Proposed Revision to Malta’s Merger Control Framework – Key Highlights

On 15^th January 2026, the Office for Competition within the Malta Competition and Consumer Affairs Authority (“Malta NCA”) published a request for consultation on its proposed changes (“Consultation”) to the Control of Concentrations Regulations (“Regulations”). The changes aim at modernising and streamlining Malta’s merger regime. Notable differences include a modernisation of the turnover thresholds applicable to the jurisdictional test under the Regulations and the introduction of a “call-in” power where concentrations do not meet the turnover thresholds.

Background to the current Legislative Framework

The Regulations, which came into effect in 2002, are largely modelled on the EU Merger Regulation 139/2004 (“EUMR”). Similarly to the EUMR, the Regulations established in Malta a mandatory pre-implementation notification regime of concentrations which satisfy the turnover based jurisdictional test and which as a result fall within its scope. This turnover test was tailormade to Malta’s economic environment at the time of promulgation of the Regulations.

The Regulations require the Malta NCA to have recourse to judgements of the Court of Justice of the European Union, relevant decisions of the European Commission, interpretive notices and guidelines as issued by the European Commission and other pertinent foreign jurisprudence. In fact, the Malta NCA, in practice, refers and applies the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings.

In light of this, the substantive assessment of concentrations under the Regulations by and large follows the assessment carried out under the EUMR. The Malta NCA applies a substantial lessening of competition test and in its assessment refers to the Commission’s guidelines on horizontal  and non-horizontal mergers.

By and large, a good number of the concentrations which were notified to the Malta NCA in recent years have been unconditionally cleared, bar the prohibition of a proposed acquisition of real estate by an international discount retailer chain in late 2024, which is currently being challenged before the Malta courts.

Nevertheless, along the years, various aspects of the Regulations were proving to be impractical:

·         The Malta NCA took the position that the creation of a full-function joint venture is always notifiable in terms of the Regulations even if the turnover test is not met. This position is grounded in its argument that the Regulations were written in such a way that the turnover test does not apply to joint ventures.

·         The Regulations provided for a 15 working day deadline within which concentrations had to be notified to the Malta NCA from the conclusion of the agreement, the announcement of the public bid or the acquisition of a controlling interest. This was a legacy provision inherited from the predecessor to the EUMR (See Council Regulation 4064/89, Article 4(1)). In practice, the Malta NCA routinely granted extensions or deferrals of this deadline subject that the concentration is not implemented prior to clearance.

·         To date, the Regulations require the use of the same concentration notification form for both concentrations qualifying for the simplified procedure and those requiring a full Phase I notification. Although the Regulations do specify which sections of the CN Form need not be completed for a simplified notification, this was not clear in practice.  As a result, notifying parties often engaged in discussions with the Malta NCA to agree on specific dispensations to avoid an incomplete notification.

Revisiting the turnover thresholds

Current scenario

Under the Regulations, a concentration (including a merger, acquisition of sole or joint control, or a takeover) that meets the jurisdictional test must be notified to and cleared by the Malta NCA before implementation.

The jurisdictional test under the Regulations is twofold:

·         the combined aggregate turnover in Malta of the undertakings concerned for the previous financial year must exceed €2,329,373.40; and

·         each of the undertakings concerned must have a turnover in Malta equivalent to at least 10% of the combined aggregate turnover.

These notification thresholds, which were previously increased in 2007, caught non-problematic concentrations with little to no impact in Malta. Most of these concentrations qualified under the simplified procedure but nevertheless consumed the Malta NCA’s time and resources.

Proposed update to the turnover thresholds

The Consultation proposes an upward revision of these turnover thresholds as follows:

·         the aggregate combined turnover in Malta of the undertakings concerned must exceed €4,500,000; and

·         each of the undertakings concerned must have a turnover in Malta equivalent to at least €800,000.

While the Malta NCA has not, in its Consultation, backed-up the proposed thresholds with any economic data or studies, this revision is, in principle, welcome. The amended Regulations, if enacted, should capture concentrations more likely to have a competitive effect impact in Malta and eliminate administrative burdens on big transactions with a de minimis link in Malta and on smaller M&A deals.

The introduction of “call-in” powers

Ever since the so-called “killer acquisitions” have been pushed into the spotlight, following the Illumina/Grail saga, at least 8 EU Member States have introduced “call-in” powers, allowing competition authorities to “call-in” non-notifiable concentrations for assessment where such concentrations may present competition concerns.

The Consultation proposes that Malta introduces its own “call-in” power to below threshold concentrations. Transactions which are called in must immediately follow the standstill obligation.

The wording of the current proposal is open ended: any concentration which “may have an effect on competition in any markets for goods or services in Malta or limited to any particular area or locality within Malta” can be called-in. The Consultation does not say what criteria or factors will be applied by the Malta NCA when exercising this power. The law should set out the parameters for the Malta NCA’s discretion to call-in concentration, or at the very least, written guidelines are issued by the Malta NCA in tandem with the amended Regulations.  Admittedly, in the Consultation, the Malta NCA identifies “killer acquisitions” and “acquisitions where an incumbent firm may acquire an innovative target and terminate development of the target’s innovations to pre-empt future competition to eliminate potentially promising innovative competing undertakings” as candidate concentrations for the call-in. 

There is also no mention whether the Malta NCA will allow voluntary notifications or if it will opt for an informal briefing paper model, like the CMA in the UK. Either model could afford parties to a concentration a degree of legal certainty before closing.

The Consultation limits the use of this “call-in” power to deals which have not yet been implemented. Under the proposed rules, the Malta NCA will not be able to scrutinise below threshold concentrations which have closed. This remains without prejudice to the Malta NCA’s power to investigate a below threshold concentration in so far as it may constitute unlawful coordinated conduct or abuse of dominance. To our knowledge and to date, the Malta NCA has not investigated a concentration on this basis.

Joint Ventures – some much needed clarity

The Regulations capture within their scope the creation of full-function joint ventures. The definition of a joint venture under the Regulations is tied to the turnover thresholds meaning that joint ventures which satisfy the cumulative turnover limbs as set out in the Regulations are subject to mandatory notification. 

Yet, over the past years, the Regulations have been interpreted by the Malta NCA such that the creation of a full-function joint venture is always notifiable even if the turnover test is not satisfied. This interpretation effectively means that all joint ventures happening anywhere in the world, even if the parties have no turnover in Malta (and therefore no connection with Malta), need to be notified to the Malta NCA.

The Consultation proposes that this issue is clarified in that only full-function joint ventures which satisfy the turnover thresholds are caught by the Regulations. This proposal is indeed very welcome. The current interpretation is impractical and unnecessarily captures joint ventures which have no nexus to Malta and hence no possible negative competitive impact in Malta.

Revision of filing fees

The current €163.06 filing fee is undisputably low compared to other EU Member States. The Consultation proposes adjusting the filing fees as follows:

• €1,000 for simplified filings;
• €6,000 for Phase I notifications; and
• €20,000 or 0.02% of the aggregated turnover of the parties (whichever is the higher), capped at €35,000 for Phase II notifications.

While the increases may come across as substantial, they are, in principle, justified. Merger control is resource-intensive and time-sensitive for both the Malta NCA and parties involved. These fees will support the ongoing strengthening of the Malta NCA’s capabilities, including additional resources and enhanced digital tools.

Third Party Objections

The Consultation proposes that the Malta NCA may set aside summarily any third-party objections to a proposed concentration which are submitted late after the 5 working day deadline from the announcement of the notification. In terms of the Regulations, the Malta NCA, upon filing of a complete CN Form, publishes a summary on the proposed concentration on Malta’s Government Gazette, a daily newspaper, and on its website.

The proposal addresses an issue which cropped up in the past. The current Regulations do not expressly provide for any specific sanction if a third party objects to a proposed concentration after the deadline. A summary rejection of late objection may save the Malta NCA time in considering the objection and reduce costs for the parties in addressing objections. Nonetheless, the Malta NCA’s discretion should be applied on a case-by-case basis depending on the deal and the sector involved.

Streamlining and Alignment with EU practices

The Consultation also proposes several amendments to bring the Regulations in line with the EUMR, but also to streamline the merger control process. These include the following:

·         First, the aforementioned 15 working day notification deadline has been removed. The previous deadline in Regulation 4064/89 was removed in the EUMR. This will remove the need to formally request an extension or deferral of the deadline.

·         Second, new dedicated concentration notification forms will be introduced for simplified and for standard notifications. The Malta NCA has also reserved the right to amend these forms from time to time without the need of amending the Regulations.

·         Third, a significant increase in penalties for failure to notify and for providing the Malta NCA with misleading information.

·         Fourth, a change from joint control to sole control will formally qualify for the simplified procedure.

Conclusion

The proposed amendments to the Regulations mark a significant and timely step toward modernising Malta’s merger control framework. By recalibrating the turnover thresholds and clarifying the jurisdictional treatment of full‑function joint ventures, the Consultation aims to ensure that regulatory oversight remains focused on transactions with a genuine local nexus and potential competitive impact. The proposal to introduce of a “call-in” power is interesting, but careful consideration should be given to its implementation in practice and legal certainty should be guaranteed.