Cap. 379 чл. 12Investigations.

(1) It shall be the duty of the Director General to ensure that the provisions of this Act are observed by all, and to gather information that may be necessary for him to carry out his functions; and for such purpose he shall have power to carry out investigations of his own motion or at the request of the Minister or upon a reasonable allegation in writing of a breach of the provisions of this Act, by a complainant or at the request of any designated national competition authority of any other Member State or the European Commission.

(2) (a) During the course of any investigation carried out by the Office in accordance with sub-article (1), the Director General may request any undertaking or association of undertakings to furnish him with any information or document which are accessible to such undertaking and, or association of undertakings, irrespective of where it is stored for the application of articles 5 and, or 9 of the Act and, or Articles 101 and, or 102 of the TFEU, which the Director General has reason to believe are necessary to the matter under investigation within such time that in the circumstances of the investigation the Director General may consider reasonable: Provided that such requests for information shall be proportionate and the Director General may also request the manner and form in which the information or document are to be produced or provided: Provided further that during the course of any investigation carried out by the Office in accordance with sub-article (1), the Director General may request any other natural or legal persons to provide any information or document that may be relevant for the application of articles 5 and, or 9 of this Act and, or Articles 101 and 102 of the TFEU within a specified and reasonable time limit.

(b) During the course of any investigation carried out by the Office in accordance with sub-article (1), the Director General may also summon any representative of an undertaking or association of undertakings, any representative of other legal persons, and any other person, where such representative or person may possess information relevant for the application of articles 5, and or 9 of the Act and, or Articles 101 and, or 102 of the TFEU, to appear for an interview at a place and time as specified by the Director General to answer questions with respect to any matter relevant to the investigation: Provided that the Director General may record the interview in any manner and form deemed appropriate by him.

(c) Nothing in this sub-article may be construed as

(d) During the course of any investigation, when a person, undertaking or association of undertakings answers to questions raised by the Office both in writing and verbally, the person, undertaking or association of undertakings concerned shall not be obliged to provide any answer which might involve an admission on its part of the existence of an infringement of articles 5, and, or 9 of the Act and, or Articles 101 and, or 102 of the TFEU, but it is in any event obliged to answer factual questions and to provide documents.

(3) When sending a request for information to an undertaking or association of undertakings, the Director General shall state the legal basis and the purpose of the request, specify what information is required and fix a time limit within which the information is to be provided.

(4) Where undertakings and associa-tions of undertakings submit information which contains business secrets or other confidential information, article 29 of the Malta Competition and

Consumer Affairs Authority Act shall apply.

(5) Any undertaking that shows that its operations are directly affected by the investigation being carried out by the Director General, any association of undertakings, any person or any registered consumers’ association claiming that it or its members are being adversely affected by, any breach of the provisions of this Act constituting the subject-matter of those investigations, may request in writing to make submissions before the Director General at any stage thereof and the Director General shall accede to the request if he considers it justified and determine the manner in which such submissions shall be made.

(6) In the course of any investigation, whether during an interview or inspection, the Director General may take statements from any person, as well as make copies of any document produced to him, and the record of such statements and such copies duly attested by the Director General shall be producible as evidence before the Court and before any other court of law.

(7) (a) The Director General and, or his officers authorised by him and, or any other person authorised or appointed by the Director General duly authorised by a warrant issued by a Magistrate may, for the purpose of any investigation under this article conduct all necessary unannounced inspections and enter into and search premises, land or means of transport of undertakings and, or association of undertakings for the application of articles 5 and, or 9 of the Act and, or Articles 101 and, or 102 of the TFEU.

(b) The Director General and, or his officers authorised by him and, or any other person authorised or appointed by the Director General, duly authorised by a warrant issued by a Magistrate, may, for the purpose of any investigation under this article, conduct all necessary unannounced inspections and enter General has a reasonable suspicion that documents related to the undertaking and, or association of undertakings and to the subject matter of the inspection, which may be relevant to prove an infringement of articles 5 and, or 9 of this Act and, or Articles 101 and, or 102 of the TFEU are being kept in those premises, land or means of transport:

Provided that the Magistrate in deciding whether to issue a warrant under sub-articles (7)(a) and (b) shall ensure that the coercive measures envisaged are neither arbitrary nor excessive.

(c) In the course of any search pursuant to paragraphs (a) and (b) of this sub-article, the Director General and, or any authorised officer and, or any other person authorised or appointed by the Director General shall be empowered to:

(i) inspect and examine any object or document, including books and other records related to the business, irrespective of the medium on which they are stored and access any information or document which are accessible to the entity subject to the inspection: Provided that this includes the power to search for documents, files or data on devices which are not precisely identified in advance: Provided further that the power to examine books or records covers all forms of correspondence, including electronic messages irrespective of whether they appear to be unread or have been deleted;

(ii) seize and confiscate any object or document, or take or obtain in any form, copies of or extracts from such books or records or any other document and where they consider it appropriate, to continue making such searches for information and the selection of copies or extracts at the premises of the office or at any other designated premises;

(iii) require any information which is stored in a computer or any other object or device including external servers and cloud services which are accessible from the premises, land or means of transport, and which the Director General and, or his officers consider relevant to the investigation, to be delivered in a form in which it can be taken away and in which it is visible and legible;

(iv) order the non-removal of objects or documents from any such premises, land or means of transport;

(v) close and seal any or all parts of such premises, land or means of transport, or put any books or records or any other object or document under seal for the period and to the extent necessary for the inspection; state to the best of their knowledge and belief where the documents may be found and record the answers;

(vii) take any steps which appear to be necessary to preserve any object or document or to prevent any interference with such object or document.

(d) Notwithstanding any provisions contained in the Criminal Code, the Director General shall have the right to appeal against a decision of the Court of Magistrates to refuse to issue a warrant under this sub-article, before the Court of Criminal Appeal within five days from the date of such a decision and the Court of Criminal Appeal shall endeavour to decide in the shortest time possible.

(8) (a) The warrant mentioned in sub-articles (7)(a) and (b) shall specify the subject-matter, purpose of the inspection, the date on which the inspection shall begin and the relevant penalties provided for in article 21.

(b) The powers conferred by article 12(7) are to be exercised by the Director General and, or his officers and, or any person authorised or appointed by the Director General on production of a warrant issued under the said article.

(c) The Director General and, or any of his officers and, or any person authorised or appointed by the Director General entering premises, land or means of transport by virtue of a warrant issued under sub-articles (7)(a) and (b) may take with them such equipment as appears to them to be necessary.

(9) (a) In the course of any search as is referred to in sub-article (7), the Director General and, or any of his officers and, or any person authorised or appointed by the Director General may request the assistance of the Police and in such case the Police shall require a warrant issued by the Magistrate to assist the Director General in the search.

(b) Where police assistance is sought by the European Commission in terms of Article 20(6) of Council Regulation (EC) No 1/2003, a warrant from a Magistrate shall be required.

(10) In issuing a warrant enabling the European Commission to carry out an inspection in terms of Article 21 of Council Regulation

(EC) No 1/2003 the Magistrate shall follow the provisions of paragraph (3) thereof.

(11) In the course of an inspection under this article, the undertakings or association of undertakings or persons subject to the inspection may be assisted by legal counsel of their choice:

Provided that officers may wait a reasonable time for the legal counsel to arrive before starting the inspection and during this time, officers may take any reasonable measures to prevent any potential tampering with evidence or to prevent any potential communication by which other undertakings will be informed that person on the premises or in control of any object that has been seized. Anything which has been lawfully seized by the Director General and any order given by the Director General in accordance with sub-article (7) may be retained or shall remain in force as long as it is considered necessary by the Director General.

(13) No search may be commenced on any premises, land or means of transport after seven o'clock in the evening and before seven o'clock on the next following morning, unless there is reason to believe that delay could cause the loss of information and the search is expressly authorised by the Magistrate, to take place between the said times.

(14) Nothing in this article shall be deemed to detract from the powers of the Police under the Criminal Code or under any other law.