Issue link: https://maltatoday.uberflip.com/i/519957
52 maltatoday, SUNDAY, 31 MAY 2015 Opinion T he Competition and Consumer Appeal Tribunal presided by Mr Justice Mark Chetcuti held in a judgement on 19 May, 2015 that subsidiaries given by public authorities such as the Malta Tourism Authority is not an economic activity and therefore, any difference in treatment of allocations of subsidiaries cannot breach the competition rules. This was held in Malta Bargains Limited (UK) v Awtorita tat-Turismu ta' Malta u Direttur Generali, Ufficju tal- Kompetizzjoni. Malta Bargains Limited (UK) filed a complaint against the Malta Tourism Authority (MTA) on 31 July, 2012 because it claimed that the latter breached articles 5 and 9 of the Competition Act after discriminating against them, since a number of tour operators in competition with the company were given a subsidiary of £10 for every passenger brought to Malta without any limitation, while this company was given the same subsidiary for a maximum of 5,000 passengers. The Office of Competition ruled that the MTA is not an enterprise as defined by the Competition Act and offers no service to the market, nor preformed an economic activity. Therefore, the rules outlined in Articles 5 and 9 of the Competition Act did not apply to the Authority. The company appealed this ruling and asked the court to order the Office to investigate the complaint. Mr Justice Chetcuti quoted from authors who held that "the concept of an undertaking encompasses every entity in an economic activity, regardless of the legal status of the entity or the way in which it is financed. It is irrelevant that the body is not profit making or that it is not set up for an economic purpose. The basic test is therefore, whether the entity in question is engaged in an activity that is an economic one involving the offering of goods and services on the market…" It is in these terms that the Office of Competition held that the MTA is a public entity which has its functions listed in Malta Travel and Tourism Services Act (Chapter 409 of the Laws of Malta). The MTA does not offer products and services to the market, but carries out its powers according to a law. The Appeals Tribunal quoted from the same authors Jones and Surfin that "…where the entity acts in the exercise of official authority (the latter activities being outside the scope of the competition rules). An entity public or private which performs tasks of a public nature, connected with the exercise of public powers or in the exercise of official authority will not be an undertaking and so will be immune from the application of the rules." The appellant company drew parallels in another case Bargain Holdings Limited -v- MTA (Complaint number 1/2004), which held that the members of the MTA are derived from the industry and therefore they were in a position to inf luence the market to their own advantage either individually or as a group. The legislative structure may serve as a cartel where companies that are supposed to be competing in a fair market would be found cooperating together against competitors. In this case the Commission ordered an investigation. The Office of Competition disagreed with this comparison, since the case had dealt with the composition of the MTA and not whether the same authority acts as an undertaking. The Appeals Tribunal quoted from a European Court judgement Diego Cali v SEPG (1997), which held that an entity which was set up to take care of the environment of the port of Genoa was not an economic activity, since it was acting in the public interest. In another case Corinne Bodson -v- Pompes Funebres des Regiones Liberees Sa (1988) the Court held that the competition rules do not apply, when the entity is preforming public duties. Mr Justice Chetcuti turned down the appeal of Malta Bargains Limited UK, since it decided that the awarding of subsidiaries was not contrary to the Competition Act. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application entitled "Extension to build apartments and garages" in Triq il-Karmnu, San Giljan was turned down by the Environment and Planning Commission after it held that "the proposed development is incompatible with the urban design and environmental characteristics of the Urban Conservation Area." The Environment and Planning Tribunal, however, ordered MEPA to allow the development. The proposed drawings of the application show a committed plot depth of 45 metres. Moreover, the Commission highlighted the fact that the height of the proposed building exceeds the maximum height limitation for St Julians (as indicated on Map SJ4 of the North Harbour Local Plan). In addition, it found that "the proposed demolition within a category B street categorization runs counter to Local Plan Policy NHSE 09" is unacceptable, adding that any development extending beyond 30 metres (measured from the building alignment) is objectionable in terms of MEPA circular 3/14. The Commission observed that the proposal would not maintain the visual integrity of the area and so does not comply with Structure Plan policy BEN 2. Reference was also made to Structure Plan policy UCO7 which only permits the demolition of buildings in Urban Conservation Areas where the replacement building will be in harmony with its surroundings. In this case, the Commission opined that "the design of the proposed building is such that it is not considered to be an acceptable replacement." On his part, applicant appealed the decision before the Environment and Planning Tribunal, stating that "the proposed elevations match the height of the neighbouring properties and thus maintain the visual integrity of the area and provide a more continuous streetscape." Applicant made reference to Policy BEN 2 which provides that "development will normally not be permitted if, in the opinion of the Authority, it is incompatible with the urban design, architectural and environmental characteristics of existing or planned adjacent uses and is unlikely to maintain the visual integrity of the area in which it is located." In this case, appellant strongly maintained that the proposed development is an "extension" of the neighbouring building and aims directly at providing a more continuous streetscape and visual integrity within the street by keeping the same height limitation, materials and solid to void ratios as that in neighbouring buildings. As a final point, appellant underlined that "the materials, silhouette and fenestration are directly related to the existing neighbouring buildings and thus ensure a harmonious streetscape." In its assessment, the Tribunal observed that the proposed elevations would contribute towards a "better streetscape". On an equally significant note, the Tribunal noted that MEPA circular 3/14 does not impose an automatic 30 metre restriction with regard to committed plot depths. The Tribunal said that each and every application must be assessed on a case by case basis, having regard to the specific merits and the surrounding commitment. With regard to the proposed height, the Tribunal made reference to the Local Plan and concluded that the proposed additional topmost f loor is objectionable since it exceeds the allowable height limitation (namely, 12.9 metres). Against this background, the Tribunal ordered the MEPA to issue the permit on condition that the plans do away with the topmost f loor and the building depth is restricted to 40 metres in keeping with the surrounding commitment. Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law robert@rmperiti.com Robert Musumeci MEPAwatch MEPA circular 3/14 does not impose an automatic 30 metre restriction Subsidiaries awarded by authorities are not economic activities in terms of competition rules