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MyCC CEO Iskandar Ismail

KUALA LUMPUR: The Malaysia Competition Commission (MyCC) is analysing and weighing its options, including filing a judicial review, over the recent decision by the Competition Appeal Tribunal (CAT) on allegations of price-fixing by Persatuan Insurans Am Malaysia (PIAM) and the Federation of Automobile Workshops Owners’ Association of Malaysia.

MyCC said it would like to emphasise that the CAT held that MyCC, by its nature and function as a quasi-judicial body, is empowered to interpret a provision of law whether it is relevant or otherwise.

"The mere fact that the outcome of the interpretation of the law affects another regulator’s power could not preclude MyCC from exercising its duties," said MyCC.

According to MyCC, the CAT ruled that the letters issued by Bank Negara, which were relied heavily by PIAM and the insurers cannot be construed as a directive.

It added that the CAT is of the considered view that the impugned letters which Bank Negara alluded to be a direction or directive fall short of precise language to amount to a direction or directive.

"It was further held that in all impugned letters before the CAT, Bank Negara did not state in clear terms that it was directing PIAM and the insurers to enter into the infringing agreement.

"Consistent with MyCC’s findings in its final decision, the CAT ruled that the letters are merely letters urging the parties to resolve the commercial dispute, expedite negotiation and reach an agreement on the issues raised," it added.

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MyCC noted that the CAT had taken into consideration the timing of Bank Negara's mention of its position that the said impugned letters were a direction or directive.

It said the CAT was of the view that if Bank Negara had indeed issued a direction in 2011, it would have stated so in 2015, at the earliest possible opportunity when investigations by MyCC commenced.

On the contrary, Bank Negara only mentioned that the said letters were a direction or directive just around a month before MyCC issued its proposed decision in 2017.

"On this basis, the CAT dismissed Bank Negara’s appeal," said MyCC.

The commission added that it is currently considering its options on other aspects of the decision, which includes filing a judicial review.

"This is because the decision by the CAT may create ambiguity on how the law in relation to anti-competitive agreements made through associations is interpreted.

"Concurrently, MyCC will continue to strive to execute its mandate efficiently and effectively with a commitment to ensure competition culture remains conducive and markets work well for consumers, businesses, and the economy," said MyCC CEO Iskandar Ismail.

On Sept 14, 2020, MyCC announced its decision that PIAM and 22 general insurers had infringed section four of the Competition Act 2010.

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