Package Travel Insolvency Fund Regulations, 2016

L.N. 315 of 2016

MALTA TRAVEL AND TOURISM SERVICES ACT

(CAP. 409)

Package Travel Insolvency Fund Regulations, 2016

IN EXERCISE of the powers conferred by article 47 of the

Malta Travel and Tourism Services Act, the Minister for Tourism, on

the recommendation of the Malta Tourism Authority, has made the

following regulations:-

The title of these regulations is the Package Travel

Insolvency Fund Regulations, 2016.

The purpose of these regulations is to set-up an Insolvency

Fund to provide security for the refund of all payments made by or on

behalf of travellers insofar as the relevant services are not performed

as a consequence of the organiser’s insolvency, including repatriation

where applicable. The fund shall be managed and administered by a

Managing Board as set-up by virtue of these regulations, and also to

partially transpose the provisions of the Directive (EU) 2015/2302 of

the European Parliament and of the Council of 25 November 2015 on

package travel and linked travel arrangements, amending Regulation

(EC) No 2006/2004 and Directive 2011/83/EU of the European

Parliament and of the Council and repealing Council Directive 90/

314/EEC.

(1)

In these regulations, unless the context otherwise

requires

" Act " means the Malta Travel and Tourism Services Act;

" Authority " means the Malta Tourism Authority;

" the Board " means the Insolvency Fund Managing Board

established under regulation 4;

" certificate " means the certificate issued to consumers in terms

of regulation 9(3);

" consumer " shall have the same meaning given to " consumer "

under the Package Travel Regulations;

" contributor " means a package travel organiser which according

to the Managing Board should contribute to the Fund;

" Directive " means Directive (EU) 2015/2302 of the European

Parliament and of the Council of 25 November 2015 on package

travel and linked travel arrangements, amending Regulation (EC) No

2006/2004 and Directive 2011/83/EU of the European Parliament and

of the Council and repealing Council Directive 90/314/EEC;

" FATTA " means the Federated Association of Travel & Tourism

Agents of Malta;

" the Fund " means the Insolvency Fund referred to under

regulation 8;

" Member State " means a member of the European Union;

" Minister " means the Minister responsible for tourism;

" Ministry " means the Ministry responsible for tourism;

" package " shall have the same meaning given to " package "

under the Package Travel Regulations;

" package travel organiser " means persons and, or entities who

fall within the definition " organiser " and, or " retailer " as given under

the Package Travel Regulations and, or fall within the definition

" travel agent " , as defined under the Act and is duly licensed by the

Authority;

" Package

Travel Regulations " means the Package Travel, S.L. 409.01

Package Holidays and Package Tours Regulations.

(2) Words and expressions used in these regulations and which

are also used in the Act, shall have, unless the context otherwise

requires, the same meaning as in the Act.

(1) The Minister shall appoint a Board, to be known as Appointment of

the Insolvency Fund Managing Board, which shall consist of five- the

Fund Managing

voting members.

Board.

(2) The five voting members of the Board shall be

(a)

two persons to be nominated by the Authority;

(b)

two persons to be nominated by the FATTA; and

(c)

one person to be nominated by the Minister.

(3) A person shall not be qualified to be appointed as, or to

remain, a member of the Board if he is a member of the House of

Representatives.

(4) The Chairman, who shall preside the said Board, shall be

appointed by the Minister in consultation with FATTA.

(5) The members of the Board shall hold office for a period of

three (3) years, and shall be eligible for re-appointment.

(6) Any member of the Board may, before the expiration of his

term of office, resign by a letter addressed to the Minister.

Provided that any member may be removed from the

Board prior to the expiration of his term of office on any of the

following grounds

(a)

the member has been guilty of misconduct;

(b) the member is unable and, or incompetent to

perform the duties of his office;

(c)

the member has acted in gross negligence;

(d) any other acts or omissions unbecoming on a

member of the Board.

The Board shall have the following functions and any

ancillary functions thereto

(a)

to set-up the Fund;

(b) to administer and manage the day-to-day affairs of

the Fund;

(c)

to decide and examine the current travel package

market and decide who shall be deemed as a contributor to the

Fund;

(d) to monitor and control that contributors are

contributing to the Fund;

(e)

to report regularly to the Authority on any matter

affecting and, or relating to the Fund and the Fund’s

contributors;

(f)

to refund and, or repatriate consumers having valid

claims in accordance with these regulations;

(g) to undertake any appropriate action in connection

with the performance of its functions through the licensing and

enforcement directorates of the Authority;

(h)

to assist and cooperate with other member states in

accordance with the Directive;

(i)

to annually publish the contributions made by all

contributors and such other information as provided for under

article 31(3) of the Act and any other applicable law;

(j)

to recommend to the Authority as to whether a

licence shall be issued or not for new applications of travel

agents, after it undertakes to carry out an assessment in

accordance with its approved terms of reference;

(k) to recommend to the Authority the renewal or

otherwise, or the suspension or revocation of travel agents’

licences and other action, as it may deem appropriate, in

accordance with its approved terms of reference;

(l)

to submit an annual report to the Authority.

(1) The Board shall ensure that the administrative costs Costs of the

in relation to carrying-out of its functions are kept to a minimum. In Board.

addition, the Authority will provide administrative support through its

offices. The Board shall authorise the reimbursement of relative

administrative costs borne by the Authority.

(2) The Board’s administrative costs shall be paid from the

Fund itself, provided that such costs transpire from a budget approved

by the Board.

(1)

The Board shall draw its own terms of reference.

Terms of

reference of the

Board.

(2) The terms of reference, and any amendments thereto, shall

be approved by the Authority and endorsed by the Minister prior to

coming into effect.

(3) The terms of reference of the Board shall be published on

the Authority’s website.

(1) The Board shall set-up a fund, which fund shall be The Fund.

used to refund payments made by or on behalf of travellers insofar as

the relevant services are not performed as a consequence of the

organiser’s insolvency, including repatriation where applicable.

(2) All package travel organisers which are duly licensed by

the Authority and which the Board deems as contributors, shall

contribute to the Fund.

(3) All contributors are to annually submit audited financial

statements to the Board.

(4) The Board and, or the Authority may request any

contributor to submit audited financial statements more frequently

than indicated in the previous sub-regulation and the Board and, or

the Authority may request any contributor to provide them with any

other documentation they may deem necessary.

(5) (a)

When a Contributor fails to contribute and sustain

the Fund when so requested by the Board, the provisions of regulation

10 shall apply.

(b) The Authority shall not renew the contributor’s

licence for the following year on such failure of the contributor to

contribute and sustain the Fund.

(c)

The Authority may also take any such other action

in accordance with the provisions of the Act and these regulations.

(6) The contributor shall pay the relative contribution, which

shall be for such an amount and is to be paid in such a manner which

the Board may decide from time to time.

(7) All contributors shall remain obliged to contribute to the

Fund until they relinquish their licence with the Authority and settle

all pending claims over the said Fund.

(8) The Fund shall at all times be kept at a minimum threshold

of five hundred thousand euro (€500,000), or any other higher amount

as shall be determined by the Ministry and the Authority from time to

time.

(9) The Board shall be entitled to request any or all

contributors to contribute further to the Fund, should the Fund be

below the minimum threshold established in the previous sub-

regulation or for any other reason whatsoever.

(10) Should the Board consider that accumulated funds are in

excess of what it considers necessary to cover consumer exposure but

not less than the minimum amount established under sub-regulation

(8), any excess amounts may be distributed back to the contributors,

subject that the approval of the Authority, on the advice of the Board,

is obtained

Provided that the funds shall be distributed in such a

manner as the Board shall deem fit.

(11) In the event that one of the contributors becomes insolvent,

any claims made by the consumers of the insolvent contributor shall

be paid first from the insolvent contributor’s share of the

contributions made under the Fund

Provided that should the insolvent contributor’s share not

suffice in order to cover all claims, then the balance shall be paid

from the net funds collected through the certification scheme

Provided further that the Board may request the other

contributors to increase their bond to cover any shortfall of funds to

settle the outstanding claims and ensure the minimum threshold is

kept and this in accordance with the provisions of sub-regulation (8).

(1) The Board, in collaboration with FATTA, shall set- Establishment

of online system

up and manage a central online system.

and issuing of

certificates.

(2) The system shall allow all contributors to issue certificates

to consumers. A fee, as determined by the Board, shall be paid in to

the Fund for every certificate issued.

(3) The certificate shall contain at least the following

information

(a)

all prepaid amount(s) made by the consumer to the

contributor;

(b)

dates of travel; and

(c)

any other details which are relevant to the package

ordered and, or purchased by the client, such as information on

the accommodation provider if applicable.

(4) All contributors are obliged to issue the certificate to their

consumers.

(5) The certificate shall be used by consumers to make any

necessary claims under the Fund should the contributor become

insolvent.

(6) The Board shall have full access to the system, and to any

information transpiring therefrom.

(1) In the event that one of the contributors becomes Claims under

insolvent, the consumer must file a claim with the Board and provide the

Fund.

full details of payments received, and services which are not

performed as a consequence of the organiser’s insolvency, including

repatriation of travellers as applicable.

(2) The consumer shall, when presenting a claim, also present

the certificate, otherwise the Board shall not be obliged to provide a

refund and, or repatriate the consumer.

(3) The Fund shall only be used for claims which relate to

bookings made as from the date of the coming into force of these

regulations.

(1) Compliance with the provisions of these regulations

by contributors shall be deemed to be a condition to which a licence

to operate any tourism operation is subject, irrespective of whether

reference to these regulations is made in the licence itself.

(2) Any contributor who fails to comply with any of the

provisions of these regulations shall be guilty of an offence, and shall

be liable to the fines and penalties as indicated in articles 43 and 45 of

the Act.

€0.63