Malaysia has not introduced a cross-sectoral merger control law. The Competition Act 2010 (CA) sets out prohibitions on anticompetitive agreements and abuses of dominance, but not merger control. While mergers are not expressly excluded from the scope of the CA, there is acceptance that the competition regulator, the Malaysian Competition Commission (MyCC), has only review and enforcement powers in respect of behavioural conduct but no merger control mandate.
There are, however, sector-specific laws and guidelines that regulate the antitrust aspects of mergers. The sectors are aviation services, and communications and multimedia sectors, enforced by the Malaysian Aviation Commission (MAVCOM), and the Malaysian Communications and Multimedia Commission (MCMC) respectively.
These sectoral regulators also enforce competition rules for their sector, which include prohibitions on anticompetitive agreements or conduct as well as abuses of dominance. The merger jurisdiction in each of these sectors will be discussed in turn in each section of this chapter.
i Aviation services sector
The Malaysian Aviation Commission Act 2015 (MACA) gives MAVCOM full and sole authority for competition issues in the aviation services sector.2 The provisions on competition and in particular merger control, are set out in Part VII Division 1 of the MACA. Section 54 prohibits mergers that have resulted, or may be expected to result, in a substantial lessening of competition in any aviation service market.
MAVCOM has also published the following guidelines on mergers:
- the Guidelines on Substantive Assessment of Mergers (SAM Guidelines), 20 April 2018;
- the Guidelines on Notification and Application Procedure for an Anticipated Merger or a Merger (NAP Guidelines), 20 April 2018; and
- the Guidelines on Aviation Service Market Definition, 19 January 2018.
The term 'aviation service' is defined in Section 2 of the MACA as any of the following services:
- the carriage of passengers, mail or cargo for hire or reward by air or by the use of any aircraft between two or more places, of which at least one place is in Malaysia;
- the provision in Malaysia of any of the ground handling services as specified in the Second Schedule;
- the operation of an aerodrome in Malaysia for the take-off and landing of any aircraft engaged in the carriage of passengers, mail or cargo for hire or reward; or
- any other service determined by MAVCOM to be necessary or expedient for the carriage of passengers, mail or cargo referred to in Paragraph (a), whether or not such service is provided by a licensee, permit holder or otherwise.
As sector regulator, MAVCOM has wider responsibility for the regulation of economic and commercial matters within the civil aviation industry.
Its responsibilities include the issuance of air services licences (fixed schedule journeys) and air service permits for non-scheduled services. MAVCOM also issues out aerodrome operator licences for airport operators and ground handling licences to those who wish to carry out ground handling services in Malaysia.3
Its responsibilities also cover the administration and allocation of air traffic rights to airlines based on the available capacity of each route and the approval of schedule filing. It monitors slot allocation for airlines and other aircraft operators.
It is worth noting that MAVCOM (as the sector regulator) has a wide range of ex ante regulatory tools to achieve its outcomes for the sector. It is also likely that competition enforcement will take into account the broader range of regulatory objectives of the sector. For example, the goals of the MACA include:
- to encourage effective competition within the civil aviation industry by promoting an economic environment that allows Malaysian carriers to maintain their ability to compete effectively in the civil aviation market in a sustainably profitable, efficient and fair manner;
- to maximise the economic value of any financial support granted by the federal government to the civil aviation industry and to seek and promote ways to reduce any such financial support over time; and
- to promote an environment for consumers in relation to the civil aviation industry to have access in a transparent manner to choices of products and services of high quality and at fair prices.
The MACA therefore gives MAVCOM an important margin of discretion in prioritising these regulatory objectives as well as the means to achieve them.
Definition of a merger
Pursuant to Section 54(2) of the MACA, a merger is deemed to occur if:
- two or more undertakings, previously independent of one another, merge;
- one or more persons or other undertakings acquire direct or indirect control of the whole or part of one or more other undertakings;
- as the result of the acquisition by one undertaking of the assets (including goodwill), or a substantial part of assets, of another undertaking is to place the first undertaking in a position to replace or substantially replace the second undertaking in the business or, as appropriate in the part concerned of the business in which the undertaking was engaged immediately before the acquisition; or
- a joint venture is created to perform, on a lasting basis, all the functions of an autonomous entity.
Section 48 read together with the Third Schedule lists excluded commercial activities, agreements and mergers.
Applicability to joint ventures
The MACA treats full-function joint ventures as mergers. The SAM Guidelines explain that such a joint venture 'operates in an aviation service market and performs the functions normally carried out by enterprises in that market'.
A key factor in determining whether a joint venture falls within the scope of the MACA is, for example, whether the joint venture is intended to operate on a lasting basis. Factors to determine 'intention' include:
- commitment of resources by the parent enterprises for the carrying out of the joint venture's functions as an autonomous economic entity;
- where an agreement forming the joint venture provides for a specific period, the period must be long enough to cause a lasting change in the structure of the enterprises concerned or provide for continuation of the joint venture beyond such specified period. However, provisions on the possibilities of dissolution of the joint venture by themselves do not prevent the joint venture from being considered as operating on a lasting basis;
- joint ventures established for a short definite period and to carry out a specific project may be considered as not having an operation on a lasting basis; and
- a joint venture under Section 54(2)(d) MACA would be jointly controlled by the enterprises that are parties to such joint venture where such enterprises are capable of exercising decisive influence with regard to the activities of the joint venture.
The treatment of full-function joint ventures as mergers in the aviation services sector is also an important development for the aviation sector in the wake of increasing collaborations between airlines via alliances and code sharing, and involving varying degrees of integration of operations. Merger regulations introduce another vehicle through which airlines may structure collaborations.
The prohibition under Section 54 of MACA may apply even where the merger takes place outside Malaysia or where the merger is located outside Malaysia, so long as the merger could have an effect on any aviation services market in Malaysia.
As of now, MAVCOM has laid down several de minimis thresholds on mergers. It is unlikely to investigate unless:
- the combined turnover of the merger parties in Malaysia in the financial year preceding the transaction is at least 50 million ringgit; or
- the combined worldwide turnover of the merger parties in the financial year preceding the transaction of the merger parties is at least 500 million ringgit.
ii Communications and multimedia sector
The communications and multimedia sector in Malaysia is regulated by the MCMC under the Communications and Multimedia Act 1998 (CMA). The CMA has been expressly carved out of the application of the general competition legislation (i.e., CA).4
The MCMC oversees the regulatory framework for the converging industries of telecommunications, broadcasting and information and communications technology industries. It is also the body through which the government implements and promotes its national policy objectives for the communications and multimedia sector. The MCMC licenses players in this sector and its jurisdiction as competition regulator extends over licensees. The MCMC clearly contemplates that the objective of promoting competition must be consistent with national policy objectives. As the sector regulator, it has ex ante powers – intervention before the fact, for example, price control and access conditions. It has also ex post enforcement powers. As with MAVCOM, the MCMC has a margin of discretion to prioritise these national objectives as well as the means to achieve them.
The CMA's merger control provisions are more oblique (when compared to the MACA). MCMC has expressed its intention to monitor mergers and acquisitions that have the potential to substantially lessen competition more closely using the existing regulatory framework in the CMA – namely Sections 133, 139 and 140. In essence these set out the three main prohibitions on that relate to anticompetitive conduct:
- Section 133 expressly forbids conduct that has the purpose of substantially lessening competition;
- Section 139 gives the MCMC power to direct a licensee in a dominant position to cease conduct that has the effect of substantially lessening competition; and
- Section 140(1): a licensee may apply to MCMC, prior to engaging in any conduct that may be construed to have the purpose or effect of substantially lessening competition in a communications market, for authorisation of the conduct.
The MCMC has published the following to clarify its approach in administering the prohibitions under this chapter:
- Guideline on Substantial Lessening of Competition (SLC Guideline), 24 September 2014;
- Guideline on Dominant Position (DP Guideline), 24 September 2014; and
- Market Definition Analysis – Definition of Communications Market in Malaysia 24 September 2014.
More recently, MCMC has conducted an industry consultation on the following draft guidelines, the final versions of which are expected to be released in 2018:
- Guideline on Mergers and Acquisitions (Draft M&A Guidelines), 17 November 2017;
- Guideline on Authorisation of Conduct (Draft AC Guidelines), 17 November 2017; Interestingly, the draft guidelines introduce two routes that a licensee may take in relation to clearance of a merger:
- notification to obtain MCMC's views in respect of the competitive effects of a merger or acquisition (where the applicant receives a no-objection or objection letter as the case may be); and
- authorisation of a merger where the merger will promote national interest.
Definition of a merger
On mergers, Paragraph 4.40 of MCMC's SLC Guideline states that the MCMC regards mergers to be 'conduct' falling within the scope of Sections 133 and 139 of the CMA. The definition of a merger proposed under in the Draft M&A Guidelines is similar to that set out in the MACA.
Not all mergers or acquisitions will raise competition concerns. However, a merger or acquisition may raise competition concerns if it lessens competition by reducing or weakening the competitive constraints in a market or reducing the incentives for competitive rivalry. Accordingly, MCMC has said that they will closely monitor mergers or acquisitions where:
- the merger or acquisition results in a licensee obtaining a dominant position in a market; or
- where one of the parties to the merger or acquisition is already in a dominant position.
Applicability to joint ventures
The CMA does not define 'joint venture'. However, the Draft M&A Guidelines explain that MCMC regards 'mergers and acquisitions' to constitute 'conduct which has the purpose of substantially lessening competition in a communications market'. The guidelines further state that MCMC will deem a merger to have taken place when, inter alia, 'a joint venture created to perform, on a lasting basis, all the functions of an autonomous economic entity' occurs.
The CMA provides for extraterritorial jurisdiction. The CMA and its subsidiary legislation applies to any person beyond the geographical limits of Malaysia and its territorial waters if such person:
- is a licensee under the CMA; or
- provides relevant facilities or services under the CMA in a place within Malaysia.5
It should be noted that the competition provisions under the CMA apply only to licensees. The four (major) individual licence categories under the CMA require licensees to be companies incorporated in Malaysia as a standard licence condition.
There have been no jurisdictional thresholds prescribed by MCMC. The MCMC has said that a high market share (as an indicator of dominance) would be a market share of more than 40 per cent. This is useful to the extent that MCMC has highlighted that it intends to monitor mergers involving dominant entities or that create dominant entities. The Draft M&A Guidelines do, however, provide guidance on thresholds for notification and assessment:
|Type of merger||Threshold for notification|
|Proposed horizontal merger||
At least one of the parties to the merger is a licensee in a dominant position; or
if the threshold above is not met, the merger would result in the proposed merged firm obtaining a dominant position. A post-merger market share of the proposed merged entity of 40 per cent or more would be indicative of this.
|Completed horizontal merger||The merged entity is a licensee in a dominant position.|
|Proposed non-horizontal merger||At least one of the parties to the merger is a licensee in a dominant position.|
|Completed non-horizontal merger||The merged entity is a licensee in a dominant position.|
Additionally, licensees can apply for authorisation of conduct where there are national interest justifications for the merger.
MCMC may also initiate investigations into a merger where there is allegation of anticompetitive conduct.
II YEAR IN REVIEW
i Aviation services sector
MAVCOM has developed several guidelines to clarify and illustrate the application of Part VII (Competition) of the MACA. These guidelines are SAM Guidelines, NAP Guidelines and Guidelines on Aviation Service Market Definition.
MAVCOM has also verbally confirmed that it will continue to publish further guidelines and aims to release them by the end of 2018. This is likely to include a standard form for filing merger notifications.
The gazetting of the Malaysian Aviation Commission (Amendment) Act 2018 on 10 January 2018 introduced the imposition of financial penalties for non-compliance with guidelines expedient or necessary for the better carrying out of the provisions on competition. This amendment is significant because it allows MCMC to impose high administrative penalties of up to 1 million ringgit (on individuals) and up to 5 per cent of a body corporate's annual turnover from the preceding final year (on body corporates).
ii Communications and multimedia sector
MCMC has conducted an industry and public consultation on the Draft M&A Guidelines and the Draft AC Guidelines. The guidelines are expected to be issued in 2018.
III THE MERGER CONTROL REGIME
i Aviation services sector
MACA provides for a voluntary merger control regime, so parties can implement the transaction pending clearance. Alternatively, parties may apply for a decision from MAVCOM on whether a merger infringes the Section 54 prohibition.
A decision by MAVCOM is in the form of a finding of infringement under Section 59(1) or non-infringement under Section 58. Actions that MAVCOM can take where an infringement is found include the following:
- orders to cease infringement immediately;
- specify steps that are required to be taken by an infringing enterprise that are appropriate to bring an infringement to an end, for example, unwinding orders;
- financial penalties that shall not exceed 10 per cent of the worldwide turnover over the period during which an infringement occurred; or
- any other direction that MAVCOM deems appropriate.
The NAP Guidelines provide instances of directions that can be imposed by MAVCOM:
- prohibiting an anticipate merger from being carried into effect; ordering a merger to be dissolved or modified;
- requiring parties to enter into agreements designed to lessen or prevent the anticompetitive effects arising from a merger or an anticipated merger;
- requiring a merger party to dispose its businesses, assets, shares or rights in a specified manner; or
- providing a performance bond, guarantee or other form of security on such terms and conditions as may be determined by MAVCOM.
Parties should therefore consider timing of implementation measures that are difficult or costly to unwind, if they choose to proceed with a merger that has yet to receive clearance from MAVCOM.
MAVCOM is required to prepare and publish reasons for each decision it makes.
Regime where parties do not apply
MAVCOM may launch an investigation at any point – pre- or post-closing of a transaction – whether or not the parties have made an application for clearance. An authorised officer has the power to conduct investigations on suspicion of infringement, attempts to commit infringement or conspiracy to commit infringement. In addition to MAVCOM's power to make a finding of infringement or non-infringement pursuant to MACA when its investigation powers have been invoked, an authorised officer can issue a compliance order if satisfied of an infringement or likely infringement. The compliance order can require a person to refrain from conduct in contravention of MACA or to take actions required in order to comply with MACA.
Section 57 sets out MAVCOM's power to issue interim measures. This power only arises upon commencement of an investigation which has not been completed. In other words, it is only available in context of an investigation. No specific provision to issue interim measures in connection with an application for clearance exists (in contrast, Singapore's Competition Act provisions that set out two different interim measure provisions – one in the context of an application for clearance and the other in the context of an investigation).
Interim measures are directions to:
- suspend the effect of or desist from acting in accordance with any agreement;
- desist from any conduct which is suspected to infringe a prohibition; and
- to do or refrain from doing any act (but which shall not require the payment of money).
Timing for notification
Parties can apply any time before or during the merger (anticipated merger) or after (resulting merger).
For anticipated mergers, notification and application can be made to MAVCOM when:
- merger parties have a bona fide intention to proceed with the anticipated merger;
- details of the anticipated merger are available; and
- the anticipated merger has or may been made public by any party or may be made public by MAVCOM through the publication of an application summary.
For completed mergers, notification and application can be made at any time, but merger parties are encouraged to do so as soon as possible after the merger is completed.
Time frame for assessment
The duration for the assessment of an application, based on the NAP Guidelines, will depend on complexity of issues, and timeliness and completeness of information provided by the enterprises.
The NAP Guidelines state that the CMA does not provide for a merger party to consult or seek guidance from MAVCOM on whether an anticipated merger or a merger would infringe Section 54 of MACA or should be notified to MAVCOM and applied for a decision.6
The regime is a non-suspensory regime. Parties may give effect to or proceed with mergers at their own commercial risk. MAVCOM has the power to unwind mergers that have been given effect to and even to impose financial penalties if it decides that the merger infringes the prohibition in Section 54 of the MACA.
Undertakings and remedies
MAVCOM may accept undertakings from an enterprise to do or refrain from doing anything that the MAVCOM considers to be appropriate. Where MAVCOM accepts an undertaking MAVCOM may close an investigation without a finding of infringement. These undertakings are enforceable if they form part of a decision of MAVCOM.
In terms of remedies, MAVCOM has the power to decide structural and behavioural remedies. Structural remedies may include sale of business or assets to introduce structural modifications to the market. Behavioural remedies would subject merger party to specific operating rules.
A party affected by an infringement decision by MAVCOM may within 14 days from the date notice of the decision is given, apply to the Minister for an exemption from the prohibition on the ground of public interest considerations.
Rights of appeal also exist to the High Court pursuant to Section 88(1) of the MACA, within three months beginning on the date on which the decision was communicated to the 'person or body aggrieved by the decision'.
ii Communications and multimedia sector
In assessing whether a merger or acquisition has the purpose or effect of substantially lessening competition in a relevant market, MCMC will consider the following factors:
The degree of concentration in the market with or without the merger or acquisition taking place
A merger or acquisition that leads to a significant increase in market concentration is more likely to substantially lessen competition (although concentration is not in itself determinative). MCMC will consider the extent to which competitors remaining in the market post-merger will constrain the level of competition in the market.
The extent of barriers to entry into the market
The MCMC's perspective on barriers to entry is discussed in the DP Guideline. Where a merger or acquisition brings about an increase in market concentration, low barriers to entry may nevertheless result in the merger or acquisition having no substantial effect on competition in the market, as new entrants can constrain the behaviour of the merged firm.
The effect of the merger or acquisition on the relevant firm's ability to raise prices
A lowering of competitive constraints on the relevant firm after the merger or acquisition, conveyed through its ability to raise prices above the competitive level, may indicate that the merger or acquisition has the effect of substantially lessening competition in the market.
The level of dynamic competition in the market
A merger or acquisition that leads to an increase in market concentration may not necessarily have an anticompetitive effect in a dynamic market, where future competition may be fuelled by growth and innovation.
The degree of countervailing buyer power
Countervailing buyer power may function as a competitive constraint on a licence post-merger, even where the merger or acquisition brings about greater concentration in the market.
The existence and degree of any efficiencies brought about by the merger or acquisition
In its analysis, MCMC will consider the potential beneficial effects that a merger or acquisition may have on competition. For example, mergers and acquisitions may provide efficiencies through economies of scale and the pooling of research and development. In particular, the efficiencies resulting from the merger of two smaller players in the market may actually increase competition, by providing a more powerful constraint on larger or dominant players in the market.
The MCMC may require a range of quantitative and qualitative information from parties to a merger or acquisition when assessing whether a merger or acquisition is likely to raise competition concerns. Some examples of information that the MCMC may require include:
- recent sales figures (by volume and by value) of each competitor in the market, so as to allow the MCMC to calculate market shares;
- information relating to the size of investment required for a potential competitor to enter the market;
- economic data relating to price elasticity in the market, so as to determine the effect of a possible price increase on demand and therefore to assess the ability of the merged firm to raise prices above the competitive level;
- data relating to current pricing and profit margins of the parties, and projected prices and profit margins after the merger or acquisition;
- data relating to the market's size, growth prospects; and
- level of innovation, to assess the level of dynamic competition in the market.
Section 140(1) provides that a licensee may apply to MCMC, for authorisation of the conduct where a merger will promote national interest. It is essentially a voluntary regime. Given MCMC's regulatory leverage, licensees tend to err on the side of caution and consult MCMC, particularly since MCMC has expressed an interest in monitoring mergers in the sector.
Section 143 CMA provides for criminal penalties for contravention of any prohibition of Chapter 2 Part VI, which includes a fine not exceeding 500,000 ringgit or imprisonment for a term not exceeding five years or to both. A person may further be liable to a further fine of 1,000 ringgit for every day or part of a day during which the offence is continued after conviction.
Further administrative actions available to the MCMC include the following:
- Section 37 – right of the Minister, on the MCMC's recommendation, to suspend or cancel a licence where the licensee fails to comply with a provision of the CMA.
- Section 33 – the Minister may modify, vary, revoke or impose further special or additional conditions to an existing licence.
- Section 139 – the MCMC may issue a direction to licensees to cease conduct that substantially lessens competition and implement appropriate remedies.7
There are no express provisions in the CMA on notification and assessment of mergers and acquisitions. The Draft M&A Guidelines, however, provides for a voluntary regime for notification and assessment, separate from an authorisation under Section 140 CMA.
MCMC or any person may seek an interim or interlocutory injunction against any prohibited conduct through the courts.
Timing for notification
Section 140(1) provides that a licensee may apply to the MCMC, prior to engaging into any conduct which may be construed to have the purpose or effect of substantially lessening competition in a communications market.
In the case of public listed companies, the application for approval should ideally be submitted after announcement of a transaction to minimise the risk of leakage of price-sensitive information and disenfranchisement of minority shareholders. As completion of a transaction can be made subject to regulatory approval, it is likely that this would still qualify as prior approval.
For notification and assessment under the Draft M&A Guidelines, parties should submit their transactions prior to completion. It is recommended under the same guidelines that merger parties include as a condition precedent to the completion of their merger transactional documents the approval of MCMC in circumstances that would indicate that the merger has the potential to raise anticompetitive concerns. In recognition of the fact that mergers may have proceeded prior to the introduction of the voluntary assessment process via the guidelines, MCMC will also assess these types of completed mergers.
Time frame for review
The Draft M&A Guidelines provide for a two-phase review process with an indicative timeline of 30 days and 120 days for each phase respectively.
Where parties apply for authorisation, the regime can be described as suspensory as the application for authorisation is for prior approval of the conduct. There is, however, no requirement to seek authorisation.
In theory, the notification and assessment regime proposed under the Draft M&A Guidelines appears to be a non-suspensory regime. Parties can proceed with the merger without automatic sanctions.
Prior to authorising any conduct, the MCMC may require the licensee to submit an undertaking regarding the conduct in any matter relevant to the authorisation.
The Draft M&A Guidelines allow an undertaking under the notification route as long as it involves a licensee and an anticipated merger that has yet to take place.
Section 120 of the CMA provides for rights of appeal to the Appeal Tribunal by a person who is aggrieved or whose interest is adversely affected by a decision or direction (but not a determination) of MCMC.
Section 121 of the CMA preserves the right to judicially review the decisions of MCMC provided that all remedies under the CMA are first exhausted.
IV OTHER STRATEGIC CONSIDERATIONS
What remains unclear is the application of the merger regimes to mergers between parties that are not licensees under the MACA and CMA.
MACA appears to apply to any merger that results or is expected to result in a substantial lessening of competition in any aviation service market. Its scope appears to be broader than just licensees. This is substantiated by the fact that MAVCOM has the power to determine any other service that is necessary or expedient to the carriage of passengers, etc. as an aviation service, whether or not the service is provided by a licensee.
With respect to the communications industry, the Draft Guidelines of the MCMC in defining a merger (Paragraph 3.9) does not reference the licensee. However as MCMC's powers are limited by the scope of Sections 133 and 139 (which relate to the conduct of a licensee), the definition of a merger for the purposes of the Merger Guidelines may be similarly so limited.
V OUTLOOK & CONCLUSIONS
Malaysia remains a notable exception to the general trend within jurisdictions in East Asia to adopt a merger control regime as part of their competition law framework. The aviation services and communications and multimedia sectors are exceptions in this regard. MAVCOM has recently introduced the SAM Guidelines and NAP Guidelines, and intends to introduce further guidelines in future, and MCMC will issue its final merger and authorisation of conduct guidelines soon. This will provide much needed clarity on MCMC's approach in regulating the mergers and acquisitions in these sectors. The merger control provisions in the MACA provide a useful template that could be broadened to other sectors and the broader economy via amendments to the CA, if and when cross-sectoral merger control provisions are introduced. It is hoped that the reform agenda of the newly elected government will see cross-sectoral merger control laws being introduced given that the CA is presently a 'two-legged stool' (providing only for prohibitions against anticompetitive agreements and abuse of dominance) in terms of the protection it offers to consumers.
1 Shanthi Kandiah is the founding partner at SK Chambers. She was assisted by Sarah Samantha Huang and Carmen Koay (associates at SK Chambers) in writing this chapter.
2 The MACA has been expressly carved out of the application of the general competition legislation (i.e., the CA).
3 See www.mavcom.my/en/industry.
4 Section 3 of the CA provides that the Act 'shall not apply to any commercial activity regulated under the legislation specified in the First Schedule'. The First Schedule specifies the CMA.
5 The CMA further provides that 'a place' means a point of any nature or description whether on land, in the atmosphere, in outer space, underground, underwater, at sea or anywhere else.
6 For information on the notification of an anticipated merger or a merger, MAVCOM asks parties to email them at firstname.lastname@example.org.
7 The CMA does not offer insights on what these remedies might be. The MCMC has the power to determine what the appropriate remedy might be subject to the objects of CMA, national policy and any directions issued by the Minister.