ACT No. XX of 2013 AN ACT to make provision with respect to company service providers and to provide for matters ancillary or incidental thereto, and to amend various financial services laws.

I assent.

G EORGE A BELA

(L.S.)

President

24th December, 2013

ACT No. XX of 2013

AN ACT to make provision with respect to company service

providers and to provide for matters ancillary or incidental thereto,

and to amend various financial services laws.

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

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

scope.

Providers Act, 2013.

(2) The purpose of this Act is to implement Article 36 of

Directive 2005/60/EC of the European Parliament and of the Council

of 29 October 2005 on the prevention of the use of the financial

system for the purpose of money laundering and terrorist financing, in

so far as the said article applies to company service providers.

(3) For the purposes of Article 36 of Directive 2005/60/EC

referred to in sub-article (2), the Malta Financial Services Authority

established in terms of article 3 of the Malta Financial Services Cap. 330.

Authority Act shall be the competent authority responsible for the

registration and supervision of company service providers.

(1)

In this Act, unless the context otherwise requires

"approved jurisdiction" means an EEA State or an EU Member

State or any other jurisdiction which has an equal or comparable level

of regulation regarding company service providers to that in Malta;

"the Authority" means the Malta Financial Services Authority

established in terms of the Malta Financial Services Authority Act;

"company service provider" means any natural or legal person

which, by way of business, provides any of the following services to

third parties

(a)

formation of companies or other legal entities;

(b) acting as or arranging for another person to act as

director or secretary of a company, a partner in a partnership or

in a similar position in relation to other legal entities;

(c)

provision of a registered office, a business

correspondence or administrative address and other related

services for a company, a partnership or any other legal entity;

"Minister" means the Minister responsible for finance;

"operating in or from Malta" includes the existence of an office,

branch, or other centre of professional or commercial activities of a

regular nature in Malta, and does not include one or more

unconnected and sporadic acts;

"overseas regulatory authority" means an authority in any

country or territory outside Malta which exercises any regulatory or

supervisory function in relation to financial services corresponding to

a function of the Authority as defined in the Malta Financial Services

Authority Act;

"prescribed" means prescribed by regulations made under this

Act;

"registered person" means a person in relation to whom a

registration to act as a company service provider has been issued by

the Authority in terms of this Act.

(2) Any reference in this Act to any law, or provision thereof,

shall be construed as a reference to that law or provision as from time

to time in force, and shall include a reference to any enactment

replacing such law or provision, and to any subsidiary legislation

made thereunder.

(3) Words and expressions used in this Act with reference to

any other law shall, so far as necessary to give effect to this Act and

consistently with the provisions thereof, have the same meaning as

they have in the law with reference to which they are used in the Act.

(4) In this Act and in any regulations made thereunder, if there

is any conflict between the English and Maltese text, the English text

shall prevail.

(1) Any person resident or operating in or from Malta Requirement of

who acts as a company service provider by way of business, shall registration

company

apply for registration with the Authority in terms of this Act

service

providers.

Provided that the following persons shall not be required to

be registered with the Authority in terms of this Act

(a)

a person in possession of a warrant, or equivalent, to

carry out the profession of advocate, notary public, legal

procurator or certified public accountant; and

(b) a person authorised to act as a trustee or to provide

other fiduciary duties in terms of the Trusts and Trustees Act.

(2) A person in possession of another licence, authorisation or

recognition in terms of the Investment Services Act who intends Cap. 370.

providing company services by way of business shall apply for

registration and, in such case, the Authority shall consider any due

diligence process already carried out by it.

(3) The persons referred to in sub-article (1)(a) and (b) shall

notify the Financial Intelligence Analysis Unit established under the

Prevention of Money Laundering Act, that they are acting as Cap. 373.

company service providers by way of business and that they are not

required to register with the Authority under this Act.

(4) In the event of reasonable doubt as to whether the carrying

out of a particular activity would be subject to registration in terms of

this Act, the matter shall be conclusively determined by the

Authority.

(5) (a)

Any person having a licence or registration to

provide company service, issued by the relevant regulatory authority

in an approved jurisdiction, shall not be subject to registration under

this Act, provided that such person notifies the Authority, in writing,

of its intention to provide company service in Malta at least forty-five

days prior to commencing such activities in Malta and that such

person receives from the Authority a confirmation in writing that it

does not object thereto.

(b) A notification under this sub-article shall outline the

proposed activities and shall be accompanied by such information as

may be required by the Authority from time to time.

(c)

To the extent that the Authority lays down any

restrictions or conditions for such activities, on initial response to a

notification or at any other time, such restrictions and conditions shall

come into effect as stated in the response or by subsequent notice of

the Authority.

An application for registration as a company service

provider in terms of article 3 shall be made to the Authority and shall

(a)

contain or be accompanied by such information and

particulars and be in such form as the Authority may require;

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

by the Authority;

(c)

indicate the address in Malta for service on the

applicant for registration, of any notice or other document

required or authorised to be served on him in terms of this Act;

and

(d) be accompanied by a non-refundable application

fee, as may be prescribed, irrespective of whether the

registration is granted or not by the Authority.

(1) The Authority may register or refuse an application

for registration made under this Act. Such registration may be general

or may be restricted to particular specified activities. The Authority

shall not, without prejudice to article 3, grant a registration applied

for under this Act unless it is satisfied that

(a)

the applicant is a fit and proper person to provide the

services concerned and that the applicant will comply with and

observe the requirements of this Act and any rules made

thereunder and which are applicable to him;

(b) where the applicant is a natural person, such person

is resident or operating in Malta;

(c)

where the applicant is a company or other type of

legal entity

(i) its objects include acting as company service

provider and carrying on activities ancillary or incidental

thereto, and do not include objects which are not

compatible with the services of a company service

provider;

(ii) its actual activities are compatible with its

objects in terms of sub-paragraph (i);

(iii) the directors of the company are not less than

two in number and are individuals who are fit and proper

persons;

(iv) every person who directly or indirectly owns

or controls 25% or more of the shares or voting rights in

the company, or otherwise exercises control over the

management of the company, is a fit and proper person;

(v) the name of the company is not inconsistent

with its activities as outlined in sub-paragraphs (i) and (ii);

and

(vi) where the company is not formed and

registered in Malta, it is formed, constituted or

incorporated in a reputable jurisdiction. For the purposes

of this sub-paragraph, reputable jurisdiction shall have the

meaning assigned to it in the Prevention of Money S.L. 373.01.

Laundering and Funding of Terrorism Regulations.

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

registration under this Act, the Authority shall, in particular, have

regard to

(a)

the protection of investors and the general public;

(b) the protection of the reputation of Malta taking into

account Malta’s international commitments;

(c)

the promotion of competition and choice.

(3) In granting registration, the Authority may subject the

applicant to such conditions as it may deem appropriate. After having

granted registration, the Authority may, from time to time, vary or

revoke any condition so imposed or otherwise impose new

conditions.

(4) The Authority shall notify any applicant of its decision

whether to grant or refuse registration applied for, within six months

from the receipt of a complete application, accompanied by the

prescribed application fee and made in accordance with the applicable

provisions of this Act and any rules made thereunder.

(5) Any person to whom a registration has been granted in

terms of this Act shall be subject to a registration fee as may be

prescribed, which is payable on the date on which such registration is

granted and, thereafter, to a supervisory fee, as may be prescribed,

which is payable annually upon the anniversary of the date of such

registration.

(6) A register of all company service providers to whom

registration has been granted in terms of this Act shall be established

by the Authority. The register shall be publicly available on the

Authority’s website and shall indicate the names of the persons to

whom such registration has been granted, as well as their contact

details, and it shall be updated on a regular basis.

(7) A company service provider shall notify the Authority of

any change or circumstance which would have a bearing upon its

status as a registered person and, in the case of any change in its

charter, statute, memorandum or articles of association or other

instrument constituting the company, or any change of its directors or

members, such changes shall not be effective until they are notified

and approved by the Authority.

(1) The Authority may, at any time, cancel a registration

granted in terms of this Act where

(a)

the registered person is no longer deemed to be a fit

and proper person;

(b) the registered person has contravened any of the

provisions of this Act or any rules made thereunder or has failed

to satisfy or comply with any obligation or condition to which

such registered person or the registration is subject by virtue of

this Act and any rules issued thereunder;

(c)

the registered person or someone acting on behalf of

such registered person has knowingly supplied the Authority

with information that is false, inaccurate or misleading;

(d) the registered person has ceased to act as a company

service provider;

(e)

the cancellation of such registration is considered

desirable for the protection of the general public or the

reputation of Malta;

(f)

the registered person has so requested; or

(g)

there are other circumstances under which the

Authority would have been precluded from granting registration

under this Act or where the Authority would have otherwise

refused the granting of such registration.

(2) The Authority shall make public the fact that the

registration of a company service provider has been cancelled.

(3) Any person whose registration has been cancelled shall,

within sixty days from the date of the cancellation of the registration,

ensure that the services he had been providing to companies or other

legal persons in terms of its registration are transferred to another

person which is duly registered in terms of this Act.

(1)

Where the Authority intends -

Notification of

proposed refusal

or cancellation

(a)

to vary any condition to which the registration is

of registration.

subject or to impose a new condition thereon; or

(b) to refuse an application for the registration or to

cancel a registration,

it shall give the applicant or the registered person, as the case may be,

a notice in writing of this intention, setting out the reasons for such

decision.

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

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

after receipt thereof as may be stated in such notice, being a period of

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

representations in writing to the Authority giving reasons why the

proposed decision should not be taken, and the Authority shall

consider any representation so made before arriving at a decision.

(3) The Authority shall, as soon as practicable, notify its final

decision in writing to the applicant or the registered person, as the

case may be.

(1) The Authority may issue rules applicable to Power of the

company service providers as may be required, for the carrying into Authority

issue rules.

effect of this Act and may, in particular, but without prejudice to the

generality of the foregoing, by such rules

(a)

lay down requirements, conditions and criteria for

the carrying out of activities by company service providers;

(b) lay down the conduct, duties and obligations of

company service providers;

(c)

lay down the responsibilities of company service

providers towards the Authority and provide for the form of

applications, returns, statements or notices to be made or given

to the Authority;

(d) lay down the criteria which the Authority shall take

into account when determining whether a person is a fit and

proper person for the purpose of this Act, including an

indication of the type and nature of academic qualifications and

experience as well as the additional areas of expertise which

would be acceptable to the Authority when determining whether

a person qualifies to be a fit and proper person;

(e)

lay down the criteria as to when a person shall be

deemed by the Authority to be carrying on the activities of a

company service provider by way of business;

(f)

provide for any other matters as the Authority may

consider appropriate in relation to company service providers

and the conduct of their activities.

(2) Such rules shall be binding on company service providers.

(1) Where the Authority is satisfied that a registered

person’s conduct amounts to a breach of any of the provisions of this

Act or of the rules issued thereunder, including failure to cooperate in

an investigation, the Authority may, by notice in writing and without

recourse to a court hearing, impose on the registered person and, or

any other person, as the case may be, an administrative penalty which

may not exceed twenty-five thousand euro (€25,000) for each

infringement or failure to comply, as the case may be.

(2) An administrative penalty imposed in terms of sub-article

(1) may be imposed in the form of a fixed penalty, a daily penalty or

both

Provided that when an administrative penalty in terms of

sub-article (1) is imposed on a daily cumulative basis, such

accumulated penalty shall not exceed twenty-five thousand euro

(€25,000).

(3) The imposition by the 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.

(4) The Authority shall, by means of a public statement,

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

the provision of this Act or the rules, and the penalty or

administrative measure imposed.

REGULATORY AND INVESTIGATIVE POWERS

(1) Notwithstanding any other provision of this Act, the Power to require

Authority may, by notice in writing, require any person who is or who information.

was acting, or who appears to be or to have been acting, as a company

service provider or who was providing services which require

registration according to this Act, and any other person who appears

to be in possession of relevant information, to do all or any of the

following

(a)

to furnish to the 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 such

activities as aforesaid;

(b) to furnish to the Authority any information or

documentation aforesaid, verified in such manner as it may

specify;

(c)

to attend before the 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 activities as aforesaid.

(2) The Authority may take 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 Authority

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

documentation is, and the 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) Without prejudice to that provided in article 642(1) of the

Criminal Code and in article 588(1) of the Code of Organization and Cap. 9.

Civil Procedure, the provisions of this article shall apply to all

information or documentation, notwithstanding the provisions of the Cap. 377.

Professional Secrecy Act.

(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 Authority has appointed a person under sub-

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

functions in relation to such appointment, have all the powers

conferred on the Authority by this article and a requirement made by

such appointed person shall be deemed to be and have the same force

and effect as a requirement of the Authority.

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

it by this Act, the Authority may, whenever it deems it necessary,

give, by notice in writing, such directives as it may deem appropriate

in the circumstances. Any person 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.

(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 that any person having functions of a

company service provider be removed or replaced by another

person acceptable to the Authority;

(c)

require a company service provider 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

registered company service provider.

(3) 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.

(4) Where the 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.

(1) In relation to company service providers, the Exchange of

provisions of article 17 of the Malta Financial Services Authority Act information

collaboration.

shall apply mutatis mutandis.

(2) The Authority may exercise the powers granted to it by

virtue of this Act at the request of, or for the purposes of, assisting an

overseas regulatory authority

(a)

where the assistance is required by the overseas

regulatory authority for the purposes 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 under a

memorandum of understanding concluded with the Authority.

(1) Any officer, employee or agent of the Authority, on Right of entry.

producing, if required, evidence of his authority, may enter premises

occupied by a person on whom a notice has been served under this

Act for the purpose of obtaining the information or documents

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

investigation, and of exercising any of the powers conferred upon it.

(2) Where any officer, employee or agent of the 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, even though a notice in terms of sub-

article (1) has not been served, on producing, if required, evidence of

his authority, enter any premises referred to in sub-article (1) for the

purpose of obtaining any information or documents specified in the

authority, 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 Authority may request the assistance of the

Commissioner of Police, who may 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 Minister may, on the advice of the Authority, Power to make

make regulations for the better carrying out of any of the provisions regulations.

of this Act, and may, in particular, but without prejudice to the

generality of the foregoing, by any such regulations

(a)

further regulate the activities of company service

providers as well as the services provided and activities carried

on or in conjunction therewith or in relation thereto, providing

for any matter deemed expedient;

(b) exempt any activities or classes of persons from the

requirements of articles 3 and 4 and impose conditions deemed

fit for eligibility for exemption;

(c)

provide for and regulate the payment by any person,

as the case may be, of application, registration or supervisory

fees and such other charges payable to the Authority in respect

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

regulations made under this article, as may be prescribed;

(d) transpose, implement and give effect to the

provisions and requirements of Directives, Regulations and any

other legislative measures of the European Union requiring

transposition and, or implementation, as they may be amended

from time to time, including any implementing measures that

have been or may be issued thereunder relating to corporate

service providers and others as may be specified therein or to

any other matter falling within the terms of this Act;

(e)

provide that any provision in any other law shall not

apply to matters falling under the regulations;

(f)

prescribe any matter that may be or is to be

prescribed.

(2) Regulations made under the provisions of this Act may be

made in the English language only.

SANCTIONS AND APPEALS

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

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

with any registration, condition, obligation, requirement, directive or

order 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 rules or regulations made

thereunder, or any condition, obligation, requirement, directive or

order 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 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.

(4) Any person who intentionally obstructs a person exercising

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

(5) Any person who acts or purports to act as a company

service provider in Malta without being registered to do so by the

Authority, when so required in terms of this Act, shall be guilty of an

offence.

(6) Any person who is guilty of an offence under sub-articles

(1), (2), (3), (4) and, or (5) and saving any higher punishment which

may be provided under any other law, shall be liable, on conviction,

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

euro (€466,000) or to a term of imprisonment not exceeding four

years, or to both such fine and imprisonment.

(7) Where an offence in terms of sub-articles (1) to (5) is

committed by a body or other association of persons, be it corporate

or unincorporated, every person who at the time of the commission of

the offence was a director, manager or other similar officer of such

body or association, or was purporting to act in any such capacity,

shall be guilty of that offence, unless he proves that the offence was

committed without his knowledge and that he exercised all due

diligence to prevent the commission of such offence.

(8) Without prejudice to sub-article (7), where the offence is

committed by a body or other association of persons, be it corporate

or unincorporated, or by a person within and for the benefit of that

body or other association of persons, such body or association, these

shall also be liable to an administrative penalty which may not exceed

twenty-five thousand euro (€25,000).

(1)

In this article, the Financial Services Tribunal Appeals.

means the tribunal established under article 21 of the Malta Financial Cap. 330.

Services Authority Act.

(2) Subject to the provisions of this Act, an appeal shall lie to

the Financial Services Tribunal with respect to

(a)

any failure to inform an applicant or a registered

company service provider of the refusal of its application or of

the cancellation of its registration in terms of article 7;

(b) any administrative penalty imposed under article 9

and article 15(8);

(c)

any refusal of an application for registration or

cancellation of registration in terms of articles 5 and 6;

(d) any directive given under article 11 or under article

16(2)(b) of the Malta Financial Services Authority Act;

(e)

the variation of any condition or the imposition of

any new condition in terms of article 7.

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

Services Authority Act shall apply mutatis mutandis to appeals that

may be brought before the Financial Services Tribunal in terms of this

article.

DISQUALIFICATION AS A COMPANY SERVICE PROVIDER

A person shall not qualify for registration as a company

service provider if such person

(a)

is subject to any of the disqualifications under

article 142(1) of the Companies Act;

(b) has been convicted of any of the offences under the

Malta Financial Services Authority Act, the Investment

Services Act, the Banking Act, the Financial Institutions Act,

the Insurance Intermediaries Act, the Financial Markets Act, the

Insurance Business Act, the Prevention of Financial Markets

Abuse Act, the Prevention of Money Laundering Act, the Trusts

and Trustees Act, and any regulations made thereunder;

(c)

is a minor; or

(d) is subject to a disqualification order under article

320 of the Companies Act.

TRANSITORY PROVISIONS

(1) Any person who, on the date of the coming into

force of this Act, is carrying out the services of a company service

provider within the meaning of this Act, shall, within three months

from the date of coming into force of this Act, apply to the Authority

for registration in terms of article 4.

(2) The Authority shall accept all the applications referred to

in sub-article (1) and shall process the said applications within six

months from the receipt of a complete application, including receipt

of all supporting documentation and fees as may be required by the

Authority in processing such application.

PART II

AMENDMENTS TO THE MALTA FINANCIAL SERVICES

AUTHORITY ACT

This Part amends and shall be read and construed as one Amendments to

with the Malta Financial Services Authority Act, hereinafter in this the

Financial

Part referred to as "the principal Act".

Services

Authority Act.

In sub-article (2) of article 4 of the principal Act, for the Amendment of

words "international organisations and other entities", there shall be article

principal Act.

substituted the words "international organisations, with the European

Securities and Markets Authority (ESMA), the European Banking

Authority (EBA) and colleges of supervisors, the European Insurance

and Occupational Pensions Authority (EIOPA), the European

Systemic Risk Board (ESRB) and other entities".

Immediately after sub-paragraph (ii) of paragraph (a) of Amendment of

sub-article (2) of article 16 of the principal Act, there shall be added article

principal Act.

the following new proviso

"Provided that such Rules shall be binding on licence

holders and others as may be specified therein;".

Article 17 of the principal Act shall be amended as Amendment of

article 17 of the

follows

principal Act.

(a)

in sub-article (2) thereof

(i) paragraph (b) thereof shall be renumbered as

paragraph (c); and

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

shall be added the following new paragraph

"(b) local or overseas enforcement or

regulatory authorities, bodies or other entities, or a

network or grouping comprising such local or

overseas enforcement or regulatory authorities,

bodies or other entities, or both, for the purpose of

preventing, detecting, investigating or prosecuting

the commission of acts that amount to or are likely

to amount to a criminal offence under any law or to

an offence or breach of a regulatory nature,

whether in Malta or overseas;";

(b) sub-article (3) thereof shall be renumbered as sub-

article (4);

(c)

immediately after sub-article (2) thereof, there shall

be added the following new sub-article

"(3) The obligation of professional secrecy shall

not prevent the Authority from exchanging or transmitting

confidential information to the European Securities and

Markets Authority (ESMA), the European Banking

Authority (EBA) and colleges of supervisors, to the

European Insurance and Occupational Pensions Authority

(EIOPA), or to the European Systemic Risk Board (ESRB),

subject to conditions and restrictions emanating from

European Union legislation."; and

(d) in sub-article (4) thereof, as renumbered, for the

words "with overseas regulatory authorities shall be treated as

confidential" there shall be substituted the words "with overseas

regulatory authorities or other bodies as provided for in this

article shall be treated as confidential".

Article 18 of the principal Act shall be amended as

follows

(a)

for the marginal note "Communications with the

Central Bank of Malta." there shall be substituted the words

"Communications with the Central Bank of Malta and other

bodies."; and

(b) in sub-article (2) thereof, for the words "disclose

information to overseas central banks and other authorities

responsible for monetary policy" there shall be substituted the

words "disclose information to overseas central banks, the

European System of Central Banks, the European Central Bank

and other authorities responsible for monetary policy".

PART III

AMENDMENTS TO THE FINANCIAL MARKETS ACT

This Part amends and shall be read and construed as one Amendments to

with the Financial Markets Act, hereinafter in this Part referred to as the

Markets Act.

"the principal Act".

Sub-article (1) of article 2 of the principal Act shall be Amendment of

article 2 of the

amended as follows

principal Act.

(a)

immediately after the definition "EEA State" there

shall be added the following new definitions

" "ESMA" means the European Securities and

Markets Authority established by Regulation (EU) No

1095/2010 of the European Parliament and of the Council

of 24 November 2010;

"ESRB" means the European Systemic Risk Board

established by Regulation (EU) No 1092/2010 of the

European Parliament and of the Council of 24 November

2010 on European Union macro-prudential oversight of the

financial system and establishing a European Systemic

Risk Board;"; and

(b) immediately after the definition "overseas

regulatory authority" there shall be added the following new

definition

" "Prospectus Directive" means Directive 2003/71/

EC of the European Parliament and of the Council of 4

November 2003 on the prospectus to be published when

securities are offered to the public or admitted to trading

and amending Directive 2001/34/EC, as amended from

time to time, and includes any implementing measures that

have been or may be issued thereunder;".

In the marginal note to article 4 of the principal Act, for the Amendment of

words "Application for recognition." there shall be substituted the article

principal Act.

words "Application for authorisation.".

Article 8 of the principal Act shall be amended as follows

Amendment of

article 8 of the

principal Act.

(a)

in sub-article (2) thereof, for the words "the

recognition order", there shall be substituted the words "the

authorisation order"; and

(b)

immediately after sub-article (4) thereof, there shall

be added the following new sub-article

"(5) The competent authority shall notify ESMA

of any revocation order.".

Immediately after article 10A of the principal Act, there

shall be added the following new article

" Competent

10B. The competent authority shall

authority to

draw up a list of the regulated markets for

draw up list

which it is the home Member State and shall

when it is the

home Member

forward that list to the other Member States,

State of a

regulated

EEA States and ESMA.

A similar

market.

communication shall be effected in respect of

each change to that list.".

Article 11 of the principal Act shall be amended as

follows

(a)

in paragraph (e) thereof, for the words "Takeover

Bids Directive.", there shall be substituted the words "Takeover

Bids Directive;"; and

(b) immediately after paragraph (e) thereof, there shall

be added the following new paragraph

"(f) to cooperate with ESMA for the purposes of

the Prospectus Directive, in accordance with Regulation

(EU) No 1095/2010 of the European Parliament and of the

Council of 24 November 2010.".

Immediately after sub-article (9) of article 16 of the

principal Act there shall be added the following new sub-article

"(10) The Listing Authority shall notify ESMA of the

approval of the prospectus and any supplement thereto at the

same time as that approval is notified to the applicant, and shall

provide ESMA with a copy of such prospectus and any

supplement thereto.".

In paragraph (c) of sub-article (1) of article 17 of the

principal Act, for the words "and inform the European regulatory

authorities", there shall be substituted the words "and inform ESMA

and the European regulatory authorities".

Immediately after article 21 of the principal Act, there

shall be added the following new articles

" Cooperation

21A. The Listing Authority shall

with other

cooperate with other European regulatory

European

authorities whenever necessary for the

regulatory

authorities.

purpose of carrying out its duties and

exercising its powers under the Prospectus

Directive and the Transparency Directive. It

shall render the necessary assistance to other

European regulatory authorities, in particular

by exchanging information and cooperating in

any investigatory or supervisory function.

21B. The Listing Authority may refer to

Reference of

cases to

ESMA cases where a request for cooperation,

ESMA.

in particular to exchange information, has

been rejected or has not been acted upon

within a reasonable time.

21C. The obligation of professional

Obligation of

professional

secrecy shall not prevent the Listing

secrecy.

Authority from exchanging confidential

information or from transmitting confidential

information to other European regulatory

authorities, ESMA or ESRB, subject to

constraints

relating

to

firm-specific

information and effects on third countries as

provided for in Regulation (EU) No 1095/

2010 and Regulation (EU) No 1092/2010 of

the European Parliament and of the Council

of 24 November 2010 on European Union

macro-prudential oversight of the financial

system and establishing a European Systemic

Risk Board respectively. Information

exchanged between the Listing Authority and

other European regulatory authorities, ESMA

or the ESRB shall be covered by the

obligation of professional secrecy, to which

the persons employed or formerly employed

by the competent authority receiving the

information are subject.

21D. The Listing Authority shall notify

Notification to

ESMA.

ESMA of any cooperation agreements it

enters into providing for the exchange of

information with the regulatory authorities or

bodies enabled by their respective legislation

to carry out tasks under the Transparency

Directive.".

Sub-article (1) of article 49 of the principal Act shall be

amended as follows

(a)

in paragraph (e) thereof, for the words "including

any implementing measures that have been or may be issued

thereunder and relating to credit rating agencies, regulated

markets and, or the admissibility to listing of financial

instruments thereon and others as may be specified therein or to

any other matter falling within the terms of this Act.", there

shall be substituted the words "including any implementing

measures that have been or may be issued thereunder, and

including those relating to credit rating agencies, regulated

markets, commodities markets, central counterparties, central

securities depositaries, market making, short selling,

transactions in OTC derivatives, trade repositories and, or the

admissibility to listing of financial instruments thereon and

others as may be specified therein or to any other matter falling

within the terms of this Act;"; and

(b) immediately after paragraph (e) thereof, there shall

be added the following new paragraph

"(f) to regulate the operation and, or registration of

central counterparties operating in or from Malta.".

PART IV

AMENDMENTS TO THE INVESTMENT SERVICES ACT

This Part amends and shall be read and construed as one

with the Investment Services Act, hereinafter in this Part referred to

as "the principal Act".

Article 2 of the principal Act shall be amended as follows

(a)

in sub-article (1) thereof

(i) immediately before the definition "collective

investment scheme" there shall be added the following

new definitions

" "Alternative Investment Fund or AIF"

means a collective investment scheme, including

subfunds thereof, which raises capital from a

number of investors, with a view to investing it in

accordance with a defined investment policy for

the benefit of those investors, and which does not

qualify as a UCITS Scheme in terms of the UCITS

Directive;

"Alternative Investment Fund Manager or

AIFM" means a legal person whose regular

business is the management of one or more AIFs;

"AIFM Directive” means Directive 2011/61/

EU of the European Parliament and of the Council

of 8 June 2011 on Alternative Investment Fund

Managers and amending Directives 2003/41/EC

and 2009/65/EC and Regulations (EC) No 1060/

2009 and (EU) No 1095/2010, as amended from

time to time, and includes any implementing

measures that have been or may be issued

thereunder;";

(ii) for the definition "competent authority" there

shall be substituted the following

" "competent" authority” means

the Malta Financial Services Authority

established by the Malta Financial

Services Authority Act;";

(iii) immediately after the definition "competent

authority" there shall be inserted the following new

definitions

" "the CRD" means Directive 2013/36/EU

of the European Parliament and of the Council of

26 June 2013 on access to the activity of credit

institutions and the prudential supervision of credit

institutions and investment firms, amending

Directive 2002/87/EC and repealing Directives

2006/48/EC and 2006/49/EC, as amended from

time to time, and includes any implementing

measures that have been or may be issued

thereunder;

"the CRR" means Regulation (EU) No 575/

2013 of the European Parliament and of the

Council of 26 June 2013 on prudential

requirements for credit institutions and investment

firms and amending Regulation (EU) No 648/

2012, as amended from time to time, and includes

any implementing measures that have been or may

be issued thereunder;";

(iv) immediately after the definition "EEA State"

there shall be added the following new definitions

" "ESMA" means the European Securities

and Markets Authority established by Regulation

(EU) No 1095/2010 of the European Parliament

and of the Council of 24 November 2010;

"ESRB" means the European Systemic Risk

Board established by Regulation (EU) No 1092/

2010 of the European Parliament and of the

Council of 24 November 2010 on European Union

macro-prudential oversight of the financial system

and establishing a European Systemic Risk

Board;";

(v) immediately after the definition "European

investment firm", there shall be added the following new

definition

" "European management company" has the

same meaning assigned to it in regulations made

under this Act;";

(vi) for the definition "European regulatory

authority", there shall be substituted the following

" "European regulatory authority" means the

body or bodies designated by a Member State or

EEA State other than Malta in accordance with

Article 44 of the AIFM Directive, Article 48 of the

MIFID Directive and Article 97 of the UCITS

Directive to carry out each of the duties provided

for under the different provisions of the said

Directives;";

(vii) immediately after the definition "regulated

market", there shall be added the following new definition

" "Regulation (EU) No 1095/2010" refers to

Regulation (EU) No 1095/2010 of the European

Parliament and of the Council of 24 November

2010 establishing a European Supervisory

Authority (European Securities and Markets

Authority), amending Decision No 716/2009/EC

and repealing Commission Decision 2009/77/EC;

and

(viii) immediately after the definition "subsidiary",

there shall be added the following new definition

" "UCITS" means undertakings for

collective investment in transferable securities in

terms of the UCITS Directive as defined herein;";

and

(b) in sub-article (3) thereof, for the words "implement

the provisions of the MIFID Directive and the UCITS

Directive", there shall be substituted the words "implement the

provisions of the AIFM Directive, the MIFID Directive and the

UCITS Directive, and any EU Regulations or Directives on

financial services".

Article 2A of the principal Act shall be renumbered as sub- Amendment of

article (1) of the said article, and immediately after sub-article (1) article

principal Act.

there shall be added the following new sub-articles

"(2) The competent authority shall also carry out the

duties as competent authority for all purposes of the AIFM

Directive, the MIFID Directive and the UCITS Directive, and

the Commission of the European Union, ESMA and European

regulatory authorities shall be informed accordingly.

(3) Without prejudice to any other duty arising from this

Act, the AIFM Directive, the MIFID Directive or the UCITS

Directive, the competent authority shall

(a) notify ESMA of the complaint and redress

procedures which are available in Malta;

(b) notify the Commission of the European

Union, ESMA and the other European regulatory

authorities that it is the contact point in terms of article

17(1) and that it is the authority designated to receive

requests for exchange of information or cooperation in

terms of this Act;

(c) send to ESMA and to the Commission of the

European Union, a list of the categories of bonds referred

to in Article 54(1) of the UCITS Directive together with

the categories of issuers authorised, in accordance with the

laws and supervisory arrangements mentioned in that sub-

paragraph, to issue bonds complying with the criteria set

out in Article 54 of the UCITS Directive. A notice

specifying the status of the guarantees offered shall be

attached to those lists;

(d) ensure that all information received under the

third paragraph of Article 51 of the UCITS Directive

aggregated in respect of all the management or investment

companies they supervise is accessible to ESMA in

accordance with Article 35 of Regulation (EU) No 1095/

2010, and ESRB in accordance with Article 15 of

Regulation (EU) No 1092/2010 for the purpose of

monitoring systemic risks at European Union level;

(e) subject to the conditions laid down in Article

35 of Regulation (EU) No 1095/2010, provide ESMA and

the ESRB with aggregated information relating to the

activities of AIFMs under their responsibility;

(f) provide ESMA and other European

regulatory authorities with any information required for

the purposes of carrying out its duties under the AIFM

Directive.".

Immediately after sub-article (9) of article 6 of the

principal Act, there shall be added the following new sub-article

"(10) The competent authority shall notify ESMA

whenever an investment services licence has been granted by

the competent authority in terms of this article.".

Article 7 of the principal Act shall be amended as follows

(a)

in sub-article (2) thereof -

(i) paragraph (c) thereof shall be substituted by

the following new paragraph

"(c) if the competent authority has been

furnished by or on behalf of the licence holder with

information which is false, inaccurate or

misleading, or if the licence holder has obtained

the licence by making false statements or by any

other irregular means; or";

(ii) in paragraph (f) thereof, for the words

"licence holder;", there shall be substituted the words

"licence holder; and";

(iii) in paragraph (g) thereof, for the words "of

such licence; and", there shall be substituted the words "of

such licence."; and

(iv) paragraph (h) thereof shall be deleted; and

(b) immediately after sub-article (3) thereof, there shall

be added the following new sub-article

"(4) The competent authority shall notify ESMA

of any cancellation of an investment services licence in

terms of sub-article (1).".

Sub-article (1) of article 12 of the principal Act shall be Amendment of

article 12 of the

amended as follows

principal Act.

(a)

in paragraph (k) thereof, for the words "the MIFID

Directive and the UCITS Directive;", there shall be substituted

the words "the AIFM Directive, the MIFID Directive, and the

UCITS Directive;";

(b) in paragraph (l) thereof, for the words "to transpose,

implement and give effect to the provisions of Directive 2006/

49/EC of the European Parliament and of the Council of 14 June

2006 on the capital adequacy of investment firms and credit

institutions (recast), as may be amended from time to time, and

including any implementing measures issued thereunder;", there

shall be substituted the words "to transpose, implement and give

effect to the provisions of the CRD and the CRR, as may be

amended from time to time, including the provision of

implementing technical standards as specified therein; regulate

the supervision on a consolidated basis, provide for the

consultation, co-ordination, co-operation and the sharing and

exchange of information with European regulatory authorities

and other third country regulatory authorities as may be

necessary; provide for the exchange of information with the

European Systemic Risk Board, central banks which are

members of the European System of Central Banks, including

the Central Bank of Malta, exchange of information with the

European Banking Authority and the European Securities and

Markets Authority, and exchange of information with other

departments of government administrations in other Member

States responsible for law on the supervision of institutions,

financial institutions and insurance undertakings and with

inspectors acting on behalf of those departments; provide for the

establishment of colleges of supervisors; provide for the

exercise of powers by the Authority on investment firms, credit

institutions, financial holding companies, mixed financial

holding companies and mixed activity holding companies, or

their effective managers, as may be defined in the said

regulations; provide for the establishment and imposition of

administrative penalties on licence holders or others as specified

therein or other measures for the contravention of any of the

regulations, and to provide for appeals therefrom to the

Financial Services Tribunal; provide for the obligations of the

competent authority to report to the European Banking

Authority, the European Commission and the European

Insurance and Occupational Pensions Authority, the European

Securities and Markets Authority as may be specified in the said

regulations;"; and

(c)

in paragraph (n) thereof, for the words "as may be

specified therein or to any other matter falling within the terms

of this Act and for this purpose to provide that any provision in

any other law shall not apply to matters falling under the

regulations, and, in particular, may provide that in so far as any

of the provisions of the regulations are inconsistent with the

provisions of the Companies Act, such provisions shall prevail,

and the provisions of the Companies Act shall, to the extent of

the inconsistency, not apply;", there shall be substituted the

words "as may be specified therein; regulations made under this

paragraph, and strictly related to transposition or

implementation as aforesaid, may provide that any provision of

this Act or of any other law shall not apply to matters falling

under the regulations, and that in so far as any of the provisions

of the regulations are inconsistent with the provisions of this

Act or of any other law, such provisions in any such regulations

shall prevail;".

Sub-article (1) of article 13 of the principal Act shall be

amended as follows

(a)

paragraph (v) thereof shall be renumbered as

paragraph (vi); and

(b) immediately after paragraph (iv) thereof, there shall

be added the following new paragraph

"(v) an auditor of a licence holder; or".

Sub-article (2) of article 15 of the principal Act shall be

amended as follows

(a)

in paragraph (a) thereof, for the words "or any other

requirement,", there shall be substituted the words "or any other

requirement, including any requirement emanating from

European Union legislation,";

(b)

in paragraph (c) thereof, for the words "in relation to

the holder of a licence be removed or removed and replaced;",

there shall be substituted the words "in relation to the holder of

a licence be prohibited, temporarily or otherwise, suspended

from carrying out activities licensable under the Act, or

removed or removed and replaced";

(c)

paragraphs (f) and (g) thereof shall be renumbered

as paragraphs (g) and (h) respectively;

(d) immediately after paragraph (e) thereof, there shall

be inserted the following new paragraph

"(f) require a licence holder to submit a financial

recovery plan, as may be determined in the Investment

Services Rules, if it considers that the interest of investors,

consumers, creditors or other interested persons are likely

to be prejudiced owing to a deterioration in the financial

position of the licence holder;";

(e)

in paragraph (g) thereof, for the words "the

implementation of the MIFID Directive and the UCITS

Directive;", there shall be substituted the words "the

implementation of the AIFM Directive, the MIFID Directive

and the UCITS Directive;";

(f)

in paragraph (h) thereof, as renumbered, for the

words "of the Financial Markets Act.", there shall be substituted

the words "of the Financial Markets Act:"; and

(g) immediately after paragraph (h) thereof, there shall

be inserted the following new proviso

"Provided that in applying paragraphs (d) and (e),

the competent authority may also appoint a competent

person to act as liquidator for the purposes of winding up

the affairs of a licence holder under this Act; and such

person shall be the liquidator of the licence holder for all

purposes of law to the exclusion of any other person.".

Immediately after article 15 of the principal Act, there

shall be inserted the following new article

" Power of

15A. (1) Without prejudice to

the

the powers conferred to the competent

competent

authority under this Act, the competent

authority to

protect the

authority may, where it is satisfied that

public

interest.

sufficient circumstances exist, proceed

to take any one or more of the following

measures

(a)

appoint a person to

advise the licence holder in the

proper conduct of its business;

(b) appoint a person to

take charge of the assets of the

licence holder, or any portion of

them, for the purposes of

safeguarding the interests of

investors, consumers, creditors or,

if any, shareholders, of the licence

holder;

(c)

appoint a person to

assume control of the business of

the licence holder, either to carry

on that business or to carry out

such other function or functions in

respect of such business, or part

thereof, as the competent authority

may direct;

(d) fix the remuneration to

be paid by the licence holder to

any person appointed under article

15 or under this article;

(e)

do such other act as it

may deem appropriate in the

circumstances to give better effect

to the implementation of the

provisions of this article,

and having adopted any one or more of

the measures aforesaid, the competent

authority may further proceed in any one

or more such measures, whether in

addition thereto or in substitution

therefor.

(2) Where a person is appointed

by the competent authority -

(a)

under

sub-article

(1)(a), it shall be the duty of the

licence holder to act in accordance

with the advice given by such

person unless and until the

competent

authority,

on

representation made to it, directs

otherwise;

(b) under

sub-article

(1)(b), the licence holder shall

deliver to such person all the

assets, whether movable or

immovable, of which he is placed

in charge, and all the powers,

functions and duties of the licence

holder in respect of those assets,

including, if such licence holder is

a legal person, those exercisable

by the legal person in a general

meeting, or by the directors, or by

any other person, including the

legal and judicial representation of

such legal person, shall be

exercisable by and vest in the

person appointed under the said

paragraph to the exclusion of any

other person;

(c)

under subarticle (1)(c),

the licence holder shall submit its

business to the control of such

person and shall provide such

person with such facilities as may

be required to carry on that

business or to carry out the

functions assigned to such person

under the said paragraph; and all

the powers, functions and duties of

the licence holder, including, if

such licence holder is a legal

person, those exercisable by the

legal person in a general meeting,

or by the directors, or by any other

person, including the legal and

judicial representation of such

legal person in all matters, shall be

exercisable by and vest in such

person to the exclusion of any

other person.

(3) The competent authority may,

where it feels it is in the best interest of

the public so to do, make or issue public

statements or notices giving warnings or

information about any measure taken in

terms of this article.

(4) The competent authority may

require the licence holder concerned to

pay all the expenses of, and incidental

to, the publication or issue of public

statements or notices pursuant to this

article, or such part thereof as it may

deem appropriate; and any sum so due

shall be recoverable by the competent

authority in the same manner as an

administrative penalty imposed under

this Act.".

Immediately after sub-article (4) of article 16A of the

principal Act, there shall be added the following new sub-articles

"(5) Where the competent authority has made a public

statement in terms of sub-article (4), it shall simultaneously

report that fact to ESMA.

(6)

The competent authority shall annually provide

ESMA with aggregated information about all the administrative

measures and sanctions imposed in accordance with this article

and shall upon request provide the necessary information on the

application of administrative measures and imposition of

penalties in the case of breaches of the provisions adopted in the

implementation of the AIFM Directive.".

In article 16B of the principal Act, for the words "any Amendment of

provisions which transpose the MIFID Directive and the UCITS article

the principal

Directive,", there shall be substituted the words "any provisions Act.

which transpose the AIFM Directive, the MIFID Directive and the

UCITS Directive,".

Article 17 of the principal Act shall be amended as Amendment of

article 17 of the

follows

principal Act,.

(a)

in sub-article (2) thereof

(i) for the words "MIFID Directive and the

UCITS Directive", wherever they appear in the said sub-

article (2), there shall be substituted the words "AIFM

Directive, the MIFID Directive and the UCITS Directive";

(ii) for the words "Investment Services Rules

issued thereunder.", there shall be substituted the words

"Investment Services Rules issued thereunder:", and

immediately thereafter there shall be added the following

new proviso

"Provided that the competent authority shall

communicate information to other European

regulatory authorities where this is relevant for

monitoring and responding to the potential

implications of the activities of an individual

AIFM or AIFMs collectively, for the stability of

systemically relevant investment firms and the

orderly functioning of markets on which AIFMs

are active. ESMA and the ESRB shall be informed

accordingly.";

(b) in sub-article (8) thereof, for the words "sub-article

(7) and article 26" there shall be substituted the words "sub-

article (7) of this article and article 26";

(c)

in sub-article (9) thereof

(i) for the words "contrary to the provisions of

the MIFID Directive or the UCITS Directive", there shall

be substituted the words "contrary to the provisions of the

AIFM Directive, the MIFID Directive or the UCITS

Directive";

(ii) for the words "to the contact point in the other

Member State or EEA State.", there shall be substituted the

words "to the contact point in the other Member State or

EEA State and to ESMA:", and immediately thereafter

there shall be added the following new proviso

"Provided that where the said suspected acts

have been or are suspected to have been committed

by an AIFM in breach of the AIFM Directive, the

competent authority shall also inform the home

Member State and the host Member State of the

AIFM, as the case may be, in as specific a manner

as possible."; and

(d)

in sub-article (11) thereof

(i) for the words "contrary to the provisions of

the MIFID Directive or the UCITS Directive", there shall

be substituted the words "contrary to the provisions of the

AIFM Directive, the MIFID Directive or the UCITS

Directive"; and

(ii) for the words "shall inform the notifying

European regulatory authority", there shall be substituted

the words "shall inform the notifying European regulatory

authority and ESMA".

Article 17A of the principal Act shall be amended as

(a)

in sub-article (1) thereof, for the words "or in an

investigation:", there shall be substituted the words "or in an

investigation in the territory of the latter within the framework

of their powers:";

(b)

in sub-article (2) thereof

(i) for the words "in terms of Article 101(5) of

the UCITS Directive", there shall be substituted the words

"in terms of Article 54(2) of the AIFM Directive and

Article 101(5) of the UCITS Directive"; and

(ii) for the words "overall control of such

Member State.", there shall be substituted the words

"overall control of such Member State on whose territory

the said verification or investigation is being conducted.";

and

(iii) in paragraph (b) of sub-article (3) thereof, for

the words "in terms of Article 101(5) of the UCITS

Directive", there shall be substituted the words "in terms of

Article 54(2) of the AIFM Directive and Article 101(5) of

the UCITS Directive".

Article 17B of the principal Act shall be amended as Amendment of

article 17B of

follows

the principal

Act.

(a)

for the words "designated as contact points under

Article 56 (1) of the MIFID Directive, or with European

regulatory authorities", there shall be substituted the words

"designated as contact points under Article 44 of the AIFM

Directive, or with European regulatory authorities designated as

contact points under Article 56(1) of the MIFID Directive, or

with European regulatory authorities"; and

(b) for the words "In any case above-mentioned, the

competent authority shall notify the requesting European

regulatory authority accordingly providing as much detailed

information as possible for such refusal.", there shall be

substituted the words "In the case of such a refusal, the

competent authority shall notify the European regulatory

authority and ESMA accordingly, providing as detailed

information as possible for such refusal.".

Article 17D of the principal Act shall be renumbered as Renumbering of

article 17D of

article 17F.

the principal

Act.

Immediately after article 17C of the principal Act, there Addition of new

articles to the

shall be added the following new articles

principal Act.

" Referral to

17D. The competent authority may refer

ESMA.

to ESMA, situations where a request relating

to one of the following has been rejected or

has not been acted upon within a reasonable

time

(a)

to exchange information as

provided for in article 17;

(b) to carry out a supervisory

activity, an on-site verification or an

investigation, as provided for in article

17A; and

(c)

to seek authorisation for its

officials to accompany those of the

European regulatory authority as

provided for in article 17A.

17E. (1) The competent authority

Cooperation

with ESMA.

shall cooperate with ESMA for the purposes

of the AIFM Directive, the MIFID Directive

and the UCITS Directive in accordance with

Regulation (EU) No 1095/2010.

(2) In the case of a disagreement

between the competent authority and a

European regulatory authority on an

assessment, action or omission pertaining to

either authority, in areas where the AIFM

Directive

requires

cooperation

or

coordination between authorities from more

than one Member State, the competent

authority may refer the matter to ESMA.

(3) The competent authority shall,

without delay, provide ESMA with all

information necessary to carry out its duties

under the AIFM Directive, the MIFID

Directive and the UCITS Directive in

accordance with Article 35 of Regulation

(EU) No 1095/2010.".

Immediately after article 17F, as renumbered, of the

principal Act, there shall be added the following new article

17G. The competent authority shall

" Competent

authority to

inform the Commission of the European

inform the

Union and ESMA of any general difficulties

Commission

and ESMA of

which

general

difficulties.

(a)

an

investment

services

licence holder encounters in establishing

itself or providing investment services

and, or performing investment activities

in any overseas country or territory; and

(b) UCITS

encounter

in

marketing their units in any overseas

country or territory.".

Sub-article (2) of article 19 of the principal Act shall be

amended as follows

(a)

in paragraph (g) thereof, for the words "article

12(5); or", there shall be substituted the words "article 12(5);";

(b) in paragraph (h) thereof, for the words "article 15.",

there shall be substituted the words "article 15; or"; and

(c)

immediately after paragraph (h) thereof, there shall

be inserted the following new paragraph

"(i) any measure taken in terms of article 15A(1),

(2) and (4).".

Article 26 of the principal Act shall be amended as Amendment of

article 26 of the

follows

principal Act.

(a)

in the first proviso of sub-article (1) thereof, for the

words "or market operators:", there shall be substituted the

words "or market operators, including the exchange or

transmission of confidential information to ESMA or the

ESRB:"; and

(b)

in sub-article (3) thereof -

(i) for the words "The provisions of this article

and of articles 17 and 17D" there shall be substituted the

words "The provisions of this article and of articles 17 and

17F"; and

(ii) for the words "performance of their

functions:" there shall be substituted the words

"performance of their functions. Likewise, the competent

authority shall be entitled to the receipt of such

information as it may require for the purpose of

performing its functions under the MIFID Directive:".

PART V

AMENDMENTS TO THE BANKING ACT

This Part amends and shall be read and construed as one Amendments to

with the Banking Act, hereinafter in this Part referred to as "the the

Act.

principal Act".

Sub-article (1) of article 2 of the principal Act shall be Amendment of

article 2 of the

amended as follows

principal Act.

(a)

in the definition "consolidating supervisor", for the

words "controlled by EU parent financial holding companies;",

there shall be substituted the words "controlled by EU parent

financial holding companies or EU parent mixed financial

holding companies;";

(b) immediately after the definition "director" there

shall be added the following new definition

" "EBA" means the European Banking Authority

established by Regulation (EU) No 1093/2010 of the

European Parliament and of the Council of the 24

November 2010;";

(c)

in the definition "EU parent credit institution" -

(i) for the words "or of a financial holding

company set up in any Member State:", there shall be

substituted the words "or of a financial holding company

or mixed financial holding company established in any

Member State:"; and

(ii) in the second paragraph thereof, in the

definition "parent credit institution in a Member State", for

the words "or of a financial holding company set up in the

same Member State;", there shall be substituted the words

"or of a financial holding company or mixed financial

holding company established in the same Member State;";

(d) in the definition "EU parent financial holding

company" -

(i) for the words "or of another financial holding

company set up in any Member State:", there shall be

substituted the words "or of another financial holding

company or mixed financial holding company established

in any Member State:"; and

(ii) in the second paragraph thereof, in the

definition "parent financial holding company in a Member

State", for the words "or of a financial holding company

set up in the same Member State;", there shall be

substituted the words "or of a financial holding company

or mixed financial holding company established in the

same Member State;";

(e)

immediately after the definition "EU parent

financial holding company", there shall be added the following

new definition

" "EU parent mixed financial holding company"

means a parent mixed financial holding company in a

Member State, which is not itself a subsidiary of a credit

institution authorised in any Member State or of another

financial holding company or mixed financial holding

company established in any Member State

For the purpose of this definition, "parent mixed

financial holding company in a Member State" means a

mixed financial holding company which is not itself a

subsidiary of a credit institution authorised in the same

Member State, or of a financial holding company or mixed

financial holding company established in the same

Member State;";

(f)

the definition "Member State" shall be substituted

by the following

" "Member State" means a Member State of the

European Union and includes an EEA State;";

(g) immediately after the definition "Minister" there

shall be added the following new definition

" "mixed financial holding company" means a

parent undertaking, other than a regulated entity, which

together with its subsidiaries, at least one of which is a

regulated entity which has its registered office in the

European Union or the EEA, and other entities, constitutes

a financial conglomerate;".

Sub-article (1) of article 3 of the principal Act shall be Amendment of

article 3 of the

amended as follows

principal Act.

(a)

paragraph (b) thereof shall be renumbered as

paragraph (c); and

(b) immediately after paragraph (a) thereof, there shall

be added the following new paragraph

"(b) The Minister, acting on the advice of the

competent authority, may make regulations to transpose,

implement and give effect to the provisions and

requirements of Directives, Regulations and any other

legislative measures of the European Union requiring

transposition and, or implementation, as they may be

amended from time to time, including any implementing

measures that have been or may be issued thereunder and

relating to licence holders and others as may be specified

therein; any such regulations strictly related to

transposition or implementation as aforesaid may contain

provisions which are inconsistent with the provisions of

this Act or of any other law, and for this purpose may

provide that any provision in this Act or in any other law

shall not apply to matters falling under the regulations, and

in case of such inconsistency, such provisions in any such

regulations shall prevail.".

In sub-article (2) of article 4A of the principal Act, for the

words "Committee of European Banking Supervisors" wherever they

appear, there shall be substituted the words "EBA".

Sub-article (2) of article 6 of the principal Act shall be

substituted by the following new sub-article

"(2) All applications for a licence shall be made in such

form and accompanied by such information, and shall conform

with such requirements as may be prescribed from time to time

by a Banking Rule. Such requirements shall be notified to the

Commission of the European Union and the EBA

Provided that an application may only be withdrawn by

written notice to the competent authority at a time before it has

been granted or refused.".

In sub-article (8) of article 7 of the principal Act, for the

words "The competent authority shall notify the Commission of the

European Union of every licence issued", there shall be substituted

the words "The competent authority shall notify the EBA of every

licence issued".

In sub-article (7) of article 9 of the principal Act, for the

words "The competent authority shall notify the Commission of the

European Union of any revocation of a licence", there shall be

substituted the words "The competent authority shall notify the

Commission of the European Union and the EBA the reasons for the

revocation of a licence".

In sub-article (2) of article 11A of the principal Act, for the

words "The competent authority shall notify the European

Commission", there shall be substituted the words "The competent

authority shall notify the Commission of the European Union, the

EBA".

Article 16A of the principal Act shall be amended as

follows

(a)

sub-article (2) thereof shall be renumbered as sub-

article (2)(a); and

(b) immediately after paragraph (a) of sub-article (2)

thereof, as renumbered, there shall be added the following new

paragraph

"(b) For the purposes of determining the

appropriate level of own funds on the basis of the review

and evaluation carried out in accordance with article 17D,

the competent authority shall assess whether any

imposition of a specific own funds requirement in excess

of the minimum level is required to capture risks to which

a credit institution is or might be exposed, taking into

account the following

(i)

the quantitative and qualitative

aspects of the credit institutions’ assessment

process referred to in article 17C;

(ii) the credit institutions’ arrangements,

processes and mechanisms referred to in article

17B;

(iii) the outcome of the review and

evaluation carried out in accordance with article

17D.".

In paragraph (c) of sub-article (1) of article 17 of the Amendment of

principal Act, for the words "competent authority shall require the article

principal Act.

credit institution, to the exclusion of an electronic money institution,

to take necessary measures", there shall be substituted the words

"competent authority shall require the credit institution to take

necessary measures".

Article 25 of the principal Act shall be amended as Amendment of

article 25 of the

principal Act.

(a)

sub-article (2) thereof shall be substituted by the

following new sub-article

"(2) The competent authority may further, on the

basis of Malta’s international commitments, disclose

information to overseas regulatory authorities and the EBA

in accordance with the Capital Requirements Directive,

other European Union Directives applicable to credit

institutions, and with Articles 31 and 35 of Regulation

(EU) No 1093/2010. Such information shall be subject to

professional secrecy provided for under this Act and any

regulations made thereunder."; and

(b)

sub-article (6) thereof shall be amended as follows

(i) for the words from "The competent authority

shall further, upon a request" to the words "mentioned

above, under the law:", there shall be substituted the

following

"The competent authority shall further, upon

a request in writing, disclose

(a) to the Central Bank, central

banks of the European system of the central

banks, other overseas central banks, other

bodies with a similar function in their

capacity as monetary authorities when this

information is relevant for the exercise of

their respective statutory tasks, including the

conduct of monetary policy and related

liquidity provision, oversight payments,

clearing and settlement systems and the

safeguarding of the stability of the financial

system;

(b) where appropriate, to other

authorities responsible for overseeing

payment systems;

(c) to the European Systemic Risk

Board, where the information is relevant for

the exercise of statutory tasks under

Regulation (EU) No 1092/2010 of the

European Parliament,

any information in the possession of or accessible

to the competent authority, which is required for

the discharge of the duties of the Central Bank and

the other authorities mentioned above, under the

law:"; and

(ii) in the first proviso thereto, for the words

"clearing and settlement systems, and safeguarding the

stability of the financial system:", there shall be substituted

the words "clearing and securities settlement systems, and

safeguarding the stability of the financial system, and shall

also communicate information to the European Systemic

Risk Board under Regulation (EU) No 1092/2010, where

such information is relevant for the exercise of its statutory

tasks:".

Article 25A of the principal Act shall be amended as Amendment of

article 25A of

the principal

Act.

(a)

in sub-article (1) thereof, for the words "it shall

communicate on its own initiative all essential information.",

there shall be substituted the words "it shall communicate on its

own initiative all essential information:", and immediately

thereafter there shall be added the following new proviso

"Provided that where the competent authority is

responsible for supervision, on a consolidated basis, of EU

parent credit institutions and credit institutions controlled

by EU parent financial holding companies or by EU parent

mixed financial holding companies, it shall provide the

overseas regulatory authorities who supervise subsidiaries

of these parent undertakings with all relevant information.

In determining the extent of relevant information, the

importance of those subsidiaries within the financial

system in the Member States of those overseas regulatory

authorities shall be taken into account.";

(b) paragraph (i) of sub-article (2) thereof shall be

substituted by the following

"(i) identification of the legal structure and the

governance and organisational structure of the group,

including all regulated entities, non-regulated subsidiaries

and significant branches belonging to the group, the parent

undertakings, in accordance with articles 7(1)(d) and 17B

of the Act and Article 73(3) of the Capital Requirements

Directive;";

(c)

sub-articles (6) to (12) thereof shall be renumbered

as sub-articles (7) to (13) respectively;

(d) immediately after sub-article (5) thereof, there shall

be added the following new sub-article

"(6) (a) The competent authority shall cooperate

with the EBA for the purposes of the Capital Requirements

Directive, in accordance with Regulation (EU) No 1093/

2010, and shall provide the EBA with all the information

necessary to carry out its duties under the Capital

Requirements Directive and in accordance with Article 35

of the said Regulation (EU) No 1093/2010.

(b) The competent authority may refer to the

EBA situations where

(i)

an overseas regulatory authority has

not communicated essential information; or

(ii) a request for cooperation, in

particular to exchange relevant information, has

been rejected or has not been acted upon within a

reasonable time.";

(e) in sub-article (7) thereof, as renumbered, for the

words "The competent authority may, by bilateral agreement,

delegate its responsibility", there shall be substituted the words

"The competent authority may, by bilateral agreement, in

accordance with Article 28 of Regulation (EU) No 1093/2010,

delegate its responsibility", and for the words "The Commission

shall be kept informed of the existence and the content of any

such agreements.", there shall be substituted the words "The

EBA shall be kept informed of the existence and the content of

any such agreements."; and

(f)

in paragraph (a) of sub-article (11) thereof, as

renumbered, for the words "and compatibility with European

Community Law,", there shall be substituted the words "and

compatibility with European Union Law,".

Article 25B of the principal Act shall be amended as

follows

(a)

in sub-article (1) thereof, for the words "and credit

institutions controlled by EU parent financial holding

companies, it shall carry out the following functions:", there

shall be substituted the words "and credit institutions controlled

by EU parent financial holding companies or EU parent mixed

financial holding companies, it shall carry out the following

tasks:";

(b) sub-articles (2) to (7) thereof shall be renumbered as

sub-articles (3) to (8) respectively;

(c)

immediately after sub-article (1) thereof, there shall

be added the following new sub-article

"(2) Where, with respect to the exchange of

information within the provisions of this article, an

overseas regulatory authority does not co-operate with the

competent authority to the extent required in carrying out

the functions listed in sub-article (1), the competent

authority may refer the matter to the EBA, which may act

in accordance with Article 19 of Regulation (EU) No 1093/

2010.";

(d) for sub-article (5) thereof, as renumbered, there shall

be substituted the following

"(5) The competent authority in its role as

consolidating supervisor shall, subject to article 25, alert as

soon as it is practicable the EBA, the European Systemic

Risk Board, the central banks of the European system of

central banks, and those government departments

responsible for legislation on supervision of credit

institutions referred to in sub-article (8) and shall

communicate all information that is essential for the

pursuance of their tasks, where an emergency situation,

including a situation as defined in Article 18 of Regulation

(EU) No 1093/2010, or a situation of adverse

developments in financial markets, arises, which

potentially jeopardises the market liquidity and the

stability of the financial system in any of the Member

States where entities of a group have been authorised or

where significant branches are established.";

(e)

in sub-article (6) thereof, as renumbered, for the

words "it shall alert as soon as it is practicable the overseas

regulatory authorities referred to in Articles 125 and 126 of the

Capital Requirements Directive.", there shall be substituted the

words "it shall alert as soon as it is practicable the overseas

regulatory authorities referred to in Articles 125 and 126 of the

Capital Requirements Directive and the EBA."; and

(f)

immediately after sub-article (8) thereof, as

renumbered, there shall be added the following new sub-article

"(9) Where the competent authority is responsible

for supervision on a consolidated basis, it shall provide the

overseas regulatory authorities concerned and EBA with

all the information regarding the banking group in

accordance with articles 7(1)(d) and 17B of the Act and

Article 73(3) of the Capital Requirements Directive, in

particular regarding the legal structure and the governance

and organisational structure of the group.".

In sub-article (1) of article 25C of the principal Act, for the

words "mixed-activity holding company or its subsidiary situated in

another Member State", there shall be substituted the words "mixed-

activity holding company, a mixed financial holding company, or its

subsidiary situated in another Member State".

PART VI

AMENDMENTS TO THE FINANCIAL INSTITUTIONS ACT

This Part amends and shall be read and construed as one

with the Financial Institutions Act, hereinafter in this Part referred to

as "the principal Act".

In paragraph (b) of sub-article (7) of article 3 of the

principal Act, for the words "money laundering or terrorist

financing", there shall be substituted the words "money laundering or

the funding of terrorism".

Article 8A of the principal Act shall be amended as

follows

(a)

in paragraph (b) of sub-article (1) thereof, for the

words "money laundering and terrorist financing", there shall be

substituted the words "money laundering and the funding of

terrorism"; and

(b) in the proviso to sub-article (5) thereof, for the

words "money laundering or terrorist financing", wherever they

appear, there shall be substituted the words "money laundering

or the funding of terrorism".

In paragraph (g) of article 21 of the principal Act, for the

words "article 25A", there shall be substituted the words "article

6(8)".

PART VII

AMENDMENTS TO THE COMPANIES ACT

This Part amends and shall be read and construed as one

with the Companies Act, hereinafter in this Part referred to as "the

principal Act".

Paragraph (b) of sub-article (3) of article 2 of the principal

Act shall be amended as follows

(a)

in sub-paragraph (iv) thereof, for the words "or the

total consideration of the offer in the Community shall not

exceed", there shall be substituted the words "or the total

consideration of the offer in the European Union and the EEA

shall not exceed";

(b) in sub-paragraph (v) thereof, for the words "the total

consideration of the securities for the offer in a Member State or

EEA State", there shall be substituted the words "the total

consideration of the securities for the offer in the European

Union and the EEA"; and

(c)

in sub-paragraph (vi) thereof, for the words "total

consideration of the offer in a Member State or EEA State,",

there shall be substituted the words "total consideration of the

offer in the European Union and the EEA,".

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

article 3A to the

be inserted the following new article

principal Act.

" Transposition

3A. This Act, in part, seeks to

and

transpose, implement and give effect to the

implementation

provisions and requirements of the following

of EU

instruments.

European Union Directives and Regulations,

as may be amended from time to time,

including any implementing measures that

have been or may be issued thereunder

(a)

Fourth Council Directive 78/

660/EEC of 25 July 1978 based on

Article 54(3)(g) of the Treaty on the

annual accounts of certain types of

companies;

(b) Sixth Council Directive 82/

891/EEC of 17 December 1982 based on

Article 54(3)(g) of the Treaty,

concerning the division of public limited

liability companies;

(c)

Seventh Council Directive

83/349/EEC of 13 June 1983 based on

the Article 54(3)(g) of the Treaty on

consolidated accounts;

(d) Eleventh Council Directive

89/666/EEC of 21 December 1989

concerning disclosure requirements in

respect of branches opened in a Member

State by certain types of company

governed by the law of another State;

(e)

Directive 2003/58/EC of 15

July 2003 amending Council Directive

68/151/EEC, as regards disclosure

requirements in respect of certain types

of companies;

(f)

Directive 2005/56/EC of the

European Parliament and of the Council

of 26 October 2005 on cross-border

mergers of limited liability companies;

(g) Directive 2006/43/EC of the

European Parliament and of the Council

of 17 May 2006 on statutory audits of

annual accounts and consolidated

accounts, amending Council Directives

78/660/EEC and 83/349/EEC and

repealing Council Directive 84/253/

EEC;

(h) Directive 2006/68/EC of the

European Parliament and of the Council

of 6 September 2006 amending Council

Directive 77/91/EEC as regards the

formation of public limited liability

companies and the maintenance and

alteration of their capital;

(i)

Directive 2007/63/EC of the

European Parliament and of the Council

of 13 November 2007 amending

Council Directives 78/855/EEC and 82/

891/EEC as regards the requirement of

an independent expert's report on the

occasion of merger or division of public

limited liability companies;

(j)

Directive 2009/101/EC of

the European Parliament and of the

Council of 16 September 2009 on

coordination of safeguards which, for

the protection of the interests of

members and third parties, are required

by Member States of companies within

the meaning of the second paragraph of

Article 48 of the Treaty, with a view to

making such safeguards equivalent;

(k) Directive 2009/102/EC of

the European Parliament and of the

Council of 16 September 2009 in the

area of company law on single-member

private limited liability companies;

(l)

Directive 2009/109/EC of

the European Parliament and of the

Council of 16 September 2009

amending Council Directives 77/91/

EEC, 78/855/EEC and 82/891/EEC, and

Directive 2005/56/EC as regards

reporting

and

documentation

requirements in the case of mergers and

divisions;

(m) Directive 2011/35/EU of the

European Parliament and of the Council

of 5 April 2011 concerning mergers of

public limited liability companies;

(n) Directive 2012/30/EU of the

European Parliament and of the Council

of 25 October 2012 on coordination of

safeguards which, for the protection of

the interests of members and others, are

required by Member States of

companies within the meaning of the

second paragraph of Article 54 of the

Treaty on the Functioning of the

European Union, in respect of the

formation of public limited liability

companies and the maintenance and

alteration of their capital, with a view to

making such safeguards equivalent;

(o) Council Regulation (EEC)

No 2137/85 of 25 July 1985 on the

European Economic Interest Grouping

(EEIG);

(p) Council Regulation (EC) No

2157/2001 of 8 October 2001 on the

Statute for a European company (SE);

which shall be interpreted and applied

accordingly.".

Article 66A of the principal Act shall be amended as Amendment of

article 66A of

follows

the principal

Act.

(a)

in sub-article (1) thereof -

(i)

for the words "may be divided into shares which in

the deed of partnership expressly limits its objects to the

collective investment of its funds in securities and in other

movable and immovable property, or in any of them, with the

aim of spreading investment risk and giving", there shall be

substituted the words "may or may not be divided into shares,

which in the deed of partnership expressly limits its object

either to the collective investment of its funds in securities and

in other movable and immovable property, or in any of them,

with the aim of giving"; and

(ii) for the words "or for any other purpose as the

Minister may from time to time prescribe by regulations.", there

shall be substituted the words "or otherwise to any other

purpose as may be prescribed in the Tenth Schedule or as the

Minister may from time to time prescribe by regulations.";

(b) sub-article (2) thereof shall be substituted by the

following

"(2) A partnership en commandite or limited

partnership within the meaning of subarticle (1) shall be

regulated by the provisions contained in the Tenth

Schedule and by any regulations made by the Minister in

terms of this article; the provisions of this Part of this Act,

other than this article, shall not apply to any such

partnership except and to the extent that they are expressly

made applicable by means of the said Schedule or by

means of any such regulations."; and

(c)

sub-article (3) thereof shall be subsituted by the

following

"(3) The Minister may make regulations for the

better carrying out of the provisions of this article and of

any of the provisions of the Tenth Schedule, and may,

without prejudice to the generality of the foregoing, by

such regulations make provisions as to any of the

following matters -

(a) the forms and returns to be used in

respect of such partnerships en commandite or

limited partnerships within the meaning of sub-

article (1), for the purposes of this Act or such other

purposes as may be prescribed therein;

(b) the registration of such partnerships en

commandite or limited partnerships under this Act

within the meaning of sub-article (1) and any

matters incidental thereto;

(c) the records and accounts to be kept by

such partnerships en commandite or limited

partnerships within the meaning of sub-article (1)

and any matter incidental thereto;

(d) the prescription of fees payable under

this Act in respect of such partnerships en

commandite or limited partnerships within the

meaning of subarticle (1);

(e) the exemption of partnerships en

commandite or limited partnerships within the

meaning of subarticle (1) or any category thereof

from any of the provisions of the Tenth Schedule or

of this Act which may otherwise be applicable

thereto, as the case may be, subject to such

modifications, variations and conditions as may be

specified;

(f) any other matters to be prescribed under

this Act or the Tenth Schedule in respect of such

partnerships en commandite or limited partnerships

within the meaning of subarticle (1), or any other

matters to better regulate the provisions of the Tenth

Schedule in respect of such partnerships en

commandite or limited partnerships within the

meaning of subarticle (1) or any category thereof.".

In article 68 of the principal Act, for the words "subscribed Amendment of

by at least two persons, and a certificate of registration is issued in article

principal Act.

respect thereof.", there shall be substituted the words "subscribed by

at least two persons, or in the case of a single member company

constituted in terms of article 212, by the single member, and a

certificate of registration is issued in respect thereof.".

Article 70 of the principal Act shall be amended as Amendment of

article 70 of the

follows

principal Act.

(a)

in sub-article (1) thereof, for the words

"abbreviation "p.l.c.".", there shall be substituted the words

"abbreviation "p.l.c.":", and immediately thereafter there shall

be added the following new proviso

"Provided that where the public company is a

‘societas europaea’ in accordance with Council Regulation

(EC) No 2157/2001 of 8 October 2001 on the Statute for a

European company, in lieu of the words "public limited

company" or their abbreviation "p.l.c.", the name of the

public company shall be preceded or followed by the

abbreviation "SE".";

(b) in paragraph (b) of sub-article (3) thereof, for the

words "The words "investment company with fixed share

capital" may be replaced with the words "investment company"

or with "INVCO" ", there shall be substituted the words "the

words "investment company with fixed share capital" may be

replaced with the abbreviation "INVCO" ";

(c)

in the second proviso of sub-article (4) thereof, for

the words "the Registrar shall have regard to the business or

proposed business of the company, to the protection of the

names of individuals", there shall be substituted the words "the

Registrar shall have regard, inter alia, to the business or

proposed business of the company, to the protection of the

names of persons"; and

(d)

in sub-article (6) thereof

(i) in paragraph (c) therof, for the words "under a

name or title which ends with the words "investment

company with fixed share capital", "investment company"

or "INVCO" or a contraction or imitation thereof", there

shall be substituted the words "under a name or title which

contains the words "investment company with fixed share

capital" or "INVCO" or a contraction or imitation thereof";

and

(ii) in paragraph (d) thereof, for the words "under

a name or title which ends with the words" there shall be

substituted the words "under a name or title which contains

the words".

In the proviso of sub-article (2) of article 82 of the

principal Act, for the words "may, in addition to the manner of

authentication laid down in sub-article (1), be authenticated by an

individual specifically authorised for such purpose by the

memorandum", there shall be substituted the words "may be

authenticated by a director, the company secretary, an authorised

officer of the company or by an individual specifically authorised for

such purpose by the memorandum".

Article 85 of the principal Act shall be amended as Amendment of

article 85 of the

principal Act.

(a) sub-article (1) thereof, for the words "for an ordinary

resolution by article 135(2).", there shall be substituted the words "for

an ordinary resolution by article 135(2):", and immediately thereafter

there shall be added the following new proviso

"Provided that the memorandum or articles, or an

extraordinary resolution of a company may permit either

(a) the board of directors to issue shares up to a

maximum amount as may be specified in the same

memorandum or articles, or extraordinary resolution,

which permission shall be for a maximum period of five

years, renewable by ordinary resolution for further

maximum periods of five years each; or

(b) the general meeting to authorise by ordinary

resolution the board of directors to issue shares up to a

maximum amount as may specified in the same

memorandum or articles, or in the extraordinary

resolution, which permission shall be for a maximum

period of five years, renewable by ordinary resolution for

further maximum periods of five years each.";

(b) sub-article (2) thereof shall be deleted, and sub-

articles (3), (4), (5) and (6) shall be renumbered as sub-articles

(2), (3), (4) and (5) respectively;

(c)

sub-article (2) thereof, as renumbered, shall be

substituted by the following

"(2) Where there are several classes of shares, any

resolution referred to in sub-article (1) shall be subject to a

separate vote for each class of shareholders whose rights

are affected by such resolution, and the provisions relating

to the majority required for the resolution shall apply for

each class.";

(d) in sub-article (3) thereof, as renumbered, for the

words "referred to in sub-articles (1), (2) and (3)", there shall be

substituted the words "referred to in sub-articles (1) and (2)";

(e)

in sub-article (4) thereof, as renumbered, for the

words "The provisions of sub-articles (1) to (4)", there shall be

substituted the words "The provisions of sub-article (1) to (3)";

and

(f)

sub-article (5) thereof, as renumbered, shall be

substituted by the following

"(5) Where an increase in the issued share capital

is not fully taken up, that issue shall be deemed not to have

taken effect

Provided that if the conditions of the issue so

provide, the issued share capital shall be increased by the

amount of subscriptions received.".

In the second proviso to article 89 of the principal Act, for

the words "Provided further that paragraph (e) shall also apply to a

limited liability company established outside the Community whose

securities are admitted to trading", there shall be substituted the

words "Provided further that paragraph (e) shall also apply to a

company established outside the European Union and the EEA and

whose securities are admitted to trading".

In paragraph (d) of sub-article (1) of article 106 of the

principal Act, for the words "shall not exceed ten per cent of the

issued share capital;", there shall be substituted the words "shall not

exceed fifty per cent of the issued share capital;".

In the proviso to sub-article (3) of article 107 of the

principal Act, for the words "may be effected by the company in the

meantime.", there shall be substituted the words "may be effected by

the company in the meantime:", and immediately thereafter there

shall be added the following new proviso

"Provided further that this sub-article shall not apply where

the company has acquired the shares otherwise than for valuable

consideration.".

The first proviso to paragraph (b) of sub-article (3) of

article 182 of the principal Act shall be substituted by the following

"Provided that for the purpose of determining whether a

company carries on business or has business interests outside

Malta as aforesaid, interests or holdings held in a company

referred to in this sub-article, and income derived therefrom,

shall, for the purposes of this sub-article, be deemed to

constitute business interests outside Malta:".

In sub-article (1) of article 183 of the principal Act, for the

words "prescribed by article 182.", there shall be substituted the

words "prescribed by article 182. Where a copy of the annual

accounts, auditors’ report and directors’ report is delivered to the

Registrar by electronic means, without prejudice to the requirements

of articles 176(3), 178(3) and 179(6), such electronic copy shall be

authenticated in accordance with article 82.".

In sub-article (2) of article 184 of the principal Act, for the Amendment of

words "by electronic means, in addition to the manner of signing laid article

the principal

down in this sub-article, such annual return may be signed by an Act.

individual specifically authorised", there shall be substituted the

words "by electronic means it may be signed by one director or the

company secretary or by an individual specifically authorised".

Article 187 of the principal Act shall be amended as Amendment of

article 187 of

follows

the principal

Act.

(a)

in sub-article (2) thereof, for the words "official

closing middle rate issued by the Central Bank of Malta for that

date.", there shall be substituted the words "official euro

reference middle exchange rate published by the European

Central Bank, or the indicative middle exchange rate published

by the Central Bank of Malta, as the case may be, for that date.";

and

(b) in sub-article (4) thereof, for the words "official

closing middle rate issued by the Central Bank of Malta.", there

shall be substituted the words "official euro reference middle

exchange rate published by the European Central Bank, or the

indicative middle exchange rate published by the Central Bank

of Malta, as the case may be.".

In the proviso to article 210 of the principal Act, for the Amendment of

words "or otherwise purports to deprive the auditors of the right article

the principal

granted to them by virtue of the provisions of article 155", there shall Act.

be substituted the words "or otherwise purports to deprive the

auditors of the right to attend and be heard at any general meeting of

the company on any part of the business of the meeting which

concerns them as auditors".

In sub-article (1) of article 212 of the principal Act, for the Amendment of

words "its main trading activity", there shall be substituted the words article

the principal

"its main activity".

Act.

Article 225 of the principal Act shall be amended as Amendment of

article 225 of

follows

the principal

Act.

(a)

in sub-article (1) thereof, for the words "The

Minister shall appoint an individual to be the official receiver"

there shall be substituted the words "The Minister, acting on the

advice of the Malta Financial Services Authority, shall appoint a

senior official of the said Authority to be the official receiver";

(b) sub-article (2) thereof shall be substituted by the

following

"(2) The official receiver may authorise in writing

any individual to perform any of the functions assigned to

the official receiver under this Act or any other law."; and

(c)

sub-article (3) thereof shall be substituted by the

following

"(3) Notwithstanding anything to the contrary

contained in this Act or any other law, the official receiver

and any other individual authorised in terms of sub-article

(2), shall be exempt from any personal liability

whatsoever, including any liability in damages for

anything done or omitted to be done in the discharge or

purported discharge of any of his functions under this Act

or under any other law, or otherwise in the exercise of his

official duties, unless the act or omission is shown to have

been done or omitted to be done, as the case may be, in bad

faith.".

Article 229 of the principal Act shall be amended as

(a)

sub-article (1) thereof shall be substituted by the

following new sub-article

"(1) The official receiver, by virtue of his office

and upon notification by the Court, becomes the liquidator

of the company and continues in office until another

person becomes liquidator under the provisions of this

Title, and shall, upon notification by the Court, be the

liquidator during any vacancy."; and

(b) sub-article (2) thereof shall be substituted by the

following new sub-article

"(2) The official receiver shall, within fourteen

days of notification by the court, deliver an authenticated

copy of such notification to the Registrar for registration.".

Sub-article (2) of article 236 of the principal Act shall be

substituted by the following

"(2)

The official receiver and any person appointed as

liquidator by the Court shall be remunerated out of the assets of

the company or otherwise, and on such basis as the Court may

direct.".

In sub-article (2) of article 241 of the principal Act, for the Amendment of

words "If any such liquidator retains for more than ten days a sum article

the principal

exceeding four hundred and sixty-five euro and eighty-seven cents Act.

(465.87)", there shall be substituted the words "If any such liquidator

retains for more than ten days, other than in a bank account

mentioned in sub-article (1), a sum exceeding five hundred euro

(500)".

Article 258 of the principal Act shall be amended as Amendment of

article 258 of

follows

the principal

Act.

(a)

in paragraph (j) of sub-article (2) thereof, for the

words "the remuneration of the liquidator.", there shall be

substituted the words "the remuneration of the official receiver

and of the liquidator."; and

(b) immediately after sub-article (2) thereof, there shall

be added the following new sub-article

"(3) For the purposes of sub-article (2), "official

receiver" shall include any individual authorised in terms

of article 225(2).".

Sub-article (4) of article 374 of the principal Act shall be Amendment of

article 374 of

deleted.

the principal

Act.

In sub-article (1) of article 400 of the principal Act, for the Amendment of

words "acting on the advice of the competent authority under the article

the principal

Malta Financial Services Authority Act,", there shall be substituted Act.

the words "acting on the advice of the Malta Financial Services

Authority,".

Article 425 of the principal Act shall be amended as Amendment of

article 425 of

follows

the principal

Act.

(a)

sub-article (6) thereof shall be deleted; and

(b) sub-articles (7), (8) and (9) thereof shall be

renumbered sub-articles (6), (7) and (8) respectively.

PART VIII

AMENDMENTS TO THE INSURANCE BUSINESS ACT

This Part amends and shall be read and construed as one

with the Insurance Business Act, hereinafter in this Part referred to as

"the principal Act".

Article 4 of the principal Act shall be amended as follows

(a)

sub-articles (3) and (4) thereof shall be renumbered

as sub-articles (4) and (5) respectively; and

(b) immediately after sub-article (2) thereof, there shall

be added the following new sub-article

"(3) The competent authority may make insurance

rules as may be required for the purpose of implementing

the guidelines and recommendations issued by the

European Insurance and Occupational Pensions Authority,

under Article 16 of Regulation (EU) No. 1094/2010 of the

European Parliament and of the Council of the 24

November 2010 establishing a European Supervisory

Authority (European Insurance and Occupational Pensions

Authority) amending Decision No. 716/2009/EC and

repealing Commission Decision 2009/79/EC, on interim

measures for the preparation of the implementation of

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) (recast).".

Article 64 of the principal Act shall be amended as

follows

(a)

in sub-article (5) thereof, for the words "including

the conditions under which the activities of such vehicles shall

be carried on.", there shall be substituted the words "including

the conditions under which the activities of such vehicles shall

be carried on. Any such regulations may provide for exemptions

from any provisions of this Act or of any other law, subject to

such modifications, variations and conditions as may be

specified therein, and in particular may provide that in so far as

any of the provisions of the regulations are inconsistent with the

provisions of this Act or of any other law, the provisions of the

regulations shall prevail, and the provisions of this Act or of any

other law shall, to the extent of the inconsistency, not apply.";

and

(b) in sub-article (7) thereof, for the words "or any other

similar measure relevant for the purposes of this Act.", there

shall be substituted the words "or any other similar measure

relevant for the purposes of this Act. Any such regulations made

to transpose any requirement or provision as may arise under a

Directive, Regulation or Decision of the European Union or any

other similar measure may provide for exemptions from any

provisions of this Act or of any other law, subject to such

modifications, variations and conditions as may be specified

therein, and in particular may provide that in so far as any of the

provisions of the regulations are inconsistent with the

provisions of this Act or of any other law, the provisions of the

regulations shall prevail, and the provisions of this Act or of any

other law shall, to the extent of the inconsistency, not apply.".

PART IX

AMENDMENTS TO THE PREVENTION OF FINANCIAL

MARKETS ABUSE ACT

This Part amends and shall be read and construed as one Amendments to

with the Prevention of Financial Markets Abuse Act, hereinafter in the

of Financial

this Part referred to as "the principal Act".

Markets Abuse

Act.

In sub-article (1) of article 2 of the principal Act, Amendment of

immediately after the definition "EEA State", there shall be added the article

principal Act.

following new definition

" "ESMA" means the European Securities and Markets

Authority established by Regulation (EU) No. 1095/2010 of the

European Parliament and of the Council of the 24 November

2010;".

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

article 20 of the

follows

principal Act.

(a)

in sub-article (3) thereof, immediately after the

words "for the purpose of carrying out its duties in the

investigation and detection in terms of the Market Abuse

Directive,", there shall be added the words "including a request

by the foreign authority for them to accompany officers,

employees or other agents of the competent authority during the

course of an investigation,"; and

(b) immediately after sub-article (6) thereof, there shall

be added the following new sub-article

"(7) Without prejudice to Article 258 of the Treaty

on the Functioning of the European Union, where a request

for information, co-ordination of efforts or other form of

collaboration, including a request to accompany officials

of the foreign authority during the course of an

investigation in terms of the Market Abuse Directive,

made by the competent authority to a foreign authority in

terms of this article is not acted upon within a reasonable

time or is rejected, the competent authority may refer such

rejection or absence of action to ESMA within a

reasonable timeframe.".

Immediately after article 20 of the principal Act, there

shall be added the following new article

20A. The competent authority shall

" Collaboration

with ESMA.

collaborate with ESMA for the purposes of

the Market Abuse Directive in accordance

with Regulation (EU) No 1095/2010 of the

European Parliament and of the Council of

the 24 November 2010, and in particular it

shall forward to ESMA, without delay, all

information necessary for ESMA to carry out

its duties in accordance with Article 35 of the

said Regulation.".

Article 22 of the principal Act shall be amended as

(a)

in sub-article (3) thereof, for the words "Upon the

conclusion of any appeal proceedings in terms of article 23, or

the lapse of time required to lodge such an appeal, the

competent authority may,", there shall be substituted the words

"The competent authority may,";

(b) sub-article (5) thereof shall be renumbered as sub-

article (6);

(c)

immediately after sub-article (4) thereof, there shall

be added the following new sub-article

"(5) Where the competent authority has disclosed

an administrative measure or sanction to the public in

terms of sub-article (3), it shall contemporaneously report

that fact to ESMA."; and

(d) immediately after sub-article (6) thereof, as

renumbered, there shall be added the following new sub-article

"(7) The competent authority shall provide ESMA

annually with aggregated information regarding all

administrative measures and sanctions imposed in terms of

this Act and any applicable regulations made thereunder.".

PART X

AMENDMENTS TO THE SECURITISATION ACT

This Part amends and shall be read and construed as one Amendments to

with the Securitisation Act, hereinafter in this Part referred to as "the the

Securitisation

principal Act".

Act.

Article 5 of the principal Act shall be amended as follows

Amendment of

article 5 of the

principal Act.

(a)

for the words "assumed by the securitisation vehicle,

the securitisation vehicle shall not", there shall be substituted

the words "assumed by the securitisation vehicle, but without

prejudice to article 5A, the securitisation vehicle shall not";

(b) for the words "the Financial Institutions Act, and the

Insurance Business Act.", there shall be substituted the words

"the Financial Institutions Act and, save for what is provided in

article 5A, the Insurance Business Act."; and

(c)

the proviso thereto shall be substituted by the

following new proviso

"Provided that nothing contained

in this article shall affect any of the

provisions of the Income Tax Act and

the Income Tax Management Act.";

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

article to the

be added the following new article

principal Act.

" Non-

5A. Unless otherwise provided in the

applicability.

Insurance Business Act or in any regulations

issued thereunder, the provisions of this Act

shall not apply to a reinsurance special

purpose vehicle established and regulated by

any regulations made under the Insurance

Business Act in terms of article 64 of the said

Act

Provided that nothing contained in this

article shall affect any of the provisions of the

Income Tax Act and the Income Tax

Management Act in relation to such

securitisation vehicles.".

PART XI

AMENDMENTS TO THE RETIREMENT PENSIONS ACT

(1) This Part amends and shall be read and construed as

one with the Retirement Pensions Act, hereinafter in this Part referred

to as "the principal Act".

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

for Finance may by notice in the Gazette establish, and different dates

may be so established for different provisions and different purposes

thereof.

Subarticle (2) of article 3 of the principal Act shall be

amended as follows

(a)

in subparagraph (ii) thereof, for the words

"employed by the employer.", there shall be substituted the

words "employed by the employer:"; and

(b) immediately after subparagraph (ii) thereof, as

amended, there shall be added the following new proviso

"Provided that a scheme or arrangement described

in paragraph (a) may, by written notice to the competent

authority, apply to be considered as a scheme for the

purposes of this Act.".

Passed by the House of Representatives at Sitting No. 103 of the

16th December, 2013.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk to the House of Representatives