In Liquigas Malta Limited vs. Ufficcju ghall-Kompetizzjoni (Application number 1/2011; 14 April 2015) the Competition and Consumer Appeals Tribunal annulled a decision and an order to cease and desist issued by the Office for Competition against Liquigas Malta Limited, because in the proceedings that led to the decision and order the Office did not comply with the principles of natural justice.
The Tribunal first noted that the Office was obliged to respect the principles of natural justice, including that the relative undertaking had to have the opportunity to understand the complaint against it and to give its replies adequately. This results both from local jurisprudence regarding the applicability of the principles of natural justice, as well as jurisprudence of the Court of Justice of the European Union ("Court of Justice") and European Union ("EU") Regulations. Reiterating its decision in Mizzi vs Office for Competition (Application number 1/2011; 27 February 2013) the Tribunal stated that once the Competition Act (Cap. 379 of the laws of Malta) does not provide any specific rules of procedure in this regard, the Office is obliged to observe the principles and provisions deriving from EU jurisprudence and Regulations.
The Tribunal pointed out that although from the chronology of events the period in which the decision and order were given was short, this did not necessarily equate to a breach of the right of fair hearing by the Office. However, in this case the period of time between when the Office received the complaint and when the decision and order were handed down was in fact extremely short. The urgency of the case or the fact that the decision could be reviewed and overturned by the Tribunal did not justify that the right of fair hearing be put aside or prejudiced.
In this case, the Office received the complaint an hour and a half before the first meeting with the relevant undertaking was held, and therefore the undertaking could not be prepared to reply to the complaint; this was contrary to what was established in Transocean Marine Paint Association v Commission (Case 17/74; [1973] ECR 1063), where the Court of Justice held that the general rule is that an undertaking should be 'clearly informed, in good time, of the essence of the conditions to which the Commission intends to subject and exemption and it must have the opportunity to submit its observations to the Commission.' Although during this first meeting the complaint was read to the undertaking, the undertaking was not given a copy in writing of the said complaint, and this was in breach of Articles 10(1) and 10(2) of Commission Regulation (EC) 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty. Contrary to the terms of these provisions, in an email sent by the office, the Office did not establish a time period within which the undertaking was to reply; it simply required the relevant undertaking to reply at its earliest. Therefore, the undertaking being investigated was not in a position to regulate its position in the best possible manner.
The facts of the case showed that the undertaking being investigated was not given access to the file, in breach of Article 27 of Council Regulation (EC) of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, in terms of which the undertaking had the right to be informed of all the evidence in the Office's possession and the arguments brought forward by the parties to the case. Article 27 also requires that the undertaking be heard on the matters to which the Commission takes objection, and the Commission's decision be to be based on objections on which the parties have been able to comment, which reflects what was decided in SA Musique Diffusion Française and others v Commission ([1983] ECR 1825; Cases 100-103/80).
This judgment therefore confirms that the principles of natural justice must be applied by the Office for Competition when it is carrying out its investigations, and that, even in cases falling under the Competition Act prior to its amendment by virtue of Act VI of 2011, the principles contained in EU Regulations and in judgments of the Court of Justice apply when local law is silent.
The Mamo TCV team was composed of partner Dr Richard Camilleri and associate Dr Annalies Azzopardi
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