L.S. 460.06 Ordni dwar l-Implimentazzjoni tal-Klawsola ta’ Salvagwardja

(9)of the Code of Organization and Civil Procedure; Cap. 12. "goods" means both Community and non-Community goods unless otherwise specified; "Member States" means countries that are members of the European Community; "the Minister" means Minister responsible for agriculture; "person" means both a natural person or a corporate body; "safeguard clause" means the legal instrument envisaging the possible application of protective measures as stipulated in Article 37 of the Treaty and Section 7(A)1(c) of Annex XI of the same, in relation to products listed in the Annex attached to this Order; "the Treaty" means the Treaty as defined in the Act. 3.

(1)The competent authority shall conduct market surveillance in order to monitor and determine the arrivals and the trade flow development in Malta of the goods listed in the Annex.

(2)The competent authority shall take any such measures as may be necessary to implement the monitoring system referred to in sub-article

(1). In particular, it may require traders to report at regular intervals the quantities, the prices at the wholesale level and the origin of the goods listed in the Annex. *See article 1

(2)of this Order, as originally promulgated. Market surveillance. 1 2 [ S.L.460.06 IMPLEMENTATION OF THE SAFEGUARD CLAUSE

(3)In implementing the provisions of this Order, the competent authority shall take into account data obtained by virtue of: (

1. a)Commission Regulation (EC) 599/2004 concerning the adoption of a harmonised model certificate and inspection report linked to intra-Community trade in animals and products of animal origin; (
2. b)notification and reporting obligations arising from Community law in relation to intra-Community trade in all animals and products referred to in Council Directive 90/425/EEC, all products of animal origin referred to in Council Directive 89/662 for which a health certificate is required, and all animal byproducts referred to in Regulation (EC) No 1774/2002 of the European Parliament and of the Council for which the rules require prior notification; (
3. c)notification and reporting obligations in relation to non-Community goods; and (
4. d)any other notification and reporting obligations in relation to the goods listed in the Annex. Protective measures. 4.

(1)In accordance with Article 37 of the Treaty and subject to the prior authorisation of the Commission, the Minister may adopt protective measures as may be necessary for the implementation of the safeguard clause and may take any such measures and make any such provisions as may be necessary to give effect to the protective measures so adopted.

(2)For the purposes of this article any market entry restriction that may be envisaged to implement the protective measures, may take the form of marketing certificates issued under the procedures provided for in this Order. Marketing certificates. 5.

(1)Marketing certificates shall be issued by the competent authority to any person who files an application in relation to any or all of the goods listed in the Annex: (

1. a)for set quantities or maximum quantities and for a set period of validity, and (
2. b)within a maximum of three weeks from the closing date of a call for applications for marketing certificates issued by the competent authority.

(2)If the quantities specified in the applications exceed the quantities envisaged by the competent authority for the market by virtue of the implementation of the safeguard clause, then the competent authority shall reduce the quantities accordingly and proportionately taking into account the arrivals and trade flow development prior to the implementation of the safeguard clause.

(3)Goods originating from the Community shall, in no case, be treated less favourably than goods originating from outside the Community. Security.

1. Marketing certificates shall be issued against payment by the trader of a deposit, by way of security, in order to ensure that IMPLEMENTATION OF THE SAFEGUARD CLAUSE [ S.L.460.06 3 the goods for which the certificate applies shall be marketed in Malta within the period of validity of the certificate. The security shall correspond to fifty per centum of the wholesale price of the quantity for which the certificate shall be valid: Provided that the security referred to in this article shall be refunded to the trader as soon as he proves to the competent authority that the goods and quantities listed in the marketing certificate have been marketed in Malta during the period of val idity of the certificate. Evidence shall be considered as sufficient if it is presented on an appropriate form and includes information on: (a) the quantities of the respective goods; (b) the delivery period or periods; (c) the supplier of the goods; (d) the name and address of the trader who was responsible for the first sale in Malta; and (e) on request of the competent authority, the presentation of invoices.
2. Marketing certificates shall be suspended for as long as the Commission provides in terms of any decision taken in accordance with Article 37 of the Treaty. Suspension of marketing certificates. 8.

(1)For the purpose of this Order, the competent authority may inspect any relevant documents and can enter the business premises and store rooms of the traders and demand the necessary information to ensure adequate implementation of this Order. Any s u c h i n s p e c t i o n i s t o t a k e p l a c e d u r i n g o ff i c e h o u r s o r b y agreement. Information, trade records and inspections.

(2)Traders shall keep all trade records, including stocks, and shall report to the competent authority any such information or data as may be required in terms of this Order. Such trade records shall be kept for a period of five years unless long periods of retention are stipulated under other legal provisions other than this Order. 9.

(1)It shall be a breach of this Order if a person: (

1. a)does not submit or submits incorrectly or incompletely any data or information as may be required by the competent authority in terms of this Order; (
2. b)obtains a certificate through false or incomplete information; (
3. c)is responsible for the arrival in Malta of goods listed in the Annex without a marketing certificate when such a certificate is necessary in terms of this Order; (
4. d)purchases from other Member States of the European Union or from outside the Community, without the necessary marketing certificate, goods listed in the Annex for which a certificate is necessary; (
5. e)fails to keep records as required by this Order.

(2)Whosoever is in breach of this Order shall be subject to an Infringements and administrative fines. Amended by: L.N. 27 of 2005; L.N. 427 of 2007. 4 [ S.L.460.06 IMPLEMENTATION OF THE SAFEGUARD CLAUSE administrative fine which shall, for a first offence, be not less than two thousand and three hundred and twenty-nine euro and thirtyseven cents (€2,329.37) and not more than eleven thousand and six hundred and forty-six euro and eighty-seven cents (€11,646.87) and to a further administrative fine of not less than fifty-eight euro and twenty-three cents (€58.23) and not more than one hundred and sixteen euro and forty-seven cents (€116.47) for each subsequent day that the offence continues. For subsequent offences, traders shall be liable to an administrative fine of not less than eleven thousand and six hundred and forty-six euro and eighty-seven cents (€11,646.87) and not more than twenty-three thousand and two hundred and ninety-three euro and seventy-three cents (€23,293.73) and to a further administrative fine of not less than one hundred and sixteen euro and forty-seven cents (€116.47) and not more than two hundred and thirty-two euro and ninety-four cents (€232.94) for each subsequent day that the offence continues.

(3)In determining the amount of an administration fine regard s h a l l b e h a d , i n p a r t i c u l a r, t o t h e n a t u r e a n d e x t e n t o f t h e infringement, its duration and its impact on the market. Procedure for administrative fines. Added by: L.N. 27 of 2005. 10.

(1)Before imposing an administrative fine, the competent authority shall write to the person concerned warning him that an administrative fine may be imposed, and inform him of the amount of the fine that may be imposed and the specific reasons for which it may be imposed, and granting such person a period of not less than ten days as the competent authority may determine to be appropriate in the circumstances, during which period such person may make his submissions to the competent authority.

(2)Before deciding whether to impose an administrative fine, the competent authority shall consider the submissions, if any, made to it under subarticle

(1).

(3)If after the lapse of the period during which submissions may be made in accordance with subarticle

(1), the competent authority considers that such person has not given any valid proof or reasons to demonstrate that the administrative fine referred to in subarticle

(1)should not be imposed, the competent authority shall impose an administrative fine in accordance with this Order and shall give notice in writing to such person specifying the nature of the infringement and the amount of the administrative fine due. Cap. 12. Cap. 12.

(4)The notice as referred to in subarticle

(3)shall, without prejudice to the right of appeal under article 13

(2), upon the service of a copy thereof by means of a judicial act on the person indicated in the notice, constitute an executive title for all effects and the purposes of Title VII of Part I of Book Second of the Code of Organization and Civil Procedure.

(5)Notwithstanding the provisions of article 256

(2)of the Code of Organization and Civil Procedure, the executive title referred to in subarticle

(4)shall not be enforceable before the lapse of thirty days from the service of the judicial act therein referred to: Provided that where an appeal against an administrative fine in accordance with article 13

(2)has been filed, the said IMPLEMENTATION OF THE SAFEGUARD CLAUSE [ S.L.460.06 5 executive title shall not be enforceable unless the Court of Appeal rejects the appeal or unless the proceedings on appeal are deserted or otherwise discontinued without final judgement: Provided further that where the Court of Appeal confirms or varies the amount of the administrative fine, the executive title referred to in subarticle

(4)shall apply up to the amount of the fine as confirmed or varied by the Court of Appeal and shall be enforceable after the judgement of the said Court. 11. Where a breach of this Order mentioned in article 9

(1)is com mitted by a body corporate and is proved to have been committed with the consent or involvement of, or attributable to any gross negligence on the part of a person being a director, manager, secretary or other officer, however so described, of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be liable to be proceeded against and punished as if he was responsible for the said infringement. Breaches by body corporate. Added by: L.N. 27 of 2005. 12. There shall be a right of appeal to the Court of Appeal from decisions of the competent authority to impose an administrative fine in terms of this Order. Right of appeal. Added by: L.N. 27 of 2005. 13.

(1)The procedure to be followed in relation to appeals against administrative fines imposed by the competent authority shall be regulated by the provisions of this article. Procedure on appeal. Added by: L.N. 27 of 2005.

(2)A person who is notified with a judicial act referred to in article 10

(4)m ay, within thirty days from the date of such notification, lodge an appeal before the Court of Appeal objecting to the administrative fine so fixed.

(3)The Court of Appeal shall not annul an administrative fine as aforesaid unless such fine cannot at law be imposed in the circumstances of the case or cannot at law be fixed in the amount established by the competent authority, due account being given to the principle of proportionality.

(4)The Court of Appeal shall without delay set down the appeal for hearing at an early date, which date shall in no case be later than forty days from the date of the service of the appeal on the competent authority.

(5)The appeal, and the notification of the date fixed for hearing shall be notified to the competent authority without delay, and the competent authority shall file its reply thereto within twenty days from the date of the notification of the appeal.

(6)The decision of the Court of Appeal upon an appeal referred to in subarticle

(2), confirming the imposition of a fine established by the competent authority or reducing any such fine, shall render such fine a res judicata. 14.

(1)In determining an appeal, the Court of Appeal shall take into account the merits of the case and may, in whole or in part, confirm or annul the decision appealed from, giving reasons for its decision. Hearing and determination of appeal. Added by: L.N. 27 of 2005. 6 [ S.L.460.06 IMPLEMENTATION OF THE SAFEGUARD CLAUSE Cap. 12.

(2)The provisions of the Code of Organization and Civil Procedure regarding the hearing of appeals shall apply to any appeal filed under this Order. Burden of proof. Added by: L.N. 27 of

2. Where in proceedings relating to any alleged breach of this Order any dispute arises as to whether any trader was the importer into Malta of any goods to which this order applies, any trader found in possession of the said goods shall be presumed to be the importer thereof unless he provides proof to the contrary. IMPLEMENTATION OF THE SAFEGUARD CLAUSE [ S.L.460.06 7 ANNEX Category of Goods to which the Order applies Sector Dairy: Pork: Poultry: Eggs: Wine: Tomatoes: Fruit and vegetables: Goods Milk (pasteurised, sterilised, ultra high temperature treated), Yoghurt, Ricotta cheese Meat in terms of Chapter 0203 and Chapter 1602 of the Common Customs Tariff Meat in terms of Chapter 0207 and Chapter 1602 of the Common Customs Tariff Chicken eggs for human consumption in terms of Chapters 0407, 0408 of the Common Customs Tariff Wine products in terms of Chapter 2204 of the Common Customs Tariff Tomatoes and tomato products in terms of Chapter 0702 and Chapters 2002, 2009, 2103, 2005 of the Common Customs Tariff Other fruit and vegetables with important domestic production