Malta Financial Services Authority Act (Cap. 330), article 15

15. Without prejudice to any provisions of other laws, the Minister may, acting on the advice of the Authority, make regulations to establish, co-ordinate, amalgamate and otherwise regulate compensation schemes or sub-schemes or other similar arrangements in the financial services sector: (a) for the provision of compensation where licence holders, or categories thereof, are unable to satisfy their obligations towards depositors, investors, policy- holders or other claimants in respect of any liability incurred by them in connec tion with the carrying out of any activity in regard to w hich they are licensed or otherwise authorized, and (b) for the provisions of compensation arising out of or in connection with any other liability as may be prescribed, and to regulate the management and the financing of any such schemes or arrangements for compensation and the contributions and levies to be paid thereto, and such regulations may make different provision for different cla sses of licence holders and claimants. Powers of the Authority. Substituted by: XIII.1994.20; XVII. 2002.106. Amended by: IV . 2003.11; XII. 2006.57; XX. 2007.5; L.N. 424 of 2007; III. 2009.9; XIX. 2010.11; X. 2011.4; XX. 2013.21; XXII. 2014.14; XXVI.2019.82; V .2020.3; XLVI.2021.7. 16.(1)( a) Without prejudice to any other function and power under this or any other law, the Authority shall, in the exercise of its functions and powers under this Act, have the right to reasonable access and entry to any business premises and, or o ffices of a licence holder, access to any relevant documentation and, or records of a licence holder, or of any other person who appears to be in possession of relevant documentation and, or records, including access to any telephonic or other records and access to any other information relating or pertaining to the activities licensed or authorised by the Authority or otherwise falling under its supervisory or regulatory functions. The Authority shall also have the right to issue orders for the freezing of funds and, or other assets including bank accounts in the name of the MALTA FINANCIAL SERVICES AUTHORITY [CAP. 330. 17 licence holder or any other third party or parties as may be indicated and for such time and under such conditions as the Authority may set out in writing. The order may also prohibit a licence holder from transferring, disposing or losing possession of any such funds or assets. These orders may also be issued at the request of a foreign enforcement or supervisory authority. (b) The directors and managers, by whatever name designated, or any other persons who are or have been in charge of the operations or activities falling under the supervisory or regulatory functions of the Authority shall assist and shall collaborate with the Authority in order to enable it to discharge its functions, and shall collate and transmit without any undue delay such information and documentation as the Authority may reasonably request from time to time. (c) The Authority may exercise the powers under this article notwithstanding articles 17A and 17B and any provision as may be cont ained in any other law. (2) The Authority may , for the better carrying out of the provisions of this Act or any other Act administered by it, fro m time to time: (a) issue and publish Rules regulating the procedures and duties of persons licensed or authorised by it, or falling under its regulatory or supervisory functions. Such Rules may: (i) lay down additional requirements and conditions in relation to activities of such persons, the conduct of their business, their relations with customers, the public and other parties, their responsibilities to the Authority , reporting requirements, financial resources, capital adequacy and related requirements, and any other matters as the Authority may consider appropriate; (ii) provide for the returns, statements and notices to b e m a d e o r g i v e n f o r a n y p u r p o s e s i n r e g a r d t o which the Authority exercises supervisory or regulatory functions under this Act or any other Act, and the form and contents thereof; and (iii) prescribe the information that such persons are to submit to the Authority: Provided that such Rules shall be binding on all licence holders and others as may be specified therein; (b) issue a directive in writing requiring a person to do or to refrain from doing any act, including such prohibitions, restrictions and conditions as may be specified in the directive; and any person to whom or to which the notice is given shall obey, comply with and otherwise give 18 CAP. 330.] MALTA FINANCIAL SERVICES AUTHORITY effect to any such directive within the time and in the manner stated in the directive; (c) appoint a qualified person o r otherwise require a person to appoint a qualified person, whenever it deems it necessary or expedient, to carry out such tasks under such terms and conditions as the Authority may direct. All fees and expenses to be charged by the qualified person in relation to, or incidental to such appointment, shall be paid by the person in relation to whom the qualified person is appointed, unless determined otherwise by the Authority. The Authority may issue Rules or guidelines laying down the procedures and requirements relating to such appointment; and such Rules may also lay down the powers, duties and obligations of the qualified person. (2A) ( a) Without prejudice to the powers conferred to the Authority under this Act or any other law, the Authority may appoint a skilled person to assist it in the fulfilment of any of its functions under this A ct or any other law. (b) Where a skilled person is appointed in terms of this sub-article, the following provisions shall apply: (i) any person appointed as a skilled person shall be a person who, in the opinion of the Executive Committee, possesses the expertise necessary to provide the assistance r equired by the Authority in terms of his appointment; (ii) the person in relation to whom the skilled person is appointed shall co-operate with the skilled person and provide any information and documentation, as may be required, by such skilled person in the fulfilment of his appointment; (iii) where such skilled person is appointed in relation to a particular person, the Authority may require such person to pay all fees and expenses charged by the skilled person; (iv) the Authority may require the skilled person, inter alia , to provide it with a report relating to the assistance provided to the Authority in terms of his appointment; and (v) a report drawn up by the skilled person in terms of sub-paragraph (iv) and endorsed by the Authority in writing, shall for all purposes have the same effect as a document drawn up by the Authority: Provided that where a skilled person is appointed to draw up an independent report, this provision shall not apply with respect to such independent report. (3) Without prejudice to any other powers that may be exercised by the Authority in terms of this Act or of any other law, wher e any MALTA FINANCIAL SERVICES AUTHORITY [CAP. 330. 19 person contravenes or fails to comply with any provision of thi s Act or any other Act administered by the Authority, with any regulatio ns or Rules issued thereunder, with any of the provisions of the Disclosure Regulation , with any of the provisions of Articles 5, 6 or 7 of the Taxonomy Regulation, with any of the conditions imposed in a li cence issued by the Authority or with any directives issued by the Au thority, the Authority may by notice in writing and without recourse to a court hearing impose on any such perso n an administrative penalty whi ch may not exceed one hundred and fifty thousand euro (€150,000) f or each infringement or failure to comply, as the case may be. Cap. 12. (4) Where a notice as referred to in sub-article (3) or as refer red to in any other Act administered by the Authority or in any regula tions or Rules issued thereunder, has not been appealed, or where such n otice has been appealed, within fifteen days of the determination by the Tribunal of such appeal, the admi nistrative penalty as containe d in the notice or as reduced or incr eased by the decision of the Tr ibunal shall be due to the Authority. Upon the service of a copy of th e notice or the decision, as the case may be, by means of a judicial act on the person indicated in the notice or decision, the said notice or decision shall constitute an executive title for all effects an d purposes of Title VII of Part I of Book Second of the Code of Organization and Civil Procedure . (5) The right of the Authority to obtain information from a person who holds or has held a lic ence or other authorization, or from any of the officials or emp loyees of such person, shall no t be restricted, obstructed or precluded in any manner. Any gagging or similar confidentiality obligation or other restrictive conditi on arising from the legal or contr actual relationship between such person and his officials or employees shall be, in so far as it is contrary to these provisions and impedes or restricts the right of the Authority to receive information required in the pursuance of i ts regulatory functions and duties arising under this or any other Act, null and void. (6) In furtherance of sub-article (5), the following provisions shall apply: (a) any person who holds or has f ormerly held a license or other authorization from the Authority, and the officials and employees thereof shall, upon a written request by the Authority, promptly provide the Authority with any information that it may require as provided in sub-article (5), and may not raise any contractual gagging restriction or similar prohibition or other confidentiality obligation arising or alleged to arise under contract law or otherwise refuse to comply with such a request of the Authority; (b) no action for breach of cont ract and no disciplinary measure may be taken, dir ectly or indirectly, by a person against any of its officials or employees for providing the Authority with any information required by the Authority as provided in sub-article (5); and any contractual or disciplinar y measure contrary to this provision shall be null and void; 20 CAP. 330.] MALTA FINANCIAL SERVICES AUTHORITY (c) for the purposes of this article: (i) "information" shall include explanations and other forms of assistance; and (ii) "employees" and "officials" shall include former employees and officials. (7) Notwithstanding any provision as may be contained in any other law for whose administration the Authority is responsible and where circumstances so warrant, the Authority may issue reprimands, warnings or take other similar disciplinary sanctio ns or measures of whatever type as may be deemed warranted by the circumstances and the nature and seriousness of the breach and wrongdoing. (8) Any administrative or disciplinary sanction or measure, of whatever type, including reprimands or warnings, imposed or decided by the Authority under any law for whose administration it is responsible, shall be published in such medium and in such manner and for such duration as may be deemed warranted by the circumstances and the nature a nd seriousness of the breach or wrongdoing. The Board of Governors may from time to time establish policies and guidelin es regarding the publication of administrative sanctions a nd disciplinary measures. Criminal sanctions and criminal investigations concerning breaches of provisions transposing MiFID. Added by: XXXI. 2017.7.