Leniency rules

under competition
law - a
competitive legal
study between
India and USA
EXECUTIVE SUMMARY

The competition law framework in India is still in its infant stages. India just recently had a
celebration to mark the passage of the Competition Law Act (2002), which entered into force
in the country in the year 2009. The Sherman Act of 1890 established the foundation for
modern day competition law in the United States. The United States of America, which is a
developed economy, has a competition system that is noticeably more developed and well-
established than India has. The purpose of this article is for the author to evaluate and
critically analyse the competition law frameworks of both countries, specifically with regard
to their statutory frameworks, institutional frameworks, implementation and enforcement of
laws, as well as their positive and negative qualities. In addition, the author provides an
analysis of the shortcomings in the framework of India's competition legislation and offers
further suggestions for India to adopt and integrate certain best practises from the system in
the United States, which would ultimately result in the loopholes being closed. The protracted
process of building a model competition law regime for the rest of the globe will hopefully be
finished in India someday, and I have high hopes that this will happen. The essential raw
material has already been given by the Indian parliament, and it is able to achieve the
intended outcome.
 CHAPTER-1
INTRODUCTION
1.1 INTRODUCTION

It is essential to the growth of any economy to have a framework for competition legislation
that is both healthy and effective. It contributes to the regulation of a fair market that is
devoid of anti-competitive behaviors that have an effect on consumers as well as businesses.
Competition law is essential for maintaining market equilibrium because it ensures that a
small number of powerful players do not run the show by themselves. Rather, the market
functions in such a way that practises do not create barriers to entry for small businesses or
place an undue burden on businesses, thereby compelling them to engage in unfair practisesin
order to get ahead of the competition.
The Monopolistic and Restrictive Trade Practices Act of 1969 (often known as "MRTP")
served as the basis for competition law in India until it was replaced by the Competition Act
of 2002. Since then, competition law has continued to develop (the "Act"). The MRTP Act
was designed with socialist ideas and conceptions at its core, and these ideologies and ideas
form an essential part of the Directive Principles of State Policy ("DSP"). The primary
purpose of the MRTP was to discourage and inhibit the formation of market monopolies. It
was established that any such concentration of power in a free market in the hands of a few
would put economic growth and consumer interests at risk, and as a result, it was necessary to
place restrictions on such power concentrations. However, the MRTP did not include any
meaningful punishments to be implemented against enterprises operating in the public sector,
and it placed an unreasonable burden on the private sector. In addition, ideas like collusion,
misuse of power, price fixing, and bid rigging were not defined, which rendered the MRTP
worthless in addressing emergent challenges in the Indian market in the wake of the events
that took place in 1991.
As a direct consequence of this, the "Operate" (also known as the "Competition Act") was
passed into law in 2002 to remedy the deficiencies of the MRTP and to act as an efficient
instrument for encouraging fair business practises in the Indian market. The prologue of the
Act provides additional insight into its intent, which can be summarised as follows: "An act
to provide, in light of the country's economic development, for the establishment of a
Commission to prevent anti-competitive practises, to promote and sustain competition in
markets, to protect consumers' interests, and to ensure the freedom of trade conducted by
other market participants in India..."
The following are restricted or prohibited as a result of the Act: (A) anticompetitive
agreements (the Act's Section 3); (B) misuse of dominant position (the Act's Section 4); and
(C) combinations (sections 5 and 6 of the Act). The Act established the Competition
Commission of India ("CCI" / "Commission") and the erstwhile Competition Appellate
Tribunal ("COMPAT") (which has since been merged with the National Companies Law
Appellate Tribunal ("NCLAT"), collectively referred to as the "Tribunal") as the primary
authorities charged with the responsibility and authority to carry out the provisions of the
Act, curb restrictive trade practises, and safeguard consumer welfare. The COMPAT has
since been merged with the National Companies Law Appellate Tribunal
This study investigates how India's legislative framework regarding competition has
developed over time. The study is broken up into segments, and each of those chapters covers
the challenges and the legal framework that are associated with a different aspect of
competition law. In order to offer a comprehensive picture of the practise in India, an analysis
of the pronouncements and measures taken by the commission and the tribunal in the course
of regulating market practises has been conducted. This article is broken up into chapters for
your convenience. (I) Anticompetitive Agreements, which are governed by Section 3 of the
Act and review laws prohibiting such conduct as well as recent court decisions; (II) Abuse of
Dominance, which is pursuant to Section 4 of the Act and investigates the circumstances that
contribute to the establishment of dominance and the abuse of such power to create an
anticompetitive market environment; (III) The procedure for conducting an investigation in
accordance with the Act; (IV) Other matters pertaining to the administration of the Act (IV)
Regulation of Corporate Mergers (V) Measures to Mitigate Danger
1.2 Objective

1. Acquiring an awareness of the concept of Rules of Clemency.

2. To have a working knowledge of the regulations that apply to competitiveness.
3. to have an awareness of the laws governing competition in India and in the United States
4. to have an awareness of the legal study of the rivalry that takes place between the United
States and India.

1.3 RESEARCH AND METHODOLOGY

The purpose of the research was to conduct a comparative legal analysis between India and
the United States of America, and one of its aims was to evaluate leniency criteria under
competition law. Taking into account the figures from the prior years. This research is going
to use an exploratory, qualitative, and descriptive approach to its data collection. The
theoretical basis is the cornerstone around which the technique is built.

1.4 DATA COLLECTION

The majority of the information that was utilised for this research came from secondary
sources, such as periodicals, newspapers, articles, and annual reports.

1.5 DATA RELIABILITY

Because the vast bulk of the data comes from secondary sources, the data may be considered
more dependable; nevertheless, this research does make use of some approximated values as
well.

1.6 LITERATURE REVIEW

"This is the era of rights," Louis Henkin (1990) writes in the preface of "The Age of Rights."
"Human rights" is the only universally accepted political-moral idea, he says. According to
Ronald Dworkin (Tribune, 2009), 'rights as trumps' may constrain governmental behaviour if
it infringes individual liberty. Human rights, previously called "natural rights," are essential
to our existence as humans. A human right is one that is inherent in all human beings and
cannot be renounced or withdrawn. It imposes duties of action and omission, notably on
governments and governmental actors. The 1945 UN Charter declared that every person has
rights regardless of race, gender, country, ethnicity, religion, or belief. Y.S.R. Murthy (2007)
says the UN Declaration on Human Rights was created as a universal success criteria. 70
human rights treaties are legally enforceable. India has ratified many international human
rights documents, including the International Covenant on Economic, Social, and Cultural
Rights. A right to life, liberty, and personal security is stated in Article 3 of the UDHR.
Because it has ratified an international treaty enshrining the right to life, India is required to
take adequate steps to prevent extrajudicial killings. Encounter murders are on the rise in
India, despite Article 21 of the Indian Constitution guaranteeing the right to life.
Governments have failed to take bold and effective steps to ensure this right is respected in
principle and practise.
The following publications and studies examine the right to life outside international
conventions and treaties. The first volume of the Committee for Coordination on
Disappearances in Punjab (CCDP) final report, "Reduced to Ashes: The Insurgency and
Human Rights in Punjab," was released in 2003. It is one of the most extensive examinations
exposing state agencies' unfathomable law enforcement crimes. Ram Narayan Kumar et al.
(2003) detailed 672 cases of police abuse in the Amritsar area in 500 testimony from victims'
families.
The whole book "Eleven Years Behind Bars" shows how our criminal justice system works
and how strong officers are at fabricating tales and sentencing innocent individuals to life in
prison. His storey of a fake execution practise that may have been genuine tells a lot about
fake police encounters around the nation. This book shows unlawful arrests, detentions,
torture, and murders in India during police encounters. Bhattacharjee's (2015) book 'Blood on
my Hands' exposes institutionalised human rights violations. Staged confessions provide
previously undiscovered experience reports. An army officer's secret admission outlines the
anatomy of staged encounters in India, including how medals are determined depending on
body count. The narratives let the researcher comprehend the occurrence from two
perspectives: the state's official version and the families' testimonies.
Extrajudicial deaths of 53 people by paramilitary border security troops in Sopore were
studied by Amnesty International (NGO) in April 1993. (district in Jammu and Kashmir). It
includes murder eyewitnesses. Amnesty International's study highlighted human rights
breaches in Jammu and Kashmir. Thousands of arbitrary arrests and lengthy arbitrary
detentions in violation of special legislation eroded legal protections and promoted human
rights violations. Since 1990, extrajudicial killings have been common in Kashmir. Parallel
reasoning is used to understand Uttar Pradesh.
Crime victims' socioeconomic status is correlated. A fake encounter is only found after the
families file a lawsuit, according to Neha Dixit (2018). "Countering the Silence" (2018) by
Citizens Against Hate details 16 alleged encounter deaths in Uttar Pradesh and 12 in Haryana
between 2017 and 2018. The study says all victims are from disadvantaged categories. Most
are landless farmers, manual labourers, or informal sector hawkers from poor 'lower castes'

1.4 HISTORICAL BACKGROUND

After more consideration, it seems that we did not make a clean break with our colonial past
when we gained our freedom. The judicial system was mainly a continuation of the system that
had been created by the British, while administrative institutions were mostly British Indian in
origin. The restrictive legal structure that was constructed by the British and was meant to limit
non-cooperation and civil disobedience actions is still on the books in independent India, and it is
still being continually executed. 24 The police in India use the term "encounter murders" to gloss
over the fact that they are carrying out extrajudicial executions. Since the 1960s, this word has
been used to characterise the regularity with which authorities state that the deceased was killed
during a "encounter." According to Bhatacharjee, the phrase "encounter killing" was first used
under the emergency rule that was in place in the nation. Up until that time, the phrase "fake
encounter" had not yet made its way into our everyday vernacular. Between the years 1970 and
1976, police officers frequently arrested political activists from their homes and then shot them to
death, sometimes while they were sleeping, either in the same location or after taking them to a
more peaceful location. This took place either immediately after the arrest or after being taken to
a different location.
Even though India has a long history of brutal governmental repression, the phrase "encounter
death" did not enter human rights legislation until the late 1960s. This is despite the fact that India
has been a colonial power for a very long time. At the tail end of the 1960s, members of the
Indian Police Service came up with the technique known as "encounter" with the intention of
putting an end to the Naxalite movement. Wherever the Naxalites broke away from the Marxists
in the early 1970s and embraced a programme of people war that included the death of class
enemies, the police reacted by also carrying out assassinations of suspects when they came into
contact with them. In the years after the death of Prime Minister Indira Gandhi in 1984, extensive
counter-insurgency operations were carried out in the state of Punjab until 1995. In a famous
interview with Time magazine, the previous police chief of the state, K.P.S. Gill, famously
declared, "If there are no legal remedies, there will be extra-legal ones." In the guise of putting
down the anti-Khalistan rebellion and with the support of the government, there were a number of
extrajudicial executions that took place.

CHAPTER 2

LENIENCY

2.1 DEFINITION
Leniency refers to a reduction in fines or other penalties imposed by competition authorities
on corporations implicated in cartels in exchange for the corporations disclosing the existence
of the cartel agreement or cooperating with the authorities' investigation by providing
evidence. This reduction can take the form of a full reduction or a reduction in a portion of
the penalty. This method not only acts as a disincentive to businesses that are considering
engaging into cartel arrangements, but it also helps uncover hidden cartels that are already in
place. It is based on the prisoner's dilemma: its objective is to instil mistrust among cartel
members by repeatedly threatening that one of them would denounce the cartel to the police.
This is done in order to achieve the purpose of the strategy. Because of this, leniency
programmes, in conjunction with harsh fines, put continuous pressure on corporations to
work cooperatively with competition authorities.

2.2 Leniency Programme

It's a formal way to provide leniency to a cartel member who discloses the cartel to the
Commission, making it a type of whistle-blower protection. a Competition authorities have
developed a variety of leniency programmes to encourage and reward various parties
involved in the commission of such anticompetitive agreements to come forward and disclose
such agreements and cooperate with the competition authorities in exchange for immunity or
leniency. When the existence of a cartel is found on its own, persons who come forward and
offer correct information may risk serious penalties from the Commission.
The antitrust division's cartel enforcement framework relies heavily on the Leniency
Program. Conspiracy theories may be destabilised greatly if wrongdoers are encouraged to
come forward and disclose their crimes. This programme has had a major influence on
enforcement. This division made 129 successful applications for leniency in criminal cartel
cases from 2004 to 2010, according to an audit by the Government Accountability Office
(GAO) in 2011. (75 per cent). Because of its success, the Leniency Program has inspired the
creation of 50 more programmes of its kind.
For each conspiracy, the Antitrust Division gives one leniency award to just one participant,
and this race may be determined in hours when several conspirators realise the arrangement is
on its last legs. In many of these situations, the contrast in consequence is stark. However, the
longer a party waits collaborating, the less profit it will get from subsequent cooperators.
Confession of a criminal antitrust violation and complete cooperation with the Antitrust
Division are prerequisites for receiving conditional leniency.
Leniency is only available for Sherman Act offences prosecuted by the Antitrust Division,
according to a recent statement by the Division.
Other federal and state prosecuting agencies, notably the Criminal Division of the
Department of Justice, will not be immune from prosecution under this plan.
Leniency applicants should not expect to utilise the Leniency Program as a way to dodge
punishment for non-antitrust crimes, the Antitrust Division warns, notwithstanding its
encouragement to disclose both antitrust and non-antitrust offences.
It is important for criminal applicants to consider the probable advantages of leniency from
the Antitrust Division against the risk that other government authorities would pursue charges
for non-antitrust offences, in light of the Division's reasoning." The fact that the Criminal
Division's immunity rules vary greatly from the Antitrust Division complicates this already
complex equation.
The Corporate Leniency Policy divides leniency into Type A and Type B. It is only possible
to provide leniency of Type A when the Antitrust Division has not received any fresh
information concerning the alleged activity in question. Even after the Division begins an
inquiry, leniency of Type B, which has less advantages, may be obtained.

The following criteria apply to Type A leniency:

 At the time that the company comes forward with its information, the Division has not
received any information regarding the activity from any other source;
 As soon as the company became aware of the activity, it took prompt and efficient
measures to terminate its involvement in it;
 The corporation reports wrongdoing candidly and openly, and cooperates fully,
continuously, and totally with the Division throughout the inquiry;
 The admission of wrongdoing is actually a act which is business rather than separated
confessions by specific professionals or officials; the organization tends to make
restitution to hurt events where feasible; therefore the business didn't coerce any kind of
celebration to take part in the game and had been obviously maybe not the first choice or
originator associated with task.

If your organization is given Type A leniency, it will be issued leniency for several
administrators, officials, and staff members whom acknowledge their particular participation
within the assistance and breach aided by the Antitrust Division's research. Present changes
towards the Division's often expected Questions emphasise that these people will never be
safeguarded should they usually do not work totally utilizing the Division's research. Those
people would be 'eliminated' through the conditional leniency page for the reason that
circumstance. The sample business leniency this is certainly conditional's section 4 details the
particular circumstances under which administrators, professionals, and workers meet the
criteria for leniency security.
Type B leniency is contingent upon the following conditions:

 As the first to reveal the behaviour, the company is eligible for leniency.

 When the company reaches the courtroom, the division lacks evidence to warrant a
conviction.

 Upon becoming aware of the behaviour, the firm acted swiftly and effectively to stop its
involvement.

 The company discloses wrongdoing openly and comprehensively, and cooperates fully,
continuously, and completely with the division to advance the investigation.

 In contrast to individual CEO or authority admissions, the acknowledgment of

wrongdoing is a corporate act.

 When feasible, the company offers restitution to victims; and The division determines
that such leniency would not be unfair to others, considering the nature of the behaviour,
the confessing corporation's participation in the activity, and the timeliness of the
organization's admission.

If a business is eligible for Type B leniency, its directors, officers, and employees will be
considered for criminal immunity, according to Antitrust Division rule. Previously, the
Division considered Type B applicants' eligible workers equally to Type A applicants'
eligible employees. The Division's Frequently Asked Questions were revised in January 2017
to reflect this modification, indicating that the Division may remove "current directors,
executives, and workers who are seen as being particularly responsible." According to the
Antitrust Division, eniency must be totally earned. Some workers may opt not to cooperate
with their employer's attempts to obtain leniency on behalf of the corporation as a result of
this change.
Any director, officer, or employee of a liable company who self-reports a violation is eligible
for Individual Leniency. If the business requests it, individual directors, executives, and
workers may be considered for leniency. The Individual Leniency Policy imposes on the
director, officer, or employee three restrictions:

 The Division hasn't obtained any details about the experience becoming reported from
just about any supply during the time the person comes ahead to report it;
 The wrongdoing with candour and completeness, and cooperates aided by the Division
totally, continually, and totally through the entire research• the person reports
 While the person failed to coerce another party into playing the experience, and obviously
wasn't the first choice in, or perhaps the originator of, the game at that time the in-patient
comes forward to report it.

In accordance with a declaration posted because of the Antitrust Division in January 2017,
previous administrators, officials, and staff members of the business which has been awarded
leniency this is corporate presumptively precluded from any honor of business leniency." The
Division insisted it was under no responsibility to exhibit mercy to virtually any previous
administrators, professionals, or any other unit officials into the months preceding over to this
proclamation. This is their particular place during those months. You are able that previous
administrators, officials, and staff members will select not to ever work with or provide
information towards the Division as a result of this modification. This will be because of the
fact that there's a extremely opportunity which is bit they'll be given leniency due to this
modification.

The Act includes conditions for leniency, which suggest that "the Commission may, it is
known that the Commission does not enforce a less heavy punishment under any conditions if
it's pleased that any producer, vendor, supplier, investor or service supplier contained in any
cartel, which can be purported to have broken area 3, makes the full and real disclosure in
accordance into the so-called violations and therefore such disclosure is crucial, impose upon
such producer, vendor, supplier, investor or service supplier an inferior punishment than that
which will usually be enforced upon such producer, vendor, provider, investor or service
supplier once the report of a query which was bought under part 26 is obtained because of the
Commission ahead of the disclosure is manufactured. This might be specified when you look
at the statute.
In inclusion, the Commission might only enforce a smaller punishment for a producer,
vendor, provider, dealership, or service supplier who's a participant regarding the cartel and
that has made the necessity full, honest, and product disclosures. Furthermore, in the event
that one who made the revelation will not continue steadily to work with all the Commission
through to the conclusion associated with the Commission's processes, the Commission will
likely not decrease the phrase. In the event that Commission is persuaded that the producer,
vendor, supplier, supplier, or service supplier mixed up in cartel took part in the behaviour
this is following a pendency associated with the procedures, it would likely:

(a) didn't adhere to the situation under that the Commission imposed the punishment which is
paid off or

(b) had offered proof this is certainly untrue or

(c) the disclosure cannot be crucial, then a producer, vendor, supplier, investor, or service
supplier are attempted of the offense in which the lower punishment ended up being enforced
and shall additionally be at the mercy of the imposition of this punishment to which
individual that is such have already been topic had the less punishment maybe not already
been enforced."

2.4 Beneficial aspects of Leniency Programs

According to the 1998 International Competition Network Working Group recommendations
on successful action against hard-core cartels, "hard core cartels are the most severe violators
of competition law." 4 Leniency programmes are undertaken with the goal of identifying
"Hard Core Cartels" (HCC). In return for the informant's assistance, a leniency programme
tries to control and identify cartels by giving an exemption or reduction in potentially harsh
penalties. Detecting cartels via leniency programmes establishes constraints on cartels by
raising the chance of sanctions being applied. These programmes have a disruptive impact on
future cartels since leniency will be granted only to the first lenient applicant. 5 These
programmes help in the investigation and prosecution of cartel members by supplying
evidence that would not otherwise be accessible and incentivize participating firms to provide
important information about the existence of additional cartels that may be investigated later.
The following are some of the advantages of leniency programmes:

 The leniency programme has a deterrent impact on cartel members because they are
continually threatened by an individual employee of the Organization or a competing
organisation disclosing their operations to enforcement authorities. As a result of the
Leniency Program, the cartel member's conspirators are more likely to be apprehended by
authorities.

 Exposure: Every business wants to create goodwill, which becomes a corporate asset over
time. If, on the other hand, the company is involved in illegal cartel activities and the
leniency programme is in place, the company risks being exposed not only to authorities,
but also to genuine competitors and colleagues who believe in the principles of
competition and market economy, resulting in the loss of years, if not decades, of
goodwill.

 Evidence gathering: In compared to other programmes, leniency programmes make it

easier to gather evidence against cartel formation at a lesser cost of investigation.

 Cooperation: It's fairly unusual for leniency programmes to require applicants to find
additional cartels in addition to their own, which may or may not be in their own country.
This increases collaboration between competition authorities.

 Reduced adjudication costs: It is a cost-effective technique that reduces time spent in

court proceedings since the offending company would rather not be found guilty and
would seek a reduced fine or none at all.

2.3 Leniency Program in India:

Section 46 of the Competition Act of 2002 in India applies a leniency programme. This
section empowers the Indian Competition Commission to levy penalties in line with Section
46 for breaches of Section 3 in cartel cases. The Competition Commission of India (CCI) is
mandated by the Competition Act of 2002 to examine suspected anti-competitive agreements,
including cartels.
However, under Section 46 of the Act, a person may petition the CCI for a reduction in the
penalty for a breach of Section 3 if the petitioner has submitted complete information about
the cartels.
It's worth mentioning that under this Section, any producer, seller, distributor, dealer, or
service provider, including cartels, is allowed to seek lower fines. Oral or written petitions for
lower penalties are accepted. 9 The Competition Commission may make rules to carry out
leniency programmes under Section 64 of the Act. The Competition Commission of India
(Lesser Penalty) Regulations came into effect in 2009. The Competition Commission may
apply penalties that are less severe than those provided in the Act under these rules. The
Competition Commission functions under a set of principles that are specified in its rules.
Information received by the CCI or Appellate Tribunal is regarded as secret under Section 57
of the Competition Act and is not disclosed unless obliged to do so by the Act or another
legislation in place at the time. Furthermore, such disclosure must be done with the approval
of the company. The Competition Appellate Tribunal may review any instruction or decision
given by CCI. 10 The application of lighter penalties under Section 46 of the Act is subject to
certain requirements. If it is proved that the conditions under which the lower penalties were
imposed on cartels were not followed, CCI may rescind or dismiss such smaller penalties,
and may impose a penalty on the member who was responsible but evaded the punishment.
The information needed to determine whether a party is eligible for leniency is contained in
the Act's Schedule, which includes relevant names and addresses, a description of the alleged
cartel agreement, the goods or services involved, the geographical market covered, the
cartel's start date and duration, the names and details of the individuals who, to the applicant's
knowledge, were involved in the cartel formation, and a list of evidences.

2.5.1 Quantum of Immunity under Leniency Provisions

The degree of exemption offered by leniency provisions in comparison to the penalties

provided by Section 27(b) of the Act, which allows for a penalty reduction of up to or
equivalent to one hundred percent of the original penalty. As long as the applicant first
discloses substantial disclosures that allow the commission to form a prima facie conclusion
regarding the existence of a cartel based on the facts presented, the commission will consider
the applicant's request to be granted. In addition, these fines may be enforced even if the
matter is being investigated by the Commission but the Commission is unable to prove that a
breach occurred because the applicant failed to provide relevant information. In addition to
this, it has the potential to be given in situations in which the commission has not previously
provided any benefit to any applicant as of the moment the application was submitted. In
addition, the second or third applicant may be eligible for a penalty reduction of fifty percent
or thirty percent, respectively, of the total leviable penalty for disclosing by submitting
material that stimulates existing evidence against the cartels. This is because disclosing
stimulates existing evidence against the cartels.

2.4 GOOD AND BAD CHARACTERISTICS OF COMPETITION LAW

REGIME ININDIA

A-GOOD CHARACTERISTICS-

The legislative framework is well-written and equipped to determine which behaviour is

likely to harm competition and which conduct is likely to promote a healthy competition
regime in the nation, hence improving the economy. The institutional infrastructure for
implementing competition law is always developing to meet the changing requirements of the
market. The commission is authorised by Section 17 of the Act to appoint experts and other
professionals to guarantee the commission's effective functioning and achievement of its
goals.

The competition commission has been highly active in finding anti-competitive practises in
the market thanks to its excellent monitoring of market players. For example, in 2012, the
CCI imposed a hefty penalty of Rs. 63.07 billion on 11 cement companies for alleged price
fixing, supply quantity control, and market share control with the intent to earn illegal profit;
similarly, in 2013, the BCCI was fined Rs. 522 crores for abusing its dominant position;
similarly, in 2014, Google was fined Rs. 10 crore for failing to comply.

Under Indian law, private parties are forbidden from suing the competition commission or
other tribunals with extensive authority. Due to judges' lack of expertise in microeconomics
and other aspects of competition law, private parties may seek to persuade the court, via their
lawyers or counsels, to adopt illogical and incorrect interpretations of the law, thereby
leading to bad consequences. As a result, arch rankings, data collection, usage, and sharing,
user review, and rating are all forbidden for private organisations. This is a promising step
toward effectively regulating e-commerce competition. In addition, the CCI has been
aggressive in assisting with the settlement of cases brought under the Insolvency and
Bankruptcy Code. In 2019, the commission assisted in the filing of 77 short form and 13 long
form documents, with several big transactions being concluded via remedies. The CCI has
also amended the Combination Regulation to include Regulation 5B, which permits parties to
complete the transaction by purchasing shares via public bids or the stock market. The
acquirer just has to inform the commission. The Competition Commission's regulatory
jurisdiction has been extended to include foreign issues, with any international agreement that
diminishes competition, raises product prices, has a detrimental effect on the country's local
players, and slows innovation being prohibited by the commission. The commission has the
right to interfere in anti-competitive arrangements even if there is a presumption that such an
agreement occurred amongst market actors. Parties, on the other hand, must be given a decent
chance to be heard and preserve their own hides. These agreements must be strictly
monitored since they are harmful to consumers and other market players.

B- BAD CHARACTERISTICS

Most areas of Indian competition law lack established doctrine. The nation must improve its
competition law jurisprudence. Work continues due to India's youthful administration.

The definition of abuse of dominance in Section 4 of the Act is vague. The per se approach is
left open. Counsels try to persuade the court to make illogical and incorrect legal
interpretations, which might have negative results. Private litigation should be banned. • In
India, the Competition Commission of India may set its own processes and guidelines, unlike
U.S. federal courts. With such power, the commission may create rules and processes that
help them fulfil their duties and resolve cases quickly.

Like the US, India has a leniency system in the shape of the Competition Commission of
India (Lesser Penalty) Regulation. This party must then make complete and honest disclosure
of all relevant facts including the participants, length of the cartel, and nature of the leniency
application. This treatment has been a huge success. Preamble to the Competition Act: "An
Act to provide for the country's economic progress." Notably, the prologue provides a clear
relationship between microeconomic functioning and bigger development imperatives.
Competition is a means to larger economic aims, not an end in itself.
As of the start of 2020, the competition commission has begun examining anti-competitive
practises in e-commerce. Recent results from the commission's "Market Study on E-
commerce in India" include significant e-commerce businesses, their features, and the
competitiveness in this industry. The document discusses the Indian competition
commission's strategy to punishing anti-competitive conduct. Counsels try to persuade the
court to adopt irrational and erroneous legislative interpretations. Private litigation should be
banned.

In India, the Competition Commission of India may set its own processes and guidelines,
unlike U.S. federal courts. With this much power, the commission may create norms and
procedures that help them do their jobs and resolve cases quickly.

Like the US, India has a leniency system in the shape of the Competition Commission of
India (Lesser Penalty) Regulation. This party must then make complete and honest disclosure
of all relevant facts including the participants, length of the cartel, and nature of the leniency
application. This initiative is a success.

The Competition Act's preamble reads, "An Act to promote economic growth." The prologue
links the microeconomic operation of a free market economy to its broader development
imperatives. Competition is a means to an end: accomplishing economic objectives. Since
2020, the competition commission has been targeting anti-competitive e-commerce practises.
The commission recently issued "Market Study on E-commerce in India," which analyses
significant e-commerce businesses, their characteristics, competitiveness, and other results.
The research discusses the Indian competition commission's method to control anti-
competitive behaviour in TOT open interpretational options between the per se approach and
the rule of reason. Cases aren't fast-tracked. The CCI takes years to determine a matter, and if
the losing party appeals to COMPAT and ultimately the Supreme Court, the process takes
much longer. The legal processes are also quite expensive and complex. As stated in
Competition Commission of India v. Steel Authority of India (2010), the Competition
Commission's actions must be completed within the time limit stipulated in the Act. In India,
the competition law does not intend to criminalise The Act has no criminal consequences.
This reduces the deterrent impact. Violators may easily avoid paying civil fines this way. To
sustain a good competition law system, just financial penalties and behavioural and structural
remedies are inadequate. Understaffed law enforcement agencies compete. The competition
commission's staff should be increased to speed up the process. Microeconomics and
competition law experts should be included. Problems may be remedied more faster by
increasing staff strength and competence. Indian antitrust law lacks a recognised agency to
monitor and investigate anticompetitive behaviour. The Competition Commission of India
has increased its workload and is moving slowly. A specialisedorganisation should examine
and monitor market competition practises, assess mergers and acquisitions, and present
extreme situations to the CCI for settlement.

CHAPTER 3

The Leniency Review: USA

3.1 INTRODUCTION
The Sherman Antitrust Act, 15 USC Section 1, provides the legal basis for the prohibition of
cartel activity in the United States, stating in pertinent part: "Any contract, combination, in
the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations, is declared to be illegal." The bulk of state legislation
and federal law impose criminal and civil sanctions on both organisations and individuals.
Few violations of Section 1 are often punished criminally, including agreements to influence
pricing, manipulate bids, or allocate markets. These three unique forms of agreements are
legally punishable because they are deemed particularly anticompetitive.
As implied by Section 1's wording, a Sherman Act violation requires an agreement between
horizontal rivals. The vast majority of agreements between competitors that directly affect
pricing are unlawful and subject to punishment. Parties may be criminally liable for
agreements to influence the result of a public or private bidding process or to abstain from
competing in a certain geographic or product market. These agreements are not need to be as
explicit as a formal contract. As long as there is a sufficient "meeting of the minds" to engage
in anticompetitive conduct, a contract may be formed. Direct or indirect evidence may be
used to prove this agreement.

A company may be fined up to $100 million, or double the illegal behavior's profit, or twice
the victims' losses, whichever is larger. In its most major cases, the Antitrust Division of the
US Department of Justice (the Antitrust Division or the Division), which is the chief
government enforcer of the law, is increasingly pursuing the latter sanction. Moreover, a
company convicted of cartel involvement may be barred from competing on government
contracts, a potentially crippling effect in some industries. Individuals may face fines of up to
$1 million and 10 years in prison. In the previous decade, the average sentence was 18
months, while the highest term handed to far was 60 months. The Antitrust Division demands
a jail term for any individual defendant, including a foreign person, who pleads guilty to a
Section 1 offence.

Principally, the Antitrust Division detects possible cartel agreements via corporate and
individual leniency programmes.

The Leniency Program incentivizes conspirators to turn up cartel members in return for
amnesty from prosecution and a limit on the amount of damages that private plaintiffs may
recover in future cases. The Antitrust Division examines just one leniency application per
conspiracy. Subsequent cooperators are not immune to prosecution, but normally face lesser
penalties and fewer executive indictments than non-cooperators.

In addition, the Antitrust Division's Leniency Plus Program (also known as Amnesty Plus) is
a significant source of investigation leads. If a company is being investigated for one antitrust
conspiracy but is too late to qualify for leniency for that conspiracy, it may be eligible for
considerable advantages under Leniency Plus if it discloses its participation in a related
conspiracy. The amount of the Leniency Plus discount is decided by a number of
circumstances and is largely up to the Antitrust Division's discretion. Leniency Plus has
generated numerous crucial investigation leads in high-profile antitrust cases, including the
Air Cargo and Auto Parts trials.

The Antitrust Division contains a vast variety of investigation tools, including wiretap power
and extensive subpoena jurisdiction. Antitrust Division officers routinely interact with other
law enforcement agencies, such as the Federal Bureau of Investigation (FBI) and United
States Attorney's offices, to capitalise on each agency's specialised knowledge. Additionally,
coordinated investigations between the Antitrust Division and the Criminal Division of the
US Department of Justice (the Criminal Division) have grown increasingly frequent,
especially in cases involving market manipulation involving foreign currency rates and
benchmark interest rates. Antitrust conspiracies frequently involve violations of other US
criminal statutes, such as those pertaining to obstruction of justice, lying to federal agents,
and fraudulent use of mail or wire communications, and the Antitrust Division frequently
includes these charges in its indictments to protect the integrity of its investigations. In other
cases, particularly those involving allegations of market manipulation, defendants have been
charged with wire fraud offences but not Sherman Act infractions.

As the global economy has grown more linked, cross-border cartel activity has increased,
demanding a coordinated response from several enforcement agencies. For identifying and
investigating violations, the United States relies on close cooperation with these agencies. On
September 2, 2020, for example, the Federal Trade Commission and the Department of
Justice (DOJ) signed the Multilateral Mutual Assistance and Cooperation Framework for
Competition Authorities with competition authorities from Australia, Canada, New Zealand,
and the United Kingdom. The Framework aims to "improve cooperation among signatories
and serves as the groundwork for an anticipated sequence of agreements that would let
signatories to exchange sensitive information and utilise coercive procedure to help one
another in conducting antitrust investigations." The DOJ and the Korean Prosecution Service
signed a memorandum of agreement on 18 November 2020 "to promote enhanced
collaboration and communication on criminal antitrust enforcement and policy." The Biden
administration has committed to retain its focus on international cartel action that impacts the
U.S. market, since it views such conduct as a principal means of breaching federal antitrust
laws.

In addition, the Antitrust Division seeks to extradite, via treaties and other bilateral
agreements, foreign criminals whose actions have a major effect on U.S. commerce,
notwithstanding its little success to far. Foreign defendants' prosecutions continue to depend
mainly on their voluntarily submitting to US court jurisdiction or being apprehended during a
visit to the United States. A Dutch individual, a former senior vice president of cargo sales
and marketing who participated in an air cargo price-fixing scheme, was extradited from Italy
to the United States in January 2020 in accordance with a judgement by the Palermo Court of
Appeal. In recent years, Italy was just the seventh nation to extradite a defendant in an
Antitrust Division case, and the second country to do so solely on the basis of an antitrust
accusation.

3.2 Types of agreements prohibited

Only activity that violates Section 1 of the Sherman Act may be tried criminally under US
federal antitrust law. The Antitrust Division prosecutes severe antitrust breaches, such as
price fixing conspiracies, bid rigging, and market allocation agreements. Such agreements are
prosecuted because they are very anticompetitive and extremely difficult to detect, requiring
the implementation of a strong deterrent campaign. As a defence to a criminal Section 1
allegation, it is inadmissible to assert that the agreement resulted in a commercially
acceptable price, had no impact on competition, or was required due to challenging market
circumstances.
Section 1 requires proof of four legal elements, regardless of the type of agreement at issue:
(1) concerted action (i.e., an agreement), (2) two or more competitors who are parties to the
agreement, (3) a trade restraint in the agreement, and (4) an effect on interstate commerce or
commerce with foreign nations as a result of the agreement. The Antitrust Division must
prove these elements beyond a reasonable doubt, the highest legal standard in the United
States.

What is a contract?
The first legal condition, evidence of an agreement, is essential to a Section 1 criminal
offence and is the primary focus of the vast majority of criminal cartel cases. The presence of
an agreement distinguishes between permissible and unlawful interactions between rivals. A
contract or compact between rivals may be explicit, such as a written contract or compact, or
implicit, such as an informal exchange of pledges or simply hints. As long as there is
sufficient 'common ground' between rivals on an anticompetitive move, an agreement may be
reached. Thus, an agreement amongst rivals may be demonstrated using either direct
evidence (such as a participant's remark) or indirect evidence (such as identical errors in bids
by purported competitors). The communication of market information, including knowledge
of current or anticipated price, does not violate Section 1. Notably, under Section 5 of the
Federal Trade Commission Act, some behaviour that does not violate Section 1 and does not
result in a contract or deceptive conduct, such as invitations to collude, may be prosecuted
civilly.

ii Competitors
Competitors are companies who operate in the same product and geographic market to the
extent that a price-fixing agreement between or among them is likely to impede competition.
Only distinct entities may engage into an agreement within the meaning of Section 1; several
controlled subsidiaries or divisions of a single corporation may not conspire to violate
antitrust laws. Despite the fact that joint ventures, standard-setting organisations, and group
buying organisations may include several independent entities, price and production
agreements are often reviewed civilly using the 'rule of reason'

iii Restraining trade

Section 1 is confined to restrictive trade agreements (i.e., have an effect on competition).
Typically, these agreements include price fixing, bid rigging, market allocation, and other
anti-competitive practises such as production reduction agreements.

iv Territorial reach
The Sherman Act is intended to encompass only actions that have a negative impact on U.S.
trade. In the last 25 years, there has been a worldwide expansion of cartel cases, impacting
sectors operating in both the United States and abroad. As a consequence, the Department of
Justice has strengthened its aid to other countries in disrupting and prosecuting transnational
cartel behaviour. In addition, it has presented difficult issues about the geographical extent of
U.S. antitrust laws, which courts have been unable to resolve. Through a 1982 statute, the
Foreign Trade Antitrust Improvements Act (FTAIA), Congress attempted to clarify its goal in
this area. However, subsequent litigation addressing the FTAIA has generated as many
interpretational difficulties as it has addressed. In Section III, these topics are examined in
further depth. ii.
3.3 GOOD AND BAD THE US CHARACTERISTICS OF ANTITRUST LAW
REGIME

A-GOOD CHARACTERISTICS-

The antitrust laws that are in place in the United States encompass wide and comprehensive
restrictions against behaviours that are anti-competitive. Only after a government agency like
the Department of Justice (DOJ), the Federal Trade Commission (FTC), or a Federal Court
has conducted an investigation and determined that such practises have the effect of lowering
the level of free market competition or establishing a monopoly through illegal means, which
in turn harms the market economy, can firms and corporations be prevented from engaging in
such practises. Only irrational conduct that obstruct free trade, establish monopolies via
unlawful methods, or have the effect of using illegal and unfair measures to retain their
monopolistic position may be restricted by the courts. Although the regulations do not
outright ban monopolies, they do forbid businesses from using unethical tactics in order to
obtain or keep their dominant market position. Therefore, genuine efforts by businesses to
achieve monopoly status through improved product quality, cost reductions in production,
and cost reductions in the goods and services they supply are highly encouraged for the
continued health of a free market economy. This can be accomplished through cost
reductions in production, cost reductions in the goods and services supplied by the business,
or a combination of these three.

The United States of America has put in place a powerful regulatory system to guarantee that
antitrust laws are followed in accordance with the letter of the law. The Antitrust Division of
the Department of Competition Bureau of the Federal Trade Commission has an
exceptionally large number of lawyers and other experts that specialise in microeconomics
and antitrust law enforcement. On a regular basis, they will offer declarations of policy as
well as suggestions. The structure of the law controlling antitrust allows for the imposition of
substantial penalties. the party responsible for violating the principles of a free market. The
courts double the amount of damages in the case by three, and if the losing party is a person,
he or she must additionally compensate the aggrieved party for court costs and litigation
expenses. This strategy discourages a party from breaching antitrust rules, since the costs
associated with doing so would be far more than the profits made via unfair practises. The
Department of Justice manages two separate leniency programmes, one for businesses and
one for individuals. These efforts are targeted for organisations and people that self-report
illicit market-distorting behaviours. As a consequence of the reporting, they escape criminal
prosecution. The method in which mergers and acquisitions are analysed and assessed is a
crucial component of the US antitrust law system. In the early years of the adoption of the
antitrust law regime, courts often declined to apply antitrust regulations to mergers and
acquisitions, as in Northern Securities Company v. United States (1904). In the years that
followed, other mergers were ruled unconstitutional by the courts. Although they had the
potential to improve the performance of the market economy, in practise they did not. 1973
marked the beginning of substantial changes in the composition of the US courts, with new
justices bringing a stronger grasp of microeconomics and other market rules to the bench.
This increased the quality and rationale of merger and acquisition decisions. In addition,
since the DOJ and FTC brought these cases before the courts after conducting their own
expert investigations, the courts have grown more reluctant to issue erroneous decisions.
Almost 97 percent of mergers and acquisitions survive the 30-day inquiry and evaluation
process. The remaining 3 percent of occurrences are investigated by authorities, which often
takes longer than 30 days and requires that businesses conform to extra compliance standards.
Such mergers may then be contested in court, or companies may strike an agreement with the
DOJ or FTC. Additionally, the DOJ and FTC's practise of publicising merger and acquisition
policy statements and recommendations promotes market participant businesses' openness
and responsibility. The government agencies disclose all essential regulations related to the
analytical techniques used to evaluate the effect of the merger on the public. Additionally, the
DOJ and FTC's practise of publicising merger and acquisition policy statements and
recommendations promotes market participant businesses' openness and responsibility. The
government authorities provide all relevant advice about the analytic processes used to
analyse the merger's impact on free market competition.

B- BAD CHARACTERISTICS-
In the United States, federal courts extensively depend on the DOJ and FTC's interpretations
of antitrust legislation, policy statements, and other guidelines, which have a beneficial
impact on legal governance. In cases initiated by the DOJ or FTC, judges have little trouble
enforcing the restrictions since they are strongly supported and backed by expert evidence
from government agencies. Only in situations involving private parties does the lack of
expertise of the judges become apparent. They are more prone to make bad decisions or
significant blunders while deciding situations. This will have a negative impact on market
performance. Lawyers who represent private parties are required to win their client's case, but
are not required to interpret rules and legislation in the public interest. Only in situations
involving the DOJ and FTC are decisions made with the national interest in mind, since
private parties cannot mislead the court via their attorneys. Correction of antitrust law
enforcement infractions by the courts takes far longer than desired. Periodically, they provide
policy statements and recommendations describing the methods and instruments they use to
determine the legality of mergers and acquisitions. Although the judges of the Federal
District Court are largely excellent attorneys and are not specialists in microeconomics or
antitrust law, they play an extremely important role in antitrust enforcement with the
Department of Justice and the Federal Trade Commission. The Department of Justice and the
help the courts. The Department of Justice and the Federal Trade Commission both have the
ability to sign antitrust agreements. At the Department of Justice, they are known as consent
decrees, while at the Federal Trade Commission, they are known as consent orders. Both of
these terms relate to the same thing. United States v. Otis Elevator Company was the case in
which the Department of Justice (DOJ) entered its first consent decree in 1906; thereafter, it
used consent decrees much more frequently following the passage of the Clayton Act of
1914, which states in section 5A that "no government-negotiated consent decree entered prior
to the taking of testimony shall be admissible as prima facie evidence to assist private parties
in recovering treble damages for injuries caused by a government-negotiated consensual
agreement." The Clayton Act Because of this, defendants decided to negotiate settlements
rather than continue the legal process and run the danger of losing the case. The companies
were able to preserve their resources, their prospective clients, and their overall goodwill as a
result of this. According to the records of such settlements, inducements were included in
about 30 percent of the Department of Justice's civil antitrust prosecutions between the years
1905 and 1909, and this percentage climbed to 73 percent between the years 1910 and 1954.
Up to the current day, a growing number of cases have been settled via the use of settlement
agreements. The permission settlement is assessed from a Federal area courtroom to ascertain
whether or not it was at the general public fascination with the scenario regarding the
Department of Justice ( DOJ. Having said that, when it comes to the Federal Trade
Commission (FTC), no such dedication of general public interest is created because of the
judge, and just municipal settlement this is certainly financial levied. The frameworks for
permission settlements tend to be almost identical in both the DOJ therefore the FTC. People
who break the guidelines regulating areas which can be free be held accountable for
considerable monetary charges under antitrust legislation, that has arrangements for this
function. The total amount of problems that have been initially granted, and they're going to
compel that the dropping party spend the winning celebration's judge prices as well as other
costs associated with the dispute in inclusion, the process of law will award the dropping
celebration 3 times. They are deficient in both microeconomics and antitrust law knowledge.
The duration of the court procedures is extended as a result of these additional elements,
which also have a role in the conclusion of the case. Because there is a lack of specific legal
principles that can be applied to similar facts in two different contexts, the vast majority of
legal precedents that were derived from earlier antitrust case rulings cannot be applied to
modern instances. This is because of the lack of precise legal principles. In addition, the
courts are still working to develop new conceptions of equity that may be used to deal with
cases that come up in a society that is undergoing fast transformation. As a direct
consequence of this, the antitrust legal framework is riddled with further uncertainty that has
not been resolved.

Even after over a century of development of the US antitrust law framework, judges are
prone to make grave errors in decision-making and produce undesirable outcomes. Due to the
judges' lack of experience, they frequently make erroneous arguments and reach erroneous
conclusions. Private parties litigating through their counsels occasionally demonstrate a
proclivity for luring the court to opaque findings that are unfavourable to free market
competition in the economy. To address this issue, private parties should be prohibited from
bringing antitrust law violations cases before the courts; such cases should be brought
exclusively by the DOJ and FTC.

• As of today, mergers and acquisitions cases are not resolved on the basis of their merits by
the FTC. Nevertheless, some corporations considering mergers elect to continue with the
merger process notwithstanding an FTC signal. The courts take an excessive amount of time
to settle antitrust matters. It takes around six months to list cases, and if a case is brought to a
jury, it will take at least two to three years for investigation and testimony to reach the final
stage. In the United States, addressing antitrust issues is often a long, time-consuming, and
complicated procedure. Given the dynamic nature of the U.S. economy, the amount of time
necessary to resolve disputes merits significant consideration. Observing the United States v.
Alcoa (1945) case, which was filed in 1937 but not resolved until eight years later. Alcoa was
expected to have a monopoly on the aluminium market, but after eight years, it was
discovered that it had just a negligible proportion. The court refused to impose a fine on
Alcoa, indicating that the fine would be collected over the following eight years. If hearings
can be held verbally rather than via written submissions, the author believes that things can
be addressed much more swiftly.

Additionally, twelve jury members are selected at random. Mergers and acquisitions cases
have not been decided on the basis of their merits by the However, some firms considering
mergers continue with the process despite indications from the DOJ or FTC that they plan to
challenge the deal in court. The temporary restraining order issued by the government
agencies is only in place until the merits of the lawsuit are decided. Due to the protracted
nature of these lawsuits, firms who lose them often seek a temporary restraining order or
negotiate a settlement with government authorities.

In the United States, antitrust laws are vast and include a wide range of actions that may be
regarded detrimental to competition in a free market. It is hard to determine exactly which
behaviours are illegal and which laws are breached at any given moment. Even practising
lawyers struggle to comprehend the antitrust statutes' vague language. The laws are so
outdated that they no longer reflect the court's current thinking process.
 CHAPTER 4

EVOLUTION OF COMPETITION LAW

4.1 BACKGROUND

While the word 'Renaissance' initially referred to a cultural movement that typified the time
between the 14th and 17th centuries, it has come to refer to a historical age that influenced
other parts of everyday life, such as commerce and competitiveness. During the Renaissance,
especially around the 16th century, international commerce began to flourish. Authorities
perceived the need to regulate commerce in order to foster a culture of justice and open
competition, despite the fact that most of this trade and the resulting income were illegal. The
Statute of Monopolies, the forerunner of contemporary patent rules, was enacted by the
English parliament in 1623. Prior to the Statute of Monopolies, authorities often abused
patent rules. Elizabeth I is documented in history as having given patents on common
household items like as salt and flour, so establishing monopolies on needs. In the years that
followed, several efforts were made to dismantle monopolies and enact legislation to promote
competition and free trade. However, people with noble intentions often discovered that
monopoly-maintaining merchants had the type of riches that bought them a favourable
standing with authorities. Other changes that finally contributed to the modernization of
competition law were restrictions on commerce. Restraint of commerce, as its name implies,
restricts parties from participating in comparable activities in competition with one another.
It is widely acknowledged that the Sherman Act (1890) and the Clayton Act (1914) – both
enacted in the United States – provided the basis for modern competition law. European
nations had a variety of regulations and legislation to govern monopolies and competition at
the time, but subsequent developments, especially after World War II and the collapse of the
Berlin Wall in 1989, are based on the Sherman and Clayton Acts. With the tremendous
expansion of international commerce in the 21st century, antitrust and competition rules have
had to keep pace. Following World War I, other nations began
implementing competition measures similar to those enacted by the United States.
Competition regulators were established to verify compliance with competition and antitrust
policies and regulations. After World Conflict II, the Allies enacted legislation to dismantle
the cartels and monopolies that had emerged during the war. This was mostly directed
towards Germany and Japan at the time. 7 In the case of Germany, it was suspected that
massive industrial cartels were handled in a way that allowed the Nazi dictatorship complete
economic control of the nation. In Japan, big business was rife with nepotism, culminating in
the dominance of multi-industry conglomerates over the Japanese economy. However, the
surrender of Germany and Japan to the Allied troops at the conclusion of World War II made
it possible to impose stricter regulations, which were modelled after those in place in the
United States. 8 In the United States, the word 'antitrust' is often used to laws prohibiting the
establishment of cartels, sometimes known as 'business trusts' 9 Although antitrust laws are
largely distinct from consumer protection laws, they do provide some protection for
consumers against unethical vendors attempting to dominate a particular area. Before being
approved, mergers and acquisitions are subjected to a thorough screening procedure in
accordance with antitrust and competition regulations.
As it attained its liberty in 1947, India has actually, when it comes to much better the main
one half which is subsequent, used and followed guidelines comprising what exactly are
referred to as Command-and-Control laws and regulations, guidelines, laws, and executive
requests. These guidelines are typically in spot since India attained its independency. One
particular legislation had been the Monopolies and Restrictive Trade Practices Act of 1969
(MRTP Act), that will be India's statute regulating competitors this is commercial. 10 1991
ended up being the entire year whenever considerable financial modifications had been
implemented, so that as an outcome which is direct the change from the command-and-
control economic climate to 1 this is more greatly in line with the axioms of no-cost
marketplace capitalism started in earnest when this occurs. In India, financial liberalisation
has had hold, together with need of a efficient competitors regime has additionally been
recognised. That is much like the scenario inside a real amount of various other countries.
Articles 3811 and 3912 regarding the Constitution of India served once the impetus of the
growth of competitors legislation in India. The concepts this is certainly directive of plan
consist of these Articles as being a element of the document. On the basis of the Directive
maxims, India's very first competitors legislation, that was used in 1969 and known as the
Monopolies and Restrictive Trade methods, 1969 Act, ended up being made to protect
customers from unjust company practises (MRTP Act). Articles 3813 and 3914 of their
Constitution of India mandate, on top of other things, that the State shall make an effort to
market the benefit of their people by securing and protecting as effectively, as it might, a
purchase this is personal which justice personal, financial, and governmental shall notify
every one of the establishments for the nationwide life, in addition to State shall, in specific,
direct its plan towards securing. In inclusion, Article 3813 mandates that the consistant state
shall attempt to advertise the benefit of those by securing and protecting since effectively as it
1. That the ownership of and control over the material resources of the community are
distributed in such a way as to be most beneficial to the common good; and
2. That the operation of the economic system does not result in the concentration of wealth
and means of production to the detriment of the common good. 15
The us government of India established a High Level Committee on Competition Policy and
Competition Law in 1999 october. The committee's mandate would be to advise a
contemporary competitors legislation of the nation that might be in accordance with
advancements happening for an scale this is certainly worldwide. Furthermore, the committee
had been assigned with promoting a framework this is legislative that may include the
development of a fresh legislation or proper amendments to your MRTP Act. In May of
2000, the Committee offered the nationwide federal government by way of a report from the
competitors plan it had drafted. In November of 2000, the changes which can be suggested
the legislation on competitors had been provided for the federal government for analysis. The
legislation this is certainly brand new referred to as Competition Act of 2002, ended up being
eventually authorized because of the Parliament in December of 2002 after undergoing
specific customizations as a consequence of the considerable consultations and talks that
were held with all the appropriate events.

4.2 COMPETITION LAW IN INDIA

The various areas of the Act cope with problems with respect to the development,
capabilities, and tasks regarding the Commission, plus the overall performance of
adjudicatory functions. This Commission features inquisitorial, investigative, regulating, and
adjudicatory authority, also to a specific level additionally has advising jurisdiction relative to
the framework for the Act. The problems must be dealt with and delivered to the reasonable
summary of pronouncing last rulings without having any unneeded wait so that you can take
into account the type associated with disagreements which have arisen due to the
arrangements of their Act along with the better interest which is community. If the there
exists a wait, its very possible that the goal and goal of this Act is going to be beaten, and it's
also impractical to rule the possibility away from considerable damage becoming triggered
into the no-cost marketplace and, for that reason, the economic climate of these country.
On the spot this is certainly initially you can find three major aspects which can be supposed
to be influenced by the effective use of the conditions of this Act. These aspects are
specifically dealt with on the Act's Sections 3, 4, and 6 together with areas 19 to 29. Included
in these are things such as anti-competitive agreements, abusing a situation this is certainly
dominating and controlling combinations, all of these possess prospective to get a
considerable unfavorable effect on competitors.
The Competition Commission of India, which was developed by the Central Government, is
assigned because of the obligation of working toward the realisation regarding the Act's
objectives and duties in this region. The fee is compelled to deal with this kind of scenario so
that you can stop the development of marketplace failure, which may in change damage the
marketplace because of this. The organization will attempt to undertake the next to help CCI
to perform its targets
1. place the customers initially by making sure the areas work inside their desires.
2. make certain there is certainly competitors this is healthier is reasonable on the financial
tasks that take destination when you look at the country so the economic climate may
increase faster you need to include more folks.
3. Put set up competitors guidelines utilizing the aim of attaining the many use which is
efficient of economic climate's sources.
4. Establish and develop effective associates and communications using the numerous areas
regulators to assure the positioning this is certainly smooth of varied sectoral regulating
principles in combination with all the competitors legislation.
5. so as to construct and develop a culture of competitors over the economic climate this is
indian it is important to efficiently perform completely competitors advocacy and express
information to all the appropriate stakeholders over the benefits of competitors.
The conditions regarding the Act being thought to be its "substantive arrangements" protect,
in essence, listed here four aspects of competitors:
• Anti Competitive Agreement (Section-3)
• Abuse of prominence (Section-4)
• combo regulation (part 5 and 6)
• Competition advocacy (part- 49)
Anti Competitive Agreements in India: -
The recently enacted Act is fairly over to time when compared with the statutory guidelines
which can be today becoming used both in the United States of America additionally the
United Kingdom. The arrangements for this Act, or even those regarding the Clayton Act of
1914 at the United States of America, The Competition Act of 1988 at the United Kingdom,
as well as the Enterprise Act of 2002 for the reason that nation all possess fairly comparable
legislative goal and way of administration simply put. Nonetheless, the terms of the
functions aren't almost exactly like what the law states this is indian regards to their particular
usefulness. The Office of Fair Trading (OFT) on the United Kingdom is basically
accountable for regulating duties, and the competitors Commission while the competitors
Appellate Tribunal have the effect of adjudicatory jobs. The Antitrust Division regarding the
United States Department of Justice associated with United States works together with all
jurisdictions within the topic of antitrust legislation. The principles competitors which is
regulating the way for which they have been implemented have actually advanced, be much
more stringent, where you can better effect during these two countries. The terms of those
anti-trust guidelines that connect with unlawful sanctions for specific violations, a higher
restriction which is upper the imposition of fines on business organizations, and the
extradition of people discovered responsible of development of cartels, ensure it is amply
obvious that the goal of these regulations would be to discourage folks from doing anti-
competitive behaviour. Here is the instance even though you can find even more breaches of
these laws in India as opposed to one other two countries, which both have actually far
greater amounts of situations that instantly attract the interest of this regulating and
organisations which can be adjudicatory.
SECTION 3- ANTI AGREEMENTS which are COMPETITIVE
(1) its unlawful for an organization, a link of businesses, someone, or a link of individuals to
enter any contract according to the manufacturing, offer, circulation, storage space, purchase,
or control of products or even the supply of services within India that creates or perhaps is
prone to trigger an impact which is anti-competitive. This can include any arrangement that
limits competitors or limits the power of customers to decide on between competing services
and products or services.
(2) to your level that what's needed of part (1) tend to be disobeyed, any contract this is
certainly created in infraction of these principles is null and invalid.
(3) Any arrangement made between companies or organizations of companies or people or
organizations of an individual or between anybody as well as a company, or any practise
continued by or decision produced by any connection of companies or organization of people,
including cartels, involved with identical or comparable trade of products or supply of
services, which: (a) right or ultimately determines buy or purchase rates; (b) restricts or
controls production, offer, areas; or (c) establishes or keeps a dominance or even a place
which is principal market
(d) causing quote manipulation or putting in a bid which is collusive right or ultimately,
Will probably be considered to truly have a considerable influence this is certainly
detrimentary the business competitors:
With all the proviso that absolutely nothing in this subsection will probably be construed as
signing up to any arrangement registered into by way of combined endeavors if this kind of
contract encourages performance at the manufacturing, offer, circulation, storage space, buy,
or control of products or perhaps the supply of services.
Explanation.-For the functions of the subsection, the term "bid rigging" means any contract
between businesses or persons known in subsection (3) involved with identical or
manufacturing this is certainly comparable trading of products or supply of services, that has
the result of getting rid of or lowering competitors for estimates, or adversely influencing or
manipulating the procedure for putting in a bid.
(4) Any contract between organizations or people who happens at numerous phases or
degrees of manufacturing chain in various areas, pertaining to manufacturing, offer,
circulation, storage space, purchase or rates of, or trade-in items or perhaps the supply of
services, including the annotated following:
(a) tie-in arrangement; (b) unique offer arrangement; (c) exclusive circulation arrangement;
(d) refusal to deal; (age) selling cost upkeep,
(m) ―practice‖ includes any training concerning the holding on of every trade from a
individual or an enterprise
(o) ―price‖, in regards to the purchase of every items or even to the overall performance of
every services, includes every consideration this is important whether direct or indirect, or
deferred, and includes any consideration which in place pertains to the purchase of every
products or even to the overall performance of every services although basically regarding
any kind of matter or thing.
The Act doesn't establish the term "anti-competitive agreements" per se; however, part 3
recommends some activities that might be anti-competitive, and area 2 regarding the Act
supplies a meaning which is wide of." Furthermore, the Act forbids functions which can be
specific are going to be anti-competitive (b). A prohibition which is basic any arrangement
regarding the manufacturing, offer, circulation, storage space, purchase, or control of
products or perhaps the supply of services by businesses is outlined in Section 3(1). This
supply forbids any contract that triggers or perhaps is prone to trigger an anti-competitive and
result which is monopolisticAAEC) in India.
An easy declaration that the arrangement made under section 3(1) is invalid accocunts for
section 3(2). Part 3(3) covers particular certain agreements which can be anti-competitive
practises, and choices created by people who provide identical or comparable items or
services and who're acting in show. By way of example, an understanding from a producer as
well as a producer or even a provider as well as a provider can be an exemplory instance of
this kind of contract. Part 3(3) additionally addresses activity this is certainly such by cartels.
The constraints which can be handled in part 3(4) are the ones which are enforced by
agreements between companies that are in numerous stages of offer or manufacturing, etc.
For-instance, an understanding from a producer as well as a provider. It preserves the legal
rights of proprietors of every intellectual home right reported it permits for exclusions in area
3(5) inside it to prohibit the violation of every of these liberties no matter part 3, and. Area
3(5) shields the liberties of proprietors.
Anti-competitive agreements tend to be divided in to two sorts, particularly, horizontal
agreements and straight agreements, in accordance with the competitors guidelines being
commonplace in any area associated with the world. When comparing to agreements which
can be straight horizontal agreements tend to be taken much more really by functions
included. Businesses frequently achieve agreements with the other person that carry the
possibility of stifling stress this is certainly competitive. Analysis the worldwide laws
company this is certainly regulating will unveil why these laws differentiate between
"horizontal" and "vertical" agreements between businesses.
Straight agreements are the ones that refer to a preexisting or connection which is feasible of
or attempting to sell to one another, while horizontal agreements are the ones which are
among competitors. The previous tend to be called horizontal agreements, together with latter
are referred to as straight agreements. The cartel is really a type this is especially harmful of
contract which could make the type of horizontal agreements. Straight partnerships tend to be
harmful if they're made between businesses being currently within a place which is principal
the marketplace. Straight agreements tend to be viewed much more favourably than
horizontal agreements under competitors legislation which are many. This will be because of
the fact that, on top, horizontal plans are more inclined to limit competitors than agreements
between companies having a purchaser-seller commitment. As the Act doesn't clearly utilize
the terms agreements which can be"horizontal and "vertical agreements," the language which
is used at the Act suggests that the agreements which can be described in parts 3(3) and 3(4)
tend to be horizontal and straight agreements consequently. It is critical to remember
subsection 3(3) and subsection 3(4) would be the main parts which can be mainly utilized to
substantiate the existence of any agreements being anti-competitive.

Misuse of the Dominant Position like a gun

In accordance with the Indian Competition Act, subsection 1 of part 4 states that "No

Enterprise shall misuse its position this is principal.

Whenever determining whether or otherwise not a business has actually misused the power
that is included with becoming within the place this is dominating you can find really three
measures to take into account. Determining the mark marketplace is the action this is very
first the process. The 2nd action is always to determine whether or if the worried endeavour,
business, or firm is within a dominating place, includes a huge level of marketplace power, or
possesses monopolistic power for the reason that marketplace this is certainly certain. The
action this is 3rd to find out set up organization this is certainly inside a principal place, has
actually considerable marketplace power, or dominance power features involved with
conducts which can be expressly restricted because of the statute, or that add up to an misuse
of principal position/monopoly or try to monopolise in infraction associated with legislation
which is in place.

In part 19 (5) regarding the Indian Competition Act, 2002, it's expressly so long as your
competitors Commission shall have respect this is due the appropriate product marketplace
along with the appropriate geographic marketplace when identifying whether an industry is
really a appropriate marketplace for the reasons of their Act. This supply had been included
following the competitors Commission ended up being set up. In line with the Act's area
roentgen this is 2(, the appropriate marketplace is understood to be "the marketplace that
could be based on the Commission with regards to the appropriate product marketplace or
perhaps the appropriate geographic marketplace or with regards to both." The terms "relevant
product marketplace" and "relevant location market" have each already been offered their
particular meaning inside the Indian Competition Act. In accordance with subsection (t) of
area 2, the product this is certainly appropriate is described as an industry that features all
those services and products or services which are regarded as compatible or substitutable
because of the customer because of the qualities for the product or service, the costs,
additionally the desired utilization of the product or service. The appropriate marketplace
which is geographical defined by Section 2 (s) being a market that consist of the region where
the problems of competitors of the way to obtain items or perhaps the supply of services tend
to be adequately homogeneous and will be differentiated on the conditions that prevail in
neighbouring places. Forex trading is regarded as becoming industry this is major.

The Indian Competition Act carries a concept of principal position which takes into
consideration set up enterprise this is certainly concerned in that position of financial power
that it could run separately of competitive causes or can impact the appropriate marketplace
with its favor. Especially, the meaning discusses set up marketplace is impacted by the
enterprise with its favor. Explanation (a) to Section 4 for the Indian Competition Act defines
place that is"dominant as "a situation of power, enjoyed by the enterprise, into the appropriate
marketplace in India, which allows it to- we work separately of competitive causes prevailing
within the appropriate marketplace or (ii) impact its rivals or customers or even the
appropriate marketplace with its favor." A situation this is principal thought as "a situation of
power, enjoyed by the enterprise, within the appropriate marketplace in India, which makes it
possible for it to- we work individually

In accordance with area 19 (4) of their Indian Act, the Commission may give consideration to
particular elements whenever deciding whether an enterprise is within a situation which is
principal. These elements through the enterprise's share of the market, the dimensions and
sources of the enterprise, the dimensions and need for rivals, the power this is financial of
enterprise including commercial benefits over rivals, straight integration regarding the
companies or purchase or service network of these enterprise, plus the reliance of customers
regarding the enterprise.
Even though presence of the share of the market this is certainly at or above a specified
amount provides increase up to a presumption of presence of the prominent place (even
though this presumption are rebutted), the Indian Act will not establish misuse of
prominence, which can be the most critical indicators that needs to be considered whenever
deciding whether or otherwise not a specific task is within a prominent place available in the
market this is certainly appropriate. According to the Indian Competition Act, part 4 (2) says,
"There will be an misuse of principal place relative to sub-section:
(1) In the big event that the enterprise:
(a) right or ultimately imposes an unjust or problem which is discriminatory the acquisition or
purchase of products or services; or
(ii) cost into the buy or purchase (including predatory cost) of products or services, the
enterprise is susceptible to the conditions for this part.
Explanation.— An unjust or discriminatory symptom in the acquisition or purchase of
products or service as labeled in sub-clause we as well as an unjust or discriminatory cost on
the buy or purchase of products (including predatory cost) or service as described in sub-
clause (ii) shall maybe not integrate such discriminatory problem or cost which might be
followed to fulfill your competition; or (b) restricts or restricts— I production of products or
supply of services or marketplace therefor; and for the reasons for this term
One of many differences when considering the UK Act, EC Law, together with Indian Act is
according to your UK Act and EC Law, the behaviours which can be specified may total
abusing a prominent place, but in line with the Indian Act, the behaviours which can be
specified shall add up to abusing a posture which is prominent. The meaning among the
distinctions. Both "practises leading to denial of marketplace accessibility" and "using
principal place within one marketplace to enter or protect, various other appropriate areas"
tend to be especially enumerated as conducts amounting to punishment of prominence into
the Indian Act; nonetheless, these conducts haven't been pointed out within the laws and
regulations associated with the UK and EU. The reason being the Indian Act is really a
legislation this is certainly domestic. The legislation of this United Kingdom therefore the
European Union forbids "applying varying terms to analogous deals along with other
commercial lovers, therefore placing all of them in a competitive drawback." Nonetheless,
this supply ended up being omitted against the Indian Act.

Combinations:
It offers maybe not however already been determined whether or otherwise not to alert people
of just one of the very most essential facets of CA, that will be Section 5, which describes
"combo" by determining limit constraints with regards to possessions and return. There's no
information this is definitive with regards to will likely to be placed into result. A mix is
recognized as becoming any buy, merger, or amalgamation that drops up the purview for the
thresholds at this stage over time. Listed here is a directory of the arrangements of Section 5:
The purchase of just one and up businesses by more than one people or even the merger or
amalgamation of businesses will probably be a mixture of such companies and individuals or
companies, if some of the next circumstances tend to be satisfied: (a) any purchase where- we
the events towards the purchase, becoming the acquirer as well as the enterprise, whoever
control, stocks, voting liberties or possessions are obtained or are increasingly being obtained
jointly have,- (A) either, in India, the possessions of these - (A) in a choice of India, the
possessions of the worth of significantly more than rupees four thousand crores or return of
greater than rupees twelve thousand crores; or (B) in a choice of India or India which is
outdoors possessions of the worth of a lot more than two billion United States bucks or return
of greater than six billion United States dollars.
Prior to Section 6, the Regulation of Combinations
Before Section 6 is caused, a exchange must, in essence, fulfil two problems: we it should
add complete possessions or revenue, with particular needs for regional and international
companies; and (ii) it should possess a commitment which is geographic India.
Underneath the type of CA 2002 that has been first passed away, the reporting of the combo
had been totally voluntary. Nonetheless, the act presently needs notice become offered inside
a amount of four weeks after the quality associated with panels of administrators of both
continuous businesses, or associated with the trademark of every contract or some other tool
for the intended purpose of doing the blend. The theory this is typical this industry is the fact
that a memorandum of comprehension or perhaps a page of intention will suffice to fulfil
what's needed regarding the term 'agreement.' Nonetheless, agreements in many cases are
finished in purchase setting on significant comprehension on the list of functions mixed up in
deal and also to offer the acquirer the capacity to do diligence this is certainly due. On the
basis of the link between the acquirer's research, extra speaks tend to be then performed.
Using this real point ahead, the execution of these a document may cause merger filings
become caused. This can bring about a rise in the expenditures involving conformity at an
phase this is certainly early it's still unidentified in the event that exchange are going to be
finished. As well as this, it shall subscribe to the hill of notice programs being submitted to
your competitors Commission. It's still unidentified set up competitors Commission need the
interior ability to process and make a firm decision such petitions in a fashion that is
appropriate. The wait may have a domino impact and weaken the capability of events to shut
timely if it doesn't possess sources. [Cascade impact] being a outcome, it could be smart to
come with a term in just about any exchange which is future noting that the finishing could
be contingent on any earlier regulating endorsement that could be required through the
competitors Commission. This could be a indisputable fact that is great it might be wise.
 CHAPTER 5
COMPETITION LAW: EU & UK

UK
The Fair Trading Act, 1973
In the interest of fostering an atmosphere conducive to open and fair competition, this
legislation was enacted in England. This act's primary emphasis was on limiting monopolies
in various industries.
A monopoly exists if one person or a group of people are able to gain the exclusive right to
engage in a certain trade anywhere inside the nation. On the other hand, the legislation allows
for some monopolies, such as the postal service's monopoly on the carrying of mail. Among
other things. If there is an agreement that grants control of commerce to one person or a
group of people, then this forms a monopoly that is intended to increase prices to an unfair
amount. It is not considered a monopoly if the control is legitimately achieved by individual
people over specified locations or categories of items for which there is an alternative
accessible.
The Monopolies and Mergers Act of 2002
The Fair Trading Act, which had been in existence since 1973, was repealed by the
Competition Act of 1998, which also came into effect in 1998. This piece of law was divided
into two portions, the first of which was known as the Chapter 1 prohibitions, and the second
of which was known as the Chapter 2 prohibitions. Both of these sections included
prohibitions.
The prohibitions that are outlined in Chapter 1 of the Act make it illegal for parties to enter
into agreements that do any of the following: fix prices, control production, share markets or
sources of supply, apply different conditions to equivalent transactions, and make the
conclusion of contracts subject to acceptance by other parties of supplementary obligations
that, by nature of commercial usage, have no connection with the subject matter of such
contracts. Every single one of these types of dealings is a violation of the law.
The following activities are forbidden according to Chapter 2: "Any endeavour that relates to
the abuse of dominating position is prohibited if it consists in: # Imposing unreasonable
buying or selling prices."
# Restricting either production or market growth or technological advancement
# applying different conditions to transactions with other trading parties that are otherwise
equal.
# making the completion of contracts subject to acceptance by other parties of supplemental
obligations that have nothing to do with the topic of contracts.
Investigation under this act Director General of fair trading may conduct an investigation if
he has reasonable grounds to believe that Chapter 1 and 2 prohibitions are infringed.
However no such power is given to director of CCI.
The concept of privileged communication as provided under Section 30 of the U.K
Competition Act is also not included in the Indian Competition Act. This non inclusion can
affect the right of the undertakings or legal or natural persons who are undergoing
investigation.
In India, we have competition law enforcement bodies in addition to sectoral regulators; this
fact poses a severe worry about the fact that cross-sectoral concerns are being handled in the
appropriate manner. For instance, a given component of an endeavour may be governed by
one agency, whilst the CCI may be responsible for regulating competition-related features. In
these kinds of circumstances, companies are understandably concerned about the possibility
of receiving contradicting directives from several regulatory agencies. There is also the
concern that the fact that they have to comply with multiple laws would lead to an increase in
the expenses incurred by businesses. There is no mechanism in place in India for
coordinating the various sectoral legislation with the Competition Commission of India. On
the other hand, a number of other sectoral regulators in the United Kingdom have the
authority to implement the Competition Act in conjunction with other pieces of law. The
Competition Act 1998 (Concurrency) Regulations 2000 were created with the intention of
coordinating the concurrent powers that are exercised and the processes that must be
followed. These regulations came about as a result of the Competition Act 1998. For
instance, the United Kingdom has something called a concurrence party, which is a meeting
at which all of the relevant regulators and the competition authority discuss and determine
which organisation is most suited to handle the situation.
Comparison of Enforcement Mechanism of U.K and India:
There are a few key differences in the way competition law is enforced in the United
Kingdom and in India, despite the fact that India follows the same line of enforcement
agencies as the United Kingdom. The following are some of them:

Although the Indian Competition Act addresses the topic of investigations, in contrast to the
United Kingdom's Competition Act, it does not address the power of the enforcement
authority to enter the premises of a business. This authority is addressed in Sections 27 and
28 of the United Kingdom's Competition Act. It is possible that the investigative process may
be impacted to a very great amount if such a provision is not included in the Indian
Competition Act.

The idea of privileged communication, which is allowed for in Section 30 of the Competition
Act in the United Kingdom, is not included in the Indian Competition Act either. This
omission might have an impact on the rights of the businesses, as well as the legal and natural
people, who are now being investigated.

In India, we have competition law enforcement bodies in addition to sectoral regulators; this
fact poses a severe worry about the fact that cross-sectoral concerns are being handled in the
appropriate manner. For instance, a given component of an endeavour may be governed by
one agency, whilst the CCI may be responsible for regulating competition-related features. In
these kinds of circumstances, companies are understandably concerned about the possibility
of receiving contradicting directives from several regulatory agencies. There is also the
concern that the fact that they have to comply with multiple laws would lead to an increase in
the expenses incurred by businesses. There is no mechanism in place in India for
coordinating the various sectoral legislation with the Competition Commission of India. On
the other hand, in the United Kingdom, in addition to the OFT, a number of sectoral
regulators have the authority to simultaneously implement the Competition Act. The
Competition Act 1998 (Concurrency) rules 2000 were created with the intention of
coordinating the exercise of concurrent powers and the processes that are to be followed.
These regulations were enacted under the authority of the Competition Act 1998. For
instance, the United Kingdom has something called a concurrence party, which is a meeting
at which all of the relevant regulators and the competition authority discuss and determine
which organisation is most suited to handle the situation.
Therefore, some of the differences between the enforcement mechanisms in India and the
United Kingdom have been discussed above.

EU
European competition law is the legislation governing competition in the European Union. It
fosters the preservation of competition within the European Single Market by regulating
anticompetitive business practises to prevent the formation of cartels and monopolies that
would be detrimental to the public interest.
The majority of contemporary European competition law is derived from articles 101 to 109
of the Treaty on the Functioning of the European Union (TFEU), as well as a number of
Regulations and Directives. Four primary policy areas consist of:
• In accordance with article 101 of the TFEU, cartels, as well as the control of collusion and
other anti-competitive actions.
• Dominance of the market, or the prevention of misuse of enterprises' dominant market
positions in accordance with Article 102 of the Treaty on the Functioning of the European
Union.
• According to the legislation governing mergers in the European Union, the following types
of transactions are prohibited: mergers, control of proposed mergers, acquisitions, and joint
ventures between firms that have a particular, specified level of turnover in the EU.
[1]
• State assistance, the regulation of direct and indirect help granted to firms by member states
of the European Union in accordance with article 107 of the Treaty on the Functioning of the
European Union

Comparison of Enforcement Mechanism of EC and India:

It is true that the Competition Act of India is heavily influenced by EC and U.K. legislation,
yet there are significant distinctions between the enforcement mechanisms of EC and India.
The following are a few:

Article 9 of Regulation 1/2003 of the European Community (EC) stipulates that if the
undertakings involved give promises to address the issues raised by the Commission in its
preliminary assessment, the Commission may bind the undertakings to these commitments by
decision. This action would result in time savings for the commission. However, the 2002
Competition Act does not have such a mechanism.

Article 14 of the Regulation requires the Commission to contact the Advisory Committee on
Restrictive Practices and Dominant Position before making any decisions. The Committee is
comprised of persons with expertise in competition-related concerns. However, there is no
such consultation clause in the Competition.

Act, although Section 17 of the Act allows the Commission to choose experts and
professionals for the commission's good functioning.

In addition, Articles 20 and 21 of the Regulation grant the Commission the authority to
inspect the undertakings and the associations of the undertakings. For this purpose, a duly
authorised officer may enter the premises of the undertaking, inspect the books and other
relevant records, seal the business premises, etc. In addition to the premises, the Commission
may also investigate any other location, such as the residences of directors, managers, and
other employees of the enterprise. However, there is no such provision for inspection under
the Competition Act. The Commission may only direct the Director General to investigate,
and the Director General has equivalent investigative authority under Section 36. (2).

In addition to the imposition of penalties under Article 23, the 1/2003 Regulation of the
European Commission also discusses the concept of periodic penalties, which provides for
compelling the enterprise to comply with the commission's decision under Articles 7, 8, 9,
17, 18(3), and 20(4), whereas the Indian Competition Act does not contain a comparable
mechanism.

In addition, the Act of EC provides for professional confidentiality, although the Competition
Act of India does not.

These are some of the most significant distinctions between the EU and Indian enforcement
processes.
ISSUES RAISED
The ultimate litmus test for whether or not a restriction is legitimate is whether or not it is the
kind of constraint that just controls, and possibly as a result, encourages, competition, or
whether or not it is the type of restraint that may discourage, or perhaps destroy, competition.
In order for the court to answer that question, it is customarily required to take into account
the specific facts regarding the company that is subject to the restraint, including its condition
both before and after the imposition of the restraint, the nature of the restraint, and the effect,
either actual or probable. There are a number of factors that are significant, including the
history of the constraint, the perceived harm, the motivation for selecting the specific cure,
and the objective or end that is being tried to be achieved.
In its purest version, the "per se" test asks whether the defendants participated in a "contract,
combination, or conspiracy" and if the agreement fits under a recognised "per se" category,
such as price fixing or market division. Under the "per se" criterion, the anticompetitive
impact is inferred once such an agreement is shown. At that point, all defences, including
efforts to show "reasonability," are ruled out. The "per se" approach may thus be seen as a
rule of evidence as opposed to substantive antitrust law. When sufficient indicators of
anticompetitive potential are present, a rebuttable presumption of unreasonableness may be
established. The "per se" rule represents the conclusion that the costs of discovering
exceptions to the general rule exceed the costs of sometimes condemning action that,
following closer study, may show to be permissible, i.e. that it is better not to consider any
defences to the activity. Consequently, "per se" restrictions have long been justified on the
grounds that some types of behaviour are so likely to be excessively anticompetitive that
examining defences would be a waste of time. From the perspective of administrative
efficiency and judicial effectiveness, the expense of investigating exceptional cases-the
genuinely "just" examples of such conduct-is not justified. Finally, it was asserted that "per
se" norms provided courts and the business sector with clear advice.
Section 3 (3) engages in presumption with the phrase "must be assumed to possess AAEC."
On the one hand, several governments have openly criminalised cartels and applied the per se
rule with respect to bid, rigging, and price fixing, among others. Regarding anti-competitive
behaviours in India, when the rule of reason is enforced, the issue remains whether this is
possible.
Section 4 CA discusses the misuse of a dominant position. In contrast, the Sherman Act
addresses monopolisation and monopolisation attempts. Attempts to monopolise are difficult
to show since intent is a fundamental factor. In industrialised nations, such anticompetitive
behaviour is treated as a criminal. Can the same standard be applied to India? Certain laws,
such as the Competition Act, the Indian Penal Code, the Evidence Act, etc., must be
effectively harmonised for this to occur.
Conflicts between CCI and other authorities may result in sectoral overlaps. For example,
under the Electricity Act of 2003, the Central Electricity Regulatory Commission has the
authority to issue directives to a licensee or generating company if it enters into an
agreement, abuses their dominant position, or enters a combination that is likely to have a
negative impact on competition in the electricity industry. Since the enactment of the
Competition Act, this has been a subject of continuous controversy. Nonetheless, the issue
remains unresolved.
The Combination Regulations do not permit the withdrawal of a file should the circumstances
surrounding the combination alter. Given that obtaining permission from CCI might take up
to seven months, there is a chance that the material presented with the forms will become
obsolete or irrelevant by the time approval is actually granted. There is also the chance that a
change in market conditions or circumstances might necessitate that the parties withdraw
their application. It is thus feasible for a combination to withdraw its application if, owing to
external causes, it no longer falls within the ambit of the Competition Act. The law is silent
on the matter.
 CHAPTER-6

JUDICIAL DECISIONS
6.1 CASES EXPLAINED IN BRIEF

1. Nagrik Chetna Manch vs. Fortified Security Solutions and Ors

On 1st May 2018, the Competition Commission of India ("CCI") issued its third leniency
order in the case of Nagrik Chetna Manch vs. Fortified Security Solutions and Others (Case
No. 50 of 2015), granting partial leniency to four out of six leniency applicants involved in
bid rigging in five tenders floated in 2014 by the Municipal Corporation of the City of Pune
("PMC") for "Design, Supply, Installation, Commissioning, Operation." By decision dated
29th September 2015, the CCI instructed the Director General ("DG"), its investigative arm,
to undertake an inquiry and deliver a report after determining that a prima facie case existed.
With the CCI's approval, the DG ultimately enlarged the scope of the investigation to
encompass four more firms, notwithstanding the original limitation of the investigation to
two enterprises. Between August 2 and 5, 2016, the CCI received leniency requests from
Mahalaxmi Steels ("Mahalaxmi"), Sanjay Agencies ("Sanjay"), Lahs Green India Pvt. Ltd.
("Lahs Green"), Ecoman Enviro Solutions ("Ecoman"), and Raghunath Industry Pvt. Ltd.
("Raghunath"). It was submitted by the sixth party, Fortified Security Solutions, on
September 20, 2016. ("Fortified").

According to the investigative report issued by the DG on November 23, 2016, Ecoman was
the lowest bidder in each of the five examined auctions, while the other five participants
placed cover offers. In addition, the owners/managers of the aforementioned businesses were
either relatives or had strong personal links. Mahalaxmi, the initial applicant for leniency, and
a few other bidders did not even operate in the relevant market because they were engaged in
a wide range of other trades and industries, such as steel trading, drug distribution and
stockists, sales and services of electronic security systems, health and medical equipment, etc.
However, they had participated in PMC tenders and filed cover bids.
Several of these organizations shared an office address supervised by a single person, as
indicated in the parties' leniency applications and/or uncovered by the DG throughout the
course of the investigation. Even the 'contact information of a person responsible for the
offer' that bidders were required to provide during the online tender submission procedure
were duplicated for several bids. In addition, the Demand Drafts ("DD") that were needed to
accompany the bids as earnest money deposits ("EMD") contained consecutive serial
numbers, suggesting that they were issued on the same day by the same bank, despite the fact
that the bidders' offices were situated in separate cities. In addition, these DDs for EMD were
issued by debiting the account of a common person. Multiple bidders had submitted the
tender documents using the same Internet Protocol address ("IP address"), and their log in
and log out timings were quite similar. Even some of the bidders' IP addresses were linked to
the same mobile phone, suggesting that the tender papers were filed from the same place by
the same person. In addition, it was discovered that Ecoman's owner received the digital keys
from PMC's office on behalf of other bidders. In view of the aforesaid, the DG concluded that
the bidders colluded and participated in bid rigging/cartelization in each of the five bids.

On August 30, 2017, a copy of the DG's investigation report was delivered to the parties, as
well as their officials identified by the DG as engaged in bid rigging / collusive bidding, for
the purpose of registering objections / suggestions, if any. Moreover, the CCI heard from the
parties on November 16, 2017.

Contentions of the parties during the proceedings before the CCI:

While the parties agreed with the results of the DG's report, they defended themselves with
several arguments. Their contributions mostly consisted of the following:

Since the parties are not involved in "identical or comparable commerce in goods or supply
of services" and are not rivals, Section 3 of the Act does not apply. In addition, some of the
parties argued that, in light of the Supreme Court's guiding principles in Excel Crop Care
Limited v. Competition Commission of India and Anr. 2017 Comp. LR 0355 (SC)
regarding'relevant turnover,' no penalty could be imposed on them because they
lacked'relevant turnover' or'relevant profit' because they were involved in businesses other
than the infringing product.

That their rights and reputations were affected as a consequence of the violation of the
'confidentiality' given to them as petitioners for leniency, in that their remarks made during
the investigation and contained in the DG report were leaked to other parties, even before
they were examined by the CCI.

Because the e-auction bids were accessible to all bidders, entry was not limited by any
putative agreement/cartel that might reasonably be anticipated to have a substantial adverse
impact on competition. In addition to Ecoman, the L-1 bidder in each of the five bids, it was
asserted that no other qualified bidder participated in PMC auctions between 2013 and 2015,
despite the extension of the deadline. It was asserted that the alleged cartelization only
happened to prevent PMC from extending the bidding period. Thus, it was claimed that PMC
experienced no real loss and that Ecoman did not exclude other competitors from the market.

In addition, the parties urged the CCI to consider the following arguments: that the DG
learned of the details of the actions complained of through the Lesser Penalty Application
they submitted; that they did not receive any consideration from the L-1 bidder; that they
were unaware of the Act's provisions; and that they have never engaged in cartelisation, bid
rigging, or proxy voting.

In order to get the greatest reduction in penalties, requests were made for a comprehensive
evaluation of their considerable value addition as well as the harm caused to them by the
procedural errors.

Analysis by the CCI:

Concerning the applicability of Section 3(3) of the Act in the said instance, as none of the
parties are engaged in "same or comparable trade in goods or supply of services," the CCI
rejected the parties' claim and reached the following conclusion:

“…In the instant case, the Commission is of the view that it is the business activity of the
parties that they are actually bidding for and the one regarding which the violation of law
has been alleged which is relevant for the purpose of the applicability of Section 3(3)(d) Act
rather than any other business activity(s) parties ‘were’ or ‘are’ engaged in. If the parties
were allowed to escape the grasp of the Act by considering them as not competitors on the
pretext that they are actually engaged in varied businesses, it may defeat the very purpose of
the provisions of Section 3(3) (d) of the Act. Any construction other than this would mean that
new entrants are totally exempt from the provisions of bid rigging for the reason that they are
or were not involved in that business at the time of bidding. …”
As regards the issue of breach of Confidentiality, the CCI held:

As regards the issue of reputational harm, the CCI held that “the parties are claiming
reputational harm not simply because some confidential information was disclosed in the
investigation report of the DG but more because such information was disclosed to the public
at large. In this regard, the Commission observes that it is well recognized fact that the
investigation report is not a public document and is not to be shared with public. This aspect
is enshrined in Regulation 47 of the Competition Commission of India (General) Regulations,
2009 (hereinafter, ‘General Regulations’), which clearly provides that the proceedings
before the Commission are not open to public, except where the Commission so directs. In
the instant case, there being no direction to make proceedings open to public, there was no
question of sharing the investigation report of the DG with public”. In addition, the CCI
reasoned that, despite this regulatory provision, the Informant, who had shared the
investigation report with the media, was directed to file an undertaking that the contents of
the investigation report, as well as other information, documents, and evidence obtained
during the proceedings, would not be disclosed to any person who is not a party to the
proceedings or used for any purpose other than the proceedings under the Act, which were
subsequently filed. In light of the above, it was determined that the accusation that the
DG/Commission incurred reputational damage as a consequence of its actions/omissions was
false.

The CCI also rejected the parties' argument that there has been no discernible harm to
competition in India. In this respect, the CCI noted that, according to Section 3(3)(d) of the
Act, bid rigging must be deemed to have an unfavourable impact on competition regardless
of length, intent, and whether or not the cartel really resulted in a benefit. The CCI further
noted that the accused parties "have not been able to disprove the abovementioned
assumption nor demonstrate how the impugned conduct resulted in advantages accruing to
consumers or advancements in production or distribution of products in issue."

Moreover, with regard to the argument that, because bid rigging did not restrict entry, there
was no appreciable adverse effect on competition and, therefore, no violation of Section 3(3)
of the Act, the CCI noted that 'the mere possibility that other bidders could have bid for the
tender does not exonerate the colluding OPs from their conduct of bid rigging. The
explanation to Section 3(3) of the Act makes it clear that bid rigging encompasses agreements
that have the effect of decreasing competition for bids or negatively impacting or
manipulating the bidding process. It would thus be a violation of Section 3(3)(d) of the Act
even if a fraction of bidders colluded to rig or influence the bidding process.

Penalty Order:

The CCI determined that all six accused parties participated in bid rigging/collusion in
contravention of the provisions of the Act. In line with Section 27 of the Act, a monetary
penalty of 10% of their average yearly income for the previous three fiscal years was
imposed. However, while deciding the severity of the penalties to be imposed on each
accused defendant, the CCI took into account the amount to which leniency applicants
assisted in the investigation's conclusion.

Regarding Mahalaxmi, the first petitioner for leniency, the CCI noted that she had
continuously assisted the investigation and acted expeditiously. In addition, the CCI
acknowledged its role in revealing the existence of a cartel that fixed bids in a few of the
tenders. Despite being the first to submit a leniency application, the CCI concluded that
Mahalaxmi was only eligible for a 50 percent reduction in sentence since it submitted its
application after certain material had already been acquired.

Concerning Sanjay, the second applicant for leniency, the CCI highlighted that it exposed the
cartel's modus operandi by disclosing the identities of individuals associated with Ecoman,
the cartel's ringleader, and by producing copies of crucially relevant e-mails. Consequently,
the CCI decreased its penalty by 40%.

Regarding Lahs Green, the third leniency application, the CCI highlighted that the company
offered evidence that helped to the exposure of the cartel's bid-rigging plan for specific bids,
information that Mahalaxmi and Sanjay did not supply. Consequently, the CCI agreed to cut
the penalty by fifty percent.

Regarding Ecoman, the fourth leniency applicant and the L1 bidder in all tenders, the CCI
observed that the majority of the cartel-related information/evidence was already available to
the DG when Ecoman filed the leniency application, and that the only value addition Ecoman
made was in connection with the purchase/acquisition of digital keys by its owner for
uploading bid documents on behalf of other bidders to the PMC's website. Despite the fact
that the Director of Ecomanorganised the cartel and emerged as the L1 bidder in all five bids,
the CCI opted to decrease Ecoman's fine by 25% owing to its cooperation throughout the
investigation, contribution to the cartel's formation, and position within the cartel.
Regarding Raghunath and Fortified, the fifth and sixth leniency petitioners, respectively, the
CCI found that their disclosures offered no value to the investigation and, thus, did not
deserve a fine reduction.

In line with Section 27(b) of the Act, the CCI additionally assessed fines of 10% of the
official's or person's average wage for the previous three financial years on those who were
found to have violated Section 48 of the Act.

Regarding PMC, the CCI criticised the corporation for failing to detect cartelisation in its
own bids. Evidence such as a bidder downloading one of the offers from PMC's IP address,
call data records of conversations between PMC personnel and the L1 bidder, and other
persistent mistakes on PMC's part show that its activities may have facilitated bid rigging in
these five contracts. In addition, it was reported that PMC did not conduct a thorough
assessment of the bid papers. Even though there were several obvious signs of collusion, such
as similar IP addresses, a same owner/director, the same office location, and consecutive
serial numbers for DDs, PMC did not consider these when determining the eligibility of the
bids. In a few cases, an ineligible bidder was allowed to participate despite having the needed
expertise in solid waste management and not being recognised by any manufacturer as a
supplier of composting technology. Thus, the CCI uncovered egregious acts of omission and
conduct on the part of PMC that either consciously or unknowingly aided bidders in
cartelisation. As PMC's activities did not contravene Section 3(3)(d) of the Act, it could not
be held liable under Section 3 of the Act.

Examination of the Order:

The CCI distinguished for the first time between the confidentiality accorded to the identity
and information provided by a leniency applicant under the CCI (Lesser Penalty)
Regulations, 2009 and the confidentiality accorded by the DG to information/evidence
gathered by the DG during an investigation pursuant to Regulation 35 of the General
Regulations, such as those gathered through oral examination of parties and the issuance of
notices to parties. Consequently, it determined that the confidential treatment given by the
Lesser Penalty Regulations does not apply to evidence gathered or collected by the DG, even
if the evidence is supplied by a Lesser Penalty Applicant. This looks to be an unnecessarily
complex interpretation, which may discourage participants from submitting leniency petitions
due to the increased risk of exposure and class action litigation. In addition, it is unknown if
the DG, consistent with the provision granting confidentiality under the Leniency
Regulations, would grant confidentiality under the General Regulations; it is possible that
these provisions will not be read together or interpreted harmoniously by the DG, thereby
discouraging parties from actively seeking protection under the Leniency provisions.
Consequently, cartel behaviour may persist for a longer length of time than it would
otherwise.

In contrast to the decision dated 19 April 2018 in the Zinc carbon dry cell batteries cartel case
(Suo Motu Case No. 02 of 20), in which the CCI granted leniency to all three charged parties
despite the fact that the information/evidence on the cartel provided by two of the applicants
did not result in'significant value addition,' the CCI has decided not to grant any reduction in
monetary penalties in the present case.

In addition, the CCI has rejected reductions to two of the parties, despite the fact
thatthey'supported and cooperated with the investigation/inquiry throughout and accepted
material demonstrating the cartel's mode of operation and evidence in their possession or
control.'

In the case of Zinc carbon dry cell batteries, the CCI's procedure seems to be in disagreement
with its directive. Thus, although the recent judgement reflects the CCI's tightening stance, it
is contradictory since it applies different criteria to similarly situated parties under the
leniency provisions.

In addition, this decision indicates the CCI's preference for the timeframe in which the
leniency application was submitted. In this case, the first leniency applicant received a 50
percent reduction in the penalty, as opposed to the Zinc Batteries case, in which the first
leniency applicant received a 100 percent reduction, because the leniency application was
filed at a very late stage after the investigation had begun and substantial evidence had been
gathered by the DG.

In this instance, the CCI has interpreted the term "turnover" in conformity with the purposes
of the Act. It did so without respect for the Supreme Court's ruling in Excel Corp Care, which
defined "turnover" under Section 27 of the Act as "relevant turnover." The CCI properly
decided that, "given the peculiar conditions of this case, where OPs admittedly submitted
cover bids but are not engaged in solid waste treatment, i.e. the activity for which bid-rigging
occurred, the Excel Crop Care case's definition of "turnover" would not apply." It is unclear,
however, whether CCI's interpretation of Section 3(3) of the Act would apply in cases other
than bid rigging, such as when enterprises do not operate in the same horizontal relevant
market, or a related vertical market, or another adjacent market, but are nevertheless involved
in cartel activities on the horizontal market, either as facilitators or co-conspirators, as in the
case of.

Conclusion:Generally speaking, the CCI gave a well-reasoned and exhaustive ruling. There
is now a clearer understanding of how the CCI will interpret and implement the different
sections of the Act. Developing uniform legal instruments to confront the cartel danger,
maybe backed by a strong antitrust whistleblower programme, is an urgent need.

2. Other Cases

Other key cartel enforcement judgments were made in India during the last year, in addition
to the Bill and draught plan.

In December 2020, the Supreme Court upheld the NCLAT and CCI's decisions, dismissing a
lawsuit against taxi aggregators Ola and Uber (collectively, the OPs) for engaging in
anticompetitive practises, including ruling that the OPs' business model was a hub-and-spoke
cartel (the cartel allegation). The CCI was notified that the OPs were allegedly using their
various pricing algorithms to establish rates amongst their drivers, so facilitating a cartel.
Without the pricing system, it was suggested, drivers would compete on price, prohibiting
them from charging high rates (as calculated by the algorithm). The CCI rejected the case,
stating that for a hub-and-spoke cartel to exist, there must be a conspiracy to regulate prices,
which suggests collaboration. The inclusion of drivers to the algorithmically generated
pricing of the platform cannot be considered collusion. The complainant appealed to the
NCLAT, which noted, among other things, that the cartel allegation was based on a class
action lawsuit filed in the United States in accordance with US antitrust laws and could not be
imported directly into India, particularly given that the OPs' business model in India did not
manifestly restrict price competition among cab drivers to the detriment of riders. It was
recognised that the first case was filed in a foreign antitrust jurisdiction, which was inherently
separate from and could not be transferred into the Act's framework for addressing
competition issues. The NCLAT thus upheld the CCI's ruling and rejected the appeal. The
complainant, infuriated, challenged the NCLAT's decision to the Supreme Court, which
supported the NCLAT and CCI's determinations regarding the cartel allegation.
In February of 2021, the CCI ended its probe into domestic airlines, including Jet Airways,
Indigo, Spice Jet, Go Air, and Air India. Following a letter from the Lok Sabha Secretariat
(i.e., the lower house of Parliament's Secretariat) requesting to determine if there was
evidence of cartelisation in the aviation industry, the CCI took suo moto notice of the case
and sent it to the Director General for inquiry. However, after a comprehensive investigation,
the DG found no evidence of cartelization in the aviation industry. The CCI upheld the DG's
findings, noting that although the airlines used comparable pricing software and algorithms,
significant manual intervention by revenue management personnel was required to determine
the algorithm and prices for each airline in response to unforeseen events such as cyclones,
sporting events, and cultural events. There were insufficient data to support the assumption of
coordinated software activity amongst airlines.

In February 2021, the CCI found the Federation of Publishers and Booksellers Association of
India (FPBAI) guilty of cartelisation for establishing the Good Offices Committee. The
inquiry was initiated by CCI in response to a complaint from a subscription agent. The CCI
affirmed the DG's findings, noting that the FPBAI engaged in anticompetitive conduct by
capping the amount of discounts offered by its members to buyers and issuing advisories
instructing members not to participate in certain procurement advertising, thus limiting and
controlling the supply of books, journals, and other materials in India's market for the supply
of books, e-resources, and print journals. The CCI ordered the FPBAI and its officials to
discontinue any further cartel conduct immediately. In addition, the FPBAI and its executives
were penalised 0.03 million rupees by the CCI.

In March 2021, the CCI found home appliance vendors guilty of cartelization and bid rigging
in bids conducted by the Pune district of Maharashtra's rural government entity. The Pune
district published bids for the supply of sewing machines to "behind classes," women, and
handicapped persons residing in rural areas. A complaint was filed with the CCI by the
People's All India Anti-Corruption and Crime Prevention Society. The CCI concurred with
the DG's findings, stating that the dealers engaged in bid rigging by agreeing among
themselves on the prices to be offered for tenders. The CCI uncovered smoking-gun evidence
of collusion, such as the use of the same Internet Protocol (IP) address to submit bids for
tenders, call data records, and the non-objective payment of tender costs from the same bank
account. The CCI fined each vendor of home appliances one million rupees and each police
officer 10,000 rupees.
The CCI received a complaint against the Amateur Baseball Federation of India (ABFI) in
June 2021 from the Confederation of Professional Baseball Softball Clubs (CPBSC) for
alleged abuse of dominance in preventing its affiliated state baseball associations from
dealing with unrecognised bodies, preventing players from participating in such bodies'
events, and threatening to take action against players who did participate. While the CCI
found a prima facie case against ABFI for abusing its dominant position by imposing unjust
conditions and denying other bodies or federations market access, it also determined that
ABFI's conduct warranted a thorough investigation for limiting or controlling the provision
of services by other bodies or federations in violation of Section 3(3) of the Act. The CCI
granted CPBSC a provisional remedy barring ABFI from prohibiting its players from
engaging in tournaments organised by other organisations or federations and prohibiting
ABFI from threatening players desiring to engage in such activities. 14 The DG is conducting
an inquiry on the incident at now.

In June 2021, the CCI found the Tamil Film Producers Council and the Telegu Film Chamber
of Commerce guilty of engaging in anticompetitive conduct. The CCI initiated the inquiry
after receiving a complaint from an unnamed source. The CCI established a prima facie case
that film organisations and their officials advocated for a boycott of new film releases in
Tamil Nadu by:

a. limiting the supply of new films, which affects exhibitors, producers, and several film
industry craft practitioners;

b. limiting competition among Tamil film producers by establishing a release regulation

committee; and prohibiting film exhibitors from dealing with digital service providers of
their choice.

The CCI upheld the findings of the DG and inter alia noted that:

a. The Tamil Film Producers Council issued boycott calls to Tamil film producers and even
encouraged other trade associations to join the call for strike action;

b. and the Telegu film producers of the Telegu Film Chamber of Commerce decided
collectively to issue a call for strike action and to cease film releases in Tamil Nadu.

Additionally, the CCI stated that trade associations are critical in advancing the interests of
their members and the industry they represent; yet, because members are often rivals, they
must be cognizant of the antitrust concerns associated with association membership. As a
result, the CCI urged the associations and their officials to halt and desist from
anticompetitive behaviour but imposed no monetary penalty in light of the strike's nature,
duration, and degree of participation.

The CCI found eight axle bearing manufacturers guilty of cartelisation and bid rigging in bids
held by Eastern Railway (ER), one of the Indian Railways' 18 zones, between 2012 and 2014.
The CCI launched the investigation in response to ER's complaint. The CCI discovered
smoking-gun evidence of conspiracy in the form of emails, call detail records between axle
bearing manufacturers, and admissions made in depositions by firm officials regarding
pricing and quantity allocation decisions made inter se while bidding for the ER tenders.
Although the CCI found that the axle bearing manufacturers engaged in bid rigging, it
decided against imposing penalties due to mitigating factors such as the axle bearing
manufacturers' cooperative and non-adversarial approach in admitting their involvement and
coming forward to seek leniency, the axle bearing manufacturers' small revenue, limited staff,
lack of awareness of the law, and the economic shock caused by Covid-19 on the liquidity
and credit needs of the axle bearing manufacturers.

In October 2021, the CCI found engineering service providers guilty of cartelisation and bid
rigging in tenders for the restoration of drilling well sites held by GAIL (India) Limited
(GAIL). The CCI opened the investigation in response to a complaint filed by GAIL. The
CCI upheld the DG's findings and noted that the engineering service providers had agreed to
coordinate their bid submissions by using a common IP address, from the same location, and
in quick succession. As a result, the CCI directed engineering service providers and their
officers to cease and desist from anticompetitive behaviour and, noting that imposing
behavioural corrections on market participants would serve the larger cause of market
correction, imposed a'symbolic penalty' on the service providers.
 CHAPTER-7 DATA
ANALYSIS AND
FINDINGS
7.1 Data analysis

7.1.1 Competition Law in India v/s USA

7.1.1.1 Evolution of Competition Law in India

The Monopoly and Restrictive Trade Practices Act of 1969 (MRTP) was conceived upon and
written more than four decades ago. It was a direct effect of the Command-and-Control
policy approach that the government used. It was passed into law in order to prevent the
consolidation of economic power, to control monopolies, and to outlaw monopolistic,
restrictive, and unfair business practises.

7.1.1.2 Origin of MRTP Act

People have been considering and drafting the Monopoly and Restrictive Trade Practices Act
of 1969 for more than 40 years at this point (MRTP). It was a direct consequence of the
command-and-control strategy that the government used to the formation of policies. It was
founded for a variety of reasons, including to prevent the concentration of economic power,
to regulate monopolies, and to prohibit monopolistic, restrictive, and unfair trade practises.
Those are only few of the reasons.

7.1.1.3 Leap from MRTP Act, 1969 to Competition Act, 2002

The regulatory environment for businesses in India underwent a sea change as a direct result
of the economic reforms implemented in the 1990s. The Monopoly and Restrictive Trade
Practices Act (MRTP) of 1969, sometimes referred to as the Sherman Act, has undergone
periodic revisions in order to keep up with advances in technology and business practises.
Despite these improvements, it was determined that the MRTP framework was not enough to
fulfil the requirements of an economic environment that is undergoing fast change.
In his speech presenting the 2009 budget, the Minister of Finance, Yashwant Sinha, made the
following declarations: "As a consequence of developments in world economics in relation to
competition regulation, the MRTP Act has become out of date in a number of different
industries. We need to shift our emphasis away from regulating monopolies and toward
increasing the amount of competition in the market. The administration has come to the
conclusion that it is necessary to establish a committee in order to investigate such a broad
range of issues and formulate a new competition legislation that is suitable for our present
situation." The government decided to form the High Level Committee on Competition
Policy and Law, which Mr. S. V. Raghavan was appointed to chair. The purpose of this
committee is to provide advice to the government regarding the formulation of a new and
efficient competition law as well as the recommendation of appropriate revisions to the
MRTP Act, which was passed in 1969.
During the meeting that took place in May of 2000, the Committee presented a report and
offered several suggestions. After the conclusion of the review and comment period in 2002,
the Act was finally approved for passage into law. As a result of the committee's
recommendations, the Government of India received a "draught" of the competition
legislation in November 2000, and the Competition Bill was presented to the Parliament of
India the month after that. The measure will be reviewed by the Standing Committee on the
Judiciary, which has been assigned to it. After the ideas made by the Standing Committee
were taken into account and adopted, the Competition Act, 2002 was finally able to be
enacted by the Parliament in December of the same year. On January 13, 2003, President
George W. Bush put his signature on the Competition Act, making it a law. It took effect the
day after Bush's signature was placed on the document. According to the Statement of
Objects and Reasons that was attached to the Competition Bill, this legislation is India's
response to the opening up of its economy, the removal of regulations, and the resorting to
liberalisation that has occurred over the past few years. This enactment was added to the
Competition Bill. In a case that was decided under the Act, the Supreme Court stated that the
primary goal of competition law is either to remedy some of the situations in which the
activities of one or two firms lead to the breakdown of the free market system, or to prevent
such a breakdown by establishing rules by which competing businesses can compete with one
another. This statement was made in reference to a case that was decided under the Act (or
both). The Act has made it possible for India's framework for competition to conform to
international norms, which was previously impossible. The Act's primary goal is to prevent
practises that have a negative impact on competition, to protect the interests of consumers,
and to ensure the freedom of trade carried on by other participants in markets. The Act's
secondary objective is to maintain competition in markets, to protect the interests of
consumers, to ensure the freedom of trade carried on by other participants in markets, and to
prevent practises that have a negative impact on competition. The primary objective of the
Act is to prevent practises that have a negative impact on competition.
The constitutionality of the Act as a provision of the constitution was called into doubt by the
Supreme Court not long after it was voted into law. The primary premise for contesting the
Act was the nomination of a retired bureaucrat as the chairman of the Commission, which
was given judicial authority by the legislature. As a result of an agreement with the
government, the Competition Act was revised, and the competition authority, which had been
envisioned as a single entity in the Act's earlier iterations, was split into two:

1. The Competition Commission of India (CCI) as an administrative expert body; and

2. The Competition Tribunal (COMPAT) to carry out adjudicatory functions.

The Act lays down provisions to control various forms of anti-competitive practices and it
also has an extra-territorial reach.

7.1.2 Enforcement Structure:

7.1.2.1 US vs India

In contrast to the enforcement framework in India, which is made up of only one piece of law
and one agency, the enforcement framework in the United States is made up of a number of
agencies and several pieces of legislation. Antitrust laws are largely enforced by the Antitrust
Division of the United States Department of Justice (DOJ) and the Federal Trade
Commission in the United States. These two government agencies share primary
responsibility for the enforcement of antitrust laws (FTC). It is essential to keep in mind that
the former organisation is a component of the executive arm of the government, whilst the
later organisation is an autonomous administrative body, analogous to the CCI.
The Sherman Act, which was enacted in 1890, has the distinction of being the oldest federal
antitrust legislation that is still in effect today. It focuses mostly on anti-competitive
agreements made by firms as well as monopolies that such businesses maintain. The Clayton
Statute of 1914 outlaws, among other things, some corporate actions such as exclusive
supply, mergers, pricing discrimination, and tying. The act also prohibits certain other
business practises. Both the Sherman Act and the Clayton Act are enforced in their respective
spheres by the Department of Justice and the Federal Trade Commission respectively. The
Department of Justice is the only agency that has authority to investigate this subject, unless
of course the breach is connected to a criminal investigation or prosecution.

7.1.3 Anti-Competitive Agreements

According to the wording of Section 3(3) of the act, businesses that offer equal or identical
products or services, as well as cartels, are not allowed to enter into anti-competitive
agreements or engage in anti-competitive actions. This prohibition applies to both the
companies and the cartels. According to the requirements of this section of the Act, it is
presumable that the practises in question have an impact on competition that is materially
detrimental, since these practises are carried out by that category of businesses. They are
considered offences because the Act classifies them as such.
Both the Sherman Act's Section 1 and the Treaty of Paris' Article 101 include clauses that are
comparable to one another and may be found in the same place. It does not seem that any
other part of the Act provides a definition for the phrase "appreciable unfavourable effect on
competition." On the other hand, while calculating AAEC, one must take into account the
reasons listed in Section 19 (3) of the Act. The objective of the legislator, which is reflected
in the obligatory wording of Subsection 19 (1) of the Act, is that the CCI is required to carry
out an investigation that takes into account both the anti-competitive impact of the agreement
and the pro-competitive foundation of the agreement. It's interesting to note that the Act's
strategy for balancing competing interests is analogous to the rule of reason analysis that can
be found in the jurisprudence of competition law in the United States and the European
Union. In spite of the fact that the Act makes no distinction between horizontal and vertical
agreements, it is abundantly clear from reading the wording of Sections 3(3) and 3(4) that the
former is meant to apply to horizontal agreements while the latter is designed to apply to
vertical agreements.
As contrast to all other agreements, which have to be analysed in line with the rule of reason
analysis provided by the Act, horizontal agreements are deemed to have AAEC inside India
in accordance with Section 3 (3) of the Act. Abuse of Dominance
It is against the law for any business to take advantage of their dominating position,
according to Section 4 (1) of the Competition Act of 2000. When we talk about a company
having a dominant position in the relevant market in India, we imply that they are in a
position of strength, which allows them to do the following things:

1. Maintain autonomy in relation to the competitive elements present in the applicable

market.
2. Affect favourably either its rivals or its customers or the market that matters to it.

The kinds of behaviours that qualify as an abuse of a dominant position are outlined in the
Act's Section 4 (2) (a), which may be found here. The Act prohibits all forms of abuse,
including exploitative abuse and exclusionary abuse, all of which are included on the list of
abusive behaviours that are covered by the Act. The most prevalent form of abusing a
dominating position in India is charging unfair or discriminatory charges on identical
products or services, either directly or indirectly via the use of a dominant position. This may
be done in a number of different ways. In addition to that, it encompasses the implementation
of trade conditions throughout the delivery of products or services to end users. The lists of
abusive behaviours that are specified in Article 102 of the Treaty of Rome are quite similar to
the kinds of abusive actions that are outlined in the Act. Section 2 of the Sherman Act, which
is part of the body of antitrust laws, makes it illegal to have or seek to have a monopoly. The
Act, in contrast to the Sherman Act, which details the kinds of actions that qualify as
monopolisation or attempts at monopolisation, does not detail the activities that qualify as
monopolisation. Instead, the Act just prohibits activities that meet certain criteria. It has been
decided by the Supreme Court of the United States that it is against the law to acquire or
retain monopolistic power by unethical methods, since this violates Section 2 of the Sherman
Antitrust Act. An inquiry conducted in accordance with the Act begins with a determination
of the right product and geographic market, much to how investigations are carried out in the
European Union and the United States.

7.1.4 Merger Regulation

The operational regulations that must be followed for the purpose of controlling combinations
are found in Sections 5 and 6 of the Competition Act, which was passed in 2002. Notification
of the proceedings was made available by the CCI in the form of the Combinations
Regulations, 2011, which was published in 2011. The Act and the Combination Regulation
together provide a comprehensive framework for the regulation of mergers and acquisitions
in the country. In accordance with the Act, a combination includes any merger or
amalgamation of one or more businesses that is carried out by one or more individuals, as
well as the acquisition of control over one or more businesses by one or more individuals.
The Act creates a threshold below which a combination is not regarded to be a combination
and, as a consequence, does not come within the purview of the merger regime created by the
Act. Depending on the circumstances, the threshold might be stated in terms of either the
turnover or the assets. There are many criteria that come into play depending on whether the
combination includes an organisation or a group, as well as whether the firm or group in
question has its assets or revenue confined to India alone, or if they are global in scope. In the
United States of America, the Clayton Act, which was given further authority by the Antitrust
Improvements Act of 1976, is the statute that regulates mergers. The Clayton Act prohibits
mergers that are likely to result in a significant decrease in competition or that are likely to
result in the development of a monopoly under Section 7 of the Act. In the context of a
comparison between the control systems of the United States and India, the most notable
distinction is that the Central Competition Commission of India (CCI), which is an
administrative body, possesses the authority to approve or prohibit mergers, whereas the
United States system, which is judicially driven, requires the agencies to approach federal
courts in order to enjoin a merger. The Regulation (EC) No. 139/2004 of the Council governs
the Merger Control Regime that is in place inside the European Union. The law of the
European Union prohibits any concentration that leads to the formation of a dominant
position or the strengthening of an existing one. This is because such a concentration would
have the effect of materially and permanently impeding effective competition in the European
Community market or in a significant portion of it over the long term.
In general, mergers that include the European Union (EU) are examined by the European
Commission, whilst mergers that do not involve the EU are assessed by the competition
authority of the member state in which the merger occurs.
The Competition Commission of India (CCI), which is an administrative body, has the
authority to approve or prohibit mergers, whereas the United States system, which is a
judicially driven system, requires the agency to approach federal courts in order to enjoin the
merging of companies. This is the most significant difference between the control systems of
India and the United States.

7.2 Finding
Many applications may be filed at the same time by cartel members who have joined forces
to create a single cartel if multiple cartel members are involved. Consequently, there is a
considerable degree of confusion over the sequence of the line. This order is of the utmost
importance, since it has a substantial bearing on whether or not a fine or penalty will be
lowered. There is a lack of transparency, and concerns may be made regarding the criteria
utilised to promote one cartel member over another. As a consequence, the marker system
was established to reserve and safeguard the cartel member's place in a leniency queue for a
predetermined period of time. In response to such concerns, this safeguard was implemented.
This was also disclosed in order to enhance the efficiency and adaptability of the approach
and to promote the prompt reporting of cartel activity. In addition to other acts, the marker
system provides an incentive to blow the whistle. One of the issues leading to the
ineffectiveness of the leniency programme non the nation is the absence of a well-defined
marker system outside of India. In spite of the fact that Indian legislation stipulates that an
applicant should be "marked" after submitting an application to the Commission either in
writing (including e-mails, faxes, etc.) or orally44, the Commission has not enforced this
requirement. This remains unclear, however, owing to the lack of a concrete marker system,
under which a leniency applicant would only get a marker if he or she presented crucial
information that would allow for a historic change or the initiation of cartel proceedings. The
European Union's marker system, which was established in 2006, may serve as an example
for other nations. A marker system may also be useful for obtaining further information about
potential cartels that may arise in the future. Therefore, the capacity to recognise cartels over
the long run may be helpful.
CHAPTER-8 CONCLUSION AND SUGGESTIONS
8.1 SUGGESTIONS

The antitrust framework in the United States is already well-established and has reached a
more advanced stage of development than it is in India, where competition legislation is still
in its early stages. When India won its independence from the United Kingdom in 1947, the
United States had already finished developing the foundation of its antitrust law system,
which had taken 77 years to accomplish. It is far beyond the time for India to make use of the
extensive history that the United States has and incorporate a wide variety of beneficial
practises into its own governmental structures. The philosophy of "taking what works, and
leaving the rest behind" is one that India ought to adopt. This is the most effective strategy
moving forward. The following are some examples of possible suggestions that might be
made: It is feasible for India to adopt the practise of imposing treble damages on those who
violate the law that governs competition. This is something that has the potential to happen.
The Competition Act need to be amended in order to take this into account, and both the
Commission and the COMPAT ought to be given the ability to put it into effect. In the event
that one of the private parties wins their case in court, they will not only be reimbursed for
their legal bills, but they will also be awarded three times the amount of any damage they
have incurred as a result of the action. The purpose of this is to serve as a deterrence to those
individuals who choose to break the law. Because the CCI has the authority to determine its
own procedures and rules, this authority can be used to issue policy statements and guidelines
that disclose in detail what kinds of conduct are undesirable for free market competition,
what methods are used to determine anti-competitive conduct, and what other internal
mechanisms are used to regulate anti-competitive conduct. These statements and guidelines
can be issued because the CCI has the authority to determine its own procedures and rules.
Consider the following example to illustrate my point. adapted from the Merger Guidelines
provided in the United States by the Department of Justice and the Federal Trade
Commission As a direct consequence of these efforts, there will be more accountability as
well as openness. They would be able to function more effectively and with more enthusiasm
if a sufficient number of experienced and brilliant economists and lawyers are included in the
workforce of the institutions, which will provide a huge boost to the continuing development
of India's competition law regime. The legislative provisions of Indian competition law are
capable of being changed to be more explicit and clear-cut in their nature if relevant
amendments and judicial interpretations are implemented at appropriate intervals. Last but
not least, India need to strive on constructing an appropriate jurisprudence on competition
rules, in addition to clearing up any ambiguities that could be present in the law that is
already in effect.

8.2 CONCLUSION

After conducting an exhaustive study of all relevant laws in a variety of countries, we are
able to draw the conclusion that the antitrust laws of the United States, the European Union,
and India all have some similarities in their approaches to competition law. In general, the
basic notions that underpin competition laws are largely same across all jurisdictions, and
they have been embraced by all legislatures. This is because competition laws are intended to
protect consumers from unfair business practises.
On the other hand, each and every one of the laws include a range of provisions that make it
possible to put these particular principles into effect. When all of the laws are considered, it is
possible to reach the conclusion that they all implement the fundamental principles of anti-
competitive agreements, abuse of dominant position, and combination in a variety of different
ways. This is something that can be determined by taking into consideration all of the laws.
It is widely acknowledged that the formation of cartels is one of the most egregious breaches
of competition law. In an effort tominimise the number of cartels that are formed, the Indian
Competition Commission has initiated a leniency programme. However, the present design of
the leniency programme has a large number of security flaws that need for more research.
The identification of criminal conspiracies is the most challenging component of this
strategy. Effective strategies are a crucial factor in determining the identity of cartels, despite
the fact that cartels are notoriously tough to uncover. It becomes abundantly evident that
more stringent jurisdiction is necessary in order to discover these organisations when going
through the procedure of finding cartels in some of the instances. As a direct consequence of
this, criminal syndicates were not difficult to expose in regions where the law was strictly
upheld. In addition, in order to effectively fight corruption, it is essential to strengthen the
legal rules governing the imposition of penalties upon the discovery of hard-core cartels. In
addition to this, it is important to establish a leniency programme that is efficient, and it is
recommended that the potential of imposing penalties that are more severe be made public.
As a consequence of this, the Competition Commission of India (CCI) has made significant
progress in terms of the effectiveness of the leniency programme, and it should continue to
make efforts to enhance the programme in order to make it more successful in the Indian
competition law system.