Banking Act (Cap. 371), article 29AA

29AA. (1) Without prejudice to any other power of the competent authority under this Act or any other law, where the competent authority is the consolidating supervisor and has established that the co nditions set out in article 11B(4) are not met or have ceased to be met, the competent authority shall take the appropriate supervisory meas ures to ensure or restore, as the case may be, continuity and integrity of consolidated supervision and ensure compliance with the require ments laid down in this Act and any regulations made and Banking Rule s issued thereunder transposing the CRD , in any binding legal instruments issued under the CRD, and in the CRR, on a consolidated basis. In the case of a mixed f inancial holding company, the supervisory measures applied by the competent authority as the consolidating supervisor shall, i n particular, take into accoun t the effects on the financial conglome rate. The supervisory measures referred to in this sub-article shall include: (a) withdrawing the approval granted to a financial holding company or mixed financial holding company in terms of article 11B; (b) suspending the exercise of voting rights attached to the shares of the subsidiary institutions held by the financial holding company or mixed financial holding 70 CAP. 371.] BANKING company; (c) issuing administrative m easures or administrative penalties, in terms of this Act and any regulations made or Banking Rules issued thereunder, against the financial holding company, the mixed financial holding company or the directors and managers, subject to the provisions of national law transposing Articles 65 to 72 of the CRD; (d) issuing instructions or directions to the financial holding company or mixed f inancial holding company, to transfer to its shareholders the participations in its subsidiary institutions; (e) issuing a directive to the financial holding company or mixed financial holding company in terms of Article 4B; (f) designating on a temporary basis another financial holding company, mixed fin ancial holding company or institution within the group as responsible for ensuring compliance with the requirements laid down in this Act and, or any regulations made and, or Banking Rules issued thereunder transposing the CRD, in the CRD and, or in the CRR on a consolidated basis; (g) restricting or prohibiting distributions or interest payments to shareholders; (h) requiring financial h olding companies or mixed financial holding companies to divest from, or reduce, holdings in institutions or other financial sector entities; (i) requiring financial h olding companies or mixed financial holding companies to submit a plan on return, without delay, to compliance; (j) restraining any person within financial holding companies or mixed financi al holding companies and, or financial holding companies or mixed financial holding companies from taking, or continuing to take, any action as a result of which the conditions set out in article 11B(4) are not met o r have ceased to be met; (k) requiring any person within financial holding companies or mixed financi al holding companies and, or financial holding companies or mixed financial holding companies to take such steps as may be necessary to restore the position existing immediately before any action, as a result of which the conditions set out in article 11B(4) are not met or have ceased to be met, was taken; (l) restraining any person within financial holding companies or mixed financi al holding companies and, or financial holding companies or mixed financial holding companies from exercising any rights which a lawful action, as a result of which the conditions set BANKING [CAP. 371. 71 out in article 11B(4) are not met or have ceased to be met, would have conferred upon them, including the right to receive any payment or to exercise any voting rights attaching to the shares acquired; (m) any measure under ar ticle 29 of this Act: Provided that in exercising any of its powers under article 29, the provisions of the said article shall apply mutatis mutandis , and provided further that any reference to ''the credit institution '' shall be deemed to be reference to ''the financial holding company" and, or "the mixed financial holding company", as applicable. (2) Where the competent authority intends to withdraw an approval in accordance with sub-a rticle (1)(a), it shall serve written notice of its intention on the financial holding company or mix ed financial holding company; such notice shall specify the ground s upon which the competent authority int ends to take such action and s hall specify a period, being a period not less than forty-eight hour s and not more than thirty calendar days, in which the financial holding company or mixed financial holding company shall be entitled to make representations to the competent authority as to why such actio n should not be taken. Unless the competent authority decides tha t the matter is urgent, it shall not withdraw an approval before the expiry of such period. (3) For the purpose of taking decisions on the supervisory measures referred to in sub-article (1), where the financial ho lding company or the mixed financial holding company is established i n a Member State other than Malta and the competent authority is th e consolidating supervisor, the competent authority shall work to gether with the overseas regulatory authority in the Member State wher e the financial holding company or the mixed financial holding compan y is established, as th e case may be, in full consultation. (4) Where the competent authority is not the consolidating supervisor but the financial holding company or the mixed finan cial holding company is established in Malta, the competent authorit y shall, for the purposes of taking decisions on the supervisory measures referred to in Article 21a(6) of the CRD , work together with the overseas regulatory authority ac ting as the consolidating super visor in full consultation. (5) Where the competent authority is the consolidating supervisor and where the financial holding company or the mixed financial holding company is not established in Malta, the competent authority shall prepare an assess ment on the matters referred t o in sub- article (1), and shall forward that assessment to the overseas regulatory authority in the Member State whe re the financial holding compa ny or the mixed financial holdi ng company is established. 72 CAP. 371.] BANKING (6) The competent authority, whether acting as the consolidating supervisor or whether it is in receipt of an asse ssment referred to in Article 21a(8) of the CRD from the overseas regulatory authority acting as the consolidating supervisor, shall do ever ything within its powers to reach a joint decision on the measures ref erred to in sub-article (1) of this article and, or in Article 21a(6) of the CRD, with the overseas regulatory authority in the Member State wher e the financial holding company or the mixed financial holding compan y is established or with the overseas regulatory authority acting as the consolidating supervisor, as the case may be, within two months of receipt of that assessment: Provided that the joint decision shall be duly documented and reasoned and where the competent authority is the consolida ting supervisor, it shall communicate the joint decision to the fina ncial holding company or the mixed financial holding company. (7) In the event of a disagreement between the competent authority and the overseas regulatory authority acting as the consolidating supervisor or with the overseas regulatory author ity in the Member State where the financial holding company or the mix ed financial holding company is established, as the case may be, t he competent authority shall refrain from taking the joint decisio n referred to in sub-article (6) an d shall refer the matter to th e EBA in accordance with Article 19 of Regulation (EU) No. 1093/2010 . In such cases, the competent authority shall adopt a joint decisio n with the overseas regulatory author ity acting as the consolidating supervisor or with the overseas regulatory authority in the Mem ber State where the financial holding company or the mixed financia l holding company is established, as the case may be, in conformi ty with the decision of the EBA: Provided that the matter shall not be referred to the EBA after the end of the two-month pe riod referred to in sub-articl e (6) or after a joint decision has been reached. (8) In the case of mixed financial holding companies, where the coordinator appointed in terms of Article 10 of Directive 2002/87/EC is neither the competent authority, nor the overseas regulatory authority acting as the consolidating supervisor, nor the overs eas regulatory authority in the Membe r State where the mixed financ ial holding company is established, the agreement of the said coord inator shall be required for the purposes of the decisions or joint de cisions referred to in sub-article (1) of this article and, or in Artic le 21a(6) of the CRD, as applicable. Where the agreement of the coordinator is required, the compete nt authority shall refer any disagreements to the relevant Europea n Supervisory Authority, namely, to the EBA or to the European Supervisory Authority (European Insurance and Occupational BANKING [CAP. 371. 73 Pensions Authority) (EIOPA), established by Regulation (EU) No. 1094/2010 , which shall take its decision within one month of receipt of the referral. Any decision tak en in accordance with this sub -article shall be without prejudice to the obligations under Directive 2002/87/ EC or Directive 2009/138/EC . Language of regulations. Added by: XIII. 2004.84. Amended by: XX. 2007.117; LXXI.2021.53.