Answer ... Yes. The parties to a transaction can appeal orders or directions passed by the Competition Commission of India (CCI). The appellate authority is the National Company Law Appellate Tribunal (NCLAT).
The parties can appeal:
- the CCI’s proposal for modification, setting out remedies;
- the CCI’s decision to reject the parties’ counterproposal of remedies;
- the CCI’s final decision blocking a transaction; and
- CCI orders imposing penalties for gun jumping or failure to notify a transaction.
All orders passed by NCLAT can be appealed to the Supreme Court.
However, directions or communications issued by the CCI pertaining to its procedural review of a transaction - such as a notice under Section 29(1) of the Competition Act initiating a Phase II investigation, a direction to publish details of a transaction or inviting comments from the public on a transaction - cannot be appealed.
An appeal to NCLAT can involve questions of law and questions of fact, whereas an appeal to the Supreme Court is limited to questions of law.
Answer ... Yes. Under the Competition Act, any person aggrieved by a decision of the CCI can appeal to NCLAT. In Jitender Bhargava v CCI (Appeal 44/2013), the Competition Appellate Tribunal (COMPAT, the erstwhile competition appellate authority, which has since been replaced by NCLAT) clarified that an appellant must have locus in relation to the proposed transaction in order to challenge the CCI’s approval order. The appellant, a former executive director of Air India (the Indian state airway), had challenged the decision approving the transaction between Etihad and Jet Airways. COMPAT held that the appellant had no locus to challenge the decision, as he was a former airline employee (not currently associated with Air India) and therefore could not be ‘aggrieved’ by the decision.