Cap. 403 Art. 28Power of the competent authority to protect the public interest.

(1) Without prejudice to the powers conferred to the competent authority under article 26, the competent authority, may, where it is satisfied that sufficient serious circumstances exist, proceed to take any one or more of the following measures:

(a) require the undertaking forthwith to take such steps as the competent authority may consider necessary to rectify or remedy the matter;

(b) appoint a person to advise the undertaking in the proper conduct of its business;

(c) restrict the free disposal of the assets of the authorised insurance undertaking, to safeguard the interests of the insured persons;

(d) appoint a person to take charge of the assets of the undertaking, or any portion of them, for the purposes of safeguarding the interests of insureds, policyholders and legitimate creditors of the undertaking;

(e) appoint a person to assume control of the business of the undertaking either to carry on that business or to carry out such other function or functions in respect of such business, or part thereof, including to take the necessary action for the undertaking to be dissolved and wound up, as the competent authority may direct;

(f) issue an order for the dissolution and winding up of the undertaking or, in the case of a third country insurance or reinsurance undertaking, for the winding up of its business in Malta;

(g) appoint a competent person to act as liquidator for the purpose of winding up the affairs of the undertaking;

(h) fix the remuneration to be paid by the undertaking to any person appointed under this article;

(i) do such other act or require the doing of such other thing as it may deem appropriate in the circumstances, and having proceeded in any one or more of the manners aforesaid, the competent authority may further proceed in any one or more of such manners, whether in addition thereto or in substitution therefor.

(2) Where a person is appointed by the competent authority -

(a) under sub-article (1)(b), it shall be the duty of the undertaking to act in accordance with the advice given by such person unless and until the competent authority, on representation made to it, directs otherwise;

(b) under sub-article (1)(d), the undertaking shall deliver to such person all the assets of which he is placed in charge, and all the powers, functions and duties of the undertaking in respect of those assets, whether exercisable by the undertaking in general meetings, or by the directors, or by any other person, including the legal and judicial representation of the undertaking, shall be exercisable by and vest in the person appointed under the said paragraph to the exclusion of any other person;

(c) under sub-article (1)(e), the undertaking shall submit its business to the control of such person and shall provide him with such facilities as he may require the undertaking to provide him to carry on that business or to carry out the functions assigned to him under the said paragraph; and all the powers, functions and duties of the undertaking, whether exercisable by the undertaking in general meeting, or by the directors, or by any other person, including for the purposes of the dissolution and winding up of the undertaking as well as the legal and judicial representation of the undertaking in all matters, shall be exercisable by and vest in him to the exclusion of any other person;

(d) under sub-article (1)(g) such person shall be the liquidator of the undertaking for all purposes of law to the exclusion of any other person: Provided that the competent person shall not take any decision for the purpose of the dissolution and winding up of the undertaking, unless the competent authority issues a directive to that effect in terms of article 31A of the Act, and any such directive may contain such instructions, requirements and conditions as the competent authority may consider necessary, including with regard to the mode of winding up.

(2A) Without prejudice to the powers of the competent authority in terms of sub-article (1), the competent authority may also submit an application to the court for the dissolution and winding up by the court of an undertaking, where it appears to the competent authority that an undertaking should be dissolved and wound up by the court for the reason set out in article 214(2)(b)(iii) of the Companies Act, and where the court accedes to the application, the relevant provisions of the Companies Act in relation to the dissolution and winding up by the court and any other applicable provisions of any other law shall apply.

(3) In the case of a third country insurance or reinsurance undertaking, the branches and offices in Malta of that undertaking shall, if the competent authority so directs and to the extent it so directs, be deemed to constitute a separate undertaking.

(4) The provisions of article 16(8) of the Malta Financial

Services Authority Act shall apply to any mutatis mutandis administrative or disciplinary sanction or measure, of whatever type, including reprimands or warnings, imposed or decided by the competent authority under this Act, and any regulations made thereunder or any Insurance Rules.

(5) The competent authority may require the undertaking concerned to pay all the expenses of, and incidental to, the publication or issue of public statements or notices pursuant to this article or such part thereof as it may deem appropriate; and any sum so due shall be recoverable by the competent authority in the same manner as an administrative penalty imposed under this Act.

(6) Any measure adopted in terms of sub-article (1) shall remain in force notwithstanding that an undertaking ceases to hold an authorisation licence for whatever reason, unless the competent authority otherwise directs.