PUTRAJAYA: The Federal Court has rejected an application by the Malaysia Competition Commission (MyCC) to have a previous decision reviewed in a bid to reinstate fines of RM10 million imposed on two local airlines for breaching a market-sharing prohibition.
Court of Appeal president, Justice Abang Iskandar Abang Hashim said the commission had failed to satisfy the legal requirements to warrant a review of the apex court’s previous decision denying MyCC leave to appeal.
“There is no evidence to suggest that the leave application (heard on Feb 9 last year) has been tainted with the denial of natural justice,” he said when delivering the unanimous decision.
Also on the panel today were Justices Harmindar Singh Dhaliwal and Zabariah Yusof.
The court also ordered MyCC to pay both Malaysian Airline System (MAS) and AirAsia RM50,000 each in costs.
Last year, the apex court refused to grant MyCC leave to appeal in the commission’s attempt to reinstate the RM10 million fines issued against both airlines.
MAS and AirAsia previously succeeded before the Court of Appeal in quashing the fines imposed by MyCC against them for allegedly breaching a market-sharing prohibition.
The Federal Court, in affirming the lower court’s decision, held that MyCC was not entitled to file an application for judicial review as it was not “a person who is adversely affected by a decision” of the Competition Appeal Tribunal (CAT) which had overturned the fines.
The Federal Court also found that the collaboration agreement between MAS and AirAsia was entered several months before the Competition Act 2010 came into force.
In any event, the apex court said MyCC had lost its locus standi to file a judicial review application after the coming into force of the Malaysian Aviation Commission (Mavcom) Act 2015.
The court added that MyCC no longer had regulatory powers for matters within the purview of the Mavcom Act.
In 2014, MyCC found that both airlines had breached the market-sharing prohibition under Section 4(2)(b) of the Act by entering into an agreement to share markets in the air transport services sector within Malaysia.
The quantum of the fine was calculated based on flights for the Kuala Lumpur-Kota Kinabalu, Kuala Lumpur-Kuching, Kuala Lumpur-Sandakan and Kuala Lumpur-Sibu sectors serviced by both airlines for a period of four months between Jan 1 and April 30, 2012.
MAS and AirAsia were represented by Logan Sabapathy and Ambiga Sreenevasan, respectively, while Lim Chee Wee appeared for MyCC.