COMPETITION

Since the promulgation of the Competition Act way back in 1994, Mamo TCV has been actively engaged in a number of competition law related actions in front of the judicial authority, known as the Commission for Fair Trading, which is entrusted with the enforcement of competition law in Malta. 

 

The competition law department of the firm is also entrusted with the drafting and vetting of agreements for its clients in order to ensure that such agreements are not in breach of the provisions of the Competition Act. The same department is responsible for the drafting of opinions which are competition law-oriented. 

 

Mamo TCV also gives advice on whether proposed mergers, acquisitions and joint ventures constitute a “concentration” in terms of the Control of Concentrations Regulations (issued under the Competition Act 1994) or in terms the EC Merger Regulation and consequently whether notification to the Director of the Office for Fair Competition in Malta or to the European Commission, as the case may be, is required. The firm also handles the said notification process for its clients. 

 

COMPETITION LAW  

 

1. Regulatory Framework 

 

Maltese competition rules are contained in the Competition Act (Act XXXI of 1994, as subsequently amended) - Chapter 379 of the Laws of Malta. Section 5 of the Act prohibits any agreement between undertakings, any decision by an association of undertakings and any concerted practice between undertakings which has the object or effect of restricting competition in Malta or any part of Malta, while section 9 prohibits the abuse by one or more undertakings of a dominant position within Malta or any part of Malta. 

 

The rules contained in the Competition Act are to a large extent based on Community competition rules, namely articles 81 and 82 of the EC Treaty, but their applicability is obviously limited to Malta only. Article 14 of the Schedule to the Competition Act indeed states that in the interpretation of the Act, the Commission for Fair Trading shall have recourse to its previous decisions and to the interpretation given by the institutions of the European Union on the provisions of the relevant treaties, directives, regulations and decisions of the European Union. It is also worth noting that the above-mentioned Articles 5 and 9 of the Competition Act provide that Articles 81 and 82 of the EC Treaty shall apply where a collusive practice between undertakings or an abuse of a dominant position by an undertaking may affect trade between Malta and any one or more Member States. 

 

2. Administrative Bodies and Judicial Remedies 

 

The authority responsible for investigating restrictive practices in competition and to institute actions in terms of the Act is the Office for Fair Competition (“l-Ufficcju tal-Kompetizzjoni Gusta”) headed by the Director for Fair Competition. The Act also establishes the Commission for Fair Trading (“il-Kummissjoni ghall-Kummerc Gust”) which is a judicial organ having the power, inter alia, to review decisions of the Director for Fair Competition and to determine whether the conduct of undertakings is in breach of the Act. It is composed of a magistrate who acts as chairman and two other members, an economist and a certified public accountant. 

 

3. Procedures and Remedies 

 

In addition to the rules relating to the prohibition of restrictive practices and those on the abuse of a dominant position by undertakings, the Competition Act contains a number of other rules relating to: 

 

(i) De minimis agreements, decisions or concerted practices 

 

(ii) Exemption of certain collusive practices from the prohibition relating to restrictive practices 

 

(iii) The establishment of the Office for Fair Competition and of the Commission for Fair Trading, as well as rules relating to investigations conducted by the Director of the said Office in order to enforce the provisions of the Competition Act 

 

(iv) Cease and Desist Orders and Compliance Orders which may be issued by the Director of the Office for Fair Competition, and Interim Measures which may be issued by the Commission for Fair Trading in instances of alleged violation of the provisions of the Competition Act 

 

(v) Offences and other penalties which arise from a violation of the provisions of the Act 

 

(vi) Rules of Procedure of the Commission for Fair Trading for the determination of matters before it 

 

4. Regulations issued under the Competition Act 

 

In addition to the Act, a number of Regulations have been issued in the form of Legal Notices. These implement the EC Regulations on competition into Maltese law. The following are the Regulations that have been issued to date: 

 

(i) Vertical Agreements and Concerted Practices (Block Exemptions) Regulations, 2001 (Legal Notice 271 of 2001) 

 

(ii) Horizontal Agreements (Block Exemption) Regulations, 2002 (Legal Notice 175 of 2002) 

 

(iii) Technology Transfer Agreements (Block Exemption) Regulations, 2002 (Legal Notice 176 of 2002) 

 

(iv) Research and Development Agreements (Block Exemption) Regulations, 2002 (Legal Notice 177 of 2002) 

 

(v) Specialisation Agreements (Block Exemption) Regulations, 2002 (Legal Notice 178 of 2002) 

 

(vi) Control of Concentrations Regulations, 2002 (Legal Notice 294 of 2002 and Legal Notice 299 of 2002) 

 

Further information on the Competition Act and on the Regulations that have been issued thereunder will be provided upon request.