JUDGMENT

Lee Swee Seng JCA:

[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 August 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 February 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 Lumpur - Kuching, Kuala Lumpur - Kota Kinabalu, Kuala Lumpur - Sandakan and Kuala Lumpur - Sibu routes. FOMCA perceived what had taken place as a surrendering of these East Malaysian Routes by MAS to AirAsia.

[7] The MyCC started its investigation under s 14 of the Act where it has reason to suspect that any enterprise has infringed or is infringing any prohibition under the Act.

[8] For the purpose of this dispute, it was agreed that MAS and its wholly- owned subsidiary Firefly shall be regarded as a single enterprise, as despite their separate legal entity, both form a single economic unit within which the subsidiary does not enjoy real autonomy in determining its actions on the market. See the definition of "enterprise" in s 2 of the Act.

[9] Before the coming into force of the Act on 1 January 2012, it was perfectly lawful to discuss possible collaboration and even to make it conditional upon getting the relevant antitrust clearance or exemption under s 5 Relief from Liability or s 6 Individual Exemption or s 8 Block Exemption, once the Act comes into force.

[10] Conversely, it was open to the parties to compete with each other until they both bleed if they had wanted to. Indeed, from some of the minutes of MAS produced before us, there were some indications that it was at one stage a case of no holds barred with the language of a battle cry being used to describe the strategy for an all-out competition with AirAsia such as that of a "war chest" being set aside for this purpose to the tune of USD100 million and fanciful names from the comic strips like Robin and Batman and even the movie character of Darth Vader to paint the sting of the strategy.

[11] MAS and AirAsia, the appellants herein, were taking steps to apply for the necessary reliefs or exemptions and as the