Banking Act (Cap. 371), article 25

25. (1) On the basis of Malta’s international commitments, the competent authority may share its supervisory duties with overs eas regulatory authorities in the case of a credit institution lice nsed in terms of this Act and operating in the country of such overseas regulatory authority or a branch established in Malta and havin g its head office in another Member State. (2) The competent authority may further, on the basis of Malta’s international commitments, exchange information with overseas regulatory authorities in other Member States or transmit infor mation to the ESRB , the EBA or the European Securiti es and Markets Authority established by Regulation (EU) No. 1095/2010 , in accordance with this Act and any regulations made and Banking Rules issued thereunder transposing the CRD, with any binding legal instruments issued under the CRD , with the CRR , with Regulation (EU) 2019/2033 , with Article 15 of Regulation (EU) No. 1092/2010 , with Articles 31, 35 and 36 of Regulation (EU) No. 1093/2010 , with Articles 31 and 36 of Regulation (EU) No. 1095/2010, with Directive (EU) 2019/2034 and with other Directives applicable to credit institutions. Such i nformation shall be subject to professional secrecy provided for under thi s Act and any regulations issued thereunder. (2A) Notwithstanding article 17(1) of the Malta Financial Services Authority Act and articles 19(6), 34(2), 34(4) and 34(7), the competent authority may also, subject to the conditions set out in sub- articles (2B) and (4A), transmit o r share certain information w ith the following: (a) the International Monetary Fund and the World Bank, for the purposes of assessments for the Financial Sector Assessment Program; (b) the Bank for International Settlements, for the purposes of quantitativ e impact studies; (c) the Financial Stability Board, for the purposes of its surveillance function: Provided that where the discl osure of information in terms 58 CAP. 371.] BANKING of this sub-article involves the processing of personal data, a ny processing of personal data w ill be in accordance with the requirements laid down in the GDPR . (2B) The competent authority may only share confidential information with the international bodies referred to in sub-ar ticle (2A) following an explicit request and where at least the follo wing conditions are met: (a) the request is duly justified in light of the specific tasks performed by the req uesting body in accordance with its statutory mandate; ( b ) t h e r e q u e s t i s s u f f i c i e n t l y p r e c i s e a s t o t h e n a t u r e , scope and format of the re quired information, and the means of its disclosure or transmission; (c) the requested information is strictly necessary for the performance of the specific tasks of the requesting body and does not go beyond the statutory tasks conferred on the requesting body; (d) the information is transmitted or disclosed exclusively to the persons directly involved in the performance of the specific task; (e) the persons having access to the information are subject to professional secr ecy requirements at least equivalent to those referred to in article 34(4). Cap. 330. (3) Notwithstanding article 17(1) of the Malta Financial Services Authority Act and articles 19(6) and 34(2), the competent authority may also conclude cooperation ag reements, providing for exchang es of information, with third country overseas regulatory authorit ies or with authorities or bodies of third countries in accordance with sub-articles (7) and (8), only if the information disclosed is subject to a guarantee that professional secrecy requirements at least equivalent to those referred to i n article 34(4) are complied w ith: Provided that such exchange of information shall be for the purpose of performing the supervisory tasks of the authorities or bodies mentioned in this sub-article: Provided further that where th e information originates in another Member State, it shall only be disclosed with the expre ss agreement of the overseas author ity which has disclosed it, and where appropriate, solely for the purposes for which the overseas aut hority gave its agreement. (4) The competent authority may disclose information under the provisions of sub-article (2) only to the extent that the a uthorities receiving the information restrict its use for supervisory and regulatory purposes or for such other purposes as may specifica lly be agreed upon with the competent authority. (4A) Where a request is made by any of the entities referred to in sub-article (2A), the competent authority may only transmit aggregate or anonymised information and may only share other information at the premises of the competent authority. BANKING [CAP. 371. 59 (5) The competent authority may further, on the basis of international agreements, or upon reciprocity agreements, autho rise overseas regulatory authorities to carry out themselves, or thr ough the intermediation of competent persons they appoint, on-site inspections for supervisory and regulatory purposes in branches or subsidiaries of credit institutions having their head office in the country of the overseas regulatory authority making the inspect ion: S.L. 371.11 Provided that on-the-spot checking and inspection of branches established in Malta of credit institutions authorised in another Member State, shall be carried out in accordance with t he European Passport Rights for C redit Institutions Regulations . (6) Nothing in this Act or in any other law shall prevent the competent authority from transmitting information to the follow ing for the purposes of their tasks - (a) the Central Bank, ESCB central banks and other bodies with a similar function in their capacity as monetary authorities when the information is relevant for the exercise of their respective statutory tasks, including the conduct of monetary policy and related liquidity provision, oversight of payments, clearing and settlement systems and the safeguarding of stability of the financial system; (b) contractual or institutional protection schemes as referred to in Article 113(7) of the CRR; (c) where appropriate, other public authorities responsible for overseeing payment systems; (d)t h e ESRB , the European Insurance and Occupational Pensions Authority established by Regulation (EU) No. 1094/2010 and the European Securities and Markets Authority established by Regulation (EU) No. 1095/2010 , where that information is relevant for the exercise of their tasks u nder Regulations (EU) No. 1092/2010, (EU) No. 1094/2010 or (EU) No. 1095/ 2010: Provided that the competen t authority shall take the appropriate measures to remove obstacles preventing it from transmitting information in accordance with this sub-article: Provided further that inform ation received in accordance with this sub-article shall be subject to professional secrecy requirements at least equivalent to those referred to in articl e 34(4): Provided further that in an em ergency situation, including a situation as described in Article 18 of Regulation (EU) No. 1093/ 2010 or a situation of adverse dev elopments in markets arises, which potentially jeopardises the market liquidity and the stab ility of the financial system, the competent authority shall communic ate without delay information to the ESCB central banks where that information is relevant for the exercise of their statutory tasks, including the conduct of monetary policy and related liquidity provision, the oversight of payments, clearing and settlement systems, and to the ESRB where such informat ion is relevant for 60 CAP. 371.] BANKING the exercise of it s statutory tasks. Cap. 330. (7) The provisions of article 17(1) of the Malta Financial Services Authority Act and of article 34(2), (4) and (7) shall not preclude the exchange of information between the competent authority and other authorities in Malta; between the competent authority and overseas regulatory authorities in other Member States; or between the competent authority and the following, i n the discharge of their supervisory functions - (a) authorities entrusted with the public duty of supervising other financial sector entities and the authorities responsi ble for the supervision of financial markets; (b) authorities or bodies charged with responsibility for maintaining the stability of the financial system in Member States through the use of macro-prudential rules; (c) reorganisation bodies o r authorities aiming at protecting the stability of the financial system; (d) contractual or institutional protection schemes as referred to in Article 113(7) of the CRR; (e) bodies involved in the liquidation and bankruptcy of institutions and in other similar procedures; (f) persons responsible for carry ing out statutory audits of the accounts of institutions, insurance undertakings and financial institutions; (g) authorities responsible for supervising the obliged entities listed in points (1) and (2) of Article 2(1) of Directive (EU) 2015/849 for compliance with that Directive, and financial i ntelligence units in other Member States; (h) authorities or bodies responsible for the application of rules on structural separa tion within a banking group; Provided that the provisions o f article 34(4) and (7) shall not preclude the disclosure to bodies which administer deposit- guarantee schemes and investor compensation schemes of information necessary for the exercise of their functions: Provided further that the info rmation received shall in any event be subject to professiona l secrecy requirements at least equivalent to those referred to in article 34(4). Cap. 330. (8) Notwithstanding article 17(1) of the Malta Financial Services Authority Act , the provisions of sub-articles (2) and (3) and of articles 19(6), 34(2), 34(4), 34(5) and 34(7), the competent authority s hall exchange information with the authorities responsible for overseeing - (a) the bodies involved in the liquidation and bankruptcy of institutions and in o ther similar procedures; (b) contractual or institutional protection schemes as referred to in Article 113(7) of the CRR; BANKING [CAP. 371. 61 (c) persons charged with carrying out statutory audits of the accounts of institutions, insurance undertakings and financial institutions: Provided that in the cases refer red to in this sub-article, the competent authority shall require fulfilment of at least the following conditions: (i) that the information is exchanged for the purpose of performing the tasks referred to in this sub-article; (ii) that the information received is subject to professional secrecy requirements at least equivalent to those referred to in article 34(4); (iii) where the information originates in another Member State, that it is not disclosed without the express agreement of the overseas regulatory authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gav e their agreement: Provided further that wher e the authorities or bodies referred to in this sub-article p erform their task of detection or investigation through the assistance of persons appointed for t hat purpose in view of their specifi c competence and not employed i n the public sector, the competent authority may exchange information with the authorities or bodies responsible under the law for the detection and investiga tion of breaches of company law, to such persons, and shall require the fulfilment of at least the following conditions: (i) that the information is exchanged for the purpose of detecting and investigating breaches of company law; (ii) that the information received is subject to professional secrecy requirements at least equivalent to those referr ed to in article 34(4); (iii) where the information originates in another Member State, that it is not disclosed without the express agreement of the overseas regulatory authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement. Cap. 330.(9) Notwithstanding article 17(1) of the Malta Financial Services Authority Act and the provisions of articles 19(6), 34(4) and 34(7), the competent au thority may authorise the disclosure of certain information to other government departments of other Member States’ central government administrations responsible for legislation on the supervision of institutions, financial insti tutions and insurance undertakings and to inspectors acting on behalf o f those departments: Provided that such disclosur es may be made only where necessary for reasons of prudential supervision and prevention and resolution of failing credit institutions. Without prejudice to sub- article (10), persons having acces s to the information shall be 62 CAP. 371.] BANKING subject to profession al secrecy requirements at least equivalen t to those referred to in article 34(4): Provided further that in an emergency situation, including a situation as described in Article 18 of Regulation (EU) No. 1093/ 2010 or a situation of adverse dev elopments in markets arises, which potentially jeopardises the market liquidity and the stab ility of the financial system, the competent authority may disclose information which is relevant to the departments referred to in this sub-article in all Memb er States concerned. (9A) The competent authority shall communicate to the EBA the names of the authorities or bodies that may receive information as described in sub-articles (8) and (9). (9B) In order to implement sub-article (9), the authorities or b odies referred to in sub-article (8), shall communicate to the compet ent authority which disclosed the information, the names and responsibilities of the persons to whom it is to be sent. Cap. 330. (10) Notwithstanding article 17(1) of the Malta Financial Services Authority Act , and the provisions of articles 19(6), 34(4) and 34(7), the competent authority may disclose certain information relati ng to the prudential supervision of cr edit institutions to parliament ary enquiry committees, courts of auditors and other entities in ch arge of enquiries in Malta, under the following conditions - (a) that the entities have a precise mandate under Maltese l a w t o i n v e s t i g a t e o r s c r u t i n i s e t h e a c t i o n s o f t h e competent authority or for laws on the supervision of credit institutions; (b) that the information is strictly necessary for fulfilling the mandate referred to in paragraph ( a); (c) the persons with access to the information are subject to professional secrecy requirements at least equivalent to those referred to in article 34(4); (d) where the information originates in another Member State, such information shall not be disclosed without the express agreement of the overseas regulatory authorities which have disclosed it and, solely for the purposes for which those overseas regulatory authorities gave their agreement: Provided that where the disclosure of information relating to prudential supervision involves the processing of personal d ata, any processing by the entities referred to in this sub-article shall comply with any applicable data protection legislation. (11) The competent authority shal l not disclose in terms of sub- articles (9) and (10), any information received under Article 5 2, Article 53(2) and Article 56 of the CRD , except with the express consent of the overseas regulator y authority of the Member Stat e in which such an on-the-spot check or inspection was carried out o r of the overseas regulatory authority of the Member State which disclosed such information. Cap. 330. (12) Notwithstanding article 17(1) of the Malta Financial Services BANKING [CAP. 371. 63 Authority Act and of articles 19(6) and 34(2), the competent authority may communicate information referred to in sub-articles (2) and (3) and in articles 34(4), 34(5) and 34(7), to a clearing house or other similar body recognised under national law for the provision of clearing or settlement services o f the relevant national market , if it considers that it is necessary to communicate such information in order to ensure the pr oper functioning of these bodies in relat ion to defaults or potential defau lts by market participants: Provided that the informati on received under this article shall be subject to the conditions of professional secrecy at l east equivalent to those referr ed to in article 34(4): Provided further that information received by the competent authority under Article 53(2) of the CRD may not be disclosed by the competent authority without the express consent of the overseas regulatory authority in another Member State and the authority in another Member State responsible for the supervision of investm ent firms which had disclosed it. (13) There shall be meetings held between a credit institution, its appointed auditors and the competent authority on a trilate ral or bilateral basis as circumstances may warrant. These meetings ma y be called by any of the parties concerned but shall always be chaired by the competent authority. Co-operation and sharing of information with respect to supervision on a consolidated basis. Added by: XX. 2007.110. Amended by: XVII. 2009.28; II. 2011.27; XX. 2013.64. Substituted by: X. 2015.37. S.L. 371.15.