IMPLEMENTATION OF THE SAFEGUARD CLAUSE ORDER

SUBSIDIARY LEGISLATION 460.06

IMPLEMENTATION OF

THE SAFEGUARD CLAUSE ORDER

1st May, 2004 *

LEGAL NOTICE 234 of 2004, as amended by Legal Notices 27 of 2005

and 427 of 2007.

The title of this Order is the Implementation of the

Safeguard Clause Order.

In this Order, unless the context otherwise requires

"the Act" means the European Union Act;

"arrivals" refers to the entry of goods into Malta from another

Member State of the European Community;

"the Commission" means the Commission of the European

Union;

"the Community" means the territory of the countries that are

members of the European Community;

"the competent authority" means the Ministry responsible for

agriculture;

"Court of Appeal" means the Court of Appeal as constituted in

terms of article 41(9) of the Code of Organization and Civil

Procedure;

"goods" means both Community and non-Community goods

unless otherwise specified;

"Member States" means countries that are members of the

European Community;

"the Minister" means Minister responsible for agriculture;

"person" means both a natural person or a corporate body;

"safeguard clause" means the legal instrument envisaging the

possible application of protective measures as stipulated in Article

37 of the Treaty and Section 7(A)1(c) of Annex XI of the same, in

relation to products listed in the Annex attached to this Order;

"the Treaty" means the Treaty as defined in the Act.

(1) The competent authority shall conduct market

surveillance in order to monitor and determine the arrivals and the

trade flow development in Malta of the goods listed in the Annex.

(2) The competent authority shall take any such measures as

may be necessary to implement the monitoring system referred to

in sub-article (1). In particular, it may require traders to report at

regular intervals the quantities, the prices at the wholesale level and

the origin of the goods listed in the Annex.

*See article 1(2) of this Order, as originally promulgated.

(3) In implementing the provisions of this Order, the competent

authority shall take into account data obtained by virtue of

(a) Commission Regulation (EC) 599/2004 concerning the

adoption of a harmonised model certificate and

inspection report linked to intra-Community trade in

animals and products of animal origin;

(b) notification and reporting obligations arising from

Community law in relation to intra-Community trade

in all animals and products referred to in Council

Directive 90/425/EEC, all products of animal origin

referred to in Council Directive 89/662 for which a

health certificate is required, and all animal by-

products referred to in Regulation (EC) No 1774/2002

of the European Parliament and of the Council for

which the rules require prior notification;

(c) notification and reporting obligations in relation to

non-Community goods; and

(d) any other notification and reporting obligations in

relation to the goods listed in the Annex.

(1) In accordance with Article 37 of the Treaty and subject

to the prior authorisation of the Commission, the Minister may

adopt protective measures as may be necessary for the

implementation of the safeguard clause and may take any such

measures and make any such provisions as may be necessary to

give effect to the protective measures so adopted.

(2) For the purposes of this article any market entry restriction

that may be envisaged to implement the protective measures, may

take the form of marketing certificates issued under the procedures

provided for in this Order.

(1) Marketing certificates shall be issued by the competent

authority to any person who files an application in relation to any

or all of the goods listed in the Annex

(a) for set quantities or maximum quantities and for a set

period of validity, and

(b) within a maximum of three weeks from the closing

date of a call for applications for marketing certificates

issued by the competent authority.

(2) If the quantities specified in the applications exceed the

quantities envisaged by the competent authority for the market by

virtue of the implementation of the safeguard clause, then the

competent authority shall reduce the quantities accordingly and

proportionately taking into account the arrivals and trade flow

development prior to the implementation of the safeguard clause.

(3) Goods originating from the Community shall, in no case, be

treated less favourably than goods originating from outside the

Community.

Marketing certificates shall be issued against payment by

the trader of a deposit, by way of security, in order to ensure that

the goods for which the certificate applies shall be marketed in

Malta within the period of validity of the certificate. The security

shall correspond to fifty per centum of the wholesale price of the

quantity for which the certificate shall be valid

Provided that the security referred to in this article shall be

refunded to the trader as soon as he proves to the competent

authority that the goods and quantities listed in the marketing

certificate have been marketed in Malta during the period of

val idity of the certificate. Evidence shall be considered as

sufficient if it is presented on an appropriate form and includes

information on

(a) the quantities of the respective goods;

(b) the delivery period or periods;

(c) the supplier of the goods;

(d) the name and address of the trader who was

responsible for the first sale in Malta; and

(e) on request of the competent authority, the presentation

of invoices.

Marketing certificates shall be suspended for as long as the

Commission provides in terms of any decision taken in accordance

with Article 37 of the Treaty.

(1) For the purpose of this Order, the competent authority

may inspect any relevant documents and can enter the business

premises and store rooms of the traders and demand the necessary

information to ensure adequate implementation of this Order. Any

s u c h i n s p e c t i o n i s t o t a k e p l a c e d u r i n g o ff i c e h o u r s o r b y

agreement.

(2) Traders shall keep all trade records, including stocks, and

shall report to the competent authority any such information or data

as may be required in terms of this Order. Such trade records shall

be kept for a period of five years unless long periods of retention

are stipulated under other legal provisions other than this Order.

(1)

It shall be a breach of this Order if a person

(a) does not submit or submits incorrectly or incompletely

any data or information as may be required by the

competent authority in terms of this Order;

(b) obtains a certificate through false or incomplete

information;

(c) is responsible for the arrival in Malta of goods listed in

the Annex without a marketing certificate when such a

certificate is necessary in terms of this Order;

(d) purchases from other Member States of the European

Union or from outside the Community, without the

necessary marketing certificate, goods listed in the

Annex for which a certificate is necessary;

(e) fails to keep records as required by this Order.

(2)

Whosoever is in breach of this Order shall be subject to an

administrative fine which shall, for a first offence, be not less than

two thousand and three hundred and twenty-nine euro and thirty-

seven cents (€2,329.37) and not more than eleven thousand and six

hundred and forty-six euro and eighty-seven cents (€11,646.87) and

to a further administrative fine of not less than fifty-eight euro and

twenty-three cents (€58.23) and not more than one hundred and

sixteen euro and forty-seven cents (€116.47) for each subsequent

day that the offence continues. For subsequent offences, traders

shall be liable to an administrative fine of not less than eleven

thousand and six hundred and forty-six euro and eighty-seven cents

(€11,646.87) and not more than twenty-three thousand and two

hundred and ninety-three euro and seventy-three cents (€23,293.73)

and to a further administrative fine of not less than one hundred and

sixteen euro and forty-seven cents (€116.47) and not more than two

hundred and thirty-two euro and ninety-four cents (€232.94) for

each subsequent day that the offence continues.

(3) In determining the amount of an administration fine regard

s h a l l b e h a d , i n p a r t i c u l a r, t o t h e n a t u r e a n d e x t e n t o f t h e

infringement, its duration and its impact on the market.

(1) Before imposing an administrative fine, the competent

authority shall write to the person concerned warning him that an

administrative fine may be imposed, and inform him of the amount

of the fine that may be imposed and the specific reasons for which

it may be imposed, and granting such person a period of not less

than ten days as the competent authority may determine to be

appropriate in the circumstances, during which period such person

may make his submissions to the competent authority.

(2) Before deciding whether to impose an administrative fine,

the competent authority shall consider the submissions, if any,

made to it under subarticle (1).

(3) If after the lapse of the period during which submissions

may be made in accordance with subarticle (1), the competent

authority considers that such person has not given any valid proof

or reasons to demonstrate that the administrative fine referred to in

subarticle (1) should not be imposed, the competent authority shall

impose an administrative fine in accordance with this Order and

shall give notice in writing to such person specifying the nature of

the infringement and the amount of the administrative fine due.

(4) The notice as referred to in subarticle (3) shall, without

prejudice to the right of appeal under article 13(2), upon the service

of a copy thereof by means of a judicial act on the person indicated

in the notice, constitute an executive title for all effects and the

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

Organization and Civil Procedure.

(5) Notwithstanding the provisions of article 256(2) of the

Code of Organization and Civil Procedure, the executive title

referred to in subarticle (4) shall not be enforceable before the

lapse of thirty days from the service of the judicial act therein

referred to

Provided that where an appeal against an administrative

fine in accordance with article 13(2) has been filed, the said

executive title shall not be enforceable unless the Court of Appeal

rejects the appeal or unless the proceedings on appeal are deserted

or otherwise discontinued without final judgement

Provided further that where the Court of Appeal confirms

or varies the amount of the administrative fine, the executive title

referred to in subarticle (4) shall apply up to the amount of the fine

as confirmed or varied by the Court of Appeal and shall be

enforceable after the judgement of the said Court.

Where a breach of this Order mentioned in article 9(1) is

com mitted by a body corporate and is proved to have been

committed with the consent or involvement of, or attributable to

any gross negligence on the part of a person being a director,

manager, secretary or other officer, however so described, of the

body corporate or a person who was purporting to act in any such

capacity, that person, as well as the body corporate, shall be liable

to be proceeded against and punished as if he was responsible for

the said infringement.

There shall be a right of appeal to the Court of Appeal from

decisions of the competent authority to impose an administrative

fine in terms of this Order.

(1) The procedure to be followed in relation to appeals

against administrative fines imposed by the competent authority

shall be regulated by the provisions of this article.

(2) A person who is notified with a judicial act referred to in

article 10 (4) m ay, within thirty days from the date of such

notification, lodge an appeal before the Court of Appeal objecting

to the administrative fine so fixed.

(3) The Court of Appeal shall not annul an administrative fine

as aforesaid unless such fine cannot at law be imposed in the

circumstances of the case or cannot at law be fixed in the amount

established by the competent authority, due account being given to

the principle of proportionality.

(4) The Court of Appeal shall without delay set down the

appeal for hearing at an early date, which date shall in no case be

later than forty days from the date of the service of the appeal on

the competent authority.

(5) The appeal, and the notification of the date fixed for

hearing shall be notified to the competent authority without delay,

and the competent authority shall file its reply thereto within

twenty days from the date of the notification of the appeal.

(6) The decision of the Court of Appeal upon an appeal

referred to in subarticle (2), confirming the imposition of a fine

established by the competent authority or reducing any such fine,

shall render such fine a res judicata.

(1) In determining an appeal, the Court of Appeal shall

take into account the merits of the case and may, in whole or in

part, confirm or annul the decision appealed from, giving reasons

for its decision.

(2) The provisions of the Code of Organization and Civil

Procedure regarding the hearing of appeals shall apply to any

appeal filed under this Order.

Where in proceedings relating to any alleged breach of this

Order any dispute arises as to whether any trader was the importer

into Malta of any goods to which this order applies, any trader

found in possession of the said goods shall be presumed to be the

importer thereof unless he provides proof to the contrary.

IMPLEMENTATION OF THE SAFEGUARD CLAUSE

ANNEX

Category of Goods to which the Order applies

Goods

Milk (pasteurised, sterilised, ultra high temperature treated),

Yoghurt, Ricotta cheese

Meat in terms of Chapter 0203 and Chapter 1602 of the Common

Customs Tariff

Meat in terms of Chapter 0207 and Chapter 1602 of the Common

Customs Tariff

Chicken eggs for human consumption in terms of Chapters 0407,

0408 of the Common Customs Tariff

Wine products in terms of Chapter 2204 of the Common Customs

Tariff

Tomatoes and tomato products in terms of Chapter 0702 and Chapters

2002, 2009, 2103, 2005 of the Common Customs Tariff

Other fruit and vegetables with important domestic production