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Maltese Laws |
AN ACT to regulate Retirement Schemes, Retirement Funds and
Service Providers related thereto.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:-
Short title and commencement.
Act, 2011.
(2) The provisions of this Act shall come into force on such a date as the Minister responsible for finance may by notice in
the Gazette establish, and different dates may be so established for different provisions or different purposes of this
Act.
Interpretation. 2. (1) In this Act, unless the context otherwise requires -
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"advertisement" means any form or medium of advertising or promotional activity, other than a scheme document, scheme particulars
or retirement fund particulars and, without prejudice to the generality of the foregoing, includes advertising in a publication,
the display of notices, signs, labels or show cards, by means of letters, circulars, catalogues, price lists or other documents,
by the exhibition of pictures or photographic or cinematographic films, by way of sound, television or other broadcast, by
the distribution of recordings or in any other manner, the contents of which either invite persons, or contain material calculated
to induce persons to become or offer to become members in a retirement scheme or investors in a retirement fund; and references
to the issue of an advertisement shall be construed accordingly;
"beneficiary" means an individual receiving retirement benefits in accordance with the provisions of a scheme document;
"competent authority" means the Malta Financial Services Authority established by article 3 of the Malta Financial Services
Authority Act, which body shall act as the competent authority for the purposes of this Act and also for relevant
purposes of the Occupational Pensions Directive;
"contributor" means -
(a) the individual who contributes solely or partly to the retirement scheme; and, or
(b) the employer who contributes solely or partly to the retirement scheme,
for the benefit of members of the retirement scheme;
"defined benefit retirement scheme" means a retirement scheme, other than a defined contribution retirement scheme, which
has as its primary purpose that of providing for the payment of fixed or determinable retirement benefits;
"defined contribution retirement scheme" means a retirement scheme which has as its primary purpose that of providing for
the payment of retirement benefits which are established by reference to the contributions paid into such retirement scheme, the
accumulation of profits, gains and other income, after the deduction of expenses and losses in relation thereto;
"directive" means a directive issued under article 41; "document" or "documentation" includes information
recorded
Cap. 330.
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in any form and, in relation to information recorded otherwise than in legible form, references to its production include references
to producing a copy of the information in legible form;
"EEA State" means a State which is a contracting party to the agreement on the European Economic Area signed at Oporto on
the
2nd May, 1992 as amended by the Protocol signed at Brussels on the
17th March, 1993 and as amended by any subsequent acts;
Cap. 370.
"EIOPA" means the European Insurance and Occupational Pensions Authority established in terms of article 1 of Regulation
(EU) No 1094/2010 of the European Parliament and of the Council of
24 November, 2010;
"instrument" shall have the same meaning as assigned to it in the Investment Services Act;
"investor" means the retirement scheme and, or overseas retirement scheme investing in a retirement fund;
"licence" means a retirement scheme licence or a retirement fund licence or a licence of a service provider providing any
one or more of the services listed in the Schedule, and "licensing" and "licensed" shall be construed accordingly;
"licence holder" means a person or body corporate or unincorporated body holding a licence under this Act;
"Malta’s international commitments" means Malta’s commitments, responsibilities and obligations arising out of membership
of, or affiliation to, or relationship with, any international, global or regional organisations or grouping
of countries or out of any treaty, convention or other international agreement, however called, whether bilateral or multilateral,
to which Malta is a party;
"member" means a person who is entitled or will become entitled to retirement benefits in accordance with the provisions
of a scheme document;
"Member State" means a Member State of the European
Communities;
"the Minister" means the Minister responsible for finance; "Occupational Pensions Directive" means Directive 2003/41/EC
of the European Parliament and of the Council of the 3rd June, 2003 on the activities and supervision of institutions for
occupational
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retirement provision as may be amended from time to time and includes any implementing measures that may be issued thereunder;
"occupational retirement scheme" means a retirement scheme established for, or by, an employer or a number of employers
or an association representing employers, jointly or separately, for the benefit of employees;
"overseas regulatory authority” means an authority in a country or territory outside Malta which exercises any regulatory or
supervisory function in relation to financial services corresponding to a function of the competent authority as defined
in the Malta Financial Services Authority Act;
"overseas retirement scheme" means a scheme or arrangement, organized under the laws of a country outside Malta with the
principal purpose of providing retirement benefits;
"Pension Rule" means a rule issued by the competent authority in accordance with article 38(2);
"personal retirement scheme" means a retirement scheme which is not an occupational retirement scheme and to which contributions
are made for the benefit of an individual;
"prescribed" means prescribed by regulations made under this
Act in accordance with article 37;
"qualifying shareholding" means a direct or indirect holding in a body corporate which represents ten per cent or more of
the share capital issued by such body, or of the voting rights attaching to such share capital or which makes it possible to exercise
a significant influence over the management of the body corporate;
"recognition" means a recognition under this Act issued to a person carrying back-office administrative activities as established
by Pension Rules, in relation to a retirement scheme and, or retirement fund as applicable, and "recognising" and "recognised"
shall be construed accordingly;
Cap. 330.
Act;
"recognised person" means a holder of a recognition under this
"retirement benefit" means benefits paid by reference to reaching, or the expectation of reaching, retirement or, where
they are supplementary to those benefits and provided on an ancillary basis, in the form of payments on death, disability, or cessation
of employment or in the form of support payments or services in case of sickness,
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indigence or death;
"retirement fund" means an arrangement established for the principal purpose of holding and investing the contributions
made to one or more retirement schemes and, or to one or more overseas retirement schemes;
"retirement scheme" means a scheme or arrangement as defined in article 3;
"Retirement Scheme Administrator" means a person licensed to provide the retirement scheme administration services referred
to in the Schedule;
"schedule of payments" shall be construed in accordance with article 18;
"scheme document" means the written instrument evidencing or establishing a retirement scheme and which stipulates the retirement
benefits and the conditions under which these are granted;
"service" means any service falling within the Schedule, when provided in relation to an instrument; and, or any back-office
administrative activity as established by Pension Rules;
"service provider" means any person licensed under this Act to provide any one or more of the services listed in the Schedule
and, or recognised to provide any one or more of the back-office administrative activities established by Pension Rules;
Cap. 386.
Cap. 123. Cap. 372.
"Solvency II Directive" means Directive 2009/138/EC of the European Parliament and of the Council of 25 November, 2009 on
the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), as may be amended from time to time, and includes
any implementing measures that may be issued thereunder;
"subsidiary" has the same meaning as that assigned to the term
"subsidiary undertaking" under article 2 of the Companies Act; "tax" means the tax imposed by the Income Tax Acts;
"the Income Tax Acts" means collectively the Income Tax Act
and the Income Tax Management Act.
(2) In this Act and in the Schedule and in any regulations prescribed or Pension Rules issued thereunder, if there is any conflict
between the English and the Maltese texts, the English text shall prevail.
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(3) Regulations made under this Act and any amendment or revocation of such regulations, may be published in the English language
only.
(4) The objective of this Act is, in part, to implement the provisions of the Occupational Pensions Directive and relative European
Union measures, and it shall be interpreted and applied accordingly.
Licensing of Retirement Schemes
(2) A scheme or arrangement shall not constitute a retirement scheme under this Act if it provides for:
(a) the payment of retirement benefits to five or fewer members; or
(b) the commencement of payment of retirement benefits to a member on a date that is earlier than that on which such member has
attained the age of fifty, or not later than that specified in Pension Rules, except in those cases where the scheme or arrangement
provides that:
(i) the payment is made by reason of the disability or death of a member; or
(ii) the payment, in the case of an occupational retirement scheme, is made to the member without the necessity of the member’s
consent in line with any Pension Rules in the event that the member is no longer employed by the employer.
(3) A retirement scheme may be an occupational retirement scheme or a personal retirement scheme.
Definition of retirement scheme.
Requirement of licence for retirement schemes.
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(2) Subject to the provisions of sub-article (6), no retirement scheme formed in accordance with or existing under the laws of Malta
shall carry on any activity for the provision of retirement benefits in or from within a country, territory or other place
outside Malta unless duly licensed under this Act.
(3) Subject to the provisions of sub-article (6), no person shall accept money or other consideration from a contributor with respect
to a retirement scheme carrying on any activity for the provision of retirement benefits in or from within Malta unless such retirement
scheme is situated in Malta and is duly licensed under this Act.
(4) The competent authority may by notice in writing to any person determine that for the purposes of this Act, a scheme or other
arrangement is a retirement scheme -
(a) situated in Malta, or
(b) carrying on any activity in or from within Malta,
and subject to any appeal under article 44 with respect to such person, the determination by the competent authority shall be conclusive
for all purposes of this Act.
(5) For the purposes of sub-article (4), "carrying on any activity in or from within Malta" includes but shall
not be limited to, marketing, advertising or otherwise promoting, as may be further stipulated in Pension Rules.
Cap. 370.
Requirement of licence for retirement funds.
(6) No retirement scheme shall be precluded by the provisions of sub-articles (1) to (3) from taking such steps as may be necessary
for the incorporation or, as the case may be, the establishment of the retirement scheme or from taking such steps as may be necessary
for securing the licensing of the retirement scheme by the competent authority.
(7) A retirement scheme licensed under this Act shall not be subject to any licensing requirements under the Investment Services
Act.
Licensing of Retirement Funds
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(2) Subject to the provisions of sub-article (5), no retirement fund formed in accordance with or existing under the laws of Malta
shall carry on any activity in relation to a retirement scheme and, or overseas retirement scheme, in or from within a country, territory
or other place outside Malta, unless duly licensed under this Act.
(3) The competent authority may by notice in writing to any person determine that, for the purposes of this Act, a fund is a retirement
fund:
(a) situated in Malta, or
(b) carrying on any activity in or from within Malta,
and subject to any appeal under article 44 with respect to such person, the determination by the competent authority shall be conclusive
for all purposes of this Act.
(4) For the purposes of sub-article (3), "carrying on any activity in or from within Malta" includes but shall
not be limited to, marketing, advertising or otherwise promoting, as may be further stipulated in Pension Rules.
(5) No retirement fund shall be precluded by the provisions of sub-articles (1) and (2) from taking such steps as may be necessary
for the incorporation or, as the case may be, the establishment of the retirement fund or from taking such steps as may be necessary
for securing the licensing of the retirement fund by the competent authority.
(6) A retirement fund licensed under this Act shall not be subject to any licensing requirements under the Investment Services
Act.
Licensing of Service Providers
(2) No body corporate, unincorporated body or association formed in accordance with or existing under the laws of Malta, shall provide or hold itself out as providing a service in or from within a country, territory or other place outside Malta unless duly licensed under this Act.
Cap. 370.
Requirement of licence for persons providing services listed in the Schedule.
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(3) The competent authority may by notice in writing to any person determine that a service falls within the Schedule when provided
in relation to an instrument and, subject to any appeal under article 44, with respect to such person, the determination by
the competent authority, shall be conclusive for all purposes of this Act.
Requirement of recognition for persons carrying on back-office administrative activities.
Application for
a licence and, or recognition.
Power of competent authority to refuse or grant a licence or recognition.
Recognition of Service Providers
(a) contain or be accompanied by such information and particulars as the competent authority may require or as may be prescribed;
(b) be verified in the manner and to the extent required by the competent authority, or as may be prescribed.
(2) The competent authority shall not grant a licence or recognition, as the case may be, applied for under this Act, unless it is
satisfied that -
(a) in the case of a retirement scheme:
(i) it is constituted and structured in line with any Pension Rules, as applicable;
(ii) the retirement scheme and, or Retirement Scheme Administrator, as the case may be, will comply with and observe the provisions
of this Act and any
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regulations or Pension Rules made thereunder;
(iii) the retirement scheme and Retirement Scheme Administrator are fit and proper persons to carry out the functions required
of them in connection with the retirement scheme;
(iv) there is a scheme document which contains terms and conditions in line with any Pension Rules;
(v) the name of the retirement scheme is one which, in the opinion of the Authority, is not misleading;
(vi) any aspect of, or related to, the application does not raise any regulatory concerns;
(b) in the case of a retirement fund:
(i) it is constituted and structured in line with any Pension Rules, as applicable;
(ii) the retirement fund and any person, by whatever name designated, responsible for the operation, administration, and management
of the retirement fund, will comply with and observe the provisions of this Act and any regulations or Pension Rules made thereunder;
(iii) the retirement fund and any person responsible for the operation, administration and management of the retirement fund,
is a fit and proper person to carry out the functions required of it in connection with the retirement fund;
(iv) it has a constitutional document which contains terms and conditions in line with any Pension Rules;
(v) the name of the retirement fund is one which, in the opinion of the competent authority, is not misleading;
(vi) any aspect of, or related to, the application does not raise any regulatory concerns;
(c) in the case of a service provider:
(i) the applicant is a fit and proper person to provide the services concerned, and
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(ii) the applicant will comply with and observe the provisions of this Act and any regulations or Pension Rules made thereunder;
(iii) any aspect of, or related to, the application does not raise any regulatory concerns.
(3) Without prejudice to article 38, a licence or recognition granted by the competent authority shall be subject to the applicable
Pension Rules and to such conditions as the competent authority may from time to time deem appropriate.
(4) When considering whether to grant or refuse to grant a licence and, or recognition as the case may be, the competent
authority shall, in particular, have regard to:
(a) the protection of beneficiaries, members, and investors;
(b) the promotion of competition and choice; and
(c) the reputation and suitability of the applicant and in the case of the retirement scheme and, or retirement fund, the persons
responsible thereof, and all other parties connected with the retirement scheme and, or the retirement fund as the case may be.
(5) Every licence shall specify, as the case may be:
(a) the nature of the retirement scheme to which the licence relates;
(b) any service a person has been licensed to provide.
(6) Every recognition shall specify, as the case may be, the activities which the person has been recognised to provide.
(7) Without prejudice to the generality of sub-article (3), the Rules to which the competent authority shall subject a licence and,
or recognition may be made applicable to -
(a) all licences and, or recognitions granted; (b) certain categories of licences;
(c) all licences granted to certain categories of holders; (d) all licences in relation to particular services or
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retirement schemes or retirement funds, as the case may be.
(8) Within six months from the date of the submission of a properly completed application form together with the requisite documentation,
the competent authority shall inform an applicant in writing of its decision whether or not to grant a licence or recognition; and
in the case of a refusal it shall inform the applicant of the reasons for the refusal.
(9) Any requirement in this Act that a person be a fit and proper person to carry out certain activities or functions shall be interpreted
as a requirement not only that such person be a fit and proper person to carry out such activities or functions, but also that any
qualifying shareholder or director or officer of such person, or any person responsible for such activities or functions be a fit
and proper person to carry out such activities or functions.
(10) (a) Where close links exist between an applicant and any other person the competent authority shall:
(i) only grant a licence if it considers that such close links do not prevent it from exercising effectively
its supervisory functions; and
(ii) refuse to grant a licence if it considers that the laws, regulations or administrative provisions of any country outside
Malta governing one or more persons with whom the applicant has close links, or their enforcement, prevent the effective exercise
of its supervisory functions.
(b) The competent authority may from time to time, by means of a Pension Rule issued under this Act, define the circumstances in
which "close links" are to be regarded as existing between any two or more persons.
(11) The competent authority shall establish a register of all holders of a licence and, or recognition. The register, which shall
be publicly available, shall also indicate the services and, or activities in relation to which each licence and, or recognition
was issued. The register shall be updated on a regular basis. In the case of cross- border activities carried out in terms of the
Occupational Pensions Directive, the register shall also indicate the Member States or the EEA States in which the relevant licence
holder is operating, and that information shall be communicated to EIOPA.
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Power of competent authority to cancel or suspend a licence or recognition.
(2) In the case of a retirement scheme, the competent authority may cancel or suspend a licence:
(a) if it considers that the retirement scheme or the Retirement Scheme Administrator, as the case may be, is not a fit and proper
person to carry out the functions required of it in connection with the retirement scheme; or
(b) if it considers that the retirement scheme or Retirement Scheme Administrator, as the case may be, does not
comply with the provisions of this Act or of any regulations made or Pension Rules issued thereunder, or that there has been a contravention
of any such provisions, or an obligation or condition to which the retirement scheme is subject by virtue of or under this Act
has not been satisfied or complied with; or
(c) if information has been furnished to the competent authority by or on behalf of or in relation to the retirement scheme which
is false, inaccurate or misleading, or if the Retirement Scheme Administrator has concealed, or conceals from, or fails to notify
to the competent authority any document or information or change therein which it was the Retirement Scheme Administrator’s duty
to reveal or to notify under this Act and any regulations made thereunder or any Pension Rules; or
(d) if the retirement scheme or the Retirement Scheme Administrator, as the case may be, has not commenced to provide the activities
it has been licensed to carry on within the time provided for in the licence or has ceased to carry on such activities; or
(e) if it considers it desirable to cancel or suspend the licence for the protection of beneficiaries, members,
or investors; or
(f) at the request of the retirement scheme or
Retirement Scheme Administrator, as the case may be; or
(g) in any of the circumstances under which the competent authority would have been precluded from issuing the licence
under this Act or where under this Act it would have been entitled to refuse to grant such a licence.
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(3) In the case of a retirement fund, the competent authority may cancel or suspend a licence:
(a) if it considers that the retirement fund or any person, by whatever name designated, responsible for the operation, administration
and management of the fund, as the case may be, is not a fit and proper person to carry out the functions required of it in connection
with the retirement fund;
(b) if it considers that the retirement fund to which the licence refers and, or any person, by whatever name designated, responsible
for the operation, administration and management of the retirement fund, as the case may be, does not comply with the provisions
of this Act or of any regulations made or Pension Rules issued thereunder, or that there has been a contravention of any such provisions,
or an obligation or condition to which the retirement fund is subject by virtue of or under this Act, has not been satisfied or complied
with; or
(c) if information has been furnished to the competent authority by or on behalf of or in relation to the retirement fund which
is false, inaccurate or misleading; or
(d) if the retirement fund or any person, by whatever name designated, responsible for the operation, administration and management
of the retirement fund, as the case may be, has not commenced the activities it has been licensed to carry on within the time provided
for in the licence or has ceased to carry on such activities; or
(e) if it considers it desirable to cancel or suspend the licence for the protection of beneficiaries, members
or investors; or
(f) at the request of the retirement fund or any person responsible for the operation, administration and management of the fund
as the case may be; or
(g) in any of the circumstances under which the competent authority would have been precluded from issuing the licence
under this Act or where under this Act it would have been entitled to refuse to grant such a licence.
(4) In the case of a service provider, the competent authority may cancel or suspend a licence and, or recognition as the case may
be:
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(a) if it considers that the service provider is not a fit and proper person to provide any service he is licensed and, or recognised
to provide; or
(b) if it considers that the service provider thereof does not fulfil the requirements of, or has contravened, any of the provisions
of this Act or of any regulations made or Pension Rules issued thereunder, or has failed to satisfy or comply with any obligation
or condition to which he is subject by virtue of or under this Act; or
(c) if the competent authority has been furnished by or on behalf of the service provider with information which is false, inaccurate
or misleading; or
(d) if the service provider has not commenced to provide the service he has been licensed and, or recognised to provide
within the time provided for in the licence and, or recognition or has ceased to provide such service; or
(e) if it considers it desirable to cancel or suspend the licence and, or recognition for the protection of beneficiaries, members
or investors; or
(f) at the request of the service provider; or
(g) in any of the circumstances under which the competent authority would have been precluded from issuing the licence
and, or recognition as the case may be, or where under this Act it would have been entitled to refuse to grant such a licence and,
or recognition; or
Notification of proposed refusal, variation, cancellation or suspension of a licence and, or recognition.
(h) if the service provider thereof has obtained the licence and, or recognition by making false statements or by any other irregular means.
(a) to vary any condition to which a licence and, or recognition is subject or to impose a condition thereon; or
(b) to refuse an application for a licence and, or recognition or to cancel or to suspend a licence and, or recognition,
it shall give the applicant or, as the case may be, to the licence holder and, or recognised person, or in the case of a retirement
scheme to the Retirement Scheme Administrator, or in the case of a retirement fund
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to any person, by whatever name designated, responsible for the operation, administration and management of the retirement fund,
as the case may be, a notice in writing of its intention to do so, such notice setting out the reasons for its proposed action.
(2) Every notice given under sub-article (1) shall state that the recipient of the notice may, within such reasonable period after
the service thereof as may be stated in the notice (being a period of not less than forty-eight hours and not longer than thirty
days), make representations in writing to the competent authority giving reasons why the proposed decision should not be taken, and
the competent authority shall consider any representation so made before arriving at a final decision.
(3) The competent authority shall as soon as practicable notify its final decision in writing to any of the persons to whom notice
is to be given under sub-article (1).
(4) Any decision to prohibit the activities of a licence holder shall also be notified to EIOPA.
(2) Any person, by whatever name designated, responsible for the operation, administration and management of the retirement fund, shall act in the best interests of the retirement fund and may not use the assets of the retirement fund for its own or other purposes.
Requirement for a Retirement Scheme Administrator.
General duty for any person responsible for a retirement scheme or fund.
Liability.
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appointing it, the deed or other instrument establishing or regulating the retirement scheme or retirement fund, the conditions of
licensing which may be required by the competent authority, and such other requirements as may be laid down by the latter from time
to time.
(2) The liability of -
(a) the Retirement Scheme Administrator and any person, by whatever name designated, responsible for the operation,
administration and management of the retirement fund; and, or
(b) the service provider,
shall not be diminished if it has entrusted or delegated to a third party some or all of its duties, functions and responsibilities.
Delegation. 15. A Retirement Scheme Administrator, or a retirement fund, as the case may be, may delegate one or more of its duties to a service provider or similar entity, subject to any applicable Pension Rules.
Auditors and actuaries.
Assets, permitted investments and borrowing powers of a retirement scheme.
(2) Every auditor and actuary of a licence holder or recognised person, as the case may be, shall have the right to demand such information or explanations as he deems necessary in the performance of his duties from any officer or employee of, or any person under an appointment from that licence holder or recognised person as the case may be.
RETIREMENT SCHEMES
(2) A retirement scheme shall comply with such requirements in terms of Pension Rules, with regards to the investment, management, accounting and valuation of its assets and the extent to
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which it may borrow money.
(a) the rates of contributions payable towards the retirement scheme by or on behalf of any employer and, or where applicable,
by any other contributors to the retirement scheme;
(b) the dates on or before which such contributions are to be paid; and
(c) such other matters as may be prescribed.
(2) Any employer of a scheme obliged to contribute solely or partly to an occupational retirement scheme who fails to effect such
payment on or before the due date specified in the schedule of payments shall be guilty of an offence.
(3) A Retirement Scheme Administrator and any actuary of an occupational retirement scheme shall, where any amounts payable by or
on behalf of the employer of the retirement scheme in accordance with the schedule of payments have not been paid on or before the
due date:
(a) give notice of that fact to the members and the competent authority at the earliest opportunity; and
(b) take all such measures as may be necessary or appropriate to make the defaulting employer rectify the situation.
(4) A Retirement Scheme Administrator of an occupational retirement scheme shall notify the competent authority in writing of any
such measures that have been taken or are being taken in terms of this article, at the earliest opportunity.
Schedule of payments of occupational retirement schemes.
Payment of contributions for occupational retirement schemes.
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Cap. 12. Reporting
requirements of
retirement
schemes.
Disclosure of retirement scheme information.
Scheme document as binding agreement.
Unenforceabilit y of unlicensed retirement schemes.
(5) The provisions of this article shall be without prejudice to the right of the Retirement Scheme Administrator to recover the amount remaining unpaid by the employer as debts which are certain, liquidated and due under Title III of Part I of Book Second of the Code of Organization and Civil Procedure.
(2) A retirement scheme and Retirement Scheme Administrator shall comply with any other disclosure requirements as may be required by Pension Rules, including the type of documents to be issued, the form and content of any document that may be required and to whom such documents are required to be provided.
(2) In cases falling under sub-article (1), where such property cannot be so recovered, such contributor shall be entitled to have
it replaced by its value at the time of the agreement, together with compensation for any loss sustained by him in consequence of
such payment or transfer or the non-recovery of the property transferred and any profits that may have accrued as a result of that
money or other property having been transferred by him.
(3) The provisions of sub-articles (1) and (2) shall be without prejudice to any liability which may arise under any other law.
(4) The provisions of sub-articles (1) and (2) shall not apply to a retirement scheme which is specifically exempted from licensing
under this Act in terms of regulations made under this Act.
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Provided that nothing in this sub-article shall be deemed to deprive any creditor of such contributor of any rights granted to a creditor
under article 1144 of the Civil Code.
(2) Except as may be prescribed under this Act, every agreement that is made by a contributor to transfer, dispose of, pledge
or otherwise charge his interest in the retirement scheme shall be void.
Assignment or attachment of retirement scheme assets.
Cap. 16.
Defined Benefit Occupational Retirement Schemes
(2) Where in the case of a defined benefit retirement scheme, which is an occupational retirement scheme, it appears to the Retirement
Scheme Administrator or the retirement scheme actuary, at the end of such period as may be prescribed that the technical funding
requirement is not met, such Retirement Scheme Administrator or actuary, as the case may be, shall give written notice to the competent
authority of that fact together with such information as may be prescribed relating to the failure to meet that requirement.
Retirement Funds
27. (1) The assets of the retirement fund shall be used for the exclusive purpose of providing retirement benefits to the beneficiaries
of the retirement schemes or the overseas retirement schemes which have invested in such retirement fund, and of defraying
the expenses as are allowable under this Act of such retirement scheme, or the bona fide expenses of the overseas retirement scheme, as applicable.
(2) A retirement fund shall comply with such requirements in terms of Pension Rules, with regard to the
Distributions by retirement schemes.
Technical funding requirement
Assets, permitted investments and borrowing powers of a retirement fund.
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Reporting requirements by retirement
funds.
Disclosure of retirement fund information.
Payment of periodic fees.
Changes in information.
Notification of new or increased control.
investment, management, accounting and valuation of its assets and the extent to which it may borrow money.
General
(a) the competent authority has, before the end of the period of three months beginning with the service of that notice, notified
him in writing that there is no objection to his acquiring or increasing such shareholding; or
(b) that period has elapsed without the competent authority having served on him a notice of objection; or
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(c) the competent authority has, before the end of the said period of three months, served a notice of objection which has subsequently
been withdrawn, cancelled or quashed for any reason:
Provided that, the acquisition or increase of the qualifying shareholding takes place within one year following the event mentioned
in paragraph (a), (b) or (c), as the case may be:
Provided further, that in the case envisaged in the aforesaid paragraph (c), the aforesaid period of one year shall commence to run
from the date that the person concerned has been notified of the withdrawal, cancellation or quashing of the notice of objection,
as the case may be.
(2) A notice served on the competent authority under sub- article (1) shall contain such information as the competent authority
may direct and the competent authority may, after receiving such a notice from any person, by notice in writing require him to provide
such additional information or documents as the competent authority may reasonably require for deciding whether to serve a notice
of objection.
(3) Where additional information or documents are required from any person by a notice under sub-article (2), the time between the
giving of the notice and the receipt of the information or documents shall be added to the period mentioned in sub-article
(1)(a).
(4) Every notice of objection mentioned in sub-article (1)(b) shall state the reasons for such objection and shall state that the
recipient of the notice may, within such reasonable period after the service thereof as may be stated in the notice (being a period
of not less than forty-eight hours and not longer than thirty days), make representations in writing to the competent authority giving
reasons why the notice of objection should be withdrawn; and the competent authority shall consider any representations so made before
arriving at a final decision.
(5) The competent authority shall notify its final decision in writing to the person who makes representations in writing under sub-
article (4), within thirty days of receipt of representations as provided for in the said sub-article (4).
(6) Any person who proposes to sell or dispose, directly or indirectly, of a qualifying shareholding in a service provider or to reduce
his qualifying shareholding so that the proportion of the voting
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rights or of the share capital held by him in the service provider would fall below 20 per cent, 30 per cent or 50 per cent, or so
that the service provider would cease to be his subsidiary, must inform the competent authority in writing stating his intention
to sell, dispose of or reduce his shareholding and stating the size of his shareholding following such sale, disposal or reduction.
(7) Immediately on becoming aware of any proposed or actual acquisition or disposal of part or all of a shareholding in its share
capital in any of the circumstances dealt with in this article, a service provider shall inform the competent authority in writing.
(8) Where the influence exercised by a person acquiring or proposing to acquire a part of the share capital is likely to be prejudicial
to the sound and prudent management of a service provider, the competent authority may issue a notice of objection, and
exercise any of the powers assigned to it under this Act, including the power to issue directives, as it may deem reasonable and
appropriate in the circumstances.
(9) A copy of any notice served on the person concerned in terms of sub-article (8) shall be served on the company to whose shares
it relates.
(10) Without prejudice to the provisions of article 48, where a shareholding in a service provider is acquired despite the objection
of the competent authority, the exercise of the corresponding voting rights shall be suspended and any votes cast in contravention
of this sub-article shall be null and void.
(11) If the acquirer of the qualifying holding referred to in this article is -
(a) a person holding a licence or an equivalent authorisation from an overseas regulatory authority, or
(b) the parent undertaking of a person referred to in paragraph (a), or
(c) any person controlling a person referred to in paragraph (a),
and if, as a result of that acquisition, the service provider in which the acquirer proposes to acquire a holding would become the
acquirer’s subsidiary or come under his control, the assessment of the acquisition by the competent authority must be
the subject of prior consultation with the overseas regulatory authority taking into
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account Malta’s international commitments.
Reporting Duties
(a) is likely to lead to a serious qualification of, or refusal to issue, the auditor’s or actuary’s report on such
licence holder or recognised person; or
(b) constitutes or is likely to constitute a material breach of the legal or regulatory requirements applicable to a licence holder
or recognised person in or under this Act; or
(c) seriously impairs the licence holder’s or recognised person’s ability to meet the current or future liabilities attributable
to it; or
(d) negatively and materially affects the interests of members and beneficiaries; or
(e) relates to any other matter which may be prescribed. (2) An auditor or an actuary of a licence holder or recognised
person, as applicable, shall report to the competent authority any facts
or decisions as specified in sub-article (1) of any person having close links with such licence holder within the meaning of article
9, of which he becomes aware in his capacity as auditor or actuary of the licence holder or recognised person or of the person having
such close links.
Compliance with tax requirements.
Advertisements.
Auditors’ and actuaries’ duty to report.
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(3) The matters which may be prescribed for the purpose of sub-article (1)(e) may include matters related to persons or entities
other than a retirement scheme or retirement fund, including but not limited to any person providing any one or more of the services
listed in the Schedule and, or back-office administrative activities as established by Pension Rules.
(4) The competent authority may require a licence holder or recognised person, as applicable, to change its appointed auditor or
actuary where, in the competent authority’s opinion, such auditor or actuary is considered unfit for this appointment, at any time
during his term of office.
Duty to report. 36. (1) If a retirement scheme or Retirement Scheme Administrator or retirement fund or any person, by whatever name designated, responsible for the operation, administration and management of the retirement fund, or any service provider of any retirement scheme or retirement fund knows, believes or otherwise suspects that any duty relevant to the operation of the retirement scheme or retirement fund imposed under this or any other law on any person acting in connection with the retirement scheme or retirement fund has not been or is not being complied with, he must immediately give a written report on the matter to the competent authority.
(2) The competent authority may by directive disqualify a person from its position if it appears to the competent authority that the person has failed to comply with sub-article (1).
Minister’s powers.
General Provisions
(a) amend any of the definitions contained in article 2 and amend the Schedule;
(b) regulate retirement schemes and retirement funds, as well as the services provided and activities carried on in conjunction
therewith or in relation thereto and provide for any matter he may deem expedient and may in particular grant rights to
the members, beneficiaries and investors in respect of such retirement schemes and funds, as the case may be, and
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regulate the exercise thereof; provide for and regulate the payment of such fees and other charges as may be prescribed; regulate
any fees and, or any other charges imposed directly or indirectly on members, beneficiaries or investors; provide for the safekeeping
and custody of the property of retirement schemes and retirement funds; provide for the protection of the property of the retirement
scheme or retirement fund in the event of the insolvency of the custodian as may be applicable, and for the purpose of this paragraph
"custodian" shall include a sub-custodian; provide for and regulate the appointment of employee representation in the governance
of retirement schemes; regulate the appointment and, or removal of a Retirement Scheme Administrator or any other person, by whatever
name designated, responsible for the operation, administration and management of the retirement scheme and, or retirement fund; establish
the nature and classification of retirement schemes and funds and prescribe conditions pertaining thereto; regulate the dissolution
and, or liquidation of retirement schemes and retirement funds;
(c) establish or make other arrangements for the compensation of members and, or beneficiaries or investors in cases where a retirement
scheme or retirement fund is unable to satisfy claims in respect of any liability incurred by it; regulate the management and the
financing of any such arrangements and the contributions and levies to be paid thereto; set the minimum and maximum levels
of compensation payable thereunder and may under such arrangements distinguish between different classes of investors, members or
beneficiaries and exclude certain classes from compensation and to make provision for the regulation of and for other aspects related
to such arrangements and may moreover provide that such arrangements as may be prescribed shall have a legal personality
distinct from that of the contributors thereto and of the competent authority and provide for the judicial and legal representation
thereof; and such arrangements shall be exempt from the payment of income tax as from the date of establishment of such retirement
schemes or retirement funds;
(d) prescribe the circumstances when and the conditions under which a scheme document becomes binding on members and beneficiaries;
(e) define the criteria for determining whether a holding is an indirect holding for the purposes of determining whether a qualifying
shareholding exists;
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(f) exempt any person, retirement scheme and, or retirement fund (including such class or type or description thereof as
may be prescribed) or other licence holders or recognised persons, or advertisement from any one or more of the provisions of this
Act and subject to such conditions or other requirements, including other forms of authorisation and notification procedures, as
may be prescribed;
(g) regulate the segregation of the assets of retirement schemes and retirement funds and the provision of any matter consequential,
incidental to or connected therewith;
(h) establish the circumstances when ring fencing measures may be applied and the measures and conditions applicable
to retirement schemes and, or retirement funds in this regard;
(i) establish and regulate the maintenance of funding requirements by retirement schemes; prescribe regulations regarding the
maintenance of a schedule of payments by retirement schemes or by service providers on behalf of retirement schemes; regulate the
manner in which a defined benefit retirement scheme deals with surplus funds and underfunding;
(j) regulate the payment (including the time thereof), nature and amount of benefits which may or may not be paid to beneficiaries
and, or members;
(k) provide for and regulate the payment by any person, body, retirement scheme or retirement fund, or service provider as the
case may be, of licence or recognition fees or other fees and such other charges payable to the competent authority in respect of
any matter provided for, by or under this Act or any regulations made under this article, as may be prescribed;
(l) transpose, implement and give effect to the provisions and requirements of the Occupational Pensions Directive
and of the Solvency II Directive insofar as applicable to occupational pensions, and any other legislative measures of the European
Union requiring transposition and, or implementation as may be amended from time to time, and including any implementing measures
issued thereunder as may be applicable to retirement schemes;
(m) provide for and regulate the vesting, acquisition, preservation of retirement rights and any matter ancillary
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thereto;
(n) regulate the provision of personal retirement schemes and establish conditions for the provision thereof as well
as determine the application or non-application of certain provisions of the Act to such retirement schemes;
(o) prescribe circumstances and, or conditions regarding the transfer, disposal, charging, assignment, surrender, termination
and, or forfeiture of pension rights and, or benefits; in particular prescribe the circumstances in which, and the conditions subject
to which: a beneficiary may transfer his accrued rights from one retirement scheme to another; and a retirement scheme may transfer
the liabilities attributable to it to another retirement scheme; and a retirement scheme may provide for the payment of a
retirement benefit in the form of a lump sum and, or an annuity; and a contributor may transfer, dispose of or charge his interest
in a retirement scheme;
(p) provide for any matter incidental to or connected with any of the foregoing paragraphs;
(q) provide for any matter that may or is to be prescribed under any provision of this Act.
(2) Regulations made under this article may also contain provision for enabling a member, beneficiary, contributor and generally
any person who has entered, or offered to enter, into a retirement scheme, to rescind the agreement or withdraw the offer within
such period and in such manner as may be prescribed.
(3) Any regulations made under this article may be made subject to such exemptions or conditions as may be specified therein,
may make different provision for different cases, circumstances or purposes and may give to the competent authority such powers of
adaptation of the regulations as may be therein specified.
(4) Where regulations have been made in terms of this article, the competent authority may issue Pension Rules for the better carrying
out and to better implement the provisions of the regulations.
(5) The exercise of any of the powers assigned under this article shall be subject to any obligations or rights arising
from Malta’s international commitments.
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Powers of the competent authority.
(2) For the better carrying out of the provisions of this Act, the competent authority may, from time to time, issue, amend, or
revoke Pension Rules which shall be binding on licence holders and, or recognised persons under this Act and others as may be specified
therein and may relate to a particular class of retirement scheme and, or retirement fund or persons or situations or to persons
and situations generally. Such Pension Rules may lay down additional requirements and conditions in relation to activities of that
licence holder or recognised person, the conduct of their business, their relations with members, beneficiaries, investors, the public
and other parties as may be applicable, their responsibilities to the competent authority, reporting requirements, financial resources,
capital adequacy and related requirements, and any other matters as the competent authority may consider appropriate, in
particular in relation to the following:
(a) the legal form and constitution of retirement schemes and, or retirement funds, the governance, structuring and
management of such retirement schemes and, or retirement funds;
(b) the appointment and removal, qualifications and experience of the Retirement Scheme Administrator and, or any person, by whatever
name designated, responsible for the operation, administration and management of the retirement scheme and, or fund; and any service
provider of any such retirement scheme and retirement fund;
(c) the powers and duties of the Retirement Scheme Administrator and, or any person, by whatever name designated,
responsible for the operation, administration and management of the retirement scheme and, or retirement fund and any service provider
of any such retirement scheme and, or retirement fund;
(d) the management and valuation of the assets and obligations of the retirement scheme and retirement fund;
(e) the restriction or prohibition of the free disposal of
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the assets of a retirement scheme falling within such description as may be prescribed, when in particular -
(i) that retirement scheme has failed to establish sufficient technical provisions in respect of the entire business or has insufficient
assets to cover the technical provisions;
(ii) that retirement scheme has failed to hold any regulatory own funds as may be applicable,
in accordance with the procedure established under article 17B of the Malta Financial Services Authority Act with respect to freezing
of assets;
(f) employee representation in retirement schemes;
(g) the provision of personal retirement schemes and the regulation thereof;
(h) the form and content of applications to the competent authority for licensing or recognition or other purposes
in terms of this Act; the format, content or amendment of a scheme document, the constitutional document of a retirement fund, scheme
particulars and fund particulars;
(i) the requirements for recognition and generally the provision of such back-office administrative activities; establishing
which activities constitute back-office administrative services for the purpose of recognition of such activities in terms of article
7 and providing generally for any matter ancillary or connected with the provision of such activities;
(j) provisions on financial resources requirements applicable to licence holders and, or recognised persons as the case may be;
(k) reporting and disclosure requirements, including the preparation of periodical reports with respect to retirement schemes
and retirement funds and the furnishing of those reports to the competent authority, members, beneficiaries or investors
as the case may be;
(l) providing for and establishing the requirements regarding the unitisation of certain classes and nature of retirement schemes
and, or retirement funds;
Cap. 330.
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(m) establishing circumstances and conditions applicable regarding the transfer of retirement benefits;
(n) establishing conditions and requirements regarding the payment of expenses by retirement schemes and, or retirement funds;
Cap. 386.
(o) establishing conditions and requirements regarding the payment by means of a cash lump sum to a member without the necessity
of the member’s consent in the event that the member is no longer employed by the employer;
(p) without prejudice to the provisions of the Companies Act, establishing the persons who may act as
auditors of licence holders and, or recognised persons or providing that the persons who may so act shall be persons with professional
qualifications or experience as may be established or such other persons as are approved by the competent authority; without prejudice
to the provisions of the Companies Act, making provisions relating to the appointment, resignation and removal of auditors of licence
holders and, or recognised persons as applicable and the duty of a licence holder or recognised person to make documents available
to the auditors of such licence holder or recognised person as applicable;
(q) establishing the persons who may act as actuaries of retirement schemes or provide that the persons who may so act shall be
persons with professional qualifications or experience as may be established or such other persons as are approved by the competent
authority; make provisions relating to the appointment, resignation and removal of actuaries of retirement schemes and the duty of
a retirement scheme or Retirement Scheme Administrator or any person, by whatever name designated, responsible for the operation,
administration and management of the retirement scheme, to make documents available to the actuary of such retirement scheme;
(r) setting minimum standards and requirements which are to be observed by licence holders when issuing or approving advertisements
in accordance with article 34, including provision for such exemptions or conditions as may be specified and different
provision for different cases or classes of cases, under such terms and conditions as may be established; imposing such conditions,
limitations and restrictions on a licence holder with respect to the issue, as it may consider appropriate;
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(s) issuing Pension Rules to regulate occupational schemes established by associations of employers;
(t) issuing Pension Rules regulating the contribution of money or other consideration to retirement schemes.
(a) any contributor, any service provider or any person who is or was providing, or who appears to be or to have been providing
a service to a retirement scheme, a retirement fund or overseas retirement scheme, or who appears to be or have been carrying on
activities in connection with a retirement scheme, a retirement fund or overseas retirement scheme; or
(b) any contributor, service provider or person who has issued, or appears to have issued an advertisement falling within the
provisions of article 34; or
(c) any retirement scheme or retirement fund; or
(d) any other contributor, service provider or any other person who appears to be in possession of relevant information,
to do all or any of the following:
(i) to furnish to the competent authority, at such time and place and in such form as it may specify, such information and documentation
as it may require, with respect to any service, such retirement scheme or retirement fund or advertisement as aforesaid,
or with respect to any person with whom the licence holder has close links within the meaning of article 9;
(ii) to furnish to the competent authority any information or documentation aforesaid verified in such manner as it may specify;
or
(iii) to attend before the competent authority, or before a person appointed by it, at such time and place as it may specify, to
answer questions and provide information and documentation with respect to any such service, retirement scheme or retirement fund
or advertisement or with respect to any person with whom the licence holder has close links within the meaning of article 9.
(2) The competent authority may take and retain copies of any
Power of competent authority to obtain information.
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documents furnished or provided under this article.
(3) Where the person required to provide information or documentation under this article does not have the relevant information or
documentation, he shall disclose to the competent authority where, to the best of his knowledge, that information or documentation
is, and the competent authority may require any person, whether indicated as aforesaid or not, who appears to it to be in
possession of that information or documentation, to provide it.
Cap. 9.
Cap. 204.
Appointment of inspectors.
(4) A statement made and documentation provided in pursuance of any requirement under this article may be used in evidence
against the person making the statement or providing the documentation as well as against any person to whom they relate.
(5) The provisions of this article shall not apply to information or documentation which is privileged in accordance with the provisions
of article 642 of the Criminal Code.
(6) The power to require the production of documentation under the provisions of this article shall be without prejudice
to any lien or charge claimed by any person in relation to such documentation.
(7) Where the competent authority has appointed a person under article 40(1), such person shall, for the purposes of carrying
out his functions under his appointment, have all the powers conferred on the competent authority by this article and a requirement
made by him shall be deemed to be and have the same force and effect as a requirement by the competent authority.
(8) Without prejudice to the other provisions of this article, a holder of a licence or recognition may be required to submit to
the Central Bank of Malta such information as the Bank may reasonably require for the discharge of its duties under the Central Bank
of Malta Act.
(2) An inspector appointed under sub-article (1) -
(a) may also, if he thinks it necessary or expedient for the purposes of that investigation, investigate the affairs of any retirement
scheme, retirement fund, service provider, overseas
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retirement scheme or person, mentioned in sub-article (1);
(b) shall have and may exercise all the powers conferred on the competent authority by article 39, and any requirement made by
him shall be deemed to be and have the same force and effect as a requirement by the competent authority; and
(c) may, and if so directed by the competent authority shall, make interim reports and on the conclusion of his investigation
shall make a final report to the competent authority.
(3) The competent authority shall have power to order that all expenses of, and incidental to, an investigation pursuant to this
article be paid by the retirement scheme, retirement fund, service provider, overseas retirement scheme or person concerned.
(2) Without prejudice to the generality of the foregoing provisions of this article, a directive under this article may -
(a) require anything to be done or be omitted to be done, or impose any prohibition, restriction or limitation, or any
other requirement, and confer powers, with respect to any transaction or other act, or to any assets, or to any other thing whatsoever;
(b) require a retirement scheme, or a retirement fund and any other person who may issue or redeem units or shares in the retirement
scheme or retirement fund, as the case may be, to cease the issue or redemption of units or shares or all or any combination of those
activities, as may be specified in the directive;
(c) require that any person having functions in relation to the holder of a licence or recognition be removed or removed and
replaced by another person acceptable to the competent authority;
Power to issue directives.
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(d) require a retirement scheme or Retirement Scheme Administrator or any person, by whatever name designated, responsible
for the operation, administration and management of the retirement scheme or retirement fund as applicable, to wind up the retirement
scheme or retirement fund by such date and in accordance with such procedure and other provisions as may be specified in the directive;
(e) require a retirement scheme or retirement fund or service provider or any person who is or was providing, or who appears
to be or to have been providing a service, to cease operations and to wind up its affairs, in accordance with such procedures and
directions as may be specified in the directive, which may provide for the appointment of a person to take possession and control
of all documents, records, assets and property belonging to or in the possession or control of the retirement scheme or retirement
fund or service provider or such other person;
(f) require the cessation of any practice that is contrary to the provisions adopted in the implementation of the Occupational
Pensions Directive.
(3) Where the competent authority is satisfied that the circumstances so warrant, it may at any time make public any directive
it has given under any of the provisions of this article.
(4) The power to give directives under this article shall include the power to vary, alter, add to or withdraw any directive, as
well as the power to issue new or further directives.
Right of entry. 42. (1) Any officer, employee or agent of the competent authority, on producing, if required, evidence of his authorisation, may enter premises occupied by a person on whom a notice has been served under article 39 or whose affairs are being investigated under article 40, for the purpose of obtaining there the information or documents required by that notice, or otherwise for the purpose of the investigation, and of exercising any of the powers conferred by the said articles.
(2) Where any officer, employee or agent of the competent authority has reasonable cause to believe that if such notice as is referred to in sub-article (1) were served it would not be complied with or that any documents to which it could relate would be removed, tampered with or destroyed, such person may, on producing, if required, evidence of his authorisation, enter any premises referred to in sub-article (1) for the purpose of obtaining
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there any information or documents, being information or documents that could have been required under such notice as is referred
to in sub-article (1).
(3) For the purposes of any action taken under the provisions of this article, the competent authority may request the assistance
of the Commissioner of Police, who shall for such purpose exercise such powers as are vested in him for the prevention of offences
and the enforcement of law and order.
(a) the power to impose, revoke or vary conditions on the licence or recognition granted pursuant to the provisions of article
9(3);
(b) the power to cancel or suspend a licence or recognition under article 10(1);
(c) the power to require information and documentation under article 39;
(d) the power to appoint inspectors under article 40; (e) the powers of intervention under article 41;
(f) the powers of entry under article 42;
(g) the power to communicate to the overseas regulatory authority information which is in the possession of the competent
authority, whether or not as a result of the exercise of any of the above powers.
(2) The competent authority shall exercise powers by virtue of this article:
(a) where the assistance is requested by the overseas regulatory authority for the purpose of the exercise of one or more of
its regulatory functions; or
(b) where so required within the terms of Malta’s international commitments; or
(c) where so required within the terms of undertakings assumed in bilateral or multilateral agreements for the exchange of information
and other forms of collaboration with overseas
Co-operation with overseas regulatory authorities and EIOPA.
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regulatory authorities, including a request arising under a memorandum of understanding concluded with the competent authority.
(3) The competent authority shall cooperate with EIOPA for the purposes of the Occupational Pensions Directive in accordance with
Regulation (EU) No 1094/2010. The competent authority shall, without delay, provide EIOPA with all information necessary to carry
out its duties under the Occupational Pensions Directive and under Regulation (EU) No 1094/2010, in accordance with Article 35 of
that Regulation.
Appeals. Cap. 330.
21 of the Malta Financial Services Authority Act with respect to:
6(3);
(a) any notice in accordance with articles 4(4), 5(3) and
(b) any failure to inform an applicant within the terms of article 9(8);
(c) any refusal, variation, cancellation or suspension of a licence or recognition under articles 9, 10 and 11;
(d) any decision under article 32(5);
(e) any directive given under article 41; or
(f) any administrative penalty or other measures imposed under article 46.
(2) An appeal made under this article shall not suspend the operation of any decision or directive from which the appeal is made:
Provided that a decision to cancel a licence or recognition 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.
Cap. 330. (3) The provisions of article 21 of the Malta Financial
Services Authority Act shall apply mutatis mutandis to appeals made
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to the Tribunal under this Act.
(a) that there is reasonable likelihood that a person will contravene any of the provisions of this Act or any regulations or
Pension Rules made thereunder, or will contravene or fail to comply with any condition, obligation, requirement, Pension Rules, or
directive made or given under any of the provisions of this Act; or
(b) that a person has contravened any such provision or has contravened or failed to comply with any such condition, obligation,
requirement, Pension Rules, or directive and that steps could be taken to remedy the contravention or failure,
the Court may give such orders as it may deem appropriate to restrain the contravention or, as the case may be, to require the person
referred to in paragraph (a) or (b), or any other person who appears to the Court to have been knowingly concerned in the contravention,
to take such steps as the Court may direct.
(2) If, on an application made under sub-article (1), the Court is satisfied that a person has entered into any transaction in contravention
of any of the provisions of this Act or any regulations or Pension Rules made thereunder, the Court may order that person and any
other person who appears to the Court to have been knowingly concerned in the contravention, to take such steps as the
Court may direct for restoring the parties to the position in which they were before the transaction was entered into.
(3) If, on application made under sub-article (1), the Court is further satisfied that -
(a) profits have accrued to any person as a result of the contravention; or
(b) a shareholder, contributor, member or a beneficiary or an investor has suffered loss or been otherwise adversely affected
as a result of that contravention,
the Court may order the person responsible for the contravention to pay into Court such sum as appears to it to be just having regard
to the extent of the profit, loss or adverse effect as aforesaid, and order such sum to be paid out as the Court may direct to the
persons who have entered into transactions as a result of which profits have accrued or losses or adverse effects have been suffered
as aforesaid.
Powers of the Court in the case of a likely contravention.
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(4) For the purposes of this article the Court may order the production by any person of such accounts and the provision of such
information, and authenticated in such manner, as the Court may deem appropriate.
Administrative penalties and other measures.
(5) The provisions of this article shall be without prejudice to any right of any aggrieved person to bring proceedings directly in respect of any right such person may otherwise have independently of the competent authority.
(2) Pension Rules may provide for the imposition of administrative penalties or other measures that may be imposed by the competent
authority on licence holders, recognised persons or others, as may be specified, whether in the form of a fixed penalty, a daily
penalty, or both, for any breach of the rules.
(3) The imposition by the competent authority of an administrative penalty in terms of this article shall be without prejudice to
any other consequence of the act or omission of the offender under civil or criminal law:
Provided that, in all cases where the competent 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 under this Act, no proceedings may
be taken or continued against the said person in respect of such criminal offence.
(4) The competent authority may, by means of a public statement, disclose the name of the person sanctioned, the particular breach
of the provision of this Act, regulations or Pension Rules made thereunder, and the penalty or administrative measure imposed. The
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competent authority shall withhold such public disclosure where it deems that such disclosure would seriously jeopardise the financial
markets or cause disproportionate damage to the parties involved.
(5) The imposition by the competent authority of an administrative measure in terms of this article shall be without prejudice to
any other consequences of the act or omission of the offender under civil or criminal law:
Provided that, in all cases where the competent authority imposes an administrative measure consisting of 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
under this Act, no proceedings may be taken or continued against the said person in respect of such criminal offence.
46, the competent authority shall in its decisions state the grounds on which such decisions have been based.
(2) Any person who for the purposes of, or pursuant to, any of the provisions of this Act or of any regulations made thereunder,
or any condition, obligation, requirement or Pension Rules or directive made or given as aforesaid, furnishes information or makes
a statement which he knows to be inaccurate, false or misleading in any material respect, or recklessly furnishes information or
makes a statement which is inaccurate, false or misleading in any material respect, shall be guilty of an offence.
(3) Any person who is knowingly a party to the carrying on of any retirement scheme or retirement fund or licensable or recognised
activity with an intent to defraud or for a fraudulent purpose, shall be guilty of an offence.
(4) Any person who by any statement, promise or forecast which he knows to be misleading, false or deceptive, or by any
dishonest concealment of material facts, or by the reckless making (whether dishonest or otherwise) of any statement, promise
or forecast which is misleading, false or deceptive, induces or attempts to induce another person to enter into or offer
to enter into a retirement scheme or retirement fund, shall be guilty of an offence.
Obligation to give reasons.
Offences.
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(5) Any person who with intent to avoid detection of the commission of an offence under this Act removes, destroys, conceals or fraudulently
alters any book, document or other paper, shall be guilty of an offence.
(6) Any person who intentionally obstructs a person exercising rights conferred by this Act shall be guilty of an offence.
Penalties. 49. A person guilty of an offence under the provisions of article 48 shall, unless another penalty is prescribed, be liable on
conviction to a fine (multa) not exceeding four hundred and sixty-six thousand euro or to a term of imprisonment not exceeding four years, or to both such fine
and imprisonment.
Criminal proceedings.
Public statement as to misconduct.
(2) The provisions of this Act shall not affect any criminal liability that may be incurred by any person under any other law.
(2) Nothing in this article shall restrict or otherwise prejudice the powers of the competent authority under article 41(4).
Confidentiality. 52. (1) Information obtained by the competent authority or by its officers, employees, agents as well as by inspectors, auditors, actuaries and experts engaged by the competent authority for the purposes of, or pursuant to, any of the provisions of this Act, or of any regulations or Pension Rules made thereunder, or in the discharge of any functions under any of the said provisions, shall be treated as confidential and protected by the duty of professional secrecy, and shall not be disclosed to any person, except in the following cases:
(a) where the information is disclosed with a view to the institution of, or otherwise for the purposes of, any proceedings by
the Authority before any court under this Act;
(b) where the disclosure is required for the detection, prevention or prosecution of criminal offences under the criminal
provisions of this Act or any other Act;
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(c) with a view to enabling or assisting the competent authority in the performance or discharge of any of its functions under
this Act;
(d) where the information has been made available to the public by virtue of being disclosed in any circumstances in which, or
for any purpose for which, disclosure is not precluded by this article;
(e) where a summary or collection of information is prepared or supplied in such a way as not to enable the identity of any
person to whom the information relates to be ascertained;
(f) where the information is disclosed to an auditor or actuary where such disclosure would assist the auditor or actuary
in the exercise of its functions under article 16;
(g) where the information is provided to the Central Bank of Malta or to the Listing Authority under the Financial Markets
Act, where such information is required by the Bank or by the Listing Authority in the exercise of their respective functions in
terms of law;
(h) in response to a request from, or for the purpose of, assisting an overseas regulatory authority pursuant to article 43;
(i) where the information is provided to such other local or overseas regulatory, judicial or enforcement authorities
and where the disclosure is required for the pursuance of serious regulatory concerns or criminal nature or the detection, prevention
or prosecution of criminal offences;
(j) where the information is disclosed in civil or commercial proceedings in relation to the bankruptcy or compulsory winding
up or dissolution and consequential winding up by the Court of a licence holder or recognised person, provided
such information does not concern third parties and is necessary for the proceedings, or is disclosed to an overseas body responsible
for the liquidation and bankruptcy of a person holding a licence or recognition or an equivalent authorisation from an overseas regulatory
authority:
Provided that, this article shall not prevent the competent authority from using such information for other purposes where the body
or person communicating information to the competent authority consents thereto.
(2) Subject to the provisions of article 43, information
Cap. 345.
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obtained from an overseas regulatory authority may only be disclosed to another person, to another overseas regulatory authority or
to any other third party with the prior approval of the authority which had provided the information.
Exclusion of liability.
Notices. 54. A notice or other document to be given or served under this Act, or any regulations or Pension Rules made thereunder, shall be deemed to have been duly given or served on a person if -
(a) it has been delivered to it; or
(b) it has been left at the address furnished by it to the competent authority, or to its last known address; or
(c) it has been sent to it by post, e-mail or by telefax at any of the aforesaid addresses; or
Repeal of he Special Funds (Regulation) Act.
Cap. 450.
(d) in the case of a body of persons, whether corporate or unincorporated, or of a retirement scheme or a retirement fund, if it has been given or served in any of the manners aforesaid to or on a retirement scheme or retirement fund, Retirement Scheme Administrator, any person, by whatever name designated, responsible for the operation, administration and management of the retirement fund, secretary, clerk, manager, or their equivalent, or to any contributor or to any director or member of any person, by whatever name designated, responsible for the operation, administration and management of the retirement scheme or fund or an appointed representative.
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which shall continue to be valid and in force, as if such authorisation, approval or order were taken or commenced under this Act.
(2) Subject to sub-article (1), and unless the context otherwise requires, any reference to the Special Funds (Regulation) Act used
in any law, regulation, rule or other document before the coming into force of this Act, shall be deemed to be a reference to this
Act.
(2) Subject to the provisions of article 55, any person licensed under the Special Funds (Regulation) Act shall, not later than
the period prescribed in terms of sub-article (1), conform with the provisions of this Act or otherwise cease to carry on the activities
for which such licence was granted, and such person shall until the prescribed period or until it conforms with the provisions of
this Act, whichever is the earlier, continue to be governed by the provisions of the Special Funds (Regulation) Act.
(3) Where a person ceases to carry on the activities for which it was licensed on the grounds that such person did not,
on the prescribed date, conform with the provisions of this Act, that person shall cease such activities with immediate effect
and the competent authority may impose such conditions as it may deem appropriate in the circumstances.
Income Tax Act, there shall be added the following new sub-articles:
''(23) Notwithstanding the provisions of sub-articles (1) and (2) in the case of an individual who, after 1 January 2011,
has been granted a special tax status under such terms and conditions as the Minister may prescribe, the tax upon the chargeable
income of that individual, other than income mentioned in sub-article (10)(b) shall be charged at the rate of fifteen cents (0.15)
on every euro thereof:
Provided that the Minister shall prescribe the minimum tax payable by such individual in respect of any year of assessment.
(24) In the case of an individual or individuals who, after
1 January 2011, has or have been granted a special temporary
Cap. 450.
Minister’s power to make transitional arrangements. Cap. 450.
Cap. 450.
Amendment of the Income Tax Act.
Cap. 123.
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tax status under such terms and conditions as the Minister may prescribe, the tax upon the chargeable income, other than income
mentioned in sub-article (10)(b) shall be charged at the rate of fifteen cents (0.15) on every euro thereof:
Amendment of the Trusts and Trustees Act. Cap. 331.
Amendment of the Companies Act.
Cap. 386.
Provided that the Minister shall prescribe the minimum tax payable by such individual or individuals in respect of any year of assessment.''.
immediately after the words "as defined in the Investment
Services Act" there shall be added the words "or a retirement scheme or a retirement fund licensed under the Retirement
Pensions Act set up as a unit trust";
(b) in sub-article (2) of article 12 thereof, for the words "or to a retirement scheme registered in terms of the Special
Funds (Regulation) Act and set up as a trust." there shall be substituted the words "or to a retirement scheme licensed
in terms of the Retirement Pensions Act and set up as a trust.";
(c) paragraph (c) of sub-article (6) of article 43 thereof shall be substituted by the following:
"(c) A person licensed in terms of the Retirement Pensions Act to act as a Retirement Scheme Administrator acting as a trustee
to retirement schemes shall not require further authorisation in terms of this Act provided that such trustee services are limited
to retirement schemes.";
(d) paragraph (iii) of sub-article (8) of article 43 thereof shall be substituted by the following:
"(iii) a person licensed under the Retirement
Pensions Act as a retirement scheme administrator:"; and
(e) in paragraph (h) of sub-article (1) of article 57 thereof, immediately after the words "Investment Services
Act," there shall be added the words "or the Retirement Pensions Act,".
(a) article 84 thereof shall be amended as follows:
(i) for sub-article (2)(b)(ii) thereof, there shall be
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substituted the following:
"(ii) to act and operate as a retirement scheme or retirement fund within the meaning of article 2 of the Retirement Pensions
Act."; and
(ii) in sub-article (11) thereof:
1. for the words "the Special Funds (Regulation) Act", there shall be substituted the words "the Retirement
Pensions Act"; and
2. for the words "operating as a
Retirement Fund within the meaning of articles
2 and 4 of the Special Funds (Regulation) Act;", there shall be substituted the words "operating as a retirement
scheme or a retirement fund within the meaning of article 2 of the Retirement Pensions Act;";
(b) for sub-article (6)(a) of article 194 thereof, there shall be substituted the following:
"(a) the business of the company consists of investing in funds mainly in securities with the aim of spreading investment risk
and giving members of the company the benefit of the results of the management of its funds;"; and
(c) in the Fifth Schedule thereof, for the first paragraph thereof, there shall be substituted the following:
"1. Without prejudice to any requirements laid down by the competent authority under the Investment Services Act or
the Retirement Pensions Act, the individual accounts of an investment company with variable share capital shall
disclose at least the information specified in the following provisions of this Schedule.".
SCHEDULE (Article 6)
LICENSABLE ACTIVITIES
1. Retirement Scheme Administration
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- administering the operation of a retirement scheme.
2. Custodian or Trustee Services
- acting as custodian or trustee of a retirement scheme
- acting as custodian or trustee of a retirement fund.
3. Investment Management
- management of the assets of a retirement scheme
- management of the assets of a retirement fund.
For the purposes of this paragraph, investment management means managing or agreeing to manage assets belonging to a retirement
scheme or retirement fund on behalf of a retirement scheme or retirement fund if those assets consist of or include one
or more instruments or the arrangements for their management are such that the person may manage those assets to invest in one or
more instruments.
Reference in this Schedule to a retirement scheme or to a retirement fund shall also include reference to a similar or equivalent
arrangement established overseas within the meaning of article 6.
Passed by the House of Representatives at Sitting No. 386 of the
25th July, 2011.
MICHAEL FRENDO
Speaker
PAULINE ABELA
Clerk to the House of Representatives
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