Regulations, 2010

L.N. 38 of 2010

MALTA RESOURCES AUTHORITY ACT

(CAP. 423)

Water Supply and Sewerage Services (Amendment) (No. 2)

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 has made the following regulations

The title of these regulations is the Water Supply and

Sewerage Services (Amendment) (No. 2) Regulations, 2010, and

they shall be read and construed as one with the Water Supply and

Sewerage Services Regulations, 2004 hereinafter referred to as “the

principal regulations”.

Sub-regulation (2) of regulation 1 of the principal Amends regulation

regulations shall be renumbered as sub-regulation (3) thereof and regulations.

immediately after sub-regulation (1) thereof there shall be added

the following new sub-regulation

“(2) The scope of these regulations is to regulate the

licensing of water supply and sewerage services in Malta.

These regulations are being made for the safeguarding of

the public interest and public safety. Any requirements and,

or conditions contained therein, including those relating to

authorisations and licences, are being made for overriding

reasons relating to public interest.”.

Regulation 2 of the principal regulations shall be

amended as follows

(a) immediately after the definition “the Act” there shall

be added the following new definition

“ “authorisation” means any authorisation or

licence granted under these regulations and in relation

to services and service providers it means a permit,

licence, appointment, concession or any formal decision

concerning access to a service activity or the exercise

thereof;”;

(b) immediately after the definition “domestic sewage”

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;”;

(c) in the definition “licensee”, immediately after the

word “regulations” there shall be added the words “, or an

authorised provider who is authorised by the Authority in

terms of these regulations to carry out the activity regarding

the collection, purification and distribution of water, and also

regarding the disposal and treatment of waste water, 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;”;

(d) immediately after the definition “licensee” there shall

be added the following new definition

“ “Member State” means a member state of the

European Union;”;

(e) immediately after the definition “non-potable water”,

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 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 any of 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 fraud;

(g) the prevention of unfair competition; and

(h) the protection of the environment;”;

(f) immediately after the definition “public water

distribution network” 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;”;

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

there shall be added the following new definition

“ “service” means any self-employed activity

performed for an economic consideration;”;

(h) 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 provides a

service;”; and

(i) immediately after the definition “supply of water”

there shall be added the following new definition

“ “the Treaty” means the Treaty establishing the

European Community;”.

Regulation 6 of the principal regulations shall be

amended as follows

(a) for sub-regulation (1) thereof, there shall be

substituted the following

“(1) The provision of the services referred to in

regulation 3 hereof shall require a general authorisation

or an individual licence issued in terms of these

regulations or as provided by the Act.”;

(b) in sub-regulation (2) thereof, immediately after the

words “may prescribe” there shall be added the words “or as

provided by the Act”;

(c) in sub-regulation (3) thereof, for the words “sewerage

service licence.”, there shall be substituted the words

“sewerage service licence:”, and immediately thereafter there

shall be added the following proviso:-

“Provided that such procedures shall be in

accordance with the provisions of the Act.”;

(d) in sub-regulation (4) thereof, for the words “such

services.”, there shall be substituted the words “such

services:”, and immediately thereafter there shall be added

the following provisos:-

“Provided that such licenses shall only be required,

unless otherwise provided for, in terms of the Act

“Provided further 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 the

purpose to which the service provider is already subject

in another Member State or in Malta.”;

(e) in sub-regulation (7) thereof, for the words “by

the Authority.”, there shall be substituted the words “by the

Authority:”, and immediately thereafter there shall be inserted

the following proviso:-

“Provided that such duration shall not be

inconsistent with or contrary to the provisions of the

Act.”; and

(f) in sub-regulation (8) thereof, for the words “for

any specified service to reach objectives of national interest

such as consumer protection, fair competition and the securing

of public service obligations.”, there shall be substituted

the words “for services regulated by these regulations:” and

immediately thereafter there shall be inserted the following

proviso:-

“Provided that such limitation shall be justified by

means of overriding reasons relating to public interest

and in accordance with the provisions of the Act and of

the Services in the Internal Market Act.”.

Regulation 7 of the principal regulations shall be

renumbered as sub-regulation (1) thereof and immediately

after sub-regulation (1) as renumbered, there shall be added the

following new sub-regulation

“(2) The criteria established for the issue of any

authorisation under these regulations shall be non-

discriminatory, proportionate, clear and unambiguous,

objective, made public in advance, transparent and

accessible.”.

In paragraph (b) of sub-regulation (5) of regulation 8 of

the principal regulations, for the words “licence conditions;”,

there shall be substituted the words “licence conditions:” and

immediately thereafter, there shall be added the following proviso

“Provided that the authorised provider shall inform

the Authority of any changes relating to his service 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.”.

In the proviso to sub-regulation (1) of regulation 9 of the

principal regulations, for the words “that the Authority may deem

relevant.”, there shall be substituted the words “that the Authority

may deem relevant:”, and immediately thereafter, there shall be

added the following provisos

“Provided further 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 also 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.”.

Immediately after regulation 15 of the principal

regulations, there shall be added the following new regulation

Notwithstanding any other law, proceedings

“Commencement

of proceedings.

for an offence against these regulations may be

commenced at any time within six years from the

commission of the offence.”.

€0.56