India: Overview

In summary

The past two years witnessed significant activity by the Competition Commission of India despite the challenges imposed by covid-19. On the enforcement front, the CCI initiated various investigations in the tech sector and imposed a hefty penalty on an automobile manufacturer for imposing resale price maintenance. On the merger control front, the CCI suspended its 2019 approval for a high-profile transaction for non-disclosure of material information and imposed a hefty penalty. In the imminent future, the Competition (Amendment) Bill, if approved by Parliament, will bring in significant reforms to the existing framework.

Discussion points

• The crackdown on the tech sector remained a core priority for the CCI with a series of investigations launched against some of the usual suspects in this space, and traditional sectors such as alco-beverages, autoparts and cement equally remained within the CCI’s radar.
• Notably, in view of the hardships induced by the pandemic, the CCI softened its penalty stance on small and medium-sized enterprises found guilty of cartelisation; however, it continued levying headline-grabbing penalties in cartels involving large multinational corporations.
• The green channel deemed approval notification process for transactions exhibiting no overlaps has been a hit, with approximately 25 per cent of the transactions being notified under this route.
• In a first, the CCI also suspended its 2019 approval for a high-profile transaction for non-disclosure of material information and imposed a hefty penalty.

Introduction

Two years of the covid-19 pandemic have disrupted life as we know it. The virus prompted global lockdowns and the world was constrained to adapt to a ‘new normal’. India, too, pivoted to realign with transformed realities. The Competition Commission of India (CCI) was no exception and in an effort to maintain its operations unimpeded, it quickly published guidelines and protocols. The guidelines’ success was for all to see – India witnessed record merger filings at 87 and 99 in 2021 and 2020 respectively, at par with the number of filings (89) made in 2019. CCI’s prowess in enforcement was likewise laudable, with the Director General (CCI’s investigative arm) (DG) conducting several dawn raids between 2019 and 2021.

Some highlights that dotted Indian competition law jurisprudence include CCI’s 2 billion rupees (US$26.82 million) penalty on Maruti Suzuki India Limited (a major automobile manufacturer) (MSIL) for resale price maintenance (RPM).^[1] On the merger control front and in a first-of-its-kind decision, CCI suspended its 2019 approval of Amazon.com NV Investment Holdings LLC’s (Amazon Investments) acquisition of 49 per cent equity stake in Future Coupons Private Limited (FCPL) on grounds of non-disclosure of material information and imposed a penalty of 2.02 billion rupees (US$27.09 million) on Amazon Investments.^[2]

On the legislative front, the government of India has finalised the Competition (Amendment) Bill 2020 (the Bill).^[3] The Bill awaits consideration by the Indian Parliament. The Bill, if brought into force without much alteration, will considerably alter the existing competition law landscape in India.

Key developments in Indian competition law are set out below.

Enforcement

The Competition Act 2002 (the Act), along with its allied regulations and notifications, governs the Indian competition law landscape. Section 3 of the Act prohibits anticompetitive agreements including both horizontal and vertical agreements that cause or are likely to cause an appreciable adverse effect on competition (AAEC) in India. Section 3(3) of the Act prohibits horizontal agreements or cartels that fix prices, allocate areas of operation, limit technological innovation and rig bids. Vertical agreements that cause AAEC such as exclusivity arrangements, tie-in arrangements, refusal to deal and resale price maintenance are prohibited by section 3(4) of the Act. Section 4 of the Act forbids abuse of dominant position, including predatory pricing, denial of market access, imposing unfair or discriminatory conditions or prices, leveraging, etc.

CCI’s approach in the aftermath of covid-19

The CCI has adopted an increasingly dynamic approach in its enforcement decisions in the wake of the covid-19 pandemic and associated hardships. In recent penalty orders, it has focused on economic recovery, particularly of micro, small and medium-scale enterprises (MSMEs). The CCI passed 17 penalty orders between 2020 and 2021 for contravention of either section 3 (anticompetitive agreements) or section 4 (abuse of dominance) of the Act. However, it refrained from imposing penalty or imposed a token or ‘symbolic’ penalty in 15 of these 17 orders.

While abstaining from imposing penalty in certain cases,^[4] the CCI recognised the pandemic’s adverse impact on Indian MSMEs – inflicting penalty itself could render MSMEs economically unviable resulting in their market exits. Regardless, the authority warned the infringers of appropriate consequence should their conduct continue to run afoul of the Act. This warning is reflected in an order imposing token penalty as well.^[5]

These decisions mark a departure from the CCI’s past approach on cartels. The CCI has consistently and severely penalised cartel participants between 2011 and 2019.^[6] Yet, in the Auto Bearings cartel case^[7] and the Railway tender rigging case^[8] in 2020, and many other cartel decisions in 2021^[9], the CCI refrained from imposing penalties. While the CCI’s approach may be backed by the extraordinary circumstances created by the pandemic, critics have condemned this deviation for (1) lack of effective deterrence to potential infringers; and (2) disincentivising cartel participants to seek leniency in the absence of stringent penalties over and above the erratic pattern in imposing penalties.

Divergent from the above trend, the Beer Cartel^[10] case brought back the CCI’s rigorous treatment of cartels. The CCI imposed an enormous, combined penalty of 8.70 billion rupees (US$116.75 million) on United Breweries Limited (UBL) and Carlsberg India Private Limited (CIPL), among others, for fixing beer prices in the Indian market. Anheuser Busch InBev SA/NV (ABI), however, received a 100 per cent immunity from penalty since it was the first leniency applicant. The All India Brewers Association (the national association of beer manufacturers) was found liable for serving a platform for anticompetitive activities among the beer manufacturers.

This decision indicates that the CCI’s soft approach to cartel behaviour may be available only to MSMEs or entities significantly impacted by the pandemic.

Uptick in dawn raids

Unnerved by the pandemic, the DG actively conducted dawn raids in diverse sectors in 2020 and 2021. In December 2020, the DG raided offices of various cement manufacturers in relation to allegations of price fixing. In September 2021, the DG raided several vegetable seed companies in connection with complaints of excessive pricing of imported carrot seeds. A month later, in October 2021, premises of a country liquor manufacturer were raided on allegations of price fixing.

Digital sector under fire

Mirroring global competition authorities, the CCI initiated a flurry of investigations into activities of prominent players in the digital sector, including the likes of Flipkart Internet Private Limited (owned by Walmart Inc) (Flipkart), Amazon Seller Services Private Limited^[11] (Amazon), Google LLC^[12] (Google), WhatsApp LLC (WhatsApp) and Meta Platforms, Inc^[13] (previously known as Facebook, Inc) (Facebook). The investigations pervade various aspects of digital markets including e-commerce platform services, online intermediation services, digital payment services, mobile operating systems, online application stores, over-the-top messaging services and smart TV device operating systems.

Google and Apple under the scanner

After issuing investigation against Google for alleged abuse of its dominant position in the market for licensable mobile OS for smart mobile devices and the market for app stores for Android OS in 2020,^[14] the CCI has directed two new investigations against Google in 2021 and in 2022.

CCI’s investigation order of 2021^[15] is related to allegations of abuse of dominant position in the smart TV operating systems (TV OS) market. The CCI in its prima facie decision noted that the agreements between Google and Android TV licensees granting access to the Android smart TV OS, required Android TV licensees to (1) mandatorily pre-install the entire suite of Google applications; (2) comply with minimum Android compatibility requirements; and (3) preload Google applications and place them on the default home screen. Considering these facets, the CCI was of the preliminary view that Google’s conduct amounted to anticompetitive vertical agreement as well as abuse of dominant position and directed an investigation by the DG.

In January 2022, the CCI ordered another investigation against Google into allegations of abuse of dominant position suffered by news publishers.^[16] Upon prima facie consideration, the CCI, inter alia, found Google’s unilateral and opaque methodology for determining and sharing ad revenues with online news publishers, and not paying them for using their website’s ‘snippets’ in Google’s search results, as abusive and directed the DG to investigate.

The CCI has also directed an investigation against Apple in December 2021 into abuse of dominant position allegations in the market for app stores for iOS (operating system for Apple’s phones).^[17] Upon preliminary consideration, the CCI found that (1) mandatory use of Apple’s proprietary ‘in-app purchase’ mechanism to enable a user to unlock the app’s various paid features; (2) prohibition from enabling such features in the app that encouraged use of purchasing methods other than ‘in-app purchase’; and (3) charging a high commission of up to 30 per cent on subscriptions, prime facie amounted to imposing unfair pricing and conditions, denying market access, and leveraging.

Interim measures against online hotel aggregators

In 2019, the CCI had initiated a probe against MakeMyTrip Private Limited and Ibibo Group Private Limited (collectively, MMT-GO) in relation to vertical restraints and abuse of dominance, possibly resulting in foreclosure for hotels and accommodations.^[18] In March 2021, pending conclusion of investigation, the CCI granted interim relief to two franchisee budget hotels by directing MMT-GO to relist both hotels on their online portals with immediate effect.^[19] This was a rare instance of the CCI granting interim relief as it recognised the need to intervene early in digital markets characterised by winner-takes-all outcomes.

Writ courts supported CCI’s investigations

The CCI is seemingly well supported by constitutional higher courts in its heightened scrutiny of the digital sector.

• The CCI initiated an investigation into alleged exclusivity arrangements, deep-discounting and preferential listing with respect to smartphone and mobile phone brands by Flipkart’s and Amazon’s e-commerce platforms in 2020.^[20] Challenges by Flipkart and Amazon to the investigation were not only quickly dismissed by the single bench^[21] and the division bench^[22] of the Karnataka High Court, but also rejected by the Supreme Court of India^[23] in an accelerated fashion. While it may take several years for a case to be decided by one forum, this matter was decided and dismissed by three levels of courts in a span of few months.
• Following WhatsApp’s 2021 update on its terms of service and privacy policy, the CCI initiated an investigation in March 2021 into possible abuse of dominance by WhatsApp on account of the ‘take-it-or-leave-it’ nature of the policy.^[24] Facebook and WhatsApp challenged the CCI’s order before the Delhi High Court on the ground that the 2021 policy itself was disputed and pending adjudication before the Supreme Court of India. However, as early as April 2021, the Court rejected this argument and refused to interfere with the CCI’s investigation, upholding its jurisdiction to initiate an antitrust enquiry.^[25]
• Similarly, the contents of an investigation report against Google with respect to abuse of its dominant position in the (1) market for licensable mobile operating systems for smart mobile devices, and (2) market for app stores for the Android operating system, were leaked to the media. Google filed a petition against the CCI challenging the leak before the High Court of Delhi in September 2021. The CCI contended that it did not leak any information to the media and committed to establishing a fact-finding inquiry panel to investigate the incident. To expedite proceedings, it recalled a previous order that rejected certain confidentiality claims by Google and accepted the claims in full. Considering CCI’s concessions, the Court refused to grant any interim relief to Google and dismissed the petition while clarifying that Google was still at liberty to seek legal recourse for the leak.^[26]

Hence, any attempts to stall investigations in the digital sector have been thwarted by the Indian judiciary. Bearing in mind CCI’s proactive approach and the clear go-ahead on investigation given by superior forums, one can anticipate several decisions in this sector in the near future.

Resale price maintenance

In August 2021, the CCI imposed a penalty of 2 billion rupees (US$26.82 million) on MSIL for infringing the Act by partaking in RPM.^[27] An analysis of several emails revealed that MSIL was fixing the maximum discounts that could be offered by dealers and effectively setting the minimum sale prices for dealers.

The CCI noted that MSIL enforced a compulsory prior approval mechanism for additional discounts and even appointed mystery shopping agencies to monitor the dealers’ conduct. MSIL threatened to stop supplies to, and imposed sanctions on, its dealers for non-compliance. Based on these facts, the CCI concluded that MSIL was involved in RPM practices that caused AAEC.

The CCI observed that the imposition of RPM by a large player with significant market share such as MSIL^[28] not only thwarted intra-brand competition but lowered inter-brand competition in the passenger vehicles market and decreased pricing pressure on competing manufacturers.

The CCI’s order is under appeal and the decision of the appellate forum is likely to set important jurisprudence for RPM in India.

Legislative reforms: revamping the confidentiality regime

The present confidentiality regime^[29] has led to excessive litigation resulting in inordinate delays for all parties involved.^[30] The scheme of the Act has caused continuing conflict between a party’s right to protect its confidential information and a counter-party’s competing right to have proper access to information to effectively defend itself.

To address these issues, CCI published a draft of the Competition Commission of India (General) Amendment Regulations 2021^[31] (the Draft Amendments) proposing changes to Regulation 35 of the General Regulations. The Draft Amendments introduce a self-certification requirement for confidentiality claims, as opposed to the DG or CCI determining claims under the current practice. The Draft Amendments establish ‘confidentiality rings’ that will allow parties to access unredacted case records through authorised representatives, subject to implementation of appropriate undertakings. These key changes simplify the procedure for claiming confidentiality to a great extent, while sufficiently ensuring that commercially sensitive information is protected from disclosure.

A concerning change suggested by the Draft Amendments, however, is that parties’ representatives (who form a part of confidentiality rings) will become liable for penal actions for (1) a breach of undertaking given with respect to the use of confidential information in a confidentiality ring; and (2) submission of incorrect information while claiming confidentiality on self-certification basis. With this change, counsel or legal representatives could potentially be penalised under the Act. The Advocates Act 1961 is a dedicated legislation that regulates professional misconduct by counsel and legal representatives in India. Providing penalties for legal counsel in the Act or General Regulations could lead to unprecedented hardship to external counsels that are not strictly parties to any dispute before the CCI. This issue is exacerbated by the fact that there is no provision in the Act to appeal such CCI decisions, hence proper harmonisation between conflicting laws must be considered to mitigate any unforeseen complications. Further, the Amendment Bill dated 3 December 2021 of the Advocate’s Act 1961 on defining ‘misconduct’ of an advocate has been placed before the Rajya Sabha (the Upper House of Parliament in India). Once this bill is approved by both the Houses of the Parliament and assented to by the President, it becomes all the more important to harmonise the Act and the amended Advocate’s Act.

Merger control

2021 marked 10 years of the enforcement of the substantive provisions dealing with Indian merger control (section 5 and 6). Accordingly, a transaction, must mandatorily be notified to the CCI if it breaches any of the asset or turnover thresholds. No part of a reportable transaction can be implemented or put in effect without the CCI’s prior approval. Breach of this golden rule can attract monetary penalties.^[32] During initial enquiry, namely the Phase I review, the CCI is required to form a preliminary view on the likelihood of the transaction to cause or not cause an AAEC within India.^[33] In the absence of any competitive concerns, the CCI typically approves the transaction in Phase I review. If the CCI is of the prima facie view that the transaction can cause AAEC, it is required to commence a detailed investigation (ie, Phase II review) and may approve or block the transaction.^[34] Notably, the CCI has not yet completely blocked and has, either conditionally or unconditionally, approved all notified transactions.

A few noteworthy developments in the merger control realm are discussed below.

Non-renewal of the notification regarding 50 per cent voting rights for ‘group’

Section 5 of the Act defines the term ‘group’ to include two or more enterprises when one enterprise can, either directly or indirectly, exercise 26 per cent or more of the voting rights in the other enterprise.^[35] However, by way of a notification dated 4 March 2016^[36] (Group Threshold Notification), the Ministry of Corporate Affairs (MCA) had exempted enterprises exercising less than 50 per cent of voting rights in other enterprises from section 5 of the Act and hence from the ‘group’ definition. Resultantly, only subsidiaries were to be considered while calculating the assets and turnover under the Group Test for assessing a transaction’s reportability.

The Group Threshold Notification lapsed on 3 March 2021 and has not been renewed since. Therefore, the 26 per cent voting rights threshold for ‘group’ stipulated in section 5 of the Act revives in application. Consequentially, the value of assets and turnover of non-subsidiary investee entities in which voting rights exceed 26 per cent must be factored in while assessing a transaction’s reportability under the Group Test. This can potentially trigger a surge in merger filings with substantial additions to the value of assets or turnover of any ‘group’. Additionally, the impact of the drop in shareholding for ‘group’ qualification on the applicability of intra-group exemptions is yet to be fully ascertained.

Success of the Green Channel Route

By way of a notification dated 13 August 2019,^[37] the CCI amended the Combination Regulations^[38] and introduced a fast-track ‘Green Channel’ mechanism for notifying transactions where parties to a transaction (including downstream affiliates) do not exhibit any horizontal, vertical or complementary overlaps (the Green Channel Route). A transaction notified under the Green Channel Route receives ‘automatic’ CCI approval upon filing and is not subject to the conventional 30-day waiting period. Moreover, the burden of information and competitive analysis on parties is significantly lower. Such a notification can be made only through Form I but without market-facing information.

The Green Channel Route was introduced in the wake of rise in private equity investments in India, which are typically characterised by non-problematic minority acquisitions. Statistics are telling of the Green Channel Route’s success – out of 220 transactions notified to the CCI since August 2019, as many as 45 transactions were notified under this route.

CCI’s pragmatic stand on ‘control’

For many years, the CCI has maintained a stringent stance on ‘control’. Mere presence of an observer seat or information rights to access commercially sensitive information coupled with certain veto rights amounted to ‘material influence’ and were sufficient to attract rigorous competitive assessment. However, the CCI has gradually softened its stance in the last two years after dealing with a vast number of notifications.

In Google/Jio Platforms,^[39] Google International LLC (GIL) proposed a direct investment of 7.73 per cent in Jio Platforms Limited (JPL) along with acquisition of (1) the right to appoint a director and an observer, and (2) certain affirmative voting rights, in JPL. Pursuant to a Foundational Commercial Agreement (FCA), both GIL and JPL would contribute complementary assets and experience. The FCA contemplated technical, operational, and commercial understandings between GIL and JPL. The CCI allowed the combination as the transaction did ‘not result in unrestricted access to each other’s resources including user data’ by GIL or JPL.

Thus, CCI’s analysis has become more nuanced as it considers the degree of influence which an entity can exercise over another as an important factor in assessing likely impact of a transaction. With increased experience, it is reasonably expected that the CCI will approve transactions where an acquirer holds non-controlling rights in a target without much demur.

Penalty on Amazon and suspension of transaction

In a first-of-its-kind order, the CCI put into abeyance its approval of a transaction for non-disclosure of material facts.^[40] In November 2019, the CCI approved the acquisition of 49 per cent shareholding in FCPL by Amazon Investments.^[41]

In view of alleged suppression of material facts regarding its strategic interest in Future Retail Limited and misleading the CCI, the CCI suspended its approval and ordered that the transaction be re-notified while simultaneously imposing a penalty of 2.02 billion rupees (US$27.09 million) on Amazon Investments. Amazon Investments has appealed this order before the NCLAT.

International cooperation and competition advocacy

Acknowledging the rise in cross-border transactions, global cartels and shared policy challenges, the CCI reinforced its international network by entering a memorandum on cooperation (MoC) with Japan’s competition agency, the Japan Fair Trade Commission in July 2021. The CCI has dealt with Japan-based entities in both enforcement and merger control cases. In fact, the CCI recently imposed penalty on two Japanese companies after a leniency application revealed coordination on prices, allocation of markets, and bid rigging in the electrical power steering systems market.^[42]

The CCI also entered a memorandum of understanding with the Competition Commission of Mauritius in late December 2021.

The CCI already has cooperation agreements with several antitrust agencies, including those of Europe, United States, Brazil, Russia, China, Australia, South Africa and Canada.

Increased focus on market studies

Mandated by section 49 of the Act and cloning the trend shown by its counterparts worldwide, the CCI boosted its competition advocacy activities in 2021 by conducting detailed market studies and releasing its key findings and observations on the e-commerce, pharmaceutical and telecom sectors. These studies provide deep insights into the industry landscapes, inherent peculiarities as well as the upcoming competition trends. They provide a sneak-peek into the CCI’s regulatory approach towards the sector. The market studies have equipped the CCI with greater industry knowledge that has seemingly translated into effective enforcement actions.

Competition (Amendment) Bill 2020

The Competition (Amendment) Bill 2020 proposes sweeping changes to both the behavioural and the merger control regime and is pending consideration by the Indian Parliament. The Bill’s salient features are as follows:

• It introduces a framework for settlements and commitments. The settlement mechanism will enable parties to apply for closure of proceedings after the DG submits the investigation report but before the CCI’s final order. Parties can apply for commitments after a DG investigation has begun, but prior to the submission of the DG’s investigation report to the CCI. Pertinently, settlements and commitments will be available to parties in investigations of vertical anticompetitive agreements and abuse of dominant position only and not for cartelisation. The introduction of the settlements and commitments regime will likely be a paradigm shift on the enforcement front.
• The right to appeal certain CCI orders will be contingent on the payment of a penalty deposit, aimed at enhancing penalty recovery and preventing superficial appeals.
• It specifically recognises buyers’ cartels and hub-and-spoke-cartels, bringing non-conventional anticompetitive conduct within the Act’s ambit.
• It fortifies the leniency regime by proposing a ‘leniency plus’ policy, which will permit a leniency applicant part of one cartel to disclose another cartel in a separate market and avail penalty mitigation for both cartels.
• In relation to merger control, the bill sanctions the central government to develop fresh criteria, including deal value thresholds (in addition to existing asset and turnover thresholds) to confront inadequate regulation of combinations, with a focus on digital markets.

Evidently, the bill is indicative of the progressive and dynamic approach of India’s competition regime. It remains to be seen when the proposed amendments will be implemented in the Act.

Conclusion

While the Indian competition regime is relatively young it has exhibited remarkable agility and nimbleness to swiftly retool itself to align with rapidly evolving times. Indeed, the movement of competition law appeals and consequently, development of jurisprudence has suffered ever since the specialised competition appellate authority was merged with the common company law appellate body; however, in view of recent structural improvements, it is expected that the competition law appeals will once again reclaim precedence before the now appellate authority.

Further, with CCI’s active participation in the International Competition Network and BRICS conferences, the regime has maintained its commitment to contribute enthusiastically on an international pedestal on issues of shared interests and common themes. The last two years demonstrate that the CCI has thoughtfully strategised a multi-pronged approach to discharge its mandate effectively – on one hand, it has launched market studies to decode complexities in emerging markets and identify areas susceptible to anticompetitive conduct; on the other hand, its concerted efforts towards crackdown on big tech has emerged as a clear enforcement priority. Even on the merger control front, while the green channel benefit appears to have accomplished what it was positioned to achieve (ie, easing the merger approval process for financial investors), the standard of control devolving towards material influence could reshape the future of merger control in India.

Last but not the least, with the Competition Amendment Bill almost ripe for implementation, the existing competition law landscape is poised for a major overhaul and will likely mark a paradigm shift with the introduction of a whole suite of new features such as settlement and commitments, extension of IPR exemption of abuse of dominance, deal value thresholds, etc. As an incubator for over 40 unicorn companies, India is surely perched on a hot seat with numerous antitrust developments unfolding at a near supersonic pace.

Notes