Chapter 378 – Consumer Affairs Act
What is this act about?
Din il-liġi tistabbilixxi l-qafas għall-affarijiet tal-konsumatur, inklużi s-setgħat tad-Direttur Ġenerali, il-ħolqien ta' Kunsill għall-Affarijiet tal-Konsumatur, u t-twaqqif ta' Tribunal għat-Talbiet tal-Konsumatur. Hija tirregola diversi aspetti tal-protezzjoni tal-konsumatur u l-kummerċ ġust.
Who it applies to: Individwi li jaġixxu għal skopijiet mhux relatati mal-kummerċ, in-negozju, is-sengħa jew il-professjoni tagħhom (konsumaturi); Kwalunkwe persuna, inklużi korpi korporattivi jew inkorporati, li jaġixxu għal skopijiet relatati mal-kummerċ, in-negozju, is-sengħa jew il-professjoni tagħhom (negozjanti).
At a glance
- Country
- Malta
- Area of law
- Procedural law
- Articles
- 169
- Source
- legislation.mt
- Text retrieved
- Explanation updated
What does this act regulate?
- Is-setgħat u r-responsabbiltajiet tad-Direttur Ġenerali (Affarijiet tal-Konsumatur).
- It-twaqqif u l-funzjonijiet tal-Kunsill għall-Affarijiet tal-Konsumatur.
- Il-proċedimenti ġudizzjarji quddiem il-Qorti Ċivili u t-Tribunal għat-Talbiet tal-Konsumatur.
- Prattiċi kummerċjali inġusti, skemi illeċiti, u responsabbiltà għal prodotti difettużi.
Who does this act apply to?
- Individwi li jaġixxu għal skopijiet mhux relatati mal-kummerċ, in-negozju, is-sengħa jew il-professjoni tagħhom (konsumaturi).
- Kwalunkwe persuna, inklużi korpi korporattivi jew inkorporati, li jaġixxu għal skopijiet relatati mal-kummerċ, in-negozju, is-sengħa jew il-professjoni tagħhom (negozjanti).
What are the key points?
- Id-Direttur Ġenerali huwa responsabbli għall-amministrazzjoni ta' din il-liġi u l-investigazzjonijiet.
- Il-Kunsill għall-Affarijiet tal-Konsumatur jikkonsisti minn president u ħames membri oħra, maħtura mill-Ministru għal terminu ta' mhux aktar minn tliet snin.
- Il-funzjonijiet tal-Kunsill jinkludu li jagħti pariri lill-Ministru dwar il-promozzjoni tal-interessi tal-konsumatur u li jimmonitorja l-infurzar tal-liġijiet.
- Persuna ma tistax tkun membru tal-Kunsill jekk tkun membru tal-Kamra tad-Deputati, inkapaċitata legalment, falluta, jew instabet ħatja ta' ċerti reati.
Procedural law
Legal text
Legal text
Contents (169)
- Art. 1
- Art. 2
- Art. 3
- Art. 4
- Art. 5
- Art. 6
- Art. 7
- Art. 7A
- Art. 8
- Art. 9
- Art. 9A
- Art. 10
- Art. 11
- Art. 12
- Art. 12A
- Art. 12B
- Art. 12C
- Art. 12D
- Art. 12E
- Art. 12F
- Art. 12G
- Art. 12H
- Art. 12I
- Art. 13
- Art. 14
- Art. 14A
- Art. 14B
- Art. 15
- Art. 16
- Art. 17
- Art. 18
- Art. 19
- Art. 20
- Art. 21
- Art. 22
- Art. 23
- Art. 24
- Art. 25
- Art. 25A
- Art. 26
- Art. 27
- Art. 28
- Art. 29
- Art. 30
- Art. 31
- Art. 32
- Art. 33
- Art. 34
- Art. 35
- Art. 36
- Art. 37
- Art. 38
- Art. 39
- Art. 40
- Art. 41
- Art. 42
- Art. 43
- Art. 43A
- Art. 43B
- Art. 43C
- Art. 43D
- Art. 43E
- Art. 43F
- Art. 43G
- Art. 44
- Art. 45
- Art. 46
- Art. 47
- Art. 47A
- Art. 47B
- Art. 47C
- Art. 48
- Art. 49
- Art. 50
- Art. 51
- Art. 51A
- Art. 51B
- Art. 51C
- Art. 51D
- Art. 51E
- Art. 51F
- Art. 51G
- Art. 51H
- Art. 51I
- Art. 51J
- Art. 52
- Art. 52A
- Art. 53
- Art. 54
- Art. 55
- Art. 55A
- Art. 56
- Art. 57
- Art. 58
- Art. 59
- Art. 60
- Art. 61
- Art. 62
- Art. 63
- Art. 64
- Art. 65
- Art. 66
- Art. 67
- Art. 68
- Art. 69
- Art. 70
- Art. 71
- Art. 71A
- Art. 72
- Art. 73
- Art. 73A
- Art. 74
- Art. 75
- Art. 76
- Art. 77
- Art. 78
- Art. 78A
- Art. 79
- Art. 80
- Art. 81
- Art. 82
- Art. 83
- Art. 84
- Art. 85
- Art. 86
- Art. 87
- Art. 88
- Art. 89
- Art. 90
- Art. 91
- Art. 92
- Art. 93
- Art. 93A
- Art. 93B
- Art. 93C
- Art. 94
- Art. 95
- Art. 96
- Art. 97
- Art. 98
- Art. 99
- Art. 100
- Art. 101
- Art. 102
- Art. 103
- Art. 104
- Art. 104A
- Art. 105
- Art. 106
- Art. 106A
- Art. 107
- Art. 107A
- Art. 107B
- Art. 108
- Art. 109
- Art. 110
- Art. 110A
- Art. 110B
- Art. 110C
- Art. 110D
- Art. 110E
- Art. 110F
- Art. 110G
- Art. 110H
- Art. 111
- Art. 112
- Art. 113
- Art. 114
- Art. 115
CONSUMER AFFAIRS
CHAPTER 378
CONSUMER AFFAIRS ACT To provide for the powers of the Director General (Consumer Affairs), for the establishment and functions of a Consumer Affairs Council and for the establishment and jurisdiction of the Consumer Claims Tribunal and for other matters ancillary or consequent thereto.
23rd January, 1996 ACT XXVIII of 1994 as amended by Acts V of 1995, XIX of 1996, XXVI of 2000, VI of 2001 and XV of 2006; Legal Notice 425 of 2007; Acts II of 2008, XIV of 2009, and VI and IX of 2011; Legal Notice 426 of 2012; and Acts VI of 2014, XXX of 2015 and XXX of 2016XVI of 2019, XXI of 2020, XLIV of 2021 and I and XIII of 2022 and XVII and XXIV of 2023 and Legal Notice 212 of 2023.
ARRANGEMENT OF ACT
PART I
PART II
PART IIA PART IIB
PART III
PART IV
PART V
PART VI
PART VII
PART VIII
Preliminary Director General (Consumer Affairs) and the Consumer Affairs Council Judicial proceedings before the Civil Court and the Court of Appeal Criminal proceedings and related provisions Consumer Claims Tribunal Consumer associations Declaration of principles Consumer Alternative Dispute Resolution Unfair contract terms Unfair commercial practices and illicit schemes
Title I - Unfair commercial practices
Title II - Illicit schemes
Liability for defective products Sale of Goods to consumers Compliance orders
PART IX
PART X
PART XI
Investigative powers
PART XII
PART XIIA Offences, Penalties and related provisions
PART XIII
Miscellaneous First Schedule Commercial practices which are ipso jure unfair Second Schedule Administrative fines Third Schedule Public entities Articles 1-2 3 - 15 12C-12I 13-15 16 - 27 28 - 42 43A - 43G 44 -47C 48 - 51J 52 - 55A 56 - 71A 72 - 93C 94 - 101 102 - 110 106-110H 111 - 115 CONSUMER AFFAIRS
PART I
Preliminary Short title.
Art. 1
The short title of this Act is the Consumer Affairs Act.
Interpretation.
Amended by:
V. 1995.20;
XXVI. 2000.2;
XV. 2006.3;
II. 2008.5, 6;
VI. 2011.75;
XXX. 2015.2;
XXX. 2016.2;
XVI.2019.6;
XLIV. 2021.3;
XVII.2023.26.
Art. 2
In this Act, unless the context otherwise requires - S.L. 12.19. "ADR" means alternative dispute resolution; "advertisement" means any form of representation, including a catalogue, a circular and a price list, about a trade, business, craft or profession in order to promote the supply or transfer of goods or s e r v i c e s , i m m o v a b l e p r o p e r t y, r i g h t s o r o b l i g a t i o n s a n d "advertising" shall be construed accordingly; "the Authority" means the Malta Competition and Consumer A ff a i r s A u t h o r i t y a s e s t a b l i s h e d b y a r t i c l e 3 o f t h e M a l t a Competition and Consumer Affairs Authority Act; "the Board" means the Board of Governors as established by article 8 of the Malta Competition and Consumer Affairs Authority Act; "Civil Court" means the Civil Court (Commercial Section) established by article 3 of the Civil Courts (Establishment of Sections) Order; "consumer" means (i) any individual who in transactions and other matters covered by this Act or any regulations made thereunder, is acting for purposes which are not related to his trade, business, craft or profession; and (ii) any other individual not being the immediate purchaser or beneficiary, and whether or not a member of the consumer’s household, who having been expressly or tacitly authorised or permitted by the consumer, may have consumed, used or benefited from any goods or services provided to the consumer by a trader acting in the course of a trade, business, craft or profession, including goods or services provided as part of gift schemes and similar or analogous inducements; and (iii) any other class or category of persons whether natural or legal as may, from time to time, be designated as "consumers" for all or for any of the purposes of this Act by regulations made by the Minister after consulting the Council:
Provided that for the purposes of Title I of Part VIII of this Act, the definition of "consumer" shall only consist of paragraph (i) above; "consumer association" means a voluntary body of persons whose principal objective is the promotion of consumer protection or education;
CONSUMER AFFAIRS "Consumer Protection Co-operation Regulation" means Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No. 2006/2004:
Provided that for the purposes of the implementation of the Consumer Protection Co-operation Regulation, the definitions contained therein shall apply, without prejudice to the definitions contained in this Article; "Council" means the Consumer Affairs Council established under Part II of this Act; "the Director General" means the Director General (Consumer Affairs) as appointed by article 16 of the Malta Competition and Consumer Affairs Authority Act; "goods" include any movable property, whether tangible or intangible, that may form the object of trade, including animals and fish of whatever species whether living or dead; "Malta Financial Services Authority" means the Authority established under the Malta Financial Services Authority Act; "Member State" means a State which is a contracting party to the agreement on the European Economic Area signed at Oporto on the 2nd May, 1992 as amended by the Protocol signed at Brussels on the 17th March, 1993 and as amended by any subsequent acts; "Minister" means the Minister responsible for consumer affairs; "Mortgage Credit Directive" means Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No. 1093/2010, as may be amended from time to time, and includes any implementing measures, implementing technical standards, regulatory technical standards, guidelines and similar measures that have been or may be issued thereunder; " t h e O f f i c e " m e a n s t h e O f f i c e f o r C o n s u m e r A ff a i r s a s established under article 16(1) of the Malta Competition and Consumer Affairs Authority Act; "ordinary court" for the purposes of Part III of this Act includes the Small Claims Tribunal established under the Small Claims Tribunal Act; "permanent resident" means a person in whose favour a permit of residence has been issued in accordance with article 7 of the Immigration Act; "premises" means any place from where any trade or business is carried out including any stall or vehicle; "public authority" shall have the same meaning assigned to it in article 2 of the Malta Competition and Consumer Affairs Authority Act; "qualified entity" means - CONSUMER AFFAIRS (a) a registered consumer association; or (b) a voluntary organisation in Malta as the Minister may, after consulting the Council, designate by notice in the Gazette; "registered consumer association" means a consumer association
registered in accordance with Part IV of this Act; "sales contract" means any contract under which the trader transfers or undertakes to transfer the ownership of goods to the consumer and the consumer pays or undertakes to pay the price thereof, including any contract having as its object both goods and services; "services" includes the provision, in the course of or in furtherance of a trade, business, craft or profession, of any kind of educational, professional or instruction courses, facilities for entertainment, amusement, recreation, sports and cultural activities, beauty, health and nutrition-related programmes, hospital and nursing services, accommodation and analogous facilities, of any description, and the performance, in furtherance of a trade, business, craft or profession of any other type of work or action in return for a fee or reward; "services contract" means any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof; "trader" means (i) any person, including any body corporate or incorporate who in relation to any transactions or other matters covered by this Act or regulations made thereunder is acting for purposes relating to his trade, business, craft or profession; (ii) any public body, whether corporate or unincorporate, which provides goods or services to consumers for a fee; (iii) any person to whom article 4 of the Commercial Code applies:
Provided that the Minister after consulting the Council may from time to time by Order published in the Gazette, designate as a "trader" for all or any purposes of this Act, any category or class of persons and any body corporate or incorporate whether established by law or not. Any Order made by the Minister as aforesaid may by like Order be amended, substituted or revoked; "terms" includes any condition or requirements in any contract, notice, guarantee or other statement, whether these are given verbally or in writing; "Tribunal" means a Consumer Claims Tribunal set up under Part III of this Act.
PART II
CONSUMER AFFAIRS Director General (Consumer Affairs) and the Consumer Affairs Council
Art. 3
The Director General shall be responsible for the administration of this Act and investigations according to this Act, and f o r t h e se p u r p o s e s t h e D i r e c to r G e n e r a l s h a l l e x e r c i se t h e responsibilities vested in the Office for Consumer Affairs by article 17 of the Malta Competition and Consumer Affairs Authority Act and by this Act except where competences are assigned to the Civil Court by this Act and by the Malta Competition and Consumer Affairs Authority Act:
Amended by:
VI. 2011.76, Responsibility of the Director General and competences of the Civil Court.
Amended by:
XV. 2006.4;
II. 2008.5.
Substituted by:
VI. 2011.77;
XVI.2019.8.
Provided that the Director General may delegate any of his functions and powers to any officer or employee of the Authority.
Art. 4
Amended by:
XXVI. 2000.3;
II. 2008.7;
VI. 2011.75, 78;
VI. 2014.2.
CONSUMER AFFAIRS (b) is legally incapacitated or interdicted; or (c) has been declared bankrupt or has made a composition with his creditors; or (d) has been convicted of, or found guilty of - (i) (ii) (iii) (iv) any crime affecting public trust; or theft; or fraud; or knowingly receiving property obtained by theft or fraud; or (v) any offence or infringement contemplated in this Act, regulations made thereunder, the Customs Ordinance and the Metrology Act, or any law repealed by any of the said Acts or Ordinances or any law replacing the same.
Functions of the Council.
Substituted by:
VI. 2011.79.
Art. 5
It shall be the function of the Council: (a) to advise the Minister on measures for the promotion and protection of consumer interests; (b) at the request of the Minister, to undertake or commission any study or research which may be necessary to promote consumer protection; (c) to monitor the working and enforcement of laws that directly or indirectly affect the consumer in Malta; (d) to act as a forum for bringing together those public authorities which in the exercise of their functions deal with situations of conflict between traders' and consumers’ interests or have the responsibility to safeguard the interests of consumers, with a view to establishing a closer relationship of co-operation among the said public authorities in furthering the welfare of consumers; (e) to monitor the development of consumer associations in Malta, and to draw up and review rules of practice for registered consumer associations for submission to the Minister; (f) to examine and determine whether a consumer association has the requirements to be a registered consumer association in accordance with this Act; and (g) to perform any other function or duty that may be assigned to it by the Minister or that may be assigned to the Council under this or any other law.
CONSUMER AFFAIRS
Art. 6
Conduct of business of Council.
Any such disclosure shall be recorded in the minutes.
Art. 7
Substituted by:
XXVI. 2000.4.
Amended by:
L.N. 425 of 2007;
II. 2008.8;
VI. 2011.75, 80;
XXX. 2015.3;
XXX. 2016.3;
XVI.2019.9.
CONSUMER AFFAIRS tokens, vouchers, points, stamps or any other form of reward, gift, membership, incentive, inducement or other benefit, whether in cash or in kind, and whether exchangeable, redeemable or otherwise, issued to or distributed to consumers in connection with, whether directly or indirectly, the purchase or hire of goods or services or other consumer transactions; (e) to regulate distance selling arrangements and the conclusion of agreements where the consumer and the trader are at a distance from each other, and for this purpose to set out the procedure for concluding distance selling agreements, to provide for the inclusion or exclusion of particular terms and conditions, to establish a cooling-off period for consumers, to lay down thresholds and exemptions, and to establish minimum consumer rights, and to introduce measures to make offers for such agreements more transparent and informative, and to regulate any other aspect of distance selling; (f) to regulate consumer credit offers and the conclusion of agreements for the provision of credit terms and facilities by traders or other persons to consumers in the course of a trade, business, craft or profession in relation, directly or indirectly, to the sale or offer of goods, immovable property or services, to lay down the form and procedure for making consumer credit agreements, to stipulate and regulate the terms and conditions that may or may not be adopted in such agreements, to lay down thresholds and exemptions, the method of calculating the cost of credit, advertising, and other measures considered necessary or appropriate to establish minimum rights for debtors and to make credit offers more transparent and informative, and to regulate any other aspect of consumer credit arrangements; and (g) to provide for any matters that may be required for the purpose of complying with any international obligations of Malta related to consumer affairs, in particular for the purpose of complying with any requirements however so described of the European Union. (1A) The Minister, acting on the advice of the Malta Financial Services Authority and the Council, may make regulations for the following purposes: (a) to transpose, implement and, or give effect to the requirements of the Mortgage Credit Directive, and may for such purpose introduce provisions that are more stringent than the said Directive in order to protect consumers, provided that such provisions are made in accordance with European Union law, and provided further that such provisions shall not diverge
from those laid down in Article 14(2) and Annex II CONSUMER AFFAIRS
Part A of the said Directive, with regard to standard
pre-contractual information through a European Standardised Information Sheet (ESIS), and Article 17(1) to (5), (7) and (8) and Annex I of the Directive with regard to a common, consistent European Union standard for the calculation of the annual percentage rate of charge (APRC); (b) to provide for powers and functions of the Malta Financial Services Authority in relation to any person or matter regulated by the Mortgage Credit Directive; (c) to enable the Malta Financial Services Authority to impose any application, annual and other fees payable in respect of an admission of a credit intermediary, and to levy charges in respect of any request or other matter that may be submitted to the Malta Financial Services Authority, including the fees and charges in respect of any permission, exemption or other benefit, as well as fees and charges in respect of the regulatory, supervisory or investigative functions of the Malta Financial Services Authority; (d) to enable the Malta Financial Services Authority to make, amend or revoke Credit Intermediaries Rules for the better carrying out of, and to better implement, the provisions of the regulations transposing and, or implementing the Mortgage Credit Directive, and for the purpose of implementing any guidelines, recommendations and decisions issued by the European Banking Authority in terms of Regulation (EU) No. 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority); (e) generally to provide for any other matter ancillary or connected with the above.
Provided that this is without prejudice to the competences assigned to the Civil Court by this Act.
Power to issue guidelines.
Added by:
II. 2008.9.
Amended by:
VI. 2011.75.
Art. 7A
7A. The Director General may from time to time, after consultation with the Consumer Affairs Council, issue guidelines to provide general guidance on the interpretation of the provisions of this Act.
Public warning statements.
Amended by:
XXVI. 2000.5;
VI. 2011.75, 81.
Art. 8
Name of Council or Office not to be used in advertisement.
Amended by:
XXVI. 2000.6;
L.N. 425 of 2007;
VI. 2011.75, 82.
Art. 9
Art. 9A
9A. (1) In promoting good trading practices, the Director General shall, with the approval of the Board, make arrangements for approving codes of conduct and may, in accordance with these arrangements, give his approval to or withdraw his approval from any code of conduct.
Approval of codes of conduct by the Director General and use of official symbol.
Added by:
VI. 2011.83.
Art. 10
Liability of trader for acts of his employees, etc.
Amended by:
II. 2008.10.
Confidentiality.
Amended by:
L.N. 425 of 2007;
VI. 2011.75, 84.
CONSUMER AFFAIRS
Art. 11
Investigations.
Amended by:
XXVI. 2000.7;
XV. 2006.5;
L.N. 425 of 2007.
II. 2008.11;
VI. 2011.75, 85;
VI. 2014.3.
Substituted by:
XVI.2019.10.
Amended by:
XLIV. 2021.4;
XVII.2023.27.
Art. 12
Commitments procedure.
Substituted by:
XLIV.2021.5.
Amended by:
XVII.2023.28.
Art. 12A
12A. (1) At any stage of an investigation initiated according to article 12, or any stage of judicial proceedings instituted according to article 12(5), the Director General may seek to obtain or to accept commitments from the person concerned to cease the alleged infringement, 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:
CONSUMER AFFAIRS Provided that in such instances 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 the commitments procedure which includes the imposition of a penalty by the Civil Court on the person concerned, as provided for in the following provisions of this article.
Provided that in those instances where the investigation concerns more than one person, not all persons concerned who are under investigation or who are subject to judicial proceedings instituted according to article 12(5) must agree to submit to the commitments procedure. In such instances the investigation or the judicial proceedings shall continue with regard to that person or persons concerned who do not agree to submit to the commitments procedure.
Provided that the Civil Court must be satisfied that all the requirements of sub-article (7) are reflected in the joint application:
Provided further that after the Civil Court considers that the requirements of sub-article (7) have all been satisfied, the Civil Court shall appoint a sitting to confirm that the person concerned is not contesting the contents of the commitments submissions and that all the parties concerned express their unconditional willingness to terminate the investigation or the judicial proceedings by means of the commitments procedure, after which sitting, the Civil Court shall pronounce judgement on the basis of the joint application:
Provided further that the joint application shall, solely for information purposes, also be notified to any qualified entity that had alleged the infringement according to article 12(1).
Provided that the Director General shall not be obliged to take into account the replies received after the expiry of that time CONSUMER AFFAIRS limit:
Provided further that at any time during the course of an investigation the person concerned may also request to engage in commitments discussions with the Director General:
Provided further that the decision regarding the initiation of the commitments discussions falls within the exclusive competence of the Director General.
Provided that before the Director General sets a time limit to introduce commitments submissions, the person concerned may be informed of the main elements of the suspected infringement, consisting of: (a) the evidence found; (b) the legal assessment of the facts; and (c) the specific amount of the penalty to be requested by the Director General:
Provided further that before the Director General sets a time limit for the person concerned to introduce commitments submissions, the person concerned may have limited access to the file of the investigation concerning the case which is granted only to the extent that the Director General deems reasonable in view of the objectives of the commitments procedure. If access to the file is granted, the Director General shall provide partial access to the case file by providing non-confidential versions of any specified accessible document listed in the case file at that point in time:
Provided further that if the person concerned fails to submit the commitments submissions within the time limit set by the Director General, it shall be considered that the person concerned has withdrawn from the commitments procedure.
Provided that the information given according to subarticle (5) shall be confidential vis-à-vis third parties, save where the Director General has given a prior explicit authorisation for disclosure:
Provided further that the exchanged documents will only be accessible to other persons concerned who are under investigation or who have been served with a sworn application according to article 12C, if the lack of access to these documents would hinder the rights of defence of these other persons CONSUMER AFFAIRS concerned.
Provided that together with the commitments submissions the joint application shall also include a statement by the Director General:
CONSUMER AFFAIRS (a) agreeing with the commitments submissions of the person concerned; (b) specifying the amount of the penalty he is requesting to be imposed on the person concerned as reduced according to sub-article (9); and (c) requesting the Civil Court to deliver a judgement to terminate the investigation or the judicial proceedings, as the case may be, by means of commitments based on the commitments submissions of the person concerned contained in the joint application and to impose the amount of the penalty as requested by the Director General:
Provided further that the commitments submissions may also include additional remedial commitments for the benefit of consumers that have been affected by the alleged infringement and adequate remedies to the consumers that have been affected by that infringement intended to contribute to removal of the adverse impact on affected consumers. Those remedies may include, inter alia, repair, replacement, price reductions, the termination of contract or the reimbursement of the price paid for the goods or services, as appropriate, to mitigate the negative consequences of the infringement on the affected consumer:
Provided further that this shall be without prejudice to a consumer’s right to seek redress through the appropriate means where the consumer would not have benefited from the remedies that the person concerned may have provided.
Provided that the Civil Court may adjourn two sittings so that within such time the parties would be able to consider the commitments procedure and file a joint application as referred to in sub-article (3):
Provided further that if the Director General and, or the p erson con cerned fail to fil e a j oin t ap pli catio n w ith in the adjourned two sittings allocated by the Civil Court, proceedings against the person concerned shall continue according to the stage where the proceedings before the Civil Court had arrived.
Provided that the penalty, for each infringement, shall not be less than four thousand six hundred and fifty euro (€4,650).
CONSUMER AFFAIRS
Provided that in case where the Director General discontinues the commitments discussions for any reason as provided for in this sub-article or in the case where the person concerned or the Director General, as the case may be, withdraw or discontinue the commitments procedure as provided for in subarticles (5) and (8), the case shall proceed according to the stage where the investigation or proceedings have arrived.
Provided that the foregoing provision of this sub-article is without prejudice to any consumers’ judicial action, with regard to consumer claims or actions for damages, including redress measures according to the Representative Actions (Consumers) Act:
Act No. XVII of 2023.
Provided further that documents and, or information which were already in the possession of the Director General prior to being presented by the person concerned and any information which can be requested by the Director General according to the Act, can be used as evidence by the Director General and before any court of law to establish an infringement of the Act and the regulations made thereunder, against the person concerned or against any other persons concerned or against any other party to the investigation.
Art. 12B
12B. (1) Without prejudice to article 12, a qualified entity may also make a complaint to the Director General that with respect to goods and services (a) the structure of the market concerned or any aspect of that structure;
Complaints of general interest.
Added by:
VI. 2011.86.
Amended by:
XVI.2019.12;
XLIV.2021.6.
CONSUMER AFFAIRS (b) any conduct, whether or not in the market concerned, of one or more than one person who supplies or acquires goods or services in the market concerned; or (c) any conduct relating to the market concerned of customers of any person who supplies or acquires goods or services, is or appears to be significantly harming the interests of consumers.
PART IIA Judicial proceedings before the Civil Court and the Court of Appeal Amended by:
XLIV.2021.7.
Written pleadings.
Added by:
XVI.2019.13.
Amended by:
XLIV.2021.8;
XVII.2023.29.
Art. 12C
shall:
Provided that the Director General may also indicate a specific amount of the penalty either in his sworn application or by a note presented in Court during the judicial CONSUMER AFFAIRS proceedings; and, or (ii) any other remedy as contemplated in this Act; and, or (iii) any other relevant order, including a compliance order or any other order, that may be necessary according to the circumstances of the case including, where appropriate, and where no other effective means are available to bring about the cessation or the prohibition of an infringement under this Act and of any other regulations made thereunder, and in order to avoid the risk of serious harm to the collective interests of consumers: 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; to order a hosting service provider to remove, disable or restrict access to an online interface; or where appropriate, to order domain registries or registrars to delete a fully qualified domain name and to allow the competent authority concerned to register it: including by ordering a third party or other public authority to implement such measures:
Provided that the provisions of article 156 of the Code of Organization and Civil Procedure shall, where applicable, also apply to the sworn application.
Specific powers of the Civil Court.
Added by:
XVI.2019.13.
CONSUMER AFFAIRS
Art. 12D
12D. In judicial proceedings, instituted by the Director General following investigations of commercial practices as defined in article 51A that appear to be unfair in terms of the provisions of Part VIII, the Civil Court may, immediately after the conclusion of the written pleadings: (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 article, is not furnished or is deemed insufficient by the Civil Court.
Interim measures.
Added by:
XVI.2019.13.
Amended by:
XLIV.2021.9;
XVII.2023.30.
Art. 12E
12E. (1) In cases of urgency due to the risk of immediate and serious harm to the collective interests of consumers, the Director General may, at any stage during an investigation initiated according to article 12, or at any stage during the judicial proceedings initiated according to article 12(5), file an application before the Civil Court requesting that interim measures are issued for such period of time to be established by the Civil Court so that the person concerned remedies the situation.
Provided that an appeal filed in accordance with this subarticle shall not have the effect of suspending any interim measures imposed by the Civil Court:
Provided further that the Court of Appeal shall decide on the application filed according to this sub-article in an expedited manner.
Art. 12F
12F. Where the Civil Court delivers a judgement finding an infringement of this Act or of any regulations made thereunder, the Civil Court may, without prejudice to the provisions of article 106A and to any other remedy provided for under this Act, order the restitution of any money or property given by the consumer:
Provided that the Civil Court shall also have the power: (a) 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; (b) to order a hosting service provider to remove, disable or restrict access to an online interface; or (c) where appropriate, to order domain registries or registrars to delete a fully qualified domain name and to allow the competent authority concerned to register it, where no other effective means are available to bring about the cessation or the prohibition of an infringement under this Act and of any other Regulations made thereunder, and in order to avoid the risk of serious harm to the collective interests of consumers:
Provided further that the Civil Court may order a third party or other public authority to implement such measures.
Order by the Civil Court.
Added by:
XVI.2019.13.
Amended by:
XLIV.2021.10.
Compliance orders.
Added by:
XVI.2019.13.
Amended by:
XLIV.2021.11;
XVII.2023.31.
CONSUMER AFFAIRS
Art. 12G
12G. (1) Without prejudice to the provisions of article 106A and of sub-article (8), whether or not at the request of the Director General, the Civil Court may, at its discretion, where it deems it reasonably appropriate or necessary in the public interest, in its judgement finding the person concerned liable of infringing the provisions of this Act or of the regulations made thereunder, issue a compliance order: (a) on the person concerned, requiring:- (i) the deletion or alteration of terms in a consumer contract that the Civil Court considers to be unfair to consumers in accordance with the provisions of
Part VII of this Act; and
(ii) the incorporation of terms in a consumer contract that the Civil Court considers to be necessary for the better information of consumers, or for preventing a significant imbalance between the rights and obligations of the parties, and this to the benefit of consumers; (b) requiring the person concerned engaging or proposing to engage in any unfair commercial practice, to discontinue or refrain from such practice, and, or to take any measures specified in the compliance order, including the making of a corrective statement, within the time specified therein to ensure that the provisions of Part VIII of this Act are complied with; (c) requiring the person concerned to take any measures specified in the compliance order, including the making of a corrective statement, within the time specified in the compliance order to ensure that this Act and any regulations made thereunder or any law dealing with consumer rights and protection as may be designated by Order in the Gazette by the Minister acting after consulting the Council, are complied with; and (d) requiring the person concerned to cease and desist from committing an offence or an infringement of this Act or of any regulations made thereunder or of any other law dealing with consumer rights and protection as may be designated by Order in the Gazette by the Minister after consulting the Council.
CONSUMER AFFAIRS
Provided that with regard to the publication referred to in this sub-article, the Civil Court shall order that this publication is made in at least two daily newspapers and if appropriate, in any other medium of communication, at the expense of the person concerned, after the lapse of twenty days from the judgement and provided that no appeal has been filed:
Provided further that where such publication is not effected as aforesaid by the person concerned, the Civil Court shall authorize the Director General to effect the publication himself, and to recover from the person concerned any expenses incurred.
Art. 12H
12H. (1) Proceedings before the Civil Court shall be held in public with due regard to the protection of confidential information or of business secrets:
Provided that the person concerned, or the Director General, Procedure, judgements and publications.
Added by:
XVI.2019.13.
Amended by:
XLIV.2021.12.
CONSUMER AFFAIRS or the complainant may request the Civil Court to be heard behind closed doors where the submissions to be made or the evidence to be produced is of a confidential nature or contains business secrets:
Provided further that for the purposes of this provision a confidential and a non-confidential version of any written observations and documentary evidence shall be produced and the Civil Court shall verify the confidentiality or otherwise of the information submitted.
The Civil Court may give the parties concerned the opportunity to specify the confidential parts of the judgement or decree which they want to be excluded from publication:
Provided that the Civil Court shall ultimately decide about which version shall be published:
Provided further that the Director General shall also publish on the website of the Authority the judgement delivered by the Civil Court.
Art. 12I
12I. The Director General and, or any party to the proceedings before the Court, who feels aggrieved by the judgment of the Civil Court, may appeal before the Court of Appeal, on any point of law and, or of fact, by means of an application filed in the registry of the Court of Appeal within twenty days from the date of the judgment of the Civil Court:
Appeals to the Court of Appeal and publication of judgements.
Added by:
XVI.2019.13.
Amended by:
XIII.2022.3 Provided that the Court of Appeal shall appoint the case for hearing by not later than six months from when the appeal application is served on all the parties:
Provided further that the Court of Appeal shall publish any judgement having regard to the legitimate interest of the person concerned in the protection of his business secrets or other confidential information. The Court of Appeal may give the parties concerned the opportunity to specify the confidential parts of the judgement which they want to be excluded from publication:
Provided further that the Court of Appeal shall ultimately decide which version shall be published:
Provided further that the Director General shall also publish on the website of the Authority the judgement delivered by the Court of Appeal.
PART IIB Criminal proceedings and related provisions Added by:
XVI.2019.14.
Art. 13
Criminal proceedings.
Amended by:
XXVI. 2000.8;
II. 2008.13;
VI. 2011.75, 87;
XLIV.2021.13.
Art. 14
Amended by:
L.N. 425 of 2007;
II. 2008.14;
VI. 2011.88.
CONSUMER AFFAIRS pecuniary loss, and (b) a sum of not less than thirty five euro (€35) and not more than seven hundred and fifty euro (€750) as moral damages for any pain, distress, anxiety and inconvenience, suffered by the aggrieved consumer as a result of the offence or arising therefrom.
Court orders.
Added by:
II. 2008.15.
Amended by:
XIV. 2009.2;
VI. 2011.75;
XVI.2019.15.
Substituted by:
XVI.2019.15.
Art. 14A
14A. Where the court finds that a person has committed an offence under this Act or under any regulations made thereunder, the Court may, without prejudice to any other order that 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 person; and (c) make any other order the court considers appropriate.
Interim measures.
Added by:
II. 2008.15.
Amended by:
VI. 2011.75, 89.
Art. 14B
14B. Deleted by XVI.2019.16.
CONSUMER AFFAIRS
Art. 15
PART III
Consumer Claims Tribunal
Art. 16
Prime Minister may extend operation of articles 10, 12, 12A, 13, 14, 14A and 14B and Parts XI, XII and XIII to other laws.
Amended by:
II. 2008.16;
VI. 2011.75.
Establishment of tribunals.
CONSUMER AFFAIRS
Arbiters.
Amended by:
II. 2008.17.
Art. 17
Provided that more than one arbiter may be appointed to sit in any of the said tribunals, but only one arbiter shall sit in any one case.
Abstention or challenge of arbiters.
Art. 18
Oath taken by arbiter.
Amended by:
L.N. 212 of 2023.
Art. 19
Art. 20
Amended by:
XXVI. 2000.9;
L.N. 425 of 2007;
VI. 2011.90;
XLIV.2021.14;
XXIV.2023.3. (b) the provision of services by a trader to a consumer.
Provided that a case shall not be transferred to a tribunal where the value of the claim or counter-claim determined as provided for in sub-article (1) exceeds ten thousand euro (€10,000); and (c) it shall be lawful for a trader to make a counter-claim against a consumer arising from a matter referred to in sub-article (1) before the tribunal in an action brought against him by a consumer.
Art. 21
Provided that any question of prescription shall be determined according to law:
Provided further that when determining issues in disputes that concern harm suffered by consumers resulting from unfair commercial practices, the tribunal shall order proportionate and effective remedies, Determination of disputes before a tribunal.
Amended by:
L.N. 425 of 2007;
VI. 2011.91;
XIII.2022.4.
CONSUMER AFFAIRS including compensation for damage suffered by the consumer and, where relevant, a price reduction or the termination of the contract; taking also into account, where appropriate, the gravity and nature of the unfair commercial practice, the damage suffered by the consumer and other relevant circumstances.
Appeals.
Amended by:
XXVI. 2000.10;
VI.2001.26;
II. 2008.18;
VI. 2011.92.
Art. 22
CONSUMER AFFAIRS Provided that where no such fees have been so established the fees contained in Schedule A to the Code of Organization and Civil Procedure shall apply.
Art. 23
Procedure.
Amended by:
XXVI. 2000.11;
VI. 2011.75;
IX. 2011.64.
Provided that for the purposes of this sub-article, "communications service" means any communications service as is regulated in accordance with the provisions of the Malta Communications Authority Act.
Applicability of this Part.
Art. 24
Provided that it shall be lawful for a consumer and a trader to agree that this Part shall also apply to sales made, or services provided, before the coming into force of this article.
Costs and enforcement.
Amended by:
XXVI. 2000.12;
L.N. 425 of 2007;
VI. 2011.93.
Art. 25
Provided that where the arbiter is satisfied that a claim presented before the Tribunal or any defence offered in respect thereof is vexatious or frivolous, he may order the claimant or the defendant, as the case may be, to pay to the other party a penalty of not more than one hundred and twenty euro (€120). Any such order shall be motivated and enforceable in the same manner as a decision of the Tribunal.
Provided that in no case shall costs be awarded in connection with any expenses consisting of legal fees or any fees however so called paid by any of the parties to advocates, legal procurators or any other person assisting the parties before the tribunal.
CONSUMER AFFAIRS
Provided that the Court fees payable in respect of any warrant issued for the purpose of enforcing a decision of the Tribunal shall amount to one-half of the court fees applicable in respect of warrants issued for the purpose of enforcement of judgments of the Court of Magistrates referred to herein.
Art. 25A
25A. The Director General shall monitor closely the decisions of the Tribunal to identify traders whose conduct on the market may be in breach of the Act or regulations made thereunder or who may not be honouring the decisions of the Tribunal or of the Court of Appeal to the detriment of consumers and may take any action under this Act or regulations made thereunder against such traders to address any consumer harm that could be ensuing from the traders’ behaviour:
Failure to comply with decisions.
Added by:
II. 2008.19.
Substituted by:
VI. 2011.94.
Provided that any action by the Director General under this article shall be without prejudice to the obligation of the trader to comply with the decision of the Tribunal or of the Court of Appeal.
Art. 26
Registry, secretary and deputy secretary.
Amended by:
VI. 2011.95.
Art. 27
Rules.
CONSUMER AFFAIRS (b) establishing the forms that are to be used in proceedings before the tribunals or in appeals from the tribunals; (c) establishing rates of costs in proceedings before the tribunals; (d) establishing the fees that may be due to the registry of the tribunal; (e) setting out the duties of the secretaries and deputy secretaries; and (f) prescribing anything that may or is to be prescribed in accordance with this Part.
PART IV
Consumer Associations Requirements for registrations.
Amended by:
XXVI. 2000.13.
Art. 28
Application for recognition.
Amended by:
L.N. 426 of 2012.
Art. 29
CONSUMER AFFAIRS
Art. 30
Register of consumer associations.
Provided that the identity of the members of a registered consumer association shall not be open to public scrutiny.
Art. 31
Obligation to keep records of members.
Amended by:
L.N. 426 of 2012.
Art. 32
Obligation to submit information to Council.
Art. 33
CONSUMER AFFAIRS Council shall publish for general information in the Gazette a list of the registered consumer associations duly registered as on the 31st December of the previous year.
False or misleading statement, etc.
Amended by:
L.N. 425 of 2007;
VI. 2011.96.
Art. 34
Exemption and privileges.
Art. 35
Exemption from liability.
Amended by:
II. 2008.20.
Art. 36
Registered consumer associations and prosecutions.
Amended by:
VI. 2011.75
Art. 37
Exemption from income tax.
Art. 38
CONSUMER AFFAIRS
Art. 39
Assistance to registered consumer associations.
Amended by:
XXI of 2020.
Art. 40
Consultation and initiatives with registered consumer associations.
Art. 41
Cancellation of registration.
Amended by:
II. 2008.21. (b) it is satisfied that the association no longer complies with any of the requirements laid down in article 28; (c) for any reason, the statute regulating the association is not in conformity with the provisions of this Part; (d) it is satisfied that the association has ceased to exist or to function; (e) it is satisfied that sufficient proof exists that the registration of the association had been procured by fraud, negligence or serious mistake; (f) the association or anyone acting on its behalf is convicted under article 34; or (g) the association has repeatedly acted in breach of any rules of practice made under article 7(1)(b), or has in any matter of gravity acted even once in breach of such rules.
Art. 42
Other consumer associations.
PART V
Added by:
XXVI. 2000.15.
Declaration of Principles
Art. 43
Added by:
XXVI. 2000.15.
CONSUMER AFFAIRS from a diverse range of goods and services; (b) to be protected against goods, production processes and services which are harmful to health; (c) to have adequate access to information about goods or services which is clear, correct and does not mislead; (d) to form and join consumer associations and to have consumer interests represented in the making and execution of government policy, and in the development of goods and services; (e) to protection from unlawful or unfair trading practices; (f) to receive a fair settlement of just claims including adequate compensation for misrepresentation, shoddy goods or unsatisfactory services; and (g) to effective, quick and inexpensive means of redress in disputes they may have with traders.
Added by:
XXX. 2015.5.
Interpretation.
Added by:
XXX. 2015.5.
Consumer right to access ADR procedures.
Added by:
XXX. 2015.5.
Residual ADR entity or entities.
Added by:
XXX. 2015.5.
PART VI
Consumer Alternative Dispute Resolution
Art. 43A
43A. In this Part unless the context otherwise requires: "this Part" includes any regulations made under this Part; and "residual ADR entity" means any such entity as the Minister may, after consultation with the Council, designate to deal with any disputes that consumers may have with traders in relation to which there is no existing ADR entity in place competent to deal with such disputes.
Art. 43B
43B. Consumers shall have the right to have access to ADR procedures with regard to disputes that they may have with traders:
Provided that where there is no ADR entity which is competent to deal with the resolution of any such disputes, then such disputes shall be referred to any such residual ADR entity or entities as may from time to time be designated in accordance with this Part.
Art. 43C
43C. (1) The entity listed in the Third Schedule to this Act shall perform the function of a residual ADR entity. The Minister may, after consultation with the Council, by order designate any other entity or entities to undertake the function of a residual ADR entity or entities which entity or entities shall be listed in the Third Schedule:
Provided that the Minister may by order, after consultation with the Council, amend the said Schedule and in particular the Minister may appoint different entities to deal with different types of disputes:
Provided further that the Minister shall by order amend the said Schedule at the written request of the Council if he is satisfied that the Council considers that an entity that has been designated as CONSUMER AFFAIRS a residual ADR entity does not satisfy or no longer satisfies one or more requisites under this Part.
Art. 43D
43D. (1) Except where competences are assigned to the Civil Court by this Act, the Council shall be the competent ADR regulatory authority, and in the exercise of such a role the Council shall independently and autonomously perform the following functions: (a) determine whether an entity is qualified to act as an ADR entity;
Role of the Council as the competent ADR regulatory authority and the Civil Court.
Added by:
XXX. 2015.5.
Substituted by:
XVI.2019.17. (b) monitor and investigate the operations and conduct of ADR entities and of traders; (c) following investigations of ADR entities and, or of traders that indicate prima facie that there are infringements of the law and of their obligations at law, institute judicial proceedings according to Part IIA before the Civil Court, in so far as this is applicable.
Provided that no such functions shall be exercised by any entity which is or may have been designated to act as residual ADR entity, or else is or was an ADR entity.
Art. 43E
43E. The provisions of articles 102, 103, 104 and 105, in so far as they relate to the exercise of the powers of investigation of the Director General in the performance of his regulatory functions, shall similarly apply to the Chairman of the Council when acting to monitor and investigate ADR entities and traders.
Application of certain investigative powers provisions of Part XII.
Added by:
XXX. 2015.5.
Substituted by:
XVI.2019.18.
CONSUMER AFFAIRS Application of Part IIA with regard to judicial proceedings before the Civil Court.
Added by:
XXX. 2015.5.
Substituted by:
XVI.2019.19.
Amended by:
XVII.2023.32.
Art. 43F
43F. With regard to the functions of the Council established in article 43D(1)(c) the institution of judicial proceedings by the Council and the relative judicial process shall be according to PART IIA before the Civil Court, in so far as this is applicable.
Power to make regulations.
Added by:
XXX. 2015.5.
Substituted by:
XVI.2019.20.
Art. 43G
43G. The Minister may make regulations on any aspect relating to consumer to trader alternative dispute resolution procedures, on the role and functions of the Council under this Part, and for the better functioning of such ADR procedures in Malta, including the power of the Council to request the Civil Court to impose penalties not exceeding fifty thousand euro (€50,000) and, or not exceeding one hundred euro (€100) for each day of non-compliance by the decision of the Civil Court, and the procedure to be followed by the Council in the investigative process and in any subsequent judicial proceedings before the Civil Court.
PART VII
Substituted by:
II. 2008.22.
Unfair contract terms Prohibited terms.
Added by:
XXVI. 2000.15.
Amended by:
XIV. 2009.3.
Art. 44
the time of delivery by the trader or allowing him to increase the price without in any case giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded; (q) causing the price to vary by reference to factors depending only on the will of the trader; (r) giving the trader the right unilaterally to determine whether the goods or services supplied are in conformity with the contract; (s) giving the trader the exclusive right to interpret any term of the contract; (t) limiting or eliminating the obligation of the trader to respect commitments undertaken by his agents or employees;
CONSUMER AFFAIRS (u) obliging the consumer to fulfil his obligations where the trader does not perform his; (v) allowing the trader the possibility of transferring all his rights and obligations under the contract where this may serve to reduce the guarantees or warranties for the consumer, without the consent of the consumer; (w) providing for an immediate and final commitment by the consumer on signature of the contract, with the trader contracting subject to a condition the fulfilment of which depends only on the will of the trader; (x) permitting the trader to establish or alter unilaterally the period for delivering goods or supplying a service; (y) excluding or limiting the legal liability of a trader or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that trader or supplier; (z) authorizing the trader or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader or supplier to retain the sums paid for services not yet supplied by him where it is the trader or supplier himself who dissolves the contract; (aa) enabling the trader or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so; (bb) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express this desire not to extend the contract is unreasonably early; (cc) excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.
CONSUMER AFFAIRS
Art. 45
Added by:
XXVI. 2000.15.
Amended by:
II. 2008.23. (b) causes the performance of the contract to be unduly detrimental to the consumer; or (c) causes the performance of the contract to be significantly different from what the consumer could reasonably expect; or (d) is incompatible with the requirements of good faith.
Provided that, in so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate (a) to the definition of the main subject matter of the contract, or (b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.
Art. 46
Consequence of inclusion of unfair or prohibited term.
Added by:
XXVI. 2000.15.
Art. 47
Use of plain language in consumer contract.
Added by:
XXVI. 2000.15.
Amended by:
XIII. 2009.4.
CONSUMER AFFAIRS Provided that this sub-article shall not apply to proceedings brought under article 94.
Protection in case of a term applying the law of a nonMember State.
Added by:
II. 2008.24.
Art. 47A
47A. The provisions of this Part shall apply notwithstanding any term in a consumer contract which applies or purports to apply the law of a non-Member State, if the contract has a close connection with the territory of any Member State.
Applicability over other laws.
Added by:
II. 2008.24.
Art. 47B
47B. The provisions of this Part shall prevail over anything to the contrary contained in the Civil Code and the Commercial Code.
Purpose of this Part.
Added by:
II. 2008.24.
Art. 47C
47C. The purpose of this Part is to implement the provisions of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and the provisions of this Part shall be applied and interpreted accordingly.
PART VIII
Unfair commercial practices and illicit schemes
Title I
Unfair commercial practices Misleading advertisements.
Added by:
XXVI. 2000.15.
Art. 48
(Deleted by II. 2008.27).
Meaning of comparative advertising.
Added by:
XXVI. 2000.15.
Art. 49
(Deleted by II. 2008.27).
Permitted comparative advertising.
Added by:
XXVI. 2000.15.
Art. 50
(Deleted by II. 2008.27).
Offering gifts and prizes.
Added by:
XXVI. 2000.15.
Art. 51
(Deleted by II. 2008.27).
Interpretation.
Added by:
II. 2008.28.
Amended by:
VI. 2014.4.;
XIII.2022.5.
Art. 51A
51A. In this Title, unless the context otherwise requires: "administrative provision" means any provision in a measure issued by any government Ministry or department, local authority or any other public body which is binding on the person to whom it is addressed, including any order, licence, permit, warrant or decision; "code of conduct" means an agreement or set of rules not imposed by law or administrative provision which defines the behaviour of traders who undertake to be bound by the code in relation to one or more particular commercial practices or business sectors; "code owner" means any entity, including a trader or group of traders, which is responsible for the formulation and revision of a CONSUMER AFFAIRS code of conduct and, or for monitoring compliance with the code by those who have undertaken to be bound by it; "commercial practice" means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers; whether it takes place before, during or after a commercial transaction in relation to the product; "invitation to purchase" means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of commercial communication used, which is such as to induce a consumer to make a purchase; "online marketplace" means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers; "product" means any good or service including immovable property, digital service and digital content, as well as rights and obligations; "professional diligence" means the standard of skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and, or the general principle of good faith, in the trader’s field of activity; "ranking" means the relative prominence given to products, as presented, organised or communicated by the trader, irrespective of the technological means used for such presentation, organisation or communication; "regulated profession and regulated professional activity" has the s a m e m e a ni n g a s s i g n e d t o i t i n t he M u t ua l Re c o g ni t i on o f Qualifications Act; "to materially distort the economic behaviour of a consumer" means using a commercial practice to appreciably impair the
consumer’s ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise; "trader" means any natural person or any legal person who, in commercial practices covered by this Title, is acting for purposes relating to his trade, business, craft or profession and includes anyone acting in the name or on behalf of a trader; "transactional decision" means any decision taken by a consumer concerning whether, how and on what terms (i) to purchase a product, or (ii) to make payment in whole or in part for a product, or (iii) to retain or dispose of a product, or (iv) to exercise a contractual right in relation to the product, whether the consumer decides to act or to refrain from acting;
CONSUMER AFFAIRS "undue influence" means exploiting a position of power in relation to the consumer so as to apply pressure even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision.
Unfair commercial practices.
Added by:
II. 2008.28.
Art. 51B
51B. (1) Unfair commercial practices shall be prohibited.
Provided that, other than the advertising practice of making exaggerated statements or statements which are not meant to be taken literally, commercial practices which are likely to materially distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group.
Misleading actions.
Added by:
II. 2008.28.
Amended by:
XIII.2022.6.
Art. 51C
51C. A commercial practice shall be regarded as misleading if: (a) it contains false information; or (b) in any way, including its overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise: (i) the existence or nature of the product; (ii) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks CONSUMER AFFAIRS carried out on the product; (iii) the extent of the trader’s commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product; (iv) the price or the manner in which the price is calculated, or the existence of a specific price advantage; (v) the need for a service, part, replacement or repair; (vi) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions; (vii) the consumer’s rights, including the right to repair, replacement or reimbursement as provided in Part X of the Act, or the risks he may face; or (c) in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves: (i) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or (ii) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where (a) the commitment is not aspirational but is firm and is capable of being verified, and (b) the trader indicates in a commercial practice that he is bound by the code; or (iii) any marketing of a good, in one Member State, as being identical to a good marketed in other
Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Art. 51D
51D. (1) A misleading if: commercial practice shall be regarded as (a) in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and Misleading omissions.
Added by:
II. 2008.28.
Amended by:
VI. 2014.5;
XIII.2022.7.
CONSUMER AFFAIRS thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise; or (b) taking account of the matters described in paragraph (a), the trader hides, or provides in an unclear, unintelligible, ambiguous or untimely manner, such material information as referred to in that paragraph, or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.