European Passport Rights for Intermediaries Regulations, 2018

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 20,028, 20 ta’ Lulju, 2018

L.N. 238 of 2018

INSURANCE DISTRIBUTION ACT

(CAP. 487)

European Passport Rights for Intermediaries Regulations, 2018

IN EXERCISE of the powers conferred by article 3 of the

Insurance Distribution Act, the Minister responsible for the regulation

of Financial Services, after consultation with the Malta Financial

Services Authority, has made the following regulations:-

PRELIMINARY

(1) The title of these regulations is the European Passport Citation, scope

and

Rights for Intermediaries Regulations, 2018.

commencement.

(2) The purpose of these regulations is to implement Article 2

(in part), Chapter III and Article 11 of the Insurance Distribution

Directive and shall be interpreted and applied accordingly.

These regulations shall come into force on the 1 st October

(3)

2018.

(1)

In these regulations, unless the context otherwise Interpretation.

requires

"the Act" means the Insurance Distribution Act;

"branch" means an agency or branch of a Maltese

intermediary or a European intermediary which is located in the

territory of a Member State or EEA State, other than the home

Member State, and includes any permanent presence of such

intermediary in the territory of such Member State or EEA State,

even where that presence does not formally take the form of a

branch but consists merely of an office managed by the own staff

of such intermediary or by a person who is independent but has

permanent authority to act for such intermediary in the same way

as an agency would

Provided that, without prejudice to the provisions of

the Act and of Article 3 of the Insurance Distribution Directive,

if such intermediary lawfully sets up such permanent presence in

the form of a subsidiary or of another legally independent form,

it shall not be considered to be a branch for the purposes of these

regulations;

"Commission" means the Commission of the European

Community;

"competent authority" means the Malta Financial Services

Authority established by the Malta Financial Services Authority

Act;

"Conduct of Business Rules" has the same meaning as is

assigned to it by article 2 of the Act;

"EEA State" means a State which is a contracting party to

the agreement on the European Economic Area signed at Oporto

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

on the 17th March, 1993 and as amended from time to time;

"European ancillary insurance intermediary" means any

natural or legal person, other than a credit institution or an

investment firm as defined in points (1) and (2) of Article 4(1) of

Regulation (EU) No 575/2013 of the European Parliament and of

the Council of 26 June 2013 on prudential requirements for

credit institutions and investment firms and amending

Regulation (EU) No 648/2012, who, for remuneration, takes up

or pursues the activity of insurance distribution on an ancillary

basis, provided that all the conditions within the meaning of

Article 2 of the Insurance Distribution Directive are met, and

which is registered under Article 3 of the Insurance Distribution

Directive, having its head office or place of residence in a

Member State or an EEA State, other than Malta;

"European insurance intermediary" means any natural or

legal person, other than a European insurance undertaking or its

employees, and other than a European ancillary insurance

intermediary, who, for remuneration, takes up or pursues the

activity of insurance distribution within the meaning of Article 2

of the Insurance Distribution Directive and which is registered

under Article 3 of the Insurance Distribution Directive, having

its head office or place of residence in a Member State or an EEA

State, other than Malta;

"European intermediary" means a European insurance

intermediary, a European reinsurance intermediary and a

European ancillary insurance intermediary, which has been

registered in a Member State or EEA State in accordance with

Article 3 of the Insurance Distribution Directive;

"European regulatory authority" means the public body or

bodies designated by a Member State or EEA State, other than

Malta

(a) to act as a supervisory authority in relation to

the European intermediary concerned in that Member State

or EEA State within the meaning of the Insurance

Distribution Directive; or

(b) to carry out the duties provided for in the

Insurance Distribution Directive in relation to a Maltese

intermediary exercising or proposing to exercise a

European right in that Member State or EEA State;

"European reinsurance intermediary" means any natural or

legal person, other than a European reinsurance undertaking or

its employees, who, for remuneration, takes up or pursues the

activity of reinsurance distribution within the meaning of Article

2 of the Insurance Distribution Directive and which is registered

under Article 3 of the Insurance Distribution Directive, having

its head office or place of residence in a Member State or an EEA

State, other than Malta;

"European right" means the entitlement of a Maltese

intermediary and a European intermediary to establish a branch,

or provide services, in a Member State or an EEA State other

than that in which it has its head office or place of residence

(a) in accordance with the Treaty as applied in a

Member State or an EEA State; and

(b) subject to the requirements of the Insurance

Distribution Directive and subject to any regulations made

under the Act or any Insurance Distribution Rules or

Conduct of Business Rules issued by the competent

authority pursuant to the Act, implementing such

requirements;

"home Member State" means

(a) where the intermediary is a natural person, the

Member State or EEA State in which his or her residence is

situated;

(b) where the intermediary is a legal person, the

Member State or EEA State in which its registered office is

situated or, if under its national law it has no registered

office, the Member State or EEA State in which its head

office is situated;

"host Member State" means the Member State or EEA

State, other than Malta, in which a Maltese intermediary has a

permanent presence or establishment or provides services, in

exercise of a European right;

"insurance distribution" shall have the same meaning as is

assigned to it by Article 2 of the Insurance Distribution

Directive;

"Insurance Distribution Directive" means Directive (EU)

2016/97/EC of the European Parliament and of the Council of 20

January 2016 on insurance distribution, as amended from time to

time;

"Insurance Distribution Rules" has the same meaning as is

assigned to it by article 2 of the Act;

"Maltese ancillary insurance intermediary" means an

ancillary insurance intermediary, registered and enrolled in terms

of the Act, having its head office or place of residence in Malta,

who is entitled to carry on the activity of insurance distribution

on an ancillary basis in a Member State or EEA State, other than

Malta, in exercise of a European right;

"Maltese insurance intermediary" means an insurance

intermediary and a tied insurance intermediary, registered or

enrolled in terms of the Act, as the case may be, having its head

office or place of residence in Malta, who is entitled to carry on

the activity of insurance distribution in a Member State or EEA

State, other than Malta, in exercise of a European right;

"Maltese intermediary" means a Maltese insurance

intermediary, a Maltese reinsurance intermediary and a Maltese

ancillary insurance intermediary, which has been registered or

enrolled in Malta in terms of the Act, as the case may be;

"Maltese reinsurance intermediary" means a reinsurance

intermediary registered or enrolled in terms of the Act, as the

case may be, having its head office or place of residence in

Malta, who is entitled to carry on the activity of reinsurance

distribution in a Member State or EEA State, other than Malta, in

exercise of a European right;

"Maltese rules" means rules

(a) made in accordance

with

the

Insurance

Distribution Directive; and

(b) which are the responsibility of the competent

authority (as to implementation, enforcement and

compliance) and subject to the provisions of the Act and

any regulations, Insurance Distribution Rules and Conduct

of Business Rules made thereunder;

"Member State" means a Member State of the European

Union;

"reinsurance distribution" shall have the same meaning as

is assigned to it by Article 2 of the Insurance Distribution

Directive;

"Treaty" means Treaty of Rome signed in 1957,

establishing the European Economic Community and as

subsequently amended;

"Tribunal" has the same meaning as is assigned to it by

article 2 of the Act.

(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 assigned to them in the Act.

PART I

EXERCISE OF PASSPORT RIGHTS BY EUROPEAN

INTERMEDIARIES

(1) A European intermediary which is seeking to Exercise of

establish a branch in Malta in exercise of a European right shall satisfy passport

by European

the establishment conditions specified in sub-regulation (2) and shall intermediaries

establishment.

be exempt from the Act in accordance with the provisions of articles 6,

33 and 43A of the said Act, as applicable.

(2) The establishment conditions for the purposes of this

regulation are that

(a) the European intermediary has given to its European

regulatory authority a notice of intention to establish a branch in

Malta, containing the requisite details in terms of Article 6 of the

Insurance Distribution Directive;

(b) the competent authority has received from the

European regulatory authority of such European intermediary a

consent notice stating that it has given its consent to the

intermediary to establish a branch in Malta;

(c)

the consent notice shall include

(i) the name, address and, where applicable, the

registration number of the European intermediary;

(ii) the category of intermediary and, where

applicable, the name of any authorised insurance

undertaking, authorised reinsurance undertaking, European

insurance

undertaking

or

European

reinsurance

undertaking, represented;

(iii) the relevant classes of insurance, if applicable;

(iv) the address in Malta from where documents

may be obtained and to which they may be delivered;

(v) the name of any person responsible for the

management of the branch; and

(vi) such other information as may be specified by

means of Insurance Distribution Rules;

(d) the European regulatory authority has informed the

European intermediary, in writing, that the consent notice has

been sent to the competent authority; and

(e) details of any insurance guarantee scheme, if

applicable, which is intended to protect the branch’s

policyholders.

(3) The competent authority shall immediately acknowledge

receipt of the notice received pursuant to sub-regulation (2).

(4) Before a European intermediary commences its distribution

activities in Malta, the competent authority shall, within one month of

receiving the information referred to in sub-regulation (2), inform the

European regulatory authority concerned, through the means referred

to in Article 11 of the Insurance Distribution Directive, of the

applicable provisions under which, in the interest of the general good,

the distribution activities shall be carried out in Malta.

(5) The European intermediary may establish the branch and

commence distribution activities in Malta as from the date upon which

it is informed by its European regulatory authority, of the applicable

provisions, provided that it complies with the said applicable

provisions, or, if no applicable provisions are notified to the European

regulatory authority, on the expiry of the period referred to in sub-

regulation (4).

(6) In the event of a change in any of the particulars

communicated in accordance with sub-regulation (2)(c), the competent

authority shall be informed of such changes by the European

regulatory authority concerned, as soon as is practicable and no later

than one month from the date upon which such European regulatory

authority is notified of the changes by the European intermediary.

(7) A European intermediary may, in exercise of a European

right, only market in Malta insurance and reinsurance products of the

European insurance or reinsurance undertaking which the European

intermediary represents through a branch in Malta, if the European

insurance undertaking or European reinsurance undertaking has

exercised its European right in Malta in terms of the European

Passport Rights for Insurance and Reinsurance Undertakings

Regulations, to carry on business of insurance in the class or classes of

long term business or class or classes or part classes of general

business through the establishment of a branch.

(8) For the purpose of this regulation, "applicable provisions"

means the Maltese rules with which, in the interest of the general

good, the European intermediary is required to comply when carrying

out distribution activities, as identified in the consent notice, through a

branch in Malta.

(1) The competent authority shall assume responsibility Enforcement of

for ensuring that in carrying out distribution activities in Malta, the certain

obligations by

branch of a European intermediary complies with the obligations set the

authority.

out in the Conduct of Business Rules, as applicable, and with measures

adopted pursuant thereto by the competent authority.

(2) The competent authority shall have the right to examine the

arrangements of the branch of the European intermediary, and to

request any changes which are necessary to enable it to enforce the

obligations set out in Conduct of Business Rules, as applicable, and

measures adopted pursuant thereto by the competent authority with

respect to the services or distribution activities provided by the branch

of the European intermediary in Malta.

(1) Where the primary place of business of a European Enhanced

intermediary is located in Malta and Malta is not the home Member supervision

European

State, the competent authority may enter into an agreement with the intermediaries

by the

European regulatory authority of the European intermediary competent

concerned, in order for the competent authority to be able to exercise authority.

relevant functions in relation to such European intermediary as if it

were the home Member State.

(2) The competent authority may exercise relevant functions in

relation to the European intermediary concerned, in accordance with

the agreement referred to in sub-regulation (1), as if the European

intermediary was a person enrolled under the Act.

(3)

An agreement made under sub-regulation (1)

(a) shall provide for the relevant functions which the

competent authority may exercise in relation to the European

intermediary concerned; and

(b) may provide for the relevant functions which may be

exercised by the competent authority in collaboration with the

European regulatory authority of the European intermediary

concerned.

(4) Where an agreement is reached pursuant to sub-regulation

(1), the competent authority shall notify, without delay, the European

intermediary concerned and EIOPA.

(5)

For the purpose of this regulation

(a) "relevant functions" means any functions that may be

exercised by the competent authority in relation to persons

enrolled under the Act in relation to the requirements of

regulations, Insurance Distribution Rules and Conduct of

Business Rules issued under the Act, as applicable; and

(b) "primary place of business" means the location from

where the main business of the European intermediary is

managed.

(1) Where a European intermediary carries out insurance

distribution activities or reinsurance distribution activities through a

branch in Malta, in exercise of a European right, its European

regulatory authority may, after having first informed the competent

authority, carry out itself or through a person it appoints for that

purpose, on-site inspections in relation to the distribution activities

carried out by the branch of the European intermediary. The competent

authority may participate in that inspection.

(2) This regulation shall not affect the right of the competent

authority, in discharging its responsibilities under the Insurance

Distribution Directive, to carry out on-site inspections of branches

established in Malta.

(1) A European intermediary which is seeking to provide

services in Malta in exercise of a European right shall satisfy the

service conditions specified in sub-regulation (2) and shall be exempt

from the Act in accordance with the provisions of articles 6, 33 and

43A of the said Act, as applicable.

(2)

The service conditions for the purposes of this regulation

(a) the European intermediary has given its European

regulatory authority a notice of intention to provide services in

Malta, containing the requisite details in terms of Article 4 of the

Insurance Distribution Directive;

(b) the competent authority has received from the

European regulatory authority of such European intermediary a

consent notice stating that it has given its consent to the

intermediary to provide services in Malta;

(c)

the consent notice shall include

(i) the name, address and, where applicable, the

registration number of the European intermediary;

(ii) the category of intermediary and, where

applicable the name of any authorised insurance

undertaking authorised reinsurance undertaking, European

insurance

undertaking

or

European

reinsurance

undertaking, represented;

(iii) the relevant classes of insurance, if applicable;

and

(iv) such other information as may be specified by

means of Insurance Distribution Rules;

(d) the European regulatory authority has informed the

European intermediary, in writing, that the notice of intention

has been sent to the competent authority; and

(e) details of any insurance guarantee scheme, if

applicable, which is intended to protect policyholders.

(3) The competent authority shall immediately acknowledge

receipt of the notice received pursuant to sub-regulation (2).

(4) In terms of Article 4(2) of the Insurance Distribution

Directive, the European intermediary concerned is notified by its

European regulatory authority that the applicable provisions are

available through the means referred to in Article 11 (3) and (4) of the

Insurance Distribution Directive.

(5) Upon receipt of the information referred to in sub-

regulation (2) by the competent authority, the European intermediary

may commence to carry out distribution activities in Malta, provided

that such intermediary complies with the applicable provisions

referred to in sub-regulation (4).

(6) In the event of a change in any of the particulars

communicated in accordance with sub-regulation (2)(c), the competent

authority shall be informed of such changes by the European

regulatory authority concerned, as soon as is practicable and no later

than one month from the date upon which such European regulatory

authority is notified of the changes by the European intermediary.

(7) A European intermediary may, in exercise of a European

right, only market in Malta insurance and reinsurance products of the

European insurance or reinsurance undertaking which the European

intermediary represents when providing services in Malta, if the

European insurance undertaking or European reinsurance undertaking

has exercised its European right in terms of the European Passport

Rights for Insurance and Reinsurance Undertakings Regulations to

carry on business of insurance in the class or classes of long term

business or class or classes or part classes of general business by way

of freedom of establishment or freedom to provide services.

(8) For the purpose of this regulation, "applicable provisions"

means the Maltese rules with which, in the interest of the general

good, the European intermediary is required to comply when carrying

out distribution activities, as identified in the consent notice, when

providing services in Malta.

PART II

EXERCISE OF PASSPORT RIGHTS BY MALTESE

INTERMEDIARIES

(1) A Maltese intermediary may exercise a European

right to establish a branch if it satisfies the requirements set out in the

following provisions of this regulation.

(2) Pursuant to article 11(4) of the Act, a Maltese intermediary

intending to establish a branch in exercise of a European right shall

give the competent authority a notice of intention which shall contain

(a) the Member State or EEA State within the territory of

which the Maltese intermediary proposes to establish a branch;

(b) a scheme of operations setting out, inter alia, the

distribution activities it intends to carry out and the structural

organisation of the branch;

(c)

the relevant classes of insurance, if applicable;

(d) the address of the proposed branch from where

documents may be obtained and to which they may be delivered;

(e) the name of the branch’s general representative who

must possess sufficient powers to bind the Maltese intermediary

in relation to third parties and to represent it in relations with the

authorities and courts of the host Member State; and

(f) such other information as may be specified by means

of Insurance Distribution Rules.

(3) Without prejudice to sub-regulations (5) and (8), the

competent authority shall give a consent notice within the meaning of

sub-regulation (4) to the European regulatory authority, within one

month of receiving a complete notice of intention.

(4)

The consent notice shall

(a) be given in accordance with Chapter III of the

Insurance Distribution Directive;

(b) confirm that the Maltese intermediary is enrolled to

carry out the distribution activities which the branch proposes to

carry out;

(c) contain the information stated in the notice of

intention of the Maltese intermediary; and

(d) include such other information as may be specified by

means of Insurance Distribution Rules.

(5) Unless the competent authority has reason to doubt the

adequacy of the organisational structure or the financial situation of

the Maltese intermediary, taking into account the distribution activities

planned, it shall, within one month of receiving all the information

referred to in sub-regulation (2), communicate that information to the

European regulatory authority of the branch, and shall inform the

Maltese intermediary concerned accordingly.

(6) The competent authority shall inform the Maltese

intermediary of the applicable provisions, as communicated by the

European regulatory authority of the host Member State through the

means referred to in Article 11 of the Insurance Distribution Directive,

under which, in the interest of the general good, the distribution

activities shall be carried out in that Member State or EEA State.

(7) A Maltese intermediary may establish the branch and

commence to carry out distribution activities in the host Member State

(a) upon receiving the communication referred to in sub-

regulation (6), provided that it complies with the said applicable

provisions; or

(b) where no applicable provisions are communicated by

the European regulatory authority of the host Member State

through the means referred to in Article 11 of the Insurance

Distribution Directive, within one month from the

communication of the consent notice in terms of sub-regulation

(3).

(8) Where the competent authority refuses to communicate the

information referred to in sub-regulation (2) to the European

regulatory authority of the host Member State, it shall give the reasons

for its refusal to the Maltese intermediary concerned within one month

of receiving all the information in question. The refusal or failure to

act in the period stipulated shall be subject to a right of appeal to the

Tribunal and the provisions of article 50 of the Act shall apply mutatis

mutandis.

(9) In the event of a change in any of the particulars

communicated in accordance with sub-regulation (2), the Maltese

intermediary shall give written notice of the changes to the competent

authority, at least one month before implementing the changes. The

competent authority shall as soon as is practicable and not later than

one month of such notification, inform the European regulatory

authority of the host Member State, of such changes.

(10) For the purposes of this regulation, "applicable provisions"

means the host Member State rules with which the Maltese

intermediary is required to comply when carrying out distribution

activities through the proposed branch in the host Member State

concerned.

(1) Where the primary place of business of a Maltese

intermediary is located in a Member State or EEA State, other than

Malta, the competent authority may enter into an agreement with the

European regulatory authority of the host Member State, in order for

the said European regulatory authority to be able to exercise relevant

functions in relation to such Maltese intermediary as if it were the

home Member State.

(2)

The relevant functions in relation to the Maltese

intermediary concerned, may be exercised by the European regulatory

authority in accordance with the agreement referred to in sub-

regulation (1), as if that European regulatory authority was the

supervisory authority of the home Member State.

(3)

For the purpose of this regulation

(a) "relevant functions" means any functions that may be

exercised by the European regulatory authority of the host

Member State in relation to an intermediary for which that

European regulatory authority is the home Member State

supervisory authority, in relation to the requirements laid down

in Chapters IV to VII of the Insurance Distribution Directive, as

applicable; and

(b) "primary place of business" means the location from

where the main business of the Maltese intermediary is managed.

Where a Maltese intermediary carries out insurance On-site

distribution or reinsurance distribution activities through a branch in a inspections

the competent

Member State or EEA State, other than Malta, in exercise of a authority.

European right, the competent authority may, after having first

informed the European regulatory authority of the host Member State,

carry out itself or through a person it appoints for that purpose, on-site

inspections in relation to the distribution activities carried out by the

branch of the Maltese intermediary.

(1) A Maltese intermediary which intends to provide Exercise of

services for the first time in one or more Member States or EEA States passport

by Maltese

in exercise of a European right shall first submit a notice of intention intermediaries

services.

to the competent authority indicating

(a)

the Member State or EEA State in which it intends to

operate;

(b)

the relevant classes of insurance, if applicable; and

(c) such other information as may be specified in

Insurance Distribution Rules.

(2) The competent authority shall, within one month of

receiving the notice of intention, communicate a consent notice to the

European regulatory authority of the host Member State, containing

the information specified by the Maltese intermediary in accordance

with sub-regulation (1).

(3) The competent authority shall inform the Maltese

intermediary, in the written notice referred to in sub-regulation (4), of

the applicable provisions, available through the means referred to in

Article 11(3) and (4) of the Insurance Distribution Directive, under

which, in the interest of general good, the distribution activities shall

be carried out in the host Member State.

(4) Upon receipt of the consent notice by the European

regulatory authority of the host Member State, the competent authority

shall give written notice to the Maltese intermediary concerned and

such intermediary may commence to carry out the relevant distribution

activities in the host Member State, provided that it complies with the

applicable provisions referred to in sub-regulation (3).

(5) Where the competent authority refuses to communicate the

information referred to in sub-regulation (1), to the European

regulatory authority of the provision of services, it shall, give the

reasons for its refusal to the Maltese intermediary concerned within

one month of receiving all the information in question. The refusal or

failure to act in the period stipulated shall be subject to a right of

appeal to the Tribunal and the provisions of article 50 of the Act shall

apply mutatis mutandis.

(6) In the event of a change in any of the particulars

communicated in accordance with sub-regulation (1), the Maltese

intermediary shall give written notice of the changes to the competent

authority, at least one month before implementing the changes. The

competent authority shall as soon as is practicable and not later than

one month from such notification, inform the European regulatory

authority of such changes.

(7) For the purposes of this regulation, "applicable provisions"

means the host Member State rules with which the Maltese

intermediary is required to comply when carrying out distribution

activities, as identified in the consent notice, when providing services

in the host Member State.

PART III

EUROPEAN INTERMEDIARIES NOT COMPLYING WITH

LEGAL PROVISIONS

(1) Where the competent authority ascertains that a

European intermediary which has established a branch in Malta has

contravened any legal or regulatory provisions as set out in Conduct of

Business Rules, the competent authority may take any appropriate

measures as it deems fit.

(2) Where the competent authority has reason to consider that a

European intermediary which is carrying out distribution activities

through a branch in Malta, has contravened any obligation arising

from the provisions of the Act or of any regulations, Insurance

Distribution Rules or Conduct of Business Rules issued thereunder,

transposing any obligation set out in the Insurance Distribution

Directive, and where the competent authority does not have the

responsibility in accordance with regulation 5, the competent authority

shall refer its findings to the European regulatory authority of such

European intermediary. The European regulatory authority shall,

where applicable and at the earliest opportunity, take all appropriate

measures to remedy the situation and ensure that the European

intermediary concerned rectifies its position. The appropriate

measures taken shall be communicated to the competent authority.

(3) Where, despite the measures taken by the European

regulatory authority or because those measures prove inadequate or

insufficient, the European intermediary persists in violating the legal

or regulatory provisions referred to in sub-regulation (2) in force in

Malta, and in acting in a manner that is clearly detrimental to the

interests of insureds and policyholders, in Malta, on a large scale, or to

the orderly functioning of insurance and reinsurance markets, the

competent authority may, after informing the European regulatory

authority concerned, take appropriate measures to prevent or penalise

further irregularities, including, in so far as is strictly necessary, to

prevent that European intermediary concerned from continuing to

carry out distribution activities in Malta and, or new distribution

activities in Malta. In addition, the competent authority may refer the

matter to EIOPA and request its assistance in accordance with Article

19 of Regulation (EU) No 1094/2010.

(4) Notwithstanding sub-regulations (2) and (3), the competent

authority may take appropriate and non-discriminatory measures to

prevent or penalise irregularities committed in Malta, in the cases

where immediate action is strictly necessary to protect the interests of

insureds and policyholders, in Malta, where equivalent measures of the

European regulatory authority are inadequate or insufficient. In such

cases, the competent authority may also prevent that European

intermediary concerned from continuing to carry out distribution

activities in Malta and, or new distribution activities in Malta.

(5) Any measures adopted by the competent authority pursuant

to this regulation shall be communicated to the European intermediary

concerned in writing, together with reasons justifying such measures.

The competent authority shall inform the European regulatory

authority concerned, EIOPA and the Commission of such measures,

without undue delay.

(6)

Where a European insurance intermediary which is in

breach of any provisions of these regulations has an establishment or

possesses property of any description in Malta, the competent

authority may, in accordance with national law, impose an

administrative penalty pursuant to article 52 of the Act.

(7) Where the competent authority is informed by the

European regulatory authority of the removal from the register of the

registration of a European intermediary carrying out activities of

insurance distribution or reinsurance distribution in Malta, in exercise

of a European right, it shall take appropriate measures to prevent the

intermediary concerned from continuing to carry out insurance

distribution or reinsurance distribution in Malta, under either the right

of establishment or the freedom to provide services, and may make or

issue public statements or notices in relation to these measures.

(8)

A prohibition under this regulation may be

(a)

absolute; or

(b) limited, that is, imposed for a specified event or until

specified conditions are complied with,

and any period, event or conditions specified in the case of a limited

prohibition may be varied by the competent authority and any such

notice shall take effect on such date as is specified in the notice.

(1) Where the competent authority has reason to consider

that a European intermediary which provides services in Malta has

contravened any obligation arising from the provisions of the Act, or

of any regulations, Insurance Distribution Rules or Conduct of

Business Rules issued thereunder, transposing any obligation set out in

the Insurance Distribution Directive, it shall communicate its

considerations to the European regulatory authority concerned. The

European regulatory authority shall, where applicable and at the

earliest opportunity, take all appropriate measures to remedy the

situation and ensure that the European intermediary concerned

rectifies its position. The appropriate measures taken shall be

communicated to the competent authority.

(2) Where, despite the measures taken by the European

regulatory authority, or because those measures prove inadequate or

insufficient, the European intermediary persists in violating the legal

or regulatory provisions referred to in sub-regulation (1) in force in

Malta, and in acting in a manner that is clearly detrimental to the

interests of insureds and policyholders, in Malta, on a large scale, or to

the orderly functioning of insurance and reinsurance markets, the

competent authority may, after informing the European regulatory

authority concerned, take appropriate measures to prevent or penalise

further irregularities, including, in so far as is strictly necessary, to

prevent that European intermediary concerned from continuing to

carry out distribution activities in Malta and, or new distribution

activities in Malta. In addition, the competent authority may refer the

matter to EIOPA and request its assistance in accordance with Article

19 of Regulation (EU) 1094/2010.

(3) Notwithstanding sub-regulations (1) and (2), the competent

authority may take appropriate measures to prevent or penalise

irregularities committed in Malta, in the cases where immediate action

is necessary to protect the interests of insureds and policyholders. In

such cases, the competent authority may prevent that European

intermediary concerned from continuing to carry out distribution

activities in Malta and, or new distribution activities in Malta.

(4) Any measures adopted by the competent authority pursuant

to this regulation shall be communicated to the European intermediary

concerned in writing, together with reasons justifying such measures.

The competent authority shall inform the European regulatory

authority concerned, EIOPA and the Commission of such measures,

without undue delay.

(1) The competent authority may take appropriate and Powers of the

non-discriminatory measures, in so far as strictly necessary, to prevent competent

authority in

or penalise irregularities committed in Malta by a European relation

applicable

intermediary, which are contrary to applicable provisions protecting provisions.

the general good. In such situations, the competent authority may

prevent that European intermediary from continuing to carry out

distribution activities in Malta and, or new distribution activities in

Malta.

(2) For the purposes of sub-regulation (1), "applicable

provisions" means the Maltese rules with which, in the interest of the

general good, the European intermediary is required to comply when

carrying out distribution activities, as identified in the consent notice,

through a branch in Malta or when providing services in Malta.

(3) The competent authority may take appropriate measures to

prevent a European insurance intermediary or a European ancillary

insurance intermediary from carrying out distribution activities within

Malta, under the freedom to provide services or, where applicable, the

freedom of establishment, where

(a) the relevant activities are entirely or principally

directed towards Malta with the sole purpose of avoiding the

legal provisions which would be applicable if that European

insurance intermediary or European ancillary insurance

intermediary, had its residence or registered office in Malta; and

(b) where its activities seriously endanger the proper

functioning of Maltese insurance and reinsurance markets with

respect to the interests of insureds and policyholders.

(4) In the case referred to in sub-regulation (3), the competent

authority may, after informing the European regulatory authority

concerned, take in respect of that European insurance intermediary or

European ancillary insurance intermediary, all the appropriate

measures needed in order to protect the interests of insureds and

policyholders, in Malta. In addition, the competent authority may refer

the matter to EIOPA and request its assistance in accordance with

Article 19 of Regulation (EU) No 1094/2010, and in such a case,

EIOPA may act in the event of a disagreement between the competent

authority and the European regulatory concerned.

PART IV

MALTESE INTERMEDIARIES NOT COMPLYING WITH

LEGAL PROVISIONS

(1) Where, pursuant to Article 8(2) of the Insurance

Distribution Directive, a European regulatory authority of a host

Member State communicates to the competent authority its findings

relating to a branch of a Maltese intermediary carrying out distribution

activities in the host Member State, which is considered by it to be in

breach of any obligation set out in the Insurance Distribution

Directive, the competent authority shall assess the information

received and, where applicable and at the earliest opportunity, take

appropriate measures to remedy the situation and ensure that the

Maltese intermediary concerned rectifies its position. The competent

authority shall inform that European regulatory authority of any such

measures taken.

(2) Where the European regulatory authority of the host

Member State, after informing the competent authority, takes

appropriate measures, pursuant to Article 8(3) of the Insurance

Distribution Directive, to prevent further irregularities, the competent

authority may refer the matter to EIOPA and request its assistance in

accordance with Article 19 of Regulation (EU) No. 1094/2010.

(1) Where, pursuant to Article 5(1) of the Insurance Contravention

Distribution Directive, a European regulatory authority of a host by

insurance

Member State communicates to the competent authority its findings intermediaries

services.

relating to a Maltese intermediary providing services in the host

Member State, which is considered to be in breach of any obligation

set out in the Insurance Distribution Directive, the competent authority

shall assess the information received and, where applicable and at the

earliest opportunity, take appropriate measures to remedy the situation

and ensure that the Maltese intermediary concerned rectifies its

position. The competent authority shall inform that European

regulatory authority of any such measures taken.

(2) Where the European regulatory authority of the host

Member State, after informing the competent authority, takes

appropriate measures, pursuant to Article 5(1) of the Insurance

Distribution Directive, to prevent further irregularities, the competent

authority may refer the matter to EIOPA and request its assistance in

accordance with Article 19 of Regulation (EU) No 1094/2010.

In the case of a Maltese insurance intermediary and a Powers of the

Maltese ancillary insurance intermediary, where the competent competent

authority to

authority is informed by the European regulatory authority of the host refer

– in relation to

Member State where the branch of a Maltese intermediary is applicable

established, or where the Maltese intermediary is providing services, provisions.

of the appropriate measures to be taken in relation to such

intermediary, pursuant to Article 9 of the Insurance Distribution

Directive, in order to protect the rights of consumers in that host

Member State or EEA State, the competent authority may refer the

matter to EIOPA and request its assistance in accordance with Article

19 of Regulation (EU) No 1094/2010, and in such a case, EIOPA may

act in the event of a disagreement between the competent authority and

the European regulatory concerned.

PART V

MISCELLANEOUS

(1) The Lists established and maintained by the Register.

competent authority in terms of articles 9, 36 and 43D of the Act shall

indicate each Member State or EEA State in which the Maltese

intermediary

(a)

has established a branch; or

(b)

is providing services.

(2) The competent authority shall communicate the

information referred to in sub-regulation (1) to EIOPA for the purpose

of publication on EIOPA’s single electronic register, in terms of Article

3(4) of the Insurance Distribution Directive.

The competent authority shall cooperate and exchange

information with European regulatory authorities of host Member

States, for the purposes of supervision of the distribution activities of

Maltese intermediaries and European intermediaries. In particular,

where the competent authority strikes off the name of a Maltese

intermediary which ceases to fulfil the requirements laid down in

Article 10 of the Insurance Distribution Directive, from the relevant

Register or List, it shall, where applicable, inform the host Member

State accordingly.

Where a person falling within the scope of these

regulations, fails to comply with any provisions of the said regulations

or of any Insurance Distribution Rules and, or Conduct of Business

Rules issued thereunder, the competent authority may, by notice in

writing and without recourse to any court hearing, impose on such

person an administrative penalty or any administrative measure in

accordance with the Insurance Distribution (Penalties and other

2018. Measures) Regulations, 2018.

(1) For the better carrying out of these regulations, the

competent authority may, from time to time, issue Insurance

Distribution Rules and, or Conduct of Business Rules.

(2) Such Insurance Distribution Rules and, or Conduct of

Business Rules may contain such incidental, supplementary and

consequential provisions as appear to the competent authority to be

expedient for the purposes of these regulations.

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