Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The 2011 Act introduced the possibility for the Director General to conduct inquiries into particular sectors of the economy or into particular types of agreements across various sectors where commercial trends, the rigidity of prices or other circumstances suggest that competition may be restricted or distorted within the Maltese market (Section 11A of the Competition Act). In the course of such  …

Complaints and investigations

The 2011 Act introduced the possibility for the Director General to conduct inquiries into particular sectors of the economy or into particular types of agreements across various sectors where commercial trends, the rigidity of prices or other circumstances suggest that competition may be restricted or distorted within the Maltese market (Section 11A of the Competition Act). In the course of such inquiries, the Director General may require undertakings or associations of undertakings concerned to supply the information necessary for the application of Sections 5 and 9 of the Act and Articles 101 and 102 of the TFEU and may carry out any inspections necessary for that purpose.

In particular cases, investigations by the Director General may be initiated ex officio, at the written request of a complainant, of the Commerce Minister, of any designated national competition authority of any other Member State or of the European Commission. The decision to open or not to open an investigation is subject to review by the Appeals Tribunal (Section 14 of the Competition Act).

Pursuant to Section 12(2) of the Competition Act, the Director has the power, in the course of an investigation, to request that any person furnish him with any information or document in his possession which is believed to be relevant to the matter under investigation. However, this right to request documentation does not extend to the disclosure of information subject to a duty of professional secrecy. Since the 2011 Act, the Director General may impose a time-limit for compliance with its information request and non-compliance may now be punished by a fine (Section 12(3) of the Competition Act).

Until the 2019 Amendment Act, the officials carrying out an inspection could, upon production of a written authorization by the Director General “enter into and search any premises and any other place, or search any means of transport where [there is] reason to believe that information relevant to the investigation may be found, and in the course of any such search may seize any object or document, or order the non-removal of any object from any such premises”. The 2011 Act allowed searches to be conducted in any other premises, land or means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned, but in that case they had to be duly authorized by a warrant issued by a magistrate (Section 12(7)). Since the 2019 Amendment Act, the Director General and/or his officials need to be duly authorized by a warrant issued by a magistrate before entering any premises, whether residential or not. The warrant must specify the subject-matter and purpose of the inspection, the date on which the inspection is to begin and the relative penalties that may apply.

In the course of an inspection, the undertakings or association of undertakings or persons may be assisted by legal counsel or other advisers of their choice provided that the right to such assistance does not have the effect of suspending or delaying the inspection. However, the 2019 Act provides that the officers must await the arrival of the counsel during a “reasonable time”. In addition, since 2019, the right against self-incrimination has been protected during the course of an investigation.

The investigated undertaking and the Office may reach a settlement but since the 2019 amendment, the agreement must be approved by the Civil Court (Commercial Section). A settlement may also be found during proceedings before the Court. Commitments, on the contrary, may no longer be offered to the Office but directly to the Court.

The 2019 Act completely remodelled competition enforcement proceedings. Where the Director General considers that an infringement of Sections 5 and/or 9 of the Act and/or of Articles 101 and/or 102 TFEU may have occurred, he must file an application before the Civil Court (Commercial Section).

The undertaking(s) concerned will have 20 days to reply to the grounds contained in the application. After adversarial proceedings the Court will hand out its ruling and, the case may be, impose fines or remedies.

The Court has also sole jurisdiction to adopt interim measures, and to approve settlements or commitments submitted by the undertaking(s). 

Proceedings before the Civil Court (Commercial Section)

Since the 2019 amendment, in cases of urgency due to the risk of serious and irreparable damage to competition, the Director General may file an application before the Civil Court (Commercial Section) for interim measures, on the basis of a prima facie finding of an infringement of Sections 5 and, or 9 of the Act and, or Articles 101 and, or 102 of the TFEU.

The undertaking or association of undertakings under investigation must be served with a copy of the ruling ordering interim measures and such ruling will apply for a specified period of time and may be renewed insofar as this is necessary and appropriate. The judgment is open to appeal before the Court of Appeal within twenty days from the date of the ruling. Such appeal may not suspend the interim measure unless the Court of Appeal otherwise decides.

Interim relief

Section 27 of the Competition Act recognizes the right of third parties to challenge the lawfulness of behavior in breach of Section 5 and/or Section 9 of the Competition Act or Articles 101 and or 102 TFEU before the courts of civil jurisdiction. The court must stay the proceedings and ask the Director General to submit a report on the competition issue raised before it, but is only bound by its terms where the issue has already been decided upon under the provisions of the Act and the decision has become res judicata.

In addition, pursuant to the provisions of Section 27A, any person who has suffered damage as a result of an infringement of Section 5 and/or 9 of the Act and/or Articles 101 and/or 102 TFEU may institute an action for damages before a civil court. The Section details the rules applicable to such action but is now superseded by the provisions of the Competition Law Infringements (Actions for Damages) Regulations, 2017 (published in the Official Gazette on 25 April 2017) which transposed EU Directive No 2014/104 of 26 November 2014 on damages actions for competition law infringements. Section 4 of the Regulation provides that any natural or legal person who has suffered damage caused by an infringement of competition law is entitled to claim and to obtain full compensation for that damage. A person will be deemed to have suffered damage even where that person is not the immediate customer or provider of the defendant. Full compensation covers 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. However, full compensation may not lead to overcompensation, whether by means of punitive, multiple or other types of damages. Under Section 5, the courts may order a proportionate disclosure of relevant evidence either from the defendant or the claimant. But the court is also entitled to order the disclosure of evidence included in the file of the Office for Competition (Section 6). However, certain limitations apply. First, the court may order the disclosure of certain categories of evidence only after the competition authority, by adopting a decision or otherwise, has closed its proceedings - this concerns information prepared by a natural or legal person specifically for the proceedings of that competition authority; information drawn up and sent to the parties by the competition authority in the course of its proceedings; withdrawn settlement submissions. Second, two categories of evidence cannot, in an action for damages, at any time, be the subject of an order for disclosure: i) leniency statements; and ii) settlement submissions. Pursuant to Section 9, an infringement of competition law found by a final decision of the Office for Competition, the Appeals Tribunal or any Court of Appeal in terms of the Act, or of the European Commission, is irrefutably established for the purposes of an action for damages brought pursuant to the Regulation. 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 the Regulation 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. Whereas Section 27A(9) of the Competition Act provided that the action was barred by the lapse of two years commencing from the day the injured party became aware or should reasonably have become aware of the damage, the infringement and the identity of the undertaking or association of undertakings responsible for the infringement. Section 10 provides for a Statute of limitations of five years. This period may 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. Moreover, according to Section 27A (11), undertakings found to have infringed competition law through joint behavior will be held 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/she has been fully compensated. Partial exemptions to those rules apply for SMEs and leniency recipients, under certain conditions. Section 13 authorizes the defendant to raise the passing-on defense on the condition that he/she prove that the overcharge resulting from the infringement of competition law was passed on. A rebuttable presumption that the overcharge was passed on to the indirect purchaser is established at Section 14(2). In addition, although the burden of proving claims regarding the extent of the harm suffered rests on the claimant, Section 16 specifies that it is presumed that cartel infringements cause harm. However, the infringer is entitled to bring evidence to rebut that presumption.

Global Competition Law

523. Complaints and investigations

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Les notions juridiques connexes

523. Complaints and investigations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise