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Competition Commission of India
 

Competition Commission of India

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Competition Commission of India Competition Commission of India Presentation Transcript

  • KALPESHKUMAR L. GUPTA LL.M., MBL (NLSIU), M.Phil. (Law)Academic Associate – IIM Ahmedabad 7th Executive Development Programme - ICSI November 8 , 2012
  • Outline of the presentation :-1. Introduction2. Some imp Definitions3. Provision for CCI in Competition Act, 20024. Recent Orders of CCI5. Recent News6. Video on CCI7. Q & A (C) K L GUPTA
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  • PART IV of Constitution of India DIRECTIVE PRINCIPLES OF STATE POLICYARTICLE 38. State to secure a social order for thepromotion of welfare of the people.(1)The State shall strive to promote the welfare ofthe people by securing and protecting as effectivelyas it may a social order in which justice, social,economic and political, shall inform all theinstitutions of the national life.ARTICLE 39. Certain principles of policy to befollowed by the State.-The State shall, in particular, direct its policy towardssecuring-(c) that the operation of the economic system doesnot result in the concentration of wealth and meansof production to the common detriment; (C) K L GUPTA
  • The Competition Architecture in India :-1. MRTP Act. 1969 enacted on the recommendationsof the Monopolies Inquiry Committee (MIC). It foundthat there is a high concentration of economic powerin over 85% of industries in India2. The MRTP Act was amended twice in 1984 & in1991.3. In 1984 amendments brought unfair tradepractices in its ambit in order to protect consumer.In 1991 anti competitive conduct covered.4. The Finance Minister in his budget speech in 1999announced of Raghavan Committee to propose amodern competition law suitable to needs Indianeconomy. Cont…
  • Cont… The Competition Architecture in India :- 5. In accordance with the recommendations of the Raghavan Committee, the Competition Act, 2002 was passed 6. Pursuant to the provisions of the Amendment in 2007, CCI was established on March 1, 2009 as an autonomous independent body. 7. In 2009, the MRTP Act was repealed and the MRTP Commission established under that act was abolished. MRTP Commission’s pending cases were transferred to CCI. 8. An appellate body called Competition Appellate Tribunal was set up in May 2009 to hear the appeal and dispose off the appeals against the decisions made by the Commission.
  • MRTP ACT, 1969 For Prohibition of Monopolistic, Unfair & Restrictive Trade Practice Liberalization – 1991 After this – difficulty arose to administer present marketCompetition Act, 2002 to meet therequirement of the highly competitive market1. Anti-Competitive Agreements2. Abuse of Dominance3. Combinations4. Competition Advocacy (C) K L GUPTA
  • An Act to provide, keeping in view ofthe economic development of thecountry for the establishment of aCommission to-prevent practices having adverseeffect on competition,-to promote and sustain competition inmarkets,-to protect interest of the consumerand-to ensure freedom of trade carried onby other participants in markets (C) K L GUPTA
  • (C) K L GUPTA
  • Cartel (Section 2(c))Cartel includes an associationof producers, sellers,distributors, traders orservice providers who, byagreement amongstthemselves,limit,control or attempt to controlthe production, distribution,sale or price of, or, trade ingoods or provision ofservices. (C) K L GUPTA
  • Anti Competitive Agreement (Section 3) :-No enterprise or association of enterprises orperson or association of persons shall enter intoany agreement in respect of production, supply,distribution, storage, acquisition or control ofgoods or provision of services,……… which causes or is likely to cause anappreciable adverse effect on competitionwithin India. (C) K L GUPTA
  • Abuse of Dominant Position (Section 4) :-No enterprise or group shall abuse its dominantposition."dominant position" means a position of strength,enjoyed by an enterprise, in the relevant market,in India, which enables it to—(i) operate independently of competitive forcesprevailing in the relevant market; or(ii) affect its competitors or consumers or therelevant market in its favour. (C) K L GUPTA
  • Predatory price (Explanation (b) in Section 4) :-"predatory price" means the sale of goods orprovision of services, at a price which is below thecost, as may be determined by regulations, ofproduction of the goods or provision of services,with a view to reduce competition or eliminate thecompetitors. (C) K L GUPTA
  • Combination (Section 5) :-The acquisition of one or more enterprises by oneor more persons or merger or amalgamation ofenterprises shall be a combination of suchenterprises and persons or enterprises, if—Acquirer or Acquiree or Jointly have either in India assets of >1000 Crore or turn over >3000 Crore or in India or Outside India, in aggregate, the assets of >$500 Million, including at least Rs. 500 crore in India or turn over >$1500 Million including at least Rs. 1500 Crore in India or Cont.. (C) K L GUPTA
  • Cont..Combination (Section 5) :-After acquisition, jointly have either in India assets >4000 crore or turn over >Rs. 12000 Crores or In India or outside India, in aggregate the assets >$2 Billion including at least Rs. 500 Crores in India or turnover >$6 Billion including at least Rs. 1500 Crores in India or Cont.. (C) K L GUPTA
  • Combination (Section 5) :-Any merger or amalgamation in which- the enterprise remaining after merger orthe enterprise created as a result of theamalgamation have either in India, the assets of the value of>Rs. 1000 Crores or turn over >3000 Crores or in India or outside, In aggregate, the assetsof the value of >>$500 Million including at leastRs. 500 Crores in India or turnover >$1500including at least Rs. 1500 Crores in India Cont.. (C) K L GUPTA
  • Combination (Section 5) :-The value of assets shall be determined by takingthe book value of the assets as shown, in theaudited books of account of the enterprise, in thefinancial year immediately preceding the financialyear in which the date of proposed merger falls…..………as reduced by any depreciation, and thevalue of assets shall include the brand value,value of goodwill, or value of copyright, patent,permitted use, registered trade mark, registereduser, geographical indication, design or layout,etc. (C) K L GUPTA
  • Regulation of Combinations (Section 6) :--No Person or enterprise shall enter into acombination which causes or is likely to cause anappreciable adverse effect on competition andsuch a combination shall be void.-Notice to the Commission within 30 days fromexecution of agreement / approval of the proposalrelating to mergers or amalgamation by the Boardof Directors of the Co. concerned.-No Combination shall come into effect until 210days have passed from day on which notice hasbeen given to Commission. Cont.. (C) K L GUPTA
  • Regulation of Combinations (Section 6) :--The provisions of this section shall not apply toshare subscription or financing facility or anyacquisition, by a public financial institution,foreign institutional investor, bank or venturecapital fund, pursuant to any covenant of a loanagreement or investment agreement.-Above financial organizations shall within 7 daysfrom the days of the acquisition file in Form IIIwith the Commission the details of acquisition. (C) K L GUPTA
  • Regulation on Combinations (Section 64) :--The CCI (Procedure in regard to the transactionof business relating to combinations) Regulations,2011 (Notified on May 11, 2011)-It has completed one year, during this period theCommission received 61 notices out of which 56notices have been cleared.-These notices were cleared within the self-imposed limit of 30 days. (C) K L GUPTA
  • Notice for the proposed combination :--Form I with Fees of Rs. 10 lakhs (Schedule II)-Where parties are engaged in production, supply, distribution sale etc. of similar or identical product with specified share market then Form II with Fees of Rs. 40 lakhs (Schedule II)-In case of public financial institutions, FIIs, bank or venture loan or any investment agreement without fees in Form III (C) K L GUPTA
  • Failure to file notice (Regulation 8):-Where the parties to a combination fail to filenotice, then Commission upon its own knowledgeor information relating to such combination,inquire into whether such a combination hascaused or is likely to cause an appreciable adverseeffect on competition within India and direct theparties to the combination to file notice in Form IIwithin 30 days of the receipt of the notice. (C) K L GUPTA
  • Obligation to file notice (Regulation 9):--In case of Acquisition, the Acquirer shall file thenotice.-In case of merger parties to the combinationshall jointly file notice. (C) K L GUPTA
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  • Establishment of Commission (Section 7) :--Head Office at New Delhi-The Commission may establish at other places in IndiaComposition of Commission (Section 8) :--A Chairperson-Not less than 2 and more than 6 other members appointedby the Central Government.-Chairperson & other members of the Commission shall bewhole-time members. (C) K L GUPTA
  • Term of office of Chairperson & other Members(Section 10)-5 years (Till age of 65)-They shall be eligible for re-appointmentVacancy, Defect in appointment, etc not toInvalidate proceedings of Commission (Section15) (C) K L GUPTA
  • Restriction on Employment of Chairperson & othermembers (Section 12) :-The Chairperson & other Members shall not for aperiod of 2 years from the date on which they cease tohold office any employment in, or connected with themanagement or admin of any enterprise which hasbeen a party to a proceeding before the Competition.However, the aforesaid restriction will not apply toany employment under Central or State Government orLocal Authority or in any statutory authority. (C) K L GUPTA
  • Appointment of Director General etc. (Section 16) :-The Central Govt. may by notification, appoint aDirector-General for the purpose of assisting theCommission in conducting inquiry into contraventionof any of the provisions of this Act (C) K L GUPTA
  • Duties of Commission (Section 18) :-Duty of the Commission is to….-eliminate practices having adverse effect oncompetition.-promote and sustain competition-protect the interest of consumers and-ensure freedom of trade carries on by otherparticipants in markets in India (C) K L GUPTA
  • Inquiry into certain agreements & dominantposition of enterprise (Section 19) :--Receipt of any information from any person,consumer or their association or trade association or-A reference made to it by the Central Government ora State Government or a Statutory Authority.-Suo moto (C) K L GUPTA
  • Determinants – whether an agreement has anappreciable adverse effect on competition(Section 19) :--Creation of barriers to new entrants in the market;-Driving existing competitions out of the market;-Foreclosure of competition by hindering entry into themarket;-Accrual of benefit to consumers;-Improvement in production or distribution of goodsor provisions of services;-Promotion of technical, scientific and economicdevelopment by means of production or distribution ofgoods or provision of services etc. (C) K L GUPTA
  • Determinants – whether an enterprise enjoys adominant position or not (Section 19) :--Market share of the enterprise;-Size and resources of the enterprise;-Size and importance of the competitors;-Economic power of the enterprise includingcommercial advantages over competitors;-Vertical integration of the enterprises or sale orservices or network of such enterprise;-Dependence of consumers on the enterprise;-Market structure and size of the market etc.. (C) K L GUPTA
  • Inquiry into combinations by Commission(Section 20) :--The Commission may upon its own knowledge orinformation relating to acquisition referred to inSection 5, inquire into whether such a combinationshas caused or is likely to cause an appreciableadverse effect on competition in India.-Commission shall not initiate any inquiry after theexpiry of 1 year from the date on which suchcombination has taken effect. (C) K L GUPTA
  • Procedure for inquiry under Section 19(Section 26) :--Under the Section 19, if the Commission is of theopinion that there exits a prima facie case, it shalldirect the Director General to cause an investigation tobe made into the matter if not prima facie case, it shallclose the matter.-DG shall submit report.-Report will be sent to parties concerned/CentralGovernment/State Government as the case may be. (C) K L GUPTA
  • Orders by Commission after inquiry intoagreements or abuse of dominant position(Section 27) :--Direct any enterprise, person etc. to discontinue andnot to re-enter such agreement or discontinue suchabuse of dominant position.-Impose such penalty, as it may deem fit which shallbe not more than 10% of the average of the turnoverfor the last three proceedings financial years.-Direct to modify agreements. (C) K L GUPTA
  • Procedure for investigation of combinations(Section 29) :--Commission is of the prima facie opinion that acombinations is likely to cause or has causes anappreciable adverse effect on competition, it will issuenotice to the parties to combination calling upon themto respond within 30 days of the receipt of the noticeas why investigation in respect of such combinationshould not be conducted.-After receiving reply Commission may call for reportfrom DG.-Commission will ask for publication of agreement ifthere is prima facie case of appreciable adverse effect (C) K L GUPTA
  • Orders of Commission on certain combinations(Section 31) :--Where Commission is of the opinion that anycombination does not or is not likely to have anappreciable adverse effect on competition it shall byorder approve the combination.-If yes then it shall direct that combination shall nottake effect.-Commission may propose to modify combinationmake it lawful.-If parties accept modification then it will beapproved.-If parties do not accept modification, suchcombination shall be deemed to have an appreciableadverse effect on competition. (C) K L GUPTA Cont.
  • Cont.Orders of Commission on certaincombinations (Section 31) :-If the Commission does not on the expiry of aperiod of 210 days from the date of notice givento the Commission under sub-section (2) ofsection 6, pass an order or issue direction inaccordance with the provisions of sub-section (1)or sub-section (7), the combination shall bedeemed to have been approved by theCommission. (C) K L GUPTA
  • Acts taking place outside India but having aneffect on competition in India (Section 32) :-The Commission shall, notwithstanding that, anagreement referred to in Section 3 has been enteredinto outside India;a.Any party to such agreement is outside India; orb.Any enterprise abusing the dominant position isoutside India orc.A combination has taken place outside India ord.Any other mater matter or practice or action arisingout of such agreement or dominant position orcombination is outside India, Have power to inquire into such agreement or abuse of dominant position or combination if such agreement or dominant position or combination has or is likely to have an appreciable adverse effect on competition, pass such orders as it may deem fit. (C) K L GUPTA
  • Power to issue interim orders (Section 33) :-The Commission may by order, temporarily restrainany party from carrying on such act until theconclusion of any such inquiry or until further orders,without giving notice to such party where it deemsnecessary. (C) K L GUPTA
  • Contravention of orders of Commission(Section 42) :--If any person, without reasonable cause, fails tocomply with orders or directions of the Commissionissued under Sections 27,28,31,32,33,42A and 43A ofthe Act, he shall be punishable with fine which mayextend to Rs. 1 lakh for each day during which suchnon-compliance occurs, subject to a max of Rs. 10Crore.-If any person does not comply with the above, heshall be punishable with imprisonment for a termwhich may extend to 3 years or with fine which mayextend to Rs. 25 crore or with both as the ChiefMetropolitan Magistrate, Delhi may deem fit. (C) K L GUPTA
  • Compensation in case of contravention of orders ofCommission (Section 42A):-Application can be made To Appellate Tribunal forviolating directions issued by Commission (C) K L GUPTA
  • Penalty for failure to comply with directions ofCommission & Director General (Section 43) :-If any person fails to comply, without reasonablecause with a direction given…………….punishable with fine which may extend to Rs. 1lakh for each day during which such failure continuessubject to a maximum of Rs. 1 Crore. (C) K L GUPTA
  • Power to impose penalty for no-furnishing ofinformation on combinations (Section 43A)Commission shall impose on such person or enterprisea penalty which may extend to 1% of the totalturnover or the assets whichever is higher of suchcombination. (C) K L GUPTA
  • Establishment of Appellate Tribunal (Section 53A) :-The Central Govt. shall by notification establish anAppellate Tribunal to be know as CompetitionAppellate Tribunal, - to hear and dispose of appeals against orders, directions passed by the Commission; - to adjudicate on claim for compensation that may arise from the findings of the Commission. (C) K L GUPTA
  • Composition of Appellate Tribunal (Section 53B) :-- A Chairperson &- not more than 2 membersTerm of Office (Section 53F) :--5 years, eligible for re-appointment-Chairperson (68 years), Members (65 years) (C) K L GUPTA
  • Awarding compensation (Section 53N) :--The Central Govt. or a State Govt. or a local authorityor any enterprise or any person may make anapplication to the Appellate Tribunal to adjudicate onclaim for compensation that may arise from thefindings of the commission.-Every application made under shall be accompaniedby the findings of the Commission.-The Appellate Tribunal may, after an inquiry into theallegations mentioned above pass an order directingthe enterprise to make payment to the applicant. Power of Competition Commission of India to award compensation under Section 34 repealed by the Competition (Amendment) Act, 2007 (C) K L GUPTA
  • Contravention of orders of Appellate Tribunal(Section 53Q) :-If any person contravenes, without any reasonableground any order of the Appellate Tribunal, he shallbe liable for a penalty of not exceeding Rs. 1 Croreor imprisonment for a term upto 3 years or withboth as the Chief Metropolitan Magistrate, Delhimay deem fit. (C) K L GUPTA
  • Competition Advocacy(Section 49) :-The Commission shall makesuitable measures for thepromotion of competitionadvocacy, creating awarenessand imparting training aboutcompetition issues.(C) K L GUPTA
  • 60 days Competition Appellate Tribunal (Section 53A) 60 days Competition of Commission of India (Section 7)Appeal Flow
  • OrganizationalStrcuture of CCI (C) K L GUPTA
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  • CCI is now member of International CompetitionNetwork, USA :--On October 25, 2001, top anti trust official from 14countries including UK, USA, Australia, Germany,Japan, Korea etc. launched ICN-The ICN is an informal network of established andnewer agencies, competition agencies with thecommon aim of addressing practical antitrustenforcement and policy issues.-The ICN has grown to 117. (As on May 2011) (C) K L GUPTA
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  • DLF fined for abuse ofdominance :-DLF apartment owners associationssuch as the Belaire and the ParkPlace Owners Associations, Gurgaonfiled information with theCommission against DLF Ltd. in theyear 2010.It was alleged that by imposingarbitrary, unfair and unreasonableconditions on the apartmentallottees in the Belaire and ParkPlace situated in DLF city, Phase - VGurgaon, DLF had abused itsdominant position. (C) K L GUPTA Cont…
  • Cont…DLF fined for abuse of dominance :--CCI directed DLF to cease & desist fromformulating & imposing unfair conditions in itsagreements with buyers & modify unfairconditions imposed on the buyers.-The CCI also imposed penalty @7% of theaverage turnover for the 3 preceding financialyears aggregating to Rs. 630 Crores on DLF.-DLF appealed in COMPAT. It also got stay onorder of CCI (C) K L GUPTA Cont…
  • Cement companiespenalized forCartelization :--CCI found Cement Mfgs inviolation of the provisions ofthe Competition Act, 2002which deals withanticompetitive agreementsincluding Cartels.-The order was passedpursuant to investigationcarried out by the DG uponinformation filed by theBuilder Association of India. (C) K L GUPTA Cont…
  • Cont…-On July 30, disposing of 6-year-old investigation,initiated by its predecessor trade regulator bodyMonopolies and Restrictive Trade Practices Commissionin 2006, the CCI had found the cement makers guilty.-MRTPC had initiated the enquiry in 2006 suo motobased on a media report on the rise of cement prices. Itwas also later supplemented with a complaint filed bythe Builders Association of India.-Cement companies move tribunal against CCI order.Next hearing is on November 22, 2012.* *Source :- http://articles.economictimes.indiatimes.com/2012-11- 01/news/34857835_1_century-cements-grasim-cements-cci-order Dt. November 1, 2012 (C) K L GUPTA Cont…
  • Rs.6500Crores(C) K L GUPTA
  • Commission takes suo-moto cognizance ofbid-rigging by manufactures of LPGcylinders :--In 2011, the Commission took suo motocognizance of the reported manipulation of thebids by manufacturers of LPG cylinders forsupplying 105 lakh to IOCL during 2011-2012-DG found identical price in bidding which deprivedthe IOCL from getting competitive price.-Matter is pending before the CompetitionAppellate Tribunal (C) K L GUPTA Cont…
  • Commission imposed fine of Rs. 165.59 Crores andit further directed all the contravening parties tocease and desist from indulging in anti-competitiveconduct which resulted in bid rigging. (C) K L GUPTA
  • CCI fines 10 explosives manufacturers ona complaint filed by Coal India;Amarchand represents Coal India :-The penalty has been imposed for violations ofSection 3 of the Competition Act, 2002 (the Act).The complaint was filed by Coal India Limited(CIL) under Section 3 and 4 of the Act allegingthat various explosives manufacturers wereengaging in anti-competitive conduct bycollectively determining prices, threatening tostop supplies and boycotting the reverse auctionsorganized by CIL in 2010 to finalize its suppliersfor explosives. Source :- http://barandbench.com/brief/8/2290/cci-fines-10-explosives-manufacturers- on-a-complaint-filed-by-coal-india-amarchand-represents-coal-india- accessed on November 1, 2012 (C) K L GUPTA Cont…
  • Competition Commission of Indiaimposes fine on film chamber(The Hindu, April 20, 2012):-Competition Commission of India imposing a fineof Rs. 16.82 lakh on the Karnataka Film Chamberof Commerce (KFCC) for restricting the number ofprints of language films other than Kannada.KFCC, which follows a set of norms, restricted thenumber of prints of the Hritik Roshan-starrerKites and an Abhishek Bachchan film Raavan to24 in the State in 2010. When the distributor didnot heed its ruling, KFCC issued a warning anddisrupted the screening of Kites. Source :- http://www.thehindu.com/news/states/karnataka/article3332863.ece accessed on November 1, 2012 (C) K L GUPTA Cont…
  • Cont…Besides the makers of Kites and Raavan,producers of RaOne, My Name is Khan, Mousamand a few others have knocked on the doors ofCompetition Commission of India seeking justice.Noting that the decision of the KFCC was anti-competitive,Competition Commission of India “found itappropriate to impose penalty at the rate of 10%of the average three years income of the KFCC”. Source :- http://www.thehindu.com/news/states/karnataka/article3332863.ece accessed on November 1, 2012 (C) K L GUPTA
  • (C) K L GUPTA
  • Competition Commission of India probesauto companies’ ‘monopolistic’ practices(Times of India, August 8 , 2012):-The Competition Commission of India (CCI)has launched investigations into thecurrent trend of automobile companies notallowing their dealers to diversify withother brands. Source :- http://timesofindia.indiatimes.com/business/india-business/Competition- Commission-of-India-probes-auto-companies-monopolistic- practices/articleshow/15398329.cms accessed on November 1, 2012 (C) K L GUPTA
  • Devgn vs Chopras: Ajay Devgn files complaint against Yash Raj Films :- Ajay filing a complaint with the Competition Commission of India (CCI) alleging that the makers of Jab Tak Hai Jaan have been blocking the release of his film in certain theatres. v/sSource :- http://indiatoday.intoday.in/story/ajay-devgn-files-complaint-against-yash-raj-films/1/227144.html accessed on November 1, 2012 (C) K L GUPTA
  • Ajay Devgn ComplainsAgainst Yash Raj Films toCCI :-Competition Commission of India(CCI) has received a complaint ADFfrom actor-producer Ajay Devgnagainst Yash Raj Films for alleged v/sabuse of dominant position aheadof the release of their films thismonth."The complaint is beingconsidered. A decision onwhether to accept it or not islikely to be taken in a week orso," the official said.Source :- http://news.outlookindia.com/items.aspx?artid=779766 accessed on November 2, 2012 (C) K L GUPTA
  • CCI rejects Ajay Devgns plea againstYash Raj Films (November 5, 2012) :-Fair trade regulator CCI has rejected actor-producer Ajay Devgns complaint allegingabuse of dominant position by Yash Raj Films,saying that there are no violations ofcompetition norms in the case.Ajay Devgn Films (ADF) said it has appealedagainst the Competition Commission of Indias(CCI) ruling. (C) K L GUPTA
  • For Market to be just……..For Market to be just……..……..Competition is must……..Competition is must (C) K L GUPTA
  • Kalpeshkumar L Gupta Academic Associate IIM Ahmedabad klgupta@iimahd.ernet.in advocatekgupta@gmail.com(c) K L Gupta