S.L. 514.8 Art. 39Assessment by the competent authority.

(1) When the competent authority receives the application of the cross-border transfer, in terms of regulation 38, the competent authority shall assess whether:

(a) all the information referred to in regulation 38(2) has been provided by the Maltese IORP;

(b) the administrative structure, the financial situation of the Maltese IORP and the good repute or professional qualifications or experience of the persons running the Maltese IORP are compatible with the proposed transfer;

(c) the long term interests of the members and beneficiaries of the Maltese IORP and the transferred part of the occupational retirement plan are adequately protected AND CROSS-BORDER TRANSFERS)

during and after the transfer;

(d) the technical provisions of the Maltese IORP are fully funded at the date of the transfer, where the transfer results in a cross-border activity; and

(e) the assets to be transferred are sufficient and appropriate to cover the liabilities, technical provisions and other obligations and rights to be transferred, in accordance with the Act and any regulations and Pension Rules issued thereunder.

(2) Subject to the requirements laid down in regulation 37(1)(b) and (c) and to the assessment carried out in terms of sub-regulation (1), the competent authority shall grant or refuse the authorisation of the proposed transfer and communicate its decision to the Maltese IORP within three (3) months of receiving the application pursuant to regulation 38(1).

(3) The competent authority shall be informed by the European regulatory authority of the European IORP, of the results of the assessment of the proposed transfer carried out by the European regulatory authority in terms of Article 12(8) of the Occupational Pensions Directive within eight weeks of the receipt of the application referred to in regulation 38(3).

(4) Prior to taking a decision to grant or refuse the authorisation of the proposed transfer in accordance with this regulation and regulation 38, the competent authority shall take into account the results of the assessment carried out by the European regulatory authority referred to in sub-regulation (3).

(5) The competent authority shall inform the European regulatory authority of the home Member State of the European IORP of its decision to grant or refuse the authorisation of the proposed transfer referred to in sub-regulation (2), within two (2) weeks of taking that decision.

(6) Where the competent authority refuses to authorise the proposed transfer, the competent authority shall provide the reasoning for such refusal within the three (3) month period referred to in sub-regulation (2). Such refusal or a failure to act within the three (3) month period shall be subject to a right of appeal to the Tribunal and the provisions of article 44 of the Act shall apply mutatis mutandis.