Pursuing Consumer Rights in Malta
In Malta securing consumer confidence is of the essence as this builds trust and adds credibility to the market. Indeed, it is the primary function of consumer authorities and regulators to curtail abuse which might affect the consumer’s welfare and economic interest along with preserving a competitive environment.
The Constitutional Court declared that the procedure introduced in 2011 to investigate competition matters was inconsistent with the Constitution. Briefly, the problem arose after a government entity was empowered to investigate, accuse and decide in relation to an alleged offence of a criminal nature and impose hefty fines. This was halted as it was contrary to the individual’s fundamental right of a fair hearing before a court.
It is feared that this outcome rendered the consumer regulator redundant leaving consumers unprotected. Is it so?
Indeed, the enforcement of competition law has been weakened. This does not mean that the Consumer Authority is helpless. Other measures may be resorted to as a stopgap until the necessary changes to the ordinary law are made.
Although the current regime to enforce competition law is stalled, a second parallel system is still operational and allows the court to impose fines. Regrettably, this only applies to investigations looked into before the competition law was amended in 2011.
The law, however, allows for the carrying out of market reviews. In this regard one may recall the sector inquiry concerning interest rates charged on loans to small and medium-sized enterprises in Malta. The report flagged a number of issues which were followed up by the Consumer Authority.
Additionally, the authority may ensure compliance through advocacy. This has proved to be the authority’s primary tool for encouraging parties to adhere with the law without resorting to stricter measures. It may be countered that the inability to impose fines may limit the effectiveness of these methods. This may be partially addressed by periodically publishing market reviews.
The Statistics Office and the Central Bank periodically publish research on aspects of the economy. Likewise, the Communications Authority publishes half-yearly market reviews and statistics including trends in consumer complaints.
It would be interesting to learn what the opinion of the Consumer Authority is on issues such as those concerning the property market including pricing, the rental market, or how any practices carried out therein may impact the consumer.
This is an opportunity for the authority to go beyond what is published in its annual report and provide details on specific issues.
As the authority is enabled by the law to co-ordinate competition with consumer policies, this can be exploited by referring to issues which may emanate from the enforcement of other laws.
What is the opinion of the Consumer Authority on issues such as those concerning the property market including pricing and the rental market?
Indeed, the law allows the Consumer Authority to institute court proceedings in relation to several abuses taking place in the market such as unfair contract terms, unfair commercial practices and illicit schemes, issues concerning sale of goods, and price indication on goods offered for sale. Upon conviction a person may be fined.
Publicly available records show that procedures have indeed been recently taken in relation to price indications regulations.
The Consumer Authority may withdraw dangerous products from the market, issue public notices and prosecute before the court on these matters. Currently, together with the Energy Authority, it is ensuring that gas cylinders and regulators are safe.
It has been reported that some gas regulators offered for sale “are not of good quality” and the use of propane in the LPG mix for gas cylinders could be hazardous. Can the two authorities inform consumers whether there is cause for concern?
On a separate matter, it is important that the legislator clarifies issues raised by the Court of Magistrates in its criminal judicature regarding the Inspection of Lifts Regulations. Issues such as inconsistent prescriptive periods may be problematic for proper enforcement.
Other public entities may ensure consumer rights. In the tourism sector, the Tourism Authority enforces the timeshare and package travel regulations. In case of an infringement it can initiate proceedings before the court. Indeed, there have been instances where operators were taken to court.
An area of concern is in relation to the increasing number of Consumer Claims Tribunal decisions, which are not being respected by traders. To date public warning statements have been made for around 31 cases. Are consumers enforcing their decisions in court to seek a remedy as envisaged by the 2011 amendments?
This brief overview shows that despite serious stumbling blocks consumers may still be protected. A shield is still available to pursue consumer rights. It is a matter of using it.
Dr Antoine Grima lectures consumer law at the Faculty of Laws at the University of Malta.
By Antoine Grima