ACT No. II of 2008 AN ACT to amend the Consumer Affairs Act and to make amendments to other laws BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives. In this present Parliament

I assent.

E DWARD F ENECH A DAMI

(L.S.)

President

29th January, 2008

ACT No. II of 2008

AN ACT to amend the Consumer Affairs Act and to make

amendments to other laws

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives. In this present Parliament

assembled, and by the authority of the same, as follows>-

(1) The short title of this Act is the Consumer Affairs Short title and

commencement.

(Amendment) Act, 2008.

(2) Unless otherwise provided in its various parts, this Act

shall be deemed to have come into force on the 12 th December, 2007.

Part I

AMENDMENT OF THE CONSUMER AFFAIRS ACT

This Part amends and shall be read and construed as one with Amendment of the

Consumer Affairs

the Consumer Affairs Act, hereinafter referred to as “the principal Act”. Act.

In the long title to the principal Act, immediately after the Amendment of long

words “Consumer Claims Tribunals” there shall be added the words title

Act.

“and of the Consumer Affairs Appeals Board”.

Amendment of

(1) The “ARRANGEMENT OF ACT” of the principal Act

Arrangment of Act.

shall be substituted as follows>

“ARRANGEMENT OF ACT

Articles

PART I.

Preliminary

1-2

PART II.

Director of Consumer Affairs and

the Consumer Affairs Council

3-15

PART III.

Consumer Claims Tribunal

16-27

PART IV.

Consumer associations

28-42

PART V.

Declaration of principles

PART VI.

Unfair contract terms

44-47C

PART VII.

Unfair commercial practices and

illicit schemes

Title I - Unfair commercial

practices

48-51J

Title II - Illicit schemes

52-55A

PART VIII.

Liability for defective products

56-71A

PART IX.

Sale of goods to consumers

72-93

PART X.

Compliance orders

94-101

PART XI.

Enforcement

102-110

PART XII.

Consumer Affairs Appeals

Board

110A-110G

PART XIII.

Miscellaneous

First Schedule

Commercial Practices which are

ipso jure unfair

Second schedule Administrative fines ”.

(2) All references to the Parts as they were prior to their re-

numbering in any legislation shall, as from the 12 th December 2007, be

construed as references to the Parts as now re-numbered.

For the words “consumer protection co-operation Regulation” General amendment

of articles 2, 3, 102

wherever they appear in articles 2, 3, 102 and 104A of the principal and 104A of the

Act, there shall be substituted the words “Consumer Protection Co- principal Act.

operation Regulation”.

Article 2 of the principal Act shall be amended as follows>

Amendment of

article 2 of the

principal Act.

(a) immediately after the definition “advertisement” there

shall be added the following new definition>

“ “Appeals Board” means the Consumer Affairs Appeals

Board established under Part XII of this Act<”<

(b) immediately after paragraph (iii) in the definition

“consumer”, there shall be added the following new proviso>

“Provided that for the purposes of Title I of Part VII of

this Act, the definition of “consumer” shall only consist of

paragraph (i) above,”<

(c)

the definition “EEA State” shall be deleted<

(d) immediately after the definition “goods” there shall be

added the following new definition>

“ “Member State” means a State which is a contracting

party to the agreement on the European Economic Area signed

at Oporto on the 2 nd May, 1992 as amended by the Protocol

signed at Brussels on the 17 th March, 1993 and as amended

by any subsequent acts<”

(e) for the definition “qualifying body” there shall be

substituted the following>

“qualified entity” means

(a)

a registered consumer association,

(b) an independent public body, having a

legitimate interest in ensuring the protection of the

collective interests of consumers in Malta or in any other

Member State in which such bodies exist,

(c) a voluntary organisation in Malta as the

Minister may, after consulting the Council, designate

by notice in the Gazette,

(d) a voluntary organisation in any other Member

State whose purpose is to protect the interests referred

to in paragraph (b) of this definition in accordance with

the criteria laid down by their national law,

(e) any qualified entity from a Member State

included in the list of qualified entities as published in

the Official Journal of the European Union<”< and

(f) paragraph (ii) in the definition “trader” shall

be re-numbered as paragraph (iii), and there shall be

added a new paragraph (ii) as follows>

“(ii) any public body, whether corporate or

unincorporate, which provides goods or services

to consumers for a fee< and ”.

Paragraph (d) in subarticle (7) of article 4 of the principal Act

shall be amended as follows>

(a) in the English text only, after the words “convicted of”

there shall be added the words “or found guilty of”< and

(b) for sub-paragraph (v) thereof, there shall be substitued

the following>

“(v) any offence or infringement contemplated in this

Act, regulations made thereunder, the Customs Ordinance,

the Trade Descriptions Act, the Doorstep Contracts Act, the

Metrology Act or any other law repealed by any of the said

Acts or Ordinances or any law replacing the same.”

Subarticle (3) of article 7 of the principal Act shall be

substituted by the following>

“(3) Regulations made under this article may provide that

any person who contravenes any provision of the regulations, shall

(a) be guilty of an offence punishable on conviction

by a fine (multa) not exceeding twenty thousand liri

(€46587.47), or

(b) be guilty of an infringement punishable by an

administrative fine not exceeding twenty thousand liri

(€46587.47)

and in any case, different penalties may be prescribed for different

offences and infringements.”

Immediately after article 7 of the principal Act, there shall be Addition of new

article 7A to the

added the following new article 7A>

principal Act.

7A. The Director may from time to time, after

consultation with the Consumer Affairs Council, issue

guidelines to provide general guidance on the interpretation

of the provisions of this Act.”

Article 10 of the principal Act shall be amended as follows> Amendment to

article 10 of the

principal Act.

(a) the present provision shall be renumbered as subarticle

(1) thereof<

(b) in subarticle (1) thereof as re-numbered, immediately

after the words “Where an offence” there shall be added the words

“or an infringement”, and for the words “the offence” wherever

they appear in the subarticle, there shall be substituted the words

“the offence or the infringement”< and

(c) immediately after subarticle (i) thereof as re-numbered,

there shall be added the following new subarticle>

“(2) Where an offence or an infringement of any

provision of this Act or any regulation made thereunder is

committed by a body corporate and is proved to have been

committed with the consent or involvement of or to be

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 offence or

infringement.”

Article 12 of the principal Act shall be amended as follows> Amendment of

article 12 of the

principal Act.

(a) for subarticle (1) thereof, there shall be substituted the

following>

“(1) Upon the conclusion of an investigation, where it

appears to the Director that a trader has engaged in conduct

that constitutes a breach of, or failure to comply with, any

regulations made under article 7 or under the provisions of

article 9, or a breach or a failure to comply with the provisions

of articles 44 to 47, 51 to 53 or with the provisions of the

Doorstep Contracts Act, the Director may, at his discretion,

instead of issuing a decision finding an infringement or

instituting proceedings against the trader and, or issuing a

compliance order, caution the trader and seek an undertaking

in writing from the trader that he shall refrain from the conduct

or practice specified in the undertaking for such period not

exceeding three years, as may be specified by the Director.

The undertaking shall contain such other terms and conditions

as may be agreed, including, where circumstances so warrant,

the provision of compensation for aggrieved consumers.”<

(b) subarticle (3) thereof shall be deleted<

(c) subarticles (4) and (5) thereof shall be renumbered as

subarticles (3) and (4) respectively< and

(d) for subarticle (4) thereof as renumbered there shall be

substituted the following>

“(4) A trader who acts in contravention of an

undertaking made in accordance with this article shall, without

prejudice to any liability arising under this or any other law,

be guilty of an infringement against this article, and shall in

any case remain bound by the undertaking for the remaining

period of its term.”

Immediately after article 12 of the principal Act, there shall

be added the following new article 12A>

In order to ensure the observance of the

investigations. provisions of this Act and any regulations made thereunder,

the Director shall have power to carry out investigations of

his own motion or upon a reasonable allegation in writing of

a breach of the provisions of this Act and any regulations

made thereunder.”

Article 13 of the principal Act shall be amended as follows>

(a) for the marginal note thereof, there shall be substituted

the words>

“Criminal proceedings.”< and

(b) for subarticle (1) thereof, there shall be substituted the

following>

“(1) When investigations in terms of article 12A relate

to an offence under this Act or any regulations made

thereunder, criminal proceedings may only be instituted at

the instance of the Director.”

Article 14 of the principal Act shall be amended as follows> Amendment of

article 14 of the

principal Act.

(a) in subarticle (1) therein, immediately after the words

“convicted for an offence against” there shall be added the words

“a provision of the Act or against”< and

(b) in subarticle (1) paragraph (b) thereof, for the words

“one hundred liri” there shall be substituted the words “five hundred

euros”.

Immediately after article 14 of the principal Act, there shall Addition of new

articles 14A and

be added the following two new articles 14A and 14B>

14B to the principal

Act.

14A. (1) Upon commencing investigations in terms

of article 12A concerning an alleged infringement of a

proceedings.

provision of this Act or of any regulations made thereunder,

the Director shall write to the person investigated informing

him of the nature of the alleged infringement and granting

the person concerned a period of not less than fifteen days as

the Director may determine to be appropriate in the

circumstances during which period the person concerned may

make his submissions to the Director.

(2) Where, upon the conclusion of an

investigation, having considered the submissions, if any, made

to him under subarticle (1), it results to the Director that a

breach of a provision of this Act or of any regulations made

thereunder has occurred, he shall issue a decision finding an

infringement, giving his reasons therefor>

Provided that, the Director may, instead of a decision

finding an infringement, seek an undertaking from the trader

in terms of article 12.

(3) A copy of the decision issued under subarticle

(2) shall be served upon the person against whom the decision

is taken.

14B. (1) Notwithstanding the provisions of article

14A, in cases of urgency due to the risk of immediate and

serious harm to the collective interests of consumers, the

Director may, before the conclusion of an investigation, on

the basis of a prima facie finding of an infringement, order

interim measures to remedy the situation in advance of

reaching a final decision, giving his reasons therefor>

Provided that the person against whom such measures

are contemplated, shall be given a reasonable opportunity to

state his views and propose any remedies.

(2) Measures taken under subarticle (1) shall have

immediate effect and shall remain in force for the period of

time stipulated therein unless they are previously revoked by

the Director or unless the matter under investigation has been

determined by the Director before the said period, and may

be renewed in so far this is necessary and appropriate.

(3) Orders prescribing interim measures in terms

of this article shall be served upon the person under

investigation.

(4) Any person who acts contrary to an interim

measure issued by the Director, shall be guilty of an

infringement against this article.

(5) A person upon whom an interim measure has

been served, may within fifteen days of the notification of

the measure, appeal from the said measure by application

before the Appeals Board>

Provided that such appeal shall not have the effect of

suspending the interim measure.

(6) The application of appeal shall be notified to

the Director who shall not later than fifteen days from such

notification file his reply thereto.

(7) The Appeals Board may confirm or revoke

the interim measure or change it on any terms or conditions

the Board may consider appropriate.”

Article 15 of the principal Act shall be amended as follows>

(a) in subarticle (1) thereof, for the words “articles 10, 12,

13 and 14 shall apply to offences” there shall be substituted the

words “articles 10, 12, 12A, 13, 14, 14A and 14B and Parts X, XI

and XII shall apply to offences and, or infringements”< and

(b) for subarticle (2) thereof, there shall be substituted the

following>

“(2) The provisions of articles 10, 12, 12A, 13, 14,

14A and 14B and Parts X, XI and XII shall apply to offences

and, or infringements under the laws referred to in article

111.”

For paragraph (d) of subarticle (3) of article 17 of the principal Amendment of

article 17 of the

Act, there shall be substituted the following>

principal Act.

“(d) has been convicted of any of the offences or found

guilty of any of the infringements referred to in sub-paragraph (v)

of article 4(7)(d).”

Article 22 of the principal Act shall be amended as follows> Amendment of

article 22 of the

principal Act.

(a) in subarticle (1) thereof, the words “eighteen working

days” shall be substituted by the words “twenty days”<

(b) for subarticle (2) thereof, there shall be substituted the

following>

“(2) Independently of the amount of the claim an

appeal shall always lie in the following cases>

(a) on any matter relating to the jurisdiction of

the Tribunal< or

(b) on any question of prescription< or

(c) where the tribunal has acted contrary to the

rules of natural justice and such action has prejudiced

the rights of the appellant.”<

(c) for subarticle (3) thereof, there shall be substituted the

following>

“(3) A right of appeal on all grounds shall also lie where

the amount of the claim in dispute, calculated in terms of

article 20 (1), exceeds one thousand two hundred euros.”<

(d) for subarticle (4) thereof, there shall be substituted the

following>

“(4) Where the Court of Appeal finds that the grounds

for appeal are justified it shall quash the decision of the

Tribunal and shall itself determine the original claim and any

counter-claim in accordance with the provisions of article 21.”<

(e) immediately after subarticle (4) thereof, there shall be

added the following new subarticles>

“(5) The Court of Appeal may, if it considers the

application frivolous or vexatious, dismiss the appeal and

order the appellant to pay a penalty which shall not be less

than two hundred and thirty euros and not exceeding one

thousand one hundred and seventy euros.

(6) The amount of the penalty shall be due and owing

to the Government as a civil debt, liquidated and certain, and

may be collected by the Registrar. The order referred to in

subarticle (5) shall constitute an executive title within the

meaning and for the purposes of Title VII of Book Second of

the Code of Organization and Civil Procedure.

(7) The Minister responsible for justice may be

regulations under this subarticle establish the fees payable in

the registry of the courts in relation to the filing of judicial

acts in connection with an appeal under this article>

Provided that where no such fees have been so

established the fees contained in Schedule A to the Code of

Organization and Civil Procedure shall apply.

(8) The board established under article 29 of the Code

of Organization and Civil Procedure may make rules

governing appeals under this article.”.

Immediately after article 25 of the principal Act, there shall

be added the following new article>

Any person who fails to comply with a decision

comply with

of the Tribunal, or of the Court of Appeal, despite the lapse

of more than three months from when that decision became

final, shall be guilty of an offence against this Act< and shall

be liable on conviction to a fine (multa) of not more than five

hundred euros>

Provided that any prosecution for an offence under this

article shall be without prejudice to the accused’s obligation

to comply with the decision of the Tribunal or the Court of

Appeal.”.

20. In subarticle (2) of article 36 of the principal Act, for the Amendment of

article 36 of the

words “in accordance with article 7(1)(c)”, there shall be substituted principal Act.

the words “in accordance with article 7(1)(b)”.

21. In paragraph (g) of article 41 of the principal Act, for the Amendment of

article 41 of the

words “under article 7(1)(c)”, there shall be substituted the words “under principal Act.

article 7(1)(b)”.

22. For the title to Part VI of the principal Act, there shall be Substitution of title

to Part VI of the

substituted the new title “Unfair contract terms”.

principal Act.

23. In article 45 of the principal Act, immediately at the end of Amendment of

article 45 of the

subarticle (2) thereof, there shall be added the following new proviso> principal Act.

“Provided that, in so far as it is in plain intelligible language,

the assessment of fairness of a term shall not relate –

(a) to the definition of the main subject matter of the

contract, or

(b) to the adequacy of the price or remuneration, as

against the goods or services supplied in exchange.”

24. Immediately after article 47 of the principal Act, there shall Addition of new

articles 47A to 47C

be added the following new articles 47A, 47B and 47C>

to the principal Act.

The provisions of this Part shall apply

notwithstanding any term in a consumer contract which

applies or purports to apply the law of a non-Member State,

if the contract has a close connection with the territory of any

non-Member

Member State.

The provisions of this Part shall prevail over

Applicability

anything to the contrary contained in the Civil Code and the

Commercial Code.

The purpose of this Part is to implement the

provisions of Council Directive 93#13#EEC of 5 April 1993

on unfair terms in consumer contracts and the provisions of

this Part shall be applied and interpreted accordingly.”

25. Part VII of the principal Act entitled “Liability for defective

products”, Part VIII of the principal Act entitled “Sale of goods to

consumers”, Part IX of the principal Act entitled “Compliance orders”,

Part X of the principal Act entitled “Enforcement” and Part XI of the

principal Act entitled “Miscellaneous” shall be re-numbered as Parts

VIII, IX, X, XI and XIII respectively and any references to these Parts

as they were prior to their re-numbering in any legislation shall, as from

the 12 th December 2007 be construed as references to the Parts as re-

numbered.

26. Immediately after the new article 47C of the principal Act,

there shall be added the following new heading and sub-heading>

“PART VII

Unfair commercial practices and illicit schemes

Title I

Unfair Commercial Practices”.

Articles 48, 49, 50 and 51 of the principal Act shall be deleted.

27.

28. Immediately after the deleted article 51 of the principal Act,

there shall be added the following new articles 51A to 51J>

to the principal Act.

“Interpretation.

In this Title, unless the context otherwise

requires>

“administrative provision” means any provision in

a measure issued by any government Ministry or

department, local authority or any other public body

which is binding on the person to whom it is addressed,

including any order, licence, permit, warrant or decision<

“code of conduct” means an agreement or set of

rules not imposed by law or administrative provision

which defines the behaviour of traders who undertake

to be bound by the code in relation to one or more

particular commercial practices or business sectors<

“code owner” means any entity, including a trader

or group of traders, which is responsible for the

formulation and revision of a code of conduct and, or

for monitoring compliance with the code by those who

have undertaken to be bound by it<

“commercial practice” means any act, omission,

course of conduct or representation, commercial

communication including advertising and marketing, by

a trader, directly connected with the promotion, sale or

supply of a product to consumers< whether it takes place

before, during or after a commercial transaction in

relation to the product<

“invitation to purchase” means a commercial

communication which indicates characteristics of the

product and the price in a way appropriate to the means

of commercial communication used, which is such as to

induce a consumer to make a purchase<

“product” means any good or service including

immovable property, rights and obligations<

“professional diligence” means the standard of skill

and care which a trader may reasonably be expected to

exercise towards consumers, commensurate with honest

market practice and, or the general principle of good

faith, in the trader’s field of activity<

“regulated profession and regulated professional

activity” has the same meaning assigned to it in the

Mutual Recognition of Qualifications Act.

“to materially distort the economic behaviour of a

consumer” means using a commercial practice to

appreciably impair the consumer’s ability to make an

informed decision, thereby causing the consumer to take

a transactional decision that he would not have taken

otherwise<

“transactional decision” means any decision taken

by a consumer concerning whether, how and on what

terms –

(i) to purchase a product, or

(ii) to make payment in whole or in part for

a product, or

(iii) to retain or dispose of a product, or

(iv) to exercise a contractual right in relation

to the product, whether the consumer decides to

act or to refrain from acting<

“undue influence’ means exploiting a position of

power in relation to the consumer so as to apply pressure

even without using or threatening to use physical force,

in a way which significantly limits the consumer’s ability

to make an informed decision.

(1)

Unfair commercial practices shall be

prohibited.

(2) A commercial practice shall be unfair if>

(a) it is contrary to the requirements of

professional diligence, and

(b) it materially distorts or is likely to materially

distort the economic behaviour with regard to the

product, of the average consumer whom it reaches or to

whom it is addressed, or of the average member of the

group when a commercial practice is directed to a

particular group of consumers<

Provided that, other than the advertising practice

of making exaggerated statements or statements which

are not meant to be taken literally, commercial practices

which are likely to materially distort the economic

behaviour only of a clearly identifiable group of

consumers who are particularly vulnerable to the practice

or the underlying product because of their mental or

physical infirmity, age or credulity in a way which the

trader could reasonably be expected to foresee, shall be

assessed from the perspective of the average member of

that group.

(3) In particular, a commercial practice shall be

unfair if it is misleading in terms of articles 51C and 51D, or

aggressive in terms of article 51E.

(4) Those commercial practices listed in the First

Schedule shall in all circumstances be regarded as unfair.

A commercial practice shall be regarded as

misleading if>

(a)

it contains false information< or

(b) in any way, including its overall presentation,

deceives or is likely to deceive the average consumer,

even if the information is factually correct, in relation to

one or more of the following elements, and in either case

causes or is likely to cause him to take a transactional

decision that he would not have taken otherwise>

(i) the existence or nature of the product<

(ii) the main characteristics of the product,

such as its availability, benefits, risks, execution,

composition, accessories, after-sale customer

assistance and complaint handling, method and date

of manufacture or provision, delivery, fitness for

purpose, usage, quantity, specification,

geographical or commercial origin or the results to

be expected from its use, or the results and material

features of tests or checks carried out on the product<

(iii) the extent of the trader’s commitments,

the motives for the commercial practice and the

nature of the sales process, any statement or symbol

in relation to direct or indirect sponsorship or

approval of the trader or the product<

(iv) the price or the manner in which the

(v) the need for a service, part, replacement

or repair<

(vi) the nature, attributes and rights of the

trader or his agent, such as his identity and assets,

his qualifications, status, approval, affiliation or

connection and ownership of industrial, commercial

or intellectual property rights or his awards and

distinctions<

(vii) the consumer’s rights, including the

right to repair, replacement or reimbursement as

provided in Part IX of the Act, or the risks he may

face< or

(c) in its factual context, taking account of all its

features and circumstances, it causes or is likely to cause

the average consumer to take a transactional decision

that he would not have taken otherwise, and it involves>

(i) any marketing of a product, including

comparative advertising, which creates confusion

with any products, trade marks, trade names or other

distinguishing marks of a competitor< or

(ii) non-compliance by the trader with

commitments contained in codes of conduct by

which the trader has undertaken to be bound, where

(a) the commitment is not aspirational

but is firm and is capable of being verified,

and

(b) the trader indicates in a commercial

practice that he is bound by the code.

(1)

A commercial practice shall be regarded as

misleading if>

(a) in its factual context, taking account of all its

features and circumstances and the limitations of the

communication medium, it omits material information

that the average consumer needs, according to the

context, to take an informed transactional decision and

thereby causes or is likely to cause the average consumer

to take a transactional decision that he would not have

taken otherwise<

or

(b) taking account of the matters described in

paragraph (a), the trader hides, or provides in an unclear,

unintelligible, ambiguous or untimely manner, such

material information as referred to in that paragraph, or

fails to identify the commercial intent of the commercial

practice if not already apparent from the context, and

where, in either case, this causes or is likely to cause the

average consumer to take a transactional decision that

he would not have taken otherwise.

(2) Where the medium used to communicate the

commercial practice imposes limitations of space or time,

these limitations and any measures taken by the trader to make

the information available to consumers by other means shall

be taken into account in deciding whether information has

been omitted.

(3) In the case of an invitation to purchase, the

following information shall be regarded as material, if not

apparent from the context>

(a) the main characteristics of the product, to an

extent appropriate to the medium and the product<

(b) the geographical address and the identity of

the trader, such as his trading name and, where

applicable, the geographical address and the identity of

the trader on whose behalf he is acting<

(c) the price inclusive of taxes, or where the nature

of the product means that the price cannot reasonably

be calculated in advance, the manner in which the price

is calculated, as well as, where appropriate, all additional

freight, delivery or postal charges or, where these charges

cannot reasonably be calculated in advance, the fact that

such additional charges may be payable<

(d) the arrangements for payment, delivery,

performance and the complaint handling policy, if they

depart from the requirements of professional diligence<

(e) for products and transactions involving a right

of withdrawal or cancellation, the existence of such a

right.

(4) Information requirements established by law

in relation to commercial communications including

advertising or marketing shall be regarded as material.

(1) A commercial practice shall be regarded as

aggressive if, in its factual context, taking account of all its

features and circumstances, by harassment, coercion,

including the use of physical force, or undue influence, it

significantly impairs or is likely to significantly impair the

average consumer’s freedom of choice or conduct with regard

to the product and thereby causes him or is likely to cause

him to take a transactional decision that he would not have

taken otherwise.

(2) In determining whether a commercial practice

uses harassment, coercion, including the use of physical force,

or undue influence, account shall be taken of>

(a)

its timing, location, nature or persistence<

(b) the use of threatening or abusive language or

behaviour<

(c) the exploitation by the trader of any specific

misfortune or circumstance of such gravity as to impair

the consumer’s judgement, of which the trader is aware,

to influence the consumer’s decision with regard to the

product<

(d) any onerous or disproportionate non-

contractual barriers imposed by the trader where a

consumer wishes to exercise rights under the contract,

including rights to terminate a contract or to switch to

another product or another trader<

(e) any threat to take any action that cannot legally

be taken.

A person who engages in an unfair commercial

Infringements.

practice in terms of articles 51B, 51C, 51D and 51E, shall be

guilty of an infringement against this Act.

(1) The provisions of this Title shall not

Control by code

preclude the control by code owners of unfair commercial

practices through codes of conduct.

(2) Recourse to code owners for the purpose

of ensuring compliance with such codes of conduct shall not

prejudice any other form of redress available under this Act

or any other law.

The provisions of this Title shall not apply to

any other law relating to the certification and indication of

the standard of fineness of articles of precious metal.

The provisions of this Title shall be without

prejudice to>

(a) any provision under the laws of Malta

regulating contract in particular those governing the

validity, formation or effect thereof<

(b) any rule relating to the health and safety

aspects of products<

(c) any provision under the laws of Malta

implementing a Community Directive or any provision

under Community law regulating specific aspects of

unfair commercial practices, in so far as those specific

aspects are concerned<

(d) any condition of establishment or of an

authorization regime or any deontological code of

conduct or other specific rules governing regulated

professions in order to uphold high standards of integrity

on the part of the professional<

(e) any requirement imposed by any other law,

in the field of financial services and immovable property,

which is more restrictive or prescriptive than the

requirements imposed by the provisions of this Title.

The purpose of this Title is to implement Directive

2005#29#EC of the European Parliament and of the Council

of 11 May 2005 concerning unfair business-to-consumer

commercial practices in the internal market, and the provisions

of this Title shall be applied and interpreted accordingly.”.

29. Immediately after the new article 51J, there shall be added Addition of new

sub-heading to the

the following new sub-heading>

principal Act.

“Title II

Illicit Schemes”.

Deletion of article

30. Article 52 of the principal Act shall be deleted.

52 of the principal

Act.

31. Immediately after the deleted article 52 of the principal Act, Addition of new

article 52A to the

there shall be added the following new article 52A>

principal Act.

“Chain

(1) Any scheme of the type similar to a chain

letter

letter scheme, which is unconnected with the supply of goods

schemes.

or services, that is unfair to the majority of participants in the

scheme, shall be prohibited.

(2) A scheme shall be unfair if>

(i) the financial rewards of the majority of the

participants are dependant on the recruitment of

additional participants< and

(ii) the number of additional participants in the

scheme that must be recruited to produce reasonable

financial rewards to participants in the scheme is not

attainable or is not likely to be attainable by a majority

of the participants in the scheme.

(3) A person who establishes, operates or promotes a

scheme in terms of this article shall be guilty of an

infringement against this article.”

Article 53 of the principal Act shall be amended as follows>

32. (a) in subarticle (1) thereof, for the words “A person who

makes a representation that is false or misleading in a material

particular concerning the profitability or risk or any other material

aspect of any work from home scheme or other similar schemes or

activities however described”, there shall be substituted the words

“Without prejudice to the provisions of Title I of this Part, a person

who makes a representation that is false or misleading to a material

degree concerning the profitability or risk or any other material

aspect of any work from home scheme or any other similar scheme

or activity however described ”, and for the words “shall be guilty

of an offence”, there shall be substituted the words “shall be guilty

of an infringement”< and

(b) in subarticle (2) thereof, for the words “false or

misleading in a material particular, shall be guilty of an offence”,

there shall be substituted the words “false or misleading to a

material degree, shall be guilty of an infringement”.

33. Article 54 of the principal Act shall be deleted.

34. In article 55 of the principal Act, the words “the Civil Code,”

shall be deleted.

35. Immediately after article 55 of the principal Act there shall Addition

article 55A to the

be added the following new article 55A>

principal Act.

“Transitory

(1) The provisions of articles 48 to 53, as they

were prior to the 12 th December, 2007 shall be deemed to

have remained in force for the purpose of any prosecution

commenced in terms thereof prior to the said date.

(2) Where an act in breach of articles 48 to 53 as

they were prior to 12 th December, 2007 happened before the

said date, but no prosecution was commenced by the said

date, the provisions of this Part as in force from the 12 th

December, 2007 shall apply, as if such act happened after the

said date.”

36. In article 56 of the principal Act, for the words “an EEA Amendment of

article 56 of the

State” wherever they appear, there shall be substituted the words “a principal Act.

Member State”.

37. In article 71 of the principal Act, for the words “any EEA Amendment of

article 71 of the

State”, there shall be substituted the words “any Member State”.

principal Act.

38. In the definition of “producer” in subarticle (1) of article 72 Amendment

article 72 of the

of the principal Act, for the word “Malta” there shall be substituted the principal Act.

words “a Member State”.

39. Subarticle (2) of article 85 of the principal Act shall be deleted Amendment of

article 85 of the

and the current subarticle (1) shall be renumbered as the whole article principal Act.

Immedjatament wara l-Ewwel Skeda ;dida ta’ l-Att

prinçipali, g[andha ti]died it-Tieni Skeda ;dida kif ;ejja>

“It-Tieni Skeda

Artikolu 106A (3)

Multi Amministrattivi

1. Meta qed jiddeçiedi#tiddeçiedi l-ammont tal-multi amministrattivi

speçifikati fl-artikolu 106A, id-Direttur g[andu#ha jkun immexxi#ja mill-

kunsiderazzjonijiet li ;ejjin.

2. G[all-ksur ta[t l-artikoli 51F, 52A u 53, l-ammont minimu tal-

multa g[andu jkun elf lira (E2329.37)<

I]da d-Direttur jista’#tista’ meta jkun#tkun qed jiffissa#tiffissa l-multa,

jikkunsidra#tikkunsidra çirkustanzi li jistg[u jwasslu g[al ]ieda jew tnaqqis

fl-ammont ba]iku<

I]da ukoll id-Direttur g[andu#ha jag[mel#tag[mel hekk fuq il-ba]i

ta’ evalwazzjoni kompluta li tikkunsidra ç-çirkustanzi rilevanti kollha.

3. Id-Direttur jista’#tista’ jimponi#timponi multa amministrattiva

og[la minn dik ba]ika fejn hemm çirkustanzi aggravanti, ikkunsidrata l-

gravità u d-dewmien tal-ksur u, jew l-ammont ta’ qlig[ mag[mul, b[ala

ri]ultat tal-ksur, li mhux dovut.

4. Ming[ajr pre;udizzju g[all-;eneralità tar-regola 3 dawn li ;ejjin

g[andhom jkunu f’kull çirkustanza kkunsidrati b[ala çirkustanzi

aggravanti>

-

meta il-ksur huwa prattika kummerçjali mhux ;usta

nklu]a fl-Ewwel Skeda, l-ammont ba]iku ji]died b’somma ta’

mhux anqas minn seba’ mija u [amsin lira (E1747.03) u mhux

aktar minn elfejn lira (E4658.75)<

-

Fil-ka] tat-tieni ksur jew ksur sussegwenti, l-ammont

ba]iku ji]died b’elf lira (E2329.37) g[al kull ksur sussegwenti<

-

fejn il-prattika jew l-iskema li tikkostitwixxi l-ksur hija

l-mezz prinçipali li biha l-kummerçjant#a jmexxi#tmexxi jew

jopera#topera l-kummerç tieg[u#tag[ha, l-ammont ba]iku ji]died

b’somma li mhix anqas minn seba’ mija u [amsin lira (E1747.03) u

mhux aktar minn elfejn lira (E4658.75)<

-

fejn il-prattika jew l-iskema li tikkostiwixxi l-ksur qeg[da

speçifikatament timmira g[all-konsumaturi li huma vulnerabbli, l-

ammont ba]iku ji]died b’elf lira (E2329.37)<

-

fejn il-prattika kummerçjali mhux ;usta hija akkumpanjata

minn xi wie[ed mill-fatturi imsemmija fl-artikolu 51E(2) ta’ l-Att l-

ammont ba]iku ji]died b’somma li mhix anqas min seba’ mija u

[amsin lira (E1747.08) u mhux aktar minn elfejn lira (E4658.75)<

5. L-ammont jista’ jitnaqqas fejn id-Direttur jsib#ssib li hemm

çirkustanzi attenwanti b’mod partikolari>

-

fejn il-persuna kkonçernata tipprovdi evidenza li hu#hi

waqqaf#waqqfet il-prattika kummerçjali mhux ;usta li tikkostitwixxu

l-ksur malli d-Direttur beda#bdiet l-investigazzjonijiet ta[t l-artikolu

10 ta’ l-Att, l-ammont ba]iku jitnaqqas b’mhux aktar minn g[oxrin

fil-mija<

-

fejn il-persuna kkonçernata tipprovdi evidenza li [adet il-

passi adegwati sabiex tnaqqas l-effetti negattivi tal-ksur, l-ammont

ba]iku jitnaqqas b’mhux aktar minn g[axra fil-mija.

6. L-ammont finali tal-multa amministrattiva f’kull ka] m’g[andux

jeççedi l-g[oxrin elf lira (E46587.47) jew ikun anqas minn mitejn lira

(E465.87).

7. Fejn il-persuna li hija notifikata b’avvi] skond l-artikolu 106 A

(7) ta’ dan l-Att tiddeçiedi li t[allas il-multa amministrattiva ming[ajr

kontestazzjoni, l-ammont finali tal-multa amministrattiva deçiza skond

ir-regoli msemmija iktar ’il fuq tonqos b’mhux aktar minn g[oxrin fil-

mija>

I]da din ir-regola ma tapplikax fil-ka] tat-tieni ksur jew ksur

sussegwenti.

8. G[all-ksur msemmi ta[t l-artikolu 12 l-ammont tal-multa Ksur ta[t l-

Artikolu 12

m’g[andux jkun anqas minn elfejn lira (E4658.75) u mhux aktar minn

[amest elef lira (E11646.87).

9. G[all-ksur msemmi ta[t l-artikolu 14B l-ammont tal-multa Ksur ta[t l-

Artikolu 14B

m’g[andux jkun anqas minn elfejn lira (E4658.75) u mhux aktar minn

[amest elef lira (E11646.87).

10. G[all-ksur msemmi ta[t l-artikolu 94 l-ammont tal-multa Ksur ta[t l-

Artikolu 94

m’g[andux jkun anqas minn elfejn lira (E4658.75) u mhux aktar minn

g[axart elef lira (E23293.73)<

I]da fil-ka] fejn ordni ta’ t[aris ma ji;ix obdut id-Direttur

jista’#tista’ jimponi#timponi wkoll multa ta’ mhux anqas minn [amsin

lira (E116.47) u mhux aktar minn mitt lira (E232.94) g[all-kull ;urnata li

fiha ma ji;ix obdut.”

Taqsima II

EMENDA TAL-KODI?I KUMMER?JALI

Din it-taqsima temenda u g[andha tinqara u tiftiehem b[ala

[a;a wa[da mal-Kodiçi Kummerçjali hawn iktar ’il quddiem imsemmi

13. b[ala “il-Kodiçi”

Immedjatament wara l-artikolu 32 tal-Kodiçi, g[andhom

ji]diedu l-artikoli l-;odda 32A u 32B kif ;ej>

32A. (1) Kummerçjanti m’g[andhomx jag[mlu

reklamar komparattiv.

(2) Minkejja s-subartikolu preçedenti reklamar

komparattiv huwa, safejn il-paragun huwa konçernat, permess

meta l-kundizzjonijiet li ;ejjin ji;u sodisfatti>

(a) ma jkunx qarrieqi skond it-tifsira ta’ l-artikolu

32B jew skond it-tifsira ta’ l-artikoli 51C u 51D ta’ l-Att

dwar l-Affarijiet tal-Konsumatur<

(b) ikun jipparaguna o;;etti jew servizzi li

jissodisfaw l-istess [ti;ijiet jew li huma ma[suba g[all-

istess g[an<

(ç) ikun jipparaguna o;;ettivament xi wie[ed jew

iktar mill-karatteristiçi materjali, rilevanti, verifikabbli

u rappre]entattivi ta’ dawk l-o;;etti u s-servizzi, liema

karatteristiçi jistg[u jinkludu l-prezz<

(d) ma jkunx inaqqas mill-kreditu jew imaqdar

it-trade marks, l-ismijiet kummerçjali, jew il-marki

distintivi o[ra, l-o;;etti, is-servizzi, l-attivitajiet, jew iç-

çirkostanzi ta’ xi kompetitur<

(e) g[al prodotti b’titolu ta’ ori;ini, f’kull ka] ikun

jirreferi g[al prodotti bl-istess titolu<

(f) ma jie[ux vanta;; mhux ;ust mir-reputazzjoni

ta’ xi trade mark, isem kummerçjali jew marki distintivi

o[ra ta’ xi kompetitur jew tat-titolu ta’ ori;ini ta’ prodotti

konkorrenti<

(g) ma jkunx jippre]enta o;;etti jew servizzi b[ala

imitazzjonijiet jew repliki ta’ merkanzija jew servizzi li

g[andhom trade mark jew isem kummerçjali protett<

(h) ma jkunx jo[loq konfu]joni bejn kummerçjanti,

bejn dak li jirreklama u xi kompetitur jew bejn it-trade

marks, l-ismijiet kummerçjali jew xi marki distintivi o[ra,

o;;etti jew servizzi ta’ dak li jirreklama u dawk ta’ xi

kompetitur.

(3) Kull paragun li jirreferi g[al offerta speçjali

g[andu jindika b’mod çar u mhux ekwivoku d-data li fiha l-

offerta tintemm jew, fejn ikun xieraq, li l-offerta speçjali tkun

bla [sara g[ad-disponibbiltà ta’ l-o;;etti u servizzi, u, fejn l-

offerta speçjali tkun g[adha ma bdietx, id-data tal-bidu tal-

perijodu li matulu l-prezz speçjali jew kondizzjonijiet speçifiçi

o[ra g[andhom japplikaw. “Offerta speçjali” f’dan is-

subartikolu tirreferi g[all-prezz ta’ l-o;;etti jew is-servizzi

jew kwalunkwe kundizzjoni speçifika li ta[tha l-o;;etti jew

is-servizzi g[andu ji;u pprovduti.

(4) G[all-g[an ta’ dan l-Artikolu ‘reklamar

komparattiv” ifisser kull reklamar li espliçitament jew

b’deduzzjoni jidentifika kompetitur jew o;;etti jew servizzi

offruti minn kompetitur.

32B. (1) Il-kummerçjanti m’g[andhomx jag[mlu xi

forma ta’ reklamar qarrieqi.

(2) Reklam huwa qarrieqi jekk inklu]a l-

pre]entazzjoni tieg[u, iqarraq jew probabbilment iqarraq bil-

persuni li lejhom ikun indirizzat jew li g[andhom jasal, u

jekk min[abba n-natura qarrieqa tieg[u, hu probabbilment

jaffettwa l-im;ieba ekonomika tag[hom jew huwa wie[ed li

g[al dawk ir-ra;unijiet jag[mel [sara jew probabbilment

jag[mel [sara lil xi kompetitur tal-persuna li dan ir-reklam

g[andu l-g[an li jippromwovi l-interessi tag[ha.

(3) Sabiex ji;i stabbilit jekk reklamar huwiex

qarrieqi, g[andu jittie[ed kont tal-karatteristiçi tieg[u kollha,

u b’mod partikulari ta’ kull informazzjoni li jista’ jkun fih

dwar -

(a) il-karatteristiçi ta’ o;;etti jew servizzi, inklu]a

d-disponibbiltà tag[hom, in-natura, l-e]ekuzzjoni, il-

kompo]izzjoni, il-metodu u d-data tal-manifattura jew

provvista, kemm ikunu adattati g[all-iskop, l-u]u, il-

kwantità, l-ispeçifikazzjoni, l-ori;ini ;eografika jew

kummerçjali jew ir-ri]ultati normalment mistennija mill-

u]u tag[hom, jew ir-ri]ultati u l-karatteristiçi materjali

tat-testijiet jew kontrolli mwettqa fuq l-o;;etti jew is-

servizzi<

(b) il-prezz jew il-mod li bihom l-prezz ji;i

kkalkolat, u l-kondizzjonijiet li bihom l-o;;etti ji;u forniti

jew is-servizzi jkunu mog[tija<

(ç) in-natura, l-attributi u d-drittijiet ta’ min jag[mel

ir-reklam, b[all-identità u l-attiv tieg[u, il-kwalifiki u l-

pussess ta’ drittijiet ta’ proprjetà industrijali, kummerçjali

jew intellettwali jew kwalunkwe premjijiet u distinzjonijiet

miksuba minnu.”

Immedjatament wara l-artikolu 36 tal-Kodiçi g[andu jid[ol

l-artikolu 36A il-;did li ;ej>

36A. G[all-g[anjiet ta’ dan is-subtitolu, “reklamar”

tfisser kwalunkwe forma ta’ rappre]entazzjoni inklu] katalgu,

çirkolari u lista tal-prezzijiet, dwar xi kummerç negozju,

seng[a jew professjoni sabiex tin;ieb ’il quddiem l-provvista

jew it-trasferiment ta’ o;etti jew servizzi, propjetà immobbli,

drittijiet jew obbligi u ‘riklam’g[andu jinftiehem bl-istess

mod.”

Fis-subartikolu (3) ta’ l-artikolu 37 tal-Kodiçi, g[all-kliem

“ma tkunx anqas minn g[axar liri u l-anqas i]jed minn [ames mitt lira”,

g[andhom jid[lu l-kliem “ma tkunx anqas minn mitejn lira (€465.87)

u lanqas i]jed minn elfejn lira (€4658.75)”.

Taqsima III

EMENDA TA’ L-ATT DWAR KUNTRATTI FUQ L-G{ATBA

TAL-BIEB

Din il-parti temenda u g[andha tinqara u tinftiehm b[ala wa[da Emenda ta’ l-Att

dwar Kuntratti fuq

ma’ l-Att dwar Kuntratti fuq l-G[atba tal-Bieb, hawn iktar il-quddiem l-G[atba tal-Bieb.

imsemmi b[ala “l-Att prinçipali”.

Fis-subrtikolu (4) ta’ l-artikolu 4 ta’ l-Att prinçipali Emenda ta’ l-

artikolu 4 ta’ l-Att

immedjatament wara l-kliem “jkun insab [ati ta’ xi reat ta[t dan l-Att” prin/ipali.

g[andhom ji]diedu l-kliem “jew insab [ati ta’ xi ksur”.

L-artikolu 5A ta’ l-Att prinçipali g[andu ji;i sostitwit kif Sostituzzjoni ta’ l-

artikolu 5A ta’ l-Att

prin/ipali.

5A. (1) Min imur fid-dar jew fuq il-post tax-xog[ol

ta’ konsumatur bil-g[an li jikkummerçja kuntratt mag[mul

fuq l-g[atba tal-bieb jew g[al xi ra;uni inçidentali jew relatata,

jwarrab meta

g[andu jwarrab minn dak il-post meta jintalab jag[mel hekk

mill-konsumatur.

jag[mel dan.

(2) Ming[ajr pre;udizzju g[ad-dispo]izzjonijiet

tat-Titolu I tat-Taqsima VII ta’ l-Att Dwar l-Affarijiet tal-

Konsumatur, kwalunkwe persuna li jonqos milli j[alli tali dar

jew post tax-xog[ol meta jkun hekk mitlub ser ikun [ati ta’

reat kontra dan l-Att u jista’ je[el meta jinsab [ati multa ta

mhux aktar minn [ames mitt lira (€1164.69).”

Immedjatament wara l-artikolu 14 ta’ l-Att prinçipali, }ieda ta’ l-artikoli

14A u 14B ;odda

g[andhom ji]diedu i]-]ew; artikoli 14A u 14B li ;ejjin>

ma’ l-Att prin/ipali.

14A. Kull persuna li tonqos milli tobdi id-

disposizzjonijet ta’ dan l-Att minbarra l-artikoli 5 u 5A, liema

nuqqas jikkonstitwixxi ksur kontra dan l-Att, ser je[el multa

amministrattiva imposta mid-Direttur skond id-

disposizzjonijiet ta l-Att Dwar l-Affarijiet tal-Konsumatur ta’

mhux anqas minn mitejn lira (€465.87) u mhux aktar minn

elfejn lira (€4658.75).

Preskrizzjoni

14B. Il-prosekuzzjoni ta’ reat jew il-bidu ta’ proçeduri

aministrattivi

g[al ksur ta’ dispo]izzjoni ta’ dan l-Att g[andu

amministrattiv.

jkun preskritt bl-iskadenza ta’ tlett snin minn meta r-reat jew

l-ksur ji;i allegat li jkun sar.”

Immedjatament wara l-artikolu 15 ta’ l-Att prinçipali g[andu

ji]died l-artikolu l-15A li ;ej>

15A. L-g[an ta’ dan l-Att huwa parzjalment dak li

jimplimenta d-disposizzjonijiet tad-Direttiva tal-Kunsill

85#577#KEE ta’ l-20 ta’ Diçembru 1985 biex t[ares lill-

konsumatur rigward kuntratti nnegozjati barra mill-lok tan-

negozju u d-disposizzjonijiet ta’ dan l-Att g[andhom ji;u

applikati u interpretati b’dan il-mod.”

Mg[oddi mill-Kamra tad-Deputati fis-Seduta Nru. 611 tat-23 ta’ Jannar, 2008.

A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Skrivan tal-Kamra tad-Deputati

40. Immediately after article 93 of the principal Act, there shall Addition of new

articles 93A and

be added the following new articles>

93B to the principal

Act.

The provisions of this Part shall apply

“Protection in

notwithstanding

any clause in a contract for the sale of goods

applying the to a consumer which applies or purports to apply the law of a

law of a non-

non-Member State, if the contract is concluded in or has a

close connection with the territory of any Member State or

such other country or group of countries as the Minister may

from time to time designate for the purpose of this provision

by notice published in the Gazette.

The purpose of this Part is to implement the

provisions of Directive 1999#44#EC of the European

Parliament and of the Council of the 25 th May 1999 on certain

aspects of the sale of consumer goods and associated

guarantees and the provisions of this Part shall be applied

and interpreted accordingly.”

Article 94 of the principal Act shall be amended as follows>

41. (a) in subarticle (1) thereof, for the words “of his own

initiative or on a written application to him by a qualifying body,”

there shall be substituted the words “whether or not in conjunction

with a decision finding an infringement under article 14A, of his

own initiative or on a written application to him by a qualified

entity,”<

(b) for paragraph (b) of subarticle (1) thereof, there shall be

substituted the following>

“(b) requiring any person engaging or proposing to

engage in any unfair commercial practice, to discontinue or

refrain from such practice and, or to take any measures

specified in the compliance order, including the making of a

corrective statement, within the time specified therein to

ensure that the provisions of Part VII of this Act are complied

with<”<

(c) in paragraph (c) of subarticle (1) thereof, immediately

after the words “requiring any person to take any measures specified

in the compliance order,” there shall be inserted the words

“including the making of a corrective statement,”

(d) in paragraph (d) of subarticle (1) thereof, immediately

after the words “committing an offence” there shall be inserted

the words “or an infringement”<

(e) subarticles (2), (3) and (4) thereof shall be renumbered

as subarticles (5), (6) and (7) respectively<

(f) immediately after subarticle (1) thereof, there shall be

inserted the following new subarticles>

“(2) The qualified entity requesting a compliance order

in terms of subarticle (1) must satisfy the Director that it has

tried to achieve the cessation of the infringement in

consultation with either the defendant or both the defendant

and another qualified entity and that the cessation was not

achieved within two weeks from the request for cessation.

(3) Where the qualified entity is from another Member

State, the Director shall treat the list of qualified entities

published by the European Commission as conclusive proof

of the legal capacity of the legal entity to present such written

application in Malta.

(4) Where the qualified entity is from Malta, and such

entity is not included in the list of qualified entities published

by the European Commission, the Director shall, at the request

of the qualified entity concerned, communicate to the

European Commission the name and objects of such entity

and that such qualified entity should be added to the list of

qualified entities so as to facilitate the redress of intra-

Community infringements.”<

(g) subarticle (5) as renumbered thereof shall be amended

as follows>

(i) in paragraph (b) thereof, for the words “information

about the right to institute an action before the court” there

shall be substituted the words “information about the right to

file an application before the Appeals Board”<

(ii) in paragraph (c) thereof, for the words”“qualifying

body” there shall be substituted the words “qualified entity”<

(iii) immediately after paragraph (c) thereof, there shall

be added the following new paragraph>

“(d) notify the person against whom the order is

made that non-compliance with the order may lead to

the imposition of an administrative fine.”<

(h) in subarticle (7) as re-numbered thereof, for the words

“qualified body” there shall be substituted the words “qualified

entity”< and

(i) immediately after subarticle (7) as re-numbered thereof,

there shall be added the following new subarticle>

“(8) Any person who fails to comply with a compliance

order issued by the Director, shall be guilty of an infringement

against this article.”

42. Article 95 of the principal Act shall be amended as follows> Amendment of

article 95 of the

principal Act.

(a) for the words “qualifying body” wherever they appear

in the article, there shall be substituted the words “qualified entity”<

and

(b) in subarticle (3) thereof, for the words “institute an action

before the Courts of Magistrates in their civil jurisdiction”, there

shall be substituted the words “file an application before the

Appeals Board”.

Article 97 of the principal Act shall be amended as follows>

43. (a) in subarticle (1) thereof, for the words “within fifteen

days of the notification of the compliance order on him, institute

an action before the Courts of Magistrates in their civil jurisdiction

for a revocation of the compliance order” there shall be substituted

the words “within fifteen days from notification of the compliance

order, appeal from the said order by application before the Appeals

Board for the revocation or amendment of the compliance order”<

(b) for subarticle (2) thereof, there shall be substituted the

following>

“(2) The Appeals Board may confirm or revoke the

compliance order or change it on any terms or conditions the

Board may consider appropriate.”<

(c) in subarticle (3) thereof, for the words “Where an action

is instituted”, there shall be substituted the words “Where an appeal

is filed,” and for the words “the court” wherever they appear in the

subarticle, there shall be substituted the words “the Appeals Board”<

and

(d) in subarticle (4) thereof, for the words “may not institute

an action before the court” there shall be substituted the words

“may not appeal before the Appeals Board”.

44. For article 98 of the principal Act there shall be substituted

the following>

“98. Appeals filed under articles 95 and 97 shall be heard

and determined by the Appeals Board with urgency and as

expeditiously as possible.”

45. For article 101 of the principal Act there shall be substituted

the following>

“101. (1) The Director may, in order to eliminate or reduce

the continuing effects of any non-observance of any provisions of

this Act or of regulations made thereunder or of any other law

dealing with consumer rights and protection as may be designated

by the Minister after consulting the Council by order in the Gazette,

require by notice in writing any person -

(a) to publish a copy of the compliance order made

under article 94 against any such person, in full or in part and

in such form as he considers to be appropriate and adequate<

and, or

(b) to publish a corrective statement as required by the

compliance order in relation to any infringement of this Act,

against any regulations made thereunder, or against any other

law dealing with consumer rights and protection as may be

designated by the Minister after consulting the Council by

order in the Gazette.

(2) Publication shall be made in at least two daily

newspapers and if appropriate, in any other medium of

communication within seven days from receipt of the notice and it

shall be at the expense of the person served with such notice. Where

such publication is not effected as aforesaid, the Director may

proceed to effect publication himself, in which case he shall have

the right to recover from the person on whom the notice is served

any expenses incurred as a civil debt.”

46. In subarticle (1) of article 102 of the principal Act for the Amendment of

article 102 of the

words “in writing authorise a public officer to perform any of his principal Act.

functions or exercise any power granted to him under this Part. Any

such officer shall” there shall be substituted the words “in writing

authorise a public officer, or with the consent of the Minister, any other

person employed by a body corporate established by law, to perform

any of his functions or exercise any power granted to him under this

Act. Any such officer or person shall”.

Amendment of

Article 105 shall be amended as follows>

47. article 105 of the

principal Act.

(a) in paragraph (a) thereof, immediately after the words

“or a public officer” there shall be added the words “or an authorised

person”<

(b) in paragraph (b) thereof, for the words “or a public officer

in the course of his duties under this Part,” there shall be substituted

the words “or a public officer or an authorised person in the course

of his duties under this Part< or”< and

(c) immediately after paragraph (b) thereof, there shall be

added the following new paragraph>

“(c) refuses or fails to furnish information as required

under this Part or else provides false or misleading

information,”.

Article 106 of the principal Act shall be amended as follows>

48. (a)

subarticles (1) and (3) thereof shall be deleted<

(b) subarticle (2) shall be renumbered as the whole article

106< and

(c) in article 106 as renumbered, for the words “on

conviction be liable to a fine (multa) or not less than one hundred

liri (€232.94) and not more than ten thousand liri (€23293.74).”,

there shall be substituted the words “on conviction be liable to a

fine (multa) or not less than two hundred liri (€465.87) and not

more than twenty thousand liri (€46587.47).”

49. Immediately after article 106 of the principal Act, there shall

be added the following new article 106A>

(1) The Director may impose an

“Administrative

administrative fine upon any person who is found by the

Director following an investigation under article 14A to have

committed an infringement of a provision of this Act or of

any regulation made thereunder.

(2) An administrative fine imposed for an

infringement under subarticle (1) shall not be less than two

hundred liri (€465.87) and not more than twenty thousand

liri (€46587.47)>

Provided that in the case of non-compliance with a

compliance order the Director may also impose a daily fine

of not more than one hundred liri (€232.94) for each day of

non-compliance.

(3) In determining the amount of an

administrative fine in respect of infringements of provisions

of this Act, the Director shall follow the rules of the Second

Schedule< and in respect of infringements of regulations made

under this Act and infringements of provisions of other laws

administered by the Director, the Director shall follow the

respective rules determining the amount of the administrative

fine prescribed therein.

(4) The Director may, in conjunction with the

Minister, from time to time amend, or substitute the Second

Schedule to this Act.

(5) Before imposing an administrative fine

under this article, the Director shall write to the person

concerned warning him that an administrative fine may be

imposed and informing him of the amount of the fine that

may be imposed and the specific reasons for which it may be

imposed and granting the person concerned a period of not

less than fifteen days as the Director may determine to be

appropriate in the circumstances during which period the

person concerned may make his submissions to the Director.

Provided that where the Director has used the procedure

provided for in article 14A, the period granted for submissions

in the said article and in this subarticle may be given

concurrently.

(6) Before deciding whether to impose an

administrative fine the Director shall consider the submissions,

if any, made to him under subarticle (5).

(7) If after the lapse of the period during which

submissions may be made in accordance with subarticle (5)

the Director considers that the person concerned has not given

any valid proof or reasons to demonstrate that the

administrative fine referred to in subarticle (5) should not be

imposed, the Director shall impose an administrative fine in

accordance with this Act and shall give notice in writing to

the person concerned specifying the nature of the infringement

and the amount of the administrative fine due>

Provided that where the Director has used the procedure

provided for in article 14A, the said notice may be given in

the decision finding an infringement issued under article 14A.

(8) The notice as referred to in subarticle (7)

shall, without prejudice to the right of appeal under article

110C, 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.

(9) Notwithstanding the provisions of article

256(2) of the Code of Organization and Civil Procedure, the

executive title referred to in subarticle (8) shall not be

enforceable before the lapse of fifteen days from the service

of the judicial act therein referred to>

Provided that where an appeal against an administrative

fine in accordance with article 110C has been filed, the

provisions of the same article shall apply.”

50. Immediately after article 107 of the principal Act, there shall

be added the following new articles>

“Order by the

Where the Director issues a decision finding an

infringement under article 14A, he may, without prejudice to

any other remedy provided for under this Act, order the

restitution of any money or property given by the consumer.

Participants, other than those who establish,

monies paid.

operate or promote a chain letter scheme in terms of article

52A and a pyramid promotional scheme in terms of rule 14

of the First Schedule shall be entitled not later than two years

from the date on which they have made the last payment to

institute an action before the ordinary courts to demand a full

refund of any monies paid by them into the scheme.”

51. For article 108 of the principal Act, there shall be substituted

the following>

“Prescription

The prosecution of an offence or the initiation of

administrative proceedings under this Act or regulations made

administrative

infringements. thereunder, unless a different term is prescribed therefor, shall

be prescribed by the lapse of three years from the date on

which the offence or infringement is alleged to have been

committed.”

52. In article 109 of the principal Act, for the words “any public

officers”, there shall be substituted the words “any public officer or any

authorised person”.

53. In subarticle (1) of article 110 of the principal Act, for the

words “Where an order or notice” there shall be substituted the words

“Where a decision, order, measure or notice”.

54. Immediately after Article 110 of the principal Act, there shall Addition

Part XII to the

be added the following new Part>

principal Act.

“PART XII

Consumer Affairs Appeals Board

(1) There shall be an Appeals Board, to be

known as the Consumer Affairs Appeals Board which shall

have jurisdiction to hear and determine appeals from

decisions, orders or measures of the Director as provided in

this Act.

(2) The Consumer Affairs Appeals Board shall

be appointed by the Prime Minister, and shall be composed

of>

(a) a Chairperson who shall be an advocate with

at least seven years practice< and

(b) two other members who because of their

experience, qualifications or activities are considered by

the Prime Minister as able to properly assess the fairness

or otherwise of commercial practices from a consumer’s

and a trader’s perspective.

(3) The Chairperson and the other members of

the Appeals Board shall be appointed for a term of three years

and shall be eligible for re-appointment.

(4) The Appeals Board shall be independent in

the performance of its functions.

(5) The Chairperson and members of the Appeals

Board may be challenged or abstain for any of the reasons for

which a judge may be challenged or abstain in accordance

with the Code of Organization and Civil Procedure. In such a

case the Prime Minister shall appoint a person, having the

qualifications of the Chairperson or member challenged or

abstaining, to sit in substitution.

(6) A member of the House of Representatives

or of the European Parliament or of a local council shall be

disqualified from being appointed or continuing to be the

Chairperson or a member of the Appeals Board for as long as

he holds that office.

(7) The Chairperson or member of the Appeals

Board may only be removed from office by the Prime Minister

on grounds of gross negligence, conflict of interest,

incompetence, or acts or omissions unbecoming a member

of the Appeals Board. In doing so the Prime Minister shall

lay before the House of Representatives a statement giving

the reasons for the removal of the said member.

(8) The Prime Minister shall designate a person

to serve as secretary to the Appeals Board and who shall serve

in such a capacity in accordance with the ethical standards

appropriate to his#her position.

(1) An appeal shall lie to the Appeals Board

from a decision, order or measure of the Director made under

this Act.

(2) The right of appeal to the Appeals Board

administrative

shall be competent to any person aggrieved by the decision,

order or measure>

Provided that in any case, a person making an appeal to

the Appeals Board shall also explain his juridical interest in

impugning the decision, order or measure appealed from.

(3)

Without prejudice to the provisions of

article 110C -

(a) an appeal from a decision, order or measure

of the Director shall be made by application and shall be

filed with the secretary of the Appeals Board within

fifteen days from the date on which the said decision

has been notified to the party appealing< and

(b) the application of appeal shall be notified to

the Director, which shall not later than fifteen days from

such notification file its reply thereto with the secretary

of the Appeals Board.

(1) Without prejudice to the provisions of this

Part, the procedure to be followed in relation to appeals against

administrative

administrative fines imposed by the Director shall be regulated

by the provisions of this article.

the Director.

(2) A person who is notified with a judicial act

referred to in article 106A (8) may within fifteen days from

the date of such notification lodge an appeal before the

Appeals Board objecting to the administrative fine so fixed.

(3) The Appeals Board 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 Director due

account being given to the principle of proportionality.

(4) The Appeals Board shall, without delay, set

down the appeal for hearing at an early date, which date shall

in no case be later than thirty days from the date of the service

of the appeal on the Director.

(5) The appeal, and the notification of the date

fixed for hearing, shall be notified to the Director without

delay, and the Director shall file its reply thereto within fifteen

days from the date of the notification of the appeal.

(6) The decision of the Appeals Board upon an

appeal referred to in subarticle (2) hereof, confirming the

imposition of a fine established by the Director or reducing

any such fine, shall upon becoming res judicata be deemed

to be a decision of the Appeals Board equivalent to a decision

of the First Hall of the Civil Court ordering payment by the

appellant of the administrative fine as confirmed or reduced.

(7) There shall be a right of appeal to the Court

of Appeal to any of the parties to the proceedings before the

Appeals Board in accordance with article 110F.

Decisions of

(1) In determining an appeal the Appeals

Board shall take into account the merits of the appeal, and

may in whole or in part, confirm or annul the decision, order

or measure appealed from, giving in writing the reasons for

its decision and shall cause such decision to be made public

and communicated to the parties to the appeal.

(2) Subject to the provisions of article 110F,

the decisions of the Appeals Board shall be final and binding.

(3) Where the Appeals Board considers that,

having regard to its determination of the appeal and all other

relevant matters, there are sufficient reasons rendering it

equitable to do so, it may, either of its own motion or on

application by a consumer being a party to the appeal, order

that the whole or part of the costs of any such party appearing

before the Appeals Board relating to the engagement of a

lawyer and, or of a technical adviser shall be paid to the

consumer concerned by any other party to the appeal named

in the order.

(1) In the exercise of its functions the Appeals

Procedure of

Board may summon any person to appear before it and give

evidence and produce documents, and the Chairman of the

Appeals Board shall have the power to administer the oath.

(2) The Appeals Board shall endeavour to

determine an appeal within sixty days from the lapse of the

period by when the Director may file its reply to the aforesaid

appeal and in any case shall deliver its final decision not later

than thirty days from when the parties declare that they have

concluded with their evidence and made their final

submissions.

(3) The Appeals Board in order to assist it in

the exercise of its functions may appoint independent and

impartial experts to advise it on any issue that may be relevant

to any appeal lodged before it. In such cases the Appeals Board

shall be entitled to make both provisional and final orders in

respect of the payment of the costs and fees of such experts

by any of the parties to the appeal.

(4) The Appeals Board in the exercise of its

functions shall have the same powers as are competent to the

First Hall, Civil Court according to law.

(5) The Minister may subject to the provisions

of this Act, by regulations prescribe the procedure to be

followed before the Appeals Board, and subject thereto and

to any other provisions of this Act, the Appeals Board may

regulate its own procedure.

(6) The Minister may, with the concurrence of

the Minister responsible for finance by regulations made under

this Act, establish any such fees as are considered to be

necessary in relation to any proceedings before the Appeals

Board.

(7) The Minister may by regulations made

under this Act, amend any of the periods stated in subarticle

(2).

Appeal to the

(1) Any party to an appeal to the Appeals

Board

including the Director, who feels aggrieved by a

decision of the Appeals Board, may on points of law and, or

on grounds of natural justice appeal to the Court of Appeal

(Inferior Jurisdiction) as constituted in accordance with article

41(6) of the Code of Organization and Civil Procedure by

means of an application filed in the registry of that court within

fifteen days from the date of the decision of the Appeals Board.

(2) The Minister responsible for justice may

by regulation under this subarticle establish the fees payable

in the registry of the court in relation to the filing of judicial

acts in connection with appeals under this article>

Provided that until such fees are so established, the fees

in Schedule A to the Code of Organization and Civil Procedure

shall apply.

(3) The Board established under article 29 of

the Code of Organization and Civil Procedure may make Rules

of Court governing appeals to the Court of Appeal under this

article.

(1) Without prejudice to article 97 (3), any

decision, order or measure of the Director pending an appeal

whether before the Appeals Board or the Court of Appeal,

appeal before shall stand and shall be adhered to by all the parties to whom

Board or the the decision, order or measure applies.

(2) The Appeals Board or the Court of Appeal

as the case may be, where it considers it to be appropriate,

may on the application of a party to the appeal, suspend the

decision, order or measure of the Director pending the final

determination of the appeal. The Appeals Board or the Court

of Appeal in deciding to suspend the decision, order or

measure shall state their reasons for doing so.”

55. Immediately after article 111 of the principal Act, there shall Addition of new

First Schedule to the

be added the following new First Schedule>

principal Act.

“First Schedule

(Article 51B (4))

Commercial Practices which are ipso jure unfair

Misleading commercial practices

1. Claiming to be a signatory to a code of conduct when the trader

is not.

2. Displaying a trust mark, quality mark or equivalent without

having obtained the necessary authorisation.

3. Claiming that a code of conduct has an endorsement from a

public or other body which it does not have.

4. Claiming that a trader, including his#her commercial practices,

or a product has been approved, endorsed or authorised by a public or

private body when he#she#it has not, or making such a claim without

complying with the terms of the approval, endorsement or authorisation.

5. Making an invitation to purchase products at a specified price

without disclosing the existence of any reasonable grounds the trader

may have for believing that he#she will not be able to offer for supply

or to procure another trader to supply, those products or equivalent

products at that price for a period that is, and in quantities that are,

reasonable having regard to the product, the scale of advertising of the

product and the price offered (bait advertising).

6. Making an invitation to purchase products at a specified price

and then>

(a)

refusing to show the advertised item to consumers< or

(b) refusing to take orders for it or deliver it within a

reasonable time< or

(c) demonstrating a defective sample of it, with the intention

of promoting a different product (bait and switch).

7. Falsely stating that a product will only be available for a very

limited time, or that it will only be available on particular terms for a

very limited time, in order to elicit an immediate decision and deprive

consumers of sufficient opportunity or time to make an informed choice.

8. Undertaking to provide after-sales service to consumers with

whom the trader has communicated prior to a transaction in a language

which is not an official language of the Member State where the trader

is located and then making such service available only in another

language without clearly disclosing this to the consumer before the

consumer is committed to the transaction.

9. Stating or otherwise creating the impression that a product

can legally be sold when it cannot.

10. Presenting rights given to consumers by law as a distinctive

feature of the trader’s offer.

11. Without prejudice to the provisions of the Broadcasting Act

(Cap. 350) and any regulations made thereunder, using editorial content

in the media to promote a product where a trader has paid for the

promotion without making that clear in the content or by images or

sounds clearly identifiable by the consumer (advertorial).

12. Making a materially inaccurate claim concerning the nature

and extent of the risk to the personal safety or security of the consumer

or his family if the consumer does not purchase the product.

13. Promoting a product similar to a product made by a particular

manufacturer in such a manner as deliberately to mislead the consumer

into believing that the product is made by that same manufacturer when

it is not.

14. Establishing, operating or promoting a pyramid promotional

scheme where a consumer gives consideration for the opportunity to

receive compensation that is derived primarily from the introduction of

other consumers into the scheme rather than from the sale or

consumption of products.

15. Claiming that the trader is about to cease trading or move

premises when he is not.

16. Claiming that products are able to facilitate winning in games

of chance.

17. Falsely claiming that a product is able to cure illnesses,

dysfunction or malformations.

18. Passing on materially inaccurate information on market

conditions or on the possibility of finding the product, with the intention

of inducing the consumer to acquire the product at conditions less

favourable than normal market conditions.

19. Claiming in a commercial practice to offer a competition or

prize promotion without awarding the prizes described or a reasonable

equivalent.

20. Describing a product as “gratis”, “free”, “without charge” or

similar if the consumer has to pay anything other than the unavoidable

cost of responding to the commercial practice and collecting or paying

for delivery of the item.

21. Including in marketing material an invoice or similar

document seeking payment which gives the consumer the impression

that he has already ordered the marketed product when he has not.

22. Falsely claiming or creating the impression that the trader is

not acting for purposes relating to his trade, business, craft or profession,

or falsely representing oneself as a consumer.

23. Creating the false impression that after-sales service in

relation to a product is available in a Member State other than the one

in which the product is sold.

Aggressive commercial practices

24. Creating the impression that the consumer cannot leave the

premises until a contract is formed.

25. Conducting personal visits to the consumer’s home ignoring

the consumer’s request to leave or not to return except in circumstances

and to the extent justified, under national law, to enforce a contractual

obligation. This is without prejudice to article 5A of the Doorstep

Contracts Act.

26. Making persistent and unwanted solicitations by telephone,

fax, e-mail or other remote media except in circumstances and to the

extent justified under national law to enforce a contractual obligation.

This is without prejudice to Regulations 8 and 9 of the Distance Selling

Regulations (L.N. 186 of 2001) and the Data Protection Act (Cap. 440)

and the Processing of Personal Data (Electronic Communications Sector)

Regulations (L.N. 16 of 2003).

27. Requiring a consumer who wishes to claim on an insurance

policy to produce documents which could not reasonably be considered

relevant in determining whether the claim was valid, or failing

systematically to respond to pertinent correspondence, in order to

dissuade a consumer from exercising his contractual rights.

28. Including in an advertisement a direct exhortation to children

to buy advertised products or persuade their parents or other adults to

buy advertised products for them. This provision is without prejudice

to Rule 6 of the Broadcasting Code For The Protection of Minors, 2000

(L.N. 160 of 2000)

29. Demanding immediate or deferred payment for, or the return

or safekeeping of, products supplied by the trader, but not solicited by

the consumer (inertia selling).

30. Explicitly informing a consumer that if he does not buy the

product or service, the trader’s job or livelihood will be in jeopardy.

31. Creating the false impression that the consumer has already

won, will win, or will on doing a particular act win, a prize or other

equivalent benefit, when in fact either>

- there is no prize or other equivalent benefit, or

- taking any action in relation to claiming the prize or other

equivalent benefit is subject to the consumer paying money or

incurring a cost.”

56. Immediately after the new First Schedule to the principal Addition of new

Second Schedule to

Act, there shall be added the following new Second Schedule>

the principal Act.

“Second Schedule

(Article 106A (3))

Administrative fines

1. In determining the amount of the administrative fine specified

in Article 106A, the Director shall be guided by the following

considerations.

Infringements under Articles 51F, 52A and 53

2. For infringements under articles 51F, 52A and 53, the basic

amount of the fine shall be one thousand liri (€2329.37)<

Provided that the Director may, in setting the fine, take into account

circumstances that may lead to an increase or decrease in the basic

amount<

Provided further that the Director shall do so on the basis of an

overall assessment which takes into account all the relevant

circumstances.

3. The Director may impose a higher administrative fine than

the basic amount where there are aggravating circumstances, having

regard to the gravity and duration of the infringement and, or the amount

of gains improperly made as a result of the infringment.

4. Without prejudice to the generality of rule 3, the following

shall in all cases be deemed as aggravating circumstances>

- where the infringement is an unfair commercial practice

listed in the First Schedule, the basic amount shall be increased by

a sum not less than seven hundred and fifty liri (€1747.03) and

not more than two thousand liri (€4658.75)<

- in the case of a second or subsequent infringement, the basic

amount shall be increased by one thousand liri (€2329.37) for

each and every subsequent infringement<

- where the practice or scheme constituting the infringement

is the principal means by which the trader runs or operates his

business, the basic amount shall be increased by a sum not less

than seven hundred and fifty liri (€1747.03) and not more than

two thousand liri (€4658.75)<

- where the practice or scheme constituting the infringement

is specifically targeting vulnerable consumers, the basic amount

shall be increased by one thousand liri (€2329.37)<

- where the unfair commercial practice is accompanied by

any of the factors listed in article 51E (2) of the Act, the basic

amount shall be increased by a sum not less than seven hundred

and fifty liri (€1747.03) and not more than two thousand liri

(€4658.75).

5. The basic amount may be decreased where the Director finds

that there are mitigating circumstances, in particular>

- where the person concerned provides evidence that he#she

terminated the unfair commercial practice constituting the

infringement as soon as the Director commenced investigations

under article 14A of the Act, the basic amount shall be decreased

by not more than twenty per centum<

- where the person concerned provides evidence that he#she

has taken adequate steps to reduce the negative effects of the

infringement, the basic amount shall be decreased by not more

than ten per centum.

6. The final amount of the administrative fine shall not, in any

event, exceed twenty thousand liri (€46587.47) or be lower than two

hundred liri (€465.87).

7. Where the person who is served with a notice in terms of article

106A (7) of this Act, elects to pay the administrative fine without

contestation, the final amount of the administrative fine determined in

accordance with the above rules shall be decreased by not more than

twenty per centum>

Provided that this rule shall not apply in the case of second or

subsequent infringements.

Infringements under Article 12.

8. For the infringement referred to in article 12, the amount of

the fine shall not be less than two thousand liri (€4658.75) and not

more than five thousand liri (€11646.87).

Infringements under Article 14B.

9. For the infringement referred to in article 14B, the amount of

the fine shall not be less than two thousand liri (€4658.75) and not

more than five thousand liri (€11646.87).

Infringements under Article 94.

10. For the infringement referred to in article 94, the amount of

the fine shall not be less than two thousand liri (€4658.75) and not

more than ten thousand liri (€23293.73)<

Provided that in the case of non-compliance with a compliance

order the director may also impose a daily fine of not less than fifty liri

(€116.47) and not more than one hundred liri (€232.94) for each day

of non-compliance.”

Part II

AMENDMENT OF THE COMMERCIAL CODE

57. This Part amends and shall be read and construed as one

with the Commercial Code, hereinafter referred to as “the Code”.

58. Immediately after article 32 of the Code, there shall be added

the following new articles 32A and 32B>

32A. (1) Traders shall not engage in any comparative

advertising.

(2) Notwithstanding the preceding subarticle,

comparative advertising shall, as far as the comparison is

concerned, be permitted when the following conditions are

met>

(a) it is not misleading within the meaning of

article 32B or within the meaning of articles 51C and

51D of the Consumer Affairs Act<

(b) it compares goods or services meeting the

same needs or intended for the same purpose<

(c) it objectively compares one or more material,

relevant, verifiable and representative features of those

goods and services, which may include price<

(d) it does not discredit or denigrate the trade

marks, trade names, other distinguishing marks, goods,

services, activities, or circumstances of a competitor<

(e) for products with designation of origin, it

relates in each case to products with the same

designation<

(f) it does not take unfair advantage of the

reputation of a trade mark, trade name or other

distinguishing marks of a competitor or of the designation

of origin of competing products<

(g) it does not present goods or services as

imitations or replicas of goods or services bearing a

protected trade mark or trade name<

(h) it does not create confusion among traders,

between the advertiser and a competitor or between the

advertiser’s trade marks, trade names, other

distinguishing marks, goods or services and those of a

competitor.

(3) Any comparison referring to a special offer

shall indicate in a clear and unequivocal way the date on which

the offer ends or, where appropriate, that the special offer is

subject to the availability of the goods and services, and where

the special offer has not yet begun the date of the period during

which the special offer shall apply. “Special offer” in this

subarticle refers to the price of the goods or services or any

other specific condition under which the goods or services

will be supplied.

(4) For the purposes of this article “comparative

advertising” means any advertising which explicitly or by

implication identifies a competitor or goods or services offered

by a competitor.

32B. (1) Traders shall not engage in any form of

misleading advertising.

(2) An advertisement is misleading if in any

way, including its presentation, it deceives or is likely to

deceive the persons to whom it is addressed or whom it

reaches, and if by reason of its deceptive nature, it is likely to

affect their economic behaviour or is one which for those

reasons, injures or is likely to injure a competitor of the person

whose interests the advertisement seeks to promote.

(3) In determining whether an advertisement

is misleading account shall be taken of all its features, and in

particular of any information it may have about -

(a) the characteristics of goods or services,

including their availability, nature, execution,

composition, method and date of manufacture or

provision, fitness for purpose, uses, quantity,

specification, geographical or commercial origin or the

results to be expected from their use, or the results and

material features of tests or checks carried out on the

goods or services<

(b) the price or the manner in which the price is

calculated, and the conditions on which the goods are

supplied or the services provided<

(c) the nature, attributes and rights of the

advertiser, including his identity and assets, his

qualifications and ownership of industrial, commercial

or intellectual property rights or any awards and

distinctions made to him.”

59. Immediately after article 36 of the Code, there shall be added

the following new article 36A>

36A. For the purposes of this subtitle, “advertising”

means any form of representation, including a catalogue, a

circular and a price list, about a trade, business, craft or

profession in order to promote the supply or transfer of goods

or services, immovable property, rights or obligations and

“advertisement” shall be construed accordingly.”

60. In subarticle (3) of article 37 of the Code, for the words “shall

not be less than ten liri nor more than five hundred liri”, there shall be

substituted the words “shall not be less than two hundred liri (€465.87)

nor more than two thousand liri (€4658.75)”.

Part III

AMENDMENT OF THE DOORSTEP CONTRACTS ACT

61. This Part amends and shall be read and construed as one

with the Doorstep Contracts Act, hereinafter referred to as “the principal

62. In subarticle (4) of article 4 of the principal Act, immediately

after the words “or has been convicted of any offence” there shall be

added the words “or found guilty of any infringement”.

63. For article 5A of the principal Act there shall be substituted

the following>

5A. (1) A person who calls at the home or place of

work of a consumer for the purpose of negotiating a doorstep

contract or for an incidental or related purpose shall leave

that place at the request of the consumer.

(2) Without prejudice to the provisions of Title

I of Part VII of the Consumer Affairs Act, any person who

fails to leave such home or place of work when so requested

shall be guilty of an offence against this Act and shall on

conviction be liable to a fine (multa) not exceeding five

hundred liri (€1164.67).”

64. Immediately after article 14 of the principal Act, there shall Addition of new

articles 14A and

be added the following two new articles 14A and 14B>

14B to the principal

Act.

14A. Any person who fails to comply with the

“Infringements.

provisions of this Act other than articles 5 and 5A, which

failure constitutes an infringement against this Act, shall be

liable to an administrative fine imposed by the Director in

terms of provisions of the Consumer Affairs Act of not less

than two hundred liri (€465.87) and not exceeding two

thousand liri (€4658.75).

14B. The prosecution of an offence or the initiation of

administrative

proceedings for an infringement of a provision

administrative of this Act shall be prescribed by the lapse of three years

infringements.

from the date on which the offence or infringement is alleged

to have been committed.”

65. Immediately after article 15 of the principal Act, there shall Addition of new

article 15A to the

be added the following new article 15A>

principal Act.

15A. The purpose of this Act is partly to implement

the provisions of Council Directive 85#577#EEC of the 20 th

December, 1985 to protect the consumer in respect of contracts

negotiated away from business premises and the respective

provisions of this Act shall be applied and interpreted

accordingly.”

Passed by the House of Representatives at Sitting No. 611 of 23rd January,

2008. A NTON T ABONE

R ICHARD J. C AUCHI

Clerk to the House of Representatives