1. On 20 May 2013, a Malaysian local newspaper published an opinion article by the Malaysian Competition Commission’s Chief Executive Officer (MyCC CEO) concerning associations and the Malaysian Competition Act 2010 (CA). In the article, the MyCC CEO acknowledges the benefits provided by associations to its members in terms of providing competition law training as well as assisting members on industry–wide issues. However, the MyCC CEO highlighted two potential areas of noncompliance by associations which are of particular concern to the MyCC: sharing commercially sensitive information and price fixing.
  2. The MyCC CEO explains that the gathering of members at an association meeting provides an opportunity to discuss prices, share sensitive business information or divide up contracts or markets. Casual discussions by members of matters involving prices, quantities, or future business strategies can lead to agreements or informal understandings that are caught by the CA. In addition, many associations commonly collect and disseminate industry data and statistics for their members. Where such information is commercially sensitive (for example, on retail sales and market shares of members) and is disaggregated such that they can be easily attributed to specific members, competition law issues are likely to arise as it reduces the uncertainty that would normally exist in a competitive market. By comparison, if the information disseminated is historical (and historical would mean information that cannot influence future market behaviour), it is unlikely to breach the CA. Finally, associations are also advised to review their rules of admission, standard terms and conditions, codes of conduct and certification schemes as these may include conditions that have the effect of excluding players from the market and are therefore anti-competitive.        
  3. The MyCC CEO also highlights that an agreement to fix prices is a serious breach of the CA. According to the article, it appears to be a common practice in Malaysia for members of associations to look to their association for direction or, at the very least, guidance on what prices should be charged. Although this type of activity may have been common practice in the past, the MyCC emphasised that this is now illegal. The MyCC CEO recommends that associations and their members adopt the best practice of not discussing prices or any pricing-related matters. It is also mentioned that the MyCC is in the process of undertaking a comprehensive study of recommended scale fees by professional associations.
  4. The full article by the MyCC CEO is available on the MyCC’s website:http://www.mycc.gov.my/news.asp?page=news_view&newsid=1186.
  5. We will continue to keep a close watch over the development of competition law in Malaysia. Should you like to discuss how these developments may potentially affect you, please feel free to contact us. You may also wish to browse through our publications which are available at http://www.drewnapier.com/Our-Expertise/Competition-Law-Regulatory-Practice.