Tribunals/Regulatory Bodies/Commissions Monthly Roundup

Here’s a run-through of all the significant decisions covered in the month of June, 2021 under the Section of Tribunals/Commission/Regulatory Bodies.


Armed Forces Tribunal

♦ AFT | Pension cannot be denied for disability being less than 20% where the disability is assessed at 15-19%“

The assessment of disability to the tune of 15-19% itself is a doubtful assessment and cannot be final for the simple reason that there is no barometer which can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus also. In case of doubt as the benefit should always be given to the applicant.”

https://wp.me/scenps-pension


Competition Commission of India

♦ CCI examines if airlines were involved in cartelization resulting in anti-competitive practice during Jat Agitation in 2016 || Synoptic view of Judgment

“…with the use of algorithms, there exists a high possibility of collusion with or without the need of human intervention or coordination between competitors.”

https://wp.me/pcenps-130u

♦ ABFI prohibits State Baseball Associations from joining unrecognised leagues, threatens disciplinary action | CCI to examine such conduct in light of provisions of Competition Act

“ABFI isued communication to its affiliated State Baseball Association requested them no to entertain unrecognized bodies and further by requesting them not to allow their respective State players to participate in any of the tournaments organized by such unrecognized bodies, has violated the provisions of Section 4(2)(c) of the Act as it resulted in denial of market access to other federations.”

https://wp.me/pcenps-130J

♦ CCI | Did Google leverage dominance in Play Store? Director-General to conduct investigation in complaint by smart phone/smart TV users

“..by making pre-installation of Google’s proprietary apps conditional upon signing of ACC for all android devices manufactured/distributed/marketed by device manufacturers, Google has reduced the ability and incentive of device manufacturers to develop and sell devices operating on alternative versions of Android and thereby limited technical or scientific development relating to goods or services to the prejudice of consumers in contravention of Section 4(2)(b) of the Act.”

https://wp.me/scenps-google

♦ Are Tourist Taxi Unions in State of Goa preventing entry of App-based Taxi Aggregator Companies in Goa? Read a detailed account of CCI’s decision

“..despite the opposition of taxi unions, the State of Goa does not appear to have acceded to or conceded to the demands of the OPs and the policy allowing entry of app based taxi aggregators was eventually notified.”

https://wp.me/pcenps-13au

♦ CCI | Co-location facility of National Stock Exchange is anti-competitive? Is the service an autocratic move against traders? Comprehensive Report

A robust exchange acts as a backbone of the financial system and the provision of co-location facility by exchanges help increase volumes of trades manifold and provides liquidity to investors. This augurs well for the market, the companies and the economy.

https://wp.me/pcenps-13aA


Customs, Excise and Services Tax Appellate Tribunal

♦ CESTAT | Assessable Value to include Advertising and Marketing Costs, if relatable to Imported Goods; Tribunal provides relief to Volvo Auto India

https://wp.me/pcenps-1312


Income Tax Appellate Tribunal

♦ ITAT | Whether DTAA protection in respect of taxation of dividend in source jurisdiction, can be extended to ‘dividend distribution tax’ under S. 115-O, Income Tax Act, in the hands of a domestic company? Matter referred to larger Bench

“Whether the protection granted by the tax treaties, under Section 90 of the Income Tax Act, 1961, in respect of taxation of dividend in the source jurisdiction, can be extended, even in the absence of a specific treaty provision to that effect, to the dividend distribution tax under Section 115-O in the hands of a domestic company?”

https://wp.me/scenps-taxation


National Consumer Disputes Redressal Commission

♦ NCDRC | In a case of death insurance claim, can police investigation be replaced by private agency investigation engaged by insurance company? Commission spells out

Inquest is conducted as mandated under the Cr.P.C., Post Mortem is conducted by the concerned government Medical Officer, Investigation is conducted by the Police (a private agency engaged by the Insurance Co. does not substitute for the Police).

https://wp.me/pcenps-12Zd

♦ NCDRC | Builder unilaterally, high-handedly cancels sale agreement on not handing over timely possession: Commission decides builder-buyer dispute, levies interest to be paid by builder

“According to Section 8 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, if the builder is not able to hand over the possession over the building/flat within the time specified in the agreement then the builder is liable to pay interest to the purchaser of the flat for the period for which the possession has not been handed over.”

https://wp.me/pcenps-139u


National Company Law Appellate Tribunal

NCLAT | Can Banks debit amounts from Corporate Debtor Company after Moratorium Order? Is there an obligation of releasing ‘title deeds’ under Resolution Process? Read on

Banks cannot freeze accounts, nor can they prohibit the ‘Corporate Debtor’ from withdrawing the amount as available on the date of the moratorium for its day-to-day functioning.

https://wp.me/pcenps-12UG


Real Estate Regulatory Authorities

Rajasthan Real Estate Regulatory Authority, Jaipur

♦ Is S. 13 of RERA Act a mandatory requirement? Can promoter demand cost of plot more than 10% before registering sale agreement? | Raj RERA decides

https://wp.me/scenps-rera

Maharashtra Real Estate Regulatory Authority, Mumbai

♦ Can promoter/builder sell covered car parking by charging certain amount? Whether open parking has to be handed to society or can be sold in open market? MahaRERA decides

https://wp.me/pcenps-133Q


State Consumer Forums

State Consumer Disputes Redressal Commission, U.T. Chandigarh

♦ Consumer spending hefty amount has right to ask for record of expenditure. Can service provider evade liability? Read on

…every person who is shredding hefty amount from his pocket towards the services being provided to him, has the right to know as to how, where and in what manner, the same has been utilized.”

https://wp.me/pcenps-12OG

Consumer Disputes Redressal Commission Gujarat State, Ahmedabad

♦ Consumer Forum | Can complainant raise consumer dispute where excess electricity duty is charged? Is he overriding statutory remedy if he already approached the Collector? Read on

“Section 3 of Consumer Proetction Act cannot be said to be inconsistent with Rule 12 of the Electricity Duty Rules.”

https://wp.me/pcenps-12Ns

State Consumer Disputes Redressal Commission, Telangana

♦ Can insurance company repudiate claim if insured suppresses fact of suffering from ailment while taking policy? Telangana State Consumer Forum answers

“If the insurer can show that prior to the date of declaration of being healthy, the insured was suffering with ailment which was within her knowledge but was suppressed, then the insurance company is well within its right to repudiate the claim on the ground of suppression veri.”

https://wp.me/pcenps-134C


Securities Appellate Tribunal

♦ Oscillating Independent Director; SAT to determine independency of Pradip K. Khaitan, independent director of Dhunseri Ventures Ltd.

https://wp.me/pcenps-12PM

♦ SAT | SEBI exonerated preferential allottees, exit providers and LTP contributors from manipulation | SAT terms it ‘cryptic’

https://wp.me/pcenps-135j

♦ SAT | Franklin Templeton gets interim relief | Gives due consideration to the 2 decades’ reputation

https://wp.me/pcenps-138Y


Securities Exchange Board of India

♦ Infosys insider trading | While in possession of Unpublished Price Sensitive Information, 2 employees of Infosys & 6 other entities violated Insider Trading Regulations on Infosys Stock [Detailed Report]

“The liability of acting partners and non-acting partners (collectively known as firm) for the injury to the third party is an outcome of joint and several liability of such partners under IPA, irrespective of whether that the conduct (act of omission or commission of the firm) which gave rise to the loss/injury to the third party is also in violation of any provision under securities law.”

https://wp.me/scenps-infosys

♦ Decoded | SEBI bars Director of Franklin Templeton AMC,  wife from accessing securities markets for 1 yr: Can redemption of units by Director of a mutual fund AMC be titled as fair conduct?

Laws dealing with information asymmetries (PIT Regulations and PFUTP Regulations) essentially seek to address the issues arising out of disparities in access to material information, that is otherwise not legally available to general investors, and to prevent those persons having access to such superior information from exploiting the informational advantage, in order to protect the integrity of the market and maintain investor confidence.

https://wp.me/pcenps-12Vh

♦ SEBI | Not so “independent” Independent director and a concocted scheme with affinity and consanguinity |SEBI takes on each violation with mordant remarks

“…remuneration and qualification are two crucial criterions to evaluate and adjudge the significance of a position held by a person in an organisation and his importance and status in participating in the management of a company.”

https://wp.me/pcenps-133k

♦ SEBI | Kingfisher’s chopped wings and shrinked wingspan | United Breweries Acquisition | Heineken exempted from the obligation under Takeover Regulations with exceptions

https://wp.me/pcenps-135X

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) ordered an investigation by the Director-General against Google in view of prima facie contravention of provisions of Competition Act.

Informants filed the instant case under Section 19(1)(a) of the Competition Act against Google LLC, Google India Private Limited, Xiaomi Technology India Pvt. Ltd. & TCL India Holdings Pvt. Ltd. alleging contravention of various provisions of Sections 3 and 4 of the Act. OPs to be referred to as ‘Google’.

Informants stated that they were the consumers of Android-based smartphones, television devices and alleged that Google was guilty of anti-competitive practices which violate Section 4 with Section 32 of the Act.

It was alleged that Google imposed several restrictions, as summarized below, upon smart TV and smart mobile device OEMs by virtue of the agreements entered into with them which tantamount to abuse of its dominant position by Google, in terms of various provisions of Section 4 of the Act.

Analysis

It was noted that Google enters into two agreements with Android TV licensees i.e. Television App Distribution Agreement (TADA) and Android Compatibility Commitment (ACC).

Google makes AOSP available to any third parties under an open-source license, however, the Android Open Source Project license does not grant OEMs, the right to distribute Google’s proprietary apps such as Play Store, YouTube, etc. referred to as Google Applications in TADA. The AOSP license further does not grant Original Equipment Manufacturers (OEMs), the right to use the Android logo and other Android-related trademarks. In order to obtain those rights, Google requires OEMs to sign an optional, non-exclusive agreement, i.e. TADA. Further, TADA requires the OEMs to be in compliance with a valid and effective ACC.

Commission prima facie opined that by making pre-installation of Google’s proprietary apps conditional upon signing of ACC for all android devices manufactured/distributed/marketed by device manufacturers, Google has reduced the ability and incentive of device manufacturers to develop and sell devices operating on alternative versions of Android and thereby limited technical or scientific development relating to goods or services to the prejudice of consumers in contravention of Section 4(2)(b) of the Act.

ACC prevents OEMs from manufacturing/ distributing/ selling any other device which operates on a competing forked Android operating system.

Therefore, the dominance of Google in the relevant markets and pronounced network effects, by virtue of the stated restriction, developers of such forked Android operating system are denied market access resulting in violation of Section 4(2)(c) of the Act.

Further, Commission prima facie opined that obligations which appear to be applicable across all the devices manufactured by OEMs are akin to making a conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts and thus, violative of provisions of Section 4(2)(d) of the Act.

In relation to the mandatory preinstallation of all the Google Applications under TADA, it is observed that the device manufacturers who sign this agreement cannot pick and choose from the Google Applications for preinstallation. In essence, this entails compulsory tying of ‘must have’ Google apps, which is in contravention of Section 4(2)(a)(i) of the Act.

Elaborating more on the above aspect, Commission stated that Google prima facie leveraged dominance in Play Store in contravention of Section 4(2)(e) of the Act.

Commission directed the Director-General (‘DG’) to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act and the same to be completed within a period of 60 days.

As per the Coram, a case was made out for directing an investigation by the DG.[Kshitiz Arya v. Google LLC, 2021 SCC OnLine CCI 33, decided on 22-06-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi, (Members) expressed that:

State of Uttarakhand formulated the Liquor Wholesale Order in a manner through which State officials were vested with exclusive powers which included discretion to dictate as to what brands of alcoholic beverages were to be procured and distributed to retailers and sold to end-consumers.

The instant case was by International Spirits and Wines Association of India (Informant) against Uttarakhand Agricultural Produce Marketing Board (OP – 1), Garhwal Mandal Vikas Nigam Ltd. (OP – 2) and Kumaun Mandal Vikas Nigam Ltd. (OP – 3) alleging contravention of the provisions of Section 4 of the Act.

Informant company is a representative body of International Spirits and Wines Companies which includes the following:

(a) Bacardi India Private Limited;

(b) Beam Global Spirits & Wine (India) Pvt. Ltd.;

(c) Brown Forman Worldwide LLC;

(d) Diageo India Private Limited;

(e) Edrington Marketing;

(f) Moet Hennessy India Private Limited;

(g) Pernod Ricard India Private Limited (‘Pernod’);

(h) United Spirits Limited (‘USL’); and

(i) William Grant and Sons Limited.

State of Uttarakhand issued an Excise Policy which provided that a new wholesale arrangement shall be brought into force within one month of the notification of such policy. OP-1 was appointed as the exclusive wholesale licensee for foreign liquor/beer/wine including Indian Made Foreign Liquor in the State of Uttarakhand. OP-2 and OP-3 were appointed as the exclusive sub-wholesalers of alcoholic beverages.

Monopoly

Allegation in respect to the above was, that the appointment of the above-stated caused monopoly vested in the OPs making them dominant in the relevant market.

Later, Uttarakhand Government issued a new excise policy in terms of which OP-2 and OP-3 ceased to operate as licensees. Hence, since 2016 Uttarakhand Government discharged OP-1 from all responsibilities of dealing with the procurement of alcoholic beverages in State of Uttarakhand.

How were the OPs taking advantage of their monopoly and abused their dominance? 

  • The OPs were placing orders with alcoholic beverage manufacturers for supply of IMFL in an arbitrary and discriminatory manner with no relation to the consumer demand, for certain brands of beverages in the market.
  • The OPs were not procuring alcoholic beverages of certain brands, despite demonstrably high consumer demand for such alcoholic beverages and thereby discriminating against manufacturers of these beverages. This resulted in the replacement of IMFL brands of certain members of the Informant with the brands of other alcoholic beverage manufacturers, for which there was significantly less demand when the Informant’s members were supplying in the ordinary course.
  • The OPs were not maintaining minimum stock levels and were not supplying IMFL brands in accordance with the retailers’ demand, despite express stipulation in Clauses 10 and 11 of the Liquor Wholesale Order.

Commission prima facie vide it’s order dated 19-07-2016 directed the DG to cause an investigation into the matter and submit the investigation report.

DG noted that OP-1 disregarded the mechanism of procurement of different brands of alcoholic beverages as per the Liquor Wholesale Order and order of Additional Commissioner of Excise. It was found that OP-1’s arbitrary approach in placing orders for alcoholic beverages resulted in gross decline in procurement of alcoholic beverages from USL and Pernod.

Hence, DG concluded that OP-1 contravened the provisions of Sections 4(2)(c) read with Section 4(2)(b)(i) of the Act.

Whereas OP-2 and 3’s acts were not found to be contravention of the provisions of the above-stated Sections, as both OP-2 and OP-3 were wholly dependent on OP-1.

OP-2 and OP-3 had no inter-se agreement, whatsoever, with the manufacturers/suppliers of alcoholic beverages and were not getting any direct supplies from them.

Whether there were complaints from retailers and consumers in respect of the non-availability of brands of IMFL?

DG found that OP-2 provided several copies of complaints made by retailers which were forwarded to OP-1, despite which OP-1 continued with arbitrary manner of procurement.

Further, DG noted that OP-1 did not follow the directions of the Additional Excise Commissioner (Licensing) in respect of procurement of alcoholic beverages.

DG’s Conclusion 

DG concluded that non-maintenance of minimum level of different brands at all times and carrying out the procurement of alcoholic beverages in a manner which was arbitrary and one-sided by OP-1 adversely affected competition and OP-1 abused its dominant position in the relevant market, which resulted in denial of market access to the products of USL and Pernod in the State of Uttarakhand.

It was also found that Clauses 7.1, 7.2, 7.3, 14, 4, 1.1, and 2.6 were one-sided, unfair, abusive and anti-competitive in terms of Section 4(2)(a)(i) of the Act.

Analysis, Law and Decision

After the final hearing held on 15-12-2020, Bench analysed the matter.

It was stated that the activities pertaining to procurement and distribution/supply were in the nature of ‘economic and commercial activities for which profit distribution had also been defined under the provisions of the Liquor Wholesale Order itself.

Commission reiterated that

if an entity is engaged in any activity, no matter with or without profit motive, it would be considered an enterprise as it interfaces with the market and hence, with other alternatives for the product or service in question. It is not ‘generation of profits’ rather the defining feature of an entity to be termed as an ‘enterprise’ under the Act is that the entity is engaged in some economic or commercial activity under Section 2(h) for the purposes of Section 4 of the Act.

Commission notes that the precedent is clear and well settled that in case of trade in liquor, the State has following three options:

(a) To completely prohibit the trade in liquor, or

(b) To create a monopoly for itself over manufacture, sale, possession or distribution of alcohol,

or

(c) To allow private individuals to trade in liquor.

Further, it was elaborated that, the grant of license for the trade of liquor is a statutory function, but in the present case, it is the Licensees, even though being wholly-owned Government entities, which are engaged in the economic activity of ‘procurement and distribution/supply of IMFL’ in the State of Uttarakhand.

Hence, it was held that OP-1, 2 and 3 were are ‘enterprises’ within the meaning of Section 2(h) of the Act.

Main Grievance

Unfair procurement of IMFL brands by OPs and the unfair nature of conditions imposed by OP-1 in the agreements it has entered into with IMFL manufacturers.

Commission observed that the competition assessment in respect of an alleged contravention of the provisions of Section 4 of the Act is different in scope and nature from a competition assessment of a proposed combination by way of merger notification under Section 6(2) of the Act.

Commission found that the OPs will remain dominant in any of the plausible relevant markets as each of the OPs had been granted exclusivity in its respective business and area of operation; and no other person could procure, supply or distribute alcoholic beverages in the State of Uttarakhand on account of the restrictions envisaged pursuant to the Liquor Wholesale Order.

Liquor Wholesale Order

 Provisions in the said Order were framed in a manner that entry to any competitor in the relevant market was denied and all the OPs were able to act exclusively and independently in their respective relevant markets during the relevant period.

Whether the dominant position is bestowed upon OP-1 owing to the Excise Policy and the provisions of the Liquor Wholesale Order and subsequently upon OP-2 and OP-3 in their relevant spheres of operation?

 In terms of the Liquor Wholesale Order, during the relevant period, OP-1 was the exclusive procurement agency and OP-2 and OP-2 were sole distributors of IMFL for their respective regions and no alternate access route to the market was available.

Commission expressed that, the provisions of the said order granted powers and discretion to OP-1  to decide the manner of carrying out business operations in the entire State.

OPs enjoyed 100% market share ensuring no competition to the OPs from any other entities. Such exclusion of competition virtually allowed OPs to enjoy monopoly.

Violation of Liquor Wholesale Order and Minimum Stock Requirement

As per the Liquor Wholesale Order, OP-1 was required to maintain minimum stocks of all brands of foreign liquor/beer/wine as fixed by the Additional Excise Commissioner (Licensing).

Commission further observed that it was imperative upon OP- 2 and OP-3 to regularly raise brand-wise indents/requisitions on OP-1 based on the demands of the retailer licensees of their concerned districts, in accordance with the requirements of the said order and no deviation was provided in the said order.

Bench expressed a very significant and crucial point that:

State of Uttarakhand, like other states in the country, has created monopolies by canalising liquor procurement. 

While reaching the conclusion, Commission agreed with the DG that OP-1 did not act in a manner that ensure availability of required brands to retailers and instead did not take concrete steps on the complaints, which also tends to show that OP-1 carried out procurement in a manner which adversely affected competition in the market and discriminated between different manufacturers and suppliers of IMFL.

Commission opined that OP-1 did not place any orders for many brands of Pernod and USL for many months during the 11 months period, that Liquor Wholesale Order was in effect, and the OPs were the only route to access the market for alcohol manufacturers on account of the sole rights of procurement and distribution vested under the Liquor Wholesale Order. Further, this conduct on the part of OP-1, despite existence of retailers’ demand for IMFL, indicates limiting or restricting wholesale procurement and distribution of IMFL in the State of Uttarakhand and denial of market access to producers of certain brands of IMFL in the State of Uttarakhand, in violation of Section 4(1) read with Section 4(2)(b)(i) and Section 4(2)(c) of the Act.

Commission placed reliance on its earlier decision in the matter of Surinder Singh Barmi case wherein it was held that it was immaterial whether the inclusion of clause had any anti-competitive effect, rather the unfairness of the clause needs to be seen which could only be imposed by a dominant entity.

Hence, in the present matter, OP-1 being the dominant entity was in a position to impose one-sided contractual obligations.

Commission directed OP-1 to desist from indulging in such anti-competitive conducts which have been found to be in contravention of the provisions of the Act.

In the present case the anti-competitive conduct on the part of OP-1 had not ceased of its own accord but on account of change in the policy of Government whereby earlier Liquor Wholesale Order ceased to have any effect and OPs were released from performance of the activity of procurement and distribution of liquor.

There was an abject failure in undertaking distribution based on demand, which in fact was the essence of the Liquor Wholesale Order rather than mere fulfilling of MGD obligations as has been countenanced by the said OP.

Hence, a penalty of Rs one crore on OP-1 under Section 27(b) of the Act was imposed. [International Spirits and Wines Association of India (ISWAI) v. Uttarakhand Agricultural Produce Marketing Board, 2021 SCC OnLine CCI 15, decided on 30-03-2021]

Op EdsOP. ED.

When a corporate entity is subject to insolvency proceedings, often as a part of the resolution plan, a competitor seeks to acquire the insolvent entity. This is a typical case witnessing an overlap between insolvency law and competition law, and such acquisitions under the Insolvency and Bankruptcy Code (IBC) are to be reported to the Competition Commission of India[1].

When the IBC first came into being, it provided for the resolution applicant to seek Competition Commission of India (CCI) approval regarding the resolution plan within the prescribed time-limit (which was 270 days); however, it did not mention whether this approval was to be obtained before the approval of the committee of creditors or whether it was to be obtained after their approval or simultaneously. This confusion was alleviated by the Amendment Act of 2018 whereby sub-section (4) was added to Section 31 and its proviso specified that the approval from CCI was to be obtained before seeking the approval of the committee of creditors.

In 2019, the Competition Law Committee suggested in their report that combinations which do not cause any adverse effect on competition may be permitted to obtain “green channel” approval from the CCI; this dispensation also extends to combinations driven by the IBC. The Committee based its report on the fact that there was a very high approval rate of CIRPs that were notified to the CCI.

Green channel approval is based on the concept of “failing firm defence”. It means that the anti-competitive effects of the failing firm (in this case, the insolvent firm) exiting the market are to be evaluated with respect to the anti-competitive effects of the firm being acquired by a competitor. If it is observed that the latter is not more than the former, the acquisition or merger is approved by the competition authorities.

This defence has also got statutory recognition[2], and it essentially consists of a three-stage test[3], viz. firstly, if the firm is about to exit the market due to financial distress, secondly, whether there exists any alternative which is less anti-competitive than the merger or acquisition in question, and thirdly if the firm would be forced to exit the market in absence of this combination.

If the answers to these questions are in the positive, the combination is permitted. The CCI has also recognised the failing firm defence, as was noted when Reliance Industries sought to acquire 37.7% stake in Alok Industries[4]. Keeping these in mind the green channel approval mechanism was proposed by the Competition Law Committee.

Advantages of Green Channel Approval

The Code mandates CIRPs to be completed within 330 days, but it has been observed that the time taken for completion of the process extends this time-limit. Since the time taken for obtaining approval from the CCI adds to the time taken for approval of the resolution plans as a whole, automatic approvals would accelerate the whole process, thereby furthering the very purpose of enactment of the IBC, that is, to provide for resolution of distressed firms in a “time-bound manner[5]”.

Green channeling will do away with the requirements of obtaining prior approval from CCI in case on combinations, and consequently it will reduce the burden of compliances as well on resolution applicants.

It must also be noted that the requirement of obtaining prior approval from CCI may result in multiple applications being filed for the same transaction. This was observed in the Patanjali and Adani Wilmar fiasco where both wanted to acquire Ruchi Soya[6] and when UltraTech and Dalmia Bharat both wanted to acquire Binani Cement[7]. Situations like these lead to unnecessary litigation which may be done away with if green channel approval could be afforded to resolution plans.

Overall, automatic approval of resolution plans will make the whole resolution process simpler, easier and more expedient for all the stakeholders but since the impact of a resolution extends to laws beyond the insolvency regime, the demerits of the proposition should also be taken into consideration.

Disadvantages of Green Channel Approval

If all resolution plans were approved automatically and later it was observed that it had anti-competitive effects, the concerned combination would have to be modified or prohibited, and since it would be modified after the completion of the merger or acquisition as the case may be, the inconvenience caused would be amplified. This is because creditors in a CIRP usually extend additional finances depending on the resolution plan and if such a plan would be prohibited after its completion, the interests of the creditors would be prejudiced. Thus, it is much better that resolution plans go through the scrutiny of the CCI before being approved.

The IBC currently provides for prior approval of resolution plans which involve combinations, thereby encouraging coordination between both the authorities—National Company Law Tribunal and the Competition Commission of India. Green channel approval of resolution plans will discourage resolution applicants from approaching the CCI for approval of their plans or for consultation on whether they may have any anti-competitive effects on the market. This increases the scope of disputes arising later on, as it might have adverse effects on the interests of consumers and businesses (both upstream and downstream).

Conclusion

There are arguments present both in favour of and against the proposition and thus before implementing the recommendations of the Committee, a thorough analysis should be done, keeping in mind the interests of all the stakeholders. If the scales are tilted more towards the implementation of green channel approval, then it may be integrated into the insolvency regime, however it must be noted that the current mechanism of coordination and cooperation between the NCLT and the CCI should be encouraged and sustained nevertheless. A fine balance among interest of diverse stakeholders and an effective implementation are the need of the hour.


Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in. Ishika Chattopadhyay, Student Researcher, Final year student Department of Law, University of Calcutta.

[1] S. 5, Competition Act, 2002.

[2]  S. 20(4)(k) of the Competition Act, 2002.

[3] Guidelines on the Assessment of Horizontal Mergers under the Council Regulation on the Control of Concentrations between Undertakings, (Ch. VIII), Official Journal of the European Union, <https://eurlex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52004XC0205(02)&from=EN#page=10>.

[4] “Complete Alok Industries takeover: SBI to RIL”, 3-1-2020, <https://www.ibcguide.com/complete-alok-industries-takeover-sbi-to-ril/>.

[5] Preamble to the IBC.

[6] “Patanjali moves NCLT Against Ruchi Soya Lenders Approving Adani Wilmar Bid”, The Economic Times, 24-8-2018 <https://cfo.economictimes.indiatimes.com/news/patanjali-moves-nclt-against-ruchi-soya-lenders-approving-adani-wilmar-bid/65532351>.

[7] “Nclat Approves UltraTech’s Revised Bid of Rs 7950 Crore for Binani Cement”, The Economic Times, 15-11-2018, <https://economictimes.indiatimes.com/industry/indl-goods/svs/cement/nclat-holds-ultratechs-bid-for-binani-cement-valid/articleshow/66615756.cms?from=mdr>.

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) dismissed the case of the informant who alleged that Google is abusing its dominant position by integrating Google Meet App into the Gmail App.

Allegations | Abuse of a Dominant Position

In the present matter, information was filed under Section 19(1)(a) of the Competition Act, 2002 by Informant against Google LLC (OP-1) and Google India Digital Services Private Limited (OP-2) alleging contravention of the provisions of Section 4(2)(e) of the Act.

Gmail is an App from Google, where the user gets all their emails, direct messages, etc., and that Gmail enjoys a ‘dominant position’ in the emailing and direct messaging market. Further, it was claimed that ‘Meet’ is a video-conferencing App from Google, where all kinds of virtual conferences and meetings happen.

Informant alleged that Google which is a dominant player has integrated the Meet App into the Gmail App which amounts to abuse of dominant position by Google.

Analysis, Law and Decision

Commission noted that users of Gmail are not forced to necessarily use Google Meet, and there does not appear to be any adverse consequences on the users of Gmail for not using Google Meet, such as withdrawal of Gmail or any of its functionalities or other services that are so far being provided by Google. A Gmail user at his/ her ‘free will’ can use any of the competing VC apps.

Further, it was added to the above observation that anyone with a Google Account could create an online meeting using Google Meet. For creating a Google account, the user need not be a user of Gmail. He/she can use email ID created on any other platform for creating a Google account.

Google Meet is available as an independent app outside the Gmail ecosystem also.

Therefore, users have the choice to use either of the Apps with all their functionalities without necessarily having to use the other. Even though Meet tab has been incorporated in the Gmail app, Gmail does not coerce users to use Meet exclusively as submitted by Google and the consumers are also at freewill to use either Meet or any other VC app for video conferencing.

Hence, no case was made out. [Baglekar Akash Kumar v. Google LLC, 2021 SCC OnLine CCI 2, decided on 29-01-2021]

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The Competition Commission of India (CCI) approves the acquisition of stake by Axis Bank Limited, Axis Capital Limited and Axis Securities Limited in Max Life Insurance Company Limited.

Axis Bank Limited provides services in retail banking, which includes retail lending and retail deposits, wholesale banking, payment solutions, wealth management, forex and remittance products, distribution of mutual fund schemes and distribution of insurance policies.

Axis Capital Limited is engaged in the business of providing focused and customized solutions in the areas of investment banking and institutional equities.

Axis Securities Limited is engaged in the business of broking, distribution of financial products and advisory services.

Max Life Insurance Company Limited is Life Insurance company registered with Insurance Regulatory and Development Authority of India (IRDAI). It is engaged in the business of providing life insurance and annuity products and investment plans in India.

The proposed combination approved by CCI relates to increase of shareholding in Max Life Insurance Company Limited (Target) to approximately 9.9% by Axis Bank Limited and acquisition of 2% and 1% shareholding in the Target by Axis Capital Limited and Axis Securities Limited respectively.

Detailed order of the CCI will follow.


Ministry of Corporate Affairs

[Press Release dt. 21-01-2021]

[Source: PIB]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi, Members expressed that activities under which Delhi Metro Rail Corporation is engaged in are economic activities and are not sovereign functions, therefore OP will be covered within the definition of ‘enterprise’.

Factual Matrix

Instant information was filed by the informant under Section 19(1)(a) of the Competition Act against Delhi Metro Rail Corporation Limited (DMRC) (OP) alleging abuse of dominant position in contravention of Section 4 of the Competition Act.

Informant a sole proprietorship firm was run by the Proprietor. OP had invited bids for licensing of parking rights at Kashmere Gate, Kanhaiya Nagar and Shastri Nagar Metro Stations. After qualifying the technical bid and financial bid for the Contract, a Letter of Acceptance was issued by OP reminding the obligations of the Informant as per the terms of the Contract.

Allegation

It was alleged that illegal parking agents who operated nearby parking area with the help of corrupt officials of New Delhi Municipal Council (NDMC) and local Kashmere Gate Police Station, SHO were causing problems by way of complaints, threats and actions restricting the usage of 3183.47 square metres of proposed parking area of OP, by the informant.

Adding to the above allegations, it has also been stated that NDMC has been causing problems by imposing garbage fine on the Informant whereas it is workers of Municipal Corporation of Delhi who intensely dump the garbage near the unfenced parking area of the Informant and the garbage spreads due to various reasons.

OP also violated the basic conditions of the Contract by imposing a locking period clause so that the informant cannot find a way out of the Contract and suffer huge losses.

OP’s acts caused grave mental, physical and monetary harassment to the Informant which are likely cause pressure-related diseases leading up to death/suicide.

Analysis and Decision

Firstly, the Commission examined as to whether OP falls within the purview of the Act for the purposes of Section 4 i.e. Whether OP is an ‘enterprise’ within the meaning of Section 2(h) of the Competition Act?

Bench noted that from the information available in the public domain OP has been providing Mass Rapid Transport System (MRTS) in the National Capital Region (NCR) and is engaged in the development, maintenance and management of modern metro system for mass urban transportation.

Activities as stated above in which the OP is engaged will come under the ambit of economic activities and are not sovereign functions, therefore, OP is covered within the definition of ‘enterprise’ in terms of Section 2(h) of the Act.

Further, the Commission delineated the relevant market and the same to be taken as ‘Delhi’. Hence the relevant market defined by the Commission in the instant case was ‘procurement of services for provision of parking lot management in Delhi’.

Whether OP was a dominant procurer of parking lot management services in the aforesaid relevant market data of parking lots?

To answer the above question, data with regard to the owned but outsourced for management to third parties by Delhi Municipal Corporations (North, South, East), New Delhi Municipal Council and Delhi Cantonment Board was compiled and compared with OP.

Commission opined that OP didn’t have the ability to operate independently in the said relevant market. OP was not found to be the dominant procurer of parking lot management services in Delhi or even North Delhi area where the three stations operated by OP were located.

In light of the above analysis, Commission found no case of contravention of provisions of Section 4 of the Competition Act against the OP. [Dhiraj Gupta v. DMRC, 2020 SCC OnLine CCI 48, decided on 26-08-2020]

Case BriefsSupreme Court

Supreme Court: In a plea seeking inquiry into the alleged anti-competitive practices of Ola and Uber of entering into price-fixing agreement, the 3-judge bench of RF Nariman*, KM Joseph, Krishna Murari, JJ has refused to interfere with the concurrent finding of CCI and NCLAT that Ola and Uber do not facilitate cartelization or anti-competitive practices between drivers, who are independent individuals, who act independently of each other, so as to attract the application of section 3 of the Competition Act, 2002.

Why was an inquiry sought?

An informant sought that the Competition Commission of India initiate an inquiry, under section 26(2) of the Competition Act, 2002, into the alleged anti-competitive conduct of ANI Technologies Pvt. Ltd. [Ola], and Uber India Systems Pvt. Ltd., Uber B.V. and Uber Technologies Inc. [Uber], alleging that they entered into price-fixing agreements in contravention of section 3(1) read with section 3(3)(a) of the Act, and engaged in resale price maintenance in contravention of section 3(1) 1 read with section 3(4)(e) of the Act. According to the Informant, Uber and Ola provide radio taxi services and essentially operate as platforms through mobile applications which allow riders and drivers, that is, two sides of the platform, to interact. Due to algorithmic pricing, neither are riders able to negotiate fares with individual drivers for rides that are booked through the apps, nor are the drivers able to offer any discounts. Thus, the pricing algorithm takes away the freedom of riders and drivers to choose the best price on the basis of competition, as both have to accept the price set by the pricing algorithm.

Further, despite the fact that the drivers are independent entities who are not employees or agents of Ola or Uber, the driver is bound to accept the trip fare reflected in the app at the end of the trip, without having any discretion insofar as the same is concerned. The drivers receive their share of the fare only after the deduction of a commission by Ola and Uber for the services offered to the rider.

What did the counsels say?

Senior Advocate Abhishek Manu Singhvi, appearing on behalf of Uber, walked the Court through the concurrent findings of fact of the CCI and the NCLAT and said that every driver of a taxi cab, who uses the Ola or Uber app, can have several such apps including both Ola, Uber and the apps of some of their competitors, and can take private rides de hors these apps as well.

Advocate Rajshekhar Rao, appearing for Ola, agreed with Dr. Singhvi’s submissions on merit but questioned the locus standi of the informant, an “independent practitioner of law”. He, thus, prayed before the Supreme Court that “in such cases heavy costs should be imposed to deter such persons from approaching the CCI with frivolous and/or mala fide information, filed at the behest of competitors.”

Additional Solicitor General Balbir Singh, appearing on behalf of the CCI, however, stated that though he would support the CCI’s Order closing the case, he would also support the right of the Appellant to approach the CCI with information.

What did the Supreme Court say?

Informant’s locus standi

A reading of the provisions of Competition Act, 2002 and the Competition Commission of India (General) Regulations, 2009 shows that “any person” may provide information to the CCI, which may then act upon it in accordance with the provisions of the Act. The definition of “person” in section 2(l) of the Act is an inclusive one and is extremely wide, including individuals of all kinds and every artificial juridical person.

Section 19(1) of the Act originally provided for the “receipt of a complaint” from any person, consumer or their association, or trade association. This expression was then substituted with the expression “receipt of any information in such manner and” by the 2007 Amendment. This substitution is not without significance.

A complaint could be filed only from a person who was aggrieved by a particular action, information may be received from any person, obviously whether such person is or is not personally affected. This is for the reason that the proceedings under the Act are proceedings in rem which affect the public interest. That the CCI may inquire into any alleged contravention of the provisions of the Act on its own motion, is also laid down in section 19(1) of the Act.

“Even while exercising suo motu powers, the CCI may receive information from any person and not merely from a person who is aggrieved by the conduct that is alleged to have occurred. This also follows from a reading of section 35 of the Act, in which the earlier expression “complainant or defendant” has been substituted by the expression, “person or an enterprise,” setting out that the informant may appear either in person, or through one or more agents, before the CCI to present the information that he has gathered.”

However, Section 45 of the Act is a deterrent against persons who provide information to the CCI, mala fide or recklessly, inasmuch as false statements and omissions of material facts are punishable with a penalty which may extend to the hefty amount of rupees one crore, with the CCI being empowered to pass other such orders as it deems fit.

“This, and the judicious use of heavy costs being imposed when the information supplied is either frivolous or mala fide, can keep in check what is described as the growing tendency of persons being “set up” by rivals in the trade.”

The 2009 Regulations also do not require the informant to state how he is personally aggrieved by the contravention of the Act, but only requires a statement of facts and details of the alleged contravention to be set out in the information filed. Also, regulation 25 shows that public interest must be foremost in the consideration of the CCI when an application is made to it in writing that a person or enterprise has substantial interest in the outcome of the proceedings, and such person may therefore be allowed to take part in the proceedings. Further,

“CCI must maintain confidentiality of the identity of an informant on a request made to it in writing, so that such informant be free from harassment by persons involved in contravening the Act.”

“Person aggrieved”

Since the CCI and the NCLAT deal with practices which have an adverse effect on competition in derogation of the interest of consumers, the Act vests powers in the CCI and enables it to act in rem, in public interest. Hence, a “person aggrieved” must, in the context of the Act, be understood widely and not be constructed narrowly.

Further, it is not without significance that the expressions used in sections 53B and 53T of the Act are “any person”, thereby signifying that all persons who bring to the CCI information of practices that are contrary to the provisions of the Act, could be said to be aggrieved by an adverse order of the CCI in case it refuses to act upon the information supplied. By way of contrast, section 53N(3) speaks of making payment to an applicant as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II of the Act, having been committed by an enterprise. By this sub-section, clearly, therefore, “any person” who makes an application for compensation, under sub-section (1) of section 53N of the Act, would refer only to persons who have suffered loss or damage, thereby, qualifying the expression “any person” as being a person who has suffered loss or damage.

It was, hence, noticed,

“when the CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching the CCI and the appellate authority, i.e., the NCLAT, must be kept wide open in public interest, so as to subserve the high public purpose of the Act.”

[Samir Agrawal v. Competition Commission on India, 2020 SCC OnLine SC 1024, decided on 15.12.2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members), prima facie opined that alleged conduct on the part of Google merit detailed investigation.

Present information was filed under Section 19(1)(a) of the Competition Act, 2002 by the XYZ — Informant against Alphabet Inc. — OP 1, Google LLC — OP 2, Google Ireland Limited — OP 4 and Google India Digital Services Private Limited — OP 5 alleged contravention of provisions of Section 4 of the Competition Act, 2002. OPs collectively referred to as ‘Google/Opposite Parties’.

Factual Matrix

Informant averred that other than Android and Google Search, Google’s core products include a web browser and online video streaming service as web-based e-mail service, an online mapping, navigation and geolocation service, an app store, etc. The said services are part of Google Mobile Services i.e. the bundle of Google apps and services that Google licenses to smartphone manufacturers/Original Equipment Manufacturers.

Re-branding of ‘Tez in India’ to ‘Google Pay’

In addition to the core products of Google, Google launched a Unified Payment Interface (UPI) based payment app called Tez in India, which was rebranded as Google Pay. With UPI, everyone with a bank account in India can create a Virtual Payment Address and start transacting using a mobile phone.

OP-1 is to be the holding company of OP-2.

Allegations | Google Pay being favoured over the Android Operating System 

Informant alleged that Google, through its control over the Play Store and Android Operating System (OS) is favouring Google Pay over other competing apps, to the disadvantage of both i.e. apps facilitating payment through UPI, as well as users.

Informant has alleged that Google, through its control over the Play Store and Android Operating System (OS), is favouring Google Pay over other competing apps, to the disadvantage of both i.e. apps facilitating payment through UPI, as well as users.

As per the Informant, the above amounts to an abuse of its dominant position by Google in violation of various provisions of Section 4 of the Act.

Analysis

Opposite Parties requested the Commission to dismiss the Informant’s confidentiality claims including on his identity. It has been stated that Google’s ability to sufficiently defend its position will be compromised if it cannot have access to the background context and other facts relevant to the present issues, including whether or not the Informant has sufficient standing.

Commission noted that allegations of the Informant are primarily two-fold i.e. :

(a) mandatory use of Google Play’s payment system for purchasing the apps & In-App Purchases in the Play Store

(b) excluding other mobile wallets/UPI apps as one of the effective payment options in the Google Play’s payment system.

In relation to mandatory use of Play’s payment system for paid apps & in-app purchases, the Commission is of prima facie view that mandatory use of application store’s payment system for paid apps & in-app purchases restricts the choice available to the app developers to select a payment processing system of their choice especially considering when Google charges a commission of 30% (15% in certain cases) for all app purchases and IAPs.

The resultant market power being enjoyed by Google due to its grip over the Android ecosystem apparently resulted in ‘allegedly’ high commission fee of 30%.

As per the Informant, other payment processing solutions charge a significantly lower fee for processing payments.

While stating that the ‘allegedly’ high fee would increase the cost of Google’s competitors and might affect their competitiveness, Commission opined that it is of prima facie view that imposition of such condition is unfair in terms of Section 4(2)(a) of the Act. Hence various pleas of Google like offering a secured system, the necessity of Play’s billing system etc., can be appropriately examined during the investigation.

Commission also noted that the mandatory use of application store’s payment system for paid apps & in-app purchases along with the associated issue of alleged ‘high’ service fee/commission has been a matter of concern in other parts of the world as well.

Adding to the above, bench stated that the conduct of Google amounts to imposition of unfair and discriminatory condition, denial of market access for competing apps of Google Pay and leveraging on the part of Google, in terms of different provisions of Section 4(2) of the Act.

Pre-installation and prominence of Google Pay on Android Smartphones

Pre-installation of GPay may create a sense of exclusivity and default as users may not opt for downloading competing apps.

It appears that Google already has a significant market presence in UPI based digital payment applications market and it may affect the evolving and transitory market in its favour. In such a stage of evolution, Google using its market position in applications relating to licensable mobile OS, search engine, app store, browser, etc. to enter into contractual arrangements with OEMs for pre-installation of GPay, may disturb the level playing field.

in view of the state, Commission agreed with the Informant and prima facie opined that alleged conduct on the part of Google merit detailed investigation.

Search manipulation and Bias by Google in favour of Google Pay

Informant contended that Google rigged its featured app lists in favour of Google Pay.

Informant alleged that the prominent placement of Google Pay amounts to a violation of Section 4 of the Act as it results in:

(i) imposition of an unfair condition on users and the broader payments ecosystem including other apps facilitating payments through UPI;

(ii) imposition of a discriminatory condition on mobile wallets and other apps facilitating payment through UPI;

(iii) limitation of technical and scientific development;

(iv) denial of market access; and

(v) leveraging.

Commission further opined that manipulation of features on/by the dominant platform, along with other self-preferencing means, may work as a potent instrument to divert traffic to its newly launched app and thus interfering with the process of ‘competition on the merits’. 

Having considered the allegations holistically, the Commission noted that except the bald assertions made by the Informant, nothing on record is there to evidence such manipulation as alleged by the Informant hence Commission opined that no investigation could be ordered on the basis of assertions made by the informant which are neither corroborated or otherwise substantiated.

The mere allegations in the form of screenshots which are not supported/corroborated by any other material, cannot be the basis for launching an anti-trust inquiry.

Decision

In view of the above, the Commission held that a detailed investigation is warranted as OPs have contravened various provisions of Section 4  of the Competition Act, 2002.

Commission directed the Director-General to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act.

Hence, a case is made out against Google for directing an investigation by the DG. [XYZ v. Alphabet Inc., 2020 SCC OnLine CCI 41, decided on 09-11-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) while addressing the complaint in regard to unfair business by WhatsApp, dismissed the same on finding no competition concern.

Informant has filed the present information under Section 19(1)(a) of the Competition Act, against Whatsapp and Facebook alleging a contravention of provisions of Sections 4 of the Act and both Facebook and Whatsapp are collectively known as “OPs”.

Users of WhatsApp automatically get the payment app owned by WhatsApp i.e. ‘WhatsApp Pay’ installed on their smartphones. This, as per the Informant leads to the contravention of Section 4(2)(a)(i) of the Act as automatic installation of WhatsApp Pay on existing WhatsApp Messenger user’s device amounts to the imposition of an unfair condition on the users/consumers.

COERCION

A user who does not wish to install the Payments App but only the Messenger App does not have the option to do so.

Contravention: Section 4(2)(e)

Automatic installation also amounts to a contravention of Section 4(2)(e) of the Act as the dominance of WhatsApp in the Internet-based instant messaging App market favours and protects it in the UPI enabled Digital Payments Applications Market.

Informant further alleges that the acquisition of WhatsApp, Instagram and Oculus by Facebook causes an adverse effect on the competition as these companies to have huge data sets of users that they can use for their commercial advantage.

Decision and Analysis

Coram observes that the preamble to the Act unequivocally voices the ethos with which the Act was enacted, keeping in view the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.

The mere fact that a case has been filed by an aggrieved party under the Competition Act, does not take away its character of being a case in rem involving a larger question of fair and competitive markets.

Further, it was observed that the Informant need to necessarily be an aggrieved party to file a case before the Commission.

Forum Shopping

Informant has indulged in forum shopping being closely associated with a petitioner who has approached the Supreme Court against WhatsApp and Facebook and this apparent non-disclosure reveals the mala fide intent and unclean hands with which the Informant has approached the Commission.

The Commission observes that WhatsApp and Facebook are third-party apps broadly providing internet-based consumer communications services. Consumer communications services can be sub-segmented based on different parameters.

Commission agrees with the Informant that the second relevant market for assessing the allegations of the Informant would be ‘market for UPI enabled Digital Payments Apps in India’.

At the outset, the Commission observes that Facebook and WhatsApp are group entities and though they may operate in separate relevant markets, their strengths can be attributed to each-others’ positioning in the respective markets in which they operate.

Commission added that in the absence of concrete data/information available in the Indian context other than the subjective information on the popularity of WhatsApp, the Commission is of the view that these trends and results can be used as a proxy, the said trends point towards Whatsapp’s dominance.

Barriers to Entry

The barriers to entry, may arise indirectly as a result of the networks effects enjoyed by the dominant player in the market, i.e. WhatsApp, in the present case. Since network effects lead to increased switching costs, new players may be disincentivized from entering the market.

Hence, Commission prima facie finds WhatsApp to be dominant in the first relevant market — market for OTT messaging apps through smartphones in India.

As regards Section 4(2)(a)(i), the Commission does not find much merit in the allegation of the Informant as mere existence of an App on the smartphone does not necessarily convert into transaction/usage.

Incorporating the payment option in the messaging app does not seem to influence a consumer’s choice when it comes to exercising their preference in terms of app usage, particularly since there seems to be a strong likelihood of a status quo bias operating in favour of the incumbents, at present.

With regard to the allegation under Section 4(2)(d) of the Act, the Commission observes that though the Informant has used the word ‘bundling’, the nature of such allegation is more akin to ‘tying’ as understood in the antitrust context generally.

While ‘tying’ refers to a practice whereby the seller of a product or service requires the buyers to also purchase another separate product or service, which essentially is the allegation of the Informant.

Installation of the WhatsApp messenger does not appear to explicitly mandate/coerce the user to use WhatsApp Pay exclusively or to influence the consumer choice implicitly in any other manner, at present.

UPI Market

UPI market is quite established with renowned players competing vigorously. Given the fact that WhatsApp ecosystem does not involve paid services as such for normal users, it seems unlikely that the consumer traffic will be diverted by WhatsApp using its strength in the messenger market. 

Facebook and WhatsApp undeniably deal with customer sensitive data which is amenable to misuse and may raise potential antitrust concerns among other data protection issues.

In the present case, the Informant has only alleged that WhatsApp/Facebook have access to data which they are using for doing targeted advertising, hence there is no concrete allegation.

Informant has also claimed that WhatsApp is in serious non-compliance with critical and mandatory procedural norms.

In view of the above allegation, Commission, do not seem to raise any competition concern and as such may not need any further scrutiny by it.

Therefore, based on the aforesaid analysis, Commission does not find alleged contravention of the provisions of Section 4 of the Act against WhatsApp or Facebook being made out. [Harshita Chawla v. WhatsApp,  2020 SCC OnLine CCI 32, decided on 18-08-2020]

Cyril Amarchand MangaldasExperts Corner

On 20-5-2020, in a significant competition law-related development, a Single Judge Bench of the High Court of Delhi (Delhi HC) passed a judgment[1] dismissing a petition filed by Monsanto[2] against the Competition Commission of India’s (CCI) investigation order. In the present matter, Monsanto approached the Delhi HC challenging the jurisdiction of CCI to investigate their licensing policies under Section 4 of the Competition Act, 2002 (Competition Act). It was argued that the issues arising out of their licensing arrangements should be subjected to the Controller of Patents (Controller) under the Patents Act, 1970 (Patents Act), and CCI does not have jurisdiction in this regard. However, the Delhi HC rejected the objections of the petitioners and upheld the jurisdiction of CCI to probe into such abusive conduct, despite the presence of a specific statutory regulator.

The judgment highlights certain overlapping and controversial issues between the Competition Act and the Patents Act, which have now been harmoniously settled by the Delhi HC. While dealing with the objections of the petitioners, the Delhi HC also clarified certain observations made by the Supreme Court of India (Supreme Court) in CCI v. Bharti Airtel Ltd.[3] (Bharti Airtel judgment.) In doing so, it particularly emphasised that the Bharti Airtel judgment is not an authority for extending the proposition that whenever there is a statutory regulator, the complaint must be first brought before the regulator and examination of a complaint by CCI is contingent upon the findings of such regulator.

Brief Facts

The genesis of the dispute is an information filed by certain cotton seed manufacturing companies[4] before CCI. Monsanto was the first company to develop and commercialise Bt cotton technology and registered its second generation of Bt cotton technology under the Patents Act. Monsanto had licensed this technology to its Indian joint venture company — MMBL, which sub-licensed it to various seed manufacturers in India (including the informants) on payment of certain non-refundable and a recurring royalty/fees (trait fee).

The informants inter alia alleged that MMLB and certain Monsanto group companies charged unreasonably high trait fee, imposed unfair terms and conditions through sub-licensing agreements, engaged in refusal to deal, etc., which resulted in denial of market access for the informants. CCI prima facie found merit in the informants’ allegations and accordingly passed an order under Section 26(1) of the Competition Act, thereby directing an investigation into the matter. Consequently,  Monsanto approached the Delhi HC challenging CCIs investigation order.

Key Issues for Determination

The Delhi HC delineated the following issues for consideration: (i) whether there was any irreconcilable conflict between the Competition Act and the Patents Act, and whether both the enactments could be construed harmoniously; (ii) whether Section 3(5) of the Competition Act excludes the applicability of the Competition Act in respect of any agreement, which relates to restraining infringement of any patent rights; and (iii) whether Bharti Airtel judgment[5] confers primacy to statutory regulators over CCI.

Irreconcilable Conflict between the Competition Act and the Patents Act

The Delhi HC relied on the Telefonaktiebolaget L.M. Ericsson v. CCI[6] (Telefonaktiebolaget L.M. Ericsson judgment) and the relevant provisions of both the enactments to observe that there was no irreconcilable conflict between the Competition Act and the Patents Act.

It was noted that the provisions of the Competition Act (i.e. Sections 62, 21 and 21-A) clearly indicate that the intention of the Central Legislature was not to repeal any other statute by enacting the Competition Act, rather it was to ensure that the provisions of the Competition Act are implemented in addition to the provisions of other statutes. Further, the remedies available under the Patents Act and the Competition Act are materially different from each other. It was also observed that in certain cases, it may be open for a prospective licensee to approach the Controller for grant of a compulsory licence, however, the same would not be inconsistent with CCI passing an appropriate order under Section 27 of the Competition Act.

Accordingly, it was held that the jurisdiction of CCI to entertain complaints regarding abuse of patent rights could not be excluded.

Whether Section 3(5) of the Competition Act is a Blanket Exemption

With respect to the allegation reimposition of unreasonable conditions on the informants (through sub-licensing agreements), the petitioners contended that they were well within their rights to impose such conditions by virtue of Section 3(5)(i) of the Competition Act.

Section 3(5)(i) of the Competition Act provides that Section 3 (which deals with anti-competitive agreements) would not restrict the rights of any person to restraint any infringement of, or to impose reasonable conditions, as necessary for protecting any of his rights which have been or may be conferred upon him under, inter alia, the Patents Act.

The petitioners submitted that Section 3(5)(i) of the Competition Act has two limbs. The first, which provides a blanket exclusion in respect of rights to restraint infringement of intellectual property rights (IPR); and the second, which relates to imposition of reasonable conditions, that may be necessary for protecting the IPR. It was emphasised that the term “reasonable” under Section 3(5)(i) is a qualifier only for conditions relating to patent protection and not patent infringement. Accordingly, the petitioners submitted that CCI lacks jurisdiction to examine the alleged anti-competitive clauses of the sub-licensing agreement, as these were designed to restrain the cotton seed manufacturers (including the informants) from infringing their patents [re] Bt cotton technology.

The Delhi HC found the petitioners’ contentions bereft of any merit. It observed that while a patent holder is well within its rights to enter into an agreement restraining infringement of its patent rights, however, these rights are not unqualified. The words “or to impose reasonable conditions” under Section 3(5)(i) are placed between two commas and thus, must be interpreted as being placed in parenthesis that explains and qualifies the safe harbor of Section 3(5) of the Competition Act. The exclusionary provision to restrain infringement cannot be read to mean a right to include unreasonable conditions that far exceed those that are necessary, for the aforesaid purpose.

Therefore, the question whether an agreement is limited to restraining infringement of patents (and includes reasonable conditions), is required to be determined by CCI. Section 3(5) of the Competition Act does not mean that a patentee would be free to include onerous conditions under the guise of protecting its rights.

Whether Bharti Airtel Judgment Confers Primacy to Sectoral Regulators over CCI

Lastly, relying on the Bharti Airtel judgment[7], the petitioners contended that since issues in the present matter relate to patents, it would be essential for the specialised regulator in this case, the Controller to first determine whether the agreements (sub-licences) entered into by MMBL are an abuse of its rights under the Patents Act before CCI could investigate it.

In this regard, the Delhi HC clarified that the position taken by the Supreme Court in Bharti Airtel judgment[8], in favour of Telecom Regulatory Authority of India (TRAI), would not be applicable in the present case for the following reasons:

First, the Bharti Airtel judgment[9] did not confer primacy to sectoral regulators over matters that fell within the expertise and domain of CCI. Unlike the present matter, where the complaint filed before CCI pertains to anti-competitive conduct by the petitioners, the dispute in Bharti Airtel (which was sought to be placed before CCI) related to non-provision of points of interconnections (PoI) i.e. a technical telecom issue. The PoI issue clearly required a technical evaluation and therefore, the examination by CCI was deferred till the technical aspects (basis which the complaints were filed before CCI) were determined by TRAI.

Second, the Bharti Airtel judgment[10] pertained to the role and functions of TRAI which is materially different from that of the Controller. The TRAIs scope of regulation is pervasive in nature as it is entrusted with the formation and implementation of regulations. Therefore, the issue of non-provision of PoIs fell squarely within the scope of TRAIs regulatory powers. On the contrary, a Controller does not regulate the exercise of patent rights in such a pervasive manner. The principal function of the Controller is to examine the application of grant of patents and whether an applicant is entitled to such grant of patent rights. Although, the Controller also exercises other powers and performs other functions (including issuance of compulsory licences), the nature of role performed by the Controller cannot be equated to that of TRAI.

Therefore, the Delhi HC held that CCI has jurisdiction to investigate the abusive conduct of Monsanto.

Key Takeaways

Given the conundrum around the applicability of Bharti Airtel judgment[11] (as discussed above), the Delhi HC provided the much-needed clarity in relation to the jurisdiction of CCI in cases involving statutory regulators. The judgment reaffirms that CCI is entrusted with the function to deal with anti-competitive conduct (as set out under the Competition Act) and to that extent, CCI can assume jurisdiction even in matters involving a specialised statutory body. This observation of the Delhi HC will go a long way in restricting the abuse of legal process, where the parties attempt to escape CCIs investigation by raising frivolous jurisdictional issues.

In this judgment, the Delhi HC has taken the opportunity to re-emphasise that there is no irreconcilable repugnancy between the Patents Act and the Competition Act. Interestingly, it also construed Section 3(5) of the Competition Act in true spirit by clarifying that Section 3(5) of the Competition Act is not a blanket restriction, and therefore unreasonable conditions could not be imposed by an IPR holder under the garb of protecting its rights.

While the Delhi HC has established a progressive precedent through this judgment, it will be interesting to see how it plays out for 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.  Ruchi Verma, Associate, can be contacted at ruchi.verma@cyrilshroff.com and Nandini Pahari, Associate with the Competition Law Practice at Cyril Amarchand Mangaldas.

[1] Monsanto Holdings (P) Ltd. v. CCI, 2020 SCC OnLine Del 598.

[2] Monsanto Holdings Pvt. Ltd. (MHPL), Monsanto Company, and Mahyco Monsanto Biotech (India) Ltd. (MMBL); collectively referred to as “Monsanto”.

[3] (2019) 2 SCC 521.

[4] Nuziveedu Seeds Ltd. (NSL), Prabhat Agri Biotech Ltd. (PABL), Pravardhan Seeds Private Ltd. (PSPL) (collectively referred to as the “informants”).

[5] (2019) 2 SCC 521.

[6] 2016 SCC OnLine Del 1951.

[7] Supra (Note-5).

[8] Supra (Note-5).

[9] Supra (Note-5).

[10] Supra (Note-5).

[11] Supra (Note-5).

Business NewsNews

CCI approves acquisition of 9.99% stake in Jio Platforms by Facebooks’ subsidiary Jaadhu Holdings LLC

The Competition Commission of India (CCI) approves acquisition of 9.99% stake in Jio Platforms by Jaadhu Holdings LLC. The proposed combination envisages acquisition of approximately 9.99% stake in Jio Platforms Limited (Jio Platforms)by Jaadhu Holdings LLC (Jaadhu).

Jaadhu is an indirect wholly owned subsidiary of Facebook. Jaadhu is a newly incorporated company formed in March 2020 under the laws of the State of Delaware, United States. Facebook is a publicly traded company listed on NASDAQ, with headquarters in California, United States of America. Facebook was founded in 2004. Its mission is to give people the power to build community and bring the world closer together. The Facebook group offers various products and services that help people connect to their friends and family, find communities, and grow businesses.

Jio Platforms is a company organised and existing under the laws of the Republic of India, and a subsidiary of RIL. Jio Platforms owns (directly or indirectly) and operates digital applications and holds controlling investments in certain technology related entities. Jio Platforms also holds 100% of the issued and outstanding share capital of Reliance Jio Infocomm Limited (RJIL). RJIL is a public limited company incorporated in India, and is a licensed telecommunications operator, providing telecommunications services to users across the country.


Ministry of Corporate Affairs

Press Release dt. 25-06-2020

Business LawOp EdsOP. ED.

Facebook is investing $5.7 billion or INR 43,574 crore to get close to 10% equity in Jio Platforms Limited.  In its press release[1], the social media giant expressed its intention to connect Jio’s e-commerce platform, JioMart, to small businesses and shops via “the power of WhatsApp” in order to make online shopping a seamless mobile experience. The Jio-Facebook deal announced last week promises to push India’s digital transformation to new heights. However, out of a number of regulatory approvals, Competition Commission of India’s (CCI) approval is the most crucial one. To consummate a deal that crosses the thresholds mentioned under Section 5 of the Competition Act, 2002, CCI’s approval is mandatory. Section 6 sub-section (2) read with Regulation 5 of the Combination Regulations[2] evidences a suspensory regime i.e. the approval must be obtained prior to closing of the deal in the country.

 The deal, as ambitious as it sounds, can run into anti-trust issues. Firstly, the multi-billion-dollar investment into Jio will have to be notified to and approved by India’s competition regulator. For that to happen, CCI will have to take a forward-looking approach and check that the proposed combination does not have potential to cause appreciable adverse effect on the competition in the market. To safeguard the investment from the protectionist approaches of Indian regulators is a crucial factor in consummating the deal and, subsequently, carrying it forward smoothly. Despite the criticism to protectionist regulatory regime, CCI tends to adopt a liberal approach[3]. In the approved RIL-Brookfield tower infrastructure deal, the two were found to be vertical participants and CCI went ahead to analyse if there were any vertical overlap. With RIL’s acquisition of stake in Saudi AramCo at hold, it needs to be more careful with the investment and regulatory concerns with the activities of its digital arm, Jio.

 The strategic investment for acquiring the minority stake is not simply a passive investment. The filing of notice as per Regulation 4 of the Combination Regulations in itself is indicative of the fact that the transaction is not in the ordinary course of business and is backed with an intent of strategic investment to bring in change in control. Thus, the responsibility of CCI is to peruse not only the potential adverse effects on competition but also the potential concerns it may give rise to. It would be interesting to see whether the acquisition of minority stake in India’s leading telecom arm would grant any control to Facebook. Let us look at the possible anti-trust issues that the deal poses:

Dominance: Boon or a bane?

Both Jio and Facebook seem to be dominant players in their respective markets. The  Telecom Regulatory Authority of India’s data points to the fact that Jio has the highest market share in terms of user base and revenue sharing in the telecom market as it holds 32% share in the 1.15-billion-user Indian mobile services market, taking its total user base to 369.93 million, surpassing its competitors Bharti Airtel and Vodafone-Idea. It must also be noted that, unlike others, all Jio connections are 4G based, thus, having a strong base of smartphone users.

Now, Facebook primarily operates via three platforms: facebook.com, Instagram and WhatsApp. All of them seem to be dominant players in the market they operate in. We are only concerned with WhatsApp. Its relevant market seems to be smartphone-based social media messaging platform. WhatsApp has more than 400 million[4] confirmed users in India, while around 600 million[5] people have access to internet[6] in the country. Other competitors to WhatsApp in India are hike, WeChat, Telegram, which only have a fraction of the users as WhatsApp.

Jio plans to revolutionise JioMart by combining it with WhatsApp to integrate small and medium scale ‘kirana’ businesses to cater to the demand. This would firstly strengthen the position of mom-pop shops in the local market by sewing them into the digital framework and secondly would attempt to penetrate into another market by using the dominance of WhatsApp.

More so, WhatsApp could possibly allow JioMart to operate on its messaging platform. If done so, and in the manner that WhatsApp comes with pre-embedded JioMart platform, it could lead to abuse of dominance under Section 4(2)(d) as installing WhatsApp would be the main contract and pre-embedded JioMart would be the unconnected supplementary obligation. This would also mean that the users would not be allowed to embed any other e-commerce portal on WhatsApp messenger, which would again seem to be causing disruption in the competition in the market and unfair to consumers as it would leave no choice to them but accept the imposed deal.

Another advantage post the deal would be of control over consumer data. As of now, RIL Chief has said that there is no agreement for transferring of consumer data between the parties; however, this does not erode the possibility of entering into such agreements in the near future. While control over data has been used by Competition Regulators in examining the e-commerce and digital platforms’ anti-competitive conduct (viz. Amazon-Flipkart case[7], Sonam Sharma v. Apple Inc. USA[8]), this factor in the present case must be dealt with utmost seriousness and conviction to ensure survival of healthy competition in the e-commerce market, especially at a time when Facebook has been imposed with $5 billion fine over data privacy violation[9].

Appreciable Adverse Effect on Competition: Is it too soon?

Where the strategic investment is with the intent to enter into a different segment using the control in respective markets to enter into an entirely different product market, the parameters to check the potential adverse effect on the competition must be comprehensive. In re, Google LLC[10], CCI observed that there is a need to not only delineate primary relevant market but also associated markets to relevant markets that have been affected by the conduct of the parties involved. Section 20 sub-section (4) lists the factors that CCI must consider to conclude if there is any appreciable adverse effect on the competition because of the proposed combination.

The essence of this checklist is to look for horizontal or vertical overlap in the activities post acquisition. While there seems to be no horizontal overlap, there definitely could be a case of vertical integration. Jio provides internet to smartphone, smartphones use internet to operate WhatsApp and now WhatsApp would integrate JioMart. It is not only vertical integration but use of dominant position in one market to enter into a new market, and thus would be likely to effect adversely the natural competition in the ‘phygital’ commerce market (as has been recently termed).

The analysis must be based not only on the market share of the deal participants both pre and post-acquisition but must also mindfully address the data sharing aspect of the deal, considering these data mammoths’ conduct in the recent past. The US Court imposing record $5 billion fine on Facebook for privacy violations is in itself a warning for the Indian regulators to intervene in this far reaching deal especially, to protect the Indian start-up movement that is also an important wing of the Digital India flight. The deal no doubt has potential of creating business and commercial barriers for local tech start-ups. The primary purpose of the merger control regime is to foresee adverse effects and to live up to this objective, CCI must take cognizance of the interrelatedness of this deal.

One can at the same not ignore the importance of balance between the commercial interest and the consumer welfare interests. Though the weighing scale can never be equal for both, what is important for CCI as a regulator of omnipotent economic concerns is that it shouldn’t step on the commercial prospects deal participants like such to ensure distributive justice.

The deal will undoubtedly push the CCI’s merger control jurisprudence into a comprehensive one and shall be significant in laying down a vigilant yet compendious framework for future deals. While we are still speculating about the nature of the deal, JioMart has started testing WhatsApp for grocery orders in pursuance of the proposed deal. “The customer initiates the interaction on WhatsApp, checks out the grocery order on JioMart webpage, gets connected with a retail store on WhatsApp and then customer picks up the order from Kirana and pays in cash,” said the news report[11].


*Prateek and Samanvi are pursuing Master of Laws (LL.M.) in Corporate and Commercial Law from Nalsar University of Law, Hyderabad

[1] Press release by Facebook (21.02.2020), https://about.fb.com/news/2020/04/facebook-invests-in-jio/

[2] Competition Commission of India (Procedure in regard to the transactions of business relating to combinations) Regulations, 2011 

[3] CCI has cleared over 600 combinations, and has not blocked even a single one. Only eight were subject to detailed Phase II enquiry, India: Merger Control (4th Edn.), AZB Partners, https://www.azbpartners.com/bank/india-merger-control-4th-edition/,

[4] Manish Singh, WhatsApp reaches 400 million users in India, Tech Crunch, (26.07.2020), https://techcrunch.com/2019/07/26/whatsapp-india-users-400-million/

[5] Sanika Diwanji, Number of internet users in India from 2015 to 2018 with a forecast until 2023, Statista, (31.03.2020), https://www.statista.com/statistics/255146/number-of-internet-users-in-india/

[6] PTI, Internet users in India to reach 627 million in 2019, Economic Times, (06.03.2019)

[7] Delhi Vyapar Mahasangh v. Flipkart Internet Private Limited

[8] 2013 SCC OnLine CCI 25

[9] AFP, Cambridge Analytica: US Court Approves Record $5 Billion Fine of Facebook Over Privacy, NDTV (25.04.2020)

[10] Umar Javeed v. Google LLC, Case No. 39 of 2018, dated 16-4-2019

[11] Reliance Begins Using Whatsapp for Grocery Deliveries Through JioMart, Business Standard, (27.04.2020)

Law School NewsLive Blogging

Hello Folks! Tamil Nadu National Law University welcomes all the participants to the 3rd edition of the National Moot Court Competition.

The Moot Court Competition is organised in collaboration with the Regulatory body – Competition Commission of India (CCI) and in association with EBC-SCC Online as our Knowledge and Research Partner.

Over the next three days, we will witness fierce competition among the teams participating from across the nation. So stay tuned for live updates!

Day 1

1430 to 1530 HRS: SCC-Online Training Session: A SCC Online training session was conducted for participants of the Moot Court Competition. In the one hour session various products & their features offered by EBC viz. SCC Online, EBC Reader, EBC Learning & Mercury were made known to the participants.

1748 HRS We have successfully completed with the registrations! The following are the teams which will be competing for the Winners Trophy!

1.Symbiosis Law School, Pune.

2. Pendakanti Law College, Hyderabad.

3. Symbiosis Law School, Hyderabad.

4. School of Law, SASTRA Deemed University.

5. National Law Institute University, Bhopal.

6. SVKMs NMIMS KIRIT P. MEHTA School of Law, Mumbai.

7. Institute of Law, Nirma University, Gujarat.

8. Rajiv Gandhi National University of Law, Patiala.

9. Chennai Dr. Ambedkar Government Law College, Pudupakkam.

10. School of Legal Studies, CUSAT, Kochi.

11. Dr. Ram Manohar Lohiya National Law University, Lucknow.

12. ILS Law College, Pune.

13. University Law College, Bangalore.

14. West Bengal National University of Juridical Sciences, Kolkata

15. School of Law, Christ (Deemed to be University), Bangalore.

16. National University of Advanced Legal Studies.

17. School of Law, Kashmir University, Srinagar.

18. KMCT Law College, Mamparara.

19. School of Excellence in Law, Tamil Nadu Dr. Ambedkar Law University, Chennai.

20. Symbiosis Law School, Noida.

21. Law Centre I, Faculty of Law, University of Delhi.

22. Maharashtra National Law University, Mumbai.

23. Hidayatullah National Law University, Raipur.

24. Gujarat National Law University, Gandhinagar.

Registrations now stand closed!

1800 HRS Memorials have now been exchanged! Participants are now bracing up for the preliminary rounds to be held tomorrow, while researchers test will be commencing by 1830 HRS.

1830 HRS Researcher’s Test has begun! A one hour test which is scheduled to conclude by 1930 HRS.

1930 HRS Researcher’s Test concludes.

2000 HRS It is Dinner time!

END OF DAY 1! See you tomorrow!

 

DAY 2

Welcome to Day 2 of the CCI – National Moot court Competition. On today’s schedule is preliminary & Quarter final rounds.

0600 HRS The fixtures for the Preliminary Rounds are:

Preliminary Round 1:

1000-1100 HRS: SESSION 1:

  1. Symbiosis Law School, Pune (T01) v School of Law, Kashmir University (T18).
  2. Symbiosis Law School, Hyderabad (T03) v Law Centre-1 Faculty of Law, University of Delhi (T22).
  3. School of Law, SASTRA Deemed University (T04) v NUALS, Kochi (T17).
  4. NLIU, Bhopal (T05) v ILNU, Gujarat (T07).
  5. SVKMs NMIMS Kirit P Mehta School of Law (T06) v University Law College, Bengaluru (T14).
  6. RGNUL (T08) v GNLU (T25).

1145-1245 HRS: SESSION 2:

  1. RMLNLU, Lucknow (T12) v Pendakanti Law College, Hyderabad (T02)
  2. ILS, Pune (T13) v WBNUJS, Kolkata (T15).
  3. SOL, Christ (T16) v SOLS, CUSAT (T11)
  4. SOEL, TN Dr Ambedkar Law University (T20) v Chennai Dr Ambedkar GLC Pudupakkam (T09)
  5. MNLU, Mumbai (T23) v KMCT Law College, Mamparara (T19).
  6. HNLU, Raipur (T24) v SLS, Noida (T21)

Preliminary Round 2:

1400-1500 HRS: Session 1 

  1. ILNU, Gujarat (T07) v MNLU, Mumbai (T23).
  2. NUALS, Kochi (T17) v SLS, Pune (T01).
  3. GNLU, Gandhinagar (T25) v SLS Hyderabad (T03).
  4. WBNUJS (T15) v SOL, Christ (Deemed to be) University (T16).
  5. Chennai Dr Ambedkar GLC Pudupakkam (T09) v HNLU, Raipur (T24).
  6. University Law College, Bengaluru (T14) v RMLNLU (T12).

1545-1645 HRS: Session 2

  1. Pendakanti Law College, Hyderabad (T02) v SVKM KPM School of Law, Mumbai (T06).
  2. SLS Noida (T21) v SOEL, Chennai (T20).
  3. School of Legal Studies, CUSAT (T11) v ILS, Pune (T13)
  4. Law Centre, Faculty of Law, University of Delhi (T22) vRGNUL (T08).
  5. School of Law Kashmir Univerity, Srinagar (T18) v School of Law, SASTRA, Thanjavur (T04)
  6. KMCT College, Manparara (T19) v NLIU, Bhopal (T05).

0800-0900 HRS: The participants are gearing up for the hectic day ahead!

0930 HRS: The judges have arrived!

1000 HRS: Preliminary Round 1 Session 1 commences!

1100 HRS: Preliminary Round 1 Session 1 Concludes!

1145 HRS: Preliminary Round 1 Session 2 Commences!

1245 HRS: Preliminary Round 1 Session 2 Concludes!

1817 HRS: Preliminary Round 2 Session 1 & 2 Concludes!

The participants are now eagerly waiting for the results – the teams qualifying to the Quarter Final rounds!

1847: The results are out! Following are the teams which have qualified for the quarterfinal rounds (in no particular order:

  1.  T16 : School of Law Christ University
  2.  T23 : MNLU, Mumbai
  3.  T03 : SLS, Hyderabad
  4.  T13 : ILS, Pune
  5.  T01 : SLS, Pune
  6.  T25 : GNLU, Gandhinagar
  7.  T08 : RGNUL
  8.  T20 : SOEL, TNDALU, Chennai

Congratulations to the teams which have made to the first stage of the Advanced Rounds!

2205: The teams qualifying for the semi-finals are:

  1. T01: SLS, Pune (The team qualified for the semis in the previous edition too!)
  2. T23: MNLU, Mumbai
  3. T16: School of Law, Christ University
  4. T03: SLS, Hyderabad

The fixtures for the semi-finals are:

T16 v T03: School of Law, Christ (Deemed to be) University v SLS, Hyderabad.

T23 v T01: MNLU, Mumbai v SLS, Pune.

The Memorial exchange is underway! Participants are excited about the competition to follow!

Day2: The Semi-Finals have now come to an end!

1400 HRS: The teams qualifying for the finals are School of Law, Christ (Deemed to be) University & MNLU, Mumbai.

Congratulations to the teams!

The finals will commence

The judges for the finals are: Shri Ved Prakash Mishra, Shri Dr. TS Somashekhar & Shri Rahul Goel.

Prof. Dr. TS Somashekhar is Director of Competition & Regulation at the prestigious National Law School of India University, Bengaluru.

Shri Rahul Goel practice focuses on Competition/ Anti-trust laws and Technology, Media & Telecommunication Laws and is a Partner at IndusLaw.

Waiting for the nail-biting finals to commence!

1630: Finals have concluded & it is now time for the results.

1730: The Results are Out!

Winners: MNLU, Mumbai – The team also bagged the Best Memorial Award.

Runners-Up: CHRIST (Deemed to be) University, Bengaluru.

 

SIGNING-OFF – ON BEHALF OF THE TNNLU NATIONAL MOOT COURT COMPETITION ORGANISING COMMITTEE & MOOT COURT COMMITTEE – UJJWAL JAIN, Student Ambassador, EBC-SCC ONLINE & TNNLU MCC Member!

Business NewsNews

The Competition Commission of India (CCI) approves the proposed combination between Yum Restaurants (India) Private Limited (YRIPL) and Devyani International Limited (DIL) involving acquisition of certain  equity shareholding and sale of certain KFC restaurants.

YRIPL is a private limited company incorporated in India and is a part of Yum! Brands Inc,-a USA based entity. It is stated that in India YRIPL runs restaurants under three Brands i.e. KFC, Pizza Hut and Taco Bell.

DIL is a public company incorporated in India. It is stated to be present in QSR segment in India and is one of the franchisees of YRIPL. Further, as a franchisee, it runs, maintains and operates KFC and Pizza Hut/Pizza Hut Delivery restaurants in certain territories of India.

The CCI approved the proposed combination under Section 31(1) of the Act.


Ministry of Corporate Affairs

[Press Release dt. 03-02-2020]

[Source: PIB]

Op EdsOP. ED.

Economics has made a substantial contribution to our understanding of the law, but the law has also contributed to our understanding of economics.… The study of law gives economists an opportunity to improve the understanding of some of the concepts underlying economic theory.”

— David D. Friedman

Law and economics refer to the study of the application of the economic theories of law on the applications of law, was a brainchild of the Chicago School of Economics. The bringing together of the legal theory and economic reasoning brings out the psychological aspects of the changes that the new legal trends bring about and its impact on the rationality of the people. Law and economics albeit being new and recent, has been a development and a work in progress as we look at and the divergence of which cannot be fully explained and known presently. With the evolution of science and technology and the internet reaching its far heights, the value of consumer protection and more use of legally binding contracts and agreements are becoming increasingly at par with the ever-growing industries everywhere. With the advancement of the e-commerce industry, the business to business (B2B) and the business to customer (B2C) governing laws have turned out to be a major concern of this uprising front of the industry. The B2B laws govern the transactions between two or more businesses, whereas the B2C laws govern the laws and their contracts with the general public. Varied applications of the economic impacts of the law on the country and the people and vice versa is just a glimpse of what this developing study of law and economics pertains to.

Electronic commerce has been defined as the purchase and sale of commodities via the use of the internet. There can be sale of physical products as well for which money transfer takes place online. E-commerce takes into account different forms such as retail, wholesale, crowdfunding, subscription, physical products and services. The embellishment reasons of e-commerce are that with immense ease, it also cuts down on the cost of inventory management due to which it attracts new customers and bring them into the field of the online market. This enables a trader to stay open all the time and sell their products all across the nation.

E-commerce in India comprises the second largest user base in the world but the market is comparatively smaller than that of the United States or France. It is believed that e-commerce will grow at a very high rate in India touching $150 billion by 2020. Presently, Flipkart Pvt. Ltd. and Amazon.com Inc. are dominating the Indian markets but over time with an increase in the middle-class population, new entities will establish themselves. E-tail and e-travel will dominate the Indian market in the near future. India’s e-commerce industry is expected to contribute 4% of GDP by 2022 and match with China’s demands in 5-6 years.

Nevertheless, the major players in the Indian e-commerce sector underwent a jolt before the new year after the Department of Industrial Policy and Promotion tightened some of the Foreign Direct Investment rules through a Press Note which came as a huge setback for Amazon and Flipkart, the dominant players in the Indian e-commerce sector. This paper analyses the changes brought in by the Press Note 2 and how such changes are going to have an effect on the e-commerce sector in the upcoming times. Unfortunately, it seems the road ahead is full of obstacles.

Introduction

The last week of 2018 brought forth a new development with the new e-commerce policy being announced by the Government.  They went ahead and tightened some norms and regulations for the e-commerce players, a move that struck hard to the likes of Flipkart and Amazon, for now, they cannot sell products of companies in which they have stake.[1] The Department of Industrial Policy and Promotion (DIPP) in its Press Note 2 (Press Note) issued in December last year, made significant changes to Foreign Direct Investment (FDI) rules in the e-commerce sector in India.[2]

The big trigger which led to such changes was the increasing complaints being made to the Competition Commission of India (CCI) and All India Vendors Association (AIVA) from the small brick and mortar traders against Amazon and Flipkart, that they have been favouring their own subsidiaries on their platform to such an extent that the revenues of small scale traders are taking a hit. Some of these changes have been made in the backdrop of a lot of opposition and resistance from the trader’s association such as the Confederation of All India Traders (CAIT).[3] It is pertinent to note that the Press Note was released to acknowledge some of the major concerns raised by the trader’s association after the CCI approved the merger between Walmart and Flipkart where Walmart which happens to be the largest private employer in the USA purchased majority of the shares of Flipkart, the largest e-commerce company of India.[4]

The important point to take into consideration is that a small number of sellers in Flipkart’s online marketplace played a major contribution in its substantial shares. These small sellers were also the customers of Flipkart in the (B2B) segment as a result of which they were given preferential treatment by way of hefty discounts from both the B2B segment and online marketplaces.[5] However, even after taking note of such major concerns, the CCI decided not to address such competition concerns on the grounds that such concerns were not incidental to the impugned combination, thus playing a safe hand. The failure of CCI to address such issues led to the Government making major policy changes to provide relief to the small traders and sellers.

These changes aim to make the marketplaces far more genuine for there has always been complaints that the online marketplace as a channel offers regulatory arbitrage. The whole logic and the reasoning of a marketplace functioning is to have a genuine marketplace where there are only connecting sellers and buyers. This reasoning often used to get questioned. The FDI e-commerce policy clearly states that while FDI is allowed in the marketplace but it is not allowed in the inventory-led model.[6] The likes of Amazon and Flipkart hold major stakes in their online marketplace such as Cloudtail and RetailNet respectively which are big sellers on their respective platforms. This led to preferential treatment by way of providing hefty discounts to such marketplaces. With the new changes coming into place major players such as Amazon and Flipkart will have to make sure that they maintain fair play on the platform and maintain an arm’s length distance while providing discounts to such sellers.

While these changes are welcomed and the intention of the Government in bringing such changes might be to curb the unfair practices and ensure fair play in the marketplace, however, these changes are not entirely free from the lacunas and the Government will have to address such grey areas in the near future for proper functioning of the marketplace.

Business Models

In order to understand the changes brought in by policy, it becomes important to first understand the inventory-led model and which are the prevalent business models in the e-commerce sector.

Inventory Model: A brand while selling online on sites like Amazon and Flipkart is most likely to first sell to an intermediary alpha seller entity like Cloudtail or RetailNet and then these entities are selling to the end consumer on the e-commerce marketplaces like Amazon and Flipkart.

Marketplace Model: In this model, the brand directly sells to the end consumer via Flipkart or Amazon with e-commerce marketplaces. This can be done in two ways. First, one could ship the product form his own warehouse directly to the end customer which is said to be the pure marketplace model or, second, one could follow the Fulfilled by Amazon (FBA) model or Flipkart Advantage (FA) model where a brand could keep some of its stock in Amazon and Flipkart warehouses and then when the orders are received these stocks are shipped to the end consumers from those warehouses, the products being owned by the vendors while they use their warehousing services.

Changes

The DIPP issued guidelines and clarifications on rules pertaining to FDI in e-commerce. The highlights of the Press Note were the definitions of the marketplace and also the fact that the Press Note categorically states that FDI will be prohibited in inventory-led e-commerce models while 100% FDI through the automatic routes will be allowed in marketplace models.

Firstly, the policy mandates that 100% FDI is only allowed in the e-commerce marketplace model.[7] Secondly, no equity participation is allowed by the marketplace in the selling entity[8] thus prohibiting such marketplaces from selling products of entities related directly or indirectly on their platform. Thirdly, the marketplace cannot exercise control on the inventory. In fact, they have clarified this point further by saying that not more than 25% sales of the selling entity can come from one marketplace or a group[9] such as Flipkart, Myntra and Jabong which are one group. Fourthly, no exclusivity can be offered by the marketplace.[10] Fifthly, discounts and cashbacks cannot be influenced by the marketplace[11], although this rule has been in place for some time now but the word “cashback” has been added because people were circumventing in discounts in form of cashbacks. Sixthly, the contact details of the selling entity need to be clearly made visible on the marketplace to the customers.[12]

Implications

The no-equity participation rule and the 25% sales in one marketplace rule have direct ramifications for the marketplaces if they have been selling through the alpha sellers, for example, Cloudtail and RetailNet in cases Amazon and Flipkart respectively. The future of these models has now become unclear and now such brands need to think about alternative measures. Now, all the brands need to rethink about directly participating in the marketplace model. This could be done either through one’s own warehouse if they are equipped to handle single piece orders or through the models like Fulfilment by Amazon (FBA) model or the Flipkart Advantage (FA) model which are already in place.

The 25% sale in one marketplace rule and the exclusivity rule will have major ramifications for online brands and private labels of marketplaces because invariably they will end up having more than 25% of share in one marketplace. Further, the decline on the private label side can be expected which will provide an opportunity to homegrown Indian brands to go and capture the market.

If the 25% sale rule and exclusivity rule are coupled along with the curb on discounts and cashbacks rules, it becomes a great level playing field for traditional online as well as offline brands who were finding it difficult to compete due to the predatory pricing mechanism of these e-commerce marketplaces.

Furthermore, the contact details of the seller, being directly visible on the marketplace and the customer satisfaction being the responsibility of the seller would mean that brands will have to evolve their consumer relationship management (CRM) practices. Marketplace orders now need to flow into an integrated CRM where the call centre will be able to pop-up the Amazon order and answer any questions.

In the backdrop of elections as well as traders lobby putting a fair degree of pressure, the Government has made some significant changes in the policy. The few ones that merit significant attention is that though 100% FDI is permitted under the automatic route[13] it has been made applicable only to the marketplace model and not the inventory-based model of e-commerce. This provision albeit existing, was being openly flouted. However, the present Press Note went on to make this rule more stringent bringing in new regulation measures per which inventory-based model can appear only through ownership or control. A vendor is supposed to not only hold an ownership stake in the new product but also control that inventory. With the marketplace controlling that inventory, it becomes an inventory-driven marketplace in which FDI is prohibited.[14] This change in effect means that marketplace entities going forward cannot exercise any degree of control over the actual supply of the products. Further, they have also changed to the effect that insofar as any after-sales delivery and customer satisfaction is concerned, the product has to be solely handled by the sellers.[15] Both these changes are of immense implication for the ongoing marketplaces.

Other major changes that garners attention is that the Press Note imposes an embargo on the marketplaces by stating that if any of the group companies are selling more than 25% of what the vendor is selling on the marketplace, it will fail to qualify as a marketplace and will be seen as an inventory-driven FDI marketplace where FDI is prohibited.[16] According to these new regulations an entity can take up only 25% of the purchases from its subsidiary. Given the fact that entities such as Cloudtail contribute almost 40% to the business of Amazon and similarly RetailNet which contributing a fair share to Flipkart’s sales, this regulation going to have a huge impact on the big giants.

The impact of this rule can be broken down into two levels. Firstly, that the wholesale arms of these marketplaces cannot be selling more than 25% of what the vendor is purchasing. The important point to note here is that Amazon wholesale or Flipkart wholesale were supplying products in huge volumes and value to a number of vendors who were selling on these marketplaces. The new regulations have placed an embargo on such practice by restricting the vendors from purchasing more than 25% from group entities of the marketplace. Secondly, the other big restriction brought about by the new regulations is that the marketplace entity or any of the group companies of the marketplace entity cannot own a single percentage of equity in any company which is a vendor on the marketplace.[17] Such a regulation ties into the whole point of players such as Cloudtail and RetailNet or other marketplaces where there is indirect foreign investment. However, it remains to be seen whether no equity participation would also include indirect equity participation as in some of the marketplaces and seller entities the foreign investment is not there at the direct level but it is one layer above. The intent of the policymakers is clearly to keep the marketplace genuine where the scope or the relevance of the marketplace in driving sales has to be kept limited.

As a result of such regulations coming into place, Morgan Stanley warned that Walmart may exit the Indian e-commerce sector.[18] It is a major concern as Amazon decided to shut down its retail business in China after the Chinese Government imposed similar restrictions in the country.[19]

Before the new regulation coming into effect, Flipkart and Amazon could sell their own line of products such as AmazonBasics, Flipkart SmartBuy etc. which proved to be profitable for them as they could lower the costs and the supply chain process. As a result of these new restrictions marketplace such as Amazon reduced its stake in its group company Cloudtail from 49% to 24%.[20]

The Press Note also imposes a ban on the exclusive tie-ups with the sellers.[21] The intention behind this regulation is to create a level playing field and ensure uniformity in the market. This regulation seeks to take away the dominant position of some of the marketplace entities such as Flipkart and Amazon and exclusive sale of smartphone brands such as OPPO, VIVO, XIAOMI, etc. could be a thing of the past.[22] This rule restricts marketplace entities from giving preferential treatment to particular sellers and thus maintains an arm’s length basis.

Further, the Press Note mandates that cashbacks that are provided to the buyers by a group of companies of a marketplace entity should be fair and non-discriminatory.[23] This regulation has got its origin and background in the context of the fact that the earlier policy stated that the marketplace entity should not directly influence the price at which products are to be sold[24]. However, number of trader associations had raised grievances before the Government that the particular policy is not being followed in letter and spirit following which the Government went on to become extremely prescriptive to address the perceived abuse. The new regulation, however, does not change the overall nature of the restriction that was already present.

The issue of marketplaces influencing sale prices gained attention in April 2018 after the Income Tax Appellate Tribunal in Flipkart India (P) Ltd. v. CIT[25] noted that Flipkart is indulging in predatory pricing and that it has its nexus with certain specific retailers for increasing its profit. Thus, the Government vide Press Note has made efforts to curb the issue of predatory pricing and preferential treatment by clearly stating that the group companies can provide only fair and non-discriminatory cashbacks and prohibiting the marketplaces from giving preferential treatment to specific vendors. This restriction has come as great relief to brick and mortar retailers and small e-commerce players with Snapdeal’s CEO Kunal Bahl welcoming the new regulations.[26]

Plugging the Loopholes

The Government released the Press Note to establish a level playing field in the Indian e-commerce sector and making the sector fair and just for all. However, the Government in its pursuit to address the concerns of the e-commerce sector have left some grey areas which may merit re-evaluation in the future.

The timeline provided to marketplaces to implement changes was fairly short given the fact that significant changes were brought in by the Press Note and that would have required a significant amount of restructuring by the existing marketplaces as the regulations has a significant amount of ramifications for the current business model on which the current marketplaces are running. Flipkart’s Chief Executive, Kalyan Krishnamurthy in his letter to India’s industry department requested the Government for extension of time for implementing the new rules as he feared that the new regulations could cause significant customer disruption in the case of non-extension of the deadline for implementation of new rules.[27]

The new norms have also banned the exclusive tie-ups which will have big implications on a lot of brands that have been looking at specific tie-ups with either Flipkart or Amazon. The Government here has gone a little overboard in its measure to check the anti-competitive practices. In order to ensure and streamline the process of a genuine marketplace, the Government has taken away the party autonomy that comes with any business model. If a brand intends to tie-up with particular marketplace for it offers better commercial value to them then they should be allowed to do so. Such a condition restricting a vendor to tie-up exclusively with one particular marketplace does not even serves the objective the Press Note seeks to achieve which as a matter of fact has not been laid down clearly in black and white. This regulation has taken away the party autonomy and is not in line with any intent that one could have deciphered from the policy announcement.

Further, the new regulations have severely hit the marketplaces such as Flipkart and Amazon while excluding the domestic marketplace entities such as Patym Mall, Snapdeal, etc.[28] The prime intention of the Government in bringing new regulations was to create a level playing field in the Indian e-commerce sector and ensure fairness and justice. However, the new regulations failed to take the domestic entities within its ambit thus giving rise to the possibility of such domestic entities indulging in unethical business practices which would further raise competition concerns in the sector as this will give a clear advantage to these domestic players thus defeating the objective of the Government behind introducing the Press Note. While on one hand, the FDI marketplace is finding it tough to adhere to the new norms and regulations, on the other hand, these regulations provide an opportunity for the domestic players to take undue advantage.

The Press Note has also banned the marketplaces from providing hefty discounts and cashbacks. However, since the Government did not appoint any agency to ensure proper compliance of the rules, these marketplaces are likely to come up with innovative methods of providing discounts.[29] Also, there is a threat that such a restriction will have a negative impact on the customers at large as deep discounts and cashbacks are the primary incentive for most of the people in India behind shopping online. Further, these regulations do not take offline retailers within its ambit neither the same is clear from any provision which gives the offline retailers undue advantage. Further, although the Press Note talks about cashbacks provided by the group companies it is silent on the point of cashbacks provided by the marketplace entities. Marketplace entities can provide deep discounts and hefty cashbacks that could result in unfair and discriminatory pricing.

Furthermore, the Press Note failed to take into consideration the problems of implementation of some regulations. The Press Note does not even mentions any criteria to assess whether 25% purchases of a vendor are from the marketplace entity or its group companies considering the fact these marketplace entities do not even have the access to the accounts book of most of its vendor.

The new regulations also prohibit preferential treatment to any vendor in similar circumstances without providing any proper interpretation of the term “similar circumstances” thus giving uncontrolled discretionary power to the regulatory bodies.

Conclusion

The new policy brought in by DIPP should be welcomed as in the long run it has the potential of creating a level playing field. In the short run, entities might face some operational challenges of moving from the alpha seller model to the marketplace model directly. However, no matter how good the intention of the Government might be behind bringing the changes, they need to open their eyes soon and take step towards curbing the loopholes in the new policy as it clearly discriminates between foreign and domestic companies giving a clear-cut advantage to the latter. If these problems are not solved soon then the whole objective of the Government will face a major setback. In fact, as stated earlier there is a threat that major marketplace like Flipkart might end their operation in India. Such a possibility cannot be ruled out given the fact that Amazon decided to take an exit from the Chinese e-commerce sector in light of similar restrictions. Therefore, to prevent such extreme measure the Government should look forward to work in collaboration with these big entities and come up with rules, that is beneficial for all.


†  3rd year student, NUSRL, Ranchi.

[1] Govt. Tightens Norms for Etailers, Bars Exclusive Deals, The Economic Times (27-12-2018, 11.57 a.m.) <https://economictimes.indiatimes.com/news/economy/policy/government-tighten-norms-for-e-commerce-companies-for-sale-of-products/articleshow/67258251.cms>.

[2]  Press Note 2, Department of Industrial Policy and Promotion <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[3]  War Against Flipkart! Traders Association CAIT Complains to ED; Alleges Violation of Trade Rules, Financial Express (1-6-2018, 3.23 p.m.) <https://www.financialexpress. com/industry/war-against-flipkart-traders-association-cait-complains-to-ed-alleges-violation-of-trade-rules/1189833/>

[4]  Walmart International Holdings, In re, 2018 SCC OnLine CCI 103.

[5]  Walmart International Holdings, In re, 2018 SCC OnLine CCI 103, (para 13).

[6] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.3(ii)  <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[7] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.3(i) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[8] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(v)  <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[9] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(iv) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[10] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(xi) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[11] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(ix) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[12] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(vi) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[13] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.3(i) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[14] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(iv) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[15] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(vi) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[16] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(iv) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[17] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(v) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[18]  Nishanth Vasudevan and Samidha Sharma, Morgan Stanley Warns Walmart may Exit Flipkart Post New FDI Rules, The Economic Times (5-2-2019, 4.27 p.m.) <https://economictimes.indiatimes.com/industry/services/retail/morgan-stanley-warns-walmart-may-exit-flipkart-post-new-fdi-rules/articleshow/67843595.cms>.

[19]  Amazon Plans to Shut Online Store in China, BBC (18-4-2019) <https://www.bbc.com/news/business-47972634>.

[20]  Shambhavi Anand and Chaitali Chakravarty, Key Amazon Seller Cloudtail Returns in a New Avatar, The Economic Times (7-2-2019, 11.29 a.m.) <https://economictimes.indiatimes .com/industry/services/retail/key-amazon-seller-cloudtail-returns-in-a-new-avatar/articleshow/67877172.cms>.

[21] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(xi) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[22]  Subhayan Chakraborty and Karan Choudhury, New Govt. Norms may End Amazon, Flipkart Flash Sales and Discounts, Business Standard (27-12-2018, 4.22 a.m.) <https://www.business-standard.com/article/economy-policy/amazon-flipkart-may-feel-the-pinch-after-govt-bars-exclusive-deals-118122600873_1.html>.

[23] Press Note 2, Department of Industrial Policy and Promotion, Para 5.2.15.2.4(ix) <https://dipp.gov.in/sites/default/files/pn2_2018.pdf>.

[24] Press Note 3 (2016 Series), Department of Industrial Policy and Promotion, Para 2.3(ix) <http://dipp.nic.in/sites/default/files/pn3_2016_0.pdf>.

[25]  ITA No. 693. Bang/2018 (Asst. Year – 2015-16) <https://taxguru.in/wp-content/uploads/2018/08/Flipkart-India-P-Ltd.-Vs-Asstt.-CIT-ITAT-Bangalore.pdf>.

[26] Govt. Tightens Norms for Etailers, Bars Exclusive Deals, The Economic Times (27-12-2018, 11.57 a.m.) <https://economictimes.indiatimes.com/news/economy/policy/government-tighten-norms-for-e-commerce-companies-for-sale-of-products/articleshow/67258251.cms>.

[27] New E-Commerce Rules: Flipkart Warns of Major Customer Disruption, Livemint (29-1-2019) <https://www.livemint.com/industry/retail/flipkart-amazon-new-e-commerce-rules-1548756549308.html>.

[28]  E-Commerce FDI Norms Should be Applied on Domestic Players Also: CAIT, Business Standard (1-1-2019, 1.23 a.m.) <https://www.business-standard.com/article/companies/e-commerce-fdi-norms-should-be-applied-on-domestic-players-also-cait-118123100412_1.html>.

[29] E-Commerce Discounts May Continue, But in Innovative Ways, Livemint (28-12-2018, 12.39 p.m.) <https://www.livemint.com/Industry/QCRLPPX16uWwsTfFX07V0M/Ecommerce-discounts-may-continue-but-in-innovative-ways.html>.

Cyril Amarchand MangaldasExperts Corner

Introduction

Section 26(1) of the Competition Act, 2002 (as amended) (Act) is an important provision under the Act and empowers the Competition Commission of India (CCI) to order an investigation by the Director-General (DG) if it forms an opinion that there exists a prima facie case (PF order) in respect of an information. Post the PF order, the DG initiates his investigation into the alleged anti-competitive conduct of the parties. 

The scope of the DG’s investigative powers and the manner in which the DG can exercise such powers has been a contentious issue since the introduction of the Act. Parties to a matter often challenge the reports submitted by a DG (DG reports) by questioning either the scope of the investigation or the jurisdiction of the DG.

Over the years, the Supreme Court of India (SC) and certain High Courts have laid down precedent and partially clarified the scope of the DG’s powers. These precedents have touched upon fundamental questions such as—can the DG include any additional information, implead other parties, increase the scope of the investigation, etc. in the absence of a specific direction from the CCI or otherwise.

Can the DG Investigate Facts not Considered by the CCI in their PF Order

In May 2017, the SC in Excel Crop Care Ltd. v. Competition Commission of India[1](Excel Crop) held that the DG would be well within its powers to investigate and analyse additional facts during its investigation subject to certain conditions. The SC decision was in respect of an order of the CCI wherein the information was received in the form of a letter from the Food Corporation of India (FCI) and a DG investigation was ordered to see whether there existed an agreement between manufacturers of a certain food element. The DG in its investigation also took into account a letter written to them separately by the FCI. 

The SC clarified that the purpose behind a DG investigation is to inquire into anti-competitive practices and this includes that the DG considers all necessary facts and evidence. The SC stated that if during an investigation, other facts pertaining to the case were brought to light; the DG would be within their powers to bring them to the forefront in their report. However, the starting point of the inquiry would be the allegations, which are contained in the information. The SC reasoned that at the initial stage, the CCI could not foresee and predict whether any violation of the Act would be found upon the investigation and the nature of violations that would become known.

It is pertinent to point out that the order of the SC did not lay down any general guiding principles in respect of the powers of the DG and thus, different aspects of this issue have been analysed and decided upon by various High Courts in subsequent decisions. 

Addition of Third Parties to the DG Report

In July 2018, the High Court of Madras (Madras HC), in Hyundai Motor India Ltd. v. Competition Commission of India [2]heard an appeal challenging the order of the CCI through which it expanded the scope of the investigation over and above the three-car manufacturing companies to cover other manufacturers who were not specifically mentioned in the complaint. In this case, the DG had found some information against certain car manufacturers who were not named in the original complaint following which he sought permission from the CCI to expand the scope of investigation. The Madras HC noted that the DG did not initiate an investigation suo motu, and sought permission of the CCI. The Madras HC also reiterated the position adopted by the SC in Excel Crop[3] by stating that the scope of DG’s investigation is not limited to the allegations contained in the original complaint and he is empowered to investigate other facts that get revealed while the investigation is carried out.

The Madras HC also made a reference to the proviso to Section 26(1) of the Act stating that if the subject-matter of information received is substantially the same as, or has been covered by any previous information received, then the new information may be clubbed with the previous information. In the present case, the information placed before the CCI was already available in the complaint, and the CCI had already formed a prima facie opinion regarding the information and no further recording of subjective satisfaction was required.

Therefore, the Madras HC found that expanding the scope of the investigation to car manufacturers who were not expressly mentioned in the complaint was well within the DG’s jurisdiction. 

Similarly, the Division Bench of the High Court of Delhi (Delhi HC) in September 2019 in  Cadila Healthcare Ltd. v. Competition Commission of India [4]delved into the issue of whether the DG could have proceeded against Cadila Healthcare Limited (Cadila) without a separate order under Section 26(1) authorising investigation against it. In the present case, Cadila was added as a party based on a DG report. It was argued by Cadila that the DG could not have proceeded against it on the strength of a previous order, which was not based on any material or allegation with respect to complicity of Cadila and consequently, the investigation and report against it was a nullity.

Further, Cadila tried to distinguish the Excel Crop case [5] by arguing that an initial order covering a few issues relating to anti-competitive practices of a particular period against one party can lead to a valid investigation into similar, later actions against the same party. However, there was no legal sanction for investigation into acts or omissions of another party by the DG, in the absence of express authorisation regarding its role by the CCI, in a separate and subsequent PF order under Section 26(1).

The Delhi HC rejected this argument observing that the scope of an inquiry at Section 26(1) stage is to investigate the market behaviour frowned upon under Sections 3 and 4 of the Act and not to look at specifically mentioned individuals. The Court also stated that a specific order by CCI applying its mind into the role played by Cadila was not essential before the DG could have proceeded with the inquiry.

Subject-Matter of Investigation

Recently in September 2019, a Division Bench of the Delhi HC decided upon the scope of investigation by the DG in Competition Commission of India v. Grasim Industries Ltd.[6](Grasim). The decision arose out of a letter patent appeal filed against the order of the Single Judge in Grasim Industries Ltd. v. Competition Commission of India (impugned order)[7]. The Single Judge Bench of the Delhi HC had held that a direction issued by the CCI to the DG to investigate violations of Section 3(3) of the Act did not empower the DG to conduct an investigation of any potential violation of Section 4 of the Act. The impugned order stated that the CCI would be entitled to treat the aforesaid part of the report of the DG as a separate “information” under Section 19 of the Act requiring the CCI to proceed differently if it was of the opinion that there existed a prima facie case of contravention of Section 4 of the Act.

The Division Bench of the Delhi HC overturned the decision of the Single Judge, referring to Competition Commission of India v. SAIL[8](SAIL case) and stating that the opinion formed by the CCI at the stage of issuing directions to the DG under Section 26(1) of the Act is not intended to restrict the opinion that may be formed by the DG upon such investigation. The Court observed that an order of the CCI under Section 26(1) of the Act only “triggers” an investigation by the DG, and that the powers of the DG are not necessarily circumscribed to examine only the subject-matter of the original complaint.

The Delhi HC made a reference to Regulations 18(1) and 20(4) of the CCI (General) Regulations, 2009 (CCI Regulations) emphasising that the DG is required to comprehensively investigate a matter and the DG cannot be constrained from examining additional facts and violations of competition law merely because the information before the CCI does not pertain to additional facts. 

Applying the principle of the SC in Excel Crop.[9], the Delhi HC held that the language of the CCI order was broad enough for the DG to investigate a violation under Section 4 of the Act. It was also clarified that the scope of investigation by the DG is not limited to the PF order by CCI under Section 26 of the Act and the DG may also examine other violations that may have come to his notice while undertaking the investigation pursuant to CCI’s PF order.

Conclusion 

The SC’s ruling in Excel Crop [10] along with all the decisions of the Delhi HC and Madras HC has increased the scope of the DG’s investigative powers. However, the powers of the DG emanate from the CCI’s PF order only. It is important to note that the courts have emphasised that a restrictive interpretation of the DG’s powers would negate the purpose of investigation. The trend is moving towards achieving the goals of competition by bringing to light any information that arouses suspicion of an anti-competitive practice and investigate such conduct. 

This approach of the courts is in line with the SAIL case [11] and ensures that issues that could not be identified by the CCI at the PF order stage are identified and investigated by the DG instead. 

However, the powers of the DG are still restricted by the language in which the CCI directs such an investigation and ensures that the DG does not have unfettered powers to carry out roving inquiries against unrelated parties. 


*Dhruv Rajain, Principle Associate, can be contacted at dhruv.rajain@cyrilshroff.com. Siddhant Khetawat, Associate can be contacted at siddhant.khetawat@cyrilshroff.com, Shreya Joshi, Associate can be contacted at shreya.joshi@cyrilshroff.com and with the Competition Law Practice at Cyril Amarchand Mangaldas.

[1] (2017) 8 SCC 47

[2] Competition Appeal (AT) No. 6 of 2017, decided on 19-9-2018.

[3] (2017) 8 SCC 47

[4] 2018 SCC OnLine Del 11229

[5] (2017) 8 SCC 47

[6] 2019 SCC OnLine Del 10017

[7] 2013 SCC OnLine Del 5109

[8] (2010) 10 SCC 744

[9] (2017) 8 SCC 47

[10] Ibid.

[11] (2010) 10 SCC 744

Business NewsNews

The Competition Commission of India (CCI) approves acquisition of shares in My Home Industries Private Limited by My Home Constructions Private Limited and its affiliates.

The proposed combination envisages acquisition of 50% of the shareholding of My Home Industries Private Limited (My Home Industries) by My Home Constructions Private Limited (MHCPL), Jupally Real Estate Developers Private Limited (JREDPL) and Dr Rameswar Rao Jupally.

MHCPL and JREDPL are part of My Home Group based out of Hyderabad, Telangana.  Dr Rameswar Rao Jupally is the promoter of My Home Group, which has interests in construction and real estate development, manufacturing and supply of grey cement, power consultancy, power generation, power trading, transportation and logistics, media and broadcasting, pharmaceutical and education.

My Home Industries is a 50:50 joint venture between CRH India Investments B.V. and the Acquirers. It is engaged in the manufacturing and supply of grey cement under the brand name “Maha Cement” in India. It is present in the states of Andhra Pradesh, Tamil Nadu, Union Territory of Puducherry, Telangana, Kerala, Karnataka, Odisha, West Bengal, Bihar, Maharashtra, Jharkhand and Chhattisgarh. It is also engaged in power generation activities from waste heat and solar power sources for the purposes of captive consumption.


Ministry of Corporate Affairs

[Source: PIB]

[Press Release dt. 27-12-2019]

Business NewsNews

The Competition Commission of India (CCI) received the following three Green Channel combinations filed under sub-section (2) of Section 6 of the Competition Act, 2002 (Act) read with Regulation 5A of the Competition Commission of India (Procedure in regard to the transactions of business relating to combinations) Regulations, 2011 (Combination Regulations):

  1. Acquisition of IDBI Asset Management Ltd. (IAML) and IDBI MF Trustee Company Ltd. (IMTL) by Muthoot Finance Limited (MFL) [filed on 16th December 2019]

The notification relates to the acquisition of 100% equity shares of both IAML and IMTL by MFL. MFL, a non-deposit taking NBFC registered with the RBI and provides secured and unsecured loan (financing) against collateral of gold jewellery to companies and individuals. IAML’s principal activity is to act as an asset management company to the IDBI Mutual Fund. IMTL acts as the trustee company of IDBI MF in India. IDBI Bank holds 100% shareholding in IMTL.

Summary of the Proposed Combination is available at: https://www.cci.gov.in/sites/default/files/notice_order_summary_doc/C-2019-12-710.pdf 

  1. Acquisition of Adani Electricity Mumbai Limited (AEML) and Adani Electricity Mumbai Services Limited (AEMSL) by Qatar Holding LLC (QH) [filed on 19th December, 2019]

The notification relates to the acquisition by QH of 25.1% equity shares of AEML and AEMSL from Adani Transmission Limited.  QH, registered as a FPI with SEBI, is an investment holding company of Qatar Investment Authority (QIA).  AEML is the licensee for an integrated power distribution, transmission and generation business. AEMSL is a newly incorporated entity and is currently not engaged in any business activity. AEMSL intends to provide certain captive services to AEML and ATL.

Summary of the Proposed Combination is available at

https://www.cci.gov.in/sites/default/files/notice_order_summary_doc/C-2019-12-712.pdf

3. Acquisition of GVK Airport Holdings Limited (GVKAHL ) by Green Rock B 2014 Limited (Green Rock), National Investment and Infrastructure Fund (NIIF) and Indo-Infra Inc. (Indo-Infra) [filed on 19th December, 2019]

The notification relates to acquisition of shares of, and control over, GVKAHL (and/or of its affiliates) and through GVKAHL (and/or through its affiliates), control over GVKAHL’s subsidiaries, Mumbai International Airport Limited (MIAL) and Navi Mumbai International Airport Private Limited (NMIA) by Green Rock, NIIF, and Indo-Infra. Green Rock, a trustee of Green Stone Trust has made certain investments in India and does not carry out any business activities directly in India. NIIF is an alternative investment fund with a focus to provide long-term capital to the country’s infrastructure sector. Indo-Infra is a holding company and part of the PSP group. PSP is a Canadian Crown corporation established by the Canadian Parliament under the Public Sector Pension Investment Board Act. GVKAHL is an affiliate of the GVK group. GVKAHL is a holding company for MIAL and its subsidiaries and joint ventures, and is also intended to engage in the business of developing infrastructure facilities and investing in companies directly or indirectly developing, operating and managing airports.

Summary of the Proposed Combination is available at

https://www.cci.gov.in/sites/default/files/notice_order_summary_doc/C-2019-12-713.pdf

          The Proposed Combinations filed under sub-section (2) of Section 6 of the Act read with regulations 5A of the Combination Regulations (i.e. notice for approval of Combinations under Green Channel) shall be deemed to have been approved upon filing and acknowledgment thereof.

CCI Green Channel

The CCI introduced an automatic system of approval for combinations under ‘Green Channel’. Under this process, the combination is deemed to have been approved upon filing the notice in the prescribed format. This system would significantly reduce the time and cost of transactions and thereby contributing towards ease of doing business in India.


Ministry of Corporate Affairs

[Press Release dt. 20-12-2019]

[Source: PIB]

Appointments & TransfersNews

S.O. 3121(E)— In exercise of the powers conferred by sub-section (1) of Section 8 read with sub-section (1) of Section 10 of the Competition Act, 2002 (12 of 2003), the Central Government, vide office order No. Comp-05/9/2018- Comp-MCA dated the 11th July, 2019, appointed Shri Bhagwant Singh Bishnoi (IFS:1983) as Member of the Competition Commission of India, with effect from the 17th July, 2019 (forenoon) for a period of five years, or till he attains the age of 65 years, or until further orders, whichever is earlier.

2. The terms and conditions of his service shall be governed by the Competition Commission of India (Salary, Allowances and other Terms and Conditions of Service of Chairperson and other Members) Rules, 2003.


Ministry of Corporate Affairs

[F. No. 05/9/2018-Comp-MCA]

[Notification dt. 28-08-2019]