S.L. 379.8 ст. 4Appraisal of concentrations.

(1) Subject to subregulation (4), concentrations that might lead to a substantial lessening of competition in the Maltese market or a part thereof are prohibited.

(2) It shall be the duty of the Director General to determine whether a concentration is compatible with subregulation (1) and in making this appraisal the Director General shall take into account, inter alia:

(a) the need to maintain and develop effective competition in the Maltese market in view of, among other things, the structure of all the markets concerned and the actual or potential competition from undertakings located either within or outside Malta;

(b) whether the business, or part of the business, of a party to the concentration has failed or is likely to fail;

(c) the nature and extent of development and innovation in a relevant market;

(d) the market position of the undertakings concerned and their economic and financial power, the alternatives available to suppliers and users, their access to supplies or markets, any legal or other barriers to entry, supply and demand trends for the relevant goods and services, the interests of the intermediate and ultimate consumers, and the development of technical and economic progress provided that it is to consumers’ advantage and does not form an obstacle to competition.

(3) To the extent that the creation of a joint venture constituting a concentration has as its object or effect the coordination of the competitive behaviour of undertakings that remain independent, such coordination shall be appraised in accordance with the criteria of article 5 of the Act with a view to establishing the lawfulness of the operation under these regulations: Provided that in making this appraisal, the Director General shall take into account in particular:

(i) whether two or more parent companies retain to a significant extent activities in the same market as the joint venture or in a market which is downstream or upstream from that of the joint venture or in a neighbouring market closely related to this market;

(ii) whether the coordination which is the direct consequence of the creation of the joint venture affords the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products or services in question.

(4) Concentrations that bring about or are likely to bring about gains in efficiency that will be greater than and will offset the effects of any prevention or lessening of competition resulting from or likely to result from the concentration shall not be prohibited if the undertakings concerned prove that such efficiency gains cannot otherwise be attained, are verifiable and likely to be passed on to consumers in the form of lower prices, or greater innovation, choice or quality of products or services.