I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY
The Competition Commission of India (CCI),2 established under the Competition Act 2002 (Competition Act), has only been discharging its enforcement functions for the past 10 years,3 yet it has had a significant impact on India's competition regulatory framework, considering that conduct of enterprises (publicly or privately owned, multinationals or small and medium-sized enterprises) across various sectors has been indiscriminately scrutinised and, where needed, penalised.
The Competition Act has had a ground-breaking impact on a wide gamut of enterprises (companies, associations, partnership firms, individuals) operating through different mediums (online, brick and mortar) in different levels of markets (manufacturers, wholesalers, distributors, retailers). The past year has seen important developments both on the legislative as well as the judicial front.
On the legislative front, the Competition Law Review Committee (Committee) constituted by the Ministry of Corporate Affairs (MCA) to review the Competition Act, Competition Rules and Competition Regulations in view of the changing business environment issued a report in July 2019 recommending amendments in the regulatory architecture of the CCI, function of the CCI, definitions provided in the Competition Act, sections relevant to anticompetitive agreements, inquiry procedure and penalty, unilateral conduct by dominant enterprises, combinations, and competition advocacy. The Committee also made recommendations on how competition law should deal with technology and new age markets.4 One of the recommendations of the Committee regarding a Green Channel route for certain combinations has already been implemented by the CCI by way of amendment to the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations 2011 (CCI Combination Regulations).5 The CCI further amended the CCI Combination Regulations to increase the amount of fee payable along with the notice in Form I to 2 million rupees and Form II to 6.5 million rupees.6 Interestingly, the CCI has invited public comments on a proposed draft amendment to the CCI Combination Regulations regarding the purchase of shares pursuant to a public bid or a stock exchange that would allow the acquirer to notify the CCI after the acquisition of the shares.7
Additionally, the CCI has also recently undertaken an amendment to the Competition Commission of India (General) Regulations 2009 (CCI General Regulations) so as to include in the information or reference filed by the informant details of litigation or disputes pending between the informant and parties before any court, tribunal, statutory authority or arbitrator involving the subject matter of the information. The amendment allows the CCI to disclose the identity of the informant where it is expedient for the purposes of the Act after giving the informant an opportunity to be heard. It has put a time limit of 30 days to appeal to the CCI from the receipt of the order passed by the Director General (DG) rejecting the request to treat a document as confidential. The amendment also brings changes to the fee payable for filing information under clause (a) of sub-section (1) of Section 19 of the Competition Act.8
The CCI conducted a market study on e-commerce in India that aimed to gather qualitative information and insights from market participants and covered mobile phones, electric appliances, lifestyle products, groceries, hotels and food order and delivery within its scope. The stakeholders in the study included retailers, manufacturers, online marketplace platforms, service providers and payment systems. The CCI issued the interim observations of the market study; however, the final market study has not been released yet.9
Besides the above legislative developments, last year witnessed various important decisions passed by the Supreme Court of India (Supreme Court), high courts and the CCI.
The Supreme Court decided certain important cases on substantive issues under the Competition Act that provide important guidance for the CCI in its functioning.
In Competition Commission of India v. JCB India Ltd. and Ors.,10 the Supreme Court vacated the order of injunction by a single judge of the Delhi High Court regarding the powers of search and seizure given to the DG under Section 41(3) of the Competition Act. The Delhi High Court held that an authorisation by the Chief Metropolitan Magistrate to search does not authorise the DG to carry out seizure or any other activity. The Supreme Court overturned the finding of the High Court on interpretation of Section 240A of the Companies Act 2013 stating that unless seizure is authorised, a mere search would not be sufficient for the purposes of the investigation. The Supreme Court stated that the blanket ban imposed by the High Court on using the seized material was not warranted and remitted the petition back to the High Court.
In a significant decision regarding predatory pricing, the Supreme Court dismissed an appeal filed by Uber India Systems Pvt. Ltd. (Uber) and upheld the order of the Competition Appellate Tribunal (COMPAT) directing the DG to conduct an investigation into allegations against Uber for abuse of dominance.11 The Supreme Court relied on clause (ii) of Explanation (a) to Section 4 of Competition Act to state that if Uber operated at a loss for the trips it made, it would affect Uber's competitors or the relevant market in Uber's favour establishing prima facie dominance. For abuse of dominance, the Supreme Court stated that as long as Uber in a dominant position imposes unfair prices, including predatory pricing, abuse of dominance is also applied.
The Delhi High Court in Mahindra & Mahindra Ltd. & Ors. v. Competition Commission of India & Anr.,12 held that the CCI is a quasi-judicial tribunal when issuing final orders, directions or penalties. The High Court decided on the constitutionality of certain provisions of the Competition Act. The High Court held that Section 22(3) of the Competition Act is void as it gave a casting vote to the chairperson of the CCI, which is against the principle of equal weight for decisions of each participant of a quasi-judicial tribunal. In this judgment, the High Court also held that the presence and participation of a judicial member is necessary when adjudicatory orders are made by the CCI. Currently, an appeal is pending in this case at the Supreme Court.13
This point regarding presence and participation of a judicial member was clarified through another order of the Delhi High Court wherein the court held that while the presence of a judicial member is required, the CCI is not precluded from performing its adjudicatory functions until the judicial member is appointed by the central government.14 The court also relied on Section 15 of the Competition Act to state that the orders passed by the CCI cannot be called into question on account of any vacancy or defect in the constitution of the CCI.
The Delhi High Court issued another significant decision in Competition Commission of India v. Grasim Industries Ltd.,15 regarding the investigative powers of the DG. The court held that the DG was within the scope of its powers in submitting a report on alleged violations of Section 4, although the direction issued by the CCI under Section 26(1) of the Competition Act was with reference to information pertaining to violation of Section 3(3) of the Act.
In M/s Rajasthan Cylinders & Containers Ltd. v. Competition Commission of India,16 the High Court dealt with the challenge to non-compliance criminal proceedings initiated by the CCI under Section 42(3) of the Competition Act. The court decided not to interfere with the proceedings, stating that such proceedings can be initiated by the CCI if there is non-compliance with orders or directions, including non-compliance with an order to pay a penalty whether issued by the CCI or the DG. The court also did not accept the double jeopardy argument in the criminal proceedings by distinguishing between civil penalty under Section 43 and criminal proceedings under Section 42(3) for failure to comply with orders or directions of the CCI.
Other relevant decisions of the Delhi High Court include holding that the DG's report is non-binding on the CCI17 and that interest is required to be paid on the penalty imposed by the CCI for the period for which the penalty was stayed after the stay is lifted as the interest on such penalty is a statutory levy.18
The Supreme Court upheld the decision of the High Court of Judicature in Bombay in Competition Commission of India v. Bharti Airtel Limited & Ors,19 clarifying that the principles of law laid down in the judgment apply to in personam disputes between the parties and set aside the impugned order of Telecom Regulatory Authority of India (TRAI) by stating that it first needs to render a finding on the disputes before the CCI can investigate it.20
In discharging its functions, the National Company Law Appellate Tribunal (NCLAT), has also rendered some important decisions. NCLAT dismissed an appeal against an order of the CCI under Section 26(1) dismissing a request for interim relief under Section 33 in a case involving bid-rigging in a tender for textbook printing as the process of printing had already commenced.21
The NCLAT, recently, concluded hearing and reserved judgment in an appeal filed by All India Online Vendors Association against an order of the CCI holding that no case of contravention of Section 4 was made against Flipkart India Private Limited.22
Currently, NCLAT is also hearing an appeal23 against an order passed by the CCI where Google was found to have abused its dominant position and a penalty of 1.35 billion rupees was imposed on it (by the CCI). During the pendency of the appeal, NCLAT has passed an interim order24 staying the operation of the CCI order in certain respects subject to Google depositing 10 per cent of the penalty imposed by the CCI.
Further, the CCI itself revealed its evolution by continuing to pass various orders imposing penalties on enterprises for indulging in anticompetitive activities in violation of Section 3 (anticompetitive agreements having an appreciable adverse effect on competition in India) and Section 4 (abuse of dominant position) of the Competition Act.
The CCI passed the third leniency order in the case of a cartel fixing prices of zinc-carbon dry cell batteries in India.25 Panasonic Energy India Co Limited received a 100 per cent reduction in the penalty under Section 46 of the Competition Act, whereas Godrej and Boyce Manufacturing Co Limited was fined approximately 8.5 million rupees without any reduction in penalty. The CCI passed another leniency order in In Re: Cartelisation in the supply of Electric Power Steering Systems26 wherein the first applicant, NSK Limited, Japan, received a 100 per cent reduction in the penalty and the second applicant, JTEKT Corporation, Japan, received a 50 per cent reduction in the penalty. The CCI imposed a penalty on 51 LPG cylinder manufacturers for bid-rigging in tenders floated by Hindustan Petroleum Corporation Ltd27 and three information technology enterprises for bid-rigging in tenders floated by Pune Municipal Corporation.28
The CCI recently passed a significant prima facie order under Section 26(1) regarding the determination of the relevant market in a case involving MakeMyTrip India Pvt. Ltd and Oravel Stays Private Limited.29 The CCI stated that in platform markets, where there may be different sets of consumers, the consumers for which the relevant market is being defined must be identified. As the consumers in this case were the hoteliers, the market analysis was carried out from the perspective of hoteliers.
Among other orders of the CCI dismissing any information filed at the prima facie stage under Section 26(2) of the Competition Act, the order regarding that alleged the formation of a cartel between multiplex cinema theatre groups is notable.30 The CCI reiterated that alleged parallel conduct by itself does not amount to concerted practice and more factors need to be shown by the informant to trigger an investigation by the DG.
So far this year, the CCI has passed eight orders imposing penalties for anticompetitive conduct.31 In addition to the above, various inquiries have been initiated by the CCI against enterprises in the following sectors:
c airport infrastructure;34
e sports;36 and
II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT
Private antitrust actions are governed by the Competition Act38 and the regulations framed therein.39 The provisions of the Competition Act do not bar the application of any other law.40 However, the Competition Act expressly bars the civil courts from accepting any suits or proceedings in respect of any matter that the CCI or NCLAT is empowered to determine, which, in the case of NCLAT, includes compensation applications by aggrieved parties.41
Section 19(1) read with Section 26(1) of the Competition Act empowers the CCI to initiate inquiries (through investigation by the DG) into anticompetitive agreements or abuse of dominant position of an enterprise either on its own motion or upon receipt of information from any person, consumer or their associations or trade association or on reference from central or state government or a statutory authority.42
Although there is no legislative no provision in this regard, the High Court of Delhi by way of a decision43 has held that the CCI has an inherent power to recall or review (based on certain specified grounds) an order passed by the CCI under Section 26(1) of the Competition Act initiating an investigation.
The Competition Act empowers the DG to investigate contraventions when directed by the CCI upon formation of a prima facie view. In this regard, the Competition Act grants the DG with certain powers44 such as summoning and enforcing attendance if any person and examining him on oath, requiring discovery or production of documents, receiving evidence on affidavit, issuing commissions for the examination of witnesses or documents, carrying out search and seizure operations (or dawn raids). However, DG's powers, though wide are supposed to be exercised with caution. In 2016, COMPAT45 set aside the order of the CCI observing that the DG as well as CCI should not be blinded by the statement made by parties during investigation and veracity of such statements must be independently tested by DG and CCI.46
At the conclusion of an inquiry, the CCI can pass an order under Section 27 of the Competition Act, inter alia, imposing a penalty on the contravening enterprise. In the interim, Section 33 of the Competition Act empowers the CCI to pass interim orders restraining alleged anticompetitive conduct until the inquiry is concluded or further orders are issued.47 As per a leading decision of the Supreme Court48 interpreting Section 33, this power has to be exercised by the CCI 'sparingly and under compelling and exceptional circumstances'. Additionally, the CCI, while recording a reasoned order in this regard, inter alia:
a should record its satisfaction (which has to be of a much higher degree than the formation of a prima facie view under Section 26(1) of the Competition Act) in clear terms that an act in contravention of the stated provisions has been committed, and continues to be committed or is about to be committed;
b should, as a necessity, issue an order of restraint; and
c from the record before the CCI, show that it is apparent that there is every likelihood of the party to the lis suffering irreparable and irretrievable damage, or there is a definite apprehension that it would have adverse effect on competition in the market.
The CCI also has the power to impose a lesser penalty, in enforcement proceedings, where 'full, true and vital disclosures' are made by a person cooperating with a cartel investigation.49
An application for compensation (arising from findings of CCI or findings of NCLAT) can be made before NCLAT under Section 53N of the Competition Act. Furthermore, an application can be made to NCLAT under Sections 42A and 53Q(2) for recovery of compensation from any enterprise for any loss or damage shown to have been suffered as a result of the contravention of the orders of the CCI or NCLAT.
At present, NCLAT has six compensation applications50 pending before it that have been filed by parties under Section 53N of the Competition Act. However, NCLAT is yet to render a final view on those applications.
The limitation period for an appeal before NCLAT is prescribed by the Competition Act. Section 53B provides that any person aggrieved by a CCI order51 can file an appeal before NCLAT within 60 days of the communication of the order's issuance. Further, an appeal can be made to the Supreme Court of India against the orders passed by NCLAT within 60 days of the communication of the order passed by NCLAT.52 Since the Competition Act is silent on the limitation period applicable to filing of an application for compensation, the doctrine of laches would prohibit the parties from bringing an action after an unjustifiable and unreasonable delay.53 However, if the information filed by the informant is in the nature of a continuing violation, the limitation period would not bar the filing of such information.54
Article 245(2) of the Constitution of India provides that no law made by the Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation. Further, Section 32 of the Competition Act provides the CCI with the power to inquire into activities having an adverse effect on competition in India, even though the enterprise or party is outside India or the practice arising out of an anticompetitive agreement or abuse of dominant position has taken place outside India. Section 18 of the Competition Act, implicitly, also empowers the CCI to enter into any memorandum of understanding (MoU) or arrangement with any agency of any foreign country, with the prior approval of the Central Government. Additionally, the Competition Act exempts agreements that relate exclusively to the production, supply, distribution or control of goods or the provision of services for export.55 The issue of the extraterritorial jurisdiction of the CCI was a subject of dispute in the inquiries initiated against Google Inc56 by the CCI. Although not giving any specific finding on this aspect, the CCI seems to have imposed a penalty based on the sales of Google Inc (along with that of its Indian subsidiary) from their India operations. Additionally, the CCI in a number of cases57 has made parent companies parties to proceedings before the CCI, and in certain cases58 has called foreign officials for the recording of their statements. Interestingly, in a recent case,59 the CCI held that an alleged anticompetitive agreement did not have an appreciable adverse effect on competition in India because almost the entire quantities of the goods in question were being exported.
The Competition Act allows any person to give information to the CCI regarding an alleged contravention, the proceedings are not considered to be a private dispute and the informant's role is generally considered to be a medium of information for the CCI. When information is filed under Section 19(1)(a) of the Competition Act and the CCI is of the opinion that a prima facie case of contravention of the Competition Act is made out, an investigation could be directed irrespective of whether an informant withdraws at a later stage.60 The identity of the informant can also be kept anonymous during the investigation, and the CCI has done so in various cases.61
However, more clarity is required regarding the position on the locus or the standing of an informant under the Competition Act. In a case pertaining to trade associations,62 COMPAT63 recognised that internal rivalry between different sections of a trade association can lead to the filing of motivated information that the CCI should be wary about. Likewise, in another case,64 COMPAT65 also acknowledged that business rivalry can influence competitors to make untrue allegations before the CCI, requiring the CCI to take a careful approach.
Any aggrieved party having suffered loss or damage in India (either because of anticompetitive activities or non-compliance with the CCI or NCLAT order) may file an application before NCLAT or the Supreme Court for compensation.66 Further, an enterprise (including a person, government or an association) may file an application (in the prescribed manner) before NCLAT for an award of compensation by establishing the loss or damage suffered by it.
V THE PROCESS OF DISCOVERY
The Competition Act does not provide for any pretrial discovery procedures. Any evidence collected by the DG of the CCI and used while preparing the investigation report is placed before the CCI and then made available to all the concerned parties, subject to the legitimate claim of confidentiality.67
Although the CCI has the power to regulate its own procedures, it must be guided by the principles of natural justice.68 Section 36(2) of the Competition Act empowers the CCI as well as the DG69 to exercise the same powers as are vested in the Civil Court under the Civil Procedure Code in respect of discovery and production of documents, requiring evidence on affidavit, issuing commissions for the examination of witnesses or documents and requisitioning of any public record or document or copy of such record or document from any office subject to the provisions of Section 123 and 124 of the Indian Evidence Act, 1872 (the Evidence Act). During the investigation, DG can seek information or documents and summon and conduct examination of parties including witnesses or third parties (i.e., parties that are not party to the case) on oath. The Evidence Act governs the admissibility of evidence including pre-existing evidence under Section 19(1), evidence from experts under Section 36(3), 36(4) and 36(5) and evidence from search and seizure procedure under Section 41(3). Categories of evidence admissible can be documentary, oral, economic and financial analysis.
The CCI (General) Regulations, 2009 also contain provisions on confidentiality,70 inspection of documents,71 taking of evidence,72 issue of summons73 and commissions for the examination of witnesses or documents.74 Further, there are several cases that are pending adjudication before the high courts on the issue of powers of the DG in relation to the rights of the parties during the process of investigation.75
VI USE OF EXPERTS
The CCI may call upon experts from the fields of economics, commerce, accountancy international trade or from any other discipline as it may deem fit for the purpose of conducting an inquiry.76 It may also engage an expert to assist it in the discharge of its functions.77 The CCI has also framed regulations to govern the procedure for its engagement.78 In this regard, the CCI has empanelled institutions and agencies with the CCI for conducting surveys or undertaking economic analysis of markets, or both. Additionally, the CCI has also empanelled institutions for the assessment of select upcoming or existing economic legislation and policies made by the Parliament, state legislature, ministries, departments of the central and state governments, and statutory authorities, from a competition perspective.79 Based on the assessment, the CCI may suggest, if necessary, appropriate modifications in the economic legislation or the policy.
VII CLASS ACTIONS
Section 19(1)(a) of the Competition Act empowers the CCI to inquire into alleged contraventions of provisions specified in Sections 3(1) or 4(1) either on its own motion or on receipt of information from any person, consumer, or their association or trade associations.80 In terms of compensation applications to be filed under Section 53N, Subsection (4) thereof clearly allows one or more persons to file an application for the benefit of other interested persons. Therefore class actions can be taken by consumer associations, trade associations, a body of individuals, a cooperative society, a Hindu undivided family, non-governmental association or any trust. Class actions can also be taken under Section 53N(4) of the Competition Act whereby one or more persons on behalf of numerous persons with the same interest in filing a class action can file an application with the permission of NCLAT, on behalf or for the benefit of all the interested persons.
VIII CALCULATING DAMAGES
Section 27 of the Competition Act empowers the CCI to pass orders that include penalties after conducting an inquiry into agreements that are in violation of Section 3 or conduct that is in violation of Section 4 of the Competition Act. The CCI also has the power to impose a lesser penalty if full and vital disclosure is made by a lesser penalty applicant in case of a cartel.81
Penalties can also be imposed if the orders82 or directions issued by DG and the CCI83 are not complied with. Any person or enterprise may file an application before NCLAT for recovery of damages.84 An application for claiming damages can be filed before NCLAT under Sections 53N (in an appeal arising from findings of the CCI or NCLAT), 42A (for recovery of damage suffered by the plaintiff) and 53Q(2) (damage suffered due to inability of the judgment debtor to comply with the CCI orders) of the Competition Act. Though a party needs to demonstrate the damage suffered because of the contravention, it need not re-prove the contravention to obtain compensation.
IX PASS-ON DEFENCES
There is currently no pass-on defence in India. However, Explanation (b) to Section 53N of the Competition Act clarifies that when deciding compensation applications, NCLAT must be concerned with 'determining the eligibility and quantum of compensation due to a person applying for the same'. Therefore, the pass-on defence may be taken by a respondent to contend that since the applicant has passed on the loss or damage, if any, caused to it, it is not eligible for any compensation.
X FOLLOW-ON LITIGATION
The Competition Act does not provide any explicit limitation prohibiting the initiation of a private action if there has been an enforcement action with respect to the same. However, under Section 61 of the Competition Act, the civil courts' jurisdiction over any matter which the CCI or NCLAT is empowered to determine (which, in the case of NCLAT, includes compensation applications under Section 53N of the Competition Act by aggrieved parties) is barred.
Although the concept of privileged communications is not covered by the Competition Act, the Evidence Act provides for protection of privileged professional communications between attorney and client. While this protection certainly extends to external counsel, it has also been held that a paid or salaried employee who advises his or her employer on all questions of law and relating to litigation (in certain situations) must enjoy the same protection of law as an external counsel. Section 126 of the Evidence Act provides the scope of attorney–client privilege and restricts attorneys from disclosing any communication exchanged with the client or stating the contents or condition of documents in his or her possession. However, this privilege would not apply in situations where a crime or a fraud has been committed during the period of attorney's engagement by the client.
The privilege applicable under Section 126 of the Evidence Act is extended to the interpreters, clerks and employees of the legal adviser by Section 127 of the Evidence Act. Under Section 128 of the Evidence Act, the legal adviser is bound by Section 126 of the Evidence Act unless the client calls the legal adviser as a witness and questions him or her on the information. Moreover, Section 129 of the Evidence Act provides that no one shall be compelled to disclose to the court any confidential communication that has taken place with his or her legal professional adviser, unless the latter offers him or herself as a witness. Moreover, the application of these provisions to leniency applications is yet to be tested since no case has been decided.
XII SETTLEMENT PROCEDURES
Although there is no express provision under the Competition Act that prescribes the settlement procedure, a decision85 passed by the High Court of Delhi upheld the possibility of settlements between an informant and opposite party regarding an antitrust dispute and held that the basis of information furnished by the informant cannot survive after the informant itself has withdrawn the information and settled the case with the opposite party. However, the decision also held that if, notwithstanding the settlement, the CCI feels that any action is required against the opposite party for anticompetitive conduct, the CCI cannot be barred from doing so. The decision is currently under appeal before a larger bench.86
The Competition Act in India does not empower the CCI or NCLAT to direct the parties to resort to arbitration or any other alternate dispute resolution mechanism. Significantly, the High Court of Delhi in Union of India v. CCI & Ors87 held that existence of an arbitration agreement is not relevant for the purposes of competition law proceedings under the Competition Act. The general rule prevalent in India regarding arbitration is that though issues in personam may be arbitrable, rights in rem should not be arbitrable. Given the specific provision for adjudication of private antitrust claims by Section 53N of the Competition Act, these disputes may not be termed as arbitrable. However, as yet, there has not been a substantive decision on arbitrability of competition law disputes and more clarity may emerge in the future if such a decision were to be passed.
XIV INDEMNIFICATION AND CONTRIBUTION
Although the Competition Act does not provide for indemnification or contribution from third parties, co-defendants and cross-defendants, such situations could arise in the future, especially where suo moto cognisance or investigation by authorities could implead third parties in the same sector.88
XV FUTURE DEVELOPMENTS AND OUTLOOK
After the current competition law legislation came into operation, the government constituted an expert committee in 2011 to suggest changes to the existing regime. However, the Competition (Amendment) Bill 2012 lapsed before it could be passed by the lower house of the Parliament.89 Recently, the Competition (Amendment) Bill 2019 was listed for introduction in the winter session of the Parliament of India held in November and December of 2019. The Bill was not tabled for voting in the winter session. However, on 21 February 2020, the Ministry of Corporate Affairs released the Draft Competition Amendment Bill 2020 for public comments. Thus, the finalisation of the Bill will take some more time.
More amendments may be brought in the Competition Act and the regulations framed thereunder in the future based on the report of the Competition Law Review Committee. The Committee has recommended, among other things, to expressly include hub and spoke cartels in Section 3(3) of the Competition Act, expansion of factors under Section 19(3) for determining adverse effect on competition, under Section 19(6) for determining relevant geographical market and under Section 19(7) of the Act for determining relevant product market, and introducing a defence for protecting intellectual property rights under Section 4 of the Act similar to the defence given in Section 3(5)(i).
The competition law regime in India is undergoing tremendous change and the CCI is actively working with the government as well as governments abroad to achieve its goal of furthering economic development by preventing anticompetitive practices and promoting fair competition. In this regard, in line with its proactive methods, in the past year the CCI has expanded the scope of its investigation into alleged anticompetitive conduct by a leading hospital chain and a leading medical devices company by directing the DG to examine the practices of super specialty hospitals across Delhi in respect of healthcare products and services provided to inpatients.
Antitrust jurisprudence in India continues to develop such as in Competition Commission of India v. JCB India Ltd and Ors,90 and Competition Commission of India v. Grasim Industries Ltd,91 in relation to the extent of the powers of the DG, but there are regulatory issues that need to be addressed. One of the major issues that require further clarity is the interplay between competition and intellectual property. Although a single judge of the High Court of Delhi decided in favour of the CCI's jurisdiction to initiate inquiries where alleged anticompetitive conduct may arise following the exercise of intellectual property rights, this continues to be a subject of debate due to the appeal preferred by the opposite party.92 Overlap between CCI and other sectoral regulators remains another major issue. While the decision by the Supreme Court in Competition Commission of India v. Bharti Airtel Limited & Ors represents an important step forward, its implementation and acceptance by other sectoral regulators, apart from TRAI, remains to be seen.
The decision of the Supreme Court in Excel Crop Care Limited v. Competition Commission of India & Anr93 seems to have laid down the foundation for a more transparent, proportionate yet strong competition enforcement in India. A concurring opinion by Ramana J in the above decision clearly highlighted the need to consider various aggravating and mitigating factors before determining the penalty to be imposed for a contravention:
the nature, gravity, extent of the contravention, role played by the infringer (ringleader? 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, nature of the product, market share of the entity, barriers to entry in the market, nature of involvement of the company, bona fides of the company, profit derived from the contravention etc.
The Supreme Court, highlighting the absence of guidelines for the imposition of penalties in India as compared to other jurisdictions, may instruct the CCI to consider issuing guidelines for the imposition of penalties (though none have been issued thus far).
While certain grey areas still remain, the future of competition law regulation in India seems positive, with the CCI adopting a proactive, indiscriminate stance towards promoting competition, and NCLAT, the high courts and the Supreme Court working to ensure that the CCI and the DG pursue their ends in accordance with their powers and duties under the Competition Act.
1 Avaantika Kakkar and Anshuman Sakle are partners at Cyril Amarchand Mangaldas.
2 The CCI acts as the market regulator for prevention and regulation of conduct having an adverse effect on competition in India.
3 Notification dated 15 May 2009 issued by the Ministry of Corporate Affairs.
4 Report of the Competition Law Review Committee (July 2019) available at http://www.mca.gov.in/Ministry/pdf/ReportCLRC_14082019.pdf (last accessed on 28 November 2019).
5 The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2019 (13 August 2019) available at https://www.cci.gov.in/sites/default/files/notification/210553.pdf (last accessed on 28 November 2019).
6 The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Second Amendment Regulations, 2019 (30 October 2019) available at http://egazette.nic.in/WriteReadData/2019/213525.pdf (last accessed on 28 November 2019).
7 The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Third Amendment Regulations, 2019 available at https://www.cci.gov.in/sites/default/files/whats_newdocument/Combination-Regulation-Market-Purchases-For-Public-Comments.pdf (last accessed on 28 November 2019).
8 The Competition Commission of India (General) Amendment Regulations, 2019 (20 November 2019) available at http://egazette.nic.in/WriteReadData/2019/214225.pdf (last accessed on 28 November 2019).
9 Interim Observations, Market Study on E-commerce in India, Competition Commission of India (30 August 2019) available at https://www.cci.gov.in/sites/default/files/whats_newdocument/Interimobservations_30August2019.pdf (last accessed on 28 November 2019).
10 Competition Commission of India v. JCB India Ltd. and Ors., Criminal Appeal No. 76-77 of 2019 (@ SLP(Crl.) 5899-5900 of 2018), order dated 15 January 2019.
11 Uber India Systems Pvt. Ltd. v. Competition Commission of India, Civil Appeal No. 641 of 2017, order dated 3 September 2019.
12 Mahindra & Mahindra Ltd. & Ors. v. Competition Commission of India & Anr., (W.P. (C) 11467/2018, order dated 10 April 2019.
13 Mahindra and Mahindra Limited v. Competition Commission of India & Anr., Special Leave Petition (Civil) No. 10346/2019, order dated 29 April 2019.
14 Cadd Systems and Services Private Limited v. Competition Commission of India, W.P. (C) 6661 of 2019, order dated 17 July 2019.
15 Competition Commission of India v. M/s Grasim Industries Ltd., LPA 137 of 2014, order dated 12 September 2019.
16 M/s Rajasthan Cylinders & Containers Ltd. v. Competition Commission of India, Crl. M.C. 4363/2018, order dated 29 March 2019.
17 Shri Saurabh Tripathy v. Competition Commission of India, W.P.(C) 2079/2018, order dated 10 October 2019.
18 United India Insurance Company Limited v. Competition Commission of India, W.P.(C) 1100/2019, order dated 11 September 2019.
19 Competition Commission of India v. Bharti Airtel Limited & Ors, Civil appeal 11843/2018 (arising out of SLP(C) No. 35574/2017), order dated 5 December 2018.
20 Star India Private Limited v. Competition Commission of India, Writ Petition No. 9715 of 2018, order dated 16 October 2019.
21 Ashokbhai Manilal Mehta v. Competition Commission of India, Competition Appeal (AT) No. 17 of 2019, order dated 23 April 2019.
22 All India Online Vendors Association v. Competition Commission and Ors., Competition Appeal (AT) No. 16 of 2019, order dated 14 August 2019.
23 Google LLC & Ors v. Competition Commission of India & Ors, Competition appeal (AT) 18/2018.
24 id., order dated 27 April 2018.
25 In Re: Anticompetitive conduct in the Dry-Cell Batteries Market in India, Suo Motu Case No. 03 of 2017, order dated 15 January 2019.
26 In Re: Cartelisation in the supply of Electric Power Steering Systems, Suo Motu Case No. 07 (01) of 2014, order dated 9 August 2019.
27 In Re: Alleged cartelisation in supply of LPG Cylinders procured through tenders by Hindustan Petroleum Corporation Ltd., Suo Motu Case No. 1 of 2014, order dated 9 August 2019.
28 Nagrik Chetna Manch v. SAAR IT Resources Private Limited, Case No. 12 of 2017, order dated 2 August 2019.
29 Federation of Hotel & Restaurant Associations of India v. MakeMyTrip India Pvt. Ltd., Case No. 14 of 2019, order dated 28 October 2019.
30 Unilazer Ventures Private Limited v. PVR Ltd, Case No. 10 of 2019, order dated 24 July 2019.
31 In Re: Anticompetitive conduct in the Dry-Cell Batteries Market in India, Suo Motu Case No. 03 of 2017, order dated 15 January 2019; In Re: Cartelisation in the supply of Electric Power Steering Systems, Suo Motu Case No. 07 (01) of 2014, order dated 9 August 2019; In Re: Alleged cartelisation in supply of LPG Cylinders procured through tenders by Hindustan Petroleum Corporation Ltd., Suo Motu Case No. 1 of 2014, order dated 9 August 2019; Nagrik Chetna Manch v. SAAR IT Resources Private Limited, Case No. 12 of 2017, order dated 2 August 2019; Vedanta Bio Sciences, Vadodra and Chemists and Druggists Association of Baroda, Case No.C-87/2009/DGIR, order dated 15 January 2019; Madhya Pradesh Chemists and Distributors Federation v. Madhya Pradesh Chemists and Druggist Association, Case No. 64 of 2014, order dated 3 June 2019; Nadie Jauhri v. Jalgaon District Medicine Dealers Association, Case No. 61 of 2015, order dated 20 June 2019; Naveen Kataria v. Jaiprakash Associates Limited, Case No. 99 of 2014, order dated 9 August 2019.
32 M/s Maa Metakani Rice Industries v. State of Odisha, Case No. 16 of 2019, order dated 1 November 2019.
33 Federation of Hotel & Restaurant Associations of India v. MakeMyTrip India Pvt. Ltd., Case No. 14 of 2019, order dated 28 October 2019.
34 Air Works India (Engineering) Private Limited v. GMR Hyderabad International Airport Limited, Case No. 30of 2019, order dated 3 October 2019.
35 Matrix Info Systems Private Limited v. Intel Corporation, Case No. 05 of 2019, order dated 9 August 2019.
36 Mr. Shravan Yadav v. Volleyball Federation of India, Case No. 01 of 2019, order dated 7 August 2019.
37 In re: Alleged anticompetitive conduct by Maruti Suzuki India Limited (MSIL) in implementing discount control policy vis-à-vis dealers, Suo Moto Case No. 01 of 2019, order dated 4 July 2019.
38 Section 53N, Competition Act, 2002.
39 Section 64, Competition Act, 2002.
40 Section 62, Competition Act, 2002.
41 Section 61, Competition Act, 2002.
42 Section 19(1), Competition Act, 2002.
43 Google Inc v. Competition Commission of India & Ors, 2015 (150) DRJ 192. (The CCI has preferred SLP (C) 13716-17/2017 against this order before the Supreme Court, which is currently pending. The Supreme Court has issued a notice on the appeal as well as an application for condonation of delay, but no other interim order has been passed).
44 Section 41, Competition Act, 2002.
45 See footnote 8.
46 Lupin Ltd & Ors v. CCI & Anr, appeal No. 40/2016, I.A. No. 152/2016, order dated 7 December 2016 (appeal preferred by CCI pending before the Supreme Court).
47 Section 33, Competition Act, 2002.
48 Competition Commission of India v. Steel Authority of India Ltd and Ors., (2010) 10 SCC 744.
49 Section 46, Competition Act, 2002 (r/w CCI Lesser Penalty Regulations).
50 MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd, compensation application No. 01/2014 (based upon the judgment dated 5 August 2014 in appeal No. 15/2011); Crown Theatre v. Kerala Film Exhibitors Federation, C.A.(AT) (COMPAT) No. 1 of 2017 in competition appeal (AT) No. 16 of 2017; Sai Wardha Power Ltd v. Coal India Ltd & Ors, Transfer C.A. (AT) (Compensation) No. 01/2017; Maharashtra State Power Generation Company Ltd v. Nair Coal Services Pvt Ltd & Ors, compensation application (AT) No. 02/2018; Sateyendra Singh & Ors v. Ghaziabad Development Authority, compensation application (AT) No. 02/2018; Food Corporation of India v. Excel Crop Care Ltd. & Ors., compensation application (AT) No. 01/2019.
51 Section 53A specifies the orders passed by the CCI against which an appeal before NCLAT would be maintainable.
52 Section 53T, Competition Act, 2002.
53 See Prabhakar v. Joint Director Sericulture Department and Ors, 2015(10)SCALE114, paragraph 36.
54 Kingfisher Airlines Limited, a company incorporated and registered under the provisions of the Companies Act, 1956 and Dr Vijay Mallya v. Competition Commission of India through its Secretary (Ministry of Company Affairs, Government of India), The Director General, Competition Commission of India, MP Mehrotra, Indian Inhabitant and Union of India (UOI) through Secretary, Ministry of Company Affairs 100CLA190 (Bom).
55 Section 3(5)(ii), Competition Act, 2002.
56 Cases Nos. 07 & 30/2012, case No. 06/2014 and case No. 46/2014, order dated 31 January 2018.
57 Biocon Limited & others v. F. Hoffmann-La Roche AG & Ors, case 68/2016, order dated 21 April 2017 (opposite parties have challenged the initiation of inquiry before the High Court of Delhi); Kaveri Seed Company Limited, Ajeet Seeds Private Limited & Ankur Seeds Private Limited v. Mahyco Monsanto Biotech (India) Limited & Ors, case No. 37, 38, 39 of 2016, order dated 9 June 2016 (opposite parties have challenged the initiation of inquiry before the High Court of Delhi).
58 Intex Technologies (India) Limited v. Telefonaktiebolaget LM Ericsson, case No. 76/2013, order dated 16 January 2014; (appeal challenging the initiation of inquiry pending before the High Court of Delhi).
59 Nirmal Kumar Manhsani v. Ruchi Soya Industries Ltd & Ors, case No. 76/2012, order dated 28 June 2016 (order is currently under challenge in W.P.(C) 3922/2017 before the High Court of Delhi).
60 The Board of Control for Cricket in India v. The Competition Commission of India and Ors, appeal No. 17 of 2013 and I.A. No. 26 of 2013, order dated 23 February 2015.
61 XYZ v. REC Power Distribution Company Limited, case No. 33 of 2014, order dated 15 May 2016; XYZ v. Association of Man-made Fibre Industry of India & Others, case No. 62 of 2016, order dated 10 November 2016; Sudeep PM & others v. All Kerala Chemists and Druggists Association, case No. 54 of 2015, order dated 31 October 2017.
62 Lupin Limited and Ors v. Competition Commission of India, The Hindustan Times House and Ors, appeal No. 40 of 2016, order dated 7 December 2016.
63 Footnote 8.
64 Schott Glass India Pvt Ltd v. Competition Commission of India through its Secretary and M/s Kapoor Glass Private Limited, appeal No. 91, 92/2012, order dated 2 April 2014.
65 See footnote 8.
66 Section 53N, Competition Act, 2002.
67 Regulation 35, CCI (General) Regulations, 2009.
68 Section 36(1), Competition Act, 2002.
69 Section 41(2), Competition Act, 2002.
70 Regulation 35, CCI (General) Regulations, 2009.
71 Regulation 37 and 50, CCI (General) Regulations, 2009.
72 Regulation 41, CCI (General) Regulations, 2009.
73 Regulation 44, CCI (General) Regulations, 2009.
74 Regulation 45, CCI (General) Regulations, 2009.
75 See NTN Corporation v. Competition Commission of India and Anr, W.P.(C) 3051/2016, High Court of Delhi; Sumitomo Electric Industries Ltd v. CCI, W.P. (C) 9894/2017, High Court of Delhi; Toyo Element Industry Co, Ltd v. CCI, W.P. (C) 9884 of 2017, High Court of Delhi; Miyamoto Electric Horn Co Ltd v. CCI & Anr, W.P. (C) 6492/2017, High Court of Delhi; NOK Corporation v. CCI & Anr, W.P.(C) 11628/2016, High Court of Delhi; Toyota Industries Corporation v. CCI, W.P.(C) 3177/2017, High Court of Delhi.
76 Section 36(3), Competition Act, 2002.
77 Section 17(3), Competition Act, 2002 and Regulation 52, CCI (General) Regulations, 2009.
78 Competition Commission of India (Procedure for Engagement of Experts and Professionals)Regulations, 2009, No. R-4007/6/REG-EXPORT/NOTI/04-CCI, dated 15 May 2009.
80 There have been several cases where the CCI has initiated an investigation on receipt of information filed by associations, e.g., Builders Association of India v. Cement Manufacturers' Association & Ors, case No. 29/2010, order dated 31 August 2016 (appeal filed by opposite parties pending before NCLAT); Belaire Owners' Association v. DLF Limited, HUDA & Ors, case No. 19/2010, order dated 12 August 2011 (appeal preferred by opposite party pending before Supreme Court).
81 Section 46, Competition Act, 2002 (r/w CCI Lesser Penalty Regulations).
82 Section 42, Competition Act, 2002.
83 Section 43, Competition Act, 2002.
84 Section 42A, Competition Act, 2002.
85 Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India & Anr, High Court of Delhi, W.P.(C) 5604/2015, order dated 14 December 2015.
86 CCI v. Telefonaktiebolaget LM Ericsson & Anr, High Court of Delhi, LPA 550 of 2016.
87 Union of India v. CCI & Ors, 2012 CompLR 187 (Delhi).
88 See In Re: Shri Shamsher Kataria v. Honda Siel Cars India Ltd & Others, case No. 03 of 2011, order dated 27 July 2015 (in continuation of an earlier order dated 25 August 2014), appeal No. 60/2014, 61/2014 and 62/2014 disposed of by COMPAT on 9 December 2016; Shri Jyoti Swaroop Arora v. M/s Tulip Infratech Ltd & Ors, case No. 59 of 2011, order dated 3 February 2015 (order upheld by the High Court of Delhi in W.P.(C) 6262/2015, order dated 16 May 2016).
89 The Competition (Amendment) Bill, 2012, available at www.prsindia.org/billtrack/the-competition-amendment-bill-2012-2571.
90 Competition Commission of India v. JCB India Ltd. and Ors., Criminal Appeal No. 76-77 of 2019 (@ SLP(Crl.) 5899-5900 of 2018), order dated 15 January 2019.
91 Competition Commission of India v. M/s Grasim Industries Ltd., LPA 137 of 2014, order dated 12 September 2019.
92 Telefonaktiebolaget Lm Ericsson (Publ) v. Competition Commission of India, [LPA 246 of 2016], High Court of Delhi.
93 Excel Crop Care Limited v. CCI & Anr, (2017) 8 SCC 47.