A brief overview of the enforcement machinery and procedure
Antitrust laws in India are primarily captured in the Competition Act, 2002 (the Competition Act), with their enforcement and administration entrusted to the Competition Commission of India (CCI).
The CCI is ably equipped to investigate anti-competitive practices, and is aided by its investigative arm, the director general (DG). The CCI’s powers of investigation extend to the ability to summon and enforce the attendance of any person, examine him on oath, receive evidence on affidavit and issue commissions for the examination of witnesses and documents. Decisions of the CCI may be challenged before the three-member Competition Appellate Tribunal (COMPAT). A further appeal from the decision of the COMPAT may lie before the Supreme Court of India.
The CCI may initiate an inquiry in relation to an anti-competitive agreement,1 including cartels, of its own volition (suo motu), on receipt of any information or on the basis of a reference from the central or a state government or a statutory authority. Any person, consumer or their associations can provide information that triggers such inquiries. If the CCI finds a prima facie case, it directs the DG to carry out a detailed investigation. The DG submits a report of its findings to which objections may be invited, and the CCI may direct further investigation and conduct oral hearings. Finally, if the CCI finds that an agreement is anti-competitive or there exists a cartel, it may impose penalties and pass any other order it deems appropriate.
Cartels: an overview of the substantive law
The Competition Act regulates three types of practices: anti-competitive agreements, abuse of a dominant position and combinations (ie, mergers, acquisitions, and amalgamations).
An anti-competitive agreement is one that causes an appreciable adverse effect on competition (AAEC) in India. To determine whether there exists an AAEC, the CCI balances the possibility of:
- the creation of barriers to new entrants in the market;
- the ousting of existing competitors from the market;
- foreclosure of competition by hindering entry; against
- benefits to consumers;
- improvements in the production/distribution of goods; and
- the promotion of technical, scientific and economic development.
Section 3 of the Competition Act deals with two types of potentially anti-competitive agreements: (i) agreements between/among competitors (horizontal agreements or cartels); and (ii) agreements between enterprises or persons at different stages or levels of the production chain (vertical agreements).
Section 3(3) of the Competition Act identifies four types of horizontal agreements, also called ‘cartel’ agreements, which are presumed to cause an AAEC in India:
- price-fixing agreements, ie, agreements between competitors which directly or indirectly have the effect of fixing or determining purchase or sale prices;
- agreements between competitors which seek to limit or control production, supply or markets;
- market-sharing agreements between competitors irrespective of the form that they may take; this includes market sharing by way of allocation of products, geographies or source of production; and
- bid-rigging agreements, ie, agreements between competitors which have the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process of bidding.
The CCI examines the evidence at hand and determines if there exists a horizontal ‘agreement’ or a cartel. Once a cartel is found to exist, AAEC is presumed. Unless the presumption of AAEC is rebutted with the help of counter-evidence, orders prohibiting the cartel and/or imposing sanctions follow.
However, the presumption of AAEC does not attach to horizontal agreements if they are entered into by way of a joint venture which increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.
Given that section 3(3) seeks to prohibit cartels on the basis of a presumption that they cause an AAEC and it is onerous to rebut such a presumption, the ‘standard of proof’ required to establish the existence of a cartel agreement is a quintessential issue. Equally, once a cartel agreement is found to exist, the focus quickly shifts to the penalty that the CCI may impose on cartel members. In the next section we examine the nature of evidence that the CCI has relied upon in the recent cases to establish the existence of a cartel agreement. Thereafter, we examine the CCI’s approach to penalties for cartelisation and the current leniency regime. Finally, the article outlines the proposed changes to the rules and procedure on conducting ‘dawn raids’ which may provide a significant boost to the CCI’s cartel enforcement endeavours.
‘Agreement’: standard of proof
The scope of the term ‘agreement’, as defined in the Competition Act, extends to a mere ‘arrangement’, ‘understanding’ or ‘action in concert’, none of which need be in writing or enforceable by law. This broad definition of the term ‘agreement’ is no accident. Similar to other jurisdictions, the Indian legislators have intentionally defined the term in a broad manner because rarely, if ever, do cartels exist in explicit contractual form, and direct evidence is almost a myth. As a result, relatively less exacting and more achievable standards of proof are set as benchmarks.
Indian courts and quasi-judicial bodies like the CCI are usually called upon to choose between two different standards of proof while determining the existence of a conduct or an agreement. For instance, to prove the existence of a cartel on the standard of balance of probabilities, the CCI will merely have to show that it is more likely than not that such an agreement exists. On the other hand, if the CCI adopts the significantly higher (beyond reasonable doubt) standard of proof, it will have to ensure that its decision leaves no reasonable doubt as to the existence of such an agreement.
The CCI flagged off its cartel enforcement endeavours by adopting something close to the beyond reasonable doubt standard. However, over time, the CCI appears to have lowered the standard of proof required for establishing the existence of an ‘agreement’. In two of the early cases, the tyre cartel2and Deutsche Bank,3 the CCI held that the existence of an agreement must be established ‘unequivocally’, which appeared to be in line with the ‘beyond reasonable doubt’ standard. However, in the more recent soda ash4cartel and shoe cartel5 cases, the CCI has laid down that the standard of proof required for establishing the existence of an ‘agreement’ is one of ‘balance of probabilities’. In other words, the CCI can reach a finding that an ‘agreement’ exists if the evidence suggests it to be more likely than not.
Rebutting the presumption of an appreciable adverse effect on competition (AAEC): standard of proof
The issue of standard of proof is particularly important in cartel cases because once it is established that a cartel agreement exists, the presumption of an AAEC automatically applies. The burden then shifts to the defendants to adduce counter-evidence to try and establish that their agreement does not cause an AAEC. Once the CCI has considered the balance of probabilities to reach its decision on the existence of a cartel agreement, it’s likely that a similar standard may be used to examine whether the counter-evidence submitted by the defendants is sufficient to rebut the presumption of AAEC. While the CCI is yet to rule on this issue, the Supreme Court of India has consistently held that the rebuttal of a presumption requires refutation on the balance of probabilities.6
Agreement: nature of evidence
Cartels, by their very nature, rarely leave direct evidence of their presence, leading the CCI to repeatedly hold that direct evidence is not necessary to establish the presence of an ‘agreement’.7 Instead, the CCI relies on circumstantial evidence, both economic and conduct-based, to reach its decision on the existence of a cartel agreement. Often, the CCI examines economic evidence – such as the level of market concentration, parallel movement of prices, trends in capacity utilisation and variations in cost-structures across firms – while carrying out cartel inquiries. In terms of conduct-based evidence, the CCI relies on evidence of meetings between competitors, similar or identical bidding prices, membership of trade associations, any history of cartelisation in other jurisdictions, and suspicious sharing of documents.
Economic and conduct-based evidence: trends
CCI and economic evidence – a movement toward more detailed analysis
From the initial skeletal treatment of economic evidence, the CCI has moved on to a more detailed and sophisticated analysis of economic evidence at hand. This is evident from a closer analysis of its cartel decisions starting from the cement cartel case8 and leading up to the more recent tyre cartel case.
For one, in the cement cartel case, it failed to look at market share volatility, ie, changes in market share over the period of alleged cartelisation. The presence of significant market share volatility generally goes against a narrative of cartelisation in any industry. This was subsequently acknowledged by the CCI in the later soda ash cartel case where volatile market share was seen as negating inferences of cartelisation. The CCI also adopted a similar approach in the tyre cartel case.
Second, in the cement cartel case, the CCI gave significant weight to the concentrated nature of the Indian cement market and indicated that the oligopolistic nature of the market facilitates collusion. However, the CCI subsequently recognised in the soda ash cartel case that while the oligopolistic nature of a market may lead to interdependence, such interdependence does not necessarily imply collusion.
Third, the CCI’s analysis of cost-structures of firms to gauge whether there has been an artificially fixed price via collusion has also matured with time. In the cement cartel case, cost-analysis was basic, with the CCI factoring the costs of only two amongst many raw materials. The CCI gave cost analysis much more weight in the tyre cartel case where it refuted the DG’s finding of high prices, being an indicator of cartelisation, as the DG had not carried out detailed cost versus price analysis for all input materials.
Fourth, capacity utilisation analysis was not looked into in any degree of detail in the cement cartel case where the CCI simply assumed that a decrease in capacity utilisation was strong evidence of cartelisation without giving any heed to extraneous factors that might account for such a decrease. The treatment in the tyre cartel case, however, was far more extensive as the CCI, upon examination, found that the declining capacity utilisation was a result of factors such as a fall in demand due to an overall economic recession.
Economic and conduct-based evidence: complementarity
The CCI generally uses both economic and conduct-based evidence to determine whether an agreement exists or not.9 A closer look at some of the decisions of the CCI supports this understanding.
In the aluminum phosphide cartel case,10 which looked into bid rigging by manufacturers of aluminum phosphide tablets, all three companies participating in the tender process floated by the Food Corporation of India (FCI) quoted an identical bid price. This was despite a marked difference in each company’s cost of production. The entries in the visitors’ register at the offices of the FCI show all three participants entering the premises at the same time, with one signing in for the entire group. The CCI inferred that the bidders had the opportunity to discuss the prices, and when combined with the other factors listed above, such evidence was sufficient to prove the existence of an agreement to maintain prices at a certain level.
In the medical equipment cartel case,11 which concerned the supply and installation of medical equipment to the Sports Injury Centre at Safdarjung Hospital, the CCI identified a cartel based on evidence from the bid documents themselves. Only three firms participated in the tender process and the contract was awarded to MDD Medical Systems Pvt Ltd (MDD) as the lowest bidder. The initial estimated cost for the equipment was approximately US$1.5 million, but MDD was awarded the work for approximately US$2.4 million. This substantial difference between the initial estimate and the final bid raised the CCI’s suspicion. The CCI also discovered many common typographical errors in the separate bids submitted by PSE Installations Pvt Ltd (PSE), MDD and Medical Products Services (MPS). The companies tried to explain the identical errors by claiming they all visited the same cybercafé to type out their respective bid letters; unsurprisingly, the CCI did not accept this explanation. The CCI also analysed the bid patterns of these three companies and found that PSE won a contract for similar work at JPNA Hospital with MDD and MPS submitting higher bids. This indicated a typical case of rotating bids when all firms, except one, quote artificially inflated prices, and this process is repeated with different bidders winning each time.
Under somewhat similar circumstances in the bid-rigging case filed by Coal India Limited (CIL) against 10 explosives manufacturers, two manufacturers (Gulf Oil Corporation Limited and Blastec India Limited) wrote identical letters to CIL explaining their reasons for not taking part in the auction.12 To the CCI, these letters were proof of a ‘meeting of minds’.
In the shoe cartel case, the CCI levied a cumulative penalty of approximately US$0.9 million on 11 rubber shoe manufacturers for bid rigging in the supply of rubber shoe soles to the Directorate General of Supplies and Disposals under section 3(3) of the Competition Act. The allegations were based on the evidence that:
- the bids made by the shoe manufacturers were in a very narrow range;
- most of them had restricted the quantity they would supply; and
- most had also fixed the maximum quantity they would supply to a particular direct demanding officer (DDO).
The CCI examined the bidding pattern in light of both the near-identical prices and the limited range in terms of quantities, quoted by each of the alleged colluders, despite differences in, inter alia, their operations, production capacities, costs, geographies and profits. For instance, the cost of raw materials (latex and rubber) was subject to significant fluctuations, yet the accused generated near-identical estimations of the average cost of raw materials. Moreover, they gave uniform reasons for near-identical bids to the DG, whereas while the submissions to the CCI differed.
The CCI viewed the Federation of Industries of India, the industry’s trade association, as providing the shoemakers the necessary platform to hold meetings. Commercially sensitive performance statements in relation to the other accused were found in the possession of one of the accused, which led the CCI to infer sharing and exchange of information among bidders prior to participating in the bid.
The accused had restricted their production to less than half their installed capacity, and a majority of them had restricted their supply-commitment to each DDO. The opposite parties were unable to give any valid justification for these actions. These factors allowed the CCI to reach a finding of bid rigging in violation of the Competition Act.
Now that we have seen how the CCI uses both economic and conduct-based evidence together to detect cartels, we will analyse the relative weight the CCI assigns to both.
Economic and conduct-based evidence: which one prevails?
Analysing the CCI’s cartel jurisprudence, one trend becomes
apparent – the clinching evidence in a cartel case is rarely economic. This is not to deny the importance of economic evidence, but the CCI acknowledges the necessity of conduct-based evidence over economic evidence to come to a finding of cartelisation. This seems to flow from the CCI’s realisation that economic evidence such as price parallelism can also be a rational conscious parallelism, which is distinguished from concerted/collusive parallelism. The CCI’s
reliance on some critical conduct-based evidence is apparent from its decisions in the cement cartel case (where cartelisation was found) and the tyre cartel case (where cartelisation was not found).
Both cases concentrated on allegations of price fixing through either:
- direct coordination on retail prices; or
- indirect methods of coordination, such as limiting production, restricting supplies, or controlling dispatch.
In both cases, the price fixing was alleged to have taken place under the auspices of the particular industry’s trade association (the Cement Manufacturers’ Association of India (CMAI) and the All India Tyre Manufacturers’ Association (AITMA)). Trade associations have come under repeated scrutiny of the CCI. It perceives them to be a fertile ground for collusive behaviour because of the opportunities for repeated interaction among competitors that such a forum provides. The focus of both investigations was the possible existence of parallel pricing and whether this was conclusive of cartel activity. The CCI opted for a two-step approach in both cases. First, it examined whether prices, production and dispatch moved in tandem; and second, where prices, production and dispatch did move in tandem, it then considered the roles of the CMAI and the AATMA in facilitating parallel pricing.
Neither case had the quintessential ‘smoking gun’: generally key to the swiftest ‘violation’ decisions and, in certain jurisdictions, criminal convictions as well. The cases hinged on the inference of an agreement and it came down to parallel pricing to establish just that.
However, this is where the similarity between the two cases ends. A finding of parallel pricing in the cement cartel case was enough to assure the CCI of conscious coordination rather than a possible non-collusive consequence of oligopolistic market conditions. On the other hand the tyre manufacturers, also guilty of having displayed parallel pricing, were not found to have entered into anti-competitive agreements under section 3(3) of the Competition Act. Instead, the CCI relied on factors such as high volume of imports (which limited the ability of tyre manufacturers to limit supply or underutilise capacity) and the global economic slowdown to justify the parallel movement of prices.
The difference that probably led to a positive finding on the existence of a cartel in the cement decision was a simultaneous price increase in cement prices right after the CMAI meetings on two occasions. If one were to speculate, this could have been the critical factor that swung the CCI’s opinion, despite economic evidence to the contrary. Thus we see reliance on a combination of economic evidence coupled with conduct-based evidence for determining cartelisation, with the conduct-based evidence being the factor that finally tips the scales.
Standard of proof and nature of evidence: lowered evidentiary thresholds?
Looking at the evolving decisional practice of the CCI, in the context of determining whether an agreement exists, a rather interesting pattern emerges. As noted earlier, the CCI has moved towards a lower standard of proof in judging the existence of cartels, ie, from ‘beyond reasonable doubt’ to ‘balance of probabilities’. At the same time, the CCI has started to examine evidence, especially economic evidence, in a much more detailed and sophisticated manner.
Observing the two trends, it appears that the increased risk of being held guilty for cartelisation due to the CCI’s reliance on ‘balance of probabilities’ as the standard of proof may to some extent have been offset by the more nuanced scrutiny of both economic and conduct-based evidence.
Punishments for cartelisation: trends
The Competition Act prescribes significant penalties for the violation of its provisions. In the case of cartels, the CCI may impose a penalty of up to either three times the total profits of the enterprise responsible for the contravention or 10 per cent of the turnover of such an enterprise for each year of the continuance of the agreement, whichever is higher. Turnover is defined to include value of sale of goods or services. An ‘enterprise’13 is the legal entity within which an economic activity is undertaken, including its units, divisions and subsidiaries. Consequently, when the penalty is computed on the basis of an enterprise’s turnover, the resultant amount is usually substantial.
The CCI has come a long way since its first cartel decision (published in May 2011), when three associations of film producers got away with a mere slap on the wrist.14 Despite seemingly concrete evidence of meetings and written instructions to orchestrate a coordinated boycott, some of the biggest names in the Indian film industry were asked to pay nominal fines (FICCI–Multiplex Association case). However, the CCI has taken a stricter approach in subsequent decisions. For example, large fines were imposed on cement manufacturers involved in the cement cartel case in June, 2012. The CCI has also passed cease and desist orders without imposing a penalty such as in the Orissa Concrete and Allied Industries case.15 The CCI has also begun examining the possibility of penalising persons responsible for the conduct of the company during the period of violation, such as in the Chemists and Druggists Association, Goa case.16 Here again though, what factors would lead to individual liabilities are not clear from the CCI’s decisional practice.
What has been rather uncertain so far, and worryingly so, is the lack of any statutory or decisional guidelines on determining the quantum of penalty to be imposed. However, COMPAT quite recently introduced the concept of ‘relevant turnover’ to Indian competition law jurisprudence17 in the aluminum phosphide cartel case. COMPAT criticised the CCI’s approach in fixing the quantum of penalty at 9 per cent of the average turnover for the previous three years on each of the appellants. COMPAT held that since the CCI has an adjudicatory role, it must not only give reasons while imposing penalties but must also consider all relevant factors, including the financial health of the company and the likelihood of the company being closed down due to harsh penalty before ruling on the quantum of penalty. The judgment also reiterated the doctrine of proportionality while imposing penalties and in doing so, the COMPAT upheld the quantum of penalty at 9 per cent for two of the three appellants; but for the third appellant, it reduced the penalty by 90 per cent because its production capacity was not comparable with the other two appellants.
Finally, COMPAT accepted the contention of the appellants that being multi-product companies, only the ‘relevant turnover’ ought to be considered while imposing the penalty. COMPAT described the relevant turnover as one generated from the product under investigation (in this case aluminium phosphide tablets), rather than the turnover of the entire multi-product enterprise in question. Accordingly, it held that only the turnover from sale of aluminum phosphide tablet was ‘relevant’ because ‘the other products of those companies have no connection and do not depend upon the product involved in this matter, that is ALP tablets’.
This decision of COMPAT appears to have hurt the CCI’s cartel enforcement efforts and seemingly runs counter to the plain language of the statute itself. If upheld, then it is quite likely that several other cartel decisions by the CCI would be contested on grounds of the calculation of the quantum of penalty. For a new regulator such scrutiny perhaps does not augur well, particularly since its enforcement efforts have been relatively constrained and it continues to struggle to create adequate incentives to promote the use of its leniency programme.
Similar to other jurisdictions, the Competition Act also contains leniency provisions, which are aimed at inducing cartel participants to break rank and provide information on cartels. The CCI has the power to impose lower penalties if a cartel participant has made a disclosure which is full, true and vital to bust the cartel. To implement the provisions of the Competition Act, the CCI formulated the Competition Commission of India (Lesser Penalty) Regulations (Lesser Penalty Regulations) that came into effect from 13 August 2009.
The Lesser Penalty Regulations provide for a reduction in penalty based on the sequence in which cartel participants approach the CCI. The first cartel member to approach the CCI may get a waiver of up to 100 per cent of the penalty amount; the second member may get its penalty reduced by up to 50 per cent; and the third by up to 30 per cent. However, there have been very few, if any, publicised instances of the use of the leniency provisions. One possible reason as to why leniency pleas have yet to gather momentum could be the significant discretion vested with the CCI in deciding whether to grant leniency to an applicant. The information disclosed by the applicant has to be ‘vital’, ie, it must allow the CCI to form a prima facie view on a cartel’s existence, before leniency can be granted. This uncertainty in the grant of leniency might be deterring enterprises from using the leniency mechanism. The lack of leniency pleas may also be grounded in cartel members simply considering the risk of detection very low. However, this may change with the upcoming changes in the cartel enforcement regime.
The CCI and evidence on cartels: what next?
So far, the CCI has generally been faced with copious circumstantial evidence on the existence of cartels. However, as the competition law regime in India matures, cartel participants will resort to more sophisticated means, and the CCI will be required to employ other tactical methods of investigation and enforcement. Internationally, dawn raids are a popular method for cartel discovery and enforcement. Thus far, the CCI has yet to deploy its dawn raid powers, but with the enhanced powers of search and seizure that may be conferred to the DG under the Competition (Amendment) Bill, 2012 (the Bill), dawn raids may become a popular tool for the CCI.
The current text of section 41 of the Act already empowers the CCI’s investigative arm, the DG, to carry out ‘search and seizure’ operations (commonly known as ‘dawn raids’). However, the DG appears reluctant to use its powers under section 41 of the Competition Act, and this provision remains largely unutilised. The Bill makes certain small but important changes to the procedure with regard to dawn raids, namely the following:
- The Bill empowers the chairperson of the CCI to sanction dawn raids. This power at present vests with the lower judiciary and is perceived by many commentators as one of the key reasons why the CCI has not yet been able to conduct dawn raids.
- The Bill increases the trigger points for conducting dawn raids. The current text of section 41 of the Competition Act empowers the DG to carry out dawn raids only when it considers that certain evidence is likely to be destroyed, mutilated, altered, falsified or secreted. The Bill expands the trigger point for conducting dawn raids to also include instances where, in the DG’s view, a person or enterprise has omitted or failed to provide the information or produce documents as required by the notice; or would not provide such relevant information.
- The Bill empowers the DG to record statements of a wider group of people. The current text of the Competition Act empowers the DG to record statements (under oath) of only past and present officers, employees or agents of the company under investigation. To record the statement of any other person, the DG requires the express prior permission of the CCI. On the other hand, the Bill permits the DG to record statements (under oath) of all persons having knowledge of such information or documents that it thinks are being withheld or are likely to be destroyed.
The proposed amendments to section 41 of the Competition Act, if cleared by the Indian Parliament, may possibly give a fillip to the CCI’s cartel enforcement efforts.
A review of the CCI’s decisions in cartel cases over the last four years indicates considerable progress towards more sophisticated analysis of economic evidence. The CCI has tended to give primacy to conduct-based evidence over economic evidence. Once a cartel has been found, the CCI has moved towards imposing significant, deterrent penalties. Admittedly, the recent COMPAT order introducing the criterion of ‘relevant turnover’ in calculating penalties seems to run counter to the CCI’s approach. The CCI is very likely to appeal against the COMPAT’s order in the Supreme Court of India and the issue is far from resolved. The leniency regime has yet to kickstart effectively but that may change with the proposed changes to the competition regime which are set to widen the investigative powers of the CCI.
- Investigations against abuse of dominance may also be initiated in a similar fashion.
- In re: All India Tyre Dealers’ Federation v Tyre Manufacturers, MRTP Case: RTPE No. 20 of 2008.
- Neeraj Malhotra v Deutsche Post Bank Home Finance Limited & Ors, Case No. 5/2009.
- Shailesh Kumar v M/s Tata Chemicals Ltd & Ors, Case No. 66 of 2011.
- Reference Case No. 01 of 2012.
- Vijay v Laxman & Anr on 7 February 2013, Criminal Appeal No. 261/2013, arising out of SLP (Crl.) 6761/2010.
- See In re: All India Tyre Dealers’ Federation v Tyre Manufacturers, MRTP Case: RTPE No. 20 of 2008, Builders Association of India v Cement Manufacturers’ Association & Ors, Case No. 29/2010.
- Builders Association of India v Cement Manufacturers’ Association & Ors, Case No. 29/2010.
- However, it must be noted that relying on both economic and conduct-based evidence does not mean that both kinds of evidence are of the same persuasive value.
- In re: Aluminium Phosphide Tablets Manufacturers, suo motu Case No. 02/2011.
- A Foundation for Common Cause v PSE Installations Pvt Ltd & Ors, Case No. 43 of 2010.
- Coal India Limited v Gulf Oil Corporation Ltd, Case No. 06/2011.
- See section 2(h) of the Competition Act.
- FICCI – Multiplex Association of India v United Producers/Distributors Forum, Case No. 01 of 2009.
- Re: Reference Case No. 05 of 2011 by Shri B P Khare, Principal Chief Engineer, South Eastern Railway, Kolkata v Orissa Concrete and Allied Industries Ltd and Ors, Ref. Case No. 05 of 2011.
- Varca Druggist & Chemist & Ors v Chemists & Druggists Association, Goa, In Re: MRTP Case No. C-127/2009/DGIR (4/28).
- M/s Excel Crop Care Limited v CCI & Ors, Appeal No. 79 of 2012; M/s United Phosphorus Limited v CCI & Ors, Appeal No. 81 of 2012; M/s Sandhya Organic Chemicals (P) Limited v CCI & Ors, Appeal No. 80 of 2012.