ACT No. XVI of 2019 An ACT to amend the Competition Act, Cap. 379 and the Consumer Affairs Act, Cap. 378 and other Laws, to extend the competence of the Civil Court (Commercial Section) and to make ancillary and consequential provisions thereto. (commercialsection)

I assent.

(L.S.)

GEORGE VELLA

President

31st May, 2019

ACT No. XVI of 2019

An ACT to amend the Competition Act, Cap. 379 and the Consumer

Affairs Act, Cap. 378 and other Laws, to extend the competence of the

Civil Court (Commercial Section) and to make ancillary and

consequential provisions thereto.

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 Competition Act and

commencement.

Consumer Affairs Act and other Laws (Amendment) Act, 2019.

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

Justice, Culture and Local Government, may by notice in the Gazette

establish, and different dates may be so established for different

provisions of this Act.

Part I

Amendments to the Code of Organization

and Civil Procedure

This Part amends the Code of Organization and Civil Amendments to

Procedure and it shall be read and construed as one with the Code of the

Organization

Organization and Civil Procedure, hereinafter in this Part referred to as and

Procedure.

"the Code".

Sub-article (7) of article 36 of the Code shall be substituted by Amendment of

article 36 of the

the following

Code.

"(7) The Civil Court (Commercial Section) shall take

cognizance of all claims against persons, whether natural or

legal, residing or having their ordinary abode or registered office

in the Islands of Malta and the Islands of Gozo and Comino and

of all other causes, expressly assigned by law to such section of

the Civil Court

Provided that where the Civil Court (Commercial Section)

is to hear causes concerning claims against persons, whether

natural or legal, residing or having their ordinary abode or

registered office in the Islands of Gozo and Comino, it shall hold

its sittings in the building of the Courts of Gozo

Provided further that the provisions of Sub-title IV of Title

I of Book Third of this Code, sub-titled "Of Referees" shall,

mutatis mutandis, apply to matters relating to the Competition Cap. 379.

Act and any regulations made thereunder and the Consumer Cap. 378.

Affairs Act and any regulations made thereunder.".

In paragraph (a) of article 37 of the Code the words "before Amendment of

the Court of Magistrates (Gozo) and the Civil Court, First Hall" shall article

Code.

be substituted by the words "before the Court of Magistrates (Gozo),

the Civil Court, First Hall and the Competition and Consumer Appeals

Tribunal".

Article 38 of the Code shall be amended as follows

Amendment of

article 38 of the

Code.

(a) in sub-article (1) thereof the words "before the Court

of Magistrates (Gozo) sitting in its superior jurisdiction and

before the Civil Court, First Hall" shall be substituted by the

words, "before the Court of Magistrates (Gozo) sitting in its

superior jurisdiction, before the Civil Court, First Hall and

before the Competition and Consumer Appeals Tribunal";

(b) in sub-article (2) thereof, immediately after the

words, "said Court" shall be added the words "or the

Competition and Consumer Appeals Tribunal";

(c) in sub-article (3) thereof, the words "Court of

Magistrates (Gozo) (Superior Jurisdiction) and the Civil Court,

First Hall" shall be substituted by the words "Court of

Magistrates (Gozo) (Superior Jurisdiction), the Civil Court, First

Hall and the Competition and Consumer Appeals Tribunal"; and

(d) in sub-article (6) thereof, the words "the Civil Court

(Commercial Section)." there shall be substituted by the words

"the Civil Court (Commercial Section):" and immediately after

there shall be added the following proviso

"Provided that all causes instituted in terms of the

Competition Act and any regulations made thereunder, the

Consumer Affairs Act and any regulations made

thereunder and the Malta Competition and Consumer

Affairs Authority Act and which are pending before the

Competition and Consumer Appeals Tribunal, on the entry

into force of the Competition Act and Consumer Affairs

Act and other Laws (Amendment) Act, 2019, shall also be

continued before the Civil Court (Commercial Section).".

Part II

Amendments to the Consumer Affairs Act

This Part amends the Consumer Affairs Act and it shall be

read and construed as one with the Consumer Affairs Act, hereinafter

in this Part referred to as "the principal Act".

Article 2 of the principal Act shall be amended as follows

(a)

the definition "Appeals Tribunal" shall be deleted;

(b) immediately after the definition "the Board", there

shall be added the following new definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3

of the Civil Courts (Establishment of Sections)

Order;".

Article 3 of the principal Act shall be substituted by the

following

3. The Director General shall be

"Responsibility

of the Director

responsible for the administration of this Act and

General and

competences of

investigations according to this Act, and for

the Civil Court.

these purposes the Director General shall

exercise the responsibilities vested in the Office

for Consumer Affairs by article 17 of the Malta

Competition and Consumer Affairs Authority

Act and by this Act except where competences

are assigned to the Civil Court by this Act and by

the Malta Competition and Consumer Affairs

Authority Act

Provided that the Director General

may delegate any of his functions and powers to

any officer or employee of the Authority.".

Article 7 of the principal Act shall be amended as follows

Amendment of

article 7 of the

principal Act.

(a) in sub-article (2) thereof the words "requirements in

connection therewith." shall be substituted by the words

"requirements in connection therewith:" and immediately there

after there shall be added the following proviso

"Provided that this is without prejudice to the

competences assigned to the Civil Court by this Act."; and

(b) in sub-article (3)(b) thereof the words "administrative

fine" shall be substituted by the word "penalty".

Article 12 of the principal Act shall be substituted by the Substitution of

article 12 of the

following

principal Act.

" Investigations.

(1) In order to ensure the observance of

the provisions of this Act and any regulations

made thereunder, the Director General shall have

the power to carry out investigations of his own

motion or upon a reasonable allegation in writing,

also from a qualified entity, of an infringement of

the provisions of this Act and any regulations

made thereunder.

(2) Upon

commencing

investigations

concerning an alleged infringement of this Act or

of any regulations made thereunder, the Director

General shall notify in writing the person

concerned that an investigation has commenced,

informing the person concerned of the nature of

the alleged infringement.

(3) The person concerned shall present his

submissions to the Director General within twenty

days from the notification of the commencement

of investigations.

(4) During the investigations, the Director

General, to discharge his functions under this Part,

may also adopt the power of entry of inspection

and the power to request and obtain information

according to articles 103 and 104, and the

p r o v i s i o n s of a r t i c l e 1 0 5 s h a l l a l s o a p p l y

accordingly.

(5) Where, upon the conclusion of an

investigation, it appears prima facie to the

Director General, that an infringement of a

provision of this Act or of any regulations made

thereunder has occurred, the Director General

shall institute judicial proceedings against the

person concerned before the Civil Court by means

of a sworn application

Provided that the Director General may,

instead of proceeding judicially, in those instances

referred to in article 12A, seek an undertaking

from the trader in terms of the said article 12A.".

11. Article 12A of the principal Act shall be substituted by the

Substitution of

article 12A of

following

the principal

Act.

" Undertakings.

(1) Upon the conclusion of an

investigation according to article 12(5), where

it appears prima facie to the Director General,

that a trader has engaged in conduct that

constitutes an infringement of, or a failure to

comply with, any regulations made under

article 7 or under the provisions of article 9, or

an infringement or a failure to comply with the

provisions of articles 44 to 47 and 51A to 51E,

the Director General may, at his discretion,

instead of instituting judicial proceedings

before the Civil Court against the trader

according to article 12(5), 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, or for any

longer period that the Director General may

establish.

(2) The undertaking shall contain such

other terms and conditions as may be agreed,

including, where the circumstances so warrant,

the provision of compensation for aggrieved

consumers, and, or the restitution of any money

or property given by the consumers.

(3) Where the Director General deems it

appropriate, he may publish the said undertaking

in at least two daily newspapers, and the

publication expenses shall be borne by the

trader.

(4) The Director General shall maintain a

register of undertakings made under this article,

which register shall be kept at the principal

office of the Office and the register may be seen

by any person at such times as may be

established by the Director General.

(5) Where in the opinion of the Director

General a trader has not abided by the

undertaking, the Director General shall file a

sworn application before the Civil Court

requesting that Civil Court to find the trader

liable of having infringed the undertaking, and to

impose a penalty according to article 106A

Provided that the trader shall in any

case remain bound by the undertaking for the

remaining period.".

12. Article 12B of the principal Act shall be amended as follows

Amendment of

article 12B of

the principal

(a) in sub-article (1) thereof the words "Without

Act.

prejudice to article 12A," shall be substituted by the words

"Without prejudice to article 12,"; and

(b) sub-article (2) thereof shall be substituted by the

following

"(2) The Director General shall, within forty-five

days after the day on which he receives the complaint,

publish a response stating how he proposes to deal with the

complaint, and in particular whether an investigation will

be initiated.".

Immediately after article 12B of the principal Act there shall

be added the following new PART IIA and new articles

"PART IIA

Judicial proceedings before the Civil Court

and the Court of Appeal

12C. (1) The sworn application referred to in

article 12(5) shall

(a) provide the facts that have

brought the Director General to conclude that

prima facie there is an infringement of the

provisions of this Act and of the regulations

made thereunder;

(b) include the request of the

Director General for a declaration of the

Civil Court that the person concerned,

against whom the judicial proceedings are

instituted, has infringed the provisions of this

Act and of the regulations made thereunder

and is liable for such infringement; and

(c) contain a request by the Director

General to the Civil Court for

(i) the imposition of a penalty

on the defendant according to article

106A for each infringement, and, or

(ii) the issue of a compliance

order with regard to the defendant, and,

or

(iii) any other remedy as

contemplated in this Act, and, or

(iv) any other relevant order

that may be necessary according to the

circumstances of the case

Provided that the provisions of article 156

of the Code of Organization and Civil Procedure

shall, where applicable, also apply to the sworn

application.

(2) The sworn application shall also be

notified to any qualified entity that had alleged the

infringement according to article 12(1).

(3) The person concerned shall, within twenty

days from the notification to him of the sworn

application, file a sworn reply, and the provisions

of article 158 of the Code of Organization and

Civil Procedure shall, mutatis mutandis, apply in

this case.

12D. In judicial proceedings, instituted by the

powers of the

Civil Court. Director General following investigations of

commercial practices as defined in article 51A that

appear to be unfair in terms of the provisions of

Part VIII, the Civil Court may, immediately after

the conclusion of the written pleadings

(a) require the defendant to furnish

evidence as to the accuracy of factual claims

in relation to a commercial practice if, taking

into account the legitimate interest of the

defendant and any other party to the

proceedings, such a requirement appears

appropriate on the basis of the circumstances

of the particular case; and

(b) consider factual claims as

inaccurate if the evidence demanded in

accordance with paragraph (a) of this article,

is not furnished or is deemed insufficient by

the Civil Court.

12E. (1) In cases of urgency due to the risk of

immediate and serious harm to the collective

interests of consumers, the Director General, may

at any stage prior to the conclusion of an

investigation initiated according to article 12, file

an application before the Civil Court requesting

that interim measures are issued for such period of

time to be established by the Civil Court, so that

the person concerned remedies the situation.

(2) The sworn application shall be served on

the person concerned, who shall within eight days

from the notification thereof, file his reply to

propose any remedies or to contest the request for

interim measures providing the reasons thereto.

(3) The Civil Court shall decide the

application with urgency either in camera or after

hearing the advocates of the parties, if it deems fit,

provided that not more than one sitting may be

fixed for such purpose.

(4) The decree of the Civil Court ordering the

issue of interim measures shall be enforceable

upon its delivery, shall remain in force for the

period of time established by the Civil Court, and

no appeal shall lie from the decree

Provided that nothing precludes the Court

from revoking any interi m m easures, from

renewing the same interim measures for further

periods or from modifying the said interim

measures in so far as this is necessary and

appropriate, according to the circumstances of the

case, upon an application of the Director General

or by the person concerned.

(5) Any person who infringes the decree

ordering the interim measures shall be liable to a

penalty according to article 106A.

12F. Where the Civil Court delivers a

Order by the

judgement finding an infringement of this Act or of

any regulations made thereunder, the Civil Court

may, without prejudice to the provisions of article

106A and to any other remedy provided for under

this Act, order the restitution of any money or

property given by the consumer.

12G. (1) Without prejudice to the provisions

of article 106A and of sub-article (8), whether or

not at the request of the Director General, or of a

qualified entity, the Civil Court may, at its

discretion, where it deems it reasonably

appropriate or necessary in the public interest, in

its judgement finding the defendant liable of

infringing the provisions of this Act or of the

regulations made thereunder, issue a compliance

order

(a) on the defendant, requiring:-

(i) the deletion or alteration of

terms in a consumer contract that the

Civil Court considers to be unfair to

consumers in accordance with the

provisions of Part VII of this Act; and

(ii) the incorporation of terms

in a consumer contract that the Civil

Court considers to be necessary for the

better information of consumers, or for

preventing a significant imbalance

between the rights and obligations of

the parties, and this to the benefit of

consumers;

(b) requiring the defendant 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 VIII of

this Act are complied with;

(c) requiring the defendant to take

any measures specified in the compliance

order, including the making of a corrective

statement, within the time specified in the

compliance order to ensure that this Act and

any regulations made thereunder or any law

dealing with consumer rights and protection

as may be designated by Order in the Gazette

by the Minister acting after consulting the

Council, are complied with; and

(d) requiring the defendant to cease

and desist from committing an offence or an

infringement of this Act or of any regulations

made thereunder or of any other law dealing

with consumer rights and protection as may

be designated by Order in the Gazette by the

Minister after consulting the Council.

(2) The qualified entity requesting a

compliance order in terms of sub-article (1)

(i) shall

file

a

sworn

application, that is to be notified to all

the parties to the judicial proceedings;

(ii) shall satisfy the Civil Court

that the qualified entity 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

cessation was not achieved within two

weeks from the request for cessation;

and

(iii) shall not be required to

have or to prove an interest in, or to be

affected by, the matter or act in issue.

(3) Where the qualified entity is from another

Member State, the Civil Court shall treat the list of

qualified entities published by the European

Commission as conclusive proof of the legal

capacity of the qualified entity to present such

written application in Malta

Provided that, as far as applicable, the

provisions of article 180 of the Code of

Organization and Civil Procedure, shall, mutatis

mutandis, apply.

(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 Civil Court shall order the

Director General, at the request of the qualified

entity concerned, to 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.

(5) Any person who fails to comply with a

compliance order issued by the Civil Court, shall

be liable to a penalty according to article 106A(2).

(6) Where a compliance order has been

requested, the Civil Court shall in all cases act as

expeditiously as possible.

(7) Once issued by the Civil Court, a

compliance order shall come into force with

immediate effect.

(8) When requesting the issue of a compliance

order, the Director General shall not have to prove

(a) actual loss or damage, or

(b) actual recklessness, negligence or

fault on the part of the defendant.

(9) Prior to issuing a compliance order, the

Civil Court shall, whenever it deems it possible

and reasonable, request the defendant to declare

whether he is prepared to comply voluntarily with

this Act or with any regulations made thereunder

or with 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.

(10) The Civil Court may, in its judgement, in

order to eliminate or reduce the continuing effects

of any non-observance of any provisions of this

Act or any 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, order the defendant

(a) to publish a copy of the

compliance order, in full or in part and in

such form as the Civil Court deems 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, or of

any 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

Provided that with regard to the

publication referred to in this sub-article, the

Civil Court shall order that this publication is

made in at least two daily newspapers and if

appropriate, in any other medium of

communication, at the expense of the

defendant, after the lapse of twenty days

from the judgement and provided that no

appeal has been filed

Provided further that where such

publication is not effected as aforesaid by the

defendant, the Civil Court shall authorize the

Director General to effect the publication

himself, and to recover from the defendant

any expenses incurred.

12H. (1) Proceedings before the Civil Court

shall be held in public with due regard to the

protection of confidential information or of

business secrets

Provided that the person concerned, or the

Director General, or the complainant may request

the Civil Court to be heard behind closed doors

where the submissions to be made or the evidence

to be produced is of a confidential nature or

contains business secrets

Provided further that for the purposes of this

provision a confidential and a non-confidential

version of any written observations and

documentary evidence shall be produced and the

Civil Court shall verify the confidentiality or

otherwise of the information submitted.

(2) Before giving its judgment, the Civil

Court may have recourse to the judgments of the

Court of Justice of the European Union, to the

relevant decisions and, or statements of the

European Commission, including interpretations of

the European Regulations and Directives relative

to consumer protection and may also refer to its

decisions and to the decisions of the Competition

and Consumer Appeals Tribunal.

(3) Where the Civil Court has found the

defendant liable of an infringement or of

infringements of this Act or of any regulations

made thereunder, it shall impose a penalty

according to article 106A for each infringement.

(4) Subject to the right of appeal established

in article 12I, the decisions of the Civil Court shall

be final and binding.

(5) Subject to the provisions of this Act, the

provisions of the Code of Organization and Civil

Procedure shall, mutatis mutandis, apply to all

judicial proceedings instituted according to this

Act, before the Civil Court and the Court of Appeal

and to the enforcement of judgements.

12I. The Director General and, or any party to

the proceedings before the Court, who feels

aggrieved by the judgment of the Civil Court, may

appeal before the Court of Appeal, on any point of

law and, or of fact, by means of an application filed

in the registry of the Court of Appeal within twenty

days from the date of the judgment of the Civil

Court

Provided that the Court of Appeal shall

appoint the case for hearing by not later than six

months from when the appeal application is served

on all the parties.".

Immediately after article 12I of the principal Act there shall Addition of new

be added the following new title

Criminal proceedings and related provisions".

Article 14A of the principal Act shall be substituted by the Substitution of

14A. Where the court finds that a person has

committed an offence under this Act or under any

regulations made thereunder, the Court may,

without prejudice to any other order that it may

make under any other law

(a) order the restitution of any money,

property or other consideration given by the

consumer;

(b) make an order of specific

performance against that person; and

(c) make any other order the court

considers appropriate.".

Articles 14B and 15 of the principal Act shall be deleted.

Article 43D of the principal Act shall be substituted by the Substitution of

(1) Except where competences are

"Role of the

Council as the

assigned to the Civil Court by this Act, the

Council shall be the competent ADR regulatory

authority, and in the exercise of such a role the

authority and

Council shall independently and autonomously

perform the following functions

(a) determine whether an entity is

qualified to act as an ADR entity;

(b) monitor and investigate the

operations and conduct of ADR entities and

of traders;

(c) following investigations of ADR

entities and, or of traders that indicate prima

facie that there are infringements of the law

and of their obligations at law, institute

judicial proceedings according to Part IIA

before the Civil Court, in so far as this is

applicable.

(2) Unless provided otherwise by the law, the

Council in the exercise of its functions under this

Part shall regulate its own procedure.

(3) The Council shall exercise its regulatory

functions however so described through its

Chairman and, or through one or more of such

public officers and, or public entity or entities as

may from time to time be authorized by the

Council for that purpose

Provided that no such functions shall be

exercised by any entity which is or may have been

designated to act as residual ADR entity, or else is

or was an ADR entity.".

18. Article 43E of the principal Act shall be substituted by the

following

" Application

The provisions of articles 102, 103,

of certain

104 and 105, in so far as they relate to the

investigative

exercise of the powers of investigation of the

powers

provisions of

Director General in the performance of his

Part XII.

regulatory functions, shall similarly apply to

the Chairman of the Council when acting to

monitor and investigate ADR entities and

traders.".

19. Article 43F of the principal Act shall be substituted by the

" Application

With regard to the functions of the

of Part IIA

Council established in article 43D(1)(c) the

with regard to

institution of judicial proceedings by the

proceedings

Council and the relative judicial process shall

Civil Court.

be according to PART IIA before the Civil

Court, in so far as this is applicable and

excluding any references therein to qualified

entities.".

20. Article 43G of the principal Act shall be substituted by the Substitution of

The Minister may make regulations on

any aspect relating to consumer to trader

alternative dispute resolution procedures, on the

role and functions of the Council under this Part,

and for the better functioning of such ADR

procedures in Malta, including the power of the

Council to request the Civil Court to impose

penalties not exceeding fifty thousand euro

(€50,000) and, or not exceeding one hundred euro

(€100) for each day of non-compliance by the

decision of the Civil Court, and the procedure to be

followed by the Council in the investigative

process and in any subsequent judicial proceedings

before the Civil Court.".

21. Articles 94 to 101 of the principal Act shall be deleted.

22. The title of ‘Part XII’ of the principal Act shall be substituted Substitution of

by the new title "Investigative powers".

23. In paragraph (c) of article 105 of the principal Act the words Amendment of

"refuses or fails to furnish information as required under this Part or article

else" shall be deleted.

24. Immediately after article 105 there shall be added the Addition of new

following new Part XIIA

"PART XIIA

Offences, Penalties and related provisions

106. A person found guilty of an offence

against this Act or of any regulation made

thereunder shall, unless a different punishment is

prescribed therefor, on conviction be liable to a fine

(multa) of not less than four hundred and seventy

euro (€470) and not more than forty-seven thousand

euro (€47,000).

106A. (1) The Civil Court shall impose a

penalty upon any person who is found to have

infringed a provision of this Act or of any regulation

made thereunder for each infringement.

(2) A penalty imposed for an infringement

under sub-article (1) shall not be less than four

hundred and seventy euro (€470) and not more than

forty-seven thousand euro (€47,000)

Provided that in the case of non-compliance

with a compliance order, the Civil Court shall also

impose a daily penalty of not less than one hundred

and twenty euro (€120) and of not more than two

hundred and thirty euro (€230) for each day of non-

compliance

Provided further that in the case of non-

compliance with the decree of the Civil Court

ordering an interim measure, the Civil Court shall

also impose a daily penalty of not less than one

hundred and twenty euro (€120) and of not more than

two hundred and thirty euro (€230) for each day of

non-compliance.

(3) Without prejudice to the rules that the Civil

Court shall apply when determining the penalties in

respect of infringements of the articles referred to in

the Second Schedule, in determining the amount of a

penalty in respect of infringements of any other

provision of this Act, of infringements of regulations

made under this Act and of infringements of

provisions of other laws administered by the Director

General, the Civil Court shall in exercising its

discretion ensure that the penalties imposed are

effective, proportionate and dissuasive.".

Deletion of

25. Articles 107, 107A, 108, 109, 110B, 110C, 110D, 110E, 110F, articles 107,

107A, 108, 109,

110G and 110H of the principal Act shall be deleted.

110B, 110C,

110D, 110E,

110F, 110G and

110H of the

principal Act.

26. Part XIII of the principal Act shall be substituted by the Substitution of

Part XIII of the

following

principal Act.

"PART XIII

Miscellaneous

111. The Prime Minister may, by order in

Prime Minister

may extend

the Gazette, direct that the provisions of articles

operation of

articles 10, 12,

10, 12, 12A and Parts IIA, IIB, XII and XIIA

12A and Parts

IIA, IIB, XII and shall apply to offences and, or infringements

XIIA to other

under any other law administered by the

laws.

Director General, or under any law whereby

maximum prices for goods or services are fixed,

or whereby minimum standards are fixed for

goods or services.

112. Participants, other than those who

Refund of

monies paid.

esta blish, operate or promote 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.

113. No action shall lie against the Director

Exemption from

liability.

General, or any of his officers or any authorised

person acting under his discretion or control, or

against any member of the Council, for any act

or omission in connection with this Act or any

regulations made thereunder, unless such act or

omission was done in bad faith.

114. The institution of judicial proceedings

Prescription for

judicial

proceedings and and the prosecution of an offence under this Act

for offences.

or any regulations made thereunder, shall be

prescribed by the lapse of five years from the

date on which the infringement or the offence is

alleged to have been committed.

115. No precautionary warrant or other

No precautionary

warrant.

order under any other law shall be issued by any

court or tribunal restraining or restricting the

Director General in the exercise of his functions

under this Act and under the Malta Competition

and Consumer Affairs Authority Act.".

27. The First Schedule to the principal Act shall be amended as

follows

(a) in paragraph 4 thereof, the words "/her" and "/she/it"

shall be deleted; and

(b)

in paragraph 5 thereof, the word "/she" shall be

deleted.

28. The Second Schedule to the principal Act shall be substituted

by the following

"SECOND SCHEDULE

(Article 106A(3))

Penalties

1. In determining the amount of the penalty specified in article

106A, in respect of the infringements of the articles referred to

in this Schedule, and without prejudice to the provisions of

article 106A(3), the Civil Court shall also be guided by the

following considerations.

Infringements under article 51F

2. For each infringement under article 51F, the basic amount of

the penalty shall be two thousand three hundred and fifty euro

(€2,350)

Provided that the Civil Court may, in establishing the penalty,

take into account circumstances that may lead to an increase

or decrease in the basic amount

Provided further that the Civil Court shall do so on the basis

of an overall assessment which takes into account all the

relevant circumstances.

3. The Civil Court may impose a higher penalty 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

infringement.

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 one

thousand seven hundred and fifty euro (€1,750) and

not more than four thousand six hundred and fifty

euro (€4,650);

in the case of a second or subsequent infringement,

the basic amount shall be increased by two thousand

three hundred and fifty euro (€2,350) 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 one

thousand seven hundred and fifty euro (€1,750) and

not more than four thousand six hundred and fifty

euro (€4,650);

where the practice or scheme constituting the

infringement is specifically targeting vulnerable

consumers, the basic amount shall be increased by

two thousand three hundred and fifty euro (€2,350);

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 one thousand seven hundred and fifty

euro (€1,750) and not more than four thousand six

hundred and fifty euro (€4,650).

5. The basic amount of the penalty may be decreased where the

Civil Court finds that there are mitigating circumstances, in

particular

where the defendant provides evidence that he

terminated the unfair commercial practice

constituting the infringement as soon as the Director

General commenced investigations under article 12,

the basic amount shall be decreased by not more

than twenty per centum;

-

where the defendant provides evidence that he has

taken adequate steps to reduce the negative effects of

the infringements, the basic amount shall be

decreased by not more than ten per centum.

6. The final amount of the penalty for each and every

infringement, shall not, in any event, exceed forty-seven

thousand euro (€47,000) or be lower than four hundred and

seventy euro (€470).

Infringements under article 12A

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

the penalty shall not be less than four thousand six hundred

and fifty euro (€4,650) and not more than eleven thousand six

hundred and fifty euro (€11,650).

Infringements under article 12E

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

the penalty shall not be less than four thousand six hundred

and fifty euro (€4,650) and not more than eleven thousand six

hundred and fifty euro (€11,650)

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

of the Civil Court ordering an interim measure, the Civil Court

shall also impose a daily penalty of not less than one hundred

and twenty euro (€120) and of not more than two hundred and

thirty euro (€230) for each day of non-compliance.

Infringements under article 12G

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

the penalty shall not be less than four thousand six hundred

and fifty euro (€4,650) and not more than twenty-three

thousand three hundred euro (€23,300)

Provided that in the case of non-compliance with a

compliance order, the Civil Court shall also impose a daily

penalty of not less than one hundred and twenty euro (€120)

and of not more than two hundred and thirty euro (€230) for

each day of non-compliance.".

Part III

Amendments to the Competition Act

29. This Part amends the Competition Act and it shall be read and Amendments to

construed as one with the Competition Act, hereinafter in this Part the

Competition

Act.

referred to as "the principal Act".

30. Article 2 of the principal Act shall be amended as follows

Amendment of

article 2 of the

principal Act.

(a)

the definition "Appeals Tribunal" shall be deleted;

(b) immediately after the definition "association of

undertakings" there shall be added the following new definition

" "Authority" means the Malta Competition

and Consumer Affairs Authority established by

article 3 of the Malta Competition and Consumer

Affairs Authority Act;";

(c) immediately after the definition "the Board" there

shall be added the following new definition

" "Court" means the Civil Court

(Commercial Section) established by article 3

of the Civil Courts (Establishment of Sections)

Order;"; and

(d)

the definition "President" shall be deleted.

31. Article 3 of the principal Act shall be substituted by the Substitution of

article 3 of the

following

principal Act.

3. The Director General and the

"Responsibility

of the Director

Court shall have the exclusive

General and the

Court.

competence to apply the provisions of

this Act and, for this purpose, the

Director General shall exercise the

responsibilities vested in the Office for

Competition under article 14 of the Malta

Competition and Consumer Affairs

Authority Act and under this Act except

where competences are assigned to the

Court in this Act and in the Malta

Competition and Consumer Affairs

Authority Act

Provided that the Director

General may delegate any of his powers

to any officer or employee of the

Authority.".

32. In sub-article (1) of article 8 of the principal Act the words

"general" after the word "Board" shall be deleted and the word "form"

shall be substituted by the word "from".

33. Sub-articles (3) and (5) of article 11A of the principal Act

shall be deleted and sub-article (4) thereof shall be renumbered as sub-

article (3).

34. Article 12 of the principal Act shall be amended as follows

(a) in the proviso to sub-article (2) thereof the words

"duty of professional secrecy." shall be substituted by the words

"duty of professional secrecy:" and immediately thereafter there

shall be added the following proviso

"Provided further that during the course of any

investigation, when a person, undertaking or association of

undertakings answers to questions raised by the Office

both in writing and verbally, the person, undertaking or

association of undertakings concerned shall not be obliged

to provide any answer which might involve an admission

on its part of the existence of an infringement of articles 5,

and, or 9 of the Act, and, or Articles 101 and, or 102 of the

TFEU but it is in any event obliged to answer factual

questions and to provide documents.";

(b) sub-article (3) thereof shall be substituted by the

following

"(3) When sending a request for information to an

undertaking or association of undertakings, the Director

General shall state the legal basis and the purpose of the

request, specify what information is required and fix a time

limit within which the information is to be provided.";

(c) in sub-article (6) thereof the words "the Appeals

Tribunal and before any court of law:" shall be substituted by the

words "the Court and before any other court of law:";

(d) sub-article (7)(a) thereof shall be substituted by the

following

"(7)(a) The Director General and, or his officers and,

or any other person authorised or appointed by the Director

General duly authorised by a warrant issued by the

Magistrate may, for the purpose of any investigation under

this article, enter into and search any premises, land or

means of transport where the Director General has reason

to believe that information relevant to the investigation

may be found, and in the course of any such search the

Director General and, or his officers, shall be empowered

(i) inspect and examine any object or

document;

(ii) seize and confiscate any object or

document, or take extracts or copies of documents;

(iii) require any information which is stored in

a computer or any other object or device which is

accessible from the premises, land or means of

transport and which the Director General and, or his

officers consider relevant to the investigation, to be

delivered in a form in which it can be taken away and

in which it is visible and legible;

(iv) order the non-removal of any object or

documents from any such premises, land or means of

transport;

(v) close and seal any or all parts of such

premises, land or means of transport, or put any

object under seal;

(vi) ask any representative or member or staff

of the undertaking or association of undertakings

concerned for an explanation of any fact or document

relating to the subject-matter and purpose of the

inspection or to state to the best of their knowledge

and belief where the documents may be found and

record the answers;

(vii) take any steps which appear to be

necessary to preserve any object or document or to

prevent any interference with such object or

document.";

(e) paragraph (b) of sub-article (7) thereof shall be

substituted by the following

"(b) The Magistrate, in deciding whether to issue a

warrant under sub-article (7)(a) shall ensure that the

coercive measures envisaged are neither arbitrary nor

excessive, having regard, in particular, to the gravity of the

suspected infringement, to the importance of the evidence

sought, to the involvement of the undertaking or

association of undertakings concerned and to the

reasonable likelihood that any object, document or record

relating to the subject matter of the inspection are kept in

the premises, land or means of transport for which the

warrant is requested

Provided that the Magistrate, in deciding

whether to issue a warrant under sub-article (7)(a), may

also take into account the possibility that in the case where

it is the Director General who would request these objects,

documents or records, these would not be produced, but

would instead be concealed, removed, tampered with or

destroyed.";

(f)

sub-article (8) thereof shall be amended as follows

(i) paragraph (a) thereof shall be substituted by the

following

"(a) The warrant mentioned in sub-article

(7)(a) shall specify the subject-matter, purpose of the

inspection, the date on which the inspection is to

begin and the relative penalties provided for in article

21.";

(ii)

paragraph (b) thereof shall be substituted by

the following

"(b) The powers conferred by article 12(7)(a)

are to be exercised by the Director General and, or

his officers and, or any person authorised or

appointed by the Director General on production of a

warrant issued under that article.";

(iii) paragraph (c) thereof shall be substituted by the

following

"(c) The Director General and, or any of

his officers and, or any person authorised or

appointed by the Director General entering

premises, land or means of transport by virtue

of a warrant issued under sub-article (7)(a) may

take with them such equipment as appears to

them to be necessary.";

(iv) paragraph (d) thereof shall be deleted;

(g) paragraph (a) of sub-article (9) thereof shall be

substituted by the following

"(a) In the course of any search as is referred to in

sub-article (7), the Director General and, or any of his

officers and, or any person authorised or appointed by the

Director General may request the assistance of the Police

and in such case the Police shall require a warrant issued

by the Magistrate to assist the Director General in the

search.";

(h) sub-article (11) thereof shall be substituted by the

following

"(11) In the course of an inspection under this

article, the undertakings or association of undertakings or

persons subject to the inspection may be assisted by legal

counsel of their choice

Provided that officers may wait a reasonable time for

the legal counsel to arrive before starting the inspection

and during this time, officers may take any reasonable

measures to prevent any potential tampering with evidence

or to prevent any potential communication by which other

undertakings will be informed that an investigation is

taking place

Provided further that the right of such assistance may

delay but shall not have the effect of suspending the

inspection."; and

(i) sub-article (13) thereof shall be substituted by the

following

"(13) No search may be commenced on any

premises, land or means of transport after seven o'clock in

the evening and before seven o'clock on the next following

morning, unless there is reason to believe that delay could

cause the loss of information and the search is expressly

authorised by the Magistrate, to take place between the

said times.".

35. Article 12A of the principal Act shall be substituted by the

following

" Contents of

12A. (1) Where,

following

an

the sworn

investigation, the Director General considers that

application.

an infringement of articles 5 and, or 9 of this Act

and, or an infringement of Articles 101 and, or 102

of the TFEU may have occurred, he shall file a

sworn application in Court.

(2) The sworn application mentioned in sub-

article (1) shall

(a) Set the facts which led the

Director General to find a suspected

infringement of articles 5 and, or 9 of the Act

and, or a suspected infringement of Articles

101 and, or 102 of the TFEU.

(b) Where appropriate, contain a

request by the Director General for the Court

to issue a judgement finding an infringement

of articles 5 and, or 9 of this Act and, or an

infringement of Articles 101 and, or 102 of

the TFEU against the undertaking and, or

association of undertakings concerned.

(c) Contain a request by the Director

General for the Court to impose a penalty,

and, or any other remedy on the undertaking

and, or association of undertakings concerned

as contemplated in this Act

Provided that the Director General may

also indicate a specific amount of the penalty

either in its sworn application or by a note

presented in Court during proceedings

Provided further that the provisions of

article 156 of the Code of Organization and

Civil Procedure shall, where applicable, also

apply to the sworn application.

(3) In addition to the above, the Director

General may also include a report in the Maltese or

English language with the findings of the

investigation carried out by him.

(4) Without prejudice to the provisions of

article 12A(1), the Director General may also file a

sworn application requesting the imposition of a

penalty on the undertaking, and, or association of

undertakings concerned in all the other instances

pursuant to the provisions of article 21.

(5) The undertaking and, or association of

undertakings against whom the sworn application is

served, shall file by no later than twenty days from

date of service, a sworn reply and the provisions of

article 158 of the Code of Organization and Civil

Procedure shall, mutatis mutandis, apply in this

case.

(6) During court proceedings, the undertaking

and, or association of undertakings concerned in

receipt of a sworn application, shall be entitled

upon a request to this effect in their sworn reply, to

h a v e a c c e s s t o t h e fi l e o f t h e i n v e s t i g a t i o n

concerning their case, without prejudice to the non-

disclosure of information or documents identified

by the Director General as containing business

secrets or other confidential information, or of

internal documents of the Director General or of the

Competition Authorities of other Member States.

The Director General shall provide access to the file

of the investigation at any time prior to the

conclusion of his evidence.

(7) In the exercise of his responsibilities, the

Director General shall have recourse to the

judgements of the Court of Justice of the European

Union, and to relevant decisions and statements of

the European Commission including interpretative

notices on the relevant provisions of the TFEU and

secondary legislation relative to competition and

may have recourse to his decisions and to those of

the Competition and Consumer Appeals Tribunal

and the Commission for Fair Trading.".

36. Article 12B of the principal Act shall be substituted by the Substitution of

following

" Settlement

12B. (1) The Director General together with

procedure.

any undertaking and, or association of

undertakings shall have the right to demand,

either during the investigation before the Office

or at a later stage when the Director General files

a sworn application against the undertaking and,

or association of undertakings concerned that the

investigation or the proceedings before the Court,

as the case may be, are terminated by means of

the settlement procedure which includes the

imposition of a penalty by the Court, as provided

for in the following provisions of this article.

(2) The termination of the investigation

before the Office or the termination of

proceedings before the Court by means of

settlement, shall be granted by virtue of a

judgement delivered by the Court upon the

demand made jointly by the Director General and

any undertaking, and, or association of

undertakings concerned, where the Director

General and the undertaking, and, or association

of undertakings concerned agree that the

investigation before the Office or the proceedings

befor e t he Court, as the case ma y be, are

terminated by means of the settlement procedure,

which includes the imposition of a penalty by the

said Court

Provided that not all undertakings and

or, association of undertakings which are under

investigation or which are subject to proceedings

before the Court must agree to submit to a

settlement procedure.

(3) The joint demand mentioned in sub-

article (2) shall be made by means of a joint

application filed in Court

Provided that the Court must be satisfied

that all the requirements of sub-article (7) are

reflected in the joint application

Provided further that after the Court

considers that the requirements of sub-article (7)

have all been satisfied, the Court shall appoint a

sitting to confirm that the undertaking, and, or

association of undertakings concerned are not

c o n t e s t i n g t h e c o n t e n t s of t h e s e t t l e m e n t

submissions and that all the parties concerned

express their unconditional willingness to

terminate the investigation before the Office or

the proceedings before the Court by means of the

settlement procedure, after which sitting, the

Court shall pronounce judgement on the basis of

the joint application.

(4) In the course of an investigation

concerning an alleged infringement of articles 5

and, or 9 of the Act and, or an alleged

infringement of Articles 101 and, or 102 of the

TFEU, the Director General may prior to the

filing of a sworn application in Court pursuant to

article 12A of the Act, if he deems it appropriate

for the expeditious and efficient conclusion of the

investigation, invite all, some or one of the

undertakings concerned and, or the association of

undertakings concerned to indicate in writing,

within the time limit set by him, whether they are

prepared to engage in settlement discussions with

a view to possibly introducing settlement

submissions

Provided that, the Director General shall

not be obliged to take into account the replies

received after the expiry of that time limit

Provided further that, at any time during

the course of an investigation, any undertaking

and, or association of undertakings concerned

may also request to engage in settlement

discussions with the Director General

Provided further that, the decision

r e g a r d i n g t h e i n i t i a t i o n o f th e se t t l e m e n t

discussions falls within the exclusive competence

of the Director General.

(5) Should the Director General ascertain

t h a t s u ff i c i e n t p r o g r e s s i n t h e s e t t l e m e n t

discussions have taken place, the Director

General shall invite the undertaking and, or

association of undertakings c oncerned to

introduce their settlement submissions by a joint

application to be filed before the Court within a

time limit as set by the Director General with a

view to conclude the settlement procedure

Provided, that before the Director

General sets a time limit to introduce their

settlement submissions, the undertaking and, or

association of undertakings concerned may be

informed of the main elements of the suspected

infringement, consisting of

(i) the evidence found;

(ii) the legal assessment of the

facts; and

(iii) the specific amount of the

penalty to be requested by the Director

General in the joint application

Provided further that before the Director

General sets a time limit for the undertaking and,

or association of undertakings to introduce their

settlement submissions, the undertaking and, or

association of undertakings concerned may have

limited access to the file of the investigation

concerning their case which is granted only to the

extent that the Director General deems reasonable

in view of the objectives of the settlement

procedure. If access to the file is granted, the

Director General shall provide partial access to

the case file by providing non-confidential

versions of any specified accessible document

listed in the case file at that point in time

Provided further that before the Director

General sets a time limit for the undertaking and,

or association of undertakings to introduce their

settlement submissions, the undertaking and, or

association of undertakings concerned shall be

given the opportunity to present their views on

the alleged infringement and make observations

Provided further, that if the undertaking

and, or association of undertakings fails to submit

the settlement submissions within the time limit

set by the Director General, it shall be considered

that the undertaking, and, or association of

undertakings concerned has withdrawn from the

settlement procedure.

(6) The documents and the information

exchanged between the Director General and the

undertaking and, or association of undertakings

concerned during the settlement procedure are

confidential

Provided that the information given

pursuant to sub-article (5) shall be confidential

vis-à-vis third parties, save where the Director

General has given a prior explicit authorization

for disclosure

Provided further that the exchanged

documents will only be accessible to other

undertakings and, or association of undertakings

which are under investigation or which have been

served with a sworn application pursuant to

article 12A, if the lack of access to these

documents would hinder the rights of defence of

the said undertaking and, or association of

undertakings concerned.

(7) The settlement submissions which are to

be included in the joint application shall contain a

voluntary statement by the undertaking and, or

association of undertakings concerned containing

the following information

(a) a statement by the undertaking

and, or association of undertakings

concerned, clearly and unequivocally

admitting their participation in the

infringement as well as their liability

regarding articles 5 and, or 9 of the Act and,

or Articles 101 and, or 102 of the TFEU;

(b) a factual and brief description of

the conduct of the undertaking and, or the

association of undertakings concerned, the

objective of the conduct and the way in

which it was carried out, its duration and

the extent in which the undertaking and, or

association of undertakings were involved;

(c) a statement of the undertaking

and, or association of undertakings

concerned declaring that they accept the

maximum amount of the penalty that is

being requested by the Director General in

the joint application;

(d) a statement of the undertaking

and, or association of undertakings

concerned to the effect that they were

sufficiently informed by the Director

General regarding the main elements of the

suspected infringement contained in sub-

article (5) and a declaration of the

undertaking and, or association of

undertakings that they were given sufficient

opportunity to be heard and to make their

views known to the Director General;

(e) a statement of the undertaking

and, or association of undertakings

concerned that they will waive their right to

obtain further or full access to the file of the

investigation concerning their case;

(f) a statement of the undertaking

and, or association of undertakings

concerned containing its waiver of its right

to appeal or challenge in any way the

settlement procedure or the judgement of

the Court including the penalty; and

(g) a statement of the undertaking

and, or association of undertakings

concerned that it agrees with the contents of

the settlement submissions and that it

agrees that a joint application is filed in

Court with the Director General to

terminate the investigation or the

proceedings as the case may be, by means

of settlement, and to request the Court to

deliver a judgement according to the

settlement submissions

Provided that together with the

settlement submissions the joint application

shall also include a statement by the

Director General

(i) agreeing

with

the

settlement submissions of the

undertaking and, or association of

undertakings concerned;

(ii) specifying the amount of

the penalty he is requesting to be

imposed on the undertaking and, or

association

of

undertakings

concerned; and

(iii) requesting the Court to

deliver a judgement to terminate

proceedings by means of settlement

based on the settlement submissions

of the undertaking and, or association

of undertakings concerned contained

in the joint application and to impose

the amount of the penalty as requested

by the Director General.

(8) Settlement discussions may also be

proposed jointly by the parties at a later stage,

when a sworn application would have already

been filed by the Director General before the

Court

Provided that the Court may adjourn two

sittings so that within such time the parties would

be able to attempt to settle the dispute by filing a

joint application as referred to in sub-article (3)

Provided further that if the Director

General and, or the undertaking and, or

association of undertakings concerned fail to file

a joint application within the adjourned two

sittings allocated by the Court, proceedings

against the undertaking, and, or association of

undertakings concerned shall continue according

to the stage where the proceedings before the

Court had arrived.

(9) If the undertaking, and, or association of

undertakings concerned agree to terminate the

investigation before the Office or the proceedings

before the Court by means of settlement, by filing

together with the Director General the joint

application, the Director General shall reward the

undertaking and, or association of undertakings

for the settlement, by reducing between ten to

thirty-five percent the amount of the penalty

requested to be imposed by the Court on the

undertaking, and, or association of undertakings

concerned.

(10) The Director General may decide at his

own discretion at any time during the settlement

discussions to discontinue settlement procedure

altogether in a specific case or with respect to one

or more of the parties involved, if, for instance

(a) procedural efficiencies are not

likely to be achieved; or

(b) the settlement submissions do

not contain all the requirements mentioned

in sub-article (7); or

(c) the

undertaking

and,

or

association of undertakings do not have a

sincere intention of settling the case or do

not cooperate or have breached the

confidentiality obligation by revealing to

any third party the content of the settlement

meetings held with the Director General or

the contents of the documents to which

access has been granted

Provided that in case where the

Director

General

discontinues

the

settlement discussions for any reason as

provided for in this sub-article, or in the

case where the undertaking and, or

association of undertakings concerned or

the Director General, as the case may be,

withdraw or discontinue the settlement

procedure as provided for in sub-articles in

(5) and (8), the case shall proceed

according to the stage where the

investigation or proceedings have arrived.

(11) If the settlement procedure is

discontinued either by the Director General or by

the undertaking and, or association of

undertakings concerned during the investigation

before the Office or during Court proceedings

while attempting to settle the dispute, any

information and document provided by the

undertaking, and, or association of undertakings

concerned during the settlement procedure cannot

be used as evidence to establish an infringement

of articles 5, and, or 9 of the Act, and, or an

infringement of Articles 101 and, or 102 of the

TFEU against the undertaking and, or association

of undertakings concerned or other parties to the

investigation before any court of law

Provided that the foregoing provision of this

sub-article is without prejudice to sub-regulation

(4)(c) of regulation 6 of the Competition Law

Infringements (Actions for Damages)

Regulations in the Schedule

Provided further that documents and, or

information which were already in the possession

of the Office prior to being presented by the

undertaking and, or association of undertakings

concerned and any information which can be

requested by the Office pursuant to article 12 of

the Act, can be used as evidence by the Office

and before any court of law to establish an

infringement of articles 5, and, or 9 of the Act,

and, or an infringement of Articles 101 and, or

102 of the TFEU against the undertaking, and, or

association of undertakings concerned or against

other parties to the investigation.".

37. Article 12C of the principal Act shall be substituted by the Substitution of

article 12C of

the principal

Act.

following

12C. (1) Instead of delivering a judgement

"Commitments.

finding an infringement pursuant to article

13(1), the Court may issue a judgement

declaring commitments offered by the

undertaking and, or the association of

undertakings concerned involved in a suspected

infringement to be binding on them, if the

commitments are such as to bring the suspected

infringement t o an end and where those

commitments meet the competition concerns

expressed in that case

Provided that when delivering such

judgement, the Court shall not impose any

penalty and shall not specify as to whether there

has been an infringement of articles 5, and, or 9

of the Act and, or Articles 101 and, or 102 of

the TFEU.

(2) Commitments shall not be applicable

where the suspected infringement concerns

secret cartels or any other agreements,

decisions or concerted practices which involve

limitation

Provided that in all other cases, the Court

shall make a case by case assessment, after

taking into consideration all the submissions of

the parties to the proceedings, and any third

party comments as provided in sub-article (5) as

to whether commitments are the most

appropriate measures to address the suspected

infringement in the case at issue.

(3) The judgement may specify that those

commitments may be adopted for a specific

period of time and shall conclude that there are

no longer grounds for action that can be taken

by the Director General against the undertaking,

and, or association of undertakings concerned.

(4) Where the Court intends to deliver a

judgement under sub-article (1) and accepts the

commitments proposed, it shall seek the views

of market participants by publishing a concise

summary of the case and the main contents of

the commitments or of the proposed course of

action on the Gazette, having regard to the

legitimate interests of the undertakings as well

as the protection of business secrets or other

confidential information.

(5) Any interested party may submit their

observations in the records of the case within

the time limit fixed by the Court in its

publication

Provided that the Director General and the

undertaking and, or association of undertakings

concerned shall be notified and given a copy of

the third party comments.

(6) The Court shall reopen the proceedings

upon a sworn application by the Director

General only where

(a) there has been a material

change in any of the facts on which the

judgment was based; or

(b) the undertaking and, or

association of undertakings concerned

acted contrary to its commitments; or

(c) the judgment was based on

incomplete, incorrect, or misleading

information provided by the undertaking,

and, or association of undertakings

concerned.".

38. Article 12D of the principal Act shall be deleted.

Deletion of

article 12D of

the principal

Act.

39. Article 13 of the principal Act shall be substituted by the Substitution of

article 13 of the

following

principal Act.

13. (1) The Court may decide that an

"Finding of an

infringement

infringement of articles 5 and, or 9 of the Act,

by the Court.

and, or an infringement of Articles 101 and, or

102 of the TFEU has occurred.

(2) Where upon hearing the case the Court

finds no infringement of articles 5 and, or 9 of the

Act, it shall deliver a judgement to that effect

Provided that if the Court concludes that

the suspected infringement does not constitute a

breach of articles 101 and, or 102 of the TFEU,

the Court shall state in its judgement that there

are no grounds for action in accordance with

Article 5 of Council Regulation (EC) 1/2003.".

40. Article 13A of the principal Act shall be substituted by the

following

" Cease and

13A. (1) The Court may in its judgement

Desist Order

issue a cease and desist order whereby it

and

orders the undertaking and, or association of

Compliance

Order.

undertakings concerned to cease and desist

from participating in such agreement,

decision, practice or conduct, and, or issue a

compliance order setting behavioural or

structural remedies addressed to the

undertaking and, or association of

undertakings concerned for the purpose of

bringing the infringement to an immediate and

effective end.

(2) Any behavioural or structural

remedies set out in a compliance order shall be

proportionate to the infringement committed

and necessary to bring the infringement

effectively to an end.

(3) Structural remedies set out in a

compliance order may be imposed only where

there is no equally effective behavioural

r e m e d y o r wh e r e a n y e q u a l l y e ff e c t i v e

behavioural remedy would be more

burdensome for the undertaking concerned

than the structural remedy.".

41. Immediately after article 13A of the principal Act there shall

be inserted the following new article

13B. (1) The Director General and any

"Procedure

before the

party to the proceedings before the Court, who

Court and

appeals from

feel aggrieved by a judgement of the Court

decisions

delivered under this Act may appeal on points of

thereof.

law and, or of fact before the Court of Appeal by

means of an application filed in the registry of

that court within twenty days from the date of

the judgement of that court

Provided that the Court of Appeal

shall appoint the case for hearing by not later

than six months from the date of service of the

appeal application on the parties.

(2) If during an investigation the Director

General institutes proceedings pursuant to article

12A(4) of the Act concerning requests for

information, production of documents or the

conduct of inspections, the Court shall

endeavour to deliver a judgement upon hearing

the parties in the shortest time possible

Provided that an appeal from such a

judgement as referred to in this sub-article, shall

only lie after the definitive judgment in terms of

articles12C or 13 of the Act is delivered and

together with an appeal from such definitive

judgement. The judgement mentioned in this

sub-article may not be challenged before the

definitive judgement is delivered

Provided further that, if following the

investigation, the Director General does not

proceed to institute proceedings in terms of

article 12A(1) of the Act, the Director General

shall inform the undertaking and, or association

of undertakings concerned which shall have

twenty days from the notification of the Director

General of this fact to appeal from the judgement

delivered by the Court pursuant to this sub-

article.

(3) The undertaking or association of

undertakings concerned, the Director General or

the complainant may request the Court to be

heard behind closed doors where the

submissions to be made or evidence to be

produced is of a confidential nature or contains

business secrets.

(4) In all cases involving the application of

Article 101 and, or 102 of the TFEU, the

European Commission shall have a right to make

submissions on any matter before the Court.

(5) (a) A confidential and a non-

confidential version shall be produced of any

written observations and documentary evidence

submitted before the Court; and

(b) The Court shall verify the

confidentiality or otherwise of the information

submitted.

(6) Subject to the provisions of this Act, the

provisions of the Code of Organization and Civil

Procedure shall, mutatis mutandis, apply to all

judicial proceedings instituted according to this

Act before the Court and the Court of Appeal

and to the enforcement of judgements.

(7) When delivering judgements and

decrees pursuant to the provisions of this Act,

the Court may have recourse to the judgments of

the Court of Justice of the European Union, and

to relevant decisions and statements of the

European Commission including interpretative

notices on the relevant provisions of the TFEU

and secondary legislation relative to competition

and may also refer to its decisions and those of

the Competition and Consumer Appeals

Tribunal and the Commission for Fair Trading.".

42. Article 14 of the principal Act shall be amended as follows

(a) the marginal note thereof shall be substituted by the

words "Handling of complaints";

(b) sub-article (2) thereof shall be substituted by the

following

"(2) Where the Director General considers that on

the basis of the information in his possession there are

insufficient grounds for acting on a complaint or fails for

some other reason to investigate a complaint against an

undertaking and, or association of undertakings concerned

in terms of this Act, he shall inform the complainant.";

(c) sub-article (3) thereof shall be substituted by the

following

"(3) If the Director General considers that there are

insufficient grounds to act on a complaint or fails to

investigate a complaint in terms of the Act as referred to in

the previous sub-article, it shall be lawful for the

complainant to file a sworn application in Court, within

twenty days from notification of the decision of the

Director General, to request the Court to order the Director

General to act on a complaint or investigate a complaint in

terms of the Act against the undertaking and, or association

of undertakings concerned

Provided that, if after hearing the evidence

tendered by the complainant and the Director General, the

Court is satisfied that the complaint is justified and, or that

the Director General has no lawful reasons for failing to act

on a complaint or to investigate a complaint, the Court

shall deliver a judgement ordering the Director General

who shall thereupon commence the investigation or issue

any other order which the Court considers appropriate in

that case.";

(d) sub-article (4) thereof shall be substituted by the

following

"(4) Any party to the proceedings before the Court

who feels aggrieved by the judgment of the Court delivered

in terms of sub-article (3), may appeal on points of law

and, or of fact before the Court of Appeal, by means of an

application filed in the registry of that court within twenty

days from the date of the judgment of the Court."; and

(e)

sub-articles (5) to (10) thereof shall be deleted.

43. Article 14C of the principal Act shall be deleted.

Deletion of

article 14C of

the principal

Act.

Article 15 of the principal Act shall be substituted by the Substitution of

article 15 of the

principal Act.

15. (1) The Court shall, upon an application

filed by the Director General, in cases of urgency

due to the risk of serious and irreparable harm to

competition on the basis of a prima facie finding of

an infringement of articles 5 and, or 9 of the Act and,

or Articles 101 and, or 102 of the TFEU, issue

interim measures on any undertaking and, or

association of undertakings concerned as it may

deem appropriate in the circumstances

Provided that any interim measures issued

according to this provision shall be proportionate

and shall apply either for a specified period of time

to be determined by the Court or until the final

judgement on the merits of the case is delivered by

this Court

Provided further that the interim measures

may be renewed by the Court in so far as it is

necessary and appropriate upon an application filed

by the Director General before the Court.

(2) The application filed by the Director

General pursuant to sub-article (1) shall state all the

facts known by him and the reasons why he deems

that the imposition of interim measures is in this

case required. Such application shall also contain all

submissions to be made together with all documents

in support of the demand that is being filed.

(3) The defendant shall file a note within eight

days from the date of notification of the application,

containing all submissions to be made together with

all documents in support of the reply that is being

filed.

(4) The court shall decide the application with

urgency either in camera or after hearing the parties,

if it deems fit, provided that not more than one

sitting may be fixed for such purpose.

(5) An appeal from the interim measures

imposed by the Court pursuant to sub-article (1) may

be lodged by the aggrieved party by means of an

application filed before the Court of Appeal, within

six days from the date of such decree on the legality,

including the proportionality of the interim measures

and the party against whom such an application is

filed shall reply thereto within six days from the date

of service of such an application.

(6) The Court of Appeal shall decide on the

application pursuant to sub-article (5) in an

expedited manner.".

Articles 17 and 18 of the principal Act shall be deleted.

Article 19 of the principal Act shall be substituted by the Substitution of

19. (1) When publishing judgements

"Publication of

judgements and

and decrees, the Court shall have regard to the

legitimate interest of the undertakings

concerned in the protection of their business

secrets or other confidential information. The

Court may give the parties concerned the

opportunity to specify the confidential parts of

the judgement or decree which they want to be

excluded from publication

Provided that the Court shall ultimately

decide about which version shall be published.

(2) The Director General shall also

publish on the website of the Authority a notice

whereby it is stated that a sworn application has

been filed pursuant to article 12A having

regard to the legitimate interest of undertakings

in the protection of their business secrets and

other confidential information. The publication

may contain the names of the undertaking and,

or association of undertakings against whom

the Director General has filed a sworn

application and a brief description of the type

of the alleged infringement as well as the

affected business sector.".

Article 21 of the principal Act shall be substituted by the Substitution of

21. (1) The Court shall impose a penalty of up

to ten percent of the total turnover of an undertaking

and, or association of undertakings concerned in the

preceding business year for each infringement where

the undertaking and, or association of undertakings

intentionally or negligently

(a) infringes the provisions of articles

5 and, or 9 of the Act; and, or

(b) infringes Article 101 and, or 102 of

the TFEU

Provided

that

where

the

infringement of an association of undertakings

relates to the activities of its members, the

penalty shall not exceed ten per centum of the

sum of the total turnover of each member

active on the market affected by the

infringement

of

the

association

of

undertakings.

(2) (a) Where, upon delivering a judgement

finding an infringement of articles 5 and, or 9 of the

Act and, or Articles 101 and, or 102 of the TFEU, a

penalty is imposed by the Court upon an association

of undertakings, taking account of the annual

turnover of its members, and the association of

undertakings is not solvent, the Court shall order the

association of undertakings to call for contributions

from its members to cover the amount of the penalty

due within a time limit fixed by the Court

Provided that the Court may also specify in

its judgement that where the contributions referred to

in paragraph (a) are not made to the association of

undertakings within the time limit fixed by the Court,

payment of the penalty shall be made directly by any

of the undertakings whose representatives were

members of the decision-making bodies of the

association of undertakings

Provided further that the Court may also

specify in its judgement that where the application of

the foregoing proviso is not sufficient to ensure the

full payment of the penalty, payment of the balance

shall be made by a ny of the members of t he

association of undertakings which were active on the

market on which the infringement occurred.

(b) The foregoing provisos of this sub-

article shall not apply to those undertakings which

show that they have not implemented the unlawful

decision of the association of undertakings and they

were not aware of its existence or had actively

distanced themselves from it, before the Director

General started investigating the case.

(c) The financial liability of each

undertaking in respect to the payment of the penalty

shall not exceed ten per centum of its total turnover

in the preceding business year.

(3) (a) Sub-article

(1)

shall,

mutatis

mutandis, apply when an undertaking and, or an

association of undertakings intentionally or

negligently

(i) fails to comply with a cease and

desist order and, or a compliance order

pursuant to article 13A;

(ii) fails to comply with an interim

measure pursuant to article 15;

(iii) fails to comply with a commitment

made binding pursuant to article 12C;

(b) In the application of this sub-article to

an association of undertakings, sub-article (2) shall,

mutatis mutandis, apply.

(4) (a) In determining the amount of the

penalty, the Court shall give due regard to the gravity

and the duration of the infringement and to any

aggravating or attenuating circumstances.

(b) Aggravating circumstances include

(i) the Court having already imposed a

penalty on the same undertaking or association

of undertakings for the same or a similar

infringement;

(ii) the undertaking or association of

undertakings concerned having already

committed an infringement under articles 5

and, or 9 of this Act and, or under Articles 101

and, or 102 of the TFEU according to a

decision or judgement which has become res

judicata;

(iii) the undertaking or association of

undertakings having a leading role, as

perpetrator or instigator;

(iv) retaliatory or other coercive

measures taken against other undertakings

aimed at ensuring the continuation of the

infringement.

(c) Attenuating circumstances include

(i)

the involvement of the undertaking

or association of undertakings in the

infringement being substantially limited;

(ii) the undertaking or association of

undertakings ending the infringement on its

own accord;

(iii) the undertaking or association of

undertakings significantly contributing to

uncover the infringement;

(iv)

the undertaking acting under

severe duress or pressure.

(5) The Court may impose a penalty of not less

than one thousand five hundred euro (€1,500) and

not exceeding thirty thousand euro (€30,000) where

any person, undertaking and, or association of

undertakings in the course of any investigation

pursuant to article 12 of the Act or in the course of a

sector inquiry pursuant to article 11A of the Act

intentionally or negligently

(a) gives any false, inaccurate or

misleading information; or

(b) produces or furnishes, or causes or

knowingly allows to be produced or furnished,

any document or information which he knows

to be false in any particular material; or

(c) prevents

or

hinders

any

investigation or sector inquiry.

(6) The Court may impose a penalty of not less

than ten thousand euro (€10,000) and not exceeding

fifty thousand euro (€50,000) where any person,

undertaking and, or association of undertakings who

in the course of any investigation pursuant to article

12

(a) fails to submit to an inspection and,

or obstructs the Director General and, or his

officers and, or any other person authorised or

appointed by the Director General in the

exercise of their powers under a warrant issued

under article 12(7)(a) of the Act; or

(b) breaks the seals affixed by officers

or other accompanying persons authorised by

the Director General during an inspection.

(7) (a) The Court may, in addition to the

penalty referred to in sub-articles (1), (3), (5) or (6),

also order the undertaking and, or association of

undertakings, to comply with any orders issued by

the Court within the shortest time possible but in any

case by not later than seven (7) days from the date of

the said judgement. If the undertaking and, or

association of undertakings fails to comply with any

such order within such time as fixed by the Court, the

Court may impose on the undertaking and, or

association of undertakings concerned periodic

penalty payments not exceeding five per centum of

the average daily turnover of the undertaking and, or

association of undertakings concerned achieved in

the preceding business year, for each day of delay

during which the undertaking and, or association of

undertakings fails to comply with its obligation,

which daily penalty payment shall start to run upon

termination of the time-limit as set out by the Court

in its judgement in order to compel it or them

(i) to comply with a cease and desist

order and, or a compliance order pursuant to

article 13A;

(ii) to comply with interim measures

pursuant to article 15;

(iii) to comply with a commitment made

binding pursuant to article 12C;

(iv) to submit to an inspection and to

produce the required objects, documents or

other records as referred to in article 12;

(v) without prejudice to the second

proviso to article 12(2)(a) to supply complete

information in response to a request for

information referred to in articles 12 and 11A;

(vi) to supply correct information and,

or to produce the requested documents in

response to a request for information referred

to in articles 12 and 11A;

(vii) to stop from pursuing any other

conduct which is hindering the investigation or

sector inquiry and, or to rectify any acts or

omissions.

(b) Where the undertaking or association

of undertakings concerned complies with the

obligations pursuant to sub-article (7)(a), the Court

may then set the definitive amount of the periodic

penalty payment at a figure lower than that which

was set out in the original decision of the Court.

(c) In the application of this sub-article to

an association of undertakings, sub-article (2) shall,

mutatis mutandis, apply.

(8) When determining the penalties pursuant to

this article, the Court shall in exercising its discretion

ensure that the penalties imposed are effective,

proportionate and dissuasive.

(9) The liability for the payment of a penalty

arising under this article shall be without prejudice to

any other liability that a person, undertaking and, or

association of undertakings may be subject to under

any other law.".

Article 21A to article 26 of the principal Act shall be deleted.

Article 26A of the principal Act shall be amended as follows

(a) the marginal note thereof shall be substituted by the

words "Prescription for the imposition of penalties.";

(b) sub-article (1) thereof shall be substituted by the

following

"(1) A penalty shall only be imposed under article

21 of the Act when judicial proceedings concerning

infringements contemplated in the Act are instituted within

five years after the termination of the infringement

Provided that in the case of infringements of

the Act concerning requests for information, production of

documents and the conduct of inspections a penalty shall

only be imposed under article 21 of the Act when judicial

proceedings are instituted within three years after the

termination of the infringement.";

(c)

sub-article (2) thereof shall be deleted;

(d) sub-article (3) thereof shall be substituted by the

following

"(3) The prescription period for the imposition of

penalties shall be interrupted by any action of the Director

General or, in the case of the application of Articles 101

and 102 of the TFEU also, by any action of the European

Commission or of a competition authority of a Member

State with a view to investigating or instituting proceedings

for the infringement. The prescription period shall be

interrupted with effect from the date on which the action is

notified to at least one undertaking or association of

undertakings which has participated in the infringement.";

(e)

sub-article (4) thereof shall be amended as follows

(i) in paragraph (ii) the words "the issue of a

written authorisation signed by the Director General or"

shall be deleted;

(ii) in paragraph (iv) the words "the notification of

a statement of objections in accordance with article 12A

or" shall be deleted; and

(f) sub-article (7) thereof shall be substituted by the

following

"(7) The prescription period for the imposition of

penalties shall be suspended for as long as proceedings

instituted pursuant to the provisions under this Act are

pending before the Court or the Court of Appeal.".

Sub-article (1) of article 27 of the principal Act shall be Amendment of

article 27 of the

amended as follows

principal Act.

(a) the words "Where before any court of civil

jurisdiction" shall be substituted by the words "Without prejudice

to the provisions of articles 3 and 12A(1), where before any other

court of civil jurisdiction which is not the Civil Court

(Commercial Section)"; and

(b) in the proviso thereto the words "shall abide by such

decision." shall be substituted by the words "shall abide by such

decision:" and immediately thereafter there shall be added the

following new proviso

"Provided further that where the competition

question raised before any court of civil jurisdiction is

subject already to proceedings instituted by the Director

General before the Court or will be subject to proceedings

before the Court at any point in time as contemplated in

this Act any other court of civil jurisdiction where the

competition question mentioned in sub-article (1) has been

raised shall stay the proceedings.".

The marginal note of article 28 of the principal Act shall be

substituted by the words "It shall not be lawful to issue any

precautionary warrant.".

In article 31 of the principal Act the words "any member of

the Appeals Tribunal," shall be deleted.

Immediately after article 31 of the principal Act there shall be

added the following new article

31A. The tariffs referred to in the Code of

"Causes.

Organization and Civil Procedure in Schedule A

shall apply to the causes instituted pursuant to the

provisions of this Act.".

Article 33 of the principal Act shall be amended as follows

(a) in sub-article (1)(a) thereof, the words "and in

connection with procedures before the Commission" shall be

deleted; and

(b) in sub-article (2)(b) thereof, the words "Appeals

Tribunal" shall be substituted by the word "Court".

Part IV

Amendments to the Voluntary Organisations Act

This Part amends the Voluntary Organisations Act and it shall

be read and construed as one with the Voluntary Organisations Act,

hereinafter in this Part referred to as "the principal Act".

In article 35(4)(a)(ii) of the principal Act, the words "and

Special Needs" shall be substituted by the words "and Disability".

Immediately after article 41 of the principal Act there shall be

added the following new article

" Transitory

42. Article 35, establishing the Malta

provision.

Council for the Voluntary Sector as in force

Act XXXVI of prior to the coming into force of the Voluntary

2018. Organisations (Amendment) Act, 2018 shall

continue to apply until the 6th of November of

2019.".

Part V

Amendments to the Malta Competition and

Consumer Affairs Authority Act

This Part amends the Malta Competition and Consumer Amendments to

Affairs Authority Act, and it shall be read and construed as one with the

Competition and

the Malta Competition and Consumer Affairs Authority Act, Consumer

Affairs

hereinafter in this Part referred to as "the principal Act".

Authority Act.

Article 2 of the principal Act shall be amended as follows

Amendment of

article 2 of the

principal Act.

(a)

the definition "Appeals Tribunal" shall be deleted;

(b) immediately after the definition "Chairman" there

shall be added the following new definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3 of

the Civil Court (Establishment of Sections)

Order."; and

(c)

the definition "President" shall be deleted.

Article 14 of the principal Act shall be amended as follows

Amendment of

article 14 of the

principal Act.

(a) in sub-article (1)(a) thereof, the words "to

investigate, determine and suppress restrictive practices;" shall

be substituted by the words "to investigate practices which

allegedly distort or restrict competition and to act as an official

party in proceedings instituted by the Director General before the

Civil Court under the Competition Act and in case when there is Cap. 379.

an appeal from judgements of the Civil Court delivered under the

Competition Act before the Court of Appeal"; and

(b) in sub-article (1)(c) thereof, the words "to act as the

national competition authority in Malta as designated by virtue

of article 35(1) of Council Regulation (EC) No. 1/2003" shall be

substituted by the words "to act together with the Civil Court, as

the national competition authority in Malta as designated by

virtue of article 35(1) of Council Regulation (EC) No. 1/2003

Provided that for the purposes of this sub-article, the

competent competition authority with regard to the

application of Articles 101 and 102 of the TFEU, pursuant

to Council Regulation (EC) No. 1/2003 on the

implementation of the rules on competition laid down in

Articles 81 and 82 of the Treaty, OJ L1 of 04/01/2003, p.1

(Regulation 1/2003) shall be

(a) the Civil Court for the adoption of decisions

and imposition of penalties and other remedies; and

(b) the Office for Competition for investigating

and instituting proceedings before the Civil Court;".

Article 29 of the principal Act shall be amended as follows

(a) sub-article (1) thereof shall be substituted by the

following

"(1) Any person, undertaking or association of

undertakings or any other body which submits information

or comments in one of the situations listed hereunder or

subsequently submits further information to the Director

General in the course of an investigation, shall clearly

identify any material which it considers to be confidential,

giving reasons therefor, and provide a separate non-

confidential version, where applicable by the date set by

the Director General for making its submissions known

(a) a complainant lodging a complaint under the

Competition Act or under the Consumer Affairs Act;

(b) a person, undertaking or association of

undertakings or any other body complying with a request

for the provision of information under the provisions of

this Act, the Competition Act, the Consumer Affairs Act

and any other Act, or regulations made thereunder;

(c) an addressee of objections made under the

Control of Concentrations Regulations making known his

views on the objection;

(d) the addressee of an invitation by the Director

General to engage in settlement discussions under article

12B of the Competition Act.";

(b) sub-article (3) thereof shall be substituted by the

following

"(3) In the case of objections sent by the Director

General (Competition) under the Control of Concentrations

Regulations, the persons, undertakings and associations of

undertakings concerned may be required to identify any

part of the objections, in which in their view contains

business secrets or other confidential information."; and

(c) sub-article (9) thereof shall be substituted by the

following

"(9) In those cases where the person or undertaking

or association of undertakings or any other body does not

agree with the decision of the Director General issued

under sub-article (8) the person or undertaking or

association of undertakings or any other body may request

a review thereof by sworn application to the Civil Court

within ten days from when the decision of the Director

General is notified

Provided that the Civil Court shall appoint and

decide any matter under this sub-article within the shortest

time possible

Provided further that the decision of the Civil Court

shall be final and no appeal or challenge shall lie from such

decision.".

Part IX of the principal Act entitled "Establishment of the Deletion of Part

IX of the

Competition and Consumer Appeals Tribunal" shall be deleted.

principal Act.

In article 44 of the principal Act, the words "administered by Amendment of

the President of the Appeals Tribunal." shall be substituted by the article

principal Act.

words "taken before the Court of Appeal, in a public hearing of the

same court.".

The proviso to article 48(2) of the principal Act shall be Amendment of

article 48 of the

substituted by the following

principal Act.

"Provided that where the entities are specifically entrusted

by law to charge fees, those fees shall be levied by the entities

concerned.".

Article 64 of the principal Act shall be amended as follows

Amendment of

article 64 of the

principal Act.

(a) in the second proviso to paragraph (a) of sub-article

(2) thereof, the words "the Appeals Tribunal may upon an

application by the Authority" shall be substituted by the words

"the Civil Court may upon an application by the Authority";

(b) in the proviso to paragraph (d) of sub-article (2)

thereof, the words "Appeals Tribunal" shall be substituted by the

words "Civil Court"; and

(c) in sub-article (3) thereof, the words "Appeals

Tribunal", wherever they so appear, shall be substituted by the

words "Civil Court".

Article 69 of the principal Act shall be deleted.

Article 70 of the principal Act shall be substituted by the

following

(1) The provisions of the

"Transitory

provisions in

Competition Act and of the Consumer

relation to the

Competition Act

Affairs Act, existing prior to the 23rd May

and the Consumer

2011, shall continue to apply, as the case

Affairs Act.

may be, to all

(a) investigations

pending

before the Director of the Office for

Fair Competition and the Director of

Consumer Affairs, as substituted by

the Director General (Competition)

and the Director General (Consumer

Affairs);

(b) proceedings

pending

before the Commission for Fair

Trading and the Consumer Affairs

Appeals Board, as substituted by the

Competition and Consumer Appeals

Tribunal and further substituted by the

Civil Court; the Consumer Claims

Tribunal and the courts; and

(c) decisions and judgments

which are not yet res judicata.

(2) The

provisions

of

the

Competition Act and of the Consumer

Affairs Act, existing after the 23rd May

2011, but prior to the coming into force of

the Competition Act and Consumer Affairs

Act and other Laws (Amendment) Act,

2019 shall also continue to apply, as the

case may be, to all

(a) proceedings which started

after the date mentioned in sub-article

(2), and which are still pending at the

time of the coming into force of the

Competition Act and Consumer

Affairs Act and other Laws

(Amendment) Act, 2019, before the

Competition and Consumer Appeals

Tribunal substituted by the Civil

Court; the Consumer Claims Tribunal

and the courts; and

(b) decisions and judgments

which have been delivered after the

23rd May 2011 and which were not

yet res judicata at the time of the

coming into force of the Competition

Act and Consumer Affairs Act and

other Laws (Amendment) Act, 2019

Provided that the provisions of

the Competition Act and of the

Consumer Affairs Act existing after

the coming into force of the

Competition Act and Consumer

Affairs Act and other Laws

(Amendment) Act, 2019, shall apply

to investigations which commenced

after the 23rd May 2011 and which

are still pending before the Director

General (Competition) and before the

Director General (Consumer Affairs)

Provided further that with

regard to appeals from any decision of

the Competition and Consumer

Appeals Tribunal, the Commission for

Fair Trading or the Consumer Affairs

Appeals Board which are still pending

before the Court of Appeal after the

coming into force of the Competition

Act and Consumer Affairs Act and

other Laws (Amendment) Act, 2019,

the appellant shall have twenty days

from the above-mentioned date, or

twenty days from the first hearing of

such appeals, whichever is later, to file

any further grounds of appeal on

points of fact.

(3)

For the purposes of sub-article (1)

(a)

the Director General

(Competition) shall be vested with the

powers of the Director of the Office

for Fair Competition as provided for

in the Competition Act; and

(b) the

Director

General

(Consumer Affairs) shall be vested

with the powers of the Director of

Consumer Affairs as provided for in

the Consumer Affairs Act,

prior to the 23rd May 2011.

(4) For the purposes of sub-article

(1)(b), the Civil Court shall be vested with

the powers of

(a) the Commission for Fair

Trading as provided for in the

Competition Act; and

(b) the Consumer Affairs

Appeals Board as provided for in the

Consumer Affairs Act,

prior to the 23rd May 2011.

(5)

For the purposes of sub-article (2)

(a)

the Director General

(Consumer Affairs) shall be vested

with the powers of the Director

General (Consumer Affairs) as

provided for in the provisions of the

Consumer Affairs Act; and

(b) the

Director

General

(Competition) shall be vested with the

powers of the Director General

(Competition) as provided for in the

provisions of the Competition Act,

existing after the coming into force of the

Competition Act and Consumer Affairs

Act and other Laws (Amendment) Act,

2019. (6) For the purposes of sub-article

(2)(a) the Civil Court shall be vested with

the powers of the Competition and

Consumer Appeals Tribunal as provided for

in the provisions of the Competition Act, in

the Consumer Affairs Act, and in the Malta

Competition and Consumer Affairs

Authority Act, existing prior to the coming

into force of the Competition Act and

Consumer Affairs Act and other Laws

(Amendment) Act, 2019.".

68. The Second Schedule to the principal Act shall be deleted.

Deletion of the

Second

Schedule to the

principal Act.

69. The Third Schedule to the principal Act shall be substituted Substitution of

the Third

by the following

Schedule to the

principal Act.

"THIRD SCHEDULE

(ARTICLE 18)

LIST OF EU LEGISLATIVE ACTS FOR THE PURPOSES OF

WHICH THE OFFICE FOR CONSUMER AFFAIRS IS THE

NATIONAL COMPETENT AUTHORITY

1. Council Directive 93/13/EEC of 5 April 1993 on unfair terms

in consumer contracts.

2. Directive 98/6/EC of the European Parliament and of the

Council of 16 February 1998 on consumer protection in the

indication of the prices of products offered to consumers.

3. Council Directive 1999/44/EC of the European Parliament

and of the Council of 25 May 1999 on certain aspects of the

sale of consumer goods and associated guarantees.

4. Regulation (EC) No. 261/2004 of the European Parliament

and of the Council of 11 February 2004 establishing common

rules on compensation and assistance to passengers in the

event of denied boarding and of cancellation or long delay of

flights, and repealing Regulation (EEC) No 295/91.

5. 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

amending Council Directive 84/450/EEC, Directives 97/7/EC,

98/27/EC and 2002/65/EC of the European Parliament and of

the Council and Regulation (EC) No. 2006/2004 of the

European Parliament and of the Council (Unfair Commercial

Practices Directive).

6. Directive 2008/48/EC of the European Parliament and of the

Council of 23 April 2008 on credit agreements for consumers

and repealing Council Directive 87/102/EEC.

7. Directive 2011/83/EU of the European Parliament and of the

Council of 25 October 2011 on consumer rights, amending

Council Directive 93/13/EEC and Directive 1999/44/EC of

the European Parliament and of the Council and repealing

Council Directive 85/577/EEC and Directive 97/7/EC of the

European Parliament and of the Council.

8. Directive 2006/114/EC of the European Parliament and of the

Council of 12 December 2006 concerning misleading and

comparative advertising (only with regard to Articles 1, 2c, 4

to 8 thereof).

9. Regulation (EU) No. 181/2011 of the European Parliament

and of the Council of 16 February 2011 concerning the rights

of passengers in bus and coach transport and amending

Regulation (EC) No. 2006/2004.

10. Regulation (EU) No. 1177/2010 of the European Parliament

and of the Council of 24 November 2010 concerning the

rights of passengers when travelling by sea and inland

waterway and amending Regulation (EC) 2006/2004.".

Part VI

Amendments to the Collective Proceedings Act

70. This Part amends the Collective Proceedings Act and it shall

be read and construed as one with the Collective Proceedings Act,

hereinafter in this Part referred to as "the principal Act".

In paragraph II of Schedule A of the principal Act the words

"and those Acts mentioned in article 111 of the Consumer Affairs Act"

shall be deleted.

Part VII

Consequential Amendments

(1) Article 5A of the Civil Court (Establishment of Consequential

amendments to

Sections) Order shall be substituted by the following

" Assignment of

5A. To the Civil Court (Commercial

cases to the

Section)

shall be assigned applications falling

Civil Court

within the competence of the Civil Court and

(Commercial

Section).

which relate to matters re gulated by the

Companies Act, the Competition Act and any

regulations made thereunder, by the Consumer

Affairs Act and any regulations made

thereunder, and by the Malta Competition and

Consumer Affairs Authority Act.".

(2) Regulation 5A of the Civil Court (Family Section), the First Consequential

Hall of the Civil Court, the First Hall of the Civil Court (Gozo) and the amendments

Civil Court (Family Section) (Gozo) Regulations shall be substituted

by the following

" Assignment of

5A. To the Civil Court (Commercial

cases to the

Section) shall be assigned applications falling

Civil Court

within the competence of the Civil Court and

(Commercial

Section).

which relate to matters regulated by the

Companies Act, the Competition Act and any

regulations made thereunder, by the Consumer

Affairs Act and any regulations made

thereunder, and by the Malta Competition and

Consumer Affairs Authority Act.".

(3) The Consumer Claims Tribunal Rules shall be amended as Consequential

amendments to

follows

(a) in rule 2 thereof, the definition "Director" shall be

substituted by the following

" "the Director General" means the Director General

(Consumer Affairs) as defined in the Act;"; and

(b) the words "Director" and "Director of Consumer

Affairs" shall be substituted by the words "Director General"

wherever they occur in all the rules.

(4) In the Consumer Affairs Act (Price Indications) Regulations, Consequential

the word "Director" shall be substituted by the words "Director amendments

General" wherever it occurs.

(5) The Credit Agreements for Consumers relating to Residential

Immovable Property Regulations shall be amended as follows

(a)

in regulation 2 thereof

(i) immediately after the definition "bundling

practice" there shall be added the following new definition

""Civil Court" means the Civil Court

(Commercial Section) established by article 3 of the

Civil Court (Establishment of Sections) Order;";

(ii) the definition "the Director General" shall be

substituted by the following

" "the Director General" means the Director

General (Consumer Affairs) as defined in the Act;";

(b) in regulation 3A thereof, in sub-regulation (2)(b) the

words "respective duties effectively." shall be substituted by the

words "respective duties effectively:" and immediately thereafter

there shall be added the following proviso

"Provided that with regard to this sub-regulation and

to any other reference in these regulations to the

application and enforcement of these regulations by the

Director General, this shall be without prejudice to the

competences assigned to the Civil Court by the Act and by

the Malta Competition and Consumer Affairs Authority

Act, and to the judicial proceedings established in the

Act.";

(c) regulation 23 thereof shall be substituted by the

following

" Investigations,

23. (1) Without prejudice to the

judicial

provisions of regulation 23A, the Director

proceedings,

General shall proceed according to article 12

penalties and

the right of

of the Act and where, upon the conclusion of

appeal.

an investigation, it appears prima facie to the

Director General, that an infringement of

these regulations has occurred, the Director

General shall institute judicial proceedings

against the person concerned before the Civil

Court by means of a sworn application and

the provisions of Part IIA of the Act shall

apply to these judicial proceedings.

(2) Subject to the provisions of Part IIA

of the Act, the Civil Court, in its judgement,

shall impose a penalty and issue such order,

or take such measure as it may deem

appropriate in terms of the Act, upon any

person who contravenes or fails to comply

with any of the provisions of these

regulations

Provided that the MFSA shall not,

through these judicial proceedings or through

any other procedures, request the imposition

of a penalty in respect of the same

infringement.

(3) Any person who contravenes any

provision of these regulations shall be guilty

of an infringement punishable by a penalty of

not less than one thousand euro (€1,000) and

not exceeding forty-five thousand euro

(€45,000).

(4) In the case of non-compliance with a

compliance order, the Civil Court shall also

impose a daily penalty of not less than one

hundred and thirty euro (€130) and not more

than two hundred and thirty euro (€230) for

each day of non-compliance.

(5) In determining the amount of the

penalty specified in this regulation, the Civil

Court shall be guided by the following

considerations

(a) for infringements under

these regulations, the basic amount of

the penalty shall be twenty thousand

euro (€20,000)

Provided that the Civil

Court may, in setting the penalty, take

into account circumstances that may

lead to an increase or decrease in the

basic amount

Provided further that the

Civil Court shall do so on the basis of

an overall assessment which takes into

account all the relevant circumstances,

including the value of the credit under

the credit agreement and the turnover of

the creditor;

(b) the Civil Court may impose

a higher penalty than the basic amount

where

there

are

aggravating

circumstances, having regard, in

particular, to the gravity and duration of

the infringement and, or to the amount

of gains improperly made as a result of

the infringement;

(c) without prejudice to the

generality of paragraph (b), the

following shall in all cases be deemed

as aggravating circumstances

(i) a

second

or

subsequent infringement;

(ii) where

the

infringement constitutes an unfair

commercial practice in terms of

the Act; and

(d) the basic amount may be

decreased where the Civil Court finds

that there are mitigating circumstances

in particular

(i)

where the creditor or

the credit intermediary, as the

case may be, provides evidence

that

he

terminated

the

infringement concerned prior to

or as soon as the Director General

commenced an investigation;

(ii) where the creditor or

the credit intermediary, as the

case may be, provides evidence

that he has taken adequate steps to

reduce the negative effects of the

infringement.

(6) In discharging his functions under

these regulations, the Director General shall

have the same powers as prescribed under the

Act except where competences are assigned

to the Civil Court by the Act and by the Malta

Competition and Consumer Affairs Authority

Act.

(7) Any person who feels aggrieved by a

judgement, order, penalty or measure issued

by the Civil Court, may appeal before the

Court of Appeal, on any point of law and, or

of fact, by means of an application filed in the

registry of the Court of Appeal within twenty

days from the date of the judgment of the

Civil Court

Provided that the Court of Appeal

shall appoint the case for hearing by not later

than six months from the judgement of the

Civil Court."; and

(d) the second proviso to regulation 23A(1) thereof shall

be substituted by the following

"Provided that the Director General shall not in any

manner request the imposition of a penalty in respect of the

same act or omission.".

(6) The Order for the purposes of articles 94, 100 and 101 of the Consequential

amendments to

Consumer Affairs Act shall be repealed.

(7) The Consumer Credit Regulations shall be amended as Consequential

amendments to

(a)

in regulation 3 thereof

(i) immediately after the definition "borrowing

rate" there shall be added the following new definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3

of the Civil Court (Establishment of Sections)

Order;"; and

(ii) the definition "the Director" shall be substituted

by the following new definition

" "the Director General" means the Director

General (Consumer Affairs) as defined in the Act;";

(b)

regulation 22 thereof shall be amended as follows

(i) the marginal note thereof shall be substituted

by "Monitoring and investigations."; and

(ii)

immediately after paragraph (c) thereof there

shall be added the following new paragraph

"(d) investigate any alleged infringements

and, as may be necessary, institute judicial

proceedings before the Civil Court according to the

Act.";

(c) regulation 23 thereof shall be substituted by the

following

" Investigations,

23. (1) The Director General shall

judicial

proceed according to article 12, and where,

proceedings,

upon the conclusion of an investigation, it

penalties and the

right of appeal.

appears prima facie to the Director

General, that an infringement of these

regulations has occurred, the Director

General shall institute judicial proceedings

against the person concerned before the

Civil Court by means of a sworn

application and the provisions of Part IIA

shall apply to these judicial proceedings.

(2) Subject to the provisions of Part

IIA, the Civil Court, in its judgement, shall

impose a penalty and issue such order, or

take such measure as it may deem

appropriate in terms of the Act, upon any

person who contravenes or fails to comply

with any of the provisions of these

regulations.

(3) Any person who contravenes any

provision of these regulations shall be

guilty of an infringement punishable by a

penalty of not less than one thousand euro

(€1,000) and not exceeding forty-five

thousand euro (€45,000).

(4) In the case of non-compliance with

a compliance order, the Civil Court shall

also impose a daily penalty of not less than

one hundred and thirty euro (€130) and not

more than two hundred and thirty euro

(€230) for each day of non-compliance.

(5) In determining the amount of the

penalty specified in this regulation, the

Civil Court shall be guided by the

following considerations

(a) for infringements under

these regulations, the basic amount of

the penalty shall be twenty thousand

euro (€20,000)

Provided that the Civil Court

may, in setting the penalty, take into

account circumstances that may lead

to an increase or decrease in the basic

amount

Provided further that the Civil

Court shall do so on the basis of an

overall assessment which takes into

account

all

the

relevant

circumstances, including the value of

the credit under the credit agreement

and the turnover of the creditor;

(b) the Civil Court may

impose a higher penalty than the

basic amount where there are

aggravating circumstances, having

regard, in particular, to the gravity

and duration of the infringement and,

or to the amount of gains improperly

made as a result of the infringement;

(c) without prejudice to the

generality of paragraph (b), the

following shall in all cases be deemed

as aggravating circumstances

(i) a

second

or

subsequent infringement;

(ii) where

the

infringement constitutes an

unfair commercial practice in

terms of the Act; and

(d) the basic amount may be

decreased where the Civil Court finds

that

there

are

mitigating

circumstances in particular

(i) where the creditor

or the credit intermediary, as the

case may be, provides evidence

that

he

terminated

the

infringement concerned prior to

or as soon as the Director

General

commenced

an

investigation;

(ii) where the creditor

or the credit intermediary, as the

case may be, provides evidence

that he has taken adequate steps

to reduce the negative effects of

the infringement.

(6) In discharging his functions under

these regulations, the Director General

shall have the same powers as prescribed

under the Act except where competences

are assigned to the Civil Court by the Act

and by the Malta Competition and

Consumer Affairs Authority Act.

(7) Any person who feels aggrieved

by a judgement, order, penalty or measure

issued by the Civil Court, may appeal

before the Court of Appeal, on any point of

law and, or of fact, by means of an

application filed in the registry of the Court

of Appeal within twenty days from the date

of the judgment of the Civil Court

Provided that the Court of Appeal

shall appoint the case for hearing by not

later than six months from the judgement of

the Civil Court."; and

(d) the word "Director" shall be substituted by the words

"Director General" wherever it occurs in all the regulations.

(8) The Pricing of Air Services Regulations shall be amended as

follows

(a)

in regulation 2 thereof

(i)

immediately after the definition "the Act" there

shall be added the following new definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3 of

the Civil Court (Establishment of Sections)

Order;"; and

(ii) the definition "the Director" shall be substituted

by the following

" "the Director General" means the Director

General (Consumer Affairs) as defined in the Act;";

(b) regulation 3 thereof shall be substituted by the

following

3. (1) The Director General shall be

"Designated

person.

responsible for the monitoring and the

investigations with regard to the compliance

with the provisions of Article 23 of the

Regulation, according to the Act.";

(c) regulation 4 thereof shall be substituted by the

following

4. Except where competences are

"Investigations

and judicial

assigned to the Civil Court by the Act or by

proceedings.

the Malta Competition and Consumer Affairs

Authority Act, in discharging his functions

under these regulations, the Director General

shall have the same powers as prescribed

under the Act, including the power to

investigate and to institute judicial

proceedings, as established by the Act, before

the Civil Court.";

(d) regulation 5 thereof shall be substituted by the

following

5. Any person who feels aggrieved by a

"Right of

Appeal.

judgement, order, penalty or measure issued by

the Civil Court, may appeal before the Court

of Appeal, on any point of law and, or of fact,

by means of an application filed in the registry

of the Court of Appeal within twenty days

from the date of the judgment of the Civil

Court

Provided that the Court of Appeal

shall appoint the case for hearing by not later

than six months from the judgement of the

Civil Court."; and

(e) the word "Director" shall be substituted by the words

"Director General" wherever it occurs in all the regulations.

(9) The Denied Boarding (Compensation and Assistance to Air

Passengers) Regulations shall be amended as follows

(a) in regulation 2 thereof immediately after the

definition "the Act" there shall be added the following new

definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3 of

the Civil Court (Establishment of Sections)

Order;";

(b) regulation 4 thereof shall be substituted by the

following

4. (1) For the purpose of Article 16

"Designated

person,

of Regulation 261/ 2004, the Director

investigations and

judicial

General is the designated person

proceedings.

responsible for the monitoring and the

investigations concerning the compliance

with the provisions of Regulation 261/2004

with regard to flights from airports situated

in Malta and flights from a third country to

airports situated in Malta.

(2) Except where competences are

assigned to the Civil Court by the Act or by

the Malta Competition and Consumer

Affairs Authority Act, in discharging his

functions under these regulations, the

Director General shall have the same

p o w e r s a s pr e s c r i b e d u n d e r t h e A c t ,

including the power to investigate and to

institute judicial proceedings, as

established by the Act, before the Civil

Court.";

(c)

regulation 5 thereof shall be substituted by the

following

5. An operating air carrier that fails to

"Penalties.

comply with an obligation imposed on it by

Articles 4 to 6, 10, 11 or 14 of Regulation 261/

2004 shall be guilty of an infringement

punishable by a penalty of not less than four

hundred and se ve nty e ur o (€470) a nd not

exceeding five thousand euro (€5,000)

Provided that in the case of non-

compliance with a compliance order, the Civil

Court shall impose a daily penalty of not less

than one hundred and twenty euro (€120) and

not more than two hundred and thirty euro

(€230) for each day of non-compliance."; and

(d)

regulation 7 thereof shall be substituted by the following

7. Any person who feels aggrieved by a

"Right of

judgement, order, penalty or measure issued by

the Civil Court, may appeal before the Court of

Appeal, on any point of law and, or of fact, by

means of an application filed in the registry of the

Court of Appeal within twenty days from the date

of the judgment of the Civil Court

Provided that the Court of Appeal shall

appoint the case for hearing by not later than six

months from the judgement of the Civil Court.".

(10) The Rights of Passengers in Bus and Coach Transport Consequential

amendments to

Regulations shall be amended as follows

(a)

in regulation 2(1) thereof

(i) immediately after the definition "the Act" there

shall be added the following new definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3 of

the Civil Court (Establishment of Sections)

Order;";

(ii) the definition "the Competition and Consumer

Appeals Tribunal" shall be deleted;

(b)

regulation 3 thereof shall be substituted by the

following

3. (1) For the purposes of Regulation

"Designated

person,

(EU) No. 181/2011, the Director General is the

investigations

and judicial

designated person responsible for the

proceedings.

monitoring and the investigations with regard to

the compliance with the provisions of

Regulation (EU) No. 181/2011.

(2) Except where competences are

assigned to the Civil Court by the Act or by the

Malta Competition and Consumer Affairs

Authority Act, in discharging his functions

under these regulations, the Director General

shall have the same powers as prescribed under

the Act, including the power to investigate and

to institute judicial proceedings, as established

by the Act, before the Civil Court.";

(c) regulation 5 thereof shall be substituted by the

following

" Penalties.

5. Any person who fails to comply with

the obligations established in Regulation (EU)

No. 181/2011 shall be guilty of an infringement

punishable by a penalty of not less than four

hundred and seventy euro (€470) and not

exceeding forty-seven thousand euro (€47,000)

Provided that in the case of non-

compliance with a compliance order issued in

terms of the Act, the Civil Court shall impose a

daily penalty of not less than one hundred and

twenty euro (€120) and not more than two

hundred and thirty euro (€230) for each day of

non-compliance.";

(d) regulation 6 of the principal regulations shall be

substituted by the following

6. Any person who feels aggrieved by a

"Right of

appeal.

judgement, order, penalty or measure issued by

the Civil Court, may appeal before the Court of

Appeal, on any point of law and, or of fact, by

means of an application filed in the registry of

the Court of Appeal within twenty days from the

date of the judgment of the Civil Court

Provided that the Court of Appeal

shall appoint the case for hearing by not later

than six months from the judgement of the Civil

Court."; and

(e)

regulation 7 thereof shall be deleted.

(11) The Rights of Passengers when travelling by Sea and Inland Consequential

amendments to

Waterway Regulations shall be amended as follows

(a)

in regulation 2(1) thereof

(i) immediately after the definition "the Act" there

shall be added the following new definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3 of

the Civil Court (Establishment of Sections)

Order;"; and

(ii) the definition "the Competition and Consumer

Appeals Tribunal" shall be deleted;

(b) regulation 3 thereof shall be substituted by the

following

3. (1) For the purposes of Regulation

"Designated

(EU) No. 1177/2010, the Director General is the

investigations

and judicial

designated person responsible for the monitoring

proceedings.

and the investigations with regard to the

compliance with the provisions of Regulation

(EU) No. 1177/2010.

(2) Except where competences are assigned

to the Civil Court by the Act or by the Malta

Competition and Consumer Affairs Authority

Act, in discharging his functions under these

regulations, the Director General shall have the

same powers as prescribed under the Act,

including the power to investigate and to

institute judicial proceedings, as established by

the Act, before the Civil Court.";

(c)

regulation 5 thereof shall be substituted by the

5. Any person who fails to comply with

the obligations established in Regulation (EU) No.

181/2011 shall be guilty of an infringement

punishable by a penalty of not less than four

hundred and seventy euro (€470) and not

exceeding forty-seven thousand euro (€47,000)

Provided that in the case of non-

compliance with a compliance order issued in

terms of the Act, the Civil Court shall impose a

daily penalty of not less than one hundred and

twenty euro (€120) and not more than two

hundred and thirty euro (€230) for each day of

non-compliance.";

(d) regulation 6 thereof shall be substituted by the

6. Any person who feels aggrieved by a

judgement, order, penalty or measure issued by the

Civil Court, may appeal before the Court of Appeal,

on any point of law and, or of fact, by means of an

application filed in the registry of the Court of

Appeal within twenty days from the date of the

judgment of the Civil Court

Provided that the Court of Appeal shall

appoint the case for hearing by not later than six

months from the judgement of the Civil Court."; and

(e)

regulation 7 thereof shall be deleted.

(12) The Consumer Rights Regulations shall be amended as

(a) in regulation 2(1) thereof immediately after the

definition "business premises" there shall be added the following

new definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3 of the

Civil Court (Establishment of Sections) Order;";

and

(b)

regulation 27 thereof shall be substituted by the

following

27. (1) Subject to the provisions of the Act

"Penalties and

right to

regarding judicial proceedings instituted by the

appeal.

Director General following his prima facie finding

of infringements, the Civil Court shall impose

penalties of not less than five hundred euro (€500)

and not more than forty-seven thousand euro

(€47,000) on any person who fails to comply with

any of the provisions of these regulations.

(2) Any person who feels aggrieved by a

judgement, order, penalty or measure issued by the

Civil Court, may appeal before the Court of

Appeal, on any point of law and, or of fact, by

means of an application filed in the registry of the

Court of Appeal within twenty days from the date

of the judgment of the Civil Court

Provided that the Court of Appeal shall appoint

the case for hearing by not later than six months

from the judgement of the Civil Court.".

(13) The Consumer Alternative Dispute Resolution (ADR) Consequential

amendments to

(General) Regulations shall be amended as follows

(a) in regulation 2(2) thereof immediately after the

definition "the Act" there shall be added the following new

definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3 of

the Civil Court (Establishment of Sections)

Order;";

(b)

Part IV thereof shall be deleted; and

(c)

immediately after regulation 20 thereof there shall be

added the following new regulations

" Application of

21. Articles 43D, 43E and 43F of the Act

certain

a

n

d

Part IIA of the Act shall apply to

provisions of the

Act with regard investigations by the Council with regard to

to investigations

compliance with the provisions of these

and judicial

proceedings.

regulations, and to any subsequent judicial

proceedings instituted by the Council before

the Civil Court.

22. (1) Subject to the provisions of the

Penalties and

right of appeal.

Act regarding judicial proceedings instituted

by the Council following its prima facie

finding of infringements, the Civil Court shall

impose penalties of not less than five hundred

euro (€500) and not more than ten thousand

euro (€10,000) on any person who fails to

comply with any of the provisions of these

regulations

Provided that, the Civil Court may also

impose penalties of not less than twenty euro

(€20) but not more than one hundred euro

(€100) for each day of non-compliance on any

person who fails to abide with any

requirements under these regulations or with

any orders or measures issued by the Civil

Court.

(2) Any person who feels aggrieved by

a judgement, order, penalty or measure issued

by the Civil Court, may appeal before the

Court of Appeal, on any point of law and, or

of fact, by means of an application filed in the

registry of the Court of Appeal within twenty

days from the date of the judgment of the

Civil Court

Provided that the Court of Appeal

shall appoint the case for hearing by not later

than six months from the judgement of the

Civil Court.".

(14) The Control of Concentrations Regulations shall be amended

as follows

(a)

regulation 2 thereof shall be amended as follows

(i)

the definition "Appeals Tribunal" shall be

deleted;

(ii) in the definition "concentration" the words

"combined aggregate turnover of the undertakings

concerned" shall be substituted by the words "combined

aggregate turnover in Malta of the undertakings

concerned";

(iii) immediately after the definition "control" there

shall be added the following new definition

" "Court" means the Civil Court

(Commercial Section) established by article 3

of the Civil Courts (Establishment of Sections)

Order;";

(b) sub-regulation (6) of regulation 9 thereof shall be

substituted by the following

"(6) Where the Court in a judgement annuls the

whole or part of a decision adopted under these regulations

by the Director General, the periods laid down in these

regulations shall start again from the date of the judgment

of the Court, or if an appeal from the judgment of the Court

has been filed, from the date of the judgment of the Court

of Appeal.";

(c)

regulation 10 thereof shall be amended as follows

(i) in sub-regulation (2), immediately after the

words "purpose of the request" there shall be added the

words "specify what information is required and fix a time

limit within which the information is to be provided"; and

(ii)

sub-regulation (3) shall be deleted;

(d)

regulation 11 thereof shall be amended as follows

(i) in sub-regulation (1) immediately after the

word "power" there shall be added the words "to conduct

an inspection and"; and

(ii)

sub-regulation (2) shall be deleted;

(e)

immediately after regulation 12 thereof there shall be

added the following new regulation

12A. The provisions of article 12A of the Act

"Contents of

shall, mutatis mutandis, apply when the Director

application.

General requests the imposition of a penalty on a

person, undertaking, and, or association of

undertakings pursuant to regulations 13 and 14.";

(f) sub-regulation (1) of regulation 13 thereof shall be

substituted by the following

"(1) The Court shall impose a penalty of not less

than one thousand euro (€1,000) and not more than ten

thousand euro (€10,000) on any person, undertaking and,

or association of undertakings that intentionally or

negligently

(i) fails to notify a concentration in

accordance with regulation 5 before implementation;

(ii) supplies

incorrect

or

misleading

information in a notification pursuant to regulation 5;

(iii)

supplies incorrect information in

response to a request made pursuant to regulation 10

or fails to supply information within the period fixed

by the Director General pursuant to regulation 10;

(iv) produces the required books or other

business records in incomplete form during

investigations under regulation 11 or refuse to submit

to an investigation or inspection pursuant to

regulation 11.";

(g)

regulation 14 thereof shall be amended as follows

(i)

regulation 14 shall be renumbered as regulation

14(1);

(ii) the words "article 21(4) and (6)" in sub-

regulation (1) as renumbered shall be substituted by the

words "article 21(7)";

(iii) in paragraph (i) the words "to supply complete

and correct information requested by decision pursuant to

regulation 10" shall be substituted by the words " to supply

complete and correct information pursuant to regulation

10";

(iv) in paragraph (ii) the words "to submit to an

investigation ordered by decision pursuant to regulation

11" shall be substituted by the words "to submit to an

investigation pursuant to regulation 11"; and

(v) immediately after sub-regulation (1) thereof as

renumbered there shall be added the following new sub-

regulation

"(2) Where a person, being a director, manager,

secretary or other similar officer of an undertaking or

association of undertakings fails without reasonable

cause to supply information requested within the

time given, the Court may impose a penalty of up to

two thousand and four hundred euro (€2,400) for

each day in default.";

(h) regulation 14A thereof shall be substituted by the

following;

14A. The provisions of article 13B of the Act

"Application

of article 13B

shall, mutatis mutandis, apply to judgements

of the Act.

delivered by the Court pursuant to regulations 13

and 14.";

(i) sub-regulation (1) of regulation 16 thereof shall be

amended as follows

(i) in paragraph (a), the words "the proviso to

regulation 8(2), regulation 8(3) to (5), regulation 13 and

14" shall be substituted by the words "the proviso to

regulation 8(2) and regulation 8(3) to (5)";

(ii) in paragraph (b), the words "the proviso to

regulation 8(2), regulation 8(3) to (5), regulation 13 and

regulation 14" shall be substituted by the words, "the

proviso to regulation 8(2) and regulation 8(3) to (5)";

(iii) in paragraph (c), the words "the proviso to

regulation 8(2), regulation 8(3) to (5), regulation 13 and

regulation 14" there shall be substituted the words "the

proviso to regulation 8(2) and regulation 8(3) to (5)";

(j)

regulation 18 thereof shall be substituted by the

following

18. (1) The persons, undertakings or

"Right to

request an

association of undertakings concerned and any

appeal before

the Civil Court

third party entitled to a hearing under regulation

(Commercial

16(5) may, within twenty days of the

Section) and to

appeal to the

notification of the final decision of the Director

Court of Appeal.

General, pursuant to regulations 6, 7 and 8 or in

the case of third parties within twenty days of its

publication, file an application before the Court

on points of law and, or of fact, requesting an

appeal from the decision of the Director

General.

(2) The application shall be notified to the

Director General and the Director General shall

file his reply thereto within twenty days from the

date of notification of the application.

(3) An application filed before the Court in

accordance with sub-regulation (1) shall not have

the effect of suspending the decision unless the

Court, upon a reasoned claim raised by the party

concerned in the proceedings, and after

considering the submissions of all parties to the

proceedings, suspends the decision under such

conditions as it may deem fit, stating its reasons

therefore, pending the final determination of the

appeal.

(4) The Court shall have the power to

substitute its discretion for that of the Director

General including the power to either confirm or

modify or quash in whole or in part, the decision

of the Director General

Provided that where the Court quashes

the whole or part of the decision of the Director

General, it may refer the matter back to the

Director General to take a new decision.

(5) The Director General and any party to

the proceedings before the Court who feels

aggrieved by the judgment delivered by the said

Court may appeal on points of law and, or of fact

before the Court of Appeal, by means of an

application filed in the registry of that court

within twenty days from the date of the judgment

of the Court.

(6) The undertakings concerned, the

Director General and any third parties may

request the Court to be heard behind closed doors

where the submissions to be made or evidence to

be produced is of a confidential nature or

contains business secrets.

(7) (a) A confidential and a non-

confidential version shall be produced of any

written observations and documentary evidence

submitted before the Court; and

(b) The Court shall verify the

confidentiality or otherwise of the information

submitted.

(8) In the interpretation of these regulations

the Court may have recourse to the judgments of

the Court of Justice of the European Union, and

to relevant decisions and statements of the

European Commission including interpretative

notices on the relevant provisions of the TFEU

and secondary legislation relative to competition

and may also refer to its decisions and those of

the Competition and Consumer Appeals

Tribunal.

(9) Subject to the provisions under these

regulations, the provisions of the Code of

Organization and Civil Procedure shall, mutatis

mutandis, apply to proceedings before the

Court.";

(k) immediately after regulation 18 thereof there shall be

added the following new regulation

18A. Article 26A of the Act shall,

"Prescription

concerning the

mutatis mutandis, apply in relation to the

imposition of

penalties.

prescription period for the imposition of

penalties.";

(l) regulation 20 thereof shall be substituted by the

following

"20. In the interpretation of regulation 4(4) and of

regulation 4(2)(b), the Director General shall have recourse to –

(a) the judgements of the Court and his own

previous decisions;

(b) judgements of the Court of Justice of the

European Union;

(c) relevant

decisions

of

the

European

Commission;

(d) interpretative Notices and Guidelines of the

European Commission on the relevant provisions of the

TFEU and secondary legislation relative to competition;

and

(e)

other pertinent foreign jurisprudence."; and

(m) the Schedule thereof shall be amended as follows

(a) in section B(e) thereof, the words "an

administrative fine" shall be substituted by the word

"penalty" and the words ", as imposed by the Director

General" shall be deleted; and

(b) in section E thereof, the words "Malta

Competition and Consumer Affairs Authority Office for

Fair Trading Cannon Road Sta. Venera SVR 1411 Malta";

shall be substituted by the words "Malta Competition and

Consumer Affairs Authority Office for Competition Mizzi

House National Road Blata l-Bajda HMR 9010 Malta".

(15) The Establishment of Sanctions and Penalties Regulations

shall be amended as follows

(a)

in regulation 2(1) thereof

(i)

the definition "Appeals Board" shall be deleted;

and

(ii) immediately after the definition "the body

responsible for consumer protection" there shall be added

the following new definition

" "Civil Court" means the Civil Court

(Commercial Section) established by article 3 of

the Civil Court (Establishment of Sections)

Order;";

(b)

regulation 3 thereof shall be substituted by the

following

3. In the carrying out of its functions

"Investigations,

judicial

under article 10(2) of the Act and under

proceedings and

penalties.

regulation 7 of the Designation of Various

Entities Regulations, the body responsible for

consumer protection shall, as it deems fit and

as far as applicable, with regard to

investigations, judicial proceedings and

requests for the imposition of penalties, follow

the procedure established in articles 12 and

12A of the Consumer Affairs Act and in Parts

IIA, IIB, XII and XIIA of the Consumer Affairs

Act

Provided that subject to the provisions

of the Consumer Affairs Act, the Civil Court

shall impose penalties of not less than four

hundred seventy euro (€470) and not more than

forty-seven thousand euro (€47,000) on any

person who fails to comply with any of the

provisions of these regulations."; and

(c) regulation 4 thereof shall be substituted by the

following

4. Any person who feels aggrieved by a

"Right of

appeal.

judgement, order, penalty or measure issued by

the Civil Court, may appeal before the Court of

Appeal, on any point of law and, or of fact, by

means of an application filed in the registry of

the Court of Appeal within twenty days from the

date of the judgment of the Civil Court

Provided that the Court of Appeal shall

appoint the case for hearing by not later than six

months from the judgement of the Civil Court.".

(16) The Appointment of the President of the Competition and Repeal of

Consumer Appeals Tribunal Regulations shall be repealed.

(17) Immediately after sub-paragraph (5) of item 4 of Tariff A in Consequential

Schedule A of the Code of Organization and Civil Procedure there amendments

to

shall be added the following new sub-paragraph

"(6) (a) Notwithstanding the provisions of

paragraphs 3 and 4 and in addition to t he fees

mentioned in paragraph 2, for the cases instituted

pursuant to the Competition Act and the Control of

Concentrations Regulations, the taxed fee shall be that

of six-hundred and fifty euro (€650).

(b) In the case of appeals from judgements

delivered according to the Competition Act and the

Control of Concentrations Regulations, sub-

paragraph (7) of paragraph 3 shall apply mutatis

mutandis.".

Passed by the House of Representatives at Sitting No. 229 of the

29th May, 2019.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€7.65