ACT No. XXV of 2015 AN ACT To provide for the establishment of a Regulator to be known as the Regulator for Energy and Water Services and for the exercise by or on behalf of that Regulator of regulatory functions regarding services relating to energy and water, and to make

I assent.

M ARIE L OUISE

(L.S.)

C OLEIRO P RECA

President

31st July, 2015

ACT No. XXV of 2015

AN ACT To provide for the establishment of a Regulator to be

known as the Regulator for Energy and Water Services and for the

exercise by or on behalf of that Regulator of regulatory functions

regarding services relating to energy and water, and to make

provision with respect to matters ancillary thereto or connected

therewith.

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

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same as follows:-

PART I

PRELIMINARY

(1) The short title of this Act is the Regulator for Energy Short title,

scope and

and Water Services Act, 2015.

commencement.

(2) The purpose of this Act is to establish a Regulator to be

known as the Regulator for Energy and Water Services which shall

exercise functions relating to energy and water resources.

(3) This Act shall not apply to matters relating to mineral

resources and to the legislation listed in the Second Schedule which

shall continue to be regulated by the Malta Resources Authority under

the provisions of article 43 of this Act.

(4) The provisions, in this Act, where it is specifically stated

that such provisions shall come into force at a later date, as well as the

provisions of article 5(1)(l) shall come into force on such date as the

Minister responsible for energy may establish, by notice in the

Gazette.

(Article 41)

Water Supply Regulations (S.L. 423.03)

Maintenance of Minimum Stocks of Crude Oil and, or Petroleum

Products Regulations (S.L. 423.17)

Electricity Transit (Grid Requirements) Regulations (S.L. 423.18)

Natural Gas Market Regulations (S.L. 423.21)

Electricity Market Regulations (S.L. 423.22)

Water Supply and Sewerage Services Regulations (S.L. 423.23)

Energy Efficiency and Cogeneration Regulations (S.L. 423.27)

Biofuels and Bioliquids Market Regulations (S.L. 423.24)

Petroleum for the Inland Wholesale Fuel Market, Bottling of LPG

and Primary Storage Facilities Regulations (S.L. 423.28)

Quality of Fuels Regulations (S.L. 423.29)

Authorisations (Suspension, Refusal and Revocation) Regulations

(S.L. 423.30)

Liquefied Petroleum Gas Market Regulations (S.L. 423.31)

Energy End-use Efficiency and Energy Services Regulations (S.L.

423.34)

Bunkering (Authorisation) Regulations (S.L. 423.42)

Petroleum for the Inland (Retail) Fuel Market Regulations (S.L.

423.37)

Guarantees of Origin of Electricity from High Efficiency

Cogeneration and Renewable Energy Sources Regulations (S.L.

423.38)

Electrical Installations Regulations (S.L. 423.39)

Autogas (Installation and Certification) Regulations (S.L. 423.44)

Feed-in Tariffs Scheme (Electricity Generated from Solar

Photovoltaic Installations) Regulations (S.L. 423.46)

Biofuels (Sustainability Criteria) Regulations (S.L. 423.47)

Control of Swimming Pools Regulations (S.L. 244.01)

Promotion of Energy from Renewable Sources Regulations (S.L.

423.19)

Control of Water Pumps and Wells Order (S.L. 423.02)

Water Economy Regulations (S.L. 423.04)

Water Services

(Establishment

of

Penalties)

Regulations

(S.L.423.11)

Sewer Discharge Control Regulations (S.L. 423.15)

Electricity Supply Regulations (S.L. 423.01)

Registration of Drilling Rigs Regulations (S.L.423.13)

In this Act, unless the context otherwise requires -

"authorisation" includes any licence or permit however so

described issued by or under this Act to operate, provide or carry out

any activity or operation relating to energy and water and, in relation

to services and service providers of such services, means a permit,

licence, warrant, appointment, concession or decision concerning

access to a service activity or any other activity the exercise of which

relates to energy and water resources;

"authorisation scheme" means any authorisation or other

procedure of an administrative nature, under which a provider or

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

activity in question and obtain from a competent authority

authorisation concerning access to a service activity or the exercise

thereof;

"authorised provider" means any person who has a valid

authorisation to operate, provide or carry out any activity or operation

or to provide any service relating to energy and water;

"Board" means the Board of the Regulator appointed under

article 3(2);

"Chairman" means Chairman of the Regulator for Energy and

Water Services and includes, in the circumstances mentioned in

article 3(3), the Deputy Chairman or other person appointed to act as

Chairman;

"Chief Executive Officer" means the Chief Executive Officer

appointed under article 6(7);

"contractor" means a person acting in pursuance of an

agreement entered into with the Regulator for Energy and Water

Services or in accordance with article 6(5);

"decision" includes any determination, measure, order,

requirement or specification however so described made by the

Regulator for Energy and Water Services and the word "decision"

shall be construed accordingly;

"directive" means a directive issued by the Regulator for Energy

and Water Services in accordance with the procedures as may be

prescribed by regulations made under this Act;

"Directorates" means such directorates as are or may be

established under article 6;

"distribution" in relation to electrical energy, means the

transport of electricity on the medium-voltage and low-voltage

distribution systems with a view to its delivery to customers;

"distribution system operator" means a person responsible for

operating, ensuring the maintenance of and, if necessary, developing

the distribution system in a given area and, where applicable, its

interconnections with other systems and for ensuring the long-term

ability of the system to meet reasonable demands for the distribution

of electricity;

"electrical energy" means electrical energy when generated,

transmitted, distributed, supplied or used for any purpose except the

transmission of any communication or signal;

"employee" means a person employed by the Regulator for

Energy and Water Services;

"energy" includes electrical energy, fuels, heat when transmitted

as a commercial activity, and energy derived from renewable sources;

"establishment" means the actual pursuit of an economic

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

for an indefinite period and through a stable infrastructure from

where the business of providing services is actually carried out;

"fuel" includes coal, all hydrocarbons or hydrocarbon

derivatives normally used as fuels, including crude oil, fuels based on

hydrocarbons or coal, gaseous fuel, petroleum substitutes in liquid

form, liquids or gases produced from fermentation or similar

processes when intended for use as fuels, fuels produced from solid

waste; but does not include petroleum for the purposes of the

Petroleum (Production) Act;

"financial year" means any period of twelve months ending on

the 31st December

Provided that the first financial year of the Regulator for

Energy and Water Services shall begin on the coming into force of

this Act and shall end on the 31st December of the next following

year;

"gas" means all hydrocarbons in gaseous form whether in their

natural state or obtained from petroleum or produced chemically;

"Internal Market Information System” means the information

system through which competent authorities exchange information in

fulfilment of their obligations under Chapter VI of Directive 2006/

123/EC of the European Parliament and of the Council of 12

December 2006 on services in the internal market;

"Member State” means a Member State of the European Union;

"Member State of establishment" means the Member State in

whose territory the provider of the service concerned is established;

"Member State where the service is provided" means the

Member State where the service is supplied by a provider established

in another Member State;

"Minister" means the Minister responsible for energy and water

services;

"overriding reasons relating to the public interest" means the

reasons recognised as such in the case law of the European Court of

Justice in relation to Articles 43 and 49 of the Treaty, as they may

continue to evolve and including the following grounds

(a)

public policy, public security, public safety and

public health; provided that these grounds shall be interpreted

within the meaning of Articles 46 and Article 55 of the Treaty;

(b)

the maintenance of order in society;

(c)

social policy objectives;

(d)

the protection of the recipients of services;

(e)

consumer protection;

(f)

the prevention of fraud;

(g)

the prevention of unfair competition;

(h)

the protection of the environment;

"petroleum" means all natural hydrocarbons whether liquid or

gaseous including crude oil, natural gas, asphalt, ozokerite and

cognate substances and natural gasoline;

"public officer" in relation to article 18, has the same meaning

assigned to it by article 124 of the Constitution but does not include a

judge or a magistrate;

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

Member State or who benefits from rights conferred upon him by

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

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

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

"Regulator" means the Regulator for Energy and Water Services

established by article 3;

"resources" means the resources relating to energy and water

regulated by or under this Act;

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

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

"services of a general economic interest" means those services

declared by the Minister responsible for Competition as services of

general economic interest in terms of article 30 (3) of the Competition Cap. 379.

Act;

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

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

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

service;

"transmission" in relation to electrical energy, means the

transport of electricity on the high-voltage interconnected system

with a view to its delivery to final customers or distributors but does

not include supply;

"TSO" means a natural or legal person responsible for

operating, ensuring the maintenance of and, if necessary, developing

the transmission system in a given area and, where applicable, its

interconnections with other systems, and for ensuring the long-term

ability of the system to meet reasonable demands for the transmission

of electricity;

"Treaty"

means

the

Treaty

establishing

the

European

Community;

"Tribunal" means the Administrative Review

Tribunal

established by article 5 of the Administrative Justice Act;

"undertaking" means any person whether an individual, a body

corporate or unincorporate or any other entity, pursuing an economic

activity, and includes a group of undertakings;

"water", when used in relation to any practice, operation or

activity which is regulated by this Act, shall include drainage and

sewage services, but shall not include bottled table water.

PART II

ESTABLISHMENT, FUNCTIONS AND CONDUCT OF AFFAIRS

OF REGULATOR

(Articles 1, 41, 43, 44)

Notification of Groundwater Sources Regulations (S.L. 423.12)

Borehole Drilling and Excavation Works within the Saturated Zone

Regulations (S.L. 423.32)

Groundwater Abstraction (Metering) Regulations (S.L. 423.40)

Assessment and Management of Flood Risks Regulations (S.L.

423.41)

Users of Groundwater Sources (Application) Regulations (S.L.

423.45)

Lifecycle Greenhouse Gas Emissions from Fuels Regulations (S.L.

423.48)

European Union Greenhouse Gas Emissions Trading Scheme for

Stationary Installations Regulations (S.L. 504.66)

European Community Greenhouse Gas Emissions Trading Scheme

for Aviation Regulations (S.L. 504.115)

Passed by the House of Representatives at Sitting No. 294 of the

20th July 2015.

Ċ ENSU G ALEA

Deputy Speaker

R AYMOND S CICLUNA

Clerk of the House of Representatives

€4.50

(1) There shall be a body, to be known as the Regulator

for Energy and Water Services, hereinafter referred to as the

"Regulator" which shall consist of a Chairman and not less than four

and not more than six other members.

(2) The members of the Board of the Regulator shall be

appointed by the Minister for a term of five years or for such longer

period as may be specified in the instrument of appointment subject

to a maximum term of seven years but the members so appointed may

be re-appointed, once only, on the expiration of their term of office

for a term of five years or for such longer period as may be specified

in the instrument of appointment subject to a maximum term of seven

years.

An appropriate rotation scheme for the appointment of the

members of the Board of the Regulator shall be put in place, in terms

of which the end date of the term of office of the Board members is

not the same for all members.

(3) The Minister may designate one of the other members of

the Board of the Regulator as Deputy Chairman and the member so

designated shall have all the powers and perform all the functions of

the Chairman during his absence or inability to act as Chairman or

while the Chairman is on vacation or during any vacancy in the office

of Chairman; and the Minister may also, in any of the circumstances

aforesaid, appoint another person to act as Chairman and in such case

the foregoing provisions shall apply in respect of such person.

(4) A person shall not be qualified to hold office as a member

of the Board of the Regulator if he -

(a)

is a Minister, Parliamentary Secretary or a member

of the House of Representatives; or

(b)

is a judge or magistrate; or

(c)

has a financial or other interest in any enterprise or

activity which is likely to affect the discharge of his functions as

a member of the Board of the Regulator.

(5) Subject to the provisions of this article, the office of a

member of the Board of the Regulator shall become vacant -

(a)

at the expiration of his term of office; or

(b) if any circumstances arise that, if he were not a

member of the Board of the Regulator, would cause him to be

disqualified for appointment as such.

(6) A member of the Board of the Regulator may only be

removed from office by the Minister if such member is unfit to

continue in office for any one or more of the following reasons

(a)

if the member is found unable to act independently

from any market interests;

(b) if the member is found taking instructions or

directions from any other public or private entity in the exercise

of the regulatory functions assigned to the Regulator;

(c)

where such member has been found guilty of

misconduct under any law.

(7) If a member resigns or if the office of a member of the

Board of the Regulator is otherwise vacant or if a member is for any

reason unable to perform the functions of his office, the Minister shall

take all appropriate measures to fill the vacancy so created, subject to

the provisions of sub-articles (4), (5) and (6).

(8) Any member of the Board of the Regulator who has any

direct or indirect interest in any contract made or proposed to be made

by the Regulator, not being an interest which disqualifies such

member from remaining a member, shall disclose the nature of his

interest at the first meeting of the Board of the Regulator after the

relevant facts have come to his knowledge; such disclosure shall then

be recorded in the minutes of the meeting of the Board of the

Regulator, and the member having an interest as aforesaid shall

withdraw from any meeting at which such contract is discussed.

Where the interest of the member is such as to disqualify him from

remaining a member, he shall report the fact immediately to the Board

of the Regulator and tender his resignation. Any disclosure under this

sub-article shall be communicated by the Regulator to the Minister

without delay.

The Regulator shall be responsible for the regulation of Objectives of

the Regulator.

energy and water services and resources to ensure

(a)

greater focus on and increased consumer protection;

and

(b) the independence of the Regulator as required by

various EU directives including EU Directive 2009/72/EC

concerning common rules for the internal market in electricity

and EU Directive 2009/73/EC concerning common rules for the

internal market in natural gas and the Energy Charter Treaty.

(1) The Regulator shall have, and shall independently

and impartially implement and administer, the following functions

(a)

to regulate, monitor and keep under review all

practices, operations and activities relating to energy and water

services and resources;

(b) to grant any licence, permit or other authorisation,

for the carrying out of any operation or activity relating to

energy and water services and resources;

(c)

to regulate and secure interconnectivity for the

production, transmission and distribution of the services or

products regulated by or under this Act;

(d) to promote fair competition in all such practices,

operations and activities and to monitor the occurrence of

restrictive contractual practices, and where appropriate in

collaboration with the authority responsible for competition;

(e)

to establish minimum quality and security standards

for any of the said practices, operations and activities and to

regulate such measures as may be necessary to ensure public

and private safety;

(f)

to secure and regulate the development and

maintenance of efficient systems in order to satisfy, as

economically as possible, all reasonable demands for the

provision of the services regulated by or under this Act;

(g) to regulate the price structure for any activity

regulated by this Act and where appropriate to establish the

mechanisms whereby the price to be charged for the acquisition,

production, manufacture, sale, storage and distribution thereof

is determined;

(h) to establish the minimum qualifications to be

possessed by any person who is engaged or employed in any

activity regulated by or under this Act;

(i)

to ensure that international obligations entered into

by the Government relative to the matters regulated by or under

this Act are complied with, in particular, the implementation of

the regulatory functions envisaged in the Electricity and Gas

market directive and the Energy Charter Treaty;

(j)

to submit its opinion to Government on the

formulation of policy in relation to matters regulated by this

Act, and in particular in relation to such international

obligations;

(k) to promote the interests of consumers and other

users in Malta, particularly vulnerable consumers, especially in

respect of the prices charged for, and the quality and variety of

the services and, or products regulated by or under this Act;

(l)

to determine disputes in relation to matters regulated

by or under this Act;

(m) to undertake effective stakeholder and regulated

entity involvement and consultation when preparing its

positions and actions.

(2) The Regulator shall also independently and impartially

(a)

in relation to energy -

(i) regulate

the

harnessing,

generation,

distribution, transmission, supply and use of all forms of

energy; and

(ii) impose levies on energy produced by non-

renewable sources and grant subsidies in connection with

the production of energy from renewable sources and

energy efficiency;

(b)

in relation to water -

(i) secure and regulate the acquisition,

production, storage, distribution or other disposal of water

for domestic, commercial, industrial or other purposes;

(ii) secure and regulate the conservation,

augmentation and operation of water resources and the

sources of water supply;

(iii) secure and regulate the treatment, storage,

disposal, use or re-use, as appropriate, of sewage, waste

water, sludge and storm water run-off;

(iv) secure and regulate the provision of adequate

systems of public sewers and to ascertain their cleanliness,

safety and efficiency;

(c)

in relation to petroleum -

(i) secure that adequate provision and reserve

stocks of petroleum and gas is available at all times;

(ii) regulate the distribution, sale, exportation or

disposal in any other manner of fuels supplied for

bunkering; for the purposes of this sub-paragraph

"bunkering" and "fuel" shall have the same meaning

assigned to them by article 2 of the Bunkering (Fuels) Tax

Act;

(iii) manage national emergency stocks and

specific stocks for which purpose the Regulator is hereby

designated the Central Stock Holding Entity for security

stock in accordance with Council Directive 2009/119/EC

of 14 September 2009 imposing an obligation on Member

States to maintain minimum stocks of crude oil and/or

petroleum products

Provided that matters falling under sub-articles (1) and (2)

which shall have been pending before the Malta Resources Authority

in terms of the Malta Resources Authority Act from before the

coming into force of this Act shall forthwith be transferred onto the

Regulator without the need of any formalities other than the coming

into force of this Act.

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

the exercise of the functions of any authority established by or under

any law in relation to public health, competition and the environment

or any other matter falling within the functions of any such authority.

(4) The Regulator may require any person or authorised

provider to provide it with any information, including financial

information, that the Regulator considers necessary for the purpose of

ensuring compliance with the provisions of this Act, regulations

prescribed thereunder and decisions or directives made in accordance

with this Act, or any other law or regulations prescribed thereunder

which the Regulator is entitled to enforce. Any person or authorised

provider who fails or refuses to provide such information shall be in

contravention of this Act and shall be liable to the imposition of an

administrative penalty as may be prescribed by the Regulator.

(1) Subject to the other provisions of this Act the affairs Conduct of the

and business of the Regulator shall be the responsibility of the affairs

Regulator.

Regulator itself but save as aforesaid, the executive conduct of the

Regulator, its administration and organisation and the administrative

control of its officers and employees, shall be the responsibility of the

Chief Executive Officer of the Regulator, who shall also have such

other powers as may from time to time be delegated to him by the

Regulator and who shall be wholly accountable to the Regulator.

(2) The Regulator shall establish Directorates, Units, Divisions

and Sections, as appropriate, which shall be vested with such

responsibilities as the Regulator may decide and which it may vary

from time to time, as it deems appropriate.

(3) The Regulator shall exercise its functions through the

Directorates, Units, Divisions and Sections so established and for

such purpose it shall vest in each of the Directorates, Units, Divisions

and Sections so established and subject to the overall supervision and

control of the Chief Executive Officer, such of its functions as relate

or are ancillary to the matters for which it is responsible so as to

enable the said Directorates, Units, Divisions and Sections to give

effect to the policies of the Regulator and to otherwise discharge

effectively and efficiently the functions of the Regulator in its

respective area of operation.

(4) Each of the Directorates, Units, Divisions and Sections so

established shall be headed by an individual who shall either be a

public officer detailed for duty with the Regulator or an employee of

the Regulator or a person detailed to work for the Regulator in

accordance with an agreement made between the Regulator and a

public or private undertaking, in either case having adequate

experience or knowledge in the respective area of operation.

(5) The Regulator and each of the Directorates, Units,

Divisions and Sections may exercise any one or more of their

functions either directly or through any of their officers or employees

or through an agency authorised for the purpose, or through a

contractor or other person with whom an agreement for the

performance of any one or more of such functions has been entered

into

Provided that nothing in this sub-article shall authorise the

Regulator to contract out any of its regulatory or licensing functions.

(6) Where in this Act anything is to be done by or against or

with respect to the Regulator, or any notice is to be or may be given to

the Regulator, any such thing or notice may also be done by or against

or with respect to or be given to the Directorate, Unit, Division and

Section under whose jurisdiction the matter falls by reason of a

delegation of function to such Directorate, Unit, Division and Section;

and for the purposes aforesaid any reference in this Act to the

Regulator includes a reference to the appropriate Directorate, Unit,

Division and Section.

(7) The Chief Executive Officer and the heads of the

Directorates, Units, Divisions and Sections shall be appointed by the

Regulator for a period to be determined by the Regulator which shall

in no case be less than three years

Provided that the Chief Executive Officer shall be

appointed by the Minister.

(8) The Chief Executive Officer shall attend all the meetings

of the Regulator but shall not vote at such meetings

Provided that the Regulator may if it so deems fit require

the Chief Executive Officer not to attend any of the meetings or any

part of a meeting.

(9) The Chief Executive Officer shall be responsible for the

implementation of the objectives of the Regulator in the exercise of

its functions and without prejudice to the generality of the foregoing

he shall -

(a)

assume full responsibility for the overall supervision

and control of the Directorates, Units, Divisions and Sections;

(b) assign to each Directorate, Unit, Division and

Section such duties which he considers necessary or expedient;

(c)

co-ordinate the workings of the Directorates, Units,

Divisions and Sections;

(d) develop the necessary strategies

for

the

implementation of the objectives of the Regulator;

(e)

advise the Regulator on any matter it may refer to

him or on any matter which he considers necessary or

expedient; and

(f)

perform such other duties as the Regulator may

assign to him from time to time.

(1) The Minister may, in relation to matters that appear Relations

to him to affect the public interest, from time to time communicate to between

Minister and the

the Regulator directions in writing of a general character, not related Regulator.

to the regulatory powers of the Regulator and not inconsistent with

the provisions of this Act, and the Regulator shall, as soon as may be,

give effect to all such directions in such a manner as to respect, in

particular, the provisions of article 5 such that the independent

regulatory powers of the Regulator are in no way prejudiced.

(2) The Regulator shall afford to the Minister facilities for

obtaining information with respect to its property and activities and

furnish him with returns, accounts and other information with respect

thereto, and afford to him facilities for the verification of information

furnished, in such manner and at such times as he may reasonably

require.

(3) All communications between the Minister and the

Regulator shall be conducted in such a manner as to ensure that at no

time shall the independence of the Regulator in the exercise of its

functions be, or be perceived to be, in any way prejudiced.

(1) The Regulator shall be a body corporate having a Legal

distinct legal personality and shall be capable, subject to the personality

representation

provisions of this Act, of entering into contracts, of acquiring, holding of

Regulator.

and disposing of any kind of property for the purposes of its

functions, or suing and being sued, and of doing all such things and

entering into all such transactions as are incidental or conducive to

the exercise or performance of its functions under this Act, including

the lending or borrowing of money.

(2) The legal representation of the Regulator shall jointly vest

in the Chairman and the Chief Executive Officer

Provided that the Regulator may appoint any one or more

of its members or of the officers or employees of the Regulator to

appear in the name and on behalf of the Regulator in any judicial

proceedings and in any act, contract, instrument or other document

whatsoever

Provided further that in respect of any matter falling within

the functions vested in a Directorate, the legal and judicial

representation of the Regulator shall also vest in the head of the

Directorate or in such other member, officer or employee of the

Regulator, as the Regulator may appoint or authorise for the purpose.

(3) Any document purporting to be an instrument made or

issued by the Regulator and signed by the Chairman or by the Chief

Executive Officer or by a head of a Directorate in relation to any

matter vested in the relative Directorate by the Regulator shall be

received in evidence and shall, until the contrary is proved, be

deemed to be an instrument made or issued by the Regulator.

(1) The meetings of the Regulator shall be called by the

Chairman as often as may be necessary but at least once a month

either on his own initiative or at the request of any two of the other

members.

(2) Half the number of members for the time being

constituting the Regulator shall form a quorum. Decisions shall be

adopted by a simple majority of the votes of the members present and

voting. The Chairman, or in his absence the Deputy Chairman or

other person appointed to act as Chairman, shall have an initial vote

and in the event of an equality of votes, a casting vote. Without

prejudice to the other requirements of this Act, no decision shall be

valid which is not supported by at least two members of the

Regulator.

(3) Subject to the provisions of this Act the Regulator may

regulate its own procedure.

(4) Subject to the foregoing provisions of this article, no act or

proceeding of the Regulator shall be invalidated merely by reason of

the existence of any vacancy among the members.

(5) All acts done by any person acting in good faith, as a

member of the Regulator, shall be valid as if he were a member

notwithstanding that some defect in his appointment or qualification

be afterwards discovered. No act or proceeding of the Regulator shall

be questioned on the ground of the contravention, by a member, of the

provisions of article 3(8).

PART III

POWERS OF THE REGULATOR

(1) Save as may otherwise be prescribed, no person

shall carry out any activity or operation, or be engaged in such

activity or operation, relating to energy and water services and

resources unless such person is in possession of a licence, permit or

other authorisation of the Regulator under this Act.

(2) Any person who carries out any such activity without a

licence or who acts in breach of any condition of such licence, shall

be guilty of an offence and shall be liable on conviction to a fine

(multa) not exceeding one hundred and fifteen thousand euro

(€115,000) or to imprisonment for a term not exceeding two years, or

to both such fine and imprisonment.

(3) Saving the provisions of article 469A of the Code of Cap. 12.

Organization and Civil Procedure no appeal shall lie from any

decision of the Regulator under sub-article (1).

(4) The provisions of this article shall not apply to any cistern

or well in any dwelling house, which is required to be constructed

under any law, and the provisions of this article shall not be deemed

to require any licence or permit for the construction and maintenance

of any such cistern or well, so however that this construction shall not

preclude the Regulator from exercising any of its functions and

powers under this Act for the purpose of ensuring that water is not

wasted or misused and that no damage is caused to the aquifer or

elsewhere.

(5) An authorisation granted to a person under this Act shall

not relieve such a person from the requirement at law to apply for any

other authorisation however so described, or from any other

obligation arising under any other law

Provided that matters falling under this article which shall

have been pending before the Malta Resources Authority in terms of

the Malta Resources Authority Act from before the coming into force Cap. 423.

of this Act shall forthwith be transferred onto the Regulator without

the need of any formalities other than the coming into force of this

Act.

(1) Any officer or employee of the Regulator so Enforcement

authorised may, at all reasonable times, enter any premises, vehicle, powers

Regulator.

vessel or any other place, for the purposes of -

(a)

the making of such inspections, tests, measurements,

lifting of samples or to ascertain that nothing contrary to the

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

any term or condition attached to any licence, permit or

authorisation issued under this Act is being carried out;

(b) ascertaining or reproducing such data or information

as the Regulator may require.

(2) Any person who obstructs or impedes any officer or

employee of the Regulator in the exercise of his duties under this Act

shall be guilty of an offence and shall, on conviction, be liable to

imprisonment not exceeding eighteen months or to a fine (multa) of

not more than seventy thousand euro (€70,000) or to both such fine

and imprisonment.

(1) The Regulator may impose an administrative Imposition of

penalty upon any person who infringes any provision of this Act, administrative

penalties.

regulations prescribed thereunder or of any other law which the

Regulator is entitled to enforce, or who fails to comply with any

directive or decision given by the Regulator whether under this Act,

regulations prescribed thereunder or under any other law which the

Regulator is entitled to enforce, or who fails to comply with a legally-

binding decision of the Agency for the Cooperation of Energy

Regulators, or who fails to comply with any condition of any

authorisation granted under this Act.

(2) An administrative penalty imposed under sub-article (1)

shall not exceed

(a)

one hundred thousand euro (€100,000) for each

contravention and, or six hundred euro (€600) for each day of

non-compliance, from the date of the decision given by the

Regulator; and, or

(b) in the case of an undertaking (including a vertically

integrated undertaking) or a body corporate, up to ten per

centum of the total turnover concerned in the preceding business

year

Provided that in the case of an undertaking,

including a vertically integrated undertaking or a body

corporate, a fine of up to ten per centum of the annual turnover

concerned in the preceding business year, which amount

exceeds one hundred thousand euro (€100,000) may, in any

such case be imposed.

(1) The Regulator, before recovering an administrative

penalty upon any person who infringes or fails to comply with -

(a)

any provision of this Act;

(b)

regulations made thereunder;

(c) any other law which the Regulator is entitled to

enforce;

(d) any directive or decision given by the Regulator

whether under this Act, regulations made thereunder or under

any other law which the Regulator is entitled to enforce; or

(e)

any condition of any authorisation granted under

this Act,

shall by judicial letter to the person concerned -

(i) give notice of the administrative penalty

being imposed by the Regulator;

(ii) give notice of the specific reason why such

penalty is being imposed;

(iii) give notice of the amount of the penalty;

(iv) demand that the person concerned rectify the

acts or omissions committed by such person where such

acts or omissions are capable of remedy and, or make

submissions to the Regulator within a specified time

Provided that such time may not be of more than

twenty days and of not less than five days from the date of

service of the judicial letter

Provided further that the person, against

whom an administrative penalty is imposed, shall be given

a reasonable opportunity during such period of time as may

be stipulated in the judicial letter to make submissions to

the Regulator and to propose any remedies that rectify the

acts or omissions required by the Regulator to be so

rectified where such acts or omissions are capable of

remedy.

(2) In the judicial letter mentioned in sub-article (1), the

Regulator may impose such conditions as it may consider reasonable

in the circumstances.

(3) If the person concerned remedies the infringement within

the period established by the Regulator in accordance with sub-article

(1), and agrees in writing to abide with any conditions that the

Regulator may impose, the Regulator shall desist from proceeding

any further

Provided that if the person concerned, after having been

bound in writing as stated above, fails to remedy the infringement

within the period established by the Regulator in accordance with

sub-article (1) or fails to abide with any conditions agreed to in

writing, the Regulator shall impose against such person an

administrative penalty for such failure, in addition to the

administrative penalty which is imposed for the infringement itself.

(4) If, after the lapse of the period mentioned in sub-article (1),

the Regulator considers that the person concerned has not given any

valid reasons to demonstrate why no administrative penalty should be

imposed against such person, the Regulator shall proceed to recover

such administrative penalty.

(5) Notwithstanding any other provision of this article, where

the Regulator has prima facie evidence that the infringement -

(a)

represents an immediate and serious threat to public

safety or public security or public health; or

(b) creates or may create serious economic or

operational problems for other providers of resources or for

consumers,

the Regulator may shorten the periods mentioned in subarticle (1)

Provided that the person against whom such administrative

penalty is imposed shall be given a reasonable opportunity to state

any views and propose any possible remedies.

(6) The judicial letter referred to in sub-article (1) shall, upon

the expiry of the time limit for appeal therefrom, and upon the service

of a copy thereof by means of a judicial act on the person liable to the

payment of the administrative penalty, constitute an executive title for

all effects and the purposes of article 253(a) of the Code of

Organization and Civil Procedure

Provided that if the person, against whom the judicial letter

has been issued, files an appeal before the Administrative Review

Tribunal, and concurrently with or before the filing of the appeal

requests the Administrative Review Tribunal to suspend the effects of

the judicial letter, then the Regulator shall desist from issuing a

judicial act as referred to in this sub-article until the request of

suspension has been determined, withdrawn or otherwise dealt with

Provided further that the Administrative Review Tribunal

shall determine any requests for suspension referred to in this sub-

article expeditiously. Before determining any such request the

Administrative Review Tribunal shall give the Regulator a reasonable

opportunity to reply and make its submissions, within a period of not

less than three working days.

(7) Interest at the rate of eight per cent per annum shall run as

from the date set by the Regulator for the payment of any

administrative penalty imposed by it. In cases where the

Administrative Review Tribunal or the Court of Appeal, as the case

may be, after having upheld an application to suspend the penalty

pending proceedings, finally decides that the administrative penalty

as imposed by the Regulator is due, such administrative penalty shall

be due together with any interests accrued thereon as from the date

originally set by the Regulator for payment including the period

during which the payment of the said penalty was suspended.

(8) The Regulator shall give its reasons for any decision taken

under this article.

(9) Notwithstanding the provisions of any other law, no

precautionary warrant or order shall be issued by any court restraining

the Regulator from the exercise of any of the powers conferred upon

it under this Act in relation to administrative penalties.

(10) In all cases where the Regulator imposes an administrative

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

person and such act or omission also constitutes a criminal offence,

no proceedings may be taken or continued against the said person in

respect of such criminal offence.

(11) An administrative penalty imposed by the Regulator upon

any person shall be considered a civil debt due to the Regulator.

(12) If any person knowingly avoids, obstructs or refuses

service of any judicial act issued under this article, such person shall

be guilty of an offence and shall be liable, on conviction, to a fine

(multa) of not more than seventy thousand euro (€70,000)

Provided that matters falling under this article which shall

have been pending before the Malta Resources Authority in terms of

the Malta Resources Authority Act from before the coming into force Cap. 423.

of this Act shall forthwith be transferred onto the Regulator without

the need of any formalities other than the coming into force of this

Act.

Where an administrative infringement breaches -

Administrative

infringements

by bodies

(a)

any provision of this Act;

corporate and

undertakings.

(b)

regulations made thereunder;

(c)

any other law which the Regulator is entitled to

enforce;

or any person -

(i)

fails to comply with any directive or decision given

by the Regulator whether under this Act, regulations made

thereunder or under any other law which the Regulator is

entitled to enforce; or

(ii) fails to comply with any condition of any

authorisation granted under this Act, and the infringement is

committed by an undertaking or body corporate and is proved to

have been committed with the consent, or involvement of, or to

be attributable to, any gross negligence on the part of a person

being a director, manager, secretary or other officer, however so

described, of such body corporate or undertaking or a person

who was purporting to act in any such capacity,

such person and such body corporate shall be responsible for the said

infringement and shall be jointly and severally liable for the payment

of any administrative penalty imposed by the Regulator as a

consequence thereof.

The provisions of article 466 of the Code of Organization

and Civil Procedure shall apply to the Regulator in the same manner

as they apply to Government Departments

Provided that matters falling under this article which shall

have been pending before the Malta Resources Authority in terms of

the Malta Resources Authority Act from before the coming into force

of this Act shall forthwith be transferred onto the Regulator without

the need of any formalities other than the coming into force of this

Act.

PART IV

OFFICERS AND EMPLOYEES OF THE REGULATOR

Without prejudice to the other provisions of this Act, the

appointment of officers and other employees of the Regulator shall be

made by the Regulator. The terms and conditions of employment

shall be established by the Regulator.

The Regulator shall appoint and employ, at such

remuneration and upon such time, terms and conditions as it may, in

accordance with article 16, determine, such officers and employees as

may from time to time be necessary for the due and efficient

discharge of the functions of the Regulator.

(1) The Principal Permanent Secretary, following the

direction of the Prime Minister, may from time to time, at the request

of the Regulator, direct that any public officer shall be detailed for

duty with the Regulator in such capacity and under such conditions

and with effect from such date as he may prescribe.

(2) The period during which a direction as aforesaid shall

apply to any officer specified therein shall, unless the officer retires

from the public service, or otherwise ceases to hold office at an earlier

date, or unless a different period is specified in such direction, end on

the happening of any of the following events

(a)

the acceptance by such officer of an offer of transfer

to the service of, and permanent employment with, the

Regulator made in accordance with the provisions of article 20;

or

(b) the revocation of such direction by the Principal

Permanent Secretary following the direction of the Prime

Minister.

(3) Where a direction as aforesaid is revoked by the Principal

Permanent Secretary in relation to any officer, the Principal

Permanent Secretary may, by further direction and following the

direction of the Prime Minister, detail such officer for duty with the

Regulator in such capacity and with effect from such date as may be

specified in the direction of the Principal Permanent Secretary, and

the provisions of sub-article (2) shall thereupon apply to the period of

duration of such detailing by any such further direction in relation to

such officer.

(1) Where any officer is detailed for duty with the Status of public

Regulator under any of the provisions of article 18, such officer shall, officers

for duty with the

during the time in which such direction has effect in relation to him, Regulator.

be under the administrative authority and control of the Regulator but

he shall for other intents and purposes remain and be considered and

treated as a public officer.

(2) Without prejudice to the generality of the foregoing, an

officer detailed for duty as aforesaid -

(a)

shall not during the time in respect of which he is so

detailed -

(i) be precluded from applying for a transfer to a

department of the Government in accordance with the

terms and conditions of service attached to the

Government appointment held by him at a date on which

he is so detailed for duty; or

(ii) be so employed that his remuneration and

conditions of service are less favourable than those which

are attached to the Government appointment held by him at

the date aforesaid or which would have become attached to

such appointment, during the said period, had such officer

not been detailed for duty with the Regulator

Provided that such terms and conditions shall

not be deemed to be less favourable because they are not in

all respects identical or superior to those enjoyed by the

officer concerned at the date of such detailing, if in the

opinion of the Prime Minister, such terms and conditions,

taken as a whole, offer substantially equivalent or greater

benefits; and

(b) shall be entitled to have his service with the

Regulator considered as service with the Government for the

purposes of any pension, gratuity, or benefit under the Pensions

Ordinance and the Widows’ and Orphans’ Pensions Act and for

the purpose of any other right or privilege to which he would be

entitled, and shall be liable to any liability to which he would be

liable, but for the fact of his being detailed for duty with the

Regulator

Provided that in assessing the pensionable

emoluments of such officer for the purposes of any law relating

to government service pensions, no account shall be taken of

any allowances, bonuses or gratuities paid to such officer by the

Regulator in excess of what he is entitled to as a public officer.

(3) Where an application is made as provided in sub-article

(2)(a)(i) the same consideration shall be given thereto as if the

applicant had not been detailed for service with the Regulator.

(4) The Regulator shall pay to the Government such

contributions as may from time to time be determined by the Minister

responsible for finance in respect of the cost of pensions and

gratuities earned by an officer detailed for duty with the Regulator as

aforesaid during the period in which he is so detailed.

(1) The Regulator may, with the approval of the Prime

Minister, offer to any officer detailed for duty with the Regulator

under any of the provisions of article 18 permanent employment with

the Regulator at a remuneration and on terms and conditions not less

favourable than those enjoyed by such officer at the date of such

offer.

(2) The terms and conditions comprised in any offer made as

aforesaid shall not be deemed to be less favourable merely because

they are not in all respects identical with or superior to those enjoyed

by the officer concerned at the date of such offer, if such terms and

conditions, taken as a whole, in the opinion of the Prime Minister

offer substantially equivalent or greater benefits.

(3) Every officer who accepts permanent employment with the

Regulator offered to him, under the provisions of sub-article (1) shall

for all purposes other than those of the Pensions Ordinance and of the Cap. 93.

Widows’ and Orphans’ Pensions Act, and saving the provisions of Cap. 58.

sub-article (6), be deemed to have ceased to be in service with the

Government and to have entered into service with the Regulator on

the date of his acceptance, and for the purposes of the said Ordinance

and of the said Act, so far as applicable to him, service with the

Regulator shall be deemed to be service with the Government within

the meanings thereof respectively.

(4) Every such officer as aforesaid who, immediately before

accepting permanent employment with the Regulator was entitled to

benefit under the Widows’ and Orphans’ Pensions Act, shall continue Cap. 58.

to be so entitled to benefit thereunder to all intents as if his service

with the Regulator were service with the Government.

(5) The Regulator shall pay to the Government such

contributions as may from time to time be determined by the Minister

responsible for finance in respect of the cost of pensions and

gratuities earned by an officer who has accepted permanent

employment with the Regulator as aforesaid during the period

commencing on the date of such officer’s acceptance.

(6) For the purposes of the Pensions Ordinance the Cap. 93.

pensionable emoluments of such public officer on retirement shall be

deemed to be the pensionable emoluments payable to an officer in

Government service in a grade and at an incremental level

corresponding to the post and incremental level at which the officer

retires from the Regulator.

(7) (a)

For the purposes of this article, posts and salary

grades with the Regulator shall be classified in the most nearly

corresponding grades and incremental levels in the service under the

Government by reference to job description, skills, responsibilities

and other analogous factors.

(b) The classification referred to in paragraph (a) shall

be carried out by a board composed of a chairman appointed by the

Ministry responsible for finance and two other members, one

appointed by the Minister responsible in general for personnel

policies in the public service and one appointed by the Regulator. The

classification shall be subject to the final approval of the Minister

responsible for finance.

(c)

Such classification shall take place within three

months of any adjustment of salaries of employees in Government

service and, or, of employees of the Regulator.

(d) No post shall be classified in a grade higher than that

of a Grade 3 in the service of the Government or such other grade that

the Minister responsible for finance may from time to time by notice

in the Gazette determine.

(e)

Without prejudice to article 113 of the Constitution,

no person may, following a classification as aforesaid, be entitled to

rights under the said Pensions Ordinance less favourable than those to

which he would have been entitled prior to such classification.

PART V

FINANCIAL PROVISIONS

(1) Without prejudice to the following provisions of this

article, the Regulator shall so conduct its affairs that so much of the

expenditure required for the proper performance of its functions shall,

as far as possible, be met out of its revenue.

(2) For such purpose the Regulator shall levy all fees, rates

and other payments prescribed and however so described or deemed

to be prescribed by or under this Act or any other law related to the

powers and functions of the Regulator.

(3) The Regulator shall also be paid by Government out of the

Consolidated Fund such sums as Parliament may from time to time

authorise to be appropriated to meet any of its expenditure that cannot

be met out of its revenue and the costs of specified works to be

continued or otherwise carried out by the Regulator, being works of

infrastructure or a similar capital nature.

(4) Any excess of revenue over expenditure shall, be applied

by the Regulator to the formation of reserve funds to be used for the

purposes of the Regulator; and without prejudice to the generality of

the powers given to the Minister by this sub-article, any direction

given by the Minister as aforesaid may order the transfer to the

Government, or the application in such manner as may be specified in

the direction, of any part of the fees, rates and other payments levied

in accordance with sub-article (2) or any such excess as aforesaid.

(5) Any funds of the Regulator not immediately required to

meet expenditure may be invested in such manner as may be decided

by the Regulator.

(1) For the purpose of carrying out any of its functions

under this Act, the Regulator may, in connection with the exercise of

its functions, borrow or raise money.

(2) The Regulator may also, from time to time, borrow, by

way of overdraft or otherwise, such sums as it may require for

carrying out its functions under this Act

Provided that for any amount in excess of one hundred and

twenty thousand euro (€120,000), there shall be required the approval

of the Minister in writing.

The Minister responsible for finance may, after Advances from

consultation with the Minister, make advances to the Regulator of Government.

such sums as he may agree to be required by the Regulator for

carrying out any of its functions under this Act, and may make such

advances on such terms and conditions as he may, after consultation

as aforesaid, deem appropriate. Any such advance may be made by

the Minister responsible for finance out of the Consolidated Fund,

and without further appropriation other than this Act, by warrant

under his hand authorising the Accountant General to make such

advance.

(1) The Minister responsible for finance may, for any Borrowing from

requirements of the Regulator of a capital nature, contract or raise Government.

loans, or incur liabilities, for such periods and on such terms and

conditions as he may deem appropriate; and any sums due in respect

of or in connection with any such loan or liability shall be a charge on

the Consolidated Fund.

(2) Notice of any loans, liabilities or advances made or

incurred under the foregoing provisions of this article shall be given

to the House of Representatives as soon as practicable and, in any

case, not later than eight (8) weeks after such loan, liability or

advance is made, or if at any time during that period the House is not

in session, within eight weeks from the beginning of the next

following session.

(3) Pending the raising of any such loan as is mentioned in

sub-article (1), or for the purpose of providing the Regulator with

working capital, the Minister responsible for finance may, by warrant

under his hand, and without further appropriation other than this Act,

authorise the Accountant General to make advances to the Regulator

out of the Treasury Clearance Fund under such terms as may be

specified by the Minister upon the making thereof.

(4) The proceeds of any loan raised for the purposes of making

advances to the Regulator, and any other moneys to be advanced to

the Regulator under this article, shall be paid into a fund specially

established for the purpose and which shall be known as the

"Regulator for Energy and Water Services Loan Fund".

(5) Sums received by the Accountant General from the

Regulator, in respect of advances made to the Regulator under sub-

article (3) shall be paid, as respects of amounts received by way of

repayment into the Treasury Clearance Fund and, as respects of

amounts received by way of interest into the Consolidated Fund.

(1) The Regulator shall cause to be prepared in every

financial year, and shall not later than six (6) weeks after the end of

each such year adopt, estimates of the income and expenditure of the

Regulator for the next following financial year.

(2) In the preparation of such estimates the Regulator shall

take account of any funds and other monies that may be due to be

paid to it out of the Consolidated Fund during the relevant financial

year, whether by virtue of this Act or an appropriation Act or of any

other law; and the Regulator shall so prepare the said estimates as to

ensure that the total revenues of the Regulator are at least sufficient to

meet all sums properly chargeable to its revenue account including,

but without prejudice to the generality of that expression,

depreciation.

(3) The estimates shall be made out in such form and shall

contain such information and such comparison with previous years as

the Minister responsible for finance may direct.

(4) A copy of the estimates shall, upon their adoption by the

Regulator, be sent forthwith by the Regulator to the Minister and to

the Minister responsible for finance.

(5) The Minister shall, at the earliest opportunity and not later

than six (6) weeks after he has received a copy of the estimates from

the Regulator, approve the same with or without amendment after

consultation with the Minister responsible for finance.

(1) No expenditure shall be made or incurred by the

Regulator unless provision therefor has been made in the estimates

approved as provided in article 25.

(2) Notwithstanding the provisions of sub-article (1) -

(a) until the expiration of six months from the

beginning of a financial year, or until the approval of the

estimates for that year, whichever is the earlier date, the

Regulator may make or incur expenditure for carrying on its

functions under this Act not exceeding in the aggregate one-half

of the amount approved for the preceding financial year;

(b) expenditure approved in respect of a head or sub-

head of the estimates may be made or incurred in respect of

another head or sub-head of the estimates;

(c)

in respect of the first financial year, the Regulator

may make or incur expenditure not exceeding in the aggregate

such amounts;

(d) if in respect of any financial year it is found that the

amount approved in the estimates is not sufficient or a need has

arisen for expenditure for a purpose not provided for in the

estimates, the Regulator may adopt supplementary estimates for

approval by the Minister and in any such case the provisions of

this Act applicable to the estimates shall as near as practicable

apply to the supplementary estimates.

The Minister shall at the earliest opportunity and not later Publication of

than eight (8) weeks after he has received a copy of the estimates and approved

estimates.

supplementary estimates of the Regulator, or if at any time during that

period the House of Representatives is not in session, within eight

weeks from the beginning of the next following session, cause such

estimates to be laid on the Table of the House of Representatives.

(1) The Regulator shall cause to be kept proper accounts Accounts and

and other records in respect of its operations, and shall cause to be audit.

prepared a statement of accounts in respect of each financial year.

(2) The accounts of the Regulator shall be audited by an

auditor or auditors to be appointed by the Regulator

Provided that the Minister responsible for finance may,

after consultation with the Minister, require the books and accounts of

the Regulator to be audited or examined by the Auditor General who

shall for the purpose have the power to carry out such physical

checking and other certifications as he may deem necessary.

(3) After the end of each financial year, and not later than the

date on which the estimates of the Regulator are forwarded to the

Minister under article 25, the Regulator shall cause a copy of the

statement of account duly audited to be transmitted to the Minister

and to the Minister responsible for finance together with a copy of

any report made by the auditors on that statement or on the accounts

of the Regulator.

(4) The Minister shall, at the earliest opportunity and not later

than eight (8) weeks after he has received a copy of every such

statement and report, or if at any time during that period the House of

Representatives is not in session, within eight (8) weeks from the

beginning of the next following session, cause every such statement

and report to be laid on the Table of the House of Representatives.

(1) All monies accruing to the Regulator shall be paid

into a bank or banks appointed as bankers of the Regulator by a

resolution of the Regulator. Such monies shall, as far as practicable,

be paid into any such banks from day to day, except such sum as the

Regulator may authorise to be retained to meet petty disbursements

and immediate cash payments.

(2) All payments out of the funds of the Regulator, other than

petty disbursements not exceeding a sum fixed by the Regulator, shall

be made by such officer or officers of the Regulator as the Regulator

shall appoint or designate for that purpose.

(3) Cheques against and withdrawals from any bank account

of the Regulator shall be signed by such officer of the Regulator as

may be appointed or designated by the Regulator for that purpose and

shall be countersigned by the Chairman, or such other member or

officer of the Regulator as may be authorised by the Regulator for

that purpose.

(4) The Regulator shall also make provision with respect to -

(a)

the manner in which and the officer or officers by

whom payments are to be authorised or approved;

(b) the title of any account held with the bank or banks

into which the monies of the Regulator are to be paid, and the

transfer of funds from one account to the other;

(c)

the method to be adopted in making payments out of

funds of the Regulator;

and generally with respect to any matter which is relevant to the

proper keeping and control of the accounts and books, and the control

of the finance, of the Regulator.

The Regulator shall, not later than six (6) weeks after the

end of each financial year, make and transmit to the Minister and to

the Minister responsible for finance a report dealing generally with

the activities of the Regulator during that financial year and

containing such information relating to the proceedings and policy of

the Regulator as may be required from time to time. The Minister shall

at the earliest opportunity and not later than eight (8) weeks after he has

received a copy of the said report, or if at any time during that period

the House of Representatives is not in session, within eight (8) weeks

from the beginning of the next following session, cause such report to

be laid on the Table of the House of Representatives.

PART VI

MISCELLANEOUS

The provisions of the Administrative Justice Act, in so far Administrative

as they apply to the Administrative Review Tribunal, shall apply to Review

Tribunal.

any proceedings before the said Tribunal and the words "public Cap. 490.

administration" in the said enactment shall be construed as a

reference to the Regulator.

(1) An appeal shall lie to the Administrative Review Appeals.

Tribunal on any decision of the Regulator in accordance with the

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

right to appeal shall be competent to any person aggrieved by such

decision.

(2) An appeal to the Administrative Review Tribunal may be

filed on any of the following grounds

(a)

that a material error as to the facts has been made;

(b)

that there was a material procedural error;

(c)

that an error of law has been made;

(d) that there was some material illegality, including

unreasonableness or lack of proportionality.

(3) The Administrative Review Tribunal shall give reasons for

its decision and shall cause such decisions to be made public

omitting, if it deems it appropriate for reasons of confidentiality, the

names of the persons involved.

(4) In determining an appeal the Administrative Review

Tribunal shall take into account the merits of the appeal, and may in

whole or in part, confirm or annul the decision appealed from, giving

in writing the reasons for its decision and shall cause such decision to

be made public and communicated to the parties to the appeal.

(5) The effect of a decision to which an appeal relates shall

not, except where the Administrative Review Tribunal or the Court of

Appeal, as the case may be, so orders, be suspended in consequence

of the bringing of the appeal.

(6) The right of appeal to the Administrative Review Tribunal

shall be competent to any person aggrieved by the decision

Provided that in any case, a person making an appeal to the

Administrative Review Tribunal shall also require a direct interest in

impugning the decision or directive appealed from.

(7) Without prejudice to the provisions of article 13 -

(a)

an appeal from a decision or directive of the

Regulator shall be made by application and shall be filed with

the secretary of the Administrative Review Tribunal within

twenty (20) days from the date on which the said decision or

directive has been notified in writing to the party appealing or

published in the Gazette whichever is the earlier, as the case

may be; and

(b) the application of appeal shall be served on the

Regulator, which shall not later than twenty (20) days from such

service file its reply thereto with the secretary of the

Administrative Review Tribunal.

(1) The Administrative Review Tribunal shall be

competent to hear and decide any appeal made to it in accordance

with the provisions of this Act and any regulations made thereunder;

and, subject to article 34, the decisions of the said Tribunal shall be

final and binding.

(2) In the exercise of its functions, the Tribunal may summon

any person to appear before it and give evidence and produce

documents; and the chairperson shall have the power to administer

the oath. The Tribunal may also appoint experts to advise the Tribunal

on any technical issue that may be relevant to its decision.

(3) For the purposes aforesaid the Tribunal shall have the same

powers as are competent to the First Hall, Civil Court according to

law.

(4) The procedure to be followed before the Tribunal, the time

within which and the manner in which an appeal to the Tribunal is to

be made shall be such as may be prescribed; and subject thereto, and

to any other applicable provision of this Act, the Tribunal may

establish its own procedure.

(1) Any party to an appeal to the Tribunal who feels

aggrieved by a decision of the Tribunal, or the Regulator if it feels

dissatisfied with any such decision, may on a question of law appeal

to the Court of Appeal in terms of the Administrative Justice Act.

(2) The appeal shall be made by means of an application filed

in the registry of that court within twenty (20) days from the date on

which that decision has been notified.

(1) The execution of all works in connection with any Powers of

services provided under a licence issued under this Act shall be service

providers.

carried out in such manner as may be agreed between the service

provider and the person receiving such services.

(2) The provider of any service for which a licence is required

under this Act and any employee duly authorised by him may at all

reasonable times enter any premises for the purpose of -

(a)

ascertaining that the services are being used in

accordance with the conditions under which they are supplied;

(b) maintaining or repairing any equipment supplied by

him in relation to such service;

(c)

ascertaining such data or information that may be

required in connection with the provision of such service

Provided that any such service provider shall repair all damage

caused by such entry.

(3) Any person who obstructs or impedes any person in the

exercise of his duties under sub-article (1) shall be guilty of an

offence against this Act.

(1) In regulating access to service activities falling Service

under this Act and, or the exercise thereof, the Regulator shall, where providers.

such service activities fall within the scope of the Services (Internal Cap. 500.

Market) Act

(a)

act objectively, transparently, efficiently and in a

timely manner;

(b) provide information and assistance to service

providers and recipients subject to the provisions of this Act;

(c)

make it possible to complete all procedures and

formalities relating to access to a service activity and to the

exercise thereof, available electronically through the designated

point of single contact

Provided that the requirement to make it possible to

complete all procedures and formalities electronically through

the point of single contact shall not apply to the inspection of

premises from which the service is provided or of equipment

used by the service provider.

(2) When a service provider is already established in another

Member State, and seeks access to a service activity or the exercise

thereof in Malta

(a)

where the service activity is subject to an

authorisation scheme or the fulfilment of other requirements

regulating establishment in Malta, the Regulator shall not

duplicate requirements or controls which are equivalent or

essentially comparable as regards their purpose which a service

provider may already be subject to in another Member State

where he is already established;

(b) where the Regulator requires a service provider to

supply a certificate, attestation or document proving that a

requirement has been satisfied in terms of this Act or

regulations made thereunder

(i) it shall accept any document from another

Member State which serves an equivalent purpose or from

which it is clear that the requirement in question has been

satisfied;

(ii) it may not require a document from another

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

certified copy or certified translation save in the cases

provided for in a Community instrument or where such a

requirement is justified by an overriding reason relating to

the public interest, including public order and public

security

Provided that the provisions of this paragraph shall

not affect the right of the Regulator from requesting a non-

certified translation of documentation in the Maltese or in the

English language.

(3) Where the number of authorisations available for a service

activity is limited because of the scarcity of available natural

resources, technical capacity or if justified by an overriding reason

relating to public interest, the Regulator shall apply a selection

procedure to potential candidates in order to ensure impartiality,

transparency, conditions of open competition, including in particular,

adequate publicity about the launch, conduct and completion of the

procedure. In establishing the rules for the selection procedure, the

Regulator may give consideration to issues relating to public health,

social policy objectives, the health and safety of employees or self-

employed persons, the protection of the environment, and other

overriding reasons relating to the public interest, in conformity with

Community law.

(4) An authorisation granted to a service provider shall be for

an indefinite period, except where

(a)

the authorisation is being automatically renewed or

is subject only to the continued fulfilment of requirements;

(b) the number of available authorisations is limited in

terms of sub-article (3);

(c)

a limited authorisation period can be justified by an

overriding reason relating to the public interest

Provided that in cases referred to in paragraph (b), an

authorisation shall be granted for an appropriate limited period

enabling the service provider to recover the cost of investment and to

make a fair return on the capital invested, which authorisation may

not have an excessive duration, be open to automatic renewal nor

confer any other advantage on the service provider whose

authorisation has just expired or on any person having any particular

links with that provider.

(5) An authorisation granted by the Regulator shall enable the

service provider to have access to the service activity or the exercise

thereof throughout Malta including by means of the setting up of

agencies, subsidiaries, branches or offices, except where the

authorisation for each individual establishment or a limitation of

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

overriding reason relating to public interest

Provided that the service provider shall be required to

inform the Regulator of the creation of subsidiaries, branches, offices

or agencies whose activities fall within the scope of the authorisation

scheme.

(6) In the fulfilment of its authorisation function in terms of

this article, the Regulator shall

(a)

acknowledge

all

applications

requesting

authorisation;

(b) in case of an incomplete application, inform the

applicant as quickly as possible of the need to supply any

additional information, together with the consequences which

ensue should the applicant delay in providing the said

information or requirements;

(c)

process an application for an authorisation as

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

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

be deemed that the authorisation has been granted. The period

will start to run from the day when all due information has been

submitted and any other requirements and formalities have been

completed in order for the Regulator to process the application

Provided that the time period may be extended once

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

The extension and its duration shall be duly justified and given

to the applicant before the original period has expired

Provided further that the Regulator may make

different arrangements where objectively justified by overriding

reasons relating to the public interest including a legitimate

interest of third parties;

(d) provide information regarding the means of redress

available in case of non-acceptance of an application;

(e)

grant an authorisation as soon as the applicant fulfils

all requirements, without prejudice to the right of the Regulator

to revoke or modify an authorisation when the conditions for

authorisation are no longer met by the service provider;

(f)

in the case of rejected applications due to failure to

comply with the required procedures or formalities, inform the

applicant of the rejection as soon as possible;

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

authorisation, a decision from the Regulator, including refusal

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

challenge before the Administrative Review Tribunal.

(7) With the exclusion of service activities and matters which

are declared to be services of a general economic interest, which inter

alia may include -

(a)

in the electricity sector, services covered by

Directive 2009/72/EC of the European Parliament and of the

Council of 26 June 2003 concerning common rules for the

internal market in electricity;

(b) in the gas sector, services covered by Directive

2009/73/EC of the European Parliament and of the Council of

26 June 2003 concerning common rules for the internal market

in natural gas;

(c)

water distribution and supply services and waste

water services,

the Regulator shall respect the right of service providers that are

lawfully established and providing services in another Member State

to provide services in Malta, and may not prevent them from

providing such service activities by imposing requirements which are

discriminatory, unnecessary or disproportionate

Provided that the Regulator may impose requirements with

regard to the provision of a particular service activity, where these are

justified for reasons relating to public policy, public security, public

health or the protection of the environment

Provided also that in establishing whether a service

provider is exercising his freedom to provide services within the

meaning of this article and Article 49 of the Treaty, or is an

establishment case, or whether a service provider is abusively taking

advantage of the freedom to provide services, the Regulator shall

assess and decide each case on its individual merits and in conformity

with Community legislation and rulings of the European Court of

Justice.

(8) Without prejudice to sub-article (7), in exceptional cases

only, the Regulator may, in respect of a service provider established

in another Member State, take measures in order to ensure the safety

of services provided in Malta. When taking such measures, the

Regulator shall follow the procedure established under the Fourth

Schedule to the Services (Internal Market) Act, and ensure the Cap. 500.

fulfilment of the following conditions

(a)

the national provisions, in accordance with which

the measures are taken, have not been subject to Community

harmonisation in the field of the safety of services;

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

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

taken by the Member State of establishment in accordance with

its national provisions;

(c)

the Member State of establishment has not taken any

measures or has taken measures which are insufficient as

compared with those requested by the Regulator and as referred

to in paragraphs 2 and 3 to the Fourth Schedule to the Services Cap. 500.

(Internal Market) Act;

(d)

the measures are proportionate

Provided that the Regulator, upon gaining actual

knowledge of any conduct or specific acts by a service provider

established in Malta and which provides services in other Member

States, which, to its knowledge, could cause serious damage to the

health or safety of persons or to the environment, shall inform all

other Member States and the European Commission within the

shortest possible period of time through the Internal Market

Information System.

(9) (a)

The Regulator shall require service providers

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

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

and objectively justified for it to fulfil its supervisory function of

services in terms of this Act and the Services (Internal Market) Act.

(b) The Regulator shall exercise its supervisory

functions on service providers established in Malta, and falling under

its area of competence, whether the service is provided in Malta or in

another Member State.

(c)

In executing its supervisory functions, when a

service is being provided in another Member State by a service

provider established in Malta, the Regulator shall assist the relevant

competent authority of that other Member State in terms of the

procedure established in the Second Schedule of the Services

(Internal Market) Act. In doing so, the Regulator shall not refrain

from taking supervisory enforcement measures in Malta on the

grounds that a service has been provided or caused damage in another

Member State

Provided that the Regulator shall not be bound to

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

is being provided.

(d) When a service is being provided in Malta, in the

event of a temporary movement by a service provider established in

another Member State

(i) the Regulator shall participate in the

supervision of the service provider in accordance with the

procedure set up in the Second Schedule to the Services

(Internal Market) Act;

(ii) when

the

Regulator

has

imposed

requirements in terms of the first proviso to sub-article (7),

it shall assume responsibility for the supervision of that

service provider in Malta in order to ensure compliance

with those requirements.

(e)

The Regulator shall exchange requests and

information with the relevant competent authorities of another

Member State through the Internal Market Information System.

(f)

Without prejudice to the limitations imposed by any

other law, the Regulator shall supply information to the relevant

competent authority of another Member State on disciplinary or

administrative actions, or criminal sanctions and decisions

concerning insolvency or bankruptcy involving fraud, which directly

concern a provider, and which are directly relevant to the provider’s

competence or professional reliability, in terms of the procedure

contemplated under the Third Schedule of the Services (Internal Cap. 500.

Market) Act.

(1) The Minister may, after consultation with the Power to make

Regulator, make regulations in respect of any of the functions of the regulations.

Regulator or for the better carrying out of any of the provisions of this

Act.

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

such regulations may, in particular provide -

(a)

for any aspect relating to the procedure and

conditions that may be imposed in relation to any authorisation

under this Act including where applicable the grant, renewal,

transfer, suspension, cancellation and duration of any such

authorisation, the manner in which applications for such

authorisations is to be made, the content and form of such

applications and how they may be granted, renewed or

transferred, the fees payable, and the manner in which renewals

or transfers thereof is to be indicated;

(b) for the regulation of any aspect relating to

imposition of public and, or universal service obligations,

however so described, in respect of any operation, activity or

service regulated by this Act;

(c)

for the regulation of price structures for resources

and where appropriate for the regulation and determination of

tariffs, price mark-ups and charges for the supply, storage and

distribution of resources and for the use of any systems used in

the distribution and transmission of resources;

(d) for securing adequate reserves, where applicable,

and for securing the adequate provision of the resources

regulated by or under this Act;

(e)

for the compulsory acquisition and distribution of

any such resources during periods of scarcity;

(f)

for the minimum standards to be adopted in, and any

other matter related to the conservation, acquisition, supply,

sale, storage, generation, distribution, transmission, export,

treatment, re-use or disposal and any other practices, operations

and activities, regulated by or under this Act including the

means by which such resources are to be protected, acquired,

supplied, sold, stored, generated, distributed, transmitted,

exported, treated, re-used or disposed of;

(g) for the quality of service targets and the

establishment and maintenance of an efficient customer service

by authorised providers for consumers;

(h) to secure and regulate the conservation,

augmentation, operation and use of sources of energy and water

as well as the promotion and the harnessing, generation and use

of energy and water resources;

(i)

for promoting fair competition in all practices,

operations and activities related to energy and water;

(j)

for the undertaking of studies, research or

investigation on any matter relating to the resources regulated

by or under this Act and the provision of information, the issue

of guidelines to the public and to commercial entities on matters

relating to the said resources;

(k) to give effect to any international obligation entered

into by Government in relation to the resources regulated by or

under this Act;

(l)

for regulating the services that may be required in

relation to energy and water and the time, manner, place and

condition in which or under which such services are to be

provided;

(m) for the regulation of the qualifications to be

possessed by persons who are employed in any activity

regulated by or under this Act;

(n) for matters concerning the construction, condition

and maintenance of any facilities, apparatus and other

equipment utilised in the provision of any of the said resources

or services related thereto;

(o)

for prescribing the information to be retained by

authorised providers under this Act and the provision of

statistical data by such authorised providers, and on any other

matter relating to provision of information by authorised

providers to the Regulator;

(p) for the making of any deposit or the giving of any

guarantee to ensure the performance of any obligation by any

person imposed as a condition of any permit, authorisation or

licence under this Act;

(q) for prescribing the practices to be adopted in regard

to safety, and the protection of the environment in relation to

any matter regulated by this Act, including any norms in

relation to the liability of any person who causes damage to the

environment as a result of any activities regulated by or under

this Act undertaken by that person;

(r)

regarding a contingency plan in the event of any

crisis relating to any matter regulated by this Act;

(s)

for complaint processing procedures to be

implemented by an authorised provider, and for any matter

relating to the resolution of any disputes and, or complaints,

however so described, relating to any matter regulated by this

Act;

(t)

in regard to administrative infringements and fines;

(u) regarding cooperation with other authorities and the

relationship between the Regulator and other public authorities

including consultations, provision of information and any other

matter of mutual interest;

(v) for the procedures to be followed in regard to the

settlement of disputes;

(w) for the enforcement powers required by the

Regulator to perform its functions under this Act;

(x) for prescribing anything which may be or is required

to be prescribed by this Act.

Without prejudice to any other provision of this Act the Power of

Minister may, after consultation with the Regulator, make regulations Minister

make

prescribing penalties for criminal offences against any regulations regulations

relation to

made under this Act, and such regulations may

criminal

offences.

(a)

prescribe imprisonment and different fines (multi)

for different offences;

(b) prescribe fines (multi) calculated in accordance with

the duration of the commission of the offence

Provided that any such regulations as may be made shall

not provide for

(i) imprisonment for more than eighteen months,

or a fine (multa) of more than seventy thousand euro

(€70,000); or

(ii) a fine of more than one thousand four

hundred euro (€1,400) for each day during which the

offence persists.

The members of the Regulator and all officers and

employees of the Regulator shall be deemed to be public officers

within the meaning and for the purposes of the Criminal Code.

The members of the Board, officers and employees of the

Regulator in the performance of their functions under this Act or any

other law administered by the Regulator, shall not be liable for any

loss or damage suffered by any person by reason of anything done or

omitted to be done in good faith in the course of the administration of

this Act or of any other law.

(1) Any subsidiary legislation promulgated under the

Malta Resources Authority Act and, or listed in the Schedule to the

Malta Resources Authority Act shall continue in force subject to the

effect that where such subsidiary legislation relates to resources other

than mineral resources it shall be deemed as if made under this Act

and may be amended, substituted or revoked accordingly.

(2) The following words occurring in the subsidiary

legislation listed in the First Schedule shall be substituted as follows

(a) the words "Malta Resources Authority Act" shall be

substituted by the words "Regulator for Energy and Water

Services Act";

(b) the words "Malta Resources Authority" shall be

substituted by the words "Regulator for Energy and Water

Services";

(c)

the word "Authority" shall be substituted by the

word "Regulator".

(3) Any licence, permission, authority or order granted or

made under any of the provisions of the subsidiary legislation listed

in the First Schedule and still in force immediately before the coming

into force of this Act, shall continue in force thereafter as if it were a

licence, permission, authority or order granted or made under a

corresponding provision of this Act, and any such licence,

permission, authority or order as aforesaid shall be treated and dealt

with accordingly.

(4) Subject to article 43, the legislation listed in the Second

Schedule shall continue in force under the Malta Resources Authority Cap. 423.

Act.

(5) Without prejudice to any other provision of this Act, any

reference in any law to the Malta Resources Authority in relation to

resources other than mineral resources shall be deemed to be a

reference to the Energy and Water Services Regulator.

(6) Without prejudice to any other provision of this Act, any

reference in any law to the Malta Resources Authority Act in relation Cap. 423.

to resources other than mineral resources shall be deemed to be a

reference to this Act as in force from time to time.

(7) Notwithstanding the provisions of any other law, the

amendments to the subsidiary legislation in Parts VII and VIII of this

Act shall come into force by virtue of this Act without the need of any

further formalities.

(1)

With effect from the date of the coming into force of Transfer of

assets and

this Act

liabilities of the

Malta Resources

Authority.

(a) all assets and rights of whatever nature of the Malta

Resources Authority (hereafter ‘Authority’) relating to

resources other than mineral resources whether existing in

Malta or outside Malta, including but not limited to all real or

other rights under any contract, all monies due by any person to

the Authority, and all shares in, stocks, or other interests of or in

any other bodies; and

(b) all obligations and liabilities of the Authority

relating to resources other than mineral resources,

shall by virtue of this Act be deemed to be assets, rights, liabilities

and obligations of the Regulator without the need of any formalities

other than this Act.

(2) With effect from the date of the coming into force of this

Act, all actions pending before any court, tribunal, arbitral tribunal, or

any other adjudicating body, instituted by or against the Authority

shall

(a) with reference to mineral resources and to the

legislation listed in the Second Schedule be continued by or

against the Authority;

(b) with reference to resources other than mineral

resources and to the legislation listed in the Second Schedule,

be continued by or against the Regulator,

without the need of any formalities other than this Act.

(1) The Malta Resources Authority Act is hereby

repealed, with the exception of the provisions referred to in sub-

article (2).

(2) The following provisions of the Malta Resources Authority

Act shall remain in force until repealed with effect from such date as

may be established by notice in the Gazette by the Minister

responsible for resources

(a)

article 2 as applicable in terms of this sub-article;

(b)

article 3;

(c)

article 4(1) in relation to mineral resources and to

the legislation listed in the Second Schedule only;

(d) article 4(2)(b) in relation to the legislation listed in

the Second Schedule only and article 4(2)(c);

(e)

article 4(3) as applicable;

(f)

article 4(4) in relation to the legislation listed in the

Second Schedule and to mineral resources only;

(g) articles 5 to 8 limitedly with reference to mineral

resources and to the legislation listed in the Second Schedule;

(h)

Parts III and IV; and

(i)

Part V in relation to mineral resources and to the

legislation listed in the Second Schedule only.

PART VII

REVOCATION OF CERTAIN REGULATIONS MADE UNDER

THE MALTA RESOURCES AUTHORITY ACT

The Protection of Groundwater against Pollution caused by Revocation of

Certain Dangerous Substances Regulations are hereby revoked the

Groundwater

without prejudice to anything done or omitted to be done thereunder. against

Pollution caused

by Certain

PART VIII

Dangerous

Substances

AMENDMENT OF CERTAIN REGULATIONS MADE UNDER

Regulations.

THE MALTA RESOURCES AUTHORITY ACT

In regulation 2 of the Energy Performance of Buildings Amendment of

the Energy

(Fees) Regulations, the definition "the Act" shall be deleted.

Performance of

Buildings (Fees)

Regulations.

The Energy Performance of Buildings (Fees) Regulations Effect of the

shall have effect as if made under the Building Regulation Act and Energy

Performance of

may be amended, substituted or revoked accordingly.

Buildings (Fees)

Regulations.

The Water Policy Framework Regulations shall be Amendment of

the Water Policy

amended as follows

Framework

Regulations.

(a)

in the definition "the competent authority" in

regulation 2 thereof, for the words "Malta Resources Authority"

there shall be substituted the words "Sustainable Energy and

Water Conservation Unit";

(b) in Part B of Schedule VI thereof, the words "the

Malta Resources Authority Act and" shall be deleted.

The Water Policy Framework Regulations shall have effect Effect of the

as if made under the Environment and Development Planning Act and Water

Framework

may be amended, substituted or revoked accordingly.

Regulations.

The Promotion of Energy from Renewable Sources Amendment of

the Promotion

Regulations shall be amended as follows

of Energy from

Renewable

Sources

(a)

regulation 2 thereof shall be amended as follows

Regulations.

(i)

the definition "the Authority" shall be

deleted;

(ii) immediately after the definition "support

scheme" there shall be added the following new definition

" "the Unit" means the Sustainable Energy

and Water Conservation Unit established under

regulation 3 of the Sustainable Energy and Water

Conservation Unit (Establishment as an Agency)

Order, 2014;"; and

(b) for the word "Authority" wherever it occurs in the

Regulations there shall be substituted the word "Unit".

The Protection of Groundwater against Pollution and

Deterioration Regulations shall be amended as follows

(a)

regulation 2 thereof shall be amended as follows

(i)

the definition "the Authority" shall be

deleted;

(ii) immediately after the definition "significant

and sustained upward trend" there shall be added the

following new definition

" "the Unit" means the Sustainable Energy

and Water Conservation Unit established under

regulation 3 of the Sustainable Energy and Water

Conservation Unit (Establishment as an Agency)

Order, 2014;"; and

(b) for the word "Authority" wherever it occurs in the

Regulations there shall be substituted the word "Unit".

The Protection of Groundwater against Pollution and

Deterioration Regulations shall have effect as if made under the

Environment and Development Planning Act and may be amended,

substituted or revoked accordingly.