Competition Law and Antitrust Advisory

Competition Law and Antitrust Advisory

In India, the legal framework that forbids anti-competitive behaviour and regulates fair competition is referred to as competition law. The Competition Act 2002 was introduced by the legislation that governs competition law in India. The outdated Monopolies and Restrictive Trade Practices Act of 1969 was replaced by this law, which brought India's competition laws into line with global best practices.

Competition Commission of India (CCI)

The Competition Commission of India (CCI) was founded by the Competition Act 2002 as the regulatory body in charge of upholding competition law throughout the nation. In order to preserve competition across a range of markets, the CCI, an independent statutory agency, is entrusted with monitoring fair competition, stopping anti-competitive agreements, and evaluating mergers and acquisitions.

Prohibition of Anti-Competitive Practices

A number of anti-competitive behaviours are forbidden by the Competition Act of 2002, including market allocation, bid rigging, price fixing, cartels, and misuse of dominant market positions. These practices harm both consumer welfare and competition.

Mergers and Acquisitions

Any combination, including mergers, acquisitions, and amalgamations, requires prior clearance from the CCI and must abide by the Act's Sections 5 and 6. The two prerequisites are the de minimis test and filing of such mergers and combinations. Additionally, the Act grants the CCI jurisdiction over all combinations, including those made outside the nation. In the event of a merger or amalgamation, notice must be sent within 30 days of the board of directors' permission or, if an acquisition is within 30 days of the agreement's execution, indicating the desire to purchase a business. Failure will make the Act's authorization of an investigation possible.

However, there are some exceptions listed in Schedule 1 of the combination regulations where notifying CCI in advance is not required. These are the following:

• Purchases made solely for investment purposes in which the buyer does not directly or indirectly own more than 25% of the shares; Purchases of additional shares totalling no more than 5% of the shares in a fiscal year in which the buyer owns more than 25% but less than 50% of the shares or voting rights before or after such a purchase.
• A purchase in which the buyer already owns over half of the target company's shares unless there is a change from joint to sole control.
• Renewed tender in cases when the Commission has already received the notice.
• Throughout business operations, procurement of supplies, inventory, spare parts, etc.
• Acquisition by an individual inside the same group, unless they are not members of the same group and the business is jointly owned.
• A merger or combination in which one party acquires more than 50% of the shares of the other, but the transaction does not transfer control from joint to sole ownership.

Penalties and Remedies

• Additionally, the Act provides fines and penalties. Up to 10% of the average turnover over the previous three fiscal years may be fined for anti-competitive agreements.
• For cartel agreements, the fine is three years' worth of profits from the agreement. It may also demand a cessation of operations or a change to the agreements.
• Penalties for incorrect information under Section 44 of the Act and non-compliance with the Commission's order under Section 42 are also provided under the Act. Under Section 46 of the Act, the Act also gives CCI the authority to impose lighter fines.

Appellate institution

Appeals against CCI's rulings are heard by the Competition Appellate Tribunal (COMPAT), a special appellate institution. It is noteworthy that in 2017, the National Company Law Appellate Tribunal (NCLAT) and the COMPAT amalgamated.

Recent years have seen an increase in the activity of India's competition law framework, with the CCI implementing measures to prevent anti-competitive behaviour and foster competition across the economy. The law seeks to safeguard consumer rights, advance economic efficiency, and foster a competitive business climate in India. It supports India's economic expansion and development and is consistent with international best practices in the control of competition.

How does competition law help?

In certain nations, competition law—also referred to as antitrust law—offers a number of benefits to firms, consumers, and the overall economy. The following are some of the main benefits of competition law:

Promotion of Consumer Welfare:

The fundamental goals of competition law are to maintain market competition and give consumers access to a wide range of options, reasonable prices, and high-quality goods and services. Competitive markets frequently result in reduced costs and better-quality products for consumers.

Efficiency and Innovation:

To obtain a competitive advantage, firms are driven by competition to become more inventive and efficient. Businesses are motivated to develop methods to save expenses, enhance products, and provide customers with better deals in a competitive market.

Prevention of Monopolies:

The establishment and misuse of monopolistic power are hindered by competition law. Monopolies may result in lower innovation, fewer options, and greater costs. Competition law contributes to the preservation of equal playing fields by outlawing anti-competitive behaviour and mergers that would significantly reduce competition.

Fair Business Practises:

Price-fixing, bid-rigging, market allocation, and the misuse of dominant market positions are examples of unfair and anti-competitive practices that are prohibited under competition law. These actions can be detrimental to customers, rival businesses, and the economy as a whole; competition law works to discourage them.

Market Entry and Small Businesses:

The legal framework pertaining to competition encourages the entry of new enterprises into the market and their rivalry with more established ones. This may boost entrepreneurship and favourable conditions for the growth of small and medium-sized businesses (SMEs).

Understanding Antitrust

In India, the Competition Act of 2002 (referred to as the "Act") governs antitrust law. Any arrangement between businesses, people, or associations that might have a negative impact on competition is prohibited by the Act.

The term "hardcore cartels" is defined in Section 3(3) of the Act. It's interesting to note that hardcore cartels also engage in "bid rigging" and "conclusive rigging." It even assumes a competition-restricting effect in the process. It is arguable whether this represents a change in the burden of proof.

Anti-competitive Agreements

Parties that sign anti-competitive agreements are covered by Section 3 of the Act. Two categories of anti-competitive agreements are mentioned in the Act. These are the ones that follow:

Anti-competitive horizontal agreements (Section 3(3)):These agreements' presumptions are rebuttable. These kinds of agreements consist of Price-fixing agreements,

• a contract restricting the amount produced or supplied,
• The contract that divides up the market,
• Consent to collusive bids.

Section 3(4) refers to anti-competitive vertical agreements, which are agreements established by the parties involved in manufacturing, distribution, supply, etc. However, according to Section 3(5), some requirements are required to safeguard intellectual property rights and are not regarded as Act violations. These agreements are as follows:

• Setting up an exclusive supply,
• Refusing to engage,
• Preservation of the selling price.

The Act's Section 4 governs the ban on abusing a dominant position. Standard instances of behaviour that may be considered an abuse of a dominating position are defined in Section 4(2) of the Competition Act.

A business is considered to be dominant if it exploits its position to independently dominate the market or negatively impact its competitors. No business is forbidden from holding a dominant position, but the Act forbids such abuses if the corporation utilizes its position for illegitimate purposes or engages in illegal activity. The Act lists several behaviours that fall under the category of abusing a dominant position. These are the following:

• When a position is exploited to impose any unjust terms or prices—including predatory rates
• If it's applied to restrict development or output,
• prohibits entry to the market,
• To end the agreement over superfluous
• to obtain a competitive edge in other markets.

Cartel Agreements

Certain agreements are forbidden under the Act because they could result in AAEC in the market. These agreements are categorized as horizontal agreements and are known as cartel agreements. A news statement from 2022 stated that the maritime transport industry was penalized by the CCI for cartelization. According to a different news release, Eastern Railways issued a halt order against companies who had engaged in bid rigging and cartelization in a tender.

We help you with

The goals of competition law—also referred to as antitrust law in some places—are to uphold fair competition and stop anti-competitive behaviour in the marketplace. Although competition law protects consumer interests and ensures a fair playing field for firms, it can also encounter a number of difficulties.

Cases involving competition law can be very complicated, requiring in-depth legal interpretation as well as economic research. It can be difficult to determine whether a certain corporate practice is anti-competitive, particularly in a quickly changing industry like technology. Our professional team ensures that your company objectives are fulfilled without going through any hindrances.

• Acquisitions and Mergers:

  In order to prevent monopolies or anti-competitive concentrations of market power, regulators must closely monitor acquisitions and mergers. However, accurately determining how these deals can affect competition can be challenging.

• Alternative Dispute Resolution:

  To settle competition problems more quickly, promote the use of alternative dispute resolution procedures like arbitration or mediation.

In the end, competition law has difficulties. Still, they may be overcome, and its usefulness in fostering competition and safeguarding consumer interests can be ensured through a mix of legislative and regulatory actions, more knowledge, and international cooperation.