MALTA FINANCIAL SERVICES AUTHORITY ACT (theexecutivecommittee)

CHAPTER 330

MALTA FINANCIAL SERVICES AUTHORITY ACT

To establish an Authority for Financial Services from within Malta, to

regulate such activities and to provide for matters ancillary or incidental

thereto or connected therewith.

20th January, 1989;

30th June, 1989

ACT XXXIV of 1988, as amended by Act XV of 1989; Legal Notice 167

of 1989; Legal Notice 79 of 1990; Act XXXI of 1990; Legal Notice 183 of

1990; Acts XIII of 1994, XXV of 1995, XVII of 2002, IV of 2003, XIII of

2004, XII of 2006, XX of 2007; Legal Notice 424 of 2007; Acts III of 2009,

II , XIX of 2010, X of 2011; Legal Notice 426 of 2012; Acts XX of 2013,

XXII of 2014, XXI of 2015, XVI, XXXI of 2017, VI of 2018, VIII of 2019.

XXVI of 2019, V of 2020, VIII of 2020 and LXII of 2020 and XII of 2021,

Legal Notice 225 of 2021, Acts XLVI, LXXI of 2021 , LXXII of 2021 and VI

of 2024.

The short title of this Act is the Malta Financial Services

Authority Act.

RECOVERY AND RESOLUTION

Article 7B.

Interpretation.

1. (1)

In this Schedule, unless the context otherwise requires

"the CRR" means Regulation (EU) No. 575/2013 of the

European Parliament and of the Council of 26 June 2013 on

prudential requirements for credit institutions and investment firms

and amending Regulation (EU) No. 648/2012, as amended from

time to time, and includes any implementing measures that have

been or may be issued thereunder;

"the C R D " means Directive 2013/36/EU of the European

Parliament and of the Council of 26 June 2013 on access to the activity

of credit institutions and the prudential supervision of credit

institutions, amending Directive 2002/87/EC and repealing Directives

2006/48/EC and 2006/49/EC, as amended from time to time, and

includes any implementing measures that have been or may be issued

thereunder;

"European resolution authority" means an authority which is

situated in a country or territory outside Malta that is in a Member

State or an EEA State, and which exercises any function

corresponding to the functions of the Resolution Committee under

this Act and the Recovery and Resolution Regulations;

"investment firm" means an investment firm as defined in point

(2) of Article 4(1) of the CRR, that is subject to the initial capital

requirement laid down in Article 28(2) of the CRD;

"resolution" means the structuring of a credit institution or

investment firm through the application of a resolution measure or

measures in order to achieve one or more of the objectives referred

to in paragraph 3(2);

"resolution measures" means one or more of the following

(a) sale of business;

(b) bridge institutions;

(c) asset separation; and

(d) bail in;

"resolution powers" means the powers conferred on the

Resolution Committee in terms of the Recovery and Resolution

Regulations;

"third-country resolution authority" means an authority in a

country or territory that is not a Member State or EEA State which

is responsible for carrying out functions comparable or equivalent

to those of the Resolution Committee pursuant to this Act.

(2) Words and expressions used in this Schedule, but which are

not defined herein, shall be interpreted within the meaning of the

BRRD.

The Resolution Committee.

2. (1) The Resolution Committee shall ensure full and

complete adherence to the requirements and obligations prescribed

by regulations made under this Act, either directly or in

collaboration with European and third-country resolution

authorities, and may, for such purposes, exercise any of its powers

under this Act and any regulations made thereunder.

(2) The Resolution Committee shall be composed of three

persons, who shall be a person appointed by the Central Bank of

Malta, a person appointed by the Authority, and a person appointed

by the Ministry responsible for Finance, who have distinguished

themselves in banking and financial related matters or have the

relevant experience in financial supervision, regulation, resolution

and insolvency of institutions.

(3) The appointment of such persons shall be for such term,

being a period of not more than three years, as may be specified in

the letter of appointment, and shall be eligible for reappointment

for a maximum period of two terms or otherwise for a maximum

period of six years, whichever is the higher. Such persons shall

receive such remuneration as the Authority may from time to time

determine.

(4) The provisions of article 6(3) to (6) of the Act shall, as far as

applicable, mutatis mutandis apply to the eligibility, term of office,

termination and resignation of the Resolution Committee.

The objectives of the Resolution Committee.

3. (1) In discharging its general functions, the Resolution

Committee shall, as far as is reasonably possible, act in a way

which

(a) is compatible with the resolution objectives; and

(b) minimises the cost of resolution and avoids the

destruction of value of the institution.

(2)

The resolution objectives of the Resolution Committee are

(a) safeguarding the continuity of critical functions;

(b) minimising risks to financial stability;

(c) protecting public funds by reducing reliance on

extraordinary public financial support;

(d) protecting depositors and investors;

(e) protecting clients’ funds and clients’ assets.

(3)

(a) The Resolution Committee shall have the power to

require the full assistance and collaboration of any

institution, as may be necessary to enable it to fulfil its

functions under this Schedule.

(b) Any institution as may be required by the Resolution

Committee to provide its assistance and collaboration

MALTA FINANCIAL SERVICES AUTHORITY

in terms of sub-paragraph (3)(a) shall comply with

such request fully, without delay and in such detail as

may be required.

Functions and powers of the Resolution Committee.

4. (1) Without prejudice to any other function or power

conferred to it by this Act or any other law or regulations, it shall

be the function of the Resolution Committee to

(a) review and decide upon the recommendations made to

it by the Resolution Unit established in terms of this

Schedule, in relation to resolution decisions;

(b) liaise and consult, on matters relating to budgets and

resources, with the Authority;

(c) exchange information, where necessary, with the

Authority;

(d) carry out such other functions which are assigned to it

by this Act or any regulations made thereunder;

(e) apply resolution measures when an institution is

failing or is likely to fail;

(f)

cooperate closely with and consult the Authority in the

preparation, planning and application of resolution

decisions, and in all other instances where any such

cooperation or consultation is required by the CRD, by

the BRRD or by the CRR;

(g) cooperate closely with and consult authorities, both local

or overseas, in order to coordinate resolution measures to

protect financial stability in all affected Member States

and EEA States and, when a cross-border group is failing

or likely to fail, to achieve the most effective outcome for

the group as a whole, and in all other instances where any

such cooperation or consultation is required by the CRD,

by the BRRD or by the CRR.

(h) cooperate with European resolution authorities and

third country resolution authorities on matters relating

to resolution;

(i)

set up a resolution financing arrangement through

mandatory contributions from institutions;

(j)

communicate to the Resolution Authority its resolution

decisions which necessitate implementation;

(k) implement the resolution decisions mentioned under

point (j);

(l)

assist the Resolution Authority on any matter falling

under this Part, on which the Resolution Authority

seeks assistance.

(2) In carrying out its general functions, the Resolution

Committee shall

(a) ensure that no conflict of interest may arise with the

supervisory functions of the Authority;

(b) seek the approval in writing of the Minister, after

informing the Resolution Authority and the Central

Bank of Malta, prior to taking any decisions that may

have a direct fiscal impact or which have systemic

implications;

(c) notify the Minister, after having informed the

Resolution Authority, of any decisions taken by it

pursuant to this Act.

(3) The Resolution Committee shall have all the powers that

are necessary to enable it to perform its functions under this

paragraph and to ensure the effective implementation of the provisions

of the BRRD.

(4)

The Resolution Committee shall also have the power to

(a) collect the contributions from institutions towards the

resolution financing arrangements;

(b) determine the administrative penalties payable by

institutions for failure to comply with the decisions

addressed to them;

(c) impose administrative penalties on any person whose

conduct, in the opinion of the Resolution Committee,

amounts to a breach of any of the provisions of this

Act or any regulations or Rules issued thereunder

transposing the BRRD;

(d) impose an administrative penalty on any person who

has failed to comply with a directive issued by the

Resolution Committee under this Act or any

regulations or Rules issued thereunder transposing the

BRRD; and

(e) publish, collect and recover any administrative penalties

imposed by it in terms of this paragraph.

(5)

(a) In exercising its power under sub-paragraphs (4)(c) and

(d), the Resolution Committee may, by notice in

writing and without recourse to a court hearing,

impose on such person an administrative penalty of

(i) up to twice the amount of the benefit derived

from the breach, where that benefit can be

determined;

(ii) in the case of a natural person, up to five million

euro (€5,000,000); or

(iii) in the case of a legal person, up to 10% of the

total annual net turnover of the undertaking in

the preceding business year including the gross

income consisting of interest receivable and

similar income, income from shares and other

variable

or

fixed-yield

securities,

and

commissions or fees receivable in accordance

with Article 316 of the CRR. In the case of a

subsidiary of a parent undertaking, the relevant

turnover shall be turnover resulting from the

consolidated accounts of the ultimate parent

undertaking in the preceding business year.

(b) Where the Resolution Committee decides to impose an

administrative penalty, it shall notify the person on

whom the penalty is being imposed by means of a

notice in writing.

(c) Where the person upon whom the notice referred to in

point (b) is served

(i) fails to pay to the Resolution Committee the

amount of the administrative penalty within a

period of thirty days from the service of the

notice, and fails to appeal from the decision of

the Resolution Committee to the Court of Civil

Jurisdiction; or

(ii) appeals to the Court of Civil Jurisdiction and

fails within a period of fifteen days from the

decision of the said Court to pay the

administrative penalty as confirmed or as varied

by that Court;

then, in every case, the amount of the administrative

penalty, as originally imposed or as reduced or

increased, as the case may be, shall be due to the

Resolution Committee as a civil debt, and the

provisions of point (d) shall apply.

(d) A notice as is referred to in point (b), or the decision of

the Court of Civil Jurisdiction, as the case may be,

shall upon the service by judicial act of a copy thereof

on the person indicated in the notice, constitute an

executive title for all effects and purposes of Title VII

of Part I of Book Second of the Code of Organization

and Civil Procedure.

(6) The imposition by the Resolution Committee of an

administrative penalty in terms of this article shall be without

prejudice to any other consequences of the act or omission of the

offender under civil or criminal law

Provided that in all cases where the Resolution Committee

imposes an administrative penalty in respect of anything done or

omitted to be done by any person and such act or omission also

constitutes a criminal offence, no proceedings may be taken or

continued against the said person in respect of such criminal

offence.

(7) The Resolution Committee shall designate an official

forming part of the Resolution Unit to act as a secretary for such

period of time and under such terms as the Resolution Committee

shall deem appropriate.

(8) The Resolution Committee may invite any person and may

require any officer of the Resolution Unit or of the Authority to

attend a meeting of the Resolution Committee and to take part in

the discussion.

Publication of administrative penalties.

5. (1) The Authority shall publish, on its official website and

in any other media as it considers appropriate, any administrative

penalty or penalties for any breaches of the provisions of the BRRD

imposed by the Resolution Committee under the provisions of this

Act and of any regulations made or Rules issued thereunder. Such

publications shall include information on the type and nature of the

breach and the identity of the person on whom the administrative

penalty is imposed, without undue delay after that person is

informed of those penalties

Provided that in cases where an appeal has been filed by

the person on whom such administrative penalty or penalties have

been imposed, the Authority shall, without undue delay, also

publish on its official website and in any other media as it considers

appropriate, information on the status of the appeal and the

outcome thereof.

(2) The Authority shall publish the administrative penalties for

any breaches of the provisions of the BRRD, imposed by the

Resolution Committee under the provisions of this Act and of any

regulations made or Rules issued thereunder, on an anonymous

basis, in any of the following circumstances

(a) where the administrative penalty is imposed on a

natural person and, following an obligatory prior

assessment, publication of personal data is found to be

disproportionate;

(b) where publication would jeopardise the stability of

financial markets or an on-going criminal

investigation;

(c) where publication would cause, insofar as can be

determined,

disproportionate

damage

to

the

institutions, to the entities referred to in point (b), (c)

or (d) of Article 1(1) of the BRRD or to the natural

persons involved

Provided that publication on an anonymous basis in any

such circumstances shall be an exceptional measure which needs to

be justified by a detailed report compiled by the Resolution

Committee

Provided further that where the circumstances referred to

in this sub-article are likely to cease within a reasonable period of

time, publication under this article may be postponed for such a

period of time.

(3) Information published in terms of this article shall remain

on the official website of the Authority for a period of not less than

five years. Personal data shall be retained on the official website of

the Authority and in any other media it considers appropriate only

for the period necessary, in accordance with the provisions of

Maltese legislation on data protection.

Power to recover debt.

6. The Resolution Committee may bring proceedings before

the Court of Civil Jurisdiction to recover as a debt an amount of

administrative penalty due to it under this Part.

Power to issue directives.

7. (1) Without prejudice to any of the powers conferred in

this Act, the Resolution Committee may, whenever it deems

necessary, give, by notice in writing, such directives as it may deem

appropriate in the circumstances in order to carry out the functions

and duties prescribed by this Act, and any regulations made or

Rules issued thereunder transposing the BRRD.

(2) The power to give directives under this article shall include

the power to vary, alter, add to or withdraw any directive, as well as

the power to issue new or further directives.

(3) Any person to whom a notice is given in accordance with

sub-paragraph (1) shall obey, comply with and otherwise give

effect to any such directive within the time and in the manner stated

in the directive.

(4) Where the Resolution Committee is satisfied that the

circumstances so warrant, it may at any time make public any

directive which it has issued in terms of this paragraph.

The Resolution Unit

8. (1) There shall be a Resolution Unit which shall carry out

the functions assigned to it under this Act, and as may be assigned

to it by the Resolution Committee.

(2) The Resolution Unit shall periodically report to the

Resolution Committee on the activities and developments within its

area of competence.

(3) The Resolution Unit shall be composed of the Director of

the Office, and any number of employees as may be required in

order to carry out its functions properly.

(4)

It shall be the function of the Resolution Unit to

(a) assess whether an institution is failing or is likely to

fail, after consulting the Authority;

(b) draw up resolution plans, after consulting the

Authority, on how to deal with financial stress or

failure of institutions, including at group level;

(c) carry out resolvability assessment of institutions;

(d) cooperate, liaise and exchange information, as

necessary, with the Units respectively responsible for

supervision of credit institutions and investment firms

within the Authority.

Remedies for a wrongful decision or action.

9. Where it is necessary to protect the interests of third parties

acting in good faith who have acquired shares, other instruments of

ownership, assets, rights or liabilities of an institution under

resolution by virtue of the use of resolution tools or exercise of

resolution powers by the Resolution Committee, the annulment of a

d e c i s i o n o f t h e R e s o l u t i o n C o m m i t t e e s h a l l n o t a ff e c t an y

subsequent administrative acts or transactions concluded by the

Resolution Committee which were based on the annulled decision.

In that case, remedies for a wrongful decision or action by the

Resolution Committee shall be limited to compensation for the loss

suffered by the applicant as a result of the decision or act.

Issuing of precautionary warrant.

10. Notwithstanding any other law, no precautionary warrant

or other order under any other law shall be issued by any Court or

Tribunal restraining the Resolution Committee from taking any

action, including a crisis prevention measure or a crisis

management measure, under this Act, or under any regulations

issued thereunder or any other law.

Functions and powers of the Authority.

11. (1) In addition to the powers assigned to the Authority

under this Act, the Banking Act, and the Investment Services Act,

the Authority shall have the power to

(a) determine the administrative penalties payable by

institutions for failure to comply with any decisions

issued by the Authority and addressed to them;

(b) impose administrative penalties on any person whose

conduct, in the opinion of the Authority, amounts to a

breach of any of those provisions of this Act or any

regulations or Rules issued thereunder transposing the

BRRD in which an institution has an obligation

towards the Authority;

(c) impose an administrative penalty on any person who

has failed to comply with a directive issued by the

Authority under this Act or any regulations or Rules

issued thereunder transposing the BRRD;

(d) publish, collect and recover any administrative

penalties imposed by it in terms of this paragraph

Provided that in exercising the powers listed in sub-

paragraphs (a) to (d), the provisions of paragraphs

4(5), 4(6) and 5 of this Schedule shall apply mutatis

mutandis, and provided further that any reference to

''the Resolution Committee'' shall be deemed to be a

reference to ''the Authority'', and any reference to ''the

Court of Civil Jurisdiction'' or ''the Court'' shall be

deemed to be references to ''the Tribunal'';

(e) issue, by notice in writing, such directives on any

person as it may deem appropriate in the

circumstances in order to carry out the functions and

duties prescribed by this Act and any regulations or

Rules issued thereunder transposing the BRRD, and in

exercising such power, the provisions of paragraph 7

of this Schedule shall apply mutatis mutandis, and any

reference to ''the Resolution Committee'' shall be

deemed to be a reference to ''the Authority''; and

(f)

bring proceedings before the Court of Civil

Jurisdiction to recover as a debt an amount of

administrative penalty due to it under this Schedule.

(2) The Authority shall have all the powers that are necessary

to enable it to perform its functions under this paragraph to ensure

the effective implementation of the provisions of the BRRD

imposing rights and obligations on competent authorities, and,

accordingly the powers of the Authority in terms of this paragraph

shall be interpreted and applied in accordance with the provisions

of the BRRD.

In this Act unless the context otherwise requires

''Authority'' means the Malta Financial Services Authority

established by article 3;

"Audit Committee" means the Committee established by article

12A;

''Board of Governors'' means the Board of Governors of the

Authority established by article 6;

"the BRRD" means Directive 2014/59/EU of the European

Parliament and of the Council of 15 May 2014 establishing a

framework for the recovery and resolution of credit institutions and

investment firms and amending Council Directive 82/891/EEC, and

Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC,

2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and

Regulations (EU) No. 1093/2010 and (EU) No. 648/2012, of the

European Parliament and of the Council, as amended from time to

time, and includes any implementing measures, implementing

technical standards, regulatory technical standards, guidelines and

similar measures that have been or may be issued thereunder;

"Chief Executive Officer" means the Officer responsible for the

overall performance of the Authority and the implementation of its

objectives, strategy, and of policies as set by the Board of Governors.

The Chief Executive Officer shall be appointed by the Board of

Governors. The Chief Executive Officer shall be a non-voting member

of the Board of Governors;

"Chief Officer" means the Officer responsible for a Directorate;

"Directorate" means a section of the Authority, established by the

Board of Governors in terms of article 5, made up of a number of units

and functions;

"Disclosure Regulation" means Regulation (EU) 2019/2088 of the

European Parliament and of the Council of 27 November 2019 on

sustainability‐related disclosures in the financial services sector, as

amended from time to time, and includes any binding legal

instruments, guidelines and other measures that have been or may be

issued thereunder;

"Executive Committee" means the Committee appointed in terms of

article 9;

"Enforcement Decisions Committee" means the sub-committee of the

Executive Committee established by article 11;

''financial year'' means a period of twelve months beginning on

the 1st day of January and ending on the 31st day of December of

each year;

''financial services'' means the business of credit and financial

institutions, the business of insurance and the activities of

insurance intermediaries, the provision of investment services and

collective investment schemes, pensions and retirement funds,

regulated markets, central securities depositories and such other

areas of activity or services as may be placed under the supervisory

and regulatory competence of the Authority by the Minister or by

any other law;

"General Counsel" means the Officer leading the Directorate for

Legal and International Relations;

"institution" means a credit institution or an investment firm;

"internal audit" means an independent, objective assurance and

c o n s u l ti n g a c t i vi t y d e s i gn e d t o a dd v a lu e an d i m p r ov e t he

operations of the Authority;

"local regulated market" means a regulated market authorized under

the Financial Markets Act;

"MiFID" means Directive 2014/65/EU of the European

Parliament and of the Council of 15 May 2014 on markets in

financial instruments and amending Directive 2002/92/EC and

Directive 2011/61/EU, as amended from time to time, and includes

any implementing measures that have been or may be issued

thereunder;

"Minister" means the Minister responsible for the regulation of

Financial Services;

''person'' includes any entity corporate or unincorporated which

may hold a licence or other authorisation issued by the Authority or

which falls within the supervisory or regulatory authority of the

Authority;

''prescribed'' means prescribed under this Act, or any regulations or

Rules issued thereunder;

"Taxonomy Regulation" means Regulation (EU) 2020/852 of the

European Parliament and of the Council of 18 June 2020 on the

establishment of a framework to facilitate sustainable investment, and

amending Regulation (EU) 2019/2088, as amended from time to time,

and includes any binding legal instruments, guidelines and other

measures that have been or may be issued thereunder.

In this Act and in any regulations made thereunder, if there is

any conflict between the English and Maltese texts, the English text

shall prevail.

(1) There shall be an authority, to be called the Malta

Financial Services Authority.

(2) The Authority shall be a body corporate having a distinct

legal personality and capable of entering into contracts, of

acquiring and disposing of property of any kind for the purposes of

its functions under this Act or any other law, of suing and of being

sued, and of doing all such things and entering into all transactions

as are incidental to or conducive to the exercise or performance of

its functions aforesaid.

(3)

Save as expressly provided for in this Act or in any other

A c t a d m i n i s t e r e d b y t he A u t ho r i t y, t h e A u t h o ri t y s ha l l ac t

independently and shall not seek or take instructions from any other

body or person.

(4) The provisions of article 77 of the Public

Finance

Management Act shall not apply to the Authority.

(1) Without prejudice to any other power or function

conferred to it by this Act or any other law, it shall be the function

of the Authority

(a) to regulate, monitor and supervise financial services in

Malta;

(b) to promote financial market integrity and the legitimate

expectations of consumers of financial services, to

promote fair competition practices and consumer choice in

financial services and to complement the Central Bank of

Malta in its role to ensure the stability of the financial

system;

(c) to monitor and keep under review trading and business

practices relating to the supply of financial services to

private and other persons, and to provide relevant

information and guidance to the public;

(d) to monitor the working and enforcement of laws that

directly or indirectly affect consumer of financial

services in Malta, and to undertake or commission

such study, research or investigation which it may

deem necessary in this regard;

(e) to advise the Government generally on the formulation

of policies in the field of financial services, and to

make recommendations to Government on action

which in the opinion of the Authority would be

expedient in relation to matters falling within the

regulatory and supervisory functions of the Authority;

(f)

to investigate allegations of practices and activities

detrimental to consumers of financial services, and

generally to keep under review trading practices

relating to the provision of financial services and to

identify, and take measures to suppress and prevent,

any practices which may be unfair, harmful or

otherwise detrimental to consumers of financial

services;

(g) to ensure high standards of conduct and management

throughout the financial system;

(gA) to provide and foster further training, knowledge and

education on all matters relating to financial services;

(h) to perform such other functions or duties as may be

assigned to it under this Act or any other law.

(1A) Without prejudice to the functions of the Authority under

this or any other law, it shall also be the function of the Authority

(a) to promote and safeguard the integrity of local

regulated markets;

(b) to ensure investor confidence in local regulated

markets;

(c) to ensure that all the participants of local regulated

markets are responsible for their decisions and actions;

and

(d) to ensure that any measures imposed upon any person

in accordance with this Act or any other law, where

relevant, are imposed in accordance with the principle

of proportionality.

(1B) Without prejudice to the functions of the Authority under

this or any other law, it shall also be the function of the Authority

to monitor the compliance

(a) of financial market participants and financial advisers,

as defined in Article 2 of the Disclosure Regulation,

with the requirements of the said Regulation; and

(b) of financial market participants, as defined in Article 2 of

the Taxonomy Regulation, with the requirements of

Articles 5, 6 and 7 of the said Regulation.

(2) For the better performance of its functions, the Authority

shall collaborate with other local and foreign bodies, Government

departments, international organisations, with the European Securities

and Markets Authority (ESMA), the European Banking Authority

(EBA), the European Insurance and Occupational Pensions Authority

(EIOPA), colleges of supervisors, the European Systemic Risk Board

(ESRB), the European Central Bank (ECB), the Single Resolution

Board (SRB) and other entities which exercise regulatory, supervisory,

registration or licensing functions and powers under any law in Malta

or abroad or which are otherwise engaged in overseeing or

monitoring areas or activities in the financial services sector and

the registration of commercial partnerships, and to make

arrangements for the mutual exchange of information and for other

forms of assistance in regulatory and supervisory matters.

(3) The Authority shall have the power to impose such fees as

may be prescribed, and to levy charges in respect of any request,

application or other matter that may be submitted to it under this or

any other Act including the fees and charges in respect of any

permission, licence, authorisation, exemption or other benefit, as

well as fees and charges in respect of its regulatory, supervisory or

investigative functions under this or any other law, including the

Authority’s function to provide training, knowledge and education on

all matters relating to financial services.

(4) In exercising its functions and powers assigned to it under

this Act or any other Act, the Authority shall be obliged to have

r e g a r d t o M a l t a ’s i n t e r n a t i o n a l c o m m i t m e n t s i n c l u d i n g i t s

obligations under the Treaty within the meaning of the European

Union Act. In this Act, ''Malta’s international commitments'' shall

mean Malta’s commitments, responsibilities and obligations arising

out of membership of the European Union and membership of, or

affiliation to, or relationship with, any international, global or

regional organisations or grouping of countries or out of any treaty,

convention or other international agreement, however called,

whether bilateral, multilateral including Memoranda of

Understanding, to which Malta is a party.

The granting of a licence is a concession and a revocable

privilege, and no holder thereof shall be deemed to have acquired

any vested rights therein or thereunder. The burden of proving the

licence holder’s qualifications to hold a licence shall rest at all

times on the licence holder. In this sub-article, licence includes and

applies to any licence and authorisation, however designated,

issued by the Authority under any legislation for whose

administration it is responsible.

(1) The main organs of the Authority are the Board of

Governors, the Executive Committee and Directorates as may be

established by the Board of Governors from time to time.

(2) It shall be the duty of the organs of the Authority to provide

the Board of Governors with all such information as may be

required for the proper performance of its functions and in

particular to enable it to ensure that its policies are being properly

carried out.

(1) The Board of Governors shall establish the policies to

be pursued by the Authority. In determining such policies the Board

of Governors shall follow such policy guidelines as may be set out

by Government. The Board of Governors shall also be responsible

for advising the Government as provided in article 4.

(2)

The Board of Governors shall consist of the following

(a) a Chairman, appointed by the Prime Minister acting on

the advice of the Cabinet of Ministers;

(b) the Chief Executive Officer;

(c) five members or more, appointed by the Prime

Minister from among persons who have distinguished

themselves in business, financial activities, the

professions, the public services or academic affairs

and who in his opinion are able to represent the points

of view of the industry and consumers of financial

services.

The Board of Governors shall choose a deputy Chairman

from amongst its members.

(3) A person shall not be eligible to be appointed as Chairman

or as a member of the Board of Governors or of any other organ of

the Authority, or to hold any office with the Authority, if he is the

holder of a licence or other authorisation issued by the Authority or

otherwise falls under the regulatory or supervisory functions of the

Authority, or is a director, an officer or employee of such holder or

other such person.

(4) Where the Chairman is absent or is unable to exercise the

functions and powers of his office and the Prime Minister has not

appointed another person to act as chairman during the period of

absence or disability the remaining members of the Board of

Governors shall designate one of the other members of the Board to

carry out the functions of the chairman during each period.

(5) The Chairman and the members of the Board of Governors

shall hold office for such term, being a period of not more than five

years, as may be specified in the letter of appointment, and shall be

eligible for reappointment; and shall receive such remuneration as

the Minister may from time to time, determine.

(6)

(a) Without prejudice to the provisions of sub-article (3) a

person shall not be eligible to be appointed or to hold

office as Chairman or as a member of the Board of

Governors if he -

(i) is a member of the House of Representatives; or

(ii) is legally incapacitated or interdicted; or

(iii) has been declared bankrupt or has made a

composition or arrangement with his creditors;

or

(iv) has contravened any provision made by or under

any law appearing to be designed for protecting

members of the public against financial loss due

to dishonesty, incompetence or malpractice

concerned in the provision of financial services

or in the management of companies; or

(v) has engaged in any business practice appearing

to the Prime Minister to be deceitful or

oppressive or otherwise improper (whether

unlawful or otherwise) or which otherwise

reflects discredit on his method of conducting

business or professional activities; or

(vi) has engaged in or been associated with any other

business practice or otherwise conducted

himself in such a manner as to cast doubt on his

competence or soundness of judgement; or

(vii) has a financial or other interest as is likely to

prejudicially affect the discharge by him of his

functions; or

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

that office.

(b) In determining whether a person is a fit and proper

person, the Prime Minister shall have regard to that

person’s probity, to his competence and soundness of

judgement 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 his holding that office.

(c) Any person whom the Prime Minister has appointed or

proposes to appoint as a member of the Board of

Governors shall, whenever requested by the Prime

Minister to do so, furnish to him such information as

the Prime Minister considers necessary for the

performance of his duties under paragraphs (a) and

(b).

(d) A member of the Board may be relieved of office by

the Prime Minister on the ground of inability to

perform the functions of his office, whether due to

infirmity of mind or of body, or of misbehaviour; and

for the purposes of this paragraph repeated and

unjustified non-attendance of meetings may be deemed

to amount to misbehaviour.

(e) Any member of the Board of Governors, may resign

his office by letter addressed to the Prime Minister.

(f)

The appointment of any person as a member of the

Board of Governors and the termination of office or

resignation of any such person including the reason for

such termination or resignation, as applicable, shall be

notified in the Gazette.

(1) The Board of Governors shall meet as often as may be

necessary or expedient but in any case not less frequently than once

every three months. The meetings shall be convened by the

Chairman either on his own initiative or on the written request of

any three members.

(2) The Board of Governors may act notwithstanding any

vacancy amongst its members provided there is a quorum

consisting of not less than three members present at the meeting.

(3) The meetings of the Board of Governors shall be chaired by

the Chairman or in his absence by the deputy Chairman, or by a

member elected for the particular meeting by the other members

present at the meeting.

(4) Decisions of the Board of Governors shall be taken by a

majority of votes of the members present, and the Chairman or

other person chairing the meeting shall have an original vote and in

the event of an equality of votes a second or casting vote.

(5)

(a) The Board of Governors shall designate a person to act

as Secretary to the Board of Governors for such period

and as the Board of Governors shall deem appropriate.

(b) It shall be the duty of the Secretary to make the

necessary preparations for the meetings of the Board

of Governors and to keep minutes of those meetings.

(6) Any participation in the proceedings of the Board of

Governors by a person not entitled so to do, shall not invalidate the

proceedings.

(7) Subject to the foregoing provisions of this article, the Board

of Governors may regulate its own proceedings.

(8) The Board may invite any person and may require any

officer or employee of the Authority to attend a meeting of the

Board of Governors and to take part in the discussions.

(1)

Without prejudice to the functions and powers of the

Board of Governors under this Act or any other law, the Board of

Governors shall be responsible for the approval of prospectuses and

admissibility to listing.

(2)

The Board of Governors may, from time to time, delegate in

writing any of its functions and powers under sub-article (1), on such

matters and subject to such conditions and modalities as may be

specified in the delegation, subject to the terms and duration as

determined by the Board of Governors, to the Executive Committee,

the Chief Executive Officer or one or more of the members of the

Executive Committee, any one or more of the sub-committees

established by the Executive Committee, or a function or unit of the

Authority, as may be specified.

(1) The Board of Governors shall also act as the

Resolution Authority, which shall be the authority appointed for the

purposes of Article 3 of the BRRD.

(2) The Resolution Authority shall appoint a Resolution Committee

which shall have all the powers assigned to the Resolution Authority

under the BRRD. The composition, powers and functions of the

Resolution Committee shall be governed by the provisions set out

in the First Schedule and in terms of any regulations made

hereunder. The Resolution Authority and the Resolution Committee

shall be operationally independent and shall act independently of

each other and of the Executive Committee.

For the better carrying out and implementation of the

provisions of the First Schedule and the BRRD, the Authority,

through the Resolution Committee, may, from time to time, issue

and publish Recovery and Resolution Rules which shall be binding

on institutions and others as may be specified therein. Such Rules

may lay down additional requirements and conditions in relation to

the recovery and resolution of institutions, the conduct of their

business, their responsibilities, and any other matters as the

Resolution Committee may consider appropriate.

The legal and judicial representation of the Authority shall

vest in the Chief Executive Officer, or in such other person as the

Board of Governors may determine for any specific case or class of

cases

Provided that the Board of Governors may from time to

time appoint any one or more of its members, or any one or more of

the officers or employees of the Authority, to appear in the name

and on behalf of the Authority in any judicial proceedings or on any

act, contract, instrument or other document whatsoever, or in any

class or category thereof.

(1) The Executive Committee shall be responsible for the

implementation of the strategy and policies of the Authority, for the

approval of regulation, for the approval of and for the issuing of

licences and other authorisations, and for the monitoring and

supervision of persons and other entities licensed or authorised by

the Authority in the financial services sector, for the enforcement

of the regulatory framework in the financial services sector, for

carrying out the day-to-day management and the finances of the

Authority including human resources and ancillary services, and

for the general coordination of the Authority’s administrative

affairs.

(2) The Executive Committee may from time to time delegate

in writing its functions and powers, on such matters and subject to

such conditions and modalities as may be specified in the

delegation, subject to the terms and duration as determined by the

Executive Committee, to the Chief Executive Officer or one or more

of the members of the Executive Committee, any one or more of the

sub-committees established by the Executive Committee or a function

or unit of the Authority, as may be specified. Any decisions so made

shall be approved by the Board of Governors and subsequently made

public on the website of the Authority.

(3) The Executive Committee shall also be responsible for

establishing and empowering sub-committees, units and functions.

The Executive Committee shall determine the respective remits of

the sub-committees, units and functions.

(4) The Executive Committee shall consist of the Chief

Executive Officer, who shall preside thereat, the General Counsel,

and of each of the Chief Officers responsible respectively for

supervision, enforcement, corporate services, operations, strategy,

policy and innovation, and for any other aspect falling within the

remit of the Authority as may be determined by the Board of

Governors.

(5) The Executive Committee shall designate one of the

officers of the Authority, engaged in any of its functions mentioned

in sub-article (1), to act as Secretary to the Executive Committee

for such period and under such terms as the Executive Committee

shall deem appropriate.

(6)

It shall be the duty of the Secretary to make the necessary

preparations for the meetings of the Executive Committee and to

keep minutes of those meetings.

(7) The provisions of article 7, in so far as applicable, shall

apply to the meetings of the Executive Committee as they apply to

the meetings of the Board of Governors.

(8) The Executive Committee may from time to time make

internal arrangements to authorize one or more of the senior

officers, responsible for the approval of and for the issuing of

licences and other authorisations, to sign a licence, category of

licences or any other form of authorisation as it may deem

appropriate.

Deleted by VIII of 2019

(1) The Enforcement Decisions Committee shall decide

or take such action as it considers appropriate, promptly and

without delay, in relation to any recommendation for enforcement

action brought before it by the Chief Officer responsible for

Enforcement or any other official from the Directorate responsible

for enforcement

Provided that the Executive Committee may take any

enforcement action itself if

(a) it considers that, in the particular case, the action

proposed should occur before it is practicable or

possible to convene the Enforcement Decisions

Committee; or

(b) it considers that, in the particular case, an urgent

decision on the proposed action is necessary to protect

the interests of consumers.

(2) The members of the Enforcement Decisions Committee

shall be appointed by the Board of Governors.

(3) The Executive Committee may, after seeking the approval of the

Board of Governors, establish a detailed remit for the Enforcement

Decisions Committee and may also establish that certain enforcement

action, which it does not deem to be material, may be taken by the Chief

Officer responsible for enforcement.

(4) The Enforcement Decisions Committee shall be composed

of a chairman and two (2) other members appointed by the Board of

Governors for such term, being a period of not more than three (3)

years, as may be specified in the letter of appointment, and shall be

eligible for reappointment; and shall receive such remuneration as

the Authority may from time to time determine.

(5) The chairman of the Enforcement Decisions Committee

shall be an advocate who for a period of, or periods amounting in

the aggregate to, not less than seven (7) years has served as an

advocate in Malta or served as a judge or magistrate in Malta, or

partly so practiced and partly so served, and who in the opinion of

the Board of Governors possesses the necessary expertise and

experience in the business or regulation of financial services, or in

finance.

(6) The members of the Enforcement Decisions Committee

shall be persons who in the opinion of the Board of Governors

possess the necessary expertise and experience in the business or

regulation of financial services, or in finance.

(7) For the better carrying out of its functions, and before

arriving at any decision, the Enforcement Decisions Committee

may decide to hear any person in relation to any matter being

considered by the said Committee.

(8) Before arriving at a decision, the Enforcement Decisions

Committee shall serve written notice of the decision it proposes to

take on the persons being the subject of the recommendation for

enforcement action being considered by the said Committee,

setting out the reasons for its proposed decisions. Such notice shall

also specify therein the period in which the person upon whom the

notice is served shall be entitled to make representations in writing

to the Enforcement Decisions Committee as to why the proposed

decision should not be taken, in accordance with the relevant

provisions of the Acts administered by the Authority

Provided that the Enforcement Decisions Committee may,

where it decides that the matter is urgent, take the final decision

prior to the expiration of the period stated in the notice.

(9) The Executive Committee, with the approval of the Board

of Governors, may make rules governing the procedure for

conducting any hearings that may take place before the

Enforcement Decisions Committee.

(10) The Board of Governors shall designate one of the officers

of the Authority, engaged in any of its functions mentioned in

article 9(1), to act as Secretary to the Enforcement Decisions

Committee for such period and under such terms as the Board of

Governors shall deem appropriate.

(11) It shall be the duty of the Secretary to make the necessary

preparations for the meetings of the Enforcement Decisions

Committee and to keep minutes of those meetings.

(12) The Enforcement Decisions Committee shall report to the

Board of Governors on the progress made in its area of

competence

Provided that the Enforcement Decisions Committee shall

be independent of the Executive Committee and the Board of

Governors, and shall act independently of them.

(13) The provisions of article 7, in so far as applicable, shall

apply to the meetings of the Enforcement Decisions Committee as

they apply to the meetings of the Board of Governors.

(14) The provisions of paragraphs (a), (b), (d) and (e) of article 6(6)

MALTA FINANCIAL SERVICES AUTHORITY

shall, as far as applicable, mutatis mutandis, apply to the office of the

chairman and members of the Enforcement Decisions Committee.

(1) It shall be the function of the Enforcement Directorate

(a) deal with enforcement

(i)

under the provisions of this Act or any other Act

administered by the Authority, or of any

regulations or rules made thereunder; or

(ii) in relation to any of the conditions imposed in a

licence or other authorisation; or

(iii) in relation to any administrative measure or

penalty imposed by the Authority in terms of

this Act or any other Act administered by the

Authority, or of any regulations or rules made

thereunder;

(b) investigate any referrals made to it by any other organ

of the Authority;

(c) conduct investigations in relation to any enforcement

action;

(d) make recommendations for any enforcement action to

the Enforcement Decisions Committee established in

article 11;

(e) implement any decision of the Enforcement Decisions

Committee, including the making of appropriate

arrangements for such purpose;

(f)

assist, as applicable, in the conduct of proceedings

before the Financial Services Tribunal in relation to

such enforcement action;

(g) carry out such other duties as may be assigned to it by

the Executive Committee.

(2) The Enforcement Directorate shall, for the purpose of

discharging its functions, have all the powers vested in the

Authority under this Act or any other Act administered by the

Authority.

(3) The Enforcement Directorate shall be composed of the

Chief Officer responsible for enforcement, and such number of

officers and employees as may be required for the proper exercise

of its functions.

(1) It shall be the function of the Audit Committee to

(a) determine whether the governance, controls and risk

management processes of the Authority in

implementing agreed policies and strategies across the

activities of the Authority are adequate, effective and

functioning;

(b) determine the Internal Audit Unit’s remit and role;

(c) evaluate the performance of the Internal Audit Unit set

out under article 12B;

(d) carry out such other functions as may be assigned to it

by the Board of Governors.

(2) In carrying out its functions the Audit Committee shall

have all powers necessary to enable it to perform its functions

properly, and the provisions of sub-articles (4) and (5) of article

12B shall, mutatis mutandis, apply to the Audit Committee.

(3) In carrying out its functions under sub-article (1)(b), the

Audit Committee shall consult the Chief Executive Officer regarding

new tasks and the processes applied throughout the activities of the

Authority to ensure full coverage of the activities of the Authority

by the Internal Audit Unit. In so far as its functions under sub-

article (1)(c) are concerned, the Audit Committee shall take into

con side rat io n the in tern al aud it pl an and an y aud it qu ali ty

assurance assessment reports.

(4) The Audit Committee shall be composed of a Chairman and

two other members appointed by the Board of Governors, for such

term, being a period of not more than three years, as may be

specified in the letter of appointment, and shall be eligible for

re a pp oi nt m e nt ; a n d s ha ll r e c e ive such r emuneration as the

Authority may from time to time, determine.

(5) The Authority shall consult the Audit Committee before

appointing one or more suitable officers to perform the functions of

Director and Deputy Director within the Internal Audit Unit.

(6) The Audit Committee shall report to the Board of

Governors on the progress made in its area of competence and on

the progress made by the Internal Audit Unit.

(7) The Audit Committee shall be independent of the Board of

Governors, and shall act independently of it.

(8) The Audit Committee shall designate one of the officers of

the Authority as its Secretary for such period and under such terms

as the Board of Governors shall deem appropriate.

(9)

The provisions of article 7 shall, as far as applicable,

mutatis mutandis apply to the meetings of the Audit Committee,

and the provisions of paragraphs (a), (b), (d) and (e) of article 6(6)

shall, as far as applicable, mutatis mutandis apply to the office of

the Chairman and the members of such Committee.

(1) It shall be the function of the Internal Audit Unit to

examine, evaluate and report upon the adequacy and effectiveness

of the governance, internal control and risk management processes

of the Authority. To this effect, in addition to any other objectives

that may be assigned to it by the Board of Governors or the Audit

Committee within the purposes of this article, the Internal Audit

Unit shall determine that

(a) adequate internal controls are in place and operating

effectively and efficiently;

(b) risks are appropriately identified and managed;

(c) interaction with the various units of the Authority

occurs as needed;

(d) financial, managerial and operating information is

accurate, reliable, integral and timely;

(e) the actions of officers and employees of the Authority

are in compliance with the policies and procedures of

the Authority, and applicable laws and regulations;

(f)

resources are acquired economically, used efficiently,

and adequately protected;

(g) plans and objectives of the Authority are achieved or

are being implemented as planned;

(h) quality and continuous improvement are fostered in

the control processes of the Authority;

(i)

significant regulatory issues impacting on the

Authority are recognised and addressed appropriately.

(2) The Internal Audit Unit shall be composed of the Director

of the Unit, and any number of employees as may be required in

order to carry out its functions properly.

(3) In carrying out its functions, the Internal Audit Unit shall,

as appropriate, apply international best practice guidance and

standards and shall adhere to internationally accepted principles of

ethics for internal auditors.

(4) For the better performance of its functions, the Internal

Audit Unit may audit all parts of the Authority, and shall have full,

complete unrestricted access to any records, files, physical

properties, electronic data, and personnel of the Authority relevant

to the performance of an audit.

(5) Officers or employees of the Authority shall fully cooperate

with the Internal Audit Unit in the exercise of its functions.

(6) The Internal Audit Unit shall report to the Audit Committee

on the progress made in its area of competence.

(1) The Authority may appoint a General Counsel, Chief

Officers, Heads, Deputy Heads and such other officers and employees

as it may consider necessary for the efficient discharge of its functions,

powers and duties under this Act or any other law. The appointment of

the General Counsel and Chief Officers shall be made by the Chief

Executive Officer in consultation with the Board of Governors. The

appointment of officers and other employees of the Authority other

than the General Counsel and the Chief Officers shall be made by the

Executive Committee on such terms and conditions as the Board of

Governors may establish.

(2)

For the purposes of the Criminal Code and of any provision

of penal nature in any other law, the members of the Authority, and

every officer or employee thereof, shall be deemed to be public

officers.

(1) The Authority shall arrange for the dissemination in

such form and manner as it considers appropriate of such

information and advice as it may consider expedient to give the

public about matters relating to the exercise of its functions under

this Act or any other enactment.

(2) In arranging for the publication of any such information or

advice, the Authority shall have regard to the duty of professional

secrecy and, as far as practicable shall refrain from publishing any

matter which relates to the private affairs of an individual, where

the publication of that matter would or might, in the opinion of the

Authority, seriously and prejudicially affect the interest of that

individual.

Without prejudice to any provisions of other laws, the

M i n is te r m a y, a c ti n g o n th e a dv i c e o f t he Au t h or i t y, m a k e

regulations to establish, co-ordinate, amalgamate and otherwise

regulate compensation schemes or sub-schemes or other similar

arrangements in the financial services sector

(a) for the provision of compensation where licence

holders, or categories thereof, are unable to satisfy

their obligations towards depositors, investors, policy-

holders or other claimants in respect of any liability

incurred by them in connection with the carrying out

of any activity in regard to which they are licensed or

otherwise authorized, and

(b) for the provisions of compensation arising out of or in

connection with any other liability as may be

prescribed, and to regulate the management and the

financing of any such schemes or arrangements for

compensation and the contributions and levies to be

paid thereto, and such regulations may make different

provision for different classes of licence holders and

claimants.

16.(1)(a) Without prejudice to any other function and power

under this or any other law, the Authority shall, in the

exercise of its functions and powers under this Act,

have the right to reasonable access and entry to any

business premises and, or offices of a licence holder,

access to any relevant documentation and, or records of a

licence holder, or of any other person who appears to be

in possession of relevant documentation and, or records,

including access to any telephonic or other records and

access to any other information relating or pertaining

to the activities licensed or authorised by the Authority

or otherwise falling under its supervisory or regulatory

functions. The Authority shall also have the right to

issue orders for the freezing of funds and, or other

assets including bank accounts in the name of the

MALTA FINANCIAL SERVICES AUTHORITY

licence holder or any other third party or parties as

may be indicated and for such time and under such

conditions as the Authority may set out in writing. The

order may also prohibit a licence holder from

transferring, disposing or losing possession of any

such funds or assets. These orders may also be issued

at the request of a foreign enforcement or supervisory

authority.

(b) The directors and managers, by whatever name

designated, or any other persons who are or have been

in charge of the operations or activities falling under

the supervisory or regulatory functions of the

Authority shall assist and shall collaborate with the

Authority in order to enable it to discharge its

functions, and shall collate and transmit without any

undue delay such information and documentation as

the Authority may reasonably request from time to

time.

(c) The Authority may exercise the powers under this

article notwithstanding articles 17A and 17B and any

provision as may be contained in any other law.

(2) The Authority may, for the better carrying out of the

provisions of this Act or any other Act administered by it, from time

to time

(a) issue and publish Rules regulating the procedures and

duties of persons licensed or authorised by it, or falling

under its regulatory or supervisory functions. Such Rules

may

(i) lay down additional requirements and conditions in

relation to activities of such persons, the conduct

of their business, their relations with customers,

the public and other parties, their responsibilities

to the Authority, reporting requirements, financial

resources,

capital

adequacy and

related

requirements, and any other matters as the

Authority may consider appropriate;

(ii) provide for the returns, statements and notices to

be made or given for any purposes in regard to

which the Authority exercises supervisory or

regulatory functions under this Act or any other

Act, and the form and contents thereof; and

(iii) prescribe the information that such persons are to

submit to the Authority

Provided that such Rules shall be binding on all

licence holders and others as may be specified

therein;

(b) issue a directive in writing requiring a person to do or to

refrain from doing any act, including such prohibitions,

restrictions and conditions as may be specified in the

directive; and any person to whom or to which the notice

is given shall obey, comply with and otherwise give

effect to any such directive within the time and in the

manner stated in the directive;

(c) appoint a qualified person or otherwise require a person

to appoint a qualified person, whenever it deems it

necessary or expedient, to carry out such tasks under such

terms and conditions as the Authority may direct. All fees

and expenses to be charged by the qualified person in

relation to, or incidental to such appointment, shall be

paid by the person in relation to whom the qualified

person is appointed, unless determined otherwise by the

Authority. The Authority may issue Rules or guidelines

laying down the procedures and requirements relating to

such appointment; and such Rules may also lay down the

powers, duties and obligations of the qualified person.

(2A) (a) Without prejudice to the powers conferred to the

Authority under this Act or any other law, the Authority may

appoint a skilled person to assist it in the fulfilment of any of its

functions under this Act or any other law.

(b) Where a skilled person is appointed in terms of this

sub-article, the following provisions shall apply

(i)

any person appointed as a skilled person shall be

a person who, in the opinion of the Executive

Committee, possesses the expertise necessary to

provide the assistance required by the Authority

in terms of his appointment;

(ii) the person in relation to whom the skilled person

is appointed shall co-operate with the skilled

person and provide any information and

documentation, as may be required, by such

skilled person in the fulfilment of his

appointment;

(iii) where such skilled person is appointed in

relation to a particular person, the Authority may

require such person to pay all fees and expenses

charged by the skilled person;

(iv) the Authority may require the skilled person,

inter alia, to provide it with a report relating to

the assistance provided to the Authority in terms

of his appointment; and

(v) a report drawn up by the skilled person in terms

of sub-paragraph (iv) and endorsed by the

Authority in writing, shall for all purposes have

the same effect as a document drawn up by the

Authority

Provided that where a skilled person is

appointed to draw up an independent report, this

provision shall not apply with respect to such

independent report.

(3) Without prejudice to any other powers that may be exercised

by the Authority in terms of this Act or of any other law, where any

person contravenes or fails to comply with any provision of this Act or

any other Act administered by the Authority, with any regulations or

Rules issued thereunder, with any of the provisions of the Disclosure

Regulation, with any of the provisions of Articles 5, 6 or 7 of the

Taxonomy Regulation, with any of the conditions imposed in a licence

issued by the Authority or with any directives issued by the Authority,

the Authority may by notice in writing and without recourse to a court

hearing impose on any such person an administrative penalty which

may not exceed one hundred and fifty thousand euro (€150,000) for

each infringement or failure to comply, as the case may be.

(4) Where a notice as referred to in sub-article (3) or as referred to

in any other Act administered by the Authority or in any regulations or

Rules issued thereunder, has not been appealed, or where such notice

has been appealed, within fifteen days of the determination by the

Tribunal of such appeal, the administrative penalty as contained in

the notice or as reduced or increased by the decision of the Tribunal

shall be due to the Authority. Upon the service of a copy of the notice

or the decision, as the case may be, by means of a judicial act on the

person indicated in the notice or decision, the said notice or

decision shall constitute an executive title for all effects and

purposes of Title VII of Part I of Book Second of the Code of

Organization and Civil Procedure.

(5) The right of the Authority to obtain information from a

person who holds or has held a licence or other authorization, or

from any of the officials or employees of such person, shall not be

restricted, obstructed or precluded in any manner. Any gagging or

similar confidentiality obligation or other restrictive condition

arising from the legal or contractual relationship between such

person and his officials or employees shall be, in so far as it is

contrary to these provisions and impedes or restricts the right of the

Authority to receive information required in the pursuance of its

regulatory functions and duties arising under this or any other Act,

null and void.

(6) In furtherance of sub-article (5), the following provisions

shall apply

(a) any person who holds or has formerly held a license or

other authorization from the Authority, and the

officials and employees thereof shall, upon a written

request by the Authority, promptly provide the

Authority with any information that it may require as

provided in sub-article (5), and may not raise any

contractual gagging restriction or similar prohibition

or other confidentiality obligation arising or alleged to

arise under contract law or otherwise refuse to comply

with such a request of the Authority;

(b) no action for breach of contract and no disciplinary

measure may be taken, directly or indirectly, by a

person against any of its officials or employees for

providing the Authority with any information required

by the Authority as provided in sub-article (5); and any

contractual or disciplinary measure contrary to this

provision shall be null and void;

(c) for the purposes of this article

(i)

"information" shall include explanations and

other forms of assistance; and

(ii) "employees" and "officials" shall include former

employees and officials.

(7) Notwithstanding any provision as may be contained in any

other law for whose administration the Authority is responsible and

where circumstances so warrant, the Authority may issue

reprimands, warnings or take other similar disciplinary sanctions or

measures of whatever type as may be deemed warranted by the

circumstances and the nature and seriousness of the breach and

wrongdoing.

(8) Any administrative or disciplinary sanction or measure, of

whatever type, including reprimands or warnings, imposed or

decided by the Authority under any law for whose administration it

is responsible, shall be published in such medium and in such

manner and for such duration as may be deemed warranted by the

circumstances and the nature and seriousness of the breach or

wrongdoing. The Board of Governors may from time to time

establish policies and guidelines regarding the publication of

administrative sanctions and disciplinary measures.

(1) (a) Mingħajr preġudizzju għal kull funzjoni u setgħa

oħra taħt din il-liġi jew kull liġi oħra, l-Awtorità għandu jkollha,

meta tkun qiegħda teżerċita l-funzjonijiet u s-setgħat tagħha taħt

dan l-Att, id-dritt għal aċċess u dħul raġonevoli f ’kull fond

kummerċjali u, jew xi uffiċċju ta’ detentur ta’ liċenza, aċċess għal

kull dokumentazzjoni rilevanti u, jew records ta’ detentur ta’ liċenzja,

jew ta’ kull persuna oħra li tidher li għandha dokumentazzjoni

rilevanti u, jew records, inkluż aċċess għal kwalunkwe records

telefoniċi jew records ta’ xort’oħra jinkwadraw taħt il-funzjonijiet

superviżorji jew regolatorji tagħha. L-Awtorità għandu jkollha

wkoll id-dritt li toħroġ ordnijiet għall-iffriżar ta’ fondi u, jew kull

attiv ieħor inklużi kontijiet bankarji f’isem id-detentur ta’ liċenza

jew kull terza parti oħra hekk kif jista’ jiġi indikat u għal dak iż-

żmien u taħt dawk il-kondizzjonijiet li l-Awtorità tista’ tistabbilixxi

bil-miktub. L-ordni jista’ wkoll jipprojbixxi lil detentur ta’ liċenza

milli jittrasferixxi, ineħħi jew jitlef il-pussess ta’ fondi jew attiv

bħal dawk. Dawn l-ordnijiet jistgħu jinħarġu wkoll fuq talba ta’

infurzar barrani jew ta’ xi awtorità superviżorja.

(b) toħroġ direttiva bil-miktub fejn teħtieġ persuna li

t w e t t a q j e w li t on q o s m i ll i tw e t ta q x i a t t , i n k lu ż i d a w k il -

projbizzjonijiet, restrizzjonijiet u kondizzjonijiet li jistgħu jiġu

speċifikati fid-direttiva; u kwalunkwe persuna li lilha jingħata avviż

għandha tobdi, tikkonforma ruħha jew inkella tagħti effett lil

kwalunkwe tali direttiva fiż-żmien u bil-mod imsemmi fid-direttiva;

(ċ) L-Awtorità tista’ teżerċita s-setgħat tagħha taħt dan l-

artikolu minkejja l-artikoli 17A u 17B u kull dispożizzjoni li tista’

tinsab f’kull liġi oħra.

(2) L-Awtorità tista’, sabiex tkun tista’ twettaq aħjar id-

dispożizzjonijiet ta’ dan l-Att jew ta’ kull Att ieħor amministrat

minnha, minn żmien għal żmien

(a) toħroġ u tippubblika Regoli li jkunu jirregolaw il-

proċeduri u d-dmirijiet ta’ persuni li jkollhom liċenza

jew li jkunu awtorizzati minnha, jew li jkunu jaqgħu taħt

il-funzjonijiet regolatorji jew superviżorji tagħha. Dawk

ir-Regoli jistgħu

(i) jistipulaw ħtiġiet u kundizzjonijiet addizzjonali

dwar l-attivitajiet ta’ dawk il-persuni, it-tmexxija

tal-kummerċ tagħhom, ir-relazzjonijiet tagħhom

mal-klijenti, mal-pubbliku u ma’ partijiet oħra,

kull responsabbiltà lejn l-Awtorità, ħtiġiet ta’

rappurtar, riżorsi finanzjarji, adegwatezza kapitali

u ħtiġiet relatati, u kull ħaġa oħra hekk kif l-

Awtorità tista’ tqis li tkun adatta;

(ii) jipprovdu dwar il-prospetti, dikjarazzjonijiet u

avviżi li jkollhom isiru jew jingħataw għal kull

għan li dwaru l-Awtorità teżerċita funzjonijiet

superviżorji jew regolatorji taħt dan l-Att jew taħt

kull Att ieħor, u l-forma u l-kontenut tagħhom; u

(iii) jippreskrivu liema informazzjoni dawk il-persuni

għandhom jippreżentaw lill-Awtorità

Iżda dawk ir-Regoli għandhom ikunu jorbtu lid-

detenturi ta’ liċenza kollha kif ukoll oħrajn hekk kif

jista’ jiġi speċifikat fihom;

(b) toħroġ direttiva bil-miktub fejn tkun teħtieġ lid-detentur

ta’ liċenza jew ta’ xi awtorizzazzjoni oħra, u, jew lil xi

uffiċjal relattiv, li jagħmel jew li jżomm lura milli

jagħmel xi att, inklużi dawk il-projbizzjonijiet,

restrizzjonijiet u kondizzjonijiet li jistgħu jiġu speċifikati

fid-direttiva; u kull direttiva bħal dik tista’ tinħareġ għar-

rigward ta’ każijiet jew klassijiet ta’ każijiet speċifiċi;

kull detentur ta’ liċenza jew awtorizzazzjoni oħra u, jew

l-uffiċjal li l-avviż jiġi indirizzat lilu għandu jobdi,

jikkonforma ruħu u jagħti seħħ lil dik id-direttiva fiż-

żmien u bil-mod imsemmi fid-direttiva.

(ċ) taħtar persuna kwalifikata jew teħtieġ persuna li taħtar

persuna kwalifikata, meta tikkunsidra li dan hu xieraq

jew spedjenti, sabiex twettaq dawk il-kompiti taħt dawk

it-termini u l-kondizzjonijiet li l-Awtorità tista’ tordna.

Id-drittijiet u l-ispejjeż kollha maħruġa mill-persuna

kwalifikata fir-rigward jew inċidentali għal din il-ħatra,

għandhom jitħallsu mill-persuna li fir-rigward tagħha ġiet

appuntata l-persuna kwalifikata, sakemm ma jiġix

determinat mod ieħor mill-Awtorità. L-Awtorità tista’

toħroġ Regoli jew linji gwida li jistabbilixxu l-proċeduri

jew rekwiżiti relatati ma’ din il-ħatra; u dawn ir-Regoli

jistgħu wkoll jistabbilixxu l-poteri, dmirijiet u obbligi tal-

persuna kwalifikata.

(2A) (a) Mingħajr preġudizzju għas-setgħat mogħtija lill-

Awtorità taħt dan l-Att jew kwalunkwe liġi oħra, l-Awtorità tista’

tappunta persuna mħarrġa sabiex tassistiha fit-twettiq ta’

kwalunkwe mill-funzjonijiet tagħha taħt dan l-Att jew kwalunkwe

liġi oħra.

(b) Fejn tinħatar persuna mħarrġa skont dan is-

subartikolu, għandhom japplikaw id-dispożizzjonijiet

li ġejjin

(i)

kwalunkwe persuna appuntata bħala persuna

mħarrġa għandha tkun persuna li, fil-fehma tal-

Kumitat Eżekuttiv, ikollha l-kompetenza esperta

meħtieġa sabiex tipprovdi l-assistenza rikjesta

mill-Awtorità fit-termini tal-ħatra tagħha;

(ii)

il-persuna li fir-rigward tagħha l-persuna

mħarrġa ġiet appuntata għandha tikkoopera mal-

persuna mħarrġa u tipprovdi kwalunkwe

informazzjoni u dokumentazzjoni, kif jista’ jkun

meħtieġ, mit-tali persuna mħarrġa fit-twettiq tal-

ħatra tagħha;

(iii) fejn din il-persuna mħarrġa tkun appuntata fir-

rigward ta’ persuna partikolari, l-Awtorità tista’

tirrikjedi li t-tali persuna tħallas id-drittijiet u l-

ispejjeż kollha maħruġa mill-persuna mħarrġa;

(iv) l-Awtorità tista’ teħtieġ lill-persuna mħarrġa,

inter alia, sabiex tipprovdilha rapport relatat

mal-assistenza provduta lill-Awtorità fit-termini

tal-ħatra tagħha; u

(v) rapport imħejji mill-persuna mħarrġa f’termini

tas-subparagrafu (iv) u approvat bil-miktub mill-

Awtorità, għandu għall-iskopijiet kollha jkollu l-

istess effett bħal dokument imħejji mill-

Awtorità

Iżda fejn persuna mħarrġa tkun appuntata sabiex

tħejji rapport indipendenti, din id-dispożizzjoni

m’għandhiex tapplika fir-rigward ta’ tali rapport

indipendenti.

(3) Bla ħsara għal xi poteri oħra li jistgħu jiġu eżerċitati mill-

Awtorità taħt dan l-Att jew taħt xi liġi oħra, fejn xi persuna tikser jew

tonqos li tħares id-dispożizzjonijiet ta’ dan l-Att jew xi Att ieħor

amministrat mill-Awtorità, ta’ xi regolamenti jew Regoli maħruġa

taħthom, xi dispożizzjonijiet tar-Regolament dwar id-Divulgazzjoni,

xi dispożizzjonijiet tal-Artikoli 5, 6 jew 7 tar-Regolament tat-

Tassonomija, xi kondizzjonijiet imposti f ’liċenzja maħruġa mill-

Awtorità jew xi direttivi maħruġa mill-Awtorità, l-Awtorità tista’

b’avviż bil-miktub u mingħajr il-ħtieġa ta’ smigħ fil-qorti timponi fuq

tali persuna penali amministrattiva li ma tkunx ta’ iżjed minn mija u

ħamsin elf euro (€150,000) għal kull ksur jew nuqqas ta’ konformità,

skont il-każ.

(4) Meta ma jkunx sar appell minn avviż bħal dak imsemmi fis-

subartikolu (3) jew imsemmi f’xi Att ieħor amministrat mill-Awtorità

jew f’xi regolamenti jew Regoli maħruġin taħtu jew meta jkun sar

appell minn dak l-avviż, fi żmien ħmistax-il ġurnata minn meta jiġi

d e ċ i ż d a k l - a p p e l l m i t - Tr i b u n a l , i l - p e n a l i a m m i n i s t r a t t i v a

msemmija fl-avviż jew kif imnaqqsa jew miżjuda b’deċiżjoni tat-

Tribunal għandha tkun dovuta lill-Awtorità. Malli tiġi notifikata

kopja tal-avviż jew tad-deċiżjoni, skont il-każ, permezz ta’ att

ġudizzjarju lill-persuna indikata fl-avviż jew fid-deċiżjoni, dak l-

avviż jew dik id-deċiżjoni jkunu jikkostitwixxu titolu eżekuttiv

għall-effetti u l-finijiet kollha tat-Titolu VII tat-Taqsima I tat-Tieni

Ktieb tal-Kodiċi ta’ Organizzazzjoni u Proċedura Ċivili.

(5) Id-dritt tal-Awtorità li tikseb tagħrif minn persuna li

għandha jew kellha liċenza jew awtorizzazzjoni oħra, jew

mingħand xi wieħed mill-uffiċjali jew impjegati ta’ dik il-persuna,

ma għandu jkun ristrett, imfixkel jew prekluż b’ebda mod. Gagging

jew obbligu ta’ kunfidenzjalità simili jew xi kondizzjoni ristrettiva

oħra li toħroġ minn relazzjoni legali jew kontrattwali bejn dik il-

persuna u l-uffiċjali jew l-impjegati tagħha, għandhom ikunu, sa

fejn dawn imorru kontra dawn id-dispożizzjonijiet u jimpedixxu

jew jirrestrinġu d-dritt li l-Awtorità għandha li tirċievi t-tagħrif

meħtieġ konformement mal-funzjonijiet u d-dmirijiet regolatorji li

joħorġu taħt dan l-Att jew kull Att ieħor, nulli u bla effett.

(6)

B’konsegwenza tas-subartikolu (5), għandhom japplikaw

dawn id-dispożizzjonijiet li ġejjin

(a) kull persuna li għandha jew kellha liċenza jew

awtorizzazzjoni oħra mill-Awtorità, u l-uffiċjali jew l-

impjegati tagħha għandhom, fuq talba bil-miktub tal-

Awtorità, minnufih jipprovdu lill-Awtorità b’kull

tagħrif li din tista’ teħtieġ kif hemm provdut dwaru fis-

subartikolu (5), u ma jistgħu jqajjmu ebda restrizzjoni

kontrattwali ta’ gagging jew impediment simili jew ta’

xi obbligu ieħor ta’ kunfidenzjalità li jinqalgħu jew

allegatament jinqalgħu taħt il-liġi dwar il-kuntratti jew

xort’oħra jirrifjutaw li jħarsu talba bħal dik li ssir mill-

Awtorità;

(b) l-ebda azzjoni għal ksur ta’ kuntratt u l-ebda miżura

dixxiplinarja ma tista’ tittieħed, direttament jew

indirettament, minn persuna kontra xi wieħed mill-

uffiċjali jew impjegati tagħha għax ikun pprovda xi

tagħrif meħtieġ mill-Awtorità, u liema tagħrif kien

meħtieġ mill-Awtorità skont kif provdut fis-

subartikolu (5); u kull miżura kuntrattwali jew

dixxiplinarja li tmur kontra din id-dispożizzjoni tkun

nulla u bla effett;

(ċ) għall-finijiet ta’ dan l-artikolu

(i)

"tagħrif" tinkludi spjegazzjonijiet u forom oħra

ta’ assistenza; u

(ii) "impjegati" u "uffiċjali" tinkludi impjegati u

uffiċjali preċedenti.

(7) Minkejja kull dispożizzjoni li jista’ jkun hemm f’kull liġi

oħra li l-Awtorità tkun responsabbli biex tamministra u meta ċ-

ċirkostanzi jkunu hekk jeħtieġu, l-Awtorità tista’ toħroġ kull

twiddib, twissija jew tadotta sanzjonijiet dixxiplinari oħra bħal

dawk jew miżuri ta’ liema tip ikunu u li jistgħu jitqiesu meħtieġa

miċ-ċirkostanzi u mix-xorta u l-gravità tal-ksur u għemil ħażin.

(8) Kull sanzjoni jew miżura amministrattiva jew dixxiplinari,

ta’ liema tip tkun, inkluż kull twiddib jew twissija, imposti jew

d e ċ i ż i m i l l - Aw t o r i t à t a ħ t l i ġ i l i t k u n r e s p o n s a b b l i b i e x

tamministraha, għandha tiġi pubblikata b’dak il-mezz u b’dak il-

mod u għal dak iż-żmien li jista’ jitqies li jkun meħtieġ miċ-

ċirkostanzi u x-xorta u l-gravità tal-ksur jew għemil ħażin. Il-Bord

tal-Gvernaturi jista’ minn żmien għal żmien jistabbilixxi kull

politika u linja gwida li jkunu jirrigwardaw il-pubblikazzjoni ta’

sanzjonijiet amministrattivi u miżuri dixxiplinari.

(1) The Authority shall, on an annual basis, contact the

office of the Attorney General and the Commissioner of Police and

seek information about any criminal sanctions imposed for any

breaches of any provisions of any Act or regulations transposing

MiFID. The office of the Attorney General and the Commissioner

of Police shall co-operate with the Authority and shall, where

relevant, send the Authority a copy of the final judgement in

relation to any criminal sanctions imposed. The Authority shall

submit such copy of the final judgement to the European Securities

and Markets Authority (ESMA).

(2) The Authority shall, on an annual basis, contact the office of

the Attorney General and the Commissioner of Police and ask for

anonymised and aggregated data regarding all criminal investigations

undertaken and all criminal sanctions imposed for any breaches of any

provisions of any Act or regulations transposing MiFID. The

Authority shall forward such information to the European Securities

and Markets Authority (ESMA).

(1) Other than for the proper discharge of their duties or

functions under this or any other Act, or as may be otherwise

provided in any other law, the members of the Board of Governors

or of any other organ of the Authority, and the officers and

employees of the Authority shall treat any information acquired in

the discharge of their duties as confidential, and shall not, directly

or indirectly, disclose such information to any other person, except

with the consent of the person who had divulged the information.

For the purposes of this sub-article, "employees" and "officials"

shall include former employees and officials.

(2)

Notwithstanding the foregoing provisions of this article, the

Authority may, pursuant to a written request, disclose information

to

(a) an overseas regulatory authority or body carrying out

similar or equivalent functions in order to assist the

same in matters related to the regulation and

supervision of financial services and the registration of

commercial partnerships;

(b) local or overseas enforcement or regulatory authorities,

bodies or other entities, or a network or grouping

comprising such local or overseas enforcement or

regulatory authorities, bodies or other entities, or both,

for the purpose of preventing, detecting, investigating or

prosecuting the commission of acts that amount to or are

likely to amount to a criminal offence under any law or to

an offence or breach of a regulatory nature, whether in

Malta or overseas;

(c) any other body or authority formed or established

under Maltese law on matters in respect of which such

body or authority may have a regulatory, supervisory,

judicial, registration or licensing function in terms of

law

Provided that the Authority shall disclose the requested

information where required or requested to do so within the terms

of Malta’s international commitments, or where so required within

the terms of understanding assumed in bilateral or multilateral

agreements for the exchange of information and other forms of

collaboration, including a request arising under a Memorandum of

Understanding concluded with the Authority.

(3) The obligation of professional secrecy shall not prevent the

Authority from exchanging or transmittingconfidential information to

the European Central Bank (ECB), the European Securities and

Markets Authority (ESMA), the European Banking Authority (EBA),

the European Insurance and Occupational Pensions Authority

(EIOPA), colleges of supervisors or to the European Systemic Risk

Board (ESRB), subject to conditions and restrictions emanating from

European Union legislation.

(4) Information divulged to the Authority under conditions of

confidentiality in pursuance to a request within the terms of a

bilateral or multilateral agreement, memorandum of understanding

or other similar document or arrangement for the exchange of

information or for any other form of collaboration with any

authority, body or other entity as provided for in this article shall be

treated as confidential and no Court or Tribunal may order the

disclosure of such information unless the prior written approval of

any such authority, body or other entity is obtained.

When upon information received from the Authority, the

Attorney General has reasonable cause to suspect that a person is

guilty of a breach of this Act or of any other Act, the Attorney General

may request the Criminal Court to issue an Attachment Order and the

provisions of article 35 of the Proceeds of Crime Act shall apply.

When a person is charged with a criminal offence in breach of

this Act or with an offence which is a relevant offence in terms of the

Proceeds of Crime Act, the prosecution may apply to the Court of

Magistrates for a freezing order and the provisions of article 36 of the

said Act shall apply.

(1) The Central Bank of Malta and the Authority shall on

r e q u e s t e x c h a n ge i n f or m a t i o n i n t h e i r p o s s e s s i on w h i c h i s

necessary for the discharge by the Central Bank of its duties under

the Central Bank of Malta Act, and by the Authority under this Act

or any other law.

(2) The Authority may, subject to such conditions it may deem

fi t to im p o s e a n d t o suc h p r oc e d u re s as m a y be a p pl i c a b l e

according to law, disclose information to overseas central banks, the

European System of Central Banks, the European Central Bank and

other authorities responsible for monetary policy and, where

appropriate to other overseas public authorities responsible for

overseeing payment systems, where such information relates and is

connected to their respective functions in terms of law.

(1) The Authority may investigate any matter which

(a) relates to the functions exercisable by the Authority

under this Act or any law, and

(b) is the subject of a representation (other than one

appearing to the Authority to be frivolous) made to the

Authority by or on behalf of a person appearing to the

Authority to have an interest in that matter.

(2) Where the Authority has investigated any matter under this

article, it shall prepare a report on that matter and (subject to any

obligation with respect to professional secrecy) shall send a copy of

any such report to such of the following persons as it thinks

appropriate, that is to say

(a) any person to whom the report refers or who appears to

the Authority to have an interest in the matter to which

the report relates;

(b) any person whose functions under any enactment

appear to the Authority to be exercisable in relation to

that matter;

(c) any person who appears to the Authority to be a person

who ought to take account of the report in determining

how to act in relation to that matter.

Deleted by Act XVI. 2017.44.

(1) The Minister, acting on the advice of the Authority,

may make regulations to transpose, implement and give effect to.

the provisions and requirements of Directives, Regulations and any

other legislative measures of the European Union requiring

transposition and, or implementation, as they may be amended

from time to time, including any implementing measures that have

been or may be issued thereunder and relating to licence holders and

others as may be specified therein; regulations made under this

paragraph, and strictly related to transposition or implementation as

aforesaid, may provide that any provision of this Act or of any other

law shall not apply to matters falling under the regulations, and that in

so far as any of the provisions of the regulations are inconsistent with

the provisions of this Act or of any other law, said provisions in any

such regulations shall prevail.

(2) The Minister, acting on the advice of the Authority, may

make regulations to give better effect to the provisions of this Act,

and without prejudice to the generality of the foregoing may, by

such regulations, prescribe anything that is to be or which may be

prescribed and provide for any matter consequential, incidental to

or connected with any of the above matters.

(2A) The Minister, acting on the advice of the Authority, may make

regulations to impose such fees and charges in respect of any request,

application or other matter that may be submitted to the Authority

under this or any other Act, including the fees and charges in respect of

any permission, licence, authorisation, exemption or other benefit, as

well as any fees and charges in respect of the Authority’s regulatory,

supervisory or investigative functions under this or any other law,

including the Authority’s function to provide training, knowledge and

education on all matters relating to financial services.

(3) Where regulations have been made in terms of this article,

the Authority may issue Rules for the better carrying out of, and to

better implement, the provisions of the regulations.

(4)

Regulations made under this article may impose

(a) administrative penalties which may not exceed one

hundred and fifty thousand euro (€150,000) for each

infringement or failure to comply, as the case may be;

(b) punishments or other penalties in respect of any

offence, not exceeding a fine (multa) of one hundred

and fifty thousand euro (€150,000) or imprisonment

for a term not exceeding one year, or both such fine

and imprisonment; and

(c) administrative penalties and fines higher than one

hundred and fifty thousand euro (€150,000), where

deemed necessary or appropriate for any contravention

of or failure of compliance with any EU Directive or

EU Regulation or of any regulations made under this

article to transpose or to give effect to any EU

Directive or EU Regulation.

The Minister may, acting on the advice of the Authority,

make regulations to regulate distance selling arrangements in

relation to financial services and the conclusion of agreements

where the consumer and other purchasers and the provider of the

service are at a distance from each other, and for this purpose to set

out the form and procedure for concluding such distance selling

agreements, to provide for the inclusion or exclusion of particular

ter m s a n d c o nd it io n s , t o es t a b li s h a co ol in g -o ff p e r io d f or

consumers, to lay down thresholds and exemptions, and to establish

minimum consumer rights, and to introduce measures to make

offers for such agreements more transparent and informative, and

to regulate any other aspect of distance selling.

(1) The Minister may, acting on the advice of the

Authority, make regulations for the transposition of Directive 2002/

87/EC of the European Parliament and of the Council of 16

December 2002 and to provide for the supplementary supervision

of credit institutions, financial institutions, insurance undertakings

and investment firms in a financial conglomerate, and to otherwise

regulate the supervision of financial conglomerates and financial

groups with crosssectoral financial activities.

(2) Regulations made by the Minister in virtue of sub-article

(1) shall, in particular and without prejudice to the authority vested

in the Minister by the said sub-article -

(a) provide for the appointment of a co-ordinator

responsible for coordination and examination of

supplementary supervision, for the assessment of the

financial situation of a group, including solvency

requirements, risk concentration and intra-group

transactions, and the means for obtaining from the

entities within a financial group and from other

overseas regulatory authorities, the information

necessary for the performance of this supplementary

supervision and may provide for consultation and the

sharing and exchange of information with overseas

regulatory authorities, as may be necessary;

(b) provide for the establishment and imposition of

administrative penalties or other measures for the

contravention of any of the regulations, and to provide

for appeals therefrom to the Financial Services

Tribunal.

MALTA FINANCIAL SERVICES AUTHORITY

(1) The Minister, acting on the advice of the Resolution

Authority, may make regulations for the following purposes

(a) to transpose, implement, and, or give effect to the

requirements of the BRRD;

(b) to better implement the provisions of the First

Schedule;

(c) to provide for powers and functions of the Resolution

Committee;

(d) to establish and impose administrative penalties and

other administrative measures on institutions or others

as may be specified therein;

(e)

to prescribe that a breach of any regulations made

under this Act may amount to a criminal offence as

may be specified, and for this purpose such regulations

may impose punishments in respect of any breach, not

exceeding a fine (multa) of two million euro

(€2,000,000) or imprisonment for a term not exceeding

three years, or both such fine and imprisonment.

(2) Where regulations have been made in terms of this article,

the Authority, through the Resolution Committee, may issue

Recovery and Resolution Rules within the meaning of article 7C

for the better carrying out of, and to better implement, the

provisions of the regulations.

The Minister may, acting on the advice of the Authority,

make regulations for the following purposes

(a) to implement and, or give effect to

(i)

the requirements of Regulation (EU) 2016/1011

of the European Parliament and of the Council

of 8 June 2016 on indices used as benchmarks in

financial instruments and financial contracts or

to measure the performance of investment funds

and amending Directives 2008/48/EC and 2014/

17/EU and Regulation (EU) No. 596/2014, and

to otherwise regulate the supervision of

supervised entities within the meaning of

Regulation (EU) 2016/1011; and

(ii) the requirements of Regulation (EU) 2015/2365

of the European Parliament and of the Council

of 25 November 2015 on transparency of

securities financing transactions and of re-use

and amending Regulation (EU) No. 648/2012,

and to otherwise regulate the supervision of

financial counterparties and non-financial

counterparties within the meaning of Regulation

(EU) 2015/2365;

(b) where regulations have been made in terms of this

article, the Authority may issue Rules for the better

carrying out of, and to better implement, the

provisions of the regulations;

(c) to establish and impose administrative penalties and

other administrative measures as may be specified

therein for the purposes of implementing Regulation

(EU) 2016/1011 and Regulation (EU) No 2015/2365

and to provide for appeals therefrom to the Financial

Services Tribunal.

Regulations which are required to be issued by the Minister

upon the advice of the Authority or after consultation therewith

under any Act in respect of which the Authority has been appointed

as the competent authority, may be made in the English language

only.

(1) There shall be a tribunal to be called ''The Financial

Services Tribunal'', in this Act also referred to as ''the Tribunal'',

which shall exercise and perform the functions and powers

assigned to it by law.

(2) The Tribunal shall consist of a chairman and two other

members appointed by the Minister.

(2A) The Minister shall appoint a number of substitute members,

which number shall lie within the discretion of the Minister but shall

not be less than two (2), according to necessity, from time to time, and

which substitute members shall satisfy the criteria according to sub-

articles(3) or (4), and sub-articles (5), (6) and (7) shall apply. In case of

a vacancy in the composition of the Tribunal or for the reasons

contemplated in article 10A, or due to indisposition of any member of

the Tribunal, including the Chairman, the Minister shall appoint a

substitute member according to the rota, and who satisfies the

requisites of the vacancy according to sub-articles (3) or (4), as the

case may be.

(3) The chairman shall be an advocate who for a period of, or

periods amounting in the aggregate to, not less than twelve years

has served as an advocate in Malta or served as a magistrate in

Malta, or partly so practised and partly so served.

(4) Subject to any other provision in any other law related to

the composition of the Tribunal or to the qualifications of its

members, the two other members mentioned of the Tribunal shall

be persons who in the opinion of the Minister possess the necessary

expertise and experience in the business or regulation of financial

services, or finance.

(5) The chairman and the other members of the Tribunal shall

hold office for a period of three years, shall be eligible for re-

appointment and may not be removed during their term of office

except on grounds of proved inability to perform the functions of

their office whether arising from infirmity of body or mind or any

other cause, or proved misbehaviour.

(6) The chairman and other members of the Tribunal shall

receive such remuneration as may be determined in their instrument

of appointment.

(7)

The remuneration referred to in sub-article (6) shall not be

altered during the tenure of office of a member by whom it is

receivable, except for such changes as may from time to time be

required to preserve at all times during the tenure of the

appointment the proportion of the remuneration to the salary of a

judge of the superior courts, as existed on the date of the

appointment.

(8) An appeal within the terms of sub-article (9) to the Tribunal

shall be made in writing explaining clearly the grounds for the

appeal by not later than thirty days from the date the decision or act

in question has been notified to the aggrieved person, and the

competent authority shall have thirty (30) days from the date when it

was served by the Tribunal with the appeal in question to file its reply.

(8A) The Tribunal shall proceed to deal with any matter before it

with utmost urgency and shall give its decision without delay.

(9) The question for the determination of the Tribunal shall be

whether, for the reasons adduced by the appellant -

(a) the competent authority has, in its decision wrongly

applied any of the provisions of this Act, or any

regulations issued thereunder;

(b) the decision of the competent authority constitutes an

abuse of discretion or is manifestly unfair

Provided that the discretion of the competent authority may

not, so long as it has been exercised properly, be queried by the

Tribunal

Provided further that no appeal shall lie from any decision

imposing a penalty not exceeding two hundred and thirty-two euro

and ninety-four cents (€232.94) and from any reprimand, warning

or other similar disciplinary sanction or measure.

(9A) The Tribunal shall also determine whether, for the reasons

adduced by the appellant

(a) the Resolution Committee has, in its decision, wrongly

applied any of the provisions of this Act or any

regulations issued thereunder; or

(b) the decision of the Resolution Committee constitutes

an abuse of discretion or is manifestly unfair

Provided that, with respect to an appeal from a decision of

the Resolution Committee to take a crisis management measure, the

Tribunal shall use the complex economic assessments of the facts

carried out by the Resolution Committee as a basis for its own

assessment of that decision

Provided further, that the complex nature of such economic

assessments shall not prevent the Tribunal from examining whether

the evidence relied on by the Resolution Committee is factually

accurate, reliable and consistent, and whether that evidence

contains all relevant information which should be taken into

account in order to assess a complex situation, and whether it is

capable of substantiating the conclusions drawn therefrom.

(10) The Tribunal shall hold its sittings in public unless having

regard to the nature of the matter before it, the Tribunal deems it fit

and proper to conduct the proceedings or any part thereof behind

closed doors; in any such case the decision of the Tribunal shall

always be delivered in public.

(10A) The Chairman or other members of the Tribunal may be

challenged or may abstain from sitting in a case in those circumstances

that would disqualify a judge in a civil lawsuit, and in such case the

Chairman or member shall be substituted by another member

appointed by the Minister in terms of sub-article (2A)

Provided that for the purposes of the Insurance Business Act,

such member is to be replaced by another member who shall have the

knowledge and experience required in terms of article 57(1) of the

Insurance Business Act.

(11) The Tribunal shall have the power to summon witnesses

and to administer the oath thereto, and to appoint any expert or

experts as it may deem necessary for the determination of the case

before it.

(12) (a) All evidence must be relevant to the matter in issue

between the parties.

(b) In all cases the Tribunal shall require the best evidence

that the party may be able to produce.

(c) The Tribunal shall disallow any evidence which it

considers to be irrelevant or superfluous, or which it

does not consider to be the best which the party can

produce.

(13) Upon the hearing of an appeal, made to it under any law, the

Tribunal shall have the power -

(a) to confirm, annul or vary the decision of the competent

authority or the Resolution Committee under the

relevant law and to give directions within its powers

under this Act or any other law to the said competent

authority or the Resolution Committee to implement the

decision of the Tribunal;

(b) to require the production of any document or other

information;

(c) to order the payment of costs and expenses by any

party to the appeal.

(14) An appeal on a question of law only from a decision of the

Tribunal shall lie to the Court of Appeal. An appeal shall be made

by not later than twenty days from the date of the decision of the

Tribunal. In the determination of such an appeal, the Court of

Appeal shall have all the powers of the Tribunal to make orders.

(15) The Minister may make regulations governing the

procedure and fees for bringing and conducting appeals before the

Tribunal, provided that in the absence of such regulations and

subject to the rules of natural justice, the Tribunal shall regulate its

own procedure.

(16) The Minister responsible for Justice may by regulations

made under this sub-article establish the fees payable in the registry

of the court in relation to the filing of judicial acts in connection

with appeals to the Court of Appeal under this article

Provided that until such fees are so established by the

M i n i s t e r, t h e f e e s c o n t a i n e d i n S c h e d u l e A t o t h e C o d e o f

Organization and Civil Procedure shall apply.

(17) An appeal made under this article shall not suspend the

operation of any decision or directive from which the appeal is

made

Provided that a decision to cancel a licence shall not

become operative until the expiration of the period within which an

appeal lies under this article and, if an appeal is made within such

period, the decision shall become operative on the date of the

decision of the Tribunal dismissing the appeal or the date on which

the appeal is abandoned;

Provided further that, with respect to a decision of the

Resolution Committee to take a crisis management measure

(a) the lodging of an appeal from such decision shall not

entail any automatic suspension of the effects of the

challenged decision; and

(b) the decision of the Resolution Committee shall be

immediately enforceable and it shall give rise to a

rebuttable presumption that a suspension of its

enforcement would be against the public interest.

(18) In this article, "competent authority" refers to the Authority

under this Act and under any other law for the purposes of which it is

appointed as the competent authority.

The revenue of the Authority shall consist of

(a) income derived in respect of licences, authorisations

and registrations and other fees or charges payable

under this Act or any other law in respect of which the

Authority

exercises

registration,

supervisory,

regulatory or similar functions;

(b) rents, interest and profits accruing from property,

deposits and other assets of the Authority;

(c) any sums required by the Authority for carrying out any

of its functions under this Act shall be paid to the

Authority out of the Consolidated Fund and shall be a

charge on such Fund by virtue of this Act and without

further appropriation;

(d) any other money receivable or received by the

Authority.

(1) The Executive Committee shall cause to be prepared in

respect of each financial year and shall not later than six weeks

after the end of the previous financial year prepare for adoption by

the Board of Governors, within six weeks of presentation with or

without amendments, estimates of the income and expenditure of

the Authority for that financial year.

(2) In the preparation of such estimates the Authority shall take

account of any funds and other moneys that may be due to be paid to it

out of the Consolidated Fund during the relevant financial year by

virtue of this Act, and shall endeavour to ensure that the total revenues

of the Authority are at least sufficient to meet all sums properly

chargeable to its income and expenditure account, including, but,

without prejudice to the generality of that expression, depreciation.

(3) The estimates shall be made out in such form and shall

contain such information and such comparisons with previous years

as the Board of Governors may direct.

(4) Notwithstanding the provisions of sub-article (1), if in respect

of any financial year, it is found that the amount approved by the

Board of Governors is not sufficient or a need has arisen for

expenditure for a purpose not provided for in the estimates, the

Executive Committee may adopt supplementary estimates for approval

by the Board of Governors and for the consideration by the House

after examination by the committee as aforesaid in sub-article (5).

(5) Such estimates shall be examined by a committee of the House

appointed for this purpose, which shall report thereon for

consideration to the House.

(6) The sum or sums referred to in the previous sub-articles shall

be determined by resolution of the House after considering the

estimates prepared by the Authority and the report thereon by the

committee to the House.

(1) The Authority may

(a) hold accounts with any bank;

(b) invest any of its liquid assets in short and medium term

first class securities as approved by the Board of

Governors;

(c) acquire, purchase, lease or dispose of any movable or

immovable property required for the conduct of its

business or for any purposes ancillary or incidental to

the performance of its functions under this Act.

(2) For the purpose of carrying out of its functions under this

Act, the Authority may, with the approval in writing of the

Minister, borrow or raise money in such manner, from such person,

body or authority, and under such conditions as the Minister, may

in writing approve.

The Minister may make advances to the Authority of such

sums as he may consider to be required by the Authority for

carrying out any of its functions under this Act, and may make such

advances on such terms and conditions as he may deem

appropriate. Any such advances may be made by the Minister out

of the Consolidated Fund, and without further appropriation other

than this Act, by warrant under his hand authorising the Accountant

General to make such advances.

(1) The Authority shall establish a Reserve Fund to which

the surplus for the year establi sh ed in th e A ud ited Inco me

Statement shall be appropriated

Provided that the said fund shall not at any time exceed the

equivalent of the Operational Expenses registered in the preceding

financial year as disclosed in the Audited Financial Statements.

(2) The surplus funds of the Authority for each financial year

shall be determined after the Authority meets all current

expenditure for that year and after making such provisions,

including provisions for contingencies, as it deems fit, and the

appropriation referred to in sub-article (1).

(3) After the allocations referred to in sub-articles (1) and (2)

have been made, the remainder of the surplus funds shall be paid to

the Government.

(1) The Authority shall cause to be kept proper books of

accounts and other records in respect of its operations and shall

cause to be prepared a statement of accounts in respect of each

financial year.

(2) The accounts of the Authority shall be audited by auditors

appointed by the Board of Governors from among persons who are

qualified to be appointed as auditors of a company.

The Authority shall, as soon as may bebut not later than six

months after the close of each financial year, transmit to the House,

through the Minister, a copy of its annual accounts certified by the

auditors together with a report on its activities during the previous

year.

(1)

The Authority, including the members of the Board

of Governors when acting in any function assigned to the Board under

any provision of this Act, any body or other organ, including any

committee or sub-committee, established under this Act, and any

member or officer of that body or organ, and the officers and employees

of the Authority, shall not be liable in damages for anything done or

omitted to be done in the discharge or purported discharge of any such

function or otherwise in the exercise of their official duties, unless the

act or omission is shown to have been done or omitted to be done, as

the case may be, through wilful misconduct.

(2) For the purposes of this provision, the phrase "this Act" shall

include any other Act administered by the Authority and any

regulations or Rules made thereunder.

The Authority shall be exempt from any liability for the

payment of income tax, duty on transfers and documents, and

customs and excise duty, under any law for the time being in force.

(1) Any decision taken by the Co-ordination Committee,

the Supervisory Council and the Board of Management and

Resources, prior to the date of entry into force of this article, shall

continue to apply

Provided that, for purposes of this article, the term

"decision" shall, in the case of the Supervisory Council, include

li c e n c e s i s s ue d, a pp r o v a l s an d a ut h o ri s a t io n s g ra n te d, a nd

regulatory action taken.

(2) Any reference in any law to the Director General or Chief

Operations Officer of the Authority shall be read and construed as a

reference to the Chief Executive Officer of the Authority as so

defined in article 2.

(3) Any reference in any law to the Co-ordination Committee,

the Su perviso ry Cou ncil , or the Board of Management and

Resources shall be read and construed as a reference to the

Executive Committee and shall include a reference to any sub-

committees, directorates, functions or units established under this

Act, as the case may require.