RETIREMENT PENSIONS ACT

RETIREMENT PENSIONS

CHAPTER 514

RETIREMENT PENSIONS ACT

To regulate Retirement Schemes, Retirement Funds and Service

Providers related thereto.

1st January, 2015 *

ACT XVI of 2011, as amended by Act XX of 2013 and Act XXVI of 2018

and V of 2020.

PART I

Preliminary

The short title of this Act is the Retirement Pensions Act.

(Article 6)

LICENSABLE ACTIVITIES

1. Retirement Scheme Administration

-

administering the operation of a retirement scheme.

2. Custodian or Trustee Services

-

acting as custodian or trustee of a retirement scheme

-

acting as custodian or trustee of a retirement fund.

3. Investment Management

-

management of the assets of a retirement scheme

-

management of the assets of a retirement fund.

For the purposes of this paragraph, investment management means managing or

agreeing to manage assets belonging to a retirement scheme or retirement fund on

behalf of a retirement scheme or retirement fund if those assets consist of or include

one or more instruments or the arrangements for their management are such that the

person may manage those assets to invest in one or more instruments.

Reference in this Schedule to a retirement scheme or to a retirement fund shall

also include reference to a similar or equivalent arrangement established overseas

within the meaning of article 6.

(1) In this Act, unless the context otherwise requires -

"advertisement" means any form or medium of advertising or

promotional activity, other than a scheme document, scheme

particulars or retirement fund particulars and, without prejudice to

the generality of the foregoing, includes advertising in a

publication, the display of notices, signs, labels or show cards, by

means of letters, circulars, catalogues, price lists or other

documents, by the exhibition of pictures or photographic or

cinematographic films, by way of sound, television or other

broadcast, by the distribution of recordings or in any other manner,

the contents of which either invite persons, or contain material

calculated to induce persons to become or offer to become members

in a retirement scheme or investors in a retirement fund; and

references to the issue of an advertisement shall be construed

accordingly;

"beneficiary" means an individual receiving retirement benefits

in accordance with the provisions of a scheme document;

"competent authority" means the Malta Financial Services

Authority established by the Malta Financial Services Authority

Act;

"contributor" means -

(a) the individual who contributes solely or partly to the

retirement scheme; and, or

(b) the employer who contributes solely or partly to the

retirement scheme,

for the benefit of members of the retirement scheme;

"defined benefit retirement scheme" means a retirement scheme,

other than a defined contribution retirement scheme, which has as

its primary purpose that of providing for the payment of fixed or

determinable retirement benefits;

"defined contribution retirement scheme" means a retirement

scheme which has as its primary purpose that of providing for the

payment of retirement benefits which are established by reference

*See article 1(2) of the Act as originally enacted, and Legal Notices 4 of 2015 and 35

of 2015.

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to t he c ontributions paid i nto such retirement scheme, t he

accumulation of profits, gains and other income, after the deduction

of expenses and losses in relation thereto;

"directive" means a directive issued under article 41;

"document" or "documentation" includes information recorded in

any form and, in relation to information recorded otherwise than in

legible form, references to its production include references to

producing a copy of the information in legible form;

"EEA State" means a State which is a contracting party to the

agreement on the European Economic Area signed at Oporto on the

2nd May, 1992 as amended by the Protocol signed at Brussels on

the 17th March, 1993 and as amended by any subsequent acts;

"EIOPA" means the European Insurance and Occupational

Pensions Authority established in terms of article 1 of Regulation

(EU) No 1094/2010 of the European Parliament and of the Council

of 24 November, 2010;

"instrument" shall have the same meaning as assigned to it in the

Investment Services Act;

"investor" means the retirement scheme and, or overseas

retirement scheme investing in a retirement fund;

"key function" within a system of governance, means a capacity to

undertake practical tasks comprising the risk management function,

the internal audit function, and the actuarial function;

"licence" means a retirement scheme licence or a retirement fund

licence or a licence of a service provider providing any one or more

of the services listed in the Schedule, and "licensing" and

"licensed" shall be construed accordingly;

"licence holder" means a person or body corporate or

unincorporated body holding a licence under this Act;

"main administration" means the place, located in Malta, where the

main strategic decisions of a retirement scheme and a retirement fund

are made;

" M a l t a ’s i n t e r n a t i o n a l c o m m i t m e n t s " m e a n s M a l t a ’s

commitments, responsibilities and obligations arising out of

membership of the European Union and membership of, or affiliation

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

organisations or grouping of countries or out of any treaty,

convention or other international agreement, however called,

w h e t h e r b i l a t e r a l or m u l t i l a t e r a l , i n c l u d i n g Me m o r a n d a o f

Understanding, to which Malta is a party;

"member" means a person who is entitled or will become entitled

to retirement benefits in accordance with the provisions of a

scheme document;

"Member State" means a Member State of the European

Communities;

"the Minister" Minister responsible for the regulation of financial

services;

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"Occupational Pensions Directive"means Directive (EU) 2016/

2341 of the European Parliament and of the Council of 14 December

2016 on the activities and supervision of institutions for occupational

retirement provision (IORPs) (recast), as may be amended from time

to time, and includes any implementing measures, implementing

technical standards, regulatory technical standards and similar

measures that have been or may be issued thereunder;

"occupational retirement scheme" means a retirement scheme,

irrespective of its legal form, operating on a funded basis,

established separately from any sponsoring undertaking or trade,

for the purposes of providing retirement benefits in the context of

an occupational activity on the basis of an agreement or a contract

agreed

(a) individually or collectively between the employer or

employers and the employees or their respective

representatives; or

(b) with self-employed persons, individually or

collectively,

and which carries out activities directly arising therefrom;

"officer", in relation to a licence holder, includes a director, manager

or company secretary or any person effectively acting in such capacity,

whether formally appointed or not;

"overseas regulatory authority” means an authority in a country

or territory outside Malta which exercises any regulatory or

supervisory function in relation to financial services corresponding

to a function of the competent authority as defined in the Malta

Financial Services Authority Act;

"overseas retirement scheme" means a scheme or arrangement,

organized under the laws of a country outside Malta with the

principal purpose of providing retirement benefits;

"Pension Rules" means rules issued by the competent authority,

under various articles of this Act and under any regulations made

thereunder;

"personal retirement scheme" means a retirement scheme which

is not an occupational retirement scheme and to which

contributions are made for the benefit of an individual;

"prescribed" means prescribed by regulations made under this

Act;

"qualifying shareholding" means a direct or indirect holding in a

body corporate which represents ten per cent or more of the share

capital issued by such body, or of the voting rights attaching to

such share capital or which makes it possible to exercise a

significant influence over the management of the body corporate;

"retirement benefit" means benefits paid by reference to

reaching, or the expectation of reaching, retirement or, where they

are supplementary to those benefits and provided on an ancillary

basis, in the form of payments on death, disability, or cessation of

employment or in the form of support payments or services in case

of sickness, indigence or death;

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"retirement fund" means an arrangement established for the

principal purpose of holding and investing the contributions made

to one or more retirement schemes and, or to one or more overseas

retirement schemes;

"retirement scheme" means a scheme or arrangement as defined

in article 3;

"Retirement Scheme Administrator" means a person licensed to

provide the retirement scheme administration services referred to in

the Schedule;

"schedule of payments" shall be construed in accordance with

article 18;

"scheme document" means the written instrument evidencing or

establishing a retirement scheme and which stipulates the

retirement benefits and the conditions under which these are

granted;

"service" means any service falling within the Schedule, when

provided in relation to an instrument;

"service provider" means any person licensed under this Act to

provide any one or more of the services listed in the Schedule;

"Solvency II Directive" means Directive 2009/138/EC of the

European Parliament and of the Council of 25 November, 2009 on

the taking-up and pursuit of the business of Insurance and

Reinsurance (Solvency II) (recast), as may be amended from time to

time and includes any delegated acts and any technical standards that

have been, or may be issued thereunder;

"sponsoring undertaking" means any undertaking or other body,

regardless of whether it includes or consists of one or more legal or

natural persons, which acts as an employer or in a self-employed

capacity or any combination thereof and which offers an occupational

retirement scheme or pays contributions to an occupational retirement

scheme;

"subsidiary" has the same meaning as that assigned to the term

"subsidiary undertaking" under article 2 of the Companies Act;

"tax" means the tax imposed by the Income Tax Acts;

"the Income Tax Acts" means collectively the Income Tax Act

and the Income Tax Management Act.

(2) In this Act and in the Schedule and in any regulations

prescribed or Pension Rules issued thereunder, if there is any

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

shall prevail.

(3) Regulations made under this Act and any amendment or

revocation of such regulations, may be published in the English

language only.

(4) The objective of this Act is, in part, to implement the

provisions of the Occupational Pensions Directive and relative

European Union measures, and it shall be interpreted and applied

accordingly.

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PART II

Licensing and Recognition Requirements

Licensing of Retirement Schemes

(1) A retirement scheme means a scheme or arrangement

with the principal purpose of providing retirement benefits.

(2) A scheme or arrangement shall not constitute a retirement

scheme under this Act if it provides for

(a) the payment of retirement benefits to five or fewer

members; or

(b) the commencement of payment of retirement benefits

to a member on a date that is earlier than that on which

such member has attained the age of fifty, or later than

that specified in Pension Rules, except in those cases

where the scheme or arrangement provides that

(i) the payment is made by reason of the disability

or death of a member; or

(ii) the payment, in the case of an occupational

retirement scheme, is made to the member as may

be determined by means of Pension Rules issued

under the Act, in the event that the member is no

longer employed by the employer

Provided that a scheme or arrangement described in paragraph

(a) may, by written notice to the competent authority, apply to be

considered as a scheme for the purposes of this Act, and such a scheme

shall comply with the provisions of Articles 32 to 35 of the

Occupational Pensions Directive.

(3) A retirement scheme may be an occupational retirement

scheme or a personal retirement scheme.

(1) Subject to the provisions of sub-article (6), no

retirement scheme shall carry on any activity for the provision of

retirement benefits in or from within Malta, unless the main

administration of such retirement scheme is located in Malta and is

duly licensed under this Act.

(2) Subject to the provisions of sub-article (6), no retirement

scheme formed in accordance with or existing under the laws of

Malta shall carry on any activity for the provision of retirement

benefits in or from within a country, territory or other place outside

Malta unless duly licensed under this Act.

(3) Subject to the provisions of sub-article (6), no person shall

accept money or other consideration from a contributor with

respect to a retirement scheme carrying on any activity for the

provision of retirement benefits in or from within Malta unless the

main administration of such retirement scheme is located in Malta and

is duly licensed under this Act.

(4) The competent authority may by notice in writing to any

person determine that for the purposes of this Act, a scheme or

other arrangement is a retirement scheme -

(a) located in Malta; or

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(b) carrying on any activity in or from within Malta,

and subject to any appeal under article 44 with respect to such

person, the determination by the competent authority shall be

conclusive for all purposes of this Act.

(5) For the purposes of sub-article (4), "carrying on any

activity in or from within Malta" includes but shall not be limited

to, marketing, advertising or otherwise promoting, as may be

further stipulated in Pension Rules.

(6) No retirement scheme shall be precluded by the provisions

of sub-articles (1) to (3) from taking such steps as may be

necessary for the incorporation or, as the case may be, the

establishment of the retirement scheme or from taking such steps as

may be necessary for securing the licensing of the retirement

scheme by the competent authority.

(7) A retirement scheme licensed under this Act shall not be

subject to any licensing requirements under the Investment

Services Act.

Licensing of Retirement Funds

(1) Subject to the provisions of sub-article (5), no

retirement fund shall carry on any activity in or from within Malta

in relation to a retirement scheme or an overseas retirement scheme

unless the main administration of such retirement fund is located in

Malta and is duly licensed under this Act.

(2) Subject to the provisions of sub-article (5), no retirement

fund formed in accordance with or existing under the laws of Malta

shall carry on any activity in relation to a retirement scheme and, or

overseas retirement scheme, in or from within a country, territory

or other place outside Malta, unless duly licensed under this Act.

(3) The competent authority may by notice in writing to any

person determine that, for the purposes of this Act, a fund is a

retirement fund

(a) located in Malta; or

(b) carrying on any activity in or from within Malta,

and subject to any appeal under article 44 with respect to such

person, the determination by the competent authority shall be

conclusive for all purposes of this Act.

(4) For the purposes of sub-article (3), "carrying on any

activity in or from within Malta" includes but shall not be limited

to, marketing, advertising or otherwise promoting, as may be

further stipulated in Pension Rules.

(5) No retirement fund shall be precluded by the provisions of

sub-articles (1) and (2) from taking such steps as may be necessary

for the incorporation or, as the case may be, the establishment of

the retirement fund or from taking such steps as may be necessary

for securing the licensing of the retirement fund by the competent

authority.

(6)

A retirement fund licensed under this Act shall not be

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subject to any licensing requirements under the Investment

Services Act.

Licensing of Service Providers

(1) No person shall provide or hold itself out as providing

any one or more of the services listed in the Schedule in or from

within Malta to a retirement scheme or retirement fund or to a

similar or equivalent arrangement established overseas, unless it is

duly licensed under this Act.

(2) No body corporate, unincorporated body or association

formed in accordance with or existing under the laws of Malta,

shall provide or hold itself out as providing a service in or from

within a country, territory or other place outside Malta unless duly

licensed under this Act.

(3) The competent authority may by notice in writing to any

person determine that a service falls within the Schedule when

provided in relation to an instrument and, subject to any appeal

under article 44, with respect to such person, the determination by

the competent authority, shall be conclusive for all purposes of this

Act.

Recognition of Service Providers

Repealed by Act V.2020.64.

PART III

Application, Grant, Cancellation and Suspension of Licences

An application for a licence shall be made in writing in such

form and manner required by the competent authority and shall -

(a) contain or be accompanied by such information and

particulars as the competent authority may require by

means of Pension Rules;

(b) be verified in the manner and to the extent required by

the competent authority as may be established by means

of Pension Rules.

(1) The competent authority may grant a licence applied for

under this Act.

(2) The competent authority shall not grant a licence applied for

under this Act, unless it is satisfied that -

(a) in the case of a retirement scheme

(i) it is constituted and structured in line with any

Pension Rules, as applicable;

(iA) the activities of the retirement scheme are limited

to retirement benefit related operations and

activities arising therefrom;

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(ii) it submits evidence that it shall be in a position to

comply with and observe the provisions of this

Act and any regulations or Pension Rules made

thereunder;

(iii) the retirement scheme and Retirement Scheme

Administrator are fit and proper to carry out the

functions required of them in connection with

the retirement scheme;

(iv) there is a scheme document which contains

terms and conditions in line with any Pension

Rules;

(v) the name of the retirement scheme is one which,

in the opinion of the Authority, is not

misleading;

(vi) any aspect of, or related to, the application does

not raise any regulatory concerns; and

(aA) in addition to the requirements in paragraph (a), in the

case of an occupational retirement scheme

(i)

the Retirement Scheme Administrator shows

evidence that it will be in a position to comply

with the system of governance provided for in

article 13A;

(ii)

the Retirement Scheme Administrator shows

evidence that, where the sponsoring undertaking

guarantees the payment of the retirement

benefits, the employer is committed to regular

financing;

(b) in the case of a retirement fund

(i) it is constituted and structured in line with any

Pension Rules, as applicable;

(ii) the retirement fund and any person, by whatever

name designated, responsible for the operation,

administration, and management of the

retirement fund, will comply with and observe

the provisions of this Act and any regulations or

Pension Rules made thereunder;

(iii) the retirement fund and any person responsible

for

the

operation,

administration

and

management of the retirement fund, is a fit and

proper person to carry out the functions required

of it in connection with the retirement fund;

(iv) it has a constitutional document which contains

terms and conditions in line with any Pension

Rules;

(v) the name of the retirement fund is one which, in

the opinion of the competent authority, is not

misleading;

(vi) any aspect of, or related to, the application does

not raise any regulatory concerns;

(c) in the case of a service provider

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(i)

the applicant is a fit and proper person to

provide the services concerned, and

(ii) the applicant will comply with and observe the

provisions of this Act and any regulations or

Pension Rules made thereunder;

(iii) any aspect of, or related to, the application does

not raise any regulatory concerns.

(3) Without prejudice to article 38, a licence granted by the

competent authority shall be subject to the applicable Pension Rules

and to such conditions as the competent authority may from time to

time deem appropriate.

(4) When carrying out its functions under the Act, the competent

authority shall, in particular, have regard to

(a) the protection of beneficiaries, members, and

investors;

(b) the promotion of competition and choice; and

(c) the reputation and suitability of the applicant and in

the case of the retirement scheme and, or retirement

fund, the Retirement Scheme Administrator and, or the

persons responsible thereof, and all other parties

connected with the retirement scheme and, or the

retirement fund as the case may be.

(5)

Every licence shall specify, as the case may be

(a) the nature of the retirement scheme to which the

licence relates;

(b) any service a person has been licensed to provide.

(6)

Repealed by Act V.2020.67.

(7) Without prejudice to the generality of sub-article (3), the

Pension Rules to which the competent authority shall subject a licence,

may be made applicable to -

(a)

all licences granted;

(b)

certain categories of licences;

(c)

all licences granted to certain categories of holders;

(d)

all licences in relation to particular services or

retirement schemes or retirement funds, as the case

may be.

(8) Within six months from the date of the submission of a

properly completed application form together with the requisite

documentation, the competent authority shall inform an applicant

in writing of its decision whether or not to grant a licence; and in the

case of a refusal it shall inform the applicant in writing of the reasons

for the refusal.

(9) Any requirement in this Act that a person be a fit and

proper person to carry out certain activities or functions shall be

interpreted as a requirement not only that such person be a fit and

proper person to carry out such activities or functions, but also that

any qualifying shareholder or director or officer of such person, or

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any person responsible for such activities or functions be a fit and

proper person to carry out such activities or functions.

(10) (a) Where close links exist between an applicant and any

other person the competent authority shall

(i)

only grant a licence if it considers that such

close links do not prevent it from exercising

effectively its supervisory functions; and

(ii) refuse to grant a licence if it considers that the

laws, regulations or administrative provisions of

any country outside Malta governing one or

more persons with whom the applicant has close

links, or their enforcement, prevent the effective

exercise of its supervisory functions.

(b) The competent authority may from time to time, by

means of Pension Rules issued under this Act, define

the circumstances in which "close links" are to

beregarded as existing between any two or more

persons.

(11) The competent authority shall establish a register of all

holders of a licence. The register, which shall be publicly

available, shall also indicate the services and, or activities

in relation to which each licence was issued. The register

shall be updated on a regular basis. In the case of

cross-border activities carried out in terms of the

Occupational Pensions Directive, the register shall

also indicate the Member States or the EEA States in

which the relevant licence holder is operating, and that

information shall be communicated to EIOPA.

(1) Without prejudice to any other provision of this Act

and of any regulations or Pension Rules made thereunder, the

competent authority may at any time cancel or suspend a licence in

accordance with the provisions of this Act.

(2) In the case of a retirement scheme, the competent authority

may cancel or suspend a licence

(a) if it considers that the retirement scheme or the

Retirement Scheme Administrator, as the case may be,

is not a fit and proper person to carry out the functions

required of it in connection with the retirement

scheme; or

(b) if it considers that the retirement scheme or Retirement

Scheme Administrator, as the case may be, does not

comply with the provisions of this Act or of any

regulations made or Pension Rules issued thereunder,

or that there has been a contravention of any such

provisions, or an obligation or condition to which the

retirement scheme is subject by virtue of or under this

Act has not been satisfied or complied with; or

(c) if information has been furnished to the competent

authority by or on behalf of or in relation to the

retirement scheme which is false, inaccurate or

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misleading in any material particular, or if the Retirement

Scheme Administrator has concealed, or conceals from,

or fails to notify to the competent authority any

document or information or change therein which it

was the Retirement Scheme Administrator’s duty to

reveal or to notify under this Act and any regulations

made thereunder or any Pension Rules; or

(d) if the retirement scheme or the Retirement Scheme

Administrator, as the case may be, has not commenced

to provide the activities it has been licensed to carry on

within the time provided for in the licence or if no such

time is specified, within twelve months of its issue, or has

ceased to carry on such activities; or

(e) if it considers it desirable to cancel or suspend the

licence for the protection of beneficiaries, members, or

investors; or

(f) at the request of the retirement scheme or Retirement

Scheme Administrator, as the case may be; or

(g) in any of the circumstances under which the competent

authority would have been precluded from issuing the

licence under this Act or where under this Act it would

have been entitled to refuse to grant such a licence.

(3) In the case of a retirement fund, the competent authority

may cancel or suspend a licence

(a) if it considers that the retirement fund or any person,

by whatever name designated, responsible for the

operation, administration and management of the fund,

as the case may be, is not a fit and proper person to

carry out the functions required of it in connection

with the retirement fund;

(b) if it considers that the retirement fund to which the

licence refers and, or any person, by whatever name

designated,

responsible

for

the

operation,

administration and management of the retirement fund,

as the case may be, does not comply with the

provisions of this Act or of any regulations made or

Pension Rules issued thereunder, or that there has been

a contravention of any such provisions, or an

obligation or condition to which the retirement fund is

subject by virtue of or under this Act, has not been

satisfied or complied with; or

(c) if information has been furnished to the competent

authority by or on behalf of or in relation to the

retirement fund which is false, inaccurate or

misleading; or

(d) if the retirement fund or any person, by whatever name

designated,

responsible

for

the

operation,

administration and management of the retirement fund,

as the case may be, has not commenced to provide the

activities within the time provided for in the licence or if

no such time is specified, within twelve months of its

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issue, or has ceased to carry on such activities; or

(e) if it considers it desirable to cancel or suspend the

licence for the protection of beneficiaries, members or

investors; or

(f) at the request of the retirement fund or any person

responsible for the operation, administration and

management of the fund as the case may be; or

(g) in any of the circumstances under which the competent

authority would have been precluded from issuing the

licence under this Act or where under this Act it would

have been entitled to refuse to grant such a licence.

(4) In the case of a service provider, the competent authority

may cancel or suspend a licence

(a) if it considers that the service provider is not a fit and

proper person to provide any service he is licensed to

provide; or

(b) if it considers that the service provider thereof does

not fulfil the requirements of, or has contravened, any

of the provisions of this Act or of any regulations

made or Pension Rules issued thereunder, or has failed

to satisfy or comply with any obligation or condition

to which he is subject by virtue of or under this Act; or

(c) if the competent authority has been furnished by or on

behalf of the service provider with information which

is false, inaccurate or misleading; or

(d) if the service provider has not commenced to provide

the service he has been licensed to provide within the

time provided for in the licence or if no such time is

specified, within twelve months of its issue, or has ceased

to provide such service; or

(e) if it considers it desirable to cancel or suspend the

licence for the protection of beneficiaries, members or

investors; or

(f) at the request of the service provider; or

(g) in any of the circumstances under which the competent

authority would have been precluded from issuing the

licence, or where under this Act it would have been

entitled to refuse to grant such a licence and, or

recognition; or

(h) if the service provider thereof has obtained the licence

and, or recognition by making false statements or by

any other irregular means.

(1) Where the competent authority proposes -

(a) to vary any condition to which a licence is subject or to

impose a condition thereon; or

(b) to refuse an application for a licence or to cancel or to

suspend a licence,

it shall give the applicant or, as the case may be, to the licence

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holder, or in the case of a retirement scheme to the Retirement

Scheme Administrator, or in the case of a retirement fund to any

person, by whatever name designated, responsible for the

operation, administration and management of the retirement fund,

as the case may be, a notice in writing of its intention to do so, such

notice setting out detailed reasons for its proposed action.

(2) Every notice given under sub-article (1) shall state that the

recipient of the notice may, within such reasonable period after the

service thereof as may be stated in the notice (being a period of not

less than forty-eight hours and not longer than thirty days), make

representations in writing to the competent authority giving reasons

why the proposed decision should not be taken, and the competent

authority shall consider any representation so made before arriving

at a final decision.

(3) The competent authority shall notify its final decision in

writing to any of the persons to whom notice is to be given under

sub-article (1).

(4) The competent authority shall notify EIOPA of any restriction,

suspension or cancellation of a licence of an occupational retirement

scheme under article 10.

PART IV

Governance

A retirement scheme shall have a Retirement Scheme

Administrator, who shall carry out such duties, functions and

responsibilities as may be specified and who shall be subject to any

requirements, as may be stipulated by Pension Rules.

(1) The Retirement Scheme Administrator shall act in the

best interests of the retirement scheme, its members and beneficiaries,

and may not use the assets of the retirement scheme for its own or

other purposes.

(2) Any person, by whatever name designated, responsible for

the operation, administration and management of the retirement

fund, shall act in the best interests of the retirement fund and may

not use the assets of the retirement fund for its own or other

purposes.

(1)

A Retirement Scheme Administrator shall be

required to have in place an effective system of governance which

provides for sound and prudent management of its activities in

connection with the overall operation and administration of an

occupational retirement scheme. The system of governance

requirements shall be laid down in Pension Rules.

(2)

A Retirement Scheme Administrator shall

(a)

ensure that persons carrying out a key function,

and where applicable, persons or entities to which a key

function has been outsourced, are fit and proper, in accordance

with criteria set out in the Pension Rules;

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(b)

have in place the following key functions

(i)

an effective risk management system,

including a risk management function;

(ii)

an effective internal audit function; and

(iii)

where applicable, an effective actuarial

function;

(c)

as part of the risk management system, conduct its

own risk assessment and the risk assessment of the occupational

retirement scheme;

(d)

have in place an effective internal control system;

(e)

if it outsources any of its functions or activities,

remain fully responsible for discharging all of its obligations

under this Act and the regulations and Pension Rules issued

thereunder.

(3)

The systems and functions referred to in sub-article (2) shall

be determined by Pension Rules.

(4) The system of governance shall be proportionate to the nature,

scale and complexity of the operations of the occupational retirement

scheme.

(1) In the discharge of its duties, functions and

responsibilities, and without prejudice to the liability for damages

under any other law, the Retirement Scheme Administrator and any

person, by whatever name designated, responsible for the

operation, administration and management of the retirement fund,

including any service provider, shall be liable for any loss or

damage suffered as a result of fraud, willful default or negligence

on its part, including the unjustifiable failure to perform in whole

or in part its obligations arising under this Act, the terms and

conditions of the agreement appointing it, the deed or other

instrument establishing or regulating the retirement scheme or

retirement fund, the conditions of licensing which may be required

by the competent authority, and such other requirements as may be

laid down by the latter from time to time.

(2)

The liability of -

(a) the Retirement Scheme Administrator and any person,

by whatever name designated, responsible for the

operation, administration and management of the

retirement fund; and, or

(b) the service provider,

shall not be diminished if it has entrusted or delegated to a third

party some or all of its duties, functions and responsibilities.

A Retirement Scheme Administrator, or a retirement fund,

RETIREMENT PENSIONS

as the case may be, may delegate one or more of its duties to a

service provider or similar entity, subject to any applicable Pension

Rules.

(1) Every retirement scheme or retirement fund shall

appoint an auditor to carry out the duties as may be specified by

Pension Rules.

(1A) Every retirement scheme which provides cover against

biometric risks or guarantees an investment performance or a given

level of benefits, shall also appoint an actuary to carry out the duties,

as may be specified by regulations and Pension Rules..

(2) Every auditor and actuary of a licence holder shall have the

right to demand such information or explanations as he deems

necessary in the performance of his duties from any officer or

employee of, or any person under an appointment from that licence

holder.

PART V

Other Requirements

RETIREMENT SCHEMES

(1) The assets of a retirement scheme shall be used for the

exclusive purpose of providing retirement benefits to the members

and beneficiaries of the retirement scheme and of defraying the

expenses as stipulated in the scheme document and as are allowable

in terms of Pension Rules.

(2) A retirement scheme shall comply with such requirements

in terms of Pension Rules, with regards to the investment,

management, accounting and valuation of its assets and the extent

to which it may borrow money.

A Retirement Scheme Administrator of an occupational

retirement scheme shall ensure the maintenance and, from time to

time, the revision of a schedule (hereinafter and in article 19

referred to as a "schedule of payments"), showing -

(a) the rates of contributions payable towards the retirement

scheme, as may be prescribed;

(b) the dates on or before which such contributions are to

be paid; and

(c) such other matters as may be prescribed.

(1) Any amounts payable by or on behalf of the

contributor to an occupational retirement scheme in accordance

with the schedule of payments shall be paid on or before the due

date.

(2) Any employer of a scheme obliged to contribute solely or

partly to an occupational retirement scheme who fails to effect such

payment on or before the due date specified in the schedule of

payments shall be guilty of an offence.

(3) A Retirement Scheme Administrator and any actuary of an

occupational retirement scheme shall, where any amounts payable

RETIREMENT PENSIONS

by or on behalf of the employer of the retirement scheme in

accordance with the schedule of payments have not been paid on or

before the due date

(a) give notice of that fact to the members and the

competent authority at the earliest opportunity; and

(b) take all such measures as may be necessary or

appropriate to make the defaulting employer rectify

the situation.

(4) A Retirement Scheme Administrator of an occupational

retirement scheme shall notify the competent authority in writing of

any such measures that have been taken or are being taken in terms

of this article, at the earliest opportunity.

(5) The provisions of this article shall be without prejudice to

the right of the Retirement Scheme Administrator to recover the

amount remaining unpaid by the employer as debts which are

certain, liquidated and due under Title III of Part I of Book Second

of the Code of Organization and Civil Procedure.

Every retirement scheme and Retirement Scheme

Administrator shall forward to the competent authority a copy of its

audited financial statements within the periods stipulated in the

Pension Rules and shall comply with any reporting requirements, as

may be required by Pension Rules.

(1) The retirement scheme and Retirement Scheme

Administrator shall comply with any Pension Rules regarding the

submission to the competent authority and the publication and

availability to members and beneficiaries of a document, known as

"scheme particulars", containing information about the retirement

scheme.

(2) A retirement scheme and Retirement Scheme Administrator

shall comply with any other disclosure requirements as may be

required by Pension Rules, including the type of documents to be

issued, the form and content of any document that may be required

and to whom such documents are required to be provided.

The scheme document shall be binding on those members

and beneficiaries as may be provided for in regulations or Pension

Rules made for the purpose of this article.

(1) A scheme or arrangement which is operating or

purporting to operate as a retirement scheme which is not licensed

in accordance with this Act shall be unenforceable against any

contributor and such contributor shall be entitled to recover any

money paid, or other property transferred by him under the

retirement scheme.

(2) In cases falling under sub-article (1), where such property

cannot be so recovered, such contributor shall be entitled to have it

replaced by its value at the time of the agreement, together with

compensation for any loss sustained by him in consequence of such

payment or transfer or the non-recovery of the property transferred

and any profits that may have accrued as a result of that money or

other property having been transferred by him.

RETIREMENT PENSIONS

(3) The provisions of sub-articles (1) and (2) shall be without

prejudice to any liability which may arise under any other law.

(4) The provisions of sub-articles (1) and (2) shall not apply to

a retirement scheme which is specifically exempted from licensing

under this Act in terms of regulations made under this Act.

(1) The creditors of a contributor may not enforce their

rights over the contributor’s interest in the retirement scheme; nor

may such creditors attach or subject such interest to any

precautionary or executive warrant

Provided that nothing in this sub-article shall be deemed to

deprive any creditor of such contributor of any rights granted to a

creditor under article 1144 of the Civil Code.

(2) Except as may be prescribed under this Act, every

agreement that is made by a contributor to transfer, dispose of,

pledge or otherwise charge his interest in the retirement scheme

shall be void.

Subject to any regulations or Pension Rules made for the

purpose of this article, a retirement scheme shall distribute benefits

to members and, or beneficiaries in the amounts and at the times

specified in the applicable scheme document.

Quantitative Requirements

(1) Every retirement scheme shall

(a) establish at all times an adequate amount of liabilities

corresponding to the financial commitments which

arise out of their portfolio of existing pension

contracts; and

(b) where it provides cover against biometric risks or

guarantees either an investment performance or a

given level of benefits, establish sufficient technical

provisions.

(2) The manner in which technical provisions shall apply to

retirement schemes licensed under the Act may be determined by

regulations prescribed for this purpose.

Retirement Funds

(1) The assets of the retirement fund shall be used for the

exclusive purpose of providing retirement benefits to the

beneficiaries of the retirement schemes or the overseas retirement

schemes which have invested in such retirement fund, and of

defraying the expenses as are allowable under this Act of such

retirement scheme, or the bona fide expenses of the overseas

retirement scheme, as applicable.

(2) A retirement fund shall comply with such requirements in

terms of Pension Rules, with regard to the investment,

management, accounting and valuation of its assets and the extent

to which it may borrow money.

RETIREMENT PENSIONS

A retirement fund or any person, by whatever name

designated, responsible for the operation, administration and

management of the retirement fund, as the case may be, and comply

with any reporting requirements such as annual accounts, reports,

certificates and information as may be required by Pension Rules.

A retirement fund shall comply with any disclosure

requirements that may be established by Pension Rules, including

the type of documents to be issued, the form and content of any

document that may be required and to whom such documents are

required to be provided.

General

Every licence holder under this Act shall pay to the

competent authority such periodic fees, and within such time, as

may from time to time be prescribed.

A licence holder or any person having responsibility for the

operation, administration and management of a retirement scheme

or retirement fund shall provide the competent authority with

particulars of any changes in the information provided under this

Act, and any regulations made thereunder, or any Pension Rules, as

soon as such person or its delegate becomes aware of such changes

and shall notify the competent authority, on a continuous basis, of

any changes or circumstances which give rise to the existence of

close links within the meaning of article 9.

(1) Notwithstanding anything contained in any other law, no

person shall acquire, directly or indirectly, a qualifying shareholding

in a service provider or increase such qualifying shareholding so

that the proportion of the voting rights or of the share capital held

by him in the service provider reaches or exceeds 20 per cent, 30

per cent or 50 per cent, or so that the service provider becomes the

subsidiary of such person, unless such person has served on the

competent authority a written notice stating that he intends to

acquire or increase such shareholding, and -

(a) the competent authority has, before the end of the

period of three months beginning with the service of

that notice, notified him in writing that there is no

objection to his acquiring or increasing such

shareholding; or

(b) that period has elapsed without the competent

authority having served on him a notice of objection;

or

(c) the competent authority has, before the end of the said

period of three months, served a notice of objection

which has subsequently been withdrawn, cancelled or

quashed for any reason

Provided that, the acquisition or increase of the qualifying

shareholding takes place within one year following the event

mentioned in paragraph (a), (b) or (c), as the case may be

Provided further, that in the case envisaged in the aforesaid

paragraph (c), the aforesaid period of one year shall commence to

run from the date that the person concerned has been notified of the

RETIREMENT PENSIONS

withdrawal, cancellation or quashing of the notice of objection, as

the case may be.

(2) A notice served on the competent authority under sub-

article (1) shall contain such information as the competent

authority may direct and the competent authority may, after

receiving such a notice from any person, by notice in writing

require him to provide such additional information or documents as

the competent authority may reasonably require for deciding

whether to serve a notice of objection.

(3) Where additional information or documents are required

from any person by a notice under sub-article (2), the time between

the giving of the notice and the receipt of the information or

documents shall be added to the period mentioned in sub-article

(1)(a).

(4) Every notice of objection mentioned in sub-article (1)(c)

shall state the reasons for such objection and shall state that the

recipient of the notice may, within such reasonable period after the

service thereof as may be stated in the notice (being a period of not

less than forty-eight hours and not longer than thirty days), make

representations in writing to the competent authority giving reasons

why the notice of objection should be withdrawn; and the

competent authority shall consider any representations so made

before arriving at a final decision.

(5) The competent authority shall notify its final decision in

writing to the person who makes representations in writing under

sub-article (4), within thirty days of receipt of representations as

provided for in the said sub-article (4).

(6) Any person who proposes to sell or dispose, directly or

indirectly, of a qualifying shareholding in a service provider or to

reduce his qualifying shareholding so that the proportion of the

voting rights or of the share capital held by him in the service

provider would fall below 20 per cent, 30 per cent or 50 per cent, or

so that the service provider would cease to be his subsidiary, must

inform the competent authority in writing stating his intention to

sell, dispose of or reduce his shareholding and stating the size of

his shareholding following such sale, disposal or reduction.

(7) Immediately on becoming aware of any proposed or actual

acquisition or disposal of part or all of a shareholding in its share

capital in any of the circumstances dealt with in this article, a

service provider shall inform the competent authority in writing.

(8) Where the influence exercised by a person acquiring or

proposing to acquire a part of the share capital is likely to be

prejudicial to the sound and prudent management of a service

provider, the competent authority may issue a notice of objection,

and exercise any of the powers assigned to it under this Act,

including the power to issue directives, as it may deem reasonable

and appropriate in the circumstances.

(9) A copy of any notice served on the person concerned in

terms of sub-article (8) shall be served on the company to whose

shares it relates.

RETIREMENT PENSIONS

(10) Without prejudice to the provisions of articles 46 and 48,

where a shareholding in a service provider is acquired despite the

objection of the competent authority, the competent authority shall

have the power to make an order

(a) restraining such person or service provider from

taking, or continuing with such action;

(b) declaring such action to be null and void;

(c) requiring such person or service provider to take such

steps, as may be necessary, to restore the position

existing immediately before the action was taken;

(d) restraining such person or service provider from

exercising any rights which such action would, if

lawful, have conferred upon them, including the right

to receive any payment or to exercise any voting rights

attached to the shares acquired;

(e) restraining such person or service provider from taking

any similar action or any other action within the

categories set out in sub-articles (1) and (6).

(11) If the acquirer of the qualifying holding referred to in this

article is -

(a) a person holding a licence or an equivalent

authorisation from an overseas regulatory authority, or

(b) the parent undertaking of a person referred to in

paragraph (a), or

(c) any person controlling a person referred to in

paragraph (a),

and if, as a result of that acquisition, the service provider in which

the acquirer proposes to acquire a holding would become the

acquirer’s subsidiary or come under his control, the assessment of

the acquisition by the competent authority must be the subject of

prior consultation with the overseas regulatory authority taking into

account Malta’s international commitments.

(12) The requirements set out in this article shall apply to a

retirement scheme set up as an investment company with variable

share capital ("SICAV") under the Companies Act.

A retirement scheme or retirement fund shall comply with

any requirements as established from time to time by the

Commissioner for Revenue.

No person, other than licence holders, may issue or causeto

be issued an advertisement in connection with a retirementscheme

or retirement fund in or from within Malta. The competent authority

may, by Pension Rules made for the purposes of this article,

determine the form and content of such advertisements andthe

manner in which any promotional activity in connection with

aretirement scheme or retirement fund shall be carried out or

causedto be carried out.

RETIREMENT PENSIONS

Reporting Duties

(1) Every auditor or actuary of a licence holder shall have

the duty to report immediately to the competent authority any fact or

decision concerning that licence holder of which it becomes aware in

its capacity as auditor or as actuary of such licence holder which

relates to any matter which may be prescribed or is likely to bring or

has brought about the following

(a) a serious qualification, or refusal of the auditor’s or

actuary’s report on the accounts of such licence holder;

(b) a material breach of the provisions of this Act and

regulations or any Pension Rules which lay down the

legal or regulatory requirements applicable to a license

holder in or under this Act; or

(c) a grave impairment of the licence holder’s ability to meet

the current or future liabilities attributable to it; or

(d) negatively and materially affects the interests of

members and beneficiaries; or

(e) relates to any other matter which may be prescribed.

(2) An auditor or an actuary of a licence holder shall report to

the competent authority any facts or decisions of which he becomes

aware of in the course of carrying out his duties, which relate to or

have a serious adverse effect, upon the members or beneficiaries, as

specified in sub-article (1), of any person having close links with

such licence holder within the meaning of article 9, of which he

becomes aware in his capacity as auditor or actuary of the licence

holder or of the person having such close links.

(3) The matters which may be prescribed for the purpose of

sub-article (1)(e) may include matters related to persons or entities

other than a retirement scheme or retirement fund, including but

not limited to any person providing any one or more of the services

listed in the Schedule.

(3A) Without prejudice to any provision contained in this Act, the

competent authority may request the auditor or the actuary, as the case

may be, to provide it with such information and documentation

relating to any fact or decision as specified in sub-articles (1) or (2)

concerning the licence holder.

(4) The competent authority may require a licence holder to

change its appointed auditor or actuary where, in the competent

authority’s opinion, such auditor or actuary is considered unfit for

this appointment, at any time during his term of office.

(1) If a retirement scheme or Retirement Scheme

Administrator or retirement fund or any person, by whatever name

designated, responsible for the operation, administration and

management of the retirement fund, or any service provider of any

retirement scheme or retirement fund knows, believes or otherwise

suspects that any duty relevant to the operation of the retirement

scheme or retirement fund imposed under this or any other law on

any person acting in connection with the retirement scheme or

retirement fund has not been or is not being complied with, he must

RETIREMENT PENSIONS

immediately give a written report on the matter to the competent

(2) The competent authority may by directive disqualify a

person from its position if it appears to the competent authority that

the person has failed to comply with sub-article (1).

PART VI

Power to make Regulations

General Provisions

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

authority, may make regulations to give better effect to the

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

the foregoing may, by such regulations, in particular, do any of the

(a) amend any of the definitions contained in article 2 and

amend the Schedule;

(b) regulate retirement schemes and retirement funds, as

well as the services provided and activities carried on

in conjunction therewith or in relation thereto and

provide for any matter he may deem expedient and

may in particular grant rights to the members,

beneficiaries and investors in respect of such

retirement schemes and funds, as the case may be, and

regulate the exercise thereof; provide for and regulate

the payment of such fees and other charges as may be

prescribed; regulate any fees and, or any other charges

imposed directly or indirectly on members,

beneficiaries or investors; provide for the safekeeping

and oversight duties, and custody of the property of

retirement schemes and retirement funds; provide for

the protection of the property of the retirement scheme

or retirement fund in the event of the insolvency of the

custodian as may be applicable, and for the purpose of

this paragraph "custodian" shall include a sub-

custodian; provide for and regulate the appointment of

employee representation in the governance of

retirement schemes; regulate the appointment and, or

removal of a Retirement Scheme Administrator or any

other person, by whatever name designated,

responsible for the operation, administration and

management of the retirement scheme and, or

retirement fund; establish the nature and classification

of retirement schemes and funds and prescribe

conditions pertaining thereto; regulate the dissolution

and, or liquidation of retirement schemes and

retirement funds;

(c) establish or make other arrangements for the

compensation of members and, or beneficiaries or

investors in cases where a retirement scheme or

retirement fund is unable to satisfy claims in respect of

any liability incurred by it; regulate the management

RETIREMENT PENSIONS

and the financing of any such arrangements and the

contributions and levies to be paid thereto; set the

minimum and maximum levels of compensation

payable thereunder and may under such arrangements

distinguish between different classes of investors,

members or beneficiaries and exclude certain classes

from compensation and to make provision for the

regulation of and for other aspects related to such

arrangements and may moreover provide that such

arrangements as may be prescribed shall have a legal

personality distinct from that of the contributors

thereto and of the competent authority and provide for

the judicial and legal representation thereof; and such

arrangements shall be exempt from the payment of

income tax as from the date of establishment of such

retirement schemes or retirement funds;

(d) prescribe the circumstances when and the conditions

under which a scheme document becomes binding on

members and beneficiaries;

(e) define the criteria for determining whether a holding is

an indirect holding for the purposes of determining

whether a qualifying shareholding exists;

(f) exempt any person, retirement scheme and, or

retirement fund (including such class or type or

description thereof as may be prescribed) or other

licence holders or advertisement from any one or more

of the provisions of this Act and subject to such

conditions or other requirements, including other

forms of authorisation and notification procedures, as

may be prescribed;

(g) regulate the segregation of the assets of retirement

schemes and retirement funds and the provision of any

matter consequential, incidental to or connected

therewith;

(h) establish the circumstances when ring fencing

measures may be applied and the measures and

conditions applicable to retirement schemes and, or

retirement funds in this regard;

(ha) regulate the restriction or prohibition of the free

disposal of the assets of a retirement scheme falling

within such description as may be prescribed, when in

particular

(i)

that retirement scheme has failed to establish

sufficient technical provisions in respect of the

entire business or has insufficient assets to cover

the technical provisions;

(ii) that retirement scheme has failed to hold any

regulatory own funds as may be applicable.

(i) establish and regulate the maintenance of funding

requirements by retirement schemes; prescribe

regulations regarding the maintenance of a schedule of

RETIREMENT PENSIONS

payments by retirement schemes or by service

providers on behalf of retirement schemes; regulate the

manner in which a scheme which provides cover against

biometric risks or guarantees an investment performance

or a given level of benefits deals with surplus funds and

underfunding;

(j) regulate the payment (including the time thereof),

nature and amount of benefits which may or may not

be paid to beneficiaries and, or members;

(k) provide for and regulate the payment by any person,

body, retirement scheme or retirement fund, or service

provider as the case may be, of licence fees or other fees

and such other charges payable to the competent

authority in respect of any matter provided for, by or

under this Act or any regulations made under this

article, as may be prescribed;

(l) transpose, implement and give effect to the provisions

and requirements of the Occupational Pensions

Directive and of the Solvency II Directive insofar as

applicable to occupational pensions, and including any

implementing measures, implementing technical

standards, regulatory technical standards and similar

measures issued thereunder as may be applicable to

retirement schemes that have or may be issued

thereunder;

(m) provide for and regulate the vesting, acquisition,

preservation of retirement rights and any matter

ancillary thereto;

(n) transpose, implement and, or give effect to the provisions

and requirements of Directives, regulations and any other

legislative measures of the European Union requiring

transposition and, or implementation, as they may be

amended from time to time, including any implementing

measures that have been or may be issued thereunder and

relating to licence holders and others as may be specified

therein; any such regulations strictly related to the

transposition or implementation as aforesaid may contain

provisions which are inconsistent with the provisions of

this Act or of any other law, and for this purpose may

provide that any provision in this Act or in any other law

shall not apply to matters falling under the regulations,

and in case of such inconsistency, such provisions in any

such regulations shall prevail;

(o) provide for the application of specific provisions of the

Occupational Pensions Directive to the occupational

pensions provision business carried out by insurance

undertakings authorised under the Insurance Business

Act carrying on long term business;

(p) provide for any matter incidental to or connected with

any of the foregoing paragraphs;

(q) provide for any matter that may or is to be prescribed

RETIREMENT PENSIONS

under any provision of this Act.

(2)

Deleted by Act V.2020.85.

(3) Any regulations made under this article may be made

subject to such exemptions or conditions as may be specified

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

circumstances or purposes and may give to the competent authority

such powers of adaptation of the regulations as may be therein

specified.

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

the competent authority may issue Pension Rules for the better

carrying out and to better implement the provisions of the

regulations.

(5) The exercise of any of the powers assigned under this

article shall be subject to any obligations or rights arising from

Malta’s international commitments.

PART VII

Regulatory and Investigatory Powers

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

competent authority. The competent authority shall perform such

other functions as the Minister may consider appropriate in relation

to the operation of this Act.

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

competent authority may, from time to time, issue, amend, or

revoke Pension Rules which shall be binding on licence holders

under this Act and others as may be specified there in and to a

particular category of retirement scheme and, or retirement fund or

persons or situations or to persons and situations generally. Such

Pension Rules may lay down additional requirements and

conditions in relation to activities of that licence holder, the conduct

of their business, their relations with members, beneficiaries,

investors, the public and other parties as may be applicable, their

responsibilities to the competent authority, reporting requirements,

financial resources, capital adequacy and related requirements, and

any other matters as the competent authority may consider

appropriate, in particular in relation to the following

(a) the legal form and constitution of retirement schemes

and, or retirement funds, the governance, structuring

and management of such retirement schemes and, or

retirement funds;

(b) the appointment and removal, qualifications and

experience of the Retirement Scheme Administrator

and, or any person, by whatever name designated,

responsible for the operation, administration and

management of the retirement fund; activities of that

licence holder, the conduct of or fund; and any service

provider of any such retirement scheme and retirement

fund;

(c) the powers and duties of the Retirement Scheme

Administrator and, or any person, by whatever name

RETIREMENT PENSIONS

designated,

responsible

for

the

operation,

administration and management of the retirement fund

and any service provider of any such retirement

scheme and, or retirement fund;

(d) the management and valuation of the assets and

obligations of the retirement scheme and retirement

fund;

(e) the restriction or prohibition of the free disposal of the

assets of a retirement scheme falling within such

description as may be prescribed, when in particular -

(i) that retirement scheme has failed to establish

sufficient technical provisions in respect of the

entire business or has insufficient assets to cover

the technical provisions;

(ii) that retirement scheme has failed to hold any

regulatory own funds as may be applicable;

(f) employee representation in retirement schemes;

(g) the provision of specific requirements for personal

retirement schemes;

(h) the form and content of applications to the competent

authority for licensing or other purposes in terms of this

Act; the format, content or amendment of a scheme

document, the constitutional document of a retirement

fund, scheme particulars and fund particulars;

(i) Deleted by Act V.2020.86.;

(j) provisions on financial resources requirements

applicable to licence holders;

(k) reporting and disclosure requirements, including the

preparation of periodical reports with respect to

retirement schemes and retirement funds and the

furnishing of those reports to the competent authority,

members, beneficiaries or investors as the case may

be;

(l) providing for and establishing the requirements

regarding the unitisation of certain classes and nature

of retirement schemes and, or retirement funds;

(m) establishing circumstances and conditions applicable

regarding the transfer of retirement benefits;

(n) establishing conditions and requirements regarding the

payment of expenses by retirement schemes and, or

retirement funds;

(o) establishing conditions and requirements regarding the

payment to a member in the event that the member is no

longer employed by the employer;

(p) without prejudice to the provisions of the Companies

Act, establishing the persons who may act as auditors

of licence holders or providing that the persons who may

so act shall be persons with professional qualifications

or experience as may be established or such other

RETIREMENT PENSIONS

persons as are approved by the competent authority;

without prejudice to the provisions of the Companies

Act, making provisions relating to the appointment,

resignation and removal of auditors of licence holders

and the duty of a licence holder to make documents

available to the auditors of such licence holder;

(q) establishing the persons who may act as actuaries of

retirement schemes or provide that the persons who

may so act shall be persons with professional

qualifications or experience as may be established or

such other persons as are approved by the competent

authority; make provisions relating to the appointment,

resignation and removal of actuaries of retirement

schemes and the duty of a retirement scheme or

Retirement Scheme Administrator or any person, by

whatever name designated, responsible for the

operation, administration and management of the

retirement scheme, to make documents available to the

actuary of such retirement scheme;

(r) setting minimum standards and requirements which

are to be observed by licence holders when issuing or

approving advertisements in accordance with article

34, including provision for such exemptions or

conditions as may be specified and different provision

for different cases or classes of cases, under such

terms and conditions as may be established; imposing

such conditions, limitations and restrictions on a

licence holder with respect to the issue, as it may

consider appropriate;

(s) issuing Pension Rules to regulate occupational

schemes established by associations of employers;

(t) issuing Pension Rules regulating the contribution of

money or other consideration to retirement schemes;

(u) issuing Pension Rules in relation to occupational

retirement schemes transferring all or part of their

liabilities, technical provisions and other obligations

and rights, as well as corresponding assets or cash

equivalent to another retirement scheme;

(v) issuing Pension Rules to enable a member, beneficiary,

contributor and generally any person who has entered or

offered to enter into a retirement scheme, to rescind the

agreement or withdraw the offer within such period and

in such manner as stipulated in the said Rules.

(1) Without prejudice to anything contained in any other

p r o v i s i o n o f t h i s A c t w h i c h r e q u i r e s a Re t i r e m e n t S c h e m e

Administrator, a retirement scheme and a retirement fund to furnish to

the competent authority any information or documentation, the

competent authority may, by notice in writing, require -

(a) any contributor, any service provider or any person

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who is or was providing, or who appears to be or to

have been providing a service to a retirement scheme,

a retirement fund or overseas retirement scheme, or

who appears to be or have been carrying on activities

in connection with a retirement scheme, a retirement

fund or overseas retirement scheme; or

(b) any contributor, service provider or person who has

issued, or appears to have issued an advertisement

falling within the provisions of article 34; or

(c) any retirement scheme or retirement fund; or

(d) any other contributor, service provider or any other

person who appears to be in possession of relevant

information,

to do all or any of the following

(i)

to furnish to the competent authority, at such

time and place and in such form as it may

specify, such information and documentation as

it may require, including existing telephone and

existing data traffic records, with respect to any

service, such retirement scheme or retirement

fund or advertisement as aforesaid, or with

respect to any person with whom the licence

holder has close links within the meaning of

article 9;

(ii) to furnish to the competent authority any

information or documentation aforesaid verified

in such manner and in such language as it may

specify; or

(iii) to attend before the competent authority, or

before a person appointed by it, at such time and

place as it may specify, to answer questions and

provide information and documentation with

respect to any such service, retirement scheme

or retirement fund or advertisement or with

respect to any person with whom the licence

holder has close links within the meaning of

article 9.

(2) The competent authority may take and retain copies of any

documents furnished or provided under this article or extracts from

(3) Where the person required to provide information or

documentation under this article does not have the relevant

information or documentation, he shall disclose to the competent

authority where, to the best of his knowledge, that information or

documentation is, and the competent authority may require any

person, whether indicated as aforesaid or not, who appears to it to

be in possession of that information or documentation, to provide

(4) A statement made and documentation provided in

pursuance of any requirement under this article may be used in

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evidence against the person making the statement or providing the

documentation as well as against any person to whom they relate.

(5) The provisions of this article shall not apply to information

or documentation which is privileged in accordance with the

provisions of article 642 of the Criminal Code.

(6) The power to require the production of documentation

under the provisions of this article shall be without prejudice to any

l i e n o r c h a rg e c l a i m e d b y a n y p e r s o n i n r e l a t i o n t o s u c h

documentation.

(7) Where the competent authority has appointed a person

under article 40(1), such person shall, for the purposes of carrying

out his functions under his appointment, have all the powers

conferred on the competent authority by this article and a

requirement made by him shall be deemed to be and have the same

force and effect as a requirement by the competent authority.

(8) Without prejudice to the other provisions of this article, a

holder of a licence may be required to submit to the Central Bank of

Malta such information as the Bank may reasonably require for the

discharge of its duties under the Central Bank of Malta Act.

(9) The powers to obtain information available to the competent

authority pursuant to this article with regard to the persons listed in

sub-article (1), shall also be available with regard to the service

providers of outsourced key functions or any other activities at any

time.

(1) The competent authority may, whenever it deems it

necessary or expedient, appoint an inspector or inspectors to

investigate and report on the affairs of any retirement scheme,

retirement fund, service provider, overseas retirement scheme or

person,referred to in article 39(1)(a) to (c) and to report thereon to it.

(2)

An inspector appointed under sub-article (1) -

(a) may also, if he thinks it necessary or expedient for the

purposes of that investigation, investigate the affairs of

any retirement scheme, retirement fund, service

provider, overseas retirement scheme or person,

mentioned in sub-article (1);

(b) shall have and may exercise all the powers conferred

on the competent authority by article 39, and any

requirement made by him shall be deemed to be and

have the same force and effect as a requirement by the

competent authority; and

(c) may, and if so directed by the competent authority

shall, make interim reports and on the conclusion of

his investigation shall make a final report to the

competent authority.

(3) The competent authority shall have power to order that all

expenses of, and incidental to, an investigation pursuant to this

article be paid by the retirement scheme, retirement fund, service

provider, overseas retirement scheme or person concerned.

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(1) Without prejudice to any of the powers conferred on it

by articles 39 and 40, the competent authority may, whenever it

deems it necessary, and whether upon a report by an inspector

appointed under article 40 or not, give, by notice in writing, such

directives as it may deem appropriate in the circumstances; and

anyone referred to in article 39 to whom or to which the notice is

given shall obey, comply with and otherwise give effect to any such

directive within the time and in the manner stated in the directive or

further directive

Provided that the competent authority may give any such

directive, even where a licence holder, for whatever reason, ceases

to hold a licence granted in terms of this Act

Provided further that any directive given in terms of this article

shall, unless the competent authority otherwise directs, continue to

apply even when a licence holder, for whatever reason, ceases to hold

a licence granted in terms of this Act.

(2) Without prejudice to the generality of the foregoing

provisions of this article, a directive under this article may -

(a) require anything to be done or be omitted to be done,

or impose any prohibition, restriction or limitation, or

any other requirement, including any requirement

emanating from European Union legislation, and confers

powers,with respect to any transaction or other act, or

to any assets, or to any other thing whatsoever;

(b) require a retirement scheme, or a retirement fund and

any other person who may issue or redeem units or

shares in the retirement scheme or retirement fund, as

the case may be, to cease the issue or redemption of

units or shares or all or any combination of those

activities, as may be specified in the directive;

(c) require that any officer or any person having functions in

relation to the holder of a licence be prohibited,

temporarily or otherwise, suspended from carrying out

activities licensable under the Act, or be removed, or

removed and replaced by another person acceptable to

the competent authority;

(d) require a retirement scheme or Retirement Scheme

Administrator or any person, by whatever name

designated,

responsible

for

the

operation,

administration and management of the retirement fund

as applicable, to wind up the retirement scheme or

retirement fund by such date and in accordance with

such procedure and other provisions as may be

specified in the directive;

(e) require a retirement scheme or retirement fund or

service provider or any person who is or was

providing, or who appears to be or to have been

providing a service, to cease operations and to wind up

its affairs, in accordance with such procedures and

directions as may be specified in the directive, which

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may provide for the appointment of a person to take

possession and control of all documents, records,

assets and property belonging to or in the possession

or control of the retirement scheme or retirement fund

or service provider or such other person;

(f)

require the cessation of any practice that is contrary to

the provisions adopted in the implementation of the

Occupational Pensions Directive.

(3) Where the competent authority is satisfied that the

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

directive it has given under any of the provisions of this article.

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

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

the power to issue new or further directives.

(1)

The competent authority shall review the strategies,

processes and reporting procedures which are established by a

Retirement Scheme Administrator or an occupational retirement

scheme to comply with the provisions of this Act and any regulations

and Pension Rules issued thereunder taking into account the size,

nature, scale and complexity of the activities of the scheme.

(2)

The review carried out by the competent authority pursuant

to sub-article (1), shall take into account the circumstances in which

the occupational retirement scheme is operating, and where relevant,

the parties carrying out outsourced key functions or any other

activities for them. The review shall comprise of an assessment of the

following elements

(a)

an assessment of the qualitative requirements

relating to the system of governance;

(b)

an assessment of the risks which the occupational

retirement scheme faces;

(c)

an assessment of the ability of the occupational

retirement scheme to assess and manage those risks.

(3)

Where the competent authority identifies any weakness or

deficiency as a consequence of the supervisory review process, it shall

request the Retirement Scheme Administrator or an occupational

retirement scheme to remedy such weakness or deficiency within such

period and in such manner, as it may deem necessary or appropriate in

the circumstances.

(4)

The reviews, evaluations and assessments referred to in sub-

articles (1) and (2), shall be conducted regularly and the competent

authority shall establish the minimum frequency and the scope of the

review referred to in sub-article (1) having regard to the nature, scale

and complexity of the activities of a Retirement Scheme Administrator

or the occupational retirement scheme.

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Without prejudice to the provisions of the Act, an

occupational retirement scheme shall submit to the competent

authority the information which is necessary for the purposes of

supervision, as may be specified by means of regulations or Pension

Rules which shall also specify the period within which such

information is to be submitted.

(1) Without prejudice to the provisions of the Companies

Act, relating to the entry and search of premises, any officer, employee

or agent of the competent authority, on producing, if required,

evidence of his authorisation, may enter premises occupied by a

person on whom a notice has been served under article 39 or whose

affairs are being investigated under article 40, for the purpose of

obtaining there the information or documents required by that

notice, or otherwise for the purpose of the investigation, and of

exercising any of the powers conferred by the said articles.

(2) Where any officer, employee or agent of the competent

authority has reasonable cause to believe that if such notice as is

referred to in sub-article (1) were served it would not be complied

with or that any documents to which it could relate would be

removed, tampered with or destroyed, such person may, on

producing if required, evidence of his authority, enter any premises

referred to in sub-article (1) for the purpose of obtaining from there

any information or documents, specified in the notice, being

information or documents that could have been required under such

notice as is referred to in sub-article (1).

(3) For the purposes of any action taken under the provisions of

this article, the competent authority may request the assistance of

the Commissioner of Police, who shall for such purpose exercise

such powers as are vested in him for the prevention of offences and

the enforcement of law and order

Provided that, where an entry as is mentioned in this article

involves premises that are occupied for the purpose of habitation, such

entry shall be carried out in the presence of an officer of the Police of a

rank not below that of inspector and shall moreover not take place

between nine in the evening and five in the morning.

(1) The competent authority may exercise the following

powers at the request of or for the purposes of assisting an overseas

regulatory authority

(a) the power to impose, revoke or vary conditions on the

licence granted pursuant to the provisions of article

9(3);

(b) the power to cancel or suspend a licence under article

10(1);

(c) the power to require information and documentation

under article 39;

(d) the power to appoint inspectors under article 40;

(e) the powers of intervention under article 41;

(f) the powers of entry under article 42;

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(g) the power to communicate to the overseas regulatory

authority information which is in the possession of the

competent authority, whether or not as a result of the

exercise of any of the above powers.

(2) The competent authority shall exercise powers by virtue of

this article

(a) where the assistance is requested by the overseas

regulatory authority for the purpose of the exercise of

one or more of its regulatory functions; or

(b) where so required within the terms of Malta’s

international commitments; or

(c) where so required within the terms of undertakings

assumed in bilateral or multilateral agreements for the

exchange of information and other forms of

collaboration with overseas regulatory authorities,

including a request arising under a memorandum of

understanding concluded with the competent authority.

(3) The competent authority shall cooperate with EIOPA for

the purposes of the Occupational Pensions Directive in accordance

with Regulation (EU) No 1094/2010. The competent authority

shall, without delay, provide EIOPA with all information necessary

to carry out its duties under the Occupational Pensions Directive

and under Regulation (EU) No 1094/2010, in accordance with

Article 35 of that Regulation.

PART VIII

Appeals, Remedies, Sanctions and Confidentiality

(1) Subject to the provisions of this article, an appeal shall

lie to the Financial Services Tribunal established under article 21 of

the Malta Financial Services Authority Act with respect to

(a) any notice in accordance with articles 4(4), 5(3) and

6(3);

(aA) any condition imposed in a licence in terms of article

9(3);

(b) any failure to inform an applicant within the terms of

article 9(8);

(c) any refusal, variation, cancellation or suspension of a

licence under articles 9, 10 and 11;

(d) any decision under article 32(5);

(e) any directive given under article 41; or

(f) any administrative penalty or other measures imposed

under article 46.

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

operation of any decision or directive from which the appeal is

made

Provided that a decision to cancel a licence shall not become

operative until the expiration of the period within which an appeal

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

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

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

is abandoned.

(3) The provisions of article 21 of the Malta Financial Services

Authority Act shall apply mutatis mutandis to appeals made to the

Tribunal under this Act.

(4) The Financial Services Tribunal shall have exclusive

competence to hear appeals on the matters listed in sub-article (1).

(1) If, on an application by the competent authority made

to the Civil Court, First Hall, the Court is satisfied -

(a) that there is reasonable likelihood that a person will

contravene any of the provisions of this Act or any

regulations or Pension Rules made thereunder, or will

contravene or fail to comply with any condition,

obligation, requirement, Pension Rules, or directive

made or given under any of the provisions of this Act;

or

(b) that a person has contravened any such provision or

has contravened or failed to comply with any such

condition, obligation, requirement, Pension Rules, or

directive and that steps could be taken to remedy the

contravention or failure,

the Court may give such orders as it may deem appropriate to

restrain the contravention or, as the case may be, to require the

person referred to in paragraph (a) or (b), or any other person who

appears to the Court to have been knowingly concerned in the

contravention, to take such steps as the Court may direct.

(2) If, on an application made under sub-article (1), the Court

is satisfied that a person has entered into any transaction in

contravention of any of the provisions of this Act or any

regulations or Pension Rules made thereunder, the Court may order

that person and any other person who appears to the Court to have

been knowingly concerned in the contravention, to take such steps

as the Court may direct for restoring the parties to the position in

which they were before the transaction was entered into.

(3) If, on application made under sub-article (1), the Court is

further satisfied that -

(a) profits have accrued to any person as a result of the

contravention; or

(b) a shareholder, contributor, member or a beneficiary or

an investor has suffered loss or been otherwise

adversely affected as a result of that contravention,

the Court may order the person responsible for the contravention to

pay into Court such sum as appears to it to be just having regard to

the extent of the profit, loss or adverse effect as aforesaid, and

order such sum to be paid out as the Court may direct to the persons

who have entered into transactions as a result of which profits have

accrued or losses or adverse effects have been suffered as

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aforesaid.

(4) For the purposes of this article the Court may order the

production by any person of such accounts and the provision of

such information, and authenticated in such manner, as the Court

may deem appropriate.

(5) The provisions of this article shall be without prejudice to

any right of any aggrieved person to bring proceedings directly in

respect of any right such person may otherwise have independently

of the competent authority.

(1) Without prejudice to any other powers assigned to the

competent authority in terms of this Act, where a licence holder or

an officer, or any other person responsible for a licence holder

contravenes or fails to comply with any of the conditions imposed in a

licence and, or where the competent authority is satisfied that a

person’s conduct amounts to a breach of any of the provisions of

this Act, regulations or Pension Rules made thereunder, including

failure to cooperate in an investigation, the competent authority

may by notice in writing and without recourse to a court hearing

impose on the licence holder, officer and, or any other person, as the

case may be, an administrative penalty which may not exceed one

hundred and fifty thousand euro (€150,000) in respect of each

infringement or failure to comply, as the case may be and, where such

infringement or failure to comply continues, a further penalty not

exceeding one hundred and sixteen euro (€116) for each day during

which the infringement or failure to comply continues.

(2) Pension Rules may provide for the imposition of

administrative penalties or other measures that may be imposed by

the competent authority on licence holders or others, as may be

specified, whether in the form of a fixed penalty, a daily penalty or

both, for any breach of the said Pension Rules.

(3) The imposition by the competent authority of an

administrative penalty in terms of this article shall be without

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

offender under civil or criminal law

Provided that, in all cases where the competent authority

imposes an administrative penalty in respect of anything done or

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

constitutes a criminal offence under this Act, no proceedings may

be taken or continued against the said person in respect of such

criminal offence.

(4) The competent authority shall, without undue delay, publish in

such medium and in such manner and for such duration, as it may

determine, any administrative penalty or other measure which is

imposed for breaches of the provisions of this Act, any regulations or

Pension Rules issued thereunder, and with regard to which no appeal

was filed within the time limit prescribed by law. Such publication

shall include information on the type and nature of the breach and the

identity of the natural or legal person responsible for the breach.

(4A) Notwithstanding sub-article (1), the competent authority

may decide to defer publication, not to publish, or to publish on an

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anonymous basis, any administrative penalty or other measure

imposed, in any of the following circumstances

(a) where the publication of the identity of legal persons,

or the identity or personal data of natural persons, is

considered by the competent authority to be

disproportionate, following a case by case assessment

conducted on the proportionality of the publication of

such data; or

(b) where the publication jeopardises the stability of

financial markets or an ongoing investigation.

(5) The imposition by the competent authority of an

administrative measure in terms of this article shall be without

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

offender under civil or criminal law

Provided that, in all cases where the competent authority

imposes an administrative measure consisting of an administrative

penalty in respect of anything done or omitted to be done by any

person and such act or omission also constitutes a criminal offence

under this Act, no proceedings may be taken or continued against

the said person in respect of such criminal offence.

In exercising its powers referred to in articles 41, 43 and

46, the competent authority shall in its decisions state the grounds

on which such decisions have been based.

Any person who

(a) for the purposes of obtaining a licence under this Act,

or pursuant to any of the provisions of this Act, any

regulations or Pension Rules issued thereunder, or any

condition, obligation, requirement or Pension Rules or

directive made or given as aforesaid, furnishes

information or makes a statement or a declaration

which he knows to be inaccurate, false or misleading

in any material respect, or recklessly furnishes

information or makes a statement or a declaration

which is inaccurate, false or misleading in any

material respect;

(b) is knowingly a party to the carrying out of any

retirement scheme or retirement fund or licensable

activity with an intent to defraud or for a fraudulent

purpose;

(c) by any statement, promise or forecast which he knows

to be misleading, false or deceptive, or by any

dishonest concealment of material facts, or by the

reckless making (whether dishonest or otherwise) of

any statement, promise or forecast which is

misleading, false or deceptive, induces or attempts to

induce another person to enter into, or offer to enter

into a retirement scheme or retirement fund;

(d) with intent to avoid detection of the commission of an

offence under this Act, any regulations or Pension

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Rules issued thereunder removes, destroys, conceals or

fraudulently alters any book, document or other paper;

or

(e) intentionally obstructs a person exercising rights

conferred by this Act or any regulations or Pension

Rules issued thereunder,

shall be guilty of an offence.

A person guilty of an offence under the provisions of article

48 shall, be liable on conviction to a fine (multa) not exceeding four

hundred and sixty-six thousand euro (€466,000) or to a term of

imprisonment not exceeding four years, or to both such fine and

imprisonment.

(1) No proceedings for an offence under this Act and any

regulations made thereunder, shall be commenced without the sanction

of the Attorney General.

(2) The provisions of this Act and any regulations made

thereunder shall not affect any criminal proceedings that may be

competent under any other law.

Deleted by Act V.2020.98.

(1) Information obtained by the competent authority or its

officers, employees, agents, including former officers, employees

or agents, as well as by inspectors, auditors, actuaries and experts

acting on behalf of the competent authority for the purposes of, or

pursuant to any of the provisions of this Act, or any regulations or

Pension Rules issued thereunder, or in the discharge of any

functions under any of the said provisions, shall be treated as

confidential and protected by the duty of professional secrecy.

(2)

Without prejudice to cases covered by criminal law, the

persons referred to in sub-article (1) shall not disclose information

obtained, from a retirement scheme, a retirement fund and a service

provider licensed under the Act, unless such disclosure of information

is done in summary or aggregate form, so as not to enable the identity

of such scheme, to whom such information relates, to be ascertained

Provided that such persons may disclose confidential

information in civil or commercial proceedings where a retirement

scheme, a retirement fund or a service provider is being compulsorily

wound up.

(3) The competent authority, when processing personal data for

the purposes of the Act and any regulations and Pension Rules issued

thereunder, shall do so in accordance with Regulation (EU) 2016/679

of the European Parliament and of the Council of 27 April 2016 on the

protection of natural persons with regard to the processing of personal

data and on the free movement of such data, and repealing Directive

95/46/EC (General Data Protection Regulation), as amended from

time to time.

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(1)

Where the competent authority receives confidential

information under this Act and any regulations or Pension Rules

issued thereunder, it may only use such confidential information in the

course of its duties and for the following purposes

(a)

to verify that conditions for taking up the activity

for the provision of retirement benefits are met by the

retirement scheme before commencing its activities;

(b)

to facilitate the monitoring of activities of the

retirement scheme, including the monitoring of technical

provisions, the solvency, the system of governance and the

information provided to members and beneficiaries, as

applicable;

(c)

to impose

corrective

measures,

including

administrative sanctions;

(d)

to publish key performance indicators for all

individual occupational retirement schemes which may assist

members and beneficiaries in taking financial decisions

regarding their pension where permitted by national law;

(e)

in appeals filed from decisions of the competent

authority under article 44;

(f)

in judicial proceedings relating to the provisions

of the Act, any regulations and, or Pension Rules issued

thereunder.

(2)

Articles 52 and 52A of the Act shall be without prejudice to

the right of inquiry conferred on the European Parliament by Article

226 of the Treaty on the Functioning of the European Union, pursuant

to Article 54 of the Occupational Pensions Directive.

(1)

Notwithstanding the provisions of articles 52 and

52A, the competent authority

(a)

in the discharge of its supervisory functions, shall

exchange information with

(i)

overseas regulatory authorities;

(ii)

authorities responsible for the supervision

of the financial sector entities and other financial

organisations and the authorities responsible for the

supervision of financial markets;

(iii) authorities or bodies charged with the

responsibility for maintaining the stability of the

financial system in Member States through the use of

macro-prudential rules;

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(iv) bodies involved in the winding up of

retirement schemes and in other similar procedures;

(v)

reorganisation bodies or authorities aiming

at protecting the stability of the financial system;

(vi) persons responsible for carrying out

statutory audits of the accounts of retirement schemes,

insurance undertakings and other financial institutions;

(vii) authorities responsible for overseeing the

bodies involved in the winding up of retirement schemes

and other similar procedures;

(viii) authorities responsible for overseeing the

persons charged with carrying out statutory audits of the

accounts of retirement schemes, insurance undertakings

and other financial institutions;

(ix) independent actuaries of retirement

schemes carrying out supervision of those schemes and

the bodies responsible for overseeing such actuaries;

(b)

shall disclose to bodies which administer the

winding up of a retirement scheme the information necessary

for the performance of their duties.

(2)

Any information provided by the competent authority to

authorities, bodies or persons referred to in sub-article (1)(a)(i) to (vi),

shall be subject to the duty of professional secrecy.

(3)

Notwithstanding the provisions of articles 52 and 52A, the

competent authority may transmit information for the purposes of the

exercise of their respective tasks to the following

(a)

the Central Bank of Malta, the central banks of

the European System of Central Banks (including the European

Central Bank) and other bodies with a similar function in their

capacity as monetary authorities;

(b)

where appropriate, other national public

authorities responsible for overseeing payment systems; and

(c)

the European Systemic Risk Board, EIOPA, the

European Supervisory Authority (European Banking Authority)

established by Regulation (EU) No. 1093/2010 of the European

Parliament and of the Council and the European Supervisory

Authority (European Securities and Markets Authority)

established by Regulation (EU) No. 1095/2010 of the European

Parliament and of the Council.

(4)

Without prejudice to the provisions of this article and

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articles 52C and 52D, the authorities or bodies referred to in sub-

article (4) shall communicate to the competent authority any

information which the competent authority requires for the purposes of

article 52A.

(5)

Any information provided by the competent authority in

accordance with sub-article (4) or received by the competent authority

in accordance with sub-article (5) shall be subject to the duty of

professional secrecy.

(1)

Notwithstanding the provisions of articles 52(1),

52(2), 52A and 52D(1), the competent authority may exchange

information with other departments of central government

administration responsible for the enforcement of legislation on the

supervision of occupational retirement schemes, credit institutions,

financial institutions, investment services and insurance undertakings,

or inspectors acting on behalf of those departments, provided that

(a)

such disclosures shall be made only where

necessary for reasons of prudential control and prevention and

resolution of failing occupational retirement schemes; and

(b)

without prejudice to sub-article (3), persons

having access to such information shall be subject to the duty of

professional secrecy.

(2)

Any information obtained by means of an on-site

verification may be disclosed to the departments referred to in sub-

article (1), only with the express consent of the competent authority

from which the information originated from, or the overseas regulatory

authority of the country in which the on-site verification was carried

out.

(3)

The competent authority may disclose confidential

information relating to the prudential supervision of an occupational

retirement scheme to national parliamentary enquiry committees or

national courts of auditors and other national entities in charge of

enquiries, where all the following conditions are satisfied

(a)

the entities have competence under national law

to investigate or scrutinise the actions of authorities responsible

for the supervision of occupational retirement schemes or for

laws on such supervision;

(b)

the information is strictly necessary for satisfying

the competence referred to in paragraph (a);

(c)

the persons with access to the information are

subject to the duty of professional secrecy requirements;

(d)

if the information originates from another

Member State, that information is disclosed with the explicit

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agreement of the originating overseas regulatory authorities and

solely for the purposes for which those authorities gave their

agreement.

(1)

For exchanges of information under articles (1) to (3)

of article 52B of the Act, transmission of information under sub-

articles (4), (5) and (6) of article 52B and the disclosure of information

under article 52C, the following conditions shall be satisfied

(a)

the information shall be exchanged, transmitted

or disclosed for the purpose of carrying out oversight or

supervision;

(b)

the information received shall be subject to the

duty of professional secrecy;

(c)

where the information originates from another

Member State, it shall not be disclosed without the express

agreement of the overseas regulatory authority from which it

originates and where appropriate, solely for the purposes for

which that authority gave its agreement.

(2)

Notwithstanding the provisions of article 52A, the

competent authority may exchange information with authorities or

bodies responsible for the detection and investigation of breaches of

company law applicable to sponsoring undertakings, for the purposes

of strengthening the stability and integrity of the financial system,

provided that

(a)

the information is intended for the purpose of

detection, investigation and scrutiny as referred to in article

52C(3)(a);

(b)

the information received shall be subject to the

duty of professional secrecy;

(c)

where the information originates from another

Member State, it shall not be disclosed without the express

agreement of the overseas regulatory authority from which it

originates and, where appropriate, solely for the purposes for

which that authority gave its agreement.

(3)

Where the authorities or bodies referred to in sub-article (2)

perform their tasks of detection or investigation with the assistance of

persons appointed in view of their specific competence and for that

purpose, and who are not employed in the public sector, the possibility

of exchanging information provided for in article 52C(3), shall apply.

RETIREMENT PENSIONS

(1)

The competent authority shall co-operate with

EIOPA in accordance with Regulation (EU) No. 1094/2010 and with

the European Commission for the purposes of the Occupational

Pensions Directive and to facilitate supervision of the operations of

retirement schemes.

(2)

The competent authority shall provide EIOPA with all

information necessary to carry out its duties under the Occupational

Pensions Directive and Regulation (EU) No. 1094/2010, in accordance

with Article 35 of Regulation (EU) No. 1094/2010.

(3) The competent authority shall inform EIOPA and the European

Commission of any major difficulties which the application of the

Occupational Pensions Directive gives rise to and the European

Commission, EIOPA and the competent authority shall examine such

difficulties as quickly as possible in order to find an appropriate

solution.

PART IX

Miscellaneous

Deleted by Act V.2020.101.

A notice or other document to be given or served under this

Act, or any regulations or Pension Rules made thereunder, shall be

deemed to have been duly given or served on a person if -

(a) it has been delivered to him; or

(b) it has been left at the address furnished by him to the

competent authority, or to his last known address; or

(c) it has been sent to it by post or e-mail at any of the

aforesaid addresses; or

(d) in the case of a body of persons, whether corporate or

unincorporated, or of a retirement scheme or a

retirement fund, if it has been given or served in any of

the manners aforesaid to or on a retirement scheme or

retirement fund, Retirement Scheme Administrator,

any person, by whatever name designated, responsible

for the operation, administration and management of

the retirement fund, secretary, clerk, manager, or their

equivalent, or to any contributor or to any director or

member of any person, by whatever name designated,

responsible for the operation, administration and

management of the retirement scheme or fund or an

appointed representative.

(1) Subject to the provisions of article 56, the Special

Funds (Regulation) Act is hereby repealed without prejudice to

anything done or which may be done under that Act, saving every

authorisation, approval or order taken or commenced thereunder,

which shall continue to be valid and in force, as if such

authorisation, approval or order were taken or commenced under

this Act.

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(2) Subject to sub-article (1), and unless the context otherwise

requires, any reference to the Special Funds (Regulation) Act used

in any law, regulation, rule or other document before the coming

into force of this Act, shall be deemed to be a reference to this Act.

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

authority, may, by regulations, make transitional provisions in

respect of such persons who, on the effective date of this Act, were

registered under the Special Funds (Regulation) Act, and, without

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

regulations, in particular prescribe a period within which such

persons shall apply for a licence under this Act.

(2) Subject to the provisions of article 55, any person licensed

under the Special Funds (Regulation) Act shall, not later than the

period prescribed in terms of sub-article (1), conform with the

provisions of this Act or otherwise cease to carry on the activities

for which such licence was granted, and such person shall until the

prescribed period or until it conforms with the provisions of this

Act, whichever is the earlier, continue to be governed by the

provisions of the Special Funds (Regulation) Act.

(3) Where a person ceases to carry on the activities for which it

was licensed on the grounds that such person did not, on the

prescribed date, conform with the provisions of this Act, that

person shall cease such activities with immediate effect and the

competent authority may impose such conditions as it may deem

appropriate in the circumstances.

(4) The Minister, acting on the advice of the competent authority

may, by regulations, make transitional provisions in respect of such

persons who were granted a recognition by the competent authority

under article 7 of the Retirement Pensions Act and, without prejudice

to the generality of the foregoing may, by such regulations, in

particular, prescribe a period within which back office administrators

are to surrender their recognition, subject to such conditions and

requirements as may be prescribed.

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