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Maltese Laws |
AN ACT to establish general provisions facilitating the exercise of freedom of establishment for service providers and the free movement of services in the internal market and to implement Directive 2006/123/EC.
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:-
Market) Act, 2009.
(2) Parts I to VI (both inclusive) and the Schedules of this Act shall come into force upon publication of this Act.
"Appeals Board" means the appeals boards, tribunals or courts established by law, recourse to which may be made by any aggrieved
person following a decision of a competent authority;
"authorisation" means a permit, licence, warrant, appointment, concession or any formal or implied decision concerning access
to a service activity or the exercise thereof;
Short title and commencement.
Interpretation.
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"authorisation scheme" means any authorisation and other procedure of an administrative nature, under which a provider or
recipient is in effect required to take steps in order to commence the activity in question and obtain, from a competent authority,
authorisation concerning access to a service activity or the exercise thereof;
"commercial communication" means any form of communication designed to promote, directly or indirectly, the goods,
services or image of an undertaking, organisation or person engaged in commercial, industrial or craft activity, or practicing a
regulated profession. The following do not in themselves constitute commercial communications:
(a) information enabling direct access to the activity of the undertaking, organisation or person, including in particular a
domain name or an electronic-mailing address;
(b) communications relating to the goods, services or image of the undertaking, organisation or person, compiled in an independent
manner, particularly when provided for no financial consideration;
"competent authority" means any body or authority established and, or designated by law and vested with a supervisory and,
or regulatory role in relation to service activities, including the regulation of access to service activities and, or
the exercise thereof;
"the Directive" means Directive 2006/123/EC of the European Parliament and of the Council of 12 December, 2006, on services
in the internal market;
"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;
"the European Commission" means the Commission of the
European Community;
"Internal Market Information System" means the information system, established further to Article 34 of the Directive, through
which competent authorities exchange information in fulfilment of their obligations under Chapter VI of the Directive;
"Member State" means a member state of the European
Economic Area;
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"Member State of establishment" means the Member State in whose territory the provider of the service concerned is established;
"Member State where the service is provided" means the Member State where the service is supplied by a provider established
in another Member State;
"the Minister" means the Minister responsible for the economy; "overriding reasons relating to the public interest",
unless
otherwise specified in this Act, means the reasons recognised as such
in the case law of the European Court of Justice, and as they may continue to evolve, including the following grounds: public policy,
public security, public safety, and public health; the maintenance of order in society; social policy objectives, the protection
of the recipients of services; consumer protection; the protection of workers including the social protection of workers; animal
welfare; the preservation of the financial balance of the social security system; the prevention of fraud; the prevention of unfair
competition; the protection of the environment and the urban environment including town and country planning; the protection of creditors;
safeguarding the sound administration of justice; road safety; the protection of intellectual property; cultural policy objectives
including safeguarding the freedom of expression of various elements in particular social, cultural, religious and philosophical
values of society; the need to ensure a high level of education, the maintenance of press diversity and the promotion of the national
language; the preservation of national historical and artistic heritage; and veterinary policy;
"point of single contact" means the electronic system through which the competent authorities shall fulfill their functions
relating to the completion of all procedures and formalities necessary for establishment and access to and exercise of a service
activity in Malta and the provision of relevant information to an applicant, a provider and recipients in terms of this Act or as
may be prescribed;
"provider" means any natural person who is a national of a Member State, or any legal person as referred to in Article 48
of the Treaty and established in a Member State, who offers or provides a service;
"recipient" means any natural person who is a national 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;
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L.N. 422 of
2007.
Cap. 379.
"regulated profession" means a professional activity or a group of professional activities as referred to in Article 3(1)(a)
of Directive
2005/36/EC on the recognition of professional qualifications as transposed by the Recognition of Professional Qualifications Regulations,
2007;
"requirement" means any obligation, prohibition, condition or limit provided for in the laws, regulations
or administrative provisions, administrative practice, the rules of professional bodies, or the collective rules of professional
associations or other professional organisations, adopted in the exercise of their legal autonomy;
"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 as services of general economic
interest in terms of article 30(3) of the Competition Act in conformity with Community law;
"the Treaty" means the Treaty establishing the European
Community.
Scope. 3. (1) This Act shall apply to services supplied by a provider.
S.L. 371.11
(2) Without prejudice to subarticle (1), this Act shall not apply to the following activities:
(a) financial services, such as banking, credit, insurance and re-insurance, occupational or personal pensions, securities, investment
funds, payment and investment advice, including the services listed in Annex I to Directive 2006/48/EC relating to the taking up
and pursuit of the business of credit institutions as transposed by the European Passport Rights for Credit Institutions Regulations;
(b) electronic communications services and networks, and associated facilities and services, with respect to matters covered by
Directives 2002/19/EC (Access Directive), 2002/20/ EC (Authorisation Directive), 2002/21/EC (Common Regulatory Framework), 2002/22/EC
(Universal Services Directive) and 2002/58/EC (Directive on Piracy and Electronic Communication) as transposed into Maltese legislation;
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(c) services in the field of transport, including port services, falling within the scope of Title V of the Treaty;
(d) services of temporary work agencies;
(e) healthcare services including pharmaceutical services provided by health professionals to assess, maintain and
restore the state of health to patients, whether or not they are provided via healthcare facilities, and regardless of the ways in
which they are organised and financed at national level or whether they are public or private;
(f) audiovisual services, including cinematographic services, whatever their mode of production, distribution and transmission,
and radio broadcasting;
(g) gambling activities as regulated by the Gaming Act and the Lotteries and other Games Act;
(h) activities which are connected with the exercise of official authority as set out in Article 45 of the Treaty;
(i) social services relating to social housing, childcare and support of families and persons permanently or temporarily in need
which are provided by the State, by providers mandated by the State or by charities recognised as such by the State;
(j) private security services;
(k) services provided by notaries and court marshals, who are appointed by an official act of government;
(l) services in the field of taxation.
(3) If the provisions of this Act are in conflict with a provision of a Community act governing specific aspects of access to, or
exercise of a service activity in, specific sectors or for specific professions, the provision of the Community act shall prevail
and shall apply to those specific sectors or professions. These include:
(a) Directive 96/71/EC on the posting of workers in the framework of the provision of services;
(b) Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and self-employed persons, and
to members of their families moving within the Community;
Cap.400. Cap. 438.
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(c) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or
administrative action in Member States concerning the pursuit of television broadcasting activities;
(d) Directive 2005/36/EC on the recognition of professional qualifications.
(4) Furthermore, this Act shall not apply to:
(a) rules of private international law, in particular rules governing the law applicable to contractual and non-contractual obligations;
and
(b) rules concerning the rules of jurisdiction of the
Courts.
General functions of competent authorities regulating
access to service
activities falling
under this Act
and, or the
exercise thereof.
(a) simplify procedures and formalities applicable to the access to a service activity and to the exercise thereof;
(b) act objectively, transparently, efficiently and in a timely manner;
(c) provide information and assistance to providers and recipients subject to the provisions of this Act;
(d) 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 be applicable to the inspection of premises on which the service is provided or of equipment used by the provider
or to the physical examination of the capability or of the personal integrity of the provider or of his responsible staff;
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(e) assist competent authorities of another Member State and seek their assistance in fulfilling the supervisory obligations
in terms of article 8;
(f) perform such other functions as may from time to time be assigned to it by the Minister, in consultation with other Ministers,
as may be applicable.
(a) non-discriminatory; (b) necessary, and
(c) justified by an overriding reason relating to the public interest;
Provided that the public interest objective being pursued cannot be attained by means of a less restrictive measure, in particular
because a posteriori inspections, checks and controls would take place too late to be genuinely effective.
(2) The competent authority shall assess applications and grant authorisations based on criteria that are:
(a) non-discriminatory;
(b) justified by an overriding reason related to public interest and proportionate to the attainment of that public interest
objective;
(c) clear and unambiguous; (d) objective;
(e) made public in advance; and
(f) transparent and accessible.
(3) A competent authority may not make access to or the exercise of a service activity in Malta subject to compliance to
any of the following, in conformity with European Union law:
(a) discriminatory requirements based directly or indirectly on nationality or, in the case of companies, the location
of the registered office, including in particular:
Authorisation function and conditions.
Conditions for granting authorisations.
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(i) nationality requirements for the provider, his staff, persons holding the share capital or members of the provider’s management
or supervisory bodies;
(ii) a requirement that the provider, his staff, persons holding the share capital or members of the provider’s management
or supervisory bodies be resident in Malta;
(b) a prohibition on having an establishment in more than one Member State or on being entered in the registers or enrolled with
professional bodies or associations of more than one Member State;
(c) restrictions on the freedom of a provider to choose between a principal or a secondary establishment, in particular an obligation
on the provider to have its principal establishment in Malta, or restrictions on the freedom to choose between establishment in the
form of an agency, branch or subsidiary;
(d) conditions of reciprocity with the Member State in which the provider already has an establishment;
(e) the case-by-case application of an economic test making the granting of authorisation subject to proof of the existence of
an economic need or market demand, an assessment of the potential or current economic effects of the activity or an
assessment of the appropriateness of the activity in relation to the economic planning objectives set by the competent authority;
this prohibition shall not concern planning requirements which do not pursue economic aims but serve overriding reasons relating
to the public interest;
(f) the direct or indirect involvement of competing operators, including within consultative bodies, in the granting of authorisations
or in the adoption of other decisions of the competent authorities, with the exception of professional bodies and associations or
other organisations acting as the competent authority; this prohibition shall not concern the consultation of organisations, such
as chambers of commerce or social partners, on matters other than individual applications for authorisation, or a consultation of
the public at large;
(g) an obligation to provide or participate in a financial guarantee or to take out insurance from a provider or body established
in Malta; this paragraph is without prejudice to sub- article (5) or to requirements relating to the participation in a
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collective compensation fund for members of professional bodies or organisations;
(h) an obligation to have been pre-registered, for a given period, in the registers held in Malta or to have previously
exercised the activity for a given period in Malta.
(4) Where a competent authority makes access to a service activity or the exercise thereof subject to any of the following non-
discriminatory requirements:
(a) quantitative or territorial restrictions;
(b) an obligation on the provider to take a specific legal form;
(c) requirements which relate to the shareholding of a company;
(d) requirements, other than those concerning matters covered by Directive 2005/36/EC on the recognition of professional qualifications
as transposed by the Recognition of Professional Qualifications Regulations, 2007, or provided for in other Community Instruments,
which reserve access to the service activity in question to particular providers by virtue of the specific nature of the activity,
it shall ensure that the requirements are:
(i) not directly nor indirectly discriminatory on the basis of the nationality of the individual or the registered office of the
company;
(ii) justified by an overriding reason relating to the public interest; and
(iii) proportionate and suitable for attaining the objective pursued:
Provided that where the access to the service activity in question, or the exercise thereof, is a service of general economic interest,
this sub-article shall apply only in so far as it does not obstruct the performance, in law or in fact, of the public service
obligation task assigned to the provider or providers:
Provided further that with effect from 28 December 2009, the introduction of the said non-discriminatory requirements shall be notified
to the European Commission through established procedure.
L.N. 422 of
2007.
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(5) Without prejudice to arrangements provided for in other Community instruments concerning professional insurance or guarantees,
a competent authority may request a provider established in Malta whose services present a direct and particular risk to the health
and safety of the recipient or a third person, or to the financial security of the recipient, to subscribe to a professional liability
insurance appropriate to the nature and extent of the risk, or provide a guarantee or similar arrangement which is equivalent or
essentially comparable as regards it purpose.
For the purpose of this sub-article:
"direct and particular risk" means a risk arising directly from the provision of the service;
"health and safety" means, in relation to a recipient or a third person, the prevention of death or serious personal injury;
"financial security" means, in relation to a recipient, the prevention of substantial losses of money or of value of property;
"professional liability insurance" means insurance taken out by a provider in respect of potential liabilities to recipients
and, where applicable, third parties arising out of the provision of the service.
A competent authority shall accept as sufficient evidence attestations of such insurance cover issued by credit institutions and insurers
established in other Member States.
(6) A competent authority may not impose requirements on a service provider established in Malta which oblige him to exercise a
specific service activity exclusively or which restricts him from exercising his service activity jointly or in partnership except
in the case of:
(a) regulated professions, so long as it is justified on the grounds of ethics and conduct;
(b) providers of certification, accreditation, technical monitoring, test or trial services, so long as it is justified on the
grounds of independence and impartiality:
Provided that where a competent authority authorises or permits the carrying out of multi-disciplinary activities between providers
established in Malta, it shall ensure prevention of any conflict of interest from among the providers, the subsistence of
independence and impartiality, and the adherence to professional ethics and codes conduct where applicable.
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(7) A competent authority or any other professional body empowered at law to regulate the exercise of regulated professions, shall
not prohibit commercial communications by the regulated professions:
Provided that professional rules on commercial communications shall be non-discriminatory, justified by an overriding reason relating
to the public interest and proportionate:
Provided further that commercial communications by the regulated professions comply with professional rules, in conformity with Community
law, which relate, in particular, to the independence, dignity and integrity of the profession, as well as to professional secrecy,
in a manner consistent with the specific nature of each profession.
(8) When a service provider is already established in another
Member State, and seeks establishment in Malta:
(a) where the service activity is subject to an authorisation scheme or the fulfillment of other requirements regulating
establishment in Malta, the competent authority shall not duplicate requirements or controls which are equivalent or essentially
comparable as regards their purpose to which a provider may already be subject to in another Member State where he is established:
Provided that the provisions of this paragraph shall not apply to the documents referred to in Article 7(2) and 50 of Directive 2005/36/EC,
in Articles 45(3), 46, 49 and 50 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination
of procedures for the award of public works contracts, public supply contracts and public service contracts, in Article 3(2) of Directive
98/5/EC of the European Parliament and of the Council of 16 February
1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the
qualification was obtained, in the First Council Directive 68/
151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required
by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such
safeguards equivalent throughout the Community and in the Eleventh Council Directive 89/666/EEC of 21
December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed
by the law of another Member State;
Service provider established in another Member State.
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(b) where a competent authority requires a provider to supply a certificate, attestation or document proving that a requirement
has been satisfied in terms of this Act:
(i) it shall accept any document from another Member State which serves an equivalent purpose or from which it is clear that the
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 any 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 this paragraph shall not affect the right of a competent authority from requesting a non-certified translation of
documentation in the Maltese or English language:
Provided further that the competent authority may make use of the electronic system referred to in article 8 to carry out necessary
verification, checks and controls with the relevant competent authority in the Member State of establishment;
Selection from among several candidates.
(c) when a competent authority requires a provider to subscribe to a professional liability insurance in terms of sub- article
(5), a competent authority may not require a provider to subscribe to a professional liability insurance or a guarantee where he
is already covered by an insurance or guarantee which is equivalent or essentially comparable, as regards its purpose and the cover
it provides in terms of the insured risk, the insured sum, or a ceiling for a guarantee and possible exclusions from the cover in
another Member State in which the provider is already established. Where equivalence is only partial, a competent authority may require
a supplementary insurance or guarantee to cover those aspects not already covered.
(9) (a) Where the number of authorisations available for a given service activity is limited because of the scarcity of available
natural resources, technical capacity or if justified by an overriding reason relating to public interest, a competent authority
shall apply a selection procedure to potential candidates in order to ensure impartiality, transparency, conditions of open competition,
including in particular adequate publicity about the launch, conduct and
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completion of the procedure.
(b) Subject to the provisions of paragraph (a) and sub- articles (1) and (2), in establishing the rules for the selection procedure,
the competent 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, the preservation of cultural heritage
and other overriding reasons relating to the public interest, in conformity with Community law.
(10) (a) An authorisation granted to a provider shall be for an indefinite period, except where:
(i) the authorisation is being automatically renewed or is subject only to the continued fulfilment of requirements;
(ii) the number of available authorisations is limited in terms of sub-article (9);
(iii) a limited authorisation period can be justified by an overriding reason relating to the public interest.
(b) In cases referred to in paragraph (a)(ii), an authorisation shall be granted for an appropriate limited period
enabling the provider to recoup the cost of investment and to make a fair return on the capital invested, which authorisation may
not be open to automatic renewal nor confer any other advantage on the provider whose authorisation has just expired or on any person
having any particular links with that provider.
(11) (a) An authorisation granted by a competent authority shall enable the provider to have access to the service activity or
the exercise thereof throughout the national territory including by means of setting up agencies, subsidiaries, branches or offices,
except where the authorisation for each individual establishment or a limitation of authorisation to a certain part of the territory
is justified by an overriding reason relating to public interest.
(b) The service provider shall be required to inform the competent authority of the creation of subsidiaries, branches, offices
or agencies whose activities fall within the scope of the authorisation scheme.
(12) In the fulfilment of its authorisation function, a competent authority shall:
(a) ensure that the procedures and formalities are
Duration of authorisation.
Territoriality.
Procedures and formalities.
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maintained sufficiently simple, clear, objective and made public in advance, and shall not unduly complicate or delay the commencement
of the service activity by the provider;
(b) acknowledge all applications requesting authorisation; specifying the time period within which the application shall
be processed referred to in paragraph (d), the available means of redress and where applicable, a statement that in the absence
of a response within the time-period specified the authorisation shall be deemed to have been granted;
(c) in the 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;
(d) 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 and requirements have been submitted and any other formalities have been completed
in order for the competent 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, and due justification
shall be given to the applicant before the original period has expired:
Provided further that a competent authority may make different arrangements where objectively justified by overriding reasons relating
public interest;
(e) provide information regarding the means of redress available in case of non-acceptance of an application;
(f) grant authorisation as soon as the applicant fulfills all requirements, without prejudice to the right of the competent authority
to revoke or modify an authorisation when the conditions for authorisation are no longer met by the provider;
(g) 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;
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(h) except in the case of the granting of an authorisation, a decision from a competent authority, including refusal
or withdrawal, shall be fully reasoned and shall be open to challenge before the Appeals Board.
For the purposes of this sub-article:
(a) a requirement is discriminatory if it necessitates the fulfilment of obligations which relate to the nationality of the applicant,
including the place of establishment of a legal person;
(b) a requirement is unnecessary if it is not justified by reasons of public policy, public security, public health or the protection
of the environment;
(c) a requirement lacks proportionality if it goes beyond what is necessary to pursue the objective.
(2) Without prejudice to sub-article (1), a competent authority may not subject a provider established in another Member State who
wishes to provide services in Malta, to any of the following requirements:
(a) an obligation on the provider to have an establishment in Malta;
(b) an obligation on the provider to obtain an authorisation from the competent authority including entry in a register
or registration with a professional body or association in Malta except where provided for in this Act and other instruments of Community
law;
(c) a ban on the provider setting up a certain form or type of infrastructure in Malta, including an office or chambers, which
the provider needs in order to supply the services in question;
(d) the application of specific contractual arrangements between the provider and the recipient which prevent or restrict service
provision by the self-employed;
Freedom to provide services by providers already established in Member States.
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(e) an obligation on the provider to possess an identity document issued by the relevant Maltese authorities for the exercise
of a service activity;
(f) requirements which affect the use of equipment and material which are an integral part of the service provided, unless
necessary for the purpose of health and safety at work;
(g) restriction on the freedom to provide services as contemplated under article 9(b) in relation to the right of recipients:
Provided that a competent authority may necessitate that the provider observes the relevant laws which regulate conditions of employment
including those relating to collective agreements in conformity with Community law:
Provided further that in establishing whether a provider is exercising his freedom to provide services within the meaning of this
article and Article 49 of the Treaty, or is an establishment case, the competent authority shall assess and decide each case
on its individual merits and in conformity with the Community law and rulings of the European Court of Justice.
(3) In exceptional cases only, and on a case by case basis, without prejudice to sub-articles (1) and (2), a competent authority
may, in respect of a provider established in another Member State, take measures in order to ensure the safety of services provided
in Malta. When taking such measures, a competent authority shall follow the procedure established under the Fourth
Schedule, 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 competent authority as referred to in paragraphs 2 and 3 to the Fourth Schedule;
(d) the measures are proportionate:
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Provided that where the competent authority becomes aware of a serious specific act or circumstances relating to a service activity
that would cause serious damage to the health and safety of persons, or the environment, in Malta or another Member State, it shall
inform the Member State of establishment, other Member States that may be concerned or affected, and the European Commission within
the shortest time possible through the Internal Market Information System.
(a) a competent authority shall cooperate with the designated entity in accordance with article 10(3) to ensure that the following
are easily accessible to providers and recipients:
(i) the requirements applicable in other Member States relating to access to, and exercise of, the relevant service activities,
in particular those relating to consumer protection;
(ii) the contact details of the competent authorities enabling the latter to be contacted directly, including the details of
those authorities responsible for matters concerning the exercise of the relevant service activities;
(iii) the means of, and conditions for, accessing public registers and databases on providers and relevant services;
(iv) the means of redress which are generally available in the event of dispute between the competent authorities and the provider
or the recipient, or between a provider and a recipient or between providers;
(v) the contact details of the associations or organisations other than the competent authorities, from which providers may obtain
practical assistance;
(vi) a list, updated at least annually, of the names and commercial contact details of those providers who are in possession of
a valid licence issued by the competent authority;
(b) at the provider’s and recipient’s request, the competent authority shall provide assistance consisting of
simple, generic information of a non-legal nature, on the
Provision of information and assistance to applicants, providers and recipients.
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interpretation and application of the requirements, procedures and formalities needed for a provider or recipient to have access to
the relevant service activity in Malta;
Supervisory functions.
(c) in cooperation with the European Commission and other Member States, the competent authority shall seek to assist recipients in Malta in obtaining information on the protection given to recipients, as well as the available means of redress, and the contact details of associations providing consumer assistance in other Member States.
(2) The competent authority shall exercise its supervisory functions on providers established in Malta, and falling under its area
of competence, whether the service is provided in Malta or in another Member State.
(3) In executing its supervisory functions, when a service is being provided in another Member State by a provider established in
Malta, a competent authority shall assist the relevant competent authority of that other Member State according to the procedure
set up in the Second Schedule. In doing so, the competent 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 a competent authority shall not be bound to carry out checks and controls in the Member State where the service is being
provided.
(4) When a service is being provided in Malta, in the event of a temporary movement by a provider established in another Member
State in terms of article 6:
(a) the competent authority shall participate in the supervision of the provider in accordance with the procedure set up in the
Second Schedule;
(b) when it has imposed requirements in terms of the provisos to article 6(2), it shall assume responsibility for the supervision
of the provider in Malta in order to ensure compliance with those requirements.
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(5) A competent authority shall exchange requests and information with the relevant competent authorities of another Member State
and the Commission through the Internal Market Information System.
(6) Without prejudice to the limitations imposed by any other law, a competent 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, in terms of the procedure contemplated under
the Third Schedule.
(a) limitations to access to services in Malta through a provider’s general conditions that contain discriminatory provisions
relating to the nationality or place of residence of the recipient, provided that this does not preclude the possibility for a provider
to provide for differences in the conditions of access where those differences are directly justified by objective criteria; or
(b) the granting of financial assistance by reason of the fact that the provider is established in another Member State or by
reason of the location of the place at which the service is provided; or
(iii) an obligation to obtain authorisation from, or to make a declaration to, a competent authority.
(2) For the purpose of subarticle (1), the body responsible for consumer protection shall be responsible to monitor and enforce
compliance by the provider with the requirements listed under the Fifth Schedule.
(3) For the purposes of subarticle (1) the body responsible to provide, upon request, information in accordance with article 7(a)(i)
to (vi) shall be the entity fulfilling the role of the European Consumer Centre in Malta or any other entity as may be designated
by the Minister.
Prohibitions.
Right to information and assistance.
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Power to take necessary measures.
Power of make regulations.
(2) Without prejudice to the generality of the aforesaid power, such regulations may in particular provide for:
(a) the definition of functions of a point of single contact, its administrative and operational set up and function
including its coordination with the relevant competent authorities and other bodies established under other laws in
fulfilment of the functions assigned to it;
(b) establishing the sanctions or penalties to which an offender under this Act may, on being found guilty, become liable;
(c) conformity by competent authorities with the provisions of this Act;
(d) the designation of a body responsible to communicate with the European Commission for the introduction of any laws,
regulations or administrative provisions as referred to in the second proviso to article 5(4), and the procedure to be followed
to channel the information to the European Commission;
(e) the designation of a national coordinator for the
Internal Market Information System;
(f) the designation of an Appeals Board to take cognizance of complaints lodged by a provider against a competent
authority in default of a procedure identified under its founding and enabling legislation;
(g) prescribing anything which may be required to be prescribed by this Act.
Reprint. 13. Without prejudice to any other law, in any reprint of this
Act, Parts VII to the last Part need not be reproduced and it shall be
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sufficient to reproduce Parts I to VI of this Act:
Provided that nothing in this article shall be construed as reducing the validity of anything contained in the parts not so reproduced.
Amendments to the Code of Organization and Civil Procedure.
Cap. 12.
Act.
(2) This Part shall come into force upon publication of this
Amendment of
Tariff E in
A of the principal law shall be substituted by the following new sub-
paragraph:
"(a) The foregoing provisions of this Tariff shall not prohibit an Advocate or a Legal Procurator and his client, from agreeing
on a fee, or the basis on which the fee is to be determined which is different from that established by this Tariff, and
in any such case the agreed fee or basis for determining it, not being a basis prohibited by law, shall apply, subject to the provisions
of the following sub-paragraphs:
Provided that in any case, an Advocate or a Legal Procurator shall inform his client of the applicable fee or the basis on which the
fee is to be determined before the service is provided.".
of the principal law, there shall e added the following new paragraph:
"20. (a) The foregoing provisions of this Tariff shall not prohibit a Perit and his client, from agreeing on a fee, or the
basis on which the fee is to be determined which is different from that established by this Tariff, and in any such case the agreed
fee or basis for determining it, not being a basis prohibited by law, shall apply, subject to the provisions of the following sub-paragraphs:
Provided that in any case, a Perit shall inform his
Schedule A of the principal law.
Amendment of Tariff K in Schedule A of the principal law.
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client of the applicable fee or the basis on which the fee is to be determined before the service is provided.
(b) For the purposes of this paragraph, an agreement concerning fees shall be in writing.".
Amendments to the Commercial Code.
Cap. 13.
Substitution of articles 71, 72,
Act.
(2) This Part shall come into force upon publication of this
73 and 73A of the principal law.
substituted by the following new articles:
"Commercial
agents.
Cap. 386
71. (1) Any person desiring to act as a
commercial agent, whether alone or in partnership with any other person, shall notify the regulatory authority requesting registration,
within thirty days of undertaking this activity.
(2) In order to be registered as a commercial agent with the regulatory authority an applicant shall apply in writing
to the authority in such form as the regulatory authority shall prescribe, containing the full name and surname, age,
private and business addresses of the applicant and such other particulars concerning his business or occupation as the regulatory
authority shall require. In the case of a person applying to be registered as a commercial agent in partnership, a reference shall
be made in the application to the statement published in the Gazette in terms of the Companies Act showing the date of registration
of the partnership and the date on which the relative certificate of registration was issued.
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(3) The regulatory authority shall not accept an application for registration to act as a commercial agent from any person
who is in the employment of the Government of Malta or of any financial institution, or from any person holding a warrant to
practise a profession in Malta and actually practising such profession, or from stockbrokers or from any person who, whether in Malta
or abroad, has been found guilty of fraudulent bankruptcy.
(4) Notice of any registration under this article shall be published in the Gazette. In the month of January of each year, a complete
list of registrations then in force shall likewise be published in the Gazette.
(5) Any registration carried out under this article may be withdrawn or suspended by the regulatory authority, if the person
registered -
(a) is convicted of any crime against property;
(b) is adjudged bankrupt;
(c) accepts employment under the Government of Malta, or with any financial institution, or becomes the holder
of a warrant to practise a profession and actually practises such profession or becomes a stockbroker;
(d) is proved, to the satisfaction of the court, not to be a fit and proper person to act as a commercial agent.
(6) Such withdrawal or suspension shall be published in the Gazette.
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Power of the Minister to prescribe fee for registration.
72. The Minister after consulting the regulatory authority may, by regulation, prescribe the fee to be charged by the regulatory authority in respect of a registration to act as a commercial agent under the provisions of the last preceding article. Any such regulation may prescribe the payment of an annual fee in addition to the fee payable on the initial registration and may provide that in default of payment of any such annual fee, the registered person or partnership shall removed from the register.
Penalties. 73. Without prejudice to the provisions of article 71(1), any person who, without being registered, represents himself to be, or acts or undertakes to act as a commercial agent, shall be liable:
No grant or renewal of registration pending settlement of fine.
(a) on a first conviction to a fine (multa) not exceeding two thousand and five hundred euro (€2,500); and
(b) on a second or subsequent conviction, to imprisonment for a term not exceeding three months or to a fine (multa) not exceeding five thousand euro (€5,000).
73A. Where any court has imposed a fine under this sub-title, and such fine has not been paid, the regulatory authority shall not
grant or renew the registration on the expiry thereof until such time as the payment of the fine is effected.".
Substitution of articles 79 and
80 of the principal law.
"Requirements for becoming a public broker.
79. (1) Any person desiring to act as a public broker shall notify the Council of the Chamber of Commerce, Enterprise
and Industry, as the authority regulating this activity, requesting registration, within thirty days of starting such an
activity.
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Forfeiture of office of public broker.
Cap. 9.
(2) In order to be registered as a public broker with the regulatory authority, an applicant shall inform the authority
in writing in such form as the regulatory authority shall prescribe, containing the full name and surname, age, private
and business addresses of the applicant and such other particulars concerning his business or occupation as the regulatory authority
shall require.
(3) Brokers complying with all the aforesaid formalities shall be registered in a register administered by the regulatory authority.
Notice of any registration under this article shall be published in the Gazette. In the month of January of each year, a complete
list of registrations then in force shall likewise be published in the Gazette.
80. If a public broker is convicted of any of the crimes provided for in Sub-titles I, II and III of Title IX of Part II of Book
First of the Criminal Code, he shall, ipso facto, forfeit his office, and his name shall be struck off the register.".
Substitution of article 91 of the principal law.
"Penalty for contraventions committed by public brokers.
91. (1) A public broker who acts in contravention of any of the obligations mentioned in the foregoing articles
shall, at the instance of any interested party or of the Attorney General, be liable to a penalty of not less than fifty euro
(€50) and not exceeding five hundred euro (€500) on proceedings taken before the Civil Court, First Hall, or the Court of
Magistrates (Gozo) in its superior commercial jurisdiction, as the case may be, saving any other action arising
from this Code or any other law.
(2) The court may, moreover, order the interdiction of the public broker for a period not exceeding two years, in which case the
provisions of article 81 shall, during the time of interdiction, be applicable.".
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Substitution of article 550 of the principal law.
"Commercial fees. 550. It shall be possible for commercial fees, different from those established in the Schedule hereto, to be agreed between parties. The service provider shall inform his client of the applicable fee or the basis on which the fee is to be determined before the service is provided.".
Amendments to the Traffic (Regulation) Ordinance.
Cap. 65
Amendment of article 2 of the principal law.
Addition of new article 16B to the principal law.
Act.
(2) This Part shall come into force upon publication of this
shall be added the following new definition:
" "Member State" means a Member State of the
European Economic Area;";
(b) immediately after the definition "public transport vehicle", there shall be added the following new definition:
"Treaty" means the Treaty establishing the
European Community;"; and
(c) immediately after the proviso thereof, there shall be added the following new proviso:
"Provided further that unless otherwise stated in this Act, the definitions in the Services (Internal Market) Act, 2009 shall
apply.".
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shall be added the following new article 16B:
"Applicability of the Services (Internal Market) Act, 2009.
16B. Nothing in this Ordinance shall be construed as limiting, restricting or otherwise affecting the application of any law, regulation
or other rule made in pursuance of the Services (Internal Market) Act, 2009.".
Amendment of article 18 of the principal law.
Amendments to the Postal Services Act. Cap. 254.
Act.
(2) This Part shall come into force upon publication of this
Addition of new article 9A to the
be inserted the following new article 9A:
principal Act.
"Default of a reply does not amount to the granting of a licence.
Cap. 418.
9A. Due to overriding reasons of public interest, the absence of a communication within the time periods provided for in article 9 shall not be construed to imply the automatic granting of the licence applied for, but the applicant shall, if he considers the delay to be unjustified or he has suffered any prejudice as a result of such delay, have a right of appeal in accordance with the provisions of Part VIII of the Malta Communications Authority Act.".
Amendments to the
Accountancy
Profession Act.
Cap. 281.
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Amendment of article 2 to the
Act.
(2) This Part shall come into force upon publication of this
principal Act.
Amendment of article 3 to the principal Act.
amended as follows:
(a) in the definition "accountancy firm" the words "a partnership whether a civil partnership or a commercial partnership
including a company," shall be substituted by the words "an entity, regardless of its legal form,";
(b) immediately after the definition "accountancy firm" there shall be added the following new definition:
" "Appeals Tribunal" means the Administrative Review Tribunal established by article 5(1) of the Administrative Justice
Act;"; and
(c) in the definition "audit firm" the words "a civil partnership or a commercial partnership, including a company"
shall be substituted by the words "an entity, regardless of its legal form,".
shall be substituted by the words "Except where otherwise
prescribed, no person shall";
(b) in subarticle (2) thereof -
(i) in paragraph (b) thereof, the word "and" shall be deleted; and
(ii) in the second proviso to paragraph (d) thereof, immediately after the words "according to the particular circumstances;"
there shall be added the word "and";
(c) in subarticle (3) thereof, the words "in any country outside Malta," shall be substituted by the words "in
any third- country,";
(d) in subarticle (4) thereof, the words "not exceeding one thousand and one hundred and sixty-four euro and sixty- nine
cents (€1,164.69)" shall be substituted by thewords "not exceeding one thousand and two hundred euro (€1,200.00)",
the words "not exceeding five thousand and eight hundred and
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twenty-three euro and forty-three cents (€5,823.43") shall be substituted by the words "not exceeding six thousand euro
(€6,000.00)" and the words "not exceeding one hunderd and sixteen euro and forty-seven cents (€116.47)"
shall be substituted by the words "not exceeding one hundred and twenty euro (€120.00)"; and
(e) in subarticle (5) thereof, the words "not exceeding eleven thousand and six hundred and forty-six euro and eighty- seven
cents (€11,646.87)" shall be substituted byhte words "not exceeding twelve thousand euro (€12,000.00)".
(i) in paragraph (a) thereof, the words "and to advise the Minister;" shall be substituted by the words "and,
in the case of warrants, whether to advise the Minister to issue such warrants and, in the case of practising certificates,
to decide whether to issue such practising certificates;";
(ii) in paragraph (b) thereof, the words "to deal with" shall be substituted by the words "to deal, through disciplinary
committees appointed under article 7(16), with";
(iii) in paragraph (c) thereof, the words "per warrant holder or firm;" shall be substituted by the words "per
warrant holder, practising certificate holder or firm;";
(iv) in paragraph (e) thereof, the words "Directive
2006/34/EC;" shall be substituted by the words "Directive
2006/43/EC;";
(v) paragraphs (h) and (i) thereof shall be renumbered as paragraphs (j) and (k) respectively;
(vi) immediately after paragraph (g) thereof, there shall be added the following new paragraphs (h) and (i):
"(h) to carry out all such things as may be necessary to meet the obligations arising from the Services (Internal Market)
Act, 2009, and to fulfill the powers, functions and responsibilities attributed to a competent authority in terms of the same Act,
including the provision of assistance to competent
Amendment of article 7 of the principal Act.
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authorities of other Member States in accordance with the provisions of the same Act;
Cap. 451.
(i) to carry out all such things as may be necessary to meet the obligations arising from the Mutual Recognition of Qualifications
Act;";
(b) in subarticle (13) thereof, immediately after the words "pertaining to them", there shall be added the
words "within fifteen days after the date on which the change occurs";
(c) in the proviso to subarticle (13) thereof, the word
"may" shall be substituted by the word "shall"; and
Amendment of article 8 to the principal Act.
(d) in subarticle (16) thereof, immediately after the words "under subarticle (1)(b)" there shall be added the words "or under any regulations made by the Minister in terms of article 8A,".
(i) paragraphs (g), (h), (i) and (j) thereof shall be renumbered as paragraphs (h), (i), (j) and (l) respectively;
(ii) immediately after paragraph (f) thereof, there shall be added the following new paragraph (g):
"(g) the procedure to be followed by the Board in relation to applications for the issue of warrants or practising certificates
under article 4;";
(iii) immediately after paragraph (j) thereof, as renumbered, there shall be added the following new paragraph (k):
"(k) the implementation of the powers, functions and responsibilities attributed to the Board as a competent authority
in terms of the Services (Internal Market) Act, 2009;";
(iv) in paragraph (l) thereof as renumbered, the words "fine (multa) of twenty-three thousand, two hundred and ninety-three euro and seventy-three cents (€23,293.73)," shall
be substituted by the words "ifne (multa) of twenty-five thousand euro (€25,000.00)," and the words "fine (multa) of one hundred and sixteen euro
A 939
and forty-seven cents (€116.47)" shall be substituetd by the words "fine (multa) of one hundred and twenty euro (€120.00)";
(b) in subarticle (2) thereof -
(i) the words "of warrant holders and holders of practising certificates on" shall be substituted by the words "of
warrant holders, practising certificate holders or firms on";
(ii) in paragraph (a) thereof, the words "holders and practising certificate holders" shall be substituted by the words
“holders, practising certificate holders or firms";
(iii) in paragraph (b) thereof, the words "warrant holder or practising certificate holder, or his employees" shall be
substituted by the words "warrant holder, practising certificate holder, firm or their employees";
(iv) in paragraph (c) thereof, the words "warrant holders and practising certificate holders;" shall be substituted by
the words "warrant holders, practising certificate holders and firms;";
(v) in paragraph (i) thereof, the words "any regulations" shall be substituted by the words "any provision of this
Act and any regulations";
(vi) paragraphs (l), (m) and (n) thereof shall be renumbered as paragraphs (m), (n) and (o) respectively;
(vii) immediately after paragraph (k) thereof, there shall be added the following new paragraph (l):
"(l) the implementation of the powers, functions and responsibilities attributed to the Board as a competent authority
in terms of the Services (Internal Market) Act, 2009"; and
(viii) in paragraph (m) thereof, as renumbered, the words "warrant holders and practising certificate holders" shall be
substituted by the words "warrant holders, practising certificate holders and firms".
Amendment of article 8A of the principal Act.
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Amendment of article 10 of the principal Act.
(a) in the second proviso to subarticle (1) thereof, the words "any other service provided by such firms shall not be incompatible with their main object, as aforesaid." shall be substituted by the words "a firm may provide other services subject to compliance at all times with the rules on independence and professional ethics set out in the Code of Ethics and any other regulations, directives or guidelines issued in terms of article 8.";
Amendment of article 11 of the principal Act.
Amendment of article 12 of the principal Act.
Amendment of article 15 of the principal Act.
Addition of new articles 15A to
15C of the principal Act.
(b) in sub-article (11) thereof, the words "not exceeding two thousand and three hundred and twenty-nine euro and thirty-seven cents (€2,329.37)," shall be substituetd by the words "not exceeding two thousand and five hundred euro (€2,500.00),", the words "not exceeding eleven thousand and six hundred and forty-six euro and eighty-seven cents (€11,646.87)" shall be substituted by the words "not exceeding twelve thousand euro (€12,000.00)" and the words "not exceeding two hundred and thirty-two euro and ninety-four cents (€232.94)" shall be substituted by the words "not exceeding two hundred and fifty euro (€250.00)".
A 941
shall be added the following new articles 15A, 15B and 15C:
"Appeals. 15A. (1) A right of appeal to the Appeals Tribunal, from the decisions referred to in article 15B, shall be competent to any
person aggrieved by the decision:
Provided that in any case, a person making an appeal to the Appeals Tribunal shall also explain his juridical interest in impugning
the decision appealed from.
(2) Unless otherwise provided by the
Cap. 490.
Decisions of the Board that may be appealed from.
Administrative Justice Act or any regulations made thereunder, an appeal from the decisions referred to in article 15B shall be made
by application and shall be filed in the registry of the Appeals Tribunal within thirty days from the date on which the said decision
has been notified to the party appealing.
15B. Unless otherwise provided by law, an appeal shall lie to the Appeals Tribunal from the following decisions made under this Act:
(a) any decision of the Board not to advise the Minister to issue a warrant, taken pursuant to article 7(1)(a), and any decision
of the Board not to issue a practising certificate, taken pursuant to article 7(1)(a);
(b) any decision of the Board pursuant to article 7(1)(b) taken following an enquiry held by the disciplinary committee appointed
under article 7(16);
(c) any decision of the Board to take a measure in terms of article 7(1)(c);
(d) any decision of the disciplinary committee to impose an administrative fine pursuant to article
7(17);
A 942
Status of decision pending an appeal before the Appeals Tribunal or the Court of Appeal.
(e) any decision of the Board to refuse the registration of a firm pursuant to article 10(7) or any decision of the Board pursuant
to article 15(1) to suspend, cancel or subject to other conditions the registration of a firm or to revoke or cancel the
registration of a firm pursuant to article 15(2)(e);
(f) any decision of the Board, pursuant to article 14, to issue administrative fines or reprimands or to impose other measures;
(g) any decision taken by the Board, pursuant to article 15(1), to revoke, withdraw or suspend a practising
certificate, or to subject such practising certificate to other conditions, or to revoke or cancel a practising certificate
pursuant to article 15(2)(e);
(h) any decision taken by the Board, pursuant to article 15(1), to suspend a warrant or to subject such warrant to other
conditions;
(i) any decision taken by the Minister, on the advice of the Board, pursuant to article 15(1) or article
15(2)(d), to revoke or withdraw a warrant; and
(j) any decision taken in terms of regulations or directives issued under this Act, when the regulation or directive explicitly
grants a right of appeal in terms of this article.
15C. (1) The decision of the Board or the Minister, as the case may be, shall stand pending an appeal, whether before the Appeals
Tribunal or the Court of Appeal, and shall be adhered to by all the parties to whom the decision applies.
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(2) The Appeals Tribunal or the Court of Appeal, as the case may be, where it considers it to be appropriate, may on the application
of a party to the appeal, suspend the decision of the Board or the Minister, as the case may be, pending the final determination
of the appeal. The Appeals Tribunal or the Court of Appeal, in deciding to suspend the decision, shall state their reasons for doing
so.".
3(6)".
"(1) An auditor shall, in the case of his dismissal or resignation as auditor of an audit client during his term of appointment, inform the Board in writing of such dismissal or resignation of an audit and shall give adequate explanations for the reasons thereof.".
(a) in the marginal note thereof, immediately after the words "Disclosure of measures" there shall be added the words
"and decisions";
(b) the present article shall be renumbered as subarticle
(1) thereof; and
(c) immediately after subarticle (1) thereof, as renumbered, there shall be added the following new subarticle:
"(2) Without prejudice to the generality of subarticle (1), the Board or the Minister, as the case may be, shall notify
by registered mail the decisions taken pursuant to articles 7(1)(a), 7(1)(b), 7(1)(c), 7(17), 10(7),
Amendment of article 16 of the principal Act.
Amendment of article 17 of the principal Act.
Amendment of article 18 of the principal Act
Amendment of article 20 of the principal Act.
A 944
Addition of new article 21 to the principal Act.
14, 15(1), 15(2)(d) and 15(2)(e) to any person to whom such decision applies.".
"Demonstration of compliance with Services (Internal Market) Act,
2009.
21. A warrant holder, practising certificate holder or firm shall, if so requested by the Board and in the manner determined by the Board, demonstrate compliance with the obligations imposed on such warrant holder, practising certificate holder or firm pursuant to the Services (Internal Market) Act, 2009.".
Amendments to the Doorstep Contracts Act. Cap. 317.
Amendment of article 2 of the
Act.
(2) This Part shall come into force upon publication of this
principal Act.
Deletion of articles 4 and 5 of the principal Act.
Renumbering of article 5A of the principal Act.
Addition of new articles 6A and
6B to the principal Act.
definition "goods", there shall be added the following new definition:
" "Member 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;";
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be added the following new articles 6A and 6B:
"Obligation of the door-to door seller to give all information necessary of his own initiative.
Cap. 386. Cap. 168.
6A. (1) Every licensed door-to-door seller has to provide to the consumer free of charge, and of his own initiative the following
information:
(a) his name, legal status and whether he is operating as a commercial partnership, and what type of commercial partnership, the
address of the commercial premises in the Member State in which he is established and details enabling him to be contacted rapidly
and communicated with directly and, as the case may be, by electronic means;
(b) if he is registered as a commercial partnership under the Companies Act or under the Commercial Partnerships Ordinance under
article 5 of the Companies Act, the number of registration and all information relating to article 6 of the Companies Act;
(c) the particulars of the relevant competent authority issuing the license of a door-to-door seller or the single point of contact;
(d) where the provider exercises an activity which is subject to VAT, the identification number referred to in Article
22(1) of Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system
of value added tax;
(e) in the case of the regulated professions, any professional body or similar institution with which the door-to- door seller
is registered, the professional title and the Member State in which that title has been granted;
(f) the general conditions and clauses used by the provider.
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Information to be given by door-to- door seller on the consumer’s request.
(2) In addition to the provisions of sub- article (1), every door-to-door seller duly licensed has to provide free of charge and
on his own initiative, to the consumer, the following information:
(a) the existence of contractual clauses, if any, used by the provider concerning the law applicable to the contract and, or the
competent courts;
(b) the existence of an after-sales guarantee, if any, not imposed by law;
(c) the price of the service, where a price is pre-determined by the provider for a given type of service;
(d) the main features of the service, if not already apparent from the context.
(3) All information referred to in sub- article (1) according to the provider’s preference -
(a) has to be easily accessible to the consumer at the place where the service is provided or the contract concluded;
(b) must be easily accessed by the recipient electronically by means of an address supplied by the provider, and;
(c) must appear in any information documents, supplied to the consumer by the door-to-door seller, which set out
a detailed description of the service he provides.
6B. (1) Every door-to-door seller at the consumer’s request has to provide the following additional information:
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(a) where the price is not pre- determined by the provider for a given type of service, the price of the service or, if an exact
price cannot be given, the method for calculating the price so that it can be checked by the recipient, or a sufficiently detailed
estimate;
(b) as regards the regulated professions, a reference to the professional rules applicable in the Member State of establishment
and how to access them;
(c) information on the multidisciplinary activities and partnerships which are directly linked to the service in question
and on the measures taken to avoid conflicts of interest. That information shall be included in any information document
in which door-to-door sellers give a detailed description of their services;
(d) any codes of conduct to which the provider is subject and the address at which these codes may be consulted by electronic
means, specifying the language version available;
(e) where a provider is a member of a trade association or professional body which provides for recourse to a non-judicial
means of dispute settlement, information in this respect. The provider shall specify how to access detailed information on the characteristics
of, and conditions for, the use of non-judicial means of dispute settlement.
(2) Any information as required in sub- article (1) is to be made available or communicated in a clear and unambiguous manner, and
in good time before conclusion of the doorstep contract.".
Amendment to article 14A of the principal Act.
A 948
Substitution of article 15 of the principal Act.
Amendments to the Engineering Profession Act. Cap. 321.
"15. The Minister may make regulations for better putting into effect any of the provisions of this Act, and without
prejudice to the generality of the foregoing may by such regulations prescribe:
(a) the form in which any contract or cancellation or any clause thereof shall be made, whether generally or in respect of any
class of goods;
(b) the means of identification of any door-to- door seller licensed under this Act;
(c) such goods or services that may not be sold by means of a doorstep contract;
(d) any other matter which may be prescribed under this Act.".
Amendment of article 2 of the principal Act.
Act.
(2) This Part shall come into force upon publication of this
"Engineering Board" there shall be substituted the word
"Engineering Profession Board";
(b) immediately after the definition "Engineer" there shall be inserted the following new definition:
" "Member State" means a Member State of the
European Economic Area;";
(c) in the definition "Minister", for the word
"infrastructure" there shall be substituted the word "works"; and
(d) immediately after the definition "profession of
A 949
engineer" there shall be inserted the following new definition:
" "service provider" means a person from any Member State or any country in the European Economic Area who exercises
the engineering profession on a temporary basis in Malta;".
(i) in paragraph (a) thereof, immediately after the words "he is a citizen of Malta" there shall be added the words
"or of a Member State or is otherwise legally entitled to work in Malta"; and
(ii) for subparagraph (i) of paragraph (d) thereof, there shall be substituted the following:
"(i) he is in possession of such degree of the University of Malta or an equivalent academic qualification relating to the
engineering profession both of which, at the relevant time, are recognised by the Board to be sufficient for the purposes of this
article;"; and
(b) immediately after subarticle (4) thereof, there shall be added the following new subarticle:
Amendment of article 3 of the principal Act.
L.N. 422 of
2007.
"(5) Subarticle (2) shall be interpreted in accordance with the Recognition of Professional Qualifications Regulations, 2007.".
Addition of new article 3A to the principal Act.
"Acknowledge- ment of receipt of an application.
3A. (1) The Board shall acknowledge the receipt of an application for a warrant as soon as possible and in any case not later
than one month from the date of the receipt of the application. If the applicant does not submit all the documentation, the Board
shall inform the applicant accordingly.
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(2) The Board shall complete the procedure for examining applications as early as possible. The Board shall give its reasoned
decision within three months after the date on which the complete application is received. The Board may extend this period by
one month, provided that the applicant is notified prior to the expiration of the original period established in this sub-article.
(3) In the event that the Board does not give its decision within the period established in sub-article (2), this shall not imply
tacit approval of the application.
(4) The acknowledgement referred to in sub-article (1) shall specify:
(a) the time period within which the application shall be processed;
(b) the available means of redress;
and
(c) a statement that in the absence
of a response within the specified time period, the authorisation shall not be deemed to have been granted.".
Amendment of article 5 of the principal Act.
Addition of new article 5B to the principal Act.
"Temporary provision of services. Cap. 451.
5B. (1) Without prejudice to the Mutual Recognition of Qualifications Act and notwithstanding the provisions of article 3 of
this Act, any person established in another Member State may practise the profession of engineer in Malta on a temporary and occasional
basis provided that such person:
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(a) is legally established in another Member State for the purpose of pursuing the engineering profession in that Member State;
and
(b) has pursued the engineering profession for at least two years during the ten years immediately preceding the provision of services
where the engineering profession is not regulated in that Member State.
(2) Persons referred to in subarticle (1) shall inform the Board by means of a written declaration to be made in advance which
shall include the following:
(a) the details of an insurance cover or other means of personal or collective protection relative to professional liability.
This declaration shall be made once a year if the applicant intends to provide temporary or occasional services during the year;
(b) proof of the nationality of the applicant;
(c) an attestation certifying that the warrant holder is legally established in a Member State for the purpose of pursuing the
activities concerned and that he is not prohibited from practising the profession of engineer even temporarily, at the moment of
delivering the attestations;
(d) evidence of professional qualifications; and
(e) where applicable, any means of proof that the applicant has pursued the engineering profession for at least two years during
the previous ten years immediately preceding the provision of services.
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(3) Where the Board, in exercising its authority under this article, deems that there is a substantial difference between the professional
qualifications of the applicant and the academic qualifications required under article 3(2)(d)(i), to the extent that the difference
is such as to be harmful to public health, safety and security, the Board shall give the applicant the opportunity to show, in
particular by means of an aptitude test, that he has acquired the knowledge or competence which he lacks.
(4) The Board shall assess the temporary and occasional nature of the provision of the engineering services on a case by case basis.
(5) (a) The Board shall give its decision within one month from the date of receipt of the declaration referred to in sub-article
(2).
(b) Whenever a decision could not be given during the established time, the Board shall notify this information to the applicant
within the period established in paragraph (a). The Board shall extend this period only once for another period of one month.
(c) In the event that the Board does not give its decision within the period referred to in paragraph (b), the engineering services
falling under this article may be provided.
(6) A person exercising the profession under this article shall be deemed to be a warrant holder and the provisions of this
Act and of any other law shall apply to him in the same manner and to the same extent as with any other warrant holder.".
Amendment of article 6 of the principal Act.
(a) in subarticle (1) thereof, for the words "Engineering Board" there shall be substituted the words "Engineering
Profession Board"; and
(b) immediately after subarticle (8) thereof, there shall be added the following new subarticle:
"(9) The Board shall, in the fulfilment of its
A 953
functions, act independently and impartially.".
Addition of new article 7A to the principal Act.
"Appeals.
Cap. 490.
7A. Decisions of the Board shall be subject to appeal before the Administrative Review Tribunal established by article 5(1) of the Administrative Justice Act.".
(a) in subarticle (1) thereof, for the words from "Every warrant holder" to the words "committed by the warrant
holder," there shall be substituted the words "Every warrant holder or any person who is granted a special licence under
this Act, or any person who exercises the profession of engineer on a temporary and occasional basis or partnership registered under
this Act shall be covered by an indemnity insurance against any liability which the warrant holder or any person who is granted a
special licence under this Act, or any person who exercises the profession on a temporary and occasional basis or
the partnership may incur for compensation in respect of loss or damage to any person as a result of any negligent act, error or
omission committed by the warrant holder, or by any person who is granted a special licence under this Act, or any person who exercises
the profession on a temporary and occasional basis,";
(b) in the proviso to subarticle (1) thereof, immediately after the words "that the provisions of this subarticle shall not
apply to warrant holders" there shall be added the words "or to any person who exercises the profession of engineer on
a temporary and occasional basis";
(c) the present subarticle (2) shall be renumbered as subarticle (3) thereof and for the words, "Every warrant holder"
there shall be substituted the words "Every person"; and
(d) immediately after subarticle (1) thereof, there shall be added the following new subarticle:
"(2) The Board shall only accept any professional liability insurance of any person providing the services of engineering in
terms of article 5B(1) if the Board considers that the professional liability insurance subscribed to is
Amendment of article 10 of the principal Act.
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Amendment of article 11 of the principal Act.
Amendment of article 19 of the principal Act.
Amendments to the Education Act.
Cap. 327.
equivalent or essentially comparable as regards the purpose and cover it provides in terms of insured risk. The Board shall require supplementary insurance or guarantee in those cases when the professional liability insurance is not adequate to cover all risks.".
words, "Any agreement or other arrangement purporting to
exempt a warrant holder" there shall be added the words "or any person who is granted a special licence under this Act,
or any person who exercises the profession of engineer on a temporary and occasional basis"; and
(b) in subarticle (2) thereof, immediately after the words, "Any agreement or other arrangement whereby a warrant holder"
there shall be added the words "or a person who is granted a special licence under this Act, or any person who exercises the
profession of engineer on a temporary and occasional basis,".
Amendment of article 20 of the
Act.
(2) This Part shall come into force upon publication of this
principal Act.
follows:
(a) in subarticle (2) thereof, for the words "the national
minimum conditions:" there shall be substituted the words "the national minimum conditions." and the proviso thereto
shall be deleted;
(b) in subarticle (6) thereof, immediately after the words "received by the Minister." there shall be added the
words
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"A decision to refuse an application for a licence shall be accompanied with the reasons for refusal. Failure to notify the applicant
about the decision regarding an application for a licence within the time established in this sub-article shall, for reasons of public
interest, be deemed to be a refusal of the licence applied for:" and immediately thereafter there shall be inserted the following
new provisos:
"Provided that an application for a licence to establish a school shall not be deemed to have been filed by an applicant unless
it is duly filled in and accompanied with all required information and documentation:
Provided further that in the case of an application made under subarticle (2), an application for a licence to establish a school
shall not be deemed to have been submitted by the Catholic Church if such application is not signed by the Bishops in Ordinary of
these Islands or authorised by them in writing.";
(c) in subarticle (9) thereof, for the words "further or higher education level." there shall be substituted the words
"further or higher education level:" and immediately thereafter there shall be inserted the following new proviso:
"Provided that where an applicant for a licence is already licensed or otherwise legally established in a Member State,
the Minister, in compliance with Directive 2006/123 of the European Parliament and of the Council of 12 December, 2006 on services
in the internal market, shall not duplicate requirements or controls which are equivalent or essentially comparable as regards their
purpose to which the applicant may already be subject to in another Member State."; and
(d) for subarticle (10) thereof, there shall be substituted the following:
"(10) Where an application has been refused, suspended or cancelled, the applicant for a licence may appeal to the Court of Appeal
(Inferior Jurisdiction) according to the provisions of article 127.".
Amendment of article 28 of the principal Act.
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Amendment of article 32 of the principal Act.
Addition of new article 33A to the principal Act.
"Provided that an application made under this article shall not be deemed to have been filed by an applicant unless it is duly filled in and accompanied with all required information and documentation.".
29,".
"Temporary provision of services.
L.N. 422 of
2007.
33A. Any person established in a Member State may practise the profession of teacher in Malta on a temporary and occasional basis provided that the provisions of Part II of the Recognition of Professional Qualifications Regulations, 2007 are satisfied.".
Amendments to the Malta Transport Authority Act. Cap. 332.
Amendment of article 2 of the principal Act.
Act.
(2) This Part shall come into force upon publication of this
shall be added the following new definition:
" "Member State” means a Member State of the
European Economic Area;"; and
(b) immediately after the definition "transport of goods", there shall be added the following new definition:
" "Treaty" means the Treaty establishing the
European Community;".
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Renumbering of article 2A of the principal Act.
Addition of new article 2A to the principal Act.
"Definitions in Services (Internal Market) Act,
2009.
2A. Unless otherwise stated in this Act, the definitions in the Services (Internal Market) Act, 2009 shall apply.".
"(s) to do all such things as are necessary for facilitiating the exercise of freedom of establishment of service providers
and the free movement of services in accordance with the Services (Internal Market) Act 2009, including providing applicants, providers
or recipients with such relevant information and assistance as is necessary to access and exercise relevant service activities
and all such rights as are related thereto, and, where required, cooperating with, assisting, and providing information to the competent
authorities of other Member States:
Provided that in fulfilling the above functions and duties, the Authority shall facilitiate and encourage communication by electronic
means.".
"(7) Nothing in this article shall be construed as limiting, restricting or otherwise affecting any law, regulation or other
rule made in relation to the conditions and criteria under which the Authority may grant, renew, refuse to grant, refuse to renew,
suspend or revoke a licence for service activities falling within the scope of application of the Services (Internal Market) Act,
2009:
Provided that services in the field of transport as set out in Article 45 of the Treaty shall not be deemed to be included
within the scope of application of the Services (Internal Market) Act, 2009:
Provided further that, without prejudice to the definition of "licence" in article 2, where the Authority requires a certificate,
attestation or document proving that a requirement has been satisfied in terms of the Services (Internal Market) Act
Amendment of article 4 of the principal Act.
Amendment of article 34 of the principal Act.
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Addition of new article 35 to the principal Act.
2009, the Authority shall accept any certificate, attestation or document from another Member State which serves the equivalent purpose or from which it is clear that the said requirement has been satisfied and shall not require any such certificate, attestation or document to be produced in its original form or as a certified copy or certified translation save in cases provided for in Community instruments or where it is justified by an overriding reason relating to the public interest, including public order and public security.".
"Services falling within the scope of the Services (Internal Market) Act, 2009.
35. Where service activities fall within the scope of application of the Services (Internal Market) Act 2009, the Authority
shall respect the right of a provider that is lawfully established and providing services in another Member State to provide services
in Malta:
Provided that the Authority may impose requirements with regard to the provision of service activities where these are justified for
reasons related to public policy, public security, public health or the protection of the environment:
Provided further that in establishing whether a provider is exercising his freedom to provide services within the meaning of article
6 of the Services (Internal Market) Act, 2009 and Article 49 of the Treaty, or is an establishment case, or whether a service
provider is absolutely taking advantage of the freedom to provide services, the Authority shall assess and decide in each case
on its own individual merits and in conformity with Community legislation and the rulings of the European Court of Justice.".
Amendments to the Employment and Training Services Act. Cap. 343.
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referred to as "the principal Act".
Act.
(2) This Part shall come into force upon publication of this
substituted the following new definition:
" "Director" means the Director of Industrial and Employment Relations and includes any officer of the Department of
Industrial and Employment Relations who is authorized by the Director to act on his behalf;"; and
(b) immediately after the definition "financial year", there shall be inserted the following new definition:
Amendment of article 2 of the principal Act.
" "Member State" means a member state of the
European Union or of the European Economic Area;".
(a) subarticle (1) thereof shall substituted by the following new subarticle:
"(1) Without prejudice to the provisions of Part III of this Act, no person shall carry on an employment agency or
an employment business unless:
(a) he is the holder of a current licence granted by the Director authorizing him to carry on such an agency or business
in premises specified in the licence, or
(b) he is the holder of a relevant authorization to conduct business as an employment agency by a competent authority in a Member
State, and has notified the Director of his intention to provide or that he is providing services of an employment agency in Malta
within five working days from the date of the commencement of this activity:
Provided that for the purposes of this article, the term ‘relevant authorisation’ means the authorization to perform the services
of an employment agency issued by a competent authority of a Member State and it shall be
Amendment of article 23 of the principal Act.
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read and construed in terms of the Services (Internal
Market) Act, 2009:
Provided further that the Director may impose any necessary requirements on holders of relevant authorizations referred
to in paragraph (b) in terms of the Services (Internal Market) Act, 2009.";
(b) subarticles (2) to (13) thereof shall be deleted; and
Amendment of article 24 of the principal Act.
Amendments to the Periti Act. Cap. 390.
(c) subarticle (14) thereof shall be renumbered as sub- article (2).
"(1) Where the Director intends to refuse to grant or transfer a licence, or to revoke the same, he shall notify the applicant for, or the holder of, the licence or the person to whom it is requested that the licence be transferred, of his intention and the reasons therefor.".
and construed as one with the Periti Act, hereinafter in this Part referred to as "the principal Act".
Amendment of article 2 of the
Act.
(2) This Part shall come into force upon publication of this
principal Act.
Amendment of article 3 of the principal Act.
definition "profession", there shall be added the following new
definitions:
" "service provider" means a person from any Member State or any country in the European Economic Area who exercises
the profession on a temporary basis in Malta;
"Treaty" means the Treaty establishing the European
Community;".
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principal Act, there shall be added the following new subarticle:
L.N. 422 of
2007.
"(3) Subarticle (2) shall be interpreted in accordance with the Recognition of Professional Qualifications Regulations, 2007.".
Addition of new article 5A to the principal Act.
"Temporary provision of services. Cap. 451.
5A. Without prejudice to the Mutual Recognition of Qualifications Act and notwithstanding the provisions of articles 3 and 4 of
this Act, any person established in another Member State may practice the profession in Malta on a temporary and occasional basis
subject to further requirements as may be provided under this Act.".
"(2) The Board shall exercise its functions independently and according to its own judgment. In the exercise of its functions
the Board may:
(a) consult such persons as it may consider necessary; and
(b) appoint committees under the chairmanship of a member of the Board for the purpose of the carrying out of such duties and tasks
as the Board may assign to them.".
Amendment of article 7 of the principal Act.
Addition of new article 7A to the principal Act.
"Appeals.
Cap. 490.
7A. Decisions of the Board shall be subject to appeal before the Administrative Review Tribunal established by article 5(1) of the
Administrative Justice Act.".
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Amendments to the Malta Travel and Tourism Services Act. Cap. 409.
Amendment of article 2 of the principal Act.
Substitution of article 17 of the principal Act.
Act.
(2) This Part shall come into force upon publication of this
(a) immediately after the definition "licence" there shall be inserted the following new definition:
" "Member State" means a member state of the
European Economic Area;";
(b) immediately after the definition "public officer" there shall be added the following definition:
" "requirement" means any obligation, prohibition, condition or limit provided for in the laws or regulations, or in
the administrative provisions, or administrative practices of the Authority;"; and
(c) the definition "tourist guide" shall be deleted and substituted by the following:
" "tourist guide" means a person who guides visitors in the language of their choice and interprets the cultural
and natural heritage of Malta and/or specific area or areas, and who possesses a specific relevant qualification and
licence issued and/or recognised by the Authority;".
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following new article:
"Disclosure of interest in contract.
17. (1) Any member of the Authority or of any committee, commission or other body established by this Act who is in any way,
directly or indirectly interested in any particular matter considered or to be considered by the Authority or by such other body
shall declare the nature of his interest either at the meeting at which the matter is first considered or, if he was not at the date
of that meeting so interested in the matter, at the next meeting after he shall have become so interested.
(2) Without prejudice to the provisions of subarticle (1), where at a meeting of the Authority or by such other body any of the
following matters arises, namely -
(a) an arrangement to which the Authority is a party or a proposed such arrangement, or
(b) a contract or other agreement with the Authority or a proposed such contract or other agreement, or
(c) the assessment of any application for the issue or renewal of a licence or other authorisation and any decision relating
thereto, or
(d) any decision of the Authority taken after reviewing the methods of operation of a licensee, or
(e) any other particular matter in which any member of the Authority or such other body is in any way, directly
or indirectly interested,
then, any member of the Authority present at the meeting who otherwise than in his or her capacity as such a member has a material
interest in the matter, shall -
(i) at the meeting, disclose to the Authority the fact of such interest and the nature thereof,
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(ii) absent himself or herself from the meeting or that part of the meeting during which the matter is being discussed,
(iii) take no part in any deliberation of the Authority relating to the matter, and
(iv) not vote on a decision relating to the matter.
(3) Where a material interest is disclosed pursuant to subarticle (2), the disclosure shall be recorded in the minutes of the meeting
concerned and, for so long as the matter to which the disclosure relates is being dealt with by the meeting, the member by whom the
disclosure is made shall not be counted in the quorum for the meeting.
(4) A member of the Authority who, otherwise than in his or her capacity as such a member has a material interest in -
(a) an arrangement or proposed arrangement to which subarticle (2)(a) applies; or
(b) a contract or other agreement or a proposed contract or other agreement to which subarticle (2)(b) applies; or
(c) the assessment of any application for the issue or renewal of a licence or other authorisation and any decision relating
thereto; or
(d) any decision of the Authority taken after reviewing the methods of operation of a licensee; or
(e) any other particular matter in which any member of the Authority or by such other body is in any way, directly or indirectly,
interested,
shall neither influence nor seek to influence any decision to be made by the Authority in relation thereto.
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(5) Where at a meeting of the Authority a question arises as to whether or not a course of conduct, if pursued by a member of the
Authority, would constitute a failure by him or her to comply with the requirements of subarticles (2) and (3), the question may,
subject to subarticle (6), be determined by the chairperson of the meeting, whose decision shall be final, and where such a question
is so determined, particulars of the determination shall be recorded in the minutes of the meeting.
(6) Where at a meeting of the Authority, the chairperson of the meeting is the member in respect of whom a question to which
subarticle (5) applies falls to be determined, then the other members of the Authority attending the meeting shall choose one of
their number to be chairperson of the meeting for the purpose of determining the question concerned.
(7) Where the Minister is satisfied that a member of the Authority has acted contrary to any of the provisions of this article,
the Minister may, if he or she thinks fit, remove that member from office and, where a person is removed from office pursuant to
this subarticle, he or she shall thenceforth be disqualified for membership of the Authority.
(8) The term ‘material interest’ in this article shall include, but not be limited to, being in the same type of business
as the applicant, or licensee, as the case may be.".
(a) in subarticle (4) after the word "specified.", the following paragraph shall be added:
"Provided that the renewal of the licence shall only be subject to the continued fulfilment of the relevant applicable requirements
current at the time."; and
(b) subparagraph (7) shall be deleted and substituted by the following:
Amendment of article 18 of the principal Act.
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Amendment of article 19 of the principal Act.
"(7) A licence may be granted or renewed as subject to such requirements, conditions, limitation and exclusions as the Authority may consider necessary, appropriate and proportionate in accordance with this Act.".
(a) in paragraph (a), for the words "or provides such accommodation," there shall be substituted the words "or
provides such accommodation." and the words ", and in addition the person who will in fact operate as aforesaid will be
qualified and, or experienced to so operate to the satisfaction of the Authority;" shall be deleted; and
(b) in paragraph (a) after the paragraph ending with the words "or who in fact effects such operation or provides such accommodation.",
there shall be added the following paragraph:
Amendment of article 20 of the principal Act.
Amendment of article 27 of the principal Act.
"The person who will be responsible for such operation or provision of accommodation or who in fact effects such operation or provides such accommodation possesses the skills and competencies necessary to operate a business of a hotel, guest house, hostel, holiday premises or catering establishment or to provide accommodation to tourists in a house, as the case may be, proven to the satisfaction of the Authority by means of either a relevant formal qualification from a recognised training institution or at least two years experience in the management of a similar business activity;".
(a) in subarticle (2) after the words "as may be specified." there shall be added the following proviso:
"Provided that the renewal of the licence shall only be subject to the continued fulfilment of the relevant applicable requirements
current at the time."; and
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(b) for subarticle (4) there shall be substituted the following:
"(4) A licence may be granted or renewed as subject to such requirements, conditions, limitations and exclusions as the
Authority may consider necessary, appropriate and proportionate in accordance with this Act.".
"(a) the person applying thereof is of good character standing and is fit and proper to be granted and operate a licence in
relation to the business of an incoming tourism agent or a travel agent or of a destination management company, as the case may be:
Provided that if the applicant is a body corporate -
(i) the requirements mentioned in the preceding paragraph shall apply to that person designated to be responsible
for the management of the business activity being licensed;
(ii) the person applying thereof possesses the skills and competencies necessary to operate a business of an incoming tourism
agent, or of a travel agent or of a destination management company as the case may be, proven to the satisfaction of the Authority
by means of either a relevant formal qualification from a recognised training institution or at least two years experience in the
management of a similar business activity:
Provided further that where the applicant is a body corporate, the requirements mentioned in the preceding paragraph shall apply
to that person designated to be responsible for the management of the business activity being licensed;".
Amendment of article 28 of the principal Act.
Amendment of article 30 of the principal Act.
Amendment of article 31 of the principal Act.
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Amendment of article 32 of the principal Act.
"(1) Every tourism operation requiring a licence under this Act, except a licence to act as a tourist guide unless specifically prescribed in Regulations made under this Act, shall satisfy the Authority that it has at all times in its favour a policy of third party liability insurance and, in addition, or if required by the Authority, a policy of professional indemnity insurance, which policy or policies shall indemnify it, and any person employed by it, or otherwise acting for it, to such amount, in such manner and in respect of such matters as the Authority may establish.".
(a) in subarticle (2), after the words "as may be specified." there shall be added the following proviso:
"Provided that the renewal of the licence shall only be subject to the continued fulfilment of the relevant applicable requirements
current at the time."; and
(b) subarticle (4) shall be deleted and substituted by the following:
Amendment of article 33 of the principal Act.
"(4) A licence may be granted or renewed as subject to such requirements, conditions, limitations and exclusions as the Authority may consider necessary, appropriate and proportionate in accordance with this Act.".
"(a) (i) the person applying thereof is of good character standing and is fit and proper to be granted and operate a licence
in relation to the business of an organised excursion operator:
Provided that if the applicant is a body corporate, the requirements mentioned in the preceding paragraph shall apply to that person
designated to be responsible for the management of the business activity being licensed;
(ii) the person applying thereof possesses the skills and competencies necessary to operate a business of an organized excursion
operator, proven to the satisfaction of the Authority by means of either a relevant formal qualification from a recognised training
institution or at least two years experience in the management of a similar business activity:
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Provided that where the applicant is a body corporate, the requirements mentioned in the preceding paragraph shall apply to that person
designated to be responsible for the management of the business activity being licensed;".
(a) subarticle (1) shall be deleted and substituted by the following:
"(1) No person shall act, hold himself out as acting as a tourist guide or use the title of a "tourist guide"
unless he is in possession of a licence in accordance with this Act and regulations issued under it.";
(b) subarticle (2) shall be deleted and substituted by the following:
"(2) A licence may be granted and renewed for such periods and as subject to such requirements, conditions, limitations
and exclusions as the Authority may consider necessary, appropriate and proportionate in accordance with this Act and regulations
issued under it."; and
(c) subarticle (4) shall be deleted.
"37. A licence shall not be granted for the purposes of article 36 unless:
(a) the person applying thereof is of good character and is fit and proper to act as a tourist guide; and
(b) the person applying thereof possesses the relevant qualification/s to act as tourist guide; or
(c) demonstrates that he has the practical and theoretical competencies and experience deemed and recognized to be equivalent
to (b) above by the Authority in terms of this Act and
Amendment of article 35 of the principal Act.
Amendment of article 36 of the principal Act.
Amendment of article 37 of the principal Act.
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Amendment of article 47 of the principal Act.
Amendments to the Malta Resources Authority Act. Cap. 423.
regulations issued under it.".
"(b) require that any category or class of persons working, whether employed or self-employed, in any tourism operation shall be in possession of such licences or shall be in possession of such certificates of competence or qualifications as may be prescribed;".
Amendment of article 2 of the principal Act.
Act.
(2) This Part shall come into force upon publication of this
service however so described relating to resources", there shall be substituted the words "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";
(b) immediately after the definition "authorisation", there shall be inserted the following new definition:
" "authorisation scheme" means any authorisation or other procedure of an administrative nature, under which
a provider or recipient is in effect required to take steps in order to commence the activity in question and obtain from a competent
authority authorisation concerning access to a service activity or the exercise thereof;";
(c) immediately after the definition "energy", there shall be inserted the following new definition:
" "establishment" means the actual pursuit of an
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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;";
(d) immediately after the definition "gas", there shall be inserted the following new definition:
" "Internal Market Information System” means the information system through which competent authorities exchange information
in fulfillment 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;";
(e) immediately after the new definition "Internal Market Information System", there shall be inserted the
following new definition:
" "Member State” means a member state of the
European Economic Area;";
(f) immediately after the new definition "Member
State", there shall be inserted the following new definition:
" "Member State of establishment" means the Member State in whose territory the provider of the service concerned is
established;";
(g) immediately after the new definition "Member State of establishment", there shall be inserted the following new
definition:
" "Member State where the service is provided" means the Member State where the service is supplied by a provider established
in another Member State;";
(h) immediately after the definition "Minister", there shall be inserted the following new definition:
" "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
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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;";
(i) immediately after the definition "public officer", there shall be inserted the following new definition:
" "recipient" means any natural person who is a national 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;";
(j) immediately after the definition "resources", there shall be inserted the following new definition:
" "service” means any self-employed activity performed for an economic consideration as referred to in Article 50 of the
Treaty;";
(k) immediately after the new definition "service", there shall be inserted the following new definition:
Cap. 379.
" "services of a general economic interest" means those services declared by the Minister responsible for Competition
as services of general economic interest in terms of article 30(3) of the Competition Act;".
(l) immediately after the new definition "services of a general economic interest", there shall be inserted the following
new definition:
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" "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 the Treaty and established in a Member State, who offers or provides a service;"; and
(m) immediately after the definition "transmission", there shall be inserted the following new definition:
" "Treaty" means the Treaty establishing the
European Community;".
Addition of new article 39 to the principle Act.
"Service providers.
39. (1) In regulating access to service activities falling under this Act and, or the exercise thereof, the Authority shall,
where such service activities fall within the scope of the Services (Internal Market) Act, 2009:
(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:
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(a) where the service activity is subject to an authorisation scheme or the fulfillment 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 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.
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(3) Where the number of authorisations available for a service activity is limited because of the scarcity of available
natural 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 open competition, including
in particular, adequate publicity about the launch, conduct and completion of the procedure. In establishing the rules for the 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 confer any other advantage on the service provider whose authorisation
has just expired or on any person having any particular links with that provider.
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(5) An authorisation granted by the Authority shall enable the service provider to have access to the service 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 certain 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 fulfillment 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:
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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 fulfills 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 -
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(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 Article 49 of the Treaty, or is an establishment case, or whether a service provider is abusively taking advantage
of the freedom to provide services, the Authority shall assess and decide each case on its individual merits and in conformity with
Community legislation and rulings of the European Court of Justice.
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(8) Without prejudice to sub-article (7), in exceptional cases only, the Authority may, in respect of a service provider established
in another Member State, take measures in order to ensure the safety of services provided in Malta. When taking such measures, the
Authority shall follow the procedure established under the Fourth Schedule to the Services (Internal Market) Act, 2009,
and ensure the fulfillment 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, 2009;
(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, 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.
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(9) (a) The Authority shall require service providers established in Malta and falling under its area of competence to keep
it updated at all times with the information it identifies as necessary and objectively justified for it to fulfill its supervisory
function of services in terms of this Act and the Services (Internal Market) Act, 2009.
(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, 2009. 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:
(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, 2009;
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(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 (Internal Market) Act, 2009.".
Amendments to the Veterinary Services Act. Cap. 437.
Act.
(2) This Part shall come into force upon publication of this
Amendment of article 43 to the
follows:
principal Act.
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(a) subarticle (3) thereof shall be amended as follows:
Cap. 451.
(i) in paragraph (b) thereof, immediately after the words "the Council," there shall be added the words "after
consultation with the Malta Qualifications Council and in terms of the Mutual Recognition of Qualifications Act and legislation
made thereunder,", and for the words ", if any" there shall be substituted the words "or in a Member State";
(ii) in paragraph (g) thereof, immediately after the words "citizen of Malta" there shall be added the words "or
of a Member State";
(b) immediately after subarticle (3) there shall be added the following new subarticles:
"(4) (a) The Council shall acknowledge receipt of an application for a warrant as soon as possible and in any case by
not later than one month of receipt of all relevant documentation submitted in fulfilment of the requirements listed in the last
preceding sub-article. The acknowledgment shall include the time by which the Council expects to reach a decision in terms of this
sub-article and the available means of redress from decisions of the Council:
Provided that in the case of incomplete documentation, the Council shall inform the applicant accordingly:
Provided further that where the applicant is already established in another Member State and, or has obtained his qualifications in
another Member State and, or is a citizen of another Member State, the Council may seek to verify any of the documentation submitted
by the applicant with the relevant competent authority of that Member State in terms of the Services (Internal Market)
Act,
2009.
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Cap. 451.
L.N. 422 of 2007
(b) The Council shall examine all documentation submitted by the applicant as early as possible and lead to a duly substantiated
decision within three months. Such period shall commence to run from the date of receipt of all necessary documentation. Where duly
motivated, this period may be extended by one month by the Council, provided that the applicant is notified before the original period
set in paragraph (a) has expired.
(c) Lack of response within the timescales set in accordance with this sub-article shall not be deemed to imply the tacit
approval of the applicant’s application.
(5) Without prejudice to sub-articles (2) and (3), and in terms of the Mutual Recognition of Qualifications Act, and the Recognition
of Professional Qualifications Regulations, 2007, a person may provide veterinary services in Malta, on a temporary and occasional
basis, provided that:
(a) he is legally established in another Member State for the purpose of pursuing the profession of a veterinary surgeon
in that Member State; and
(b) he has pursued the profession of a veterinary surgeon for at least two years during the preceding ten years.
(6) (a) Persons referred to in sub- article (5) shall inform the Council in advance of their intention to provide veterinary
services in Malta by means of a written declaration. Such written declaration shall include:
(i) proof of nationality;
(ii) an attestation certifying that the person is legally established in another Member State for the purpose of pursuing the
profession of a veterinary surgeon in that Member State;
(iii) evidence of his professional qualifications and of his practice during the preceding ten years;
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(iv) details of his current insurance cover or of any other means of collective protection with regard to professional liability,
as it may be applicable;
(v) description of the services intended to be provided and the location from where such services are intended to be provided.
(b) (i) The Council shall, immediately upon receipt of a declaration in terms of the preceding paragraph, send an acknowledgement
to the applicant and inform him of any missing documentation.
(ii) The Council shall, within a maximum of one month from the date of an acknowledged receipt of a completed declaration and
all necessary accompanying documents, inform the applicant of the outcome of the checks of the submitted qualifications and documents.
(iii) In case of difficulty resulting in delay, the Council shall inform the applicant making the declaration, within the
first month, of the reason for the delay and the timescale within which the Council’s decision shall be finalised:
Provided that the extended timescale shall not be of more than one month.
(iv) In the absence of a reaction from the Council within the deadlines set in this sub-article the service may be provided.
(c) In making its decision in terms of this and the preceding subarticle, the Council shall assess and determine each application
based on its individual merits.
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(7) (a) The Veterinary Surgeons’ Council shall keep a list within the Veterinary Surgeons’ Register of persons
approved for the provision of veterinary services on a temporary or occasional basis under this article.
(b) This registration shall be valid for one year and shall be renewed, in advance, for every year in which the applicant intends
to provide temporary or occasional services in Malta during that year:
Provided that, for reasons of public and animal health, the person shall be required to inform the Council each time he intends
to provide veterinary services on a temporary or occasional basis in Malta, fifteen days in advance and shall provide the Council
with the information in terms of subarticle (6)(a)(v)."; and
(c) subarticle (5) shall be renumbered as sub-article (8)
thereof and shall be amended as follows:
(i) in paragraph (a) thereof, the words "by the
President of Malta" shall be deleted; and
(ii) in paragraph (b) thereof, immediately after the words "the Council" there shall be added the words "after
consultation with the Malta Qualifications Council".
Amendment of article 45A of the principal Act.
Amendments to the Trading Licences Act. Cap. 441.
Act.
(2) This Part shall come into force upon publication of this
substituted the following:
Amendment of article 2 of the principal Act.
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" "commercial fair" means an event in one location in which more than one participant display or promote their goods
or services from different sites of such location with a view to sell such goods or services from such location or from elsewhere;";
(b) immediately after the definition "commercial fair" there shall be inserted the following new definition:
" "commercial exhibition" means an event in one location in which one participant displays or promotes his goods or
services with a view to sell such goods or services from such location or from elsewhere:
Provided that such event shall not comprise the display or promotion of goods or services for wholesale or retail from a premises
licensed for such purposes;";
(c) immediately after the definition "commercial premises" there shall be inserted the following new definition:
" "exhibition" means an event in one location in which one or more participants display or promote their goods or services
without the intention to sell such goods or services from such location or from elsewhere;"; and
(d) immediately after the definition "street" there shall be added the following new definition:
Deletion of articles 5 to 7 of the principal Act.
Renumbering and amendment of article 8 of the principal Act.
" "the Treaty" means the Treaty establishing the
European Community.".
"Provided that the Minister may appoint a substitute secretary in the following cases:
(a) in cases of urgency if the designated secretary is in any way not available to perform his duties; and
(b) in cases where the designate secretary abstains himself for the same reasons that a member of the
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board may abstain himself as mentioned above.".
Renumbering of articles 9 to 12 of the principal Act.
Addition of new article 10 to the principal Act.
"Activities requiring licence and permits.
10. (1) No commercial activity shall be carried out in Malta without a licence from the regulatory authority:
Provided that any commercial activity, as may be prescribed, may:
(a) be deemed to be licensed following a notification made to the regulatory authority prior to commencement of the commercial
activity by the person who undertakes to carry out the intended activity;
(b) be deemed to be licensed following a notification made to the regulatory authority, within a prescribed time, after commencement
of the commercial activity:
Provided further that all persons carrying out any commercial activity shall still be required to comply with the relevant provisions
of this Act and of any regulations subsidiary to it, irrespective of the type whether the commercial activity is licensed as a result
of an application to the regulatory authority or is deemed to be licensed following a notification to the regulatory authority.
(2) Certain activities as may be prescribed may:
(a) be designated as not requiring a licence but requiring other relevant permits from the local authority and, or the Commissioner
of Police or be subject to conditions issued by the local authorities and, or the Commissioner of Police;
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(b) be designated as requiring other relevant permits, in addition to a licence from the regulatory authority, including:
(i) a permit from the local authority; and
(ii) a permit from the
Commissioner of Police:
Provided that a person who holds on any special or special day or days:
(a) any procession or other activity held in a public place held in the context of a feast, any band march, any disco,
ball, dance or any other similar activity, irrespective of the name by which it is called; or
(b) a sporting activity which is held across more than one locality or on a national basis; or
(c) any activity organised by a political party
shall only require a permit from the
Commissioner of Police issued under this Act.
(3) The issuing of a licence by a regulatory authority or a permit by the local authority or Commissioner of Police
may be subject to:
(a) the submission and evaluation of documents and other prescribed information as may be deemed necessary in order to ensure
fulfillment of licence requirements;
(b) authorizations, permits, approvals and clearances from other entities as may be prescribed and applicable by other relevant
legislation current at the time;
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Cap. 451.
(c) compliance with terms and conditions as may be prescribed, including the possession of relevant qualifications in line
with the Mutual Recognition of Qualifications Act and of any regulations made thereunder:
Provided that the regulatory authority may require the applicant to prove his competence to carry on the relevant commercial
activity by means of other qualifications for reasons of overriding public interests, in terms of Directive 2006/123 of the European
Parliament and of the Council of 12
December, 2006 on services in the internal market:
Provided further that where a person is legally established to carry on in another Member State a commercial activity falling under
the implementing provisions of Directive
2006/123 of the European Parliament and of the Council of 12 December, 2006 on services in the internal market and is seeking a licence
in Malta, the regulatory authority, in compliance with same Directive, shall not duplicate requirements or controls which are
equivalent or essentially comparable as regards their purpose to which such person may already be subject to in another Member State.
(4) Notwithstanding any licence, permit or authorisation issued, the Commissioner of Police may:
(a) where any affray or tumult happens or is expected to happen in any place, order every commercial premises in or near the place
where the affray or tumult happens or is expected to happen, to be kept closed during such time as, in the opinion of the
Commissioner of Police, is reasonably necessary;
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(b) for reasons of public order, public safety or public morality, stop any activity in respect of which any permit or licence
or authorization was issued or should have been issued under this Act.".
Addition of new article 11 to the principal Act.
"Commercial activity on a non- permanent and occasional basis.
11. Where a person is already licensed or otherwise legally established to carry on a commercial activity in another Member State,
and that person wishes to carry out such commercial activity in Malta on a non- permanent and occasional basis, the regulatory authority
shall not prevent that person from doing so by imposing any requirements which are discriminatory, unnecessary or disproportionate:
Provided that the regulatory authority may impose such 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
article 16 of the Services (Internal Market) Act, 2009 and Article 49 of the Treaty, or is an establishment case, or whether a service
provider is abusively taking advantage of the freedom to provide services, the competent authority shall assess and decide each case
on its individual merits and in conformity with Community law and rulings of the European Court of Justice.".
Deletion of articles 13 to 18 and Parts III to V of the principal Act.
17 and Part V and article 18 of the principal Act shall be deleted.
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thereof, and articles 19 to 22 of the principal Act shall be deleted.
Renumbering of Part VI and deletion of articles 19 to 22 of the principal Act.
Renumbering of article 23 of the principal Act.
Deletion of article 24 and 25 of the principal Act.
Addition of new article 13 to the principal Act.
"Selling from open-air markets.
13. When an open air market has been established in a locality, no person shall be allowed to carry on any commercial activity
from a fixed place in such a market unless he complies with such conditions as may be prescribed.".
Addition of new article 14 to the principal Act.
"Vending machines, etc.
14. No person shall place any vending machine or any machine known as kiddie ride machine in any street without the necessary authorisation
as may be prescribed.".
IV thereof.
"(f) for establishing the penalties or administrative sanctions to which any offender against the provisions of this Act and regulations made thereunder shall be liable;".
Renumbering of articles 26 and
27 of the principal Act.
Renumbering of Part VII of the principal Act.
Renumbering and amendment of article 28 of the principal Act.
Renumbering of article 29 of the principal Act.
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Renumbering and amendment of article 30 of the principal Act.
Renumbering of articles 31 to 33 of the principal Act.
Amendments to the Cultural Heritage Act. Cap. 445.
(a) in subarticle (1) thereof, for the words "as may be prescribed in respect of that offence" there shall be substituted
the words "and, or administrative sanctions as may be prescribed in respect of that offence";
(b) for subarticle (2) thereof there shall be substituted the following:
"(2) The Minister shall prescribe the penalties and administrative sanctions that may be demanded by the regulatory authority
in relation to any specified offence."; and
(c) in subarticle (3) thereof, after the word "penalty" there shall be added the words "and, or
administrative sanctions".
Amendment of article 33 of the
Act.
(2) This Part shall come into force upon publication of this
principal Act.
words "the requirements of articles 31 or 32." there shall be
substituted the words "the requirements of articles 31 or 32:" and immediately thereafter there shall be inserted the following
proviso:
"Provided that the decision of the Minister to grant or to refuse an application shall be notified in writing to the applicant
within four months from the date of receipt of the application. Failure to notify the applicant about the decision regarding an
application for a warrant within the time established shall be deemed, for reasons of public interest, to be a refusal
of the warrant applied for. Where no decision has been notified to the applicant within the time established, such applicant may
appeal before the Court of Appeal constituted as
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provided in article 41(6) of the Code of Organization and Civil
Procedure:
Provided further that an application for a warrant shall not be deemed to have been filed by an applicant unless it is duly filled
in and accompanied with all required information and documentation.".
Substitution of article 33A of the principal Act.
"Temporary provision of services. Cap. 451.
33A. (1) Without prejudice to the Mutual Recognition of Qualifications Act and notwithstanding the provisions of article 31 of
this Act, any person established in another Member State may practise the profession of a restorer in Malta on a temporary and occasional
basis provided that such person:
(a) is legally established in another Member State for the purpose of pursuing the restorer’s profession in that Member State;
and
(b) has pursued the restorer’s profession for at least two years during the ten years immediately preceding the provision of
services where the restorer’s profession is not regulated in that Member State.
(2) Persons referred to in subarticle (1) shall inform the Board by means of a written declaration to be made in advance, which
declaration shall include the following:
(a) the details of an insurance cover or other means of personal or collective protection relative to professional liability.
This declaration shall be made once a year if the service provider intends to provide temporary or occasional services during the
year;
(b) proof of the nationality of the service provider;
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(c) an attestation certifying that the warrant holder is legally established in a Member State for the purpose of pursuing the
activities concerned and that he is not prohibited from practising the profession of a restorer even temporarily, at the moment of
delivering the attestations;
(d) evidence of professional qualifications; and
(e) where applicable, any means of proof that the service provider has pursued the restorer’s profession for at least
two years during the previous ten years immediately preceding the provision of services.
(3) Where the Board, in exercising its authority under this article, deems that there is a substantial difference between the professional
qualifications of the service provider and the academic qualifications required under article 31, to the extent that the difference
is such as to be harmful to public health, safety and security, the Board shall give the service provider the opportunity to show,
in particular by means of an aptitude test, that he has acquired the knowledge or competence which he lacks.
(4) The Board shall assess the temporary and occasional nature of the provision of the services on a case by case basis.
(5) The Board shall, within one month from the date of receipt of the declaration referred to in subarticle (2), inform the
service provider either of its decision not to check his qualifications or of the outcome of such check. Whenever a decision
cannot be given during the established time, the Board shall notify this information to the service provider within the period established
in this subarticle. The Board may extend this period only once for another period of one month.
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(6) In the event that the Board does not give its decision within the period referred to in subarticle (5), the restoration services
may be provided.
(7) A person exercising the profession under this article shall be deemed to be a warrant holder and the provisions of this
Act and of any other applicable law shall apply to him in the same manner and to the same extent as with any other warrant
holder.".
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[Article 6(1)]
Services and matters excluded from the application of article 6(1) (1) Services of general economic interest, inter alia:
(a) in the postal sector, services covered by Directive 97/67/EC of the European Parliament and of the Council of 15
December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality
of service;
(b) 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;
(c) 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;
(d) water distribution and supply services and waste water services; (e) treatment of waste.
(2) Matters covered by Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 on the posting of workers
in the framework of the provision of services.
(3) Matters covered by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and on the free movement of such data.
(4) Matters covered by Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom
to provide services.
(5) The activity of judicial recovery of debts.
(6) Matters covered by Title II of Directive 2005/36/EC as transposed into Maltese law by virtue of the Recognition of Professional
Qualifications Regulations, 2007, as well as requirements in the Member State where the service is provided which reserve an activity
to a particular profession.
(7) Matters covered by Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons or self employed
persons and to members of their families moving within the Community.
(8) As regards administrative formalities concerning the free movement of
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persons and their residence, matters covered by the provisions of Directive 2004/
38/EC on the right of citizens of the European Union and their family members to move and reside freely within the territory of
the member states with which beneficiaries must comply.
(9) As regards third country nationals who move to another Member State in the context of the provision of a service, the possibility
for Member States to require visa or residence permits for third country nationals who are not covered by the mutual recognition
regime provided for in Article 21 of the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition
of checks at the common borders or the possibility to oblige third country nationals to report to the competent authorities on or
after their entry.
(10) As regards the shipment of waste, matters covered by Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision
and control of shipments of waste within, into and out of the European Community.
(11) Copyright, neighbouring rights and rights covered by Council Directive
87/54/EEC of 16 December 1986 as transposed into Maltese law by virtue of the Copyright Act, and regulations made thereunder, on the
legal protection of topographies of semiconductor products and by Directive 96/9/EC of the European Parliament and of the Council
of 11 March 1996 on the legal protection of databases, as well as industrial property rights.
(12) Acts requiring by law the involvement of a notary public.
(13) Matters covered by Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audit of annual
accounts and consolidated accounts.
(14) The registration of vehicles leased in another Member State.
(15) Provisions regarding contractual and non-contractual obligations, including the form of contracts, determined pursuant
to the rules of private international law.
[(Article 8(3) and (4)]
Cooperation with a competent authority of another Member State
(1) When a service is being provided in another Member State by a provider established in Malta, a competent authority
shall cooperate with the relevant competent authority of another Member State, and fulfill its obligations as
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stipulated hereunder:
(a) when receiving a request from the relevant competent authority of another Member State, a competent authority shall confirm
whether a provider is established in Malta and that to its knowledge the provider is not exercising his activity in an unlawful manner;
(b) the competent authority shall carry out such checks, inspections and investigations as requested and, or necessary, and shall
inform the relevant competent authority in the other Member State of the results and, or of any measures taken by it:
Provided that a competent authority may decide on which measures are appropriate;
(c) in the event that a competent authority encounters difficulty in meeting a request for information or in carrying out checks,
inspections or investigations, it shall rapidly inform the requesting competent authority with such difficulties in order to find
a solution.
(2) Upon gaining actual knowledge of any conduct or specific acts by a provider established in Malta which provides services in
other Member States, that, to its knowledge, could cause serious damage to the health and safety of persons or to the environment,
the competent authority shall inform all other relevant competent authorities of other Member States and the Commission within the
shortest possible period of time.
(3) When a service is being provided in Malta, in the event of a temporary movement by a provider established in another Member
State:
(a) at the request of the relevant competent authority of the Member State of establishment, the competent authority shall carry
out checks, inspections and investigations necessary for ensuring the effective supervision by the competent authority
of establishment:
Provided that a competent authority may decide on the most appropriate manner to meet the request by the Member
State of establishment;
(b) the competent authority may, on its own initiative, conduct checks, inspections and investigations on the spot,
provided that those checks, inspections and investigations are not discriminatory, motivated by the fact that the provider is
established in another Member State and are proportionate;
(c) in the event that a competent authority encounters difficulty in meeting a request for information or in carrying out checks,
inspections or investigations, it shall rapidly inform the requesting competent authority with
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such difficulties in order to find a solution;
(d) with respect to the requirements imposed by the competent authority in terms of article 6(3), the competent authority
shall take all measures necessary to ensure that the provider complies with these requirements and shall carry out checks, inspections
and controls necessary to supervise the service provided.
(4) Where a competent authority becomes aware of serious and specific acts or circumstances relating to a service activity that
could cause serious damage to health and safety of persons or to the environment in Malta or in the territory of other Member States,
the competent authority shall inform the relevant competent authority of the Member State of establishment, the other Member
States concerned and the Commission within the shortest possible time.
[Article 8(6)]
Procedure to be followed on transmission of information on the good repute of a provider
(1) In complying with a request for information on the good repute of a provider, a competent authority shall abide by the provisions
of disclosure of information provided under any other law.
(2) Without prejudice to paragraph (1), a competent authority upon receipt of a request by another competent authority shall
supply any information on disciplinary or administrative decisions or on any other decision concerning a state of insolvency or
bankruptcy which are directly relevant to the provider’s competence or reliability.
(3) In the event that a request concerns the disclosure of information relating to sanctions and administrative decisions,
a competent authority shall ensure that such sanctions and decisions are final.
(4) In the event that a request concerns the disclosure of information on any other enforceable decision, the competent authority
shall clearly indicate whether the decision is final or subject to appeal. Should the latter be the case, the competent authority
shall provide the expected time when the decision of appeal is expected to be delivered.
(5) In the event that a competent authority receives a request from a competent authority in another Member State relating
to the disclosure of information on a criminal sanction of a service provider which is directly relevant
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to the provider’s competence or professional reliability, the competent authority shall refer such request to the Commissioner of
Police and relay back the information received to the requesting competent authority:
Provided that a request made pursuant to the objectives mentioned in this sub-article must be duly substantiated, and the reason of
the request is made known to the competent authority.
(6) The competent authority which supplies the information shall inform the service provider that that information has been disclosed.
[(Article 6(3)]
Mutual assistance in the case of a case-by-case derogation
(1) Where a competent authority intends to take a measure pursuant to article 6(3) of this Act, the following procedure shall apply
without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation.
(2) A competent authority shall request the competent authority in the Member State of establishment to take measures with
regard to the provider, supplying all relevant information on the services and the circumstances of the case.
(3) The competent authority in the Member State of establishment shall, within the shortest time possible, check whether the provider
is operating lawfully and verify the acts underlying the request.
(4) Following a reply from the competent authority in the Member State of establishment of the measures taken or envisaged to be
taken or, as the case may be, the reason why it has not taken any measures, the competent authority shall notify the European Commission
and the competent authority in the Member State of establishment of its intention to take measures, for the following reasons:
(a) why it believes the measures taken or envisaged by the competent authority in the Member State of establishment are inadequate;
(b) why it believes the measure it intends to take fulfills the following conditions:
(i) the national measure has not been subject to Community harmonisation in the camp of the safety of services;
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(ii) the measure provides for a higher level of protection of the recipient than would be the case in a measure taken by the relevant
competent authority in the Member State of establishment in accordance with its national provisions;
(iii) the relevant competent authority in the Member State of establishment has not taken any measures or has taken measures which
are insufficient as compared with those referred in sub-paragraph (ii);
(iv) the measures are not proportionate.
(5) The measures may not be taken before fifteen working days from the date of notification as provided in paragraph (4).
(6) However the competent authority shall, in case of urgency, refrain from following the above procedure, and shall notify the
measures taken, together with the reasons of urgency, within the shortest possible period of time to the Commission and the relevant
competent authority in the Member State of establishment.
[Article 10(1) and (2)] Information to be provided to a recipient
(1) A provider established in Malta shall make the following information available to a recipient at all times:
(a) his name, legal status and form, the registered geographic address at which he is established and details enabling him to
be contacted rapidly and communicated with directly and, as the case may be, by electronic means;
(b) where the provider is subject to a code of conduct, is a member of a trade association or professional body which provides
recourse to settlement dispute proceedings other than judicial proceedings, the details of such body and the manner how the information
on the characteristics and conditions relating to such proceedings may be obtained;
(c) where the provider is registered in a trade or other similar public register, the name of that register and the provider’s
registration number, or equivalent means of identification in that register;
(d) where the activity is subject to an authorisation scheme, the
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particulars of the relevant competent authority or the single point of contact; (e) where the provider exercises an activity
which is subject to VAT,
the identification number referred to in Article 22(1) of Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system
of value added tax: uniform basis of assessment;
(f) in the case of the regulated professions, any professional body or similar institution with which the provider is registered,
the professional title and the Member State in which that title has been granted;
(g) the general conditions and clauses, if any, used by the provider; (h) the existence of contractual clauses, if any, used
by the provider
concerning the law applicable to the contract and, or the competent courts;
law;
(i) the existence of an after-sales guarantee, if any, not imposed by
(j) the price of the service, where a price is pre-determined by the provider for a given type of service;
(k) the main features of the service, if not already apparent from the context;
(l) where he is subject to an insurance cover or other guarantee, the contact details of the insurer or guarantor and the territorial
coverage.
The information referred to in subparagraphs (a) to (l):
(i) shall be provided at the provider’s initiative; and
(ii) shall be easily accessible to the recipient at the place where the service is provided or the contract concluded; or
(iii) can be easily accessed by the recipient electronically by means of an address supplied by the provider; or
(iv) appears on all documentation supplied to the recipient by the provider which sets out a detailed description of the service
he provides.
(2) A provider shall make the following information available at the recipient’s request:
(a) the price of the service and if an exact price cannot be quoted, the method for calculating the price or a detailed estimate;
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(b) a reference to the professional rules applicable in the Member
State of establishment and how to access them;
(c) information on their multi-disciplinary activities and partnerships which are directly linked to the service in question
and on the measures taken to avoid conflicts of interest. Such information shall be included in any information document in which
providers give a detailed description of their services;
(d) information, if any, on the provider’s code of conduct, or membership of a trade association or professional body which provides
for recourse to a non-judicial means of dispute settlement. The provider shall specify how to access detailed information on the
characteristics of, and conditions for, the use of non-judicial means of dispute settlement.
(3) The provider shall ensure that the information supplied in accordance with paragraphs (1) and (2) is made available or communicated
in a clear and unambiguous manner, and in good time, before the conclusion of the contract and, where there is no written contract,
before the service is provided.
Passed by the House of Representatives at Sitting No. 177 of the 14th
December, 2009.
LOUIS GALEA
Speaker
PAULINE ABELA
Clerk to the House of Representatives
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