Answer ... The Competition Act defines a ‘cartel’ as “an association of producers, sellers, distributors, traders or service providers who, by agreements amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or trade in goods or provisions of services”. Given that this is an inclusive definition, other concerted activities may also fall under the provisions on cartels.

Answer ... Agreements, decisions and similar arrangements/understandings between undertakings engaged in the same or similar trade of goods or provision of services that have the following are presumed to have an anti-competitive effect on competition and are therefore prohibited:

• directly or indirectly determining purchase or sale prices;
• limiting or controlling production, supply, markets, technical development, investment or the provision of services;
• sharing markets, sources of production or provision of services, types of goods or services, or number of customers in the market, or any other similar effects; and
• directly or indirectly resulting in bid rigging or collusive bidding.

An exemption to this presumption is provided to joint venture agreements if they improve efficiencies in the production, supply, distribution, storage, acquisition or control of goods or provision of services.

Further generic exemptions to the prohibition on anti-competitive agreements are provided to:

• agreements which restrain infringements of IP rights or impose reasonable conditions for the protection of IP rights; and
• agreements which relate exclusively to the production, supply, distribution or control of goods or provision of services for export.

Answer ... The liability under Indian competition law is civil in nature.

Answer ... The Competition Commission of India (CCI) can impose fines on companies and individuals which engage in cartelisation.

As per the Competition Act, the CCI can impose fines on persons or enterprises which are parties to the anti-competitive agreement. The term ‘person’ includes:

• companies;
• individuals;
• unincorporated bodies;
• corporations incorporated outside India; and
• all artificial juridical persons.

Further, the Competition Act provides that where a company has committed the contravention, anyone who, at the time of the contravention, was in charge of and responsible for the conduct of the business of the company, as well as the company itself, will be deemed to be guilty of the contravention and will be liable to prosecution.

Answer ... Yes, under the Competition Act, the CCI can investigate the conduct of foreign companies if such conduct has, or is likely to cause, an appreciable adverse effect on competition in the relevant market in India.

Answer ... Yes, the Competition Act has extraterritorial reach. Section 32 of the Competition Act states that even if an agreement is entered into outside India or if any party to such agreement is outside India, or even if any action arising from the agreement is outside India, as long as the agreement has or is likely to have an appreciable adverse effect on competition in the relevant market, the CCI has the power to conduct an inquiry into that agreement.

Recently, the CCI exercised its extraterritorial powers in the cartel case of Maritime Motor Vehicle Transport Services to Original Equipment Manufacturers, in which the CCI levied penalties on several Japanese maritime motor vehicle transport services companies even though the goods were not intended for Indian consumers (they were outbound for export).

Answer ... There is no limitation period prescribed under the Competition Act to impose fines on or initiate an inquiry into a cartel.