The Competition (Amendment) Bill, 2023 (Amendment) was recently approved by both houses of Parliament in India and thereafter received the assent of the President to become the Competition (Amendment) Act, 2023. It introduces significant substantive as well as procedural changes to Indian competition law including widening of powers of the Competition Commission of India (CCI). The Amendment aims to update the decade old Competition Act, 2002 (Competition Act) with much needed reforms and effectively, overhauls certain key aspects of the regime in India. While certain amendments are aimed at equipping the CCI to effectively regulate the increasingly important digital markets, certain other amendments will require careful exercise of the new provisions – through clear and effective regulations.
- Deal value thresholds: The Amendment introduces 'deal value thresholds' which require the notification of transactions valued in excess of INR 2,000 crores (approx. USD 243.9 million) to the CCI for its prior approval. The application of this test is still subject to the target having 'substantial business operations' in India. The CCI is expected to issue regulations clarifying the scope and interpretation of these thresholds.
- Expedited merger review timelines: The Amendment has drastically shortened merger review timelines. The earlier statutory review period of 210 days for deemed approval has now been reduced to 150 days. While the intent of the Amendment is laudable, it is feared that in practice, this may mean several more information requests or 'RFIs' from the CCI in a bid to gain more review time. Parties will also face pressure to provide comprehensive notifications and will likely be required to conduct substantive pre- filing consultations on draft merger notifications to minimize delay.
- Amendments to the definition of control: The Amendment codifies the CCI's current decisional practice for defining 'control'; i.e., the ability to exercise 'material influence' over the management or affairs or strategic commercial decisions. Although the Amendment does not define 'material influence' or provide parameters to make such determination, in the past the CCI has considered board representation, financial arrangements, strategic, informational, veto or investor protection rights, and the status / expertise of a person when assessing acquisition of 'material influence'.
- Derogation of stand-still obligations for stock market purchases: In a welcome change, the Amendment has recognized the time- sensitive nature of open market purchases and exempted such transactions from the stand-still obligations (subject to timely notification and non-exercise of beneficial/ voting rights).
- Increased penalties based on global turnover: The Amendment has 're-stored' the CCI's powers to impose penalties calculated on the basis of a party's global turnover. This signals the clear intention of the Government to ensure competition law violations are adequately penalized such that the penalties deter such conduct in the future.
- Settlement and commitments: In one of the most significant amendments to the Indian antitrust regime, a mechanism for 'settlements' and 'commitments' has been added to the CCI's enforcement toolkit. Parties can now apply to the CCI to offer commitments while under investigation or can settle a case after investigation. This is available only for abuse of dominance and anti-competitive vertical restraints under investigation, and not cartels. Parties entering into settlements and commitments can still be subject to compensation claims. The detailed procedure will likely be clarified through regulations by the CCI.
- Updates to the leniency regime: The Amendment seeks to modernize the leniency regime in India, by introducing a 'leniency plus' mechanism. Where a party under investigation blows the whistle on an additional cartel, it may be granted lenient treatment under both cartel investigations. The Amendment also empowers the CCI to reject a marker status granted to an applicant who fails to cooperate. A leniency applicant is now also allowed to withdraw its leniency application; the CCI and DG Office can however, use the evidence provided under such application for the purpose of investigation.
- Hub and spoke cartels and the intent to cartelize: Entities which are not competitors but nonetheless facilitate or intend to facilitate a cartel (such as trade suppliers, distributors, other third parties etc.) can now be held liable under the same hefty penalty provisions applicable to colluding competitors.
- Limitation period for filing: The Amendment has imposed a limitation period of 3 years from the date of the cause of action, beyond which the CCI will not accept a complaint (except in cases where the delay may be condoned).
- Res judicata: In another step to ease the CCI's case load, the Amendment empowers the CCI to reject a complaint if same or similar facts and issues have been previously addressed and disposed off.
- Wider powers of the DG: The Amendment empowers the DG Office to retain documents, information, books, papers etc. seized by it for a period of up to 360 days. The investigation arm of the CCI is also empowered to examine third parties and agents under oath (only those professionals that are 'employed' by the parties) as well as to seek assistance of police officers when conducting dawn raids. The parties under investigation are now statutorily required to preserve and protect relevant documents and offer any assistance required by the DG during the investigation.
- Penalty for appeals: Currently, the appellate tribunal directs parties appealing a case to deposit a proportion of the penalty, at the stage of hearing on admission. The Amendment has now codified this practice and increased the deposit amount from the current 10% to 25% of the penalty. This may become a significant hurdle for smaller parties' ability to exercise the right of appeal.
Originally published by April, 2023
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