Facilitator Liability in India: Analysing the Scope of Private Antitrust Actions Against Third Parties Post-2023 Amendment

The 2023 (Amendment) Act, is a realistic expansion of the modern-day antitrust regime. Section 3(3-A) adds the authority to penalise any person who “participates or intends to participate” in an anti-competitive arrangement.

Introduction

The Competition Act, 2002 (hereinafter ”the Act”) has significantly impacted Indian competition law by imposing penalties on corporations that engage in anti-competitive conduct, including cartels, bid-rigging, abuse of dominance¹, and anti-competitive vertical or horizontal agreements², yet the economic and technological sophistication of modern markets has rendered this narrow comprehension of guilt progressively inadequate. Anti-competitive conduct goes beyond overt collusion as markets evolve, relying upon a web of intermediaries consultants, trade associations, financial advisors, information technology (IT) platforms, and data providers who, not being direct participants in the anti-competitive offense, significantly facilitate or enable the violation. Such third parties typically perform as “facilitators”, thus presenting a novel regulatory issue as a consequence of their indirect, but effective, involvement in anti-competitive conduct. Facilitator liability has developed internationally through legal and administrative application in numerous States, most notably the European Union (EU), where trade associations or consultancies have been sanctioned for facilitating cartel conduct.

Until recently, India exhibited a significant deficiency in legislative and judicial acknowledgment of indirect liability. This disparity persisted despite certain individuals evidently contravening existing competition regulations. The Competition (Amendment) Act, 2023³ (hereinafter “the 2023 amended Act”) represents a significant progression, indicating a policy shift towards a more inclusive framework of accountability that incorporates third-party facilitation.

Despite this legislative advancement, the underlying notion and procedural certainty to impose liability on facilitators especially in private enforcement proceedings are insufficiently defined and ill-determined.

This paper tries to analyse the ambit, limitations, and evidence necessities of post-2023 amendment liability. It explores major concerns such as legal criteria for “facilitation”, requirements of evidence for establishing causation and intent, and procedural practicability in imposing third-party liability in civil cases without prior orders of the Competition Commission of India (hereinafter “CCI”). This article undertakes a doctrinal and comparative analysis to map the contours of this evolving framework of liability and examine its implications for corporate compliance and the trajectory of private enforcement in India.

Conceptualising facilitator liability: expanding the circle of accountability

Facilitator liability, by definition, broadens the scope of competition enforcement to players who do not participate in anti-competitive agreements themselves but significantly contribute to their orchestration or execution.⁴ They can be third-party intermediaries who facilitate logistics for collusive meetings, craft pricing algorithms that facilitate coordination, or share commercially sensitive information across competitors. The legal theory to justify such liability borrowed parallels from doctrines of criminal law aiding and abetting, and joint tortfeasor liability of tort law. Although the 2002 Act does not explicitly mention facilitators, its broad definitions allow for a more expansive interpretation.⁵ Section 27(b), under which penalties can be levied on “persons” who are in contravention of the provisions of the Act, has been thought to be a potential source of expanding liability beyond the direct participants due to the sought out expansion while defining such persons. The 2023 (Amendment) Act, makes this even clearer by introducing language that acknowledges intent to contribute and indirect contribution as grounds for liability.

The jurisprudence of the European Union provides robust support for such an approach.⁶ In AC-Treuhand AG v. European Commission⁷, the European Court of Justice upheld sanctions against a consultancy that provided meeting rooms for cartel gatherings, helped members communicate with each other, and stored confidential information despite not being a party to the price-fixing. Indian competition law is now also in consonance while following this wider EU approach, as opposed to the narrower US model which typically requires direct participation or a “conscious commitment to a common scheme”.

The Competition (Amendment) Act, 2023: legislative recognition of facilitators

The 2023 (Amendment) Act, is a realistic expansion of the modern-day antitrust regime. Section 3(3-A) adds the authority to penalise any person who “participates or intends to participate”⁸ in an anti-competitive arrangement. The enhanced linguistic construct to Section 3(3-A) turns the attention away from direct enforcement and towards contributory intent and potential participation. It enables regulators to cast a wider net over third parties who may have devised, facilitated, or concealed the anti-competitive conduct without coming in notice of the regulators.

Another significant amendment is the addition to Section 3 with the presumption of anti-competitive conduct on the sharing of commercially sensitive data. This section, directed mainly at competitors, opens up regulatory opportunities for investigation into the activities of facilitators who orchestrate or manage such transactions. For instance, IT platforms that contain sensitive data or unregulated advisers who advise on pricing regimes can be brought under scrutiny.

The Section 48⁹ amendment follows this trend further by including those “in charge of, and responsible for, the conduct of the business”, possibly including external advisers, consultants, or digital service providers. Together, these amendments propose a conscious step towards ensuring indirect facilitators of anti-competitive conduct within the scope of liability.

Facilitator liability in private enforcement: jurisprudential gaps and emerging challenges

In spite of the progressive 2023 amendment, Indian competition jurisprudence has not been able to establish a rational doctrinal framework to determine facilitator liability, more so in the context of private enforcement. Available case laws have largely been dealing with primary wrongdoers actively involved in anti-competitive arrangements or abuse of dominance.¹⁰ In Etihad Airways v. CCI¹¹ and Meru Travel Sols. (P) Ltd. v. Uber India Sys. (P) Ltd.¹² For example, judicial scrutiny was limited to the behaviour of the central entities, with scant examination of whether extraneous parties like consultants, platform intermediaries, or financiers could have materially facilitated or organised the challenged conduct.

This gap is especially pronounced in private antitrust actions, where the claimant bears the sole burden of proof, without the use of investigative resources at the disposal of the CCI.¹³ In contrast to the CCI, private plaintiffs are limited to publicly available information, contractual agreements, or circumstantial evidence to prove complicity. But Indian courts have not defined precise thresholds for what is a “material contribution” to a competition law infringement or how one is to gauge “intent to facilitate” in indirect participation cases.

The conceptual foundation for causation is equally underdeveloped. For cases against facilitators, damage to a claimant typically results from the downstream activity of the immediate perpetrators, raising tricky questions of remoteness, foreseeability, and proximate cause. Whether a pricing formula provided by a software provider company operating independently that is then utilised in a manner that results in collusion is causally related to the ensuing damage is one that Indian courts have yet to have to grapple with.

Section 53-N¹⁴ of the Act, whereby private parties are allowed to claim compensation from “any enterprise” which has violated the Act, can technically be used against facilitators. However, two concerns remain. Firstly, facilitators are seldom found liable by the CCI, and the prerequisite of a finding under Section 53-N creates a barrier to including them in private enforcement proceedings. Secondly, the phrase “enterprise”¹⁵ although broadly defined in the Act has not yet been interpreted adequately by the existing judicial pronouncements to clearly cover non-competitive third parties like advisors, consultants, or digital enablers.

Plaintiffs will arguably have to establish three elements in order to succeed in a private action against a facilitator:

1. Knowledge: That the facilitator had actual or constructive knowledge of the anti-competitive behaviour or its likely effects.

2. Contribution: That the facilitator substantially caused, organised, or hid the alleged conduct.

3. Causation and Harm: That the claimant suffered concrete harm as a reasonably foreseeable result of such facilitation.

These variables are dependent on doctrines of tort law such as unjust enrichment and joint tortfeasor liability. But their automatic transposition into the antitrust space is neither effortless nor assured. Antitrust harm has an economic underpinning, often constituting sophisticated market analysis and counterfactual logic. Their transposition to this field based on doctrinal assumptions in other spaces entails tremendous judicial imagination and economic competence.

Without an express recognition of causation and indirect liability principles in Indian competition law, the courts would necessarily go slow. Without precedent, facilitators can go scot-free even though they have a dominating role to play in generating anti-competitive effects.

Evidentiary and procedural complications in establishing facilitator liability

Establishing facilitator liability in private antitrust cases involves significant evidentiary and procedural hurdles. In contrast to cartel members, facilitators hardly ever leave explicit evidence of anti-competitive intention — for example, written agreements or price instructions. Their actions are likely to be covert, embedded in regular commercial practice, so direct evidence of collusion is very uncommon. As a result, plaintiffs will have to lean heavily on circumstantial trail of events, such as unusual communication patterns, strategic consultancy analyses, technical design aspects of software tools, or internal memoranda indicating awareness of the collusive effect. These indirect pieces of evidence have to cumulatively prove not only intent but also material contribution towards the anti-competitive result.

This evidentiary hurdle is added to by the procedural design of Indian competition law, which follows a sequential model of enforcement. Here, civil liability under Section 53-N is dependent on an antecedent finding of contravention by the CCI. In reality, Indian Courts have been hesitant to hear independent antitrust actions, particularly against marginal players such as facilitators, without the CCI first deciding their role in a public enforcement action. This order of procedure presents a huge bottleneck for plaintiffs seeking to sue third-party enablers directly, as it essentially forces the CCI to investigate — and find guilty the facilitators in question.¹⁶ Where the CCI order does not include the role of such actors, civil courts are otherwise reluctant to expand liability.

Also, the prevailing jurisprudential silence on the evidentiary requirements relating to facilitator liability leaves doubts. Admissibility, probative value, and the applicable standard of proof for circumstantial evidence in these situations are some of the unresolved issues. Whether a pattern of data sharing or pricing alignment facilitated by an IT consultant meets the evidentiary threshold for ”material contribution” is not settled in Indian law. In the absence of developed doctrines akin to the European Union’s recognition of ”conscious facilitation” or US standards of “knowing participation”, Indian Courts face a normative vacuum.

Therefore, the interplay between a high evidentiary threshold and procedural sequencing effectively insulates facilitators from private liability in many instances. Addressing this enforcement gap would require legislative clarification or judicial innovation that permits limited exceptions to the sequential model or recognizes prima facie thresholds for facilitation based on circumstantial evidence alone.

Conclusion

Facilitator liability is a new frontier in Indian competition law, one that is a reaction to the complexity of market structures and the enforcement challenges in the contemporary scenario. The 2023 Amended Act is an important step towards recognising the role of third parties in anti-competitive conduct. However, for such a regime of liability to be effective, especially in private enforcement, substantive legal doctrines, evidentiary standards, and procedural protections must evolve further.

Addressing these issues is imperative not just to achieve deterrence but also to make the system of enforcement proportionate, equitable, and in accordance with the spirit of the law, not solely the word. The fate of forthcoming Indian antitrust enforcement hinges on its ability to develop based on the extravagant demands of modern business and corporate regime without compromising procedural fairness and legal certainty.