I. Institutional changes
- 2018 has been a year of change for the Indian competition regime ranging from the innocuous change in address of the Competition Commission of India (CCI) to the swanky new office block at Kidwai Nagar, to the government's decision to 'rightsize' the CCI by halving the number of its members to four to facilitate speedy approvals, in pursuance of the Government's objective of 'minimum government - maximum governance'.
- The constitution of the CCI also saw significant changes - two chairpersons, Mr. D.K. Sikri, and Mr. Sudhir Mittal (acting), and one member, former Judge of the Delhi High Court, Mr. G P Mittal, bid farewell to the CCI. Mr. Ashok Gupta, an officer of the Indian Administrative Service, was appointed Chairperson and will hold office until October 2022. Ms. Sangeeta Verma, of the Indian Economic Services (IES), was also appointed as the CCI's only female member, in place of Mr. Augustine Peter, who retired on 15 January 2019. Additionally, Mr. P.K. Singh was appointed the new Secretary of the CCI, following the retirement of Ms. Smita Jhingran.
II. Legislative changes
- On 9 October 2018, the Combination Regulations were amended for the sixth time since the inception of the merger control regime. Largely procedural in nature, and formalizing practices already in force, the 2018 amendment has provided the parties with the option to withdraw and refile a merger notification, and introduced a provision for Phase I voluntary modifications.
- On 06 December 2018, the CCI introduced an amendment to the General Regulations affecting the presence and role of an advocate during depositions conducted by the office of the Director General of Investigation (DG), the CCI's investigative arm. More on this later.
- Coming into its tenth year in force, the central government decided it was time to set up a Competition Law Review Committee to 'review the Competition Act/ Rules/ Regulations, in view of changing business environment and bring necessary changes, if required'. Sweeping changes appear to be in the offing if press reports are to be believed, but the report of the Committee will be one to watch out for in 2019.
III. Supreme Court interprets various concepts of Competition Law
(a) Jurisdiction of the CCI
- In its much-awaited judgment in the dispute between telecom entrant Jio and incumbents Airtel, Vodafone, and Idea, the Supreme Court cemented the primary jurisdiction of the sectoral regulator in sector-specific subject matters. Jio had earlier approached the Telecom Regulatory Authority of India (TRAI), and then subsequently the CCI, alleging that the incumbents were deliberately delaying and denying it points of interconnection, leading to congestion in its networks. The CCI initiated an investigation into the alleged cartel. This was challenged before the Bombay High Court, which held that since the present issue was governed by contracts falling within the purview of regulations issued by TRAI and the terms of their telecom licenses issued by the Department of Telecommunications, the matter squarely fell within the ambit of the TRAI's jurisdiction.
- The Supreme Court upheld noting that the matter could not be proceeded with by the CCI unless the TRAI and its appellate body had come to a decision on the underlying issues. However, once TRAI had made this assessment, and assuming it came to a conclusion that the incumbents did not abide by the terms of the regulatory contracts, the CCI could at that stage look into the question of concerted action between them.
(b) Anti-competitive practices
- On 01 October 2018, the decision of the Supreme Court in Rajasthan Cylinders v. Union of India furthered the understanding of parallel pricing by placing it in the context of the prevailing market conditions. The case arose when the CCI took suo motu cognizance of the matter based on an investigation report filed by DG in another case. The investigation report revealed that there was identical/ similar bidding by 50 bidders in response to a tender floated by public sector company Indian Oil Corporation for the procurement of LPG gas cylinders. The CCI concluded that the parties had reached an understanding to manipulate the process of bidding. This was confirmed by the appellate tribunal but the Apex Court disagreed.
- According to the Supreme Court, the nature of the market and the fact that the three public sector oil companies accounted for all cylinder purchases in the country, explained the reason for parallel pricing, and it was not the result of any concerted practice.
- In Fast Way Transmission, the Supreme Court held that the phrase "in any manner" used in Section 4(2)(c) of the Act had a wide import and must be given its natural meaning. Thus, once a dominant position has been established, whether a broadcaster is in competition with a Multi System Operator is a factor that becomes irrelevant, and the provision was applicable vis-à-vis a competitor as well as a consumer. Reference was made to the Explanation to Section 4, which states that the 'dominant position' is regarded as the ability to affect competitors as well as consumers. The definition of 'consumer' as provided under Section 29(f) of the Act would have covered the informant-broadcaster who was availing signal re-transmission services from the MSOs.
- The remaining portion of the judgment is however quite confusing – while on one hand the Court held that there had been contravention of the Act under Section 4(2)(c), it also upheld that the contravening conduct was 'otherwise justifiable'.
(d) Merger control regime
- In two separate judgments passed on 17 April 2018, the Supreme Court upheld the order of the CCI imposing penalties on Thomas Cook and SCM Soilfert. In Thomas Cook, a merger notification was filed for the transfer of the resorts and time share businesses, and approval was duly received. However, it was noticed that certain open market purchases, which according to the CCI constituted an integral part of the transaction, had already been consummated prior to approval.
- In SCM Soilfert, though the CCI unconditionally approved the transaction, it imposed a penalty for failing to notify the first acquisition (24.46% of the equity shareholding capital of the target) as well as consummate the second acquisition of 0.8%, both acquired through the stock exchange.
- The CCI, appellate tribunal, and Supreme Court are however conspicuously silent what the trigger for notification with the CCI would be for open market purchases, and the effect such a public notification would have on the market for corporate control. The Supreme Court also skirted the issue of SCM having placed the 0.8% shareholding in escrow pending CCI approval.
IV. Delhi High Court clarifies important procedural aspects under the Act
- In Cadila the Division Bench was faced with an appellant who had not been named as a party respondent in the initial complaint filed before the CCI. According to Cadila, the CCI could not have passed the order without first examining, prima facie, the role by it. Only once it received the DG's report implicating it, did Cadila realize it was a party respondent and filed a review and recall application against the CCI's order, which was dismissed.
- Relying on the 2017 Supreme Court decision in Excel Crop Care1, the Division Bench opined that the subject matter of the DG's investigation included not only the one alleged, but other allied and unenumerated ones, even if involving others (i.e. third parties). Cadila would have the opportunity of responding to all the findings of the DG and hence could not be aggrieved. With regard to the review/recall application, the Court cited "serious misgivings about the correctness of the Google decision" which held that the CCI had the inherent power to review and recall its order despite a statutory amendment that removed this from the statue. Even on merits, the Court again sided with the CCI and held that such an application is maintainable only on very narrow grounds and certainly not after the DG's report has been filed.
- The only count on which the CCI was faulted was for not allowing a cross examination of certain witnesses, which was duly set aside.
- Monsanto reiterated earlier judgments of the Delhi High Court and the Kerala High Court, holding that the investigation against individuals responsible for the infringing conduct can proceed in parallel with that against the company. The penalty on 'turnover' in this regard was to be interpreted to mean 'income' of the individual, cementing a practice already in place for several years.
- Finally, in Oriental Rubber the Court affirmed the right of a party to be deposed by the DG, to be accompanied by legal counsel. However, the Division Bench also noted the negative impact the appearance of counsel may have on the deposition. Consequently, the CCI was requested to frame appropriate rules to ensure that s/he is not able to prompt the deponent in any manner. Emboldened by this, and unfortunately without any consultation, the CCI brought a year-end amendment to the General Regulations. These went so far as to state that the counsel cannot sit within hearing distance of the deponent, and is barred from interacting, consulting, conferring or in any manner communicating with the person, during his examination on oath. Any 'misconduct' could result in the counsel being barred from appearing before the DG or CCI in perpetuity!
- Naturally, this was not well received by the Bar and a writ petition was promptly filed before the Madras High Court. Until its judgment, counsels are being seated behind glass windows in the DG's office during depositions.
V. Notable Decisions of the CCI
(a) Anti-competitive agreements
- Several sugar mills were penalized following a lengthy investigation for colluding in the submission of bids for the supply of ethanol to the public sector oil companies. However, its decision will be minutely scrutinized in appeal following the judgment of the Supreme Court in the LPG Cylinders case.
- In another industry-wide investigation, the CCI re-imposed penalties on Jet Airways, Indigo, and SpiceJet, for collusion in the fixing of Fuel Surcharge rates for cargo transportation. The CCI has recently also emphasized the need to look into the possible anti-competitive effects of algorithm pricing in the airline industry. The intention of the CCI shows that the Indian competition regime is gradually expanding its scrutiny to non-conventional cartel arrangements.2
- In two separate orders under Section 26(2), the CCI dismissed the need to investigate Ola and Uber (Cab Aggregators) for allegations of anti-competitive conduct under Sections 3 and 4 of the Act. In the first order, the CCI held that the common minority shareholding by investors in the cab aggregators, though not insignificant, did not suggest that it is likely to generate anti-competitive effects. Subsequently, in its second order, the CCI dealt with the use of pricing algorithms in their ride-hailing apps. Through the information filed, it was alleged that Ola's/Uber's pricing algorithm artificially manipulates supply and demand, which guarantees higher fares to drivers who would otherwise compete against one another on price and would not be able to command such high prices. However, the CCI dismissed these allegations by noting that the prices of the cab aggregators were dynamic in nature the determination of price is integral to the functioning of the aggregation-based models, which they employ for providing app-based taxi services.
- This positive approach towards digital technology driven markets was taken yet again in dismissing allegations against Amazon and Flipkart by recognizing the growth potential as well as the efficiencies that such markets can provide.
- In both cases, the CCI noted that although the individual market shares were very significant, no single entity held a dominant position, virtually stalling any complaints against these companies, at least in the near future. Both decisions have been appealed to the appellate tribunal.
(b) Abuse of dominance
- After an enquiry spanning six years, Google was found to have abused its dominance in web search and web search advertising services in India, by indulging in search bias. By displaying and placing its own Commercial Flight Unit with links to Google's specialized search options/ services, it deprived users of additional choices. Most importantly, the CCI noted that Google's access to large amounts of big data from personalized search histories could lead to it leveraging its position in vertical markets such as google maps, google news etc. through data analytics. The penalty of Rs. 135.86 crores ($19.15 million) however pales in comparison to the fine of $2.7 billion levied by the EC a year earlier for search bias, and the record fine of $5 billion related to the Android investigation.
- The CCI's focus on the healthcare sector continued in 2018. Following various allegations concerning unfair pricing in super-specialty hospitals around Delhi, the CCI decided to enlarge the scope of its investigation to cover the practices of super specialty hospitals across Delhi in respect of healthcare products and services provided to their in-patients. This industry-wide investigation is consequential of the observations of the CCI that the huge profit margins earned from the sale of products in the tertiary healthcare sector to in-patients contravenes Sections 3 and 4 of the Act and cannot be seen to be in the interests of the consumer. The CCI's interest in the healthcare sector also took the form of a Policy Note on "Making Markets Work for Affordable Healthcare" which highlighted the competition concerns within the sector and suggested policy and regulatory changes which could mitigate conditions that have the effect of choking competition and are detrimental to consumer interest.
(c) Leniency regime takes one step forward, two steps back
- The nascent leniency regime has burgeoned over the last year. In a landmark decision, the CCI granted its very first 100% reduction in penalty to a leniency applicant, Panasonic Energy India Co. Ltd. (Panasonic) for coming clean in relation to the dry cell battery cartel between 2009 and 2016. However, the CCI wasn't as considerate towards the second applicant, noting that by this time, a significant amount of evidence was already available with the DG, rendering the value of the evidence of the second applicant, Eveready, as being merely corroborative in nature. It granted Eveready (and their office bearers) a reduction of 30% and Indo National (and their office bearers) a reduction of 20% in the total leviable penalty. The Association received no such reduction.
- The question of confidentiality also gained significant attention following the decision of the CCI in Nagrik Chetna Manch v. Fortified Security Solutions. It was the contention of the leniency applicant that the CCI ought not to make a distinction between the evidence filed by leniency applicants with the CCI when they first approach itfor leniency, and that collected by the DG as a result of his own investigation, including oral depositions when granting confidentiality. Unfortunately, the CCI decided that the confidential treatment granted under the Lesser Penalty Regulations does not extend to evidence obtained or collected by the DG, even if such evidence is obtained from a leniency applicant.
- The CCI goes on to disclose a disturbing amount of detail in its order, including the names of the certain customers; description of specific pieces of evidence such as emails, their senders and recipients, dates and contents; and the extent of overcharge. Confidentiality is of extreme importance to leniency applicants who run the risk of follow-on civil damages claims and reputational loss. Without broad and robust confidentiality protection, potential leniency applicants may be deterred from coming forward to report cartel activity. Publishing details as the CCI has done could potentially attract numerous claims, which in-turn would act as a huge disincentive for future applicants seeking leniency. This is more so for global cartel participants, who may face claims not only in India but also in other jurisdictions.
(d) Merger control
- Over the last year, there have been 53 Form I filings (short form notification) and 17 Form II filings (long form notification). Two combinations entered Phase II and required modifications/commitments, namely, Bayer / Monsanto and Linde/ Praxair.
- In June 2018, the CCI conditionally approved the $63 billion acquisition of Monsanto by Bayer, taking just short of two years since initial notification in October 2016. The deal was met with extensive modifications, which, in addition to the behavioural remedies imposed by Brazil, and the divestments ordered by the European Commission, included the divestment of the minority shareholding held by Monsanto in Mahyco, and borrowing a leaf from long time ally Russia, the sharing of agro-climatic data collected in connection with the parties' digital farming products, with government institutions, free of cost.
- Linde was also required to dispose of certain assets, and its share in Bellary Oxygen Company Private Limited, a joint venture between Linde and Inox Air Products Limited, in order to secure approval for the deal.
- In contrast, the takeover of 21st Century Fox by Walt Disney sailed through without a hitch, as did Walmart's high profile acquisition of India's largest e-commerce company, Flipkart, for $16 billion, despite considerable public outcry and a formal complaint filed before the CCI against Flipkart for abuse of dominance. The CCI however was able to focus on the merits and noted that the two are neither close competitors in the B2B sales, nor have a combined market share that raises competition concerns.
- The CCI also unconditionally approved the acquisition of financially troubled hospital chain Fortis Healthcare by Asia's largest healthcare group, IHH Healthcare, in its first detailed scrutiny of the sector in a merger scenario.
Insolvency and Bankruptcy Code
- The CCI also admirably dealt with the large number of notifications, in cases by different applicants vying for the same target, in the context of the IBC. These included major cement and steel assets. Timing being a critical factor under the IBC process, the CCI dispatched the approvals for the acquisition of Binani Cement by both Dalmia and Ultratech in quick succession, despite the latter being a long form notification.
- Similarly, the CCI gave its swift and unconditional approval for the acquisition of Bhushan Power and Steel by both suitors Tata Steel, and JSW Steel, both being long form notifications.
- The IBC process has also thrown up a sticky issue – some of these stressed assets have seen multiple rounds of litigation between suitors, resulting in a situation where despite having received CCI approval, the saga is yet to play out in the company law tribunal, and appellate courts, and a final acquirer be declared once and for all. In this backdrop, while one company waits to be declared the winner, they are, in the interim, not prevented from bidding for another insolvent (or even viable) steel company.
- No doubt the CCI would make an assessment assuming that the applicant has been successful in its contest for the first target. However, the outcome may vary widely between the two scenarios – the second transaction may merit unconditional approval if the applicant has been unsuccessful in its quest for the first target while it may require divestments if it had been successful, the outcome of which is yet unknown (more on this at CCI And The IBC In The Context Of The Indian Steel Sector3).
- The CCI reiterated its stance regarding advance payment of the whole or part of the consideration in any manner would violate the obligation not to consummate any part of the transaction prior to approval, in four orders – Adani Transmissions, UltraTech Cement Limited, LT Foods, and Dilip Buildcon. UltraTech stands out as it involved the extension of corporate guarantee to a bank in connection with its loan to the target. This also affected, or had the potential to affect, the independence of the target company pending CCI approval, and was thus enough to violate the standstill obligation.
- On August 03, 2018, the CCI imposed a penalty on Telenor ASA. The CCI noted that the mere disclosure of all steps of the transaction did not permit the parties from waiving their obligation to file separate notices or one composite notice depending on the interconnected nature of the transaction or its lack thereof.
- In a rare order under Section 44, the CCI penalized Ultratech for omitting to provide information regarding the shareholding/control of the Kumar Mangalam Family over Century Textiles and Kesoram Industries. Both these enterprises are engaged in the production and sale of cement in India. The CCI also noted that Ultratech had indicated Century as its competitor, which was factually incorrect, given the family's control over Century and Kesoram. The CCI noted that the presence of Mr. KM Birla on the board of Century, the likelihood of his material influence, and consequent competition distortions could not be ruled out.
- Moving forward, it would be interesting to see how sector-specific matters are addressed in the context of a jurisdictional tug-of-war between the CCI and the sectoral regulator. The year shall also look forward to the recommendations of the Competition Law Review Committee and see how the Indian competition regime shall shape in the context of such changes.
Gayatri is an Associate in the Competition Law Practice Group at L&L Partners, New Delhi. She graduated from Campus Law Centre, Delhi University in 2017, with an LL.B degree and has also majored in Political Science from Lady Shri Ram College for Women in 2014. At the firm, she engages in matters pertaining to cartel investigations, leniency proceedings and combinations. She has represented major international and domestic clients across sectors such as inter alia pharmaceuticals, automotive, shipping and iron & steel. She can be reached at email@example.com.
Abdul is a Partner in the same Practice Group at L&L. He can be reached at firstname.lastname@example.org.
1. Excel Crop Care Limited v. Competition Commission and Anr., Judgment of the Supreme Court of India dated 08 May 2017
2. Airfares shoot festive bells rings, The Statesman, dated November 02 2018, available at (https://www.thestatesman.com/business/airfares-shoot-festive-bells-ring-1502703660.html)
3. Prerna Parashar, The CCI And The IBC In The Context Of The Indian Steel Sector, dated 07 November 2018
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