Malta NCA Publishes Guidelines on Methodology for Determining Competition Law Infringements
On 6 February 2026, the Office for Competition within the Malta Competition and Consumer Affairs Authority (Malta NCA) published Guidelines on the Methodology for Determining the Penalty Amount (Guidelines)
The Guidelines set out the principles and methodology which will be applied by the Malta NCA when proposing financial penalties for infringements of competition law.
Under Maltese law, competition law infringements, whether coordinated conduct / cartels or abuse of dominance, may carry a penalty of up to 10% of that undertaking’s worldwide turnover.
The Malta NCA cannot impose such penalties directly. In Malta’s public enforcement model only the Civil Court (Commercial Section) (Court) may do so after a lawsuit is filed by the Malta NCA seeking a finding of a competition law infringement and the imposition of a penalty.
The Guidelines are meant to provide “transparency, consistency and predictability” on the manner in which the Malta NCA will calculate the amount of penalty to be proposed to the Court.
The Guidelines are modelled on the European Commission’s guidelines on the method of setting fines and largely follow the practice adopted by the Malta NCA in provisional findings reports issued in its investigations in the past couple of years.
The Guidelines set out a 6-step approach.
Step 1 – Basic amount. Take the value of the undertaking’s relevant sales (normally the last full financial year of participation in the infringement, before VAT/rebates) and multiply by a gravity percentage of 0–30%. For the most serious infringement of competition, the Malta NCA will apply a starting point at the higher end of this range.
The Malta NCA specifically classifies (i) cartel agreements including horizontal price-fixing agreements, market-sharing and information exchange, (ii) agreements on division of market or output-limitation agreements; (iii) abuse of dominant position of undertakings with significant impact on broader group of consumers; and (iv) the implementation of mergers prior to the approval, as the most serious competition law infringements.
Step 2 – Duration adjustment. Multiply the Step 1 figure by the number of years of participation in the infringement. Periods under six months count as half a year, periods over six months but under a year count as a full year. The Malta NCA may depart from this for short but impactful infringements.
Step 3 – Aggravating and mitigating factors. The amount may be increased for aggravating circumstances (e.g., leading role, recidivism, obstruction, intentional conduct, disclosure to third parties) or decreased for mitigating ones (e.g., limited role, voluntary termination, cooperation, duress, conduct encouraged by public authorities).
Step 4 – Specific deterrence. The penalty may be increased to ensure it is sufficient to deter the undertaking from future anti-competitive conduct, particularly where the undertaking has large turnover from other activities or where the value of relevant sales doesn’t reflect the harm caused.
Step 5 – Proportionality and legal cap. The Malta NCA checks the penalty is proportionate to the undertaking’s size and financial position, and ensures it does not exceed the 10% total worldwide turnover cap.
Step 6 – Leniency and settlement reductions. Reductions are applied for leniency agreements and/or settlement, with settlement discounts ranging from 10–35%.
In exceptional circumstances, the Guidelines allow the Malta NCA to take into account an undertaking’s long‑term inability to pay, but only where objective evidence shows that a penalty imposed in line with the Guidelines would irretrievably jeopardise the undertaking’s economic viability. Adverse or loss‑making financial results alone are insufficient. The Guidelines also provide that, in exceptional cases, the Malta NCA may propose the imposition of a symbolic penalty, with the reasons for doing so required to be expressly justified in its findings.
These Guidelines do not bind the Court, and to a certain extent, do not bind the Malta NCA either. The Malta NCA clarifies that the Guidelines “are not a binding indication of how discretion will be exercised in any specific case”, but the expectation is that these Guidelines will be followed in practice.
The Guidelines may be amended or revoked at any time.
