CONSUMER AFFAIRS ACT

CONSUMER AFFAIRS

CHAPTER 378

CONSUMER AFFAIRS ACT

To provide for the powers of the Director General (Consumer Affairs), for the establishment

and functions of a Consumer Affairs Council and for the establishment and jurisdiction of the

Consumer Claims Tribunal and for other matters ancillary or consequent thereto.

23rd January, 1996

ACT XXVIII of 1994 as amended by Acts V of 1995, XIX of 1996, XXVI of 2000, VI of 2001

and XV of 2006; Legal Notice 425 of 2007; Acts II of 2008, XIV of 2009, and VI and IX of

2011; Legal Notice 426 of 2012; and Acts VI of 2014, XXX of 2015 and XXX of 2016XVI of

2019, XXI of 2020, XLIV of 2021 and I and XIII of 2022 and XVII and XXIV of 2023 and Legal

Notice 212 of 2023.

The short title of this Act is the Consumer Affairs Act.

Added by

II. 2008.55.

(Article 51B(4))

Amended by

VI. 2014.10;

XVI.2019.27;

XIII.2022.10.

Commercial Practices which are ipso jure unfair

Misleading commercial practices

1. Claiming to be a signatory to a code of conduct when the trader is not.

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

the necessary authorisation.

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

body which it does not have.

4. Claiming that a trader, including his commercial practices, or a product has

been approved, endorsed or authorised by a public or private body when he has not,

or making such a claim without complying with the terms of the approval,

endorsement or authorisation.

5. Making an invitation to purchase products at a specified price without

disclosing the existence of any reasonable grounds the trader may have for believing

that he will not be able to offer for supply or to procure another trader to supply,

those products or equivalent products at that price for a period that is, and in

quantities that are, reasonable having regard to the product, the scale of advertising

of the product and the price offered (bait advertising).

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

(a) refusing to show the advertised item to consumers; or

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

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

a different product (bait and switch).

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

or that it will only be available on particular terms for a very limited time, in order to

elicit an immediate decision and deprive consumers of sufficient opportunity or time

to make an informed choice.

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

trader has communicated prior to a transaction in a language which is not an official

language of the Member State where the trader is located and then making such

service available only in another language without clearly disclosing this to the

consumer before the consumer is committed to the transaction.

9. Stating or otherwise creating the impression that a product can legally be

sold when it cannot.

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

trader’s offer.

11. Without prejudice to the provisions of the Broadcasting Act (Cap. 350) and

any regulations made thereunder, using editorial content in the media to promote a

product where a trader has paid for the promotion without making that clear in the

content or by images or sounds clearly identifiable by the consumer (advertorial).

11a.

Providing search results in response to a consumer’s online search query

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without clearly disclosing any paid advertisement or payment specifically for achieving

higher ranking of products within the search results.

12. Making a materially inaccurate claim concerning the nature and extent of the

risk to the personal safety or security of the consumer or his family if the consumer

does not purchase the product.

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

in such a manner as deliberately to mislead the consumer into believing that the

product is made by that same manufacturer when it is not.

14. Establishing, operating or promoting a pyramid promotional scheme where a

consumer gives consideration for the opportunity to receive compensation that is

derived primarily from the introduction of other consumers into the scheme rather

than from the sale or consumption of products.

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

is not.

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

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

malformations.

18. Passing on materially inaccurate information on market conditions or on the

possibility of finding the product, with the intention of inducing the consumer to

acquire the product at conditions less favourable than normal market conditions.

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

without awarding the prizes described or a reasonable equivalent.

20. Describing a product as "gratis", "free", "without charge" or similar if the

consumer has to pay anything other than the unavoidable cost of responding to the

commercial practice and collecting or paying for delivery of the item.

21. Including in marketing material an invoice or similar document seeking

payment which gives the consumer the impression that he has already ordered the

marketed product when he has not.

22. Falsely claiming or creating the impression that the trader is not acting for

purposes relating to his trade, business, craft or profession, or falsely representing

oneself as a consumer.

23. Creating the false impression that after-sales service in relation to a product

is available in a Member State other than the one in which the product is sold.

23a. Reselling events tickets to consumers if the trader acquired them by using

automated means to circumvent any limit imposed on the number of tickets that a

person can buy or any other rules applicable to the purchase of tickets.

23b. Stating that reviews of a product are submitted by consumers who have

actually used or purchased the product without taking reasonable and proportionate

steps to check that they originate from such consumers.

23c. Submitting or commissioning another legal or natural person to submit false

consumer reviews or endorsements, or misrepresenting consumer reviews or social

endorsements, in order to promote products.

Aggressive commercial practices

24. Creating the impression that the consumer cannot leave the premises until a

contract is formed.

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

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request to leave or not to return except in circumstances and to the extent justified,

under national law, to enforce a contractual obligation.

26. Making persistent and unwanted solicitations by telephone, fax, e-mail or

other remote media except in circumstances and to the extent justified under national

law to enforce a contractual obligation. This is without prejudice to the Data

Protection Act (Cap. 586) and the Processing of Personal Data (Electronic

Communications Sector) Regulations (S.L. 586.01).

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

pr odu c e d oc um e n ts w hich c o uld n ot rea sonably be considered relevan t i n

determining whether the claim was valid, or failing systematically to respond to

pertinent correspondence, in order to dissuade a consumer from exercising his

contractual rights.

28. Including in an advertisement a direct exhortation to children to buy

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

products for them. This provision is without prejudice to rule 6 of the Broadcasting

Code for the Protection of Minors (S.L. 350.05).

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

of, products supplied by the trader, but not solicited by the consumer (inertia

selling).

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

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

31. Creating the false impression that the consumer has already won, will win,

or will on doing a particular act win, a prize or other equivalent benefit, when in fact

either

-

there is no prize or other equivalent benefit, or

-

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

benefit is subject to the consumer paying money or incurring a cost.

In this Act, unless the context otherwise requires -

"ADR" means alternative dispute resolution;

"advertisement" means any form of representation, including a

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

or profession in order to promote the supply or transfer of goods or

s e r v i c e s , i m m o v a b l e p r o p e r t y, r i g h t s o r o b l i g a t i o n s a n d

"advertising" shall be construed accordingly;

"the Authority" means the Malta Competition and Consumer

A ff a i r s A u t h o r i t y a s e s t a b l i s h e d b y a r t i c l e 3 o f t h e M a l t a

Competition and Consumer Affairs Authority Act;

"the Board" means the Board of Governors as established by

article 8 of the Malta Competition and Consumer Affairs Authority

Act;

"Civil Court" means the Civil Court (Commercial Section)

established by article 3 of the Civil Courts (Establishment of

Sections) Order;

"consumer" means -

(i)

any individual who in transactions and other

matters covered by this Act or any regulations

made thereunder, is acting for purposes which

are not related to his trade, business, craft or

profession; and

(ii) any other individual not being the immediate

purchaser or beneficiary, and whether or not a

member of the consumer’s household, who

having been expressly or tacitly authorised or

permitted by the consumer, may have consumed,

used or benefited from any goods or services

provided to the consumer by a trader acting in

the course of a trade, business, craft or

profession, including goods or services provided

as part of gift schemes and similar or analogous

inducements; and

(iii) any other class or category of persons whether

natural or legal as may, from time to time, be

designated as "consumers" for all or for any of

the purposes of this Act by regulations made by

the Minister after consulting the Council

Provided that for the purposes of Title I of Part VIII of this

Act, the definition of "consumer" shall only consist of paragraph (i)

above;

"consumer association" means a voluntary body of persons

whose principal objective is the promotion of consumer protection

or education;

"Consumer Protection Co-operation Regulation" means

Regulation (EU) 2017/2394 of the European Parliament and of the

Council of 12 December 2017 on cooperation between national

authorities responsible for the enforcement of consumer protection

laws and repealing Regulation (EC) No. 2006/2004

Provided that for the purposes of the implementation of the

Consumer Protection Co-operation Regulation, the definitions

contained therein shall apply, without prejudice to the definitions

contained in this Article;

"Council" means the Consumer Affairs Council established

under Part II of this Act;

"the Director General" means the Director General (Consumer

Affairs) as appointed by article 16 of the Malta Competition and

Consumer Affairs Authority Act;

"goods" include any movable property, whether tangible or

intangible, that may form the object of trade, including animals and

fish of whatever species whether living or dead;

"Malta Financial Services Authority" means the Authority

established under the Malta Financial Services Authority Act;

"Member State" means a State which is a contracting party to the

agreement on the European Economic Area signed at Oporto on the

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

the 17th March, 1993 and as amended by any subsequent acts;

"Minister" means the Minister responsible for consumer affairs;

"Mortgage Credit Directive" means Directive 2014/17/EU of the

European Parliament and of the Council of 4 February 2014 on

credit agreements for consumers relating to residential immovable

property and amending Directives 2008/48/EC and 2013/36/EU and

Regulation (EU) No. 1093/2010, as may be amended from time to

time, and includes any implementing measures, implementing

technical standards, regulatory technical standards, guidelines and

similar measures that have been or may be issued thereunder;

" t h e O f f i c e " m e a n s t h e O f f i c e f o r C o n s u m e r A ff a i r s a s

established under article 16(1) of the Malta Competition and

Consumer Affairs Authority Act;

"ordinary court" for the purposes of Part III of this Act includes

the Small Claims Tribunal established under the Small Claims

Tribunal Act;

"permanent resident" means a person in whose favour a permit of

residence has been issued in accordance with article 7 of the

Immigration Act;

"premises" means any place from where any trade or business is

carried out including any stall or vehicle;

"public authority" shall have the same meaning assigned to it in

article 2 of the Malta Competition and Consumer Affairs Authority

Act;

"qualified entity" means -

(a) a registered consumer association; or

(b) a voluntary organisation in Malta as the Minister may,

after consulting the Council, designate by notice in the

Gazette;

"registered consumer association" means a consumer association

registered in accordance with Part IV of this Act;

"sales contract" means any contract under which the trader

transfers or undertakes to transfer the ownership of goods to the

consumer and the consumer pays or undertakes to pay the price

thereof, including any contract having as its object both goods and

services;

"services" includes the provision, in the course of or in

furtherance of a trade, business, craft or profession, of any kind of

educational, professional or instruction courses, facilities for

entertainment, amusement, recreation, sports and cultural

activities, beauty, health and nutrition-related programmes, hospital

and nursing services, accommodation and analogous facilities, of

any description, and the performance, in furtherance of a trade,

business, craft or profession of any other type of work or action in

return for a fee or reward;

"services contract" means any contract other than a sales contract

under which the trader supplies or undertakes to supply a service to

the consumer and the consumer pays or undertakes to pay the price

thereof;

"trader" means -

(i)

any person, including any body corporate or

incorporate who in relation to any transactions

or other matters covered by this Act or

regulations made thereunder is acting for

purposes relating to his trade, business, craft or

profession;

(ii) any public body, whether corporate or

unincorporate, which provides goods or services

to consumers for a fee;

(iii) any person to whom article 4 of the Commercial

Code applies

Provided that the Minister after consulting the Council may

from time to time by Order published in the Gazette, designate as a

"trader" for all or any purposes of this Act, any category or class of

persons and any body corporate or incorporate whether established

by law or not. Any Order made by the Minister as aforesaid may by

like Order be amended, substituted or revoked;

"terms" includes any condition or requirements in any contract,

notice, guarantee or other statement, whether these are given

verbally or in writing;

"Tribunal" means a Consumer Claims Tribunal set up under Part

III of this Act.

PART II

Director General (Consumer Affairs) and

the Consumer Affairs Council

Added by

II. 2008.56.

(Article 106A(3))

Amended by

VI. 2011.75, 119;

VI. 2014.11.

Penalties

Substituted by

XVI.2019.28.

Amended by

XLIV.2021.18.

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

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 person concerned 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;

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where the person concerned 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 forty-seven thousand euro (€47,000)

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.

The Director General shall be responsible for the

administration of this Act and investigations according to this Act, and

f o r t h e se p u r p o s e s t h e D i r e c to r G e n e r a l s h a l l e x e r c i se t h e

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.

Added by

XXX. 2015.6.

(Article 43C)

In accordance with the provisions of article 43C, the following public entity is

being designated to perform the functions of a residual ADR entity

The Complaints and Conciliation Directorate established under the Fourth

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Schedule of the Malta Competition and Consumer Affairs Act (Cap. 510).

(1) There shall be established a Council to be designated

"the Consumer Affairs Council" having the functions and duties set

out in this Act. The Council shall consist of a chairman and five

ot h er m em b ers, o ne o f wh o m s ha ll b e ap po i nt e d as d ep u ty

chairman.

(2)

The Minister shall appoint

(a) the chairman and four other members from among

persons who, because of their experience,

qualifications or activities, the Minister considers as

being able to contribute towards the promotion of

consumer interests; and

(b) one member who, because of his experience,

qualifications or activities, the Minister considers as

being able to state the point of view of traders.

(3) One of the members, other than the chairman, mentioned in

sub-article (2)(a) shall be appointed after consultation with those

consumer associations, if any, registered under Part IV of this Act

and the member mentioned in paragraph (b) of the same sub-article

shall be appointed after consultation with those constituted bodies

which the Minister considers to represent the interests of traders.

(4) The appointed members shall hold office for such term, not

being more than three years, as may be specified in their letter of

appointment and shall be eligible for re-appointment.

(5) Where the seat of any appointed member is vacated before

the expiration of the term fixed in his letter of appointment, the

Minister shall appoint another person to replace such member for

such term, not being a term of more than three years, as the

Minister may determine in his letter of appointment.

(6) The deputy chairman shall act instead of the chairman

whenever the chairman is lawfully impeded or is absent from a

meeting of the Council.

(7) A person shall not be eligible to be appointed a member of

the Council, or to continue to be a member of the Council if such

person -

(a) is a member of the House of Representatives; or

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(b) is legally incapacitated or interdicted; or

(c) has been declared bankrupt or has made a composition

with his creditors; or

(d) has been convicted of, or found guilty of -

(i)

any crime affecting public trust; or

(ii)

theft; or

(iii)

fraud; or

(iv)

knowingly receiving property obtained by theft

or fraud; or

(v)

any offence or infringement contemplated in this

Act, regulations made thereunder, the Customs

Ordinance and the Metrology Act, or any law

repealed by any of the said Acts or Ordinances

or any law replacing the same.

(8) Notwithstanding any other provision of this article the

Minister may at any time terminate the appointment of an

appointed member, if in his opinion such appointed member is unfit

t o c o n t i n u e i n o ff i c e o r h a s b e c o m e i n c a p a b l e o f p r o p e r l y

performing his functions.

(9) The Minister shall appoint an officer serving in the public

service to act as non-voting secretary of the Council.

It shall be the function of the Council

(a) to advise the Minister on measures for the promotion

and protection of consumer interests;

(b) at the request of the Minister, to undertake or

commission any study or research which may be

necessary to promote consumer protection;

(c) to monitor the working and enforcement of laws that

directly or indirectly affect the consumer in Malta;

(d) to act as a forum for bringing together those public

authorities which in the exercise of their functions deal

with situations of conflict between traders' and

consumers’ interests or have the responsibility to

safeguard the interests of consumers, with a view to

establishing a closer relationship of co-operation

among the said public authorities in furthering the

welfare of consumers;

(e) to monitor the development of consumer associations

in Malta, and to draw up and review rules of practice

for registered consumer associations for submission to

the Minister;

(f)

to examine and determine whether a consumer

association has the requirements to be a registered

consumer association in accordance with this Act; and

(g) to perform any other function or duty that may be

assigned to it by the Minister or that may be assigned

to the Council under this or any other law.

(1) Subject to the provisions of this Act, the Council shall

regulate its own procedure.

(2) The Council shall meet as often as necessary but in no case

less frequently than once every calendar month. Meetings shall be

convened by the chairman or in his absence the deputy chairman,

either on his own initiative, or at the request of three other

members of the Council.

(3) A quorum at a meeting of the Council shall be constituted

by the chairman, or in his absence the deputy chairman, and three

other members.

(4) Decisions of the Council shall be taken by majority of votes

of the members present and voting, the chairman shall have an

original vote and in the event of equality of votes a second or

casting vote.

(5) The Council may act notwithstanding any vacancy among

its members.

(6) Any member of the Council who in any matter before the

Council has any interest in conflict with his office as member of the

Council shall disclose the nature of his interest and withdraw from

any meeting of the Council during which the matter is discussed.

Any such disclosure shall be recorded in the minutes.

(1) The Minister may, after consulting the Council, make

regulations about any matter relating to consumer affairs in order to

give fuller effect to the provisions of this Act, and in particular, but

without prejudice to the generality of the aforesaid, may prescribe

regulations -

(a) in relation to any aspect concerning the provision of

any service, or the sale or hire of any goods offered or

supplied to consumers; establishing minimum service

standards and price indication requirements with

regard to any such goods or services, and laying down

any other requirements in order to improve price

transparency and consumer information, and to

promote easier comparison between different goods or

services offered to consumers;

(b) establishing rules of practice for registered consumer

associations;

(c) regulating advertising and similar practices in order to

ensure that advertising and similar practices are fair

and that they do not take undue advantage of

consumers;

(d) regulating trading stamps schemes, gift schemes,

special offers, sale promotional activities and other

similar schemes, arrangements and activities, by

whatever name described or designated, connected

with, ancillary or related to the provision of any

service or the sale or hire of any goods to consumers

and other consumer transactions, including schemes

involving the use and promotion of coupons, units,

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tokens, vouchers, points, stamps or any other form of

reward, gift, membership, incentive, inducement or

other benefit, whether in cash or in kind, and whether

exchangeable, redeemable or otherwise, issued to or

distributed to consumers in connection with, whether

directly or indirectly, the purchase or hire of goods or

services or other consumer transactions;

(e) to regulate distance selling arrangements and the

conclusion of agreements where the consumer and the

trader are at a distance from each other, and for this

purpose to set out the procedure for concluding

distance selling agreements, to provide for the

inclusion or exclusion of particular terms and

conditions, to establish a cooling-off period for

consumers, to lay down thresholds and exemptions,

and to establish minimum consumer rights, and to

introduce measures to make offers for such agreements

more transparent and informative, and to regulate any

other aspect of distance selling;

(f)

to regulate consumer credit offers and the conclusion

of agreements for the provision of credit terms and

facilities by traders or other persons to consumers in

the course of a trade, business, craft or profession in

relation, directly or indirectly, to the sale or offer of

goods, immovable property or services, to lay down

the form and procedure for making consumer credit

agreements, to stipulate and regulate the terms and

conditions that may or may not be adopted in such

agreements, to lay down thresholds and exemptions,

the method of calculating the cost of credit,

advertising, and other measures considered necessary

or appropriate to establish minimum rights for debtors

and to make credit offers more transparent and

informative, and to regulate any other aspect of

consumer credit arrangements; and

(g) to provide for any matters that may be required for the

purpose of complying with any international

obligations of Malta related to consumer affairs, in

particular for the purpose of complying with any

requirements however so described of the European

Union.

(1A) The Minister, acting on the advice of the Malta Financial

Services Authority and the Council, may make regulations for the

following purposes

(a) to transpose, implement and, or give effect to the

requirements of the Mortgage Credit Directive, and

may for such purpose introduce provisions that are

more stringent than the said Directive in order to

protect consumers, provided that such provisions are

made in accordance with European Union law, and

provided further that such provisions shall not diverge

from those laid down in Article 14(2) and Annex II

Part A of the said Directive, with regard to standard

pre-contractual information through a European

Standardised Information Sheet (ESIS), and Article

17(1) to (5), (7) and (8) and Annex I of the Directive

with regard to a common, consistent European Union

standard for the calculation of the annual percentage

rate of charge (APRC);

(b) to provide for powers and functions of the Malta

Financial Services Authority in relation to any person

or matter regulated by the Mortgage Credit Directive;

(c) to enable the Malta Financial Services Authority to

impose any application, annual and other fees payable

in respect of an admission of a credit intermediary, and

to levy charges in respect of any request or other

matter that may be submitted to the Malta Financial

Services Authority, including the fees and charges in

respect of any permission, exemption or other benefit,

as well as fees and charges in respect of the regulatory,

supervisory or investigative functions of the Malta

Financial Services Authority;

(d) to enable the Malta Financial Services Authority to

make, amend or revoke Credit Intermediaries Rules for

the better carrying out of, and to better implement, the

provisions of the regulations transposing and, or

implementing the Mortgage Credit Directive, and for

the purpose of implementing any guidelines,

recommendations and decisions issued by the

European Banking Authority in terms of Regulation

(EU) No. 1093/2010 of the European Parliament and

of the Council of 24 November 2010 establishing a

European Supervisory Authority (European Banking

Authority);

(e) generally to provide for any other matter ancillary or

connected with the above.

(2) Regulations made under this article may also provide for

the assignment of power and authority to the Director General to

control, monitor, keep under review or prohibit any scheme,

agreement, activity or arrangement, including the power to

authorise, require a licence, suspend, restrict and to order the

amendment, prohibition, suspension, withdrawal or cancellation of

any particular scheme, agreement, activity or arrangement, or of a

particular class or category thereof, and to impose any conditions

and requirements in connection therewith

Provided that this is without prejudice to the competences

assigned to the Civil Court by this Act.

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

person who contravenes any provision of the regulations, shall

either -

(a) be guilty of an offence punishable on conviction by a

fine (multa) not exceeding forty-seven thousand euro

(€47,000), or

(b) be guilty of an infringement punishable by an penalty

not exceeding forty-seven thousand euro (€47,000),

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

offences and infringements.

The Director General may from time to time, after

consultation with the Consumer Affairs Council, issue guidelines to

provide general guidance on the interpretation of the provisions of

this Act.

(1) The Director General may make or issue a public

statement identifying and giving warnings or information about any

of the following

(a) goods that are unsatisfactory or dangerous and persons

who supply those goods;

(b) services supplied in an unsatisfactory manner and

persons who supply those services;

(c) trading practices detrimental to the interests of

consumers and persons who engage in such practices;

and

(d) any other matter that adversely affects or may

adversely affect the interests of consumers in

connection with the acquisition by them of goods or

services from traders.

(2) When making a statement as is referred to in sub-article (1),

the Director General shall adhere to the principles of fairness and

objectivity.

(3) The Government, the Director General and any public

officer acting on the instructions or authority of the Director

General, shall be exempt from any liability for acts done in good

faith in pursuance of this article by the Director General or any

public officer as aforesaid. Such exemption shall extend to all

persons publishing, printing, recording, broadcasting or

communicating such information by any means whatsoever.

(1) Without prejudice to any arrangements made in terms

of article 9A, a trader shall not, without the written consent of the

Director General, make or cause to be made any representation in

any visual or aural form, either specifically or by implication, to

the effect that

(a) any goods or services supplied by any trader have the

approval of the Authority, Office or Council; or

(b) any activity carried out by any trader has the approval,

or is conducted with the co-operation or assistance of

the Authority, Office or Council.

(2) Where a trader’s name, tradename, trademark, or the

designation of any goods or services provided or supplied by a

trader, appears in relation to a representation referred to in sub-

article (1), that trader shall be deemed for the purposes of this

article to have caused the representation to be made unless he

proves that the representation was made without his knowledge or

connivance.

(3) A trader convicted under this article shall be liable to a fine

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

not more than two thousand three hundred and fifty euro (€2,350).

(1) In promoting good trading practices, the Director

General shall, with the approval of the Board, make arrangements

for approving codes of conduct and may, in accordance with these

arrangements, give his approval to or withdraw his approval from

any code of conduct.

(2) Any such arrangements must specify the criteria to be

applied by the Director General in determining whether to give

approval to or withdraw approval from a code of conduct.

(3)

Any such arrangements may in particular

(a) specify the type of code of conduct that may be the

subject of an application to the Director General for

approval indicating the requisite features of the code

of conduct, including the persons who are, or are to be

subject to the code of conduct, the manner in which it

is, or is to be operated and the persons responsible for

its operation; and

(b) provide for the use in accordance with the

arrangements of an official symbol intended to signify

that a code of conduct is approved by the Director

General.

(4) The Director General shall publish any arrangements under

sub-article (1) in such manner as he considers appropriate.

(5) For the purposes of this article "code of conduct" shall have

the same meaning assigned to it in article 51A.

(1) Where an offence or an infringement under this Act or

any regulation made thereunder is committed by an employee or

other person acting on behalf of a trader, the trader shall also be

guilty of the offence or the infringement committed by the

employee or other person acting on his behalf unless he can prove

that he has exercised all reasonable diligence to prevent the

commission of the offence or the infringement by the employee or

other person acting on behalf of the trader.

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

this Act or any regulation made thereunder is committed by a body

corporate and is proved to have been committed with the consent or

involvement of or to be attributable to any gross negligence on the

part of a person being a director, manager, secretary or other officer

however so described of the body corporate or a person who was

purporting to act in any such capacity, that person, as well as the

body corporate, shall be liable to be proceeded against and

p u n i s h e d a s i f h e w a s r e s p o n s i b l e f o r t h e s a i d o ff e n c e o r

infringement.

(1) A person who is or was at any time a member of the

Council shall not, save in the course of his duty or functions under

this Act or any other law, or where it is competent to him to do so

by reason of a provision of this Act or any other law, directly or

indirectly communicate any information that came to his

knowledge as a consequence of his holding that appointment or

position.

(2) Without prejudice to any other liability under any other law,

any person who acts in breach of this article shall be liable on

conviction to a fine (multa) of not less than one hundred and twenty

euro (€120) and not more than two thousand and three hundred fifty

euro (€2,350), or to a term of imprisonment not exceeding six

months, or to both such fine and imprisonment.

(1)

Saving the provisions of article 17(1)(f) of the Malta

Competition and Consumer Affairs Authority Act, 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 made by any person 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 provisions of article 105 shall also

apply accordingly.

(5)

Without prejudice to articles 12A and 13, 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.

(1) At any stage of an investigation initiated according to

article 12, or any stage of judicial proceedings instituted according

to article 12(5), the Director General may seek to obtain or to

accept commitments from the person concerned to cease the

alleged infringement, including also, on the initiative of the person

concerned, additional remedial commitments for the benefit of

consumers that have been affected by the alleged infringement

Provided that in such instances the Director General

together with the person concerned shall have the right to demand

that the investigation or the judicial proceedings, as the case may

be, are terminated by means of the commitments procedure which

includes the imposition of a penalty by the Civil Court on the

person concerned, as provided for in the following provisions of

this article.

(2) The termination of the investigation or of the judicial

proceedings, as the case may be, by means of the commitments

procedure shall be granted by virtue of a judgement delivered by

the Civil Court upon the demand made jointly by the Director

General and the person concerned, where the Director General and

the person concerned agree that the investigation or the judicial

proceedings, as the case may be, are terminated by means of the

commitments procedure, which includes the imposition of a penalty

by the Civil Court according to article 106A

Provided that in those instances where the investigation

concerns more than one person, not all persons concerned who are

under investigation or who are subject to judicial proceedings

instituted according to article 12(5) must agree to submit to the

commitments procedure. In such instances the investigation or the

judicial proceedings shall continue with regard to that person or

persons concerned who do not agree to submit to the commitments

procedure.

(3) The joint demand mentioned in sub-article (2) shall be

made by means of a joint application filed in the Civil Court

Provided that the Civil Court must be satisfied that all the

requirements of sub-article (7) are reflected in the joint application

Provided further that after the Civil Court considers that

the requirements of sub-article (7) have all been satisfied, the Civil

Court shall appoint a sitting to confirm that the person concerned is

not contesting the contents of the commitments submissions and

that all the parties concerned express their unconditional

willingness to terminate the investigation or the judicial

proceedings by means of the commitments procedure, after which

sitting, the Civil Court shall pronounce judgement on the basis of

the joint application

Provided further that the joint application shall, solely for

information purposes, also be notified to any qualified entity that

had alleged the infringement according to article 12(1).

(4) In the course of an investigation the Director General may

prior to instituting judicial proceedings according to article 12(5),

if he deems it appropriate for the expeditious and efficient

conclusion of the investigation, invite the person concerned to

indicate in writing, within the time limit set by the Director

General, whether the person concerned is prepared to engage in

commitments discussions with a view to possibly introducing

commitments 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 the person concerned may also request to engage in

commitments discussions with the Director General

Provided further that the decision regarding the initiation

of the commitments discussions falls within the exclusive

competence of the Director General.

(5) Should the Director General ascertain that sufficient

progress in the commitments discussions has taken place, the

Director General shall invite the person concerned to introduce

commitments submissions before the Director General within a

time limit as set by the Director General with a view to conclude

the commitments procedure

Provided that before the Director General sets a time limit

to introduce commitments submissions, the person concerned may

be informed of the main elements of the suspected infringement,

consisting of

(a)

the evidence found;

(b)

the legal assessment of the facts; and

(c)

the specific amount of the penalty to be requested

by the Director General

Provided further that before the Director General sets a

time limit for the person concerned to introduce commitments

submissions, the person concerned may have limited access to the

file of the investigation concerning the case which is granted only

to the extent that the Director General deems reasonable in view of

the objectives of the commitments 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 if the person concerned fails to

submit the commitments submissions within the time limit set by

the Director General, it shall be considered that the person

concerned has withdrawn from the commitments procedure.

(6) The documents and the information exchanged between the

Director General and the person concerned during the commitments

procedure are confidential

Provided that the information given according to sub-

article (5) shall be confidential vis-à-vis third parties, save where

the Director General has given a prior explicit authorisation for

disclosure

Provided further that the exchanged documents will only

be accessible to other persons concerned who are under

investigation or who have been served with a sworn application

according to article 12C, if the lack of access to these documents

would hinder the rights of defence of these other persons

concerned.

(7) The commitments submissions which are to be included in

the joint application shall contain a voluntary statement by the

person concerned containing the following information

(a)

a statement by the person concerned, clearly and

unequivocally admitting his infringement of those provisions of

the Act and of the regulations made thereunder mentioned in

the investigation or in the judicial proceedings;

(b)

a factual and brief description of the conduct of

the person concerned, the objective of the conduct and the way

in which it was carried out, its duration and the extent in which

the person concerned was involved;

(c)

a statement of the person concerned declaring that

he accepts the amount of the penalty that is being requested by

the Director General in the joint application, as reduced

according to sub-article (9);

(d)

a statement of the person concerned to the effect

that he was sufficiently informed by the Director General

regarding the main elements of the suspected infringement

contained in sub-article (5) and a declaration of the person

concerned that he was given sufficient opportunity to be heard

and to make his views known to the Director General;

(e)

a statement of the person concerned that he will

waive his right to obtain further or full access to the file of the

investigation concerning his case;

(f)

a statement of the person concerned containing

his waiver of his right to appeal and, or to challenge in any way

the commitments procedure and, or the judgement of the Civil

Court including the penalty; as well as his waiver of any action

or claim arising from the same commitments procedure and, or

related to the judgment of the Civil Court and, or to the penalty;

and

(g)

a statement of the person concerned that he agrees

with the contents of the commitments submissions and that he

agrees that a joint application is filed in Civil Court with the

Director General to terminate the investigation or the judicial

proceedings, as the case may be, by means of commitments,

and to request the Civil Court to deliver a judgement according

to the commitments submissions

Provided that together with the commitments submissions

the joint application shall also include a statement by the Director

General

(a)

agreeing with the commitments submissions of

the person concerned;

(b)

specifying the amount of the penalty he is

requesting to be imposed on the person concerned as reduced

according to sub-article (9); and

(c)

requesting the Civil Court to deliver a judgement

to terminate the investigation or the judicial proceedings, as the

case may be, by means of commitments based on the

commitments submissions of the person concerned contained in

the joint application and to impose the amount of the penalty as

requested by the Director General

Provided further that the commitments submissions may

also include additional remedial commitments for the benefit of

consumers that have been affected by the alleged infringement and

adequate remedies to the consumers that have been affected by that

infringement intended to contribute to removal of the adverse

impact on affected consumers. Those remedies may include, inter

alia, repair, replacement, price reductions, the termination of

contract or the reimbursement of the price paid for the goods or

services, as appropriate, to mitigate the negative consequences of

the infringement on the affected consumer

Provided further that this shall be without prejudice to a

consumer’s right to seek redress through the appropriate means

where the consumer would not have benefited from the remedies

that the person concerned may have provided.

(8) Commitments discussions may also be proposed jointly by

the parties at a later stage, when a sworn application according to

article 12(5) would have already been filed by the Director General

before the Civil Court

Provided that the Civil Court may adjourn two sittings so

that within such time the parties would be able to consider the

commitments procedure and file a joint application as referred to in

sub-article (3)

Provided further that if the Director General and, or the

p erson con cerned fail to fil e a j oin t ap pli catio n w ith in the

adjourned two sittings allocated by the Civil Court, proceedings

against the person concerned shall continue according to the stage

where the proceedings before the Civil Court had arrived.

(9) If the person concerned agrees to terminate the

investigation or the judicial proceedings by means of commitments,

by filing together with the Director General the joint application,

the Director General shall reward the person concerned for the

commitments, by reducing between ten to thirty-five percent (10%

- 35%) of the amount of the penalty requested to be imposed by the

Civil Court on the person concerned

Provided that the penalty, for each infringement, shall not

be less than four thousand six hundred and fifty euro (€4,650).

(10) The Director General may decide at his own discretion at

any time during the commitments discussions to discontinue the

commitments 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 commitment submissions do not contain all

the requirements mentioned in sub-article (7); or

(c)

the person concerned does not have a sincere

intention of submitting to commitments or does not cooperate

or has breached the confidentiality obligation by revealing to

any third party the content of the commitments 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 commitments discussions for any reason as

provided for in this sub-article or in the case where the person

concerned or the Director General, as the case may be, withdraw or

discontinue the commitments procedure as provided for in sub-

articles (5) and (8), the case shall proceed according to the stage

where the investigation or proceedings have arrived.

(11) If the commitments procedure is discontinued either by the

Director General or by the person concerned during the

investigation or during the judicial proceedings, any information

and any document provided by the person concerned during the

commitments procedure cannot be used as evidence to establish an

infringement of those provisions of the Act and of the regulations

made thereunder mentioned in the investigation or in the judicial

proceedings against the person 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 any consumers’ judicial action, with regard to

consumer claims or actions for damages, including redress measures

according to the Representative Actions (Consumers) Act

2023. Provided further that documents and, or information which

were already in the possession of the Director General prior to being

presented by the person concerned and any information which can be

requested by the Director General according to the Act, can be used as

evidence by the Director General and before any court of law to

establish an infringement of the Act and the regulations made

thereunder, against the person concerned or against any other persons

concerned or against any other party to the investigation.

(1) Without prejudice to article 12, a qualified entity may

also make a complaint to the Director General that with respect to

goods and services -

(a) the structure of the market concerned or any aspect of

that structure;

(b) any conduct, whether or not in the market concerned,

of one or more than one person who supplies or

acquires goods or services in the market concerned; or

(c) any conduct relating to the market concerned of

customers of any person who supplies or acquires

goods or services,

is or appears to be significantly harming the interests of consumers.

(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.

(3) The response must state the reasons of the Director General

for his proposals.

(4)

The Director General -

(a) shall issue guidance as to the presentation by the

qualified entity of a reasoned case for the complaint;

and

(b) may issue such other guidance as appears appropriate

for the purposes of this article.

PART IIA

Judicial proceedings before the Civil Court

and the Court of Appeal

(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

person concerned according to article 106A for

each infringement

Provided that the Director General

may also indicate a specific amount of the penalty

either in his sworn application or by a note

presented in Court during the judicial

proceedings; and, or

(ii)

any other remedy as contemplated

in this Act; and, or

(iii) any other relevant order, including

a compliance order or any other order, that may

be necessary according to the circumstances of

the case including, where appropriate, and where

no other effective means are available to bring

about the cessation or the prohibition of an

infringement under this Act and of any other

regulations made thereunder, and in order to

avoid the risk of serious harm to the collective

interests of consumers

-

to remove content or to

restrict access to an online interface or to

order the explicit display of a warning to

consumers when they access an online

interface;

-

to order a hosting service

provider to remove, disable or restrict

access to an online interface; or

-

where appropriate, to order

domain registries or registrars to delete a

fully qualified domain name and to allow

the competent authority concerned to

register it

including by ordering a third party or other

public authority to implement such measures

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)

Repealed by Act XVII.2023.29.

(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.

(4)

During the judicial proceedings the person concerned in

receipt of a sworn application shall be entitled, upon a request to this

effect in his sworn reply, to have access to the file of the investigation

concerning his 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 Consumer

Protection Authorities of other Member States, and without prejudice

to the provisions contained in Part VIII of the Malta Competition and

Consumer Affairs Authority Act. The Director General shall provide

such access to the file of the investigation at any time prior to the

conclusion of his evidence.

In judicial proceedings, instituted by the 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 person concerned 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

person concerned 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.

(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 during an investigation initiated according

to article 12, or at any stage during the judicial proceedings initiated

according to article 12(5), 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 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 and shall remain in

force for that period of time established by the Civil Court. An appeal

from the interim measures imposed by the Civil Court according to

sub-article (1) may be lodged by the aggrieved party by means of an

application filed before the Court of Appeal within six (6) 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 (6) days from the date of service

of such an application

Provided that an appeal filed in accordance with this sub-

article shall not have the effect of suspending any interim measures

imposed by the Civil Court

Provided further that the Court of Appeal shall decide on the

application filed according to this sub-article in an expedited manner.

(5)

Any person who infringes the decree ordering the interim

measures shall be liable to a penalty according to article 106A.

Where the Civil Court delivers a 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

Provided that the Civil Court shall also have the power

(a)

to remove content or to restrict access to

an online interface or to order the explicit display of a

warning to consumers when they access an online

interface;

(b)

to order a hosting service provider to

remove, disable or restrict access to an online interface;

or

(c)

where appropriate, to order domain

registries or registrars to delete a fully qualified domain

name and to allow the competent authority concerned to

register it,

where no other effective means are available to bring about the

cessation or the prohibition of an infringement under this Act and

of any other Regulations made thereunder, and in order to avoid the

risk of serious harm to the collective interests of consumers

Provided further that the Civil Court may order a third party

or other public authority to implement such measures.

(1) Without prejudice to the provisions of article 106A

and of sub-article (8), whether or not at the request of the Director

General, the Civil Court may, at its discretion, where it deems it

reasonably appropriate or necessary in the public interest, in its

judgement finding the person concerned liable of infringing the

provisions of this Act or of the regulations made thereunder, issue a

compliance order

(a)

on the person concerned, 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 person concerned 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 person concerned 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 person concerned 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)

Repealed by Act XVII.2023.31.

(3)

Repealed by Act XVII.2023.31.

(4)

Repealed by Act XVII.2023.31.

(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 person concerned.

(9)

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 person concerned

(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 person

concerned, 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 person concerned, the

Civil Court shall authorize the Director General to

effect the publication himself, and to recover from the

person concerned any expenses incurred.

(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 in its judgment found the person

concerned 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

judgments 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.

(6)

When publishing judgements and decrees, the Civil Court

shall have regard to the legitimate interest of the person concerned in

the protection of his business secrets or other confidential information.

The Civil 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 Civil Court shall ultimately decide about

which version shall be published

Provided further that the Director General shall also publish

on the website of the Authority the judgement delivered by the Civil

Court.

(7)

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 according to article 12C having regard to the legitimate

interest of the person concerned in the protection of his business

secrets and other confidential information. The publication may

contain the name of the person concerned 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.

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

Provided further that the Court of Appeal shall publish any

judgement having regard to the legitimate interest of the person

concerned in the protection of his business secrets or other confidential

information. The Court of Appeal may give the parties concerned the

opportunity to specify the confidential parts of the judgement which

they want to be excluded from publication

Provided further that the Court of Appeal shall ultimately

decide which version shall be published

Provided further that the Director General shall also publish

on the website of the Authority the judgement delivered by the Court

of Appeal.

PART IIB

Criminal proceedings and related provisions

(1) When investigations in terms of article 12 relate to an

offence under this Act or any regulations made thereunder, criminal

proceedings may only be instituted at the instance of the Director

General.

(2) In any proceedings referred to in sub-article (1), the

Director General, or an official of the Office duly authorised to act

in his stead, may, notwithstanding any provision of any other law,

conduct the prosecution before the Court of Magistrates.

(3) Should the evidence of the Director General or the official

conducting the prosecution be required as part of the case of the

prosecution, he shall be heard before any other witness, unless the

necessity of his giving evidence arises later in the proceedings.

(1) Upon the request even verbal of the aggrieved

consumer or of the prosecuting officer on his behalf, the court shall

where the person concerned is convicted for an offence against a

provision of the Act or against any regulation made under article 7,

make a compensation order whereby person concerned is ordered to

pay to the aggrieved consumer as full or partial compensation -

(a) a sum not in excess of six hundred euro (€600) for any

pecuniary loss, and

(b) a sum of not less than thirty five euro (€35) and not

more than seven hundred and fifty euro (€750) as

moral damages for any pain, distress, anxiety and

inconvenience,

suffered by the aggrieved consumer as a result of the offence or

arising therefrom.

(2) Any compensation ordered under sub-article (1)(a) shall be

reduced from any amount which may be given in a judgment by a

court or tribunal of civil jurisdiction with regard to the same matter.

(3) A request for the making of a compensation order shall not

be made where such damages have been settled by agreement with

the trader or where the aggrieved consumer has instituted a claim

before a court or a tribunal of civil jurisdiction against the person

concerned in respect of the same matter.

(4) A compensation order made under this article shall be

without prejudice to the right of the aggrieved consumer to institute

civil action for the recovery of any sum due to him as damages so

however that the sum covered by the compensation order shall be

reduced from the total sum due by the person concerned as

damages.

(5) A compensation order made under this article shall be

subject to appeal by the person concerned in the same manner as an

appeal from sentence.

(6) When the judgment in which a compensation order is made

has become res judicata, the said compensation order shall be

deemed to be an executive title for the purposes of the Code of

Organization and Civil Procedure and shall be enforceable in the

same manner as if it were a judgment of the Court of Magistrates

(in each case in its inferior civil jurisdiction) of the island where

the court making the compensation order is situate.

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.

Deleted by XVI.2019.16.

Deleted by XVI.2019.16.

PART III

Consumer Claims Tribunal

(1) There shall be two tribunals to be styled "the

Consumer Claims Tribunal (Malta)" and "the Consumer Claims

Tribunal (Gozo)" respectively.

(2) The Consumer Claims Tribunal (Malta) shall, subject to the

pro vision s of su b-article ( 3), h ave ju risdict ion to h ear and

determine consumer claims where the transaction to which the

claim refers has taken place in Malta, and shall hold its sittings in

such place or places in Malta as the Minister may by order in the

Gazette determine.

(3) The Consumer Claims Tribunal (Gozo) shall have

jurisdiction to hear and determine consumer claims where the

transaction to which the claim refers has taken place in the Islands

of Gozo or Comino, and shall hold its sittings in such place in the

Islands of Gozo and Comino as the Minister, in consultation with

the Minister responsible for Gozo Affairs, may by order in the

Gazette determine.

(4) For the purposes of sub-articles (2) and (3) a transaction

shall be deemed to have taken place

(a) in the case of a sale or a service which has been

concluded or provided on the premises of the trader, in

the island where those premises are situate;

(b) in the case of a sale or a service which has been

concluded or provided outside the premises of the

trader

(i) where the sale or the service was contracted by

telephone, fax, correspondence or by any

mechanical or electronic means of comm-

unication, and the trader did not himself

approach the consumer and offer the sale of the

goods or the supply of the service, in the island

where the premises of the trader are situate;

(ii) in all other cases in the island where the goods

were delivered or the service provided; so

however that where the goods were delivered or

the service provided partly in the Island of Malta

and partly in the Island of Gozo or in the Island

of Comino, or has taken place during a voyage

between the Island of Malta and the Island of

Gozo or the Island of Comino, both tribunals

shall have jurisdiction.

(5) Where in accordance with the provisions set out in sub-

article (4), or in accordance with any rules made under article 27, it

cannot be determined which tribunal has jurisdiction, the

provisions of the Code of Organization and Civil Procedure to

determine conflict of jurisdiction between the Court of Magistrates

(Malta) in its civil jurisdiction and the Court of Magistrates (Gozo)

in its inferior civil jurisdiction, shall mutatis mutandis apply.

(1) Each tribunal shall be presided by an arbiter sitting

alone

Provided that more than one arbiter may be appointed to sit

in any of the said tribunals, but only one arbiter shall sit in any one

case.

(2) Arbiters shall be appointed by the Prime Minister. No person

shall be qualified to be appointed arbiter unless such person -

(a) is a citizen of Malta over the age of thirty years; and

(b) holds the warrant and has practised the profession of

advocate in Malta for a period of at least five years.

(3) A person shall be disqualified to be appointed arbiter if

such person -

(a) is a member of the House of Representatives; or

(b) is a member of a Local Council; or

(c) is a trader; or

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

guilty of any of the infringements referred to in article

4(7)(d)(v).

(4) Arbiters shall receive such remuneration as the Prime

Minister may by notice in the Gazette determine, and shall not be

precluded from the exercise of their respective profession.

(5) Arbiters shall be appointed for a term of three years and

shall be eligible to be re-appointed, for a further term or terms of

three years each.

(6) In the exercise of his functions under this Act an arbiter

shall not be subject to the control or direction of any other person

or authority and may not be removed from office except by the

Court of Appeal on an application for that purpose by the Prime

Minister on the grounds of misbehaviour or inability to perform his

functions by reason of infirmity of body or mind.

(7) The remuneration due to arbiters and the expenses in

connection with the administration of the tribunals shall be paid out

of the Consolidated Fund without the necessity of any further

appropriation.

An arbiter shall abstain and may be challenged in the same

circumstances as a judge of the superior courts.

Every person appointed as an arbiter shall not assume the

functions of his office unless and until he has taken before the State

Advocate an oath to examine and decide the cases brought before

him without delay, with impartiality, and equity according to law.

(1) A tribunal shall have jurisdiction to hear and

determine claims made by consumers against traders where the

value of the claim, exclusive of interests and costs, does not exceed

ten thousand euro (€10,000), and where the claim relates to, arises

out of or concerns, whether directly or indirectly -

(a) the purchase or hire of goods by a consumer from a

trader; or

(b) the provision of services by a trader to a consumer.

(2) The jurisdiction of a tribunal shall not be exclusive, and it

shall be at the option of the consumer whether to bring an action

against a trader before a tribunal or before the ordinary courts; so

however that -

(a) where an action has been brought before a tribunal by

a consumer, it shall not be competent for the consumer

to bring an action arising out of the same claim also

before the ordinary court; and

(b) where an action has been brought before the ordinary

courts by a consumer, or in a case brought by a trader

against a consumer and the consumer sets forth a

counter-claim, it shall be lawful for all the parties to

the action, where the claim and the counter-claim if

any are within the jurisdiction of a tribunal, by a joint

note filed in the records of the case to request that

court to transfer the case to a tribunal. Thereupon the

ordinary court shall through the Registrar transfer a

copy of the records of that case to the tribunal and

shall refrain from taking further cognisance of the

case. Registry costs in respect of the case before the

ordinary courts shall in any such case be waived, and

unless the parties otherwise agree in the note

aforesaid, costs shall be determined in a like manner as

if the case was withdrawn by the plaintiff

Provided that a case shall not be transferred to a

tribunal where the value of the claim or counter-claim

determined as provided for in sub-article (1) exceeds

ten thousand euro (€10,000); and

(c) it shall be lawful for a trader to make a counter-claim

against a consumer arising from a matter referred to in

sub-article (1) before the tribunal in an action brought

against him by a consumer.

(1) A tribunal shall determine the issues in dispute in any

claim or counter-claim before it according to the substantive merits

and justice of the case, and in accordance with equity

Provided that any question of prescription shall be

determined according to law

Provided further that when determining issues in disputes that

concern harm suffered by consumers resulting from unfair commercial

practices, the tribunal shall order proportionate and effective remedies,

including compensation for damage suffered by the consumer and,

where relevant, a price reduction or the termination of the contract;

taking also into account, where appropriate, the gravity and nature of

the unfair commercial practice, the damage suffered by the consumer

and other relevant circumstances.

(2) A tribunal may, when determining the issues in dispute in

any claim or counter-claim before it, order the trader to pay to the

consumer a sum of not less than thirty-five euro (€35) and not more

than five hundred euro (€500) as moral damages for any pain,

distress, anxiety and inconvenience.

(1) An appeal made under sub-articles (2) and (3) shall lie

from a decision of a tribunal by means of an application filed

within twenty days from the date of the decision -

(a) in the case of an appeal from the Consumer Claims

Tribunal (Malta) to the Court of Appeal (Inferior

Jurisdiction) sitting in Malta; and

(b) in the case of an appeal from the Consumer Claims

Tribunal (Gozo) to the Court of Appeal (Inferior

Jurisdiction) sitting in Gozo.

(2)

An appeal shall lie in the following cases

(a) on any matter relating to the jurisdiction of the

Tribunal; or

(b) on any question of prescription; or

(c) where the tribunal has acted contrary to the rules of

natural justice and such action has prejudiced the

rights of the appellant.

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

amount of the claim in dispute, calculated in terms of article 20(1),

exceeds one thousand two hundred euro.

(4) Where the Court of Appeal finds that the grounds for appeal

are justified it shall quash the decision of the Tribunal and shall

itself determine the original claim and any counter-claim in

accordance with the provisions of article 21.

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

frivolous or vexatious, dismiss the appeal and order the appellant to

pay a penalty which shall not be less than two hundred and thirty

euro and not exceeding one thousand one hundred and seventy

euro.

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

Government as a civil debt, liquidated and certain, and may be

collected by the Registrar. The order referred to in sub-article (5)

shall constitute an executive title within the meaning and for the

purposes of Title VII of Book Second of the Code of Organization

and Civil Procedure.

(7) The Minister responsible for justice may be regulations

under this sub-article establish the fees payable in the registry of

the courts in relation to the filing of judicial acts in connection with

an appeal under this article

Provided that where no such fees have been so established

the fees contained in Schedule A to the Code of Organization and

Civil Procedure shall apply.

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

Organization and Civil Procedure may make rules governing

appeals under this article.

(1) Subject to the provisions of any rules made in

accordance with article 27 and to the provisions of sub-article (2),

an arbiter shall regulate the proceedings before a tribunal as he

thinks best suited to the ends of justice in accordance with the rules

of natural justice.

(2) Subject to any rules referred to in sub-article (1) hereof, an

arbiter -

(a) shall ensure that a case is decided as far as is

reasonably possible on the same day of the hearing;

(b) shall inform himself in any manner he thinks fit and

shall not be bound by the rules of best evidence or the

rules relative to hearsay evidence if he is satisfied that

the evidence before him is sufficiently reliable for him

to reach a conclusion on the case before him;

(c) shall refrain as far as possible from appointing

technical referees to give expert evidence, and shall

where experts are appointed make out a list of points

upon which the expert is to give evidence;

(d) shall not be bound to give extensive reasons for his

decisions but it shall be sufficient for him to list out

the main points upon which his decision is based;

(e) shall have the same power as a magistrate sitting in a

Court of Magistrates (Malta) in its civil jurisdiction or

in the Court of Magistrates (Gozo) in its inferior civil

jurisdiction and in particular shall have power to

summon witnesses and to administer an oath to

witnesses; and

(f)

shall ensure evidence before the Tribunal shall in all

cases be tendered on oath.

(3) No proceedings before a tribunal shall be invalid because of

any non-observance of any formalities if there has been substantial

compliance with the rules.

(4)

(a) A claim shall, before being presented before a tribunal,

be referred by the party making the claim to the

Director General or a registered consumer association

who shall try to bring the parties into an agreement on

the issues in dispute.

(b) If no agreement is reached on all the issues in dispute

within fifteen working days from when the claim was

referred to the Director General or the registered

consumer association, as the case may be, by the party,

that party may then present its claim before the

tribunal.

(5) Where the Director General is in receipt of a claim referred

to him by the Malta Communications Authority where such a claim

was submitted to that Authority by an aggrieved end-user in

relation to a communications service however so described falling

within the remit of the Authority, then the Director General shall

act on the basis of the claim forwarded to him by the Authority

without the need of requiring the end-user concerned to submit the

claim again to the Director General

Provided that for the purposes of this sub-article,

"communications service" means any communications service as is

regulated in accordance with the provisions of the Malta

Communications Authority Act.

(6) Witnesses shall be paid fees in accordance with the

Witnesses (Fees) Ordinance.

(7) The provisions of the Judicial Proceedings (Use of English

Language) Act shall apply to a tribunal.

(1) The provisions of this Part shall apply to claims

arising from sales made or services provided after the coming into

force of this article, and it shall be a condition of any sale or

provision of service after the coming into force of this article that

the provisions of this Part shall apply to any claims arising

therefrom

Provided that it shall be lawful for a consumer and a trader

to agree that this Part shall also apply to sales made, or services

provided, before the coming into force of this article.

(2) It shall not be lawful for the parties to a transaction to

which sub-article (1) refers, to derogate from any right given to a

consumer under this Part.

(1) In any award the arbiter shall determine the costs that

an y of the p art ie s i s t o pay t o the other and unless special

circumstances so warrant, the losing party shall be ordered to pay

the costs of the party in whose favour the decision is awarded

Provided that where the arbiter is satisfied that a claim

presented before the Tribunal or any defence offered in respect

thereof is vexatious or frivolous, he may order the claimant or the

defendant, as the case may be, to pay to the other party a penalty of

not more than one hundred and twenty euro (€120). Any such order

shall be motivated and enforceable in the same manner as a

decision of the Tribunal.

(2) Costs shall be limited to expenses made directly in

connection with the case by the party in whose favour the payment

of costs is awarded

Provided that in no case shall costs be awarded in

connection with any expenses consisting of legal fees or any fees

however so called paid by any of the parties to advocates, legal

procurators or any other person assisting the parties before the

tribunal.

(3) A decision of the Tribunal which has become res judicata

may be enforced, depending on the residence of the person against

whom enforcement is sought, by the Court of Magistrates (Malta)

or by the Court of Magistrates (Gozo), as an executive title under

the Code of Organization and Civil Procedure

Provided that the Court fees payable in respect of any

warrant issued for the purpose of enforcing a decision of the

Tribunal shall amount to one-half of the court fees applicable in

respect of warrants issued for the purpose of enforcement of

judgments of the Court of Magistrates referred to herein.

The Director General shall monitor closely the decisions of

the Tribunal to identify traders whose conduct on the market may

be in breach of the Act or regulations made thereunder or who may

not be honouring the decisions of the Tribunal or of the Court of

Appeal to the detriment of consumers and may take any action

under this Act or regulations made thereunder against such traders

to address any consumer harm that could be ensuing from the

traders’ behaviour

Provided that any action by the Director General under this

article shall be without prejudice to the obligation of the trader to

comply with the decision of the Tribunal or of the Court of Appeal.

(1) There shall be a registry for each tribunal.

(2) The records of each tribunal shall be accessible to all

persons, and copies shall be given on payment of the prescribed fee

to any person on request.

(3) The acts and records of a tribunal shall be deposited and

kept in any place as the Minister may, with the concurrence of the

Minister responsible for justice, by order in the Gazette establish.

(4)

The Minister shall appoint a secretary to each tribunal.

(5) The secretary shall subject to such rules as may be made

under this Part, have the same functions in relation to the tribunal

as the Registrar of the Courts and the Archivist of the Courts have

in relation to the superior courts.

(6) The Minister shall also appoint deputy secretaries who

shall, subject to rules made as aforesaid, have such duties as are

assigned to them by the secretary in general and in particular as are

performed by deputy registrars in the superior courts.

(7) Before assuming the functions of their office, a secretary

and a deputy secretary shall take and subscribe to an oath before a

C o m m is s i on e r f or O a t hs t o p er f o r m t h e i r d u t i e s f a i r l y a n d

impartially according to law.

The Minister may, with the concurrence of the Minister

responsible for justice, make rules for the better functioning of the

tribunals established under this Part and may without prejudice to

the generality hereof make rules

(a) setting out the procedure before the tribunals or in

appeals from the tribunals;

CONSUMER AFFAIRS

(b) establishing the forms that are to be used in

proceedings before the tribunals or in appeals from the

tribunals;

(c) establishing rates of costs in proceedings before the

tribunals;

(d) establishing the fees that may be due to the registry of

the tribunal;

(e) setting out the duties of the secretaries and deputy

secretaries; and

(f)

prescribing anything that may or is to be prescribed in

accordance with this Part.

PART IV

Consumer Associations

A registered consumer association is a consumer

association which satisfies the Council that it complies with the

following requirements

(a) that the association has a minimum paid up

membership of one hundred members of majority age

who are citizens of Malta or permanent residents in

Malta;

(b) that the statute of the association states in substance

that the principal object of the association is to

promote consumer protection, and to guide, inform

and educate consumers;

(c) that the statute makes provision for the association to

be managed by persons freely elected by the members

of the association in an election which is held at least

once every calendar year;

(d) that the association does not have the making of profit

as one of its objects; and

(e) that the association is independent of any other

association, organisation or grouping whose principal

object is not the protection of consumers.

(1) Any consumer association wishing to be recognised as

a registered consumer association shall submit to the Council the

following

(a) an application on the appropriate form issued under

the authority of the Council;

(b) a complete updated copy of its statute duly certified by

the person who holds the most senior executive post

with the association;

(c) a list of the association’s members including their

respective addresses and the legally valid

identification document numbers; and

(d) the official address of the association.

(2) The Council shall at its earliest opportunity examine and

verify whether the association satisfies the requirements laid down

in article 28. Where these requirements are satisfied, the Council

shall register the applicant as a registered consumer association,

and shall issue a certificate to the association confirming the

registration of the said association and the date thereof.

(3) Where the Council determines that an association does not

satisfy the requirements for registration, it shall within fourteen

days from the date of its decision give notice thereof in writing to

the applicant giving the grounds for such a decision.

(4) The Council may refuse to register a consumer association

under a name or designation which it considers to be offensive or

otherwise undesirable.

(5) A certificate issued by the Council to the effect that a

particular consumer association is a registered consumer

association which complies with all the requirements laid down

under sub-article (1), shall be valid and conclusive evidence of the

fact for all intents and purposes of law.

(6) No fees shall be charged in connection with the registration

of a consumer association with the Council.

(1) The Council shall keep a register of all registered

consumer associations, stating their names, dates of registration,

number of members and any other particulars the Council may

deem appropriate.

(2) The register shall be open to inspection by any person free

of charge at any time and place as may be determined by the

Council

Provided that the identity of the members of a registered

consumer association shall not be open to public scrutiny.

Every registered consumer association shall keep a fully

updated record of the names, addresses and the legally valid

identification document numbers of its members.

(1) A registered consumer association shall submit to the

Council all such returns and information on its membership and

activities as the Council may from time to time require. Without

prejudice to the foregoing, each registered consumer association

shall in every calendar year not later than the end of March lodge

wi t h t h e C o u n c i l a r e t u r n of i t s m e m b e r s h i p a s at t h e 3 1 s t

December of the previous year.

(2) A registered consumer association shall provide the

Council with a copy of any amendments to its statute, which copy

must be duly certified by the person holding the most senior

executive post with the association. Any such amendment must be

notified to the Council within fourteen days of its approval by the

said association.

As soon as practicable after the lapse of each successive

calendar year but not later than the end of May of each year, the

Council shall publish for general information in the Gazette a list of

the registered consumer associations duly registered as on the 31st

December of the previous year.

Any person who knowingly or recklessly makes a false or

misleading statement or declaration or otherwise gives any false or

misleading information to the Council under any of the provisions

of this Part shall, on conviction, be liable to a fine (multa) of up to

two thousand three hundred and fifty euro (€2,350) or to a term of

imprisonment not exceeding six months or to both such fine and

imprisonment.

A registered consumer association shall enjoy the rights,

benefits, privileges and exemptions granted by this Part for so long

as it remains so registered and continues to comply with the

requirements of this Part.

(1) Notwithstanding the provisions of any other law, a

registered consumer association and any of its officials acting on its

behalf shall be exempt from any liability or responsibility whether

civil or criminal, in respect of any publication, statement or other

communication or activity, which is bona fide and is intended

solely for the better information, education or protection of

consumers. Such exemption shall extend to all persons publishing,

printing, recording, broadcasting or communicating such

information by any means whatsoever.

(2) For the purposes of sub-article (1), a publication, statement,

communication or activity shall be deemed to be bona fide when it

is not made or undertaken recklessly or maliciously, adheres to the

principles of fairness and objectivity, and is not in contravention of

any rules of practice made in accordance with article 7(1)(b).

(3) Any person alleging bad faith by a registered consumer

association shall have the burden of proving such allegations.

(1) A registered consumer association may in its own

name make reports or complaints to the competent authority on any

breach of this Act, any law administered by the Director General or

any such laws or regulations as the Prime Minister may from time

to time determine by notice published in the Gazette.

(2) In any prosecution by the competent authority made

following a report or complaint under sub-article (1), a

representative of the association shall be called to give evidence on

the facts known to the association about the complaint or report and

indicate to the court any evidence in respect of the charge of which

it may be aware.

(3) In the course of the criminal proceedings made as a result

of a report or complaint by the association, an official authorised

by the association for this purpose shall be entitled to participate

and assist in the prosecution of the said offences.

A registered consumer association shall be exempt from

the payment of income tax.

The Council may grant to any registered consumer

associations such assistance and facilities as he may deem fit from

time to time in order to enable them to exercise their functions.

(1) The Council may whenever it considers it to be

necessary, consult with registered consumer associations on any

matter relating to or arising from the supply of goods and services

to consumers.

(2) The Council may also undertake initiatives or campaigns

jointly with registered consumer associations as it deems fit from

time to time.

The Council shall cancel the registration of a registered

consumer association in any of the following cases where

(a) a request for cancellation is made by the association;

(b) it is satisfied that the association no longer complies

with any of the requirements laid down in article 28;

(c) for any reason, the statute regulating the association is

not in conformity with the provisions of this Part;

(d) it is satisfied that the association has ceased to exist or

to function;

(e) it is satisfied that sufficient proof exists that the

registration of the association had been procured by

fraud, negligence or serious mistake;

(f)

the association or anyone acting on its behalf is

convicted under article 34; or

(g) the association has repeatedly acted in breach of any

rules of practice made under article 7(1)(b), or has in

any matter of gravity acted even once in breach of

such rules.

Nothing in this Part shall be construed as obstructing or

limiting the right of persons to set up associations for the protection

and promotion of consumer interests without qualifying in terms of

article 28. In such a case an association which is not registered

shall not have any right to consultation, assistance or recognition

from the Council, or to any other right, privilege or exemption

conferred by this Part upon registered consumer associations.

PART V

Declaration of Principles

(1) The principles stated in sub-article (2) shall not be

directly enforceable in any court or tribunal, but shall be adhered to

in the interpretation and implementation of this Act and any

regulations made thereunder.

(2)

Consumers shall be entitled

(a) to have adequate access to basic essential goods and

services at reasonable prices and to be able to choose

from a diverse range of goods and services;

(b) to be protected against goods, production processes

and services which are harmful to health;

(c) to have adequate access to information about goods or

services which is clear, correct and does not mislead;

(d) to form and join consumer associations and to have

consumer interests represented in the making and

execution of government policy, and in the

development of goods and services;

(e) to protection from unlawful or unfair trading practices;

(f)

to receive a fair settlement of just claims including

adequate compensation for misrepresentation, shoddy

goods or unsatisfactory services; and

(g) to effective, quick and inexpensive means of redress in

disputes they may have with traders.

(3) A consumer may not waive any rights established in his

favour by or under this Act.

PART VI

Consumer Alternative Dispute Resolution

In this Part unless the context otherwise requires

"this Part" includes any regulations made under this Part; and

"residual ADR entity" means any such entity as the Minister

may, after consultation with the Council, designate to deal with any

disputes that consumers may have with traders in relation to which

there is no existing ADR entity in place competent to deal with

such disputes.

Consumers shall have the right to have access to ADR

procedures with regard to disputes that they may have with traders

Provided that where there is no ADR entity which is

competent to deal with the resolution of any such disputes, then

such disputes shall be referred to any such residual ADR entity or

entities as may from time to time be designated in accordance with

this Part.

(1) The entity listed in the Third Schedule to this Act

shall perform the function of a residual ADR entity. The Minister

may, after consultation with the Council, by order designate any

other entity or entities to undertake the function of a residual ADR

entity or entities which entity or entities shall be listed in the Third

Schedule

Provided that the Minister may by order, after consultation

with the Council, amend the said Schedule and in particular the

Minister may appoint different entities to deal with different types

of disputes

Provided further that the Minister shall by order amend the

said Schedule at the written request of the Council if he is satisfied

that the Council considers that an entity that has been designated as

a residual ADR entity does not satisfy or no longer satisfies one or

more requisites under this Part.

(2) An entity designated to exercise the functions of a residual

ADR entity shall, in doing so, act independently of the Council,

other than in compliance with any legitimate orders, however so

described, that the Council may impose to ensure that the aforesaid

entity adheres to its obligations at law in the exercise of its role as a

residual ADR entity.

(1) Except where competences are 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 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.

The provisions of articles 102, 103, 104 and 105, in so far as

they relate to the exercise of the powers of investigation of the

Director General in the performance of his regulatory functions, shall

similarly apply to the Chairman of the Council when acting to monitor

and investigate ADR entities and traders.

With regard to the functions of the Council established in

article 43D(1)(c) the institution of judicial proceedings by the Council

and the relative judicial process shall be according to PART IIA before

the Civil Court, in so far as this is applicable.

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.

PART VII

Unfair contract terms

(1) It shall be unlawful in consumer contracts to use unfair

terms, or terms or combination of terms which are unfair in that

they have as an object or effect any of the objects and effects

referred to in sub-article (2), and any term prohibited as aforesaid

inserted in any consumer contract shall be deemed never to have

been so inserted.

(2) The terms referred to in sub-article (1) include terms which

have the object or effect of -

(a) excluding or limiting the liability of a trader by reason

of his own fraud or gross negligence or that of his

employees or agents, or by reason of any failure to

fulfil an obligation constituting one of the fundamental

elements of the contract;

(b) establishing an unreasonably short period for notifying

the trader of any defects;

(c) excluding or limiting the legal rights of a consumer

against the trader in the event of total or partial non-

performance or inadequate performance by the trader

of any of his contractual obligations;

(d) prohibiting the consumer from offsetting a debt owed

to the trader against a claim which the consumer may

have against the same trader;

(e) making an agreement binding on the consumer

whereas the provision of services or goods by the

trader is subject to a condition whose realisation

depends solely on the will of the trader;

(f)

allowing the trader to retain sums paid by the

consumer if the consumer decides not to conclude or

perform the contract, without providing for the

consumer to receive compensation of an equivalent

amount from the trader where the trader is the party

cancelling the contract;

(g) requiring a consumer who fails to fulfil his obligation,

to pay to the trader as compensation a sum which is

disproportionately high to the value of the goods or

services purchased or hired;

(h) determining the compensation payable by a consumer

who fails to fulfil his obligations, without providing

for compensation of the same magnitude by the trader

who fails to fulfil his;

(i)

limiting the means of proof which the consumer can

use;

(j)

causing the consumer to waive any ground of claim

against the trader in the event of a dispute;

(k) prohibiting the consumer from seeking the

cancellation of the contract if the trader fails to fulfil

his obligations;

(l)

restricting the right of the consumer to cancel the

contract if the trader, in connection with any guarantee

or warranty given, does not fulfil his obligation or fails

to do so within a reasonable period;

(m) irrevocably binding the consumer to terms with which

he had no real opportunity of becoming acquainted

before the conclusion of the contract;

(n) enabling the trader to alter the terms of a contract

unilaterally, without a valid reason which is specified

in the contract;

(o) enabling the trader to alter unilaterally, without a valid

reason, any characteristics of the product or service to

be provided;

(p) providing for the price of goods to be determined at

the time of delivery by the trader or allowing him to

increase the price without in any case giving the

consumer the corresponding right to cancel the

contract if the final price is too high in relation to the

(q) causing the price to vary by reference to factors

depending only on the will of the trader;

(r) giving the trader the right unilaterally to determine

whether the goods or services supplied are in

conformity with the contract;

(s) giving the trader the exclusive right to interpret any

term of the contract;

(t)

limiting or eliminating the obligation of the trader to

respect commitments undertaken by his agents or

employees;

CONSUMER AFFAIRS

(u) obliging the consumer to fulfil his obligations where

the trader does not perform his;

(v) allowing the trader the possibility of transferring all

his rights and obligations under the contract where this

may serve to reduce the guarantees or warranties for

the consumer, without the consent of the consumer;

(w) providing for an immediate and final commitment by

the consumer on signature of the contract, with the

trader contracting subject to a condition the fulfilment

of which depends only on the will of the trader;

(x) permitting the trader to establish or alter unilaterally

the period for delivering goods or supplying a service;

(y) excluding or limiting the legal liability of a trader or

supplier in the event of the death of a consumer or

personal injury to the latter resulting from an act or

omission of that trader or supplier;

(z) authorizing the trader or supplier to dissolve the

contract on a discretionary basis where the same

facility is not granted to the consumer, or permitting

the trader or supplier to retain the sums paid for

services not yet supplied by him where it is the trader

or supplier himself who dissolves the contract;

(aa) enabling the trader or supplier to terminate a contract

of indeterminate duration without reasonable notice

except where there are serious grounds for doing so;

(bb) automatically extending a contract of fixed duration

where the consumer does not indicate otherwise, when

the deadline fixed for the consumer to express this

desire not to extend the contract is unreasonably early;

(cc) excluding or hindering the consumer’s right to take

legal action or exercise any other legal remedy,

particularly by requiring the consumer to take disputes

to arbitration not covered by legal provisions, unduly

restricting the evidence available to him or imposing

on him a burden of proof which, according to the

applicable law, should lie with another party to the

contract.

(3) The Minister may, after consulting the Council, by

regulations amend, substitute or revoke any of the terms listed in

sub-article (2).

(4) The list of terms laid down in sub-article (2) is not an

exhaustive list, and accordingly nothing contained in sub-articles

(1) and (2) shall be construed as limiting or otherwise prejudicing

the generality of the provisions of article 45.

(5) In this Part, the term "goods" shall include immovable

property.

(1) An unfair term means any term in a consumer contract,

which on its own or in conjunction with one or more other terms -

(a) creates a significant imbalance between the rights and

obligations of the contracting parties to the detriment

of the consumer; or

(b) causes the performance of the contract to be unduly

detrimental to the consumer; or

(c) causes the performance of the contract to be

significantly different from what the consumer could

reasonably expect; or

(d) is incompatible with the requirements of good faith.

(2) The unfairness of a term shall be assessed, taking into

account the following

(a) the nature of the goods or services for which the

contract was concluded;

(b) the time of conclusion of the contract; and

(c) all the circumstances attending the conclusion of the

contract and all the other terms of the contract or of

another contract on which it is dependent. Such

circumstances may also include

(i) the bargaining power of the parties;

(ii) whether a consumer was subjected to undue

pressure; and

(iii) whether the lack of knowledge or skill of a

consumer was improperly taken advantage of.

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

the assessment of fairness of a term shall not relate -

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

contract, or

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

against the goods or services supplied in exchange.

(3) The provisions of articles 44 to 47 shall be applicable to

contracts concluded or executed after the coming into force of these

articles.

A consumer contract that includes a prohibited or unfair

term shall not be binding on the consumer unless the contract is

capable of continuing in existence without the unfair term.

(1) In any consumer contract, where all or some terms

offered by a trader to a consumer are in writing, these terms shall

be w r i t t e n i n p la i n an d i n t e l l i g i b le l a n g u a ge w h i c h ca n b e

understood by the consumers to whom the contract is directed.

(2) Where any term is ambivalent or any doubt arises about the

meaning of a term, the interpretation most favourable to the

consumer shall prevail

Provided that this sub-article shall not apply to proceedings

brought under article 94.

The provisions of this Part shall apply notwithstanding any

term in a consumer contract which applies or purports to apply the

law of a non-Member State, if the contract has a close connection

with the territory of any Member State.

The provisions of this Part shall prevail over anything to

the contrary contained in the Civil Code and the Commercial Code.

The purpose of this Part is to implement the provisions of

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

consumer contracts and the provisions of this Part shall be applied

and interpreted accordingly.

PART VIII

Unfair commercial practices and illicit schemes

Title I

Unfair commercial practices

48. (Deleted by II. 2008.27).

49. (Deleted by II. 2008.27).

50. (Deleted by II. 2008.27).

51. (Deleted by II. 2008.27).

(Mħassar bl-Att II. 2008.27).

(Mħassar bl-Att II. 2008.27).

(Mħassar bl-Att II. 2008.27).

(Mħassar bl-Att II. 2008.27).

In this Title, unless the context otherwise requires

"administrative provision" means any provision in a measure

issued by any government Ministry or department, local authority

or any other public body which is binding on the person to whom it

is addressed, including any order, licence, permit, warrant or

decision;

"code of conduct" means an agreement or set of rules not

imposed by law or administrative provision which defines the

behaviour of traders who undertake to be bound by the code in

relation to one or more particular commercial practices or business

sectors;

"code owner" means any entity, including a trader or group of

traders, which is responsible for the formulation and revision of a

code of conduct and, or for monitoring compliance with the code

by those who have undertaken to be bound by it;

"commercial practice" means any act, omission, course of

conduct or representation, commercial communication including

advertising and marketing, by a trader, directly connected with the

promotion, sale or supply of a product to consumers; whether it

takes place before, during or after a commercial transaction in

relation to the product;

"invitation to purchase" means a commercial communication

which indicates characteristics of the product and the price in a way

appropriate to the means of commercial communication used,

which is such as to induce a consumer to make a purchase;

"online marketplace" means a service using software, including a

website, part of a website or an application, operated by or on behalf of

a trader which allows consumers to conclude distance contracts with

other traders or consumers;

"product" means any good or service including immovable

property, digital service and digital content, as well as rights and

obligations;

"professional diligence" means the standard of skill and care

which a trader may reasonably be expected to exercise towards

consumers, commensurate with honest market practice and, or the

general principle of good faith, in the trader’s field of activity;

"ranking" means the relative prominence given to products, as

presented, organised or communicated by the trader, irrespective of the

technological means used for such presentation, organisation or

communication;

"regulated profession and regulated professional activity" has the

s a m e m e a ni n g a s s i g n e d t o i t i n t he M u t ua l Re c o g ni t i on o f

Qualifications Act;

"to materially distort the economic behaviour of a consumer"

means using a commercial practice to appreciably impair the

consumer’s ability to make an informed decision, thereby causing

the consumer to take a transactional decision that he would not

have taken otherwise;

"trader" means any natural person or any legal person who, in

commercial practices covered by this Title, is acting for purposes

relating to his trade, business, craft or profession and includes

anyone acting in the name or on behalf of a trader;

"transactional decision" means any decision taken by a consumer

concerning whether, how and on what terms -

(i) to purchase a product, or

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

product, or

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

(iv) to exercise a contractual right in relation to the

product, whether the consumer decides to act or

to refrain from acting;

"undue influence" means exploiting a position of power in

relation to the consumer so as to apply pressure even without using

or threatening to use physical force, in a way which significantly

limits the consumer’s ability to make an informed decision.

(1) Unfair commercial practices shall be prohibited.

(2)

A commercial practice shall be unfair if

(a) it is contrary to the requirements of professional

diligence, and

(b) it materially distorts or is likely to materially distort

the economic behaviour with regard to the product, of

the average consumer whom it reaches or to whom it is

addressed, or of the average member of the group

when a commercial practice is directed to a particular

group of consumers

Provided that, other than the advertising practice of

making exaggerated statements or statements which

are not meant to be taken literally, commercial

practices which are likely to materially distort the

economic behaviour only of a clearly identifiable

group of consumers who are particularly vulnerable to

the practice or the underlying product because of their

mental or physical infirmity, age or credulity in a way

which the trader could reasonably be expected to

foresee, shall be assessed from the perspective of the

average member of that group.

(3) In particular, a commercial practice shall be unfair if it is

misleading in terms of articles 51C and 51D, or aggressive in terms

of article 51E.

(4) Those commercial practices listed in the First Schedule

shall in all circumstances be regarded as unfair.

A commercial practice shall be regarded as misleading if

(a) it contains false information; or

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

or is likely to deceive the average consumer, even if

the information is factually correct, in relation to one

or more of the following elements, and in either case

causes or is likely to cause him to take a transactional

decision that he would not have taken otherwise

(i) the existence or nature of the product;

(ii) the main characteristics of the product, such as

its availability, benefits, risks, execution,

composition, accessories, after-sale customer

assistance and complaint handling, method and

date of manufacture or provision, delivery,

fitness

for

purpose,

usage,

quantity,

specification, geographical or commercial origin

or the results to be expected from its use, or the

results and material features of tests or checks

carried out on the product;

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

motives for the commercial practice and the

nature of the sales process, any statement or

symbol in relation to direct or indirect

sponsorship or approval of the trader or the

product;

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

calculated, or the existence of a specific price

advantage;

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

repair;

(vi) the nature, attributes and rights of the trader or

his agent, such as his identity and assets, his

qualifications, status, approval, affiliation or

connection and ownership of industrial,

commercial or intellectual property rights or his

awards and distinctions;

(vii)

the consumer’s rights, including the right to

repair, replacement or reimbursement as

provided in Part X of the Act, or the risks he

may face; or

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

and circumstances, it causes or is likely to cause the

average consumer to take a transactional decision that

he would not have taken otherwise, and it involves

(i)

any marketing of a product, including

comparative

advertising,

which

creates

confusion with any products, trade marks, trade

names or other distinguishing marks of a

competitor; or

(ii) non-compliance by the trader with commitments

contained in codes of conduct by which the

trader has undertaken to be bound, where -

(a) the commitment is not aspirational but is

firm and is capable of being verified, and

(b) the trader indicates in a commercial

practice that he is bound by the code; or

(iii) any marketing of a good, in one Member State,

as being identical to a good marketed in other

Member States, while that good has significantly

different composition or characteristics, unless

justified by legitimate and objective factors.

(1) A

commercial

practice

shall

be

regarded

as

misleading if

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

and circumstances and the limitations of the

communication medium, it omits material information

that the average consumer needs, according to the

context, to take an informed transactional decision and

thereby causes or is likely to cause the average

consumer to take a transactional decision that he

would not have taken otherwise; or

(b) taking account of the matters described in paragraph

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

unintelligible, ambiguous or untimely manner, such

material information as referred to in that paragraph,

or fails to identify the commercial intent of the

commercial practice if not already apparent from the

context, and where, in either case, this causes or is

likely to cause the average consumer to take a

transactional decision that he would not have taken

otherwise.

(2) Where the medium used to communicate the commercial

practice imposes limitations of space or time, these limitations and

any measures taken by the trader to make the information available

to consumers by other means shall be taken into account in

deciding whether information has been omitted.

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

information shall be regarded as material, if not apparent from the

context

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

appropriate to the medium and the product;

(b) the geographical address and the identity of the trader,

such as his trading name and, where applicable, the

geographical address and the identity of the trader on

whose behalf he is acting;

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

product means that the price cannot reasonably be

calculated in advance, the manner in which the price is

calculated, as well as, where appropriate, all additional

freight, delivery or postal charges or, where these

charges cannot reasonably be calculated in advance,

the fact that such additional charges may be payable;

(d) the arrangements for payment, delivery and performance,

if they depart from the requirements of professional

diligence;

(e) for products and transactions involving a right of

withdrawal or cancellation, the existence of such a

right;

(f)

for products offered on online marketplaces, whether the

third party offering the products is a trader or not, on the

basis of the declaration of that third party to the provider

of the online marketplace.

(3a) When providing consumers with the possibility to search

for products offered by different traders or by consumers on the

basis of a query in the form of a keyword, phrase or other input,

irrespective of where transactions are ultimately concluded, general

information, made available in a specific section of the online

interface that is directly and easily accessible from the page where

the query results are presented, on the main parameters determining

the ranking of products presented to the consumer as a result of the

search query and the relative importance of those parameters, as

opposed to other parameters, shall be regarded as material

Provided that this sub-article does not apply to providers of

online search engines as defined in point (6) of Article 2 of

Regulation (EU) 2019/1150 of the European Parliament and of the

Council of 20 June 2019 on promoting fairness and transparency

for business users of online intermediation services.

(4) Information requirements established by European Union

law in relation to commercial communications including

advertising or marketing shall be regarded as material.

(5) Where a trader provides access to consumer reviews of

products, information about whether and how the trader ensures that

the published reviews originate from consumers who have actually

used or purchased the product shall be regarded as material.

(1) A commercial practice shall be regarded as aggressive

if, in its factual context, taking account of all its features and

circumstances, by harassment, coercion, including the use of

physical force, or undue influence, it significantly impairs or is

likely to significantly impair the average consumer’s freedom of

choice or conduct with regard to the product and thereby causes

him or is likely to cause him to take a transactional decision that he

would not have taken otherwise.

(2) In determining whether a commercial practice uses

harassment, coercion, including the use of physical force, or undue

influence, account shall be taken of

(a) its timing, location, nature or persistence;

(b) the use of threatening or abusive language or

behaviour;

(c) the exploitation by the trader of any specific

misfortune or circumstance of such gravity as to

impair the consumer’s judgement, of which the trader

is aware, to influence the consumer’s decision with

regard to the product;

(d) any onerous or disproportionate non-contractual

barriers imposed by the trader where a consumer

wishes to exercise rights under the contract, including

rights to terminate a contract or to switch to another

product or another trader;

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

taken.

A person who engages in an unfair commercial practice in

terms of articles 51B, 51C, 51D and 51E, shall be guilty of an

infringement against this Act.

(1) The provisions of this Title shall not preclude the

control by code owners of unfair commercial practices through

codes of conduct.

(2) Recourse to code owners for the purpose of ensuring

compliance with such codes of conduct shall not prejudice any

other form of redress available under this Act or any other law.

The provisions of this Title shall not apply to any other

law relating to the certification and indication of the standard of

fineness of articles of precious metal.

The provisions of this Title shall be without prejudice to

(a) any provision under the laws of Malta regulating

contract in particular those governing the validity,

formation or effect thereof;

(b) any rule relating to the health and safety aspects of

products;

(c) any provision under the laws of Malta implementing a

Community Directive or any provision under

Community law regulating specific aspects of unfair

commercial practices, in so far as those specific

aspects are concerned;

(d) any condition of establishment or of an authorization

regime or any deontological code of conduct or other

specific rules governing regulated professions in order

to uphold high standards of integrity on the part of the

professional;

(e) any requirement imposed by any other law, in the field

of financial services and immovable property, which is

more restrictive or prescriptive than the requirements

imposed by the provisions of this Title.

The purpose of this Title is to implement Directive 2005/

29/EC of the European Parliament and of the Council of 11 May

2005 concerning unfair business-to-consumer commercial practices

in the internal market, and the provisions of this Title shall be

applied and interpreted accordingly.

Title II

Illicit schemes

52. (Deleted by II. 2008.30).

52A. (Deleted by VI. 2014.6).

53. (Deleted by VI. 2014.6).

54. (Deleted by II. 2008.33).

(Mħassar bl-Att II. 2008.30).

(Mħassar bl-Att VI. 2014.6).

(Mħassar bl-Att VI. 2014.6).

(Mħassar bl-Att II. 2008.33).

The provisions in this Part shall prevail over anything to

the contrary contained in the Commercial Code.

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

to the 12th December, 2007 shall be deemed to have remained in

force for the purpose of any prosecution commenced in terms

thereof prior to the said date.

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

prior to 12th December, 2007 happened before the said date, but no

prosecution was commenced by the said date, the provisions of this

Part as in force from the 12th December, 2007 shall apply, as if

such act happened after the said date.

PART IX

Liability for defective products

In this Part, unless the context otherwise requires

"personal injury" includes any disease and any impairment of the

physical or mental condition of a person;

"primary agricultural products" means any product of the soil, of

stock-farming and of fisheries and game;

"product" means any movable and includes

(a) any movable incorporated into another product or into

an immovable,

(b) electricity,

(c) gas, and

(d) primary agricultural products;

"producer" means

(a) the manufacturer of a finished or processed product, or

(b) the manufacturer of a component part, or

(c) the producer of any raw material, or

(d) the producer of any products of the soil, of stock-

farming and of fisheries and game, or

CONSUMER AFFAIRS

(e) any person who, by putting his name, trade mark or

other distinguishing feature on the product, presents

himself as its producer, or

(f)

where the product is manufactured or produced outside

a Member State, any person who imports into an EEA

State a product for sale, hire, leasing or any other form

of distribution.

The producer shall be liable for the damage caused wholly

or partly by a defect in his product.

The injured party shall only have the onus of proving the

damage, the defect and the causal relationship between the defect

and the damage and shall not have the onus of proving the fault of

the producer.

(1) The supplier of the product shall be treated as the

producer if -

(a) the producer cannot be identified and the injured party

has asked the supplier to provide the identity and full

address of the producer or of the person who supplied

the supplier with the product, or

(b) in the case of an imported product where the importer

cannot be identified even if the name of the producer is

indicated and the injured party has asked the supplier

to provide the identity and full address of the importer

or of the person who supplied the supplier with the

product,

and the supplier fails do so within thirty days from when the

request was made to him.

(2)

A request under sub-article (1) shall -

(a) be in writing and sent by registered mail or official

letter to the place of trade or business of the supplier;

and

(b) indicate the product that caused the damage, the place

from where and, if possible the approximate date,

when it was acquired.

(3) The supplier has the burden of proving that he provided the

injured party with the information required under sub-article (1)

within the period therein indicated.

(1) A product is defective if it fails to provide the safety

which a person is entitled to expect, taking all circumstances into

account including

(a) the presentation of the product, how it was marketed,

and any directions and warnings provided,

(b) the use to which it could reasonably be expected that

the product would be put, and

(c) the time when the product was put into circulation.

(2) A product shall not be considered defective only because a

better product is subsequently put into circulation.

(3) A product shall be considered defective if it does not

provide for the safety which is usually provided for by other

models of the same type.

Damages that may be recovered under this Part are

(a) damages caused by death or by personal injury, or

(b) loss of, damage to, or destruction of, any item of

property other than the defective product itself, having

a value of at least five hundred euro (€500), or such

other value that the Minister may prescribe

Provided that -

(i)

the item of property is of a type ordinarily

intended for private use or consumption, and

(ii) the item of property was used by the injured

party mainly for his own private use or

consumption.

The producer shall not be liable under this Part if he

proves -

(a) that he did not put the product into circulation, or

(b) that, having regard to the circumstances, it is probable

that the defect which caused the damage did not exist

at the time when the product was put into circulation

by him or that this defect came into being afterwards,

or

(c) that the product was neither manufactured by him for

sale or for any form of distribution for an economic

purpose nor manufactured or distributed by him in the

course of his business or trade, or

(d) that the defect in question is due to compliance with a

mandatory requirement imposed by law or by a public

authority, or

(e) that the state of scientific and technical knowledge at

the time when he put the product into circulation was

not such as to enable the existence of the defect to be

discovered, or

(f)

in the case of the manufacturer of a component or the

producer of a raw material, that the defect is

attributable to the design of the product in which the

component has been fitted or the raw material has been

incorporated or to the instruction given by the

manufacturer of the product.

The court may, notwithstanding any provisions of the Code

of Organization and Civil Procedure, order that the fees of a referee

be provisionally paid or deposited by the producer if there is prima

facie evidence that the damage was caused by a defect in the

product.

Where under this Part, two or more persons are liable for

the same damage, they shall be liable jointly and severally.

Article 1051 of the Civil Code shall apply in determining

the liability of the producer where the damage is caused by a defect

in the product and by the fault of the injured person or by a person

for whom the injured person is responsible.

The liability of the producer shall not be reduced when the

damage is caused both by a defect in the product and by the act or

omission of a third party.

(1) The action for damages under this Part shall be barred

by the lapse of three years commencing from the day when the

injured party became aware, or should reasonably have become

aware, of the damage, the defect and the identity of the producer.

(2) Notwithstanding sub-article (1), the action for damages

u n d e r t h i s P a r t s h a l l in a n y c a s e b e ex t i n g u i s h e d u p o n t he

expiration of the period of ten years from the date on which the

producer put into circulation the actual product which caused the

damage unless the injured party has in the meantime instituted legal

proceedings against the producer.

(3) Sub-titles I, II and III of Title XXV of the Civil Code

concerning the causes which prevent, suspend and interrupt

prescription shall apply to actions made under this Part.

(4) The burden of proving when the actual product which

caused the damage was put into circulation shall lie on the

producer.

The liability of a producer under this Part may not be

limited or excluded whether by any term of contract, by any notice

or in any other manner whatsoever.

The provisions under this Part shall not exclude or limit

any rights or remedies available to the injured person under the

Civil Code or any other law.

The provisions under this Part shall not apply to injury or

damage arising from nuclear accidents which are governed by any

international agreement to which Malta is a party.

This part shall apply to products which are put into

circulation in any Member State as from 1st May, 2004.

The purpose of this Part is to implement the provisions of

Council Directive 85/374/EEC of 25 July 1985 on the

a p p r o x i m a t i o n o f t h e l a w s , r e g u l a t i o n s an d ad m i n i s t r a t i v e

provisions of the Member States concerning liability for defective

products as amended by Directive 1999/34/EC of the European

Parliament and of the Council of 10 May 1999 and this Part shall be

applied and interpreted accordingly.

PART X

Sale of goods to consumers

(1) In this Part unless the context otherwise requires

"consumer" means any natural person who, in relation to contracts

covered by this Part, is acting for purposes which are outside that

person's trade, business, craft or profession;

"commercial guarantee" means any undertaking by a seller or a

producer (the guarantor) to the consumer, in addition to the seller’s

legal obligation relating to the guarantee of conformity, to reimburse

the price paid or to replace, repair or service goods in any way if they

do not meet the specifications or any other requirements not related to

conformity set out in the guarantee statement or in the relevant

advertising available at the time of, or before the conclusion of the

contract;

"compatibility" means the ability of the goods to function with

hardware or software with which goods of the same type are normally

used, without the need to convert the goods, hardware or software;

"digital content" means data which are produced and supplied in

digital form;

"digital service" means

(a) a service that allows the consumer to create, process,

store or access data in digital form; or#

(b) a service that allows the sharing of or any other

interaction with data in digital form uploaded or

created by the consumer or other users of that service;

"durability" means the ability of the goods to maintain their

required functions and performance through normal use;

"durable medium" means any instrument which enables the

consumer or the seller to store information addressed personally to that

person in a way that is accessible for future reference, for a period of

time adequate for the purposes of the information, and which allows

the unchanged reproduction of the information stored;

"free of charge" means free of the necessary costs incurred in

order to bring the goods into conformity, particularly the cost of

postage, carriage, labour or materials;

"functionality" means the ability of the goods to perform their

functions having regard to their purpose;

"goods" means

(a) any tangible movable items of property

Provided that water, gas and electricity shall be

considered as goods within the meaning of this Part

when they are put up for sale in a limited volume or a

set quantity;

(b)

tangible movable items that incorporate or are inter-

connected with digital content or a digital service in such

a way that the absence of that digital content or digital

service would prevent the goods from performing their

functions, hereinafter referred to as "goods with digital

elements;

"guarantor" means the person who is responsible to the consumer

for the execution of a commercial guarantee and includes any other

person acting for or on behalf of the guarantor;

"interoperability" means the ability of the goods to function with

hardware or software different from those with which goods of the

same type are normally used;

"producer" means a manufacturer of goods, an importer of goods

into the European Union or any person purporting to be a producer by

placing its name, trade mark or other distinctive sign on the goods;

"public auction" means a method of sale where goods or services

are offered by the seller to consumers, who attend or are given the

possibility to attend the auction in person, through a transparent,

competitive bidding procedure run by an auctioneer and where the

successful bidder is bound to purchase the goods or services;

"repair" means in the event of lack of conformity, the process of

bringing goods into conformity with the sales contract;

"sales contract" means any contract under which the seller transfers

or undertakes to transfer ownership of goods to a consumer, and the

consumer pays or undertakes to pay the price thereof;

"seller" means any natural person or any legal person, irrespective

of whether privately or publicly owned, that is acting, including

through any other person acting in that natural or legal person's name

or on that person's behalf, for purposes relating to that person's trade,

business, craft or profession, in relation to contracts covered by this

Part.

(2) The provisions of this Part shall be applicable to sales

contracts between a consumer and a seller.

(3) Contracts between a consumer and a seller for the supply of

goods to be manufactured or produced shall also be deemed sales

contracts for the purposes of this Part.

(4)

This Part shall not apply to contracts for the supply of

digital content or digital services. It shall, however, apply to digital

content or digital services which are incorporated in or inter-connected

with goods, as defined in paragraph (b) of the definition "goods" in

sub-article (1) and are provided with the goods under the sales

contracts, irrespective of whether such digital content or digital service

is supplied by the seller or by a third party. In the event of doubt as to

whether the supply of incorporated or inter-connected digital content

or an incorporated or inter-connected digital service forms part of the

sales contract, the digital content or digital service shall be presumed

to be covered by the sales contract.

(5)

This Part shall not apply to

(a) any tangible medium which serves exclusively as a

carrier for digital content;

(b) any goods sold by way of execution or otherwise by

authority of law; or

(c) contracts for the sale of second-hand goods sold at

public auction

Provided that in the case referred to in paragraph (c), clear

and comprehensive information that the rights deriving from this Part

do not apply shall be made easily available to consumers by

auctioneers as defined in the Auctioneers Act.

(1)

Sellers shall deliver goods to the consumer that

conform with the sales contract, which goods shall, in particular,

where applicable

(a) be of the description, type, quantity and quality, and

possess

the

functionality,

compatibility,

interoperability and other features, as required by the

sales contract;

(b) be fit for any particular purpose for which the

consumer requires them and which the consumer made

known to the seller at the latest at the time of the

conclusion of the sales contract, and in respect of

which the seller has given acceptance;

(c) be delivered with all accessories and instructions,

including on installation, as stipulated by the sales

contract; and

(d) be supplied with updates as stipulated by the sales

contract.

(2)

In addition to complying with any subjective requirement

for conformity with sub-article (1) the goods shall also

(a) be fit for the purposes for which goods of the same

type would normally be used, taking into account,

CONSUMER AFFAIRS

where applicable, any law, technical standards or, in

the absence of such technical standards, applicable

sector-specific industry codes of conduct;

(b) where applicable, be of the quality and correspond to

the description of a sample or model that the seller

made available to the consumer before the conclusion

of the contract;

(c) where applicable, be delivered along with such

accessories,

including

packaging,

installation

instructions or other instructions, as the consumer may

reasonably expect to receive; and

(d) be of the quantity and possess the qualities and other

features, including in relation to durability,

functionality, compatibility and security normal for

goods of the same type and which the consumer may

reasonably expect given the nature of the goods and

taking into account any public statement made by or

on behalf of the seller, or other persons in previous

links of the chain of transactions, including the

producer, particularly in advertising or on labelling.

(3)

The seller shall not be bound by public statements, as

referred to in sub-article (2)(d) if the seller shows that

(a) the seller was not, and could not reasonably have been,

aware of the public statement in question;

(b) by the time of conclusion of the contract, the public

statement had been corrected in the same way as, or in

a way comparable to how, it had been made; or

(c) the decision to buy the goods could not have been

influenced by the public statement.

(4)

In the case of goods with digital elements, the seller shall

ensure that the consumer is informed of and supplied with updates,

including security updates, that are necessary to keep those goods in

conformity, for the period of time

(a) that the consumer may reasonably expect given the

type and purpose of the goods and the digital elements,

and taking into account the circumstances and nature

of the contract, where the sales contract provides for a

single act of supply of the digital content or digital

service; or

(b) indicated in the proviso of article 78(1) where the

sales contract provides for a continuous supply of the

digital content or digital service over a period of time.

(5)

Where the consumer fails to install within a reasonable time

updates supplied in accordance with sub-article (4), the seller shall not

be liable for any lack of conformity resulting solely from the lack of

the relevant update, provided that

(a) the seller informed the consumer about the availability

of the update and the consequences of the failure of the

consumer to install it; and

(b) the failure of the consumer to install or the incorrect

installation by the consumer of the update was not due

to shortcomings in the installation instructions

provided to the consumer.

(6)

There shall be no lack of conformity within the meaning of

sub-article (2) or (4) if, at the time of the conclusion of the sales

contract the consumer was specifically informed that a particular

characteristic of the goods was deviating from the objective

requirements for conformity laid down in sub-article (2) or (4) and the

consumer expressly and separately accepted that deviation when

concluding the sales contract.

(7)

Any lack of conformity resulting from the incorrect

installation of the goods shall be regarded as lack of conformity of the

goods if

(a) the installation forms part of the sales contract and was

carried out by the seller or under the seller's

responsibility; or

(b) the installation, intended to be carried out by the

consumer, was done by the consumer and the incorrect

installation was due to shortcomings in the installation

instructions provided by the seller or, in the case of

goods with digital elements, provided by the seller or

by the supplier of the digital content or digital service.

(8)

Nothing in this article shall prejudice the application of

article 73A.

Where a restriction resulting from a violation of any right

of a third party, in particular intellectual property rights, prevents, or

limits the use of the goods in accordance with sub-articles (1) to (6) of

article 73, the consumer is entitled to the remedies established for lack

of conformity in article 74(1), (2), (3), (4), in article 75(1) and in

article 76(2), unless the law provides for the nullity or rescission of the

sales contract in such cases.

(1)

In the event of a lack of conformity, the consumer

shall be entitled to have the goods brought into conformity or to

receive a proportionate reduction in the price, or to terminate the

contract, under the conditions set out in this article and in article 75.

(2)

The seller may refuse to bring the goods into conformity if

repair and replacement are impossible or would impose costs on the

seller that would be disproportionate, taking into account all

circumstances including those mentioned in paragraphs (a) and (b) of

sub-article (1) of article 75.

(3)

The consumer shall be entitled to either a proportionate

reduction of the price in accordance with article 76(1) or the

termination of the sales contract in accordance with article 78A in any

of the following cases

(a) the seller has not completed repair or replacement or,

where applicable, has not completed repair or

replacement in accordance with article 75(3) and (4),

or the seller has refused to bring the goods into

conformity in accordance with sub-article (4);

(b) a lack of conformity appears despite the seller having

attempted to bring the goods into conformity;

(c) the lack of conformity is of such a serious nature as to

justify an immediate price reduction or termination of

the sales contract; or

(d) the seller has declared, or it is clear from the

circumstances, that the seller will not bring the goods

into conformity within a reasonable time, or without

significant inconvenience for the consumer.

(4)

The consumer shall have the right to withhold payment of

any outstanding part of the price or a part thereof until the seller has

fulfilled the seller's obligations under this Part.

(1)

In order to have the goods brought into conformity,

the consumer may choose between repair and replacement, unless the

remedy chosen would be impossible or, compared to the other remedy,

would impose costs on the seller that would be disproportionate,

taking into account all circumstances, including

(a) the value the goods would have if there were no lack

of conformity;

(b) the significance of the lack of conformity; and

(c) whether the alternative remedy could be provided

without significant inconvenience to the consumer.

(2)

Repairs or replacements shall be carried out

(a) free of charge;

(b) within a reasonable period of time from the moment

the seller has been informed by the consumer about the

lack of conformity; and

(c) without any significant inconvenience to the

consumer, taking into account the nature of the goods

and the purpose for which the consumer required the

goods.

(3)

Where the lack of conformity is to be remedied by repair or

replacement of the goods, the consumer shall make the goods available

to the seller. The seller shall take back the replaced goods at the

seller’s expense.

(4)

Where a repair requires the removal of goods that had been

installed in a manner consistent with their nature and purpose before

the lack of conformity became apparent, or where such goods are to be

replaced, the obligation to repair or replace the goods shall include the

removal of the non-conforming goods, and the installation of

replacement goods or repaired goods, or bearing the costs of that

removal and installation.

(5)

The consumer shall not be liable to pay for normal use made

of the replaced goods during the period prior to their replacement.

(1)

The reduction of price shall be proportionate to the

decrease in the value of the goods which were received by the

consumer compared to the value the goods would have if they were in

conformity.

(2)

The consumer shall not be entitled to terminate the contract

if the lack of conformity is only minor. The burden of proof with

regard to whether the lack of conformity is minor shall be on the seller.

Where the seller is liable to the consumer because of a lack

of conformity resulting from an act or omission, including omitting to

provide updates to goods with digital elements in accordance with

article 73(4), by a person in previous links of the chain of transactions,

the final seller shall be entitled to pursue remedies against the person

or persons liable in the chain of transactions.

(1)

The seller shall be liable to the consumer for any lack

of conformity which exists at the time when the goods were delivered

and which becomes apparent within two years of that time. Without

prejudice to article 73(4), this sub-article shall also apply to goods

with digital elements

Provided that in the case of goods with digital elements,

where the sales contract provides for a continuous supply of the digital

content or digital service over a period of time, the seller shall also be

liable for any lack of conformity of the digital content or digital

service that occurs or becomes apparent within two years of the time

when the goods with digital elements were delivered. Where the

contract provides for a continuous supply for more than two years, the

seller shall be liable for any lack of conformity of the digital content or

digital service that occurs or becomes apparent within the period of

time during which the digital content or digital service is to be

supplied under the sales contract.

(2)

The two-year period mentioned in sub-article (1) shall be

suspended for the duration of negotiations carried on between the

seller and the consumer with a view to an amicable settlement.

(1) The consumer shall exercise the right to terminate the

sales contract by means of a statement to the seller expressing the

decision to terminate the sales contract

Provided that where the lack of conformity relates to only

some of the goods delivered under the sales contract and there is a

ground for termination of the sales contract pursuant to article 74, the

consumer may terminate the sales contract only in relation to those

goods, and in relation to any other goods which the consumer acquired

together with the non-conforming goods if the consumer cannot

reasonably be expected to accept to keep only the conforming goods.

(2)

Where the consumer terminates a sales contract as a whole

or, in accordance with the proviso in the preceding sub-article, in

relation to some of the goods delivered under the sales contract

(a) the consumer shall return to the seller, at the seller’s

expense, the goods; and

(b) the seller shall reimburse to the consumer the price

paid for the goods upon receipt of the goods or of

evidence provided by the consumer of having sent

back the goods.

In order to benefit from the remedies available under this

Part, a consumer shall notify the seller on a durable medium of any

lack of conformity within a period of at least two months from the date

on which the consumer detected such lack of conformity.

(1)

Any lack of conformity which becomes apparent

within one year of the time when the goods were delivered shall be

presumed to have existed at the time when the goods were delivered,

unless proved otherwise or unless this presumption is incompatible

with the nature of the goods or with the nature of the lack of

conformity. This sub-article shall also apply to goods with digital

elements.

(2)

In the case of goods with digital elements where the contract

of sale provides for the continuous supply of the digital content or

digital service over a period of time, the burden of proof with regard to

whether the digital content or digital service was in conformity within

the period of time referred to in the proviso of article 78(1) shall be on

the seller for a lack of conformity which becomes apparent within the

period of time referred to in that article.

Unless otherwise provided for in this Part, any contractual

agreement which, to the detriment of the consumer, excludes the

application of this Part, derogates from them, or varies their effect,

before the lack of conformity of the goods is brought to the seller’s

attention by the consumer, shall not be binding on the consumer.

A commercial guarantee is an additional guarantee which

places the beneficiary of such a guarantee in a more advantageous

position than that established at law. A commercial guarantee shall

not adversely affect other available remedies under any other law

governing contractual or delictual liability.

(1)

A commercial guarantee statement shall be provided

to the consumer on a durable medium at the latest at the time of the

delivery of the goods. The commercial guarantee statement shall be

expressed in plain, intelligible language and it shall include the

following

(a) be formulated in at least one of the official languages

of Malta;

(b) specify the name and address of the guarantor, and

clearly state the permanent address of the place of

trade or business and the name of the person who is

supplying the consumer with the commercial

guarantee;

(c) clearly state the contents of the guarantee including its

territorial scope if this is limited as well as the

duration of the guarantee from the date of purchase

and different periods may be stipulated for different

components of any goods;

(d) clearly specify the procedure to be followed by the

consumer to obtain the implementation of the

commercial guarantee. If a person who, in supplying a

commercial guarantee, fails to provide the consumer

with the information required under this paragraph, he

shall then be responsible for the execution of the

commercial guarantee at his expense;

(e) clearly state whether the commercial guarantee may be

transferred to others. Unless otherwise stipulated the

commercial guarantee may also be availed of by any

subsequent owners of the goods to which the

commercial guarantee refers

Provided that unless the commercial guarantee

specifically states otherwise, it shall be assumed that

in the case of goods, the commercial guarantee covers

any defects that may result during the period of

guarantee;

(f)

the designation of the goods to which the commercial

guarantee applies;

(g) a clear statement that the consumer is entitled by law

to remedies from the seller free of charge in the event

of a lack of conformity of the goods and that those

remedies are not affected by the commercial

guarantee; and

(h) the terms of the commercial guarantee.

(2)

Non-compliance with sub-article (1) shall not affect the

binding nature of the commercial guarantee for the guarantor.

Where a seller or any other person gives a commercial

guarantee to a consumer, irrespective of when or how it is given, then

that seller or other person shall be liable to the consumer for the

observance of the terms and execution of the commercial guarantee as

if he were the guarantor.

A commercial guarantee and any rights granted to a

consumer under the guarantee shall not in any way, whether

directly or indirectly, exclude or limit the rights of a consumer

under this Act or under any other law. Any such exclusion or

limitation stipulated in violation of this prohibition shall be null

and ineffective.

A guarantor may not, when performing or executing a

commercial guarantee, request a consumer to pay any fee or any

charge however designated, unless this had been expressly and

clearly stipulated in the commercial guarantee.

The guarantor shall assume the cost of any carriage

incurred in respect of the performance of a commercial guarantee

unless otherwise stipulated in the commercial guarantee.

The duration of a commercial guarantee shall be

automatically extended for a period equal to the time during which

the guarantor had the goods or part of the goods in his possession in

order to perform or execute the commercial guarantee or as a result

of the recall of the goods or part thereof by the manufacturer.

The designation by the guarantor of a third person to

execute a commercial guarantee does not free the guarantor from

the obligation towards the consumer pursuant to the commercial

guarantee given to the consumer.

Any commercial guarantee shall be binding on the guarantor

under the conditions laid down in the commercial guarantee statement

and associated advertising available at the time, or before the

conclusion, of the contract. Under the conditions laid down in this

article and without prejudice to any other applicable law, where a

producer offers to the consumer a commercial guarantee of durability

for certain goods for a certain period of time, the producer shall be

liable directly to the consumer, during the entire period of the

commercial guarantee of durability for repair or replacement of the

goods in accordance with article 75(2) to (5). The producer may offer

to the consumer more favourable conditions in the commercial

guarantee of durability statement

Provided that if the conditions laid out in the commercial

guarantee statement are less advantageous to the consumer than those

laid down in the associated advertising, the commercial guarantee

shall be binding under the conditions laid down in the advertising

relating to the commercial guarantee, unless, before the conclusion of

the contract, the associated advertising was corrected in the same way

or in a comparable way to that in which it was made.

(1) Without prejudice to any other remedies at law, a

consumer may institute civil proceedings against a guarantor who

fails to observe any of the terms or undertakings stipulated in a

commercial guarantee.

(2) The court may in any civil proceedings instituted under this

Part -

(a) order the guarantor to take such remedial action as

may be necessary to observe the terms of the

guarantee, or

(b) order the guarantor to perform his obligations under

the commercial guarantee to its satisfaction within

such period as the court may establish. In doing so the

court may order the guarantor to pay to the consumer a

sum not exceeding one hundred and twenty euro

(€120) for each day of default in case of non-

compliance after the lapse of the period established by

the court.

The provisions of this Part where they are more favourable

to the consumer, shall prevail over the provisions of any other law.

If the goods being the object of a sales contract to a consumer

are of a nature that may require maintenance, or possible replacement

of parts, then replacement parts and appropriate repair service must be

made available for a reasonable time from the date of the delivery of

the goods by the seller to the consumer.

Deleted by: -Act I.2022.19.

The purpose of this Part is to implement the provisions of

Directive (EU) 2019/771 of the European Parliament and of the

Council of 20 May 2019 on certain aspects concerning contracts for

the sale of goods, amending Regulation (EU) 2017/2394 and Directive

2009/22/EC, and repealing Directive 1999/44/EC (Text with EEA

relevance) and the provisions of this Part shall be applied and

interpreted accordingly.

Contracts concluded before the 1 January 2022 shall be

regulated by the provisions of this Part as in force prior to the entry

into force of the Consumer Affairs (Amendment) Act, 2022.

PART XI

Compliance orders

CONSUMER AFFAIRS

Deleted by XVI.2019.21.

Issue of

compliance orders.

Added by

XXVI. 2000.15.

Amended by

II. 2008.41;

VI. 2011.75;

VI. 2011.101.

Deleted by XVI.2019.21.

Discretion of

Director General to

issue a compliance

order.

Added by

XXVI. 2000.15.

Amended by

II. 2008.42;

VI. 2011.75, 102.

Compliance order

Deleted by XVI.2019.21.

to take immediate

effect.

Added by

XXVI. 2000.15.

Deleted by XVI.2019.21.

Application for

revocation of a

compliance order.

Added by

XXVI. 2000.15.

Amended by

II. 2008.43;

VI. 2011.75, 103.

Cases to be heard

Deleted by XVI.2019.21.

and determined

with urgency.

Added by

XXVI. 2000.15.

Substituted by

II. 2008.44.

Amended by

VI. 2011.104.

No need to prove

Deleted by XVI.2019.21.

actual loss, etc.

Added by

XXVI. 2000.15.

Amended by

VI. 2011.75.

Deleted by XVI.2019.21.

Director General to

seek voluntary

compliance.

Added by

XXVI. 2000.15.

Amended by

VI. 2011.75.

Deleted by XVI.2019.21.

Director General

may require

publication.

Added by

XXVI. 2000.15.

Substituted by

II. 2008.45.

Amended by

VI. 2011.75.

PART XII

Added by

XXVI. 2000.15.

Amended by

Investigative powers

II. 2008.25.

Substituted by

XVI.2019.22.

(1) The Director General may in writing authorise a

public officer, or with the consent of the Minister, any other person

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

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

Act. Any such officer or person shall, when required, produce the

written authorisation signed by the Director General.

(2) Where there is an exchange of officials from competent

authorities in terms of the Consumer Protection Co-operation

Regulation, the Director General may in writing authorise such

officials to perform, in full or in part, any of the functions or

exercise any of the powers granted to him under this Part.

(1)For the purpose of discharging his functions under this

Act, without prejudice to the provisions of the Professional Secrecy

Act, and to the provisions of article 104 (2) of this Act, the Director

General may

(a) enter and search any premises, land or means of

transport that the trader concerned by the inspection

uses for purposes related to his trade, business, craft or

profession, or to request other public authorities to do

so, in order to examine, seize, take or obtain copies of

information, data or documents, irrespective of their

storage medium

Provided that the power to enter and search premises

used exclusively as a place of residence shall only be

exercised when duly authorised by a warrant issued by

a Magistrate;

(b) make any inspection, conduct any test and on paying

or making tender therefor, take any goods;

(c) seize any books, records, information, data or

documents however kept or stored for a necessary

period and to the extent necessary for the inspection;

(d) request any representative or member of the staff of

the trader concerned by the inspection to give

explanations of facts, books, records, information, data

or documents relating to the subject matter of the

inspection and to record the answers;

(e) purchase goods or services as test purchases, where

necessary, under a cover identity, in order to detect

infringements covered by this Act and to obtain

evidence, including the power to inspect, observe,

study, disassemble or test goods or services

Provided that the Director General shall give to

the person from whom anything has been taken, a

receipt for what has been taken

Provided further that no entry and search shall be

effected between seven in the evening and seven in the

morning, unless the Director General has reason to

believe that delay could cause the loss of necessary

information, and in such circumstances, the entry and

search shall only be exercised when duly authorised by

a warrant issued by a Magistrate.

(2) Nothing in this Part shall be deemed to detract from the

powers of the Police under the Criminal Code or any other law.

(3) In the course of any entry and search under this Part, the

Director General may request the assistance of the Police.

(1)

The Director General may, for the purpose of

discharging his functions under this Act, require any natural person or

legal person to provide any information in any manner, including

(a) by answering any questions, orally or in writing; or

(b) by producing any relevant documents, data or

information related to an infringement covered by this

Act or any Regulations made thereunder, in any form

or format and irrespective of their storage medium, or

the place where they are stored as the Director General

may consider to be necessary

Provided that the Director General may also

require any public authority, body or agency or any

natural person or legal person to provide any relevant

information, data or documents, in any form or format

and irrespective of their storage medium, or the place

where they are stored, for the purposes of establishing

whether an infringement covered by this Act or any

Regulations made thereunder has occurred or is

occurring, and for the purposes of establishing the

details of such infringement, including tracing

financial and data flows, ascertaining the identity of

persons involved in financial and data flows, and

ascertaining bank account information and ownership

of websites.

(2) A person shall not be required to answer any question if the

answer may subject him to criminal proceedings.

(1) Notwithstanding anything contained in this Act, the

Director General may, in order to carry out his function as

competent authority under the Consumer Protection Co-operation

Regulation, request, receive, disclose and exchange information in

matters of mutual assistance with other competent authorities in

terms of the Consumer Protection Co-operation Regulation and the

Data Protection Act.

(2) Notwithstanding the provisions of any other law, the

Director General may produce as evidence before any court or

tribunal any such information, including documents, findings,

statements, certified true copies or intelligence received from

competent authorities in terms of sub-article (1).

Any person who -

(a) wilfully obstructs, assaults, threatens, resists or

interferes with the Director General or a public officer

or an authorised person in the exercise of his duties

under this Part, or attempts so to do; or

(b) uses threatening, abusive or insulting language to the

Director General or a public officer or an authorised

person in the course of his duties under this Part; or

(c)

provides false or misleading information,

shall on conviction be guilty of an offence against this Act.

PART XIIA

Offences, Penalties and related provisions

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).

(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

Provided that the Civil Court shall, when determining

penalties with regard to infringements of this Act or any regulations

made thereunder, where appropriate take into account the following

non-exhaustive and indicative criteria, unless a different criteria is

prescribed for specific regulations

(a)

the nature, gravity, scale and duration of the

infringement;

(b)

any action taken by the seller, trader or supplier to

mitigate or remedy the damage suffered by consumers;

(c)

any previous infringements by the seller, trader or

supplier;

(d)

the financial benefits gained or losses avoided by

the seller, trader or supplier due to the infringement, if the

relevant data are available;

(e)

penalties imposed on the seller, trader or supplier

for the same infringement in other Member States in cross-

border cases where information about such penalties is

available through the mechanism established by the Consumer

Protection Co-operation Regulation;

(f)

any other aggravating or mitigating factors

applicable to the circumstances of the case

Provided further that for infringements to Part VII and Part

VIII of this Act, and the Consumer Rights Regulations, when penalties

are to be imposed in accordance with Article 21 of the Consumer

Protection Co-operation Regulation, the Civil Court shall impose a

penalty up to a maximum of four percent (4%) of the seller’s, trader's

or supplier’s annual turnover in the Member State or Member States

concerned

Provided further that where a penalty is imposed in

accordance with the preceding proviso, but information on the seller’s,

trader's or supplier’s annual turnover is not available, the Civil Court

shall impose a penalty up to a maximum of two million euro (€2

million).

Deleted by XVI.2019.21.

Deleted by XVI.2019.21.

Repealed by Act XVII.2023.33.

CONSUMER AFFAIRS

Deleted by XVI.2019.21.

Prescription for

offences and

administrative

infringements.

Added by

XXVI. 2000.15.

Substituted by

II. 2008.51.

Deleted by XVI.2019.21.

Exemption from

liability.

Added by

XXVI. 2000.15.

Amended by

II. 2008.52.

Substituted by

VI. 2011.107.

(Deleted by Act VI.2011.108)

Service of orders

or notices under

this Act.

Added by

XXVI. 2000.15.

Amended by

II. 2008.53.

(Deleted by Act VI.2011.110)

Consumer Affairs

Appeals Board.

Added by

II. 2008.54.

Deleted by XVI.2019.21.

Appeal from

decisions or orders

other than the

imposition of an

administrative fine

of the Director

General.

Added by

II. 2008.54.

Amended by

VI. 2011.75, 111.

Deleted by XVI.2019.21.

Appeals against an

administrative fine

imposed by the

Director General.

Added by

II. 2008.54.

Amended by

VI. 2011.75, 112.

Deleted by XVI.2019.21.

Decisions of the

Appeals Tribunal.

Added by

II. 2008.54.

Amended by

VI. 2011.113.

Deleted by XVI.2019.21.

Procedure of the

Appeals Tribunal.

Added by

II. 2008.54.

Amended by

VI. 2011.75, 114.

Deleted by XVI.2019.21.

Appeal to the

Court of Appeal.

Added by

II. 2008.54.

Amended by

VI. 2011.75, 115.

Deleted by XVI.2019.21.

Deleted by XVI.2019.21.

PART XIII

Miscellaneous

The Prime Minister may, by order in the Gazette, direct that

the provisions of articles 10, 12, 12A and Parts IIA, IIB, XII and XIIA

shall apply to offences and, or infringements under any other law

administered by the 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.

Participants, other than those who establish, 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.

No action shall lie against the Director 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.

The institution of judicial proceedings and the prosecution of

an offence under this Act or any regulations made thereunder, unless a

different term is prescribed therefor, 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

Provided that this prescription period, with regard to the

institution of judicial proceedings concerning infringements under this

Act or any regulations made thereunder, shall be interrupted by

(a)

the notification of the person concerned of the

initiation of investigations in accordance with article 12(2);

(b)

any entry and search and, or any inspection, made

during an investigation in accordance with article 103;

(c)

any notifications of requests for information

made during an investigation in accordance with article 104;

and

(d)

by the notification of the invitation by the

Director General to engage in commitments discussions in

accordance with article 12A

Provided further that the said prescription period relative to

the prosecution of an offence under this Act or any regulations made

thereunder, shall be interrupted according to the provisions of the

Criminal Code

Provided further that the said prescription period shall start

to run again from each interruption.

No precautionary warrant or other 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.

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CONSUMER AFFAIRS