Relevant legislation and statutory standards

Malta had its first ad hoc merger control legislation in 2003 with the promulgation of the Control of Concentrations Regulations in 2002, which entered into force on 1 January 2003. Prior to that date, the government agency responsible for competition law enforcement, the Office for Fair Competition, had attempted to curb anti-competitive mergers and acquisitions through the application of the general provisions of the antitrust statute, the Competition Act, in particular through the provisions prohibiting collusive practices and abusive conduct that are modelled on Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

Several undertakings had actually sought clearance from the Office before concluding a merger or acquisition because Article 10 of the Competition Act had obliged undertakings to seek negative clearance from the Office if they believed, or reasonably ought to have believed, that an agreement or concerted practice or conduct might have fallen within the prohibition. However, in most cases the provisions of the Act were found to be inadequate tools for proper merger control either because the concentration could not be classified as an ‘agreement’ or ‘concerted practice’ or because, as happened in the Supermarkets Concentration case, the acquiring firm was not in a dominant position prior to the merger but would have acquired dominance only as a result of the merger. Indeed, in that case, the Commission for Fair Trading, the independent tribunal entrusted with the adjudication of serious competition-related infringements, strongly advocated the promulgation of ad hoc merger regulations to address this lacuna.