NATIONAL FOREIGN DIRECT INVESTMENT SCREENING OFFICE ACT

SCREENING OFFICE

CHAPTER 620

NATIONAL FOREIGN DIRECT INVESTMENT

SCREENING OFFICE ACT

AN ACT to provide for the establishment of an Office to be known as

the National Foreign Direct Investment Screening Office, and for the

exercise by or on behalf of that Office of regulatory functions

regarding the screening mechanism of foreign direct investments in

Malta on grounds of security or public order, and to make provisions

with respect to matters ancillary thereto or connected therewith.

11th October, 2020

ACT LX of 2020.

(1)

The short title of this Act is the National Foreign

Direct Investment Screening Office Act.

(Articles 11 and 12)

Activities

(a)

critical infrastructure, whether physical or virtual, including

energy, transport, water, health, communications, media, data

SCREENING OFFICE

processing or storage, aerospace, defence, electoral or financial

infrastructure, and sensitive facilities, as well as land and real estate

crucial for the use of such infrastructure;

(b)

critical technologies and dual use items as defined in point 1

of Article 2 of Council Regulation (EC) No. 428/2009 (15), including

artificial intelligence, robotics, semiconductors, cybersecurity,

aerospace, defense, energy storage, quantum and nuclear technologies,

as well as nanotechnologies and biotechnologies;

(c)

supply of critical inputs, including energy or raw materials,

as well as food security;

(d)

access to sensitive information, including personal data, or

the ability to control such information; or

(e)

the freedom and pluralism of the media.

Factors to be considered

(a)

whether the foreign investor is directly or indirectly

controlled by the government, including state bodies or armed forces,

of a third country, including through ownership structure or significant

funding;

(b)

whether the foreign investor has already been involved in

activities affecting security or public order in a Member State; or

(c)

whether there is a serious risk that the foreign investor

engages in illegal or criminal activities.

In this Act, unless the context otherwise requires

"beneficial owner" means any natural person or persons

who ultimately own or control the customer and, or the natural

person or persons on whose behalf a transaction or activity is

being conducted, and

(a)

in the case of a body corporate or a body of

persons, the beneficial owner shall consist of any natural

person or persons who ultimately own or control that

body corporate or body of persons through direct or

indirect ownership of ten percent (10%) plus one (1) or

more of the shares or more than ten percent (10%) of the

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voting rights or an ownership interest of more than ten

percent (10%) in that body corporate or body of persons,

including through bearer share holdings, or through

control through other means, other than a company that

is listed on a regulated market which is subject to

disclosure requirements consistent with European Union

law or equivalent international standards which ensure

adequate transparency of ownership information

Provided that a shareholding of ten percent

(10%) plus one (1) share or more, or the holding of an

ownership interest or voting rights of more than ten

percent (10%) in the customer shall be an indication of

direct ownership when held directly by a natural person,

and of indirect ownership when held by one (1) or more

bodies corporate or body of persons or through a trust or

a similar legal arrangement, or a combination thereof

Provided further that if after having exhausted all

possible means and provided there are no grounds of

suspicion, no beneficial owner in terms of this paragraph

has been identified, subject persons shall consider the

natural person or persons who hold the position of senior

management official or officials to be the beneficial

owners, and shall keep a record of the actions taken and

any difficulties encountered to determine who the

beneficial owner is in terms of this paragraph;

(b)

in the case of trusts, the beneficial owner shall

consist of

(i)

the settlor or settlors;

(ii)

the trustee or trustees;

(iii)

the

protector

or

protectors,

where

applicable;

(iv) the beneficiaries or the

class

of

beneficiaries, as may be applicable; and

(v)

any other natural person exercising

ultimate control over the trust by means of direct or

indirect ownership or by other means;

(c)

in the case of legal entities such as foundations

and legal arrangements similar to trusts, the beneficial owner

shall consist of the natural person or persons holding equivalent

or similar positions to those referred to in paragraph (b);

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"Board" means the Board established in accordance to

sub-article 5(2);

"Chairperson" means the Chairperson of the Board;

"Commission" means the Commission of the European

Union as established in the Treaty of the European Union;

"cooperation mechanism" means such mechanism as

established in articles 6 and 7 of the Regulation, as the case

may be;

"Council" means the Council of the European Union as

established in the Treaty of the European Union;

"European Union" shall have the same meaning

assigned to it by article 2 of the European Union Act;

"foreign direct investment" means an investment of any

kind by a foreign investor aiming to establish or to maintain

lasting and direct links in order to carry on an economic activity

in Malta, including investments which enable effective

participation in the management or control of a company

carrying out an economic activity and any investments made

pursuant to a public procurement process;

"foreign direct investment undergoing screening" means

a foreign direct investment undergoing a formal assessment or

investigation pursuant to the screening mechanism;

"foreign investor" means a natural person or an

undertaking of a third country intending to make or having

made a foreign direct investment in Malta;

"General Data Protection Regulation" means 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;

"group company" means, in relation to any company,

any body corporate which is that company’s subsidiary or

parent company, or a subsidiary of that company’s parent

company, and the definition "group" shall be construed

accordingly as well as meaning a parent undertaking and all its

subsidiary undertakings;

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

article 124 of the Constitution;

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"management or control" means having the possibility

of exercising decisive influence on an undertaking, in

particular

(a)

through ownership or the right to use all or

part of the assets of an undertaking; or

(b)

through rights or contracts which confer

decisive influence on the composition, voting or

decisions of the organs of an undertaking; provided that

even persons or undertakings not holding such rights or

entitled to such rights under the contract concerned are

deemed to have acquired control if they have the power

to exercise the rights deriving therefrom;

"Member State" means a member state of the European

Union;

"Minister" means the Minister responsible for

investment and includes, to the extent of the authority given,

any person authorised to act on his behalf for any purpose of

this Act;

"Office" means the National Foreign Direct Investment

Screening Office established in accordance to article 5(1);

"procurement" means acquisition by means of a public

contract of works, supplies or services by one or more

contracting authorities from economic operators chosen by

those contracting authorities, whether or not the supplies, works

or services are intended for a public purpose;

"Regulation" means Regulation (EU) 2019/452 of the

European Parliament and of the Council of 19 March 2019

establishing a framework for the screening of foreign direct

investments into the European Union;

"screening" means a procedure intended to assess,

investigate, authorise, condition, prohibit or unwind foreign

direct investments;

"screening decision" means a measure adopted in

application of the screening mechanism;

"screening mechanism" means an instrument of general

application, such as a law or regulation, and accompanying

administrative requirements, implementing rules or guidelines,

setting out the terms, conditions and procedures to assess,

investigate, authorise, condition, prohibit or unwind foreign

direct investments on grounds of security or public order;

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"Tribunal" means the Administrative Review Tribunal

as established by means of the Administrative Justice Act;

"third country" means any country which is not a

Member State of the European Union;

"undertaking of a third country" means an undertaking

constituted or otherwise organized under the laws of a third

country;

"unwind" means the revocation, modification and, or

termination of a foreign direct investment, or part thereof, by

means of an order adopted as part of the screening mechanism.

This Act implements the Regulation (EU) 2019/452 of the

Eu ropean P arliam ent and o f the Cou ncil of 1 9 March 20 19

establishing a framework for the screening of foreign direct

investments into the Union.

PART II

Applicability

(1)

Subject to the provisions of sub-article (2), the

provisions of this Act shall apply to foreign direct investments made or

planned to be made in Malta and to all persons involved in a foreign

direct investment, including foreign investors aiming to establish or to

maintain lasting and direct links in order to carry on an economic

activity in Malta, including investments which enable effective

participation in the management or control of a company carrying out

an economic activity.

(2)

This Act shall not apply to portfolio investments.

PART III

Establishment, Function and Conduct of Affairs of the National

Foreign Direct Investment Screening Office

(1) There shall be established an office to be designated as

the National Foreign Direct Investment Screening Office.

(2)

There shall be a Board which shall direct and be responsible

for the affairs of the Office.

(3)

The Board shall consist of a minimum of five (5) and a

maximum of seven (7) members to be appointed by the Minister, who

shall designate one (1) of the said members to be the Chairperson.

(4)

(a)

A person shall not be eligible to be appointed or to

hold office as Chairperson or as a member of the Board if he is

(i)

a Minister, Parliamentary Secretary, a member of

the House of Representatives or a member of any local council;

SCREENING OFFICE

(ii)

a Judge or a Magistrate of the Courts of Justice;

(iii)

legally incapacitated;

(iv) has been declared bankrupt or had entered into a

composition agreement or arrangement with his creditors;

(v)

has committed an offence involving fraud, or has

contravened any provision of law designed for protecting

members of the public against financial loss due to dishonesty,

incompetence or malpractice by persons involved in business

activities or in carrying on a profession, or has engaged in any

business practice appearing to the Minister to be deceitful or

oppressive or otherwise improper (whether unlawful or not) or

which otherwise reflects discredit on his methods of conducting

business or his profession; or

(vi) is otherwise not a fit and proper person to hold

such office.

(b)

In determining whether a person is a fit and proper

person under paragraph (a)(vi), the Minister shall have regard to that

person’s integrity, to his competence and soundness of judgment for

fulfilling the responsibilities of that office, to the diligence with which

he is fulfilling or is likely to fulfil those responsibilities and to whether

the interests of any person are, or are likely to be in any way

threatened by holding that office.

(c)

Any person whom the Minister has appointed or

proposes to appoint as a member of the Board shall, whenever

requested by the Minister to do so, furnish to him such information as

the Minister considers necessary for the performance of the Minister’s

duties under paragraphs (a) and (b).

(5) Without prejudice to sub-articles (6) and (7), members of

the Board shall be appointed for a term of two (2) years, and may be

re-appointed for a further period or periods of two (2) years.

(6)

A member of the Board may resign his office at any time by

giving notice in writing to the Minister.

(7)

The Minister may at any time remove a member of the

Board on grounds of proved inability to perform his functions,

bankruptcy or neglect of duty or for any of the reasons listed in sub-

paragraphs (i) to (vi) of sub-article (4)(a).

(8)

The quorum necessary for meetings of the Board shall be

the Chairperson and half of the remaining members forming part of the

Board.

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(9)

The Minister shall designate a person to act as the secretary

of the Board

Provided that the Minister or a representative on his behalf

may appoint a substitute secretary in the following cases

(a)

in cases of urgency if the designated secretary is,

for whatsoever reason, not available to perform his duties; and

(b)

in cases where the designated secretary abstains

for the same reasons that a member of the Board may abstain as

mentioned above.

(10) Every member of the Board shall have one (1) vote each and

the Chairperson shall be entitled to a casting vote.

(11) The Chairperson, the members of the Board and the

Secretary shall be paid such honorarium as the Minister may

determine.

The Office shall be a body corporate having a distinct legal

personality and shall be capable, subject to the provisions of this Act,

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

performance of its functions under this Act.

The legal and judicial representation of the Office shall be

vested in the Chairperson of the Board

Provided that the Chairperson may, from time to time,

appoint any one or more of the Board members, or any one or more of

the officers or employees of the Office, to appear in the name and on

behalf of the Office in any judicial proceedings or on any act, contract,

instrument or other document whatsoever.

(1)

Subject to any other provisions of this Act, the Board

may regulate its own procedure and set meetings in such a manner as it

deems proper.

(2)

The Board shall meet at least once (1) every calendar

quarter.

(3)

The Board may exercise its functions notwithstanding any

vacancy in its membership, as long as such vacancies do not exceed

three (3) in number.

(4)

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

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

existence of any vacancy among the members.

SCREENING OFFICE

(1)

The functions and duties of the Office shall be to

(a)

establish and update a mechanism to screen

foreign direct investments carried out in Malta which may

affect the security or public order of Malta;

(b)

establish and implement appropriate rules of

procedure to be followed in executing its obligations emanating

from this Act;

(c)

commence ex officio investigations when deemed

necessary in accordance with this Act;

(d)

act as the relevant body concerning screening of

foreign direct investment in Malta;

(e)

carry out screening procedures of foreign direct

investments falling under this Act;

(f)

assess, investigate, authorise, condition, prohibit

or unwind a foreign direct investment on grounds of security or

public order in Malta;

(g)

implement a screening decision as defined in this

Act;

(h)

impose any obligation in order to ensure

adherence with conditions that may be imposed as part of a

screening decision;

(i)

perform monitoring as part of a condition that

may be imposed as part of a screening decision;

(j)

report annually to the Commission the foreign

direct investments that took place in Malta for the preceding

calendar year and the information provided to requests received

from Member States;

(k)

provide to the Commission any information that

may be duly justified in terms of this Act and the Regulation;

(l)

establish and implement the system by which

Malta shall participate in the cooperation mechanism

established in the Regulation;

(m) participate in the cooperation mechanism

established in the Regulation, as deemed necessary;

(n)

liaise with responsible authorities of third

countries on issues relating to the screening of foreign direct

investments;

SCREENING OFFICE

(o)

charge any such fee which may be deemed

reasonable and justifiable for the carrying out of the functions

of the Office;

(p)

exercise such other functions and duties as may

be prescribed.

(2) In its deliberations on specific cases or investments, the

Office may require the input of persons engaged in the public sector.

Furthermore, the Office may also request appropriate expertise from,

or collaboration with, third parties, as it may deem necessary and may

enter into agreements with public entities in order to carry out its

functions in terms of sub-article (1)

Provided that persons engaged in the public sector shall be

obliged to provide any information that may be requested from them in

terms of this sub-article within ten (10) working days from receipt of

request.

(3)

In the exercise of its powers and functions under this Act,

the Office shall have the right of access to all relevant information, and

may seek clarifications and explanations that it may deem necessary

for its deliberations and conclusions.

(4)

Save as may be otherwise required for the purposes of this

Act, in the exercise of its powers and functions under this Act, the

Office shall act in a transparent and non-discriminate manner

Provided that in ensuring the transparency and non-

discrimination of the process, the Office shall not prejudice the

commercial sensitivity of the foreign direct investment.

(5)

Any information which the Office may obtain in terms of

this Act shall be used only for the purpose for which it was originally

obtained.

(6)

Save as may be otherwise required for the purposes of this

Act or any other applicable law, or in the course of a prosecution for

any offence committed in relation to this Act, or where ordered by the

Courts of Justice, or where the Prime Minister otherwise directs

(a)

every person having an official duty or being

employed in the administration of this Act shall regard and deal

with all documents and information relating to matters

contemplated by or pursuant to the provisions of this Act as

secret and confidential and shall make and subscribe before a

Commissioner for Oaths a declaration on oath to this effect in

the form prescribed which shall be deposited with the State

Advocate;

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(b)

no such person shall be required to produce to or

before any court, tribunal, board, committee of enquiry or any

other authority, or to divulge to any court, tribunal, board,

committee or any other authority, any matter or thing coming to

his notice or being in his possession in the performance of his

duties under this Act.

(7)

Notwithstanding the provisions of sub-article (6), the

internal auditor of the Office shall have access to any records and

documents as may be necessary for the performance of his duties, as

the law may allow.

(8)

Any person who, except as provided for or allowed under

this Act or for the purposes thereof, communicates or attempts to

communicate to any other person any matter or thing that came to his

attention or was in his possession in the performance of his duties as

an officer or employee of the Office in accordance to this Act, shall be

guilty of an offence and on conviction, shall be liable to a fine (multa)

of not less than one thousand euro (€1,000) and not more than twenty

thousand euro (€20,000), or to imprisonment for a period not

exceeding six (6) months, or to both such fine and imprisonment.

Any officer or employee of the Office who has any direct or

indirect interest in any foreign direct investment made or planned to be

made and where the officer or employee is involved in any manner in

the determinations made in terms of article 12, shall, as soon as this

comes to his knowledge, disclose the nature of his interest with the

Board, and the Board shall, at its sole discretion, decide whether the

officer or employee may be involved or otherwise in the process

leading to the mentioned determination

Provided that where an officer or employee does not

disclose such interest, the Board may at its sole discretion, suspend or

dismiss such an officer or employee and impose such penalty as it

deems fit while taking into consideration the level of interest of that

officer or employee in the foreign direct investment in question.

PART IV

Notification and the Screening Process

(1)

In the following circumstances, foreign investors and

all persons involved in a foreign direct investment shall be obliged,

prior to carrying out the investment or effecting any changes

mentioned in paragraphs (b), (c) or (d), to notify the Office with the

investment and provide information regarding the entity carrying out

the investment and any information which may be necessary for the

proper observance of this provision or which may be requested by the

Office

(a)

where an investment that affects any of the

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factors or activities mentioned in the Schedule is planned to be

carried out in the future;

(b)

where, having carried out an investment in Malta,

plan to change the business activity of the foreign investor to

one which affects any of the factors or activities mentioned in

the Schedule;

(c)

where, having carried out an investment in Malta

which affects any of the factors or activities mentioned in the

Schedule, the ownership structure of the investor changes such

that at least ten percent (10%) is owned by foreign investors; or

(d)

where, having carried out an investment, the

direct or indirect controlling interest of the company or the

group company changes and passes onto a foreign investor.

(2)

The information referred to in sub-article (1) shall include

(a)

the ownership structure of the foreign investor

and of the undertaking in which the foreign direct investment is

planned to be made or has been made, including information on

the ultimate investor and, or beneficial owner and participation

in the capital;

(b)

the approximate value of the foreign direct

investment;

(c)

the products, services and business operations of

the foreign investor and of the undertaking in which the foreign

direct investment is planned or has been completed;

(d)

the jurisdictions, including Member States, in

which the foreign investor and the undertaking in which the

foreign direct investment is planned or has been completed

conduct relevant business operations;

(e)

the funding of the investment and its source;

(f)

the date when the foreign direct investment is

planned to be completed or has been completed; and

(g)

any other information as the Office may

reasonably require for the proper execution of its functions in

accordance with this Act.

(3)

Any undertaking, organization, foundation or other entity

wherein at least ten percent (10%) of its share is owned by a foreign

investor and, or where the beneficial owner of the foreign investor is a

third country national or an undertaking of a third country and, or

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which has any direct or indirect controlling interest by a foreign

investor and which plans to carry out any investment mentioned in

sub-article (1) shall, for the purposes of this Act, be subject to the

obligation stated in sub-article (1).

(4)

For the purposes of sub-article (3), a foreign investor’s

proportion of the aggregate ownership in an undertaking, organization,

foundation or other entity shall include any shares owned by

(a)

an undertaking, organization, foundation or other

entity belonging to the same foreign investor;

(b)

an undertaking, organization, foundation or other

entity belonging to the same group company as the foreign

investor; or

(c)

a member of the foreign investor’s family, who is

related to the foreign investor by consanguinity or affinity in

the direct line in any degree or in the collateral line up to the

third degree inclusively or by an undertaking, organization,

foundation or other entity over which such a family member

exercises authority.

(1) The Office shall upon receipt of the notification

mentioned in article (5) and not later than five (5) working days from

the mentioned receipt, determine whether the foreign direct investment

shall be subject to screening.

(2)

In reaching its decision, the Office may request any

necessary additional information from the foreign investor and may

seek the clarifications and explanations that it may deem necessary for

its deliberations and conclusions. The process initiated in terms of sub-

article (1) and the time-frame established therein shall be suspended

until all the information and clarifications requested are duly provided

to the Office.

(3)

Saving that provided in sub-article (2), where the Office

concludes that the foreign direct investment shall not be subject to

screening, it shall, within five (5) working days from the date of its

decision, inform the foreign investor of its decision.

(4)

Where the Office concludes that the foreign direct

investment shall be subject to screening, according to the non-

exhaustive list of factors and activities mentioned in the Schedule, it

shall inform the foreign investor within five (5) working days from the

date of its decision, trigger the cooperation mechanism, and shall

within sixty (60) calendar days from the date of the decision rendering

the investment subject to screening, determine whether the foreign

direct investment may affect the security or public order of Malta

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Provided that where it deems necessary, the Office may

extend the period required to determine whether the foreign direct

investment may affect security or public order of Malta.

(5)

In reaching the decision mentioned in sub-article (4), the

Office may request any additional information that may be required

from the foreign investor and the process initiated in terms of the same

sub-article and the time-frame established therein shall be suspended

until all the information requested is duly provided.

(6)

Where, following the process conducted in terms of sub-

article (4), the Office concludes that the foreign direct investment does

not affect the security or public order of Malta, it shall, within five (5)

working days from the date of its decision, inform the foreign investor

with the decision.

(7)

Where the Office concludes that the foreign direct

investment affects the security or public order of Malta, it may

condition, prohibit or unwind such an investment, as the case may be,

and shall inform the foreign investor in writing with its decision. The

notification with the decision shall include a simple reasoned

justification.

(8)

Where an investment is conditioned, prohibited or unwound

pursuant to a decision of the Office in terms of sub-article (7), the

foreign investor and any other person, undertaking, organization,

foundation or other entity having an interest in the said investment

shall not be entitled to claim any compensation or reimbursement for

whatsoever reason.

(9)

In conducting the processes mentioned in sub-articles (1)

and (4), the Office may obtain further information and statements from

other public authorities, to the extent deemed necessary.

(10) Where the information provided by the foreign investor is

considered by the Office as being incorrect, or where the foreign

investor, having been informed that the information provided is

incomplete, fails to provide the requested information within twenty

(20) days from the day of service of a request by the Office, the

screening process shall cease, the application shall be withdrawn and

the investment shall be unwound. The foreign investor and any other

person, undertaking, organization, foundation or other entity having an

interest in the said investment shall not be entitled to any form of

compensation or reimbursement, for whatsoever reason.

(1) Where any notice, decision or other instrument or

document whatsoever is required or authorised to be served or given in

accordance to this Act, it may be served or given in any of the

following manners

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(a)

by delivering it to the person on whom it is to be

served or to whom it is to be given;

(b)

by leaving it at the usual or last known place of

abode of that person, or at his place of work, or if such person

has furnished an address for service, at that address;

(c)

by sending it by means of a registered letter

addressed to that person at the place of abode or the address for

service aforesaid;

(d)

in the case of a body corporate or other body of

persons, by delivering it to an officer or employee thereof at the

registered or principal office, or by sending it by means of a

registered letter addressed to such body at that office; or

(e)

in any case in which it is not reasonably possible

to effect service in any of the foregoing manners, whether on all

or on any one or more of the persons on whom service is to be

made or notice is to be given, by affixing the notification,

decision or any other instrument or document to be served or

delivered in a conspicuous place on the property to which it

relates and keeping it so affixed for five (5) working days and

by publishing the said notification, decision or any other

instrument or document in a local newspaper. Where the

notification, decision or any other instrument or document to be

served or delivered is affixed on the property but is removed

before the expiry period of five (5) working days, the re-

affixing of the said notification, decision, or any other

instrument or document shall only be for the remaining period

after the document was removed.

PART V

Executive Powers

Where an investment is subjected to a condition or a number

of conditions as permitted by article 12, the Office shall serve the

foreign investor with its decision and shall allow reasonable time for

the foreign investor to take all necessary measures in order to satisfy

the said conditions

Provided that should the foreign investor fail to satisfy the

conditions imposed by the Office within the prescribed time, the

Office shall prohibit or unwind the foreign direct investment.

(1)

Where an investment is declared unwound, the

Office shall serve the foreign investor with its decision and shall allow

reasonable time for the foreign direct investor to reverse or modify any

such decision affecting the investment.

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(2)

Where a foreign investor fails to provide sufficient proof

that any such decision affecting the investment according to sub-

article (1) has been revoked, the Office shall have the power, following

the lapse of sixty (60) calendar days from date of service of the

decision mentioned in sub-article (1), to commence any judicial

proceedings which may be deemed necessary in terms of the Code of

Organization and Civil Procedure requesting a Civil Court of

competent jurisdiction to revoke any such decision as may be required

in order to prohibit or unwind the foreign direct investment, as the case

may be.

Where any of the persons involved in a foreign direct

investment fails to notify the Office in terms of article 11, the

investment shall automatically be considered to be in violation of the

provisions of this Act and the Office may, at its own discretion, take all

necessary measures to unwind the said investment.

PART VI

Administrative penalties

(1)

The Office may, by notice served on the offender,

impose administrative penalties amounting to

(a)

not less than five thousand euro (€5,000) and not

exceeding fifty thousand euro (€50,000) on any person for

failure to notify the Office in accordance with article 11;

(b)

not less than one thousand euro (€1,000) and not

exceeding five thousand euro (€5,000) on any person who fails

or refuses to provide information in accordance with articles 11

and 12;

(c)

not less than five thousand euro (€5,000) and not

exceeding one hundred thousand euro (€100,000) on any party

who provides incorrect, inaccurate or incomplete information,

in accordance with articles 11 and 12.

(2)

Any person who being requested to take any necessary

measures in terms of articles 13 and 14, fails to carry out such

measures within the time established by the Office for such purpose,

shall be liable to an administrative penalty of five hundred euro (€500)

for every day that elapses from the date stipulated by the Office

Provided that the imposition of any administrative penalty

shall be without prejudice to any other right or remedy which may be

competent to the Office in terms of this Act.

(3)

The notice relating to the administrative penalty imposed

under sub-articles (1) and (2) shall specify

(a)

the date and nature of the offence;

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(b)

a summary of the facts upon which the charge of

the offence is based;

(c)

any other matters that the Office may deem

relevant to the imposition of the penalty;

(d)

the amount of the penalty due; and

(e)

the offender’s right to appeal the administrative

decision according to article 17,

and shall be endorsed by a reference stipulating the provisions of this

article.

(4)

Any administrative penalty to which a person becomes

liable in terms of this Act shall be due and payable by that person, and

that person shall not be relieved from a higher or from a further

penalty to which he may have become or may become liable in terms

of the relevant provisions of this Act.

(5)

Penalties under sub-article (2) shall accrue until sufficient

proof is provided that the necessary measures were taken effectively.

(6)

In special cases, where there are cogent and compelling

reasons to do so, the Office may waive compulsory penalties wholly or

in part.

(7)

Administrative penalties shall be due to the Office as a civil

debt, and the provisions of article 466 of the Code of Organization and

Civil Procedure shall mutatis mutandis apply thereto.

PART VII

Appeal

(1)

The Administrative Review Tribunal established by

article 5 of the Administrative Justice Act shall be competent to hear

and determine

(a)

objections made by any person aggrieved by a

decision taken according to article 12;

(b)

objections made by any person aggrieved by an

administrative penalty imposed on that person in terms of this

Act

Provided that unless otherwise prescribed by law, an appeal

application lodged in terms of this sub-article to the Administrative

Review Tribunal shall be filed within twenty (20) days from the

receipt of the decisions mentioned in paragraphs (a) and, or (b).

(2)

Notwithstanding anything contained in the Administrative

Justice Act, the Administrative Review Tribunal shall serve the appeal

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applications filed in its registry on the respondent without delay. The

respondent shall have the right to file a written reply within twenty

(20) days from the date of service. The Tribunal shall subsequently set

a date for hearing within eight (8) working days from the filing of a

reply by the respondent or following the lapse of twenty (20) days

from when the respondent is served with the appeal, even if no reply is

filed by the respondent within such time-frame. The Tribunal shall,

after appointing the appeal application for hearing, decide on its merits

after receiving any evidence it deems fit, within the shortest time

possible, but not later than six (6) months from the day when the

application has been duly notified.

(3)

There shall be a right of appeal on points of law in

accordance with the provisions of Part IV of the Administrative Justice

Act from decisions of the Administrative Review Tribunal under sub-

article (1) and such appeal shall be to the Court of Appeal (Inferior

Jurisdiction) as constituted in accordance with article 41(6) of the

Code of Organization and Civil Procedure.

(4)

The right of appeal mentioned in sub-article (3), shall be

exercised within twenty (20) days from the date of the Tribunal’s

decision and a copy of the appeal application shall be served on the

respondent, who may file a written reply within twenty (20) days from

the date of service.

(5)

In the absence of an appeal application in terms of sub-

article (1)(b), the decision of the Office to impose administrative

penalties shall become final and shall constitute an executive title for

the purpose of Title VII of the Code of Organization and Civil

Procedure as if the decision had been delivered by a judgment of a

Court of Civil jurisdiction.

PART VIII

Miscellaneous Provisions

In the performance of its functions and duties under this

Act, the Office shall observe the obligations imposed by data

protection legislation, including the provisions of the General Data

Protection Regulation.

The Minister may, in order to achieve the purposes of this

Act, make regulations and issue such orders as may be necessary in

order to give effect to the provisions of this Act.