Competition Law, Antitrust & Trade Updates

Whether a Finding of an Infringement is a Prerequisite to Private Actions under section 64 of the Competition Act 2010

In a recent case commenced by a society representing taxis, rental cars, limousine and airport taxis against an e-hailing service business operator, one issue was the interpretation of section 64 of the Competition Act 2010 (CA 2010). Section 64(1) states:

“64. (1) Any person who suffers loss or damage directly as a
result of an infringement of any prohibition under Part II shall
have a right of action for relief in civil proceedings in a court
under this section against any enterprise which is or which has
at the material time been a party to such infringement.” (emphasis added)

The High Court, after hearing from submissions from the parties, decided that to bring a private action under section 64(1), there must have been a prior finding by the Malaysia Competition Commission (MyCC) of an infringement by the alleged enterprise of the CA 2010, an argument apparently contended by the defendant. Given that there had not been any decision by the MyCC on the alleged infringement of the CA 2010, the High Court held that the plaintiff had no right to commence a private action under section 64.

While the decision goes to favor the defendant, it is debatable if the decision was in line with section 64(1). ETCoLaw’s assessment is, subject to more detailed grounds of the decision, the High Court might have been misled. The High Court judgment does not show the submissions of both parties on that issue.

Competition Law & Antitrust is one of ETCoLaw’s areas of expertise. Our Dr. Vince is a leading expert on Competition Law in Malaysia and has published numerous Competition Law articles in international journals. To know more about ETCoLaw’s Competition Law & Antitrust Law Practice, please visit Competition Law & Antitrust.

30 January 2023

Findings of Competition Law Infringements against 5 Poultry Feed Companies

The Malaysia Competition Commission (MyCC) issued its proposed decision against 5 poultry feed companies for their alleged anti-competitive practices in violation of the Competition Law. The 5 companies are Dindings Poultry Development Centre Sdn. Bhd., FFM Berhad, Gold Coin Feedmills (Malaysia) Sdn. Bhd., Leong Hup Feedmill Malaysia Sdn. Bhd., and PK Agro-Industrial Products (M) Sdn. Bhd.

The MyCC has not announced the quantum of penalties to be imposed on the 5 companies yet. The 5 companies have 30 days to respond to the MyCC’s proposed decision.

5 August 2022

GRAB Doubles Its Fares

It has been reported in the local dailies GRAB apparently doubled its rates during regular hours. An Oppositions politician has called for an investigation by the Malaysia Competition Commission.

Sources:

Malaysiakini (https://www.malaysiakini.com/news/621509)

The Oriental Daily (https://www.orientaldaily.com.my/news/nation/2022/05/18/487173)

For more info about ETCoLaw’s Competition Law and Antitrust Practice: https://etcolaw.com/competition-antitrust-trade/

18 May 2022

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Malaysia Competition Commission (MyCC) Launches Public Consultation on Proposed Amendments to the Competition Act 2010 (CA 2010)

The MyCC has unveiled its public consultation on the proposed amendments to the CA 2010. It has made available to the public 2 documents, namely, “CONSULTATION PAPER ON THE PROPOSED AMENDMENTS TO THE COMPETITION ACT 2010” and “SALIENT POINTS OF THE PROPOSED AMENDMENTS TO THE COMPETITION ACT 2010”.

The general public are encouraged to voice their concerns or comments either via the MyCC website or the Malaysia Productivity Corporation’s Unified Public Consultation portal.

If you have any Competition Law issues or need any Competition Law advice, or wish to raise your comments regarding the proposed amendments via ETCoLaw, please do not hesitate to Contact Us.

For more info about ETCoLaw’s specialized Competition Law & Antitrust Practice, please visit our website at Competition Law & Antitrust.

28 April 2022

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Delivery Platforms

It has been reported in a local daily that apparently a new entrant has joined the delivery platform business and set the delivery rate charged to merchants at 15%, compared to 25% to 35% allegedly charged by other incumbent platform operators.

Whether the reported lower rate reflects sustainable, cost-competitive competition, or a market-entry strategy with a view to eliminate competitors, remains to be seen.

11 August 2021

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MyCC investigates P-hailing Delivery Platforms

The Malaysia Competition Commission (MyCC) has released a statement expressing its intention to investigate into issues relating to P-hailing delivery platforms, the alleged exorbitant fees imposed by such platforms on the merchants, as well as their service quality. The MyCC is looking into the conduct of such delivery platforms vis-a-vis F&B industry players, the riders and consumers. The investigation is likely to concern certain established industry players such as GrabFood, Food Panda, Lalamove and others.

There is a possibility of spillover to the other sectors that rely on the delivery platforms for delivery requirements at a time when almost the entire country is placed under some degree of movement restrictions.

To know more about ETCoLaw’s Competition Law Practice, please go to: Competition Law, Antitrust & Trade.

If you are or could be affected by the investigation and would like to know about your legal rights and duties under the investigation as well as the legal options available to you, please do not hesitate to CONTACT ETCoLaw.

27 July 2021

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Court of Appeal dismisses MyEG’s Appeal

The Court of Appeal in a unanimous decision dismissed the application by MyEG Commerce Sdn Bhd and MyEG Services Sdn Bhd for leave to appeal to the Court of Appeal against the decision of the High Court which had dismissed the two companies’ application for judicial review.

To recap, the Competition Commission (MyCC) found the two companies in violation of the Competition Act 2010 by abusing its dominant market position and imposed a total penalty of RM9.34 million plus daily penalty on 24 June 2016. The two companies appealed to the Competition Appeal Tribunal (CATM) which dismissed their appeals on 28 December 2018.

The two companies then sought judicial review of the CATM decision at the High Court but the latter dismissed the judicial review application on 24 January 2019. The two companies filed an appeal with the Court of Appeal which handed down its decision not to grant leave on 3 May 2021.

To know more about ETCoLaw’s Competition Law Practice, please go to: Competition Law, Antitrust & Trade.

If you would like to know how Competition Law affects your business operations, or compliance with Competition Law, please do not hesitate to CONTACT ETCoLaw.

4 May 2021

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Court of Appeal allows Appeals by Malaysia Airlines and Air Asia

The Court of Appeal allowed the appeals by Malaysia Airlines and Air Asia against the decision of the High Court which set aside the decision of the Competition Appeal Tribunal (CATM) which had found the two airlines not in breach of the Competition Act 2010, contrary to the finding of the Competition Commission (MyCC).

The Court of Appeal reinstated the decision of the CATM and quashed the RM10 million penalty imposed on each of the airlines.

Much to one’s dismay, the appeal was apparently disposed of on a procedural issue, namely, whether the MyCC was a person adversely affected by the decision of a public authority so as to be entitled to seek judicial review of the CATM decision. In other words, there was apparently nothing substantive about competition law in the decision.

[Update] The issue whether the MyCC has the locus standi to seek judicial review in the event of an unfavourable decision against it at the CATM was raised by our Dr. Vince in his article, published in 2015, which reviewed the Competition Act 2010. With the decision of the Court of Appeal, the law as it stands now is that the MyCC does not have the locus standi. For the article, click PUBLICATIONS.

To know more about ETCoLaw’s Competition Law Practice, please go to: Competition Law, Antitrust & Trade.

If you would like to know how Competition Law affects your business operations, or compliance with Competition Law, please do not hesitate to CONTACT ETCoLaw.

27 April 2021; updated 4 May 2021

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Amendments to the Competition Act 2010 to Regulate M&As

The government announced on 31 March 2021 that it had initiated the process to amend the Competition Act 2010 to include mergers and acquisitions regulation.

To know more about ETCoLaw’s Competition Law Practice, please go to: Competition Law, Antitrust & Trade.

If you would like to know how Competition Law affects your business operations, or compliance with Competition Law, please do not hesitate to CONTACT ETCoLaw.

1 April 2021

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MyCC Imposes RM10.3 Million Penalty on Dagang Net for Abusing Its Dominant Position

The Malaysia Competition Commission (MyCC) imposed a financial penalty of RM10.3 million on Dagang Net Technologies Sdn Bhd (Dagang Net) for abusing its dominant position by engaging in enclusive dealing. Dagang Net, which was at the material time, a subsidiary of Dagang NeXchange Berhad (which was at the material time appointed by the Malaysian government as the sole service provider to provide online trade facilitation services for the Sistem Maklumat Kastam under the National Single Window (NSW) program.

The MyCC found Dagang Net having engaged in exclusive dealing through the imposition of exclusivity clauses on software providers of the NSW. The anti-competitive conduct harmed competition in the market because it prevented software providers from providing similar services to end users (namely, the manufacturers, importers, exporters, freight forwarders, and shipping agents) in the upcoming uCustoms system.

The financial penalty of RM10.3 million aside, the MyCC also directed Dagang Net to cease and refrain from engaging in exclusive dealing in the future, and directed the directors and senior management executives of the company to enrol in Competition Law Compliance Training at their own expense.

This appears to be the second reported case in which the MyCC found a government-appointed monopoly to have abused the latter’s market monopoly position and infringed the competition law.

If you have any Competition Law issues, or would like to know more about our firm’s Competition Law and Antitrust Practice, please do not hesitate to CONTACT ETCoLaw.

26 February 2021competition antitrust market definition abuse of dominant position cartel anti-competitive agreement threshold safe competition antitrust market definition abuse of dominant position cartel anti-competitive agreement threshold safe harbour

MyCC’s Final Decision against PIAM and Its 22 Members

After a few years of investigations, the Malaysia Competition Commission (MyCC) finally issued its final decision against Persatuan Insurans Am Malaysia (in English, the General Insurance Association of Malaysia) (PIAM) and its 22 members.

In its decision, the MyCC found PIAM and its 22 members contravened section 4 of the Competition Act 2020 by entering into an anti-competitive agreement on the application of trade discounts on parts prices and hourly labour rates for motor vehicle repairs by workshops under the PIAM Approved Repairers Scheme (PARS). In addition to financial penalties, the MyCC also imposed cease and desist orders on the parties.

The MyCC imposed the decision notwithstanding the fact that the arrangement was put in place through the facilitation and direction of Bank Negara Malaysia (the Central Bank of Malaysia) to the general insurers, and notwithstanding the fact that the parties concerned apparently hired some of the Big 4 or Big 10 law firms in town or those firms with paid-for third party rankings.

The latest decision is another caution to businesses when dealing with government agencies. Do seek legal advice before taking any instructions or directions from government agencies.

If you wish to know more about ETCoLaw’s Competition Law & Antitrust Practice, please go to Competition Law, Antitrust & Trade.

Our Dr. Vince is a pioneer in Competition Law in Malaysia, having published a number of articles on Competition Law in leading international journals. To view his articles, go to PUBLICATIONS.

1 October 2020

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Google to Negotiate on Payments to French News Publishers

The Paris Court of Appeal upheld the decision of France’s competition authority which had ordered Google to enter into negotiations with French publishers with a view to making payments for the use of the latter’s news contents.

The latest ruling came notwithstanding Google’s arguments that the French news companies benefit from the exposure to millions of readers who visit Google’s website and are, in turn, linked to the news’ portals.

The French ruling is also different from the pledge by Google last week that it would pay publishers in Germany, Brazil, Argentina, Canada and the UK $1 billion over the next 3 years for the use of their news.

The latest ruling came on top of the Australian Competition and Consumer Commission’s drafting of a mandatory news code which will force Internet giants like Goodle and Facebook to negotiate payments with Australian publishers for using their contents.

If you have any Competition Law issues, or would like to know more about our firm’s Competition Law and Antitrust Practice, please do not hesitate to CONTACT ETCoLaw.

Sources: The Guardian (https://www.theguardian.com/media/2020/oct/10/backers-of-australias-mandatory-news-code-welcome-french-ruling-on-google); ABC News (https://abcnews.go.com/Business/wireStory/french-court-upholds-order-google-pay-news-companies-73495517)

9 October 2020

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