Unfair competition and advertising in Malta

Abstract

This thesis attempts to analyse the provisions of Directive 2006/114/EC concerning Misleading and Comparative Advertising and identify whether it has been properly implemented into Maltese Law. Throughout the thesis, reference is made to a number judgments which are pronounced both by local courts as well as by the ECJ, as a means of fueling dicussions. The first Chapter gives a general overview of what advertising is and the use to which it is put as a modern day marketing strategy. It then delves into the history of its regulation from an EU perspective, starting with the initial promulgation of Directive 84/450/EEC up till the present day Directive. Furthermore, this chapter goes into the the history of the implementation of the provisions concerning Misleading and Comparative Advertising into Maltese Law, from their initial position in the Consumer Affairs Act till their transfer to the Commercial Code, where they exist today, using the relevant Parliamentary Debates as a means of identifying the rationale behind such positioning and re-poisitioning. Chapter 2 focuses on the definition of Advertising, acknowledging that such a definition is of paramount importance owing to the fact that whatever is not encompassed by such a definition would not be governed by the provisions concerning Misleading and Comparative Advertising. Chapters 3 and 4 tackle Misleading and Comparative Advertising, respectively. In both these Chapters reference is made to the Sections of the Commercial Code which pre-dated the implementation of Directive 2006/114/EC into Maltese and question their relevance post-implementation. In the Chapter entitled ‘Enforcement’ the provisions dealing with Misleading and Comparative Advertising are examined with the scope of determining who the proper plaintiff and proper defendant for an action instituted on the basis of these provisions are and in this context the definition of ‘Trader’ in Maltese Law as compared to that found in the Directive is expounded upon. As a concluding note the remedies provided by the Directive and those provided in terms of Section 37 of the Commercial Code are examined and compared in an attempt to identify whether the Maltese Government has fulfilled its obligations in terms of the Directive.