REFORMING COMPETITION COMMISSION OF INDIA – AN ANALYSIS OF THE REPORT OF THE COMPETITION LAW REVIEW COMMITTEE
ISSN: 2582-3655
Author: Mr. Raj Kumar Singh
Research Scholar at Faculty of Law, University of Delhi
1.0 INTRODUCTION
The economic policies of India went through significant change post liberalization of the Indian economy in 1991. Many reforms were made which are directed towards the deregulation of various industries to boost the growth of the boost of private sector business. In light of this development, the Raghavan Committee was constituted to reform the existing anti-trust law in operation at that time (The Monopolistic and Restrictive Trade Practices Act, 1969). The Raghavan Committee put forward its recommendation in the year 2000 which highlighted how the MRTP Act was inadequate to foster competition in the market and reduce anti-competitive practices[1]. Based on the recommendations, the government enacted the Competition Act, 2002 (hereinafter referred to as The Act) to prevent practices having an adverse effect on competition, promote and sustain competition in markets, protect the interest of consumers and ensure freedom of trade carried on by other participants in India.
The Act marked a drastic shift from its predecessor i.e. the Act penalizes abuse of dominance instead of dominance itself; promotes the rule of reason approach over per se approach; involves ex-ante and ex-post regulation; focuses on competition issues and not on unfair trade practices and clearly defines the violations and offences involved. The Act is referred to as “close to a state-of-the-art” by the Organization for Economic Co-operation and Development (OECD)[2]
In pursuance of the fulfillment of the objective that the legislation is in sync with the needs of strong economic fundamentals, the government had constituted a Competition Law Review Committee to review the Competition Act. The Competition Act was passed in the year 2002 under which the Competition Commission (hereinafter referred to as CCI) was established in the year 2009. During the last 10 years, the size of the Indian economy has grown immensely and India is one of the top ten economies in the world and poised to move ahead further[3]. Hence it is essential that the Competition Law is strengthened and restructured so to promote the best practices aiding aid the development of the Indian economy. For the above-mentioned purpose, the Competition Law Review Committee (hereinafter referred to as the Committee) was constituted by the Ministry of Corporate Affairs on 30th of September, 2018 to review the Competition Act/Rules/Regulations in view of changing business environment and bring necessary changes, to look into the international best practices in the competition fields, to study the regulatory regimes/institutional mechanism/government policies overlapping with the Competition Act, etc[4].
The Committee consulted various stakeholders including industry chambers, government departments and ministries, NGOs and exports and focused on furthering ease of doing business. The Committee, with a bunch of recommendations, submitted its report on the 14th of August, 2019.
The Committee focused on various aspects, analyzing its background and recommending the changes required. The Report gave 50+ recommendations. This research paper purports to give a detailed summary of the Report of the review committee and for the purpose of brevity, the research paper is confined to certain areas of recommendations related to the Competition Commission viz. Regulatory Body, the functioning of CCI and Competition Advocacy.
2.0 REGULATORY ARCHITECTURE
The Supreme Court of India observed that the CI is a regulator vested with inquisitorial, investigative, regulatory, adjudicatory and advisory jurisdiction under the scheme of the Competition Act[5]. The Delhi High Court in Mahindra & Mahindra Ltd. v. CCI & Anr[6] stated that CCI is a body that is in parts administrative, expert and quasi-judicial. In light of the multifarious functions that extends to directing, overseeing, investigating, conducting the inquiry, etc. the Committee deliberated the need to introduce a governing body with part-time members to bring in external perspective, objectivity, and transparency in the functioning of CCI. The Committee noted that with the evolution of the Indian market, the role of CCI has become critical and this is an opportunity movement to revisit the regulatory design of the CCI to incorporate best practices in its structure and functioning. As noted by the Delhi High Court, there is no ‘one size fits all’ approach for a regulatory design and a regulatory body must respond to a rapidly changing economy with imperatives of global trade and its interface with technology.
2.1 GOVERNING BODY
Comparing to other regulatory bodies in India viz. The Reserve Bank of India (RBI), Securities and Exchange Board of India (SEBI), Insolvency and Bankruptcy Board of India (IBBI) & Insurance Regulatory and Development Authority of India (IRDAI) all of them have Part-Time Members in their composition. The establishment of a governing body ensures robust governance. With CI continuing to perform its adjudicatory functions without any interference from the governing body, the part-time members in the governing body equip the CCI to perform its quasi-legislative functions, bringing in more rigor and objectivity in decision making[7].
2.1.1 DELEGATION OF FUNCTIONS
Enabling statutes of different regulators of India like SEBI[8], IBBI[9], etc. allow delegation of administrative tasks so as to maintain efficiency and timely actions. Hence, the Committee noted that CCI should be allowed to delegate certain functions. With the establishment of a governing body, it should also be discussed what kind of functions can be delegated and what cannot. The Committee noted that quasi-judicial functions exercised by the whole time members should not be permitted to be delegated because those are an intrinsic part of CCI’s powers and involve adjudication of competition issues that impact the rights of persons.
2.2 MERGER OF DIRECTOR GENERAL’S OFFICE WITH CCI
The present legislative framework of the Act envisages that DG shall be appointed by the Central Government and is accountable directly to the Central Government[10]. The Central Government also plays a key role in matters of departmental promotion and other matters related to human resources for the office of DG. Such separation of investigative and other functions of a regulator in an inquisitorial system was not prevalent in international competition regulators like European Commission as well as domestic regulators like SEBI, IBBI, etc. Moreover, though the rule book says that the office of DG is governed by the Central Government, in practice, it is the CCI which monitors the activities as well as administrative matters of the office of DG. This has also been recognized by the Courts of Law while dealing with the institutional framework under Competition Act. In SAIL Judgment, the Supreme Court has observed that “The Director-general appointed under section 16(1) of the Act is a specialized investigating wing of the Commission”[11].
Internationally, there are three most common institutional frameworks adopted by competition regulators viz. Firstly, Bifurcated Judicial Model where the competition authority has the investigative powers and must bring an enforcement action before the Courts of general jurisdiction with the right of appeal to general appellate courts[12]; Secondly, Bifurcated Agency Model where the competition authority has the investigative powers and must bring an enforcement action before specialized competition adjudicative authorities with the right of appeal to specialized appellate bodies or general appellate courts[13]; Lastly, Integrated Agency Model where competition authorities are empowered with both investigative and adjudicative functions with rights of appeal to general or specialized appellate bodies[14]. Each of the above mentioned three models has its pros and cons. For instance, bifurcated agency and integrated agency models may provide greater adjudication but may also entail a higher chance of confirmation bias by the adjudicators.
The Committee, after considering the stakeholders’ opinions, recommended that the office of DG should be merged with the CCI and be termed as an investigative division of CCI, adopting the integrated model. In order to ensure adherence to due process, the committee also recommended certain guidelines which include functional autonomy of office of DG (DG should directly report to Chairperson of CCI), a meaningful internal division of investigation and adjudication functions (appointment of different personnel), etc.
2.3 OTHER RECOMMENDATIONS WITH RESPECT TO REGULATORY FRAMEWORK
The Competition Act allows CCI to have an office in multiple locations but currently, CCI operated only from Delhi[15]. A centralized place of operation may be prudent in nascent years of regulation to ensure consistency and coherence. But, limited local presence may also hinder accessibility and awareness. Hence, the CCI must have offices at different locations so as to facilitate advocacy, awareness, improve accessibility, increase the efficiency of investigation, etc.
Further, the appellate functions under the Act were earlier performed by COMPAT which is then transferred to NCLAT. NCLAT was originally envisaged to act as an appellate authority for only company law related matters. Then, it was given the mandate to handle appeals from Competition Act and Insolvency and Bankruptcy Code. This has thrown some pertinent questions regarding the overall efficiency of NCLAT to handle competition appeals. It was agreed that there is a great time lag in the appellate procedure and this must be cut short for the competition law regime to remain effective in today’s rapidly evolving economic scenarios. Moreover, the Competition Act also provides that appeals shall be dealt with as expeditiously as possible and an endeavor shall be made by it to dispose of the appeals within six months from the date of receipt of the appeal[16]. Hence, the Committee recommended building an additional capacity of NCLAT to expeditiously hear and dispose of competition appeals (a separate bench to hear appeals from the Competition Act.
3.0 FUNCTIONING OF CCI
3.1 QUASI-LEGISLATIVE FUNCTIONS
At present, CCI is empowered to issue regulations for discharging its functions under the Competition Act[17]. Recent practice in India and other jurisdictions indicate that there is a growing need to have a procedural framework to guide the issuance of such subordinate legislation to ensure transparency and accountability. The Supreme Court in Cellular Operators case[18], emphasized the need for following transparent processes including stakeholder consultations while formulating subordinate legislations. Several regulators in India have begun to incorporate best practices in regulation-making. For instance, the IBBI has issued regulations requiring to publish draft regulations for public comments along with the statement of objects of the regulations, its economic analysis, etc. Even internationally, the UK Statutory Instruments Act encourages stakeholder consultation while issuing subordinate legislation if mandated under the parent statute. Such consultations and best practices are also followed in the US[19] and Australia[20]. Hence the Committee recommended that CCI issues draft regulation for public consultation and adoption of a formal framework incorporating transparency and accountability in the issuance of regulations by CCI.
The CCI, as an expert and regulatory body, is expected to function with consistency and transparency in the application of the law. This requirement also assumes significance in its function of issuance and drafting of subordinate legislation. At present, the CCI issues subordinate legislation by way of regulation, certain FAQs and guidance note. Hence, the Committee recommended that the CCI should exercise its quasi-legislative function in a uniform manner i.e. continue to issue only one type of subordinate legislation in the form of regulations. This will ensure predictability, transparency, and consistency in the discharge of quasi-legislative functions. This is not a restriction in the CCI’s to issue non-binding guidance. The Raghavan Committee report recommended that “publication of enforcement guidelines articulate how the CCI will interpret and apply the law”[21]. Similarly, the Eleventh Five Year Plan (2007-12), while reviewing the role of CCI in creating awareness on the benefits of competition Law observed that “CCI should formulate, publish and post in the public domain, guidelines covering various dimensions relating to competition law for enhancing public awareness”[22]. The Supreme Court has also highlighted the need for such guidance in the case of Excel Crop Care v. UOI[23] while dealing with the lack of clarity in determining ‘turnover’ for the imposition of penalty under the Competition Act. Hence, the Committee recommended that in order to foster certainty in the interpretation of the Competition Act, the CI must endeavor to provide non-binding guidance on certain key issues.
3.2 QUASI JUDICIAL FUNCTIONS
At present, CCI takes a decision in relation to adjudication of matters before it during its meeting during which parties may be present. Though the Act prescribes the quorum as three members, in practice, the CCI takes quasi-judicial decisions with all its members present[24]. In many Indian regulators, a single member can be appointed to undertake quasi-judicial functions. But, the determination of competition issues involves sifting through large volumes of papers, considering a large number of factors and adherence to the principles of natural justice. Therefore, a balance should be achieved between the efficient distribution of work and the plurality of views. Further, the Delhi High Court held that CCI shall ensure that during the final hearing, a judicial member is present and participates in the hearing[25].
The Act allows any person having information about any contravention of the Competition Act to provide such information to the CCI. As a part of this process, the informant provides all details, including evidence that is within his possession which may be relevant for the CCI to establish a prima facie case. The CCI can also conduct a preliminary conference to obtain any further information or assistance in forming the prima facie opinion. Hence, informants are not burdened with substantiating their allegations. With respect to the necessity of conducting a preliminary conference, the Supreme Court in CCI v. SAIL[26] recognized the powers of CCI to conduct a preliminary conference before ordering investigation u/s 26(1) of the Act. At the same time, it also stressed that time and resources must not be wasted in elaborate hearings even before the formation of prima facie opinion. If dispensing with the requirement of preliminary conference cut down the time taken to arrive at a preliminary opinion and ensure inquisitorial proceedings with a limited role of informant, the same should be followed.
But, unlike the other regulators in the country which exercises control over the definitive and fixed constituency of persons, CCI exercises mandate over a wide range of stakeholders that cuts across multiple sectors where the CCI does not have any fixed or prior source of information. Hence, the Committee noted that the preliminary conference does have an important function and does not change the nature of proceedings before CCI from adversarial to inquisitorial, provided it is conducted in a time-bound manner.
There is a discussion with respect to the role of an informant under the adjudication process. The informant is currently a party to matters before CCI and is allowed to participate in the process. In line with the inquisitorial system of CCI, the involvement of the informant should be at his own discretion. Though informants are often willing to participate, multiple parties may result in an increase in time taken for proceedings. Hence, a balance must be brought between the timely disposal of cases and efficiency brought by the involvement of informants.
The Committee looked into the use and potential for inter regulatory consultation between the CCI and other regulators owing to the fact that CCI is a cross-cutting competition regulator and must interact with various sectoral regulators, especially when their function can impact the broader scope and objective of competition policy[27]. At present, reference lies only when a potential past decision of CCI or a sectoral regulator contradicts with the governing statute. However, the CCI or other regulators may want to consider and refer issues and that are pending for consideration even otherwise. Hence, the Committee recommended that reference can be made whenever an issue of competition law or other relevant matter is raised before each other and not only in respect of proceedings. Such a reference can be made even in the absence of any contradiction or conflict between the ambit of CCI and the sectoral regulator.
3.3 SETTLEMENTS AND COMMITMENTS
In recent years, many competition authorities have been granted with the power to accept remedies from parties to antitrust proceedings. The terminology and form of such negotiation may vary from jurisdiction to jurisdiction, some refer them as commitment decisions and others as settlement or consent order[28]. The EU provides for both settlement and antitrust proceedings and provides a distinction between the two mechanisms. In the EU, settlement proceedings are available for cartels while commitment decision is permitted in all cases except cartels. Further, a settlement decision establishes an infringement and requires an admission of guilt from the parties, a commitment decision does not establish infringement and does not require any admission form the parties.
Under the existing framework, CCI has been empowered to grant leniency in cartel cases, subject to satisfaction of certain conditions. But, the Competition Act does not expressly recognize settlements or commitments. Hence, the Committee recommended amending the Competition Act so as to enable the CCI to pass settlements and commitments. Such mechanisms are likely to enable the CCI to resolve antitrust cases faster and consequently, free up scarce resources. Businesses can avoid long investigations and uncertainty and the negotiated remedies also enable the CCI to impose innovative deterrents upon the respondents while achieving equitable remedies for victims.
In Tamilnadu Film Exhibitors Association v. CCI[29], the Madras High Court held that the scheme of the Competition Act allows parties to enter into compromise or settlement and the CCI can allow the same under its residuary powers u/s 27 of the Act. The Committee recommends that such typical powers must be expressly provided by law since settlement and commitment requires extensive and detailed guidelines to function in an equitable manner that gives due regard to the public interest.
The Committee recommended that CCI must be empowered to pass settlement orders subject to certain conditions which may include settlement money or non-monetary terms and an application for settlement can be made only after the receipt of the DG report and before the passing of the final order by CCI. Such an order of settlement must be a non-appealable one. With respect to the Commitment, the Committee recommended that it should be made after an order u/s 26 has been passed and before the submission of the DG report. The power of review must be given to the CCI to review its decision on commitment in light of the change in circumstances.
4.0 ADVOCACY
The CCI must do more than law enforcement. The advocacy and advisory functions of CCI are equally important because they spread awareness of the benefits of competitive conduct and boost competitive compliance[30]. The CCI has already undertaken considerable initiative and has utilized various tools and events to spread information and awareness about competition law and policy. The website of CCI has been developed to increase transparency and allow access to important information. For instance, the website allows access to various reports in relation to competition law and policy. Importantly, the CCI has developed a ‘Competition Assessment Toolkit’ to help sensitize the market as well as policymakers, analysts, researchers and other competition stakeholders of good practice and policies regarding competitive conduct. As there exists a statutory provision with respect to competition advocacy, the Committee merely provided some clarification with respect to the same i.e. recommendations as to emphasize and strengthen the ability of CCI to implement advocacy functions to facilitate competition compliance as well as the basic level of competition introspection amongst various stakeholders in the market.
4.1 LEGISLATIVE CHANGES
Section 49 of the Competition Act, as it stands now, provides that the government may make reference to CCI only while framing a policy on the competition. It does not emphasize that reference can also be made for a review of any law that can have an impact on competition. Hence, there is a need to stress the requirement of consultation by the government departments while reviewing legislation so as to align with the principles of competition. Further, section 49(3) allows CCI to promote competition advocacy and to create awareness and impart training on competition issues. It is also supposed to spread “competition culture” in the economy. The Committee recommended including the term “competition culture” in section 49 of the Act.
4.2 RECOMMENDATIONS ON ADVOCACY
The Committee made broad recommendations to boost the advocacy functions to the CCI so as to increase the scope of advocacy initiatives already undertaken by the CCI. The recommendations include
- Roadshows on competition advocacy should not just be limited to the cities of Mumbai and Delhi but should be organized in Tier-II & Tier-III cities as well.
- Advocacy videos of CCI should not just be in kiosks but should be played in roadshows as well.
- CCI’s advocacy booklet must be translated into vernacular languages to cover a wider audience.
- CCI should actively participate in the working groups formed by ISN, especially their working groups on advocacy in competition law.
- CCI should consider undertaking advocacy initiatives at educational initiatives like universities, colleges, and other institutions to promote awareness and quality research on competition. It was suggested that CCI may even consider funding research, including setting up research centers for promoting competition law and policy in such institutions,
- CCI should frame schemed allowing competition assessment of law and policies both at the Central and State levels.
- A ranking system may be developed, similar to ‘Ease of Doing Business’ State ranking as given by the department of promotion of industry and industrial trade. This may be utilized to assess the rank of States on the basis of competitiveness of law and policy.
4.3 IMPACT ASSESSMENT STUDY
As a part of review of competition policy, advocacy and advisory functions of the CCI, the Committee decided to direct an independent agency to conduct an impact assessment study in order to assess the impact of functioning of CCI and enforcement of competition law on the economy, competition, consumers and other stakeholders; and to assess the impact and effectiveness of advocacy and advisory roles undertaken by the CCI on creating awareness among stakeholders, improving competition compliance, sensitizing law and policymakers and in reaching out to young professionals[31].
4.3.1 IMPACT ON CORPORATES AND ENTERPRISES
The efforts put in by the CCI in improving competition compliance amongst a broad base of corporate and enterprises were well acknowledged. CCI has a track record of issuing timely approval and unlike some other regulator, the CCI is perceived as a business-friendly regulator that encourages the parties to see informal guidance before going on with the formal proceedings. It is also recommended to increase the staff and resources of CCI so as to make it more accessible, creating a special body to deal with the appeals rising from Competition Act as the NCLAT is already overburdened.
4.3.2 IMPACT ON ECONOMY AND CONSUMERS
The study acknowledged that awareness has substantially improved regarding ‘fair competition’ and the Role of Competition Law in mergers and acquisitions and that, in the very near future, competition law will become a major player guiding force on how businesses compete in the market marketplace. The main issue pointed out was the misuse of competition law provision by few players in the market, by filing a frivolous claim to harass their fellow competitors, which puts a great cost on a burgeoning enterprise that fights their cases under threat of penalty, under threat of money, investment, time, etc.
4.3.3 IMPACT ON ADVOCACY
While acknowledging the advocacy efforts of CCI, the study recommends the need for ‘generalist experts’ at the senior level so that their opinions can integrate with the competition law opinion and provide a bigger picture for the CCI’s advocacy efforts. It was pointed out that the relationship CCI shares with ICN and the competition regulators in other jurisdictions is not sufficiently known to the average business. Further, international cooperation agreements entered into between India and other countries for competition regulation are not available on the website of CCI. The same should be shared, provided it is not confidential. While the CCI is well engaged with the college, especially students of Law, it is desirable to engage with future business leaders from management schools. Over and above the advocacy programs, the decisional practice of CCI is a major source of information for corporate as proceeding against the competitors instill awareness that competition law must be complied with.
4.3.4 SENSITISING LAW AND POLICY MAKERS
Though the competition law toolkit is useful, it mostly comes into effect after a law is passed. CCI should be allowed to intervene before any potential anti-competitive law is passed. The study suggests making use of jurisprudence of CCI, highlights the need to issue clear, comprehensive penalty and merger guidelines. Broader representation should be made not only to lawyers but to economists, company executives, industry experts, etc[32].
5.0 CONCLUSION
The success of the implementation of any special law is at the hands of the regulator established under the concerned legislation. For this purpose, each of such special enactment provides an exclusive chapter on the composition, powers, and functions of the regulator concerned. History is witness to the fact that the establishment of a regulator for a concerned area of law leads to the deepening of the theory and practice. RBI, SEBI is star examples for the above-mentioned fact. Nowadays, it has become a trend to establish a regulator for each field, with the recent ones being the IBBI under Insolvency and Bankruptcy Code; and RERA under the Real Estate (Regulation and Development) Act. With the regulators occupying a crucial position, it is significant that the legislations and rules governing such regulators are in line with the changing economic and social conditions so as to provide the best practice.
The Competition Commission of India, regulator regulating the competition in the economy has become almost two decades old. As stated earlier, the Indian economy has very much evolved since 2002 and the practice of CCI is also evolving with its regulation and guidelines by Courts of Law. But, there needs to exist a definitive code clearly defining the role of CCI. The Committee has analyzed the different aspects of the functioning of CCI and gave ample recommendations for its improvement. None of such recommendations were new to the CCI as it has been following all those recommendations in one way or the other. Hence, it won’t be difficult for the CCI to adopt these changes when the amendment comes into effect. The need for such amendment is only to have an authority to resort to when such functions are not performed. Apart from that, the CCI, though the amendment has not been carried out yet, must follow the recommendations given by the Committee in the interest of its effective functioning in order to suit the international best practices.
[1]. Raghavan Committee Report, 2000, available at https://theindiancompetitionlaw.files.wordpress.com/2013/02/report_of_high_level_committee_on_competition_policy_law_svs_raghavan_committee.pdf
[2]. OECD, ‘OECD Economic Surveys: India’ (2007), 109.
[3]. Shreya Nandi, India Slips to 7th Position in Global GDP Ranking, Live mint, (Aug 2nd, 2019), https://www.livemint.com/politics/policy/india-slips-to-7th-position-in-global-gdp-ranking-1564747117029.html
[4]. Government Constitutes Competition Law Review Committee to review the Competition Act, Press Information Bureau, Government of India (MCA), (Sept 30th, 2018), https://pib.gov.in/newsite/PrintRelease.aspx?relid=183835
[5]. CCI v. Steel Authority of India (2010) 10 SCC 744
[6]. (2019) SCCOnline Del 8032
[7]. The Committee recommended amendment of section 8 of the Competition Act to provide for governing body with 6 whole time members and 6 part time members. The six part time members include 4 eminent persons and 2 ex-officio members. The committee also recommended that the governing body should not involve in the discharge of adjudicatory body of CCI and confine its functions to quasi legislative and supervisory function so as to maintain clear separation between executive, quasi legislative and adjudicatory functions.
[8]. Section 19 of SEBI Act.
[9]. Section 230 of IBC.
[10]. Section 16 of Competition Act, 2002.
[11]. Supra n.5
[12]. Adopted by Australia and Jamaica
[13]. Adopted by South Africa, Chile and Canada
[14]. UNCTAD, Intergovernmental Group on Competition Law and Policy (2011), Para 8, available at http://unctad.org/en/Docs/ciclpL2_en.pdf ; Integrated Agency Model is adopted by European Union, United States, China and Brazil.
[15]. Section 7(4) of the Competition Act
[16]. Section 53(B) (5) of the Competition Act.
[17]. Section 64 of the Competition Act
[18]. (2016) 7 SCC 703
[19]. Administrative Procedure Act, 5 U.S. Code 553, Section 4 ‘Rule Making’
[20]. The Legislative Instruments Act 2003 Section 18.
[21]. Supra n.1
[22]. Planning Commission of India, Eleventh Five Year Plan, 2007-12, Vol.1
[23]. (2017) 8 SCC 47
[24]. Section 22 of the Competition Act.
[25]. Supra n. 6
[26]. Supra n. 5
[27]. Section 21 & 21A of the Competition Act; For example, TRAI is empowered to ‘facilitate competition’ in telecommunication sector (TRAI Act, Section 11)
[28]. OECS, ‘Commitment Decisions in Ant- Trust Cases’, (June 23rd, 2016), http://one.oecd.org/documents/DAF/COMP(2016)/en/pdf
[29]. 2015 SCC Online Mad 7099
[30]. Section 49 of the Competition Act
[31]. The Committee engaged the Indian Institute of Management, Ahmadabad to conduct the impact assessment study.
[32]. Report of Competition Law Review Committee, Ministry of Corporate Affairs, (July 2019) available at http://www.mca.gov.in/Ministry/pdf/ReportCLRC_14082019.pdf