Distance Selling (Retail Financial Services) Regulations, 2005

Suppliment tal-Gazzetta tal-Gvern ta’ Malta, Nru. 17,719, 4 ta’ Frar, 2005

L.N. 36 of 2005

MALTA FINANCIAL SERVICES ACT

(CAP. 330)

Distance Selling (Retail Financial Services) Regulations, 2005

IN exercise of the powers conferred by article 20A of the Malta

Financial Services Authority Act, the Prime Minister and Minister of

Finance, after consultation with the Malta Financial Services Authority,

has made the following regulations>-

(1) These regulations may be cited as the Distance Selling Citation and date

of commencement.

(Retail Financial Services) Regulations, 2005.

(2) These regulations shall come into force on the 4th

February, 2005.

(1)

In these regulations, unless the context otherwise Interpretation.

requires -

“the Act” means the Malta Financial Services Authority Act< Cap. 330.

“ the Commission” means the Commission of the European

Community<

“Companies Act” means Act No. XXV of 1995<

“ the competent authority” means the Malta Financial Services

Authority as established by the Act<

“consumer” means any natural person who, in a distance

contract acts for purposes which fall outside the trade, business or

profession of such person<

“distance contract” means any contract concerning a financial

service concluded between a supplier and a consumer under an

organised distance sales or service-provision scheme run by the

supplier, who, for the purpose of that contract, makes exclusive

use of one or more means of distance communication up to and

including the time at which the contract is concluded<

“Distance Marketing Directive” means Directive 2002#65#EC

of the European Parliament and of the Council of 23 September

2002 concerning the distance marketing of consumer financial

services and amending Council Directive 90#619#EEC and

Directives 97#7#EC and 98#27#EC<

“durable medium” means any instrument which enables the

consumer to store information addressed personally to the consumer

in a way accessible for future reference for a period of time adequate

for the purposes of the information and which allows the unchanged

reproduction of the information stored, including in particular

floppy discs, CD-ROMs, DVDs and the hard drive of the

consumer’s computer on which the electronic mail is stored, but

excluding Internet websites unless these otherwise fall within this

definition of a durable medium<

“EEA State” means any State which is a contracting party to

the agreement on the European Economic Area signed at Oporto

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

on 17th March 1993 and as amended from time to time<

“European Community” means the organisation established

by the Treaty of Rome in 1957 and amended institutionally and

otherwise in 1986 by the Single European Act, in 1993 by the

Treaty on European Union, in 1997 by the Treaty of Amsterdam

and in 2001 by the Treaty of Nice and as amended by accession

agreements and as may be further amended from time to time<

“financial service” means any service of a banking, credit,

insurance, personal pension, investment or payment nature and

shall include all services the carrying out of which requires a licence

or other authorisation from the competent authority or which

otherwise fall under its supervisory functions<

“initial service agreement” means a primary agreement from

which secondary agreements may result such as but not limited

to>–

(i) the opening of a bank account<

(ii) acquiring a credit card< or

(iii)

concluding a portfolio management contract<

“intermediary” refers to a person who, acting as an

intermediary, has been involved to a relevant or material degree in

the conclusion of a distant contract, and this irrespective of his

legal status or relationship with the supplier<

“list of qualified entities” means the list compiled and updated

by the Commission and published in the Official Journal of the

European Communities listing the qualified entities in Member

States and EEA States in accordance with Article 4 of the Directive

98#27#EC of the European Parliament and of the Council of 19 th

May 1998 on injunctions for the protection of consumer interests<

“means of distance communication” refers to any method

which, without the simultaneous physical presence of the supplier

and the consumer, may be used for the distance marketing of a

service between those parties, including unaddressed printed

matter, addressed printed matter, standard letters, press advertising

with orders, catalogues, telephone with human intervention,

telephone without human intervention (automatic calling

machines, audiotext), radio, videophone (telephone with screen),

videotext (microcomputer and telephone screen) with keyboard

or touch screen, electronic mail, facsimile machine (fax) and

television (teleshopping)<

“Member State” means a member of the European

Community<

“Minister” means the Minister responsible for financial

regulation<

“personal pension arrangement” means any savings

arrangement for retirement which is supplemental to a State pension

or an occupational pension scheme being a pension arrangement

offered through the employer<

“ professional” means any person engaged in work>

(a) involving the exercise of discretion and judgment

in its performance<

(b) requiring knowledge of an advanced type in a field

of learning< and

(c) including but not limited to persons authorised to

provide expert assistance with investment, estate, retirement

and financial planning< employee benefits< business and

compensation planning< and life, health, disability, and long-

term care insurance<

“qualified entity” means>

(a) a registered consumer association within the

meaning of Part IV of the Consumer Affairs Act<

(b) one or more independent public bodies, having a

legitimate interest in ensuring the protection of the collective

interests of consumers of financial services by distance

contracts in other Member States or EEA States in which such

bodies exist<

(c) voluntary organisations in other Member States or

EEA States whose purpose is to protect the interests referred

to in paragraph (b) of this definition in accordance with the

criteria laid down by their national law<

(d) organisations recognised by the competent

authority as collectively representing professional financial

service suppliers< or

(e) any qualified entity from a Member State or EEA

State included in the list of qualified entities<

“supplier” means any natural or legal person providing a

financial service at a distance by virtue of a distance contract,

including any person involved as an intermediary in any of the

marketing stages of the distance contact.

(2) Words and expressions used in these regulations which

are also used in the Act shall have the same meanings as in the Act.

(1) The object of these regulations is to implement the

provisions of Directive 2002#65#EC of the European Parliament and of

the Council of 23 September 2002 concerning the distance marketing

of consumer financial services and amending Council Directive

90#619#EEC and Directives 97#7#EC and 98#27#EC, and shall be

interpreted and applied accordingly.

(2) Regulations 15 to 23 of these regulations implement

the provisions of Directive 98#27#EC of the European Parliament and

of the Council of 19th May 1998 on injunctions for the protection of

consumer interests, as applicable to the distance marketing of consumer

financial services and shall be interpreted and applied accordingly.

(1) These regulations apply to any distance contract service Scope.

provision scheme organised by a financial services supplier, carrying

on financial services activities in or from Malta, and accordingly do not

apply to services provided on a strictly one-off or occasional basis or to

services falling outside a commercial structure dedicated to the

conclusion of distance contracts.

(2) Where a distance contract for financial services does

not comprise an initial service agreement but comprises successive

operations or a series of separate operations of the same nature performed

over time between the same contractual parties, the provisions of

regulation 5 apply only when the first operation is performed. Where,

however, no operation of the same nature is performed for more than

one year, the next operation will be deemed to be the first in a new

series of operations and, accordingly, regulation 5 shall apply.

(3) Where a distance contract for financial services

comprises an initial service agreement followed by successive operations

or a series of separate operations of the same nature performed over

time, the provisions of these regulations shall apply only to the initial

agreement.

(1) A supplier shall, in a clear and comprehensible manner Prior information

to be provided to

appropriate to the means of distance communication used, and in consumer.

reasonable time before the consumer is bound by a distance contract or

offer, provide the consumer with information concerning the supplier,

the financial services involved in the offer, the nature of the distance

contract and the forms of redress available, as follows>-–

(a)

Information regarding the supplier>

(i) the identity and the main business of the supplier,

the full geographical or main business address where the

supplier is established and any other geographical or business

address relevant for the customer’s relations with the supplier<

(ii) the identity of the representative of the supplier

established in the consumer’s country of residence, being

within a Member State or EEA State and the geographical or

full business address relevant for the customer’s relations with

the representative in such State, if such a representative exists<

(iii) when the consumer’s dealings are with any

professional other than the supplier, the identity of this

professional, the capacity in which he is acting in his dealings

with the consumer, and the full geographical and main

business address relevant for the consumer’s relations with

such professional<

(iv) where the supplier is a body corporate registered

in a companies register, or in any case the supplier is registered

in a trade or similar public register, the register in which the

supplier is entered and the supplier’s registration number or

an equivalent means of identification in that register< and

(v) where the supplier’s activity is subject to a licence

or any other authorisation scheme, the particulars of the

relevant supervisory authority<

(b) Information regarding the financial service>

(i) a description of the main characteristics of the

financial service which is the subject of the offer<

(ii) the total price to be paid by the consumer to the

supplier for the financial service, including all related fees,

charges and expenses, and all taxes paid via the supplier or,

when an exact price cannot be indicated, the basis for the

calculation of the price enabling the consumer to verify it<

(iii) where relevant, clear and specific notice indicating

that the financial service is related to instruments involving

special risks related to their specific features or the operations

to be executed or whose price depends on fluctuations in the

financial markets outside the supplier’s control and that

historical performances are no indicators for future

performances<

(iv) notice of the possibility that other taxes and, or

costs may exist that are not imposed by or paid through the

supplier<

(v) any limitations of the period for which the

information provided is valid<

(vi) the arrangements for payment and for

performance< and

(vii) any specific additional cost for the consumer of

using the means of distance communication, if such additional

cost is charged<

(c) Information regarding the distance contract>

(i) the existence or absence of a right of withdrawal or

cancellation in accordance with regulation 7 and, where the

right of withdrawal exists, its duration and the conditions for

exercising it, including information on the amount which the

consumer may be required to pay on the basis of sub-

regulation (1) of regulation 8, as well as the consequences of

non-exercise of the right of withdrawal<

(ii) the minimum duration of the distance contract in

the case of financial services to be performed permanently or

recurrently<

(iii) information on any rights the parties may have to

terminate the contract early or unilaterally by virtue of the

terms of the distance contract, including any penalties imposed

by the contract in such cases<

(iv) practical instructions for exercising the right of

withdrawal indicating, inter alia, the address where the

notification of a withdrawal should be sent<

(v) the Member State or EEA State whose laws are

taken by the supplier as a basis for the establishment of

relations with the consumer prior to the conclusion of the

distance contract<

(vi) any choice of law or choice of jurisdiction clause<

(vii) in which language, or languages, the contractual

terms and conditions, and the prior information referred to in

this regulation are supplied, and furthermore in which

language, or languages, the supplier, with the agreement of

the consumer, undertakes to communicate during the duration

of this distance contract<

(d) Information regarding the right to redress>

(i) details regarding the procedure for lodging a

complaint to the supplier, the relevant contact details of the

office responsible for complaints<

(ii) that the Consumer Complaints Manager offers an

out-of-court complaint mechanism for the consumer a party

to the distance contract, the contact details of the relevant

office and the methods for gaining access thereto<

(iii) the existence of any other out-of-court redress

mechanism available to the consumer and methods for gaining

access thereto< and

(iv) any compensation schemes or other compensation

arrangements or guarantees funds as may be applicable.

(2) The information required in sub-regulation (1) of this

regulation shall be provided with due regard to the principles of good

faith in commercial transactions, and any legislation governing the

protection of those who are unable to give their consent, such as minors.

The supplier must make clear the commercial purpose of the information

given.

(3) Where the distance contract relates to a long term

business contract of insurance the information required in sub-regulation

(1) of this regulation shall be additional and without prejudice to the

provisions of the Insurance Business (Long Term Business Contract

Statutory Notice) Regulations, 2000.

(4) Where the distance contract relates to a linked long term

business contract of insurance, the information required in sub-regulation

(1) of this regulation shall be additional and without prejudice to the

provisions of the Investment Services Act (Linked Long Term Contracts

of Insurance Statutory Notice) Regulations, 2002.

(5) (a) In the case of voice telephony communications the

identity of the supplier and the commercial purpose of the call initiated

by the supplier shall be made explicitly clear at the beginning of any

conversation with the consumer>

Provided that, subject to the explicit consent of the consumer,

only the following information shall need to be given>–

(i) the identity of the person in contact with the consumer

and that person’s link with the supplier,

(ii) a description of the main characteristics of the financial

service,

(iii) the total price to be paid by the consumer to the supplier

for the financial service including all taxes paid via the supplier

or, when an exact price cannot be indicated, the basis for the

calculation of the price enabling the consumer to verify it<

(iv) notice of the possibility that other taxes and, or costs

may exist that are not paid via or imposed by the supplier<

(v) the existence or absence of a right of withdrawal in

accordance with regulation 7 and, where the right of withdrawal

exists, its duration and the conditions for exercising it, including

information on the amount which the consumer may be required

to pay on the basis of sub-regulation (1) of regulation 8.

(b) The supplier shall inform the consumer in the telephone

communication that other information is available at the latter’s request

and shall explain the nature of this information. In any event, the supplier

shall provide the full information when fulfilling the obligations under

regulation 6.

(6) During the pre-contractual phase, the supplier shall

ensure that information on contractual obligations to be communicated

to the consumer is in conformity with the contractual obligations which

would result from the law presumed to be applicable to the distance

contract if such distance contract were concluded.

(7) The provisions of this regulation shall be without

prejudice to any other legislation, regulation or rules governing financial

services which provides for prior information requirements additional

to those listed in this regulation.

(1) The supplier shall communicate to the consumer all the Written

contractual terms and conditions and the information referred to in confirmation

information and

regulation 5 in written form or on another durable medium available contractual terms.

and accessible to the consumer in reasonable time before the consumer

is bound by any distance contract or offer.

(2) Where the distance contract has been concluded at the

consumer’s request using a means of distance communication which

does not permit the provision of the information as required under sub-

regulation (1), the supplier shall fulfil his obligations under this sub-

regulation immediately after the conclusion of the distance contract.

(3) Where the supplier has not fulfilled the obligations under

sub-regulations (1) or (2) hereof, the distance contract shall, at the option

of the consumer, be annullable by and unenforceable against the

consumer.

(4) The consumer may, at any time during the contractual

relationship, request to receive the contractual terms and conditions of

the distance contract in written form, which the supplier must duly and

promptly provide.

(5) The consumer may, at any time during the contractual

relationship, change the means of distance communication used with

the supplier unless this is incompatible with the distance contract

concluded or the nature of the financial service supplied.

(1) In every distance contract, a consumer shall have a period

of fourteen calendar days to withdraw from the distance contract without

incurring any penalty and without having to give any reason>

Provided that this period shall be extended to thirty calendar days

in distance contracts relating to life insurance covered by Directive

90#619#EEC and to personal pension arrangements.

(2) The period for exercising this right of withdrawal shall

commence>–

(a) from the day of the conclusion of the distance contract,

except in the case of life assurance contracts covered by Directive

90#619#EEC, where the time limit commences from the time when

the consumer is informed in writing on paper or on another durable

medium available and accessible to the consumer that the distance

contract has been concluded, or

(b) from the day on which the consumer receives the

contractual terms and conditions and the information in accordance

with sub-regulations (1) and (2) of regulation 6, where this date is

later than the date referred to in paragraph (a) hereof.

(3) The right of withdrawal shall not apply to>–

(a) financial services whose price depends on fluctuations

in the financial market outside the suppliers control, which may

occur during the withdrawal period, such as services related to

foreign exchange, money market instruments, transferable

securities, units in collective investment undertakings, financial-

futures contracts, including equivalent cash-settled instruments,

forward interest-rate agreements, interest-rate, currency and equity

swaps and options to acquire or dispose of any instruments referred

to in this point including equivalent cash-settled instruments and

including in particular options on currency and on interest rates<

(b) travel and baggage insurance policies or similar short-

term insurance policies of less than one month’s duration<

(c) distance contracts whose performance has been fully

completed by both parties at the consumer’s express request before

the consumer exercises the right of withdrawal.

(4) Where the consumer exercises the right of withdrawal,

the consumer shall, before the expiry of the relevant deadline, notify

this withdrawal to the supplier by means which can be proved in

accordance with national law and in accordance with the practical

instructions given to the consumer in accordance with sub-paragraph

(iv) of paragraph (c) of sub-regulation (1) of regulation 5. The relevant

deadline shall be deemed to have been observed if the notification, if it

is on paper or on another durable medium available and accessible to

the recipient, is dispatched before the deadline expires.

(5) This regulation does not apply to credit agreements

cancelled under the conditions of article 6(4) of Directive 97#7#EC or

article 7 of Directive 94#47#EC of the European Parliament and of the

Council of 26 October 1994 on the protection of purchasers in respect

of certain aspects of contracts relating to the purchase of the right to use

immovable properties on a timeshare basis.

(6) Where to a distance contract of a given financial service

another distance contract has been attached concerning services provided

by the supplier or by a third party on the basis of an agreement between

the third party and the supplier, this additional distance contract shall

be cancelled, without any penalty, if the consumer exercises the right

of withdrawal as provided for in sub-regulation (1) of regulation 7.

(7) The provisions of this regulation are without prejudice

to the provisions of any other laws or regulations governing the

cancellation or termination or non-enforceability of a distance contract

or the right of a consumer to fulfil the contractual obligations before

the time fixed in the distance contract. This applies irrespective of the

conditions for and the legal effects of the winding-up of the distance

contract.

(1) When the consumer exercises the right of withdrawal Payment of the

service provided

under sub-regulation (1) of regulation 7 the consumer may only be before withdrawal.

required to pay, without any undue delay, for the service or benefit

actually provided by the supplier in accordance with the distance

contract, in any case the amount payable by the consumer shall not

(a) exceed an amount which is in proportion to the extent

of the service already provided in comparison with the full coverage

of the distance contract< or

(b) in any case be such that it could be construed as a penalty.

(2) The performance of any distance contract may only

begin after the consumer has given prior approval.

(3) Where a notice of cancellation in terms of these

regulations operates to cancel an insurance contract, the consumer shall

not be required to pay any amount of money upon or consequent to the

cancellation>

Provided that any benefit under the policy which the insurer

has paid to the person serving the notice shall be refunded by such

person to the insurer.

(4) The supplier may not require the consumer to pay any

amount on the basis of sub-regulation (1) unless the supplier can prove

that the consumer was duly informed about the amount payable, in

conformity with sub-paragraph (i) of paragraph (c) of sub-regulation

(1) of regulation 5>

Provided that in no case may the supplier require such payment

if the performance of the distance contract has already commenced

before the expiry of the withdrawal period provided for in regulation

7(1) and without the consumer’s prior request.

(5) The supplier shall, without any undue delay and no later

than within thirty calendar days, return to the consumer any sums the

supplier has received from the consumer in accordance with the distance

contract, except for the amount referred to in sub-regulation (1). This

period shall begin from the day on which the supplier receives the

notification of withdrawal.

(6) The consumer shall return to the supplier any sums and,

or property he has received from the supplier without any undue delay

and no later than within thirty calendar days. This period shall begin

from the day on which the consumer dispatches the notification of

withdrawal.

The consumer is entitled to cancel a payment made by credit

or debit card where fraudulent use has been made of the consumer’s

payment card in connection with a distance contract to which these

regulations apply. In any such instance, the consumer’s bank account

shall be re-credited with all sums paid as a result of such fraudulent use

or else such sums shall be returned to the consumer by some other means.

(1) Without prejudice to any provisions on the tacit renewal Unsolicited

services.

of distance contracts, a consumer is not liable to pay a supplier for any

unsolicited financial services supplied to the consumer without any prior

request.

(2) A consumer may treat any unsolicited financial services

supplied by a supplier as if they were an unconditional gift and any

right of the supplier thereto shall be terminated.

(3) A supplier who makes a demand for payment, or asserts

a present or prospective right to payment for financial services

unsolicited by the consumer, shall be liable to an administrative penalty

in terms of regulation 25.

(4) A supplier shall be liable to an administrative penalty

in terms of regulation 25, if with a view to obtaining any payment for

unsolicited financial services, the supplier>

(a) threatens to bring any legal proceedings against the

consumer<

(b) places or causes to be placed the name of a consumer

on a list of defaulters or debtors, or threatens to do so< or

(c) invokes or causes to be invoked any other collection

procedure, against the consumer or threatens to do so.

(1) A supplier shall not make use of the following means Unsolicited

communications.

of distance communication without obtaining the consumer’s prior

consent>–

(a) automated calling systems without human intervention

(automatic calling machines)< or

(b) fax machines.

(2) Means of distance communication which allow

individual communications, excluding those referred to in sub-regulation

(1), may be used as long as the consumer has not expressed his manifest

objection thereto.

(3) If the supplier persists in addressing means of distance

communications to a consumer after having been asked, even verbally,

by such consumer to desist, the supplier shall be liable to an

administrative penalty in terms of regulation 25.

(4) The measures referred to in sub-regulations (1) and (2)

shall not entail costs for consumers.

(1) A consumer who feels aggrieved in relation to a

financial service provided at a distance may refer his complaint to the

Consumer Complaints Manager who shall investigate such complaint

in accordance with article 20 of the Act.

(2) The Consumer Complaints Manager shall, to the extent

possible, assist and cooperate with bodies responsible for out-of-court

settlement of disputes in Malta and in other Member States and EEA

States in the resolution of local and cross-border disputes concerning

financial services falling under these regulations.

(1) Where a qualified entity wishes to seek a compliance

order, it shall submit its written application to the competent authority.

In its application, it must satisfy the competent authority that it has

tried to achieve the cessation of the infringement in consultation with

either the defendant or both the defendant and another qualified entity

of the Member State or EEA State in which the injunction is sought.

The competent authority shall only entertain a written application if the

qualified entity shows to the satisfaction of the competent authority

that the cessation of the infringement was not achieved within two weeks

after the request for consultation was received.

(2) Where the qualified entity is from another Member State

or EEA State, the competent authority shall treat the list of qualified

entities published by the Commission as conclusive proof of the legal

capacity of the legal entity to present such written application in Malta.

(3) The competent authority shall, at the request of a

qualified entity from Malta, communicate to the Commission the name

and objects of such entities and that such qualified entity should be

added to the list of qualified entities so as to facilitate the redress of

inter-community infringements.

(4) Before proceeding for the issue of a compliance order

under regulation 14, the competent authority shall, if it considers it to

be possible and reasonable to do so, seek first to achieve voluntary

compliance by the supplier and other persons involved, in accordance

with these regulations or with any other law dealing with consumer

rights and protection.

(1) Where the competent authority feels it reasonably Issue

compliance orders.

appropriate or necessary for the protection of consumers, it may, of its

own initiative or on a written application to it by a qualified entity,

issue a compliance order against a supplier, for one or more of the

following purposes>

(a) ordering the deletion or alteration of particular clauses

incorporated in a distance consumer contract which the competent

authority considers as being unfair to consumers or as creating a

significant imbalance between the rights and obligations of the

contracting parties in a manner detrimental to consumers<

(b) ordering the incorporation of terms in a distance contract

which the competent authority considers to be necessary for the

better information or protection of consumers, or for preventing a

significant imbalance between the rights and obligations of the

parties in a manner detrimental to consumers<

(c) requiring any person to take any measures specified in

the compliance order, within the time specified in the compliance

order to ensure that these regulations are complied with<

(d) requiring any person to cease or desist from committing

a breach of these regulations.

(2) The competent authority shall when issuing a

compliance order under this regulation>–

(a) serve a copy of the compliance order on each person

against whom the order is made<

(b) include with the compliance order, information about

the right to institute an action before the Financial Services Tribunal

in accordance with regulation 17< and

(c) briefly state the reasons for issuing the compliance order,

which reasons shall be notified to each person against whom the

compliance order is issued and, if any, to the qualifying body on

whose application the compliance order is issued.

(3) No precautionary warrant or other order under any other

law shall be issued by any court or tribunal restraining or restricting the

competent authority from issuing a compliance order under these

regulations.

(1) It shall be at the discretion of the competent authority

whether or not to issue a compliance order after a written request by a

authority to issue a

qualified entity has been made to it in terms of regulation 14.

(2) If the competent authority decides not to issue a

compliance order after an application has been made to it by a qualified

entity, it shall, within seven days from the date of its decision, notify in

writing the qualified entity and the persons against whom the compliance

order is requested with its decision stating the reasons therefor.

(3) A qualified entity may within fifteen days from the date

of notification upon it of the decision of the competent authority not to

issue a compliance order, institute an action before the Financial Services

Tribunal for the issue of an order requiring the competent authority to

issue a compliance order under regulation 14. The persons against whom

the compliance order is requested to be made shall be parties to the suit,

and it shall be the duty of the qualified entity to notify such persons

accordingly.

(4) In the exercise of its functions and powers under this

regulation, the Tribunal shall in all cases act as expeditiously as possible.

In the case of an application by a qualifying body, the Tribunal shall

give its decision within fifteen days from receipt of the application.

A compliance order issued by the competent authority shall

come into force with immediate effect.

(1) A person against whom a compliance order has been

made, may, within fifteen days from receipt of notification of the

compliance order, appeal in writing to the Financial Services Tribunal

for the revocation or amendment of the compliance order, giving detailed

grounds for the request. Such appeal may be made only on the following

grounds>–

(a) the competent authority has, in its decision wrongly

applied any of the provisions of this Act< or

(b) the decision of the competent authority constitutes an

abuse of discretion or is manifestly unfair.

(2) The Financial Services Tribunal may confirm, change

or cancel the compliance order on any terms or conditions it considers

appropriate.

(3) Where an appeal is instituted under sub-regulation (1),

the compliance order shall remain in force unless the Financial Services

Tribunal specifically orders that the compliance order shall be stayed

pending the outcome of the appeal, subject to such conditions and

amendments as it may determine. In any such instance, the competent

authority may request the Financial Services Tribunal to make an interim

compliance order, ordering that the compliance order shall, subject to

such modifications as the competent authority may suggest, continue

in force pending the final determination of the case instituted in

accordance with sub-regulation (1). An interim compliance order shall

expire upon the final determination of the case.

(4) Subject to this regulation, the provisions of article 21 of

the Act shall govern appeals to the Tribunal.

Appeals instituted under sub-regulation (3) of regulation 15 Cases to be heard

and determined

and regulation 17 shall be heard and determined by the Financial Services with urgency.

Tribunal with urgency and as expeditiously as possible.

The competent authority, when issuing a compliance order No need to prove

actual loss, etc.

under regulation 14, shall not be required to prove>–

(a)

actual loss or damage< or

(b) actual recklessness, negligence or fault on the part of

the supplier or person against whom the order is made.

(1) The competent authority may, for the better information Competent

authority may

of the public>

require

publication.

(a) publish a copy of the compliance order made under

regulation 14 against any such person, in full or in part< and, or

(b) order any person to publish a corrective statement in

relation to any contravention of these regulations.

(2) Publication in terms of sub-regulation (1) shall be made

at the expense of the supplier or person concerned in at least two daily

newspapers within seven days from receipt of the notice and shall be at

the expense of the person served with such notice. Where such

publication is not effected as aforesaid, the competent authority may

proceed to effect publication itself, in which case it shall have the right

to recover from the person on whom the notice is served, any expenses

incurred, as a civil debt.

The competent authority may in writing authorise a public Delegation of

powers of the

or other officer to perform any of its functions in relation to the competent

enforcement of these regulations or exercise any power granted to it authority.

under these provisions. Any such officer shall when required, produce

the written authorisation signed by the competent authority.

(1) For the purpose of discharging its functions under these

regulations, the competent authority may –

(a) enter and search any premises, other than premises used

exclusively as a place of residence<

(b) make any inspection, conduct any test and take any

books, documents or records however kept or stored>

Provided that no entry and search shall be effected between

seven in the evening and seven in the morning, unless the competent

authority has reason to believe that delay could cause the loss of

necessary information.

(2) Where the competent authority takes any book,

document or record under this regulation, the competent authority may

retain that book, document or record –

(a) for as long as it is necessary to enable it to be inspected

and copies of extracts from it to be made or taken, or

(b) if it is required as evidence in proceedings for a breach

of these regulations.

(3) The competent authority shall give to the person from

whom anything has been taken, a receipt for what has been taken.

(4) If the competent authority keeps the original of any book,

document or record, it shall allow the owner thereof to have reasonable

access thereto or to a copy thereof as soon as practicable.

(5) Nothing in this regulation shall be deemed to restrict or

detract from the powers of the competent authority under any other

law, or from the powers of the Police under the Criminal Code or any

other law.

(6) In the course of any entry and search under these

regulations, the competent authority may request the assistance of the

Police.

(1) The competent authority may, for the purpose of

discharging its functions under these regulations, require any person to

provide any information in any manner, including>

(a)

by answering any questions, orally or in writing< or

(b) by producing any books, documents or other records as

the competent authority may consider to be necessary.

(2) Any such person shall promptly comply with any such

(1) A supplier, licensed or otherwise authorised to offer a Failure to comply

with regulations.

financial service by the competent authority, shall be liable to an

administrative penalty in terms of regulation 25 if the supplier, or the

manager, secretary, director or other person responsible for the supplier’s

activity>–

(a) is responsible for behaviour specifically referred to in

sub-regulations (3) and (4) of regulation 10 or in sub-regulation

(3) of regulation 11<

(b) fails to observe any other provision in these regulations<

(c) fails to comply with a compliance order issued under

these regulations< or

(d) refuses or fails to furnish information as required under

these regulations or else provides false or misleading information.

(2) A supplier, licensed or otherwise authorised to offer a CAA 105.

financial service by the competent authority, shall be liable to an

administrative penalty if such supplier>–

(a) wilfully obstructs, assaults, threatens, resists or interferes

with the competent authority or a public officer in the exercise of

its duties under these regulations or attempts so to do< or

(b) uses threatening, abusive or insulting language to the

representatives of the competent authority or a public officer in

the course of duties delegated pursuant to the provisions of

regulation 21.

(1) In the event of liability arising in terms of regulation Administrative

penalties.

24 the competent authority may by notice in writing and without recourse

to a court hearing impose on the supplier, or the manager, secretary,

director or other person responsible for the supplier’s activity as, the

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

thousand liri.

(2) Within a period of thirty days beginning with the date

of service of a notice imposing an administrative penalty in accordance

with sub-regulation (2), a person upon whom the notice is served may

appeal to the Financial Services Tribunal against the decision of the

competent authority in accordance with article 21 of the Act.

(3) Where a notice as referred to in sub-regulation (2) has

not been appealed or where such notice has been appealed within fifteen

days of the determination of such appeal, the administrative penalty as

contained in the notice or as reduced by the decision of the Financial

Services Tribunal shall be due to the competent authority and upon the

service of a copy of the notice or the decision as the case may be, by

means of a judicial act on the person indicated in the notice or decision,

the said notice or decision shall constitute an executive title for all effects

and purposes of Title VII of Part I of Book Second of the Code of

Organization and Civil Procedure.

Nothing in these regulations shall prejudice or limit the

exercise of the powers of the competent authority to take administrative

measures or impose penalties under the Investment Services Act, the

Banking Act, the Financial Markets Act, the Financial Institutions Act,

the Insurance Business Act and the Insurance Brokers and other

Intermediaries Act, against a licensed or authorized person who has

contravened any of these regulations or has failed to satisfy or comply

with any obligation or condition to which he may be subject under any

of these Acts.

(1) Where an order or notice is required or authorised to be

served under these regulations it shall be served in any of the following

manners>–

(a) by delivering it, or by sending it by registered mail to

the person on whom it is to be served at such person’s place of

residence, office or place of work< or

(b) in the case of a body corporate or other body of persons,

by delivering it to an officer or servant thereof at the registered

office or any other place of business, or sending it in a registered

letter addressed to any such office.

(2) In any case where it is not reasonably possible to effect

service in any manner stated in sub-regulation (1) of this regulation, the

competent authority may effect service by publishing a summary of

such notice in the Gazette and any two daily newspapers.

(1) Any contractual term or condition contained in a Burden of proof.

distance contract providing that the burden of proof of the supplier of

all or part of the obligations incumbent on the supplier pursuant to these

regulations should lie with the consumer shall be an unfair term within

the meaning of Council Directive 93#13#EEC of 5 April 1993 on unfair

terms in consumer contracts.

(2) Without prejudice to sub-regulation (5) of regulation 8,

the burden of proof shall be placed on the supplier in any dispute relating

to>–

(a) the content of the information supplied to the consumer

in accordance with regulation 5<

(b) the consent of the consumer to the conclusion of any

distance contract< and

(c) the compliance by the supplier with the time-limits

prescribed under these regulations.

The rights conferred on consumers by these regulations may Imperative nature

of regulations.

not in any way be waived by a consumer.

These regulations may be applied to suppliers established in Transitional

provisions.

any Member State or EEA which has not yet transposed Directive

2002#65#EC and whose law has no obligations corresponding to those

provided for in these regulations.

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