India: Competition Commission
The Competition Commission of India (the Commission) is a regulatory body established under the Competition Act 2002 (the Act) with the duty to eliminate practices that have adverse effects on competition, to promote and sustain competition, to protect the interest of consumers, and to ensure freedom of trade carried on by other participants in market in India.1 To enforce its duties, it has been given powers under the Act to inquire into any agreement, abuse of dominant position and combinations that cause or are likely to cause an appreciable adverse effect on competition (AAEC) in India. Also, it has extra-territorial jurisdiction to inquire and pass orders in such agreement or abuse of dominant position, or combination that has taken place beyond the territory of India but has impact on competition within India.2 The Commission consists of people having expertise in the field of competition law including the chairperson and the members.
The Commission started functioning and enforcing the antitrust provisions of the Act in the year 2009. During the past eight years, the Commission has strived to build a culture of competition in markets through effective enforcement of the law and proactive outreach. The task, no doubt, is arduous, given that the scope of the Competition Act is overarching with a cross-sector and pan-India mandate. Between May 2009 until December 2017, the Commission has received 935 antitrust cases alleging anticompetitive agreement or abuse of dominant position, out of which 707 cases have been disposed of.3 Most of the antitrust cases were received from the real estate sector followed by financial services, information and broadcasting, etc.
Since its enforcement, the Commission has passed through various phases calling for changes in the jurisprudence of competition law. Also, 2017 has witnessed various economic reforms that have the potential to transform the crucial macro aspects of the Indian economy. Measures such as the Goods and Service Tax (GST); bankruptcy code; increasing use of the Jan Dhan-Aadhaar-Mobile (JAM) trinity;4 and demonetisation5 have changed the entire business environment. While demonetisation was thought to be necessary to realign the incentive structures, GST is slated to achieve various economic goals in one stroke, such as:
- promoting the manufacturing sector;
- boosting exports by making production more competitive;
- creating more jobs;
- improving the investment climate;
- cutting down tax evasion; and
- lowering the compliance cost to businesses.
The Commission is conscious of the larger policy milieu and is carefully gauging its implications for markets as they unfold.
During the year, the competition law has seen development in context of various long-standing unsettled legal concepts. In the milestone judgment of Excel Care Crop Ltd,6 the Supreme Court of India decided some imperative issues such as the term ‘process for bidding’. This would cover every stage of bidding process starting from notice inviting tender until the award of the contract, and would also include all the intermediate stages such as pre-bid clarification and bid-notification. Henceforth, the Commission and the director general have the jurisdiction to inquire into a matter of bid-rigging where tender pertains to the year when the antitrust provisions of the Act were not enforced, but the whole bidding process continued and reached a conclusion only after the coming into force of those provisions. Furthermore, the Supreme Court also clarified the matter of ‘turnover’ by holding that the concept of ‘total turnover’ may bring out inequitable results; when the agreement involves one product, there seems to be no justification for including other products of an enterprise for the purpose of imposing penalty. Applying the doctrine of ‘proportionality’, the Court observed that the penal provision of the law acts as deterrence to others and such a purpose can adequately be served by taking into consideration the relevant turnover and not the total turnover.
Based on the above judgment, the Commission passed its first order on 14 June 2017 in two cases involving Hyundai Motor India Ltd.7 The Commission found Hyundai India to be in contravention of the Competition Act 2002 by imposing conditions upon its dealers which resulted into resale price maintenance in sale of passenger cars manufactured by it. Such arrangements included monitoring of the maximum permissible discount levels through a discount control mechanism. Further, Hyundai was found to have mandated its dealers to use recommended lubricants/ oils and penalising them for use of non-recommended lubricants and oils. Apart from issuing a cease-and-desist order against Hyundai, the Commission imposed a penalty of 870 million rupees upon Hyundai for anticompetitive conduct. This is 0.3 per cent of its average relevant turnover for preceding three years.
The lesser penalty provision or leniency provisions helps penetrate the cloak of secrecy and uncover evidence that is vital for detection and conviction of a cartel. It helps in busting cartels by getting information from the party or parties to the cartel. The Commission, on 18 January 2017, passed its first order under section 46 of the Act and under its Competition Commission of India (Lesser Penalty) Regulations 2009, giving benefit of lesser penalty in the case of Cartelization in respect of tenders floated by Indian Railways for supply of Brushless DC Fans and other electrical items.8 The Commission has given a 75 per cent reduction in the penalty imposed on M/s. Pyramid Electronics and its office bearer Sh. Sandeep Goyal. The case related to bid-rigging of a tender floated by the Indian Railways and the Bharat Earth Movers Limited for the supply of Brushless DC fans and other electrical items.
The Commission, in 2017, also introduced certain amendments in Competition Commission of India (Lesser Penalty) Regulations 2009. It has increased the scope of ‘applicant’ by allowing an individual, who has been involved in cartel on behalf of an enterprise and wants to submits an application for lesser penalty, to apply before the Commission. The applicant may be granted the benefit of a reduction in penalty up to or equal to 100 per cent if the applicant is the first to make a vital disclosure by submitting evidence of a cartel. The subsequent applicants may also get the benefit of a reduction in penalty depending upon the priority status marked to them.9
The other important judgment was passed by the Delhi High Court in two writ petitions filed by Somi Conveyor Beltings10 and Premier Rubber Mills Ltd,11 challenging the constitutionality of regulations 35 and 37 of the Commission’s General Regulations 2009 and regulation 6 of Lesser Penalty Regulations, 2009. The writ petitions were related to the order passed by the Commission on 6 November 2013 under section 26(1) of the Act. The allegation made against the petitioners was that they have been indulging in bid-rigging in the conveyor belt sector in India and also indulged in the exchange of the commercial and confidential price-sensitive information among themselves prior to submission of bids. The Court disposed of the petitions, vide order dated 11 April 2017, while upholding the constitutionality of regulations 35 and 37 of the Competition Commission of India (General Regulations) 2009 and regulation 6 of Lesser Penalty Regulations.
Besides above, the Commission has passed orders in several other imperative matters such as the Board of Control for Cricket in India (BCCI) case,12 where the Commission passed its first order on 8 February 2013 finding the conduct of BCCI abusive. However, the case was set aside by the Appellate Tribunal on the grounds of violation of principles of natural justice and was remitted back to the Commission for fresh disposal. In the fresh dealing, again, the Commission concluded that the representation and warranty given by BCCI in the Indian Premier League Media Rights Agreement and rule 28(b) of the BCCI Rules amounted to denial of market access for organisation of professional domestic cricket leagues/ events in India, in contravention of section 4(2)(c) of the Act. The Commission also dealt with the issue that whether BCCI is an enterprise or not and concluded that BCCI is an enterprise under the Act as it is a society registered under the Tamil Nadu Societies Registration Act 1975 and is, hence, a ‘person’. Also, the members of International Cricket Council, including BCCI, generate income through cricket and for such purpose they partner with other entities and these activities are economic in nature as define under section 2(h) of the Act.
The Commission is also empowered to inquire into matters referred to it by the central government or the state governments. The Commission, in 2017, received a reference by Delhi Jal Board against Grasim Industries Limited, Aditya Birla Chemicals (India) Limited, Gujarat Alkalies and Chemicals Limited and Kanoria Chemicals and Industries Limited alleging contravention of the Act. On investigation and hearing, the Commission found the alleged parties in contravention of section 3(3)(d) of the Act as there was an understanding between the parties in respect of a tender floated by Delhi Jal Board between 2009–10 and 2014–15 for procurement of liquid poly-aluminium chloride.13
Combinations in the form of mergers and acquisitions are an inorganic method of growing a business entity. This growth may have a positive or negative impact on the market and the economy. However, following the objective of the ‘Liberalization, Privatization and Globalization’ (LPG) policy, combinations cannot be restricted until or unless they cause, or are likely to cause, an appreciable adverse effect on competition in the market. Therefore, the Act regulates combination on ex ante basis. The provisions related to combinations came into effect on 1 June 2011 with the establishment of The Competition Commission of India (Procedure in regard to the transaction of Business relating to Combinations) Regulations 2011. Since then until December 2017, the Commission has received 542 notices out of which it has disposed of 536 notices. Most of the notices were received from finance sector followed by pharmaceuticals and health sector.
The government of India through the Ministry of Corporate Affairs issued major notifications related to combinations, such as:
- revision of de minimis exemptions;14
- exemption for notifying a transaction to the Commission within 30-day period from the specified trigger events;15
- exemption of regional rural banks from section 5 and 6 of the Act;16 and
- exemption of nationalised banks from section 5 and 6 of the Competition Act 2002.17
In 2017, the Commission received notices from enterprises and it has approved various mergers like the merger of Chennai Network Infrastructure Ltd with GTL Infrastructure Ltd. GTL Infrastructure Ltd is listed on Bombay Stock Exchange and National Stock Exchange, and is engaged in the business of providing passive infrastructure services to various telecom operators across India. Chennai Network Infrastructure Ltd is a public company incorporated in India and an associate company of GTL Infrastructure Ltd, and is also engaged in the business of providing passive infrastructure services to various telecom operators in 17 telecom circles in India. They are both registered with the Department of Telecommunications (DOT) as an Internet Protocol-I service provider. The Commission took into account that there are more than 600 Internet Protocol-I service providers registered with the DOT, indicating that there is no significant legal or regulatory barriers to enter into the business of providing passive infrastructure services.
Another merger approved by the Commission is of the acquisition of global printer business of Samsung Electronics Co Ltd by Hewlett Packard (HP) Inc. HP is a global provider of products, technologies, software, solutions and services. It is engaged in manufacture, distribution and sale of computing products and associated services and solutions; and distribution and sale of printing products and associated services and solutions. Samsung, incorporated under the laws of the Republic of Korea, is inter alia, engaged in selling mobile devices, memory/storage devices and televisions/home entertainment systems. The parties don’t have any manufacturing facilities for printers in India. The Commission observed that the printer manufacturers are able to switch production across various segments of regular format printers in the short term and without incurring significant incremental cost. The Commission also noted that the regular format printers segment is characterised by the presence of other major players in India – namely, Canon, Epson, Ricoh and Konica Minolta – having significant market shares. In view of the foregoing, the Commission did not find the proposed combination to raise any appreciable adverse effects on competition in regular format printers business in India. Accordingly, the Commission approved the proposed acquisition under the Act.
The Commission aims to promote a culture of competition compliance by creating awareness about the benefits of complying with competition law. It believes that imposition of fines and penalties alone would not help in achieving effective compliance. In order to achieve it, the dynamics of competition needs to be understood and fostered at the unit level of an enterprise. To help the enterprise in developing a competition culture at their premises, the Commission has developed a ‘Compliance Manual for Enterprises’, which was launched on the occasion of its eighth Annual Day function on 20 May 2017. The manual acts as a guidance material for the enterprise and lists out various provisions of competition law and the ‘dos and don’ts’ list. It guides the enterprise on preventive compliance, compliance during investigation and compliance post-sanctions. With the help of the manual, the Commission anticipates that enterprises will be able to adhere to the nuances of competition law and that this will strengthen and foster a strong culture of compliance at their premises. This will in turn increase the competitiveness of the economy. Elsewhere, the Commission will also continue to promote awareness about competition law and would always be within the reach of enterprises for inspiring them to be fair and competitive.
The Act delegates a duty to the Commission to maintain its relations with foreign competition agencies by entering into memorandum or agreement with them.18 In view of this, the Commission has been deepening its engagement with key jurisdictions by way of signing memoranda of understanding to facilitate mutual cooperation. Until now, the Commission has entered memoranda of understanding with six jurisdictions, namely:
- the Federal Antimonopoly Service (Russia);
- the Federal Trade Commission and Department of Justice (USA);
- the Australian Competition and Consumer Commission;
- the Directorate General for Competition of the European Commission;
- the Competition Bureau (Canada); and
- recently with BRICS competition authorities.
In 2017, the Commission participated in:
- the International Competition Network (ICN) Annual Conference held from 10th–12 May 2017 in Porto, Portugal
- the seventh St Petersburg International Legal Forum during 16–20 May 2017 in St Petersburg, Russia;
- a workshop on Competition Law in Pharmaceutical Sector during 23–25 May 2017 in Sydney, Australia;
- a seminar by the Economic Institute for Competition Enforcement Officials during 18–23 June 2017 in Melbourne, Australia; and
- the Organisation for Economic Co-operation and Development Competition Committee meeting during 19–23 June 2017 in Paris, France.
Since its establishment, the Commission has optimally enforced the provisions of the Act and is looking further to effectively administer its new manual on competition compliance by the enterprises. In 2018, the Commission, being a member of ICN, is hosting ICN Annual Workshop in March in New Delhi, India. It has worked on the ICN Special Project 2018 on Cartel Enforcement and Competition. Elsewhere, the Commission is organising its third National Conference on Economics of Competition Law on 5 April 2018 in New Delhi, India.
1 See section 18, the Competition Act, 2002.
2 See section 32, the Competition Act, 2002.
3 Figures are as of 31 December 2017.
4 An initiative taken by the government of India to link Jan Dhan accounts (No Frills Account), mobile numbers and Aadhaar cards (12-digit unique identity number) of Indians to plug the leakages of government subsidies. It was proposed in the Economic Survey of 2014-15.
5 Reserve Bank of India had on 8 November, 2016 demonetised 1000 rupees and 500 rupees denominations of currency note and replaced them with new notes of 500 rupees and 2000 rupees.
6 Excel Crop Care Ltd v Competition Commission of India & Anr (C.A. No. 2480/2014) [(2017) 8 Supreme Court Cases 47] [(2017) SCC OnLine SC 609].
7 Fx Enterprise Solutions India Pvt Ltdv Hyundai Motor India Limited (Case No. 36/2014); and, St Antony’s Cars Pvt Ltd v Hyundai Motor India Limited (Case No. 82/2014).
9 See Regulation 4(c), Competition Commission of India (Lesser Penalty) Regulations 2009, as amended by Competition Commission of India (Lesser Penalty) Amendment Regulations, 2017.
10 Somi Conveyor Beltings Ltd. & Anr v Union of India & Ors (W.P. No. 1416/2016) [2017 SCC OnLine Del 7805] [(2017) 242 DLT 220 (DB)]
11 Premier Rubber Mills v Union of India & Ors (W.P. No. 1969/2016) [2017 SCC OnLine Del 7805] [(2017) 242 DLT 220 (DB)].
12 Surinder Singh Barmi v The Board of Control for Cricket in India (Case No. 61/2010).
13 (Ref. Case No. 03/2013) Delhi Jal Board v Grasim Industries Ltd & others and (Ref. Case No. 04/2013) Delhi Jal Board v Grasim Industries Ltd & others.
14 Notification dated 27 March 2017 (available at: www.mca.gov.in/Ministry/pdf/Notification_30032017.pdf).
15 Notification dated 29 June 2017 (available at: www.mca.gov.in/Ministry/pdf/Notification_30062017.pdf).
16 Notification dated 10 August 2017 (available at: www.mca.gov.in/Ministry/pdf/Notification2561(E)_21082017.pdf).
17 Notification dated 30 August 2017 (available at: www.mca.gov.in/Ministry/pdf/Notification_31082017.pdf).
18 See Proviso to section 18, the Competition Act 2002.