Sustainability and Competition Global Practice Guide |
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Malta |
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(Europe)
Firm
Ganado Advocates
Contributors
Clement Mifsud-Bonnici |
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| Are ESG measures/sustainability agreements included in your jurisdictional competition regime? | Yes. In so far as such ESG measures and sustainability agreements fall within the scope of "agreements between undertakings, decisions by associations of undertakings and concerted practices” then they are reviewable under Article 5 of the Malta Competition Act and, where they may have an effect on trade between the EU Member States, also under Article 101 of the Treaty of the Functioning of the European Union. |
| If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022? | Not applicable. |
| Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct? | The Malta national competition authority (“Malta NCA”) has not issued guidance on ESG or sustainability specifically in the context of competition law, unlike some other competition authorities. However, we understand that the Malta NCA would be participating in the discussions taking place on the matter within the European Competition Network and closely following, the work of the European Commission and other competition authorities on the matter. Furthermore, the Malta NCA is required by law to have recourse to European Commission Guidelines. Pertinent to this subject is the European Commission Guidelines on Vertical Restraints1. The European Commission has also published the draft Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to Horizontal Cooperation Agreements2 which contain a specific chapter on sustainability agreements. These are currently under review and should be published later this year. The Malta NCA may also be guided by other sources where such sources are consistent with EU competition law.
__________ 1 OJ [2022] C 248/1. 2 Available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022XC0419%2803%29. Accessed 16 August 2022. |
| Has your jurisdiction issued guidance regarding competitor collaborations or participating in industry working groups, and if so, do they specifically address ESG? | The Malta NCA has not published guidelines on coordinated conduct. |
| Can parties seek specific guidance from authorities on proposed ESG initiatives? | There is no formal procedure whereby the parties can seek clearance or exemption of their agreement or specific guidance on their agreement. However, the Malta NCA is usually amenable to discussing any concerns or doubts the parties may have and offering informal guidance. |
| How, if at all, does your jurisdiction quantify or calculate the ESG effects? | There is no specific national law or guidance on how claims of ESG effects can be quantified or calculated for the purposes of competition law assessments. As with other types of agreements, the parties will need to show that their agreement is objectively justified or that the benefits resulting from their agreement outweigh any anti-competitive effects on the relevant market. In the case of mergers, the parties can rely on efficiency claims. |
| What does your legal authority currently permit even if your agency is not yet active on this topic? | ESG measures and sustainability agreements that do not restrict competition are permitted. Where such measures and agreements have as their object or effect the distortion of competition, the parties should be able to prove that the four conditions under Article 101(3) TFEU and Article 5(3) of the Competition Act are all satisfied. |
| Are there precedents that involved ESG/sustainability matters in your country? If so please provide a short description. | No, as far as we are aware. |
| Is there specific antitrust regulation in your jurisdiction to be aware of which might give rise to private or class action ESG litigation? | Yes. The Collective Proceedings Act permits an opt-in class action in cases where competition law is breached. Further, Malta has transposed the EU Damages Directive 2014/104/EU and this has strengthened the private action for a competition law infringement. |
Sustainability and Competition Global Practice Guide
Malta
(Europe) Firm Ganado AdvocatesContributors Clement Mifsud-Bonnici Sylvann Aquilina Zahra
Updated 06 Sep 2022Yes. In so far as such ESG measures and sustainability agreements fall within the scope of "agreements between undertakings, decisions by associations of undertakings and concerted practices” then they are reviewable under Article 5 of the Malta Competition Act and, where they may have an effect on trade between the EU Member States, also under Article 101 of the Treaty of the Functioning of the European Union.
Not applicable.
The Malta national competition authority (“Malta NCA”) has not issued guidance on ESG or sustainability specifically in the context of competition law, unlike some other competition authorities. However, we understand that the Malta NCA would be participating in the discussions taking place on the matter within the European Competition Network and closely following, the work of the European Commission and other competition authorities on the matter.
Furthermore, the Malta NCA is required by law to have recourse to European Commission Guidelines. Pertinent to this subject is the European Commission Guidelines on Vertical Restraints1. The European Commission has also published the draft Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to Horizontal Cooperation Agreements2 which contain a specific chapter on sustainability agreements. These are currently under review and should be published later this year.
The Malta NCA may also be guided by other sources where such sources are consistent with EU competition law.
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1 OJ [2022] C 248/1.
2 Available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022XC0419%2803%29. Accessed 16 August 2022.
The Malta NCA has not published guidelines on coordinated conduct.
There is no formal procedure whereby the parties can seek clearance or exemption of their agreement or specific guidance on their agreement. However, the Malta NCA is usually amenable to discussing any concerns or doubts the parties may have and offering informal guidance.
There is no specific national law or guidance on how claims of ESG effects can be quantified or calculated for the purposes of competition law assessments.
As with other types of agreements, the parties will need to show that their agreement is objectively justified or that the benefits resulting from their agreement outweigh any anti-competitive effects on the relevant market. In the case of mergers, the parties can rely on efficiency claims.
ESG measures and sustainability agreements that do not restrict competition are permitted. Where such measures and agreements have as their object or effect the distortion of competition, the parties should be able to prove that the four conditions under Article 101(3) TFEU and Article 5(3) of the Competition Act are all satisfied.
No, as far as we are aware.
Yes. The Collective Proceedings Act permits an opt-in class action in cases where competition law is breached. Further, Malta has transposed the EU Damages Directive 2014/104/EU and this has strengthened the private action for a competition law infringement.