COMPETITION ACT 2010

Competition LAWS OF MALAYSIA REPRINT Act 712 COMPETITION ACT 2010 As at 1 November 2024 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 2024 1 2 Act 712 Laws of Malaysia COMPETITION ACT 2010 Date of Royal Assent … … … 2 June 2010 Date of publication in the Gazette … … … 10 June 2010 Latest amendment made by P.U. (A) 44/2016 which came into operation on … … … 1 March 2016 Competition LAWS OF MALAYSIA Act 712 COMPETITION ACT 2010 ARRANGEMENT OF SECTIONS Part I PRELIMINARY Section 1. Short title and commencement 2. Interpretation 3. Application Part II ANTI-COMPETITIVE PRACTICES Chapter 1 Anti-competitive agreement 4. Prohibited horizontal and vertical agreement 5. Relief of liability 6. Individual exemption 7. Cancellation or variation of individual exemption 8. Block exemption 9. Procedure for block exemption Chapter 2 Abuse of dominant position 10. Abuse of dominant position is prohibited 3 4 Laws of Malaysia Act 712 Chapter 3 Market review Section 11. Power to conduct market review 12. Determination of market review Chapter 4 Exclusion 13. Exclusion Part III INVESTIGATION AND ENFORCEMENT 14. Investigation by the Commission 15. Complaint to the Commission 16. Close of an investigation 17. Power of investigation 18. Power to require provision of information 19. Commission may retain document 20. Access to records, etc. 21. Confidentiality 22. Privileged communication 23. Giving false or misleading information, evidence or document 24. Destruction, concealment, mutilation and alteration of records, etc. 25. Search and seizure with warrant 26. Search and seizure without warrant 27. Access to computerized data 28. Warrant admissible notwithstanding defect 29. List of record, book, account, etc., seized 30. Release of record, book, account, etc., seized 31. No cost or damages arising from seizure to be recoverable 32. Obstruction Competition Section 33. Tipping off 34. Threat and reprisal is prohibited Part IV DECISION BY THE COMMISSION 35. Interim measures 36. Proposed decision by the Commission 37. Oral representation 38. Conduct of hearings 39. Finding of non-infringement 40. Finding of an infringement 41. Leniency regime 42. Enforcement of direction or decision 43. Power to accept undertaking Part V COMPETITION APPEAL TRIBUNAL 44. Establishment of the Competition Appeal Tribunal 45. Constitution of the Competition Appeal Tribunal 46. Allowances 47. Resignation and revocation of appointment 48. Vacation of office and new or temporary appointment 49. Disclosure of interest 50. Secretary to the Competition Appeal Tribunal and other officers 51. Appeal to the Competition Appeal Tribunal 52. Record of decision of the Commission 53. Stay of decision pending appeal 54. Composition of the Competition Appeal Tribunal 55. Sitting of the Competition Appeal Tribunal 56. Procedure of the Competition Appeal Tribunal 57. Powers of the Competition Appeal Tribunal 58. Decision of the Competition Appeal Tribunal 5 6 Laws of Malaysia Act 712 Section 59. Enforcement of decision of the Competition Appeal Tribunal 60. Protection against suit and legal proceedings Part VI GENERAL 61. General penalty 62. Compounding of offences 63. Offences by body corporate 64. Rights of private action 65. Power to make regulations 66. Power to issue guidelines 67. Public Authorities Protection Act 1948 First Schedule Second Schedule Competition 7 LAWS OF MALAYSIA Act 712 COMPETITION ACT 2010 An Act to promote economic development by promoting and protecting the process of competition, thereby protecting the interests of consumers and to provide for matters connected therewith. [1 January 2012, P.U. (B) 410/2010] W hereas the process of competition encourages efficiency, innovation and entrepreneurship, which promotes competitive prices, improvement in the quality of products and services and wider choices for consumers: And whereas in order to achieve these benefits, it is the purpose of this legislation to prohibit anti-competitive conduct: N O W, T H E R E F O R E , I T I S E N A C T E D b y t h e Parliament of Malaysia as follows: Part I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Competition Act 2010. 8 Laws of Malaysia Act 712 (2) T h i s A c t c o m e s i n t o o p e r a t i o n o n a d a t e t o be appointed by the Minister by notification in the Gazette. Interpretation 2. In this Act, unless the context otherwise requires— “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; “Chairman” means the Chairman of the Commission appointed under the Competition Commission Act 2010 [Act 713]; “Commission” means the Competition Commission established under the Competition Commission Act 2010; “Commission officer” has the same meaning assigned to it in the Competition Commission Act 2010; “concerted practice” means any form of coordination between enterprises which knowingly substitutes practical co-operation between them for the risks of competition and includes any practice which involves direct or indirect contact or communication between enterprises, the object or effect of which is either— (a) to influence the conduct of one or more enterprises in a market; or (b) to disclose the course of conduct which an enterprise has decided to adopt or is contemplating to adopt in a market, in circumstances where such disclosure would not have been made under normal conditions of competition; “consumer” means any direct or indirect user of goods or services supplied by an enterprise in the course of business, and includes another enterprise that uses the goods or services thus supplied as an input to its own business as well as a wholesaler, a retailer and a final consumer; Competition 9 “direction” means a direction given by the Commission under Part III or Part IV of this Act; “document” has the same meaning assigned to it in the Evidence Act 1950 [Act 56]; “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; “enterprise” means any entity carrying on commercial activities relating to goods or services, and for the purposes of this Act, a parent and subsidiary company shall be regarded as a single enterprise if, despite their separate legal entity, both form a single economic unit within which the subsidiaries do not enjoy real autonomy in determining their actions on the market; “goods” means property of every kind, whether tangible or intangible and includes— (a) all kinds of movable property; (b) buildings and other structures; (c) vessels and vehicles; (d) utilities; (e) minerals, trees and crops, whether on, under or attached to land or not; (f) animals, including fish; and (g) choses-in-action; “horizontal agreement” means an agreement between enterprises each of which operates at the same level in the production or distribution chain; “infringement” means an infringement of any prohibition under this Act; 10 Laws of Malaysia Act 712 “market” means a market in Malaysia or in any part of Malaysia, and when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services; “Minister” means the Minister charged with the responsibility for domestic trade and consumer affairs; “price” includes any form of consideration given in return for any goods or services of any kind, whether such consideration has actually been given or is advertised or stated as being required to be given in exchange for such goods or services; “prohibition” means any prohibition under this Act; “publish”, where no mode is specified, means to publish in any form or manner as may be determined by the Commission; “supply” includes— (a) in relation to goods, the supply and resupply, by way of sale, exchange, lease, hire or hire-purchase of the goods; and (b) in relation to services, the provision by way of sale, grant or conferment of the services; “this Act” includes any subsidiary legislation made under this Act; “vertical agreement” means an agreement between enterprises each of which operates at a different level in the production or distribution chain. Application 3. (1) This Act applies to any commercial activity, both within and subject to subsection (2), outside Malaysia. (2) In relation to the application of this Act outside Malaysia, this Act applies to any commercial activity transacted outside Malaysia which has an effect on competition in any market in Malaysia. Competition 11 (3) This Act shall not apply to any commercial activity regulated under the legislation specified in the First Schedule and the Minister may, by order published in the Gazette, amend the First Schedule. (4) For the purposes of this Act, “commercial activity” means any activity of a commercial nature but does not include— (a) any activity, directly or indirectly in the exercise of governmental authority; (b) any activity conducted based on the principle of solidarity; and (c) any purchase of goods or services not for the purposes of offering goods and services as part of an economic activity. Part II ANTI-COMPETITIVE PRACTICES Chapter 1 Anti-competitive agreement Prohibited horizontal and vertical agreement 4. (1) A horizontal or vertical agreement between enterprises is prohibited insofar as the agreement has the object or effect of significantly preventing, restricting or distorting competition in any market for goods or services. (2) Without prejudice to the generality of subsection (1), a horizontal agreement between enterprises which has the object to— (a) fix, directly or indirectly, a purchase or selling price or any other trading conditions; 12 Laws of Malaysia Act 712 (b) share market or sources of supply; (c) limit or control— (i) production; (ii) market outlets or market access; (iii) technical or technological development; or (iv) investment; or (d) perform an act of bid rigging, is deemed to have the object of significantly preventing, restricting, or distorting competition in any market for goods or services. (3) Any enterprise which is a party to an agreement which is prohibited under this section shall be liable for infringement of the prohibition. Relief of liability 5. Notwithstanding section 4, an enterprise which is a party to an agreement may relieve its liability for the infringement of the prohibition under section 4 based on the following reasons: (a) there are significant identifiable technological, efficiency or social benefits directly arising from the agreement; (b) the benefits could not reasonably have been provided by the parties to the agreement without the agreement having the effect of preventing, restricting or distorting competition; (c) the detrimental effect of the agreement on competition is proportionate to the benefits provided; and (d) the agreement does not allow the enterprise concerned to eliminate competition completely in respect of a substantial part of the goods or services. Competition 13 Individual exemption 6. (1) An enterprise may apply to the Commission for an exemption with respect to a particular agreement from the prohibition under section 4. (2) The Commission may, by order published in the Gazette, grant the exemption if, in the opinion of the Commission, the agreement is one to which section 5 applies. (3) An exemption granted under this section is referred to as an “individual exemption”. (4) The individual exemption granted by the Commissi