ACT No. XLIII of 2021 AN ACT to provide for the amendment of various laws to facilitate the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences and to make ancillary and consequential provisions thereto.

I assent.

(L.S.)

GEORGE VELLA

President

20th July, 2021

ACT No. XLIII of 2021

AN ACT to provide for the amendment of various laws to

facilitate the use of financial and other information for the

prevention, detection, investigation or prosecution of certain criminal

offences and to make ancillary and consequential provisions thereto.

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

consent of the House of Representatives, in this present Parliament

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

(1) The short title of this Act is the Various Laws Short title and

relating to the Facilitating of the Use of Financial and other scope.

Information (Amendment) Act, 2021.

(2) The scope of this Act is to transpose Directive (EU) 2019/

1153 of the European Parliament and of the Council of 20 June 2019

laying down rules facilitating the use of financial and other

information for the prevention, detection, investigation or prosecution

of certain criminal offences, and repealing Council Decision 2000/

642/JHA.

PART I

Amendments to the Criminal Code

This Part amends the Criminal Code and it shall be read

and construed as one with the Criminal Code, hereinafter in this Part

referred to as "the Code".

In the proviso to article 518 of the Code, the words "in

article 695." shall be substituted by the words "in article 695:" and

immediately thereafter there shall be added the following new

proviso

"Provided further that any designated competent national

authority designated in terms of any Directive or Regulation of the

European Union which has access to the acts and documents of the

courts of criminal justice may, if the requirements established in the

Directive or Regulation of the European Union are fulfilled, transmit

copies of such acts and documents of the court of criminal justice to

the requesting authority.".

Immediately after sub-article (4) of article 550A of the

Code there shall be added the following new sub-article

"(5) The Magistrate may, upon a request made by the

Financial Intelligence Analysis Unit, on a case by case basis and

where the information is necessary for the prevention, detection

and combating of money laundering, associate predicate

offences and terrorist financing, give access to the record of the

proceedings of the inquest and to all documents and material

objects exhibited in the course of the inquest including the

reports of the experts and deposition of witnesses

Provided that this information shall only be used by

the Financial Intelligence Analysis Unit for the purpose for

which it was provided.".

Immediately after article 701 of the Code there shall be

added the following new article

" Power of the

702. The Minister responsible for justice may

Minister to

make regulations to give effect to any arrangement,

make

including any treaty, convention, agreement or

regulations.

understanding, to which Malta is a party or is

otherwise applicable to Malta and which make

provision for sharing of information between

competent authorities.".

PART II

Amendments to the Prevention of Money Laundering Act

This Part amends the Prevention of Money Laundering Act Amendments to

and it shall be read and construed as one with the Prevention of the

of Money

Money Laundering Act, hereinafter in this Part referred to as "the Laundering

principal Act".

In article 14 of the principal Act, immediately after the Amendment to

definition "competent authority" there shall be added the following article

principal Act.

new definitions

" "designated authority" means the Executive Police,

the Attorney General and any Magistrate conducting

inquiries relating to the "in genere" in terms of article

546 of the Criminal Code;

"Europol" has the same meaning as assigned to it by

Regulation (EU) 2016/794 of the European Parliament and of

the Council of 11 May 2016;

"financial analysis" means the results of operational and

strategic analysis that has already been carried out by the Unit in

pursuance of its tasks and functions under article 16(1)(a) and

(f);

"financial information" means any type of information or

data, such as data on financial assets, movement of funds or

financial business relationships, which is already held by the

Unit to prevent, detect, and effectively combat money

laundering and terrorist financing, other than information or

data gathered or held by the Unit in relation to its supervisory

function under article 16(1)(c), article 16(1)(k)(ii), and article

26;

"law enforcement information" means any type of

information or data, including but not limited to information on

investigations, freezing or seizure of assets or other

investigative or provisional measures, and information on

convictions and on confiscation and criminal records, which is

already held by

(a) any designated authority in the context of

preventing, detecting, investigating, or prosecuting

criminal offences; and

(b) public authorities or private entities in the

context of preventing, detecting, investigating or

prosecuting criminal offences, and which is available to

designated authorities in line with the provisions of any

other law applicable to them;".

Article 27A of the principal Act shall be amended as

(a)

in the proviso to sub-article (1) thereof, the words

"Provided that the Unit" shall be substituted by the words

"Provided further that the Unit"; and

(b) immediately before the proviso to sub-article (1)

thereof, there shall be added the following new proviso

"Provided that the Unit may, in exceptional

and urgent circumstances and subject to operational

limitations, promptly exchange financial information or

financial analysis relevant for the processing or analysis of

information related to terrorism or organised crime

associated with terrorism, with any authority, body, or

agency of a Member State considered to have functions

equivalent or analogous to those of the Unit under article

16(1)(a) and (b):".

Immediately after article 27B of the principal Act there

shall be added the following new articles

(1) The Unit shall, in accordance with

the applicable provisions of this Act, and without

prejudice to the provisions of article 34(3), co-

operate with any designated authority and reply in a

timely manner, on a case-by-case basis, to reasoned

requests made by such designated authorities for

financial information and, or financial analysis,

where such information is necessary for the

prevention, detection, investigation or prosecution of

serious criminal offences

Provided that, for the purposes of this article,

the term "serious criminal offence" shall mean the

offences listed in Annex I to Regulation (EU) 2016/

794, tax evasion, and any other offence under the

National Interest (Enabling Powers) Act

Provided further that the provisions of article

34(4) shall mutatis mutandis apply in relation to any

financial information or financial analysis disclosed

by the Unit in terms of this sub-article.

(2) The Unit may refuse to disclose any

financial information or financial analysis pursuant

to sub-article (1) on the grounds as laid down under

article 34(2)(b) to (f), and it shall provide an

explanation for such a refusal.

(3) Any request received by the Unit pursuant

to sub-article (1) shall be recorded by the Unit,

which record shall include

(a)

the name and contact details of the

authority and of the officer or employee

requesting the information;

(b) the recipients of the results of the

query or search, in so far as possible;

(c)

the case reference number that the

requesting authority assigns to the case in

relation to which the request for information is

made;

(d) the subject matter of the request;

and

(e)

the manner in which the request

was executed, including the method used for

the dissemination of information or analysis

requested, whenever such request has been

acceded to.

(4) Records referred to in sub-article (3) shall

be kept for a period of five (5) years from the date on

which the request was received and shall be used

solely for the purpose of checking the lawfulness of

the processing of personal data.

(5) The Unit shall, upon a request from the

Information and Data Protection Commissioner,

make available any record as referred to in sub-

article (3).

(6) In addition and without prejudice to the

powers of the Unit under articles 30 and 30A, the

Unit may request, and designated authorities shall

disclose on a case-by-case basis, any law

enforcement information necessary for the

prevention, detection and combating of money

laundering, underlying criminal activity and terrorist

financing.

(1) Without prejudice to any restriction

which the Unit may be subject to, the Unit shall,

upon receipt of duly justified requests made by

Europol within the limits of its responsibility in the

performance of its tasks and on a case-by-case basis,

exchange any financial information and, or financial

analysis as if the request was received from a foreign

authority, body or agency having functions

equivalent or analogous to those of the Unit under

article 16(1)(a) and (b)

Provided that, in addition to the grounds as laid

down under article 34(2)(b) to (f), the Unit may

refuse to disclose any financial information or

financial analysis if

(a)

the provision of such information

or analysis would be contrary to the essential

interests of the security of Malta;

(b) the provision of such information

or analysis would jeopardise the safety of an

individual; or

(c)

the provision of such information

would disclose information relating to the

organisations or specific intelligence activities

in the field of national security.

(2) Where the Unit refuses to disclose

information in terms of sub-article (1), an

explanation shall be provided.

(3) The provisions of article 27C(3), (4) and

(5) shall mutatis mutandis apply in relation to the

record keeping of requests for information received

by the Unit from Europol pursuant to this article.".

10. Sub-article (2) of article 34 of the principal Act shall be

substituted by the following new sub-article

"(2) Without prejudice to the provisions of article 27A,

the Unit shall not be obliged to provide any information or

disclose any documents, and may refuse to do so if

(a) such information or document was received

by the Unit in carrying out its functions under article

16(1)(a), (b) and (k); or

(b) there are reasonable grounds to consider that

such disclosure could impede an inquiry, investigation or

any other proceeding in course in Malta; or

(c) providing such information or disclosing such

document may, in the opinion of the Unit, prejudice any

analysis; or

(d) due to exceptional circumstances, such

disclosure would be clearly disproportionate to the

legitimate interests of Malta or of a natural or legal person;

(e) such disclosure would not be in accordance

with fundamental principles of Maltese law; or

(f) such disclosure would be irrelevant with

regard to the purpose for which it has been requested

Provided that any refusal under this sub-article shall

be clearly explained to the body or authority requesting the

disclosure of the document or information.".

Passed by the House of Representatives at Sitting No. 487 of the

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€0.90