ACT No. XLV of 2021 An ACT to amend the Competition Act, Cap. 379 and the Malta Competition and Consumer Affairs Authority Act, Cap. 510 to implement Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition

I assent.

(L.S.)

GEORGE VELLA

President

23rd July, 2021

ACT No. XLV of 2021

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

Competition and Consumer Affairs Authority Act, Cap. 510 to

implement Directive (EU) 2019/1 of the European Parliament and of

the Council of 11 December 2018 to empower the competition

authorities of the Member States to be more effective enforcers and to

ensure the proper functioning of the internal market and also to

provide for such matters ancillary or incidental thereto or connected

therewith.

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 the

commencement.

Malta Competition and Consumer Affairs Authority (Amendment)

Act, 2021.

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

responsible for tourism and consumer protection 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 Competition Act

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

Act.

referred to as "the principal Act".

Article 2 of the principal Act shall be amended as follows

Amendment of

article 2 of the

principal Act.

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

shall be added the following new definition

" "competition authority" means a national

competition authority, the European Commission or both,

as the context may require;";

(b) immediately after the definition "Director General"

there shall be added the following new definition

" "document" includes information recorded in any

form;";

(c) immediately after the definition "European

Commission" there shall be added the following new definition

" "European Competition Network" means the

network of public authorities formed by the national

competition authorities and the European Commission to

provide a forum for discussion and co-operation as regards

the application and enforcement of Articles 101 and 102 of

the TFEU;";

(d)

the definition "group of undertakings" shall be

deleted;

(e) the definition "National Competition Authority" shall

be substituted by the following

" "National Competition Authority" means a national

competition authority as designated in terms of Article

35(1) of Council Regulation (EC) 1/2003 as being

responsible for the application of Articles 101 and 102 of

the TFEU;";

(f) immediately after the definition "restrictive practice"

there shall be added the following new definition

" "settlement submissions" means a voluntary

presentation by, or on behalf of, an undertaking and, or an

association of undertakings to the Office, describing the

undertaking's and, or association of undertakings’

acknowledgement of, or its renunciation to dispute, its

participation in an infringement of articles 5 and, or 9 of

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

responsibility for that infringement, which was drawn up

specifically to enable the Office to apply a simplified or

expedited procedure in terms of article 12B of the Act";

(g)

the definition "turnover" shall be deleted;

(h) immediately after the definition "TFEU", there shall

be added the following new definition

" "total worldwide turnover" means the annual total

worldwide turnover of an undertaking and, or association

of undertakings concerned;";

(i) the definition "undertaking" shall be substituted by

the following

" "undertaking" means any person whether an

individual, a body corporate or otherwise, or any other

entity engaged in an economic activity, regardless of its

legal status and the way in which it is financed.".

The proviso to article 3 of the principal Act shall be

substituted by the following

"Provided that the Director General may delegate any

of his powers to any officer within the Office.".

Article 12 of the principal Act shall be amended as follows

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

following

"(2) (a) During the course of any investigation

carried out by the Office in accordance with sub-article (1),

the Director General may request any undertaking or

association of undertakings to furnish him with any

information or document which are accessible to such

undertaking and, or association of undertakings,

irrespective of where it is stored for the application of

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

102 of the TFEU, which the Director General has reason to

believe are necessary to the matter under investigation

within such time that in the circumstances of the

investigation

the

Director

General

may

consider

reasonable

Provided that such requests for information

shall be proportionate and the Director General may also

request the manner and form in which the information or

document are to be produced or provided

Provided further that during the course of any

investigation carried out by the Office in accordance with

sub-article (1), the Director General may request any other

natural or legal persons to provide any information or

document that may be relevant for the application of

articles 5 and, or 9 of this Act and, or Articles 101 and 102

of the TFEU within a specified and reasonable time limit.

(b) During the course of any investigation carried

out by the Office in accordance with sub-article (1), the

Director General may also summon any representative of

an undertaking or association of undertakings, any

representative of other legal persons, and any other person,

where such representative or person may possess

information relevant for the application of articles 5, and or

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

to appear for an interview at a place and time as specified

by the Director General to answer questions with respect to

any matter relevant to the investigation

Provided that the Director General may record

the interview in any manner and form deemed appropriate

by him.

(c) Nothing in this sub-article may be construed as

authorising the Director General to order the production of

any document or the disclosure of any information which

may be subject to the duty of professional secrecy, except

where such disclosure is allowed under the law.

(d) 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 (6) thereof shall be substituted by the

following

"(6) In the course of any investigation, whether

during an interview or inspection, the Director General

may take statements from any person, as well as make

copies of any document produced to him, and the record of

such statements and such copies duly attested by the

Director General shall be producible as evidence before the

Court and before any other court of law.";

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

following

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

authorised by him and, or any other person authorised or

appointed by the Director General duly authorised by a

warrant issued by a Magistrate may, for the purpose of any

investigation under this article conduct all necessary

unannounced inspections and enter into and search

premises, land or means of transport of undertakings and,

or association of undertakings for the application of

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

102 of the TFEU.

(b) The Director General and, or his officers

authorised by him and, or any other person

authorised or appointed by the Director General, duly

authorised by a warrant issued by a Magistrate, may,

for the purpose of any investigation under this article,

conduct all necessary unannounced inspections and

enter into and search any premises, land or means of

transport, other than those referred to in paragraph

(a) of this sub-article, including the homes of

directors, managers, and other members of staff of

undertakings or associations of undertakings, where

the Director General has a reasonable suspicion that

documents related to the undertaking and, or

association of undertakings and to the subject matter

of the inspection, which may be relevant to prove an

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

Articles 101 and, or 102 of the TFEU are being kept

in those premises, land or means of transport

Provided that the Magistrate in deciding

whether to issue a warrant under sub-articles (7)(a)

and (b) shall ensure that the coercive measures

envisaged are neither arbitrary nor excessive.

(c) In the course of any search pursuant to

paragraphs (a) and (b) of this sub-article, the Director

General and, or any authorised officer and, or any

other person authorised or appointed by the Director

General shall be empowered to

(i) inspect and examine any object or

document, including books and other records

related to the business, irrespective of the

medium on which they are stored and access

any information or document which are

accessible to the entity subject to the

inspection

Provided that this includes the

power to search for documents, files or data on

devices which are not precisely identified in

advance

Provided further that the power to

examine books or records covers all forms of

correspondence, including electronic messages

irrespective of whether they appear to be

unread or have been deleted;

(ii) seize and confiscate any object or

document, or take or obtain in any form, copies

of or extracts from such books or records or any

other document and where they consider it

appropriate, to continue making such searches

for information and the selection of copies or

extracts at the premises of the office or at any

other designated premises;

(iii) require any information which is

stored in a computer or any other object or

device including external servers and cloud

services which are 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 objects 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 books or records or any other object or

document under seal for the period and to the

extent necessary for the inspection;

(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.

(d) Notwithstanding

any

provisions

contained in the Criminal Code, the Director General

shall have the right to appeal against a decision of the

Court of Magistrates to refuse to issue a warrant

under this sub-article, before the Court of Criminal

Appeal within five days from the date of such a

decision and the Court of Criminal Appeal shall

endeavour to decide in the shortest time possible.";

(d) sub-article (8) thereof shall be substituted by the

following

"(8) (a) The warrant mentioned in sub-articles

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

the inspection, the date on which the inspection shall begin

and the relevant penalties provided for in article 21.

(b) The powers conferred by article 12(7) 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 the said article.

(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-articles (7)(a) and (b) may take with them

such equipment as appears to them to be necessary.".

Article 12A of the principal Act shall be amended as follows

Amendment of

article 12A of

the principal

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

Act.

following

"(1) Where, following an investigation, the Director

General considers that 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 in Court

a sworn application

Provided that for the purposes of this sub-

article the Director General may also consider that 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 at some time in the past

Provided further that for the purposes of the

previous proviso, it is immaterial whether the agreement,

decision, concerted practice or conduct in question remains

in existence

Provided further that where the Director

General considers that an agreement or concerted practice

infringes article 5(1) of this Act and, or Article 101(1) of

the TFEU, the Director General may institute proceedings

against a number of undertakings which are less than those

undertakings who actually are a party or were a party to

that agreement or concerted practice, or are, or were

engaged in that conduct.";

(b) in paragraph (c) of sub-article (2) thereof the words

"Contain a request" shall be substituted by the words "Where

appropriate, contain a request";

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

carried out by him." shall be substituted by the words

"investigation carried out by him:" and immediately thereafter

there shall be added the following new proviso

"Provided that where the Director General

institutes proceedings relating to a matter in respect of

which he has received a complaint, he may provide the

complainant with a copy of the non-confidential version of

the report.";

(d) sub-article (6) thereof shall be substituted by the

following

"(6) During court proceedings, the undertaking and,

or association of undertakings concerned in receipt of a

sworn application, shall, upon a request to this effect, be

entitled to have access to the file of the investigation

concerning their case, without prejudice to the non-

disclosure of information or documents identified by the

Director General deemed to contain business secrets, or

other confidential information, or 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

Provided that any document forming part of the

access to the file may be provided by the Director General

to the defendant in different sittings.";

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

following

"(7) In the interpretation of this Act and of any

regulations made thereunder and in the exercise of his

responsibilities under this Act and any regulations made

thereunder, the Director General shall have recourse to the

judgements of the Court of Justice of the European Union,

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 those of the Court and to those of the

Competition and Consumer Appeals Tribunal and the

Commission for Fair Trading

Provided that the Director General may have

recourse to other sources as long as they are consistent with

the competition law judgements of the Court of Justice of

the European Union and to decisions and statements of the

European Commission."; and

(f)

immediately after sub-article (7) thereof there shall

be added the following new sub-article (8)

"(8) Notwithstanding any other provision in the

Code of Organisation and Civil Procedure, the evidence Cap. 12.

admissible before the Court and in case of an investigation,

before the Office, shall include documents, oral statements,

electronic messages, recordings and all other objects

containing information, irrespective of the form it takes

and the medium on which the information is stored.".

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

Amendment of

article 12B of

the principal

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

Act.

following

"(1) The Director General together with any

undertaking and, or association of undertakings shall have

the right to demand, either during the course of the

investigation before the Office or at any stage after the

closure of the said investigation, that the investigation or

the proceedings before the Court, as the case may be, are

terminated by mutual consent between the Director

General and the undertaking and, or the association of

undertakings concerned by means of the settlement

procedure, which includes the finding of an infringement

in terms of article 13(1) and the imposition of a penalty by

the Court in terms of article 21(1) as provided for in this

article.";

(b) in sub-article (2) thereof the words "which includes

the imposition of a penalty by the said Court:" shall be

substituted by the words "which includes the finding of an

infringement in terms of article 13(1) and the imposition of a

penalty in terms of article 21(1) by the said Court.";

(c) in sub-article (5) thereof the words "by a joint

application to be filed before the Court" shall be substituted by

the words "before the Office";

(d) sub-article (6) thereof shall be substituted by the

following

"(6) (i) 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 in regard to other

parties subject to the relevant investigation before the

Office, save where the Director General has given a prior

explicit authorization for disclosure.

(ii) Settlement submissions shall only be

accessible to the undertakings and, or the association

of undertakings which are subject to the relevant

investigation before the Office or are subject to

relevant proceedings before the Court instituted in

terms of the Act or are subject to any relevant

proceedings before the Court of Appeal and only for

the purposes of exercising their rights of defence.

(iii) The party who has obtained access to the

file during investigations before the Office or

proceedings before the Court or the Court of Appeal

may only use information taken from settlement

submissions submitted in terms of the Act where

necessary, to exercise its rights of defence in

proceedings before the courts of Malta in cases that

are directly related to the case for which access has

been granted, and only where such proceedings

concern

(a) the allocation between cartel

participants of a penalty imposed jointly and

severally on them by the Court; or

(b) the appeal before the Court of

Appeal of a judgement by the Court finding an

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

Articles 101 and, or 102 of the TFEU.

(iv) The parties granted access to settlement

submissions together with their legal counsels who

are granted access on their behalf, cannot make any

copy by mechanical or electronic means of any

information in the settlement submissions to which

access is being granted.";

(e)

sub-article (7) thereof shall be amended as follows

(i) in the introductory part preceding paragraph (a)

thereof, the words "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:" shall be substituted by the words "The

settlement submissions submitted before the Office

pursuant to sub-article (5) shall be produced together with

the joint application and shall contain a voluntary

statement by the undertaking and, or association of

undertakings concerned containing the following

information:";

(ii) in paragraph (c) thereof the word "maximum" shall

be deleted;

(iii) in paragraph (f) thereof the words "challenge in any

way the settlement procedure or the judgement of the Court

including the penalty: and" shall be substituted by the words

"challenge in any way the settlement procedure, the investigation

related to the settlement procedure, or the judgement of the

Court including the penalty; and also waiver of any action or

claim deriving from the same settlement procedure and, or

related to the investigation related to the settlement procedure

and, or related to the judgement of the Court and, or the

penalty;";

(iv) paragraph (g) thereof shall be substituted by the

following

"(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 with the facts together with the legal assessment of

the facts of the infringement as established by the Director

General in the joint application; and";

(v) immediately after paragraph (g) thereof there shall be

added the following new paragraph (h)

"(h) a statement by the undertaking and, or

association of undertakings concerned that it agrees that a

joint application is filed in Court together with the Director

General to terminate the investigation or the proceedings,

as the case may be, by means of the settlement procedure,

and to request the Court to deliver a judgement on the basis

of the joint application

Provided that the joint application shall also

include the following information by the Director General

(i) a short description of the facts of the

infringement and the legal assessment of the

infringement; and

(ii) the specific amount of the penalty that the

Director General is requesting to be imposed on the

undertaking and, or association of undertakings

concerned;"; and

(f) in sub-article (9) thereof, the words "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" shall be substituted by

the words "by reducing the penalty which would otherwise have

been requested by the Director General to be imposed by the

Court in terms of article 21(1) of the Act by ten to thirty-five per

centum (10-35%)".

Article 12C of the principal Act shall be amended as follows

(a) in sub-article (4) thereof the words "business secrets

or other confidential information." shall be substituted by the

words "business secrets or other confidential information:" and

immediately thereafter there shall be added the following new

proviso

"Provided that the Director General may

request the authorisation of the Court to seek the views of

market participants or of any other third parties by

informing them directly regarding the proposed

commitments, which request shall also include the

authorization of the Court on the manner in which the said

proposed commitments are to be published and the time

within which all views of market participants or of any

other third parties should be received in the registry of the

Court.";

(b) immediately after sub-article (6) thereof there shall

be added the following new sub-article (7)

"(7) The Office shall have the powers to monitor the

effective implementation of the commitments referred to in

sub-article (1) or in article 17 and for this purpose, article

12 shall apply mutatis mutandis.".

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

9. following

artikolu 12D tal-

Att prinċipali.

The following categories of information obtained

"Access to file

by a party during an investigation of the Office or during

proceedings before the Court shall not be used by that

party in proceedings before the Courts of Malta, unless the

Court has closed its proceedings before it with respect to

all parties under investigation by delivering a judgement

referred to in articles 12C, 13 or 13A, or otherwise has

terminated its proceedings, or unless the Office has closed

its investigation before it with respect to all parties under

investigation by delivering a decision in accordance to

article 17, or otherwise has terminated its investigation

(a) information that was prepared by other

natural or legal persons specifically for the

investigation carried out by the Office or the

proceedings before the Court;

(b) information that the Office has drawn up

and sent to the parties in the course of its

investigation; and

(c) settlement submissions that have been

withdrawn.".

10. In article 13 of the principal Act, immediately after sub-article Amendment of

(2) thereof, there shall be added the following new sub-article (3)

"(3) Where the Office had informed the European

Commission in accordance with Article 11(3) of Regulation

(EC) No. 1/2003 and the Court decides that there are no grounds

to continue proceedings before it and as a result closes those

proceedings, the Office shall inform the European Commission

accordingly.".

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

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

"in terms of articles 12C or 13 of the Act" shall be substituted by

the words " in terms of articles 12C, 13, 13A or 21 of the Act";

(b) in sub-article (6) thereof the words "enforcement of

judgements." shall be substituted by the words "enforcement of

judgements and decrees.";

(c) in sub-article (7) thereof the words "may have

recourse" shall be substituted by the words "shall have recourse";

(d)

immediately after sub-article (7) thereof there shall

be added the following new sub-article (8)

"(8) Proceedings before the Court concerning

alleged infringements of articles 5 and, or 9 of the Act and,

or Articles 101 or 102 of the TFEU, including the exercise

of the powers by the Director General and the Office under

this Act and, or any regulation made thereunder applying

those articles, shall comply with general principles of

Union law and the Charter of Fundamental Rights of the

European Union.".

Article 14 of the principal Act shall be amended as follows

12. (a) in sub-article (2) thereof the words "he shall inform

the complainant." shall be substituted by the words "he shall

inform the complainant:" and immediately thereafter there shall

be added the following new proviso

"Provided that where, having informed the

European Commission in accordance with Article 11(3) of

Regulation (EC) No. 1/2003, the Office decides that there

are no grounds to continue the investigation and as a result

closes the investigation, the Office shall inform the

European Commission accordingly.";

(b) in sub-article (4) thereof the words "twenty days

from the date of the judgment of the Court." shall be substituted

by the words "twenty days from the date of the judgment of the

Court:" and immediately thereafter there shall be added the

following new proviso

"Provided that in case of any proceedings

instituted under this article before the Court or the Court of

Appeal, the Director General shall act as an official party

to the proceedings and enjoy the same rights which pertain

to his counterparty.".

Article 15 of the principal Act shall be amended as follows

(a) the first proviso to sub-article (1) thereof shall be

substituted by the following

"Provided that any decree imposing interim

measures issued according to this provision shall be

enforceable upon its delivery and any interim measure

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

the Court:";

(b) in sub-article (2) thereof the words "in support of the

demand that is being filed." shall be substituted by the words "in

support of the demand that is being filed:" and immediately

thereafter there shall be added the following proviso

"Provided that together with the application,

the Director General may also include a report in the

English language with any findings in order to sustain his

demand.";

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

following

"(3) The application shall be served on the

undertakings and, or associations of undertakings

concerned which shall file a reply thereto within eight days

from the date of service of the application, containing all

the submissions together with all the documents in support

of the reply that is filed

Provided that the Court may reduce the said

period indicated in this sub-article, as it deems fit in the

circumstances.";

(d) in sub-article (5) thereof the words "service of such

an application." shall be substituted by the words "service of

such an application:" and immediately thereafter there shall be

added the following proviso

"Provided that an appeal filed in accordance

with this sub-article shall not have the effect of suspending

any interim measures imposed by the Court.";

(e) immediately after sub-article (6) thereof there shall

be added the following new sub-article (7)

"(7) The Office shall inform the European

Competition Network of the interim measures imposed in

case of a prima facie finding of an infringement of Article

101 and, or Article 102 of the TFEU, referred to in sub-

article (1).".

Article 16 of the principal Act shall be substituted by the Substitution of

article 16 of the

principal Act.

following

When an undertaking and, or an association of

undertakings cooperates with the Office to uncover

of article 5 of agreements between undertakings and, or decisions of an

the Act and, or association of undertakings and, or a concerted practice

that infringes article 5 of this Act and, or Article 101 of

the TFEU and where the existence of such an agreement,

decision or concerted practice is partially or wholly

concealed, the provisions contained in the Immunity from

Penalties and Reduction of Penalties in Cartel

2021. Investigations Regulations shall apply mutatis mutandis.".

15. Article 17 of the principal Act shall be substituted by the

following

(1) Notwithstanding anything contained in this

"Commitments

decision by the

Act, the Director General may at his own discretion,

instead of instituting judicial proceedings according to

article 12A of this Act requesting the Court to issue a

judgement declaring commitments to be binding on

undertakings and, or association of undertakings pursuant

to article 12C of this Act, decide to issue a commitments

decision to make commitments binding on the

undertaking or association of undertakings.

(2) For the purposes of sub-article (1), in an

investigation initiated with a view to adopt a decision

requiring that an infringement of article 5 and, or 9 of this

Act and, or Article 101 and, or 102 of the TFEU be

brought to an end, the Director General may, after

formally or informally seeking the views of market

participants, by decision make commitments offered by

undertakings or associations of undertakings binding,

where those commitments meet the concerns expressed by

the Director General. Such a decision may be adopted for

a specified period, and shall conclude that there are no

longer grounds for action by the Director General

Provided that the Director General may re-open

the proceedings where it results to him that there has been

a material change in any of the facts on which the decision

was based, or where the undertakings or association of

undertakings act contrary to their commitments, or where

a decision referred to in this sub-article was based on

incomplete, incorrect or misleading information provided

by the parties.

(3) (a) Where the Director General intends to

adopt a decision under this article, he shall, besides other

methods that the Director General may adopt to seek the

views of market participants, publish a concise summary

of the case and the main contents of the commitments or

of the proposed course of action.

(b) Interested third parties may submit their

observations within the time-limit set by the

Director General in the publication.

(c) The time-limit mentioned in paragraph

(b) may not be less than one month.

(d) In the publication mentioned in

paragraph (a) the Director General shall have regard

to the legitimate interest of undertakings in the

protection of business secrets or other confidential

information.

(4) Any person, undertaking or association of

undertakings concerned may contest any commitments

decision adopted by the Director General by filing an

application before the Court within twenty days from the

date of publication of the decision on the Authority’s

website

Provided that the application shall be served on

the Director General and the said Director General shall

file his reply thereto within twenty days from the date of

service of the application.

(5) The Court may either confirm in whole or in part,

or modify or quash the decision of the Director General.

(6) The Director General and any party to the

proceedings before the Court who feels aggrieved by a

judgement of the Court in terms of this article may appeal

on points of law and, or fact to 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 the

Court

Provided that in case of any proceedings

instituted under this article before the Court or the Court

of Appeal, the Director General shall act as one of the

parties to the proceedings and shall enjoy the same rights

which pertain to his counter-party.

(7) Upon publication of the decision of the Director

General pursuant to article 19 such decision shall, without

prejudice to the rights stipulated under this article,

constitute an executive title for all effects and purposes of

Title VII of Part I of Book Second of the Code of

Organization and Civil Procedure

Provided however that, notwithstanding the

provisions of article 256(2) of the Code of Organization

and Civil Procedure, the executive title referred to in this

sub-article shall not be enforceable before the lapse of

twenty days from the publication of the decision on the

Authority's website and that decision has not been

contested.

(8) Without prejudice to paragraph (c) of sub-article

(1) of article 14 of the Malta Competition and Consumer

Affairs Authority Act, for the purposes of this article the

Office

(a) shall also have the responsibility to

determine and suppress restrictive practices through

the issuing of a commitments decision; and

(b) with regard to the application of Articles

101 and 102 of the TFEU, shall also be designated

as the competent competition authority together

with the Court pursuant to Council Regulation (EC)

No. 1/2003 on the implementation of the rules on

competition laid down in Articles 81 and 82 of

Regulation 1/2003 to adopt commitments

decisions.".

Article 19 of the principal Act shall be amended as follows

16. (a) sub-article (2) thereof shall be substituted by the

following

"(2) The Director General shall have the power,

subject to the protection of business secrets and other

confidential information, to publish any information and

any other material in connection with this Act or any

regulations made thereunder or in connection with the

responsibilities of the Office under article 14 of the Malta

Competition and Consumer Affairs Authority Act."; and

(b) immediately after sub-article (2) thereof there shall

be added the following new sub-article (3)

"(3) Notwithstanding the provisions of sub-article

(1) or of any other law, judgements of the Courts of Malta

shall not publish evidence taken from leniency statements

submitted pursuant to the Immunity from Penalties and L.N. 264 of

Reduction of Penalties in Cartel Investigations Regulations 2021.

and evidence from settlement submissions

Provided that the identity of the undertaking

and, or association of undertakings which submitted the

settlement submissions or the leniency statement shall be

published in the judgement.".

Article 21 of the principal Act shall be amended as follows

17. Amendment of

article 21 of the

principal Act.

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

following

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

than ten percent of the total worldwide turnover of an

undertaking and, or association of undertakings concerned

in the business year preceding the judgement imposing the

penalty under this sub-article, 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 worldwide turnover of

each member active on the market affected by the

infringement of the association of undertakings.";

(b)

sub-article (2) thereof shall be amended as follows

(a) in paragraph (a) thereof the words "annual

turnover of its members" shall be substituted by the words

"turnover of its members";

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

following

"(c) The financial liability of each undertaking in

respect to the payment of the penalty shall not exceed the

maximum amount in accordance with sub-article (1).";

(c) in sub-paragraph (iii) of paragraph (a) of sub-article

(3) thereof the words, "pursuant to article 12C" shall be

substituted by the words "pursuant to articles 12C or 17";

(d) immediately after sub-paragraph (iv) of sub-article

(4)(b) thereof there shall be added the following new sub-

paragraph (v)

"(v) the disclosure of information to any third party

not part of the relevant proceedings under this Act or the

copying of any documents made contrary to the provisions

of article 12B(6).".

(e)

sub-article (5) thereof shall be substituted by the

following

"(5) The Court shall impose a penalty on any

person, undertaking and, or association of undertakings not

exceeding fifty thousand euro (€50,000) or a penalty not

exceeding one per centum (1%) of the total worldwide

turnover of the undertaking or association of undertakings

in the business year preceding the judgement imposing the

penalty under this sub-article, whichever is the highest,

where any person, undertaking and, or association of

undertakings in the course of any investigation pursuant to

article 12 or in the course of a sector inquiry pursuant to

article 11A, intentionally or negligently

(a) give any false, misleading, incomplete or

incorrect information in response to a request for

information or question referred to in article 12, or

they do not supply the information within the

specified time limit;

(b) produce or furnish, or cause or knowingly

allow to be produced or furnished any document or

information which they know to be false in any

particular material;

(c) fail to comply with an inspection and, or

obstruct 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) and (b);

(d) break the seals affixed by officers of the

Office or other accompanying persons authorised or

appointed by the Director General during an

inspection;

(e) in response to a question referred to in

article12(7)(c)(vi), give an incorrect, misleading

answer, fail or refuse to provide a complete answer;

(f) disclose information to any third party

not party of the relevant proceedings under this Act

or make copies of any documents contrary to the

provisions of article 12B(6);

(g) fail to appear at an interview referred to

in article 12; or

(h) prevent or hinder any investigation or

sector inquiry.";

(f) sub-article (6) thereof shall be substituted by the

following

"(6) Where during the course of any investigation or

inquiry conducted under the Act, a person, being a director,

manager, secretary or any other similar officer of an

undertaking or association of undertakings or any other

person who has to reply to a request for information or a

question pursuant to article 12 knowingly or recklessly

(a) gives any false, incorrect or misleading

information;

(b)

supplies incomplete information;

(c)

prevents or hinders any investigation;

(d) 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

(e) fails without reasonable cause to supply

the information requested,

may be liable to a penalty of not less than

one thousand and five hundred euro (€1,500) and not

more than ten thousand euro (€10,000), and may also

be liable to a penalty of up to two thousand and four

hundred euro (€2,400) for each day in default.";

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

following

"(7) The Court shall impose on an undertaking and,

or association of undertakings, periodic penalty payments

determined in proportion to the average daily total

worldwide turnover of the undertaking and, or association

of undertakings concerned in the preceeding business year,

for each day of delay, calculated from the date set in the

judgement or decision issued by the Director General, as

the case may be, 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 articles 12C or 17;

(iv) to submit to an inspection and to produce

the required objects, documents or other records as

referred to in article 12;

(v) to supply complete information in

response to a request for information referred to in

articles 11A and 12;

(vi) to supply correct information and, or to

produce the requested documents in response to a

request for information referred to in articles 11A and

12;

(vii) to appear at an interview as referred to in

article 12; and

(viii) to stop from pursuing any other conduct

which is hindering the investigation or sector inquiry

and, or to rectify any acts or omissions.";

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

following

"(9) The Court may consider compensation paid as

a result of a consensual settlement when determining the

amount of a penalty to be imposed for an infringement of

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

102 TFEU in accordance with regulation 17(3) of the

Competition Law Infringements (Action for Damages)

Regulations as contained in the Schedule to the Act."; and

(i) immediately after sub-article (9) thereof there shall

be added the following new sub-articles (10), (11) and (12)

"(10) For the purposes of the imposition of penalties

on parent companies and legal and economic successors of

undertakings, the notion of undertaking in accordance with

the case law of the Court of Justice of the European Union

shall apply.

(11) The liability for the payment of any type of

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.

(12) Notwithstanding the provisions of any other

law, at any time prior to the delivery of a judgement

imposing a penalty under this article, the Court may

request the total worldwide turnover from any undertaking

and, or association of undertakings.".

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

Amendment of

article 26A of

the principal

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

Act.

following

"(1) Penalties or periodic penalty payments 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, penalties or

periodic penalty payments shall only be imposed under

article 21 of the Act when judicial proceedings are

instituted within three years after the termination of the

infringement.";

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

following

"(3) (a) The prescription period for the imposition

of penalties or periodic penalty payments by the Court

pursuant to article 21 of the Act shall be interrupted by any

formal investigative measure of the Director General or, in

the case of the application of Articles 101 and 102 of the

TFEU also, by any formal investigative measure of a

competition authority with a view to investigating or

instituting proceedings for the infringement.

(b) The prescription period for the imposition of

penalties or periodic penalty payments by the Court

pursuant to article 21 of the Act shall be interrupted for the

duration of the investigation or proceedings before the

national competition authorities of other Member States or

the European Commission in respect of an infringement

concerning the same agreement, decision of an association

of undertakings, concerted practice or other conduct

prohibited by Article 101 or 102 of the TFEU.

(c) The prescription period referred to in this sub-

article shall be interrupted with effect from the date of

notification of the first formal investigative measure to at

least one undertaking or association of undertakings which

has participated in the alleged infringement.";

(c) in sub-article (4) thereof the words "Actions which

interrupt" shall be substituted by the words "Formal investigative

measures which interrupt";

(d) in sub-article (5) thereof the words "in the

infringement." shall be substituted by the words "in the alleged

infringement.";

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

following

"(7) The interruption of the prescription period shall end

on the day the Court closes the proceedings before it by

delivering a judgement pursuant to articles 12C, 13, 13A or 21 of

this Act or when the Director General issues a decision in terms

of article 17 of this Act or when the Director General or the

Court conclude that there are no grounds for further action on

their part.";

(f)

immediately after sub-article (7) thereof there shall

be added the following new sub-article (8)

"(8) The prescription period for the imposition of

penalties and periodic penalty payments 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.".

The second proviso to sub-article (1) of article 27 of the Amendment of

principal Act shall be substituted as follows

"Provided further that where the competition issue

raised before any court of civil jurisdiction is subject to pending

proceedings instituted by the Director General before the Court,

or may be the subject of proceedings before the Court at any

point in time as contemplated in this Act, any other court of civil

jurisdiction where the competition issue mentioned in sub-article

(1) has been raised shall refer the proceedings to the competent

court.".

Sub-article (1) of article 30 of the principal Act shall be Amendment of

substituted by the following

"30. (1) Subject to the provisions of sub-article (2),

the provisions of this Act shall also apply to any

Government department or to any body corporate

established by law or to any company or other partnership

in which the Government, directly or indirectly, holds a

controlling interest or to which the Government has

granted special or exclusive rights in any field

Provided that article 460(1) of the Code of

Organisation and Civil Procedure shall not apply to the

provisions of this sub-article and to causes instituted by

the Director General pursuant to the provisions of this Act

against any Government department, authority, agency or

any other Government body, where in the opinion of the

Director General, the said Government department,

authority, agency or any other Government body performs

the function of an undertaking as defined under this Act.".

Part II

Amendments to the Malta Competition and Consumer Affairs

Authority Act

This Part amends the Malta Competition and Consumer

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

Malta Competition and Consumer Affairs Authority Act, hereinafter in

this Part referred to as "the principal Act".

Immediately after sub-article (2) of article 13 of the principal

Act there shall be added the following new sub-articles (3) and (4)

"(3) The Office for Competition shall have a

sufficient number of qualified staff and sufficient

financial, technical and technological resources that are

necessary for the effective performance of their duties,

and for the exercise of their powers for the application of

articles 5 and, or 9 of the Competition Act and, or Articles

101 and, or 102 of the TFEU.

(4) Without prejudice to national budgetary rules and

procedures, the Office for Competition shall be granted

independence in the spending of the allocated budget for

the purpose of carrying out its duties as set out in article

14 of this Act, the Competition Act and any regulations

made thereunder.".

Immediately after article 13 of the principal Act there shall be

added the following new article 13A

13A. (a) The Director General, his officers working

" Independence .

at the Office for Competition and any other person

assisting the Office for Competition shall

(i) perform their duties and exercise their

powers for the application of articles 5 and, or 9 of

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

of the TFEU, and any other responsibility vested in

the Office for Competition as emanating from this

Act, the Competition Act or any other regulation

made thereunder, impartially and in the interests of

the effective and uniform application of Articles 101

and, or 102 of the TFEU and independently from

political and other external influence;

(ii) neither seek nor take any instructions

from Government or any other public or private

entity when carrying out their duties and exercising

their powers for the application of articles 5 and, or

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

or 102 of the TFEU, without prejudice to the right of

the Government, where applicable, to issue general

policy rules that are not related to sector inquiries or

specific investigations of the Office for

Competition;

(iii) refrain from taking any action which is

incompatible with the performance of their duties

and, or with the exercise of their powers for the

application of article 5 and, or article 9 of the

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

the TFEU and are subject to procedures that ensure

that, for a reasonable period of time after leaving

office, they refrain from dealing with cases which

are, or were before the Office for Competition, that

could give rise to conflicts of interest as provided in

article 46 of this Act.

(b) Any person who takes decisions at the Office for

Competition exercising the powers contemplated in the

Competition Act or under any regulations made

thereunder shall not be dismissed from the Office for

Competition for reasons relating to the proper

performance of their duties, or to the proper exercise of

their powers for the application of articles 5 and, or 9 of

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

the TFEU

Provided that the person may be dismissed only if

he no longer fulfills the conditions required for the

performance of his duties, or if he has been found guilty

of serious misconduct under national law, which includes

the following

(i) if the person fails to perform his duties

impartially and independently, in relation to the

application of articles 5 and, or 9 of the Competition

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

of any duties in relation to his Office emanating

under this Act, the Competition Act and any

regulation made thereunder;

(ii) if the person has been found guilty by a

competent court of a criminal offence under article

28 of this Act;

(iii) if the person has been convicted of a

criminal offence affecting public trust, or of theft or

fraud.".

Sub-article (1) of article 14 of the principal Act shall be

amended as follows

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

following

"(a) to investigate restrictive practices which

allegedly distort or restrict competition and to act as

an official party in proceedings instituted by the

Director General and in such manner he shall enjoy

the same rights which pertain to his counter-party in

court proceedings, before the Civil Court under the

Competition Act and in case when there is an appeal

from judgements of the Civil Court delivered under

the Competition Act, before the Court of Appeal;";

(b) paragraph (f) thereof shall be substituted by the

following

"(f) to

encourage

undertakings

and

associations of undertakings to comply with

competition law and to promote sound trading

practices and to promote public awareness of

articles 5 and 9 of the Competition Act and Articles

101 and 102 of the TFEU;";

(c) paragraph (k) thereof shall be substituted

by the following

"(k) to co-operate closely in the

European Competition Network with a view to

ensuring the effective and uniform application

of Articles 101 and 102 of the TFEU and to

participate in meetings organised by

international agencies and organisations;".

In paragraph (f) of sub-article (1) of article 15 of the principal

Act the words "under its regulatory regime." shall be substituted by the

words "under its regulatory regime:" and immediately thereafter there

shall be added the following new proviso

"Provided that the Office for Competition may reject

complaints on the grounds that it does not consider such

complaints to be an enforcement priority.".

Sub-article (3) of article 29 of the principal Act shall be

substituted by the following

"(3) In the case of a decision adopted by the Director

General (Competition) under article 17 of the Competition

Act, or in the case of any information or material

published in terms of article 19 of the said Competition

Act, or in the case of objections or a decision under the

Control of Concentrations Regulations, or in any other

case where the Director General considers it necessary, the

persons, undertakings and associations of undertakings

concerned may be required to identify any part of any

decision, objections, publications or documents which in

their view, contains business secrets or other confidential

information.".

In article 58 of the principal Act the words "from time to time Amendment of

require." shall be substituted by the words "from time to time require:" article

and immediately thereafter there shall be added the following new

"Provided that with reference to such report, the

sections relating to the Office for Competition shall include

information about the appointments and dismissals of the

Director General and the Directors, the amount of resources that

were allocated in the relevant year, and any changes in that

amount compared to previous years. Such report shall be made

available to the public.".

Immediately after sub-article (7) of article 70 of the principal Amendment of

Act there shall be added the following new sub-article (8)

"(8) The provisions of the Competition Act as

amended by virtue of the Competition Act and the Malta

Competition and Consumer Affairs Authority

(Amendment) Act, 2021 shall not apply to investigations

instituted by the Director General (Competition) and to

any judicial proceedings filed by the Director General

(Competition) in accordance with the Competition Act

before the entry into force of the Competition Act and the

Malta Competition and Consumer Affairs Authority

(Amendment) Act, 2021.

Passed by the House of Representatives at Sitting No. 489 of the

14th July, 2021.

CLAUDETTE BUTTIGIEG

Deputy Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€2.88