Kuala Lumpur, 15 November 2022 – PIAM wishes to offer a fuller and more accurate explanation to the facts alluded to in the article by Mervyn Lai in The Edge, as published on 5th November 2022, at 11:30am.
The author may have missed an important paragraph in the judgment of the Competition Appeal Tribunal (“CAT”) dated 2nd September 2022, which PIAM would like to draw attention to:
“[138] The Tribunal finds no evidence that PIAM and its members had met to fix the part trade discount and labour rate. There is no evidence to suggest the Insurers and its association had acted or behaved like a cartel. All meetings and the outcome of such meetings are recorded and documented. Clearly, there is no arbitrary behaviour on the part of the Insurers and its association PIAM. There is nothing close to a cartel behaviour is [sic] found in the facts of this case.” (emphasis added)
The facts here do not resemble the facts in the cartel decisions involving trade associations cited by the author, where the Malaysia Competition Commission (“MyCC”) similarly relied on the use of the deeming provision in section 4(2)(a) of the Competition Act 2010 (“CA”).
In those cases, the infringement appears to have emanated from a proposal by a member or adviser during a meeting, which was then supported by the rest of the members of the association by actual voting at the meeting. Further, the motivation behind the action to collectively fix prices was to increase prices to consumers.
This is unlike the present case where PIAM was required by Bank Negara Malaysia (“BNM”) to come to an agreement with the Federation of Automobile Workshop Owners’ Association Malaysia (“FAWOAM”) on FAWOAM’s proposal for insurers to pay repairers more by asking for a minimum labour rate and capping the amount of discount insurers could request for. This is akin to a minimum wage for repairers in order to minimise disputes. Crucially, this had no impact on price to consumers as premiums are regulated by the motor tariff. Cartels do not act against their own interests.
We reproduce the relevant paragraphs from the CAT’s decision in this regard:
[136] … The nub of the Members’ Circular 132 is merely to place on record the feedback of the members in PIAM pertaining to the prolonged negotiations between PIAM and FAWOAM. The said negotiations had been constantly monitored and facilitated by BNM.
[137] This Tribunal agrees with PIAM’s counsel’s submission that the Members’ Circular 132 is an announcement of the results of the survey undertaken by PIAM with its members. The Tribunal are unable to accept that the purported infringing agreement was an agreement concluded between the Insurers solely. It is erroneous to perceive the Members’ Circular 132 as an agreement between the Insurers alone by downplaying the involvement of FAWOAM and the back-and-forth negotiations between PIAM and FAWOAM, not to mention the “pressure” looming over PIAM from its regulator BNM. (emphasis added)
The CAT also found no evidence of price-fixing by insurers and disagreed with MyCC’s identification of the market.
PIAM has made a copy of the CAT’s decision available on its website and provides a link below:
The CAT’s decision can also be accessed at MyCC’s website, as follows:
or
About General Insurance Association of Malaysia (PIAM)
PIAM is the national trade association of all licensed direct and reinsurance companies for general insurance in Malaysia. Currently, PIAM has 25 member companies. More information on PIAM can be obtained from its website: www.piam.org.my.
Media Relations Contact:
Ms Christina Geeta Thomas
Head of Corporate Communications, PIAM
Tel : +603-2274 7399
Fax : +603-2274 5910
E-mail : christina@piam.org.my
Ms. Alea Adzhar
Senior Executive, Corporate Communications, PIAM
Tel : +603-2274 7399
Fax : +603-2274 5910
E-mail : corpcomms@piam.org.my
