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Competition Law: Glancing Back, Looking Ahead
by Akash Choubey and Saurabh Mishra*
Cite as : (2004) PL WebJour 17
Introduction
Since the last decade, Indian market has witnessed a paradigm shift, from regulated economy towards liberalisation. For attainment of technological dynamism and international competitiveness, it is necessary to have a strong national anticompetitive regime which can complement liberalisation policy. At the turn of the 20th century, 80 countries had enacted competition legislation and 60% had introduced this in the 1990s. Another 20 or more countries are in the process of drafting and enacting competition laws. Countries with competition laws account for nearly 80% of the total world output and 86% of world trade. This acknowledges an increasing realisation that an appropriate legal framework is essential to encourage competition.
In the wake of these developments, the Indian Parliament recently passed “the Competition Act, 2002” (12 of 2003) (hereinafter referred to as “the Act”) to replace the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as “the MRTP Act”). The latter is no longer relevant in the changing economic scenario. It drew inspiration from Articles 38 and 39(b) of the Constitution, which seek to prevent concentration of economic power and ensure that the material resources of the country are so distributed as to subserve the common good. However, it created entry barriers to new firms. Clearances had to be obtained for expansion and capacity licences were issued under a control system. Even agreements for the import of foreign technology required approval.
Prior to the enactment of the Act, in furtherance of the industrial policy statement of July 1991,1 ..amendments were made in the MRTP Act. Still the pre-entry restrictions under the MRTP Act on the investment decision of the corporate sector outlived its utility and became a hindrance to the speedy implementation of industrial projects. Ten years after this amendment, the Government realised that the whole set-up had become an anachronism, and S.V.S. Raghvan Committee was set up to suggest ways and means to promote competition. Based on the recommendations of this Committee, Parliament passed the Competition Act, 2002.
This paper reflects our endeavour to explain what has been the international position on the need for competition laws, what constitutes anticompetitive practices, and most importantly, what the new Indian legislation has to offer on the issue. In addition to this, it also highlights the distinction between the two most distinctive models of competition law viz. the EC Treaty on Competition Law and the US Sherman Act. Lastly, the article critically examines the shortfalls of the Act and suggests ways to improve it.
International position on competition
Increased globalisation indicates that the effects of restrictive business practices are felt beyond national borders. However, it should be noticed that such practices could reduce the benefits of open trade and investment liberalisation in at least three ways:
(1) first, international cartels among multinational firms would fix prices or allocate world markets;
(2) second, import cartels and adoption of exclusionary practices by firms with a dominant position in domestic market;
(3) third, export cartel and firms with dominant position in a home market.
The determining question which now surfaces is the relationship of trade and competition policy.
Although the entire WTO system is based on free trade, yet there is recognition of interventions by national legislation relating to competition. Like the goal of establishing a liberal trade policy, the goal of competition policy is generally to ensure that markets are open and competitive which promotes the efficient allocation of resources.2 Competition law complements trade policy by ensuring that the reduction or elimination of government barriers to trade are not negated by anticompetitive behaviour of private firms through the abuse of market power or through collusive behaviour.3
Thus, both these two policies, namely, a free trade policy and an effective law against anticompetitive behaviour aim at eliminating or reducing the market distortions and barriers to market entry.4 Competition policy, for example, has as its focus “behind the border” (national) issues rather than international issues. Trade policy, on the other hand, addresses “at the border” governmental measures. Competition policy is directly connected with efficient allocation of resources within the narrower national market.5
The view that private anticompetitive behaviour could undermine global trade liberalisation was appreciated as early as in 1947 when it was proposed to add the provisions of Chapter V of the Havana Charter dealing with cartels to GATT 1947. Proposals to resuscitate the same failed in 1955.6
In 1997, Working Group on the Interaction between Trade & Competition (WGTCP) was set up pursuant to the Singapore Ministerial Declaration. The practices affecting market access such as import cartels, international cartels, abuse of a dominant position through exclusionary practices, vertical restraints which foreclose markets to competitors7 etc. constituted the first category of restrictive practices.
It was in 1980 that the issue of restrictive business practices and the effect of international trade once again surfaced in the context of GATT dispute-settlement proceedings.
The existing national legislation embodying competition policy is left intact and is not sought to be regulated by WTO in any way at the present juncture.
GATT and its successor WTO have progressively removed or lifted government barriers on trade. The question whether natural regulations to remove barriers in a country should be resorted to has arisen quite often. It is now asserted that national competition legislation directed at private anticompetitive conduct is a natural complement to a set of international rules regulating government barriers to market access.
Understanding anticompetitive agreements
Broadly classifying, there are two models of anticompetitive practices viz. (a) microeconomic model, and (b) macroeconomic model.
The microeconomic model is popular in the United States, which counsels no antitrust intervention unless the transaction is likely to diminish aggregate consumer or total wealth. In the US the guiding principle was the rule of “quantitative substantiality”, which stated that if competitors were blocked from substantial competitive activity or foreclosed from a substantial percentage of the market, the practice was illegal.8 Thus, the US antitrust laws were robust to many observers as they prohibited many “normal” business transactions; they had overexpanded, in favour of helping the underdog and dispersing power.
The US Supreme Court attempts to safeguard markets from exclusionary practices because antitrust law was a mechanism to preserve the competitive functioning of the market, to minimize privilege and power, and to safeguard competition on the basis of merit. The law sought to promote openness, opportunity and freedom from coercion by firms with power.9
But much of the Supreme Court jurisprudence has long since been overruled. Beginning in 1980-81, there emerged a new paradigm for American antitrust: a rule of non-intervention in the absence of conduct that is likely to reduce consumer surplus. Loss of competitive opportunity on the merits is no longer deemed “anticompetitive” under US law. Law against “mere” exclusionary harms is denigrated as law that protects inefficient competitors and harms consumers.10
The second model is the macroeconomic model, in which the analyst looks at the market structure and dynamics, and asks whether the practice interferes with and degrades the market mechanism. Freedom of trade (and competition and innovation) without artificial market obstruction is presumed to be in the public interest, especially the public’s economic interest.11 Barriers must be justified. By this metric, unjustified exclusionary practices are anticompetitive and should be prohibited.
Apart from these two models, “horizontal and vertical restraints of trade”12 are also considered as being anticompetitive. A horizontal restraint of trade involves collective conduct which weakens or restrains competition among firms in the same market. They include agreements among competitors by which they restrict their freedom to compete in agreed-upon ways. The focus is on collusive behaviour among competitors. In the context of international trade, two of the more important types of horizontal restraints are:
(a) price fixing, and
(b) export and import cartels through which territories are allocated.
Most competition laws treat naked agreements to fix prices, rig bids, limit output or divide markets very harshly and as illegal per se.
On the other hand, vertical restraints are practices that confine, constrain or inhibit the action of two or more parties at different stages of production or distribution chain, such as manufacturer-distributor relationships. Some nations expand the concept of harm to competition to include harm to the competitive dynamics among small and middle-sized firms. This approach tends to protect small firms from efficient competition, such as sustainable low-price competition, and therefore is protectionist.
Finally, an abuse of dominant position is another practice which is termed as anticompetitive. A dominant position is defined as the ability to act independently of competitive forces.13 The determination of a dominant position will normally require definition of both a product market and a geographic market. Cartels are generally considered as a group that practices abuse of dominant position. The Act also recognizes cartels as an association of producers, sellers and the like, who by an agreement amongst themselves, limit, control or attempt to control market forces.14
Anticompetitive practices under the Competition Act
Under the Act any agreement which is anticompetitive is void.15 It recognizes four kinds of anticompetitive agreements. An agreement entered into between enterprises or association of enterprises or persons or association of persons or between any person and enterprise, including cartels, engaged in identical or similar trade of goods or provisions of services, which do the following—
(a) directly or indirectly determines purchase or sale prices;
(b) limits or controls production, supply, markets, technical development, investment or provision of services;
(c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;
(d) directly or indirectly results in bid rigging or collusive bidding.
However, the same shall not apply to a joint venture if the agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.
The following are examples of anticompetitive agreements that have been recognized under the Indian Act:
(a) Tie-in arrangement.—A tie-in arrangement includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods.
(b) Exclusive supply agreements.—It includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person.
(c) Exclusive distribution agreement.—It includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods.
(d) Refusal to deal.—It includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought.
(e) Resale price maintenance.—It includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged.
(f) Bid rigging.—Bid rigging means an agreement between enterprises or persons engaged in identical or similar production or trading in goods or provisions of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding.16
(g) Predatory pricing.—It is the use of short-run price cutting in an effort to exclude rivals on a basis other than efficiency in order to gain or protect market power and as pricing so low that competitors quit rather than compete, permitting the predator to raise prices in the long run. Predatory pricing is “an investment in future monopoly, as sacrifice of today’s profits for tomorrows”.17
European Commission and the United States on competition
The two benchmarks on competition law in the world are the competition law of the European Community (“EC”) and the Sherman Act of the United States. Both these laws have provisions dealing with anticompetitive agreements and with the unilateral conduct of firms with significant market power. However, it shall be erroneous to draw symmetry between these two competition laws.18
Unlike the US economy, which was largely integrated and continental in scope at the time of the passage of the Sherman Act in 1890, EC was created in 1957 in order to establish a new European common market, and with a view to promote throughout the Community a harmonious development of economic activities.19
EC competition law is a system principally based on the notification and approval by the European Commission of restrictive agreements where they either do not significantly restrict competition or where the practices otherwise serve the needs and interests of the Community.20
The EC system does not include criminal penalties nor does it have a significant private right of action for damages. It, however, can levy fines of up to 10 per cent of the annual turnover of the firms involved.21 It further makes room for member States’ competition policies so long as they do not interfere with the enforcement of competition on a consistent basis at the Community level.22
Article 85(1) of the EC Treaty prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member States, and which have as their object or effect the prevention, restriction, or distortion of competition within the common market. Unlike Section 1 of the Sherman Act, Article 85(1) contains a partial list of specific types of anticompetitive agreements and practices which are prohibited.
The definition of agreements and concerted practices under Article 85 is quite broad. Article 85 applies to both formal and informal agreements. Violations may be proved through direct and circumstantial evidence. Article 85 also reaches concerted practices which may include conduct not rising to the level of a contract, combination, or conspiracy as understood in the United States antitrust law.23
Section 1 of the Sherman Act, appears on its face to prohibit all restraints of trade. However, when read against the common law background of the Sherman Act, the US Supreme Court held that Section 1 of the Sherman Act would be interpreted to prohibit only those restraints which, on balance, unreasonably restrain competition.24
The EC system is quite different. Article 85(3) of the EC Treaty is applied to exempt anticompetitive agreements that further the goal of Community integration and the transcendence of national markets.
Article 86 of the EC Treaty is the Community provision dealing with the unilateral behaviour of firms with significant market power and prohibits any abuse by one or more undertakings with a dominant position within the common market, or in a substantial part of it, as unlawful insofar as it may affect trade between member States. Accordingly, the acquisition or creation of a dominant position is not condemned,25 but the behaviour of firms with such a degree of power is strictly scrutinized.26
The European Court of Justice, in Akzo Chemie BV v. European Commission27, recognized predatory pricing as one of the examples of an abuse of dominant position. Price discrimination between member States is another pricing policy which is contrary to the aims of the Community and has been condemned under Article 86.28 The EC Treaty, apart from containing an extensive definition of concentrations which includes traditional mergers and acquisitions, also covers certain joint ventures that are “concentrative” rather than “cooperative” in nature.29
Thus, there are divergent views on competition policy in Europe and in the US. The US law focuses on the consumer whereas in Europe, industry is focused. But in both regions, competition policy is based on the idea of avoiding concentration of economic power. EC competition law represents a model which integrates competition principles into the broader traditions of a social market economy in which Governments intervene more frequently and more directly in economic and social issues. The broader principles embodied in EC competition law appears very attractive to the rest of the world, potentially even more so than the pure-competition approach of the Sherman Act. Its influence will continue to be felt around the world in the continuing debate over the proper values underlying competition law, especially as nations begin the laborious work towards harmonisation of competition law.
Salient features of our Competition Act
- ( The Preamble declares the need for establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect interests of consumers and to ensure freedom of trade carried on by other participants in markets.
- ( Competition Commission of India.—The Competition Commission of India (hereinafter referred to as “CCI”) is a quasi-judicial and corporate body, having perpetual succession and a common seal. CCI also has the power to acquire, hold and dispose of property, both movable and immovable, to contract and can sue or be sued.30
- ( Benches of CCI.—There shall be a Principal Bench presided by the Chairperson. Other Benches shall be known as Additional Bench(s)31 and Merger Bench(s).32 Every Bench shall consist of at least one Judicial Member, who is qualified to be Judge of a High Court.
- ( Powers of CCI.—CCI may look into any alleged violations under the Act, (a) either on its own motion, or (b) on receipt of a complaint from any person, consumer or their trade association,33 or (c) on references made by the Central Government, State Governments or any statutory authority.34 CCI is not bound by the procedure laid down by Code of Civil Procedure, 1908 and must only follow the principles of natural justice. CCI, thus, has the power to regulate its own procedure.35
- ( Relief under the Act.—CCI has the power to grant interim relief,36 award compensation, power to impose penalty37 and to grant any other appropriate relief. CCI also has the power to levy penalty for contravention of its orders, making of false statements or omission to furnish material information, etc.
- ( Appeal from CCI.—Any person aggrieved by any decision or order of CCI may file an appeal to the Supreme Court within 60 days from the date of the communication of the decision or order.38
- ( Power to issue directions.—The Central Government shall have the power to issue directions to CCI on questions of policy and the same shall be final. However, any such direction shall be preceded by an opportunity to CCI to express its views on it.39
- ( Power to supersede CCI.—The Central Government shall have the power to supersede CCI for a period not exceeding six months, if it is of the opinion that (a) CCI is unable to discharge its functions or perform its duties, or (b) has persistently made default in complying with the directions of the Central Government, or (c) under the circumstance it is necessary in public interest.
- However, a reasonable opportunity has to be given to CCI to make representations against the proposed supersession.40
- ( Director General to investigate.—The Director General shall have investigative powers for any contravention of the provisions of the Act. However, the same shall be used only on the directions of CCI. The Director General does not have any suo motu powers for initiating investigation.41
- ( Extent of penalty.—For abusing its dominant position or entering in anticompetitive agreements, CCI can levy penalty to the extent of 10 per cent of the average of the turnover for the preceding three financial years.42 The penalty is higher in case of such abuses by cartels and penalty can be equivalent to three times of the amount of profits made out of such agreement by the cartel or ten per cent of the average turnover of the cartel for the preceding three financial years.43
- ( Division of dominant enterprise.—CCI can recommend the Central Government division of a dominant enterprise to ensure that it does not abuse its position. On the recommendation, the Central Government under Section 28 may direct division of such an enterprise.44
- ( Competition Fund.—The Act provides for constitution of a “Competition Fund”, which shall comprise of all the government grants, monies received as costs from parties to proceedings before CCI, fees received and interest accrued thereto.45 Salaries and allowance of the staff of CCI and other expenses are to be borne out of the Fund.
- ( Audit.—The accounts of the Competition Fund shall be audited by the Comptroller and Auditor General of India, and shall be tabled by the Central Government before each House of Parliament annually.46
- ( Competition advocacy.—CCI shall take measures for promotion of competition advocacy, creating awareness and imparting training about competition issues.47
- ( Exclusion of jurisdiction of civil courts.—No civil court has the jurisdiction to entertain any suit or proceeding which CCI is empowered by or under the Act to determine. Also, no injunction can be granted by any court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act.
- ( Repeal MRTP Act and dissolve MRTP Commission.—The Act has repealed the Monopolies and Restrictive Trade Practices Act, 1969 and has dissolved the Monopolies and Restrictive Trade Practices Commission.48
- ( Transfer of cases.—The cases pending before the MRTP Commission will be transferred to CCI, barring those which are related to unfair trade practices and the same are proposed to be transferred to the National Commission constituted under the Consumer Protection Act, 1986.49
Critical comments on the Competition Act
Though the Act substantially covers all aspects, it still leaves ample scope for improvements. Assimilation of CCI as a corporate body and at the same time describing it as a Tribunal makes it of a somewhat hybrid character. Though as a corporate body it can sue and be sued, as a quasi-judicial body it cannot, generally do so. The position has to be clarified.
There are two provisions in the Act which substantially defeat its independence. Section 50 provides for grants by the Central Government to CCI. The Act provides that the salaries of the staff and other expenses shall be met by the Competition Fund.50 Here lies the catch. Such a provision takes away the independence and autonomy of CCI by including grants by the Central Government as a part of the constitution of the Competition Fund. Thus, CCI has to circuitously depend on the Central Government for meeting its infrastructural and other expenses. Further, CCI is bound to follow any policy directions given by the Central Government.51 And, Section 56 empowers the Central Government to supersede CCI by issuing a notification and giving reasons for the same. CCI being a quasi-judicial body would be appointed by the executive and such power to supersede would severely affect the independent functioning of the Commission. On one hand, it is said that CCI is a quasi-judicial body and on the other hand, the Act mandates that its decisions are not final. Even the MRTP Act never had any such provision.
Some of the market analysts have apprehended that implementation of the Act in its present form will be nothing less than a declaration to kill our national companies.52 The Act talks of competition but, at the national level, it is a competition between a mouse and a cat. The Act is opening the entire country to the world for competition. The Act does not retain any specific provisions to protect the interests of the domestic industry, which is exposed to international competition unlike the US law. There Section 201 of the Trade Act, 1974 of the US has been applied to increase imports regardless of whether their importation is the result of any unfair competition. The only concern under Section 201 is whether the imports are a substantial cause of serious injury to a US industry; the specific trading practices of the foreign seller, fair or unfair, are irrelevant. If the requisite injury and causation are established, and relief ordered and accepted by the President, that relief operates against all imports i.e. from all foreign producers in all countries.
Similarly, Title VII of the Trade Agreements Act of 1979 and Section 337 of the Tariff Act of 1930 apply broadly to “unfair methods of competition and unfair acts” in US import trade, but in practice it has been applied essentially to exclude imports that infringe on US patent rights or violate other intellectual property rights, such as trademarks and copyrights. Looked in this perspective it is felt that the legislature must incorporate provisions to safeguard the domestic industries against the fierce global economic competition.
Cartels, particularly the hard-core cartels have a grave and adverse effect on the economy and consumers, and as they are difficult to detect and prove, the provisions should be as deterrent as possible. It is suggested that to make the law more preventive, the Act should incorporate criminal proceedings against the persons involved at the appropriate criminal court in case the cartel is proved. The UK recently amended its competition law to include personal criminal liability.53 The relevant law of the US also incorporates such penal provisions and experience has shown that they have had a considerable deterrent effect.54
Further, the Act fails to provide a “stick and carrot” approach in the form of heavy fines and criminal proceedings against the violators coupled with the promise of leniency for the whistle-blower which has been proved to be very effective in uncovering and prosecuting hard-core cartels in many countries including the US and EU.55
Article 40 of TRIPS provides for control of anticompetitive practices in contractual licences. It says that TRIPS does not prevent countries from specifying in their legislation licensing practices or conditions that may in practice constitute an abuse of intellectual property rights (“IPRs”) having an adverse effect on competition in the relevant market. Similarly, Article 31 of TRIPS allows granting of compulsory licences in anticompetitive situations. A good competition law cannot afford to be silent in addressing IPRs in this fast-changing global economic environment. But the Indian law vide Section 3(5) of the Act excludes “licensing agreements” with respect to IPRs from the purview of regulating anticompetitive agreements. Often it has been experienced that IPR relationship between two firms end up in cartels or anticompetitive conducts. CCI is required to keep an eye on such relationships as a part of its proactive role. So, unless there is some provision with respect to IPR in the Act, CCI may tend to ignore such relationships as the same does not lie under its jurisdiction.
The Act regulates only those mergers and acquisitions which qualify under the definition of “combination” under Section 5. In practice, there may come up a situation where a merger may not come under the definition of “combination” under Section 5, largely because of the benchmarks prescribed therein, yet it may give rise to grave anticompetitive practices. This situation has to be avoided.
Further, mergers of companies are being governed by the High Courts and the Securities and Exchange Board of India, and now the same would be within the purview of CCI. It is felt that this may give rise to a peculiar situation where there may be overlapping of powers of three distinct forums with regard to mergers.
Section 19(3) of the Act lays six factors for determining “whether an agreement has an appreciable adverse effect on competition”.56 Yet the language of the sub-section tends to create confusion while interpreting the same. Clauses (a) to (c) of Section 19(3) are the grounds which the Commission may consider while establishing “appreciable adverse effect”, whereas clauses (d) to (f) provide the defences and exemptions which may be relevant to negate the presence of “appreciable adverse effect”. The intent would have been clearer had separate sections on both these aspects been provided.57
The Act confers an option on any statutory body to make a reference to CCI with respect to a decision which the statutory authority has taken or proposes to take, is or is likely to be contrary to any of the provisions of the Act. However, for making such a reference the condition precedent is raising of the same issue by any party before it.58 It is suggested that apart from issue being raised by any party, any statutory authority also on its own should have been allowed to make such a reference.
Further, CCI should also have been empowered, on approval by the Central Government, to inquire and investigate on its own in any sector being regulated by a statutory authority, if it feels that an anticompetitive situation has arisen or is likely to arise.
Finally, Section 32 authorises CCI only to “inquire” for acts taking place outside India but having an effect on competition in India. It is suggested that CCI should have also been given powers to pass appropriate “orders” apart from inquiring in such matters. The Act should also have incorporated provisions conferring necessary powers to the Commission seeking cooperation from authorities in other countries in investigation and implementation of its orders with respect to cross-border anticompetitive practices.
Concluding remarks
The Indian legislature deserves accolades for the prompt enactment of this much-needed piece of legislation. In retrospect, the highlight of the Act is its intent which not only prohibits anticompetitive agreements which are detrimental to the consumers and the market but also prohibits any agreement which is likely to cause an appreciable adverse effect on competition.
In a developing economy where, incipiently, economic power is not fairly distributed, the new competition policy is expected to play the dual role of raising the power, within reasonable bounds, of underprivileged economic agents to become viable participants in the process of competition on the one hand, and of establishing the rules of fair and free competition on the other. If these two objectives are not met, unfettered competition will simply help a handful of privileged big firms to monopolize domestic markets that are usually protected through import restrictions. This will then give rise to public dissatisfaction.
Secondly, “fair and free” competition is an essential requirement for sustained economic growth. Without fairness, freedom alone may not achieve the desirable outcomes expected from competition, especially in developing economies where unfair elements can be exacerbated by competition. Despite the practical importance of fairness in competition policy, it would be difficult to have a practical yet socially agreed-upon concept of fairness due to diverse individual value judgments. CCI should therefore bear in mind the global rules of the economic game while implementing the Act.
“19. (3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under Section 3, have due regard to all or any of the following factors, namely—
(a) creation of barriers to new entrants in the market;
(b) driving existing competitors out of the market;
(c) foreclosure of competition by hindering entry into the market;
(d) accrual of benefits to consumers;
(e) improvements in production or distribution of goods or provision of services; or
(f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.”
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