financing transactions and of reuse) (Amendment) Regulations,

Suppliment tal-Gazzetta tal-Gvern ta’ Malta, Nru. 20,397, 30 ta’ April, 2020

L.N. 166 of 2020

MALTA FINANCIAL SERVICES AUTHORITY ACT

(CAP. 330)

Malta Financial Services Authority Act (Transparency of securities

financing transactions and of reuse) (Amendment) Regulations,

IN EXERCISE of the powers conferred by article 20E the Malta

Financial Services Authority Act, the Minister responsible for the

regulation of financial services, acting on the advice of the Malta

Financial Services Authority, has made the following regulations

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

Services Authority Act (Transparency of securities financing scope.

transactions and of reuse) (Amendment) Regulations, 2020 and these

regulations shall be read and construed as one with the Malta Financial

Services Authority Act (Transparency of securities financing

transactions and of reuse), hereinafter referred to as the " principal

regulations " .

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

relevant provisions of the SFTR.

Immediately after regulation 4 of the principal regulations, Addition of new

regulations to

there shall be added the following new regulations

the principal

regulations.

" Administrative

(1) Without prejudice to the powers of the

penalties and

competent authority under the Act or any other law, the

other

competent authority shall have the power to impose

administrative

measures.

administrative penalties and other administrative

measures for breaches of Article 4 and Articles 13 to 15

of the SFTR.

(2) Without prejudice to the generality of sub-

regulation (1), the competent authority shall have the

power to impose the following administrative penalties

and other administrative measures for breaches of

Articles 4 and 15 of the SFTR

(a) an order requiring the person

responsible for the breach to cease the conduct and

to desist from a repetition of that conduct;

(b) a public statement which indicates the

person responsible and the nature of the breach in

accordance with Article 26 of SFTR;

(c) withdrawal or suspension of the

authorisation;

(d) a temporary ban against any person

discharging managerial responsibilities, or any

natural person who is held responsible for such a

breach, from exercising management functions;

(e) maximum administrative penalties of

three times the amount of the profits gained or

losses avoided because of the breach where the

said profits or losses can be determined by the

competent authority, even if those penalties exceed

the amounts referred to in paragraphs (f) and (g);

(f) in respect of a natural person, a

maximum administrative penalties of five million

euro (€5,000,000);

(g) in respect of legal persons, maximum

administrative penalties of

(i) five million euro (€5,000,000) or up to

ten per cent (10%) of the total annual turnover of

the legal person according to the last available

accounts approved by the management body for

breaches of Article 4 of the SFTR;

(ii) fifteen million euro (€15,000,000) or

up to ten per cent (10%) of the total annual

turnover of the legal person according to the last

available accounts approved by the management

body for breaches of Article 15 of the SFTR;

Provided that for the purpose of paragraph

(g)(i) and (ii), where the legal person is a parent

undertaking or a subsidiary of the parent undertaking

which has to prepare consolidated financial accounts in

accordance with Directive 2013/34/EU, the relevant

total annual turnover shall be the total annual turnover

or the corresponding type of income according to the

relevant accounting regime according to the last

available consolidated accounts approved by the

management body of the ultimate parent undertaking.

(3) Without prejudice to the generality of sub-

regulation (1), the competent authority shall have the

power to impose an administrative penalty which may

not exceed one hundred and fifty thousand euro

(€150,000) for each breach of Articles 13 and 14 of the

SFTR.

(4) Where the provisions of Article 4 and

Articles 13 to 15 of the SFTR apply to a legal person,

the competent authority may impose administrative

penalties and other administrative measures on members

of the management body of such legal person and to

other individuals who are responsible for the breach of

the said provisions.

(5) The administrative penalties and other

administrative measures taken by the competent

authority shall be effective, proportionate and

dissuasive.

(6) When determining the type and level of

administrative penalties and other administrative

measures, the competent authority shall take into

account all relevant circumstances, including, where

appropriate

(a) the gravity and duration of the breach;

(b) the degree of responsibility of the

person responsible for the breach;

(c) the financial strength of the person

responsible for the breach, by considering factors

such as the total turnover in the case of a legal

person or the annual income in the case of a

natural person;

(d) the importance of the profits gained or

losses avoided by the person responsible for the

breach, insofar as they can be determined;

(e) the level of cooperation of the person

responsible for the breach with the competent

authority, without prejudice to the need to ensure

disgorgement of profits gained or losses avoided

by that person;

(f) previous breaches by the person

responsible for the breach;

(g) any additional factors which the

competent authority deems relevant.

(1) The competent authority shall publish

any decision imposing an administrative penalty or

other administrative measure in relation to breaches of

Article 4 and Articles 13 to 15 of SFTR on its website

immediately after the person subject to that decision has

been informed of that decision.

(2) The information published pursuant to sub-

regulation (1) shall specify the type and nature of the

breach, the identity of the person subject to the decision

and any other information which the competent

authority deems relevant.

(3) The provisions of sub-regulations (1) and (2)

shall not apply to decisions of the competent authority

imposing measures that are of an investigatory nature.

(4) Where the competent authority considers,

following a case-by-case assessment, that the

publication of the identity of the legal person subject to

the decision, or the personal data of a natural person,

would be disproportionate, or where such publication

would jeopardise an ongoing investigation or the

stability of the financial markets, the competent

authority shall

(a) defer publication of the decision until

the reasons for that deferral cease to exist; or

(b) publish the decision on an anonymous

basis where such publication ensures effective

protection of the personal data concerned and,

where appropriate, postpone publication of the

relevant data for a reasonable period of time where

it is foreseeable that the reasons for anonymous

publication will cease to exist during that period;

or

(c) not publish the decision in the event

that the competent authority is of the opinion that

publication in accordance with paragraphs (a) or

(b) will be insufficient to ensure

(i) that the stability of financial

markets is not jeopardised; or

(ii) the proportionality of the

publication of such decisions with regard to

measures which are deemed to be of a minor

nature.

(5) Where the decision is subject to an appeal

before a national judicial, administrative or other

authority, the competent authority shall also publish

immediately on its website such information and any

subsequent information on the outcome of such an

appeal. Any decision annulling a decision subject to

appeal shall also be published.

(6) Any decision that is published in accordance

with this regulation shall remain accessible on the

website of the competent authority for a period of at

least five (5) years after its publication

Provided that personal data contained in any

such decision shall be retained on the website of the

competent authority for the period which is necessary, in

accordance with the applicable data protection

legislation.

A right of appeal to the Financial Services

Tribunal shall lie from the decisions which the

competent authority shall take under these regulations

and the provisions of article 21 of the Act shall apply

mutatis mutandis. ".

€0.27