GAMING COMPLIANCE AND ENFORCEMENT REGULATIONS

SUBSIDIARY LEGISLATION 583.06

GAMING COMPLIANCE AND

ENFORCEMENT REGULATIONS

20th July, 2018

LEGAL NOTICE 244 of 2018.

The title of these regulations is the Gaming Compliance

and Enforcement Regulations.

(1)

In these regulations, save as provided in sub-

regulations (2) and (3), all words and phrases shall have the same

meaning as prescribed in the Gaming Definitions Regulations.

(2) In these regulations, unless the context otherwise

requires, "the Act" means the Gaming Act.

(3) All other terms used in these regulations shall have the

same meaning attributed to them in the Act.

Part II

General Compliance

(1)

An authorised person shall, throughout the term

of an authorisation, continuously fulfil and comply with all relevant

requirements and be responsible for all obligations imposed by all

applicable regulatory instruments.

(2) An authorised person shall, throughout the term of an

authorisation, comply with the policies and procedures which must

be notified to the Authority in terms of any regulatory instrument,

and any breach of such policies and procedures shall be tantamount to

a breach of a regulatory instrument.

The Authority may require any authorised person to take

actions, implement procedures or systems, to make submissions, to

provide information, reports, compliance certificates and, or any other

evidence of compliance to the Authority, on a regular or ad hoc basis,

to demonstrate the authorised person’s compliance with all applicable

regulatory instruments

Provided that only compliance certificates issued by

certifiers and auditors approved by the Authority shall be recognised

by the Authority.

The Authority may require any authorised person to

undergo a compliance audit, on a regular or ad hoc basis, in

accordance with any binding instrument that may be issued by the

Authority

Provided that only compliance audits carried out by

auditors approved by the Authority shall be recognised by the

Authority.

Part III

Compliance Review

(1)

The Authority may, where it deems necessary,

initiate a review of all or part of the conduct and, or operations of an

authorised person.

(2) If, in conducting such review, the Authority discovers

conduct and, or operations which are not, or may not be, in accordance

with the applicable regulatory instruments, it shall notify the

authorised person of this fact, giving such authorised person a

reasonable time to make any relevant submissions

Provided that if the authorised person fails to make

submissions within the allocated time, the Authority shall reach a

decision based on the information available to it

Provided further that in conducting such review, the

Authority may also request any information from third parties that

directly or indirectly provide one or more services to, or obtain one or

more services from, the authorised person that it deems relevant,

without requiring the consent of the authorised person and with or

without informing the authorised person.

(3) If the authorised person fails to make submissions or, in

its submissions, does not address any concerns which the Authority

may have, the Authority may initiate a formal investigation and, or

take such other measures, including enforcement measures, as it may

deem appropriate.

Part IV

Formal Investigation

(1)

When the Authority has reason to suspect that an

authorised person is conducting its affairs in breach of any applicable

regulatory instrument or is otherwise no longer suitable to hold such

authorisation, it shall initiate a formal investigation of such

authorised person.

(2) The authorised person shall be informed of the

investigation and the reasons for which it was initiated

Provided that where the Authority reasonably believes

that informing the authorised person of such investigation may

prejudice the investigation or any possible outcome thereof, or is

precluded from informing the authorised person by virtue of any

applicable law, it may carry out the investigation without informing

the authorised person.

(3) In conducting such investigation, the Authority shall be

empowered to request and, or access any and all information,

documents and other things from the authorised person or from third

parties that directly or indirectly provide one or more services to, or

obtain one or more services from, the authorised person, that it deems

relevant.

Provided that where the Authority requests information,

documents or any other things from a third party, it shall not require

the consent of the authorised person to which the information,

documents or other things relate.

Provided further that, where such information, documents

and other things constitute personal data, the Authority shall only

request and, or access the personal data which it deems to be relevant

to the investigation.

(4) It shall be an offence against the Act for the authorised

person not to provide the Authority with any information, documents

and, or other things which the Authority may require, or to otherwise

hinder the Authority’s investigation or to neglect to collaborate

therewith. In any such case it shall also be lawful for the Authority to

make a decision based on the information available to it.

(5) When the Authority’s investigation is concluded, the

Authority shall provide the authorised person with a report thereon

which shall include

(a)

the reason or reasons for which the investigation

was initiated;

(b)

the

breaches

of

applicable

regulatory

GAMING COMPLIANCE AND ENFORCEMENT

instruments by the authorised person, if any, and the evidence

proving such breaches; and

(c)

the enforcement measures which the Authority

has deemed it fit to take in the circumstances, if any

Provided that the Authority may withhold any or all of the

above information if disclosing them to the authorised person may

prejudice the interests of players or of any other person, or would

amount to a breach of any applicable law.

(6) The authorised person may contest the findings in such

report within twenty days from the date of notification thereof.

(7) Upon receiving the authorised person’s contestation, if

any, or upon the lapse of twenty days from the date of notification of

the Authority’s report, whichever is earlier, the Authority shall

communicate to the authorised person its final decision on the matter,

confirming, revoking or amending the report.

Part V

Enforcement Measures

(1)

The enforcement measures which the Authority

may take are the following

(a)

an order, howsoever named, directing the

authorised person to do, or to refrain from doing, something or

to otherwise correct its conduct and, or operations; and, or

(b)

a warning, howsoever named, directing the

authorised person to do, or refrain from doing, something in the

future; and, or

(c)

adding, removing or amending conditions

attached to the authorisation held by the relevant authorised

person; and, or

(d)

in the case of a breach which is not an offence

against the Act, imposing an administrative penalty in terms of

article 25(3) of the Act; and, or

(e)

in the case of a breach which is an offence against

the Act, and without prejudice to article 25(1) of the Act, filing

a report to the Executive Police for the commencement of

criminal proceedings; and, or

(f)

suspending or cancelling the licence, in terms of

regulations 9 or 10, as the case may be

Provided that the enforcement sanctions mentioned in this

sub-regulation shall not be made public unless the Authority

determines that this is in the public interest or if the Authority is

obliged to make such sanction public in terms of any other law

Provided further that any measure mentioned in

paragraph (f) shall be made public.

(2) The Authority may exercise an enforcement measure

solely following the conclusion of a compliance review and, or a

formal investigation

Provided that the Authority may, in exceptional

circumstances and in the interest of players or on grounds of public

policy, public security or the safeguarding of the reputation of Malta,

exercise any enforcement measures which it deems appropriate prior

to the performance of the review and, or investigation, or following

the conclusion thereof but prior to the lapse of the time within which

the authorised person may contest the findings.

(3) Without prejudice to the above and to any provision of

the Act or any other law, in the case of the offence listed in paragraph

(a) of the Third Schedule to the Act, the Authority may, whether the

person in breach is an authorised person or otherwise, impose an

administrative fine on the person in breach and, or give any other

direction it may deem fit as an alternative to criminal proceedings in

terms of article 25(1) of the Act

Provided that any person in breach of paragraph (a) of

the Third Schedule to the Act may request that the above enforcement

measure be taken in his regard, and the Authority shall take such

measure as an alternative to criminal proceedings unless it is

reasonably satisfied that criminal proceedings are more appropriate,

having regard to the circumstances of the case

Provided further that for the avoidance of doubt, the

Authority’s decision not to impose an administrative fine on the

person in breach as an alternative to criminal proceedings shall be

considered to be an administrative act subject to an appeal in terms of

article 43 of the Act.

(4) Without prejudice to the foregoing, the Authority shall

also be empowered to keep and publish a list of operators which are

not compliant with the applicable laws and, or regulatory

instruments

Provided that any operator included on such list shall be

given the opportunity to make submissions to the Authority,

clarifying and, or addressing its lack of compliance, in order for the

Authority to remove such operator from the list

Provided further that should the Authority refuse,

further to remonstrations from such operator, to remove the operator

GAMING COMPLIANCE AND ENFORCEMENT

from such list, the refusal shall be deemed to constitute an

administrative act which may be appealed from in terms of article 43

of the Act.

(1)

The Authority shall have the power to suspend an

authorisation in the following instances

(a)

the Authority is satisfied that the authorised

person, or a person holding a direct or indirect interest in the

authorised person, or a person holding a key function in the

authorised person, is not, or has ceased to be, in the opinion of

the Authority, fit and proper to hold such authorisation;

(b)

the authorised person has failed to comply with an

order issued by the Authority;

(c)

the authorised person has failed to comply with

one or more applicable obligations in terms of any regulatory

instrument or any other applicable law of Malta;

(d)

the authorised person has failed to discharge

financial commitments for its operations or the Authority has

reason to believe that such failure is imminent;

(e)

in the case of a natural person, the authorised

person becomes incapable of exercising his or her functions as

an authorised person due to physical and, or mental incapacity

or for any other reason;

(f)

the authorised person is bankrupt, insolvent or is

being wound up;

(g)

the authorised person applies for an order, or is

compelled by any means or for any reason, to discontinue or to

wind up its operations;

(h)

the authorised person is in breach of the laws or

regulations at any time in force for the prevention of money

laundering and financing of terrorism;

(i)

the authorised person has failed to meet

commitments to players in a timely manner, or the Authority has

reason to believe that such failure is imminent;

(j)

circumstances arise which, had they been present

and known to the Authority at the time of issuance of the

authorisation, would have led the Authority not to issue such

authorisation;

(k)

the authorised person has failed to seek the prior

approval of the Authority of any material change where such

prior approval is required in terms of any regulatory

instrument, or has failed to notify the Authority of such

material change where such notification is required;

(l)

the authorised person has failed to pay in a

timely manner all amounts due to the Authority; or

(m)

the Authority, in its sole discretion, has

determined that there is material and sufficient reason for

suspending the authorisation.

(2) (a)

Where a ground for suspension of the

authorisation arises in terms of sub-regulation (1), the Authority

shall, by notice in writing, give the authorised person an amount of

time, being not less than twenty days, to show cause why the

authorisation should not be suspended.

(b)

Where a ground for suspension of the

authorisation in terms of sub-regulation (1) is deemed to exist

following a formal investigation and the authorised person has

already been granted a period of time to contest the findings of such

investigation in terms of regulation 7(6), the time period mentioned

in paragraph (a) shall not be applicable

Provided that, notwithstanding the above and any other

provision in any regulatory instrument or any other law, the Authority

shall have the right to suspend an authorisation with immediate

effect, by written notice to the authorised person and without giving

the authorised person time to show cause why the authorisation

should not be suspended, where it determines that there exist

exceptional grounds for doing so, including but not limited to

(i)

when the Authority becomes aware that the

authorisation was obtained by one or more materially false or

misleading representations or in some other improper way; or

(ii)

when the authorised person

presents

an

imminent threat to the reputation of Malta; or

(iii)

when the authorised person presents an

imminent threat of serious prejudice to the interests of players

or to public or national interest.

(1)

The Authority shall have the power to cancel an

authorisation in the following instances

(a)

one of the grounds for suspension envisaged in

regulation 9 arises and the Authority, in its sole discretion,

determines that cancellation of the authorisation is the most

appropriate measure;

(b)

the Authority has suspended the authorisation in

terms of regulation 9 and, in the circumstances of the case, the

Authority becomes satisfied that the matter which has led to the

suspension cannot be rectified;

(c)

the authorisation has been voluntarily suspended

for more than six (6) months and the authorised person has not

provided a plan outlining when it expects the authorisation to be

reactivated, to the satisfaction of the Authority; or

(d)

the authorised person continues to provide a

gaming service and, or a gaming supply and, or a key function,

notwithstanding the suspension of the authorisation by the

Authority in terms of regulation 9.

(2) (a)

Where a ground for cancellation of the

authorisation in terms of sub-regulation (1) arises the Authority shall,

by notice in writing, give the authorised person an amount of time,

being not less than twenty days, to show cause why the authorisation

should not be cancelled.

(b)

Where a ground for cancellation of the

authorisation in terms of sub-regulation (1) is deemed to exist

following a formal investigation and the authorised person has already

been granted a period of time to contest the findings of such

investigation in terms of regulation 7(6), the time period mentioned in

paragraph (a) shall not be applicable

Provided that, notwithstanding the above and any other

provision in any regulatory instrument or any other law, the Authority

shall have the right to cancel an authorisation with immediate effect,

by written notice to the authorised person and without giving the

authorised person time to show cause why the authorisation should not

be cancelled, on grounds of national interest or to safeguard the

reputation of Malta, or if the authorisation was obtained by one or

more materially false or misleading representations or in some other

improper way.

(1)

The suspension or cancellation of the

authorisation shall not affect any liability of the authorisation holder

for anything done or omitted to be done, or for any amounts due which

may have already accrued, before the date of suspension or

cancellation.

(2) Without prejudice to any provision in the Gaming Licence

Fees Regulations, the liability of the authorised person to pay any

applicable compliance contribution, gaming devices levy and, or

gaming tax shall stop accruing during any period in which the

authorisation is suspended

Provided that the authorised person shall have no right to

recover any applicable dues paid in advance.

Notices of suspension or cancellation shall be served on

the authorised person in accordance with article 53 of the Act

Provided that where the authorised person is notified by

electronic means, if the Authority does not have evidence that the

notice was received by the authorised person within twenty-four

hours, the Authority may issue the suspension or cancellation notice

on its website and the authorised person shall be considered to be

notified immediately as soon as the notice is visible on such website

Provided further that where the suspension or

cancellation is issued with immediate effect in terms of the proviso to

regulation 9(2) or the proviso to regulation 10(2), the Authority may

publish such notice prior to the lapse of such twenty-four hours and

the authorised person shall be considered to be notified immediately

as soon as the notice is visible on the website.

Part VI

Powers of the Authority

(1)

Without prejudice to anything contained in any

other regulatory instrument, an officer of the Authority shall, for the

purpose of ascertaining that all applicable regulatory instruments are

being complied with, have the following powers

(a)

to inspect, test and, or examine any equipment,

software or other thing being used in the provision of a gaming

service, a gaming supply, or a key function;

(b)

to remove any equipment, software or other

thing to another place or premises approved and, or designated

by the Authority, for the purpose of an inspection and, or

examination;

(c)

to inspect any premises, whether authorised by

the Authority or otherwise, in which gaming is taking place or

in which he reasonably suspects that gaming is taking place, or

in which there is, or he reasonably suspects that there is, any

equipment, software or any other thing related to such gaming;

(d)

to demand information or the production of any

document or other thing related to gaming or which he

reasonably suspects relates to gaming for the purpose of an

inspection and, or examination, including but not limited to

requiring any person found within any premises in which

gaming is taking place to produce identification documents

and, or evidence of his age;

(e)

to remove any document or other thing produced

as a result of a request under the preceding paragraph or

discovered during an inspection for the purpose of examining

GAMING COMPLIANCE AND ENFORCEMENT

it and, or making copies or taking extracts or otherwise

documenting its existence and, or characteristics;

(f)

to play a game or games for the purpose of

confirming whether such game requires authorisation in terms

of the Act or any other regulatory instrument;

(g)

to play a game or games which are authorised by

the Authority to be offered for the purpose of confirming

whether such game is compliant with the Act and any other

applicable regulatory instruments;

(h)

to demand information and, or the production of

any document or other thing, from any person whom the officer

of the Authority reasonably suspects to be conducting gaming

without the necessary authorisation, or aiding or abetting

gaming without the necessary authorisation;

(i)

to access, retrieve and, or make extracts or copies

of any data, information and, or any document or other thing

pertaining to an authorised person, including but not limited to

surveillance footage and any recording by whatever means of

video, audio and, or any other information, wherever such data,

information, document or other thing is located and, or stored;

(j)

to call to his assistance for the purpose of carrying

out his functions -

(i)

another officer of the Authority;

(ii) any member of the Police Force, any local

council, any department of Government or any agency of

Government, or any other public authority, whether local

or foreign;

(k)

to do all such things as may be ancillary or

conducive to his powers and duties under the Act, these

regulations and any other regulatory instrument or any other

law.

Provided that, in exercising any of the powers

under this provision, the officer of the Authority shall respect the

principles of data minimisation and proportionality as defined

within data protection legislation. Furthermore, the Authority

shall not retain any copies or extracts beyond what is necessary in

the exercise of the relevant power.

(2) Whenever an officer of the Authority removes equipment,

software, document or any other thing from any premises or place in

terms of sub-regulation (1), the Authority shall provide a receipt for it

to the person who owns or is in charge of the premises or place and,

subject to sub-regulation (3), shall promptly return the equipment,

software, document or other thing to the premises or other place after

completion of the inspection, examination, testing, making of copies

or taking of extracts, as the case may be.

(3) An officer of the Authority may, for the purposes of

evidence, detain for such time as may be required any equipment,

software, document or other thing that the officer discovers while

acting in the exercise of his powers and which he believes, on

reasonable grounds, may afford evidence of a violation of or a non-

compliance with anything contained in the Act or any other

regulatory instrument.

(4) Copies of or extracts from documents or other things

removed from any premises or other place by an officer of the

Authority, and certified by an officer of the Authority making the

copies or taking the extracts as being true copies of or extracts from

the originals, are admissible in evidence to the same extent as, and

have the same probatory value as, the documents or things of which

they are copies or from which they are extracts.

(1)

The person who owns or is in charge of any

place or premises entered by an officer of the Authority in the

exercise of his powers, and any employee or agent of such person

shall give all reasonable assistance to the officer of the Authority to

enable the officer to exercise his powers in terms of the Act and these

regulations, and shall furnish the officer with such equipment,

software, records, documents, information or other thing as the

officer may request.

(2) No person shall hinder, obstruct or otherwise interfere

with, or knowingly make a false, incomplete or misleading statement,

either orally or in writing, or provide or produce a false document or

other thing to, an officer of the Authority who is carrying out his

duties and functions

Provided that any such false, incomplete or misleading

statement shall be deemed to be a false, incomplete or misleading

statement made to the Authority in terms of article 34 of the Act.