Analysing the Joint Parliamentary Committee Report on the Competition Amendment Bill, 2022

The Joint Parliamentary Committee on Finance on 14-12-2021, released its Report¹ on the Competition (Amendment) Bill, 2022² (Bill) after consultation with the Ministry of Corporate Affairs, Competition Commission of India (CCI), Competition Law Review Committee (CLRC) and other stakeholders that included entities from the antitrust industry such as law firms, Federation of Indian Chambers of Commerce & Industry (FICCI), practitioners, etc.

Overview of the Bill

In order to govern mergers and acquisitions based on the value of deals, the Bill aims to alter the Competition Act, 2002.³ Transactions with a value greater than Rs 2000 crores will need CCI approval. It suggests reducing the timeframe for the CCI to pass an order on such transactions. Additionally, it broadens the range of organisations that may be determined to be parties to anti-competitive agreements. Currently, organisations or individuals operating in related industries may be considered parties to anti-competitive agreements. Additionally, it offers a structure for agreement and dedication to hasten the conclusion of inquiries into anti-competitive agreements and misuse of dominant position.

Acquisition of firms dealing in digital markets⁴ might not be covered by the standard asset or turnover thresholds used to assess their impact on competition as they are valued depending on the data or specific business innovations. According to the Bill, the value of the transactions should be used to evaluate such deals. The Bill requires 25% of any amount imposed by CCI to be deposited before an appeal against a CCI order is brought before the NCLAT. It is debatable whether a required deposit should be specified in the law. Additionally, it permits the defence of intellectual property rights in situations involving anti-competitive agreements. In situations where a dominating position has been abused, this defence is not applicable.

Key issues discussed in the Report

Deal value threshold, settlements, commitments and control

The Committee noted that the meaning of value of transaction in the current Bill does not guide on how the deal value is to be calculated⁵ and the meaning of direct, indirect, and deferred consideration and that shall lead to uncertainty. Therefore, it has been recommended that the value of transaction be calculated based on the regulations that the CCI will issue; and the thresholds of the turnover, value of assets, and value of transaction be reviewed by the Central Government every year instead of every two years.

The Committee recommends allowing the party concerned to withdraw out from the commitments or settlements⁶ process, as under the proposed amendment in the Bill the only way for midway withdrawal from the process is only if CCI rejects the application on grounds of an inappropriate offer or if the CCI and party do not reach an agreement. Hence, it recommends that the proposed Section 48-A shall be modified by inclusion of the following proviso —

“Provided that the applicant under sub-section (1) shall have the right to withdraw the application within 7 working days from the date of the hearing. In the event of withdrawal of the application, the Commission shall proceed with its inquiry under Section 26 of the Act, without any prejudice to the settlement offered.”

On the issue of inclusion of cartels in the scope of settlements, it is recommended that CCI should consider expanding the scope of settlements to include cartels also as a pragmatic recourse to the entire process. It further recommends that there should be an enabling provision to allow the applicant to apply to the CCI to revisit the settlement or commitment after the order of the final settlement by the CCI as one last opportunity to do so noting that the Bill is silent on whether an application for settlements and commitments requires an admission of guilt.

While analysing the term “material influence”⁷ being used in the definition of control in the current Bill, the Committee noted that details of what may constitute “material influence” may be provided in subordinate legislation i.e. through regulations, etc. specified by the regulator. The Committee has agreed to retain the “material influence” standard in the definition of control on the grounds that this is the current practice adopted by the CCI. The Committee has however recommended that appropriate regulations specify definitively the scope of what constitutes “material influence”.

Hub & cartels, IPR in abuse of dominance and effect-based test

The Committee noted that the Bill has expanded the scope of cartels as to include hub-and- spoke arrangements⁸ implemented by entities involved at different levels of the value chain. However, there is no clarity on the meaning of “active participation in the agreement” which could potentially cover— (a) entities merely providing intermediation services in digital markets, for instance online platforms; and (b) consortiums, industry associations and trade unions that merely organise meetings without an agenda to share sensitive information. Therefore, it has been recommended to modify Clause 4 of the Bill such that only where the intention of a platform to participate in an anti-competitive agreement is proved, would it be liable for a cartel infringement. Facilitating information exchange with no intention, knowledge or concern about the cartel arrangement cannot be actionable as a cartel.

The Committee recommends that it would be desirable that the CCI considers specifically the rights that a party may have regarding reasonable exercise of its intellectual property rights (IPR) when dealing with abuse of dominant position cases to avoid any uncertainty. Unlike Section 3⁹ of the Act which carved out an exception for reasonable exercise of intellectual property rights in relation to anti-competitive agreements, Section 4¹⁰ of the Act did not have any such provision. In the absence of such an “explicit” defence enshrined under the Act, the CCI did not allow any dominant entity to provide a defence for reasonably protecting its IPR while being investigated for alleged abuse of dominance. This ensures consistency with the rights of an IPR holder under the relevant statutes. Therefore, the Committee recommends addition of this defence as sub-clause (3) to Section 4 of the principal Act that nothing in Section 4 shall restrict right of any person to restrain any infringement or impose reasonable conditions as necessary for protection of his rights as conferred upon by all the legislations dealing in IPR (Copyright Act¹¹, Patents Act¹², etc.).

With regard to the adoption of “effect-based test”¹³ for abuse of dominance, the Committee agreed to the opinions of the CLRC that no amendment is required on the issue of “effect-based test” as the Act does not expressly mandate the CCI to undertake an effect-based analysis while determining abuse of dominance under Section 4 of the Act. It was noted that under this test, a regulator looks at different factors like impact on consumers, innovation, and the competition before adjudication conduct as violative of the competition law. However, the Committee has recommended the insertion of an effect-based test for Section 4 of the Act. The Act does not presently expressly mandate the CCI to undertake an effect-based analysis while determining abuse of dominance under Section 4 of the Act. The existing decisional practice in this regard is inconsistent. An effect-based analysis has been carried out in various cases including in Dhanraj Pillay v. Hockey India¹⁴ and in Schott Glass India (P) Ltd. v. CCI¹⁵. In contrast, in MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd.¹⁶ and as recently as CCI's decision passed in Umar Javeed v. Google LLC¹⁷, a per se standard was followed.

Procedural timelines, deposing of legal advisors and issue of judicial member

On the issue of the timeline, the Bill amends, (a) to form a prima facie opinion that has been reduced from 30 days to 20 days; and (b) to pass an order for approval of combinations that has been reduced from 210 days to 150 days. In agreement with the opinion of CCI and stakeholders, the Committee has recommended that the abovementioned timeline shall remain unchanged. The Committee acknowledged CCI's clarification that the existing clearance timelines of 17 days quoted by the Ministry of Corporate Affairs did not account for clock stops and public holidays. The Committee recognised that a reduction in timelines may adversely affect the review process to suggest that the review timelines for Phase I clearance not be amended.

While addressing the provision regarding the ability of the Director General to depose legal advisors¹⁸ the Committee recommends that the clause that clarity must be provided by the relevant clause in the Bill that nothing in Section 41¹⁹ shall be in contravention of the Evidence Act²⁰ or any other Act protecting attorney-client privilege. It will allow the Director General to examine legal advisors goes against attorney-client privilege and is against the Evidence Act and the Bar Council of India Rules²¹ which shall also apply to external or independent advocates. Furthermore, it recommends that under the proposed definition of “agent” in the Bill, all legal advisors employed by a company or firm will be included within the definition of any of the officers and other employees and agents of the parties being investigated.

Furthermore, on the issue of requirement of a judicial member, the Committee has taken note of the decision of Delhi High Court in Mahindra Electric Mobility Ltd. v. CCI²² where it was held that it is imperative for the CCI to have a judicial member when issuing its final orders; and the Report of CLRC that recommended having judicial member in the CCI. Furthermore, since the decision is pending in an appeal before the Supreme Court of India and shall be in consonance with the directions of the Supreme Court.

Way forward

The recommendations of the Committee look wholesome and welcoming. The settlement and commitments standards have been proposed in line with the international best practices, while the timely review of merger control under the deal value threshold is quintessential. The recommendation on adoption of effect-based test will help bring consistency in the approach followed by the CCI to determine whether an entity is abusing its dominant position. However, there are certain provisions of the Bill that have not been addressed by the Committee that include the independence of DG and CCI, reduction of mandatory penalty pre-deposit of 10% of the penalty amount for appeal and reference to Section 20(1)²³ of the Act under Section 43-A²⁴ of the Act.