The Implications of the Constitutional Court Decision in Thake v Kummissjoni Elettorali on the Proposed Amendments to the Competition Act and Other Related Legislation

This article was written by Dr Richard Camilleri, Dr Annalies Muscat and Dr Laura Spiteri

In Thake et v Kummissjoni Elettoraliet, decided on the 8 October 2018, the Constitutional Court held that when it is alleged that a criminal offence has been committed or the severity of the fine imposed means that the conduct in question is deemed to be of a criminal nature, the matter must be determined solely by a court and not by any other body or judicial organ (see more here). This line of reasoning confirms the decision of the same court in Federation of Estate Agents v Direttur Generali (Kompetizzjoni) et decided on the 3 May 2016.

Following the decision of Federation of Estate Agents, Parliament published a Bill proposing amendments to the Competition Act ('the Act'), the Consumer Affairs Act and other related legislation (more information on the proposed amendments can be found here). One of the proposals in the Bill concerns Article 13A of the Act. Presently, Article 13A grants undertakings the right to appeal from an infringement decision adopted by the Director General (Competition) ('the Director General') before the Appeals Tribunal. This procedure was deemed anti-constitutional in Federation of Estate Agents. The Bill proposes the removal of any reference to the Appeals Tribunal, substituting its jurisdiction for that of the Civil Court (Commercial Section). The first decision finding an infringement or imposing fines remains, nonetheless, in the hands of the Director General.

Thus, according to the Court's decision in Thake et v Kummissjoni Elettorali et, the proposed amendment, as well as Articles 12, 12A, and 21 of the Act, would still be in violation of the right to a fair hearing guaranteed by Article 39(1) of the Constitution since the first stage of competition proceedings is left in the hands of the Director General and not a court. The decision of the Constitutional Court has far-reaching effects since its reasoning extends not only to other related legislation that the Bill proposes to amend which leave the first stage of proceedings having a criminal nature in the hands of either a Director General or another body that is not a court, but also to other non-related legislation which imposes administrative fines of a similar nature.

As the situation currently stands, the Director General and the Appeals Tribunal are effectively precluded from imposing any fines. In light of the Thake judgement, the proposed Bill needs to be further amended so as reflect the reasoning of the Constitutional Court and to clarify the powers of the Director General. However, there has been no mention of the need to amend the Bill as yet.