COMPETITION ACT 2002

an overview

From

-Rahul Porwal

1 Competition Act 2002

 DISCUSSION POINTS

> INTRODUCTION- WHAT IS THE TERM "COMPETITION" & "COMPETITION

ACT"?

- ORIGIN OF COMPETITION LAW & ITS BACKGROUND IN INDIA

COMPETITION ACT-

V OBJECTIVES
V BENEFITS
V DISTINCTION BETWEEN "MRTP ACT" & "COMPETITION ACT"

LEGAL FRAMEWORK OF COMPETITION LAW IN INDIA

V Prohibition of Abuse of Dominance Position-"SECTION 4"

V Prohibition of Anti-Competitive Agreements-" SECTION 3"-CARTELS
V Regulation of Acquisitions, Mergers & Combinations-" SECTION 5 & 6"
V Mandates Competition Advocacy-"SECTION 49"

> PROCUREMENT AND BID RIGGING

> COMPETITION COMMISSION OF INDIA (CCI) —

V ITS ESTABLISHMENT &COMPOSTION

V ROLE / FUNCTIONS
V POWERS & DUTIES
V IMPACT ON CONSUMERS AND ECONOMY
V INQUIRY IN COMMISSION
V REMEDIES AND PENALTIES UNDER THE COMPETITION COMMISSION OF
INDIA

COMPETITION APPELLATE TRIBUNAL (COMPAT)

> LANDMARK DECISIONS

- CONCLUSION

2 Competition Act 2002

 PROJECT REPORT

Topic: Competition Act, 2002

Name of the Trainee: Rahul Porwal
Registration Number: 440119513/02/2014

Name of the Firm (Trainer): M/s. Mehta and Mehta, Company Secretaries

Name of the Company Secretary: Ms. Dipti Mehta, Partner

M/s. Mehta and Mehta, Company Secretaries

Signature and Stamp:

 INTRODUCTION —WHAT IS COMPETITION & COMPETITION ACT?

4a,n :N'fl,a JET AiRWAYS .

A STAR AWANCE MEMBER
WE BEAT OUR COMPETITION. P401 YOU.

t'iheMt1e fetwe.

> Competition refers to a situation in a market place in which firms/entities or

sellers independently strive for the patronage of buyers in order to achieve a
particular business objective such as profits, sales, market share etc.

> Competition is not an end unto itself rather a means to achieve economic efficiency
and welfare objectives.

> Free and fair competition is one of the pillars of an efficient market economy.
Therefore competition has become a driving force in the global economy.

Competition Act 2002

 Indian economy is on a high growth path. In recent years, the Indian economy has
been one of the strongest performers in the world. However, the full growth
potential of the economy remains yet to be realized.

Infusion of greater degree of competition can play a catalytic role in unlocking the
fuller growth potential in many critical areas of the economy which hitherto has
been held back by restriction on competition in various forms.

UK White paper on World Class Competition Regime clearly brings out the
importance of competition in an increasingly innovative and globalized economy.
Vigorous competition between firms is the lifeblood of strong and effective markets.

Competition helps consumers get a good deal. It encourages firms to innovate by

reducing slack, putting downward pressure on costs and providing incentives for
the efficient organization of production.

> The basic purpose of Competition- Policy and law is to preserve and promote
competition as a means of ensuring efficient allocation of resources in an economy.

> Competition policy typically has two elements: one is a set of policies that enhance
competition in local and national markets. The second element is legislation
designed to prevent anti-competitive business practices with minimal government
intervention, i.e., a competition law. Competition law by itself cannot produce or
ensure competition in the market unless this is facilitated by appropriate
Government policies. On the other hand, Government policies without a law to
enforce such policies without a law to enforce such policies and prevent competition
malpractices would also be incomplete.

COMPETITION ACT. 2002

> As an extension of the economic reform process and emergence of modern

government system, the Govt. has set up various statutory bodies for enforcing
Competition Act 2002

PA
 rules, regulations and providing a level playing field in numerous sectors of the
economy. Therefore the present Indian economy may be characterized as a
regulated market economy which has various sectoral regulators.

In order to eliminate practices having adverse effect on Competition;

V Promote and sustain competition,
V Protect interests of consumers and to ensure freedom of trade in

India, the Competition Act, 2002 was enacted paving way for the
establishment of the Competition Commission of India (CCI), the
institutional framework to support healthy and fair competition.

This Act moved away from the earlier emphasis of curbing monopolies to a more
particular and directed approach towards promoting competition and thereby
increasing efficiency, innovation and competitiveness.
> The Competition Act provides formal and legal framework for ensuring competition
and contain following ingredients:-

V First, it prohibits all anti-competitive agreements at horizontal and vertical level

which restricts competition and cause consumer harm by way of allocating
markets, limiting production, distribution of goods and services and fixing
prices higher than normal.

V Second, Competition law regulates the abusive behavior of a dominant firm who
may set unfair and discriminatory conditions, distort competitive structure of
market and makes consumers accept its terms and conditions.

V Third, to safeguard competitive markets, the Competition law regulates the

mergers and acquisitions of large corporations.

Competition Act 2002

 I
.'

ORIGIN OF COMPETITION LAW & ITS BACKGROUND IN INDIA

The concept of monopoly is quite ancient and can be traced back to the Indian and Roman
civilizations.

Kautilya's Arthashastra, deals with statecraft and economic policy. It does not
distinguish between the wealth of the sovereign and that of his subjects. It also
illustrates how hoarders were severely punished.

Under the Roman Empire, the business practices of market traders, guilds and
governments have always been subject to scrutiny, and sometimes faced severe
sanctions.

> The first traceable event of origin of competition law can be regarded as the book of
"Wealth of Nations" by Adam Smith where he gave the metaphor of ,,the invisible
hands.0

BACKGROUND OF COMPETITION ACT IN INDIA

6 Competition Act 2002

 > Back to Ancient India- Cartelization finds mention in Arthashastra, Kautilya.

In modern period, Monopolies and Restrictive Trade Practices Act was enacted in
1969 to;

a) Prevent the concentration of economic power.

b) Provide for the control of monopolies

c) Prohibit monopolistic and restrictive trade practices.

ECONOMIC REFORMS OF 1991

Post 1991 policy of Liberalization; Privatization and Globalization introduced.

> MRTP Act was found inadequate to meet the challenges of a modern globalize
economy.

> Government of India in October 1999 appointed a high level Committee on

Competition Policy and Law (the Raghavan Committee) to advice on the competition
law in consonance with international developments.

JOURNEY OF COMPETITION LAW IN INDIA

During GATT negotiations in 1947, limited international competition obligations

were proposed and with the creation of WTO in 1995 cross-border competition
issues on a sector specific basis were discussed.

> During this period the WTO took up the examination of the interaction between
trade and competition policy in 1997 which raised interest in several countries.

' Competition Act 2002

 Several economies adopted competition laws as a sequel to their market oriented
economic reforms process.

- As a result many countries have been facing pressure to draft new and effective
competition laws. This necessitated the drafting of competition law in UK, India and
other countries.

- Some of these countries also adopted sector-specific regulatory laws (in telecom,
electricity, financial services, etc.) after these sectors had been opened up for private
players.

- This upsurge in interest in competition and regulatory laws in many economies

reflects the substantial changes that have been taking place in their economic
governance system.

First and foremost step in the direction of having a competition policy in India is
said to have taken in pursuance to WTOs Singapore Ministerial declaration in 1996.

An expert group was set up by the Union Ministry of Commerce in Oct, 1997 to
study issues relating to the interaction, including anti-competitive practices and the
effect of mergers and amalgamation on competition.

> Expert Group Report suggested in Jan, 1999 the enactment of competition law and
recommended harmonization of competition principles, competition policy and
competition law enforcement efforts.

> The Finance Minister of India in his budget speech on 27th Feb, 1999 stated that the
MRTP Act has become obsolete in the light of international economic developments
and there is a need to shift our focus from curbing monopolies to promoting
competition.

8.1 Competition Act 2002

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1sE9
COMPETITION ACT. 2002

Acting on the report of the Committee, the Government of India passed the
Competition Act in the year 2002; to which the President accorded assent in 2003.
It was subsequently amended by the Competition (Amendment) Act, 2007.

PREAMBLE OF COMPETITION ACT, 2002

To prevent practices having adverse effect on competition

To promote and sustain competition in markets
To protect the interests of consumers
To ensure freedom of trade carried on by other participants in markets in
India.

OBJECTIVES OF COMPETITION LAW

Competition is an essential ingredient of a liberalized economy. It is a powerful instrument

to help in achieving the macro-economic policy goals of the country. It is the key to attain
Allocative, productive and dynamic efficiencies, which are important for maximizing the
overall welfare of society.

Increased competition can improve country's economic performance, open business

opportunities to its citizens and reduce the cost of goods and services throughout the
economy.

The prime objectives of the Competition Act are as follows:-

> Ensure fair and healthy competition in the market.

> Faster and inclusive growth: - Allocative, Productive, Dynamic efficiency. To achieve
all three of these efficiencies at the same time is the goal of the Competition Law.

Competition Act 2002

 - Competition law believes in the premise that the unrestrained interaction of the
competitive forces in the market will yield the best allocation of economic
resources, lower prices; improve quality and maximum material progress for the
citizens.

'- Thus, the principal objective of the Competition Law is to make the market
economy work better by stopping vested interests from obstructing markets. The
purpose, therefore, is to maintain and protect the competitive process.

.- The benefits of competition for economic growth and consumer welfare are well
recognized and therefore, strict enforcement of competition law is a big challenge
for any competition authorities.

The benefits of competition work through the economy by enhancing allocative, productive
and dynamic efficiency, and thereby benefit the consumers, businesses and the
government.

Competition is the fourth corner-stone of the public policy framework, along with
the monetary, fiscal and trade policies. The benefits of competition to;
-Consumers
-Businesses
-Government (Central & State)

10 Competition Act 2002

 BENEFITS OF COIWPETITION

• Wider choice of goods, services and suppliers.

• Better quality and improved value for money

• Level playing field; redressal against anti-

competitive practices
BUSt NESSES • Competitively priced inputs
• Greater productivity and ability to compete in
global markets

• Optimal realization from sale of assets

GOVERN MENTS
• Savings of public money in procurement
(Central & State) • Enhanced availability of resources for social sector

Competition
Act, 2002

11 Competition Act 2002

 DISTINCTION BETWEEN

MRTP ACT. 1969 COMPETITION AcT,2 002

Based on the pre-reforms scenario Based on the post-reforms scenario

Based on size as a factor Based on structure as a factor

Competition offences Competition offences explicit and defined

implicit or not defined

Complex in arrangement and language Simple in arrangement and language and

easily comprehensible

14 per se offences negating the principles 4 per se offences and all the rest subjected
of natural justice to rule of reason.

Frowns upon dominance Frowns upon abuse of dominance

Registration of agreements compulsory No requirement of registration

agreements

No combinations regulation Combinations regulated beyond a high

threshold limit.

Competition Commission appointed by the Competition Commission selected by

Government Collegium (search committee)

10 Very little administrative and financial Relatively more autonomy for the
autonomy for the Competition Commission Competition Commission

11 No competition advocacy role for the Competition Commission has competition

Competition Commission advocacy role

12 No penalties for offences Penalties for offences

13 Reactive and rigid Proactive and flexible

14 Unfair trade practices covered Unfair trade practices omitted (consumer

fora will deal with them

12 Competition Act 2002 0

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 t_,__ C.d .

LEGAL FRAMEWORK OF COMPETITION LAW IN INDIA

I
PROHIBITS ABUSE OF DOMINANCE POSITION-SECTION 4

What is Dominance?
-Position of strength enjoyed by an enterprise in the relevant market which
enables it to:
1) Operate independently of competitive forces prevailing in relevant
market.
2) Affect its competitors or consumers or the relevant market in its favor.

.- It involves two distinct parts:

1) Determining whether firm has dominant position
2) Examining whether conduct of the dominant firm falls within the
definition of abuse.

- Stages in Dominance

i) Determining the relevant market

ii) Determining whether the firm is dominant in that relevant market.
iii) Examining whether conduct of the dominant firm falls within the
definition of abuse.

14 I Competition Act 2002

'- Factors To Be Considered In Determining Dominance
1) Market share of enterprise
2) Size and resources of enterprise
3) Size and importance of competitors
4) Commercial advantage of enterprise over competitors.
5) Vertical Integration
6) Dependence of consumers
7) Dominant position as a result of a statue
8) Entry Barriers
9) Social obligations and costs
10) Market structure and size of market.

'- Elements of Dominance

V It is the ability to prevent effective competition and ability to behave
independently of two sets of market actors, namely:
• Competitors
• Consumers

'- Provisions on Abuse of Dominance-Section 4 of Competition Act, 2002

V As per Section 4 of Indian Competition Act, enterprises or groups are

prohibited from abusing their dominant position.
V The Act defines dominant position as a position of strength, enjoyed by an
enterprise, in the relevant market in India, which enables it to.
V Operate independently of the competitive forces prevailing in the relevant
market.

Competition Act 2002

 dl,

V' Affect its competitors or consumers or the relevant market in its favor.
v' Dominance per se is not bad. However, its abuse has been considered bad.

Abuse of Dominance
V' Directly or indirectly, imposes unfair or discriminatory

Conditions in purchase or sale of goods or services;

Prices in purchase or sale of goods or services

fly' Limits or restricts

• Production of goods or provision of services or market;
> Technical or scientific development relating to gods or services to the
prejudice of customers;
Indulges in practice or practices resulting in denial of market access in
any manner; or
> Makes 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; or
> Uses its dominant position in one relevant market to enter into, or
protect, other relevant market.

I Prohibits Anti-Competitive Agreements-Section 3

> Section 3 provides that no enterprise or person shall enter into any
agreement in respect of production, supply, distribution, storage
acquisition or control of goods or provision of services, which causes
or is likely to cause an appreciable adverse effect on competition
within India.

16 Competition Act 2002

1'
s" Anti-Competitive Agreement-An agreement entered into between
competitors which:
Directly or indirectly determines purchase or sale prices;
'- Limits or controls production, supply, markets technical development,
investment or provision of services;
#- Shares the market or source of production or provision of services by
way of allocation of geographical area of market, or type of goods or
services, or number of customers in the market or any other similar
way;
> Directly or indirectly results in bid rigging or collusive bidding shall
be presumed to have an appreciable adverse effect on competition.

v' Exemption for Copyrights, Patents, Exports etc.

The provisions relating to anti-competitive agreements, as contained
in Section 3 and discussed in the aforesaid paragraphs, do not apply
to:
The right of any person to restrain any infringement of or to impose
reasonable conditions, as may be necessary for protecting any of his
rights which have been or may be conferred upon him under-

'Copyrights' under the Copyright Act, 1957;

'Patent' or 'Exclusive right' granted under the Patent Act, 1970
'Design' registered under the Designs Act, 2000.
'Layout-design' registered under the semiconductor integrated
circuits layout design act, 2000.
The right of any person to export goods from India to the
extent to which the agreements relates exclusively to the
production, supply, distribution or control of goods
provision of services for such export [Section 3(5f 2

17 Competition Act 2002

 s" Adverse Effect on Competition
Tie-in agreement
Exclusive Supply agreement
Exclusive distribution agreement
Refusal to deal
Resale Price maintenance

v' CARTELS

Cartels are agreements between enterprises, persons, a government

department and association of persons not to compete on price,
product, services or customers.
Most pernicious form of anti- competitive practice which results in
higher prices, poor quality and limited choice for goods or / and
services.
International Cartel — Import Cartel and Export Cartel
Conditions conducive for formation of cartel

18 Competition Act 2002

 High concentration
High entry and exit barriers
Homogeneity
Dependence of the consumers on a product

Regulates Acquisitions, Mergers & Combinations-Sec 5 & 6

COMBINATION COVERS:
Merger & Amalgamation
Acquisition
Acquiring control
Any combination which causes or is likely to cause appreciable
adverse effect on competition (AAEC) in markets in India is
void.

'- Meaning of Combination (Section 5)

The acquisition of one or more enterprises by one or more
persons or merger or amalgamation of enterprises shall be

19 Competition Act 2002

 treated as 'Combination' of such enterprises & persons or
enterprises in following cases:

• Acquisition by Large Enterprises

• Acquisition by Group
• Acquisition of Enterprise having similar Goods/Services
• Acquisition Enterprise having Similar goods/services by
a Group
• Merger of Enterprises
• Merger in Group Company

Regulation of Combination (Section 6

Section 6(1) prohibits any person or enterprise to enter into a
combinations which causes or is likely to cause an appreciable
adverse effect on competition within the relevant market in
India and such a combination shall be void [5ection6(1)}.
Exemption: Any person or enterprise, who or which proposes
to enter into a combination, may, at his or its option, give
notice to the Competition Commission of India (hereinafter
referred to as CCI of India) and the fee which may be
determined by regulations, disclosing the details of the
proposed combination, within 7 days of-

• Approval of the proposal relating to merger or

amalgamation referred to in Section 5©, by the Board of
Directors of the enterprises concerned with such
merger or amalgamation, as the case may be.
• Execution of any agreement or other document for
acquisition referred to in Section 5(a) or acquiring of
control referred to in Section 5(b) [Section 6(2)]

20 Competition Act 2002

,
V WHY REGULATE MERGERS?
Mergers are likely to have adverse effect on competition
• Unilateral effects: Due to increase in market power of the
merged entity. Higher concentration is associated with higher
market power, which enables post-merger prices to move up,
in spite of efficiency gains of merger.
• "A Merger may be profitable even in the absence of efficiency
gains".
• Coordinated effects: Merger may raise the prospects of
coordinated effects arising in which a reduction in the number
of industry participants increases the threat of tacit
coordination.

• Avoid Heavy Social Cost

• De-merger could have high social and economic costs

• Collusive enterprises could escape punishment by resorting to
merger, thereby defeating purpose of law.
• Mergers then would have to be dealt with as agreements
under Sec.3

• Market power from merger not same as that gained through fair
competition/sheer efficiency in operation. Sec 4 does not suffice.

• Mergei' involves willful acquisition of market power as distinct

from growth or development on account of superior
product, business acumen or historical accident.

• When two enterprises combine to increase their profitability

the source of profitability may be increased 'market power'
and not increased 'efficiency'.

• Conglomerate mergers can harm competition throu ent

to remove potential competitors.

21 Competition Act 2002

 • Conglomerate mergers in neighboring markets (markets for
substitutes or complements) result in leveraging problems
like: Tying, Pure bundling, Financial leverage and predation
• Market extension/product extension mergers.

While horizontal merger works through higher market power,

vertical mergers give rise to market fore-closure.
For example, depriving rival producer of a distribution
network if a producer merger with a retail chain (Case of
vertical integration)
"Foreclosure of a share of the market otherwise open to
competitors" e.g. the acquisition of ready mixed concrete firms
by cement suppliers was said to foreclose the market for
cement to non-integrated cement suppliers.
By raising rival's costs, through: i) Input fore-closure ii)
Customer fore-closure

Anti-competitive issues raised by vertical mergers are similar to

exclusive dealing:
VERTICAL MERGER: ANTI-COMPETITIVE THEORIES:
i) Vertical mergers may put potential competition at a
disadvantage by raising the cost of entry (entry deterrence)
ii) A Vertical merger may put existing competitors at a
disadvantage by raising their costs (Raising rival's costs) (e.g.
by locking up rival's necessary inputs).

IMandates COMPETITION ADVOCACY-Section 49

ADVOCACY FUNCTIONS The major tasks for the Commission under

advocacy functions were to:
Spread awareness about Competition Act and the CCI among
various stakeholders.
Reach out to all the stakeholders including the consumers, the
Government departments, industry organizations etc. through
various Seminars, Workshops and Symposiums to make them
aware of the need and beneficial role of competition
22 Competition Act 2002
 • Sensitize the stake-holders about nuances of competition law,
to facilitate competition audit of their respective laws on
different subjects.
• Take confidence building measures among business
enterprises and other stakeholders associated with
competition.
• Take up the issues of National Competition Policy.

..'- Competition Advocacy:-

• The Central Government may, including review of laws related to

competition in formulating a policy on competition as the case may
be, make a reference to the Commission for its opinion on possible
effect of such policy on competition and on the receipt of such a
reference, the Commission shall, within sixty days of making such
reference, give its opinion to the Central Government, or the State
Government, as the case may be, which may thereafter take further
action as it deems fit.

• The opinion given by the Commission shall not be binding upon the
Central Government or the State Government, as the case may be in
formulating such policy.
• The Commission shall take suitable measures for the promotion of
competition advocacy, creating awareness and imparting training
L about competition issues.

> Under the ambit of section 2(h), government ministries and

departments engaged in commercial activities in any manner are
covered (exception sovereign functions of Govt.
Ministries/Departments, Defence, Space, Atomic Energy, Currency).

" Bid-rigging

Bid-rigging occurs when two or more persons agree that, in

response to a call for bids or tenders, one or mor

23 Competition Act 2002

 dl.

not submit a bid;

withdraw a bid; or

Submit a bid arrived at by agreement.

- The offence of bid-rigging is committed only if the person requesting

the bids or tenders is not informed beforehand about the agreement

made between parties.

- Bid-rigging is a serious crime that eliminates competition among your

suppliers, increases your costs, and harms your ability to compete.

Whether this occurs on government projects or in the private sector,

these increased costs are ultimately passed on to the public.

> Bid-rigging typically involves competitors agreeing to artificially

increase the prices of goods and/orservices offered in bids to potential

customers.

Detecting Bid-rigging

While bid-rigging schemes are limited only by the imagination

of those involved, there are four common types of agreements

that result in a pre-selected supplier winning the contract:

Cover bidding gives the impression of competitive bidding, but,

in reality, suppliers agree to submit token bids that are usually

too high.

Bid suppression or withdrawal is an agreement among

suppliers either to abstain from bidding or to withdraw bids.

Bid rotation is a process whereby the preselected supplier

submits the lowest bid on a systematic or rotating basis.

24 Competition Act 2002

 Market division is an agreement among suppliers not to

compete in designated geographic regions or for specific

customers.

> There are several common red flags that could suggest that a call for
bids or tenders may be a target of bid-rigging:
> There are few bidders in the market that offer the good or service.
Two or more proposals contain similar handwriting, typos, or
mathematical errors.
Competitors' bids are received together
> Over a series of awards, one bidder always wins, regardless of
competition.

v' You Can Discourage Bid-rigging

> The Competition Bureau developed a document called "Certificate of
Independent Bid Determination" for use by persons calling for bids or
tenders. The certificate can deter bid-rigging by requiring bidders to
disclose all material facts about any communications and arrangements
they have entered into with competitors regarding the call for tenders.

v' Prevention Tips

Establish a bidding pool and know your suppliers and their market

prices.

Tender specifications should:

require disclosure regarding potential subcontractors and

their pricing;

allow for substitute products whenever possible;

avoid preferential treatment for a certain class of suppliers;

25 Competition Act 2002

 • avoid predictability; and

• avoid splitting contracts between suppliers with identical bids.

• avoid splitting contracts between suppliers with identical bids.

If You Suspect Bid-rigging

V If you suspect you are victims of bid-rigging or have information about a bid-
rigging scheme, contact the Bureau.
V The Bureau conducts its investigations in private and, subject to certain
exceptions, keeps the identity of the source and the information provided,
confidential.

If You Are Involved In Bid-rigging

V If you have been involved in bid-rigging, you could be eligible for immunity
from prosecution if you are first to report the offence to the Bureau.
Others who self-report early in the Bureau's investigation may also qualify
for lenient treatment. For further information on our Immunity and
Leniency Programs, visit our webs ite.

Possible Penalties

V Bid-rigging is a criminal offence under Canada's Competition Act. Firms and

individuals convicted of bid-rigging face fines at the discretion of the court
or imprisonment for up to 14 years, or both.
V The Competition Bureau, as an independent law enforcement agency,
ensures that Canadian businesses and consumers prosper in a competitive
and innovative marketplace.

26 Competition Act 2002

 V' Headed by the Commissioner of Competition, the Bureau is responsible for
the administration and enforcement of the Competition Act,
the Consumer Packaging and Labeling Act, the Textile Labeling Act and
the Precious Metals Marking Act.

Legal Actions

We have the ability to refer criminal matters to the Director of Public

Prosecutions, who then decides whether to prosecute before the courts.
We also have the power to bring civil matters before the Competition
Tribunal or the courts, depending on the conduct in question and
applicable legal provisions.

Written Opinions

v" The Commissioner has the discretion to provide a binding written opinion
to businesses seeking to comply with the Competition Act. Any person may
request written opinions on whether proposed business plans and
practices could raise concerns under the Act.

27 Competition Act 2002

 6__..__ . bà.

Competition Commission of India

COMPETITION COMISSION OF INDIA

Ashok Kumar Gupta, a 1981 Tamil Nadu cadre lAS officer, has been appointed as new
chairperson of Competition Commission of India (CCI). His tenure as the CCI Chairman
will be till October 25, 2022, i.e. when attains the age of 65 years, or until further orders,
whichever is earlier. He was succeed acting chairperson Sudhir Mittal.

Competition enforcement scenario in World

s/
US Sherman Act, 1890 (Canada had introduced anti-trust laws in 1889)

" European Union introduced Competition Laws with Treaty of Rome in

1957

v' Adoption of Competition Laws since 1991

28 Competition Act 2002

 V' Today around 120 countries have introduced competition laws
Establishment of Commission

V' Central Government has appointed CCI as a governing Body.

V' 2) The commission shall be a body corporate by the name aforesaid having
perpetual succession and a common seal with power, subject to the provisions of
this Act, to acquire, hold and dispose of property, both movable and immovable.
v' 3) The head office of the Commission shall be at such place as the Central
Government may decide from time to time (New Delhi)
" 4) CCI (Competition commission of India) may also assign office in other places in
India.

Composition of Commission

v' The Chairperson and other Members of the Commission shall be appointed by the
Central Government.
v' 2) Selection Committee includes Chief Justice of India or his nominee, Secretary in
the Ministry of Corporate Affairs

Role of Competition Commission of India: The main role/objective of the

Commission is to promote and sustain competition in the market and to make
market more responsive to consumer preferences. To achieve its objectives, the
Competition Commission of India endeavors to do the following:-

Make the markets work for the benefit and welfare of consumers.

> Ensure fair and healthy competition in economic activities in the

country for faster and inclusive growth and development of economy.
> Implement competition policies with an aim to effectuate the most
efficient utilization of economic resources.
> Develop and nurture effective relations and interactions with.seçoral
regulators laws in tandem with the Competition Law.

29 Competition Act 2002

K11
 > Effectively carry out competition advocacy and spread the information
on benefits of competition among all stakeholders to establish and
nurture competition culture in Indian economy.

Duties, Power. Functions and Penalties of Competition Commission of India [Section

181

FUNCTIONS OF CCI

Functions

ce dvocacy

Anti- Combinations
competitive Abuse of
Dominance Rejj ulations-
Agreements-
—Sec 4 Sec s & 6
Sec 3

POWER/FUNCTIONS

• It eliminate practices having adverse effect on competition

• It promote and sustain competition
• It protect the interest of customers
• It ensures freedom of trade carried by other participants, in markets in India.
• The commission may inquire into any alleged contravention of the provisions
accompanied by such fee as may be determined by regulations
• It includes Power to award compensation (Sec 34)
• It includes power of commission to regulate its own procedure

30 Competition Act 2002

v' PUTIES
• Creation of barriers to new entrants in the market driving existing
competitors out of the market foreclosure of competition by hindering
entry into the market accrual of benefits to consumers.
• Improvements in production or distribution of goods or provision of
services.
• Promotion of technical, scientific and economic development by
means of production or distribution of goods or provision of services.
• The commission shall, while inquiring whether an enterprise enjoys a
dominant position.
• Economic Power/market share/size/resources, Importance of the
enterprise; vertical integration/ sale or service network of such
enterprises; dependence of consumers on the enterprise.
• Countervailing buying power; market structure and size of market;
social obligations, social costs.
• Relative advantage, by the way of the contribution to the economic
development, by the enterprise enjoying a dominant position having
or likely to have an appreciable adverse effect on competition; any
other factor which the Commission may consider relevant for the
inquiry.

v' PENALTIES

> If any person, without reasonable clause, fails to comply with the
orders or directions of the act, he shall be punishable with fine which
may extend to rupees 1 Lac for each day during which such non-
compliance occurs, subject to a maximum of rupees 10 Cr, as the
Commission may determine.

31 Competition Act 2002

 ' If any person does not comply with the orders or directions issued, or
fails to pay the fine imposed be punishable with imprisonment for a
term which may extend to 3 years, or with fine which may extend to
rupees 25 CR.

Impact on consumers and economy

V' The Competition Commission of India is committed to promote and sustain
effective competition in the market. It is widely known fact that competition
has proved to be powerful tool to secure proper and efficient use of scarce
resources, reduce cost, eliminate supply bottlenecks, spur innovations and
also offer wide choices to the consumers to have fair value of their money.

v' The rigorous application of Competition Act is the best way to enhance
consumer welfare. Competition in markets is an engine for the economic
growth of the country. Internationally competition in the markets has been
recognized as pivot for the economic wellbeing of consumer and for making a
good savings to the exchequer.

V' It accelerates the pace of increase in GDP, creates employment opportunities

and increase per capita income thereby acting as an essential tool for
alleviation of poverty.

1' During the period, the CCI has received numerous matters alleging violation
of Section 3 and 4 of the Act, relating to anti-competitive agreements and
abuse of dominance in diverse sectors such as insurance, travel, automobile,
manufacture, real estate, pharmaceuticals, financial sector and entertainment
and passed financial orders on them and imposing penalties wherever
warranted thereby correcting the market distortions for extension of
benefits to consumer.

32 Competition Act 2002

 v' With its order cutting across various sectors of economy, the Commission has
been successful in making its pressure felt across the economy. It has been
able to make a credible deterrence in the process of building up its images as
a competition watchdog.

V' Enterprise knowingly or unknowingly indulging into anti-competitive

practices has been put into introspection mode to correct their procedures
and practices so that they are in tandem with the provisions of the
Competition Act, 2002.

V' Quantum of penalty prescribed in the Act has forced them to develop
voluntary Competition Compliance Program (CCP) so as to prevent
themselves from the brunt of falling on the wrong side of the law.

1' All this has impacted the consumers in a positive & to some extent has
initiated the process of bringing that situation in the economy where
"Consumer is King".

JNQUIRY IN COMMISSION
Steps of inquiry

> The Commission is empowered to inquire into cases of anti-competitive agreements

and cartels; either on its own motion or on receipt of information or on reference
made to it by the Central Government or State Govt. or statutory authority.
In case the Commission is convinced that prima fade case exists, it shall direct the
Director General to investigate and furnish report.

> The Competition Commission is focusing on aggressive enforcement of Competition

Act and sending strong signals to economic actors to follow the mandate of!

Competition Act 2002

 However, before passing any adverse sanction including a direction to "cease and
desist"from the anti-competitive conduct including imposition of penalty on the
delinquent, there is a mandate on the CCI to institute an Inquiry in relation to
alleged infringement of Sections 3 & 4 and after 'Inquiry' arrive at a finding that the
parties have in fact contravened the provisions of the Act.

COMPETITON APPELLATE TRIBUNAL (COMPAT)

To hear and dispose of appeals against any direction issued or decision made or
order passed by the Commission

V To adjudicate on claim for compensation that may arise from the findings of the
Commission or the orders of the Appellate Tribunal in an appeal against any finding
of the Commission and pass orders for the recovery of compensation under

V Very appeal shall be filed within a period of 60 days from the date on which a
copy of the direction or decision or order made by the Commission is received by
the Central Government or the State Government or a local authority or enterprise
accompanied by such fee as may be prescribed

k Condemnation of delay

LANDMARK DECISIONS

M/s Fast Track Call Cab Pvt. Ltd. and Meru Travel Solutions Pvt. Ltd. v. ANI
Technologies Pvt. Ltd. ("Ola")

INTRODUCTION

The Competition Commission of India ("Commission") in its recent order in Fast Track Call
Cab Pvt. Ltd. ("Informant I") and Meru Travel Solutions Pvt. Ltd. ("Informant II") v. ANI
Technologies Pvt. Ltd. ("Ola") held that Ola was not in a dominant position in the market of
"radio taxi services in Bengaluru" and dismissed the information filed alleging abuse of
dominant position by Ola in contravention of the Competition Act, 2002 ("Act") (Informant
I and Informant II shall hereinafter shall together be referred to as "Informants").

The Commission juxtaposed the rise of Ola with that of Uber India Pvt. Ltd. ("Uber") to
conclude that with the steady rise in Uber's market share, Ola could not be determined to
be in a dominant position in the relevant market. The Commission also not-...t the
Competition Act 2002
growth of Ola had to be analyzed against the impressive growth in size of the relevant
market itself (by 1900% in terms of number of trips between June 2012 and September
2015).

In 2015, Mega Cabs and Meru Cabs filed information against Ola and Uber, respectively,
alleging abuse of dominance in New Delhi. The Commission, in those cases, held that Uber
and Ola were not in a dominant position in the relevant market of "radio taxi services in
Delhi". The matter came up for appeal before the Competition Appellate Tribunal
("COMPAT") where similar allegations were made by the informants that Ola has been able
to engage in predatory pricing because of access to generous funding which has acted as an
entry barrier for new players and has restricted ability of existing players to effectively
compete with Ola. COMPAT had found infirmities in the investigation and directed the
Commission to conduct a fresh probe in the matter. Thereafter, the Supreme Court of India
imposed a stay on the carrying out a fresh probe.

BACKGROUND FACTS

Informants are engaged in the business of providing radio taxi services in certain cities in
South India under the brand names "Fast Track" and "Meru". Informants had filed separate
information under Section 19 (1) (a) of the Act alleging that Ola had abused its dominant
position by engaging in predatory pricing in the relevant market by offering heavy
discounts to passengers and incentives to cab drivers, in contravention of Section 4 (2) (a)
(ii) of the Act. Informants alleged that the fact that Ola controlled over 50% of a highly
concentrated market, demonstrated Ola's dominance. The Informants also alleged that
there were considerable entry barriers present which made it difficult for a new player to
effectively compete. Consistent payment of high incentives along with exclusivity clauses in
agreements with drivers allowed Ola to thwart effective competition, lock-in drivers and
create a wide base of customers.

Additionally, the Informants alleged that presence of an extensive network of Ola across
the nation has acted as a sufficient detriment to any countervailing buying power available
with consumers. It was alleged that the presence of a large network of Ola has restricted
the power of consumers to negotiate and substantially affect the service provider by
shifting to a competing network.

Competition Act 2002

 (___ c_...
Based on the high market share of Up, the Commission was of the prima facie view that Ola
held a dominant position in the relevant market of "Radio Taxi services in the city of
Bengaluru" and directed the Director General ("DG") to conduct a detailed investigation
into the matter.

FINDINGS OF THE DG

The DG recognized the different business models prevailing in the radio taxi service
industry i.e. asset-owned model, aggregator model and hybrid model. It also recognized
that while Ola functioned under the aggregator model, its services are functionally
substitutable with those provided by other taxis operating under these different business
models.

Accordingly, the DG concluded that the relevant product market would be the "market for
radio taxi services" and the relevant geographic market would be the city of Bengaluru.

The DG compared the number of trips / rides undertaken by different players in the
relevant market between 2012 and 2016 to observe that while Ola did grow at a meeker
rate of 63% between January and September of 2015, Uber's trip size registered a growth
of 12 00% in the same period. It noted that the rise of Uber as a healthy competitor defeated
the argument for presence of entry barriers. The DG concluded that Ola was not in a
dominant position given these facts.

JUDGMENT

The Commission recognized that the services offered by Ola and other radio taxi service
providers were functionally substitutable and agreed with the DG on determining the
relevant market. The Commission observed that mere adoption of a new business model to
provide the same goods/services would not create a distinct relevant product market.

Commission expanded the scope of its enquiry and concluded that the relevant market was
volatile throughout the investigation period and saw no steady trends to be able to impinge
dominance on a single player. Informant I had objected to the investigation being delayed
as a result of the Commission's direction to investigate the information filed by Informant II
36 Competition Act 2002

w u
along with it, considering the similarity in allegations made. The Commission observed that
the proceedings before the Commission under the Act were in rem and not in personam. It
observed that allegations under an information do not restrict the scope of examination for
the Commission nor do they restrict it from examining every aspect of a dynamic market.

The Commission rejected the Informants' contention that control of more than 50% of the
relevant market by Ola was sufficient to determine test of dominance. It held that the test
enshrined under Section 19 (4)7 of the Act has to be met to determine dominance and such
a numerical threshold cannot be accepted as a valid test under the Act. It also noted the
unique and volatile nature of an industry such as this, where technological innovations are
causing significant disruptions making it all the more difficult to depend on absolute
numerical figures. The Commission compared the rise of Ola with that of its biggest
competitor in the relevant market, Uber, observing that Uber was able to enter the market
belatedly and rapidly expand.

Although the Commission held that Ola was not in a dominant position, it made certain
observations on its pricing strategies. The Commission rejected the contention of the
Informants that ease of access to wide pooi of funding exclusively with Ola acted as a key
constraint on smaller competitors and new entrants from effectively competing in the
relevant market. The Commission observed that in an innovative technology industry such
as this, a level playing field in access to funding would be key to determine the existence of
an entry barrier as opposed to a mere high requirement of capital.

On the basis of an analysis of pricing strategies of the players in the market, the
Commission concluded that Ola's alleged "aggressive pricing strategy" was not an
independent strategic choice but was rather a reaction to Uber's aggressive pricing which
was itself indicative of the competitive forces already present in the relevant market.

Informants had argued that in the alternative, both Ola and Uber ought to be held to be
simultaneously dominant in the relevant market. Informants relied on Section 27 (b)8 of
the Act to contend that more than one enterprise can be considered to be in a dominant
position. The Commission rejected this contention and noted that literal interpretation of
the law must be avoided when it lends itself to absurdity and held that the particular
language in Section 27 (b) was with respect to anti-competitive agreements under Section

Competition Act 2002

 t...,.... (.

3 and not Section 4 of the Act. The Commission held that two enterprises cannot be held to
be in a dominant position at the same time.

ANALYSIS

The Commission recognized the technological advances in the market and held that mere
adoption of a new business model powered by new technology may not distinguish it from
traditional players in the relevant market.

It has recognized that access to generous funding from private equity players in the market
was not unequal and was an insufficient ground by itself to establish that it allowed Ola to
function outside the constraints of a competitive market. The Commission took note that
technology start-ups in India which have access to investments from various investors to
hold that there existed a level playing field in access to finance. In fact, it noted that there
existed a fiercely competitive environment in the industry because of the presence of
abundant sources of funding and constant innovation in business and pricing models.

What is interesting to note is that the Commission has erred on the side of caution and
been careful not to meddle in a young industry. It has acknowledged the precarious and
nascent stage at which this new industry lies and has refused to intervene more than
necessary under law.

Entities that practice disruptive technology are more likely to be subjected to intense
scrutiny by regulators and the Commission's observations in this regard are quite
heartening. It is hoped that these observations help guide exercise of powers by
Commission and other regulators in the future.

38 Competition Act 2002

\
 FARIDABAD INDUSTRIES ASSOCIATION VS. M/S ADANI GAS LIMITED

Origin of the case:

Adani Gas Ltd. ('AGL'J is a company engaged in the business of setting up of distribution
network in various cities for supplying natural gas to industrial, commercial and domestic
customers. It would purchase natural gas from GAIL and supply them in the Faridabad
market. The case came up before the Competition Commission of India ('Ccl') based on the
information filled by Faridabad Industries Association ('FIA') alleging contravention of
Section 4 of the Act. FIA is an association of industries whose members consume natural
gas supplied by AGL. The primary allegations against AGL were that AGL was abusing its
dominance in the relevant market of 'supply and distribution of natural gas in Faridabad'
by incorporating unconscionable and one sided terms in the Gas Supply Agreement
('GSA').On this basis they requested the CCI to modify the clauses of GSA, direct AGL to
discontinue such practice and to impose penalties for its acts.

Finding a prima facie case the CCI directed the Director General (DG) to cause an
investigation into the matter. The DG Report concluded that various clauses of the GSA
hinted towards abuse of dominance by AGL.

Reasoning of CCI:

Dominant position as per s. 4, Explanation (a) is a position of strength enjoyed by an

enterprise in the relevant market which allows it to operate independently of competitive
forces. Thus for determining whether an enterprise is in dominant position three enquiries
need to be made, the first what is the relevant market for determination of abuse of
dominant position. Second question is whether AGL was in a dominant position in the
determined relevant market. The final enquiry whether AGL abused its dominant position
by setting unfair terms in GSA.

Competition Act 2002

Relevant Market: Relevant product market has been defined by s. 2(t) as market
comprising of all those products which are regarded as interchangeable or substitute by
the consumers due to their intended use. Thus in the present case such an analysis would
require investigation of industrial consumers and not domestic consumers based on the
intended use and price. Therefore the relevant product market was decided by CCI as
market of supply and distribution of natural gas to industrial consumers. Relevant
Geographic market has been defined as market comprising the area in which conditions of
competition of supply of goods distinctly homogenous which can be distinguished from
neighboring areas. In the present case since Government of Haryana had authorized only
AGL to operate a gas network in Faridabad, Faridabad would be the relevant geographical
market.

Thus the relevant market was held to be market of 'supply and distribution of natural gas
to industrial consumers in Faridabad'.

Dominant Position in the relevant market: Dominance is a position of strength defined in

terms of operating independently of competitive forces in the relevant market. When an
enquiry into dominant position has to be mad the Commission has to keep in regard the
following factors enumerated in s. 19(4) like market share of enterprise, market structure
and size thereof, Countervailing buying power, dependence of consumers on the
enterprise, regulatory entry barriers etc.

CCI observed that AGL had 100% market share due to it being the only enterprise
authorized by Haryana Govt. to operate in the market in Faridabad. Further there were
regulatory barriers in the form of authorization from Petroleum and Natural Gas
Regulatory Board which would provide marketing exclusivity to the product for 3 years.
There was also absence of power in the hands of the buyer to create competition between
potential suppliers which is often known as countervailing buying power. Thus, after taking
into consideration absence of any countervailing buying power, market share thereof as
also the entry barriers, the Commission held AGL to be in dominant position in the defined
relevant market.

Abuse of dominant position

Abuse of dominance has been defined under s. 4(2)(a)(i) to be a situation where the
enterprise in dominant position directly or indirectly imposes unfair or discriminatory
conditions in sale of goods, CCI found the following clauses of the GSA as imposin unfair
conditions and therefore to be an abuse of dominance:
40 Competition Act 2002
Clause on Billing and Payment: This clause provided that an excess payment made by the
buyer gives rise to no liability on part of AGL to reimburse buyer. However in case of
delayed payment, the buyers were liable to pay interest on such rates as may be specified
by AGL. Both these terms were found to be unfair and thence in violation of s. 4(2)(a)(i) of
the Act.

Expiry and Termination: The clause provide that AGL could terminate the contract on
account of failure of buyer to offtake 50% or more of the cumulative Daily Cumulative
Quantity during a period of 45 consecutive days with 30 day prior notice. However the DG
in his report pointed out that in the supply contract between GAIL and AGL, AGL was given
more than 45 days to fulfill its 50% offtake of cumulative Daily Cumulative Quantity. Thus,
it was found unfair that AGL provided lesser time for compliance to its buyers while it
enjoyed longer period for compliance from its supplier GAIL.

Force Majeure Clause: CCI observed that AGL had reserved the right on its sole discretion
to accept/reject the request of the industrial consumers for requesting pardon of non-
payment due to reason of force majeure like temporary shutdown of factory and even in
event of unplanned emergency shut down the buyer would have to make payment of the
Minimum Guaranteed Offtake. Thus, that to the extent AGL had reserved its sole discretion
to accept/reject request of customers for force majeure without any rational basis, and the
clause requesting for minimum payment even in case of emergency shutdown of the gas
plant was found to be unfair condition for sale.

In conclusion the commission issued the following order:

Directing AGL to desist from indulging in such practices and to modify the GSA accordingly.

In pursuance of S. 27(b), imposing a penalty of around Rs. 25.67crore.

This decision can be stated to be a relief to the industries that are often left in the mercy of
the hands of a few suppliers/distributors of raw material. However, AGL has approached
the COMPAT in appeal against the order. COMPAT after hearing AGL on 6th August 2014
has issued notice to the CCI to appear before it.[2] It would be now for the appellate
authority to decide whether the CCI was correct in imposing penalty for abuse of
dominance.

41 Competition Act 2002

Analysis of the order:

This order is a reiteration of the warning that the Commission has consistently been giving
to the suppliers enjoying a dominant position in the market to frame fair Supply
Agreements. One of the first cases of the commission which dealt with the terms of the
supply agreement being violative of S. 4 was Maharashtra State Power Generation Co. Ltd.
v. Coal India Limited. In this case the terms of the Fuel Supply Agreement of non-coking
coal were found to be discriminatory towards public sector power generators as well as old
power generating companies. The court rightly held these terms to be in violation of s.
4(2)(a)(i) because such a conduct would have a serious cascading effect on the entire
economy and would impact the consumers ultimately. Once again Coal India Limited was
fined in an order dated 15.04.20 14 by the CCI for the continuing the unilateral terms in the
Fuel Supply agreement without consulting and evolving a new draft through a bilateral
process in spite of the previous CCI order directing the same. Thus it can be said that this
case is a wakeup call to the Suppliers that the Commission will not take unfair terms in the
Supply Agreements lightly.

Conclusion:

The CCI has been actively involved in checking abuse of dominance under 5. 4 of the
Competition Act, 2002 ('the Act'). Recently on July 3, 2014 it imposed a fine of over Rs. 25
crores on Adani Gas Ltd. for abusing its dominant position in the natural gas supply market.

ANTI-COMPETITIVE AGREEMENTS [Section —3 Cases]

CCI raids United Breweries, Carlsb erg, AB InBev over price-fixing charges

CCI raids United Breweries, Carlsberg, AB InBev over price-fixing charges CCI on October
11, 2018, raided the offices of three beer companies as part of an investigation of price-
fixing allegations. Search and seizure operations were conducted at dawn by CCI at the
offices of India's United Breweries, Denmark's Carlsberg and the world's largest brewer
Anheuser-Busch InBev in at least two cities. CCI has been conducting an antitrust
investigation of the three companies for the past year. The raid was based on the leniency
application filed by one of the cartel members revealing details of the alleged price fixing
under the whistle blower protection offered to cartel members offered by CCI. As per the
information, the raids found email exchanges showing that the companies were fixing
prices.

42 Competition Act 2002

Price parallelism alone not sufficient to prove bid-rigging and cartelization
concludes Supreme Court

By an order dated October 1, 2018, the Hon'ble Supreme Court of India ("SC") held that
whenever there is a situation of oligopsony, parallel pricing simplicitor would not lead to
the conclusion that there was a concerted practice of bid-rigging and cartelization, in
absence of corroborative and credible evidence. The Competition Commission of India
("CCI") had found that some suppliers of Liquefied Petroleum Gas ("LPG") cylinders to the
Indian Oil Corporation Ltd. ("IOCL") had indulged in cartelization, thereby influencing and
rigging the prices, thus, violating Section 3(3)(d) of the Competition Act, 2002.

The CCI concluded that there was collusive bidding, based on analysis of the bids for each
State, and found that all 50 participating bidders had secured the order. The orders were
placed on these 50 bidders who had quoted rates (or near to identical rates) in a particular
pattern common to all the parties. The Competition Appellate Tribunal ("COMPAT") though
upheld these findings of CCI, but reduced the penalty. The cylinder suppliers appealed
against the orders of COMPAT before SC. The SC bench, in a detailed judgment (Rajasthan
Cylinders and Containers Limited vs. Union of India), considered the contention put forth
by the suppliers and CCI and observed that if the factors are taken into consideration by
themselves, they may lead to the inference that there was bid rigging. CCI's conclusion was
further fortified by the fact there is an active trade association of the appellants and a
meeting of the bidders was held in Mumbai just before the submission of the tenders,
coupled with factors like there were identical bids despite varying cost, identical products
and a small number of suppliers with few new entrants. However, the SC Bench noted that
there are only three buyers - IOCL, Bharat Petroleum Corporation Ltd. and Hindustan
Petroleum Corporation Ltd. and if these three buyers do not purchase from any of the LPG
cylinder manufactures, that particular manufacturer would not be in a position to sell those
cylinders to any other entity as there are no other buyers and fewer buyers may also serve
as a deterrent for new entrants to be attracted from entering in the market. For the 75
tenders in question, it was brought on record that the number of new entrants was 12,
which is not less and the price control mechanism practiced by the likes of IOCL have led to
the flawed conclusion by CCI. Further relying on European Court's judgment in Dyestuffs
case, the bench noted that price-parallelism does not itself amount to a concerted practice.
The bench concluded that in an oligopsony like situation, buyers do have an influence over
prices of sellers and the cylinder suppliers have not restored to bid-rigging and
cartelization in the concerned case in view of insufficient evidence. ..- -.
M\
Competition Act 2002
r C.P.NO *
9 32
SEC
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