Cap. 345 Art. 37Co-operation with European regulatory authorities.

(1) The competent authority shall act as the contact point in terms of and for the purposes of sub-article (1) of Article 79 of

MiFID.

(2) The competent authority shall cooperate with other

European regulatory authorities whenever necessary for the purpose of carrying out its duties under MiFID and, or MiFIR. It shall render the necessary assistance to other European regulatory authorities, in particular by exchanging information and cooperating in any investigatory or supervisory function. In terms of MiFID and, or MiFIR, the competent authority may use its powers for the purposes of cooperation even in cases where the conduct under investigation does not constitute an infringement of any provisions of this Act, regulations or Financial Market Rules issued thereunder: Provided that the competent authority may, at its own discretion, also cooperate with other European regulatory authorities with respect to facilitating the recovery of fines.

(3) Upon receipt of a request from European regulatory authorities designated as contact points within the individual Member States or EEA States under sub-article (1) of Article 79 of MiFID, the competent authority shall immediately take the necessary measures in order to gather the information required for the carrying out of their duties pursuant to MiFIR or MiFID. If the competent authority is not able to supply the required information immediately, it shall notify the requesting European regulatory authority of the reasons.

(4) At the time of communicating information to the European regulatory authorities, whether designated as contact points or not, the competent authority may stipulate that the information must not be disclosed without its express agreement, in which case such information may be exchanged solely for the purposes for which the competent authority had given its agreement.

(5) Where a European regulatory authority exchanging information with the competent authority stipulates at the time of communication of the information that such information must not be disclosed without its express agreement, such information may be used by the competent authority solely for the purposes for which the European regulatory authority would have given its agreement.

(6) Information received by the competent authority from contact points in the other Member States or EEA States may be transmitted to other bodies or natural or legal persons, provided that:

(a) the express agreement of the contact points which disclosed the information is obtained; and

(b) the information is used solely for the purposes for which the contact points gave their agreement:

Provided further that in duly justified circumstances the competent authority can transmit information to other bodies or natural or legal persons without satisfying the conditions in paragraphs (a) and (b), in which case the competent authority shall immediately inform the contact point that sent the information.

(7) Where the competent authority receives confidential information from contact points in the other Member States or EEA States or from overseas regulatory authorities under article 37C, or when other bodies or natural or legal persons receive confidential information from the competent authority, they may only use such confidential information in the course of their duties, in particular:

(a) to monitor the proper functioning of trading venues within the meaning of MiFID;

(b) to impose penalties or adopt other administrative measures and to consider representations received in their regard;

(c) in appeals under this Act.

(8) Without prejudice to the powers of the competent authority under this Act or any other law, where the competent authority has good reason to suspect that acts contrary to the provisions of MiFID or MiFIR are being or have been carried out on the territory of another Member State or EEA State by entities not subject to its supervision, it shall notify the European regulatory authority of the other Member State or EEA State and ESMA in as specific a manner as possible.

(9) Where the information in the possession of the competent authority had originated from a European regulatory authority or an overseas regulatory authority, it may not be disclosed to a European regulatory authority or to any other third party without the express agreement of the European regulatory authority or the overseas regulatory authority which had transmitted it and, where appropriate, solely for the purposes for which that authority had given its agreement.

(10) Where a European regulatory authority suspects that acts carried out by entities not subject to its supervision and which are contrary to the provisions of MiFID or MiFIR are being or have been carried out in Malta and notifies the competent authority to this effect, the competent authority shall take appropriate action. The competent authority shall inform the notifying European regulatory authority and ESMA of the outcome of any such action and, to the extent possible, of significant interim developments: Provided that any such action taken by the competent authority shall be without prejudice to the powers and functions of the European regulatory authority that has forwarded the information.

(11) The competent authority may exercise the following powers at the request of or for the purposes of assisting a European regulatory authority:

(a) the powers of inquiry under article 32;

(b) the power to appoint inspectors under articles 33 and 36;

(c) the powers to issue directives under article 39K;

(d) the powers of entry under article 34;

(e) the power to communicate to the European regulatory authority information which is in the possession of the competent authority, whether or not as a result of the exercise of any of the above powers.

(12) In relation to emission allowances, the competent authority shall cooperate with public bodies competent for the oversight of spot and auction markets and the European regulatory authorities, registry administrators and other public bodies charged with the supervision of compliance under Directive 2003/87/EC in order to ensure that they can acquire a consolidated overview of emission allowances markets.

(13) In relation to agricultural commodity derivatives, the competent authority shall report to and cooperate with public bodies competent for the oversight, administration and regulation of physical agricultural markets under Regulation (EU) No. 1308/ 2013.

(14) The competent authority shall consult with the European regulatory authority of the Member State or EEA State responsible for the supervision of credit institutions or insurance undertakings prior to granting an authorisation to a market operator which is:

(a) a subsidiary of a credit institution or insurance undertaking authorised in the Union; or

(b) a subsidiary of the parent undertaking of a credit institution or insurance undertaking authorised in the Union; or

(c) controlled by the same person, whether natural or legal, who controls a credit institution or insurance undertaking authorised in the Union.

(15) The competent authority and the European regulatory authorities referred to in sub-article (14) shall in particular consult each other when assessing the suitability of the shareholders or members and the reputation and experience of persons who effectively direct the business involved in the management of another entity of the same group. They shall exchange all information regarding the suitability of shareholders or members and the reputation and experience of persons who effectively direct the business that is of relevance to the other European regulatory authorities involved, for the granting of an authorisation as well as for the ongoing assessment of compliance with operating conditions.

(16) Where Malta is the host Member State of a regulated market and the competent authority has clear and demonstrable grounds for believing that such regulated market infringes the obligations arising from the provisions adopted pursuant to MiFID, it shall refer those findings to the European regulatory authority of the home Member State of the regulated market.

(17) Where, despite the measures taken by the European regulatory authority of the home Member State or because such measures prove inadequate, that regulated market persists in acting in a manner that is clearly prejudicial to the interests of Maltese investors or the orderly functioning of markets, the competent authority shall, after informing the European regulatory authority of the home Member State, take all the appropriate measures needed in order to protect investors and the proper functioning of the markets, which shall include the possibility of preventing that regulated market from making their arrangements available to remote members or participants established in Malta. The competent authority may refer the matter to ESMA which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No. 1095/2010.

(18) Any measure adopted pursuant to sub-article (16)

involving sanctions or restrictions on the activities of a regulated market shall be properly justified and communicated to the regulated market concerned.