ACT No. XXI of 2018 AN ACT to amend the National Interest (Enabling Powers) Act, Cap. 365, and to provide for matters ancillary or consequential thereto.

I assent.

(L.S.)

MARIE-LOUISE

COLEIRO PRECA

President

31st May, 2018

ACT No. XXI of 2018

AN ACT to amend the National Interest (Enabling Powers) Act,

Cap. 365, and to provide for matters ancillary or consequential

thereto.

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

consent of the House of Representatives, in this present Parliament

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

The short title of this Act is the National Interest (Enabling Short title.

Powers) (Amendment) Act, 2018, and this Act shall be read and

construed as one with the National Interest (Enabling Powers) Act, Cap. 365.

hereinafter referred to as "the principal Act".

Article 2 of the principal Act shall be amended as follows

Amendment of

article 2 of the

principal Act.

(a)

immediately before the definition "Charter" there

shall be added the following new definition

" "the Board" means the Sanctions Monitoring

Board established under article 7 of this Act;";

(b) immediately after the definition "Charter" there

shall be added the following new definitions

'' '' Council of the European Union'' means the

Council established by the Treaty;

"the European Union" means the European Union

as referred to in the Treaty;

"freeze" means to prohibit the transfer, conversion,

disposition or other movement of a property;" ;

(c)

immediately after the definition "international

treaty" there shall be added the following new definition

" "the Minister" means the Minister responsible for

foreign affairs;";

(d) immediately after the definition "prohibition" there

shall be added the following new definition

'' ''Regulation of the Council of the European Union''

means any Council Regulation which from time to time may

be published by the European Union imposing sanctions of

whatever nature referred to in the Official Journal of the

European Union, * and includes any amendment thereto,

including any amendment or addition to any related list of

designated persons or entities, and any repealing

Regulation;";

(e)

immediately after the definition "trade" there shall

be added the following new definition

" "the Treaty" means the Treaty referred to in

article 2 of the European Union Act;"; and

(f)

immediately after the definition "United Nations"

there shall be added the following new definition

" "United Nations Security Council Resolution"

means any Council Resolution which from time to time

may be published by the United Nations Security Council

imposing sanctions of whatever nature, referred to in the

yearly compendiums of United Nations Security Council

* http://eur-lex.europa.eu/oj/direct-access.html/ or

https://eeas.europa.eu/headquarters/headquarters-homepage/search/site/consoli-

dated%20list_en

resolutions and decisions, * and includes any amendment

thereto, including any amendment or addition to any related

list of designated persons or entities, and any repealing

Resolution.".

Article 3 of the principal Act shall be amended as follows

Amendment of

article 3 of the

principal Act.

(a)

sub-article (1) thereof shall be amended as follows

(i) immediately after the word ''advices'' there

shall be added the word '', recommends'' and after the word

''advised'' there shall be added the word '', recommended'';

and

(ii) for the words ''sub-articles (4), (7) and (8) of

this article'' there shall be substituted the words ''sub-

article (4)'';

(b)

sub-article (2) thereof shall be amended as follows

(i) for the words ''sub-articles (4), (7) and (8) of

this article'' there shall be substituted the words ''sub-

article (4)''; and

(ii) immediately after the word ''advice'' there shall

be added the word ", recommendation";

(c)

in sub-article (3) thereof, the words "and subject to

the provisions of sub-articles (7) and (8)" shall be deleted;

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

following

" Domestic

(4) (a)

Whenever the Prime Minister

Restrictive

considers that the national or international

Measures and

interests of Malta so require, he may, on the

Sanctions.

recommendation of the Sanctions Monitoring

Board and of the Attorney General, by

regulations under this Act, order -

(i)

the designation of any person

or entity;

* https://www.un.org/sc/suborg/en/sanctions/un-sc-consolidated-list

https://www.un.org/press/en

(ii)

that any natural or legal person

in Malta immediately freeze, without prior

notice, all property of a designated person

or entity or of any other persons or entities

as may be indicated in the order;

(iii) that any natural or legal person

in Malta immediately freeze, without prior

notice, all property that is owned or

controlled, whether wholly or jointly,

directly or indirectly, by a designated person

or entity; or property that is derived or

generated from other funds or assets that are

owned or controlled, directly or indirectly,

by a designated person or entity; and

property of any person or entity acting on

behalf of or at the direction of a designated

person or entity;

(iv) that no Maltese citizen or any

person or entity located in Malta shall

make available any property or financial

services or other related services, directly

or indirectly, wholly or jointly, to or for the

benefit of a designated person or entity; or

an entity owned or controlled, directly or

indirectly, by a designated person or entity;

or a person or entity acting on behalf of, or

at the direction of, a designated person or

entity, unless licensed, authorised or

notified for such purpose;

(v) the investigation of any matter

relating to the designation of any person or

entity, the confiscation of property of any

designated person or entity and the

applicability,

mutatis

mutandis,

or

otherwise of any provisions of any other

law including but not limited to the

Criminal Code, the Dangerous Drugs

Ordinance, the Medical and Kindred

Professions Ordinance and the Prevention

of Money Laundering Act in respect of the

property of a designated person or entity, or

of a person or entity who is subject to an

investigation which may lead to the

designation of that person or entity; or

(vi) the amendment or revocation of

any order made under sub-paragraphs (i),

(ii), (iii), (iv) and (v) as may be stated in the

regulations.

(b) Nothing

shall

preclude

the

application of the measures referred to in this

Act with respect to organizations or factions in

any country or countries or part thereof, as may

be stated in the regulations.

(c) For purposes of this Act

"person" shall include a body or

association of persons, whether corporate

or incorporate; and

"property"

shall

mean

assets,

including but not limited to financial assets,

economic resource, including oil and other

natural resources, property of every kind,

whether tangible or intangible, moveable or

immoveable, however acquired, and legal

documents or instruments in any form,

including electronic or digital, evidencing

title to, or interest in, such funds or other

assets, and any interest, dividends, or other

income on or value accruing from or

generated by such funds or other assets, and

any other assets which potentially may be

used to obtain funds, goods or services.";

(e)

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

article" there shall be substituted the words "under this Act";

(f)

in sub-article (6) thereof, for the words "under this

article" there shall be substituted the words "under this Act";

and

(g)

sub-articles (7) and (8) thereof shall be deleted.

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

articles to the

principal Act.

be added the following new articles

" European

4. (1)

For the purposes of this Act

Union

and of article 3 of the European Union Act,

Regulations.

Regulations of the Council of the European

Union imposing sanctions or applying restrictive

measures of whatever nature, or which advise,

recommend, direct or order Member States of

the European Union to take such action as may

be advised, recommended, directed or ordered,

whether published before or after the coming

into force of this article, shall be binding in their

entirety in Malta and shall be part of the

domestic law thereof under conditions laid down

in the Treaty.

(2) The provisions of article 3(4)(e) of

the Interpretation Act shall apply to Regulations

of the Council of the European Union referred to

in this Act and to any amendment thereto and

any repealing Regulation.

(1)

For the purposes of this Act,

United Nations

Security

United Nations Security Council Resolutions

Council

Resolutions.

imposing sanctions or applying restrictive

measures of whatever nature, or which advise,

recommend, direct or order Member States of

the United Nations to take such action as may be

advised, recommended, directed or ordered,

whether published before or after the coming

into force of this article, shall be automatically

binding in their entirety in Malta and shall be

part of the domestic law thereof.

(2) The provisions of article 3(4)(e) of the

Interpretation Act shall, mutatis mutandis, also

apply to United Nations Security Council

Resolutions referred to in this Act and to any

amendment thereto and any repealing Resolution;

and the reference, in the said article, to

publication in the Official Journal shall, in the

case of United Nations Security Council

Resolutions, be construed as a reference to

publication in the yearly compendiums referred to

in article 2.

(1)

Any person who acts in

Offences and

penalties.

violation of regulations made under this Act or

of a Regulation of the Council of the European

Union or of a United Nations Security Council

Resolution shall be guilty of an offence and

shall, on conviction, be liable to imprisonment

for a term from twelve months to twelve years or

to a fine (multa) of not less than twenty-five

thousand euro (€25,000) and not exceeding five

million euro (€5,000,000), or to both such

imprisonment and fine.

(2) The provisions of article 121D of the

Criminal Code shall, mutatis mutandis, apply to

the offences under this Act, so however that the

punishment to which the body corporate shall be

liable under this sub-article shall be that of the

payment of a fine (multa) of not less than eighty

thousand euro (€80,000) and not exceeding ten

million euro (€10,000,000).

(3) The body corporate shall also be held

liable for an offence under this Act where the

lack of supervision or control by a person

referred to in article 121D of the Criminal Code

has made possible the commission of the offence

for the benefit of the body corporate, which shall

upon conviction be liable to the punishment laid

down in sub-article (2).

(4) Without prejudice to any other

punishment to which the offence may be liable

under this Act or any other law, where the

offender is a body corporate liable to

punishment under the provisions of sub-articles

(2) and (3), the Court may, at the request of the

prosecution, order -

(a)

the suspension or cancellation

of any licence, permit or other authority to

engage in any trade, business or other

commercial activity;

(b) the temporary or permanent

closure of any establishment which may

have been used for the commission of the

offence;

(c)

the compulsory winding up of

the body corporate;

(d) exclusion from entitlement to

public benefits or aid.

(4A) Where an offence against the

provisions of this Act is committed by a body

corporate, every person who, at the time of the

commission of the offence, was a director,

manager, secretary or other similar officer of

such body corporate, shall be guilty of an

offence unless he proves that the offence was

committed without his knowledge and that he

exercised all due diligence to prevent the

commission of the offence.

(5) (a) Where an item the export,

transit or transhipment of which would be

contrary to restrictive measures in force, such

item shall be forfeited in accordance with the

provisions of the Customs Ordinance on the

forfeiture of prohibited goods and of goods the

importation of which is restricted, including in

accordance with the provisions relating to the

claiming back of the seized goods in the same

Ordinance. Such forfeiture shall be made

following the recommendation of the Board.

(b) Items which are forfeited in

accordance with paragraph (a) shall be

disposed of in accordance with the

recommendation of the Board. In giving its

recommendation, the Board shall consider

the most economically advantageous

option for disposal in full adherence with

the laws and regulations in force in Malta.

(c)

The provisions of this sub-

article shall also apply to all goods which

are in Malta at the time of the coming into

force of this Act, irrespective of the date of

their arrival in Malta.

(6) The provisions of articles 21 and 28A

of the Criminal Code and the provisions of the

Probation Act shall not apply in respect of any

person convicted of an offence under this Act.

(7) Without prejudice to the provisions

of article 5 of the Criminal Code, the Maltese

courts shall also have jurisdiction over the

offences referred to in this Act where

(a)

only part of the action giving

execution to the offence took place in

Malta; or

(b) the offender is a Maltese

national or habitual resident in Malta or the

offence was committed for the benefit of a

body corporate registered in Malta; or

(c)

where the gain from the

commission of the offence was received in

Malta; or

(d) where a person in Malta

knowingly assisted or induced another

person to commit the offence.

(1)

There shall be a Sanctions

Sanctions

Monitoring

Monitoring Board having the functions set out in

Board,

composition

this Act.

and functions.

(2) The Sanctions Monitoring Board

shall be composed of a representative of the

Ministry for Foreign Affairs who shall be

Chairman, the Attorney General or his

representative, the Commissioner of Police or

his representative, a representative of the Office

of the Prime Minister, a representative of the

Financial Intelligence Analysis Unit, a

representative of the Malta Security Service, a

representative of the Ministry responsible for

home affairs, a representative of the Ministry

responsible for defence, a representative of the

Ministry

responsible

for

finance,

a

representative of the Ministry responsible for the

economy, a representative of the Trade

Department, a representative of the Customs

Department, a representative of the Central Bank

of Malta, a representative of the Malta Financial

Services Authority, a representative of the

Ministry responsible for maritime affairs, a

representative of the Ministry responsible for

aviation matters, a representative of the Ministry

responsible for lands and a representative of the

Ministry responsible for immigration matters.

(3) A Deputy Chairman shall be

appointed by the Minister from among the

members of the Board.

(4) There shall be a Secretary to the

Board appointed from among serving officers of

the Ministry for Foreign Affairs, on the advice of

the Chairman. The Secretary shall take the

minutes of Board meetings.

(5) (a)

The Board shall have the

function to

(i) monitor

the

implementation and operation of

sanctions imposed by regulations

made under this Act, Regulations of

the Council of the European Union

and United Nations Security Council

Resolutions and, where applicable, to

harmonise practice thereon with that

followed by other states;

(ii) propose

persons

or

entities to be designated by the United

Nations Security Council, or by the

Council of the European Union or for

a designation by order under article

3(4)(a) of this Act;

(iii) propose the delisting of

any designated person or entity, by

the United Nations Security Council

or by the Council of the European

Union or by order under article

3(4)(a) of this Act, or the unfreezing

of property of any person or entity

which property was frozen in

accordance with the provisions of this

Act;

(iv) receive and consider

applications from designated persons

or entities for delisting, or unfreezing

of property, where the criteria for

designation or freezing are not met, or

are no longer met, and from persons or

entities who have been erroneously or

inadvertently designated, and make

recommendations in accordance with

paragraph (iii); and

(v) authorize

access

to

frozen funds or other assets which the

Board determines to be necessary for

basic expenses, for the payment of

reasonable costs and fees for legal,

medical, professional or other essential

services,

or

for

documented

extraordinary expenses.

(b) The Board shall, in the exercise

of its functions, have the power to take

decisions, make recommendations, grant

authorisations, issue rulings, issue

guidance and notices, and refer to the

relevant authorities for action, assistance

or information.

(c) The Board shall have such

other functions as may be assigned to it by

the Prime Minister, by regulations made

under this Act.

(6) The Board shall at the end of each

year, or earlier if so requested, make a report of

its activities to the Prime Minister and to the

Minister responsible for foreign affairs.

The Chairman shall be the Head of

Powers and

functions of the

the Board and the Deputy Chairman shall have

Deputy

Chairman.

all the powers and perform all the functions of

the Chairman during his absence or inability to

act as Chairman or while he is on vacation or

during any vacancy in the office of Chairman.

(1)

The Board shall meet within

Meetings of the

Board.

one month from its constitution and as often as

may be necessary or expedient thereafter, but in

no case less frequently than twice in each year.

The meetings of the Board shall be called by the

Chairman on his own initiative or at the request

of any two of the other members.

(2) The Board shall not act unless a

quorum consisting of the Chairman or Deputy

Chairman and not less than two other members

is present.

(3) The meetings of the Board shall be

chaired by the Chairman or, in his absence, by

the Deputy Chairman.

(4) The decisions of the Board shall be

adopted by a simple majority of the votes of the

members present and voting and in the event of

an equality of votes the member presiding at the

meeting shall have and exercise a second or

casting vote.

(5) Any vacancy among the members of

the Board, and any participation therein by a

person not entitled so to do, shall not invalidate

the proceedings of the Board.

(6) Subject to the provisions of this Act,

the Board may regulate its own procedure.

(7) The Chairman may, following

consultation with Board members, invite

observers on the Board as and when required

provided they have the necessary security

clearance.

(8) All acts done by any person acting in

good faith as a member of the Board shall be

valid as if he were a member notwithstanding

that some defect in his appointment or

qualification be afterwards discovered.

In cases of emergency, decisions

Decisions in

cases of

shall be taken by at least two members of the

emergency.

Board, one of whom shall be the Chairman or

Deputy Chairman.

A person may, in writing, request the

Sanctions

Monitoring

Board to give a ruling on whether an action

Board Ruling.

intended by him falls to be prohibited by any

particular regulation made under the Act, or by

any Regulations of the Council of the European

Union, or by any United Nations Security

Council Resolutions and no liability shall attach

under any such regulations or Regulations of the

Council of the European Union or United

Nations Security Council Resolutions where a

person has acted in conformity with any such

ruling. A ruling in terms of this article shall be

given within such time as may be prescribed by

the Minister.

No liability, criminal or civil, shall

Exemption

from liability.

attach to any member of the Board for any action

done, or omitted to be done, in good faith in the

discharge or purported discharge of any function

as a member thereof.

The members of the Board shall

Secrecy.

regard any matter coming to their knowledge in

any request under article 11 as secret and

confidential, and shall not in any report made in

accordance with article 7(6), reveal the names or

other identifying particulars known to them in

connection with any such request.

(1)

The legal and judicial

Legal and

judicial

representation of the Board shall vest in the

representation.

Chairman and, in his absence, in the Deputy

Chairman

Provided that the Board may appoint

any one or more of its other members or of its

officers or employees to appear in the name and

on behalf of the Board in any judicial

proceedings and in any act, contract, instrument

or other document whatsoever.

(2) Any document purporting to be an

instrument made or issued by the Board and to

be signed by the Chairman or by the Deputy

Chairman on behalf of the Board shall be

received in evidence and shall, until the contrary

is proved, be deemed to be an instrument made

or issued by the Board.

(1)

Without prejudice to the

Co-operation

with Board.

generality of the provisions of this Act, the

Board shall, in the exercise of its functions under

this Act, co-operate with competent law

enforcement authorities, the Security Service, the

Financial Intelligence Analysis Unit, public and

regulatory authorities, Government Ministries,

departments, agencies and entities and regulatory

authorities to ensure that regulations made under

this Act, Regulations of the Council of the

European Union and United Nations Security

Council Resolutions are observed.

(2) Without prejudice to the special

provisions of any other law applicable to them,

the authorities and entities mentioned in sub-

article (1) shall extend all assistance and co-

operation to the Board in the fulfilment of its

functions and responsibilities under this Act, and

where necessary, in accordance with any

memorandum of understanding that the Board

may conclude with any of the aforementioned

authorities and entities, taking into account the

domestic and international obligations of the

same authorities, entities and the Board.

(1)

Notwithstanding

anything

Power of the

Board to

contained in any other law, the Board may, in the

request

information.

exercise of its functions under this Act, request

from any person, physical or legal, and any

authority or entity, any information it deems

necessary, relevant and useful for the purpose of

pursuing its functions under this Act.

(2) Notwithstanding anything contained

in the Professional Secrecy Act and any

obligation of secrecy or confidentiality under

any other law, any person, physical or legal and

any authority or entity from whom information

is demanded by the Board in pursuance of its

functions under this Act, shall communicate

without delay the information requested to the

Board, and for the purposes of article 257 of the

Criminal Code any such disclosure shall be

deemed to be a disclosure of information to a

public authority compelled by law

Provided that nothing in this article

and in article 15 shall place or imply any

obligation on the competent law enforcement

authorities, the Security Service and the Financial

Intelligence Analysis Unit to communicate to the

Board any information which is deemed to be of a

privileged nature or the communication of which

may be in breach of their domestic or

international obligations or otherwise hinder or

prejudice the proper exercise of their functions;

and any communication of information by the

said authorities to the Board shall be in

accordance with Memorandum of Understanding

that shall be concluded for this purpose between

the Board and the said authorities, taking into

account their domestic and international

obligations. When a Memorandum of

Understanding is not in force the Board and the

said authorities, shall exchange information by

mutual agreement and in accordance with the

principles of this article

Provided further that nothing in this

article and in article 15 shall imply any

obligation on the Attorney General to

communicate to the Board any information

which in any way relates to or is connected with

or came into his possession as a result of the

exercise by him of any powers referred to in

article 91(3) of the Constitution or any

obligation on any person to communicate to the

Board any information which would in legal

proceedings be protected from disclosure by

article 642(1) of the Criminal Code or by article

588(1) of the Code of Organization and Civil

Procedure.

(1)

Notwithstanding

the

Freezing

measures.

provisions of this Act or of any other law, when

regulations are made under article 3(4)(a) or when

a United Nations Security Council Resolution or

a Regulation of the Council of the European

Union is published imposing freezing measures

on property of a person or entity designated by

the said Resolution or Regulation or in annexes

thereto, such regulations, Resolution or

Regulation shall immediately upon publication be

tantamount to a freezing order having the force of

law in Malta.

(2) A freezing order as is mentioned in

sub-article (1) shall have the effect of

(a)

attaching, without delay or prior

notice, all property due or pertaining or

belonging to the designated person or entity,

or that is wholly or jointly owned or

controlled, directly or indirectly, by the

designated person or entity;

(b) attaching, without delay or

prior notice, all property that is derived or

generated from property that is owned or

controlled, directly or indirectly, by the

designated persons or entities;

(c)

attaching without delay or prior

notice all property of persons and entities

acting on behalf of or at the direction of the

designated person or entity;

(d) prohibiting

the

transfer,

conversion,

movement,

pledging,

hypothecating or otherwise disposing of any

property under paragraphs (a) to (c);

(e)

prohibiting any Maltese citizen

or any person or entity located in Malta

from making property, or financial services

or other related services available, directly

or indirectly, wholly or jointly, to or for the

benefit of a designated person or entity; or

an entity owned or controlled, directly or

indirectly, by a designated person or entity;

or to any person or entity acting on behalf

of, or at the direction of, a designated

person or entity, unless licensed, authorised

or notified in accordance with the relevant

United Nations Security Council Resolution

or Regulation of the Council of the

European Union or order issued under

article 3(4)(a).

(3) Such order shall become operative

and binding on all third parties immediately upon

the publication of the regulations, Resolution or

Regulation mentioned in sub-article (1), and shall

remain in force

(a)

in the case of an order made by

regulations under article 3(4)(a), until it is

revoked according to the provisions of

article 3(4)(a)(vi); and

(b) in the case of a Regulation of

the Council of the European Union or a

United

Nations

Security

Council

Resolution, until the delisting of the

designated person or entity is made by the

United Nations Security Council or by the

Council of the European Union, as the case

may be.

(4) Where any money is or becomes due

to a designated person or entity from any person

while a freezing order under this article is in

force, such money shall, unless otherwise

directed in that order, be deposited in a bank to

the credit of the designated person or entity.

(5) When such order ceases to be in

force as provided in sub-article (3)(b), a note of

cancellation of the registration of that order shall

be entered in the Public Registry.

(6) Any legal or natural person

conducting a relevant activity or relevant

financial business as defined in the Prevention of

Money Laundering Act shall be required to

(a)

regularly check the list of

designations by the United Nations, the

European Union, and the Board, and to

screen their client databases against those

lists on a regular basis and immediately

after a change to any of these lists occurs;

(b) have in place and effectively

implement internal controls and procedures

to ensure compliance with the obligations

arising from this Act and any relevant

United Nations or European Union

Resolutions or regulations; and

(c)

immediately notify the Board in

case targeted property is identified, and of

the actions taken in relation to such property

in compliance with the requirements under

this Act, including in relation to any

attempted transactions.

(7) Any legal or natural person conducting

a relevant activity or relevant financial business

as defined in the Prevention of Money

Laundering Act shall be prohibited from

informing the customer or any third party in

advance that a freezing measure pursuant to this

Act is to be applied.

An appeal from an order issued under

Appeal.

article 3(4)(a) of this Act, can be lodged through

an application in the First Hall Civil Court.".

5. (1) For the words "Kunsill tas-Sigurezza" wherever they

appear in the Maltese text of the principal Act, there shall be

substituted the words "Kunsill tas-Sigurtà".

(2) For the words "Nazzjonijiet Uniti" wherever they appear in

the Maltese text of the principal Act, there shall be substituted the

words "Nazzjonijiet Magħquda".

6. (1) All subsidiary legislation made under the principal

Act, as in force on the date of the coming into force of this Act, is

hereby revoked, without prejudice to anything done thereunder.

(2) Any reference in any law to the "Sanctions (Monitoring

Board) Regulations" shall be construed as a reference to the

principal Act.

Passed by the House of Representatives at Sitting No. 121 of the

30th May, 2018.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€1.98