ACT No. VI of 2012 An act to enable the institution of collective proceedings for infringements of laws as may from time to time be designated in accordance with the provisions of the said Act and to provide for matters connected therewith or incidental thereto.

I assent.

(L.S.) G eorge A bela

President

19th June, 2012

ACT No. VI of 2012

An act to enable the institution of collective proceedings for

infringements of laws as may from time to time be designated

in accordance with the provisions of the said Act and to

provide for matters connected therewith or incidental thereto.

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

and consent of the House of Representatives, in the present

Parliament assembled, and by the authority of the same as

follows:-

(1) The short title of this Act is the Collective

Proceedings Act, 2012.

(2) This Act shall come into force on such date as the

Prime Minister, by notice in the Gazette, may appoint and different

dates may be so appointed for different provisions of this Act.

In this Act unless the context otherwise requires

“the Act” means the Collective Proceedings Act;

“class” means a group of persons who have suffered

or are suffering harm and whose claims arise from common

issues;

“class member” means a person falling within the class

specified in the collective proceedings decree;

“class representative” means the plaintiff, that is,

a person who is authorised to bring the claims in collective

proceedings and includes a sub-class representative;

“collective proceedings” means proceedings which are

brought by a class representative on behalf of persons whose

claims raise common issues and which may be instituted as a

group action or a representative action;

“collective proceedings agreement” means an agreement

entered into between the class member and the class

representative whereby the class member consents to his

inclusion in the collective proceedings and to the appointment

of the class representative and includes the claim of the class

member and may also include provision for the pre-payment

and, or reimbursement of any judicial costs incurred by the

class representative

Provided that every class member shall only be liable

for costs in proportion to his claim;

“collective proceedings decree” means a decree

authorising the action to proceed as collective proceedings;

“common issues” means -

(i) common but not necessarily identical issues of

fact, or

(ii) common but not necessarily identical issues

of law that arise from common but not necessarily

identical facts;

“constituted body” means a body which is purposely

set up to act in the interests of its members and includes also

any body recognised as a constituted body under the Malta

Council for Economic and Social Development Act, as well as

any other body of a similar nature recognised as a constituted

body under any other law or in accordance with established

administrative practice;

“group action” means proceedings that are brought on

behalf of a number of individual class members and whose

class representative satisfies the criteria mentioned in sub-

article (2) of article 12 of the Act;

“individual issues” means issues that are relevant only to

certain individual represented persons;

“opt-in proceedings” means collective proceedings

brought on behalf of class members who inform the

class representative as provided in the Act that their claim

should be included in the collective proceedings;

“public authority” shall have the same meaning as

defined in the Malta Competition and Consumer Affairs

Authority Act;

“registered consumer association” means a registered

consumer association as defined in the Consumer Affairs Act

and any other consumer association that has been officially

recognised in any other country;

“representative action” means proceedings that are

brought on behalf of a number of class members by a

representative body according to article 12(1) of the Act;

“represented person” means a class member who has

opted into the collective proceedings;

“TFEU” means the Treaty on the Functioning of the

European Union.

Collective proceedings may be instituted to seek the

cessation of an infringement, the rectification of the consequences

of an infringement and, or compensation for harm where:-

(a) an infringement of the Acts listed in Schedule A to

this Act or of any regulations made thereunder, unless these

regulations are expressly excluded in the said Schedule, and

of any regulations as may be listed in the Schedule is alleged

to have occurred;

(b) an investigation before a public authority or

proceedings before a tribunal or similar body or court of

civil jurisdiction concerning an infringement of the laws

mentioned in paragraph (a) is or are still pending; or

(c) a decision or judgement establishing a breach of

the said laws in relation to the same facts has become res

judicata.

(1) Where the class representative files a claim for Filing of collective

damages arising from an infringement of the Competition Act and, proceedings

or Articles 101 or 102 of the TFEU, the provisions of article 27A Competition Act.

of the Competition Act shall mutatis mutandis apply.

(2) Notwithstanding the provisions of article 7(1)(c) of

the Act, collective proceedings may also be instituted with respect

to damages caused by defective products under Part VIII of the

Consumer Affairs Act.

(1) Collective proceedings shall be instituted by means

of a sworn application, in the Civil Court First Hall or the Court

of Magistrates (Gozo) in its superior jurisdiction independently

of the amount of the claim, and the provisions of the Code of

Organisation and Civil Procedure, insofar as they are consistent

with the provisions of this Act, shall apply to proceedings under

this Act.

(2) The plaintiff shall therein request that the Court

declare that the collective proceedings procedure is the most

appropriate procedure in the circumstances.

(3) The sworn application shall–

(a) state the name of the class representative;

(b) state the name of the defendant;

(c) provide a description of the class;

(d) describe the common issues for the claims

which the class representative has brought in the collective

proceedings;

(e) state the claim or claims being requested and, if

applicable, attach a breakdown of the relative amounts due to

the class members;

(f) provide sufficient evidence for the satisfaction of

the criteria for declaration and approval according to articles

9 and 12 of the Act; and

(g) provide the Court with a collective proceedings

agreement.

Provided that the provisions of article 156 of the Code

of Organisation and Civil Procedure shall, where applicable, also

apply to the sworn application in collective proceedings

Provided further that the Court shall order the

amendment of the sworn application where other class

members opt- in within the period mentioned in article 7(2) of the

Act or following the permission of the Court in terms of article

8(1) of the Act and, or where a class representative for a sub-class

has been appointed in terms of article 14 of the Act.

The Court shall hold a pre-trial hearing and —

(a) either issue a decree ordering the continuation of

the proceedings together with other orders as it may deem fit;

(b) issue a decree to stay the proceedings if the parties

agree, during the hearing, to attempt to compromise the

lawsuit by alternative dispute resolution or other means.

(1) The Court shall decree the continuation of

proceedings if

(a) it declares the proceedings as appropriate for

collective proceedings in accordance with article 9 of the Act;

(b) it approves the plaintiff to act as the class

representative in accordance with article 12 of the Act; and

(c) it is satisfied that the claims are pursuant to article

3 of the Act.

(2)

The decree shall include-

(a) the name and address of the class representative;

(b)

the name of the defendant;

(c) a description of the class;

(d) the common issues for the claims which the class

representative has brought in the collective proceedings;

(e) the claims sought; and

(f) information on the legal effect of a judgment in the

collective proceedings.

Provided that the decree may also contain such

conditions as the Court may deem fit and the Court shall order

that such decree is to be published in the Gazette and in a local

English and Maltese newspaper and in any other media if the Court

deems it fit, provisionally at the expense of the class representative,

and shall state that any other third parties who desire to be class

members, may do so within a specified date as determined by the

Court, which date may not exceed five months from the date of the

decree, by registering their claim with the class representative and

entering into a collective proceedings agreement.

(1) A class member who does not opt-in in accordance

with article 7 of the Act may not do so after the specified date,

except with the permission of the Court. The Court may grant such

permission if it is satisfied that the delay was not caused by the

fault of that class member and the continuation of the proceedings

would not suffer substantial prejudice if permission were granted.

(2) A class member who has already filed a cause that

raises the common issues in the collective proceedings may not be

a represented person unless he discontinues or applies to stay that

cause before opting-in the collective proceedings.

(3) A class member may also not be a represented

person where

(a) he has already reached an out of court settlement

on the common issues set out in the collective proceedings

decree with the defendant; or

(b) an arbitration decision between the class member

and the defendant has already been issued on the remedies

sought by the class member; or

(c) a decision on the common issues set out in the

collective proceedings decree has already become res judicata

before a tribunal or similar body or court of civil jurisdiction

and the said tribunal or similar body or court has already

decided on the remedies sought by the class member.

(1) The Court shall decree the proceedings as appropri-

ate for collective proceedings when-

(a) it is satisfied by the class representative that the

claims in the proceedings—

(i) are brought on behalf of an identified class of

two or more persons; and

(ii)

raise common issues; and

(b) it is satisfied by the class representative that the

collective proceedings are the most appropriate means for the

fair and efficient resolution of the common issues.

(2) In determining whether the collective proceedings

are the most appropriate means for the fair and efficient resolution

of the common issues for the purposes of sub-article (1)(b) hereof,

the Court will take into account, amongst other things—

(a) the benefits of the proposed collective proceedings;

(b)

the nature of the class.

The court shall not refuse to decree proceedings as

collective proceedings solely on any of the following grounds

(a) the claim requires individual assessment after

determination of the common issues;

(b) the claim relates to separate contracts involving

different class members;

(c) the amount and nature of the damages sought vary

among the different class members.

Where the Court does not decree the proceedings as

collective proceedings, the Court shall dismiss the action.

(1) In a representative action, the Court shall approve

a registered consumer association or a constituted body to act as a

class representative, if it is satisfied that the class representative -

(a) would fairly and adequately act in the interests of

the class members; and

(b) does not have, in relation to the common issues for

the class members, a material interest that is in conflict with

the interests of the class members

Provided that when a representative action is brought

by a registered consumer association, only consumers qualifying

within the definition of ‘consumer’ in article 2 of the Consumer

Affairs Act shall be eligible to be class members.

(2) In a group action, the Court may approve the

plaintiff to act as the class representative if it is satisfied by the

plaintiff that he-

(a) has a claim which falls within the proposed

collective proceedings;

(b) would fairly and adequately act in the interests of

the class members; and

(c) does not have, in relation to the common issues for

the class members, a material interest that is in conflict with

the interests of the class members.

(1) The class representative shall act in the best

interests of the class members.

(2) The class representative shall explain to the class

members the nature of the collective proceedings and shall also

keep them informed on the progress of the proceedings including

any judgment or decree that is binding on those class members or

sub-class members and, if applicable, on whether he shall appeal

from the judgement delivered by the Court.

(3) The class representative shall keep and maintain a

register on which he will record the identity and claims of those

class members who are part of the collective proceedings and shall,

on request, make such register available to the defendant.

(4) If at any time after the Court’s decree ordering the

continuation of proceedings, it appears to the Court that the class

representative no longer satisfies the criteria mentioned in article 12 of

the Act or is no longer, for any other reason, in a position to represent

the interests of the represented persons, the Court may, either of its

own initiative or on the application of a class member —

(a) substitute the class representative by another person

who satisfies the criteria for approval in article 12 of the Act

as the class representative; and, or

(b) make any other order it considers appropriate.

(5) A class representative may only withdraw as a

party to the collective proceedings if the Court gives permission

for the withdrawal. The Court will only give permission for the

withdrawal if it is satisfied that the class representative –

(a) has given notice of the application to withdraw

to the class members in a form and manner that is approved

by the Court; and

(b) has satisfied the conditions that the Court may have

imposed.

(6) If the Court gives permission for the class

representative to withdraw from the proceedings and no substitute

class representative is approved, the Court shall give directions for

the future conduct of the proceedings which may include provision

that the proceedings shall continue as one or more proceedings

between different parties.

If the represented persons include a sub-class of

persons whose claims raise common issues that are not shared by

all the represented persons, the Court may approve a person who

satisfies the criteria for approval in article 12 of the Act to act as

the class representative for that sub-class if it consideres that this

shall be conducive for the efficient management of the claims.

(1) Subject to article 16 of the Act, in collective

proceedings —

(a) common issues for a class shall be determined

together;

(b) common issues for a sub-class shall be determined

together; and

(c) individual issues shall be determined in further

hearings.

(2) If the Court directs that the participation of

individual represented persons is necessary in order to determine

individual issues, the class representative shall give notice of the

further hearings to those individual represented persons as directed

by the Court.

(3) The Court may give directions for the procedures

to follow in the further hearings referred to in sub-article

(1) (c) hereof including setting a time within which individual

represented persons may make claims in respect of the individual

issues.

(4) The Court may give judgment in respect of the

common issues and separate judgments in respect of any other

issue.

The Court, on the application of a party or class member,

may issue any decree it considers appropriate with respect to the

conduct of collective proceedings to ensure its fair and expeditious

determination and, for this purpose, may impose such terms on the

parties as it considers appropriate.

The Court, on its own initiative or on the application

of a party or class member, may stay any proceeding related to

the collective proceedings before it, on such terms as it considers

appropriate.

(1) A judgment on the common issues for the

represented persons or a sub-class of represented persons will bind

the represented persons, or those within the sub-class, as the case

may be.

(2) The class representative shall give notice of any

judgment or decree to those represented persons who are bound by

it in a form and manner that is approved by the Court.

(3) Where in its judgement, the Court orders the

defendant to pay compensation, it may order the defendant to

credit the amount due to a specific account held by the class

representative and may give such orders, as it deems necessary,

to the class representative for the effective distribution of that

compensation among the class members.

(1) A class representative may not compromise or

discontinue all or part of a claim in collective proceedings without

the permission of the Court.

(2) The application for permission made under sub-

article (1) hereof shall—

(a) set out the form and manner by which the class

representative proposes to give notice to the represented

persons of the intention to compromise or discontinue all or

part of a claim in the collective proceedings; and

(b) in the case of an application to compromise, set out

the terms of the proposed compromise.

(3) On receipt of an application made under sub-

article (1), the Court will—

(a) set a date for a hearing to determine whether to

approve the compromise or discontinuance; and

(b) issue a decree for the giving of the notice

referred to in sub-article (2)(a) hereof.

(1) A represented person

who objects to the

compromise may, with the permission of the Court, be omitted

from the compromise.

(2) At the hearing to determine the application

for permission to compromise or withdrawal, the Court may—

(a) approve the compromise or discontinuance

on terms it considers to be appropriate;

(b) refuse to approve a compromise unless the

compromise provides an opportunity for represented

persons to notify the class representative that they are to be

omitted from it and sets out the manner and time by

which that notification is to be made; or

(c) order that represented persons be given an

opportunity to notify the class representative that they are

to be omitted from a compromise and the manner and time

by which that notification is to be made.

(3)

A compromise approved by the Court binds

every represented person, or every represented person within

the sub- class, as the case may be, except—

(a) those who have obtained permission of the Court

under sub-article (1) hereof to be omitted from it; and

(b) those who have notified the class representative,

in accordance with sub-article 2(b) or (c) hereof, that they

are to be omitted from it.

(4) If the Court approves the compromise or

discontinuance, the class representative shall give notice

of its approval, in a form and manner that is approved by the

Court, to the represented persons.

(5) If one or more of the represented persons

are to be omitted from the compromise, the Court shall give

directions for the future conduct of the proceedings which may

include provision that the proceedings shall continue as one

or more proceedings between different parties and, for that

purpose—

(a)

order the addition, removal or substitution of

parties;

(b)

order the amendment of the sworn application; or

(c)

make any other order that it considers appropriate.

(1) The provisions of the Code of Organization and

Civil Procedure relating to appeals from judgements and decrees

of the Civil Court, First Hall shall mutatis mutandis apply to

appeals from judgements and decrees delivered under this Act.

(2) A party may appeal to the Court of Appeal from

a decree declaring the proceedings as collective proceedings

only with leave of the Court and sub-article (3) of article 229

of the Code of Organization and Civil Procedure shall apply in

respect thereof.

(3)

An appeal from a judgement of the Court on

behalf of the class or sub-class may only be filed by a class

representative

Provided that if a class representative does not

appeal, any class member may file an application to the Court

of Appeal, either during the time-limit allowed for the appeal

or within ten days following the lapse of the said time-limit, for

leave to act as the class representative to file an appeal.

The period of prescription applicable to a claim

for damages is interrupted in favour of a class member on the

commencement of the collective proceedings but that interruption

shall be deemed inoperative if he withdraws from the collective

proceedings.

(1) Subject to sub-article (2) hereof, costs may be

awarded in favour or against the class representative, but may not

be awarded in favour of or against a represented person who is not

the class representative.

(2) If the Court has approved the appointment of

a class representative for a sub-class, costs associated with

the determination of the common issues for the sub-class may

be awarded in favour of or against that person, and not the class

representative for the whole class.

(3) Costs associated with the determination of

individual issues in accordance with article 15 of the Act may be

awarded in favour of or against the relevant individual represented

persons.

(4) A registered consumer association is exempted

from the payment of Court registry fees according to Schedule A,

Tariff A of the Code of Organization and Civil Procedure upon the

filing of collective proceedings.

(5) In the event that the Court finds against the class

representative that is a registered consumer association, the Court

shall reduce court registry fees against the class representative by

between one tenth and one half of the fees normally due, taking

into account the economic standing of the class representative and

the legal reasons for finding against the class representative.

(6) Where the Court finds that the collective

proceedings are frivolous or vexatious, the Court may award

increased registry costs up to a maximum of two thousand five

hundred euro (€2,500) against the class representative

Provided that where the class representative is a

registered consumer association, it may only be ordered to pay the

full costs.

(7) Without prejudice to the provisions of this Act, the

parties shall be subject to the provisions of Schedule A of the Code

of Organization and Civil Procedure.

The Prime Minister may from time to time make

regulations for the better carrying out of the provisions of this Act

and may, in particular -

(a) extend the application of this Act to other laws by

amending Schedule A to this Act; and

(b) extend the application of article 12(1) of the Act

to other representative bodies.

Article 27A of the Competition Act shall be amended as

(a) in paragraph (b) of sub-article (9) thereof, for the

words “or where separate proceedings have been instituted”

there shall be substituted the words “and interrupted where

separate proceedings have been instituted”; and

(b) immediately after sub-article (10) thereof, there

shall be inserted the following new proviso

“Provided that nothing in this article shall be

interpreted as prejudicing the right of any person who

has suffered damage as a result of an infringement

of articles 5 and, or 9 of this Act and, or Articles 101

and, or 102 of the TFEU occurring before the coming

into force of this Act to file any action in respect of the

said damage under any other law as in force prior to the

coming into force of this Act.”

Schedule A

In accordance with article 3 of the Act, the following constitutes the list of Acts

whereby collective proceedings may be instituted

I.

Competition Act (Cap. 379), and Articles 101 or 102 of the TFEU

II. Consumer Affairs Act (Cap. 378) and those Acts mentioned in article 111

of the Consumer Affairs Act

III.

Product Safety Act (Cap. 427)

Passed by the House of Representatives at Sitting No. 487 of 5th June, 2012.

M ichael F rendo

Speaker

Raymond Scicluna

Clerk to the House of Representatives

€1.44