ENEMALTA (TRANSFER OF ASSETS, RIGHTS, LIABILITIES AND OBLIGATIONS) ACT

ENEMALTA (TRANSFER OF ASSETS, RIGHTS,

LIABILITIES AND OBLIGATIONS)

CHAPTER 536

ENEMALTA (TRANSFER OF ASSETS, RIGHTS,

LIABILITIES AND OBLIGATIONS) ACT

To make provision for the transfer of all the assets, rights, liabilities and

obligations of Enemalta Corporation to Enemalta plc, to regulate the

functions of distribution system operators, to repeal the Enemalta Act, and

to make provision with respect to matters ancillary thereto or connected

therewith.

25th August, 2014;

27th August, 2014 *

ACT XXXIV of 2014 .

The short title of this Act is the Enemalta (Transfer of

Assets, Rights, Liabilities and Obligations) Act.

In this Act, unless the context otherwise requires

" a p p a r a t u s " i n r e l a t i o n t o e l e c t r i c a l e n e rg y, i n c l u d e s a l l

machines, consuming devices and fittings in which conductors are

used or of which they form part;

"Authority" means the Malta Resources Authority established by

the Malta Resources Authority Act; #

"conductor" means an electrical conductor arranged to be

electrically connected to a system;

"Corporation" means the Enemalta Corporation established by

the Enemalta Act;

"Company" means Enemalta plc (a public limited liability

company registered under the laws of Malta) bearing company

registration number C 65836 or its successors in title from time to

time;

"disposal" shall have the same meaning as under the Disposal of

Government Land Act when used with reference to any land under

Part I of this Act;

"distribution system operator" shall have the same meaning as

under the Electricity Market Regulations;

"electrical energy" means electrical energy when generated,

transmitted, supplied or used for any purpose except the

transmission of any communication or signal;

"energy" means all forms of commercially available energy,

* Article 4 came into force on 25th August, 2014 - see article 1(2) of the Act as

originally promulgated and Legal Notice 292 of 2014. The remaining articles

came into force on 27th August, 2014 - see article 1(2) of the Act as originally

promulgated and Legal Notice 301 of 2014.

# since the enactment of this Act, references to the Malta Resources Authority

should be construed as references to the Regulator for Energy and Water

Services (vide Act XXV. 2015.41); however due to the ‘historical’ aspect of

this Act, the original references to the Malta Resources Authority in this Act

have not been changed.

ENEMALTA (TRANSFER OF ASSETS, RIGHTS,

LIABILITIES AND OBLIGATIONS)

including electricity, natural gas (including liquefied natural gas

and liquefied petroleum gas), any fuel for heating and cooling

(including district heating and cooling), coal and lignite, peat, and

biomass as defined in Directive 2001/77/EC of the European

Parliament and of the Council of 27th September 2001 on the

promotion of electricity produced from renewable energy sources

in the internal electricity market;

"Engineering Resources Ltd" means Engineering Resources Ltd

(a private limited liability company registered under the laws of

Malta) bearing company registration number C 65835 or its successors

in title from time to time;

"Government" means the Government of Malta;

"installation" means the whole of any plant or apparatus,

designed for the acquisition, supply, storage, use or distribution of

any electrical energy, together with all necessary plant, buildings,

land and pipelines whether surface, underground or marine in

connection therewith, and, in relation to electrical energy, includes

prime movers, supply lines and consuming apparatus, if any;

"Minister" means the Minister responsible for energy;

"supply line" means a conductor or conductors or other means of

conveying, transmitting or distributing electrical energy, together

with any casing, coating, covering, tube, pipe insulator or part

enclosing, surrounding the same or any part thereof, or any

building or apparatus connected therewith, for the purpose of

transforming, conveying, transmitting or distributing electrical

energy.

Part I

Transfer of Assets and Liabilities of Enemalta Corporation

(1) With effect from the date of the coming into force of

this article, all assets and rights of whatever nature of the

Corporation whether in Malta or outside Malta, and including but

not limited to all real or other rights under any contract, all monies

due by any person to the Corporation, and all shares in, stocks, or

other interests of or in any other bodies held by it on the said day,

shall, without the need of any formalities other than this Act vest in

the Company, and all obligations and liabilities of the Corporation

on the said day, shall by virtue of this Act be deemed to be

liabilities and obligations of the Company without the need of any

formalities other than this Act.

(2) All actions pending before any court, tribunal, arbitral

tribunal, or any other adjudicating body, instituted by or against the

Corporation shall be continued by or against the Company without

the need of any formalities other than this Act.

(3) Notwithstanding the provisions of the Companies Act, with

effect from the date referred to in sub-article (1), the Corporation

shall for all purposes of law and by virtue of this sub-article be

deemed to have been amalgamated into the Company and the

provisions of sub-article (1) or article 354 of the Companies Act

shall, mutatis mutandis apply, without the need of and to the

ENEMALTA (TRANSFER OF ASSETS, RIGHTS,

LIABILITIES AND OBLIGATIONS)

exclusion of any formalities other than this Act, and for such

purpose

(a) the Corporation shall cease to exist as a separate legal

entity at law, and this without prejudice to any other

provisions of this Act;

(b) the Company shall be deemed to be the "acquiring

company", and the Corporation shall be deemed to be

the "company being acquired" for the purposes of

article 354(1) of the Companies Act.

(4) On the date referred to in sub-article (1), the Company shall

issue new shares in favour of the Government of Malta as its

shareholder, on such terms and conditions and at a value as may be

specified by the Minister by notice in the Gazette, provided that the

provisions of articles 73 and 74 of the Companies Act shall not

apply to the aforesaid issue of shares by the Company and to the

transfer of the assets and rights to the Company contemplated in

sub-article (1).

(5) On the date referred to in sub-article (1), any guarantee,

mandate, pledge, title transfer, privilege, hypothec or any security

whatsoever granted by any third party, including but not limited to

guarantees given by the Government, to secure any obligation or

liability of the Corporation towards any of its creditors shall continue

to have full effect, without the need of any formality other than this

Act, to secure the liabilities and obligations which by virtue of this

article shall become liabilities and obligations of the Company

towards the same creditors.

(6) The provisions of this article and the vesting of all assets

and liabilities, rights, interests and obligations in the Company

from the Corporation

(a) shall not operate as a novation in any right, liability or

obligation, and any such right liability or obligation

shall continue to have effect as if there were no change

in the holder, creditor or debtor thereof, and as if they

had always been rights, liabilities or obligations of the

Company;

(b) shall not operate as a breach of covenant or condition,

whether statutory or contractual or give rise to any

forfeiture;

(c) shall not invalidate, release from or discharge any

contract, guarantee, security or obligation undertaken

for the benefit of, or by any third parties;

(d) shall not give rise to the payment of any laudemium,

premium, penalty or other payment whatsoever.

(7) Nothing in this article shall preclude the Company from

causing the entry in any appropriate register in the Public Registry

or the Land Registry, or in any note registered or enrolled in those

registries, such reference or other annotation as may be appropriate

in the circumstances.

ENEMALTA (TRANSFER OF ASSETS, RIGHTS,

LIABILITIES AND OBLIGATIONS)

(1) Notwithstanding the provisions of any other law, all

persons in the employment of the Corporation immediately before

the coming into force of this article shall, upon the coming into

force of this article, be transferred to and become employees of

Engineering Resources Ltd by virtue of this article and without the

need of any other formalities.

(2) Engineering Resources Ltd shall take on all the rights and

obligations which the Corporation had towards the employees prior

to the transfer of the employees in virtue of this article, and each of

such employees shall, for all intents and purposes of any law, be

deemed to have been in the employment of Engineering Resources

Ltd since the date on which he took up the employment with the

Corporation, and each of such employees shall, for all intents and

purposes of any law continue to enjoy the same rights and

conditions held immediately before the coming into force of this

article, including but not limited to pension rights or rights relating

to the computation of any pension or of any pensionable service

under the Pensions Ordinance or of any other law.

Notwithstanding the provisions of the Disposal of

Government Land Act

(a) the disposal of any land in favour of the Company in

virtue of this Act shall be valid and shall have effect

without the need of any further authorisation other

than this article, and the provisions of the Disposal of

Government Land Act shall not apply to any disposal

of any land by the Company or any of its successors in

title (including any land transferred to the Company by

virtue of this Act) to any person, and such disposals

shall not require any further authorisation in terms of

the Disposal of Government Land Act;

(b) the Minister may by order in the Gazette remove any

restrictive conditions imposed by the Government on

the Corporation in any public deed by virtue of the

application of article 3(1)(e) of the Disposal of

Government Land Act in respect of the disposal of any

land made by the Government in favour of the

Corporation where such land is subsequently

transferred to the Company by virtue of paragraph (a);

(c) the Government may make available any land used by

the Corporation for the purpose of generation of

electricity immediately prior to the coming into force

of this article for use by the Company or to any other

entity in which the Company has any shareholding, as

subject to any conditions as the Government may deem

fit.

Part II

Regulation of Distribution System Operators

For the purposes of any of its functions, a distribution

system operator may, subject to the provisions of this Act and to

any requirement under any other law, install any installation in

ENEMALTA (TRANSFER OF ASSETS, RIGHTS,

LIABILITIES AND OBLIGATIONS)

public roads, and open and break up the surface of any street

Provided that any of these powers may not be exercised

without the approval of the Authority for Transport in Malta.

(1) A distribution system operator may reduce, as it thinks

fit, the quantity of energy supply to any consumer if, by reason of

any unforeseen circumstances beyond the control of the

distribution system operator, it appears that the supply of electrical

energy generated is insufficient to enable the full quantity to be

conveniently supplied.

(2) Where the quantity of energy supplied has been reduced as

aforesaid no liability shall be incurred by the said distribution

system operator in respect of any loss or damage caused by such

reduction.

A distribution system operator shall not be liable for any

loss or damage, whether material or consequential, to any person or

property, for any cessation of the supply of energy, which may be

due to unavoidable accident, fair wear and tear or overloading due

to unauthorised connection of apparatus, or to the reasonable

requirements of the electrical system, or to the defects in any

electrical installation not provided by the distribution system

operator.

The prices to be charged by a distribution system operator

for the supply of electrical energy and related services shall be in

accordance with such tariffs as may, from time to time, be

prescribed by the said distribution system operator following the

written approval by the Authority.

(1) A distribution system operator may only enter into

contracts for the procurement of goods, services or materials, other

than petroleum, or for the execution of works, in accordance with

the Public Procurement of Entities operating in the Water, Energy,

Transport and Postal Services Sectors Regulations.

(2) A distribution system operator may obtain petroleum, for

the exercise of its functions, in such manner and under such terms

and conditions as it may deem fit.

Any distribution system operator may, unless otherwise

instructed by the Authority, nominate any persons to enter any

premises, at all reasonable times, to which electrical energy is, has

been or is to be supplied by the distribution system operator, or in

which any installation, apparatus, instrument, plant or accessories

are, have been or are to be installed, or otherwise exist, for or in

connection with the supply, storage, distribution, sale or other

disposal of electrical energy by the distribution system operator, for

the purpose of

(a) inspecting, maintaining and, if need be, repairing any

of the items mentioned above, as well as any electric

lines, meters, fittings, works or apparatus belonging to

the distribution system operator or installed therein;

(b) ascertaining such data or information as the

distribution system operator may require in connection

ENEMALTA (TRANSFER OF ASSETS, RIGHTS,

LIABILITIES AND OBLIGATIONS)

with the services given by the distribution system

operator;

(c) removing all or any installations, apparatus,

instruments, plant or accessories belonging to the

distribution system operator, whenever any service

provided by the said distribution system operator is no

longer required or where the distribution system

operator is authorised to withdraw its services

Provided that the distribution system operator shall repair

all damage caused by any such entry, inspection or removal

Provided further that the power of entry into any private

property in terms of this article shall only be exercised in the

presence of a Police officer and under the supervision of such

Police officer.

(1) The execution of all work in connection with the

services given by a distribution services operator shall be carried

out in such manner as may be prescribed by or under this Act or by

or under any other law, and without prejudice to the public safety or

private safety.

(2) Any person who, without lawful excuse, contravenes or

fails to comply with the provision of this article shall be guilty of

an offence under this Act.

(1) No person shall use any electrical energy or any

installation, apparatus, instrument or their accessories, supplied by

a distribution system operator, or any petroleum supplied for sale

or other disposal by or on behalf of the distribution system

operator, whether directly or indirectly, for purposes other than that

for which it is supplied; and any declaration or clear indication by a

distribution system operator as to the purpose for which any thing

as aforesaid has been supplied shall be conclusive evidence of such

purpose.

(2) Any person who contravenes the provision of this article

shall be guilty of an offence against this Act.

Any person who -

(a) obstructs or impedes a member of a distribution

system operator in the exercise of his duties under this

Act or under any regulations made under this Act; or

(b) contravenes or fails to comply with any of the

provisions of this Act or of any such regulations as

aforesaid or any order lawfully given under the

provisions of this Act or of such regulations; or

(c) where any licence or permission is required under the

provisions of this Act or under any regulations made

under this Act, for the use of the services or facilities

of a distribution system operator, makes use of such

services or facilities without such a licence or

permission or contravenes or fails to comply with the

conditions of any such licence or permissions,

ENEMALTA (TRANSFER OF ASSETS, RIGHTS,

LIABILITIES AND OBLIGATIONS)

shall be guilty of an offence under this Act.

(1) Any person guilty of an offence against this Act or

against any regulations, rules or orders made under this Act, shall,

without prejudice to his liability under the Criminal Code or any

other law, be liable, on conviction, to imprisonment for a term not

exceeding six months, or to a fine (multa) not exceeding one

thousand two hundred euro (€1,200), or to both such imprisonment

(2) Where an offence against this Act as is referred to in article

14(c) has been committed, any installation, apparatus, instrument,

plant, equipment or other thing used in or for the purpose of the

commission of the offence shall be forfeited to the Government.

Part III

Miscellaneous

The Minister may, either on the recommendation of the

Authority, or on his own initiative after consultation with the

Authority, make regulations to give better effect to the provisions

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

in particular to

(a) provide for ancillary matters in relation to and in

connection with the transfer of assets and liabilities,

and the rights and obligations of the Corporation to the

Company in accordance with the provisions of article

3;

(b) regulate the manner in which a distribution system

operator is to install any installations, and how these

are to be installed, operated, maintained, protected or

controlled and the technical standards or specifications

to be observed with respect to such installations;

(c) provide for the measures to be taken to ensure

compliance with international and other standards used

in the distribution of electricity and for the means to be

used and the measures to be adopted to ensure safety

and prevent danger, damage or nuisance in relation to

any aspect of the distribution of electricity;

(d) provide for any transitory, consequential, ancillary or

related measures.