Competition Commission of India

Cyril Amarchand MangaldasExperts Corner

The Indian e-commerce sector’s revenue is expected to jump from USD 39 billion in 2017 to USD 120 billion in 2020, growing at an annual rate of 51%, which is the highest in the world.[1]The emergence of the e-commerce sector as a popular mode for distribution in the digital economy has made it prone to vertical restraints.[2] In the wake of the global trend of an antitrust crackdown on tech giants, including e-commerce marketplaces, the “Competition Commission of India” (CCI) has also started looking into allegations dealing with vertical restraints by major e-commerce companies like, Flipkart, Snapdeal, Jabong, Myntra and Amazon.

However, most of the vertical restraint cases dealt by the CCI so far have been related to price restraints like minimum “Resale Price Maintenance” (RPM) or fixed pricing policies and non-price restraints like exclusive distribution network or other kinds of exclusive agreements. But owing to the growing complexities in the e-commerce markets including the economics of the two-sided markets, it is important to take note of other novel types of vertical restraints like “Across Platforms Parity Agreements” (APPA) or retail “Most Favoured Nation” (MFN) clause, “geo-blocking” or “geo-filtering” and advertising restrictions.[3] Here a pertinent question that arises is whether the CCI is currently equipped to deal with such peculiar issues in such a fluid and fast-growing market like e-commerce in India?

Regulatory Framework for Vertical Restraints in the E-Commerce Sector

The CCI has the power to scrutinise any agreement pertaining to the e-commerce sector that leads to an “Appreciable Adverse Effect on Competition” (AAEC) under Section 3 of the Competition Act, 2002 (Act), which lays down the framework for regulating anti-competitive agreements, including vertical restraints. Section 3(4) of the Act specifically deals with vertical restraints and states that:

“Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade-in goods or provision of services, including—

(a) tie-in arrangement;

(b) exclusive supply agreement;

(c) exclusive distribution agreement;

(d)  refusal to deal;

(e)  resale price maintenance…”

The section clearly mentions that any of the above agreements/arrangements would amount to a contravention of Section 3 of the Act if they cause an AAEC in India.

CCI’s Take on the E-Commerce Sector

The crucial questions that the CCI faced while dealing with a few of the cases on vertical restraints in the e-commerce sector have primarily been on the appropriate market definition. Whether online vertical agreements between e-commerce platforms and third-party businesses selling on such platforms qualify as distributors in a vertical distribution chain or as providers of inter-mediation platform services? However, several questions still remain agonisingly unresolved, like, what are the relevant criteria to distinguish between the two? What about platforms that also compete with third party sellers on the platforms?

The CCI has held that, although offline and online markets differ in terms of discounts and shopping experience, they are merely different channels of distribution of the same product and are not two different relevant markets. In Ashish Ahuja v. Snapdeal[4], the CCI noted that consumers weigh available options in both online and offline markets before taking any decision and are likely to shift to online or offline market if the price in any one of these markets increases.

In Mohit Manglani v. Flipkart India (P) Ltd.[5] the CCI considered the unique features specific to the e-commerce sector as such platforms provide an opportunity to the consumers to compare prices as well as various characteristics of the products simultaneously. However, the CCI did not consider it necessary to delineate the relevant market as e-commerce due to the parties not being dominant in both the online and offline markets individually.

Despite the reluctance of the CCI to accept e-commerce market as a separate relevant market initially, in certain recent judgments the CCI has laid importance on considering the specific characteristics of the e-commerce sector as compared to the offline markets. Recently, in All India Online Vendors Association v. Flipkart India (P) Ltd.[6], the CCI noted that from the end consumers’ perspective, the distinction line between online and offline sellers are sometimes blurry, yet it cannot be denied that online marketplaces offer convenience for sellers and buyers. For sellers, they save costs in terms of setting up of a store, sales staff, electricity and other maintenance charges, while the benefits afforded to buyers include the comfort of shopping from their homes thus saving time, commuting charges and at the same time they can compare multiple goods. Moreover, the CCI noted that the increasing number of buyers who visit online platforms lead to network effects in the online market, an important phenomenon missing in online retail stores or offline markets.

In light of the above, it may be said that there has been a shift in the CCI’s approach in considering e-commerce as a stand-alone market as the CCI has appreciated that e-commerce markets are unique and have different implications, unlike other regular markets.

Vertical Restraints in the E-Commerce Sector in India

As mentioned above, e-commerce sector is very prone to competition issues arising out of vertical restraints. Some of the most popular and conventional vertical restraints that the CCI has handled in this sector consist of RPM, selective distribution network and the exclusive distribution networks.

Minimum RPM

In Jasper Infotech (P) Ltd. (Jasper) v. Kaff Appliances (India) (P) Ltd. (Kaff)[7], Jasper, which owns and operates Snapdeal, alleged that Kaff, a manufacturer of chimneys and hobs sold on Snapdeal, was attempting to impose a “Minimum Operating Price” (MOP) on Snapdeal to make sales not below a minimum price and threatened to ban online sales if such prices were not maintained. This was the CCI’s first substantial order [under Section 26(6)] where the CCI dealt with allegations of RPM, particularly minimum RPM, on online platforms. However, Kaff was not penalised as the CCI observed that the restrictions imposed on Snapdeal did not cause an AAEC in the market.

Similarly, in Counfreedise v. Timex Group India Ltd.[8], the CCI delved into the alleged anti-competitive conduct in the nature of RPM wherein it was alleged that the opposite party was discriminating against the informant vis-à-vis other e-commerce players like Cloudtail, XL Retail, etc. It was observed that for RPM to be effective in form of discount control, it has to be imposed on all online retailers and not just the informant and any agreement in the nature of RPM must meet the test of causing AAEC in India in order to be termed as anti-competitive.

Based on the above cases, we can infer that the CCI has taken a rule of reason approach in relation to dealing with cases on vertical restraints like minimum RPM, given the effects based approach in the above cases. Nevertheless, in Jasper v. Kaff, it has acknowledged the pernicious effects of minimum RPM and its treatment as a hardcore restriction in many antitrust jurisdictions.

Objective Justifications and Pro-Competitive Benefits

In Jasper v. Kaff, the CCI accepted that, many a time, vertical agreements do protect the interests of the end consumer and are pro-competitive. Although restraints such as minimum RPM may adversely affect the price competition between retailers/distributors, vertical restraints nevertheless are a commercially viable option and desirable from the perspective of both manufacturers/retailers and consumers when the intra-brand price competition between retailers/distributors provides an incentive to free ride in the short-run and under-provisioning in the long-run.

Free riding is the most common practice which can be resolved by regulation of the online vertical restraints by the CCI. One retailer may free ride on the investment of another, typically possible where a manufacturer invests in the marketing and promotion at one retailer’s premises which a competing manufacturer takes advantage of. This is where the need to vertical restraints come in handy and effectively safeguard the investments made by the stakeholders of a product.

Other accepted justifications include protection of one’s brand reputation and goodwill, quality control and authenticity certification or protection from counterfeit/spurious products (an issue that is rampant in India’s e-commerce ecosystem), etc. Another important issue which can be dealt with by regulating online vertical restraints is in relation to information asymmetries between buyers and sellers, where the end consumers have lesser information about products than their online sellers due to the inability of the consumer to physically inspect a product prior to purchase.

Unchartered Territories

In Jasper v. Kaff, the CCI took cognizance of the international jurisprudence on online vertical restraints imposed by or on e-commerce platforms, including certain novel vertical restraints peculiar to the online market, namely, MFN clauses, APPAs, non-price restrictive clauses, etc. However, the CCI, till date, has not had the opportunity to deal with these issues. With the Indian e-commerce market emerging as a prime global attraction, it is pertinent to look at what these practices entail and see the kinds of issues that the CCI may have to deal in the near future:

APPAs.—A vertical agreement between a seller/manufacturer and an online platform wherein the seller agrees to sell at a retail price that is not higher than that charged on other platforms.

MFN Clauses.—In situations where a particular APPA condition covers the seller’s/manufacturer’s own online and/or offline platforms, such types of APPAs amount to retail MFN.

Both APPAs and MFNs are parity arrangements. They may also apply to quantity or volumes which can restrict a supplier’s ability to allocate inventory across a range of distribution channels in response to competition between platforms.[9] Parity agreements foreclose the market by (i) deterring entry of rival platforms as they make it harder for new entrants to attract suppliers to the new platforms; (ii) preventing an intermediary from selling directly; and (iii) enabling horizontal collusion in the downstream market leading to higher prices on consumers (like a “hub and spoke” cartel).

Geo-Blocking.—This is a practice where sellers operating in a country/region block or limit public access to their online interfaces, like apps or websites, for consumers hailing from other countries wishing to partake in cross-border transactions. The European Commission’s Geo-blocking Regulation of 2018 condemns this as discriminatory, based on a consumer’s nationality, place of residence or establishment with the European Union. This is a unique vertical restraint which concerns cross-border online sales.

The Way Ahead

In light of the above discussions, it is clear that anti-competitive arrangements in the e-commerce sector are just as innovative as the sector itself. These are by no measure traditional vertical restraints, with their distinct sets of effects and implications for competition regulation.

We believe that Section 3(4) of the Act can squarely cover these anti-competitive practices. However, it may require the aid of e-commerce sector-specific rules and regulations to enable the CCI to deal with the intricacies and peculiarities of the e-commerce sector, such as network effects, cross-border sales, use of algorithms, counterfeiting, etc. However, one aspect that the CCI has got right is its rule of reason approach, as in case of online vertical restraints, it is essential that the regulator balances the anti-competitive effects with the pro-competitive rationale or objective justification of the particular restriction while adjudicating these cases.

Dhruv Rajain, Principal Associate, can be contacted at dhruv.rajain@cyrilshroff.com. Nandini Pahari, Associate can be contacted at nandini.pahari@cyrilshroff.com, Satvik Mohanty, Associate can be contacted at satvik.mohanty@cyrilshroff.com and with the Competition Law Practice at Cyril Amarchand Mangaldas

[1]    <https://www.ibef.org/industry/ecommerce.aspx>

[2]    <https://www.oecd.org/document/DAF/COMP/WD(2018)52/en/pdf>p. 2

[3]    <http://www.oecd.org/competition/VerticalRestraintsForOnlineSales2013.pdf>, p. 11

[4]    2014 SCC Online CCI 65

[5]    2015 SCC Online CCI 61

[6]    2018 SCC Online CCI 97

[7]    2014 SCC Online CCI 150

[8]    2018 SCC Online CCI 67

[9]    <https://centrocedec.files.wordpress.com/2015/07/special-project_online-vertical-restraints-2015.pdf>, p. 66

Cyril Amarchand MangaldasExperts Corner

The enactment of the Insolvency and Bankruptcy Code, 2016 (IBC) in 2016 was one of the most significant reforms introduced by the Government of India (GoI) in the recent years. However, it lacked clarity on its interface with various other regulatory authorities, particularly the Competition Commission of India (CCI). Pertinently, the IBC did not contemplate the timelines for a resolution applicant to notify and seek the approval of the CCI, thereby posing several complex questions, in particular—what would qualify as a binding agreement for insolvency cases? Whether notification process can be triggered prior to approval of a resolution plan? Whether IBC related cases would be granted an expedited approval? Whether preferential treatment would be granted to companies approaching the CCI post obtaining an approval from the Committee of Creditors (CoC)?

With the notification of the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 (Second Amendment), the Ministry of Corporate Affairs has provided much needed clarity to all stakeholders in relation to the above issues. The Second Amendment by way of introduction of a new provision, mandates the approval of the CCI prior to the approval of a resolution plan by the CoC, thereby taking away the discretion exercised earlier by resolution applicants as to the timelines of notifying the CCI. In this backdrop, the article touches upon the merits of the amendment, active role of the CCI in the past two years and the way forward.

Legal Framework

The corporate insolvency resolution process (CIRP) is initiated with the admission of an application against a corporate debtor to the National Company Law Tribunal (NCLT). Thereafter, a resolution professional issues request for resolution plans inviting the interested bidders to submit resolution plans in relation to resolution of the corporate debtor. This is followed by approval of such resolution plan by the CoC and stamping of final approval by the NCLT. The IBC mandates a 180-day period which can be extended to 90 days for the completion of the CIRP.

In the construct of Section 5 of the Competition Act, 2002 (Competition Act), where certain jurisdictional thresholds prescribed under it are breached, a transaction under the CIRP would trigger a mandatory approval from the CCI before closing such a transaction. Under the Competition Act, the CCI is required to form a prima facie opinion of whether a transaction notified to it causes an appreciable adverse effect on competition (AAEC) within a period of 30 working days from the date of such notification. Besides the 30 working day period, the CCI is required to approve/reject/approve with modification any notified transaction within 210 days from the date of such notification, which can be extended to 60 days in limited cases where remedies are warranted. It is important to note that a majority of the cases notified to the CCI have been approved in Phase I of the review period i.e. within the preliminary 30 working day period.

Reasons for the Second Amendment vis-à-vis Competition Act

The Ministry of Corporate Affairs by way of its Notification dated 17-8-2018 added Section 31(4) to the IBC, which inter alia provides that—

… where the resolution plan contains a provision for combination, as referred to in Section 5 of the Competition Act, 2002 (12 of 2003), the resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors.

The above amendment is a welcome step as it clarifies the trigger event for a transaction under the CIRP i.e. essentially the stage at which the CCI approval should be sought. Having a clear mandate to obtain approval from the CCI will go a long way in preventing complex situations which have come up due to the regulatory uncertainties around the CCI approval process.

In the past, we have seen certain cases being notified to the CCI both prior to and post the approval of the CoC. For instance, in the acquisition of Binani Cement Limited (BCL) (one of the first few IBC matters examined by the CCI) two resolution applicants i.e. Dalmia Cement Limited (Dalmia) and UltraTech Cement Limited (UltraTech), both filed separate notifications with the CCI prior to receiving an approval from the CoC. The CCI accorded an approval, finding no AAEC to both Dalmia and UltraTech. However, the approval to UltraTech was accorded by the CCI post the CoC’s approval of the Dalmia resolution plan, thereby making CCI’s approval of UltraTech immaterial.

In another case on point relating to the acquisition of Electrosteel Steels Limited (Electrosteel) by Vedanta Limited (Vedanta), the CCI was notified post the approval of the resolution plan by the CoC. Importantly, Vedanta’s resolution plan was subsequently approved by the NCLT during the CCI’s review process. Such a situation i.e. approval by the NCLT pending the CCI approval could possibly lead to two issues — (1) disqualification of Vedanta and ultimately liquidation of Electrosteel assuming that CCI’s approval took more than 270 days (mandated under the IBC); and (2) potential gun-jumping concerns under the Competition Act because of the conflict between the IBC and the Competition Act resulting from the implementation of “control” provisions under a resolution plan (pursuant to the approval of NCLT).

CCI, IBC and the Way Forward

The CCI has up until now expeditiously assessed a number of IBC transactions and approved such transactions, with an average of 20 days per transaction. As mentioned above, the Second Amendment is a welcome step given that it clarifies the exact timelines for notifying the CCI in the CIRP framework. The Second Amendment emphasises the intent of the GoI to ensure expedited clearances for transactions, defined roles for the various regulators and harmony between the implementation of the statutes.

More importantly, the mandate of the Second Amendment requiring a resolution applicant to obtain approval from the CCI prior to the CoC approval of a resolution plan ensures that the two potential issues highlighted above are avoided, even if it results in multiple filings for the same transaction before the CCI by different resolution applicants.

While the Second Amendment (to the extent it applies to the Competition Act) is an outcome of the need for streamlining regulatory approval process, it would also be interesting to see whether further amendments will be rolled out in this regard or, whether the GoI, following the suit of Securities and Exchange Board of India, would resort to exempting such transaction from the purview of CCI altogether.

*Anshuman Sakle is a Partner with the Competition Law Practice at Cyril Amarchand Mangaldas and can be contacted at anshuman.sakle@cyrilshroff.com.  Dhruv Rajain, Senior Associate can be contacted at dhruv.rajain@cyrilshroff.com and Ruchi Verma, Associate, can be contacted at ruchi.verma@cyrilshroff.com with the Competition Law Practice at Cyril Amarchand Mangaldas.

Cyril Amarchand MangaldasExperts Corner

In December 2018, the Competition Commission of India (CCI) amended the Competition Commission of India (General) Regulations, 2009 (General Regulations) and included a new regulation restricting advocates from accompanying individuals summoned by the office of the Director General (DG). Specifically, the newly inserted Regulation 46-A (2) of the Competition Commission of India (General) Amendment Regulations, 2018 does not allow advocates to, “sit in front of the person so summoned” and states that an advocate, “shall not be at a hearing distance and shall not interact, consult, confer or in any manner communicate with the person, during his examination on oath”.[1] In case of contravention of these conditions, the amendment states that an advocate may be held liable for misconduct, such that he or she may be disallowed from appearing before the DG and the CCI for a time period the CCI deems necessary. Additionally, in cases of misconduct, the CCI may also forward a complaint against the relevant advocate to the Bar Council of the State of which the advocate is a member.

Pursuant to the notification of this amendment, the Tamil Nadu Advocates Association (TNAA) along with the former Vice-Chairman of the Bar Council of Tamil Nadu and Puducherry filed a petition challenging the validity of the amendment on grounds of it violating provisions of the Advocates Act, 1961 and that it attempts to usurp the exclusive functions of the Bar Council of India with respect to undertaking disciplinary action against advocates. In this regard, on 4-1-2019, the Madras High Court (HC) issued an interim stay on the implementation of the amendment until further orders. In this context, currently there exists an inherent ambiguity with regard to the position of advocates vis-à-vis the amendment and the Competition Act, 2002.

Inherent Ambiguity and HC Interim Stay

The amendment is the first attempt to frame written rules and/or regulations on advocates accompanying persons summoned by the DG. Despite lack of such rules and regulations, in practice, advocates would, in any case, be placed in a position wherein he or she could not communicate, consult, or confer with the person being examined under oath. While this has now been codified in the amendment, there is additional language that states that an, “advocate shall not be at a hearing distance” from the person being examined under oath. This is a major concern and creates significant ambiguity, as advocates being placed in a different room from the person being examined becomes a real possibility.

Further, the amendment does not elaborate on what essentially constitutes “misconduct” and nevertheless goes on to detail methods of punishment that the CCI can impose on the advocate in cases of misconduct, which includes the ability to disallow an advocate to appear before the DG and CCI. This magnifies the amendment’s ambiguity, as an advocate’s misconduct is left to the subjective assessment of the DG at the time of the deposition/examination of a person under oath. Moreover, the ability to discipline such an advocate who engages in misconduct is also a prima facie encroachment of the powers of the Bar Council of India that is empowered to discipline advocates in accordance with the provisions of the Advocates Act, 1961. While the HC appears to have taken cognizance of the latter fact i.e. potential encroachment of the Bar Council of India’s powers and has issued an interim stay on the implementation of the amendment pursuant to the petition filed by TNAA, the inherent ambiguity of the amendment is yet to be examined as a ground for invalidity.

Prevalent Scenario

In light of the interim stay passed by the HC on the implementation of the amendment, there seems to be a procedural vacuum in relation to advocates accompanying persons summoned by the DG. Prior to the amendment, an advocate would accompany the person without any prior notification to the DG, if there existed an executed power of attorney in favour of the advocate. Presently, despite the interim stay of the HC, advocates duly authorised by a power of attorney to represent the person summoned by the DG must file a letter prior to the date of interrogation requesting that he or she can accompany the person summoned by the DG and the presence of an advocate during such an integration which is essential to the interest of the client is uncertain .

*Anshuman Sakle is a Partner with the Competition Law Practice at Cyril Amarchand Mangaldas and can be contacted at anshuman.sakle@cyrilshroff.com.  Dhruv Rajain, Senior Associate can be contacted at dhruv.rajain@cyrilshroff.com and Balaji Venkatakrishnan, Associate can be contacted at  balaji.venkatakrishnan@cyrilshroff.com with the Competition Law Practice at Cyril Amarchand Mangaldas.

[1] The Competition Commission of India (General) Amendment Regulations, 2018, available at <https://www.cci.gov.in/sites/default/files/regulation_pdf/193680.pdf>.

 

Cyril Amarchand MangaldasExperts Corner

 

It is not uncommon for companies to commence integration process right after the deal documents for the transaction are signed. While the senior management of the parties delight at the prospect of speedy harmonisation between the two businesses pending regulatory clearances and formal closing, often the reasonable boundaries of legitimate information exchange are trespassed. This excessive exchange of information and coordination between parties prior to consummation of a transaction is often susceptible to antitrust laws and can lead to heavy penalties.

This issue has been scrutinised by the French Competition Authority (FCA) in a recent decision in Altice Case[1] (Altice order) where the parties to the transaction had exchanged strategic information between signing and closing, including the acquirer intervening in the targets commercial and pricing policy requiring the target to take buyers consent for few activities, and exchanging price sensitive information. The exchange of such information was considered to be “gun jumping” and the FCA imposed a penalty of EUR 80 million on Altice.

Considering the trend of exchanging information in mergers and acquisitions, a common query that often arises is what can be done, and what cannot be, to ensure a seamless transition yet not draw the wrath of the antitrust authorities. In pursuance of answering this question, the Federal Trade Commission of United States of America has recently issued a brief guidance (FTC Guidance) explaining how the parties can reduce antitrust risk when exchanging competitively sensitive information prior to closing.

The FTC Guidance provides that the party disclosing the information should share the least amount of information needed for effective due diligence or premerger integration planning issue and such information should be narrowly tailored. If more detailed information is required for integration purposes, then resort should be taken to have clean teams to share such information. The Guidance further provides that if customer and competitive information is required to be given, then such information should be masked and consolidated and customer identities should be protected through redactions. Care should also be taken to ensure that information is not provided in tranches which can be consolidated to recover confidential information. Lastly, due care should also be taken to ensure that post due diligence or in the event of failure of the transaction finally taking place, the information provided is destructed. As for the receiving party, the FTC Guidance provides that, any employee handling the confidential information should be aware of the terms of confidentiality and clean teams should be established with third-party consultants. Clean team should also be vetted by outside counsel, and members of the clean team should have a strategy in place regarding who may access the acquired information. Clean teams should also undertake diligence to ensure that information meant for the clean team is not provided to members outside the clean team, and if such information is required to be provided, then, such information should be blinded, aggregated and vetted by an outside counsel before dissemination.

While this is an FTC Guidance, “gun jumping” issues are similar across all jurisdictions where there is a mandatory merger control regime which requires a pre-clearance before closing. India too is a mandatory suspensory regime where transactions which require a notification to the Competition Commission of India (CCI) pursuant to the Competition Act, 2002 (Act) are required not to consummate the transaction in part or whole before the CCI clearance or the expiry of the waiting period of 210 days. Since 2011, while the CCI has passed significant number of orders under Section 43-A of the Act penalising companies which have partly/wholly consummated the transaction before the same is notified to the CCI or before the receipt of approval, thus far there has been no specific decision in relation to gun jumping issues relating to information exchange. However, the CCI in its recent order in Hindustan Colas (P) Ltd./Shell India Markets (P) Ltd.[2] has furthered its jurisprudence by holding that pre-payment of consideration constitutes gun jumping as it creates a tacit collusion which may cause an adverse effect on competition even before consummation of the transaction, effectively stating that the actions of the parties which can have a possibility of affecting the independent behaviour of the transacting parties could be amenable to antitrust scrutiny.

The issue of what affects the independent behaviour of transacting entities prior to the final closing is somewhat foggy in India. However, what is rather clear is that while the exchange of benign information between the parties pre-closing is permissible, information which is commercially or competitively sensitive in nature such as strategic pricing information etc. would constitute “gun jumping” and therefore frowned upon. Having said that, given the practicalities of conducting business, sensitive business information is often shared even prior to closing through a safeguarded mechanism such as the one mentioned in the FTC Guidance (i.e. clean teams).

In this regard, although the competition regulators recommend that clean teams comprise external advisors, employees/personnel of the parties not closely associated with the day-to-day business operation and management of the transacting companies can also safely form a part of the clean teams arrangement subject to strict non-disclosure commitments ring-fencing the confidential information’s flow beyond the clean team members. This is one of the reasons why clean teams is fairly popular with the corporate houses as it allows effective integration planning sans the risk of antitrust concerns. Finally, in case of a doubt, it is best to seek the counsel of an external advisor to ensure that an otherwise harmless integration planning is not sabotaged resulting into a heavy fine from the CCI.

 

Anshuman Sakle is a Partner with the Competition Law Practice at Cyril Amarchand Mangaldas and can be contacted at anshuman.sakle@cyrilshroff.com. Anisha Chand is a Principal Associate with the Competition Law Practice at Cyril Amarchand Mangaldas and can be contacted at anisha.chand@cyrilshroff.com. Authors would like to thank Soham Banerjee, Associate, Competition Law Practice, for his contribution.

[1] Decision No. 16-D-24 of 8-11-2016.

[2] Combination Registration No. C-2015/08/299.

 

Cyril Amarchand MangaldasExperts Corner

The Indian telecom sector has witnessed continual activity in the recent years, with the entry of new players such as Reliance Jio, consolidation between existing players such as Vodafone and Idea Cellular and the exit of incumbent players such as Telenor and Tata Teleservices. This constant transformation has intensified the battle between industry players to garner market shares and attract consumers. In addition to competing in the marketplace, telecom operators have also been fighting legal battles on competition issues such as cartelisation and predatory pricing as well as on telecom issues such as interconnection. Given that the issues at the core of these matters relate to both competition and telecom laws, a turf war has arisen between the Telecom Regulatory Authority of India (TRAI) and the Competition Commission of India (CCI) re jurisdiction.

Notably, CCI had, through a letter to TRAI last year, highlighted its competence to look into matters relating to predatory pricing. The letter was a result of a consultation paper issued by TRAI in February 2017 on anti-competitive concerns in tariffs by Telecom Service Providers (TSPs).[1] In his letter, the CCI Chairperson stipulated that “issues and questions for consultation relating to delineation of relevant market, assessment of dominance and predatory pricing” are “issues of determination for the Commission”.[2]

Responding to CCI, TRAI stressed that it had the experience and capability to examine all matters, including competitive issues, falling within the purview of tariffs.[3] In line with its assertion, pursuant to the Telecommunication Tariff (Sixty-third Amendment) Order, 2018 (the Amendment Order)[4], TRAI has recently amended the Telecommunication Tariff Order, 1999 (the Tariff Order), to regulate tariffs offered by TSPs on the basis of competition law principles. Through the amendment, TRAI has introduced concepts of “significant market power” and “predatory pricing” in the Tariff Order.

According to TRAI, such regulatory powers are set out under the Telecom Regulatory Authority of India Act, 1997 (the TRAI Act), which requires it to take “measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services”. To further this mandate of facilitating competition, TRAI in its Amendment Order has provided guidance on non-predation, through the insertion of the following definitions:

(a) “Non-predation” has been defined as not indulging in predatory pricing by a service provider having significant market power;

(b) “Significant market power” has been defined as a TSP holding a market share of at least 30% in the relevant market, which is to be determined on the basis of either subscriber base or gross revenue. The Amendment Order simultaneously recognises that the concept of ‘SMP’ flows from the concept of ‘dominance’ under competition laws;

(c) “Predatory pricing” has been defined as the provision of a telecommunication service in the relevant market at a price which is below the average variable cost, with a view to reduce competition or eliminate the competitors in the relevant market—Interestingly, the Amendment Order also refers to the definition of “predatory pricing” under the Competition Act, 2002 (the Competition Act) to emphasise that intent is the key;

(d) “Relevant market” has been defined as the market which may be determined by TRAI with reference to the relevant product market for distinct telecommunication services (such as Wireline Access Service, National Long Distance Service, International Long Distance Service) and the relevant geographical market;

(e) “Relevant product market” has been defined as the market in respect of a distinct telecommunication service for which the licensor grants licence to the TSP;

(f) “Relevant geographic market” has been defined as a market comprising the respective licence service area for which the licensor grants licence to the TSPs to provide distinct telecommunication services.

In addition to requiring the TSPs to conduct a self-check of tariffs at the time of reporting it to TRAI in order to ensure that there is no predation, the Amendment Order also confers suo motu powers on TRAI to examine tariffs to determine the occurrence of any predatory pricing, thus extending its jurisdiction to ex-post abusive conduct. In case of predation, a penalty not exceeding INR 50 lakhs per tariff plan for each service area can be imposed by TRAI.

Post the introduction of the Amendment Order however, officials of TRAI have clarified that dominant operators may match tariffs offered by a new entrant, and such actions would not be seen as predatory.[5]

On the other hand, the Competition Act established a sector agnostic regulator to prevent practices having adverse effect on competition and to promote and sustain competition in markets. The Competition Act sets out specific prerogatives of CCI to prohibit anti-competitive agreements and abuse of dominance. The abusive practices identified include predatory pricing. However, affording due consideration to the market dynamics, the Competition Act requires CCI to holistically examine such conduct. The in-depth examination required by CCI includes the delineation of the relevant market on the basis of factors such as end-use, pricing, consumer preferences, regulatory barriers, transport costs, etc.[6] Subsequently, CCI is required to make a determination of dominance giving due regard not only to the market share of the enterprise, but also to its size and resources, economic power, entry barriers, countervailing buyer power, market structure, etc.[7] Similar to clarifications from TRAI officials, the Competition Act also provides for a carve-out against predatory pricing if such pricing has been adopted to “meet the competition”.

However, contrary to the bright-line test of 30% under the Amendment Order, CCI’s decisional practice repeatedly cautions against adopting a blanket market share test for detection of dominance. As noted by CCI’s Chairperson in the letter to TRAI, market interactions should ideally be assessed on a case-by-case basis without any presumptions based on a formulaic framework.[8] CCI’s holistic approach is evidenced by its recent orders in the telecom sector, where it has approved mergers of key telecom players, despite the significant aggregate market shares, after having weighed in factors such as buyer power, increased switching, absence of switching costs, presence of other players, dynamic nature of the market, etc.[9]

The difference in the regulatory frameworks gives a preview of the contrasting approach to be adopted by the regulators for the same contravention and the conflicting regulatory views that the industry is likely to witness in the coming months. Moreover, while contrasting views may make compliance by TSPs difficult, similar findings may also lead to double jeopardy.

The regulatory conflict has already surfaced before courts, with the Bombay High Court finding that the Competition Act itself is not sufficient to decide and deal with the issues arising out of the provisions of TRAI Act and the contract conditions, under the relevant regulations.[10] The appeal to the Bombay High Court had been filed against a prima facie order of the CCI finding that TSPs, such as Airtel and Vodafone, had cartelised to deny adequate point of interconnections to Reliance Jio to thwart its entry into the telecom market. The decision of the High Court has now been appealed to the Supreme Court.

While the way forward is unknown, this fight for regulatory supremacy can only end with the CCI and TRAI joining forces to coordinate and consult with each other in matters that involve questions of competition and telecom laws. This will also be in line with the intent of the legislators who foresaw this situation and included a provision[11] under the Competition Act for a reference of matters inter se CCI and other statutory regulators.

 

Anshuman Sakle is a Partner with the Competition Law Practice at Cyril Amarchand Mangaldas and can be contacted at anshuman.sakle@cyrilshroff.com.  Arunima Chandra is a Senior Associate with the Competition Law Practice at Cyril Amarchand Mangaldas and can be contacted at arunima.chandra@cyrilshroff.com.

[1] Available at http://www.trai.gov.in/sites/default/files/Consultation_paper_03_17_feb_17_0.pdf.

[2]Available at https://www.thehindubusinessline.com/info-tech/turf-war-rages-between-cci-and-trai-over-telecom-tariffs/article9791247.ece.

[3]Available at http://www.financialexpress.com/industry/trai-tells-cci-it-has-power-to-settle-competitive-telecom-tariff-issues/798026/.

[4] Available at http://trai.gov.in/sites/default/files/TTO_Amendment_Eng_16022018.pdf.

[5]Available at http://www.livemint.com/Industry/O00tAdsmeBgcObcQSE42uO/Telecom-firms-free-to-match-Reliance-Jios-cheap-tariffs-ru.html.

[6] Sections 19(6) and (7) of the Competition Act.

[7] Section 19(4) of the Competition Act.

[8]Available at http://www.livemint.com/Industry/uzSqE22Uk4Lgt1jX8PjCOJ/CCI-to-Trai-Consult-us-on-predatory-pricing-issues.html.

[9]Vodafone/Idea, Combination Registration No. C-2017/04/502; Bharti Airtel Ltd./Tata Teleservices Ltd., Combination Registration No. C-2017/10/531.

[10] Vodafone India Ltd. v. Competition Commission of India, 2017 SCC OnLine Bom 8524.

[11] Sections 21 and 21-A of the Competition Act.

OP. ED.

The Competition Act, 2002 (the Act) is a giant step towards reformation of anti-competitive policies over its precursor, the Monopolistic and Restrictive Trade Practice Act, 1969 (MRTP). Becoming fully operational in 2009, the Competition Commission of India (CCI) in these 9 years has witnessed varying kinds of cases coming up related to issues of economic concentration and unfair trade, with its jurisdiction extending to a wide area of e-commerce cases involving both online and offline transactions.[1] It has brought about many changes and has had wide-ranging effects on the business sector, both private and public.

Extraterritorial jurisdiction: To infinity and beyond

The Act incorporates extraterritorial jurisdiction as under Section 32 of the Act which is based on the “effects doctrine”.[2] The absence of such provision under the MRTP Act barred the scope of action against any anti-competitive conduct involving imports, and foreign cartels in particular.[3] The Act has categorically removed this restriction, thus having an enabling effect and giving CCI the power to take action against any foreign business entity indulging in any sorts of anti-competitive behaviour.

However, its application remains contentious as far as the turnaround time for the approval of combinations and quick decision making is concerned. There exist apprehensions if the CCI is logistically equipped sufficiently to strike a chord between the international competition law developments and domestic legislation and responsibilities. If the law does have extraterritorial reach and a domestic court or tribunal has jurisdiction to hear the case, practical problems of enforcement with respect to the obtaining of evidence and the implementation of any fines or penalties are likely to arise.

The CCI, despite being well empowered has not been successful in laying down any procedures or formulating any regulations to govern the time frame to act in matters falling outside India’s territorial jurisdiction. In today’s scenario, corporate dealing involving MNC’s often result in the creation of different synergies within different countries and hence are likely to give rise to conflicting opinions about the issue within competition regulators having jurisdiction over the case involved.[4] Considering the paucity of the jurisprudence on this issue, the stance of the CCI in the future matters would be of huge relevance in the determination of any well-settled position.

Penalising the guilt: The is and the ought

CCI imposes a plethora of penalties[5] for the reasons enshrined in the section and in Part VI of the act with the entire funds being credited to the Consolidated Fund of India.[6] In its first investigation, CCI had imposed a penalty of Rs 1 lakh on movie producers colluding against multiplexes.[7] However, recent trends show that former was nominal imposition for having an amicable start with penalties being imposed in huge proportions in the times to come. For example, the CCI did impose an equally hefty penalty of Rs 2500 crores in Automobiles case[8], Rs 1700 crores in the case against Maharashtra State Power Generation Company[9], etc.

In the last 9 years, the CCI has taken a different turn, recently approving the first ever leniency application for a cartel member because the partner of the firm confessed to the anti-competitive practices which prompted the CCI to reduce the fine by 75%. It recently notified the Competition Commission of India Lesser Penalty Amendment Regulations, 2017, stating that a confession about Cartelisation (if witness was complicit) will provide them with an amnesty/leniency from the imposed liability. This depicts that CCI is going through a streamlined approach adopting the propensity to charge more proportionally.

In Iridium India Telecom v. Motorola Inc.[10], the Supreme Court held that companies can be prosecuted for offences involving mens rea with the intent and direction provided by the directors and promoters being attributable to the company. However, under the Act there exists a criminal sanction only for non-compliance of the order passed[11] with no specific provision of such liability for anti-competitive practices. Keeping in view, these aspects the Act needs amendment for incorporation of criminal sanction to maintain the deterrence in conformity with Section 6 of the Act.

Appeals of CCI orders: Hear Hear

The increasing number of appeals to High Courts against the Competition Appellate Tribunal (COMPAT), the Competition Statutory Appellate Tribunal has not be welcomed positively since it leads to the overlapping of powers and multiplicity of efforts. In State of M.P. v. Nerbudda Valley Refrigerated Products Co. (P) Ltd.[12], the Supreme Court held that any writ petition cannot be accepted by any High Court if a statutory appellate mechanism exists. On the contrary, Paradip Port Trust v. Sales Tax Officer[13] laid down that no bar on such appeal to the High Court exists when there is any violation or non-compliance with the principles of natural justice or exceeding of jurisdictional limits by Compat, even if there exists any statutory appeal mechanism.

In 2013, the position was finally settled that such writ petitions filed against the CCI order are procedurally unfair as they lead to a direct appeal to High Court by surpassing COMPAT’s authority. In the Automobiles case[14] between Mahindra and Tata Motors the Court held the order should be challenged before COMPAT since it is functional. High Courts are not to interfere at this stage unless it is found to be a case of gross transgression of the jurisdiction or results in the breach of natural justice principles.[15] Otherwise, constitutionally, Article 226 is of a discretionary nature granting power to exercise the same to the High Court. Since most of the cases of appeal deal with statutory authority such conflict of jurisdiction requires a settled position of law.

Case closed or not

According to the Act, the Commission on the receipt of a complaint has to direct the initiation of an investigation into the allegations, based on which the Director General is supposed to submit a report. Though the Act explicitly grants CCI the authority to direct the Director General to investigate and close the matter if he detects no contravention and furthers the investigation, it does not provide for closure of the case even if the Director General finds any contravention with the Act during the investigation. Section 26 of the Act fails to provide for a situation where the Commission may not agree with the Director General’s findings after it finds a contravention, often nullifying the power of the parties to appeal to the higher authorities such as to the COMPAT or to the Supreme Court after the case has been struck down by the Commission.

Such a lacuna inherent in the Act has often led to a dispute about the powers granted under the Act to CCI and the authority and binding value of the Director General’s report. This contention was laid to rest in Gulf Oil Corp. Ltd. v. CCI[16] where the Court held that Director General’s report merely has a recommendatory nature and the CCI need not proceed under Section 26(7) in every case where it disagrees with the Director General’s report. There have been situations where cases have been closed by the Commission despite Director General stating otherwise, but this uncertainty can be resolved only when there is either a legislative amendment or by way of some purposive interpretation the judiciary.

Lag due to the lack: Recommendation for way ahead

The competition law requires multi-disciplinary inputs in its implementation and enforcement. The data reflects the inability of CCI to keep pace with the new market players due to technological advancements, insufficiency of data and shortage in staff and panel experts, thus affecting the process of expediting investigation and adjudication of matters. The initial few years witnessed a trend of delay in the disposal of cases due to lacking number of officials requiring appointment of experts from legal and economic backgrounds at different levels to help handle these cases. Resultantly, the performance has improved with respect to the disposal of case with the average disposal rate of merger control cases reducing from around 16.5 days in 2011-2012 to around 26.4 days in 2015-2016.[17]

To deal with the existing laxity, greater man power is needed which is presently built up through deputations and imports of officers from other departments. Thus a specialised task force would be more advantageous that this deputation based enforcement since such enforcement needs the expertise and sufficiency of manpower oriented to handle anti-competitive wrongdoings to move ahead. Thus, we recommend instituting a separate cadre for the CCI through the Indian competition services for the better and speedier addressing of the matters at hand. Under this service, we recommend to institutionalise the existing task force which would remove arbitrariness in the existing subjective standards.

The reason why CCI lags behind is because of its inability to keep pace with the latest advancements. An institutionalised workforce would address these concerns by providing a better equipped organisation structure that would facilitate in disposal mechanism, etc. The Indian competition regime has come a long way in the fields analysed above and it still has a long way to go to maintain the “fairplay” in Indian markets.

————-

* IIIrd year students, BA, LLB (Hons.), Batch of 2021, National Law University, Delhi.

[1]  Fairplay, Quarterly newsletter of CCI (2016) p. 19.

[2]  Kartik Maheshwari, Simonc Reis Extraterritorial Application of the Competition Act and its Impact, (2012) CompLR 144, 148.

[3]  Haridas Exports v. All India Float Glass Manufacturer’s Assn., (2002) 6 SCC 600 : AIR 2002 SC 2728.

[4]  Haridas Exports v. All India Float Glass Manufacturer’s Assn., (2002) 6 SCC 600 : AIR 2002 SC 2728.

[5]  Competition Act, 2002, S. 27.

[6]  Competition Act, 2002, S. 47.

[7]  Film & Television Producers Guild of India v. Multiplex Assn. of India, 2013 SCC OnLine CCI 89.

[8]  CCI, Shamsher Kataria v. Honda Shiel Gas India Ltd., 2015 SCC OnLine CCI 114 : [2015] CCI 133

[9]  Maharashtra State Power Generation Co. Ltd. v. Mahanadi Coalfields Ltd., 2017 SCC OnLine CCI 11.

[10]  (2005) 2 SCC 145.

[11]  Competition Act, 2002, Ss. 42, 48.

[12]  (2010) 7 SCC 751.

[13]  (1998) 4 SCC 90.

[14]  CCI, (n. 8)

[15]  State of U.P. v. Mohd. Nooh, AIR 1958 SC 86.

[16]  2013 SCC OnLine Comp AT 132 : [2013] Comp AT 122.

[17]  Competition Commission of India, Annual Report 2015 (2016), p. 50.

Cabinet DecisionsLegislation Updates

The Union Cabinet has given its approval for rightsizing the Competition Commission of India (CCI) from 1 Chairperson and 6 Members (totalling seven) to 1 Chairperson and 3 members (totalling 4) by not filling the existing vacancies of 2 members and 1 more additional vacancy, which is expected in September, 2018 when one of the present incumbents will complete his term.

Benefits:

The proposal is expected to result in reduction of 3 posts of members of the Commission in pursuance of the Governments objective of “Minimum Government – Maximum Governance”.

As part of the Governments objective of easing the mergers and amalgamation process in the country, the Ministry had revised de minimis levels in 2017, which have been made applicable for all forms of combinations and the methodology for computing assets and turnover of the target involved in such combinations, has been spelt out. This has led to reduction in the notices that enterprises are mandated to submit to the Commission, while entering into combinations, thereby reducing the load on the Commission.

The faster turnaround in hearings is expected to result in speedier approvals, thereby stimulating the business processes of corporates and resulting in greater employment opportunities in the country.

Background:

Section 8(1) of the Competition Act, 2002 (the Act) provides that the Commission shall consist of a Chairperson and not less than 2 and not more than 6 members. Presently, the Chairperson and 4 members are in position.

An initial limit of 1 Chairperson and not more than 10 members was provided in the Act, keeping in view the requirement of creating a Principal Bench, other Additional Bench or Mergers Bench, comprising at least 2 members each, in places as notified by the Central Government. In the Competition (Amendment) Act, 2007 (39 of 2007), Section 22 of the Act was amended removing the provision for creation of Benches. In the same Amendment Act, while the Competition Appellate Tribunal (CAT) comprising one Chairperson and 2 members was created, the size of the Commission itself was not commensurately reduced and was kept at 1 Chairperson and not less than 2 but not more than 6 members.

The Commission has been functioning as a collegium right from its inception. In several major jurisdictions such as in Japan, USA and U.K. Competition Authorities are of a similar size.

[Press Release no. 1527701]

Cabinet

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): CCI has dismissed allegations of abuse of dominant position against Nissan Motor India Pvt. Ltd. in terms of after-sales service while observing that the issue raised in the information pertained to alleged deficiency in services and no case of contravention of the provisions of Section 4 of the Competition Act was made out against Nissan Motor India Pvt. Ltd. The information before the Commission was filed against Sterling Vehicle Sales Pvt. Ltd. (an authorised dealer of Nissan Motor) and Nissan Motor India Pvt. Ltd. alleging contravention of the provisions of Section 4 of the Act. Earlier, the services and maintenance of the Nissan car of the informant were done from the service centre (Sterling Vehicle Sales Pvt. Ltd.), but many defects like unusual sound, faulty engine etc. emerged after the servicing. The Informant alleged that either the car has manufacturing defect or was damaged by service centre’s carelessness and negligent handling. Before CIC, informant prayed the Commission to issue a cease and desist order against the Opposite Parties restraining them from indulging in the alleged unfair and erroneous trade practices and direct them to exchange the defective car with a brand new car of the same model. The Informant also prayed that the Opposite Parties be directed to pay compensation to the tune of Rs. 2 lakhs towards the mental harassment and inconvenience caused. After hearing the parties, CIC observed that for making out a case for contravention of the provisions of Section 4 of the Act, the dominant enterprise has to be shown to have abused such position in the relevant market but the informant has not indicated any relevant market where any of the Opposite Parties is shown to be dominant. While observing that, “the grievances made by the Informant essentially pertain to alleged deficiency in services and none of the abusive instances as alleged in the information comes within the purview of Section 4(2) of the Act,” CIC closed the matter. [Jolly Diclause v. Sterling Vehicle Sales Pvt. Ltd., [2016] CCI 25, decided on June 7, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Business strategy by Bajaj Corporation for its product ‘Almond Drop Hair Oil’ was scanned by the competition regulator on information received by one of the distributors of Bajaj. CCI found that Bajaj had allocated area of business to every dealer and there was a vertical restraint imposed on the distributors to supply the products in the area limited by the company and the arrangement was monitored and enforced by Bajaj Corp. Such the practice of allocation of geographical area to its distributors amounts to exclusive distribution agreement (EDA) under section 3(4)(c) of the Competition Act. Bajaj had also indulged in resale price maintenance (RPM) by prescribing rate at which its products were to be re-sold by the dealers to the retailers. It was alleged by the informant that in order to ensure that there was no intra-brand competition or price competition of its products, Bajaj imposed RPM type vertical restrictions upon its dealers.

CCI observed that there are many players in the FMCG market in India providing consumer products and services in the areas of Health and Beauty, which indicates that the market of hair oil is wide and consumers have various brands as options to choose from. Bajaj does not have position of strength in this sector in comparison with other brands in market structure of FMCG products and particularly the hair oil segment in India. CCI opined that in the presence of several companies and considering the dynamic nature of the sector, conducts of Bajaj are unlikely to affect the inter-brand competition in the market. After considering effect of the impugned conducts of Bajaj on the touchstone of factors elucidated under section 19(3) of the Act, CCI opined that vertical restraints imposed by Bajaj upon its distributors have not been shown to have caused appreciable adverse effect on competition (AAEC) nor is there any appreciable effect on the benefits accruing to the ultimate consumers. On RPM the Commission noted the price suggestion was merely recommendatory in nature and that a bulk purchaser was free to sell the product at lower price. [In Re: Ghanshyam Dass Vij and Bajaj Corp. Ltd., [2015] CCI 155 decided on 21.10.2015]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India: CCI in its closure order in a case against TN Cable TV Corporation for alleged abuse of dominance noted that there are different mechanisms for transmitting/ re-transmitting signals of TV channels e.g. Terrestrial, Cable TV (analog and digital), Direct To Home (DTH), Head-end In The Sky (HITS), Internet Protocol TV (IPTV) and Mobile TV etc. These platforms cannot be treated similar and can be divided in different market based on economic affordability and their reach to the masses. In the present case the informant, a broadcaster disseminating TV signals through cable TV and DTH, alleged that Tamil Nadu Arasu Cable TV Corporation (“OP”), a state owned Multi System Operator (MSO), is charging unfair and discriminatory prices and has blacked out the channel of the informant. OP has deliberately chosen not to sell/ fix price for the prime band which is the most precious band in the analog cable TV network. It alleged that OP has limited and restricted the choice of the consumers and thereby caused adverse effect to competition to favour the channels of a particular political class.
The Commission held that the relevant product market in the present case would be “Re-transmission of channels through Cable TV Networks”. The OP is found to be in dominant position in this relevant product market in the state of Tamil Nadu except city of Chennai. (Chennai was separated from relevant geographic market because the city is covered under Digital Addressable System of the Government of India). However, the Commission observed that determination of price charged by the OP was done through tender process in terms of the policy of Government of Tamil Nadu, therefore it cannot be termed to be unfair and discriminatory. The closed the matter noting that no prima facie case is made out to order investigation. It is also noteworthy that a writ petition filed by the informant against the conducts of the OP is sub judice before the Madras High Court. [Makkal Tholai Thodarpu Kuzhumam v. Tamil Nadu Arasu Cable TV Corporation, [2015] CCI 145, decided on 29.09.2015]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI):  CCI maintaining distance from the jurisdiction of electricity sector regulators State Electricity Regulatory Commissions (SERCs) denied to examine fixation of electricity tariffs under the provisions of S. 4 of the Competition Act, 2002. The informant association alleged abuse of dominance position by Tata Power Delhi, BSES Rajasthani Power, BSES Yamuna Power, Punjab State Power Corp, Haryana Bijali Vitaran Nigam and HP State Electricity Board by imposing unfair and discriminatory conditions and by influencing and making unreasonable suggestions to respective SERCs for increasing various charges for “Open Access” and the tariff for power. Informant alleged that by continuously increasing cross subsidy, Open Access charges the consumers have been constantly prevented from utilizing the feature of Open Access, and thereby cheaper power and it have resulted in denial of market access to the members of the Informant, creation of entry barriers and foreclosure of competition.

CCI opined on the jurisdiction issue that that there is no overlap in the jurisdictions exercisable by it and the SERCs. It said that sectoral regulators (here SERCs) focus on the dynamics of specific sectors, whereas the it has a holistic approach and focuses on functioning of the markets by way of increasing efficiency through competition. The roles played by the CCI and the sectoral regulators are complementary and supplementary to each other as they share the common objective of obtaining maximum benefit for the consumers.

CCI, to further examine the matter, made references to SERCs of Punjab, Haryana, Delhi and Himachal Pradesh on the central issue agitated by the Informant i.e. increase in Open Access charges. After considering replies of the SERCs and the provisions of Electricity Act, 2003, CCI observed that scheme of the Electricity Act and the regulatory architecture provided thereunder, makes is abundantly clear that the charges for Open Access are to be decided by the respective SERCs. The concerned State Electricity Regulator and the Appellate Authority in terms of the statutory architecture governing the regulation of open access and determination of the relevant tariffs thereto would deal any issue in this regard. It also noted that matters pertaining to this issue are already pending before the Appellate Tribunal for Electricity (APTEL) and the Supreme Court.

CCI ordered for closing the case observing that the issue highlighted by the Informant in the present case is essentially related to the regulatory functions discharged by the State Regulatory Commissions in respect of fixation of tariffs. No competition issue is involved in the factual matrix disclosed in the information. [In re: Open Access Users Association and Tata Power Delhi Distribution,  [2015] CCI 146, decided on 29.09.2015]

Tribunals/Commissions/Regulatory Bodies

Competition Commission of India: The CCI while closing case against Ansal Properties & Infrastructure Ltd ruled that consumer related issues do not come under the ambit of the Competition Act, 2002 (the Act).

The informant was aggrieved by the conduct of Ansal Properties for non-compliance of an order passed by the Delhi Consumer Dispute Resolution Forum in two cases filed by the Informant and his wife.  It was alleged that Ansal was not paying the amount as directed by the Consumer Forum. 

The CCI found that allegation of the informant for non-compliance of Consumer Forum order does not fall within the jurisdiction of the CCI under the Act because the issue raised does not involve any issue which contravenes the provisions of the Act, In Re:Mr. Preetam Chhabra v. Ansal Properties & Infrastructure Ltd , Case No. 37 of 201, decided on 25.06.2015

 

Tribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): While rejecting the allegations of unfair trade practices against Bank of Baroda in the market of commercial/corporate loan in India, CCI closed an information filed by Uttarakhand-based firm Dhanvir Food Product in the matter. Said information was filed by Dhanvir Food Product, which had availed of a term loan of Rs 7.25 crore from the bank for construction of factory building and also to purchase plant and machinery, alleging that the penalty imposed by the Bank upon the Firm to foreclose the loan account was in violation of the guidelines issued by the Reserve Bank of India (RBI) and hence, arbitrary, unreasonable and anti-competitive. It was alleged in the information that the Bank had imposed a penalty of Rs.18,86,711/- to foreclose the loan account of the Informant for the residual period of 65 months in terms of clause 25 of the sanction letter. After perusal of relevant documents and hearing both the parties, CIC observed, “the Informant has not provided any material to show that Opposite Party-2 (Bank of Baroda) have been imposing pre-payment penalty or foreclosure charges in pursuance of some agreement entered into by them with any other enterprise engaged in similar trade or business. Thus, prima facie, no case of contravention of Section 3 can be made out against the Opposite Part-2 in the instant case.” The Commission also turned down the contention of the Informant regarding abuse of dominant position by the Bank on the ground that as Bank of Baroda was not in dominant position in the relevant market, it cannot be held guilty of abuse of dominant position, Dhanvir Food Product v. Bank of Baroda, 2015 CCI 10, decided on 02.06.2015

Tribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): CCI imposed a total fine of about Rs 64 crore on GlaxoSmithKline Pharmaceuticals Ltd. and Sanofi Pasteur India for collusive bidding in supply of a meningitis vaccine to the government for Hajj pilgrims and subsequently plotting to charge higher prices in the government tender for the said vaccine. The order of Commission came upon an information filed by Bio-Med Pvt. Ltd., a pharma company, which also makes polysaccharide Quadrivalent Meningococcal Meningitis (QMMV) vaccines. The information was filed against GlaxoSmithKline Pharmaceuticals Ltd., Sanofi Pasteur India and Health and Family Welfare Ministry was also made party in the matter. It was alleged in the information that Government introduced and modified the turnover conditions for eligibility of the participating bidders to supply the particular vaccine without any reasonable rationale and explanation. It was further alleged that GlaxoSmithKline Pharmaceuticals Ltd. and Sanofi Pasteur India, also cartelized through bid rotations and geographical allocations. CCI in its investigation found that both companies were acting pursuant to an anti-competitive agreement and formed a cartel to get government tenders to supply meningitis vaccine which was required to be administered upon the pilgrims who wish to go on annual pilgrimage of Hajj. After perusal of material on record and hearing both the parties, CCI found GlaxoSmithKline Pharmaceuticals Ltd. and Sanofi Pasteur India liable for violation of the provisions of the Competition Act, 2002 and levied penalty to the extent of three per cent of the turnover both on GlaxoSmithKline Pharmaceuticals Ltd. and Sanofi Pasteur India (aggregating to Rs 60.49 crore and Rs 3.04 crore, respectively) and gave both companies sixty days to deposit the amount. Apart from imposing penalties, the Commission has directed GlaxoSmithKline and Sanofi to “cease and desist” from anti-competitive practices, In re: Bio-Med Pvt. Ltd. v. Union of India, 2015 CCI 11, decided on 04.06.2015

Tribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): In the series of its orders against trade unions/associations for anti-competitive agreements, the CCI yesterday found the arrangement relating to distribution of films for releasing between the Opposite Parties (Ops) namely, Kerala Film Exhibitors Federation (OP1), Kerala Film Distributors Association (OP2), and Kerala Film Producers Association (OP3) in violation of section 3(3)(b) of the Competition Act, 2002.

The Commission held that OP-1, OP-2 and OP-3 have transgressed their legal contours and indulged in collective decision making to limit and control the exhibition of films in the theatres other than the ones owned by the members of OP-1. The Commission did not see any rational justification for prescribing such criteria which is exclusionary in nature.

It declared that the Competition Act condemns such decisions taken by the associations which limits/ restricts the supply of goods/ services and affects competition in the market. The Commission viewed that the collusion between the OPs without any logical basis was nothing but the manifestation of their anti-competitive conduct to benefit the members of OP-1 at the expense of other theatre owners and movie goers i.e., consumers.

It is found that the OP1 was the main culprit behind the cartel conduct and the members of OP2 succumbed to the restriction imposed by the OP1.  The Commission cleared that OP-2 is guilty of not distributing movies to the theatres of the members of the Informant and thus violating section 3(3)(b) read with section 3(1); of the act. However, OP3 was not found guilty because of its non-compliance with the arrangement between the Ops for limiting and restricting distribution, and boycotting release of films. 

The Commission ruled that the office bearers of the OP1 and OP2 are liable to penalty under section 48. During the period of contravention, they were actively involved in the affairs of their respective associations and as such they are responsible for the anti-competitive decision making by their respective associations, Kerala Cine Exhibitors Association  v. Kerala Film Exhibitors Federation, 2015 CCI 15,decided on 23rd June, 2015

 

Ed. Note: In this order the Commission did not find the OP3 guilty of cartelization even though OP3 was signatory party to the agreement, because OP3 did not comply with the decision taken in the agreement and its conducts did not show that it (OP3) was against the wide release of the movies. This brings a new development in the competition law that section 3 will not attract if a party to an anti-competitive agreement is not acting upon it.

 

 

Tribunals/Commissions/Regulatory Bodies

Competition Commission of India: The Competition Commission of India (CCI) in its suo moto cognizance found thirteen suppliers/manufacturers (opposite parties) of containers with disc required for 81 mm bomb have engaged in the practices of determination of purchase price of “CN Container” (the Product) and collusive bidding in contravention of the provisions of sections 3(3)(a) and 3(3)(d) read with section 3(1); of the Competition Act, 2002.

The CCI considering the remote possibilities of direct evidence in the case of cartel reiterate its earlier decisions that the existence of an anti-competitive practice or agreement can be inferred from the circumstantial evidence i.e. conduct of the colluding parties.  Such conduct may include a number of coincidences and indicia which, taken together and in absence of any plausible explanation, points towards the existence of a collusive agreement.

The Commission noted that quotation of identical price without any satisfactory justification on production cost gives apparent evidence to price collusion adopted by the opposite parties. The Commission was of the opinion that common ownership of a large number of opposite parties, through related directors, coupled with the fact that a number of opposite parties quoted same rates indicates to a conclusion that the opposite parties acted pursuant to an anti-competitive agreement/understanding to manipulate the bidding process in the present case. Price parallelism coupled with peculiar market conditions like few enterprises with same owners, stringently standardized product, predictable demand, etc., unequivocally establishes that the conduct of the Opposite Parties of quoting identical/ similar price bids was only due to collusive tactics adopted by them in violation of section 3(1); read with sections 3(3)(a) and section 3(3)(d) of the Act.

The Commission noted that, in the absence of any such an anti-competitive agreement, the bidders would have not only competed against each other (on price) but may have also undercut each other to secure the contract which would have resulted in lower prices for the consumers. Therefore, the consumers, i.e., the three ordinance factories, have also been deprived of the benefits that could have accrued to them on account of the competitive bidding process. The Commission in its order directed the opposite parties to cease and desist from the anti-competitive practices and imposed a penalty at the rate of 3% of the average turnover of the relevant financial years, In re: Sheth & Co.,2015 CCI 12, decided on 10/06/2015

Tribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): CCI has dismissed a complaint filed against Kent RO Systems, alleging unfair business practices with respect to sale of spare parts and services/maintenance of Kent RO water purifier systems. The Informant alleged that Kent RO Systems being a dominant player had through contracts limited the access of independent repairers and other multi-brand service providers to genuine spare parts required to effectively compete with the authorised dealers of the company. It was also alleged that by charging exorbitant price for its spare parts and after sales service, Kent RO Systems has charged a price which is unrelated to the “economic value” of the product, which in absence of the dominance that it currently enjoys in the relevant market could not have been otherwise charged. After perusal of documents, CCI observed that no case of contravention of the provisions of the Competition Act has been made out against Kent RO Systems in the matter. CCI observed that the allegations of the informant regarding non-availability of the spare parts of Kent RO water purifier systems in the market are proved false as the spare parts can be purchased online by the customers. While noting that the informant failed to adduce a single document or any pricing data to support the assertion that the prices charged by Kent RO Systems are “exorbitant” and “unusually high”, CCI dismissed the information. (Amitabh v. Kent RO Systems, 2015 CCI 4, decided on February 26, 2015)

Tribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): CCI has rejected an information filed by Muthoot Mercantile Ltd. alleging that 12 commercial banks including State Bank of India had entered into an anti-competitive arrangement to determine the price and control the gold loan business and formed a cartel for offering and marketing gold loan products. Other banks which were included are IDBI, Canara Bank, Indian Overseas Bank, Federal Bank, South Indian Bank, Central Bank of India, Syndicate Bank, Vijaya Bank, Dhanlaxmi Bank, State Bank of Travancore and Catholic Syrian Bank. Muthoot Mercantile Ltd., in its information had contended that all the 12 Banks were forming a cartel and launching a new gold loan product viz. agri-gold loan at the rate of four percent (4%) thereby causing adverse/detrimental effect on the informant and other similarly situated NBFCs dealing in gold loan. Informant also alleged that offering loans at the rate of 4% under the guise of agricultural loan against the pledge of gold, is abuse of Interest Subvention Scheme of the Government of India as even RBI had clarified that the benefit of Interest Subvention Scheme was not meant for agri-gold loans or gold loan. After perusing the record, CCI observed that there was no material on record which is indicative of any collusion or concerted practice on the part of the Banks which can be said to be in contravention of the provisions of Section 3 of the Act or can be termed as anti-competitive. While rejecting the contention of the informant, CCI observed that prima facie, no case of contravention of the provisions of either Section 3 or Section 4 of the Competition Act, 2002 has been made out against the banks and dismissed the information. (Muthoot Mercantile Ltd. v. State Bank of India, 2014 CCI 77, decided on December 30, 2014)

Tribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): CCI has rejected a complaint filed by Kalpataru Enterprises, a franchisee of Reebok India Co. alleging that Adidas AG, Reebok International Ltd and Reebok India Company, as a group, abused its dominant position in the relevant market of sale of premium sports goods in Noida. It was alleged in the complaint that the terms and conditions of the Franchisee Agreement signed between Kalpataru Enterprises and Adidas AG Group are not only unfair but also discriminatory vis-à-vis other franchisees as other Franchisee owners are receiving a higher rate of commission and assurance of a minimum guaranteed payment for operating the retail outlet was also given to other franchisees. It was averred that such discriminating practice of the Adidas AG Group had put some franchisees/retailers at a competitive disadvantage position vis-à-vis the others thus, causing an appreciable adverse effect on competition in the downstream market. It was further stated that the said acts of the Adidas AG Group amounted to imposition of discriminatory conditions which is in infringement of the provisions of Section 4(2) (a) (ii) of the Competition Act, 2002. After hearing the parties, CCI observed that though Adidas AG Group appears to be a dominant group in the relevant market, allegations of complainant seem to be baseless and not amounting to an abuse of dominant by the Adidas AG Group within the meaning of Section 4 of the Act. CCI said, “the Commission finds two fundamental flaws in the allegations made by the Informant. Firstly, the Agreement which was termed as unfair and arbitrary was entered into in 2003 when the alleged dominant group had not even come into existence. Secondly, even if the submission of the Informant regarding dominance of the Adidas AG Group is accepted post the formation of group in 2005, the conduct of the Adidas AG Group vis-à-vis the Informant remained same (as the Agreement  was said to be continued on same terms and conditions). Further, as per Informants own submissions, the agreement with M/s Neelkanth Traders was more favourable than the one with it which fact goes against the allegation of abuse by the Adidas AG Group.” “A manufacturer is not being obligated to follow a single template agreement throughout its existence. With passage of time and operations, the commercial arrangements may undergo a change,” CCI added. (Om Datt Sharma v. Adidas AG, Case No. 10 of 2014, decided on May 13, 2014)


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