Tuesday 10 July 2012

Competition Act of Malaysia


COMPETITION ACT 2010
2 Laws of Malaysia ACT 712
Date of Royal Assent ... ... 2 June 2010
Date of publication in the
Gazette ... ... ... 10 June 2010
Publisher’s Copyright C
PERCETAKAN NASIONAL MALAYSIA BERHAD
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means
electronic, mechanical, photocopying, recording and/or otherwise without the prior permission of Percetakan Nasional Malaysia Berhad
(Appointed Printer to the Government of Malaysia).
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ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Clause
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
LAWS OF MALAYSIA
Act 712
COMPETITION ACT 2010
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
33. Tipping off
34. Threat and reprisal is prohibited
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PART IV
DECISION BY THE COMMISSION
Section
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
59. Enforcement of decision of the Competition Appeal Tribunal
60. Protection against suit and legal proceedings
6 Laws of Malaysia ACT 712
PART VI
GENERAL
Section
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
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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.
[ ]
WHEREAS 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:
NOW, THEREFORE, IT IS ENACTED by the Parliament of
Malaysia as follows:
PART I
PRELIMINARY
Short title and commencement
1. (1) This Act may be cited as the Competition Act 2010.
(2) This Act comes into operation on a date to be appointed
by the Minister by notification in the Gazette.
LAWS OF MALAYSIA
Act 712
COMPETITION ACT 2010
8 Laws of Malaysia ACT 712
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;
“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];
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“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, they 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;
“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;
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“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.
(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.
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(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;
(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,
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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.
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”.
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(4) The individual exemption granted by the Commission may
be—
(a) subject to any condition or obligation as the Commission
considers it appropriate to impose; and
(b) for a limited duration as specified in the order.
(5) An individual exemption may provide for it to have effect
from a date earlier than that on which the order is made.
Cancellation or variation of individual exemption
7. (1) If the Commission is satisfied that—
(a) there has been a material change of circumstance since
it granted an individual exemption; or
(b) an obligation has been breached,
the Commission may, by order published in the Gazette—
(i) cancel the individual exemption;
(ii) vary or remove any condition or obligation; or
(iii) impose additional condition or obligation.
(2) If the Commission is satisfied that—
(a) the information on which the Commission based its
decision to grant an individual exemption is false or
misleading in a material particular; or
(b) any condition has been breached,
the Commission may, by order published in the Gazette, cancel
the individual exemption.
(3) Any action taken by the Commission under subsection (1)
shall have effect from the date the order is made.
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(4) An individual exemption which is cancelled—
(a) by virtue of paragraph (2)(a) shall be void ab initio; or
(b) by virtue of paragraph (2)(b) shall have effect from the
date the condition is breached.
Block exemption
8. (1) If agreements which fall within a particular category of
agreements are, in the opinion of the Commission, likely to be
agreements to which section 5 applies, the Commission may,
by order published in the Gazette, grant an exemption to the
particular category of agreements.
(2) An exemption granted under this section is referred to as
a “block exemption”.
(3) An agreement which falls within a category specified
in a block exemption is exempt from the prohibition under
section 4.
(4) The Commission in granting the block exemption may
impose any condition or obligation subject to which a block
exemption shall have effect.
(5) A block exemption may provide that—
(a) if there is a breach of a condition imposed by the block
exemption, the Commission may, by notice in writing,
cancel the block exemption in respect of the agreement
from the date of the breach;
(b) if there is a failure to comply with an obligation imposed
by the block exemption, the Commission may, by notice
in writing, cancel the block exemption in respect of the
agreement;
(c) if the Commission considers that a particular agreement
is not one to which section 5 applies, the Commission
may, by notice in writing, cancel the block exemption
in respect of the agreement from such date as the
Commission may specify;
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(d) the block exemption shall cease to have effect at the end
of a period specified in the order; or
(e) the block exemption is to have effect from a date earlier
than that on which the order is made.
Procedure for block exemption
9. The Commission shall, before granting a block exemption—
(a) publish details of the Commission’s proposed block
exemption;
(b) give at least thirty days from the date of publication to
allow any submission to be made by members of the
public in relation to the proposed block exemption;
and
(c) give due consideration to any submission made.
Chapter 2
Abuse of dominant position
Abuse of dominant position is prohibited
10. (1) An enterprise is prohibited from engaging, whether
independently or collectively, in any conduct which amounts
to an abuse of a dominant position in any market for goods or
services.
(2) Without prejudice to the generality of subsection (1), an
abuse of a dominant position may include—
(a) directly or indirectly imposing unfair purchase or selling
price or other unfair trading condition on any supplier
or customer;
(b) limiting or controlling—
(i) production;
(ii) market outlets or market access;
16 Laws of Malaysia ACT 712
(iii) technical or technological development; or
(iv) investment,
to the prejudice of consumers;
(c) refusing to supply to a particular enterprise or group or
category of enterprises;
(d) applying different conditions to equivalent transactions
with other trading parties to an extent that may—
(i) discourage new market entry or expansion or
investment by an existing competitor;
(ii) force from the market or otherwise seriously damage
an existing competitor which is no less efficient
than the enterprise in a dominant position; or
(iii) harm competition in any market in which the dominant
enterprise is participating or in any upstream or
downstream market;
(e) making the conclusion of contract subject to acceptance
by other parties of supplementary conditions which by
their nature or according to commercial usage have no
connection with the subject matter of the contract;
(f) any predatory behaviour towards competitors; or
(g) buying up a scarce supply of intermediate goods or
resources required by a competitor, in circumstances
where the enterprise in a dominant position does not
have a reasonable commercial justification for buying
up the intermediate goods or resources to meet its own
needs.
(3) This section does not prohibit an enterprise in a dominant
position from taking any step which has reasonable commercial
justification or represents a reasonable commercial response to
the market entry or market conduct of a competitor.
(4) The fact that the market share of any enterprise is above
or below any particular level shall not in itself be regarded as
conclusive as to whether that enterprise occupies, or does not
occupy, a dominant position in that market.
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Chapter 3
Market review
Power to conduct market review
11. (1) The Commission may, on its own initiative or upon the
request of the Minister, conduct a review into any market in order
to determine whether any feature or combination of features of the
market prevents, restricts or distorts competition in the market.
(2) The market review includes a study into—
(a) the structure of the market concerned;
(b) the conduct of enterprises in the market;
(c) the conduct of suppliers and consumers to the enterprises
in the market; or
(d) any other relevant matters.
Determination of market review
12. (1) Upon conclusion of the market review, the Commission
shall publish a report of its findings and recommendations.
(2) The report of the Commission shall be made available to
the public.
Chapter 4
Exclusion
Exclusion
13. (1) The prohibitions under Part II shall not apply to the
matters specified in the Second Schedule.
(2) The Minister may, by order published in the Gazette, amend
the Second Schedule.
18 Laws of Malaysia ACT 712
(3) The Minister shall, before making an amendment to the
Second Schedule—
(a) publish a notice of his intention to make the amendment
and the proposed amendment;
(b) give at least thirty days from the date of the notice to
allow any submission to be made by members of the
public in relation to the proposed amendment; and
(c) give due consideration to any submission made.
PART III
INVESTIGATION AND ENFORCEMENT
Investigation by the Commission
14. (1) The Commission may conduct any investigation as the
Commission thinks expedient where the Commission has reason
to suspect that any enterprise has infringed or is infringing any
prohibition under this Act or any person has committed or is
committing any offence under this Act.
(2) The Commission shall, on the direction of the Minister,
investigate any suspected infringement of any of the prohibition
or commission of an offence under this Act.
Complaint to the Commission
15. (1) The Commission may, upon a complaint by a person,
conduct an investigation on any enterprise, agreement or conduct
that has infringed or is infringing any prohibition under this Act
or against any person who has committed or is committing any
offence under this Act.
(2) The complaint shall specify the person against whom the
complaint is made and details of the alleged infringement or
offence under this Act.
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Close of an investigation
16. (1) If a complaint has been made to the Commission under
section 15 in relation to an infringement, the Commission may
make inquiries on the complainant for the purpose of deciding
whether the Commission should, in its discretion, investigate the
matter.
(2) If the Commission, after such inquiries mentioned in
subsection (1), decides not to investigate such complaint, it shall as
soon as practicable and in such manner as it thinks fi t, inform the
complainant of the decision and the reasons for the decision.
(3) Notwithstanding subsections (1) and (2), the Commission
may, after deciding to investigate the complaints under section 15,
at any time, decide to close an investigation of an infringement
under this Act, if the Commission is of the opinion that—
(a) it would be inappropriate to continue the investigation
in view of the provision of an undertaking pursuant to
section 43; or
(b) in all the circumstances the continuation of the investigation
would not constitute the making of the best use of the
Commission’s resources.
(4) When deciding to close an investigation, the Commission
shall publish a statement that the investigation has been closed,
and set out a brief summary of the Commission’s reasons for
closing that investigation.
Power of investigation
17. (1) A Commission officer shall have all the powers of
investigation and enforcement under this Act.
(2) For the avoidance of doubt, it is declared that for the
purposes of this Act, the Commission officer investigating any
commission of an offence under this Act shall have all or any of
the powers of a police officer in relation to police investigation
in seizable cases as provided for under the Criminal Procedure
Code [Act 593].
20 Laws of Malaysia ACT 712
Power to require provision of information
18. (1) The Commission may, by notice in writing, require any
person whom the Commission believes to be acquainted with the
facts and circumstances of the case—
(a) to provide or produce to the Commission, within the period
and in the manner specified in the notice, any information
or document which is relevant to the performance of the
Commission’s powers and functions; or
(b) to make a statement to the Commission providing an
explanation on any information or document referred to
in paragraph (a) within the period and in the manner
specified in the notice.
(2) Where the Commission directs any person to produce any
document under subsection (1) and the person is not in custody
of the document, the person shall—
(a) state, to the best of his knowledge and belief, where the
document may be found; and
(b) identify, to the best of his knowledge and belief, the
last person who had custody of the document and to
state, to the best of his knowledge and belief, where
the last-mentioned person may be found.
(3) Any person required or directed to provide information under
subsection (1) or (2) shall ensure that the information provided
is true, accurate and complete and such person shall provide an
express representation to that effect, including a declaration that
he is not aware of any other information which would make the
information provided untrue or misleading.
Commission may retain document
19. (1) The Commission may take and retain for such duration
as it deems necessary, possession of any document obtained under
this Part.
(2) The person who provided the document is entitled to be
supplied, as soon as practicable, with a copy certified by the
Commission to be a true copy of the document.
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(3) Notwithstanding the provisions of any other written law, the
certified copy of the document shall be admissible as evidence
as if it were the original document.
(4) If the Commission is satisfied that the retaining of the
document is no longer necessary, the Commission may, as soon
as practicable, return the document to the person who provided
the document.
Access to records, etc.
20. (1) A person shall, if at any time directed by the Commission,
allow the Commission access to his records, books, accounts,
or other things for the purposes of carrying out any of the
Commission’s functions or powers under this Act.
(2) Any person who fails to comply with the direction under
subsection (1) commits an offence.
Confidentiality
21. (1) Any person who discloses or makes use of any confidential
information with respect to a particular enterprise or the affairs
of an individual obtained by virtue of any provision of this Act
commits an offence.
(2) Nothing in subsection (1) shall operate to prevent the
disclosure of information where—
(a) the disclosure is made with the consent of the person
from whom the information was obtained;
(b) the disclosure is necessary for the performance of the
functions or powers of the Commission;
(c) the disclosure is reasonably made during any proceedings
under this Act provided that such disclosure is not
made against any direction by the Commission or the
Competition Appeal Tribunal before which the proceedings
are taking place;
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(d) the disclosure is made in connection with an investigation
of an infringement or an offence under this Act; or
(e) the disclosure is made with the authorization of the
Commission to any competition authority of another
country in connection with a request by that country’s
competition authority for assistance.
(3) For the purposes of this section, “confidential information”
means trade, business or industrial information that belongs to any
person, that has economic value and is not generally available to
or known by others.
Privileged communication
22. (1) No person shall be required, under any provision of
this Part, to produce or disclose any communication between a
professional legal adviser and his client which would be protected
from disclosure in accordance with section 126 of the Evidence
Act 1950.
(2) Where—
(a) the Commission makes a requirement under section 18 of
an advocate and solicitor in respect of any information
or document; and
(b) the information or document contains a privileged
communication made by or on behalf of or to the
advocate and solicitor in his capacity as an advocate
and solicitor,
the advocate and solicitor is entitled to refuse to comply with
the requirement unless the person to whom or by or on behalf of
whom the communication was made or, if the person is a body
corporate that is under receivership or is in the course of being
wound up, the receiver or the liquidator, as the case may be, agrees
to the advocate and solicitor complying with the requirement, but
where the advocate and solicitor so refuses to comply with the
requirement, the advocate and solicitor shall forthwith furnish in
writing to the Commission the name and address of the person
to whom or by whom the communication was made.
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Giving false or misleading information, evidence or
document
23. A person who fails to disclose or omits to give any relevant
information or evidence or document, or provides any information,
evidence or document that he knows or has reason to believe
is false or misleading, in response to a direction issued by the
Commission, commits an offence.
Destruction, concealment, mutilation or alteration of records,
etc.
24. A person who—
(a) destroys, conceals, mutilates or alters; or
(b) sends or attempts to send or conspires with any other
person to remove from its premises or send out of
Malaysia,
any record, book, account, document, computerized data or other
thing kept or maintained with intent to defraud the Commission or
to prevent, delay or obstruct the carrying out of an investigation
or the exercise of any power by the Commission under this Act
commits an offence.
Search and seizure with warrant
25. (1) If it appears to a Magistrate, upon written information
on oath from the Commission officer and after such inquiry as
the Magistrate considers necessary, that there is reasonable cause
to believe that—
(a) any premises has been used for; or
(b) there is in any premises evidence necessary to the conduct
of an investigation into,
the infringement of any prohibition or the commission of an offence
under this Act, the Magistrate may issue a warrant authorizing
the Commission officer named in the warrant at any reasonable
time by day or night and with or without assistance, to enter the
premises and if need be by force.
24 Laws of Malaysia ACT 712
(2) Without affecting the generality of subsection (1), the
warrant issued by the Magistrate may authorize the search and
seizure of any record, book, account, document, computerized
data or other thing which contains or is reasonably suspected to
contain information as to any infringement or offence suspected
to have been committed.
(3) A Commission officer conducting a search under subsection (1)
may, for the purpose of investigating into the infringement or
offence, search any person who is in or on the premises.
(4) A Commission officer making a search of a person under
subsection (3) may seize or take possession of, and place in safe
custody all things other than the necessary clothing found upon the
person, and any of those things which there is reason to believe
were the instruments or other evidence of the infringement or
offence may be detained until the discharge or acquittal of the
person.
(5) Whenever it is necessary to cause a woman to be searched,
the search shall be made by another woman with strict regard to
decency.
(6) If, by reason of its nature, size or amount, it is not practicable
to remove any record, book, account, document, computerized data
or other thing seized under this section, the Commission officer
shall by any means seal such record, book, account, document,
computerized data or other thing in the premises or container in
which it is found.
(7) A person who, without lawful authority, breaks, tampers
with or damages the seal referred to in subsection (6) or removes
any record, book, account, document, computerized data or other
thing under seal or attempts to do so commits an offence.
Search and seizure without warrant
26. If a Commission officer is satisfied upon information received
that he has reasonable cause to believe that by reason of delay
in obtaining a search warrant under section 25 the investigation
would be adversely affected or evidence of the commission of an
infringement or offence is likely to be tampered with, removed,
Competition 25
damaged or destroyed, the Commission officer may enter the
premises and exercise in, upon and in respect of the premises
all the powers referred to in section 25 in as full and ample a
manner as if he were authorized to do so by a warrant issued
under that section.
Access to computerized data
27. (1) Any Commission officer conducting a search under this
Act shall be given access to computerized data whether stored
in a computer or otherwise.
(2) For the purpose of this section, the Commission officer
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.
Warrant admissible notwithstanding defect
28. A search warrant issued under this Act shall be valid and
enforceable notwithstanding any defect, mistake or omission
therein or in the application for such warrant and any record, book,
account, document, computerized data or other thing seized under
such warrant shall be admissible in evidence in any proceedings
under this Act.
List of record, book, account, etc., seized
29. (1) Except as provided in subsection (2), where any record,
book, account, document, computerized data or other thing is
seized pursuant to this Act, the Commission officer making the
seizure—
(a) shall prepare—
(i) a list of the record, book, account, document,
computerized data or other thing seized and shall
sign the list; and
(ii) a written notice of the seizure containing the grounds
for the seizure and shall sign the notice; and
26 Laws of Malaysia ACT 712
(b) shall, as soon as practicable, serve a copy of the list
of the record, book, account, document, computerized
data or other thing seized and the written notice of the
seizure to the occupier of the premises which have been
searched, or to his agent or servant at those premises.
(2) The written notice of the seizure shall not be required to be
served pursuant to paragraph (1)(b) where the seizure is made in
the presence of the person against whom proceedings under this
Act are intended to be taken, or in the presence of the owner of
such property or his agent, as the case may be.
(3) If the premises are unoccupied, the Commission officer shall
post a copy of the list of the record, book, account, document,
computerized data or other thing seized conspicuously on the
premises.
Release of record, book, account, etc., seized
30. If any record, book, account, document, computerized data
or other thing has been seized under this Act, the Commission
officer who effected the seizure may release the record, book,
account, document, computerized data or other thing to the person
he determines to be lawfully entitled to it, if the record, book,
account, document, computerized data or other thing is not otherwise
required for the purpose of any proceedings under this Act or for
the purpose of any prosecution under any other written law, and
in such event neither the Commission officer effecting the seizure,
nor the Federal Government, the Commission or any person acting
on behalf of the Federal Government or the Commission shall
be liable to any proceedings by any person if the seizure and
the release of the record, book, account, document, computerized
data or other thing had been effected in good faith.
No cost or damages arising from seizure to be recoverable
31. No person shall, in any proceedings before any court in
respect of any record, book, account, document, computerized data
or other thing seized in the exercise or the purported exercise of
any power conferred under this Act, be entitled to the costs of
such proceedings or to any damages or other relief unless such
seizure was made without reasonable cause.
Competition 27
Obstruction
32. Any person who—
(a) refuses any Commission officer access to any premises
which the Commission officer is entitled to have under
this Act or in the execution of any duty imposed or
power conferred by this Act; or
(b) assaults, obstructs, hinders or delays any Commission
officer in effecting any entry which the Commission
officer is entitled to effect under this Act or in the
execution of any duty imposed or power conferred by
this Act,
commits an offence.
Tipping off
33. (1) Any person who—
(a) knows or has reasonable grounds to suspect that a
Commission officer is acting, or is proposing to act,
in connection with an investigation which is being, or
is about to be, conducted under or for the purposes of
this Act and discloses to any other person information
or any other matter which is likely to prejudice that
investigation or proposed investigation; or
(b) knows or has reasonable grounds to suspect that a
disclosure has been made to a Commission officer under
this Act and discloses to any other person information
or any other matter which is likely to prejudice any
investigation which might be conducted following the
disclosure,
commits an offence.
(2) Nothing in subsection (1) makes it an offence for an advocate
and solicitor or his employee to disclose any information or other
matter—
(a) to his client or the client's representative in connection
with the giving of advice to the client in the course and
for the purpose of the professional employment of the
advocate and solicitor; or
28 Laws of Malaysia ACT 712
(b) to any person in contemplation of, or in connection with
and for the purpose of, any legal proceedings.
(3) Subsection (2) does not apply in relation to any information
or other matter which is disclosed with a view to furthering any
illegal purpose.
(4) In proceedings against a person for an offence under this
section, it is a defence to prove that—
(a) he did not know or suspect that the disclosure made under
paragraph (1)(b) was likely to prejudice the investigation;
or
(b) he had lawful authority or reasonable excuse for making
the disclosure.
Threat and reprisal is prohibited
34. (1) No person shall—
(a) coerce or attempt to coerce any person to refrain from
doing any act referred to in subsection (3); or
(b) subject any person to any commercial or other disadvantage
as a reprisal against the person for doing any act referred
to in subsection (3).
(2) For the purposes of and without prejudice to the generality
of paragraph (1)(b), the commercial or other disadvantage may
include a threat of late payment of amounts properly due to the
person, the unreasonable bringing or conduct of litigation against
the person, the cancellation of orders with the person, or the
diversion of business from, or refusal to trade with, the person.
(3) The acts referred to in subsection (1) are as follows:
(a) making a complaint to the Commission under section 15;
and
(b) co-operating with, or offering or agreeing to co-operate
with, the Commission in connection with any investigation
by the Commission.
(4) Any person who contravenes this section commits an
offence.
Competition 29
PART IV
DECISION BY THE COMMISSION
Interim measures
35. (1) This section applies if the Commission has commenced
but not completed an investigation under section 14.
(2) If the Commission has reasonable grounds to believe that
any prohibition under this Act has been infringed or is likely to
be infringed and the Commission considers that it is necessary
for it to act under this section as a matter of urgency for the
purpose of—
(a) preventing serious and irreparable damage, economic or
otherwise, to a particular person or category of persons;
or
(b) protecting the public interest,
it may give such direction as it considers to be appropriate and
proportionate for that purpose.
(3) A direction given under subsection (2) may include requiring
or causing any person—
(a) to suspend the effect of, and desist from acting in
accordance with, any agreement which is suspected of
infringing any prohibition under Part II;
(b) to desist from any conduct which is suspected of infringing
any prohibition under Part II; or
(c) to do, or refrain from doing, any act, but which shall not
require the payment of money.
(4) The Commission shall, before giving a direction under
subsection (2)—
(a) serve a written notice to the person to whom it proposes
to give the direction; and
(b) give that person an opportunity to make written
representations within a period of at least seven days
from the date of the written notice.
30 Laws of Malaysia ACT 712
(5) A notice under subsection (4) shall indicate the nature of
the direction which the Commission proposes to give and its
reasons for giving the direction.
(6) The Commission may at any time withdraw a direction
given under subsection (2).
(7) Without prejudice to subsection (6), any direction given
under subsection (2) shall cease to have effect —
(a) on the date of the decision by the Commission upon
completion of the investigation under section 14; or
(b) twelve months from the date the direction was given,
whichever is earlier.
Proposed decision by the Commission
36. (1) If, after the completion of the investigation, the
Commission proposes to make a decision to the effect that one of
the prohibitions under Part II has been or is being infringed, the
Commission shall give written notice of its proposed decision to
each enterprise that may be directly affected by the decision.
(2) The notice shall—
(a) set out the reasons for the Commission’s proposed decision
in sufficient detail to enable the enterprise to whom the
notice is given to have a genuine and sufficient prospect
of being able to comment on the proposed decision on
an informed basis;
(b) set out any penalties or remedial action that the Commission
proposes to apply; and
(c) inform each enterprise to whom the notice is given that
the enterprise may, within such reasonable period as
may be specified in the notice—
(i) submit written representations to the Commission;
and
(ii) indicate whether it wishes to make an oral representation
before the Commission.
Competition 31
Oral representation
37. If an enterprise informs the Commission, within the period
specified in the notice given under section 36 that it wishes to
make an oral representation, the Commission shall, before taking
any relevant decision—
(a) convene a session for the oral representation to be held at
a date, time and place determined by the Commission;
and
(b) give written notice of the date, time and place to—
(i) the enterprise concerned;
(ii) any person who had lodged a complaint with the
Commission concerning the practice that was the
subject of the Commission’s investigation; and
(iii) any other person whose presence at the session of
the oral representation is considered necessary by
the Commission.
Conduct of hearings
38. (1) Notwithstanding section 37, the Commission may at any
time conduct a hearing for the purpose of determining whether
an enterprise has infringed or is infringing any prohibition under
Part II.
(2) If the Commission determines that a hearing is to be held, it
shall give at least fourteen days notice in writing to the enterprise
concerned and to other interested third parties—
(a) recording its decision to convene the hearing;
(b) specifying the date, time and place for the holding of the
hearing; and
(c) stipulating the matters to be considered at the hearing.
(3) When the Commission decides to hold a hearing, it shall
also decide—
(a) whether to hold individual hearings with each of the
enterprises and any other interested third parties separately
or to hold a single hearing attended by all the enterprises
involved and the interested third parties; and
32 Laws of Malaysia ACT 712
(b) whether to hold a hearing—
(i) in public; or
(ii) in a closed session, for the purpose of protecting
confidential information.
(4) The hearing shall be governed by and conducted in
accordance with the procedural rules for the time being in effect,
as published by the Commission.
(5) The Commission shall keep a record of the hearing as is
sufficient to set out the matters raised by any person participating
in the hearing.
(6) An enterprise may be represented at a hearing by—
(a) any of its authorized officers or employees;
(b) any advocate and solicitor;
(c) any person falling within the description specified for
that purpose in the Commission’s procedural rules; or
(d) any other person, with the consent of the Chairman.
Finding of non-infringement
39. Where the Commission has made a decision that there is
no infringement of a prohibition under Part II, the Commission
shall, without delay, give notice of the decision to any person
who is affected by the decision stating the facts on which the
Commission bases the decision and the Commission’s reason for
making the decision.
Finding of an infringement
40. (1) If the Commission determines that there is an infringement
of a prohibition under Part II, it—
(a) shall require that the infringement to be ceased
immediately;
(b) may specify steps which are required to be taken by the
infringing enterprise, which appear to the Commission
to be appropriate for bringing the infringement to an
end;
Competition 33
(c) may impose a financial penalty; or
(d) may give any other direction as it deems appropriate.
(2) The Commission shall, within fourteen days of its making
a decision under this Part, notify any person affected by the
decision.
(3) The Commission shall prepare and publish reasons for each
decision it makes under this section.
(4) A financial penalty shall not exceed ten percent of the
worldwide turnover of an enterprise over the period during which
an infringement occurred.
Leniency regime
41. (1) There shall be a leniency regime, with a reduction of
up to a maximum of one hundred percent of any penalties which
would otherwise have been imposed, which may be available in
the cases of any enterprise which has—
(a) admitted its involvement in an infringement of any
prohibition under subsection 4(2); and
(b) provided information or other form of co-operation to the
Commission which significantly assisted, or is likely to
significantly assist, in the identification or investigation
of any finding of an infringement of any prohibition by
any other enterprises.
(2) A leniency regime may permit different percentages of
reductions to be available to an enterprise depending on—
(a) whether the enterprise was the first person to bring
the suspected infringement to the attention of the
Commission;
(b) the stage in the investigation at which—
(i) an involvement in the infringement was admitted;
or
(ii) any information or other co-operation was provided;
or
34 Laws of Malaysia ACT 712
(c) any other circumstances which the Commission considers
appropriate to have regard to.
Enforcement of direction or decision
42. (1) The Commission may bring proceedings before the High
Court against any person who fails to comply with a direction
given by the Commission under section 35 or a decision under
section 40.
(2) If the High Court finds that the person referred to in
subsection (1) has failed to comply with the direction or decision,
the High Court shall make an order requiring the person to comply
with the direction or decision.
(3) For the purposes of subsection (2), where the High Court
finds that the failure to comply with the decision includes a failure
to pay a penalty within the specified period, the High Court shall,
in addition to ordering that person to pay the penalty, order the
person to pay interest at the normal judgment rate running from
the day following that on which the payment was due.
(4) Any breach of an order of the High Court made pursuant
to this section shall be punishable as a contempt of court.
Power to accept undertaking
43. (1) The Commission may, subject to the conditions that the
Commission may impose, accept from an enterprise an undertaking
to do or refrain from doing anything as the Commission considers
appropriate.
(2) If the Commission accepts an undertaking under subsection
(1), the Commission shall, in relation to an infringement, close
the investigation without making any finding of infringement and
shall not impose a penalty on the enterprise.
(3) Any undertaking accepted by the Commission under this
section shall be a document available for inspection by the public
in a manner determined by the Commission.
Competition 35
(4) The provisions of any undertaking accepted by the Commission
under this section shall be enforceable by the Commission as
though those provisions had been set out in a decision given
to the enterprise providing that undertaking pursuant to section
40.
PART V
COMPETITION APPEAL TRIBUNAL
Establishment of the Competition Appeal Tribunal
44. There is established a Competition Appeal Tribunal, which
shall have exclusive jurisdiction to review any decision made by
the Commission under sections 35, 39 and 40.
Constitution of the Competition Appeal Tribunal
45. (1) The Competition Appeal Tribunal shall consist of the
following members:
(a) a President; and
(b) between seven and twenty other members appointed
by the Prime Minister on the recommendation of the
Minister.
(2) The Prime Minister shall, on the recommendation of the
Minister, upon nomination by the Chief Justice of the Federal
Court, appoint a judge of the High Court to be the President of
the Competition Appeal Tribunal.
(3) The Prime Minister shall appoint persons who, in his opinion,
have relevant expertise in industry, commerce, economics, law,
accountancy or consumer affairs to be members of the Competition
Appeal Tribunal.
(4) In recommending the members of the Competition Appeal
Tribunal to the Prime Minister, the Minister shall consider proposals
and recommendations by any Government agency or any other
body having expertise in any matter referred to in subsection
(3).
(5) The President and members of the Competition Appeal
Tribunal shall hold office for a term not exceeding six years.
36 Laws of Malaysia ACT 712
Allowances
46. The President and members of the Competition Appeal
Tribunal appointed under section 45 may be paid—
(a) a daily sitting allowance during the sitting of the Competition
Appeal Tribunal;
(b) a lodging, travelling and subsistence allowance; and
(c) such fixed allowances or other allowances,
as the Minister may determine.
Resignation and revocation of appointment
47. (1) The President or any other member of the Competition
Appeal Tribunal may resign his office by giving sixty days’
written notice to the Prime Minister.
(2) The Prime Minister may, at any time, revoke the appointment
of the President or any other member of the Competition Appeal
Tribunal if—
(a) he is of unsound mind or otherwise incapable of performing
his duties or managing his affairs;
(b) he becomes bankrupt or insolvent;
(c) there has been proved against him, or he has been convicted
on, a charge in respect of—
(i) an offence involving fraud, dishonesty or moral
turpitude;
(ii) an offence under any law relating to corruption;
or
(iii) any other offence punishable with imprisonment (in
itself only or in addition to or in lieu of a fine)
for more than two years;
(d) he is guilty of serious misconduct in relation to his
duties;
(e) he fails to comply with his obligations under section 49;
or
(f) his performance has been unsatisfactory for a significant
period of time.
Competition 37
Vacation of office and new or temporary appointment
48. (1) The office of the President or any other member of the
Competition Appeal Tribunal shall be vacated if—
(a) he dies;
(b) he resigns or otherwise vacates his office before the
expiry of the term for which he is appointed; or
(c) his appointment is revoked under section 47.
(2) The Prime Minister shall appoint another person in accordance
with section 45 to replace the President or any other member
of the Competition Appeal Tribunal during the vacancy in the
office of the President or member of the Competition Appeal
Tribunal.
(3) The Prime Minister may appoint temporarily another person
in accordance with section 45 to act as the President or any other
member of the Competition Appeal Tribunal—
(a) during any period when the President or a member is
absent from duty or from Malaysia; or
(b) if the President or a member is, for any other reason,
unable to perform the duties of his office temporarily.
(4) No act done or proceedings taken by the Competition
Appeal Tribunal in exercise of its powers or the performance of
its functions shall be affected on the ground of any vacancy in
the membership of the Competition Appeal Tribunal.
Disclosure of interest
49. (1) A member of the Competition Appeal Tribunal shall
disclose, as soon as practicable, to the President any interest,
whether substantial or not, which may be in conflict with the
member's duties as a member of the Competition Appeal Tribunal
in a particular matter.
(2) If the President is of the opinion that the member's interest
is in conflict with the member’s duties as a member of the
Competition Appeal Tribunal, the President shall inform all the
parties to the matter of the conflict.
38 Laws of Malaysia ACT 712
(3) If none of the parties to the matter objects to the conflict,
the member may continue to execute duties as a member of the
Competition Appeal Tribunal in relation to that matter.
(4) If a party to the matter objects to the conflict, the member
of the Competition Appeal Tribunal shall not continue to execute
his duties as a member of the Competition Appeal Tribunal in
relation to that matter.
(5) If the member is prohibited from executing his duties under
subsection (4), the President shall appoint another member of
Competition Appeal Tribunal to execute the duty in relation to
that matter.
(6) If the President has any interest, whether substantial or
not, which may be in conflict with his duty as the President of
the Competition Appeal Tribunal in a particular matter, he shall
refrain from executing his duty as the President in relation to
that matter.
(7) The failure of the President to refrain from executing his
duty under subsection (6) or the failure of a member to disclose
his interest shall—
(a) invalidate the decision of the Competition Appeal Tribunal
unless all parties agree to be bound by the decision;
and
(b) subject the President or the member to the revocation of
his appointment under section 47.
Secretary to the Competition Appeal Tribunal and other
officers
50. (1) The Minister shall appoint a Secretary to the Competition
Appeal Tribunal.
(2) The Minister may designate such number of public officers
as the Minister thinks fit to assist the Secretary.
(3) For the purpose of this Act, the Secretary and the officers
designated under subsection (2) shall be deemed to be officers
of the Competition Appeal Tribunal.
Competition 39
Appeal to the Competition Appeal Tribunal
51. (1) A person who is aggrieved or whose interest is affected
by a decision of the Commission under section 35, 39 or 40 may
appeal to the Competition Appeal Tribunal by filing a notice of
appeal to the Competition Appeal Tribunal.
(2) A notice of appeal shall be made in writing to the Competition
Appeal Tribunal within thirty days from the date of the decision
of the Commission and the appellant shall give a copy of the
notice to the Chairman of the Commission.
(3) The notice of appeal shall state in summary form the
substance of the decision of the Commission appealed against,
shall contain an address at which any notices or documents
connected with the appeal may be served upon the appellant or
upon his advocate and shall be signed by the appellant or his
advocate.
Record of decision of the Commission
52. (1) The aggrieved person or the person whose interest is
affected referred to in section 51 may, on his own initiative, request
in writing to the Commission for a statement of the grounds of
the decision of the Commission.
(2) Subject to subsection (3), the Commission shall, upon
receiving the written request under subsection (1), provide a copy
of the statement of its grounds to the aggrieved person or the
person whose interest is affected upon payment of the prescribed
fee.
(3) When a notice of appeal has been filed with the Competition
Appeal Tribunal under section 51, the Commission shall, if it
had not already written its grounds for its decision on the matter
stated in the notice as requested by the appellant under subsection
(1), record in writing its grounds for its decision and the written
grounds shall form part of the record of the proceedings before
the Competition Appeal Tribunal.
40 Laws of Malaysia ACT 712
Stay of decision pending appeal
53. (1) Pending the decision of an appeal by the Competition
Appeal Tribunal, a decision of the Commission shall be valid,
binding and enforceable except where a stay of the decision of
the Commission has been applied for by the appellant and granted
by the Competition Appeal Tribunal.
(2) An application for a stay of decision shall be in writing
and shall be made to the Competition Appeal Tribunal on or after
the day on which the notice of appeal has been filed with the
Competition Appeal Tribunal.
Composition of the Competition Appeal Tribunal
54. Every proceeding of the Competition Appeal Tribunal shall be
heard and disposed of by three members or such greater uneven
number of members of the Competition Appeal Tribunal as the
President may in any particular case determine.
Sitting of the Competition Appeal Tribunal
55. (1) The Competition Appeal Tribunal shall sit on such
dates and at such places as the President may from time to time
determine.
(2) The President may cancel or postpone any sitting of the
Competition Appeal Tribunal and may change the place of the
sittings which has been determined under subsection (1).
(3) Any change to the date or place of any sitting of the
Competition Appeal Tribunal shall be informed to the parties to
the appeal by a written notice.
Procedure of the Competition Appeal Tribunal
56. The Competition Appeal Tribunal shall decide its own
procedure.
Competition 41
Powers of the Competition Appeal Tribunal
57. (1) The Competition Appeal Tribunal shall have power—
(a) to summon parties to the proceedings or any other person
to attend before it to give evidence in respect of an
appeal;
(b) to procure and receive evidence on oath or affirmation,
whether oral or documentary, and examine all such
persons as witnesses as it considers necessary;
(c) where a person is so summoned, to require the production
of any information, document or other thing in his
possession or under his control which the Competition
Appeal Tribunal considers necessary for the purposes
of the appeal;
(d) to administer any oath, affirmation or statutory declaration,
as the case may require;
(e) where a person is so summoned, to allow the payment
for any reasonable expenses incurred in connection with
his attendance;
(f) to admit evidence or reject evidence adduced, whether oral
or documentary, and whether admissible or inadmissible
under the provisions of any written law for the time
being in force relating to the admissibility of evidence;
and
(g) to generally direct and do all such matters as may be
necessary or expedient for the expeditious decision of
the appeal.
(2) The Competition Appeal Tribunal shall have the powers
of a subordinate court under the Subordinate Courts Act 1948
[Act 92] with regard to the enforcement of attendance of witnesses,
hearing evidence on oath or affirmation and punishment for
contempt.
Decision of the Competition Appeal Tribunal
58. (1) The decision of the Competition Appeal Tribunal, on
any matter, shall be decided on a majority of the members.
42 Laws of Malaysia ACT 712
(2) The Competition Appeal Tribunal may confirm or set aside
the decision which is the subject of the appeal, or any part of it,
and may—
(a) remit the matter to the Commission;
(b) impose or revoke, or vary the amount of, a financial
penalty;
(c) give such direction, or take such other step as the
Commission could itself have given or taken; or
(d) make any other decision which the Commission could
itself have made.
(3) A decision of the Competition Appeal Tribunal is final and
binding on the parties to the appeal.
Enforcement of decision of the Competition Appeal
Tribunal
59. A decision given by the Competition Appeal Tribunal may,
by leave of the High Court, be enforced in the same manner as
a judgment or order to the same effect, and where leave is so
given, judgment may be entered in terms of the decision.
Protection against suit and legal proceedings
60. No action, suit, prosecution or other proceedings shall lie or
be brought, instituted or maintained in any court against—
(a) the Competition Appeal Tribunal;
(b) the President or any member of the Competition Appeal
Tribunal;
(c) the Secretary or any other officer of the Competition
Appeal Tribunal; or
(d) any person authorized to act for and on behalf of the
Competition Appeal Tribunal,
in respect of any act or omission done or omitted by him or it
in good faith in such capacity.
Competition 43
PART VI
GENERAL
General penalty
61. Any person who commits an offence under this Act for
which no penalty is expressly provided shall, on conviction, be
liable—
(a) if such person is a body corporate, to a fine not exceeding
five million ringgit, and for a second or subsequent
offence, to a fine not exceeding ten million ringgit; or
(b) if such person is not a body corporate, to a fine not
exceeding one million ringgit or to imprisonment for
a term not exceeding five years or to both, and for a
second or subsequent offence, to a fine not exceeding
two million ringgit or to imprisonment for a term not
exceeding five years or to both.
Compounding of offences
62. (1) The Minister may, by regulations, prescribe any offence
to be a compoundable offence and may prescribe the manner in
which offences may be compounded.
(2) The Commission may, with the consent in writing of the
Public Prosecutor, compound any offence committed by any
person under this Act and prescribed to be a compoundable
offence by making a written offer to the person suspected to have
committed the offence to compound the offence upon payment to
the Commission of an amount of money not exceeding fifty per
centum of the amount of maximum fine for that offence within
such time as may be specified in the written offer.
(3) An offer under subsection (2) may be made at any time
after the offence has been committed but before any prosecution
for it has been instituted, and if the amount specified in the offer
is not paid within the time specified in the offer or such extended
time as the Commission may grant, prosecution for the offence
may be instituted at any time after that against the person to
whom the offer was made.
44 Laws of Malaysia ACT 712
(4) Where an offence has been compounded under subsection
(2), no prosecution shall be instituted in respect of the offence
against the person to whom the offer to compound was made,
and any record, book, account, document, computerized data or
other thing seized in connection with the offence may be released
by the Commission, subject to such terms and conditions as the
Commission thinks fit to impose in accordance with the conditions
of the compound.
(5) All sums of money received by the Commission under this
section shall be paid into the Federal Consolidated Fund.
Offences by body corporate
63. (1) If a body corporate commits an offence under this Act,
any person who at the time of the commission of the offence was
a director, chief executive officer, chief operating officer, manager,
secretary or other similar officer of the body corporate or was
purporting to act in any such capacity or was in any manner or to
any extent responsible for the management of any of the affairs
of the body corporate or was assisting in such management—
(a) may be charged severally or jointly in the same proceedings
with the body corporate; and
(b) if the body corporate is found to have committed the
offence, shall be deemed to have committed that offence
unless, having regard to the nature of his functions in
that capacity and to all circumstances, he proves—
(i) that the offence was committed without his knowledge,
consent or connivance; and
(ii) that he had taken all reasonable precautions and
exercised due diligence to prevent the commission
of the offence.
(2) If any person would be liable under this Act to any
punishment or penalty for his act, omission, neglect or default,
he shall be liable to the same punishment or penalty for every
such act, omission, neglect or default of any employee or agent
of his, or of the employee of the agent, if the act, omission,
neglect or default was committed—
(a) by that person’s employee in the course of his
employment;
Competition 45
(b) by the agent when acting on behalf of that person; or
(c) by the employee of the agent in the course of his
employment by the agent or otherwise on behalf of the
agent acting on behalf of that person.
Rights of private action
64. (1) Any person who suffers loss or damage directly as a
result of an infringement of any prohibition under Part II shall
have a right of action for relief in civil proceedings in a court
under this section against any enterprise which is or which has
at the material time been a party to such infringement.
(2) The action may be brought by any person referred to in
subsection (1) regardless of whether such person dealt directly
or indirectly with the enterprise.
Power to make regulations
65. (1) The Minister may make such regulations as may be
necessary or expedient for—
(a) giving full effect to the provisions of this Act;
(b) carrying out or achieving the objects and purposes of this
Act; and
(c) providing for any supplemental, incidental or consequential
matters in relation to this Act.
(2) The Minister may, before making such regulations—
(a) publish a notice of his intention to make the proposed
regulations;
(b) give at least thirty days from the date of the notice to
allow any submission to be made by members of the
public in relation to the proposed regulations; and
(c) give due consideration to any submission made.
(3) The regulations made under this section may prescribe for
any act or omission in contravention of the regulations to be an
offence and may prescribe for penalties of a fine not exceeding
one million ringgit or imprisonment for a term not exceeding
five years or to both.
46 Laws of Malaysia ACT 712
Power to issue guidelines
66. (1) The Commission may issue and publish such guidelines
as may be expedient or necessary for the better carrying out of
the provisions of this Act.
(2) Without prejudice to the generality of subsection (1), 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.
(3) The Commission may revoke, vary, revise or amend the
whole or any part of any guidelines issued under this section.
Public Authorities Protection Act 1948
67. The Public Authorities Protection Act 1948 [Act 198] shall
apply to any action, suit, prosecution or proceedings against the
Commission, the Chairman, any Commission officer, any member,
officer, servant or agent of the Commission, the President,
the Secretary or any member, officer, servant or agent of the
Competition Appeal Tribunal in respect of any act, neglect or
default done or omitted by him or it in such capacity.
FIRST SCHEDULE
[Section 3]
1. Communications and Multimedia Act 1998 [Act 588]
2. Energy Commission Act 2001 [Act 610]
SECOND SCHEDULE
[Section 13]
Activities not subject to Chapters 1 and 2 of Part II
Chapters 1 and 2 of Part II of this Act shall not apply to—
(a) an agreement or conduct to the extent to which it is engaged in an
order to comply with a legislative requirement;
Competition 47
(b) collective bargaining activities or collective agreements in respect
of employment terms and conditions and which are negotiated
or concluded between parties which include both employers and
employees or organisations established to represent the interests of
employers or employees;
(c) an enterprise entrusted with the operation of services of general
economic interest or having the character of a revenue-producing
monopoly in so far as the prohibition under Chapter 1 and Chapter
2 of Part II would obstruct the performance, in law or in fact, of
the particular tasks assigned to that enterprise.
DICETAK OLEH
PERCETAKAN NASIONAL MALAYSIA BERHAD,
KUALA LUMPUR
BAGI PIHAK DAN DENGAN PERINTAH KERAJAAN MALAYSIA

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