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. 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. 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 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. 4.
(1)There shall be established a Council to be designated "the Consumer Affairs Council" having the functions and duties set out in this Act. The Council shall consist of a chairman and five ot h er m em b ers, o ne o f wh o m s ha ll b e ap po i nt e d as d ep u ty chairman.
(2)The Minister shall appoint: (
- a)the chairman and four other members from among persons who, because of their experience, qualifications or activities, the Minister considers as being able to contribute towards the promotion of consumer interests; and (
- b)one member who, because of his experience, qualifications or activities, the Minister considers as being able to state the point of view of traders.
(3)One of the members, other than the chairman, mentioned in sub-article
(2)(
- a)shall be appointed after consultation with those consumer associations, if any, registered under Part IV of this Act and the member mentioned in paragraph (
- b)of the same sub-article shall be appointed after consultation with those constituted bodies which the Minister considers to represent the interests of traders.
(4)The appointed members shall hold office for such term, not being more than three years, as may be specified in their letter of appointment and shall be eligible for re-appointment.
(5)Where the seat of any appointed member is vacated before the expiration of the term fixed in his letter of appointment, the Minister shall appoint another person to replace such member for such term, not being a term of more than three years, as the Minister may determine in his letter of appointment.
(6)The deputy chairman shall act instead of the chairman whenever the chairman is lawfully impeded or is absent from a meeting of the Council.
(7)A person shall not be eligible to be appointed a member of the Council, or to continue to be a member of the Council if such person (
- a)is a member of the House of Representatives; or Consumer Affairs Council. 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.
(8)Notwithstanding any other provision of this article the Minister may at any time terminate the appointment of an appointed member, if in his opinion such appointed member is unfit t o c o n t i n u e i n o ff i c e o r h a s b e c o m e i n c a p a b l e o f p r o p e r l y performing his functions.
(9)The Minister shall appoint an officer serving in the public service to act as non-voting secretary of the Council. Functions of the Council. Substituted by: VI. 2011.79. 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 6.
(1)Subject to the provisions of this Act, the Council shall regulate its own procedure. Conduct of business of Council.
(2)The Council shall meet as often as necessary but in no case less frequently than once every calendar month. Meetings shall be convened by the chairman or in his absence the deputy chairman, either on his own initiative, or at the request of three other members of the Council.
(3)A quorum at a meeting of the Council shall be constituted by the chairman, or in his absence the deputy chairman, and three other members.
(4)Decisions of the Council shall be taken by majority of votes of the members present and voting, the chairman shall have an original vote and in the event of equality of votes a second or casting vote.
(5)The Council may act notwithstanding any vacancy among its members.
(6)Any member of the Council who in any matter before the Council has any interest in conflict with his office as member of the Council shall disclose the nature of his interest and withdraw from any meeting of the Council during which the matter is discussed. Any such disclosure shall be recorded in the minutes. 7.
(1)The Minister may, after consulting the Council, make regulations about any matter relating to consumer affairs in order to give fuller effect to the provisions of this Act, and in particular, but without prejudice to the generality of the aforesaid, may prescribe regulations (
- a)in relation to any aspect concerning the provision of any service, or the sale or hire of any goods offered or supplied to consumers; establishing minimum service standards and price indication requirements with regard to any such goods or services, and laying down any other requirements in order to improve price transparency and consumer information, and to promote easier comparison between different goods or services offered to consumers; (
- b)establishing rules of practice for registered consumer associations; (
- c)regulating advertising and similar practices in order to ensure that advertising and similar practices are fair and that they do not take undue advantage of consumers; (
- d)regulating trading stamps schemes, gift schemes, special offers, sale promotional activities and other similar schemes, arrangements and activities, by whatever name described or designated, connected with, ancillary or related to the provision of any service or the sale or hire of any goods to consumers and other consumer transactions, including schemes involving the use and promotion of coupons, units, Power to make regulations. 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.
(2)Regulations made under this article may also provide for the assignment of power and authority to the Director General to control, monitor, keep under review or prohibit any scheme, agreement, activity or arrangement, including the power to authorise, require a licence, suspend, restrict and to order the amendment, prohibition, suspension, withdrawal or cancellation of any particular scheme, agreement, activity or arrangement, or of a particular class or category thereof, and to impose any conditions and requirements in connection therewith: Provided that this is without prejudice to the competences assigned to the Civil Court by this Act.
(3)Regulations made under this article may provide that any person who contravenes any provision of the regulations, shall either (
- a)be guilty of an offence punishable on conviction by a fine (multa) not exceeding forty-seven thousand euro (€47,000), or CONSUMER AFFAIRS (
- b)be guilty of an infringement punishable by an penalty not exceeding forty-seven thousand euro (€47,000), and in any case, different penalties may be prescribed for different offences and infringements. Power to issue guidelines. Added by: II. 2008.9. Amended by: VI. 2011.75. 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. 8.
(1)The Director General may make or issue a public statement identifying and giving warnings or information about any of the following: (
- a)goods that are unsatisfactory or dangerous and persons who supply those goods; (
- b)services supplied in an unsatisfactory manner and persons who supply those services; (
- c)trading practices detrimental to the interests of consumers and persons who engage in such practices; and (
- d)any other matter that adversely affects or may adversely affect the interests of consumers in connection with the acquisition by them of goods or services from traders.
(2)When making a statement as is referred to in sub-article
(1), the Director General shall adhere to the principles of fairness and objectivity.
(3)The Government, the Director General and any public officer acting on the instructions or authority of the Director General, shall be exempt from any liability for acts done in good faith in pursuance of this article by the Director General or any public officer as aforesaid. Such exemption shall extend to all persons publishing, printing, recording, broadcasting or communicating such information by any means whatsoever. 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. 9.
(1)Without prejudice to any arrangements made in terms of article 9A, a trader shall not, without the written consent of the Director General, make or cause to be made any representation in any visual or aural form, either specifically or by implication, to the effect that: (
- a)any goods or services supplied by any trader have the approval of the Authority, Office or Council; or (
- b)any activity carried out by any trader has the approval, or is conducted with the co-operation or assistance of the Authority, Office or Council.
(2)Where a trader’s name, tradename, trademark, or the designation of any goods or services provided or supplied by a trader, appears in relation to a representation referred to in subarticle
(1), that trader shall be deemed for the purposes of this article to have caused the representation to be made unless he CONSUMER AFFAIRS proves that the representation was made without his knowledge or connivance.
(3)A trader convicted under this article shall be liable to a fine (multa) of not less than one hundred and twenty euro (€120) and not more than two thousand three hundred and fifty euro (€2,350). 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.
(2)Any such arrangements must specify the criteria to be applied by the Director General in determining whether to give approval to or withdraw approval from a code of conduct.
(3)Any such arrangements may in particular: (
- a)specify the type of code of conduct that may be the subject of an application to the Director General for approval indicating the requisite features of the code of conduct, including the persons who are, or are to be subject to the code of conduct, the manner in which it is, or is to be operated and the persons responsible for its operation; and (
- b)provide for the use in accordance with the arrangements of an official symbol intended to signify that a code of conduct is approved by the Director General.
(4)The Director General shall publish any arrangements under sub-article
(1)in such manner as he considers appropriate.
(5)For the purposes of this article "code of conduct" shall have the same meaning assigned to it in article 51A. 10.
(1)Where an offence or an infringement under this Act or any regulation made thereunder is committed by an employee or other person acting on behalf of a trader, the trader shall also be guilty of the offence or the infringement committed by the employee or other person acting on his behalf unless he can prove that he has exercised all reasonable diligence to prevent the commission of the offence or the infringement by the employee or other person acting on behalf of the trader.
(2)Where an offence or an infringement of any provision of this Act or any regulation made thereunder is committed by a body corporate and is proved to have been committed with the consent or involvement of or to be attributable to any gross negligence on the part of a person being a director, manager, secretary or other officer however so described of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be liable to be proceeded against and p u n i s h e d a s i f h e w a s r e s p o n s i b l e f o r t h e s a i d o ff e n c e o r infringement. 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 11.
(1)A person who is or was at any time a member of the Council shall not, save in the course of his duty or functions under this Act or any other law, or where it is competent to him to do so by reason of a provision of this Act or any other law, directly or indirectly communicate any information that came to his knowledge as a consequence of his holding that appointment or position.
(2)Without prejudice to any other liability under any other law, any person who acts in breach of this article shall be liable on conviction to a fine (multa) of not less than one hundred and twenty euro (€120) and not more than two thousand and three hundred fifty euro (€2,350), or to a term of imprisonment not exceeding six months, or to both such fine and imprisonment. 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. 12.
(1)Saving the provisions of article 17
(1)(f) of the Malta Competition and Consumer Affairs Authority Act, to ensure the observance of the provisions of this Act and any regulations made thereunder, the Director General shall have the power to carry out investigations of his own motion or upon a reasonable allegation in writing made by any person of an infringement of the provisions of this Act and any regulations made thereunder.
(2)Upon commencing investigations concerning an alleged infringement of this Act or of any regulations made thereunder, the Director General shall notify in writing the person concerned that an investigation has commenced, informing the person concerned of the nature of the alleged infringement.
(3)The person concerned shall present his submissions to the Director General within twenty days from the notification of the commencement of investigations.
(4)During the investigations, the Director General, to discharge his functions under this Part, may also adopt the power of entry of inspection and the power to request and obtain information according to articles 103 and 104, and the provisions of article 105 shall also apply accordingly.
(5)Without prejudice to articles 12A and 13, where, upon the conclusion of an investigation, it appears prima facie to the Director General that an infringement of a provision of this Act or of any regulations made thereunder has occurred, the Director General shall institute judicial proceedings against the person concerned before the Civil Court by means of a sworn application. Commitments procedure. Substituted by: XLIV.2021.5. Amended by: XVII.2023.28. 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.
(2)The termination of the investigation or of the judicial proceedings, as the case may be, by means of the commitments procedure shall be granted by virtue of a judgement delivered by the Civil Court upon the demand made jointly by the Director General and the person concerned, where the Director General and the person concerned agree 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 according to article 106A: 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.
(3)The joint demand mentioned in sub-article
(2)shall be made by means of a joint application filed in the Civil Court: 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).
(4)In the course of an investigation the Director General may prior to instituting judicial proceedings according to article 12
(5), if he deems it appropriate for the expeditious and efficient conclusion of the investigation, invite the person concerned to indicate in writing, within the time limit set by the Director General, whether the person concerned is prepared to engage in commitments discussions with a view to possibly introducing commitments submissions: 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.
(5)Should the Director General ascertain that sufficient progress in the commitments discussions has taken place, the Director General shall invite the person concerned to introduce commitments submissions before the Director General within a time limit as set by the Director General with a view to conclude the commitments procedure: 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.
(6)The documents and the information exchanged between the Director General and the person concerned during the commitments procedure are confidential: 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.
(7)The commitments submissions which are to be included in the joint application shall contain a voluntary statement by the person concerned containing the following information: (
- a)a statement by the person concerned, clearly and unequivocally admitting his infringement of those provisions of the Act and of the regulations made thereunder mentioned in the investigation or in the judicial proceedings; (
- b)a factual and brief description of the conduct of the person concerned, the objective of the conduct and the way in which it was carried out, its duration and the extent in which the person concerned was involved; (
- c)a statement of the person concerned declaring that he accepts the amount of the penalty that is being requested by the Director General in the joint application, as reduced according to sub-article
(9); (d) a statement of the person concerned to the effect that he was sufficiently informed by the Director General regarding the main elements of the suspected infringement contained in sub-article
(5)and a declaration of the person concerned that he was given sufficient opportunity to be heard and to make his views known to the Director General; (
- e)a statement of the person concerned that he will waive his right to obtain further or full access to the file of the investigation concerning his case; (
- f)a statement of the person concerned containing his waiver of his right to appeal and, or to challenge in any way the commitments procedure and, or the judgement of the Civil Court including the penalty; as well as his waiver of any action or claim arising from the same commitments procedure and, or related to the judgment of the Civil Court and, or to the penalty; and (
- g)a statement of the person concerned that he agrees with the contents of the commitments submissions and that he agrees that a joint application is filed in Civil Court with the Director General to terminate the investigation or the judicial proceedings, as the case may be, by means of commitments, and to request the Civil Court to deliver a judgement according to the commitments submissions: 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.
(8)Commitments discussions may also be proposed jointly by the parties at a later stage, when a sworn application according to article 12
(5)would have already been filed by the Director General before the Civil Court: 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.
(9)If the person concerned agrees to terminate the investigation or the judicial proceedings by means of commitments, by filing together with the Director General the joint application, the Director General shall reward the person concerned for the commitments, by reducing between ten to thirty-five percent (10% - 35%) of the amount of the penalty requested to be imposed by the Civil Court on the person concerned: Provided that the penalty, for each infringement, shall not be less than four thousand six hundred and fifty euro (€4,650). CONSUMER AFFAIRS
(10)The Director General may decide at his own discretion at any time during the commitments discussions to discontinue the commitments procedure altogether in a specific case or with respect to one or more of the parties involved, if, for instance: (a) procedural efficiencies are not likely to be achieved; or (b) the commitment submissions do not contain all the requirements mentioned in sub-article
(7); or (c) the person concerned does not have a sincere intention of submitting to commitments or does not cooperate or has breached the confidentiality obligation by revealing to any third party the content of the commitments meetings held with the Director General or the contents of the documents to which access has been granted: 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.
(11)If the commitments procedure is discontinued either by the Director General or by the person concerned during the investigation or during the judicial proceedings, any information and any document provided by the person concerned during the commitments procedure cannot be used as evidence to establish an infringement of those provisions of the Act and of the regulations made thereunder mentioned in the investigation or in the judicial proceedings against the person concerned or other parties to the investigation before any court of law: 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. 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.
(2)The Director General shall, within forty-five days after the day on which he receives the complaint, publish a response stating how he proposes to deal with the complaint, and in particular whether an investigation will be initiated.
(3)The response must state the reasons of the Director General for his proposals.
(4)The Director General (
- a)shall issue guidance as to the presentation by the qualified entity of a reasoned case for the complaint; and (
- b)may issue such other guidance as appears appropriate for the purposes of this article. 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. 12C. shall:
(1)The sworn application referred to in article 12
(5)(
- a)provide the facts that have brought the Director General to conclude that prima facie there is an infringement of the provisions of this Act and of the regulations made thereunder; (
- b)include the request of the Director General for a declaration of the Civil Court that the person concerned, against whom the judicial proceedings are instituted, has infringed the provisions of this Act and of the regulations made thereunder and is liable for such infringement; and (
- c)contain a request by the Director General to the Civil Court for: (
- i)the imposition of a penalty on the person concerned according to article 106A for each infringement: 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.
(2)Repealed by Act XVII.2023.29.
(3)The person concerned shall, within twenty days from the notification to him of the sworn application, file a sworn reply, and the provisions of article 158 of the Code of Organization and Civil Procedure shall, mutatis mutandis, apply in this case. Specific powers of the Civil Court. Added by: XVI.2019.13. CONSUMER AFFAIRS
(4)During the judicial proceedings the person concerned in receipt of a sworn application shall be entitled, upon a request to this effect in his sworn reply, to have access to the file of the investigation concerning his case, without prejudice to the non-disclosure of information or documents identified by the Director General as containing business secrets or other confidential information, or of internal documents of the Director General or of the Consumer Protection Authorities of other Member States, and without prejudice to the provisions contained in Part VIII of the Malta Competition and Consumer Affairs Authority Act. The Director General shall provide such access to the file of the investigation at any time prior to the conclusion of his evidence. 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. 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.
(2)The application shall be served on the person concerned, who shall within eight days from the notification thereof, file his reply to propose any remedies or to contest the request for interim measures providing the reasons thereto.
(3)The Civil Court shall decide the application with urgency either in camera or after hearing the advocates of the parties, if it deems fit, provided that not more than one sitting may be fixed for such purpose.
(4)The decree of the Civil Court ordering the issue of interim CONSUMER AFFAIRS measures shall be enforceable upon its delivery and shall remain in force for that period of time established by the Civil Court. An appeal from the interim measures imposed by the Civil Court according to sub-article
(1)may be lodged by the aggrieved party by means of an application filed before the Court of Appeal within six
(6)days from the date of such decree on the legality, including the proportionality of the interim measures, and the party against whom such an application is filed shall reply thereto within six
(6)days from the date of service of such an application: 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.
(5)Any person who infringes the decree ordering the interim measures shall be liable to a penalty according to article 106A. 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 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.
(2)Repealed by Act XVII.2023.31.
(3)Repealed by Act XVII.2023.31.
(4)Repealed by Act XVII.2023.31. CONSUMER AFFAIRS
(5)Any person who fails to comply with a compliance order issued by the Civil Court, shall be liable to a penalty according to article 106A
(2).
(6)Where a compliance order has been requested, the Civil Court shall in all cases act as expeditiously as possible.
(7)Once issued by the Civil Court, a compliance order shall come into force with immediate effect.
(8)When requesting the issue of a compliance order, the Director General shall not have to prove: (
- a)actual loss or damage, or (
- b)actual recklessness, negligence or fault on the part of the person concerned.
(9)The Civil Court may, in its judgement, in order to eliminate or reduce the continuing effects of any non-observance of any provisions of this Act or any regulations made thereunder or of any other law dealing with consumer rights and protection as may be designated by the Minister after consulting the Council by Order in the Gazette, order the person concerned: (
- a)to publish a copy of the compliance order, in full or in part and in such form as the Civil Court deems to be appropriate and adequate; and, or (
- b)to publish a corrective statement as required by the compliance order in relation to any 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 the Minister after consulting the Council by Order in the Gazette: 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. 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.
- Amended by: XLIV.2021.
- 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.
(2)Before giving its judgment, the Civil Court may have recourse to the judgments of the Court of Justice of the European Union, to the relevant decisions and, or statements of the European Commission, including interpretations of the European Regulations and Directives relative to consumer protection and may also refer to its decisions and to the decisions of the Competition and Consumer Appeals Tribunal.
(3)Where the Civil Court has in its judgment found the person concerned liable of an infringement or of infringements of this Act or of any regulations made thereunder, it shall impose a penalty according to article 106A for each infringement.
(4)Subject to the right of appeal established in article 12I, the judgments of the Civil Court shall be final and binding.
(5)Subject to the provisions of this Act, the provisions of the Code of Organization and Civil Procedure shall, mutatis mutandis, apply to all judicial proceedings instituted according to this Act, before the Civil Court and the Court of Appeal and to the enforcement of judgements.
(6)When publishing judgements and decrees, the Civil Court shall have regard to the legitimate interest of the person concerned in the protection of his business secrets or other confidential information. 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.
(7)The Director General shall also publish on the website of the Authority a notice whereby it is stated that a sworn application has been filed according to article 12C having regard to the legitimate interest of the person concerned in the protection of his business secrets and other confidential information. The publication may contain the name of the person concerned against whom the Director CONSUMER AFFAIRS General has filed a sworn application and a brief description of the type of the alleged infringement as well as the affected business sector. 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.
- 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.
- 13.
(1)When investigations in terms of article 12 relate to an offence under this Act or any regulations made thereunder, criminal proceedings may only be instituted at the instance of the Director General. Criminal proceedings. Amended by: XXVI. 2000.8; II. 2008.13; VI. 2011.75, 87; XLIV.2021.13.
(2)In any proceedings referred to in sub-article
(1), the Director General, or an official of the Office duly authorised to act in his stead, may, notwithstanding any provision of any other law, conduct the prosecution before the Court of Magistrates.
(3)Should the evidence of the Director General or 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 his giving evidence arises later in the proceedings. 14.
(1)Upon the request even verbal of the aggrieved consumer or of the prosecuting officer on his behalf, the court shall where the person concerned is convicted for an offence against a provision of the Act or against any regulation made under article 7, make a compensation order whereby person concerned is ordered to pay to the aggrieved consumer as full or partial compensation (
- a)a sum not in excess of six hundred euro (€600) for any Compensation orders. 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.
(2)Any compensation ordered under sub-article
(1)(a) shall be reduced from any amount which may be given in a judgment by a court or tribunal of civil jurisdiction with regard to the same matter.
(3)A request for the making of a compensation order shall not be made where such damages have been settled by agreement with the trader or where the aggrieved consumer has instituted a claim before a court or a tribunal of civil jurisdiction against the person concerned in respect of the same matter.
(4)A compensation order made under this article shall be without prejudice to the right of the aggrieved consumer to institute civil action for the recovery of any sum due to him as damages so however that the sum covered by the compensation order shall be reduced from the total sum due by the person concerned as damages.
(5)A compensation order made under this article shall be subject to appeal by the person concerned in the same manner as an appeal from sentence. Court orders. Added by: II. 2008.15. Amended by: XIV. 2009.2; VI. 2011.75; XVI.2019.15. Substituted by: XVI.2019.15.
(6)When the judgment in which a compensation order is made has become res judicata, the said compensation order shall be deemed to be an executive title for the purposes of the Code of Organization and Civil Procedure and shall be enforceable in the same manner as if it were a judgment of the Court of Magistrates (in each case in its inferior civil jurisdiction) of the island where the court making the compensation order is situate. 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. 14B. Deleted by XVI.2019.16. CONSUMER AFFAIRS 15. Deleted by XVI.2019.16. PART III Consumer Claims Tribunal 16.
(1)There shall be two tribunals to be styled "the Consumer Claims Tribunal (Malta)" and "the Consumer Claims Tribunal (Gozo)" respectively.
(2)The Consumer Claims Tribunal (Malta) shall, subject to the pro vision s of su b-article
(3), h ave ju risdict ion to h ear and determine consumer claims where the transaction to which the claim refers has taken place in Malta, and shall hold its sittings in such place or places in Malta as the Minister may by order in the Gazette determine.
(3)The Consumer Claims Tribunal (Gozo) shall have jurisdiction to hear and determine consumer claims where the transaction to which the claim refers has taken place in the Islands of Gozo or Comino, and shall hold its sittings in such place in the Islands of Gozo and Comino as the Minister, in consultation with the Minister responsible for Gozo Affairs, may by order in the Gazette determine.
(4)For the purposes of sub-articles
(2)and
(3)a transaction shall be deemed to have taken place: (
- a)in the case of a sale or a service which has been concluded or provided on the premises of the trader, in the island where those premises are situate; (
- b)in the case of a sale or a service which has been concluded or provided outside the premises of the trader: (
- i)where the sale or the service was contracted by telephone, fax, correspondence or by any mechanical or electronic means of communication, and the trader did not himself approach the consumer and offer the sale of the goods or the supply of the service, in the island where the premises of the trader are situate; (
- ii)in all other cases in the island where the goods were delivered or the service provided; so however that where the goods were delivered or the service provided partly in the Island of Malta and partly in the Island of Gozo or in the Island of Comino, or has taken place during a voyage between the Island of Malta and the Island of Gozo or the Island of Comino, both tribunals shall have jurisdiction. 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
(5)Where in accordance with the provisions set out in subarticle
(4), or in accordance with any rules made under article 27, it cannot be determined which tribunal has jurisdiction, the provisions of the Code of Organization and Civil Procedure to determine conflict of jurisdiction between the Court of Magistrates (Malta) in its civil jurisdiction and the Court of Magistrates (Gozo) in its inferior civil jurisdiction, shall mutatis mutandis apply. Arbiters. Amended by: II. 2008.17. 17.
(1)Each tribunal shall be presided by an arbiter sitting alone: 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.
(2)Arbiters shall be appointed by the Prime Minister. No person shall be qualified to be appointed arbiter unless such person (
- a)is a citizen of Malta over the age of thirty years; and (
- b)holds the warrant and has practised the profession of advocate in Malta for a period of at least five years.
(3)A person shall be disqualified to be appointed arbiter if such person (
- a)is a member of the House of Representatives; or (
- b)is a member of a Local Council; or (
- c)is a trader; or (
- d)has been convicted of any of the offences or found guilty of any of the infringements referred to in article 4
(7)(d)(v).
(4)Arbiters shall receive such remuneration as the Prime Minister may by notice in the Gazette determine, and shall not be precluded from the exercise of their respective profession.
(5)Arbiters shall be appointed for a term of three years and shall be eligible to be re-appointed, for a further term or terms of three years each.
(6)In the exercise of his functions under this Act an arbiter shall not be subject to the control or direction of any other person or authority and may not be removed from office except by the Court of Appeal on an application for that purpose by the Prime Minister on the grounds of misbehaviour or inability to perform his functions by reason of infirmity of body or mind.
(7)The remuneration due to arbiters and the expenses in connection with the administration of the tribunals shall be paid out of the Consolidated Fund without the necessity of any further appropriation. Abstention or challenge of arbiters.
- An arbiter shall abstain and may be challenged in the same circumstances as a judge of the superior courts. Oath taken by arbiter. Amended by: L.N. 212 of
- Every person appointed as an arbiter shall not assume the functions of his office unless and until he has taken before the State Advocate an oath to examine and decide the cases brought before CONSUMER AFFAIRS him without delay, with impartiality, and equity according to law. 20.
(1)A tribunal shall have 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 ten thousand euro (€10,000), and where the claim relates to, arises out of or concerns, whether directly or indirectly (
- a)the purchase or hire of goods by a consumer from a trader; or Jurisdiction of the tribunal. 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.
(2)The jurisdiction of a tribunal shall not be exclusive, and it shall be at the option of the consumer whether to bring an action against a trader before a tribunal or before the ordinary courts; so however that (
- a)where an action has been brought before a tribunal by a consumer, it shall not be competent for the consumer to bring an action arising out of the same claim also before the ordinary court; and (
- b)where an action has been brought before the ordinary courts by a consumer, or in a case brought by a trader against a consumer and the consumer sets forth a counter-claim, it shall be lawful for all the parties to the action, where the claim and the counter-claim if any are within the jurisdiction of a tribunal, by a joint note filed in the records of the case to request that court to transfer the case to a tribunal. Thereupon the ordinary court shall through the Registrar transfer a copy of the records of that case to the tribunal and shall refrain from taking further cognisance of the case. Registry costs in respect of the case before the ordinary courts shall in any such case be waived, and unless the parties otherwise agree in the note aforesaid, costs shall be determined in a like manner as if the case was withdrawn by the plaintiff: 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. 21.
(1)A tribunal shall determine the issues in dispute in any claim or counter-claim before it according to the substantive merits and justice of the case, and in accordance with equity: 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.
(2)A tribunal may, when determining the issues in dispute in any claim or counter-claim before it, order the trader to pay to the consumer a sum of not less than thirty-five euro (€35) and not more than five hundred euro (€500) as moral damages for any pain, distress, anxiety and inconvenience. Appeals. Amended by: XXVI. 2000.10; VI.2001.26; II. 2008.18; VI. 2011.92. 22.
(1)An appeal made under sub-articles
(2)and
(3)shall lie from a decision of a tribunal by means of an application filed within twenty days from the date of the decision (
- a)in the case of an appeal from the Consumer Claims Tribunal (Malta) to the Court of Appeal (Inferior Jurisdiction) sitting in Malta; and (
- b)in the case of an appeal from the Consumer Claims Tribunal (Gozo) to the Court of Appeal (Inferior Jurisdiction) sitting in Gozo.
(2)An appeal shall lie in the following cases: (
- 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.
(3)A right of appeal on all grounds shall also lie where the amount of the claim in dispute, calculated in terms of article 20
(1), exceeds one thousand two hundred euro.
(4)Where the Court of Appeal finds that the grounds for appeal are justified it shall quash the decision of the Tribunal and shall itself determine the original claim and any counter-claim in accordance with the provisions of article 21.
(5)The Court of Appeal may, if it considers the application frivolous or vexatious, dismiss the appeal and order the appellant to pay a penalty which shall not be less than two hundred and thirty euro and not exceeding one thousand one hundred and seventy euro.
(6)The amount of the penalty shall be due and owing to the Government as a civil debt, liquidated and certain, and may be collected by the Registrar. The order referred to in sub-article
(5)shall constitute an executive title within the meaning and for the purposes of Title VII of Book Second of the Code of Organization and Civil Procedure.
(7)The Minister responsible for justice may be regulations under this sub-article establish the fees payable in the registry of the courts in relation to the filing of judicial acts in connection with an appeal under this article: 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.
(8)The board established under article 29 of the Code of Organization and Civil Procedure may make rules governing appeals under this article. 23.
(1)Subject to the provisions of any rules made in accordance with article 27 and to the provisions of sub-article
(2), an arbiter shall regulate the proceedings before a tribunal as he thinks best suited to the ends of justice in accordance with the rules of natural justice. Procedure. Amended by: XXVI. 2000.11; VI. 2011.75; IX. 2011.64.
(2)Subject to any rules referred to in sub-article
(1)hereof, an arbiter (
- a)shall ensure that a case is decided as far as is reasonably possible on the same day of the hearing; (
- b)shall inform himself in any manner he thinks fit and shall not be bound by the rules of best evidence or the rules relative to hearsay evidence if he is satisfied that the evidence before him is sufficiently reliable for him to reach a conclusion on the case before him; (
- c)shall refrain as far as possible from appointing technical referees to give expert evidence, and shall where experts are appointed make out a list of points upon which the expert is to give evidence; (
- d)shall not be bound to give extensive reasons for his decisions but it shall be sufficient for him to list out the main points upon which his decision is based; (
- e)shall have the same power as a magistrate sitting in a Court of Magistrates (Malta) in its civil jurisdiction or in the Court of Magistrates (Gozo) in its inferior civil jurisdiction and in particular shall have power to summon witnesses and to administer an oath to witnesses; and (
- f)shall ensure evidence before the Tribunal shall in all cases be tendered on oath.
(3)No proceedings before a tribunal shall be invalid because of any non-observance of any formalities if there has been substantial compliance with the rules.
(4)(
- a)A claim shall, before being presented before a tribunal, be referred by the party making the claim to the Director General or a registered consumer association who shall try to bring the parties into an agreement on the issues in dispute. (
- b)If no agreement is reached on all the issues in dispute within fifteen working days from when the claim was referred to the Director General or the registered consumer association, as the case may be, by the party, that party may then present its claim before the CONSUMER AFFAIRS tribunal.
(5)Where the Director General is in receipt of a claim referred to him by the Malta Communications Authority where such a claim was submitted to that Authority by an aggrieved end-user in relation to a communications service however so described falling within the remit of the Authority, then the Director General shall act on the basis of the claim forwarded to him by the Authority without the need of requiring the end-user concerned to submit the claim again to the Director General: 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.
(6)Witnesses shall be paid fees in accordance with the Witnesses (Fees) Ordinance.
(7)The provisions of the Judicial Proceedings (Use of English Language) Act shall apply to a tribunal. Applicability of this Part. 24.
(1)The provisions of this Part shall apply to claims arising from sales made or services provided after the coming into force of this article, and it shall be a condition of any sale or provision of service after the coming into force of this article that the provisions of this Part shall apply to any claims arising therefrom: 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.
(2)It shall not be lawful for the parties to a transaction to which sub-article
(1)refers, to derogate from any right given to a consumer under this Part. Costs and enforcement. Amended by: XXVI. 2000.12; L.N. 425 of 2007; VI. 2011.93. 25.
(1)In any award the arbiter shall determine the costs that an y of the p art ie s i s t o pay t o the other and unless special circumstances so warrant, the losing party shall be ordered to pay the costs of the party in whose favour the decision is awarded: 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.
(2)Costs shall be limited to expenses made directly in connection with the case by the party in whose favour the payment of costs is awarded: 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
(3)A decision of the Tribunal which has become res judicata may be enforced, depending on the residence of the person against whom enforcement is sought, by the Court of Magistrates (Malta) or by the Court of Magistrates (Gozo), as an executive title under the Code of Organization and Civil Procedure: 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. 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. 26.
(1)There shall be a registry for each tribunal.
(2)The records of each tribunal shall be accessible to all persons, and copies shall be given on payment of the prescribed fee to any person on request. Registry, secretary and deputy secretary. Amended by: VI. 2011.95.
(3)The acts and records of a tribunal shall be deposited and kept in any place as the Minister may, with the concurrence of the Minister responsible for justice, by order in the Gazette establish.
(4)The Minister shall appoint a secretary to each tribunal.
(5)The secretary shall subject to such rules as may be made under this Part, have the same functions in relation to the tribunal as the Registrar of the Courts and the Archivist of the Courts have in relation to the superior courts.
(6)The Minister shall also appoint deputy secretaries who shall, subject to rules made as aforesaid, have such duties as are assigned to them by the secretary in general and in particular as are performed by deputy registrars in the superior courts.
(7)Before assuming the functions of their office, a secretary and a deputy secretary shall take and subscribe to an oath before a C o m m is s i on e r f or O a t hs t o p er f o r m t h e i r d u t i e s f a i r l y a n d impartially according to law. 27. The Minister may, with the concurrence of the Minister responsible for justice, make rules for the better functioning of the tribunals established under this Part and may without prejudice to the generality hereof make rules: (
- a)setting out the procedure before the tribunals or in appeals from the tribunals; 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. 28. A registered consumer association is a consumer association which satisfies the Council that it complies with the following requirements: (
- a)that the association has a minimum paid up membership of one hundred members of majority age who are citizens of Malta or permanent residents in Malta; (
- b)that the statute of the association states in substance that the principal object of the association is to promote consumer protection, and to guide, inform and educate consumers; (
- c)that the statute makes provision for the association to be managed by persons freely elected by the members of the association in an election which is held at least once every calendar year; (
- d)that the association does not have the making of profit as one of its objects; and (
- e)that the association is independent of any other association, organisation or grouping whose principal object is not the protection of consumers. Application for recognition. Amended by: L.N. 426 of 2012. 29.
(1)Any consumer association wishing to be recognised as a registered consumer association shall submit to the Council the following: (
- a)an application on the appropriate form issued under the authority of the Council; (
- b)a complete updated copy of its statute duly certified by the person who holds the most senior executive post with the association; (
- c)a list of the association’s members including their respective addresses and the legally valid identification document numbers; and (
- d)the official address of the association. CONSUMER AFFAIRS
(2)The Council shall at its earliest opportunity examine and verify whether the association satisfies the requirements laid down in article 28. Where these requirements are satisfied, the Council shall register the applicant as a registered consumer association, and shall issue a certificate to the association confirming the registration of the said association and the date thereof.
(3)Where the Council determines that an association does not satisfy the requirements for registration, it shall within fourteen days from the date of its decision give notice thereof in writing to the applicant giving the grounds for such a decision.
(4)The Council may refuse to register a consumer association under a name or designation which it considers to be offensive or otherwise undesirable.
(5)A certificate issued by the Council to the effect that a particular consumer association is a registered consumer association which complies with all the requirements laid down under sub-article
(1), shall be valid and conclusive evidence of the fact for all intents and purposes of law.
(6)No fees shall be charged in connection with the registration of a consumer association with the Council. 30.
(1)The Council shall keep a register of all registered consumer associations, stating their names, dates of registration, number of members and any other particulars the Council may deem appropriate. Register of consumer associations.
(2)The register shall be open to inspection by any person free of charge at any time and place as may be determined by the Council: Provided that the identity of the members of a registered consumer association shall not be open to public scrutiny.
- Every registered consumer association shall keep a fully updated record of the names, addresses and the legally valid identification document numbers of its members. Obligation to keep records of members. Amended by: L.N. 426 of
- 32.
(1)A registered consumer association shall submit to the Council all such returns and information on its membership and activities as the Council may from time to time require. Without prejudice to the foregoing, each registered consumer association shall in every calendar year not later than the end of March lodge wi t h t h e C o u n c i l a r e t u r n of i t s m e m b e r s h i p a s at t h e 3 1 s t December of the previous year. Obligation to submit information to Council.
(2)A registered consumer association shall provide the Council with a copy of any amendments to its statute, which copy must be duly certified by the person holding the most senior executive post with the association. Any such amendment must be notified to the Council within fourteen days of its approval by the said association.
- As soon as practicable after the lapse of each successive calendar year but not later than the end of May of each year, the Council to publish annual list. 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.
- Any person who knowingly or recklessly makes a false or misleading statement or declaration or otherwise gives any false or misleading information to the Council under any of the provisions of this Part shall, on conviction, be liable to a fine (multa) of up to two thousand three hundred and fifty euro (€2,350) or to a term of imprisonment not exceeding six months or to both such fine and imprisonment. Exemption and privileges.
- A registered consumer association shall enjoy the rights, benefits, privileges and exemptions granted by this Part for so long as it remains so registered and continues to comply with the requirements of this Part. Exemption from liability. Amended by: II. 2008.
- 36.
(1)Notwithstanding the provisions of any other law, a registered consumer association and any of its officials acting on its behalf shall be exempt from any liability or responsibility whether civil or criminal, in respect of any publication, statement or other communication or activity, which is bona fide and is intended solely for the better information, education or protection of consumers. Such exemption shall extend to all persons publishing, printing, recording, broadcasting or communicating such information by any means whatsoever.
(2)For the purposes of sub-article
(1), a publication, statement, communication or activity shall be deemed to be bona fide when it is not made or undertaken recklessly or maliciously, adheres to the principles of fairness and objectivity, and is not in contravention of any rules of practice made in accordance with article 7
(1)(b).
(3)Any person alleging bad faith by a registered consumer association shall have the burden of proving such allegations. Registered consumer associations and prosecutions. Amended by: VI. 2011.75 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 General or any such laws or regulations as the Prime Minister may from time to time determine by notice published in the Gazette.
(2)In any prosecution by the competent authority made following a report or complaint under sub-article
(1), a representative of the association shall be called to give evidence on the facts known to the association about the complaint or report and indicate to the court any evidence in respect of the charge of which it may be aware.
(3)In the course of the criminal proceedings made as a result of a report or complaint by the association, an official authorised by the association for this purpose shall be entitled to participate and assist in the prosecution of the said offences. Exemption from income tax.
- A registered consumer association shall be exempt from the payment of income tax. CONSUMER AFFAIRS
- The Council may grant to any registered consumer associations such assistance and facilities as he may deem fit from time to time in order to enable them to exercise their functions. Assistance to registered consumer associations. Amended by: XXI of
- 40.
(1)The Council may whenever it considers it to be necessary, consult with registered consumer associations on any matter relating to or arising from the supply of goods and services to consumers. Consultation and initiatives with registered consumer associations.
(2)The Council may also undertake initiatives or campaigns jointly with registered consumer associations as it deems fit from time to time. 41. The Council shall cancel the registration of a registered consumer association in any of the following cases where: (
- a)a request for cancellation is made by the association; 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.
- Nothing in this Part shall be construed as obstructing or limiting the right of persons to set up associations for the protection and promotion of consumer interests without qualifying in terms of article
- In such a case an association which is not registered shall not have any right to consultation, assistance or recognition from the Council, or to any other right, privilege or exemption conferred by this Part upon registered consumer associations. Other consumer associations. PART V Added by: XXVI. 2000.
- Declaration of Principles 43.
(1)The principles stated in sub-article
(2)shall not be directly enforceable in any court or tribunal, but shall be adhered to in the interpretation and implementation of this Act and any regulations made thereunder.
(2)Consumers shall be entitled: (
- a)to have adequate access to basic essential goods and services at reasonable prices and to be able to choose Consumer rights. 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.
(3)A consumer may not waive any rights established in his favour by or under this Act. Added by: XXX. 2015.
- Interpretation. Added by: XXX. 2015.
- Consumer right to access ADR procedures. Added by: XXX. 2015.
- Residual ADR entity or entities. Added by: XXX. 2015.
- PART VI Consumer Alternative Dispute Resolution 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. 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. 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.
(2)An entity designated to exercise the functions of a residual ADR entity shall, in doing so, act independently of the Council, other than in compliance with any legitimate orders, however so described, that the Council may impose to ensure that the aforesaid entity adheres to its obligations at law in the exercise of its role as a residual ADR entity. 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.
(2)Unless provided otherwise by the law, the Council in the exercise of its functions under this Part shall regulate its own procedure.
(3)The Council shall exercise its regulatory functions however so described through its Chairman and, or through one or more of such public officers and, or public entity or entities as may from time to time be authorized by the Council for that purpose: 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. 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. 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.
- Substituted by: XVI.2019.
- 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.
- Unfair contract terms Prohibited terms. Added by: XXVI. 2000.
- Amended by: XIV. 2009.
- 44.
(1)It shall be unlawful in consumer contracts to use unfair terms, or terms or combination of terms which are unfair in that they have as an object or effect any of the objects and effects referred to in sub-article
(2), and any term prohibited as aforesaid inserted in any consumer contract shall be deemed never to have been so inserted.
(2)The terms referred to in sub-article
(1)include terms which have the object or effect of (
- a)excluding or limiting the liability of a trader by reason of his own fraud or gross negligence or that of his employees or agents, or by reason of any failure to fulfil an obligation constituting one of the fundamental elements of the contract; (
- b)establishing an unreasonably short period for notifying the trader of any defects; (
- c)excluding or limiting the legal rights of a consumer against the trader in the event of total or partial nonperformance or inadequate performance by the trader of any of his contractual obligations; (
- d)prohibiting the consumer from offsetting a debt owed to the trader against a claim which the consumer may have against the same trader; (
- e)making an agreement binding on the consumer whereas the provision of services or goods by the trader is subject to a condition whose realisation depends solely on the will of the trader; (
- f)allowing the trader to retain sums paid by the consumer if the consumer decides not to conclude or CONSUMER AFFAIRS perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the trader where the trader is the party cancelling the contract; (
- g)requiring a consumer who fails to fulfil his obligation, to pay to the trader as compensation a sum which is disproportionately high to the value of the goods or services purchased or hired; (
- h)determining the compensation payable by a consumer who fails to fulfil his obligations, without providing for compensation of the same magnitude by the trader who fails to fulfil his; (
- i)limiting the means of proof which the consumer can use; (
- j)causing the consumer to waive any ground of claim against the trader in the event of a dispute; (
- k)prohibiting the consumer from seeking the cancellation of the contract if the trader fails to fulfil his obligations; (
- l)restricting the right of the consumer to cancel the contract if the trader, in connection with any guarantee or warranty given, does not fulfil his obligation or fails to do so within a reasonable period; (
- m)irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract; (
- n)enabling the trader to alter the terms of a contract unilaterally, without a valid reason which is specified in the contract; (
- o)enabling the trader to alter unilaterally, without a valid reason, any characteristics of the product or service to be provided; (
- p)providing for the price of goods to be determined at 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.
(3)The Minister may, after consulting the Council, by regulations amend, substitute or revoke any of the terms listed in sub-article
(2).
(4)The list of terms laid down in sub-article
(2)is not an exhaustive list, and accordingly nothing contained in sub-articles
(1)and
(2)shall be construed as limiting or otherwise prejudicing the generality of the provisions of article 45.
(5)In this Part, the term "goods" shall include immovable property. CONSUMER AFFAIRS 45.
(1)An unfair term means any term in a consumer contract, which on its own or in conjunction with one or more other terms (
- a)creates a significant imbalance between the rights and obligations of the contracting parties to the detriment of the consumer; or Meaning of an unfair term. 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.
(2)The unfairness of a term shall be assessed, taking into account the following: (
- a)the nature of the goods or services for which the contract was concluded; (
- b)the time of conclusion of the contract; and (
- c)all the circumstances attending the conclusion of the contract and all the other terms of the contract or of another contract on which it is dependent. Such circumstances may also include: (
- i)the bargaining power of the parties; (
- ii)whether a consumer was subjected to undue pressure; and (iii) whether the lack of knowledge or skill of a consumer was improperly taken advantage of. 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.
(3)The provisions of articles 44 to 47 shall be applicable to contracts concluded or executed after the coming into force of these articles.
- A consumer contract that includes a prohibited or unfair term shall not be binding on the consumer unless the contract is capable of continuing in existence without the unfair term. Consequence of inclusion of unfair or prohibited term. Added by: XXVI. 2000.
- 47.
(1)In any consumer contract, where all or some terms offered by a trader to a consumer are in writing, these terms shall be w r i t t e n i n p la i n an d i n t e l l i g i b le l a n g u a ge w h i c h ca n b e understood by the consumers to whom the contract is directed. Use of plain language in consumer contract. Added by: XXVI. 2000.15. Amended by: XIII. 2009.4.
(2)Where any term is ambivalent or any doubt arises about the meaning of a term, the interpretation most favourable to the consumer shall prevail: CONSUMER AFFAIRS Provided that this sub-article shall not apply to proceedings brought under article
- Protection in case of a term applying the law of a nonMember State. Added by: II. 2008.
- 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.
- 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.
- 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.
- (Deleted by II. 2008.27). Meaning of comparative advertising. Added by: XXVI. 2000.
- (Deleted by II. 2008.27). Permitted comparative advertising. Added by: XXVI. 2000.
- (Deleted by II. 2008.27). Offering gifts and prizes. Added by: XXVI. 2000.
- (Deleted by II. 2008.27). Interpretation. Added by: II. 2008.
- Amended by: VI. 2014.4.; XIII.2022.
- 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.
- 51B.
(1)Unfair commercial practices shall be prohibited.
(2)A commercial practice shall be unfair if: (
- a)it is contrary to the requirements of professional diligence, and (
- b)it materially distorts or is likely to materially distort the economic behaviour with regard to the product, of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers: 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.
(3)In particular, a commercial practice shall be unfair if it is misleading in terms of articles 51C and 51D, or aggressive in terms of article 51E.
(4)Those commercial practices listed in the First Schedule shall in all circumstances be regarded as unfair. Misleading actions. Added by: II. 2008.28. Amended by: XIII.2022.6. 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. 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.
(2)Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
(3)In the case of an invitation to purchase, the following information shall be regarded as material, if not apparent from the context: (
- a)the main characteristics of the product, to an extent appropriate to the medium and the product; (
- b)the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting; (
- c)the price inclusive of taxes, or where the nature of the product means th