TRADING LICENCES ACT

TRADING LICENCES

CHAPTER 441

TRADING LICENCES ACT

To make provision for the regulation of commercial activities; and to

make provision for matters ancillary to or connected with such activities.

1st January, 2002;

2nd May, 2002

ACT XXVII of 2001, as amended by Act XXI of 2005; Legal Notice 426

of 2007; and Acts XXII and XXIII of 2009, and XIII of 2011.

P ART I - P RELIMINARY

The short title of this Act is the Trading Licences Act.

Extent of Amendments

1. - 6. Amendments came into force and inserted in Cap. 10.

7. The words "PART X", the heading "OF SHOPKEEPERS

AND OTHER TRADERS" and articles 181 to 193, both inclusive,

appearing thereunder shall be deleted.

Amendments relating to articles 181, 182, 184, 186, 187, 188,

189, 190, 191 and 192 came into force and inserted in Cap. 10.

8. - 10. Amendments came into force and inserted in Cap. 10.

11. The words "PART XIV", the heading "OF THEATRES

AND PUBLIC ENTERTAINMENTS" and articles 201, 203 and

204 shall be deleted.

Amendment relating to article 201 came into force and inserted

in Cap. 10.

All other amendments in force and inserted accordingly in the respective

Chapters and articles.

In this Act, unless the context otherwise requires

"commercial activity" means the exercise of any trading or

economic activity including the sale of goods, and the provision of

any services as may be prescribed, irrespective of whether such

commercial activity is exercised from commercial premises or

otherwise but shall not include any commercial activity regulated

under any other law;

"commercial exhibition" means an event in one location in which

one participant displays or promotes his goods or services with a

view to sell such goods or services from such location or from

elsewhere

Provided that such event shall not comprise the display or

promotion of goods or services for wholesale or retail from a

premises licensed for such purposes;

"commercial fair" means an event in one location in which more

than one participant display or promote their goods or services

from different sites of such location with a view to sell such goods

or services from such location or from elsewhere;

"commercial premises" includes any shop, showroom, stall,

store, or any other premises from where any commercial activity is

carried on; and includes any enclosed area within which

commercial fairs are held and includes also any other premises as

may be prescribed from which any service may be provided;

"exhibition" means an event in one location in which one or

more participants display or promote their goods or services

without the intention to sell such goods or services from such

location or from elsewhere;

"Local Council" shall have the same meaning assigned to it by

the Local Government Act;

"locality" in relation to a Local Council, shall have the same

meaning assigned to it by the Local Government Act and includes

any arterial or distributor road or any other area within the

boundaries of such locality, which, under the provisions of the said

Act are excluded from the responsibility of a Local Council;

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"Minister" means the Minister responsible for commerce;

"open air market" means an open air market established under

article 23;

"prescribed" means prescribed by regulations made by the

Minister for the purposes of this Act;

"regulatory authority" means the person or authority designated

by the Minister as regulatory authority in terms of article 3 of this

Act;

"sale" includes any exchange or transfer in solidum;

"street" means any street and includes any road, alley, square,

fortification or other place of public passage;

"the Treaty" means the Treaty establishing the European

Community.

P ART II - A DMINISTRATION

(1) The administration of this Act shall be vested in the

Minister or such other person or authority designated by the

Minister for any of the purposes of this Act.

(2) Where in this Act reference is made to the regulatory

authority, such reference shall be construed as a reference to such

person or authority.

(3) It shall be the duty of the regulatory authority to issue such

licences and to keep such registers, records or databases as may,

from time to time, be required for the purposes of this Act.

(4) For the better carrying out of its functions under this Act

the regulatory authority may make arrangements or enter into any

agreement with any other authority, entity or Local Council.

Unless otr.erwise provided by or under this Act the

provisions of this Act shall not apply in relation to any commercial

premises licensed, or commercial activity regulated, under any

other law; and in any such case no further licence or regulation

shall be required under this Act.

(1) There shall be a Licensing Appeals Board, consisting

of three members, of whom one, who shall be the chairperson, shall

be a person who has practiced as an advocate for not less than

seven years.

(2) The members of the Board shall be appointed by the

Minister for a period of five years, and may only be removed from

office by the Prime Minister 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.

(3) A member of the Board may be challenged or abstain for

any of the reasons for which a judge may be challenged or abstain

in accordance with article 734 of the Code of Organization and

Civil Procedure. In any such case the Minister shall appoint a

person, having the qualifications of the member challenged or

abstaining, to sit as a member of the Board in substitution of the

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said member.

(4) A member of the House of Representatives or of a Local

Council, a Judge or a Magistrate shall be disqualified from being

appointed or continuing to be a member of the Board for so long as

he holds that office.

(5) The Minister shall also designate a person to serve as

secretary to the Board

Provided that the Minister may appoint a substitute

secretary in the following cases

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

way not available to perform his duties; and

(b) in cases where the designate secretary abstains himself

for the same reasons that a member of the board may

abstain himself as mentioned above.

(1) An appeal shall lie to the Licensing Appeals Board on

any decision taken in accordance with the provisions of this Act

and any regulations made thereunder. The right of appeal shall be

competent to the applicant and to any person showing such interest

as may be prescribed who has duly filed an objection or made

representations against the grant of the licence.

(2) An appeal to the Board may be filed on any of the

following grounds

(a)

that a material error as to the facts has been made;

(b)

that there was a material procedural error;

(c)

that an error of law has been made;

(d)

that there was some material illegality, including

unreasonableness or lack of proportionality.

(3) The Board shall, after hearing the appellant, the regulatory

authority and the applicant, if he is not the appellant, decide the

appeal giving reasons for its decisions in open session.

(4)

In determining an appeal under this article the Board may

(a) dismiss the appeal;

(b) annul the decision, and refer the matter to the relevant

regulatory authority or the local council as the case

may be.

(1) The Board shall be competent to hear and decide any

appeal made to it in accordance with the provisions of this Act and

any regulations made thereunder; and the decisions of the Board

shall be final and conclusive.

(2) For the exercise of its functions, the Board may summon

any person to appear before it and give evidence and produce

documents; and the chairperson shall have the power to administer

the oath. The Board may also appoint experts to advise the Board

on any technical issue that may be relevant to its decision.

(3) For the purposes aforesaid the Board shall have the same

powers as are competent to the First Hall, Civil Court according to

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law.

(4) The procedure to be followed before the Board, the time

within which and the manner in which an appeal to the Board is to

be made shall be such as may be prescribed; and subject thereto,

and to any other applicable provision of this Act, the Board may

establish its own procedure.

Any party to an appeal to the Board who feels aggrieved by

a decision of the Board, or the regulatory authority if it feels

dissatisfied with any such decision, may on a question of law

appeal to the Court of Appeal as constituted in accordance with

article 41(9) of the Code of Organization and Civil Procedure by

means of an application filed in the registry of that court, within

thirty days from the date of the Board’s decision.

The effect of a decision to which an appeal relates shall

not, except where the Board or the Court of Appeal, as the case

may be, so orders, be suspended in consequence of the bringing of

the appeal.

(1) No commercial activity shall be carried out in Malta

without a licence from the regulatory authority

Provided that any commercial activity, as may be

prescribed, may

(a) be deemed to be licensed following a notification

made to the regulatory authority prior to

commencement of the commercial activity by the

person who undertakes to carry out the intended

activity;

(b) be deemed to be licensed following a notification

made to the regulatory authority, within a prescribed

time, after commencement of the commercial activity

Provided further that all persons carrying out any

commercial activity shall still be required to comply with the

relevant provisions of this Act and of any regulations subsidiary to

it, irrespective of the type whether the commercial activity is

licensed as a result of an application to the regulatory authority or

is deemed to be licensed following a notification to the regulatory

authority.

(2)

Certain activities as may be prescribed may

(a) be designated as not requiring a licence but requiring

other relevant permits from the local authority and, or

the Commissioner of Police or be subject to conditions

issued by the local authorities and, or the

Commissioner of Police;

(b) be designated as requiring other relevant permits, in

addition to a licence from the regulatory authority,

including

(i) a permit from the local authority; and

(ii) a permit from the Commissioner of Police

Provided that a person who holds on any special or special

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day or days

(a) any procession or other activity in a public place held

in the context of a feast, any band march, any disco,

ball, dance or any other similar activity, irrespective of

the name by which it is called; or

(b) a sporting activity which is held across more than one

locality or on a national basis; or

(c) any activity organised by a political party

shall only require a permit from the Commissioner of Police issued

under this Act.

(3) The issuing of a licence by a regulatory authority or a

permit by the local authority or Commissioner of Police may be

subject to

(a) the submission and evaluation of documents and other

prescribed information as may be deemed necessary in

order to ensure fulfilment of licence requirements;

(b) authorizations, permits, approvals and clearances from

other entities as may be prescribed and applicable by

other relevant legislation current at the time;

(c) compliance with terms and conditions as may be

prescribed, including the possession of relevant

qualifications in line with the Mutual Recognition of

Qualifications Act and of any regulations made

thereunder

Provided that the regulatory authority may require the

applicant to prove his competence to carry on the relevant

commercial activity by means of other qualifications for reasons of

overriding public interests, in terms of Directive 2006/123 of the

European Parliament and of the Council of 12 December, 2006 on

services in the internal market

Provided further that where a person is legally established

to carry on in another Member State a commercial activity falling

under the implementing provisions of Directive 2006/123 of the

European Parliament and of the Council of 12 December, 2006 on

services in the internal market and is seeking a licence in Malta, the

regulatory authority, in compliance with same Directive, shall not

duplicate requirements or controls which are equivalent or

essentially comparable as regards their purpose to which such

person may already be subject to in another Member State.

(4) Notwithstanding any licence, permit or authorisation

issued, the Commissioner of Police may

(a) where any affray or tumult happens or is expected to

happen in any place, order every commercial premises

in or near the place where the affray or tumult happens

or is expected to happen, to be kept closed during such

time as, in the opinion of the Commissioner of Police,

is reasonably necessary;

(b) for reasons of public order, public safety or public

morality, stop any activity in respect of which any

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permit or licence or authorization was issued or should

have been issued under this Act.

Where a person is already licensed or otherwise legally

established to carry on a commercial activity in another Member

State, and that person wishes to carry out such commercial activity

in Malta on a non-permanent and occasional basis, the regulatory

authority shall not prevent that person from doing so by imposing

any requirements which are discriminatory, unnecessary or

disproportionate

Provided that the regulatory authority may impose such

requirements with regard to the provision of a particular service

activity, where these are justified for reasons relating to public

policy, public security, public health or the protection of the

environment

Provided also that in establishing whether a service

provider is exercising his freedom to provide services within the

meaning of article 6 of the Services (Internal Market) Act, and

Article 49 of the Treaty, or is an establishment case, or whether a

service provider is abusively taking advantage of the freedom to

provide services, the competent authority shall assess and decide

each case on its individual merits and in conformity with

Community law and rulings of the European Court of Justice.

P ART III - A CTIVITIES REQUIRING PERMIT BY L OCAL C OUNCILS

Without prejudice to the provisions of any other

enactment, the Minister, after agreement with the Local Council

may, by Order in the Gazette establish an open-air market.

When an open air market has been established in a locality,

no person shall be allowed to carry on any commercial activity

from a fixed place in such a market unless he complies with such

conditions as may be prescribed.

No person shall place any vending machine or any machine

known as kiddie ride machine in any street without the necessary

authorisation as may be prescribed.

Any decision of a Local Council in relation to a permit or

authorisation required under this Part or in terms of any regulations

made thereunder, shall be subject to appeal in accordance with the

provisions of Part II of this Act, and for such purposes a Local

Council shall be deemed to be the regulatory authority.

(1) The Minister responsible for local government after

consultation with the Minister may make regulations on any matter

relating to the issue of any permit or authorisation by Local

Councils under this Part, and without prejudice to the generality of

the foregoing, such regulations may provide for

(a) the criteria, conditions and procedures for the issue,

renewal, transfer, suspension or cancellation of such

permits or authorizations;

(b) the conditions that may be attached to such permits or

authorizations;

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(c) the fees that shall be paid for such permits or

authorizations;

(d) in relation to open-air markets

(i) the conditions under which open-air markets

shall be managed by Local Councils;

(ii) the areas to be marked and allocated to hawkers

and the conditions for such allocations; and

(iii) the obligations of hawkers operating from open-

air markets.

(2) Such regulation may provide that any person contravening

the provisions of any such regulations or any condition attaching to

any such permit or authorisation, shall be guilty of an offence under

the regulations and shall, on conviction, be liable to a fine

(ammenda) as may be established in such regulations, which fine

(ammenda) shall not exceed four hundred and sixty-five euro and

eighty-seven cents (465.87).

P ART IV - G ENERAL P ROVISIONS

The Minister may make regulations for the purpose of

regulating the grant, renewal, suspension, transfer or cancellation

of licences or of any one or more categories or classes thereof and,

in particular, but without prejudice to the generality of this

provision, he may make regulations for all or any of the following

(a) for prescribing the conditions under which licences or

any one or more categories or classes thereof may be

granted, renewed, suspended, transferred or cancelled;

(b) for providing the manner in which applications for the

grant, renewal, suspension, transfer or cancellation of

licences or of any one or more categories or classes

thereof are to be made; for the contents of such

application; for the manner in which such licences are

to be granted, renewed, suspended, transferred or

cancelled; the form in which such licences are to be

issued, the contents thereof and the manner in which

renewals or transfers thereof are to be indicated;

(c) for providing the manner in which applications for

such licences as may be prescribed are to be publicised

and for providing the manner in which any person who

may be prejudiced by such a licence may make an

objection or representation thereon to the regulatory

authority;

(d) for establishing the duration of the validity of licences

or of any one or more categories or classes thereof;

(e) for establishing the fees leviable in respect of licences

or of any one or more categories or classes thereof,

either by direct determination or by reference to the

manner in which such fees are to be reckoned; and to

make provision for fees leviable in respect of broken

periods

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Provided that regulations made under this

paragraph may establish the minimum and the

maximum of any fee leviable in respect of licences or

of any one or more categories or classes thereof;

(f) for establishing the penalties or administrative

sanctions to which any offender against the provisions

of this Act and regulations made thereunder shall be

liable;

(g) for establishing the qualifications that a person

carrying out a commercial activity or serving

customers from any commercial premises may be

required to possess;

(h) for the requirement of registration of, and for

establishing the qualifications that shall be possessed

by, any person carrying on a commercial activity other

than from commercial premises, provided that this

paragraph shall not apply with respect to a person who

carries out a commercial activity which is regulated

under any other enactment and who is required to hold

a licence or warrant thereunder;

(i) for any matter in relation to any activity carried on in

any commercial premises licensed under this Act;

(j) for establishing the days and hours during which any

activity may or shall be carried on from any

commercial premises, including open-air markets

Provided that such regulations may also make

provision in relation to any commercial premises

which is licensed by another regulatory authority

under the provisions of any other enactment;

(k) for prescribing any matter considered necessary or

expedient for the better carrying out of any of the

provisions of this Act.

(1) Where any person contravenes any of the provisions of

this Act or of any regulations made thereunder, he shall be guilty of

an offence under this Act and shall on conviction be liable, unless

any other penalty is prescribed under any other provision of this

(a) on a first conviction, to a fine (ammenda) of not less

than one hundred and sixteen euro and forty-seven

cents (116.47) but not exceeding one thousand and one

hundred and sixty-four euro and sixty-nine cents

(1,164.69);

(b) on a second or subsequent conviction to a fine

(ammenda) of not less than two hundred and thirty-two

euro and ninety-four cents (232.94) and not exceeding

two thousand and three hundred and twenty-nine euro

and thirty-seven cents (2,329.37); and

(c) in the case of a continuing offence to a fine (ammenda)

of twenty-three euro and twenty-nine cents (23.29) for

every day during which the offence continues.

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(2) The Minister may make regulations establishing offences and

the relative punishments in relation to contraventions involving the

sale of alcohol, which punishments shall not exceed a fine (multa) of

twenty thousand euro (20,000) and, or, the revocation of the licence.

(1) Notwithstanding any other law providing for the trial

and punishment of offences, where the regulatory authority

believes that a person has committed an offence against this Act or

any regulations made thereunder, the regulatory authority may give

notice in writing to such person describing the offence of which the

person is accused and such penalty and, or administrative sanctions

as may be prescribed in respect of that offence.

(2) The Minister shall prescribe the penalties and

administrative sanctions that may be demanded by the regulatory

authority in relation to any specified offence.

(3) Where a notice under this article has been given, the person

named in the notice may, within twenty-one days of the service of

the notice, accept responsibility for the offence specified in the

notice and within the same period pay the penalty and, or

administrative sanctions indicated in the notice, and conform with

the relative provision of this Act or of the regulations made

thereunder and no further proceedings may be taken under this Act

in respect of such offence.

In the case of any person carrying on any commercial

activity from commercial premises without a licence or in the case

of a second or subsequent offence for any contravention committed

by any person exercising any commercial activity in virtue of a

licence issued by the regulatory authority, in connection with the

exercise of such commercial activity, it shall be lawful for the court

to cancel the licence, or to suspend the same for any time, in its

discretion.

Where any court or other tribunal has awarded a fine

licence (ammenda) in connection with any offence in relation to

any licence under this Act, and such fine has not been paid, the

regulatory authority shall not renew the afore-mentioned licence on

the expiry thereof until such time as the payment of the fine is

effected.

(1) The enactments in the First Column of the Schedule to

this Act shall have effect subject to the amendments appearing in

relation thereto in the Second Column of the said Schedule.

(2) Any regulations made under the provisions of any of the

enactments being amended or repealed as aforesaid, and shown in

the Schedule to this Act, shall, until other provision is made under

or by virtue of this Act, or of the aforesaid enactments as amended,

continue in force and have effect as if made under this Act or the

relevant enactment as amended, as the case may require.

(3) Any licence, permit, permission or other authority granted

under any enactment or any provision thereof, being amended by

this Act as aforesaid, and still in force immediately before such

amendment, shall continue in force thereafter as if it were a licence,

permit, permission or authority granted under a corresponding

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provision of this Act, or under such enactments as amended, as the

case may require; and any such licence, permit, permission or

authority as aforesaid shall be treated and dealt with accordingly.

(4) Any condition attached to any such licence, permit,

permission or other authority shall remain unimpaired until other

provision is made under or by virtue of this Act, or of the aforesaid

enactments as amended and such provision may be made applicable

from time to time in relation to such class or category of such

licences, permits, permission or other authority as may be provided

therein.

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