Consultation Outcome: Final Report
Public Consultation outcome report.pdf
Original Consultation
1. Background
The purpose of the
proposed Bill is to make the necessary amendments in the Consumer Affairs Act
in order to:
•
implement Regulation (EU)
2017/2394 of the European Parliament and of the Council of 12 December 2017
(hereinafter referred to as the EU Regulation); and
•
make ancillary and
consequential provisions thereto.
Article 42 of the EU Regulation establishes that the Regulation “shall
be binding in its entirety and directly applicable in all Member States.”
This regulation repeals Regulation (EC) No 2006/2004, which regulation
already provides for harmonised rules and procedures to facilitate cooperation
between the national authorities that are responsible for the enforcement of
cross-border consumer protection laws however more rapid, agile and consistent
enforcement of consumer rules was deemed necessary and new measures have been
introduced in Regulation 2017/2394 to address, in a more effective manner,
enforcement in cases of cross-border infringements, including infringements in
the digital environment.
The EU Regulation lays down the conditions under which national
authorities responsible for the enforcement of consumer protection laws,
cooperate and coordinate actions with each other and with the Commission, in
order to enforce compliance with those laws and to ensure the smooth
functioning of the internal market, and in order to enhance the protection of
consumers’ economic interests.
To implement the EU Regulation, the proposed Bill provides amendments
to:
v the Consumer Affairs Act (Cap. 378), that
include:
• the introduction of “commitments procedure” instead of the present reference to “undertakings”. This
aligns the terminology with the enforcement powers in sub-articles 4(b) and (c)
of Article 9 of the EU Regulation. The judicial process linked to commitments
is also introduced by means of these amendments, which process establishes
that:
Ø at any stage of an investigation or any stage
of judicial proceedings, the Director General (Consumer Affairs) may seek to
obtain or to accept commitments from the person concerned to cease the alleged
infringement within the time limit set by the Director General, including also
on the initiative of the person concerned, additional remedial commitments for
the benefit of consumers that have been affected by the alleged infringement;
Ø the Director General together with the person
concerned, shall have the right to demand that the investigation or the
judicial proceedings, as the case may be, are terminated by means of this
procedure which includes the imposition of a penalty by the Civil Court
(Commercial Section);
Ø the Director General shall reward the person
concerned for the commitments, by reducing between ten to thirty-five percent
the amount of the penalty requested to be imposed by the Civil Court
(Commercial Section);
Ø the commitments submissions which are to be
included in the joint application, shall contain a voluntary statement by the
person concerned, that is to include, among other information, his waiver of
his right to appeal or challenge in any way the commitments procedure and or
the judgement of the Civil Court (Commercial Section) including the penalty;
Ø the termination of the investigation or of the
judicial proceedings as the case may be, shall be granted by virtue of a
judgement delivered by the Civil Court (Commercial Section);
Ø the Civil Court (Commercial Section) shall
reopen the proceedings upon a sworn application by the Director General only
where:
- there
has been a material change in any of the facts on which the judgment was based;
or
- the
person concerned acted contrary to its commitments; or
- the
judgment was based on incomplete, incorrect, or misleading information provided
by the concerned person;
• the additions in the requests that the Director
General (Consumer Affairs) may include in the sworn application, when judicial
proceedings are filed following a prima facie finding of infringement, namely
requests: “(i) to remove content or to restrict access to
an online interface or to order the explicit display of a warning to consumers
when they access an online interface; (ii) to order a hosting service provider
to remove, disable or restrict access to an online interface; or (iii) to order
domain registries or registrars to delete a fully qualified domain name and to
allow the competent authority concerned to register it;” with regard to the
enforcement powers in sub-article 4(g) of Article 9 of the EU Regulation;
• the addition of new orders that may be issued
by the Civil Court (Commercial Section) that basically reflect the same new
above-mentioned requests;
• the introduction of the Director General’s new
obligation to publish the decisions delivered by the Civil Court (Commercial
Section) on the website of the Malta Competition and Consumer Affairs Authority
relative to sub-article 7 of Article 9 of the EU Regulation; and
• the updating of the Director General’s power of entry of inspection, including the
addition of the power to purchase goods or services as test purchases, where
necessary, under a cover identity and the updating of the power to obtain
information with regard to the investigation powers in sub-article 3 of Article
9 of the EU Regulation;
v the Malta Competition and Consumer Affairs
Authority Act (Cap. 510) that include:
• the amendment of the provision relative to the
identification and protection of confidential information to ensure that both
the “the addressee of an invitation by the Director
General to engage in commitments discussions under article 12A of the Consumer Affairs
Act“ and “any person including a qualified entity making a reasonable
allegation in writing according to article 12(1) of the Consumer Affairs Act.”
are included in the list relative to article 29;
• the update of the transitory provision
relative to the Consumer Affairs Act in view of the replacement of the
undertaking process by the new commitments procedure; and
• the amendment of the Third Schedule to the
Consumer Affairs Act that is related to article 18 thereof, and that contains
the list of EU Legislative Acts for the purpose of which the Office for
Consumer Affairs is the National Competent Authority.
v In addition to the above, the following
additional amendments are being proposed:
• In the Consumer Affairs Act:
Ø the update of the procedure relative to an
application by the Director General (Consumer Affairs) for the issue by the
Civil Court (Commercial Section) of interim measures, that may be filed also at
any stage of the judicial proceedings in addition to during any stage of the
investigation process, to serve as a means, if acceded to by the Civil Court
(Commercial Section) so that the person concerned remedies the situation in
cases of urgency due to the risk of immediate and serious harm to the
collective interests of consumers, even during the judicial process; and
Ø the increase of the value of the claims that
may be filed before the Consumer Claims Tribunal from €3500 to €5000. This increase is necessary so that it is
aligned to the one relative to the Small Claims Tribunal;
• In the Consumer Claims Tribunal
Rules (S.L.378.01) consequential amendments have been introduced in connection
with the increase in the value of the claims, as well as updates in the fees
payable with regard to the filing of such claims in the Registry of the
Consumer Claims Tribunal.
• In the Credit Agreements for
Consumers relating to Immovable Residential Property Regulations (S.L.378.10),
the European Banking Authority Guidelines on the Requirements regarding Arrears
and Foreclosure (EBA/GL/2015/12) have been included.
• In the Code of Organization and Civil
Procedure (Cap. 12) the fees payable to the Registry of the Superior Courts of
Malta with regard to the judicial acts filed by the Director General (Consumer
Affairs) during the judicial proceedings before the Civil Court (Commercial
Section) has been amended.