ACT No. XVII of 2022 AN ACT to amend the Fisheries Conservation and Management Act, Cap. 425 and to provide for the establishment of effective measures and for all other matters ancillary thereto.

I assent.

(L.S.)

GEORGE VELLA

President

29th November, 2022

ACT No. XVII of 2022

AN ACT to amend the Fisheries Conservation and Management

Act, Cap. 425 and to provide for the establishment of effective

measures and for all other matters ancillary 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 Fisheries Conservation

commencement.

and Management (Amendment) Act, 2022 and this Act shall be read

and construed as one with the Fisheries Conservation and Management

Act, hereinafter referred to as "the principal Act".

(2) This Act shall come into force on such date or dates as the

Minister responsible for fisheries and aquaculture may by notice in the

Gazette, establish, and different dates may be so established for

different provisions and different purposes of this Act.

Article 2 of the principal Act shall be amended as follows

(a) immediately before the definition "aquaculture

establishment" there shall be added the following new definition

" "aquaculture" means the rearing and cultivation of

fish by virtue of the use of technical means set up in order

to increase the production of the organisms concerned

beyond their natural environmental capacity, by which the

organisms remain property of the natural or legal person

throughout the period of rearing and cultivation, up to and

including the harvesting thereof;";

(b) the definition "aquaculture establishment" shall be

substituted by the following new definition

" "aquaculture establishment" means any area,

enclosure, impoundment, premises or structure set up or

used on land or in water intended for aquaculture;";

(c) the definition "commercial fishing"

shall

be

substituted by the following new definition

" "commercial fishing" means all fishing operations

with the exception of subsistence fishing and recreational

fishing;";

(d) the definition "convention" shall be substituted by

the following new definition

" "co nv enti on " m ean s an in ternat io nal t reat y,

agreement or other arrangement, other than "the Treaty"

as defined in the European Union Act;";

(e) the definition "convention fishing vessel" shall be

substituted by the following new definition

" "convention fishing vessel" means a fishing vessel

registered under the flag of a country which is a party to a

convention to which Malta is also a party and the fishing

vessels of which have been registered accordingly under

such convention;";

(f) the definition "fisheries protection officer" shall be

substituted by the following new definition

" "fisheries protection officer" means the Director,

any of the fisheries protection officers provided for under

article 4(3), and all members of the Malta Police Force and

the Armed Forces of Malta acting for the purposes of this

Act;";

(g)

the definition "fishing licence" shall be substituted by

the following new definition

" "fishing licence" means a document conferring on

its holder the right to use a certain fishing capacity for the

commercial exploitation of living aquatic resources;";

(h) immediately after the definition "fishing licence"

there shall be added the following new definition

" "fishing permit" means a fishing permit issued in

respect of a fishing vessel in addition to its fishing licence,

entitling it to carry out specific fishing activities during a

specified period and, or in a given area and, or for a given

fishery and to do so under specific conditions;";

(i) in the definition "fishing vessel", immediately after

the words "(including transhipment of fish) ancillary thereto,"

there shall be added the words "or which is registered or

authorised for so doing,";

(j) immediately after the definition "fishing waters"

there shall be added the following new definition

" "fish market trader or pitkal" means an operator

licensed to carry out wholesale auctions on behalf of a

licence holder at the public fish auction hall;";

(k) the definition "foreign fishing vessel" shall be

substituted by the following new definition

" "foreign fishing vessel" means any other fishing

vessel that does not fall under the definition of a local

fishing vessel;";

(l) in the definition "licenced fishing vessel", the words

"pursuant to articles 8, 9 or 10;" shall be substituted by the words

"in accordance with the provisions of this Act;";

(m) in paragraph (b) of the definition "local fishing

vessel", the words "persons ordinarily resident in Malta;" shall

be substituted by the words "persons ordinarily resident in

Malta:" and immediately thereafter there shall be added the

following new proviso

"Provided that a fishing vessel owned and

controlled as provided according to paragraphs (a) and (b)

shall in no case be considered a local fishing vessel if it is

registered outside the jurisdiction of Malta;";

(n) the definition "master" shall be substituted by the

following new definition

" "master" means, in relation to a fishing vessel, the

person who for the time being is in command or in charge

of the fishing operations on board the vessel;";

(o) in the definition "Minister", immediately after the

words "responsible for fisheries" there shall be added the words

"and aquaculture;";

(p) immediately after the definition "Minister", there

shall be added the following new definitions

" "operator" means any natural or legal person

carrying out any activities related to any stage of

production, processing, marketing, distribution and retail

chains of fisheries and aquaculture products;";

"person" includes a body or other association of

persons whether or not granted legal personality, in

accordance with the provisions of the Second Schedule

to the Civil Code;";

(q) immediately after the definition "record of fishing

vessels" there shall be added the following new definition

" "temporary immobilisation order" means an order given

by a Director or any other person delegated by him under this

Act, ordering a vessel to be seized and detained according to

such conditions as the Director may specify in the order;"; and

(r) the definition "transhipment of fish" shall be

substituted by the following new definition

" "transhipment" means the unloading of any

fisheries or aquaculture products on board a vessel with the

exception of relocation, pair trawling activities and fishing

operations involving joint action by two (2) or more local

fishing vessels;".

Article 4 of the principal Act shall be substituted by the Substitution of

article 4 of the

following new article

principal Act.

(1) This Act shall be administered by the

Director who shall be a public officer, appointed by the

Prime Minister, and who shall be responsible for

(a) the conservation of naturally occurring

fish stocks;

(b) the assessment of fish stocks and the

collection of statistics including details of fish

catches;

(c) the development and management of

fisheries;

(d) the maintenance of a register of fishing

vessels, their owners, masters, crew and any other

person working on them;

(e) the monitoring, control and surveillance

of fishing operations;

(f) the regulation of the conduct of fishing

operations including aquaculture and operations

ancillary thereto;

(g) the issue, variation, suspension and

revocation of fishing permits and licences for

fishing, and equipment used for fishing,

aquaculture, transhipment and other activities for

which permits or licences are required under this

Act;

(h) the collection of fees in respect of

fishing permits and licences, of entries in the fishing

vessels register, and for all other categories of

permits and licences mentioned in paragraph (g);

(i) the making of such reports to the

Minister as the latter may require or as the Director

shall consider appropriate;

(j) the taking of appropriate measures in

consultation with such other authority as may from

time to time be responsible for the environment and

for the safeguard against extinction of protected

species; and

(k) any other matters which shall require

administration under this Act.

(2) The Director may authorise in writing any public

officer to exercise any or all of the powers of the Director

under this Act either concurrently with him or in his

absence, subject to such conditions, including those

relative to territorial restrictions, as he may stipulate in

the authorisation.

(3) This Act shall be enforced by fisheries protection

officers as designated by the Director and acting under the

direction of the Director, and for that purpose fisheries

protection officers shall have the powers set out under this

Act.".

Sub-article (2) of article 5 of the principal Act shall be Amendment of

4. article 5 of the

amended as follows

principal Act.

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

following new paragraph

"(b) one member from among and nominated by the

holders of a fishing licence;"; and

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

following new paragraph

"(g) one member from the Environment and

Resources Authority nominated by the Minister

responsible for the environment;".

Article 7 of the principal Act shall be amended as follows

Amendment of

article 7 of the

principal Act.

(a) in sub-article (1) thereof, the words "owners,

captains" shall be substituted by the words "beneficial owners,

licence holders, masters"; and

(b) in sub-article (2) thereof, the words "An owner of a

local fishing vessel who intends to use the vessel" shall be

substituted by the words "A person who intends to use a local

fishing vessel".

Article 8 of the principal Act shall be amended as follows

Amendment of

article 8 of the

principal Act.

(a) sub-article (1) thereof shall be renumbered as article

8 of the principal Act; and

(b)

sub-article (2) thereof shall be deleted.

Article 9 of the principal Act shall be amended as follows

Amendment of

article 9 of the

principal Act.

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

words "may also provide for" there shall be added the word

"fishing"; and

(b)

sub-article (3) thereof shall be deleted.

Article 10 of the principal Act shall be amended as follows

(a) sub-article (1) thereof shall be renumbered as article

10 of the principal Act; and

(b)

sub-article (2) thereof shall be deleted.

Article 11 of the principal Act shall be amended as follows

(a) sub-article (1) thereof shall be renumbered as article

11 of the principal Act; and

(b)

sub-article (2) thereof shall be deleted.

Sub-article (3) of article 12 of the principal Act shall be

amended as follows

(a) in paragraph (e) thereof, the words "transhipment of

fish," shall be substituted by the words "transhipment of fish.";

(b) the paragraph immediately following paragraph (e)

of sub-article (3) thereof shall be deleted.

In article 13 of the principal Act, immediately after the words

"fishing licence" there shall be added the words "or fishing permit".

Article 14 of the principal Act shall be amended as follows

(a) sub-article (1) thereof shall be renumbered as article

14 of the principal Act; and

(b)

sub-article (2) thereof shall be deleted.

Article 15 of the principal Act shall be substituted by the

following new article

The Director may require the master, the owner

or the charterer of the fishing vessel as well as the fish

market trader (pitkal), to provide him with such statistical

information concerning fishing as he may direct.".

14. Sub-article (4) of article 17 of the principal Act shall be

substituted by the following new sub-article

"(4) A permit granted under sub-article (1) shall be

subject to such conditions, which may include compliance with

the provisions of this Act, as specified in the permit.".

Article 18 of the principal Act shall be deleted.

15. Deletion of

article 18 of the

principal Act.

Sub-article (1) of article 19 of the principal Act shall be Amendment of

article 19 of the

amended as follows

principal Act.

(a) paragraph (j) thereof shall be substituted by the

following new paragraph

"(j) he may, having regard to the safety of the

vessel, take steps to immobilise any fishing vessel detained

in accordance with this article;";

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

following new paragraph

"(k) in the case of any infringement under this Act

or regulations made thereunder, he may detain any vessel

together with its equipment, stores and cargo if he believes

that these have been used in the commission of such an

infringement or in respect of which he believes such

infringement has been committed, or if the detained objects

are the result of an infringement;";

(c) in paragraph (l) thereof, immediately after the words

"he may seize" there shall be added the words "or detain"; and

(d) in paragraph (n) thereof, immediately after the words

"he may seize" there shall be added the words "or detain".

Article 20 of the principal Act shall be amended as follows

Amendment of

article 20 of the

principal Act.

(a)

article 20 shall be renumbered as sub-article (1);

(b)

paragraph (c) thereof shall be amended as follows

(i) in sub-paragraph (ii) thereof, immediately after

the word "seize" there shall be added the words "or detain";

and

(ii) in sub-paragraph (iii) thereof, the words "of

such offence." shall be substituted by the words "of such

offence;" and immediately thereafter there shall be added

the following new paragraphs and sub-article

"(d) upon reasonable suspicion, stop and, or examine

any vehicle, as well as any other means of storage or

conveyance, wheresoever these may be, so as to ascertain

that the provisions of this Act are complied with

Provided that for the purpose of this paragraph it

shall be sufficient for reasonable suspicion to exist if the

stop and examination is conducted on certain types of

vehicles or other means of storage or conveyance that are

normally used for the storage and conveyance of fish,

fishing gear or any other object in contravention of the

provisions of this Act, in particular areas and places, and

at particular times of the day, during which such storage

and conveyance normally takes place; and

(e) in the circumstances referred under paragraph

(d), he may also seize any document, fish, fishing gear or

any other thing found during the examination if he

reasonably considers it as possible evidence of a

contravention or offence against this Act, or if it

otherwise assists in any investigation.

"(2) A fisheries protection officer shall not be liable

to any action and, or prosecution at law for the fulfilment

of his duties under this article, including when the

measures taken in fulfilment thereof result in no evidence

or in no contravention or offence against this Act.".

Article 21 of the principal Act shall be amended as follows

(a) in sub-article (1) thereof, the words "article 19." shall

be substituted by the words "article 19:" and immediately

thereafter there shall be added the following new proviso

"Provided that, a fisheries protection officer

and a conventions fisheries officer may also impose

additional enforcement and complementary measures to

safeguard the provisions of any convention."; and

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

following new sub-article

"(3) Any person who on any fishing vessel within

the fishing waters or on a local fishing vessel outside those

waters, assaults any such officer while exercising any of

the powers conferred on him under article 19 or wilfully

obstructs such officer in the exercise of any of those

powers, shall be guilty of an offence and shall, on

conviction, be liable to a fine (multa) of not less than one

thousand and two hundred euro (€1,200) but not exceeding

six thousand euro (€6,000).".

Articles 23, 24 and 25 of the principal Act shall be deleted.

19.

L-artikoli 23, 24 u 25 tal-Att prinċipali għandhom jiġu

Immediately after article 22 of the principal Act there shall be Addition of new

added the following new article

(1) Where any fish or any other thing of a

perishable nature is seized or detained under article 19 the

Director may, after ensu ring that all evidence is

preserved, notwithstanding any other provision of this

Act or any subsidiary legislation made thereunder, either

(a) return the fish or other thing to the

person from whom it was seized or detained upon

receiving sufficient and adequate security in the

form of a valid bank guarantee payable upon

request of the Director, and which, in the opinion of

the Director, is of equivalent commercial value to

the fish or other thing so seized or detained; or

(b) cause the sale by public auction of the

fish or other thing and, in the event that court

proceedings are instituted, deposit the proceeds of

sale in court pending an order by the court in

respect of the forfeiture or otherwise of the

proceeds or release the proceeds to the person from

whom the fish or thing were seized or detained in

accordance with this Act; or

(c) destroy the fish when it is no longer safe

for human consumption or when it cannot be

marketed according to law, or when it risks causing

a significant distortion in the Maltese market; or

(d) donate the fish to organisations having a

charitable or philanthropic purpose and exclusively

for consumption, free of charge and as food, by its

members or beneficiaries.

(2) Bank guarantees provided according to sub-

article (1)(a) shall be valid throughout any proceeding

according to this Act

Provided that should a bank guarantee fail to

remain valid until an administrative decision or until a

judgment becomes res judicata, and if the Director has

not been paid and the fish or other thing has been returned

in accordance with sub-article (1)(a), the amount of said

bank guarantee shall ipso facto become due by the

offender as an executive title in favour of the Director,

without prejudice to any obligation to return any secured

amount to whoever they are due to according to law.".

21. Sub-article (2) of article 26 of the principal Act shall be

22. Immediately after article 27 there shall be added the following

new article

Without prejudice to any other power and, or

proceeding according to law, the Director may order the

release into the sea of any live fish held by or for a

maritime aquaculture establishment, and he may do so

from wherever such fish is located, if he deems that such

fish is being held in breach of this Act or of any

subsidiary legislation made thereunder.".

23. Sub-article (3) of article 28 of the principal Act shall be

Article 30 of the principal Act shall be amended as follows

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

following new sub-article

"(1) Any person who contravenes any provision of

this Act or any subsidiary legislation made thereunder for

which no penalty is specifically provided shall, on

conviction by a competent court, be liable to a fine (multa)

of not less than one hundred and fifty euro (€150) but not

exceeding eighty thousand euro (€80,000).";

(b)

sub-article (6) thereof shall be deleted;

(c) sub-article (7) thereof shall be substituted by the

following new sub-article

"(7) Notwithstanding the provisions of any other

law, proceedings in respect of an infringement against this

Act or any subsidiary legislation made thereunder

involving a foreign fishing vessel shall be barred by

prescription by the lapse of ten (10) years from the

commission of the infringement.";

(d)

sub-article (8) thereof shall be substituted by the

following new sub-article

"(8) The Director may, in respect of prosecutions

and proceedings for infringements under this Act or any

subsidiary legislation made thereunder produce evidence

and participate in the prosecution of the case together with

the Police before the Court."; and

(e) sub-article (9) thereof shall be substituted by the

following new sub-article

"(9) A certificate purporting to be signed by the

Director or any officer authorised by him for that purpose,

to the effect that on a date specified in the certificate

(a) a fishing vessel specified in that

certificate was not entered in the register of fishing

vessels, licensed or specified in a fishing permit

under this Act or any subsidiary legislation made

thereunder; or

(b) the accused person or any other named

person was not the holder of a licence or fishing

permit under this Act or any subsidiary legislation

made thereunder,

shall, in the absence of proof to the contrary, be

sufficient evidence of the matter stated in the certificate.".

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

following new article

The Minister may by order make such

provisions as he may consider appropriate for the

enforcement of any restriction or obligation relating to

sea fishing contained in a convention to which Malta is a

party and may provide in that order that any infringement

of any such restriction or obligation shall constitute an

offence against this Act or any subsidiary legislation

made thereunder.".

Article 33 of the principal Act shall be substituted by the Substitution of

26. following new article

(1) If the Director has reasonable cause to

believe that an infringement against this Act or any

s ubs idiary legi slatio n made th ereun der h as been

committed by any person he may cause a notice in writing

in accordance with sub-article (2) to be served on that

person.

(2) A notice in accordance with sub-article (1) shall

specify and provide

(a) the date or time periods during which

the alleged infringement took place, and the nature

thereof;

(b) the provisions of the law which were or

are allegedly being breached;

(c) a summary of the facts upon which the

allegation that the infringement was or

infringements were committed is based, being

sufficiently detailed to inform the person of the

allegation against him;

(d) any other matters that the Director

considers relevant to the imposition of a penalty;

(e) the amount of the penalty due, being not

less than fifty euro (€50) and not more than sixty

thousand euro (€60,000);

(f) if it so appears reasonable to the

Director and without prejudice to any other

provision of the law, the security to be given for the

fish or the forfeiture of the proceeds of the sale

thereof mutatis mutandis in accordance with article

22A, as well as a seizure and confiscation order in

favour of the Director of any fishing implement or

any other thing related to the infringement or

obtained through it; and

(g) if it so appears reasonable to the

Director, and without prejudice to any other

provision of the law, a temporary immobilisation

order against the fishing vessel and, or the

suspension for a time period as may be specified of

any licence, and, or permit or other type of

authorisation given in accordance with the

provisions of this Act or any subsidiary legislation

made thereunder, and the notice shall include a

declaration that such notice is being issued under

this article.

(3) Any person on whom a notice under sub-article

(1) is served may, within thirty (30) days after such

service, by notice in writing served on the Director

require that proceedings in respect of the alleged

infringement shall be dealt with by the Court, in which

case the following provisions shall apply

(a) no further administrative proceedings

relating to that particular infringement shall be

taken under this article by the Director; and

(b) nothing in this article shall be construed

as preventing the institution of any proceedings in

respect of the alleged infringement or the conviction

of that person by the court or, following such

conviction, the imposition of any punishment or

other enforcement or complementary measures

under this Act or any subsidiary legislation made

thereunder upon such conviction.

(4) Any person on whom a notice under sub-article

(1) is served, who does not wish that proceedings in

respect of the alleged infringement shall be dealt with by

the court may by notice in writing served on the Director

(a) admit the infringement; and

(b) agree in writing to pay to the Director

the amount of the penalty set by the Director

Provided that payment should be effected in full

within thirty (30) days after the notice of the penalty is

served, and in case of default the provisions of sub-article

(6) shall apply.

(5) Where a person admits an infringement pursuant

to the preceding sub-article, the Director shall impose an

administrative penalty on that person in respect of the

infringement and in determining the amount of the

penalty which is to be imposed, the Director shall also

take into account the following criteria, as applicable

(a) the nature and the extent of the damage

caused to fishing resources and the marine

environment;

(b) the objective circumstances in which the

infringement was committed; and

(c) the economic situation of the offender.

(6) Any penalty imposed under sub-article (5) shall

be due as a civil debt enforceable by the competent court

of civil jurisdiction in favour of the Government and it

shall constitute an executive title according to law in the

same manner as if it were a judgement of the competent

court of civil jurisdiction.

(7) Notwithstanding any other provision of this Act

o r a n y l e g i s l a t i o n m a d e t h e r e u n d e r, w h e r e a n

infringement has been admitted under this article and the

relevant penalty has been paid, no criminal proceedings

may be instituted in respect of the same infringement

against the person by whom it has been admitted.

(8) Where a person on whom a notice under sub-

article (1) is served does not, within thirty (30) days after

the notice is served on him, admit the infringement and

agree in writing to pay the penalty notified to him by the

Director in accordance with sub-article (4), the Director

shall institute proceedings or cause proceedings to be

instituted before the Court in respect of the alleged

infringement.

(9) The provisions of this article shall not apply to

any offence in respect of which criminal proceedings have

already been instituted.

(10) The Director shall personally and independently

exercise his powers under this article, and in the exercise

of such powers he shall not be subject to the direction or

control of any other person or authority.".

Articles 34 and 35 of the principal Act shall be deleted.

27.

28. In article 36 of the principal Act, the word "Minister" shall be

substituted by the word "Director".

29. In article 37 of the principal Act, the word "Minister" shall be

substituted by the word "Director".

Article 38 of the principal Act shall be amended as follows

30. (a)

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

(i) paragraph (u) thereof shall be substituted by the

following new paragraph

"(u) the control of public fish landing places;";

and

(ii) paragraph (y) thereof shall be substituted by the

following new paragraph

"(y) the establishment of a point system for

any infringement under this Act or any subsidiary

legislation made thereunder."; and

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

be added the following new sub-articles

"(3) Without prejudice to sub-article (1), the

Minister may by regulations prescribe offences, penalties,

measures and, or proceedings, be they criminal or

administrative, for any provision of this Act if this Act

does not provide thereon, and he may also do so for any

provision in subsidiary legislation done under this Act.

(4) Without prejudice to any penalty point system

established by the Minister, any regulations made by the

Minister according to this article which provide for

administrative proceedings shall be without prejudice to

article 33 and such regulations shall follow the

requirements of article 33.".

Articles 39 and 40 of the principal Act shall be deleted.

31.

32. Immediately after article 38 of the principal Act there shall be Addition of new

added the following new articles

(1) The Administrative Review Tribunal

established by article 5 of the Administrative Justice Act

shall be competent to hear and determine appeals made by

any person aggrieved by any decision of the Director

under article 33, as well as decisions not to grant or renew,

or to suspend or revoke an authorisation, a licence or a

permit, or to impose conditions, limitations or exclusions

therein

Provided that, unless otherwise specified by law,

an appeal lodged in terms of this sub-article before the

Administrative Review Tribunal shall be filed within

twenty (20) days from the notification of the Director’s

decision.

(2) There shall be a right of appeal in accordance

with the provisions of Part IV of the Administrative

Justice Act, from decisions of the Administrative Review

Tribunal delivered pursuant to the preceding sub-article,

to the Court of Appeal (Inferior Jurisdiction).

PART XIV

TRANSITORY PROVISION

The provisions of this Act shall remain in force

for the purpose of any act, decision or proceedings taken

prior to the coming into force of the Fisheries

Conservation and Management (Amendment) Act, 2022,

in respect of any offence under this Act that was

committed prior to the said date.".

33. In the Second Schedule to the Administrative Justice Act,

immediately after the item "Malta Resources Authority Act" there

shall be added the following new item

"Fisheries Conservation and Man- Cap. 425

Inferior Compe-

agement Act

tence".

Passed by the House of Representatives at Sitting No. 55 of the 21st

November, 2022.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€1.62