Cap. 423 Art. 39Service providers.

(1) In regulating access to service activities falling under this Act and, or the exercise thereof, the Authority shall, where such service activities fall within the scope of the Services

(Internal Market) Act:

(a) act objectively, transparently, efficiently and in a timely manner;

(b) provide information and assistance to service providers and recipients subject to the provisions of this Act;

(c) make it possible to complete all procedures and formalities relating to access to a service activity and to the exercise thereof, available electronically through the designated point of single contact:

Provided that the requirement to make it possible to complete all procedures and formalities electronically through the point of single contact shall not apply to the inspection of premises from which the service is provided or of equipment used by the service provider.

(2) When a service provider is already established in another Member State, and seeks access to a service activity or the exercise thereof in Malta:

(a) where the service activity is subject to an authorisation scheme or the fulfilment of other requirements regulating establishment in Malta, the Authority shall not duplicate requirements or controls which are equivalent or essentially comparable as regards their purpose which a service provider may already be subject to in another Member State where he is already established;

(b) where the Authority requires a service provider to supply a certificate, attestation or document proving that a requirement has been satisfied in terms of this Act or regulations made thereunder:

(i) it shall accept any document from another Member State which serves an equivalent purpose or from which it is clear that the requirement in question has been satisfied;

(ii) it may not require a document from another Member State to be produced in its original form or as a certified copy or certified translation save in the cases provided for in a Community instrument or where such a requirement is justified by an overriding reason relating to the public interest, including public order and public security: Provided that the provisions of this paragraph shall not affect the right of the Authority from requesting a non-certified translation of documentation in the Maltese or in the English language.

(3) Where the number of authorisations available for a service activity is limited because of the scarcity of available natural resources, technical capacity or if justified by an overriding reason relating to public interest, the Authority shall apply a selection procedure to potential candidates in order to ensure impartiality, transparency, conditions of open competition, including in particular, adequate publicity about the launch, conduct and completion of the procedure. In establishing the rules for the selection procedure, the Authority may give consideration to issues relating to public health, social policy objectives, the health and safety of employees or self-employed persons, the protection of the environment, and other overriding reasons relating to the public interest, in conformity with Community law.

(4) An authorisation granted to a service provider shall be for an indefinite period, except where:

(a) the authorisation is being automatically renewed or is subject only to the continued fulfilment of requirements;

(b) the number of available authorisations is limited in terms of sub-article (3);

(c) a limited authorisation period can be justified by an overriding reason relating to the public interest:

Provided that in cases referred to in paragraph (b), an authorisation shall be granted for an appropriate limited period enabling the service provider to recover the cost of investment and to make a fair return on the capital invested, which authorisation may not have an excessive duration, be open to automatic renewal nor confer any other advantage on the service provider whose authorisation has just expired or on any person having any particular links with that provider.

(5) An authorisation granted by the Authority shall enable the service provider to have access to the service activity or the exercise thereof throughout Malta including by means of the setting up of agencies, subsidiaries, branches or offices, except where the authorisation for each individual establishment or a limitation of authorisation to a certain part of the territory is justified by an overriding reason relating to public interest: Provided that the service provider shall be required to inform the Authority of the creation of subsidiaries, branches, offices or agencies whose activities fall within the scope of the authorisation scheme.

(6) In the fulfilment of its authorisation function in terms of this article, the Authority shall:

(a) acknowledge all applications requesting authorisation;

(b) in case of an incomplete application, inform the applicant as quickly as possible of the need to supply any additional information, together with the consequences which ensue should the applicant delay in providing the said information or requirements;

(c) process an application for an authorisation as quickly as possible and in any event within a time period which shall be fixed and made public in advance failing which it shall be deemed that the authorisation has been granted. The period will start to run from the day when all due information has been submitted and any other requirements and formalities have been completed in order for the Authority to process the application: Provided that the time period may be extended once for a limited time when justified by the complexity of the issue. The extension and its duration shall be duly justified and given to the applicant before the original period has expired: Provided further that the Authority may make different arrangements where objectively justified by overriding reasons relating to the public interest including a legitimate interest of third parties;

(d) provide information regarding the means of redress available in case of non-acceptance of an application;

(e) grant an authorisation as soon as the applicant fulfils all requirements, without prejudice to the right of the Authority to revoke or modify an authorisation when the conditions for authorisation are no longer met by the service provider;

(f) in the case of rejected applications due to failure to comply with the required procedures or formalities, inform the applicant of the rejection as soon as possible;

(g) except in the case of the granting of an authorisation, a decision from the Authority, including refusal or withdrawal, shall be fully reasoned and shall be open to challenge before the Administrative Review Tribunal.

(7) With the exclusion of service activities and matters which are declared to be services of a general economic interest, which inter alia may include -

(a) in the electricity sector, services covered by Directive 2003/54/ EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity;

(b) in the gas sector, services covered by Directive 2003/ 55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas;

(c) water distribution and supply services and waste water services, the Authority shall respect the right of service providers that are lawfully established and providing services in another Member State to provide services in Malta, and may not prevent them from providing such service activities by imposing requirements which are discriminatory, unnecessary or disproportionate:

Provided that the Authority may impose requirements with regard to the provision of a particular service activity, where these are justified for reasons relating to public policy, public security, public health or the protection of the environment: Provided also that in establishing whether a service provider is exercising his freedom to provide services within the meaning of this article and Article 49 of the Treaty, or is an establishment case, or whether a service provider is abusively taking advantage of the freedom to provide services, the Authority shall assess and decide each case on its individual merits and in conformity with Community legislation and rulings of the European Court of Justice.

(8) Without prejudice to sub-article (7), in exceptional cases only, the Authority may, in respect of a service provider established in another Member State, take measures in order to ensure the safety of services provided in Malta. When taking such measures, the Authority shall follow the procedure established under the Fourth Schedule to the Services (Internal Market) Act, and ensure the fulfilment of the following conditions:

(a) the national provisions, in accordance with which the measures are taken, have not been subject to Community harmonisation in the field of the safety of services;

(b) the measures taken provide for a higher level of protection of the recipient than would be the case in a measure taken by the Member State of establishment in accordance with its national provisions;

(c) the Member State of establishment has not taken any measures or has taken measures which are insufficient as compared with those requested by the Authority and as referred to in paragraphs 2 and 3 to the Fourth Schedule to the Services (Internal Market) Act;

(d) the measures are proportionate:

Provided that the Authority, upon gaining actual knowledge of any conduct or specific acts by a service provider established in Malta and which provides services in other Member States, which, to its knowledge, could cause serious damage to the health or safety of persons or to the environment, shall inform all other Member States and the European Commission within the shortest possible period of time through the Internal Market Information System.

(9) (a) The Authority shall require service providers established in Malta and falling under its area of competence to keep it updated at all times with the information it identifies as necessary and objectively justified for it to fulfil its supervisory function of services in terms of this Act and the Services (Internal

Market) Act.

(b) The Authority shall exercise its supervisory functions on service providers established in Malta, and falling under its area of competence, whether the service is provided in Malta or in another Member State.

(c) In executing its supervisory functions, when a service is being provided in another Member State by a service provider established in Malta, the Authority shall assist the relevant competent authority of that other Member State in terms of the procedure established in the Second Schedule of the Services

(Internal Market) Act. In doing so, the Authority shall not refrain from taking supervisory enforcement measures in Malta on the grounds that a service has been provided or caused damage in another Member State: Provided that the Authority shall not be bound to carry out checks and controls in the Member State where the service is being provided.

(d) When a service is being provided in Malta, in the event of a temporary movement by a service provider established in another Member State:

(i) the Authority shall participate in the supervision of the service provider in accordance with the procedure set up in the Second Schedule to the Services (Internal Market) Act;

(ii) when the Authority has imposed requirements in terms of the first proviso to sub-article (7), it shall assume responsibility for the supervision of that service provider in Malta in order to ensure compliance with those requirements.

(e) The Authority shall exchange requests and information with the relevant competent authorities of another Member State through the Internal Market Information System.

(f) Without prejudice to the limitations imposed by any other law, the Authority shall supply information to the relevant competent authority of another Member State on disciplinary or administrative actions, or criminal sanctions and decisions concerning insolvency or bankruptcy involving fraud, which directly concern a provider, and which are directly relevant to the provider’s competence or professional reliability, in terms of the procedure contemplated under the Third Schedule of the Services (Internal Market) Act.