India: The Need For Settlements And Commitments Under The Competition Act, 2002

The Competition Act, 2002 (Act) was enforced on 20 May 2009 and the Competition Commission of India (Commission) has been active ever since. The Commission was established to prevent practices having an adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets in India.

In order to curb practices which harm competition, the Commission has a wide discretion by virtue of Section 27¹ and Section 28² of the Act. However, invocation of the Section 27 and 28 is only after the inquiry by the Commission.

With the fear of competition laws increasing through industries, the question which practitioners have been facing is what is the remedy in case an entity realizes that it has violated the Act and seeks to settle these issues?

Presently, the only answer is that such an entity must face the Commission and there is no provision to settle and/or make a set of commitments which put an end to the proceedings. Though, Section 46 of the Act read with the Competition Commission of India (Lesser Penalty) Regulations, 2009 (LPR) enable an entity to seek lesser penalty in lieu of disclosure of anti-competitive activity and express admission of guilt, however such remedies are only available to parties who have been a part of cartels.

Thus, in order to keep up with changing times, the introduction of settlements and commitments must be considered, seriously.

What are 'settlements and commitments' under competition law?

Traditionally, antitrust proceedings against any entity can only end in two ways. The regulator can either find sufficient evidence of an infringement, in which case it would issue a cease and desist order and/ or impose appropriate fines to deter future similar behaviour; or it could close the case with a non-infringement decision.

However, competition authorities in many jurisdictions have a third option: they can accept remedies (or commitments) proposed by the parties to address the initial concerns identified by the regulator. If accepted, the commitments are binding on the party who submitted them, and no competition infringement is established³.

'Settlements and commitments' operate in separate spheres; however, the broad objective is the same, which is to put an end to antitrust proceedings.

Generally, the criteria that is applied while deciding if to accept a remedy/commitment are (i) the nature of the suspected infringement, (ii) the nature of the commitments offered and their ability to quickly and effectively solve the competition concerns, and (iii) the need to ensure sufficient deterrence. Agencies do not only consider the interests of the parties involved in the investigation but also take into consideration the interests of third parties and of the market in general⁴.

'Settlements' on the other hand are slightly different from commitments. Settlements are generally used in cartel cases⁵ and the competition regulator is required to establish an infringement of competition law which requires a full investigation as opposed to commitments which can invoked at preliminary stages of antitrust proceedings. Moreover, settlements require admission of guilt and can attract penalty upon the entity, as opposed to commitments⁶.

The Position in India and the Report of the Competition Law Review Committee (CLRC)⁷ and its views on 'settlements and commitments'

In India, as of date there are no provisions for 'settlement and commitments' with the Commission nor is there any provision by which an informant can withdraw the information once filed with the Commission.

Though, a Division Bench of the Madras High Court in The Tamil Nadu Film Exhibitors Association v. Competition Commission of India and Ors.⁸ had dealt with whether the scheme of the Act allowed parties to enter into a compromise or a settlement. The Court held that settlements were not prohibited under the Act as long as such settlements / compromises did not lead to the continuance of anti-competitive practices or would not be prejudicial to the interest of consumers or to the freedom of trade. The court also held that the scope of CCI's powers under Section 27 were very wide and conferred jurisdiction upon it to pass residuary orders.

Moreover, in Nhava Sheva International Container Terminal Pvt. Ltd. v. The Union of India & Ors.⁹, the Bombay High Court was informed that all disputes pending between the parties had been resolved by way of a Memorandum of Agreement. The Parties had agreed that no further adjudication of disputes raised were necessary and the Court directed permitted the informant to withdraw its case before the Commission and consequently quashed the order of investigation.

It is important to note that Commission has appealed against the aforesaid orders and it is believed that one of the grounds taken by the Commission is that the Act does not envisage provisions for settlements/ withdrawal of cases.

Though the report of the CLRC is not binding upon the regulator, the report examines the position of 'settlements and commitments' in reference to the Act and observes that such procedures are 'likely to enable the CCI to resolve antitrust cases faster and consequently, also free up its scarce resources. Further, businesses can avoid long investigations and uncertainty'.

The CLRC recommends that the Act should be amended to expressly enable the CCI to accept settlements from parties. That the settlement framework should be applicable for alleged contraventions of agreements under Section 3 (4)¹⁰ of the Act and Section 4¹¹ of the Act. The Application for commitments should be submitted after the initiation of investigation and should be submitted before the submission of the investigation report by the Director General, Commission (DG) to the Commission and the Commission should be vested with the power of reviewing its decision in case the concerned party acts contrary to the commitments.

Statistics suggest that the benefits of 'settlement and commitments' outweigh the negatives. For instance, Belgium indicated that the use of settlements allowed the Belgian competition Authority to reduce the average duration of procedures from 36 months to 22. The European Commission noted that on average a classic settlement case takes around 2.5 - 3 years, compared to the 5 years of ordinary procedures¹².

Since 2004 till mid- 2016, the DoJ and the FTC had resolved more than 95% cases¹³ (through consent decrees which are similar to commitments), the EC closed approximately 60% of its non-cartel antitrust cases by way of commitment decisions and within the EU, 23%¹⁴ of all cases by National Competition Authorities were resolved by commitments. In Italy, more than half of the cases were resolved by way of commitment decisions¹⁵. Thus, statistics fully support the mechanism. Moreover, even for companies, the mechanism has multiple benefits such as avoidance of high, unpredictable fines which can be imposed in infringement decisions including 'cease and desist' orders, reduction in risk of compensation claims (as commitments do not entail admission of guilt), helping companies to concentrate on their business rather than anti- trust cases.

Conclusion

The observation of the CLRC is a welcome step. In fact, news reports¹⁶ suggest that Government is planning to amend the competition regime to speed up the resolution of antitrust cases that various companies are embroiled in. Specifically, the Centre is said to be mulling a 'commitment and settlement' clause in the Act.

It is interesting to note that as per the Annual report of 2018-19, the Commission had imposed penalties of INR 13,768.42 crores (approximately USD 194 Billion) under Section 27 of the Act as on 31 March 2019, out of which it has recovered less than 1% and the reason stated by the Commission itself is that 'most of the orders of the Commission are under appeal before the appellate forums and/ or constitutional courts'.

Though 'settlements and commitments' alone will not improve such figures, however the contribution of such a mechanism will bring some day light and will definitely help the Commission and companies to resolve antitrust issues prevailing in the market in a better and time bound manner.

Footnotes

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