Leniency as a tool for cartel detection : the position in the EU and Malta

Abstract

Malta is the only EU Member State which does not have an operative national leniency programme. This Research Project is intended to give a fuller picture of the current situation in the EU, particularly in Malta, concerning the competition law issues surrounding cartels and the instruments used by the European Commission and the National Competition Authorities to combat the latter. After analysing the state of interdependence between public and private enforcement and the impact of the 2014 Damages Directive on the leniency policy, the 2006 Commission Leniency Notice and the 2006 European Competition Network Model Leniency Programme as revised in 2012 are discussed. The Research Project then focuses on the situation in Malta – a State where collusion is likely to be present particularly as a result of its geographical nature and area. Although a member of the EU and of the European Competition Network, and although the Office for Competition within the Malta Competition and Consumer Affairs Authority has already drafted and published on its website Draft Leniency Regulations in 2013, Malta still lacks an operative leniency programme. In an interview carried out with the Office for Competition, the latter highlighted that the delay in its implementation has been brought about by the Constitutional case in the names of Federation of Estate Agents v Direttur Generali (Kompetizzjoni) et (2015) which is pending appeal and should be decided on the 29th April, 2016. To this effect, the extent to which the judgement of the Constitutional Court should impinge on the adoption of the draft regulations in case it was to uphold the first Court’s decision is analysed. The conclusion is that the decision to stultify the Maltese leniency programme as a precautionary measure is difficult to comprehend.