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Maltese Laws |
MALTA FINANCIAL SERVICES AUTHORITY ACT
To establish an Authority for Financial Services from within Malta, to regulate such activities and to provide for matters ancillary or incidental thereto or connected therewith.
20th January, 1989;
30th June, 1989
ACT XXXIV of 1988, as amended by Act XV of 1989; Legal Notice 167 of 1989; Legal Notice 79 of 1990; Act XXXI of 1990; Legal Notice 183 of
1990; Acts XIII of 1994, XXV of 1995, XVII of 2002, IV of 2003, XIII of
2004, XII of 2006 and XX of 2007; Legal Notice 424 of 2007; and Acts III
of 2009, II and XIX of 2010, and X of 2011.
Substituted by: XIII.1994.2. Amended by: XVII. 2002.103.
Authority Act.
''Authority'' means the M a lta Fin a nci a l Serv ices Au th or it y established by article 3;
' ' B oard o f G o v e rn ors' ' m e an s t h e Boar d of Go vern or s o f t h e
Authority established by article 6;
' ' Board of Man a gem e nt and Resources'' means the Board established by article 11;
''Chief Operations Officer'' means the Chairman of the Board of
Management and Resources;
''Consumer Complaints Manager'' means the person appointed in terms of article 20;
'' Director-General'' means the Chairman of the Supervisory
Council established by article 10;
''Co-Ordination Committee'' means the Committee established by article 9;
''financial year'' means a period of twelve months beginning on the 1st day of January and ending on the 31st day
of December of each year;
''financial services'' means the business of credit and financial i n stitu tion s , the busin ess of insurance and
the act i vit i es of insurance intermediaries, the provision of investment services and coll ective investment schem es, pensions
and retirement funds, regulated markets, central securities depositories and such other areas of activity or services as may be
placed under the supervisory and regulatory competence of the Authority by the Minister or by any other law;
''Minister'' means the Minister responsible for Finance;
''person'' includes any entity corporate or unincorporated which may hold a licence or other authorisation issued
by the Authority or
Short title. Amended by: XIII. 1994.2; XVII. 2002.103.
Interpretation. Amended by: XV. 1989.2; XXXI. 1990. 2; XIII. 1994.3; XX. 1994.4. Substituted by: XVII. 2002.105. Amended by:
IV. 2003.16; XX. 2007.3;
XIX. 2010.3.
Cap. 386.
which falls within the supervisory or regulatory authority of the
Authority;
''prescribed'' means prescribed under this Act;
''Registrar of Companies'' means the person appointed pursuant to article 400 of the Companies Act and who shall be a senior official of the Authority;
''Supervisory Council'' means the Council appointed in terms of article 10.
Establishment of the Authority. Amended by: XIII.1994.5. Substituted by: XVII. 2002.106.
Financial Services Authority.
(2) The Authority shall be a body corporate having a distinct legal personal ity and cap a b l e of enteri ng in to co nt racts,
of acquiring and disposing of property of any kind for the purposes of its functions under this Act or any other law, of suing and
of being sued, and of doing all such things and entering into all transactions as are incidental to or conducive to the exercise
or performance of its functions aforesaid.
Functions of the Authority. Amended by: XIII.1994.6. Substituted by: XVII. 2002.106. Amended by: XX. 2007.4;
XIX. 2010.4.
(a) to regulate, monitor and supervise financial services in
Malta;
(b) to promote the general interests and legitimate expectations of consumers of financial services, and to promote
fair competition practices and consumer choice in financial services;
(c) to monitor and keep under review trading and business practices relating to the supply of financial services to private and
other persons, and to provide relevant information and guidance to the public;
(d) to monitor the working and enforcement of laws that directly or indirectly affect consumer of financial services in Malta,
and to undertake or commission such study, research or investigation which it may deem necessary in this regard;
(e) to advise the Government generally on the formulation of policies in the field of financial services, and to make recommendations
to Government on action which in the opinion of the Authority would be expedient in relation to matters falling
within the regulatory and supervisory functions of the Authority;
(f) to investigate allegations of practices and activities detrimental to consumers of financial services, and generally
to keep under review trading practices relating to the provision of financial services and to identify, and take measures
to suppress and prevent, any practices which may be unfair, harmful or otherwise detrimental to consumers
of financial
services;
(g) to ensure high standards of conduct and management throughout the financial system;
(h) to perform such other functions or duties as may be assigned to it under this Act or any other law.
(2) For the better performance of its functions, the Authority shall collaborate with other local and foreign bodies, Government
departments, international organisations and other entities which exercise regulatory, supervisory or licensing powers under any
law in Malta or abroad or which are otherwise engaged in overseeing or monitoring areas or activities in the financial services sector
and
t h e regi st rat i on of commerci a l part nership s , an d t o make arrangements for the mutual exchange of information and for
other
forms of assistance in regulatory and supervisory matters.
(3) The Authority shall have the power to impose such fees as may be prescribed, and to levy charges in respect of any request,
application or other matter that may be submitted to it under this or any other Act including the fees and charges in respect of
any permission, licence, authorisation, exemption or other benefit, as well as fees and charges in respect of its regulatory, supervisory
or investigative functions under this or any other law.
(4) In exercising its functions and powers assigned to it under this Act or any other Act, the Authority shall be obliged to have
regard to Malta’s in ternatio nal com mitm ents inclu d ing i t s obligations under the Treaty within the meaning of the European Union Act. In this Act, ''Malta’s international commitments'' shall mean Malta’s commitments, responsibilities and obligations
arising out of membership of the European Union and membership of, or affi l ia ti on to , or re la ti on sh ip wi th , an y in
t er na ti on al , gl ob al or regional organisations or grouping of countries or out of any treaty, con v en ti on o r ot he r in
tern ati o nal agreement, however calle d, wheth e r b ilateral, m u lt ilateral i n clud ing Memo rand a of Understanding,
to which Malta is a party.
Cap. 460.
(2) It shall be the duty of the organs of the Authority to provide t h e Board of Gov e rn ors wit h all such inf o rmati on as m a y be required for the proper perfor m a n ce of i t s fun c ti on s an d in particular to enable it to ensure that its policies are being properly carried out.
Licence considered to be a concession. Added by:
XIX. 2010.5.
The Authority. Amended by: XV. 1989. 3; XIII.1994.8. Substituted by: XVII. 2002.106. Amended by:
IV. 2003.16.
The Board of Governors. Amended by: XIII.1994.9. Substituted by: XVII. 2002.106. Amended by:
IV. 2003.10; X. 2011.3.
(2) The Board of Governors shall consist of the following: (a) a Chairman, appointed by the Prime Minister;
(b) six other members appointed by the Prime Minister
from among persons who have distinguished themselves in business, financial activities, the professions,
the public services or academic affairs
and who in his opinion are able to represent the points of view of the industry and consumers of financial services.
(3) A person shall not be eligible to be appointed as Chairman or as a member of the Board of Governors or of any other organ of
the Authority, or to hold any office with the Authority, if he is the holder of a licence or other authorisation issued by the Authority
or otherwise falls under the regulatory or supervisory functions of the Authority, or is a director, an officer or employee of such
holder or other such person.
(4) Where the Chairman is absent or is unable to exercise the functions and powers of his office and the Prime Minister has not
appointed another person to act as chairman during the period of absence or disability the remaining members of the Board of Governors
shall designate one of the other members of the Board to carry out the functions of the chairman during each period.
(5) The Chairman and the members of the Board of Governors shall hold office for such term, being a period of not more than five
years, as may be specified in the letter of appointment, and shall be eligible for reappointment; and shall receive such remuneration
as the Minister may from time to time, determine.
(6) (a) Without prejudice to the provisions of subarticle (3) a person shall not be eligible to be appointed or to hold offic e a s C h
airm an or as a me mbe r of the B o ard of Governors if he -
(i) is a member of the House of Representatives; or
(ii) is legally incapacitated or interdicted; or
(iii) has been declared bankrupt or has made a composition or arrangement with his creditors; or
(iv) has contravened any provision made by or under any law appearing to be designed for protecting members of the public against
financial loss due to dishonesty, incompetence or malpractice concerned in the provision of financial services or in the
management of companies; or
(v) has engaged in any business practice appearing to the Prime Minister to be deceitful or
oppressive or otherwise improper (whether unlawful or otherwise) or which otherwise reflects discredit on his
method of conducting business or professional activities; or
(vi) has engaged in or been associated with any other business practice or otherwise conducted himself in such a manner
as to cast doubt on his competence or soundness of judgement; or
(vii) has a financial or other interest as is likely to prejudicially affect the discharge by him of his functions; or
(viii) is otherwise not a fit and proper person to hold that office.
(b) In determining whether a person is a fit and proper person, the Prime Minister shall have regard to that person’s probity,
to his competence and soundness of judgement for fulfilling the responsibilities of that office, to the diligence with which
he is fulfilling or is likely to fulfil those responsibilities and to whether the interests of any person are, or are likely to
be, in any way threatened by his holding that office.
(c) Any person whom the Prime Minister has appointed or proposes to appoint as a member of the Board of Governors shall,
whenever requested by the Prime Minister to do so, furnish to him such information as the Prime Minister considers
necessary for the performance of his duties under paragraphs (a) and (b).
(d) A member of the Board may be relieved of office by the Prime Minister on the ground of inability to perform the functions
of his office, whether due to infirmity of mind or of body, or of misbehaviour; and for the purposes of this paragraph
repeated and unjustified non-attendance of meetings may be deemed to amount to misbehaviour.
(e) Any member of the Board of Governors, may resign his office by letter addressed to the Prime Minister.
(f) The appointment of any person as a member of the Board of Governors and the termination of office or resignation of any such
person including the reason for such termination or resignation, as applicable, shall be notified in the Gazette.
(2) The Board of Governors may act notwithstanding any vacancy amongst its members provided there is a quorum consisting of not less than three members present at the meeting.
Meetings of the Board of Governors. Amended by: XIII.1994.10. Substituted by: XVII. 2002.106.
(3) The meeting of the Board of Governors shall be chaired by the Chairman, or in his absence by the acting Chairman, or by a member
elected for the particular meeting by the other members present at the meeting.
(4) Decisions of the Board of Governors shall be taken by a m ajority of votes of the members present, and the Chairman or other
person chairing the meeting shall have an original vote and in the event of an equality of votes a second or casting vote.
(5) (a) The Board of Governors shall designate one of the officers of the Authority to act as Secreta r y to the Board of Governors
for such period and as the Board of Governors shall deem appropriate.
(b) It shall be the duty of the Secretary to make the necessary preparations for the meetings of the Board of Governors
and to keep minutes of those meetings.
(6) Any participation in the proceedings of the Board of Governors by a person not entitled so to do, shall not invalidate
the proceedings.
(7) Subject to the foregoing provisions of this article, the Board of Governors may regulate its own proceedings.
(8) The Board may invite any person and may require any officer or employee of the Authority to attend a m eeting of the
Board of Governors and to take part in the discussions.
Board of Governors when acting as the Listing Authority. Added by:
XIX. 2010.6.
Cap. 345.
Cap. 345.
7A. (1) The Board of Governors shall also act as the Listing Authority established under the Financial Markets Act and shall p e rform
the functio ns set out in P a rt II I of th e sai d Financial Markets Act.
(2) The Board of Governors when acting as the Listing Authority may delegate in writing any of its functions and powers,
including the power to take decisions on behalf of the Board, on such matters and subject to such conditions and modalities as may
be specified in the delegation, to the chairman or one or more of the members of the Board, as may be specified. Any decision so
taken sh all be rat ified by th e o ther m embers of the Board at the first opportunity.
(3) The Board of Governors when acting as the Listing Authority may delegate in writing any of its decisions relating
to th e adm i ssib ility to listing to any one or mor e o f the Listing Committees established under the Financial Markets Act. Any such del e g a ti on sh all b e sub j ect to su ch term s, co nd it io ns an d restrictions as the Board of Governors may think
fit.
Legal and judicial representation. Amended by: XIII.1994.11. Substituted by: XVII. 2002.106.
Provided that the Board of Governors may from time to time appoint any one or more of its members, or any one or more of
the officers or employees of the Authority, to appear in the name and on behalf of the Authority in any judicial proceedings or on
any act, contract, instrument or other document whatsoever, or in any class or category thereof.
(2) The Co-ordination Committee shall consist of the Chairman of the Board of Governors, who shall preside thereat, the Director-
General, the Chief Operations Officer of the Authority, the Director of the Legal Office and the Registrar of Companies.
(3) The Board of Governors shall designate one of the officers from the Legal Office to act as Secretary to the Co-ordination
Committee for such period and under such terms as the Board of Governors shall deem appropriate.
(4) It shall be the duty of the Secretary to make the necessary preparations for the meetings of the Co-ordination Committee and
to keep minutes of those meetings.
(5) The provisions of article 7 shall, in so far as applicable, apply to the meetings of the Co-ordination Committee as they apply
to the meetings of the Board of Governors.
The Co-ordination Committee. Amended by: XV.1989.4; XIII.1994.12,13. Substituted by: XVII. 2002.106. Amended by:
IV. 2003.16; XIX. 2010.7.
(2) The Supervisory Council shall consist of the Director- General, who shall preside thereat, and of each of the Directors
responsible respectively within the Authority for Authorisation, the supervision of Banking, Insurance and Pensions, Securities
and Markets, for Regulatory Development and for any other area of financial services under the regulatory supervision of the Authority
as may be determined by the Board of Governors. The Supervisory Council may, with the approval of the Board of Governors, from time
to time make internal arrangements to authorise one or more of the aforementioned Di rect ors to si gn a licence, category of li
ce nc es or an y o t he r fo rm o f a u t h ori s at i o n as i t m a y de em appropriate.
(3) The Supervisory Council shall designate one of the officers o f th e A u tho r ity en gaged in an y of its fu nct i ons menti
oned i n subarticle (1) as its Secretary for such period and under such terms as the Board of Governors shall deem appropriate.
(4) It shall be the duty of the Secretary to make the necessary preparation for the meetings of the Supervisory Council and to
keep minutes of those meetings.
The Supervisory Council. Amended by: XIII.1994.12,14. Substituted by: XVII. 2002.106. Amended by: XIX. 2010.8.
(5) The provisions of article 7 shall, insofar as applicable, apply to the meetings of the Supervisory Council as they apply to the meetings of the Board of Governors.
The Board of Management and Resources. Amended by: XV.1989. 5; XXXI. 1990. 3; XIII.1994.12. Substituted by: XVII. 2002.106. Amended by:
XIX. 2010.9.
(2) The Chief Operations Officer shall preside over the Board of Management and Resources.
(3) The Board of Management and Resources shall designate one of the officers of the Authority engaged in any of the activities
m ent io ned in sub art icl e ( 1) , to act as secretary of the B oard of Management and Resources for such period and under such
terms as the Board of Governors shall deem appropriate.
(4) It shall be the duty of the Secretary to make the necessary preparations for the meetings of the Board and to keep minutes
of those meetings.
(5) The provisions of article 7 shall, insofar as applicable, apply to the meetings of the Board of Management and Resources
as they apply to the meetings of the Board of Governors.
The Legal Office. Amended by: XIII.1994.12,16. Substituted by: XVII. 2002.106.
Officers and employees of the Authority. Amended by: XIII.1994.17. Substituted by: XVII. 2002.106. Amended by:
IV. 2003.16; XIX. 2010.10.
Cap. 9. (2) For the purposes of the Criminal Code and of any provision of penal nature in any other law, the members of the Authority, and every officer or employee thereof, shall be deemed to be public officers.
Dissemination of information. Amended by: XIII.1994.18. Substituted by: XVII. 2002.106.
(2) In arranging for the publication of any such information or advice, the Authority shall have regard to the duty of professional
secrecy and, as far as practicable shall refrain from publishing any
matter which relates to the private affairs of an individual, where the publication of that matter would or might, in the opinion
of the Authority, seriously and prejudicially affect the interest of that individual.
(a) for the provision of compensation where licence holders, or categories thereof, are unable to satisfy their obligations
towards depositors, investors, policy- holders or other claimants in respect of any liability incurred by them in connection with
the carrying out of any activity in regard to which they are licensed or otherwise authorized, and
(b) for the provisions of compensation arising out of or in connection with any other liability as may be prescribed,
and to regulate the management and the financing of any such schemes or arrangements for compensation and the contributions
and levies to be paid thereto, and such regulations may make different provision for different classes of licence holders and claimants.
Compensation schemes. Amended by: XIII.1994.19. Substituted by: XVII. 2002.106.
16.(1)(a) Without prejudice to any other function and power under this or any other law, the Authority shall, in the exercise of its
functions and powers under this Act, have the right to reasonable access and entry to any business premises and, or offices of
a licence holder, access to any relevant documentation and, or records of a licence holder, including access to any telephonic or
other records and access to any other information relat i ng or pert aini ng t o t h e acti viti es licen sed or authorised by the
Authority or otherwise falling under its supervisory or regulatory functions. The Authority shall also have the right to issue orders
for the freezing of funds and, or other assets including bank accounts in the name of the licence holder or any other third party
or parties as may be indicated and for such time and under such conditions as the Authority may set out in wr itin g. The o r der
may also prohi bit a licence h o lder fro m transferri ng, di sp osing o r losin g possession of any such funds or assets. These
orders
may also be issued at the request of a foreign enforcement or supervisory authority.
(b) The directors and managers, by whatever name designated, or any other persons who are or have been in charge of the
operations or activities falling under the supervisory or regulatory functions of the Authority shall assist and shall
collaborate with the Authority in order to enable it to discharge its
Powers of the Authority. Substituted by: XIII.1994.20; XVII. 2002.106. Amended by:
IV. 2003.11; XII. 2006.57;
XX. 2007.5;
L.N. 424 of 2007;
III. 2009.9;
XIX. 2010.11;
X. 2011.4.
Cap. 12.
functions, and shall collate and transmit without any undue delay such information and documentation as the Authority may reasonably
request from time to time.
(c) The Authority may exercise the powers under this article notwithstanding articles 17A and 17B and any provision as may
be contained in any other law.
(2) The Authority may:
(a) issue Rules regulating the procedures and duties of persons licensed or authorised by it, or falling under its regulatory
or supervisory functions and such Rules may:
(i) provide for the returns, statements and notices to be made or given for any purposes in regard to which the Authority
exercises supervisory or regulatory functions under this or any other Act, and the form and contents thereof; and
(ii) prescribe the information that such persons are to submit to the Authority;
(b) issue a directive in writing requiring a holder of a licence or other authorisation, and, or any official thereof, to do or
to refrain from doing any act, including such prohibitions, restrictions and conditions as may be specified in
the directive; and any such directive may be issued in respect of specific cases or classes of cases; any holder of the licence or
other authorisation and, or the official to whom the notice is addressed shall obey, comply with and give effect to any
such directive within the time and manner stated in the directive.
(3) Where a licence holder or the manager, secretary, director or the person responsible for a licence holder contravenes or fails
to comply with any of the conditions imposed in a licence issued by the Authority in terms of article 4 or any directives or Rules
issued in terms of this article, the Authority may by notice in writing and without recourse to a court hearing impose on persons
licensed or aut horised b y it , or fall ing under it s regu latory o r sup e rvi so r y functions including managers, secretaries,
directors and, or other persons, as the case may be, an administrative penalty which may not exceed one hundred and fifty thousand
euro (€150,000) for each infringement or failure to comply, as the case may be.
(4) Where a notice as referred to in subarticle (3) has not been appealed, or where such notice has been appealed, within fifteen
d a y s of t h e determin ation by t h e Tr i bunal of such appeal, the administrative penalty as contained in the notice or as
reduced or inc r ea sed by the decision of th e Tr ibunal shall be due to the Authority. Upon the service of a copy of the notice
of the decision, as th e ca s e ma y be , by me an s o f a j u d i c i a l ac t on t h e p e r s on 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.
(5) The right of the Authority to obtain information from a person who holds or has held a licence or other authorization,
or from any of the officials or employees of such person, shall not be restricted, obstructed or precluded in any manner. Any gagging
or similar confidenti ality obliga tion or o th er restrict iv e co nd iti on arising from the l egal or contractu al relatio nsh
ip betw een su ch person and his officials or employees shall be, in so far as it is contrary to these provisions and impedes or
restricts the right of the Authority to receive information required in the pursuance of its regulatory functions and duties arising
under this or any other Act, null and void.
(6) In furtherance of subarticle (5), the following provisions shall apply:
(a) any person who holds or has formerly held a license or other authorization from the Authority, and the officials and
employees thereof shall, upon a written request by the Authority, promptly provide the Authority with any information
that it may require as provided in subarticle (5), and may not raise any contractual gagging restriction or similar prohibition
or other confidentiality obligation arising or alleged to arise under contract law or otherwise refuse to comply with such a request
of the Authority;
(b) no action for breach of contract and no disciplinary measure may be taken, directly or indirectly, by a person against
any of its officials or employees for providing the Authority with any information required by the Authority as provided in
subarticle (5); and any contractual or disciplinary measure contrary to this provision shall be null and void;
(c) for the purposes of this article:
(i) "information" shall include explanations and other forms of assistance; and
(ii) "employees" and "officials" shall include former employees and officials.
(7) Notwithstanding any provision as may be contained in any other law for whose administration the Authority is responsible and
where c i rcumstances so warran t , t h e Au thor ity may issu e reprimands, warnings or take other similar disciplinary sanctions
or meas ures of whatever type as may be deemed warranted by the circums tances and the nature and seriousness of the breach and wrongdoing.
(8) Any administrative or disciplinary sanction or measure, of w h atever type, incl uding reprim ands or warn ings, imposed or
decided by the Authority under any law for whose administration it is responsible, shall be subject to publication in such medium
and in such manner and for such duration as may be deemed warranted by the circumstances and the nature and seriousness of the breach
or wrongdoing. The Board of Governors may from time to time establi s h p o licies and guid e l i nes regarding the publi c ati o
n of administrative sanctions and disciplinary measures.
Exchange of information. Amended by: XIII.1994.21. Substituted by: XVII. 2002.106. Amended by:
IV. 2003.12; XX. 2007.6;
XIX. 2010.12; X. 2011.5.
(2) Without prejudice to the foregoing provisions of this article, the Authority may, pursuant to a written request, disclose
information to:
(a) an overseas regulatory authority or body carrying out similar or equivalent functions in order to assist the same in matters
related to the regulation and supervision of financial services and the registration of commercial partnerships;
(b) any other body or authority formed or established under Maltese law on matters in respect of which such body or authority
may have a regulatory, supervisory, judicial or licensing function in terms of law:
Provided that the Authority shall disclose the requested information where required or requested to do so within the terms
of Malta’s international commitments, or where so required within t he te rm s o f u nde rst and in g assum ed i n bi lat er al
or m u lt ila ter al agreements for the exchange of information and other form s of co llabor ati on with ov erseas r e gu latory
autho r iti es i n cludi ng a request arising under a Memorandum of Understanding concluded with the Authority.
(3) Information divulged to the Authority under conditions of conf identialit y in pu rsuan ce t o a request with in the ter m
s of a bilateral or multilateral agreement, memorandum of understanding o r o t her sim ilar d o cum e nt or arrangem e nt for t
h e exch ange of information or for any other form of collaboration with overseas regulatory authorities shall be treated as confidential
and no Court or Tribunal may order the disclosure of such information unless the pr io r wr it ten ap pro v a l o f th e o v er seas
reg u l a to ry au th or it y is obtained.
Attachment orders.
Added by:
XX. 2007.7.
Amended by:
L.N. 424 of 2007.
(a) attaching in the hands of such persons (hereinafter referred to as "the garnishees") as are mentioned in the
application all moneys and other movable property due or pertaining or belonging to the suspect;
(b) requiring the garnishee to declare in writing to the
Attorney General, not later than twenty-four hours from the time of service of the order, the nature and source of all money
and other movable property so attached; and
(c) prohibiting the suspect from transferring or otherwise disposing of any movable or immovable property.
(2) Before making an attachment order, the Criminal Court may require hearing the Attorney General in chambers and shall
not make such order unless it concurs with the Attorney General that there is reasonable cause as provided in subarticle (1).
(3) The provisions of article 381(1)(a), (b) and (e) and of article 382(1) of the Code of O rg a nization and Civil Procedure shall, mutatis mutandis, apply to the attachment order.
(4) An attachment order shall be served on the garnishee and on the suspect by an officer of the Executive Police not below the
rank of inspector.
(5) An attachment order shall, unless it is revoked earlier by the Attorney General by notice in writing served on the suspect
and on the garnishee in the manner provided for in subarticle (4), cease to be operative on the expiration of thirty days from the
date on which it is made; and the court shall not make another attachment or d e r wi th r e sp ect to th at susp ect un less it
is satisf i ed t h at substantially new information with regard to the breach of this Act is available:
Provided that the said period of thirty days shall be held in abeyance for such time as the suspect is away from Malta and the Attorney
General informs of this fact the garnishee by notice in writing served in the manner provided for in subarticle (4).
(6) Where an attachment order has been made or applied for, whosoever, knowing or suspecting that the attachment order has b een
so m a de or ap pl ied fo r, makes any di sclo su re li kel y t o prejudice the effectiveness of the said order or any investigation
connected with it shall be guilty of an of f e nce and shall, on con v icti on, b e liabl e to a f i ne ( mu lta ) n o t ex ce ed ing e l e v e n thousand and six hundred and forty-six euro and eighty-seven cents (11,646.87) or to imprisonment
not exceeding twelve months, or to both such fine and imprisonment:
Provided that in proceedings for an offence under this subarticle, it shall be a defence for the accused to prove that he
did not know or suspect that the disclosure was likely to prejudice the investigation or the effectiveness of the attachment order.
Cap. 12.
17B. (1) (a) Where a person (hereinafter referred to as "the person charged or accused") has been charged with a criminal
offence, the Attorney General may apply to the Criminal Court for an order (hereinafter referred to as a "freezing order")
-
(i) attaching in the hands of third parties all moneys and other movable property due or pertaining to the person charged or accused;
and
Freezing of funds.
Added by:
XX. 2007.7.
Amended by:
L.N. 424 of 2007.
(ii) prohibiting the person charged or accused from transferring, pledging, hypothecating or otherwise disposing
of any movable or immovable property:
Provided that the Criminal Court shall in such order determine what moneys may be paid to or received by the person charged
or accused during the subsistence of such order, specifying the sources, manner and other modalities of payment, including salary,
wages, pension and social security benefits payable to the person charged or accused, to allow him and his family a decent living
in the amount, where the means permit, of thirteen thousand an d ni ne hu nd red an d seve nty - six eu ro an d tw ent y -fo u r
c e nt s (13,976.24) every year:
Provided further that the Criminal Court may also -
(i) authorise the payment of debts which are due by the person charged or accused to bona fide creditors and which were contracted before such order was made; and
(ii) on good grounds authorise the person charged or accused to transfer movable or immovable property.
(b) Any addressee shall promptly comply with any written order issued by the Criminal Court in accordance with the provisions
of this article with regards to such funds and assets.
(2) A freezing order shall -
(a) become operative and binding on all third parties immediately it is made, and the Registrar of the Court shall cause a
notice thereof to be published without delay in the Gazette, and shall also cause a copy thereof to be registered
in the Public Registry in respect of immovable property; and
(b) remain in force until the final determination of the administrative or criminal proceedings against the person charged,
as the case may be.
(3) The Criminal Court may for particular circumstances vary such freezing order, and the provisions of the foregoing subarticles
shall apply to such order as so varied.
(4) To the extent possible, a freezing order shall contain the name and surname of the person charged, his profession, trade or
other status, father ’s name, mother ’s name and maiden surname, place of birth and place of residence and the number of his
identity card or other identification document, if any.
(5) Where any money is or becomes due to the person charged from any person while such order is in force, such money shall, unless
otherwise directed in the freezing order, be deposited in a bank to the credit of the person charged.
(6) When such freezing order ceases to be in force as provided in subarticle (2)(b), the Registrar of the Court shall cause a notice to that effect to be published in the Gazette, and shall enter in the Public Registry
a note of cancellation of the registration of that order.
(7) The Authority shall liaise with the Attorney General on matters arising under this article and article 17A and may exchange
information, subject to the obligation of professional secrecy.
(8) Any person who acts in contravention of a court order mentioned in subarticle (1) shall be guilty of an offence and
shall, on convicti on, be liable to a fi ne (multa ) not e xce eding ele ven thousand and six hundred and forty-six euro and eighty-seven cents (11,646.87), or to imprisonment for a
period not exceeding twelve months, or to both such fine and imprisonment, and the court may order the person so found guilty to
deposit in a bank to the credit of the accused the amount of moneys or the value of other movable property paid or delivered in contravention
of that court order.
(2) The Authority may, subject to such conditions it may deem f it t o i m pose and to su ch pro c edur es as may b e app licable according to law, disclose information to overseas central banks and other authorities responsible for monetary policy and, where appropriate to other overseas public auth orities responsible for overseeing payment systems, where such information relates and is connected to their respective functions in terms of law.
Communications with the Central Bank of Malta. Amended by: XIII.1994.21. Substituted by: XVII. 2002.106. Amended by: XIII. 2004.69. Cap. 204.
(a) relates to the functions exercisable by the Authority under this Act or any law, and
(b) is the subject of a representation (other than one appearing to the Authority to be frivolous) made to the Authority by
or on behalf of a person appearing to the Authority to have an interest in that matter.
(2) Where the Authority has investigated any matter under this article, it shall prepare a report on that matter and (subject
to any obligation with respect to professional secrecy) shall send a copy of any such repo rt t o such o f the fol l ow in g persons
as i t th ink s appropriate, that is to say:
(a) any person to whom the report refers or who appears to the Authority to have an interest in the matter to which the report relates;
(b) any person whose functions under any enactment appear to the Authority to be exercisable in relation to that matter;
(c) any person who appears to the Authority to be a person who ought to take account of the report in determining how to act in relation
to that matter.
Consideration of complaints. Amended by: XIII.1994.21. Substituted by: XVII. 2002.106.
Appointment of Consumer Complaints Manager. Substituted by: XVII. 2002.106. Amended by: XX. 2007.8.
Manager.
(2) It shall be the function of the Consumer Complaints Manager to investigate complaints from private consumers arising
out of or in connection with any financial services transaction, and to re fe r such ca ses as ma y be ne cess a ry or a p propriate
to the Supervisory Council for its consideration; provided that nothing in this subarticle shall be construed as giving a consumer
a specific right to require the Consumer Complaints Manager to give him ad vi ce on an y parti c ul ar mat t er or t o act on h
i s beh a lf in an y dispute with a licensed person before any court or tribunal, except to the extent, if any provided for by this
or any other law.
(3) The Consumer Complaints Manager or any other duly aut hori s ed of ficer o f th e Auth orit y m a y comm uni cat e to
a consumer, whose complaint may have been investigated by the Author ity, information concerning any matt er which may have come
to his cognisance i n the course or as a result of th e investigation.
(4) In furtherance of his functions under this article, the Consumer Complaints Manager shall, whenever the circumstances
of a complaint so warrant, encourage the parties to the dispute, to reach an out-of-court settlement of the consumer dispute.
(5) The Consumer Complaints Manager shall, to the extent possible, assist and cooperate with bodies responsible for out-of-
court settlement of cons umer di sputes in Malta and in o t her Member States and EEA States in the resolution of local and cross-
border consumer disputes concerning financial services.
Power to make regulations. Added by:
XX. 2007.10. Amended by:
II. 2010.3; X. 2011.6.
(2) The Minister, acting on the advice of the Authority, may make regulations to give better effect to the provisions of this Act, and without prejudice to the generality of the foregoing may, by such regulations, prescribe anything that is to be or which may be prescribed and provide for any matter consequential, incidental to or connected with any of the above matters.
Distance selling arrangements. Added by:
IV. 2003.13. Amended by:
XX. 2007.9.
offers for such agreements more transparent and informative, and to regulate any other aspect of distance selling.
Authority, make regulations for the transposition of Directive 2002/
8 7 /EC of the Euro pean Parl iamen t and of t h e Co uncil of 1 6
December 2002 and to provide for the supplementary supervision of credit institutions, financial institutions, insurance undertakings
and investment firms in a financial conglomerate, and to otherwise
regulate the supervision of financial conglomerates and financial groups with crosssectoral financial activities.
(2) Regulations made by the Minister in virtue of subarticle (1) shall, in particular and without prejudice to the authority vested
in the Minister by the said subarticle -
(a) provide for the appointment of a co-ordinator responsible for coordination and examination of supplementary
supervision, for the assessment of the financial situation of a group, including solvency requirements, risk concentration
and intra-group transactions, and the means for obtaining from the entities within a financial group and from
other overseas regulatory authorities, the information necessary for the performance of this supplementary supervision
and may provide for consultation and the sharing and exchange of information with overseas regulatory authorities, as may be
necessary;
(b) provide for the establishment and imposition of administrative penalties or other measures for the contravention
of any of the regulations, and to provide for appeals therefrom to the Financial Services Tribunal.
Financial conglomerates. Added by:
XIII. 2004.70. Amended by: XX. 2007.9;
X. 2011.7.
(2) The Tribunal shall consist of a chairman and two other members appointed by the Minister.
(3) The chairman shall be an advocate who for a period of, or periods amounting in the aggregate to, not less than twelve years
has served as an advocate in Malta or served as a magistrate in Malta, or partly so practised and partly so served.
(4) Subject to any other provision in any other law related to the com positio n of the Tr ibun al or to th e qualification s
of i t s members, the two other members mentioned of the Tribunal shall be persons who in the opinion of the Minister possess the
necessary
Language of regulations. Added by: XIII. 2004.70. Amended by: XX. 2007.9.
Financial Services
Tribunal.
Amended by:
XIII.1994.21.
Substituted by:
XVII. 2002.106.
Amended by:
IV. 2003.14;
XX. 2007.11;
L.N. 424 of 2007;
XIX. 2010.13;
X. 2011.8.
expertise and experience in the business or regulation of financial services, or finance.
(5) The chairman and the other members of the Tribunal shall hold office fo r a period of th ree years, shall be elig ib le for
re- appointment and may not be removed during their term of office except on grounds of proved inability to perform the functions
of their office whether arising from infirmity of body or mind or any other cause, or proved misbehaviour.
(6) The chairman and other members of the Tribunal shall receive such remuneration as may be determined in their instrument
of appointment.
(7) The remuneration referred to in subarticle (6) shall not be a l t e red du rin g t h e te nu re of offi ce of a m e m b er
by w h om i t i s receivable, except for such changes as may from time to time be requ ired t o preserve at all times during t h
e t e nure of th e appointment the proportion of the remuneration to the salary of a j u d g e of t h e su perio r co urts, as ex
ist e d on t h e d a te of t h e appointment.
(8) An appeal within the terms of subarticle (9) to the Tribunal shall be made i n wri ting ex plaining clearly t he gro unds for
the appeal by not later than thirty days from the date the decision or act in question has been notified t o th e ag gri e ved p
e rson , and t h e Tribunal shall proceed to deal with any matter before it with utmost urgency and shall give its decision without
delay.
(9) The question for the determination of the Tribunal shall be whether, for the reasons adduced by the appellant -
(a) the competent authority has, in its decision wrongly applied any of the provisions of this Act; or
(b) the decision of the competent authority constitutes an abuse of discretion or is manifestly unfair:
Provided that the discretion of the competent authority may not, so long as it has been exercised properly, be queried by the Tribunal:
Provided further that no appeal shall lie from any decision imposing a penalty not exceeding two hundred and thirty-two euro and ninety-four
cents (€232.94) and from any reprimand, warning or other similar disciplinary sanction or measure.
(10) The Tribunal shall hold its sittings in public unless having regard to the nature of the matter before it, the Tribunal deems
it fit and proper to conduct the proceedings or any part thereof behind closed doors; in any such case the decision of the Tribunal
shall always be delivered in public.
(11) The Tribunal shall have the power to summon witnesses and to administer the oath thereto, and to appoint any expert or experts
as it may deem necessary for the determination of the case before it.
(12) (a) All evidence must be relevant to the matter in issue between the parties.
(b) In all cases the Tribunal shall require the best evidence that the party may be able to produce.
(c) The Tribunal shall disallow any evidence which it considers to be irrelevant or superfluous, or which it does not consider
to be the best which the party can produce.
(13) Upon the hearing of an appeal, made to it under any law, the
Tribunal shall have the power -
(a) to confirm, reverse or vary the decision of the competent authority under the relevant law and to give directions
within its powers under this Act or any other law to the said competent authority to implement the decision of the Tribunal;
(b) to require the production of any document or other information;
(c) to order the payment of costs and expenses by any party to the appeal.
(14) An appeal on a question of law only from a decision of the Tribunal shall lie to the Court of Appeal. An appeal shall be made
by not later than twenty days from the date of the decision of the Tr ib un al. In t h e d e termi n ati on of such an appeal, the
Court of Appeal shall have all the powers of the Tribunal to make orders.
(15) The Minister may make regulations governing the procedure and fees for bringing and conducting appeals before the
Tr ibunal, provid ed that in th e absence of such regulatio ns and subject to the rules of natural justice, the Tribunal shall regulate
its own procedure.
(16) The Minister responsible for Justice may by regulations made under this subarticle establish the fees payable in the registry
of the court in relation to the filing of judicial acts in connection with appeals to the Court of Appeal under this article:
Provided that until such fees are so established by the Minister, the fees contained in Schedule A to the Code of Organization and Civil Procedure shall apply.
(17) An appeal made under this article shall not suspend the operation of any decision or directive from which the appeal is
made:
Cap. 12.
Provided that a decision to cancel a licence shall not become operative until the expiration of the period within which an
appeal lies under this article and, if an appeal is made within such period, the decision shall become operative on the date of the
decision of the Tribunal dismissing the appeal or the date on which the appeal is abandoned.
(18) In this article, "competent authority" refers to the Authority under this Act and under any other law for the purposes
of which it is appointed as the competent authority.
Financial provisions. XV.1989.6: XXXI.1990.4; XIII.1994.21,22. Substituted by: XVII. 2002.106.
Estimates and expenditure. Amended by: XV.1989.7; XXXI. 1990.5; XIII.1994.23. Substituted by: XVII. 2002.106. Amended by:
IV. 2003.16.
prepared in respect of each financial year and shall not later than six weeks after the end of the previous financial year prepare
for ad op tio n by th e Bo ard o f Go vernors, w ith in six w eeks o f presentation with or without amendments, estimates of the
income and expenditure of the Authority for that financial year.
(2) In the preparation of such estimates the Authority shall endeavour to ensure that the total revenues of the Authority
are at least sufficient to meet all sums properly chargeable to its income and expenditure account, including, but, without prejudice
to the generality of that expression, depreciation.
(3) The estimates shall be made out in such form and shall contain such information and such comparisons with previous
years as the Board of Governors may direct.
(4) Notwithstanding the provisions of subarticle (1), if in respect of any financial year, it is found that the amount approved
by the Board of Governors is not sufficient or a need has arisen for expenditure for a purpose not provided for in the estimates,
the Co- ordination Committee may adop t supplem entary estimates for ap prova l b y the Board of G overn ors and, in any such case
the provisions of this Act applicable to the estimates shall as near as practicable apply to supplementary estimates.
Other powers of the Authority. Amended by:
XV. 1989.8; XXXI. 1990.6;
XIII.1994.21,24.| Substituted by:
XVII. 2002.106.
(a) hold accounts with any bank;
(b) invest any of its liquid assets in short and medium term first class securities as approved by the Board of Governors;
(c) acquire, purchase, lease or dispose of any movable or immovable property required for the conduct of its business or for
any purposes ancillary or incidental to the performance of its functions under this Act.
(2) For the purpose of carrying out of its functions under this Act , th e Autho r ity may, wi th th e approv al in writi ng of
the Minister, borrow or raise money in such manner, from such person, body or authority, and under such conditions as the Minister,
may in writing approve.
(2) The surplus funds of the Authority for each financial year shall be determined after t h e Au thority meets all curren t
expendi ture for t h at year and aft e r makin g such prov isions, incl udin g p ro visio ns f or cont ing encies, as it deem s
f it, and th e appropriation referred to in subarticle (1).
(3) After the allocations referred to in subarticles (1) and (2) have been made, the remainder of the surplus funds shall be paid
to the Government.
Advances by the Government. Substituted by: XIII.1994.20. Amended by: XVII. 2002.106; IV. 2003.16.
Determination and allocation of profits.
Amended by: XIII.1994.21;
XVII. 2002.106; IV. 2003.15, 16.
(2) The accounts of the Authority shall be audited by auditors appointed by the Board of Governors from among persons who are qualified to be appointed as auditors of a company.
Accounts and audit. Amended by: XV.1989.10;
XIII.1994.21, 27. Substituted by:
XVII. 2002.106.
Authority’s reporting duties to the House. Amended by: XV.1989.11; XXXI.1990.8; XIII.1994.21. Substituted by: XVII. 2002.106. Amended by:
XIX. 2010.14.
Exemption from liability. Amended by: XV.1989.12; XXXI.1990.9; XIII.1994.21. Substituted by: XVII. 2002.106. Amended by:
IV. 2003.16. Substituted by:
XIX. 2010.15.
Exemption from taxes.
Amended by: XV.1989.13; XIII.1994.28.
Substituted by: XVII. 2002.106.
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