I recently submitted successfully a thesis for the award of a doctor of philosophy degree by the University of Malta.  The title of the thesis is ‘A Study of the Regulation of Utilities in Malta’ whereby I consider diverse aspects of regulation relating to provision of utility services in Malta, notably electronic communications, postal services, electronic commerce, energy and water services. In doing so, I make various proposals for measures which I argue can lead to a more effective utilities regulatory regime in Malta. In this brief contribution, I focus on some of the proposals.

Currently, regulatory oversight of utilities service provision resides with two sectoral regulators, namely the Malta Communications Authority (MCA) and the Regulator for Energy and Water Services (REWS), and with the national competition and consumer protection regulators, namely the director general, consumer affairs and the director general, competition, within the Malta Competition and Consumer Affairs Authority (MCCAA).

One of the principal measures proposed in my thesis is the establishment of what I describe as a ‘super regulator’ which regulator would assume the regulatory functions currently performed by the two sectoral regulators, MCA and REWS, and the ex post competition and consumer protection functions which reside with the DG Competition and the DG Consumer Affairs. This super regulator would be headed by an executive board composed of five members: a chairperson responsible for the overall day to day administration, and four directors responsible respectively for competition, consumer protection, communications utilities, and energy and water services utilities.

This set-up would effectively amalgamate the regulatory functions of the MCA, REWS, the DG competition and the DG consumer affairs.

In past years there have been instances where there was lack of clarity as to whether non-compliance by a utilities service provider necessitated intervention by a sectoral regulator or, conversely, by the DG competition or the DG consumer affairs.

For example, in some instances, breach of consumer rights involved both norms enforced by the sectoral regulator and by the DG consumer affairs leading to a situation where it was not clear which authority should intervene.

The main advantage of having a super regulator would be to eliminate overlap relating to regulatory oversight between the functions of the sectoral regulators on the one hand   and the DG competition and DG consumer affairs on the other, having one regulatory focal point in so far as utilities regulation is concerned.

Logically, it is much more effective to empower the same regulator with a comprehensive regulatory remit to deal with all consumer protection and competition issues that relate to the provision of utility services

Logically, it is much more effective to empower the same regulator with a comprehensive regulatory remit to deal with all consumer protection and competition issues that relate to the provision of utility services.

It is pertinent to note that regulatory regimes similar to what I propose have been introduced with success in various other countries, including countries much larger than Malta such as Spain and the Netherlands.

Another important aspect discussed relates to the contestation of regulatory decisions. At present, regulatory decisions taken by MCA or REWS may be contested by an aggrieved person before the Administrative Review Tribunal (‘ART’) composed of a magistrate assisted by two non-voting technical assistants.

In my thesis I propose that the composition of ART is  changed with the ART being presided by a sitting member of the judiciary together with two other members with technical expertise relating to the provision of utility services, whereby tribunal decisions relating to issues concerning the interpretation of the law and/ or the imposition of sanctions would be taken exclusively by the chairperson, whereas issues relating to technical matters would be taken collectively by the chairperson and the technical members of the ART.

My reasoning is that a final decision where the issues relate to technical issues should be taken collectively, precisely because it involves technical issues which a lawyer ‒ the presiding judge or magistrate ‒ may not necessarily have sufficient knowledge to determine such matters alone. Conversely, issues relating purely to an interpretation of the law or the imposition of sanctions should rest only with the chairperson.

This consideration impacts another issue considered in my thesis – that relating to the imposition of the administrative fines and other punitive sanctions.

An issue that has in recent years significantly impacted regulation in Malta is the role of regulators when sanctions need to be imposed on non-compliant persons.

Since at least the landmark judgment by the constitutional court in the Federation of Estate Agents case, the courts have consistently decided that the imposition of substantial administrative fines are punitive and therefore criminal in nature, arguing that given such circumstances the ordinary laws empowering regulators to impose such fines are in breach of article 39(1) of the constitution, which states that a person accused of a crime is entitled to a fair hearing before a court established by law.

My proposal – controversial in the light of recent court judgments – is that the constitution should be amended, whereby regulators should be empowered to impose sanctions subject to two cardinal norms namely: that regulators are effectively independent, and that any decisions imposing fines are subject to appeal before a court. If an appeal is lodged, the regulatory decision cannot be enforced until there is a final court decision.

Finally, I would like to acknowledge my debt to the scholarship granted to me under the Tertiary Education Scholarship Scheme (TESS) which covered the University of Malta tuition fees throughout the entire period of registration of my studies with the university.