Commission to decide on complaint against Datastream

In a preliminary judgment delivered yesterday, the Commission for Fair Trading dismissed a preliminary plea raised by Datastream Limited and ruled that it had jurisdiction to hear and decide an application filed by the Director of the Office for Fair Trading.

The judgment was handed down in the context of a dispute raised by Vodafone Malta Ltd against Datastream Ltd.

Vodafone had, in July, complained about alleged restrictive practices and abuse of a dominant market position by Datastream.

In October Vodafone filed a formal request for the Director of the Office for Fair Trading to take all such provisional measures as were necessary against Datastream, however the latter company submitted that the Office did not have jurisdiction on this issue as jurisdiction was vested in the Malta Communications Authority.

The Commission yesterday ruled that this issue had already been decided upon in other jurisdictions that had regulatory structures similar to those existing in this country.

Local law provided that questions concerning telecommunications were the responsibility, in a concomitant and contiguous manner, of both the Regulator for Communications and the Director of the Office for Fair Trading.

Both these individuals were in a position where, freely and independently of each other, they could decide to investigate an issue of fair trading brought to their notice.

The Director for Fair Trading was bound to investigate whether decisions or agreements were prohibited in terms of law or whether an entrepreneurial act was an abuse of a dominant market position.

On his part, the Regulator was obliged to ensure fair competition in all practices, operations and activities in communications.

There was consequently, said the Commission, a situation of simultaneous jurisdiction exercisable both by the Director and by the Regulator.

However, unlike the case in other jurisdictions, no guidelines or subsidiary regulations had been published that could determine the relationships that were necessarily created by the concomitant application of the duties burdening both the Director and the Regulator.

Datastream's submission was therefore unfounded and the Commission could continue to hear the case on its merits.

The Commission however took the opportunity, in yesterday's ruling, to declare that it was very worried to note that the Director had claimed that when the Office for Fair Trading was investigating Vodafone's complaint, he was advised to stop this investigation and refer the matter to the Commission.

The investigative phase was to be carried out exclusively by the executive branch of the state which in this case was the Office for Fair Trading.

That office was duty bound to investigate matters referred to it according to law.

As a result, if one of the parties felt aggrieved, it could not raise the issue before the Office that was investigating the matter, but was to refer the matter to the appropriate forum.