Article 39 (1) of the Maltese Constitution guarantees the individual’s right, whenever charged with a criminal offence, to a fair hearing only before an independent and impartial court and no other administrative set-up. This safeguard is superior, and allowed to be so.

Crucial parts of the Competition Act, introduced in 2011, have been declared to be inconsistent with Article 39 (1). This debilitated the Competition Office. 

Two approaches are suggested to resolve this. 

One proposes amending Article 39 (1).  No precise details have been published except that the Article 6 (1) model of the European Convention may be used as an “inspiration”. This means that instead of amending the ordinary law, which was declared to be inconsistent with the human rights provisions of the Constitution, the Constitution is amended to accommodate the ordinary law. 

It is argued that this route would safeguard the position of other public authorities, which as things stand, might be equally challenged before the court and end up powerless like the Competition Office. 

This point was raised before the Civil Court (constitutional jurisdiction) in the estate agents case. The court defended the individual’s right that a fair hearing should only take place before a court. Moreover, it was concerned that offences of a criminal nature were being decided by public authorities rather than courts as this meant that human rights as protected by the Constitution were being eroded. 

The message of the court is clear: the Constitution should be respected and not sacrificed for the sake of efficiency.

The second approach proposes to amend the Competition Act leaving the rights of an individual as protected in Article 39 (1) intact. A Bill is currently before Parliament. 

The Bill enhances the principle of impartiality. The director general of the Competition Office, a public employee, is appointed for a three-year period by the board of the Consumer Authority after consultation with the minister. By and large other public regulators have similar set-ups. 

The Bill integrates the enforcement of competition law into the Maltese legal system leaving the consumer’s wider rights as protected in the Constitution untouched

The civil and the constitutional courts noted that the director general has the combined functions of investigator, prosecutor, judge and imposer of fines. The functions of the Competition Office will now be restricted to investigating and prosecuting before the court, which in turn will decide the case and impose a fine. 

Independence and impartiality of the court is guaranteed by the Constitution as members of the judiciary have security of tenure and are separate from the executive. 

The Bill has been criticised that if approved all “consumer” law infringements will end up before the court. I find this remark strange. Through another opinion piece ‘Pursuing consumer rights’ (March 15) I had illustrated that this is not new and has been in place for quite some time. Also, currently regulatory decisions may, on appeal, still end up in court.

Concerns have been expressed regarding a company’s right of defence during the conduct of a dawn raid on business premises. 

Recently, an EU directive was incorporated into Maltese law establishing that in an action for damages the court may order the disclosure of evidence included in the files of the Competition Office. 

I refer to a case which took place recently in France where the appellate court annulled a decision to conduct a dawn raid against a retailer because he was denied access to contact his lawyer. This resulted in all seized material being returned by the authorities and not used for the purpose of their investigations. 

One hopes that any suggestions made are in line with the Constitution so that investigations and also claims for compensation are not compromised. 

Crucial changes are proposed for complaint handling. The director general may refuse to investigate a complaint if there are insufficient grounds or “for some other reason”. He will not be obliged to give the complainant a reason. Although this may be appealed, court procedures and fees may discourage complainants from doing so. The reason for changing this part of the law is unclear as it was not declared unconstitutional by the court.

The Bill suggests that before the court issues a judgment declaring commitments by an undertaking it seeks views from market players. Apart from placing a notice on The Malta Government Gazette it may contemporaneously be placed on the MCCAA’s website and that of recognised consumer organisations for greater outreach. 

The relevance of amending the Voluntary Organisations Act to the scope of the Bill is unclear.

To conclude, the Bill integrates the enforcement of competition law into the Maltese legal system leaving the consumer’s wider rights as protected in the Constitution untouched. However, the revised complaint handling mechanism lacks transparency and may suffocate competition issues at their embryonic stage.

Antoine Grima lectures consumer law at the Faculty of Laws at the University of Malta.

This is a Times of Malta print opinion piece


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