India: Cartels

The Competition Act, 2002 (Competition Act) regulates anticompetitive conduct in India. The Competition Commission of India (CCI) is the statutory authority in charge of competition law enforcement. 1 The CCI is aided by its investigative arm, the Office of the Director General (DG), in achieving the objectives of the Competition Act, including preventing practices causing an appreciable adverse effect on competition (AAEC), promoting and sustaining competition in markets, protecting the interests of consumers and ensuring freedom of trade.

The Competition Act regulates 2 three types of conduct:

  • anticompetitive agreements, including cartels; 3
  • abuse of dominant position; 4 and
  • combinations (mergers, acquisitions and amalgamations). 5

More specifically, Section 3 of the Competition Act prohibits anticompetitive agreements that cause or are likely to cause an AAEC in India. Anticompetitive agreements include agreements between or among competitors (ie, horizontal agreements, including cartels) 6 and agreements between enterprises or persons at different stages or levels of the production chain (ie, vertical agreements). 7

To establish the existence of a cartel, the CCI must first find that competitors had entered into an agreement to fix prices, limit or control supply, production, markets, technical development, investment or provision of services, share or allocate markets or rig bids. The Competition Act defines ‘agreement’ widely. The CCI has also clarified (in its decisional practice) that the existence of an anticompetitive agreement can be inferred from a number of ‘coincidences’ and ‘indicia’. 8 The CCI and the DG also have wide powers to collect evidence, including the power to search and seize documents, and to collect evidence through dawn raids, to establish the existence of a cartel. 9

Once a horizontal agreement is found to exist, 10 it is presumed to cause an AAEC unless the agreement relates to an efficiency-enhancing joint venture. 11 This presumption is rebuttable. 12 However, the CCI’s decisional practice indicates that this burden is onerous.

Leniency in India: a shot in the arm

The CCI’s leniency programme seeks to encourage cartel participants, who admit to being involved in conduct that could result in contravention of the Competition Act, to break rank and provide information against their fellow cartelists under the Competition Commission of India (Lesser Penalty) Regulations 2009 (Lesser Penalty Regulations). As per the Competition Act, any member of a cartel (enterprise or individual) can file a leniency application with the CCI at any time prior to the DG submitting its investigation report to the CCI, seeking a reduction in penalty in exchange for ‘full, true and vital disclosure’ of information and evidence of substantial value (eg, regarding the existence of the cartel, its members and duration). The CCI is empowered to grant a reduction in penalty of up to 100 per cent to the first leniency applicant, up to 50 per cent to the second leniency applicant, and up to 30 per cent to any subsequent leniency applicant if the applicant, provides additional valuable information that was previously unknown to the CCI. Similar to other mature jurisdictions, the benefit of CCI’s leniency programme is only available for cartel violations and does not extend to abuse of dominance and vertical restraint violations.

In January 2017, the CCI issued its first order under the leniency regime in a case involving bid-rigging for tenders relating to the supply of fans to the Indian Railways (Brushless DC Fans). 13 The CCI granted the leniency applicant a reduction in penalty of up to 75 per cent as:

  • it was the first and only participant to accept the existence of a cartel;
  • it was the first and only participant to submit adequate evidence to the CCI, hence revealing the modus operandi of the cartel; and
  • it did so despite the application being made after the initiation of the investigation, and the CCI/DG already being in possession of some evidence against the cartel participants.

Shortly after this decision, the CCI amended the Lesser Penalty Regulations to streamline and strengthen its leniency programme (Amendment). 14 The Amendment expanded the scope of the Lesser Penalty Regulations by:

  • allowing individuals to approach the CCI with evidence on collusion;
  • abolishing the earlier upper limit on the number of leniency applicants who could benefit from the penalty waiver (ie, three);
  • allowing the DG to disclose confidential information from a leniency application to the other members of the cartel for the purpose of investigation (subject to approval by the leniency applicant or, where the applicant has not agreed to such disclosure, the CCI); and
  • requiring the leniency applicant to furnish an estimate of the volume of affected business in India.

The introduction of the leniency regime appears to have been a success, given that the CCI has investigated and passed a number of orders pursuant to leniency applications. Further, the recent orders passed by the CCI under the leniency regime provide additional clarity in terms of how CCI determines reduction of penalty. For instance, in a case involving bid-rigging between two broadcasting companies, Globecast and Essel Shyam Communications Ltd (ESCL), the CCI found that the parties had contravened Section 3(3)(d) of the Competition Act by exchanging sensitive information related to bids for broadcasting of various sporting events such as cricket, Formula One and hockey. Importantly, the CCI granted a 100 per cent reduction in penalty to Globecast for submitting evidence that enabled the CCI to form a prima facie opinion regarding the existence of the cartel, including email correspondence in relation to submission of bids in a concerted manner, sharing sensitive price information, and a forensic report containing mirror images of confiscated laptops and mobiles. While ESCL also furnished certain additional information to the CCI in its leniency application, it was granted only a 30 per cent reduction in penalty as its appli­cation was received after the initiation of the investigation.

The CCI has granted a reduction in penalty even in cases where it already had some evidence regarding the existence of a cartel where the additional information or evidence submitted by the leniency applicant provided ‘significant value addition’ regarding the modus operandi of the cartel. 15 The CCI granted 100 per cent immunity to Panasonic in three cases involving cartel conduct in the dry cell batteries market in India (the Batteries case).

In the first case, 16 the CCI found the evidence provided by Panasonic in its leniency application to be crucial in identifying the names, locations and email accounts of key persons involved in the cartel. This information enabled the CCI to conduct a dawn raid at the premises of three alleged cartel participants, where it found incriminating evidence regarding the existence of the cartel. The CCI granted a 30 per cent reduction in penalty to Eveready for providing evidence indicating the involvement of Geep and the Association of Indian Dry Cell Manufacturers in the cartel. Additionally, the CCI granted a 20 per cent reduction on the penalty imposed on the third cartel participant for cooperating and admitting its involvement in the cartel. The CCI also penalised the individuals who played an active role in aiding the cartel, granting each of them a penalty reduction proportionate to that granted to their respective companies.

In the second case, 17 the CCI granted 100 per cent immunity to Panasonic as the evidence provided by Panasonic enabled the CCI to order an investigation and establish a contravention of Section 3(3) of the Competition Act. Notably, the CCI considers, inter alia, the evidentiary value of the contents of the leniency applications while determining penalty.

Further, in a previous decision under the leniency regime, the CCI has clarified that it does not consider the exchange of commercially sensitive information between competitors to be sufficient to establish contravention of Section 3 of the Competition Act, in the absence of its implementation. 18

In the CCI’s most recent decision under the leniency regime, Electric Power Steering (EPS), 19 the CCI granted a 100 per cent reduction in penalty to NSK Limited Japan (NSK) and its Indian subsidiary, Rane NSK Steering Systems Ltd (RNSS), as well its individuals, for being the first to approach the CCI as a lesser penalty applicant and providing full, complete and true disclosures. The CCI further reduced the penalty of the second applicant for leniency, JTEKT Corporation, Japan (JTEKT), and its Indian subsidiary, JTEKT Sona Automotive India Ltd (JSAI), including its individuals, by 50 per cent for providing significant value addition in the matter.

Developments relating to bid-rigging

Bid-rigging refers to agreements between competitors or enterprises engaged in identical or similar production or trading of goods or provision of services that have the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding. 20 Bid-rigging is prohibited under the Competition Act and is presumed to cause AAEC. 21 In fact, Section 3(3)(d) of the Competition Act is applicable to all existing and prospective bidders with respect to any tender, regardless of whether they were engaged in the business of manufacture or sale of the purported infringing product at the time of bidding. 22 However, the allegation of an agreement to rig bids cannot be sustained in the absence of any evidence of collusion among participating bidders and non-participating companies, or that participating bidders had prior knowledge regarding non-participation of other companies. 23

Lately, the CCI has been proactive in examining bid-rigging cases, especially those involving public procurement. This is evident from the fact that the CCI has initiated investigations into potential bid-rigging on its own volition in multiple instances. 24 The CCI may rely on smoking-gun or circumstantial evidence to establish bid-rigging, as direct evidence of bid-rigging is not always easily traceable. For instance, in concluding the existence of bid-rigging with respect to the operation and management of solid waste in Pune, 25 the CCI relied on the existence of proxy bidders, as well as technical and price bids that were scanned and uploaded from the same IP address. The circumstantial evidence that the CCI has relied on in its past decisional practice includes:

  • the quoting of unusually higher rates than previous tenders; 26
  • a heightened frequency of calls and SMSs exchanged between bidders prior to the bid; 27
  • the exchange of sensitive information prior to the bid; 28
  • common mistakes in tender forms such as typographical errors; 29
  • a common pattern in the bidders’ price increment despite different costs of production, taxes and so on; 30
  • consecutive serial numbers for demand drafts; 31
  • the quoting of identical freight charges;
  • the total quantity tendered matching the total quantity collectively bid for by the bidders; 32 and
  • similarity in documentation submitted for the bids along with call detail records, screenshots of messages, etc. 33

Further, the CCI recently dismissed a complaint alleging bid-rigging by bidders circulating price information related to previous successful bids via a WhatsApp group. 34 The CCI held that the mere circulation of price information, otherwise publicly available, cannot per se be considered exchange of price sensitive information unless:

  • such circulation affects free play of the market forces with respect to prices; and
  • there is meeting of minds among the parties being investigated to achieve such affect.

Further, while price parallelism by itself is insufficient to establish collusion, unexplained price parallelism and plus factors (as identified above) together are helpful in establishing collusive and concerted arrangements among bidders.

Single Economic Entity (SEE) principle

The liability under Section 3(3) of the Competition Act may be avoided if two or more entities are able to successfully assert that they are party to the same SEE principle. According to the well-recognised SEE principle, where two (or more) entities are part of the same group, 35 are able to adequately demonstrate that they share common economic incentives 36 and are under the common day-to-day control of either each other or a third common controlling enterprise, then such entities cannot be said to compete with one another. While allowing enterprises the benefit of the SEE doctrine, the CCI is likely to test de facto and de jure control exercised by a common parent over the management and affairs, including commercial decisions, of the related companies (ie, the related companies do not enjoy economic independence). 37

However, the CCI has also held that the presumption that group companies are SEE is not irrefutable and should be decided on the facts and circumstances of each individual case 38. The CCI in Delhi Jal Board 39 has created a distinction on the application of the SEE doctrine while dealing with allegations of bid-rigging between two related entities submitting separate individual bids for a tender. In this case, despite the fact the related entities, Grasim Industries Limited and Aditya Birla Chemicals (India) Limited, both belonged to the Aditya Birla Group, the CCI rejected the SEE doctrine and sought to draw a distinction on facts, holding that both parties had consciously decided to represent themselves as independent decision-making centres while participating in tenders floated by the Delhi Jal Board. This CCI order is currently in appeal before the NCLAT and is subject to the NCLAT’s final decision.

Penalties

Section 27 of the Competition Act empowers the CCI to impose penalties in cartel cases using one of the following metrics:

  • up to 10 per cent of the average turnover of the enterprise for the preceding three financial years; or
  • up to the higher of three times the profits or 10 per cent of the turnover for each year of the continuation of the cartel.

While the CCI has not issued any guidance on the calculation of penalties, the Supreme Court’s decision in Excel Crop Care v CCI & Ors 40 has provided some clarity on a much-debated issue regarding the turnover that the CCI should take into account when determining the fine to be imposed. The Supreme Court clarified that there has to be a link between the damage caused and the profits that accrue from the cartel activity (ie, imposition of penalties under Section 27(b) of the Competition Act should be based on the relevant turnover of the company). The Supreme Court defined relevant turnover as the ‘entity’s turnover pertaining to products and services that have been affected by such contravention.’ The Supreme Court further provided guidelines on the steps to be followed to determine relevant turnover, which included:

  • looking at the entity’s audited financial statements, any other reliable records reflecting the entity’s relevant turnover or estimating the relevant turnover based on available information;
  • considering the facts and circumstances of a particular case to calculate the relevant turnover as and when it is seized with such matter; and
  • once an initial determination of relevant turnover is done, calculating the appropriate percentage after considering the mitigating factors, such as:
    • the nature, gravity and extent of the contravention
    • the role played by the infringer (ie, ringleader or follower);
    • the duration of participation;
    • the intensity of participation;
    • loss or damage suffered as a result of such contravention;
    • market circumstances in which the contravention took place;
    • the nature of the product;
    • the market share of the entity;
    • barriers to entry in the market;
    • the nature of involvement of the company;
    • the bona fides of the company; and
    • the profit derived from the contravention.

Recently, the CCI has levied lesser penalties on enterprises on account of them not being in a position to influence and dictate the terms of the anticompetitive agreement or due to having insignificant market shares in the relevant market in contrast with other competitors. 41 In the absence of any guidance on penalties, such decisions are likely to pave the path in understanding the CCI’s rationale in computation of penalties.

One such decision was where the guidelines provided by Excel Crop Care v CCI were discussed in a writ before the High Court of Delhi (DHC) challenging, inter alia, the constitutional validity of Section 27 of the Competition Act. The challenge was on the ground that Section 27 of the Competition Act lacked guidelines with respect to the scale of penalty that is to be imposed in any given case. This omission renders it vague and clothes the CCI with uncanalised power. The DHC, while rejecting the challenge to the constitutionality of Section 27, held that the Supreme Court in the Excel Corp Care v CCI has already indicated the path and course that guides the CCI, as well as the relevant considerations to be kept in mind, while imposing a penalty. The DHC further held that it is in the CCI’s domain to decide whether and to what extent to impose a penalty and it is bound to exercise this discretion, bearing in mind the factors (deemed not exhaustive) in Excel Corp Care v CCI, as well as the general objects and purposes of the Competition Act. Following these observations, the DHC directed that in all cases, at the final hearing stage, the parties have to:

  • address arguments taking into consideration the factors indicated by the Supreme Court in Excel Crop Care v CCI & Ors and any other relevant factors; and
  • make submissions on imposition of penalty and mitigating factors without prejudice to the other submissions.

NCLAT upholds highest penalty imposed by the CCI to date

The penalty of approximately 63.2 billion rupees levied by the CCI in the Cement cartel case 42 remains the highest penalty it has levied to date. This penalty was levied against cement manufacturing companies for fixing cement prices and limiting and controlling the production and supply of cement in the market in contravention of Section 3(1), read with Sections 3(3)(a) and 3(3)(b) of the Competition Act. The CCI relied on a ‘preponderance of probabilities’ standard of evidence in reaching its decision that the cement manufacturing companies were involved in a cartel. The cement manufacturing companies and CMA appealed against the CCI’s decision to the NCLAT, which dismissed the appeal and upheld the CCI’s decision after relying on corroborative evidence such as price parallelism, similar dispatch and production coordination, and low capacity utilisation.

Individual penalties

Section 48 of the Competition Act empowers the CCI to impose penalties on the officials of an infringing enterprise. Penalties can be imposed on individuals in two circumstances:

  • where the individual was in charge of, and responsible for, the conduct of the business of the company at the time of contravention of the Competition Act; 43 and
  • where an infringement occurs with the consent, connivance or negligence of any director, manager, secretary or other officer of such company. 44

Therefore, an official may be held liable for the anticompetitive conduct of an enterprise either on account of the position held by such an official or participation in the alleged anti­competitive conduct. 45

The penalty that the CCI may impose extends to up to 10 per cent of the average total income derived by the individual in the previous three financial years. 46 However, it is worth noting that the CCI penalises individuals who hold designations at more than one of the accused enterprises only once, and generally at the same rate where there are more than one individual guilty of a contravention under the Competition Act. 47 Further, where the CCI grants leniency-related penalty reductions to enterprises, it also extends the same percentage of leniency to accused individuals. 48

Balancing the jurisdiction of the CCI and other sectoral regulators

Last year, the Supreme Court set out the law on balancing CCI’s jurisdiction with respect to other sectoral regulators such as the Telecom Regulatory Authority of India (TRAI) in CCI/Bharti Airtel. 49 Initially, Reliance Jio Infocomm Limited (Jio) 50 filed a complaint with the CCI alleging that other competing telecommunication service providers (ie, Bharti Airtel Limited, Vodafone India Limited and Idea Cellular Limited) (the Incumbent Operators) had agreed to deny Jio access to adequate points of interconnection. 51 Based on the complaint, the CCI initiated an investigation into the Incumbent Operators’ alleged conduct.

Following the CCI’s initiation decision, one of the Incumbent Operators approached the Bombay High Court (BHC) challenging the CCI’s jurisdiction. The BHC concluded that the telecom sector is governed, regulated and controlled by certain special authorities, and that the CCI doesn’t have the jurisdiction to deal with interpretation or clarification of certain aspects of access to points of inter­connection, which are to be settled by the TRAI. The BHC further held that the powers of the CCI are not sufficient to deal with the technical aspects associated with the telecom sector that solely arise out of the TRAI Act. On appeal, the Supreme Court upheld the BHC’s order. According to the Supreme Court, the CCI can only exercise its jurisdiction after the TRAI determines the jurisdictional facts arising from the TRAI Act and reaches a prima facie conclusion that the Incumbent Operators have indulged in anticompetitive practices.

The Supreme Court’s decision was relied on by the BHC in the context of a case involving broadcasters’ conduct. 52 The BHC considered a challenge to the CCI’s decision to initiate an investi­gation into certain practices of Star India Private Limited (Star) and Sony Pictures Network India Private Limited (Sony). The BHC followed the judgment in CCI/Bharti Airtel and set aside the CCI’s initiation order for lack of determination of jurisdictional facts by TRAI.

Conclusion

The rise in the number of leniency cases in India over the past year reflects an increased awareness of the leniency regime in the country. The CCI is a proactive regulator that has undertaken various advocacy initiatives that have added to the discourse between the regulator and potential leniency applicants. Separately, there is a noticeable trend in the number of bid-rigging issues in public procurement. In light of the impact of such illicit activities on sustainable economic development in the country, the CCI is likely to have a keen eye for such cases.


Notes

1 Decisions of the CCI may be appealed to the National Company Law Appellate Tribunal (NCLAT) and, finally, to the Supreme Court of India (SC).

2 The CCI is empowered to initiate an inquiry into anticompetitive agreements (or unilateral conduct) of its own volition, on receipt of any information, or on the basis of a reference from the central or a state government or a statutory authority (see Section 19 of the Competition Act).

3 Section 3 of the Competition Act.

4 Section 4 of the Competition Act.

5 Section 5 of the Competition Act.

6 Horizontal agreements are presumed to cause AAEC in India.

7 Vertical agreements are considered to be anticompetitive if such agreements cause AAEC in India.

8 Express Industry Council of India v Jet Airways (India) Ltd. [Case No.30 of 2013].

9 So far, we are aware of five instances where the CCI has used its dawn raid powers: CCI v JCB India Ltd & Anr, [SLP (Crl) 5899-900/2016]; In re: Anti-competitive conduct in the Dry-Cell Batteries Market in India [Suo Motu Case No. 2 of 2016]; Anheuser-Busch InBev [details available at: https://in.reuters.com/article/india-regulator-brewers/exclusive-carlsberg-united-breweries-plead-leniency-in-india-beer-cartel-probe-sources-idINKBN1OC1QQ]; Glencore [details available at : https://economictimes.indiatimes.com/news/economy/agriculture/indian-antitrust-watchdog-raids-glencore-business-others-over-pulse-prices-sources/articleshow/68450549.cms?from=mdr]; and Mersen [details available at: https://in.reuters.com/article/us-india-antitrust-railways-exclusive/exclusive-frances-mersen-raided-by-indias-antitrust-body-sources-idINKCN1TZ17W].

10 It is important to note that in In re: Alleged Cartelisation in Flashlights Market in India [Suo Moto Case No. 1 of 2017], the CCI has clarified that it does not consider exchange of commercially sensitive information between competitors to be sufficient to establish contravention of Section 3 of the Competition Act in the absence of its implementation.

11 Proviso to Section 3(3) of the Competition Act.

12 The CCI analyses pro-competitive and anticompetitive factors to determine whether an AAEC could arise. The anticompetitive factors that the CCI considers include:

• the creation of barriers to new entrants in the market;

• the ousting of existing competitors from the market; and

• foreclosure of competition by hindering entry.

The pro-competitive factors that the CCI considers include:

• benefits accruing to consumers;

• improvements in the production or distribution of goods or provision of services; and

• promotion of technical, scientific and economic development.

13 In re: Cartelization in respect of tenders floated by Indian Railways for supply of Brushless DC Fans and other electrical items [Suo Moto Case No. 3 of 2014].

14 The Competition Commission of India (Lesser Penalty) Amendment Regulations,2017.

15 Nagrik Chetna Manch v Fortified Security Solutions & Ors [Case No. 50 of 2015].

16 In re: Cartelisation in respect of zinc carbon dry cell batteries market in India [Suo Moto Case No. 2 of 2016].

17 In re: Anticompetitive conduct in the Dry-Cell Batteries Market in India [Suo Moto Case No. 2 of 2017].

18 In re: Alleged Cartelisation in Flashlights Market in India [Suo Moto Case No. 1 of 2017].

19 In Re: Cartelisation in the supply of Electric Power Steering Systems (EPS Systems) [Suo Moto Case No. 07(01) of 2014].

20 Explanation to Section 3(3)(d) of the Competition Act.

21 Excel Crop Care Limited v CCI and Anr [Civil Appeal No. 2480 of 2014].

22 In re: Nagrik Chetna Manch [Case No. 50 of 2015] and In re: Cartelization in Tender Nos. 21 and 28 of 2013 of Pune Municipal Corporation for Solid Waste Processing [Suo Motu Case No. 3 of 2016].

23 In re: cartelization in sale of sugar mills by the Uttar Pradesh State Sugar Corporation Ltd and the Uttar Pradesh Rajya Chini Evam Ganna Vikas Nigam Ltd [Suo Moto Case No. 1 of 2013]; Reprographic India, New Delhi v Competition Commission of India and Ors [Competition Appeal (AT) No. 09 of 2019].

24 Based on a report by the Comptroller and Auditor General of India, In re: cartelization in sale of sugar mills by the Uttar Pradesh State Sugar Corporation Ltd and the Uttar Pradesh Rajya Chini Evam Ganna Vikas Nigam Ltd [Suo Moto Case No. 1 of 2013]; based on information relating to other cases, In re: Cartelization in Tender Nos. 21 and 28 of 2013 of Pune Municipal Corporation for Solid Waste Processing [Suo Motu Case No. 3 of 2016]; based on an anonymous letter sent to the CCI in, In Re: Alleged cartelisation in supply of LPG Cylinders procured through tenders by Hindustan Petroleum Corporation Ltd (HPCL), [Suo Motu Case No. 1 of 2014].

25 In re: Cartelization in Tender Nos. 21 and 28 of 2013 of Pune Municipal Corporation for Solid Waste Processing [Suo Motu Case No. 3 of 2016].

26 Director, Supplies & Disposals, Haryana v Shree Cement Limited and Ors [Case No. Case No. 5 of 2013].

27 Western Coalfields v SSV Coal Carriers Private Limited [Case No. 34 of 2015].

28 In re: cartelization by Broadcasting service providers by rigging bids submitted in response to the tenders floated by Sports Broadcasters [Suo Motu Case No. 2 of 2013].

29 Foundation for Common Cause & People Awareness v PES Installatios Pvt Ltd & Ors [Case No. 43 of 2010].

30 Delhi Jal Board v Grasim Industries Ltd [Ref. Case Nos. 3 and 4 of 2013].

31 In re: Nagrik Chetna Manch [Case No. 50 of 2015].

32 In re: India Glycols Limited v Indian Sugar Mills Association & Ors [Case Nos. 21, 29, 36, 47, 48 and 49 of 2013].

33 In re: Nagrik Chetna Manch/SAAR IT [Case No. 12 of 2017].

34 Ravi Pal v All India Sugar Trade Association [Case No. 25 of 2018].

35 Under the Competition Act, two or more enterprises will be considered to be part of the same group if one enterprise is in a position to:

  • directly or indirectly exercise 26 per cent or more of the voting rights in another enterprise;
  • appoint more than 50 per cent of the members of the board of directors in the other enterprise; or
  • control the management or affairs of the other enterprise.

The CCI has in the past held in Exclusive Motors Pvt Ltd v Automobili Lamborghini [Case No. 52 of 2012] that as long as two companies are a part of the same group, it is immaterial that they are not in a direct parent-subsidiary relationship. This order of the CCI was later upheld by the COMPAT as well [Comp AT Appeal No. 1/2013].

36 Exclusive Motors v Lamborghini (Case No. 52 of 2012) and Kansan News Pvt Ltd v Fastway Transmission Pvt Ltd (Case No. 36 of 2011) as confirmed by the Competition Appellate Tribunal.

37 In M/s Insurance Company Ltd. v Competition Commission of India, [Appeal Nos. 94-97 of 2015] while rejecting benefit of SEE being available to the three insurance companies guilty of bid-rigging, and providing services under the influence of one department of the central government of India (Department of Financial Services), the COMPAT upheld CCI’s decision on the grounds that: the insurance companies had been formed by way of a statute to encourage competition and function as per business principles in the insurance sector; and therefore the common influence of the Department of Financial Services does not detract from the independent, commercially and economically separate status of each of the four companies.

38 Shri Shamsher Kataria v. Honda Siel. The CCI held that the concept of SEE is generally applicable only if economic interests of the parties to the agreement are inseparable.

39 Delhi Jal Board v Grasim Industries Ltd [Ref. Case Nos. 3 and 4 of 2013].

40 Excel Crop Care Limited v CCI and Anr [Civil Appeal No. 2480 of 2014].

41 In re: Anti-competitive conduct in the Dry-Cell Batteries Market in India [Suo Moto Case No. 2 of 2017 and Suo Moto Case No. 3 of 2017].

42 Builder’s Association of India v CMA & Ors [Case No. 29 of 2010].

43 Section 48(1) of the Competition Act. The burden of proof lies on the individuals to prove that the contravention was committed without their knowledge, or that they had exercised due diligence to prevent the contravention from being committed, for them to be exempt from personal liability. In re: cartelization in respect of zinc carbon dry cell batteries market in India [Suo Moto Case No. 2 of 2016]; Mr G Krishnamurthy v Karnataka Film Chamber of Commerce & Ors [Case No. 42 of 2017].

44 Section 48(2) of the Competition Act.

45 In re: Cartelisation by broadcasting service providers by rigging the bids submitted in response to tenders floated by Sports Broadcasters [Suo Moto Case No. 2 of 2013]; Sudeep PM & Ors v All Kerala Chemists & Druggists Association [Case No. 54 of 2015].

46 Section 27(b) of the Competition Act.

47 In re: Alleged cartelization in supply of LPG Cylinders procured through tenders by Hindustan Petroleum Corporation Ltd (HPCL) [Suo Moto Case No. 01 of 2014], Madhya Pradesh Chemists and Distributors Federation [Case No. 64 of 2014].

48 In re: cartelization in respect of zinc carbon dry cell batteries market in India [Suo Moto Case No. 2 of 2016]; In Re: Cartelisation in the supply of Electric Power Steering Systems (EPS Systems) [Suo Moto Case No. 07(01) of 2014].

49 CCI v Bharti Airtel [(2019) 2 SCC 521].

50 Jio provides telecommunication services in India.

51 Points of interconnection between telecommunication service providers are crucial for call connectivity.

52 Writ Petition No. 9175 of 2018.

Get unlimited access to all Global Competition Review content