The guidelines found in Chapter 3 apply to all interested parties applying for registration to Act as a Technical Administrator whose main role is that of carrying out specific functions in relation to the operation and functioning of an Innovative Technology Arrangement (ITA). The Technical Administrator must possess the necessary system knowledge and expertise needed to comply with the duties set out in the ITAS Act and regulations issued by the Authority. A Technical Administrator may be a legal organisation or an individual resident in a European Union Member State (or EEA State) and every applicant that is not considered to be ordinarily resident in Malta, shall appoint a Resident Agent to act on his behalf. Other essential requisites which attach to the role of Technical Administrator include, that they are of good conduct and that they successfully undertake the fit and proper test.

Any applicant interested in taking on the role of Technical Administrator shall apply to the Authority for their suitability to be registered. Once all the proper requisites are satisfied and documents submitted, the authority will complete the registration which will be valid for a period of 2 years. The Technical Administrator is required to display such certificate of registration on its website (if any) as well as on any ITA with which the Technical Administrator holds an engagement.

As part of the application process for ITA certification, the Technical Administrators shall submit a declaration which must demonstrate to the Authority the ability of the ITA to satisfy a number of requisites and standards. In this regard, the Technical Administrator is required to intervene in an effective manner to ensure any ‘critical matters’ are satisfactorily addressed. Such matters include a material cause of loss to a user or a material breach of law. In such instances the Technical Administrator has the responsibility of informing the Authority immediately of any occurrences, even though the Authority reserves the right to issue ITA certification on the same basis, clearly stating that the requirements are not being met by the Applicant. The Technical Administrator shall also adhere to certain ongoing obligations of informing the Authority in relation to a number of matters vis-a-vis the ITA.

The guidelines also clarify that whenever there may be any material changes to either a registered Technical Administrator or a certified ITA, then such individual or legal organisation holding the certificate of registration as a Technical Administrator, shall inform the authority of such changes in order for it to be able to review and approve of such changes. The nature of such material changes would ultimately determine whether the applicant would need the prior approval of the Authority or a notification to the Authorities of the particular change (within 30 days).

The Technical Administrator will be appointed by the ITA from a list of registered Technical Administrators published by the Authority, known as the Register of Recognitions. The Technical Administrator and the ITA Applicant should not be the same person. On the other hand, the Technical Administrator may be an employee of the ITA. Also, at any point in time, an ITA may appoint one or more Technical Administrators. The Authority requires an ITA to appoint a registered Technical Administrator to be in office at all times, however in case of unavailability, all duties and obligations must be delegated to an adequate temporary replacement possessing the necessary system knowledge, skills and ability.

Provisions of Innovative Technology Arrangements and Innovative Services in or from Malta

The Authority is also providing additional guidance on the definition of ‘in or from Malta’ as applicable to all Innovative Technology Arrangements (ITAs) and Innovative Technology Service Providers (ITSPs) that wish to obtain recognition from the Authority.

With regards to such definition, an ITA Applicant must demonstrate to the Authority that the ITA has a reasonable element of substance in connection with Malta. This in itself brings with it further necessary requisites for satisfaction.

For more information on the Technical Administrator Guidelines and any other related areas please contact Dr Ian Gauci on igauci@gtgadvocates.com and Dr Sean Xerri de Caro on sxerridecaro@afilexion.com.

Disclaimer: This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.