ACT No. XXVIII of 2017 AN ACT to amend the Prevention of Money Laundering Act, Cap.

I assent.

(L.S.)

MARIE-LOUISE

COLEIRO PRECA

President

1st December, 2017

ACT No. XXVIII of 2017

AN ACT to amend the Prevention of Money Laundering Act, Cap.

373. 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:-

The short title of this Act is the Prevention of Money Short title.

Laundering (Amendment) Act, 2017, and this Act shall be read and

construed as one with the Prevention of Money Laundering Act, Cap. 373.

hereinafter referred to as "the principal Act".

In article 2 of the principal Act, immediately after the Amendment of

definition "EEA State" there shall be added the following new article

principal Act.

definition

" "European Supervisory Authority" means the European

Supervisory Authority (European Banking Authority),

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

Parliament and of the Council, or the European Supervisory

Authority (European Insurance and Occupational Pensions

Authority) established by Regulation (EU) No. 1094/2010 of the

European Parliament and of the Council or the European

Supervisory Authority (European Securities and Markets

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

European Parliament and of the Council;".

Sub-article (9) of article 4 of the principal Act shall be

substituted by the following

"(9) An investigation order shall be served on the

persons referred to in sub-article (1) and an attachment

order shall be served on the garnishee and on the

suspect by an officer of the Executive Police or by an

officer of the issuing authority or by an officer of the

Courts or of the Asset Recovery Bureau

Provided that such orders may also be served

on the garnishee and the persons referred to in sub-

article (1), except for the suspect, by electronic mail in

which case the person upon whom the order is served

shall acknowledge receipt by return electronic mail by

not later than one working day from such service. In

default of receipt of such acknowledgement the order

shall be served physically by any of the officers

referred to in this sub-article without prejudice to the

validity of the service made by electronic mail

Provided further that the procedure stipulated

in this sub-article shall apply, in addition to that

provided in sub-article (9) of article 24A of the

Dangerous Drugs Ordinance, with regard to service of

investigation orders and attachment orders issued under

the said Ordinance.".

Article 12 of the principal Act shall be amended as follows

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

following

"(1) The Minister may, acting on the advice of the Unit,

make rules or regulations generally with a view to combating

money laundering and funding of terrorism or for the better

carrying out of the provisions of this Act, and in particular, but

without prejudice to the generality of the foregoing, may by such

rules or regulations require credit institutions, financial institutions

and other undertakings and professions operating within the

financial sector and other relevant sectors, to implement measures,

procedures, systems and controls to prevent money laundering and

the funding of terrorism, including identification,

risk

management, record-keeping, training and reporting.";

(b)

sub-article (4) thereof shall be substituted by the following

"(4) The Minister may, in consultation with the Minister

responsible for justice, by regulation amend, alter or add to the

list of offences specified in the Second Schedule to this Act.";

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

the following new sub-article (5)

"(5) The Minister may prescribe by regulations any matter

required to be prescribed by this Act.".

Immediately after article 12 of the principal Act there shall be Addition of a

added the following new article

(1) The Minister may, by regulations made

under this Act, establish a committee that shall be

referred to as the National Co-ordinating Committee on

Combating Money Laundering and Funding of Terrorism.

Laundering and

(2) The committee established under sub-article (1)

shall draw up a national strategy and policies to combat

money laundering, the funding of terrorism and the

financing of the proliferation of weapons of mass

destruction and co-ordinate any action to be taken to

develop, implement and review the national strategy and

policies, including the co-ordination of national risk

assessments and the actions to be taken to address any

threats, vulnerabilities and risks identified.

(3) The committee established under sub-article (1)

shall be composed of the Permanent Secretary of the

Ministry responsible for finance, the Permanent Secretary

of the Ministry responsible for home affairs, the Permanent

Secretary of the Ministry responsible for justice, the

Governor of the Central Bank of Malta, the Commissioner

for Revenue, the Chairman of the Malta Financial Services

Authority, the Chairperson of the Malta Gaming Authority,

the Commissioner of Police, the Attorney General, the

Chairman of the Unit and the Chairperson of the Asset

Recovery Bureau or their deputies.

(4) The committee may, whenever it deems so

necessary or expedient, engage one or more persons,

whom it considers to be in possession of suitable expertise,

to assist it in carrying out specific tasks requiring such

expertise.

(5) The Chairperson of the committee shall be the

Permanent Secretary of the Ministry responsible for

finance.

(6) The Minister shall prescribe by means of

regulations the powers to be conferred on the committee

and the procedures it is to follow for the proper carrying

out of its functions.

(7) The remuneration payable, if any, to any member

of the committee shall be determined by the Minister.".

6. Article 13 of the principal Act shall be substituted by the

(1) The Minister may make rules or

regulations to provide for criminal punishments,

administrative penalties and other measures that may be

imposed in respect of any contravention, breach or failure

to comply with any rules, regulations or directives made

under this Act

Provided that

(a) criminal punishments so imposed shall

not exceed a fine (multa) of one million euro

(€1,000,000) or imprisonment for a term not

exceeding five years, or both such fine and

imprisonment as set out in the rules or regulations

concerned; and

(b)

administrative penalties so imposed

shall not exceed

(i)

five million euro (€5,000,000); or

(ii) twice the amount of the benefit

derived from the contravention, breach or

failure to comply, where this can be

determined; or

(iii) ten per centum (10%) of the total

annual turnover according to the latest

approved available financial statements.

(2) The administrative penalties referred to under

sub-article (1) shall be imposed by the Unit in accordance

with policies and procedures established by the Board of

Governors referred to in article 18, from time to time.

(3) The Unit may, in cross-border cases, co-operate

with any foreign national or supranational body, authority

or agency which it considers to have functions equivalent

or analogous to those mentioned in article 26(1), to co-

ordinate the imposition of administrative penalties or

other measures.

(4) Where an administrative penalty or other

measure, as provided for in this article, is imposed in

respect of a subject person carrying out relevant financial

business, as defined under regulations in force from time

to time under this Act, the Unit shall notify the relevant

European Supervisory Authority of the action taken and,

where applicable, the European Supervisory Authority

shall also be notified of any pending appeal and the

outcome thereof.

(5) For the purposes of this article and articles 13A

and 13B the term "subject person" has the same meaning

assigned to it by article 14 of this Act.".

7. Article 13A of the principal Act shall be substituted by the Substitution of

" Appeals from

(1) Whenever a subject person feels aggrieved

by an administrative penalty imposed by the Unit in

terms of rules and regulations made under article 13, and

that administrative penalty exceeds five thousand euro

(€5,000), whether imposed in respect of one or more

contraventions, the subject person may appeal such

administrative penalty both on points of law and fact.

(2) The appeal as referred to in sub-article (1) shall

lie to the Court of Appeal (Inferior Jurisdiction)

constituted in terms of article 41(6) of the Code of

Organization and Civil Procedure.

(3) An appeal to the Court of Appeal (Inferior

Jurisdiction) in terms of sub-article (1) shall be filed in

the registry of the said Court within twenty days from the

date when the imposition of the administrative penalty is

notified to the subject person, and such an appeal shall be

regulated by the applicable provisions of the Code of

Organization and Civil Procedure relating to appeals.

(4) For the purposes of safeguarding the

confidentiality of information and documents relating to

the proceedings, the appeal before the Court of Appeal

(Inferior Jurisdiction) filed in terms of this article shall be

heard in camera and saving the provisions of article 13C

the judgment shall not be published.

8. Immediately after article 13A of the principal Act there shall

be added the following new articles

(1) An administrative penalty, served on the

administrative

subject person against whom it is imposed by means of a

notice in writing, which is not appealed in accordance

with the provisions of article 13A and which is not paid

within twenty days from the date of notification, shall be

recoverable as a civil debt, and the notice in writing shall,

upon the service of a copy thereof by means of a judicial

act on the subject person indicated in the notice,

constitute an executive title for all effects and purposes of

Title VII of Part I of Book Second of the Code of

Organization and Civil Procedure.

(2) Where the administrative penalty is appealed and

the appeal is decided, deserted or withdrawn, the

administrative penalty shall be enforceable in accordance

with the procedure provided for in sub-article (1).

Any administrative penalty imposed by the Unit

Publication of

administrative

in terms of rules and regulations made under article 13,

which exceeds ten thousand euro (€10,000) and which has

become final and due shall be subject to publication in

accordance with policies and procedures established by

the Board of Governors referred to in article 18.".

9. Article 14 of the principal Act shall be amended as follows

(a) immediately before the definition "subject person"

there shall be added the following new definition

" "competent authority" shall have the same meaning

assigned to it by regulations in force from time to time

under this Act or as may be prescribed under this Act;";

(b) the definition "subject person" shall be substituted by

the following

" "subject person" shall have the same meaning

assigned to it by regulations in force from time to time

under this Act or as may be prescribed under this Act;".

10. Sub-article (1) of article 16 of the principal Act shall be Amendment of

article 16 of the

amended as follows

principal Act.

(a) in paragraph (c) thereof the words "liaise with

supervisory authorities" shall be substituted by the words "liaise

with any authority in or outside Malta having supervisory or

regulatory functions"; and

(b) paragraph (k) thereof shall be substituted by the

following

"(k) upon request or on its own motion and subject

to such conditions and restrictions as it may determine, to

cooperate and exchange information with

(i) any foreign body, authority or agency

which it considers to have functions equivalent or

analogous to those mentioned in paragraphs (a) and

(b);

(ii) any supervisory authority in Malta or

with any authority outside Malta which it considers

to have equivalent or analogous functions to a

supervisory authority in Malta; and

(iii) any other competent authority;".

11. In sub-article (2) of article 26 of the principal Act, the words Amendment of

"In carrying out its responsibilities under sub-article (1) the Unit" shall article

principal Act.

be substituted by the words "The Unit shall carry out its

responsibilities under sub-article (1) on a risk sensitive basis and, in so

doing, the Unit".

12. Immediately after article 26 of the principal Act, there shall Addition of a

new article 26A

to the principal

Act.

be added the following new article

" Engagement

(1) The Unit may, whenever it deems so

necessary or expedient, engage one or more persons,

whom it considers to be in possession of suitable

expertise, to assist it in carrying out specific tasks

requiring such expertise, and, for this purpose, the Unit

may impose such conditions as it considers necessary.

(2) Article 33 and article 34(1) shall mutatis

mutandis apply to any person engaged by the Unit under

this article.".

13. Article 27 of the principal Act shall be amended as follows

(a) sub-article (1) of article 27 of the principal Act shall

be substituted by the following

"(1) The Unit shall, upon request or on its own

motion, co-operate and exchange information with any

supervisory authority in Malta or any other body having

regulatory or supervisory functions outside Malta, when

the Unit is of the view that such co-operation and exchange

of information would assist in ensuring that the financial

sector and other relevant sectors are not used for criminal

purposes or to safeguard their integrity

Provided that where the Unit exchanges any

information with a supervisory authority in Malta, that

supervisory authority shall provide the Unit upon request

and in a timely manner with information on the use made

of the exchanged information and any outcome of any

inspection or any other regulatory action undertaken on the

basis of that information."; and

(b) in paragraph (b) of sub-article (3), the words "to

carry out, on behalf of the Unit, on-site examinations" shall be

substituted by the words "to carry out, on behalf of or jointly

with the Unit, on-site or off-site examinations".

14. Immediately after article 27 of the principal Act, there shall

be added the following new article

(1) In carrying out its functions under article

16(1)(k)(i), the Unit may exchange, any information that

may be relevant for the processing or analysis of

information or to investigations regarding financial

transactions or activities related to money laundering or

the underlying criminal activity, or funding of terrorism

and the persons involved.

(2) The Unit may impose conditions and restrictions

on the use of exchanged information as it may determine,

including the prior conclusion, if it deems so necessary,

of any memorandum of understanding or other

agreement to regulate any such exchange of information

Provided that the disclosure of information shall

be subject to the condition that the information or

documents disclosed shall not be used for purposes other

than those indicated by the Unit nor shall they be

disseminated to any other person, body, authority or

agency, without the express prior consent of the Unit.

(3) The consent referred to in the proviso to sub-

article (2) shall be provided by the Unit promptly and

shall not be withheld unless in the opinion of the Unit

such disclosure

(a) could lead to the impairment of a

criminal investigation;

(b) would be clearly disproportionate to the

legitimate interests of Malta or of a person; or

(c) would not be in accordance with the

fundamental principles of Maltese law.

(4) The Unit shall respond, in a timely manner, to

requests for information made by any foreign authority,

body or agency considered to have functions equivalent

or analogous to those of the Unit under article 16(1)(a)

and (b)

Provided that the Unit may refuse to disclose

any document or information

(a) if in its opinion such disclosure would

not be in accordance with fundamental principles

of Maltese law;

(b) if in its opinion the foreign authority,

body or agency does not have duties of secrecy and

confidentiality that are at least equivalent to those

of the Unit or does not provide effective measures

to protect confidentiality and secrecy; or

(c) on the grounds of lack of reciprocity or

repeated non-cooperation by the foreign authority,

body or agency making the request

Provided further that where the request

for information is made by an authority, body or

agency of a Member State considered to have

functions equivalent or analogous to those of the

Unit under article 16(1)(a) and (b), the Unit may

refuse to disclose any document or information

only if in its opinion such disclosure would not be

in accordance with fundamental principles of

Maltese law.

(5) Where the Unit refuses to grant consent under

sub-article (3) or to disclose information in terms of the

provisos to sub-article (4), an explanation shall be

provided.

(6) Without prejudice to the other provisions of this

article, where the Unit receives information pursuant to

its function under article 16(1)(a) which concerns another

Member State, it shall promptly forward any relevant

information to the authority, body or agency within that

Member State, considered to have functions equivalent or

analogous to those of the Unit under article 16(1)(a) and

(b).".

15. Immediately after article 27A of the principal Act, there shall

be added the following new article

Without prejudice to the generality of the

provisions of the Act, where the Unit is in possession of

documentation or information which it considers to be of

interest and relevance to any competent authority in the

pursuance of its functions, the Unit may, if it deems it

necessary or expedient, and subject to any conditions and

restrictions that the Unit may impose, transmit such

documentation or information to the relevant competent

authority.".

16. In sub-article (4) of article 28 of the principal Act, the words Amendment to

"suspended by the Unit for the period of time referred to in sub-article article

(2) or the extended period referred to in sub-article (3)" shall be

substituted by the words "suspended in terms of this article".

17. Immediately after sub-article (4) of article 31 of the principal Amendment to

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

"(5) The Police shall, upon request and in a timely

manner, inform the Unit on the use made of information

provided by the Unit under this article and on the outcome of any

investigations carried out pursuant to the information provided.".

18. Immediately after article 31 of the principal Act, there shall Addition of a

be added the following new article

(1) Where the Unit provides information to a

by competent

competent authority as provided for under this Act, that

competent authority shall inform the Unit, upon request

and in a timely manner, with information on the use made

of the information provided by the Unit and any outcome

of any investigation or any other action undertaken on the

basis of that information.

(2) For the purposes of this article the term

competent authority shall only include the Comptroller of

Customs when carrying out duties under any regulations

that may be issued or are in force from time to time

relating to the cross border movement of cash and other

financial instruments.".

19. Article 32 of the principal Act shall be substituted by the Substitution of

following

The Unit shall, at the request of the subject person

or on its own motion, give to the subject person which

makes a report to the Unit as provided for under sub-article

16(1)(a) such information as the Unit deems appropriate to

keep the subject person informed about the outcome of the

report submitted and any other information which the Unit

considers to be of interest to the subject person to regulate

its affairs and to assist it in carrying out its duties under

this Act or any regulation made thereunder.".

20. Article 34 of the principal Act shall be amended as follows

(a)

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

following

"(1) The Unit, and its officers, employees and

agents, whether still in service of the Unit or not, shall treat

any information acquired in the performance of their duties

or the exercise of their functions under this Act as

confidential, and shall not disclose any information

relating to the affairs of the Unit or of any person, which

they have acquired in the performance of their duties or the

exercise of their functions under this Act except

(a) when authorised to do so under any of the

provisions of this Act;

(b) for the purpose of the performance of

their duties or the exercise of their functions under

this Act;

(c) to any competent court or tribunal in any

appeal proceedings instituted in accordance with the

provisions of article 13A, or in proceedings to which

the Unit is a party for the purpose of the enforcement

of any penalty imposed by the Unit under this Act;

(d) in the form of an aggregation of data or

other statistical information, which in the opinion of

the Unit does not lead to the identification of any

specific person and which does not prejudice any

analysis or investigation; and

(e) when specifically and expressly required

to do so under a provision of any law

Provided that nothing in this article shall be

construed as requiring the Unit to disclose any

information received in carrying out its functions

under sub-articles 16(1)(a), 16(1)(b) and 16(1)(k) or

information which may prejudice any analysis or

investigation.";

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

as sub-article (2) and (3) and sub-article (2) thereof shall be

(c) in sub-article (2) thereof, as renumbered, the words

"The Unit may, in particular, refuse to disclose any document or

information" shall be substituted by the words "Without

prejudice to the provisions of article 27A, the Unit shall not be

obliged to provide any information or disclose any documents,

and may refuse to do so";

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

"a competent authority in Malta or outside Malta" shall be

substituted by the words "an authority in Malta or outside

Malta"; and

(e) in the proviso of sub-article (3) thereof, as

renumbered the words "shall not, without the express consent of

the Unit, be used" shall be substituted by the words "shall not,

without the express consent of the Unit, be further disseminated

or be used".

21. In paragraph (a) of article 35 of the principal Act, the words Amendment of

"fees payable to the Unit" shall be substituted by the words "fees article

principal Act.

charged by and payable to the Unit".

Passed by the House of Representatives at Sitting No. 59 of the 29th

November, 2017.

CLAUDETTE BUTTIGIEG

Deputy Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€1.44