Investment Services Act (Cap. 370), article 26

26. (1) Other than for the proper discharge of their duties or functions under this Act or any other Act, or as may be otherwi se provided in any other law, information obtained by the competen t authority or by its officers, employees or agents, as well as b y inspectors, auditors and experts engaged by the competent authority for the purposes of, or pursuant to, any of the provi sions of this Act, or of any regulations, Investment Services Rules o r Conduct of Business Rules made thereunder, or in the discharge of their duties or any functions, shall be treated as confidential and protected by the duty of professional secrecy, and shall not be disclosed to any other person, except in t he following cases: (a) where the disclosure is required for the detection, prevention or prosecution of criminal offences under the criminal provisions of this Act or any other Act; (b) where the information is disclosed by the competent authority with a view to the institution of, or otherwise for the purposes of any proceedings before any court or tribunal; (c) where the information is disclosed in civil or commercial proceedings in relation to the bankruptcy or dissolution and consequential winding up by the Court of a licence holder, provided such information does not concern third parties and is necessary for the carrying out of the proceedings, or is disclosed to an overseas body responsible for the liquidation and bankruptcy of a person holding a licence or an equivalent authorisation from a European regulatory authority or an overseas regulatory authority; (d) where a summary or collection of the information is prepared or supplied in such a way as not to enable the identity of any persons, including UCITS, their management companies and custodians to whom the information relates to be ascertained; 68 CAP. 370.] INVESTMENT SERVICES (e) where the information is disclosed to an auditor where such disclosure would assist him in the exercise of his functions under article 18; Cap. 345. (f) where the information is provided to the Central Bank of Malta in the exercise of its functions in terms of law; (g) where the information is provided to such other local or European or overseas regulatory, judicial or enforcement author ities in the pursuance of serious concerns of a regulatory or criminal nature; and (h) where the competent authority publishes the outcome of stress tests in accordan ce with Article 100 of the CRD or Article 32 of Regulation (EU) No 1093/2010 and, or transmits the results to the EBA: Provided that this article shall not prevent the competent authority from exchanging or tra nsmitting confidential informat ion in accordance with the AIFM Directive , the BRRD , the CRD , the CRR, the MIFID , the MiFIR , the UCITS Directive , the IFD and the IFR, and with other Direc tives of the European Union applicable to licence holders, credit institutions, pension funds, insurance and reinsurance intermediaries, insurance undertakings, regulated markets or market operators, including the exchange or transmis sion of confidential informati on to ESMA or the ESRB: Provided further that this article shall not prevent the competent authority from using such information for other purposes where the body or person communicating information to the competent author ity consents thereto. (1A) Notwithstanding the provisions of sub-article (1), information obtained by the competent authority or by its offic ers, employees or agents, as well as by inspectors, auditors and exp erts, who are or were engaged by the co mpetent authority, in the cour se of their duties and, or pursuant to the IFR or the IFD as transposed in national law, shall be treated as confidential and protected by the duty of professional secrecy, and sha ll not be disclosed to any othe r person, except in the following cases: (a) where it is necessary for the proper discharge of their duties or functions under this Act or any other Act, or as may be otherwise prov ided in any other law; (b) where the information is disclosed in summary or aggregate form, provided that individual investment firms or persons cannot be identified, without prejudice to cases cov ered by criminal law; (c) in civil or commercial proceedings, where the investment firm to which the information relates has been declared bankrupt or is being compulsorily wound up, such information does not concern third parties and the disclosure of such information is necessary for carrying out those proceedings; (d) in proceedings initiat ed under article 19; INVESTMENT SERVICES [CAP. 370. 69 (e) to monitor the prudential rules set out in the IFD a s transposed in national law and in the IFR; (f) to impose penalties and other administrative measures; (g) in an appeal against a decision of the competent authority, including court proceedings; (h) to the Commission of the European Union when the information is neces sary for the exercise of the powers of the Commission of the European Union, or (i) to the EBA, ESMA, the ESRB, central banks of the Member States or EEA State s, the European System of Central Banks and the Europ ean Central Bank, in their capacity as monetary authorities, and, where appropriate, public authorities responsible for overseeing payment and settlement systems, where that information is necessary for the performance of their tasks. (1B) Natural and legal persons and other bodies, other than tho se mentioned in sub-article (1A), t hat receive information pursuan t to the IFR or the IFD as transposed in national law shall only use that information for the purposes expr essly provided by the competen t authority or by law. (2) Without prejudice to the cases covered by criminal law, any confidential information received by bodies or natural or legal persons within the meaning of Article 81 of the MiFID , Article 15 of the IFD , and of Article 102 of the UCITS Directive shall only be used in the performance of their duties and for the exercise of their functions. In addition, such information is to be used specific ally for the purpose for which such information was provided to them and, or in the context of administrative or judicial proceeding s specifically related to the ex ercise of those functions: Provided that where a body or person communicating information to the competent authority consents thereto, such information may be used by the competent authority for other purposes. (3) The provisions of this article and of articles 17 and 17F of this Act shall not preclude the competent authority from transmitting to the Central Bank of Malta, the European System of Central Banks and the European C entral Bank, in their capacity as monetary authorities, and, where appropriate, to recognised cle aring houses or other similar body performing clearing or settlement services, to bodies which admin ister compensation schemes, and to other public authorities responsible for overseeing payment and settlement systems, confidential information intended for the performance of their functions. Likewise, the competent authori ty shall be entitled to the receipt of such information as it may require for the purpose of performing its functions under the MIFID and the MiFIR : Provided that where the exchange of information is carried out in terms of the UCITS Directive , the express consent of the European 70 CAP. 370.] INVESTMENT SERVICES regulatory authority shall be obtained. Cap. 373. (4) Where an officer or an employee of a licence holder has reas on to believe that a transaction or a proposed transaction could i nvolve money laundering or the funding of terrorism, he shall act in compliance with the reporting and other obligations set out in the regulations made under article 12 of the Prevention of Money Laundering Act and any procedures and gui dance issued thereunder, and such disclosure shall not c onstitute a breach of confidenti ality. MISCELLANEOUS Exclusion of liability. Amended by: XXV .1995.432; XX. 2007.79; XXXI. 2017.64.