A short note on the
Development of Consumer Policy and Law in Malta
1980 – 2005
DAVID FABRI, World Consumers Rights Day, 2006,
Malta conference “Promoting consumer interests” 16 March 2006
The development of a consumer policy in Malta has been a slow, gradual and definitely a recent phenomenon. It is not a simple tale with a beginning, a middle part and a happy ending. It is a more complex subject, tinged with some controversy.
This is a personal interpretation of the events and laws which mark what may be considered the relatively short history of Maltese consumer law and policy.
The general backdrop consists of our 19th century Civil Code, which did not and does not show any awareness of the consumer: it may be considered as indifferent to the figure of the consumer. The Code has not been sufficiently updated since the late 19th century when it was introduced. It no longer adequately reflects the world it seeks to regulate.
The industrial and technological revolution and advances gave rise to growth of mass market and consumerism and significant information and bargaining inequalities. More goods are available for sale and people have both more money to spend and higher expectations. The Civil Code law failed to keep up with these significant developments, and this remains the case today. It still however remains the most important source of our private law, even in the consumer field. Of particular interest and relevance are its provisions on the law of sale and the formation and effects of contracts.
Consumer protection has largely resulted from special legislation. Originally, these laws sought to regulate trade practices rather than provide rights for consumers. Initially, consumer protection efforts were inadequately co-ordinated and lacked a common conceptual basis. At that stage, the figure of the consumer was improperly identified and consumer protection was not yet considered as a subject that warranted study in its own right. Consumer protection therefore still largely resulted as a by-product of measures intended to promote trader-to-trader relationships, to protect public order or to implement often restrictive trade policies. The first moves towards more directly consumer-oriented special laws appeared in the eighties, starting with the flawed Consumers Protection Act 1991. The landmark year in this second period is 1990 which may be identified as the year when things suddenly changed for the better. That year saw the launching of two parallel processes that have led to a substantial amount of good quality consumer legislation that would have been unheard of before 1990.
It may be useful to consider two periods in the development of consumer law and policy in Malta, pre-1990 and post-1990. The following is a sketch of the main events that mark the development of Maltese consumer law and policy during the period prior to 1990.
1960/70s - some legislation inc. tourism, standards, food and drink,
1980’s - very restrictive trade policies, severe price controls, bulk-buying importation and import substitution leading to poor consumer choice, but three generally unsatisfactory, patchy but pioneering laws
1981 - Consumers Protection Act
- a missed opportunity
- poor drafting and design
- no definition of ‘consumer’
- immunity given to recognized consumer groups
- only referred to sale of goods
- proved ineffective in practice
- was repealed by the Consumer Affairs Act 1994
1986 - Trade Descriptions Act
- poor legislative effort
- copied the UK Act of 1968
- no reference to “consumer”
- inadequately enforced
1987 - Door-to-Door Salesmen Act
(later renamed Doorstep Contracts Act)
- an improved but still flawed effort
- defined ‘consumer’
- only related to goods
- introduced the first ever cooling off period
- imposed a licence requirement
Assessment: overall, so far, no coherent policy or a uniform concept of ‘consumer’ has been developed. These unconnected efforts reveal a still immature piecemeal approach, lacking two important elements:
(a) a central unifying policy and long term programme, and
(b) a central oversight and co-ordinating authority.
These came later. 1990 is a crucial year not so much in its own right but for the processes that it launched and which achieved these two objectives. The following sketches the relevant events during the period 1990 to date. A series of landmark events and legislative initiatives make the decade from 1991 to 2001 the most productive in Maltese consumer law and policy making. The 2000-1 reforms mark the point of highest convergence between Maltese national consumer law development and the island’s move towards EU accession.
1990 - Malta submits its EU membership application
- Maltese consumer law is deemed clearly below EC standard
1991 - Perhaps the beginning of a Maltese consumer policy - the White Paper “Rights for the Consumer” unveils first ever blueprint for a coherent programme of infrastructure and substantive law, which envisages a solution to deficiencies (a) and (b) above.
1992 - A new Government Department is set up to help assist the public with their individual complaints and to support future reform programme, but in anticipation of the legislative and institutional agenda announced in the White Paper.
1993 - A second White Paper, Fair Trading - the next step forward, is published. Fresh reforms in consumer and competition law and policy are tackled together under a newly conceived fair trading formula. A draft bill for a new Consumer Affairs Act is included.
1994 - The Consumer Affairs Act is adopted by Parliament. Maltese consumer law will never be the same again. This landmark law introduces various administrative and support structures including a special consumer tribunal. The Act remains to this day the most significant and comprehensive consumer law and constitutes a formative event in the fledging Maltese consumer law history.
2000 - Amendments to 1994 Act are enacted largely to adopt EU Directives, inc. unfair terms, misleading and comparative advertising, guarantees in sale of goods, product liability, but also improved the original structures of the 1994 Act itself.
2001 - Various laws are introduced to align with the mandatory EU acquis, including the Product Safety Act, Metrology Act (but left in abeyance), regulations on distance selling.
2004 - Malta’s accession to the EU is finalized on 1 May 2004.
2005 - The Consumer Credit Regulations are finally published and come into force later in the year. The EU consumer protection acquis is finally transposed in full.
David Fabri, 16 March 2006 (improved 19 April 2006)
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