Apex court dismisses MyCC’s review bid in case against Malaysian Airlines, AirAsia

PUTRAJAYA, Nov 1 ― The Malaysia Competition Commission (MyCC) has failed in its application to review the Federal Court’s previous decision in refusing to give the regulatory body leave to pursue its appeal to reinstate RM10 million fines imposed on the Malaysian Airlines (MAS) and AirAsia Berhad for breaching a market-sharing prohibition.

MyCC’s review application was dismissed by the Federal Court three-member bench comprising Court of Appeal President Tan Sri Abang Iskandar Abang Hashim and Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Harmindar Singh Dhaliwal today.

In delivering the court’s decision, Justice Abang Iskandar said there were no merits in MyCC’s review application and that MyCC has also failed to meet the threshold requirement to warrant a review of the Federal Court’s previous decision.

He said there is not an iota of evidence suggesting that the previous Federal Court decision in refusing to grant leave to MyCC was tainted with denial of natural justice.

Justice Abang Iskandar ordered MyCC to pay MAS and AirAsia RM50,000 each in costs.

In its review application, MyCC wanted this Federal Court’s panel to review the decision of another Federal Court on Feb 9 last year which rejected the regulatory body’s application for leave to pursue its appeal against a Court of Appeal’s decision.

The Court of Appeal, on April 26, 2021, quashed the RM10 million fine that was imposed on the air carriers by MyCC in 2014 after both airlines were found to have breached the market sharing prohibition under Section 4 (2) of the Competition Act by entering into an agreement on sharing markets in the air transport services sector within Malaysia.

AirAsia and MAS then appealed over the fine and on February 18, 2016, the Competition Appeal Tribunal (CAT) set aside MyCC's decision.

MyCC then filed a judicial review application in the High Court seeking a certiorari order to quash CAT's decision and to reinstate its (MyCC) decision in imposing the fines on MAS and AirAsia.

In December 2018, the Kuala Lumpur High Court allowed MyCC's judicial review and reinstated its (MyCC) decision to impose the fine on both airlines, prompting MAS and Airasia to appeal to the Court of Appeal.

The quantum of the fine was calculated based on flights by both airlines in four months from January to April 2012 on the Kuala Lumpur-Kota Kinabalu, Kuala Lumpur-Kuching, Kuala Lumpur-Sandakan and Kuala Lumpur-Sibu routes. ― Bernama