ACT No. IX of 2011 AN ACT to amend various laws relating to communications and to make provision with respect to matters ancillary thereto or connected therewith.

(L.S.) G eorge A bela

14th June, 2011

ACT No. IX of 2011

AN ACT to amend various laws relating to communications

and to make provision with respect to matters ancillary thereto or

connected therewith.

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

and consent of the House of Representatives, in this present

Parliament assembled, and by the authority of the same, as follows

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

Laws (Amendment) Act, 2011.

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

the Minister responsible for communications may by notice in

the Gazette appoint, and different dates may be so appointed for

different provisions and different purposes of this Act.

Part I

Amendment of the Electronic

Communications (Regulation) Act

(1) This Part amends the Electronic Communications Amendment of the

(Regulation) Act, and it shall be read and construed as one with the Communications

Electronic Communications (Regulation) Act, hereinafter in this (Regulation) Act.

Part referred to as “the principal Act”.

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

the Minister responsible for communications may by notice in

the Gazette appoint and different dates may be so appointed for

different provisions and different purposes thereof.

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

amended as follows

(a) for the definition “access”, there shall be substituted

the following definition

“ “access” means the making available of facilities

and, or services, to another undertaking, under defined

conditions, on either an exclusive or non-exclusive basis,

for the purpose of providing electronic communications

services including when they are used for the delivery

of information society services or broadcast content

services. It covers inter alia access to network elements

and associated facilities, which may involve the

connection of equipment, by fixed or non-fixed means

(in particular this includes access to the local loop and

to facilities and services necessary to provide services

over the local loop); access to physical infrastructure

including buildings, ducts and masts; access to relevant

software systems including operational support systems;

access to information systems or databases for pre-

ordering, provisioning, ordering, maintaining and repair

requests, and billing; access to number translation or

systems offering equivalent functionality; access to fixed

and mobile networks, in particular for roaming; access to

conditional access systems for digital television services

and access to virtual network services;”;

(b) immediately before the definition “the Act”, there

shall be inserted the following new definition

“ “Access Directive” means Directive Number

2002/19/EC of the European Parliament and of the

Council of the 7th March, 2002 on access to, and

interconnection of, electronic communications

networks and associated facilities, as may be amended

from time to time;”;

(c) for the definition “the Act”, there shall be

substituted the following new definition

“ “this Act” means the Electronic Communications

(Regulation) Act, and includes any regulations made

thereunder unless the context otherwise requires;”,

and for the words “the Act” wherever they occur

in the principal Act there shall be substituted the words

“this Act”;

(d) in the definition “apparatus”, for the word

“includes” there shall be substituted the word “means”;

(e) for the definition “associated facilities”, there shall

be substituted the following definition

“ “associated facilities” means those associated

services, physical infrastructures and other facilities or

elements associated with an electronic communications

network and, or an electronic communications service

which enable and, or support the provision of services

through that network and, or service or have the

potential to do so, and include inter alia buildings or

entries to buildings, building wiring, antennae, towers

and other supporting constructions, ducts, conduits,

masts, manholes, and cabinets;”;

(f) immediately after the definition “associated

facilities”, there shall be inserted the following new

definition

“ “associated services” means those services

associated with an electronic communications network

and, or an electronic communications service which

enable and, or support the provision of services through

that network and, or service or have the potential to do

so and include inter alia number translation or systems

offering equivalent functionality, conditional access

systems and electronic programme guides, as well as

other services such as identity, location and presence

service;”;

(g) immediately after the new definition “associated

services”, there shall be inserted the following new definition

“ “Authorisation Directive” means Directive

Number 2002/20/EC of the European Parliament

and of the Council of the 7th March, 2002 on the

authorisation of electronic communications networks

and services, as may be amended from time to time;”;

(h) immediately

after

the

new

definition

“Authorisation Directive”, there shall be inserted the

following new definition

“ “authorised undertaking” means an under-

taking deemed to be authorised in accordance with

this Act;”;

(i) in the definition “ “the Authority and “the competent

authority” ”, the words “ “and “the competent authority” ”

shall be deleted;

(j) immediately before the definition “cable television

networks”, there shall be inserted the following new

definition

“ “BEREC” means the Body of European

Regulators for Electronic Communications;”;

(k) immediately after the definition “cable television

networks”, there shall be inserted the following new

definition

“ “call” means a connection established by means

of a publicly available electronic communications

service allowing two-way voice communication;”;

(l) the definition “Community” shall be deleted;

(m) for the definition “consumer”, there shall be

substituted the following

“ “consumer” means any natural person who

uses or requests a publicly available electronic

communications service, for purposes which are

outside his trade, business or profession;”;

(n) the definition “cross-border” shall be deleted;

(o) in the definition “decision”, for the words

“includes any determination, measure, order, requirement or

specification” there shall be substituted the words “includes

any determination, directive, measure, requirement or

specification”;

(p) the definition “directive” shall be deleted;

(q) immediately before the definition “electronic

communications network”, there shall be inserted the

following new definition

“ “Directive on Privacy and Electronic

Communications” means Directive Number 2002/58/

EC of the European Parliament and of the Council

of the 12th July, 2002 concerning the processing of

personal data and the protection of privacy in the

electronic communications sector, as may be amended

from time to time;”;

(r) immediately after the new definition “Directive

on Privacy and Electronic Communications”, there shall be

inserted the following new definition

“ “disabled end-users” means a person with a

disability as defined in the Equal Opportunities (Persons

with Disability) Act, whose special needs as an end-user

are either due to disability or related to ageing;”;

(s) in the definition “electronic communications

network”, for the words “means transmission systems

and, where applicable, switching or routing equipment and

other resources which permit the conveyance of signals

by wire” there shall be substituted the words “means

transmission systems and, where applicable, switching or

routing equipment and other resources, including network

elements which are not active, which permit the conveyance

of signals by wire”;

(t) the definition “European Commission” shall be

deleted;

(u) immediately before the definition “exclusive

rights”, there shall be inserted the following new definition

“

“European

Electronic

Communications

Directives” means Directive 2002/21/EC of the

European Parliament and of the Council of 7 March

2002 on a common regulatory framework for electronic

communications networks and services (Framework

Directive); Directive 2002/20/EC on the authorisation

of electronic communications networks and services

(Authorisation

Directive),

Directive 2002/19/

EC on access to, and interconnection of, electronic

communications networks and associated facilities

(Access Directive), Directive 2002/22/EC on universal

service and user’s rights relating to electronic

communications networks and services (Universal

Service Directive) and Directive 2002/58/EC of the

European Parliament and of the Council of 12 July

2002 concerning the processing of personal data and the

protection of privacy in the electronic communications

sector (ePrivacy Directive) as may be amended from

time to time;”;

(v) immediately after the definition “ exclusive rights”,

there shall be inserted the following new definition

“ “Framework Directive” means Directive

Number 2002/21/EC of the European Parliament and

of the Council of the 7th March, 2002 on a common

regulatory framework for electronic communications

networks and services, as may be amended from time

to time;”;

(w) immediately after the definition “general

authorisation”, there shall be inserted the following new

definition

“ “harmful interference” means interference which

endangers the functioning of a radio navigation service

or of other safety services or which otherwise seriously

degrades, obstructs or repeatedly interrupts a radio

communications service operating in accordance with

the applicable international, European Union or national

regulations;”;

(x) in the definition “internal market”, for the words

“of the Community” there shall be substituted the words “of

the European Union”;

(y) immediately after the definition “internal market”,

there shall be inserted the following new definition

“ “ITU Radio Regulations” means the Radio

Regulations annexed to, or regarded as being annexed

to the most recent International Telecommunications

Convention of the International Telecommunications

Union (ITU) which is in force at that time;”;

(z) for the definition “local loop”, there shall be

substituted the following definiton

“ “local loop” means the physical circuit

connecting the network termination point to a

distribution frame or equivalent facility in the fixed

electronic communications network;”;

(aa) in the definition “Member State”, for the words

“the Community” there shall be substituted the words “the

European Union”;

(bb) in the definition “national regulatory authority”,

for the words “of Community law” there shall be substituted

the words “of European Union law”;

(cc) the definition “person” shall be deleted;

(dd) for the definition “public communications

network”, there shall be substituted the following definition

“ “public communications network” means an

electronic communications network used wholly or

mainly for the provision of electronic communications

services available to the public which support the

transfer of information between network termination

points;”;

(ee) the definition “public telephone network” shall be

deleted;

(ff) for the definition “publicly available telephone

service”, there shall be substituted the following definition

“ “publicly available telephone service” means a

service made available to the public for originating and

receiving, directly and indirectly, national or national

and international calls through a number or numbers in a

national or international telephone numbering plan;”;

(gg) immediately before the definition “subscriber”,

there shall be inserted the following

“ “spectrum allocation” means the designation of

a given frequency band for use by one or more types

of radio communications services, where appropriate,

under specified conditions;”;

(hh) in the definition “universal services”, for the

words “as may be defined under regulations made under this

Act” there shall be substituted the words “as may be defined

by or under this Act”; and

(ii) immediately after the definition “universal

services”, there shall be inserted the following new

definition

“ “Universal Service Directive” means

Directive Number 2002/22/ EC of the European

Parliament and of the Council of the 7th

March, 2002 on universal service and users’

rights relating to electronic communications

networks and services as may be amended from

time to time;”.

Article 3 of the principal Act shall be amended as

(a) the whole article shall be renumbered as subarticle

(1) thereof;

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

be added the following new subarticles

“(2) The Authority shall be afforded adequate

financial and human resources to carry out its functions

under this Act and under any other applicable laws

relating to electronic communications which the

Authority is entitled to enforce, including any functions

related to international cooperation.

(3) In fulfilling its functions and duties under

this Act and under any other laws relating to electronic

communications which the Authority is entitled to

enforce, the Authority shall actively support the goals

of the BEREC of promoting greater coordination and

coherence in the application of the European Electronic

Communications Directives, and shall also take the

utmost account of the opinions and common positions

adopted by BEREC.

(4) In the exercise of its functions and duties

under this Act and under any other laws relating

to electronic communications which the Authority

is entitled to enforce, the Authority shall take

utmost account of the relevant European Commission

recommendations. With reference to recommendations

issued in accordance with Article 19 of the Framework

Directive, the Authority shall, if it chooses not to follow

a recommendation, inform the European Commission,

giving the reasons for its position.

(5) The Authority shall work with the European

Commission and BEREC to identify the types of

instruments and remedies best suited to address

particular types of situations in the marketplace.”.

Article 4 of the principal Act shall be amended as

(a) the whole article shall be renumbered as subarticle

(1) thereof;

(b) for paragraph (a) of subarticle (1) thereof as

renumbered, there shall be substituted the following

“(a) to promote competition in accordance with

this Act by –

(i) ensuring

that

users,

including

disabled end-users, elderly end-users, and end-

users with special social needs, derive maximum

benefit in terms of choice, price and quality;

(ii) ensuring that there is no distortion

or restriction of competition in the electronic

communications sector including the transmission

of content; and

(iii) encouraging efficient use and

ensuring the effective management of radio

frequencies and numbering resources;”;

(c) for paragraph (b) of subarticle (1) thereof as

renumbered, there shall be substituted the following

“(b) to contribute to the development of the

internal market by -

(i) removing remaining obstacles to

the provision of electronic communication

networks, associated facilities and services and

electronic communications services at European

Union level;

(ii) encouraging the establishment and

development of trans-European networks and

the interoperability of transnational services and

end-to-end connectivity; and

(iii) working

with

electronic

communications national regulatory authorities in

Member States, BEREC and with the European

Commission in a transparent manner so as to

ensure the development of consistent regulatory

practice and the consistent application of European

Union law in this field.”;

(d) for paragraph (c) of subarticle (1) thereof as

renumbered, there shall be substituted the following

“(c) to promote the interests and rights of

users within the European Union by -

(i) ensuring that all users have access to a

universal service;

(ii) ensuring a high level of protection

for users in their dealings with undertakings, in

particular by ensuring the availability of simple and

inexpensive dispute resolution procedures carried

out by a body that is independent of the parties

involved;

(iii) contributing towards ensuring a high

level protection of personal data and privacy;

(iv) promoting the provision of clear,

comprehensive and up-to-date information, in

particular requiring transparency of tariffs and

conditions for using publicly available electronic

communications services;

(v) addressing the needs of specific social

groups, in particular disabled end-users, elderly

end-users and end-users with special social needs;

(vi) ensuring that the integrity and security

of public communications networks are maintained;

and

(vii) promoting the ability of end-users

to access and distribute information or run

applications and services of their choice.”; and

(e) immediately after subarticle (1) thereof as

renumbered, there shall be added the following new

subarticle

“(2) The Authority shall, in pursuit of the policy

objectives referred to in this article, apply objective,

transparent, non-discriminatory and proportionate

regulatory principles by, inter alia

(a) promoting regulatory predictability by

ensuring a consistent regulatory approach over

appropriate review periods;

(b) ensuring that, in similar circumstances,

there is no discrimination in the treatment of

undertakings providing electronic communications

networks and services;

(c) safeguarding competition to the benefit

of users and promoting, where appropriate,

infrastructure-based competition;

(d) promoting efficient investment and

innovation in new and enhanced infrastructures,

including by ensuring that any access obligation

takes appropriate account of the risk incurred by the

investing undertakings and by permitting various

cooperative arrangements between investors and

parties seeking access to diversify the risk of

investment, whilst ensuring that competition in the

market and the principle of non-discrimination are

preserved;

(e) taking due account of the variety of

conditions relating to competition and users that

may exist in Malta;

(f) imposing ex-ante regulatory obligations

only where there is no effective and sustainable

competition and relaxing or lifting such obligations

as soon as that condition is fulfilled; and

(g) taking the utmost account of the

desirability of making regulations technologically

neutral, in particular with regards to those designed

to ensure effective competition.”.

In sub-article (1) of article 5 of the principal Act, for the

words “various communications markets” there shall be substituted

the words “various electronic communications markets”.

Article 7 of the principal Act shall be amended as

follows

(a) in paragraph (b) thereof, for the words “specify;

and” there shall be substituted words “specify;”;

(b) in paragraph (c) thereof, for the words “any

extension thereof.” there shall be substituted the words “any

extension thereof; and”; and

(c) immediately after paragraph (c) thereof, there shall

be added the following new paragraph

“(d) that no person shall carry out any works or perform

any other act, or be entrusted to carry out such works or

perform such act, for the construction, repair, maintenance,

alteration or control of any electronic communications

networks and, or equipment unless he is duly qualified and

possesses such qualifications to carry out such works or

perform such act as may be prescribed in accordance with the

provisions of article 47.”.

Paragraph (d) of article 8 of the principal Act shall be

deleted.

For article 9 of the principal Act, there shall be Substitution of

substituted the following new article

9. The Authority shall, subject to any

“ Market

procedures as may be prescribed under this Act

definition

and in accordance with the principles of competition

analysis.

law, define relevant markets appropriate to national

circumstances, in particular relevant geographic

markets and it shall carry out an analysis of such

relevant markets

Provided that in so doing the Authority

(a) shall take the utmost account

of any relevant recommendations and

guidelines that the European Commission

may issue from time to time in accordance

with Article 15 of the Framework Directive;

and

(b) shall follow the procedures referred

to in Article 4A of the Malta Communications

Authority Act before defining markets that Cap. 418.

differ from those defined in any relevant

recommendation

that

the

European

Commission may publish.”.

Articles 11 and 12 of the principal Act shall be

renumbered as articles 10 and 11 thereof respectively.

Article 10 as renumbered of the principal Act shall be

amended as follows

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

numbering plan for electronic communications services,

and shall control the assignment of all national numbering

resources”, there shall be substituted the words “the national

telephone numbering plan for electronic communication

services, and shall control the allocation and assignment of all

national numbering resources”;

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

management of the national numbering plan” there shall be

substituted the words “the proper management of the national

telephone numbering plan”;

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

elements of the national numbering plan” there shall be

substituted the words “the main elements of the national

telephone numbering plan”;

(d) for subarticle (4) thereof, there shall be substituted

the following

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

practicable, having regard to its objectives and

functions as stated under this Act, support the

harmonisation of specific numbers or numbering

ranges within the European Union where such

harmonisation promotes both the functioning of the

internal market and the development of pan-European

services.”;

(e) in subarticle (6) thereof, for the words “numbers

that have not specifically been allocated” there shall be

substituted the words “right of use of numbers that have not

specifically been allocated”; and

(f) in subarticle (7) thereof, for the words “An

undertaking allocated a range of numbers shall not

discriminate against any other providers” there shall be

substituted the words “An undertaking to which the right

of use of a range of numbers has been granted shall not

discriminate against any other providers”.

For article 11 as renumbered of the principal Act there

shall be substituted the following new article

11. (1) Without prejudice to the European

Electronic Communications Directives, no restrictions

restrictions.

shall be imposed or maintained on the provision of

electronic communications services over electronic

communications networks established by an

undertaking providing electronic communications

services, over infrastructures provided by third

parties, or by means of sharing networks, other

facilities or sites.

(2) No exclusive or special rights for the

establishment and, or the provision of electronic

communications networks, or for the provision of

publicly available electronic communications services

shall be granted or maintained in force.”.

Immediately after article 11 as renumbered of the

principal Act, there shall be inserted the following new article

12. (1) Where an undertaking providing

electronic communications networks has the right at law

sharing of to install facilities on, over or under public or private

property, or may take advantage of a procedure for the

expropriation or use of property, the Authority shall,

associated taking full account of the principle of proportionality, be

facilities. able to impose the sharing of such facilities or property,

including buildings, entries to buildings, building

wiring, masts, antennae, towers and other supporting

constructions however so described, ducts, conduits,

manholes and cabinets.

(2) The Authority shall, as necessary, impose

obligations in relation to the sharing of wiring inside

buildings or up to the first concentration or distribution

point where this is located outside the building, on an

undertaking providing electronic communications

networks which has the right to install facilities on,

over or under public or private property and, or on the

owner of such wiring, where this is justified on the

grounds that duplication of such infrastructure would

be economically inefficient or physically impracticable.

Such sharing or coordination arrangements shall include

rules for apportioning the costs of facility or property

sharing adjusted for risk where appropriate.

(3) The Authority may require undertakings

to provide the necessary information, as requested by it,

to be able to establish a detailed inventory of the nature,

availability and geographical location of the facilities

referred to in subarticle (1) and to make it available to

interested parties.

(4) Measures taken by the Authority

in accordance with this article shall be objective,

transparent, non-discriminatory, and proportionate, and

where relevant, these measures shall be carried out in

coordination with other public authorities.”.

Article 13 of the principal Act shall be amended as

(a) for the words “its objectives as stated in the Malta

Communications Authority Act” there shall be substituted the

words “its objectives as stated in this Act and in the Malta

Communications Authority Act”; and

(b) in paragraph (b) thereof, for the words

“competition; and” there shall be substituted the words

“competition;”; and

(c) paragraph (c) thereof shall be renumbered as

paragraph (d), and immediately before paragraph (d) thereof

as renumbered there shall be inserted the following new

paragraph

“(c)

promote efficient investment and innovation;

and”.

Article 14 of the principal Act shall be amended as

(a) in paragraph (b) of subarticle (1) thereof, for the

words “in Member States” there shall be substituted the words

“in other Member States”;

(b) in subarticle (1) thereof, for the words “Community

law” there shall be substituted the words “European Union

law”;

(c) in paragraph (b) of subarticle (3) thereof, for

the words “to provide public communications networks”

there shall be substituted the words “to provide public

communications networks in accordance with this Act”;

(d) in subarticle (3) thereof, for the words “throughout

the Community.” there shall be substituted the words

“throughout the European Union.”;

(e) in subarticle (4) thereof, for the words “consistent

with obligations relating to access and interconnection

imposed by the Authority” there shall be substituted the words

“consistent with obligations imposed by the Authority”;

(f) in subarticle (5) thereof, for the words “Without

prejudice to information that an undertaking under or by

this Act is required to provide under a general authorisation

for rights of use or for specific obligations”, there shall be

substituted the words “Without prejudice to information that

an undertaking is required to provide under or by this Act”;

and

(g) for subarticle (6) thereof, there shall be substituted

the following

“(6) An undertaking shall not make any

information acquired as referred to in subarticle

(5) available to any other party, including other

subsidiaries or partners of the same undertaking,

howsoever described, in particular where such

information could provide a competitive advantage.”.

In the English text of article 15 of the principal Act, for

the words “twenty fifty million euro” there shall be substituted the

words “fifty million euro”.

In article 16 of the principal Act, for the words

“Community law” there shall be substituted the words “European

Union law”.

In Part II of the principal Act, immediately before article

17 thereof, for the sub-heading “5. Authorisations” there shall be

substituted the words “5. Authorisations and Rights of Use”.

Article 17 of the principal Act shall be amended as

(a) for subarticle (1) thereof, there shall be substituted

the following

“(1) An undertaking shall be entitled to

provide electronic communications services or

to establish, extend or provide electronic

communications networks in accordance with this

Act.”; and

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

subarticles (3) and (4) thereof shall be renumbered as

subarticles (2) and (3) respectively.

In paragraph (a) of subarticle (1) of article 18 of the

principal Act, for the words “of any directives and, or decisions”

there shall be substituted the words “of any decisions”.

Article 19 of the principal Act shall be amended as

(a) in subarticle (2) thereof, for the words “shall be in

such form as the Authority may from time to time determine”

there shall be substituted the words “shall be in such form and

shall contain such information as the Authority may from time

to time determine”;

(b) subarticle (5) shall be renumbered as subarticle (6)

thereof; and

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

be added the following new subarticle

“(5) Undertakings

providing

cross-border

electronic communications services to undertakings

located in several Member States shall not be required

to submit more than one notification per Member State

concerned.”.

Articles 20 to 23 of the principal Act shall be

renumbered as articles 21 to 24 thereof respectively, the sub-

heading “8. Dispute resolution” shall be deleted and article 27 shall

be renumbered as article 25.

Immediately after article 19 of the principal Act there

shall be added the following new article

20. The Authority may, with the approval

“Amendments

of

the

Minister, by order in the Gazette, amend the

and of rights rights, conditions and procedures concerning general

authorisations and rights of use of numbers, provided

that any such amendments may only be made in

objectively justified cases and in a proportionate manner

taking into consideration, where appropriate, the specific

conditions applicable to transferable rights of use for

radio frequencies

Provided that before making any such amendment,

the Authority shall, with the exception of cases where the

proposed amendments are minor and have been agreed

with the holder of the rights or general authorisation,

give notice in such manner as it considers appropriate of

its intention, inviting interested parties, including users

and consumers, to make representations on the proposed

amendments within a period of not less than thirty days,

as may be specified in the notice. The Authority may

in circumstances which it considers to be exceptional,

shorten such period.”.

24 In article 21 as renumbered of the principal Act, for

the words “from any requirement at law to apply for any other

authorisation, licence or permit however so described, or from any

obligation arising from any other law”, there shall be substituted

the words “from any requirement at law to apply for and obtain any

other authorisation, licence or permit however so described or from

any obligation arising from any other law, licence, authorisation or

permit however so described.”.

Fl-artikolu 21 kif enumerat mill-ġdid ta’ l-Att prinċipali,

minflok il-kliem “minn kull ћtieġa skond il-liġi li tapplika gћal

kull awtorizzazzjoni, liċenza jew permessi oћra, ikunu kif ikunu

deskritti, jew minn kull obbligu li joriġina minn kull liġi oћra”,

gћandhom jidћlu l-kliem “minn kull ћtieġa skond il-liġi li tapplika

gћal, u tikseb xi awtorizzazzjoni, liċenza jew permessi oћra, ikunu

kif ikunu deskritti, jew minn kull obbligazzjoni li toriġina minn

kull liġi, liċenza, awtorizzazzjoni jew permessi oћra, ikunu kif

ikunu deskritti.”.

For article 23 as renumbered of the principal Act, there

shall be substituted the following new article

23. (1)

An

undertaking

shall

provide

all

user rights subscribers to a public communications network and,

or to publicly available electronic communications

services, with a contract, and shall provide such services

included. in accordance with such a contract.

(2) The contract referred to in subarticle

(1) shall expressly include such information as may by

regulation be specified by the Minister after consultation

with the Authority, in order to protect the interests of

subscribers and users.

(3) An undertaking referred to in subarticle

(1) shall, not less than thirty days prior to the taking of

effect of any proposed modification to the contractual

terms and conditions of the service, notify in writing all

subscribers to that service with at least

(a) the proposed modification to the

contractual terms and conditions of the service;

(b) the right to withdraw without penalty

from such contract if they do not accept the

modifications; and

(c) any refunds applicable upon withdrawal

from the contract due to such modifications,

including the means by which the subscriber shall,

at no extra cost to him, be refunded any unutilized

advanced payment made.

(4) An undertaking referred to in subarticle

(3) shall notify the Authority in writing, prior to

notification to subscribers, in a timely manner as may be

specified by the Authority, of any proposed modifications

to the contractual terms and conditions of service.

(5) The Authority may, following a written

request to an undertaking, made in accordance with any

requirements that may be laid down by the Authority, in

cases where the proposed modification to the contractual

terms and conditions of the service is manifestly of

benefit to all subscribers to that service, exempt the

undertaking from applying the right referred to in

paragraph (b) of subarticle (3).”.

For article 24 as renumbered of the principal Act, there

shall be substituted the following new article

24. A contract, term or condition for the provision

of an electronic communications service, even if agreed

to by the subscriber or user, shall be null and without

effect to the extent that it is inconsistent with any

provisions made by or under this Act or the terms and

conditions of the authorisation under which the service

conditions .

is provided.”.

Articles 28 to 41 of the principal Act shall be

renumbered as articles 26 to 39 thereof respectively.

In article 33 as renumbered of the principal Act and in

the marginal note thereto, for the words “of article 32” wherever

they occur there shall be substituted the words “of article 30”.

For article 36 as renumbered of the principal Act, there Substitution of article

shall be substituted the following new article

(1)

In this Part, unless the context otherwise

requires

“frequency plan” means the “national radio

frequency plan” as adopted by the Minister and

published in accordance with the provisions of this

Part; and

“general authorisation” means a framework

established by or under this Part laying down the

rights and obligations for the use of radio spectrum,

when the use of the radio spectrum is not subject to

an individual licence.

(2) This Part regulates all radio spectrum,

with the exception of any radio spectrum expressly

regulated under any other law, and identified as such in

the radio frequency plan.”.

30. For article 37 as renumbered of the principal Act, there

shall be substituted the following

Radio frequencies shall only be used in

accordance with a general authorisation issued under

this Act or following explicit authorisation by the

Authority in accordance with this Act, or following

explicit authorisation in accordance with any other law

Provided that the Minister may in writing

authorise any body established by law duly empowered

at law to assign frequencies under the frequency plan,

to depart from the frequency plan. In doing so the

Minister shall give his reasons and notice of such

authorisation shall be made public.”.

31. For article 38 as renumbered of the principal Act, there

shall be substituted the following

(1) The Authority shall, in accordance

ment of radio

with its objectives under this Act, be responsible

for the effective management of the radio frequencies

assigned to it under the said national radio frequency

plan.

(2) Without prejudice to specific criteria

and procedures adopted to grant rights of use of radio

frequencies to providers of radio or television broadcast

content services with a view to pursuing general interest

objectives in conformity with European Union law

(a) no exclusive or special rights of use

of radio frequencies shall be granted for the

provision of electronic communications services;

and

(b) the Authority and the Minister shall

in the exercise of their respective functions with

regard to the allocation of radio spectrum used for

electronic communications services and the issue

of general authorisations or individual rights of use

of such radio frequencies, act in accordance

with objective, transparent, non-discriminatory

and proportionate criteria

Provided that any related procedures used for

the purposes of this paragraph shall be transparent.

(3) In applying the provisions of this article,

the Minister and the Authority shall respect relevant

international agreements, including the ITU Radio

Regulations, and may take public policy considerations

into account.

(4) The Authority shall publish at least once a

year, and make available on request, the assignment of

radio frequencies, assigned to it under the frequency

plan.”.

32. Article 39 as renumbered of the principal Act shall be

amended as follows

(a) in the marginal note thereto, for the words “of

a plan” there shall be substituted the words “of a frequency

plan”;

(b) in subarticle (1) thereof, for the word “plan”

wherever it occurs there shall be substituted the words

“frequency plan”;

(c) in subarticle (2) thereof, for the words “The

Minister shall in drawing up the plan establish the

frequencies” there shall be substituted the words “The

Minister shall in drawing up the frequency plan establish

which frequencies are”; and

(d) subarticle (3) thereof shall be deleted.

33. Article 42 of the principal Act shall be deleted.

34. Articles 43 to 49 of the principal Act shall be

renumbered as articles 46 to 52 thereof.

35. Immediately after article 39 as renumbered of the

principal Act, there shall be added the following new articles

(1) Unless otherwise provided in subarticle

“ Technolo-

(2), all types of technology used for electronic

gy neutral-

communications services may be used in the radio

frequency bands, declared available for electronic

communications services in the frequency plan in

accordance with European Union law.

(2) The Minister, or the Authority with the

approval of the Minister, may, however, provide for

proportionate and non-discriminatory restrictions to the

types of radio network or wireless access technology

used for electronic communications services where this

is necessary to

(a)

avoid harmful interference;

(b) protect

public

health

against

electromagnetic fields;

(c) ensure technical quality of service;

(d)

ensure maximisation of radio frequency

sharing;

(e)

safeguard efficient use of spectrum, or

(f) ensure the fulfilment of a general interest

objective in accordance with article 41.

(1) Unless otherwise provided in subarticles

(2) and (3), all types of electronic communications

services may be provided in the radio frequency bands,

declared available for electronic communications

services in the frequency plan in accordance with

European Union law.

(2) The Minister, or the Authority with the

approval of the Minister, may provide for proportionate

and non-discriminatory restrictions to the types of

electronic communications services to be provided,

including, where necessary, to fulfill a requirement under

the ITU Radio Regulations.

(3) Measures that require an electronic

communications service to be provided in a specific

band available for electronic communications services

shall be justified in order to ensure the fulfilment of a

general interest objective as defined by the Minister in

conformity with European Union law, such as, and not

limited to

(a)

safety of life,

(b) the promotion of social, regional or

territorial cohesion,

(c) the avoidance of inefficient use of radio

frequencies, or

(d) the promotion of cultural and linguistic

diversity and media pluralism, for example by

the provision of radio and television broadcasting

services.

(4) A measure which prohibits the provision

of any other electronic communications service in a

specific band, may only be provided for where justified

by the need to protect safety of life services

Provided that the Minister or the Authority as

the case may be, may exceptionally also extend such

a measure in order to fulfill other general interest

objectives as defined by the Minister in accordance with

European Union law.

(1) The Minister or the Authority as the

of technology

case may be, shall regularly review the necessity of the

restrictions referred to in articles 40 and 41, and shall

make the results of these reviews public.

(2) Articles 40 and 41 shall apply

to spectrum allocated to be used for electronic

communications services, general authorisations issued

and individual rights of use of radio frequencies granted

after the 25 th May 2011.

(3) Spectrum

allocations,

general

authorisations and individual rights of use which existed

before the 25 th May 2011 shall be subject to article 43.

(1) For a period of five years starting

from the 25 th May 2011, holders of rights to use radio

frequencies which were granted before this date and

which will remain valid at least until the 25 th May

2016, may submit an application to the Authority for

a reassessment of the restrictions on their rights in

accordance with articles 40 and 41.

(2) Before adopting its decision, the

Authority shall notify the rights holder of its

reassessment of the restrictions, indicating the extent of

the right after reassessment.

(3) The Authority shall allow a reasonable

time limit for the rights holder to withdraw the

application, if desired. If the rights holder withdraws

the application, the rights shall remain unchanged until

its expiry or until the 25 th May 2016, whichever is the

earlier date.

(4) After the 25 th May 2016 the Authority

shall take all appropriate measures to ensure that articles

40 and 41 apply to all remaining general authorisations,

individual rights of use, and spectrum allocations used

for electronic communications services which existed on

the 25 th May 2011.

(5) In applying this article, the Authority

shall take appropriate measures to promote fair

competition.

(6) Measures adopted in applying this article

do not constitute the granting of new rights of use and

therefore are not subject to the relevant provisions of

Article 5 (2) of the Authorisation Directive.

Without prejudice to the provisions of

this Act and taking into account the relevant national

circumstances, the Authority may lay down rules in

order to prevent spectrum hoarding, in particular by

setting out strict deadlines for the effective exploitation

of the rights of use by the holder of the rights. These

rules shall be established and applied in a proportionate,

non-discriminatory and transparent manner.

(1) An undertaking may transfer or lease

the individual rights to use radio frequencies in the

bands identified in the frequency plan that may be

transferred or leased to other undertakings in accordance

with the conditions attached to such rights of use of

radio frequencies and in accordance with any applicable

legislation

Provided that conditions attached to individual

rights to use radio frequencies shall continue to apply

after the transfer or lease, unless otherwise specified by

the Authority.

(2) Without prejudice to any applicable

legislation, or any procedures that the Authority may

specify, an undertaking shall notify its intention to

transfer rights to use radio frequencies, as well as the

effective transfer thereof to the Authority and shall make

such intention public.

(3) Where radio frequency use has been

harmonised through the application of the Decision

No 676/2002/EC (Radio Spectrum Decision) or other

European Union measures, any such transfer shall

comply with such harmonised use.”.

36. Article 47 as renumbered of the principal Act shall be Amendment of article

amended as follows

(a) in subarticle (1) thereof -

(i) for paragraph (a) thereof, there shall be

substituted the following

“(a) regulate electronic communications

services

and,

or

networks

including

interconnection of networks, collocation of

facilities, carrier pre-selection, access to networks,

rights of way, the transmission or reception

of satellite signals, the maintenance of

and publication, and access to any information

however so described, stipulate universal service

obligations, any matter concerning numbers

including portability, plans and allocation,

any matter concerning e-mail forwarding

or other similar services to ensure fair

competition or for end-user protection

purposes, the obligations of an undertaking

having significant market power, competition and

end-user protection rules including but not

limited to rules relating to the suspension,

termination and renewal of electronic

communications services to end-users,

compensation and refund arrangements,

billing procedures and billing accuracy,

emergency services, harmonised services for

social value, and directory services;”;

(ii) in paragraph (j), for the word “consumers”

there shall be substituted the word “end-users”;

(iii) in paragraph (l), for the word “Community”

there shall be substituted the words “European Union”;

(iv) in paragraph (n), for the word “Community”

there shall be substituted the words “European Union”;

(v) for paragraphs (o) and (p), there shall be

substituted the following

“(o) regulate the allocation, assignment

and use of radio frequencies for electronic

communications networks and, or services,

including the transfer or lease of rights to use radio

frequencies to other undertakings and the procedure

to be followed;

(p) regulate any matter relating to

the regulation, administration, management and

authorisation of radio spectrum, including any

aspect concerning the issue of authorisations,

spectrum trading, the manner in which radio

frequencies and, or apparatus as may be

designated, may be used without the need of

an authorisation, and the fees and conditions

that may be imposed in relation thereto;”;

(vi) paragraph (s) shall be renumbered as

paragraph (u) and immediately after paragraph (r) there

shall be added the following new paragraphs

“(s) provide for any matter relating to the

qualifications that a person may require in order

to carry out any works or perform any other act

relating to construction, repair, maintenance,

alteration or control of any electronic

communications service and, or network,

including the tests to be employed for ascertaining

whether a person possesses these qualifications;

(t) prescribe penalties for criminal offences

against any regulations made under this Act,

including different fines (multa) for different

offences and, or fines (multa) calculated in

accordance with the duration of the commission

of the offence

Provided that any such regulations as may

be made shall not provide for a fine (multa) of

more than twenty five thousand euro (25,000)

or five hundred euro (500) for each day during

which the offence persists;”; and

(b) in subarticle (2) thereof, the words

“empower any other public authority established by

law” shall be substituted with the words “empower

any body or bodies established by law”.

37. In subarticle (1) of article 51 as renumbered of the

principal Act, for the words “article 35(1)(d) or under article 35A”

there shall be substituted the words “article 48(1)(d) or under

article 49”.

38. Articles 50 and 51 of the principal Act shall be deleted.

39. Articles 52 to 54 of the principal Act shall be

renumbered as articles 53 to 55 thereof respectively.

40. For article 53 as renumbered of the principal Act, there

shall be substituted the following

(1) Without prejudice to article 43, the

authorisa- Authority shall bring general authorisations and

individual rights of use already in existence on 31

December 2009 into conformity with any provisions of,

or made under this Act relating to authorisations by 19

December 2011 at the latest.

(2) Notwithstanding subarticle (1) where

the Authority considers that the application of the

said subarticle would result in a reduction of rights or

extension of obligations on a person holding such an

authorisation or right of use already in existence, the

Authority may extend the validity of those authorisations

or rights of use until 30 September 2012, provided

that it considers that the rights of other persons are not

adversely affected thereby. The Authority shall notify

such extension to the European Commission and state

the reasons therefor.”.

41. In subarticle (2) of article 55 as renumbered of

the principal Act, the words “and from the provisions of any

regulations made thereunder” shall be deleted.”.

Part II

Amendment of the Malta Communications

Authority Act

42. (1) This Part amends the Malta Communications

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

Malta Communications Authority Act, hereinafter in this Part

referred to as “the principal Act”.

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

the Minister responsible for communications may by notice in

the Gazette appoint and different dates may be so appointed for

different provisions and different purposes thereof.

43. Article 2 of the principal Act shall be amended as

follows

(a) for the definition “the Act”, there shall be

substituted the following new definition

“ “this Act” means the Malta Communications

Authority Act, and includes any regulations made

thereunder unless the context otherwise requires;”,

and for the words “the Act” wherever they occur

in the principal Act there shall be substituted the words

“this Act”;

(b) immediately after the definition “Authority”, there

shall be inserted the following new definition

“ “BEREC” means the Body of European

Regulators for Electronic Communications;”;

(c) the definition “Community” shall be deleted;

(d) in the definition “decision”, the words “includes

any determination,” shall be substituted with the words

“includes any directive, determination,”;

(e) immediately after the definition “end-user”, there

shall be added the following new definition

“ “European

Electronic

Communications

Directives” means Directive 2002/21/EC of the

European Parliament and of the Council of 7 March

2002 on a common regulatory framework for electronic

communications networks and services (Framework

Directive); Directive 2002/20/EC on the authorisation

of electronic communications networks and services

(Authorisation

Directive),

Directive 2002/19/

EC on access to, and interconnection of, electronic

communications networks and associated facilities

(Access Directive), Directive 2002/22/EC on universal

service and user’s rights relating to electronic

communications networks and services (Universal

Service Directive) and Directive 2002/58/EC of the

European Parliament and of the Council of 12 July

2002 concerning the processing of personal data and the

protection of privacy in the electronic communications

sector (ePrivacy Directive) as may be amended from

time to time;”;

(f) immediately after the definition “financial year”

there shall be added the following new definition

“ “harmful interference” means interference

which endangers the functioning of a radio navigation

service or of other safety services or which otherwise

seriously degrades, obstructs or repeatedly interrupts a

radio communications service operating in accordance

with the applicable international, European Union or

national regulations;”;

(g) immediately after the new definition “harmful

interference” there shall be inserted the following new

definition

“ “Member State” means a Member State of the

European Union;”; and

(h) the definition “person” shall be deleted.

44. For subarticle (6) of article 3 of the principal Act, there

shall be substituted the following

“(6) A member of the Authority may be removed

from office by the Minister if, in the opinion of the

Minister, such member is unfit to continue in office or

has become incapable of properly performing his duties

as a member

Provided that in the event that the Minister removes the

Chairman from office, such removal shall be made public by

no later than the effective date of removal from office. At the

same time, the Minister shall provide the Chairman with a

statement of reasons for his removal

Provided further that a Chairman who is removed

from office shall have the right to request the publication of

the statement of reasons for his removal, in which case the

Minister shall publish the statement.”.

45. Article 4 of the principal Act shall be amended as

follows

(a) in subarticle (3) thereof -

(i) for the words “The Authority shall also –”

there shall be substituted the words “ The Authority shall

also, in accordance with the laws it is entitled to enforce

–”;

(ii) for paragraph (r) there shall be substituted the

following

“(r) promote the interests and rights of

all users in Malta, including disabled end-users,

elderly end-users, and end-users with special

social needs, especially in respect of the prices

charged for, and the quality and variety of the said

services;”; and

(iii) for paragraph (s) there shall be substituted

the following

“(s) perform such other functions,

including functions aimed at promoting the

information society, as may from time to time

be assigned to it by the Minister.”; and

(b) for subarticle (4) thereof, there shall be substituted

the following

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

carry out its functions as established by or under this

Act or any other law in an impartial and transparent

and timely manner and to ensure compliance

therewith, and without prejudice to the generality of

the foregoing, to ensure that persons providing any

services, products, operations and activities in or

from Malta relating to any matter regulated by the

Authority, comply with this Act and with any other

law which the Authority is entitled to enforce, and

with any decisions issued by or under this Act or any

such other law.”.

46. Article 4A of the principal Act shall be amended as

(a) in subarticle (1) thereof -

(i) in paragraph (c), for the words “Community

law” there shall be substituted the words “European

Union law”; and

(ii) for the words “in a market for communications

networks or services,” there shall be substituted the

words “in a market for any communications networks or

services,”;

(b) subarticles (2) and (3) thereof shall be renumbered

as subarticle (3) and (4) thereof respectively; and

(c) immediately before subarticle (3) as renumbered,

there shall be inserted the following new subarticle

“(2) Where the Authority intends to take a

decision on issues related to end-user and, or consumer

rights, in particular where such decision has a significant

impact on the market for any communications networks

and, or services, the Authority shall ensure that in

carrying out the consultation mechanism referred to in

subarticle (1), as far as is appropriate for the purposes of

its functions under this Act or any other legislation the

Authority is entitled to enforce, it shall take into account

the views of end-users and of consumers in particular

disabled end-users, manufacturers and undertakings that

provide communications networks and, or services.”.

47. In subarticle (10) of article 5 of the principal Act, for

the words “of any decision or directive made by the Authority”

there shall be substituted the words “of any decision made by the

Authority”.

48. For subarticle (1) of article 6 of the principal Act, there

shall be substituted the following

“(1) The Minister may in relation to matters that

appear to him to affect the public interest, from time

to time give to the Authority directions in writing of a

general character, not inconsistent with the provisions

of this Act, on the policy to be followed in the carrying

out of the functions vested in the Authority by or under

this Act, and the Authority shall, as soon as may be, give

effect to all such directions

Provided that the Authority shall act independently and

shall not seek or take instructions from any other body on

matters related to ex-ante market regulation and the resolution

of disputes between undertakings in accordance with articles

43 and 44A.”.

49. In the English text of article 8 of the principal Act shall

be amended as follows

(a) in subarticle (4) thereof, for the words “be reason

of the existence” shall be substituted with words “by reason

of the existence”; and

(b) in subarticle (5) thereof, for the words “the

provisions of subarticle of article 3(8)” there shall be

substituted the words “the provisions of article 3(8)”.

50. For subarticle (3) of article 14 of the principal Act there

shall be substituted the following

“(3) The Authority shall also be paid by Government out

of the Consolidated Fund such sums as Parliament may from

time to time authorise to be appropriated to meet the costs

of specified works to be continued or otherwise carried out

by the Authority

Provided that any subvention received from Government

shall be exempted from any liability for the payment of

income tax and duty on documents under any law for the time

being.”.

51. Article 31 of the principal Act shall be amended as

(a) for subarticle (1) thereof, there shall be substituted

the following

“(1) Without prejudice to any other

provisions under this Act or any other law which the

Authority is entitled to enforce, the Authority may take

the following measures in respect of any person who

infringes any provision of this Act or of any other

law which the Authority is entitled to enforce, or who

fails to comply with any decision given by the Authority

or with any authorisation condition

(a) the imposition of an administrative fine

in accordance with the provisions of this article

and of articles 32 and 33;

(b) order the cessation of any act or

omission which is in breach;

(c) order the delay of a service or bundle

of services which if continued, may result

in significant harm to competition, pending

compliance with access obligations imposed

following a market analysis carried out in

accordance with the Electronic Communications

(Regulation) Act.”;

(b) subarticle (2) shall be renumbered as subarticle (3)

thereof; and

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

be added the following new subarticle

“(2) In cases where the Authority considers

that a person has seriously and repeatedly infringed

the provisions of this Act or of any other law which

the Authority is entitled to enforce, or of any decision

of the Authority or of any authorisation condition,

the Authority may withdraw or suspend any related

authorisation granted by or under this Act or any

other law which the Authority is entitled to enforce.”.

52. Article 32 of the principal Act shall be amended as

(a) for subarticles (1) to (4) thereof, there shall be

substituted the following subarticles

“(1) The Authority shall before proceeding to

take any of the measures under article 31 write to the

person concerned, warning him of the measure that may

be taken and the specific reason why it may be taken,

requiring him to cease or rectify his acts or omissions

and, or to make his submissions thereto within such

period not being less than fifteen days which period,

without prejudice to the provisions of subarticle (4),

may be abridged if the Authority considers that the

continuance of the infringement impacts negatively

the effective exercise by the Authority of its regulatory

functions and, or warrants the immediate intervention of

the Authority

Provided that where the measure is an

administrative fine the person concerned shall also be

informed of the amount of the fine

Provided further that when issuing a warning under

this subarticle, the Authority may impose such conditions

as it may consider reasonable in the circumstances.

(2) If the person concerned remedies the

infringement with the period established by the

Authority in accordance with subarticle (1), and agrees

in writing to abide with any condition that the Authority

may impose, the Authority may at its discretion desist

from proceeding any further, this without prejudice to

any regulatory measures that may have already been

imposed.

(3) If after the lapse of the period mentioned

in subarticle (1), the Authority considers that the

person concerned has not given any valid reasons to

demonstrate why no measure should be taken against

him, the Authority shall notify the person concerned

in writing, specifying the nature of the infringement,

stating the measure being taken, and if the measure is an

administrative fine, stating the amount of the fine being

imposed.

(4) Notwithstanding the provisions of subarticle

(1), where the Authority has prima facie evidence that

the infringement –

(a) represents an immediate and serious

threat to public safety, public security or public

health; or

(b) creates or may create serious economic

or operational problems for other providers or

users of communications services or networks, or

other users of radio spectrum; or

(c) would result in significant harm to

competition in the electronic communications

market, pending compliance with access

obligations imposed following a market analysis

carried out in accordance with the Electronic

Communications (Regulation) Act or any

regulations made thereunder,

the Authority may take urgent interim measures

to remedy the situation in advance of reaching a final

decision, including ordering the immediate cessation

of the act or omission giving cause to the infringement,

requiring the cessation or delay of provision of a

service or bundle of services, and the imposition of

administrative fines

Provided that the person against whom such

measures are contemplated, shall, thereafter, be given a

reasonable opportunity to state his view and propose any

remedies

Provided further that the interim measures shall

be valid for a maximum of three months, subject to

extension for a further period of three months, in

circumstances where enforcement procedures have not

been completed.”; and

(d) in subarticle (5) thereof, for the words

“The notice” there shall be substituted the words

“The notification”.

53. In subarticle (1) of article 33 of the principal Act,

immediately after the first proviso thereto there shall be added the

following new proviso

“Provided further that any daily fine imposed may be

back dated to the date of the commission or commencement

of the infringement.”.

In paragraph (b) of subarticle (1) of article 34A of the

principal Act, for the words “a Member State of the European

Union” wherever they occur there shall be substituted the words “a

Member State”.

Article 37 of the principal Act shall be amended as

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

decision or a directive” there shall be substituted the words

“from a decision”;

(b) in the proviso to subarticle (2) thereof, for the

words “the decision or directive” there shall be substituted the

words “the decision”; and

(c) in paragraph (a) in subarticle (3) thereof, for the

words “from a decision or directive” there shall be substituted

the words “from a decision”.

In article 42 of the principal Act, the words “or the

directive” wherever they occur shall be deleted.

Immediately after article 42 of the principal Act there

shall be added the following new article

“ 42A. The Authority shall collect information

on the general subject matter of appeals, the number

of requests for appeal, the duration of the appeal

proceedings and the number of decisions to grant interim

measures. The Authority shall provide such information

to the European Commission and to BEREC after a

reasoned request from either.”.

Article 43 of the principal Act shall be amended as

(a) for subarticle (1) thereof, there shall be substituted

the following

“(1) Unless otherwise provided in any other

law, in the event of a dispute occurring between

undertakings within the same communications sector

in connection with any obligations arising under any

law, decision or authorisation condition which the

Authority is entitled to enforce, the Authority shall,

at the request of any party to the dispute, investigate

the matter and shall issue a binding decision to resolve

the dispute in the shortest possible timeframe, and in

any case within four months from the date on which the

dispute was notified to it

Provided that such period of four months may

be extended in circumstances which the Authority

considers exceptional.”;

(b) subarticle (2) shall be renumbered as subarticle

(2A) thereof;

(c) immediately before subarticle (2A) thereof

as renumbered there shall be inserted the following new

subarticle

“(2) The Authority may of its own initiative,

investigate any suspected breach of any obligations

arising under any law, decision or authorisation

condition which it is entitled to enforce.”;

(d) for subarticle (2A) thereof as renumbered, there

shall be substituted the following

“(2A) The Authority may decide not to initiate

an investigation referred to in subarticle (1) and, or in

subarticle (2) where it is satisfied that other means of

resolving the dispute in a timely manner are available

to the parties or if legal proceedings in relation to the

dispute have been initiated by any party to the dispute

Provided that where the Authority decides not to

initiate an investigation it shall inform the parties of

such a decision as soon as possible thereafter.”; and

(e) in the proviso to subarticle (6) thereof, for the

words “a breach of this Act or any other law which the

Authority is entitled to enforce” there shall be substituted

the words “a breach of this Act, any other law, decision or

authorisation condition which the Authority is entitled to

enforce”.

Article 44 of the principal Act shall be amended as

(a) in subarticle (2) thereof, for the words “be

transparent, simple, inexpensive and conducive to a prompt

and fair settlement of the dispute,” there shall be substituted

with the words “be transparent, non-discriminatory, simple,

inexpensive and conducive to a prompt and fair settlement of

the dispute,”; and

(b) subarticle (8) thereof shall be deleted.

Immediately after article 44 of the principal Act, there

shall be added the following new article

44A. (1)

In the event of a dispute arising

under any law or decision which the Authority is entitled

to enforce, involving persons enjoying authorisations

in more than one Member State, a person may

request the Authority to co-ordinate its efforts with

any relevant regulatory authority in another Member

State with a view to bringing about a resolution of the

dispute.

(2) In addition to subarticle (1), a dispute

arising under the Electronic Communications

(Regulation) Act or the European Electronic

Communications Directives between parties in different

Member States, where the dispute lies within the

competence of the Authority and national regulatory

authorities from other Member States, that dispute shall

be subject to the following procedure

(a) any party may refer such a dispute to

the Authority or to the other national regulatory

authorities concerned. The Authority shall

coordinate with the other national regulatory

authorities, and may consult with BEREC in order

to bring about a consistent resolution of this dispute

in accordance with the objectives set out in Article

4 of the Electronic Communications (Regulations)

Act

Provided that where the Authority makes

a determination for the purposes of resolving a

dispute under this article, the provisions of article

43 shall apply. In doing so the Authority may

request BEREC to give an opinion as to the action

to be taken in accordance with the provisions of the

European Electronic Communications Directives to

resolve the dispute. Where such a request has been

made to BEREC, the Authority shall wait for the

opinion of BEREC before taking action to resolve

the dispute. This shall not preclude the Authority

from taking urgent measures as necessary

Provided further that any obligations imposed

on an undertaking by the Authority in resolving a

dispute shall respect the provisions of the European

Electronic Communications Directives and shall

take the utmost account of the opinion adopted by

BEREC.

(b) the Authority may enter into

arrangements with other national regulatory

authorities whereby they may jointly decline

to resolve a dispute where other mechanisms,

including mediation, exist and would better

contribute to resolution of the dispute in a timely

manner in accordance with the provisions of Article

8 of the Framework Directive. Such arrangements

shall include provision for the Authority or the

other national regulatory authorities to inform the

parties without delay where they agree to jointly

decline to resolve the dispute

Provided that if after four months the dispute

is not resolved, where the dispute has not been

brought before the courts by the party seeking

redress, and if either party requests it, the Authority

shall coordinate with the other national regulatory

authorities in order to bring about a resolution

of the dispute in accordance with Article 8 of

the Framework Directive, and taking the utmost

account of any opinion adopted by BEREC in

relation to the dispute in question.

(3) The procedure referred to in paragraph (a) of

subarticle (2) does not preclude a party from bringing an

action before the courts.”.

PART III

AMENDMENT OF THE UTILITIES AND SERVICES

(REGULATION OF CERTAIN WORKS) ACT

(1) This Part amends the Utilities and Services

(Regulation of Certain Works) Act, and it shall be read and

construed as one with the Utilities and Services (Regulation of

Certain Works) Act, hereinafter in this Part referred to as “the

principal Act”.

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

the Minister responsible for communications may by notice in

the Gazette appoint and different dates may be so appointed for

different provisions and different purposes thereof.

For paragraph (a) of subarticle (10) of article 4 of the

principal Act there shall be substituted the following

“(a) act on the basis of simple, efficient, transparent and

publicly available procedures, applied without discrimination

and without delay, and shall in any case make a decision

within six months from the application date;”.

PART IV

AMENDMENT OF THE CONSUMER AFFAIRS ACT

(1) This Part amends the Consumer Affairs, and it

shall be read and construed as one with the Consumer Affairs Act,

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

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

the Minister responsible for Consumer Affairs may by notice in

the Gazette appoint and different dates may be so appointed for

different provisions and different purposes thereof.

Article 23 of the principal Act shall be amended as

(a) subarticles (5) and (6) thereof shall be renumbered

as subarticles (6) and (7); and

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

be added the following new subarticle

“(5) Where the Director General is in receipt of

a claim referred to him by the Malta Communications

Authority where such a claim was submitted to that

Authority by an aggrieved end-user in relation to a

communications service however so described falling

within the remit of the Authority, then the Director

General shall act on the basis of the claim forwarded

to him by the Authority without the need of requiring

the end-user concerned to submit the claim again to the

Director General

Provided that for the purposes of this subarticle,

“communications service” means any communications

service as is regulated in accordance with the provisions

of the Malta Communications Authority Act.”.

Passed by the House of Representatives at Sitting No. 360 of 8th June, 2011.

M ichael F rendo

Speaker

P auline A bela

Clerk to the House of Representatives

€3.96