Insurance Undertakings) (Amendment) Regulations, 2015

Suppliment tal-Gazzetta tal-Gvern ta’ Malta, Nru. 19,509, 10 ta’ Diċembru, 2015

L.N. 403 of 2015

INSURANCE BUSINESS ACT

(CAP. 403)

Insurance Business (Reorganisation and Winding Up of

Insurance Undertakings) (Amendment) Regulations, 2015

IN exercise of the powers conferred by article 41(6) of the

Insurance Business Act, the Minister for Finance, after consultation

with the Malta Financial Services Authority, has made the following

regulations:-

(1) The title of these regulations is the Insurance Citation and

Business (Reorganisation and Winding Up of Insurance commencement.

Undertakings) (Amendment) Regulations, 2015 and these regulations

shall be read and construed as one with the Insurance Business S.L. 403.15

(Reorganisation and Winding Up of Insurance Undertakings)

Regulations, hereinafter referred to as ''the principal regulations''.

(2) These regulations shall come into force on the 1st January

2016.

Regulation 2 of the principal regulations shall be amended Amends

regulation 2 of

as follows

the principal

regulations.

(a)

in sub-article (1) thereof

(i) for the definition ''administrator'', there shall

be substituted the following

'' ''administrator'' means

(a) in Malta, any person or body

appointed by the relevant authorities for the

purpose of administering reorganisation

measures; or

(b) in another Member State or EEA

State, any person or body appointed by the

foreign administrative or judicial authorities

or by the governing bodies of an insurance

undertaking authorised in that Member State

or EEA State for the purposes of

administering reorganisation measures;'';

(ii) in the definition ''branch'', for the words ''or

an EEA State other than the home State'', there shall be

substituted the words ''or an EEA State, other than the

home Member State,'';

(iii) for the definition ''the competent authority'',

there shall be substituted the following

'' ''competent authority'' means the Malta

Financial Services Authority established by

the Malta Financial Services Authority Act;'';

(iv) in the definition ''EEA State'', for the words

''means a State, other than Malta, which is'', there shall be

substituted the words ''means a State, which is'';

(v) in the definition ''European insurance

undertaking'', for the words ''within the meaning of article

1 of Directive 73/239/EEC or article 2 of Directive 2002/

83/EC which has received authorisation under article 6 or

article 4 respectively;'', there shall be substituted the words

''within the meaning of Article 2 of the Solvency II

Directive, which has received authorisation under Article

14 of the Solvency II Directive;'';

(vi) for the definition ''foreign authority'', there

shall be substituted the following

'' ''foreign authority'' means the supervisory

authorities of a Member State or an EEA State,

other than Malta, within the meaning of Article

13(10) of the Solvency II Directive;'';

(vii) in the definition ''host Member State'', for the

words ''other than the home State'', there shall be

substituted the words ''other than the home Member State'';

(viii) for the definition ''insurance claims'', there

shall be substituted the following

'' ''insurance claim'' means

(a) any amount which is owed by an

insurance undertaking to insured persons,

policyholders, beneficiaries or any injured

party having direct right of action against the

insurance undertaking and which arises from

an insurance contract or from any operation

provided for in Articles 2(3)(b) and (c) of the

Solvency II Directive in direct insurance

business, including an amount set aside for

those aforementioned persons, when some

elements of the debt are not known; and

(b) the premium owed by an insurance

undertaking as a result of the non-conclusion

or cancellation of an insurance contract or any

operation referred to in paragraph (a) in

accordance with the law applicable to such a

contract

or

operation

before

the

commencement

of

the

winding-up

proceedings;'';

(ix) for the definition ''liquidator'', there shall be

substituted the following

'' ''liquidator'' means -

(a) in Malta, a liquidator appointed

under the Companies Act or the Act, as

applicable,

to

a

Maltese

insurance

undertaking and includes the Official

Receiver when acting in the capacity of

liquidator; or

(b) in another Member State or EEA

State, any person or body appointed by the

foreign authorities, foreign administrative or

judicial authorities or by the governing bodies

of an insurance undertaking authorised in that

Member State or EEA State, for the purposes

of administering winding up proceedings;'';

(x) in the definition ''Maltese insurance

undertaking'', for the words ''means a company whose head

office is in Malta'', there shall be substituted the words

''means an undertaking whose head office is in Malta'';

(xi) in the definition ''Member State'', for the

words ''of the European Communities;'', there shall be

substituted the words ''of the European Union;'';

(xii) immediately after the definition ''Member

State'', there shall be added the following new definition

'' ''relevant authorities'' means the authorities,

as defined in Article 268(1)(a) of the Solvency II

Directive, which are competent for the purposes of

the reorganisation measures or the winding-up

proceedings in Malta, including the court and the

competent authority;'';

(xiii) in the definition ''reorganisation measures'',

for the words ''involving any intervention by the court

under Part VI of the Companies Act or by the'', there shall

be substituted the words ''involving any intervention by the

relevant authorities or by the foreign authorities, or'';

(xiv) for the definition ''winding-up proceedings'',

there shall be substituted the following

'' ''winding-up proceedings'' means the

collective proceedings involving the realisation of

the assets of an insurance undertaking and the

distribution of the proceeds among the insurance

creditors, creditors, shareholders or members as

appropriate, which necessarily involve any

intervention by the relevant authorities or by

foreign authorities or foreign administrative or

judicial authorities, including where the collective

proceedings are terminated by a composition or

other analogous measure, whether or not they are

founded on insolvency or are voluntary or wound

up by the court.''; and

(b) for sub-article (2) thereof, there shall be substituted

the following

''(2) Words and expressions used in these

regulations which are also used in the Act, but which are

not defined herein, shall have the same meaning as in the

Regulation 3 of the principal regulations shall be amended

(a)

for sub-regulations (1) and (2) thereof, there shall be

substituted the following

''(1) Only the relevant authorities shall be entitled

to decide on the reorganisation measures with respect to a

Maltese insurance undertaking, including its branches.

(2) Reorganisation measures adopted in respect

of a Maltese insurance undertaking, including its branches

established in host Member States shall be governed by the

Act or the Companies Act, as applicable, unless otherwise

provided by regulations 19 to 28

Provided that, reorganisation measures shall

not preclude the dissolution and consequential winding up

of the Maltese insurance undertaking concerned.'';

(b) in sub-regulation (3) thereof, for the words

''reorganisation measures shall be fully effective in other

Member States or EEA States in accordance with the

Companies Act without any further formalities,'', there shall be

substituted the words ''reorganisation measures adopted

pursuant to sub-regulation (2) shall be fully effective in other

Member States or EEA States without any further formalities,'';

and

(c)

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

''reorganisation measures shall be effective in other Member

States or EEA States'', there shall be substituted the words

''reorganisation measures adopted pursuant to sub-regulation (2)

shall be effective in other Member States or EEA States''.

Regulation 4 of the principal regulations shall be amended Amends

regulation 4 of

as follows

the principal

regulations.

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

substituted the following

''(1) Where the relevant authority is not the

competent authority, the relevant authorities shall inform,

as a matter of urgency the competent authority of their

decision on any reorganisation measure, in order to obtain

its views on the adoption of such measures and the

practical effects which it may have, before the adoption of

such measure and failing that immediately thereafter.'';

(b)

sub-regulation (2) thereof shall be amended as

follows

(i) for the words ''Where the court makes a

decision,'', there shall be substituted the words ''Where the

court is the relevant authority and makes a decision,'';

(ii) in paragraph (b) thereof, for the words ''in

accordance with article 329B,'', there shall be substituted

the words ''in accordance with article 329B of the

Companies Act,'';

(iii) in the paragraph immediately following

paragraph (b) thereof, for the words ''which has been

made.'', there shall be substituted the words ''which has

been made:'', and immediately thereafter there shall be

added the following new proviso

''Provided that, where the reorganisation

measure involves a company recovery order in

terms of the Companies Act, the provisions of

article 329B(3)(d) of the Companies Act shall

apply.''; and

(c)

sub-regulation (3) thereof shall be amended as

(i) for the words ''inform the foreign authority of

the decision to adopt reorganisation measures'', there shall

be substituted the words ''inform all foreign authorities of

the decision to adopt reorganisation measures''; and

(ii) in paragraph (b) thereof, for the words ''under

contracts of insurance and carried out'', there shall be

substituted the words ''under contracts of insurance

effected and carried out''.

Regulation 5 of the principal regulations shall be amended

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

substituted the following

''(1) The administrator or any other person

appointed by the relevant authorities shall make public any

decision on a reorganisation measure by

(a) publishing a notice of the decision in at

least two local daily newspapers, of which one is

published in the Maltese language and the other in

the English language, and the text of the measure

shall be, in Maltese in the Maltese daily, and in

English in the English daily; and in any other

manner as determined by the relevant authorities;

and

(b)

publishing

an

extract

from

the

document establishing the reorganisation measure

in the Official Journal of the European Union in the

English and the Maltese language at the earliest

opportunity.'';

(b)

sub-regulation (2) thereof shall be deleted;

(c)

sub-regulations (3), (4), (5) and (6) thereof shall be

renumbered as sub-regulations (2), (3), (4), and (5) respectively;

(d) for sub-regulation (2) thereof, as renumbered, there

shall be substituted the following

''(2) The publication made pursuant to sub-

regulation (1) shall specify

(a) the name of the relevant authorities;

(b) a summary of the terms of the decision,

appointment or order, as the case may be;

(c) the name of the administrator or any

other person involved in the reorganisation

measures, if any; and

(d) the statutory provisions in accordance

with which the decision, appointment or order has

been made.'';

(e) in sub-regulation (3) thereof as renumbered, for the

words ''set out in sub-regulations (1), (2) and (3) and fully

effective against creditors, unless the court provides

otherwise.'', there shall be substituted the words ''set out in sub-

regulations (1) and (2) and shall be fully effective against

creditors, unless the relevant authorities, the provisions of the

Companies Act or the Act, as applicable, provide otherwise.'';

(f)

in sub-regulation (4) thereof, as renumbered, for the

words ''publish information imposed upon the administrator in

accordance with Part VI of the Companies Act.'', there shall be

substituted the words ''publish information imposed upon the

administrator in accordance with the Companies Act.'';

(g) for sub-regulation (5) thereof, as renumbered, there

shall be substituted the following

''(5) Without prejudice to the provisions of the

Companies Act, where the reorganisation measure affects

exclusively the rights of shareholders, members or

employees of a Maltese insurance undertaking considered

in those capacities, sub-regulations (1) and (2) shall not

apply; and in such a case, the relevant authorities shall

determine the manner in which shareholders, members and

employees affected by such reorganisation measures shall

be informed.''.

Regulation 6 of the principal regulations shall be amended

as follows

(a) for sub-regulations (1) and (2) thereof, there shall be

substituted the following

''(1)

Subject to sub-regulation (2), the

administrator or any person appointed for this purpose by

the relevant authorities shall, without delay, inform by

written notice all known creditors individually, including

creditors who have their habitual place of residence,

domicile or head office outside of Malta, of the

reorganisation measures which have commenced.

(2) The written notice referred to in sub-

regulation (1) shall also include the following information

(a) the reorganisation measures which have

commenced in relation to a Maltese insurance

undertaking;

(b) the date from which that decision, order

or appointment relating to reorganisation measures

of the Maltese insurance undertaking has effect;

(c) if applicable, the date by which a

creditor must lodge his claim in writing or submit

any written observations concerning his claim;

(d) the matters which must be stated in a

creditor’s claim;

(e) whether creditors whose claims are

preferential or secured in rem, need to lodge their

claims;

(f) the details of the person to whom any such

claim or any written observations on a claim must

be lodged; and

(g) the consequence of any failure to lodge

a claim or submit written observations by any

specified time limit.'';

(b)

sub-regulation (3) thereof shall be amended as

(i)

in paragraph (a) thereof

(aa) for the words ''the effect which the

decision will, or is likely to have'', there shall be

substituted the words ''the effect which the decision

will have, or is likely to have''; and

(bb) for the words ''is founded; and'', there

shall be substituted the words ''is founded;'';

(ii) in paragraph (b) thereof, for the words ''that

contract has effect.'', there shall be substituted the words

''that contract has effect; and'';

(iii) immediately after paragraph (b) thereof, there

shall be added the following new paragraph

''(c) the date on which the insurance

contracts or operations will cease to produce effect

and the rights and duties of insured persons with

regard to the contract or operation.'';

(c)

for sub-regulation (4) thereof, there shall be

substituted the following

''(4) For the purposes of this regulation, a creditor

is a ''known'' creditor, if the persons mentioned in sub-

regulation 2(f) are aware of, or should reasonably be aware

(a)

the identity of the creditor;

(b) a claim or potential claim of the

creditor, and

(c) a recent address where the creditor is

likely to receive a communication.''.

Regulation 7 of the principal regulations shall be amended Amends

regulation 7 of

the principal

regulations.

(a) sub-regulations (1) and (2) thereof shall be

renumbered as sub-regulations (2) and (3) respectively;

(b) immediately before sub-regulation (2) thereof, as

renumbered, there shall be added the following new sub-

regulation

''(1) Any creditor, including public authorities, of

a Maltese insurance undertaking, having their habitual

place of residence, domicile or head office outside of

Malta, shall have the right to lodge claims or to submit

written observations relating to claims.'';

(c)

for sub-regulation (2) thereof, as renumbered, there

shall be substituted the following

''(2) For the avoidance of doubt, the claims of all

creditors having their habitual place of residence, domicile

or head office outside of Malta shall be treated in the same

way and accorded the same ranking as claims of an

equivalent nature which may be lodged by creditors who

have their habitual place of residence, domicile or head

office in Malta.''; and

(d) for paragraph (e) of sub-regulation (3) thereof, as

renumbered, there shall be substituted the following

''(e) where appropriate, the assets that are covered

by his security.''.

Regulation 8 of the principal regulations shall be amended

as follows

(a) for the marginal note thereto, there shall be

substituted the following: ''Submission of claims by creditors.'';

(b) for sub-regulations (1), (2) and (3) thereof, there

shall be substituted the following

''(1) Subject to sub-regulation (3), the information

in the notice referred to in regulation 6 shall be provided in

the Maltese and, or English language, as appropriate, or

any other language as agreed to with the relevant

authorities.

(2) The notice referred to in sub-regulation (1)

shall, in the case of the lodging of claims, be headed with

the words ''Invitation to lodge a claim: time limits to be

observed'', and in the case of submission of observations

relating to claims, it shall be headed ''Invitation to submit

observations relating to a claim: time limits to be

observed'', and such heading shall be written in every

official language of the European Union or any other

language as agreed to with the relevant authorities.

(3) Where the known creditor is an insurance

creditor, the information in the notice referred to in

regulation 6 shall be provided in the domestic language of

such creditor.'';

(c)

sub-regulation (4) thereof shall be amended as

follows

(i) for the words ''relating to his claim'', there

shall be substituted the words ''relating to such claim'';

(ii) in paragraph (a) thereof, for the words ''where

creditor submits a claim'', there shall be substituted the

words ''where a creditor submits a claim''; and

(d) for sub-regulation (5) thereof, there shall be

substituted the following

''(5) For the purposes of this regulation, "domestic

language" in relation to a creditor means the official

language, or one of the official languages of the Member

State or EEA State in which he is habitually resident or

domiciled or, if the creditor is not an individual, the place

in which the creditor’s head office is located.''.

For regulation 9 of the principal regulations there shall be Substitutes

regulation 9 of

substituted the following

the principal

regulations.

'' Commencement

9. Without prejudice to article 28(1)

of winding up

of the Act, a decision concerning the

proceedings in

dissolution and winding up of a Maltese

Malta.

insurance undertaking, including its branches

in host Member States, shall only be taken by

the relevant authorities in Malta

Provided that, the decision to

dissolve and wind-up a Maltese insurance

undertaking, including its branches in host

Member States, may be taken in the absence,

or following the adoption of reorganisation

measures.

B

(2) Where the relevant authority is not

the competent authority, the relevant

authorities shall, upon receipt of an

application for winding up proceedings,

inform the competent authority regarding this

request in order to obtain its views on the

adoption of such measures and the practical

effect which they may have.

(3) Where the court takes a decision

concerning the dissolution and consequential

winding up with respect to a Maltese

insurance undertaking, including its branches

established in any Member State or EEA

State, which includes an order or appointment

of -

(a)

a winding up order under

article 219 of the Companies Act; or

(b) the appointment of a

provisional administrator under article

228 of the Companies Act;

it shall immediately inform the competent

authority, or cause the competent authority to

be informed without delay of the decision,

order or appointment which has been made.

(4) Where an arrangement has been

concluded pursuant to article 291 of the

Companies Act, any person appointed by the

Maltese insurance undertaking or creditors

shall inform the competent authority of the

arrangement which has been approved.

(5) Where a liquidator is appointed in

a creditor’s voluntary winding-up as

mentioned in article 230 of the Companies

Act, the liquidator shall inform the competent

authority of his appointment.

(6) Without prejudice to article 42 of

the Act, where in the case of a member’s

voluntary winding up, a liquidator is

appointed in terms of article 270 of the

Companies Act, the liquidator shall inform

the competent authority of his appointment;

and in addition, where the provisions of

article 272 of the Companies Act apply, the

liquidator shall inform the competent

authority that he is of the opinion that the

Maltese insurance undertaking will not be

able to pay its debts within the period stated

in the declaration of solvency.

(7) For the avoidance of doubt, where

the competent authority issues an order for

the dissolution and winding up in terms of

article 28 of the Act, any disposition of the

property of the company or any other act

which would otherwise require the written

approval of the competent authority in terms

of the Act, made after the date of the said

order, shall be void, unless the competent

authority otherwise approves in writing.

(8) Where the competent authority is

informed of a decision, order or appointment

in accordance with sub-regulations (3) to (6),

the competent authority shall in turn, without

delay and by any means available inform the

foreign authority in all Member States or

EEA States -

(a)

that a decision, order or

appointment has been made, and

(b) the possible effects of a

decision, order or appointment of that

kind on -

(i) the business of the

Maltese insurance undertaking,

and

(ii)

the

rights

of

policyholders under contract of

insurance effected and carried out

by

the

Maltese

insurance

undertaking.

(9) A decision concerning the

dissolution and winding up of a Maltese

insurance undertaking, including its branches

in host Member States, adopted in accordance

with the Companies Act or the Act, as

applicable, shall be recognised in other

Member States or EEA States without any

further formalities, and shall be effective as

soon as the decision is effective in Malta.

(10) Nothing contained in these

regulations shall prejudice the powers of the

competent authority in relation to winding up

proceedings with respect to a Maltese

insurance undertaking, including its branches

established in host Member States, where

provided for in the Act.''.

Regulation 10 of the principal regulations shall be

amended as follows

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

accordance with the Companies Act.'', there shall be substituted

the words ''in accordance with these regulations and the

Companies Act as made applicable by these regulations.'';

(b)

in sub-regulation (3) thereof

(i) for the words ''matters determined in

paragraphs (a) to (m) are to be determined in accordance

with the Companies Act.'', there shall be substituted the

words ''matters set out in paragraphs (a) to (m) shall be

determined in accordance with the applicable Maltese

law.'';

(ii) in paragraph (b) thereof, for the words ''or

devolving on,'', there shall be substituted the words ''or

devolving to,'';

(iii) in paragraph (e) thereof, for the words ''which

the affected Maltese insurance undertaking'', there shall be

substituted the words ''which the Maltese insurance

undertaking'';

(iv) in paragraph (f) thereof, for the words ''the

effects of the winding up proceedings brought by

individual creditors,'', there shall be substituted the words

''the effects of the winding up proceedings on proceedings

brought by individual creditors,'';

(v) in paragraph (h) thereof, for the words

''arising after the making of the winding up proceedings;'',

there shall be substituted the words ''arising after the

commencement of the winding up proceedings;'';

(vi) in sub-paragraph (iv) of paragraph (i) thereof,

for the words ''after the opening of the winding up order'',

there shall be substituted the words ''after the making of

the winding up order'';

(vii) in paragraph (j) thereof, for the words ''the

effects of closure of winding up proceedings,'', there shall

be substituted the words ''the effects of completion of

winding up proceedings,'';

(viii) in paragraph (k) thereof, for the words ''after

the closure of the winding up proceedings;'', there shall be

substituted the words ''after the completion of the winding

up proceedings;'';

(ix) in paragraph (m) thereof, for the words ''rules

relating to the voidness, violability or unenforceability'',

there shall be substituted the words ''rules relating to the

nullity, voidability or unenforceability''; and

(x) in the proviso thereto, for the words ''and the

provisions of the Companies Act'', there shall be

substituted the words ''and the provisions of any other

law''.

For regulation 11 of the principal regulations, there shall Amends

regulation 11 of

be substituted the following

the principal

regulations.

''11. Notwithstanding the provisions of any other law, the

assets of the Maltese insurance undertaking which are

prohibited from being freely disposed of under article 41(2) of

the Act, or by virtue of or under any other provision of the said

Act, shall be available only for meeting the liabilities of the

undertaking arising out of its business of insurance

Provided that, insurance claims shall rank before

any other claim against such assets.''.

In regulation 12 of the principal regulations, for the words Amends

''have been subrogated to Protection and Compensation Fund'', there regulation

the principal

shall be substituted the words ''have been subrogated to the Protection regulations.

and Compensation Fund''.

Regulation 13 of the principal regulations shall be

amended as follows

(a)

in sub-regulation (1) thereof, for the words ''in terms

of article 25(b) of the Act, except to the extent necessary for the

purposes of sub-regulation (2), if the authorisation has not been

previously suspended or revoked.'', there shall be substituted the

words ''in terms of article 25(a) of the Act, except to the extent

necessary for the purposes of sub-regulation (3).'';

(b) sub-regulation (2) thereof shall be renumbered as

sub-regulation (3) and immediately after sub-regulation (1)

thereof, there shall be added the following new sub-regulation

''(2) Where any action has been taken in terms of

sub-regulation (1), the provisions set out in article 27(5) of

the Act shall apply.''; and

(c) in sub-regulation (3) thereof, as renumbered, for the

words ''shall not prevent the liquidator or any other person

entrusted by the court from carrying on some of the Maltese

insurance undertaking’s activities'', there shall be substituted the

words ''shall not prevent the liquidator or any other person

appointed by the relevant authorities from carrying on some of

the Maltese insurance undertaking’s activities''.

Regulation 14 of the principal regulations shall be

amended as follows

(a)

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

substituted the following

''(1) Where -

(a) an arrangement has been entered into

between a Maltese insurance undertaking and its

creditors in terms of article 291 of the Companies

Act;

(b) an order has been made appointing a

provisional administrator in accordance with article

228 of the Companies Act;

(c) a winding up order has been made by

the court under Title II of Part V of the Companies

Act; or

(d) a liquidator has been appointed in terms

of article 28(1) of the Act, or articles 230 or 270 of

the Companies Act,

the relevant authority, the liquidator or any person

appointed for that purpose by the relevant authority shall

publish

(i) an extract from the decision or order to

commence winding-up proceedings in at least two

local daily newspapers, of which one is published

in the Maltese language and the other in the

English language, and the text of the proceedings

shall be, in Maltese in the Maltese daily, and in

English in the English daily; and in any other

manner as determined by the relevant authority;

and

(ii) an extract from the winding up decision

in the Official Journal of the European Union in the

English and the Maltese language at the earliest

opportunity.'';

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

regulations (3), (4) and (5) shall be renumbered as sub-

regulations (2), (3) and (4) respectively;

(c)

in sub-regulation (2) thereof, as renumbered

(i) for the words ''the decision to commence

winding up proceedings'', there shall be substituted the

words ''the decision made pursuant to sub-regulation (1)'';

(ii) in paragraph (a) thereof, for the words ''the

name of the court;'', there shall be substituted the words

''the name of the relevant authority;'';

(d) in sub-regulation (3) thereof, as renumbered, for the

words ''on the relevant officer under the provisions'', there shall

be substituted the words ''on the relevant authority under the

provisions''; and

(e)

in sub-regulation (4) thereof, as renumbered

(i) for the words '' ''relevant officer'' '', there shall

be substituted the words '' ''relevant authority '' '';

(ii) in paragraph (a) thereof, for the words ''in the

case of a arrangement'', there shall be substituted the words

''in the case of an arrangement'';

(iii) paragraphs (c) and (d) thereof shall be

renumbered as paragraphs (d) and (e) respectively;

(iv) immediately after paragraph (b) thereof, there

shall be added the following new paragraph;

''(c) in the case of a members’ voluntary

winding up, the liquidator;'';

(v) in paragraph (d) thereof, as renumbered, for

the words ''the liquidator; and'', there shall be substituted

the words ''the liquidator;'';

(vi) for paragraph (e) thereof, as renumbered,

there shall be substituted the following

''(e) in the case of an order appointing a

provisional

administrator,

the

provisional

administrator; and'';

(viii) immediately after paragraph (e) thereof, as

renumbered, there shall be added the following new

paragraph;

''(f) a liquidator appointed in terms of

article 28 of the Act.''.

Regulation 15 of the principal regulations shall be

amended as follows

(a) for sub-regulations (1) and (2) thereof, there shall be

substituted the following

''(1) Subject to sub-regulation (2), the liquidator or

any other person appointed for this purpose by the relevant

authorities shall without delay inform by written notice all

known creditors individually, including creditors who have

their habitual place of residence, domicile or head office

outside of Malta, of the commencement of winding-up

proceedings.

(2) The written notice referred to in sub-

regulation (1) shall also include the following information

(a)

that winding-up proceedings have

commenced in relation to a Maltese insurance

undertaking;

(b)

the date from which that decision to

wind up the Maltese insurance undertaking has

effect;

(c)

the date, if applicable, by which a

creditor must lodge his claim in writing or submit

written observations concerning his claim;

(d)

the matters which must be stated in a

creditor’s claim;

(e)

whether creditors whose claims are

preferential or secured in rem, need to lodge their

claims;

(f)

the details of the person to whom any

such claim or any observations on a claim must be

submitted; and

(g)

the consequence of any failure to

lodge a claim or written observations by any

specified time limit.'';

(b)

in sub-regulation (3) thereof

(i)

in paragraph (a) thereof

(aa) for the words ''the decision will, or is

likely to have'', there shall be substituted the words

''the decision will have, or is likely to have''; and

(bb) for the words ''is founded; and'', there

shall be substituted the words ''is founded;'';

(ii) for paragraph (b) thereof, there shall be

substituted the following

''(b) the date from which any variations

resulting from the order or decision to the risks

covered by, or the sums recoverable under, that

contract has effect; and'';

(iii) immediately after paragraph (b) thereof,

there shall be added the following new paragraph

''(c) the date on which the insurance

contracts or operations will cease to produce effect

and the rights and duties of insured persons with

regard to the contract or operation.'';

(c)

for sub-regulation (4) thereof there shall be

substituted the following

''(4) For the purposes of this regulation, a creditor

is a "known" creditor if the persons mentioned in sub-

regulation (2)(f) are aware of, or should reasonably be

aware of -

(a)

the identity of the creditor;

(b) the claim or potential claim of the

creditor; and

(c) a recent address where the creditor is

likely to receive a communication.''.

Regulation 16 of the principal regulations shall be

amended as follows

(a) sub-regulations (1) and (2) thereof shall be

renumbered as sub-regulations (2) and (3) respectively;

(b) immediately before sub-regulation (2) thereof, as

renumbered, there shall be added the following new sub-

regulation

''(1) Any creditor, including public authorities, of

a Maltese insurance undertaking, having their habitual

place of residence, domicile or head office outside of

Malta, shall have the right to lodge claims or to submit

written observations relating to claims.'';

(c)

for sub-regulation (2) thereof, as renumbered, there

shall be substituted the following

''(2) For avoidance of doubt, the claims of all

creditors having their habitual place of residence, domicile

or head office outside of Malta shall be treated in the same

way and accorded the same ranking as claims of an

equivalent nature which may be lodged by creditors who

have their habitual place of residence, domicile or head

office in Malta.''; and

(d) for paragraph (e) of sub-regulation (3) thereof as

renumbered, there shall be substituted the following

''(e) where appropriate, the assets that are covered

by his security.''.

Regulation 17 of the principal regulations shall be Amends

regulation 17 of

amended as follows

the principal

regulations.

(a) for the marginal note thereto, there shall be

substituted the following

''Submission of claims by creditors.'';

(b) for sub-regulations (1), (2) and (3) thereof, there

shall be substituted the following

''(1) Subject to sub-regulation (3), the information

in the notice referred to in regulation 15 shall be provided

in the Maltese and/or English language, as appropriate, or

any other language as agreed to with the relevant

authorities.

(2) The notice referred to in sub-regulation (1)

shall, in the case of the lodging of claims, be headed with

the words ''Invitation to lodge a claim: time limits to be

observed'', and in the case of submission of observations

relating to claims, it shall be headed ''Invitation to submit

observations relating to a claim: time limits to be

observed'' and such heading shall be written in every

official language of the European Union, or any other

language as agreed to with the relevant authorities.

(3) Where the known creditor is an insurance

creditor, the information in the notice referred to in

regulation 15 shall be provided for in the domestic

language of such creditor.'';

(c)

in sub-regulation (4) thereof

(i) for the words ''relating to his claim,'', there

shall be substituted the words ''relating to such claim,'';

(ii) in paragraph (b) thereof, for the words ''where

an insurance creditor submits'', there shall be substituted

the words ''where a creditor submits''; and

(d)

for sub-regulation (5) thereof, there shall be

substituted the following

''(5) For the purposes of this regulation, ''domestic

language'' in relation to a creditor means the official

language, or one of the official languages of the Member

State or EEA State in which he is habitually resident or

domiciled or, if the creditor is not an individual, the

language of the Member State or EEA State in which the

creditor’s head office is located.''.

Regulation 18 of the principal regulations shall be

amended as follows

(a) in sub-regulation (1) thereof, for the words ''a

liquidator appointed in terms of article 219 and article 230 of

the Companies Act, the provisional administrator appointed in

terms of article 228 or any other person appointed for this

purpose by the court shall send'', there shall be substituted the

words ''a liquidator or any other person appointed for this

purpose by the relevant authorities shall send'';

(b) in sub-regulation (2) thereof, for the words ''where a

liquidator or provisional administrator is required by order of

the court'', there shall be substituted the words ''where a

liquidator or any other person appointed by the relevant

authorities is required by such authorities'';

(c)

in sub-regulation (3) thereof, for the words ''imposed

by the court on the liquidator or provisional administrator,

which is supplementary'', there shall be substituted the words

''imposed by the relevant authorities, on the liquidator or any

other person appointed by the relevant authorities, which is

supplementary''; and

(d) immediately after sub-regulation (3) thereof, there

shall be added the following new sub-regulation

''(4) Upon a request received from a foreign

authority, for information on developments in the winding

up procedure, the competent authority shall provide such

information.''.

Immediately

after

regulation

of

the

principal

regulations, there shall be added the following new regulations

'' Winding up of

18A. Where a Maltese insurance

Maltese

undertaking is wound up, commitments

insurance

arising out of contracts underwritten through

undertakings.

a branch or under the freedom to provide

services shall be met in the same way as those

arising out of the other insurance contracts of

that undertaking, without distinction as to

nationality as far as the persons insured and

the beneficiaries are concerned.

18B. Where a Maltese reinsurance

Winding up of

Maltese

undertaking authorised under the Act is

reinsurance

undertakings.

wound up, commitments arising out of

contracts underwritten through a branch or

under the freedom to provide services shall be

met in the same way as those arising out of

the other reinsurance contracts of that

undertaking.''.

For sub-regulation (1) of regulation 19 of the principal Amends

regulation 19 of

regulations, there shall be substituted the following

the principal

regulations.

''(1) Without prejudice to regulations 3 and 10, the

effects of a reorganisation measure or of winding up

proceedings on European employment contracts and European

employment relationships are to be determined exclusively in

accordance with the laws of the Member State or EEA State

applicable to the said contract or relationship.''.

For regulation 20 of the principal regulations there shall be Substitutes

regulation 20 of

substituted the following

the principal

regulations.

'' Contracts in

20. The effects of a reorganisation

connection with

measure or of winding up proceedings on

immovable

contracts conferring the right to make use of

property.

or acquire immovable property, shall be

determined exclusively by the law of the

Member State or EEA State where the

immovable property is situated.''.

Regulation 21 of the principal regulations shall be Amends

regulation 21 of

amended as follows

the principal

regulations.

(a) for the words ''winding up proceedings on a right of

the Maltese insurance undertaking'', there shall be substituted

the words ''of winding up proceedings on the rights of the

Maltese insurance undertaking'';

(b) in paragraph (c) thereof, for the words ''an aircraft'',

there shall be substituted the words ''an aircraft,''; and

(c)

for the paragraph immediately following paragraph

(c) thereof, there shall be substituted the following

''subject to registration in a public register, are to be

determined exclusively by the law of the Member State or

EEA State under the authority of which that register is

kept.''.

Regulation 22 of the principal regulations shall be

amended as follows

(a) for the marginal note thereto, there shall be

substituted the following

''Rights in rem of third parties.'';

(b)

sub-regulation (1) thereof, shall be amended as

follows

(i) for the words ''The commencement of

reorganisation measures or winding-up proceedings'', there

shall be substituted the words ''The adoption of

reorganisation measures or commencement of winding-up

proceedings'';

(ii) for the words ''within the territory of a

Member State or an EEA State at the time of the opening

of such measures or proceedings.'', there shall be

substituted the words ''within the territory of a Member

State or an EEA State, other than Malta, at the time of the

commencement of such measures or proceedings.'';

(c)

in sub-regulation (2) thereof

(i) for the words ''shall in particular mean -'',

there shall be substituted the words ''shall include at least

-'';

(ii) in paragraph (a) thereof, for the words ''by

virtue of a lien, or mortgage;'', there shall be substituted the

words ''by virtue of a lien, or a mortgage;'';

(iii) in paragraph (b) thereof, for the words ''by

way of guarantee;'', there shall be substituted the words ''by

way of a guarantee;'';

(iv) in paragraph (c) thereof, for the words

''demand the assets from, and, or to require restitution'',

there shall be substituted the words ''demand the assets

from, or to require restitution'';

(v) for paragraph (d) thereof, there shall be

substituted the following

''(d) a right to the beneficial use of assets.'';

(d) in sub-regulation (3) thereof, for the words ''under

which a right in rem within the meaning of subregulation (1)

may be obtained, is also to be treated as a right in rem for the

purposes of this regulation.'', there shall be substituted the

words ''under which a right in rem within the meaning of sub-

regulation (1) may be obtained, shall be considered to be a right

in rem.''; and

(e)

for sub-regulation (4) thereof, there shall be

substituted the following

''(4) Sub-regulation (1) shall not preclude actions

for nullity, voidability or unenforceability of legal acts

detrimental to all the creditors as referred to in regulation

10(3)(m).''.

For regulation 23 of the principal regulations there shall be Substitutes

regulation 23 of

substituted the following

the principal

regulations.

'' Reservation of

23. (1)

The

adoption

of

title.

reorganisation measures or commencement of

winding-up proceedings in relation to a

Maltese insurance undertaking purchasing an

asset, shall not affect the rights of a seller

based on a reservation of title where at the

time of the commencement of such measures

or proceedings the asset is situated within the

territory of a Member State or EEA State,

other than in Malta.

(2) The adoption of reorganisation

measures or commencement of winding-up

proceedings against a Maltese insurance

undertaking selling an asset, after the delivery

of the asset, shall not constitute grounds for

rescinding or terminating the sale and shall

not prevent the purchaser from acquiring title

where at the time of the commencement of

such measures or proceedings the asset sold is

situated within the territory of a Member

State or EEA State, other than in Malta.

(3) Sub-regulations (1) and (2) shall

not preclude actions for nullity, voidability or

unenforceability of legal acts detrimental to

all the creditors as referred to in regulation

10(3)(m).''.

For regulation 24 of the principal regulations, there shall

be substituted the following

'' Creditor’s right

24. (1)

The

adoption

of

to set off.

reorganisation measures or commencement of

winding up proceedings shall not affect the

rights of insurance creditors to demand the

set-off of their claims against the claims of

the Maltese insurance undertaking.

(2) Sub-regulation (1) does not

preclude actions for nullity, voidability or

unenforceability of legal acts detrimental to

all the creditors as referred to in regulation

10(3)(m).''.

For regulation 25 of the principal regulations, there shall

be substituted the following

'' Regulated

25. (1)

Without

prejudice

to

markets.

regulation 22, the effects of a reorganisation

measure or of winding-up proceedings on the

rights and obligations of the parties to a

regulated market shall be determined solely

by the law applicable to that market.

(2) Sub-regulation (1) shall not

preclude actions for nullity, voidability or

unenforceability of legal acts detrimental to

all the creditors as referred to in regulation

10(3)(m) which may be taken to set aside

payments or transactions under the law

applicable to that market.''.

Regulation 26 of the principal regulations shall be Amends

regulation 26 of

amended as follows

the principal

regulations.

(a)

in sub-regulation (1) thereof

(i) for the words ''a legal act detrimental to all

creditors provides that -'', there shall be substituted the

words ''a legal act detrimental to all creditors provides

proof that:'';

(ii) in paragraph (a) thereof, for the words ''the

law of the Member State or EEA State; and'', there shall be

substituted the words ''the law of the Member State or EEA

State, other than Malta; and'';

(iii) for paragraph (b) thereof, there shall be

substituted the following

''(b) the law of that Member State or EEA

State does not allow any means of challenging that

act in the specific case.'';

(b) in sub-regulation (2) thereof, for the words ''means

any provisions of the Companies Act relating to the voidness,

voidability or enforceability of legal acts'', there shall be

substituted the words ''means the rules relating to the nullity,

voidability or unenforceability of legal acts''.

For regulation 27 of the principal regulations there shall be Substitutes

regulation 27 of

substituted the following

the principal

regulations.

'' Protection of

27. The following law shall be

third party

applicable where, by an act concluded after

purchasers.

the adoption of a reorganisation measure or

commencement of winding-up proceedings,

the Maltese insurance undertaking concerned

disposes, for consideration, of any of the

following-

(a)

in relation to an immovable

asset, the law of the Member State or

EEA State where the immovable is

situated;

(b) in relation to a ship or an

aircraft subject to registration in a

public register, the law of the Member

State or EEA State under the authority

of which the register is kept;

(c)

in relation to transferable or

other securities whose existence or

transfer presupposes entry into a

register or account laid down by law or

which are placed in a central deposit

system governed by the law of a

Member State or EEA State, the law of

the Member State or EEA State under

the authority of which the register,

account or system is kept.''.

For regulation 29 of the principal regulations there shall be

substituted the following

'' Registration.

29. (1) In order to secure the rights

of interested third parties, an administrator or

liquidator, the relevant authorities, or any

person appointed by the relevant authorities

may request that a reorganisation measure or

the decision to commence winding-up

proceedings be registered in any relevant

public register kept in Malta and, or in other

Member States or EEA States, and shall take

all the necessary measures to ensure such

registration.

(2) The costs of registration shall be

regarded as costs and expenses incurred in the

proceedings.''.

In sub-regulation (2) of regulation 30 of the principal

regulations, for the words ''shall be construed in accordance with

article 2 of Directive 78/473/EEC, on the coordination of laws,

regulations and administrative provisions relating to Community co-

insurance.'', there shall be substituted the words ''shall be construed in

accordance with Article 190 of the Solvency II Directive.''.

For regulation 31 of the principal regulations, there shall Substitutes

regulation 31 of

be substituted the following

the principal

regulations.

'' Professional

31. All persons required to receive or

secrecy.

divulge information in connection with the

procedures of communication laid down in

regulations 4, 9, and 32 shall be bound by the

duty of professional secrecy in the same

manner as laid down in Article 64 to 69 of the

Solvency II Directive, with the exception of

any judicial authorities to which existing

national provisions apply.''.

Regulation 32 of the principal regulations shall be Amends

regulation 32 of

amended as follows

the principal

regulations.

(a)

for the marginal note thereto, there shall be

substituted the following

''Treatment of branches of third country insurance

undertakings.''; and

(b) for sub-regulations (1) and (2) thereof, there shall be

substituted the following

''(1) Where a third country insurance undertaking

authorised under the Act has a branch established in Malta,

both the relevant authorities and the competent authority,

as applicable, shall have jurisdiction to decide on

reorganisation measures and winding up proceedings in

relation to such branch of the insurance undertaking.

(2) The relevant authorities and the competent

authority shall endeavour to coordinate their actions with

foreign administrative or judicial authorities and the

foreign authority where the third country insurance

undertaking has established branches in other Member

States or EEA States.''.

Regulation 33 of the principal regulations shall be Amends

regulation 33 of

amended as follows

the principal

regulations.

(a)

in sub-regulation (1) thereof, for the words ''The

commencement of a reorganisation measure or winding-up

proceedings'', there shall be substituted the words ''The adoption

of a reorganisation measure or commencement of winding-up

proceedings'';

(b) for sub-regulation (2) thereof, there shall be

substituted the following

''(2) (a) Subject to sub-regulation (4), an

administrator or liquidator appointed in accordance with

the law of the home Member State, may exercise in Malta,

in relation to a European insurance undertaking which is

subject to a reorganisation measure or winding-up

proceedings, any function which, pursuant to that measure

or order, he is entitled to exercise within the home Member

State in relation to that European insurance undertaking.

(b) Persons to assist or represent an

administrator or liquidator referred to in paragraph (a),

may be appointed in accordance with the law of the home

Member State, in Malta, and specifically in order to help

overcome any difficulties encountered by the creditors in

Malta.'';

(c)

sub-regulation (3) thereof shall be amended as

follows

(i) for the words ''the administrator and

liquidator of the home Member State'', there shall be

substituted the words ''the administrator or liquidator of the

home Member State'';

(ii) in paragraph (b) thereof, for the words

''reorganisation measure or winding up proceedings, and

accompanied by a certified translation of that order,

decision of certificate, as the case may be.'', there shall be

substituted the words ''reorganisation measure or winding

up proceedings,'';

(iii) immediately after paragraph (b) thereof as

amended, there shall be added the following paragraph

''and accompanied by a translation in the

English language of that order, decision or

certificate.'';

(d)

in sub-regulation (4) thereof

(i) in paragraph (a) thereof, for the words ''may

not take any action'', there shall be substituted the words

''shall not take any action''; and

(ii)

in paragraph (b) thereof, for the words ''may

not rule on any dispute'', there shall be substituted the

words ''shall not rule on any legal proceedings or disputes''.

Regulations 34 and 35 of the principal regulations shall be Deletes

deleted, and regulations 36 and 37 of the principal regulations shall regulation

and 35 of the

be re-numbered as regulations 34 and 35 respectively.

principal

regulations and

re-numbers

regulations 36

and 37 of the

principal

regulations.

In regulation 34 of the principal regulations, as Amends

renumbered, for the words ''implement the provisions of Directive regulation

the principal

2001/17/EC of the European Parliament and of the Council of 19th regulations.

March, 2001 on the reorganisation and winding-up of insurance

undertakings'', there shall be substituted the words ''implement Title

IV of the Solvency II Directive''.

Immediately after regulation 35 of the principal Adds new

regulations, as renumbered, there shall be added the following new regulation

principal

regulation

regulations.

'' Savings.

36. Nothing in the Insurance Business

(Reorganisation and Winding Up of Insurance

Undertakings) (Amendment) Regulations,

2015, shall be deemed to affect anything

done, or omitted to be done prior to the

coming into force of such regulations.''.

B

€1.44