act_2018_36

MT

ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

115 Articles / Provisions · Malta

Open official source Machine-readable Markdown (.md)

Table of Provisions (115)

Preamble Art. 1 Second Schedule Art. 2 Third Schedule Art. 3 Amendment of article 2 of the principal Act. Fourth Schedule Art. 4 Art. 5 Art. 6 Amendment of article 5 of the principal Act. Art. 7 Amendment of article 7 of the principal Act. Art. 8 Art. 9 Amendment of article 9 of the principal Act. Art. 10 Amendment of article 10 of the principal Act. Art. 11 Amendment of article 11 of the follows: principal Act. Art. 12 Art. 13 Addition of new articles to the principal Act. Art. 14 Art. 15 Amendment of article 14 of the follows: principal Act. Art. 16 Amendment of article 16 of the follows: principal Act. Art. 17 Art. 18 Amendment of article 18 of the principal Act. issuing". Art. 19 Amendment of article 19 of the follows: principal Act. Art. 20 Amendment of article 20 of the principal Act. Art. 21 Amendment of article 21 of the principal Act. Art. 22 Art. 23 Art. 24 Amendment of article 25 of the follows: principal Act. Art. 25 Art. 32 Art. 35 " The Malta Art. 36 Art. 38 "Voluntary organisations not to be established for trade. Art. 39 "Guidelines issued by the Commissioner. Art. 40 Art. 41 Art. 42 Art. 43 Amendment of article 3 of the Second Schedule. Art. 44 Amendment of article 4 of the Second Schedule. Art. 45 Amendment of article 5 of the follows: Second Schedule. Art. 46 Art. 47 Art. 48 Amendment of article 8 of the follows: Second Schedule. Art. 49 Art. 50 Art. 51 Art. 52 Amendment of article 13 of the follows: Second Schedule. Art. 53 Art. 54 Art. 55 Art. 56 Art. 57 Amendment of article 19 of the follows: Second Schedule. Art. 58 Art. 59 Art. 60 Amendment of article 21 of the Second Schedule. Art. 61 Amendment of article 22 of the follows: Second Schedule. Art. 62 Art. 63 Substitution of article 23 of the the following: Second Schedule. Art. 64 Amendment of article 24 of the follows: Second Schedule. Art. 65 Art. 66 Art. 67 Amendment of article 27 of the Second Schedule. Art. 68 Substitution of article 28 of the Second Schedule. Art. 69 Amendment of article 29 of the follows: Second Schedule. Art. 70 Art. 71 Art. 72 Amendment of article 31 of the Second Schedule. Art. 73 Addition of new articles to the Second Schedule. Art. 74 Art. 75 Substitution of article 32A of the Second Schedule. Art. 76 Art. 77 Amendment of article 34 of the follows: Second Schedule. Art. 78 Amendment of article 35 of the follows: Second Schedule. Art. 79 Art. 80 Amendment of article 37 of the follows: Second Schedule. Art. 81 Amendment of article 38 of the Second Schedule. Art. 82 Substitution of article 40 of the Second Schedule. Art. 83 Art. 84 Amendment of article 42 of the follows: Second Schedule. Art. 85 Art. 86 Art. 87 Art. 88 Amendment of article 47 of the Second Schedule. Art. 89 Amendment of article 48 of the follows: Second Schedule. Art. 90 Art. 91 Amendment of article 49 of the Second Schedule. Art. 92 Art. 93 Art. 94 Art. 95 Amendment of article 54 of the follows: Second Schedule. Art. 96 Substitution of article 55 of the Second Schedule. Art. 97 Amendment of article 56 of the follows: Second Schedule. Art. 98 Art. 99 Art. 100 Amendment of article 60 of the follows: Second Schedule. Art. 101 Amendment of article 62 of the follows: Second Schedule. Art. 102 Amendment of article 64 of the Second Schedule. Art. 103 Amendment of article 65 of the Second Schedule. Art. 104 Art. 105 Art. 106 Art. 107 Art. 108 Art. 109 Art. 110 Art. 111 Amendments to the Notarial Profession and Notarial Archives Act. Art. 112 Amendment of article 50 of the follows: principal Act. Art. 113 Art. 114 Substitution of article 68B of following: the principal Act. Art. 115 Art. 116 Art. 117 Amendments to the Companies Act. principal Act". Art. 118 Amendment of article 30 of the deleted. principal Act. Art. 119 Addition of new article to the principal Act. Art. 127A "Shares in companies held by private foundations, including those with segregated cells.

Statutory Text (115 Articles)

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Preamble — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

I assent.

(L.S.)

MARIE-LOUISE

COLEIRO PRECA

President

6th November, 2018

ACT No. XXXVI of 2018

AN ACT to amend the Voluntary Organisations Act and to make

consequential and other amendments to the Civil Code and to the

Second Schedule to the Civil Code, the Public Collections Act, the

Notarial Profession and Notarial Archives Act, the Arbitration Act

and the Companies Act.

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:-

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 1 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

The short title of this Act is the Voluntary Organisations Short title.

(Amendment) Act, 2018.

Part I - Amendments to the Voluntary Organisations Act

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Second Schedule — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Organisations, which are exempt from mandatory enrolment with the

Commissioner pursuant to article 12C of this Act *

PART I

International public benefit, non-profit making or voluntary

organisations established by international treaty, or their local branch,

which are exempted by any special law from being subject to

enrolment.

The exemption under this Part I shall apply, provided that such

international organisations do not make or intend to make public

collections, and this, subject to any applicable provisions of any

treaty, any special law or other agreement relating to such

organisations.

PART II

Organisations which are registered with SportMalta in terms of the

Sports Act.

The exemption under this Part II shall apply provided that such

organisations do not engage in any of the activities in article

12B(1)(a) to (d) of this Act.

* These organisations are free to enrol at any time upon complying with the

requirements of this Act.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 2 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

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

with the Voluntary Organisations Act, hereinafter in this Part referred the

Organisations

to as "the principal Act".

Act.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Third Schedule — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Form A

VOLUNTARY ORGANISATIONS ACT

(CAP. 492)

Non-Enrolment Notice - Notification by a non-enrolled voluntary

organisation to the Commissioner pursuant to article 12D

Name of Organisation ........................................................... ("the Organisation")

Delivered by ..........................................................................................................

To the Commissioner for Voluntary Organisations

The Organisation hereby notifies the Commissioner that

(a)

it is a voluntary organisation in terms of article 3 of the Voluntary

Organisations Act ("the Act") established in writing as an association,

foundation or trust (1) on the (2) ................................. and is not enrolled

in terms of such Act;

(b)

it is not subject to mandatory enrolment in terms of the Act because

the address of the Organisation is: ...................................................................

(where applicable) it is a legal person and its registration number is

the sector of activity in which it operates is .....................................................

and its principal purpose is ..............................................................................

to (3)

all

communications

may

be

made

by

and

..................................................... as the responsible administrator appointed

for the purpose at the address mentioned in (b) above.

The administrators are aware that if the activities of the organisation are such

as to fall within the terms of article 12B of the Act they are obliged to enrol

the organisation in accordance with article 12B of the Act.

Signature: ...............................................

Name: .....................................................

Responsible Administrator

Dated this ........................... day of .................................. of the year .............

(1)

Delete as applicable

(2)

State date of establishment

(3)

Insert name and surname of responsible administrator

Form B

VOLUNTARY ORGANISATIONS ACT

(CAP. 492)

Notice of change in name/address (1) of a non-enrolled voluntary

organisation pursuant to article 12D

Name of Organisation (2) .................................................("the Organisation")

Address (2) :.......................................................................................................

Delivered by: ..................................................................................................

To the Commissioner for Voluntary Organisations

The Organisation hereby gives notice, in accordance with article 12D of the

Voluntary Organisations Act, that

with effect from (3) ....................................... its name has been changed

(i)

to ...........................................................................................................

with effect from (4) .......................................................... it has changed

(ii)

its address and its new address is ...........................................................

Signature: ..................................................

Name: .......................................................

Responsible Administrator

Dated this ......................... day of ................................. of the year ................

(1)

Delete as applicable

(2)

Indicate old name/address as applicable

(3)

State date when change in name occurred

(4)

State date when change in address occurred

Form C

VOLUNTARY ORGANISATIONS ACT

(CAP. 492)

Notice of change in local representative/administrator (1)

of a non-enrolled voluntary organisation pursuant to article 12D

Name of Organisation ..................................................... ("the Organisation")

Address: ..........................................................................................................

Delivered by: ..................................................................................................

To the Commissioner for Voluntary Organisations

The Organisation hereby gives notice, in accordance with article 12D of the

Voluntary Organisations Act that

with effect from (2) ................................................. the person currently acting

as a local representative of the Organisation is no longer exercising such

function and

Name:..............................................................................................................

Address:...........................................................................................................

Identification number:......................................................................................

has been appointed as local representative in his/her stead.

with effect from (2) ...................................... the administrator who was

responsible for making and receiving communications on behalf of the

Organisation is no longer exercising such function and

Name:..............................................................................................................

Address:...........................................................................................................

Identification number:......................................................................................

has been appointed to carry out such function in his/her stead.

Signature: ...........................................

Name: .................................................

Responsible Administrator

Dated this ...................... day of ........................... of the year .........................

(1)

Delete as applicable

(2)

State date when new appointment was made

Form D

VOLUNTARY ORGANISATIONS ACT

(CAP. 492)

Notice of merger of a non-enrolled voluntary organisation pursuant to

article 12D

Name of Organisation ..................................................... ("the Organisation")

Address: ..........................................................................................................

Delivered by: ..................................................................................................

To the Commissioner for Voluntary Organisations

(a)

residing at ................................................ hereby gives notice, in

accordance with article 12D of the Voluntary Organisations Act that

the Organisation has been merged with the following organisation/s

(b)

and will continue as an organisation with the following details

Name:..............................................................................................................

Address: ..........................................................................................................

Registration Number: ......................................................................................

The notification of the Organisation may be removed from the List of Non-

Enrolled Voluntary Organisations.

Signature: .................................................

Name: ......................................................

Responsible Administrator

Dated this ...................... day of ................................... of the year .................

(a)

State name and residence of Responsible Administrator

(b)

State name(s) of organisation(s) amalgamating with the Organisation

Form E

VOLUNTARY ORGANISATIONS ACT

(CAP. 492)

Notice of dissolution and winding up of a

non-enrolled voluntary organisation pursuant to article 12D

Name of Organisation ..................................................... ("the Organisation")

Address: ..........................................................................................................

Delivered by:...................................................................................................

To the Commissioner for Voluntary Organisations

(a)

................................... residing at ............................................ hereby

gives notice, in accordance with article 12D of the Voluntary

Organisations Act that the Organisation has been dissolved and wound

up and that its notification may be removed from the List of Non-

Enrolled Voluntary Organisations.

Signature: ................................................

Name: .....................................................

Responsible Administrator

Dated this ....................... day of ............................... of the year ....................

(a)

State name and residence of Responsible Administrator

Form F

VOLUNTARY ORGANISATIONS ACT

(CAP. 492)

Enrolment of a Foreign Organisation pursuant to article 12F

Name of Organisation: ................................................... ("the Organisation")

Delivered by: ..................................................................................................

The Organisation hereby notifies the Commissioner that

(i)

it is registered or established under the laws of .....................................

bearing registration number ............................. and having a registered

office at ................................................................................................;

(ii)

it is substantially established for the public purpose or public benefit of

..............................................................................................................;

(iii)

it is substantially non-profit making and voluntary for the purposes of

the Voluntary Organisations Act.

The Organisation gives notice that

Name:..............................................................................................................

Address: ..........................................................................................................

Identification number:......................................................................................

has been appointed as local representative of the Organisation. The

Organisation confirms that the said person has accepted to so act.

Signature: .............................................

Name: ...................................................

Responsible Administrator

Dated this ........................... day of ................................. of the year ..............

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 3 Amendment of article 2 of the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 2 of the principal Act shall be amended as follows

(a)

in sub-article (1) thereof

(i) immediately after the definition "the

Commissioner" there shall be added the following new

definition

" "controlled by a religious organisation"

means that the religious organisation or the authority

representing the same under the applicable Canon

law or other legislation governing religious

organisations, has the power, whether directly or

indirectly, to nominate, appoint, change or remove

more than half of the administrators of the

organisation;";

(ii) the definition "controlled by the Government"

shall be substituted by the following new definition

" "controlled by the Government" means that

the Government of Malta has the power, whether

directly or indirectly, to nominate, appoint, change or

remove any of the administrators of the

organisation;";

(iii) immediately after the definition "controlled by

the Government", as substituted, there shall be added the

following new definition

" "controlled by, related or affiliated to a

political party" or similar terms means, in the

case of the controlled, related or affiliated

organisation, that

(a)

its

statute,

financial

statements or other documents expressly

state that it is controlled by, related or

affiliated to the political party; or

(b) it has been established by

the political party which supports it

financially; or

(c)

its remaining assets devolve

on the political party upon its dissolution,

and, in the case of a political party, that a

political party as defined in the Financing of

Political Parties Act, whether registered

under the said Act or otherwise

(i)

has the power, whether

directly or indirectly, to nominate,

appoint, change or remove more than

half of the administrators of the

organisation; or

(ii) is a beneficiary, in any

manner and at any time, of the income or

capital of the organisation; or

(iii) is the beneficiary of the

purposes of the organisation, including

the promotion of the specific vision,

policies and goals of the political party or

its candidates;";

(iv) the definition "the Council" shall be substituted

by the following new definition

" "the Council" means the Malta Council for

the Voluntary Sector established by article 35;";

(v) immediately after the definition "the Council",

as substituted, there shall be added the following new

definition

" "ecclesiastical entity" shall have the

meaning assigned to it by article 26 of the

Second Schedule to the Civil Code;";

(vi) immediately after the new definition

"ecclesiastical entity" there shall be added the following

new definition

" "Financial Intelligence Analysis Unit"

means the unit set up by article 15 of the

Prevention of Money Laundering Act;";

(vii) immediately after the new definition "Financial

Intelligence Analysis Unit" there shall be added the

following new definition

" "funding of terrorism" means the

conduct described in articles 328B and 328F

to 328I, both inclusive, of the Criminal

Code;";

(viii) immediately after the new definition "funding

of terrorism" there shall be added the following new

definition

" "Government" means the Government of

Malta, and includes any Local Council, statutory

corporation, public agency and other organisation of

whatever legal form controlled by the Government

and also includes the President of Malta;";

(ix) immediately after the new definition

"Government" there shall be added the following new

definition

" "interested party" means a person who is

given rights capable of economic valuation, present

or future, actual or contingent, in the statute of an

organisation or who is given powers or functions

therein and shall not include other persons unless the

context otherwise requires, and this, without

prejudice to the right of any person to pursue any

civil right or remedy he may have;";

(x) immediately after the new definition

"interested party" there shall be added the following new

definition

" "lawful purpose" means a purpose other than

a social or public purpose or public benefit, being a

legitimate purpose in terms of these provisions and

which may include a private benefit, provided such

private benefit is subject to the following conditional

requirements

(a) it is solely limited and incidental or

ancillary to the principal purpose and

objectives of the organisation;

(b) it is not directly attributable to

private individuals or members of the

organisation; and

(c) it is not capable of promoting any

form of private interest, irrespective of whether

or not such private interest involves any

economic interests, or any form of economic

contributions, or is otherwise capable of

economic evaluation;";

(xi) immediately after the new definition "lawful

purpose" there shall be added the following new definition

" "market conditions" and "market levels"

mean

(a) in the case of goods, the standard

market;

(b) in the case of services, the standard

or level of remuneration, normally paid

(i) by voluntary organisations of

the same legal form and operating in the

same or in a similar area of activity; and

(ii) to persons in the same or in a

similar office or role and, or under the

same or similar conditions and having the

same or similar qualifications; and

(c) in all other cases, the normal

commercial standards

Provided that, on a local level, such

market levels and conditions shall be

applicable

(i) in the case of voluntary

organisations with a generated revenue

and income of less than fifty thousand

euro (€50,000), these shall be made

subject to Category 1 enrolment

organisations in terms of the Voluntary S.L. 492.01.

Organisations (Annual Returns and

Annual Accounts) Regulations;

(ii) in the case of voluntary

organisations with a generated revenue

and income exceeding fifty thousand euro

(€50,000) but less than two hundred fifty

thousand euro (€250,000), these shall be

made subject to the General Accounting

Principles for Small and Medium-Sized

Entities (GAPSME) in terms of S.L. 281.85.

Accountancy

Profession

(General

Accounting Principles For Small And

Medium-Sized Entities) Regulations and

shall apply without prejudice to the

Voluntary Organisations (Annual Returns

and Annual Accounts) Regulations; and

(iii) in the case of voluntary

organisations with a generated revenue

and income exceeding two hundred fifty

thousand euro (€250,000), these shall be

made subject to full audit by an auditor

and the International Financial Reporting

Standards (IFRS) shall apply

Provided further that, for the above

principles to apply, reference shall be

made to prices, standards or levels of the

market in the country where the relevant

activities take place

Provided also that, in case of

international organisations, which operate

from Malta, or in case of local

organisations,

which

operate

internationally, such organisations shall

be subject to International Financial

Reporting Standards (IFRS) which shall

apply without prejudice to the Voluntary

Organisations (Annual Returns and

Annual Accounts) Regulations;";

(xii) the definition "non-profit making" shall be

substituted by the following new definition

" "non-profit making", "not for profit", "non-

profit" and similar phrases shall be interpreted, as the

context may require, in accordance with the

principles, rules and guidelines in the First Schedule

to this Act;";

(xiii) the definition "pious foundation" shall be

substituted by the following new definition

" "pious foundation" shall have the

meaning assigned to it by article 26 of the

Second Schedule to the Civil Code;";

(xiv)

immediately after the definition "pious

foundation", as substituted, there shall be added the

following new definition

" "political party" shall have the

meaning assigned to it by article 2 of the

Financing of Political Parties Act and, for

the purpose of this Act, shall include any

other organisation, of whatever legal form,

which is controlled by, related or affiliated to

the political party, and the terms "political

candidate" and "political organisation" shall

be construed accordingly;";

(xv) immediately after the new definition "political

party" there shall be added the following new definition

" "political purpose" means the promotion of

the interests of a political party or a political

candidate, whether at local, national or international

level;";

(xvi) immediately after the definition "promoter"

there shall be added the following new definition

" "public agency" means any entity of

any legal form which is established to carry

out public administration in terms of the

Public Administration Act or any other law

and includes a statutory body;";

(xvii) immediately after the definition "public

collection" there shall be added the following new

definition

" "public purpose" or "public benefit"

means a social purpose which

(a)

promotes or serves the

general public interest or the interest of a

sector of the general public, whether

directly or indirectly

Provided that

(i) if, in the opinion of the

Commissioner, the organisation

does not reach sufficient levels of

promotion or service to the general

public interest or the interest of a

sector of the general public, he

may decide that this criteria is not

satisfied; and

(ii) such purpose is not to

be presumed to exist only because

the organisation has a "social

purpose" as defined in this Act;

(b) does not promote or serve

any private benefit unless such benefit is

solely limited and incidental or ancillary

to the principal purpose and objectives of

the organisation and as permitted by this

Act and, or the Second Schedule to the

Civil Code;

(c)

is of a continuing nature and

shall apply throughout the existence of

the voluntary organisation; and

(d) does not include a political

purpose;";

(xviii) immediately after the definition "Registrar for

Legal Persons" there shall be added the following new

definition

" "religious organisation" means

(a)

a pious foundation;

(b) an ecclesiastical entity and qualifies

as a diocese, parish, church or place of worship,

province or similar division of any religious

order, institute of consecrated life and a society

of apostolic life or an ecclesiastical community;

or

(c) a hospital, school, teaching or

counselling institute, orphanage or residential

or respite centre available to the public, which

is controlled by a religious organisation

referred to in paragraphs (a) and (b), whether

supported by volunteers or otherwise;";

(xix) immediately after the new definition "religious

organisation" there shall be added the following new

definition

" "remuneration" means any honorarium, wage,

salary, fee or other payment for services, whether

under a contract or otherwise, but shall not include

the refund of any expenses incurred on behalf of any

organisation;";

(xx) the definition of the term "social purpose" shall

be amended as follows

A. paragraph (d) thereof shall be substituted

by the following new paragraph

"(d) social

and

community

advancement, including the promotion of the

ethical, educational and social aspects of a

particular profession or trade, but which does

not include the promotion of any private

economic interest;";

B. in paragraph (h) thereof, the words

"social purpose organisations" shall be substituted by

the words "public benefit organisations", and the

word "or" shall be deleted;

C. paragraph (i) thereof

shall

be

re-

numbered as paragraph (j);

D. immediately after paragraph (h) thereof,

there shall be added the following new paragraph

"(i) the carrying out of activities

intended to raise funds to support other public

benefit, non-profit or voluntary organisations

or to generally support the voluntary sector as a

whole or parts of it through the application,

grant, transfer or otherwise making available of

funds so raised to them or for their benefit; or";

and

E. immediately after paragraph (j) thereof,

as re-numbered, there shall be added the following

new paragraph

"(k)

shall

not

include

a

political

purpose;";

(xxi) the definition "statute" shall be substituted by

the following new definition

" "statute" means a document which regulates

the continuing management and operation of a

voluntary organisation or any constitutive instrument

or public deed of the organisation whereby such

organisation is established, including a will which

provides for the setting up of such organisation;";

(xxii) the definition of the term "voluntary" shall be

amended as follows

A. for the words "the existence of one or

more of the following elements" there shall be

substituted the words "the existence of two or more

of the following elements";

B. in paragraph (a) thereof, for the words "as

hereunder permitted" there shall be substituted the

words "as permitted in this Act";

C.

in paragraph (c) thereof

(aa) immediately before the words

"subject to limitations due to the nature or

size of the organisation" there shall be

added the words "in the case of an

association,";

(bb) for the words "activities of the

organisation; and" there shall be

substituted the words "activities of the

organisation and every participant in the

organisation has the right to freely leave

the organisation:";

D.

paragraph (d) thereof shall be deleted;

and

E. sub-paragraphs (i) to (iii) of the proviso

thereto shall be substituted by the following new sub-

paragraphs

"(i) when a voluntary organisation is

established in the form of a foundation, only

one of the above elements must exist for the

organisation to be considered to be "voluntary";

(ii) when a member of a religious order

or authority carries out functions in a voluntary

organisation without remuneration, such

functions shall be considered to be "voluntary"

for the purposes of this definition if he or she is

not appointed or engaged to do so as a means to

carry out his vocational duties by the religious

order or authority of which he or she forms

part;

(iii) for the purposes of paragraph (c),

only those limitations and discretions which are

consistent with the Constitution of Malta and

the European Convention Act shall be

considered to be valid limitations and

discretions;";

(xxiii) the definition "voluntary organisation" shall

be substituted by the following new definition

" "voluntary organisation" means a foundation,

a trust, an association of persons or a temporary

organisation which qualifies under article 3;"; and

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

purpose", "voluntary" " there shall be substituted the words

" "social purpose", "public benefit", "public purpose",

"voluntary" ".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Fourth Schedule — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

TEMPORARY ORGANISATION

Application for the enrolment of a temporary organisation and the

constitutive instrument of such temporary organisation established

in accordance with the Voluntary Organisations Act pursuant to

article 16

Name of Organisation ………………....................……. ("the Organisation")

Delivered by: ..................................................................................................

Name

The name of the organisation is .......................................................................

Address

The address of the organisation is ...................................................................

Purpose

The organisation is formed with the one specific purpose of *

Necessary Acts

The temporary organisation shall perform the following necessary acts so as

to achieve the purpose for which it is established **

…………………………………………………………………………………

…………………………………………………………………………………

…………………………………………………………………………………

This one specific purpose may include the raising of funds for a specific public

purpose or to support another enrolled voluntary organisation, and can even be for

the benefit of a named individual who may need humanitarian support.

State acts such as paying for medical assistance, paying for flights or

accommodation, paying for repairs, equipment and the like.

Acts which may not be carried out by the

temporary organisation

The temporary organisation may only carry out the acts listed in

this constitutive instrument and ancillary and connected acts.

The temporary organisation may not

(a)

borrow money; or

(b) enter into binding financial obligations in advance of

raising the necessary funds to perform such obligations.

Administrators *

The administrators of the temporary organisation, who sign next

to their name to confirm their consent to act, shall be

1.

2.

3. Duration

This temporary organisation is established for ............................

months/1 Year ** . The temporary organisation shall pay out,

apply or otherwise distribute all its assets for the achievement of

the purpose by the expiry date of its term. If for any reason the

above cannot be complied with, the administrators shall, on the

lapse of the above mentioned period, select one of the following

options

a.

pays out the funds to another enrolled voluntary

organisation with purposes similar to its own with an

instruction to hold the funds and when possible use them

for the stated purpose or pay out the funds to the Voluntary

Organisations Fund;

The beneficiary, or if a minor, his or her parents cannot be administrators. This instrument

must be delivered to the Commissioner for Voluntary Organisations with the written con-

sents of the administrators endorsed on it. There must be at least three (3) administrators for

which there should be included their name, ID card number and address.

Cannot exceed one year, but can be extended by the Commissioner.

converts the temporary organisation into a new voluntary

organisation of extended duration with the same purposes;

or

applies to the Commissioner for an extension under article

16(4) of the Voluntary Organisations Act.

Termination

Prior to the date of its termination, the temporary organisation

shall submit to the Commissioner a closing statement of account

signed by the administrators

(a)

explaining how it has achieved the purpose for which it

was established;

(b) explaining how it has applied all its assets, including

receipts; and

(c)

attaching any original documents or agreements which

may have been entered into by the temporary organisation

in connection with the disposal or application of such

assets.

Signatures *

".

Part II - Amendments to the Civil Code

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

with the Civil Code or the Second Schedule to the Civil Code, as the the

case may be, hereinafter in this Part referred to as the "Code" or the

"Second Schedule" as the case may be.

38. Article 1124A of the Code shall be amended as follows

Amendment of

article 1124A of

the Code.

(a)

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

(i)

immediately after the word "quasi-contract,"

* This constitutive instrument must also be signed by the promoters, who may be the

administrators as well.

there shall be added the words "unilateral declarations

including wills,";

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

the words "of another person" there shall be added the

words "and it shall be presumed that such an obligation

where a fiduciary acts in or occupies a position of trust is

in favour of another person";

(iii) in paragraph (b) thereof, for the words "holds,

exercises control or powers of disposition over property"

there shall be substituted the words "has registered in his

name, holds, exercises control or powers of disposition

over property";

(b)

sub-article (4) thereof shall be amended as follows

(i) in paragraph (a) thereof, for the words "in the

performance of his obligations" there shall be substituted

the words "in the performance of his fiduciary

obligations";

(ii) in paragraph (b) thereof, immediately after

the words "any conflict of interest" there shall be added the

words "or any conflict of trust or fiduciary obligations";

(iii) in paragraph (c) thereof, immediately after

the words "from his position or functions" there shall be

added the words "nor permit any other person to do so, nor

enter into any transaction related to the property, directly

or indirectly, unless authorised to do so by the instrument

creating the fiduciary obligation or permitted by a person

or authority empowered to approve such dealings under the

instrument or applicable law or as otherwise authorised by

the Court:"; and immediately thereafter there shall be

added the following proviso

"Provided that any references to "the Court"

shall be construed as references to the Civil Court

(Voluntary Jurisdiction Section) unless otherwise

indicated or unless the context refers to any court

seized of any matter in which case it is the court

where the matter arises;";

(iv) in paragraph (e) thereof, immediately after

the words "similar obligations" there shall be added the

words "and to affect a change in the registration of any

relevant property, as may be required for such purpose;";

(v) in paragraph (g) thereof, the word "and" shall

be deleted;

(vi) paragraph (h) thereof shall be substituted by

the following

"(h) to return on demand any property held

under fiduciary obligations to the person lawfully

entitled thereto or as instructed by him as otherwise

required by the written instrument regulating the

fiduciary obligation or by applicable law, and for

such purpose, execute such agreements, including

any public deed, or other instruments and, or effect

a change in the registration of any relevant

property, as may be required;"; and

(vii) immediately after paragraph (h) thereof, there

shall be added the following new paragraphs

"(i) to return any property held under the

fiduciary obligations upon the termination of the

fiduciary obligations to the person lawfully entitled

thereto, as required by the written instrument

regulating the fiduciary obligation or by applicable

law, and for such purpose, execute such

agreements, including any public deed, or other

instruments and, or effect a change in the

registration of any relevant property, as may be

required;

(j)

to keep confidential the affairs of the

person to whom fiduciary duties are owed, subject

to the fiduciary’s duty to provide information to the

beneficiary of the specific fiduciary obligation or

to other persons in accordance with and subject to

any restrictions contained in the written instrument,

if any, giving rise to the fiduciary obligation with

reference to this sub-article, unless the fiduciary is

given consent from the person to whom fiduciary

obligations are owed to disclose such information

Provided that a fiduciary has the right to

declare on any written instrument or when carrying

out any act, that he is acting as a fiduciary in such

context and such declaration shall not be

considered to be a breach of this sub-article; and

(k) to carry out the designated purpose,

where property has been entrusted to him."; and

(c)

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

be added the following new sub-articles

"(7) Subject to the provisions of sub-article (8),

where the competent court, in any proceedings, finds that a

person owns, has registered in his name, holds, exercises

control or has powers of disposition over property and is

bound by fiduciary obligations arising in any manner in

relation to such property, the court may make any order or

declaration in favour of or for the benefit of such persons

and under such terms and conditions as it considers

appropriate in the circumstances to protect the beneficiary

of such obligations under the provisions of this Title and

any special law including

(a) to order the transfer, restitution or

delivery of any property, or the change in the

registration thereof, to another fiduciary or order

that it be held jointly with another fiduciary;

(b) to terminate the powers of disposition of

property;

(c) to order the fiduciary to give adequate

security;

(d) to establish a trust in relation to

property subject to fiduciary obligation and to

establish the terms of such trust;

(e) to rescind any transfer or other

transaction or declaring the same null and void; or

(f)

imposing damages on the fiduciary.

(8) The court shall also have such powers,

whether the proceedings are instituted under article 1124E

or under any other provision of law, by any beneficiary, a

successor in title of such beneficiary, a creditor of such

beneficiary when such creditor may exercise the rights of

the beneficiary under applicable law, or by any other

person whom the court considers to be entitled under the

relevant fiduciary obligation, as the case may be, and on

the basis of the demands in the relevant proceedings.

Where a third party acquires any property under an

onerous title or acquires rights over any property owned,

held or registered in the name of a fiduciary, he shall not be

prejudiced by any remedy granted by the court to any

person as aforesaid

Provided that the third party who acquires any

property pursuant to this sub-article was not aware of that

he was dealing with a fiduciary.

(9) Fiduciary duties may, in particular cases, be

implicitly waived or varied in certain circumstances, such

as

(a) the method of engagement of the

fiduciary, in particular where the fiduciary is

engaged for two or more purposes, functions or

offices or where the fiduciary is engaged for a

purpose, function or office at the same time as

when the fiduciary is granted an entitlement;

(b) the scope, purposes and contexts of the

fiduciary obligations imposed;

(c) the handing over of property, by

delivery, registration in name of another person,

assignment or transfer, to or for the benefit of a

beneficiary’s creditor for purpose of security or

other purpose which is distinct from that of the

beneficiary; or

(d) the manner of the acceptance or

assumption or undertaking of the fiduciary

obligations.

(10) Where there is an express waiver of fiduciary

obligations as stated in sub-article (4) or an implicity

waiver as stated in sub-article (9), the fiduciary may, in

case of doubt, apply for directions from the competent

court on how to act in the circumstances. The court shall

give due regard to the intentions of the person establishing

or imposing the fiduciary obligations and to the interests of

both the fiduciary and the beneficiary.".

39. Article 1124B of the Code shall be amended as follows

Amendment of

article 1124B of

the Code.

(a)

the marginal note thereof shall be substituted by the

following

"Dealings with third parties aware of fiduciary

obligations.";

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

following

"(1) Where a third party is aware that a fiduciary

is vested with ownership, has registered in his name, holds,

exercises control or powers of disposition over property

subject to fiduciary obligations, third parties may, in good

faith, act in relation to the fiduciary as though he were the

absolute owner thereof.";

(c)

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

following

"(2) A third party who acquires property under an

onerous title as provided for in sub-article (1) shall not be

affected by the fiduciary obligations to which the said

property is subject, unless otherwise agreed upon.";

(d) immediately after sub-article (2) thereof, as

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

"(2A) Where a third party acquires property under

gratuitous title as provided for in sub-article (1) from a

fiduciary who acts in breach of the fiduciary obligation or

where the third party has acquired property under

gratuitous title to the detriment of a beneficiary, the third

party shall be subject to the same fiduciary obligations

which the fiduciary was subject to, which shall take effect

when the third party becomes aware or where he

reasonable ought to have become aware from the

circumstances of the breach of the fiduciary obligations

Provided that the fiduciary obligations which

the third party is subject to shall be limited to the extent of

the breach or unauthorised gain, unless the Court provides

otherwise pursuant to any of the remedies in article 1124A

Provided further that the performance of the

fiduciary obligations in accordance with the terms and

conditions that the fiduciary is subject to shall not be

considered to be gratuitous for the purpose of this article.";

(e)

paragraph (a) of sub-article (3) thereof shall

substituted by the following

"(a) enquire into the terms and conditions of his

authority, except in the case of a gratuitous transaction;

or";

(f)

immediately after sub-article (3) thereof there shall

be added the following new sub-article

"(3A) Any third party dealing with a fiduciary in a

transaction shall be entitled to enquire about the purposes

of the fiduciary obligation, including the obligation of not

exceeding the value raised by the transaction, or otherwise

relating to the propriety subject to the transaction or the

applicability of the funds in question."; and

(g) immediately after sub-article (5) thereof there shall

be added the following new sub-articles

"(6) Where a fiduciary is vested with ownership,

has registered in his name, holds, exercises control or

powers of disposition over property informs a third party

with whom he is dealing that he is acting as a fiduciary, the

third party is otherwise aware or should reasonably be

aware, the fiduciary shall not be personally liable for the

obligations entered into with such third party, other than

those entered into in the exercise of his obligations. Where

the third party is unaware of the fiduciary obligations, the

fiduciary shall, subject to any terms which may have been

stipulated or which otherwise apply under the applicable

law, be personally liable to such third party in respect of

any obligation entered into.

(7) The fiduciary shall have a right of recourse

against the beneficiary where contemplated in the

provisions of this Code or in any special law, by way of

indemnity against such liability unless he has acted in

breach of his duties, in which case he shall not be entitled

to be indemnified.

(8) A fiduciary shall be presumed to have all the

powers at law which are required for him to perform his

fiduciary obligations towards beneficiaries or purposes.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 4 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

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 substituted by the

following

"(1) A voluntary organisation is an

organisation which is created or established

(a)

for any social purpose including

that which qualifies as a public purpose or for

public benefit;

(b) as non-profit making; and

(c)

is voluntary,

whether it is registered or registerable as a legal

person or not in terms of the Second Schedule to

the Civil Code and whether it is or may be enrolled

under this Act or not.

For the purposes of this Act the above

requirements shall be of a continuing nature and

shall apply throughout the existence of the

voluntary organisation.";

(b) sub-article (2) thereof shall be re-numbered as

paragraph (a) of the said sub-article, and immediately thereafter

there shall be added the following new paragraphs

"(b) The administrators of a voluntary

organisation are bound to act autonomously and

independently in seeking to fulfil the express

purposes of such organisation and must not be

subject to the control of any other person or

authority nor bound in any manner, directly or

indirectly, to act under the direction or in the

interest of any other person.

(c) Provisions in any statute of a voluntary

organisation or in any applicable law, which

administrators are bound to observe, shall not be

considered as impinging on the autonomy or

independence of administrators

Provided that any such provisions in a statute,

or any powers which have been vested in any

person or body thereby, shall not be such as to

contradict the public purpose of the organisation

Provided further that such statute or applicable

law shall include

(i)

any mission statement, standards

of conduct, guidelines on corporate

governance or similar statements in the

statute, including those relating to ethical,

reputational or commercial positions adopted

by the founder;

(ii) any provisions reserving powers

or rights to the founder of a foundation with a

public purpose or the settlor of a charitable

trust in accordance with the provisions of the

Second Schedule to the Civil Code or the

Trusts and Trustees Act respectively;

(iii) any provisions on a supervisory

council or a protector who may be granted

powers in relation to the actions of the

administrators or trustees in accordance with

applicable law;

(iv) any provisions granting powers to

the Courts or other authority to issue

directions on any matter relating to a

foundation, an association or to a trust or

generally in relation to any voluntary

organisation;

(v) any provisions of applicable law

whereby administrators may be bound to

follow the directions of a designated person

on specific issues or may be under a vow of

obedience or otherwise subject to the laws or

rules of the competent ecclesiastical or other

religious authority; or

(vi) any provisions whereby the

competent ecclesiastical or other religious

authorities may enjoy powers in relation to

the organisation.";

(c)

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

following

" Government-

(3) (a)

An organisation shall not be

al and other

considered to be a voluntary organisation if it is

organisations.

(i) controlled

by

the

Government; or

(ii) a public agency.

(b) For the purposes of this sub-

article

(i) where any person occupies

the position of Prime Minister, Minister,

Parliamentary Secretary, Permanent

Secretary, mayor or holds any other

public office with powers to act on behalf

of the Government and such person also

occupies the position of an administrator

within a voluntary organisation in his

personal capacity, his role in the latter

position shall be considered to be

separate and distinct from the public

office he may occupy within the

Government and such organisation shall

not thereby be considered to be

"controlled by the Government" unless

the statute or any document regulating

the appointment expressly states

otherwise

Provided that when, at any time,

such person holds these two positions at

the same time, such person shall submit a

declaration to the Commissioner

confirming that he is occupying the

position of administrator within the

voluntary organisation in his personal

capacity

Provided further that in such

cases the Commissioner may, if he

considers that the duties or profile of

such person holding the public office to

be incompatible with the duties as

administrator of the particular voluntary

organisation or with the voluntary sector

as a whole, request the retirement by

such person from his position as

administrator

of

the

voluntary

organisation;

(ii) co-operation

agreements,

delegation

of

management,

guardianships or similar agreements as

well as public private partnerships shall

not imply "control by the Government";

(iii) the

appointment

by

Government of persons as protectors or

as members of a supervisory council

shall imply "control by the Government"

unless the statute or any document

regulating their appointment expressly

states that such persons appointed by the

Government are independent and

autonomous, shall act on their own

discretion and responsibility and shall

not be bound to follow directions issued

by the Government in carrying out their

duties notwithstanding the fact that they

are appointed by the Government,

although they remain bound to protect

the public interest even if in consultation

with the Government.

For the purposes of sub-paragraph (i), if,

under the provisions of a statute of an

organisation, the successor incumbent of the

same public office takes up the post of

administrator on the retirement of the prior

incumbent of the public office, this shall be

considered to imply that the relevant person is

not holding the position of an administrator in

his personal capacity. The term "relevant

person" has the same meaning as assigned to it

under the Second Schedule to the Civil Code.

(c)

Religious organisations may not

enrol under this Act and shall not be treated as

voluntary organisations for the purposes of

this Act. Nothing in this article shall hinder a

religious organisation from establishing an

organisation which is not itself a religious

organisation as defined above. Subject to the

provisions of this Act, such an organisation

may enrol and, when so required under this

Act, shall be obliged to enrol.

(d) Such an organisation shall not be

eligible to the rights, privileges and benefits of

a voluntary organisation unless enrolled as a

voluntary organisation under this Act.

(e)

Where a religious organisation is

already enrolled in terms of this Act on the

date of the coming into force of this provision,

such organisation shall continue to be

considered as a voluntary organisation, with

all relative rights, privileges, benefits and

obligations, for as long as its enrolment

remains in effect.

(f)

An organisation shall not be

considered to be a voluntary organisation if it

is a political party, has political purposes or is

controlled by, related or affiliated to a political

party. Such organisations may not enrol under

this Act and shall not be treated as voluntary

organisations for the purposes of this Act.

Nothing in this article shall hinder an

organisation with political purposes from

establishing an organisation which is not itself

a political organisation as defined in this Act.

Subject to the provisions of this Act, such an

organisation may enrol and, when so required

under this Act, shall be obliged to enrol.

(g) Where an organisation with

political purposes is enrolled in terms of this

Act on the date of the coming into force of this

provision, such organisation shall be required

to cancel its enrolment under this Act, failing

which the Commissioner shall proceed to

cancel the enrolment after notice in

accordance with this Act."; and

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

be added the following new sub-articles

"(6) Unless otherwise permitted under the

provisions of article 38, and to the extent of the

applicability of article 32A of the Second Schedule

to the Civil Code, a voluntary organisation may not

be established as the principle cause to trade or to

carry out commercial activities.

(7) For the purposes of the enrolment of a

foreign or international organisation under this Act,

when the organisation takes the form of a foundation

or an association or a trust, the organisation shall be

required to have a minimum of three administrators

Provided that such organisations shall have a

representative resident in Malta.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 5 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 4 of the principal Act shall be amended as follows

Amendment of

article 4 of the

principal Act.

(a)

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

voluntary organisation" there shall be substituted the words

"Without prejudice to the provisions of article 12B, any

voluntary organisation which has a public purpose or is for

public benefit";

(b) in sub-article (2) thereof, immediately after the

words "may make public collections" there shall be added the

words "for the purposes of the organisation, or when the

purpose of an organisation is the raising of funds for other

voluntary organisations with designated social or public

purposes, for the purposes of such other organisations";

(c)

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

following

"(3) Any public collections made by any enrolled

voluntary organisation shall be made for the public

purposes of the relevant organisation and in accordance

with any regulations made by the Minister and, or any

guidelines which may be issued by the Commissioner from

time to time. Unless enrolled, a voluntary organisation may

not make public collections.";

(d)

in sub-article (4) thereof

(a) for the words "An enrolled organisation

may:" there shall be substituted the words "A voluntary

organisation which is not enrolled in accordance with this

Act, may not:";

(b)

in paragraph (d) thereof

(i)

for the words "its social purpose" there

shall be substituted the words "its public purpose";

(ii) for the words "any entity controlled by

the Government:" shall be substituted the words

"any entity controlled by the Government,";

(iii) immediately after paragraph (d)

thereof, there shall be added the following new

sentence

"and any act which breaches this sub-

article shall be considered to be subject to

revocation on the request of the Attorney

General, who may act of his own initiative or

at his discretion on a complaint made by the

Commissioner or on a complaint made by any

enrolled voluntary organisation:";

(iv) the first proviso thereto shall be shall

be substituted by the following

"Provided that

(i) an

enrolled

voluntary

organisation may benefit under

paragraphs (a), (b), (c) and (d) only if it

is fully compliant with the provisions

of this Act and any regulations made

thereunder; and

(ii) if an enrolled voluntary

organisation,

benefiting

under

paragraphs (a), (b), (c) and (d), ceases

to be fully compliant with the

provisions of this Act and any

regulations made thereunder, such

enrolled voluntary organisation shall be

given a time period by the

Commissioner or the relevant authority

granting the benefit, as the case may be,

in which to rectify its position:";

(e)

sub-articles (5) and (6) thereof shall be deleted, and

sub-article (7) thereof shall be re-numbered as sub-article (5);

and

(f)

immediately after sub-article (5) thereof, as re-

numbered, there shall be added the following new sub-articles

"(6) Without prejudice to the other provisions of

this Act, when implementing the provisions of this article

in granting benefits or funds or extending privileges to

enrolled voluntary organisations or in denying benefits or

funds or privileges on the basis of lack of enrolment of an

organisation, the Government shall consult and may rely

on the information contained in the Register of Voluntary

Organisations as maintained by the Commissioner.

(7) (a) The Government shall, from time to

time, at least once a year, declare when funds for grants,

sponsorships or other financial aid from the Government

are available to the voluntary sector.

(b) For the purpose of paragraph (a), the

Government shall distinguish between

(i) funds which are available for

organisations in the voluntary sector with

activities in Malta, whether the organisations

are Maltese organisations or foreign

organisations with activities in Malta; and

(ii) funds which are available to

support

the

overseas

activities

of

organisations, whether such organisations are

Maltese or foreign.

(c) In the case of funds available as stated in

paragraph (b)(i), these shall be available exclusively to

enrolled voluntary organisations whether Maltese or

foreign.

(d) In the case of funds available as stated in

paragraph (b)(ii)

(i) in the case of recipient

organisations which are Maltese, these shall

be available exclusively to enrolled voluntary

organisations; and

(ii) in the case of recipient

organisations which are not Maltese, the

Government shall ensure that as far as

possible, such organisations broadly meet

equivalent public benefit, registration and

transparency standards in their own state of

registration as voluntary organisations which

are enrolled under this Act.

The Minister may, from time to time, issue

regulations establishing the matters upon which

equivalence is required and in what manner and may, from

time to time, declare when registration as a charity, public

benefit, non-profit or voluntary organisation in specified

countries implies equivalence for the purposes of this

paragraph.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 6 Amendment of article 5 of the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 5 of the principal Act shall be amended as follows

(a)

sub-article (3) thereof shall be amended as follows

(i) in paragraph (d) thereof, for the words "an

offence against this Act." there shall be substituted the

words "an offence against this Act; or";

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

shall be added the following new paragraph

"(e) is a public officer or becomes a public

officer."; and

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

"(4) The appointment of a person as a

Commissioner shall not render him a public officer. During

his term as Commissioner, such person shall not hold any

position which results in a conflict of interest or is

incompatible with the appropriate performance of his

official duties as Commissioner or with the impartiality

expected from this office or with the public confidence

therein.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 7 Amendment of article 7 of the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 7 of the principal Act shall be amended as follows

(a)

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

(i) paragraph (k) thereof shall be re-numbered as

paragraph (m);

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

shall be added the following new paragraphs

"(k) reviewing periodically new information

on the voluntary sector’s potential vulnerabilities

to money laundering and the funding of terrorism;

(l) should he discover facts or obtain any

information which raise a suspicion that funds

received by a voluntary organisation could be

proceeds of criminal activity or that the activities

of a voluntary organisation could be related to

money laundering or the funding of terrorism, he

shall promptly disclose those facts or that

information, supported by any relevant and

supporting documentation that may be available to

him, to the Financial Intelligence Analysis Unit;";

(b) sub-article (3) thereof shall be deleted and sub-article

(4) thereof shall be re-numbered as sub-article (5); and

(c)

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

be added the following new sub-articles

"(3) The Office of the Commissioner shall be

deemed to be a body corporate, shall have a distinct legal

personality and shall be capable, subject to the provisions

of this Act or any regulations made thereunder, of entering

into contracts, of acquiring, holding and disposing of any

kind of property for the purposes of his functions, of suing

and being sued, and of doing all such things and entering

into all such transactions as are incidental or contributory

to the exercise or performance of the Commissioner’s

functions under this Act. The Commissioner enjoys the

legal and judicial representation of the Office of the

Commissioner as a legal person.

(4) The Commissioner may, on behalf of the

Office of the Commissioner, in his own writing, delegate

to any person specific functions, powers or authorities

assigned to or conferred on him by this Act or any other

law, and may at any time revoke or vary such delegation

Provided that no such delegation shall be deemed

to divest the Commissioner of any of his functions, powers

or authorities and he may, if he thinks fit, exercise such

functions, powers or authorities collaterally with the

person so delegated.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 8 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Sub-article (2) of article 8 of the principal Act shall be Amendment of

article 8 of the

substituted by the following

principal Act.

"(2)

The Commissioner shall

(a) seek to encourage an environment where the

credibility and good reputation of the voluntary sector is

continually enhanced through high standards of operation

of voluntary organisations and their administrators, of

transparency and public awareness and of proper

accountability; and

(b) seek to assist voluntary organisations in

protecting themselves from being abused for money

laundering or funding of terrorism purposes by raising

their awareness about such risks and informing them of

available measures to protect themselves against such

abuse.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 9 Amendment of article 9 of the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 9 of the principal Act shall be amended as follows

(a)

paragraph (a) thereof shall be substituted by the

following

"(a) the

recognition,

encouragement

and

promotion of the value and importance of voluntary action

and voluntary organisations, whether operating

independently of the Government, religious organisations

or other public institutions or in a supporting role, and the

benefit deriving to the social and cultural life in Malta;";

and

(b) in paragraph (d) thereof, for the words "the interests

of their beneficiaries; and" there shall be substituted the words

"the interests of their beneficiaries:" and immediately thereafter

there shall be added the following new proviso

"Provided that the Commissioner shall not refuse

the enrolment of an organisation solely because of the

potential of duplication of efforts by other organisations

with similar purposes; and".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 10 Amendment of article 10 of the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

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

amended as follows

(a)

in paragraph (a) thereof, immediately after the

words "preceding year" there shall be added the words

"including those related to the monitoring of voluntary

organisations"; and

(b) in paragraph (c) thereof, immediately after the

words "other matters affecting the voluntary sector" there shall

be added the words "to ensure adequate regulation of such

sector including initiatives for the prevention of money

laundering and the funding of terrorism".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 11 Amendment of article 11 of the follows: principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 11 of the principal Act shall be amended as

(a)

in sub-article (2) thereof

(i) immediately after the words "discuss the same

with the Commissioner" there shall be added the words

"and unless an agreement is reached between the

Commissioner and the recipient, the Commissioner may

proceed with publishing the information without any

further requirements"; and

(ii) the proviso thereto shall be substituted by the

following

"Provided that in cases of manifest abuse, fraud

or other risks to the general public, the Commissioner

may publish such information without prior notice as

aforesaid

Provided further that the organisation or the

person purporting to act as stated in sub-article (1),

may at any time appeal to the Tribunal which may

issue orders binding on the Commissioner regarding

such public statements.";

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

following

"(3) Notwithstanding the provisions of any other

law, the Office of the Commissioner, the Commissioner

himself and any of his officials acting on his behalf shall be

exempt from any liability or responsibility whether civil or

criminal, in respect of any publication, statement or other

communication or activity, which is bona fide and is

intended solely for the better information, education or

protection of the public. Such exemption shall extend to

such persons publishing, printing, recording, broadcasting

or notifying such information by any means whatsoever.

For the purposes of this sub-article, a publication,

statement, communication or activity shall be deemed to be

bona fide when it is not made or undertaken recklessly or

maliciously and adheres to the principles of fairness and

objectivity. Any person alleging bad faith shall have the

burden of proving such allegations."; and

(c)

sub-article (4) thereof shall be deleted.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 12 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 12 of the principal Act shall be amended as Amendment of

article 12 of the

principal Act.

(a)

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

(i) for the words "paragraphs (f) to (i)" there

shall be substituted the words "paragraphs (d) to (i)";

(ii) paragraphs (d) to (f) thereof shall be

substituted by the following

"(d) the names, identity card numbers,

accompanied by an authenticated copy of each

identity card, or passport numbers, accompanied by

an authenticated copy of each passport, or

registration numbers, if any, and residential

addresses of the administrators of the organisation;

(e)

in case of foreign organisations, the

name, identity card number, accompanied by an

authenticated copy of such identity card, or

passport number, accompanied by an authenticated

copy of such passport, or registration number, if

any, and residential address of the representative

resident in Malta of such organisation;

(f)

a copy of the constitutive deed of the

organisation and any amendments thereto

authenticated by a Notary Public in the case of a

public deed, and by a Notary Public or one

administrator in other cases, and a statement signed

by the same person as aforesaid, where the dates do

not appear on the face of the documents submitted,

establishing the date when the constitutive deed

was drawn up and the dates when any amendments

were made thereto;"; and

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

be added the following new sub-article

"(4) The administrators and any representatives

resident in Malta shall be bound to submit an authenticated

copy of any renewed identity cards or passports within a

reasonable time from the date of expiry of the document or

within three months of receipt of any demand to that effect

by the Commissioner.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 13 Addition of new articles to the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 12 of the principal Act, there

shall be added the following new articles

12A. (1) Any organisation has a right to

enrol as a voluntary organisation and enjoy the

privileges under article 4 only if

(a)

the social purpose of such

organisation also qualifies as a public purpose

or public benefit as defined by this Act; and

(b) it complies with the rules on form

and content, as may be, from time to time,

prescribed by the Commissioner

Provided that exemption from mandatory

enrolment under article 12B shall not, on its own,

prevent an organisation from enrolment.

(2) Unless exempt under article 12C, the

organisations referred to in article 12B are subject

to mandatory enrolment in terms of this Act.

(3) Any voluntary organisation which -

(a)

is not already enrolled in terms of

this Act;

(b) is not subject to mandatory

enrolment in terms of article 12B;

(c)

is not an exempt voluntary

organisation in terms of article 12C(2); or

(d) being enrolled, ceases to be so

enrolled on its own will when permitted to do

so under this Act,

is required to notify the Commissioner in writing of

its existence and its principal purpose in terms of

article 12D, unless it ceases to be a voluntary

organisation.

(4) Where a voluntary organisation either

fails to enrol and, or fails to notify when required to

do so in terms of this Act, the provisions under

article 12E shall apply mutatis mutandis.

12B. (1) Any voluntary organisation shall

be required to enrol under this Act in the following

cases

(a)

it makes or intends to make public

Mandatory

enrolment on

collections; or

the basis of

actions and

(b) it receives or is the beneficiary of

the protection

of the public

grants, sponsorships or other financial aid

interest.

from the Government or otherwise enjoys the

privileges contemplated by this Act, any

regulations made thereunder or any other law,

or intends to be so eligible; or

(c)

it is the beneficiary of any policies

supporting voluntary action as these may be

developed by the Government or intends to so

benefit; or

(d) it receives or is the beneficiary of

exemptions, privileges or other entitlements

in terms of any law or intends to so benefit;

(e)

it does not carry out activities as

Mandatory

enrolment on

stated under paragraphs (a) to (d) but has an

the basis of

turnover and

income of more than twenty-five thousand

the presumed

euro (€25,000) in any one year or has an

public

benefit.

annual income of more than five thousand

euro (€5,000) for three consecutive years

Provided that this paragraph shall not

apply in the case of an organisation carrying

out purposes and, or activities or having

sources of income other than those related to

the general public or public sources, even if

such organisation has a social purpose, unless

this is determined by the Commissioner in

writing, of his own motion or on the request

of the organisation on the basis of presumed

public benefit

Provided further that the obligation to

maintain enrolment shall cease to apply if the

organisation’s level of income does not meet

any of the relevant thresholds for more than

three consecutive years;

(f)

it does not carry out activities as

Mandatory

enrolment on

stated under paragraphs (a) to (d) but it has

the basis of

capital and

capital assets of a value exceeding five

presumed

hundred

thousand

euro

(€500,000)

public

benefit.

irrespective of its income in any one year

Provided that this paragraph shall not

apply in the case of an organisation carrying

out purposes and, or activities or having

sources of income other than those related to

the general public or public sources, even if

such organisation has a social purpose, unless

this is determined by the Commissioner in

writing, of his own motion or on the request

of the organisation on the basis of presumed

public benefit

Provided further that the obligation to

maintain enrolment shall apply for at least

five years and shall cease to apply if thereafter

the organisation’s level of capital is below a

value of one hundred thousand euro

(€100,000) and remains so for a period of

three consecutive years;

(g) the administrators shall be under

an obligation to enrol the organisation should

it be so required by the statute, whether

original or as amended, or in case of an

association, if it is so resolved in a general

meeting of members or if at least thirty five

per cent of its members so request in writing

provided that the purpose of the organisation

is for a public purpose or benefit.

(2) There shall be a List of Enrolled

Voluntary Organisations which shall be maintained

by the Commissioner in accordance with this Act

and in the manner he may consider appropriate to

enable any member of the public to verify the

existence of an enrolled voluntary organisation, and

to obtain any other information provided by it to the

Commissioner.

(3) The obligation to enrol shall arise

(a)

in the case of an established

organisation, within ninety (90) days of its

establishment but before engaging in any of

the activities or prior to receiving any of the

benefits referred to in sub-article (1);

(b) in the case of an established

organisation, the income of which exceeds

any of the income thresholds stated in sub-

article (1)(e) or the capital of which exceeds

the threshold stated in sub-article (1)(f),

within ninety (90) days from the date on

which any of the financial thresholds referred

to in sub-article (1)(e) or (f) is exceeded, and

in any case, prior to receiving any additional

benefits referred to in sub-article (1); and

(c)

in the cases contemplated in

paragraph (g), within ninety (90) days from

the relevant decision, resolution or similar

event.

(4) It shall be the responsibility of the

administrators and, in the case of sub-article (1)(e)

and (f), also of any accountant, reviewer or auditor,

if any, of a voluntary organisation to ensure

compliance with the provisions of this article.

(5) Any accountant, reviewer or auditor, if

any, engaged to review the levels of income

established in sub-article (1)(e) and, or the capital

in sub-article (1)(f), shall notify the administrators

in writing, with a copy to the Commissioner, if the

duty to enrol arises under this article and the

obligation has not been fulfilled by the

administrators within the established time limits. In

such case, the Commissioner shall notify the

administrators with a time limit for enrolment,

which shall not be less than ninety (90) days, and

the administrators shall be obliged to enrol the

organisation within such time limit as notified by

the Commissioner.

(6) For the purposes of this article

(a)

"income" includes

(i) any subsidies, grants and

donations made to the relevant

organisation but does not include

internal transfers within and between

affiliated

organisations

and

any

reference to a relevant organisation’s

annual income is to be read, in relation

to a particular time, as a reference to the

organisation’s gross consolidated income

in its financial year immediately

preceding that time, having regard to all

affiliated

organisations. "Affiliated

organisations" for the purposes of this

article comprises any organisation

("parent") together with all organisations

set up by the same organisation

("subsidiaries"), other organisations set

up by any of the subsidiaries and, any

organisations established by the same

founders or promoters to achieve the

same or complimentary purposes from

common efforts, funds or opportunities;

(ii) any cash deposit made with

the organisation or any other transfer of

funds under terms which indicate that it

is not an ordinary commercial

arrangement but is intended to operate as

a grant or donation to the organisation;

and

(iii) membership fees;

(b) "financial aid" shall include any

financial aid which is available to the

voluntary sector from the European Union.

(7) In the event that the statute of the

organisation describes it to be for public purposes,

voluntary or non-profit making and the organisation

appears to be carrying out any of the activities in

sub-article (1)(a) to (d); and -

(a)

the statute satisfies many of the

requirements as described in this Act for

qualifying as a voluntary organisation but also

has features or elements in its statute which

exclude it from qualifying as such under this

Act; and

(b) any administrator, or any other

person with the consent, tacit or express, of

any administrator, makes any verbal or

written

public

statement

that

the

organisation’s purposes are exclusively for

public benefit and that it is non-profit making

thereby seeking or encouraging public

support,

the organisation shall comply with the

requirements of this Act and shall enrol within

ninety (90) days of the coming into force of this

article or within fifteen (15) days of a notice from

the Commissioner, unless it withdraws or corrects

any misrepresentation and declares in writing not

to repeat the same, and amends its statute and

other documentation clearly stating that it is not a

voluntary organisation and, where applicable, that

the carrying out of its purposes and, or activities

are not related to the general public or public

sources, and which therefore, do not qualify as a

public purpose or public benefit, even if it has a

social purpose.

Provided that

(a)

should it encounter any obstacles

in complying with the above within the said

period, it shall apply to the Commissioner for

an extension of time to do so; or

(b) if it cannot address any non-

qualifying features or elements for reasons

which can be justified, it may

(i) ask the Commissioner for a

ruling that it is not obliged to enrol until

solutions are found but, if such ruling is

given, the organisation shall be

prohibited from carrying out any of the

activities in sub-article (1)(a) to (d) and,

if it does so, the organisation and the

administrators shall be guilty of an

offence; or

(ii) ask the Commissioner to

permit

enrolment

without

full

compliance with the provisions of this

Act together with a ruling on how the

non-qualifying features or elements are

to be administered.

(8) When the provisions of sub-article (7)

apply and no application is made by an organisation

which is deemed by the Commissioner to be subject

to mandatory enrolment, the Commissioner may

issue an order in writing for the enrolment of such

organisation within the time period stated in the

order. The organisation may, during the period

stated in the order, appeal to the Tribunal which

shall

(a)

confirm the Commissioner’s order

for the mandatory enrolment of the

organisation; or

(b) declare that the organisation is not

a voluntary organisation therefore not

rendering such organisation subject to

mandatory enrolment but also confirming the

prohibitions to carry out acts or enjoy the

privileges referred to in article 4(4).

(9) Nothing in sub-article (1)(e) or (f) shall

prejudice the continuing enrolment of any

organisation enrolled prior to the date of the

coming into force of this article.

(10) An organisation which is subject to

mandatory enrolment in terms of this article for

reasons referred to in sub-article (1)(c) or (d) and

which has been enrolled for at least five (5) years

may apply to the Commissioner to be exempted

from mandatory enrolment if the activities, and, or

purposes of the organisation and the sources of its

income are not related to the general public or

public sources and which therefore, do not qualify

as a public purpose or public benefit, even if it has a

social purpose.

(11) Such organisation shall submit its latest

accounts and reports together with the request for

exemption and if such request is accepted by the

Commissioner, the organisation shall not be entitled

to carry out acts or enjoy the privileges referred to

in article 4(4) until such time as it remains non-

enrolled.

(12) The list of all enrolled voluntary

organisations as may from time to time be amended

shall be made accessible to the public on demand.

12C. (1) Without prejudice to the right to

enrol under article 12A, the following organisations

shall be exempt from mandatory enrolment under

article 12B

(a)

notwithstanding

that

the

requirements giving rise to mandatory

enrolment may exist, the organisations listed

in Part I of the Second Schedule;

(b) the organisations listed in Part II

of the Second Schedule;

(c)

those organisations or classes of

organisations which are temporarily or

permanently exempted by order of the

Commissioner with the prior consent of the

sub-committee of the Council set up in terms

of article 35(13) and on compliance with the

conditions for exemption;

(d) upon the issue of the appropriate

determination by the Commissioner, the

organisations referred to in the exception to

article 12B(1)(e) or (f); and

(e)

any public purpose foundation

which carries out the activities under article

32A of the Second Schedule to the Civil Code

and which does not engage in any of the

activities in article 12B(1)(a) to (d)

Provided that a public offer of shares or

debentures, bonds or notes or other

instruments shall not be considered to be a

public collection and shall be governed by the

law applicable to such offers.

(2) The organisations referred to in sub-

article (1)(a), (b) and (c) shall also be exempt from

the duty to notify the Commissioner under article

12D.

12D. (1) Voluntary organisations which -

(a)

are not subject to mandatory

enrolment;

(b) are not exempt under article

12C(2);

(c)

on the basis of a determination by

the Commissioner, do not qualify for

enrolment as they do not have a social

purpose which also qualifies as a public

purpose or public benefit; or

(d) have opted not to enrol when they

may do so under this Act,

shall notify the Commissioner of their existence

and their principal purpose by means of a "Non-

Enrolment Notice" in the form prescribed in the

Third Schedule.

(2) There shall be a List of Non-Enrolled

Voluntary Organisations which shall be maintained

by the Commissioner in accordance with this Act

and in the manner he may consider appropriate to

enable any member of the public to verify the

existence of a non-enrolled voluntary organisation,

and to obtain any other information provided by it

to the Commissioner.

(3) The notification mentioned in sub-article

(1) shall not grant the Commissioner any rights nor

impose any obligations upon him in relation to such

organisations nor shall it grant the organisations

making such notification any rights nor impose any

obligations on them, other than as provided in this

Act.

(4) The administrators of a non-enrolled

voluntary organisation shall, by means of the

relevant form in the Third Schedule, notify the

Commissioner of

(a)

any changes to the name or

address of the organisation;

(b) any changes to the administrator

or local representative, where applicable, who

is to be contacted on behalf of the

organisation; and

(c)

the merger or dissolution and

winding up of the organisation,

and the Commissioner shall amend or remove the

form or forms relating to such organisation in the

records relating to Non-Enrolled Voluntary

Organisations as the case may be and shall amend

the List of Non-Enrolled Voluntary Organisations

as necessary.

(5) The List of Non-Enrolled Voluntary

Organisations, as may from time to time be

amended, shall be accessible to the public on

demand.

12E. (1) An organisation which, when

obliged to do so under this Act, fails to enrol shall,

notwithstanding the provisions of any other law, be

disqualified from benefiting under any grant,

sponsorship, any other financial aid from the

Government or any governmental policy supporting

voluntary organisations or from receiving or being

the beneficiary of any exemptions, privileges or

other entitlements supporting organisations under

any law, and any act performed by such

organisation which is in breach of this sub-article

shall be subject to revocation on the request of the

Attorney General who may act of his own initiative

or at his discretion, on a complaint made by the

Commissioner or on a complaint made by an

enrolled voluntary organisation.

(2) Administrators who fail to enrol an

organisation when such enrolment is mandatory in

terms of article 12B or who fail to notify the

Commissioner of the existence of the organisation

in terms of article 12D shall, upon the lapse of

thirty (30) days after being notified in writing by

the Commissioner of the default and its

consequences, or on the lapse of the time limit

stated under article 12G(2), be guilty of an offence

and shall be liable, on conviction, to a fine (multa)

of not less than one hundred and twenty euro

(€120) for every default, and a fine (multa) of

eleven euro and sixty-five cents (€11.65) for every

day such default continues.

12F. (1) A foreign organisation which

operates in Malta in any manner and which is

established -

(a)

for a public purpose or public

benefit;

(b) as non-profit making; and

(c)

is voluntary,

shall apply for enrolment by submitting the

relevant form in the Third Schedule to the

Commissioner.

(2) The Commissioner may issue guidelines

regarding the enrolment of foreign organisations in

terms of this Act.

12G. (1) Should a voluntary organisation

consider that circumstances exist which create

doubt as to whether it is subject to mandatory

enrolment or notification under this Act and it is of

the view that it is not required to enrol or to notify

for any reason, it shall be entitled to formally

advise the Commissioner of its position and state

the relevant reasons and, until such time as the

Commissioner does not order otherwise, the

organisation shall not be considered to be in breach

of article 12B or article 12D.

(2) Once the Commissioner rules that an

organisation is required to enrol or to notify in

accordance with the preceding articles, the

Commissioner shall order, in writing, such

organisation to do so and set a time limit for such

action.

(3) The organisation may appeal against

such order in accordance with article 25.

(4) Until the Commissioner determines any

matter under sub-article (1) or until the Tribunal

determines any appeal, such organisation shall not

be considered to be in breach of article 12B or

article 12D but may not carry out the acts in article

12B(1)(a) to (d) pending final determination.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 14 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 13 of the principal Act shall be amended as Amendment of

(a)

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

"(1) All applications for enrolment shall be made

by the submission of the prescribed application form to the

Commissioner, which form shall be accompanied by

(a)

an original or a copy of the constitutive

deed or statute of the organisation and any

amendments thereto authenticated by a Notary

Public in the case of a public deed and by a Notary

Public or one administrator in other cases, and a

statement signed by the same person authenticating

the deed or statute and any amendments thereto as

aforesaid. Where the dates do not appear on the

face of the documents submitted, establishing the

date or the approximate date, where this is not

available from other records, a document showing

the date when the constitutive deed or statute was

drawn up and the dates when any amendments

were made thereto;

(b) an explanation of how the public

benefit shall be achieved through the activities and

purposes of the organisation;

(c)

the written consent

of all the

administrators that shall hold

office after

enrolment;

(d)

the enrolment fees; and

(e)

any other document as required by this

Act or by any regulations made thereunder or as

may be required by the Commissioner.";

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

considering an application, the Commissioner may request the

applicant to provide" there shall be substituted the words "In

considering an application and at any time thereafter, the

Commissioner may request the voluntary organisation to

provide";

(c)

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

words "an express provision of this Act" there shall be

substituted the words "a provision of this Act including any of

the qualifying elements as stated in article 3";

(d) in paragraph (c) of sub-article (4) thereof, for the

words "for such determination." there shall be substituted the

words "for such determination and when the reasons relate to

the absence or insufficiency of the public benefit element of the

purposes of an organisation, to provide a reasoned analysis of

his considerations in which case the organisation shall be

granted a reasonable opportunity to make representations to the

Commissioner on such matter prior to the final decision being

taken by the Commissioner.";

(e)

sub-article (5) thereof shall be substituted by the

following

"(5) The Commissioner shall seek to determine all

applications by not later than three (3) months from the

date of the application and failure to so determine and

notify the applicant in accordance with sub-article (4)

within such time shall be deemed to mean that enrolment

has been accepted and the Commissioner shall process the

enrolment without any further delay

Provided that in the event that the applicant is a

foundation which has not yet been registered with the

Registrar of Legal Persons as required by law the duty of

the Commissioner under this sub-article to proceed with

enrolment shall be suspended until the date when the

foundation is so registered

Provided further in the case of an enrolment taking

place in default of a determination as above stated, the

Commissioner may request in writing the enrolled

voluntary organisation to comply with legal requirements

under this Act which may be applicable and which have

not been complied with. The enrolled voluntary

organisation shall be bound to fulfil such conditions within

six (6) months so as to retain its enrolment

Provided also that if the requirements are not

fulfilled within the aforementioned time period, the

Commissioner shall order the cancellation of the enrolment

of the voluntary organisation by the issue of a Cancellation

Order after giving the organisation thirty (30) days notice

in writing

Provided further that if, however, the

Commissioner determines, after enrolment under this

article, that the element of a public purpose or public

benefit in terms of these provisions is absent in the relevant

organisation, he may by notice in writing, order the

suspension or the cancellation of the enrolment of the

voluntary organisation by the issue of a Suspension Order

or a Cancellation Order, as appears appropriate in the

circumstances, solely on such basis.";

(f) in sub-article (6) thereof, immediately after the words

"administrator of an organisation" there shall be added the words "or

a trustee of a trust"; and

(g) sub-article (7) thereof shall be deleted.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 15 Amendment of article 14 of the follows: principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 14 of the principal Act shall be amended as

(a)

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

following

"(2) Certificates of Enrolment shall be considered

to be public instruments and shall be surrendered to the

Commissioner on his demand in writing. The

Commissioner shall be bound to provide written reasons

for any withdrawal of a Certificate of Enrolment when

making such written demand."; and

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

be added the following new sub-article

"(4) When a Certificate of Enrolment is

surrendered, cancelled or otherwise withdrawn it shall not

be lawful for any person to use the organisation’s

identification number, unless otherwise determined by the

Commissioner for legitimate purposes or if he deems it

necessary in the circumstances.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 16 Amendment of article 16 of the follows: principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 16 of the principal Act shall be amended as

(a)

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

following

"(1) A voluntary organisation may be established

as a temporary organisation, by using the form in the

Fourth Schedule, if it is an organisation formed with one

specific purpose, including the raising of funds for a

specific public purpose or to support another enrolled

voluntary organisation or, subject to article 16A, funds are

being raised to help a specific individual or individuals

who may suffer from needs which would qualify as a

social purpose.";

(b)

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

(i) in paragraph (a) thereof, immediately after

the words "written constitutive instrument," there shall be

added the words "by using the form in the Fourth

Schedule,";

(ii) in paragraph (b) thereof, immediately after

the words "except those listed in the constitutive

instrument" there shall be added the words "and ancillary

and connected acts";

(c)

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

following

"(4) The Commissioner may, on the written

request of the administrators, consent to an extension of

the expiration date of a temporary organisation.";

(d)

sub-article (5) thereof shall be amended as follows

(i) the words "by no later than the expiry date"

shall be deleted;

(ii) in paragraph (b) thereof, immediately after

the words "pay all monies and other assets raised to" there

shall be added the words "the intended purposes or";

(e)

sub-articles (6) and (7) thereof shall be deleted;

(f)

sub-article (8) thereof shall be re-numbered as sub-

article (6) and shall be amended as follows

(i) for the words "has been set up regularly"

there shall be substituted the words "has been set up

repeatedly"; and

(ii) for the words "refuse to accept the enrolment"

there shall be substituted the words "refuse to accept the

repeated enrolment".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 17 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 16 of the principal Act there shall Addition of new

articles to the

be added the following new articles

principal Act.

16A. (1) Notwithstanding the provisions of

this Act or the Public Collections Act, it shall not

be lawful for any person to make a public collection

or call for financial support or otherwise to raise

any funds from the public for the benefit of a

specific individual, being himself or someone else,

who may suffer from a particular social, physical or

other need or disability which qualifies as a social

purpose except through the establishment and

enrolment of a temporary organisation for such

purpose and under the conditions set out in this

article.

(2) When such an organisation is

established, such organisation shall be considered

to be for a public purpose notwithstanding that it

may have just one beneficiary on condition that

(a)

any funds raised shall only be

used for such individual’s needs as declared in

the appeal or literature promoting the

collection; and

(b) any excess funds not used for such

individual’s benefit shall be disposed of in

favour of another enrolled voluntary

organisation with similar purposes unless the

temporary organisation is itself converted into

a voluntary organisation of extended duration

to achieve the relevant social purpose in

general for public benefit and not limited to

one specific beneficiary.

16B. (1) Voluntary Organisations shall

have at least three administrators

Provided that its beneficiaries or, in the case of

minors, the person exercising parental authority or

the minors being its beneficiaries cannot act as

administrators.

(2) The administrators of the voluntary

organisation shall be bound by the provisions of

this Act and the Second Schedule to the Civil Code.

(3) Notwithstanding the provisions of the

Civil Code governing minors, guardianship and

tutorship, minors who have attained the age of

sixteen (16) years shall be eligible to administer an

organisation and shall be vested with any rights

pertaining to it and, or resulting therefrom.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 18 Amendment of article 18 of the principal Act. issuing". — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

In sub-article (4) of article 18 of the principal Act, for the

words "prior to seeking" there shall be substituted the words "prior to

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 19 Amendment of article 19 of the follows: principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 19 of the principal Act shall be amended as

(a)

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

following

"(1) The Commissioner may order

(a) the suspension of the activities of an

enrolled voluntary organisation by the issue of a

Suspension Order, for such period as shall be

specified in such Suspension Order which period

shall not exceed thirty (30) days in any single

Suspension Order; or

(b) the cancellation of the enrolment of a

voluntary organisation by the issue of a

Cancellation Order, which shall come into effect

thirty (30) days from the date on which the sole

administrator or at least one of the administrators

was notified of such order, unless an appeal is filed

within the appeal period provided for in article

25(1), in which case such order shall only have

effect if so determined and from the date

established by the Tribunal

Provided that nothing in this article shall

hinder the operation of a Suspension Order

pending the decision of the Tribunal.";

(b)

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

(i) in paragraph (a) thereof for the words "for

which it was established" there shall be substituted the

words "stated in the statute";

(ii) paragraphs (d) to (g) thereof shall be re-

numbered as paragraphs (e) to (h) respectively;

(iii) paragraphs (b), (c) and (d) thereof shall be

substituted by the following

"(b) is making public

collections

for

purposes outside its objects;

(c)

carries out unlawful activities or is

repeatedly acting in contravention of the provisions

of any law which are mandatory;

(d) is failing to comply with the provisions

of its statute or of this Act or any regulations made

thereunder or the administration thereof is being

carried out to poor standards of corporate

governance and continues to be so carried out for a

period in excess of three months notwithstanding a

written warning by the Commissioner;";

(iv) immediately after paragraph (h) thereof, as

re-numbered, there shall be added the following new

paragraph

"(i) does not have a public purpose or its

public purpose does not meet the sufficient

requirements, whether this is determined by the

Commissioner after the enrolment of the

organisation in accordance with article 13(5) or

otherwise; and in such a case the provisions of

article 13(4) relating to the provision of reasons for

such a decision and the opportunity to make

representations shall apply mutatis mutandis.";

(v) immediately after paragraph (i) thereof there

shall be added the following new provisos to the said sub-

article (2)

"Provided that the Commissioner may not

instruct the administrators on how to fulfil the

purposes of the organisation

Provided further that where the purpose of the

organisation is the advancement of religion, the

Commissioner shall rely on a statement issued by

the relevant religious authority regarding whether

the purposes of the organisation are being

fulfilled.";

(c)

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

"(3) In those cases where a Suspension Order is

issued, the Commissioner shall indicate which of the

activities of the organisation are to be suspended and shall

meet or communicate with the administrators of the

organisation, as soon as possible, to review the situation

and to obtain information and undertakings from the

administrators as necessary. The Commissioner may use

such information when reviewing any orders issued by

virtue of this article.";

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

Tribunal" there shall be substituted the words "the

Commissioner"; and

(e)

sub-articles (5), (6), (7), (8) and (9) thereof shall be

substituted by the following

"(5) The Commissioner shall have the power to

extend, amend or revoke a Suspension Order, as he

considers appropriate, on the application of the

administrators of the voluntary organisation, or of his own

motion.

(6) Until a Cancellation Order comes into effect

in accordance with sub-article (1)(b), the affairs of the

voluntary organisation shall continue to be administered by

the administrators who shall only carry out acts of ordinary

administration or, in the case where an appeal is pending,

such acts as may be authorised by the Commissioner or the

Tribunal.

(7) The Commissioner may determine whether

any suspension of the activities of an organisation is to

become permanent in relation to all or part of the activities

of the organisation and may issue any relevant orders in

relation to the future operations of the organisation.

(8) In the case of a Cancellation Order based on

the grounds specified in sub-article (2)(a) to (e), the

Commissioner shall have the power to order the

organisation to desist from carrying out any further

activities. In all other cases the Cancellation Order shall

include all determinations under such terms and conditions

as the Commissioner may consider appropriate in the

circumstances

Provided that such order shall not imply a

restriction of the right of association of any persons

involved in the organisation or of the right to continue to

operate the organisation without the continuing benefits of

enrolment under this Act.

(9) The Commissioner shall publish, in one local

newspaper or by means of a notice in the official website

of the Office of the Commissioner for Voluntary

Organisations as the Commissioner may consider

appropriate in the circumstances of the case, any

Cancellation Orders which have become final with a brief

statement as to the effects of the order and such statement

shall be re-published regularly for as long as the

Commissioner may consider necessary to ensure that the

necessary public awareness has been achieved.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 20 Amendment of article 20 of the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Sub-articles (3) and (4) of article 20 of the principal Act

shall be substituted by the following

"(3) Cancellation for the reasons mentioned in article

19(2)(b), (e) and (h) shall entitle the Commissioner to demand

in writing the refund of, or fair compensation for, any benefits

unjustly received by the voluntary organisation or any other

person by virtue of its enrolment in terms of this Act, and that

demand, when done by judicial letter, shall constitute an

executive title against the organisation or any named

administrator in favour of the Commissioner, in his own name

or as trustee for the person entitled to the refund or fair

compensation as aforesaid. Any person aggrieved by such order

may appeal to the Tribunal within thirty (30) days of receipt

thereof

Provided that there shall lie a right of appeal by the person

aggrieved to the Court of Appeal from any confirmation of

liability by the Tribunal in terms of this sub-article.

(4) An order of the Commissioner against an

organisation or any named administrator shall be enforceable as

an executive title once all appeals have been exhausted or no

appeals have been filed within the relevant time limits.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 21 Amendment of article 21 of the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 21 of the principal Act shall be amended as

follows

(a)

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

following

"(1) The Commissioner may, by the issue of a

Suspension Order, order the suspension of activities of a

voluntary organisation which is not enrolled if, in his

reasonable opinion, any of the grounds mentioned in

article 19(2)(b), (c), (d) and (e) apply and this for a period

to be specified in the Suspension Order. Such Order shall

be notified to all or any one of the administrators, or in

their absence to such person who appears to the

Commissioner to be carrying out such activities

Provided that for the purposes of article 19(2)(b)

the relevant activity shall be the making of a public

collection without the necessary authorisations or, if

authorised, when such collection goes beyond the terms of

the authorisation

Provided further that such suspension shall not

exceed thirty (30) days in any one Suspension Order and

shall not be renewed more than two consecutive times.";

(b)

in sub-article (2) thereof

(i) for the words "served with such notice" there

shall be substituted the words "served with such

Suspension Order"; and

(ii) for the words "indicated in the notice" there

shall be substituted the words "indicated in the Suspension

Order";

(c)

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

there shall be substituted the words "the Suspension Order";

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

following

"(4) The Commissioner may issue a Permanent

Suspension Order for the permanent suspension of

designated activities by such organisation, should he

consider it necessary, under such conditions as he

considers appropriate."; and

(e)

in sub-article (5) thereof, immediately after the

words "by a Suspension Order" there shall be added the words

"or a Permanent Suspension Order".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 22 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 22 of the principal Act shall be amended as Amendment of

article 22 of the

principal Act.

(a)

paragraph (c) of sub-article (1) thereof shall be

substituted by the following

"(c) (i) take action to seize any funds raised or

public collections made by such person or organisation and

to return such funds to the donor thereof, or if it is not

possible to locate donors within six (6) months from such

seizure, pay such funds into the Voluntary Organisations

Fund;

(ii) if considered necessary by the

Commissioner due to lack of co-operation by persons

involved or in the circumstances, he may request the First

Hall, Civil Court to issue an order attaching such funds in

the hands of third parties in general and to prohibit any

person or organisation from transferring or from otherwise

disposing of such funds;

(iii) such order shall become operative and

binding on all third parties immediately as soon as it is

made, and the Commissioner shall cause a notice thereof to

be published without delay in the Gazette and two (2) daily

newspapers;

(iv) the

Court

may

for

particular

circumstances vary such order, and the provisions of the

foregoing paragraphs shall apply to such order as so

varied;

(v) every such order shall contain the name

of the person, and the number of his identity card or

passport or identification number and, if known, his

profession, trade or other status, father’s name, mother’s

name and maiden surname, place of birth and place of

residence or in the case of an organisation, its name and

registration number or other identification number, if any;

(vi) the order shall cease to be in force when

the related civil or criminal proceedings are finally

determined by the Court or when the Commissioner

informs the Court that such order is no longer required and

in such event the Commissioner shall cause a notice to that

effect to be published without delay in the Gazette and two

(2) daily newspapers.";

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

following

"(2) Prior to the taking of any of the actions

referred to in sub-article (1)(a), (b) and (c)(i), the

Commissioner shall notify in writing any person or

organisation who appears to him prima facie to have

breached the provisions of sub-article (1), of his findings

and of the actions he intends to take and such person or

organisation shall be entitled to

(a) make submissions to the Commissioner

within five days from the date of receipt of the

written notice; and

(b) file an appeal to the Tribunal within five

(5) days of notification of the decision of the

Commissioner, which appeal shall suspend any

action taken by the Commissioner in terms of sub-

article (1) until final determination by such

Tribunal

Provided that until submissions are made to the

Commissioner and pending the Tribunal’s decision, the

recipient of such notice shall not transfer or dispose of

such funds as he may control and, in case of default, the

recipient shall be guilty of an offence.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 23 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 22 of the principal Act, there Addition of new

articles to the

shall be added the following new articles

principal Act.

22A. (1) The

Financial

Intelligence

"Financial

Intelligence

Analysis Unit, in fulfilling the responsibilities

Analysis Unit

may demand

assigned to it under the Prevention of Money

access to

Laundering Act and any regulations made

register,

information,

thereunder, may demand access to the Register or

to any information or documentation relating to

the operation of an enrolled voluntary organisation

and to the List of Non-Enrolled Voluntary

Organisations.

(2) Upon receipt of any demand for access

to the Register or the List as aforesaid or to any

information or documentation in terms of sub-

article (1), the Commissioner shall, as soon as is

reasonably practicable but not later than five (5)

working days from when the demand is first made

and without levying any payment as provided by

article 40, give the Financial Intelligence Analysis

Unit such access or information or documentation,

as the case may be.

22B. (1) It shall be the duty of all the

Duties of

administrators

administrators of a voluntary organisation to

in relation to

anti-money

implement appropriate procedures relating to the

laundering and

prevention of money laundering and the funding of

the funding of

terrorism.

terrorism so as to ensure that their organisation is

not used for such purposes. Such duties shall

include but shall not be limited to

(a)

confirming

the

identity,

credentials and good-standing of the persons

or organisations which the voluntary

organisations support and obtaining evidence

of the identity of the persons who control

such organisations;

(b) confirming

the

identity,

credentials and good-standing of other

voluntary organisations, in Malta or

overseas, as well as other persons with whom

the administrators associate in carrying out

activities to fulfil the purposes of their

organisation;

(c)

identifying significant donors of

the voluntary organisation, being individuals

or other organisations, and, while respecting

donor confidentiality, obtaining evidence of

identity of the relevant individuals or the

persons

who

control

such

other

organisations;

(d) obtaining information on the

source of funds which are donated to the

organisation;

(e)

verifying that the assets of the

organisation are used lawfully and in a

manner which is consistent with its purposes

and objects.

(2) For the purpose of this article

(a)

the administrators shall carry out

their duties on a best efforts basis;

(b) the administrators shall pay

regard to the context and the potential risk to

money laundering or the funding of

terrorism; and

(c)

"significant" shall mean any

donations of fifteen thousand euro (€15,000)

or more, whether carried out in a single

operation or in several operations which

appear to be linked.

(3) In the case of voluntary organisations,

the administrators of which are not ordinarily

resident in Malta, the duties mentioned in the

previous sub-article shall be carried out by the

local representative of the organisation.

(4) The administrators or the local

representative of the voluntary organisation, as the

case may be, shall

(a)

keep adequate records regarding

the receipt and use of all funds by the

voluntary organisation, which records shall

be sufficiently detailed to verify that the

funds have originated from lawful activity

and have been used lawfully and in a manner

consistent with the purpose and objects of the

organisation;

(b) ensure that the voluntary

organisation has adequate financial controls

and financial management which are

essential to protect it against money

laundering and the funding of terrorism;

(c)

ensure that there are appropriate

internal procedures in place within the

voluntary organisation to encourage staff and

volunteers to report any vulnerability of the

organisation to the risk of money laundering

and the funding of terrorism to the

administrators or the local representative so

that remedial action may be taken by the

organisation; and

(d) provide adequate training to staff

and volunteers to ensure they are familiar

with the voluntary organisation’s reporting

procedures and financial controls and know

what actions to take if they suspect money

laundering and the funding of terrorism.

22C. (1) Should

the

Commissioner

Powers of the

Commissioner

discover facts or obtain any information which

in relation to

anti-money

raises a suspicion that funds received by a

laundering and

voluntary organisation could be proceeds of

funding of

terrorism.

criminal activity or that the activities of a

voluntary organisation could be related to money

laundering or the funding of terrorism, he shall

promptly disclose those facts or that information,

supported by any relevant documentation that may

be available to him, to the Financial Intelligence

Analysis Unit.

(2) The Commissioner may furthermore

order the voluntary organisation to appoint, within

a stated time period and at its own cost, an

advocate, a notary public, an auditor or an

authorised company service provider, being

independent from such voluntary organisation, to

review the records and activities of the voluntary

organisation for a stated period and to report to the

Commissioner on the compliance or otherwise to

the provisions of this Act relating to the prevention

of money laundering and the funding of terrorism.

22D. Any terms relating to the prevention of

Definitions.

money laundering and the funding of terrorism and

related terms shall have the meaning ascribed to

them in the Prevention of Money Laundering Act

or regulations made thereunder.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 24 Amendment of article 25 of the follows: principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 25 of the principal Act shall be amended as

(a)

in the marginal note thereof, immediately after the

words "Right of appeal" there shall be added the words "from a

decision of the Commissioner.";

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

following

"(1) Any person or organisation aggrieved by any

decision of the Commissioner may appeal from the

decision within thirty (30) days of receipt thereof.";

(c)

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

following

"(2) Appeals shall be made in writing and

shall be lodged with the Tribunal in accordance

with the provisions of the Administrative Justice

Act or shall be made in the manner as may be

prescribed by regulations made by the Minister by

virtue of this Act.";

(d) sub-articles (3), (4) and (5) thereof shall be re-

numbered as sub-articles (4), (5) and (6) respectively;

(e)

immediately after sub-article (2) thereof there shall

be added the following new sub-article

"(3) All appeals shall be made by application to

the Tribunal, which application shall be served on the

Commissioner by the applicant."; and

(f)

in sub-article (4) thereof, as re-numbered, the words

"the Commissioner," shall be deleted.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 25 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

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

article 32 of the

following

principal Act.

" Offences.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 32 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Any person who -

(a)

in any manner, forges or alters a

Certificate of Enrolment of a voluntary

organisation;

(b) acts or purports to act on behalf

of an enrolled voluntary organisation when

he is not authorised to do so and raises funds

or acquires assets or achieves any personal

benefit from so doing;

(c)

gives the impression that an

existing organisation is a public benefit

organisation, non-profit making or voluntary

organisation when it is not;

(d) makes abusive use of a

Certificate of Enrolment or of a voluntary

organisation’s identification number;

(e)

gives the impression that an

organisation has a voluntary organisation

identification number when it has none or

uses a non-existent identification number;

(f)

acts or purports to act in the name

of a public benefit, non-profit making or

voluntary organisation which does not exist,

shall be guilty of an offence and shall be liable to

the same punishment as provided for in article 183

of the Criminal Code.".

26. Article 33 of the principal Act shall be amended as Amendment of

article 33 of the

follows

principal Act.

(a)

in sub-article (1) thereof, immediately after the

words "an administrator of such organisation" there shall be

added the words "but who does not acquire any assets or

achieve any personal benefit from doing so"; and

(b)

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

following

"(2) Any person who makes or attempts to

make a public collection when not enrolled as a

voluntary organisation under this Act shall be

guilty of an offence unless such person has

obtained a licence or is exempt from the

requirement of obtaining a licence in terms of the

Public Collections Act.".

27. Article 34 of the principal Act shall be amended as

(a)

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

following

"(1) The Commissioner may, in the cases referred

to in article 19(2), investigate the affairs of any voluntary

organisation at any time and may demand from any person,

in writing, any relevant information relating to the

operation of a voluntary organisation or related to any

person involved in the activities of a voluntary

organisation, if he receives what he considers to be a valid

complaint in writing or if he has cause to believe that such

information is necessary in order to establish whether a

voluntary organisation is acting in compliance with the

provisions of this Act or any regulations made thereunder

Provided that where the complaint arises from a

member of the public who seeks information required to be

filed with the Commissioner under this Act which is for

any reason absent from the Register, the complaint need

not be in writing and the Commissioner shall be entitled to

presume that the complaint is valid on establishing that the

information is absent from the Register and he may then

proceed to take action against the organisation and, or its

administrators without the need for a formal investigation

under this article.";

(b) in sub-article (4) thereof, immediately after the

words "The Commissioner may set a period for compliance

with" there shall be added the words "any directives he may

give or for compliance with"; and

(c)

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

be added the following new sub-articles

"(6) A demand under this article may also be

sent to a person who is bound by a duty of

professional secrecy under the Professional

Secrecy Act and for the purposes of article 6A of

such Act the Commissioner shall be considered to

be a public authority. Any information obtained by

the Commissioner upon such a demand shall be

used exclusively for the purposes of this article.

(7) Notwithstanding the provisions of sub-

article (1), the Commissioner has the right to

request any other information required in terms of

the provisions of this Act including personal

information and any other data of identification of

a person, provided that such data is not divulged to

third parties without the written consent of the

persons involved and provided this information is

in conformity with the provisions of the Data

Protection Act.

(8) For the purpose of sub-article (7) any

personal information may include but shall not be

limited to

(a)

names

of

donors

and

beneficiaries;

(b) names of sponsors;

(c)

details of any other person or

entity with whom the organisation would

have made any kind of transaction including

financial transactions;

(d) personal details of employees

including payslips;

(e)

beneficiaries

of

companies

(including shareholders)

Provided that the requirements mentioned in

paragraphs (a), (b) and (c) are necessary for the

purpose of maximum transparency and

accountability and may enable the Commissioner

in identifying any irregularities or suspicions from

annual returns and reports and eventually take any

necessary action

Provided further that the requirements under

paragraphs (d) and (e) shall only be requested by

the Commissioner in exceptional cases and shall

not be made accessible to the public.

(9) For the purpose of this article, the

Commissioner shall also be vested with the power

to request the banks or any financial authority or

entity for any other information required in terms

of the provisions of this Act and he shall have the

right to obtain such information as may be

required without the need of having to file an

action before the Tribunal or the Civil Court.".

28. Article 35 of the principal Act shall be substituted by the

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 35 " The Malta — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

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

Council for the

the Malta Council for the Voluntary Sector, which

shall have a distinct legal personality. The role of

the Council shall be to promote the voluntary

sector, provide a forum for the voluntary sector and

a platform from which to develop co-operation

between voluntary organisations and the

Government and co-operation between voluntary

organisations amongst themselves. The Malta

Council for the Voluntary Sector shall also assist

and advise the Commissioner for the Voluntary

Sector.

(2) The Council shall be composed of a

Chairperson and another ten members, who shall be

appointed as follows

(a) one (1) member shall be appointed

by the Minister to represent the Government;

(b) four (4) members shall be

appointed by the Minister in accordance with

sub-article (3) from among the voluntary

sector in order to represent voluntary

organisations; and

(c) six (6) members shall be elected

directly by the voluntary sector.

(3) The four (4) members of the Council who

are appointed by the Minister to represent voluntary

organisations shall be appointed after the receipt of

nominations following a public call by the Minister

for nominations in the following manner

(a) one (1) member to represent

founders of and donors to voluntary

organisations;

(b) one (1) member to represent

members of voluntary organisations and

volunteers;

(c) one (1) member to represent

administrators of voluntary organisations; and

(d) one (1) member to represent

foreign and international organisations

Provided that where there is more than

one nomination representing a particular

sector, the Minister shall appoint such

members from among the nominations

received

Provided further that where no

nominations are received, the Minister shall

appoint such members at his discretion

Provided further that prior to appointing

the members of the Council, the Minister

shall consult with the Social Affairs

Committee of the House of Representatives or

any other committee substituting the same

immediately upon receiving the nominations.

(4) (a) The six (6) members of the Council

who are elected directly by the voluntary

organisations enrolled with the Commissioner for

Voluntary Organisations shall be representative of

the following sectoral groups

(i)

one (1) member from the

Social and Humanitarian Sector;

(ii) one (1) member from the

Health and Special Needs Sector;

(iii) one (1) member from the

Education, Youth and Sport Sector;

(iv) one (1) member from the

Environmental Sector and the Animal

Welfare Sector;

(v) one (1) member from the

Arts and Culture Sector; and

(vi) one (1) member from the

Non-Governmental

Organisations

Sector in Gozo.

(b) All members of the Council shall

be remunerated for their services in relation

with their duties and functions carried out in

terms of article 36(2) and (3)

Provided that such remuneration shall

be established at eight hundred euro (€800)

per annum.

(5) The Chairperson of the Council and the

Deputy Chairperson shall be appointed by the

Council from among the members of the Council.

The Council shall be assisted by a Secretary.

(6) Where the Chairperson is absent from

Malta or is otherwise temporarily unable to perform

the functions of his office, the Deputy Chairperson

shall act as Chairperson and shall exercise all the

powers and functions of the Chairperson.

(7) A person shall not be qualified to be

appointed or to hold office as a member of the

Council if he

(a) is a Judge, a Magistrate, a

Member of the House of Representatives or a

Local Council, or a candidate for election to

the House of Representatives or a Local

Council; or

(b) is legally incapacitated or

interdicted; or

(c) has been declared bankrupt or has

made a composition or arrangement with his

creditors; or

(d) has been convicted of a crime

affecting public trust or theft or fraud or of

knowingly receiving property obtained by

theft or fraud; or

(e) is subject to disqualification under

article 320 of the Companies Act or is

involved or has interest in any enterprise or

activity which is likely to affect the proper

discharge of his function as a member of the

Council.

(8) Subject to the provisions of this article, the

office of a member of the Council shall become

vacant

(a) at the expiration of his term of

office;

(b) if a member of the Council is

absent for more than half of the meetings of

the same Council in a calendar year or three

consecutive meetings without an excuse; or

(c) if any circumstances arise that, if

he were not a member of the Council, would

cause him to be disqualified for appointment

as such.

(9) A member of the Council may be relieved

from office by the Minister on the ground of

inability to perform the functions of his office,

whether due to infirmity of mind or body, or to any

other cause, or on the ground of misbehaviour.

(10) A member of the Council may resign from

his office by means of a letter to the Minister. If a

member resigns or is relieved from office by the

Minister or if the office of a member of the Council

is otherwise vacant, the vacancy shall be filled

reflecting the person’s appointment in terms of sub-

article (3), as the case may be, and any person so

appointed shall continue in office for the remaining

period of the term of office of the person whom he

i s su b s t i t u t i n g a n d s h al l b e el i g i b l e fo r r e-

appointment.

(11) The Council shall meet at least once every

three (3) months and shall be convened by the

Chairperson

Provided that the Chairperson shall

convene a meeting of the Council when requested

to do so by at least three members thereof.

(12) The Council shall, subject to the provisions

of this Act, regulate its own procedures.

(13) The Council shall appoint a sub-committee

composed of three (3) members of the Council. The

sub-committee shall have a quorum of two (2)

members and the written response of the two (2)

members agreeing or disagreeing to a

recommended course of action shall suffice as an

expression of the views of the committee.".

29. Article 36 of the principal Act shall be substituted by the Substitution of

article 36 of the

principal Act.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 36 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

(1) The powers of the Council are

"Powers of the

(a)

to carry out such functions and

have such powers as may be prescribed, from

time to time, by the Minister responsible for

the voluntary sector by means of regulations

made by virtue of this Act;

(b) to provide a consultative forum

that can effectively address issues related to

the voluntary sector;

(c)

to assist the Commissioner for

Voluntary Organisations;

(d) to provide a platform from which

to develop co-operation between voluntary

organisations and the Government;

(e)

to stimulate co-operation and

networking between voluntary organisations;

(f)

to administer the Voluntary

Organisations Fund in terms of article 37(3);

(g) to promote and encourage a

culture of volunteering and participation in

volunteering activities among people,

especially children and youths, as an aspect

of personal and social development;

(h) to foster co-operation in the

voluntary sector with local and international

bodies, entities or other persons for the

encouragement and promotion of the

development of volunteering programmes,

initiatives and activities; and

(i) to encourage, in furtherance of the

principle of subsidiarity, non-governmental

bodies and private entities or persons and

local councils to contribute to the promotion

of volunteering in Malta.

(2) The functions of the Council are

(a)

to provide on-going guidance and

advice in relation to the implementation of

the Council’s strategy;

(b) to support, develop and promote

the interests and work of all voluntary

organisations in Malta and Gozo;

(c)

to meet the ever-increasing needs

of the voluntary sector;

(d) to make recommendations to the

Minister on a national volunteering policy, or

otherwise, in relation to the development of

volunteering;

(e)

to develop and implement

policies and strategies for the furtherance of

its objectives and functions, to initiate,

encourage and facilitate research and

development in relation to volunteering;

(f)

to promote and ensure the

education and preparation of volunteer

administrators and officials with the required

vocational and professional competencies,

and to promote, organise or assist by

whatsoever means, educational schemes for

volunteers;

(g) to promote and ensure the

establishment, development and maintenance

and proper use of the Voluntary Organisation

Centre, to be of service and a resource to

voluntary organisations;

(h) when so directed by the Minister,

to represent the Government of Malta

internationally or regionally in matters

related to the voluntary sector as may be

designated by the Minister;

(i)

to

support

voluntary

organisations in the acquisition of both local

and EU funds;

(j)

to

collect

and

distribute

information, and provide advice, on matters

related to the activities of the Council;

(k) to keep a register of bona fide

voluntary organisations, entities and other

persons who are considered to be voluntary

organisations;

(l)

to raise money and to administer

and expend money appropriated by the

House of Representatives or otherwise

received from other sources;

(m) to consult and co-operate with

local councils and other persons on matters

related to the voluntary sector;

(n) to draw up, develop and amend,

from time to time, a Code of Ethics to be

followed by volunteers and voluntary

organisations; and

(o) to carry out such functions and

have such powers as may be prescribed, from

time to time, by the Minister responsible for

Social Policy by means of regulations made

by virtue of this Act.

(3) Subject to the provisions of this Act, the

Council has the power to do all things necessary or

convenient to be done in connection with the

performance of its functions and shall be capable,

subject to the provisions of this Act, of entering

into contracts, of acquiring, holding and disposing

of any kind of property for the purposes of its

functions, of 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.

(4) The legal and judicial representation of

the Council shall be vested in the Chairperson and

the Deputy Chairperson in the absence of the

former, or in any other person under such terms

and conditions and with such powers as the

Council may from time to time by resolution

determine.

(5) Any document purporting to be an

instrument made or issued by the Council and

signed by the Chairperson shall be received in

evidence and shall, until the contrary is proved, be

deemed to be an instrument made or issued by the

Council.

(6) The Council may engage or employ

persons to perform services for the Council and

may enter into any agreement to exercise any of its

functions through the agency or services of any

person.

(7) The Council shall engage a Chief

Executive Officer in terms of the Public

Administration Act, and

(a)

subject to the other provisions of

this Act and to any directions of the Council,

the executive conduct of the Council, its

administration and organisation and the

administrative control of its officers and

staff, shall be the responsibility of the Chief

Executive Officer, who shall also have such

other powers as may from time to time be

delegated to him by the Council;

(b) the Chief Executive Officer shall

also be responsible for the implementation of

the objectives of the Council and the exercise

of its functions and without prejudice to the

generality of the foregoing he shall develop

the necessary strategies, policies and

regulations for the implementation of the

objectives of the Council, advise the Council

on any matter it may refer to him or on any

matter which he considers necessary or

expedient, and perform such other duties as

the Council may assign to him from time to

time;

(c)

the Chief Executive Officer shall

have the right to attend all the meetings of

the Council. The Chief Executive Officer

shall not, however, have a vote or be counted

for the purpose of constituting a quorum; and

(d) the Chief Executive Officer shall

perform all his duties only under the

direction of the Council.

(8) The Council may

(a)

obtain commercial sponsorship

for the Council and participate in marketing

arrangements involving the endorsement by

the Council of products and services

associated with volunteering;

(b) arrange for the manufacture and

distribution (whether for profit or otherwise)

of any article or thing bearing a mark,

symbol or writing that is associated with the

Council; and

(c)

provide (whether for profit or

otherwise) goods and services to persons

using, or otherwise attending at, facilities of

the Council.

(9) The Council may charge or impose such

reasonable fees in respect of

(a)

access to, or use of, any of its

resources or facilities; and

(b) the provision by it of programs,

services, information and advice.

(10) The Council shall meet as often as may

be necessary or expedient. The meetings of the

Council shall be convened by the Chairperson

either of his own initiative or at the request of at

least four (4) of the other members.

(11) The Council shall not act unless a

quorum consisting of not less than fifty percent

plus one (50% +1) of the appointed members are

present.

(12) The meetings of the Council shall be

chaired by the Chairperson or, in his absence, by

the Deputy Chairperson.

(13) Decisions of the Council shall be taken

by a simple majority of the votes of the members

present and voting. In the case of equality of votes,

the Chairperson or in his absence the Deputy

Chairperson shall have and exercise a second or

casting vote.

(14) Without prejudice to the other

provisions of this Act, no decision shall be valid

which is not supported by at least four (4)

members of the Council.

(15) Any vacancy among the members of the

Council, and any participation therein by a person

not entitled so to do, shall not invalidate the

proceedings of the Council.

(16) The Minister may, after consultation

with the Council, from time to time give to the

Council such directives in writing as he may deem

appropriate and not being inconsistent with the

provisions of this Act, and the Council shall, as

soon as may be, comply with and give effect to all

such directives and shall conduct its affairs

accordingly.

(17) The Council shall afford to the Minister

all necessary facilities for obtaining information

with respect to the property and activities of the

Council and furnish him with returns, accounts and

other information with respect thereto, and afford

him the necessary facilities for the verification of

information furnished, in such manner and at such

times as he may reasonably require.

(18) For the purposes of this Act the Council

shall submit to the Minister for his approval, a

two-year strategic plan which establishes clear

objectives and targets to attain its principal aims

and objectives during the said period in fulfilment

of its functions under this Act.

(19) The aforementioned strategic plan shall

be presented to the Minister for his approval not

less than two (2) months before the

commencement of the period to which the

strategic plan relates, and shall come into force on

the day on which it is approved by the Minister or

the day of commencement of the period to which it

relates, whichever is the later

Provided that the first strategic plan shall be

prepared by the Council and submitted to the

Minister for approval within six (6) weeks from

the date of appointment of the Council.

(20) The Council shall also from time to

time during the period in respect of which a

strategic plan is in force, consider and propose to

the Minister any necessary variations to the said

plan and, following approval by the Minister, vary

the said plan.

(21) The Council shall at the beginning of

each year in respect of which a strategic plan is in

force, prepare an operational plan that articulates

the programmes, initiatives and activities that it

will undertake in fulfilment of the objectives

defined in the said strategic plan for the said year.

(22) (a) Subject to the provisions of the

Constitution and of any other enactment applicable

thereto, including this Act, the Council, acting

with the concurrence of the Minister, may appoint

and employ such officials and other employees

with such remuneration and upon such terms and

conditions as the Council may, from time to time,

determine.

(b) The Chief Executive Officer shall

be appointed to act as the administrative official of

the Council and manage all the related operation.

(c)

The officer detailed for such duty

with the Council shall at all times be under the

administrative authority and control of the Council

but he shall for other intents and purposes remain

and be considered as a public officer.

(d) Without

prejudice

to

the

generality of paragraphs (a) to (c), the officer

detailed for duty as aforesaid, 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 appointment under the

Government 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 appointment under the

Government 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 Council.

(e)

Without

prejudice

to

the

generality of paragraphs (a) to (d), the officer

detailed for duty as aforesaid, shall, during the

period for which he is so engaged

(i) be entitled to have his

service with the Council 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 to any other right or

privilege to which he would be entitled;

and, or

(ii) be accountable for any

liability

Provided that, for the purpose of such

pension, gratuity or benefit, regard shall be had

solely to the substantive grade with the

Government of the officer so engaged.".

30. Article 37 of the principal Act shall be amended as Amendment of

article 37 of the

principal Act.

(a)

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

"(3) The objects of the Voluntary Organisations

Fund shall be to assist and support enrolled voluntary

organisations through education, management and support

and financial grants for the said purposes."; and

(b)

sub-article (8) thereof shall be deleted.

31. Article 38 of the principal Act shall be substituted by the Substitution of

article 38 of the

principal Act.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 38 "Voluntary organisations not to be established for trade. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

(1) Voluntary organisations shall not

be established principally for trading purposes nor

shall they regularly engage in acts of trade, but to

the extent that they are established for public

purposes which are achieved through the carrying

out of such acts of trade provided in sub-article (2),

voluntary organisations may regularly carry out

such acts of trade which are related and ancillary to

the principal purpose and objectives of the

organisations in order to achieve their public

purposes

Provided that trading activities which do

not fall within the exemptions of sub-article (2) but

which are only marginal to the income of the

voluntary organisation may also be carried out by

the voluntary organisation itself, subject to the

requirements established under sub-article (6).

(2) For the purposes of this article, the

following activities carried out by a voluntary

organisation and, or the following income

generated directly in the achievement of the public

purposes of such organisation, shall be presumed to

be permitted under sub-article (1)

(a)

the operations and activities

carried out by schools, training centres and

other educational institutes and the charging

of fees for educational services;

(b) income generated from the sale of

goods and, or the provision of services, by a

voluntary organisation when such goods and,

or services are themselves donated to the

voluntary organisation;

(c)

income generated from the sale of

goods and, or the provision of services only

to members, supporters, sponsors or

contributors of the voluntary organisation or

the group of organisations of which it forms

part;

(d) income generated from the sale of

goods or the provision of services on sites

administered by the voluntary organisation

and offered to bona fide visitors by the

organisation itself through volunteers or

employees

Provided that this shall not apply to

shops, bars, restaurants or other outlets on

such sites, or the sites themselves when these

operate under lease agreements, management

agreements, licences or otherwise by third

parties for profit;

(e)

the operations and activities of art

galleries, exhibitions, museums and other

organisations

established

for

the

advancement of culture, arts and national

heritage and the charging of fees for the

admission at theatrical, musical activities or

other such activities;

(f)

participation fees in competitions;

(g) payment

for

residential

accommodation, care and other philanthropic

support provided on a cost or subsidised

basis; and

(h) such other activities intended to

raise funds for the achievement of the

principal purpose and objectives of the

organisation resulting in

(i) income from the grant on

lease or a management contract of land

or buildings or other commercial

property to a third party, where no

services are provided by the voluntary

organisation;

(ii) income

from

the

investment of the assets of a voluntary

organisation, including the holding of

shares or other interests in another legal

organisation;

(iii) income which may be

made payable to voluntary organisations

which own, administer or otherwise

operate an innovative technology

arrangement; and

(iv) such other activities or

classes of income as may be prescribed

by regulations made by the Minister on

the recommendation of the Council.

(3) In cases other than those contemplated

in sub-articles (1) and (2), unless acts of trade and

trading activities are only marginal to the income

of the voluntary organisation, such organisation

shall establish a limited liability company to carry

out acts of trade and the administrators of the

voluntary organisation shall ensure that such

establishment shall not burden the human and

financial resources of such organisation beyond its

means.

(4) The

limited

liability

company

established in terms of sub-article (3)

(a)

shall in all cases be permitted to

carry out those acts of trade which are related

or ancillary to the principal purpose and

objectives of the voluntary organisation, or if

expressly permitted in the statute of such

voluntary organisation, subject to the

discretion

and

satisfaction

of

the

Commissioner;

(b) shall be non-profit making in

accordance with this Act;

(c)

shall have directors who do not

receive any remuneration for their services

for carrying out such functions except as

permitted by this Act and, or the statute of the

voluntary organisation; and

(d) shall not permit the evasion of the

limitations

imposed

on

voluntary

organisation in the First Schedule by any

person in the voluntary organisation or the

limited liability company and the same

limitations shall also apply in this case to the

limited liability company in the same way.

(5) For the purpose of this article

"marginal" means not more than ten per cent (10%)

of the income generated by the voluntary

organisation in any one year and the administrators

shall have the duty to determine whether any

activity, being an act of trade, is marginal or not,

for the purpose of this article and, when such issue

arises, shall submit a declaration in this regard to

the Commissioner who may

(a)

issue directives at any time in

writing on such matters if he deems that the

declaration submitted by the administrators

does not satisfy the criteria established in

terms of this article and may impose

conditions in relation to such activities to

ensure compliance with the principles

established under this article; and

(b) issue a ruling on the matter giving

reasons for decision, and any administrator or

any interested party may appeal from such

decision before the Administrative Tribunal.

(6) Voluntary organisations shall not be

exempt from the obligation to obtain any

authorisations or licences which may be required to

carry out any particular activity referred to in this

article in terms of any other law.

(7) The Commissioner may issue guidelines

on the duties and responsibilities of administrators

of voluntary organisations which carry out acts of

trade as permitted by this article or with regard to

all aspects regarding limited liability companies

which voluntary organisations establish in

accordance with this article.

(8) In cases falling under sub-article (4), it

shall be presumed that

(a)

a limited liability company

notwithstanding that it has a separate and

distinct legal personality, is only an

instrument to keep the trading activities

distinct from the activities of the voluntary

organisation promoting its social and public

purpose; and

(b) the existence of the limited

liability company shall not operate in any

way so as to prejudice third parties in good

faith or the voluntary organisation itself, to

reduce the transparency of the voluntary

organisation or to create any private benefit

to third parties which is not permitted within

the voluntary organisation itself.

(9) Any wholly owned limited liability

company established in accordance with this

article, which may be carrying on trading activities

from a premises or site held under any title by an

enrolled voluntary organisation shall have

absolutely no rights in relation to any concessions

leases or other grants of property to the said

voluntary organisation, including Government,

which shall be deemed to permit use of such

property by such wholly owned limited liability

company

Provided

that

any

documentary

arrangements set in place for governance purposes

between the voluntary organisation and the wholly

owned limited liability company shall be

disregarded with regard to any grantor organisation

and when any grant is modified or terminated for

any reason by or with regard to the voluntary

organisation, the limited liability company shall

automatically be affected thereby.

(10) Whenever a voluntary organisation

establishes a limited liability company in terms of

sub-article (3) of this article, the administrators

shall notify the Commissioner in the prescribed

form, which form shall be included in the Register

and shall be made accessible to the public. The

Commissioner shall notify the Commissioner for

Inland Revenue of the name and registration

number of such limited liability company upon

being notified. The same rules shall apply mutatis

mutandis to the winding up of any such limited

liability company.".

32. Article 39 of the principal Act shall be deleted.

33. Articles 40, 41 and 42 of the principal Act shall be re-

numbered as articles 39, 40 and 41 respectively.

34. Article 39 of the principal Act, as re-numbered, shall be

substituted by the following new article

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 39 "Guidelines issued by the Commissioner. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

(1) The Commissioner may, from

time to time and after consultation with the

Council, issue guidelines -

(a)

in

relation

to

voluntary

organisations and their activities;

(b) in relation to the voluntary sector

as a whole,

and such guidelines shall be binding on voluntary

organisations, administrators and volunteers, as the

case may be.

(2) The Commissioner may, with the

consent of the Minister, issue guidelines on the

objective classification of the categories of "social

purpose" or "public benefit" and related concepts

which may be used in the interpretation of this Act

for any of its purposes.

(3) Such guidelines shall be based on

internationally

recognised

classification

methodologies and shall be implemented in the

administration of the provisions of this Act and any

related laws

Provided that such guidelines shall not have

retrospective effect.".

35. Article 41 of the principal Act, as re-numbered, shall be Amendment of

article 41 of the

amended as follows

principal Act as

re-numbered.

(a)

in sub-article (1) thereof

(i) in paragraph (h) thereof, immediately after

the words "of voluntary organisations or the voluntary

sector" there shall be added the words "and to issue

guidelines thereon";

(ii) paragraph (p) thereof shall be re-numbered as

paragraph (s);

(iii) immediately after paragraph (o) thereof, there

shall be added the following new paragraphs

"(p) in relation to freezing orders and

related matters to support the powers of the

Commissioner in case of fraud;

(q) in relation to the enrolment of

organisations, including, after consultation with the

Council, to change the thresholds under article

12B(1)(e), (f) and (g) relating to mandatory

enrolment and to amend the categories or classes of

activities in the definition of "social purpose" in

this Act;

(r)

to regulate the prevention of money

laundering and the funding of terrorism in

voluntary organisations;"; and

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

be added the following new sub-article

"(3) The Minister may, by order published in the

Gazette and in consultation with the Commissioner and the

Council, revise or amend any of the schedules annexed to

this Act.".

36. Immediately after article 41 of the principal Act, as re-

numbered, there shall be added the following new Schedules

"FIRST SCHEDULE

(Articles 2 and 38)

Rules, Principles and Guidelines on the Non-Profit Making

requisite as used in this Act

The principle purpose of this Schedule is to ensure that any

material private interest in any voluntary organisation is avoided in

view of the public support and trust vested in such organisations on

the basis of their non-profit making qualities.

I.

Applicability

1. The following paragraphs shall apply specifically to the

interpretation and application of the provisions of this Act and in

particular to enrolled voluntary organisations for as long as they

remain enrolled and shall be applied as rules in order to ensure a high

level of observance in both form and substance by all enrolled

voluntary organisations.

2. They shall apply as principles in relation to non-enrolled

voluntary organisations.

3. They shall also apply to the interpretation of the provisions

of other laws, where such other laws adopt the concept of non-profit

making for the purposes and in terms of these provisions, and may

apply to non-profit organisations, which, for any reason, do not

qualify as voluntary organisations under this Act, political

organisations, or religious organisations

Provided that, in such cases, these paragraphs shall only operate

as non-binding guidelines.

II.

Definition

4. An organisation shall be considered to be non-profit

making when

(a)

the statute of the organisation contains an express

provision which excludes the purpose to make profit; and

(b) the purposes of the organisation do not include the

promotion of private interests; and

(c)

the purposes of the organisation include any of the

purposes established and permitted under

(i) article 32(8) and (10) of the Second Schedule

to the Civil Code;

(ii) article 38 of this Act governing permissible

trading activities, where such activities are carried out to

obtain the principal purpose and objectives of the

organisation;

(iii) this Schedule; and

(d) except as permitted under this Schedule or the

Second Schedule to the Civil Code, no part of the income,

capital or property is available directly or indirectly to

(i)

any administrator; or

(ii) any promoter, founder, member, donor or

beneficiary; or

(iii) any other private interest

Provided that such income, capital, property, or part

thereof is administered solely in order to obtain the purpose and

objectives for which the organisation was established.

5. If an administrator, promoter, founder, member, donor or

beneficiary is -

(a)

another enrolled voluntary organisation; or

(b) a pious foundation, an ecclesiastical entity or a

person representing the same; or

(c)

the Government or an organisation controlled by the

Government or a person representing the same; or

(d)

the Voluntary Organisations Fund; or

(e)

a political party as defined in the Financing of

Political Parties Act (Cap. 544),

the limitation in paragraph 4(d) shall not apply provided the

availability of such income, capital or property is subject to

conditions, which are consistent with the general purposes and

objectives of the grantor organisation.

6. (1) An endowment of property of a voluntary

organisation with reversion rights or assets in favour of the donor,

may only be accepted by a voluntary organisation if the donor agrees

to compensate the voluntary organisation for any costs incurred by

the organisation, except for costs attributed to ordinary wear and tear,

for any enhancements made to the property and which have not

accrued in full to the organisation during the period of enjoyment.

Such compensation shall be made by the donor in accordance with the

principles agreed to between the parties.

(2) In the case of a reversion of assets endowed to a voluntary

organisation under a temporary title, any administrator, partner,

promoter, founder, member, donor or any member of his family may

not realise a gain. Such prohibition shall also apply to shares or other

interests of organisations only where the increase in value of such

shares or interests, as reverting, is directly attributable to

contributions or expenditures made by the voluntary organisation

Provided that the above prohibition shall not apply if

enjoyment rights of the voluntary organisation arise under a

temporary title, which is onerous, including a lease, and is reasonably

in accordance with standard market levels or market conditions

established in terms of these provisions.

(3) If the reversion of assets, not being shares or other

interests, in favour of the donor has increased in value due to a direct

expenditure by the voluntary organisation, the donor shall be obliged

to refund the voluntary organisation the costs incurred by the

voluntary organisation, regard being had to depreciation for ordinary

wear and tear, where applicable

Provided that this shall not apply if the donor is a public

benefit organisation as defined in the Second Schedule to the Civil

Code.

(4) When such reversion takes place, it shall be notified to the

Commissioner. Such notification shall be accompanied by an

auditor’s report on costs incurred, wear and tear and gains received on

reversion, irrespective of the value involved, and the Commissioner

shall have all powers to order such refunds as deemed necessary, in

order to ensure that no abuse takes place owing to or resulting from

such transactions. Such order shall be subject to appeal under article

25 of the Act.

7. An organisation shall continue to be deemed as non-profit

making notwithstanding that

(a)

it obtains a pecuniary gain from its activities when

such gain is not received or accredited to its members, but is

intended exclusively for the achievement of the purposes and

objectives of the organisation as provided in its statute;

(b) it buys or sells or is otherwise involved in trading

activities of goods or services where such activities are carried

out exclusively to fulfil its principal purposes and objectives in

accordance with article 38 of the Act;

(c)

it is established for the general entertainment,

hobbies, education or other similar benefits to its members; or

(d) it is established for the promotion of the social role,

ethics, education and professional values exercised by its

members, provided it does not promote the private interests of

its members or private individuals.

III. Permissible Private Benefit

8. It shall be permissible for a voluntary organisation to have

within its objects or powers the grant of limited or ancillary private

benefit to identifiable persons or classes of persons provided that the

object or power comply with the following conditions

(a)

the purposes for which it has been established, may,

immediately or following the lapse of time or the fulfilment of a

condition, be achieved notwithstanding the private benefit;

(b) the funds available for use under such object or

power are not raised through a public collection, a grant or from

the general public but are raised only from the founder, or

organisations controlled by him, as a condition for the initial or

any additional endowment; and

(c)

the Commissioner approves the particular private

benefit in writing and under such conditions, as he considers

appropriate to safeguard the primacy and identity of the purpose

of the organisation, which is not private

Provided that until such time as the Commissioner

approves such private benefit as aforesaid, the organisation shall not

be obliged to enrol nor shall it be eligible for enrolment, or where

already enrolled, to maintain its enrolment but in such cases, the

organisation shall be prohibited from carrying out any of the activities

in article 12B(1)(a) to (d) of this Act.

9. The reservation by the founder of any right over the assets

of the voluntary organisation shall not prejudice the non-profit

making status of the organisation.

IV.

Meaning of Private Benefit

10. The term "private benefit" means a benefit other than that

which qualifies as a social or public benefit, indirectly attributed to an

administrator of the organisation, and if the statute so determines,

shall also include a donor, founder or promoter, a member of the

organisation, a beneficiary or a volunteer of money, goods, services

or property

Provided that such private benefit is limited and is only

ancillary or incidental to the principal purpose and objectives of the

organisation

Provided further that such benefit may be created for a

lawful purpose within the meaning of these provisions.

V.

Principles on Remuneration

A.

Donors, Founders, Promoters, Members, Volunteers

11. Subject to the provisions of paragraph 8 of this Schedule,

any donor, founder, promoter, member, or volunteer may receive

remuneration from the organisation when he is engaged or is an

employee of the organisation under a written contract or when he is

the provider of any goods or services to the organisation

Provided that such remuneration

(a)

is strictly attributable to those functions being the

subject of the written contract or to the governing provisions

relating to goods or services rendered to the organisation;

(b)

is not substantial and is in accordance with market

levels and market conditions established in terms of these

provisions, and in any case, is of material irrelevance when

compared to the overall income and expenditure of the

organisation;

(c)

is not as such as to prejudice the achievement of the

purposes and objectives of the organisation or its sustainability;

(d) is in any case, subject to the annual accounts and

annual returns submitted by the organisation, in terms of the

Voluntary Organisations (Annual Accounts and Annual

Returns) Regulations (S.L. 492.01); and

(e)

is recorded in sufficient detail in the minutes of the

administrators during the general meeting and in the case of an

investigation subject to any complaint on such matters, such

minutes shall be submitted to the Commissioner, upon his

request in writing, or to the Court, as the case may be.

B.

Administrators

12. (1)

Subject to the provisions of paragraph 8 of this

Schedule and any express prohibition in the statute of a voluntary

organisation, an administrator may solely receive remuneration from

the organisation when he is engaged or is an employee of the

organisation under a written contract which, in any case, does not

prejudice the achievement of the principal and sustainable purpose

and objectives of the organisation.

(2) An organisation may reimburse the administrator of any

costs incurred by him, if directly related to his work as administrator

of the organisation. The same rules shall apply to any fundraising

officers or employees.

13. Any voluntary organisation shall not

(a)

grant an administrator remuneration which is higher

than standard market levels or market conditions established in

terms of these provisions, unless the Commissioner may deem

necessary in the circumstance or is otherwise satisfied that the

administrator has specific skills which meet the needs of the

organisation, in which case, remuneration may exceed such

market conditions or market levels as provided in guidelines

issued by the Commissioner, according to his discretion, or as

otherwise approved by him;

(b)

remunerate any person, whether an employee or

otherwise, with a salary, wage or a fee, which is higher than

market levels, unless the Commissioner is satisfied that in that

particular case specific conditions apply;

(c)

pay interest or other remuneration on loans, credit or

financial instruments capable of economic evaluation raised or

acquired from organisations which are not licensed, or financial

institutions, other than in accordance with market conditions; or

(d) pay a price for any property acquired which is

higher than the established market price for such property,

notwithstanding any special discounts, sales or other special

arrangements.

VI. Expenses

14. Any administrator, donor, promoter, founder, member,

volunteer, or any other person supporting the purposes and objectives

of the organisation may receive a reasonable refund for expenses

incurred by him on behalf of the organisation.

VII. Principles regarding shares and other interests

15. When shares in a company are endowed to a voluntary

organisation to support the purposes, income or capital of the

voluntary organisation, the administrators may accept and hold the

same provided that such shareholding is in the interest of the

organisation. Such shareholding shall also be declared and recorded

in the annual returns and balance sheet in terms of the Voluntary

Organisations (Annual Accounts and Annual Returns) Regulations

(S.L. 492.01) and shall be accompanied by an annual report, both of

which shall be submitted to the Commissioner.

16. (1) The acceptance and enjoyment by a voluntary

organisation of an endowment of shares or other interests or of other

property held by another organisation which -

(a)

does not have the same purposes or uses which are

consistent with the recipient organisation’s purposes; or

(b)

is profit-making,

shall not affect the purpose of the recipient voluntary organisation nor

its non-profit making status for the purposes of this Act

Provided that such endowment shall not result in any

undue risk to the other assets of the voluntary organisation nor shall it

hinder the voluntary organisation in the achievement of its purposes

and objectives

Provided further that the following criteria and conditions

shall apply

(a)

the grantor organisation of which shares, interests or

the value of the property is being endowed to the recipient

voluntary organisation shall strictly adhere to the principles

applicable to market levels and market conditions as established

in terms of these provisions; and

(b) the requirements established under item 15 of this

Schedule shall apply.

(2) Without prejudice to any other law governing tax

exemptions, with particular reference to article 12 of the Income Tax Cap. 123

Act the conditional requirements mentioned under paragraph 15 and

sub-paragraph (1) of this paragraph shall, in particular, apply in order

(a)

eliminate any form of tax abuse which may

potentially arise in the setting up of organisations and to strictly

adhere to the non-profit making conditions;

(b) ensure that the set up of voluntary organisations and

their activities which benefit from tax exemptions shall be kept

separate and distinct from any trading or commercial activities

set up by commercial entities or their members or related

parties;

(c)

ensure that any income, shares, capital, interests or

value of property held by commercial entities is not accounted

for as exempt income;

(d) ensure that any expenses which are related to

exempt activities shall not be accounted for as expenses of

taxable entities to be set off against taxable income in violation

of tax exemption regulations; and

(e)

ensure that tax exemptions do not result in a

distortion as to the rules and conditions governing fair

competition.

17. When the voluntary organisation is not the sole

shareholder of a limited liability company, no part of the income,

capital, interests or value of property of such limited liability

company shall be available directly or indirectly to persons involved

in the voluntary organisation

Provided that the provisions of this Part VII shall not apply

to private foundations carrying out activities listed under article 31B

of the Second Schedule to the Civil Code.

18. The Commissioner may issue guidelines on grantor

companies or other organisations of which shares, capital, interests or

value of property are endowed to recipient voluntary organisations to

ensure compliance with the principles of this Act and any regulations

issued hereunder or under the Second Schedule to the Civil Code.

19. When a voluntary organisation has assets, including shares

or other interests, in another legal organisation, such assets may not

be sold or otherwise transferred to any administrator, partner,

promoter, founder, member, donor or any member of his family, of

the voluntary organisation.

VIII. Extension of Fiduciary Obligations

20. Without in any way impinging on the fiduciary obligations

of any administrators or officers of any organisation, any person who

has any role in an organisation for which remuneration is paid in any

form and, or has his expenses refunded, or has any control or powers

of disposition over the assets of a voluntary organisation, even if not

an officer, shall be considered to be subject to fiduciary obligations.

IX. Powers of the Commissioner

21. The Commissioner may request any information from any

person in order to enable him to establish whether an organisation

qualifies as non-profit making in terms of this Schedule and whether

the principles, rules or guidelines of this Schedule are being observed.

X.

Rulings

22. Any promoter, founder, member, administrator or donor or

other person referred to in this Schedule may apply to the

Commissioner in writing for a ruling on any matter related to the

qualification or otherwise of the organisation as non-profit making in

accordance with this Schedule with reference to himself or any other

person involved in an organisation.

The decision of the Commissioner shall be subject to an appeal

as stated in article 25 of the Act.

XI. Breaches

23. Any administrator who fails to observe the provisions of

this Schedule shall be guilty of a breach of duty and shall be liable to

refund the organisation

(a)

if permitted to receive remuneration, any such

remuneration received by any administrator in excess of the

permitted level;

(b) if not permitted to receive remuneration, all sums

received apart from expenses.

24. When an administrator agrees to pay other persons sums

which are not permitted to be paid or are in excess of permitted levels

as stated herein, he shall be jointly and severally liable with them to

refund such sums to the voluntary organisation.

XII. Applicability in Time

25. These provisions shall not apply retrospectively and shall

be without prejudice to the application of any rules of law in force on

the date (the "relevant date") when these provisions shall come into

force. All enrolled voluntary organisations shall seek to come in line

with these provisions within two (2) years of the relevant date and

may seek a ruling on such matters from the Commissioner in case of

doubt. Nothing herein contained shall invalidate any act carried out

prior to the relevant date when in accordance with applicable law nor

shall it render any person liable for anything carried out when, under

applicable law, this was not prohibited.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 40 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 1124B of the Code there shall be Addition of new

articles to the

added the following new articles

Code.

1124C. (1) Where a person is vested with

ownership, has registered in his name, holds,

exercises control or powers of disposition over

property subject to fiduciary obligations, such

property shall constitute a distinct and separate

patrimony, consisting of all relative rights and

obligations with respect thereto, and such property

shall not be subject to the claims or rights of action

of the fiduciary’s personal creditors, nor of his

spouse or heirs at law, except as stated in the

provisions of this Code or of special laws.

(2) Fiduciary ownership of property is

ownership as contemplated by Title II of Book

Second of this Code in so far as third parties are

concerned, but which is modified by the provisions

of this Title and any special laws and other

provisions of this Code which may be applicable,

in so far as it is subject to obligations towards and

for the benefit of another person, referred to as a

beneficiary, or for the achievement of a purpose, or

both. Such modifications imply restrictions and

limitations on the right of ownership consistent

with the provisions of this Title, the special laws on

trusts and other provisions of this Code.

(3) Where property subject to fiduciary

obligation is in the possession of a fiduciary and

owned by the beneficiary, the provisions of this

Code or of any other special law governing their

relationship shall apply in accordance with the

terms and conditions established by the fiduciary

and the beneficiary

Provided that such terms and conditions may

be modified in terms of the provisions of this Title

for the protection of the beneficiary and, or the

achievement of the obligation.

1124D. Where a fiduciary is vested with

ownership of a property, has it registered in his

name, holds, exercises control or powers of

disposition over such property and for any reason,

ceases to act as fiduciary and is thereafter replaced

by another fiduciary, the latter shall continue to

perform the same fiduciary obligations, as may be

applicable at the relevant time

Provided that

(a)

the transfer of rights and

obligations with respect to the property

subject to fiduciary obligations shall take

place in favour of beneficiaries and third

parties upon the execution of a written

instrument between the fiduciary ceding his

fiduciary obligation and the fiduciary

replacing him. The written instrument shall

specify the property subject to fiduciary

obligations, and shall empower the new

fiduciary to transfer all rights and obligations,

including possession and, or, delivery of the

property in favour of the beneficiary and any

third party, as the case may be, except as

stated in paragraphs (d) and (e);

(b) for any rights over immovable

property to be validly vested in the new

fiduciary, the execution of a public deed shall

be required;

(c)

the sole consideration for the said

transaction shall be that referred to in article

958L, which shall apply mutatis mutandis in

case of fiduciary obligations other than those

arising from trusts, and notwithstanding any

other law it shall not be required to state in

the relative instrument, including any public

deed, the value of the property being

transferred or delivered;

(d) the provisions of this article shall

also apply mutatis mutandis to the transfer of

a cell from one organisation to another or the

constitution of a cell as a new organisation

under articles 20A or 20B of the Second

Schedule, as the case may be;

(e)

all rights and obligations,

including any contracts which may be in

force, shall continue to operate in accordance

with their terms with reference to the

property subject to fiduciary obligations and

shall accrue and be binding on the new

fiduciary upon the transfer and, or delivery to

him of the property in accordance with

applicable law and any written instrument

regulating the fiduciary obligations and the

property subject to fiduciary obligation and

this without the need of any notice to or

consent of any other person except as

provided in this sub-article or applicable law;

(f)

the fiduciary who ceases to act as

a fiduciary shall no longer be entitled to all

the rights and powers and, subject to

paragraph (g), shall be released from all the

fiduciary obligations related to the property

subject to fiduciary obligations, including

any obligations under any contracts, once he

has carried out the transfer and delivery of the

property to the successor fiduciary after

obtaining all such consents as are required to

terminate his engagement as fiduciary under

any written instrument and observing all

formalities under applicable law;

(g) the fiduciary who ceases to act as

a fiduciary shall not be released of his

obligations towards the beneficiary with

respect to any property subject to fiduciary

obligations he may not have transferred,

delivered or accounted for or which may

come into his possession thereafter or for any

breaches of fiduciary obligations when he

was acting as fiduciary;

(h) the fiduciary who ceases to act as

a fiduciary shall not be released from any

obligations towards third parties which

(i) he has expressly entered

into in his own personal capacity and

interest and not in a fiduciary capacity;

or

(ii) he is personally liable for

under the provisions of this Title

towards a third party who was not aware

he was acting as a fiduciary, unless the

third party expressly releases him from

liability;

(i)

the appointment of another

fiduciary, as aforesaid, shall not be subject to

the provisions on assignment of rights nor

constitute a novation under the provisions of

this Code but shall be regulated by this article

and the provisions of the Trusts and Trustees

Act, when applicable;

(j)

any

undertaking,

guarantee,

hypothec, pledge or other forms of security

granted by the fiduciary or over or in relation

to the property shall not be affected in any

manner by the substitution of a fiduciary and

shall continue to attach to the property in

accordance with its terms and the applicable

law and when property subject to a hypothec

or privilege is the subject of a transaction

where another fiduciary replaces a fiduciary,

the fiduciary replacing the previous fiduciary

and the provisions of articles 2070 to 2083

shall not apply

Provided that this paragraph shall not

apply where the retiring fiduciary is already a

third party in possession in which case

articles 2070 to 2083 shall apply;

(k) the fiduciary ceasing his functions

or the replacing fiduciary shall

(i) notify interested third

parties of such substitution, at what time

and to what extent, while abiding with

any

confidentiality

obligations

regarding beneficiaries and their

interests;

(ii) where

rights

over

immovable property are subject to

fiduciary obligations, execute a public

deed with the fiduciary who has ceased

to perform his fiduciary obligations to

record that the fiduciary obligations

relating to such property have been

transferred to another fiduciary.

Nevertheless, if for any reason the

fiduciary ceasing his functions is not

able to appear on such public deed and

the property is in the possession of the

replacing fiduciary, the latter may state

such facts as are known to him, confirm

that such property is in his possession

and shall declare by means of a written

declaration

or

notification,

his

acquisition of title over the property and

the undertaking of the fiduciary

obligations. The transfer of ownership

of such property shall take place upon

the execution of such public deed and

the same rules shall apply mutatis

mutandis to other registered movable

property by the execution of a private

writing and any applicable registrations

or notifications as may be required by

law;

(iii) in so far as any security

forms part of the property subject to

fiduciary obligations and it is duly

registered in the Public Registry, the

new fiduciary shall, upon making a

unilateral declaration relating to the

relevant security, in accordance with the

applicable law, register the substitution

resulting from the written instrument

between himself and the former

fiduciary in the said register;

(l)

in cases where the substitution is

ordered or approved by a competent court or

regulatory authority, then no further consent

or agreements which may otherwise be

required under this article, applicable law or

the written instrument regulating the

fiduciary obligations, shall be necessary;

(m) the fiduciary who has ceased to

perform his functions shall be entitled to be

indemnified for liabilities, expenses or losses

he may incur with reference to the property

subject to fiduciary obligations even after he

has ceased to perform his functions except for

any breaches thereof;

(n) where a fiduciary dies in the

course of performing his fiduciary obligation

(i) his universal heir who has

reached majority and is capable at law,

or if more than one, each one of such

heirs severally, shall be deemed to be

executors ex lege of the property and

shall immediately transfer or deliver the

property to a successor fiduciary or the

beneficiary;

(ii) should the heir fail to

perform the duties in sub-paragraph (i)

within thirty (30) days, extendable by

the Court, he shall be considered to be

the temporary successor fiduciary and

shall have the same obligations towards

the beneficiaries as the deceased

fiduciary until he performs his

obligations as aforesaid;

(iii) should the heir be unable to

perform his duties in sub-paragraph (i)

for any reason not attributable to

himself, he shall apply to the competent

court providing the relevant information

and seeking an order as stated below;

(iv) when

the

deceased

fiduciary has appointed a testamentary

executor, the above duties, and all

relative powers to so act, shall bind only

the executor, unless the executor is also

a universal heir in which case sub-

paragraph (i) shall apply, such

testamentary executor shall be deemed

to have all the necessary powers for the

purposes

solely

of

recovering,

transferring or returning the property to

another fiduciary or to the beneficiary;

(v) notwithstanding the above,

a beneficiary, the heirs, the executor, as

the case may be, may apply to the Court

to confirm their powers or may appoint

an ad hoc testamentary executor at any

time, to act for the estate of the deceased

fiduciary for the purposes of recovering,

transferring or returning the property to

another fiduciary or the beneficiary and

the competent court may confirm to

which property such powers refer or

may

accede

to

such

request

notwithstanding any contestation of the

will or his appointment;

(vi) the successor fiduciary is

the person

A. designated in any

instrument

governing

the

fiduciary obligations; or

B. designated

in

accordance with any applicable

law; or

C. appointed by the

Court for such purposes, even if

only temporarily for this

purpose, on the demand by

application of any interested

party;

(o) where the fiduciary is a legal

person which is declared bankrupt, dissolved

or wound up, such obligations shall bind the

last directors jointly and severally or, if a

liquidator has been appointed, the liquidator,

as the case may be, and the provisions of

paragraph (j) shall apply mutatis mutandis;

(p) where there is more than one

fiduciary who holds, exercises control or

powers of disposition over property for a

beneficiary, such property shall, by operation

of law, consolidate in the ownership of the

remaining fiduciary or fiduciaries on the

death, resignation or removal of a co-

fiduciary. The remaining fiduciary or

fiduciaries shall execute a unilateral

declaration by public deed or other writing in

accordance with applicable law, which shall

be registered in the relevant register, so as to

declare the consolidation in his or their name

of the title or control of such property and the

consolidation shall thereon take place without

the need of any other formality.

1124E. (1) It shall be competent to any

beneficiary, in order to enforce fiduciary

obligations owed to him, to exercise a right of

action on the basis of the provisions of this Title.

(2) The demand may be made together with

any other action available under the provisions of

this Code or any other law and where such specific

right of action is not exercised, the remedies

contemplated herein may also be demanded by an

additional application to the Court, at any time of

the proceedings until the award of a final

judgement by the competent court or the Court of

Appeal.

(3) In the case of a fiduciary obligation

undertaken solely for the achievement of a purpose

and in the absence of any beneficiary, the above

right of action may be exercised by any person or

body granted the power to protect, supervise or

enforce the purpose in the instrument creating the

obligation or, in the case of an obligation

undertaken by a public benefit organisation, also

by the Attorney General.

1124F. (1) Notwithstanding any provision of

this Code or any other law, an action brought

against a fiduciary, or a person considered to be a

fiduciary under the provisions of article 1124A -

(a)

in respect of any fraud or

dishonesty to which such person was a party

or of which he had knowledge; or

(b) for the recovery from the

fiduciary, or any person considered to be a

fiduciary as aforesaid, of any property subject

to fiduciary obligations or previously

received by the fiduciary and converted to his

use, or for benefits or gains received as a

result of breach of duty,

shall

not

be

barred

by

prescription,

notwithstanding the lapse of time.

The action shall not be barred by prescription

irrespective of whether it is brought against the

fiduciary by a beneficiary who has suffered

prejudice as a result of the behaviour of the

fiduciary in relation to the same property or

property substituting the same.

(2) Notwithstanding the provisions of

article 2140 and without prejudice to article 2155,

a fiduciary or any person considered to be subject

to fiduciary obligations under this Title, shall not

acquire any property held under fiduciary

obligations by means of prescription.

(3) Where the fiduciary or beneficiary acts

in bad faith under the provisions of this Code, such

act shall be sufficient for an action not to be barred

by prescription.

(4) With the exception of the matters falling

within the scope of the preceding sub-article for

which there is no prescription, no action may be

brought against a fiduciary by a beneficiary for

breach of other fiduciary obligations referred to in

sub-article (4) of article 1124A, after the lapse of

five years. Such period shall commence -

(a)

from the date of the delivery of a

written account, or part thereof, of the

fiduciary activity to the beneficiary; or

(b) from the date on which the

beneficiary first had knowledge of the

occurrence of the breach of fiduciary duty,

whichever is the earlier date

Provided that, if the account or part thereof is

itself fraudulent or dishonest then, with reference

to the account or the relevant part, the period shall

only commence on the date referred to in

paragraph (b).

1124G. (1) When a fiduciary obligation is

imposed or undertaken solely to achieve a

designated purpose or purposes, including in the

case of a charitable trust or a purpose foundation,

without there being a beneficiary, such obligation

shall be valid and enforceable, and

(a)

where there is more than one

person who is so bound, their obligations

shall be joint and several; and

(b) in case of a foundation, the

administrators of the foundation shall be

jointly and severally obliged to perform the

fiduciary obligations with the foundation

itself.

(2) The provisions of this Title shall be

applied mutatis mutandis and the obligations of the

fiduciary shall be attributed towards achieving the

designated purpose in accordance with the terms of

the fiduciary obligation, any applicable law and the

provisions of this Title.

(3) When a fiduciary obligation is imposed

or undertaken by any religious organisation, Canon

law and other legislation governing religious

organisations shall apply and in case of

inconsistency shall prevail over the provisions of

this Title.

1124H. (1) The beneficiary shall be bound

towards the fiduciary

(a)

to perform all such obligations as

are agreed by him in writing or as may be

established in the relative instrument under

which the fiduciary obligations arise or as

may arise under the applicable law;

(b) to pay the remuneration to, and all

expenses incurred by, the fiduciary as may be

established in the relative instrument under

which the fiduciary obligations arise or are

governed;

(c)

subject to the provisions of any

special law or this Code which exclude

remuneration, where not expressly agreed in

the relevant instrument

(i) to pay such fees as are

reasonable as is established in

agreement with all beneficiaries who are

of age or as may be established by the

Court; and

(ii) the

fiduciary

may

reimburse himself or pay out of the

property subject to fiduciary obligations

all expenses properly incurred by him in

connection with his duties, in which

case the fiduciary shall notify the

beneficiary, or the persons required to

be notified in the relevant instrument or

applicable law, of such reimbursement

in the manner and at the time established

by applicable law.

(2) The beneficiary must at all times act in

good faith towards the fiduciary irrespective of the

manner by which or by whom the fiduciary has

been appointed.

(3) Subject to the terms of the instrument

governing the fiduciary obligations, the beneficiary

shall, to the extent of the property unless the

beneficiary has agreed otherwise, indemnify the

fiduciary for any liabilities the fiduciary may incur

in the carrying out of his fiduciary duties except to

the extent that the fiduciary is guilty of negligence,

wilful misconduct or fraud.

(4) Nothing in this article shall limit the

rights or remedies of the fiduciary under this Code

or any other law arising from bad faith or other

harmful acts on the part of a beneficiary.

1124I. (1) A fiduciary may, at any time,

apply to the Court for directions regarding the

performance of his obligations.

(2) Upon such application the Court may

issue any orders or directions as it thinks fit.

1124J. In the application of the provisions of

this Title the following principles shall apply

(a)

when a fiduciary relationship is

governed by particular rules, whether because

of the source and type of the obligations or

because of any special law, such particular

rules shall apply to the context and these

provisions shall apply as necessary to support

the interpretation of the said rules;

(b) it shall be presumed that these

provisions

operate

consistently

with

particular rules applicable to any particular

fiduciary relationship or obligation but, in

case of inconsistency, the particular rules

shall prevail over the provisions of this Title;

(c)

the provisions of this Title shall

apply to all fiduciary obligations, which exist

at the time of the coming into force of these

provisions, or any amendments thereof, even

if arising before such date, as well as any

fiduciary obligations arising thereafter

Provided that such provisions shall not

apply retrospectively where their effect is to

deny or restrict any vested right or create any

liability where such did not occur under law

prior to such provisions coming into force;

(d) where a fiduciary obligation is

vitiated by a breach or attempted breach of

law by the parties or any one of them and is

thereby rendered unenforceable due to the

falsity or illegality of the cause, the

compliance by the beneficiary or the

fiduciary, or both, with such law or a change

in law resulting in the cause no longer being

false or unlawful, shall render the fiduciary

obligation enforceable with effect therefrom.

In such cases, the Court may give such

interim orders it considers appropriate to

ensure compliance with the law or to prevent

the further abuse by the parties or any one of

them.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 41 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 1 of the Second Schedule shall be amended as Amendment of

article 1 of the

follows

Second

Schedule.

(a) sub-articles (2), (3), (4), (5), (6), (7), (8) and (9)

thereof shall be re-numbered as sub-articles (6), (7), (8), (9),

(10), (11), (12) and (13) respectively;

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

be added the following new sub-articles

"(2) Organisations may be established in different

legal forms.

(3) The lawful purpose of an organisation

referred to in sub-article (1) shall not be contrary to morals

and public policy, which purpose or purposes shall be one

of the categories referred to in sub-article (4).

(4) Every organisation shall be categorised

according to its purpose and the purpose of any

organisation may be

(a) to exclusively promote a social or public

purpose on a non-profit making basis, excluding

any private benefit, or if it has beneficiaries, be for

the benefit of public interest beneficiaries. For the

purposes of this paragraph "public interest

beneficiaries" shall mean any of the following

(i) organisations,

which

are

themselves established exclusively for social

or public purposes on a non-profit making

basis;

(ii)

religious organisations;

(iii) public organisations; or

(iv) beneficiaries referred to in article

32(8)

Provided that this excludes any private

benefit other than those listed under the First

Schedule to the Voluntary Organisation Act or

under this Schedule, in which case it is referred to

as a "public benefit organisation"; or

(b) to promote any lawful purpose in terms

of the Voluntary Organisations Act other than those

referred to in sub-paragraph (i), whether for a

private benefit or not, in which case it is referred to

as a "private benefit organisation".

(5) When a private benefit organisation is

established with beneficiaries, the organisation shall be for

the benefit of a person or class of persons who can be

ascertained, through the designation of named persons,

whether they are members, shareholders or other interests

or rights, or are otherwise ascertainable.";

(c)

in sub-article (6) thereof, as re-numbered,

immediately after the words "constitutive instrument" there

shall be added the words "or statute";

(d) in sub-article (11) thereof, as re-numbered, for the

words "to the particular legal form shall apply." there shall be

substituted the words "to the particular legal form shall also

(e)

sub-article (13) thereof, as re-numbered, shall be

substituted by the following

"(13) In this Schedule

(a) "constitutive instrument" means the

public deed, private writing, resolution or any other

written instrument or document, or the relevant

part thereof, which establishes an organisation of

any form and includes a will which provides for the

setting up of an organisation;

(b) any reference to "the Court" shall be

deemed to be a reference to the Civil Court

(Voluntary Jurisdiction Section) unless it is

otherwise expressly stated;

(c) "deed of foundation" means the public

deed or part thereof, which establishes a foundation

and regulates its governance in terms of article 29.

When a provision in this Schedule establishes a

requirement relating to the deed of foundation, this

shall be satisfied if such requirement is found in the

constitutive instrument or in the statute, or a

combination of both, as the case may be;

(d) "interested party" means a person who

is given rights capable of economic valuation,

present or future, actual or contingent, in the

constitutive instrument or statute of an organisation

or who is given powers or functions therein and

shall not include other persons unless the context

otherwise requires, and this, without prejudice to

the right of any person to pursue any civil right or

remedy he may have;

(e) "international organisation" means an

organisation of which only States or other

international organisations are members;

(f) the term "non-profit making" shall have

the meaning as assigned to it in article 2 of the

Voluntary Organisations Act ;

(g) "political

purpose"

means

the

promotion of the interests of a political party or a

political candidate, whether at local, national or

international level and "political party" shall have

the meaning assigned to it by the Financing of

Political Parties Act and for the purpose of this

Schedule shall include any other organisation, of

whatever legal form, financially controlled by or

affiliated with a political party or its purpose, as

stated in its statute or constitutive instrument or

public deed or an organisation which acts in such

manner which is not autonomous from a political

party and the terms "political candidate" and

"political organisation" shall be construed

accordingly;

(h) "promoter" means a person who

promotes the establishment of an organisation or

holds himself out to third parties as such and, after

the establishment of an organisation, in the case of

a foundation means the founder and in the case of

an association means the first associating members;

(i)

"public deed" shall include any

documents annexed to such public deed in

accordance with the Notarial Profession and

Notarial Archives Act ;

(j)

the terms "public purpose", "public

benefit" and similar phrases mean a social purpose

and any other purpose or benefit which promotes or

serves the general public or general interest or a

sector of the general public and does not promote

or serve any private benefit except as permitted by

the Voluntary Organisations Act and this Schedule;

(k)

the term "public organisation" shall

mean any organisation which is controlled, directly

or indirectly, by the Government and an

organisation is "controlled by the Government"

where the Government enjoys the power to appoint

or remove a majority of the administrators of the

organisation;

(l)

"relevant date" means the 1st April

2008;

(m)

"relevant persons" means

(i)

the administrators;

(ii) the protector or members of a

supervisory council, if any; and

(iii) any

other

natural

person

exercising ultimate and effective control over

the association by means of indirect

ownership or by other means, including any

person, other than those already referred to in

paragraphs (a) and (b) of this definition,

whose consent is to be obtained or whose

direction is binding, in terms of the statute of

the association or any other instrument in

writing, for material actions to be taken by

the administrators thereof;

(n) "religious organisation" means an

organisation established by a religious authority or

another religious organisation of any denomination

to fulfil a religious purpose including a pious

foundation or ecclesiastical entity as defined in this

Schedule;

(o) "social purpose" means any charitable

or philanthropic purpose, and without prejudice to

the generality of the aforesaid, includes

(i) the advancement of education,

including physical education and sports;

(ii) the advancement of religion;

(iii) the advancement of health;

(iv) social

and

community

advancement, including the promotion of the

ethical, educational and social aspects of a

particular profession or trade;

(v) the advancement of culture, arts

and national heritage;

(vi) the

advancement

of

environmental protection and improvement,

including the protection of animals;

(vii) the promotion of human rights,

conflict

resolution,

democracy

and

reconciliation;

(viii) the promotion or protection of the

interests of other public benefit organisations,

including federations of such organisations;

(ix) the carrying out of activities

intended to raise funds to support other

organisations which are exclusively public

benefit organisations or to support the

voluntary sector as a whole or parts of it

through the application, grant, transfer or

otherwise making available of funds so raised

to them or for their benefit;

(x) any other purpose as may be

prescribed by the Minister responsible for

justice by means of regulations made by

virtue of this Schedule,

and for the purpose of this Schedule, includes a

political purpose;

(p) "special law" means an Act of

Parliament or any regulations made thereunder or a

part of this Code or a part of this Schedule which

regulates specifically a particular legal form or

forms

of

organisations,

including

civil

partnerships, foundations and associations;

(q) "statute" means the public deed, private

writing, resolution or any other written instrument

or document, or the relevant part thereof, which

governs the purposes, objects, structure, internal

management and administration of an organisation

on a continuing basis after the organisation has

been established, whether it forms part of the

constitutive instrument, as an appendix or

otherwise, or is an independent instrument;

(r) "writing" when used in relation to a

notice to be sent shall mean printed, typewritten, or

otherwise visibly represented, copied or

reproduced, including by fax or electronic mail or

other electronic means and in the case of a private

writing a combination of several signed copies of

the same instrument shall suffice.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 42 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 2 of the Second Schedule shall be amended as Amendment of

article 2 of the

Second

Schedule.

(a)

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

(i) immediately after the words "under the laws

by which they are established" there shall be added the

words "or if they are registered overseas, under the laws of

the place of registration,"; and

(ii) for the words "for all purposes of law" there

shall be substituted the words "for all purposes of law, with

the characteristics of the legal form they may take under

the applicable law";

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

following

"(2) International organisations which are granted

legal personality in any multilateral or bilateral treaty or

agreement to which States or international organisations,

as subjects of international law are parties, shall be

recognised as legal persons for all purposes of law, which

personality shall be governed by the relevant treaty or

agreement or by any law of any State which is selected for

the purpose by the parties thereto. The Minister

responsible for justice shall, from time to time, publish a

list of such organisations in the Gazette.";

(c)

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

following

"(3) In the case of a foreign or international

organisation which has legal personality, the law, treaty or

agreement applicable in terms of sub-articles (1) and (2)

shall apply to all matters regarding such legal persons,

including their form, their existence, the setting-up and

effects of their statute, constitutive instrument or public

deed and their administration, the liability of persons who

control or manage or are otherwise involved in such

organisations and their dissolution, and to the extent that

an international organisation is subject to a special law

following the ratification by the State of the treaty

establishing such organisation, such organisation shall also

be governed by such law and in case of inconsistency with

its Statute or agreement, the latter shall prevail.";

(d) sub-article (4) thereof shall be re-numbered as sub-

article (6);

(e)

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

be added the following new sub-articles

"(4) Subject to the provisions of article 19(8), a

foreign or international organisation which does not have

legal personality under the applicable law shall be

recognised as a legal organisation and all matters regarding

such foreign or international organisation including its

form, its existence, the construction and effects of its

constitutive instrument or statute, the liability or otherwise

of its promoters, members or its administrators, its

administration and its dissolution shall be governed by the

proper law applicable to its constitutive instrument or

statute, either express or according to applicable law.

(5) Notwithstanding the law applicable in

accordance with the preceding provisions, when there

exists the power to carry out a trading or a commercial

activity, the limitations established under article 32A shall

apply to activities in Malta in case of foundations

established outside Malta.";

(f)

sub-article (6) thereof, as re-numbered, shall be

amended as follows

(i) immediately after the words "required to

register" there shall be added the words "by notice in the

prescribed form"; and

(ii) for the words "For the purposes of this article

"regular activity" means activity having a duration of more

than three months or which is carried out through a

permanent establishment in Malta." there shall be

substituted the following

"For the purposes of this sub-article

(a) "regular activity" means an activity

having a duration of more than three months or

which is carried out through a permanent

establishment in Malta; and

(b) "permanent establishment" includes a

place of business, office or branch through which

an activity is carried out on a stable and continuous

basis

Provided that the obligation to register shall

not apply to foreign religious organisations."; and

(g) immediately after sub-article (6) thereof, as re-

numbered, there shall be added the following new sub-articles

"(7) Where a foreign or international organisation,

whether having legal personality or not, does not carry out

regular activities in Malta, but needs to prove its

recognition under this article for the purpose of

applicability of the laws of Malta other than this Schedule,

the organisation may register under this sub-article by

means of a notice in the prescribed form.

(8) Whenever the purposes or activities of a

foreign or international organisation are the subject of laws

regulating credit institutions, insurance undertakings,

investment services or funds or the provision of trustee,

fiduciary, or corporate services or other licensable or

regulated activities, such organisation may only be

registered with the prior written consent of the Malta

Financial Services Authority, when so required by the

applicable law and where it is otherwise the competent

authority under such law, unless the foreign or

international organisation is expressly exempted from

obtaining authorisation under Maltese law.

(9) The Minister responsible for justice may from

time to time issue regulations to modify and redefine what

constitutes "regular activity" and to regulate registrations

under this article.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 43 Amendment of article 3 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 3 of the Second Schedule shall be amended as

follows

(a)

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

personality shall be granted on the registration of an

organisation in the Public Registry in accordance with article 12

of this Schedule." there shall be substituted the words "Except

where legal personality is recognised or established by a law or

an international treaty or agreement or is granted in virtue of

registration pursuant to any special law, legal personality shall

only be acquired by an organisation on its registration with the

Registrar for Legal Persons in accordance with article 12."; and

(b) in sub-article (4) thereof, for the words "or to their

purpose or both" there shall be substituted the words "or to their

purpose or category".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 44 Amendment of article 4 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 4 of the Second Schedule shall be amended as

follows

(a)

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

following

"(1) Every legal person has a patrimony which

shall be appropriated to a purpose or purposes in

accordance with article 1.";

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

members" there shall be substituted the words "they have

members";

(c)

sub-article (5) thereof shall be amended as follows

(i) for the words "shall be vested in the manner

stated in the statute of the organisation or the applicable

law, and the administrators" there shall be substituted the

following

"shall be vested

(a) in all cases, in any one or more of the

administrators, jointly and severally, in the manner

stated in the statute or the applicable law;

(b) without limiting the powers of

representation of the administrators as stated in

paragraph (a), in other persons as are named in the

statute of the organisation or other holders of office

therein designated; and

(c)

the administrators;";

(ii) for the words "the constitutive act" there shall

be substituted the words "the statute";

(iii) in the proviso thereto, for the words "from the

deed of constitution" there shall be substituted the words

"from the statute"; and

(iv) immediately after the proviso thereto, there

shall be added the following new proviso

"Provided further that in the absence of any

statement on the legal representation of any

organisation in the statute, the sole administrator,

or if there are more than one, any two

administrators, shall have the legal representation

of the organisation in accordance with this sub-

article.";

(d) sub-article (6) thereof shall be substituted by the

"(6) Every legal person shall have at least one

administrator who may act on its behalf or have such

minimum number of administrators as may be required by

the law applicable to its legal form, purpose or category.";

(e)

sub-article (7) thereof shall be amended as follows

(i) for the words "undertaken, except as

otherwise stated in any special law" there shall be

substituted the words "undertaken, and except as otherwise

stated in any special law";

(ii) immediately after the proviso thereto there

shall be added the following new proviso

"Provided further that notwithstanding the

provisions of this sub-article, where a third party

deals in good faith with persons acting in the name

or on behalf of a legal person before its

establishment, any contract would come into effect

from the date on which the organisation shall come

into existence, and the organisation shall be

entitled to be indemnified by the persons who had

acted in its name or on its behalf with respect to its

liability under this sub-article towards the said

third party.";

(f)

sub-article (9) thereof shall be amended as follows

(i) in paragraph (a) thereof, immediately after

the words "shall be revocable on demand" there shall be

added the words "by application to the Court";

(ii) in paragraph (b) thereof, immediately after

the words "shall be revocable on demand" there shall be

added the words "by application to the Court",and

(iii) in paragraph (d) thereof, immediately after

the words "or other interested party" there shall be added

the words "or to order the administrator or any other

relevant person to register the organisation and do all such

acts as may be necessary to ensure that the intent of the

testator or donor, as the case may be, is achieved"; and

(g) sub-article (10) thereof shall be substituted by the

following

"(10) The provisions of sub-article (9) shall not

apply to testamentary dispositions and donations in favour

of pious foundations, marriage legacies and ecclesiastical

entities.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 45 Amendment of article 5 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 5 of the Second Schedule shall be amended as

(a)

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

act" there shall be substituted the words "statute, constitutive

instrument or public deed"; and

(b)

sub-article (4) thereof shall be amended as follows

(i) in paragraph (a) thereof, for the words

"constitutive act" there shall be substituted the words

"statute, constitutive instrument or public deed";

(ii) in sub-paragraph (i) of paragraph (b) thereof,

for the words "constitutive act" there shall be substituted

the words "constitutive instrument or statute";

(iii) in sub-paragraph (ii) of paragraph (b) thereof,

for the words "to their particular legal form" there shall be

substituted the words "to its particular legal form";

(iv) in paragraph (c) thereof, for the words "the

purpose for which they have been established" there shall

be substituted the words "the purpose for which it has been

established";

(v) in paragraph (d) thereof, immediately after

the words "no administrator in office" there shall be added

the words "or the number of administrators falls below the

minimum required by law for a particular legal form;"; and

(vi) paragraph (e) thereof shall be substituted by

the following

"(e) when the number of members falls

below that required by this Schedule in the case of

an association or when there are no beneficiaries in

the case of a beneficiary foundation.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 46 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 6 of the Second Schedule shall be amended as Amendment of

article 6 of the

Second

Schedule.

(a)

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

(i) the words "in terms of customary law or"

shall be deleted;

(ii) immediately after the words "delivered by

any Court" there shall be added the words "relating to that

particular organisation";

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

special law, is required" there shall be substituted the

words "or any special law, or is required";

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

accordance with sub-article (1) but such foundation, as well as

its administrators, shall be governed by the provisions of this

Schedule applicable to unregistered organisations with effect

from the lapse of the two-year period referred to in sub-article

(2)." there shall be substituted the words "in accordance with

sub-article (1).";

(c)

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

following

"(4) Religious organisations and marriage legacies

which are constituted as foundations shall not be bound to

register and shall continue to be recognised as legal

persons until they are wound up.";

(d) sub-articles (5) and (6) thereof shall be substituted

by the following

"(5) An existing foundation which has been

established by a public deed and notwithstanding whether

it was registered pursuant to this Schedule or not shall

(a) have full legal capacity and all the

powers of a registered legal person as stated in this

Schedule and the restrictions in article 14 shall not

apply to it;

(b) continue to be the exclusive owner of all

its property even if acquired after the lapse of the

period referred to in sub-article (2) and shall be

liable for its own obligations;

(c) until it is registered in accordance with

this Schedule, the liability of its administrators

shall be governed by the provisions of article 17

and other provisions applicable to unregistered

organisations for all acts carried out from the lapse

of the period stated in sub-article (2) until the date

of registration but the administrators shall not be in

any way liable for obligations entered into by the

existing foundation prior to such date unless they

have personally assumed such obligations in

writing; and

(d) when it is registered, the provisions of

article 16 shall thereafter apply to all acts of the

administrators after the date of registration.

(6) An existing foundation which has not been

established by a public deed and which fails to register

(a) have the capacity only to achieve its

stated purposes and all ancillary matters;

(b)

be subject to the restriction in article

14(5);

(c)

be deemed to be the exclusive owner of

all its property which shall constitute a distinct

patrimony; and

(d) have its administrators be jointly and

severally liable and with the organisation for the

obligations entered into by the foundation, subject

to the provisions of the second proviso to article

17(3)."; and

(e) immediately after sub-article (6) thereof, as substituted,

there shall be added the following new sub-articles

"(7) All associations, established in writing before

the relevant date, hereinafter referred to as "existing

associations", the form of which is recognised as a legal

person in accordance with applicable law or, in terms of

any final judgement delivered by the Court relating to that

particular organisation prior to the relevant date shall

continue to be recognised as legal persons although they

are not registered; however, existing associations which do

not register as legal persons, as well as their

administrators, shall be governed by the provisions of this

Schedule applicable to unregistered organisations with

effect from the lapse of four calendar years from the

relevant date.

(8)

When an organisation -

(a) is established as an association but has

the characteristics of a foundation; or

(b) is established as a foundation but has the

characteristics of an association; or

(c) qualifies for registration both as a

foundation and as an association,

it shall be referred to herein as a "hybrid organisation" and

shall be regulated by the following provisions of this

article.

(9) A hybrid organisation shall be established by

means of a statute, which may be amended from time to

time, to clearly identify the form of a foundation or an

association.

(10) Until the hybrid organisation complies with

sub-article (9), the administrators shall be subject to the

provisions of this Schedule on both foundations and

associations in their administration.

(11) Where an action to modify the statute of a

hybrid organisation is not taken by the founders or such

other persons or bodies authorised by the statute or, in the

case of associations, the members, or it is impossible or

impracticable to do so, the administrators of a hybrid

organisation may, at any time, apply to the Court to

sanction such modifications as are appropriate to clarify

the legal form of such organisation either as a foundation

or an association and the Court shall issue such orders as it

deems appropriate, including amendments to the statute

and the name of the organisation, after considering all

evidence submitted to it and after hearing interested parties

who may wish to make submissions.

(12) In reaching a decision in terms of the

preceding sub-article, the Court shall inter alia pay regard

to the initial intentions of the promoters, the purposes of

the organisation and its current operations, the rights of

beneficiaries or members, the future fulfilment of its

purposes and management of the organisation.

(13) The Court shall also have the power to

(a) order, upon application of the

administrators, the re-organisation of the

organisation by the creation of other organisations

whereby one or more promoters, founders,

members or beneficiaries, as the case may be

(i) cease to be treated as founders or

otherwise of a foundation and, or form an

association with the sole purpose of

supporting the said foundation or enjoying

the benefits of membership; or

(ii) cease to be treated as members of

an association and, or form a foundation to

achieve the stated purposes without any

benefits of membership;

(b) direct otherwise than as provided in

paragraph (a) so as to ensure the effective

achievement of the initial purposes of the

organisation.

(14) In making an order referred to in the

preceding sub-article, the Court shall ensure that neither

the purposes of the organisation nor any vested rights of

any person shall be affected, nor shall any obligations

other than those freely undertaken by any person arise

from such modification or reorganisation.

(15) It shall not be lawful to register a hybrid

organisation under this Schedule and the Registrar shall

require compliance with sub-article (9) prior to accepting

the registration thereof.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 47 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 7 of the Second Schedule shall be amended as Amendment of

article 7 of the

Second

Schedule.

(a)

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

(i) immediately after the words "ensuring

compliance with the" there shall be added the words

"constitutive instrument and"; and

(ii) for the words "particular legal form" there

shall be substituted the words "particular legal form,

purpose or category";

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

following

"(3) The statute shall designate the first

administrators, how they are appointed and removed from

office or if not designated, how administrators are

appointed and removed."; and

(c)

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

be added the following new sub-article

"(5) If a legal person does not have at least one

administrator in office or the minimum number of

administrators required at law, the Attorney General or any

other interested party shall be entitled to request the Court

to appoint an administrator or administrators for such

purposes, for such time and under such conditions as the

Court considers appropriate. When such an application is

made, the period referred to in article 5(4)(d) shall be

suspended until the Court determines the application and

should an application be made after the lapse of the said

period, an appointment by the Court shall be effective

provided it is made at any time prior to the striking off of

the legal person from the relevant register.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 48 Amendment of article 8 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 8 of the Second Schedule shall be amended as

(a)

in sub-article (1) thereof, immediately after the

words "in the previous ten years" there shall be added the words

"or persons who have been interdicted by order of any court in

Malta in terms of the Criminal Code, or overseas under laws of

equivalent effect,";

(b) sub-articles (2) and (3) thereof shall be substituted

by the following

"(2) Persons convicted of any offence involving

money laundering or the funding of terrorism shall not be

eligible for appointment or election to the office of

administrator or, if already appointed or elected, shall not

be eligible to retain such office.

(3) The Court may, either generally or with

reference to a particular organisation -

(a) disqualify any person from holding an

office within an organisation; or

(b) disqualify any person from performing

identified functions within an organisation,

and this, on any of the grounds mentioned in this article,

following the application of any interested party, the

Attorney General or, in the case of voluntary organisations,

the Commissioner for Voluntary Organisations.

The Court may rehabilitate such person in

accordance with regulations, which may be made by the

Minister responsible for justice from time to time

regulating the disqualification of administrators, their

rehabilitation and the registration of such disqualification

and rehabilitation orders in the Registry for Legal Persons

or the Public Registry, as the case may be."; and

(c)

immediately after sub-article (3) thereof, as

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

"(4) Persons who are subject to a disqualification

order issued by the Court in terms of sub-article (3) shall

not perform such functions, either generally or with

reference to a particular organisation, and this, for such

times as are stated in the order.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 49 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 10 of the Second Schedule shall be amended as Amendment of

article 10 of the

Second

Schedule.

(a) in sub-article (2) immediately after the words "shall

be reviewed" there shall be added the words "and shall be

published and, or filed";

(b) sub-article (3) thereof shall be re-numbered as sub-

article (4); and

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

be added the following new sub-article

"(3) Until such time as

(a) the form and content of accounts and

reports; and

(b) the rules on review, publication and, or

filing are prescribed in terms of sub-article (2), for

legal organisations, the form of which is not already

regulated by a special law, in which case the special

law shall apply, the following shall apply

(i) in the case of organisations

established exclusively for public benefit, the

provisions applicable to enrolled voluntary

organisations shall apply, irrespective of

whether such organisations are enrolled or not

Provided that this paragraph shall not

apply to organisations established for a political

purpose, which shall be regulated mutatis

mutandis by the Financing of Political Parties Cap. 544.

Act

Provided further that, when the

organisation is not a political party as defined

under article 2 of the Financing of Political Cap. 544.

Parties Act but is only controlled by or

affiliated to a political party, or its purpose as

stated in its statute or constitutive deed, is such

as renders it non-autonomous;

(ii) in the case of organisations, which

promote a form of private benefit

A. in the case of foundations

which are permitted to carry out

commercial activities under article 31B,

in lieu of the requirements prescribed

under articles 13 to 18 of the Commercial

Code, the provisions of Chapter IX and X

of Part V of Title I of the Companies Act

shall apply mutatis mutandis and any

references made to the Registrar of

Companies shall be made to the Registrar

for Legal Persons

Provided that the Minister shall

have the power to issue regulations on

matters stated in articles 188 and 189 of

the Companies Act and also to exclude

the application of specific articles or sub-

articles of the said Act and to determine

the manner in which they are to apply in

such context;

B. in the case of private

foundations as defined in article 31B, the

guidelines issued by the Malta Financial

Services Authority relating to trustees;

C. in the case of associations

promoting a form of private benefit

where all the members are limited

liability companies, the provisions of sub-

paragraphs A and B shall also apply; and

D. in all other cases the

provisions of sub-article (1) shall apply

Provided that, the Commissioner

shall have the power to issue guidelines

to exclude the application of such

associations when these are promoting a

form of private interest, which goes

beyond the limit of incidental or ancillary

private benefit as defined in terms of the

provisions prescribed under the Voluntary

Organisations Act .".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 50 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after sub-article (4) of article 11 of the Amendment of

Second Schedule, there shall be added the following new sub-article: article

Second

Schedule.

"(5) The Registrar for Legal Persons shall administer the

Registry for Legal Persons which shall form part of the Public

Registry and, in the absence of any provisions to the contrary,

the Public Registry Act shall apply mutatis mutandis to Cap. 56

registrations made in terms of this Schedule. In case of

inconsistency, the provisions of this Schedule shall prevail.

Save as otherwise provided, all registrations in terms of this

Schedule shall be made with the Registrar for Legal Persons

unless registration in the Public Registry is specifically

required.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 51 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 12 of the Second Schedule shall be amended as Amendment of

article 12 of the

follows

Second

Schedule.

(a)

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

the Public Registry" there shall be substituted the words

"registered with the Registrar for Legal Persons";

(b) in sub-article (4) thereof, immediately after the

words "are already registered" there shall be added the words

"in a public registry";

(c)

sub-article (5) thereof shall be substituted by the

following

"(5) It shall be a condition for registration of any

organisation the administrator or administrators of which

are not ordinarily resident in Malta, to appoint and retain at

all times, a person who is ordinarily resident in Malta to

act as local representative and such representative shall

have, by operation of the law and without the need of any

act on the part of the administrators

(a) the legal representation of such

organisation in Malta and this for all purposes of

any law in Malta; and

(b) the legal representation of such

organisation limitedly to the signing of forms and

other notifications to the Registrar and other

competent authorities in Malta and the enrolment

of instruments and other documents executed by

the administrators with a Notary Public in Malta

when necessary to comply with the legal

obligations of the organisation in Malta

Provided that if the administrators appoint another

person or persons to carry out the acts stated in paragraphs

(a) and (b), the local representative shall only act in

consultation with such persons when such person or

persons are not in Malta or if they fail to carry out any such

function when required to do so within the times stated in

this Schedule.

For the purpose of this sub-article, residence shall

be established by documentary evidence."; and

(d) immediately after sub-article (6) thereof there shall

be added the following new sub-article

"(7) The provisions of this Schedule regulating the

registration and filing of documents and notes of

registration in the Register of Legal Persons shall apply to

the registration and filing of acts by all registered legal

organisations governed by this Schedule and the provisions

of any other law regulating the filing and registration of

documents in a public registry shall not apply except

where expressly stated.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 52 Amendment of article 13 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 13 of the Second Schedule shall be amended as

(a)

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

established, which purposes shall be construed restrictively."

there shall be substituted the words "has been established.";

(b)

sub-article (4) thereof shall be amended as follows

(i) immediately after the words "although they

are not registered" there shall be added the words "with the

Registrar for Legal Persons";

(ii) in paragraph (b) thereof, the word "and" shall

be deleted;

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

the following

"(c) foreign

and

international

organisations not obliged to register in Malta;

and

(d) pious

foundations,

marriage

legacies and ecclesiastical entities, each of

which shall be regulated and governed by the

law applicable to their particular form or

purpose or category and, except as herein

provided, shall not be subject to the

provisions of this Schedule.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 53 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 14 of the Second Schedule shall be amended as Amendment of

article 14 of the

Second

Schedule.

(a)

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

following

"(1) Saving as otherwise stated in this Schedule,

unregistered organisations are not legal persons but,

pursuant to this Sub-Title, they enjoy recognition, as a

matter of fact, and legal powers to achieve the stated

purposes for which they are constituted.";

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

require, strictly for the achievement of the express purposes of

the organisation" there shall be substituted the words "it may

require for the achievement of the express purposes of the

organisation and all ancillary matters";

(c)

sub-article (5) thereof shall be substituted by the

following

"(5) An unregistered organisation may establish

other organisations provided the other organisations are

registered."; and

(d)

sub-article (6) thereof shall be deleted.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 54 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Sub-articles (3) and (4) of article 15 of the Second Amendment of

article 15 of the

Schedule shall be substituted by the following

Second

Schedule.

"(3) Any property acquired by any means by an

unregistered organisation shall be considered to be held by or

for the following interests as the case may be where it is

established

(a) as a private benefit organisation, unless

otherwise stated in its statute or in any written instrument

signed by the promoters and authenticated by a Notary

Public, such property shall be considered to be held for the

promoter in ownership or the promoters in co-ownership

according to the proportion of their contribution to the

unregistered organisation;

(b) partly for a private benefit and partly for a

social or other public purpose, unless otherwise stated in

its statute or in any written instrument signed by the

promoters and authenticated by a Notary Public, such

property shall be considered to be held in ownership for

the private benefit subject to the performance, by the

promoters or administrators, as fiduciaries, of the social or

other public purpose, until the said purpose is achieved,

exhausted or becomes impossible or is otherwise addressed

by the appropriation or endowment of a sufficient part of

the property to a registered public benefit organisation

with a similar purpose;

(c) solely for a social or other public purpose, or

in the case of religious organisations and marriage legacies

and public organisations in the form of foundations,

religious or public purposes respectively, such property

shall be held by the promoters or administrators as

fiduciaries only for the purpose stated in the statute or any

special law which may be applicable to it.

(4)

On dissolution of an unregistered organisation

which is

(a) established as a public benefit organisation,

the property of the organisation must be applied in

accordance with article 32;

(b) established as a private benefit organisation,

the property shall be distributed in accordance with the

express terms of the statute, failing of which, to the

promoters or their heirs

Provided that any person with a co-ownership right

in property of an unregistered organisation may only

demand the division of such patrimony and any promoter

or administrator may only dissolve the organisation and, or

withdraw his contribution from an unregistered

organisation when all obligations towards third parties

have been performed and, or its purposes have been

achieved, exhausted or become impossible.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 55 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 16 of the Second Schedule shall be amended as Amendment of

article 16 of the

Second

Schedule.

(a)

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

following

"(1) The promoters or members of a registered

organisation, or in case of a registered foundation, the

founders, the donors or the beneficiaries shall not be liable

for the obligations of such an organisation, except to the

extent that they expressly agree to be so liable. The

liability of such persons towards third parties for the

obligations of the organisation shall be determined in

accordance with any rules which may be applicable to the

legal form of the organisation in terms of any special law

or, in the absence of any special law, the provisions of this

Schedule.";

(b) in sub-article (2) thereof, immediately after the

words "The promoters and members of a registered

organisation" there shall be added the words "or in the case of a

registered foundation, the founders, the donors or the

beneficiaries,";

(c)

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

founders, promoters, administrators or members" there shall be

substituted the words "declare the founders, promoters,

administrators, beneficiaries or members";

(d) in paragraph (d) of sub-article (4) thereof, for the

word "interest:" there shall be substituted the word "interest;";

and

(e)

immediately after paragraph (d) of sub-article (4)

thereof there shall be added the following new paragraph

"(e) to the Registrar for the payment of any fees

which may be due by the organisation upon failure by the

organisation to pay the same within three months of the

date on which they are due:".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 56 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 17 of the Second Schedule shall be amended as Amendment of

article 17 of the

Second

Schedule.

(a)

sub-article (3) thereof shall be deleted;

(b) sub-articles (1) and (2) thereof shall be re-numbered

as sub-articles (2) and (3) respectively;

(c)

immediately before sub-article (2) thereof, as re-

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

"(1) Any member, donor, or beneficiary involved

in any unregistered public benefit organisation, shall not be

liable for the obligations of such organisation except as

follows

(a) he shall be liable to the extent that he

expressly agrees to be so liable in the statute or any

other document signed by him;

(b) he shall be liable for the obligations of

the organisation if these were entered into by him

in the name of the organisation in favour of third

parties at a time when he knew or ought to have

known that there was no reasonable prospect that

the organisation would avoid being wound up due

to insolvency; and

(c) he shall be liable if he is guilty of fraud

or bad faith in entering into any obligations on

behalf of the organisation.";

(d) sub-article (4) thereof shall be re-numbered as sub-

article (6); and

(e)

immediately after sub-article (3) thereof, as re-

numbered, there shall be added the following new sub-articles

"(4) The liability of members and administrators

of an unregistered organisation having a particular legal

form, towards third parties, for the obligations of the

unregistered organisation shall be determined in

accordance with any rules which may be applicable to the

legal form of the organisation under any special law or, in

the absence of any special law, the provisions of this

article.

(5) Any provision in the statute of an

unregistered organisation or any agreement with the

unregistered organisation exonerating an administrator

from liability for wilful misconduct, gross negligence or

breach of duty shall be null and void.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 57 Amendment of article 19 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 19 of the Second Schedule shall be amended as

(a)

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

mutatis mutandis apply to unregistered organisation" there shall

be substituted the words "shall mutatis mutandis apply to an

unregistered organisation"; and

(b) sub-article (8) thereof shall be substituted by the

following

"(8) Notwithstanding the provisions of article 2,

the liability of all foreign and international public benefit

organisations which -

(a) operate in Malta, including if they raise

funds in Malta; or

(b) provide services available to the public

within Malta,

as well as that of their administrators, shall also be subject

to the provisions of this Schedule in so far as their activity

in Malta is concerned, subject however to any provisions

of any special law applicable to them.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 58 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 20 of the Second Schedule shall be amended as Amendment of

article 20 of the

Second

Schedule.

(a)

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

substituted by the following

"(b) subsequently by a resolution of the

administrators pursuant to a power vested in them by the

statute and in either case shall be established

(i) by reference to shares, interests or other

rights of the members or beneficiaries or by

reference to purposes, or by reference to both such

rights and purposes; or

(ii) for purely administrative purposes

which support the main purposes and operations of

the organisation; and

(iii) with other purposes which shall be

consistent with the main purposes of the

organisation.";

(b)

sub-article (9) thereof shall be deleted;

(c)

sub-articles (10) and (11) thereof shall be re-

numbered as sub-articles (17) and (18) respectively;

(d) sub-articles (3), (4), (5), (6), (7) and (8) thereof shall

be re-numbered as sub-articles (7), (8), (9), (10), (11) and (12)

respectively;

(e)

immediately after sub-article (2) thereof there shall

be added the following new sub-articles

"(3) Segregated cells may be established, except

for those established for purely administrative reasons

(a) in the case of a public benefit

organisation, only to the extent as they are

established for public benefit purposes and, or

public interest beneficiaries; and

(b) in the case of a private benefit

organisation, only to the extent as they are

established for a lawful purposes in terms of the

Voluntary Organisations Act , including

(i) any public benefit purposes or

public interest beneficiaries; or

(ii) any public purposes established

for the carrying out of any of the activities

referred to in article 32A, provided such

activities are carried out solely in order to

attain the principal purpose and objectives of

the organisation.

(4) When the segregated cell is established by the

statute of the organisation, the administrators shall be

presumed to have the power to supplement such statute

with additional guidelines on the purposes and activities of

the cell in a manner which supports the purposes and

objects of the organisation.

(5) Segregated cells shall, after establishment, be

regulated either in the statute of the organisation and, or in

a cell statute. A cell statute shall be consistent with the

statute of the organisation. The statute of the organisation

shall apply on any issue which is not addressed in the cell

statute and shall prevail over the cell statute in case of

inconsistency.

(6)

A cell statute shall

(a)

state the following matters

(i)

the name of the cell;

(ii)

the purposes or objects of the

cell;

(iii) the manner in which the

administrators shall manage its affairs,

directly or through an administrative

committee, which shall in any case not have

legal representation of the cell;

(b) be in the form of a resolution or

guideline of the administrators;

(c) in case of a cell for beneficiaries, either

state the names of the beneficiaries or the class of

beneficiaries or, in the absence of such indication, a

declaration that the cell is constituted for the

benefit of beneficiaries. In the latter case the

beneficiaries shall be indicated in a written

instrument, which need not form part of the cell

statute, called a "cell beneficiary statement" and

which shall be signed by the administrators in the

presence of a notary public, and all provisions in

the Schedule relating to beneficiary statements

shall apply mutatis mutandis to cell beneficiary

statements; and

(d)

comply with the requirements of this

article.";

(f)

sub-article (7) thereof, as re-numbered, shall be

substituted by the following

"(7) A segregated cell shall have its own distinct

name or designation and it shall refer to the organisation of

which it forms part in all its dealings, but shall not be a

legal person nor shall it be eligible for registration as a

legal person. A cell may not change its name or

designation under any circumstances.";

(g) in paragraph (a) of sub-article (8) thereof, as re-

numbered, the words "for the achievement of one or more

defined purposes which are consistent with the main purposes

of the organisation" shall be deleted;

(h) in sub-article (11) thereof, as re-numbered, for the

words "The legal effects stated in sub-article (6) shall arise only

if-" there shall be substituted the words "The legal effects stated

in sub-article (10) shall arise only if -";

(i)

immediately after sub-article (12) thereof, as re-

numbered, there shall be added the following new sub-articles

"(13) The rules, including without limitation the

rules applicable to dissolution and winding up, applicable

to the legal form of an organisation within which a cell is

established shall apply mutatis mutandis to the cell as

though the cell were itself a registered organisation of the

same legal form with such modifications as are necessary

to accommodate the fact that the cell is not a legal person.

(14) The winding up of a cell, whether voluntarily

or due to its inability to perform its obligations shall not

affect the continuing operation of the organisation which

established it or other cells in any manner whatsoever and

the appointment of a liquidator for a cell shall not affect

the powers of the administrators in relation to the

organisation or any other cells. Where a cell is being

wound up and a liquidator is appointed, the powers of the

administrators of the organisation shall cease and shall vest

in the liquidator, solely in respect of that cell.

(15) Any winding up proceedings in relation to an

organisation within which cells are established shall

respect the legal status of each cell as a patrimony separate

from the assets and liabilities of the organisation and other

cells of the organisation and from the assets and liabilities

of the organisation not attributable to any cell.

(16) A cell shall be administered by the

administrators of the organisation who may, if authorised

by the statute, establish an administrative committee with

reference to one or more cells, and the administrators may

delegate any of their powers to such administrative

committee or committees as the case may be. Such

delegation shall

(a) not in any way restrict the powers of the

administrators of the organisation in relation to the

cell; and

(b) not include the legal and judicial

representation in relation to the assets and

liabilities of the cell.";

(j)

in sub-article (18) thereof, as re-numbered, for the

words "or incidental thereto, including on the dissolution of

cells and on the transfer of assets of a cell to another

organisation, with or without segregated cells, and the legal

effect of such transfer." there shall be substituted the following

", including

(a) any formalities which shall be necessary for a

cell to be created by the appropriation of assets already

belonging to the organisation to the cell;

(b)

the dissolution of cells;

(c) the transfer of assets of a cell to another

organisation, with or without segregated cells;

(d)

the legal effects of such transfers; and

(e)

all matters related and incidental thereto.";

and

(k) immediately after sub-article (18) thereof, as re-

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

"(19) The Minister may also make regulations to

regulate the establishment of segregated cells having legal

personality.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 59 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 20 of the Second Schedule, there Addition of new

articles to the

shall be added the following new articles

Second

Schedule.

" Transfer of

20A. (1) It shall be lawful for the cell of

cells.

one organisation, hereinafter referred to as the

"transferring organisation", to be transferred to

another organisation, hereinafter referred to as the

"recipient organisation" where

(a)

the

administrators

of

the

transferring organisation so resolve in writing

pursuant to a power vested in them by the

statute;

(b) the creditors of the cell in the

transferring organisation do not object to this

transfer following public notice of at least

thirty (30) days of the intent to transfer;

(c)

the recipient organisation has the

same legal form and is of the same purpose or

category as that of the transferring

organisation;

(d) the administrators of the recipient

organisation resolve in writing to accept such

cell pursuant to a power vested in them by the

statute;

(e)

a notice relating to the transfer of

the cell is delivered to the Registrar by the

administrators of the recipient organisation

and the Registrar shall

(i) record the notice of

transfer of the cell in the records of the

transferring organisation; and

(ii) issue a new certificate

relating to the transfer of such cell and

record such transfer in the records of the

recipient organisation; and

(f)

it is required, under a special law,

to obtain the approval or consent of any

regulatory or governmental authority for such

action, that such consent or approval is

obtained.

(2) The assets and liabilities of a cell shall

constitute a distinct patrimony which shall be

distinct from all other assets and liabilities of the

recipient organisation or other cells of such

organisation, if any.

(3) The transfer of a cell shall not entitle the

creditors of the recipient organisation to have

recourse to the assets of the transferred cell or of

the transferring organisation.

(4) All rights and obligations of the

organisation and any third parties shall cease to be

those of the transferring organisation with respect

to the cell and shall continue unaffected as rights

and obligations of the recipient organisation with

respect to the cell by operation of law with effect

from the date of notification to the Registrar in

terms of sub-article (1)(e), notwithstanding the

absence of any agreements or consents that would

otherwise be necessary for the transfer to be

effective in law for those purposes.

(5) Upon the completion of the transfer, the

administrators of the recipient organisation shall

notify in writing all interested parties of which they

are aware regarding the transfer of such cell from

the transferring organisation to the recipient

organisation providing details of its name and

purpose and other material information.

(6) When a cell is transferred it shall retain

its name or designation notwithstanding the

transfer of the cell in accordance with this article

but the administrators of the recipient organisation

may enter into a unilateral declaration by public

deed and register this event in the applicable public

register.

(7) The transfer of a cell as contemplated in

this article shall constitute a change in fiduciary

and shall be governed by the provisions of article

1124C(4) of the Code regulating the succession of

fiduciary obligations.

20B. (1) It shall be lawful for a cell of an

organisation to be constituted as a new

organisation, with all the assets and liabilities of

the cell becoming the patrimony of the new

organisation or a part thereof.

(2) The name of the new organisation shall

reflect the name or designation of the cell as

closely as possible to comply with the applicable

law in this regard.

(3) Such action may be taken under such

conditions as may be applicable by the

administrators of the existing organisation by

means of a resolution of the board of

administrators only if the statute of the

organisation provides for such power.

(4) The cell shall be constituted as a new

organisation upon the observance by the

administrators of the requirements applicable to the

creation of a new organisation of the same legal

form as the organisation in which the cell is

currently established, including its registration

with the Registrar, and if the cell is created with

reference to members, the members shall sign the

statute of the new organisation, and

(a)

the administrators in office shall

be the administrators of the new organisation

unless new administrators are appointed in

the constitutive documents when a cell is

being constituted as a new organisation;

(b) the purposes and beneficiaries, if

any, of the new organisation shall be those of

the cell;

(c)

all rights and obligations of the

organisation and any third parties shall cease

to be those of the organisation with respect to

the cell and shall continue unaffected as

rights and obligations of the new organisation

by operation of law with effect from the date

of notification to the Registrar under sub-

article (6) and the registration of the

organisation in terms of sub-article (7)

notwithstanding the absence of any

agreements or consents that would otherwise

be necessary for the transfer to be effective in

law for those purposes; and

(d) the constitution of a cell as a new

organisation as contemplated in this article

shall constitute a change in fiduciary and

shall be governed by the provisions of article

1124D of the Code regulating the succession

of fiduciary obligations.

(5) The creditors of the cell being

constituted as a new organisation shall be given the

opportunity to object to such constitution following

public notice of at least thirty (30) days of the

intent to such constitution and this only if the new

legal form which the cell is to take creates

limitations on the liabilities of the organisation or

its administrators or members which reduce the

rights of the creditors when compared to those

prevailing with reference to the cell.

(6) The administrators shall be bound to

notify the Registrar by means of the prescribed

form when a cell no longer forms part of an

organisation under this article and shall surrender

any certificate issued by the Registrar relating to

the cell.

(7) The Registrar shall register in the

Register the notification of the removal of a cell

from an organisation by the administrators and

shall then, subject to sub-article (8), immediately

proceed to register the new organisation in the

Register. The same shall apply when the cell is

being registered in another register pursuant to a

special law.

(8) When the new organisation takes a legal

form which is governed by a special law which

provides for registration which differs from this

article, the Registrar shall furthermore issue his

confirmation that he has been notified of the

constitution of the cell as a new organisation and

only upon such confirmation shall the new

organisation be registered in the relevant register.

(9) Upon registration, the administrators of

the new organisation shall notify in writing all

interested parties of which they are aware

regarding the constitution of the cell as a new

organisation.

20C. In accordance with the previous

articles, any creditor of a cell may within fifteen

(15) working days of receipt or publication of any

notice issued under the previous articles, by sworn

application in the Court, object to -

(a)

the transfer of a cell from the

transferring organisation to the recipient

organisation; or

(b) the constitution of a cell into a

new organisation,

and, upon good cause being shown that such

transfer should not take effect, the Court shall

either accede to the creditor’s demand, authorise

the aforementioned transfer or constitution on

sufficient security being given or give such other

orders as it deems appropriate.

20D. The Minister may make regulations to

regulate the transfer of cells from one organisation

to another or the constitution of a cell as a new

organisation, to establish forms and notifications,

to establish rules for the protection of third parties

and generally for the better implementation of the

preceding provisions.

20E. For the purposes of the notifications

contemplated by article 20A and 20B it shall be

sufficient if the administrators publish the relative

notices as follows

(a)

if the organisation has creditors in

Malta, in two daily newspapers published in

Malta, one in Maltese and one in English; or

(b) in the case of an organisation

which does not have its principal creditors in

Malta,

in

two

general

distribution

newspapers, one published in Malta in the

English language and one published in the

country where the principal creditors of the

organisation carry out business in the

language of the place of business.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 60 Amendment of article 21 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after sub-article (5) of article 21 of the

Second Schedule there shall be added the following new sub-article

"(6) It shall also be lawful to convert a legal organisation

registered in the Register of Legal Persons into a cell of another

multi-cell organisation and this following the procedures which

may be laid down in regulations made by the Minister

responsible for justice in terms of this article.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 61 Amendment of article 22 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 22 of the Second Schedule shall be amended as

(a)

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

provisions of the Companies Act" there shall be substituted the

words "the provisions of Title II of Part VIII of the Companies

(b) sub-article (2) thereof shall be re-numbered as sub-

article (4); and

(c)

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

be added the following new sub-articles

"(2) For the purposes of the application,

mutatis mutandis, of the provisions of article 345

of the Companies Act to the amalgamation of two

or more associations at least one of which is

registered, any extraordinary resolution that may

be required in terms of the Companies Act, shall

be an extraordinary resolution taken and passed

by the general meeting of an association in

accordance with provisions regulating the taking

and passing of extraordinary resolutions as found

in the statute or constitutive instrument of the said

association, and the provisions of article 135(1)

and (3) of the Companies Act shall not apply

Provided that if the statute or constitutive

instrument of the association does not contain any

provisions regulating the manner in which

extraordinary resolutions are to be taken and

passed, the provisions of article 135(3) of the

Companies Act shall regulate the taking and, or

passing of such an extraordinary resolution,

mutatis mutandis.

(3) Article 348 of the Companies Act shall

not apply to the amalgamation of two or more

associations."; and

(d) immediately after sub-article (4) thereof, as re-

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

"(5) Articles 339 and 370 of the Companies

Act regarding the issue and cancellation of

certificates in the context of amalgamations and

divisions shall apply mutatis mutandis.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 62 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 22 of the Second Schedule there Addition of new

article to the

Second

Schedule.

shall be added the following new article

" Continua-

22A. (1) An organisation formed and

tion in Malta

incorporated or registered under the laws of a

of a foreign

state within the European Union or the European

organisation.

Economic Area other than Malta which is similar

in nature to an organisation -

(a)

governed by this Schedule; or

(b) governed by any special law

which does not, itself or by virtue of

regulations, provide for continuation,

may, if it is authorised to do so by its constitutive

instrument or statute, or by the applicable law in

its state of registration, request the Registrar to be

registered as being continued in Malta.

This article shall also apply in the case of

such an organisation incorporated or registered

under the law of any other country or jurisdiction

which is approved by notice as may be issued and

reviewed, from time to time, by the Minister

responsible for justice.

(2) When registered in Malta, the foreign

organisation shall be registered in the same legal

form which it has under the law of the foreign

country or jurisdiction. In the event that a similar

form does not exist under the laws of Malta, the

applicant shall select a form as similar as possible

to the one being continued in Malta and shall

designate the form selected.

(3) Where the continuation in Malta of

foreign organisations taking a particular form is

regulated by a special law, the provisions of this

article shall not apply.

(4) The continuation in Malta of a foreign

organisation shall require

(a)

the adoption of Maltese law to

govern the statute from the time of

registration under this Schedule; and

(b) the compliance with

(i) all matters required for

the relevant legal form of organisation

to be established and registered under

this Schedule;

(ii) all matters required under

any other applicable law relating to its

activities or its administrators;

(iii) any other procedures or

formalities which may be stated in the

statute of the organisation

Provided that if the statute does

not address the subject or vest powers

relating to continuation in any person

or body, it shall be presumed that

compliance shall be with a resolution

of the board of administrators or

equivalent or if the organisation is an

association of persons, a resolution of

the members having the support

required under the statute or, if silent,

with applicable law for decisions on

matters considered to be extraordinary

or special; and

(iv) any requirements which

may be prescribed from time to time.

(5) The Registrar may request such

undertakings, activities, documentation and other

information from the applicant to satisfy himself

of compliance with the provisions of this article

and the laws of the relevant foreign country and

may impose such conditions as appears

appropriate to him for the publicity of such

procedure in Malta and any other relevant state,

for the avoidance of fraud or abuse and for the

protection of beneficiaries, members or creditors

of the organisation.

(6) An organisation registered under this

Schedule may continue in any state within the

European Union or the European Economic Area

when it is authorised to do so by its constitutive

instrument or statute. In such case, and after the

relevant procedures are followed, the Registrar

shall proceed to terminate the registration of such

organisation under this Schedule on such basis.

(7) The registration fees set out in the

Civil Code (Second Schedule) (Fees) Regulations

relating to the registration of an organisation shall

apply mutatis mutandis to foreign organisations

requesting to be registered as being continued in

Malta.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 63 Substitution of article 23 of the the following: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 23 of the Second Schedule shall be substituted by

23. (1) Except where an organisation is

"Registration

established as a foundation or an association,

organisations.

public organisations may not be registered under

the provisions of this Schedule. The Minister

responsible for Justice may, by regulation, permit

or require such registration. The registration of

public organisations or classes of public

organisations shall thereafter be made in terms of

this Schedule and in accordance with such

conditions as the Minister may prescribe.

(2) The Minister responsible for justice

may by regulation expressly prescribe which

provisions of this Schedule shall apply to public

organisations, generally or where they take a

particular legal form, specifically to such form,

and to their administrators, and may also

determine or modify the mode of application of

any of the said provisions in such regulation.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 64 Amendment of article 24 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 24 of the Second Schedule shall be amended as

(a)

the current article shall be re-numbered as sub-

article (1) of the said article;

(b) sub-article (1) thereof, as re-numbered, shall be

amended as follows

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

the following

"(c) establish the forms and fees for the

registration of any organisation, the certificates of

registration and to establish the powers of the

Registrar in relation to registration and all related

matters;";

(ii) paragraph (e) thereof shall be substituted by

the following

"(e) regulate foreign or international

organisations carrying out activities in Malta and

the forms and content for registration and the terms

and conditions of registration including the

principles applicable to the determination of the

proper law applicable to the constitutive instrument

and, or the statute of such organisation and the

implementation of provisions of any private

international law treaty or any European Union law

on such matters;";

(iii) paragraph (m) thereof shall be deleted;

(iv) paragraphs (n), (o) and (p) thereof shall be re-

numbered as paragraphs (m), (n) and (o) respectively, and

shall be substituted by the following

"(m) regulate the conversion of an

organisation having one legal form into that having

another legal form;

(n) lay down rules on the powers of the

Court in relation to the interpretation or variation

of a statute and the administration of an

organisation;

(o) lay down rules for the better carrying

out of any of the provisions of this Schedule;"; and

(v) immediately after paragraph (o) thereof, as

re-numbered, there shall be added the following new

paragraphs

"(p) regulate the procedure for registration

of public organisations, including the forms and

content for registration, the terms and conditions

for registration, and to establish the powers of the

Registrar in relation to the registration of such

organisations and all related matters;

(q) establish

any

requirements

for

notifications to be made to the Registrar by any

legal organisation for the purposes of this

Schedule;

(r) further regulate the segregated cells of

organisations, whether such cells are incorporated

as legal persons or otherwise;

(s) regulate the accessibility or otherwise

of the register of members of associations;

(t) regulate the procedure for the

continuation of organisations, whether under the

laws of Malta or the laws of another country,

including the forms needed for such continuation,

the terms and conditions for continuation, and to

establish the powers of the Registrar in relation to

the continuation of organisations;

(u) provide for any matter incidental to or

connected with any of the above; and

(v) lay down rules for the better carrying

out of any of the provisions of this Schedule."; and

(c)

immediately after sub-article (1) thereof, as re-

numbered, there shall be added the following new sub-articles

"(2) The Minister responsible for justice may, with

the concurrence of the relevant minister empowered to

make regulations under any other special law, make

regulations in accordance with the provisions of this

Schedule to regulate

(a) the applicability to forms of legal

organisations or particular types thereof, or in

relation to particular sectors of activity carried out

by such legal organisations, established under such

special law;

(b) the mode of their applicability to such

forms of legal organisations; and

(c) all related and ancillary matters,

including the powers of the relevant registrar, any

requirements for notification to such registrar or

for registration in the relevant registry, applicable

fees, forms, or otherwise.

(3) The Minister may, by means of regulations,

amend any annexes to this Second Schedule to the Civil

Code.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 65 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

In paragraph (a) of article 25 of the Second Schedule, for Amendment of

the words "provisions of this Schedule" there shall be substituted the article

Second

words "provisions of this Schedule and any regulations made Schedule.

thereunder".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 66 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 26 of the Second Schedule shall be amended as Amendment of

article 26 of the

Second

Schedule.

(a)

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

following

"(1) A foundation is an organisation consisting of

a universality of things constituted in writing, including by

means of a will, by a founder or founders whereby assets

are destined either -

(a) for the fulfilment of a specified purpose;

and, or

(b) for the benefit of a named person or class

of persons,

and which are entrusted to the administration of a

designated person or persons.

The patrimony, namely assets and liabilities, of the

foundation is distinct from that of its founder,

administrators or any beneficiaries. The fiduciary

obligations in 1124A of this Code shall be binding upon

the foundation and all persons administering it towards any

beneficiaries for the fulfilment of the stated purposes of the

foundation

Provided that the fiduciary obligations shall be

subject to such restrictions or modifications as may be

stated in the statute or the terms of engagement of the

administrators, as the case may be.";

(b) sub-article (5) thereof shall be deleted and sub-

articles (6) and (7) shall be re-numbered as sub-articles (5) and

(6) respectively;

(c)

sub-article (6) thereof, as re-numbered, shall be

substituted by the following

"(6) Foundations may be established in one or two

legal forms being either for the benefit of beneficiaries

(called "beneficiary foundations") or for the fulfilment of a

specified purpose without beneficiaries (called "purpose

foundations"). Whatever legal form they take, foundations

may have any of the purposes stated in article 1.";

(d) sub-article (7) thereof shall be re-numbered as sub-

article (12); and

(e)

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

numbered, there shall be added the following new sub-articles

"(7) In this Schedule

(a) any reference to "pious foundation"

includes

(i) an autonomous pious foundation,

that is, an aggregate of things destined for

pious or religious purposes and established as

juridical persons by the competent

ecclesiastical or other religious authorities;

(ii) non-autonomous

pious

foundations, that is, temporal goods given in

any way to a public juridical person

established by the competent ecclesiastical or

other religious authorities and carrying with

them a long-term obligation, such period to

be determined by applicable religious or

national law, and where a long-term

obligation consists of binding the juridical

person, from the annual income, to celebrate

Masses or other religious ceremonies, to

perform other determined ecclesiastical

functions, or in some other way to fulfil the

pious or religious purposes as defined by the

applicable religious laws or rules; and

(iii) "pious or religious purposes" are

understood to be those which concern acts of

piety, of the apostolate, or of charity, whether

spiritual or temporal and include similar

organisations of any religious denomination;

(b) any reference to "ecclesiastical entity"

shall be a reference to an association of persons or

a universality of things which are established by

the competent ecclesiastical or other religious

authority so that they might, in the name of such

authority and in accordance with the provisions of

the relevant law, fulfil the specific task entrusted to

them in view of the public good, including the

imparting of religious teaching, the promoting of

public worship and the undertaking of projects

which are appropriate to their character and

governed by their statutes, under the higher

direction of the said authority. Such entities include

dioceses, parishes and all institutes of consecrated

life and societies of apostolic life, and include

similar

organisations

of

any

religious

denomination.

(8) With effect from the relevant date, it shall not

be lawful to establish a foundation other than by public

deed or by will for marriage legacies or ecclesiastical

entities.

(9) The appropriation of assets to a purpose or for

the benefit of beneficiaries written in the form indicating

an intent to establish a foundation but which is not made

by a public deed of foundation or by will, shall be

regulated by the provisions relating to unregistered

organisations. In such cases, the persons who may be

acting as administrators or fiduciaries shall be deemed to

have the power to constitute such appropriation of assets

into a foundation in accordance with this Schedule and to

register the same.

(10) Until such time as it is registered, it shall not

be lawful for such an organisation to use the word

"foundation" in its name and the Registrar may, upon being

notified thereof or upon becoming otherwise aware of such

circumstances, by notice in writing demand the removal of

such word from the name.

(11) It shall be presumed that a mandate regulated

by Title XVIII of this Code or a deposit regulated by Title

XIX of this Code, has been established, where a written

instrument is executed vesting a person with the ownership

or possession of property for the fulfilment of a specified

purpose or for the benefit of beneficiaries, unless there is

clear evidence of an intent to create a foundation as stated

in sub-article (9) and to appoint the recipient as an

administrator, or a trust and to make the recipient a

trustee.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 67 Amendment of article 27 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

In sub-article (1) of article 27 of the Second Schedule, for

the words "or any beneficiaries." there shall be substituted the words

"or any beneficiaries:" and immediately thereafter there shall be

added the following new proviso

"Provided that an association which is not established as a

public benefit organisation may be established between two

persons.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 68 Substitution of article 28 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 28 of the Second Schedule shall be substituted by

the following

"28. Religious organisations constituted as foundations

or associations and established for purposes as defined in

applicable religious laws shall not be subject to or in any

manner regulated by this Schedule and shall be regulated by the

relative religious laws. In the event that they are registered as

foundations or associations under this Schedule they shall also

be regulated by the provisions of this Schedule from such date

and in case of inconsistency the provisions of this Schedule

shall prevail.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 69 Amendment of article 29 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 29 of the Second Schedule shall be amended as

(a)

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

following

"(2) The deed of foundation shall contain, on pain

of nullity, an endowment of money or property worth at

least one thousand and one hundred and sixty-four euro

and sixty-nine cents (€1,164.69) except in the case of a

public benefit foundation in which case the endowment

shall be of at least two hundred and thirty-two euro and

ninety four cents (€232.94).";

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

words "When the property endowed is not cash or" there shall

be added the word "any";

(c)

sub-article (4) thereof shall be amended as follows

(i) for the words "shall, on pain of nullity, state

the following:" there shall be substituted the words "shall

state the following:";

(ii) in paragraph (c) thereof, immediately after

the words "the purposes or objects" there shall be added

the following

"and in those cases where the foundation falls

within the following specific categories

(i)

the foundation is a public benefit

foundation as defined in article 1(4); or

(ii) the foundation is a private

foundation as defined in article 31B,

an indication of the category of the foundation in

the statute;";

(iii) paragraph (e) thereof shall be substituted by

the following

"(e) (i) the composition of the board of

administration

and

the

name,

surname,

identification, passport or registration number, as

applicable, nationality and residential address of

the administrators, if any, or when there are no

administrators at the time of establishment or

registration, the person who has the power to

appoint the administrators;

(ii) the manner in which administrators

are appointed and removed from office and the

duration of their appointment, if any

Provided that if the duration of the

appointment of the administrators is not stated in

the deed of foundation, administrators shall be

deemed to have been appointed indefinitely until

they retire or are removed.";

(iv) paragraph (f) thereof shall be deleted;

(v) paragraphs (g), (h) and (i) thereof shall be re-

numbered as paragraphs (f), (g) and (h) respectively;

(vi) paragraph (f) thereof, as re-numbered, shall

be substituted by the following

"(f) the term for which it is established, if

any and if not stated it shall be presumed to be

established for an indefinite term except in a

beneficiary foundation in which case the provisions

of articles 29(7) and 33 shall apply;";

(vii) in paragraph (g), as re-numbered, for the

words "the name and address of a person resident in Malta"

there shall be substituted the words "the name and address

of a person ordinarily resident in Malta";

(viii) paragraph (h) thereof, as re-numbered, shall

be substituted by the following

"(h) in the case of a beneficiary foundation,

either the names of beneficiaries, or, in the absence

of such indication, a declaration that the foundation

is constituted for the benefit of beneficiaries. Such

beneficiaries may be indicated in a written

instrument, which need not form part of the public

deed, called the "beneficiary statement", signed by

the founder and addressed to the administrators,

and the same shall be signed in the presence of a

Notary Public. The use of a beneficiary statement

shall not be permitted in the case of a beneficiary

foundation, or a cell of such a foundation, when it

is established exclusively for the benefit of public

interest beneficiaries."; and

(ix) immediately after paragraph (h) thereof, as

re-numbered, there shall be added the following new

paragraphs

"(i) where there exist more than one board

or committee in virtue of the deed of foundation,

the deed of foundation shall specify which board or

committee shall be the board of administration;

(j)

when the category of any foundation is

for the public benefit, this shall be stated expressly

through the use of the words "public benefit",

"social purpose" or "public purpose" in the

constitutive instrument and in the statute of the

foundation.";

(d)

sub-article (5) thereof shall be amended as follows

(i) immediately after the words "any person

subscribing to the statute after a foundation is established"

there shall be added the words "by means of a public deed

or in such other manner provided for in the statute"; and

(ii) for the words "In the event that more than

three founders wish to establish a foundation, a statement

may be made of this fact in the statute and the signature of

three founders on behalf of all founding members stated in

a schedule to the statute shall be sufficient to indicate the

consent of all stated founders." there shall be substituted

the following

"Where a foundation is being established as a

public benefit foundation involving more than

three persons as promoters, the signature of three

persons shall be sufficient to indicate the consent

of all founders at the time of establishment. A

document containing a list of all founders shall be

sufficient evidence of their consent. The Notary

Public shall not be bound to ascertain that the three

persons have been authorised by the founders to

appear on the deed but shall rely on the document

submitted to him by the three persons containing a

list of all founders as evidence of their consent.

Notwithstanding the provisions of any other law, in

respect of the persons listed in the document

containing the list of all founders, their name,

surname and identity card, passport number or

registration number, as applicable, shall suffice

Provided that the Notary Public who receives

any deed to which this sub-article refers shall

record in the deed a declaration by the three

persons that they are authorised by the founders to

state their names, surnames and identity card,

passport number or registration number, as

applicable, in the document above referred to and

the said Notary Public shall warn the said three

persons of the importance of the truthfulness of

such declaration. The document shall be attached

to the public deed establishing the foundation

Provided further that any person named as a

founder in a document as referred to above who

claims that he did not authorise the three persons to

include his name and surname and identity card,

passport number or registration number, as

applicable, in the document shall, within sixty (60)

days of his becoming aware of his inclusion in the

document, be entitled to register a declaration to

that effect in the Register of the foundation and in

the absence of any written evidence to the contrary

which may be produced in case of dispute on such

matter, he shall not be considered ever to have been

a founder.";

(e)

sub-article (6) thereof shall be substituted by the

following

"(6) When administrators are designated in the

statute, unless they consent on the said statute itself, the

written consent of the administrators must be delivered to

the Registrar prior to registration of any foundation. When

the administrators are not designated in the statute, their

written consent must be submitted to the Registrar on the

notification of their appointment.";

(f)

sub-article (7) thereof shall be substituted by the

following

"(7) (a) It shall not be lawful to state a term for a

foundation in excess of one hundred and twenty-five (125)

years except in the following cases in which a foundation

may have an unlimited duration

(i)

public benefit foundations; or

(ii) foundations governed by article 31B(4),

(5) and (6).

(b) When no term is specified in the deed of

a foundation, a foundation shall be considered to be valid

for one hundred and twenty five (125) years from its

establishment except in the cases referred to in paragraph

(a).

(c) Saving as otherwise provided, in the

event that a longer term is stated in a deed of a beneficiary

foundation, it shall terminate on the hundred and twenty

fifth anniversary from when it came into existence. The

limitation on duration also applies in the case where a

foundation results from the conversion of another

registered organisation or of a trust in accordance with this

Schedule and any regulations or from the transfer of a

patrimony by a foundation to another foundation or trust.

In such a case periods of existence shall be considered

cumulative.";

(g) paragraph (b) of sub-article (11) thereof shall be

substituted by the following

"(b) The administrators of a foundation may not

renounce to a benefit to the foundation under a will

pursuant to a disposition in its favour except with the prior

consent of the beneficiaries or in the case of a purpose

foundation, the Court

Provided that nothing in this sub-article shall

oblige any administrator to accept a benefit under a will or

an endowment if such administrator has reason to suspect

that the same consists of assets derived from any criminal

offence or involves money laundering or the funding of

terrorism

Provided further that if the administrator is not

willing to accept to act as an administrator or to continue in

such office, the provisions of article 35 shall apply."; and

(h) immediately after sub-article (12) thereof there shall

be added the following new sub-articles

"(13) The Registrar shall register an existing

foundation without its name being changed even if this is

not in conformity with the requirements of sub-article

(4)(a) or any other article imposing rules on the names of

organisations.

(14) The Minister responsible for justice may

make regulations permitting foundations to use alternative

words instead of the word "foundation" in their name.

(15) The provisions of this article shall apply

mutatis mutandis in the case of foundations governed by

any directive or regulation of the European Parliament and

the Council regulating the establishment and operation of

foundations as may be in force at any time.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 70 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 29 of the Second Schedule there Addition of new

articles to the

shall be added the following new articles

Second

Schedule.

" Mandatory

29A. (1) Subject to the provisions of sub-

rules to

article (2), in the case of a foundation governed

prevail.

by Maltese law, where the laws of Malta contain

provisions with regard to the following matters -

(a)

the protection of minors or

incapable parties;

(b) the personal and proprietary

effects of marriage;

(c)

succession

rights,

whether

testate or intestate, especially the

indefeasible shares of spouses, ascendants

and descendants,

hereinafter referred to as "rules of mandatory

application" or "mandatory rules" which cannot

be derogated from by a voluntary act, such laws

shall prevail over the terms of the foundation and

related endowments unless otherwise expressly

provided in this Schedule or in applicable law.

(2) To the extent that there exist rules of

mandatory application, the courts shall apply such

mandatory rules subject to the provisions of

article 29B.

(3) When a foundation is governed by

Maltese law and has no connection to Malta by

reason of the domicile of the founder at the time

of the endowment of the property to the

foundation or the situs of the property, when

immovable, any rules of mandatory application

shall not apply in any manner. In such cases no

regard shall be had to

(a)

the domicile, habitual residence,

registration, authorisation or place of

business in Malta of any protector or any

person rendering administration, accounting

or other services to the foundation; or

(b) the fact that the proper law of

the foundation is Maltese law and the place

of registration is Malta; or

(c)

the situs of property in Malta,

when movable; or

(d) the fact that the place of

execution of the deed of foundation, any

documents relating to the foundation or

relating to the foundation property or other

transaction documents is Malta.

(4) In the case of a foreign foundation, the

rules of mandatory application shall only apply to

any relevant endowment to the foundation when

the founder is domiciled in Malta at the time of

creation of the foundation or the making of the

endowment, subject always to the rules stated in

article 29B.

(5) In the case of a foreign foundation,

when the founder of such a foundation is not

domiciled in Malta at the time of the creation of

the foundation or the making of the endowment,

the provisions of this Schedule shall apply only in

so far as they regulate the continuation or

otherwise in Malta of the foundation or the

endowment.

(6) To the extent that there exist rules of

mandatory application in the law applicable in the

circumstances in terms of Maltese private

international law, the courts of Malta may apply

such mandatory rules subject to the provisions of

article 29B.

(7) When a court is requested to recognise

a foreign judgement which enforces any rules of

mandatory application as referred to in sub-article

(6), the court may accede to such request subject

to the provisions of article 29B.

29B. In order to ensure that the provisions

Management

of

of applicable law which cannot be derogated from

inconsistent

provisions.

by voluntary act are applied in a manner which

preserves the endowment to the foundation and its

terms as far as possible, the following rules shall

apply

(a)

the application of the mandatory

rules shall not produce the failure or

invalidity of the endowment or the

foundation, and where possible, the

endowment and the foundation shall

continue under the same terms in relation to

property which is unaffected by such

mandatory laws. Subject to any order of the

court, the affected property shall be held by

the foundation for the founder absolutely, or

if he is dead, for his heirs;

(b) the administrators shall be

empowered to

(i) vary the terms of the

foundation in so far as relates to the

nature or the extent of benefit or the

endowment; or

(ii) do such acts as are

necessary and legally permissible

Provided that the beneficiaries or the

purpose of the foundation derive the

benefits in accordance with the intentions

expressed by the founder in the deed of

foundation in a manner compatible with the

mandatory rules and any property which

becomes free from the terms of the

foundation for any reason shall be held by

the foundation for the founder absolutely, or

if he is dead, for his heirs;

(c)

for the purposes of resolving

conflicts between the endowment and the

foundation and any mandatory rules and to

enable the continuance of the foundation as

specified in paragraphs (a) and (b), the

terms of the foundation or the endowment,

where silent, shall be deemed to include

(i) the power, without any

obligation to do so, of the

administrator to reduce the foundation

assets and return all or part of them to

the founder or the estate of the founder

so as to achieve compliance with such

provisions of law;

(ii) the

power

of

the

administrator to enter into arbitration

and mediation agreements and to reach

a compromise to disputes and claims

by third parties; and

(iii) the power to seek

directions from the Court on such

matters

Provided further that such powers shall

be exercisable notwithstanding any contrary

provisions of the deed of foundation or the

endowment and, provided the administrator

acts honestly, in good faith and reasonably,

such acts shall not constitute a breach of any

fiduciary duties and any applicable law;

(d) the property of the founder

which is not endowed to the foundation

shall first be utilised, to the extent possible,

to meet the claims of any person seeking to

invalidate or reduce an endowment;

(e)

notwithstanding

any

other

applicable law, the foundation may meet a

valid claim being made against the

foundation property, whether voluntarily or

as a result of a court direction, order or

judgement, by a payment of value in money

and shall not be obliged to return property

endowed to the foundation in kind;

(f)

any person who succeeds in

reducing the property of the foundation or

obtains a court order to invalidate an

endowment in whole or in part or who

enjoys the benefits of an arrangement with

the foundation as provided in paragraph

(c)(i), shall forfeit the benefits under the

foundation, unless the terms of the

foundation expressly state otherwise or the

administrators consider it unreasonable in

the circumstances and obtain the consent of

the Court to maintain in force rights in

favour of such person subject to such

conditions as the Court may consider

appropriate;

(g) in

any

event

and

notwithstanding any provision of law, a

foundation shall not be subject to an

obligation to pay or return more than the

foundation property held by it, after

deducting any fees and costs, and shall not

be subject to any obligation for any

distributions made by it, in good faith prior

to having written notice of any claim.

29C. Article 958R of this Code shall apply

Property in

Malta,

to foundations and endowments thereto mutatis

Maltese or

foreign

mutandis.".

foundations,

foreign

domiciliary.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 71 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 30 of the Second Schedule shall be substituted by Substitution of

article 30 of the

the following

Second

Schedule.

" Obligation

30. (1) It shall be the obligation of the

to register.

administrators of any foundation established after

the relevant date, other than pious foundations,

marriage legacies and ecclesiastical entities

constituted as foundations, to register such

foundation in terms of this Schedule within the

periods stated in this Title

Provided that when no administrators are

designated, the foundation shall be registered by

any of the persons mentioned in article 31(2), (3)

and (4) or by the person designated in the statute

as having the power to appoint the administrators.

(2) After a foundation has been established

by public deed in accordance with this Sub-Title

of this Schedule or at any time after the opening

of succession in case of a foundation established

by will, the provisions of article 14 shall apply to

any acts carried out by the administrators on

behalf of a foundation prior to its registration and

in such cases the administrators shall not be

personally liable in accordance with article 17(2)

if

(a)

the

actions

carried

out

implement what is expressly required of

them in the public deed or will; and

(b) the foundation is registered

within the period stated in article 31.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 72 Amendment of article 31 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 31 of the Second Schedule shall be amended as

follows

(a)

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

following

"(1) For the purpose of registration of a

foundation the prescribed application form shall be

submitted to the Registrar together with

(a) in the case of a private foundation as

defined in article 31B

(i) an authentic copy of the

constitutive instrument and the statute

without the beneficiary statement, if any;

(ii) save as otherwise provided in this

Schedule, the prescribed Note of Initial

Registration; and

(iii) the written consent

of

the

administrators, if any; and

(b) in all other cases, an authentic copy of

the constitutive instrument and the statute and the

written consent of the administrators, if any;";

(b) in paragraph (ii) of sub-article (2) thereof, the words

"appointed in the said deed" shall be deleted;

(c)

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

extract is to delivered" there shall be substituted the words "the

said extract is to be delivered";

(d) in sub-article (7) thereof, immediately after the

words "sub-articles (2), (3) and (4)" there shall be added the

words "or by the person designated in the statute as having the

power to appoint the administrators";

(e)

in paragraph (b) of sub-article (8) thereof, for the

words "for such refusal." there shall be substituted the words

"for such refusal:", and immediately thereafter there shall be

added the following new proviso

"Provided that, the fact that the Registrar registers

a foundation in the absence of compliance with any

requirement under any special law, shall not exempt such

foundation or its administrators from their obligation to

comply with such law or to be subject to any penalties or

proceedings which may arise from the breach of such

special law.";

(f)

in sub-article (9) thereof, for the words "private

foundation" there shall be substituted the words "private

foundation as defined in article 31B";

(g)

sub-article (10) thereof shall be amended as follows

(a) immediately after the words "the persons

mentioned in sub-articles (2), (3) and (4)" there shall be

added the words "and the person designated in the statute

as having the power to appoint the administrators";

(b)

in the proviso thereto, for the words "or any

other relevant fact." there shall be substituted the words "or

any other relevant fact:" and immediately thereafter there

shall be added the following new proviso

"Provided further that in case of a public

benefit foundation which is enrolled in accordance

with the Voluntary Organisations Act , the penalty

above referred to shall be reduced to twenty-three

euro (€23)."; and

(h)

sub-articles (12) and (13) thereof shall be deleted.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 73 Addition of new articles to the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 31 of the Second Schedule there

shall be added the following new articles

" Amendments

31A. Any amendments to the statute of a

to statutes and

foundation or changes in a foundation after a

foundation has been registered, shall be registered

in the Register as follows

(a)

notwithstanding what is stated in

the statute, if there is a form which is

prescribed, by the filing of such form and

such amendments or changes shall not

require a public deed or enrolment in the

records of a Notary Public;

(b) notwithstanding the provisions

of any other law, any other amendments or

changes not the subject of notification

through the filing of a prescribed form shall

be made by resolution, private writing or

notarial deed in accordance with the statute

and unless made by a notarial deed, shall be

enrolled in the records of a Notary Public

and shall be registered in the Register by the

Notary Public publishing or enrolling the

deed, as the case may be, within fourteen

days from the date of publication of the

deed or its enrolment in his records, as the

case may be;

(c)

the duty of the administrators

with regards to amendments to the statute,

shall be as prescribed from time to time; and

(d) in the case of a private

foundation as defined in article 31B, if such

amendment affects any matter referred to in

the Note of Initial Registration referred to in

article 31, which is not already otherwise

addressed in a prescribed form filed in terms

of paragraph (a), an Amended Note of

Initial Registration shall also be submitted

to the Registrar.

31B. (1)

Private foundations may carry

Private

foundations

out the trading activities referred to in

and trading

activities.

(a)

this sub-article and sub-articles

(2) and (3); and

(b) sub-articles (4), (5) and (6)

without limitation

Provided that private foundations may also

establish another legal organisation to carry out

acts of trade or trading activities to achieve and

promote their principal purposes and objectives.

They may establish another legal organisation to

carry out any acts of trade which are not related to

their principal purposes and objectives only when

this power is expressly granted in their statute.

For the purpose of this article, a private

foundation means a foundation, which neither

qualifies as a public benefit foundation nor is it

established for a public or social purpose and

which is not a voluntary or non profit organisation

but which can be established for a lawful purpose

as defined in terms of the provisions of the

Voluntary Organisations Act.

(2) Notwithstanding the provisions of sub-

article (1), a private foundation

(a)

may have additional objectives

and powers contained in its statute to enable

it to carry out any such activities referred to

in this article to achieve its purposes or to

protect its assets and, or to otherwise

comply with legal requirements; and

(b) shall, in any case, be deemed to

have all the powers to do anything which is

necessary or ancillary to achieve the said

purposes.

(3) In addition to the activities referred to

in sub-articles (1) and (2), a private foundation

may

(a)

hold assets as an investment

portfolio and to do all such acts ordinarily

carried out in such context;

(b) carry out any specific actions

with shares it may hold as may be

designated in the statute of the foundation

for the achievement of any designated

purpose, transaction or for the protection of

any designated interests;

(c)

own, establish, grant and license

a franchise, a trade mark or other

intellectual property which gives rise to

income;

(d) own income which may be made

payable to voluntary organisations which

own, administer or otherwise operate an

innovative technology arrangement; and

(e) own commercial property or a ship

or aircraft.

(4) For the purposes of sub-article (3)

(a)

a foundation shall act as the

passive owner of such assets, the

administration of which is delegated to a

third party, including another legal

organisation with its own board of directors

or a third party under a fiduciary agreement

or temporary title; and

(b) the carrying out of acts of trade

of any kind by the delegate with assets

belonging to the foundation shall not imply

that the foundation is itself carrying out

such activities.

For the purpose of this sub-article "passive"

shall mean that the foundation is not involved in

the day to day operations of the relevant activity

but shall not imply limitations on the foundation

or its administrators from exercising or protecting

the rights of the foundation in relation to any of

its purposes or assets.

(5) Subject

to

any

authorisations,

registrations or notifications as may be necessary

under applicable laws, a foundation may operate

(a)

as a collective investment

vehicle, and issue units to investors therein,

for the holding of a common pool of assets,

the management of which is delegated to a

third party;

(b) as a pension or employee benefit

arrangement;

(c)

as a securitisation vehicle or for

the purpose of supporting or implementing a

securitisation transaction, including to hold

any assets in connection therewith, borrow

monies against the issue of bonds, establish

security or collateral and do all relative and

ancillary acts;

(d) as a retirement scheme or fund;

(e)

for the holding, administration,

development, or sale of undivided property

originating from an inheritance deriving

from one or more deceased person or

persons common to the beneficiaries for the

sole purpose of the division or liquidation of

the common estate; or

(f)

for any other purpose as may be

prescribed in a notice issued by the Minister

under this Schedule.

(6) A foundation may be used in the

context of the following transactions and any

transactions connected or ancillary thereto

(a)

securities offerings, whether to

the public or for private placement, portfolio

management and custody of investment

instruments;

(b) the grant of real or personal

security interests, including hypothecs,

mortgages,

privileges,

pledges

and

guarantees;

(c)

collective loan agreements and

other multi-creditor banking facilities;

(d) insurance policies and the

payment of proceeds thereunder;

(e)

timeshare and multi-property

structure; and

(f)

such

other

commercial

transactions as may be prescribed in a notice

issued by the Minister under this Schedule.

(7) When a foundation is established with

segregated cells, the foundation may itself render

services against remuneration in favour of any of

its cells which are established for the benefit of

beneficiaries or for purposes or both.

(8) Whenever the activities of a foundation

intended to be carried out under sub-articles (4),

(5) and (6) are subject to laws regulating credit or

financial institutions, insurance undertakings,

investment services or funds, trusts and trustees,

corporate or other licensable fiduciary

institutions, such foundation shall only be

permitted to register with the prior written

consent of the Malta Financial Services

Authority, where applicable in terms of law and

when it is the competent authority under such law,

or may be permitted by such authority to register

but not to carry out activities, until it is authorised

by means of a notice issued by such authority.

(9) Where such activities are exempt from

registration in terms of sub-article (8), the

Registrar for Legal Persons may request

confirmation of such exempt status from the

Malta Financial Services Authority prior to

registering the foundation in terms of the

provisions of this Schedule.

(10) Nothing in this article shall prohibit

foundations regulated by European Union law

from carrying out acts of trade or trading

activities if they are permitted to do so under such

law.

31C. (1) The

following

registration

Accessibility

of registered

documents are accessible to the public, except as

documents and

confidentiality

stated in sub-article (2)

of private

foundations.

(a)

the application form;

(b) any forms notified to the

Registrar under the Civil Code (Second

Schedule) (Notifications and Forms)

Regulations, including the Note of Initial

Registration, as the same may be amended

from time to time, except the following

forms

(i) Form DD relating to

assets added to an organisation by

additional endowments, as the same

may be amended or re-numbered from

time to time;

(ii) such other forms stated in

a notice issued by the Minister;

(c)

the written consent of any

administrator to act as administrator; and

(d) the Certificate of Registration,

as well as any changes made thereto.

(2) Unless the founder has expressly

waived confidentiality under sub-article (3), in

the case of a private foundation, all documents,

statements or declarations submitted to the

Registrar, including those accompanying notified

forms referred to above, shall not be accessible to

third parties without the prior written consent of

the administrators or the supervisory council of

the foundation, if any, duly authenticated by a

Notary Public, or with the permission of the Court

and only when the Court is satisfied that the

person requesting such information has a

legitimate interest therein

Provided that

(a)

nothing in this article shall

render confidential any transactions which

are subject to registration in the Public

Registry according to law;

(b) unless the founder has expressly

waived confidentiality under sub-article (3),

the applicant shall be obliged to submit a

Note of Initial Registration signed by the

administrators, the founder or by the person

designated in the statute as having the

power to appoint the administrators as a

condition to registration and this shall be

accessible to the public; and

(c)

articles 47, 48, 49 and 50 of the

Trusts and Trustees Act shall apply to the

administrators of a private foundation.

(3) The founder may, by means of a

statement in the statute or by a notarially

authenticated notice in writing, filed with the

Registrar, declare that all registration documents

in relation to a private foundation are accessible

to third parties, and the Registrar shall act

accordingly. Such declaration shall be filed in the

Register by the Registrar and shall be accessible

to third parties.

(4) The Registrar shall implement

procedures and take all measures to ensure the

privacy of all documents relating to a private

foundation which are not accessible to the public.

(5) A person dealing with administrators

of a private foundation in relation to foundation

property need not

(a)

enquire into the terms of the

foundation or of any endowment; or

(b) obtain the consent of the

beneficiaries or any other person, and shall,

where he acts in good faith, be entitled to

rely on declarations made by the

administrators with regard to any matters

therein stated.

(6) The administrators may furnish to any

person with whom they are dealing in the interest

of the foundation, a certificate containing the

following information without being in breach of

any confidentiality obligations

(a)

that the foundation exists, is

registered and that the Note of Initial

Registration is complete and factually

correct;

(b) the identity and address of the

current administrators in office;

(c)

that the administrators, or any of

them, are duly authorised and empowered to

carry out the relevant transaction and have

obtained all necessary internal consents, if

any;

(d) the revocability or irrevocability

of the endowments of the foundation and, if

revocable, that the endowments have not

been revoked, or if any have been revoked,

which ones have been revoked since the last

accounts made available; and

(e)

the latest accounts of the

foundation.

(7) When there is more than one

administrator, a certificate may be signed and

authenticated by any administrator.

(8) Without prejudice to any liability

under applicable law or to other fine or penalty

which may be applicable under any other law, any

administrator who issues any certificate

containing any statement which he knows or

ought to know is false shall be guilty of an

offence and shall on conviction be liable to the

punishment of imprisonment for a term not less

than thirteen months and not exceed four years or

to a fine (multa) of not less than one thousand and

one hundred and sixty-four euro and sixty-nine

cents (€1,164.69) but not more than two thousand

and three hundred and twenty-nine euro and

thirty-seven cents (€2,329.37) or to both.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 74 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 32 of the Second Schedule shall be amended as Amendment of

article 32 of the

Second

Schedule.

(a)

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

social purpose" there shall be substituted the words "including a

social or public benefit purpose"; and the words "as provided in

article 26(7)" shall be deleted;

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

following

"(2) The founder may, at any time amend or add to

the deed of a purpose foundation, including its purpose, by

means of an amendment to the statute done in accordance

with the provisions of the statute, if any, and, or any

applicable law. The statute may expressly permit any other

body or person to amend the statute in the manner and

subject to the conditions as may be stated. After the death

of the founder, unless the statute provides for the manner

in which amendments may be made, the Court may

authorise such amendment or addition to the deed of a

purpose foundation, including its purpose, on the

application of

(a)

any administrator;

(b)

the supervisory council;

(c)

any interested party, or

(d)

in the case of a public benefit

foundation, the Attorney General

Provided that a public benefit foundation may not

have its purpose changed or extended to other purposes

which are not also social or public purposes.";

(c)

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

words "is made the administrators may exercise their

discretion." there shall be added the following new paragraph

"A purpose foundation may use money or property

of the foundation to acquire shares or interests in other

organisations when the principal purposes and objectives

of the other organisations are related or ancillary to the

purpose foundation or established to implement the

purposes of the said foundation

Provided that, if an endowment of shares or

interests in an organisation is made to a purpose

foundation to help the foundation and its principal

purposes and objectives, such purposes and objectives of

the organisation need not be related or ancillary to the

purposes of the foundation.";

(d)

sub-article (4) thereof shall be amended as follows

(i) for the words "unless the founder amends the

purpose in terms of sub-article (3)" there shall be

substituted the words "unless the purpose is amended in

terms of sub-article (2), or, if the founder is no longer

alive, the administrators unanimously determine that the

foundation is to be terminated and the proceeds distributed

in accordance with this article"; and

(ii) the words "Any disposal of assets shall be

made only to another purpose foundation with similar

purposes." shall be deleted;

(e)

sub-article (5) thereof shall be re-numbered as sub-

(f)

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

be added the following new sub-articles

"(5) In the case of a purpose foundation

established for a public benefit, the indication of

alternative purposes must refer to other public benefit

organisations.

(6) Any disposal of assets pursuant to the statute

of the foundation shall be made on the following basis

(a) in the case of a purpose foundation

established for a public benefit to another public

benefit organisation having the same or a similar

purpose

Provided that when an organisation is

controlled by the Government, a religious

organisation or a political party then the disposal of

assets may be made in favour of the Government,

another religious organisation of the same

denomination or the relevant political party, as the

case may be; and

(b) in the case of a purpose foundation

established for any other purpose in accordance

with the deed of foundation.

(7) Any disposal of assets by the Court under

sub-article (4), shall be made on the following basis

(a) if the purpose foundation is not

established for a public benefit purpose, in the

absence of express direction in the statute, the

assets shall be paid out to the founder or his heirs;

(b) if the foundation is a public benefit

foundation, in the absence of express direction in

the statute in accordance with sub-article (6)(a), the

assets shall be disposed of in favour of

(i) the founder, if it is also a public

benefit organisation, irrespective of its

purpose; or

(ii) if sub-paragraph (i) does not apply,

another public benefit organisation with the

same or similar purposes but the recipient

shall make reasonable efforts to achieve the

original purposes of the endowments made to

the original organisation

Provided that when the purposes are the

advancement of religion or the carrying out of

a religious vocation or there are indications in

the original endowment that this was intended

for a religious organisation, to any pious

foundation or ecclesiastical entity, and in such

case of the appropriate denomination; or

(iii) if the Government of Malta is the

founder, to the Government of Malta if the

purposes are for the general public benefit or

utility;

(c) if the foundation has a combination of

purposes, being partly private benefit and partly

social or public purposes, the assets shall be paid

out as follows

(i) unless the social or public purposes

have already been achieved or are specifically

determined such that their extent can be

calculated, the assets shall be paid out, in

accordance with paragraph (b) in such manner

that reasonably proportionately reflects the

benefit intended for the social or public

purposes as may be approved on application

to the Court; and

(ii) the balance shall be paid out as

stated in paragraph (a); and

(iii) where the assets are not

immediately payable due to the fact that

payment is subject to a condition, a

contingency or a discretion, they shall be

retained until the condition or contingency

occurs or the discretion can be exercised;

(d) where the foundation is a pious

foundation, marriage legacy or ecclesiastical entity

which is constituted as a foundation and which

qualifies as a long-term obligation, in the event that

there may be any remaining assets from the sum

dedicated to the performance of the long-term

obligation after it has been performed, this shall be

paid out as may be determined in accordance with

Canon law and other legislation governing

religious organisations.";

(g) sub-article (8) thereof, as re-numbered, shall be

substituted by the following

"(8) When the dominant purpose of a foundation

is to support a class of persons which constitute a sector

within the community as a whole, because they suffer from

a particular social, physical or mental disability it shall be

permissible to indicate one or more individuals who suffer

from such condition as named beneficiaries.

Notwithstanding such indication, the foundation shall be

considered to be a public benefit purpose foundation on

condition that after the death of such beneficiaries, the

residual property of the foundation is, by the express terms

of the statute, to be held either for the exclusive benefit of

the designated class of beneficiaries or for another

foundation established for a similar social purpose which

qualifies as a public benefit."; and

(h) immediately after sub-article (8), as re-numbered

and substituted, there shall be added the following new sub-

articles

"(9) Notwithstanding the provisions of this article

and other provisions of this Schedule, a "purpose

foundation" which is not established as a public benefit

foundation shall be subject to the provisions of Column A

with the modifications in Column B which prevail over its

legal form in deference to its non-public benefit purposes

Column A

Column B

29(2)

The foundation must have an initial endowment

of money or property of at least one thousand and

one hundred and sixty four euro and sixty nine

cents (€1,164.69);

29(7)

The foundation may not be established for more

than one hundred and twenty-five years (125)

except where expressly permitted by this

Schedule;

32(4)

This sub-article shall not apply to the foundation

and if the foundation terminates because the

purposes have not been amended in accordance

with the statute, the assets of the foundation shall,

subject to the terms of the foundation, devolve on

the founder or his heirs at law;

34(6), (7)

Any endowments to the foundation may be

expressed to be revocable;

35(2)

The foundation may have only one (1)

administrator and the administrator or

administrators shall be subject to or otherwise

require authorisation by the Malta Financial

Services Authority under article 43 of the Trusts

and Trustees Act in accordance with its terms;

40(9)

The foundation may be constituted in a revocable

manner;

60(1)

This article shall not apply and article 60(2) shall

apply in lieu thereof.

(10) Without prejudice to the provisions of this

article, a provision in the statute granting the power to the

administrators to apply the proceeds to another public

benefit purpose when the stated purpose has been

achieved, exhausted or is no longer possible shall be

valid.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 75 Substitution of article 32A of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 32A of the Second Schedule shall be substituted by

the following

32A. (1) Without prejudice to the ability

"Public benefit

foundations

of any public benefit foundation to carry out acts

and trading

activities.

of trade in the ordinary course of carrying out its

principal purposes and objectives, in terms of

article 38(2) of the Voluntary Organisations Act,

where applicable, a foundation shall not be

established to carry out acts of trade or trading

activities on a regular or continuing basis nor

shall it do so in practice, except as permitted

under this article and when the proceeds of such

trading activities are attributable to a social or

public purposes.

(2) Notwithstanding the provisions of sub-

article (1) a foundation may own, acquire or be

endowed with shares or other interests in another

legal organisation and may generally

(a)

carry out any specific actions

with shares it may hold as may be

designated in the statute of the foundation

for the achievement of its main purposes

and objectives;

(b) subject to such authorisations as

may be necessary under applicable laws,

issue tokens and carry out any trading

activity resulting from such foundations

owing, administering or otherwise operating

an innovative technology arrangement; and

(c)

seek the achievement of

designated social purposes which may

include health and education

Provided that this shall not apply to

management agreements, licences or

otherwise to third parties for profit

Provided further that

(i)

when the foundation owns a

shareholding in an organisation established

to trade, the trading organisation shall not be

restricted in its activities by the purposes of

the foundation in any manner, unless

otherwise stated in the statute of such

trading organisation;

(ii) when the foundation qualifies as

a voluntary organisation and owns shares or

other interests in another legal organisation

established pursuant to the provisions of

article 38 of the Voluntary Organisations

Act, the provisions of sub-article (4) of the

said article 38 shall apply but the relevant

limitations shall not apply to persons who

are not involved in the foundation and are

not related parties thereto; and

(iii) the purposes of the holding,

acquisition or endowment of shares or other

interests shall not be to enable the

foundation to speculate with such assets.

For the purposes of sub-paragraph (ii),

"related parties" shall mean persons related by

consanguinity or affinity in the direct line in any

degree or in the collateral line up to the third

degree inclusively, and shall also include any

person involved in the same business under any

legal structure or otherwise.

(3) With reference to a public benefit

foundation

(a) its statute may contain additional

objectives and powers to enable it to carry

out any such activities, to achieve its

purposes, to protect its assets and otherwise

to comply with legal requirements; and

(b) it shall, in any case, be deemed to

have all the powers to do anything which is

necessary or ancillary to achieve the said

purposes.

(4) It shall be lawful for -

(a) the administrators or a person

designated in the statute;

(b) any public benefit beneficiary, in

the case of public benefit foundations; or

(c) the Attorney General, in the case

of a public benefit foundation and, or the

Commissioner for Voluntary Organisations

in the case of foundations which are

voluntary

organisations

enrolled

in

accordance with the Voluntary Organisations

Act,

to seek directions from the Court as to whether

the actual or proposed activity of the foundation

constitutes regular or continuing trading activity

beyond what is permitted under sub-article (1)

and the Court may, in such cases, issue directives

to the foundation on the manner in which it shall

carry out activities consistently with this article,

including a direction to amend its purposes and

objectives, but any such order shall not affect or

invalidate acts already lawfully carried out or

interrupt lawful acts in progress.

(5) The Court shall also consider the

following principles and circumstances

(a) in case of a public benefit

foundation, the avoidance of speculation

which may affect the assets of the foundation

and the achievement of its purposes;

(b) the creation of liabilities which

may impinge on the achievement of the

purposes of the foundation;

(c) the protection of third parties

dealing with the foundation; and

(d) the

competence

of

the

administrators to carry out such activities

and the extent of the delegation of such

functions to third parties.

(6) When a public benefit foundation is

established with segregated cells, the foundation

may itself render services against remuneration in

favour of any of its cells which are established for

the benefit of its beneficiaries or its purposes or

both.

(7) Nothing in this article shall prohibit

public benefit foundations regulated by European

Union law from carrying out acts of trade or

trading activities if they are permitted to do so

under such law

Provided such acts or activities are carried

out solely to achieve and promote the principal

purposes and objectives of the foundation.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 76 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 33 of the Second Schedule shall be amended as Amendment of

article 33 of the

Second

Schedule.

(a)

in the marginal note thereto, for the words "Private

foundations" there shall be substituted the words "Beneficiary

foundations";

(b) in sub-article (1) thereof the words "Foundations

imply fiduciary obligations under this Code upon all persons

administering them." shall be deleted;

(c)

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

foundation terminates for any other reason at law the assets of

the foundation shall, subject to the terms of the foundation,

devolve on the founder or his heirs at law." shall be deleted;

(d)

sub-article (4) thereof shall be amended as follows

(i) for the words "Private foundations" there

shall be substituted the words "Beneficiary foundations";

(ii) in the paragraph immediately following

paragraph (b) thereof, for the words "as aforesaid the

foundation," there shall be substituted the words "as

aforesaid,";

(iii) in the paragraph immediately following the

paragraph referred to in sub-paragraph (ii), for the words

"Such identification need not be made in the deed

constituting the foundation" there shall be substituted the

words "Such identification need not be made in the

constitutive instrument or statute";

(e)

sub-article (7) thereof shall be amended as follows

(i) for the words "Subject to the terms of the

deed of foundation, if the founders are still alive and

capable of acting they may freely amend the deed and

substitute, add or remove beneficiaries:" there shall be

substituted the words "Subject to the terms of the deed of

foundation which may exclude or restrict such power, if

the founder is still alive and capable of acting he may

freely amend the deed of foundation including substituting,

adding or removing beneficiaries:"; and

(ii) in the proviso thereto, for the words "he

receives notice" there shall be substituted the words "they

receive notice"; and

(f)

immediately after sub-article (19) thereof, there

shall added the following new sub-articles

"(20) When permitted by the statute of a

beneficiary foundation, beneficial interests may be

established in the statute or a beneficiary statement in

unitised form, of whatever nomenclature, where each unit

reflects a share in the assets of the foundation with such

rights to income, capital or other entitlements or powers as

may be stated in the statute or beneficiary statement and if

nothing is stated, proportionately to the total number of

units

Provided that the units may be subject to rules on

recordation in a register of units, transfers, pledges and

other such matters as the administrators may establish

from time to time or as are provided in the statute. In such

cases, the beneficial interest is presumed, unless otherwise

stated in the statute or beneficial statement, to be subject to

inheritance in favour of the beneficiary's heirs under his

will or at law in case of intestacy and shall not terminate as

provided for in sub-article (3).

(21) In the event that a private foundation as

defined in article 31B is dissolved for any reason at law,

the assets of the foundation shall, subject to the

performance of all obligations towards beneficiaries and

any other terms of the foundation, be presumed to be held

for the founder or his successors in title.

(22) Notwithstanding the provisions of this article,

and other provisions of this Schedule, where a "beneficiary

foundation" is established exclusively for public interest,

beneficiaries shall be regulated by the provisions in

Column A

Provided that such provisions listed in Column A

shall be subject to the modifications in Column B

Column A

Column B

29(2)

The foundation may have an initial endowment

of money or property of only two hundred and

thirty two euro and ninety four cents (€232.94);

29(4)(h)

The beneficiaries or class of beneficiaries must

be indicated in the statute and the use of a

beneficiary statement shall not be permitted;

29(7)

The foundation may be established for an

unlimited term and the one hundred and twenty-

five year (125) limit shall not apply;

32(2)

Any amendments or addition to the purpose of

the foundation may not introduce any purpose or

beneficiary which amounts to a private benefit;

32(4), (5),

These sub-articles on the using, disposal or

(6), (7)

distribution of assets on termination of a public

benefit foundation shall apply to the foundation

mutatis mutandis;

33(7), (9)

The founder or the administrators may add

beneficiaries if given such power but, at all times,

the new beneficiaries shall only be public interest

organisations;

The founder or the administrators may be given

the power to amend the deed of foundation

consistently with the rules applicable to public

benefit foundations;

33(21)

Any transfer of the beneficial interest may only

be made in favour of other public interest

organisations;

34(6), (7)

Endowments to the foundation are irrevocable

and the constitutive instrument or statute of the

foundation or the instrument of additional or new

endowment may not state that such endowments

are revocable;

35(2)

The foundation must have at least three (3)

administrators or at least one juridical person

acting as administrator in accordance with article

35(1);

38(1)(g)

The Attorney General or the Commissioner in

terms of the Voluntary Organisations Act may

request information from the administrators;

38(4)

The administrators are not bound to inform

certain beneficiaries until such time as they

intend making a distribution to them;

40(2)

The beneficiaries may not terminate the

foundation;

40(9)

This sub-article shall apply to the foundation;

The provisions of this article shall not apply;

however the founder may impose confidentiality

to protect the identity of the named persons

referred to in article 32(8);

60(2)

This sub-article shall not apply and on

dissolution and winding up of the foundation the

distribution of the assets shall be governed by

article 60(1). ".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 77 Amendment of article 34 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 34 of the Second Schedule shall be amended as

(a)

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

following

"(1) Subject to the provisions of the statute, any

person may add to the assets of a foundation by

endowments at any time. Endowments shall be considered

to have been made under the same terms and conditions,

for the same beneficiaries or for the same purposes, as the

case may be, in terms of the statute of the foundation.

Unless the provisions of sub-article (2) apply, the grantor

of such endowments, if not the founder, shall have no

status or powers in relation to the foundation and the

endowment shall be referred to as an additional

endowment.";

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

following

"(2) When permitted by the provisions of the

statute or with the express concurrence of the founder, the

supervisory council or protector, the administrators or, in

default of such persons, the Court, a person, hereinafter

referred to as "the grantor" may make an endowment in

such a manner that he shall be considered to have the status

and powers of a founder in the foundation in relation to

such endowment or in relation to the whole foundation, or

where such endowment is granted to a cell if so

contemplated and consented to as aforesaid, such

endowment shall be considered a new endowment.";

(c)

sub-articles (3), (4), (5), (6), (7), (8), (9), (10), (11)

and (12) thereof shall be re-numbered as sub-articles (5), (6),

(7), (8), (9), (10), (11), (12), (13) and (14), respectively;

(d) immediately after sub-article (2) thereof, as re-

numbered, there shall be added the following new sub-articles

"(3) When such augmentation by third parties is

made by means of a will, the testamentary disposition shall

be deemed to require the creation of a new foundation and

the administrators of the nominated foundation shall

proceed accordingly, even without the concurrence of the

persons mentioned in sub-article (2).

(4) Where the statute of a foundation provides for

the establishment of segregated cells, a new endowment,

whether transferred inter vivos or causa mortis, may be

constituted as a new segregated cell by the administrators

in which case the grantor’s status and powers may be

limited to such segregated cell. When a grantor becomes a

new founder as aforesaid the rules in article 39 shall apply

when there is more than one founder.";

(e)

sub-article (6) thereof, as re-numbered, shall be

substituted by the following

"(6) In the event that endowments are received by

such foundation in a regular manner in terms of a scheme

which is registered with the Registrar, it shall not be

required that the administrators file a descriptive note on

each occasion that a new or additional endowment is made

but they shall file a schedule of endowments on an annual

basis. Neither shall it be required that the administrators

enter into a public deed on each occasion that an

endowment is made, unless the endowment involves

immovable property. In each case, the administrators shall

file the prescribed form and required attachments to notify

such endowments to the Registrar.";

(f)

sub-article (7) thereof, as re-numbered, shall be

substituted by the following

"(7) Endowments may be granted under a

condition, for a fixed time or in accordance with express

rules stated in the statute. A new endowment may be made

for purposes which are different from those of the

foundation. In the absence of any indication, endowments

shall be considered to be unconditional and made for the

same purposes of the foundation.";

(g) sub-article (8) thereof, as re-numbered shall be

substituted by the following

"(8) Additional and new endowments to public

benefit foundations shall be irrevocable notwithstanding

any term to the contrary in the constitutive instrument or

statute of the foundation or the instrument providing for

the additional or new endowment.";

(h) sub-article (9) thereof, as re-numbered, shall be

amended as follows

(i) for the words "Unless expressly stated

otherwise, endowments to foundations shall be deemed"

there shall be substituted the words "Unless expressly

stated otherwise, additional and new endowments to

beneficiary foundations shall be presumed"; and

(ii) for the words "in the deed of constitution"

there shall be substituted the words "in the constitutive

instrument or statute of the foundation or the instrument of

additional or new endowment";

(i)

in sub-article (10) thereof, as re-numbered, for the

words "Where an endowment is made" there shall be substituted

the words "Where, in the case of a beneficiary foundation, an

additional or new endowment is made";

(j)

sub-article (11) thereof, as re-numbered, shall be

substituted by the following

"(11) In the case of a beneficiary foundation, the

revocation of an endowment shall not affect or invalidate

acts already carried out or interrupt acts in progress, nor

affect commitments made and not yet fulfilled. The

revocation of an endowment shall be suspended until such

time as the administrators certify to the Registrar that all

commitments have been fulfilled and shall be deemed to

refer only to such amount as shall not have been utilised in

fulfilment of such commitments.";

(k) sub-articles (12), (13) and (14) thereof, as re-

numbered, shall be substituted by the following

"(12) The revocation of an additional or new

endowment shall not imply the termination of a foundation

but shall, unless otherwise stated in the statute, imply the

cessation of the status of founder and all related rights in

relation to the grantor.

(13) If a foundation is the beneficiary of a new or

additional endowment granted for specific purposes

different from its own purposes, unless permitted in

accordance with sub-article (5), the administrators shall

seek new instructions from the grantor and if that is not

possible, such endowment shall not be accepted and shall

be deemed to require the creation of a new foundation and

the administrators of the recipient foundation shall proceed

accordingly.

(14) When a foundation receives an endowment

without sufficiently specific terms and from the

circumstances it is evident that the foundation owes

fiduciary duties in relation to such property towards a

beneficiary or a class of beneficiaries or a purpose, the

administrators shall execute a unilateral declaration by

instrument in writing containing all the fiduciary terms

under which the foundation is holding the same,

comprising the information enabling the identification of

all the beneficiaries or purposes. The administrators may

ask the Court to confirm the contents of their

declarations."; and

(l)

immediately after sub-article (14) thereof, as re-

numbered and substituted, there shall be added the following

new sub-articles

"(15) In the event that there are no administrators

at the time of establishment or registration of a foundation,

the founder or the person having the power to appoint

administrators shall be deemed to have the power to accept

any endowment but shall not have the power to bind the

foundation on any other matter nor shall the foundation be

entitled to commence operations prior to the appointment

of the required number of administrators.

(16) The term "endowment" for the purposes of

this Title shall mean any grant of money or other property

under a gratuitous title, including rights to money or other

property, existing or which may arise in the future.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 78 Amendment of article 35 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 35 of the Second Schedule shall be amended as

(a)

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

foundations shall have" there shall be substituted the words

"When a foundation is a public benefit foundation it shall have";

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

deed" there shall be substituted the words "constitutive

instrument or statute";

(c)

sub-article (9) thereof shall be amended as follows

(i) paragraphs (a), (b) and (c) thereof shall be

substituted by the following

"(a) the lapse of the term for which the

administrator was appointed;

(b)

the removal of the administrator by

any person or body having the power to do so in

terms of the public deed of the foundation or by the

Court on grounds stated in the deed of foundation

or in this Schedule;

(c)

steps are taken for the winding up of

the administrator when a legal person;"; and

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

shall be added the following new paragraphs

"(d) when the administrator is a legal

person, the retirement, resignation or removal of all

administrators, including directors in a company

acting as administrator, from their office in the said

legal person or steps are taken for its winding up;

or

(e) where an administrator is appointed

without any indication of his duration of office

and

(i)

is the sole administrator, he shall

require that the statute caters for a substitute

administrator or the manner in which a new

administrator may be appointed upon his

retirement, resignation or removal. Where the

administrator is in default of the obligation in

this paragraph, a new administrator may be

appointed to substitute such administrator at

any time with the consent of the founder, of

any person designated in the statute or of the

Court in the absence of such persons; and

(ii) there is more than one

administrator, it is implied that the other

administrators shall have the power to

remove the administrator at any time when

they consider that he is unable to carry out his

functions due to health or in accordance with

the provisions of article 9

Provided that in case of disagreement on any

of the matters referred to in this paragraph, the

administrator who was appointed without any

indication of his duration in office may apply to the

Court and demand that the Court issues such orders

regarding his substitution, retirement, resignation

or removal, as it considers appropriate after hearing

the relevant persons.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 79 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 36 of the Second Schedule shall be amended as Amendment of

article 36 of the

Second

Schedule.

(a)

in sub-article (1) thereof, immediately after the

words "are being dealt with by the Court." there shall be added

the following

"The founder may also be vested with powers to

appoint, add or remove any administrators, protectors or

beneficiaries and powers to appoint an investment adviser

or investment manager and where a power mentioned in

this sub-article has been reserved or exercised by the

founder, an administrator who acts in accordance with any

directions issued pursuant to the founder’s power as

aforesaid shall not be considered to be acting in breach of

his fiduciary duties.";

(b) in sub-article (2) thereof, immediately after the

words "A founder may be an administrator" there shall be added

the words "or a protector";

(c)

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

foundation" there shall be substituted the words "beneficiary

foundation"; and

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

be added the following new sub-article

"(4) It shall be lawful for a founder to give non-

binding written guidance to the administrators on how to

exercise the powers or discretions vested in them in the

deed of foundation or the beneficiary statement and to

substitute, modify or withdraw such guidance from time to

time as the founder sees fit. A beneficiary may also be

permitted to give such guidance by means of specific

clauses in the deed of foundation or the beneficiary

statement, and this, with effect from the date of death of

the founder.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 80 Amendment of article 37 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 37 of the Second Schedule shall be amended as

(a)

sub-articles (2), (3), (4), and (5) thereof shall be re-

numbered as sub-articles (3), (4), (5) and (6) respectively;

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

be added the following new sub-article

"(2) The founder may be the sole or one of the

members of the supervisory council or may also be a

protector. However, a founder may not carry out the

functions of a protector for as long as he holds the office of

an administrator.";

(c)

sub-article (3) thereof, as re-numbered, shall be

substituted by the following

"(3) The members of the supervisory council or

the protectors

(a) may be designated in the statute of the

foundation; or

(b) where no such designation is made,

may be subsequently appointed by the

administrators and in the manner prescribed in the

statute; and

(c) may be removed and replaced by the

administrators and in the manner prescribed in the

statute.";

(d) in sub-article (5) thereof, as re-numbered,

immediately after the words "or addition of administrators"

there shall be added the words "and such other powers as may

be stated in the statute including the power to give guidance to

the administrators in the exercise of their powers, discretions or

duties.";

(e)

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

words "The exercise of any action or discretion" there shall be

substituted the words "The exercise of any power, action or

discretion"; and

(f)

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

numbered, there shall be added the following new sub-articles

"(7) Unless the statute of a foundation expressly

states otherwise and until such time as the supervisory

council or protectors are appointed, in the event that a deed

of foundation contemplates a supervisory council or

protectors whose consent or direction is needed for the

administrators to carry out any act, the administrators shall

be presumed to have the power to carry out any act without

such consent or direction

Provided that, the decision to act without consent is

taken unanimously by the administrators.

(8) The presumption in sub-article (7) shall not

apply if the statute requires the administrators or any of

them to appoint the members of the supervisory council or

the protectors.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 81 Amendment of article 38 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

In paragraph (f) of sub-article (1) of article 38 of the

Second Schedule, for the words "purpose organisation" there shall be

substituted the words "public benefit organisation".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 82 Substitution of article 40 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 40 of the Second Schedule shall be substituted by

the following

40. (1) Subject to the provisions of sub-

"Termination

of a

article (2), unless expressly provided otherwise in

foundation.

the statute or in this Title, a foundation shall not

be subject to termination prior to the term for

which it is established.

(2) Unless the founder has expressly

excluded such a right, a beneficiary foundation

may be terminated on the demand of all the

beneficiaries of the foundation provided they are

all in existence, have been ascertained and no one

of them is an interdicted or a minor. If the founder

is still alive his consent shall be required for

termination by the beneficiaries. The founder may

subject termination to the consent of a person or

the supervisory council or the protectors, other

than the administrators, stated in the statute.

(3) Notwithstanding anything stated in the

statute or in sub-article (2), after the death of the

founder, the Court shall have the power to

dissolve and wind up any beneficiary foundation

when requested to do so by all the beneficiaries of

the foundation if it is satisfied that the

continuance of the foundation is no longer

necessary to achieve the intentions of the founder

or is otherwise unreasonable.

(4) The statute of a foundation may

provide that it may be terminated at any time but

termination shall not affect or invalidate acts

already lawfully carried out or interrupt lawful

acts in progress. Nor shall termination affect

lawful commitments made and not yet fulfilled.

Termination shall be suspended until such time as

the administrators certify to the Registrar that all

lawful commitments have been fulfilled.

(5) The express reservation by the founder

of the right to terminate a foundation shall not be

exercisable by the heirs or spouse of such founder

unless expressly provided otherwise in the deed

of foundation. Without prejudice to any other

remedies available at law, creditors of the founder

may not exercise the right to terminate a

foundation.

(6) When a foundation is terminated, the

procedures in article 59 shall apply.

(7) Except in cases contemplated in article

47(2), where a foundation is converted into a

trust, termination of registration shall imply

termination of the foundation but not of the

fiduciary obligations therein contained and upon

notice of the conversion, the Registrar shall

proceed to strike off the foundation.

(8) The administrators shall have a duty to

maintain in good standing the registration of a

foundation until it is terminated as provided for in

this article.

(9) Public benefit foundations may only be

constituted in an irrevocable manner and, without

prejudice to the power to terminate such a

foundation in accordance with article 32 for the

reasons and subject to the conditions therein

stated, any clause in the statute reserving the right

for the founder or any other person or body to

revoke such foundation shall not apply.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 83 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 41 of the Second Schedule shall be substituted by Substitution of

article 41 of the

the following

Second

Schedule.

41. The Court shall have jurisdiction in

"Jurisdiction of

the Court.

relation to all non-contentious matters which are

internal to the foundation, its administrators and

beneficiaries

Provided that if a non-contentious matter

being examined by the Court becomes

contentious, the Court shall declare the

proceedings before it to be contentious and shall

continue to deal with the matter as a contentious

issue, providing the parties the opportunity to

promote the claim and respond to it according to

law.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 84 Amendment of article 42 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 42 of the Second Schedule shall be amended as

(a)

sub-article (4) thereof shall be re-numbered as sub-

article (5);

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

be added the following new sub-article

"(4) In sub-articles (1) and (2) of this article all

references to "foundation" shall be references to a

beneficiary foundation.";

(c)

sub-article (5) thereof, as re-numbered, shall be

substituted by the following

"(5) An application to the Court made under the

previous sub-articles may be made by the administrator, by

any beneficiary or by any interested party, as the case may

be."; and

(d) immediately after sub-article (5) thereof, as re-

numbered and substituted, there shall be added the following

new sub-articles

"(6) In the event that the statute of a purpose

foundation does not contain any provisions relating to

amendments to such statute, if the Court is satisfied that

circumstances exist justifying a request made for such

amendments to be made to the statute, the Court may

order -

(a)

any variation or addition to the statute;

(b) any variation to the purposes for which

property may be applied;

(c) any variation of any provision of the

statute as may be required for the effective

achievement of the purposes of the foundation or

its administration; and

(d) any variation to achieve the re-

organisation of the structure of the foundation

including its division into two or more foundations

or legal organisations of a similar nature, or its

conversion into a trust or trusts,

and to the extent that the provisions of article 32(8) apply,

the Court shall have the powers referred to in this article

with reference to any identifiable beneficiaries to whom

the provisions of sub-article (1) apply.

(7) The Court shall not approve a request under

the previous sub-article unless it is of the opinion that such

amendment is, as far as reasonably practicable, consistent

with the principal purpose and objectives of the

foundation.

(8) Any variation approved by the Court shall be

implemented by an amendment to the statute and the

administrators shall abide by the formalities as may be

prescribed in the statute and in applicable law.

(9) Any application to the Court made under sub-

article (6) may be made by the administrator, any person

vested with such power in the statute or by the Attorney

General, as the case may be.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 85 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 43 of the Second Schedule shall be amended as Amendment of

article 43 of the

Second

Schedule.

(a)

in the proviso to sub-article (3) thereof, for the

words "in terms of article 36 of this Schedule" there shall be

substituted the words "in terms of article 38"; and

(b) in sub-article (7) thereof, for the words "under a

foundation" there shall be substituted the words "under a

beneficiary foundation".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 86 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 44 of the Second Schedule shall be amended as Amendment of

article 44 of the

Second

Schedule.

(a)

in sub-article (1) thereof, immediately after the

words "of this Schedule" there shall be added the words "except

where the matter has been declared to be contentious and the

Court has, after the relevant proceedings have been completed,

rendered a judgement on any matter"; and

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

or directions" there shall be substituted the words "declarations,

directions or judgements".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 87 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 45 of the Second Schedule shall be amended as Amendment of

article 45 of the

Second

Schedule.

(a)

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

foundation" there shall be substituted the words "beneficiary

foundation"; and

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

be added the following new sub-article

"(5) The provisions of this article shall apply only

to beneficiary foundations.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 88 Amendment of article 47 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after sub-article (3) of article 47 of the

Second Schedule there shall be added the following new sub-article

"(4) The provisions of this article shall apply mutatis

mutandis to

(a) the conversion of a cell of a foundation into a

trust, whether relating only to the assets of such cell or by

incorporating the cell assets as a segregated patrimony

under an existing trust; and

(b) the conversion of a trust, or a segregated part

thereof, into a cell of a multi-cell foundation.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 89 Amendment of article 48 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 48 of the Second Schedule shall be amended as

(a)

the marginal note thereto shall be substituted by the

following

"Associations

established

as

private

benefit

organisations.";

(b) sub-article (1) thereof shall be deleted and sub-

articles (2), (3), (4) and (5) thereof shall be re-numbered as sub-

articles (1), (2), (3) and (4) respectively;

(c)

sub-article (1) thereof, as re-numbered, shall be

amended as follows

(i) for the words "When established for the

promotion of a private interest an association of persons

shall be regulated by -" there shall be substituted the words

"When established for the promotion of a private benefit,

an association of persons shall be regulated by special laws

mentioned in this sub-article as the case may be, based on

the purposes and legal form chosen by its promoters,

whether it is registered or not with the Registrar:";

(ii) paragraphs (d) and (e) thereof shall be

substituted by the following

"(d) the special laws relating to unions and

employer associations;

(e) the

special

laws

relating

to

co-

operatives;";

(iii) immediately after paragraph (e) thereof, there

shall be added the following new paragraphs

"(f) the provisions of special law, where

promoting ancillary or incidental private benefit,

other than those listed above;

(g)

where there is no other special law

which is applicable, the provisions of this Sub-Title

III "Of Associations" other than those governing

public benefit organisations; or

(h) where for any reason the provisions of

a special law cease to apply to an association which

continues to exist, the provisions of this Schedule

shall apply.";

(d) sub-article (2) thereof, as re-numbered, shall be

substituted by the following

"(2) The special laws referred to in sub-article (1)

shall be supplemented by the provisions of this Schedule,

with the exception of provisions which apply solely to

public benefit organisations in the form of associations

Provided that, where the provisions of this

Schedule are not consistent with the special laws, the

special laws shall prevail.";

(e)

sub-articles (3) and (4) thereof, as re-numbered,

shall be substituted by the following

"(3) Where an association is governed in

accordance with the provisions of sub-article (1)(g) and

irrespective of whether the association is registered or not

(a) the provisions of the statute shall, in

case of inconsistency, prevail over the provisions of

this Sub-Title III "Of Associations" and the

applicable provisions of this Schedule except

where such provisions are mandatory;

(b) subject to the benefit of discussion of

the assets of an association, which must first be

discussed, any member shall be liable to third

parties with whom the association has contracted in

proportion to his share in the profits and losses or

in proportion to his benefit or other interests in

such association, whichever is the higher, unless

(i) his liability has been varied in a

contract entered into with the third party,

which contract shall not bind other members

of the association without their consent; or

(ii) such liability has been excluded

or limited by any provision of law;

(c) when the share of the profits or losses,

or the benefit or other interests, is not determined

on the basis of a designated proportion, the liability

of a member shall be based on the proportion which

his monetary contribution bears to the total

contributions of the members.

The matters referred to in paragraphs (b) and (c)

shall be determined on the basis of express provisions in

the statute and absent any such provisions, the liability to

third parties shall be equally borne by the members and

any private agreement among members shall not affect the

rights of third parties.

(4) If any member, for any reason, directly or

indirectly, pays or is subject to a liability greater than his

proportional share as stated in sub-article (3)(b) or (c),

such member shall have a right of relief against the other

members proportional to their share, subject to any

agreement among the members or the provisions of the

statute on such matters."; and

(f)

immediately after sub-article (4) thereof, as re-

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

"(5) The Minister may make regulations in

relation to associations governed by the provisions of this

Schedule for their better governance and shall have the

power

(a) to extend the application of specific

provisions of special laws regulating other types of

associations to such associations; and

(b) to introduce rules which apply when

such associations are registered with the Registrar,

which rules may establish different principles to

those stated in sub-article (3) for such registered

associations; and

(c) to introduce any special rules,

including limited liability for the members for

particular cases and establish the conditions under

which such limited liability may be enjoyed.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 90 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 48 of the Second Schedule there Addition of new

article to the

shall be added the following new article

Second

Schedule.

48A. (1) When

an

association

is

established as a public benefit organisation, it

organisations.

shall be governed by the provisions of this Sub-

Title III "Of Associations" and the applicable

provisions of this Schedule, with the exception of

provisions of article 48.

(2) The provisions of the statute of such

association shall, in case of inconsistency, prevail

over the provisions of this Sub-Title III "Of

Associations" and the applicable provisions of

this Schedule except where they are mandatory.

(3) The rules on liability of the members

of such an association towards third parties shall

be governed by

(a)

article 16 if the association is

registered with the Registrar; and

(b) article 17 if the association is not

so registered.

(4) Where applicable the associations

referred to in sub-article (1) shall also be

regulated by the provisions of the Voluntary

Organisations Act.

(5) In the event that the statute of an

association established as a public benefit

organisation does not contain any provisions

relating to amendments to such statute, if the

Court is satisfied that circumstances exist

justifying a request made for such amendments to

be made to the statute, the Court may order

(a)

any variation or addition to the

statute;

(b) any variation to the purposes for

which property may be applied;

(c)

any variation of any provision of

the statute as may be required for the

effective achievement of the purposes of the

foundation or its administration; and

(d) any variation to achieve the re-

organisation of the structure of the

foundation including its division into two or

more associations or legal organisations of a

similar nature.

(6) The Court shall not approve a request

under the sub-article (5) unless it is of the opinion

that such amendment is, as far as reasonably

practicable, consistent with the spirit of the

promoter’s intention.

(7) Any variation approved by the Court

shall be implemented by an amendment to the

statute and the administrators shall abide by the

formalities as may be prescribed in the statute, if

any, and in applicable law.

(8) Any application to the Court made

under sub-article (5) above may be made by the

administrator, any person vested with such power

in the statute or by the Attorney General, as the

case may be.

(9) The provisions of article 32(8) shall

also apply to associations mutatis mutandis.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 91 Amendment of article 49 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 49 of the Second Schedule shall be amended as

follows

(a)

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

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

the following

"(c) (i) the purposes or objects of the

association; and

(ii) the category of the association

when the association is a public benefit association

as defined in article 1(4);";

(ii) paragraphs (f), (g) and (h) thereof shall be

substituted by the following

"(f) the composition of the board of

administration

and

the

name,

surname,

identification, passport or registration number as

applicable, nationality and ordinary residence of

the administrators;

(g) the manner in which administrators are

appointed or elected to and removed from office;

(h) where there exist more than one board

or committee in virtue of the statute, the statute

shall specify which board or committee shall be the

board of administration;";

(iii) in paragraph (i) thereof, for the words "the

name and address of a person resident in Malta" there shall

be substituted the words "the name and address of a person

ordinarily resident in Malta"; and for the words "of the

association in Malta; and" there shall be substituted the

words "of the association in Malta;";

(iv) in paragraph (j) thereof, for the words "if

any." there shall substituted the words "if any;"; and

(v) immediately after paragraph (j) thereof, there

shall be added the following new paragraph

"(k) when the category of the association is

public benefit, this shall be stated expressly in the

constitutive instrument and statute of the

organisation.";

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

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

(c)

immediately after sub-article (2) thereof, as

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

"(3) If no term is specified in the statute of the

association, such association shall be considered to be

indefinite in duration."; and

(d) sub-article (4) thereof, as re-numbered, shall be

substituted by the following

"(4) (a) The statute shall be signed by the

associating persons and any person subscribing to the

statute after an association is established shall be deemed

to have consented to all the provisions of the statute and all

rules which may have been validly promulgated by the

association until such date. In the event that more than

three persons wish to establish an association, a statement

may be made of this fact in the statute and the signature of

three persons on behalf of all associating members stated

in a schedule to the statute shall be sufficient to indicate

the consent of all stated persons.

(b) Where an association is being

established as a public benefit association involving more

than three persons as promoters, the signature of three

persons shall be sufficient to indicate the consent of all

other associating members at the time of establishment.

(c) A document containing a list of all other

associating members shall be sufficient evidence of their

consent and notwithstanding the provisions of any other

law, in respect of the persons listed in the document

containing the list of all associating members, their name,

surname and identity card, passport number or registration

number, as applicable, shall suffice. A declaration by the

three persons that they are authorised to act on behalf of all

other associating members shall be recorded under their

signature.

(d) When such association is constituted by

public deed, the Notary Public shall not be bound to

ascertain that the three persons have been authorised by the

associating members to appear on the deed but shall rely

on the document submitted to him by the three persons

containing a list of all associating members as evidence of

their consent. Notwithstanding the provisions of any other

law, in respect of the persons listed in the document

containing the list of all associating members, their name,

surname and identity card, passport number or registration

number, as applicable, shall suffice.

(e) The Notary Public who receives any

deed to which this sub-article refers shall record in the

deed a declaration by the three persons that they are

authorised by the associating members to state their names,

surnames and identity card, passport number or

registration number, as applicable, in the document above

referred to and the said Notary Public shall warn the said

three persons of the importance of the truthfulness of such

declaration.

(f) The document shall be attached to the

statute by the declarants or, if established by public deed,

to the public deed establishing the association.

(g) Any person named as an associating

member in a document as referred to above who claims

that he did not authorise the three persons to include his

name and surname and identity card, passport number or

registration number, as applicable, in the document shall,

within sixty (60) days of his becoming aware of his

inclusion in the document, be entitled to register a

declaration to that effect in the Register of the association

and in the lack of any written evidence to the contrary

which may be produced in case of dispute on such matter

he shall not be considered ever to have been an associating

member.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 92 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

In sub-article (5) of article 50 of the Second Schedule, for Amendment of

the words "A social purpose association" there shall be substituted the article

Second

words "A public benefit association"; and for the words "social Schedule.

purposes" there shall be substituted the words "public benefit

purposes".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 93 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 51 of the Second Schedule shall be amended as Amendment of

article 51 of the

Second

Schedule.

(a)

sub-articles (1), (2) and (3) thereof shall be re-

numbered as sub-articles (2), (3) and (4) respectively;

(b) immediately before sub-article (2) thereof, as re-

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

"(1) Subject to the provisions of article 12(3), all

associations shall be eligible to register under the

provisions of this Title.";

(c)

sub-article (4) thereof, as re-numbered, shall be

substituted by the following

"(4) The document referred to in article 49(4)

relating to the other associating members, when such is the

case, at the time of establishment shall also be delivered to

the Registrar for registration."; and

(d) immediately after sub-article (4) thereof, as re-

numbered, there shall be added the following new sub-articles

"(5) The name, surname and identity card or

passport or registration number, as applicable, of every

person who joins an association as a member after this has

been established and, or registered, shall be entered in a

register of members which shall be regularly updated. A

record of the persons who leave the association shall also

be maintained in the said register of members.

(6) Such register of members shall not be

registered with the Registrar but this shall be without

prejudice to the right of any person, subject to Court

authorisation, and to the right of the Commissioner for

Voluntary Organisations in the case of a voluntary

organisation, and to the right of the Malta Financial

Services Authority in the case of entities which are

regulated or which appear to be carrying out regulated

activities for which it is the competent authority under

applicable law, to require information about members

subject to the provisions of applicable law.

(7) Notwithstanding the preceding sub-article, in

the case of a public benefit organisation in the form of an

association

(a) if it is registered with the Registrar, the

register of members may be registered by the

Registrar at any time upon the written request of

the administrators and shall be available to the

public in all cases;

(b) the register of members shall always be

accessible to any member.

(8) On receipt of the documents mentioned in

sub-articles (2) or (3) together with the prescribed forms

and any required attachments, the Registrar shall register

the association on being satisfied that all the provisions of

this Sub-Title have been complied with.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 94 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 53 of the Second Schedule shall be amended as Amendment of

article 53 of the

Second

Schedule.

(a)

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

following

"(2) The provisions of article 35 shall mutatis

mutandis apply to administrators of associations except as

herein provided."; and

(b) immediately after sub-article (2) thereof, as

substituted, there shall be added the following new sub-articles

"(3) An association established for the promotion

of a private benefit may be administered by only one

administrator and such administrator may also be a

registered legal organisation on condition that such legal

organisation has at least one administrator in office.

(4) In the case of a private benefit association,

the administrators of the association may be appointed in

any manner whether by notice in writing from any member

or class thereof, by elections among the members, by

designation to an office by the administrators or otherwise

as the statute may establish and for any term or function,

subject to the provisions of sub-article (5) for indefinite

appointments.

(5) In the case of a public benefit association the

same rules shall apply but notwithstanding the provisions

of the statute

(a) the majority of the administrators shall

be appointed by means of elections among the

members in general meeting except where every

member or every class of members is each given

the right to appoint and remove an administrator or

where the provisions of sub-article (6) apply; and

(b) it shall be required that a majority of the

administrators shall be subject to confirmation by

the general meeting of the members at least once

every five (5) years

Provided that when the provisions of sub-article (6)

apply, such administrators as are appointed indefinitely

shall not be subject to such confirmation.

(6) When an administrator is appointed

indefinitely, such appointment shall imply a power of the

general meeting to remove such administrator at any time

when it considers that he is unable to carry out his

functions due to health or under article 9

Provided that in case of disagreement on any of the

matters referred to in this sub-article, the administrator

who is appointed indefinitely may request the Court to

issue such orders as it considers appropriate after hearing

the relevant persons.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 95 Amendment of article 54 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 54 of the Second Schedule shall be amended as

(a)

sub-article (3) thereof shall be amended as follows

(i) immediately after the words "falls, below

three" there shall be added the words "and in case of an

association which may be established between two person

in accordance with article 27, falls below two,";

(ii) for the words "with the termination of the

registration of such association in terms of this Title." there

shall be substituted the words "with the winding up of the

association under this Schedule.";

(b) sub-article (6) thereof shall be substituted by the

following

"(6) The membership of a person in a

public benefit organisation established as an

association is not transferable nor shall be subject

to inheritance. Members may not have

patrimonial rights to the assets of such an

association except as permitted under the

Voluntary Organisations Act and are not entitled

to any compensation on retirement or expulsion

or on winding up of the association."; and

(c)

sub-article (7) thereof shall be deleted.

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 96 Substitution of article 55 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 55 of the Second Schedule shall be substituted by

the following

55. (1) The provisions of article 34 shall

"Endowments.

apply mutatis mutandis to endowments,

additional and new, to public benefit

organisations established as associations

Provided that endowments shall be subject

to the written acceptance of the administrators or

as otherwise required by the statute and such

endowment, when accepted, shall imply that the

grantor has become a member of the organisation,

unless otherwise expressly agreed or provided for

in the statute in relation to endowments, with the

same rights and obligations and otherwise in

accordance with the statute and the provisions of

this Schedule.

(2) Membership fees are not endowments

and shall not be treated as such nor shall they be

refundable except as expressly stated in the

statute.

(3) When an association has a private

benefit, new or additional endowments shall

generally be considered to be contributions to the

capital of the association and the following rules

shall apply

(a)

an endowment shall be subject

to the consent of the administrators or as

otherwise required by the statute;

(b) an endowment when accepted,

shall constitute a contribution in favour of

the association and in favour of the grantor

who shall thereupon become a member, and

if he is already a member of the association,

such contribution shall be considered to be

an additional endowment to his initial

endowment;

(c)

unless otherwise agreed or

stated in the statute or if the subject is not

addressed in any agreement or the statute, it

shall be presumed that the contributions

shall be the basis of proportionality of all

rights and obligations within the

organisation;

(d) the statute may regulate and

establish rules, which may be based on

principles other than proportionality, on the

following matters

(i) the rights of members in

relation to their contributions with

regard to voting, sharing in profits and

losses and participation in capital on

dissolution;

(ii) participation

in

management of the organisation and

rights to be appointed or elected as and

appoint or elect administrators;

(iii) subject to the rights of

third parties being protected, the

manner in which the contributions of

the members may be withdrawn or

otherwise paid back to them.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 97 Amendment of article 56 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 56 of the Second Schedule shall be amended as

(a)

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

"(3) In the case of public benefit organisations

established as associations, subject to the provisions of the

statute, any assets on termination shall be donated or

distributed by the administrators on behalf of the

association to -

(a) first to the founder, if the founder is

another public benefit organisation;

(b) if paragraph (a) does not apply, to

another public benefit organisation with the same

or similar purposes and features, or in default to

any other organisation with a social or public

purpose

Provided that when the purposes are the

advancement of religion or the carrying out of a

religious vocation or there are indications in the

original endowment that this was intended for a

religious organisation, to any pious foundation or

ecclesiastical entity, and in such case of the

appropriate denomination;

(c) to the Government of Malta if the

purposes are general public benefit or utility when

the Government has granted the association a

substantial part of its assets, as the administrators

or the members in general meeting may determine

in accordance with the provisions of article

52(3)(b).";

(b) sub-article (4) thereof shall be re-numbered as sub-

article (5); and

(c)

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

be added the following new sub-article

"(4) In the case of associations established for a

combination of purposes, being partly private benefit and

partly social or public benefit, the assets shall be paid out

to the members in such manner that the assets reflecting

the private benefit owned by the members shall be paid to

the members and the remaining assets shall be disposed of

in accordance with the provisions of sub-article (3), as may

be approved by the members in accordance with article

52(3)(b), and in case of disagreement as may be directed

by the Court.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 98 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Sub-article (1) of article 58 of the Second Schedule shall Amendment of

article 58 of the

be substituted by the following

Second

Schedule.

"(1) Without prejudice to any special law regulating the

form or purpose of an organisation, an organisation may be

wound up voluntarily or by order of the Court.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 99 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 59 of the Second Schedule shall be amended as Amendment of

article 59 of the

Second

Schedule.

(a)

in sub-article (1) thereof, for the words "in case of a

foundation." there shall be substituted the words "in case of a

foundation:" and immediately thereafter there shall be added the

following new proviso

"Provided that the local representative may also

wind up the organisation if he has not received any form of

notification from any of the administrators for a period

which exceeds twenty-four (24) consecutive months.";

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

words "its assets exceed its liabilities" there shall be added the

words "or its assets have been exhausted"; and

(c)

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

be added the following new sub-article

"(4) Once the scheme of distribution is approved,

the administrators shall proceed to pay out the remaining

assets of the organisation in accordance with such scheme

of distribution.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 100 Amendment of article 60 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 60 of the Second Schedule shall be amended as

(a)

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

organisation" there shall be substituted the words "public

benefit organisation"; and

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

following

"(2) In case of dissolution and winding up of an

organisation established for a private benefit and in the

absence of an indication in the statute of how assets are to

be distributed in case of winding up, the assets shall be

paid to the beneficiaries or members, or, to the founders or

promoters or their heirs at law after payment of all

expenses, as may be determined by the Court after hearing

the proposals of the administrators, the founders or

promoters if alive, the beneficiaries or members and any

other interested parties, keeping in view the intentions of

the founder.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 101 Amendment of article 62 of the follows: Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 62 of the Second Schedule shall be amended as

(a)

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

foundation" there shall be substituted the words "private

foundation as defined under article 31B"; and

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

foundation" there shall be substituted the words "public benefit

organisation".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 102 Amendment of article 64 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

In sub-article (3) of article 64 of the Second Schedule, for

the words "private foundation" there shall be substituted the words

"private foundation as defined in article 31B".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 103 Amendment of article 65 of the Second Schedule. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

In article 65 of the Second Schedule, immediately after the

words "struck off the Register" there shall be added the words "of

Legal Persons".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 104 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 66 of the Second Schedule shall be amended as Amendment of

article 66 of the

follows

Second

Schedule.

(a)

for the words "the Court shall" there shall be

substituted the words "the Court shall, on the demand of any

founder, the last serving administrators or any member,"; and

(b) for the words "distributing or liquidating such assets

or liabilities." there shall be substituted the words "paying out or

liquidating such assets or liabilities.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 105 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 67 of the Second Schedule there Addition of new

articles to the

shall be added the following new articles

Second

Schedule.

68. (1) Where the Registrar has

"Defunct

organisations.

reasonable cause to believe that a registered

organisation is not in operation, he may send a

letter by post, to enquire whether the organisation

is in operation.

(2) In the event that the Registrar is

notified with the letter referred to in sub-article

(1), to the effect that the organisation is not in

operation, or does not within three (3) months of

sending such letter receive such notification from

any administrator or any member in the case of an

association, he shall publish a notice in the

Gazette and in a daily newspaper that, at the

expiration of three months from the date of the

last publication of the said notice, the

organisation, unless the Registrar is satisfied that

cause has been shown to the contrary and there

are sufficient grounds that the organisation is not

defunct, shall be struck off the Register, and the

remaining assets of the organisation shall devolve

in accordance with the provisions of the Statute or

in the absence of such statute, in accordance to

the provisions of this Schedule as would occur on

dissolution.

(3) If any creditor or any other interested

party who feels aggrieved by the fact that the

name of the organisation has been struck off the

Register by virtue of this article, the Court, on an

application made by such creditor or any other

interested party before the expiration of five years

from the publication of the notice of the striking

off provided for in sub-article (2) may, if satisfied

that there are sufficient grounds to revoke the

Registrar’s order to strike off the organisation,

order that such name be restored to the Register,

and upon an official copy of the order being

delivered by the Registrar of the Courts to the

Registrar for registration, the organisation shall

be deemed to have continued in existence as if its

name had not been struck off.

(4) Subject to the provisions of sub-article

(3), the Court may give such directions and make

such provisions it deems appropriate for placing

the organisation and all other interested parties in

the same position as they were before the name of

the organisation had been struck off. The

Registrar shall forthwith proceed to publish a

notice in the Gazette and in a daily newspaper

circulating wholly or mainly in Malta that the

name of the organisation has been restored to the

Register.

(5) Notwithstanding that the name of the

organisation has been struck off the Register in

terms of the preceding provisions of this article,

the liability, if any, of every promoter, founder,

administrator, member, of the organisation shall

continue and may be enforced as if the name of

the organisation had not been struck off the

Register.

69. Amendments

to

this

Schedule

introduced by means of the Voluntary

Organisations (Amendment) Act, 2018, requiring

statements to be made in the constitutive

instrument or the statute of an organisation which

were not required prior to the coming into force

of the aforementioned Act, shall not be binding

on those organisations which already existed prior

to the coming into force of the Act. Such

organisations are required to introduce such

statements in their constitutive instrument or

statute in conformity with the provisions of the

Voluntary Organisations Act within five (5) years

of the coming into force of the Voluntary

Organisations (Amendment) Act, 2018.".

Part III - Amendments to the Public Collections Act

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 106 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

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

with the Public Collections Act, hereinafter in this Part referred to as the

Collections Act.

"the principal Act".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 107 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 2 of the principal Act shall be amended as follows: Amendment of

article 2 of the

principal Act.

(a)

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

(i) before the definition "charitable purpose"

there shall be added the following new definition

" "benevolent" shall mean a social purpose or

other public benefit or public purpose;";

(ii) the definition "charitable purpose" shall be

substituted by the following new definition

" "charitable purpose" shall mean a social

purpose or other public benefit or public purpose;";

(iii) the definition "collection" shall be amended

as follows

A. immediately after the words "or by

means of any advertisement," thereof, there shall

be added the words "or by the use of technological

means, including the internet or any social media

channel on any platform of any type,";

B. paragraph (b) thereof

shall

be

substituted by the following

"(b) collections made in a church or in

a place of public worship in the ordinary

course for the upkeep, embellishment or

improvement thereof or for services held

therein, and collections for the purposes

declared in writing to be benevolent by the

competent local or international religious

authorities;";

C. immediately after paragraph (d) thereof,

there shall be added the following new paragraph

"(e) collections made by any

organisation

enrolled

with

the

Commissioner

for

Voluntary

Organisations in terms of the Voluntary

Organisations Act for as long as it

remains so enrolled;";

(iv) in the definition "public place", immediately

after the words "or has access" there shall be added the

words "including by the use of technological means, such

as the internet or any social media channel on any platform

of any type";

(b) sub-article (2) thereof shall be re-numbered as sub-

article (3);

(c)

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

be added the following new sub-article

"(2) For the purposes of this Act, the

terms "social purpose", "public benefit" or

"public purpose" shall have the meaning

assigned to them in article 2 of the Voluntary

Organisations Act."; and

(d) immediately after sub-article (3) thereof, as re-

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

"(4) For the purposes of this Act, when a purpose

is declared to be benevolent, a copy of such declaration

may be requested by any person and the person responsible

for such collection shall produce the same within a

reasonable time. In case of default the Commissioner of

Police may demand the same from the competent religious

authority which shall deliver the same within ten working

days and the Commissioner shall release the same to the

person requesting it.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 108 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Sub-articles (2) and (3) of article 5 of the principal Act Amendment of

article 5 of the

shall be substituted by the following

principal Act.

"(2) A licence shall only be granted for a social purpose

or other public benefit or public purpose, or for a purpose

approved by the Minister, and shall only apply to a social

purpose or other public benefit or public purpose or such

purpose approved by the Minister. No licence shall be granted

for a general purpose or for more than one purpose. The

application for a licence must be signed by at least three

individuals.

(3) A licence shall only be granted for specific events or

for a stated period not exceeding twelve months and shall lapse

on the taking place of the specified event or the lapse of the

stated term.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 109 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

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

article to the

be added the following new article

principal Act.

5A. Any collection made by -

"Additional

rules for

(a)

any person, not being an

certain types

of

enrolled voluntary organisation, for any

collections.

social or public benefit purposes;

(b) any non-enrolled voluntary

organisation for its own purposes; or

(c)

any of those referred to in

paragraphs (a) or (b) for the benefit of

another voluntary organisation, whether

enrolled or not,

shall, in addition to this Act, also be subject to

any guidelines issued by the Commissioner

for Voluntary Organisations depending on the

type of collection made, including electronic

or internet based appeals and crowd funding.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 110 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 3 of the First Schedule to the principal Act shall be Amendment of

the First

substituted by the following

Schedule to the

principal Act.

"3.

Purpose of the collection or specific event".

Part IV - Amendments to the Notarial Profession and

Notarial Archives Act

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 111 Amendments to the Notarial Profession and Notarial Archives Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

This Part amends and shall be read and construed as one

with the Notarial Profession and Notarial Archives Act, hereinafter in

this Part referred to as "the principal Act".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 112 Amendment of article 50 of the follows: principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 50 of the principal Act shall be amended as

(a)

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

(i) in paragraph (g) thereof, immediately after

the words "on immovable property" there shall be added

the words "and any act notifying the termination thereof";

(ii) paragraph (m) thereof shall be substituted by

the following

"(m) subject to the provisions of sub-

article (9), any act whereby a foundation is

established or terminated and any act whereby

a new endowment, other than an endowment

under a scheme which is registered under the

Second Schedule of the Civil Code, is granted

to a foundation;";

(b) sub-article (9) thereof shall be substituted by the

following

"(9) In the case of a deed creating a

foundation, the note shall contain the date and

nature of the act, the name of the foundation

and the designation of the founder in

accordance with article 28(1)(c) and in the case

of a new endowment, the date and nature of the

act, the name of the recipient foundation and

the designation of the grantor in accordance

with article 28(1)(c)

Provided that, in the case of a private

foundation, the Notary shall have no obligation

and shall not register such notes if the founder

or grantor has exempted him from so doing in

the relevant deed and the administrator is a

person who is authorised or not required to be

authorised to act as an administrator for a

private foundation in terms of article 43 of the

Trusts and Trustees Act."; and

(c)

immediately after sub-article (9) thereof, as

substituted, there shall be added the following new sub-articles

"(10) When a foundation which is

registered with the Registrar is terminated, the

administrators shall enrol in the records of a

Notary the relative form presented to the

Registrar for Legal Persons, and the note

delivered to the Director of Public Registry by

the Notary shall only contain the date and

nature of the act and a reference to the original

note delivered to the Director of Public

Registry on the establishment of such

foundation

Provided that when the Notary who

published the deed establishing the foundation

was exempted by the founder from delivering

the note regarding such establishment to the

Director of Public Registry, the administrators

and the Notary shall not be bound as aforesaid.

(11) In this article "private foundation"

shall mean a foundation as defined in article

31B of the Second Schedule of the Civil

Code.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 113 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 51 of the principal Act, as Addition of new

deleted, there shall be added the following new article

51A. (1) When there is a transaction

relating to a cell of an organisation under article

20A or under article 20B of the Second Schedule to

the Civil Code which results in a change in legal

ownership of any immovable property or real rights

over such property, such event shall be recorded in a

public deed before a Notary Public executed by the

administrators or their delegates of -

(a)

the transferring organisation and,

if different, those of recipient organisation

under the said article 20A; or

(b) the organisation of which the cell

formed part and those of the new organisation

under the said article 20B, as the case may be,

and the Notary shall, within fifteen (15) days from

the date of the act, deliver to the Director of the

Public Registry a note in accordance with article

50. (2) (a)

Where a beneficial owner of

immovable property which is held by a private

foundation, transfers or otherwise disposes of the

beneficial ownership of such property inter vivos to

a third party, such a transaction shall be deemed to

constitute a transfer of shares for the purposes of the

Duty on Documents and Transfer Act, and for the

purposes of article 5(1) of the Income Tax Act.

(b) Where a change in the ownership

of immovable property does not involve a change in

the beneficial ownership thereof, such change shall

not be deemed to constitute a transfer of shares for

the purposes of the Duty on Documents and

Transfers Act, and for the purposes of article 5(1) of

the Income Tax Act but shall nevertheless be

recorded as required in this article.

(c)

For the purposes of article 49 of

the Duty on Documents and Transfers Act,

"transferor" and "transferee" in a transfer of

immovable property inter vivos shall be deemed to

include a private foundation acting for the benefit of

either the transferor or the transferee of the

beneficial ownership of such immovable property,

or of both such transferor and transferee.

(3) In this article

"beneficial owner" means the person

beneficially entitled to the shares under a

private foundation;

"private foundation" shall mean a

foundation as defined in article 31B of the

Second Schedule of the Civil Code.".

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 114 Substitution of article 68B of following: the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Article 68B of the principal Act shall be substituted by the

68B. (1) Notarial deeds creating purpose

foundations shall be accessible to any person

requesting to have access thereto even if the

purpose is not exclusively social or public benefit.

(2) The accessibility of notarial deeds

creating private foundations shall be governed by

the provisions of article 31B of the Second

Schedule to the Civil Code.".

Part V - Amendment to the Arbitration Act

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 115 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

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

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

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 116 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 15A of the principal Act there Addition of new

shall be added the following new article

15B. (1) It shall be lawful for a founder to

insert an arbitration clause in a foundation statute

when creating the foundation or by subsequent

amendment if he has the power to amend the

statute. In such event such clause shall be binding

on all administrators, protectors, members of a

supervisory council, and beneficiaries, if any,

under the foundation in relation to all matters

arising under or in relation to the foundation. It

shall not be lawful for the administrators or other

persons having the power to amend the statute of a

foundation to insert an arbitration clause by

amending its statute.

(2) The provisions of sub-article (1) shall

not prejudice the right of a party to seek directions

from the Civil Court (Voluntary Jurisdiction

Section) in terms of the Second Schedule to the

Civil Code and the right of the party shall not be

limited by any such clause. Notwithstanding the

provisions of this Act, the said Court shall not be

bound to stay proceedings in terms of article 15(3)

or otherwise, but shall enjoy a discretion to do so

until such time as it determines that the matter is of

a contentious nature, in which case it shall stay the

proceedings and shall refer the parties to

arbitration.".

Part VI - Amendments to the Companies Act

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 117 Amendments to the Companies Act. principal Act". — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

This Part amends and shall be read and construed as one

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

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 118 Amendment of article 30 of the deleted. principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Sub-article (3) of article 30 of the principal Act shall be

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 119 Addition of new article to the principal Act. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

Immediately after article 127 of the principal Act there

shall be added the following new article

Malta Government Gazette — Act 2018 36 · Gazzetta tal-Gvern ta’ Malta Nru. 20,083 – 06.11.2018 — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act

Art. 127A "Shares in companies held by private foundations, including those with segregated cells. — ACT No. XXXVI of 2018 AN ACT to amend the Voluntary Organisations Act and to make consequential and other amendments to the Civil Code and to the Second Schedule to the Civil Code, the Public Collections Act, the Notarial Profession and Notarial Archives Act, the Arbitration Act Open official source

(1) Except as provided for in this

article, the provisions of the preceding article shall

not apply to foundations and -

(a)

a private foundation as an

organisation with legal personality; or

(b) when the foundation is a multi-

cell foundation, a segregated cell in a private

foundation which constitutes a distinct

patrimony administered by the private

foundation,

shall be considered to be the holder of any shares

registered in the name of the private foundation or

in the name of the foundation with reference to a

cell, and beneficial owners shall not be taken into

account and shall be disregarded for determining

the status of the company for the purpose of

Chapter XII of this Title.

(2) (a)

Where a beneficial owner of

shares in a company, which are held by a private

foundation, transfers or otherwise disposes of the

beneficial ownership of such shares inter vivos to a

third party, such a transaction shall be deemed to

constitute a transfer of shares for the purposes of

the Duty on Documents and Transfer Act, and for

the purposes of article 5(1) of the Income Tax Act.

(b) Where a change in the registered

holder of shares in a company does not involve a

change in the beneficial ownership thereof, such

change shall not be deemed to constitute a transfer

of shares for the purposes of the Duty on

Documents and Transfers Act, and for the purposes

of article 5(1) of the Income Tax Act, but shall

nevertheless be noted in the register of members.

(c)

For the purposes of article 49 of

the Duty on Documents and Transfers Act,

"transferor" and "transferee" in a transfer of shares

inter vivos shall be deemed to include a private

foundation acting for the benefit of either the

transferor or the transferee of the beneficial

ownership of such shares, or of both such

transferor and transferee.

(3) When a transaction takes place relating

to a cell of an organisation under article 20A or

under article 20B of the Second Schedule to the

Civil Code and the relevant private foundation, or

the foundation with reference to a cell, is the

registered holder of any shares in a company, any

such transaction shall be treated as a change in the

registered holder of the shares in a company

without any change in the beneficial owner of the

shares. As such transactions result in a change in

legal ownership of any shares in a company, the

administrators, or their delegates, of -

(a)

the transferring organisation and,

if different, those of recipient organisation

under the said article 20A; or

(b) the organisation of which the cell

formed part and those of the new organisation

under the said article 20B,

as the case may be, shall, within fifteen (15) days

from the date of the act, deliver to the Registrar a

form notifying him of the transfer of such shares

from one foundation to the other, or from the

foundation to a new organisation, as the case may

be.

(4) The same principles above stated shall

apply when the transferor and, or transferee are

involved in a partnership en commandite the

capital of which is divided into shares.

(5) In this article

"beneficial owner" means the person

beneficially entitled to the shares under a

private foundation;

"private foundation" shall mean a

foundation as defined in article 31B of the

Second Schedule of the Civil Code.".

120. Article 384 of the principal Act shall be substituted by the

384. Articles 385 to 389 shall apply to all

companies, commercial partnerships, as well as

other legal organisations enjoying legal personality

which have characteristics similar to companies

and commercial partnerships constituted or

incorporated outside Malta (hereinafter in this

Chapter and in Chapter III of this Part referred to as

"oversea companies") which establish a branch or

place of business within Malta.".

Part VII - Repeal of the Amalgamation of Organisations

Regulations

121. The Amalgamation of Organisations Regulations are

hereby repealed.

Passed by the House of Representatives at Sitting No. 153 of the

31st October, 2018.

CLAUDETTE BUTTIGIEG

Deputy Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€20.25