This update was published in July 2021, as part of our quarterly newsletter, Asia Pacific Competition Highlights. Click here to access the full report, which covers the most notable antitrust developments across 10 Asia Pacific jurisdictions.
MAS and AirAsia win appeals to quash RM10 million infringement fine
The Court of Appeal has allowed MAS/AirAsia's appeals against the High Court's decision, which reinstated the initial infringement fines imposed by Malaysia Competition Commission (MyCC).
In April 2021, the Court of Appeal allowed the appeals by Malaysia Airlines (MAS) and AirAsia and set aside the High Court's decision in 2018 which upheld the initial infringement decision by the MyCC. In 2014, MyCC imposed fines of MYR10 million (approximately US$2.39 million) on each airline for an alleged market sharing agreement.
The Court of Appeal reinstated the 2016 decision by the Competition Appeal Tribunal (CAT), which found that MyCC had erred in interpreting the collaboration agreement between MAS and AirAsia as a market-sharing agreement.
In its decision, the Court of Appeal makes clear that MyCC must abide by the decision of the CAT, which is an appellate authority. The decision reaffirms Malaysian competition law which states that the CAT has the exclusive jurisdiction to review any decision made by MyCC and that the CAT's decisions are final and binding on the parties to any appeal. As such, MyCC did not have legal standing to file an application for a judicial review against the CAT's decision in 2016. The CA also found that because the collaboration agreement had been entered into before the Competition Act came into force, it was perfectly lawful for the airlines to discuss such collaborative arrangements at the material time.
MyCC is seeking leave to appeal the ruling of the Court of Appeal, the development of which will set an important precedent for antitrust appeals against decisions by the CAT.
MyEG loses latest appeal against MyCC's abuse of dominance decision
The Court of Appeal has dismissed MyEG's appeal against the High Court's decision to affirm MyCC's abuse of dominance decision against MyEG.
In May 2021, the Court of Appeal dismissed the latest appeal by MY E.G. Services Berhad and MY E.G. Commerce Sdn. Bhd., (collectively, MyEG), against MyCC's 2016 infringement decision against MyEG. MyCC had imposed a fine of MYR2.3 million (approximately USD 0.55 million) on MyEG, an e-government service provider for abuse of dominance, by applying different conditions to equivalent transactions in the sale of mandatory insurance for online foreign worker permit renewal applications. The case was MyCC's first abuse of dominance infringement finding.
By the date of the CA's decision, MyEG had paid the entire fine which had accumulated to MYR9.6 million (approximately USD 2.29 million) due to daily penalties from continued non-compliance and had fully complied with the remedial actions imposed by MyCC.
