Relief of Liability:

Parties to anti-competitive agreements may rely on Section 5 of the Competition Act 2010 to relieve liability, provided that they satisfy the requirements set out below:

(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 without the agreement having the anti-competitive effects;

(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.

The Malaysia Competition Commission (MyCC) may grant relief of liability in the following ways:

• Individual exemption:

Enterprises need to apply to the MyCC for an individual exemption with respect to a particular anti-competitive agreement. Individual exemption may be granted by the MyCC subject to conditions, obligations and for a limited duration. An individual exemption can be cancelled or varied if there is a material change of circumstances or there is a breach or non-compliance of an imposed condition.

• Block exemption:

Enterprises may submit applications for “block exemption” to relieve themselves from anti-competitive behaviours. Distribution agreements in a particular industry are common examples where block exemption is granted. As with an individual exemption, a block exemption can be cancelled if there is a material change of circumstances or there is a breach or non-compliance of an imposed condition.

• Leniency regime:

The Leniency regimes provides immunity or a reduction of up to 100% of any penalties if an enterprise admits an infringement of the competition law. The 100% reduction of fines will only be awarded at the MyCC’s discretion, taking into factors such as:

• the enterprise is the first enterprise to come forward to the MyCC about an infringement,
• the stage in the investigation,
• the information or co-operation to be provided; and
• information already in possession of the MyCC.

Note: A 100% reduction in financial penalties will not be available to the enterprise which initiates the cartel or has taken steps to coerce another enterprise to take part in the cartel activity. Furthermore, any leniency granted will not protect the successful applicant from other legal consequences, such as civil proceedings commenced by an aggrieved third party who has suffered loss or damage directly caused by an infringement.