Proposals presented by the government to restore full powers to the competition watchdog, the Malta Competition and Consumer Affairs Authority,  have received the thumbs up by traders who described the move as a “positive” one.

The Chamber of Small and Medium Enterprises (GRTU) was reacting when this newspaper sought its view on a set of amendments to the Competition Act which were published for public consultation a few days ago.

The changes, which have been in the pipeline for more than two years, were dictated by a landmark Court of Appeal judgment, which in May 2016 ruled that certain provisions of the Competition Act were unconstitutional. Since then the regulator has refrained from imposing any administrative fines, thus rendering itself a toothless watchdog.

Under the proposed model the Competition and Consumer Appeals Tribunal will be abolished, and instead decisions made by the regulator could be challenged before the Civil Court (Commercial Section).

Asked for her reaction GRTU CEO Abigail Mamo told The Sunday Times of Malta that the proposed revision was a move in the right direction.

The proposals seek to harmonise the role of the civil court and that of the Malta Competition and Consumer Affairs Authority in a way that they complement each other’s function and ensure greater independence of judgments, she said.

The Competition and Consumer Appeals Tribunal will be abolished and instead decisions made by the regulator could be challenged before the Civil Court

Being the higher authority, the civil court may freeze proceedings and overrule the decision of the MCCAA. All these factors should in principle provide for a higher redress mechanism and guarantee fairness, the GRTU CEO said.

Commenting on the rest of the proposals, Ms Mamo noted that businesses would have more rights, such as the removal of power of the director general to order inspections in business premises without a court warrant.

A retail outlet being investigated would also have his right against self-incrimination protected by law, the GRTU said. 

Traders also welcomed proposals to encourage dispute resolution through settlement and measures aimed at giving greater visibility to the authority’s decision to the public.

“The result of the proposed changes should be an entity that is improved, has healthy procedures fit for today’s advancements in our judicial system and safeguards against potential abuse and personal interest,” Ms Mamo said.

A competition law expert, who preferred to remain anonymous, referred to a proposed provision whereby in case a watchdog’s decision was challenged in court, any administrative fine would be automatically suspended pending the outcome of the case.

“There should be clear provisions stating that if the court upholds a fine imposed by the director general, this should be subject to an eight per cent interest on the amount being contested, covering the period between the watchdog’s ruling and the court’s decision,” he said.

“In the case of daily fines it should be clearly stated that if the court decides that these are due, then such fines should be calculated as from the day when the director general imposed the sanction until such time as it results that there was compliance with the law,” the lawyer added. 

But if the court upholds the fines originally imposed, but decides differently with respect to the date when these became due, it should be required to state why, this newspaper was told.

Such an approach would serve as a further deterrent to any anti-competitive practices, he said. 

The lawyer also called on the government to consider widening the composition of the civil court.

“Given that some cases may involve complex technical matters, having experts as voting members of the court to determine specifically technical issues – as distinct from purely legal issues – should be considered,” he said.

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