Comparative Guides

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4. Results: Answers
Merger Control
Can the parties appeal the authority’s decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and what sort of appeal will the reviewing court or tribunal conduct (eg, will it be limited to errors of law or will it conduct a full review of all facts and evidence)?

Answer ... On 31 May 2019 a new law, Act XVI of 2019, amending the Competition Act entered into force, which has changed the landscape for the issuing of decisions and subsequent judicial review thereof.

In essence, if the Office for Competition, following an investigation, considers that a breach of competition law has occurred, the office can no longer issue a decision itself. Rather, it must file a sworn application (ie, a statement of claim confirmed on oath) before the Civil Court (Commercial Section) against the suspected undertaking/s concerned. The sworn application must contain the following:

  • a summary of the facts which led the office to find a suspected infringement of competition law;
  • a demand for a finding that the undertaking/s concerned have breached competition law;
  • a demand to impose a fine (penalty) or other remedy on the undertaking/s concerned for that breach;
  • any supporting documents as the office may deem necessary at that stage, including a report of its findings following the investigation; and
  • an exhaustive list of witnesses that the office intends to produce.

The undertaking/s concerned can reply to the sworn application by means of a sworn reply (ie, a statement of defence confirmed on oath) within 20 days of service of the sworn application. The sworn reply must contain the undertaking/s’ defences, as well as an exhaustive list of witnesses that they intend to produce.

During the pendency of proceedings before the Civil Court (Commercial Section), the office may apply for the issue of interim measures in urgent cases, due to the risk of serious and irreparable harm to competition and on the basis of a preliminary (prima facie) finding of a breach of competition law. The request for interim measures may also be made by the office to the court during the course of an investigation.

The procedure before the Civil Court (Commercial Section) is adversarial. The office must produce evidence, while the respondent undertaking/s may challenge that evidence and produce evidence of their own. Certain parts of the proceedings may be heard behind closed doors if the evidence or submissions contain confidential information or business secrets.

The Civil Court (Commercial Section) will then pronounce itself on the matter in a judgment. Where it upholds the office’s sworn application, it will find the respondent undertaking/s to have breached competition law, and to this end it may impose fines (penalties) as well as behavioural and structural remedies.

A non-confidential version of the judgment will be publicly available. The Civil Court (Commercial Section) will determine what is confidential or otherwise after it hears submissions from the respective parties.

Both the office and the undertaking/s concerned may appeal on points of fact and of law against any judgment of the Civil Court (Commercial Section) within 20 days of the date of judgment (without the need for service of that judgment). The appeal application is to be lodged before the Court of Appeal, Malta’s superior court, composed of the chief justice and two senior judges. The appeal proceedings will be on an expedited track and the Court of Appeal is bound to appoint the appeal application for hearing within six months of date of service on the last party.

For more information about this answer please contact: Andrew Zammit from GVZH Advocates
Can third parties appeal the authority’s decision, and if so, in what circumstances?

Answer ... Yes, any third party entitled to a hearing in accordance with the Control of Concentrations Regulations may, within 20 days of notification or publication of the final decision of the director general (DG), file an application before the Civil Court (Commercial Section) on points of law and, or of fact, requesting an appeal from the decision of the DG.

The application shall be notified to the DG and the DG shall file his or her reply thereto within 20 days of the date of notification of the application

Furthermore, victims of competition law breaches - such as competitors, suppliers, customers and consumers of the undertaking/s allegedly breaching competition law - will still be entitled to file a complaint with the Office for Competition. Should the office reject their complaint, they are entitled to challenge the decision of the office before the Civil Court (Commercial Section) by filing a sworn application within 20 days of the office’s decision. Where the court considers that the complaint is justified or that an investigation should be undertaken, it may order the office to start an investigation. Again, an appeal on both points of fact and of law lies from such a decision.

For more information about this answer please contact: Andrew Zammit from GVZH Advocates
Merger Control