Cooperation) Regulations, 2022

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 20,878, 17 ta’ Ġunju, 2022 B 919

L.N. 176 of 2022

MALTA FINANCIAL SERVICES AUTHORITY ACT

(CAP. 330)

Malta Financial Services Authority Act (Consumer Protection

Cooperation) Regulations, 2022

IN EXERCISE of the powers conferred by article 20A(1) of 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 (Consumer Protection Cooperation) scope.

Regulations, 2022.

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

3(1), 3(5), 5 (in part), 9 (in part) and 10 (in part) of the CPC

Regulation as herein defined and these regulations shall be interpreted

and applied accordingly.

(1) In these regulations, unless the context otherwise Interpretation.

requires

"Act" means the Malta Financial Services Authority Act;

''Authority'' shall have the same meaning assigned to it in the

Act;

"consumer" shall have the same meaning assigned to it in the

CPC Regulation;

"CPC Regulation" means Regulation (EU) 2017/2394 of the

European Parliament and of the Council of 12 December 2017 on

cooperation between national authorities responsible for the

enforcement of consumer protection laws and repealing Regulation

(EC) No 2006/2004, as may be amended from time to time, and

includes any binding legal instruments, guidelines and other measures

that have been or may be issued thereunder;

"harm to collective interests of consumers" shall have the same

meaning assigned to it in the CPC Regulation;

"infringements covered by the CPC Regulation" means intra-

Union infringements, widespread infringements and widespread

infringements with a Union dimension;

"intra-Union infringement" shall have the same meaning

assigned to it in the CPC Regulation;

"online interface" shall have the same meaning assigned to it in

the CPC Regulation;

"trader" shall have the same meaning assigned to it in the CPC

Regulation;

"Union laws that protect consumers’ interests" means

(i) Directive 2002/65/EC of the European Parliament and of

the Council of 23 September 2002 concerning the distance marketing

of consumer financial services and amending Council Directive 90/

619/EEC and Directives 97/7/EC and 98/27/EC, as may be amended

from time to time, and as transposed in national law;

(ii) Articles 15, 18 and 22 of Directive 2014/17/EU of the

European Parliament and of the Council of 4 February 2014 on credit

agreements for consumers relating to residential immovable property

and amending Directives 2008/48/EC and 2013/36/EU and Regulation

(EU) No 1093/2010, as may be amended from time to time, and as

transposed in national law; and

(iii) Articles 3 to 18 and Article 20(2) of Directive 2014/92/EU

of the European Parliament and of the Council of 23 July 2014 on the

comparability of fees related to payment accounts, payment account

switching and access to payment accounts with basic features, as may

be amended from time to time, and as transposed in national law;

"widespread infringement" shall have the same meaning as that

assigned to it in the CPC Regulation;

"widespread infringement with a Union dimension" shall have

the same meaning as that assigned to it in the CPC Regulation;

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

also used in the CPC Regulation, but which are not defined herein,

shall have the same meaning assigned to them in the CPC Regulation.

These regulations shall apply to intra-Union infringements,

widespread infringements and widespread infringements with a Union

dimension, even if those infringements have ceased before

enforcement starts or is completed.

The Malta Financial Services Authority established by the

Malta Financial Services Authority Act shall be one of the competent

authorities in Malta responsible for the application of the CPC

Regulation.

(1) The Authority shall exercise and fulfil all the Applicability of

functions, obligations and powers which are required or may be the

Regulation to

imposed on competent authorities in accordance with the CPC the Authority.

Regulation and it shall satisfy all the applicable obligations and

requirements imposed on competent authorities by the CPC

Regulation.

(2) Without prejudice to sub-regulation (1), the Authority may,

for the better implementation of the CPC Regulation, exercise any of

the powers assigned to it under the Act.

(1) Without prejudice to any other supervisory, Powers of the

regulatory, enforcement and investigatory powers assigned to the Authority.

Authority under the Act or any other law, in order to fulfil its duties

under the CPC Regulation, the Authority shall have the following

investigatory and enforcement powers

(a) the power to access any relevant documents, data or

information related to an infringement covered by the CPC

Regulation, in any form or format and irrespective of their

storage medium, or the place where, they are stored;

(b) the power to require any public authority, body or

agency in Malta or any natural or legal person to provide any

relevant information, data or documents, in any form or format

and irrespective of their storage medium, or the place where they

are stored, for the purposes of establishing whether an

infringement covered by the CPC Regulation has occurred or is

occurring, and for the purposes of establishing the details of such

infringement, including tracing financial and data flows,

ascertaining the identity of persons involved in financial and data

flows, and ascertaining bank account information and ownership

of websites;

(c) the power to carry out necessary on-site inspections,

including the power to enter any premises, land or means of

transport that the trader concerned by the inspection uses for

purposes related to his trade, business, craft or profession, or to

request other public authorities to do so, in order to examine,

seize, take or obtain copies of information, data or documents,

irrespective of their storage medium;

(d) the power to seize any information, data or

documents for as long as the Authority may deem necessary and

to the extent necessary for the inspection;

(e) the power to request any representative or member of

the staff of the trader concerned by the inspection to give

explanations of facts, information, data or documents relating to

the subject matter of the inspection and to record the answers;

(f) the power to purchase goods or services as test

purchases, where necessary, under a cover identity, in order to

detect infringements covered by the CPC Regulation and to

obtain evidence, including the power to inspect, observe, study,

disassemble or test goods or services;

(g) the power to adopt interim measures to avoid the risk

of serious harm to the collective interests of consumers;

(h) the power to seek to obtain or to accept commitments

from the trader responsible for the infringement covered by the

CPC Regulation to cease that infringement;

(i) the power to receive from the trader, on the trader’s

initiative, additional remedial commitments for the benefit of

consumers that have been affected by the alleged infringement

covered by the CPC Regulation, or, where appropriate, to seek to

obtain commitments from the trader to offer adequate remedies

to the consumers that have been affected by that infringement;

(j) the power to issue a directive in writing requiring the

cessation of infringements covered by the CPC Regulation by the

trader;

(k) the power to bring about the cessation or the

prohibition of infringements covered by the CPC Regulation;

(l) where no other effective means are available to bring

about the cessation or the prohibition of the infringement

covered by the CPC Regulation and in order to avoid the risk of

serious harm to the collective interests of consumers

(i) the power to remove content or to restrict

access to an online interface or to order the explicit display

of a warning to consumers when they access an online

interface;

(ii) the power to order a hosting service provider to

remove, disable or restrict access to an online interface; or

(iii) where appropriate, the power to order domain

registries or registrars to delete a fully qualified domain

name and to allow the competent authority concerned to

register it

Provided that the powers listed in sub-paragraphs (i), (ii)

and (iii) shall include the power to request a third party or other public

authority to implement such measures; and

(m) the power to start investigations or proceedings on its

own initiative to bring about the cessation or prohibition of

infringements covered by the CPC Regulation.

(2) Where applicable, the Authority may consult consumer

organisations, trader associations, any designated bodies or other

persons concerned, regarding the effectiveness of the proposed

commitments in bringing the infringement covered by the CPC

Regulation to an end.

(3) The Authority may issue Rules in terms of article 16(2)(a)

and article 20A(3) of the Act for the better carrying out of these

regulations.

(1) Without prejudice to any other supervisory, Administrative

regulatory, enforcement and investigatory powers of the Authority penalties.

under the Act or any other law, the Authority shall, by notice in writing

and without recourse to a court hearing, impose an administrative

penalty which may not exceed the sum of one hundred and fifty

thousand euro (€150,000) in respect of breaches by any person of the

provisions of the Act or regulations or Rules made thereunder

implementing the provisions of the CPC Regulation, for the failure to

comply with any decision, order, interim measure, trader’s

commitment or other measure adopted pursuant to the CPC

Regulation, and in respect of infringements by any person covered by

the CPC Regulation.

(2) The administrative penalties taken pursuant to sub-

regulation (1) shall be effective, proportionate, and dissuasive, in

accordance with the requirements of Union laws that protect

consumers’ interests. In particular, due regard shall be given, as

appropriate, to the nature, gravity and duration of the infringement in

question.

The implementation and the exercise of powers set out in Exercise of

these regulations in application of the CPC Regulation shall be powers.

proportionate and shall comply with Union and Maltese law, including

with applicable procedural safeguards and with the principles of the

Charter of Fundamental Rights of the European Union. The

investigation and enforcement measures adopted in application of the

CPC Regulation shall be appropriate to the nature and the overall

actual or potential harm of the infringement of Union laws that protect

consumers’ interests.

The Authority may publish any final decision, trader’s

commitments or orders adopted pursuant to these regulations and, or

the CPC Regulation. The publication referred to in this regulation shall

include publication of the identity of the trader responsible for an

infringement covered by the CPC Regulation.

A right of appeal to the Financial Services Tribunal shall lie

from the decisions which the Authority shall take under these

regulations and, or the CPC Regulation and the provisions of article 21

of the Act shall apply mutatis mutandis.

€0.27