Cap. 370 Art. 17Powers exercisable.

(1) The competent authority shall act as the contact point in terms of and for the purposes of Article 79(1) of the MIFID, and it shall also exercise its powers and duties as provided for in the

UCITS Directive.

(1A) The competent authority shall cooperate with other local regulatory authorities or bodies which are also responsible for the supervision of credit institutions and financial institutions and shall exchange with such local regulatory authorities or bodies, without delay, any information which is essential or relevant to the exercise of their functions.

(2) The competent authority shall cooperate with other European regulatory authorities whenever necessary for the purpose of carrying out its duties and exercising its powers under the AIFM Directive, the BRRD, the CRD, the CRR, the MIFID, the MiFIR, the UCITS Directive, the IFD and the IFR. 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 the AIFM Directive, the BRRD, the CRD, the MiFID, the UCITS Directive and the IFD, 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, Investment Services Rules or Conduct of Business Rules issued thereunder:

Provided that the competent authority shall communicate information to other European regulatory authorities where this is relevant for monitoring and responding to the potential implications of the activities of an individual AIFM or AIFMs collectively, for the stability of systemically relevant investment services licence holders and the orderly functioning of markets on which AIFMs are active. ESMA and the ESRB shall be informed accordingly.

(2A) Without prejudice to the generality of sub-article (2), the competent authority shall, for the purposes of its duties pursuant to the IFR and the IFD as transposed in national law, exchange information about investment firms with European regulatory authorities without delay, including the following:

(a) information about the management and ownership structure of the investment firm;

(b) information about compliance with own funds requirements by the investment firm;

(c) information about compliance with the concentration risk requirements and liquidity requirements of the investment firm;

(d) information about the administrative and accounting procedures and internal control mechanisms of the investment firm

(e) any other relevant factors that may influence the risk posed by the investment firm:

Provided that for the purposes of this sub-article the term "investment firm" means an investment firm licensed under this Act.

(3) Upon receipt of a request from European regulatory authorities designated as contact points within the individual Member States or EEA States under Article 79(1) of the MIFID, the competent authority shall immediately take the necessary measures in order to gather the information required for the carrying out of its duties pursuant to the MIFID and the MiFIR. 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 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 or auditors under articles 17D and 18, 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 check that the conditions governing the taking-up of the business of licence holders, including undertakings contributing towards the business activity of UCITS are met and to facilitate the monitoring, on a non-consolidated or consolidated basis, of the conduct of that business, especially with regard to the financial resources requirements;

(b) to monitor the proper functioning of trading venues within the meaning of the MIFID and the MiFIR;

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

(d) in appeals under article 19;

(e) to investigate complaints received from consumers in terms of article 20 of the Malta Financial Services Authority Act; or

(f) in taking any decision in the implementation of the UCITS Directive and the MIFID and the MiFIR; or

(g) to monitor the prudential rules set out in the IFD and the IFR.

(8) Sub-article (7) of this article and article 26 shall not preclude the competent authority from exchanging information, in terms of the UCITS Directive, with European regulatory authorities, where that information is to be divulged to:

(a) authorities with public responsibility for the supervision of credit institutions, investment undertakings, insurance undertakings or other financial organisations, or authorities responsible for the supervision of financial markets;

(b) bodies involved in the liquidation or bankruptcy of UCITS or undertakings contributing towards their business activity, or bodies involved in similar procedures; or

(c) persons charged with carrying out statutory audits of the accounts of insurance undertakings, credit institutions, investment services licence holders or other financial institutions.

(9) Sub-article (7) of this article and article 26 shall not preclude the competent authority from exchanging information with European regulatory authorities, or other overseas regulatory authorities or other bodies and entities in pursuance of the requirements and terms of the BRRD, CRD, the CRR, the IFD and the IFR, as may be prescribed.

(10) 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 the AIFM Directive, the CRD, the CRR, the MiFID, the MiFIR, the UCITS Directive, the IFD and the IFR 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 this in as specific a manner as possible to the contact point in the other Member State or EEA State and to ESMA: Provided that where the said suspected acts have been or are suspected to have been committed by an AIFM in breach of the AIFM Directive, the competent authority shall also inform the home Member State and the host Member State of the AIFM, as the case may be, in as specific a manner as possible.

(11) 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.

(12) 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 the AIFM Directive, the CRD, the CRR, the MiFID, the MiFIR, the UCITS Directive, the IFD or the IFR 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.

(13) Without prejudice to the foregoing provisions of this article, the competent authority may exercise the following powers at the request of or for the purpose of assisting a European regulatory authority:

(a) the power to impose, revoke or vary conditions on the grant of a licence pursuant to the provisions of article 6(2);

(b) the power to cancel or suspend a licence under article 7(1);

(c) the powers of inquiry under article 13;

(d) the power to appoint inspectors under article 14;

(e) the powers of intervention under article 15;

(f) the powers of entry under article 16;

(g) 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.

(14) The competent authority shall have the powers conferred upon it by Article 101(8) of the UCITS Directive.

(15) The competent authority may also cooperate with European regulatory authorities with respect to facilitating the recovery of administrative penalties.