Tag: competition

Fuel Sector – Violation of Competition Law

A recent decision of the Office for Competition found there to be a violation of the competition law rules in a vertical agreement, which took effect when a fuel station, having reduced its price for diesel from a particular supplier, later raised its price again, having succumbed to pressure from that supplier in order to do so.

The Office found there to be a violation of competition law in terms of there being an agreement to maintain high prices for the said diesel. The supplier violated the law in submitting the fuel station owner to raise its prices (and thus to reverse the price reduction). The fuel station owner, to a lesser extent, was declared to have violated competition law by succumbing to that pressure.

This, and other decisions of the Office for Competition, can be downloaded Decisions of the Office for Competition.

Such decisions are subject to appeal to the Consumer and Competition Appeals Tribunal.

By virtue of a recent Constitutional Court judgment, the Office for Competition is currently unable to impose fines when finding infringements of competition law.

Google – EU competition law breach accusations

The European Commission sent a statement of objections to the tech firm, alleging that it has breached EU competition law.

Google is accused of placing onerous requirements on firms using Android and stifling competition.

Google has 12 weeks within which to reply and, if found to be abusing its dominant position, could face large fines and have to change its practices with respect to companies opting to obtain a licence to use its apps on their products (smartphones).

Read the BBC article here.

Article 102 of the Treaty on the Functioning of the European Unioni prohibits abuses of dominant positions as follows:

Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

In particular, under established case law, a dominant position has been defined as:

[…] a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers.

In general a dominant position derives from a combination of several factors which, taken separately, are not necessarily determinative.

This definition has now been adopted widely as the concise definition on which dominance is assessed in case law.

The Court of Justice of the European Union publishes its case law here.

Public Authorities under Maltese Competition Law

When Is a Public Authority an “Undertaking”? Insights from Maltese and EU Competition Law

In a recent decision, the Competition and Consumer Tribunal upheld the position of the Office for Competition. It confirmed that a public authority is not considered an “undertaking” under Maltese competition law unless it performs a commercial function.

The Case: Tourism Subsidies and Alleged Discrimination

The dispute concerned a subsidy granted by the Malta Tourism Authority (MTA) to various tourism operators. One operator claimed it had been unfairly treated in comparison to others. However, the Office for Competition concluded that the MTA did not qualify as an undertaking under Articles 5 and 9 of the Competition Act (Chapter 379, Laws of Malta). This was because the MTA’s role is regulatory in nature, not commercial.

Legal Framework and EU Law Perspective

EU case law, including decisions by the Court of Justice of the European Union (CJEU), defines an “undertaking” as any entity engaged in an economic activity, regardless of legal status or funding method. Economic activity means offering goods or services in a market.

According to Article 5(2) of the Malta Travel and Tourism Services Act, the MTA must follow government policy to promote tourism and may only invest with ministerial approval. These functions are inherently public, regulatory duties—not economic or commercial ones.

Distinguishing Regulatory from Commercial Functions

Although public authorities can sometimes be considered undertakings under EU law, this only applies if they are conducting economic activities. If their actions are linked to the exercise of public authority, they fall outside the scope of competition law.

One relevant case is the CJEU’s Corinne Bodson v Pompes Funèbres case. Here, the court  emphasised that tasks serving the public interest and forming part of essential State functions do not amount to economic activity.

The Tribunal agreed that MTA, in managing these subsidies, acted in the public interest and not in a commercial capacity. As such, its actions were not subject to competition law provisions.

Past Precedents and Final Ruling

The complainant referenced a previous case which had concluded that the MTA was an ‘undertaking’. However, the Tribunal clarified that the earlier decision was specific to a different context—relating to board composition involving private entities—and could not apply here.

Citing authoritative texts like Jones & Sufrin’s work on competition law, the Tribunal reiterated that activities linked to public authority powers are not economic in nature. Thus, it held that the MTA is not an ‘undertaking’ and dismissed the complaint.

Final Thoughts: Competition Advocacy Still Matters

The Office for Competition continues to play an advocacy role. It regularly reminds public authorities to ensure that their policies and measures do not distort or hinder competition, particularly in sector-wide initiatives.