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Maltese Laws |
MALTA RESOURCES AUTHORITY ACT
To provide for the establishment of an Authority to be known as the Malta Resources Authority and for the exercise by or on behalf of that Authority of regulatory functions regarding resources relating to water, energy and mineral resources, and to make provision with respect to matters ancillary thereto or connected therewith.
2nd February, 2001
ACT XXV of 2000, as amended by Acts XII and XXXII of 2007; Legal
Notice 426 of 2007; and Acts II and XXIII of 2009, and V of 2011.
PART I - PRELIMINARY
Act.
"advisory com mittee" or "commit tee" means an advisory committee established in accordance with article 25;
"Appeals Board" means the R e sources Appeals Board established by article 33;
"autho risati on" in clu d es any licen ce or permit h o wever so described issued by or under this Act to operate, provide
or carry out any activity or operation relating to resources and in relation to services and service providers means a permit, licence,
warrant, appointment, concession or decision concerning access to a service activity or the exercise thereof relating to resources;
"aut horisation scheme" means an y aut horisation or other procedure of an administrative nature, under which a provider
or recipient is in effect required to take steps in order to commence th e activity in question and ob tain from a competent authority
authorisation concerning access to a service activity or the exercise thereof;
"aut ho ri se d p r o v i d er" m ean s an y person wh o has a val i d au thori s ation to op erat e, provi de or carry
o u t any activi t y or operation or to provide any service relating to resources;
"Authority" means the Malta Resources Authority established by article 3;
"Chairman" means Chairman of the Authority and includes, in the circumstances mentioned in article 3(3), the Deputy Chairman
or other person appointed to act as Chairman:
Provided that, in relation to article 25, "Chairman" means the Chairman of an advisory committee;
"Chief Executive" means the Chief Executive appointed under article 5;
"contractor" means a person acting in pursuance of an agreement
Short title. Interpretation.
Amended by:
XII. 2007.3;
XXXII. 2007.16;
XXIII. 2009.101.
entered into with the Authority or in accordance with article 5(5);
"d ec is ion " i n cl ude s an y d e te rmin ati on, me as ur e, o r de r , requirement or specification however so described
made by the Authority and the word "decision" shall be construed accordingly;
"direct i ve" means a d i rectiv e issued by the Authority in accordance with the procedures as prescribed by regulations
made under this Act;
"Di r ec torat e s " me an s s u c h dire ct orate s as a r e o r may b e established under article 5;
"distribution" in relation to electrical energy, means the transport of electricity on the medium - v o lt age an d l
o w - vol tage distribution systems with a view to its delivery to customers;
"electrical energy" means elect rical en ergy when generate d, transmitted, distributed, supplied or used for any purpose
except the transmission of any communication or signal;
"employee" means a person employed by the Authority;
"energy" includes electrical energy, fuels, heat when transmitted as a co mmercial activ it y, and energy deri ved from
renewabl e sources;
"establishment" means the actual pursuit of an economic activity as referred to in Article 43 of the Treaty, by a service
provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried
out;
"fuel" includes coal, all hydrocarbons or hydrocarbon derivatives normally used as fu els, in clud ing crude oil , fuel
s b a sed on hydrocarbons or coal, gaseous fuel, petroleum substitutes in liquid form, li qui ds o r gases pro duced from fermen
tati on or si milar processes when intended for use as fuels, fuels produced from solid waste; but does no t inclu d e petroleu m
for t h e purpo ses of th e Petroleum (Production) Act;
"financial year" means any period of twelve months ending on the 31st December:
Provided that the financial year which commenced on the 1st O ctob er, 20 07 sh all b e for a period of fifteen m on ths an d shall
terminate on the 31st December, 2008;
"gas" means all hydrocarbons in gaseous form whether in their natural state or obtained from petroleum or produced chemically;
"Internal Market Information System” means the information system through which competent authorities exchange information
in fulfilment of their obligations under Chapter VI of Directive
2006/123/EC of the European Parliament and of the Council of 12
December 2006 on services in the internal market;
"Member S t ate” means a memb er state of the European
Economic Area;
"Member State of establis hm ent" means the Member State in whose territory the provider of the service concerned is established;
"Member S t ate where the service is provid e d" mean s th e
Member S t ate where the servi ce is supplied by a provider established in another Member State;
"m iner al re s ourc e s " me ans any mine r al , roc k or s e dim e nt constituted of or ganic or in organ i c compo unds
or substances extracted, mined or otherwise derived from the earth, including the seabed and the subsoil thereof, but does not include
water;
"Minister" means the Minister responsible for resources;
"overriding reasons relating to the public interest" means the reasons recognised as such in the case law of the European
Court of Justice in relation to Articles 43 and 49 of the Treaty, as they may continue to evolve and including the following grounds:
(a) public policy, public security, public safety and public health; provided that these grounds shall be interpreted within the meaning
of Article 46 and Article 55 of the Treaty;
(b) the maintenance of order in society; (c) social policy objectives;
(d) the protection of the recipients of services; (e) consumer protection;
(f) the prevention of fraud;
(g) the prevention of unfair competition; (h) the protection of the environment;
"petroleum" means all natural hydrocarbons whether in liquid or gaseous form, including crude oil, and whether in a crude
or natural state or in a processed or refined form and when used in relation to p e t r oleum expl oration and p r oducti on i t
shall hav e the same me aning as is assigned to it by article 2 of the Petroleum (Production) Act;
"public officer" in relation to article 11, has the same meaning assigned to it by article 124 of the Constitution but does not include a ju dg e o f th e Su per i o r Co ur ts or a magi str a te o f th e I n f e r i o r Courts;
"recip ien t " means any n a tu ral per s o n wh o is a nation a l of a Member State or who benefits from rights conferred
upon him by Community acts, or any legal person as referred to in Article 48 of the Treaty and established in a Member State, who,
for professional or non-professional purposes, uses, or wishes to use, a service;
"resources" means the resources relating to water, energy and mineral resources regulated by or under this Act;
"service” means any self-employed activity performed for an economic consideration as referred to in Article 50 of the Treaty;
"services of a general economic interest" means those services declared by the Minister responsible for Competition as services
of g e neral econ omic in terest in term s of article 30 (3) of the Competition Act;
"service provider" means any natural person who is a national of a Member State, or any legal person as referred to in Article
48 of
Cap. 156.
Cap. 379.
the Tr eaty and established in a Member S t ate, wh o of fers or provides a service;
"transmission" in relation to electrical e n er gy, me ans the transport of electricity on the high-voltage interconnected
system with a view to its delivery to final customers or distributors;
"T reaty" means the T r eaty establ ishi ng the Euro pean
Community;
" w ater" when used in rela tion t o an y practi c e, op eratio n or activity which is regulated by this Act shall include
drainage and sewage services, but shall not include bottled table water.
Establishment and composition of the Malta Resources Authority.
PART II - ESTABLISHMENT, FUNCTIONS AND CONDUCT OF AFFAIRS OF THE AUTHORITY
(2) The members of the Authority shall be appointed by the Minister for a term of one year or for such longer period as may be
specified in the instrument of appointment subject to a maximum of three years but the members so appointed may be re-appointed on
the expiration of their term of office.
(3) The Minister may designate one of the other members of the Authority as Deputy Chairman and the member so designated shal
l have all the powers and perform all the functions of the Chairm an during his absence or inability to act as Chairm an or while
the Chairman is on vacation or during any vacancy in the of fice o f ch airman; and the Min i st er may also, in any of th e circumstances
aforesaid, appoint another person to act as chairman and in such case the foregoing provisions shall apply in respect of such person.
(4) A person shall not be qualified to hold office as a member of the Authority if he -
(a) is a Minister, Parliamentary Secretary or a member of the House of Representatives;
(b) is a judge or magistrate of the courts of justice; or
(c) has a financial or other interest in any enterprise or activity which is likely to affect the discharge of his functions as
a member of the Authority:
Provided that the Minister may waive the disqualification of a person under this paragraph if such person declares
the interest and such declaration and waiver are published in the Gazette.
(5) Subject to the provisions of this article, the office of a member of the Authority shall become vacant -
(a) at the expiration of his term of office; or
(b) if any circumstances arise that, if he were not a member of the Authority, would cause him to be disqualified
for appointment as such.
(6) A member of the Authority may be removed from office by the Minister if, in the opinion of the Minister, such member is unfit
t o co nt in u e i n of fi ce o r has be come incapable of properly performing his duties as a member.
(7) If a member resigns or if the office of a member of the Au th orit y is ot herw ise vac ant o r if a m em b er is for an y
reason unable to perform the functions of his office, the Minister m ay appoint a person who is qualified to be appointed to be
a member to be a tem porary m e mber of the Au thority; and any person so appointed shall, subject to the provisions of subarticles
(5) and (6), cease to be such a member when a person has been appointed to fill the vacancy or, as the case may be, when the member
who was un able to perform the functions of his of fi ce resu m e s th ose functions.
(8) Any member of the Authority who has any direct or indirect interest in any contract made or proposed to be made by
the Authority, not being an interest which disqualifies such member from remaining a member, shall disclose the nature of his interest
at the first meeting of the Authority after the relevant facts have come to his knowledge, such disclosure shall then be recorded
in the minutes of the Authority, and the member having an interest as aforesaid shall withdraw from any meeting at which such contract
is discussed. Any such disclosure shall be communicated to the Minister without delay. Where the interest of the member is such
as to disqualify him from remaining a member, he shall report the fact immediately to the Minister and tender his resignation.
(a) to regulate, monitor and keep under review all practices, operations and activities relating to energy, water and
mineral resources;
(b) to grant any licence, permit or other authorisation, for the carrying out of any operation or activity relating to energy, water
and mineral resources;
(c) to regulate and secure interconnectivity for the production, transmission and distribution of the services
or products regulated by or under this Act;
(d) to ensure fair competition in all such practices, operations and activities;
(e) to establish minimum quality and security standards for any of the said practices, operations and activities and to regulate
such measures as may be necessary to ensure public and private safety;
(f) to secure and regulate the development and maintenance of efficient systems in order to satisfy, as economically
as possible, all reasonable demands for the provision of the resources regulated by or under this Act;
(g) to carry out studies, research or investigation on any matter relating to the resources regulated by or under this Act;
Functions of the Authority. Amended by: XII. 2007.4.
(h) to provide information and issue guidelines to the public and to commercial and other entities on matters relating to the
said resources;
(i) to regulate the price structure for any activity regulated by this Act and where appropriate to
establish the mechanisms whereby the price to be charged for the acquisition, production, manufacture, sale, storage and
distribution thereof is determined;
(j) to establish the minimum qualifications to be possessed by any person who is engaged or employed in any activity
regulated by or under this Act;
(k) to establish measures for the protection of the environment and to promote the efficient use of resources
in the practices, operations and activities regulated by or under this Act;
(l) to ensure that international obligations entered into by the Government relative to the matters regulated by or under this Act
are complied with;
(m) to advise the Minister on the formulation of policy in relation to matters regulated by this Act, and in particular in
relation to such international obligations;
(n) otherwise to advise the Minister on any matter connected with its functions under this Act;
(o) to formulate and implement the policies and strategies with short-term and long-term objectives, in relation to the activities
regulated by this Act;
(p) promote the interests of consumers and other users in Malta, particularly vulnerable consumers, especially in respect of the
prices charged for, and the quality and variety of the services and, or products regulated by or under this Act;
(q) to determine disputes in relation to matters regulated by or under this Act;
(r) to perform such other functions as may from time to time be assigned to it by the Minister.
(2) The Authority shall also:- (a) in relation to energy -
(i) promote, encourage and regulate the harnessing,
generation and use of all forms of energy; and
(ii) encourage the use of alternative sources of energy and for such purpose in accordance with such regulations as may
be prescribed, to impose levies on energy produced by non renewable sources and grant subsidies in connection with the production
of energy from renewable sources;
(b) in relation to water -
(i) secure and regulate the acquisition, production,
storage, distribution or other disposal of water for domestic, commercial, industrial or other purposes;
(ii) secure and regulate the conservation, augmentation and operation of water resources and the sources of
water supply;
(iii) secure and regulate the treatment, storage, disposal, use or re-use, as appropriate, of sewage, waste
water, sludge and storm water run-off;
(iv) secure and regulate the provision of adequate systems of public sewers and to ascertain their cleanliness, safety and
efficiency;
(v) ensure the safe discharge, reception, treatment and disposal of trade effluent;
(vi) encourage and regulate the re-use of treated effluent;
(vii) ensure the proper and fit disposal of waste water sewage;
(viii) maximise the use of storm water run-off; (c) in relation to mineral extraction -
(i) carry out such functions as may be authorised by the Minister in terms and for the purposes of the Petroleum (Production)
Act and the Prime Minister in terms and for the purposes of the Continental Shelf Act;
(ii) subject to the provisions of sub-paragraphs (i) of this paragraph, regulate all matters relating to petroleum extraction;
(iii) subject to the provisions of sub-paragraphs (i) and (ii) of this paragraph regulate all matters relating to the extraction
of mineral resources;
(iv) ensure the optimum utilisation of mineral resources and regulate the quality and quantity of minerals extracted;
(d) in relation to petroleum -
(i) secure that adequate provision and reserve stocks of petroleum and gas is available at all times;
(ii) regulate the distribution, sale, exportation or disposal in any other manner of fuels supplied for bunkering; for the
purposes of this paragraph "bunkering" and "fuel" shall have the same meaning assigned to them by
article 2 of the Bunkering (Fuels) Tax Act.
(3) The provisions of this article shall be without prejudice to the exercise of the functions of any authority established by
or under any law in relation to public health, the environment or any other matter falling within the functions of any such authority.
Cap. 156. Cap. 194.
Cap. 381.
(4) The Authority may require any authorised provider to provide it with any information, including financial information that the Authority considers necessary for the purpose of ensuring compliance with the provisions of this Act, regulations prescribed thereunder and decisions or directives made in accordance with this Act, regulations prescribed thereunder or any other law which the Authority is entitled to enforce. Any person who fails or refuses to provide such information shall be in contravention of this Act and shall be liable to the imposition of an administrative fine as may be prescribed by the Authority.
Conduct of the affairs of the Authority. Amended by:
V. 2011.31.
(2) The Authority shall, in consultation with the Minister, establish Dire ctorat es, Un its, Division s and Sections
a s appropriate, and vested with such responsibilities as it may decide and which it may vary from time to time, as it deems appropriate.
(3) The Authority shall exercise its functions through the Directorates, Units, Divisions and Sections so established and
for such purpose it shall vest in eac h of the Directorates, Units, Divisions and Sections so established and subject to the overall
su pervisio n and con t rol of the Ch ief Execut ive, such o f its functions as relate or are ancillary to the matters for which
it is responsible so as to enable the said Directorate, Unit, Division and Sect ion t o giv e e ff ect to th e p o l i ci es of the
Au th or ity an d to otherwise discharge effectively and efficiently the functions of the Authority in its respective area of operation.
(4) Each of the Directorates, Units, Divisions and Sections so established shall be headed by an individual who shall either be
a public officer detailed for duty with the Authority or an employee of the Authority or a person detailed to work for the Authority
in accordance with an agreement made between the Authority and a publ ic or p r ivate und ertakin g , in ei ther case having ad eq
uat e experience or knowledge in the respective area of operation.
(5) The Authority and each of the Directorates, Units, Di vi sion s an d S e ct io ns m a y ex er cise an y on e
or m o re o f t h ei r funct i o n s eit h er di rect ly or th rou gh any of th eir of fi cers or em plo yees or th rou gh an agency
authorised f or the p urp ose, or through a contractor or other person with whom an agreement for the performance of any one or
more of such functions has been entered into:
Provided that nothing in this subarticle shall authorise the Aut hori t y to con t ract ou t any of i t s regul at ory or l i cen
s i n g functions.
(6) Where in this Act anything is to be done by or against or with respect to the Authority, or any notice is to be or may be
given
to the Authority, any such thing or notice may also be done by or agains t or with respect to or be given to the Directorate, Unit,
Division and Section under whose jurisdiction the matter falls by r e ason o f a d e l e gati on of fun c tio n to such Dire ctorate,
Unit, Division and Section; and for the purposes aforesaid any reference in this Act to the Authority includes a reference to the
appropriate Directorate, Unit, Division and Section.
(7) The Chief Executive and the heads of the Directorates, Units, Divisions and Sections shall be appointed by the Authority
following consultation with the Minister for a period of three years and such period may be extended for further periods of three
years each:
Provided that the first Chief Executive and the first head of each Directorate, Unit, Division and Section shall be appointed by the
Minister.
(8) The Chief Executive shall attend all the meetings of the
Board but shall not vote at such meetings:
Provided that the Authority may if it so deems fit require the Chief Executive not to attend any of the meetings or any part of a
meeting.
(9) The Chief Executive shall be responsible for the implementation of the objectives of the Authority in the exercise
of i t s fun c t i on s an d witho u t prejud ice t o t h e generality of the foregoing he shall -
(a) assume full responsibility for the overall supervision and control of the Directorates, Units, Divisions and Sections;
(b) assign to each Directorate, Unit, Division and Section such duties which he considers necessary or expedient;
(c) co-ordinate the workings of the Directorates, Units, Divisions and Sections;
(d) develop the necessary strategies for the implementation of the objectives of the Authority;
(e) advise the Authority on any matter it may refer to him or on any matter which he considers necessary or expedient; and
(f) such other duties as the Authority may assign to him from time to time.
(2) The Authority shall afford to the Minister facilities for obtaining information with respect to its property and activities and furnish him with returns, accounts and other informa tion with respect thereto, and afford to him facilities for the verification of
Relations between the Minister and the Authority.
Legal personality and representation of the Authority.
Provisions with respect to proceedings of the Authority.
information furnished, in such manner and at such times as he may reasonably require.
(3) If the Authority fails to comply with any directions issued u n d e r th is ar ti cle, th e Pri m e Mi ni st er m a y ma ke
a n o r d e r transferring to the Minister in whole or in part any of the functions of the Authority.
(2) The legal representation of the Authority shall jointly vest in the Chairman and the Chief Executive:
Provided that the Authority may appoint any one or more of its members or of the officers or employees of the Authority to appear
in the name and on behalf of the Authority in any judicial proceedings and in any act, contract, instrument or other document whatsoever:
Provided further that in respect of any matter falling within the fu nctio ns vested i n a D i rectorate, the legal and judi cial
representation of the Authority shall also vest in the head of the Directorate or in such other member, officer or employee of
the Auth ority, as th e Autho r ity m a y app o int or auth orise for th e purpose.
(3) Any document purporting to be an instrument made or issued by the Authority and signed by the Chairman or by the Chief
Executive or by a head of a Directorate in relation to any matter vested in the relative Directorate by the Authority shall be received
in evidence and shall, until the contrary is proved, be deemed to be an instrument made or issued by the Authority.
(2) Half the number of members for the time being constituting the Authority shall form a quorum. Decisions shall
be adopted by a simple majority of the votes of the members present and voting. The Chairman, or in his absence the Deputy Chairman
or other person appointed to act as chairman, shall have an initial vote and in the event of an eq u a li ty of vo tes, a castin
g vot e. Without prejudice to the other requirements of this Act, no decision shall be valid which is not supported by at least two
members of the Authority.
(3) Subject to the provisions of this Act the Authority may regulate its own procedure.
(4) Subject to the foregoing provisions of this article, no act or proceeding of the Authority shall be invalidated merely by
reason
of the existence of any vacancy among the members.
(5) All acts done by any person acting in good faith, as a mem ber of the Authority shall be valid as if he were a
member notw ith st andin g t h at som e d e fect i n h i s appo int m ent or qualification be afterwards discovered. No act
or proceeding of the Authority shall be questioned on the ground of the contravention, by a member, of the provisions of article
3(8).
PART III - OFFICERS AND EMPLOYEES OF THE AUTHORITY
(2) The period during which a direction as aforesaid shall ap ply to any officer sp ecified therein, sh all, unless the office r retires from the public service, or otherwise ceases to hold office at an e a rli e r da te , o r un le ss a di ff erent date is spec ified in such direction, cease to have effect after one year from the effective date of such dire ction unless the direction is revoked earlier by the Prime Minister.
(2) Without prejudice to the generality of the foregoing, an officer detailed for duty as aforesaid -
(a) shall not during the time in respect of which he is so detailed -
(i) be precluded from applying for a transfer to a department of the Government in accordance with the terms and conditions
of service attached to the appointment under the Government held by him at a date on which he is so detailed for duty; or
(ii) be so employed that his remuneration and conditions of service are less favourable than those which are
attached to the appointment
Staff appointments.
Appointment and functions of officers and employees of the Authority.
Detailing of public officers for duty with the Authority.
Status of public officers detailed for duty with the Authority.
Cap. 93. Cap. 58.
Offer of permanent employment with the Authority to public officers detailed for duty with the Authority.
Cap. 93. Cap. 58.
aforesaid or which would have become attached to such appointment, during the said period, had such officer not been detailed for
duty with the Authority; and
(b) shall be entitled to have his service with the Authority considered as service with the Government for the purposes of
any pension, gratuity, or benefit under the Pensions Ordinance and the Widows’ and Orphans’ Pensions Act and of any other right or privilege to which he would be entitled, and liable to any liability to which he would be liable,
but for the fact of his being detailed for duty with the Authority.
(3) Where an application is made as provided in subarticle (2)(a)(i) the same consideration shall be given thereto as if the applicant had not been detailed for service with the Authority.
(4) The Authority shall pay to the Government such co ntribu tion s as may from t ime to ti me b e d e termined
b y th e Minister responsible for finance in respect of the cost of pensions and grat uities earned by an officer detailed for duty
with th e Authority as aforesaid during the period in which he is so detailed.
(2) The terms and conditions comprised in any offer made as aforesaid shall not be deemed to be less favourable merely because
they are not in all respects iden tical with or superior to those enjoyed by the officer concerned at the date of such offer, if
such terms and conditions, taken as a whole, in the opinion of the Prime Minister offer substantially equivalent or greater benefits.
(3) Every officer who accepts permanent employment with the Authority offered to him, under the provisions of subarticle (1)
shall for all purposes other than those of the Pensions Ordinance and of the Wi dows’ and Orphans’ Pens ions Act, and saving the provisions of subarticle (6), be deemed to have ceased to be in service with the Government and to have entered
into service with the Authority on the date of his acceptance, and for the purposes of the said Ordinance and of the said Act, so
far as applicable to him, service with the Authority shall be deemed to be service with the Government within the meanings thereof
respectively.
(4) Every such officer as aforesaid who, immediately before accepting permanent employment with the Authority was entitled to
benefit under the Wi dow s ’ and O r phans’ Pens i o ns A c t, shall continue to be so entitled to benefit thereunder to all intents as if his service with the Authority were service with the
Government.
(5) The Authority shall pay to the Government such co ntribu tion s as may from t ime to ti me b e d e termined
b y th e Minister responsible for finance in respect of the cost of pensions
and gratuities earned by an officer who has accepted performance empl oym ent wi th the A u th ori t y as afo r esaid during th e
period commencing on the date of such officer ’s acceptance.
(6) For the purposes of the Pensions Ordinance the pensionable emoluments of such public officer on retirement shall be deemed to be the pensionable emoluments payable to an officer
in Government service in a grad e and at an incrementa l level corresponding to the post and incremental level at which the officer
retires from the Authority.
(7) (a) For the purposes of this article posts and salary grades with the Autho r ity shall b e classified i n th e most nearly corresponding
grades and incremental levels in th e servi ce un der t h e G o v e rn m e nt o f Mal t a by reference to job description,
skills, responsibilities and other analogous factors.
(b) The classification referred to in paragraph (a) shall be carried out by a board composed of a chairman appointed by the Ministry responsible for finance and t w o ot her mem b
ers, o n e app o i n t e d b y th e Mi ni str y r e spo n sible cen t rally for per s o nnel p o licies in the public service and
one appointed by the Authority. The classification shall be subject to the final approval of the Minister responsible for finance.
(c) Such classification shall take place within three months of any adjustment of salaries of employees in Go vern m e
nt s e rv i ce and , o r, of e m p l oy ees of th e Authority.
(d) No post shall be classified in a grade higher than that of a Grade 3 in the service of the Government or such other grade that
the Minister responsible for finance may from time to time by notic e in the Gazette determine.
(e) Without prejudice to article 113 of the Constitution, no person may, following a classification as aforesaid, be entitled to rights under the said Pensions Ordinanc e less fa vo urabl e th an th ose t o wh ich h e wo ul d hav e been entitled prior to such classification.
PART IV - FINANCIAL PROVISIONS
(2) For such purpose the Authority shall levy all fees, rates and other payments prescribed or deemed to be prescribed by or under
this Act or any other law related to the powers and functions of the Authority.
(3) The Authority shall also be paid by Government out of the Consolidated Fund such sums as Parliament may from time to time
authorise to be appropriated to meet any of its expenditure that
Authority to meet expenditure out of revenue.
Power to borrow or raise capital. Amended by:
L.N. 426 of 2007.
Advances from
Government.
Borrowing from
Government.
be continued or otherwise carried out by the Authority, being works of infrastructure or a similar capital nature.
(4) Any excess of revenue over expenditure shall, subject to such directives as the Minister, after consultation with the Minister
responsible for finance, may from time to time give, be applied by the Authority to the formation of reserve funds to be used for
the purposes of the Authority; and without prejudice to the generality of the powers given to the Minister by this subarticle, any
direction given by the Minister as aforesaid may order the transfer to the Government, or the application in such manner as may
be specified in the direction, of any part of the fees, rates and other payments levied in accordance with su barticle (2) or any
such excess as aforesaid.
(5) Any funds of the Authority not immediately required to meet expenditure may be invested in such manner as may from time to
time be approved by the Minister.
(2) The Authority may also, from time to time, borrow, by way of overdraft or otherwise, such sums as it may require for carrying
out its functions under this Act:
Provided that for any amount in excess of one hundred and sixteen thousand and four hundred and sixty-eight euro and sixty- seven
cents (116,468.67), there shall be required the approval of the Minister in writing.
(2) Notice of any loans, liabilities or advances made or incurred under the fore go ing prov is io ns of this arti cle
shall be given to the House of Representatives as soon as practicable and, in any case, not later than eight weeks after such loan,
liability or
advance is made, or if at any time during that period the House is not in session, within eight weeks from the beginning of the next
following session.
(3) Pending the raising of any such loan as is mentioned in subarticle (1), or for the purpose of providing the Authority with
working capital, the Min i ster responsible for finance m a y, by warrant under his hand, and without further appropriation other
than this Act, authorise the Accountant General to make advances to the Authority out of the Treasury Clearance Fund under such terms
as may be specified by the Minister upon the making thereof.
(4) The proceeds of any loan raised for the purposes of making advances to the Authority, and any other moneys to be advanced
to the Authority under this article, shall be paid into a fund specially established for the purpose and which shall be known as
the "Malta Resources Authority Loan Fund".
(5) Sums received by the Accountant General from the Authority, in respect of advances made to the Aut hority under
subarticle (3) shall be paid, as respects of amounts received by way of repayment into the Treasury Clearance Fund and, as respects
of amounts received by way of interest into the Consolidated Fund.
Provided that the estimates for the first financial year of the Authority shall be prepared and adopted within such time as the Minister
may by notice in writing to the Authority specify.
(2) In the preparation of such estimates the Authority shall take account of any funds and other monies that may be due to
be paid to it out of the Consolidated Fund during the relevant financial year, whether by virtue of this Act or an appropriation
Act or of any other law; and the Authority shall so prepare the said estimates as t o ensure that the t o tal revenues of th e Aut
hority are at least suff icient to m e et all sums pr o p erly chargeable to its revenue 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 comparison with previous years as
the Minister responsible for finance may direct.
(4) A copy of the estimates shall, upon their adoption by the Authority, be sent forthwith by the Authority to the Minister and
to the Minister responsible for finance.
(5) The Minister shall, at the earliest opportunity and not later than six weeks after he has received a copy of the estimates
from the Authority approve the same with or without amendment after consultation with the Minister responsible for finance.
Estimates of the
Authority.
Expenditure to be according to approved estimates.
Publication of approved estimates.
Accounts and audit.
(2) Notwithstanding the provisions of subarticle (1) -
(a) until the expiration of six months from the beginning of a financial year, or until the approval of the estimates for
that year, whichever is the earlier date, the Authority may make or incur expenditure for carrying on its functions under
this Act not exceeding in the aggregate one-half of the amount approved for the preceding financial year;
(b) expenditure approved in respect of a head or sub-head of the estimates may, with the approval of the Minister given after consultation
with the Minister responsible for finance, be made or incurred in respect of another head or sub-head of the estimates;
(c) in respect of the first financial year, the Authority may make or incur expenditure not exceeding in the aggregate
such amounts as the Minister responsible for finance may, after consultation with the Minister, allow;
(d) if in respect of any financial year it is found that the amount approved in the estimates is not sufficient or a need has arisen
for expenditure for a purpose not provided for in the estimates, the Authority may adopt supplementary estimates for approval
by the Minister and in any such case the provisions of this Act applicable to the estimates shall as near as practicable
apply to the supplementary estimates.
(2) The accounts of the Authority shall be audited by an auditor or auditors to be appointed by the Authority and approved
by the Minister:
Provided that the Minister responsible for finance may, after consultation with the Minister, require the books and accounts
of the Authority to be audited or examined by the Auditor General who shall for the purpose have the power to carry out such physical
checking and other certifications as he may deem necessary.
(3) After the end of each financial year, and not later than the date on which the estimates of the Authority are forwarded to
the Minister under article 18, the Authority shall cause a copy of the statement of account duly audited to be transmitted to the
Minister and to the Minister responsible for finance together with a copy of an y repo rt made b y t h e au dit o rs o n th at statemen
t o r on th e
accounts of the Authority.
(4) The Minister shall, at the earliest opportunity and not later than eight wee k s a f ter he has receive d a copy of every
s u ch statement and report, or if at any time during that period the House of Representatives is not in session, within eight weeks
from the beginning of the next following session, cause every such statement and report to be laid on the Table of the House of Representatives.
(2) All payments out of the funds of the Authority, other than petty disbursements not exceeding a sum fixed by the Authority,
shall be made by such officer or officers of the Authority as the Authority shall appoint or designate for that purpose.
(3) Cheques against and withdrawals from any bank account of the Authority shall be signed by such officer of the Authority as
may be appointed or designated by the Authority for that purpose and shall be countersigned by the Chairman, or such other member
or officer of the Authority as may be authorised by the Authority for that purpose.
(4) The Authority shall also make provision with respect to - (a) the manner in which and the officer or officers by
whom payments are to be authorised or approved;
(b) the title of any account held with the bank or banks into which the monies of the Authority are to be paid, and the transfer of
funds from one account to the other;
(c) the method to be adopted in making payments out of funds of the Authority;
and generally with respect to any matter which is relevant to the pr oper keeping and control of the accounts and books, and the
control of the finance, of the Authority.
Deposit of revenues and payments by the Authority.
Contracts of supply of works.
Amended by:
L.N. 426 of 2007.
Annual report.
activities of the Authority during that financial year and containing such info rmation relat i ng to the proceeding s and po licy of the Authority as either of the said Ministers may from time to time require. The Minister shall, at the earliest opportunity and not later than eight weeks after he has received a copy of every such report, or if at any time during that period the House of Representatives is not in session, within eight weeks from the beginning of the next following session, cause a copy of every such report to be laid on the Table of the House of Representatives.
Appointment and functions of advisory committees.
Licensing, etc., of activities. Amended by:
XII. 2007.5;
L.N. 426 of 2007.
Cap. 156.
PART V - MISCELLANEOUS
(2) An advisory committee shall, for the better carrying out of the provisions of this Act, advise the Authority on such matters
and perform such other functions as the Minister may specify in the instrument of appointment.
(3) The members of the committee shall be appointed by the Minister and shall hold office for such period and on such terms and
conditions as the Minister may deem appropriate.
(4) Each committee shall consist of one member representing the Authority as Chairman and such other members as the Minister may
deem fit to appoint.
(5) The provisions of paragraph of subarticle (4)(a), article
3(5) and (8) shall mutatis mutandis apply to the members of the advisory committees.
(6) Each advisory committee shall keep minutes of all its meetings and shall forward copies of such minutes to the Authority.
The provisions of article 8 shall m u ta ti s mu t an di s appl y to the committee and its members.
Provided that in relation to the exploration and production of hydrocarbons, power to exercise the issue of a licence under this Act
shall be subject to an authorisation of the Minister in terms of the Petroleum (Production) Act.
(2) Any person who carries out any such activity without a licence or who acts in breach of any condition of such licence,
shall be guilty of an offence and shall be liable on conviction to a fine (multa) not exceeding one hundred and sixteen thousand and four hundred and sixty-eight euro and sixty-seven cents (116,468.67) or to imprisonment
for a term not exceeding two years, or to both such fine and imprisonment.
Cap. 12. (3) Saving the provisions of article 469A of the Code of
Organi zation and Civil Procedure no appeal shall lie from any
decision of the Authority under subarticle (1).
(4) The provisions of this article shall not apply to any cistern or well in any dwelling house, which is required to be constructed
under any law, and the provisions of this article shall not be deemed to require any licence or permit f o r the construction and
mai n t e nan ce o f any su ch c i stern or w e ll , so ho weve r thi s construction shall not preclude the Authority from exercising
any o f i t s fun c t i on s and pow ers und er thi s Act for t h e pu rpo s e o f ensuring that water is not wasted or misused and
that no damage is caused to the aquifer or elsewhere.
(5) An authorisation granted to a person under this Act shall not relieve such a person from the requirement at law to apply for
any other authorisation however so described, or from any other obligation arising under any other law.
(2) Without prejudice to the generality of the aforesaid power such regulations may, in particular provide -
(a) for any aspect relating to the procedure and conditions that may be imposed in relation to any authorisation under this Act including
where applicable the grant, renewal, transfer, suspension, cancellation and duration of any such authorisation,
the manner in which applications for such authorisations is to be made, the content and form of such applications and
how they may be granted, renewed or transferred, the fees payable, and the manner in which renewals or transfers thereof
is to be indicated;
(b) for the regulation of any aspect relating to imposition of public and, or universal service obligations, however
so described, in respect of any operation, activity or service regulated by this Act;
(c) for the regulation of price structures for resources and where appropriate for the regulation and determination of tariffs, price
mark-ups and charges for the supply, storage and distribution of resources and for the use of any systems used in the distribution
and transmission of resources;
(d) for securing adequate reserves, where applicable, and for securing the adequate provision of the resources regulated by or under
this Act;
(e) for the compulsory acquisition and distribution of any such resources during periods of scarcity;
Persons deemed public officers.
Power to make regulations. Amended by: XII. 2007.6.
(f) for the minimum standards to be adopted in, and any other matter related to the conservation, acquisition, supply, sale,
storage, generation, distribution, transmission, export, treatment, re-use or disposal and any other practices,
operations and activities, regulated by or under this Act including the means by which such resources are to be protected,
acquired, supplied, sold, stored, generated, distributed, transmitted, exported, treated, re-used or disposed of;
(g) for the quality of service targets and the establishment and maintenance of an efficient customer service by authorised providers
for consumers;
(h) to secure and regulate the conservation, augmentation, operation and use of sources of energy, water and mineral resources
as well as the promotion and the harnessing, generation and use of all forms of resources;
(i) for ensuring fair competition in all practices, operations and activities related to resources;
(j) for the undertaking of studies, research or investigation on any matter relating to the resources regulated
by or under this Act and the provision of information, the issue of guidelines to the public and to commercial entities on matters
relating to the said resources;
(k) to give effect to any international obligation entered into by Government in relation to the resources regulated
by or under this Act;
(l) for regulating the services that may be required in relation to energy, water or mineral resources and the time, manner,
place and condition in which or under which such services are to be provided;
(m) for the regulation of the qualifications to be possessed by persons who are employed in any activity regulated by or under this
Act;
(n) for matters concerning the construction, condition and maintenance of any facilities, apparatus and other equipment utilised
in the provision of any of the said resources or services related thereto;
(o) for prescribing the information to be retained by authorised providers under this Act and the provision of statistical
data by such authorised providers, and on any other matter relating to provision of information by authorised providers to the Authority;
(p) for the making of any deposit or the giving of any guarantee to ensure the performance of any obligation by any person
imposed as a condition of any permit, authorisation or licence under this Act;
(q) for prescribing the practices to be adopted in regard to safety, and the protection of the environment in
relation to any matter regulated by this Act, including any norms in relation to the liability of any person who causes damage to
the environment as a result of any activities regulated by or under this Act undertaken by that person;
(r) regarding a contingency plan in the event of any crisis relating to any matter regulated by this Act;
(s) for complaint processing procedures to be implemented by an authorised provider, and for any matter relating
to the resolution of any disputes and, or complaints, however so described, relating to any matter regulated by this Act;
(t) in regard to administrative infringements and fines;
(u) regarding cooperation with other authorities and the relationship between the Authority and other public authorities including
consultations, provision of information and any other matter of mutual interest;
(v) for the procedure to be followed before the Appeals Board and for the establishment of any such fees as are considered to
be necessary in relation to any proceedings before the Appeals Board;
(w) for the procedures to be followed in regard to the settlement of disputes;
(x) for the enforcement powers required by the Authority to perform its functions under this Act;
(y) for prescribing anything which may be or is required to be prescribed by this Act.
(2) The provider of any service for which a licence is required under this Act and any employee duly authorised by him may at
all reasonable times enter any premises for the purpose of -
(a) ascertaining that the services are being used in accordance with the conditions under which they are supplied;
(b) maintaining or repairing any equipment supplied by him in relation to such service;
(c) ascertaining such data or information that may be required in connection with the provision of such service:
Provided that any such service provider shall repair all damage caused by such entry.
(3) Any person who obstructs or impedes any person in the exercise of his duties under subarticle (1) hereof shall be guilty
of an offence against this Act.
Powers of service provider.
Enforcement powers of the Authority. Added by:
XII. 2007.9. Amended by:
L.N. 426 of 2007.
(a) the making of such inspections, tests, measurements, lifting of samples or to ascertain that nothing contrary to the provisions
of this Act, to the regulations made thereunder or to any term or condition attached to any licence, permit or authorisation issued
under this Act is being carried out;
(b) ascertaining or reproducing such data or information as the Authority may require.
(2) Any person who obstructs or impedes any officer or employee of the Authority in the exercise of his duties under this
Act shall be guilty of an offence and shall, on conviction, be liable to imprisonment not exceeding eighteen months or to a fine
(multa) of not more than sixty-nine thousand and eight hundred and eighty- one euro and twenty cents (69,881.20) or to both such fine and
imprisonment.
Imposition of administrative fines.
Added by: XII. 2007.9.
Amended by: II. 2009.58.
(2) An administrative fine imposed under subarticle (1) shall not exceed one hundred thousand euro (€100,000) for each contravention and, or six hundred euro (€600) for each day of non-compliance, from the date of the decision given by the Authority.
Proceedings when imposing administrative fines.
Added by: V. 2011.32.
(a) any provision of this Act;
(b) regulations made thereunder;
(c) any other law which the Authority is entitled to enforce;
(d) any directive or decision given by the Authority whether under this Act, regulations made thereunder or under any other
law which the Authority is entitled to enforce; or
(e) any condition of any authorisation granted under this
Act,
shall by judicial letter to the person concerned -
(i) give notice of the administrative penalty that may be imposed by the Authority;
(ii) give notice of the specific reason why such penalty may be imposed;
(iii) give notice of the amount of the penalty;
(iv) demand that the person concerned rectify the acts or omissions committed by such person and, or make submissions to
the Authority within a specified time:
Provided that such time may not be of more than twenty days and of not less than five days from the date of service of the judicial
letter:
Provided further that the person, against whom an administrative penalty may be imposed, shall be given a reasonable
opportunity during such period of time as may be stipulated in the judicial letter to make submissions to the Authority and to propose
any re medies that rectify the act s o r om issio ns requ ired by th e Authority to be so rectified.
(2) In the judicial letter mentioned in subarticle (1), the Auth orit y may i m p o se such cond itio ns as it may co nsider
reasonable in the circumstances.
(3) If the person concerned remedies the infringement within t h e peri od establ ished b y t h e Authority in ac cordance with
subarticle (1), and agrees in writing to abide with any conditions that th e Au tho rit y m ay im pose, th e Au tho ri ty sh all
desist fr om proceeding any further:
Provided that if the person concerned, after having been bound in writing as stated above, fails to remedy the infringement within
the period established by the Authority in accordance with subarticle (1) or fails to abide with any conditions agreed to in w r
iting, t h e Authori t y shall impose ag ainst such person an admi nistrativ e penal t y for such fai l ure, in addit i on to the
administrative penalty which may be imposed for the infringement
itself.
(4) If, after the lapse of the period mentioned in subarticle (1), the Authority considers that the person concerned has not given
any valid reasons to demonstrate why no administrative penalty should be imposed against such person, the Authority shall proceed
to impose such administrative penalty.
(5) Notwithstanding any other provision of this article, where the Authority has prima facie evidence that the infringement -
(a) represents an immediate and serious threat to public safety or public security or public health; or
(b) creates or may create serious economic or operational problems for other providers of resources or for consumers,
the Authority may shorten the periods mentioned in subarticle (1): Provided that the person against whom such administrative
penalty is imposed shall be given a reasonable opportunity to state
any views and propose any possible remedies.
Cap. 12
(6) The judicial letter referred to in subarticle (1), upon the expiry of the time limit for appeal therefrom, and upon the service
of a copy thereof by means of a judicial act on the person liable to the paym en t of the adm i nist rative penalty, shall constitute
an executive title for all effects and the purposes of article 253(a) of the Code of Organization and Civil Procedure:
Provided that if the person, against whom the judicial letter has been issued, files an appeal before the Appeals Board, and concurrently
with or before the filing of the appeal requests the Appeals Board to suspend the effects of the judicial letter, then the Authority
shall desist from issuing a judicial act as referred to in this subarticle until the request of suspension has been determined, withdrawn
or otherwise dealt with:
Provided further that the Appeals Board shall determine any request s for suspension re f e rred t o in this sub a rt icl e
expeditiously. Before determining any such request the Appeals Board shall give the Authority a reasonable opportunity to reply
an d mak e i t s s u b m is si on s, wi t h i n a p e r i o d no t les s th an th r e e working days.
(7) Interest at the rate of eight per cent per annum shall run as fr om the date set by the Authority for the payment of any
administrative penalty imposed by it. In cases where the Appeals Board or the Court of Appeal, as the case may be, after having
upheld an application to suspend the penalty pending proceedings, finally decides that the administrative penalty as imposed by the
Authority is due, such administrative penalty shall be due together with any interests accrued thereon as from the date originally
set by the Authority for payment including the period during which the payment of the said penalty was suspended.
(8) The Authority shall give its reasons for any decision taken under this article.
(9) Notwithstanding the provisions of any other law, no precautio nary warran t or order shal l be issued by any co
urt restraining the Authority from the exercise of any of the powers conf erred up on i t und er thi s A c t in relat i o n to
admi ni strat i v e penalties.
(10) In all cases where the Authority imposes an administrative penalty in respect of anything done or omitted to be done by any
person and such act or omission also constitutes a criminal offence, no proceedings may be taken or continued against the said person
in respect of such criminal offence.
(11) An administrative penalty imposed by the Authority upon any person shall be considered a civil debt.
(12) If any person knowingly avoids, obstructs or refuses service of any judicial act issued under this article, such person
shall be guilty of an offence and shall be liable, on conviction, to a fine (multa) of not more than seventy thousand euro (€70,000).
31B. Where an administrative infringement breaches - (a) any provision of this Act;
(b) regulations made thereunder;
(c) any other law which the Authority is entitled to enforce;
or any person -
(i) fails to comply with any directive or decision given by the Authority whether under this Act, regulations made thereunder
or under any other law which the Authority is entitled to enforce; or
(ii) fails to comply with any condition of any authorisation granted under this Act, and the infringement is committed
by a body corporate and is proved to have been committed with the consent, or involvement of, or to be attributable to, any gross
negligence on the part of a person being a director, manager, secretary or other officer, however so described, of such
body corporate or a person who was purporting to act in any such capacity,
such person and such body corporate, shall be responsible for the said infringement and shall be jointly and severally liable for
the payment of any administrative penalty imposed by the Authority as a consequence thereof.
Administrative infringements by bodies corporate. Added by:
V. 2011.32.
(a) prescribe imprisonment and different fines (multi) for different offences;
(b) prescribe fines (multi) calculated in accordance with the duration of the commission of the offence:
Provided that any such regulations as may be made shall not provide for:
(i) imprisonment for more than eighteen months, or a fine (multa) of more than sixty-nine thousand and eight hundred and eighty-one euro and twenty cents (69,881.20); or
(ii) one thousand and three hundred and ninety- seven euro and sixty-two cents (1,397.62) for each day during which the
offence persists.
(2) The members of the Appeals Board shall be appointed by the Minister for a period indicated in their letter of appointment,
Power of Minister to make regulations in
relation to criminal offences.
Added by: XII. 2007.9. Amended by:
L.N. 426 of 2007.
Resources Appeals
Board.
Amended by:
XII. 2007.8.
Cap. 12.
Appeals. Amended by: XII. 2007.10; V. 2011.33.
and may be so appointed for further periods as the Minister may deem appropriate.
(3) A member of the Appeals Board may be challenged or abstain for any of the reasons for which a judge may be challenged
or a b stain in acc ordanc e w i t h A r ti cle 73 4 of the Cod e of Organization and C ivil Procedure. In any such case the Minister shall appoint a person, having the qualifications of the member challenged or abstaining, to sit as
a member of the Appeals Board in substitution of the said member.
(4) A member of the House of Representatives or of a Local Council shall be disqualified from being appointed or continuing to
be a mem ber of the A ppeals Board for so lon g as he hol ds that office.
(5) The Minister shall also designate a person to serve as secretary to the Appeals Board.
(2) An appeal to the Appeals Board may be filed on any of the following grounds:
(a) that a material error as to the facts has been made; (b) that there was a material procedural error;
(c) that an error of law has been made;
(d) that there was some material illegality, including unreasonableness or lack of proportionality.
(3) The Appeals Board shall give reasons for its decision and shall cause such decisions to be made public omitting, if it deems
it appropriate for reasons of confidentiality, the names of the persons involved.
(4) In determining an appeal the Appeals Board shall take into account the merits of the appeal, an d may in whole or in part,
confirm annul or vary the decision appealed from, giving in writing the reasons for its decisi on and shall cause such decision
to be made public and communicated to the parties to the appeal.
(5) The effect of a decision to which an appeal relates shall not, except where the Appeals Board or the Court of Appeal, as the
case may be, so orders, be suspended in consequence of the bringing of the appeal.
(6) The right of appeal to the Appeals Board shall be competent to any person aggrieved by the decision:
Provided that in any case, a person making an appeal to the Appeals Board shall also require a direct interest in impugning the decision
or directive appealed from.
(7) Without prejudice to the provisions of article 31A -
(a) an appeal from a decision or directive of the Authority
shall be made by application and shall be filed with the secretary of the Appeals Board within thirty days from the date on which
the said decision or directive has been notified in writing to the party appealing or published in the Gazette whichever
is the earlier, as the case may be; and
(b) the application of appeal shall be served on the Authority, which shall not later than twenty days from such service
file its reply thereto with the secretary of the Appeals Board.
36, the decisions of the Appeals Board shall be final and binding.
(2) For the exercise of its functions, the Appeals Board may su mmon any person to appear befo re it and gi ve evidence and produce
documents; and the chairperson shall have the power to administer the oath. The Appeals Board may also appoint experts to advi ce
the Ap peals Bo ard on any techni cal issue that may be relevant to its decision.
(3) For the purposes aforesaid the Appeals Board shall have the s a me powers a s are competent to th e Fi rs t Hal l , Ci v i
l Cou r t according to law.
(4) The procedure to be followed before the Appeals Board, the t ime within which and t h e manne r in which an appeal t o the
Appeals Board is to be made shall be such as may be prescribed; and subject thereto, and to any other applicable provision to this
Act, the Appeals Board may establish its own procedure.
Powers and procedure of the Appeals Board. Amended by: XII. 2007.11.
36. Any party to an appeal to the Appeals Board who feels aggrieved by a decision of the Appeals Board, or the Authority if it feels dissatisfied with any such decision, may on a question of law appeal to the Court of Appeal as constituted in accordance with article 41(6) of the Code of Organization and Civil Procedure by means of an application filed in the registry of that court, in the case of an appeal by the Authority within thirty days from the date of the Appeals Board’s decision, and in the case of any person within thirty days from the date on which that decision has been notified to him.
(2) Any licence, permission, authority or order granted or made und er any of the provisions of the enactmen t s listed in the Schedule, and still in force immediately before the coming into force of this Act, shall continue in force thereafter as if it were a licence, permission, authority or order granted or made under a correspond ing provision of this Act, and any such licen ce, permissi on, autho rity or order as aforesai d shall be treat ed and
Appeal to the Court of Appeal. Amended by:
XII. 2007.12.
Cap. 12.
Savings. Amended by: XII. 2007.13; V. 2011.34.
dealt with accordingly.
Cap. 355. (3) The penalties prescribed under article 45(q)* of the Wa ter Services Corporation Act shall, until regulations are prescribed under article 32, be deemed to be the penalties prescribed under this said article 32.
Exemption from liability.
Added by: XII. 2007.14.
Service providers.
Added by:
XXIII. 2009.102.
Cap. 500.
39. (1) In regulating access to service activities falling under this Act and, or the exercise thereof, the Authority shall, where
su ch serv ice act i vit i es f a ll wit h in the sco p e of th e Services (Internal Market) Act:
(a) act objectively, transparently, efficiently and in a timely manner;
(b) provide information and assistance to service providers and recipients subject to the provisions of this Act;
(c) make it possible to complete all procedures and formalities relating to access to a service activity and to the exercise
thereof, available electronically through the designated point of single contact:
Provided that the requirement to make it possible to complete all procedures and formalities electronically through the point
of single contact shall not apply to the inspection of premises from which the service is provided or of equipment used by the service
provider.
(2) When a service provider is already established in another Member State, and seeks access to a service activity or the exercise
thereof in Malta:
(a) where the service activity is subject to an authorisation scheme or the fulfilment of other requirements regulating
establishment in Malta, the Authority shall not duplicate requirements or controls which are equivalent or essentially comparable
as regards their purpose which a service provider may already be subject to in another Member State where he is already established;
(b) where the Authority requires a service provider to supply a certificate, attestation or document proving that a requirement
has been satisfied in terms of this Act or regulations made thereunder:
(i) it shall accept any document from another Member State which serves an equivalent purpose or from
which it is clear that the
*Deleted by this Act.
requirement in question has been satisfied;
(ii) it may not require a document from another Member State to be produced in its original form or as a certified copy or
certified translation save in the cases provided for in a Community instrument or where such a requirement is
justified by an overriding reason relating to the public interest, including public order and public security:
Provided that the provisions of this paragraph shall not affect the right of the Authority from requesting a non- certified translation
of documentation in the Maltese or in the English language.
(3) Where the number of authorisations available for a service acti v it y i s li mited becau s e of the scarcity of availab l
e natu ral resources, technical capacity or if justified by an overriding reason relating to public interest, the Authority shall
apply a selection procedure to potential candidates in order to ensure impartiality, transparency, conditions of o p en competition,
i n cluding in p a rti c u l ar, adeq uate publi c it y about the launch, cond uct an d comp leti on of the procedure. In establ
ishin g t h e rules for th e selection procedure, the Authority may give consideration to issues relating to public health, social
policy objectives, the health and safety of employees or self-employed persons, the protection of the environment, and other overriding
reasons relating to the public interest, in conformity with Community law.
(4) An authorisation granted to a service provider shall be for an indefinite period, except where:
(a) the authorisation is being automatically renewed or is subject only to the continued fulfilment of requirements;
(b) the number of available authorisations is limited in terms of sub- article (3);
(c) a limited authorisation period can be justified by an overriding reason relating to the public interest:
Provided that in cases referred to in paragraph (b), an authorisation shall be granted for an appropriate limited period enabling the service provider to recover the cost of investment
and to make a fair return on the capital invested, which authorisation may not have an excessive duration, be open to automatic renewal
nor con f er any oth e r ad vant age on the service provider whose aut hor isat ion has ju st exp i red o r o n any person havi ng
an y particular links with that provider.
(5) An authorisation granted by the Authority shall enable the s e rvice provide r to have acces s to the s e rvice activity or
the exercise thereof throughout Malta including by means of the setting up of agencies, subsidiaries, branches or offices, except
where the authorisation for each individual establishment or a limitation of authorisation to a cer tain part of the territory is
justified by an overriding reason relating to public interest:
Provided that the service provider shall be required to inform the Authority of the creation of subsidiaries, branches, offices
or agencies whose activities fall within the scope of the authorisation scheme.
(6) In the fulfilment of its authorisation function in terms of this article, the Authority shall:
(a) acknowledge all applications requesting authorisation; (b) in case of an incomplete application, inform the
applicant as quickly as possible of the need to supply any additional information, together with the consequences which
ensue should the applicant delay
in providing the said information or requirements;
(c) process an application for an authorisation as quickly as possible and in any event within a time period which shall
be fixed and made public in advance failing which it shall be deemed that the authorisation has been granted. The period
will start to run from the day when all due information has been submitted and any other requirements and formalities have
been completed in order for the Authority to process the application:
Provided that the time period may be extended once for a limited time when justified by the complexity of the issue. The extension
and its duration shall be duly justified and given to the applicant before the original period has expired:
Provided further that the Authority may make different arrangements where objectively justified by overriding reasons relating to
the public interest including a legitimate interest of third parties;
(d) provide information regarding the means of redress available in case of non-acceptance of an application;
(e) grant an authorisation as soon as the applicant fulfils all requirements, without prejudice to the right of the Authority to
revoke or modify an authorisation when the conditions for authorisation are no longer met by the service provider;
(f) in the case of rejected applications due to failure to comply with the required procedures or formalities, inform the
applicant of the rejection as soon as possible;
(g) except in the case of the granting of an authorisation, a decision from the Authority, including refusal or withdrawal,
shall be fully reasoned and shall be open to challenge before the Appeals Board.
(7) With the exclusion of service activities and matters which are declared to be services of a general economic interest, which
inter alia may include -
(a) in the electricity sector, services covered by Directive
2003/54/ EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity;
(b) in the gas sector, services covered by Directive 2003/
55/EC of the European Parliament and of the Council
of 26 June 2003 concerning common rules for the internal market in natural gas;
(c) water distribution and supply services and waste water services,
the Authority shall respect the right of service providers that are lawfully established and providing services in another Member
State to provide services in Malta, and may not prevent them from providing such service activities by imposing requirements which
are discriminatory, unnecessary or disproportionate:
Provided that the Authority may impose requirements with regard to the provision of a particular service activity, where these are
justified for reasons relating to public policy, public security, public health or the protection of the environment:
Provided also that in establishing whether a service provider is exercising his freedom to provide services within the
meaning of this article and Arti cle 49 of the Tr eaty, or is an establishment case, or whether a service prov ider is abusiv ely
taking advantage of the freedom to provide services, the Authority shall assess and decide each case on its individual merits and
in conformity wi th Community legislat ion an d rulings of the European Court of Justice.
(8) Without prejudice to sub-article (7), in exceptional cases only, the Authority may, in respect of a service provider established
in another Me mber St ate, ta ke me asures in or der to ensure the safety of services provided in Malta. When taking such measures,
th e Author ity shall follow the proc edure establis hed under the Fourth Schedule to the Services (Internal Market) Act, and ensure the fulfilment of the following conditions:
(a) the national provisions, in accordance with which the measures are taken, have not been subject to Community harmonisation
in the field of the safety of services;
(b) the measures taken provide for a higher level of protection of the recipient than would be the case in a measure taken
by the Member State of establishment in accordance with its national provisions;
(c) the Member State of establishment has not taken any measures or has taken measures which are insufficient as compared with those
requested by the Authority and as referred to in paragraphs 2 and 3 to the Fourth Schedule to the Services (Internal Market) Act;
(d) the measures are proportionate:
Provided that the Authority, upon gaining actual knowledge of any conduct or specific acts by a service provider established in Malta
and which provides services in other Member States, which,
Cap. 500.
Cap. 500.
Cap. 500.
Cap. 500.
Cap. 500.
to its knowledge, could cause serious damage to the health or safety of persons or to the environment, shall inform all other Member
States and the European Commission within the shortest possible period of time through the Internal Market Information System.
(9) (a) The Authority shall require service providers established in Malta an d falling under its area of competence to
keep it up dat ed at al l ti mes wit h the information it identifies as necessary and objectively ju sti f ied for i t to fulfil
its superv iso r y function of services in terms of this Act and the Services (Internal Market) Act.
(b) The Authority shall exercise its supervisory functions on service providers established in Malta, and falling under its area
of competence, whether the service is provided in Malta or in another Member State.
(c) In executing its supervisory functions, when a service is being provided in another Member State by a service provider established
in Malta, the Authority shall assist the relevant competent authority of that other Member State in terms of the procedure
established in the Second Schedule of the Services (Internal Market) Act. In doing so, the Authority shall not refrain from taking supervisory enforcement measures in Malta on the grounds that a service
has been provided or caused damage in another Member State:
Provided that the Authority shall not be bound to carry out checks and controls in the Member State where the service is being provided.
(d) When a service is being provided in Malta, in the event of a temporary movement by a service provider established in
another Member State:
(i) the Authority shall participate in the supervision of the service provider in accordance with the procedure set up in the
Second Schedule to the Services (Internal Market) Act;
(ii) when the Authority has imposed requirements in terms of the first proviso to sub-article (7), it shall assume responsibility
for the supervision of that service provider in Malta in order to ensure compliance with those requirements.
(e) The Authority shall exchange requests and information with the relevant competent authorities of another Member State through
the Internal Market Information System.
(f) Without prejudice to the limitations imposed by any other law, the Authority shall supply information to the relevant competent
authority of another Member State on disciplinary or administrative actions, or criminal sanctions and decisions
concerning insolvency or bankruptcy involving fraud, which directly concern a provider, and which are directly
relevant to the provider ’s competence or professional reliability, in terms of the procedure contemplated under the
Third Schedule of the Services (Internal Market) Act.
Cap. 500.
Debt recovery procedure. Added by:
V. 2011.35.
Cap. 12.
Amended by: XII. 2007.15; V. 2011.36.
SCHEDULE (Article 37)
Petroleum (Importation, Storage and Sale) Ordinance, Cap. 25. Enemalta Act, Cap. 272.
Water Services Corporation Act, Cap. 355. Bunkering (Fuels) Tax Act, Cap. 381.
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