Welcome to the February 2025 edition of our monthly antitrust newsletter. This edition highlights key features of the Competition Commission of India (Manner of Recovery of Monetary Penalty) Regulations, 2025 issued on 27th February 2025; closure of antitrust information(s) by the Competition Commission of India (“CCI”) concerning allegation of bid-rigging; and other combinations approvals granted by the CCI. It also covers the dismissal of an appeal by National Company Law Appellate Tribunal (“NCLAT”) filed by Sri Balaji Traders regarding allegations of abuse of dominant position by Asian Paints Limited and an appeal filed by Ghaziabad Development Authority before Hon'ble Supreme Court against the penalty of INR 1,00,60,794/- imposed by the CCI.
To keep our readers updated, this edition provides an overview of the regulation of abuse of dominance under Indian competition law, followed by key features of the Competition Commission of India (Manner of Recovery of Monetary Penalty) Regulations, 2025, summaries of orders/judgments passed by Hon'ble Supreme Court, NCLAT, Anti-trust orders passed, and combinations approved by CCI, along with information on upcoming events.
I. Regulation of abuse of dominance under Indian competition law
In India, abuse of dominance is regulated under Section 4 of the Competition Act, 2002 (as amended in 2023) (“Act”). Section 4(1) of the Act imposes an obligation upon dominant enterprise(s) and group(s) to not to abuse their dominance. In terms of Section 4(2) of the Act, a conduct of a dominant enterprise or a group is considered abusive only if it results in – a) imposition of an unfair / discriminatory – i) condition or ii) price (including predatory price), in purchase or sale of goods or services (except those which are adopted to meet the competition); b) limiting or restricting the production, technical or scientific development relating to goods or services to the prejudice of consumers; c) denial of market access; d) making of conclusion of contracts subject to acceptance of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contract; or e) leveraging of dominance in one relevant market to enter into or protect other relevant market.
An enterprise or group is considered to be dominant only if it holds a position of strength in the relevant market that enables it to – a) operate independently of competitive forces prevailing in the relevant market; and b) affect its competitors or consumers or the relevant market in its favour. The CCI determines the dominant position of an enterprise or a group in view of factors enumerated under Section 19(4) of the Act. In the absence of dominance, there can be no abuse. Therefore, CCI in its analysis, first determines the relevant market and dominance of an enterprise or group in such relevant market, followed by the determination of abuse.
In case, an enterprise or group is found to be abusing its dominant position, the CCI in terms of Section 27(b) of the Act, may at its discretion impose a penalty as high as 10% of the average global turnover for the last three preceding financial year of such enterprise or group. Furthermore, in terms of Section 28 of the Act, the CCI may also direct division of an enterprise to ensure that such enterprise does not abuse its dominant position.
II. Key features of The Competition Commission of India (Manner of Recovery of Monetary Penalty) Regulations, 2025
The CCI on 27th February 2025, issued the Competition Commission of India (Manner of Recovery of Monetary Penalty) Regulations, 2025 (“Penalty Recovery Regulations, 2025”) repealing the erstwhile the Competition Commission of India (Manner of Recovery of Monetary Penalty) Regulations, 2011 (“Old Penalty Recovery Regulations, 2011”). In view of provisions of Section 39 of the Act, penalties levied under Section 27 and Chapter VI of the Act are to be recovered in terms of the said Section and regulations issued thereunder i.e., Penalty Recovery Regulations, 2025.
In view of the Penalty Recovery Regulations, 2025, the demand notice for recovery of penalty will be issued to the parties by the Secretary along with the order of the CCI imposing such penalty. However, in view of statutory right(s) of the parties to appeal against such order(s), a time 60 (sixty) days is provided to the parties to deposit the penalty. The parties may also prior to expiry due date of the payment may make an application to the CCI seeking an extension for the payment or request for making the payment in instalments. Further, under the Penalty Recovery Regulations, 2025, the simple interest payable on the outstanding amount has been reduced to 1% from 1.5% as provided under Old Penalty Recovery Regulations, 2011.
III. Judgment(s) passed by Hon'ble Supreme Court of India
i. Ghaziabad Development Authority approaches Hon'ble Supreme Court of India against NCLAT judgment whereby a penalty of INR 1,00,60,794/- imposed by Competition Commission of India was upheld
Ghaziabad Development Authority vs. Competition Commission of India (Civil Appeal No. 2273/2025)
Ghaziabad Development Authority (“GDA”) approached Hon'ble Supreme Court against NCLAT judgment dated 18.12.2024 whereby a penalty of INR 1,00,60,794/- upon GDA imposed by CCI was upheld. The said penalty was imposed by the CCI upon GDA for abusing its dominant position by arbitrarily increasing the price of flats under its Pratap Vihar Residential Housing Scheme for Economically Weaker Section from INR 2,00,000/- to INR 7,00,000/-. The NCLAT in its judgment concurred with the findings of the CCI and found the quantum of penalty to be rightfully imposed by the CCI under Section 27(b) of the Act.
IV. Orders passed by National Company Law Appellate Tribunal
ii. National Company Law Appellate Tribunal dismisses appeal filed by Sri Balaji Traders concerning abuse of dominance by Asian Paints Limited
Sri Balaji Traders vs. Competition Commission of India & Ors. (Competition Appeal (AT) No. 60 of 2022)
The NCLAT vide Order dated 19.02.2025 dismissed the appeal filed by Sri Balaji Traders against CCI's order of dismissal in Case No. 17 of 2021 passed under Section 26(6) of the Act. The appellant – a dealer and supplier of Asian Paints Limited (“APL”) alleged that APL violated Section 4 of the Act by arbitrarily revoking the appellant's status of critical retailer of APL because it had also started the business of JSW Paints Private Limited (“JSW”). The appellant alleged that due to the said revocation it suffered financial losses as its APL's material of INR 3.50 lakh became dead stock.
The NCLAT while dismissing the appeal observed that the appellant had approached the CCI as well as the tribunal with unclean hands as it had concealed the fact that its status was restored by APL much before the information was filed by it and despite its status already being restored, the appellant prayed for an interim relief for restoration the same. Additionally, NCLAT also noted that the said revocation of the status of the appellant was on account of appellant's declining offtake and not because it started the business of JSW. The NCLAT also dismissed the argument of appellant that it was not given enough time to produce evidence before the CCI as it was given a five-month time prior to closure of information by the DG. Therefore, in view of the said observations, NCLAT dismissed the said appeal.
V. Orders passed and combinations approved by Competition Commission of India
i. Competition Commission of India closes a reference case received from the Army Purchase Organisation alleging bid-rigging by entities having common ownership
In Re: ADGST (SM) Army Purchase Organization And M/s Gokul Agro Resources Ltd. & Anr. (Ref Case No. 03 of 2024)
The CCI vide Order dated 04.02.2025 closed the reference case received from Army Purchase Organization (“APO”), alleging bid rigging in contravention of Section 3(3)(d) of the Act by two entities, namely, M/s Gokul Agro Resources Ltd. (“OP-1”) and M/s Gokul Agri International Ltd. (“OP-2”). The APO alleged that OP-1 and OP -2 have common ownership and have indulged in bid-rigging in tenders floated by it on the Government e-Marketplace (“GeM”).
Upon perusal of an order of the High Court of Gujarat concerning the approval of scheme of de-merger of Gokul Refoils Solvent Ltd., OP-1 and OP-2, the CCI noted that OPs appear to be independent entities with no common directors. With respect to the award of tenders to OP-1 and OP-2, CCI observed that OP-1 and OP-2 have emerged as L-1 on 4 occasions each out of a total of 15 occasions and the percentage difference between their bids is between 0.42% and 10.46%. Further, CCI did not find any evidence to indicate any collusion between OP-1 and OP-2. In view of the said facts and its previous orders, CCI held that mere commonality of ownership does not itself imply contravention of the provisions of Section 3(3)(d) of the Act, unless there is material on record to substantiate the allegations of bid rigging by way of collusion. Therefore, the CCI proceeded to close the matter by passing an order under Section 26(2) of the Act.
ii. Competition Commission of India closes information filed against printer manufacturers/ suppliers for alleged bid rigging
In Re: Xyz And HP India Sales Private Limited & Ors. (Case No. 26 of 2024)
The CCI vide Order 04.02.2025 closed an information filed against HP India Sales Private Limited (“OP-1”), Wideprint Systems and Solutions (“OP-2”), Digital Global (“OP-3”), Capricot Technologies Private Limited (“OP-4”), Samman Consultants (“OP-5”), Transcon Electronics Private Limited (“OP-6”) and KR Enterprises (“OP-7”), alleging bid rigging in contravention of Section 3(3)(d) of the Act. The informant alleged bid rigging regarding tenders floated at GeM by Gurugram Metropolitan Development Authority (“GMDA”) and Faridabad Metropolitan Development Authority (“FMDA”) having similar specifications issued for procurement of inkjet/LED A0-A4 size plotter/printer along with print head, maintenance box and 2 set ink cartridges. Additionally, bid rigging regarding another tender floated by BHEL Noida for procurement of Mono Plotter printer was also alleged (“BHEL Tender”). In all these tenders OP-2 was declared the winner. The informant specifically alleged that – i) product specifications of GMDA and FMDA are restrictive in nature as suppliers of LED printers could not participate in the said tenders because LED printers are costlier than inkjet printers; ii) higher amount was charged by OP-2 (the winner of the bids of GMDA and FMDA) as compared to the aggregate price of individual components of the tender items which was approximately Rs 19.40 lacs; iii) in GMDA tender all 5 bidders quoted HP products and all of them quoted 5 years' warranty instead of minimum warranty specified for 3 years in GMDA tender; iv) in FMDA tender 3 out of 4 bidders quoted HP printer whereas one bidder i.e. OP-3 quoted ROWE brand, the OEM for which is deemed to be OP-2. In this regard, the informant alleged that OP-2 itself not quoting its own brand implies that OEM (OP-2) authorized a bidder (OP-3) to quote against itself; and v) in BHEL Tender, OP-2 quoted the color printer variant at a price of Rs 17.60 lacs and won the bid. Considering this as benchmark it can be seen that GMDA and FMDA ended up paying substantially more for the same product.
With respect to allegations pertaining to specifications of GMDA and FMDA tenders being restrictive in nature, preventing participation of LED printers, the CCI observed that it is the choice of the procurer to procure products as per its needs and requirements. Similarly, for the allegation concerning cumulative price for individual components being substantially more than the bid prices quoted by the bidders, CCI noted that like product specifications, it is also the prerogative of the procurer either to procure individual items from GeM portal or to procure a bundle of products and/or services based on its specific requirements to meet its objective. Regarding informant's allegation concerning the GMDA tender that all bidders quoted 5 years warranty when the specified warranty under the tender was 3 years, the CCI noted that the same was on account of additional buyer condition – ‘onsite OEM warranty – 5 years' and not because of collusion amongst them. Further, with regards to FMDA tender and allegation concerning OP-2 not quoting its own brand and OP-3 quoting brand of OP-2, the CCI held that the same cannot be said to bid against itself as both bidders are quoting different brands of different OEMs as per their individual choices. Lastly, with respect to BHEL Tender, the CCI noted that the same was cancelled. Thus, in view of the said reasons, the CCI found no incidence of bid rigging and closed the information under Section 26(6) of the Act.
iii. Combinations Approved by Competition Commission of India
I. CCI approved amalgamation of Svatantra Holdings Private Limited and Chaitanya India Fin Credit Private Limited into Svatantra Microfin Private Limited. [1]
II. CCI approved acquisition of – i) 20% interest and 10% in Blackwater coal mine along with related coal offtake agreement(s) by NS Blackwater Pty Limited and JFE Steel Australia (BW) Pty Ltd., respectively. [2]
III. CCI approved acquisition of the entire shareholding of LX International Corporation in POSCO - India Pune Processing Center Private Limited by POSCO India Processing Center Private Limited. [3]
Deemed Approvals:
IV. Torrent Investments Private Limited received deemed approval of CCI to acquire 67% of the shareholding (on a fully diluted basis) and control of Irelia Sports India Private Limited. [4]
V. Paloma Rheem Holdings Co., Ltd. received deemed approval of CCI to acquire the entire shareholding of Fujitsu General Limited. [5]
VI. Robert Bosch GmbH received deemed approval of CCI to acquire sole control over the residential and light commercial heating, ventilation and air-conditioning businesses of Johnson Controls International plc (“JCI”), including Johnson Controls-Hitachi Air Conditioning Holding (UK) Limited (a joint venture between JCI and Hitachi Ltd.). [6]
VI. Mark Your Calendar: Upcoming Events!
- GCR Live: Cartels 2025 scheduled on March 11, 2025 in Washington DC ( click here)
- 14th Annual GCR Live: Telecoms, Media & Technology scheduled on Mar 20, 2025, in Freshfields, London ( click here)
- Nordic Competition Law Conference scheduled on March 25 – March 26, 2025, in Stockholm (click here)
- 7th Annual GCR Live: Antitrust in Digital Economy scheduled on April 1, 2025, in Washington DC ( click here)
- 2025 Antitrust and Competition Conference - Economic Concentration and the Marketplace of Ideas scheduled on April 10 - April 11, 2025, in Chicago ( click here)
- ICC Asia Antitrust Conference 2025: A Practical Approach to Balancing Innovation and Competition scheduled on April 15, 2025 ( click here)
- 34th Annual IBA Communications and Competition Law Conference scheduled on April 28 - April 29, 2025, in Paris, France (click here)
Footnotes
1 C-2024/12/1226
2 C-2024/12/1222
3 C-2024/12/1225
4 C-2025/02/1243
5 C-2025/02/1250
6 C-2025/02/1240
