Cap. 500 Art. 5Authorisation function and conditions. Conditions for granting authorisations. S.L. 451.03. established in another Member State. Selection from among several candidates. Duration of authorisation. Territoriality. Procedures and formalities.

(1) Where a competent authority grants and regulates access to a service activity, in the carrying out of its authorisation functions, on the basis of an authorisation scheme, the scheme shall be:

(a) non-discriminatory;

(b) necessary, and

(c) justified by an overriding reason relating to the public interest:

Provided that the public interest objective being pursued cannot be attained by means of a less restrictive measure, in particular because a posteriori inspections, checks and controls would take place too late to be genuinely effective.

(2) The competent authority shall assess applications and grant authorisations based on criteria that are:

(a) non-discriminatory;

(b) justified by an overriding reason related to public

(e) made public in advance; and

(f) transparent and accessible.

(3) A competent authority may not make access to or the exercise of a service activity in Malta subject to compliance to any of the following, in conformity with European Union law:

(a) discriminatory requirements based directly or indirectly on nationality or, in the case of companies, the location of the registered office, including in particular:

(i) nationality requirements for the provider, his staff, persons holding the share capital or members of the provider’s management or supervisory bodies;

(ii) a requirement that the provider, his staff, persons holding the share capital or members of the provider’s management or supervisory bodies be resident in Malta;

(b) a prohibition on having an establishment in more than one Member State or on being entered in the registers or enrolled with professional bodies or associations of more than one Member State;

(c) restrictions on the freedom of a provider to choose between a principal or a secondary establishment, in particular an obligation on the provider to have its principal establishment in Malta, or restrictions on the freedom to choose between establishment in the form of an agency, branch or subsidiary;

(d) conditions of reciprocity with the Member State in which the provider already has an establishment;

(e) the case-by-case application of an economic test making the granting of authorisation subject to proof of the existence of an economic need or market demand, an assessment of the potential or current economic effects of the activity or an assessment of the appropriateness of the activity in relation to the economic planning objectives set by the competent authority; this prohibition shall not concern planning requirements which do not pursue economic aims but serve overriding reasons relating to the public interest;

(f) the direct or indirect involvement of competing operators, including within consultative bodies, in the granting of authorisations or in the adoption of other decisions of the competent authorities, with the exception of professional bodies and associations or other organisations acting as the competent authority; large;

(g) an obligation to provide or participate in a financial guarantee or to take out insurance from a provider or body established in Malta; this paragraph is without prejudice to sub-article (5) or to requirements relating to the participation in a collective compensation fund for members of professional bodies or organisations;

(h) an obligation to have been pre-registered, for a given period, in the registers held in Malta or to have previously exercised the activity for a given period in Malta.

(4) Where a competent authority makes access to a service activity or the exercise thereof subject to any of the following non-discriminatory requirements:

(a) quantitative or territorial restrictions;

(b) an obligation on the provider to take a specific legal form;

(c) requirements which relate to the shareholding of a company;

(d) requirements, other than those concerning matters covered by Directive 2005/36/EC on the recognition of professional qualifications as transposed by the Recognition of Professional Qualifications

Regulations, or provided for in other Community Instruments, which reserve access to the service activity in question to particular providers by virtue of the specific nature of the activity, it shall ensure that the requirements are:

(i) not directly nor indirectly discriminatory on the basis of the nationality of the individual or the registered office of the company;

(ii) justified by an overriding reason relating to the public interest; and

(iii) proportionate and suitable for attaining the objective pursued: Provided that where the access to the service activity in question, or the exercise thereof, is a service of general economic interest, this sub-article shall apply only in so far as it does not obstruct the performance, in law or in fact, of the public service obligation task assigned to the provider or providers: Provided further that with effect from 28 December 2009, the introduction of the said non-discriminatory requirements shall be notified to the European Commission through established procedure.

(5) Without prejudice to arrangements provided for in other the financial security of the recipient, to subscribe to a professional liability insurance appropriate to the nature and extent of the risk, or provide a guarantee or similar arrangement which is equivalent or essentially comparable as regards it purpose. For the purpose of this sub-article:

"direct and particular risk" means a risk arising directly from the provision of the service;

"health and safety" means, in relation to a recipient or a third person, the prevention of death or serious personal injury;

"financial security" means, in relation to a recipient, the prevention of substantial losses of money or of value of property;

"professional liability insurance" means insurance taken out by a provider in respect of potential liabilities to recipients and, where applicable, third parties arising out of the provision of the service. A competent authority shall accept as sufficient evidence attestations of such insurance cover issued by credit institutions and insurers established in other Member States.

(6) A competent authority may not impose requirements on a service provider established in Malta which oblige him to exercise a specific service activity exclusively or which restricts him from exercising his service activity jointly or in partnership except in the case of:

(a) regulated professions, so long as it is justified on the grounds of ethics and conduct;

(b) providers of certification, accreditation, technical monitoring, test or trial services, so long as it is justified on the grounds of independence and impartiality: Provided that where a competent authority authorises or permits the carrying out of multi-disciplinary activities between providers established in Malta, it shall ensure prevention of any conflict of interest from among the providers, the subsistence of independence and impartiality, and the adherence to professional ethics and codes conduct where applicable.

(7) A competent authority or any other professional body empowered at law to regulate the exercise of regulated professions, shall not prohibit commercial communications by the regulated professions: Provided that professional rules on commercial communications shall be non-discriminatory, justified by an overriding reason relating to the public interest and proportionate:

Provided further that commercial communications by the regulated professions comply with professional rules, in conformity with Community law, which relate, in particular, to the Member State, and seeks establishment in Malta:

(a) where the service activity is subject to an authorisation scheme or the fulfilment of other requirements regulating establishment in Malta, the competent authority shall not duplicate requirements or controls which are equivalent or essentially comparable as regards their purpose to which a provider may already be subject to in another Member State where he is established: Provided that the provisions of this paragraph shall not apply to the documents referred to in Article 7(2) and 50 of Directive 2005/36/EC, in Articles 45(3), 46, 49 and 50 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in Article 3(2) of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, in the First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community and in the Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another Member State;

(b) where a competent authority requires a provider to supply a certificate, attestation or document proving that a requirement has been satisfied in terms of this Act:

(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 any Community instrument or where such a requirement is justified by an overriding reason relating to the public interest, including public order and public or English language: Provided further that the competent authority may make use of the electronic system referred to in article 8 to carry out necessary verification, checks and controls with the relevant competent authority in the Member State of establishment;

(c) when a competent authority requires a provider to subscribe to a professional liability insurance in terms of sub-article (5), a competent authority may not require a provider to subscribe to a professional liability insurance or a guarantee where he is already covered by an insurance or guarantee which is equivalent or essentially comparable, as regards its purpose and the cover it provides in terms of the insured risk, the insured sum, or a ceiling for a guarantee and possible exclusions from the cover in another Member State in which the provider is already established. Where equivalence is only partial, a competent authority may require a supplementary insurance or guarantee to cover those aspects not already covered.

(9) (a) Where the number of authorisations available for a given 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, a competent 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.

(b) Subject to the provisions of paragraph (a) and sub-articles (1) and (2), in establishing the rules for the selection procedure, the competent 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, the preservation of cultural heritage and other overriding reasons relating to the public interest, in conformity with Community law.

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

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

(ii) the number of available authorisations is limited in terms of sub-article (9); authorisation shall be granted for an appropriate limited period enabling the provider to recoup the cost of investment and to make a fair return on the capital invested, which authorisation may not be open to automatic renewal nor confer any other advantage on the provider whose authorisation has just expired or on any person having any particular links with that provider.

(11) (a) An authorisation granted by a competent authority shall enable the provider to have access to the service activity or the exercise thereof throughout the national territory including by means of setting up 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.

(b) The service provider shall be required to inform the competent authority of the creation of subsidiaries, branches, offices or agencies whose activities fall within the scope of the authorisation scheme.

(12) In the fulfilment of its authorisation function, a competent authority shall:

(a) ensure that the procedures and formalities are maintained sufficiently simple, clear, objective and made public in advance, and shall not unduly complicate or delay the commencement of the service activity by the provider;

(b) acknowledge all applications requesting authorisation; specifying the time period within which the application shall be processed referred to in paragraph (d), the available means of redress and where applicable, a statement that in the absence of a response within the time-period specified the authorisation shall be deemed to have been granted;

(c) in the 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;

(d) 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 and requirements have been submitted and any other formalities have been the issue, and due justification shall be given to the applicant before the original period has expired: Provided further that a competent authority may make different arrangements where objectively justified by overriding reasons relating public interest;

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

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

(g) 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;

(h) except in the case of the granting of an authorisation, a decision from a competent authority, including refusal or withdrawal, shall be fully reasoned and shall be open to challenge before the Appeals Board.