MyCC fails appeal to reinstate RM10m fine against MAS, AirAsia

 

The Federal Court dismissed Malaysia Competitions Commission’s (MyCC) application for leave to appeal to levy RM10 million fines on MAS and AirAsia each over an alleged anti-competitive pact.

A three-person bench chaired by Court of Appeal president Rohana Yusuf made the unanimous decision this afternoon. The other bench members are Federal Court judges Abdul Rahman Sebli and Mary Lim Thiam Suan.

Rohana ruled that the questions of law posed by MyCC failed to abide by the requirements of Section 96 of the Courts of Judicature Act 1964.

Section 96 states that leave to appeal is only granted if it meets the threshold of new or novel questions of law that need to be heard by the Federal Court.

"We dismiss the (MYCC's leave to appeal) application," Rohana said, ruling that the regulator need to pay RM30,000 costs to each airline.

In 2014, MyCC fined MAS and AirAsia RM10 million each over both airliners’ alleged breach of the market sharing prohibition under Section 4 (2) of the Competition Act 2010 by entering into an agreement on sharing markets in the air transport services sector within Malaysia.

The RM10 million fine was based on flights by both the airlines in the four months between Jan 1 and April 30, 2012, on the Kuala Lumpur-Kota Kinabalu, Kuala Lumpur-Kuching, Kuala Lumpur-Sandakan and Kuala Lumpur-Sibu routes.

Both airlines then appealed to the Competition Appeal Tribunal (CAT). On Feb 18, 2016, the non-judicial body set aside MyCC's decision to impose the fines, ruling that the airlines did not infringe Section 4 (2) of the Competition Act 2010.

MyCC then filed a judicial review application in the Kuala Lumpur High Court to seek a certiorari order to overturn CAT's decision and to reinstate the commission’s decision to mete out the fines on MAS and AirAsia.

In December 2018, the High Court allowed MyCC's judicial review and reinstated the regulator’s decision to impose the fines.

Both MAS and AirAsia then appealed to the Court of Appeal, which on April 27 last year, allowed the airlines’ appeal to quash the High Court ruling. MyCC then filed an application for leave to appeal to the Federal Court.

Today’s decision was over MyCC’s application for leave to appeal against the Court of Appeal ruling.

According to the Court of Appeal decision, MyCC must abide by CAT, which has appellate authority over decisions made by the commission. 

The Court of Appeal ruled that the commission cannot ignore or challenge CAT’s decision unless expressly provided with such power by Parliament.

The court then had expressed its view that MyCC was not a person who is adversely affected by CAT's decision.

The Court of Appeal had also then allowed a preliminary objection by MAS and AirAsia that MyCC had no legal standing in the first place to file the judicial review against CAT's decision.

During today's online Federal Court proceedings, MyCC was represented by lawyers Gopal Sri Ram, Lim Chee Wee and Kwan Will Sen, while counsel Ambiga Sreenevasan and Logan Sabapathy appeared for both air carriers. 

Federal Court denies MyEG appeal to quash RM9.3m fine

Meanwhile, during separate zoom proceedings today, the same Federal Court bench also dismissed MyEG's application for leave to appeal to set aside a RM9.337 million fine over abuse of its dominant position in the market.

In a unanimous decision, Rohana ruled that applicant My EG Services Bhd and MYEG Commerce Sdn Bhd (collectively referred to as MyEG) failed to meet the threshold for leave under Section 96 of the Courts of Judicature Act.

The IT service management company is appealing to quash a previous Court of Appeal decision, which upheld a Kuala Lumpur High Court dismissal of its judicial review against MyCC's decision.

On Jan 24, 2019, the High Court upheld MyCC's decision against MyEG under section 10(2)(d)(iii) of the Competition Act for abusing its dominant position.

According to a media statement by the competition regulator, the High Court agreed with CAT's findings, which reaffirmed MyCC’s decision that MyEG had abused its position by imposing different conditions in equivalent transactions in the purchase of mandatory insurance for the renewal of the temporary work passes (PLKS) for foreign workers.

“Consequently, MyEG was ordered to pay a penalty of RM9.337 million in total for such infringement, which includes a penalty of RM307,200 and daily penalties from Oct 7, 2015 to Jan 22 this year amounting to RM9.030 million.

“MyEG is still liable for a daily penalty of RM7,500 per day until they comply with the directives imposed by MyCC in its decision,” MyCC said.

MyEG provides various online services such as for the renewal of road tax and vehicle insurance. - Mkini