AGENCY FOR INFRASTRUCTURE MALTA ACT

CHAPTER 588

AGENCY FOR INFRASTRUCTURE MALTA ACT

AN ACT to make provision for the establishment of the Agency for

Infrastructure Malta and to regulate such activities and provide for matters

ancillary or incidental thereto or connected therewith.

4th September, 2018

ACT XXVIII of 2018. as amended by Act VI of 2020.

The short title of this Act is the Agency for Infrastructure

Malta Act.

PART II

Agency for Infrastructure Malta

The provisions of this Part provide for the establishment of

the Agency for Infrastructure Malta.

(1)

Unless otherwise provided in this Act, the provisions

of article 2 of the Authority for Transport in Malta Act shall apply.

(2)

In this Act unless the context otherwise requires, the

following expressions have the meaning hereby assigned to them

"Act" or "this Act" means this Act and includes any

regulations made thereunder unless the context otherwise

requires;

"Agency" means the Agency for Infrastructure Malta

established under article 4 and includes any person acting on its

behalf under powers delegated by the Agency to that person in

accordance with the provisions of this Act;

"arterial and distributor road" means any road which has

been classified and designated as such by the Authority for

Transport in Malta, which classification and designation may be

amended by the Authority for Transport in Malta from time to

time;

"Board" means the Board of the Agency appointed in

terms of article 8;

"carriageway" means that part of a road which is

principally intended for vehicular traffic;

"Chairperson" means the Chairperson of the Agency and

includes, in the circumstances mentioned in article 8, the

deputy Chairperson;

"Chief Executive Officer" means the Chief Executive

Officer of the Agency appointed under article 8;

"connected person" means a person who is connected to

another person, in this definition referred to as a "Board

member", by virtue of

(a)

being a Board member’s spouse or partner,

child or step-child, parent, cohabitant of whatever nature

in terms of the Cohabitation Act and any other

dependent of that Board member; or

(b)

being a body corporate in which the Board

member or any of the persons mentioned in paragraph

(a) above or both

(i)

holds or hold shares of a nominal

value equal to at least twenty per cent (20%) of

the share capital of that body corporate; or

(ii)

is or are entitled to control the

exercise of more than twenty per cent (20%) of

the voting power at any general meeting of that

body corporate; or

(c)

acting in a capacity as trustee of any trust,

the beneficiaries of which include

(i) the Board member, or any other person

mentioned in paragraph (a) above; or

(ii) a body corporate as set out in

paragraph (b) above; or

(d)

acting in a capacity as a business partner of

that Board member or of any person who, by virtue of

paragraphs (a), (b) or (c) is connected with the Board

member;

"financial year" means a period of twelve months

beginning on the 1 st day of January and ending on the 31 st day

of December of each year;

"footway" means the paved or surfaced area forming

part of a road at one or both borders of a carriageway and which

is intended for pedestrian traffic;

"Local Council" means a local council established under

the Local Government Act;

"local road" means a road which is not designated as an

arterial or distributor road and which is not a private road, and

includes any road which has been classified and designated as

such by the Authority for Transport in Malta, which

classification and designation may be amended by the

Authority for Transport in Malta from time to time;

"maritime infrastructure" includes any ports, piers,

slipways, quays, jetties, landing places, port facilities,

coastlines, piers, docks, mooring platforms, breakwaters and

sea defences, and similar structures in or adjoining the same or

similar places;

AGENCY FOR INFRASTRUCTURE MALTA

"Minister" means the Minister responsible for

Infrastructure as may be vested with responsibility for the

Agency;

"port" means port according to the dispositions in the

Authority for Transport in Malta Act;

"private road" means any way on land, by whatever

name called, which is not the property of the Government and

over which there is generally no public right of passage at all

times of the day but which is accessible to vehicles and, or

pedestrians, whether intended for vehicular and, or pedestrian

traffic or not;

"road" means any way on land, by whatever name

called, over which there is a public right of passage (by

whatever means) and consists of carriageways and footways,

and includes the road’s verge, and any bridge (whether

permanent or temporary) over which, or tunnel through which,

the road passes, and any reference to a road includes any part

thereof, including

(a)

the foundations, sub-surfaces and surface

dressing thereof;

(b)

central strips, roundabouts, traffic islands,

footways and bicycle lanes; and

(c)

road drainage works and access thereto,

trenches and trenching works for utilities including

access thereto, ducting, conducting and the like for the

distribution of utilities or the provision of services,

including works connected therewith or ancillary thereto

and manholes or other means of access to such utilities

or works;

"utility service provider" means an authority or an

enterprise, the primary business of which is to provide

electricity, gas or water, potable or second class water,

including disposal or treatment of sewage, and drainage

services to the public.

Part I: Constitution and functions of the Agency

for Infrastructure Malta

The Agency shall be a body corporate having a distinct legal

personality and shall be capable of entering into contracts, of

acquiring, holding and disposing by whatever title any kind of

property for the purposes of its functions, of suing and being sued, and

of doing all such things and entering into all such transactions as are

incidental or conducive to the exercise of its functions under this Act,

including the borrowing of money.

(1)

Without prejudice to any other power or function

conferred to it by this Act or by any other law, it shall be the function

of the Agency

(a)

to implement national plans for road and

maritime infrastructure construction and road infrastructure

strategies;

(b)

to implement, whether by itself or through any

person or group of persons, in accordance with the provisions of

this Act, applicable strategies or master plans however so

described, relating to road construction and road and maritime

infrastructure;

(c)

to occupy, plan, design, construct, re-construct,

repair, widen and renew any road, maintain the upkeep of,

improve, manage, administer restore any road and maritime

infrastructure and to manage and control any necessary road

works, to do any works however so described, including but not

limited to the planning and programming thereof and the

planning and programming for the rebuilding and restoration of

any existing roads and maritime infrastructure

Provided that the property and undertakings

owned by the Authority for Transport in Malta, or owned by the

Government and used by the said Authority, on which the

Agency shall undertake the mentioned works, shall remain the

Authority’s assets

Provided that where the maintenance of any local

road is by law the responsibility of a local council, the

maintenance of such road shall not, to the extent of such

responsibility, be the function of the Agency

Provided further that the Agency shall have no

obligations in relation to any private roads;

(d)

to erect, construct, develop and maintain on any

road, the following

(i)

poles and light fittings;

(ii)

road traffic safety and management

facilities, including signs or signals, road markings and

traffic calming measures, traffic control and

management equipment, related lighting equipment and

other road traffic facilities used for traffic management

and control

Provided

that

the

operation

and

maintenance of permanent electronic road traffic signs

or signals, electronic traffic measures, electronic traffic

control equipment and related lighting equipment and

any other electronic road traffic facilities used for road

safety and traffic management shall be vested in, and

shall be the sole responsibility of, the Authority for

Transport in Malta;

(e)

to advise the Government on the formulation of

policies relating to road infrastructure in Malta and to make

recommendations to the Government on action which in the

opinion of the Agency would be expedient in relation to matters

within its functions.

(2)

Without prejudice to the above, the Minister may, from time

to time, give to the Agency directions, not inconsistent with the

provisions of this Act, to be followed by the Agency in the carrying

out of its functions under this Act, and the Agency shall, as soon as

practicable, give effect to all such directions.

(3)

It shall be the responsibility of the Minister to ensure that

the Agency is fully informed of strategic directions of Government in

relation to this Act, and it shall be the duty of the Agency through its

proper organs to properly execute such policies.

(4)

For the proper performance of its functions under this Act,

the Agency shall consult with the relevant local council and be

empowered to collaborate with any other person, including other

agencies, public authorities and Government departments, and to make

arrangements for mutual exchange of information and for other forms

of assistance.

(5)

In pursuance of its functions under this Act, the Agency

shall regulate its own procedure.

(1)

The Agency shall have such powers as may be

necessary or conducive for the proper performance and attainment of

all its functions under this Act, and without limitation to the generality

of the foregoing, but subject to any requirements under any other law,

shall have the power and authority to

(a)

acquire, construct, reconstruct, maintain and

operate road installations and equipment;

(b)

acquire, take the necessary measures in terms of

the Land Acquisition (Public Purposes) Ordinance and the

Lands Authority Act to acquire, any property under any title

which the Agency considers necessary for the purposes of

constructing, extending or maintaining any road or road

installation in accordance with the functions of the Agency in

terms of this Act;

(c)

hold and administer any assets from time to time;

(d)

do all acts and things necessary for the opening

and, or breaking up of the surface of any road;

(e)

carry on, whether as principal, as agent or as a

contractor, all such activities as may appear to the Agency

necessary, advantageous or convenient to be carried on for, or

in connection with the proper performance or attainment of any

of the functions of the Agency under this Act or in order to

make the best use of the assets of the Agency;

(f)

contract road works where such road works are to

be commissioned by a utility services provider, the Government

or any authority

Provided that where such works are contracted by

the Agency, this shall be done on behalf and at the expense of

the utility service provider or the Government or any authority

concerned;

(g)

exercise, perform, discharge and delegate all such

rights, powers, duties and functions as are by or under this Act

vested in or assigned to the Agency;

(h)

do all such other acts as are incidental to or

consequential upon the exercise, proper performance and

discharge of its powers, duties and functions, or for the

attainment of its functions, under this Act.

(2)

For the purposes of the proper performance or attainment of

the functions of the Agency under this Act, the Agency may grant to

any third party the right to carry on, engage in, perform, whether in

whole or in part, and whether as operator, concessionaire, manager,

agent, independent contractor or otherwise, any functions, activities,

operations, duties or transactions which the Agency is authorised and

empowered or obliged to carry on or engage in or perform under or in

accordance with this Act

Provided that this sub-article shall not be construed as

exempting the Agency from complying with the requirements of any

applicable law, directive, authorisation, licence or permit.

(3)

In carrying out its functions, the Agency shall

(a)

ensure that it is in possession of any licences,

permits or authorisations howsoever described as may be

required by law and that it complies with any conditions as may

be imposed in any such licences, permits or authorisations

however so described;

(b)

be subject to and abide by any laws, orders,

directives, standards and any other legal requirements however

so described, as may be imposed by or under this Act or any

other law.

(4)

Notwithstanding the provisions of any other law, the use,

ad mi ni stra tio n an d op era tio n o f al l r oads f all in g un der th e

responsibility of the Agency in terms of this Act are vested exclusively

in the Agency.

(5)

The Agency shall, in the carrying out of its functions,

consult with any relevant public authority, including local councils, and

any private entities and establish processes and procedures as well as

working practices, to ensure efficient processes for any road works

that are to be undertaken by the Agency and for any permits to be

issued by any relevant public authority for road works in accordance

with the applicable law.

(1)

The Agency shall be governed by a Board appointed

in accordance with the provisions of this Act.

(2) The Board shall be responsible for the business of the

Agency and for the formulation and implementation of the policy and

strategy of the Agency, and shall give to the Chief Executive Officer

such directions as it deems proper for the proper performance by the

Agency of its functions.

(3)

In particular, but without prejudice to any other duty

assigned to the members of the Board, whether individually or

collectively by this Act or any other law, the members of the Board

shall

(a)

act honestly and in good faith and promote the

best interests of the Agency;

(b)

be obliged to exercise the degree of care,

diligence and skill which would be exercised by a reasonably

diligent person having both

(i)

the knowledge, skill and experience that

may reasonably be expected of a person carrying out the

same functions as are carried out by or entrusted to that

Board member in relation to the Agency; and

(ii)

the knowledge, skill and experience that

that Board member has;

(c)

not make any profit from their position, nor make

personal gain or give any advantage to any third party from

confidential Agency information;

(d)

ensure that their personal interests are not in

conflict with the interests of the Agency;

(e)

not use any property or information of the

Agency for their own benefit or for the benefit of any other

persons, nor obtain benefit in any other way in connection with

the exercise of their powers;

(f)

exercise the powers they have only for the

purposes for which the powers are conferred and not misuse

such powers.

(1)

The Board shall consist of seven (7) members

appointed by the Minister, including the Chief Executive Officer.

(2)

The Minister shall designate one of the appointed members

as Chairperson and another member as deputy Chairperson. The

deputy Chairperson shall have all the powers and perform all the

functions of the Chairperson during his absence or in the event that the

office of the Chairperson becomes vacant.

(3)

The Minister shall select the members from among persons

who appear to him to be qualified by reason of having had experience

of, and shown capacity in, matters relating to the functions of the

Agency under this Act.

(4)

The members shall receive such remuneration as the

Minister may from time to time determine.

(1)

There shall be appointed a secretary to the Board,

who shall be appointed for a period of three (3) years and shall, on the

expiry of the term of appointment, be eligible for re-appointment. If

the secretary is appointed at any time after any one or more members

have already been appointed, the term of appointment of the secretary

shall end on the date being three (3) years after the appointment of the

first member appointed as a member of the Board. The secretary shall

be appointed by the Board.

(2)

The secretary to the Board appointed in terms of sub-article

(1) above shall not be a member of the Board, but shall have the right

to attend Board meetings.

(3)

The secretary to the Board shall be responsible for

maintaining the minutes of meetings of the Board and for keeping and

maintaining such registers and records as the secretary may be

required to keep by the Board.

(4)

The secretary to the Board shall ensure that

(a)

adequate prior notice of all meetings is given to

all members of the Board; and

(b)

all returns and other documents of the Agency are

prepared and delivered in accordance with the requirements of

any applicable law and regulations.

(5)

The provisions of article 12 shall apply to the secretary of

the Board.

(1)

Subject to the provisions of sub-article (3) and article

12, the members of the Board shall hold office for a period of up to

three (3) years and on such terms and conditions as the Minister may

deem appropriate

Provided that a member shall, on the expiry of this term of

appointment, be eligible for re-appointment.

(2)

The Minister may at any time terminate the appointment of

any member of the Board if the Minister considers that such member is

unfit to continue in office or has become incapable of properly

performing the duties of a member of the Board.

(3)

If a member is appointed at any time after any one or more

other members have already been appointed, the term of appointment

of all members shall end on the date being three (3) years after the

appointment of the first member appointed as a member of the Board.

(1)

A natural person shall be disqualified for

appointment to, or to remain a member of the Board if such person

(a)

is a Minister or Parliamentary Secretary; or

(b)

is a Judge or Magistrate of the Courts of Justice;

or

(c)

is legally incapacitated or interdicted; or

(d)

has been declared an undischarged bankrupt or

has made a composition or arrangement with his creditors; or

(e)

is subject to disqualification under article 320 of

the Companies Act or is subject to black-listing as provided in

the Public Procurement Regulations; or

(f)

has any personal financial or business interests in

any business, enterprise or activity which is connected to any of

the functions of the Agency and which is likely to affect his

independence or objectivity in the proper discharge of his

functions as a member of the Board; or

(g)

is a connected person to the person mentioned in

sub-article (f) above.

(2)

Notwithstanding the above or any other provision of this

Act or of any other law, no person occupying a public office or any

office in any agency or body established by law or a company in which

the Government has a controlling interest, shall be disqualified from

occupying the office of Chairperson of the Agency, member of the

Board of the Agency or Chief Executive Officer of the Agency.

(1)

Any member who has a direct or indirect interest in

any contract, proposed contract or in any transaction or arrangement

(whether or not constituting a contract) made or proposed to be made

by or with the Agency, not being an interest which disqualifies such

member under article 11 above from being or remaining a member,

shall disclose the nature of such interest, or, if applicable, the nature of

the interest of a connected person, at the first meeting of the Board

after the relevant facts have come to the knowledge of such member.

(2)

After the disclosure has been recorded in the minutes of the

meeting of the Board, that member shall withdraw from that part or

parts of the meeting at which such contract, proposed contract,

transaction or arrangement however so described is discussed or

decided on by the Board and, in any event, that member shall be

prohibited from voting on such contract, proposed contract,

transaction or arrangement.

(3)

If the Board is of the view that an interest disclosed to it

un der arti cle 12 (1 ) is su ch t ha t i t sa ti sfi es th e g ro un ds fo r

disqualification of a person from being a member of the Board in

terms of article 11(1)(f) or (g) above, the Board shall notify the

Minister in writing, and the Minister shall take such steps as he may

deem necessary in such circumstances, including either (i) notifying

the Board that he disagrees with the Board giving his reasons therefor

or (ii) terminating the appointment of such member pursuant to article

10(2).

(1)

A member of the Board may resign from office at any

time, by letter addressed to the Chairperson and copied to the Minister.

(2)

The appointment of any person as member of the Board and

the termination of office of any such member shall be notified in the

Gazette.

(1)

The meetings of the Board shall be called by the

Chairperson, either on his own initiative or at the request of any two

(2) other members of the Board.

(2)

A minimum of four (4) members of the Board shall

constitute a quorum at any meeting. Decisions shall be adopted by a

simple majority of the votes of the members present and voting. The

Chairperson shall have an initial vote and, in the event of an equality

of votes, a casting vote.

(3)

Subject to the provisions of this Act, the Board may regulate

its own procedure.

(4)

Subject to the foregoing provisions of this article, no act or

proceeding of the Board shall be invalidated merely by reason of the

existence of any vacancy among the members, provided that the

minimum number of Board members in terms of sub-article (2) has

been satisfied.

(5)

Notwithstanding that there occurs some defect in the

appointment of or qualification to be appointed as a member of the

Board, all acts done by a person acting in good faith as a member of

the Board shall be valid as if he were a member duly appointed and, or

qualified.

(1)

The Minister may, in relation to matters that appear

to him to affect the public interest, from time to time, give to the

Agency directions of a general or of a specific character, not

inconsistent with the provisions of this Act, on the policy to be

followed or other action to be taken in the carrying out of the functions

vested in the Agency by or under this Act, and the Board shall, as soon

as practicable, give effect to all such directions.

(2)

The Board shall afford to the Minister facilities for

obtaining information with respect to the property and activities of the

Agency and furnish him with returns, accounts and other information

with respect thereto, and afford to him facilities for the verification of

information furnished, in such manner and at such times as he may

reasonably require.

(1)

The legal and judicial representation of the Agency

shall vest in the Chairperson

Provided that the Agency may appoint any one (1) or more

persons to appear in the name and on behalf of the Agency in any

proceedings and in any act, contract, instrument or other document

whatsoever, with such powers, authorities and under such terms and

conditions as the Board may determine from time to time, which

powers shall include the power of delegation.

(2)

Any document purporting to be an instrument made or

issued by the Agency and signed by the Chairperson or by any officer

delegated by the Board on behalf of the Agency shall be received in

evidence and shall, until the contrary is proved, be deemed to be an

instrument made or issued by the Agency.

(1)

The Chief Executive Officer shall be a member of the

Board and shall be the most senior executive of the Agency and shall

be responsible and accountable directly to the Board for the executive

conduct of the Agency.

(2)

Without limitation to the generality of the foregoing, the

responsibilities of the Chief Executive Officer shall include

(i)

the administration and organisation of the

Agency;

(ii)

the administrative control of the officers and

other employees of the Agency;

(iii) the implementation of the business plan of the

Agency, its objectives and budget;

(iv) upholding, promoting and fostering among the

Agency, its officers and its employees, the public service values

and those specific to the role of the Agency; and

(v)

such other functions as may from time to time be

conferred or delegated to him by the Board.

(3)

The Chief Executive Officer shall have such powers as are

necessary from time to time for the performance of the functions

vested in him by this Act, and such other powers as may be conferred

or delegated to him by the Board.

(1)

Without prejudice to the other provisions of this Act,

the appointment of officers and other employees of the Agency shall

be made by the Chief Executive Officer, in accordance with the

policies and directions of the Board from time to time.

(2)

The Chief Executive Officer shall appoint and employ, at

such remuneration and upon such terms and conditions as may be

determined by the Board, such officers and employees of the Agency

as may from time to time be necessary for the due and efficient

discharge of the functions of the Agency.

(3)

Notwithstanding the provisions of this article, the Prime

Minister may, from time to time on the recommendation of the Chief

Executive Officer of the Agency, direct that any public officer shall be

detailed for duty with the Agency in such capacity and with effect

from such date as may be specified in the direction of the Prime

Minister.

(1)

Where any public officer is detailed for duty with the

Agency under article 18(3) above, such officer shall, during the time in

which such direction has effect in relation to him, be under the

administrative authority and control of the Agency but he shall for all

intents and purposes remain and be considered and treated as a public

officer.

(2)

Without prejudice to the generality of the foregoing, a

public officer detailed for duty as aforesaid

(a)

shall not during the time in respect of which he is

so detailed

(i)

be precluded from applying for a transfer

to a Government department however so described in

accordance with the terms and conditions of service

attached to the appointment held by him under the

Government on the date on which he was so detailed for

duty; or

(ii)

receive remuneration and be subject to

conditions of service which are less favourable than

those attached to the appointment under the Government

held by him on the date aforesaid or which would have

become attached to such appointment, during the said

period, had such officer not been detailed for duty with

the Agency; and

(b)

shall be entitled to have his service with the

Agency considered as service with the Government for the

purposes of any pension, gratuity, or benefit under the Pensions

Ordinance and the Widows’ and Orphans’ Pensions Act and for

the purpose of any other right or privilege to which he would

have been entitled, and responsible for any liability for which

he would have been answerable, but for the fact of his being

detailed for duty with the Agency.

(3)

Where an application is made as provided in sub-article

(2)(a)(i) above, the same consideration shall be given thereto as if the

applicant had not been detailed for service with the Agency.

(4)

The Agency shall pay to the Government such contributions

as may from time to time be determined by the Minister responsible

for finance in respect of the cost of pensions and gratuities earned by

an officer detailed for duty with the Agency as aforesaid during the

period in which he is so detailed.

(1)

The Agency may, with the approval of the Prime

Minister, offer permanent employment with the Agency to any officer

detailed for duty with the Agency under article 18(3) at the

remuneration and on terms and conditions not less favourable than

those enjoyed by such officer on the date of such offer.

(2)

The terms and conditions of any permanent employment

offered by the Agency under the provisions of sub-article (1) shall not

be deemed to be less favourable merely because they are not in all

respects identical or superior to those enjoyed by the public officer

concerned on the date of such offer, if such terms and conditions, taken

as a whole, in the opinion of the Prime Minister offer substantially

equivalent or greater benefits.

(3)

Every public officer who accepts permanent employment

with the Agency offered to him under the provisions of sub-article (1)

shall, for all purposes other than those of the Pensions Ordinance and

of the Widows’ and Orphans’ Pensions Act, and saving the provisions

of article 21, be deemed to have ceased to be in service with the

Government and to have entered into service with the Agency on the

date of his acceptance, and for the purposes of the said Ordinance and

of the said Act, so far as applicable to him, service with the Agency

shall be deemed to be service with the Government within the

meanings thereof respectively.

(4)

Every such public officer as aforesaid who, immediately

before accepting permanent employment with the Agency was entitled

to benefit under the Widows’ and Orphans’ Pensions Act, shall

continue to be so entitled to benefit thereunder for all intents as if his

service with the Agency were service with the Government.

(5)

The Agency shall pay to the Government such contributions

as may from time to time be determined by the Minister responsible

for finance in respect of the cost of pensions and gratuities earned by

an officer who has accepted permanent employment with the Agency

as aforesaid during the period commencing on the date of such

officer’s acceptance.

The members of the Board of the Agency and all officers

and employees detailed with the Agency under the provisions of

article 18(3), but excluding any officer who accepts permanent

employment with the Agency in accordance with the provisions of

article 20, shall be deemed to be public officers or employees within

the meaning of the Criminal Code.

Part II: Financial Provisions

(1)

The Agency shall cause to be prepared in every

financial year, and shall not later than four (4) weeks after the end of

each such year adopt, estimates of the income and expenditure of the

Agency for the next following financial year and submit them for the

consideration of the Minister in accordance with norms and practices

established by the Minister responsible for finance.

(2)

The Agency shall be funded by the Government out of the

Consolidated Fund through such sums as the House may from time to

time authorise and through such sums as may be authorised by any

other law, to be appropriated to meet the cost of its operational and

capital expenditure identified in its financial business plan or budget.

(3)

Any excess of revenue over expenditure shall, subject to

such directives as the Minister may, after consultation with the

Minister responsible for finance, from time to time give, be applied by

the Agency to the formation of reserve funds to be used for the

purposes of the Agency, and without prejudice to the generality of the

powers given to the Minister by this sub-article, any directive given by

the Minister as aforesaid may order the transfer to the Government, or

the application of such funds in such manner as may be specified in the

directive.

(4)

Any funds of the Agency not immediately required to meet

expenditure may be invested in such manner as may from time to time

be approved by the Board.

(1)

The Agency shall keep proper accounts and other

records in respect of its operations and shall cause to be prepared a

statement of accounts in respect of each financial year.

(2)

The accounts of the Agency shall be audited by an auditor or

auditors to be appointed by the Agency and approved by the Minister

Provided that the Minister responsible for finance may, after

consultation with the Minister, require that the books and accounts of

the Agency be audited or examined by the Auditor General who shall

for this purpose have the power to carry out such physical checking

and any other certifications as he may deem necessary.

(3)

After the end of each financial year, and not later than six

(6) months, the Agency shall cause a copy of the statement of accounts

duly audited to be transmitted to the Minister and to the Minister

responsible for finance, together with a copy of any report made by the

auditors on that statement or on the accounts of the Agency.

(4)

The Minister shall cause a copy of every such statement and

report to be laid on the Table of the House as soon as practicable.

(1)

The Agency shall, not later than six (6) months after

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

the Minister responsible for finance, a report dealing generally with

the activities of the Agency during that financial year and containing

an audited statement of accounts together with such information

relating to the proceedings and working of the Agency as either of the

Ministers may from time to time require. The Minister shall cause a

copy of every such report to be laid on the Table of the House as soon

as practicable.

The Agency shall be exempt from any liability for the

payment of income tax and duty on documents under any law for the

time being in force.

Part III: Liability for injury or damage

(1)

In any action in respect of injury or damage sustained

by any person or property resulting from the failure to maintain a road,

such actions shall be instituted against

(i)

the Authority for Transport in Malta in relation to

any injury or damage sustained by any person or property at the

time when before the order in article 27(1) the relevant road fell

within its responsibility in terms of applicable legislation;

(ii)

the Agency in relation to any injury or damage

sustained by any person or property at the time when after the

order in article 27(1) the relevant road is within its responsibility

in terms of applicable legislation; and

(iii) a local council in relation to any injury or damage

sustained by any person or property at the time when the

relevant road is within its responsibility in terms of applicable

legislation and the orders in article 27(2) and (3) respectively as

applicable

Provided that where a road is classified as a local

road in accordance with applicable legislation and is to any

extent the responsibility of a local council in terms of the Local

Government Act, the responsibility for such local road shall

not, to the extent of such responsibility, be the function of the

respective local council if the works are of an extraordinary

nature and in such case the Agency will be responsible thereof.

(2)

In either of the cases mentioned in sub-article (1) above in

relation to the Authority for Transport in Malta, the Agency or local

council as the case may be, it shall be a defence to prove that

(a)

the Authority for Transport in Malta, the Agency

or local council, as the case may be, had taken such care as in

the circumstances was reasonably required to secure that the

part of the road to which the action relates was not dangerous

for traffic; or

(b)

that the injury or damage resulted -

(i)

from works carried out on or under that

part of the road to which the action relates; and

(ii)

from an event which occurred before the

completion of the re-instatement or making good of that

part of the road in accordance with any relevant

requirement.

(3)

For the purposes of a defence under sub-article (2)(a) above,

the court shall in particular have regard to the following

(a)

the character of the road, and the traffic which

was reasonably expected to use it;

(b)

the standard of maintenance appropriate for a

road of that character and used by such traffic;

(c)

the state of repair in which a reasonable person

would have expected to find the road;

(d)

whether the Authority for Transport in Malta,

Agency or local council, as the case may be, knew or could

reasonably have been expected to know that the condition of the

part of the road to which the action relates was likely to cause

danger to users of the road;

(e)

where the Authority for Transport in Malta, the

Agency or local council, as the case may be, could not

reasonably have been expected to repair that part of the road

before the cause of action arose, what warning notices of its

condition had been displayed

Provided that for the purposes of such a defence,

it shall not be relevant to prove that the Authority for Transport

in Malta, the Agency or local council, as the case may be, had

arranged for an authorised contractor to carry out or supervise

the maintenance of the part of the road to which the action

relates, unless it is also proved that the Authority for Transport

in Malta, the Agency or local council as the case may be, had

given that contractor written instructions with regard to the

maintenance of the road and that it had carried out the

instructions.

Part IV: Transitory Provisions

(1)

The Minister shall by order in the Gazette, bring into

effect articles 5, 6 and Part III of this Act and thereby automatically

transfer such functions and powers set out in articles 5 and 6 which are

currently vested in the Authority for Transport in Malta to the Agency

in accordance with the provisions of this Act. As of the date upon

which the functions or powers so transferred from the Authority for

Transport in Malta to the Agency become effective, the Authority for

Transport in Malta shall have no further liability or responsibility for

the discharge or carrying out of such functions or powers.

(2)

The Minister shall, by order in the Gazette and after articles

5 and 6 and Part IV of this Act become effective, transfer to the

Agency such functions and powers with respect to roads which are

vested in local councils under the Local Government Act, in

accordance with the provisions of this Act. The Minister may affect

such transfer in either one or a series of schemes with respect to such

roads as are to be set out in the order in the Gazette, and in such

manner as the Minister considers most appropriate and expedient for

the better attainment of the objectives of this Act

Provided that until such time as the responsibility for a road

is transferred to the Agency in accordance with the provisions of this

article, the responsibility for that road shall remain with the local

council vested with that responsibility in accordance with applicable

legislation.

(3)

The Minister may, from time to time by legal notice, re-

transfer certain functions and powers for the maintenance and upkeep

of local roads to local councils if it appears to the Minister that such

re-transfer of those functions and powers is appropriate or expedient

for the better maintenance and upkeep of those local roads

Provided that where a road is classified as a local road in

accordance with applicable legislation and is to any extent the

responsibility of a local council in terms of the Local Government Act,

the responsibility for such local road shall not, to the extent of such

responsibility, be the function of the respective local council upon the

transfer thereof by the Agency, until such date as the Minister so

prescribes pursuant to a legal notice re-transferring such

responsibilities under this Act.

Where before the date of the coming into force of any part

of this Act there are any pending contracts concluded by the Authority

for Transport in Malta with third parties relating to any of the

functions transferred to the Agency by or under this Act, any such

contract shall be transferred to the Agency who shall, as from the date

of coming into force of this Act as aforesaid, substitute the Authority

for Transport in Malta as a party to the respective contract.

Where before the date of the coming into force of any part

of this Act there are any pending lawsuits, claims, final court

judgments, damages, penalties, fines, liabilities, demands and, or

losses, against the Authority for Transport in Malta relating to any of

the functions transferred to the Agency by or under this Act as from

the date of the coming into force of this Act as aforesaid, the Authority

for Transport in Malta shall remain solely responsible therefor, without

any liability on the part of the Agency

Provided that, save for the provisions of article 26, if a

claim, sanction, or recovery order is made with respect to a project in

connection to any road that was undertaken by the Authority for

Transport in Malta, then any liability, cost, or expense that may

eventually arise with respect to such project shall remain at the charge

of the Authority for Transport in Malta.