Competition Law Bulletin Vol. II, No. 5, November - December, 2010 Delhi • Mumbai • Gurgaon • BengaluruFrom the Editor’s Desk... Inside...Dear Reader, INDIAN PERSPECTIVE • Special feature- CCI decides its first case onGreetings for CHRISTMAS AND NEW YEAR. bank pre-payment penaltyContinuing with our efforts to update you with • CCI passes orders on closure of certain casesthe latest developments in competition law, we • Media updatesare happy to present the last edition of 2010. • Competition Appellate Tribunal decidedCompetition Commission of India (CCI) has more pending MRTP mattersreported its first decision on “Bank pre–payment INTERNATIONAL NEWSpenalties“on December 2, 2010. As a special European Unionfeature of this issue, we present a write-uphighlighting the majority and dissenting views • EC launches antitrust investigation againstin this judgment. Google • EC fined 11 air cargo carriers €799 million inIt has further been reported in various price fixing cartelnewspapers (see our media section) that the • EC adopted revised competition rules onGovernment is considering a likely exemption horizontal co-operation agreementsfor the banks from the merger guidelines. Ifaccepted by the Government, it may not be a • EU court upholds €38m fine for seal breaking in competition investigationhealthy trend and may open demands for similartreatment from other sectors, like shipping etc. • EC approved Nokia-Siemens takeover of Motorola mobile systemsIn another development and in an attempt to rein • EC fined six LCD panel producers €648cartelization in the aviation sector, the CCI has million for price fixing cartelordered a suo motu investigation (ostensibly on areference from the Ministry of Civil Aviation) • Intels McAfee acquisition facing EU antitrust investigationinto the increase in airline fares. OthersI hope that our bulletin continues to invoke your • United States : Intels McAfee acquisitioninterest in developments on competition law. We approved by FTCinvite your views on the same and look forward For further details,for your continued support. • United Kingdom : UK companies cannot please contact.... recover fines for breach of competition lawYours truly, from their former director or employees Vinay Vaish • Cyprus: Telecommunications Authority fined for abuse of dominant position email@example.comM M Sharma VAISH ACCOLADESHead - Competition Law & Policy Satwinder Singh • Conferences/Seminars addressed byVaish Associates, Advocates Partners/Associates firstname.lastname@example.org@vaishlaw.com For Private Circulation Vaish Associates Advocates …Distinct. By Experience.
Competition Law Bulletin on the contrary is anti-consumer and anti-competitive. DG,INDIAN PERSPECTIVE therefore, concluded that, levying pre-payment charges bySPECIAL FEATURE banks violates provision of Section 19(3)(a), (c) and (d) of the Act.CCI decides its first case: Banks within rights to levyforeclosure penalty Majority View - By a majority decision the validity of the prepayment charges was upheld and the bench observedCompetition Commission of that "borrowers have a lot of choice about the banks from whichIndia (CCI), in its first reported they would take the home loan, with terms and condition of eachdecision, on December 2, 2010 are known to them and included in their agreement/contract forin Neeraj Malhotra Vs Deustche taking the loan." The bench held that “we find there are no factsPost Bank Home Finance Ltd. & that point toward dominant position of any of the banks / HFCsOrs. (Case no. 5/2009), has, inter investigated". They also held that since none of the banks oralia, held that the system of imposition of penalty for pre- HFCs (Housing finance Companies) investigatedclosure of home loans by banks and financial companies "individually" had any dominant position in the market ofdoes not violate any provision of Competition Act, 2002 retail home loans, hence provisions of section 4 (abuse of(Act). By a 4:2 majority decision, CCI set aside the findings dominant position) of the Act were not attracted to the factsof the Director General (DG) that such clauses were anti- of the present case. On the issue of cartel like behavior, thecompetitive in nature and contravene section 3 of the Act. majority view noted that the reference to Indian BanksThe full text of the decision is available on the website of Association meetings held in July and August, 2003 asCCI: www.cci.gov.in. starting point of concerted move by bank to levy pre-Issue involved - The issue involved is regarding banks and payment penalties was misplaced. While noting that somesome non-banking financial companies (NBFC) charging of the banks such as HDFC Bank were not even members ofpenalty on pre-payment of housing loans by the customers. IBA, and others like LIC had been imposing pre-paymentThe informant alleged that all the home loan providers penalty since 1995. The majority held that, "The lack offormed a cartel by levying a uniform 1–4 per cent imperative voice and intent is evident from the language andprepayment penalty if borrowers were to prepay the loans content of the said circular of IBA. It would be patently unjust toby themselves or if they were re-financing their loans from use it as an evidence of either action in concert or process ofanother bank/NBFC at cheaper rate of interest. This combined decision making by banks. This rules out any element ofpractice, according to the informant, was anti-competitive contravention of sub section (1) of section 3 (prohibition onand amounted to abuse of dominance by them since it agreements having appreciable adverse effect of competition)”. Itrestricts the choice of the customers. was also held by the majority that "It is equally clear that there is no agreement amongst the various service providers i.e. theDG Investigation - CCI ordered investigation by the DG banks/HFCs, nor is there any uniform practice being followed byinto the matter on September 10, 2009 and DGs them." The majority accordingly, held in favor of banks bothinvestigation report was submitted to the CCI on in terms of absence of dominant position and lack of anyDecember 16, 2009. The DG s found that the agreements agreement having an anti-competitive effect, and found thatwere in violation of Section 3(3) (b) of the Act. The DG also there was no violation of competition law in the presentfound that the group of banks have come together and instance.taken a collective decision under the auspices of the IndianBanking Association to limit market competition and to Dissenting views - Two CCI Members i.e. Honble Mr. P.generate fee based income. In his finding DG noted that the N. Parashar and Honble Mr. R. Prasad in their dissentingsaid collective decision of banks is beneficial to banks and orders found the practice of levying pre-payment penaltyNovember-December, 2010 Competition Law Bulletin 2
Competition Law Bulletinby Banks and NBFCs as anti-competitive and amounting investigation of the airlinesto cartelization, in view of the 2003 Indian Banks alliance with Jet Airways.Association meeting. As per the dissenting view it was held Subsequently on December 1,that “The analysis of the follow up actions by banks/HFCs 2010, Competition Appellatedemonstrates that out of fifteen opposite parties, twelve opposite Tribunal (COMPAT) stayedparties started adopting the practice of charging PPP (Pre- the CCI order imposing Rs. 1payment Penalty) at a rate of 2%. The other three opposite parties crore fine on Kingfisher airlines. COMPAT ruled againstnamely Indian Overseas Bank, Corporation Bank and Punjab & the imposition of a fine after it was convinced on the factsSind Bank which were not earlier charging any PPP started that Kingfisher had indeed furnished the informationcharging the same at a rate of 1 to 2% after 2003. This practice as sought by the CCI in time. The COMPAT order is confinedadopted by the opposite parties is in the nature of a cartel like to the question of the fine alone with a decisive hearingbehavior and anti-competitive practice.” The practice was held scheduled to take place on January 20, 2011.as "seriously jeopardizing the interests of consumers". (Source: The Business Standard, November 22 & December 2, 2010)According to Honble Member Mr. Parashar, though thebanks were not be penalized but directions were to be CCI investigating 11 complaints against real-estateissued to restrict them from levying prepayment penalty developerany further. Honble Member Mr. Prasad in his order not CCI on November 30, 2010only recommended stoppage of the practice of imposing disclosed that it is examining 11pre-payment penalty but also wanted the Banks to refund complaints of anti-competitivethe amounts levied as pre-payment penalty to all practices received against realcustomers who repaid the loans after May 20, 2009, being estate companies, some of whichthe date of enforcement of the provisions related with anti- were being probed by the CBI incompetitive practices and abuse of dominant position. connection with the housingCCI passes orders for closure of certain matters finance scam. CCIs Honble Chairman Shri Dhanendra Kumar said that out of the 137CCI has displayed on its cases that had been filed with it, 11 pertained to the realwebsite the full text of its estate sector. According to him the charges pertained toorders on closure of 19 sections 3 and 4 of the Act, dealing with anti-competitivecases of Informations filed agreement and abuse of dominant position.under the Act and 17 cases (Source: The Business Standard, November 30, 2010)of pending investigationstransferred from the Banks mergers sealed in times of crisis may go out of CCIDirector General of Investigation & Registration (DGIR) purviewand the COMPAT. A Government panel has favored exempting crisis mergers betweenMEDIA UPDATES banks from the CCI supervision, aCCI imposes Rs. 1 crore fine on Kingfisher Airlines for decision that could boost thenot providing facts; subsequently stayed by COMPAT corporate affairs ministrys efforts to get speedy Cabinet approval forOn November 21, 2010, CCI under section 43 of the Act the proposed merger norms. As mentioned in our lastimposed a Rs. 1 crore ($220,000) fine on Kingfisher Airlines edition of Competition Law Bulletin the committee offor not providing sufficient information in the CCIsNovember-December, 2010 Competition Law Bulletin 3
Competition Law Bulletinsecretaries set up to clear the regulatory logjam over bank real estate industry to frame clauses that are againstmergers, however, could not agree on the Reserve Bank of consumer interest.Indias view that all mergers between the countrys lenders (Source: Economic Times, December 19, 2010 & Business Standard, Decembershould be kept outside the purview of the competition 15 & 16, 2010)regulator. In a recent meeting, committee resolved to grant CCI orders formal probe into possible airfare cartelconditional exemption to bank mergers effected under Taking action on its ownemergency circumstances. The move is in conformity with initiative, CCI on Decemberthe internationally accepted practice of exempting crisis 23, 2010 asked its investi-mergers from the purview of competition regulators. The gation wing i.e. DG to initiateAct which does not provide any sectoral exemption for an investigation into thevetting mergers beyond a certain threshold, has taken RBIs possible cartel-like behaviorplea as an exception due to various reasons including CCIs in increase of airfares by airlines. CCI has sought data fromlack of domain knowledge on the sector. CCI stated that it the civil aviation ministry to investigation whether airlineshad distanced itself from the dispute, saying it is for policy have formed cartel to increase fares. CCI has also asked themakers to make a final call. Ministry of Civil Aviation to share information about the(Source: Economic Times, December 9, 2010) fare increase. Section 26 of the Act empowers the CCI toDirector General of CCI finds DLF abusing its dominant order an inquiry by the Director General if it felt a primeposition facie case existed for the violation of the Act. DG has beenDG in its investigation given 60 days time to complete the investigation.report held that Indias (Source: Economic Times, December 24, 2010)largest property devel- Director General of CCI finds Kingfisher-Jet agreementoper DLF Ltd has been anti-competitiveviolating norms and The DG has found the two-imposing unfair condi- year-old code share agreementtions on home buyers in between Jet Airways andGurgaon, and sought Kingfisher Airlines anti-action against the com- competitive in nature. DG haspany. In his report to the dismissed the airlines claimCCI, DG Investigations has sought the initiation of action that the agreement was enteredagainst DLF under sections 3 & 4 of the Act. The report was into for improving the overallalso critical of the non-cooperation by authorities like efficiency of the two companies and save costs. The DGSecretary, Haryana Urban Development Authority and report has found the code share agreement is in breach ofDirector, Town Planning Board and also sought a penal sections 3 & 4 of the Act. It has also been reported thataction against these two authoritiest for not responding to several clauses of the agreement between airlines wouldits queries. DG has also suggested forming model real hurt consumers, since they enjoy over 60% of the aviationestate regulations to safeguard customers from market. It is to be noted that CCI ordered an investigationdiscriminatory treatment. It had cited examples of building into the matter in July, 2009 after it received a complaintregulations from at least eight developed nations to point from a consumer.out how the absence of proper regulations are helping the (Source: The Financial Express, December 27, 2010)November-December, 2010 Competition Law Bulletin 4
Competition Law Bulletin COMPAT decides pending MRTP matters one of the factors that determine the price paid to Google COMPAT continues to decide the pending cases under the by advertisers. repealed MRTP Act. As per information received from the (Source: European Commission website, November 30, 2010- http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1624&format= record keeping office of COMPAT, it had disposed of 755 HTML&aged=0&language=EN&guiLanguage=en cases so far as per details below: EC fined 11 air cargo carriers €799 million in price fixing RTP cases 121 cartel UTP cases 355 The EC had fined 11 air cargo Compensation cases 279 carriers a total of €799,445,000 for MTP cases 0 operating a worldwide cartel which affected cargo services INTERNATIONAL NEWS within the European Economic area (EEA). Several known airlines are among the 11 EUROPEAN UNION: undertakings fined, namely Air Canada, Air France-KLM, EC launches antitrust investigation against Google British Airways, Cathay Pacific, Cargolux, Japan Airlines, The EC started an LAN Chile, Martinair, SAS, Singapore Airlines and Qantas. antitrust investi- The carriers coordinated their action on surcharges for fuel gation into and security without discounts over a six year period. allegations that Lufthansa (and its subsidiary Swiss) received full Google Inc. has immunity from fines under the Commissions leniency abused a dominant programme, as it was the first to provide information about position in online the cartel. search market, in (Source: European Commission website, November 9, 2010- http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1487&format= violation of HTML&aged=0&language=EN&guiLanguage=en ) European Union rules (Article 102 TFEU). The opening of formal proceedings follows complaints by search service EC adopted revised competition rules on horizontal co- operation agreements providers about unfavorable treatment of their services in Googles unpaid and sponsored search results coupled On December 14, 2010, EC with an alleged preferential placement of Googles own released revised Guidelines services. The EC will investigate whether Google has for the Assessment of abused a dominant market position in online search by Horizontal Cooperation allegedly lowering the ranking of unpaid search results of Agreements (New Guide- competing services which are specialised in providing lines). The European Com- users with specific online content such as price mission also released a draft comparisons (so-called vertical search services) and by Regulation on the application of Article 101(3) of the Treaty according preferential placement to the results of its own to Certain categories of Research and Development vertical search services in order to shut out competing Agreements (New R&D Block Exemption) and a draft services. The Commission will also look into allegations Regulation on the Application of Article 101(3) of the that Google lowered the Quality Score for sponsored links Treaty to certain categories of Specialization Agreements of competing vertical search services. The Quality Score is (New Specialization Block Exemption) (together the NewNovember-December, 2010 Competition Law Bulletin 5
Competition Law Bulletin Bock Exemptions). Both the New Guidelines and the New the European Union, arguing that the fine should be Block Exemptions are the result of a two year review reduced or wiped out. The Court backed the Commissions process. The New Guidelines replace the 2001 Guidelines decision. The fine is the first for the breaking of a seal, the for the Assessment of Horizontal Cooperation Agreements Commission said, noting that it could fine companies up to (Old Guidelines), and the New Block Exemptions replace 1% of their turnover for breaking a seal. the 2000 Block Exemptions, which were expected to expire (Source: European Commission website, December 15, 2010- on December 31, 2010. The New Block Exemptions will http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/686&for come into force on January 1, 2011, and expire on December mat=HTML&aged=0&language=EN&guiLanguage=en ) 31, 2022. The New Guidelines attempt to provide more EC approves Nokia-Siemens takeover of Motorola clarity and greater detail to enable companies to determine mobile systems for themselves whether any cooperation agreement with EC had cleared under EU their competitors is legal. In this respect, the New Merger Regulation the acqui- Guidelines are substantially longer than the Old sition of Motorola Network Guidelines. The new analytical framework laid out by the Business of the US by Nokia European Commission to assess horizontal cooperation Siemens Networks B.V. of The agreements encompasses two “key features,” i.e., the Netherlands. After examining adoption of an entire section dedicated to information the operation, the Commission concluded that the exchanges between competitors, and a substantially transaction would not significantly impede effective revised section on standard-setting. competition in the European Economic Area (EEA) or any (Source: European Commission website, December 14, 2010- substantial part of it. The EC investigation revealed that the http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1702) parties product portfolios are largely complementary and EU court upholds €38m fine for seal breaking in that MNB has a limited presence in the EEA. Furthermore, competition investigation the Commission found that the combined entity would Eon, the German energy group, has continue to face a number of large and effective failed to overturn a €38m fine competitors. As, the markets for mobile network imposed by EC for tampering with equipment are bidding markets with sophisticated buyers, sealed offices in the course of a dawn the Commission therefore concluded that the raid. The Commission conducted an concentration will not give rise to any competition investigation into energy companies concerns. It is to be noted that, the transaction did not meet in Germany in 2006 on suspicion that the thresholds of the Merger Regulation, but was referred anti-competitive practices were being to the Commission for review following a request from the used. Investigators carried out an merging parties. inspection at EONs Munich offices in May 2006. (Source: European Commission website, December 15, 2010- Documents were placed in a locked room overnight and http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1725&format= HTML&aged=0&language=EN&guiLanguage=en ) this was sealed with special stickers on which the word void became visible if they were removed. It later turned European Commission fined six LCD panel producers out that 20 other keys to open the room were in circulation. €648 million for price fixing cartel Inspectors found that the seal had been broken when they The EC had fined six LCD panel producers a total of returned the next day. The EC fined EON €38m for the €648,925,000 for operating a cartel between October 2001 breaking of the seal. EON appealed to the General Court of and February 2006 which harmed European buyers ofNovember-December, 2010 Competition Law Bulletin 6
Competition Law Bulletintelevision sets, computers levied in 2009 by the European Commission, which foundand other products that use the company abused its dominant position in the market.the key Liquid Crystal (Source: The Wall Street Journal, December 17, 2010-Display component. The six http://online.wsj.com/article/SB10001424052748703395904576025973738473are Samsung Electronics and 148.html?KEYWORDS=Intel%2527s+McAfee )LG Display of Korea and UNITED STATESTaiwanese firms AU Intels McAfee acquisition approved by FTCOptronics, Chimei InnoLuxCorporation, Chunghwa Picture Tubes and HannStar On December 21, 2010, Intel Corp.Display Corporation. Samsung Electronics received full won the approval from the FTC for itsimmunity from fines under the Commissions leniency proposed $7.68 billion acquisition ofprogramme, as it was the first to provide information about security specialist McAfee Inc. It is tothe cartel. Article 101 of the EU Treaty prohibits price- be noted that the same deal is stillfixing and other practices restrictive of competition. running into close scrutiny byDuring the four years, the companies agreed prices, European Commission that could at least delay completingincluding price ranges and minimum prices, exchanged the high-profile transaction. Intel said it is cooperating withinformation on future production planning, capacity the European Commissions review of the deal.utilisation, pricing and other commercial conditions. The (Source- The Reuters, December 21, 2010-cartel members held monthly multilateral meetings and http://www.reuters.com/article/idUSTRE6BK6F220101221 )further bilateral meetings. In total they met around 60 UNITED KINGDOMtimes mainly in hotels in Taiwan for what they called "the Companies cannot recover fines for breach ofCrystal meetings". competition law from their former director or employees(Source: European Commission website, December 8, 2010-http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1685 ) On December 21, 2010, the Court of Appeal (UK) handed down a key judgment in Safeway Stores Limited v Twigger,Intels McAfee acquisition facing EU antitrust finding that Safeway is not permitted to recover its penaltyinvestigation for breach of the Competition Act 1998 from thoseIntel Corp. $7.68 billion deal to buy security-software employees it considers being responsible for the infringingspecialist McAfee Inc. is running into close scrutiny by conduct. Court held that the corporate competition lawEuropean Commission that could at least delay completing fines imposed under the Act are “personal” to the finedthe high-profile transaction. The deal announced in entity. The case arose out of Safeways (a BritishAugust 2010 to buy McAfee is the largest in Intels 42-year supermarket chain) settlement with the UK Office of Fairhistory. Intel had formally notified the European Trading (OFT) in December 2007, under which it agreed toCommission of the deal on November 30, 2010. The EC had pay a fine of GBP11 million for alleged price fixingsent multiple questionnaires soliciting opinions about the concerning dairy products. Safeway subsequently soughtdeal from other security-software companies. The an indemnity from certain directors and former employeesquestions focus, on how Intel could embed security whom it considered to have been responsible for thefunctions into its chips and whether any of them could be infringing conduct. It commenced proceedings in the Highreserved to work only with McAfee software. It is to be Court to recover the penalty, variously claiming that thenoted that, Intel controls about 80% of the microprocessors employees and directors had broken the terms of theirused in the worlds PCs, and had already tangled with EU employment contracts, breached their fiduciary duties toantitrust authorities. Intel is appealing a $1.45 billion fine Safeway and was negligent in their conduct. Having lost anNovember-December, 2010 Competition Law Bulletin 7