On 25 April 2022, the Malaysia Competition Commission ("MyCC") issued, for public consultation, the salient terms of its proposed amendments to the Competition Act 2010 (“Salient Terms”).
The Salient Terms indicate that the proposed amendments will include the introduction of an economy-wide merger control regime which makes mandatory the notification of anticipated mergers which meet prescribed thresholds to MyCC for competition assessment. Mergers or anticipated mergers which do not satisfy the prescribed thresholds may be voluntarily notified to MyCC as well.
Parties to anticipated mergers who are mandated to notify MyCC of the anticipated merger in question will also be subject to the suspensory provisions mentioned in the Salient Terms. Such suspensory provisions prevent the said anticipated merger from being implemented before MyCC officially clears it after carrying out the relevant assessments. Failure to adhere to these rules may result in a financial penalty of up to 10% of the value of the anticipated merger transaction. Such a heavy sanction incentivises affected parties to avoid deviating from such rules.
MyCC has also decided, according to the Salient Terms, that the new merger control regime will exclude (i) mergers involving commercial or economic activities regulated under certain legislation, and (ii) mergers between enterprises licensed, registered, or approved by specified authorities. MyCC has, however, indicated that, should one merging entity out of the merging parties fall under the purview of the merger control regime, the entire merger or anticipated merger will then fall under its purview and jurisdiction. These proposed amendments are subject to change given that they have not been approved in Parliament and are only in draft form based on public consultation. MyCC has indicated that the proposed introduction of merger control is expected to take place in Q4 of 2023.
Finally, together with a new proposed merger control regime, the Salient Terms have also revealed that a new settlements procedure and whistle-blower rewards system and a new and improved leniency programme will be proposed. These proposals will strengthen the investigative powers of MyCC and ensure efficient use of its various resources.
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