Cap. 371 чл. 25Co-operation, sharing and transmission of information.

(1) On the basis of Malta’s international commitments, the competent authority may share its supervisory duties with overseas regulatory authorities in the case of a credit institution licensed in terms of this Act and operating in the country of such overseas regulatory authority or a branch established in Malta and having its head office in another Member State.

(2) The competent authority may further, on the basis of Malta’s international commitments, exchange information with overseas regulatory authorities in other Member States or transmit information to the ESRB, the EBA or the European Securities and Markets Authority established by Regulation (EU) No. 1095/2010, in accordance with this Act and any regulations made and Banking Rules issued thereunder transposing the CRD, with any binding legal instruments issued under the CRD, with the CRR, with Regulation (EU) 2019/2033, with Article 15 of Regulation (EU) No. 1092/2010, with Articles 31, 35 and 36 of Regulation (EU) No. 1093/2010, with Articles 31 and 36 of Regulation (EU) No. 1095/2010, with Directive (EU) 2019/2034 and with other Directives applicable to credit institutions. Such information shall be subject to professional secrecy provided for under this Act and any regulations issued thereunder.

(2A) Notwithstanding article 17(1) of the Malta Financial Services Authority Act and articles 19(6), 34(2), 34(4) and 34(7), the competent authority may also, subject to the conditions set out in sub-articles (2B) and (4A), transmit or share certain information with the following:

(a) the International Monetary Fund and the World Bank, for the purposes of assessments for the Financial Sector Assessment Program;

(b) the Bank for International Settlements, for the purposes of quantitative impact studies;

(c) the Financial Stability Board, for the purposes of its surveillance function:

Provided that where the disclosure of information in terms of this sub-article involves the processing of personal data, any processing of personal data will be in accordance with the requirements laid down in the GDPR.

(2B) The competent authority may only share confidential information with the international bodies referred to in sub-article

(2A) following an explicit request and where at least the following conditions are met:

(a) the request is duly justified in light of the specific tasks performed by the requesting body in accordance with its statutory mandate;

(b) the request is sufficiently precise as to the nature, scope and format of the required information, and the means of its disclosure or transmission;

(c) the requested information is strictly necessary for the performance of the specific tasks of the requesting body and does not go beyond the statutory tasks conferred on the requesting body;

(d) the information is transmitted or disclosed exclusively to the persons directly involved in the performance of the specific task;

(e) the persons having access to the information are subject to professional secrecy requirements at least equivalent to those referred to in article 34(4).

(3) Notwithstanding article 17(1) of the Malta Financial Services Authority Act and articles 19(6) and 34(2), the competent authority may also conclude cooperation agreements, providing for exchanges of information, with third country overseas regulatory authorities or with authorities or bodies of third countries in accordance with sub-articles (7) and (8), only if the information disclosed is subject to a guarantee that professional secrecy requirements at least equivalent to those referred to in article 34(4) are complied with:

Provided that such exchange of information shall be for the purpose of performing the supervisory tasks of the authorities or bodies mentioned in this sub-article: Provided further that where the information originates in another Member State, it shall only be disclosed with the express agreement of the overseas authority which has disclosed it, and where appropriate, solely for the purposes for which the overseas authority gave its agreement.

(4) The competent authority may disclose information under the provisions of sub-article (2) only to the extent that the authorities receiving the information restrict its use for supervisory and regulatory purposes or for such other purposes as may specifically be agreed upon with the competent authority.

(4A) Where a request is made by any of the entities referred to in sub-article (2A), the competent authority may only transmit aggregate or anonymised information and may only share other information at the premises of the competent authority.

(5) The competent authority may further, on the basis of international agreements, or upon reciprocity agreements, authorise overseas regulatory authorities to carry out themselves, or through the intermediation of competent persons they appoint, on-site inspections for supervisory and regulatory purposes in branches or subsidiaries of credit institutions having their head office in the country of the overseas regulatory authority making the inspection: Provided that on-the-spot checking and inspection of branches established in Malta of credit institutions authorised in another Member State, shall be carried out in accordance with the European Passport Rights for Credit Institutions Regulations.

(6) Nothing in this Act or in any other law shall prevent the competent authority from transmitting information to the following for the purposes of their tasks -

(a) the Central Bank, ESCB central banks and other bodies with a similar function in their capacity as monetary authorities when the information is relevant for the exercise of their respective statutory tasks, including the conduct of monetary policy and related liquidity provision, oversight of payments, clearing and settlement systems and the safeguarding of stability of the financial system;

(b) contractual or institutional protection schemes as referred to in Article 113(7) of the CRR;

(c) where appropriate, other public authorities responsible for overseeing payment systems;

(d) the ESRB, the European Insurance and Occupational Pensions Authority established by Regulation (EU) No. 1094/2010 and the European Securities and Markets Authority established by Regulation (EU) No. 1095/2010, where that information is relevant for the exercise of their tasks under Regulations (EU) No. 1092/2010, (EU) No. 1094/2010 or (EU) No. 1095/ 2010:

Provided that the competent authority shall take the appropriate measures to remove obstacles preventing it from transmitting information in accordance with this sub-article: Provided further that information received in accordance with this sub-article shall be subject to professional secrecy requirements at least equivalent to those referred to in article 34(4): Provided further that in an emergency situation, including a situation as described in Article 18 of Regulation (EU) No. 1093/ 2010 or a situation of adverse developments in markets arises, which potentially jeopardises the market liquidity and the stability of the financial system, the competent authority shall communicate without delay information to the ESCB central banks where that information is relevant for the exercise of their statutory tasks, including the conduct of monetary policy and related liquidity provision, the oversight of payments, clearing and settlement systems, and to the ESRB where such information is relevant for the exercise of its statutory tasks.

(7) The provisions of article 17(1) of the Malta Financial

Services Authority Act and of article 34(2), (4) and (7) shall not preclude the exchange of information between the competent authority and other authorities in Malta; between the competent authority and overseas regulatory authorities in other Member States; or between the competent authority and the following, in the discharge of their supervisory functions -

(a) authorities entrusted with the public duty of supervising other financial sector entities and the authorities responsible for the supervision of financial markets;

(b) authorities or bodies charged with responsibility for maintaining the stability of the financial system in Member States through the use of macro-prudential rules;

(c) reorganisation bodies or authorities aiming at protecting the stability of the financial system;

(d) contractual or institutional protection schemes as referred to in Article 113(7) of the CRR;

(e) bodies involved in the liquidation and bankruptcy of institutions and in other similar procedures;

(f) persons responsible for carrying out statutory audits of the accounts of institutions, insurance undertakings and financial institutions;

(g) authorities responsible for supervising the obliged entities listed in points (1) and (2) of Article 2(1) of Directive (EU) 2015/849 for compliance with that Directive, and financial intelligence units in other Member States;

(h) authorities or bodies responsible for the application of rules on structural separation within a banking group; Provided that the provisions of article 34(4) and (7) shall not preclude the disclosure to bodies which administer deposit-guarantee schemes and investor compensation schemes of information necessary for the exercise of their functions: Provided further that the information received shall in any event be subject to professional secrecy requirements at least equivalent to those referred to in article 34(4).

(8) Notwithstanding article 17(1) of the Malta Financial Services Authority Act, the provisions of sub-articles (2) and (3) and of articles 19(6), 34(2), 34(4), 34(5) and 34(7), the competent authority shall exchange information with the authorities responsible for overseeing -

(a) the bodies involved in the liquidation and bankruptcy of institutions and in other similar procedures;

(b) contractual or institutional protection schemes as referred to in Article 113(7) of the CRR;

(c) persons charged with carrying out statutory audits of the accounts of institutions, insurance undertakings and financial institutions: Provided that in the cases referred to in this sub-article, the competent authority shall require fulfilment of at least the following conditions:

(i) that the information is exchanged for the purpose of performing the tasks referred to in this sub-article;

(ii) that the information received is subject to professional secrecy requirements at least equivalent to those referred to in article 34(4);

(iii) where the information originates in another Member State, that it is not disclosed without the express agreement of the overseas regulatory authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement: Provided further that where the authorities or bodies referred to in this sub-article perform their task of detection or investigation through the assistance of persons appointed for that purpose in view of their specific competence and not employed in the public sector, the competent authority may exchange information with the authorities or bodies responsible under the law for the detection and investigation of breaches of company law, to such persons, and shall require the fulfilment of at least the following conditions:

(i) that the information is exchanged for the purpose of detecting and investigating breaches of company law;

(ii) that the information received is subject to professional secrecy requirements at least equivalent to those referred to in article 34(4);

(iii) where the information originates in another Member State, that it is not disclosed without the express agreement of the overseas regulatory authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement.

(9) Notwithstanding article 17(1) of the Malta Financial Services Authority Act and the provisions of articles 19(6), 34(4) and 34(7), the competent authority may authorise the disclosure of certain information to other government departments of other Member States’ central government administrations responsible for legislation on the supervision of institutions, financial institutions and insurance undertakings and to inspectors acting on behalf of those departments: Provided that such disclosures may be made only where necessary for reasons of prudential supervision and prevention and resolution of failing credit institutions. Without prejudice to sub-article (10), persons having access to the information shall be subject to professional secrecy requirements at least equivalent to those referred to in article 34(4): Provided further that in an emergency situation, including a situation as described in Article 18 of Regulation (EU) No. 1093/ 2010 or a situation of adverse developments in markets arises, which potentially jeopardises the market liquidity and the stability of the financial system, the competent authority may disclose information which is relevant to the departments referred to in this sub-article in all Member States concerned.

(9A) The competent authority shall communicate to the EBA the names of the authorities or bodies that may receive information as described in sub-articles (8) and (9).

(9B) In order to implement sub-article (9), the authorities or bodies referred to in sub-article (8), shall communicate to the competent authority which disclosed the information, the names and responsibilities of the persons to whom it is to be sent.

(10) Notwithstanding article 17(1) of the Malta Financial Services

Authority Act, and the provisions of articles 19(6), 34(4) and 34(7), the competent authority may disclose certain information relating to the prudential supervision of credit institutions to parliamentary enquiry committees, courts of auditors and other entities in charge of enquiries in Malta, under the following conditions -

(a) that the entities have a precise mandate under Maltese law to investigate or scrutinise the actions of the competent authority or for laws on the supervision of credit institutions;

(b) that the information is strictly necessary for fulfilling the mandate referred to in paragraph (a);

(c) the persons with access to the information are subject to professional secrecy requirements at least equivalent to those referred to in article 34(4);

(d) where the information originates in another Member State, such information shall not be disclosed without the express agreement of the overseas regulatory authorities which have disclosed it and, solely for the purposes for which those overseas regulatory authorities gave their agreement:

Provided that where the disclosure of information relating to prudential supervision involves the processing of personal data, any processing by the entities referred to in this sub-article shall comply with any applicable data protection legislation.

(11) The competent authority shall not disclose in terms of sub-articles (9) and (10), any information received under Article 52, Article 53(2) and Article 56 of the CRD, except with the express consent of the overseas regulatory authority of the Member State in which such an on-the-spot check or inspection was carried out or of the overseas regulatory authority of the Member State which disclosed such information.

(12) Notwithstanding article 17(1) of the Malta Financial Services Authority Act and of articles 19(6) and 34(2), the competent authority may communicate information referred to in sub-articles (2) and (3) and in articles 34(4), 34(5) and 34(7), to a clearing house or other similar body recognised under national law for the provision of clearing or settlement services of the relevant national market, if it considers that it is necessary to communicate such information in order to ensure the proper functioning of these bodies in relation to defaults or potential defaults by market participants: Provided that the information received under this article shall be subject to the conditions of professional secrecy at least equivalent to those referred to in article 34(4): Provided further that information received by the competent authority under Article 53(2) of the CRD may not be disclosed by the competent authority without the express consent of the overseas regulatory authority in another Member State and the authority in another Member State responsible for the supervision of investment firms which had disclosed it.

(13) There shall be meetings held between a credit institution, its appointed auditors and the competent authority on a trilateral or bilateral basis as circumstances may warrant. These meetings may be called by any of the parties concerned but shall always be chaired by the competent authority.