ACT No. XVI of 2011 AN ACT to regulate Retirement Schemes, Retirement Funds and Service Providers related thereto.

I assent.

G EORGE A BELA

(L.S.)

President

5th August, 2011

ACT No. XVI of 2011

AN ACT to regulate Retirement Schemes, Retirement Funds and

Service Providers related thereto.

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

(1)

The short title of this Act is the Retirement Pensions

Act, 2011.

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

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

Gazette establish, and different dates may be so established for

different provisions or different purposes of this Act.

(Article 6)

LICENSABLE ACTIVITIES

1. Retirement Scheme Administration

-

administering the operation of a retirement scheme.

2. Custodian or Trustee Services

-

acting as custodian or trustee of a retirement scheme

-

acting as custodian or trustee of a retirement fund.

3. Investment Management

-

management of the assets of a retirement scheme

-

management of the assets of a retirement fund.

For the purposes of this paragraph, investment management

means managing or agreeing to manage assets belonging to a

retirement scheme or retirement fund on behalf of a retirement

scheme or retirement fund if those assets consist of or include one or

more instruments or the arrangements for their management are such

that the person may manage those assets to invest in one or more

instruments.

Reference in this Schedule to a retirement scheme or to a

retirement fund shall also include reference to a similar or equivalent

arrangement established overseas within the meaning of article 6.

Passed by the House of Representatives at Sitting No. 386 of the

25th July, 2011.

M ICHAEL F RENDO

Speaker

P AULINE A BELA

Clerk to the House of Representatives

(1)

In this Act, unless the context otherwise requires -

"advertisement" means any form or medium of advertising or

promotional activity, other than a scheme document, scheme

particulars or retirement fund particulars and, without prejudice to the

generality of the foregoing, includes advertising in a publication, the

display of notices, signs, labels or show cards, by means of letters,

circulars, catalogues, price lists or other documents, by the exhibition

of pictures or photographic or cinematographic films, by way of

sound, television or other broadcast, by the distribution of recordings

or in any other manner, the contents of which either invite persons, or

contain material calculated to induce persons to become or offer to

become members in a retirement scheme or investors in a retirement

fund; and references to the issue of an advertisement shall be

construed accordingly;

"beneficiary" means an individual receiving retirement benefits

in accordance with the provisions of a scheme document;

"competent authority" means the Malta Financial Services

Authority established by article 3 of the Malta Financial Services Cap. 330.

Authority Act, which body shall act as the competent authority for the

purposes of this Act and also for relevant purposes of the

Occupational Pensions Directive;

"contributor" means -

(a)

the individual who contributes solely or partly to the

retirement scheme; and, or

(b) the employer who contributes solely or partly to the

retirement scheme,

for the benefit of members of the retirement scheme;

"defined benefit retirement scheme" means a retirement scheme,

other than a defined contribution retirement scheme, which has as its

primary purpose that of providing for the payment of fixed or

determinable retirement benefits;

"defined contribution retirement scheme" means a retirement

scheme which has as its primary purpose that of providing for the

payment of retirement benefits which are established by reference to

the contributions paid into such retirement scheme, the accumulation

of profits, gains and other income, after the deduction of expenses

and losses in relation thereto;

"directive" means a directive issued under article 41;

"document" or "documentation" includes information recorded

in any form and, in relation to information recorded otherwise than in

legible form, references to its production include references to

producing a copy of the information in legible form;

"EEA 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;

"EIOPA" means the European Insurance and Occupational

Pensions Authority established in terms of article 1 of Regulation

(EU) No 1094/2010 of the European Parliament and of the Council of

24 November, 2010;

"instrument" shall have the same meaning as assigned to it in

the Investment Services Act;

"investor" means the retirement scheme and, or overseas

retirement scheme investing in a retirement fund;

"licence" means a retirement scheme licence or a retirement

fund licence or a licence of a service provider providing any one or

more of the services listed in the Schedule, and "licensing" and

"licensed" shall be construed accordingly;

"licence holder" means a person or body corporate or

unincorporated body holding a licence under this Act;

"Malta’s international

commitments"

means

Malta’s

commitments, responsibilities and obligations arising out of

membership of, or affiliation to, or relationship with, any

international, global or regional organisations or grouping of

countries or out of any treaty, convention or other international

agreement, however called, whether bilateral or multilateral, to which

Malta is a party;

"member" means a person who is entitled or will become

entitled to retirement benefits in accordance with the provisions of a

scheme document;

"Member State" means a Member State of the European

Communities;

"the Minister" means the Minister responsible for finance;

"Occupational Pensions Directive" means Directive 2003/41/EC

of the European Parliament and of the Council of the 3rd June, 2003

on the activities and supervision of institutions for occupational

retirement provision as may be amended from time to time and

includes any implementing measures that may be issued thereunder;

"occupational retirement scheme" means a retirement scheme

established for, or by, an employer or a number of employers or an

association representing employers, jointly or separately, for the

benefit of employees;

"overseas regulatory authority” means an authority in a country

or territory outside Malta which exercises any regulatory or

supervisory function in relation to financial services corresponding to

a function of the competent authority as defined in the Malta Cap. 330.

Financial Services Authority Act;

"overseas retirement scheme" means a scheme or arrangement,

organized under the laws of a country outside Malta with the principal

purpose of providing retirement benefits;

"Pension Rule" means a rule issued by the competent authority

in accordance with article 38(2);

"personal retirement scheme" means a retirement scheme which

is not an occupational retirement scheme and to which contributions

are made for the benefit of an individual;

"prescribed" means prescribed by regulations made under this

Act in accordance with article 37;

"qualifying shareholding" means a direct or indirect holding in a

body corporate which represents ten per cent or more of the share

capital issued by such body, or of the voting rights attaching to such

share capital or which makes it possible to exercise a significant

influence over the management of the body corporate;

"recognition" means a recognition under this Act issued to a

person carrying back-office administrative activities as established by

Pension Rules, in relation to a retirement scheme and, or retirement

fund as applicable, and "recognising" and "recognised" shall be

construed accordingly;

"recognised person" means a holder of a recognition under this

Act;

"retirement benefit" means benefits paid by reference to

reaching, or the expectation of reaching, retirement or, where they are

supplementary to those benefits and provided on an ancillary basis, in

the form of payments on death, disability, or cessation of employment

or in the form of support payments or services in case of sickness,

indigence or death;

"retirement fund" means an arrangement established for the

principal purpose of holding and investing the contributions made to

one or more retirement schemes and, or to one or more overseas

retirement schemes;

"retirement scheme" means a scheme or arrangement as defined

in article 3;

"Retirement Scheme Administrator" means a person licensed to

provide the retirement scheme administration services referred to in

the Schedule;

"schedule of payments" shall be construed in accordance with

article 18;

"scheme document" means the written instrument evidencing or

establishing a retirement scheme and which stipulates the retirement

benefits and the conditions under which these are granted;

"service" means any service falling within the Schedule, when

provided in relation to an instrument; and, or any back-office

administrative activity as established by Pension Rules;

"service provider" means any person licensed under this Act to

provide any one or more of the services listed in the Schedule and, or

recognised to provide any one or more of the back-office

administrative activities established by Pension Rules;

"Solvency II Directive" means Directive 2009/138/EC of the

European Parliament and of the Council of 25 November, 2009 on the

taking-up and pursuit of the business of Insurance and Reinsurance

(Solvency II), as may be amended from time to time, and includes any

implementing measures that may be issued thereunder;

"subsidiary" has the same meaning as that assigned to the term

"subsidiary undertaking" under article 2 of the Companies Act;

"tax" means the tax imposed by the Income Tax Acts;

"the Income Tax Acts" means collectively the Income Tax Act

and the Income Tax Management Act.

(2) In this Act and in the Schedule and in any regulations

prescribed or Pension Rules issued thereunder, if there is any conflict

between the English and the Maltese texts, the English text shall

prevail.

(3) Regulations made under this Act and any amendment or

revocation of such regulations, may be published in the English

language only.

(4) The objective of this Act is, in part, to implement the

provisions of the Occupational Pensions Directive and relative

European Union measures, and it shall be interpreted and applied

accordingly.

PART II

Licensing and Recognition Requirements

Licensing of Retirement Schemes

(1) A retirement scheme means a scheme or Definition of

arrangement with the principal purpose of providing retirement retirement

scheme.

benefits.

(2) A scheme or arrangement shall not constitute a retirement

scheme under this Act if it provides for

(a)

the payment of retirement benefits to five or fewer

members; or

(b) the commencement of payment of retirement benefits to a

member on a date that is earlier than that on which such member has

attained the age of fifty, or not later than that specified in Pension

Rules, except in those cases where the scheme or arrangement

provides that

(i) the payment is made by reason of the

disability or death of a member; or

(ii) the payment, in the case of an occupational

retirement scheme, is made to the member without the

necessity of the member’s consent in line with any Pension

Rules in the event that the member is no longer employed

by the employer.

(3) A retirement scheme may be an occupational retirement

scheme or a personal retirement scheme.

(1) Subject to the provisions of sub-article (6), no Requirement of

retirement scheme shall carry on any activity for the provision of licence

retirement

retirement benefits in or from within Malta, unless such retirement schemes.

scheme is situated in Malta and is duly licensed under this Act.

(2) Subject to the provisions of sub-article (6), no retirement

scheme formed in accordance with or existing under the laws of

Malta shall carry on any activity for the provision of retirement

benefits in or from within a country, territory or other place outside

Malta unless duly licensed under this Act.

(3) Subject to the provisions of sub-article (6), no person shall

accept money or other consideration from a contributor with respect

to a retirement scheme carrying on any activity for the provision of

retirement benefits in or from within Malta unless such retirement

scheme is situated in Malta and is duly licensed under this Act.

(4) The competent authority may by notice in writing to any

person determine that for the purposes of this Act, a scheme or other

arrangement is a retirement scheme -

(a)

situated in Malta, or

(b)

carrying on any activity in or from within Malta,

and subject to any appeal under article 44 with respect to such person,

the determination by the competent authority shall be conclusive for

all purposes of this Act.

(5) For the purposes of sub-article (4), "carrying on any

activity in or from within Malta" includes but shall not be limited to,

marketing, advertising or otherwise promoting, as may be further

stipulated in Pension Rules.

(6) No retirement scheme shall be precluded by the provisions

of sub-articles (1) to (3) from taking such steps as may be necessary

for the incorporation or, as the case may be, the establishment of the

retirement scheme or from taking such steps as may be necessary for

securing the licensing of the retirement scheme by the competent

authority.

(7) A retirement scheme licensed under this Act shall not be

subject to any licensing requirements under the Investment Services

Act.

Licensing of Retirement Funds

(1) Subject to the provisions of sub-article (5), no

retirement fund shall carry on any activity in or from within Malta in

relation to a retirement scheme or an overseas retirement scheme

unless such retirement fund is situated in Malta and is duly licensed

under this Act.

(2) Subject to the provisions of sub-article (5), no retirement

fund formed in accordance with or existing under the laws of Malta

shall carry on any activity in relation to a retirement scheme and, or

overseas retirement scheme, in or from within a country, territory or

other place outside Malta, unless duly licensed under this Act.

(3) The competent authority may by notice in writing to any

person determine that, for the purposes of this Act, a fund is a

retirement fund

(a)

situated in Malta, or

(b)

carrying on any activity in or from within Malta,

and subject to any appeal under article 44 with respect to such person,

the determination by the competent authority shall be conclusive for

all purposes of this Act.

(4) For the purposes of sub-article (3), "carrying on any

activity in or from within Malta" includes but shall not be limited to,

marketing, advertising or otherwise promoting, as may be further

stipulated in Pension Rules.

(5) No retirement fund shall be precluded by the provisions of

sub-articles (1) and (2) from taking such steps as may be necessary

for the incorporation or, as the case may be, the establishment of the

retirement fund or from taking such steps as may be necessary for

securing the licensing of the retirement fund by the competent

authority.

(6) A retirement fund licensed under this Act shall not be

subject to any licensing requirements under the Investment Services Cap. 370.

Act.

Licensing of Service Providers

(1) No person shall provide or hold itself out as Requirement of

providing any one or more of the services listed in the Schedule in or licence

persons

from within Malta to a retirement scheme or retirement fund or to a providing

services listed in

similar or equivalent arrangement established overseas, unless it is the Schedule.

duly licensed under this Act.

(2) No body corporate, unincorporated body or association

formed in accordance with or existing under the laws of Malta, shall

provide or hold itself out as providing a service in or from within a

country, territory or other place outside Malta unless duly licensed

under this Act.

(3) The competent authority may by notice in writing to any

person determine that a service falls within the Schedule when

provided in relation to an instrument and, subject to any appeal under

article 44, with respect to such person, the determination by the

competent authority, shall be conclusive for all purposes of this Act.

Recognition of Service Providers

Any person who, in or from within Malta, provides to

licence holders, or to similar or equivalent persons overseas, any one

or more of the back-office administrative activities as established by

Pension Rules which do not themselves constitute a licensable

activity under this Act, shall be required to apply for recognition by

the competent authority under this article, and no person shall provide

such activities unless he is so recognised.

PART III

Application, Grant, Cancellation, Suspension, of Licences

and Recognitions

An application for a licence or recognition, as the case may

be, shall be made in the form and manner required by the competent

authority and shall -

(a)

contain or be accompanied by such information and

particulars as the competent authority may require or as may be

prescribed;

(b) be verified in the manner and to the extent required

by the competent authority, or as may be prescribed.

(1) The competent authority may grant, or refuse to

grant a licence or recognition, as the case may be, applied for under

this Act.

(2) The competent authority shall not grant a licence or

recognition, as the case may be, applied for under this Act, unless it is

satisfied that -

(a)

in the case of a retirement scheme

(i) it is constituted and structured in line with

any Pension Rules, as applicable;

(ii) the retirement scheme and, or Retirement

Scheme Administrator, as the case may be, will comply

with and observe the provisions of this Act and any

regulations or Pension Rules made thereunder;

(iii) the retirement scheme and Retirement

Scheme Administrator are fit and proper persons to carry

out the functions required of them in connection with the

retirement scheme;

(iv) there is a scheme document which contains

terms and conditions in line with any Pension Rules;

(v) the name of the retirement scheme is one

which, in the opinion of the Authority, is not misleading;

(vi) any aspect of, or related to, the application

does not raise any regulatory concerns;

(b)

in the case of a retirement fund

(i) it is constituted and structured in line with

any Pension Rules, as applicable;

(ii) the retirement fund and any person, by

whatever name designated, responsible for the operation,

administration, and management of the retirement fund,

will comply with and observe the provisions of this Act

and any regulations or Pension Rules made thereunder;

(iii) the retirement fund and any person

responsible for the operation, administration and

management of the retirement fund, is a fit and proper

person to carry out the functions required of it in

connection with the retirement fund;

(iv) it has a constitutional document which

contains terms and conditions in line with any Pension

Rules;

(v) the name of the retirement fund is one which,

in the opinion of the competent authority, is not

misleading;

(vi) any aspect of, or related to, the application

does not raise any regulatory concerns;

(c)

in the case of a service provider

(i) the applicant is a fit and proper person to

provide the services concerned, and

(ii) the applicant will comply with and observe

the provisions of this Act and any regulations or Pension

Rules made thereunder;

(iii) any aspect of, or related to, the application

does not raise any regulatory concerns.

(3) Without prejudice to article 38, a licence or recognition

granted by the competent authority shall be subject to the applicable

Pension Rules and to such conditions as the competent authority may

from time to time deem appropriate.

(4) When considering whether to grant or refuse to grant a

licence and, or recognition as the case may be, the competent

authority shall, in particular, have regard to

(a)

the protection of beneficiaries, members, and

investors;

(b)

the promotion of competition and choice; and

(c)

the reputation and suitability of the applicant and in

the case of the retirement scheme and, or retirement fund, the

persons responsible thereof, and all other parties connected with

the retirement scheme and, or the retirement fund as the case

may be.

(5)

Every licence shall specify, as the case may be

(a)

the nature of the retirement scheme to which the

licence relates;

(b)

any service a person has been licensed to provide.

(6) Every recognition shall specify, as the case may be, the

activities which the person has been recognised to provide.

(7) Without prejudice to the generality of sub-article (3), the

Rules to which the competent authority shall subject a licence and, or

recognition may be made applicable to -

(a)

all licences and, or recognitions granted;

(b)

certain categories of licences;

(c)

all licences granted to certain categories of holders;

(d)

all licences in relation to particular services or

retirement schemes or retirement funds, as the case may be.

(8) Within six months from the date of the submission of a

properly completed application form together with the requisite

documentation, the competent authority shall inform an applicant in

writing of its decision whether or not to grant a licence or recognition;

and in the case of a refusal it shall inform the applicant of the reasons

for the refusal.

(9) Any requirement in this Act that a person be a fit and

proper person to carry out certain activities or functions shall be

interpreted as a requirement not only that such person be a fit and

proper person to carry out such activities or functions, but also that

any qualifying shareholder or director or officer of such person, or

any person responsible for such activities or functions be a fit and

proper person to carry out such activities or functions.

(10) (a) Where close links exist between an applicant and

any other person the competent authority shall

(i)

only grant a licence if it considers that such close

links do not prevent it from exercising effectively its

supervisory functions; and

(ii) refuse to grant a licence if it considers that the laws,

regulations or administrative provisions of any country outside

Malta governing one or more persons with whom the applicant

has close links, or their enforcement, prevent the effective

exercise of its supervisory functions.

(b) The competent authority may from time to time, by

means of a Pension Rule issued under this Act, define the

circumstances in which "close links" are to be regarded as existing

between any two or more persons.

(11) The competent authority shall establish a register of all

holders of a licence and, or recognition. The register, which shall be

publicly available, shall also indicate the services and, or activities in

relation to which each licence and, or recognition was issued. The

register shall be updated on a regular basis. In the case of cross-

border activities carried out in terms of the Occupational Pensions

Directive, the register shall also indicate the Member States or the

EEA States in which the relevant licence holder is operating, and that

information shall be communicated to EIOPA.

(1) Without prejudice to any other provision of this Act

and of any regulations or Pension Rules made thereunder, the

competent authority may at any time cancel or suspend a licence and,

or recognition in accordance with the provisions of this Act.

(2) In the case of a retirement scheme, the competent authority

may cancel or suspend a licence

(a)

if it considers that the retirement scheme or the

Retirement Scheme Administrator, as the case may be, is not a

fit and proper person to carry out the functions required of it in

connection with the retirement scheme; or

(b) if it considers that the retirement scheme or

Retirement Scheme Administrator, as the case may be, does not

comply with the provisions of this Act or of any regulations

made or Pension Rules issued thereunder, or that there has been

a contravention of any such provisions, or an obligation or

condition to which the retirement scheme is subject by virtue of

or under this Act has not been satisfied or complied with; or

(c)

if information has been furnished to the competent

authority by or on behalf of or in relation to the retirement

scheme which is false, inaccurate or misleading, or if the

Retirement Scheme Administrator has concealed, or conceals

from, or fails to notify to the competent authority any document

or information or change therein which it was the Retirement

Scheme Administrator’s duty to reveal or to notify under this

Act and any regulations made thereunder or any Pension Rules;

or

(d) if the retirement scheme or the Retirement Scheme

Administrator, as the case may be, has not commenced to

provide the activities it has been licensed to carry on within the

time provided for in the licence or has ceased to carry on such

activities; or

(e)

if it considers it desirable to cancel or suspend the

licence for the protection of beneficiaries, members, or

investors; or

(f)

at the request of the retirement scheme or

Retirement Scheme Administrator, as the case may be; or

(g) in any of the circumstances under which the

competent authority would have been precluded from issuing

the licence under this Act or where under this Act it would have

been entitled to refuse to grant such a licence.

(3) In the case of a retirement fund, the competent authority

may cancel or suspend a licence

(a)

if it considers that the retirement fund or any person,

by whatever name designated, responsible for the operation,

administration and management of the fund, as the case may be,

is not a fit and proper person to carry out the functions required

of it in connection with the retirement fund;

(b) if it considers that the retirement fund to which the

licence refers and, or any person, by whatever name designated,

responsible for the operation, administration and management

of the retirement fund, as the case may be, does not comply with

the provisions of this Act or of any regulations made or Pension

Rules issued thereunder, or that there has been a contravention

of any such provisions, or an obligation or condition to which

the retirement fund is subject by virtue of or under this Act, has

not been satisfied or complied with; or

(c)

if information has been furnished to the competent

authority by or on behalf of or in relation to the retirement fund

which is false, inaccurate or misleading; or

(d) if the retirement fund or any person, by whatever

name designated, responsible for the operation, administration

and management of the retirement fund, as the case may be, has

not commenced the activities it has been licensed to carry on

within the time provided for in the licence or has ceased to carry

on such activities; or

(e)

if it considers it desirable to cancel or suspend the

licence for the protection of beneficiaries, members or

investors; or

(f)

at the request of the retirement fund or any person

responsible for the operation, administration and management

of the fund as the case may be; or

(g) in any of the circumstances under which the

competent authority would have been precluded from issuing

the licence under this Act or where under this Act it would have

been entitled to refuse to grant such a licence.

(4) In the case of a service provider, the competent authority

may cancel or suspend a licence and, or recognition as the case may

(a)

if it considers that the service provider is not a fit

and proper person to provide any service he is licensed and, or

recognised to provide; or

(b) if it considers that the service provider thereof does

not fulfil the requirements of, or has contravened, any of the

provisions of this Act or of any regulations made or Pension

Rules issued thereunder, or has failed to satisfy or comply with

any obligation or condition to which he is subject by virtue of or

under this Act; or

(c)

if the competent authority has been furnished by or

on behalf of the service provider with information which is

false, inaccurate or misleading; or

(d) if the service provider has not commenced to

provide the service he has been licensed and, or recognised to

provide within the time provided for in the licence and, or

recognition or has ceased to provide such service; or

(e)

if it considers it desirable to cancel or suspend the

licence and, or recognition for the protection of beneficiaries,

members or investors; or

(f)

at the request of the service provider; or

(g) in any of the circumstances under which the

competent authority would have been precluded from issuing

the licence and, or recognition as the case may be, or where

under this Act it would have been entitled to refuse to grant such

a licence and, or recognition; or

(h) if the service provider thereof has obtained the

licence and, or recognition by making false statements or by any

other irregular means.

(1)

Where the competent authority proposes -

(a) to vary any condition to which a licence and, or

recognition is subject or to impose a condition thereon; or

(b) to refuse an application for a licence and, or

recognition or to cancel or to suspend a licence and, or

recognition,

it shall give the applicant or, as the case may be, to the licence holder

and, or recognised person, or in the case of a retirement scheme to the

Retirement Scheme Administrator, or in the case of a retirement fund

to any person, by whatever name designated, responsible for the

operation, administration and management of the retirement fund, as

the case may be, a notice in writing of its intention to do so, such

notice setting out the reasons for its proposed action.

(2) Every notice given under sub-article (1) shall state that the

recipient of the notice may, within such reasonable period after the

service thereof as may be stated in the notice (being a period of not

less than forty-eight hours and not longer than thirty days), make

representations in writing to the competent authority giving reasons

why the proposed decision should not be taken, and the competent

authority shall consider any representation so made before arriving at

a final decision.

(3) The competent authority shall as soon as practicable notify

its final decision in writing to any of the persons to whom notice is to

be given under sub-article (1).

(4) Any decision to prohibit the activities of a licence holder

shall also be notified to EIOPA.

PART IV

Governance

A retirement scheme shall have a Retirement Scheme Requirement for

Administrator, who shall carry out such duties, functions and a Scheme

responsibilities as may be specified and who shall be subject to any Administrator.

requirements, as may be stipulated by Pension Rules.

(1) The Retirement Scheme Administrator shall act in General duty for

the best interests of the retirement scheme and may not use the assets any

responsible for a

of the retirement scheme for its own or other purposes.

retirement

scheme or fund.

(2) Any person, by whatever name designated, responsible for

the operation, administration and management of the retirement fund,

shall act in the best interests of the retirement fund and may not use

the assets of the retirement fund for its own or other purposes.

(1) In the discharge of its duties, functions and Liability.

responsibilities, and without prejudice to the liability for damages

under any other law, the Retirement Scheme Administrator and any

person, by whatever name designated, responsible for the operation,

administration and management of the retirement fund, including any

service provider, shall be liable for any loss or damage suffered as a

result of fraud, wilful default or negligence on its part, including the

unjustifiable failure to perform in whole or in part its obligations

arising under this Act, the terms and conditions of the agreement

appointing it, the deed or other instrument establishing or regulating

the retirement scheme or retirement fund, the conditions of licensing

which may be required by the competent authority, and such other

requirements as may be laid down by the latter from time to time.

(2) The liability of -

(a)

the Retirement Scheme Administrator and any

person, by whatever name designated, responsible for the

operation, administration and management of the retirement

fund; and, or

(b)

the service provider,

shall not be diminished if it has entrusted or delegated to a third party

some or all of its duties, functions and responsibilities.

A Retirement Scheme Administrator, or a retirement fund,

as the case may be, may delegate one or more of its duties to a service

provider or similar entity, subject to any applicable Pension Rules.

(1) Every retirement scheme which is an occupational

retirement scheme, shall appoint an auditor; and every defined benefit

retirement scheme which is an occupational retirement scheme shall

also appoint an actuary.

(2) Every auditor and actuary of a licence holder or recognised

person, as the case may be, shall have the right to demand such

information or explanations as he deems necessary in the

performance of his duties from any officer or employee of, or any

person under an appointment from that licence holder or recognised

person as the case may be.

PART V

Other Requirements and General Provisions

RETIREMENT SCHEMES

(1) The assets of a retirement scheme shall be used for

the exclusive purpose of providing retirement benefits to the members

and beneficiaries of the retirement scheme and of defraying the

expenses as stipulated in the scheme document and as are allowable

in terms of Pension Rules.

(2) A retirement scheme shall comply with such requirements

in terms of Pension Rules, with regards to the investment,

management, accounting and valuation of its assets and the extent to

which it may borrow money.

A Retirement Scheme Administrator of an occupational Schedule of

retirement scheme shall ensure the maintenance and, from time to payments

occupational

time, the revision of a schedule (hereinafter and in article 19 referred retirement

schemes.

to as a "schedule of payments"), showing -

(a)

the rates of contributions payable towards the

retirement scheme by or on behalf of any employer and, or

where applicable, by any other contributors to the retirement

scheme;

(b) the dates on or before which such contributions are

to be paid; and

(c)

such other matters as may be prescribed.

(1) Any amounts payable by or on behalf of the Payment of

contributor to an occupational retirement scheme in accordance with contributions

occupational

the schedule of payments shall be paid on or before the due date.

retirement

schemes.

(2) Any employer of a scheme obliged to contribute solely or

partly to an occupational retirement scheme who fails to effect such

payment on or before the due date specified in the schedule of

payments shall be guilty of an offence.

(3) A Retirement Scheme Administrator and any actuary of an

occupational retirement scheme shall, where any amounts payable by

or on behalf of the employer of the retirement scheme in accordance

with the schedule of payments have not been paid on or before the

due date

(a)

give notice of that fact to the members and the

competent authority at the earliest opportunity; and

(b) take all such measures as may be necessary or

appropriate to make the defaulting employer rectify the

situation.

(4) A Retirement Scheme Administrator of an occupational

retirement scheme shall notify the competent authority in writing of

any such measures that have been taken or are being taken in terms of

this article, at the earliest opportunity.

(5) The provisions of this article shall be without prejudice to

the right of the Retirement Scheme Administrator to recover the

amount remaining unpaid by the employer as debts which are certain,

liquidated and due under Title III of Part I of Book Second of the

Code of Organization and Civil Procedure.

The retirement scheme and Retirement Scheme

Administrator shall comply with any reporting requirements as may

be required by Pension Rules.

(1) The retirement scheme and Retirement Scheme

Administrator shall comply with any Pension Rules regarding the

submission to the competent authority and the publication and

availability to members and beneficiaries of a document, known as

"scheme particulars", containing information about the retirement

scheme.

(2) A retirement scheme and Retirement Scheme

Administrator shall comply with any other disclosure requirements as

may be required by Pension Rules, including the type of documents to

be issued, the form and content of any document that may be required

and to whom such documents are required to be provided.

The scheme document shall be binding on those members

and beneficiaries as may be provided for in regulations or Pension

Rules made for the purpose of this article.

(1) A scheme or arrangement which is operating or

purporting to operate as a retirement scheme which is not licensed in

accordance with this Act shall be unenforceable against any

contributor and such contributor shall be entitled to recover any

money paid, or other property transferred by him under the retirement

scheme.

(2) In cases falling under sub-article (1), where such property

cannot be so recovered, such contributor shall be entitled to have it

replaced by its value at the time of the agreement, together with

compensation for any loss sustained by him in consequence of such

payment or transfer or the non-recovery of the property transferred

and any profits that may have accrued as a result of that money or

other property having been transferred by him.

(3) The provisions of sub-articles (1) and (2) shall be without

prejudice to any liability which may arise under any other law.

(4) The provisions of sub-articles (1) and (2) shall not apply to

a retirement scheme which is specifically exempted from licensing

under this Act in terms of regulations made under this Act.

(1) The creditors of a contributor may not enforce their Assignment or

rights over the contributor’s interest in the retirement scheme; nor attachment

retirement

may such creditors attach or subject such interest to any scheme assets.

precautionary or executive warrant

Provided that nothing in this sub-article shall be deemed to

deprive any creditor of such contributor of any rights granted to a

creditor under article 1144 of the Civil Code.

(2) Except as may be prescribed under this Act, every

agreement that is made by a contributor to transfer, dispose of, pledge

or otherwise charge his interest in the retirement scheme shall be

void.

Subject to any regulations or Pension Rules made for the Distributions by

purpose of this article, a retirement scheme shall distribute benefits to retirement

schemes.

members and, or beneficiaries in the amounts and at the times

specified in the applicable scheme document.

Defined Benefit Occupational Retirement Schemes

(1) Every defined benefit retirement scheme which is an Technical

occupational retirement scheme shall comply with technical, financial funding

requirement

and actuarial management regulations as well as regulations

regarding under-provision or over-provision of technical funding

requirement as may be prescribed.

(2) Where in the case of a defined benefit retirement scheme,

which is an occupational retirement scheme, it appears to the

Retirement Scheme Administrator or the retirement scheme actuary,

at the end of such period as may be prescribed that the technical

funding requirement is not met, such Retirement Scheme

Administrator or actuary, as the case may be, shall give written notice

to the competent authority of that fact together with such information

as may be prescribed relating to the failure to meet that requirement.

Retirement Funds

(1) The assets of the retirement fund shall be used for Assets,

the exclusive purpose of providing retirement benefits to the permitted

investments and

beneficiaries of the retirement schemes or the overseas retirement borrowing

powers of a

schemes which have invested in such retirement fund, and of retirement fund.

defraying the expenses as are allowable under this Act of such

retirement scheme, or the bona fide expenses of the overseas

retirement scheme, as applicable.

(2) A retirement fund shall comply with such

requirements in terms of Pension Rules, with regard to the

investment, management, accounting and valuation of its assets

and the extent to which it may borrow money.

A retirement fund or any person, by whatever name

designated, responsible for the operation, administration and

management of the retirement fund, as the case may be, shall produce

such annual accounts, reports, certificates and information as may be

required by Pension Rules.

A retirement fund shall comply with any disclosure

requirements that may be established by Pension Rules, including the

type of documents to be issued, the form and content of any document

that may be required and to whom such documents are required to be

provided.

General

Every licence holder and recognised person under this Act

shall pay to the competent authority such periodic fees, and within

such time, as may from time to time be prescribed.

A licence holder, or recognised person, or any person

having responsibility for the operation, administration and

management of a retirement scheme or retirement fund shall provide

the competent authority with particulars of any changes in the

information provided under this Act as soon as such person or its

delegate becomes aware of such changes and shall notify the

competent authority, on a continuous basis, of any changes or

circumstances which give rise to the existence of close links within

the meaning of article 9.

(1) No person shall acquire, directly or indirectly, a

qualifying shareholding in a service provider or increase such

qualifying shareholding so that the proportion of the voting rights or

of the share capital held by him in the service provider reaches or

exceeds 20 per cent, 30 per cent or 50 per cent, or so that the service

provider becomes the subsidiary of such person, unless such person

has served on the competent authority a written notice stating that he

intends to acquire or increase such shareholding, and -

(a)

the competent authority has, before the end of the

period of three months beginning with the service of that notice,

notified him in writing that there is no objection to his acquiring

or increasing such shareholding; or

(b) that period has elapsed without the competent

authority having served on him a notice of objection; or

(c)

the competent authority has, before the end of the

said period of three months, served a notice of objection which

has subsequently been withdrawn, cancelled or quashed for any

reason

Provided that, the acquisition or increase of the qualifying

shareholding takes place within one year following the event

mentioned in paragraph (a), (b) or (c), as the case may be

Provided further, that in the case envisaged in the aforesaid

paragraph (c), the aforesaid period of one year shall commence to run

from the date that the person concerned has been notified of the

withdrawal, cancellation or quashing of the notice of objection, as the

case may be.

(2) A notice served on the competent authority under sub-

article (1) shall contain such information as the competent authority

may direct and the competent authority may, after receiving such a

notice from any person, by notice in writing require him to provide

such additional information or documents as the competent authority

may reasonably require for deciding whether to serve a notice of

objection.

(3) Where additional information or documents are required

from any person by a notice under sub-article (2), the time between

the giving of the notice and the receipt of the information or

documents shall be added to the period mentioned in sub-article

(1)(a).

(4) Every notice of objection mentioned in sub-article (1)(b)

shall state the reasons for such objection and shall state that the

recipient of the notice may, within such reasonable period after the

service thereof as may be stated in the notice (being a period of not

less than forty-eight hours and not longer than thirty days), make

representations in writing to the competent authority giving reasons

why the notice of objection should be withdrawn; and the competent

authority shall consider any representations so made before arriving

at a final decision.

(5) The competent authority shall notify its final decision in

writing to the person who makes representations in writing under sub-

article (4), within thirty days of receipt of representations as provided

for in the said sub-article (4).

(6) Any person who proposes to sell or dispose, directly or

indirectly, of a qualifying shareholding in a service provider or to

reduce his qualifying shareholding so that the proportion of the voting

rights or of the share capital held by him in the service provider

would fall below 20 per cent, 30 per cent or 50 per cent, or so that the

service provider would cease to be his subsidiary, must inform the

competent authority in writing stating his intention to sell, dispose of

or reduce his shareholding and stating the size of his shareholding

following such sale, disposal or reduction.

(7) Immediately on becoming aware of any proposed or actual

acquisition or disposal of part or all of a shareholding in its share

capital in any of the circumstances dealt with in this article, a service

provider shall inform the competent authority in writing.

(8) Where the influence exercised by a person acquiring or

proposing to acquire a part of the share capital is likely to be

prejudicial to the sound and prudent management of a service

provider, the competent authority may issue a notice of objection, and

exercise any of the powers assigned to it under this Act, including the

power to issue directives, as it may deem reasonable and appropriate

in the circumstances.

(9) A copy of any notice served on the person concerned in

terms of sub-article (8) shall be served on the company to whose

shares it relates.

(10) Without prejudice to the provisions of article 48, where a

shareholding in a service provider is acquired despite the objection of

the competent authority, the exercise of the corresponding voting

rights shall be suspended and any votes cast in contravention of this

sub-article shall be null and void.

(11) If the acquirer of the qualifying holding referred to in this

article is -

(a)

a person holding a licence or an equivalent

authorisation from an overseas regulatory authority, or

(b) the parent undertaking of a person referred to in

paragraph (a), or

(c)

any person controlling a person referred to in

paragraph (a),

and if, as a result of that acquisition, the service provider in which the

acquirer proposes to acquire a holding would become the acquirer’s

subsidiary or come under his control, the assessment of the

acquisition by the competent authority must be the subject of prior

consultation with the overseas regulatory authority taking into

account Malta’s international commitments.

A retirement scheme or retirement fund shall comply with Compliance

any requirements as established from time to time by the with

requirements.

Commissioner of Inland Revenue.

No person, other than licence holders, may issue or cause Advertisements.

to be issued an advertisement in connection with a retirement scheme

or retirement fund in or from within Malta. The competent authority

may, by a Pension Rule made for the purposes of this article,

determine the form and content of such advertisements and the

manner in which any promotional activity in connection with a

retirement scheme or retirement fund shall be carried out or caused to

be carried out.

Reporting Duties

(1) Every auditor or actuary of a licence holder or Auditors’ and

recognised person, as applicable, shall have the duty to report actuaries’

to report.

immediately to the competent authority any fact or decision of which

it becomes aware in its capacity as auditor or as actuary of such

licence holder or recognised person which -

(a)

is likely to lead to a serious qualification of, or

refusal to issue, the auditor’s or actuary’s report on such licence

holder or recognised person; or

(b) constitutes or is likely to constitute a material breach

of the legal or regulatory requirements applicable to a licence

holder or recognised person in or under this Act; or

(c)

seriously impairs the licence holder’s or recognised

person’s ability to meet the current or future liabilities

attributable to it; or

(d) negatively and materially affects the interests of

members and beneficiaries; or

(e)

relates to any other matter which may be prescribed.

(2) An auditor or an actuary of a licence holder or recognised

person, as applicable, shall report to the competent authority any facts

or decisions as specified in sub-article (1) of any person having close

links with such licence holder within the meaning of article 9, of

which he becomes aware in his capacity as auditor or actuary of the

licence holder or recognised person or of the person having such

close links.

(3) The matters which may be prescribed for the purpose of

sub-article (1)(e) may include matters related to persons or entities

other than a retirement scheme or retirement fund, including but not

limited to any person providing any one or more of the services listed

in the Schedule and, or back-office administrative activities as

established by Pension Rules.

(4) The competent authority may require a licence holder or

recognised person, as applicable, to change its appointed auditor or

actuary where, in the competent authority’s opinion, such auditor or

actuary is considered unfit for this appointment, at any time during

his term of office.

(1) If a retirement scheme or Retirement Scheme

Administrator or retirement fund or any person, by whatever name

designated, responsible for the operation, administration and

management of the retirement fund, or any service provider of any

retirement scheme or retirement fund knows, believes or otherwise

suspects that any duty relevant to the operation of the retirement

scheme or retirement fund imposed under this or any other law on any

person acting in connection with the retirement scheme or retirement

fund has not been or is not being complied with, he must immediately

give a written report on the matter to the competent authority.

(2) The competent authority may by directive disqualify a

person from its position if it appears to the competent authority that

the person has failed to comply with sub-article (1).

PART VI

Power to make Regulations

General Provisions

(1) The Minister, acting on the advice of the competent

authority, may make regulations to give better effect to the provisions

of this Act, and without prejudice to the generality of the foregoing

may, by such regulations, in particular, do any of the following

(a)

amend any of the definitions contained in article 2

and amend the Schedule;

(b) regulate retirement schemes and retirement funds, as

well as the services provided and activities carried on in

conjunction therewith or in relation thereto and provide for any

matter he may deem expedient and may in particular grant

rights to the members, beneficiaries and investors in respect of

such retirement schemes and funds, as the case may be, and

regulate the exercise thereof; provide for and regulate the

payment of such fees and other charges as may be prescribed;

regulate any fees and, or any other charges imposed directly or

indirectly on members, beneficiaries or investors; provide for

the safekeeping and custody of the property of retirement

schemes and retirement funds; provide for the protection of the

property of the retirement scheme or retirement fund in the

event of the insolvency of the custodian as may be applicable,

and for the purpose of this paragraph "custodian" shall include a

sub-custodian; provide for and regulate the appointment of

employee representation in the governance of retirement

schemes; regulate the appointment and, or removal of a

Retirement Scheme Administrator or any other person, by

whatever name designated, responsible for the operation,

administration and management of the retirement scheme and,

or retirement fund; establish the nature and classification of

retirement schemes and funds and prescribe conditions

pertaining thereto; regulate the dissolution and, or liquidation of

retirement schemes and retirement funds;

(c)

establish or make other arrangements for the

compensation of members and, or beneficiaries or investors in

cases where a retirement scheme or retirement fund is unable to

satisfy claims in respect of any liability incurred by it; regulate

the management and the financing of any such arrangements

and the contributions and levies to be paid thereto; set the

minimum and maximum levels of compensation payable

thereunder and may under such arrangements distinguish

between different classes of investors, members or beneficiaries

and exclude certain classes from compensation and to make

provision for the regulation of and for other aspects related to

such arrangements and may moreover provide that such

arrangements as may be prescribed shall have a legal

personality distinct from that of the contributors thereto and of

the competent authority and provide for the judicial and legal

representation thereof; and such arrangements shall be exempt

from the payment of income tax as from the date of

establishment of such retirement schemes or retirement funds;

(d) prescribe the circumstances when and the conditions

under which a scheme document becomes binding on members

and beneficiaries;

(e)

define the criteria for determining whether a holding

is an indirect holding for the purposes of determining whether a

qualifying shareholding exists;

(f)

exempt any person, retirement scheme and, or

retirement fund (including such class or type or description

thereof as may be prescribed) or other licence holders or

recognised persons, or advertisement from any one or more of

the provisions of this Act and subject to such conditions or other

requirements, including other forms of authorisation and

notification procedures, as may be prescribed;

(g) regulate the segregation of the assets of retirement

schemes and retirement funds and the provision of any matter

consequential, incidental to or connected therewith;

(h) establish the circumstances when ring fencing

measures may be applied and the measures and conditions

applicable to retirement schemes and, or retirement funds in this

regard;

(i)

establish and regulate the maintenance of funding

requirements by retirement schemes; prescribe regulations

regarding the maintenance of a schedule of payments by

retirement schemes or by service providers on behalf of

retirement schemes; regulate the manner in which a defined

benefit retirement scheme deals with surplus funds and

underfunding;

(j)

regulate the payment (including the time thereof),

nature and amount of benefits which may or may not be paid to

beneficiaries and, or members;

(k) provide for and regulate the payment by any person,

body, retirement scheme or retirement fund, or service provider

as the case may be, of licence or recognition fees or other fees

and such other charges payable to the competent authority in

respect of any matter provided for, by or under this Act or any

regulations made under this article, as may be prescribed;

(l)

transpose, implement and give effect to the

provisions and requirements of the Occupational Pensions

Directive and of the Solvency II Directive insofar as applicable

to occupational pensions, and any other legislative measures of

the European Union requiring transposition and, or

implementation as may be amended from time to time, and

including any implementing measures issued thereunder as may

be applicable to retirement schemes;

(m) provide for and regulate the vesting, acquisition,

preservation of retirement rights and any matter ancillary

thereto;

(n) regulate the provision of personal retirement

schemes and establish conditions for the provision thereof as

well as determine the application or non-application of certain

provisions of the Act to such retirement schemes;

(o) prescribe circumstances and, or conditions regarding

the transfer, disposal, charging, assignment, surrender,

termination and, or forfeiture of pension rights and, or benefits;

in particular prescribe the circumstances in which, and the

conditions subject to which: a beneficiary may transfer his

accrued rights from one retirement scheme to another; and a

retirement scheme may transfer the liabilities attributable to it to

another retirement scheme; and a retirement scheme may

provide for the payment of a retirement benefit in the form of a

lump sum and, or an annuity; and a contributor may transfer,

dispose of or charge his interest in a retirement scheme;

(p) provide for any matter incidental to or connected

with any of the foregoing paragraphs;

(q) provide for any matter that may or is to be

prescribed under any provision of this Act.

(2) Regulations made under this article may also contain

provision for enabling a member, beneficiary, contributor and

generally any person who has entered, or offered to enter, into a

retirement scheme, to rescind the agreement or withdraw the offer

within such period and in such manner as may be prescribed.

(3) Any regulations made under this article may be made

subject to such exemptions or conditions as may be specified therein,

may make different provision for different cases, circumstances or

purposes and may give to the competent authority such powers of

adaptation of the regulations as may be therein specified.

(4) Where regulations have been made in terms of this article,

the competent authority may issue Pension Rules for the better

carrying out and to better implement the provisions of the regulations.

(5) The exercise of any of the powers assigned under this

article shall be subject to any obligations or rights arising from

Malta’s international commitments.

PART VII

Regulatory and Investigatory Powers

(1) The administration of this Act shall be vested in the

competent authority. The competent authority shall perform such

other functions as the Minister may consider appropriate in relation to

the operation of this Act.

(2) For the better carrying out of the provisions of this Act, the

competent authority may, from time to time, issue, amend, or revoke

Pension Rules which shall be binding on licence holders and, or

recognised persons under this Act and others as may be specified

therein and may relate to a particular class of retirement scheme and,

or retirement fund or persons or situations or to persons and situations

generally. Such Pension Rules may lay down additional requirements

and conditions in relation to activities of that licence holder or

recognised person, the conduct of their business, their relations with

members, beneficiaries, investors, the public and other parties as may

be applicable, their responsibilities to the competent authority,

reporting requirements, financial resources, capital adequacy and

related requirements, and any other matters as the competent

authority may consider appropriate, in particular in relation to the

following

(a)

the legal form and constitution of retirement

schemes and, or retirement funds, the governance, structuring

and management of such retirement schemes and, or retirement

funds;

(b) the appointment and removal, qualifications and

experience of the Retirement Scheme Administrator and, or any

person, by whatever name designated, responsible for the

operation, administration and management of the retirement

scheme and, or fund; and any service provider of any such

retirement scheme and retirement fund;

(c)

the powers and duties of the Retirement Scheme

Administrator and, or any person, by whatever name

designated, responsible for the operation, administration and

management of the retirement scheme and, or retirement fund

and any service provider of any such retirement scheme and, or

retirement fund;

(d) the management and valuation of the assets and

obligations of the retirement scheme and retirement fund;

(e)

the restriction or prohibition of the free disposal of

the assets of a retirement scheme falling within such description

as may be prescribed, when in particular -

(i) that retirement scheme has failed to establish

sufficient technical provisions in respect of the entire

business or has insufficient assets to cover the technical

provisions;

(ii) that retirement scheme has failed to hold any

regulatory own funds as may be applicable,

in accordance with the procedure established under article 17B

of the Malta Financial Services Authority Act with respect to Cap. 330.

freezing of assets;

(f)

employee representation in retirement schemes;

(g) the provision of personal retirement schemes and the

regulation thereof;

(h) the form and content of applications to the

competent authority for licensing or recognition or other

purposes in terms of this Act; the format, content or amendment

of a scheme document, the constitutional document of a

retirement fund, scheme particulars and fund particulars;

(i)

the requirements for recognition and generally the

provision of such back-office administrative activities;

establishing

which

activities

constitute

back-office

administrative services for the purpose of recognition of such

activities in terms of article 7 and providing generally for any

matter ancillary or connected with the provision of such

activities;

(j)

provisions on financial resources requirements

applicable to licence holders and, or recognised persons as the

case may be;

(k) reporting and disclosure requirements, including the

preparation of periodical reports with respect to retirement

schemes and retirement funds and the furnishing of those

reports to the competent authority, members, beneficiaries or

investors as the case may be;

(l)

providing for and establishing the requirements

regarding the unitisation of certain classes and nature of

retirement schemes and, or retirement funds;

(m) establishing

circumstances

and

conditions

applicable regarding the transfer of retirement benefits;

(n) establishing conditions and requirements regarding

the payment of expenses by retirement schemes and, or

retirement funds;

(o) establishing conditions and requirements regarding

the payment by means of a cash lump sum to a member without

the necessity of the member’s consent in the event that the

member is no longer employed by the employer;

(p) without prejudice to the provisions of the

Companies Act, establishing the persons who may act as

auditors of licence holders and, or recognised persons or

providing that the persons who may so act shall be persons with

professional qualifications or experience as may be established

or such other persons as are approved by the competent

authority; without prejudice to the provisions of the Companies

Act, making provisions relating to the appointment, resignation

and removal of auditors of licence holders and, or recognised

persons as applicable and the duty of a licence holder or

recognised person to make documents available to the auditors

of such licence holder or recognised person as applicable;

(q) establishing the persons who may act as actuaries of

retirement schemes or provide that the persons who may so act

shall be persons with professional qualifications or experience

as may be established or such other persons as are approved by

the competent authority; make provisions relating to the

appointment, resignation and removal of actuaries of retirement

schemes and the duty of a retirement scheme or Retirement

Scheme Administrator or any person, by whatever name

designated, responsible for the operation, administration and

management of the retirement scheme, to make documents

available to the actuary of such retirement scheme;

(r)

setting minimum standards and requirements which

are to be observed by licence holders when issuing or approving

advertisements in accordance with article 34, including

provision for such exemptions or conditions as may be specified

and different provision for different cases or classes of cases,

under such terms and conditions as may be established;

imposing such conditions, limitations and restrictions on a

licence holder with respect to the issue, as it may consider

appropriate;

(s)

issuing Pension Rules to regulate occupational

schemes established by associations of employers;

(t)

issuing Pension Rules regulating the contribution of

money or other consideration to retirement schemes.

(1)

The competent authority may, by notice in writing, Power of

competent

authority to

obtain

information.

(a)

any contributor, any service provider or any person

who is or was providing, or who appears to be or to have been

providing a service to a retirement scheme, a retirement fund or

overseas retirement scheme, or who appears to be or have been

carrying on activities in connection with a retirement scheme, a

retirement fund or overseas retirement scheme; or

(b) any contributor, service provider or person who has

issued, or appears to have issued an advertisement falling within

the provisions of article 34; or

(c)

any retirement scheme or retirement fund; or

(d) any other contributor, service provider or any other

person who appears to be in possession of relevant information,

to do all or any of the following

(i) to furnish to the competent authority, at such

time and place and in such form as it may specify, such

information and documentation as it may require, with

respect to any service, such retirement scheme or

retirement fund or advertisement as aforesaid, or with

respect to any person with whom the licence holder has

close links within the meaning of article 9;

(ii) to furnish to the competent authority any

information or documentation aforesaid verified in such

manner as it may specify; or

(iii) to attend before the competent authority, or

before a person appointed by it, at such time and place as it

may specify, to answer questions and provide information

and documentation with respect to any such service,

retirement scheme or retirement fund or advertisement or

with respect to any person with whom the licence holder

has close links within the meaning of article 9.

(2) The competent authority may take and retain copies of any

documents furnished or provided under this article.

(3) Where the person required to provide information or

documentation under this article does not have the relevant

information or documentation, he shall disclose to the competent

authority where, to the best of his knowledge, that information or

documentation is, and the competent authority may require any

person, whether indicated as aforesaid or not, who appears to it to be

in possession of that information or documentation, to provide it.

(4) A statement made and documentation provided in

pursuance of any requirement under this article may be used in

evidence against the person making the statement or providing the

documentation as well as against any person to whom they relate.

(5) The provisions of this article shall not apply to information

or documentation which is privileged in accordance with the

provisions of article 642 of the Criminal Code.

(6) The power to require the production of documentation

under the provisions of this article shall be without prejudice to any

lien or charge claimed by any person in relation to such

documentation.

(7) Where the competent authority has appointed a person

under article 40(1), such person shall, for the purposes of carrying out

his functions under his appointment, have all the powers conferred on

the competent authority by this article and a requirement made by him

shall be deemed to be and have the same force and effect as a

requirement by the competent authority.

(8) Without prejudice to the other provisions of this article, a

holder of a licence or recognition may be required to submit to the

Central Bank of Malta such information as the Bank may reasonably

require for the discharge of its duties under the Central Bank of Malta

Act.

(1) The competent authority may, whenever it deems it

necessary or expedient, appoint an inspector or inspectors to

investigate and report on the affairs of any retirement scheme,

retirement fund, service provider, overseas retirement scheme or

person, referred to in article 39(1)(a) to (c).

(2) An inspector appointed under sub-article (1) -

(a)

may also, if he thinks it necessary or expedient for

the purposes of that investigation, investigate the affairs of any

retirement scheme, retirement fund, service provider, overseas

retirement scheme or person, mentioned in sub-article (1);

(b) shall have and may exercise all the powers conferred

on the competent authority by article 39, and any requirement

made by him shall be deemed to be and have the same force and

effect as a requirement by the competent authority; and

(c)

may, and if so directed by the competent authority

shall, make interim reports and on the conclusion of his

investigation shall make a final report to the competent

authority.

(3) The competent authority shall have power to order that all

expenses of, and incidental to, an investigation pursuant to this article

be paid by the retirement scheme, retirement fund, service provider,

overseas retirement scheme or person concerned.

(1) Without prejudice to any of the powers conferred on Power to issue

it by articles 39 and 40, the competent authority may, whenever it directives.

deems it necessary, and whether upon a report by an inspector

appointed under article 40 or not, give, by notice in writing, such

directives as it may deem appropriate in the circumstances; and

anyone referred to in article 39 to whom or to which the notice is

given shall obey, comply with and otherwise give effect to any such

directive within the time and in the manner stated in the directive or

further directive.

(2) Without prejudice to the generality of the foregoing

provisions of this article, a directive under this article may -

(a)

require anything to be done or be omitted to be

done, or impose any prohibition, restriction or limitation, or any

other requirement, and confer powers, with respect to any

transaction or other act, or to any assets, or to any other thing

whatsoever;

(b) require a retirement scheme, or a retirement fund

and any other person who may issue or redeem units or shares in

the retirement scheme or retirement fund, as the case may be, to

cease the issue or redemption of units or shares or all or any

combination of those activities, as may be specified in the

directive;

(c)

require that any person having functions in relation

to the holder of a licence or recognition be removed or removed

and replaced by another person acceptable to the competent

authority;

(d) require a retirement scheme or Retirement Scheme

Administrator or any person, by whatever name designated,

responsible for the operation, administration and management

of the retirement scheme or retirement fund as applicable, to

wind up the retirement scheme or retirement fund by such date

and in accordance with such procedure and other provisions as

may be specified in the directive;

(e)

require a retirement scheme or retirement fund or

service provider or any person who is or was providing, or who

appears to be or to have been providing a service, to cease

operations and to wind up its affairs, in accordance with such

procedures and directions as may be specified in the directive,

which may provide for the appointment of a person to take

possession and control of all documents, records, assets and

property belonging to or in the possession or control of the

retirement scheme or retirement fund or service provider or

such other person;

(f)

require the cessation of any practice that is contrary

to the provisions adopted in the implementation of the

Occupational Pensions Directive.

(3) Where the competent authority is satisfied that the

circumstances so warrant, it may at any time make public any

directive it has given under any of the provisions of this article.

(4) The power to give directives under this article shall include

the power to vary, alter, add to or withdraw any directive, as well as

the power to issue new or further directives.

(1) Any officer, employee or agent of the competent

authority, on producing, if required, evidence of his authorisation,

may enter premises occupied by a person on whom a notice has been

served under article 39 or whose affairs are being investigated under

article 40, for the purpose of obtaining there the information or

documents required by that notice, or otherwise for the purpose of the

investigation, and of exercising any of the powers conferred by the

said articles.

(2) Where any officer, employee or agent of the competent

authority has reasonable cause to believe that if such notice as is

referred to in sub-article (1) were served it would not be complied

with or that any documents to which it could relate would be

removed, tampered with or destroyed, such person may, on

producing, if required, evidence of his authorisation, enter any

premises referred to in sub-article (1) for the purpose of obtaining

there any information or documents, being information or documents

that could have been required under such notice as is referred to in

sub-article (1).

(3) For the purposes of any action taken under the provisions

of this article, the competent authority may request the assistance of

the Commissioner of Police, who shall for such purpose exercise such

powers as are vested in him for the prevention of offences and the

enforcement of law and order.

(1) The competent authority may exercise the following Co-operation

powers at the request of or for the purposes of assisting an overseas with

regulatory

regulatory authority

authorities and

EIOPA.

(a)

the power to impose, revoke or vary conditions on

the licence or recognition granted pursuant to the provisions of

article 9(3);

(b) the power to cancel or suspend a licence or

recognition under article 10(1);

(c)

the power to require information and documentation

under article 39;

(d)

the power to appoint inspectors under article 40;

(e)

the powers of intervention under article 41;

(f)

the powers of entry under article 42;

(g) the power to communicate to the overseas

regulatory authority information which is in the possession of

the competent authority, whether or not as a result of the

exercise of any of the above powers.

(2) The competent authority shall exercise powers by virtue of

this article

(a)

where the assistance is requested by the overseas

regulatory authority for the purpose of the exercise of one or

more of its regulatory functions; or

(b) where so required within the terms of Malta’s

international commitments; or

(c)

where so required within the terms of undertakings

assumed in bilateral or multilateral agreements for the exchange

of information and other forms of collaboration with overseas

regulatory authorities, including a request arising under a

memorandum of understanding concluded with the competent

authority.

(3) The competent authority shall cooperate with EIOPA for

the purposes of the Occupational Pensions Directive in accordance

with Regulation (EU) No 1094/2010. The competent authority shall,

without delay, provide EIOPA with all information necessary to carry

out its duties under the Occupational Pensions Directive and under

Regulation (EU) No 1094/2010, in accordance with Article 35 of that

Regulation.

PART VIII

Appeals, Remedies, Sanctions and Confidentiality

(1) Subject to the provisions of this article, an appeal

shall lie to the Financial Services Tribunal established under article

21 of the Malta Financial Services Authority Act with respect to

(a)

any notice in accordance with articles 4(4), 5(3) and

6(3);

(b) any failure to inform an applicant within the terms

of article 9(8);

(c)

any refusal, variation, cancellation or suspension of

a licence or recognition under articles 9, 10 and 11;

(d)

any decision under article 32(5);

(e)

any directive given under article 41; or

(f)

any administrative penalty or other measures

imposed under article 46.

(2) An appeal made under this article shall not suspend the

operation of any decision or directive from which the appeal is made

Provided that a decision to cancel a licence or recognition shall

not become operative until the expiration of the period within which

an appeal lies under this article and, if an appeal is made within such

period, the decision shall become operative on the date of the decision

of the Tribunal dismissing the appeal or the date on which the appeal

is abandoned.

(3) The provisions of article 21 of the Malta Financial

Services Authority Act shall apply mutatis mutandis to appeals made

to the Tribunal under this Act.

(1) If, on an application by the competent authority Powers of the

Court in the

made to the Civil Court, First Hall, the Court is satisfied -

case of a likely

contravention.

(a)

that there is reasonable likelihood that a person will

contravene any of the provisions of this Act or any regulations

or Pension Rules made thereunder, or will contravene or fail to

comply with any condition, obligation, requirement, Pension

Rules, or directive made or given under any of the provisions of

this Act; or

(b) that a person has contravened any such provision or

has contravened or failed to comply with any such condition,

obligation, requirement, Pension Rules, or directive and that

steps could be taken to remedy the contravention or failure,

the Court may give such orders as it may deem appropriate to restrain

the contravention or, as the case may be, to require the person referred

to in paragraph (a) or (b), or any other person who appears to the

Court to have been knowingly concerned in the contravention, to take

such steps as the Court may direct.

(2) If, on an application made under sub-article (1), the Court

is satisfied that a person has entered into any transaction in

contravention of any of the provisions of this Act or any regulations

or Pension Rules made thereunder, the Court may order that person

and any other person who appears to the Court to have been

knowingly concerned in the contravention, to take such steps as the

Court may direct for restoring the parties to the position in which they

were before the transaction was entered into.

(3) If, on application made under sub-article (1), the Court is

further satisfied that -

(a)

profits have accrued to any person as a result of the

contravention; or

(b) a shareholder, contributor, member or a beneficiary

or an investor has suffered loss or been otherwise adversely

affected as a result of that contravention,

the Court may order the person responsible for the contravention to

pay into Court such sum as appears to it to be just having regard to the

extent of the profit, loss or adverse effect as aforesaid, and order such

sum to be paid out as the Court may direct to the persons who have

entered into transactions as a result of which profits have accrued or

losses or adverse effects have been suffered as aforesaid.

(4) For the purposes of this article the Court may order the

production by any person of such accounts and the provision of such

information, and authenticated in such manner, as the Court may

deem appropriate.

(5) The provisions of this article shall be without prejudice to

any right of any aggrieved person to bring proceedings directly in

respect of any right such person may otherwise have independently of

the competent authority.

(1) Without prejudice to any other powers assigned to

the competent authority in terms of this Act, where a licence holder or

recognised person or the manager, secretary, director or any other

person responsible for a licence holder or recognised person

contravenes or fails to comply with any of the conditions imposed in

a licence or recognition, and, or where the competent authority is

satisfied that a person’s conduct amounts to a breach of any of the

provisions of this Act, regulations or Pension Rules made thereunder,

including failure to cooperate in an investigation, the competent

authority may by notice in writing and without recourse to a court

hearing impose on the licence holder or recognised person, manager,

secretary, director, and, or any other person as the case may be, an

administrative penalty which may not exceed ninety-three thousand

and two hundred euro.

(2) Pension Rules may provide for the imposition of

administrative penalties or other measures that may be imposed by

the competent authority on licence holders, recognised persons or

others, as may be specified, whether in the form of a fixed penalty, a

daily penalty, or both, for any breach of the rules.

(3) The imposition by the competent authority of an

administrative penalty in terms of this article shall be without

prejudice to any other consequence of the act or omission of the

offender under civil or criminal law

Provided that, in all cases where the competent authority

imposes an administrative penalty in respect of anything done or

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

constitutes a criminal offence under this Act, no proceedings may be

taken or continued against the said person in respect of such criminal

offence.

(4) The competent authority may, by means of a public

statement, disclose the name of the person sanctioned, the particular

breach of the provision of this Act, regulations or Pension Rules made

thereunder, and the penalty or administrative measure imposed. The

competent authority shall withhold such public disclosure where it

deems that such disclosure would seriously jeopardise the financial

markets or cause disproportionate damage to the parties involved.

(5) The imposition by the competent authority of an

administrative measure in terms of this article shall be without

prejudice to any other consequences of the act or omission of the

offender under civil or criminal law

Provided that, in all cases where the competent authority

imposes an administrative measure consisting of an administrative

penalty in respect of anything done or omitted to be done by any

person and such act or omission also constitutes a criminal offence

under this Act, no proceedings may be taken or continued against the

said person in respect of such criminal offence.

In exercising its powers referred to in articles 41, 43 and Obligation to

46, the competent authority shall in its decisions state the grounds on give reasons.

which such decisions have been based.

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

any of the provisions of this Act, or contravenes or fails to comply

with any condition, obligation, requirement, regulation, Pension

Rules or directive made or given under any of the provisions of this

Act, shall be guilty of an offence.

(2) Any person who for the purposes of, or pursuant to, any of

the provisions of this Act or of any regulations made thereunder, or

any condition, obligation, requirement or Pension Rules or directive

made or given as aforesaid, furnishes information or makes a

statement which he knows to be inaccurate, false or misleading in any

material respect, or recklessly furnishes information or makes a

statement which is inaccurate, false or misleading in any material

respect, shall be guilty of an offence.

(3) Any person who is knowingly a party to the carrying on of

any retirement scheme or retirement fund or licensable or recognised

activity with an intent to defraud or for a fraudulent purpose, shall be

guilty of an offence.

(4) Any person who by any statement, promise or forecast

which he knows to be misleading, false or deceptive, or by any

dishonest concealment of material facts, or by the reckless making

(whether dishonest or otherwise) of any statement, promise or

forecast which is misleading, false or deceptive, induces or attempts

to induce another person to enter into or offer to enter into a

retirement scheme or retirement fund, shall be guilty of an offence.

(5) Any person who with intent to avoid detection of the

commission of an offence under this Act removes, destroys, conceals

or fraudulently alters any book, document or other paper, shall be

guilty of an offence.

(6) Any person who intentionally obstructs a person exercising

rights conferred by this Act shall be guilty of an offence.

A person guilty of an offence under the provisions of

article 48 shall, unless another penalty is prescribed, be liable on

conviction to a fine (multa) not exceeding four hundred and sixty-six

thousand euro or to a term of imprisonment not exceeding four years,

or to both such fine and imprisonment.

(1) No proceedings for an offence under this Act shall

be commenced without the consent of the Attorney General.

(2) The provisions of this Act shall not affect any criminal

liability that may be incurred by any person under any other law.

(1) If it appears to the competent authority that a licence

holder and, or recognised person or other person has contravened any

of the provisions of this Act or of any regulations made thereunder or

has contravened or failed to comply with any condition, obligation,

requirement, Pension Rules or directive made or given under any of

the provisions of this Act, the competent authority may publish a

statement to that effect.

(2) Nothing in this article shall restrict or otherwise prejudice

the powers of the competent authority under article 41(4).

(1) Information obtained by the competent authority or

by its officers, employees, agents as well as by inspectors, auditors,

actuaries and experts engaged by the competent authority for the

purposes of, or pursuant to, any of the provisions of this Act, or of

any regulations or Pension Rules made thereunder, or in the discharge

of any functions under any of the said provisions, shall be treated as

confidential and protected by the duty of professional secrecy, and

shall not be disclosed to any person, except in the following cases

(a)

where the information is disclosed with a view to the

institution of, or otherwise for the purposes of, any proceedings

by the Authority before any court under this Act;

(b) where the disclosure is required for the detection,

prevention or prosecution of criminal offences under the

criminal provisions of this Act or any other Act;

(c)

with a view to enabling or assisting the competent

authority in the performance or discharge of any of its functions

under this Act;

(d) where the information has been made available to

the public by virtue of being disclosed in any circumstances in

which, or for any purpose for which, disclosure is not precluded

by this article;

(e)

where a summary or collection of information is

prepared or supplied in such a way as not to enable the identity

of any person to whom the information relates to be ascertained;

(f)

where the information is disclosed to an auditor or

actuary where such disclosure would assist the auditor or

actuary in the exercise of its functions under article 16;

(g) where the information is provided to the Central

Bank of Malta or to the Listing Authority under the Financial Cap. 345.

Markets Act, where such information is required by the Bank or

by the Listing Authority in the exercise of their respective

functions in terms of law;

(h) in response to a request from, or for the purpose of,

assisting an overseas regulatory authority pursuant to article 43;

(i)

where the information is provided to such other

local or overseas regulatory, judicial or enforcement authorities

and where the disclosure is required for the pursuance of serious

regulatory concerns or criminal nature or the detection,

prevention or prosecution of criminal offences;

(j)

where the information is disclosed in civil or

commercial proceedings in relation to the bankruptcy or

compulsory winding up or dissolution and consequential

winding up by the Court of a licence holder or recognised

person, provided such information does not concern third

parties and is necessary for the proceedings, or is disclosed to an

overseas body responsible for the liquidation and bankruptcy of

a person holding a licence or recognition or an equivalent

authorisation from an overseas regulatory authority

Provided that, this article shall not prevent the competent

authority from using such information for other purposes where the

body or person communicating information to the competent

authority consents thereto.

(2) Subject to the provisions of article 43, information

obtained from an overseas regulatory authority may only be disclosed

to another person, to another overseas regulatory authority or to any

other third party with the prior approval of the authority which had

provided the information.

PART IX

Miscellaneous

The competent authority and any officer or employee of

the competent authority, and any other person appointed to perform a

function under this Act, or under any regulation and, or Pension Rules

made thereunder, or under a directive made or given under any of the

provisions of this Act, shall not be liable in damages for anything

done or omitted to be done in the discharge or purported discharge of

any functions under this Act, or any regulation and, or Pension Rules

thereunder, unless the act or omission is shown to have been done or

omitted to be done in bad faith.

A notice or other document to be given or served under

this Act, or any regulations or Pension Rules made thereunder, shall

be deemed to have been duly given or served on a person if -

(a)

it has been delivered to it; or

(b) it has been left at the address furnished by it to the

competent authority, or to its last known address; or

(c)

it has been sent to it by post, e-mail or by telefax at

any of the aforesaid addresses; or

(d) in the case of a body of persons, whether corporate

or unincorporated, or of a retirement scheme or a retirement

fund, if it has been given or served in any of the manners

aforesaid to or on a retirement scheme or retirement fund,

Retirement Scheme Administrator, any person, by whatever

name designated, responsible for the operation, administration

and management of the retirement fund, secretary, clerk,

manager, or their equivalent, or to any contributor or to any

director or member of any person, by whatever name

designated, responsible for the operation, administration and

management of the retirement scheme or fund or an appointed

representative.

(1) Subject to the provisions of article 56, the Special

Funds (Regulation) Act is hereby repealed without prejudice to

anything done or which may be done under that Act, saving every

authorisation, approval or order taken or commenced thereunder,

which shall continue to be valid and in force, as if such authorisation,

approval or order were taken or commenced under this Act.

(2) Subject to sub-article (1), and unless the context otherwise

requires, any reference to the Special Funds (Regulation) Act used in Cap. 450.

any law, regulation, rule or other document before the coming into

force of this Act, shall be deemed to be a reference to this Act.

(1) The Minister, acting on the advice of the competent Minister’s

authority, may, by regulations, make transitional provisions in respect power

transitional

of such persons who, on the effective date of this Act, were registered arrangements.

under the Special Funds (Regulation) Act, and, without prejudice to

the generality of the foregoing, may, by such regulations, in particular

prescribe a period within which such persons shall apply for a licence

under this Act.

(2) Subject to the provisions of article 55, any person licensed

under the Special Funds (Regulation) Act shall, not later than the Cap. 450.

period prescribed in terms of sub-article (1), conform with the

provisions of this Act or otherwise cease to carry on the activities for

which such licence was granted, and such person shall until the

prescribed period or until it conforms with the provisions of this Act,

whichever is the earlier, continue to be governed by the provisions of

the Special Funds (Regulation) Act.

(3) Where a person ceases to carry on the activities for which

it was licensed on the grounds that such person did not, on the

prescribed date, conform with the provisions of this Act, that person

shall cease such activities with immediate effect and the competent

authority may impose such conditions as it may deem appropriate in

the circumstances.

Immediately after sub-article (22) of article 56 of the Amendment of

Income Tax Act, there shall be added the following new sub-articles: the

Act.

''(23) Notwithstanding the provisions of sub-articles (1)

and (2) in the case of an individual who, after 1 January 2011,

has been granted a special tax status under such terms and

conditions as the Minister may prescribe, the tax upon the

chargeable income of that individual, other than income

mentioned in sub-article (10)(b) shall be charged at the rate of

fifteen cents (0.15) on every euro thereof

Provided that the Minister shall prescribe the minimum tax

payable by such individual in respect of any year of assessment.

(24) In the case of an individual or individuals who, after

1 January 2011, has or have been granted a special temporary

tax status under such terms and conditions as the Minister may

prescribe, the tax upon the chargeable income, other than

income mentioned in sub-article (10)(b) shall be charged at the

rate of fifteen cents (0.15) on every euro thereof

Provided that the Minister shall prescribe the minimum tax

payable by such individual or individuals in respect of any year

of assessment.''.

The Trusts and Trustees Act shall be amended as follows

(a)

in article 2 thereof, in the definition "unit trust",

immediately after the words "as defined in the Investment

Services Act" there shall be added the words "or a retirement

scheme or a retirement fund licensed under the Retirement

Pensions Act set up as a unit trust";

(b) in sub-article (2) of article 12 thereof, for the words

"or to a retirement scheme registered in terms of the Special

Funds (Regulation) Act and set up as a trust." there shall be

substituted the words "or to a retirement scheme licensed in

terms of the Retirement Pensions Act and set up as a trust.";

(c)

paragraph (c) of sub-article (6) of article 43 thereof

shall be substituted by the following

"(c) A person licensed in terms of the Retirement

Pensions Act to act as a Retirement Scheme Administrator

acting as a trustee to retirement schemes shall not require

further authorisation in terms of this Act provided that

such trustee services are limited to retirement schemes.";

(d) paragraph (iii) of sub-article (8) of article 43 thereof

shall be substituted by the following

"(iii) a person licensed under the Retirement

Pensions Act as a retirement scheme administrator:"; and

(e)

in paragraph (h) of sub-article (1) of article 57

thereof, immediately after the words "Investment Services Act,"

there shall be added the words "or the Retirement Pensions

Act,".

The Companies Act shall be amended as follows

(a)

article 84 thereof shall be amended as follows

(i)

for sub-article (2)(b)(ii) thereof, there shall be

substituted the following

"(ii) to act and operate as a retirement

scheme or retirement fund within the meaning

of article 2 of the Retirement Pensions Act.";

and

(ii) in sub-article (11) thereof

1. for the words "the Special Funds

(Regulation) Act", there shall be substituted

the words "the Retirement Pensions Act"; and

2. for the words "operating as a

Retirement Fund within the meaning of articles

2 and 4 of the Special Funds (Regulation)

Act;", there shall be substituted the words

"operating as a retirement scheme or a

retirement fund within the meaning of article 2

of the Retirement Pensions Act;";

(b) for sub-article (6)(a) of article 194 thereof, there

shall be substituted the following

"(a) the business of the company consists of

investing in funds mainly in securities with the aim of

spreading investment risk and giving members of the

company the benefit of the results of the management of its

funds;"; and

(c)

in the Fifth Schedule thereof, for the first paragraph

thereof, there shall be substituted the following

"1. Without prejudice to any requirements laid

down by the competent authority under the Investment

Services Act or the Retirement Pensions Act, the

individual accounts of an investment company with

variable share capital shall disclose at least the information

specified in the following provisions of this Schedule.".