DISTANCE SELLING (RETAIL FINANCIAL SERVICES) REGULATIONS

SUBSIDIARY LEGISLATION 330.07

DISTANCE SELLING (RETAIL FINANCIAL

SERVICES) REGULATIONS

4th February, 2005

LEGAL NOTICE 36 of 2005, as amended by Legal Notices 116 of 2006,

424 of 2007,290 of 2008 and 2 of 2020.

The title of these regulations is the Distance Selling (Retail

Financial Services) Regulations.

(1)

In these regulations, unless the context otherwise

requires -

"the Act" means the Malta Financial Services Authority Act;

"Arbiter" means the Arbiter for Financial Services appointed

under article 14 of the Arbiter for Financial Services Act;

"Central Bank" means the Central Bank of Malta as defined by the

Central Bank of Malta Act;

"the Commission" means the Commission of the European

Community;

"the competent authority" means the Malta Financial Services

Authority as established by the Act;

"consumer" means any natural person who, in a distance contract

a c ts f o r p u r p o s e s w h ic h f a l l o ut s id e t he t r ad e , bu s in e ss o r

profession of such person;

"the CRD" means Directive 2013/36/EU of the European Parliament

and of the Council of 26 June 2013 on the access to the activity of

credit institutions and the prudential supervision of credit institutions

and investment firms, amending Directive 2002/ 87/EC and repealing

Directives 2006/48/EC and 2006/49/EC, as amended from time to

time, and includes any implementing measures that have been or may

be issued thereunder;

"distance contract" means any contract concerning a financial

service concluded between a supplier and a consumer under an

organised distance sales or service-provision scheme run by the

supplier, who, for the purpose of that contract, makes exclusive use

of one or more means of distance communication up to and

including the time at which the contract is concluded;

"Distance Marketing Directive" means 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;

"durable medium" means any instrument which enables the

c o ns um e r t o s t o r e in f o r m a t io n a d dr e s s e d pe rs on a l l y t o t h e

consumer in a way accessible for future reference for a period of

time adequate for the purposes of the information and which allows

the unchanged reproduction of the information stored, including in

particular floppy discs, CD-ROMs, DVDs and the hard drive of the

consumer’s computer on which the electronic mail is stored, but

excluding Internet websites unless these otherwise fall within this

definition of a durable medium;

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

agreement on the European Economic Area signed at Oporto on the

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

17th March 1993 and as amended from time to time;

"Electronic Money Directive" means Directive 2009/110/EC of the

European Parliament and of the Council of 16 September 2009 on

the taking up, pursuit and prudential supervision of the business of

electronic money institutions amending Directives 2005/60/EC and

2006/48/EC and repealing Directive 2000/46/EC, as may be

amended from time to time, and includes any implementing

measures, implementing technical standards, regulatory technical

standards and similar measures that have been or may be issued

thereunder;

"European Community" means the organisation established by

the Treaty of Rome in 1957 and amended institutionally and

otherwise in 1986 by the Single European Act, in 1993 by the

Treaty on European Union, in 1997 by the Treaty of Amsterdam

and in 2001 by the Treaty of Nice and as amended by accession

agreements and as may be further amended from time to time;

"financial service" means any service of a banking, credit,

insurance, personal pension, investment or payment nature and

shall include all services the carrying out of which requires a

licence or other authorisation from the competent authority or

which otherwise fall under its supervisory functions;

"initial service agreement" means a primary agreement from

which secondary agreements may result such as but not limited to -

(i) the opening of a bank account;

(ii) acquiring a credit card; or

(iii) concluding a portfolio management contract;

"intermediary" refers to a person who, acting as an intermediary,

has been involved to a relevant or material degree in the conclusion

of a distant contract, and this irrespective of his legal status or

relationship with the supplier;

"list of qualified entities" means the list compiled and updated by

the Commission and published in the Official Journal of the

European Communities listing the qualified entities in Member

States and EEA States in accordance with Article 4 of the Directive

98/27/EC of the European Parliament and of the Council of 19th

May 1998 on injunctions for the protection of consumer interests;

"means of distance communication" refers to any method which,

without the simultaneous physical presence of the supplier and the

consumer, may be used for the distance marketing of a service

between those parties, including unaddressed printed matter,

addressed printed matter, standard letters, press advertising with

orders, catalogues, telephone with human intervention, telephone

without human intervention (automatic calling machines,

audiotext), radio, videophone (telephone with screen), videotext

(microcomputer and telephone screen) with keyboard or touch

screen, electronic mail, facsimile machine (fax) and television

(teleshopping);

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

"payment service" means any business activity set out in the

Second Schedule to the Financial Institutions Act;

"Payment Services Directive" means Directive (EU) 2015/2366

of the European Parliament and of the Council of 25 November

2015 on payment services in the internal market, amending

D i r e c t i v e s 2 0 0 2 / 6 5 / E C , 2 0 0 9 / 11 0 / E C a n d 2 0 1 3 / 3 6 / E U an d

Regulation (EU) No 1093/2010, and repealing Directive 2007/64/

EC, as may be amended from time to time, and includes any

implementing measures, implementing technical standards,

regulatory technical standards and similar measures that have been

or may be issued thereunder;

"payment service provider" means

(a) credit institutions as defined in article 2(1) of the

Banking Act, including branches thereof as defined in

article 2(1) of the Banking Act where such branches

are located in the European Union, irrespective of

whether the head offices of those branches are located

within the European Union or, in accordance with

Article 47 of the CRD and with national law, outside

the European Union;

(b) electronic money institutions as defined in article 2(1)

of the Financial Institutions Act, being companies, that

have been granted authorisation under Title II of the

Electronic Money Directive to issue electronic money,

including, in accordance with Article 8 of that

Directive and with national law, branches thereof,

where such branches are located within the European

Union and their head offices are located outside the

European Union, in as far as the payment services

provided by those branches are linked to the issuance

of electronic money;

(c) post office giro institutions which are entitled under

national law of any Member State to provide payment

services;

(d) payment institutions as defined in article 2(1) of the

Financial Institutions Act;

(e) account information service providers as defined in

article 2(1) of the Financial Institutions Act;

(f)

the European Central Bank and national central banks

when not acting in their capacity as monetary authority

or other public authorities; or

(g) Member States or their regional or local authorities

when not acting in their capacity as public authorities.

"personal pension arrangement" means any savings arrangement

for retirement which is supplemental to a State pension or an

occupational pension scheme being a pension arrangement offered

through the employer;

"professional" means any person engaged in work -

(a) involving the exercise of discretion and judgment in its

performance;

(b) requiring knowledge of an advanced type in a field of

learning; and

(c) including but not limited to persons authorised to

provide expert assistance with investment, estate,

retirement and financial planning; employee benefits;

business and compensation planning; and life, health,

disability, and long-term care insurance;

"qualified entity" means

(a) a registered consumer association within the meaning

of Part IV of the Consumer Affairs Act;

(b) one or more independent public bodies, having a

legitimate interest in ensuring the protection of the

collective interests of consumers of financial services

by distance contracts in other Member States or EEA

States in which such bodies exist;

(c) voluntary organisations in other Member States or

EEA States whose purpose is to protect the interests

referred to in paragraph (b) of this definition in

accordance with the criteria laid down by their

national law;

(d) organisations recognised by the competent authority as

collectively representing professional financial service

suppliers; or

(e) any qualified entity from a Member State or EEA State

included in the list of qualified entities;

"supplier" means any natural or legal person providing a

financial service at a distance by virtue of a distance contract,

including any person involved as an intermediary in any of the

marketing stages of the distance contact.

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

also used in the Act shall have the same meanings as in the Act.

(1) The object of these regulations is to implement the

provisions of 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, and

shall be interpreted and applied accordingly.

(2) Regulations 15 to 23 implement the provisions of Directive

98/27/EC of the European Parliament and of the Council of 19th

May 1998 on injunctions for the protection of consumer interests,

as applicable to the distance marketing of consumer financial

services and shall be interpreted and applied accordingly.

(3) In relation to the Distance Marketing Directive, the Malta

Financial Services Authority shall be the competent authority for

all the purposes of Regulation (EC) No 2006/2004 of the European

Parliament and of the Council of 27 October 2004 on cooperation

between national authorities responsible for the enforcement of

consumer protection laws.

(1) These regulations apply to any distance contract

service provision scheme organised by a financial services supplier,

carrying on financial services activities in or from Malta, and

accordingly do not apply to services provided on a strictly one-off

or occasional basis or to services falling outside a commercial

structure dedicated to the conclusion of distance contracts.

(2) Where a distance contract for financial services does not

comprise an initial service agreement but comprises successive

operations or a series of separate operations of the same nature

performed over time between the same contractual parties, the

provisions of regulation 5 apply only when the first operation is

performed. Where, however, no operation of the same nature is

performed for more than one year, the next operation will be

deemed to be the first in a new series of operations and,

accordingly, regulation 5 shall apply.

(3) Where a distance contract for financial services comprises

an initial service agreement followed by successive operations or a

series of separate operations of the same nature performed over

time, the provisions of these regulations shall apply only to the

initial agreement.

(1) Where a supplier and a consumer are in communication

regarding the conclusion of a distance contract and in reasonable

time before the consumer is bound by a distance contract or offer,

the supplier shall, in a clear and comprehensible manner

appropriate to the means of distance communication used, provide

the consumer with information concerning the supplier, the

financial services involved in the offer, the nature of the distance

contract and the forms of redress available, as follows

(a) Information regarding the supplier

(i)

the identity and the main business of the

supplier, the full geographical or main business

address where the supplier is established and

any other geographical or business address

relevant for the customer’s relations with the

supplier;

(ii) the identity of the representative of the supplier

established in the consumer’s country of

residence, being within a Member State or EEA

State and the geographical or full business

address relevant for the customer’s relations

with the representative in such State, if such a

representative exists;

(iii) when the consumer’s dealings are with any

professional other than the supplier, the identity

DISTANCE SELLING (RETAIL FINANCIAL SERVICES)

of this professional, the capacity in which he is

acting in his dealings with the consumer, and the

full geographical and main business address

relevant for the consumer’s relations with such

professional;

(iv)

where the supplier is a body corporate registered

in a companies register, or in any case the

supplier is registered in a trade or similar public

register, the register in which the supplier is

entered and the supplier’s registration number or

an equivalent means of identification in that

register; and

(v)

where the supplier’s activity is subject to a

licence or any other authorisation scheme, the

particulars of the relevant supervisory authority;

(b) Information regarding the financial service

(i)

a description of the main characteristics of the

financial service which is the subject of the

offer;

(ii) the total price to be paid by the consumer to the

supplier for the financial service, including all

related fees, charges and expenses, and all taxes

paid via the supplier or, when an exact price

cannot be indicated, the basis for the calculation

of the price enabling the consumer to verify it;

(iii) where relevant, clear and specific notice

indicating that the financial service is related to

instruments involving special risks related to

their specific features or the operations to be

executed or whose price depends on fluctuations

in the financial markets outside the supplier’s

control and that historical performances are no

indicators for future performances;

(iv) notice of the possibility that other taxes and, or

costs may exist that are not imposed by or paid

through the supplier;

(v) any limitations of the period for which the

information provided is valid;

(vi) the arrangements for payment and for

performance; and

(vii)

any specific additional cost for the consumer of

using the means of distance communication, if

such additional cost is charged;

(c) Information regarding the distance contract

(i)

the existence or absence of a right of withdrawal

or cancellation in accordance with regulation 7

and, where the right of withdrawal exists, its

duration and the conditions for exercising it,

including information on the amount which the

consumer may be required to pay on the basis of

regulation 8(1), as well as the consequences of

non-exercise of the right of withdrawal;

(ii) the minimum duration of the distance contract in

the case of financial services to be performed

permanently or recurrently;

(iii) information on any rights the parties may have

to terminate the contract early or unilaterally by

virtue of the terms of the distance contract,

including any penalties imposed by the contract

in such cases;

(iv) practical instructions for exercising the right of

withdrawal indicating, inter alia, the address

where the notification of a withdrawal should be

sent;

(v) the Member State or EEA State whose laws are

taken by the supplier as a basis for the

establishment of relations with the consumer

prior to the conclusion of the distance contract;

(vi) any choice of law or choice of jurisdiction

clause;

(vii)

in which language, or languages, the contractual

terms and conditions, and the prior information

referred to in this regulation are supplied, and

furthermore in which language, or languages,

the supplier, with the agreement of the

consumer, undertakes to communicate during the

duration of this distance contract;

(d) Information regarding the right to redress

(i)

details regarding the procedure for lodging a

complaint to the supplier and the relevant contact

details of the office responsible for complaints;

(ii) that the Arbiter offers an out-of-court complaints

mechanism for the consumer that is party to the

distance contract and the methods for having

access thereto;

(iii) the existence of any other out-of-court redress

mechanism available to the consumer and

methods for gaining access thereto; and

(iv) any compensation schemes or other compensation

arrangements or guarantees funds as may be

applicable

Provided that paragraphs (a), (b)(i), (b)(ii), (c)(ii),

(c)(iii), (c)(vi), (c)(vii), (d)(i), (d)(ii) and (d)(iii) shall not apply to

suppliers which are payment service providers

Provided further that Articles 44, 45, 51 and 52 of the

Payment Services Directive as transposed in directives issued by

the Central Bank under the Central Bank of Malta Act shall also

apply to suppliers which are payment service providers.

(2) The information required in subregulation (1) shall be

provided with due regard to the principles of good faith in

commercial transactions, and any legislation governing the

protection of those who are unable to give their consent, such as

minors. The supplier must make clear the commercial purpose of

the information given.

(3)

(a) In the case of voice telephony communications the

identity of the supplier and the commercial purpose of

the call initiated by the supplier shall be made

explicitly clear at the beginning of any conversation

with the consumer

Provided that, subject to the explicit consent of the

consumer, only the following information shall need to

be given

(i)

the identity of the person in contact with the

consumer and that person’s link with the

supplier,

(ii) a description of the main characteristics of the

financial service,

(iii) the total price to be paid by the consumer to the

supplier for the financial service including all

taxes paid via the supplier or, when an exact

calculation of the price enabling the consumer to

verify it;

(iv) notice of the possibility that other taxes and, or

costs may exist that are not paid via or imposed

by the supplier;

(v) the existence or absence of a right of withdrawal

in accordance with regulation 7 and, where the

right of withdrawal exists, its duration and the

conditions

for exercising it, including

information on the amount which the consumer

may be required to pay on the basis of regulation

8(1).

(b) The supplier shall inform the consumer in the

telephone communication that other information is

available at the latter’s request and shall explain the

nature of this information. In any event, the supplier

shall provide the full information when fulfilling the

obligations under regulation 6.

(4) During the pre-contractual phase, the supplier shall ensure

that information on contractual obligations to be communicated to

the consumer is in conformity with the contractual obligations

which would result from the law presumed to be applicable to the

distance contract if such distance contract were concluded.

(5) The provisions of this regulation shall be without prejudice

to any other legislation, regulation or rules governing financial

services which provides for prior information requirements

additional to those listed in this regulation.

(1) The supplier shall communicate to the consumer all the

contractual terms and conditions and the information referred to in

regulation 5 in written form or on another durable medium

available and accessible to the consumer in reasonable time before

the consumer is bound by any distance contract or offer.

(2) Where the distance contract has been concluded at the

consumer ’s request using a means of distance communication

which does not permit the provision of the information as required

under subregulation (1), the supplier shall fulfil his obligations

under this subregulation immediately after the conclusion of the

distance contract.

(3) Where the supplier has not fulfilled the obligations under

subregulations (1) or (2), the distance contract shall, at the option

of the consumer, be annullable by and unenforceable against the

consumer.

(4) The consumer may, at any time during the contractual

relationship, request to receive the contractual terms and conditions

of the distance contract in written form, which the supplier must

duly and promptly provide.

(5) The consumer may, at any time during the contractual

relationship, change the means of distance communication used

with the supplier unless this is incompatible with the distance

contract concluded or the nature of the financial service supplied.

(1) In every distance contract, a consumer shall have a

period of fourteen calendar days to withdraw from the distance

contract without incurring any penalty and without having to give

any reason

Provided that this period shall be extended to thirty

calendar days where the distance contract relates to long term

business contracts of insurance covered by Directive 2002/83/EC

and to personal pension arrangements.

(2) The period for exercising this right of withdrawal shall

commence

(a) from the day of the conclusion of the distance contract,

except in the case of long term business contracts of

insurance covered by Directive 2002/83/EC, where the

time limit commences from the time when the

consumer is informed in writing on paper or on

another durable medium available and accessible to

the consumer that the distance contract has been

concluded, or

(b) from the day on which the consumer receives the

contractual terms and conditions and the information

in accordance with regulation 6(1) and (2), where this

date is later than the date referred to in paragraph (a).

(3)

The right of withdrawal shall not apply to

(a) financial services whose price depends on fluctuations

in the financial market outside the suppliers control,

which may occur during the withdrawal period, such

as services related to foreign exchange, money market

instruments, transferable securities, units in collective

investment undertakings, financial futures contracts,

including equivalent cash-settled instruments, forward

interest-rate agreements, interest-rate, currency and

equity swaps and options to acquire or dispose of any

instruments referred to in this point including

equivalent cash-settled instruments and including in

particular options on currency and on interest rates;

(b) travel and baggage insurance policies or similar short-

term insurance policies of less than one month’s

duration;

(c) distance contracts whose performance has been fully

completed by both parties at the consumer’s express

request before the consumer exercises the right of

withdrawal.

(4) Where the consumer exercises the right of withdrawal, the

consumer shall, before the expiry of the relevant deadline, notify

this withdrawal to the supplier by means which can be proved in

accordance with national law and in accordance with the practical

instructions given to the consumer in accordance with regulation

5(1)(c)(iv). The relevant deadline shall be deemed to have been

observed if the notification, if it is on paper or on another durable

medium available and accessible to the recipient, is dispatched

before the deadline expires.

(5) This regulation does not apply to credit agreements

cancelled under the conditions of article 6(4) of Directive 97/7/EC

or article 7 of Directive 94/47/EC of the European Parliament and

of the Council of 26 October 1994 on the protection of purchasers

in respect of certain aspects of contracts relating to the purchase of

the right to use immovable properties on a timeshare basis.

(6) Where to a distance contract of a given financial service

another distance contract has been attached concerning services

provided by the supplier or by a third party on the basis of an

agreement between the third party and the supplier, this additional

distance contract shall be cancelled, without any penalty, if the

consumer exercises the right of withdrawal as provided for in

regulation 7(1).

(7) The provisions of this regulation are without prejudice to

the provisions of any other laws or regulations governing the

cancellation or termination or non-enforceability of a distance

contract or the right of a consumer to fulfil the contractual

obligations before the time fixed in the distance contract. This

applies irrespective of the conditions for and the legal effects of the

winding-up of the distance contract.

(1) When the consumer exercises the right of withdrawal

under regulation 7(1) the consumer may only be required to pay,

without any undue delay, for the service or benefit actually

provided by the supplier in accordance with the distance contract,

in any case the amount payable by the consumer shall not -

(a) exceed an amount which is in proportion to the extent

of the service already provided in comparison with the

full coverage of the distance contract; or

(b) in any case be such that it could be construed as a

penalty.

(2) The performance of any distance contract may only begin

after the consumer has given prior approval.

(3) Where a notice of cancellation in terms of these regulations

operates to cancel an insurance contract, the consumer shall not be

required to pay any amount of money upon or consequent to the

cancellation

Provided that any benefit under the policy which the insurer

has paid to the person serving the notice shall be refunded by such

person to the insurer.

(4) The supplier may not require the consumer to pay any

amount on the basis of subregulation (1) unless the supplier can

prove that the consumer was duly informed about the amount

payable, in conformity with regulation 5(1)(c)(i)

Provided that in no case may the supplier require such

payment if the performance of the distance contract has already

commenced before the expiry of the withdrawal period provided

for in regulation 7(1) and without the consumer’s prior request.

(5) The supplier shall, without any undue delay and no later

than within thirty calendar days, return to the consumer any sums

the supplier has received from the consumer in accordance with the

distance contract, except for the amount referred to in

subregulation (1). This period shall begin from the day on which

the supplier receives the notification of withdrawal.

(6) The consumer shall return to the supplier any sums and, or

property he has received from the supplier without any undue delay

and no later than within thirty calendar days. This period shall

begin from the day on which the consumer dispatches the

notification of withdrawal.

The consumer is entitled to cancel a payment made by

credit or debit card where fraudulent use has been made of the

consumer’s payment card in connection with a distance contract to

which these regulations apply. In any such instance, the consumer’s

bank account shall be re-credited with all sums paid as a result of

such fraudulent use or else such sums shall be returned to the

consumer by some other means.

(1) Without prejudice to any provisions on the tacit

renewal of distance contracts, a consumer is not liable to pay a

supplier for any unsolicited financial services supplied to the

consumer without any prior request.

(2) A consumer may treat any unsolicited financial services

supplied by a supplier as if they were an unconditional gift and any

right of the supplier thereto shall be terminated.

(3)

A supplier who makes a demand for payment, or asserts a

present or prospective right to payment for financial services

unsolicited by the consumer, shall be liable to an administrative

penalty in terms of regulation 25.

(4) A supplier shall be liable to an administrative penalty in

terms of regulation 25, if with a view to obtaining any payment for

unsolicited financial services, the supplier -

(a) threatens to bring any legal proceedings against the

consumer;

(b) places or causes to be placed the name of a consumer

on a list of defaulters or debtors, or threatens to do so;

or

(c) invokes or causes to be invoked any other collection

procedure, against the consumer or threatens to do so.

(1) A supplier shall not make use of the following means

of distance communication without obtaining the consumer’s prior

consent

(a) automated calling systems without human intervention

(automatic calling machines); or

(b) fax machines.

(2) Means of distance communication which allow individual

communications, excluding those referred to in subregulation (1),

may be used as long as the consumer has not expressed his manifest

objection thereto.

(3) If the supplier persists in addressing means of distance

communications to a consumer after having been asked, even

verbally, by such consumer to desist, the supplier shall be liable to

an administrative penalty in terms of regulation 25.

(4) The measures referred to in subregulations (1) and (2) shall

not entail costs for consumers.

(1) A consumer who feels aggrieved in relation to a

financial service provided at a distance may refer his complaint to

the Arbiter in terms of the Arbiter for Financial Services Act.

(2) The Arbiter for Financial Services shall, to the extent

possible, assist and cooperate with bodies responsible for out-of-

court settlement of disputes in Malta and in other Member States

and EEA States in the resolution of local and cross-border disputes

concerning financial services falling under these regulations.

(1) Where a qualified entity wishes to seek a compliance

order, it shall submit its written application to the competent

authority. In its application, it must satisfy the competent authority

that it has tried to achieve the cessation of the infringement in

consultation with either the defendant or both the defendant and

another qualified entity of the Member State or EEA State in which

the injunction is sought. The competent authority shall only

entertain a written application if the qualified entity shows to the

satisfaction of the competent authority that the cessation of the

infringement was not achieved within two weeks after the request

for consultation was received.

(2) Where the qualified entity is from another Member State or

EEA State, the competent authority shall treat the list of qualified

entities published by the Commission as conclusive proof of the

legal capacity of the legal entity to present such written application

in Malta.

(3) The competent authority shall, at the request of a qualified

entity from Malta, communicate to the Commission the name and

objects of such entities and that such qualified entity should be

added to the list of qualified entities so as to facilitate the redress of

inter-community infringements.

(4) Before proceeding for the issue of a compliance order under

regulation 14, the competent authority shall, if it considers it to be

possible and reasonable to do so, seek first to achieve voluntary

c o m p li a nc e b y t h e s u p p l ie r an d o t h e r p e r s o n s i nv o l ve d , in

accordance with these regulations or with any other law dealing

with consumer rights and protection.

(1) Where the competent authority feels it reasonably

appropriate or necessary for the protection of consumers, it may, of

its own initiative or on a written application to it by a qualified

entity, issue a compliance order against a supplier, for one or more

of the following purposes

(a) ordering the deletion or alteration of particular clauses

incorporated in a distance consumer contract which the

competent authority considers as being unfair to

consumers or as creating a significant imbalance

between the rights and obligations of the contracting

parties in a manner detrimental to consumers;

(b) ordering the incorporation of terms in a distance

contract which the competent authority considers to be

necessary for the better information or protection of

consumers, or for preventing a significant imbalance

between the rights and obligations of the parties in a

manner detrimental to consumers;

(c) requiring any person to take any measures specified in

the compliance order, within the time specified in the

compliance order to ensure that these regulations are

complied with;

(d) requiring any person to cease or desist from

committing a breach of these regulations.

(2) The competent authority shall when issuing a compliance

order under this regulation -

(a) serve a copy of the compliance order on each person

against whom the order is made;

(b) include with the compliance order, information about

the right to institute an action before the Financial

Services Tribunal in accordance with regulation 17;

and

(c) briefly state the reasons for issuing the compliance

order, which reasons shall be notified to each person

against whom the compliance order is issued and, if

any, to the qualifying body on whose application the

compliance order is issued.

(3) No precautionary warrant or other order under any other

l a w s h a l l b e i s s u e d b y a n y c o u r t or t r ib u n a l r e s t r a i n i n g o r

restricting the competent authority from issuing a compliance order

under these regulations.

(1) It shall be at the discretion of the competent authority

whether or not to issue a compliance order after a written request

by a qualified entity has been made to it in terms of regulation 14.

(2) If the competent authority decides not to issue a compliance

order after an application has been made to it by a qualified entity,

it shall, within seven days from the date of its decision, notify in

writing the qualified entity and the persons against whom the

compliance order is requested with its decision stating the reasons

therefor.

(3) A qualified entity may within fifteen days from the date of

notification upon it of the decision of the competent authority not

to issue a compliance order, institute an action before the Financial

Services Tribunal for the issue of an order requiring the competent

authority to issue a compliance order under regulation 14. The

persons against whom the compliance order is requested to be made

shall be parties to the suit, and it shall be the duty of the qualified

entity to notify such persons accordingly.

(4) In the exercise of its functions and powers under this

regulation, the Tribunal shall in all cases act as expeditiously as

possible. In the case of an application by a qualifying body, the

Tribunal shall give its decision within fifteen days from receipt of

the application.

A compliance order issued by the competent authority shall

come into force with immediate effect.

(1) A person against whom a compliance order has been

made, may, within fifteen days from receipt of notification of the

compliance order, appeal in writing to the Financial Services

Tribunal for the revocation or amendment of the compliance order,

giving detailed grounds for the request. Such appeal may be made

only on the following grounds

(a) the competent authority has, in its decision wrongly

applied any of the provisions of the Act; or

(b) the decision of the competent authority constitutes an

abuse of discretion or is manifestly unfair.

(2) The Financial Services Tribunal may confirm, change or

cancel the compliance order on any terms or conditions it considers

appropriate.

(3) Where an appeal is instituted under subregulation (1), the

compliance order shall remain in force unless the Financial

Services Tribunal specifically orders that the compliance order

shall be stayed pending the outcome of the appeal, subject to such

conditions and amendments as it may determine. In any such

instance, the competent authority may request the Financial

Services Tribunal to make an interim compliance order, ordering

that the compliance order shall, subject to such modifications as the

competent authority may suggest, continue in force pending the

final determination of the case instituted in accordance with

subregulation (1). An interim compliance order shall expire upon

the final determination of the case.

(4) Subject to this regulation, the provisions of article 21 of the

Act shall govern appeals to the Tribunal.

Appeals instituted under regulations 15(3) and 17 shall be

heard and determined by the Financial Services Tribunal with

urgency and as expeditiously as possible.

The competent authority, when issuing a compliance order

under regulation 14, shall not be required to prove -

(a) actual loss or damage; or

(b) actual recklessness, negligence or fault on the part of

the supplier or person against whom the order is made.

(1) The competent

authority

may,

for

the

better

information of the public -

(a) publish a copy of the compliance order made under

regulation 14 against any such person, in full or in

part; and, or

(b) order any person to publish a corrective statement in

relation to any contravention of these regulations.

(2) Publication in terms of subregulation (1) shall be made at

the expense of the supplier or person concerned in at least two daily

newspapers within seven days from receipt of the notice and shall

be at the expense of the person served with such notice. Where such

publication is not effected as aforesaid, the competent authority

may proceed to effect publication itself, in which case it shall have

the right to recover from the person on whom the notice is served,

any expenses incurred, as a civil debt.

The competent authority may in writing authorise a public

or other officer to perform any of its functions in relation to the

enforcement of these regulations or exercise any power granted to

it under these provisions. Any such officer shall when required,

prod uc e t he w ri tt en au th ori sation signed by the competent

authority.

(1) For the purpose of discharging its functions under

these regulations, the competent authority may -

(a) enter and search any premises, other than premises

used exclusively as a place of residence;

(b) make any inspection, conduct any test and take any

books, documents or records however kept or stored

Provided that no entry and search shall be effected between

s e v e n i n t he e v e n i n g a n d s e v e n i n t he m o r n i n g , u n l e s s th e

competent authority has reason to believe that delay could cause

the loss of necessary information.

(2) Where the competent authority takes any book, document

or record under this regulation, the competent authority may retain

that book, document or record -

(a) for as long as it is necessary to enable it to be

inspected and copies of extracts from it to be made or

taken, or

(b) if it is required as evidence in proceedings for a breach

of these regulations.

(3) The competent authority shall give to the person from

whom anything has been taken, a receipt for what has been taken.

(4) If the competent authority keeps the original of any book,

document or record, it shall allow the owner thereof to have

reasonable access thereto or to a copy thereof as soon as

practicable.

(5) Nothing in this regulation shall be deemed to restrict or

detract from the powers of the competent authority under any other

law, or from the powers of the Police under the Criminal Code or

any other law.

(6) In the course of any entry and search under these

regulations, the competent authority may request the assistance of

the Police.

(1) The competent authority may, for the purpose of

discharging its functions under these regulations, require any

person to provide any information in any manner, including

(a) by answering any questions, orally or in writing; or

(b) by producing any books, documents or other records as

the competent authority may consider to be necessary.

(2) Any such person shall promptly comply with any such

request.

(1) A supplier, licensed or otherwise authorised to offer a

financial service by the competent authority, shall be liable to an

administrative penalty in terms of regulation 25 if the supplier, or

the manager, secretary, director or other person responsible for the

supplier’s activity -

(a) is responsible for behaviour specifically referred to in

regulations 10(3) and (4) or 11(3);

(b) fails to observe any other provision in these

regulations;

(c) fails to comply with a compliance order issued under

these regulations; or

(d) refuses or fails to furnish information as required

under these regulations or else provides false or

misleading information.

(2) A supplier, licensed or otherwise authorised to offer a

financial service by the competent authority, shall be liable to an

administrative penalty if such supplier -

(a) wilfully obstructs, assaults, threatens, resists or

interferes with the competent authority or a public

officer in the exercise of its duties under these

regulations or attempts so to do; or

(b) uses threatening, abusive or insulting language to the

representatives of the competent authority or a public

officer in the course of duties delegated pursuant to the

provisions of regulation 21.

(1) In the event of liability arising in terms of regulation

24 the competent authority may by notice in writing and without

recourse to a court hearing impose on the supplier, or the manager,

secretary, director or other person responsible for the supplier’s

activity as, the case may be, an administrative penalty which may

not exceed ninety-three thousand and one hundred and seventy-four

euros and ninety-four cents (93,174.94).

(2) Within a period of thirty days beginning with the date of

service of a notice imposing an administrative penalty in

accordance with subregulation (2), a person upon whom the notice

is served may appeal to the Financial Services Tribunal against the

decision of the competent authority in accordance with article 21 of

the Act.

(3) Where a notice as referred to in subregulation (2) has not

been appealed or where such notice has been appealed within

fifteen days of the determination of such appeal, the administrative

penalty as contained in the notice or as reduced by the decision of

the Financial Services Tribunal shall be due to the competent

authority and upon the service of a copy of the notice or the

decision as the case may be, by means of a judicial act on the

person indicated in the notice or decision, the said notice or

decision shall constitute an executive title for all effects and

purposes of Title VII of Part I of Book Second of the Code of

Organization and Civil Procedure.

Nothing in these regulations shall prejudice or limit the

exercise of the powers of the competent authority to take

administrative measures or impose penalties under the Investment

Services Act, the Banking Act, the Financial Markets Act, the

Financial Institutions Act, the Insurance Business Act and the

Insurance Brokers and other Intermediaries Act, against a licensed

or authorized person who has contravened any of these regulations

or has failed to satisfy or comply with any obligation or condition

to which he may be subject under any of these Acts.

(1) Where an order or notice is required or authorised to

be served under these regulations it shall be served in any of the

following manners

(a) by delivering it, or by sending it by registered mail to

the person on whom it is to be served at such person’s

place of residence, office or place of work; or

(b) in the case of a body corporate or other body of

persons, by delivering it to an officer or servant

thereof at the registered office or any other place of

business, or sending it in a registered letter addressed

to any such office.

(2) In any case where it is not reasonably possible to effect

service in any manner stated in subregulation (1), the competent

authority may effect service by publishing a summary of such

notice in the Gazette and any two daily newspapers.

(1) Any contractual term or condition contained in a

distance contract providing that the burden of proof of the supplier

of all or part of the obligations incumbent on the supplier pursuant

to these regulations should lie with the consumer shall be an unfair

term within the meaning of Council Directive 93/13/EEC of 5 April

1993 on unfair terms in consumer contracts.

(2) Without prejudice to regulation 8(5), the burden of proof

shall be placed on the supplier in any dispute relating to -

(a) the content of the information supplied to the

consumer in accordance with regulation 5;

(b) the consent of the consumer to the conclusion of any

distance contract; and

(c) the compliance by the supplier with the time-limits

prescribed under these regulations.

(1) The rights conferred on consumers by

these

regulations may not in any way be waived by a consumer.

(2) A consumer shall not lose the protection provided by these

regulations by virtue of the choice of law of a non-Member State,

which law purports to regulate the contract where such contract has

close connection with Malta or any other Member State of EEA

State within the meaning of article 12 of the Distance Marketing

Directive.

These regulations may be applied to suppliers established

in any Member State or EEA w hich has n ot yet transposed

Directive 2002/65/EC and whose law has no obligations

corresponding to those provided for in these regulations.