SERVICES (INTERNAL MARKET) ACT

SERVICES (INTERNAL MARKET)

CHAPTER 500

SERVICES (INTERNAL MARKET) ACT

To establish general provisions facilitating the exercise of freedom of

establishment for service providers and the free movement of services in

the internal market and to implement Directive 2006/123/EC.

29th December, 2009

ACT XXIII of 2009 , as amended by Act XVI of 2018 .

PART I - PRELIMINARY

The short title of this Act is the Services (Internal Market)

Act.

PART II - DEFINITIONS

[Article 6(1)]

Services and matters excluded from the application of article 6(1)

(1)

Services of general economic interest, inter alia

(a) in the postal sector, services covered by Directive 97/67/EC of the

European Parliament and of the Council of 15 December 1997 on

common rules for the development of the internal market of Community

postal services and the improvement of quality of service;

(b) in the electricity sector, services covered by Directive 2003/54/EC of

the European Parliament and of the Council of 26 June 2003 concerning

common rules for the internal market in electricity;

(c) in the gas sector, services covered by Directive 2003/55/EC of the

European Parliament and of the Council of 26 June 2003 concerning

common rules for the internal market in natural gas;

(d) water distribution and supply services and waste water services;

(e) treatment of waste.

(2) Matters covered by Directive 96/71/EC of the European Parliament and of

the Council of 16 December 1996 on the posting of workers in the framework of the

provision of services.

(3) Matters covered by Directive 95/46/EC of the European Parliament and of

the Council of 24 October 1995 on the protection of individuals with regard to the

processing of personal data and on the free movement of such data.

(4) Matters covered by Council Directive 77/249/EEC of 22 March 1977 to

facilitate the effective exercise by lawyers of freedom to provide services.

(5)

The activity of judicial recovery of debts.

(6) Matters covered by Title II of Directive 2005/36/EC as transposed into

Maltese law by virtue of the Recognition of Professional Qualifications Regulations,

2007, as well as requirements in the Member State where the service is provided

which reserve an activity to a particular profession.

(7) Matters covered by Regulation (EEC) No 1408/71 on the application of

social security schemes to employed persons or self employed persons and to

members of their families moving within the Community.

(8) As regards administrative formalities concerning the free movement of

persons and their residence, matters covered by the provisions of Directive 2004/38/

EC on the right of citizens of the European Union and their family members to move

and reside freely within the territory of the member states with which beneficiaries

must comply.

(9) As regards third country nationals who move to another Member State in the

context of the provision of a service, the possibility for Member States to require

visa or residence permits for third country nationals who are not covered by the

mutual recognition regime provided for in Article 21 of the Convention

implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of

checks at the common borders or the possibility to oblige third country nationals to

report to the competent authorities on or after their entry.

(10) As regards the shipment of waste, matters covered by Council Regulation

(EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of

waste within, into and out of the European Community.

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(11) Copyright, neighbouring rights and rights covered by Council Directive 87/

54/EEC of 16 December 1986 as transposed into Maltese law by virtue of the

Copyright Act, and regulations made thereunder, on the legal protection of

topographies of semiconductor products and by Directive 96/9/EC of the European

Parliament and of the Council of 11 March 1996 on the legal protection of databases,

as well as industrial property rights.

(12) Acts requiring by law the involvement of a notary public.

(13) Matters covered by Directive 2006/43/EC of the European Parliament and of

the Council of 17 May 2006 on statutory audit of annual accounts and consolidated

accounts.

(14) The registration of vehicles leased in another Member State.

(15) Provisions regarding contractual and non-contractual obligations, including

the form of contracts, determined pursuant to the rules of private international law.

In this Act, unless the context otherwise requires

"Appeals Board" means the appeals boards, tribunals or courts

established by law, recourse to which may be made by any

aggrieved person following a decision of a competent authority;

"authorisation" means a permit, licence, warrant, appointment,

concession or any formal or implied decision concerning access to

a service activity or the exercise thereof;

"authorisation scheme" means any authorisation and other

procedure of an administrative nature, under which a provider or

recipient is in effect required to take steps in order to commence

the activity in question and obtain, from a competent authority,

authorisation concerning access to a service activity or the exercise

thereof;

"commercial communication" means any form of communication

designed to promote, directly or indirectly, the goods, services or

image of an undertaking, organisation or person engaged in

commercial, industrial or craft activity, or practicing a regulated

profession. The following do not in themselves constitute

commercial communications

(a) information enabling direct access to the activity of

the undertaking, organisation or person, including in

particular a domain name or an electronic-mailing

address;

(b) communications relating to the goods, services or

image of the undertaking, organisation or person,

compiled in an independent manner, particularly when

provided for no financial consideration;

"competent authority" means any body or authority established

and, or designated by law and vested with a supervisory and, or

regulatory role in relation to service activities, including the

regulation of access to service activities and, or the exercise

thereof;

"the Directive" means Directive 2006/123/EC of the European

Parliament and of the Council of 12 December, 2006, on services in

the internal market;

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"establishment" means the actual pursuit of an economic activity

as referred to in Article 43 of the Treaty, by a service provider for

an indefinite period and through a stable infrastructure from where

the business of providing services is actually carried out;

"the European Commission" means the Commission of the

European Community;

"Internal Market Information System" means the information

system, established further to Article 34 of the Directive, through

which competent authorities exchange information in fulfilment of

their obligations under Chapter VI of the Directive;

"Member State" means a member state of the European

Economic Area;

"Member State of establishment" means the Member State in

whose territory the provider of the service concerned is established;

"Member State where the service is provided" means the

Member State where the service is supplied by a provider

established in another Member State;

"the Minister" means the Minister responsible for the economy;

"overriding reasons relating to the public interest", unless

otherwise specified in this Act, means the reasons recognised as

such in the case law of the European Court of Justice, and as they

may continue to evolve, including the following grounds: public

policy, public security, public safety, and public health; the

maintenance of order in society; social policy objectives, the

protection of the recipients of services; consumer protection; the

protection of workers including the social protection of workers;

animal welfare; the preservation of the financial balance of the

social security system; the prevention of fraud; the prevention of

unfair competition; the protection of the environment and the urban

environment including town and country planning; the protection

of creditors; safeguarding the sound administration of justice; road

safety; the protection of intellectual property; cultural policy

objectives including safeguarding the freedom of expression of

various elements in particular social, cultural, religious and

philosophical values of society; the need to ensure a high level of

education, the maintenance of press diversity and the promotion of

the national language; the preservation of national historical and

artistic heritage; and veterinary policy;

"point of single contact" means the electronic system through

which the competent authorities shall fulfil their functions relating

to the completion of all procedures and formalities necessary for

establishment and access to and exercise of a service activity in

Malta and the provision of relevant information to an applicant, a

provider and recipients in terms of this Act or as may be

prescribed;

"provider" means any natural person who is a national of a

Member State, or any legal person as referred to in Article 48 of the

Treaty and established in a Member State, who offers or provides a

service;

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"recipient" means any natural person who is a national of a

Member State or who benefits from rights conferred upon him by

Community acts, or any legal person as referred to in Article 48 of

the Treaty and established in a Member State, who, for professional

or non-professional purposes, uses, or wishes to use, a service;

"regulated profession" means a professional activity or a group

of professional activities as referred to in Article 3(1)(a) of

Directive 2005/36/EC on the recognition of professional

qualifications as transposed by the Recognition of Professional

Qualifications Regulations;

"requirement" means any obligation, prohibition, condition or

limit provided for in the laws, regulations or administrative

provisions, administrative practice, the rules of professional

bodies, or the collective rules of professional associations or other

professional organisations, adopted in the exercise of their legal

autonomy;

"service" means any self-employed activity performed for an

economic consideration as referred to in Article 50 of the Treaty;

"services of a general economic interest" means those services

declared by the Minister as services of general economic interest in

terms of article 30(3) of the Competition Act in conformity with

Community law;

"the Treaty" means the Treaty establishing the European

Community.

PART III - SCOPE OF APPLICATION OF THIS ACT

[(Article 8(3) and (4)]

Cooperation with a competent authority of another Member State

(1) When a service is being provided in another Member State by a provider

established in Malta, a competent authority shall cooperate with the relevant

competent authority of another Member State, and fulfil its obligations as stipulated

hereunder

(a) when receiving a request from the relevant competent authority of

another Member State, a competent authority shall confirm whether a

provider is established in Malta and that to its knowledge the provider is

not exercising his activity in an unlawful manner;

(b) the competent authority shall carry out such checks, inspections and

investigations as requested and, or necessary, and shall inform the

relevant competent authority in the other Member State of the results

and, or of any measures taken by it

Provided that a competent authority may decide on which measures are

appropriate;

(c) in the event that a competent authority encounters difficulty in meeting

a request for information or in carrying out checks, inspections or

investigations, it shall rapidly inform the requesting competent

authority with such difficulties in order to find a solution.

(2) Upon gaining actual knowledge of any conduct or specific acts by a provider

established in Malta which provides services in other Member States, that, to its

knowledge, could cause serious damage to the health and safety of persons or to the

environment, the competent authority shall inform all other relevant competent

authorities of other Member States and the Commission within the shortest possible

period of time.

(3) When a service is being provided in Malta, in the event of a temporary

movement by a provider established in another Member State

(a) at the request of the relevant competent authority of the Member State

of establishment, the competent authority shall carry out checks,

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inspections and investigations necessary for ensuring the effective

supervision by the competent authority of establishment

Provided that a competent authority may decide on the most appropriate

manner to meet the request by the Member State of establishment;

(b) the competent authority may, on its own initiative, conduct checks,

inspections and investigations on the spot, provided that those checks,

inspections and investigations are not discriminatory, motivated by the

fact that the provider is established in another Member State and are

proportionate;

(c) in the event that a competent authority encounters difficulty in meeting

a request for information or in carrying out checks, inspections or

investigations, it shall rapidly inform the requesting competent

authority with such difficulties in order to find a solution;

(d) with respect to the requirements imposed by the competent authority in

terms of article 6(3), the competent authority shall take all measures

necessary to ensure that the provider complies with these requirements

and shall carry out checks, inspections and controls necessary to

supervise the service provided.

(4) Where a competent authority becomes aware of serious and specific acts or

circumstances relating to a service activity that could cause serious damage to health

and safety of persons or to the environment in Malta or in the territory of other

Member States, the competent authority shall inform the relevant competent

authority of the Member State of establishment, the other Member States concerned

and the Commission within the shortest possible time.

(1)

This Act shall apply to services supplied by a provider.

(2) Without prejudice to subarticle (1), this Act shall not apply

to the following activities

(a) financial services, such as banking, credit, insurance

and re-insurance, occupational or personal pensions,

securities, investment funds, payment and investment

advice, including the services listed in Annex I to

Directive 2006/48/EC relating to the taking up and

pursuit of the business of credit institutions as

transposed by the European Passport Rights for Credit

Institutions Regulations;

(b) electronic communications services and networks, and

associated facilities and services, with respect to

matters covered by Directives 2002/19/EC (Access

Directive), 2002/20/ EC (Authorisation Directive),

2002/21/EC (Common Regulatory Framework), 2002/

22/EC (Universal Services Directive) and 2002/58/EC

(Directive on Piracy and Electronic Communication)

as transposed into Maltese legislation;

(c) services in the field of transport, including port

services, falling within the scope of Title V of the

Treaty;

(d) services of temporary work agencies;

(e) healthcare services including pharmaceutical services

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provided by health professionals to assess, maintain

and restore the state of health to patients, whether or

not they are provided via healthcare facilities, and

regardless of the ways in which they are organised and

financed at national level or whether they are public or

private;

(f)

audiovisual services, including cinematographic

services, whatever their mode of production,

distribution and transmission, and radio broadcasting;

(g) gambling activities as regulated by the Gaming Act;

(h) activities which are connected with the exercise of

official authority as set out in Article 45 of the Treaty;

(i) social services relating to social housing, childcare

and support of families and persons permanently or

temporarily in need which are provided by the State,

by providers mandated by the State or by charities

recognised as such by the State;

(j) private security services;

(k) services provided by notaries and court marshals, who

are appointed by an official act of government;

(l) services in the field of taxation.

(3) If the provisions of this Act are in conflict with a provision

of a Community act governing specific aspects of access to, or

exercise of a service activity in, specific sectors or for specific

professions, the provision of the Community act shall prevail and

shall apply to those specific sectors or professions. These include

(a) Directive 96/71/EC on the posting of workers in the

framework of the provision of services;

(b) Regulation (EEC) No 1408/71 on the application of

social security schemes to employed persons and self-

employed persons, and to members of their families

moving within the Community;

(c) Council Directive 89/552/EEC of 3 October 1989 on

the coordination of certain provisions laid down by

law, regulation or administrative action in Member

States concerning the pursuit of television

broadcasting activities;

(d) Directive 2005/36/EC on the recognition of

professional qualifications.

(4)

Furthermore, this Act shall not apply to

(a) rules of private international law, in particular rules

governing the law applicable to contractual and non-

contractual obligations; and

(b) rules concerning the rules of jurisdiction of the Courts.

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PART IV - COMPETENT AUTHORITIES

[Article 8(6)]

Procedure to be followed on transmission of information

on the good repute of a provider

(1) In complying with a request for information on the good repute of a

provider, a competent authority shall abide by the provisions of disclosure of

information provided under any other law.

(2) Without prejudice to paragraph (1), a competent authority upon receipt of a

request by another competent authority shall supply any information on disciplinary

or administrative decisions or on any other decision concerning a state of insolvency

or bankruptcy which are directly relevant to the provider’s competence or reliability.

(3) In the event that a request concerns the disclosure of information relating to

sanctions and administrative decisions, a competent authority shall ensure that such

sanctions and decisions are final.

(4) In the event that a request concerns the disclosure of information on any

other enforceable decision, the competent authority shall clearly indicate whether

the decision is final or subject to appeal. Should the latter be the case, the competent

authority shall provide the expected time when the decision of appeal is expected to

be delivered.

(5) In the event that a competent authority receives a request from a competent

authority in another Member State relating to the disclosure of information on a

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criminal sanction of a service provider which is directly relevant to the provider’s

competence or professional reliability, the competent authority shall refer such

request to the Commissioner of Police and relay back the information received to the

requesting competent authority

Provided that a request made pursuant to the objectives mentioned in this

sub-article must be duly substantiated, and the reason of the request is made known

to the competent authority.

(6) The competent authority which supplies the information shall inform the

service provider that that information has been disclosed.

Further to the fulfilment of the powers, functions and

responsibilities attributed to a competent authority, in the founding

and enabling legislation concerning their area of competence, and

without prejudice to the allocation of functions and powers vested

among authorities within the national administrative system, a

competent authority shall

(a) simplify procedures and formalities applicable to the

access to a service activity and to the exercise thereof;

(b) act objectively, transparently, efficiently and in a

timely manner;

(c) provide information and assistance to providers and

recipients subject to the provisions of this Act;

(d) make it possible to complete all procedures and

formalities relating to access to a service activity and

to the exercise thereof available electronically through

the designated point of single contact

Provided that the requirement to make it possible to

complete all procedures and formalities electronically

through the point of single contact shall not be

applicable to the inspection of premises on which the

service is provided or of equipment used by the

provider or to the physical examination of the

capability or of the personal integrity of the provider

or of his responsible staff;

(e) assist competent authorities of another Member State

and seek their assistance in fulfilling the supervisory

obligations in terms of article 8;

(f) perform such other functions as may from time to time

be assigned to it by the Minister, in consultation with

other Ministers, as may be applicable.

[(Article 6(3)]

Mutual assistance in the case of a case-by-case derogation

(1) Where a competent authority intends to take a measure pursuant to article

6(3) of this Act, the following procedure shall apply without prejudice to court

proceedings, including preliminary proceedings and acts carried out in the

framework of a criminal investigation.

(2) A competent authority shall request the competent authority in the Member

State of establishment to take measures with regard to the provider, supplying all

relevant information on the services and the circumstances of the case.

(3) The competent authority in the Member State of establishment shall, within

the shortest time possible, check whether the provider is operating lawfully and

verify the acts underlying the request.

(4) Following a reply from the competent authority in the Member State of

establishment of the measures taken or envisaged to be taken or, as the case may be,

the reason why it has not taken any measures, the competent authority shall notify

the European Commission and the competent authority in the Member State of

establishment of its intention to take measures, for the following reasons

(a) why it believes the measures taken or envisaged by the competent

authority in the Member State of establishment are inadequate;

(b) why it believes the measure it intends to take fulfils the following

conditions

(i) the national measure has not been subject to Community

harmonisation in the camp of the safety of services;

(ii) the measure provides for a higher level of protection of the

recipient than would be the case in a measure taken by the

relevant competent authority in the Member State of

establishment in accordance with its national provisions;

(iii) the relevant competent authority in the Member State of

establishment has not taken any measures or has taken measures

which are insufficient as compared with those referred in sub-

paragraph (ii);

(iv) the measures are not proportionate.

(5) The measures may not be taken before fifteen working days from the date of

notification as provided in paragraph (4).

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(6) However the competent authority shall, in case of urgency, refrain from

following the above procedure, and shall notify the measures taken, together with

the reasons of urgency, within the shortest possible period of time to the Commission

and the relevant competent authority in the Member State of establishment.

(1) Where a competent authority grants and regulates

access to a service activity, in the carrying out of its authorisation

functions, on the basis of an authorisation scheme, the scheme shall

(a) non-discriminatory;

(b) necessary, and

(c) justified by an overriding reason relating to the public

interest

Provided that the public interest objective being pursued

cannot be attained by means of a less restrictive measure, in

particular because a posteriori inspections, checks and controls

would take place too late to be genuinely effective.

(2) The competent authority shall assess applications and grant

authorisations based on criteria that are

(a) non-discriminatory;

(b) justified by an overriding reason related to public

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interest and proportionate to the attainment of that

public interest objective;

(c) clear and unambiguous;

(d) objective;

(e) made public in advance; and

(f) transparent and accessible.

(3) A competent authority may not make access to or the

exercise of a service activity in Malta subject to compliance to any

of the following, in conformity with European Union law

(a) discriminatory requirements based directly or

indirectly on nationality or, in the case of companies,

the location of the registered office, including in

particular

(i) nationality requirements for the provider, his

staff, persons holding the share capital or

members of the provider’s management or

supervisory bodies;

(ii) a requirement that the provider, his staff,

persons holding the share capital or members of

the provider’s management or supervisory

bodies be resident in Malta;

(b) a prohibition on having an establishment in more than

one Member State or on being entered in the registers

or enrolled with professional bodies or associations of

more than one Member State;

(c) restrictions on the freedom of a provider to choose

between a principal or a secondary establishment, in

particular an obligation on the provider to have its

principal establishment in Malta, or restrictions on the

freedom to choose between establishment in the form

of an agency, branch or subsidiary;

(d) conditions of reciprocity with the Member State in

which the provider already has an establishment;

(e) the case-by-case application of an economic test

making the granting of authorisation subject to proof

of the existence of an economic need or market

demand, an assessment of the potential or current

economic effects of the activity or an assessment of

the appropriateness of the activity in relation to the

economic planning objectives set by the competent

authority; this prohibition shall not concern planning

requirements which do not pursue economic aims but

serve overriding reasons relating to the public interest;

(f) the direct or indirect involvement of competing

operators, including within consultative bodies, in the

granting of authorisations or in the adoption of other

decisions of the competent authorities, with the

exception of professional bodies and associations or

other organisations acting as the competent authority;

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this prohibition shall not concern the consultation of

organisations, such as chambers of commerce or social

partners, on matters other than individual applications

for authorisation, or a consultation of the public at

large;

(g) an obligation to provide or participate in a financial

guarantee or to take out insurance from a provider or

body established in Malta; this paragraph is without

prejudice to sub-article (5) or to requirements relating

to the participation in a collective compensation fund

for members of professional bodies or organisations;

(h) an obligation to have been pre-registered, for a given

period, in the registers held in Malta or to have

previously exercised the activity for a given period in

Malta.

(4) Where a competent authority makes access to a service

activity or the exercise thereof subject to any of the following non-

discriminatory requirements

(a) quantitative or territorial restrictions;

(b) an obligation on the provider to take a specific legal

form;

(c) requirements which relate to the shareholding of a

company;

(d) requirements, other than those concerning matters

covered by Directive 2005/36/EC on the recognition of

professional qualifications as transposed by the

Recognition

of

Professional

Qualifications

Regulations, or provided for in other Community

Instruments, which reserve access to the service

activity in question to particular providers by virtue of

the specific nature of the activity,

it shall ensure that the requirements are

(i)

not directly nor indirectly discriminatory on the

basis of the nationality of the individual or the

registered office of the company;

(ii) justified by an overriding reason relating to the

public interest; and

(iii) proportionate and suitable for attaining the

objective pursued

Provided that where the access to the service activity in

question, or the exercise thereof, is a service of general economic

interest, this sub-article shall apply only in so far as it does not

obstruct the performance, in law or in fact, of the public service

obligation task assigned to the provider or providers

Provided further that with effect from 28 December 2009,

the introduction of the said non-discriminatory requirements shall

be notified to the European Commission through established

(5)

Without prejudice to arrangements provided for in other

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Community instruments concerning professional insurance or

guarantees, a competent authority may request a provider

established in Malta whose services present a direct and particular

risk to the health and safety of the recipient or a third person, or to

the financial security of the recipient, to subscribe to a professional

liability insurance appropriate to the nature and extent of the risk,

or provide a guarantee or similar arrangement which is equivalent

or essentially comparable as regards it purpose.

For the purpose of this sub-article

"direct and particular risk" means a risk arising directly from the

provision of the service;

"health and safety" means, in relation to a recipient or a third

person, the prevention of death or serious personal injury;

"financial security" means, in relation to a recipient, the

prevention of substantial losses of money or of value of property;

"professional liability insurance" means insurance taken out by a

provider in respect of potential liabilities to recipients and, where

applicable, third parties arising out of the provision of the service.

A competent authority shall accept as sufficient evidence

attestations of such insurance cover issued by credit institutions

and insurers established in other Member States.

(6) A competent authority may not impose requirements on a

service provider established in Malta which oblige him to exercise

a specific service activity exclusively or which restricts him from

exercising his service activity jointly or in partnership except in the

case of

(a) regulated professions, so long as it is justified on the

grounds of ethics and conduct;

(b) providers of certification, accreditation, technical

monitoring, test or trial services, so long as it is

justified on the grounds of independence and

impartiality

Provided that where a competent authority authorises or

permits the carrying out of multi-disciplinary activities between

providers established in Malta, it shall ensure prevention of any

conflict of interest from among the providers, the subsistence of

independence and impartiality, and the adherence to professional

ethics and codes conduct where applicable.

(7) A competent authority or any other professional body

empowered at law to regulate the exercise of regulated professions,

shall not prohibit commercial communications by the regulated

professions

Provided that professional rules on commercial

communications shall be non-discriminatory, justified by an

overriding reason relating to the public interest and proportionate

Provided further that commercial communications by the

regulated professions comply with professional rules, in

conformity with Community law, which relate, in particular, to the

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independence, dignity and integrity of the profession, as well as to

professional secrecy, in a manner consistent with the specific

nature of each profession.

(8) When a service provider is already established in another

Member State, and seeks establishment in Malta

(a) where the service activity is subject to an authorisation

scheme or the fulfilment of other requirements

regulating establishment in Malta, the competent

authority shall not duplicate requirements or controls

which are equivalent or essentially comparable as

regards their purpose to which a provider may already

be subject to in another Member State where he is

established

Provided that the provisions of this paragraph shall not

apply to the documents referred to in Article 7(2) and

50 of Directive 2005/36/EC, in Articles 45(3), 46, 49

and 50 of Directive 2004/18/EC of the European

Parliament and of the Council of 31 March 2004 on the

coordination of procedures for the award of public

works contracts, public supply contracts and public

service contracts, in Article 3(2) of Directive 98/5/EC

of the European Parliament and of the Council of 16

February 1998 to facilitate practice of the profession

of lawyer on a permanent basis in a Member State

other than that in which the qualification was obtained,

in the First Council Directive 68/151/EEC of 9 March

1968 on coordination of safeguards which, for the

protection of the interests of members and others, are

required by Member States of companies within the

meaning of the second paragraph of Article 58 of the

Treaty, with a view to making such safeguards

equivalent throughout the Community and in the

Eleventh Council Directive 89/666/EEC of 21

December 1989 concerning disclosure requirements in

respect of branches opened in a Member State by

certain types of company governed by the law of

another Member State;

(b) where a competent authority requires a provider to

supply a certificate, attestation or document proving

that a requirement has been satisfied in terms of this

Act

(i) it shall accept any document from another

Member State which serves an equivalent

purpose or from which it is clear that the

requirement in question has been satisfied;

(ii) it may not require a document from another

Member State to be produced in its original form

or as a certified copy or certified translation save

in the cases provided for in any Community

instrument or where such a requirement is

justified by an overriding reason relating to the

public interest, including public order and public

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security

Provided that this paragraph shall not affect the right

of a competent authority from requesting a non-

certified translation of documentation in the Maltese

or English language

Provided further that the competent authority may

make use of the electronic system referred to in article

8 to carry out necessary verification, checks and

controls with the relevant competent authority in the

Member State of establishment;

(c) when a competent authority requires a provider to

subscribe to a professional liability insurance in terms

of sub-article (5), a competent authority may not

require a provider to subscribe to a professional

liability insurance or a guarantee where he is already

covered by an insurance or guarantee which is

equivalent or essentially comparable, as regards its

purpose and the cover it provides in terms of the

insured risk, the insured sum, or a ceiling for a

guarantee and possible exclusions from the cover in

another Member State in which the provider is already

established. Where equivalence is only partial, a

competent authority may require a supplementary

insurance or guarantee to cover those aspects not

already covered.

(9)

(a) Where the number of authorisations available for a

given service activity is limited because of the scarcity

of available natural resources, technical capacity or if

justified by an overriding reason relating to public

interest, a competent authority shall apply a selection

procedure to potential candidates in order to ensure

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

competition, including in particular adequate publicity

about the launch, conduct and completion of the

procedure.

(b) Subject to the provisions of paragraph (a) and sub-

articles (1) and (2), in establishing the rules for the

selection procedure, the competent authority may give

consideration to issues relating to public health, social

policy objectives, the health and safety of employees

or self-employed persons, the protection of the

environment, the preservation of cultural heritage and

other overriding reasons relating to the public interest,

in conformity with Community law.

(10) (a) An authorisation granted to a provider shall be for an

indefinite period, except where

(i)

the authorisation is being automatically renewed

or is subject only to the continued fulfilment of

requirements;

(ii) the number of available authorisations is limited

in terms of sub-article (9);

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(iii) a limited authorisation period can be justified by

an overriding reason relating to the public

interest.

(b) In cases referred to in paragraph (a)(ii), an

authorisation shall be granted for an appropriate

limited period enabling the provider to recoup the cost

of investment and to make a fair return on the capital

invested, which authorisation may not be open to

automatic renewal nor confer any other advantage on

the provider whose authorisation has just expired or on

any person having any particular links with that

provider.

(11) (a) An authorisation granted by a competent authority

shall enable the provider to have access to the service

activity or the exercise thereof throughout the national

territory including by means of setting up agencies,

subsidiaries, branches or offices, except where the

authorisation for each individual establishment or a

limitation of authorisation to a certain part of the

territory is justified by an overriding reason relating to

public interest.

(b) The service provider shall be required to inform the

competent authority of the creation of subsidiaries,

branches, offices or agencies whose activities fall

within the scope of the authorisation scheme.

(12) In the fulfilment of its authorisation function, a competent

authority shall

(a) ensure that the procedures and formalities are

maintained sufficiently simple, clear, objective and

made public in advance, and shall not unduly

complicate or delay the commencement of the service

activity by the provider;

(b) acknowledge all applications requesting authorisation;

specifying the time period within which the

application shall be processed referred to in paragraph

(d), the available means of redress and where

applicable, a statement that in the absence of a

response within the time-period specified the

authorisation shall be deemed to have been granted;

(c) in the case of an incomplete application, inform the

applicant as quickly as possible of the need to supply

any additional information, together with the

consequences which ensue should the applicant delay

in providing the said information or requirements;

(d) process an application for an authorisation as quickly

as possible and in any event within a time period

which shall be fixed and made public in advance

failing which it shall be deemed that the authorisation

has been granted, the period will start to run from the

day when all due information and requirements have

been submitted and any other formalities have been

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completed in order for the competent authority to

process the application

Provided that the time period may be extended once

for a limited time when justified by the complexity of

the issue, and due justification shall be given to the

applicant before the original period has expired

Provided further that a competent authority may make

different arrangements where objectively justified by

overriding reasons relating public interest;

(e) provide information regarding the means of redress

available in case of non-acceptance of an application;

(f) grant authorisation as soon as the applicant fulfils all

requirements, without prejudice to the right of the

competent authority to revoke or modify an

authorisation when the conditions for authorisation are

no longer met by the provider;

(g) in the case of rejected applications due to failure to

comply with the required procedures or formalities,

inform the applicant of the rejection as soon as

possible;

(h) except in the case of the granting of an authorisation, a

decision from a competent authority, including refusal

or withdrawal, shall be fully reasoned and shall be

open to challenge before the Appeals Board.

[Article 10(1) and (2)]

Information to be provided to a recipient

(1) A provider established in Malta shall make the following information

available to a recipient at all times

(a) his name, legal status and form, the registered geographic address at

which he is established and details enabling him to be contacted rapidly

and communicated with directly and, as the case may be, by electronic

means;

(b) where the provider is subject to a code of conduct, is a member of a

trade association or professional body which provides recourse to

settlement dispute proceedings other than judicial proceedings, the

details of such body and the manner how the information on the

characteristics and conditions relating to such proceedings may be

obtained;

(c) where the provider is registered in a trade or other similar public

register, the name of that register and the provider’s registration

number, or equivalent means of identification in that register;

(d) where the activity is subject to an authorisation scheme, the particulars

of the relevant competent authority or the single point of contact;

(e) where the provider exercises an activity which is subject to VAT, the

identification number referred to in Article 22(1) of Sixth Council

Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws

of the Member States relating to turnover taxes - Common system of

value added tax: uniform basis of assessment;

(f) in the case of the regulated professions, any professional body or

similar institution with which the provider is registered, the professional

title and the Member State in which that title has been granted;

(g) the general conditions and clauses, if any, used by the provider;

(h) the existence of contractual clauses, if any, used by the provider

concerning the law applicable to the contract and, or the competent

courts;

(i) the existence of an after-sales guarantee, if any, not imposed by law;

(j) the price of the service, where a price is pre-determined by the provider

for a given type of service;

(k) the main features of the service, if not already apparent from the

context;

(l) where he is subject to an insurance cover or other guarantee, the contact

details of the insurer or guarantor and the territorial coverage.

The information referred to in subparagraphs (a) to (l)

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(i) shall be provided at the provider’s initiative; and

(ii) shall be easily accessible to the recipient at the place where the

service is provided or the contract concluded; or

(iii) can be easily accessed by the recipient electronically by means of

an address supplied by the provider; or

(iv) appears on all documentation supplied to the recipient by the

provider which sets out a detailed description of the service he

provides.

(2) A provider shall make the following information available at the recipient’s

(a) the price of the service and if an exact price cannot be quoted, the

method for calculating the price or a detailed estimate;

(b) a reference to the professional rules applicable in the Member State of

establishment and how to access them;

(c) information on their multi-disciplinary activities and partnerships which

are directly linked to the service in question and on the measures taken

to avoid conflicts of interest. Such information shall be included in any

information document in which providers give a detailed description of

their services;

(d) information, if any, on the provider’s code of conduct, or membership

of a trade association or professional body which provides for recourse

to a non-judicial means of dispute settlement. The provider shall specify

how to access detailed information on the characteristics of, and

conditions for, the use of non-judicial means of dispute settlement.

(3) The provider shall ensure that the information supplied in accordance with

paragraphs (1) and (2) is made a vailable or communicated i n a clear and

unambiguous manner, and in good time, before the conclusion of the contract and,

where there is no written contract, before the service is provided.

(1) With the exclusion of service activities and matters

included under the First Schedule, a competent authority shall

respect the right of a provider that is lawfully established and

providing services in another Member State to provide services in

Malta, and may not prevent him from providing such service

activity by imposing requirements which are discriminatory,

unnecessary or disproportionate.

For the purposes of this sub-article

(a) a requirement is discriminatory if it necessitates the

fulfilment of obligations which relate to the nationality

of the applicant, including the place of establishment

of a legal person;

(b) a requirement is unnecessary if it is not justified by

reasons of public policy, public security, public health

or the protection of the environment;

(c) a requirement lacks proportionality if it goes beyond

what is necessary to pursue the objective.

(2) Without prejudice to sub-article (1), a competent authority

may not subject a provider established in another Member State

who wishes to provide services in Malta, to any of the following

requirements

(a) an obligation on the provider to have an establishment

in Malta;

(b) an obligation on the provider to obtain an

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authorisation from the competent authority including

entry in a register or registration with a professional

body or association in Malta except where provided

for in this Act and other instruments of Community

law;

(c)

a ban on the provider setting up a certain form or type

of infrastructure in Malta, including an office or

chambers, which the provider needs in order to supply

the services in question;

(d)

the application of specific contractual arrangements

between the provider and the recipient which prevent

or restrict service provision by the self-employed;

(e)

an obligation on the provider to possess an identity

document issued by the relevant Maltese authorities

for the exercise of a service activity;

(f)

requirements which affect the use of equipment and

material which are an integral part of the service

provided, unless necessary for the purpose of health

and safety at work;

(g)

restriction on the freedom to provide services as

contemplated under article 9(b) in relation to the right

of recipients

Provided that a competent authority may necessitate that

the provider observes the relevant laws which regulate conditions

of employment including those relating to collective agreements in

conformity with Community law

Provided further that in establishing whether a provider is

exercising his freedom to provide services within the meaning of

this article and Article 49 of the Treaty, or is an establishment case,

the competent authority shall assess and decide each case on its

individual merits and in conformity with the Community law and

rulings of the European Court of Justice.

(3) In exceptional cases only, and on a case by case basis,

without prejudice to sub-articles (1) and (2), a competent authority

may, in respect of a provider established in another Member State,

take measures in order to ensure the safety of services provided in

Malta. When taking such measures, a competent authority shall

follow the procedure established under the Fourth Schedule, and

ensure the fulfilment of the following conditions

(a) the national provisions in accordance with which the

measures are taken have not been subject to

Community harmonisation in the field of the safety of

services;

(b) the measures taken provide for a higher level of

protection of the recipient than would be the case in a

measure taken by the Member State of establishment

in accordance with its national provisions;

(c) the Member State of establishment has not taken any

measures or has taken measures which are insufficient

as compared with those requested by the competent

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authority as referred to in paragraphs 2 and 3 to the

Fourth Schedule;

(d) the measures are proportionate

Provided that where the competent authority becomes

aware of a serious specific act or circumstances relating to a

service activity that would cause serious damage to the health and

safety of persons, or the environment, in Malta or another Member

State, it shall inform the Member State of establishment, other

Member States that may be concerned or affected, and the

European Commission within the shortest time possible through the

Internal Market Information System.

In its function to provide information and assistance in

terms of article 4(c)

(a) a competent authority shall cooperate with the

designated entity in accordance with article 10(3) to

ensure that the following are easily accessible to

providers and recipients

(i) the requirements applicable in other Member

States relating to access to, and exercise of, the

relevant service activities, in particular those

relating to consumer protection;

(ii) the contact details of the competent authorities

enabling the latter to be contacted directly,

including the details of those authorities

responsible for matters concerning the exercise

of the relevant service activities;

(iii) the means of, and conditions for, accessing

public registers and databases on providers and

relevant services;

(iv) the means of redress which are generally

available in the event of dispute between the

competent authorities and the provider or the

recipient, or between a provider and a recipient

or between providers;

(v) the contact details of the associations or

organisations other than the competent

authorities, from which providers may obtain

practical assistance;

(vi) a list, updated at least annually, of the names and

commercial contact details of those providers

who are in possession of a valid licence issued

by the competent authority;

(b) at the provider’s and recipient’s request, the competent

authority shall provide assistance consisting of simple,

generic information of a non-legal nature, on the

interpretation and application of the requirements,

procedures and formalities needed for a provider or

recipient to have access to the relevant service activity

in Malta;

(c) in cooperation with the European Commission and

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other Member States, the competent authority shall

seek to assist recipients in Malta in obtaining

information on the protection given to recipients, as

well as the available means of redress, and the contact

details of associations providing consumer assistance

in other Member States.

(1) A competent authority shall require providers

established in Malta and falling under its area of competence to

keep it updated at all times with the information it identifies as

necessary and objectively justified for it to fulfil its supervisory

function of services in terms of its enabling Act and this Act.

(2) The competent authority shall exercise its supervisory

functions on providers established in Malta, and falling under its

area of competence, whether the service is provided in Malta or in

another Member State.

(3) In executing its supervisory functions, when a service is

being provided in another Member State by a provider established

in Malta, a competent authority shall assist the relevant competent

authority of that other Member State according to the procedure set

up in the Second Schedule. In doing so, the competent authority

shall not refrain from taking supervisory enforcement measures in

Malta on the grounds that a service has been provided or caused

damage in another Member State

Provided that a competent authority shall not be bound to

carry out checks and controls in the Member State where the

service is being provided.

(4) When a service is being provided in Malta, in the event of a

temporary movement by a provider established in another Member

State in terms of article 6

(a) the competent authority shall participate in the

supervision of the provider in accordance with the

procedure set up in the Second Schedule;

(b) when it has imposed requirements in terms of the

provisos to article 6(2), it shall assume responsibility

for the supervision of the provider in Malta in order to

ensure compliance with those requirements.

(5) A competent authority shall exchange requests and

information with the relevant competent authorities of another

Member State and the Commission through the Internal Market

Information System.

(6) Without prejudice to the limitations imposed by any other

law, a competent authority shall supply information to the relevant

competent authority of another Member State on disciplinary or

administrative actions, or criminal sanctions and decisions

concerning insolvency or bankruptcy involving fraud, which

directly concern a provider, in terms of the procedure contemplated

under the Third Schedule.

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PART V - RIGHTS OF RECIPIENTS

Recipients and potential recipients of a service shall not be

subjected to discriminatory requirements, including

(a) limitations to access to services in Malta through a

provider’s

general

conditions

that

contain

discriminatory provisions relating to the nationality or

place of residence of the recipient, provided that this

does not preclude the possibility for a provider to

provide for differences in the conditions of access

where those differences are directly justified by

objective criteria; or

(b) the granting of financial assistance by reason of the

fact that the provider is established in another Member

State or by reason of the location of the place at which

the service is provided; or

(c) an obligation to obtain authorisation from, or to make

a declaration to, a competent authority.

(1) Further to the right to information and assistance

referred to in articles 4 and 7, a provider established in Malta is

obliged to provide the information listed in the Fifth Schedule.

(2) For the purpose of subarticle (1), the body responsible for

consumer protection shall be responsible to monitor and enforce

compliance by the provider with the requirements listed under the

Fifth Schedule.

(3) For the purposes of subarticle (1) the body responsible to

provide, upon request, information in accordance with article

7(a)(i) to (vi) shall be the entity fulfilling the role of the European

Consumer Centre in Malta or any other entity as may be designated

by the Minister.

PART VI - MISCELLANEOUS

It shall be the function of the Minister, in consultation with

other Ministers, to take any additional necessary measures to this

Act, in order to ensure Malta’s fulfilment of its obligations under

the Directive, and to ensure compliance by all concerned with the

provisions of this Act.

(1) The Minister may, in consultation with other

Ministers, as the case may require, make regulations for the better

carrying out of any of the provisions of this Act.

(2) Without prejudice to the generality of the aforesaid power,

such regulations may in particular provide for

(a) the definition of functions of a point of single contact,

its administrative and operational set up and function

including its coordination with the relevant competent

authorities and other bodies established under other

laws in fulfilment of the functions assigned to it;

(b) establishing the sanctions or penalties to which an

offender under this Act may, on being found guilty,

become liable;

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(c) conformity by competent authorities with the

provisions of this Act;

(d) the designation of a body responsible to communicate

with the European Commission for the introduction of

any laws, regulations or administrative provisions as

referred to in the second proviso to article 5(4), and

the procedure to be followed to channel the

information to the European Commission;

(e) the designation of a national coordinator for the

Internal Market Information System;

(f) the designation of an Appeals Board to take

cognizance of complaints lodged by a provider against

a competent authority in default of a procedure

identified under its founding and enabling legislation;

(g) prescribing anything which may be required to be

prescribed by this Act.

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