PUTRAJAYA (Oct 11): The Federal Court has fixed Feb 9, 2022 as the hearing date for Malaysia Competition Commission (MyCC)-related cases in its appeals against AirAsia Bhd and Malaysian Airline System Bhd (MAS) along with Grab Holdings Inc's appeal, while another bench upheld MyCC's fine imposed on MyEG Services Bhd (MyEG).
The dates involving MyCC were confirmed by Annabel Tan from Lim Chee Wee Partnership with theedgemarkets.com. Lim Chee Wee's firm is appearing for MyCC in all the cases.
This follows conflicting decisions with regard to the cases mentioned in the Court of Appeal, where for AirAsia and MAS, the appellate court allowed the companies' appeal against the fines imposed on them, while for Grab, it allowed the firm and its subsidiaries to challenge the decision. Another bench, however, upheld the fine imposed on MyEG.
Tan said the dates were fixed following case management of all the cases last month and this month.
MyCC's role is to ensure a level playing field as far as competition in industries is concerned.
In the case of MyCC against AirAsia and MAS, the Court of Appeal in April overturned the High Court decision by allowing the companies to appeal against the RM10 million fine each imposed on the two airlines then over their short-lived shared route pact in 2012.
In that controversial decision, appellate court Judge Justice Datuk Hanipah Farikullah, who led the three-member bench, ruled that MyCC should have abided by the Consumer Appeal Tribunal’s (CAT) decision, and not file for a judicial review to challenge the tribunal’s decision in the High Court.
“They (MyCC) cannot challenge its appellate authority,” ruled Hanipah.
The court further ruled that MyCC was not an aggrieved party under Order 53, Rule 2 of the Rules of Court to initiate a legal challenge against the decision by the CAT. Moreover, it said the threshold for MyCC to initiate a judicial review had not been breached.
Justice Hanipah, who led another Court of Appeal bench, earlier than that also allowed Grab and its subsidiaries GrabCar Sdn Bhd and MyTeksi Sdn Bhd to have the merits of their judicial review application against the proposed RM86.77 million fine by MyCC be heard in the High Court.
She ruled that there are merits in the appeal based on the evidence and there is an arguable case which can be argued further in the substantive stage.
“This is not a frivolous and vexatious application by the appellants. The High Court judgement is set aside,” Justice Hanipah said in the unanimous decision.
Grab is accused by MyCC of allegedly “abusing its dominant position by imposing a restrictive clause on its drivers which effectively prevented its drivers from promoting Grab's current and potential competitors on e-hailing platforms and in transit media advertising”.
MyEG's appeal dismissed
With regard to MyEG, a few days after the decision on the airlines, another appellate bench upheld the RM9.64 million fine imposed on MyEG for violating the competition law with regard to the sale of mandatory insurance for online applications of temporary employment permits for foreign workers (Pas Lawatan Kerja Sementara or PLKS).
The appellate court agreed with the High Court that there was no error in the lower court's decision in dismissing the company's leave for the merits of the judicial review to be heard fully.
Justice Datuk Mohamad Zabidin Mohd Diah, who led the bench, ruled that there was no error and misdirection that warranted the appellate court’s intervention in the case.
“We unanimously agree with the learned judge of the High Court that there was no irregularity or illegality in the findings which upheld the decision by the CAT made in December 2017. MyEG abused its position and not entered a level playing field as their action can harm competition,” the bench led by Justice Zabidin ruled.
MyCC chief executive officer Iskandar Ismail in June told The Edge that the conflicting Court of Appeal decisions on the cases had affected its functions and there is a need for finality.
Pointing to an article that appeared in the Global Competition Review (GCR) over the decision, which he indicated could be troubling for MyCC, Anand Raj, a partner at law firm Shearn Delamore & Co, said the upshot of the April 27 decision on the airlines suggests that if an enterprise loses an appeal against an infringement decision before the tribunal — and is asked to pay the fine — it can ask the High Court for leave to apply for a judicial review as a person “adversely affected” under the law.
“The Court of Appeal decision seems to suggest that MyCC cannot challenge a loss before the tribunal as it is not considered to be ‘adversely affected’,” Raj said.
“If that is the correct interpretation of the court’s ruling, then MyCC would be able to appeal against a loss in the High Court but not a loss before the CAT. This might result in an unusual situation where the MyCC may be the only competition agency in the world that can make a finding, lose an initial appeal and then be unable to take the case any higher,” he said.
Iskandar said the interpretation of the law is crucial for MyCC to function further as the CAT should be considered a separate entity altogether and not within MyCC, he said in the interview.
Owing to the importance of the appeals, the Federal Court, which is the apex court, fixed the February date to hear the matters.