Cap. 370 Art. 6Power of competent authority to refuse or grant licence.

(1) The competent authority may grant or refuse to grant a licence applied for under this Act:

Provided that the competent authority shall not -

(a) (i) grant an investment services licence unless it is satisfied that the applicant is a fit and proper person to provide the investment services concerned and that the applicant will comply with and observe regulations made under this Act as well as any Investment Services Rules and any Conduct of Business Rules issued by the competent authority made under this Act and which are applicable to him;

(ii) grant an investment services licence for the provision of any investment service other than acting as trustee or custodian in relation to a collective investment scheme:

(a) if the applicant is a body corporate, unless it has both its head office and registered office in Malta;

(b) if the applicant is a body corporate with no registered office under its national law, unless it has its head office in Malta; or

(c) if the applicant is not a body corporate unless the applicant’s head office is in Malta;

(iii) grant an investment services licence solely for the provision of an ancillary service;

(b) grant a collective investment scheme licence unless it is satisfied that the scheme will comply in all respects with any Investment Services Rules and regulations made under this Act and applicable to it and that its directors, and officers, or in the case of a trust, its trustees, are fit and proper persons to carry out the functions required of them in connection with the scheme;

(c) grant a licence to an applicant unless the relevant European regulatory authorities have been consulted in the instances referred to in article 17C;

(d) grant a licence to an applicant if there are objective and demonstrable grounds for believing that the management body of the applicant may pose a threat to its effective, sound and prudent management and to the adequate consideration of the interest of its clients and the integrity of the market;

(e) grant a licence to an applicant unless it is satisfied that the members of the management body of the applicant are of sufficiently good repute, possess sufficient knowledge, skills and experience and commit sufficient time to perform their functions with the applicant;

(f) grant a licence to an applicant which has an investment holding company or a mixed financial holding company as its parent undertaking unless it is satisfied that the members of the management body of such parent undertaking are of sufficiently good repute and possess sufficient knowledge, skills and experience to effectively perform their duties, taking into account the specific role of an investment holding company or mixed financial holding company.

(2) (a) In granting a licence the competent authority may subject it to such conditions as it may deem appropriate, and having granted a licence it may, from time to time, vary or revoke any condition so imposed or impose new conditions.

(b) For the better carrying out of the provisions of this Act, and to transpose, implement and give effect to the provisions and requirements of Directives, Regulations and other legislative matters of the European Union requiring transposition or implementation, the competent authority may, from time to time, issue and publish Investment Services Rules and Conduct of Business Rules which shall be binding on licence holders and others as may be specified therein. Such Investment Service Rules and Conduct of Business Rules may lay down additional requirements and conditions in relation to activities of licence holders, the conduct of their business, their relations with customers, the public and other parties, their responsibilities to the competent authority, reporting requirements, financial resources, capital adequacy and related requirements, and any other matters as the competent authority may consider appropriate.

(3) When considering whether to grant or refuse to grant a licence the competent authority shall, in particular, have regard to -

(a) the protection of investors and the general public;

(b) the protection of the reputation of Malta taking into account Malta’s international commitments;

(c) the promotion of competition and choice; and

(d) in the case of a collective investment scheme licence, the reputation and suitability of the applicant and all other parties connected with the scheme.

(4) (a) Every investment services licence shall specify the investment service which the holder thereof has been authorised to provide, and shall, where applicable, cover one or more of the ancillary services set out in the Third Schedule;

(b) Every collective investment scheme licence shall specify the class of collective investment scheme to which the licence relates.

(5) Without prejudice to the generality of sub-article (2), the conditions to which the competent authority shall subject a licence may be made applicable, or be prescribed to be applicable, to -

(a) all investment services licences or all collective investment scheme licences, as the case may be;

(b) certain types of licences;

(c) all licences granted to certain types of licence holders;

(d) all licences in relation to particular services or schemes, as the case may be.

(6) Within six months from the date of the submission of a properly completed application form together with the requisite documentation, the competent authority shall inform an applicant in writing of its decision whether or not to grant a licence: Provided that, the competent authority shall inform a UCITS management company which has submitted an application for authorisation of a UCITS or where applicable a self-managed UCITS, in writing, within two months of the submission of a complete application whether or not the collective investment scheme has been authorised. Where an investment company has not designated a management company, this proviso shall not apply and the first paragraph of this sub-article shall apply: Provided further that the competent authority shall inform an AIFM in writing within three months of the submission of a complete application whether or not authorisation has been granted. The competent authority may prolong this period for up to three additional months where it considers it necessary due to the specific circumstances of the case and after having notified the AIFM accordingly.

(7) Any requirement in this Act that a person be a fit and proper person to carry out certain activities or functions shall be interpreted as a requirement not only that such person be a fit and proper person to carry out such activities or functions, but also that any qualifying shareholder or members, director of officer of such person, and, in the case of a trust, each one of its trustees, be a fit and proper person to carry out such activities or functions.

(8) (a) Where close links exist between an applicant and any other person the competent authority shall:

(i) only grant a licence if it considers that such close links do not prevent it from exercising effectively its supervisory functions; and

(ii) refuse to grant such a licence if it considers that the laws, regulations or administrative provisions of any country outside Malta governing one or more persons with whom the applicant has close links, or their enforcement, prevent the effective exercise of its supervisory functions.

(b) The competent authority may from time to time, by means of Investment Service Rules under this Act define the circumstances in which "close links" are to be regarded as existing between any two or more persons.

(9) The competent authority shall establish a register of all holders of an investment services licence. This register, which shall be publicly available, shall also indicate the services in relation to which each investment services licence was issued and shall be updated on a regular basis.

(10) The competent authority shall notify ESMA whenever an investment services licence has been granted by the competent authority in terms of this article.