Updated as at 08/03/18
On the 13th October 2017 amendments to the Competition Act were made by means of Act XXV of 2017 (“Amendment Act”). These amendments strengthened the action for damages for a breach of Competition Law under Maltese law and EU law.
The amendments made to the Competition Act included the insertion of a schedule entitled “Competition Law Infringements (Actions for Damages) Regulations” (“Regulations”). These Regulations implemented the provisions of Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (“Directive”).
The text of the Directive was already implemented into Maltese law earlier on this year by means of Legal Notice 117 of 2017 (“Legal Notice”). However, it was decided that the regulations should be included as a schedule to the Competition Act. Furthermore, by means of the Amendment Act, the Minister was granted the power to amend or substitute the schedule to the Competition Act, after consultation with the Board of Governors (as established under the Malta Competition and Consumer Affairs Authority Act). In this way, if any further amendments are made to the Directive, these changes can be readily reflected in Maltese Law through amendments of the schedule by the Minister, as opposed to passing the text through the process of three readings in parliament.
In essence, not many changes were made to the text contained in the Legal Notice. However, the Amendment Act did introduce the right to full compensation for any natural or legal person who has suffered damage caused by an infringement of competition law which includes actual loss and loss of profits as well as interest payment, provided this does not lead to over-compensation. In addition, the Amendment Act introduces the possibility for the Court seized of an action for damages to impose penalties on any party with regard to breaches or default of that party in the proceedings (for e.g. refusal to comply with a disclosure order of the court; destruction of evidence etc). It is these penalties which have been capped at EUR 100,000 for every breach or default and a daily fine of EUR 10,000 in respect of each day during which these breaches or default continue.
The availability of recourse to damages for breaches of this nature is crucial to maintaining competition within the European Single Market.