Chapter 81

UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. CHAPTER 81 UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) ACT 1 Substituted by: XXIII.2000.30. To regulate certain works in connection with utilities and other services. 7th August, 1934 ORDINANCE XXIII of 1934, as amended by Ordinance XLV of 1935; Government Notice No. 296 of 1939; Ordinance XX of 1961; Legal Notice 4 of 1963; Acts: XXIV of 1963, XXIV of 1966, XVI of 1975; Legal Notice 148 of 1975; Acts: XI of 1977, XIII of 1983, XII of 1991, XXXIII of 1997, XXIII of 2000 and VII of 2004; Legal Notice 408 of 2007; Acts XV of 2009 and IX of 2011; Legal Notice 180 of 2012; Act XVIII of 2016 and Act LII of 2021. PART I Preliminary 1. The short title of this Act is Utilities And Services (Regulation of Certain Works) Act. 2. In this Act unless the context otherwise requires: "access point" means a physical point, located inside or outside the building, accessible to undertakings providing or authorized to provide public communications networks, where connection to the high-speed-ready in-building physical infrastructure is made available; "associated facilities" means associated services, physical infrastructures and other facilities or elements associated with a network or a utility service, which enable or support the provision of services through that network or service, or have the potential to do so, and include buildings or entries to buildings, building wiring, antennae, towers and other supporting constructions, ducts, conduits, masts, manholes and cabinets; "associated service" means a service associated with a network or a utility service which enables or supports the provision, self-provision or automated-provision of services through that network or service, or has the potential to do so, and includes number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides (EPGs) as well as other services such as identity, location and presence service; "bodies governed by public law" means bodies that have all of the following characteristics: (a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; (b) they have legal personality; and (c) they are financed, in full or for the most part, by the State, or regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or Added by: XVIII. 2016.3. Short title. Substituted by: XXIII.2000.30. Interpretation. Amended by: XLV.1935.2. See Govt. Notice No. 296 of the 3rd July, 1939. XX. 1961.17; L.N. 4 of 1963; XXIV.1963.45; XXIV. 1966.14; XVI.1975.50; XII.1991.42; XXXIII.1997.44. Substituted by: XXIII.2000.30. Amended by: VII. 2004.41; L.N. 180 of 2012. Substituted by: XVIII. 2016.4. Amended by: LII. 2021.2. 2 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law; "civil works" means every outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function and entails one or more elements of a physical infrastructure; "competent authority for perm it granting" or "competent authorities for permit granting" means such public sector body or bodies responsible for the granting of civil works permits; "competent infrastructure regulator" or "competent infrastructure regulators" means such public sector body or bodies responsible for the infrastructure regulation as may be listed in the First Schedule, which Schedule may from time to time be amended by the Minister responsible for infrastructure by means of a notice in the Gazette; "competent utility regulator" or "competent utility regulators" means any such public sector body or bodies responsible at law for the regulation of those utility services listed in accordance with the Second Schedule, which list shall state the authority responsible for the regulation of each of the different utility services and, where applicable the networks therein listed: Provided that this Schedule may from time to time be amended by the Prime Minister by notice in the Gazette; Cap. 399. "Dispute Resolution Board" or "Board" means the Utilities Networks Dispute Resolution Board established under Part IV; "electronic communications network" and "electronic communications service" shall respectively have the same meaning as under the Electronic Communications (Regulation) Act; "energy" includes electrical energy, fuel, heat when transmitted as a commercial activity, and energy derived from renewable sources; "facilities" includes the placing of cables and wires or other works carried out either below, above, by the side of or in any building, entry to or common parts of any building or tenement and any trenches, pits, poles, stays, brackets and all other accessories essential to the proper working of the networks to be cut, placed, erected in or affixed to or within any building, entry to or common area of any building or any tenement however so described; "high-speed electronic communications network" means an electronic communications network which is capable of delivering broadband access services at speeds of at least thirty Mbps: Provided that the Minister responsible for electronic communications may by notice in the Gazette amend this definition to increase such speeds; "high-speed-ready in-building physical infrastructure" means inbuilding physical infrastructure intended to host elements or enable delivery of high-speed electronic communications networks; UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. 3 "in-building physical infrastructure" means physical infrastructure or installations at the end-user’s location, including elements under joint ownership, intended to host wired and, or wireless access networks, where such access networks are capable of delivering electronic communications services and connecting the building access point with the network termination point; "major renovation works" means building or civil engineering works at the location of the end-user encompassing structural modifications of the entire in-building physical infrastructure or a significant part thereof, including the common parts, and requiring a building permit; "network" means any physical infrastructure utilised by a network operator; "network operator" means an undertaking providing or authorized to provide public communications networks as well as an undertaking providing a physical infrastructure intended to provide: (a) a service of production, transport or distribution of: (i) (ii) (iii) (iv) gas; electricity, including public lighting; heating; water, including disposal or treatment of waste and sewage, and drainage services; (b) transport services, including railways, roads, ports and airports; "network termination point’’ unless the context otherwise requires, has the same meaning as defined under article 2 of the Electronic Communications (Regulation) Act; Cap. 399. "owner" includes occupier and user; "permit" means an explicit or implicit decision of a competent authority for permit granting following any procedure under which an undertaking is required to take steps in order to legally carry out building or civil engineering works; "physical infrastructure" means any element of a network which is intended to host other elements of a network without becoming itself an active element of the network, including but not limited to, pipes, masts, ducts, inspection chambers, manholes, cabinets, buildings or entries to buildings, antenna buildings, towers and poles: Provided that cables, including dark fibre, as well as elements of networks used for the provision of water intended for human consumption as defined in regulation 3 of the Water Intended for Human Consumption Regulations are not physical infrastructure within the meaning of this Act; "public sector body" means a state, regional or local authority, a body governed by public law or an association formed by one or several such authorities or one or several such bodies governed by public law; S.L. 449.57 4 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) "Single Information Point" means the public entity appointed under article 19 to perform the functions of a single point of contact; Cap. 490. "tenement" means any tenement whether private or public and includes any road, path, building or construction however so described, or water; " Tr i b u n a l " m e a n s t h e A d m i n i s t r a t i v e R e v i e w Tr i b u n a l established by article 5 of the Administrative Justice Act; "undertaking" means, unless stated otherwise in this Act, an undertaking providing or authorized to provide public communications networks; "utilities" includes electronic communications services, gas, electricity including public lighting, heating, water including disposal or treatment of waste and sewage, and drainage systems, transport services including roads, ports and airports, and such other services as the Minister responsible for infrastructure may by notice in the Gazette designate as “utilities” for the purposes of this Act; and "Utilities Committee" means the Utilities Services Advisory Committee established under article 22. Object of this Act. Substituted by: XXIII.2000.30. Amended by: VII. 2004.42. Added by: XVIII. 2016.6. Power to order placing of cable, etc.. Amended by: L.N. 4 of 1963; XI. 1977.2. Substituted by: XXIII. 2000.30. Amended by: VII. 2004.43; XV. 2009.49; IX. 2011.62; L.N. 180 of 2012. Substituted by: XVIII. 2016.7; LII. 2021.4. Power to order collocation, etc. Added by: XVIII. 2016.8. Amended by: LII. 2021.5. 3. (Deleted by Act XVIII. 2016.5.). PART II Regulation of Utilities’ Infrastructure Access 4. (1) For the purposes of this Act, it shall be lawful for the competent infrastructure regulator, either of its own initiative or on the application of a network operator made in accordance with this Part, to order the installation of facilities on, over or under public or private property. Any such order shall be notified by the aforesaid regulator to the owner of the said tenement at least ten days prior to the carrying out of any of the works aforesaid. (2) The competent infrastructure regulator shall consider and decide an application by a network operator for the granting of rights to install facilities on, over or under public or private property in accordance with the applicable provisions of this Part. (3) Where public or local authorities retain ownership or control of undertakings providing any utility services and, or networks, there shall be in place an effective structural separation of the function responsible for granting the rights referred to in sub-article (2) from the activities associated with ownership or control. 4A. (1) Where a network operator has exercised the right under national law to install facilities on, over or under public or private property, or has taken advantage of a procedure under national law for the expropriation or use of property, the competent infrastructure regulator may order the collocation, use or sharing of network elements and, or facilities on, over or under public or private property in relation to any cables, wires, physical UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. infrastructure or associated facilities or other accessories, however so described, used or to be used for the provision of any utilities by a provider of any such utilities in any buildings, common areas, entries to buildings, trenches, pits, ducts, conduits, manholes, c a b i ne ts o r o n a ny po l e s , m a s t s, a nte nna e , towe rs or othe r supporting constructions, stays or brackets, cut, placed, erected or affixed by another provider of any such utilities. (2) An order under sub-article (1) may be issued only in those specific areas where the competent infrastructure regulator considers that the issue of such an order is necessary to protect the environment, public health, public security or to meet town planning and country objectives. In doing so the competent infrastructure regulator may also: (a) order the taking of such measures as it may consider necessary to facilitate the coordination of public works; and (b) provide for rules of apportioning the costs of facility or property sharing. (3) An order under sub-article (1) may be issued by the competent infrastructure regulator acting of its own initiative or following the written request of an undertaking providing an utility service or network, or of a competent utility regulator who considers the issue of such an order necessary for the provision of a utility service. Before deciding whether to issue such an order, the competent infrastructure regulator shall conduct a public consultation during which all interested parties, including where applicable the competent utility regulator or regulators as the case may be, are afforded such reasonable opportunity as the competent infrastructure regulator considers appropriate in the circumstances, to express their views in writing. (4) The competent infrastructure regulator shall notify any order made under sub-article (1) to the provider of the utility service impacted by the order of collocation, and to any other persons as it may consider appropriate in the circumstances where it considers that such persons may have an interest in knowing about the issue of the order, at least ten days prior to the carrying out of any of the works aforesaid: Provided that no such order shall be issued if it relates to a dispute lodged before the Dispute Resolution Board under this Act, or to an appeal before the competent appellate adjudicative forum contesting a final decision issued by that Board on any such dispute lodged before it. (5) Any measures taken by the competent infrastructure regulator in accordance with this article shall be objective, transparent, non-discriminatory, and proportionate, and where appropriate, these measures shall be carried out in coordination with the competent utility regulator or regulators and any other relevant public sector body. 5 6 CAP. 81.] Coming into effect of orders, etc. Added by: XVIII. 2016.8. UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) 4B. An order issued in accordance with article 4 or article 4A shall have effect immediately on the lapse of the tenth day following its notification; and the recipient of the order shall thereupon fully, immediately and properly, implement the same or allow the full, immediate and proper implementation thereof, and shall refrain from causing or continuing to cause any impediment or hindrance to the said implementation: Provided that the implementation of any such order shall not be impeded, restricted or delayed by reason of any claim for charges made by the recipient of the order. Charging for collocation and dispute related thereto. Added by: XVIII. 2016.8. 4C. (1) The recipient of an order made under article 4A shall be allowed to charge for the collocation or the use of the facilities affixed or erected by it at rates based on reasonable relevant costs. Charges for collocation or use of the same facilities shall be costoriented and shall not include charges for overheads such as marketing, personnel or maintenance costs, other than those directly incurred on the facilities used. (2) The recipient of an order made under article 4A shall submit its charges to the provider collocating or making use of the facilities affixed or erected by the said recipient within thirty days of commencement of collocation or use as aforesaid: Provided that if the provider collocating or making such use disagrees with such charges it may, within twenty days of receipt of the same, make a dispute before the Dispute Resolution Board which Board shall resolve any such dispute within the shortest time frame and in any case within two months from the date of receipt of the dispute except in exceptional circumstances in accordance with the provisions of article 32. (3)The competent infrastructure regulator may, following consultation in writing with the competent utility regulator or regulators, upon application by the recipient of an order made under article 4A, order the person allowed to collocate or to make use of the facilities affixed or erected by the said recipient to provide security for the payment of charges due hereunder in respect of such collocation or use in an amount and in such form as may be determined by the competent infrastructure regulator. Exercise of functions by the competent infrastructure regulator. Added by: XVIII. 2016.8. Substituted by: LII. 2021.6. 4D. (1) The competent infrastructure regulator in the exercise of its functions under this Act shall: (a) act on the basis of simple, efficient, transparent and publicly available procedures, applied without discrimination and without delay, and shall in any case make a decision within six months from the date of an application made in accordance with the provisions of this Part, except in the case of expropriation; (b) follow the principles of transparency and nondiscrimination in attaching conditions to any rights it may grant to a network operator or a utility service provider as the case may be; and (c) give reasons for its decisions: UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. 7 Provided that the competent infrastructure regulator shall, in relation to amendments that it may consider making to any rights, conditions and procedures relating to works carried out in accordance with this Part, ensure that any amendment is only made in objectively justified cases and in a proportionate manner. Before making any such amendment, the competent infrastructure regulator shall give notice in such manner as it considers appropriate of its intention, inviting interested parties, including users and consumers, to make representations on the proposed amendments within a period of not less than thirty days as may be specified in the notice. The competent infrastructure regulator may in those circumstances which it considers to be exceptional, shorten such period: Provided further that the competent infrastructure regulator shall in writing consult with the competent utility regulator or regulators in relation to amendments that it may consider making to collocation orders which were previously issued. (2) The competent infrastructure regulator shall, in relation to any fees it may be authorized to impose by or under this Act relating to such works, ensure that fees are objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose. (3) The competent infrastructure regulator may require any person to provide it with any information which it considers to be necessary for the performance of its tasks under this Part. 4E. Unless provided otherwise in this Act, a person or a competent utility regulator aggrieved by any regulatory decision however so described taken under this Part may appeal to the Tribunal: Provided that any such person in appealing shall explain his juridical interest in impugning the decision appealed from: Contestation of a regulatory decision. Added by: XVIII. 2016.8. Amended by: LII. 2021.7. Provided further that where applicable the competent utility regulator which has an interest in the matter, shall also be notified with any appeal filed under this article and shall be entitled to intervene in such proceedings and make submissions thereon. 5. Where the works contemplated in articles 4 and 4A cause damage to a tenement or cause annoyance to the owner of the tenement, the owner may, within three months from the completion of the said works, apply to the First Hall of the Civil Court praying for the determination of the compensation which may be due in respect of such damage or annoyance: Provided that (a) no damage or annoyance entitling the owner to compensation shall be considered to arise from the fact that a cable, wire or other essential accessory has been Compensation. Amended by: L.N.148 of 1975; XXIII. 2000.30; XVIII. 2016.9. Cases in which no compensation is due. 8 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) placed, erected or affixed either below, above or by the side of any tenement, if such cable, wire or other accessory does not cause any inconvenience, or if such cable, wire or other accessory is run over a tenement at a height of not less than four and a half metres from the surface thereof, or, in the case of a building, at a height of not less than three metres from the level of the roof thereof; (b) no claim for compensation shall be deemed to arise from the mere fact that a cable or wire passes in close proximity to or is supported by a bracket affixed to the wall of a building, or that a pole or stay is fixed to the upper part of such wall for the purpose of attaching thereto a cable or wire at the requisite height, if, in either case, the said cable or wire does not cause a noise which may be distinctly heard inside the building when the doors and windows are open, or other inconvenience; (c) no claim for compensation shall be deemed to arise from the mere fact that one or more poles or other supports are erected in any tenement, or in any field or site, so long as the distance between the poles or supports is not less than thirty-six and a half metres, and no pole or support occupies more than one hundred and sixty square centimetres of ground. Where owner of tenement may ask for diversion of proposed route. Amended by: L.N. 148 of 1975; XXIII. 2000.30; XVIII. 2016.10. 6. (1) The owner of any tenement affected by an order made under article 4 may, within the period of eight days from the date of the said order, apply to the competent infrastructure regulator requesting that the route of the proposed cable or wire be diverted in such a way as to obviate the necessity of cutting, placing, erecting or affixing any trench, cable, wire, pole, stay, bracket or other essential accessory, in, over or upon the said tenement. (2) Such a request shall be granted provided (a) the route, if diverted, will function with equal efficiency as the proposed route, and will not be more liable to damage from any cause whatsoever; and (b) the diversion of the proposed route will not interfere with other property or give rise to a claim for compensation under article 5; and (c) the diversion of the proposed route will not entail a greater expense to the provider of the utility service concerned either for its original construction or its subsequent repair and maintenance. (3) Before taking a decision further to any request under this article the competent infrastructure regulator in dealing with such a request, shall (a) where necessary, consult in writing with the competent utility regulator or regulators; or, and (b) consult in writing with any persons who the competent UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. 9 infrastructure regulator considers may be effected in a negative manner, giving such persons a reasonable opportunity to make their submissions in writing. 6A. For the purpose of inspecting, testing or maintaining in good state of repair any work carried out under this Act, the provisions of article 471 of the Civil Code shall apply. Applicability of article 471 of the Civil Code. Added by: XVIII. 2016.11. Cap. 16. 7. (1) Where the owner of a tenement in, over or upon which there is any cable, wire, pole, stay, bracket or other essential accessory, intends to make alterations in the tenement and such alterations cannot be effected unless - Where the owner of tenement may ask for removal of a cable, etc. Amended by: XXIII.2000.30. Substituted by: XVIII. 2016.12. (a) the cable, wire, pole, stay, bracket or other essential accessory is temporarily or permanently removed; or (b) the position of such cable, wire, pole, stay or bracket or other essential accessory cannot be changed, then the owner may request that such work be temporarily or permanently removed, or else that the position of such work be changed, this notwithstanding that the owner had given his consent for the execution of the work or had received compensation in terms of this Part. (2) A request under sub-article (1) shall be made by application before the First Hall of the Civil Court whereby the owner shall state under oath why in accordance with the provisions of subarticle (1) the request is being made: Provided that the owner in filing such a request shall: (a) notify the competent infrastructure regulator, any competent utility regulator or regulators where applicable, and any network operator who may be effected in a negative manner; and (b) give three months notice of his intention to affect the alterations aforesaid. (3) A network operator may, within twenty days from notification of a request made under this article, contest such request only if it can prove that the owner has other reasonable means of making the alterations and that it shall be affected in a negative manner if the request is upheld. (4) If the request under this article is not contested, the owner may without any further notice proceed with the alterations on the lapse of the three month notice period referred to in sub-article (2)(b): Provided that the owner shall, where his request has not been contested or, if contested, the contestation thereof has been rejected, refund any compensation which he may have received. 10 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) Works carried out before commencement of Act. Amended by: XXIII.2000.30; XVIII. 2016.13. 8. Every work carried out before the commencement of this Act in, over or upon any tenement in connection with the fixed electrical power and electronic communications networks without any protest on the part of the owner of the tenement shall be deemed to have been so carried out with the consent of the owner and shall not entitle the owner of the tenement to any compensation, notwithstanding that the provisions of this Act shall not have been observed. Penalty for obstruction. Amended by: XIII. 1983.5; XXIII. 2000.30; L.N. 408 of 2007; XVIII. 2016.14. 9. Whosoever resists or obstructs any person authorized to enter any tenement in connection with the execution of his duties under this Act, shall be liable, on conviction, to a fine (multa) not exceeding five thousand euro (€5,000). Penalty for causing wilful damage to works. Amended by: XIII. 1983.5; XXIII.2000.30; L.N. 408 of 2007; XVIII. 2016.15. 10. Any person who wilfully interferes with or causes damage of any works connected with the fixed electrical power and electronic communications networks in Malta, shall be liable to a fine (multa) not exceeding five thousand euro (€5,000): Provided that nothing in this Act shall prevent a prosecution under any other law, but so that a person shall not be punished twice for the same offence. Power of Minister to make regulations. Amended by: L.N. 4 of 1963; XI. 1977.2; XXIII. 2000.30; VII. 2004.44; XV. 2009.49. 11. (Deleted by Act XVIII. 2016.16). Penalty for contravention of regulations. Amended by: XIII. 1983.5; XXIII.2000.30; L.N. 408 of 2007. 12. (Deleted by Act XVIII. 2016.16). Power to charge fees. Added by: XXIII. 2000.30. Amended by: XV. 2009.49; XVIII. 2016.4, 17. 13. Where cables or wires are placed or other works are carried out below, above or by the side of any road, it shall be lawful for the competent infrastructure regulator to charge such fees for any land which under any law is vested in the competent infrastructure regulator in Malta and which is affected or occupied by such works, as may be determined from time to time by regulations made by the Minister in accordance with article 37. Added by: XVIII. 2016.18. PART III Access to existing physical infrastructure. Added by: XVIII. 2016.18. Facilitating High-Speed Electronic Communications Networks 14. (1) A network operator shall meet all reasonable requests made in writing by an undertaking requesting access to its physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of high-speed electronic communications networks: Provided that the undertaking concerned shall in its request specify the elements of the project for w hich the access is requested, including a specific time frame: UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. 11 Provided further that nothing in this Part shall be construed as prohibiting network operators from offering access to their physical infrastructure. (2) Any refusal of access following a request made in accordance with sub-article (1) shall be based on objective, transparent, and proportionate criteria including but not limited to: (a) the technical suitability of the physical infrastructure to which access has been requested to host any of the elements of high-speed electronic communications networks referred to in sub-article (1); (b) availability of space to host the elements of the highspeed electronic communications networks referred to in sub-article (1), including that the future needs for space of the network operator are sufficiently demonstrated; (c) safety and public health concerns; (d) integrity and security of any network, in particular of critical national infrastructure; (e) the risk of serious interferences of the planned electronic communications services with the provision of other services over the same physical infrastructure; (f) the availability of viable alternative means of wholesale physical network infrastructure access provided by the network operator and suitable for the provision of high-speed electronic communications networks, provided that such access is offered under fair and reasonable terms and conditions. (3) The network operator when giving its refusal shall in writing state its reasons for refusing the request, which reasons must be given within two months from the date of receipt of the complete request for access: Provided that in doing so the network operator shall, where applicable, provide the undertaking making the request with any relevant documentation in support of its refusal. (4) Where access is refused or an agreement on specific terms and conditions, including price, has not been reached within two months from the date of receipt of the complete request for access, then either party may file a dispute with the Dispute Resolution Board on the lapse of the two months period referred to in this sub-article. (5) The Dispute Resolution Board shall, in determining any dispute, referred to it in accordance with this article, taking into account the principle of proportionality, issue a binding decision to resolve the dispute, including the setting of fair and reasonable terms and conditions, including price where appropriate: Provided that where the dispute relates to access to the infrastructure of an electronic communications network provider, the Board shall, where appropriate, take into account the objectives set out in article 4 of the Electronic Communications (Regulation) Act: Cap. 399. 12 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) Provided further that any price set by the Board shall ensure that the access provider has a fair opportunity to recover its costs and shall take into account the impact of the requested access on the business plan of the access provider, including the investments made by the network operator to whom access is requested, in particular in the physical infrastructures used for the provision of high-speed electronic communications services. (6) The Dispute Resolution Board shall resolve any dispute referred to it in accordance with this article within the shortest possible time frame and in any case within four months from the date of the receipt of the complete request, except in exceptional circumstances in accordance with the provisions of article 32. (7) The provisions of this article shall be without prejudice to the right to property of the owner of the physical infrastructure in cases where the network operator is not the owner, and to the right to property of any other third parties, such as landowners and private property owners. Transparency concerning physical infrastructure. Added by: XVIII. 2016.18. 15. (1) An undertaking in the course of requesting access to physical infrastructure in accordance with article 14(1), has the right to access, upon request, the following minimum information concerning the existing physical infrastructure of any network operator: (a) location, and route; (b) type and current use of infrastructure; and (c) a contact point: Provided that, in doing so, the undertaking shall specify the area in which it envisages deploying elements of the high-speed electronic communications networks: Provided further that the provision of any such information to the undertaking may be subject to any limitations consequential to the security of the networks and their integrity, national security, public health or safety, confidentiality or operating and business secrets as may be determined by the competent infrastructure regulator. (2) A public sector body holding in electronic format, by reason of its tasks, elements of the minimum information referred to in sub-article (1) concerning the physical infrastructure of a network operator, shall make such information available: (a) through the Single Information Point by electronic means; and, or (b) to an undertaking upon the request in writing of that undertaking, this without prejudice to the limitations stated in sub-article (1): Provided that any update to that information or any new element of minimum information referred to in sub-article (1) received by the public sector body shall be made available to the Single Information Point within two months from the date of its receipt, which period of such two months may be extended by a UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. further period not extending one month, where this is required to guarantee the reliability of the information provided: Provided further that any information provided to the Single Information Point shall be updated forthwith by the entity responsible for the provision of such information which entity shall inform the Single Information Point accordingly. (3) Minimum information made available to the Single Information Point in accordance with sub-article (2) shall be accessible promptly, through the Single Information Point, in electronic format and under proportionate, non-discriminatory and transparent terms. Such access shall be made available through the Single Information Point by not later than the 1 January 2017. (4) Where the minimum information referred to in sub-article (1) is not available through the Single Information Point, then network operators shall provide access to such information upon the specific written request by an undertaking. In making such a request the undertaking shall specify the area envisaged for the deployment of elements of high-speed electronic communications networks: Provided that access to information shall be granted within two months from the date of receipt of the written request under proportionate, non-discriminatory and transparent terms without prejudice to the limitations under sub-article (1). (5) Upon the specific written request of an undertaking, a network operator shall meet reasonable requests for on-site surveys of specific elements of its physical infrastructures. In making such a request the undertaking shall specify the elements of the network concerned with a view to deploying elements of high-speed electronic communications networks: Provided that on-site surveys of the specified network elements shall be granted under proportionate, non-discriminatory and transparent terms within one month from the date of receipt of the written request, without prejudice to the limitations in subarticle (1). (6) In the event of a dispute arising in connection with the rights and obligations provided for in this article, either party may refer the dispute to the Dispute Resolution Board which shall, after taking full account of the principle of proportionality, issue a binding decision to resolve the dispute within the shortest possible time frame and in any case within two months, except in exceptional cases in accordance with article 32. (7) The Single Information Point following consultation with any competent utility regulator or regulators as the case may be, and such other public sector body or bodies as it may consider necessary, may provide for exemptions from the obligations in subarticles (1) to (5) in the case of existing physical infrastructures considered not technically suitable for the deployment of electronic communications networks or in the case of critical infrastructure. In doing so it shall give its reasons in writing and shall before taking a final decision, give any interested parties the opportunity 13 14 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) to make any written submissions within such reasonable time as it may establish. (8) An undertaking which obtains any information pursuant to the provisions of this article shall, where appropriate, ensure that the information so acquired is treated with due consideration to confidentiality, and operating and business secrets. Coordination of civil works. Added by: XVIII. 2016.18. 16. (1) A network operator has the right to negotiate agreements concerning the coordination of civil works with undertakings with a view to deploying elements of high-speed electronic communications networks. (2) A network operator performing directly or indirectly civil works, either fully or partially financed by public means, shall comply with any reasonable written request to coordinate civil works on transparent and non-discriminatory terms, made by an undertaking, with a view to deploying elements of high-speed electronic communications networks, provided that: (a) such request does not entail any additional costs, including because of additional delays, for the initially envisaged civil works; (b) such request does not impede control over the coordination of the works; and (c) the request to coordinate is filed as soon as possible and in any case at least one month before the submission of the final project to the competent authorities for permit granting: Provided that the Minister responsible for infrastructure may make such regulations as he may consider necessary on apportioning the costs associated with the coordination of civil works. In doing so the Minister shall consult with the competent utility regulator or regulators as the case may be and with any public sector body or bodies as he may consider necessary in the circumstances. (3) If an agreement on the coordination of civil works in accordance with sub-article (2) is not achieved within one month from the date of receipt of the formal written request to negotiate, then any aggrieved party may refer the dispute to the Dispute Resolution Board. (4) The Dispute Resolution Board shall, in determining any dispute referred to it in accordance with this article, taking full account of the principle of proportionality, issue a binding decision to resolve the dispute raised, including the setting of fair and nondiscriminatory terms and conditions, and charges where appropriate: Provided that the Board shall resolve any dispute referred to it in accordance with this article within the shortest possible time frame and in any case within two months from the date of the receipt of the dispute except in exceptional circumstances in accordance with article 32. UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. 15 (5) The competent authority for permit granting may, following consultation in writing with the competent utility regulator or regulators as the case may be and with such other public sector b o d y o r b o d i e s a s i t m a y c o n s i d e r n e c e s s a r y, p r o v i d e f o r exemptions from the obligations in this article for civil works of insignificant importance, such as in terms of value, size or duration, or in the case of critical national infrastructure: Provided that in so doing, the competent authority for permit granting shall give its reasons in writing and shall before taking a final decision, give any interested parties the opportunity to make any written submissions on the draft exemptions within such reasonable time as it may establish. 17. (1) In order to negotiate agreements on the coordination of civil works referred to in article 16, a network operator shall make available upon the specific written request of an undertaking, the following minimum information concerning on-going or planned civil works related to its physical infrastructure for which a permit has been granted, a permit granting procedure is pending or a first submission to the competent authority for permit granting is envisaged in the following six months: (a) the location and the type of works; (b) the network elements involved; (c) the estimated date for starting the works and their duration; and (d) a contact point: Provided that the provision of any such information to the undertaking shall be subject to any limitations consequential to the security of the networks and their integrity, national security, public health or safety, confidentiality or operating and business secrets. (2) The undertaking shall in making its request, specify the area in which it envisages deploying elements of high-speed electronic communications networks: Provided that within fourteen days from the date of receipt of the written request, network operators shall provide the requested information under proportionate, non-discriminatory and transparent terms. (3) The network operator may refuse the request made under sub-article (1) if: (a) it had made the requested information publicly available in electronic format; or (b) access to such information is ensured through the Single Information Point. (4) The network operator shall make the requested minimum information referred to in sub-article (1) available through the Single Information Point. (5) If on the lapse of the fourteen days period referred to in Transparency concerning civil works. Added by: XVIII. 2016.18. 16 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) sub-article (2), the information requested in accordance with the provisions of this article is not provided, then an aggrieved party may on the lapse of the aforesaid fourteen days, refer a dispute it may have in connection with the rights and obligations under this article, to the Dispute Resolution Board which shall in determining any dispute referred to it in accordance with this article, taking full account of the principle of proportionality, issue a binding decision to resolve the dispute raised, including the setting of fair and nondiscriminatory terms and conditions and charges where appropriate: Provided that the Board shall resolve any dispute referred to it in accordance with this article within the shortest possible time frame and in any case within two months from the date of the receipt of the complete request except in exceptional circumstances in accordance with article 32, without prejudice to the possibility of any party to refer the case to court. (6) The competent authority for permit granting following consultation in writing with the competent utility regulator or regulators as the case may be and with any public sector body or bodies as it may consider necessary, provide for exemptions from the obligations in this article for civil works of insignificant value or in the case of critical national infrastructure. In doing so it shall give its reasons in writing and shall before taking a final decision, give any interested parties the opportunity to make any written submissions on the draft exemptions within such reasonable time as it may establish. Permit-granting procedure. Added by: XVIII. 2016.18. 18. (1) All relevant information concerning the conditions and procedures applicable for granting permits for civil works needed with a view to deploying elements of high-speed electronic communications networks, including any information concerning exemptions applicable to such elements as regards some or all permits required under national law, shall be available through the Single Information Point. (2) An undertaking may by electronic means through the Single Information Point, submit applications for permits required for civil works which are needed with a view to deploying elements of high-speed electronic communications networks. (3) The competent authority for permit granting shall grant or refuse a permit within four months from the date of the receipt of a complete permit request, without prejudice to other specific deadlines or obligations laid down for the proper conduct of the procedure which are applicable to the permit granting procedure in accordance with national or European Union law or of dispute resolution or litigation proceedings however so described: Provided that any refusal shall be duly justified on the basis of objective, transparent, non-discriminatory and proportionate criteria: Provided further that exceptionally in duly justified cases, the deadline may be extended, which extension shall be the shortest possible in order to grant or refuse the permit. UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. 17 (4) An undertaking which has suffered damages as a result of non-compliance with deadlines under this article has the right to seek compensation in accordance with the applicable national legislation. 19. (1) The functions of the Single Information Point under this Act shall be performed by the competent infrastructure regulator. Single Information Point. Added by: XVIII. 2016.18. (2) Any person who, in accordance with this Act, is required to provide any information however so described, shall ensure that such information is provided to the Single Information Point in a timely manner and in accordance with any time frames established in accordance with this Act, or in the absence of such time frames within such time frames as the Single Information Point may reasonably establish. (3) Any person who acts in breach of any requirement under this Part in so far as it relates to the provision of any information to the Single Information Point shall be liable to an administrative fine not exceeding ten thousand euro (€10,000) and, or to a daily administrative fine not exceeding five hundred euro (€500). 20. (1) Where applicable any person or body who grants an exemption in accordance with the provisions of this Part, shall forthwith in writing inform the Utilities Committee of the granting of such an exemption and where applicable any public sector body. (2) The Utilities Committee shall notify the European Commission of any exemptions granted in accordance with the provisions of this Act. 21. In the event of conflict the provisions of the Electronic Communications (Regulation) Act and of any regulations listed under the Third Schedule shall prevail over any of the provisions of this Part: Provided that the Minister responsible for electronic communications may, from time to time by notice in the Gazette, amend the list of regulations stated in the aforesaid Schedule. PART IV Utilities Services Advisory Committee 22. (1) There shall be a body to be known as the Utilities Services Advisory Committee, which body shall be appointed by the Minister responsible for infrastructure for a term, which may be renewed, of not less than one year and not more than three years, which body shall be composed of: (a) a chairman chosen by the Minister responsible for infrastructure from among persons with expertise of infrastructure utility sharing; (b) a representative of each utility regulator appointed by the respective utility regulator as may from time to time be listed in the Second Schedule; Notification of Commission when granting exemptions. Added by: XVIII. 2016.18. Provisions of the Electronic Communi-cations (Regulation) Act, etc., to prevail. Added by: XVIII. 2016.18. Cap. 399. Added by: LII. 2021.8. Establishment and role of the Utilities Services Advisory Committee. Added by: XVIII. 2016.18. 18 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) (c) a representative from any other government body that the Minister responsible for infrastructure may consider as being relevant; (d) at least one person with proven expertise in utility infrastructure sharing. (2) The Utilities Committee shall perform any function that it m a y b e r e q u i r e d t o u n d e r t a k e in accorda nc e with this A ct, including: (a) the making of guidelines on any aspect regulated by this Act in so far as such guidelines relate to utility infrastructure access and, or the determination of any disputes related thereto including but not limited to guidelines: (i) on the criteria for refusal of access to physical infrastructure; (ii) on the format of information requirements for requests to access a utility infrastructure; (iii) on the format of the provision of information on the physical infrastructure of a network operator to the Single Information Point; (iv) on the minimum information, if any, to be provided because of the security of the networks or their integrity, or because of national security, public health or safety, confidentiality or commercially sensitive information; (v) to assist any adjudicative or regulatory body in determining any disputes however so described as may be referred to that body for determination under this Act; (b) advising on the making of rules on the apportioning of the costs related to the coordination of civil works; (c) advising on the making of rules with regard to infrastructure access charges and, or technical aspects in relation to such infrastructure access; (d) where applicable dealing with requests for exemptions made under this Act; and (e) such other tasks as the Minister for infrastructure in line with the purposes of this Act may assign to it. (3) Nothing in this article shall be construed as precluding any public sector body from the making of any guidelines or rules however so described with respect to any matters referred to in subarticle (2) in so far as such guidelines or rules relate to the networks or services regulated by the public sector body concerned: Provided that such guidelines or rules shall, once issued, be communicated to any such other public sector bodies which the issuing public sector body considers has an interest in knowing about the issue of such guidelines or rules in that these may impact the regulatory work of such other public sector bodies. UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. PART V Utilities Networks Dispute Resolution Board 19 Added by: XVIII. 2016.18. Re-numbered by: LII. 2021.8. 23. There shall be a dispute resolution board to be known as the Utilities Networks Dispute Resolution Board which Board shall exercise and perform the functions assigned to it by this Act and by any other law. Appointment of the Utilities Networks Dispute Resolution Board. Added by: XVIII. 2016.18. 24. (1) The Dispute Resolution Board shall be composed of a President, who shall be a judge or an ex-judge or a magistrate or an exmagistrate appointed by the President of Malta acting on the advice of the Prime Minister, and two members selected by the President of the Board from a panel of ordinary members: Composition of the Utilities Networks Dispute Resolution Board. Added by: XVIII. 2016.18. Provided that if the President is an ex-judge or an exmagistrate his appointment shall be for a term of five years and he shall vacate his office at the expiration of the term of the said appointment. (2) There shall be a panel of six ordinary members, all with at least ten years relevant experience, appointed by the President of Malta acting on the advice of the Prime Minister, from amongst persons having relevant qualifications in any one or more of the fields of expertise related to the matters regulated by this Act or th a t m a y f r om to ti m e t o t im e b e referred to the Board f or resolution. (3) In selecting the two ordinary members to sit on the Board under sub-article (1), the President shall take due account of the nature of the case and the market concerned. (4) The ordinary members of the Board shall be appointed for a term of five years which term of office may be renewed for one other term of up to five years. (5) The ordinary members of the Dispute Resolution Board may resign their office by a letter addressed to the President of Malta. The resignation shall take effect when the letter signifying the resignation is received by the President of Malta or by any person authorized by him. (6) An ordinary member of the Dispute Resolution Board may not be removed from office except by the President of Malta acting on the advice of the Prime Minister on the ground of proved inability to perform the functions of his office whether arising from infirmity of body or mind or any other cause, or proved misbehaviour. (7) Notice of all appointments to the Dispute Resolution Board and of all other changes in its membership shall be published in the Gazette. (8) The Dispute Resolution Board shall be independent from all parties to the dispute in the performance of its functions, and the members thereof in the exercise of their functions shall act on their own individual judgment and shall not be subject to the direction or control of any person or authority. 20 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) (9) The ordinary members of the Dispute Resolution Board shall not be precluded from the exercise of their respective professions. (10) The ordinary members of the Dispute Resolution Board shall receive such remuneration established in accordance with the Fourth Schedule, which remuneration shall not be altered during the tenure of their appointment to their disadvantage: Provided that the said Schedule may from time to time be varied by the Prime Minister: Provided further that any such remuneration shall be paid out of the Consolidated Fund without the necessity of any further appropriation. (11) A person shall not be qualified to be appointed or remain an ordinary member of the Dispute Resolution Board if: (a) he has been declared an undischarged bankrupt; or (b) he has been sentenced to imprisonment for six months or more by any court; or (c) he has been found guilty of any offence against this Act, any law relating to the regulation of any utility service or any regulations made under this Act or any such laws; or (d) he is a Member of the House of Representatives or of the European Parliament or of a Local Council. (12) An ordinary member of the Dispute Resolution Board shall, before the commencement of any case, declare any interest he may have in the proceedings and the President shall, where he considers that such interest may prejudice the independence of the member concerned, appoint another member from the panel. (13) Where proceedings have commenced and no final decision has yet been delivered and the member has ceased to be a member thereof or for any other reason is unable to perform the functions of his office, the President may elect to appoint another member from the panel in his stead, and should it be strictly necessary for the proper determination of the dispute recommence proceedings, or continue to hear the dispute with only one ordinary member: Provided that where the term of appointment has expired and the ordinary member has not been reappointed, the ordinary member shall continue to hear the dispute until it is concluded. (14) The President where he is an ex-judge or ex-magistrate and the ordinary members of the Dispute Resolution Board, shall, during their term of office, act with integrity and not engage in any activity which would harm the proper administration of justice or which, due to knowledge gained from business secrets or other confidential information during the tenure of their office, would give rise to conflict of interest and harm the interests of any parties to the proceedings before the Board. Any person who acts in contravention of this sub-article shall be guilty of an offence against this Act and shall on conviction be liable to a fine (multa) of not less than five thousand euro (€5,000) and not more than UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) [CAP. 81. 21 twenty fifty thousand euro (€25,000), and the court may, in addition, award the punishment of temporary or perpetual general interdiction from occupying any public office. 25. (1) Upon taking cognizance of a dispute, the Dispute Resolution Board shall notify the parties concerned of the matter under dispute, allowing them such reasonable time as may be determined by the Board to produce relevant information and to make their representations. (2) The Dispute Resolution Board shall in all instances endeavour to determine any dispute referred to it within the shortest possible time, and in any case in accordance with the specific time frames established under this Act or under any other applicable law under which it may be empowered to determine disputes: Provided that it shall be at the discretion of the Board on how it shall conduct proceedings before it. In particular the Board may, if it considers it appropriate in the circumstances, determine a d i s p u t e o n l y o n t h e b a s i s o f su c h w r i t t e n s u b m i ss i o n s a n d documentation as it may require, and it shall be at its discretion to determine whether oral hearings and, or on site visits are necessary: Provided further that the Board shall in all instances abide with the principles of natural justice. (3) The Dispute Resolution Board shall, after examining the facts and any representations submitted to it and such other information as it may require, determine the dispute. (4) The Dispute Resolution Board may at its discretion whether of its own initiative or following a request of a party to the dispute if it considers such a request as being reasonable given the specific circumstances of the dispute, assist the parties in arriving at an amicable settlement on all or some of the issues in dispute before proceeding or continuing with the determination of the dispute: Provided that in doing so the Board shall in all instances factor the need to settle the dispute in the shortest time possible and any negative impact that a party may suffer if there is a delay in resolving the dispute: Provided further that an aggrieved party shall before making a dispute under this Part, where feasible, endeavour to settle any such dispute by seeking the mediation of the competent utility or infrastructure regulator or regulators as the case may be. (5) A party in filing a dispute before the Disputes Resolution Board shall ensure that the application submitting the dispute to the Board contains the following: (a) a clear and correct statement of the subject-matter and the cause or causes giving rise to the dispute; (b) a clear and detailed statement of the facts of which the party filing the dispute may be aware of; (c) a copy of all the relevant documentation in support of Conduct of proceedings and determination of disputes. Added by: XVIII. 2016.18. Amended by: LII. 2021.9. 22 CAP. 81.] UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) the dispute being made; and (d) the remedy being requested …