Competition Law seeks to protect the process of competition for the ultimate benefit of the citizens, allowing for lower prices, better products and choices for consumers.

1. By
Sudhar Thillainathan

2. 2
 Seeks to protect the process of competition
(and not “a” competitor)
 Ultimately to benefit the citizen:
- Lower prices
- Better products
- Choice for consumers

3.  Competition Act 2010 - In force since 1
January 2012
 Administered by Competition Commission of
Malaysia (MYCC)
 Competition Commission Act 2010
3

4.  Malaysian Competition Commission (MyCC)
has been established
 Chairperson
 4 commissioners representing the
government
 4 commissioners from the private sector

5.  Extra Territorial Effect
 Applies to any commercial activity outside
Malaysia AND
 Which has an effect on competition in any
market in Malaysia
 Exclusions
 The Act does not apply to commercial
activities regulated by the Communications
and Multimedia Act 1998 and the Energy
Commission Act 2001

6.  Financial Penalties for Infringement: Up
to 10% of worldwide turnover of an
enterprise over the period of
infringement
 Private Action
 Personal Liability for Offences
◦ Director, CEO, COO, manager,
secretary personally
◦ Subject to due diligence defence
◦ Fine up to RM 1 million or
imprisonment up to 5 years or both
6

7. Part 1
7

8. 2
8
Define the Market1
Assessment of Market Power
Market Shares Calculated
3

9.  Worldwide standard in market definition - SSNIP test is
applied in determining the “relevant market” of a
product or a service
S – Small but
S – Significant
N- Non-Transitory
I – Increase in
P – Price
9
(also known as hypothetical monopolist test)

10.  The test includes in the market
everything that offers substitution to the
product/ service and excludes un-
realistic substitutes.
 The narrower definition of the relevant
market, the more likely enterprises will
be found to have market power.
 Requires actual market data
10

11. 11
Other types
of Canned
Food
Canned
Tuna
Other brands
of Sardine
Fresh
sardines
Dried/
salted fish

12. Part 2
12

13. Anti-competitive
agreements
Section 4
Abuse of
Dominant Position
Section 10
13

14.  Key concepts and obligations
◦ Covers horizontal and vertical agreements
◦ Object or effect
◦ Significantly Prevent, Restrict, Distort Competition
14

15. 15
DEALER
END USER
Horizontal
Manufacturer YManufacturer X
Vertical
Reseller/Agent

16. “Agreement” means -
“any form of contract, arrangement or understanding,
whether or not legally enforceable, between
enterprises, and includes a decision by an association
and concerted practices.”
16

17. 17
 “Object” - intended to restrict competition
e.g. price fixing, giving price information,
share markets, fixing minimum resale pricing
 “Effect” - no intention but the restriction has
the effect of restricting competition due to the
market environment for agreement e.g.
exclusive agreements and non-compete
provisions. An economic and marketplace
impact analysis required

18. Cartels
18

19.  Cartels (where 2 or more competitors
agree not to compete with each other)
are serious infringements. No safe-
harbours and deemed anti-competitive
• Price fixing
• Market sharing
• Bid rigging (e.g. cover pricing)
• Control of production or market
access
• Exchanging sensitive commercial
information about future prices etc
19

20. Bid Rigging
 Submitting cover bids that are high intended to be
unsuccessful, bid suppression, bid rotation
 Suspicious bid documents may include:
◦ Identical mistakes, fax numbers, postmarks, forms or cost
estimates
Example: Guam Storm Damage Repair Case (US)
“Please give us a call us.”
◦ Indications of last-minute changes
◦ Indications that bid is not genuine, such as lack of detail or
failure to comply with required terms
20

21. 21

22.  Electrical and Building Works Companies in
Singapore
◦ 14 firms accused of rigging bids for more than 10
electrical and building works projects from 2007 to
2009
◦ One of the parties realised the wrongdoing of its
previous management and blew the whistle on the
cartel
22

23. Resale Price Maintenance
 Where manufacturers impose upon
downstream retailers or distributors
(“resellers”) the prices at which such resellers
would charge to customers for the
manufacturer’s product
 Direct and Indirect RPM
 MyCC takes strict stance against RPMs
23

24.  Soda Ash case (EU Competition Law)
ICI, a British company and Solvay, a Belgian company,
are the main producers of soda ash with a long
history of explicit market sharing arrangement
Post the introduction of anti-trust laws, the express
agreement was terminated. However they continued
to respect each other’s markets by staying out.
The Commission found that the term ‘concerted
practice’ covered also tacit collusion. NO NEED
for an express agreement for competition law to
apply

25.  Express Bus Companies in Singapore
16 bus operators and their association agreed to
set a minimum selling price aimed at preventing
price wars
In March 2011, Competition Appeal Board issued
financial penalties totaling S$1.14 million against
the 17 infringing parties

26.  In Malaysia the first MyCC case – Cameron
Highlands Floricultarist Association (CHFA)
 Members of the Association collectively agreed
to increase the price of flowers by 10%
 The MyCC found the action to be anti-
competitive (infringement of Sec4(2)) i.e. a
horizontal agreement to fix prices
 No financial penalty imosed but a cease and
desist order was made, an undertaking from
CHFA was demanded and a statement of CHFA’s
remedial actions were to be published in the
mainstream newspapers.

27. 27
 Generally benign especially if there is
effective competition at both the upstream
and downstream level
 But where a firm has market power, inter
brand competition will be limited
 Important to promote Intra-brand
competition
Vertical Agreements

28.  Guidelines identify the following vertical
practices
◦ Resale Price Maintenance
◦ Tying
◦ Exclusive Distributorship Agreement Covering a
geographic territory
◦ Exclusive Customer Allocation agreements
◦ Franchise Agreements
◦ Up-Front Access Payment
28

29.  Where manufacturers impose upon downstream
retailers or distributors (“resellers”) the prices at
which such resellers would charge to customers for
the manufacturer’s product
 Direct and Indirect RPM
 Warnings, penalties, delay or suspension of
deliveries by manufacturer as a way to impose the
resale price upon resellers.
 MyCC takes strict stance against RPMs
29

30.  Effects-based Prohibitions (s.4(1)) – ‘significance’
of effect on a defined relevant market – assessment
of market share
 No safeharbour for “per se” prohibitions:
 Price-fixing
 Market-sharing
 Supply-sharing
 Limitation or control of production
 Bid-rigging
30

31. General safe harbour:
Anti-competitive agreements or association decisions
will not be considered ‘significant’ if:
 The combined market share of the parties is less
than 20% of the relevant market.
 If the parties to the agreement are not competitors,
their individual market share in any relevant market
is not more than 25%.
31

32. Specific safe harbours:
• For non-price vertical agreements
No significant effect if market share of both buyer
and seller is less than 25% of their relevant market
• Exclusive distribution agreements
No significant effect if the seller has less than 30%
of the upstream market and the exclusivity is for less
than 5 years
• Exclusive customer allocation agreements
No significant effect if both buyer and seller’s
market share are less than 30% and the exclusivity is
for less than 5 years
32

33.  Must show :
 significant identifiable technological,
efficiency or social benefits
 anti-competitive effects are necessary in
order to gain the benefits
 the benefits proportionate to the
detrimental effects (balancing act)
 competition is not eliminated completely
33

34. 34
An exemption may be given based on
the foregoing grounds:
 Application Block
Individual
 Self Assessment

35. 35
Is it an agreement?
Is it excluded?
YES
Does it have an anti-competitive
effect?
NO
Does the safe harbour apply?
YES
NO
Are there overriding benefits?
Are there applicable exemptions?
NO
NO
YES
NO
YES
YES
CONTRAVENTION
NO
CONTRAVENTION
ANALYSIS

36. 36
 “Dominant position” means a situation in
which one or more enterprises possess such
significant power in a market to adjust prices
or outputs or trading terms, without effective
constraint from competitors or potential
competitors;
 Related corporations under Companies Act
1965 are considered to be a single economic
entity for the purpose of determining
dominance

37. 37
2 step approach:
Is there an abuse?
Is the enterprise or group
dominant in the market?
*being dominant is not prohibited!

38. 38
Meaning
 A market share above 60% is indicative that an
enterprise is dominant
BUT
 a less than 60% market share could also be
viewed as being in a dominant position, for
example where there are numerous small market
players each of which are less than 10%, a 40%
holder of market share may be regarded as
“dominant”

39. 39
Refusal to
supply
Predatory
Pricing
Margin
Squeeze
Tying/
Bundling
Price/Non-price
discrimination

40. 40
BUSINESS
PRACTICE
HARMFUL ECONOMIC
EFFECT
LEGAL QUALIFICATION
High prices Exploiting the customer Excessive pricing
Section 10
Low prices
(Undercutting)
Shut-out Competitor Predatory pricing and
abusive rebates
Section 10
High prices
(wholesale) + low
prices (retail)
Downstream
competitors exclusion
Abusive margin
squeeze
Section 10
Differentiated prices Customers exclusion Price discrimination
Section 10

41. Prohibited due to exclusionary
effects:
◦ Fidelity/loyalty rebates
◦ Discounts or rebates unrelated to
cost savings
◦ Discount schemes which are
conditional on purchase of tied
products
◦ Retrospective rebates
41

42.  Price discrimination – different prices are charged
to different buyers for the same product (not
reflective of differences in cost, quantity or
quality of the goods or risk exposure for the
supplier)
 Trading condition discrimination – when
dissimilar conditions are imposed on equivalent
transactions e.g. poorer quality of service to one
downstream undertaking compared to another
which is not reflected in pricing
42

43.  Tying : When the purchase of one product
(the tying product) becomes conditional upon
the purchase of a second product (the tied
product), without objective justification.
 Bundling : The practice of joining related
products together for the purpose of selling
them as a single unit.
43

44. Part 3
44

45. 45
• Transport
• Financial institutions
• Food production
• Import and
Distribution
• Healthcare &
Professional services
• Housing developers

46.  MYCC has clarified that:
“The onus is on the company
to provide evidence of a compliance
programme and that steps have been
taken to ensure adherence by
employees, including training”
46

48. END OF PART 1

49. Overview of the Malaysian
Competition Commission –
The Constitution & Enforcement Power
Sudhar Thillainathan
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50. Constitution of the
Commission
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51. The Malaysian Competition
Commission (MyCC)
 An independent body established under the
Competition Commission Act 2010 to
enforce the Competition Act 2010.
 Its main role is to protect the competitive
process for the benefit of businesses,
consumers and the economy.
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52. Members of MyCC
 Chairman –
Tan Sri Dato’ Seri Siti Norma Yaakob
Siti Norma was the first woman to be elevated to the High
Court in 1983, the first woman to be appointed as a Court of
Appeal judge in 1994 and the first woman to be a Federal
Court judge in 2001. She was later sworn in as the Chief Judge
of Malaya in February 2005, a position she held until her
retirement in January 2007. Presently she is the Chairman of
RAM Holdings Berhad.
52Shook Lin k Bok

53. Members of MyCC
 Public Sector Commissioners
1. Tan Sri Abdul Gani Patail (Attorney-General of
Malaysia)
2. Datuk Haji Mohd Zain Bin Mohd Dom (Secretary-
General of the Ministry of Domestic Trade, Co-
operatives and Consumerism)
3. Datuk Dr. Rebecca Fatima Sta Maria (Secretary-
General of the Ministry of International Trade and
Industry)
4. Datuk Noriyah binti Ahmad (Director-General of
the Economic Planning Unit, Prime Minister’s
Department)
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54. Members of MyCC
 Private Sector Commissioners
1. Dato’ Dr. S. Sothi Rachagan (Vice-President
(Academic Affairs), Nilai University College)
2. Ragunath Kesavan (Legal Practitioner)
3. Dato’ Dr. Michael O.K. Yeoh (Chief Executive
Officer of the Asian Strategy & Leadership Institute
(ASLI))
4. Tuan Abd Malek bin Ahmad (Executive Director of
an IT and 3-D animation firm)
5. Y.Bhg. Prof. Datin Dr. Hasnah Haron (Dean,
Faculty of Graduate School of Business, Universiti
Sains Malaysia)
54Shook Lin k Bok

55. 55
Structure of the Commission
Commission
Economic
Advisor
Chief Executive
Office
LegalInvestigation
&
Enforcement
Strategic Planning &
International
Relations
Corporate and
management
services
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56. Preamble
The Competition Commission Act 2010 is an act:
i. to provide for the establishment of the
Competition Commission;
ii. to set out the powers and functions of such
Commission;
iii. and to provide for matters connected
therewith or incidental thereto.
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57. Constitution
 The members of the Commission are appointed by the
Prime Minister upon the recommendation of the
Minister.
 They consist of:
a. a Chairman,
b. four government representatives, one of whom shall
be a representative of the Minister of Domestic
Trade, Cooperative and Consumerism; and
c. between three to five other members who have
experience and knowledge in business, industry and
consumer protection.
 Such constitution suggests that the Government will
have considerable influence in determining whether an
activity is anti-competitive or whether there is abusive
conduct.
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58. Tenure of the Office
 A member of the Commission shall not hold
office for a term exceeding three years.
 A member of the Commission shall be eligible
for reappointment but no member shall hold
office for more than two consecutive terms.
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59. Competition Committee
 The Commission may establish any committee
as it deems necessary or expedient to assist it
in the performance of its functions under the
competition laws.
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60. Disclosure of Interest
 A member of the Commission or any committee
established who has acquired a direct or indirect interest
whether by himself, a member of his family or his
associate in relation to any matter under discussion by
the Commission or committee shall disclose to the
Commission or committee, the fact of his interest and
the nature of that interest.
 If the member fails to disclose his interest, he would be
taken as have committed an offence and shall, on
conviction, be liable to a fine not exceeding 500,000
ringgit or to imprisonment for a term not exceeding 5
years or to both.
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61. Functions of the Commission
1. Advise the Minister or any
other public or regulatory
authority on all matters
concerning competition.
2. Advise the Minister on
international agreements.
3. Alert the Minister to the
actual or likely anti-
competitive effects of current
or proposed legislation.
Undertaking studies and
market reviews
concerning competition in
Malaysia
Enforce the
Competition
Act
Issue guidelines in relation to
the implementation and
enforcement of the
competition laws
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62. Functions of the Commission
Act as an
advocate for
competition
matters
Collect
information
for the
performance
of the
Commission's
functions
Consider and make
recommendations to
the Minister on reforms
Publish and raise awareness
among persons engaged in
commerce or trade and among
the public of Competition law
information
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63. Market Reviews
 Section 11 Competition Act 2010
 The Commission’s market review role is similar to the
role of the Office of Fair Trading in the United Kingdom.
 The Commission may on its own initiative or at the
minister’s request study the structure of a given market,
the conduct of enterprises in the market and any other
relevant matters, to determine whether any feature or
combination of features of a market prevents, restricts
or distorts competition in the market.
 On completion of a market review, the Commission must
publish a report of its findings and recommendations.
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64. Market Reviews
 The report must be available to the public.
 It is understood that such requirement reflects
an expectation that the Competition Commission
will conduct its proceedings in a transparent
manner.
 It is hoped that the Competition Commission’s
market review role may bring far reaching
implications in view of the Malaysian
government’s commitment to transform the
Malaysian economy through innovation and
competition, under the New Economic Model .
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65. Power to Issue Guidelines
 Section 66 Competition Act 2010
 The Commission may issue:
a. guidelines on the economic and legal analysis to
be used in determining cases under this Act;
and
b. guidelines on the principles to be used in
determining
any penalty or remedy imposed under this Act.
 The Commission may revoke, vary, revise or
amend the whole or any part of any guidelines
issued. – there are currently 4 sets of guidelines
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66. Powers of the Commission
Grant
Exemptions
Investigation
Powers
Market
Review
Impose
Penalties
66
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67. Direction by Minister
 The Commission shall be responsible to the
Minister.
 The Minister may, in writing, give to
the Commission directions of a general
character, consistent with the provisions of
the competition laws, relating to the
performance of the functions and powers of
the Commission.
 The Commission shall give effect to such
directions.
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68. Chief Executive Officer
 The Chief Executive Officer shall be appointed by the
Minister.
 The office of the Chairman is separate from the office of the
Chief Executive.
 The Chief Executive shall:
i. be responsible for the overall administration and
management of the functions, activities and day-to-day
affairs of the Commission.
ii. have general control of the employees of
the Commission.
iii. perform such other duties as the Commission direct.
iv. act under the general authority and direction of
the Commission in discharging his duties.
v. be an employee of the Commission.
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69. Protection of
Officers and Other Persons
 No action, suit, prosecution or proceedings
shall be instituted in any court against
the Commission, a Commission officer or any
other person acting on behalf of
the Commission or a Commission officer in
respect of any act ordered to be done or done
by him in such capacity provided that he at the
time had carried out his functions in good faith.
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70. Public Authorities
Protection Act 1948
 The Public Authorities
Protection Act 1948 [Act 198] shall apply to
any action, suit, prosecution or proceedings
against the Commission or against any
member of the Commission, any member of a
committee, and employees or agents of
the Commission in respect of any act, neglect
or default done or committed by him in good
faith or any omission by him in good faith, in
such capacity.
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71. Investigation
and
Enforcement
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72. Investigation
 Investigation may be initiated by:
i. The Commission itself (Section 14); or
ii. By Ministerial directive (Section 14); or
iii. Complaint received (Section 15).
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73. Close of An Investigation
 Section 16 Competition Act 2010
 The Commission may decide to close an investigations
of an infringement if the Commission is of the opinion
that:
i. It would be inappropriate to continue the
investigation in view of the provision of an
undertaking; or
ii. The continuation of the investigation would not
constitute the making of the best use of the
Commission’s resources.
 When closing the investigation, a statement would be
published setting out a brief summary of the reasons
for closing it.
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74. Investigatory Power
 If the Commission has decided to investigate, the
Commission and its officers are granted the same
investigatory powers as those of a police officer in
relation to corresponding police investigation in
seizable cases.
 The powers of investigation include:
a. Power to require provision of information
b. Power to retain document
c. Access to records, etc.
d. Power to conduct search and seizure with
warrant/without warrant.
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75. a) Power to Require Provision
of Information
Section 18 Competition Act 2010
ACQUAINTED WITH INFORMATION?
 Do you have any information about the
infringement?
 Do you have any documents relevant to the
infringement?
 Commission may require you to provide the
information, produce the document or give a
statement.
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76. a) Power to Require Provision
of Information
I DON’T HAVE ANY DOCUMENT.
 Inform where the document can be found.
 Identify the last person who had the custody of the
document and where he may be found.
 Information provided shall be true, accurate and
complete.
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77. b) Power to Retain Document
 Section 19 Competition Act 2010
 For such duration as it deems necessary.
 Certified copy of the document shall be
admissible as evidence as if it were the original
document.
 If the document is no longer necessary, the
Commission may return the document to the
person who provided it.
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78. c) Access to Records, etc.
 Section 20 Competition Act 2010
 The Commission shall be allowed access to a
person’s records, books, accounts, or other
things for the purposes of carrying out any of
its functions or powers under this Act.
 A person who fails to comply with this commits
an offence.
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79. d) Search and Seizure
 Section 25 Competition Act 2010
 Magistrates may issue search warrants to the
Commission to enter premises, if there is
reasonable cause to believe that the premises have
been used for an infringement or there is evidence
on the premises necessary to
a Commission investigation.
 Conducted during reasonable
hour of day or night.
 If necessary, enter by force.
 If it is not practical to remove,
they shall seal the documents.
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80. d) Search and Seizure
 Whenever it is necessary to cause a woman to
be searched, the search shall be made by
another woman with strict regard to decency.
 If the Commission officer is satisfied that he has
reasonable cause to believe that investigation
would be adversely affected by reason of delay in
obtaining a warrant, he may enter the premises
and exercise all powers as if he were authorized to
do so by a warrant issued.
(Section 26 Competition Act 2010)
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81. d) Search and Seizure
Section 27 Competition Act 2010
ACCESS TO COMPUTERISED DATA
 When conducting a search, the Commission shall be
given access to computerized data.
 The Commission shall be provided with the
necessary password, encryption code, decryption
code, software or hardware or any other means
required for his access to enable the
comprehension of the computerized data.
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82. Privileged Communication
 Section 22 Competition Act 2010
 The Act protects privileged communication between
a professional legal adviser and his client.
 But if the client agrees to provide the information
the lawyer may furnish information, or alternatively
the lawyer shall furnish in writing the name and
address of the person to whom or by whom the
communication was made.
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83. Interim Measures
 Section 35 Competition Act 2010
 Pending completion of investigation, the
Commission may impose “interim measures”
by giving directions if the Commission
reasonably believes there is an infringement
and the measures are necessary as a matter of
urgency to:
i. prevent serious and irreparable damage;
or
ii. protect the public interest.
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84. Interim Measures
 These directions may include requiring or
causing any person to:
i. suspend performance of any infringing
agreement; or
ii. desist from the abuse of dominant position;
or
iii. do, or refrain from doing any act.
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85. Interim Measures
 Before giving a direction, the Commission shall serve
a written notice setting out its nature and reasons, to
the person whom it proposes to give the direction.
 That person would have a period of at least 7 days
from the date of the written notice to make a written
representation.
 Any direction given would cease to have effect on the
day of the completion of the investigation or twelve
months from the date the direction was given.
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86. Decisions
 Section 36 Competition Act 2010
 If on completion of the investigation, the
Commission proposes to make a decision, a written
notice of its proposed decision would be sent to
each enterprise, setting out:
i. Reasons, with sufficient detail;
ii. Penalties or remedial action;
iii. Inform each enterprise that they would be given
time to submit written representations and
make an oral representation before the
Commission.
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87. Oral Representation
 Section 37 Competition Act 2010
 The suspected enterprise is entitled to make
written or oral representation to the
Commission stating reasons for disagreement
or provide counter arguments.
 Oral representation can be represented by an
advocate and solicitor or authorised person
from the enterprise.
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88. Conduct of Hearings
 Section 38 Competition Act 2010
 Notwithstanding the oral representation, the Commission
may at any time conduct a hearing.
 A period of at least fourteen days notice in writing shall
be given to the enterprise concerned and to other
interested third parties if a hearing is to be conducted.
 The Commission may hold either individual hearings with
each of the enterprises and any other interested third
parties separately; or a single hearing attended by all
the enterprises involved and the interested third parties.
 The hearing can be conducted either in public or in
closed session to protect confidential information.
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89. No Infringement
Section 39 Competition Act 2010
If a decision of no infringement
is made, a notice stating the
facts and reasons shall be given
to the parties affected.
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90. Infringement
 Section 40 Competition Act 2010
On the other hand, if the Commission finds there is
an infringement, the Commission shall publish
reasons for such decision and notify the affected
parties within 14 days.
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91. Consequences of Infringement
 Section 40 Competition Act 2010
 To cease infringing acts immediately.
 The Commission may specify steps which are required
to be taken by the enterprise to end the infringement.
 The Commission may give any other direction as it
deems appropriate.
 A financial penalty shall not exceed 10% of the
worldwide turnover of the infringing enterprise over
the period during which the infringement occurred
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92. Leniency Regime
 Section 41 Competition Act 2010
 Much like most other competition legislation, to encourage
whistle blowing, a leniency regime is provided.
 Enterprises which admit involvement in anticompetitive
agreements and assist the Commission in investigations may
obtain a reduction of up to a maximum of 100% of any
penalties.
 The leniency regime may permit different percentages of
reductions to different enterprises. Factors to be considered:
 Whether the enterprise was the first person to bring the
suspected infringement to the attention of the Commission;
 The stage in the investigation at which:
• An involvement in the infringement was admitted; or
• Any information or other co-operation was provided; or
• Any other circumstances which the Commission
considers appropriate to have regard to.
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93. High Court
 Section 42 Competition Act 2010
 If a person fails to comply with a decision or direction
given by the Commission, the High Court shall make
an order requiring the person to comply.
 If the failure to comply with the decision includes a
failure to pay a penalty, the High Court shall order
that person to pay the penalty and pay interest at
the normal judgment rate running from the
day following that on which the payment
was due.
 Any breach of an order would be punishable
as a contempt of court.
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94. Infringement vs. Offence
 “Infringement”
(a) being a party to an anti-competitive
agreement; or
(b) abusing your dominant position.
 “Offence”
A general breach of the Act.
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95. Offence
 Obstruction is generally an offence under the Act. These
among others include:
• Failure to comply with the direction given to provide
records by the Commission during investigation;
• Use of confidential information obtained from the
investigation;
• Giving false or misleading information, evidence or
document;
• Destruction, concealment, mutilation or alteration of
records;
• Obstruction (assaults, obstructs, hinders or delays);
• Tipping off;
• Threats and reprisal.
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96. Offence
Section 21 Competition Act 2010
Consequences if “Confidential Information” Disclosed
 The person who discloses confidential information commits
an offence.
 However, disclosure is allowed:
• With consent of the person from whom obtained;
• If necessary for the performance of the functions and
powers of the Commission;
• If reasonably made during the proceedings by the
Commission or CAT, unless order otherwise;
• If made in connection with an investigation; or
• If made with the authorisation of the Commission to any
competition authority of another country upon request.
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97. Offence
Section 23 Competition Act 2010
Failure to Disclose Information
 Failure to disclose or omit to give any relevant
information or evidence or document or
provide false or misleading information is an
offence.
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98. Offence
Section 24 Competition Act 2010
Destroying Records
 It is an offence to destroy, conceal, mutilate or
alter or send or attempt to send out of
Malaysia, any record, book,
account, document, computerised
data with an intention to defraud
the Commission or prevent, delay,
or obstruct the carrying out of
an investigation.
98
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99. Offence
Section 32 Competition Act 2010
Obstruction
 Any person who
a. Refuses any Commission officer access to
any premises; or
b. Assaults, obstructs, hinders or delays any
Commission officer in effecting any entry
which the Commission officer is entitled to,
Commits an offence.
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100. Offence
Section 33 Competition Act 2010
Tipping Off
 Any person who discloses to any
party that an investigation is being
carried out and which is likely to
prejudice the investigation, commits an offence.
 Disclosure of information between a lawyer and his
client is not an offence if in the course of
professional employment unless it is with a view to
furthering any illegal purpose.
100Shook Lin k Bok

101. Offence
Section 34 Competition Act 2010
Threat and Reprisal
 No person shall –
Coerce or attempt to coerce any person to refrain from
making a complaint or
co-operating with Commission
in any investigation, or
Subject any person to any
commercial or other disadvantage
as a reprisal against the person for
making a complaint or co-operating
with the Commission in any investigation.
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102. Offence - Penalties
Section 61 Competition Act 2010
 Consequences of committing an offence:-
1st time offenders 2nd or subsequent
offence
A body corporate Fine not exceeding
RM5 million
Fine not exceeding
RM10 million
Individual Fine not exceeding
RM1 million; or a term
of imprisonment not
exceeding 5 years; or
both.
Fine not exceeding
RM2 million; or a
term of
imprisonment not
exceeding 5 years;
or both.
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103. Offence
 Section 63 Competition Act 2010
 In addition, where a corporation commits an
offence, the officers assisting in or responsible
for the management of the corporation shall be
deemed to have committed the offence unless he
proves that the offence was committed without
his knowledge or consent and he had taken all
reasonable precautions and exercised due
diligence to prevent the commission of the
offence.
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104. Competition Appeal Tribunal
 Section 51 Competition Act 2010
 The function of the Competition Appeal Tribunal is
to review the decision made by the Commissioner.
 Notice of Appeal shall be filed within 30 days and
must state in summary from the substance of the
decision of the Commission appealed against.
 The Competition Appeal Tribunal consists of 3
members (or even members) and has the power to
call parties to appear before them.
 Pending the appeal, the Commission’s decision
continues to be binding and enforceable unless the
Appeal Tribunal grants a stay of the decision.
104Shook Lin k Bok

105. Competition Appeal Tribunal
 The Competition Appeal Tribunal may
confirm or set aside the decision which
is the subject of the appeal and may:
a. remit the matter back to the Competition
Commission;
b. impose, revoke or vary the amount of a financial
penalty; or
c. give a direction, take such other step, or make any
other decision that the Commission could itself have
given, taken or made.
 The Tribunal’s decision is final and binding on the parties
to the appeal.
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106. Powers of the
Commission
Investigation
a) Power to
require provision
of information
b) Power to
retain
documents
c) Access to
records, etc
d) Search and Seizure
with/without warrant
Interim
Measures
Decisions
Oral Representation Hearing
InfringementNo infringement
Leniency
Regime
High Court
Undertaking Market
Review
Issue
Guidelines
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Penalty

107. Questions
107
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108. 10
8
Thank you