MUTUAL ASSISTANCE BETWEEN NATIONAL COMPETITION AUTHORITIES REGULATIONS

COMPETITION AUTHORITIES

SUBSIDIARY LEGISLATION 379.11

MUTUAL ASSISTANCE BETWEEN NATIONAL

COMPETITION AUTHORITIES REGULATIONS

18th June, 2021

LEGAL NOTICE 265 of 2021.

The title of these regulations is the Mutual Assistance

between National Competition Authorities Regulations.

Form for requests by the Office where it acts as the Applicant

Authority (regulation 9)

☐

Request for the notification of preliminary objections

and other documents according to regulation 6(5)

☐

Request for the enforcement of decisions imposing

penalties or periodic penalty payments according to

regulation 7(4) or (5)

A.

Applicant authority

1. Name: Office for Competition

2. Street name and number

3. Postcode and town

4. Country

5. Contact person(s)

6. Tel. (country code)(area code)

7. Fax (country code) (area code)

8. E-mail

B.

Requested authority

1. Name

2. Street name and number

3. Postcode and town

4. Country

5. Contact person(s)

6. Tel. (country code) (area code)

COMPETITION AUTHORITIES

7. Fax (country code) (area code)

8. E-mail

C.

Addressee

☐

Natural person

1. Surname

2. Official name/s

3. Date of birth

4. Place of birth

5. Details of address: street name and number, town and

postcode

6. Country

7. Fax (country code) (area code)

8. E-mail

9. Identity card reference number/passport reference

number and country of issue/company registration

reference number

☐

Legal entity

1. Name

2. Legal form

3. Identity card reference number of legal representative/

passport reference number and country of issue of legal

representative

4. Company registration reference number

5. Details of address: street name and number, town and

postcode

6. Country

7. Fax (country code) (area code)

8. E-mail

COMPETITION AUTHORITIES

D.

In case of a request for the notification of preliminary

objections and other documents

Nature of the document

☐

Preliminary objections to the alleged infringement of

Articles 101 or 102 of the TFEU

☐

Decision that applies Articles 101 or 102 of the TFEU

☐

Other procedural acts adopted in the context of

enforcement proceedings

☐

Other relevant documents related to the application of

Articles 101 or 102 of the TFEU, including documents

which relate to the enforcement of decisions imposing

penalties or periodic penalty payments

E.

In case of a request for the enforcement of decisions

imposing penalties or periodic penalty payments

1. Type of claim

☐

Penalty

☐

Periodic penalty payment

2. Information about the decision permitting enforcement

in the Member State of the applicant authority

3. Date on which the penalty or periodic penalty payments

were imposed

4. Date of notification of the decision

5. Date when the decision became final

6. Amount of the penalty or periodic penalty payment

7. Amount and calculation of the amount to be enforced by

the requested authority

8. Where applicable: information about where the penalty

or periodic penalty payment should be paid (details

about entity receiving the payment and bank account

number)

9. Information showing that reasonable efforts were made

by the applicant authority to enforce the decision in its

own territory

10. Where applicable: the reasons of the applicant authority

COMPETITION AUTHORITIES

for not enforcing the decision in its own territory

F.

Summary of the relevant facts and circumstances

G.

Summary of the attached copy of the act to be notified

or enforced

H.

Period within which notification or enforcement

should be effected (such as statutory deadlines or

limitation periods)

I.

List of Annexes

To be filled in by the requested authority

J.

Completion of notification

Date and address of notification

☐

On behalf of the requested authority, I hereby confirm

that the notification was completed in accordance with

the national law and formalities of the Member State of

the requested authority

☐

Confirmation of notification enclosed

☐

Attempt of notification negative

☐

Bill of expenses attached

Date

Signature and/or stamp

K

Completion of Enforcement

Date and address of enforcement/attempt

☐

Enforcement was completed. Requested amount was

enforced in full

☐

Enforcement/attempt was partial

☐

Billing expenses attached

Date

Signature and/or stamp

In these regulations, unless the context otherwise

requires

"the Act" means the Competition Act;

"applicant authority" means a national competition

authority of a Member State which makes a request for mutual

assistance as referred to in Chapter VII of the Directive;

"Court" shall have the same meaning assigned to it in the

Act;

"the Directive" means Directive (EU) 2019/1 of the

European Parliament and of the Council of 11 December 2018

to empower the competition authorities of the Member States to

be more effective enforcers, and to ensure the proper

functioning of the internal market;

"enforcement proceedings" means the proceedings

before a national competition authority of one of the Member

States for the application of Articles 101 and, or 102 of the

TFEU, until that competition authority has closed such

proceedings either by concluding that there are no grounds for

further action on its part or by taking a decision referred to in

Articles 10, 12 or 13 of the Directive;

"final decision" means a decision delivered by a national

competition authority, which includes any decision delivered by

a national administrative competition authority or any judgment

or decision delivered by a Court or Tribunal or other

adjudicating body in a Member State imposing fines or periodic

penalty payments adopted in accordance with Articles 13 and

16 of the Directive that cannot be, or that can no longer be,

appealed by ordinary means;

"national competition authority" shall have the same

meaning assigned to it in the Act;

"Office" shall have the same meaning assigned to it in

the Act;

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"requested authority" means a national competition

authority which receives a request for mutual assistance

from a national competition authority of another Member State

and, in the case of a request for assistance as referred to in

Articles 25, 26, 27 or 28 of the Directive, means the competent

public body which has principal responsibility for the

enforcement of such decisions under national laws, regulations

and administrative practice of the Member State in question;

"request for assistance" means a request submitted by

an applicant authority to a requested authority, for the

notification of preliminary objections and other documents in

terms of Article 25 of the Directive, or for the enforcement of

decisions imposing fines or periodic penalty payments in terms

of Article 26 of the Directive;

"TFEU" means the Treaty on the Functioning of the

European Union.

(2)

Other terms used in these regulations shall have the same

meaning as assigned to them in the Act.

These regulations implement the provisions on mutual

assistance between competition authorities found in Directive (EU)

2019/1 of the European Parliament and of the Council of 11 December

2018 to empower the competition authorities of the Member States to

be more effective enforcers, and to ensure the proper functioning of the

internal market.

For the purposes of these regulations, the Office shall act

as a requested authority or an applicant authority, as the case may be.

(1)

When acting as an applicant authority, the Office

may request a national competition authority of another Member State

to carry out an inspection or interview on its behalf pursuant to Article

22 of Regulation (EC) No 1/2003, and the Director General may

appoint officials and other accompanying persons to attend and actively

assist the requested authority in the inspection or interview.

(2)

When acting as a requested authority, the Office may, at

the request of a national competition authority of another Member

State, exercise the powers referred to in article 12 of the Act on behalf

of, and for the account of, that national competition authority in order

to establish whether there has been a failure by undertakings or

associations of undertakings to comply with the investigative measures

and decisions adopted by the applicant authority in the exercise of its

powers under its respective national laws transposing Articles 6 and 8

to 12 of the Directive.

(3)

When acting as an applicant authority, the Office may

COMPETITION AUTHORITIES

request a national competition authority of another Member State, to

use its powers under its national law on behalf of, and for the account

of the Office, in order to establish whether there has been a

failure by undertakings or associations of undertakings, to comply

with its investigative measures and decisions adopted by the Office or

the Court as referred to in articles 12, 12C, 13, 13A, 15 and 17 of the

Act.

(4)

Where the Office, acting as the requested authority,

carries out an inspection or interview on behalf of, and for the account

of, other national competition authorities pursuant to Article 22 of

Regulation (EC) No 1/2003, officials and other accompanying persons

authorised or appointed by the applicant authority shall be permitted to

attend and actively assist the Office, under the supervision of the

officials of the Office, in the inspection or interview when the Office

exercises the powers referred to in article 12 of the Act.

(5)

Where the Office, acts as an applicant authority or as a

requested authority pursuant to sub-regulations (2) and (3), it shall

have the power to exchange information with the national competition

authority of any other Member State and to use such information in

evidence for the purposes referred to in sub-regulations (2) and (3),

subject to the safeguards set out in Article 12 of Regulation (EC) No 1/

2003.

(1)

When acting as the requested authority, the Office

shall at the request of the applicant authority, cause the following

documents to be served on the addressee on behalf of the applicant

authority, by attaching the documents to be served to a judicial letter

filed in the Registry of the Superior Courts

(a)

any preliminary objections relating to an alleged

infringement of Articles 101 and, or 102 of the TFEU and any

decisions applying those articles;

(b)

any other procedural act adopted in the

context of enforcement proceedings which should be notified

in accordance with the national law of the applicant authority;

and

(c)

any other relevant documents related to the

application of Articles 101 and, or 102 of the TFEU, including

documents which relate to the enforcement of decisions

imposing fines or periodic penalty payments.

(2)

The provisions of the Code of Organization and Civil

Procedure shall apply mutatis mutandis to the mode of service referred

to in the preceding sub-regulation.

(3)

The Office shall keep a record and a copy of all requests

and of all acts or documents to which this regulation applies, and shall

COMPETITION AUTHORITIES

promptly inform the applicant authority whenever a

service

is

effected or whenever a difficulty is identified or encountered in

connection with the service, and of any further action taken following

the service.

(4)

The provisions of sub-regulations (1) and (2) shall be

without prejudice to any other form of notification made by an

applicant authority of the applicant Member State in accordance with

the rules in force in that Member State.

(5)

Where the Office acts as the applicant authority, it may

request the requested authority of another Member State, to notify to

the addressee on its behalf, the following acts or documents

(a)

any preliminary objections as contained in the

sworn application and, or in the report in terms of article 12A of

the Act or in the joint application in terms of article 12B of the

Act or the application and, or any related document in terms of

article 15 of the Act, relating to an alleged infringement of

Articles 101 and, or 102 of the TFEU and any decisions of the

Office or Court applying those articles;

(b)

any procedural act adopted in the context of

enforcement proceedings which should be notified in

accordance with Maltese law; and

(c)

any other relevant documents related to the

application of Articles 101 and, or 102 of the TFEU including

documents which relate to the enforcement of decisions

imposing penalties or periodic penalty payments adopted by the

Court.

(1)

At the request of the applicant authority, where the

Office acts as the requested authority, it shall file a sworn application

requesting the Court to enforce any final decision imposing a fine or

periodic penalty payments adopted in accordance with Articles 13 and

16 of the Directive by the applicant authority

Provided that this sub-regulation shall apply only to the

extent that, after having made reasonable efforts in its own territory,

the

applicant

authority has ascertained that the undertaking or

association of undertakings against which the fine or periodic penalty

payment is enforceable does not have sufficient assets in the Member

State of the applicant authority to enable recovery of such fine or

periodic penalty payment.

(2)

For cases not covered by the preceding sub-regulation,

in particular cases where the undertaking or association of undertakings

against which the fine or periodic penalty payment is enforceable is not

established in the Member State of the applicant authority, where the

COMPETITION AUTHORITIES

Office acts as the requested authority, it may, where the applicant

authority so requests, file a sworn application requesting the Court to

enforce a final decision imposing a fine or periodic penalty payment

adopted in accordance with Articles 13 and 16 of the Directive by the

applicant authority

Provided that paragraph (d) of regulation 8(3) shall not

apply for the purposes of this sub-regulation.

(3)

Without prejudice to the provisions of regulation 8, a

final decision delivered by a national competition authority of another

Member State, as referred to in sub-regulations (1) or (2) of this

regulation, shall be enforceable by the Court in the same manner as a

judgement delivered by that Court imposing a penalty or a periodic

penalty payment pursuant to article 21 of the Act, and the provisions

of the Code of Organization and Civil Procedure shall mutatis

mutandis apply to the said decision.

(4)

The Office, where it acts as the applicant authority, may

request a requested authority to enforce a final decision imposing a

penalty or periodic penalty payment adopted pursuant to article 21 of

the Act where, after having made reasonable efforts, the Office has

ascertained that the undertaking or the association of undertakings

against which the penalty or periodic penalty payment is enforceable

does not have sufficient assets in the territory of Malta to enable the

recovery of such penalty or periodic penalty payment.

(5)

For cases not covered by the preceding sub-regulation,

in particular cases where the undertaking or association of

undertakings against which the penalty or periodic penalty payment is

enforceable is not established in Malta, the Office, where it acts as the

applicant authority, may request the requested authority, to enforce a

final decision imposing a penalty or periodic penalty payments

adopted pursuant to article 21 of the Act

Provided that point (d) of regulation 8(3) shall not apply

for the purposes of this sub-regulation.

(6)

Limitation periods for the enforcement of fines,

penalties, or periodic penalty payments according to this regulation

shall be governed by the national law of the Member State of the

applicant authority.

(1)

After ascertaining that a request for assistance

made to the Office by an applicant authority of another Member State,

as referred to in regulations 6(1) and 7(1) or (2), contains all the

information referred to in sub-regulations (2) and (3), as the case may

be, and that such request is accompanied by a copy of the act,

document or decision to be served or enforced, the Office shall take all

necessary measures to enable such requests to be executed without

undue delay.

COMPETITION AUTHORITIES

(2)

Any request referred to in the preceding sub-regulation

shall indicate

(a) the name, known address of the addressee, and any

other relevant information for the identification of the

addressee;

(b) a summary of the relevant facts and circumstances;

(c) a summary of the attached copy of the act to be

notified or enforced;

(d) the name, address and other contact details of the

requested authority; and

(e) the period within which notification or enforcement

should be effected, such as statutory deadlines or limitation

periods.

(3)

Requests referred to in regulation 7(1) or (2) shall, in

addition to the requirements set out in the preceding sub-regulation,

provide the following

(a)

information about the decision permitting

enforcement in the Member State of the applicant authority;

(b)

the date when the decision became final;

(c)

the amount of the fine or periodic penalty

payment; and

(d) information showing that reasonable efforts were

made by the applicant authority to enforce the decision in its

own territory.

(4)

A request for assistance made by an applicant authority of

another Member State in accordance with the preceding sub-regulation

shall constitute the sole basis for the enforcement measures taken by

the Court pursuant to regulation 7(3), and the decision to be enforced

shall not be subject to any act of recognition, supplementing or

replacement by the Court. The Office shall request the Court to adopt

all measures deemed necessary for the execution of the decision, unless

it invokes sub-regulation (5).

(5)

Where the Office acts as the requested authority, it may

refuse to seek execution of a request as referred to in regulations 6(1) or

7(1) or (2) if

(a)

the request does not comply with the requirements

of this regulation; or

COMPETITION AUTHORITIES

(b)

the Office is able to demonstrate reasonable

grounds how the execution of the request would be manifestly

contrary to public policy in Malta

Provided that if the Office intends to refuse a

request for assistance as referred to in this sub-regulation, or

requires additional information, it shall contact the applicant

authority.

(6)

(a)

The information referred to in sub-regulations (2)

and (3), shall be sent in the Maltese or English language, unless the

Office and the applicant authority bilaterally agree on a case by case

basis that such information may be sent in another language.

(b)

Where so requested by the Office, the applicant

authority shall provide a translation of the act to be notified or

the decision permitting enforcement of the fine or periodic

penalty payment in the Maltese or English language, without

prejudice to the right of the Office and the applicant authority to

bilaterally agree, on a case by case basis, that such translation

may be provided in a different language.

(7)

Where the Office, acting as the requested authority so

requests, the applicant authority shall bear all reasonable additional

costs in full, including translation, labour and administrative costs, in

relation to actions taken by the Office on behalf of the applicant

authority as referred to in sub-regulations (3), (4) and (5) of regulation

5 or 6(1).

(8)

Where the Office acts as the requested authority it shall

endeavour to recover

(a)

the full costs incurred in relation to actions filed

by the Office pursuant to regulation 7(1) or (2) from the fines or

periodic penalty payments it has collected on behalf of the

applicant authority, including translation, labour and

administrative costs

Provided that where the Office is unsuccessful in

collecting such fines or periodic penalty payments, it may

request the applicant authority to bear the costs incurred; and

(b)

the costs incurred in relation to the enforcement of

a decision imposing a fine or a periodic penalty payment,

pursuant to regulation 7(3) from the undertaking or association

of undertakings against which the decision is enforceable.

(9)

Where it acts pursuant to the preceding sub-regulation,

the Office shall recover the amounts due in euro, in accordance with

the laws, regulations and administrative procedures or practices in

force in Malta

COMPETITION AUTHORITIES

Provided that the Office shall, if necessary, in accordance

with Maltese law and practice, convert the fines or periodic penalty

payments into Euro at the rate of exchange applying on the date on

which such fines or periodic penalty payments were imposed.

(1)

A request made by the Office, where it acts as the

applicant authority pursuant to regulations 6(5) or 7(4) or (5), shall be

drawn up in the Form prescribed in the Schedule and shall be

accompanied by a copy of the document, act or decision to be notified

or enforced.

(2)

The prescribed form referred to in the preceding sub-

regulation shall be sent to the requested authority in the official

language, or in one of the official languages of its Member States,

unless the Office and the requested authority bilaterally agree on a case

by case basis, that the said form may be sent in another language.

(3)

Where required under the national law of the Member

State of the requested authority, the Office, where the Office acts as the

applicant authority pursuant to regulations 6(5) or 7(4) or (5), it shall

provide a translation of the act, document or decision to be notified or

enforced into one of the official languages of the Member State of the

requested authority, without prejudice to the right of the Office and the

requested authority to bilaterally agree, on a case by case basis, that

such translation may be provided in a different language.

(4)

Where the Office acts as an applicant authority, and on

the request of the requested authority, it shall bear all reasonable

additional costs in full, including translation, labour and administrative

costs, in relation to actions taken on its behalf by the requested

authority as referred to in regulations 5(1),(2), and (5) or 6(5).

(1)

Any dispute concerning a request for assistance

made pursuant to these regulations shall fall within the competence of

the Maltese Courts and shall be governed by the laws of Malta where

the Office acts as the applicant authority, and insofar as the dispute

concerns

(a)

the lawfulness of an act to be notified in

accordance with regulation 6(5) or of a decision to be enforced

in accordance with regulation 7(4) or (5); or

(b)

the lawfulness of the prescribed Form drawn up by

the Office as provided in the Schedule permitting enforcement

in the Member State of the requested authority.

(2)

Without prejudice to the preceding sub-regulation, where

the Office acts as the requested authority, any dispute concerning the

enforcement measures taken by the Court pursuant to regulations 7(3)

or 8(4), or concerning the validity of a service made by the Office

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pursuant to regulation 6(1), shall also fall within the competence of the

Maltese Courts and shall be governed by the laws of Malta.

In the event of conflict or incompatibility between the

Maltese and English language versions of these regulations, the

English language version shall prevail.