MT
COMPETITION ACT
Table of Provisions (54)
Statutory Text (54 Articles)
COMPETITION
CHAPTER 379
COMPETITION ACT
To regulate competition, enable the application of Council Regulation
(EC) 1/2003 and provide for fair trading in Malta.
1st February, 1995
ACT XXXI of 1994, as amended by Acts XXVIII of 2000, IV of 2003 and
III of 2004; Legal Notice 425 of 2007; and Acts VI of 2011, VI of 2012,
XXV of 2017, XVI of 2019 and XLV of 2021.
The short title of this Act is the Competition Act.
(Article 27A)
COMPETITION LAW INFRINGEMENTS
(ACTIONS FOR DAMAGES)
REGULATIONS
1. (1)The title of these regulations is the Competition Law
Infringements (Actions for Damages) Regulations.
(2) Subject to the provisions of article 27A of the Act, the
provisions of these regulations shall be deemed to have come into
force on the 27th December 2014.
2. These regulations implement the provisions of Directive
2014/104/EU of the European Parliament and of the Council of 26
November 2014 on certain rules governing actions for damages
under national law for infringements of the competition law
provisions of the Member States and of the European Union.
3. In these regulations, unless the context otherwise requires -
"Act" means the Competition Act;
"action for damages" means an action pursuant to these
regulations by which a claim for damages is brought before a
national court by an alleged injured party, or by someone acting on
behalf of one or more alleged injured parties, or by a natural or
legal person that succeeded in the right of the alleged injured party,
including the person that acquired the claim;
"cartel" means an agreement or concerted practice between two
or more competitors aimed at coordinating their competitive
behaviour on the market or influencing the relevant parameters of
competition through practices such as, but not limited to, the fixing
or coordination of purchase or selling prices or other trading
conditions, including, in relation to intellectual property rights, the
allocation of production or sales quotas, the sharing of markets and
customers, including bid-rigging, restrictions of imports or exports
or anti-competitive actions against other competitors;
"claim for damages" means a claim for compensation for harm
caused by an infringement of competition law;
"competition authority" means the European Commission or any
national competition authority, as the context may require;
"competition law" means Articles 101 and 102 TFEU and, or
articles 5 and 9 of the Act or the provisions of national law that
predominantly pursue the same objectives as Articles 101 and 102
TFEU and that are applied to the same case and in parallel to Union
competition law pursuant to Article 3(1) of Council Regulation No.
1/2003, excluding provisions of national law which impose
criminal penalties on natural persons, except to the extent that such
criminal penalties are the means whereby competition rules
applying to undertakings are enforced, as may be applicable in a
particular case;
"consensual dispute resolution" means any mechanism enabling
parties to reach the out-of-court resolution of a dispute concerning
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a claim for damages;
"consensual settlement" means an agreement reached through
consensual dispute resolution;
"court" means a court of civil jurisdiction in Malta as established
under the Code of Organization and Civil Procedure or any tribunal
having jurisdiction in competition matters established under any
special law;
"direct purchaser" means a natural or legal person who acquired,
directly from an infringer, products or services that were the object
of an infringement of competition law;
"evidence" means all types of means of proof admissible before
the court, in particular documents and all other objects containing
information, irrespective of the medium on which the information
is stored;
"final infringement decision" means an infringement decision
that cannot be, or that can no longer be, appealed and which has
accordingly become a res judicata;
"infringement decision" means a decision of a competition
authority or a national court that finds an infringement of
competition law;
"infringement of competition law" means an infringement of
Article 101 or 102 TFEU and, or of article 5 or 9 of the Act or any
equivalent provision of the national law of another Member State;
"infringer" means an undertaking or association of undertakings
which has committed an infringement of competition law;
"immunity recipient" means an undertaking which, or a natural
person who, has been granted immunity from penalties by a
competition authority under a leniency programme;
"indirect purchaser" means a natural or legal person who
acquired, not directly from an infringer, but from a direct purchaser
or a subsequent purchaser, products or services that were the object
of an infringement of competition law, or products or services
containing them or derived therefrom;
"injured party" means a person that has suffered harm caused by
an infringement of competition law;
"leniency programme" means a programme concerning the
application of Article 101 TFEU or article 5 of the Act, or
equivalent provisions of another Member State, on the basis of
which a participant in a secret cartel, independently of the other
undertakings involved in the cartel, cooperates with an
investigation of the competition authority, by voluntarily providing
presentations regarding that participant’s knowledge of, and role
in, the cartel in return for which that participant receives, by
decision or by a discontinuation of proceedings, immunity from, or
a reduction in, penalties for its involvement in the cartel;
"leniency statement" means an oral or written presentation
voluntarily provided by, or on behalf of, an undertaking or a natural
person to a competition authority or a record thereof, describing the
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knowledge of that undertaking or natural person of a cartel and
describing its role therein, which presentation was drawn up
specifically for submission to the competition authority with a view
to obtaining immunity or a reduction of penalties under a leniency
programme, not including pre-existing information;
"national competition authority" means an authority designated
by a Member State pursuant to Article 35 of Regulation (EC) No. 1/
2003, as being responsible for the application of Articles 101 and
102 TFEU;
"national court" means a court or tribunal of a Member State
within the meaning of Article 267 TFEU;
"overcharge" means the difference between the price actually
paid and the price that would otherwise have prevailed in the
absence of an infringement of competition law;
"pre-existing information" means evidence that exists
irrespective of the proceedings of a competition authority, whether
or not such information is in the file of a competition authority;
"review court" means a national court that is empowered by
ordinary means of appeal to review decisions of a national
competition authority or to review judgements pronouncing on
those decisions, irrespective of whether that court itself has the
power to find an infringement of competition law;
"settlement submission" means a voluntary presentation by, or on
behalf of, an undertaking to a competition authority describing the
undertaking's acknowledgement of, or its renunciation to a dispute,
its participation in an infringement of competition law and its
responsibility for that infringement of competition law, which was
drawn up specifically to enable the competition authority to apply a
simplified or expedited procedure;
"TFEU" means the Treaty on the Functioning of the European
Union.
4. (1)Any natural or legal person who has suffered damage
caused by an infringement of competition law shall be entitled to
claim and to obtain full compensation for that damage, which
action shall be instituted in accordance with the provisions of the
Code of Organization and Civil Procedure, or as may be provided
in any other special legislation.
(2) For the purposes of these regulations, a person shall be
deemed to have suffered damage even where that person is not the
immediate customer or provider of the defendant.
(3) Full compensation shall place a person who has suffered
harm in the position in which that person would have been had the
infringement of competition law not been committed. It shall
therefore cover the right to compensation for actual loss and for
loss of profit as well as the payment of interest from the time the
damage occurred until the capital sum awarded is actually paid
Provided that full compensation under these regulations
shall not lead to over-compensation, whether by means of punitive,
multiple or other types of damages.
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5. (1)In proceedings relating to an action for damages
pursuant to regulation 4, the claimant shall present a reasoned
justification containing reasonably available facts and evidence
sufficient to support the plausibility of the claim for damages.
(2) The court shall have the power, upon request of the
claimant, to order the disclosure of relevant evidence by the
defendant or a third party, where such evidence lies in their control,
in accordance with the provisions of the Code of Organization and
Civil Procedure, or as may be provided in any other special
legislation, subject to the conditions set out in these regulations. It
shall also have the power, upon request of the defendant, to order
the claimant or a third party to disclose relevant evidence. This
sub-regulation is without prejudice to the rights and obligations of
the court under Council Regulation (EC) No. 1206/2001
Provided that the court may, where it so deems appropriate
in the circumstances, order the disclosure of specified items of
evidence or relevant categories of evidence circumscribed as
precisely and as narrowly as possible on the basis of reasonably
available facts in the reasoned justification presented by the
claimant.
(3) The court shall limit the disclosure of evidence to that
which is proportionate. In determining whether any disclosure
requested by a party is proportionate, the court shall consider the
legitimate interests of all parties and third parties concerned and it
shall, in particular, consider
(a) the extent to which the claim or defence is supported
by available facts and evidence justifying the request
to disclose evidence;
(b) the scope and cost of disclosure, especially for any
third parties concerned, including preventing non-
specific searches for information which is unlikely to
be of relevance for the parties in the procedure;
(c) whether the evidence the disclosure of which is sought
contains
confidential
information,
especially
concerning any third parties, and what arrangements
are in place for protecting such confidential
information.
(4) The court shall have the power to order the disclosure of
evidence containing confidential information where it considers it
relevant to the action for damages. When ordering the disclosure of
such information the court shall adopt any effective measures,
pursuant to the provisions of the Code of Organization and Civil
Procedure, or to the provisions of any other special legislation,
which it deems necessary or appropriate in the circumstances to
protect such information in accordance with the applicable
legislation
Provided that this sub-regulation shall be without prejudice
to the applicability of the duty of professional secrecy pursuant to
the provisions of the Professional Secrecy Act, the Data Protection
Act, the Official Secrets Act and any other professional secret as
classified under the law of any Member State or of the European
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Union.
(5) The interest of undertakings to avoid actions for damages
following an infringement of competition law shall not constitute
an interest capable of protection.
(6) Prior to ordering the disclosure of any evidence the court
shall give that person the opportunity to present any submissions or
objections concerning such disclosure.
(7) Without prejudice to sub-regulations (4) and (6) and to
regulation 6, this regulation shall not prejudice the applicability of
any provision of the Code of Organization and Civil Procedure, or
of any other applicable legislation, which would lead to wider
disclosure of evidence.
6. (1)For the purpose of actions for damages pursuant to these
regulations, the court shall have the power to order the disclosure
of evidence included in the file of a competition authority, as the
case may be, subject to the conditions set forth hereunder. In such
cases, the provisions of regulation 5 shall apply in addition to this
regulation.
(2) This regulation is without prejudice to the rules and
practices on public access to documents pursuant to Regulation
(EC) No. 1049/2001, and to the rules and practices under the laws
of Malta or the European Union on the protection of internal
documents of national competition authorities and of
correspondence between competition authorities.
(3) When assessing, in accordance with regulation 5(3), the
proportionality of an order to disclose information, the court shall,
in addition, consider the following
(a) whether the request has been formulated specifically
with regard to the nature, subject matter or contents of
documents submitted to a competition authority or
held in the file thereof, rather than by a non-specific
application concerning documents submitted to a
competition authority;
(b) whether the party requesting disclosure is doing so in
relation to an action for damages pending before it;
and
(c) in relation to sub-regulations (4) and (9), or upon
request of a competition authority pursuant to sub-
regulation (10), the need to safeguard the effectiveness
of the public enforcement of competition law.
(4) The court may order the disclosure of the following
categories of evidence only after a competition authority, by
adopting a decision or otherwise, has closed its proceedings
(a) information that was prepared by a natural or legal
person specifically for the proceedings of that
competition authority;
(b) information that the competition authority has drawn
up and sent to the parties in the course of its
proceedings; and
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(c) settlement submissions that have been withdrawn.
(5) The following categories of evidence cannot, in an action
for damages, at any time, be the subject of an order for disclosure
(a) leniency statements; and
(b) settlement submissions.
(6) A claimant may present a reasoned request that the court
access the evidence referred to in paragraphs (a) or (b) of sub-
regulation (5) for the sole purpose of ensuring that their contents
correspond to the definitions of "leniency statement" or "settlement
submission", as the case may be, in regulation 3. In making that
assessment, the court may request assistance exclusively from the
competent competition authority
Provided that, in cases referred to in this sub-regulation, the
authors of the evidence in question shall also have the possibility to
be heard
Provided further that in no case shall the court permit other
parties or third parties to access the evidence in question.
(7) If only parts of the evidence requested are covered by sub-
regulation (5), the remaining parts thereof shall, depending on the
category under which they fall, be released in accordance with the
relevant provisions of this regulation.
(8) The disclosure of evidence in the file of a competition
authority that does not fall into any of the categories listed in this
regulation may be ordered in actions for damages at any time,
without prejudice to the provisions of this regulation.
(9) The court shall only request the disclosure of evidence
included in the file of a competition authority where no party or
third party is reasonably able to provide that evidence.
(10) To the extent that a competition authority is willing to state
its views on the proportionality of a request for disclosure, it may,
acting on its own initiative, submit observations to the court before
which that disclosure order is sought.
7. (1)Any evidence in the categories listed in regulation 6(5),
which is obtained by a natural or legal person solely through access
to the file of a competition authority, shall be deemed inadmissible
in actions for damages pursuant to these regulations.
(2) Until the competent competition authority has closed its
proceedings by adopting a decision or otherwise, evidence in the
categories listed in regulation 6(4), which is obtained by a natural
or legal person solely through access to the file of that competition
authority, shall also be deemed inadmissible in actions for damages
pursuant to these regulations.
(3) Any evidence which is obtained by a natural or legal person
solely through access to the file of a competition authority, and
which does not fall under sub-regulation (1) or (2), can be used in
an action for damages only by that person or by a natural or legal
person that succeeded to that person’s rights, including a person
that acquired that person’s litigious right arising from the claim.
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8. (1)A court seized of an action for damages pursuant to these
regulations shall have the power to impose penalties on any party,
third party and, or their legal representatives in the event of any of
the following
(a) their failure or refusal to comply with a disclosure
order of the court;
(b) their destruction of relevant evidence;
(c) their failure or refusal to comply with the obligations
imposed by an order of the court protecting
confidential information;
(d) their breach of the limits on the use of evidence
provided for in these regulations
Provided that for the purposes of this sub-regulation, the
court may impose any measure envisaged in the Code of
O rg a n i z a t i o n a n d C i v i l P r o c e d u r e , o r i n a n y o t h e r s p e c i a l
legislation, which it deems appropriate in the circumstances. The
court shall ensure that any penalty so imposed is effective,
proportionate and dissuasive, having regard to the seriousness of
the offence.
(2) The penalties imposed pursuant to this regulation may also,
at the discretion of the court, include the following with regard to
the behaviour of a party to the proceedings
(a) the possibility to draw adverse inferences, such as
presuming the relevant issue to be proven or
dismissing claims and defences in whole or in part;
and
(b) the possibility to order the payment of costs.
(3) Penalties imposed by a Court in pursuance of the powers
conferred by this regulation shall, without prejudice to any other
liability under the Act or any other law, not exceed one hundred
thousand euro (€100,000) for every breach or default provided in
this regulation and a daily fine of ten thousand euro (€10,000) in
respect of each day during which the breach or default continues.
9. (1) An infringement of competition law found by a final
decision of the national competition authority, the Appeals
Tribunal or any Court of Appeal in terms of the Act and, or of the
European Commission, shall be deemed to be irrefutably
established for the purposes of an action for damages brought
pursuant to these regulations.
(2) Where a final decision is taken by a national competition
authority of another Member State, that final decision may be
presented before the court seized of an action for damages pursuant
to these regulations as prima facie evidence that an infringement of
competition law has occurred, and may, at the discretion of the
court, be assessed along with any other evidence adduced by the
parties.
(3) This regulation is without prejudice to the rights and
obligations of the court under Article 267 TFEU.
10. (1) Notwithstanding the provisions of the Civil Code or of
COMPETITION
any other law, an action for damages pursuant to these regulations
is prescribed by the lapse of five years.
(2) The period of prescription referred to in sub-regulation (1)
shall begin to run from the date when the infringement of
competition law has ceased and the claimant became aware, or can
reasonably be expected to have become aware
(a) of the behaviour and the fact that it constitutes an
infringement of competition law;
(b) of the fact that the infringement of competition law
caused harm to it; and
(c) the identity of the infringer.
(3) The period of prescription referred to in sub-regulation (1)
shall be suspended where a competition authority takes action for
the purpose of the investigation or its proceedings in respect of an
infringement of competition law to which the action for damages
relates. The suspension shall end one year after the infringement
decision has become res judicata or after the proceedings are
otherwise terminated.
11. (1) Undertakings which are found to have infringed
competition law through joint behaviour shall be jointly and
severally liable for the harm caused by the infringement, with the
effect that each of those undertakings is bound to compensate for
the harm caused in full, and the injured party has the right to
require full compensation from any of them until he has been fully
compensated.
(2) Notwithstanding the provisions of sub-regulation (1) but
without prejudice to the right of full compensation as laid down in
regulation 4, where the infringer is a small or medium-sized
enterprise (SME) as defined in Commission Recommendation
2003/361/EC, the infringer is liable only to its own direct and
indirect purchasers or providers where
(a) its market share in the relevant market was below 5%
at any time during the infringement of competition
law; and
(b) the application of the normal rules of joint and several
liability would irretrievably jeopardise its economic
viability and cause its assets to lose all their value.
(3) The exception laid down in sub-regulation (2) shall not
apply where
(a) the SME has led the infringement of competition law
or has coerced other undertakings to participate
therein; or
(b) the SME has previously been found to have infringed
competition law.
(4) Notwithstanding the provisions of sub-regulation (1), an
immunity recipient shall be jointly and severally liable as follows
COMPETITION
(a) to its direct or indirect purchasers or providers; and
(b) to other injured parties only where full compensation
cannot be obtained from the other undertakings that
were involved in the same infringement of competition
law.
(5) Actions under this regulation shall be prescribed by the
same period as in regulation 10.
(6) An infringer in terms of these regulations may, by a
separate action, recover a contribution from any other infringer, the
amount of which shall be determined in the light of their relative
responsibility for the harm caused by the infringement of
competition law. The amount of contribution of an infringer which
has been granted immunity from penalties under a leniency
programme shall not exceed the amount of the harm it caused to its
own direct or indirect purchasers or providers.
(7) To the extent that an infringement of competition law is
found to have caused harm to injured parties other than the direct or
indirect purchasers or providers of the infringers, the amount of any
contribution from an immunity recipient to other infringers shall be
determined in the light of its relative responsibility for that harm.
12. (1)In accordance with the provisions of these regulations,
any person who has suffered harm caused by an infringement of
competition law may claim compensation therefor, irrespective of
whether such claimant is a direct or indirect purchaser from the
infringer
Provided, however, that the compensation for actual loss
caused by the infringement of competition law to the claimant
which may be recovered in accordance with these regulations shall
not in any case exceed the overcharge harm suffered at the level of
the supply chain in which the claimant operates.
(2) These regulations shall be without prejudice to the right of
an injured party to claim and obtain compensation for loss of
profits due to a full or partial passing-on of the overcharge.
(3) In estimating the amount of harm suffered by the claimant
or the share of any overcharge that was passed on to the claimant,
the court may, without prejudice to the right of the parties to
produce ex parte expert witnesses, appoint one or more referees to
a s s i s t i t i n a c c o r d a n c e w i t h t h e pr o v i s i o n s o f t h e Co de of
Organization and Civil Procedure, or as may be provided in any
other special legislation. It shall take due account of any guidelines
issued by the European Commission in this regard.
(4) These regulations shall apply mutatis mutandis where the
infringement of competition law relates to a supply to the infringer.
13. (1)The defendant in an action for damages pursuant to these
regulations may raise as a defence the fact that the claimant passed
o n t h e w h o l e o r p a r t o f t h e o v e r c h a rg e r e s u l t i n g f r o m t h e
infringement of competition law.
(2)
The burden of proving that the overcharge was passed on
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shall be on the defendant, who may reasonably require disclosure
from the claimant or from third parties.
14. (1)Where in an action for damages the existence of a claim
for damages or the amount of compensation to be awarded depends
on whether, or to what degree, an overcharge was passed on to the
claimant, taking into account the commercial practice that price
increases are passed on down the supply chain, the burden of
proving the existence and scope of such a passing-on shall rest with
the claimant, who may reasonably require disclosure from the
defendant or from third parties.
(2) In the situation referred to in sub-regulation (1), the indirect
purchaser shall be deemed to have proven that a passing-on to that
indirect purchaser occurred where that indirect purchaser has
shown that
(a) the defendant has committed an infringement of
competition law;
(b) the infringement of competition law has resulted in an
overcharge for the direct purchaser of the defendant;
and
(c) the indirect purchaser has purchased the goods or
services that were the object of the infringement of
competition law, or has purchased goods or services
derived from or containing them.
(3) The provisions of sub-regulation (2) shall not apply where
the defendant can demonstrate credibly to the satisfaction of the
court that the overcharge was not, or was not entirely, passed on to
the indirect purchaser.
15. (1) With a view to avoiding that actions for damages by
claimants from different levels in the supply chain lead to a
multiple liability or to an absence of liability of the infringer, in
assessing whether the burden of proof resulting from the
application of regulations 13 and 14 is satisfied, the court may take
due account of any of the following
(a) actions for damages that are related to the same
infringement of competition law, but that are brought
by claimants from other levels in the supply chain;
(b) judgements resulting from actions for damages as
referred to in paragraph (a);
(c) relevant information in the public domain resulting
from the public enforcement of competition law.
(2) This regulation shall be without prejudice to the rights and
obligations of the court pursuant to Article 30 of Regulation (EU)
No. 1215/2012.
16. (1) The burden of proving claims regarding the extent of the
harm suffered shall rest on the claimant
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Provided that where it is established that the claimant
suffered harm, but it is impossible or excessively difficult to
quantify precisely the harm suffered on the basis of the evidence
available, the court may estimate the amount of harm including, in
particular, on the basis of arbitrio boni viri.
(2) It shall in any case be presumed that cartel infringements
cause harm
Provided that the infringer shall have the right to bring
forward evidence to rebut that presumption.
(3) A competition authority may, at the request of a court
seized of an action for damages pursuant to these regulations, assist
that court with respect to the determination of the quantum of
damages where the competition authority considers such assistance
to be appropriate.
(4) In establishing the quantum of damages the court shall take
into account the factual scenario that would have prevailed had the
infringement not taken place.
17. (1) The prescriptive period referred to in regulation 10 shall
be suspended for the duration of any consensual dispute resolution
process, exclusively with regard to those parties that are or that
were involved or represented in the consensual dispute resolution.
(2) Without prejudice to the provisions of the Arbitration Act,
the court seized of an action for damages pursuant to these
regulations may, as it deems fit in the circumstances, suspend its
proceedings for a period of no longer than two years where the
parties thereto are involved in consensual dispute resolution
concerning the claim covered by that action for damages.
(3) The national competition authority may consider
compensation paid as a result of a consensual settlement, and prior
to its decision imposing a penalty, to be a mitigating factor.
18. (1) Following a consensual settlement, the claim of the
settling injured party shall be reduced by the settling co-infringer’s
share of the harm that the infringement inflicted upon the injured
party.
(2) Any remaining claim of the settling injured party shall be
exercised only against non-settling co-infringers, who shall not be
permitted to recover contribution for the remaining claim from the
settling co-infringer
Provided, however, that where the non-settling co-
infringers cannot pay the damages that correspond to the remaining
claim of the settling injured party, the settling injured party may
exercise the remaining claim against the settling co-infringer,
unless such an option has been expressly excluded under the terms
of the consensual settlement.
(3) When determining the amount of contribution that a co-
infringer may recover from any other co-infringer in accordance
with their relative responsibility for the harm caused by the
infringement of competition law, the court shall take due account of
any damages paid pursuant to a prior consensual settlement
involving the relevant co-infringer.
In this Act unless the context otherwise requires -
"association of undertakings" means a body of persons (whether
incorporated or not) which is formed for the purpose of furthering
the trade interest of its members or of persons represented by its
members;
"Authority" means the Malta Competition and Consumer Affairs
Authority established by article 3 of the Malta 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;
"competition authority" means a national competition authority,
the European Commission or both, as the context may require;
"Court" means the Civil Court (Commercial Section) established
by article 3 of the Civil Courts (Establishment of Sections) Order;
"Director General" means the Director General (Competition) as
appointed by article 13 of the Malta Competition and Consumer
Affairs Authority Act;
"document" includes information recorded in any form;
"dominant position" means a position of economic strength held
by one or more undertakings which enables it or them to prevent
effective competition being maintained on the relevant market by
affording it or them the power to behave, to an appreciable extent,
independently of its or their competitors, suppliers or customers;
"European Commission" means the European Commission as
established by article 13 of the Treaty on European Union;
"European Competition Network" means the network of public
authorities formed by the national competition authorities and the
European Commission to provide a forum for discussion and co-
operation as regards the application and enforcement of Articles
101 and 102 of the TFEU;
"Member States" means all Member States of the European
Union;
"Minister" means the Minister responsible for competition
matters;
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"National Competition Authority" means a national competition
authority as designated in terms of Article 35(1) of Council
Regulation (EC) 1/2003 as being responsible for the application of
Articles 101 and 102 of the TFEU;
"Office" means the Office for Competition as established by
article 13 of the Malta Competition and Consumer Affairs
Authority Act;
"product" includes goods and the supply of services;
"qualified entity" shall have the same meaning assigned to it
under article 2 of the Consumer Affairs Act;
"relevant market" means the market for the product whether
within Malta or limited to any particular area or locality within
Malta, or outside Malta, and whether or not restricted to a
particular period of time or season of the year;
"restrictive practice" means an agreement between undertakings,
a decision by an association of undertakings or a concerted practice
prohibited under article 5 of this Act or Article 101 of the TFEU
and, or an abuse by one or more undertakings of a dominant
position prohibited under article 9 of this Act or Article 102 of the
TFEU;
"settlement submissions" means a voluntary presentation by, or
on behalf of, an undertaking and, or an association of undertakings
to the Office, describing the undertaking's and, or association of
undertakings’ acknowledgement of, or its renunciation to dispute,
its participation in an infringement of articles 5 and, or 9 of the Act
and, or Articles 101 or 102 of the TFEU and its responsibility for
that infringement, which was drawn up specifically to enable the
Office to apply a simplified or expedited procedure in terms of
article 12B of the Act
"TFEU" means the Treaty on the Functioning of the European
Union;
"total worldwide turnover" means the annual total worldwide
turnover of an undertaking and, or association of undertakings
concerned;
"undertaking" means any person whether an individual, a body
corporate or otherwise, or any other entity engaged in an economic
activity, regardless of its legal status and the way in which it is
financed.
The Director General and the Court shall have the
exclusive competence to apply the provisions of this Act and, for
this purpose, the Director General shall exercise the responsibilities
vested in the Office for Competition under article 14 of the Malta
Competition and Consumer Affairs Authority Act and under this
Act except where competences are assigned to the Court in this Act
and in the Malta Competition and Consumer Affairs Authority Act
Provided that the Director General may delegate any of his
powers to any officer within the Office.
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(Deleted by Act VI. 2011.123.).
(1) Subject to the provisions of this Act, the following is
prohibited, that is to say any agreement between undertakings, any
decision by an association of undertakings and any concerted
practice between undertakings having the object or effect of
preventing, restricting or distorting competition within Malta or
any part of Malta and in particular, but without prejudice to the
generality of this sub-article, any agreement, decision or practice
which
(a) directly or indirectly fixes the purchase or selling price
or other trading conditions; or
(b) limits or controls production, markets, technical
development or investment; or
(c) shares markets or sources of supply; or
(d) imposes the application of dissimilar conditions to
equivalent transactions with other parties outside such
agreement, thereby placing them at a competitive
disadvantage; or
(e) makes the conclusion of contracts subject to the
acceptance by the other parties of supplementary
obligations which, by their nature or according to
commercial usage, have no connection with the subject
of such contracts.
(2) Agreements or decisions prohibited in accordance with sub-
article (1) shall be ipso jure null and unenforceable.
(3)
The provisions of sub-article (1) shall not apply in the case
of -
(a) any agreement between undertakings; or
(b) any decision by an association of undertakings; or
(c) any concerted practice,
which contributes towards the objective of improving production or
distribution of goods or services or promoting technical or
economic progress and which allows consumers a fair share of the
resultant benefit and which does not
(i)
impose on undertakings concerned any
restriction which is not indispensable to the
attainment of the said objective; or
(ii) give the undertakings concerned the possibility
of eliminating or significantly reducing
competition in respect of a substantial part of the
products to which the agreement, decision or
concerted practice refers.
(4) The undertaking or association of undertakings claiming
the benefit of sub-article (3) shall bear the burden of proving that
the conditions of that sub-article are fulfilled.
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(5) Article 101 of the TFEU shall also apply where any
agreements between undertakings, any decision by an association
of undertakings or any concerted practice may appreciably affect
trade between Malta and any one or more Member States.
(6) The application of sub-articles (1), (2) and (3) shall not be
deemed to include the prohibition of agreements, decisions by
associations of undertakings or concerted practices which may
affect trade between Member States but which do not restrict
competition within the meaning of Article 101(1) of the TFEU or
which fulfil the conditions of Article 101(3) of the TFEU, or which
are covered by a Regulation for the application of Article 101(3) of
the TFEU.
(1) Agreements, decisions or concerted practices
between undertakings shall not be subject to the prohibition in
article 5(1) if the impact of the agreement, decision or practice on
the relevant market is minimal.
(2) In determining whether such impact is or is not minimal,
consideration shall be given to all relevant circumstances including
the aggregate share of all the undertakings concerned of the
relevant market.
(3) The foregoing provisions of this article shall not apply
where in a relevant market competition is restricted by the
cumulative effect of parallel networks of similar agreements
established by several undertakings.
(Deleted by Act III. 2004.131).
(1) The Minister may, after consultation with the Board ,
by regulations prescribe that there shall be exempted from the
provisions of article 5(1) such categories of agreements, decisions
and concerted practices as may be specified in the regulations.
(2) The regulations referred to in sub-article (1) shall only be
made where the agreement, decisions or concerted practice satisfy
the requirements mentioned in article 5(3).
(3) Without prejudice to the provisions of sub-article (2) the
Minister may in such regulations make an exemption subject to
such conditions and limitations as he may deem appropriate.
(1) Any abuse by one or more undertakings of a dominant
position within Malta or any part of Malta is prohibited.
(2) Without prejudice to the generality of the provisions of sub-
article (1), one or more undertakings shall be deemed to abuse of a
dominant position, where it or they -
(a) directly or indirectly impose an excessive or unfair
purchase or selling price or other unfair trading
conditions;
(b) limit production, markets or technical development to
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the prejudice of consumers;
(c) apply
dissimilar
conditions,
including
discrimination to equivalent transactions with different
trading parties, thereby placing any or some of the
trading parties at a competitive disadvantage;
(d) make the conclusion of contracts subject to the
acceptance by the other party of supplementary
obligations which, by their nature or according to
commercial usage, have no connection with the subject
of such contracts.
(3) For the purpose of determining whether the purchase or
selling price is excessive or unfair, all relevant factors shall be
considered and in particular
(a) the price charged for the product (in absolute terms);
(b) the percentage increase or increases in the price over
the long and short term;
(c) the relationship between the price and the cost of the
product;
(d) the period of time for which the price has been
charged;
(e) the economic value of the product;
(f) the importance of the product to consumers;
(g) the economic or other risks associated with bringing
the product to the market;
(h) the investment of capital and other resources necessary
to bring the product to the market;
(i) the expected, probable or possible changes in the
market for the product; and
(j) the price charged for the product by other undertakings
in Malta and by the same or other undertakings in
other analogous markets.
(4) Article 102 of the TFEU shall also apply where any abuse
by an undertaking may affect trade between Malta and any one or
more Member States.
(Deleted by Act III. 2004.134).
(Deleted by Act XXVIII.2000.11).
(1) Where the trend of trade, the rigidity of prices or other
circumstances suggest that competition may be restricted or
distorted within the Maltese market, the Director General may
conduct an inquiry into a particular sector of the economy or into a
particular type of agreements across various sectors. In the course
of that inquiry, the Director General may request the undertakings
or association of undertakings concerned to supply the information
necessary for the application of articles 5 and 9 of the Act and
Articles 101 and 102 of the TFEU and may carry out any
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inspections necessary for that purpose.
(2) For the purposes of sub-article (1), article 12 shall mutatis
mutandis apply.
(3) The Director General may publish a preliminary report on
the results of the inquiry into particular sectors of the economy or
particular types of agreements across various sectors and invite
comments from interested parties before publishing the final report.
(1) It shall be the duty of the Director General to ensure
that the provisions of this Act are observed by all, and to gather
information that may be necessary for him to carry out his
functions; and for such purpose he shall have power to carry out
investigations of his own motion or at the request of the Minister or
upon a reasonable allegation in writing of a breach of the
provisions of this Act, by a complainant or at the request of any
designated national competition authority of any other Member
State or the European Commission.
(2) (a) During the course of any investigation carried out by
the Office in accordance with sub-article (1), the Director General
may request any undertaking or association of undertakings to
furnish him with any information or document which are accessible
to such undertaking and, or association of undertakings,
irrespective of where it is stored for the application of articles 5
and, or 9 of the Act and, or Articles 101 and, or 102 of the TFEU,
which the Director General has reason to believe are necessary to
the matter under investigation within such time that in the
circumstances of the investigation the Director General may
consider reasonable
Provided that such requests for information shall be
proportionate and the Director General may also request the
manner and form in which the information or document are to be
produced or provided
Provided further that during the course of any investigation
carried out by the Office in accordance with sub-article (1), the
Director General may request any other natural or legal persons to
provide any information or document that may be relevant for the
application of articles 5 and, or 9 of this Act and, or Articles 101
and 102 of the TFEU within a specified and reasonable time limit.
(b) During the course of any investigation carried out by
the Office in accordance with sub-article (1), the Director General
m a y a l s o su m m o n a n y r e p r e s e n t a t i v e o f a n u n d e r t a k i n g o r
association of undertakings, any representative of other legal
persons, and any other person, where such representative or person
may possess information relevant for the application of articles 5,
and or 9 of the Act and, or Articles 101 and, or 102 of the TFEU, to
appear for an interview at a place and time as specified by the
Director General to answer questions with respect to any matter
relevant to the investigation
Provided that the Director General may record the
interview in any manner and form deemed appropriate by him.
(c)
Nothing in this sub-article may be construed as
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authorising the Director General to order the production of any
document or the disclosure of any information which may be
subject to the duty of professional secrecy, except where such
disclosure is allowed under the law.
(d) During the course of any investigation, when a person,
undertaking or association of undertakings answers to questions raised
by the Office both in writing and verbally, the person, undertaking or
association of undertakings concerned shall not be obliged to provide
any answer which might involve an admission on its part of the
existence of an infringement of articles 5, and, or 9 of the Act and, or
Articles 101 and, or 102 of the TFEU, but it is in any event obliged to
answer factual questions and to provide documents.
(3) When sending a request for information to an undertaking or
association of undertakings, the Director General shall state the legal
basis and the purpose of the request, specify what information is
required and fix a time limit within which the information is to be
provided.
(4) Where undertakings and associa-tions of undertakings
submit information which contains business secrets or other
confidential information, article 29 of the Malta Competition and
Consumer Affairs Authority Act shall apply.
(5) Any undertaking that shows that its operations are directly
affected by the investigation being carried out by the Director
General, any association of undertakings, any person or any
registered consumers’ association claiming that it or its members
are being adversely affected by, any breach of the provisions of this
Act constituting the subject-matter of those investigations, may
request in writing to make submissions before the Director General
at any stage thereof and the Director General shall accede to the
request if he considers it justified and determine the manner in
which such submissions shall be made.
(6) In the course of any investigation, whether during an interview
or inspection, the Director General may take statements from any
person, as well as make copies of any document produced to him, and
the record of such statements and such copies duly attested by the
Director General shall be producible as evidence before the Court and
before any other court of law.
(7) (a) The Director General and, or his officers authorised by
him and, or any other person authorised or appointed by the
Director General duly authorised by a warrant issued by a
Magistrate may, for the purpose of any investigation under this
article conduct all necessary unannounced inspections and enter
into and search premises, land or means of transport of
undertakings and, or association of undertakings for the application
of articles 5 and, or 9 of the Act and, or Articles 101 and, or 102 of
the TFEU.
(b) The Director General and, or his officers authorised by
him and, or any other person authorised or appointed by the
Director General, duly authorised by a warrant issued by a
Magistrate, may, for the purpose of any investigation under this
article, conduct all necessary unannounced inspections and enter
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into and search any premises, land or means of transport, other than
those referred to in paragraph (a) of this sub-article, including the
homes of directors, managers, and other members of staff of
undertakings or associations of undertakings, where the Director
General has a reasonable suspicion that documents related to the
undertaking and, or association of undertakings and to the subject
matter of the inspection, which may be relevant to prove an
infringement of articles 5 and, or 9 of this Act and, or Articles 101
and, or 102 of the TFEU are being kept in those premises, land or
means of transport
Provided that the Magistrate in deciding whether to issue a
warrant under sub-articles (7)(a) and (b) shall ensure that the
coercive measures envisaged are neither arbitrary nor excessive.
(c) In the course of any search pursuant to paragraphs (a)
and (b) of this sub-article, the Director General and, or any
authorised officer and, or any other person authorised or appointed
by the Director General shall be empowered to
(i)
inspect and examine any object or document, including
books and other records related to the business,
irrespective of the medium on which they are stored
and access any information or document which are
accessible to the entity subject to the inspection
Provided that this includes the power to search for
documents, files or data on devices which are not
precisely identified in advance
Provided further that the power to examine books or
records covers all forms of correspondence, including
electronic messages irrespective of whether they
appear to be unread or have been deleted;
(ii) seize and confiscate any object or document, or take or
obtain in any form, copies of or extracts from such
books or records or any other document and where
they consider it appropriate, to continue making such
searches for information and the selection of copies or
extracts at the premises of the office or at any other
designated premises;
(iii) require any information which is stored in a computer
or any other object or device including external servers
and cloud services which are accessible from the
premises, land or means of transport, and which the
Director General and, or his officers consider relevant
to the investigation, to be delivered in a form in which
it can be taken away and in which it is visible and
legible;
(iv) order the non-removal of objects or documents from
any such premises, land or means of transport;
(v) close and seal any or all parts of such premises, land or
means of transport, or put any books or records or any
other object or document under seal for the period and
to the extent necessary for the inspection;
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(vi) ask any representative or member or staff of the
undertaking or association of undertakings concerned
for an explanation of any fact or document relating to
the subject-matter and purpose of the inspection, or to
state to the best of their knowledge and belief where
the documents may be found and record the answers;
(vii) take any steps which appear to be necessary to
preserve any object or document or to prevent any
interference with such object or document.
(d) Notwithstanding any provisions contained in the
Criminal Code, the Director General shall have the right to appeal
against a decision of the Court of Magistrates to refuse to issue a
warrant under this sub-article, before the Court of Criminal Appeal
within five days from the date of such a decision and the Court of
Criminal Appeal shall endeavour to decide in the shortest time
possible.
(8) (a) The warrant mentioned in sub-articles (7)(a) and (b)
shall specify the subject-matter, purpose of the inspection, the date
on which the inspection shall begin and the relevant penalties
provided for in article 21.
(b) The powers conferred by article 12(7) are to be
exercised by the Director General and, or his officers and, or any
person authorised or appointed by the Director General on
production of a warrant issued under the said article.
(c) The Director General and, or any of his officers and, or any
person authorised or appointed by the Director General entering
premises, land or means of transport by virtue of a warrant issued
under sub-articles (7)(a) and (b) may take with them such equipment
as appears to them to be necessary.
(9) (a) In the course of any search as is referred to in sub-article
(7), the Director General and, or any of his officers and, or any person
authorised or appointed by the Director General may request the
assistance of the Police and in such case the Police shall require a
warrant issued by the Magistrate to assist the Director General in the
search.
(b) Where police assistance is sought by the European
Commission in terms of Article 20(6) of Council Regulation (EC)
No 1/2003, a warrant from a Magistrate shall be required.
(10) In issuing a warrant enabling the European Commission to
carry out an inspection in terms of Article 21 of Council Regulation
(EC) No 1/2003 the Magistrate shall follow the provisions of
paragraph (3) thereof.
(11) In the course of an inspection under this article, the
undertakings or association of undertakings or persons subject to
the inspection may be assisted by legal counsel of their choice
Provided that officers may wait a reasonable time for the
legal counsel to arrive before starting the inspection and during this
time, officers may take any reasonable measures to prevent any
potential tampering with evidence or to prevent any potential
communication by which other undertakings will be informed that
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an investigation is taking place
Provided further that the right of such assistance may delay
but shall not have the effect of suspending the inspection.
(12) The Director General shall always issue a receipt to the
person on the premises or in control of any object that has been
seized. Anything which has been lawfully seized by the Director
General and any order given by the Director General in accordance
with sub-article (7) may be retained or shall remain in force as long
as it is considered necessary by the Director General.
(13) No search may be commenced on any premises, land or means
of transport after seven o'clock in the evening and before seven o'clock
on the next following morning, unless there is reason to believe that
delay could cause the loss of information and the search is expressly
authorised by the Magistrate, to take place between the said times.
(14) Nothing in this article shall be deemed to detract from the
powers of the Police under the Criminal Code or under any other
law.
(1) Where, following an investigation, the Director
General considers that an infringement of articles 5 and, or 9 of this
Act and, or an infringement of Articles 101 and, or 102 of the
TFEU may have occurred, he shall file in Court a sworn
application
Provided that for the purposes of this sub-article the
Director General may also consider that an infringement of articles
5 and, or 9 of this Act and, or an infringement of Articles 101 and,
or 102 of the TFEU may have occurred at some time in the past
Provided further that for the purposes of the previous
proviso, it is immaterial whether t he a greement, decision,
concerted practice or conduct in question remains in existence
Provided further that where the Director General considers
that an agreement or concerted practice infringes article 5(1) of this
Act and, or Article 101(1) of the TFEU, the Director General may
institute proceedings against a number of undertakings which are less
than those undertakings who actually are a party or were a party to that
agreement or concerted practice, or are, or were engaged in that
conduct.
(2)
The sworn application mentioned in sub-article (1) shall
(a)
Set the facts which led the Director General to
find a suspected infringement of articles 5 and, or 9 of the Act
and, or a suspected infringement of Articles 101 and, or 102 of
the TFEU.
(b)
Where appropriate, contain a request by the
Director General for the Court to issue a judgement finding an
infringement of articles 5 and, or 9 of this Act and, or an
infringement of Articles 101 and, or 102 of the TFEU against
the undertaking and, or association of undertakings concerned.
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(c)
Where appropriate, contain a request by the
Director General for the Court to impose a penalty, and, or any
other remedy on the undertaking and, or association of
undertakings concerned as contemplated in this Act
Provided that the Director General may also indicate a
specific amount of the penalty either in its sworn application or
by a note presented in Court during proceedings
Provided further that the provisions of article 156 of the
Code of Organization and Civil Procedure shall, where
applicable, also apply to the sworn application.
(3)
In addition to the above, the Director General may also
include a report in the Maltese or English language with the findings
of the investigation carried out by him
Provided that where the Director General institutes
proceedings relating to a matter in respect of which he has received a
complaint, he may provide the complainant with a copy of the non-
confidential version of the report.
(4) Without prejudice to the provisions of article 12A(1), the
Director General may also file a sworn application requesting the
imposition of a penalty on the undertaking, and, or association of
undertakings concerned in all the other instances pursuant to the
provisions of article 21.
(5) The undertaking and, or association of undertakings
against whom the sworn application is served, shall file by no later
than twenty days from date of service, a sworn reply and the
provisions of article 158 of the Code of Organization and Civil
Procedure shall, mutatis mutandis, apply in this case.
(6)
During court proceedings, the undertaking and, or
association of undertakings concerned in receipt of a sworn
application, shall, upon a request to this effect, be entitled to have
access to the file of the investigation concerning their case, without
prejudice to the non-disclosure of information or documents
identified by the Director General deemed to contain business
secrets, or other confidential information, or internal documents of
the Director General or of the Competition Authorities of other
Member States. The Director General shall provide access to the file
of the investigation at any time
Provided that any document forming part of the access to
the file may be provided by the Director General to the defendant in
different sittings.
(7)
In the interpretation of this Act and of any regulations
made thereunder and in the exercise of his responsibilities under this
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Act and any regulations made thereunder, the Director General shall
have recourse to the judgements of the Court of Justice of the
European Union, to relevant decisions and statements of the
European Commission including interpretative notices on the
relevant provisions of the TFEU and secondary legislation relative to
competition and may have recourse to his decisions, and those of the
Court and to those of the Competition and Consumer Appeals
Tribunal and the Commission for Fair Trading
Provided that the Director General may have recourse to other
sources as long as they are consistent with the competition law
judgements of the Court of Justice of the European Union and to
decisions and statements of the European Commission.
(8) Notwithstanding any other provision in the Code of
Organization and Civil Procedure, the evidence admissible before
the Court and in case of an investigation, before the Office, shall
include documents, oral statements, electronic messages,
recordings and all other objects containing information,
irrespective of the form it takes and the medium on which the
information is stored.
(1) The Director General together with any
undertaking and, or association of undertakings shall have the right
to demand, either during the course of the investigation before the
Office or at any stage after the closure of the said investigation, that
the investigation or the proceedings before the Court, as the case may
be, are terminated by mutual consent between the Director General
and the undertaking and, or the association of undertakings
concerned by means of the settlement procedure, which includes the
finding of an infringement in terms of article 13(1) and the
imposition of a penalty by the Court in terms of article 21(1) as
provided for in this article.
(2) The termination of the investigation before the Office or
the termination of proceedings before the Court by means of
settlement, shall be granted by virtue of a judgement delivered by the
Court upon the demand made jointly by the Director General and any
undertaking, and, or association of undertakings concerned, where
the Director General and the undertaking, and, or association of
undertakings concerned agree that the investigation before the Office
or the proceedings before the Court, as the case may be, are
terminated by means of the settlement procedure, which includes the
finding of an infringement in terms of article 13(1) and the
imposition of a penalty in terms of article 21(1) by the said Court
Provided that not all undertakings and or, association of
undertakings which are under investigation or which are subject to
proceedings before the Court must agree to submit to a settlement
procedure.
(3) The joint demand mentioned in sub-article (2) shall be
made by means of a joint application filed in Court
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Provided that the Court must be satisfied that all the
requirements of sub-article (7) are reflected in the joint application
Provided further that after the Court considers that the
requirements of sub-article (7) have all been satisfied, the Court shall
appoint a sitting to confirm that the undertaking, and, or association
of undertakings concerned are not contesting the contents of the
settlement submissions and that all the parties concerned express
their unconditional willingness to terminate the investigation before
the Office or the proceedings before the Court by means of the
settlement procedure, after which sitting, the Court shall pronounce
judgement on the basis of the joint application.
(4)
In the course of an investigation concerning an alleged
infringement of articles 5 and, or 9 of the Act and, or an alleged
infringement of Articles 101 and, or 102 of the TFEU, the Director
General may prior to the filing of a sworn application in Court
pursuant to article 12A of the Act, if he deems it appropriate for the
expeditious and efficient conclusion of the investigation, invite all,
some or one of the undertakings concerned and, or the association of
undertakings concerned to indicate in writing, within the time limit
set by him, whether they are prepared to engage in settlement
discussions with a view to possibly introducing settlement
submissions
Provided that, the Director General shall not be obliged to
take into account the replies received after the expiry of that time
limit
Provided further that, at any time during the course of an
investigation, any undertaking and, or association of undertakings
concerned may also request to engage in settlement discussions with
the Director General
Provided further that, the decision regarding the initiation
of the settlement discussions falls within the exclusive competence of
the Director General.
(5)
Should the Director General ascertain that sufficient
progress in the settlement discussions have taken place, the Director
General shall invite the undertaking and, or association of
undertakings concerned to introduce their settlement submissions
before the Office within a time limit as set by the Director General
with a view to conclude the settlement procedure
Provided, that before the Director General sets a time
limit to introduce their settlement submissions, the undertaking and,
or association of undertakings concerned may be informed of the
main elements of the suspected infringement, consisting of
(i)
the evidence found;
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(ii)
the legal assessment of the facts; and
(iii) the specific amount of the penalty to be requested
by the Director General in the joint application
Provided further that before the Director General sets a
time limit for the undertaking and, or association of undertakings to
introduce their settlement submissions, the undertaking and, or
association of undertakings concerned may have limited access to the
file of the investigation concerning their case which is granted only
to the extent that the Director General deems reasonable in view of
the objectives of the settlement procedure. If access to the file is
granted, the Director General shall provide partial access to the case
file by providing non-confidential versions of any specified
accessible document listed in the case file at that point in time
Provided further that before the Director General sets a
time limit for the undertaking and, or association of undertakings to
introduce their settlement submissions, the undertaking and, or
association of undertakings concerned shall be given the opportunity
to present their views on the alleged infringement and make
observations
Provided further, that if the undertaking and, or
association of undertakings fails to submit the settlement
submissions within the time limit set by the Director General, it shall
be considered that the undertaking, and, or association of
undertakings concerned has withdrawn from the settlement
procedure.
(6)
(i)
The documents and the information exchanged
between the Director General and the undertaking and, or association
of undertakings concerned during the settlement procedure are
confidential
Provided that the information given pursuant to sub-
article (5) shall be confidential in regard to other parties subject to
the relevant investigation before the Office, save where the Director
General has given a prior explicit authorization for disclosure.
(ii) Settlement submissions shall only be accessible to
the undertakings and, or the association of undertakings which are
subject to the relevant investigation before the Office or are subject
to relevant proceedings before the Court instituted in terms of the Act
or are subject to any relevant proceedings before the Court of Appeal
and only for the purposes of exercising their rights of defence.
(iii) The party who has obtained access to the file
during investigations before the Office or proceedings before the
Court or the Court of Appeal may only use information taken from
settlement submissions submitted in terms of the Act where
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necessary, to exercise its rights of defence in proceedings before the
courts of Malta in cases that are directly related to the case for which
access has been granted, and only where such proceedings concern
(a) the allocation between cartel participants of a penalty
imposed jointly and severally on them by the Court; or
(b) the appeal before the Court of Appeal of a judgement
by the Court finding an infringement of articles 5 and,
or 9 of the Act or Articles 101 and, or 102 of the
TFEU.
(iv) The parties granted access to settlement
submissions together with their legal counsels who are granted
access on their behalf, cannot make any copy by mechanical or
electronic means of any information in the settlement submissions to
which access is being granted.
(7) The settlement submissions submitted before the Office
pursuant to sub-article (5) shall be produced together with the joint
application and shall contain a voluntary statement by the
undertaking and, or association of undertakings concerned containing
the following information
(a)
a statement by the undertaking and, or association
of undertakings concerned, clearly and unequivocally admitting
their participation in the infringement as well as their liability
regarding articles 5 and, or 9 of the Act and, or Articles 101
and, or 102 of the TFEU;
(b)
a factual and brief description of the conduct of
the undertaking and, or the association of undertakings
concerned, the objective of the conduct and the way in which it
was carried out, its duration and the extent in which the
undertaking and, or association of undertakings were involved;
(c)
a statement of the undertaking and, or association
of undertakings concerned declaring that they accept the
amount of the penalty that is being requested by the Director
General in the joint application;
(d)
a statement of the undertaking and, or association
of undertakings concerned to the effect that they were
sufficiently informed by the Director General regarding the
main elements of the suspected infringement contained in sub-
article (5) and a declaration of the undertaking and, or
association of undertakings that they were given sufficient
opportunity to be heard and to make their views known to the
Director General;
(e)
a statement of the undertaking and, or association
of undertakings concerned that they will waive their right to
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obtain further or full access to the file of the investigation
concerning their case;
(f)
a statement of the undertaking and, or association
of undertakings concerned containing its waiver of its right to
appeal or challenge in any way the settlement procedure, the
investigation related to the settlement procedure, or the
judgement of the Court including the penalty; and also waiver
of any action or claim deriving from the same settlement
procedure and, or related to the investigation related to the
settlement procedure and, or related to the judgement of the
Court and, or the penalty;
(g)
a statement of the undertaking and, or association
of undertakings concerned that it agrees with the contents of the
settlement submissions and that it agrees with the facts together
with the legal assessment of the facts of the infringement as
established by the Director General in the joint application
Provided that together with the settlement submissions
the joint application shall also include a statement by the
Director General
(i)
agreeing with the settlement submissions
of the undertaking and, or association of undertakings
concerned;
(ii)
specifying the amount of the penalty he is
requesting to be imposed on the undertaking and, or
association of undertakings concerned; and
(iii) requesting the Court to deliver a
judgement to terminate proceedings by means of
settlement based on the settlement submissions of the
undertaking and, or association of undertakings
concerned contained in the joint application and to
impose the amount of the penalty as requested by the
Director General;
(h)
a statement by the undertaking and, or association
of undertakings concerned that it agrees that a joint application
is filed in Court together with the Director General to terminate
the investigation or the proceedings, as the case may be, by
means of the settlement procedure, and to request the Court to
deliver a judgement on the basis of the joint application
Provided that the joint application shall
also include the following information by the Director
General
(i)
a short description of the facts of
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the infringement and the legal assessment of the
infringement; and
(ii)
the specific amount of the penalty that the
Director General is requesting to be imposed on the
undertaking and, or association of undertakings
concerned;
(8)
Settlement discussions may also be proposed jointly by
the parties at a later stage, when a sworn application would have
already been filed by the Director General before the Court
Provided that the Court may adjourn two sittings so that
within such time the parties would be able to attempt to settle the
dispute by filing a joint application as referred to in sub-article (3)
Provided further that if the Director General and, or the
undertaking and, or association of undertakings concerned fail to file
a joint application within the adjourned two sittings allocated by the
Court, proceedings against the undertaking, and, or association of
undertakings concerned shall continue according to the stage where
the proceedings before the Court had arrived.
(9)
If the undertaking, and, or association of undertakings
concerned agree to terminate the investigation before the Office or
the proceedings before the Court by means of settlement, by filing
together with the Director General the joint application, the Director
General shall reward the undertaking and, or association of
undertakings for the settlement, by reducing the penalty which would
otherwise have been requested by the Director General to be imposed
by the Court in terms of article 21(1) of the Act by ten to thirty-five
per centum (10-35%).
(10) The Director General may decide at his own discretion at
any time during the settlement discussions to discontinue settlement
procedure altogether in a specific case or with respect to one or more
of the parties involved, if, for instance
(a)
procedural efficiencies are not likely to be
achieved; or
(b)
the settlement submissions do not contain all the
requirements mentioned in sub-article (7); or
(c)
the undertaking and, or association of
undertakings do not have a sincere intention of settling the case
or do not cooperate or have breached the confidentiality
obligation by revealing to any third party the content of the
settlement meetings held with the Director General or the
contents of the documents to which access has been granted
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Provided that in case where the Director General
discontinues the settlement discussions for any reason as
provided for in this sub-article, or in the case where the
undertaking and, or association of undertakings concerned or
the Director General, as the case may be, withdraw or
discontinue the settlement procedure as provided for in sub-
articles in (5) and (8), the case shall proceed according to the
stage where the investigation or proceedings have arrived.
(11) If the settlement procedure is discontinued either by the
Director General or by the undertaking and, or association of
undertakings concerned during the investigation before the Office or
during Court proceedings while attempting to settle the dispute, any
information and document provided by the undertaking, and, or
association of undertakings concerned during the settlement
procedure cannot be used as evidence to establish an infringement of
articles 5, and, or 9 of the Act, and, or an infringement of Articles
101 and, or 102 of the TFEU against the undertaking and, or
association of undertakings concerned or other parties to the
investigation before any court of law
Provided that the foregoing provision of this sub-article is
without prejudice to sub-regulation (4)(c) of regulation 6 of the
Competition Law Infringements (Actions for Damages) Regulations
in the Schedule
Provided further that documents and, or information which
were already in the possession of the Office prior to being presented
by the undertaking and, or association of undertakings concerned and
any information which can be requested by the Office pursuant to
article 12 of the Act, can be used as evidence by the Office and before
any court of law to establish an infringement of articles 5, and, or 9 of
the Act, and, or an infringement of Articles 101 and, or 102 of the
TFEU against the undertaking, and, or association of undertakings
concerned or against other parties to the investigation.
(1)
Instead of delivering a judgement finding an
infringement pursuant to article 13(1), the Court may issue a
judgement declaring commitments offered by the undertaking and, or
the association of undertakings concerned involved in a suspected
infringement to be binding on them, if the commitments are such as
to bring the suspected infringement to an end and where those
commitments meet the competition concerns expressed in that case
Provided that when delivering such judgement, the Court
shall not impose any penalty and shall not specify as to whether there
has been an infringement of articles 5, and, or 9 of the Act and, or
Articles 101 and, or 102 of the TFEU.
(2)
Commitments shall not be applicable where the suspected
infringement concerns secret cartels or any other agreements,
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decisions or concerted practices which involve price fixing, market
sharing or output limitation
Provided that in all other cases, the Court shall make a
case by case assessment, after taking into consideration all the
submissions of the parties to the proceedings, and any third party
comments as provided in sub-article (5) as to whether commitments
are the most appropriate measures to address the suspected
infringement in the case at issue.
(3) The judgement may specify that those commitments may
be adopted for a specific period of time and shall conclude that there
are no longer grounds for action that can be taken by the Director
General against the undertaking, and, or association of undertakings
concerned.
(4) Where the Court intends to deliver a judgement under
sub-article (1) and accepts the commitments proposed, it shall seek
the views of market participants by publishing a concise summary of
the case and the main contents of the commitments or of the
proposed course of action on the Gazette, having regard to the
legitimate interests of the undertakings as well as the protection of
business secrets or other confidential information
Provided that the Director General may request the
authorisation of the Court to seek the views of market participants or
of any other third parties by informing them directly regarding the
proposed commitments, which request shall also include the
authorization of the Court on the manner in which the said proposed
commitments are to be published and the time within which all views
of market participants or of any other third parties should be received
in the registry of the Court.
(5) Any interested party may submit their observations in the
records of the case within the time limit fixed by the Court in its
publication
Provided that the Director General and the undertaking
and, or association of undertakings concerned shall be notified and
given a copy of the third party comments.
(6) The Court shall reopen the proceedings upon a sworn
application by the Director General only where
(a) there has been a material change in any of the facts on
which the judgment was based; or
(b) the undertaking and, or association of undertakings
concerned acted contrary to its commitments; or
(c) the judgment was based on incomplete, incorrect, or
misleading information provided by the undertaking,
and, or association of undertakings concerned.
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(7) The Office shall have the powers to monitor the effective
implementation of the commitments referred to in sub-article (1) or
in article 17 and for this purpose, article 12 shall apply mutatis
mutandis.
The following categories of information obtained by a
party during an investigation of the Office or during proceedings
before the Court shall not be used by that party in proceedings before
the Courts of Malta, unless the Court has closed its proceedings
before it with respect to all parties under investigation by delivering a
judgement referred to in articles 12C, 13 or 13A, or otherwise has
terminated its proceedings, or unless the Office has closed its
investigation before it with respect to all parties under investigation
by delivering a decision in accordance to article 17, or otherwise has
terminated its investigation
(a) information that was prepared by other natural or legal
persons specifically for the investigation carried out
by the Office or the proceedings before the Court;
(b) information that the Office has drawn up and sent to
the parties in the course of its investigation; and
(c) settlement submissions that have been withdrawn
(1) The Court may decide that an infringement of articles
5 and, or 9 of the Act, and, or an infringement of Articles 101 and,
or 102 of the TFEU has occurred.
(2) Where upon hearing the case the Court finds no
infringement of articles 5 and, or 9 of the Act, it shall deliver a
judgement to that effect
Provided that if the Court concludes that the suspected
infringement does not constitute a breach of articles 101 and, or 102 of
the TFEU, the Court shall state in its judgement that there are no
grounds for action in accordance with Article 5 of Council Regulation
(EC) 1/2003.
(3) Where the Office had informed the European Commission in
accordance with Article 11(3) of Regulation (EC) No. 1/2003 and the
Court decides that there are no grounds to continue proceedings before
it and as a result closes those proceedings, the Office shall inform the
European Commission accordingly.
(1) The Court may in its judgement issue a cease and
desist order whereby it orders the undertaking and, or association of
undertakings concerned to cease and desist from participating in such
agreement, decision, practice or conduct, and, or issue a compliance
order setting behavioural or structural remedies addressed to the
undertaking and, or association of undertakings concerned for the
purpose of bringing the infringement to an immediate and effective
end.
(2) Any behavioural or structural remedies set out in a
compliance order shall be proportionate to the infringement
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committed and necessary to bring the infringement effectively to an
end.
(3) Structural remedies set out in a compliance order may be
imposed only where there is no equally effective behavioural remedy
or where any equally effective behavioural remedy would be more
burdensome for the undertaking concerned than the structural remedy.
(1) The Director General and any party to the
proceedings before the Court, who feel aggrieved by a judgement of
the Court delivered under this Act may appeal on points of law and,
or of fact before the Court of Appeal by means of an application filed
in the registry of that court within twenty days from the date of the
judgement of that court
Provided that the Court of Appeal shall appoint the case
for hearing by not later than six months from the date of service of
the appeal application on the parties.
(2)
If during an investigation the Director General institutes
proceedings pursuant to article 12A(4) of the Act concerning
requests for information, production of documents or the conduct of
inspections, the Court shall endeavour to deliver a judgement upon
hearing the parties in the shortest time possible
Provided that an appeal from such a judgement as referred
to in this sub-article, shall only lie after the definitive judgment in
terms of articles 12C, 13, 13A or 21 of the Act is delivered and
together with an appeal from such definitive judgement. The
judgement mentioned in this sub-article may not be challenged
before the definitive judgement is delivered
Provided further that, if following the investigation, the
Director General does not proceed to institute proceedings in terms
of article 12A(1) of the Act, the Director General shall inform the
undertaking and, or association of undertakings concerned which
shall have twenty days from the notification of the Director General
of this fact to appeal from the judgement delivered by the Court
pursuant to this sub-article.
(3) The undertaking or association of undertakings
concerned, the Director General or the complainant may request the
Court to be heard behind closed doors where the submissions to be
made or evidence to be produced is of a confidential nature or
contains business secrets.
(4)
In all cases involving the application of Article 101 and,
or 102 of the TFEU, the European Commission shall have a right to
make submissions on any matter before the Court.
(5)
(a) A confidential and a non-confidential version shall
be produced of any written observations and documentary evidence
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submitted before the Court; and
(b) The Court shall verify the confidentiality or
otherwise of the information submitted.
(6)
Subject to the provisions of this Act, the provisions of the
Code of Organization and Civil Procedure shall, mutatis mutandis,
apply to all judicial proceedings instituted according to this Act
before the Court and the Court of Appeal and to the enforcement of
judgements and decrees.
(7) When delivering judgements and decrees pursuant to the
provisions of this Act, the Court shall have recourse to the judgments
of the Court of Justice of the European Union, and to relevant
decisions and statements of the European Commission including
interpretative notices on the relevant provisions of the TFEU and
secondary legislation relative to competition and may also refer to its
decisions and those of the Competition and Consumer Appeals
Tribunal and the Commission for Fair Trading.
(8) Proceedings before the Court concerning alleged
infringements of articles 5 and, or 9 of the Act and, or Articles 101 or
102 of the TFEU, including the exercise of the powers by the Director
General and the Office under this Act and, or any regulation made
thereunder applying those articles, shall comply with general
principles of Union law and the Charter of Fundamental Rights of the
European Union.
(1) Complaints are to be received by the Director General
in writing, who shall set out the general requirements for
information to be provided by the complainant.
Provided that the complainant shall request in his complaint
that an investigation be carried out on the alleged restricted
practices.
(2) Where the Director General considers that on the basis of the
information in his possession there are insufficient grounds for acting
on a complaint or fails for some other reason to investigate a complaint
against an undertaking and, or association of undertakings concerned
in terms of this Act, he shall inform the complainant
Provided that where, having informed the European
Commission in accordance with Article 11(3) of Regulation (EC) No.
1/2003, the Office decides that there are no grounds to continue the
investigation and as a result closes the investigation, the Office shall
inform the European Commission accordingly.
(3) If the Director General considers that there are insufficient
grounds to act on a complaint or fails to investigate a complaint in
terms of the Act as referred to in the previous sub-article, it shall be
lawful for the complainant to file a sworn application in Court,
within twenty days from notification of the decision of the Director
General, to request the Court to order the Director General to act on
a complaint or investigate a complaint in terms of the Act against
the undertaking and, or association of undertakings concerned
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Provided that, if after hearing the evidence tendered by the
complainant and the Director General, the Court is satisfied that the
complaint is justified and, or that the Director General has no lawful
reasons for failing to act on a complaint or to investigate a complaint,
the Court shall deliver a judgement ordering the Director General who
shall thereupon commence the investigation or issue any other order
which the Court considers appropriate in that case.
(4) Any party to the proceedings before the Court who feels
aggrieved by the judgment of the Court delivered in terms of sub-
article (3), may appeal on points of law and, or of fact before the Court
of Appeal, by means of an application filed in the registry of that court
within twenty days from the date of the judgment of the Court
Provided that in case of any proceedings instituted under this
article before the Court or the Court of Appeal, the Director General
shall act as an official party to the proceedings and enjoy the same
rights which pertain to his counterparty.
(1) Without prejudice to article 12, a qualified entity may
also make a complaint to the Director General that with respect to
particular goods or 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 must, within ninety 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
(a) whether he has decided to take any action, or to take
no action, in response to the complaint; and
(b) if he has decided to take action, what action he
proposes to take.
(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.
(1) The Director General may suspend proceedings or
reject a complaint in terms of Article 13 of Council Regulation
(EC) No 1/2003.
(2)
Where the Director General rejects or suspends a complaint
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pursuant to sub-article (1), he shall inform the complainant without
delay of the competition authority which is dealing or has already
dealt with the case.
Deleted by Act XVI.2019.43.
(1) The Court shall, upon an application filed by the
Director General, in cases of urgency due to the risk of serious and
irreparable harm to competition on the basis of a prima facie finding
of an infringement of articles 5 and, or 9 of the Act and, or Articles
101 and, or 102 of the TFEU, issue interim measures on any
undertaking and, or association of undertakings concerned as it may
deem appropriate in the circumstances
Provided that any decree imposing interim measures
issued according to this provision shall be enforceable upon its
delivery and any interim measure shall be proportionate and shall
apply either for a specified period of time to be determined by the
Court or until the final judgement on the merits of the case is
delivered by the Court
Provided further that the interim measures may be
renewed by the Court in so far as it is necessary and appropriate upon
an application filed by the Director General before the Court.
(2) The application filed by the Director General pursuant to
sub-article (1) shall state all the facts known by him and the reasons
why he deems that the imposition of interim measures is in this case
required. Such application shall also contain all submissions to be
made together with all documents in support of the demand that is
being filed
Provided that together with the application, the Director
General may also include a report in the English language with any
findings in order to sustain his demand.
(3) The application shall be served on the undertakings and,
or associations of undertakings concerned which shall file a reply
thereto within eight days from the date of service of the application,
containing all the submissions together with all the documents in
support of the reply that is filed
Provided that the Court may reduce the said period
indicated in this sub-article, as it deems fit in the circumstances.
(4) The court shall decide the application with urgency either
in camera or after hearing the parties, if it deems fit, provided that
not more than one sitting may be fixed for such purpose.
(5) An appeal from the interim measures imposed by the
Court pursuant to sub-article (1) may be lodged by the aggrieved
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party by means of an application filed before the Court of Appeal,
within six days from the date of such decree on the legality, including
the proportionality of the interim measures and the party against
whom such an application is filed shall reply thereto within six days
from the date of service of such an application
Provided that an appeal filed in accordance with this sub-
article shall not have the effect of suspending any interim measures
imposed by the Court.
(6) The Court of Appeal shall decide on the application pursuant
to sub-article (5) in an expedited manner.
(7) The Office shall inform the European Competition Network of
the interim measures imposed in case of a prima facie finding of an
infringement of Article 101 and, or Article 102 of the TFEU, referred
to in sub-article (1).
(Deleted by Act III. 2004.138).
(Deleted by Act III. 2004.138).
When an undertaking and, or an association of undertakings
cooperates with the Office to uncover agreements between
undertakings and, or decisions of an association of undertakings and,
or a concerted practice that infringes article 5 of this Act and, or
Article 101 of the TFEU and where the existence of such an
agreement, decision or concerted practice is partially or wholly
concealed, the provisions contained in the Immunity from Penalties
and Reduction of Penalties in Cartel Investigations Regulations
shall apply mutatis mutandis.
(1)Notwithstanding anything contained in this Act, the
Director General may at his own discretion, instead of instituting
judicial proceedings according to article 12A of this Act requesting
the Court to issue a judgement declaring commitments to be
binding on undertakings and, or association of undertakings
pursuant to article 12C of this Act, decide to issue a commitments
decision to make commitments binding on the undertaking or
association of undertakings.
(2) For the purposes of sub-article (1), in an investigation
initiated with a view to adopt a decision requiring that an
infringement of article 5 and, or 9 of this Act and, or Article 101
and, or 102 of the TFEU be brought to an end, the Director General
may, after formally or informally seeking the views of market
participants, by decision make commitments offered by
undertakings or associations of undertakings binding, where those
commitments meet the concerns expressed by the Director General.
Such a decision may be adopted for a specified period, and shall
conclude that there are no longer grounds for action by the Director
General
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Provided that the Director General may re-open the
proceedings where it results to him that there has been a material
change in any of the facts on which the decision was based, or
where the undertakings or association of undertakings act contrary
to their commitments, or where a decision referred to in this sub-
article was based on incomplete, incorrect or misleading
information provided by the parties.
(3) (a) Where the Director General intends to adopt a decision
under this article, he shall, besides other methods that the Director
General may adopt to seek the views of market participants, publish
a concise summary of the case and the main contents of the
commitments or of the proposed course of action.
(b) Interested third parties may submit their observations
within the time-limit set by the Director General in the publication.
(c) The time-limit mentioned in paragraph (b) may not be
less than one month.
(d) In the publication mentioned in paragraph (a) the
Director General shall have regard to the legitimate interest of
undertakings in the protection of business secrets or other
confidential information.
(4) Any person, undertaking or association of undertakings
concerned may contest any commitments decision adopted by the
Director General by filing an application before the Court within
twenty days from the date of publication of the decision on the
Authority’s website
Provided that the application shall be served on the
Director General and the said Director General shall file his reply
thereto within twenty days from the dat e of service of the
application.
(5) The Court may either confirm in whole or in part, or
modify or quash the decision of the Director General.
(6) The Director General and any party to the proceedings
before the Court who feels aggrieved by a judgement of the Court
in terms of this article may appeal on points of law and, or fact to
the Court of Appeal by means of an application filed in the registry
of that Court, within twenty days from the date of the judgement of
the Court
Provided that in case of any proceedings instituted under
this article before the Court or the Court of Appeal, the Director
General shall act as one of the parties to the proceedings and shall
enjoy the same rights which pertain to his counter-party.
(7) Upon publication of the decision of the Director General
pursuant to article 19 such decision shall, without prejudice to the
rights stipulated under this article, constitute an executive title for
all effects and purposes of Title VII of Part I of Book Second of the
Code of Organization and Civil Procedure
Provided however that, notwithstanding the provisions of
article 256(2) of the Code of Organization and Civil Procedure, the
executive title referred to in this sub-article shall not be
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enforceable before the lapse of twenty days from the publication of
the decision on the Authority's website and that decision has not
been contested.
(8) Without prejudice to paragraph (c) of sub-article (1) of
article 14 of the Malta Competition and Consumer Affairs
Authority Act, for the purposes of this article the Office
(a) shall also have the responsibility to determine and
suppress restrictive practices through the issuing of a
commitments decision; and
(b) with regard to the application of Articles 101 and 102
of the TFEU, shall also be designated as the competent
competition authority together with the Court pursuant
to Council Regulation (EC) No. 1/2003 on the
implementation of the rules on competition laid down
in Articles 81 and 82 of Regulation 1/2003 to adopt
commitments decisions.
Deleted by Act XVI.2019.45.
(1) When publishing judgements and decrees, the Court
shall have regard to the legitimate interest of the undertakings
concerned in the protection of their business secrets or other
confidential information. The Court may give the parties concerned
the opportunity to specify the confidential parts of the judgement or
decree which they want to be excluded from publication
Provided that the Court shall ultimately decide about which
version shall be published.
(2) The Director General shall have the power, subject to the
protection of business secrets and other confidential information, to
publish any information and any other material in connection with this
Act or any regulations made thereunder or in connection with the
responsibilities of the Office under article 14 of the M a l t a
Competition and Consumer Affairs Authority Act.
(3) Notwithstanding the provisions of sub-article (1) or of any
other law, judgements of the Courts of Malta shall not publish
evidence taken from leniency statements submitted pursuant to the
Immunity from Penalties and Reduction of Penalties in Cartel
Investigations Regulations and evidence from settlement
submissions
Provided that the identity of the undertaking and, or
association of undertakings which submitted the settlement
submissions or the leniency statement shall be published in the
judgement.
(Deleted by Act III.2004.143).
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(1) The Court shall impose a penalty of not more than ten
percent of the total worldwide turnover of an undertaking and, or
association of undertakings concerned in the business year
preceding the judgement imposing the penalty under this sub-
article, for each infringement where the undertaking and, or
association of undertakings intentionally or negligently
(a) infringes the provisions of articles 5 and, or 9 of the
Act; and, or
(b) infringes Article 101 and, or 102 of the TFEU
Provided that where the infringement of an association of
undertakings relates to the activities of its members, the penalty shall
not exceed ten per centum of the sum of the total worldwide turnover
of each member active on the market affected by the infringement of
the association of undertakings.
(2)
(a) Where, upon delivering a judgement finding an
infringement of articles 5 and, or 9 of the Act and, or Articles 101
and, or 102 of the TFEU, a penalty is imposed by the Court upon an
association of undertakings, taking account of the turnover of its
members, and the association of undertakings is not solvent, the
Court shall order the association of undertakings to call for
contributions from its members to cover the amount of the penalty
due within a time limit fixed by the Court
Provided that the Court may also specify in its judgement
that where the contributions referred to in paragraph (a) are not made
to the association of undertakings within the time limit fixed by the
Court, payment of the penalty shall be made directly by any of the
undertakings whose representatives were members of the decision-
making bodies of the association of undertakings
Provided further that the Court may also specify in its
judgement that where the application of the foregoing proviso is not
sufficient to ensure the full payment of the penalty, payment of the
balance shall be made by any of the members of the association of
undertakings which were active on the market on which the
infringement occurred.
(b) The foregoing provisos of this sub-article shall not
apply to those undertakings which show that they have not
implemented the unlawful decision of the association of undertakings
and they were not aware of its existence or had actively distanced
themselves from it, before the Director General started investigating
the case.
(c)
The financial liability of each undertaking in
respect to the payment of the penalty shall not exceed the maximum
amount in accordance with sub-article (1).
(3)
(a)
Sub-article (1) shall, mutatis mutandis, apply when
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an undertaking and, or an association of undertakings intentionally or
negligently
(i)
fails to comply with a cease and desist order and,
or a compliance order pursuant to article 13A;
(ii) fails to comply with an interim measure pursuant
to article 15;
(iii) fails to comply with a commitment made binding
pursuant to articles 12C or 17;
(b)
In the application of this sub-article to an
association of undertakings, sub-article (2) shall, mutatis mutandis,
apply.
(4)
(a)
In determining the amount of the penalty, the Court
shall give due regard to the gravity and the duration of the
infringement and to any aggravating or attenuating circumstances.
(b)
Aggravating circumstances include
(i)
the Court having already imposed a penalty on
the same undertaking or association of undertakings for the
same or a similar infringement;
(ii) the undertaking or association of undertakings
concerned having already committed an infringement under
articles 5 and, or 9 of this Act and, or under Articles 101 and, or
102 of the TFEU according to a decision or judgement which
has become res judicata;
(iii) the undertaking or association of undertakings
having a leading role, as perpetrator or instigator;
(iv) retaliatory or other coercive measures taken
against other undertakings aimed at ensuring the continuation
of the infringement;
(v)
the disclosure of information to any third party
not part of the relevant proceedings under this Act or the
copying of any documents made contrary to the provisions of
article 12B(6).
(c)
Attenuating circumstances include
(i)
the involvement of the undertaking or association
of undertakings in the infringement being substantially limited;
(ii) the undertaking or association of undertakings
ending the infringement on its own accord;
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(iii)
the undertaking or association of undertakings
significantly contributing to uncover the infringement;
(iv)
the undertaking acting under severe duress or
pressure.
(5) The Court shall impose a penalty on any person,
undertaking and, or association of undertakings not exceeding fifty
thousand euro (€50,000) or a penalty not exceeding one per centum
(1%) of the total worldwide turnover of the undertaking or
association of undertakings in the business year preceding the
judgement imposing the penalty under this sub-article, whichever is
the highest, where any person, undertaking and, or association of
undertakings in the course of any investigation pursuant to article
12 or in the course of a sector inquiry pursuant to article 11A,
intentionally or negligently
(a) give any false, misleading, incomplete or incorrect
information in response to a request for information or
question referred to in article 12, or they do not supply
the information within the specified time limit;
(b) produce or furnish, or cause or knowingly allow to be
produced or furnished any document or information
which they know to be false in any particular material;
(c) fail to comply with an inspection and, or obstruct the
Director General and, or his officers and, or any other
person authorised or appointed by the Director General
in the exercise of their powers under a warrant issued
under article 12(7)(a) and (b);
(d) break the seals affixed by officers of the Office or
other accompanying persons authorised or appointed
by the Director General during an inspection;
(e) in response to a question referred to in
article12(7)(c)(vi), give an incorrect, misleading
answer, fail or refuse to provide a complete answer;
(f) disclose information to any third party not party of the
relevant proceedings under this Act or make copies of
any documents contrary to the provisions of article
12B(6);
(g) fail to appear at an interview referred to in article 12;
or
(h) prevent or hinder any investigation or sector inquiry.
(6) Where during the course of any investigation or inquiry
conducted under the Act, a person, being a director, manager,
secretary or any other similar officer of an undertaking or
association of undertakings or any other person who has to reply to
a request for information or a question pursuant to article 12
knowingly or recklessly
(a) gives any false, incorrect or misleading information;
(b) supplies incomplete information;
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(c) prevents or hinders any investigation;
(d) produces or furnishes, or causes or knowingly allows
to be produced or furnished, any document or
information which he knows to be false in any
particular material; or
(e) fails without reasonable cause to supply the
information requested,
may be liable to a penalty of not less than one thousand and five
hundred euro (€1,500) and not more than ten thousand euro
(€10,000), and may also be liable to a penalty of up to two thousand
and four hundred euro (€2,400) for each day in default.
(7) The Court shall impose on an undertaking and, or
association of undertakings, periodic penalty payments determined
in proportion to the average daily total worldwide turnover of the
undertaking and, or association of undertakings concerned in the
preceeding business year, for each day of delay, calculated from the
date set in the judgement or decision issued by the Director
General, as the case may be, in order to compel it or them
(i)
to comply with a cease and desist order and, or a
compliance order pursuant to article 13A;
(ii) to comply with interim measures pursuant to article
15;
(iii) to comply with a commitment made binding pursuant
to articles 12C or 17;
(iv) to submit to an inspection and to produce the required
objects, documents or other records as referred to in
article 12;
(v) to supply complete information in response to a
request for information referred to in articles 11A and
12;
(vi) to supply correct information and, or to produce the
requested documents in response to a request for
information referred to in articles 11A and 12;
(vii) to appear at an interview as referred to in article 12;
and
(viii)to stop from pursuing any other conduct which is
hindering the investigation or sector inquiry and, or to
rectify any acts or omissions.
(8) When determining the penalties pursuant to this article,
the Court shall in exercising its discretion ensure that the penalties
imposed are effective, proportionate and dissuasive.
(9) The Court may consider compensation paid as a result of a
consensual settlement when determining the amount of a penalty to be
imposed for an infringement of articles 5 and, or 9 of this Act and, or
Articles 101 and, or 102 TFEU in accordance with regulation 17(3) of
the Competition Law Infringements (Action for Damages) Regulations
as contained in the Schedule to the Act.
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(10) For the purposes of the imposition of penalties on parent
companies and legal and economic successors of undertakings, the
notion of undertaking in accordance with the case law of the Court of
Justice of the European Union shall apply.
(11) The liability for the payment of any type of penalty arising
under this article shall be without prejudice to any other liability that a
person, undertaking and, or association of undertakings may be subject
to under any other law.
(12) Notwithstanding the provisions of any other law, at any time
prior to the delivery of a judgement imposing a penalty under this
article, the Court may request the total worldwide turnover from any
undertaking and, or association of undertakings.
Deleted by Act XVI.2019.48.
(Deleted by Act III.2004.145).
(Deleted by Act VI. 2011.138).
Deleted by Act XVI.2019.48.
Deleted by Act XVI.2019.48.
Deleted by Act XVI.2019.48.
Deleted by Act XVI.2019.48.
(1) Penalties or periodic penalty payments shall only be
imposed under article 21 of the Act when judicial proceedings
concerning infringements contemplated in the Act are instituted
within five years after the termination of the infringement
Provided that in the case of infringements of the Act
concerning requests for information, production of documents and the
conduct of inspections, penalties or periodic penalty payments shall
only be imposed under article 21 of the Act when judicial proceedings
are instituted within three years after the termination of the
infringement.
(2)
Deleted by Act XVI.2019.49.
(3)
(a) The prescription period for the imposition of penalties
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or periodic penalty payments by the Court pursuant to article 21 of
the Act shall be interrupted by any formal investigative measure of
the Director General or, in the case of the application of Articles
101 and 102 of the TFEU also, by any formal investigative measure
of a competition authority with a view to investigating or
instituting proceedings for the infringement.
(b) The prescription period for the imposition of penalties
or periodic penalty payments by the Court pursuant to article 21 of
the Act shall be interrupted for the duration of the investigation or
proceedings before the national competition authorities of other
Member States or the European Commission in respect of an
infringement concerning the same agreement, decision of an
association of undertakings, concerted practice or other conduct
prohibited by Article 101 or 102 of the TFEU.
(c) The prescription period referred to in this sub-article shall
be interrupted with effect from the date of notification of the first
formal investigative measure to at least one undertaking or association
of undertakings which has participated in the alleged infringement.
(4) Formal investigative measures which interrupt the running of
the prescription period shall include in particular the following
(i)
written requests for information by the Director
General, the European Commission or by a
national competition authority;
(ii) a warrant issued by a Magistrate under article
12 to conduct an inspection, or a written
authorisation by the European Commission in
terms of Article 20 of Council Regulation (EC)
No 1/2003, or an equivalent document issued by
a national competition authority;
(iii) the commencement of proceedings by the
Director General, the European Commission or
by a national competition authority;
(iv) the communication of a statement of objections
by a competition authority of a Member State;
(v) the notification of the invitation by the Director
General to engage in settlement discussions
under article 12B.
(5) The interruption of the prescription period shall apply to all
undertakings and associations of undertakings which have
participated in the alleged infringement.
(6) The prescription period shall start to run again from each
interruption.
(7) The interruption of the prescription period shall end on the day
the Court closes the proceedings before it by delivering a judgement
pursuant to articles 12C, 13, 13A or 21 of this Act or when the
Director General issues a decision in terms of article 17 of this Act or
when the Director General or the Court conclude that there are no
grounds for further action on their part.
(8)
The prescription period for the imposition of penalties and
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periodic penalty payments shall be suspended for as long as
proceedings instituted pursuant to the provisions under this Act are
pending before the Court or the Court of Appeal.
(Deleted by Act VI. 2011.141).
(1) Without prejudice to the provisions of articles 3 and
12A(1), where before any other court of civil jurisdiction which is not
the Civil Court (Commercial Section) it is alleged that any agreement
or decision is null and unenforceable in accordance with article 5 of
this Act and, or Article 101 of the TFEU, or where it is alleged that
there is an abuse of a dominant position in accordance with article
9 of this Act and, or Article 102 of the TFEU, that court shall stay
the proceedings and request the Director General to submit a report
on the competition questions raised before it and the court shall
take into consideration such report, and any submissions thereon
made by the parties and the Director General, before deciding the
case
Provided that where the competition question raised before
the court has already been decided upon under the provisions of
this Act and the decision thereon has become res judicata, the court
shall abide by such decision
Provided further that where the competition issue raised
before any court of civil jurisdiction is subject to pending proceedings
instituted by the Director General before the Court, or may be the
subject of proceedings before the Court at any point in time as
contemplated in this Act, any other court of civil jurisdiction where the
competition issue mentioned in sub-article (1) has been raised shall
refer the proceedings to the competent court.
(2) Where the Director General, on his own initiative, becomes
cognizant of allegations as mentioned in sub-article (1), in a civil
lawsuit, he shall, by means of an application, request the court to
apply the procedure referred to in sub-article (1).
(3) For the purposes of drawing up reports under this article
the Director General may have resort to the investigatory powers
conferred upon him under this Act.
(1) The action for damages in respect of infringements
of competition law committed on or after the 27th December 2014
shall, notwithstanding the provisions of any other law but subject to
the provisions of this article, be regulated in accordance with the
provisions of the Schedule.
(2) Actions for damages in respect of infringements of
competition law, committed before the 27th December 2014 shall
continue to be regulated by the provisions of this Act as then in force.
(3)
Nothing in this Act shall have the effect of extending any
period of prescription applicable in respect of infringements of
competition law committed before the 27th December 2016
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according to the provisions of this Act as then in force or of reviving
any period of prescription which has expired.
(4) The provisions of this article shall be without prejudice to any
decision which may have become res judicata or to anything done in
any action which is still pending before a court at the time of the
coming into force of this article
It shall not be lawful to issue any precautionary warrant
referred to in the Code of Organization and Civil Procedure against
the Director General in respect of the exercise of his functions
under this Act.
Notwithstanding anything contained in this Act the
Director General may, within the context of a reciprocity agreement
in matters of mutual assistance relating to competition practices,
pass documents and disclose information in his possession to
authorities having responsibility in competition matters in
countries which are not Member States provided that they are
restricted in divulging such information in an analogous manner
and purpose to that of the Director General under this Act.
The Director General shall cooperate with the European
Commission and National Competition Authorities in terms of
Council Regulation (EC) No. 1/2003.
(1) Subject to the provisions of sub-article (2), the
provisions of this Act shall also apply to any Government department
or to any body corporate established by law or to any company or
other partnership in which the Government, directly or indirectly,
holds a controlling interest or to which the Government has granted
special or exclusive rights in any field
Provided that article 460(1) of the Code of Organization and
Civil Procedure shall not apply to the provisions of this sub-article
and to causes instituted by the Director General pursuant to the
provisions of this Act against any Government department, authority,
agency or any other Government body, where in the opinion of the
Director General, the said Government department, authority, agency
or any other Government body performs the function of an
undertaking as defined under this Act.
(2) Undertakings entrusted with the operation of services of a
general economic interest or having the character of a revenue
producing monopoly shall be subject to the provisions of this Act
insofar as the application of such rules does not obstruct the
performance, in law or in fact, of the particular tasks assigned to
them.
(3) The Minister may by order in the Gazette declare a specific
service entrusted to a particular undertaking to be a service in the
general economic interest.
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No action shall lie against the Director General, or any of
his officers or any authorised person acting under his direction or
control for any act or omission in connection with this Act, or any
regulations made thereunder, done or omitted by him unless such
act or omission were done in bad faith.
The tariffs referred to in the Code of Organization and Civil
Procedure in Schedule A shall apply to the causes instituted pursuant
to the provisions of this Act.
The Minister may from time to time make regulations for
the better carrying out of the provisions of this Act and may in
particular by such regulations prescribe rules for the control of
concentrations including full function joint ventures which may
prevent, restrict or distort competition within the relevant market.
(1) The Minister may by regulations
(a) prescribe the fees payable to the Director General in
connection with any request made to him under this
Act;
(b) exempting any agreement, decision or practice in
connection with agriculture and fisheries from the
provisions of article 5 under such conditions as he may
prescribe.
(2) The Minister, after consultation with the Board, may make
regulations
(a) prescribing the procedure to be followed by the office
in joint investigations, co-operation and exchange of
information with other national competition
authorities;
(b) prescribing the procedure for co-operation between the
Court, the European Commission, the national courts
and national competition authorities; and
(c) providing for the power to waive or reduce the
applicable fine in cartel investigations;
(d) prescribe any matter on competition law for the
purpose of fulfilling Malta’s international obligations
or Malta’s obligations as a Member State of the
European Union;
(e) amend or substitute the Schedule to this Act.
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