S.L. 545.34 Art. 42Certification in relation to third countries.

(1) (a) Where certification is requested by a transmission system owner or a transmission system operator which is controlled by a person or persons from a third country or third countries, the Regulator shall notify the Commission.

(b) The Regulatory shall also notify to the Commission without delay any circumstances that would result in a person or persons from a third country or third countries acquiring control of a transmission system or a transmission system operator.

(2) The transmission system operator shall notify to the regulatory authority any circumstances that would result in a person or persons from a third country or third countries acquiring control of the transmission system or the transmission system operator.

(3) The Regulatory shall adopt a draft decision on the certification of a transmission system operator within four (4) months of the date of notification by the transmission system operator. It shall refuse the certification if it has not been demonstrated:

(a) that the entity concerned complies with the requirements of regulation 39; and

(b) that granting certification will not put at risk the security of energy supply in Malta and the Union.

In considering the security of supply issue the Regulator shall take into account:

(i) the rights and obligations of the Union with respect to that third country arising under international law, including any agreement concluded with one or more third countries to which the Union is a party and which addresses the issues of security of energy supply;

(ii) the rights and obligations of Malta with respect to that third country arising under agreements concluded with it, insofar as they comply with Union law; and

(iii) other specific facts and circumstances of the case and the third country concerned.

(4) The Regulator shall notify the decision to the Commission without delay, together with all the relevant information with respect to that decision.

(5) The Regulator shall, before it adopts a decision on the certification under this regulation, request an opinion from the Commission on whether:

(a) the entity concerned complies with the requirements of regulation 39; and

(b) granting certification will not put at risk the security of energy supply to the Union.

(6) (a) The Regulator shall, within two (2) months of receiving an opinion of the European Commission with respect to its draft decision on the certification pursuant to this regulation or if the European Commission has not provided an opinion, within two (2) months from the expiry of the time frame for an opinion, adopt its final decision on the certification. In adopting its final decision, the Regulator shall take utmost account of the Commission’s opinion (if provided). The Regulator shall have the right to refuse certification where granting certification puts at risk Malta’s security of energy supply or the security of energy supply of another Member State.

(b) The Regulator’s final decision and the Commission’s opinion shall be published together. Where the final decision diverges from the Commission’s opinion, the Regulator shall provide and publish, together with that decision, the reasoning underlying such decision.

(7) Nothing in this regulation shall affect the right of the Regulator or the Minister to exercise, in accordance with Union law, national legal controls to protect legitimate public security interests.