MALTA ENTERPRISE ACT

CHAPTER 463

MALTA ENTERPRISE ACT

To make provision for the establishment of a corporation in Malta, to

determine the functions and powers of the Corporation in order to promote

enterprise and related business undertakings in Malta, to encourage the

establishment of new business undertakings and the expansion of existing

business undertakings in Malta, to provide for the development and

administration of incentives, schemes and other forms of support for such

ventures and to provide for matters ancillary or in relation thereto and to

provide for powers to rationalise and update the relevant legislation in the

sector.

11th August, 2003

ACT VIII of 2003 , as amended by Act XXIII of 2007 ; Legal Notice

427 of 2007 ; and Acts X of 2013 and XXXV of 2023.

PART I

Preliminary

The short title of this Act is the Malta Enterprise Act.

In this Act, unless the context otherwise requires -

"beneficiary" means any person who is entitled to benefit under

an incentive scheme or arrangement in terms of this Act;

"the Board" means the Board of Directors of the Corporation

established under article 10;

"the Chairman" means the Chairman of the Board of Directors

appointed under article 11;

"the chief executive officer" means the chief executive officer of

the Corporation appointed under article 13;

"committee" means a committee of the Corporation established

under articles 16 and 17;

"the Corporation" means Malta Enterprise, a corporation

established under article 7 and where any other authority or person

is designated by regulations prescribed by the Minister to be the

competent authority to exercise any of the functions of the

Corporation under this Act, includes such other authority or person

to the exclusion of the Corporation;

"directors" means the members appointed to the Board of

Directors of the Corporation under article 10;

"effective date" means the date, established by the Minister, for

the coming into force of this Act;

"enterprise" means the carrying on of any economic activity in

Malta;

"existing projects" means any project already approved by the

Corporation and entitled to or benefiting from any grants or

incentives under the Business Promotion Act;

"financial year" means any period of twelve months ending on

the 31st day of December of each year or such other date as may be

determined by the Board with the concurrence of the Minister

Provided that the first financial year of the Corporation

shall commence on the coming into force of this article and shall

end on the 31st day of December of the next following year;

"guidelines" means the set of rules issued by the Corporation

from time to time for the further implementation of the provisions

of this Act, and any regulations issued hereunder, including the

definition, application, administration, grant and revocation of

schemes, incentives and other arrangements for the promotion of

enterprise in Malta;

"Incentive Entitlement Certificate" means a certificate issued in

terms of Part VI of this Act;

"Malta" has the same meaning as is assigned to it by article 124

of the Constitution of Malta;

" th e Mi n ist er " m ea ns t he M in i s t e r r e s p o n s ib l e f o r M a l t a

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

person authorised in that behalf for any purpose of this Act;

"relevant legislation" means -

(i)

the Business Promotion Act, and regulations

made thereunder, and in particular the Business

Promotion Regulations;

(ii) the Malta Development Corporation Act, and

any regulations made thereunder;

(iii) the Small Enterprises (Loan Guarantee) Act, and

any regulations made thereunder;

(iv)

the Aids to Industry Ordinance, and any

regulations made thereunder; and

(v)

the Encouragement of New Industries Act, and

any regulations made thereunder;

"secretary" means the secretary of the Board;

"State Aid Monitoring Board" means the State Aid Monitoring

Board constituted under article 57 of the Business Promotion Act;

"tax" shall have the same meaning as assigned to it in the Income

Tax Acts;

"undertaking" means any individual or body of persons, whether

having a distinct legal personality or not, who or which carries on

any form of enterprise including the exercise of any trade or

business, profession or vocation and includes any association or

other body of persons which promotes or supports the goals and

objectives of such undertakings.

The provisions of this Act and of any subsidiary legislation

made thereunder shall also apply, in accordance with the provisions of

the 1982 United Nations Convention on the Law of the Sea as ratified

by the Law of the Sea (Ratification) Act, to the continental shelf as

defined in the Continental Shelf Act and to any exclusive economic

zone area or environment protection area as defined in the Exclusive

Economic Zone Act. Any artificial island, installation, structure,

equipment or device therein shall, solely for the purposes of this Act

and any legislation made thereunder, be treated as if they were situated

in Malta itself.

PART II

Guiding Principles underlying the Act

The Government shall co-operate with the private sector to

promote private enterprise in Malta.

(1) The Government shall from time to time determine

Malta’s principal economic policies and objectives and shall

appropriate such funds and provide such incentives as it considers

necessary to achieve such aims.

(2) The Government shall endeavour to achieve such economic

objectives and policies through

(a) increased investment;

(b) increased employment;

(c) increased entrepreneurship;

(d) improved international competitiveness;

(e) diversification of the local industry base;

(f)

the development of enterprise networking and inter

sector linkages;

(g) the development of human resources; and

(h) the promotion of industrial research, technology

development and innovation, and such other strategies

as may from time to time be conducive to the

achievement of such objectives and policies.

(3) In order to better achieve the goals set out above, the

Government shall establish all such support measures as may be

necessary and, without prejudice to the generality of the foregoing,

shall in particular establish support measures in one or more of the

following areas

(a) access to all forms of finance;

(b) employment generation;

(c) environment

protection

and

renewable

energy

initiatives;

(d) regional development;

(e) research and development and innovation;

(f)

information technology, e-business and e-commerce;

(g) the development of small

and

medium

sized

undertakings ("SMEs");

(h) the promotion of

clustering,

networking

and

internationalisation;

(i)

the optimal use of property to cater for the physical

and infrastructural requirements for the development

of enterprise;

(j)

the regeneration of the island of Gozo and addressing

handicaps associated with its double insularity; and

(k) generally, the introduction of such other enterprise

development measures, methodologies, schemes,

policies and goals which are conducive to the above

and related and similar objectives.

(4) Where the Minister, on the recommendation of the

Corporation, is satisfied that a project to be undertaken by an

undertaking may make a substantial contribution to the

development of the economy as is consistent with the aims and

objectives of the Government and this Act, the Minister may, after

consultation with the Corporation as may be necessary, approve

that support, in any form as may be approved, be given by the

Corporation to such an enterprise subject to such conditions as the

M i n is t e r o r t h e C o r p or a t i on m a y i m p o s e ; p r o v i de d t h a t n o

assistance shall be granted to the extent that it is inconsistent with

applicable law on state aid.

(1) In order to achieve the purposes of this Act, the

Minister may make regulations to give effect to the provisions of

this Act and, without prejudice to the generality of the foregoing,

such regulations may include provision with respect to

(a) the establishment of policies for implementation by

the Corporation as to the undertakings eligible to

receive the benefit of incentives and other

arrangements, the types of incentives, the range of

support and other related matters;

(b) the introduction of measures of a fiscal nature whereby

the tax payable by any undertaking may be absorbed

by tax credits or otherwise reduced;

(c) the introduction of such other support measures as are

considered appropriate and subject to such conditions

as the Minister may deem fit, which measures may

include, but shall not be limited to, the measures

provided for in article 4(3);

(d) the designation of any authority or person to exercise

any of the functions of the Corporation under this Act;

(e) the definition and interpretation of terms and concepts

to be used in regulations and guidelines;

(f)

the deletion or the transposition of any provisions in

the relevant legislation into regulations with such

modifications as the Minister may consider

appropriate or necessary

Provided that in so far as existing projects are

concerned, nothing in any regulations made pursuant

to this power shall affect any right, benefit or incentive

currently in force in favour of any undertaking or

beneficiary nor impose any more onerous conditions

or obligations than currently in force and in case of

conflict between the regulations and the relevant

legislation, the provisions of the relevant legislation

shall prevail; and.

(g) the activities taking place within the continental shelf as

defined in the Continental Shelf Act and within any

exclusive economic zone area or environment protection

area as defined in the Exclusive Economic Zone Act.

(2) Where the Minister proposes to make or modify regulations

in accordance with the provisions of this Act and those regulations

provide that an undertaking may be wholly or partly exempted from

being liable to any tax which, but for the provisions of such

regulations, would have been payable, the power of the Minister to

make such regulations shall only be exercised with the concurrence

of the Minister of Finance.

(3) Where the Minister proposes to make or modify regulations

which provide for the granting of any assistance, a copy of such

p r o p o s e d r e g u l a t i o n s s h a l l b e f o r w a r d e d t o t h e St a t e A i d

Monitoring Board which shall communicate its opinions on the

proposed assistance in accordance with applicable law.

(1) Notwithstanding any provisions of the Income Tax Act

or of any other applicable fiscal law, incentives, benefits and grants

in terms of schemes that may be developed by the Corporation to

give effect to this Act, shall be exempt from tax in the hands of the

relevant beneficiary, provided that such grants do not take the form

of income substitution.

(2) The Minister may make regulations to lay down the

conditions relating to accounting, record keeping and reporting to

the Corporation for the enjoyment of the exemption stated in the

preceding subarticle.

(3) Where any benefit provided by these regulations or by the

Act is due to a partnership or other undertaking and, in accordance

with the Income Tax Acts, the partners or members thereof and not

the partnership or undertaking itself are assessable to tax on any

income of such partnership or undertaking, any benefit provided in

terms of this Act to a partnership or undertaking shall be due to the

partners or members of any such partnership or undertaking.

PART III

Establishment and Functions of the Corporation

(1) There shall be a corporation, to be called Malta

Enterprise, to perform the functions assigned to it under this Act.

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

legal personality and be capable, subject to the provisions of this

MALTA ENTERPRISE

Act, of entering into contracts, of acquiring, holding and disposing

of any property for the purpose of its functions, of suing and being

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

transactions as are incidental or conducive to the exercise or

performance of its functions under this Act.

(1)

The Corporation shall have the following functions

(a) to originate, lead and further initiatives relating to the

economic and social development of Malta in line with

the objectives, policies and goals set out by

Government in terms of article 4;

(b) to lead Malta’s strategy as relates to all forms of

enterprise, ensuring the implementation of such

activity through a co-ordinated and coherent approach

developed and implemented with other Government

bodies, national constituted bodies and the private

sector;

(c) to develop, and to provide the required assistance and

support services to enterprise in Malta;

(d) to promote Malta as a location for enterprise, to assist

and co-ordinate its promotion as such a location;

(e) to promote, assist and develop the establishment,

competitiveness and internationalisation of enterprise

in Malta;

(f)

to develop the technological, human resource, and

skills bases, and to strengthen the capacity of

undertakings, to undertake strategic assessment and

formulation, to innovate, and to undertake research,

development and design activities;

(g) to provide and manage land, sites, premises, services,

and facilities for business enterprises;

(h) to administer schemes, grants and other financial

facilities requiring the disbursement of funds,

including funds originating from foreign sources;

(i)

to advise the Minister on any matter relating to the

operations and purposes of this Act; and

(j)

to carry out such other functions as may be assigned to

it by the Minister from time to time.

(2) In the exercise of the above functions, the Corporation shall

have power to

(a) make all forms of investment, including direct

ownership of undertakings in its own right or in

partnership with other persons, grant loans and

advances to undertakings, subscribe, underwrite or

deal in shares and debentures of companies, guarantee

loans and advances to other persons, make grants to

undertakings, and manage and control undertakings

provided that in any such transaction as aforesaid the

investment or liability of the Corporation shall be

made or assumed at fair risk;

(b) acquire, sell or otherwise dispose of or lease land,

plant, machinery and equipment, and other property,

and to otherwise make available property for use by

other persons;

(c) manage land, and to develop land, and to carry out

works on land, and to maintain works or assist in their

maintenance;

(d) provide advisory or other services or facilities in

relation to any of its functions, or to assist in their

provision; and

(e) generally do all such things as may be incidental or

conducive to the performance of its functions.

(3) For the better carrying out of the provisions of this Act, the

Corporation may, in furtherance of any of its functions and powers,

from time to time

(a) issue and publish guidelines to establish inter alia

(i)

the terms and conditions of any arrangements,

incentives

or

schemes

including

the

determination of rules for the eligibility of

undertakings to any benefits and incentives

under any such schemes and all matters related

and ancillary thereto;

(ii) the applicability of such schemes to particular

projects or undertakings; and

(iii) any additional requirements and conditions in

relation to activities of undertakings, the

conduct of their business, their responsibilities

to the Corporation, reporting requirements to the

Corporation, financial resources and related

requirements, and any other matters as the

Corporation may consider appropriate;

(b) pursuant to the delegation by the Minister by means of

a relevant regulation, transpose any provisions in the

relevant legislation into guidelines with such

modifications as the Minister or the Corporation, as

the case may be, may consider appropriate or

necessary

Provided that in so far as existing projects are

concerned, nothing in any guidelines issued pursuant

to this power shall affect any right, benefit or incentive

currently in force in favour of any undertaking or

beneficiary, nor impose any more onerous conditions

or obligations than currently in force, and in case of

conflict between the guidelines and the relevant

legislation, the provisions of the relevant legislation

shall prevail;

(c) pursuant to the delegation by the Minister by means of

a relevant regulation, reflect directives of the

European Union which may be relevant or necessary in

relation to the functions and areas of responsibility of

the Corporation and pursuant to article 4(2) of the

European Union Act, to designate the Minister as the

relevant Minister and the Corporation as the relevant

authority for the purposes as may be prescribed.

(4) Guidelines shall be binding on all undertakings in

possession of an Incentive Entitlement Certificate and on other

persons as may be specified therein in accordance with their terms.

(5) Guidelines shall be issued by the Board only after having

obtained the written opinion of the Minister

Provided that where the guidelines deal with measures of a

fiscal nature, the concurrence of the Minister of Finance shall also

be required.

(6) Except for amendments to the guidelines which are purely

administrative in nature, and are expressly declared to be so by the

Corporation, which come into force immediately upon the posting

thereof on the official website of the Corporation, any new

guidelines or amendments to guidelines shall come into force on

the lapse of fifteen days after they are posted on the official website

or on such later date as may be stated therein

Provided that an amendment to the guidelines may not

reduce, withdraw or cancel any benefit previously granted except in

accordance with the terms of this Act or a regulation in terms of

which it is issued.

(7) Where, after the coming into force of the provisions of

subarticles (3), (4), (5) and (6), the Corporation proposes to issue

guidelines which provide for the granting of any new or increased

assistance, a copy of such proposed guidelines shall be forwarded

to the State Aid Monitoring Board which shall communicate its

opinions on the proposed assistance in accordance with applicable

law.

The Corporation may, with the approval of the Minister,

exercise its functions under this Act through the agency of other

persons, and may act as agents or otherwise on behalf of other

persons.

PART IV

Functions and Powers of the Board

(1) The affairs of the Corporation shall be directed by and

shall be the responsibility of the Board.

(2)

(a) The Board shall consist of not less than six and not

more than ten voting members as the Minister may

from time to time, appoint.

(b) One of the voting members shall be designated by the

Minister to be Chairman of the Board and another

voting member may be designated as deputy Chairman.

(3)

(a) The members appointed by the Minister shall be

persons, except as indicated in paragraph (b), not being

public officers or staff of the Corporation, who appear

to the Minister to have experience of and show ability

i n m a t t e r s r e l a t i n g t o i n d u s t r y, t r a d e , f i n a n c e ,

education, science, the professions, or organisations of

employers or of workers.

(b) The Minister may appoint not more than two public

o ff i c e r s o n e o f w h o m t o r e p r e s e n t t h e M i n i s t r y

responsible for industry and the other representing the

Ministry responsible for finance.

(4) Two members appointed by the Minister from a list of five

persons that are submitted by constituted bodies which in the

opinion of the Minister better represent the interests of the

commercial sector, which constituted bodies will be declared in a

separate legal notice.

(5) There shall be paid to the voting members of the Board

such remuneration, if any, as the Minister may from time to time

determine.

(6) Each voting member shall hold office for such term and on

such terms and conditions as the Minister may deem proper;

members of the Board shall be eligible for re-appointment.

(7) A person shall not be qualified to be appointed, or to

remain, a member of the Board if he -

(a) is a judge or magistrate;

(b) is adjudged bankrupt or has entered into any

arrangement with his creditors;

(c) is interdicted or incapacitated;

(d) is convicted of an offence affecting public trust, theft,

or fraud or of knowingly receiving property obtained

by theft or fraud;

(e) is subject to a disqualification under article 320 of the

Companies Act.

(8) A voting member of the Board may at any time resign his

office by letter addressed to the Minister and the resignation shall

take effect from the date specified therein, being a date that does

not precede the date of the letter of resignation.

(9) A voting member of the Board may at any time, be removed

from membership of the Board by the Minister if, in the Minister’s

opinion to be stated in the instrument effecting the removal, the

member has become incapable, through ill-health, or any other

reasons of performing his functions, or his removal appears to the

Minister to be necessary for the effective performance by the

Corporation of its functions.

(10) If a voting member of the Board dies, resigns, retires,

becomes disqualified or is removed from office, the Minister may

appoint a person to be a member of the Board to fill the vacancy so

occasioned and the person so appointed shall hold office for the

remainder of the period for which the person who occasioned the

vacancy was appointed.

(1) The Chairman shall hold office for such term and on

such terms and conditions as the Minister may deem proper; the

Chairman shall be eligible for re-appointment.

(2) Where the Chairman ceases to hold office as a member of

the Board he shall also cease to hold the office of Chairman.

(3) The Chairman may, at any time, resign from his office as

Chairman by letter sent to the Minister and the resignation shall,

unless previously withdrawn in writing, take effect on the date

specified therein, being a date that does not precede the date of the

letter of resignation.

Where the Chairman is absent from Malta or is temporarily

incapacitated from performing the functions of his office, or is on

vacation, and where the post of Chairman is temporarily vacant, the

Deputy Chairman, if appointed, shall act instead of the Chairman

and shall exercise the powers and perform the functions of the

Chairman during such period.

(1)

The Chief Executive Officer shall be appointed by the

Board.

(2) The Chief Executive Officer shall be appointed to hold

office for a term not exceeding three years: provided that a Chief

Executive Officer shall be eligible for re-appointment for further

periods each of not more than three years: provided further that in

aggregate no person shall hold the post of Chief Executive Officer

for more than nine consecutive years.

(3) The Chief Executive Officer shall, subject to the direction

of the Board, carry on and manage and control the operations and

business of the Corporation and shall perform such other functions

as may be determined by the Board.

(4) The Chief Executive Officer shall not hold any other office

or position or carry on any business activity without the consent in

writing of the Board.

(5) The Chief Executive Officer may from time to time be

invited to attend meetings of the Board; however, he shall not have

a right to vote.

(1) The Board may act notwithstanding any vacancy

among its members: provided a quorum is present at each meeting.

(2)

(a) The quorum at all meetings of the Board shall be half

the number of voting directors for the time being

constituting the Board and shall in no case be less than

three voting members.

(b) In the absence of the Chairman at any meeting of the

Board the Deputy Chairman, if appointed, shall act as

Chairman, in the absence of both the Chairman and of

the Deputy Chairman the directors present may select

from amongst themselves a person to act as Chairman

at the meeting.

(3) The decisions of the Board shall be taken by a majority of

the votes of the members present and voting. The Chairman or

other person presiding at the meeting shall have a second or casting

vote.

(4) The Board shall hold such number of meetings as may be

necessary for the performance of its functions, and shall meet not

less than twice in every six months. The Chairman of his own

motion or at the request of any two of the voting directors may at

any time convene a meeting of the Board.

(5) The Board shall cause minutes of each meeting to be kept

and such minutes shall be confirmed at the next successive

meeting. Certified copies of the minutes of any meeting of the

Board shall be forwarded to the Minister on his request.

(6) The Board may make standing orders regulating its own

procedure generally, and, in particular, regarding the holding of

meetings of the Board, the notice to be given of such meetings, the

p r o c e e d i n g s t h e r e a t , t h e k e e p i n g o f m i n u t e s , t h e c u s t o d y,

production and inspection of such minutes, and the opening,

keeping, closing and audit of accounts: provided that subject to the

preceding provisions of this article and of any standing orders made

thereunder the Board may regulate its own procedure.

(1) The representation of the Corporation shall vest in the

Chairman or in such other person or persons as the Board may by

resolution designate. Notice of any such resolution shall be

published in the Gazette.

(2) Any document purporting to be an instrument made or

issued by the Corporation and signed by the Chairman or by the

Chief Executive Officer and by the Secretary, if any, on behalf of

the Corporation shall be received in evidence and shall, until the

contrary is proven, be deemed to an instrument made or issued by

the Corporation.

(1) The Board may establish committees, with such terms

of reference as may be decided by the Board, to assist and advise it

in relation to the performance of any of its functions and may

delegate to any such committee any of its functions, whether in

whole or in part.

(2) The members of the committees shall be appointed and

removed by the Board and shall consist of such number of members

as the Board may deem proper. A committee may include persons

who are not members of the Board or officers or employees of the

Corporation. Members of a committee may be removed by the

Board.

(3)

A committee may, at any time, be dissolved by the Board

Provided that this subarticle shall not apply to the Audit

Committee established under article 17.

(4)

The Board may regulate the procedure of any committee.

(5) The acts of a committee shall be subject to confirmation by

the Board save where the Board dispenses with the necessity for

such confirmation.

(6) There shall be paid out of the income of the Corporation to

members of a committee such allowances for expenses incurred by

them in the discharge of their functions as the Board may determine

with the consent of the Minister.

(1) The Board shall establish an Audit Committee with

written terms of reference which clearly lay down the authority and

duties of such committee.

(2)

(a) The Audit Committee shall meet at least four times a

year.

(b) Meetings of the Audit Committee shall be chaired by a

voting director of the Corporation.

(c) The members of the Audit Committee shall be

appointed on such terms and conditions as may be

determined by the Board.

(3) Without prejudice to the generality of the provisions of

subarticle (1), the Audit Committee shall have the following

functions

(a) oversight of the systems of internal control and risk

management of the Corporation and to assist and

support the Board in discharging its responsibilities in

relation thereto;

(b) to provide the communication link with external

auditors and to evaluate and co-ordinate the audit and

financial reporting process of the Corporation; and

(c) to review and assess the effectiveness of management

of the Corporation in its compliance with policies and

in the discharge of its regulatory and compliance

functions.

(4) The Audit Committee shall report to the Board annually and

at such other times as may be directed by the Board.

(1) The Corporation may employ, on such terms and

conditions as the Board may determine, such number of persons to

be members of staff of the Corporation, as it may consider

necessary for the proper performance of its functions.

(2) The grades of the staff of the Corporation, the numbers of

staff in each grade and the appropriate level of remuneration for

each grade shall be determined by the Board, with the concurrence

of the Minister who shall consult the Minister responsible for

finance.

(1) Where the Chief Executive Officer, a member of the

Board, a member of staff of the Corporation, a member of a

committee established under articles 16 or 17, or a consultant,

advisor or other person engaged by the Corporation, or a member

of the Board, has any interest in, or material to, any matter which

falls to be considered by the Board, or a committee established

under this Act, he shall -

(a) disclose to the Board or committee, as the case may

be, the nature of his interest at the first meeting of the

Board or committee after such interest is acquired or in

advance of any consideration of the matter, whichever

is the earlier,

(b) neither influence nor seek to influence a decision in

relation to such matter,

(c) take no part in any consideration of such matter,

(d) if he is the Chief Executive Officer, a member of the

Board, a member of the staff of the Corporation or a

member of a committee established under articles 16

or 17, withdraw from the meeting for so long as the

matter is being discussed or considered and shall not

vote or otherwise act in such capacity in relation to the

matter.

(2) Where a question arises as to whether or not a course of

conduct, if pursued by a person, would be a failure by him to

comply with the requirements of subarticle (1), the question shall

be determined by the Board and the decision and its motivation

shall be recorded in the minutes of the meeting where it was taken.

(3) Where a disclosure is made to the Board or to a committee

pursuant to subarticle (1), particulars of the disclosure shall be

recorded in the minutes of the relative meeting.

(4) Where a person referred to in this article fails to make the

required disclosure, the Board shall decide the appropriate action

(including removal from office or termination of contract) to be

taken

Provided that where such person is a voting director of the

Corporation the matter shall be reported to the Minister.

(1) Save as otherwise provided by this Act and subarticle

(2) or any other law, a person shall not, except where necessary for

the proper performance of his functions, without the consent of the

Board, disclose to any person any non-public information obtained

while performing (or as a result of having performed) duties as -

(a) a member of the Board;

(b) the Chief Executive Officer;

(c) a member of the staff of the Corporation;

(d) a member of a committee established under articles 16

or 17; or

(e) an advisor or consultant to the Corporation or an

employee of such person whilst performing duties

relating to such advice or consultation.

(2) Nothing in subarticle (1) shall prevent disclosure to the

Minister of information in a report made to the Corporation or on

behalf of the Corporation.

(3) Saving any disciplinary action which the Board may deem

appropriate to take, any person who violates the provisions of this

article shall be guilty of an offence and shall, on conviction, be

liable to a fine (multa) of not less than one thousand and one

hundred and sixty-four euro and sixty-nine cents (1,164.69) and not

more than eleven thousand and six hundred and forty-six euro and

eighty-seven cents (11, 646.87) or to imprisonment for a period not

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

(1) The Minister may, from time to time after consultation

with the Corporation, give to the Corporation directions of a

general character, not inconsistent with the provisions of this Act,

on the policy to be followed by the Corporation in carrying out its

functions under this Act.

(2) The Board shall give effect to the directions received from

the Minister under this article.

(3) The Corporation shall provide to the Minister all such

information with respect to the property and exercise of the

functions of the Corporation, and shall furnish him with returns,

accounts and other documents with respect thereto, and shall afford

him all required facilities for the verification of information

furnished in such manner and at such times as he may reasonably

require.

(4) Save as may be otherwise required or permitted for the

purposes of this Act, or in the course of a prosecution of an offence

committed in relation to this Act, in carrying out its functions, the

Corporation and its staff shall be bound by the provisions of the

Professional Secrecy Act and shall not divulge any information

about any applicant or any benefits granted to any applicant

without the prior written consent of such applicant or as otherwise

permitted by law.

(5) Every person having an official duty or being employed in

the administration of this Act shall regard and deal with all

documents and information relating to matters contemplated by or

pursuant to the provisions of this Act as secret and confidential and

shall make and subscribe before a Commissioner for Oaths a

declaration to this effect in the form prescribed which shall be

deposited with the Attorney General. Such persons shall not, unless

the Prime Minister otherwise directs in writing, be required to

produce to or before any court, tribunal, board, committee of

enquiry or other authority, or to divulge to any such court, tribunal,

board, committee of enquiry or other authority any matter or thing

coming to their notice or being in their possession in the

performance of their duties under this Act.

(6) Nothing in this article shall hinder the Corporation or its

staff

(a) from providing full access to the auditor of the

Corporation to all information which is required for

him to perform his duties;

(b) from providing full access to such other persons or

authorities as are entitled to receive such information

under provisions of applicable law for the carrying out

of their functions;

(c) from providing full information to the Commissioner

of Inland Revenue for the purposes of the Income Tax

Act;

(d) from preparing and publishing reports and statistical

reviews which include information about benefits

granted to applicants and beneficiaries of benefits

which do not divulge specific names or other specific

information which will permit the identification of

individual applicants.

PART V

Financial Provisions

(1) The initial capital of the Corporation shall be two

million and three hundred and twenty-nine thousand and three

hundred and seventy-three euro and forty cents (2,329,373.40) paid

in by the Government. Further capital shall be raised in such

manner as the Minister responsible for finance may, on the advice

of the Corporation, from time to time determine

Provided that the capital of the Corporation shall be held

entirely by the Government.

(2) The Corporation shall, in return for any moneys and any

property, rights or interests from time to time, paid or transferred to

the Corporation by the Government by way of subscription to the

capital of the Corporation, issue to the Minister responsible for

finance on behalf of the Government capital stock in the amounts

of any moneys so paid and received and in an amount equal in

nominal value to the amount agreed between the Corporation and

the Government as representing the value of any property, rights

and interests so transferred.

(1) The Corporation may, with the approval of the

Minister responsible for finance, from time to time borrow such

sums as it may require for the purpose of meeting any of its

obligations or discharging any of its functions.

(2) Notwithstanding the provisions of subarticle (1), the

Corporation may without further authority exercise its borrowing

powers for the purpose of borrowing temporarily, by way of

overdraft or otherwise, sums not exceeding in the aggregate two

million and three hundred and twenty-nine thousand and three

hundred and seventy-three euro and forty cents (2,329,373.40) at

any one time outstanding or exceeding such sum established by the

Minister responsible for finance by order published in the Gazette.

(3) For the purpose of securing any sums borrowed by the

Corporation or any liability assumed by the Corporation in the

exercise of its functions, the Corporation may hypothecate or

charge its property, or any part thereof, and may issue debentures,

debenture stock, bonds or other securities, whether outright or as

security for any debt, liability or obligation of the Corporation or of

any third party.

(1) The Corporation may establish funds as may be

required in the running of its operations.

(2) Such funds shall be managed by the Corporation in such

manner as it may determine; but no part of such funds shall be

applied otherwise than for the purposes of the Corporation.

It shall be the duty of the Corporation to conserve its assets

and to exercise and perform its functions under this Act as to

ensure that the expenditure required for the proper performance of

its functions shall, as far as practicable, be met out of its income.

(1) The Corporation shall in each financial year cause to

be prepared and shall adopt estimates of income and expenditure of

the Corporation for the following financial year.

(2) The Corporation shall cause to be kept proper accounts and

other records in respect of its operations and transactions, and shall

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

financial year.

(3) The accounts of the Corporation shall be audited by an

auditor or auditors appointed by the Corporation from year to year.

(4) The Corporation shall, not later than four months after the

end of each financial year, cause a copy of a statement of its

audited accounts to be sent to the Minister and to the Minister

responsible for finance together with a copy of the report of the

auditor or auditors with respect to such statement.

(1) The Corporation shall, not later than four months after

the end of each financial year, make and transmit to the Minister a

report of its activities during that year, containing such information

relating to the functions and to the proceedings of the Corporation

as the Minister may, from time, to time, require, together with the

audited accounts as provided under article 26.

(2) The Minister shall cause a copy of every such report and

accounts to be laid on the Table of the House of Representatives

within two weeks, or, if at any time the House is not in session,

within two weeks from the beginning of the next following session.

PART VI

Administration of Incentive Entitlements

(1) In the carrying out of its functions in terms of this Act,

any regulations or any guidelines, the Corporation shall

(a) determine upon request in writing the eligibility or

otherwise of the enterprise being carried out or

intended to be carried out by an undertaking;

(b) receive applications for support of the enterprise and

approve or otherwise any form of support; and

(c) issue an Incentive Entitlement Certificate to any

beneficiary, as stipulated in article 29, outlining the

support granted and its terms and conditions. Such

certificate shall be conclusive evidence of such matters

for all purposes of law.

(2) The Corporation shall determine applications in terms of

this Act and any regulations and guidelines made thereunder and

when imposing terms and conditions it shall apply the principles of

good practice and accountability.

(1) An Incentive Entitlement Certificate shall be issued by

the Corporation and shall be deemed to be a contract between the

Corporation, the Government of Malta and the beneficiary,

guaranteeing the grant and enjoyment of the relative benefit in

accordance with the terms and conditions stipulated therein and the

provisions of this Act, any regulations and any guidelines.

(2) No incentive or benefit contemplated by this Act shall be

enjoyed by any beneficiary for any year or year of assessment if the

President of Malta by order in writing declares that the grant or

acquisition or continued grant and acquisition of such incentive or

benefit is or would be against public policy (ordre public), and

where such an order is made it shall have effect as from the date

therein specified but in no case shall an order have retrospective

effect.

(3) Subject to the powers of the Corporation relating to

revocation of benefits in terms of Part VII of this Act and the

powers of the President in the preceding subarticle, the guarantee

given by subarticle (1) shall not be nullified by any retrospective

action, whether by legislation or otherwise.

(4) Subject to any other provision of this Act or of any

regulations or guidelines issued pursuant to this Act, in releasing a

certificate in accordance with the provisions of article 28(1)(c), the

Corporation may impose any conditions it may deem fit for the

enjoyment of any particular benefit.

(5) A certificate shall not imply any exemption of such

beneficiary from any procedure, duty, obligation, liability, fees or

dues unless expressly stated in the certificate or in an express

provision of a law, regulation or guideline which is expressly

referred to in the certificate.

(6) Any person dealing with an undertaking in possession of an

Incentive Entitlement Certificate shall act upon an Incentive

Entitlement Certificate issued in terms of this article without the

need for any further evidence of its eligibility, existence or status or

otherwise, and shall not require any proof of the authenticity of the

certificate other than that which appears on the face of it. Such

certificates shall, until the contrary is proved, be evidence of their

contents

Provided that in so far as the Incentive Entitlement

Certificate refers to fiscal incentives to which an undertaking may

be eligible, nothing in this subarticle shall limit the powers of the

Commissioner of Inland Revenue under the relevant legislation to

monitor compliance with the relevant conditions, and the said

Commissioner may make such enquiries and verification as he may

deem fit.

(7) The application for support shall identify the undertaking

involved in the relevant enterprise (the "relevant undertaking") and

it shall be deemed to be the main beneficiary, all other possible

beneficiaries being considered to be ancillary to it, and

consequently

(a) an application may only be made by the relevant

undertaking which shall be deemed to be authorised to

act on behalf of all other beneficiaries relative to the

application;

(b) all notices and other communications of whatsoever

nature by or to the Corporation, shall be made to and

by the relevant undertaking and a notice to the relevant

undertaking shall be deemed proper notice to all other

beneficiaries;

(c) the relevant undertaking shall be solely responsible for

possession and surrender of any certificate issued by

the Corporation;

(d) the revocation of a benefit from a relevant undertaking

shall imply the revocation of all related or connected

benefits for other beneficiaries; and

(e) notwithstanding the provisions of any other law, the

refund of the benefits granted which may be due in

terms of article 32(4) shall be the primary liability of

the relevant undertaking, any other beneficiary being

liable to account only in case of failure by the relevant

undertaking to do so within one year and in any case

only for the actual benefit received by it

Provided that when a relevant undertaking meets such

liability, it shall have a right to demand a contribution

from another beneficiary equal to the amount of

benefit actually received by such beneficiary.

(8) Reference to an "Incentive Entitlement Certificate" in this

Act shall include all terms and conditions which may be applicable

in virtue of this Act or any regulation or guideline made thereunder

as well as those of other documents which may be attached to the

certificate or which may be expressly referred to in the certificate.

(9) Insofar as an Incentive Entitlement Certificate refers to any

incentive relating to any tax, a copy shall be sent to the

Commissioner of Inland Revenue.

(1) Incentive Entitlement Certificates issued by the

Corporation shall be deemed to be public instruments, shall only be

used for the purposes authorised hereby and shall be surrendered to

the Corporation on its simple demand in writing.

(2) In the event of a request in terms of subarticle (1), the

beneficiary shall surrender, to the Corporation, the relevant

Certificate within seven days of the demand being communicated

to him and any person failing to surrender such Certificate within

such time shall be guilty of an offence against this Act and shall be

liable, on conviction, to a fine (multa) of two hundred and thirty-

two euro and ninety-four cents (232.94) and a fine (multa) of

eleven euro and sixty-five cents (11.65) for every day the default

continues.

Any person who, in any manner, forges or alters an

Incentive Entitlement Certificate or purports to use it for a purpose

not authorised by this Act or seeks to use it after its revocation in

terms of this Act, shall be guilty of an offence and shall be liable to

the same punishment as provided for in article 183 of the Criminal

Code.

PART VII

Revocation and Modification of Benefits

(1) Where any beneficiary fails to comply with any of the

terms or conditions of an Incentive Entitlement Certificate, the

Corporation may by notice in writing require such beneficiary

within thirty days of the receipt of such notice -

(a) to comply with such conditions; or

(b) to establish to the satisfaction of the Corporation that

failure to comply with such conditions was due to

some cause beyond its control and that there are

prospects of complying with such condition within

such time as the Corporation may consider reasonable.

(2) Where a beneficiary complies with the condition in

subarticle (1)(b), the Corporation may authorise reasonable

postponement for the purpose of compliance with such conditions,

as it thinks fit.

(3) Where a beneficiary fails to comply with the condition in

subarticle (1)(b) or, having been allowed a postponement under

subarticle (2), fails within the period of such postponement to

comply with such terms or conditions, the Corporation may revoke

any incentive or benefit granted to the beneficiary and that

revocation shall be operative from such date as may be determined

by the Corporation.

(4) Where an Incentive Entitlement Certificate is revoked, in

full or in part, in accordance with the provisions of this article, the

ben eficiary shall pay or repay to the Governm ent or to the

Corporation, as the case may be, any sums which it would have

paid to the Government or the Corporation but for the provisions of

this Act, any regulation or guideline or which it had received

thereunder, and any sums which the beneficiary is so liable to pay

or repay may be set off against any sums which may be due from

the Government or the Corporation to the beneficiary for any

reason whatsoever, including in the event of insolvency of the said

beneficiary, without prejudice to any right of the Government or

the Corporation for the recovery of any balance remaining due.

(5) In the circumstances contemplated in this article, the

Corporation may, in its sole discretion, in lieu of revoking a

certificate, in full or in part, agree to modify the terms and

conditions of an Incentive Entitlement Certificate so as to reflect

the conditions which are more appropriate on the basis of the

circumstances then known to it. The Corporation shall so proceed

only if the relevant undertaking has agreed in writing to such

modifications as may be proposed by the Corporation and to any

conditions under which they are offered.

PART VIII

Offences and Penalties

Any person who without reasonable excuse prepares any

incorrect statement or gives any incorrect information in relation to

any matter or thing falling under this Act, shall be guilty of an

offence and shall, on conviction, be liable to a fine (multa) of not

less than six hundred and ninety-eight euro and eighty-one cents

(698.81) and not exceeding four thousand and six hundred and

fifty-eight euro and seventy-five cents (4658.75).

(1) Any person who wilfully with intent to obtain any

incentive or benefit under this Act or to assist any other person to

do so -

(a) omits from a return or any other document or

statement made, prepared or submitted for the

purposes of or under this Act, any matter which should

be included therein; or

(b) makes any false statement or entry in any return or

other document or statement prepared or submitted for

the purposes of or under this Act; or

(c) gives any false answer, whether verbally or in writing,

to any question or request for information asked or

made in accordance with the provisions of this Act; or

(d) prepares or maintains or authorises the preparation or

maintenance of any false books of account or other

records or falsifies or authorises the falsification of

any books of account or records; or

(e) makes use of any fraud, art or contrivance whatever or

authorises the use of any such fraud, art or

contrivance,

shall be guilty of an offence, and shall for each such offence be

liable on conviction to a fine (multa) of not less than one thousand

and one hundred and sixty-four euro and sixty-nine cents

(1,164.69) and not exceeding eleven thousand and six hundred and

f o r t y - s i x e u r o a n d e i g h t y - s e v e n c e n t s ( 11 , 6 4 6 . 8 7 ) o r t o

imprisonment for any term not exceeding six months, or to both

such fine and imprisonment.

(2) Upon any person admitting to or being found guilty of any

of the above offences, the Corporation may revoke any Incentive

Entitlement Certificate issued by it by notice in writing without

following the procedures outlined in article 32.

If any person contravenes or fails to comply with any of

the requirements of this Act or of any regulations made thereunder,

in respect of which no special punishment is provided, he shall be

guilty of an offence and shall for each offence be liable, on

conviction, to a fine (multa) of not less than two hundred and

thirty-two euro and ninety-four cents (232.94) and not more than

one thousand and one hundred and sixty-four euro and sixty-nine

cents (1,164.69).

The provisions of this Act establishing offences and

punishments in respect thereof shall not affect the operation of any

other law establishing offences and punishments in respect of the

same acts or omissions and shall not, in particular, affect the

application of any higher punishment under any other law.

Proceedings for an offence under this Act may be

c o m m e nc e d a t a n y t i m e w i t h i n f i v e y e a r s f r o m t h e d a t e o f

commission of the offence.

PART IX

Transitory Provisions

(1) With effect from the effective date and subject to the

provisions of article 41, all the undertakings to which this article

applies shall, by virtue of this Act and without further assurance, be

transferred to, and shall vest in the Corporation under the same title

by which they were held by the Malta Development Corporation or

by the Malta External Trade Company Limited or by the Institute

for the Promotion of Small Enterprise Ltd, immediately before such

date.

(2)

(a) The Minister may by order from time to time direct

that any undertaking held by any organisation or entity

referred to in the order shall by virtue of the order,

subject to the provisions of article 41 vest in the

Corporation in the same manner as they were held

immediately before the effective date of the order by

such organisation or entity.

(b) The provisions of paragraph (a) shall apply with regard

to an organisation or entity which is wholly owned,

d i r e c t l y o r i n d i r e c t l y, b y t h e G o v e r n m e n t o r a

corporation established by law.

(c) The provisions of articles 39 and 40 shall mutatis

mutandis apply to any undertaking in respect of which

an order is made by the Minister in virtue of paragraph

(a).

(3)

For the purposes of this Part of the Act, "undertakings"

shall include all stocks and other property movable or immovable,

assets, powers, rights, privileges held or enjoyed in connection

therewith or appertaining thereto, as well as all liabilities and

obligations affecting or relating to any of the aforesaid

undertakings or other thing included therein as aforesaid.

Subject to article 41 and to the other provisions of this Act,

all laws, rules, regulations, orders, judgments, decrees, awards,

deeds, bonds, advances, contracts, agreements, instruments,

documents, warrants and working arrangements, subsisting

immediately before the appointed day, affecting or relating to the

Malta Development Corporation or by the Malta External Trade

Company Limited or by the Institute for the Promotion of Small

Enterprise Ltd, or to which any of the said entities was a party,

shall be of as full force and effect against or in favour of the

Corporation, and shall be enforceable as fully and effectually as if,

instead of the said entities, the Corporation had been named therein

or had been a party thereto.

(1) Subject to the provisions of article 41, where anything

has been commenced by or under the authority of the Malta

Development Corporation or the Malta External Trade Company

Limited or the Institute for the Promotion of Small Enterprise Ltd,

prior to the effective date and such thing is in relation to any of the

transferred undertakings, such thing may be carried on and

completed by or under the authority of the Corporation.

(2) Where immediately before the effective date any legal

proceeding is pending to which the Malta Development

Corporation or the Malta External Trade Company Limited or the

Institute for the Promotion of Small Enterprise Ltd is or is entitled

to be a party, and such proceeding refers to any of the transferred

undertakings, the Corporation shall, with effect from the effective

date, be substituted in such proceeding for the relative entity, as the

case may require, or shall be made a party thereto in like manner as

any of the said entities, as the case may be, would have become,

and such proceeding shall not abate by reason of the substitution.

(3) The Minister may by order make such incidental,

consequential and supplemental provisions as may be necessary or

expedient for the purpose of securing and giving full effect to the

transfer of any undertaking to the Corporation by or under this Act

and may make such orders as may be necessary to make any powers

and duties exercised by the Malta Development Corporation, the

Malta External Trade Company Limited or by the Institute for the

Promotion of Small Enterprise Ltd, in relation to any of the

transferred undertakings, exercisable by and on behalf of the

Corporation.

(1) The following matters which relate to the specific

entity indicated hereunder shall not be transferred to the

Corporation

(a) title to the premises from which the Malta

Development Corporation, was operating prior to the

effective date;

(b) all court proceedings and pending litigation

commenced, prior to the effective date, between any

one of Malta Development Corporation, the Malta

External Trade Company Limited, or the Institute for

the Promotion of Small Enterprise Ltd, and any of the

employees of any one of the said entities, whether

former or then current;

(c) obligations arising out of

(i)

all contracts of employment with any

employees, and

(ii) all contracts for service with any agents,

advisors or any service providers entered into

and effective prior to the effective date, between

any of the persons mentioned in subparagraphs

(i) and (ii) and any one of the Malta

Development Corporation, the Malta External

Trade Company Limited or the Institute for the

Promotion of Small Enterprise Ltd.

(2) All rights and proceedings relative to any of the matters

referred to in subarticle (1) hereof shall upon the effective date be

exercised by, instituted or continued by or against the Attorney

Genera1 or such other public officer in the name of the Government

or the Minister may from time to time by notice in the Gazette

determine.

PART X

Miscellaneous

The Corporation shall not be wound up except by or under

the authority of an Act of Parliament.

* (1) The Malta Development Corporation Act is hereby

repealed and subject to the provisions of articles 38 to 41 any

reference in any law to the Malta Development Corporation shall

be deemed to be a reference to the Corporation established under

this Act.

(2) The Malta External Trade Company Limited, the Institute

for the Promotion of Small Enterprise Ltd and the Malta Enterprise

Ltd. are without the requirement of any further formality required

by any other law wound up and dissolved.

† Article 7 establishing the Corporation shall be deemed to

have come into force on 1st May 2003 limitedly for the purpose of

recruiting such members of the staff as may be required for the

running of the Corporation upon the coming into force of the other

provisions of this Act and for such purpose until the coming into

force of article 10 the Board of the Corporation shall consist of the

Board of Directors of Malta Enterprise Ltd who for the purposes

stated in this article shall be deemed to have all the power, duties

*Not yet in force.

†Deemed to have come into force on 1st May, 2003.

and obligations of the Board of Directors under the foregoing

provisions of this Act.

Nothing contained in this Act shall affect the provisions of

any other law whatsoever except to the extent solely that the

provisions of this Act replace or supersede the provisions of that

law, and no incentive, exemption, reduction of taxation or other

benefit or privilege provided for under the provisions of this Act

shal l m odi fy any o bli gatio n to f urn ish r eturns, st atemen ts,

particulars or documents as may be required by any other law.