IN THE COURT OF APPEAL MALAYSIA (APPELLATE DIVISION)

CIVIL APPEAL NO.: W-01(A)-31-01/2019 BETWEEN MALAYSIAN AIRLINE SYSTEM BERHAD ... APPELLANT AND COMPETITION COMMISSION ... RESPONDENT [IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (APPELLATE AND SPECIAL POWERS DIVISION)

(APPLICATION FOR JUDICIAL REVIEW NO.: WA-25-82-05/2016 In the Matter of Order 53 Rules of Court 2012 and other relevant provisions;

And In the matter of an application for an Order of Certiorari;

And In the Matter of Section 25 and Schedule to the Courts of Judicature Act 1964;

And In the Matter of the Competition Act

2010;

And In the Matter of the Competition Commission Act 2010;

And In the Matter of the decision of the Competition Appeal Tribunal dated

18.2.2016. BETWEEN COMPETITION COMMISSION … APPLICANT AND

1. COMPETITION APPEAL TRIBUNAL

2. MALAYSIAN AIRLINES SYSTEM BERHAD

3. AIRASIA BERHAD … RESPONDENTS]

HEARD TOGETHER WITH IN THE COURT OF APPEAL MALAYSIA (APPELLATE DIVISION)

CIVIL APPEAL NO.: W-01(A)-32-01/2019 BETWEEN AIRASIA BERHAD ... APPELLANT AND COMPETITION COMMISSION … RESPONDENT [IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (APPELLATE AND SPECIAL POWERS DIVISION)

(APPLICATION FOR JUDICIAL REVIEW NO. WA-25-82-05/2016 In the Matter of Order 53 Rules of Court 2012 and other relevant provisions;

And In the matter of an application for an Order of Certiorari;

And In the Matter of Section 25 and Schedule to the Courts of Judicature Act 1964;

And In the Matter of the Competition Act

2010;

And In the Matter of the Competition Commission Act 2010;

And In the Matter of the decision of the Competition Appeal Tribunal dated

18.2.2016. BETWEEN COMPETITION COMMISSION … APPLICANT AND

1. COMPETITION APPEAL TRIBUNAL

2. MALAYSIAN AIRLINES SYSTEM BERHAD

3. AIRASIA BERHAD … RESPONDENTS]

CORAM:

HANIPAH FARIKULLAH, JCA LEE SWEE SENG, JCA MOHD. SOFIAN ABD. RAZAK, JCA JUDGMENT OF THE COURT [1] These two appeals by the Malaysian Airline System Berhad (“MAS”) and AirAsia Berhad (“AirAsia”) raise an interesting issue on whether the Competition Commission of Malaysia (“MyCC”) still has the locus to pursue its application for Judicial Review after the Malaysian Aviation Commission Act 2015 (“MAVCOM Act”) has come into force and has taken over the regulating of economic matters relating to the civil aviation industry including competition issues.

[2] Related to that is the locus of the MyCC to apply for Judicial Review of a decision from its own appellate body, that of the Competition Appeal Tribunal (“CAT”).

[3] Substantively this appeal shall also deal with the meaning of an agreement which has the object of market sharing and the application of the deeming provision that such an agreement has an anti-competitive object under s. 4 of the Competition Act 2010 [Act 712] (‘the Act”) and if so whether the relief from liability under the Net Economic Benefit Exemptions under s. 5 of the Act would apply to the facts.

Collaboration Agreement [4] A Collaboration Agreement (“Agreement”) between MAS and AirAsia as well as AirAsia X Sdn Bhd (“AirAsia X”) was entered into on 9.8.2011, before the coming into force of the Act. For all practical purposes, AirAsia and AirAsiaX shall be referred to collectively as .

“AirAsia”

[5] The provisions that may be caught by the Act were made to be conditional upon antitrust clearance by the MyCC as at that time the Act had not come into force and no one would be able to then predict with reasonable certainty, in what form the current s. 4 and s. 5 of the Act would be like with respect to prohibited agreement and relief from liability respectively.

[6] The Federation of Malaysian Consumers Association (“FOMCA”) wrote a letter to the MyCC dated 24.2.2012 to complain that under the Agreement in the context of a Share Swap Agreement between MAS and AirAsia, there would no longer be any competition and that this may lead to an increase in fares for passengers. They were concerned that after the signing of the Agreement, Firefly had stopped flying some 4 Routes to East Malaysia from Kuala