Cap. 378 Art. 12ACommitments procedure.

(1) At any stage of an investigation initiated according to article 12, or any stage of judicial proceedings instituted according to article 12(5), the Director General may seek to obtain or to accept commitments from the person concerned to cease the alleged infringement, including also, on the initiative of the person concerned, additional remedial commitments for the benefit of consumers that have been affected by the alleged infringement: Provided that in such instances the Director General together with the person concerned shall have the right to demand that the investigation or the judicial proceedings, as the case may be, are terminated by means of the commitments procedure which includes the imposition of a penalty by the Civil Court on the person concerned, as provided for in the following provisions of this article.

(2) The termination of the investigation or of the judicial proceedings, as the case may be, by means of the commitments procedure shall be granted by virtue of a judgement delivered by the Civil Court upon the demand made jointly by the Director General and the person concerned, where the Director General and the person concerned agree that the investigation or the judicial proceedings, as the case may be, are terminated by means of the commitments procedure, which includes the imposition of a penalty by the Civil Court according to article 106A: Provided that in those instances where the investigation concerns more than one person, not all persons concerned who are under investigation or who are subject to judicial proceedings instituted according to article 12(5) must agree to submit to the commitments procedure. In such instances the investigation or the judicial proceedings shall continue with regard to that person or persons concerned who do not agree to submit to the commitments procedure.

(3) The joint demand mentioned in sub-article (2) shall be made by means of a joint application filed in the Civil Court: Provided that the Civil Court must be satisfied that all the requirements of sub-article (7) are reflected in the joint application: Provided further that after the Civil Court considers that the requirements of sub-article (7) have all been satisfied, the Civil Court shall appoint a sitting to confirm that the person concerned is not contesting the contents of the commitments submissions and that all the parties concerned express their unconditional willingness to terminate the investigation or the judicial proceedings by means of the commitments procedure, after which sitting, the Civil Court shall pronounce judgement on the basis of the joint application: Provided further that the joint application shall, solely for information purposes, also be notified to any qualified entity that had alleged the infringement according to article 12(1).

(4) In the course of an investigation the Director General may prior to instituting judicial proceedings according to article 12(5), if he deems it appropriate for the expeditious and efficient conclusion of the investigation, invite the person concerned to indicate in writing, within the time limit set by the Director General, whether the person concerned is prepared to engage in commitments discussions with a view to possibly introducing commitments submissions:

Provided that the Director General shall not be obliged to take into account the replies received after the expiry of that time limit:

Provided further that at any time during the course of an investigation the person concerned may also request to engage in commitments discussions with the Director General: Provided further that the decision regarding the initiation of the commitments discussions falls within the exclusive competence of the Director General.

(5) Should the Director General ascertain that sufficient progress in the commitments discussions has taken place, the Director General shall invite the person concerned to introduce commitments submissions before the Director General within a time limit as set by the Director General with a view to conclude the commitments procedure:

Provided that before the Director General sets a time limit to introduce commitments submissions, the person concerned may be informed of the main elements of the suspected infringement, consisting of:

(a) the evidence found;

(b) the legal assessment of the facts; and

(c) the specific amount of the penalty to be requested by the Director General:

Provided further that before the Director General sets a time limit for the person concerned to introduce commitments submissions, the person concerned may have limited access to the file of the investigation concerning the case which is granted only to the extent that the Director General deems reasonable in view of the objectives of the commitments procedure. If access to the file is granted, the Director General shall provide partial access to the case file by providing non-confidential versions of any specified accessible document listed in the case file at that point in time: Provided further that if the person concerned fails to submit the commitments submissions within the time limit set by the Director General, it shall be considered that the person concerned has withdrawn from the commitments procedure.

(6) The documents and the information exchanged between the Director General and the person concerned during the commitments procedure are confidential: Provided that the information given according to sub-article (5) shall be confidential third parties, save where vis-à-vis the Director General has given a prior explicit authorisation for disclosure:

Provided further that the exchanged documents will only be accessible to other persons concerned who are under investigation or who have been served with a sworn application according to article 12C, if the lack of access to these documents would hinder the rights of defence of these other persons concerned.

(7) The commitments submissions which are to be included in the joint application shall contain a voluntary statement by the person concerned containing the following information:

(a) a statement by the person concerned, clearly and unequivocally admitting his infringement of those provisions of the Act and of the regulations made thereunder mentioned in the investigation or in the judicial proceedings;

(b) a factual and brief description of the conduct of the person concerned, the objective of the conduct and the way in which it was carried out, its duration and the extent in which the person concerned was involved;

(c) a statement of the person concerned declaring that he accepts the amount of the penalty that is being requested by the Director General in the joint application, as reduced according to sub-article (9);

(d) a statement of the person concerned to the effect that he was sufficiently informed by the Director General regarding the main elements of the suspected infringement contained in sub-article (5) and a declaration of the person concerned that he was given sufficient opportunity to be heard and to make his views known to the Director General;

(e) a statement of the person concerned that he will waive his right to obtain further or full access to the file of the investigation concerning his case;

(f) a statement of the person concerned containing his waiver of his right to appeal and, or to challenge in any way the commitments procedure and, or the judgement of the Civil Court including the penalty; as well as his waiver of any action or claim arising from the same commitments procedure and, or related to the judgment of the Civil Court and, or to the penalty; and

(g) a statement of the person concerned that he agrees with the contents of the commitments submissions and that he agrees that a joint application is filed in Civil Court with the Director General to terminate the investigation or the judicial proceedings, as the case may be, by means of commitments, and to request the Civil Court to deliver a judgement according to the commitments submissions:

Provided that together with the commitments submissions the joint application shall also include a statement by the Director General:

(a) agreeing with the commitments submissions of the person concerned;

(b) specifying the amount of the penalty he is requesting to be imposed on the person concerned as reduced according to sub-article (9); and

(c) requesting the Civil Court to deliver a judgement to terminate the investigation or the judicial proceedings, as the case may be, by means of commitments based on the commitments submissions of the person concerned contained in the joint application and to impose the amount of the penalty as requested by the Director General:

Provided further that the commitments submissions may also include additional remedial commitments for the benefit of consumers that have been affected by the alleged infringement and adequate remedies to the consumers that have been affected by that infringement intended to contribute to removal of the adverse impact on affected consumers. Those remedies may include, inter repair, replacement, price reductions, the termination of alia, contract or the reimbursement of the price paid for the goods or services, as appropriate, to mitigate the negative consequences of the infringement on the affected consumer:

Provided further that this shall be without prejudice to a consumer’s right to seek redress through the appropriate means where the consumer would not have benefited from the remedies that the person concerned may have provided.

(8) Commitments discussions may also be proposed jointly by the parties at a later stage, when a sworn application according to article 12(5) would have already been filed by the Director General before the Civil Court: Provided that the Civil Court may adjourn two sittings so that within such time the parties would be able to consider the commitments procedure and file a joint application as referred to in sub-article (3):

Provided further that if the Director General and, or the person concerned fail to file a joint application within the adjourned two sittings allocated by the Civil Court, proceedings against the person concerned shall continue according to the stage where the proceedings before the Civil Court had arrived.

(9) If the person concerned agrees to terminate the investigation or the judicial proceedings by means of commitments, by filing together with the Director General the joint application, the Director General shall reward the person concerned for the commitments, by reducing between ten to thirty-five percent (10% - 35%) of the amount of the penalty requested to be imposed by the Civil Court on the person concerned: Provided that the penalty, for each infringement, shall not be less than four thousand six hundred and fifty euro (€4,650).

(10) The Director General may decide at his own discretion at any time during the commitments discussions to discontinue the commitments procedure altogether in a specific case or with respect to one or more of the parties involved, if, for instance:

(a) procedural efficiencies are not likely to be achieved; or

(b) the commitment submissions do not contain all the requirements mentioned in sub-article (7); or

(c) the person concerned does not have a sincere intention of submitting to commitments or does not cooperate or has breached the confidentiality obligation by revealing to any third party the content of the commitments meetings held with the Director General or the contents of the documents to which access has been granted:

Provided that in case where the Director General discontinues the commitments discussions for any reason as provided for in this sub-article or in the case where the person concerned or the Director General, as the case may be, withdraw or discontinue the commitments procedure as provided for in sub-articles (5) and (8), the case shall proceed according to the stage where the investigation or proceedings have arrived.

(11) If the commitments procedure is discontinued either by the Director General or by the person concerned during the investigation or during the judicial proceedings, any information and any document provided by the person concerned during the commitments procedure cannot be used as evidence to establish an infringement of those provisions of the Act and of the regulations made thereunder mentioned in the investigation or in the judicial proceedings against the person concerned or other parties to the investigation before any court of law: Provided that the foregoing provision of this sub-article is without prejudice to any consumers’ judicial action, with regard to consumer claims or actions for damages, including redress measures according to the Representative Actions (Consumers) Act:

Provided further that documents and, or information which were already in the possession of the Director General prior to being presented by the person concerned and any information which can be requested by the Director General according to the Act, can be used as evidence by the Director General and before any court of law to establish an infringement of the Act and the regulations made thereunder, against the person concerned or against any other persons concerned or against any other party to the investigation.