KUALA LUMPUR (Dec 2): Businesses and individuals can sue for losses from anti-competitive conduct even without a prior finding by the Malaysia Competition Commission.

High Court judge Mahazan Mat Taib said legal recourse was still available as the lack of a determination by the antitrust agency also known as MyCC over a complaint does not necessarily mean there was no breach of the statute.

“The Court is of the opinion that the absence of a finding is not equivalent to no-infringement,” Mahazan continued, “it merely signifies that no regulatory conclusion has been reached.”

MyCC, an independent body established to enforce the Competition Act 2010, must issue a notice immediately when it decides not to pursue a complaint or issue a "non-infringement" finding in the event the agency finds no breach in law.

If the commission decides to close an investigation, it must publish a statement and set out a brief summary of the reasons.

However, the High Court said in its Nov 24 ruling that these were merely formal mechanisms by which MyCC communicates its regulatory conclusions.

"The absence of a finding is therefore a legally neutral fact. It cannot extinguish or limit the plaintiffs’ statutory right to maintain a private action under Subsection 64(1), nor does regulatory silence bar civil proceedings," Mahazan said.

The High Court was making a determination to a question-of-law application brought by Heineken Malaysia Bhd (KL:HEIM) and Heineken Marketing Sdn Bhd in a suit by Thirteen Wings Sdn Bhd and its proprietor Ashwin Kumar Kandiah, along with four other private limited companies.

The plaintiffs, who operate a group of restaurants, bars and nightclubs, have been purchasing beer from Heineken since 2012. However, Heineken proceeded to terminate the contract with the plaintiffs in November 2021.

In their 2021 suit, the plaintiffs claim that Heineken Malaysia and Heineken Marketing are a dominant entity as defined by Section 10 of the Competition Act 2010, imposed unfair trading conditions, and engaged in anti-competitive conduct — causing them to suffer losses.

In her decision, Mahazan also found that issues raised within the suit cannot be summarily decided and had to be ventilated at a full trial. The trial is currently ongoing.

Mahazan also distinguished a previous High Court decision in a case involving a coalition of taxi drivers, limousines, and airport taxis against Grab Car Sdn Bhd, where an infringement finding by MyCC is a prerequisite to commence a private action under the Competition Act.

Lawyers Ivanpal Singh Grewal, Vinodhan Kuppusamy and Umesh Nerwin Nair appeared for the plaintiffs, while the defendants were represented by Choon Hon Leng, Joshua Chong Wan Ken and Amanda Cheak Xin Yi.