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ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.

133 Articles / Provisions · Malta
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Table of Provisions (133)

Preamble Art. 1 First Schedule Art. 2 Second Schedule Art. 3 Scope. Third Schedule Art. 4 Fourth Schedule Art. 5 Fifth Schedule Art. 6 Art. 7 Art. 8 Supervisory functions. Art. 9 Art. 10 Art. 11 Power to take necessary measures. Art. 12 Power of make regulations. Art. 13 Reprint. Art. 14 Art. 15 Art. 16 Art. 17 Amendments to the Commercial Code. Art. 18 Substitution of articles 71, 72, 73 and 73A of the principal law. Art. 19 Art. 20 Art. 21 Substitution of article 550 of the principal law. Art. 22 Amendments to the Traffic (Regulation) Ordinance. Art. 23 Art. 24 Addition of new article 16B to the principal law. Art. 25 Art. 26 Art. 27 Art. 28 Art. 29 Amendment of article 2 to the principal Act. Art. 30 Amendment of article 3 to the principal Act. Art. 31 Art. 32 Amendment of article 8 to the principal Act. Art. 33 Art. 34 Amendment of article 10 of the principal Act. Art. 35 Amendment of article 11 of the principal Act. Art. 36 Amendment of article 12 of the principal Act. Art. 37 Amendment of article 15 of the principal Act. Art. 38 Addition of new articles 15A to 15C of the principal Act. Art. 39 Art. 40 Art. 41 Art. 42 Art. 43 Addition of new article 21 to the principal Act. Art. 44 Amendments to the Doorstep Contracts Act. Art. 45 Amendment of article 2 of the principal Act. Art. 46 Deletion of articles 4 and 5 of the principal Act. Art. 47 Renumbering of article 5A of the principal Act. Art. 48 Addition of new articles 6A and 6B to the principal Act. Art. 49 Art. 50 Substitution of article 15 of the principal Act. Art. 51 Amendments to the Engineering Profession Act. Art. 52 Amendment of article 2 of the principal Act. Art. 53 Art. 54 Art. 55 Amendment of article 5 of the principal Act. Art. 56 Addition of new article 5B to the principal Act. Art. 57 Amendment of article 6 of the principal Act. Art. 58 Art. 59 Art. 60 Amendment of article 11 of the principal Act. Art. 61 Amendment of article 19 of the principal Act. Art. 62 Amendments to the Education Act. Art. 63 Amendment of article 20 of the principal Act. Art. 64 Art. 65 Amendment of article 32 of the principal Act. Art. 66 Addition of new article 33A to the principal Act. Art. 67 Amendments to the Malta Transport Authority Act. Art. 68 Amendment of article 2 of the principal Act. Art. 69 Art. 70 Art. 71 Art. 72 Art. 73 Addition of new article 35 to the principal Act. Art. 74 Amendments to the Employment and Training Services Act. Art. 75 Art. 76 Art. 77 Amendment of article 24 of the principal Act. Art. 78 Amendments to the Periti Act. Art. 79 Amendment of article 2 of the principal Act. Art. 80 Amendment of article 3 of the principal Act. Art. 81 Art. 82 Art. 83 Art. 84 Amendments to the Malta Travel and Tourism Services Act. Art. 85 Amendment of article 2 of the principal Act. Art. 86 Substitution of article 17 of the principal Act. Art. 87 Art. 88 Amendment of article 19 of the follows: principal Act. Art. 89 Amendment of article 20 of the principal Act. Art. 90 Amendment of article 27 of the follows: principal Act. Art. 91 Art. 92 Art. 93 Art. 94 Amendment of article 32 of the principal Act. Art. 95 Amendment of article 33 of the principal Act. Art. 96 Art. 97 Art. 98 Art. 99 Amendment of article 47 of the principal Act. Art. 100 Amendments to the Malta Resources Authority Act. Art. 101 Amendment of article 2 of the principal Act. Art. 102 Art. 103 Art. 104 Art. 105 Art. 106 Art. 107 Art. 108 Deletion of articles 5 to 7 of the principal Act. Art. 109 Renumbering and amendment of article 8 of the principal Act. Art. 110 Art. 111 Art. 112 Addition of new article 11 to the principal Act. Art. 113 Deletion of articles 13 to 18 and Parts III to V of the principal Act. Art. 114 Art. 115 Art. 116 Art. 117 Art. 118 Art. 119 Art. 120 Art. 121 Art. 122 Art. 123 Renumbering and amendment of article 30 of the principal Act. Art. 124 Renumbering of articles 31 to 33 of the principal Act. Art. 125 Amendments to the Cultural Heritage Act. Art. 126 Amendment of article 33 of the principal Act. Art. 127

Statutory Text (133 Articles)

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Preamble — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

I assent.

G EORGE A BELA

(L.S.)

President

29th December, 2009

ACT No. XXIII of 2009

AN ACT to establish general provisions facilitating the exercise of

freedom of establishment for service providers and the free

movement of services in the internal market and to implement

Directive 2006/123/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:-

PART I - PRELIMINARY

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 1 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) The short title of this Act is the Services (Internal Short title and

commencement.

Market) Act, 2009.

(2) Parts I to VI (both inclusive) and the Schedules of this Act

shall come into force upon publication of this Act.

PART II - DEFINITIONS

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
First Schedule — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

[Article 6(1)]

Services and matters excluded from the application of article 6(1)

(1) Services of general economic interest, inter alia

(a)

in the postal sector, services covered by Directive 97/67/EC of

the European Parliament and of the Council of 15 December 1997 on

common rules for the development of the internal market of Community

postal services and the improvement of quality of service;

(b) in the electricity sector, services covered by Directive 2003/54/

EC of the European Parliament and of the Council of 26 June 2003

concerning common rules for the internal market in electricity;

(c)

in the gas sector, services covered by Directive 2003/55/EC of the

European Parliament and of the Council of 26 June 2003 concerning

common rules for the internal market in natural gas;

(d)

water distribution and supply services and waste water services;

(e)

treatment of waste.

(2) Matters covered by Directive 96/71/EC of the European Parliament and

of the Council of 16 December 1996 on the posting of workers in the framework of

the provision of services.

(3) Matters covered by Directive 95/46/EC of the European Parliament and

of the Council of 24 October 1995 on the protection of individuals with regard to

the processing of personal data and on the free movement of such data.

(4) Matters covered by Council Directive 77/249/EEC of 22 March 1977 to

facilitate the effective exercise by lawyers of freedom to provide services.

(5) The activity of judicial recovery of debts.

(6) Matters covered by Title II of Directive 2005/36/EC as transposed into

Maltese law by virtue of the Recognition of Professional Qualifications

Regulations, 2007, as well as requirements in the Member State where the service

is provided which reserve an activity to a particular profession.

(7) Matters covered by Regulation (EEC) No 1408/71 on the application of

social security schemes to employed persons or self employed persons and to

members of their families moving within the Community.

(8) As regards administrative formalities concerning the free movement of

persons and their residence, matters covered by the provisions of Directive 2004/

38/EC on the right of citizens of the European Union and their family members to

move and reside freely within the territory of the member states with which

beneficiaries must comply.

(9) As regards third country nationals who move to another Member State

in the context of the provision of a service, the possibility for Member States to

require visa or residence permits for third country nationals who are not covered

by the mutual recognition regime provided for in Article 21 of the Convention

implementing the Schengen Agreement of 14 June 1985 on the gradual abolition

of checks at the common borders or the possibility to oblige third country nationals

to report to the competent authorities on or after their entry.

(10) As regards the shipment of waste, matters covered by Council

Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of

shipments of waste within, into and out of the European Community.

(11) Copyright, neighbouring rights and rights covered by Council Directive

87/54/EEC of 16 December 1986 as transposed into Maltese law by virtue of the

Copyright Act, and regulations made thereunder, on the legal protection of

topographies of semiconductor products and by Directive 96/9/EC of the European

Parliament and of the Council of 11 March 1996 on the legal protection of

databases, as well as industrial property rights.

(12) Acts requiring by law the involvement of a notary public.

(13) Matters covered by Directive 2006/43/EC of the European Parliament

and of the Council of 17 May 2006 on statutory audit of annual accounts and

consolidated accounts.

(14) The registration of vehicles leased in another Member State.

(15) Provisions regarding contractual and non-contractual obligations,

including the form of contracts, determined pursuant to the rules of private

international law.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 2 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In this Act, unless the context otherwise requires

Interpretation.

"Appeals Board" means the appeals boards, tribunals or courts

established by law, recourse to which may be made by any aggrieved

person following a decision of a competent authority;

"authorisation" means a permit, licence, warrant, appointment,

concession or any formal or implied decision concerning access to a

service activity or the exercise thereof;

"authorisation scheme" means any authorisation and other

procedure of an administrative nature, under which a provider or

recipient is in effect required to take steps in order to commence the

activity in question and obtain, from a competent authority,

authorisation concerning access to a service activity or the exercise

thereof;

"commercial communication" means any form of

communication designed to promote, directly or indirectly, the goods,

services or image of an undertaking, organisation or person engaged

in commercial, industrial or craft activity, or practicing a regulated

profession. The following do not in themselves constitute commercial

communications

(a)

information enabling direct access to the activity of

the undertaking, organisation or person, including in particular a

domain name or an electronic-mailing address;

(b) communications relating to the goods, services or

image of the undertaking, organisation or person, compiled in

an independent manner, particularly when provided for no

financial consideration;

"competent authority" means any body or authority established

and, or designated by law and vested with a supervisory and, or

regulatory role in relation to service activities, including the

regulation of access to service activities and, or the exercise thereof;

"the Directive" means Directive 2006/123/EC of the European

Parliament and of the Council of 12 December, 2006, on services in

the internal market;

"establishment" means the actual pursuit of an economic

activity as referred to in Article 43 of the Treaty, by a service provider

for an indefinite period and through a stable infrastructure from

where the business of providing services is actually carried out;

"the European Commission" means the Commission of the

European Community;

"Internal Market Information System" means the information

system, established further to Article 34 of the Directive, through

which competent authorities exchange information in fulfilment of

their obligations under Chapter VI of the Directive;

"Member State" means a member state of the European

Economic Area;

"Member State of establishment" means the Member State in

whose territory the provider of the service concerned is established;

"Member State where the service is provided" means the

Member State where the service is supplied by a provider established

in another Member State;

"the Minister" means the Minister responsible for the economy;

"overriding reasons relating to the public interest", unless

otherwise specified in this Act, means the reasons recognised as such

in the case law of the European Court of Justice, and as they may

continue to evolve, including the following grounds: public policy,

public security, public safety, and public health; the maintenance of

order in society; social policy objectives, the protection of the

recipients of services; consumer protection; the protection of workers

including the social protection of workers; animal welfare; the

preservation of the financial balance of the social security system; the

prevention of fraud; the prevention of unfair competition; the

protection of the environment and the urban environment including

town and country planning; the protection of creditors; safeguarding

the sound administration of justice; road safety; the protection of

intellectual property; cultural policy objectives including

safeguarding the freedom of expression of various elements in

particular social, cultural, religious and philosophical values of

society; the need to ensure a high level of education, the maintenance

of press diversity and the promotion of the national language; the

preservation of national historical and artistic heritage; and veterinary

policy;

"point of single contact" means the electronic system through

which the competent authorities shall fulfill their functions relating to

the completion of all procedures and formalities necessary for

establishment and access to and exercise of a service activity in Malta

and the provision of relevant information to an applicant, a provider

and recipients in terms of this Act or as may be prescribed;

"provider" means any natural person who is a national of a

Member State, or any legal person as referred to in Article 48 of the

Treaty and established in a Member State, who offers or provides a

service;

"recipient" means any natural person who is a national of a

Member State or who benefits from rights conferred upon him by

Community acts, or any legal person as referred to in Article 48 of the

Treaty and established in a Member State, who, for professional or

non-professional purposes, uses, or wishes to use, a service;

"regulated profession" means a professional activity or a group

of professional activities as referred to in Article 3(1)(a) of Directive

2005/36/EC on the recognition of professional qualifications as

transposed by the Recognition of Professional Qualifications

2007. Regulations, 2007;

"requirement" means any obligation, prohibition, condition or

limit provided for in the laws, regulations or administrative

provisions, administrative practice, the rules of professional bodies,

or the collective rules of professional associations or other

professional organisations, adopted in the exercise of their legal

autonomy;

"service" means any self-employed activity performed for an

economic consideration as referred to in Article 50 of the Treaty;

"services of a general economic interest" means those services

declared by the Minister as services of general economic interest in

terms of article 30(3) of the Competition Act in conformity with

Community law;

"the Treaty" means the Treaty establishing the European

Community.

PART III - SCOPE OF APPLICATION OF THIS ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Second Schedule — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

[(Article 8(3) and (4)]

Cooperation with a competent authority of another Member State

(1) When a service is being provided in another Member State by a

provider established in Malta, a competent authority shall cooperate with the

relevant competent authority of another Member State, and fulfill its obligations as

stipulated hereunder

(a)

when receiving a request from the relevant competent authority

of another Member State, a competent authority shall confirm whether a

provider is established in Malta and that to its knowledge the provider is not

exercising his activity in an unlawful manner;

(b) the competent authority shall carry out such checks, inspections

and investigations as requested and, or necessary, and shall inform the

relevant competent authority in the other Member State of the results and, or

of any measures taken by it

Provided that a competent authority may decide on which

measures are appropriate;

(c)

in the event that a competent authority encounters difficulty in

meeting a request for information or in carrying out checks, inspections or

investigations, it shall rapidly inform the requesting competent authority with

such difficulties in order to find a solution.

(2) Upon gaining actual knowledge of any conduct or specific acts by a

provider established in Malta which provides services in other Member States,

that, to its knowledge, could cause serious damage to the health and safety of

persons or to the environment, the competent authority shall inform all other

relevant competent authorities of other Member States and the Commission within

the shortest possible period of time.

(3) When a service is being provided in Malta, in the event of a temporary

movement by a provider established in another Member State

(a)

at the request of the relevant competent authority of the Member

State of establishment, the competent authority shall carry out checks,

inspections and investigations necessary for ensuring the effective

supervision by the competent authority of establishment

Provided that a competent authority may decide on the most

appropriate manner to meet the request by the Member State of

establishment;

(b) the competent authority may, on its own initiative, conduct

checks, inspections and investigations on the spot, provided that those

checks, inspections and investigations are not discriminatory, motivated by

the fact that the provider is established in another Member State and are

proportionate;

(c)

in the event that a competent authority encounters difficulty in

meeting a request for information or in carrying out checks, inspections or

investigations, it shall rapidly inform the requesting competent authority with

such difficulties in order to find a solution;

(d) with respect to the requirements imposed by the competent

authority in terms of article 6(3), the competent authority shall take all

measures necessary to ensure that the provider complies with these

requirements and shall carry out checks, inspections and controls necessary

to supervise the service provided.

(4) Where a competent authority becomes aware of serious and specific

acts or circumstances relating to a service activity that could cause serious damage

to health and safety of persons or to the environment in Malta or in the territory of

other Member States, the competent authority shall inform the relevant competent

authority of the Member State of establishment, the other Member States

concerned and the Commission within the shortest possible time.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 3 Scope. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1)

This Act shall apply to services supplied by a

provider.

(2) Without prejudice to subarticle (1), this Act shall not apply

to the following activities

(a)

financial services, such as banking, credit, insurance

and re-insurance, occupational or personal pensions, securities,

investment funds, payment and investment advice, including the

services listed in Annex I to Directive 2006/48/EC relating to

the taking up and pursuit of the business of credit institutions as

transposed by the European Passport Rights for Credit

Institutions Regulations;

(b) electronic communications services and networks,

and associated facilities and services, with respect to matters

covered by Directives 2002/19/EC (Access Directive), 2002/20/

EC (Authorisation Directive), 2002/21/EC (Common

Regulatory Framework), 2002/22/EC (Universal Services

Directive) and 2002/58/EC (Directive on Piracy and Electronic

Communication) as transposed into Maltese legislation;

(c)

services in the field of transport, including port

services, falling within the scope of Title V of the Treaty;

(d)

services of temporary work agencies;

(e)

healthcare services including pharmaceutical

services provided by health professionals to assess, maintain

and restore the state of health to patients, whether or not they

are provided via healthcare facilities, and regardless of the ways

in which they are organised and financed at national level or

whether they are public or private;

(f)

audiovisual services, including cinematographic

services, whatever their mode of production, distribution and

transmission, and radio broadcasting;

(g) gambling activities as regulated by the Gaming Act Cap.400.

and the Lotteries and other Games Act;

(h) activities which are connected with the exercise of

official authority as set out in Article 45 of the Treaty;

(i)

social services relating to social housing, childcare

and support of families and persons permanently or temporarily

in need which are provided by the State, by providers mandated

by the State or by charities recognised as such by the State;

(j)

private security services;

(k) services provided by notaries and court marshals,

who are appointed by an official act of government;

(l)

services in the field of taxation.

(3) If the provisions of this Act are in conflict with a provision

of a Community act governing specific aspects of access to, or

exercise of a service activity in, specific sectors or for specific

professions, the provision of the Community act shall prevail and

shall apply to those specific sectors or professions. These include

(a)

Directive 96/71/EC on the posting of workers in the

framework of the provision of services;

(b) Regulation (EEC) No 1408/71 on the application of

social security schemes to employed persons and self-employed

persons, and to members of their families moving within the

Community;

(c)

Council Directive 89/552/EEC of 3 October 1989 on

the coordination of certain provisions laid down by law,

regulation or administrative action in Member States concerning

the pursuit of television broadcasting activities;

(d) Directive 2005/36/EC

on

the

recognition

of

professional qualifications.

(4) Furthermore, this Act shall not apply to

(a)

rules of private international law, in particular rules

governing the law applicable to contractual and non-contractual

obligations; and

(b)

rules concerning the rules of jurisdiction of the

Courts.

PART IV - COMPETENT AUTHORITIES

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Third Schedule — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

[Article 8(6)]

Procedure to be followed on transmission of information

on the good repute of a provider

(1) In complying with a request for information on the good repute of a

provider, a competent authority shall abide by the provisions of disclosure of

information provided under any other law.

(2) Without prejudice to paragraph (1), a competent authority upon receipt

of a request by another competent authority shall supply any information on

disciplinary or administrative decisions or on any other decision concerning a state

of insolvency or bankruptcy which are directly relevant to the provider’s

competence or reliability.

(3) In the event that a request concerns the disclosure of information

relating to sanctions and administrative decisions, a competent authority shall

ensure that such sanctions and decisions are final.

(4) In the event that a request concerns the disclosure of information on any

other enforceable decision, the competent authority shall clearly indicate whether

the decision is final or subject to appeal. Should the latter be the case, the

competent authority shall provide the expected time when the decision of appeal is

expected to be delivered.

(5) In the event that a competent authority receives a request from a

competent authority in another Member State relating to the disclosure of

information on a criminal sanction of a service provider which is directly relevant

to the provider’s competence or professional reliability, the competent authority

shall refer such request to the Commissioner of Police and relay back the

information received to the requesting competent authority

Provided that a request made pursuant to the objectives mentioned in

this sub-article must be duly substantiated, and the reason of the request is made

known to the competent authority.

(6) The competent authority which supplies the information shall inform

the service provider that that information has been disclosed.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 4 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Further to the fulfilment of the powers, functions and

responsibilities attributed to a competent authority, in the founding

and enabling legislation concerning their area of competence, and

without prejudice to the allocation of functions and powers vested

among authorities within the national administrative system, a

competent authority shall

(a)

simplify procedures and formalities applicable to the

access to a service activity and to the exercise thereof;

(b) act objectively, transparently, efficiently and in a

timely manner;

(c)

provide information and assistance to providers and

recipients subject to the provisions of this Act;

(d) make it possible to complete all procedures and

formalities relating to access to a service activity and to the

exercise thereof available electronically through the designated

point of single contact

Provided that the requirement to make it possible to

complete all procedures and formalities electronically through

the point of single contact shall not be applicable to the

inspection of premises on which the service is provided or of

equipment used by the provider or to the physical examination

of the capability or of the personal integrity of the provider or of

his responsible staff;

(e)

assist competent authorities of another Member

State and seek their assistance in fulfilling the supervisory

obligations in terms of article 8;

(f)

perform such other functions as may from time to

time be assigned to it by the Minister, in consultation with other

Ministers, as may be applicable.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Fourth Schedule — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

[(Article 6(3)]

Mutual assistance in the case of a case-by-case derogation

(1) Where a competent authority intends to take a measure pursuant to

article 6(3) of this Act, the following procedure shall apply without prejudice to

court proceedings, including preliminary proceedings and acts carried out in the

framework of a criminal investigation.

(2) A competent authority shall request the competent authority in the

Member State of establishment to take measures with regard to the provider,

supplying all relevant information on the services and the circumstances of the

case.

(3) The competent authority in the Member State of establishment shall,

within the shortest time possible, check whether the provider is operating lawfully

and verify the acts underlying the request.

(4) Following a reply from the competent authority in the Member State of

establishment of the measures taken or envisaged to be taken or, as the case may

be, the reason why it has not taken any measures, the competent authority shall

notify the European Commission and the competent authority in the Member State

of establishment of its intention to take measures, for the following reasons

(a)

why it believes the measures taken or envisaged by the competent

authority in the Member State of establishment are inadequate;

(b) why it believes the measure it intends to take fulfills the

following conditions

(i) the national measure has not been subject to Community

harmonisation in the camp of the safety of services;

(ii) the measure provides for a higher level of protection of the

recipient than would be the case in a measure taken by the relevant

competent authority in the Member State of establishment in

accordance with its national provisions;

(iii) the relevant competent authority in the Member State of

establishment has not taken any measures or has taken measures which

are insufficient as compared with those referred in sub-paragraph (ii);

(iv) the measures are not proportionate.

(5) The measures may not be taken before fifteen working days from the

date of notification as provided in paragraph (4).

(6) However the competent authority shall, in case of urgency, refrain from

following the above procedure, and shall notify the measures taken, together with

the reasons of urgency, within the shortest possible period of time to the

Commission and the relevant competent authority in the Member State of

establishment.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 5 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) Where a competent authority grants and regulates Authorisation

access to a service activity, in the carrying out of its authorisation function

conditions.

functions, on the basis of an authorisation scheme, the scheme shall

(a)

non-discriminatory;

(b)

necessary, and

(c)

justified by an overriding reason relating to the

public interest;

Provided that the public interest objective being pursued

cannot be attained by means of a less restrictive measure, in particular

because a posteriori inspections, checks and controls would take

place too late to be genuinely effective.

(2) The competent authority shall assess applications and Conditions for

granting

grant authorisations based on criteria that are

authorisations.

(a)

non-discriminatory;

(b) justified by an overriding reason related to public

interest and proportionate to the attainment of that public

interest objective;

(c)

clear and unambiguous;

(d)

objective;

(e)

made public in advance; and

(f)

transparent and accessible.

(3) A competent authority may not make access to or the

exercise of a service activity in Malta subject to compliance to any of

the following, in conformity with European Union law

(a)

discriminatory requirements based directly or

indirectly on nationality or, in the case of companies, the

location of the registered office, including in particular

(i) nationality requirements for the provider, his

staff, persons holding the share capital or members of the

provider’s management or supervisory bodies;

(ii) a requirement that the provider, his staff,

persons holding the share capital or members of the

provider’s management or supervisory bodies be resident

in Malta;

(b) a prohibition on having an establishment in more

than one Member State or on being entered in the registers or

enrolled with professional bodies or associations of more than

one Member State;

(c)

restrictions on the freedom of a provider to choose

between a principal or a secondary establishment, in particular

an obligation on the provider to have its principal establishment

in Malta, or restrictions on the freedom to choose between

establishment in the form of an agency, branch or subsidiary;

(d) conditions of reciprocity with the Member State in

which the provider already has an establishment;

(e)

the case-by-case application of an economic test

making the granting of authorisation subject to proof of the

existence of an economic need or market demand, an

assessment of the potential or current economic effects of the

activity or an assessment of the appropriateness of the activity

in relation to the economic planning objectives set by the

competent authority; this prohibition shall not concern planning

requirements which do not pursue economic aims but serve

overriding reasons relating to the public interest;

(f)

the direct or indirect involvement of competing

operators, including within consultative bodies, in the granting

of authorisations or in the adoption of other decisions of the

competent authorities, with the exception of professional bodies

and associations or other organisations acting as the competent

authority; this prohibition shall not concern the consultation of

organisations, such as chambers of commerce or social partners,

on matters other than individual applications for authorisation,

or a consultation of the public at large;

(g) an obligation to provide or participate in a financial

guarantee or to take out insurance from a provider or body

established in Malta; this paragraph is without prejudice to sub-

article (5) or to requirements relating to the participation in a

collective compensation fund for members of professional

bodies or organisations;

(h) an obligation to have been pre-registered, for a

given period, in the registers held in Malta or to have previously

exercised the activity for a given period in Malta.

(4) Where a competent authority makes access to a service

activity or the exercise thereof subject to any of the following non-

discriminatory requirements

(a)

quantitative or territorial restrictions;

(b)

an obligation on the provider to take a specific legal

form;

(c)

requirements which relate to the shareholding of a

company;

(d) requirements, other than those concerning matters

covered by Directive 2005/36/EC on the recognition of

professional qualifications as transposed by the Recognition of L.N. 422 of

Professional Qualifications Regulations, 2007, or provided for 2007.

in other Community Instruments, which reserve access to the

service activity in question to particular providers by virtue of

the specific nature of the activity,

it shall ensure that the requirements are

(i) not directly nor indirectly discriminatory on

the basis of the nationality of the individual or the

registered office of the company;

(ii) justified by an overriding reason relating to

the public interest; and

(iii) proportionate and suitable for attaining the

objective pursued

Provided that where the access to the service activity in

question, or the exercise thereof, is a service of general economic

interest, this sub-article shall apply only in so far as it does not

obstruct the performance, in law or in fact, of the public service

obligation task assigned to the provider or providers

Provided further that with effect from 28 December 2009,

the introduction of the said non-discriminatory requirements shall be

notified to the European Commission through established procedure.

(5) Without prejudice to arrangements provided for in other

Community instruments concerning professional insurance or

guarantees, a competent authority may request a provider established

in Malta whose services present a direct and particular risk to the

health and safety of the recipient or a third person, or to the financial

security of the recipient, to subscribe to a professional liability

insurance appropriate to the nature and extent of the risk, or provide a

guarantee or similar arrangement which is equivalent or essentially

comparable as regards it purpose.

For the purpose of this sub-article

"direct and particular risk" means a risk arising directly from the

provision of the service;

"health and safety" means, in relation to a recipient or a third

person, the prevention of death or serious personal injury;

"financial security" means, in relation to a recipient, the

prevention of substantial losses of money or of value of property;

"professional liability insurance" means insurance taken out by

a provider in respect of potential liabilities to recipients and, where

applicable, third parties arising out of the provision of the service.

A competent authority shall accept as sufficient evidence

attestations of such insurance cover issued by credit institutions and

insurers established in other Member States.

(6) A competent authority may not impose requirements on a

service provider established in Malta which oblige him to exercise a

specific service activity exclusively or which restricts him from

exercising his service activity jointly or in partnership except in the

case of

(a)

regulated professions, so long as it is justified on the

grounds of ethics and conduct;

(b) providers of certification, accreditation, technical

monitoring, test or trial services, so long as it is justified on the

grounds of independence and impartiality

Provided that where a competent authority authorises or

permits the carrying out of multi-disciplinary activities between

providers established in Malta, it shall ensure prevention of any

conflict of interest from among the providers, the subsistence of

independence and impartiality, and the adherence to professional

ethics and codes conduct where applicable.

(7) A competent authority or any other professional body

empowered at law to regulate the exercise of regulated professions,

shall not prohibit commercial communications by the regulated

professions

Provided that professional rules on commercial

communications shall be non-discriminatory, justified by an

overriding reason relating to the public interest and proportionate

Provided further that commercial communications by the

regulated professions comply with professional rules, in conformity

with Community law, which relate, in particular, to the independence,

dignity and integrity of the profession, as well as to professional

secrecy, in a manner consistent with the specific nature of each

profession.

(8) When a service provider is already established in another Service provider

established in

Member State, and seeks establishment in Malta

another Member

State.

(a)

where the service activity is subject to an

authorisation scheme or the fulfillment of other requirements

regulating establishment in Malta, the competent authority shall

not duplicate requirements or controls which are equivalent or

essentially comparable as regards their purpose to which a

provider may already be subject to in another Member State

where he is established

Provided that the provisions of this paragraph shall not

apply to the documents referred to in Article 7(2) and 50 of

Directive 2005/36/EC, in Articles 45(3), 46, 49 and 50 of

Directive 2004/18/EC of the European Parliament and of the

Council of 31 March 2004 on the coordination of procedures for

the award of public works contracts, public supply contracts and

public service contracts, in Article 3(2) of Directive 98/5/EC of

the European Parliament and of the Council of 16 February

1998 to facilitate practice of the profession of lawyer on a

permanent basis in a Member State other than that in which the

qualification was obtained, in the First Council Directive 68/

151/EEC of 9 March 1968 on coordination of safeguards which,

for the protection of the interests of members and others, are

required by Member States of companies within the meaning of

the second paragraph of Article 58 of the Treaty, with a view to

making such safeguards equivalent throughout the Community

and in the Eleventh Council Directive 89/666/EEC of 21

December 1989 concerning disclosure requirements in respect

of branches opened in a Member State by certain types of

company governed by the law of another Member State;

(b) where a competent authority requires a provider to

supply a certificate, attestation or document proving that a

requirement has been satisfied in terms of this Act

(i) it shall accept any document from another

Member State which serves an equivalent purpose or from

which it is clear that the requirement in question has been

satisfied;

(ii) it may not require a document from another

Member State to be produced in its original form or as a

certified copy or certified translation save in the cases

provided for in any Community instrument or where such a

requirement is justified by an overriding reason relating to

the public interest, including public order and public

security

Provided that this paragraph shall not affect the right

of a competent authority from requesting a non-certified

translation of documentation in the Maltese or English

language

Provided further that the competent authority may

make use of the electronic system referred to in article 8 to carry

out necessary verification, checks and controls with the relevant

competent authority in the Member State of establishment;

(c)

when a competent authority requires a provider to

subscribe to a professional liability insurance in terms of sub-

article (5), a competent authority may not require a provider to

subscribe to a professional liability insurance or a guarantee

where he is already covered by an insurance or guarantee which

is equivalent or essentially comparable, as regards its purpose

and the cover it provides in terms of the insured risk, the insured

sum, or a ceiling for a guarantee and possible exclusions from

the cover in another Member State in which the provider is

already established. Where equivalence is only partial, a

competent authority may require a supplementary insurance or

guarantee to cover those aspects not already covered.

(9) (a)

Where the number of authorisations available for a

given service activity is limited because of the scarcity of available

natural resources, technical capacity or if justified by an overriding

reason relating to public interest, a competent authority shall apply a

selection procedure to potential candidates in order to ensure

impartiality, transparency, conditions of open competition, including

in particular adequate publicity about the launch, conduct and

completion of the procedure.

(b) Subject to the provisions of paragraph (a) and sub-

articles (1) and (2), in establishing the rules for the selection

procedure, the competent authority may give consideration to issues

relating to public health, social policy objectives, the health and

safety of employees or self-employed persons, the protection of the

environment, the preservation of cultural heritage and other

overriding reasons relating to the public interest, in conformity with

Community law.

(10) (a)

An authorisation granted to a provider shall be for Duration of

authorisation.

an indefinite period, except where

(i)

the authorisation is being automatically renewed or

is subject only to the continued fulfilment of requirements;

(ii) the number of available authorisations is limited in

terms of sub-article (9);

(iii) a limited authorisation period can be justified by an

overriding reason relating to the public interest.

(b) In cases referred to in paragraph (a)(ii), an

authorisation shall be granted for an appropriate limited period

enabling the provider to recoup the cost of investment and to make a

fair return on the capital invested, which authorisation may not be

open to automatic renewal nor confer any other advantage on the

provider whose authorisation has just expired or on any person having

any particular links with that provider.

(11) (a)

An authorisation granted by a competent authority Territoriality.

shall enable the provider to have access to the service activity or the

exercise thereof throughout the national territory including by means

of setting up agencies, subsidiaries, branches or offices, except where

the authorisation for each individual establishment or a limitation of

authorisation to a certain part of the territory is justified by an

overriding reason relating to public interest.

(b) The service provider shall be required to inform the

competent authority of the creation of subsidiaries, branches, offices

or agencies whose activities fall within the scope of the authorisation

scheme.

(12) In the fulfilment of its authorisation function, a competent Procedures and

formalities.

authority shall

(a)

ensure that the procedures and formalities are

maintained sufficiently simple, clear, objective and made public

in advance, and shall not unduly complicate or delay the

commencement of the service activity by the provider;

(b) acknowledge

all

applications

requesting

authorisation; specifying the time period within which the

application shall be processed referred to in paragraph (d), the

available means of redress and where applicable, a statement

that in the absence of a response within the time-period

specified the authorisation shall be deemed to have been

granted;

(c)

in the case of an incomplete application, inform the

applicant as quickly as possible of the need to supply any

additional information, together with the consequences which

ensue should the applicant delay in providing the said

information or requirements;

(d) process an application for an authorisation as

quickly as possible and in any event within a time period which

shall be fixed and made public in advance failing which it shall

be deemed that the authorisation has been granted, the period

will start to run from the day when all due information and

requirements have been submitted and any other formalities

have been completed in order for the competent authority to

process the application

Provided that the time period may be extended once

for a limited time when justified by the complexity of the issue,

and due justification shall be given to the applicant before the

original period has expired

Provided further that a competent authority may

make different arrangements where objectively justified by

overriding reasons relating public interest;

(e)

provide information regarding the means of redress

available in case of non-acceptance of an application;

(f)

grant authorisation as soon as the applicant fulfills

all requirements, without prejudice to the right of the competent

authority to revoke or modify an authorisation when the

conditions for authorisation are no longer met by the provider;

(g) in the case of rejected applications due to failure to

comply with the required procedures or formalities, inform the

applicant of the rejection as soon as possible;

(h) except in the case of the granting of an

authorisation, a decision from a competent authority, including

refusal or withdrawal, shall be fully reasoned and shall be open

to challenge before the Appeals Board.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Fifth Schedule — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

[Article 10(1) and (2)]

Information to be provided to a recipient

(1) A provider established in Malta shall make the following information

available to a recipient at all times

(a)

his name, legal status and form, the registered geographic address

at which he is established and details enabling him to be contacted rapidly

and communicated with directly and, as the case may be, by electronic

means;

(b) where the provider is subject to a code of conduct, is a member of

a trade association or professional body which provides recourse to

settlement dispute proceedings other than judicial proceedings, the details of

such body and the manner how the information on the characteristics and

conditions relating to such proceedings may be obtained;

(c)

where the provider is registered in a trade or other similar public

register, the name of that register and the provider’s registration number, or

equivalent means of identification in that register;

(d)

where the activity is subject to an authorisation scheme, the

particulars of the relevant competent authority or the single point of contact;

(e)

where the provider exercises an activity which is subject to VAT,

the identification number referred to in Article 22(1) of Sixth Council

Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of

the Member States relating to turnover taxes - Common system of value

added tax: uniform basis of assessment;

(f)

in the case of the regulated professions, any professional body or

similar institution with which the provider is registered, the professional title

and the Member State in which that title has been granted;

(g)

the general conditions and clauses, if any, used by the provider;

(h) the existence of contractual clauses, if any, used by the provider

concerning the law applicable to the contract and, or the competent courts;

(i)

the existence of an after-sales guarantee, if any, not imposed by

law;

(j)

the price of the service, where a price is pre-determined by the

provider for a given type of service;

(k)

the main features of the service, if not already apparent from the

context;

(l)

where he is subject to an insurance cover or other guarantee, the

contact details of the insurer or guarantor and the territorial coverage.

The information referred to in subparagraphs (a) to (l)

(i)

shall be provided at the provider’s initiative; and

(ii) shall be easily accessible to the recipient at the place where

the service is provided or the contract concluded; or

(iii) can be easily accessed by the recipient electronically by

means of an address supplied by the provider; or

(iv) appears on all documentation supplied to the recipient by

the provider which sets out a detailed description of the service he

provides.

(2) A provider shall make the following information available at the

recipient’s request

(a)

the price of the service and if an exact price cannot be quoted, the

method for calculating the price or a detailed estimate;

(b) a reference to the professional rules applicable in the Member

State of establishment and how to access them;

(c)

information on their multi-disciplinary activities and partnerships

which are directly linked to the service in question and on the measures taken

to avoid conflicts of interest. Such information shall be included in any

information document in which providers give a detailed description of their

services;

(d) information, if any, on the provider’s code of conduct, or

membership of a trade association or professional body which provides for

recourse to a non-judicial means of dispute settlement. The provider shall

specify how to access detailed information on the characteristics of, and

conditions for, the use of non-judicial means of dispute settlement.

(3) The provider shall ensure that the information supplied in accordance

with paragraphs (1) and (2) is made available or communicated in a clear and

unambiguous manner, and in good time, before the conclusion of the contract and,

where there is no written contract, before the service is provided.

Passed by the House of Representatives at Sitting No. 177 of the 14th

December, 2009.

L OUIS G ALEA

Speaker

P AULINE A BELA

Clerk to the House of Representatives

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 6 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) With the exclusion of service activities and matters Freedom to

included under the First Schedule, a competent authority shall respect provide

by providers

the right of a provider that is lawfully established and providing already

established in

services in another Member State to provide services in Malta, and Member States.

may not prevent him from providing such service activity by

imposing requirements which are discriminatory, unnecessary or

disproportionate.

For the purposes of this sub-article

(a)

a requirement is discriminatory if it necessitates the

fulfilment of obligations which relate to the nationality of the

applicant, including the place of establishment of a legal person;

(b) a requirement is unnecessary if it is not justified by

reasons of public policy, public security, public health or the

protection of the environment;

(c)

a requirement lacks proportionality if it goes beyond

what is necessary to pursue the objective.

(2) Without prejudice to sub-article (1), a competent authority

may not subject a provider established in another Member State who

wishes to provide services in Malta, to any of the following

requirements

(a)

an obligation

on

the

provider

to

have

an

establishment in Malta;

(b) an obligation on the provider to obtain an

authorisation from the competent authority including entry in a

register or registration with a professional body or association in

Malta except where provided for in this Act and other

instruments of Community law;

(c)

a ban on the provider setting up a certain form or

type of infrastructure in Malta, including an office or chambers,

which the provider needs in order to supply the services in

question;

(d) the application of specific contractual arrangements

between the provider and the recipient which prevent or restrict

service provision by the self-employed;

(e)

an obligation on the provider to possess an identity

document issued by the relevant Maltese authorities for the

exercise of a service activity;

(f)

requirements which affect the use of equipment and

material which are an integral part of the service provided,

unless necessary for the purpose of health and safety at work;

(g) restriction on the freedom to provide services as

contemplated under article 9(b) in relation to the right of

recipients

Provided that a competent authority may necessitate that

the provider observes the relevant laws which regulate conditions of

employment including those relating to collective agreements in

conformity with Community law

Provided further that in establishing whether a provider is

exercising his freedom to provide services within the meaning of this

article and Article 49 of the Treaty, or is an establishment case, the

competent authority shall assess and decide each case on its

individual merits and in conformity with the Community law and

rulings of the European Court of Justice.

(3) In exceptional cases only, and on a case by case basis,

without prejudice to sub-articles (1) and (2), a competent authority

may, in respect of a provider established in another Member State,

take measures in order to ensure the safety of services provided in

Malta. When taking such measures, a competent authority shall

follow the procedure established under the Fourth Schedule, and

ensure the fulfilment of the following conditions

(a)

the national provisions in accordance with which the

measures are taken have not been subject to Community

harmonisation in the field of the safety of services;

(b) the measures taken provide for a higher level of

protection of the recipient than would be the case in a measure

taken by the Member State of establishment in accordance with

its national provisions;

(c)

the Member State of establishment has not taken any

measures or has taken measures which are insufficient as

compared with those requested by the competent authority as

referred to in paragraphs 2 and 3 to the Fourth Schedule;

(d)

the measures are proportionate

Provided that where the competent authority becomes

aware of a serious specific act or circumstances relating to a service

activity that would cause serious damage to the health and safety of

persons, or the environment, in Malta or another Member State, it

shall inform the Member State of establishment, other Member States

that may be concerned or affected, and the European Commission

within the shortest time possible through the Internal Market

Information System.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 7 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In its function to provide information and assistance in Provision of

information and

terms of article 4(c)

assistance to

applicants,

providers and

(a)

a competent authority shall cooperate with the

recipients.

designated entity in accordance with article 10(3) to ensure that

the following are easily accessible to providers and recipients

(i) the requirements applicable in other Member

States relating to access to, and exercise of, the relevant

service activities, in particular those relating to consumer

protection;

(ii) the contact details of the competent

authorities enabling the latter to be contacted directly,

including the details of those authorities responsible for

matters concerning the exercise of the relevant service

activities;

(iii) the means of, and conditions for, accessing

public registers and databases on providers and relevant

services;

(iv) the means of redress which are generally

available in the event of dispute between the competent

authorities and the provider or the recipient, or between a

provider and a recipient or between providers;

(v) the contact details of the associations or

organisations other than the competent authorities, from

which providers may obtain practical assistance;

(vi) a list, updated at least annually, of the names

and commercial contact details of those providers who are

in possession of a valid licence issued by the competent

authority;

(b) at the provider’s and recipient’s request, the

competent authority shall provide assistance consisting of

simple, generic information of a non-legal nature, on the

interpretation and application of the requirements, procedures

and formalities needed for a provider or recipient to have access

to the relevant service activity in Malta;

(c)

in cooperation with the European Commission and

other Member States, the competent authority shall seek to

assist recipients in Malta in obtaining information on the

protection given to recipients, as well as the available means of

redress, and the contact details of associations providing

consumer assistance in other Member States.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 8 Supervisory functions. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) A competent authority shall require providers

established in Malta and falling under its area of competence to keep

it updated at all times with the information it identifies as necessary

and objectively justified for it to fulfill its supervisory function of

services in terms of its enabling Act and this Act.

(2) The competent authority shall exercise its supervisory

functions on providers established in Malta, and falling under its area

of competence, whether the service is provided in Malta or in another

Member State.

(3) In executing its supervisory functions, when a service is

being provided in another Member State by a provider established in

Malta, a competent authority shall assist the relevant competent

authority of that other Member State according to the procedure set

up in the Second Schedule. In doing so, the competent authority shall

not refrain from taking supervisory enforcement measures in Malta

on the grounds that a service has been provided or caused damage in

another Member State

Provided that a competent authority shall not be bound to

carry out checks and controls in the Member State where the service

is being provided.

(4) When a service is being provided in Malta, in the event of

a temporary movement by a provider established in another Member

State in terms of article 6

(a)

the competent authority shall participate in the

supervision of the provider in accordance with the procedure set

up in the Second Schedule;

(b) when it has imposed requirements in terms of the

provisos to article 6(2), it shall assume responsibility for the

supervision of the provider in Malta in order to ensure

compliance with those requirements.

(5) A competent authority shall exchange requests and

information with the relevant competent authorities of another

Member State and the Commission through the Internal Market

Information System.

(6) Without prejudice to the limitations imposed by any other

law, a competent authority shall supply information to the relevant

competent authority of another Member State on disciplinary or

administrative actions, or criminal sanctions and decisions

concerning insolvency or bankruptcy involving fraud, which directly

concern a provider, in terms of the procedure contemplated under the

Third Schedule.

PART V - RIGHTS OF RECIPIENTS

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 9 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Recipients and potential recipients of a service shall not be Prohibitions.

subjected to discriminatory requirements, including

(a)

limitations to access to services in Malta through a

provider’s general conditions that contain discriminatory

provisions relating to the nationality or place of residence of the

recipient, provided that this does not preclude the possibility for

a provider to provide for differences in the conditions of access

where those differences are directly justified by objective

criteria; or

(b) the granting of financial assistance by reason of the

fact that the provider is established in another Member State or

by reason of the location of the place at which the service is

provided; or

(iii) an obligation to obtain authorisation from, or to

make a declaration to, a competent authority.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 10 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) Further to the right to information and assistance Right to

referred to in articles 4 and 7, a provider established in Malta is information

assistance.

obliged to provide the information listed in the Fifth Schedule.

(2) For the purpose of subarticle (1), the body responsible for

consumer protection shall be responsible to monitor and enforce

compliance by the provider with the requirements listed under the

Fifth Schedule.

(3) For the purposes of subarticle (1) the body responsible to

provide, upon request, information in accordance with article 7(a)(i)

to (vi) shall be the entity fulfilling the role of the European Consumer

Centre in Malta or any other entity as may be designated by the

Minister.

PART VI - MISCELLANEOUS

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 11 Power to take necessary measures. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

It shall be the function of the Minister, in consultation with

other Ministers, to take any additional necessary measures to this Act,

in order to ensure Malta’s fulfilment of its obligations under the

Directive, and to ensure compliance by all concerned with the

provisions of this Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 12 Power of make regulations. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) The Minister may, in consultation with other

Ministers, as the case may require, make regulations for the better

carrying out of any of the provisions of this Act.

(2) Without prejudice to the generality of the aforesaid power,

such regulations may in particular provide for

(a)

the definition of functions of a point of single

contact, its administrative and operational set up and function

including its coordination with the relevant competent

authorities and other bodies established under other laws in

fulfilment of the functions assigned to it;

(b) establishing the sanctions or penalties to which an

offender under this Act may, on being found guilty, become

liable;

(c)

conformity by competent authorities with the

provisions of this Act;

(d) the designation of a body responsible to

communicate with the European Commission for the

introduction of any laws, regulations or administrative

provisions as referred to in the second proviso to article 5(4),

and the procedure to be followed to channel the information to

the European Commission;

(e)

the designation of a national coordinator for the

Internal Market Information System;

(f)

the designation of an Appeals Board to take

cognizance of complaints lodged by a provider against a

competent authority in default of a procedure identified under

its founding and enabling legislation;

(g) prescribing anything which may be required to be

prescribed by this Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 13 Reprint. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Without prejudice to any other law, in any reprint of this

Act, Parts VII to the last Part need not be reproduced and it shall be

sufficient to reproduce Parts I to VI of this Act

Provided that nothing in this article shall be construed as

reducing the validity of anything contained in the parts not so

reproduced.

PART VII

AMENDMENTS TO THE CODE OF ORGANIZATION

AND CIVIL PROCEDURE

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 14 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Code of Organization and Amendments to

Civil Procedure, and it shall be read and construed as one with the the

Organization

Code of Organization and Civil Procedure, hereinafter in this Part and

Procedure.

referred to as "the principal law".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 15 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Sub-paragraph (a) of paragraph 47 of Tariff E in Schedule Amendment of

A of the principal law shall be substituted by the following new sub- Tariff

Schedule A of

the principal

paragraph

law.

"(a) The foregoing provisions of this Tariff shall not

prohibit an Advocate or a Legal Procurator and his client, from

agreeing on a fee, or the basis on which the fee is to be

determined which is different from that established by this

Tariff, and in any such case the agreed fee or basis for

determining it, not being a basis prohibited by law, shall apply,

subject to the provisions of the following sub-paragraphs

Provided that in any case, an Advocate or a Legal

Procurator shall inform his client of the applicable fee or the

basis on which the fee is to be determined before the service is

provided.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 16 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after paragraph 19 of Tariff K in Schedule A Amendment of

of the principal law, there shall e added the following new paragraph: Tariff

Schedule A of

the principal

law.

"20. (a) The foregoing provisions of this Tariff shall not

prohibit a Perit and his client, from agreeing on a fee, or the

basis on which the fee is to be determined which is different

from that established by this Tariff, and in any such case the

agreed fee or basis for determining it, not being a basis

prohibited by law, shall apply, subject to the provisions of the

following sub-paragraphs

Provided that in any case, a Perit shall inform his

client of the applicable fee or the basis on which the fee is to be

determined before the service is provided.

(b) For the purposes of this paragraph, an

agreement concerning fees shall be in writing.".

PART VIII

AMENDMENTS TO THE COMMERCIAL CODE

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 17 Amendments to the Commercial Code. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Commercial Code, and it shall

be read and construed as one with the Commercial Code, hereinafter

in this Part referred to as "the principal law".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 18 Substitution of articles 71, 72, 73 and 73A of the principal law. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Articles 71, 72, 73 and 73A of the principal law shall be

substituted by the following new articles

" Commercial

71. (1) Any person desiring to act as a

agents.

commercial agent, whether alone or in

partnership with any other person, shall notify

the regulatory authority requesting registration,

within thirty days of undertaking this activity.

(2) In order to be registered as a

commercial agent with the regulatory authority

an applicant shall apply in writing to the

authority in such form as the regulatory

authority shall prescribe, containing the full

name and surname, age, private and business

addresses of the applicant and such other

particulars concerning his business or

occupation as the regulatory authority shall

require. In the case of a person applying to be

registered as a commercial agent in partnership,

a reference shall be made in the application to

the statement published in the Gazette in terms

of the Companies Act showing the date of

registration of the partnership and the date on

which the relative certificate of registration was

issued.

(3) The regulatory authority shall not

accept an application for registration to act as a

commercial agent from any person who is in the

employment of the Government of Malta or of

any financial institution, or from any person

holding a warrant to practise a profession in

Malta and actually practising such profession,

or from stockbrokers or from any person who,

whether in Malta or abroad, has been found

guilty of fraudulent bankruptcy.

(4) Notice of any registration under this

article shall be published in the Gazette. In the

month of January of each year, a complete list

of registrations then in force shall likewise be

published in the Gazette.

(5) Any registration carried out under

this article may be withdrawn or suspended by

the regulatory authority, if the person

registered -

(a)

is convicted of any crime

against property;

(b)

is adjudged bankrupt;

(c)

accepts employment under the

Government of Malta, or with any

financial institution, or becomes the

holder of a warrant to practise a

profession and actually practises such

profession or becomes a stockbroker;

(d) is proved, to the satisfaction of

the court, not to be a fit and proper person

to act as a commercial agent.

(6) Such

withdrawal

or

suspension shall be published in the

Gazette.

72. The Minister after consulting the

Power of the

Minister to

regulatory authority may, by regulation,

prescribe fee for

registration.

prescribe the fee to be charged by the regulatory

authority in respect of a registration to act as a

commercial agent under the provisions of the

last preceding article. Any such regulation may

prescribe the payment of an annual fee in

addition to the fee payable on the initial

registration and may provide that in default of

payment of any such annual fee, the registered

person or partnership shall removed from the

register.

73. Without prejudice to the provisions

Penalties.

of article 71(1), any person who, without being

registered, represents himself to be, or acts or

undertakes to act as a commercial agent, shall

be liable

(a)

on a first conviction to a fine

(multa) not exceeding two thousand and

five hundred euro (€2,500); and

(b) on a second or subsequent

conviction, to imprisonment for a term not

exceeding three months or to a fine

(multa) not exceeding five thousand euro

(€5,000).

73A. Where any court has imposed a fine

No grant or renewal

of registration

under this sub-title, and such fine has not been

pending settlement

of fine.

paid, the regulatory authority shall not grant or

renew the registration on the expiry thereof

until such time as the payment of the fine is

effected.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 19 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Articles 79 and 80 of the principal law shall be substituted

Substitution of

articles 79 and

by the following new articles

80 of the

principal law.

" Requirements for

79. (1) Any person desiring to act as a

becoming a public

public broker shall notify the Council of the

broker.

Chamber of Commerce, Enterprise and

Industry, as the authority regulating this

activity, requesting registration, within thirty

days of starting such an activity.

(2) In order to be registered as a public

broker with the regulatory authority, an

applicant shall inform the authority in writing in

such form as the regulatory authority shall

prescribe, containing the full name and

surname, age, private and business addresses of

the applicant and such other particulars

concerning his business or occupation as the

regulatory authority shall require.

(3) Brokers complying with all the

aforesaid formalities shall be registered in a

register administered by the regulatory

authority. Notice of any registration under this

article shall be published in the Gazette. In the

month of January of each year, a complete list

of registrations then in force shall likewise be

published in the Gazette.

80. If a public broker is convicted of any

Forfeiture of office

of public broker.

of the crimes provided for in Sub-titles I, II and

III of Title IX of Part II of Book First of the

Criminal Code, he shall, ipso facto, forfeit his

office, and his name shall be struck off the

register.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 20 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 91 of the principal law shall be substituted by the Substitution of

article 91 of the

following new article

principal law.

" Penalty for

91. (1) A public broker who acts in

contraventions

contravention of any of the obligations

committed by

mentioned in the foregoing articles shall, at the

public brokers.

instance of any interested party or of the

Attorney General, be liable to a penalty of not

less than fifty euro (€50) and not exceeding five

hundred euro (€500) on proceedings taken

before the Civil Court, First Hall, or the Court

of Magistrates (Gozo) in its superior

commercial jurisdiction, as the case may be,

saving any other action arising from this Code

or any other law.

(2) The court may, moreover, order the

interdiction of the public broker for a period not

exceeding two years, in which case the

provisions of article 81 shall, during the time of

interdiction, be applicable.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 21 Substitution of article 550 of the principal law. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 550 of the principal law shall be substituted by the

following new article

" Commercial fees.

550. It shall be possible for commercial

fees, different from those established in the

Schedule hereto, to be agreed between parties.

The service provider shall inform his client of

the applicable fee or the basis on which the fee

is to be determined before the service is

provided.".

PART IX

AMENDMENTS TO THE TRAFFIC (REGULATION)

ORDINANCE

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 22 Amendments to the Traffic (Regulation) Ordinance. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Traffic (Regulation)

Ordinance, and it shall be read and construed as one with the Traffic

(Regulation) Ordinance, hereinafter referred to in this Part as "the

principal law".

(2) This Part shall come into force upon publication of this

Act.

Article 2 of the principal law shall be amended as follows

(a) immediately after the definition "Authority", there

shall be added the following new definition

" "Member State" means a Member State of the

European Economic Area;";

(b) immediately after the definition "public transport

vehicle", there shall be added the following new definition

"Treaty" means the Treaty establishing the

European Community;"; and

(c)

immediately after the proviso thereof, there shall be

added the following new proviso

"Provided further that unless otherwise stated

in this Act, the definitions in the Services (Internal Market)

Act, 2009 shall apply.".

Gazzetta tal-Gvern ta' Malta — Att 2009 23 — ATT Nru. XXIII tal-2009 ATT biex jistabbilixxi disposizzjonijiet [enerali li jiffa`ilitaw it-
Art. 23 — ATT Nru. XXIII tal-2009 ATT biex jistabbilixxi disposizzjonijiet [enerali li jiffa`ilitaw it- Open official source

L-artikolu 2 tal-li[i prin`ipali g]andu ji[i emendat kif [ej

Emenda ta’ l-

artikolu 2 tal-

li[i prin`ipali.

(a)

minnufih wara t-tifsira "sid" g]andha ti\died it-

tifsira [dida li [ejja

" "Stat Membru" tfisser Stat Membru ta\-|ona

Ekonomika Ewropea";

(b) minnufih wara t-tifsira "trasport pubbliku" g]andha

ti\died it-tifsira [dida li [ejja

" "Trattat" tfisser t-Trattat li jistabbilixxi l-

Komunità Ewropea"; u

(`)

minnufih wara l-proviso tieg]u, g]andu ji\died il-

proviso [did li [ej

"I\da wkoll kemm-il darba ma jing]adx xort’o]ra,

g]andhom ikunu japplikaw it-tifsiriet li hemm fl-Att ta’ l-

2009 dwar Servizzi li jing]ataw fis-Suq Intern.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 24 Addition of new article 16B to the principal law. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 16A of the principal law, there

shall be added the following new article 16B

" Applicability of

16B. Nothing in this Ordinance shall be

the Services

construed as limiting, restricting or otherwise

(Internal Market)

affecting the application of any law, regulation

Act, 2009.

or other rule made in pursuance of the Services

(Internal Market) Act, 2009.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 25 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In article 18 of the principal law, after the words "in the Amendment of

opinion of the Authority", there shall be added the words "or, with article

18 of the

principal law.

respect to self-drive car hire, as provided for under this Ordinance or

any other law, regulation or rule".

PART X

AMENDMENTS TO THE POSTAL SERVICES ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 26 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Postal Services Act, and it Amendments to

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

Postal

Services Act.

hereinafter referred to in this Part as "the principal Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 27 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 9 of the principal Act, there shall Addition of new

article 9A to the

be inserted the following new article 9A

principal Act.

" Default of a reply

9A. Due to overriding reasons of public

does not amount to

interest, the absence of a communication within

the granting of a

the time periods provided for in article 9 shall

licence.

not be construed to imply the automatic

granting of the licence applied for, but the

applicant shall, if he considers the delay to be

unjustified or he has suffered any prejudice as a

result of such delay, have a right of appeal in

accordance with the provisions of Part VIII of

the Malta Communications Authority Act.".

PART XI

AMENDMENTS TO THE ACCOUNTANCY PROFESSION

ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 28 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Accountancy Profession Act, Amendments to

and it shall be read and construed as one with the Accountancy the

Accountancy

Profession Act, hereinafter in this Part referred to as "the principal Profession

Act.

Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 29 Amendment of article 2 to the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Subarticle (1) of article 2 of the principal Act shall be

amended as follows

(a) in the definition "accountancy firm" the words "a

partnership whether a civil partnership or a commercial

partnership including a company," shall be substituted by the

words "an entity, regardless of its legal form,";

(b) immediately after the definition "accountancy firm"

there shall be added the following new definition

" "Appeals Tribunal" means the Administrative

Review Tribunal established by article 5(1) of the

Administrative Justice Act;"; and

(c) in the definition "audit firm" the words "a civil

partnership or a commercial partnership, including a company"

shall be substituted by the words "an entity, regardless of its

legal form,".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 30 Amendment of article 3 to the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 3 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, the words "No person shall"

shall be substituted by the words "Except where otherwise

prescribed, no person shall";

(b)

in subarticle (2) thereof -

(i) in paragraph (b) thereof, the word "and" shall

be deleted; and

(ii) in the second proviso to paragraph (d)

thereof, immediately after the words "according to the

particular circumstances;" there shall be added the word

"and";

(c) in subarticle (3) thereof, the words "in any country

outside Malta," shall be substituted by the words "in any third-

country,";

(d) in subarticle (4) thereof, the words "not exceeding

one thousand and one hundred and sixty-four euro and sixty-

nine cents (€1,164.69)" shall be substituted by the words "not

exceeding one thousand and two hundred euro (€1,200.00)", the

words "not exceeding five thousand and eight hundred and

twenty-three euro and forty-three cents (€5,823.43)" shall be

substituted by the words "not exceeding six thousand euro

(€6,000.00)" and the words "not exceeding one hundred and

sixteen euro and forty-seven cents (€116.47)" shall be

substituted by the words "not exceeding one hundred and

twenty euro (€120.00)"; and

(e)

in subarticle (5) thereof, the words "not exceeding

eleven thousand and six hundred and forty-six euro and eighty-

seven cents (€11,646.87)" shall be substituted by the words "not

exceeding twelve thousand euro (€12,000.00)".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 31 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 7 of the principal Act shall be amended as follows

Amendment of

article 7 of the

principal Act.

(a)

in subarticle (1) thereof -

(i) in paragraph (a) thereof, the words "and to

advise the Minister;" shall be substituted by the words

"and, in the case of warrants, whether to advise the

Minister to issue such warrants and, in the case of

practising certificates, to decide whether to issue such

practising certificates;";

(ii) in paragraph (b) thereof, the words "to deal

with" shall be substituted by the words "to deal, through

disciplinary committees appointed under article 7(16),

with";

(iii) in paragraph (c) thereof, the words "per

warrant holder or firm;" shall be substituted by the words

"per warrant holder, practising certificate holder or firm;";

(iv) in paragraph (e) thereof, the words "Directive

2006/34/EC;" shall be substituted by the words "Directive

2006/43/EC;";

(v) paragraphs (h) and (i) thereof shall be

renumbered as paragraphs (j) and (k) respectively;

(vi) immediately after paragraph (g) thereof, there

shall be added the following new paragraphs (h) and (i)

"(h) to carry out all such things as may be

necessary to meet the obligations arising from the

Services (Internal Market) Act, 2009, and to fulfill

the powers, functions and responsibilities attributed

to a competent authority in terms of the same Act,

including the provision of assistance to competent

authorities of other Member States in accordance

with the provisions of the same Act;

(i) to carry out all such things as may be

necessary to meet the obligations arising from

the Mutual Recognition of Qualifications Act;";

(b) in subarticle (13) thereof, immediately after the

words "pertaining to them", there shall be added the words

"within fifteen days after the date on which the change occurs";

(c)

in the proviso to subarticle (13) thereof, the word

"may" shall be substituted by the word "shall"; and

(d) in subarticle (16) thereof, immediately after the

words "under subarticle (1)(b)" there shall be added the words

"or under any regulations made by the Minister in terms of

article 8A,".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 32 Amendment of article 8 to the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 8 of the principal Act shall be amended as follows

(a)

in subarticle (1) thereof -

(i) paragraphs (g), (h), (i) and (j) thereof shall be

renumbered as paragraphs (h), (i), (j) and (l) respectively;

(ii) immediately after paragraph (f) thereof, there

shall be added the following new paragraph (g)

"(g) the procedure to be followed by the Board

in relation to applications for the issue of warrants or

practising certificates under article 4;";

(iii) immediately after paragraph (j) thereof, as

renumbered, there shall be added the following new

paragraph (k)

"(k) the implementation of the powers,

functions and responsibilities attributed to the Board

as a competent authority in terms of the Services

(Internal Market) Act, 2009;";

(iv) in paragraph (l) thereof as renumbered, the

words "fine (multa) of twenty-three thousand, two hundred

and ninety-three euro and seventy-three cents

(€23,293.73)," shall be substituted by the words "fine

(multa) of twenty-five thousand euro (€25,000.00)," and

the words "fine (multa) of one hundred and sixteen euro

and forty-seven cents (€116.47)" shall be substituted by the

words "fine (multa) of one hundred and twenty euro

(€120.00)";

(b)

in subarticle (2) thereof -

(i) the words "of warrant holders and holders of

practising certificates on" shall be substituted by the words

"of warrant holders, practising certificate holders or firms

on";

(ii) in paragraph (a) thereof, the words "holders

and practising certificate holders" shall be substituted by

the words “holders, practising certificate holders or firms";

(iii) in paragraph (b) thereof, the words "warrant

holder or practising certificate holder, or his employees"

shall be substituted by the words "warrant holder,

practising certificate holder, firm or their employees";

(iv) in paragraph (c) thereof, the words "warrant

holders and practising certificate holders;" shall be

substituted by the words "warrant holders, practising

certificate holders and firms;";

(v) in paragraph (i) thereof, the words "any

regulations" shall be substituted by the words "any

provision of this Act and any regulations";

(vi) paragraphs (l), (m) and (n) thereof shall be

renumbered as paragraphs (m), (n) and (o) respectively;

(vii) immediately after paragraph (k) thereof, there

shall be added the following new paragraph (l)

"(l) the implementation of the powers,

functions and responsibilities attributed to the Board

as a competent authority in terms of the Services

(Internal Market) Act, 2009"; and

(viii) in paragraph (m) thereof, as renumbered, the

words "warrant holders and practising certificate holders"

shall be substituted by the words "warrant holders,

practising certificate holders and firms".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 33 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In article 8A of the principal Act, the words "thereunder, in Amendment of

relation to the mutual recognition of qualifications of accountant and article

principal Act.

auditor." shall be substituted by the word "thereunder.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 34 Amendment of article 10 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 10 of the principal Act shall be amended as

follows

(a) in the second proviso to subarticle (1) thereof, the

words "any other service provided by such firms shall not be

incompatible with their main object, as aforesaid." shall be

substituted by the words "a firm may provide other services

subject to compliance at all times with the rules on

independence and professional ethics set out in the Code of

Ethics and any other regulations, directives or guidelines issued

in terms of article 8.";

(b) in sub-article (11) thereof, the words "not exceeding

two thousand and three hundred and twenty-nine euro and

thirty-seven cents (€2,329.37)," shall be substituted by the

words "not exceeding two thousand and five hundred euro

(€2,500.00),", the words "not exceeding eleven thousand and six

hundred and forty-six euro and eighty-seven cents

(€11,646.87)" shall be substituted by the words "not exceeding

twelve thousand euro (€12,000.00)" and the words "not

exceeding two hundred and thirty-two euro and ninety-four

cents (€232.94)" shall be substituted by the words "not

exceeding two hundred and fifty euro (€250.00)".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 35 Amendment of article 11 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (5) of article 11 of the principal Act, the

words "not exceeding five thousand and eight hundred and twenty-

three euro and forty-three cents (€5,823.43)," shall be substituted by

the words "not exceeding six thousand euro (€6,000.00)," and the

words "not exceeding five hundred and eighty-two euro and thirty-

four cents (€582.34)" shall be substituted by the words "not

exceeding six hundred euro (€600.00)".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 36 Amendment of article 12 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In article 12 of the principal Act, the words "not exceeding

fifty-eight thousand and two hundred and thirty-four euro and thirty-

three cents (€58,234.33)" shall be substituted by the words "not

exceeding sixty thousand euro (€60,000.00)".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 37 Amendment of article 15 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (3) of article 15 of the principal Act, the

words "prescribed; and the findings of the said disciplinary

committee shall be subject to such reference back, review or appeal as

may be" shall be deleted.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 38 Addition of new articles 15A to 15C of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 15 of the principal Act, there

shall be added the following new articles 15A, 15B and 15C

" Appeals.

15A. (1) A right of appeal to the Appeals

Tribunal, from the decisions referred to in

article 15B, shall be competent to any person

aggrieved by the decision

Provided that in any case, a person

making an appeal to the Appeals Tribunal shall

also explain his juridical interest in impugning

the decision appealed from.

(2) Unless otherwise provided by the

Administrative Justice Act or any regulations

made thereunder, an appeal from the decisions

referred to in article 15B shall be made by

application and shall be filed in the registry of

the Appeals Tribunal within thirty days from

the date on which the said decision has been

notified to the party appealing.

15B. Unless otherwise provided by law,

Decisions of the

Board that may be

an appeal shall lie to the Appeals Tribunal from

appealed from.

the following decisions made under this Act

(a) any decision of the Board not

to advise the Minister to issue a warrant,

taken pursuant to article 7(1)(a), and any

decision of the Board not to issue a

practising certificate, taken pursuant to

article 7(1)(a);

(b) any decision of the Board

pursuant to article 7(1)(b) taken following

an enquiry held by the disciplinary

committee appointed under article 7(16);

(c)

any decision of the Board to

take a measure in terms of article 7(1)(c);

(d) any

decision

of

the

disciplinary committee to impose an

administrative fine pursuant to article

7(17);

(e)

any decision of the Board to

refuse the registration of a firm pursuant

to article 10(7) or any decision of the

Board pursuant to article 15(1) to

suspend, cancel or subject to other

conditions the registration of a firm or to

revoke or cancel the registration of a firm

pursuant to article 15(2)(e);

(f)

any decision of the Board,

pursuant to article 14, to issue

administrative fines or reprimands or to

impose other measures;

(g) any decision taken by the

Board, pursuant to article 15(1), to

revoke, withdraw or suspend a practising

certificate, or to subject such practising

certificate to other conditions, or to

revoke or cancel a practising certificate

pursuant to article 15(2)(e);

(h) any decision taken by the

Board, pursuant to article 15(1), to

suspend a warrant or to subject such

warrant to other conditions;

(i)

any decision taken by the

Minister, on the advice of the Board,

pursuant to article 15(1) or article

15(2)(d), to revoke or withdraw a

warrant; and

(j)

any decision taken in terms of

regulations or directives issued under this

Act, when the regulation or directive

explicitly grants a right of appeal in terms

of this article.

15C. (1) The decision of the Board or

Status of decision

pending an appeal

the Minister, as the case may be, shall stand

before the Appeals

Tribunal or the

pending an appeal, whether before the Appeals

Court of Appeal.

Tribunal or the Court of Appeal, and shall be

adhered to by all the parties to whom the

decision applies.

(2) The Appeals Tribunal 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 of the Board or the Minister, as the

case may be, pending the final determination of

the appeal. The Appeals Tribunal or the Court

of Appeal, in deciding to suspend the decision,

shall state their reasons for doing so.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 39 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (2) of article 16 of the principal Act, the Amendment of

words "of article 3(5)" shall be substituted by the words "of article article

principal Act.

3(6)".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 40 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Subarticle (1) of article 17 of the principal Act shall be Amendment of

article 17 of the

substituted by the following

principal Act.

"(1) An auditor shall, in the case of his dismissal or

resignation as auditor of an audit client during his term of

appointment, inform the Board in writing of such dismissal or

resignation of an audit and shall give adequate explanations for

the reasons thereof.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 41 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (1) of article 18 of the principal Act, the Amendment of

words "shall publish on their websites, within three months of each article

principal Act

calendar year, annual transparency reports that include" shall be

substituted by the words "shall, within three months of each calendar

year, publish an annual transparency report on their website, and

maintain such report on their website until the publication of a

transparency report the following calendar year, that shall include".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 42 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 20 of the principal Act shall be amended as Amendment of

article 20 of the

follows

principal Act.

(a) in the marginal note thereof, immediately after the

words "Disclosure of measures" there shall be added the words

"and decisions";

(b) the present article shall be renumbered as subarticle

(1) thereof; and

(c)

immediately after subarticle (1) thereof, as

renumbered, there shall be added the following new subarticle

"(2) Without prejudice to the generality of

subarticle (1), the Board or the Minister, as the case may

be, shall notify by registered mail the decisions taken

pursuant to articles 7(1)(a), 7(1)(b), 7(1)(c), 7(17), 10(7),

14, 15(1), 15(2)(d) and 15(2)(e) to any person to whom

such decision applies.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 43 Addition of new article 21 to the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 20 of the principal Act, there

shall be added the following new article

" Demonstration of

21. A warrant holder, practising

compliance with

certificate holder or firm shall, if so requested

Services (Internal

by the Board and in the manner determined by

Market) Act,

2009. the Board, demonstrate compliance with the

obligations imposed on such warrant holder,

practising certificate holder or firm pursuant to

the Services (Internal Market) Act, 2009.".

PART XII

AMENDMENTS TO THE DOORSTEP CONTRACTS ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 44 Amendments to the Doorstep Contracts Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Doorstep Contracts Act, and it

shall be read construed as one with the Doorstep Contracts Act,

hereinafter referred to in this Part as "the principal Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 45 Amendment of article 2 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In article 2 of the principal Act, immediately after the

definition "goods", there shall be added the following new definition

" "Member State" means a State which is a contracting

party to the Agreement on the European Economic Area signed

at Oporto on the 2nd May, 1992 as amended by the Protocol

signed at Brussels on the 17th March, 1993 and as amended by

any subsequent acts;";

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 46 Deletion of articles 4 and 5 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Articles 4 and 5 of the principal Act shall be deleted.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 47 Renumbering of article 5A of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 5A of the principal Act shall be renumbered as

article 4 thereof.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 48 Addition of new articles 6A and 6B to the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 6 of the principal Act, there shall

be added the following new articles 6A and 6B

" Obligation of the

6A. (1) Every licensed door-to-door

door-to door seller

seller has to provide to the consumer free of

to give all

charge, and of his own initiative the following

information

necessary of his

information

own initiative.

(a)

his name, legal status and

whether he is operating as a commercial

partnership, and what type of commercial

partnership, the address of the

commercial premises in the Member State

in which he is established and details

enabling him to be contacted rapidly and

communicated with directly and, as the

case may be, by electronic means;

(b) if he is registered as a

commercial partnership under the

Companies Act or under the Commercial

Partnerships Ordinance under article 5 of

the Companies Act, the number of

registration and all information relating to

article 6 of the Companies Act;

(c)

the particulars of the relevant

competent authority issuing the license of

a door-to-door seller or the single point of

contact;

(d) where the provider exercises

an activity which is subject to VAT, the

identification number referred to in

Article 22(1) of Sixth Council Directive

77/388/EEC of 17 May 1977 on the

harmonisation of the laws of the Member

States relating to turnover taxes -

Common system of value added tax;

(e)

in the case of the regulated

professions, any professional body or

similar institution with which the door-to-

door seller is registered, the professional

title and the Member State in which that

title has been granted;

(f)

the general conditions and

clauses used by the provider.

(2) In addition to the provisions of sub-

article (1), every door-to-door seller duly

licensed has to provide free of charge and on

his own initiative, to the consumer, the

following information

(a) the existence of contractual

clauses, if any, used by the provider

concerning the law applicable to the

contract and, or the competent courts;

(b) the existence of an after-sales

guarantee, if any, not imposed by law;

(c)

the price of the service, where

a price is pre-determined by the provider

for a given type of service;

(d) the main features of the

service, if not already apparent from the

context.

(3) All information referred to in sub-

article (1) according to the provider’s

preference -

(a)

has to be easily accessible to

the consumer at the place where the

service is provided or the contract

concluded;

(b) must be easily accessed by the

recipient electronically by means of an

address supplied by the provider, and;

(c)

must

appear

in

any

information documents, supplied to the

consumer by the door-to-door seller,

which set out a detailed description of the

service he provides.

6B. (1) Every door-to-door seller at the

Information to be

given by door-to-

consumer’s request has to provide the

door seller on the

consumer’s

following additional information

request.

(a)

where the price is not pre-

determined by the provider for a given

type of service, the price of the service or,

if an exact price cannot be given, the

method for calculating the price so that it

can be checked by the recipient, or a

sufficiently detailed estimate;

(b) as regards the regulated

professions,

a reference to

the

professional rules applicable in the

Member State of establishment and how

to access them;

(c)

information

on

the

multidisciplinary

activities

and

partnerships which are directly linked to

the service in question and on the

measures taken to avoid conflicts of

interest. That information shall be

included in any information document in

which door-to-door sellers give a detailed

description of their services;

(d) any codes of conduct to which

the provider is subject and the address at

which these codes may be consulted by

electronic means, specifying the language

version available;

(e)

where a provider is a member

of a trade association or professional

body which provides for recourse to a

non-judicial means of dispute settlement,

information in this respect. The provider

shall specify how to access detailed

information on the characteristics of, and

conditions for, the use of non-judicial

means of dispute settlement.

(2) Any information as required in sub-

article (1) is to be made available or

communicated in a clear and unambiguous

manner, and in good time before conclusion of

the doorstep contract.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 49 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In article 14A of the principal Act, for the words "other Amendment to

than articles 5 and 5A", there shall be substituted the words "other article

14A of

the principal

than article 4".

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 50 Substitution of article 15 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 15 of the principal Act shall be substituted by the

following new article

"15. The Minister may make regulations for better

putting into effect any of the provisions of this Act, and without

prejudice to the generality of the foregoing may by such

regulations prescribe

(a) the form in which any contract or cancellation

or any clause thereof shall be made, whether generally or

in respect of any class of goods;

(b) the means of identification of any door-to-

door seller licensed under this Act;

(c) such goods or services that may not be sold

by means of a doorstep contract;

(d) any other matter which may be prescribed

under this Act.".

PART XIII

AMENDMENTS TO THE ENGINEERING PROFESSION ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 51 Amendments to the Engineering Profession Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Engineering Profession Act,

and it shall be read and construed as one with the Engineering

Profession Act, hereinafter in this Part referred to as "the principal

Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 52 Amendment of article 2 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 2 of the principal Act shall be amended as follows

(a)

in the definition "Board", for the words

"Engineering Board" there shall be substituted the word

"Engineering Profession Board";

(b) immediately after the definition "Engineer" there

shall be inserted the following new definition

" "Member State" means a Member State of the

European Economic Area;";

(c)

in the definition "Minister", for the word

"infrastructure" there shall be substituted the word "works"; and

(d)

immediately after the definition "profession of

engineer" there shall be inserted the following new definition

" "service provider" means a person from any

Member State or any country in the European Economic

Area who exercises the engineering profession on a

temporary basis in Malta;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 53 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 3 of the principal Act shall be amended as follows

Amendment of

article 3 of the

principal Act.

(a)

in subarticle (2) thereof -

(i) in paragraph (a) thereof, immediately after

the words "he is a citizen of Malta" there shall be added the

words "or of a Member State or is otherwise legally

entitled to work in Malta"; and

(ii) for subparagraph (i) of paragraph (d) thereof,

there shall be substituted the following

"(i) he is in possession of such degree of the

University of Malta or an equivalent academic

qualification relating to the engineering profession

both of which, at the relevant time, are recognised by

the Board to be sufficient for the purposes of this

article;"; and

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

be added the following new subarticle

"(5) Subarticle (2) shall be interpreted in

accordance with the Recognition of Professional

L.N. 422 of

2007. Qualifications Regulations, 2007.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 54 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 3 of the principal Act there shall Addition of new

article 3A to the

be added the following new article

principal Act.

" Acknowledge-

3A. (1) The Board shall acknowledge

ment of receipt

the receipt of an application for a warrant as soon

of an

as possible and in any case not later than one

application.

month from the date of the receipt of the

application. If the applicant does not submit all

the documentation, the Board shall inform the

applicant accordingly.

(2) The Board shall complete the

procedure for examining applications as early as

possible. The Board shall give its reasoned

decision within three months after the date on

which the complete application is received. The

Board may extend this period by one month,

provided that the applicant is notified prior to the

expiration of the original period established in

this sub-article.

(3) In the event that the Board does not

give its decision within the period established in

sub-article (2), this shall not imply tacit approval

of the application.

(4) The acknowledgement referred to in

sub-article (1) shall specify

(a)

the time period within which the

application shall be processed;

(b)

the available means of redress;

and

(c)

a statement that in the absence

of a response within the specified time

period, the authorisation shall not be

deemed to have been granted.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 55 Amendment of article 5 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (1) of article 5 of the principal Act

immediately after the words "grant a special licence to any person

holding" there shall be added the words "academic qualifications at

least equivalent to those listed in article 3(2)(d) and who is a national

of a country outside the European Union or the European Economic

Area, and therefore does not fall within the ambit of articles 3 and 5B

and holding".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 56 Addition of new article 5B to the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 5A of the principal Act there

shall be added the following new article

" Temporary

5B. (1) Without prejudice to the Mutual

provision of

Recognition of Qualifications Act and

services.

notwithstanding the provisions of article 3 of this

Act, any person established in another Member

State may practise the profession of engineer in

Malta on a temporary and occasional basis

provided that such person

(a) is legally established in another

Member State for the purpose of pursuing

the engineering profession in that Member

State; and

(b) has pursued the engineering

profession for at least two years during the

ten years immediately preceding the

provision of services where the engineering

profession is not regulated in that Member

State.

(2) Persons referred to in subarticle (1)

shall inform the Board by means of a written

declaration to be made in advance which shall

include the following

(a) the details of an insurance cover

or other means of personal or collective

protection relative to professional liability.

This declaration shall be made once a year if

the applicant intends to provide temporary

or occasional services during the year;

(b) proof of the nationality of the

applicant;

(c) an attestation certifying that the

warrant holder is legally established in a

Member State for the purpose of pursuing

the activities concerned and that he is not

prohibited from practising the profession of

engineer even temporarily, at the moment of

delivering the attestations;

(d) evidence

of

professional

qualifications; and

(e) where applicable, any means of

proof that the applicant has pursued the

engineering profession for at least two years

during the previous ten years immediately

preceding the provision of services.

(3) Where the Board, in exercising its

authority under this article, deems that there is a

substantial difference between the professional

qualifications of the applicant and the academic

qualifications required under article 3(2)(d)(i), to

the extent that the difference is such as to be

harmful to public health, safety and security, the

Board shall give the applicant the opportunity to

show, in particular by means of an aptitude test,

that he has acquired the knowledge or

competence which he lacks.

(4) The Board shall assess the temporary

and occasional nature of the provision of the

engineering services on a case by case basis.

(5) (a)

The Board shall give its decision

within one month from the date of receipt of the

declaration referred to in sub-article (2).

(b) Whenever a decision could not be

given during the established time, the Board shall

notify this information to the applicant within the

period established in paragraph (a). The Board

shall extend this period only once for another

period of one month.

(c) In the event that the Board does not

give its decision within the period referred to in

paragraph (b), the engineering services falling

under this article may be provided.

(6) A person exercising the profession

under this article shall be deemed to be a warrant

holder and the provisions of this Act and of any

other law shall apply to him in the same manner

and to the same extent as with any other warrant

holder.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 57 Amendment of article 6 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 6 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words "Engineering

Board" there shall be substituted the words "Engineering

Profession Board"; and

(b) immediately after subarticle (8) thereof, there shall

be added the following new subarticle

"(9) The Board shall, in the fulfilment of its

functions, act independently and impartially.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 58 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 7 of the principal Act there shall Addition of new

article 7A to the

be added the following new article

principal Act.

" Appeals.

7A. Decisions of the Board shall be subject

to appeal before the Administrative Review

Tribunal established by article 5(1) of the

Administrative Justice Act.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 59 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 10 of the principal Act shall be amended as Amendment of

article 10 of the

follows

principal Act.

(a)

in subarticle (1) thereof, for the words from "Every

warrant holder" to the words "committed by the warrant holder,"

there shall be substituted the words "Every warrant holder or

any person who is granted a special licence under this Act, or

any person who exercises the profession of engineer on a

temporary and occasional basis or partnership registered under

this Act shall be covered by an indemnity insurance against any

liability which the warrant holder or any person who is granted

a special licence under this Act, or any person who exercises the

profession on a temporary and occasional basis or the

partnership may incur for compensation in respect of loss or

damage to any person as a result of any negligent act, error or

omission committed by the warrant holder, or by any person

who is granted a special licence under this Act, or any person

who exercises the profession on a temporary and occasional

basis,";

(b) in the proviso to subarticle (1) thereof, immediately

after the words "that the provisions of this subarticle shall not

apply to warrant holders" there shall be added the words "or to

any person who exercises the profession of engineer on a

temporary and occasional basis";

(c)

the present subarticle (2) shall be renumbered as

subarticle (3) thereof and for the words, "Every warrant holder"

there shall be substituted the words "Every person"; and

(d) immediately after subarticle (1) thereof, there shall

be added the following new subarticle

"(2) The Board shall only accept any professional

liability insurance of any person providing the services of

engineering in terms of article 5B(1) if the Board considers

that the professional liability insurance subscribed to is

equivalent or essentially comparable as regards the

purpose and cover it provides in terms of insured risk. The

Board shall require supplementary insurance or guarantee

in those cases when the professional liability insurance is

not adequate to cover all risks.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 60 Amendment of article 11 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 11of the principal Act shall be amended as follows

(a)

in subarticle (1) thereof, immediately after the

words, "Any agreement or other arrangement purporting to

exempt a warrant holder" there shall be added the words "or any

person who is granted a special licence under this Act, or any

person who exercises the profession of engineer on a temporary

and occasional basis"; and

(b) in subarticle (2) thereof, immediately after the

words, "Any agreement or other arrangement whereby a warrant

holder" there shall be added the words "or a person who is

granted a special licence under this Act, or any person who

exercises the profession of engineer on a temporary and

occasional basis,".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 61 Amendment of article 19 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (4) of article 19 of the principal Act,

immediately after the words, "Any person who, not being the holder

of a warrant or a special licence" there shall be added the words "or

who is otherwise not entitled to practise temporarily".

PART XIV

AMENDMENTS TO THE EDUCATION ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 62 Amendments to the Education Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Education Act and it shall be

read and construed as one with the Education Act, hereinafter in this

Part referred to as "the principal Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 63 Amendment of article 20 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 20 of the principal Act shall be amended as

follows

(a) in subarticle (2) thereof, for the words "the national

minimum conditions:" there shall be substituted the words "the

national minimum conditions." and the proviso thereto shall be

deleted;

(b) in subarticle (6) thereof, immediately after the

words "received by the Minister." there shall be added the words

"A decision to refuse an application for a licence shall be

accompanied with the reasons for refusal. Failure to notify the

applicant about the decision regarding an application for a

licence within the time established in this sub-article shall, for

reasons of public interest, be deemed to be a refusal of the

licence applied for:" and immediately thereafter there shall be

inserted the following new provisos

"Provided that an application for a licence to

establish a school shall not be deemed to have been filed

by an applicant unless it is duly filled in and accompanied

with all required information and documentation

Provided further that in the case of an

application made under subarticle (2), an application for a

licence to establish a school shall not be deemed to have

been submitted by the Catholic Church if such application

is not signed by the Bishops in Ordinary of these Islands or

authorised by them in writing.";

(c) in subarticle (9) thereof, for the words "further or

higher education level." there shall be substituted the words

"further or higher education level:" and immediately thereafter

there shall be inserted the following new proviso

"Provided that where an applicant for a

licence is already licensed or otherwise legally established

in a Member State, the Minister, in compliance with

Directive 2006/123 of the European Parliament and of the

Council of 12 December, 2006 on services in the internal

market, shall not duplicate requirements or controls which

are equivalent or essentially comparable as regards their

purpose to which the applicant may already be subject to in

another Member State."; and

(d) for subarticle (10) thereof, there shall be substituted

the following

"(10) Where an application has been refused,

suspended or cancelled, the applicant for a licence may

appeal to the Court of Appeal (Inferior Jurisdiction)

according to the provisions of article 127.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 64 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (1) of article 28 of the principal Act, for the Amendment of

words "as the Council may require." there shall be substituted the article

principal Act.

words "as the Council may require:" and immediately thereafter there

shall be inserted the following new proviso

"Provided that an application made under this article

shall not be deemed to have been filed by an applicant unless it

is duly filled in and accompanied with all required information

and documentation.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 65 Amendment of article 32 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (1) of article 32 of the principal Act,

immediately after the words "to refuse an application for the issuing

of a warrant," there shall be inserted the words "or where no decision

has been notified to the applicant within the time established in article

29,".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 66 Addition of new article 33A to the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 33 of the principal Act, there

shall be inserted the following new article

" Temporary

33A. Any person established in a Member

provision of

State may practise the profession of teacher in

services.

Malta on a temporary and occasional basis

provided that the provisions of Part II of the

Recognition of Professional Qualifications

L.N. 422 of

2007. Regulations, 2007 are satisfied.".

PART XV

AMENDMENTS TO THE MALTA TRANSPORT AUTHORITY

ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 67 Amendments to the Malta Transport Authority Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Malta Transport Authority Act,

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

Authority Act, hereinafter referred to in this Part as "the principal

Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 68 Amendment of article 2 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 2 of the principal Act shall be amended as follows

(a)

immediately after the definition "licence", there

shall be added the following new definition

" "Member State” means a Member State of the

European Economic Area;"; and

(b) immediately after the definition "transport of

goods", there shall be added the following new definition

" "Treaty" means the Treaty establishing the

European Community;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 69 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 2A of the principal Act shall be renumbered as Renumbering of

article 2A of the

article 2B thereof.

principal Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 70 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 2 of the principal Act, there shall Addition of new

article 2A to the

be added the following new article 2A

principal Act.

" Definitions in

2A. Unless otherwise stated in this Act,

Services (Internal

the definitions in the Services (Internal Market)

Market) Act,

Act, 2009 shall apply.".

2009.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 71 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after paragraph (r) of article 4(1) of the Amendment of

article 4 of the

principal Act, there shall be added the following new paragraph

principal Act.

"(s) to do all such things as are necessary for facilitiating

the exercise of freedom of establishment of service providers

and the free movement of services in accordance with the

Services (Internal Market) Act 2009, including providing

applicants, providers or recipients with such relevant

information and assistance as is necessary to access and

exercise relevant service activities and all such rights as are

related thereto, and, where required, cooperating with, assisting,

and providing information to the competent authorities of other

Member States

Provided that in fulfilling the above functions and

duties, the Authority shall facilitiate and encourage

communication by electronic means.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 72 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after subarticle (6) of article 34 of the Amendment of

principal Act, there shall be added the following new sub-article (7): article

principal Act.

"(7) Nothing in this article shall be construed as limiting,

restricting or otherwise affecting any law, regulation or other

rule made in relation to the conditions and criteria under which

the Authority may grant, renew, refuse to grant, refuse to renew,

suspend or revoke a licence for service activities falling within

the scope of application of the Services (Internal Market) Act,

2009

Provided that services in the field of transport as set

out in Article 45 of the Treaty shall not be deemed to be

included within the scope of application of the Services

(Internal Market) Act, 2009

Provided further that, without prejudice to the

definition of "licence" in article 2, where the Authority requires

a certificate, attestation or document proving that a requirement

has been satisfied in terms of the Services (Internal Market) Act

2009, the Authority shall accept any certificate, attestation or

document from another Member State which serves the

equivalent purpose or from which it is clear that the said

requirement has been satisfied and shall not require any such

certificate, attestation or document to be produced in its original

form or as a certified copy or certified translation save in cases

provided for in Community instruments or where it is justified

by an overriding reason relating to the public interest, including

public order and public security.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 73 Addition of new article 35 to the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 34 of the principal Act, there

shall be added the following new article 35

" Services falling

35. Where service activities fall within

within the scope of

the scope of application of the Services

the Services

(Internal Market) Act 2009, the Authority shall

(Internal Market)

Act, 2009.

respect the right of a provider that is lawfully

established and providing services in another

Member State to provide services in Malta

Provided that the Authority may

impose requirements with regard to the

provision of service activities where these are

justified for reasons related to public policy,

public security, public health or the protection

of the environment

Provided further that in establishing

whether a provider is exercising his freedom to

provide services within the meaning of article 6

of the Services (Internal Market) Act, 2009 and

Article 49 of the Treaty, or is an establishment

case, or whether a service provider is

absolutely taking advantage of the freedom to

provide services, the Authority shall assess and

decide in each case on its own individual merits

and in conformity with Community legislation

and the rulings of the European Court of

Justice.".

PART XVI

AMENDMENTS TO THE EMPLOYMENT AND TRAINING

SERVICES ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 74 Amendments to the Employment and Training Services Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Employment and Training

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

Employment and Training Services Act hereinafter in this Part

referred to as "the principal Act".

(2) This Part shall come into force upon publication of this

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 75 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 2 of the principal Act shall be amended as follows

Amendment of

article 2 of the

principal Act.

(a)

for the definition "Director", there shall be

substituted the following new definition

" "Director" means the Director of Industrial and

Employment Relations and includes any officer of the

Department of Industrial and Employment Relations who

is authorized by the Director to act on his behalf;"; and

(b) immediately after the definition "financial year",

there shall be inserted the following new definition

" "Member State" means a member state of the

European Union or of the European Economic Area;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 76 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 23 of the principal Act shall be amended as Amendment of

article 23 of the

principal Act.

(a)

subarticle (1) thereof shall substituted by the

following new subarticle

"(1) Without prejudice to the provisions of Part III

of this Act, no person shall carry on an employment

agency or an employment business unless

(a)

he is the holder of a current licence

granted by the Director authorizing him to carry on

such an agency or business in premises specified in

the licence, or

(b)

he is the holder of a relevant authorization

to conduct business as an employment agency by a

competent authority in a Member State, and has

notified the Director of his intention to provide or

that he is providing services of an employment

agency in Malta within five working days from the

date of the commencement of this activity

Provided that for the purposes of this article,

the term ‘relevant authorisation’ means the authorization

to perform the services of an employment agency issued by

a competent authority of a Member State and it shall be

read and construed in terms of the Services (Internal

Market) Act, 2009

Provided further that the Director may

impose any necessary requirements on holders of relevant

authorizations referred to in paragraph (b) in terms of the

Services (Internal Market) Act, 2009.";

(b)

subarticles (2) to (13) thereof shall be deleted; and

(c)

subarticle (14) thereof shall be renumbered as sub-

article (2).

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 77 Amendment of article 24 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Subarticle (1) of article 24 of the principal Act shall be

substituted by the following new subarticle

"(1) Where the Director intends to refuse to grant or

transfer a licence, or to revoke the same, he shall notify the

applicant for, or the holder of, the licence or the person to whom

it is requested that the licence be transferred, of his intention

and the reasons therefor.".

PART XVII

AMENDMENTS TO THE PERITI ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 78 Amendments to the Periti Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Periti Act, and it shall be read

and construed as one with the Periti Act, hereinafter in this Part

referred to as "the principal Act".

(2) This Part shall come into force upon publication of this

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 79 Amendment of article 2 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In article 2 of the principal Act, immediately after the

definition "profession", there shall be added the following new

definitions

" "service provider" means a person from any Member

State or any country in the European Economic Area who

exercises the profession on a temporary basis in Malta;

"Treaty" means the Treaty establishing the European

Community;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 80 Amendment of article 3 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediadely after subarticle (2) of article 3 of the

principal Act, there shall be added the following new subarticle

"(3) Subarticle (2) shall be interpreted in

accordance with the Recognition of Professional

2007. Qualifications Regulations, 2007.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 81 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 5 of the principal Act there shall Addition of new

be added the following new article

5A. Without prejudice to the Mutual

Recognition

of

Qualifications

Act

and

notwithstanding the provisions of articles 3 and 4

of this Act, any person established in another

Member State may practice the profession in Malta

on a temporary and occasional basis subject to

further requirements as may be provided under this

Act.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 82 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

For subarticle (2) of article 7 of the principal Act, there Amendment of

shall be substituted the following new subarticle

"(2) The Board shall exercise its functions independently

and according to its own judgment. In the exercise of its

functions the Board may

(a) consult such persons as it may consider

necessary; and

(b) appoint committees under the chairmanship

of a member of the Board for the purpose of the carrying

out of such duties and tasks as the Board may assign to

them.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 83 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 7 of the principal Act there shall Addition of new

be added the following new article

7A. Decisions of the Board shall be subject

to appeal before the Administrative Review

Tribunal established by article 5(1) of the

Administrative Justice Act.".

PART XVIII

AMENDMENTS TO THE MALTA TRAVEL

AND TOURISM SERVICES ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 84 Amendments to the Malta Travel and Tourism Services Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Malta Travel and Tourism

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

Travel and Tourism Services Act, hereinafter referred to in this Part

as "the principal Act".

(2) This Part shall come into force upon publication of this

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 85 Amendment of article 2 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In article 2 of the principal Act

(a)

immediately after the definition "licence" there shall

be inserted the following new definition

" "Member State" means a member state of the

European Economic Area;";

(b) immediately after the definition "public officer"

there shall be added the following definition

" "requirement" means any obligation, prohibition,

condition or limit provided for in the laws or regulations,

or in the administrative provisions, or administrative

practices of the Authority;"; and

(c)

the definition "tourist guide" shall be deleted and

substituted by the following

" "tourist guide" means a person who guides

visitors in the language of their choice and interprets the

cultural and natural heritage of Malta and/or specific area

or areas, and who possesses a specific relevant

qualification and licence issued and/or recognised by the

Authority;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 86 Substitution of article 17 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 17 of the principal Act shall be substituted by the

following new article

17. (1) Any member of the Authority or

of any committee, commission or other body

established by this Act who is in any way, directly

or indirectly interested in any particular matter

considered or to be considered by the Authority or

by such other body shall declare the nature of his

interest either at the meeting at which the matter is

first considered or, if he was not at the date of that

meeting so interested in the matter, at the next

meeting after he shall have become so interested.

(2) Without prejudice to the provisions of

subarticle (1), where at a meeting of the Authority

or by such other body any of the following matters

arises, namely -

(a)

an arrangement to which the

Authority is a party or a proposed such

arrangement, or

(b) a contract or other agreement

with the Authority or a proposed such

contract or other agreement, or

(c)

the assessment of any application

for the issue or renewal of a licence or other

authorisation and any decision relating

thereto, or

(d) any decision of the Authority

taken after reviewing the methods of

operation of a licensee, or

(e)

any other particular matter in

which any member of the Authority or such

other body is in any way, directly or

indirectly interested,

then, any member of the Authority present at the

meeting who otherwise than in his or her capacity

as such a member has a material interest in the

matter, shall -

(i) at the meeting, disclose to

the Authority the fact of such interest

and the nature thereof,

(ii) absent himself or herself

from the meeting or that part of the

meeting during which the matter is

being discussed,

(iii) take no part in any

deliberation of the Authority relating to

the matter, and

(iv) not vote on a decision

relating to the matter.

(3) Where a material interest is disclosed

pursuant to subarticle (2), the disclosure shall be

recorded in the minutes of the meeting concerned

and, for so long as the matter to which the

disclosure relates is being dealt with by the

meeting, the member by whom the disclosure is

made shall not be counted in the quorum for the

meeting.

(4) A member of the Authority who,

otherwise than in his or her capacity as such a

member has a material interest in -

(a) an arrangement or proposed

arrangement to which subarticle (2)(a)

applies; or

(b) a contract or other agreement or a

proposed contract or other agreement to

which subarticle (2)(b) applies; or

(c)

the assessment of any application

for the issue or renewal of a licence or other

authorisation and any decision relating

thereto; or

(d) any decision of the Authority

taken after reviewing the methods of

operation of a licensee; or

(e)

any other particular matter in

which any member of the Authority or by

such other body is in any way, directly or

indirectly, interested,

shall neither influence nor seek to influence any

decision to be made by the Authority in relation

thereto.

(5) Where at a meeting of the Authority a

question arises as to whether or not a course of

conduct, if pursued by a member of the Authority,

would constitute a failure by him or her to comply

with the requirements of subarticles (2) and (3),

the question may, subject to subarticle (6), be

determined by the chairperson of the meeting,

whose decision shall be final, and where such a

question is so determined, particulars of the

determination shall be recorded in the minutes of

the meeting.

(6) Where at a meeting of the Authority, the

chairperson of the meeting is the member in

respect of whom a question to which subarticle (5)

applies falls to be determined, then the other

members of the Authority attending the meeting

shall choose one of their number to be chairperson

of the meeting for the purpose of determining the

question concerned.

(7) Where the Minister is satisfied that a

member of the Authority has acted contrary to any

of the provisions of this article, the Minister may,

if he or she thinks fit, remove that member from

office and, where a person is removed from office

pursuant to this subarticle, he or she shall

thenceforth be disqualified for membership of the

Authority.

(8) The term ‘material interest’ in this

article shall include, but not be limited to, being in

the same type of business as the applicant, or

licensee, as the case may be.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 87 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 18 of the principal Act shall be amended as Amendment of

(a) in subarticle (4) after the word "specified.", the

following paragraph shall be added

"Provided that the renewal of the licence shall only

be subject to the continued fulfilment of the relevant

applicable requirements current at the time."; and

(b) subparagraph (7) shall be deleted and substituted by

the following

"(7) A licence may be granted or renewed as

subject to such requirements, conditions, limitation and

exclusions as the Authority may consider necessary,

appropriate and proportionate in accordance with this

Act.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 88 Amendment of article 19 of the follows: principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 19 of the principal Act shall be amended as

(a)

in paragraph (a), for the words "or provides such

accommodation," there shall be substituted the words "or

provides such accommodation." and the words ", and in addition

the person who will in fact operate as aforesaid will be qualified

and, or experienced to so operate to the satisfaction of the

Authority;" shall be deleted; and

(b) in paragraph (a) after the paragraph ending with the

words "or who in fact effects such operation or provides such

accommodation.", there shall be added the following paragraph

"The person who will be responsible for such

operation or provision of accommodation or who in fact

effects such operation or provides such accommodation

possesses the skills and competencies necessary to operate

a business of a hotel, guest house, hostel, holiday premises

or catering establishment or to provide accommodation to

tourists in a house, as the case may be, proven to the

satisfaction of the Authority by means of either a relevant

formal qualification from a recognised training institution

or at least two years experience in the management of a

similar business activity;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 89 Amendment of article 20 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In article 20 of the principal Act the words "be transferred

to any person who in the opinion of the Authority has the attributes

mentioned in article 19(1)(a)" shall be deleted and substituted by the

words "be transferred to any person who fulfils the requirements

mentioned in article 19(1)(a)".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 90 Amendment of article 27 of the follows: principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 27 of the principal Act shall be amended as

(a)

in subarticle (2) after the words "as may be

specified." there shall be added the following proviso

"Provided that the renewal of the licence shall only

be subject to the continued fulfilment of the relevant

applicable requirements current at the time."; and

(b) for subarticle (4) there shall be substituted the

following

"(4) A licence may be granted or renewed as

subject to such requirements, conditions, limitations and

exclusions as the Authority may consider necessary,

appropriate and proportionate in accordance with this

Act.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 91 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Subarticle (a) of article 28 of the principal Act shall be Amendment of

article 28 of the

deleted and substituted by the following

principal Act.

"(a) the person applying thereof is of good character

standing and is fit and proper to be granted and operate a licence

in relation to the business of an incoming tourism agent or a

travel agent or of a destination management company, as the

case may be

Provided that if the applicant is a body corporate -

(i)

the requirements mentioned in the

preceding paragraph shall apply to that person designated

to be responsible for the management of the business

activity being licensed;

(ii)

the person applying thereof possesses the

skills and competencies necessary to operate a business of

an incoming tourism agent, or of a travel agent or of a

destination management company as the case may be,

proven to the satisfaction of the Authority by means of

either a relevant formal qualification from a recognised

training institution or at least two years experience in the

management of a similar business activity

Provided further that where the applicant is a body

corporate, the requirements mentioned in the preceding

paragraph shall apply to that person designated to be

responsible for the management of the business activity

being licensed;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 92 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (1) of article 30 of the principal Act, the Amendment of

words "in the opinion of the Authority satisfies the provisions of article

principal Act.

section 28 of this Act" shall be deleted and substituted by the words

"fulfils the requirements of article 28".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 93 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Subarticle (1) of article 31 of the principal Act shall be Amendment of

article 31 of the

deleted and substituted by the following

principal Act.

"(1) Every tourism operation requiring a licence under

this Act, except a licence to act as a tourist guide unless

specifically prescribed in Regulations made under this Act, shall

satisfy the Authority that it has at all times in its favour a policy

of third party liability insurance and, in addition, or if required

by the Authority, a policy of professional indemnity insurance,

which policy or policies shall indemnify it, and any person

employed by it, or otherwise acting for it, to such amount, in

such manner and in respect of such matters as the Authority

may establish.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 94 Amendment of article 32 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 32 of the principal Act shall be amended as

follows

(a)

in subarticle (2), after the words "as may be

specified." there shall be added the following proviso

"Provided that the renewal of the licence shall only

be subject to the continued fulfilment of the relevant

applicable requirements current at the time."; and

(b) subarticle (4) shall be deleted and substituted by the

following

"(4) A licence may be granted or renewed as

subject to such requirements, conditions, limitations and

exclusions as the Authority may consider necessary,

appropriate and proportionate in accordance with this

Act.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 95 Amendment of article 33 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Subarticle (a) of article 33 of the principal Act shall be

deleted and substituted by the following

"(a) (i) the person applying thereof is of good character

standing and is fit and proper to be granted and operate a licence

in relation to the business of an organised excursion operator

Provided that if the applicant is a body corporate, the

requirements mentioned in the preceding paragraph shall apply

to that person designated to be responsible for the management

of the business activity being licensed;

(ii) the person applying thereof possesses the skills and

competencies necessary to operate a business of an organized

excursion operator, proven to the satisfaction of the Authority

by means of either a relevant formal qualification from a

recognised training institution or at least two years experience

in the management of a similar business activity

Provided that where the applicant is a body corporate, the

requirements mentioned in the preceding paragraph shall apply

to that person designated to be responsible for the management

of the business activity being licensed;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 96 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In subarticle (1) of article 35 of the principal Act, the Amendment of

words "in the opinion of the Authority satisfies the provisions of article

principal Act.

article 33" shall be deleted and substituted by the words "fulfils the

requirements of article 33".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 97 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 36 of the principal Act shall be amended as Amendment of

article 36 of the

principal Act.

(a)

subarticle (1) shall be deleted and substituted by the

following

"(1) No person shall act, hold himself out as

acting as a tourist guide or use the title of a "tourist guide"

unless he is in possession of a licence in accordance with

this Act and regulations issued under it.";

(b) subarticle (2) shall be deleted and substituted by the

following

"(2) A licence may be granted and renewed for

such periods and as subject to such requirements,

conditions, limitations and exclusions as the Authority

may consider necessary, appropriate and proportionate in

accordance with this Act and regulations issued under it.";

and

(c)

subarticle (4) shall be deleted.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 98 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 37 of the principal Act shall be deleted and Amendment of

article 37 of the

substituted by the following:-

principal Act.

"37. A licence shall not be granted for the purposes of

article 36 unless

(a) the person applying thereof is of good character and

is fit and proper to act as a tourist guide; and

(b) the person applying thereof possesses the relevant

qualification/s to act as tourist guide; or

(c)

demonstrates that he has the practical and theoretical

competencies and experience deemed and recognized to be

equivalent to (b) above by the Authority in terms of this Act and

regulations issued under it.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 99 Amendment of article 47 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Subarticle (1)(b) of article 47 of the principal Act shall be

deleted and substituted by the following

"(b) require that any category or class of persons

working, whether employed or self-employed, in any tourism

operation shall be in possession of such licences or shall be in

possession of such certificates of competence or qualifications

as may be prescribed;".

PART XIX

AMENDMENTS TO THE MALTA RESOURCES AUTHORITY

ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 100 Amendments to the Malta Resources Authority Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Malta Resources Authority

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

Resources Authority Act, hereinafter referred to in this Part as "the

principal Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 101 Amendment of article 2 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 2 of the principal Act shall be amended as follows

(a) in the definition "authorisation", for the words "or

service however so described relating to resources", there shall

be substituted the words "relating to resources and in relation to

services and service providers means a permit, licence, warrant,

appointment, concession or decision concerning access to a

service activity or the exercise thereof relating to resources";

(b) immediately after the definition "authorisation",

there shall be inserted the following new definition

" "authorisation scheme" means any authorisation

or other procedure of an administrative nature, under

which a provider or recipient is in effect required to take

steps in order to commence the activity in question and

obtain from a competent authority authorisation

concerning access to a service activity or the exercise

thereof;";

(c)

immediately after the definition "energy", there shall

be inserted the following new definition

" "establishment" means the actual pursuit of an

economic activity as referred to in Article 43 of the Treaty,

by a service provider for an indefinite period and through a

stable infrastructure from where the business of providing

services is actually carried out;";

(d) immediately after the definition "gas", there shall be

inserted the following new definition

" "Internal Market Information System” means the

information system through which competent authorities

exchange information in fulfillment of their obligations

under Chapter VI of Directive 2006/123/EC of the

European Parliament and of the Council of 12 December

2006 on services in the internal market;";

(e)

immediately after the new definition "Internal

Market Information System", there shall be inserted the

following new definition

" "Member State” means a member state of the

European Economic Area;";

(f)

immediately after the new definition "Member

State", there shall be inserted the following new definition

" "Member State of establishment" means the

Member State in whose territory the provider of the service

concerned is established;";

(g) immediately after the new definition "Member State

of establishment", there shall be inserted the following new

definition

" "Member State where the service is provided"

means the Member State where the service is supplied by a

provider established in another Member State;";

(h) immediately after the definition "Minister", there

shall be inserted the following new definition

" "overriding reasons relating to the public interest"

means the reasons recognised as such in the case law of the

European Court of Justice in relation to Articles 43 and 49

of the Treaty, as they may continue to evolve and including

the following grounds

(a)

public policy, public security, public

safety and public health; provided that these grounds

shall be interpreted within the meaning of Article 46

and Article 55 of the Treaty;

(b)

the maintenance of order in society;

(c)

social policy objectives;

(d)

the protection

of the recipients of

services;

(e)

consumer protection;

(f)

the prevention of fraud;

(g)

the prevention of unfair competition;

(h)

the protection of the environment;";

(i)

immediately after the definition "public officer",

there shall be inserted the following new definition

" "recipient" means any natural person who is a

national of a Member State or who benefits from rights

conferred upon him by Community acts, or any legal

person as referred to in Article 48 of the Treaty and

established in a Member State, who, for professional or

non-professional purposes, uses, or wishes to use, a

service;";

(j)

immediately after the definition "resources", there

shall be inserted the following new definition

" "service” means any self-employed activity

performed for an economic consideration as referred to in

Article 50 of the Treaty;";

(k) immediately after the new definition "service", there

shall be inserted the following new definition

" "services of a general economic interest"

means those services declared by the Minister

responsible for Competition as services of general

economic interest in terms of article 30(3) of the

Competition Act;".

(l)

immediately after the new definition "services of a

general economic interest", there shall be inserted the following

new definition

" "service provider" means any natural person who

is a national of a Member State, or any legal person as

referred to in Article 48 of the Treaty and established in a

Member State, who offers or provides a service;"; and

(m) immediately after the definition "transmission",

there shall be inserted the following new definition

" "Treaty" means the Treaty establishing the

European Community;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 102 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 38 of the principal Act, there Addition of new

article 39 to the

shall be inserted the following new article

principle Act.

" Service

39. (1) In regulating access to service

providers.

activities falling under this Act and, or the

exercise thereof, the Authority shall, where

such service activities fall within the scope of

the Services (Internal Market) Act, 2009

(a)

act objectively, transparently,

efficiently and in a timely manner;

(b) provide

information

and

assistance to service providers and

recipients subject to the provisions of this

Act;

(c)

make it possible to complete

all procedures and formalities relating to

access to a service activity and to the

exercise thereof, available electronically

through the designated point of single

contact

Provided that the requirement to

make it possible to complete all procedures and

formalities electronically through the point of

single contact shall not apply to the inspection

of premises from which the service is provided

or of equipment used by the service provider.

(2) When a service provider is already

established in another Member State, and seeks

access to a service activity or the exercise

thereof in Malta

(a) where the service activity is

subject to an authorisation scheme or the

fulfillment

of

other

requirements

regulating establishment in Malta, the

Authority

shall

not

duplicate

requirements or controls which are

equivalent or essentially comparable as

regards their purpose which a service

provider may already be subject to in

another Member State where he is already

established;

(b) where the Authority requires a

service provider to supply a certificate,

attestation or document proving that a

requirement has been satisfied in terms of

this Act or regulations made thereunder

(i) it shall accept any

document from another Member

State which serves an equivalent

purpose or from which it is clear that

the requirement in question has been

satisfied;

(ii) it may not require a

document from another Member

State to be produced in its original

form or as a certified copy or

certified translation save in the cases

provided for in a Community

instrument or where such a

requirement is justified by an

overriding reason relating to the

public interest, including public

order and public security

Provided that the provisions

of this paragraph shall not affect the right

of the Authority from requesting a non-

certified translation of documentation in

the Maltese or in the English language.

(3) Where the number of authorisations

available for a service activity is limited

because of the scarcity of available natural

resources, technical capacity or if justified by

an overriding reason relating to public interest,

the Authority shall apply a selection procedure

to potential candidates in order to ensure

impartiality, transparency, conditions of open

competition, including in particular, adequate

publicity about the launch, conduct and

completion of the procedure. In establishing the

rules for the selection procedure, the Authority

may give consideration to issues relating to

public health, social policy objectives, the

health and safety of employees or self-

employed persons, the protection of the

environment, and other overriding reasons

relating to the public interest, in conformity

with Community law.

(4) An authorisation granted to a service

provider shall be for an indefinite period,

except where

(a)

the authorisation is being

automatically renewed or is subject only

to

the

continued

fulfilment

of

requirements;

(b) the number of available

authorisations is limited in terms of sub-

article (3);

(c)

a limited authorisation period

can be justified by an overriding reason

relating to the public interest

Provided that in cases referred to in

paragraph (b), an authorisation shall be granted

for an appropriate limited period enabling the

service provider to recover the cost of

investment and to make a fair return on the

capital invested, which authorisation may not

have an excessive duration, be open to

automatic renewal nor confer any other

advantage on the service provider whose

authorisation has just expired or on any person

having any particular links with that provider.

(5) An authorisation granted by the

Authority shall enable the service provider to

have access to the service activity or the

exercise thereof throughout Malta including by

means of the setting up of agencies,

subsidiaries, branches or offices, except where

the authorisation for each individual

establishment or a limitation of authorisation to

a certain part of the territory is justified by an

overriding reason relating to public interest

Provided that the service provider

shall be required to inform the Authority of the

creation of subsidiaries, branches, offices or

agencies whose activities fall within the scope

of the authorisation scheme.

(6) In the fulfillment of its authorisation

function in terms of this article, the Authority

shall

(a) acknowledge all applications

requesting authorisation;

(b) in case of an incomplete

application, inform the applicant as

quickly as possible of the need to supply

any additional information, together with

the consequences which ensue should the

applicant delay in providing the said

information or requirements;

(c)

process an application for an

authorisation as quickly as possible and in

any event within a time period which

shall be fixed and made public in advance

failing which it shall be deemed that the

authorisation has been granted. The

period will start to run from the day when

all due information has been submitted

and any other requirements and

formalities have been completed in order

for the Authority to process the

application

Provided that the time period

may be extended once for a limited time

when justified by the complexity of the

issue. The extension and its duration shall

be duly justified and given to the

applicant before the original period has

expired

Provided further that the

Authority

may

make

different

arrangements where objectively justified

by overriding reasons relating to the

public interest including a legitimate

interest of third parties;

(d) provide information regarding

the means of redress available in case of

non-acceptance of an application;

(e) grant an authorisation as soon

as the applicant fulfills all requirements,

without prejudice to the right of the

Authority to revoke or modify an

authorisation when the conditions for

authorisation are no longer met by the

service provider;

(f)

in the case of rejected

applications due to failure to comply with

the required procedures or formalities,

inform the applicant of the rejection as

soon as possible;

(g) except in the case of the

granting of an authorisation, a decision

from the Authority, including refusal or

withdrawal, shall be fully reasoned and

shall be open to challenge before the

Appeals Board.

(7) With the exclusion of service

activities and matters which are declared to be

services of a general economic interest, which

inter alia may include -

(a)

in the electricity sector,

services covered by Directive 2003/54/

EC of the European Parliament and of the

Council of 26 June 2003 concerning

common rules for the internal market in

electricity;

(b) in the gas sector, services

covered by Directive 2003/55/EC of the

European Parliament and of the Council

of 26 June 2003 concerning common

rules for the internal market in natural

gas;

(c)

water distribution and supply

services and waste water services,

the Authority shall respect the right of service

providers that are lawfully established and

providing services in another Member State to

provide services in Malta, and may not prevent

them from providing such service activities by

imposing

requirements

which

are

discriminatory,

unnecessary

or

disproportionate

Provided that the Authority may

impose requirements with regard to the

provision of a particular service activity, where

these are justified for reasons relating to public

policy, public security, public health or the

protection of the environment

Provided also that in establishing

whether a service provider is exercising his

freedom to provide services within the meaning

of this article and Article 49 of the Treaty, or is

an establishment case, or whether a service

provider is abusively taking advantage of the

freedom to provide services, the Authority shall

assess and decide each case on its individual

merits and in conformity with Community

legislation and rulings of the European Court of

Justice.

(8) Without prejudice to sub-article (7),

in exceptional cases only, the Authority may, in

respect of a service provider established in

another Member State, take measures in order

to ensure the safety of services provided in

Malta. When taking such measures, the

Authority shall follow the procedure

established under the Fourth Schedule to the

Services (Internal Market) Act, 2009, and

ensure the fulfillment of the following

conditions

(a)

the national provisions, in

accordance with which the measures are

taken, have not been subject to

Community harmonisation in the field of

the safety of services;

(b) the measures taken provide

for a higher level of protection of the

recipient than would be the case in a

measure taken by the Member State of

establishment in accordance with its

national provisions;

(c)

the

Member

State

of

establishment has not taken any measures

or has taken measures which are

insufficient as compared with those

requested by the Authority and as referred

to in paragraphs 2 and 3 to the Fourth

Schedule to the Services (Internal

Market) Act, 2009;

(d) the measures are proportionate

Provided that the Authority, upon

gaining actual knowledge of any conduct or

specific acts by a service provider established

in Malta and which provides services in other

Member States, which, to its knowledge, could

cause serious damage to the health or safety of

persons or to the environment, shall inform all

other Member States and the European

Commission within the shortest possible period

of time through the Internal Market

Information System.

(9) (a)

The Authority shall require

service providers established in Malta and

falling under its area of competence to keep it

updated at all times with the information it

identifies as necessary and objectively justified

for it to fulfill its supervisory function of

services in terms of this Act and the Services

(Internal Market) Act, 2009.

(b) The Authority shall exercise its

supervisory functions on service providers

established in Malta, and falling under its area

of competence, whether the service is provided

in Malta or in another Member State.

(c) In

executing

its

supervisory

functions, when a service is being provided in

another Member State by a service provider

established in Malta, the Authority shall assist

the relevant competent authority of that other

Member State in terms of the procedure

established in the Second Schedule of the

Services (Internal Market) Act, 2009. In doing

so, the Authority shall not refrain from taking

supervisory enforcement measures in Malta on

the grounds that a service has been provided or

caused damage in another Member State

Provided that the Authority shall not

be bound to carry out checks and controls in the

Member State where the service is being

provided.

(d) When a service is being provided in

Malta, in the event of a temporary movement

by a service provider established in another

Member

(i)

the Authority shall participate

in the supervision of the service provider

in accordance with the procedure set up in

the Second Schedule to the Services

(Internal Market) Act, 2009;

(ii) when the Authority has

imposed requirements in terms of the first

proviso to sub-article (7), it shall assume

responsibility for the supervision of that

service provider in Malta in order to

ensure

compliance

with

those

requirements.

(e) The Authority shall exchange

requests and information with the relevant

competent authorities of another Member State

through the Internal Market Information

System.

(f) Without prejudice to the limitations

imposed by any other law, the Authority shall

supply information to the relevant competent

authority of another Member State on

disciplinary or administrative actions, or

criminal sanctions and decisions concerning

insolvency or bankruptcy involving fraud,

which directly concern a provider, and which

are directly relevant to the provider’s

competence or professional reliability, in terms

of the procedure contemplated under the Third

Schedule of the (Internal Market) Act, 2009.".

PART XX

AMENDMENTS TO THE VETERINARY SERVICES ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 103 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Veterinary Services Act, and it Amendments to

shall be read and construed as one with the Veterinary Services Act, the

Veterinary

Services Act.

hereinafter in this Part referred to as "the principal Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 104 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 43 of the principal Act shall be amended as Amendment of

article 43 to the

follows

principal Act.

(a)

subarticle (3) thereof shall be amended as follows

(i) in paragraph (b) thereof, immediately

after the words "the Council," there shall be added

the words "after consultation with the Malta

Qualifications Council and in terms of the Mutual

Recognition of Qualifications Act and legislation

made thereunder,", and for the words ", if any" there

shall be substituted the words "or in a Member

State";

(ii) in paragraph (g) thereof, immediately after

the words "citizen of Malta" there shall be added the words

"or of a Member State";

(b) immediately after subarticle (3) there shall be added

the following new subarticles

"(4) (a)

The Council shall acknowledge

receipt of an application for a warrant as soon as

possible and in any case by not later than one

month of receipt of all relevant documentation

submitted in fulfilment of the requirements listed

in the last preceding sub-article. The

acknowledgment shall include the time by which

the Council expects to reach a decision in terms

of this sub-article and the available means of

redress from decisions of the Council

Provided that in the case of

incomplete documentation, the Council shall

inform the applicant accordingly

Provided further that where the

applicant is already established in another

Member State and, or has obtained his

qualifications in another Member State and, or is

a citizen of another Member State, the Council

may seek to verify any of the documentation

submitted by the applicant with the relevant

competent authority of that Member State in

terms of the Services (Internal Market) Act,

2009. (b) The Council shall examine all

documentation submitted by the applicant as

early as possible and lead to a duly substantiated

decision within three months. Such period shall

commence to run from the date of receipt of all

necessary documentation. Where duly motivated,

this period may be extended by one month by the

Council, provided that the applicant is notified

before the original period set in paragraph (a) has

expired.

(c) Lack of response within the timescales

set in accordance with this sub-article shall not

be deemed to imply the tacit approval of the

applicant’s application.

(5) Without prejudice to sub-articles (2)

and (3), and in terms of the Mutual Recognition

L.N. 422 of 2007 of Qualifications Act, and the Recognition of

Professional Qualifications Regulations, 2007, a

person may provide veterinary services in Malta,

on a temporary and occasional basis, provided

that

(a)

he is legally established in

another Member State for the purpose of

pursuing the profession of a veterinary

surgeon in that Member State; and

(b) he has pursued the profession of

a veterinary surgeon for at least two years

during the preceding ten years.

(6) (a)

Persons referred to in sub-

article (5) shall inform the Council in advance of

their intention to provide veterinary services in

Malta by means of a written declaration. Such

written declaration shall include

(i)

proof of nationality;

(ii) an attestation certifying that the

person is legally established in another

Member State for the purpose of pursuing

the profession of a veterinary surgeon in

that Member State;

(iii) evidence of his professional

qualifications and of his practice during the

preceding ten years;

(iv) details of his current insurance

cover or of any other means of collective

protection with regard to professional

liability, as it may be applicable;

(v) description of the services

intended to be provided and the location

from where such services are intended to be

provided.

(b) (i)

The

Council

shall,

immediately upon receipt of a declaration

in terms of the preceding paragraph, send

an acknowledgement to the applicant and

inform him of any missing documentation.

(ii) The Council shall, within a

maximum of one month from the date of an

acknowledged receipt of a completed

declaration

and

all

necessary

accompanying documents, inform the

applicant of the outcome of the checks of

the

submitted

qualifications

and

documents.

(iii) In case of difficulty resulting in

delay, the Council shall inform the

applicant making the declaration, within

the first month, of the reason for the delay

and the timescale within which the

Council’s decision shall be finalised

Provided that the extended

timescale shall not be of more than one

month.

(iv) In the absence of a reaction

from the Council within the deadlines set in

this sub-article the service may be

provided.

(c) In making its decision in terms of this

and the preceding subarticle, the Council shall

assess and determine each application based on

its individual merits.

(7) (a)

The

Veterinary

Surgeons’

Council shall keep a list within the Veterinary

Surgeons’ Register of persons approved for the

provision of veterinary services on a temporary

or occasional basis under this article.

(b) This registration shall be valid for one

year and shall be renewed, in advance, for every

year in which the applicant intends to provide

temporary or occasional services in Malta during

that year

Provided that, for reasons of public

and animal health, the person shall be required to

inform the Council each time he intends to

provide veterinary services on a temporary or

occasional basis in Malta, fifteen days in advance

and shall provide the Council with the

information in terms of subarticle (6)(a)(v)."; and

(c) subarticle (5) shall be renumbered as sub-article (8)

thereof and shall be amended as follows

(i) in paragraph (a) thereof, the words "by the

President of Malta" shall be deleted; and

(ii) in paragraph (b) thereof, immediately after

the words "the Council" there shall be added the words

"after consultation with the Malta Qualifications Council".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 105 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In article 45A of the principal Act, immediately after the Amendment of

words "Mutual Recognition of Qualifications Act" there shall be article

the principal

Act.

added the words "and the Services (Internal Market) Act, 2009,".

PART XXI

AMENDMENTS TO THE TRADING LICENCES ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 106 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Trading Licences Act, and it Amendments to

shall be read and construed as one with the Trading Licences Act, the

Licences Act.

hereinafter referred to in this Part as "the principal Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 107 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

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

article 2 of the

principal Act.

(a)

for the definition "commercial fair" there shall be

substituted the following

" "commercial fair" means an event in one location

in which more than one participant display or promote

their goods or services from different sites of such location

with a view to sell such goods or services from such

location or from elsewhere;";

(b) immediately after the definition "commercial fair"

there shall be inserted the following new definition

" "commercial exhibition" means an event in one

location in which one participant displays or promotes his

goods or services with a view to sell such goods or services

from such location or from elsewhere

Provided that such event shall not comprise the

display or promotion of goods or services for wholesale or

retail from a premises licensed for such purposes;";

(c)

immediately after the definition "commercial

premises" there shall be inserted the following new definition

" "exhibition" means an event in one location in

which one or more participants display or promote their

goods or services without the intention to sell such goods

or services from such location or from elsewhere;"; and

(d) immediately after the definition "street" there shall

be added the following new definition

" "the Treaty" means the Treaty establishing the

European Community.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 108 Deletion of articles 5 to 7 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Articles 5, 6 and 7 of the principal Act shall be deleted.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 109 Renumbering and amendment of article 8 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 8 of the principal Act shall be renumbered as

article 5, and in subarticle (5) thereof, for the words "to the Board."

there shall be substituted the words "to the Board:", and immediately

thereafter there shall be added the following proviso

"Provided that the Minister may appoint a substitute

secretary in the following cases

(a) in cases of urgency if the designated secretary

is in any way not available to perform his duties; and

(b) in cases where the designate secretary

abstains himself for the same reasons that a member of the

board may abstain himself as mentioned above.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 110 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Articles 9, 10, 11 and 12 of the principal Act shall be Renumbering of

articles 9 to 12

renumbered as Articles 6, 7, 8 and 9 respectively.

of the principal

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 111 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after article 9 of the principal Act, as Addition of new

article 10 to the

renumbered, there shall be added the following new article

principal Act.

" Activities

10. (1) No commercial activity shall be

requiring licence

carried out in Malta without a licence from the

and permits.

regulatory authority

Provided that any commercial

activity, as may be prescribed, may

(a)

be deemed to be licensed

following a notification made to the

regulatory

authority

prior

to

commencement of the commercial

activity by the person who undertakes to

carry out the intended activity;

(b) be deemed to be licensed

following a notification made to the

regulatory authority, within a prescribed

time, after commencement of the

commercial activity

Provided further that all persons

carrying out any commercial activity shall still

be required to comply with the relevant

provisions of this Act and of any regulations

subsidiary to it, irrespective of the type whether

the commercial activity is licensed as a result

of an application to the regulatory authority or

is deemed to be licensed following a

notification to the regulatory authority.

(2) Certain

activities

as

may

be

prescribed may

(a) be designated as not requiring

a licence but requiring other relevant

permits from the local authority and, or

the Commissioner of Police or be subject

to conditions issued by the local

authorities and, or the Commissioner of

Police;

(b) be designated as requiring

other relevant permits, in addition to a

licence from the regulatory authority,

including

(i) a permit from the local

authority; and

(ii) a permit from

the

Commissioner of Police

Provided that a person who holds on

any special or special day or days

(a)

any procession or other

activity held in a public place held in the

context of a feast, any band march, any

disco, ball, dance or any other similar

activity, irrespective of the name by

which it is called; or

(b) a sporting activity which is

held across more than one locality or on a

national basis; or

(c)

any activity organised by a

political party

shall only require a permit from the

Commissioner of Police issued under this Act.

(3) The issuing of a licence by a

regulatory authority or a permit by the local

authority or Commissioner of Police may be

subject to

(a) the submission and evaluation

of documents and other prescribed

information as may be deemed necessary

in order to ensure fulfillment of licence

requirements;

(b) authorizations,

permits,

approvals and clearances from other

entities as may be prescribed and

applicable by other relevant legislation

current at the time;

(c)

compliance with terms and

conditions as may be prescribed,

including the possession of relevant

qualifications in line with the Mutual

Recognition of Qualifications Act and of

any regulations made thereunder

Provided that the regulatory

authority may require the applicant to prove his

competence to carry on the relevant

commercial activity by means of other

qualifications for reasons of overriding public

interests, in terms of Directive 2006/123 of the

European Parliament and of the Council of 12

December, 2006 on services in the internal

market

Provided further that where a person

is legally established to carry on in another

Member State a commercial activity falling

under the implementing provisions of Directive

2006/123 of the European Parliament and of

the Council of 12 December, 2006 on services

in the internal market and is seeking a licence

in Malta, the regulatory authority, in

compliance with same Directive, shall not

duplicate requirements or controls which are

equivalent or essentially comparable as regards

their purpose to which such person may already

be subject to in another Member State.

(4) Notwithstanding any licence, permit

or authorisation issued, the Commissioner of

Police may

(a)

where any affray or tumult

happens or is expected to happen in any

place, order every commercial premises

in or near the place where the affray or

tumult happens or is expected to happen,

to be kept closed during such time as, in

the opinion of the Commissioner of

Police, is reasonably necessary;

(b) for reasons of public order,

public safety or public morality, stop any

activity in respect of which any permit or

licence or authorization was issued or

should have been issued under this Act.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 112 Addition of new article 11 to the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after the new article 10 of the principal Act,

there shall be added the following new article

" Commercial

11. Where a person is already licensed

activity on a non-

or otherwise legally established to carry on a

permanent and

commercial activity in another Member State,

occasional basis.

and that person wishes to carry out such

commercial activity in Malta on a non-

permanent and occasional basis, the regulatory

authority shall not prevent that person from

doing so by imposing any requirements which

are

discriminatory,

unnecessary

or

disproportionate

Provided that the regulatory

authority may impose such requirements with

regard to the provision of a particular service

activity, where these are justified for reasons

relating to public policy, public security, public

health or the protection of the environment

Provided also that in establishing

whether a service provider is exercising his

freedom to provide services within the meaning

of article 16 of the Services (Internal Market)

Act, 2009 and Article 49 of the Treaty, or is an

establishment case, or whether a service

provider is abusively taking advantage of the

freedom to provide services, the competent

authority shall assess and decide each case on

its individual merits and in conformity with

Community law and rulings of the European

Court of Justice.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 113 Deletion of articles 13 to 18 and Parts III to V of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Part III and articles 13, 14, 15 and 16, Part IV and article

17 and Part V and article 18 of the principal Act shall be deleted.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 114 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Part VI of the principal Act shall be renumbered as Part III Renumbering of

Part VI and

thereof, and articles 19 to 22 of the principal Act shall be deleted.

deletion of

articles 19 to 22

of the principal

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 115 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 23 of the principal Act shall be renumbered as Renumbering of

article 23 of the

article 12 thereof.

principal Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 116 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Articles 24 and 25 of the principal Act shall be deleted.

Deletion of

article 24 and 25

of the principal

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 117 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after the new article 12 of the principal Act Addition of new

article 13 to the

as renumbered, there shall be added the following new article

principal Act.

" Selling from

13. When an open air market has been

open-air markets.

established in a locality, no person shall be

allowed to carry on any commercial activity

from a fixed place in such a market unless he

complies with such conditions as may be

prescribed.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 118 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Immediately after the new article 13 of the principal Act Addition of new

article 14 to the

as renumbered, there shall be added the following new article

principal Act.

" Vending

14. No person shall place any vending

machines, etc.

machine or any machine known as kiddie ride

machine in any street without the necessary

authorisation as may be prescribed.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 119 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Articles 26 and 27 of the principal Act shall be Renumbering of

articles 26 and

renumbered as articles 15 and 16 thereof.

27 of the

principal Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 120 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

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

Part VII of the

IV thereof.

principal Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 121 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 28 of the principal Act shall be renumbered as Renumbering

article 17 thereof and for paragraph (f) thereof, there shall be and

amendment

of article 28 of

substituted the following new paragraph

the principal

Act.

"(f) for establishing the penalties or administrative

sanctions to which any offender against the provisions of this

Act and regulations made thereunder shall be liable;".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 122 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 29 of the principal Act shall be renumbered as Renumbering of

article 29 of the

article 18 thereof.

principal Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 123 Renumbering and amendment of article 30 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 30 of the principal Act shall be renumbered as

article 19 thereof and amended as follows

(a) in subarticle (1) thereof, for the words "as may be

prescribed in respect of that offence" there shall be substituted

the words "and, or administrative sanctions as may be

prescribed in respect of that offence";

(b) for subarticle (2) thereof there shall be substituted

the following

"(2) The Minister shall prescribe the penalties and

administrative sanctions that may be demanded by the

regulatory authority in relation to any specified offence.";

and

(c) in subarticle (3) thereof, after the word "penalty"

there shall be added the words "and, or administrative

sanctions".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 124 Renumbering of articles 31 to 33 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Articles 31, 32 and 33 of the principal Act shall be

renumbered as articles 20, 21 and 22 thereof.

PART XXII

AMENDMENTS TO THE CULTURAL HERITAGE ACT

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 125 Amendments to the Cultural Heritage Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

(1) This Part amends the Cultural Heritage Act and it

shall be read and construed as one with the Cultural Heritage Act,

hereinafter in this Part referred to as "the principal Act".

(2) This Part shall come into force upon publication of this

Act.

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 126 Amendment of article 33 of the principal Act. — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

In sub-article (1) of article 33 of the principal Act, for the

words "the requirements of articles 31 or 32." there shall be

substituted the words "the requirements of articles 31 or 32:" and

immediately thereafter there shall be inserted the following proviso

"Provided that the decision of the Minister to grant

or to refuse an application shall be notified in writing to the

applicant within four months from the date of receipt of the

application. Failure to notify the applicant about the decision

regarding an application for a warrant within the time

established shall be deemed, for reasons of public interest, to be

a refusal of the warrant applied for. Where no decision has been

notified to the applicant within the time established, such

applicant may appeal before the Court of Appeal constituted as

provided in article 41(6) of the Code of Organization and Civil

Procedure

Provided further that an application for a warrant

shall not be deemed to have been filed by an applicant unless it

is duly filled in and accompanied with all required information

and documentation.".

Malta Government Gazette — Act 2009 23 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
Art. 127 — ACT No. XXIII of 2009 AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC. Open official source

Article 33A of the principal Act shall be substituted by the Substitution of

article 33A of

following new article

the principal

Act.

" Temporary

33A. (1) Without prejudice to the Mutual

provision of

Recognition of Qualifications Act and

services.

notwithstanding the provisions of article 31 of

this Act, any person established in another

Member State may practise the profession of a

restorer in Malta on a temporary and occasional

basis provided that such person

(a) is legally established in another

Member State for the purpose of pursuing

the restorer’s profession in that Member

State; and

(b) has pursued the restorer’s

profession for at least two years during the

ten years immediately preceding the

provision of services where the restorer’s

profession is not regulated in that Member

State.

(2) Persons referred to in subarticle (1)

shall inform the Board by means of a written

declaration to be made in advance, which

declaration shall include the following

(a) the details of an insurance cover

or other means of personal or collective

protection relative to professional liability.

This declaration shall be made once a year if

the service provider intends to provide

temporary or occasional services during the

year;

(b)

proof of the nationality of the

service provider;

(c) an attestation certifying that the

warrant holder is legally established in a

Member State for the purpose of pursuing

the activities concerned and that he is not

prohibited from practising the profession of

a restorer even temporarily, at the moment

of delivering the attestations;

(d) evidence

of

professional

qualifications; and

(e)

where applicable, any means of

proof that the service provider has pursued

the restorer’s profession for at least two

years during the previous ten years

immediately preceding the provision of

services.

(3) Where the Board, in exercising its

authority under this article, deems that there is a

substantial difference between the professional

qualifications of the service provider and the

academic qualifications required under article 31,

to the extent that the difference is such as to be

harmful to public health, safety and security, the

Board shall give the service provider the

opportunity to show, in particular by means of an

aptitude test, that he has acquired the knowledge

or competence which he lacks.

(4) The Board shall assess the temporary

and occasional nature of the provision of the

services on a case by case basis.

(5) The Board shall, within one month

from the date of receipt of the declaration referred

to in subarticle (2), inform the service provider

either of its decision not to check his

qualifications or of the outcome of such check.

Whenever a decision cannot be given during the

established time, the Board shall notify this

information to the service provider within the

period established in this subarticle. The Board

may extend this period only once for another

period of one month.

(6) In the event that the Board does not

give its decision within the period referred to in

subarticle (5), the restoration services may be

provided.

(7) A person exercising the profession

under this article shall be deemed to be a warrant

holder and the provisions of this Act and of any

other applicable law shall apply to him in the

same manner and to the same extent as with any

other warrant holder.".

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