Did the Competition Act 2010 apply to the 2011 agreement?

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The Applicability of the Competition Act 2010 to the 2011 Agreement is Under Appeal

The Court of Appeal is considering whether the Competition Act 2010 applied to the collaboration agreement between Malaysia Airlines (MAS) and AirAsia Berhad, which was signed on August 9, 2011. AirAsia and MAS are appealing a December 2018 High Court ruling that upheld the Malaysia Competition Commission’s (MyCC) decision to fine each airline RM10 million for violating market-sharing prohibitions.
Arguments Against Applicability of the Act to the Initial Agreement

Counsel for AirAsia argued that the Competition Act 2010, which came into force on January 1, 2012, was not yet active when the collaboration agreement was initially entered into in 2011. This suggests that the initial act of agreeing to share local air transport services did not, at that specific point in time, contravene competition laws. A supplementary agreement was subsequently made on May 2, 2012, after the Act had come into effect.
MyCC's Stance and the Fines Imposed

The MyCC found that both MAS and AirAsia had breached the market-sharing prohibition under Section 4(2)(b) of the Competition Act 2010 by agreeing to share markets within Malaysia's air transport services sector. This finding initiated the case with the MyCC in 2014. The RM10 million fines imposed by the MyCC were specifically based on flights operated by both airlines between January 1 and April 30, 2012, on routes such as Kuala Lumpur-Kota Kinabalu, Kuala Lumpur-Kuching, Kuala Lumpur-Sandakan, and Kuala Lumpur-Sibu.
Airlines' Attempt to Seek Exemption

Prior to the Competition Act 2010 coming into force, both airlines had communicated with the MyCC, expressing their intention to seek an exemption for their collaboration agreement. However, official applications for exemption were not filed. This was attributed to the fact that the MyCC had already commenced investigations into the matter.

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Did the Competition Act 2010 apply to the 2011 agreement?

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