Petroleum for the Inland (Wholesale) Fuel Market

L.N. 33 of 2010

MALTA RESOURCES AUTHORITY ACT

(CAP. 423)

Petroleum for the Inland (Wholesale) Fuel Market

(Amendment) Regulations, 2010

IN exercise of the powers conferred by sub-article (1) of

article 28 of the Malta Resources Authority Act, the Minister for

Resources and Rural Affairs, after consultation with the Malta

Resources Authority have made the following regulations

The title of these regulations is the Petroleum for the

Inland (Wholesale) Fuel Market (Amendment) Regulations, 2010,

and they shall be read and construed as one with the Petroleum for

the Inland (Wholesale) Fuel Market Regulations, 2007 hereinafter

referred to as “the principal regulations”.

Regulation 11(2)

Authorisation fee payable in respect of a

Authorisation to carry out the activity of an importer and, or wholesaler of

petroleum

The applicable authorisation fee for carrying out the activity of an importer and, or

wholesaler of petroleum in the inland market is of !2,329 per annum and of 0.02c

per litre of imported fuel.

Authorisation to operate a primary storage facility

The applicable authorisation fee for operating a primary storage facility is

(a) !4,659 per annum in the case of a primary storage facility which

does not exceed 25,000 tonnes capacity;

(b) !9,317 per annum in the case of a primary storage facility which

exceeds 25,000 tonnes but does not exceed 100,000 tonnes capacity;

(c) !13,976 per annum in the case of a primary storage facility which

exceeds 100,000 tonnes capacity

Authorisation to carry out the activity of bottling of LPG

The applicable authorisation fee for carrying out the activity of bottling of LPG is of

!2,329.”.

Regulation 1 of the principal regulations shall be

amended as follows

(a) in sub-regulation (2) thereof, for the words “the

inland wholesale fuel market of petroleum”, there shall be

substituted the words “the importation and wholesaling

of petroleum for the inland fuel market, primary storage

facilities and the bottling of LPG”; and

(b) immediately after sub-regulation (2) thereof, there

shall be added the following new sub-regulation

“(3) These regulations are being made for the

safeguarding of the public interest and public safety.

Any requirements contained therein, including those

relating to authorisations and to services, are made for

overriding reasons relating to public interest.”.

Regulation 3 (e)

The importation and wholesaling of 20,000 litres of motor spirit during the course of

one calendar year is exempt from the requirement of obtaining an authorisation in

terms of these regulations.

The importation and wholesaling of 1500 kgs of liquefied petroleum gas in cartridges

and similar small containers during the course of one calendar year is exempt from the

requirement of obtaining an authorization in terms of these regulations.

Any person who is so exempt shall still be bound to observe any applicable

regulation, decision or directive of the Authority.”.

€1.30

Regulation 2 of the principal regulations shall be

amended as follows

(a) in the definition “authorisation”, immediately after

the words “these regulations” there shall be added the words

“, and in relation to services and service providers means

a permit, licence, warrant, appointment, concession or any

decision concerning access to a service activity or the exercise

thereof”;

(b) in the definition “authorised provider”, for the

word “regulations;” there shall be substituted the words

“regulations, or a service provider who is authorised to

operate under any law in force in a Member State of the

European Union or a state which is a participant to the

European Economic Area:”, and immediately thereafter there

shall be inserted the following proviso

“Provided that whenever the Authority is required

to exercise its functions under these regulations in

relation to offshore storage facilities, the Authority shall

act in collaboration with the authority responsible for

maritime matters;”;

(c) immediately after the definition “boycott” there

shall be added the following new definition

“cartridge” means a non-refillable container

designed to be disposed of when empty and constructed

to a recognised standard;

(d) immediately after the new definition “cartridge”

there shall be added the following new definition

“ “CN codes” means the code numbers of the

combined nomenclature established by Regulation

2658/87 on the tariff and statistical nomenclature and on

the customs tariff;”;

(e) in paragraph (b) of the definition “competent

person”, for the words “carry out” there shall be substituted

the word “supervise”;

(f) immediately after the definition “competent person”

there shall be added the following new definition

“ “establishment” means the actual pursuit of an

economic activity by a service provider for an indefinite

period and through stable infrastructure from where the

business of providing services is actually carried out;”;

(g) in the definition “final customer” in the English

text, for the words “final customer” there shall be substituted

the words “final consumer”, and wherever they occur in the

principal regulations, these shall be substituted with the words

“final consumer”;

(h) immediately after the definition “material

alterations” there shall be added the following new definition

“ “Member State” means a member state of the

European Union;”;

(i) immediately after the definition “the Minister” there

shall be added the following new definition

“ “motor spirit” means an oil used in spark ignition

engines of which 90 % or more by volume, including

losses distils at 210°C;”;

(j) immediately after the new definition “motor spirit”

there shall be added the following new definition

“ “overriding reasons relating to public interest”

means reasons recognised as such in case law of the

European Courts of Justice and which reasons present a

justification for the issue of an authorisation and, or the

issue of a condition thereto and, or to any other policy

decision taken in terms of such authorisation, when such

authorisation, and, or condition and, or policy decision

thereto could not have been issued or taken under

normal circumstances but for such overriding reasons

relating to public interest which include the following

grounds

(a) public policy, public security, public

safety and public health; provided that, these

grounds shall be interpreted within the meaning of

Article 46 and Article 55 of the Treaty;

(b) the maintenance of order in society;

(c) social policy objectives;

(d)

the protection of the recipients of

services;

(e)

consumer protection;

(f)

the prevention of unfair competition;

(g)

the prevention of fraud; and

(h)

the protection of the environment;”;

(k) in the definition “petroleum”, immediately after the

words “the Act”, there shall be added the words “, but shall

not include those products listed in the Fourth Schedule to

these regulations”;

(l) immediately after the definition “portable

cylinders”, there shall be added the following new definition

“ “premises” means land and the improvements on

it, a building, store, shop, apartment, laboratory or other

designated permanent structure in a specific location;”;

(m) immediately after the definition “primary storage

facility”, there shall be added the following new definition

“ “recipient” means any natural person who

is a national of a Member State, who benefits from

rights conferred upon him by community acts or any

legal person established in a Member State, who

for professional or non-professional purposes, uses,

or wishes to use a service against non-economic

considerations;

(n) immediately after the new definition “recipient”,

there shall be added the following new definition

“ “service” means any self-employed activity

performed for economic considerations;

(o) immediately after the new definition “service”,

there shall be added the following new definition

“ “service provider” means any natural person who

is a national of a Member State, or any legal person

established in a Member State, who offers or provide a

service;”; and

(p)

immediately after the new definition “service

provider”, there shall be added the following new definition

“ “the Treaty” means the Treaty establishing the

European Community.”.

Regulation 3 of the principal regulations shall be

amended as follows:-

(a) in sub-regulation (1) thereof, for the words “No

person shall, unless he has been granted a valid authorisation

in accordance with these or other regulations, carry out any

of the following operations and, or activities:”, there shall be

substituted the words “The following operations and activities

shall require an authorisation:”;

(b) in paragraphs (a) and (b) of sub-regulation (2)

thereof, the words “by any one person” shall be deleted;

(c) in the proviso to paragraph (a) thereof, for the

words “he shall notify the Authority of his intention to store”

there shall be substituted the words “the Authority shall

be notified of” and immediately after the words “types of

petroleum” there shall be added the words “intended to be

stored”;

(d) in paragraphs (c) and (d) of sub-regulation (2)

thereof, the words “by any one person” wherever they occur,

shall be deleted; and

(e) immediately after paragraph (d) thereof, there shall

be added the following

“(e) the importation and wholesaling of

petroleum in a calendar year in quantities not exceeding

the amounts per type mentioned in the Fifth Schedule to

these regulations

Provided that the person importing or wholesaling

such petroleum shall submit to the Authority a signed

declaration in the form and manner established by

the Authority, that the amounts to be imported in the

particular calendar year shall not exceed the amounts

stated in the Fifth Schedule

Provided further that the person making such a

declaration in terms of the foregoing, shall pay to the

Authority a yearly administrative fee of €500 together

with the declaration and shall make in favour of the

Authority a bank guarantee of not less than € 2,500

which bank guarantee shall be paid in favour of the

Authority in case the declaration is found by the

Authority to be incorrect, false and, or incomplete.”.

In sub-regulation (1) of regulation 6 of the principal

regulations, for the words “activities and practices.” there shall be

substituted the words “activities and practices:”, and immediately

thereafter there shall be added the following proviso

“Provided that, the conditions for the granting of an

authorisation for a new establishment shall not duplicate

requirements and controls which are equivalent or essentially

comparable as regards their purpose to which the service

provider is already subject in another Member State or in

Malta.”.

Immediately after regulation 11 of the principal

regulation, there shall added the following new regulation

“11A. A person authorised to carry out the activity

of an importer and, or of a wholesaler of petroleum shall

pay to the Authority a regulation charge on every litre and,

or kilogram of imported fuel as may be specified in terms of

these regulations and, or authorisation conditions

Provided that a regulation charge shall not be due on the

fuels included in the Fourth Schedule to these regulations.”.

Sub-regulation (1) of regulation 13 of the principal

regulations shall be deleted and sub-regulation (2) thereof shall be

renumbered as regulation 13 thereof.

In paragraph (c) of regulation 14 of the principal

regulations for the words “these regulations.” there shall be

substituted the words “these regulations:”, and immediately

thereafter there shall be added the following provisos to the whole

regulation

“Provided that, any decision taken by the Authority,

including refusal or withdrawal of an authorisation, shall

be fully reasoned and shall be open to challenge before the

Appeals Board

Provided further that in case of failure by the Authority

to inform the applicant regarding any decision taken

concerning access to a service activity or the exercise thereof,

including refusal or withdrawal of an authorisation, shall

not mean in any manner whatsoever, that the Authority has

tacitly granted such authorisation and that the applicant has

automatically been granted access to a service activity or the

exercise thereof.”.

Sub-regulations (4) and (5) of regulation 15 of the

principal regulations shall be renumbered as sub-regulations

(5) and (6) respectively and immediately after subregulation (3)

thereof there shall be added the following new sub-regulation

“(4) The authorised provider shall inform the Authority

of any changes relating to his activity which result in the

conditions for his authorisation no longer being met and the

creation of subsidiaries whose activities fall within the scope

of the authorisation and, or the authorisation scheme.”.

The proviso of sub-regulation (2) of regulation 17 of the

principal regulations shall be deleted.

Regulation 18 of the principal regulations shall be

amended as follows:-

(a) sub-regulation (3) thereof shall be renumbered as

sub-regulation (4); and

(b) immediately after sub-regulation (2) thereof, there

shall be added the following

“(3) During the course of inspection the

authorised provider shall give all reasonable assistance

which such inspectors may require for that purpose.

The authorised provider shall not be entitled to any

compensation with regard to any samples lifted.”.

For regulation 33 of the principal regulations, there shall

be substituted the following

“33. The Authority may require a provider authorised

to carry out the activity of an importer and, or of a wholesaler

of petroleum to have a specific percentile of biofuel content

as part of the total annual aggregate of petroleum products

imported and wholesaled in the inland fuel market

Provided that such amount shall not exceed that specified

in any applicable standard or directive.”.

The First Schedule and the Second Schedule to the

principal regulations shall be substituted by the following new

Schedules

B

“FIRST SCHEDULE

Regulation 8(2)

Authorisation application fee payable in respect of an application for an

Authorisation to carry out the activity of an importer and, or wholesaler of

petroleum

The applicable fee for applying for an authorisation for carrying out the activity of

an importer and, or wholesaler of petroleum in the inland market is of !233

Authorisation to operate a primary storage facility

The applicable fee for applying for an authorisation for operating a primary

storage facility is of !233

Authorisation to carry out the activity of bottling of LPG

The applicable fee for applying for an authorisation for carrying out the activity of

bottling of LPG is of !233

Immediately after the Third Schedule to the principal regulations, there shall

be added the following new Schedules

“FOURTH SCHEDULE

Regulation 2, 11

Product

CN CODE

Comment as Listed in CN

CODE

Benzol (benzene)

2707 10 90

For purposes other than as a

power or heating fuel

Toluol (toluene)

2707 20 90

For purposes other than as a

power or heating fuel

Xylol (xylenes)

2707 30 90

For purposes other than as a

power or heating fuel

Other aromatic

2707 50 90

For purposes other than as a

hydrocarbon mixtures of

power or heating fuel

which 65 % or more by

B

volume (including losses)

distils at 250ºC by the

ASTM D 86 method

Phenols

2707 60 00

Creosote oils

2707 91 00

Sulphuretted toppings

2707 99 30

Basic products

2707 99 50

Anthracene

2707 99 70

Light oils and preparations

2710 11 11

For undergoing a specific

process

Light oils and preparations

2710 11 15

For undergoing chemical

transformation by a process

other than those specified in

respect of subheading 2710 11

White Spirit

2710 11 21

Medium oils

2710 19 11

For undergoing a specific

process

Gas oils

2710 19 31

For undergoing a specific

process

Gas oils

2710 19 35

For undergoing chemical

transformation by a process

other than those specified in

respect of subheading 2710 19

B

Lubricating oils; other oils

2710 19 71

For undergoing a specific

process

Lubricating oils; other oils

2710 19 75

For undergoing chemical

transformation by a process

other than those specified in

respect of subheading 2710 19

Liquids for hydraulic

2710 19 81

purposes

Motor oils, compressor

2710 19 83

lube oils, turbine lube oils

White oils, liquid paraffin

2710 19 85

Gear oils and reductor oils

2710 19 87

Metalworking compounds,

2710 19 91

mould–release oils, anti–

corrosion oils

Electrical insulating oils

2710 19 93

Other lubricating oils and

2710 19 99

other oils

Propane

2711 12 11

For purposes other than as a

power or heating fuel

Butanes

2711 13 10

For undergoing a specific

process

Butanes

2711 13 30

For undergoing chemical

B

transformation by a process

other than those specified in

respect of subheading 2710 13

Ethylene, propylene,

2711 14 00

buthylene and butadiene

Petroleum jelly; Crude

2712 10 10

Petroleum jelly; Other

2712 10 90

Paraffin wax containing by 2712 20 10

Synthetic paraffin wax of a

weight less than 0,75 % of

molecular weight of 460 or

oil

more but not exceeding 1 560

Paraffin wax containing by 2712 20 90

Other

weight less than 0,75 % of

oil

Bitumen and asphalt,

2714 10 00

Bituminous or oil–shale and tar

natural; bituminous or oil–

sands

shale and tar sands;

asphaltites and

asphaltic rocks

Bitumen and asphalt,

2714 90 00

Other

natural; bituminous or oil–

shale and tar sands;

asphaltites and

asphaltic rocks

Bituminous mixtures

2715 00 00

B

based on natural asphalt,

on natural bitumen, on

petroleum

bitumen, on mineral tar or

on mineral tar pitch (for

example, bituminous

mastics,

cut–backs)