MALTA FINANCIAL SERVICES AUTHORITY ACT (CONSUMER PROTECTION COOPERATION) REGULATIONS

(CONSUMER PROTECTION COOPERATION)

SUBSIDIARY LEGISLATION 330.17

MALTA FINANCIAL SERVICES AUTHORITY ACT

(CONSUMER PROTECTION COOPERATION)

REGULATIONS

17th June,2022

LEGAL NOTICE 176 of 2022.

(1)

The title of these regulations is the Malta

Financial Services Authority Act (Consumer Protection Cooperation)

Regulations.

(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

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

(CONSUMER PROTECTION COOPERATION)

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

functions, obligations and powers which are required or may be

imposed on competent authorities in accordance with the CPC

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

(CONSUMER PROTECTION COOPERATION)

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,

regulatory, enforcement and investigatory powers assigned to the

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

(CONSUMER PROTECTION COOPERATION)

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

(CONSUMER PROTECTION COOPERATION)

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,

regulatory, enforcement and investigatory powers of the Authority

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

these regulations in application of the CPC Regulation shall be

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.