|I. ADMINISTRATIVE ENFORCEMENT
|Which administrative mechanisms are available to enforce the UCP Directive?
The main provisions of the UCP Directive were transposed into Maltese Law by Act II of 2008 which amended the Consumers Affairs Act (Chapter 378 of the Laws of Malta) - the " Main Act". Act II of 2008 introduced Part VII in the Consumer Affairs Act which deals with Unfair Commercial Practices and Illicit Schemes.
The main administrative mechanism in place to enforce the UCP Directive is embodied in the role of Director of Consumer Affairs (the "Director") who shall be a public officer designated by the Prime Minister for that purpose (vide Article 3 of the Main Act) having also certain quasi-judicial/executive powers.
The relevant entity tasked with such matters is the Consumer Affairs Directorate (consumer and competition division of the office of the Prime Minister) which have a number of complaints officers dedicated to recieving complaints and carrying out all related functions thereto.
If the Director becomes aware of an infringement of the unfair commercial practices provisions, the Director has the power to carry out investigations of his own motion or upon a reasonable allegation in writing of a breach of the provisions of this Act and any regulations made thereunder (Article 12 A). Moreover, Article 14A provides that the Director shall write to the person investigated informing him of the nature of the alleged infringement and granting the person concerned a period of not less than fifteen days as the Director may determine to be appropriate in the circumstances during which period the person concerned may make his submissions to the Director. The Director may:
(a) require the person concerned to furnish evidence as to the accuracy of factual claims in relation to a commercial practice if, taking into account the legitimate interest of the person concerned and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case; and
(b) consider factual claims as inaccurate if the evidence demanded in accordance with paragraph (a) of this proviso is not furnished or is deemed insufficient by the Director.
If after the investigation the Director is of the opinion that a breach of a provision of the Consumer Affairs Act has occurred, he is to issue a decision finding an infringement, giving his reasons or else he may seek an undertaking from the trader.
|Who can file administrative complaints?
Administrative complaints can generally be filed by any natural or legal person. In most cases there is no need to prove juridical interest as the complaint serves mainly to bring the matter in question to the attention of the Director or the Consumer Affairs Directorate (or any person the Director may delegate certain functions to).
In certain cases, only certain entities qualify to make certain types of 'complaint'. For example, to ask the Director to issue a compliance order under Article 94 of the Main Act, the written application must be sent to the Director by a "qualified entity" which is defined in article 2 of the Main Act (omitting among other things individual consumers or natural persons from the definition). Having said that, individuals can always bring the matter before the attention of any such 'qualified entity' (including for example registered consumer associations) which would then act on the individual's behalf.
According to Article 37 of the Consumer Affairs Act, such associations are given the following power:
37. (1) A registered consumer association may in its own name make reports or complaints to the competent authority on any breach of this Act, any law administered by the Director or any such laws or regulations as the Prime Minister may from time to time determine by notice published in the Gazette.
|Do any specific procedural requirements apply to filing administrative complaints?
We are not aware of any specific procedural requirements for filing adminsitrative complaints with the Director or with the Consumer Affairs Directorate other than filling out the form as found on the website of the Consumer Affairs Directorate (as can be downloaded from http://finance.gov.mt/page.aspx?site=CCD&page=complaint_form).
|Do the administrative authorities have an obligation to investigate the complaint?
with respect to consumers, Article 3(3) of the Consumer Affairs Act states that:
“(3) Nothing in this Act shall be construed to give any consumer a right to require the Director to give him advice on any specific or general matter or to act on his behalf and in his interest in any particular matter or dispute with any trader or supplier of services before any court, tribunal or elsewhere.
With respect to complainants more generally (including other traders) it is worth noting that Article 12A gives the Director the power to start investigations of his own motion or else upon reasonable allegation in writing of a breach of the provisions of the Main Act (and regulations made thereunder) but not a duty to do so. In other words, it is within the Director's discretion whether or not to take such action under the said provision (subject to other remedies available to complainants).
|Are there any specific requirements regarding the provision of evidence to the competent authorities?
The Main Act does not contain specific requirements regarding the provision of evidence to the competent authorities by complainants but it does contain certain such provisions relating to the alleged infringer/person being investigated by the Director.
14A. of the Main Act in fact states (in sub-Article (1)) that:
"Upon commencing investigations in terms of article
12A concerning an alleged infringement of a provision of this Act
or of any regulations made thereunder, the Director shall write to
the person investigated informing him of the nature of the alleged
infringement and granting the person concerned a period of not less
than fifteen days as the Director may determine to be appropriate in
the circumstances during which period the person concerned may
make his submissions to the Director:
Provided that the Director may:
(a) require the person concerned to furnish evidence as to
the accuracy of factual claims in relation to a
commercial practice if, taking into account the
legitimate interest of the person concerned and any
other party to the proceedings, such a requirement
appears appropriate on the basis of the circumstances
of the particular case; and
(b) consider factual claims as inaccurate if the evidence
demanded in accordance with paragraph (a) of this
proviso is not furnished or is deemed insufficient by
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?
Generally speaking, in terms of the UCP Directive the Civil Court serves mainly as a residual remedy (via appeals, direct actions for damages etc.) since the main remedy in case of breach of the provisions of the Directive emerges from the functions of the Director as explained above.
Moreover, as illustrated in this report in these situations the more common actions that are taken in court are usually criminal in nature.
|Who can start a court action?
Article 13 of the Consumer Affairs Act provides that when an investigation relates to
an offence under this Act or any regulations made thereunder, criminal proceedings may only be instituted at the instance of the Director. The Director or an official of the Department duly authorized to act in his stead, may conduct the prosecution before the Court of Magistrates.
Article 107 (which has been in force since 2000) contains following general remedies:
"Where the court finds that a person has committed an
offence under this Act or regulations made thereunder, the court
may, without prejudice to any other order it may make under any
other law -
(a) order the restitution of any money, property or other
consideration given by the consumer;
(b) make an order of specific performance against that
(c) make any other order the court considers appropriate."
|Can court actions be initiated by competitors?
In respect of civil cases, competitors can only bring a civil suit against alleged infringeres (on the basis of general principles of civil law) if they can prove legitimate interest and that they suffered damage(s).
As stated above, criminal proceedings may only be instituted at the instance of the Director. The Director of an official of the Department duly authorized to act in his stead, may conduct the prosecution before the Court of Magistrates (vide article 13 of the Main Act)
|Can the case be handled through an accelerated procedure?
There is no mention of such a procedure in respect of the specific subject-matter in question. Having said that, there exists a residual remedy which is common in all cases. In all cases in fact, a Court may be asked to expedite the hearings as long as there is justification for it. Having said that, it remains within at the Court's discretion whether or not to exceed to such request since, by and large, all types of proceedings are not per se regularised in such a way as to outline a time-frame for a Court within which to issue a decision (with some exceptions such as in certain criminal proceedings and other ad hoc remedies).
|Are there any specific requirements regarding the provision of evidence to the court?
Article 13 provides that should the evidence of the Director or of the official conducting the prosecution be required as part of the case of the prosecution he shall be heard before any other witness unless the necessity of giving evidence results later in the proceedings.
In respect of the procedure for providing evidence to the Court in such matters, the issue would usually be regulated by the general provisions on evidence contained the Maltese Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta).
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?
If the case is brought before the Court because of an infringement of the Main Act and the Courts finds that a person has committed an offence, the Court may, according to Article 107 of the Consumer Affairs Act,
(a) order the restitution of any money, property or other consideration given by the consumer;
(b) make an order of specific performance against that person; and
(c) make any other order the court considers appropriate.
|What are the possible criminal sanctions for the infringement of the UCP provisions?
According to Article 106 to the Consumer Affairs Act :
“A person guilty of an offence against this Act or of any regulation made thereunder shall, unless a different punishment is prescribed therefor, on conviction be liable to a fine (multa) or not less than four hundred and sixty-five euro and eighty-seven cents (€465.87) and not more than forty-six thousand five hundred and eighty-seven euro and forty-seven cents (€46,587.47).
|What are the possible administrative sanctions for the infringement of the UCP provisions?
The Director may also order any trader who infringes the Unfair Commercial Practices provisions to cease or desist from such acts (vide the provisions cited in this report). Moreover, the Director can impose an administrative fine upon a person who after an investigation is found to have committed an infringement of a provision of the Act (or regulation made thereunder) which shall be not less that €465.87 and not more than €46,587.47 (Article 106A.). In the case of non-compliance with a compliance order the Director may also impose a daily fine of not more than two hundred and thirty-two euro and ninety-four cents (€232.94) for each day of non-compliance (Article 106A - Proviso).
Where the Director issues a decision finding an infringement under article 14A, he may, without prejudice to any other remedy provided for under this Act, order the restitution of any money or property given by the consumer (Article 107A).
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?
The situation in Malta is quite similar to that in Belgium. In Malta, unfair commercial practices (as defined in the Consumer Affairs Act/Commercial Code) can be terminated by the Director in the ways illustrated elsewhere in this report.
Although the Director may commence investigations for breaches of the Main Act on his own motion, the matter is usually brought to his attention by a written complaint. This complaint usually originates from competitors (who are not parties to the individual transaction with the consumer). It is a general principle of law that Judicial (or quasi-judicial) decisions only produce effects between the parties involved and therefore, consumers would not be affected by such decisions. Without prejudice to the other remedies available as outlined above, consumers who feel that they have suffered damages as a result of the unfair commercial practice in question would have to start separate civil proceedings to this effect. They may even allege that the contract is void because it has been concluded with a mistaken consent. Similarly to the Belgian position therefore, one might allege in Malta that a contract is null on the basis of vitiated consent originating from inter alia error, fraud or violence. As stated above, any damages claimed would have to proven (even though certain limited forms of moral damages may be awarded in certain specific cases).
|How can consumers get redress/compensation (e.g. through collective actions)?
The Consumer Affairs Directorate within the Consumer and Competition Division deals with consumer complaints regarding purchases of goods and services, including complaints regarding unfair commercial practices. In case of failure in reaching amicable settlements with the trader in question, the consumer may elect to submit the unresolved case to the Consumer Claims Tribunal.
Although collective actions are not generally allowed under Maltese legislation, a consumer has the right to file a claim against the trader before the Consumer Claims Tribunal but only after he has made a complaint to the Directorate or to the Registered Consumer Association. According to the Consumer Claims Tribunal Rules (Subsidiary Legislation 378.01), the claimant must file a note by the Director of Consumer Affairs or by the registered consumer association, together with the Notice of Claim which has to be made to initiate proceedings, which stated that the claim has been referred to the Director or the registered consumer association and that no settlement was achieved.
The Tribunal has jurisdiction to hear and determine claims made by consumers against traders where the value of the claim, exclusive of interests and costs, does not exceed the amount of €3,494.06. If the value of the claim exceeds such amount the consumer can either file his claim in the First Hall Civil Court or else he may pursue his claim before a Tribunal if he declares that he is abandoning the amount of his claim. The claim must relate to, arise out or concern, whether directly or indirectly, the purchase or hire of goods by a consumer from a trader or the provision of services by a trader to a consumer. It is debatable whether or not consumers may invoke the provisions of the Directive in question in such cases without being able to prove all the 'presupposti' or pre-requisites for filing a civil lawsuit more generally (interest, damage suffered, causal link between act of trader and damage suffered etc.)
The consumer has a right to appeal from a decision of the Tribunal to the Court of Appeal (Inferior Jurisdiction). According to the Consumer Affairs Act, independently of the amount of the claim, an appeal shall lie:
(a) on any matter relating to the jurisdiction of the Tribunal; or
(b) on any question of prescription; or
(c) where the tribunal has acted contrary to the rules of natural justice and such action has prejudiced the rights of the appellant.
A right of appeal on all grounds also lies where the amount of the claim in dispute exceeds €1,200. If the Court of Appeal finds that the grounds for appeal are justified, it shall quash the decision of the Tribunal and then it will itself determine the original claim and any counter claim. If the application is considered as frivolous or vexatious, the Court of Appeal may dismiss the appeal and order the appellant to pay a penalty.
|Can the administrative authorities or the courts require the publication of their decisions?
The decisions of the Maltese Civil Court (at first instance and at Appeal) are always published and are freely available to the public (at the Court Archives or even Online for certain judgments pre 2002 and all judgments thereafter). The decisions of the Consumer Claims Tribunal are also published (albeit mostly in summarised form). Certain entities regulated by the Main Act also have the duty to publish decisions. For example acccording to Article 110D. (1) In determining an appeal the Appeals Board (which hears among other things appeals from decisions taken by the Director) shall take into account the merits of the appeal, and may in whole or in part, confirm or annul the decision, order or measure appealed from, giving in writing the reasons for its decision and shall cause such decision to be made public and communicated to the parties to the appeal.
With respect to the Director, as previously indicated in this report, according to Article 14A(2) Where, upon the conclusion of an investigation, having considered the submissions, if any, made to him under subarticle (1), it results to the Director that a breach of a provision of this Act
or of any regulations made thereunder has occurred, he shall issue a decision finding an infringement, giving his reasons therefor:
Provided that, the Director may, instead of a decision finding an infringement, seek an undertaking from the trader in terms of article 12.
(3) A copy of the decision issued under subarticle (2) shall be served upon the person against whom the decision is taken.
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?
To our knowledge, there are no specific self-regulatory enforcement systems in Malta which deal specifically with aspects of the UCP Directive other than those entities already mentioned in this report.
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?
The main mediating services in Malta stem from the Consumer Affairs Direcorate whose website on this matter states generally as follows:
"Investigation of Complaints
After having gone through the case, the complaints handling officer will initiate mediation in order to resolve the matter amicably. The trader is contacted and informed of the complaint made against him. The complaints handling officer will evaluate the case properly to see whether the case is justified or otherwise. If the case is justified, the trader will be asked to offer the consumer adequate compensation. In the event that the trader is unwilling to comply and the matter remains unresolved, the Consumer Affairs Act provides the consumer with the option of taking the complaint one step further and seek redress at the Consumer Claims Tribunal.
In the absence of necessary evidence about the complaint the consumer id advised to withdraw the complaint. In such circumstances if the consumer elects to submit the case to the Consumer Claims Tribunal, and if the Arbiter finds out that the claim or defence deemed to be trivial and frivolous, the Tribunal may order a penalty of not more than 116.47 Euros to be paid to the other party."
Although there is nothing specific on the UCP Directive, it can be assumed that a similar procedure to that explained above would be applied to the case at hand.