Chapter 1 — Anti-competitive agreement
Prohibited horizontal and vertical agreement
(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,
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
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
(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 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
(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.
(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
(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;
(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
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
(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;
(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.
Chapter 3 — Market review
Power to conduct market review
(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
(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.
Exclusion
(1) The prohibition 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.
(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.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
