Malaysia Competition Appeal Tribunal affirms MyCC infringement finding for price-fixing cartel

30 May 2023

The Competition Appeal Tribunal (“CAT”) has unanimously affirmed the final decision of the Malaysia Competition Commission (“MyCC”) which found that SAL Agencies Sdn. Bhd. and four other warehouse operators (collectively, “Appellants”) had infringed the Competition Act 2010 (“Act”) for engaging in a price-fixing cartel.

In October 2018, the MyCC commenced investigations in respect of the conduct of price fixing for services of long length handling and heavy lift handling for import and export cargoes. As a result, the MyCC found that the Appellants and two other warehouse operators had infringed section 4 of the Act by entering into certain price fixing agreements.

The CAT held, among other things, the following:

• The agreement entered into by the Appellants to fix service charges for long length handling and heavy lift handling was a horizontal agreement between enterprises to fix prices, which is prohibited under the Act;
• The deeming provision under section 4(2) of the Act (that there exists “the object of significantly preventing, restricting or distorting competition”) is not meant to be a presumption and is not rebuttable (not open for contradiction by adducing evidence) as decided in Amanah Merchant Bank Bhd v Lim Tow Choon [1994] 2 CLJ 1;
• The social benefits for a relief of liability need to possess the quality or value which is beneficial to society’s general well-being beyond mere economic benefit and not mere events that allow the Appellants’ customers to have benefit to access and enjoy a more convenient service;
• The services of long length handling and heavy lift handling for import and export cargoes would be considered as “any activity, directly or indirectly in the exercise of governmental authority” but not the fixing of charges; and
• It is a requirement under the law for charges (to long length handling and heavy lift handling) imposed within the port(s) to be gazetted which the agreement that the Appellants entered into did not.