Malta 2024: Main developments in Competition Law and Policy
In 2024, Malta has seen the first merger control prohibition decision. There are also ongoing antitrust investigations and the overturning a’margin-squeeze’ judgement from the Competition and Consumer Affairs Appeals Tribunal, a body of appeals that was abolished in 2014. The Office for Competition (OC) – Malta’s National Competition Authority – organized dawn raid training in September 2024, in collaboration with the Academy of European Law. This was the first of its type in Malta. The OC is also recruiting for a Director General of Competition. This post has been vacant for more than a year. Other subsidiary legislation exists in relation to immunity and penalties reductions in cartel investigations. The Malta Competition and Consumer Affairs Authority Act
(“MCCAA Act”) governs both the Malta Competition and Consumer Affairs Authority and the Office for Competition, which is part of its structure. The Collective Proceedings (Competition Act)
(Chapter 520 of Malta’s Laws) also facilitates collective proceedings for rectification of consequences or compensation for harm resulting in an infringement of Competition Act.
–Public enforcement OverviewThe OC, together with the Maltese Courts, are responsible for public enforcement of Competition law in Malta. The Director General of OC will file a sworn request with the Civil Court (Commercial Section), which will then decide whether or not an infringement of competition law has occurred and impose any fines. This followed the Maltese Constitutional Court’s finding in 2016 (See Federation of Estate Agents v Director General (Competition) et (Constitutional application number 87/2013/2)) that the OC’s powers to issue decisions and impose fines (as was the case until an overhaul of the OC’s public enforcement powers within the Competition Act in 2019) were in breach of the right to a fair trial under Article 39(1) of Malta’s Constitution. The Court of Appeal can then hear an appeal on issues of law or fact. The warning letter does not constitute a finding but is a way of encouraging compliance. The OC has noted (see MCCAA Annual Report 2022), however, that failure of an undertaking to comply with a warning letter will be considered a serious aggravating factor that could result in an increase of at least 25% in the penalty requested by the OC, should Court proceedings be instituted following an investigation. Antitrust InvestigationsAs on 11.10.2023 there were 10 ongoing investigations regarding alleged breaches of articles 5 and/or 9 of the Competition Act being carried out by the OC in the following sectors: entertainment, energy, telecommunications, health, domesticated animals and maritime. This information was made public as a result of a Parliamentary Question. In the year 2024, there have been no updates on these investigations. Lidl, a major player in the grocery retail sector in Malta, was proposing to acquire immovable properties owned by Said Investments Limited as well as leases belonging another major supermarket chain. The prohibition decision was not published yet and is now being appealed. An overview of the assessment undertaken by the Office based on its press release and the decision published by the Office deciding to initiate an in-depth (Phase II) investigation
may be found here.
A further 6 decisions were issued by the Office in 2024, all providing clearance to merger control notifications. These decisions were deemed to be in compliance with the Merger Control Regulations (12) simplified procedure. The case (Go plc. (C-22334) formerly Datastream Limited v Camline Internet Services (C-26528), Director General (Competition) and Attorney General (application number 660/14 JRM)) was brought before the Court as an application for judicial review of a decision taken by judicial or a quasi-judicial body governed by law (under article 32 of the Code of Organization and Civil Procedure, Chapter 12 of the Laws of Malta
).The plaintiff raised various points as a basis for its application, including based on the lack of a detailed economic assessment by the Competition Appeals Tribunal. However, such arguments were dismissed due to the review being limited to arguments relating to the Competition Appeals Tribunal acting within the powers conferred on it by law and not an appeal revisiting the substance of the Competition Appeals Tribunal’s decision (it must be noted that under the pre-2011 legal regime, that was applicable to this case, no appeal on the merits from the decisions of the Competition Appeals Tribunal – before any court – was possible).
The arguments which led the Court to overturn the decision by the Competition Appeals Tribunal were based on the procedure that had been followed, and such procedure being under a legal regime that was not applicable to the case being decided upon. The case was originally heard by a previous body, the Commission for Fair Trading (CFT), and after revisions of the law in 2011, the CFT was abolished. It was replaced by the Competition Appeals Tribunal. The legal regime for ongoing cases, such as this one, would continue to be the same as it was prior to the MCCAA Act’s coming into effect (as stated in the transitory provision under article 70 of MCCAA Act). The Competition Appeals Tribunal was found in error in law for referring to article 14(7) (as amended by MCCAA Act), and for directing the Director-General (Competition) in accordance with that provision to take all measures he deemed necessary in respect of the breach that occurred. The Court concluded that the Competition Appeals Tribunal’s judgement was invalid, and should be revoked. It also ordered the case to go before the (now defunct) Competition Appeals Tribunal whose powers are now in the Civil Courts.
