A study of the regulation of utilities in Malta

Abstract

The utilities considered in this thesis namely electronic communications, postal services, electronic commerce, electricity, gas and water are all essentials of everyday life. It is therefore imperative that the regulation of these utilities is effectively and efficiently catered for by well-resourced regulators. To date few studies have been undertaken in Malta addressing the overall regulation of these utilities under Maltese law. The present regulatory regime whereby regulatory oversight is shared between on the one hand, two sector specific utilities regulators - the Malta Communications Authority (MCA) and the Regulator for Energy and Water Services (REWS) - and on the other hand the national competition and consumer regulators - namely the Director General (Consumer Affairs) and the Director General (Competition) within the Malta Competition and Consumer Affairs Authority (MCCAA) - has been in place in one form or another for more than two decades. During this period issues have arisen highlighting various deficiencies. These include the overlap of roles of the competent regulatory authorities, leading at times to lack of clarity as to which authority has regulatory responsibility in dealing with certain issues, the lack of uniformity in the enforcement tools available to the regulators leading to a situation where one regulator is better equipped to deal with some instances of non-compliance than the other, and issues relating to the independence and accountability of the regulators in the exercise of their regulatory functions. This notwithstanding, to date no detailed evaluation has been undertaken about the suitability of the current regime and the regulatory tools in place, in particular whether there are more suitable options more so given a continuously changing regulatory environment characterised in part by new European Union (EU) norms relating to matters that impact the provision of the utilities discussed in this thesis. In addressing these and other matters the author considers various key aspects relating to the regulation of utilities in Malta. These include: the current regime regulating the provision of utilities, if this should remain in place or whether there are other feasible options such as a multi-sector utilities regulator or going a step further, a ‘super’ utilities regulator which also assumes the mantle of national competition and consumer protection regulation; the composition of the headship of the regulators, the criteria on the basis of which the persons forming part of the headship should be chosen, and the procedure relating to their appointment to and removal from office; the independence and accountability of the regulators; the enforcement tools used by the regulators, notably whether regulators should be empowered to impose dissuasive sanctions directly or else seek court orders to impose such sanctions; judicial review of regulatory decisions, notably the composition and remit of the judicial review forum; and consumer redress where different aspects of consumer protection are regulated by different public authorities leading to a fragmented regulatory regime to the detriment of both consumers and utility service providers. In discussing many of these aspects the chronology of the laws enacted commencing from 1997 when the first utility regulator in Malta was established, is traced highlighting the changes introduced through the years up to the 30 th September 2022. One crucial factor that underlines many of the aspects discussed is the impact of EU legislation, which has at least since the accession of Malta as a member state of the EU in 2004, been pivotal in motivating various regulatory measures in relation to the utilities considered in this thesis. The underlying vision of the author in the various proposals made in this thesis is to have in place a single utilities regulator with remit to deal with all aspects of competition and consumer protection at least in so far as these relate to the provision of utilities, ensuring that the regulator has access to effective and timely enforcement tools the use of which is in turn subject to judicial review.