MT
ACT No. XVII of 2009 AN ACT to amend various financial services Laws, and to implement Directive 2007/44/EC.
Table of Provisions (39)
Statutory Text (39 Articles)
I assent.
(L.S.) G eorge A bela
President
6th November, 2009
ACT No. XVII of 2009
AN ACT to amend various financial services Laws, and to
implement Directive 2007/44/EC.
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:-
The short title of this Act is the Various Financial Laws
(Amendment) Act, 2009.
PART I
This Part amends the Investment Services Act, and it
shall be read and construed as one with the said Act, hereinafter in
this Part referred to as “the principal Act”.
In article 2 of the principal Act
(a) immediately after the definition “EEA state”, there
shall be inserted the following new definition
““European Investment Firm” means an investment
firm as defined in article 4(1) of the Directive and as
authorized by its European regulatory authority within
the meaning of article 5 of the Directive or authorized
by a European regulatory authority in an EEA State;”;
(b) for the definition “qualifying shareholding”, there
shall be substituted the following
“ “qualifying shareholding” means a direct or
indirect holding in a company which represents ten per
centum or more of the share capital or of the voting
rights referred to in Articles 9 and 10 of Directive
2004/109/EC of the European Parliament and of the
Council of the 15 December 2004 on the harmonization
of transparency requirements in relation to information
about issuers whose securities are admitted to trading
and amending Directive 2001/34/EC taking into account
the conditions regarding the aggregation thereof laid
down in Article 12(4) and (5) of that Directive, or which
makes it possible to exercise a significant influence over
the management of the company in which that holding
subsists, and “qualifying shareholder” shall be construed
accordingly
Provided that in determining whether the criteria
for a qualifying shareholding are fulfilled, the competent
authority shall not take into account voting rights or
shares which investment services licence holders,
European Investment Firms or credit institutions
may hold as a result of providing the service of
underwriting or placing of financial instruments on a
firm commitment basis in terms of point 6 of Section A
to Annex 1 to the Directive, provided that those rights
are, on the one hand, not exercised or otherwise used to
intervene in the management of the issuer and, on the
other, disposed of within one year of acquisition;”; and
(c) immediately after the definition “unit”, there shall
be inserted the following new definition
“ “working days” shall not include Saturdays and
the days referred to in the National Holidays and Other
Public Holidays Act.”.
Article 9A of the principal Act shall be amended as Amendment of article
(a) in subarticle (2) thereof, for the words “for
recognition and” there shall be substituted the words “and
conditions for granting recognition, providing for the
refusal of recognition and for the variation, cancellation and
supervision of recognition and”;
(b) paragraph (viii) of subarticle (2) thereof shall be
renumbered as paragraph (ix) and immediately after paragraph
(vii) there shall be added the following new paragraph
“(viii) to provide for the imposition of
administrative penalties up to a maximum of 45,000
euro or for other administrative sanctions in case of
any breach of the provisions of this article or of the
applicable Investment Services Rules or of any of the
conditions attached to a recognition certificate, where
any.”; and
(c) immediately after subarticle (2) thereof, there shall
be added the following new subarticle
“(3) Where the competent authority refuses,
varies, cancels or suspends a recognition issued in terms
of this article or imposes an administrative penalty in
terms of the applicable Investment Services Rules, an
appeal shall lie to the Financial Services Tribunal and
the provisions of article 19(3) of this Act shall apply to
such appeal.”.
For article 10 of the principal Act, there shall be
substituted the following
(1) Notwithstanding anything contained in
“Participation
any other law, any person or persons acting in concert
(hereinafter referred to in this Act as the “proposed
acquirer”) who have taken a decision either to
(a) acquire, directly or indirectly, a
qualifying shareholding in an investment services
licence holder;
(b) increase, directly or indirectly, an
existing shareholding which is not a qualifying
shareholding so as to cause it to become a
qualifying shareholding in an investment services
licence holder; or
(c) further increase, directly or indirectly,
such qualifying shareholding in an investment
services licence holder as a result of which the
proportion of the voting rights or of the capital
held would reach or exceed twenty per centum,
thirty per centum or fifty per centum or so that the
investment services licence holder would become
its subsidiary,
(hereinafter referred to in this Act as the “proposed
acquisition”), shall notify the competent authority in
writing of any such decision, indicating the size of
the intended shareholding and providing any relevant
information as and in the manner that the competent
authority may by Investment Services Rules require,
including the form in which such notification shall be
made and the criteria adopted by the competent authority
in determining whether such person is a fit and proper
person.
(2) Notwithstanding anything contained in any
other law, any person who has taken a decision either to
(a) dispose, directly or indirectly, of a
qualifying shareholding in an investment services
licence holder;
(b) reduce, directly or indirectly, a
qualifying shareholding so as to cause it to cease to
be a qualifying shareholding; or
(c) reduce, directly or indirectly, a
qualifying shareholding so that the proportion of
the voting rights or of the capital held would fall
below twenty per centum, thirty per centum or
fifty per centum or so that the investment services
licence holder would cease to be its subsidiary,
shall notify the competent authority in writing of
any such decision indicating the size of the intended
shareholding and providing any relevant information as
and in the manner that the competent authority may, by
Investment Services Rules require.
(3) Subarticles (1) and (2) shall apply irrespective
of whether or not any of the relevant shares are shares
listed on a regulated market within the meaning of the
Financial Markets Act or on an equivalent market which
is not situated in a Member State or an EEA State.
(4) It shall be the duty of an investment services
licence holder to notify the competent authority
forthwith upon becoming aware that any person has
taken any action set out in subarticle (1) or (2).
(5) If any person or any investment services
licence holder takes or decides to take any action set out
in subarticle (1) or (2) without notifying the competent
authority or obtaining its approval in terms of article
10A, then, without prejudice to any other penalty which
may be imposed under this Act, the competent authority
shall have the power to make an order
(a) restraining such person or investment
services licence holder from taking, or continuing
with, such action;
(b) declaring such action to be void and of
no effect;
(c) requiring such person or investment
services licence holder to take such steps as may
be necessary to restore the position existing
immediately before the action was taken;
(d) restraining such person or investment
services licence holder from exercising any rights
which such action would, if lawful, have conferred
upon them, including the right to receive any
payment or to exercise any voting rights attaching
to the shares acquired; or
(e) restraining such person or investment
services licence holder from taking any similar
action or any other action within the categories set
out in subarticles (1) and (2).
(6) Without prejudice to any other provision
of this Act, where the influence exercised by any
person acquiring or proposing to acquire a qualifying
shareholding is, or is likely to, operate against the
sound and prudent management of an investment
services licence holder, the competent authority may
issue a notice of objection and exercise any of the
powers assigned to it under this Act to put an end to
such situation, including the power to issue directives
as it may deem reasonable and appropriate in the
circumstances.
(7) A copy of any notice served on the person
concerned in terms of subarticle (6) shall be served on
the company to whose shares it relates.
(8) The competent authority, may, by means of
Investment Services Rules issued under this Act, indicate
the circumstances when persons are to be regarded as
“acting in concert.”.
6. Immediately after article 10 of the principal Act, there
shall be inserted the following new article
(1) The competent authority shall,
promptly and in any event within two working days
following receipt of the notification required under
subarticle (1) of article 10, as well as following the
possible subsequent receipt of the information referred
to in subarticle (4), acknowledge receipt thereof in
writing to the proposed acquirer.
(2) The competent authority shall have a
maximum of sixty working days as from the date of the
written acknowledgement of receipt of the notification
required under subarticle (1) of article 10 and all
documents required by the competent authority to be
attached to such notification (hereinafter referred to
in the Act as the “assessment period”) to carry out an
assessment on the basis of such information as may be
determined by Investment Services Rules issued for this
purpose.
(3) The competent authority shall inform the
proposed acquirer of the date of the expiry of the
assessment period at the time of acknowledging receipt.
(4) The competent authority may, during the
assessment period, if necessary and no later than the
fiftieth working day of such period, request any further
information that is necessary to complete the assessment.
Such a request shall be made in writing and shall specify
the additional information needed.
(5) During the period between the date of request
for additional information by the competent authority
and the receipt of a response thereto by the proposed
acquirer, the assessment period shall be interrupted. The
interruption period shall not exceed twenty working
days. Any further requests by the competent authority
for completion or clarification of the information shall
be at its discretion but shall not result in an interruption
of such period.
(6) The competent authority may extend the
interruption referred to in subarticle (5) up to thirty
working days if the proposed acquirer is
(a) situated or regulated in countries that are
not Member States or EEA States; or
(b)
a person not subject to supervision
under
(i)
the Directive;
(ii) Council Directive 85/611/EEC
on the coordination of laws, regulations
and administrative provisions relating to
undertakings for collective investment in
transferable securities (UCITS);
(iii) Council Directive 92/49/EEC of
18 June 1992 on the coordination of laws,
regulations and administrative provisions
relating to direct insurance other than life
assurance and amending Directives 73/239/
EEC and 88/357/EEC (third non-life
insurance Directive);
(iv) Directive 2002/83/EC of the
European Parliament and of the Council of 5
November 2002 concerning life assurance;
(v) Directive 2005/68/EC of the
Eurpean Parliament and Council of 16
November, 2005 on reinsurance amending
Council Directives 73/239/EEC, 92/49/EEC
as well as Directives 98/78/EC and 2002/83/
EC; or
(vi) Directive 2006/48/EC of the
European Parliament and of the Council of
14 June, 2006 relating to the taking up and
pursuit of the business of credit institutions
(recast).
(7) The competent authority shall, upon
completion of the assessment referred to in subarticle
(2) and not later than the date of the expiry of the
assessment period, issue a notice
(a) granting unconditional approval to the
proposed acquisition;
(b) granting approval to the proposed
acquisition subject to such conditions as the
competent authority may deem appropriate; or
(c)
refusing the proposed acquisition.
(8) In making the assessment referred to in
subarticle (2), the competent authority shall neither
impose any prior conditions in respect of the level of
shareholding that must be acquired nor examine the
proposed acquisition in terms of the economic needs of
the market.
(9) The competent authority may refuse the
proposed acquisition only if there are reasonable grounds
for doing so on the basis of the criteria set out in the
Investment Services Rules referred to in subarticle (1) of
article 10 or if the information provided by the proposed
acquirer is incomplete.
(10) If the competent authority decides to refuse
the proposed acquisition, it shall, within two working
days, and not exceeding the assessment period, inform
the proposed acquirer in writing specifying the reasons
for such decision. The competent authority may, whether
at the request of such proposed acquirer or not, issue a
public statement indicating such reasons.
(11) If the competent authority does not refuse
the proposed acquisition in writing within the assessment
period, such proposed acquisition shall be deemed to be
approved.
(12) Without prejudice to the provisions of article
22, where a qualifying shareholding in an investment
services licence holder is acquired notwithstanding the
refusal of the competent authority, the exercise of the
corresponding voting rights shall be suspended and any
of the votes cast in contravention of this subarticle shall
be null and void.
(13) The competent authority may fix a maximum
period for concluding the proposed acquisition and
extend it where appropriate.
(14) Notwithstanding
the
provisions
of
subarticles (1) to (6), where two or more proposals to
acquire or increase qualifying shareholdings in the same
investment services licence holder have been notified
to the competent authority, the latter shall treat the
proposed acquirers in a non-discriminatory manner.”.
7. Immediately after article 10A of the principal Act, there
shall be inserted the following new article
(1) The competent authority shall work
with European
in
full
consultation with European regulatory authority
or overseas regulatory authorities when carrying out the
assessment referred to in subarticle (2) of article 10A if
the proposed acquirer is one of the following
(a) a credit institution, an assurance
undertaking, insurance undertaking, reinsurance
undertaking, investment firm or UCITS
management company authorised in another
Member State or EEA State or in a sector other
than that in which the acquisition is proposed;
(b)
the parent undertaking of a credit
institution, assurance undertaking, insurance
undertaking, reinsurance undertaking, investment
firm or UCITS management company authorised in
another Member State or EEA State or in a sector
other than that in which the acquisition is proposed;
or
(c) a person controlling a credit institution,
assurance undertaking, insurance undertaking,
reinsurance undertaking, investment firm or UCITS
management company authorised in another
Member State or EEA State or in a sector other
than in which the acquisition is proposed.
(2) The competent authority shall, without undue
delay, provide any information which is essential or
relevant for the assessment referred to in subarticle
(2) of article 10A to the European regulatory authority
or overseas regulatory authority requesting such
information. Upon request, the competent authority shall
communicate to the European regulatory authority or
overseas regulatory authority all relevant information
and shall communicate on its own initiative all essential
information. A decision by the competent authority
in terms of article 10A shall indicate any views or
reservations expressed by the European regulatory
authority or overseas regulatory authority responsible
for the proposed acquirer.”.
8. Immediately after article 10B of the principal Act, there
shall be added the following new article
(1) Notwithstanding anything contained
reconstructions,
in any other law, and without prejudice to subarticles
changes in share (1) and (2) of article 10, the consent of the competent
capital or voting
authority given in writing shall be required before an
investment services licence holder may lawfully
(a) sell or dispose of its business or any
significant part thereof;
(b) merge with any other company, whether
licensed under this Act or not;
(c) undergo any reconstruction or division;
or
(d) increase or reduce its nominal or issued
share capital or effect any material change in
voting rights.
(2) It shall be the duty of all directors and
qualifying shareholders of an investment services licence
holder to notify the competent authority forthwith in
writing, upon becoming aware that such investment
services licence holder intends to take any of the actions
set out in subarticle (1).
(3) Within three months of receipt of such
notification or receipt of such information as the
competent authority may lawfully require, whichever is
the later, the competent authority shall issue a notice
(a) granting unconditional consent to the
taking of the action;
(b) granting consent to the taking of the
action subject to such conditions as the competent
authority may deem appropriate; or
(c)
refusing consent to the taking of the
action,
and if it refuses to grant consent, it shall inform the
person or the investment services licence holder
concerned in writing for the reason for its refusal.
(4) If any person or any investment services
licence holder takes or decides to take any action set
out in subarticle (1) without obtaining the consent of
the competent authority, then, without prejudice to any
other penalty which may be imposed under this Act, the
competent authority shall have the power to make an
order
(a) restraining such person or investment
services licence holder from taking, or continuing
with, such action;
(b)
declaring such action to be void and of
no effect;
(c) requiring such person or investment
service licence holder to take such steps as may
be necessary to restore the position existing
immediately before the action was taken;
(d) restraining such person or investment
services licence holder from exercising any rights
which such action would, if lawful, have conferred
upon them, including the right to receive any
payment or to exercise any voting rights attaching
to the shares acquired;
(e) restraining such person or investment
services licence holder from taking any similar
action or any other action within the categories set
out in subarticle (1).”.
9. For paragraph (e) of subarticle (1) of article 19 of the
principal Act there shall be substituted by the following
“(e) any notice issued or any order made in terms of
articles 10, 10A and 10C;”.
PART II
10. This Part amends the Banking Act, and it shall be read
and construed as one with the said Act, hereinafter in this Part
referred to as “the principal Act”.
Subarticle (1) of article 2 of the principal Act shall be
amended as follows
(a) for the definition “close links”, there shall be
substituted the following new definition
“ “close links” means a situation in which two or
more persons are linked in any of the following ways
(a) by participation, in the form of direct
ownership or by way of control, of twenty per
centum or more of the voting rights or capital of a
body corporate; or
(b) by control, through the relationship
between a parent undertaking and a subsidiary
undertaking as defined in article 2 (2) of the
Companies Act, or a similar relationship between
any natural or legal person and an undertaking; or
(c) permanently to one and the same third
person by a control relationship;”;
(b)
the definition “control” shall be deleted;
(c)
the definition “equity share” shall be deleted;
(d) for the definition “initial capital”, there shall be
substituted the following new definition
“ “initial capital” means paid up capital and
reserves as defined in a Banking Rule on own funds;”;
(e) for the definition “Malta’s international
commitments”, there shall be substituted the following new
definition
“ “Malta’s international commitments” means
commitments, responsibilities and obligations arising
out of European Community law, or membership of,
or affiliation to, or relationship with, any international,
global or regional organisations or grouping of countries
or out of any treaty, convention or other international
or reciprocity agreement, however called, whether
bilateral or multilateral, to which Malta or the competent
authority is a party;”;
(f) for the definition “qualifying shareholding”, there
shall be substituted the following new definition
“ “qualifying shareholding” means a direct or
indirect holding in a company which represents ten per
centum or more of the share capital or of the voting
rights, taking into account the voting rights as set out
in Articles 9 and 10 of Directive 2004/109/EC of the
European Parliament and of the Council of 15 December
2004 on the harmonisation of transparency requirements
in relation to information about issuers whose securities
are admitted to trading and amending Directive 2001/34/
EC, as well as the conditions regarding aggregation
thereof laid down in Article 12 (4) and (5) of that
Directive, or which makes it possible to exercise a
significant influence over the management of the
company in which that holding subsists, and “qualifying
shareholder” shall be construed accordingly
Provided that, in determining whether the criteria
for a qualifying shareholding are fulfilled, the competent
authority shall not take into account voting rights or
shares which investment firms or credit institutions may
hold as a result of providing the underwriting of financial
instruments and, or placing of financial instruments on a
firm commitment basis in terms of point 6 of Section
A to Annex 1 to Directive 2004/39/EC, provided that
those rights are, on the one hand, not exercised or
otherwise used to intervene in the management of the
issuer and, on the other, disposed of within one year of
acquisition.”;
(g)
the definition “significant shareholding” shall be
deleted;
(h) immediately after the definition “third country”,
there shall be inserted the following new definition
“ “working days” shall not include Saturdays and the days
referred to in the National Holidays and Other Public Holidays Cap. 252.
In the English text of the proviso to subarticle (2) of Amendment of article
article 5 of the principal Act, for the words “entitled to exercise
their rights under European Community Law”, there shall be
substituted the words “entitled to exercise its rights under European
Community Law”.
In subarticle (1) (b) of article 7 of the principal Act, for Amendment of article
the words “credit institution in Malta;”, there shall be substituted 7 of the principal Act.
the words “credit institution in Malta and such persons are of
sufficiently good repute and have sufficient experience to perform
such duties;”.
In subarticle (2)(d) of article 9 of the principal Act, for Amendment of article
the words “sufficient own funds;”, there shall be substituted the
words “sufficient own funds in terms of article 16A of this Act;”.
In paragraph (h) of article 10 of the principal Act, for
the words “to issue any notice or make any order under article
13;”, there shall be substituted the words “to issue any notice or
make any order under articles 13, 13A and 13C;”.
Immediately after subarticle (2) of article 11 of the
principal Act, there shall be inserted the following new subarticle
“(3) A credit institution licensed in Malta shall be
entitled to exercise its rights under the European Passport
Rights for Credit Institutions Regulations, 2004.”.
For article 13 of the principal Act there shall be
substituted the following
13. (1) Notwithstanding anything contained in
“Participation
any other law, any person or persons acting in concert
(hereinafter referred to in this Act as the “proposed
acquirer”), who have taken a decision either to
(a) acquire, directly or indirectly,
a
qualifying shareholding in a credit institution;
(b) increase, directly or indirectly, an
existing shareholding which is not a qualifying
shareholding so as to cause it to become a
qualifying shareholding in a credit institution; or
(c) further increase, directly or indirectly,
such qualifying shareholding in a credit institution
as a result of which the proportion of the voting
rights or of the capital held would reach or exceed
twenty per centum, thirty per centum or fifty
per centum or so that the credit institution would
become its subsidiary,
(hereinafter referred to in this Act as the “proposed
acquisition”), shall notify the competent authority in
writing of any such decision, indicating the size of
the intended shareholding and providing any relevant
information as and in the manner that the competent
authority may by a Banking Rule require, including
the form in which such notification shall be made and
the criteria adopted by the competent authority in
determining whether such person is a suitable person.
(2) Notwithstanding anything contained in any
other law, any person who
(a) acquires, directly or indirectly, at least
five per centum but less than ten per centum of
the share capital or of the voting rights in a credit
institution; or
(b) increases, directly or indirectly, an
existing shareholding so that the proportion of the
voting rights or of the capital held would amount
to at least five per centum but less than ten per
centum,
shall inform the competent authority in writing,
indicating the size of the shareholding and providing
any relevant information as and in the manner that the
competent authority may by a Banking Rule require.
Such Banking Rule may provide, inter alia, general
guidance as to when the shareholding would be deemed
to result in significant influence.
(3) Notwithstanding anything contained in any
other law, any person who has taken a decision either to
(a) dispose, directly or indirectly, of a
qualifying shareholding in a credit institution;
(b) reduce, directly or indirectly, a
qualifying shareholding so as to cause it to cease to
be a qualifying shareholding; or
(c) reduce, directly or indirectly, a
qualifying shareholding so that the proportion of
the voting rights or of the capital held would fall
below twenty per centum, thirty per centum or fifty
per centum or so that the credit institution would
cease to be its subsidiary,
shall notify the competent authority in writing of
any such decision indicating the size of the intended
shareholding and providing any relevant information as
and in the manner that the competent authority may by a
Banking Rule require.
(4) Subarticles (1), (2) and (3) shall apply
irrespective of whether or not any of the relevant
shares are shares listed on any regulated market within
the meaning of the Financial Markets Act or on an
equivalent market in a third country.
(5) It shall be the duty of a credit institution and
of the directors thereof, to notify the competent authority
forthwith upon becoming aware that any person decides
to take any of the actions set out in subarticles (1), (2) or
(3).
(6) If any person takes or decides to take any
action set out in subarticle (1) or (3) without notifying
the competent authority or obtaining its approval in
terms of article 13A , then, without prejudice to any
other penalty which may be imposed under this Act, the
competent authority shall have the power to make an
order
(a) restraining such person or credit
institution from taking, or continuing with, such
action;
(b) declaring such action to be void and of
no effect;
(c) requiring such person or credit
institution to take such steps as may be necessary
to restore the position existing immediately before
the action was taken;
(d) restraining such person or credit
institution from exercising any rights which such
action would, if lawful, have conferred upon them,
including the right to receive any payment or to
exercise any voting rights attaching to the shares
acquired;
(e) restraining such person or credit
institution from taking any similar action or
any other action within the categories set out in
subarticles (1) and (3).
(7) Without prejudice to any other provision
of this Act, where the influence exercised by any
person acquiring or proposing to acquire a qualifying
shareholding is, or is likely to, operate against the
sound and prudent management of a credit institution,
the competent authority may exercise any of its powers
under this Act to put an end to such situation, including
the power to issue directives as it may deem reasonable
in the circumstances.
(8) The competent authority, may, by means
of a Banking Rule issued under this Act indicate the
circumstances when persons are to be regarded as
“acting in concert.”.
Immediately after article 13 of the principal Act, there Addition of new
shall be inserted the following new articles
13A. (1) The competent authority shall,
promptly and in any event within two working days
following receipt of the notification required under
subarticle (1) of article 13, as well as following the
possible subsequent receipt of the information referred
to in subarticle (4), acknowledge receipt thereof in
writing to the proposed acquirer.
(2) The competent authority shall have a
maximum of sixty working days as from the date of the
written acknowledgement of receipt of the notification
required under subarticle (1) of article 13 and all
documents required by the competent authority to be
attached to such notification (hereinafter referred to
in this Act as the “assessment period”) to carry out the
assessment on the basis of such information as may be
determined by a Banking Rule issued for this purpose.
(3) The competent authority shall inform
the proposed acquirer of the date of the expiry of the
assessment period at the time of acknowledging receipt.
(4) The competent authority may, during
the assessment period, if necessary and no later than
on the fiftieth working day of such period, request any
further information that is necessary to complete the
assessment. Such a request shall be made in writing and
shall specify the additional information needed.
(5) During the period between the date of
request for additional information by the competent
authority and the receipt of a response thereto by the
proposed acquirer, the assessment period shall be
interrupted. The interruption period shall not exceed
twenty working days. Any further requests by the
competent authority for completion or clarification of
the information shall be at its discretion but shall not
result in an interruption of such period.
(6) The competent authority may extend
the interruption period referred to in subarticle (5) up to
thirty working days if the proposed acquirer is
(a)
situated or regulated in a third country;
or
(b)
a person not subject to supervision
under
(i)
the Directive;
(ii) Council Directive 85/611/EEC
of 20 December 1985 on the coordination
of laws, regulations and administrative
provisions relating to undertakings for
collective investment in transferable securities
(UCITS);
(iii) Council Directive 92/49/EEC of
18 June 1992 on the coordination of laws,
regulations and administrative provisions
relating to direct insurance other than life
assurance and amending Directives 73/239/
EEC and 88/357/EEC (third non-life
insurance Directive);
(iv) Directive 2002/83/EC of the
European Parliament and of the Council of 5
November 2002 concerning life assurance;
(v) Directive 2004/39/EC of the
European Parliament and of the Council of 21
April 2004 on markets in financial instruments
amending Council Directives 85/611/EEC and
93/6/EEC and Directive 2000/12/EC of the
European Parliament and of the Council and
repealing Council Directive 93/22/EEC; or
(vi) Directive 2005/68/EC of the
European Parliament and of the Council of 16
November 2005 on reinsurance and amending
Council Directives 73/239/EEC, 92/49/EEC
as well as Directives 98/78/EC and 2002/83/
EC.
(7) The competent authority shall, upon
completion of the assessment referred to in subarticle
(2) and not later than the date of the expiry of the
assessment period, issue a notice
(a) granting unconditional approval to the
proposed acquisition;
(b) granting approval to the proposed
acquisition subject to such conditions as the
competent authority may deem appropriate; or
(c)
refusing the proposed acquisition.
(8) In making the assessment referred to
in subarticle (2), the competent authority shall neither
impose any prior conditions in respect of the level of
shareholding that must be acquired nor examine the
proposed acquisition in terms of the economic needs of
the market.
(9) The competent authority may refuse
the proposed acquisition only if there are reasonable
grounds for doing so on the basis of the criteria set
out in the Banking Rule referred to in subarticle (1) of
article 13 or if the information provided by the proposed
acquirer is incomplete.
(10)
If the competent authority decides to
refuse the proposed acquisition, it shall, within two
working days, and not exceeding the assessment period,
inform the proposed acquirer in writing specifying the
reasons for such decision. The competent authority may,
whether at the request of such proposed acquirer or not,
issue a public statement indicating such reasons.
(11) If the competent authority does not
refuse the proposed acquisition in writing within the
assessment period, such proposed acquisition shall be
deemed to be approved.
(12) Without prejudice to any other
penalty which may be imposed under the Act, where a
qualifying shareholding in a credit institution is acquired
notwithstanding the refusal of the competent authority,
the exercise of the corresponding voting rights shall be
suspended and any of the votes cast in contravention of
this subarticle shall be null and void.
(13) The competent authority may fix
a maximum period for concluding the proposed
acquisition and extend it where appropriate.
(14) Notwithstanding the provisions of
subarticles (1) to (6) of this article, where two or more
proposals to acquire or increase qualifying shareholdings
in the same credit institution have been notified to the
competent authority, the latter shall treat the proposed
acquirers in a non-discriminatory manner.
13B. (1) The competent authority shall work
with overseas
in full consultation with overseas regulatory authorities
when carrying out the assessment referred to in
subarticle (2) of article 13A if the proposed acquirer is
one of the following
(a) a
credit
institution,
assurance
undertaking, insurance undertaking, reinsurance
undertaking, investment firm or UCITS
management company authorised in another
Member State or EEA State or in a sector other
than that in which the acquisition is proposed;
(b)
the parent undertaking of a credit
institution, assurance undertaking, insurance
undertaking, reinsurance undertaking, investment
firm or UCITS management company authorised in
another Member State or EEA State or in a sector
other than that in which the acquisition is proposed;
or
(c) person controlling a credit institution,
assurance undertaking, insurance undertaking,
reinsurance undertaking, investment firm or UCITS
management company authorised in another
Member State or EEA State or in a sector other
than that in which the acquisition is proposed.
(2) The competent authority shall, without
undue delay, provide any information which is
essential or relevant for the assessment referred to in
subarticle (2) of article 13A to the overseas regulatory
authority requesting such information. Upon request,
the competent authority shall communicate to the
overseas regulatory authority all relevant information
and shall communicate on its own initiative all essential
information. A decision by the competent authority in
terms of article 13A of this Act shall indicate any views
or reservations expressed by the overseas regulatory
authority responsible for the proposed acquirer.
13C. (1) Notwithstanding anything contained
tions, divisions in any other law and without prejudice to subarticles
and changes in (1) and (3) of article 13, the consent of the competent
share capital or
voting rights. authority given in writing shall be required before any
credit institution may lawfully
(a) sell or dispose of its business or any
significant part thereof;
(b) merge with any other company, whether
a credit institution or otherwise;
(c) undergo any re-construction or division;
or
(d) increase or reduce its nominal or issued
share capital or effect any material change in the
voting rights.
(2) It shall be the duty of all directors and
qualifying shareholders of a credit institution to notify
the competent authority forthwith in writing upon
becoming aware that such credit institution intends to
take any of the actions set out in subarticle (1).
(3) Within three months of receipt of
such notification or receipt of such information as the
competent authority may lawfully require, whichever is
the later, the competent authority shall issue a notice
(a) granting unconditional consent to the
taking of the action;
(b) granting consent to the taking of the
action subject to such conditions as the competent
authority may deem appropriate; or
(c)
refusing consent to the taking of the
action,
and if it refuses to grant consent it shall inform the
person or the credit institution concerned in writing of
the reason for its refusal.
(4) If any person or any credit institution
takes or decides to take any action set out in subarticle
(1) without obtaining the consent of the competent
authority, then, without prejudice to any other penalty
which may be imposed under this Act, the competent
authority shall have the power to make an order
(a) restraining such person or credit
institution from taking or continuing with such
action;
(b) declaring such action to be void and of
no effect;
(c) requiring such person or credit
institution to take such steps as may be necessary
to restore the position existing immediately before
the action was taken;
(d)
restraining
such
person
or
credit
institution from exercising any rights which such
action would, if lawful, have conferred upon them,
including the right to receive any payment or to
exercise any voting rights attaching to the shares
acquired;
(e) restraining such person or credit
institution from taking any similar action or
any other action within the categories set out in
subarticle (1).”.
Immediately after subarticle (4) of article 14 of the Amendment of article
principal Act, there shall be inserted the following new subarticle: 14
“(5) For the purposes of this article control includes the
power to determine in any manner the financial and operating
policies of a body corporate, the power to appoint or remove
the majority of the members of the board of directors or
equivalent governing body or the power to cast the majority
of votes at meetings of the board of directors or equivalent
governing body.”.
Subarticle (1) of article 15 of the principal Act shall be Amendment of article
amended as follows
(a) in paragraph (d) thereof, for the words “indirectly
any significant or qualifying shareholding”, there shall
be substituted the words “indirectly any qualifying
shareholding”; and
(b) in paragraph (iv) of the proviso to paragraph
(d) thereof, for the words “considered as a significant
shareholding for the purposes”, there shall be substituted
the words “considered as a qualifying shareholding for the
purposes”.
Article 16A of the principal Act shall be amended as Amendment of article
follows
(a) in subarticle (2) thereof, for the words “do not meet
the requirements laid down in Article 109 of the Directive”,
there shall be substituted the words “do not meet the
requirements laid down in a Banking Rule”;
(b) subarticles (3) and (4) thereof shall be re-numbered
as subarticles (4) and (5) thereof; and
(c) immediately after subarticle (2) thereof, there shall
be inserted the following new subarticle
“(3) In certain specific circumstances and with
the written approval of the competent authority, where
there is a merger of two or more credit institutions, the
own funds of the credit institutions resulting from the
merger may not fall below the total own funds of the
merged credit institutions at the time of the merger as
long as the level specified in article 7 (1) (a) of the Act
have not been attained.”.
For subarticle (2) of article 17 of the principal Act there
shall be substituted the following
“(2) Where the level of the capital requirement of a
credit institution is not restored within the determined period,
the competent authority may in addition to the power to
impose an administrative penalty, exercise any of the powers
granted to it under the provisions of article 9 (2) of the Act.”.
For article 17A of the principal Act there shall be
substituted the following
“17A. (1) Every credit institution, to the exclusion
of an electronic money institution, shall maintain adequate
provisions for bad and doubtful debts.
(2) The competent authority may issue
a Banking Rule as it shall consider appropriate for the
regulation of provisioning for bad and doubtful debts.”.
In paragraph (b) of subarticle (1) of article 19 of the
principal Act, for the words “the competent authority for statistical
purposes;”, there shall be substituted the words “the competent
authority for prudential and statistical purposes;”.
In subarticle (9) of article 20 of the principal Act, for
the words “who has a significant shareholding or qualifying
shareholding in a credit institution”, there shall be substituted the
words “ who has a qualifying shareholding in a credit institution”.
Article 22 of the principal Act shall be amended as
follows
(a) in subarticle (3) thereof, for the words “who has a
significant shareholding or qualifying shareholding in a credit
institution”, there shall be substituted the words “ who has a
qualifying shareholding in a credit institution”;
(b) in subarticle (5) thereof, for the words “who has a
significant shareholding in, qualifying shareholding in, or is a
controller of that body”, there shall be substituted the words “
who has a qualifying shareholding in, or is a controller of that
body”.
Article 25 of the principal Act shall be amended as Amendment of article
follows
(a) in subarticle (1) thereof, for the words “On the basis
of international agreements, or upon reciprocity agreements,
the competent authority may share its supervisory duties with
other foreign competent authorities”, there shall be substituted
the words “On the basis of Malta’s international commitments,
the competent authority may share its supervisory duties with
overseas regulatory authorities”;
(b) in subarticle (2) thereof, for the words “on the basis
of international agreements, or upon reciprocity agreements,
disclose information to other foreign competent authorities.”,
there shall be substituted the words “on the basis of Malta’s
international commitments, disclose information to overseas
regulatory authorities.”; and
(c) in subarticle (6) thereof, for the words “disclose to
the Central Bank, other bodies”, there shall be substituted the
words “disclose to the Central Bank, other overseas Central
Banks, other bodies”.
Article 25A of the principal Act shall be amended as Amendment of article
follows
(a) in subarticle (2) thereof, for the words “financial
soundness of a credit institution in another Member State”,
there shall be substituted the words “financial soundness of
a credit institution or financial institution in another Member
State”;
(b) in subarticle (4) thereof, for the words “The
competent authority shall consult”, there shall be substituted
the words “The competent authority shall, prior to its
decision, consult”; and
(c) in subarticle (6) thereof, immediately after the
words “in accordance with the Directive.”, there shall be
added the words “The Commission shall be kept informed of
the existence and the content of any such agreements.”.
PART III
This Part amends the Insurance Business Act, and it
shall be read and construed as one with the said Act, hereinafter in
this Part referred to as “the principal Act”.
Article 2 of the principal Act shall be amended as
follows
(a)
in subarticle (1) thereof
(i) the definition “investment services licence”
shall be deleted;
(ii) for the definition “qualifying shareholding”,
there shall be substituted the following
“ “qualifying shareholding” means a direct
or indirect holding in a company which represents
ten per centum or more of the share capital or of
the voting rights, taking into account the voting
rights as set out in Articles 9 and 10 of Directive
2004/109/EC of the European Parliament and
of the Council of 15 December 2004 on the
harmonisation of transparency requirements
in relation to information about issuers whose
securities are admitted to trading and amending
Directive 2001/34/EC, as well as the conditions
regarding aggregation thereof laid down in Article
12(4) and (5) of that Directive, or which makes it
possible to exercise a significant influence over the
management of the company in which that holding
subsists, and “qualifying shareholder” shall be
construed accordingly
Provided that, in determining whether the
criteria for a qualifying shareholding are fulfilled,
the competent authority shall not take into account
voting rights or shares which investment firms or
credit institutions may hold as a result of providing
the underwriting of financial instruments and,
or placing of financial instruments on a firm
commitment basis in terms of point 6 of Section A
to Annex 1 to Directive 2004/39/EC, provided that
those rights are, on the one hand, not exercised or
otherwise used to intervene in the management of
the issuer and, on the other, disposed of within one
year of acquisition;”; and
(iii) immediately after the definition “vehicle”,
there shall be inserted the following new definition
“ “working days” shall not include Saturdays
and the days referred to in the National Holidays
and Other Public Holidays Act.”; and
(b) in subarticle (2) thereof
(i) in paragraph (h) thereof, for the words
“Directives 98/78/EC and 2002/83/EC; and ”, there
shall be substituted the words “Directives 98/78/EC and
2002/83/EC;”
(ii) paragraph (i) thereof shall be renumbered as
paragraph (j);
(iii) immediately after paragraph (h) thereof,
there shall be added the following new paragraph (i)
“(i) Directive 2007/44/EC of the European
Parliament and of the Council of 5 September
2007 amending Council Directive 92/49/EEC and
Directives 2002/83/EC, 2004/39/EC, 2005/68/EC
and 2006/48/EC as regards procedural rules and
evaluation criteria for the prudential assessment
of acquisitions and increase of holdings in the
financial sector; and”.
For article 38 of the principal Act there shall be Substitution of article
38 of the principal
substituted the following
Act.
(1) Notwithstanding anything contained in
“Participation
any other law, any person or persons acting in concert
(hereinafter referred to in this Act as the “proposed
acquirer”), who have taken a decision either to
(a) acquire, directly or indirectly, a
qualifying shareholding in an authorised company;
(b) increase, directly or indirectly, an
existing shareholding which is not a qualifying
shareholding so as to cause it to become a
qualifying shareholding in an authorised company;
or
(c) further increase, directly or indirectly,
such qualifying shareholding in an authorised
company as a result of which the proportion of the
voting rights or of the capital held would reach or
exceed twenty per centum, thirty per centum or
fifty per centum or so that the authorised company
would become its subsidiary,
(hereinafter referred to as the “proposed acquisition”),
shall notify the competent authority in writing of
any such decision, indicating the size of the intended
shareholding and providing any relevant information as
and in the manner that the competent authority may by
an insurance rule require, including the form in which
such notification shall be made and the criteria adopted
by the competent authority in determining whether such
person is a fit and proper person.
(2) Notwithstanding anything contained
in any other law, any person who has taken a decision
either to
(a) dispose, directly or indirectly, of a
qualifying shareholding in an authorised company;
(b) reduce, directly or indirectly, a
qualifying shareholding so as to cause it to cease to
be a qualifying shareholding; or
(c) reduce, directly or indirectly, a
qualifying shareholding so that the proportion of
the voting rights or of the capital held would fall
below twenty per centum, thirty per centum or
fifty per centum or so that the authorised company
would cease to be its subsidiary,
shall notify the competent authority in writing of
any such decision indicating the size of the intended
shareholding and providing any relevant information as
and in the manner that the competent authority may by
an insurance rule require.
(3) Subarticles (1) and (2) shall apply
irrespective of whether or not any of the relevant
shares are shares listed on any regulated market within
the meaning of the Financial Markets Act or on an Cap. 345.
equivalent market in a non-Member State or non-EEA
State.
(4) It shall be the duty of an authorised
company and of the directors thereof, to notify the
competent authority forthwith upon becoming aware
that any person decides to take any of the actions set out
in subarticle (1) or (2).
(5) If any person or any authorised company
takes or decides to take any action set out in subarticle
(1) or (2) without notifying the competent authority
or obtaining its approval in terms of article 38A, then,
without prejudice to any other penalty which may be
imposed under this Act, the competent authority shall
have the power to make an order
(a) restraining such person or authorised
company from taking, or continuing with, such
action;
(b) declaring such action to be void and of
no effect;
(c) requiring such person or authorised
company to take such steps as may be necessary to
restore the position existing immediately before the
action was taken;
(d) restraining such person or authorised
company from exercising any rights which such
action would, if lawful, have conferred upon them,
including the right to receive any payment or to
exercise any voting rights attaching to the shares
acquired;
(e) restraining such person or authorised
company from taking any similar action or any
other action within the categories set out in
subarticles (1) and (2).
(6) Without prejudice to any other provision
of this Act, where the influence exercised by any
person acquiring or proposing to acquire a qualifying
shareholding is, or is likely to, operate against the sound
and prudent management of an authorised company,
the competent authority may exercise any of its powers
under this Act to put an end to such situation, including
the power to issue directives as it may deem reasonable
in the circumstances.
(7) In the case of a company whose head
office is in a country outside Malta authorised under
this Act to carry on in or from Malta the business of
insurance, the provisions of this article shall apply to
the extent only of requiring such company to give to
the competent authority, not later than thirty days from
such change or occurrence, as the case may be, the
information therein referred to.
(8) The competent authority, may, by means
of an insurance rule issued under this Act, indicate
the circumstances when persons are to be regarded as
“acting in concert”.”.
32. Immediately after article 38 of the principal Act, there
shall be inserted the following new article
(1) The competent authority shall,
promptly and in any event within two working days
following receipt of the notification required under
subarticle (1) of article 38, as well as following the
possible subsequent receipt of the information referred
to in subarticle (4), acknowledge receipt thereof in
writing to the proposed acquirer.
(2) The competent authority shall have a
maximum of sixty working days as from the date of the
written acknowledgement of receipt of the notification
required under subarticle (1) of article 38 and all
documents required by the competent authority to be
attached to such notification (hereinafter referred to
in this Act as the “assessment period”) to carry out an
assessment on the basis of such information as may be
determined by an insurance rule issued for this purpose.
(3) The competent authority shall inform
the proposed acquirer of the date of the expiry of the
assessment period at the time of acknowledging receipt.
(4) The competent authority may, during the
assessment period, if necessary and no later than on the
fiftieth working day of such period, request any further
information that is necessary to complete the assessment.
Such a request shall be made in writing and shall specify
the additional information needed.
(5) During the period between the date of
request for additional information by the competent
authority and the receipt of a response thereto by the
proposed acquirer, the assessment period shall be
interrupted. The interruption period shall not exceed
twenty working days. Any further requests by the
competent authority for completion or clarification of the
information shall be at its discretion but shall not result
in an interruption of such period.
(6) The competent authority may extend
the interruption period referred to in subarticle (5) up to
thirty working days if the proposed acquirer is
(a) situated or regulated in a non-Member
State or non-EEA state; or
(b)
a person not subject to supervision
under
(i) Council Directive 85/611/EEC
of 20 December 1985 on the coordination
of laws, regulations and administrative
provisions relating to undertakings for
collective investment in transferable securities
(UCITS);
(ii) Council Directive 92/49/EEC of
18 June 1992 on the coordination of laws,
regulations and administrative provisions
relating to direct insurance other than life
assurance and amending Directives 73/239/
EEC and 88/357/EEC (third non-life
insurance Directive);
(iii) Directive 2002/83/EC of the
European Parliament and of the Council of 5
November 2002 concerning life assurance;
(iv) Directive 2004/39/EC of the
European Parliament and of the Council of 21
April 2004 on markets in financial instruments
amending Council Directives 85/611/EEC
and 93/6/EEC and Directive 2000/12/EC of
the European Parliament and of the Council
and repealing Council Directive 93/22/EEC;
(v) Directive 2005/68/EC of the
European Parliament and Council of the 16
November 2005 on reinsurance and amending
Council Directives 73/239/EEC, 92/49/EEC
as well as Directives 98/78/EC and 2002/83/
EC; or
(vi) Directive 2006/48/EC of the
European Parliament and of the Council of
14 June 2006 relating to the taking up and
pursuit of the business of credit institutions
(recast).
(7) The competent authority shall, upon
completion of the assessment referred to in subarticle
(2) and not later than the date of the expiry of the
assessment period, issue a notice
(a) granting unconditional approval to the
proposed acquisition;
(b) granting approval to the proposed
acquisition subject to such conditions as the
competent authority may deem appropriate; or
(c)
refusing the proposed acquisition.
(8) In making the assessment referred to
in subarticle (2), the competent authority shall neither
impose any prior conditions in respect of the level of
shareholding that must be acquired nor examine the
proposed acquisition in terms of the economic needs of
the market.
(9) The competent authority may refuse
the proposed acquisition only if there are reasonable
grounds for doing so on the basis of the criteria set
out in the insurance rule referred to in subarticle (1) of
article 38 or if the information provided by the proposed
acquirer is incomplete.
(10) If the competent authority decides to
refuse the proposed acquisition, it shall, within two
working days, and not exceeding the assessment period,
inform the proposed acquirer in writing specifying the
reasons for such decision. The competent authority may,
whether at the request of such proposed acquirer or not,
issue a public statement indicating such reasons.
(11) If the competent authority does not
refuse the proposed acquisition in writing within the
assessment period, such proposed acquisition shall be
deemed to be approved.
(12) Without prejudice to any other penalty
which may be imposed under the Act, where a qualifying
shareholding in an authorised company is acquired
notwithstanding the refusal of the competent authority,
the exercise of the corresponding voting rights shall be
suspended and any of the votes cast in contravention of
this article shall be null and void.
(13) The competent authority may fix
a maximum period for concluding the proposed
acquisition and extend it where appropriate.
(14) Notwithstanding the provisions of
subarticles (1) to (6) of this article, where two or more
proposals to acquire or increase qualifying shareholdings
in the same authorised company have been notified
to the competent authority, the latter shall treat the
proposed acquirers in a non-discriminatory manner.”.
33. Immediately after article 38A of the principal Act, there
shall be added the following new article
(1) The competent authority shall work
“Co-operation
with overseas
in full consultation with overseas regulatory authorities
authorities in when carrying out the assessment referred to in
acquisitions. subarticle (2) of article 38A if the proposed acquirer is
one of the following
(a) a
credit
institution,
assurance
undertaking, insurance undertaking, reinsurance
undertaking, investment firm or UCITS
management company authorised in another
Member State or EEA State or in a sector other
than that in which the acquisition is proposed;
(b) the parent undertaking of a credit
institution, assurance undertaking, insurance
undertaking, reinsurance undertaking, investment
firm or UCITS management company authorised
in another Member State or EEA State or in a
sector other than that in which the acquisition is
proposed; or
(c) a person controlling a credit institution,
assurance undertaking, insurance undertaking,
reinsurance undertaking, investment firm or
UCITS management company authorised in
another Member State or EEA State or in a
sector other than that in which the acquisition is
proposed.
(2) The competent authority shall, without
undue delay, provide any information which is
essential or relevant for the assessment referred to in
subarticle (2) of article 38A to the overseas regulatory
authority requesting such information. Upon request,
the competent authority shall communicate to the
overseas regulatory authority all relevant information
and shall communicate on its own initiative all essential
information. A decision by the competent authority
in terms of article 38A shall indicate any views or
reservations expressed by the overseas regulatory
authority responsible for the proposed acquirer.”.
34. Immediately after article 38B of the principal Act, there
shall be inserted the following new article
(1) Notwithstanding anything contained
tions, divisions in any other law and without prejudice to subarticles
and changes in (1) and (2) of article 38, the consent of the competent
authority given in writing shall be required before an
authorised company may lawfully
(a) merge with any other company, whether
authorised under this Act or not;
(b) undergo any reconstruction or division;
or
(c) increase or reduce its nominal or issued
share capital or effect any material change in voting
rights.
(2) It shall be the duty of all directors and
qualifying shareholders of an authorised company to
notify the competent authority forthwith in writing upon
becoming aware that such company intends to take any
of the actions set out in subarticle (1).
(3) Within three months of receipt of
such notification or receipt of such information as the
competent authority may lawfully require, whichever is
the later, the competent authority shall issue a notice
(a) granting unconditional consent to the
taking of the action;
(b) granting consent to the taking of the
action subject to such conditions as the competent
authority may deem appropriate; or
(c)
refusing consent to the taking of the
action,
and if it refuses to grant consent it shall inform the
person or the authorised company concerned in writing
of the reason for its refusal.
(4) If any person or any authorised company
takes or decides to take any action set out in subarticle
(1) without obtaining the consent of the competent
authority, then, without prejudice to any other penalty
which may be imposed under this Act, the competent
authority shall have the power to make an order
(a) restraining such person or authorised
company from taking or continuing with such
action;
(b) declaring such action to be void and of
no effect;
(c) requiring such person or authorised
company to take such steps as may be necessary to
restore the position existing immediately before the
action was taken;
(d) restraining such person or authorised
company from exercising any rights which such
action would, if lawful, have conferred upon them,
including the right to receive any payment or to
exercise any voting rights attaching to the shares
acquired;
(e) restraining such person or authorised
company from taking any similar action or any
other action within the categories set out in
subarticle (1).”.
35. In paragraph (b) of subarticle (2) of article 43 of the
principal Act, for the words “inform the competent authority”,
there shall be substituted the words “at least once a year, inform
the competent authority”.
36. In paragraph (e) of subarticle (1) of article 58 of the
principal Act, for the words “under article 38”, there shall be
substituted the words “under articles 38, 38A and 38C”.
PART IV
37. This Part amends the Insurance Intermediaries Act, and Amendment of
it shall be read and construed as one with the said Act, hereinafter the
in this Part referred to as “the principal Act”.
38. Article 42 of the principal Act shall be deleted.
In subarticle (2) of article 44 of the principal Act, for Amendment of article
the words “article 54 of this Act insofar as it refers to article 38 of Act.
the Insurance Business Act”, there shall be substituted the words
“article 44A of this Act”.
(1) Immediately after article 44 of the principal Act, Addition of new
there shall be inserted the following new article
(1) Notwithstanding anything contained in
“Participation
in an enrolled
any other law, the prior written consent of the competent
company.
authority shall be required before any person may
lawfully
(a) acquire, directly or indirectly, a
qualifying shareholding in a company enrolled
under article 13 of this Act (hereinafter referred to
in this Act as the “enrolled company”);
(b) increase, directly or indirectly, an
existing holding which is not a qualifying
shareholding so as to cause it to become a
qualifying shareholding in an enrolled company;
(c) further increase, directly or indirectly, a
qualifying shareholding so as to cause it to equal or
exceed, twenty per centum or thirty per centum or
fifty per centum or to cause the enrolled company
to become that person’s subsidiary;
(d) reduce, directly or indirectly, a qualifying
shareholding so as to cause it to fall below fifty per
centum or thirty per centum or twenty per centum
or to cause the enrolled company to cease to be that
person’s subsidiary;
(e) reduce, directly or indirectly, a
qualifying shareholding so as to cause it to cease to
be a qualifying shareholding; or
(f) divest itself, directly or indirectly, of a
qualifying shareholding.
(2) Subarticle (1) shall apply irrespective
of whether or not any of the relevant shares are shares
listed on any regulated market within the meaning of the
Financial Markets Act or on an equivalent market in a
non-Member State or non-EEA State.
(3) It shall be the duty of an enrolled
company and of the directors thereof to notify the
competent authority forthwith upon becoming aware
that any person intends to take any of the actions set out
in subarticle (1).
(4) Notwithstanding anything contained
in any other law, the written consent of the competent
authority shall be required before any enrolled company
may lawfully -
(a) merge with any other company, whether
enrolled under this Act or not;
(b)
undergo any reconstruction or division;
or
(c) increase or reduce its nominal or issued
share capital or effect any material change in
voting rights.
(5) It shall be the duty of all directors and
qualifying shareholders of an enrolled company to notify
the competent authority forthwith upon becoming aware
that the company intends to take any of the actions set
out in subarticle (4).
(6) For the purpose of this article,
the competent authority may issue an insurance
intermediaries rule determining the form in which
notification in terms of subarticle (1) and subarticle
(4) shall take place and the information required to be
furnished with such notification; and, the competent
authority shall, upon a notification by a person intending
to take any action set out in subarticles (1)(a) to (c),
determine whether such person is a fit and proper person
before giving its consent.
(7) Within three months of receipt of
such notification or receipt of such information as the
competent authority may lawfully require, whichever be
the later, the competent authority shall issue a notice -
(a) granting unconditional consent to the
taking of the action;
(b) granting consent to the taking of the
action subject to such conditions as the competent
authority may deem appropriate; or
(c)
refusing consent to the taking of the
action,
and if it refuses to grant consent, it shall inform the
person or the enrolled company concerned in writing of
the reason for such refusal.
(8) If any person or any enrolled company
takes or intends to take any action set out in subarticle
(1) or (4) without the prior written consent of the
competent authority, the competent authority shall,
without prejudice to any other penalty which may be
imposed under this Act, have the power to make an
order
(a) restraining the person or company from
taking, or continuing with, such action;
(b) declaring such action to be void and of
no effect;
(c) requiring the person or company to
take such steps as may be necessary to restore the
position existing immediately before such action
was taken;
(d) restraining the person or company from
exercising any rights which such action would, if
lawful, have conferred upon them, including the
right to receive any payment or to exercise any
voting rights attaching to the shares acquired;
(e) restraining the person or company from
taking any similar action or any other action within
the categories set out in subarticles (1) and (4).
(9) In the case of a foreign company enrolled
under this Act to carry out insurance intermediaries
activities in or from Malta, the provisions of this article
shall apply only to the extent of requiring such company
to give to the competent authority, not later than thirty
days from such change or occurrence, as the case may
be, the information therein referred to.
(10) Without prejudice to any other
provision of this Act, where the influence exercised
by any person holding a qualifying shareholding is,
or is likely to, operate against the sound and prudent
management of an enrolled company, the competent
authority may exercise any of its powers under this Act,
including the power to issue directives as it may deem
reasonable in the circumstances.”.
41. Subarticle (2) of article 50 of the principal Act shall be
amended as follows
(a) paragraph (h) thereof, shall be renumbered as
paragraph (i);
(b) immediately after paragraph (g) thereof, there shall
be added the following new paragraph
“(h) to issue any notice or make any order under
article 44A;”.
42. In paragraph (b) of subarticle (1) of article 52 of
the principal Act, for the words “article 29, 30, 31A or 38 of the
Insurance Business Act”, there shall be substituted the words
“article 29, 30 or 31A of the Insurance Business Act”.
43. For paragraph (a) of subarticle (1) of article 54 of the
principal Act, there shall be substituted the following
“(a) the provisions of articles 29 to 31A of the
Insurance Business Act (hereinafter in this article referred to
as “the Act”) shall apply to an enrolled person, as if reference
in such provisions –
(i) to “authorisation” were a reference to
“enrolment in the Agents List, Managers List or Brokers
List”;
(ii) to “authorised company” were a reference to
an “enrolled person”;
(iii) to “business of insurance” were a reference
to “insurance intermediaries activities”;” .
PART V
44. This Part amends the Income Tax Act, and it shall be
read and construed as one with the said Act, hereinafter in this Part
referred to as “the principal Act”.
For paragraph (d) of subarticle (1) of article 12 of the
principal Act, there shall be substituted the following
“(d) the income of any retirement fund or retirement
scheme licensed, registered or otherwise authorized under the
Special Funds (Regulation) Act or any Act replacing the said
Act, other than income from immovable property situated in
Malta;”.
Passed by the House of Representatives at Sitting No. 154 of 3rd November,
2009. L ouis G alea
Speaker
P auline A bela
Clerk to the House of Representatives