Appendix II

ONLINE PUBLIC CONSULTATION STAGE 1 PRELIMINARY VIEWS ON PROPOSED AMENDMENT OF COMPETITION ACT 2010 [ACT 712] AND COMPETITION COMMISSION ACT 2010 [ACT 713] (Please submit the Online Public Consultation Feedback Form before or on 31 July 2015) Email : [email protected] Fax : 03 2272 1692 To: Malaysia Competition Commission (MyCC) Menara SSM@Sentral, Level 5, No. 7 Jalan Sentral 5, Kuala Lumpur Sentral MALAYSIA Tel : +603-2273 2277 Fax : +603-2272 1692 Email : [email protected]

Reviewer Details

Name: Knut Fournier Organisation (if Hong Kong (Chairperson) relevant): Competition Association Address: 321 Portland Street, Kowloon, Hong Kong

Tel No: +852 5627 4708 Review Fax No: Date:30/7/2015 Email: [email protected]

Review/Feedback Details

No Regulation Review/Feedback Suggestions/Recommendations . 1 Sec 2 definition - We welcome the added - Additional guidance for the of “enterprise” clarity in terms of calculation of fines for whom is concerned by individuals; the Competition Act; - Additional clarity with - We believe that in the regards to trade absence of a clear and associations. unequivocal mention of “individuals”, it would be constitutionally impossible to subject individuals to the Competition Act; - We note that it would be helpful to clarify in which conditions an individual can be targeted, and whether an employee, director, officer or agent could be subject to a fine alongside a company, or whether individuals can only be subject to sanctions when they acted without the knowledge of the company; - In the absence of turnover, additional information on how a fine imposed on an individual is needed; - It remains unclear whether the current wording catches the activities of trade associations. Is a trade association an “entity capable of carrying on commercial or economic activities”? 2 Sec 3 - Change “or economy” for “or economic” 3 Sec 5(a) - The “economic - Amend the enforcement benefits” defence has guidelines to provide a produced a vast array calculation method for the of results, from a near- “fair share” requirement impossible threshold in the EU, to potentially anti-competitive agreements been cleared by the competition authority of Singapore. While the inclusion of a “fair share” requirement is in line with recent international practice, we note that it would be helpful for businesses to receive guidance on how to calculate this “fair share”. 4 Section 8A - It appears desirable - Delete (b) that the MyCC can vary conditions or obligations to a block exemption; - It is unclear why a breach of a condition should result in additional conditions. On the contrary, a condition may be breached because a Block Exemption is not perfectly adapted to the situation, and therefore a breach can act as a sign that the exemption should be applied more flexibly, not more strictly. 5 Sec 9A - If the change in - Add a sub-section before conditions of the Block (a), allowing the entity or Exemption is triggered entities directly concerned by a breach, this by the Block Exemption section should make and by the alleged breach clear that the entity to be heard by MyCC. should be given the opportunity to be heard, both in relation to the alleged breach and in relation to the proposed change. 6 Sec 11A - Granting MyCC formal - Deleted Section 11A investigation powers in the context of market reviews seems disproportionate. If MyCC has elements that can justify a full- fledged “Section 14” investigation, it already has the possibility of obtaining information or documents. Market reviews should be based on information that is publicly available, or that is voluntarily communicated to MyCC. 7 Sec 14 - No comments 8 Sec 17 - No comments 9 Sec 18 - We welcome the - Maintain the requirement addition of “reasonable that persons have to be ground” requirement acquainted with the facts for MyCC to be able to and circumstances of the request that a person case; give evidence; - If the person called upon - It seems onerous that to provide information and Section 18 can be documents is a trade applied to persons who association (see point are not acquainted with number 1, above) clarify the facts of the case whom should present and can, for instance, evidence on behalf of the be applied to experts, trade association. consultants or academics, who may be in a position to help MyCC because of their skills or knowledge. It would be highly unfair for these persons to be the subject of an order, rather than a courteous request. In addition, this would trigger serious due process issues if MyCC was to use this power to conflict experts whom it believes would otherwise provide services to the other party. 10 Sec 35(1) - No comments 11 Sec 36(2)(c) - No comments 12 Sec 42(1A) - To render decisions of - Clarify that a decision of the MyCC enforceable MyCC only becomes as judgments of the enforceable as a High High Court triggers due Court judgment if the process issues. We parties have been afforded believe that, having procedural and regards to the potential substantive safeguards at consequences of a least equivalent to that of a judgment of the High High Court proceeding. Court, parties should be afforded additional safeguards, including procedural, which should be at least equivalent to the procedural safeguards available to parties in a High Court proceedings; - Without such equivalent safeguards, it is unclear whether the proposed additional clause is constitutionally enforceable. 13 Sec 51(3) - No comments 14 Sec 58A - We note that there is at - Add a requirement that the present no requirement CAT shall only award that costs and costs and expenses expenses be “reasonably incurred” by reasonable. the other party. International practice directs that such cost orders be constrained by a reasonableness requirement 15 Section 17 CCA - No comment 2010