27 tal-2005 - Ordni tal-2005 li jemenda l-Ordni dwar l-Implimentazzjoni tal-Klawsola ta’ Salvagwardja

L.N. 27 of 2005

EUROPEAN UNION ACT

(CAP. 460 )

Implementation of Safeguard Clauses (Amendment) Order, 2005

BY virtue of the powers conferred under Article 4(2) of the

European Union Act (Cap. 460), the Prime Minister and Minister of

Finance has made the following Order>

This order may be cited as the Implementation of Safeguard Citation.

Clauses (Amendment) Order, 2005 and it shall be read and construed as

one with the Implementation of Safeguard Clause Order, 2004, hereinafter L.N. 234 of 2004.

referred to as “the principal Order.”.

In Article 2 of the principal Order, immediately after the Amends Article 2

of the principal

definition “the competent authority” there shall be added the following Order.

new definition>

“ “Court of Appeal” means the Court of Appeal as constituted

in terms of subarticle (6) of article 41 of the Code of Organiszation

and Civil Procedure<”.

Article 9 of the principal Order shall be amended as follows> Amends Article 9

of the principal

Order.

(a) in the marginal note thereof, for the word “penalties” there

shall be substituted the words “administrative fines”<

(b) in subarticle (2) thereof, for the words “a penalty” and “a

further penalty” wherever they occur, there shall be substituted the

words “an administrative fine” and “a further administrative fine”

respectively< and

(c) immediately after subarticle (2) thereof, there shall be

added the following new subarticle>-

“(3) In determining the amount of an administration fine

regard shall be had, in particular, to the nature and extent of the

infringement, its duration and its impact on the market.”.

Immediately after article 9 of the principal Order, there shall be Adds new article

10 to the principal

added the following new article>

Order.

(1) Before imposing an administrative fine, the

competent

authority shall write to the person concerned warning

administrative

him that an administrative fine may be imposed, and inform

him of the amount of the fine that may be imposed and the

specific reasons for which it may be imposed, and granting

such person a period of not less than ten days as the competent

authority may determine to be appropriate in the circumstances,

during which period such person may make his submissions

to the competent authority.

(2) Before deciding whether to impose an

administrative fine, the competent authority shall consider the

submissions, if any, made to it under subarticle (1) hereof.

(3) If after the lapse of the period during which

submissions may be made in accordance with subarticle (1),

the competent authority considers that such person has not given

any valid proof or reasons to demonstrate that the administrative

fine referred to in subarticle (1) should not be imposed, the

competent authority shall impose an administrative fine in

accordance with this Order and shall give notice in writing to

such person specifying the nature of the infringement and the

amount of the administrative fine due.

(4) The notice as referred to in subarticle (3) shall,

without prejudice to the right of appeal under article 13 (2) of

this Order, upon the service of a copy thereof by means of a

judicial act on the person indicated in the notice, constitute an

executive title for all effects and the purposes of Title VII of

Part I of Book Second of the Code of Organization and Civil

Procedure.

(5) Notwithstanding the provisions of article

256(2) of the Code of Organization and Civil Procedure, the

executive title referred to in subarticle (4) of this article shall

not be enforceable before the lapse of thirty days from the

service of the judicial act therein referred to>

Provided that where an appeal against an

administrative fine in accordance with article 13(2) has been

filed, the said executive title shall not be enforceable unless the

Court of Appeal rejects the appeal or unless the proceedings

on appeal are deserted or otherwise discontinued without final

judgement>

Provided further that where the Court of Appeal confirms

or varies the amount of the administrative fine, the executive

title referred to in subarticle (4) shall apply up to the amount of

the fine as confirmed or varied by the Court of Appeal and

shall be enforceable after the judgement of the said Court.”.

5. Immediately after article 10 of the principal Order, there shall Adds new article

11 to the principal

be added the following new article>

Order.

Where a breach of this Order mentioned in article

9(1) is committed by a body corporate and is proved to have

been committed with the consent or involvement of, or

attributable to any gross negligence on the part of a person

being a director, manager, secretary or other officer, however

so described, of the body corporate or a person who was

purporting to act in any such capacity, that person, as well as

the body corporate, shall be liable to be proceeded against and

punished as if he was responsible for the said infringement.”.

6. Immediately after article 11 of the principal Order, there shall Adds new article

12 to the principal

be added the following new article>

Order.

There shall be a right of appeal to the Court of Appeal

from decisions of the competent authority to impose an

administrative fine in terms of this Order.”.

7. Immediately after article 12 of the principal Order, there shall Adds new article

13 to the principal

be added the following new article>

Order.

(1) The procedure to be followed in relation to

appeals against administrative fines imposed by the competent

authority shall be regulated by the provisions of this article.

(2) A person who is notified with a judicial act

referred to in article 10(4) may, within thirty days from the

date of such notification, lodge an appeal before the Court of

Appeal objecting to the administrative fine so fixed.

(3) The Court of Appeal shall not annul an

administrative fine as aforesaid unless such fine cannot at law

be imposed in the circumstances of the case or cannot at law be

fixed in the amount established by the competent authority,

due account being given to the principle of proportionality.

(4) The Court of Appeal shall without delay set

down the appeal for hearing at an early date, which date shall

in no case be later than forty days from the date of the service

of the appeal on the competent authority.

(5) The appeal, and the notification of the date fixed

for hearing shall be notified to the competent authority without

delay, and the competent authority shall file its reply thereto

within twenty days from the date of the notification of the

appeal.

(6) The decision of the Court of Appeal upon an

appeal referred to in subarticle (2), confirming the imposition

of a fine established by the competent authority or reducing

any such fine, shall render such fine a res judicata.”.

8. Immediately after article 13 of the principal Order there shall be

added the following new article>

(1) In determining an appeal, the Court of Appeal

shall take into account the merits of the case and may, in whole

determination

or in part, confirm or annul the decision appealed from, giving

reasons for its decision.

(2) The provisions of the Code of Organization and Civil

Procedure regarding the hearing of appeals shall apply to any

appeal filed under this Order.”.

9. Immediately after article 14 of the principal Order there shall be

added the following new article>

Where in proceedings relating to any alleged breach

of this Order any dispute arises as to whether any trader was

the importer into Malta of any goods to which this order applies,

any trader found in possession of the said goods shall be

presumed to be the importer thereof unless he provides proof

to the contrary.”.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press