To date, the MyCC has issued 7 findings of infringement under Articles 40 and 9 of the findings of non-infringement under Article 39 of the Act with regard to conduct prohibited under Article 4 (anti-competitive agreement) or Article 10 (abuse of dominant position) of the Act. If the company has a competitive compliance program, does that affect the penalties? Increased enforcement has also increased awareness of competition law, and it is increasingly common for businesses to have compliance programs in place. Companies that do not have compliance initiatives are at risk of violating the Competition Act and may be subject to hefty fines for their turnover for the duration of the infringement. Are there any proposals for competition law reform in your jurisdiction? If so, what impact does this have on the company`s compliance? The Competition Act prohibits agreements between undertakings which have the object or effect of preventing, restricting or significantly distorting competition in Malaysia. This is sometimes referred to as the “first chapter ban” and includes both agreements between competitors (horizontal agreements) and agreements between companies operating at different levels of the supply chain (vertical agreements). Under the Competition Act, certain horizontal agreements are in themselves illegal, i.e. they are considered to have as their object the prevention, restriction or distortion of competition in the market (without it being necessary to examine whether the agreement has anti-competitive effects on the market). These include horizontal agreements to: • review distribution agreements, pricing system and marketing strategy; • Advice on competition issues such as abuse of dominant position, exchange of information, pricing in the retail trade, etc. In addition, it is also important to note that competition laws in Malaysia do not fall exclusively within the jurisdiction of MyCC. Other sectors may be excluded from enforcement, but fall under other laws regulated by other sectoral regulators.
In assessing whether an agreement has as its object the restriction of competition, the MyCC examines not only the actual common intention of the parties, but also the objectives of the agreement, taking into account the economic environment. If the subject matter of an agreement is very likely to have significant anti-competitive effects, the Board of Inquiry may determine that the agreement has an anti-competitive purpose. Once an anti-competitive objective has been established, the Board of Inquiry does not need to consider the anti-competitive effect of the agreement. However, if no anti-competitive object is found, the agreement may still contravene the Competition Act if there is an anti-competitive effect. If an anti-competitive object is demonstrated, the MyCC does not need to examine the anti-competitive effect of the agreement and may therefore conclude that there has been an infringement even before the anti-competitive effect manifests itself. However, if no anti-competitive object is found, the agreement may still contravene the Competition Act if there is an anti-competitive effect. Notifications of mergers and acquisitions in a communications market may be sent to the MCMC in accordance with the Mergers and Acquisitions Guidelines. The Guidelines for Licensing to Conduct contain guidelines (primarily for licensees under the Communications and Multimedia Act 1998) for applications for driving authorization to the MCMC TRE that may have the purpose or effect of significantly reducing competition in a communications market.
The Communications and Multimedia Act 1998 (CMA) prohibits anti-competitive behaviour in the communications, computer, multimedia and broadcasting sectors. Prohibited types of anti-competitive conduct include: There is no explicit “information sharing” provision in the Competition Act. The exchange of information is assessed in the light of anti-competitive agreements between undertakings within the meaning of Section 4 (see prohibition in Chapter 1). The MyCC is likely to pursue European affairs for the exchange of commercially sensitive information, including cases of hub-and-spoke agreements where the parties to a cartel use a third party (e.B. in a vertical agreement) as a channel for exchanging information. What are the limitation periods for infringements of competition law? The limitation period for an action under private law for infringements of competition law under the Competition Act is six years from the date on which the plea arose. The limitation period is delayed if: MyCC`s Chapter One Prohibition Guidelines state that the exchange of price information may fall within a scope of conduct that is considered “a significant prevention, restriction or distortion of competition in the marketplace” under subsection 4(2) of the Competition Act. Whether the exchange of information other than prices substantially restricts competition should be considered on a case-by-case basis.
In general, the frequent exchange of confidential information in a market where there are few competitors is more likely to have a significant impact on competition. In addition, the exchange of information between competitors which is not made available to consumers is also likely to have a significant negative effect on competition. The Competition Act introduced a general Competition Act for all markets in Malaysia, with the exception of industry regulators under the Communications and Multimedia Act 1998 with respect to the network communications and broadcasting sectors; the Energy Commission act 2001; and the Malaysian Aviation Commission Act 2015 with respect to the aviation services sector. Activities regulated by the Petroleum Development Act, 1974 and the Petroleum Regulations, 1974 with respect to upstream operations involving the exploration, exploitation, extraction and extraction of oil on land or off the coast of Malaysia are also excluded from the application of the Competition Act. According to the definition of “enterprise” in the Competition Act, infringements of competition law can only be prosecuted against companies and not against individuals. However, if an agent or employee is simultaneously investigated for a separate offence such as corruption, it is advisable that the person be represented separately. The Malaysian Competition Act 2010 (the Competition Act) is enforced by the Malaysian Competition Commission (MyCC) and introduces competition law for all markets in Malaysia, with the exception of certain sectors that remain subject to sector regulation. Competition matters in the communications and multimedia sector fall within the jurisdiction of the Malaysian Communications and Multimedia Commission (MCMC) under the provisions of the Communications and Multimedia Act 1998. In the energy and gas supply sector, competition issues are regulated by the Energy Commission (EC) under the Energy and Gas Commission Act 2001 and .dem the Gas Supply Amendment Act 2016 2016. The aviation sector, on the other hand, will be regulated by the Malaysian Aviation Commission (MAVCOM) after the Malaysian Aviation Commission Act 2015 comes into force. While a violation is not a criminal offense, the financial impact can be significant.
If you are found guilty of a violation, you can face a fine of up to 10% of your company`s global revenue throughout the violation. The exact amount depends on many factors, including the gravity, duration and impact of the infringement on competition and the market. The compliance guidelines of the Competition Commission of Malaysia`s Competition Act 2010 stipulate that for a company to identify competition risks, all agreements and business practices must be reviewed, including contractual and non-contractual agreements and business practices in force. Particular attention should be paid to the following points. In 2016, MyCC found that MyEG Services Bhd (“MyEG”) had violated Section 10(2)(d)(iii) of the Act, according to which MyEG had exploited its dominant position by imposing different conditions on similar transactions with its competitors, thereby affecting competition in the market for the sale of compulsory insurance for the renewal of foreign workers` fixed-term licences. The renewal of insurance policies acquired from other insurers was not approved as quickly as insurance received from MyEG through its subsidiary. In addition to internal audits, the company may also consider appointing independent experts to review internal competition law compliance processes and protocols. What types of vertical agreements between the company and its suppliers or customers are subject to the application of competition law? Since anti-competitive conduct is not a criminal offence, there is no privilege against self-incrimination […].