Is a government-owned company a 'public authority'? (Gozo Court of Magistrates)

27 April 2010 (Ref. Citaz. Nru. 90/2009). The Court ruled that a government-owned limited liability company is in fact a ‘public authority’, and thus subject to an action for review under the Code of Organisation and Civil Procedure (COCP), article 469A.

COCP art. 469A sub-articles (1) & (2) state:

'(1) Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

(a) where the administrative act is in violation of the Constitution;

(b) when the administrative act is ultra vires ...

(2) In this article -

(----)

"public authority" means the Government of Malta, including its Ministries and departments, local authorities and any body corporate established by law.'

The defending company claimed that it is not a ‘public authority’ and hence not subject to such an action.

The Court observed amongst other things that the defending company:

i. Is subject to the Regulations on Public Procurement,

ii. Falls within the jurisdiction of the Parliamentary Ombudsman,

iii. Is a ‘government entity’ in terms of the Public Administration Act.

The Court also referred to Hotel Cerviola v. Malta Shipyards Limited, and Euro Chemie v. Malta Industrial Parks Limited. On both occasions the Courts treated the defending companies as ‘public authorities’.

Having concluded that the defendant company in the present case is a ‘public authority’ the Court went on to observe that as such it was capable of committing ‘administrative acts’ that were subject to judicial review under art. 469A COCP.

For the above reasons the Court dismissed the defendant’s plea that it was not subject to actions for judicial review under 469A COCP and ordered a continuation of proceedings.