The award by the Commission for Fair Trading about the operation of open-top buses by a company called Garden of Eden demands the urgent attention of the relevant authorities and perhaps even of the Ombudsman. For the ruling is not just about a wrong decision and the need to rectify it but, more so, highlights the dangers of an inability or, worse, unwillingness to ensure that a level playing field in business exists.
The Malta Transport Authority (ADT) was found to have violated the Competition Act where it speaks about abuse of dominant position because it allowed a situation whereby one could "apply dissimilar conditions, including price discrimination to equivalent transactions with different trading parties, thereby placing any or some of the trading parties at a competitive disadvantage..." The CFT commented that the transport regulator had unduly extended the process to favour the complainant's direct competitors.
It also ruled that the Office of Fair Trading was wrong when it refused to hear Garden of Eden's complaint on grounds that the ADT was not an "enterprise".
Reading through the award one immediately realises how simple it is for a regulator like the ADT to forget about its main purpose in life and instead get lost in details which, at best, prolong a process unnecessarily leading to nowhere and, at worse, as in this case, becomes a brazen attempt to give unfair advantage to somebody.
The CFT uses harsh words in its award, possibly in an attempt to push for action to be taken by the powers that be to put things right: the ADT cannot do what it pleases; perhaps the biggest danger a state can face is when its institutions behave in a way whereby they deem laws not to be applicable to them and interpret them in a way that satisfy their hidden aims to the detriment of those seeking justice; the ADT was stifling the market so that, on the one hand, for reasons known only to itself and its leaders, it would deter the complainant in its initiative and, on the other, it would push its direct competitor; even when a distinction between institutions is made, it seems this is not enough to eliminate irrelevant interference; it would be better to have no structure at all than one that is just chimerical and that serves only those who feed it; the ADT chose the line of least resistance, that of being both a player and a referee...
It resulted, the CFT noted, "that what the ADT did was to usurp its public function by blocking the complainant for 15 whole years from operating a market it itself had originally created and developed..."
The CFT signed off its award thus (loosely translate from Maltese): The CFT must regretfully conclude that, notwithstanding its various calls for a legal regime that is far more focused and effective in the interest of both the entrepreneur and the consumer, although there are measures in place whereby one can claim that a fair trading regime exists, in effect this is only chimerical and, perhaps, even intentionally ineffective.
The government must lose no time in ordering an inquiry into the ADT and the Office of Fair Competition to find out what happened in the Garden of Eden affair. Any snakes and those who helped themselves to forbidden fruit, if so it results, must be punished.