exceeding ten thousand liri or to imprisonment

for a period not exceeding six months, or to both such fine

and imprisonment.

(3) Any person who being a person employed or

detailed for duty with or attached to an undertaking>

(a) gives any information with regard to any

message with which he becomes acquainted by reason

of his office to any person not entitled to receive such

information<

(b) wilfully alters or suppresses any message or the

designation of the person to whom it is transmitted or to

whom it is addressed, without a good cause<

(c) wilfully omits, delays or obstructs the

transmission or delivery of any message or cancels or

destroys any message or an application for the

transmission of any message without a good cause<

(d) wilfully represents a message as having been

sent by a person other than the sender or as being

addressed to a person other than the addressee, or an

application for the transmission of a message as having

been made by a person other than the applicant, without

good cause<

(e) wilfully cancels or destroys any message not

addressed to him or an application for the transmission

of a message, without good cause< or

(f) unlawfully withdraws from the control of an

undertaking, or of an individual employed or detailed

for duty with, or attached to, an undertaking, a message

addressed to another person,

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

on conviction, to a fine (multa) not exceeding ten thousand

liri or to imprisonment for a period not exceeding six months,

or to both such fine and imprisonment.

(4) Any person who assaults or obstructs or impedes

any officer, employee or agent of an undertaking in the

exercise of his duties with such undertaking shall be guilty of

an offence under this Act, and shall on conviction be liable to

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

imprisonment for a period not exceeding three months, or to

both such fine and imprisonment.

36. Without prejudice to any other provision of this

Act the Minister may, after consultation with the Authority,

make regulations prescribing penalties for criminal offences

in relation to

against any regulations made under this Act, and such

regulations may>

(a) prescribe different fines (multi) for different

offences<

(b) prescribe fines (multi) calculated in accordance

with the duration of the commission of the offence>

Provided that any such regulations as may be made shall

not provide for a fine (multa) of more than ten thousand liri

or two hundred Maltese liri for each day during which the

offence persists.

37. (1) No proceedings for any criminal offence

for a criminal

under

this

Act other than offences under article 27 or under

paragraph (d) of subarticle (1) of article 35 shall be instituted

without the consent of the Authority or at its request.

(2) Notwithstanding anything contained in the

Criminal Code, an appeal to the court of competent jurisdiction

shall lie to the prosecution against any judgement delivered

in any proceedings with respect to an offence under this Act.”.

24. The heading “Part III – Savings and Transitory

Provisions” immediately preceding article 41 of the principal

Act shall be deleted.

25. Subarticle (1) of article 41 of the principal Act shall be deleted.

26. (1) Articles 42 to 44 (including the Schedule) and 45 to 47

of the principal Act shall be deleted.

(2) Subarticle (2) of article 41 shall be renumbered as the

whole provision of the new article 42.

27. Immediately after article 37 of the principal Act there shall

be substituted the following>-

“PART VII

Saving, Transitory and Exemptions

38. (1) The repeal of articles 43, 44 (including the

Schedule), 45, 46 and 47 of this Act as in force on the 1st

May, 2004 shall be without prejudice to anything done or

still to be done under the said articles.

(2) Any regulations made or kept in force by or under

any of the provisions of this Act as in force on the 1st May,

2004 and still in force on the said date shall, until other

provision is made under or by virtue of this Act, continue to

be in force and have effect.

(3) Any directives, decisions or designations however

so described made by the Authority under this Act as in force

on the 1st May, 2004 and still in force on the said date shall

continue to be in force until revoked or amended by the

Authority.

(4) The provisions of article 44 of this Act as in force

on the 1st May, 2004 shall continue to apply>

(i) in respect of anything done at the time when

they were in force and in respect of anything

consequential, arising out of or related thereto whenever

so done< and

(ii) mutatis mutandis in respect of the

implementation of this Act or any law or regulation with

the purpose of market liberalisation or compliance with

the international obligations of Malta with regard to

electronic communications services or electronic

communications networks.

39. (1) Notwithstanding anything in this Act or in

any regulations made thereunder, an undertaking shall

for access and continue to comply with any obligations concerning access

interconnection.

L.N. 151 of and interconnection under this Act as previously entitled as

2000. the Telecommunications (Regulation) Act and any regulations

made thereunder including under the Internet and Other Data

2000. Networks (Service Providers) Regulations, 1999, the

2001. Telecommunications Services (General) Regulations 2000,

the Interconnection (Obligations and Rates) Regulations,

2000, the Cable Systems (General) Regulations 2001, the

Telecommunications (Unbundled Access to the Local Loop)

Regulations, 2003, the Telecommunications (Leased Lines)

Regulations 2003, applicable to it immediately before the

coming into force of this Act until such time as the said

regulations are amended or as specific obligations pursuant

to a market analysis undertaken by the Authority in accordance

with the provisions of this Act, are imposed on any

undertaking designated under article 9 of this Act.

(2) The Authority shall give such notice as it

considers reasonable to any party affected by the amendment

or withdrawal of obligations referred to in subarticle (1) of

this article.

40. An undertaking shall continue to comply with any

Continuation

obligations applicable to it under this Act or any regulations

made thereunder as in force on the 1 May 2004 and still in

force on the said date relating to>

2000. (a) tariffs for the provision of access to and use

of the public telephone access under the

Telecommunications Services (General) Regulations,

2000,

(b) carrier selection or pre-selection under the

Telecommunications Services (General) Regulations,

2000,

(c) leased lines imposed under the

Telecommunications (Leased Lines) Regulations, 2003,

until such time as such obligations are amended or withdrawn

pursuant to a market analysis undertaken by the Authority in

accordance with the provisions of this Act.

41. (1) Any authorisation issued under this Act as

authorisations.

previously

entitled the Telecommunications (Regulation) Act

or any regulations made thereunder as in force on the 1 May

2004 and still in force on the said date shall upon the coming

into force of this article cease to have effect. The person

holding such an authorisation shall upon such coming into

force be deemed to be authorised to provide electronic

communications services or to establish, extend or provide

electronic communications networks under subtitle 5 to Part

II of this Act and under any regulations made under this Act

relating to authorisations>

Provided that such a person shall not later than ninety

days, after the coming into force of this article notify the

Authority in accordance with the provisions of subtitle 5 of

Part II of this Act and of any regulations made under this Act

relating to authorisations in electronic communications.

(2) Notwithstanding subarticle (1) of this article

where the Authority considers that the application of the said

subarticle would result in a reduction of rights or extension

of obligations on a person holding such an authorisation, the

Authority may extend the validity of an authorisation issued

under this Act for a period of not more than nine months

from the coming into force of this article, provided that it

considers that the rights of other persons are not adversely

affected thereby.”.

28. Article 48 of the principal Act shall be renumbered as article

42 and shall be amended as follows>-

(a) in subarticle (1) thereof the words “Telecommunications

systems and installations” shall be substituted with the words

“Electronic communications networks and, or services”<

(b) in subarticle (2) thereof –

(i) the words “any installation or telecommunications

system” shall be substituted with the words “any electronic

communications network and, or service” ,< and

(ii) after the words “body established by law” there shall

be added the words “or to a company in which the Government

of Malta holds at least ninety per cent of all paid-up share

capital” and after the words “for its own purposes” there shall

be added the words “or exclusively for the purposes of

Government”.

PART III

AMENDMENT OF THE POSTAL SERVICES ACT

29. (1) This Part amends the Postal Services Act, and it shall Amendment

of the Postal

be read and construed as one with the Postal Services Act, hereinafter Services Act,

in this Part referred to as “the principal Act”.

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

Minister responsible for communications may by notice in the Gazette

appoint and different dates may be so appointed for different provisions

and different purposes thereof.

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

30. article

2 of the principal

(a) immediately after the definition of “access points” there

Act.

shall be added the following new definition>

“Appeals Board” means the Communications Appeals

Board established under the Malta Communications Authority

Act<”<

(b) the definition of “Postal Services Appeals Board” and of

“Appeals Board” shall be deleted.

31. The words “Postal Services Appeals Board” wherever they General substitution

in the principal Act.

occur in the principal Act shall be substituted by the words “Appeals

32. For article 4 of the principal Act there shall be substituted

the following>-

4. Unless provided otherwise in this Act or in any other

“Appeals.

law, an appeal shall lie to the Appeals Board from a decision

of the Authority made under this Act or under any regulations

made under this Act, and such appeal shall be regulated by

the provisions of the Part VIII of the Malta Communications

Authority Act.”.

Articles 5 and 6 of the principal Act shall be deleted.

33.

34. Subarticle (5) of article 12 of the principal Act shall be deleted.

35. In paragraph (b) of subarticle (5) of article 17 of the principal

Act the words “ten kilogrammes<” shall be substituted with the words

“twenty kilogrammes<”.

36. For article 20 of the principal Act there shall be substituted

the following>-

“20. The services reserved for the universal services

provider designated in accordance with this Act, shall be those

established in accordance with the Fourth Schedule. The

Minister may, after consulting the Authority, amend by legal

notice in the Gazette the Fourth Schedule in order to comply

with the international obligations of Malta.”.

37. In article 23 of the principal Act for the words “by notice in

the Gazette ” there shall be substituted the words “by legal notice”.

38. The Third Schedule to the principal Act shall be amended as

follows>

(a) in paragraph 4 thereof the words “which shall be verified

by auditors engaged by the provider and the provider shall publish

a statement concerning compliance in two daily newspapers at least

once every calendar year.” shall be substituted with the words

“which shall be verified by auditors independent of the provider

and the expense of such auditors shall be paid by the provider. The

provider shall publish a statement concerning compliance in two

daily newspapers at least once every calendar year.”< and

(b) after paragraph 6 thereof there shall be added the

following new paragraph>

“7. The financial accounts of the universal service

provider shall be drawn up, submitted to audit by an

independent auditor and published by the provider in

accordance with the relevant Community and Maltese law

relating to commercial undertakings.”.

39. Immediately after the Third Schedule to the principal Act Addition of new

Fourth

there shall be added the following new schedule>

Schedule to the

principal Act.

“FOURTH SCHEDULE

(Article 20)

Reserved Services

1. The services which shall be reserved for the universal services

provider designated in accordance with this Act are the clearance,

sorting, transport and delivery of items of inland correspondence, cross-

border and direct mail, whether by accelerated delivery or not, within

both of the following weight and price limits –

(a) the weight limit shall be -

(i) from the 1st May, 2004, 100 grams, and

(ii) from the 1st January, 2006, 50 grams<

(b) these weights limits do not apply –

(i) from the 1st May, 2004, if the price is equal to or

more than, three times, and

(ii) from the 1st January, 2006, if the price is equal to or

more than two and a half times,

the public tariff for an item of correspondence in the

first weight step of the fastest category.

2. The weight or price restrictions referred to in this Schedule

shall not apply with regard to a free postal service for the blind or partially

sighted persons that may be provided by the universal provider.

3. Document exchange shall not be reserved.”.

PART IV

AMENDMENT OF THE UTILITIES AND SERVICES

(REGULATION OF CERTAIN WORKS) ACT

40. (1) This Part amends the Utilities and Services (Regulation

of Certain Works) Act, and it shall be read and construed as one with

the Utilities and Services (Regulation of Certain Works) Act, hereinafter

in this Part referred to as “the principal Act”.

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

Minister responsible for communications may by notice in the Gazette

appoint and different dates may be so appointed for different provisions

and different purposes thereof.

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

41. (a) for the definition of “electrical power and

telecommunications systems” there shall be substituted the

following>

“ “electrical power and electronic communications

networks” includes any electrical power or communication

line or instrument however so described used for the supply

of power or for electronic communications<”<

(b) after the definition of “electrical power and electronic

communications networks” there shall be inserted the following

new definitions -

“ “electronic communications networks” and “electronic

communications service” shall respectively have the same

meanings as under the Electronic Communications

(Regulation) Act<”<

(c) paragraph (b) in the definition of the word “Regulator”

shall be substituted with the following new paragraph –

(b) in the case of works in connection with any electronic

communications service and, or electronic communications

networks, the Malta Communications Authority as established

under the Malta Communications Authority Act<”<

(d) the definitions of “telecommunications” and

“telecommunication service” shall be deleted.

42. In article 3 of the principal Act for the words Amendment

article 3 of the

“telecommunications systems” there shall be substituted the words principal Act.

“electronic communications networks”.

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

43. article 4 of the

principal Act.

(a) the words “telecommunication service” wherever they

occur in the article shall be substituted with the words “electronic

communications service”<

(b) in subarticle (2) thereof, for the words “may also order”

there shall be substituted the words “may, after consultation with

the Malta Communications Authority, also order”<

(c) immediately at the end of subarticle (2) thereof, there

shall be added the following proviso>

“Provided that the Malta Transport Authority shall before

issuing an order under this subarticle, afford a reasonable

opportunity to all interested parties to express their views.”<

(d) in subarticle (3), the first proviso thereto shall be deleted

and in the second proviso thereto for the words “provided further

that” there shall be substituted the words “provided that”<

(e) in sub-article (6) thereof, for the words from “The

Regulator shall, after examining” to the words “the charges due to

the said recipient.” there shall be substituted the words “The

Regulator shall, after examining the facts and representations placed

before him and such other information as he may require, determine

the charges due to the recipient of an order made under subarticle

(2) of this article>

Provided that where the reference is made by a provider of an

electronic communications service, in relation to any works

concerning such service, the Regulator shall apply the provisions

of the Electronic Communications (Regulation) Act on dispute

resolution.”<

(f) after subarticle (9) thereof, there shall be added the

following new subarticles>

“(10) The Malta Transport Authority in the exercise

of its functions under this article in so far as these relate to

any works related to electronic communications, shall>

(a) act on the basis of transparent and publicly

available procedures, applied without discrimination and

without delay<

(b) follow the principles of transparency and non-

discrimination in attaching conditions to any rights it

may grant to a provider of an electronic communications

service< and

(c) give reasons for its decisions>

Provided that the Malta Transport Authority shall, in

relation to any fees it may be authorised to impose by or under

this Act relating to such works, ensure that such fees are

objectively justified, transparent, non-discriminatory and

proportionate in relation to their intended purpose>

Provided further that the Malta Transport Authority shall,

in relation to amendments that it may consider making to any

rights, conditions and procedures relating to such works,

ensure that any such amendment is only made in objectively

justified cases and in a proportionate manner. Before making

any such amendment the Malta Transport Authority shall give

notice in such manner as it considers appropriate of its

intention, inviting interested parties including users and

consumers, to make representations on the proposed

amendments within such period of not less than thirty days

as may be specified in the notice. The Malta Transport

Authority may in circumstances which it considers to be

exceptional, shorten such period.

(11) A person providing electronic communications

networks and, or services or associated facilities who is

aggrieved by any decision taken under this article by the Malta

Transport Authority or by the Regulator concerning any works

relating to electronic communications, may, after having

exhausted the remedy provided for in subarticles (5) and (6)

of this article where applicable, appeal to the Communications

Appeals Board established under the Malta Communications

Authority Act>

Provided that such a person in appealing shall also

explain his juridical interest in impugning the decision

appealed from>

Provided further that the Malta Communications

Authority shall also be notified with any appeal filed under

this subarticle and shall be entitled to make submissions

thereon.

The provisions of Part VIII of the Malta Communications

Authority Act, relating to the hearing of appeals by the Cap. 418.

Communications Appeals Board from decisions of the Malta

Communications Authority shall apply mutatis mutandis to

appeals filed under this article.”.

44. In article 11 of the principal Act the words “providing for Amendment of

article 11 of the

the manner in which” shall be substituted with the words “providing principal Act.

for any matter relating to rights of way including the fees that may be

charged for such rights and for the manner in which”.

PART V

AMENDMENT OF THE MALTA MARITIME

AUTHORITY ACT

45. (1) This Part amends the Malta Maritime Authority Act, Amendment of the

and it shall be read and construed as one with the Malta Maritime Malta

Authority Act, Cap.

Authority Act, hereinafter in this Part referred to as “the principal Act”. 352.

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

Minister responsible for communications may by notice in the Gazette

appoint and different dates may be so appointed for different provisions

and different purposes thereof.

Article 28 of the principal Act shall be amended as follows> Amendment of

46. article 28 of the

principal Act

(a)

subarticle (2) thereof shall be renumbered as subarticle

(3)<

(b) immediately after subarticle (1) thereof there shall be

added the following new subarticle>

“(2) The Minister, after consultation with the Authority

and the Malta Communications Authority, may make

regulations on any aspect relating to the use of

radiocommunications by merchant ships.”.

PART VI

AMENDMENT OF THE ELECTRONIC COMMERCE

ACT

47. (1) This Part amends the Electronic Commerce Act, and it

shall be read and construed as one with the Electronic Commerce 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 communications may by notice in the Gazette

appoint and different dates may be so appointed for different provisions

and different purposes thereof.

Article 4 of the principal Act shall be amended as follows>

(a) subarticle (1) thereof shall be substituted with the

following>

“(1) Unless otherwise prescribed, the provisions of

articles 5 to 15 shall not apply to those activities or areas as

are listed in the Fifth Schedule. The Minister may after

consultation with the competent authority, by notice in the

Gazette amend the Fifth Schedule.”< and

(b) in subarticle (2) thereof the words “after

consultation with the Minister as in the Minister’s opinion”

shall be substituted with the words “after consultation with

that Minister as in his opinion”.

After paragraph (a) of subarticle (1) of article 10 of the

principal Act there shall be added the following>

“Provided that when the order is placed, the originator has to

acknowledge the receipt of the addressee’s order without undue

delay and by electronic means<”.

Article 11 of the principal Act shall be substituted with the

following>

11. (1) Unless otherwise agreed by parties who are

“Information

requirements

not consumers, and without prejudice to any consumer rights

under the provisions of any other law, the originator shall

provide information in clear, comprehensive and

unambiguous terms regarding the matters set out in the First

Schedule, which Schedule may by notice in the Gazette, be

amended by the Minister after consultation with the competent

authority>

Provided that any such information shall be provided to

the addressee prior to the placement of the order by him.

(2) Unless parties who are not consumers have agreed

otherwise, an originator shall indicate which relevant codes

of conduct he subscribes to and provide information as to

how those codes can be consulted electronically.

(3) Where the originator provides terms and conditions

applicable to the contract to the addressee, the originator shall

make them available to the addressee in a way that allows the

addressee to store and reproduce them.

(4) The provisions of subarticles (1) and (2) of this

article shall not apply to contracts concluded exclusively by

exchange of electronic mail or by equivalent individual

communications.”.

After paragraph (g) of subarticle (1) of article 25 of the Amendment of

article 25 of the

principal Act there shall be added the following new paragraph>-

principal Act.

“(h) the compliance with any international obligation

entered into by Government in relation to any aspect of

electronic commerce regulated by or under this Act.”.

The First Schedule to the principal Act shall be amended as Amendment of the

First Schedule to the

principal Act.

(a)

paragraph (g) thereof shall be renumbered as paragraph

(b) after paragraph (f) thereof there shall be added the

following two new paragraphs>

“(g) the technical means for identifying and correcting

input errors prior to the placing of the order<

(h) the language or languages in which the contract

may be concluded<”.

After the Fourth Schedule to the principal Act there shall be Addition of Fifth

Schedule to the

added the following>

principal Act.

“FIFTH SCHEDULE

(Article 4)

Activities or areas listed in accordance with article 4

(a) the field of taxation<

(b) matters in relation to information society services covered

by any laws relating to data protection including the Data Protection

Act, the Processing of Personal Data (Telecommunications)

Regulations, 2003 and the Telecommunications (Personal Data and

Protection of Privacy) Regulations, 2003<

(c) questions in relation to agreements or practices governed

by competition law<

(d) the following activities of information society services>

i) the activities of notaries or equivalent professions to

the extent that they involve a direct and specific connection

with the exercise of public authority,

ii) the representation of a client and defence of his

interests before the courts,

iii) gambling activities which involve wagering a stake

with monetary value in games of chance, including lotteries

and betting transactions<

(e) contracts that create or transfer rights over immovable

property other than leasing rights<

(f) contracts of suretyship granted and on collateral security

furnished by persons acting for purposes outside their trade,

business or profession<

(g) the law governing the creation, execution, amendment,

variation or revocation of>

i) a will or any other testamentary instrument<

ii) a trust< or

iii) a power of attorney<

(h) any law governing the making of an affidavit or a solemn

declaration, or requiring or permitting the use of one for any

purpose<

(i) the rules, practices or procedures of a court or tribunal

however so described<

(j) any law relating to the giving of evidence in criminal

proceedings<

(m) any law relating to the protection of public health or

consumer interests in so far as this protection does not restrict the

freedom to provide information society services.”

PART VII

AMENDMENT OF THE WIRELESS TELEGRAPHY

ORDINANCE

(1) This Part amends the Wireless Telegraphy Ordinance, Amendment of the

and it shall be read and construed as one with the Wireless Telegraphy Wireless

Telegraphy

Ordinance, hereinafter in this Part referred to as “the principal law”. Ordinance,

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

Minister responsible for communications may by notice in the Gazette

appoint and different dates may be so appointed for different provisions

and different purposes thereof.

(1) The short title of the principal Law shall be deleted and Amendment of long

and short titles of

substituted by the words the “Radiocommunications Act”.

the principal law.

(2) The long title of the principal Law shall be deleted and

substituted with the following>

“An Act to regulate radiocommunications.”.

(3) In article 1 of the principal Law for the words “Wireless

Telegraphy Ordinance” there shall be substituted the words

“Radiocommunications Act”.

Unless otherwise provided in this Part the following words Substitution of

certain words in the

wherever they occur in the principal Law shall be substituted as follows> principal law.

(a) the word “Ordinance” with the word “Act”<

(b) the words “wireless telegraphy” or “wireless telegraph”

with the word “radiocommunications”.

In article 2 of the principal Law the definition of “Minister”

shall be substituted with the following>

“ “Minister” means the Minister responsible for

communications and to the extent of any delegation made in terms

of article 2A includes the Malta Communications Authority or any

body established by law so delegated in terms of the said article.”.

The following new article 2A shall be added after article 2

of the principal Law>

2A. (1) The Minister may by order in the Gazette

of powers by

delegate any of his powers or functions under this Act, other

than the power to make regulations, to the Malta

Communications Authority or to any other body established

by law or to a Government agency and in making any such

delegation the Minister may delegate different powers and/

or functions to different bodies as stated above>

Provided that in delegating any such powers and, or

functions the Minister may specify the purpose and limits, if

any, of such delegation.

(2) The Minister shall be entitled to revoke or vary

any delegation made in terms of subarticle (1) by order in the

Gazette.”.

In article 3(1) of the principal law the words “Provided that

no licence shall be required for sound only broadcast receivers.” shall

be substituted with the following>

“Provided that no licence shall be required for sound only

broadcast receivers>

Provided further that the Minister may, after consultation with

the Malta Communications Authority, by order in the Gazette

exempt certain categories of apparatus from the requirements of

this article.”.

Article 6 of the principal Law shall be amended as follows>

(a) subarticle (1) thereof shall be amended as follows>

(i) the numeral (1) shall be deleted<

(ii) the words “one thousand liri” shall be substituted

with the words “two thousand liri”<

(iii) the words “two thousand liri” shall be substituted

with the words “four thousand liri”<

(iv) the proviso thereto shall be substituted with the

following new proviso>

“Provided that notwithstanding the above

provisions, the Minister may make regulations in relation

to any procedures for the out-of-court settlement of

disputes that may be adopted, including any agreement

in writing that may be entered into with a person accused

of an offence under this article, and any agreement for

the payment of a fine in lieu of prosecution for an offence

under this Act.”< and

(b) subarticles (2) and (3) thereof shall be deleted.

In article 7 of the principal law the definition of “wireless Amendment of

article 7 of the

telegraphy inspector” shall be substituted with the following new principal Law

“ “maritime radiocommunications inspector” means an officer

appointed by the Minister for the purposes of this Part of the Act,

and any references to inspector in this Part shall be construed as

referring to any such inspector.”.

In article 8 of the principal Law the words “shall be provided Amendment of

article 8 of the

with a wireless telegraph installation and a licence to keep and use the principal Law

same, and shall maintain a wireless telegraph service” shall be substituted

with the words “shall be provided with a radiocommunications

installation being a Global Maritime Distress Safety System (GMDSS)

or such other radiocommunications installation as the Minister may

prescribe in respect of any category of ships and a licence to keep and

use the same, and shall maintain a radiocommunications service”.

In subarticle (1) of article 10 of the principal Law the words Amendment of

article 10 of the

“a wireless telegraph installation” shall be substituted with the words principal Law

“a radiocommunications installation”.

After article 18 of the principal Law there shall be added the Addition of new

Part IV to the

following new Part>

principal law

“PART IV

Miscellaneous

19. The Minister may make regulations for the better

carrying out of any of the provisions of this Act and without

prejudice to the generality of the aforesaid power such

regulations may in particular provide for>

(a) the manner in which radiocommunications

apparatus is to be installed, operated, maintained,

protected or controlled<

(b) the technical standards or specifications to be

observed with respect to radiocommunications

apparatus<

(c) any matter enabling the Minister to regulate

and provide for general authorisations relating to

radiocommunications apparatus< and

(d) any matter that may be required for the

purpose of complying with any international obligations

of Malta relating to radiocommunications including those

relating to standards in Malta.

20. The Prime Minister may by order in the Gazette

exempt from the provisions of this Act any

radiocommunicaitons apparatus used by the State to satisfy

the exigencies of defence, public security or civil protection

requirements.”.

The Schedule to the principal Law shall be amended as

(a) the words “Wireless Telegraphy (Broadcast Licence

Charges) Regulations, 1962” wherever they occur shall be

substituted with the words “Radiocommunications (Broadcast

Licence Charges) Regulations, 1962”<

(b) the words “by the Hotels and Catering Establishments

Board” wherever they occur in the First Schedule thereto shall be

substituted with the words “Malta Tourism Authority”.

PART VIII

AMENDMENT OF THE BROADCASTING

AUTHORITY ACT

In paragraph 3 of Part D of the Fourth Schedule to the Amendment of the

Broadcasting Authority Act, the words “Twenty per cent of the above Broadcasting

Authority Act,

fees shall be automatically paid by the Authority to the Minister Cap. 350.

responsible for Wireless Telegraphy” shall be substituted by the words

“The Broadcasting Authority shall pay to the Malta Communications

Authority such reasonable fees as may be due for those services which

the Authority may require”.

Passed by the House of Representatives at Sitting No. 162 of the 26th July,

2004. A NTON T ABONE

R ICHARD J. C AUCHI

Clerk to the House of Representatives