The Malta Competition and Consumer Affairs Authority would like to clarify certain points that were raised in the editorial ‘A threat to consumers’ rights’ (January 5).
The Malta Competition and Consumer Affairs Authority Act entered into force on May 23, 2011. The law provided for the establishment of the Malta Competition and Consumer Affairs Authority and introduced significant amendments to the Competition Act. In particular, it enabled the Director General of the Office for Competition to impose administrative fines.
It is to be noted that the current legislation found in the Competition Act and brought into force in May 2011 is modelled on Regulation 1/2003 of December 16, 2002 on the implementation of the rules on competition laid down in articles 101 and 102 of the Treaty, which empowers the European Commission to conduct its antitrust investigations. Moreover, the structural model found in the Competition Act is the same as that found in the majority of the competition authorities in the EU.
The current anomaly relating to the existing powers of the Office for Competition was raised following a judgment pronounced by the Constitutional Court last May, where it was held that certain provisions of the Competition Act were unconstitutional.
The Constitutional Court confirmed that the current Competition Act is already in line with article 6 of the European Convention on Human Rights, which establishes the right to a fair trial.
Although certain provisions were found to be unconstitutional, in its judgment, the Constitutional Court found no breach of article 6(1) of the European Convention upholding the position of the Office, meaning that the present structure found in the law was pronounced by the court to be compatible with article 6 and that the breach was with respect to article 39(1) of the Constitution.
In essence, the Constitutional Court confirmed the independence and impartiality of the Competition and Consumer Affairs Tribunal. This demonstrates that the rights of citizens are not being tarnished in any way – because the right to a fair hearing and the full right of appeal are still protected.
In order to address the provisions found to be unconstitutional, the regulator is aware that a revision of the relevant article of the Constitution is being proposed to include tribunals and to empower authorities to carry out their function effectively.
This amendment was drawn up on the advice of the Attorney General, as it was envisaged that the court decision may have a far-reaching effect not only on the Office for Competition but also other administrative authorities that have the power to impose administrative fines. Hence, a constitutional amendment would ensure a fast, effective solution not only to the Competition Act but to other laws establishing other tribunals where fines are issued.
The proposed amendment would give the necessary legal force to the current legislation, which is already in line with EU legislation and which is intended to enhance the efficiency, timeliness and efficacy with which investigations are conducted and concluded, benefitting consumers, undertakings and the economy in general.
This amendment would mean that the Constitution is brought in line with the European Convention on Human Rights.
The other legislative option would necessitate a total overhaul of the Competition Act, which would require significant amendments to various laws. This would entail the introduction of significant amendments in various pieces of legislation, such as the Competition Act (chapter 379 of the Laws of Malta) and its subsidiary legislation, the Malta Competition and Consumer Affairs Authority Act (chapter 510 of the Laws of Malta), the Consumer Affairs Act (chapter 378 of the Laws of Malta) and its subsidiary legislation and the Code of Organisation and Civil Procedure.
Such an alternative approach, besides requiring a substantial amount of time to implement, would also weaken the current efficacy of the Office of Competition to the detriment of the consumer.
Being constitutional amendments that require a two-thirds majority, the proposed amendments, the regulator is informed, were presented to the Opposition for their opinions on September 1, 2016.
The Malta Competition and Consumer Affairs Authority wishes to stress that it took immediate measures to address the issue raised by the Constitutional Court’s decision and that this delicate matter continues to be given the importance it deserves.
It is also to be clarified that, apart from working to provide the necessary amendments to address the issues raised by the court, the Competition Office has continued to carry out its work and investigations on matters related to competition.
Deborah Bezzina is senior PR and information officer of the Malta Competition and Consumer Affairs Authority.