ACT No. LX of 2020 AN ACT to provide for the establishment of an Office to be known as the National Foreign Direct Investment Screening Office, and for the exercise by or on behalf of that Office of regulatory functions regarding the screening mechanism of foreign direct investments in

I assent.

(L.S.)

GEORGE VELLA

President

18th December, 2020

ACT No. LX of 2020

AN ACT to provide for the establishment of an Office to be known

as the National Foreign Direct Investment Screening Office, and for

the exercise by or on behalf of that Office of regulatory functions

regarding the screening mechanism of foreign direct investments in

Malta on grounds of security or public order, and to make provisions

with respect to matters ancillary thereto or connected therewith.

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

consent of the House of Representatives, in this present Parliament

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

(1) The short title of this Act is the National Foreign Direct

Investment Screening Office Act, 2020.

(2)

This Act shall come into force on the 11th October, 2020.

(Articles 11 and 12)

Activities

(a) critical infrastructure, whether physical or virtual, including

energy, transport, water, health, communications, media, data

processing or storage, aerospace, defence, electoral or financial

infrastructure, and sensitive facilities, as well as land and real estate

crucial for the use of such infrastructure;

(b) critical technologies and dual use items as defined in point 1

of Article 2 of Council Regulation (EC) No. 428/2009 (15), including

artificial intelligence, robotics, semiconductors, cybersecurity,

aerospace, defense, energy storage, quantum and nuclear technologies,

as well as nanotechnologies and biotechnologies;

(c) supply of critical inputs, including energy or raw materials, as

well as food security;

(d) access to sensitive information, including personal data, or the

ability to control such information; or

(e)

the freedom and pluralism of the media.

Factors to be considered

(a) whether the foreign investor is directly or indirectly

controlled by the government, including state bodies or armed forces,

of a third country, including through ownership structure or significant

funding;

(b) whether the foreign investor has already been involved in

activities affecting security or public order in a Member State; or

(c) whether there is a serious risk that the foreign investor

engages in illegal or criminal activities.

Passed by the House of Representatives at Sitting No. 411 of the

15th December, 2020.

CLAUDETTE BUTTIGIEG

Deputy Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€1.89

In this Act, unless the context otherwise requires

"beneficial owner" means any natural person or persons

who ultimately own or control the customer and, or the natural

person or persons on whose behalf a transaction or activity is

being conducted, and

(a) in the case of a body corporate or a body of

persons, the beneficial owner shall consist of any natural

person or persons who ultimately own or control that body

corporate or body of persons through direct or indirect

ownership of ten percent (10%) plus one (1) or more of the

shares or more than ten percent (10%) of the voting rights

or an ownership interest of more than ten percent (10%) in

that body corporate or body of persons, including through

bearer share holdings, or through control through other

means, other than a company that is listed on a regulated

market which is subject to disclosure requirements

consistent with European Union law or equivalent

international

standards

which

ensure

adequate

transparency of ownership information

Provided that a shareholding of ten percent

(10%) plus one (1) share or more, or the holding of an

ownership interest or voting rights of more than ten percent

(10%) in the customer shall be an indication of direct

ownership when held directly by a natural person, and of

indirect ownership when held by one (1) or more bodies

corporate or body of persons or through a trust or a similar

legal arrangement, or a combination thereof

Provided further that if after having exhausted all

possible means and provided there are no grounds of

suspicion, no beneficial owner in terms of this paragraph

has been identified, subject persons shall consider the

natural person or persons who hold the position of senior

management official or officials to be the beneficial

owners, and shall keep a record of the actions taken and

any difficulties encountered to determine who the

beneficial owner is in terms of this paragraph;

(b) in the case of trusts, the beneficial owner shall

consist of

(i)

the settlor or settlors;

(ii)

the trustee or trustees;

(iii) the protector or protectors, where applicable;

(iv) the beneficiaries or the class of beneficiaries, as

may be applicable; and

(v) any other natural person exercising ultimate

control over the trust by means of direct or indirect

ownership or by other means;

(c) in the case of legal entities such as foundations and

legal arrangements similar to trusts, the beneficial owner shall

consist of the natural person or persons holding equivalent or

similar positions to those referred to in paragraph (b);

"Board" means the Board established in accordance to sub-

article 5(2);

"Chairperson" means the Chairperson of the Board;

"Commission" means the Commission of the European

Union as established in the Treaty of the European Union;

"cooperation mechanism" means such mechanism as

established in articles 6 and 7 of the Regulation, as the case may

"Council" means the Council of the European Union as

established in the Treaty of the European Union;

"European Union" shall have the same meaning assigned

to it by article 2 of the European Union Act;

"foreign direct investment" means an investment of any

kind by a foreign investor aiming to establish or to maintain

lasting and direct links in order to carry on an economic activity

in Malta, including investments which enable effective

participation in the management or control of a company

carrying out an economic activity and any investments made

pursuant to a public procurement process;

"foreign direct investment undergoing screening" means a

foreign direct investment undergoing a formal assessment or

investigation pursuant to the screening mechanism;

"foreign investor" means a natural person or an

undertaking of a third country intending to make or having made

a foreign direct investment in Malta;

"General Data Protection Regulation" means Regulation

(EU) 2016/679 of the European Parliament and of the Council of

27 April 2016 on the protection of natural persons with regard to

the processing of personal data and on the free movement of

such data, and repealing Directive 95/46/EC;

"group company" means, in relation to any company, any

body corporate which is that company’s subsidiary or parent

company, or a subsidiary of that company’s parent company, and

the definition "group" shall be construed accordingly as well as

meaning a parent undertaking and all its subsidiary undertakings;

"Malta" has the same meaning as is assigned to it by article

124 of the Constitution;

"management or control" means having the possibility of

exercising decisive influence on an undertaking, in particular

(a) through ownership or the right to use all or part

of the assets of an undertaking; or

(b) through rights or contracts which confer

decisive influence on the composition, voting or decisions

of the organs of an undertaking; provided that even persons

or undertakings not holding such rights or entitled to such

rights under the contract concerned are deemed to have

acquired control if they have the power to exercise the

rights deriving therefrom;

"Member State" means a member state of the European

Union;

"Minister" means the Minister responsible for investment

and includes, to the extent of the authority given, any person

authorised to act on his behalf for any purpose of this Act;

"Office" means the National Foreign Direct Investment

Screening Office established in accordance to article 5(1);

"procurement" means acquisition by means of a public

contract of works, supplies or services by one or more

contracting authorities from economic operators chosen by those

contracting authorities, whether or not the supplies, works or

services are intended for a public purpose;

"Regulation" means Regulation (EU) 2019/452 of the

European Parliament and of the Council of 19 March 2019

establishing a framework for the screening of foreign direct

investments into the European Union;

"screening" means a procedure intended to assess,

investigate, authorise, condition, prohibit or unwind foreign

direct investments;

"screening decision" means a measure adopted in

application of the screening mechanism;

"screening mechanism" means an instrument of general

application, such as a law or regulation, and accompanying

administrative requirements, implementing rules or guidelines,

setting out the terms, conditions and procedures to assess,

investigate, authorise, condition, prohibit or unwind foreign

direct investments on grounds of security or public order;

"Tribunal" means the Administrative Review Tribunal as

established by means of the Administrative Justice Act;

"third country" means any country which is not a Member

State of the European Union;

"undertaking of a third country" means an undertaking

constituted or otherwise organized under the laws of a third

country;

"unwind" means the revocation, modification and, or

termination of a foreign direct investment, or part thereof, by

means of an order adopted as part of the screening mechanism.

This Act implements the Regulation (EU) 2019/452 of the Implementation.

European Parliament and of the Council of 19 March 2019

establishing a framework for the screening of foreign direct

investments into the Union.

PART II

Applicability

(1) Subject to the provisions of sub-article (2), the Applicability of

provisions of this Act shall apply to foreign direct investments made or the Act.

planned to be made in Malta and to all persons involved in a foreign

direct investment, including foreign investors aiming to establish or to

maintain lasting and direct links in order to carry on an economic

activity in Malta, including investments which enable effective

participation in the management or control of a company carrying out

an economic activity.

(2)

This Act shall not apply to portfolio investments.

PART III

Establishment, Function and Conduct of Affairs of the National

Foreign Direct Investment Screening Office

(1) There shall be established an office to be designated as the

National Foreign Direct Investment Screening Office.

(2) There shall be a Board which shall direct and be responsible

for the affairs of the Office.

(3) The Board shall consist of a minimum of five (5) and a

maximum of seven (7) members to be appointed by the Minister, who

shall designate one (1) of the said members to be the Chairperson.

(4) (a) A person shall not be eligible to be appointed or to hold

office as Chairperson or as a member of the Board if he is

(i) a Minister, Parliamentary Secretary, a member of the

House of Representatives or a member of any local council;

(ii)

a Judge or a Magistrate of the Courts of Justice;

(iii) legally incapacitated;

(iv) has been declared bankrupt or had entered into a

composition agreement or arrangement with his creditors;

(v) has committed an offence involving fraud, or has

contravened any provision of law designed for protecting

members of the public against financial loss due to dishonesty,

incompetence or malpractice by persons involved in business

activities or in carrying on a profession, or has engaged in any

business practice appearing to the Minister to be deceitful or

oppressive or otherwise improper (whether unlawful or not) or

which otherwise reflects discredit on his methods of conducting

business or his profession; or

(vi) is otherwise not a fit and proper person to hold such

office.

(b)

In determining whether a person is a fit and proper

person under paragraph (a)(vi), the Minister shall have regard to that

person’s integrity, to his competence and soundness of judgment for

fulfilling the responsibilities of that office, to the diligence with which

he is fulfilling or is likely to fulfil those responsibilities and to whether

the interests of any person are, or are likely to be in any way threatened

by holding that office.

(c) Any person whom the Minister has appointed or

proposes to appoint as a member of the Board shall, whenever

requested by the Minister to do so, furnish to him such information as

the Minister considers necessary for the performance of the Minister’s

duties under paragraphs (a) and (b).

(5) Without prejudice to sub-articles (6) and (7), members of the

Board shall be appointed for a term of two (2) years, and may be re-

appointed for a further period or periods of two (2) years.

(6) A member of the Board may resign his office at any time by

giving notice in writing to the Minister.

(7) The Minister may at any time remove a member of the Board

on grounds of proved inability to perform his functions, bankruptcy or

neglect of duty or for any of the reasons listed in sub-paragraphs (i) to

(vi) of sub-article (4)(a).

(8) The quorum necessary for meetings of the Board shall be the

Chairperson and half of the remaining members forming part of the

Board.

(9) The Minister shall designate a person to act as the secretary of

the Board

Provided that the Minister or a representative on his behalf

may appoint a substitute secretary in the following cases

(a) in cases of urgency if the designated secretary is, for

whatsoever reason, not available to perform his duties; and

(b) in cases where the designated secretary abstains for

the same reasons that a member of the Board may abstain as

mentioned above.

(10) Every member of the Board shall have one (1) vote each and

the Chairperson shall be entitled to a casting vote.

(11) The Chairperson, the members of the Board and the Secretary

shall be paid such honorarium as the Minister may determine.

The Office shall be a body corporate having a distinct legal Distinct legal

personality.

personality 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.

The legal and judicial representation of the Office shall be

vested in the Chairperson of the Board

Provided that the Chairperson may, from time to time, appoint

any one or more of the Board members, or any one or more of the

officers or employees of the Office, to appear in the name and on

behalf of the Office in any judicial proceedings or on any act, contract,

instrument or other document whatsoever.

(1) Subject to any other provisions of this Act, the Board

may regulate its own procedure and set meetings in such a manner as it

deems proper.

(2)

The Board shall meet at least once (1) every calendar quarter.

(3) The Board may exercise its functions notwithstanding any

vacancy in its membership, as long as such vacancies do not exceed

three (3) in number.

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

proceedings of the Board shall be invalidated merely by reason of the

existence of any vacancy among the members.

(1)

The functions and duties of the Office shall be to

(a) establish and update a mechanism to screen foreign

direct investments carried out in Malta which may affect the

security or public order of Malta;

(b) establish and implement appropriate rules of

procedure to be followed in executing its obligations emanating

from this Act;

(c) commence ex officio investigations when deemed

necessary in accordance with this Act;

(d) act as the relevant body concerning screening of

foreign direct investment in Malta;

(e) carry out screening procedures of foreign direct

investments falling under this Act;

(f) assess, investigate, authorise, condition, prohibit or

unwind a foreign direct investment on grounds of security or

public order in Malta;

(g)

implement a screening decision as defined in this

(h) impose any obligation in order to ensure adherence

with conditions that may be imposed as part of a screening

decision;

(i) perform monitoring as part of a condition that may be

imposed as part of a screening decision;

(j) report annually to the Commission the foreign direct

investments that took place in Malta for the preceding calendar

year and the information provided to requests received from

Member States;

(k) provide to the Commission any information that may

be duly justified in terms of this Act and the Regulation;

(l) establish and implement the system by which Malta

shall participate in the cooperation mechanism established in the

Regulation;

(m) participate in the cooperation mechanism established

in the Regulation, as deemed necessary;

(n) liaise with responsible authorities of third countries

on issues relating to the screening of foreign direct investments;

(o) charge any such fee which may be deemed

reasonable and justifiable for the carrying out of the functions of

the Office;

(p) exercise such other functions and duties as may be

prescribed.

(2) In its deliberations on specific cases or investments, the

Office may require the input of persons engaged in the public sector.

Furthermore, the Office may also request appropriate expertise from,

or collaboration with, third parties, as it may deem necessary and may

enter into agreements with public entities in order to carry out its

functions in terms of sub-article (1)

Provided that persons engaged in the public sector shall be

obliged to provide any information that may be requested from them in

terms of this sub-article within ten (10) working days from receipt of

request.

(3) In the exercise of its powers and functions under this Act, the

Office shall have the right of access to all relevant information, and

may seek clarifications and explanations that it may deem necessary

for its deliberations and conclusions.

(4) Save as may be otherwise required for the purposes of this

Act, in the exercise of its powers and functions under this Act, the

Office shall act in a transparent and non-discriminate manner

Provided that in ensuring the transparency and non-

discrimination of the process, the Office shall not prejudice the

commercial sensitivity of the foreign direct investment.

(5) Any information which the Office may obtain in terms of this

Act shall be used only for the purpose for which it was originally

obtained.

(6) Save as may be otherwise required for the purposes of this

Act or any other applicable law, or in the course of a prosecution for

any offence committed in relation to this Act, or where ordered by the

Courts of Justice, or where the Prime Minister otherwise directs

(a) every person having an official duty or being

employed in the administration of this Act shall regard and deal

with all documents and information relating to matters

contemplated by or pursuant to the provisions of this Act as

secret and confidential and shall make and subscribe before a

Commissioner for Oaths a declaration on oath to this effect in the

form prescribed which shall be deposited with the State

Advocate;

(b) no such person shall be required to produce to or

before any court, tribunal, board, committee of enquiry or any

other authority, or to divulge to any court, tribunal, board,

committee or any other authority, any matter or thing coming to

his notice or being in his possession in the performance of his

duties under this Act.

(7) Notwithstanding the provisions of sub-article (6), the internal

auditor of the Office shall have access to any records and documents as

may be necessary for the performance of his duties, as the law may

allow.

(8)

Any person who, except as provided for or allowed under this

Act or for the purposes thereof, communicates or attempts to

communicate to any other person any matter or thing that came to his

attention or was in his possession in the performance of his duties as

an officer or employee of the Office in accordance to this Act, shall be

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

of not less than one thousand euro (€1,000) and not more than twenty

thousand euro (€20,000), or to imprisonment for a period not

exceeding six (6) months, or to both such fine and imprisonment.

Any officer or employee of the Office who has any direct or Conflict of

indirect interest in any foreign direct investment made or planned to be Interest.

made and where the officer or employee is involved in any manner in

the determinations made in terms of article 12, shall, as soon as this

comes to his knowledge, disclose the nature of his interest with the

Board, and the Board shall, at its sole discretion, decide whether the

officer or employee may be involved or otherwise in the process

leading to the mentioned determination

Provided that where an officer or employee does not disclose

such interest, the Board may at its sole discretion, suspend or dismiss

such an officer or employee and impose such penalty as it deems fit

while taking into consideration the level of interest of that officer or

employee in the foreign direct investment in question.

PART IV

Notification and the Screening Process

(1) In the following circumstances, foreign investors and all Notification of

persons involved in a foreign direct investment shall be obliged, prior foreign

investment.

to carrying out the investment or effecting any changes mentioned in

paragraphs (b), (c) or (d), to notify the Office with the investment and

provide information regarding the entity carrying out the investment

and any information which may be necessary for the proper

observance of this provision or which may be requested by the Office

(a) where an investment that affects any of the factors or

activities mentioned in the Schedule is planned to be carried out

in the future;

(b) where, having carried out an investment in Malta,

plan to change the business activity of the foreign investor to one

which affects any of the factors or activities mentioned in the

Schedule;

(c) where, having carried out an investment in Malta

which affects any of the factors or activities mentioned in the

Schedule, the ownership structure of the investor changes such

that at least ten percent (10%) is owned by foreign investors; or

(d) where, having carried out an investment, the direct or

indirect controlling interest of the company or the group

company changes and passes onto a foreign investor.

(2)

The information referred to in sub-article (1) shall include

(a) the ownership structure of the foreign investor and of

the undertaking in which the foreign direct investment is planned

to be made or has been made, including information on the

ultimate investor and, or beneficial owner and participation in

the capital;

(b) the approximate value of the foreign direct

investment;

(c) the products, services and business operations of the

foreign investor and of the undertaking in which the foreign

direct investment is planned or has been completed;

(d) the jurisdictions, including Member States, in which

the foreign investor and the undertaking in which the foreign

direct investment is planned or has been completed conduct

relevant business operations;

(e)

the funding of the investment and its source;

(f) the date when the foreign direct investment is

planned to be completed or has been completed; and

(g) any other information as the Office may reasonably

require for the proper execution of its functions in accordance

with this Act.

(3) Any undertaking, organization, foundation or other entity

wherein at least ten percent (10%) of its share is owned by a foreign

investor and, or where the beneficial owner of the foreign investor is a

third country national or an undertaking of a third country and, or

which has any direct or indirect controlling interest by a foreign

investor and which plans to carry out any investment mentioned in

sub-article (1) shall, for the purposes of this Act, be subject to the

obligation stated in sub-article (1).

(4) For the purposes of sub-article (3), a foreign investor’s

proportion of the aggregate ownership in an undertaking, organization,

foundation or other entity shall include any shares owned by

(a) an undertaking, organization, foundation or other

entity belonging to the same foreign investor;

(b) an undertaking, organization, foundation or other

entity belonging to the same group company as the foreign

investor; or

(c) a member of the foreign investor’s family, who is

related to the foreign investor by consanguinity or affinity in the

direct line in any degree or in the collateral line up to the third

degree inclusively or by an undertaking, organization,

foundation or other entity over which such a family member

exercises authority.

(1) The Office shall upon receipt of the notification mentioned Screening

in article (5) and not later than five (5) working days from the process.

mentioned receipt, determine whether the foreign direct investment

shall be subject to screening.

(2) In reaching its decision, the Office may request any necessary

additional information from the foreign investor and may seek the

clarifications and explanations that it may deem necessary for its

deliberations and conclusions. The process initiated in terms of sub-

article (1) and the time-frame established therein shall be suspended

until all the information and clarifications requested are duly provided

to the Office.

(3) Saving that provided in sub-article (2), where the Office

concludes that the foreign direct investment shall not be subject to

screening, it shall, within five (5) working days from the date of its

decision, inform the foreign investor of its decision.

(4) Where the Office concludes that the foreign direct investment

shall be subject to screening, according to the non-exhaustive list of

factors and activities mentioned in the Schedule, it shall inform the

foreign investor within five (5) working days from the date of its

decision, trigger the cooperation mechanism, and shall within sixty

(60) calendar days from the date of the decision rendering the

investment subject to screening, determine whether the foreign direct

investment may affect the security or public order of Malta

Provided that where it deems necessary, the Office may

extend the period required to determine whether the foreign direct

investment may affect security or public order of Malta.

(5) In reaching the decision mentioned in sub-article (4), the

Office may request any additional information that may be required

from the foreign investor and the process initiated in terms of the same

sub-article and the time-frame established therein shall be suspended

until all the information requested is duly provided.

(6) Where, following the process conducted in terms of sub-

article (4), the Office concludes that the foreign direct investment does

not affect the security or public order of Malta, it shall, within five (5)

working days from the date of its decision, inform the foreign investor

with the decision.

(7) Where the Office concludes that the foreign direct investment

affects the security or public order of Malta, it may condition, prohibit

or unwind such an investment, as the case may be, and shall inform the

foreign investor in writing with its decision. The notification with the

decision shall include a simple reasoned justification.

(8) Where an investment is conditioned, prohibited or unwound

pursuant to a decision of the Office in terms of sub-article (7), the

foreign investor and any other person, undertaking, organization,

foundation or other entity having an interest in the said investment

shall not be entitled to claim any compensation or reimbursement for

whatsoever reason.

(9) In conducting the processes mentioned in sub-articles (1) and

(4), the Office may obtain further information and statements from

other public authorities, to the extent deemed necessary.

(10) Where the information provided by the foreign investor is

considered by the Office as being incorrect, or where the foreign

investor, having been informed that the information provided is

incomplete, fails to provide the requested information within twenty

(20) days from the day of service of a request by the Office, the

screening process shall cease, the application shall be withdrawn and

the investment shall be unwound. The foreign investor and any other

person, undertaking, organization, foundation or other entity having an

interest in the said investment shall not be entitled to any form of

compensation or reimbursement, for whatsoever reason.

(1) Where any notice, decision or other instrument or

document whatsoever is required or authorised to be served or given in

accordance to this Act, it may be served or given in any of the

following manners

(a) by delivering it to the person on whom it is to be

served or to whom it is to be given;

(b) by leaving it at the usual or last known place of abode

of that person, or at his place of work, or if such person has

furnished an address for service, at that address;

(c) by sending it by means of a registered letter

addressed to that person at the place of abode or the address for

service aforesaid;

(d) in the case of a body corporate or other body of

persons, by delivering it to an officer or employee thereof at the

registered or principal office, or by sending it by means of a

registered letter addressed to such body at that office; or

(e) in any case in which it is not reasonably possible to

effect service in any of the foregoing manners, whether on all or

on any one or more of the persons on whom service is to be made

or notice is to be given, by affixing the notification, decision or

any other instrument or document to be served or delivered in a

conspicuous place on the property to which it relates and keeping

it so affixed for five (5) working days and by publishing the said

notification, decision or any other instrument or document in a

local newspaper. Where the notification, decision or any other

instrument or document to be served or delivered is affixed on

the property but is removed before the expiry period of five (5)

working days, the re-affixing of the said notification, decision, or

any other instrument or document shall only be for the remaining

period after the document was removed.

PART V

Executive Powers

Where an investment is subjected to a condition or a number Imposition of

of conditions as permitted by article 12, the Office shall serve the conditions.

foreign investor with its decision and shall allow reasonable time for

the foreign investor to take all necessary measures in order to satisfy

the said conditions

Provided that should the foreign investor fail to satisfy the

conditions imposed by the Office within the prescribed time, the

Office shall prohibit or unwind the foreign direct investment.

(1) Where an investment is declared unwound, the Office Unwinding of

shall serve the foreign investor with its decision and shall allow investments.

reasonable time for the foreign direct investor to reverse or modify any

such decision affecting the investment.

(2) Where a foreign investor fails to provide sufficient proof that

any such decision affecting the investment according to sub-article (1)

has been revoked, the Office shall have the power, following the lapse

of sixty (60) calendar days from date of service of the decision

mentioned in sub-article (1), to commence any judicial proceedings

which may be deemed necessary in terms of the Code of Organization Cap. 12.

and Civil Procedure requesting a Civil Court of competent jurisdiction

to revoke any such decision as may be required in order to prohibit or

unwind the foreign direct investment, as the case may be.

Where any of the persons involved in a foreign direct

investment fails to notify the Office in terms of article 11, the

investment shall automatically be considered to be in violation of the

provisions of this Act and the Office may, at its own discretion, take all

necessary measures to unwind the said investment.

PART VI

Administrative penalties

(1) The Office may, by notice served on the offender,

impose administrative penalties amounting to

(a) not less than five thousand euro (€5,000) and not

exceeding fifty thousand euro (€50,000) on any person for

failure to notify the Office in accordance with article 11;

(b) not less than one thousand euro (€1,000) and not

exceeding five thousand euro (€5,000) on any person who fails

or refuses to provide information in accordance with articles 11

and 12;

(c) not less than five thousand euro (€5,000) and not

exceeding one hundred thousand euro (€100,000) on any party

who provides incorrect, inaccurate or incomplete information, in

accordance with articles 11 and 12.

(2) Any person who being requested to take any necessary

measures in terms of articles 13 and 14, fails to carry out such

measures within the time established by the Office for such purpose,

shall be liable to an administrative penalty of five hundred euro (€500)

for every day that elapses from the date stipulated by the Office

Provided that the imposition of any administrative penalty

shall be without prejudice to any other right or remedy which may be

competent to the Office in terms of this Act.

(3) The notice relating to the administrative penalty imposed

under sub-articles (1) and (2) shall specify

(a)

the date and nature of the offence;

(b) a summary of the facts upon which the charge of the

offence is based;

(c) any other matters that the Office may deem relevant

to the imposition of the penalty;

(d)

the amount of the penalty due; and

(e) the offender’s right to appeal the administrative

decision according to article 17,

and shall be endorsed by a reference stipulating the provisions of this

article.

(4) Any administrative penalty to which a person becomes liable

in terms of this Act shall be due and payable by that person, and that

person shall not be relieved from a higher or from a further penalty to

which he may have become or may become liable in terms of the

relevant provisions of this Act.

(5) Penalties under sub-article (2) shall accrue until sufficient

proof is provided that the necessary measures were taken effectively.

(6) In special cases, where there are cogent and compelling

reasons to do so, the Office may waive compulsory penalties wholly or

in part.

(7) Administrative penalties shall be due to the Office as a civil

debt, and the provisions of article 466 of the Code of Organization and

Civil Procedure shall mutatis mutandis apply thereto.

PART VII

Appeal

(1) The Administrative Review Tribunal established by Right of appeal.

article 5 of the Administrative Justice Act shall be competent to hear Cap. 490.

and determine

(a) objections made by any person aggrieved by a

decision taken according to article 12;

(b) objections made by any person aggrieved by an

administrative penalty imposed on that person in terms of this

Act

Provided that unless otherwise prescribed by law, an appeal

application lodged in terms of this sub-article to the Administrative

Review Tribunal shall be filed within twenty (20) days from the

receipt of the decisions mentioned in paragraphs (a) and, or (b).

(2) Notwithstanding anything contained in the Administrative Cap. 490.

Justice Act, the Administrative Review Tribunal shall serve the appeal

applications filed in its registry on the respondent without delay. The

respondent shall have the right to file a written reply within twenty

(20) days from the date of service. The Tribunal shall subsequently set

a date for hearing within eight (8) working days from the filing of a

reply by the respondent or following the lapse of twenty (20) days

from when the respondent is served with the appeal, even if no reply is

filed by the respondent within such time-frame. The Tribunal shall,

after appointing the appeal application for hearing, decide on its merits

after receiving any evidence it deems fit, within the shortest time

possible, but not later than six (6) months from the day when the

application has been duly notified.

(3) There shall be a right of appeal on points of law in accordance

with the provisions of Part IV of the Administrative Justice Act from

decisions of the Administrative Review Tribunal under sub-article (1)

and such appeal shall be to the Court of Appeal (Inferior Jurisdiction)

as constituted in accordance with article 41(6) of the Code of

Organization and Civil Procedure.

(4) The right of appeal mentioned in sub-article (3), shall be

exercised within twenty (20) days from the date of the Tribunal’s

decision and a copy of the appeal application shall be served on the

respondent, who may file a written reply within twenty (20) days from

the date of service.

(5) In the absence of an appeal application in terms of sub-article

(1)(b), the decision of the Office to impose administrative penalties

shall become final and shall constitute an executive title for the

purpose of Title VII of the Code of Organization and Civil Procedure

as if the decision had been delivered by a judgment of a Court of Civil

jurisdiction.

PART VIII

Miscellaneous Provisions

In the performance of its functions and duties under this Act,

the Office shall observe the obligations imposed by data protection

legislation, including the provisions of the General Data Protection

Regulation.

The Minister may, in order to achieve the purposes of this

Act, make regulations and issue such orders as may be necessary in

order to give effect to the provisions of this Act.