Consumer Affairs Act (Cap. 378), article 115

115. No precautionary warrant or ot her order under any other law shall be issued by any court or tribunal restraining or restric ting the Director General in the exercise of his functions under this Ac t and under the Malta Competition and Consum er Affairs Authority Act. 74 CAP. 378.] CONSUMER AFF AIRS CONSUMER AFF AIRS [CAP. 378. 75 Commercial Prac tices which are ipso jure unfair Misleading commer cial practices 1. Claiming to be a signatory to a code of conduct when the trad er is not. 2. Displaying a trust mark, quality mark or equivalent without h aving obtained the necessary authorisation. 3. Claiming that a code of conduct has an endorsement from a pub lic or other body which it does not have. 4. Claiming that a trader, includi ng his commercial practices, o r a product has been approved, endorsed or authorised by a public or private bo dy when he has not, or making such a claim without complying with the terms of the approval, endorsement or authorisation. 5. Making an invitation to purchase products at a specified pric e without disclosing the existence of any reasonable grounds the trader m ay have for believing that he will not be able to offer for supply or to procure anot her trader to supply, those products or equivalent products at that price for a perio d that is, and in quantities that are, reasonable having regard to the product, t he scale of advertising of the product and the price offered (bait advertising). 6. Making an invitation to purchase products at a specified pric e and then: (a) refusing to show the advertised item to consumers; or (b) refusing to take orders for it or deliver it within a reasonab le time; or (c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch). 7. Falsely stating that a product will only be available for a v ery limited time, or that it will only be available on particular terms for a ver y limited time, in order to elicit an immediate decision and deprive consumers of sufficien t opportunity or time to make an informed choice. 8. Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language wh ich is not an official language of the Member State where the trader is located and th en making such service available only in another language without clearly disc losing this to the consumer before the consumer i s committed to the transaction. 9. Stating or otherwise creating the impression that a product c an legally be sold when it cannot. 10. Presenting rights given to consumers by law as a distinctive feature of the trader’s offer. 11. Without prejudice to the provisions of the Broadcasting Act (Cap. 350) and any regulations made thereunder, using editorial content in the media to promote a product where a trader has paid for the promotion without makin g that clear in the content or by images or sounds clearly identifiable by the cons umer (advertorial). 11a. Providing search results i n response to a consumer’s onlin e search query Added by: II. 2008.55. Amended by: VI. 2014.10; XVI.2019.27; XIII.2022.10. FIRST SCHEDULE (Article 51B(4)) 76 CAP. 378.] CONSUMER AFF AIRS without clearly disclosing any paid advertisement or payment sp ecifically for achieving higher ranking of products w ithin the search results. 12. Making a materially inaccurate claim concerning the nature a nd extent of the risk to the personal safety or s ecurity of the consumer or his family if the consumer does not purchase the product. 13. Promoting a product similar to a product made by a particula r manufacturer in such a manner as deliberately to mislead the consumer into b elieving that the product is made by that same manufacturer when it is not. 14. Establishing, operating or promoting a pyramid promotional s cheme where a consumer gives consideration for the opportunity to receive com pensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products. 15. Claiming that the trader is a bout to cease trading or move p remises when he is not. 16. Claiming that produ cts are able to faci litate winning in gam es of chance. 17. Falsely claiming that a produ ct is able to cure illnesses, d ysfunction or malformations. 18. Passing on materially inaccura te information on market condi tions or on the possibility of finding the product, with the intention of induc ing the consumer to acquire the product at conditions less favourable than normal m arket conditions. 19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes descr ibed or a reasonable equivalen t. 20. Describing a product as "gratis", "free", "without char ge" o r similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collectin g or paying for delivery of th e item. 21. Including in marketing material an invoice or similar docume nt seeking payment which gives the consumer the impression that he has alr eady ordered the marketed product when he has not. 22. Falsely claiming or creating th e impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer. 23. Creating the false impression t hat after-sales service in re lation to a product is available in a Member State ot her than the one in which the product is sold. 23a. Reselling events tickets to consumers if the trader acquir ed them by using automated means to circumvent any limit imposed on the number o f tickets that a person can buy or any other rul es applicable to the purchase of tickets. 23b. Stating that reviews of a product are submitted by consumer s who have actually used or purchased the product without taking reasonabl e and proportionate steps to check that they ori ginate from such consumers. 23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements , or misrepresenting consumer r eviews or social endorsements, in order to promote products. Aggressive commercial practices 24. Creating the impression that the consumer cannot leave the p remises until a contract is formed. 25. Conducting personal visits to the consumer’s home ignoring t he consumer’s CONSUMER AFF AIRS [CAP. 378. 77 request to leave or not to return except in circumstances and t o the extent justified, under national law, to enforce a contractual obligation. 26. Making persistent and unwanted solicitations by telephone, f ax, e-mail or other remote media except in circumstances and to the extent ju stified under national law to enforce a contractual ob ligation. This is without prejud ice to the Data Protection Act (Cap. 586) and the Processing of Personal Data (Electronic Communications Sector) Regulations (S.L. 586.01). 27. Requiring a consumer who wishes to claim on an insurance pol icy to produce documents which could not reasonably be considered rele vant in determining whether the claim wa s valid, or failing systematica lly to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights. 28. Including in an advertisement a direct exhortation to childr en to buy advertised products or persuade their parents or other adults t o buy advertised products for them. This provision is without prejudice to rule 6 of the Broadcasting Code for the Protection of Minors (S.L. 350.05). 29. Demanding immediate or deferred payment for, or the return o r safekeeping of, products supplied by the tra der, but not solicited by the c onsumer (inertia selling). 30. Explicitly informing a consumer that if he does not buy the product or service, the trader’s job or livelihood will be in jeopardy. 31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equival ent benefit, when in fact either: - there is no prize or other equivalent benefit, or - taking any action in relation to claiming the prize or other e quivalent benefit is subject to the consum er paying money or incurring a cost. 1. In determining the amount of the penalty specified in article 106A, in respect of the infringements of the arti cles referred to in this Schedu le, and without prejudice to the provisions of article 106A(3), the Civil Court shall also be guided by the following considerations. Infringements under article 51F 2. For each infringement under article 51F, the basic amount of the penalty shall be two thousand three hundred and fifty euro (€2,350): Added by: II. 2008.56. Amended by: VI. 2011.75, 119; VI. 2014.11. Substituted by: XVI.2019.28. Amended by: XLIV .2021.18. SECOND SCHEDULE (Article 106A(3)) Penalties 78 CAP. 378.] CONSUMER AFF AIRS Provided that the Civil Court may, in establishing the penalty, t a k e i n t o account circumstances that may lead to an increase or decrease in the basic amount: Provided further that the Civil C ourt shall do so on the basis of an overall assessment which takes into acc ount all the relevant circumstan ces. 3. The Civil Court may impose a higher penalty than the basic am ount where there are aggravating circumstan ces, having regard to the gravi ty and duration of the infringement and, or the amount of gains improperly made as a result of the infringement. 4. Without prejudice to the gene rality of rule 3, the following shall in all cases be deemed as aggravating circumstances: - where the infringement is an u nfair commercial practice listed i n the First Schedule, the basic amo unt shall be increased by a su m not less than one thousand seven hundred and fifty euro (€1,750 ) and not more than four thousand six hundred and fifty euro (€4,650); - i n t h e c a s e o f a s e c o n d o r s u b s e q u e n t i n f r i n g e m e n t , t h e b a s i c amount shall be increased by two thousand three hundred and fif ty euro (€2,350) for each and ever y subsequent infringement; - where the practice or scheme constituting the infringement is t h e principal means by which the trader runs or operates his busine ss, the basic amount shall be increas ed by a sum not less than one thousand seven hundred and fifty euro (€1,750) and not more tha n four thousand six hundred and fifty euro (€4,650); - where the practice or scheme constituting the infringement is specifically targeting vulnerable consumers, the basic amount s hall be increased by two thousand three hundred and fifty euro (€2,350); - where the unfair commercial prac tice is accompanied by any of the factors listed in article 51E(2) of the Act, the basic amount s hall be increased by a sum not less than one thousand seven hundred and fifty euro (€1,750) and not more than four thousand six hundred and fifty euro (€4,650). 5. The basic amount of the penalty may be decreased where the Ci vil Court finds that there are mitigating circ umstances, in particular: - where the person concerned provides evidence that he terminat ed the unfair commercial practice constituting the infringement as soon as the Director General commenced investigations under article 12, the basic amount shall be decreased by not more than twenty per centum; CONSUMER AFF AIRS [CAP. 378. 79 - where the person concerned provides evidence that he has take n adequate steps to reduce the negative effects of the infringeme nts, the basic amount shall be decreased by not more than ten per centum. 6. The final amount of the penalty for each and every infringeme nt, shall not, in any event, exceed forty-seven thousand euro (€47,000) or be low er than four hundred and seventy euro (€470). Infringements under article 12A 7. For the infringement referred to in article 12A, the amount o f the penalty shall not be less than four thousand six hundred and fifty euro (€4,6 50) and not more than forty-seven thousand euro (€47,000) Infringements under article 12E 8. For the infringement referred to in article 12E, the amount o f the penalty shall not be less than four thousand six hundred and fifty euro (€4,6 50) and not more than eleven thousand six hundred and fifty euro (€11,650): Provided that in the case of non- compliance with the decree of the Civil Court ordering an interim measure, the Civil Court shall also impose a daily penalty of not less than one hundred and twenty euro (€120) and of not more than two hundred and thirty euro (€230) for each day of non-compliance. Infringements under article 12G 9. For the infringement referred to in article 12G , the amount o f the penalty shall not be less than four thousand six hundred and fifty euro (€4,6 50) and not more than twenty-three thousand th ree hundred euro (€23,300): Provided that in the case of non-compliance with a compliance o rder, the Civil Court shall also impose a daily penalty of not less than one hu ndred and twenty euro (€120) and of not more than two hundred and thirty euro (€230) for each day of non- compliance. In accordance with the provisions of article 43C, the following public entity is being designated to perform the functions of a residual ADR ent ity: The Complaints and Conciliation Directorate established under t he Fourth Added by: XXX. 2015.6. THIRD SCHEDULE (Article 43C) 80 CAP. 378.] CONSUMER AFF AIRS Schedule of the Malta Competition and Consumer Affairs Act (Cap. 510).