Chapter IV

The overview of Competition Regime in India - The Competition

mechanism, its establishment, functioning and its efficacy

Introduction
How the Competition Law beneficial to the Indian Economy
Objectives of the Act
Competition Policy and Competition Law
Consumer Interest and Public Interest
Conflict between Public Interest and Consumer Interest
The Competition Law of today and of Yesterday

Part (A) Anti competitive Agreement;

Introduction
Anti Competitive Agreement __Appreciable adverse effect
Anti Competitive Agreement __ Competition within India
Rules for determining effect on competition Under Indian Competition Act
Telco case
Carterlisation
Objectives of Cartels
Cartels under Indian Competition Law
Anti competitive Agreement ---- Agreement s fixing prices
Anti competitive Agreement---- Agreement to limit and control production and,
Anti competitive Agreement ---- Agreement on market allocation and sharing
Anti competitive Agreement ---- Bid rigging and Collusive bidding
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Exceptions under the Competition Act
Agreement not Anti competitive Export of Goods
Conclusion

Part (B) Abuse of Dominant Position

Introduction
Concept of Domaince and Abuse
Accessing Abuse
Accessing relevant market
Microsoft case
Factors for determining dominant position
Concept of collective dominance
Instruments of Abuse
Dominant Position ---- Abuse --- Predatory pricing
Predatory pricing under Indian Competition Act 2002
Abuse on pricing ---- discriminatory prices
Dominant Position ---- Abuse --- limiting or restrictive production
Practices resulting in denial of market access
Essential facility doctrine
Dominant Position ---- Abuse --- Tying and Bundling agreement
Acts in bonfide competition exempted
Conclusion

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Part (C) Combination /Mergers
Introduction
Definition of Combination under the Act
Advantages of Merger
Merger Analysis in India
When Combination /Merger considered as anti-competitive practices?
Factors for determining Combination s
Inquiry into Combination by Commission Domestic Nexus
Regulation of Combination in India
Intimation of Combination to Competition regulatory Authority
Kinds of Merger
Horizontal mergers
Vertical mergers and
Conglomerate
Joint Ventures and Mergers
Indian MNCs: Mergers and Acquisitions
Conflict between Competition Law and other sector regulators
Combination / Merger regulation under ---- Indian Companies Act 1956
Combination / Merger regulation under ---- Indian Income tax Act 1961 (ITA)
Combination / Merger regulation under ---- Security exchange Board of India (SEBI)
Foreign exchange Management Act 1999
Permission by the Court
Reserve bank of India s regulation on mergers
Conclusion
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 Chapter IV

Competition regime in India

In this chapter the researcher intended to discuss the evolution of the modern Indian Competition Law.
The Indian economy had been characterized by significant government involvement marked with the
dominance of large state owned public enterprises (SOEs). There existed lacunae in the older laws and
policies, which needed corrections as India moved ahead in creating a sound economic regulatory
regime aimed at delivering higher growth, creating more employment and ensuring distributed justice
to all. In order to realize this, India embarked on the path of economic reforms during 1990 s by shifting
to economic policies. Here in this chapter the researcher tries to evaluate the significance of competition
polices and regulatory regimes including the government polices that impeded competition, the objects
which are sort to be achieved by the Modern Competition Law. Further researcher intends to evaluate
the amendments made to said Act and to other National statues to make the Competition Law function
without any hurdles.

Introduction

Competition law is all about economic behavior. It is being increasingly recognized that
markets have an important role to play in any economy. Efficiency is associated with
competition and the markets can fulfill their functions efficiently only if they remain
competitive. As the role of the market expands, the role of the state also undergoes a
change. The regulatory role of the state demands action to maintain competitive conditions
in the markets. Legislation is therefore, required to prevent the degeneration of the markets
to a monopolistic or a near-monopolistic situation. Competition law is a framework of legal
provisions designed to maintain competitive market structures. Thus, competition Law,
broadly, relates to efforts at promoting competition through legislative means. Competition
law has grown enormously in recent years, especially since the early 1990s. Hundred s of
countries across the world have adopted competition law. One of the motivations for
introducing modern competition law s is to promote the growth of a competitive market.
There is evidence that competition in domestic markets, through both inter-firm rivalry and
entry of firms, results in higher levels and rates of growth in GDP per capita.

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India s new competition law, the Competition Act of 2002, was passed by parliament in the
year 2002 and received the assent of the President of India on 13 January 2003, thereby
becoming the law of the land from that date. The Act has an overriding effect over any
inconsistent provision in any other law for the time being in force and provided for the
establishment of Competition Commission of India. The Act was amended in September
2007 127 providing for setting up of a Competition Appellate Tribunal. The replacement of
the MRTP Act of 1969 by a new Competition Act is a natural corollary to economic
liberalization and opening up of trade to competition. Following the report of the Ragavan
Committee, After consultations with all concerned, including trade and industry association
and the general public, the Government of India passed the Competition Act in December,
2002 which was enforced as All-Indian Legislation. The Act is a central law in India, i.e., a
law of the Union Government and there is no corresponding law enacted at the level of the
constituent States. The Competition Act , 2002 sought to regulate (a) Anti -competitive
agreements ;(b) Abuse of dominance ; (c) Combination and mergers and to promote ( d)
competition Advocacy. The provisions relating to the above two are notified and provision
relating to Combinations is not yet been notified since there are serious concerns on how the
act applies to various commercial transactions. However, the need for a new law has its
origin in the Finance Ministers budget speech in February 1999;

The MRTP Act has become obsolete in certain areas in the light of international economic
development relating to competition laws. We need to shift our focus from curbing monopolies to
promoting competition. The Government has decided to appoint a committee to examine this range of
issues and propose a modern competition law suitable for our conditions"128 .

It is useful to understand the economic milieu which led India to enact this Act which aims
specifically at dealing with issues relating to the protection of the process of competition.
Number of factors impelled this step, the major ones being the obligation s cast on India by
the World Trade Organization (WTO) Agreements, viz. the General Agreement on Trade

127
The Competition (Amendment) Act, 2007 was brought into force on 12 October 2007, Notification No. SO 1746
[E] dated 12 October 2007.
128
The Budget Speech of Shri Yashwant Sinha, Finance Minister, GOI, 27th Feb, 1999 (Union Budget 1999- 2000).

120
and Services (GATS), Trade Related Aspects of Intellectual Property Rights (TRIPS) ,etc.,
and the entry of large multinational companies into India, consequent on India s measures
liberalizing trade. Most significantly Indian industry began to realize that, without
legislation specifically aimed at protecting the significantly, competitive process, they would
be at a disadvantage in the changed business environment. The government also considered
that the MRTP Act which was enacted to prevent Concentration of economic power and
was not the right mechanism suited to deal with the issues relating to the preservation and
protection of Competition. Furthermore being a member of WTO, it was also obligated that
the Indian Government to provide a legal means that would assure reciprocal rights to the
other member s of the WTO. Thus, Owing to the International obligations and internal
demands The Government of India s appointed Committee on Competition policy and Law
under the chairmanship of Mr. S.V.S Ragavan in October in 1999 for shifting the focus of
the law from curbing monopolies to promoting competition in the line with the
international environment129. The Committee recommended the enactment of the Indian
Competition Act, along with the setting up of a Competition Commission of India(CCI),
repealing of the Monopolies and Restrictive Trade Practices(MRTP) Act, 1969, and the
winding up of the MRTP Commission. The committee noted the steps already taken to
increase competition and suggested that;

Although significant steps have taken to increase competition in various sectors of the economy, a
number of important things need to be done that are essential for a competition policy. There is the need
for a competition Law Tribunal (Competition commission of India) that will act as watch dog for the
introduction and maintenance of competition policy. It will promote the introduction of the required
changes in the policy environment and once this is done, it will perform a proactive a dvocacy function
for the competition130 .

129
The Committee submitted the report to the prime minister on May 22, 2000. The need of the compr ehensive
Competitive law was also felt when large multi -national companies , taking advantage of India s liberalized
economic policy, permitting greater participation of overseas companies in economic activities in India established
their business in India.
130
Report of the High Level Committee on Competition Policy and Law Government of India, Para 2.9.7.
121
Furthermore, the Raghavan Committee Report stated that the essence and spirit of
competition should be preserved positioning the competition policy and laid stress on the
need to harmonize the conflict between the competition policy and other government
policies. It also highlighted that the Competition Policy has, as its central economic goal,
the preservation and promotion of the competitive process, a process which encourages
efficiency in the production and allocation of goods and services, and over time, through its
effects on innovation and adjustment to technological change, a dynamic process of
sustained economic growth. In conditions of effective competition, rivals have equal
opportunities to compete for business on the basis and quality of their outputs, and resource
deployment follows market success in meeting consumers demand at the lowest possible
cost. The report also emphasized that the formulation and implementation of government
policies should take into account competition principles.

Thus, the basic questions rises why do we need competition Law /Policy?
Well, the question was often asked whats the need to have a new law for the protection of
the consumers when we already had the Monopolistic and Restrictive Trade Practices Act,
1969 (MRTP Act) and Consumer Protection Act of 1986 and even doubted whether they
are not sufficient enough to deal with anti-competitive practices. Well, India needs a law to
curb anti-competitive activity and it was observed that MRTP Act was limited in its sweep
and hence fails to fulfill the need of a competition law in an age of growing liberalization
and globalization. Competition makes enterprises more efficient and offers wider choice to
consumers at lower prices. This ensures optimum utilization of available resources. It also
enhances consumer welfare since consumers can buy more of better quality products at
lower prices. Fair competition is beneficial for the consumers, producers/sellers and finally
for the whole society since it induces economic growth. Further, competition is desirable
because, among other things, it leads to at least three positive economic effects ;(i) the
allocation of resources to their most valued use (i.e. allocative efficiency) ;(ii) causing firms
to react to competition by reducing costs (i e productive efficiency); and (iii) causing firms to
innovate and introduce new products and new ways of producing products (i.e. innovative
or dynamic efficiency). Indeed, it has been observed that effective competition is necessary
for a domestic economy to realize the benefits of integration into the international economy
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and to encourage foreign investment131. Economic benefits can be achieved through
competition Law. Thus, it is understood from the above observation that, Competition is
not static, as it is designed to produce winners and losers. Furthermore, a competition law
primarily has three main items on its agenda. First and foremost, it aims to control the
formation of oligopolies and Carterlisation of economic activities. Firms colluding to fix
prices would be subjected to the terms of competition law. Secondly, competition law
concerns itself with affecting the working of existing monopolies. For instance, competition
law may constrain a natural monopoly (i.e. a firm in an industry where the market naturally
only supports the existence of one firm) attempting to set a price that may be considered
excessive. Finally, competition law also aims to prevent firm actions that serve to extend,
or move the market towards, a monopoly. Suppliers actions, such as offers of exclusive
territorial rights to retailers that reduce retailers incentive to compete, are potentially subject
to competition law. Thus, Competition law prevents artificial entry barriers and facilitates
market access and complements other competition promoting activities. The Raghavan s
Committee defines free competition as total freedom to develop optimum size competition
without any restriction. The main object behind the competition policy is to ensure
development and growth of Indian market and protection of consumer interest by increasing
fair competition and prohibiting anti-competitive practices. This object has also been
incorporated in the preamble of the Competition Act. The Preamble of the Competition Act
says;
An Act to provide, keeping in view of the economic development of the country for the establishment
of a Commission to prevent practices having adverse effect on competition, to promote and sustain
competition in markets, to protect the interest of consumers and to ensure freedom of trade carried on by
other participants in markets, in India, and for matters connected therewith or incidental thereto132.

The Raghavan Committee report discusses both Policy and Law of Competition. It
recommendated that the competition law should cover all consumers who purchases goods
or services, regardless of the purpose for which the purchase is made. The State Monopolies,

131
Asian Development Bank , Asian Development Outlook 2005 ; promoting competition for long term
Development ( Hong Kong ; Asian Development Bank ,2005 ) at 290 .
132
Preamble of Competition Act, 2002 ;( 2003) 1 Comp LJ 184 (St)
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Government procurement and foreign companies should be subject to the competition law.
Thus the Competition Act, therefore, seeks to:

Ensure fair competition in India by prohibiting trade practices which cause

appreciable adverse effect on competition in markets in India;
Promote and sustain competition in markets;
Protect the interest of the consumers;
Ensure the freedom of trade carried on by the other participants in the markets in
India ;

The objective of the Act is to protect the interest of the consumers. In order to do so, it
seeks to promote and sustain competition and to ensure fair competition and freedom of
trade. The use of the word protect in the preamble furnishes the key to the makers of the
Act. Various definitions and provisions which elaborately attempt to achieve this objective
have to be construed in this light without departing from the settled view that a preamble
cannot control the otherwise plain meaning of a provision. The Act provides for the
establishment of a quasi judicial body called Competition Commission of India (CCI)
with the following two basic functions:

Administration and enforcement of the Competition Law and Competition

policy to foster economic efficiency and consumer welfare;
Involvement proactively in Governmental policy formulation to ensure that
markets remain fair, free, open, flexible and adaptable.

The aim of the Competition Act 2002 is to prevent practices having adverse effect on
competition and abuse of dominance of enterprises either by entering into anti -competitive
agreements, or combinations. The Act typically focuses on four areas;

i. Anti-competitive agreements
ii. Abuse of the dominance
iii. Combination regulations and,
iv. Competition Advocacy

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However the 2002 Act essentially remained dormant due to the filing of a writ petition
before the Supreme Court133, which objected to the Rule allowing the government to select
the key members of the Commission. According to the petitioner, the Competition
Commission envisaged by the 2002 Act was more of a judicial body having adjudicatory
powers and thus, in keeping with the constitutionally recognized doctrine of separation of
powers, the right to appoint the members should rest with the Chief Justice of India or his
nominee. The Supreme Court ultimately dismissed the writ on January 20, 2005, noting
that it would be in the best interest of the Government to create two separate bodies, one
with expertise for advisory and regulatory functions, and the other for adjudicatory
functions. Following the dismissal of the writ, the Indian government took action to adopt a
bill that would protect consumers from anticompetitive conduct, while remaining true to the
doctrine of separation of powers. In this backdrop , the Act was amended in September
2007 providing for setting up of a Competition Appellate Tribunal headed by a Judicial
member to adjudicate appeals and the compensation claims arising out of the decisions of
Commission. Ever since its enactment in 2002, the provisions of the Act have selectively
been brought into effect. As of now only section 3, section 4 have been enforced and rest
are yet to be notified134. In competition law, there seems to be a duopoly situation as far as
the regulatory sphere is concerned. The Competition Commission of India is already in
place with several provisions of the Competition Act, 2002 having been notified take effect
from May 20, 2009. Moreover, the CCI has also begun acting on cases involving
cartelization. Curiously enough, the Monopolies and Restrictive Trade Practices
Commission (MRTPC) continues to be in existence and continues to receive cases as it is
yet to be dissolved. The government is yet to notify Section 66 135 of the Competition Act and
unless it is notified MRTPC would continue to function like before. In fact, the MRTPC has
been getting new cases even after the CCI has become operational.

133
See Brahm Dutt v. Union Of India , Writ Petition (civil) 490 of 2003, Jan. 20, 2005, available at
http://www.globalcompetitionforum.org/regions/asia/India/CASE%20NO490%20brahmdutt.pdf

134
Section 5, 6, sec 18 to 21, 26 to 33, 35 38-39, 41-48 and 66 are yet to be enforced.
135
Section 66 of the Competition Act deals with repealing and dissolution of the MRTPC Act, 1969.

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How the Competition Law beneficial to the Indian economy?
The opening up of national boundaries to trade in the era of globalization has seen a
quantum leap in international trade and has placed increasing competitive pressure on all
economies, whether developed, developing or transitional. It has forced most governments
to reassess their national competition policy and to institute necessary changes in light of the
developments in the world trade regime. Modern business operates in a world that is highly
economically integrated, but at the same time it is politically, culturally and legally diverse.
Notwithstanding the liberalization and the globalization, policies of states still continue to
be influenced by national sovereign concerns which are idiosyncratic to a particular state
reflecting significant social and political differences between states. 136 A fragmented
international regulatory environment has evolved in which each government has developed
its own unique approach to promote or maintain market competition by regulating anti-
competitive conduct that affects its territory, often without regard to the effect of that
regulation on other state. These domestic competition laws are not usually concerned with
activity beyond territorial borders unless it has significant domestic effects.137

In India, the importance of competition policy and related regulatory regimes has increased
greatly since 1991 when a massive wave of liberalization eliminated many controls on
investment, capital market, foreign trade and prices. Prior to 1991, the public interest was
sought to be served more through direct regulations that required the prior approval of
government for many commercial decisions. Post-1991, in most sectors of the economy, the
protection of public interest objectives rests with the laws governing competition and the
regulatory regimes that have been set up for natural monopolies and network industries
(where the production patterns of one producer are linked to that of others). Competitio n,
though seen as a means of attaining efficiency and fairness, might not have necessarily
promoted these objectives unless it has dealt with tradeoffs in its objectives and instruments.

136
Basant Rakesh and Sebastian Morris, Competition Policy in India: Issues fo r a Globalizing Economy , Economic
and Political Weekly, Vol.34, 2000.
137
Singh Ajit, Multilateral Competition Policy and Economic Development, available at
th
http://www.eco.unicamp.br/Neit/Download/Texto%20Ajit%20Competicao, last visited on 16 June 2008.

126
This concern led to a shift from a structural to a behavioral approach in drafting a new
competition regime. After all, in a fiercely competitive market, even a duopoly can produce
an outcome that a perfectly competitive market generates. Thus, it may not be necessary to
have a highly-competitive market structure provided appropriate rules of the game are
designed and enforced so that the market players behave in a competitive manner. This
approach may, however, become ineffective when competition in natural monopolies
cannot be ensured as such. Situations can also arise where there may be a number of players
in the market but the market itself is so segmented that individual players become
monopolists. The only way to get competitive outcomes in such markets is to put effective
regulation in place. Thus, regulation in different sectors becomes an integral component of
competition policy. Apart from this, due to the LPG, India was made to face a severe
competition from the world over. Thus the need for the introduction of domestic
competition law was felt to prevent international cartels from indulging in anti-competitive
practices in the country. One of the advantages of the having domestic competition law is
that apart from fostering the competition is that it also makes possible for the countries to
reach memorandum of understanding between themselves. At least one of the motivations
for introducing modern competition laws is to promote the growth of a competitive market.
There is evidence that competition in domestic markets, through both inter-firm rivalry and
entry of firms, results in higher levels and rates of growth in GDP per capita. Thus, the aim
of all regulatory authority whether it is Telecommunications, power, Oil and Gas, Ports,
Airports, Water etc, is to protect and promote the interest of consumers.

Need for a National Competition Policy for India

The reforms initiated since 1991 recognized the need for removing fetters on trade and
industry with the view to unleash the competitive energies. The Industrial Policy Statement
of 1991 emphasized the attainment of technological dynamism and international
competitiveness. It noted that the Indian industry could scarcely be competitive with the rest
of the world if it had to operate within an over regulated environment. To enhance
competition in the domestic markets and to generate/promote a culture of competition in
the country is part of this broader agenda of reforms. Further reforms would be facilitated by
means of a comprehensive overarching national competition policy. There are several
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policies and laws that can have significant bearing on competition. These are often not
competition-friendly, sometimes by design and often due to ignorance; such policies are
anachronistic in the present economic milieu and adversely affect the competitive forces and
the competition culture in the economy. This situation can be addressed only by adopting a
comprehensive National Competition Policy and harmonizing all other polices keeping in
view competition dimensions. The economic reforms undertaken by the Government have
been generally on sector by sector basis and the progress across sectors has not been
uniform. The sector by sector approach also carries the risk of inconsistency between
sectoral policies. A broad based, overarching National Competition Policy will promote
coherence in the reforms and establish uniform competition principles across different
sectors. This will ensure that the competition dimension is taken into account while
formulating various policies and consistency is maintained across all sectors. The national
Competition Policy will facilitate creation of a national market. The competition policy
recognizes the need for removing the barriers on trade of goods and services across all states.
It will help integrate the national market and create a uniform level playing field across the
country. The Raghavan Committee on competition policy also highlighted the need for a
competition policy in its report. In fact, it regarded it as the fourth cornerstone of
Government economic framework policies along with monetary, fiscal and trade policies.
The competition policy has been laid down in the Raghavan s Committee report. The
object of the competition policy is as follows; Competition policy in this context, thus becomes
instruments to achieve efficient allocation of resources, technical progress, consumer welfare and
regulations of concentration of economic power. Competition policy should thus have the positive
objective of planning consumer welfare.138

Competition Policy and Competition Law

Competition policy has been so widely embraced in recent years; there is probably a greater
global consensus on the desirability of competition and free market s today than at any time
in the history of human economic behavior. Competition policy is defined as those
government measures that directly affects the behavior of enterprises and the structures of

138
See Raghavan s Committee repor t Para 1.2-0
128
industry. The object of competition policy is to promote efficiency and maximize welfare.
Competition policy, has, as its central economic goal, the preservation and promotion of the
competitive process , a process which encourages efficiency in the production and allocation
of goods and services and over time, through its effects on innovation and adjustment to
technological change, a dynamic process of sustained economic growth. In conditions of
effective competition, rivals have equal opportunities to compete for business on the basis
and quality of their outputs, and resources deployment follows market success in making
consumers demand at the lowest possible cost. The objective of competition policy is to
promote efficiency and maximize welfare. In this context, the appropriate definition of
welfare is the sum of consumers surplus and producers surplus and also includes any taxes
collected by the government. It is well-known that in the presence of competition, welfare
maximization is synonymous with allocative efficiency. There are two elements of such a
policy. The first involves putting in place a set of polices that enhance competition in local
and national markets. These would include a liberalized trade policy, relaxed foreign
investment and ownership requirements and economic deregulation. The second is
legislation designed to prevent anti-competitive business practices and unnecessary
government intervention competition law. An effective competition policy promotes the
creation of a business environment which improves static and dynamic efficiencies and
leads to efficient resource allocation, and in which the abuse of market power is prevented
mainly through competition. Where this is not possible, it requires the creation of a suitable
regulatory framework for achieving efficiency. Competition law-policy in several countries
is based on a multiple set of values that are neither easily quantifiable nor reduced to a single
economic objective. These values may reflect the society s wishes, culture, history,
institutions and other factors that cannot nor should necessarily be ignored. It is worth to
note that, the scope and objectives of competition law-policy tends to vary across countries
and over time. For example, in countries such as Canada and New-Zealand, the primary
objective of the competition legislation is to maintain and encourage competition with
emphasis being placed on the promotion of economic efficiency. In the United Kingdom,
emphasis is placed on public interesta broader concept than that of competition alone. In
the United States, the enforcement of competition laws has increasingly focused on the

129
consumer welfare and economic efficiency. In India, the objectives of the Competition Act
are .. Keeping in view the economic development of the country. To prevent practices
having an adverse effect on competition, to promote and sustain competition in markets, to
protect the interest of the consumers and to ensure the freedom of the trade. To strengthen
the forces of competition in the market, both competition law and competition policy are
required. The two complement each other. Competition law prohibits and penalizes anti-
competitive practices by enterprises functioning in the market; that is, it addresses market
failure. The aim of competition policy is to create a framework of policies and regulations
that will facilitate competitive outcomes in the market. The competition policy and
competition law need to be distinguished. The former can be regarded as a genus of which
the latter is specie. Competition law provides necessary teeth to the authority concerned to
enforce and implement the competition policy. Competition policy thus has the po sitive
objective of promoting consumer welfare. It is now acknowledged that major distortions in
market could also be the result of state interventions that aim at protecting in efficient
domestic markets contributing sub-standard and high priced goods thereby depriving the
consumer of access to cheaper goods of better quality. Thus, state intervention appears
appropriate only when the free market left to its own dynamics, fails to render an efficient
result that would be in the large public interest. For example, when a merger occurs that is
anti-competitive, it is certainly easier to resolve without affecting the competition through
state intervention. Even at the global level greater co-ordination between state regulators to
combat anti-competitive occurrences is more feasible since policy choices are clear and
stakes are generally common. A well laid Competition policy thus helps in establishing a
predictable environment for investor and consumers of market s and in preventing artificial
barriers in the market. The legislative approach also helps in setting a conduct benchmark
for market players to avoid potential conflict with the polices of state. One more supporting
view for regulatory approach is that an ideal setting of market that serves public good at
large is generally the exception than the rule, as the profit motive is the nucleus of a free
market. Thus the regulatory objectives of competition policy are intended to serve as
follows;

a. Safety and stability of domestic markets

130
 b. Transparency of business practices
c. Prevention of abusive practices
d. Institutionalization of supervision over barriers to fair competition
e. Sustained benefits to consumers

Thus the powerful and effective competition law must stimulate the domestic production
and enable domestic business enterprises compete with foreign business enterprises in the
international markets. In this direction, the competition policy constitutes not only the
regulatory mechanism, but also the dispute settlement mechanism in the matters relating to
trade.

Consumer Interest and Public Interest

Consumer, in terms of the plain dictionary meaning, is one who consumes or one who uses
an article produced or a service. The term consumer would therefore include not only the
consumer of the final product, but also the consumer of raw material and intermediate
products. The term Consumer finds defined in Competition laws 139 and Consumer
protection laws140. While the definition of consumer may vary from one competition law
/ consumer protection law to another, the veneer is almost the same with the emphasis on
purchasing, consuming or using a good or service. The expression consumer interest
therefore, does not require any special delineation or treatment, as the expression is self
explanatory. While Public Interest requires a somewhat detailed treatment as it means
many things to many people. Public interest is an elusive abstraction meaning general
social welfare or regard for social good. In other words, it predicates the interest of the
general public in matters where regard for the social good is of the first moment. Thus
Public Interest is understood as public good, public welfare, general interest and interest of
the community over individual good etc. Often consumer interest and public interest are
considered synonymous. But they are not and need to be distinguished. Consumer is a
member of a broad class of people who purchase, use maintain and dispose of products and
services. Consumer interest is affected by pricing policies, financing practices, quality of

139
See Section 2(f) of Competition Act of 2002.
140
See Section 2(d) of the Cons umer Protection (Amendment) Ac t 2002.
131
goods and services and various trade practices. While public interest on the hand is
something, in which the public or the community at large has some pecuniary interest or
some interest by which their legal rights or liabilities are affected. The expression public
thus pertains to and concerns a multitude of people. However unbridled competition
policy could hurt public interest. The government legislative and executive polices may
generally cover the large public interest in a country, while competition policy may cover a
smaller group of consumers in the country. An effective competition policy and
competition law could bring in their wake easy and cheap imports thus making the
consumers happy.

It is desirable to keep in view that while competition policy is a desirable objective, it has
to be laced with certain safeguards for a limited period to protect the domestic industry , till
it is enabled to stand up to and face competition, particularly fro the overseas . In other
words, if competition policy were to be given an unbridle run, it may benefit the consumers
and serve consumer interest, but it is quite possible that some of the MNCs may oust or
exist the domestic industries because of the formers financial and marketing clout. The
apprehension is that many domestic industries, which have invested their capital and
labour and other resources, may not be able to stand up to competition with giants and
conglomerate , which , with their size and economies of scale, will have an advantage in
the competitive market. Public interest may get hurt and even prejudiced, if competition
policy is allowed an unruly run. Harmonization of public interest and consumer interest is
desirable but the contours of the harmony must be understood appreciated by the p olicy
makers.

Conflict between Public Interest and Consumer Interest

Despite the desirability of harmony between public interest and consumer interest, they
could be in conflict. Trade policy s which are predicated on public interest and competition
policy s which are predicated on consumer interest sometimes manifest the conflict. Trade
laws, which regulate trade policy s and competition laws which regulate competition policy
s, have a certain common core objective namely to maximize economic welfare by
improving the environment for more efficient resource allocation. They are regarded to
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have complementary effects as well as contradictory effects with each other. In a broad
sense, competition policy can be said to refer to policy s directly aimed at enhancing the
scope for competition between firms. It is concerned with both government interventions
that have implications on the competitive environment and private sector anti -competitive
practices. Competition policy is important because it fosters economic efficiency,
encourages firms to offer consumers good price /quality options and increases the
international competiveness of downstream users. It seeks to promote the efficient
allocation of resources by means of open and competitive markets. Trade p olicy, on the
other hand, primarily regulates competition amongst firms across national boundaries. It is
the complete framework of laws, regulates, international agreements and negotiating
stances adopted by governments to achieve legally binding market access for domestic
firms. A trade policy addresses two broad and interrelated issues. First, it seeks to create
trading opportunities to ensure freer trade by removing tariff and non-tariff barriers.
Second, it seeks to ensure fair trade by eliminating anti- competitive practices in
international trade. This second objective is more difficult to define and achieve. Fair trade
implies the creation of an equitable trading system where the conduct of trade is governed
by the competitive advantage of market players rather than the economic power and
influence of government.

A liberal trade policy is no longer restricted to the consideration of reduction of traditional

boarder restrictions such as tariff and import licensing but the consideration of the
reduction of non-tariff barriers including sanitary, phytosanitary measures and technical
regulations which limit cross-border access. It aims to address domestic and export
subsidies and other forms of assistance, which discriminate in favour of domestic
producers. Thus, competition policy and liberal trade policy seek to achieve the same
objective namely economic efficiency. However, competition policy seeks to achieve
economic efficiency by liberalizing domestic markets and by having laws that protect and
promote competition. A liberal trade policy seeks to achieve economic efficiency by
liberalizing markets by removing the barriers to trade at the border. Free trade and
competitive behavior are thus necessary conditions for efficiency.

133
 Interestingly there is always the primacy of Public Interest over Consume Interest. Public
interest needs to be measured in terms of outcomes that benefit the community as a whole
rather than in providing benefits for a smaller group like a limited number of consumers.
The trade off s between the interests of the different groups would have to be assessed and
made explicit in adjudicating between consumer interest and public interest. However the
consumer interest must generally have primacy, while applying competition p rinciples and
enforcing competition law, public interest should also be kept in view in the larger interest
of society. Competition policy s public interest objectives would provide the means to
deliver improved living standards for the whole community, if the policy is well
implemented. What is more important is that beyond facilitating and implementing
economic reforms through a competition policy, it is the responsibility of the government
to ensure that the benefits are shared by the society as a whole and not by a small set of
consumers. In a number of countries both developing and developed there appears to be
a shift away from use of competition laws to promote broad public interest objectives and
use of public interest based authorization procedures and exemptions in the competition
laws. Public interest objectives include, for example, the promotion of Employment,
Regional Development, Economic Stability, and Anti inflation polices, Social progress,
welfare, Poverty Alleviation, Security Interest etc. while competition policy objectives
across countries have a certain measure of commonalities like maintenance and
encouragement of process of competition , promotion of efficient use of resources and
protection of the freedom of economic action of various market participants, they also seek
to achieve a number of other objectives as well . Multiple objectives like, de-centralization
of economic decision making, promoting small and medium business, preventing abuses
of economic power, pluralism and other social-political goals form a wide spectrum. Thus
while there exist core objectives of competition policy, many countries tend to address
current concerns through refinement and adoption s of competition policy. Thus, since
competition seek s to ensure that market s remain open, free , flexible and adaptable,
competition authorities need to be more pro- actively involved in government policy
formulation.

134
Therefore the lesson to be noted is that competition law should protect competition, and
another lesson to be noted is that in formulating a policy, it is important to distinguish
between welfare reducing outcome and welfare enhancing outcome. This brings to the
fore, that, Consumer interest and public interest are not necessarily negating to each other.
Primacy of one over the other will depend upon the circumstances and situations of each
case. It is the responsibility of both the government and the competition agency to bring in
the harmony to ensure that the sectoral consumer interest and the general public interest
live side by side. Furthermore, Competition law policy apply to all sectors and firms in the
economy engaged in commercial economic activity, in practice various types of
exemptions and exceptions are granted for social, economic and political reasons. The
granting of exemptions and exceptions does not necessarily imply the weakening of
competition law enforcement. Indeed , it may well be that such instances are necessary for
furthering the objectives of competition law-policy, for example, virtually all competition
laws strictly prohibit horizontal price agreements between competitors, as they tend to
lessen competition. However, various forms of non-horizontal agreements do not
necessarily have the same effect and may be in the public interest if inter-firm cooperation
results in standardization of products, improved quality, and increased information so
consumers have better choices. It is worth observing that there generally tend to be fewer
exemptions in countries which have recently adopted competition law (mainly developing
and transition market economies) as compared with more industrialized nations. In India,
the Competition Act 2002, under section 54 specifies the Central Government s power to
exempt; the Central Government may, by notification, exempt from the application of this
Act, or any provision thereof, and for such period as it may specify in such notification-------

a) Any class of enterprise if such exemptions are necessary in the interest of security of
the State or public interest;
b) Any practice or agreement arising out of and in accordance with any obligation
assumed by India under any treaty , agreement or convention with any other country or
countries;
c) Any enterprise which performs a sovereign function on behalf of the Central
Government or a State Government;
135
Provided that in case an enterprise is engaged in any activity including the activity relatable
to the sovereign functions of the Government , the Central Government may grant
exemption only in respect of activity relatable to the sovereign functions. In addition,
section 3 sub-clause 5 indicates that; nothing contained in this section shall restrict-------

i) The right of any person to restrain any infringement of, or to impose reasonable
conditions , as may be necessary for protecting any of his rights which have been or
may be conferred upon him under ---
a) The Copy right Act ,1957 (14 of 1957);
b) The Patents Act , 1970 (39 of 1970) ;
c) The Trade and Merchandise Marks Act , 1958( 43 of 1958) or The Trade Marks Act ,
1999 (47 of 1999) ;
d) The Geographical Indication of Goods (Registration and Protection )Act , 1999 (48
of 1999);
e) The Designs Act , 2000 (16 of 2000);
f) The Semi conductor Integrated Circuits Layout Design Act , 2000 (37 of 2000);
ii) The right of any person to export goods from India to the extent to which the
agreement relates exclusively to the production , supply , distribution or control of
goods or provision of services for such export.

In essence, the approach being adopted by India is similar to that of various other
countries. However, the determination of exemptions rests with the Central Government.
The provisions relating to intellectual property rights appears to imply that the restrictions
from application of the competition law provisions may be removed if the conditions
imposed by firms tend to be unreasonable. However, this would presumably have to be
determined through judicial interpretation as to what constitutes to be reasonable or
unreasonable. The Competition Act itself does not define this. Also , at this point of time,
the interface between the competition Act and other laws and regulations , especially those
relating to specific sectors such as telecommunication , energy and other services have yet
to be clearly delineated.

136
Extra-territorial application and enforcement of Indian Competition Law
The modern competition law in the form of the Competition Act, 2002, The Central
Government has also established the Competition Commission of India to carry out the
objectives of the Act. The Monopolies & Restrictive Trade Practices Act, enacted in 1969,
dealt with some competition issues. As stated earlier the MRTP Act was too narrow in its
sweep to deal with competition issues especially in the era of liberalization and
globalization. The MRTP Commission had taken up complaints against anticompetitive
practices but was handicapped on account of certain limitations in the law. These
limitations have been adequately covered in the new law. If we look at the provisions of
Section 32 of the Competition Act141, 2002 we find that it makes provision with regard to
extraterritorial jurisdiction of Indian Competition Authority. The Proviso of Section 18142
states the Competition Commission may enter into any Memorandum143 or arrangement
with the prior approval of the Central Government, with any agency of any foreign country
in order to discharge its duty under the provisions of this Act. A treaty144 is different from
Understanding. Thus the mandate of the Competition Commission extends beyond the
boundaries of India. In case any agreement that has been entered outside India and is anti-
competitive in terms of sec. 3 of the Act or any party to such an agreement is outside India;
or any enterprise abusing the dominant position is outside India; or a combination has taken
place outside India; or any other matter or practice or action arising out of such agreement
or dominant position or combination is outside India, if such agreement, combination or
abuse of dominant position has or are likely to have an adverse effect on competition in the

141
The Commission has the power to inquire acts taking place outside but India but having an effect on
competition in India.
142
See; the Proviso of Section 18 of the Competition Act, 2002 which says.. Provided that the Commission
may, for the purpose of discharging its duties or performing its functions under this Act, enter into any
memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign
country.
143
A memorandum of understanding (MOU or MoU) is a document describing a bilateral or multilateral
agreement between parties. It expresses a convergence of will between the parties, indicating an intended
common line of action. It is often used in cases where parties either do not imply a legal commitment or in
situations where the parties cannot create a legally enforceable agreement. It is a more formal alternative to a
gentlemen's agreement. For clarification see; http://en.wikipedia.org/wiki/Memorandum_of_understanding
retrieved on 18-02-2010.
144
A treaty is an agreement under international law enter ed into by actors in international law, namely sovereign
states and international organizations. For further clarification see; http://en.wikipedia.org/wiki/Treaty ( last
accessed on 18-02-2010).
137
Indian market, the CCI shall have the power to inquire into such agreement or dominant
position or combination if have or are likely to have an appreciable adverse effect on
competition in the relevant market in India. Only mentioning Extra-territorial jurisdiction in
Indian Competition Law is not sufficient unless such extra-territorial jurisdiction is applied
and enforced by way of International co-operation and it forces Indian Competition
Authority to enter into Bilateral and Multilateral Agreement to seek the objectives laid
down in the Preamble of The Competition Act, 2002. The Competition Act, 2002 is a
growing baby and Bilateral, Multilateral Agreements, Treaties and Memorandum of
Understandings are blood and flesh for Indian Competition Commission. By looking at the
language of Section 32 of the Competition Act, 2002 it may be concluded that in India also
the Effects Doctrine145 may be applied as it has been recognized under Section 32. It would
be pertinent to say at this juncture that the Commission has not notified any special
regulation for the enforcement of Section 32 of the Act and very recently in May, 2009 has
notified the Competition Commission of India (General) Regulations 2009, 2 of 2009, so
the process for the enforcement of extraterritorial jurisdiction shall be according to this
regulation and the Code of Civil Procedure, 1908 wherever applicable.
The Competition Law of today and of Yesterday
There is a general impression and a perception that the Competiti on Act 2002 is either a
replica or revised version of the MRTP Act 1969 which was erroneous and misplaced. A
thorough analysis and comparison of the Competition Act and MRTP Act reveals that the
Competition Act 2002 is different from the MRTP Act in many ways, in terms of aims,
philosophy structure, duties approach and application process and powers of the Act. The
Competition Act 2002 has been recognized as a well conceived, modern law by the OECD
and WTO146 and both have advocated that the most pressing requirement is to quickly make
the Act fully operational. The Competition Law is different from the MRTP Act in that it
focuses on the firms structure, not size. The MRTP Act lists 14 offences. The Competition

145
The Effects Doctrine is applicable only when the action taken outside the Country has direct, substantial, and
reasonably foreseeable effects within the Country. Whether this Doctrine is against the spirit of International
Law? In International Law there is no standard to deter mine the direct, substantial, and reasonably foreseeable
effec ts within the Country. Ther efore, this Doctrine is not against the spirit of International Law.

146
Discussed in detail in chapter VI.
138
Law will recognize only four such offences. The MRTP Act's role was only advisory. The
proposed competition commission can initiate suo motu proceedings and levy penalties. The
Competition Law does not consider the firm's dominance per se detrimental to competition.
The MRTP Act frowned upon dominance and laid down an arithmetical test. The
Competition Law frowns only upon abuse of dominance. It seeks to regulate agreements
that control production, supply, markets, technical developments or investment in provision
of services. All such agreements are considered anti-competitive and penalty can be levied.
The recent experience with cement cartels is an example of price rigging under agreements
to share markets. Sources of production by way of geographical allocation of market will be
considered anti-competitive. The Competition Law prohibits agreements arrived at between
enterprises that directly result in bid rigging or collusive tendering. The Act defines bid
rigging as agreements between enterprises or persons engaged in identical or similar
manufacturing, trading or provision of service that has the effect of eliminating or reducing
competition for bids, or adversely affecting/manipulating bidding. Apart from these
guidelines, other restrictive trade practices will fall under the rule of reason test before the
Competition Commission of India (CCI).
Registration of agreements was mandatory under the MRTP Act, but the Competition Law
has no such requirement. A combination is sought to be regulated beyond a threshold limit.
The Government appointed the MRTP Commissions Chairman. A Collegium consisting of
the Chief Justice, the Finance and other Cabinet Ministers, the Cabinet Secretary and the
RBI Governor, will select the CCI chairman. An important difference lies in the fact that the
Competition Law leaves unfair trade practices to consumer forum and not to the CCI. The
MRTP Act had definition of unfair trade practices u/S 36A that lists out various modes and
possibilities of Unfair Trade Practice. The Competition Law will take care of cartelization
that imposes unjustified cost on the consumers. The Competition Law dispenses with the
requirement of pre-merger notifications. There will be a separate Bench of the CCI styled as
the Merger Commission to deal with mergers. This part of the Law requires disposal of the
case within 90 days. If there is no order, it will be presumed the merger has been approved.
There is also possibility of power sharing conflict with SEBI, another body dealing with
takeover bids of substantial shareholding of any listed company in India. The MRTP Act

139
was based on reformative theory, while the Competition Act 2002 is backed by reformative
cum deterrence theory. The cease and desist order is based on reformative philosophy
which in present time is increasingly found to be insufficient to persuade delinquent
enterprise to discontinue or not to re-engage in monopolistic, restrictive or unfair trade
behavior . Hence, a need to impose penalty on those found to be contravening the law has
been felt imperative by the law makers. Moreover , The Competition Law also seeks to
regulate predatory pricing though it is not clear how the Commission will determine pricing
below the cost. There is bound to be some overlap between the functions of the High Court
and the CCI when it comes to cases involving mergers, acquisitions and amalgamations.
The Competition Act also expects the CCI to promote competition through advocacy. This
is in line with the thinking of the OECD. The OECD had pointed out that in every member-
country where significant reform efforts have been undertaken, the competition agencies
have been active participants in the reform process. Advocacy can include persuasion
behind the scenes and publicity outside. This part of the Act appears to suggest that the CCI
should interact through the media to promote competition
Philosophy

The MRTP Act was based on the reformative theory. While the Competition Act is backed
by reformative cum deterrence theory. The cease and desist order is based on reformative
philosophy which in present time is increasingly found to be insufficient to persuade
delinquent enterprise to discontinue or not reengage in monopolistic , restrictive or unfair
trade behavior. Hence a need to impose penalty on those found to be contravening the law
has been felt imperative by the law makers. In the filed of Competition Law, potential
offenders conduct a cost benefit analysis in order to see whether it is worth while taking risk
of being caught and punished. Thus, an effective penalty is one which takes into account the
financial gains perpetrated by the offence as well as the probability of the detection.
Moreover, prudence suggests that fines must be high enough to deter, but not so high as to
bankrupt the violator. It is in this backdrop that the CCI, besides handing down a cease and
desist direction, has been empowered to impose penalties which are linked with the turnover

140
of the delinquent enterprises147. For recovery of a penalty, the person upon whom the
penalty has been imposed shall be deemed to be an assesses under the Income Tax Act
1961. Moreover, no deduction to the extent of penalty paid shall be allowed under the
Income Tax Act being a penalty towards violation of law. Further, under the MRTP Act,
only the restrictive trade covenant can be declared void148 . While Competition Act makes
the whole trade agreement void if it is found to be anti-competitive. Additionally, CCI is
armed with residuary power 149as a remedy to curb the anti-competitive agreement or abuse
of dominance, whereas such residuary power does not existed under the MRTP Act.

Scope and powers

The scope and ambit of several concepts under the Competition Act 2002 has been
amplified in as much as the term goods includes debentures, the scope of services has
been widened so as to include education, storage, treatment, advertise etc, in its scope. The
Act can now discipline the Government Department s performing non-sovereign functions
and the law can tame unreasonable restraints imposed by a holder of intellectual property.
The definitions of tie-in arrangement, exclusive supply or distribution agreement, refusal to
deal and resale price maintenance, have been made inclusive. Thus the coverage and scope
of Competition Act 2002 is wider that under the MRTP Act. As far as powers are concern,
in addition to the power to pass cease and desist Order and imposing of penalty on the
delinquent party, the CCI is empowered to direct division of an enterprise or the Group
enjoying dominant position and also to effect the division. Such power is with the Central
Government under the MRTP Act. The CCI is empowered to approve, approve with
modifications or block the Combination. Under the MRTP Act, after 1991, mergers are not
regulated. Even prior to 1991, before embarking upon expansion plans by undertakings
registered under the MRTP Act, there was a requirement and such powers were exercised
by the Central Government through executive action.

147
In case of cartel, for example , the Commission may impose upon participating enterprise, a penalty of up to
three times of its profit for each year of the continuance of such agreement or ten percent of its turnover for each
year of continuances of such agreement which is higher.
148
Section 37(1) (b) of the MRTP Act.
149
Section 27 (g) empowers the CCI to pass such other orders or issue such directions as it may deem fit.
141
Focus

The MRTP Act initially focused on size and emphasis later shifted exclusively on
behavior of undertaking i.e. prohibiting monopolistic, restrictive and unfair trade
practices. The Competition Act 2002 focuses primarily on effect i.e. it frowns upon if
there is appreciable adverse effect on competition as a result of anticompetitive agreement or
combination or exploitative conducts or exclusionary practices in case of dominance of
enterprise or group. The focus on effect is obviously logical and rational and in this sense
there is convergence with global trend.

Structure and Duties

The MRTP is a single tier sole agency mandated to prohibit anti-competitive trade
practices in the country while the Competition Act envisages two tier structure, i.e. CCI
and the Competition Appellate Tribunal (CAT). An appeal against an order passed by the
MRTP act lies in the Supreme Court while an order passed by the CCI can be appealed in
the CAT and direction of CAT can be appealed in the Supreme Court. The MRTP
Commission consists of a chairman who is or has been or is qualified to be judge of the
Supreme Court or of a High Court and is to be appointed by the Central Government. The
CCI is a body corporate and shall consist of Chairperson who has special knowledge of and
professional experience of not less than 15 years in the specified disciplines. Thus, the
Chairperson of the CCI need not be a judge. The Chairperson and members of the CCI are
to be appointed by the Central Government but on the recommendations of the selection
committee to be chaired by the Chief Justice of India or his nominee. Likewise, CAT shall
be headed by a chairperson who is or has been a Chief Justice of a High Court or a Judge of
the Supreme Court and the selection and appointment process shall be same as that of the
CCI. The budget and manpower are key to efficient performance of both MRTP
Commission and the CCI. While the MRTP Commission is wholly dependent on the
Government for its budget as well as for manpower but the CCI is comparatively
autonomous in terms of funding as the Competition Act of 2002 provides for establishment
of Competition Fund to defray its expenses to perform its functions. The CCI is more
autonomous in respect of manpower in as much as it has been empowered to appoint a
142
Secretary and such other officers and employees as it considers necessary to perform its
duties efficiently. As far as Duties are concern, MRTP Act which was still operating was
closed down completely and CCI has taken the charge after six years of the enactment of the
Act. The MRTP Commission duty was to investigate and enquire into monopolistic,
restrictive and unfair trade practices. It can pass cease and desist order and other directions
in case of restrictive trade practice and unfair trade practice but in case of monopolistic trade
practices, the MRTP Commission is required to report its findings to the Central
Government which is to pass such Orders as it may think fit to remedy or prevent any
mischief which results from such monopolistic trade practice. As far as Competition Act
2002 , the CCI is mandated to (i) prohibit anti-competitive agreements , (ii) to prohibit abuse
of dominance , (iii) regulate certain Combinations, (iv) render advice to Central /State
150
Governments and the Statutory Authorities and (v) undertake competition Advocacy .
Whereas as, the duties of the Competition Appellate Tribunal (CAT) are (i) to hear and
dispose of appeals against any order/ direction of the CCI, (ii) to hear appeal arising out of
an Order passed by the Tax Recovery Commissioner or Tax Recovery officer in terms of
chapter XVIID and the Second Schedule of the Income Tax Act 1961, (iii) to adjudicate on
claim for compensation that may arise from the (a) finding of the Commission , (b) its own
Orders and (c) arising out of violation of directions of the CCI or the CAT. Thus the duties
under the Competition Act 2002 is more intensive and extensive

As far as the powers of the Director General is concerned, under the MRTP Act, the
Director General does not have civil court powers while carrying out the investigation and it
is in this backdrop , the investigation and investigation report is titled as preliminary
investigation report . Thus, in collecting information/ evidence, the Director General is not
backed by Civil Court powers. under the Competition Act, the Director General is armed
with Civil Court powers and these are expected to ensure (i) that the findings are supported
by pungent evidence and (ii) that the CCI is expected to take much less time in concluding
an enquiry. In the event that there is likelihood of records being destroyed or tempered or
mutilated, the Director General has power to invoke Section 240 and 240 A of the
Companies Act. The Competition Act 2002 provides that Director General can go ahead
150
Details in Chapter V.
143
with the concurrence of the Chief Metropolitan Magistrate, Delhi and further records of
group, affiliate or associate enterprises can also be searched with the permission of the CCI
instead of the Central Government.

Other Assistance for CCI

The CCI has been empowered to engage experts and professionals, who have special
Knowledge of, and experience in, economics, law, business or such other disciplines related
to competition, as it deems necessary to assist in the discharge of its functions. It may now
call upon experts from specified disciplines or from any other fields as it may deem
necessary to assist the Commission in the conduct of any inquiry. Such explicit provisions
do not exist under the MRTP Act. Moreover, the CCI can make a reference to a Statutory
Authority including sector specific regulator and solicit its advice on an issue falling in its
domain and have the benefit of its expertise before taking a view on a matter before it. Such
explicit provisions do not find place in the MRTP Act. It is relevant to note that, the
MRTP Act is obsessed with deeming provisions as under section 33(1) of the Act, there are
14 deemed restrictive trade practices and every monopolistic trade practice is deemed to be
prejudicial to public interest except when it is expressly authorized by any law or when it is
permitted by the Central Government to be carried on. In view of deeming provisions, the
enquiry is instituted in the first instance and charged party is required to defend itself. The
resultant effect has been that in few enquires, the MRTP Commission could slap cease and
desist Orders as compared to total number of enquires instituted. The Competition Act
2002 leans on rule of reason which means it is case to case basis and in the first instance it
is for prosecutor to prove the adverse effect. There are only four categories of agreement
amongst competitors such as fixing price, limiting production, allocating markets of rigging
of bids when there is a presumption of adverse effect and rest of the restrictive covenants are
not presumed to be anti-competitive until proved so. Similarly, an act is abusive only when
the enterprise or the group is dominant. Further, the dominance is not merely linked with
the market share enjoyed by an enterprise but host of factors151 .

151
Section 19(4) of the Competition Act 2002 lists out various factors which Commission , while inquiring whether
an enterprise enjoys a dominant position or not , has to give due regard.
144
Reach

The Competition Act 2002 is applicable to all sectors of the economy including
Department of Government (Central as well as State) and there are no exclusion s or
exemptions unlike the MRTP Act which has limited jurisdiction in respect of banking and
Insurance sector. The arms of the MRTP Act do not extent to Department of the
Government. The CCI has been explicitly empowered to exercise jurisdiction in respect of
overseas acts having appreciable adverse effect on Competition in India. However, the
Competition Act 2002 does not take care of the unfair trade practices and fo r that
Government is considering establishing the National Consumer Protection Authority, so
that commercial buyers who are victims of unfair trade practices can have redress there
from. Further the MRTP Act didnt have the extra territorial jurisdiction. Which was the
great setback to the MRTP Act . MRTP ACT, 1969, so legislature could not foresee about
those acts taking place outside India but having an effect on competition in India, thus sec-
32 of Competition Act, 2002 has included this provision.

MRTP ACT, 1969 is silent about the sums realized by the way of penalties but
Competition Act sec-47 points out that this sum will be credited to the Consolidated
Fund of India.
A new chapter (Ch-vii) has been inculcated in CA which deals with advisory
jurisdiction of competition commission. Competition advocacy152 says that the
central government while formulating a policy on competition can seek
opinion of Competition commission but such opinion is not binding.
In order to avoid corruption or misappropriation of money of competition fund sec-
52 and sec-53 are included which directs the commission to maintain paper accounts,
other relevant records and to prepare an annual report giving a true and full account
of its activities during the previous year and copies of the same will be forwarded to
central government .

Though there has not been any change regarding the particulars of offence but
MRTP ACT, 1969 has laid stress on imprisonment as punishment rather than fine
152
See Sec:49 of the Act
145
 on the other hand Competition Act, 2002 had introduced huge fine as penalty and
had avoided imprisonment. E.g. Competition Act gives one year imprisonment
when there is contravention of orders of commission and failure to pay the penalty
(sec-42) and in all other offences accused has to pay fine.

Also the amount of fine in Competition Act is much more than in MRTP ACT,
1969. E.g. For the offences in relation to furnishing of information Competition Act
imposes fine of Rs. 10 lakhs (sec-45) whereas for the same offence MRTP ACT, 1969
imposes a fine of Rs. 500

Essentials of Competition Law

There are specifically three issues concerning all competition laws world over which form
the essentials of competition law. The essentials of competition law could be discussed as
follows:

(i) Anti competitive agreements that have the object or effect of preventing, restricting or
distorting competition is prohibited under section 3 of the Competition Act, 2002.
(ii) Abuse behavior by a monopolist or dominant firm with significant market power that
could be harmful to consumer welfare, is prohibited under Section 4 of the Competition
Act, 2002.
(iii)Mergers / Combinations that would reduce rivalry between firms in the market, again
with detrimental consequences for consumer welfare is regulated under section 5 and 6 of
the Competition Act 2002.
(iv) Competition advocacy, the mandate given to the Commission under the Act includes a
competition advocacy role. Section 49 of the Act gives us more inputs about the advocacy
role of the Commission, which shall be discussed by the researcher in chapter no. V.

146
The above mentioned objectives / elements of the Competition Act will be discussed by the
researcher in detail as follows.

147
Chapter IV

Part -A Competition Law and Anti- competitive Agreement

Part- B Competition Law and Abuse of Dominant Position

Part- C Competition Law and Combination and Regulation

148
 Part -A Competition Law and Anti- competitive Agreement

In this part the researcher intends to discuss the various dimensions of the Competition Act, 2002. As
the name itself suggests Anti-Competitive Agreements are those agreements that restricts competition.
The researcher intends to discuss the issues raised regarding the anti-competitive agreements in the wake
of continuous changing economic scenario with globalization and liberalization. Further, the
researcher makes an attempt to analysis amendments made to the Act to deal effectively with the Anti
Competitive Practices adopted by the Competitors in the Market.

Introduction

Anti Competitive agreements under the new Competition Act 2002 are in the nature of
restrictive Trade Practices under the erstwhile MRTP Act, 1969. Further, Sachar Committee
in 1978 recommended that the collective agreements relating to the trade practice of
collective discrimination, boycott, collective bidding, resale price maintenance and
residuary collective agreements in this regard should be prohibited153. Anti Competitive
agreements are prohibited under section 3(1) of the Competition Act and are held to be void
under section 3(2) of the Act. As the name itself suggests, anti competitive agreements are
those agreements that restricts competition. The Act defines an agreement to include any
arrangement, understanding or concerted action entered between parties. The agreement
need not be in writing or formal or intended to be enforceable in law 154. Thus, an informal
agreement to fix prices will hit by the provisions of Competition Law. The secti on 2(b) of
the Competition Act 2002 defines the word agreement as under:

Agreement includes any arrangement or understanding or action in concert____

i) Whether or not , such arrangement , understanding or action is formal or in writing

;or
ii) Whether or not, such arrangement, understanding or action is intended to be
enforceable by legal proceedings.

153 th
Dugar, S.M Commentary on MRTP Law, Competition Law and Consumer Protection Law. 4 Edition, Nagpur,
Wadhwa and Company; 2006.
154
Sec 2(b) of the Act
149
 This means in order to fall under this definition, a concerted action on the part of
enterprises or persons is a pre-requisite. It may also include casual, verbal, unwritten
arrangements. An agreement in respect of production, supply, distribution, storage,
acquisition or control of goods155 or provision of services , which causes or is likely to
cause to appreciable effect on competition within India is defined to be an Anti
Competitive Agreement. The Act prohibits such an agreement, such that it shall be a void
agreement156. It is noteworthy that the prohibition contained in section 3 is not absolute
and permits joint venture agreements in case certain parameters are met. The Section 3 of
the Act deals with the economic regulation of the market power intended to constrain an
enterprise from exercising it, to promote and sustain competition in markets. It is designed
to prevent, along with conspiracies and monopolies against consuming public, such unfair
practices against smaller competitors, and also such other practices, that unfairly
disadvantage competitors or injure consumers as tying arrangements, exclusive supply or
distribution agreements, refusal to deal. It therefore, provides for prohibition of entering
into agreement in respect of goods or services which causes or is likely to cause an
appreciable effect on competition within India and such agreement is void 157. Anti-
Competitive Agreements could be both horizontal and vertical. Sec 3(3) deals with
horizontal agreements. It also defines activities which could be taken as meaning to cause
or likely to cause an appreciable adverse effect. Section 3(4) deals with vertical
agreements. Exceptions are contained in sec 3(5).

Anti Competitive Agreement- Appreciable adverse effect

The adverse effect of the agreement on competition within India must be significant. It
refers not to a particular list of agreements, but to a particular economic consequence,
which may be produced by quite different sort of agreements in varying time and
circumstances. The word s adverse effect on competition embraces acts , contracts,
agreements or combinations which operate to the prejudice of the public interests by

155155
Goods have been defined to mean goods as defined under Sale of Goods Act and includes products
manufactured, processed or mined, debentures, stocks and shares after their allotment and goods imported in
India (Section 2(1).
156
Section 3(2) of the Act read with Section 10 of the Indian Contract Act, 1872.
157
Sec3(2)
150
 unduly restricting competition or unduly obstructing due course of trade. Public interest is
the first consideration. It does not necessarily mean only of the industry158. It is not the
nature of factum of trade restraint but its being prejudicial to the public interest which
sought to be targeted. The restraint of trade is tolerable, if it is reasonable as to the public
and the parties and limited to what is reasonably necessary. Otherwise, it becomes
appreciably adverse. All agreements having adverse effect on competition are not
forbidden. There can scarcely be any agreement or contract among businessmen that does
not directly or indirectly affect and possibly restrain commerce. In India, the basic test for
an agreement to be anti-competitive is whether or not it causes or is likely to cause an
appreciable adverse effect on competition within India. In order to determine the adverse
effects on competition, both the harmful and beneficial effects are to be considered.

Anti competitive Agreement Competition within India

The concept of trade is not limited to traditional exchange of goods and services across
the countries but it is a wider concept covering all cross boarder economic activity
including establishment. The Agreements are considered illegal only if they result in
unreasonable restrictions on Competition. The Adverse effect on competition in India
should be the result of anti competitive agreement. The entire concept of appreciable
adverse effect on competition is made subjective that may vary from case to case. It is
noteworthy, that the term appreciable adverse effect on competition, used in section 3(1)
has not been defined in the Act. However, the Act prescribes certain factors159 to be taken
into consideration by the Competition Commission while determining whether an
agreement has an appreciable adverse effect on competition under section 3. Thus in
assessing whether an agreement has an appreciable adverse effect on competition, both
harmful and beneficial effects are to be considered. Furthermore, for that matter visible
effect of the agreement or cartelization is to be seen. If it is in India, then the competition
in India is affected. It is irrespective of where the agreement or the understanding has been
arrived at. This is known as effects doctrine. The Supreme Court expounded the doctrine

158
See Haridas Exports vs. All India Float Glass Manufacturers Association [2002] 111 Comp .Cas .617 (SC) ]
159
See section 19 (3) of the Act.
151
 in Haridas Exports vs. All India Float Glass Manufacturers Association160 . even if an
agreement is executed outside India or the parties to this agreement are not in India if
any restrictive trade practice is a consequence of such an outside agreement carried out in
India , then the MRTP Commission has jurisdiction . Thus if the adverse effect in
competition comes to be felt in India, the Commission will have jurisdiction161.

The Ragavan Committee Report on Competition Law observed as follows, on extra territorial reach
of the law; -----Some anti competitive practices may have extra territorial origin or extra- territorial
impact. For instance, some mergers and acquisitions may have significant effects beyond the boarders
of the country in which merging parties are based or have production facilities. In such matters, the
concept of relevant market for competition law purposes will come into play.

The applicability of the domestic competition law to arrangements entered into outside a
country s borders so long as such conduct has significant effects in the country, is important
to the control of anti-competitive practices. However, it needs to be noted that extra-
territorial application of national laws entails some potential for conflicts between
jurisdictions. International co-operation and, in particular, agreements incorporating
principles of positive comity can be useful in minimizing the actual extent of such
conflicts between countries participating in such arrangements. A caveat which has
jurisdiction is that, if a country wants to have extra-territorial reach of its competition law,
it should allow other countries to have extra-territorial reach of their competition laws in its
soil.

The committee recommended the retention of the extra-territorial reach provision. If

power is not given to the Commission to have jurisdiction, then it will mean that persons
outside India can continue to indulge in such practices whose adverse effect is felt in India
with impunity. Therefore Supreme Court opined that, competition law is a mechanism to
counter cross border economic terrorism. Even though such agreement may enter into
outside the territorial jurisdiction of the Commission but it results in appreciably effecting
adverse competition within India, the Commission has the jurisdiction to pass appropriate

160
ibid
161
Jugaldas Damodar Mody Co. ,Inre [1983] 3 Comp.LJ 221 (MRTPC)
152
 orders. To that extent the Act has extra-territorial operation. The Act lists the following
factors to be taken into consideration for adjudicatory purposes to determine whether an
agreement or a practice has an appreciable adverse effect on competition namely;

a) Creation of barriers to the 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;
f) Promotion of technical, scientific and economic development by means of
production or distribution of goods or provision of services162.

Interestingly, the Anti Competitive Agreements could be both Horizontal and Vertical
Agreement. Sub Section (3) of section 3 sets out agreements which are presumed to have
appreciable adverse effect on Competition. Horizontal agreements are agreements between
two or more enterprises that are at the same stage of production chain and, in the same
market. The aspect that they are at the same market implies the fact that the parties to the
agreement must be both producers or retailers or wholesalers. The degree of cooperation
may vary from carrying out research and development to establishing a new company
through the means of a joint venture. These agreements can have pro-competitive benefit
like it may highly beneficial to the competitive structure of the market and also leads to the
synergy of operations by pooling of resources for the ultimate benefits of the consumers.
However there can be situation wherein the agreement is meant only for maximizing the
profits for the parties involved at the expenses of the consumers. The parties concerned can
fix prices or output, to share markets and if the cooperation enables the parties to maintain
gain or increase market power and thereby causes negative market effects with respect to
prices, output, innovation or the variety and quality of products. The operation of the
horizontal agreements can be varied ranging from cartels to parallelism. Usually, it is the
horizontal agreements that cause the greatest concern to competition authority. The use of
the expression s agreements, practices and decision ensures that undertakings may not

162
Section 19(3)
153
 resolve to collude and co-ordinate their anti-competitive behavior. It is noteworthy that
prohibition contained above section 3(1) and 3(2) is not absolute and it can be dis-applied
to a joint venture agreement, if such agreement increases efficiency in production, supply,
distribution, storage, acquisition or control of goods or provision of services. This clearly
means that, even if there is an appreciable adverse effect on competition, a joint venture
agreement shall not foul of the provisions of the Act if the parties to the joint venture are
able to show that there have been efficiency gains due to the joint venture. The burden of
proof to show that the joint venture agreement has resulted in efficiency gains is on the
joint venture partners. The Act prohibits Horizontal Agreements163, having appreciable
adverse effect on Competition. These are agreements, including Cartels and other;

a) Agreements to fix prices

b) Agreement to limit production, supply, markets, technical development investments
or provisions of service;
c) Agreement to geographically allocate markets or source of production or provision of
servicesby allocation of geographical areas, type of goods/services or number of
consumers;
d) Bid rigging and collusive bidding.

These above agreements or concerted acts of decisions of the trade association are
presumed to have appreciable adverse effect on competition, which is similar to the per se
rule. The Sec 3 (3) identifies above agreements or practices which are per se, and, therefore,
presumed to be, anti-competitive. The section presume s certain kinds of agreement
between enterprises, decisions by associations of enterprise, concerted practices of
association of enterprises have an appreciable adverse effect on competition. Such
agreements are per se void. There is no scope of investigation or enquiry. Section 3(1)
prohibits any agreement which causes or likely to cause an appreciable adverse effect on
competition. Yet certain kinds of agreement as set out in section 3(3) will so often prove so
harmful to competition and so rarely proved justified that the competition laws do not
require proof that an agreement of that kind is, in fact, anti- competitive in the particular

163
Section 3(3) (a) to (d)
154
 circumstances164 . The justification and standard for the creation of per se rules is stated in
165
Northern Pacific Railway Co. vs. United States , There are certain agreements or
practices which, because of their pernicious effect on competition and lack of any
redeeming virtue, are conclusively presumed to be unreasonable and therefore, illegal
without elaborate enquiry as to the precise harm they have caused or the business excuse
for their use. The per se rule reflect a long-standing judgment that every horizontal price
fixing arrangement among competitors poses some threat to the free market even if the
participants do not themselves have the power to control market prices.

The Rules for determining effect on Competition

Most laws make a distinction between the horizontal and vertical agreements. India bears
no difference to the general rule followed by legislation s world over and therefore
categorized such agreements, with horizontal agreements being viewed more seriously than
vertical ones. The agreements referred to in section 3(3) of the Competition Act are
horizontal agreements and those referred to in section 3(4) are vertical agreements. There
are two rules available to determine the effect on competition and they are as follows:

Rule of reason

Under the rule of reason, the effect on competition is found on the fact s of the case, the
market, and the existing competition, the actual or probable limiting of competition in the
relevant market, etc. what determines the issue is, on the facts , the actual or probable
restraint on competition. The rule of reason in examining the legality of restraints on trade.
The World Bank / OECD Glossary states that the rule of reason is [a] legal approach ----
where an attempt is made to evaluate the pro- competition features of the restrictive
business practice against its anti-competitive effects in order to decide whether or not the
practices should be prohibited166.

164
See State Oil Co vs. Khan 522 US 3 (1997), Northwest Wholesale Stationers I nc vs. Pacific Stationery and printing
Co.472US284]
165
356US1 (1958)
166
World Bank /OECD; Glossary of Industrial Organization Economics and Competition Law.
155
The Per Se Rule

Under the per se rule, the acts or practices specified by the Act as deemed or presumed to
have an appreciable adverse effect on competition are by themselves prohibited. It is
unnecessary to considered, under the per se rule, if they limit or restrict competition. This is
on the basis of established experience of their nature to produce anti-competitive effect.
Therefore, it is no longer necessary to prove the anti-competitive nature of per se violations.

The Rules under the Indian Competition Act

To ascertain the effect on competition of an agreement stated as being anti-competitive,

the first step is to determine the market where the competition is complained of as having
been adversely affected. The market that has to be taken into consideration for this purpose
is called the relevant market. Section 3 has not directly defined what an anti competitive
agreement is, but has only provided that an agreement which causes or is likely to cause an
appreciable effect on competition within India is prohibited and has declared that such an
agreement is void. Therefore it is necessary to ascertain in each case whether an agreement
does have that effect. The Indian competition Act has been ambivalent about the
application of these rules. The breaches under the section 3(3) by cartels or such groups ,
through anti-competitive agreements or practices that have the effects set out in section 3(3)
(a) to (d) have been declared as those that shall be presumed to have an appreciable adverse
effect on competition and it cannot be criticized. In the case of agreements set out in
section 3(4) (a) to (e), viz, tie in agreement, exclusive supply agreement, exclusive
distribution agreement, refusal to deal and resale price maintenance, they shall be in
contravention of section 3(1), if they cause or likely to cause an appreciable adverse effect
on competition in India, meaning thereby that they will be examined under the rule of
reason. The position regarding anti-competitive agreements that do not fall under section
3(3) or section 3(4), but fall under section 3(1) is not expressly stated and, therefore, it
should be understood that such cases will have to be considered only under the rule of
reason. What needs to be criticized is the reversal of the position regarding the treatment of
the agreements falling under section 3(4) (a) to (e) with regard to tie in arrangement,
exclusive supply agreement, exclusive distribution agreement, refusal to deal and resale
156
 price maintenance. Under the MRTP Act, after the amendment in 1984, of section 33(1) of
that Act, any agreement falling within one or more of the categories set out section 33(1)
(a) to (l) 167 was deemed for the purposes of the Act, to be an agreement relating to
restrictive trade practices.. the practices that may be covered by section 33(1) (a) to (l), as
a consequence, became per se restrictive trade practices. Those agreements stipulating the
per se restrictive practices were required to be registered under that Act and were the
starting point of investigation into restrictive practices. Even though these trade practice
were per se restrictive trade practices, section 38 of the MRTP Act provided certain
gateway through which any of such practices could be shown as not prejudicial to the
public interest. Tie- in arrangements, exclusive supply agreement, exclusive distribution
agreement, refusal to deal and resale price maintenance, covered by section 3(4) (a) to (e) of
the Competition Act, 2002 are covered by section 33(1) of the MRTP Act, under which
they are per se restrictive trade practices. Further, section 39 of the MRTP Act is a specific
provision declaring void the establishment of a minimum price to be charged on the resale

167
Section 33 (a)to (l) , speaks about the register able agreements relating to restrictive trade p ractices
m) Any agreements which restricts , or likely to restricts , by any methods the persons or classes of persons to
whom goods are sold or from whom goods are brought;
n) Any agreement requiring a purchaser of goods , as a condition of such purchaser , to purchaser some other
goods;
o) 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 persons;
p) Any agreement to purchase or sell goods or to tender for the sale or purchase of goods only at prices or on
terms or conditions agreed upon between the sellers or purchasers;
q) Any agreement to grant or allow concessions or benefits, including allowances , discount, rebates or credit
in connection with or by reason of, dealing;
r) Any agreement to sell goods,, on condition that the prices to be charged on re sale 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 ;
s) Any agreement to limit , restrict or withhold the output or supply of any goods or allocate any area or
market for the disposal of the goods;
t) Any agreement not to employ or restrict the employment of any method, machinery or process in the m
manufacture of goods;
u) Any agreement for the exclusion from any trade association of any person carrying on or intending to carry
on , in good faith the trade in relation to which the trade association is formed;
v) Any agreement to sell goods at such prices as would have the effect of eliminating competition or a
competitor;
w) any agreement not hereinbefore r eferred to in this section which the Central Government may specify for
the time being as being one relating to a restrictive trade practice within the meaning o f this sub-section
pursuant to any recommendation made by the Commission in this behalf;
x) Any agreement to enforce the carrying out of such agreement as is referred to in this sub -section.
157
 of the goods in India, thus regulating resale price maintenance. In a land mark decision of
the Supreme Court of India, in Tata Engineering and Locomotive Co. Ltd vs. Registered of
Restrictive Trade Practices Agreement168, where among other principles, the rule of reason was
illustrated. It was a case under the MRTP Act and the decision rested on the interpretation
of section 2(o)169 of that Act, defining restrictive trade practices. The question before the
Supreme Court of India , on appeal from the decision of the MRTP Commission (the
Commission) , was whether the agreement between Telco and its dealers allocating
territories to its dealers within which only the dealers could sell bus and truck chassis
referred to as the vehicles produced by the company, constitute a restrictive trade
practices. The Supreme Court held that when supply was shown as being far below
demand and when the dealers were not in a position to sell below permissible prices, the
charge of territorial restrictions restraining competition had no merit. The Court also stated
that the territorial restriction ensured equitable distribution of the commercial vehicles in
all parts of the country, where Telco had appointed dealers, and that if , without that
restriction, Telco dealers were free to sell anywhere, the commercial vehicles would find
their way to big cities and upcountry locations and small backward states would be
deprived of the supply. It decided that the territorial restriction imposed by Telco did not
fall under section 2(o). As stated earlier, with the amendment of section 33(1) of the MRTP
Act in 1984, after this judgment, allocation of an area for the disposal of goods became a
per se a restrictive trade practice, under section 33(1) (a) of that Act. A vertical restraint of
trade is not per se illegal unless it includes some agreement on price or price levels. Per se
rules are appropriate only for conduct that is manifestly anti-competitive. The distinction
between the two is that concerted action to set price is illegal per se and concerted action on
non- price restrictions is judged under the rule of reason. Vertical restraints are subjected
to rule of reason approach, which reflects the fact that such restraints are not always
harmful and may , actually , be beneficial in particular market structure circumstances.
Non-price vertical restraints are rarely opposed. Furthermore, in case of vertical agreement,
it is required to be proved, rather than presumed, that it causes or is likely to cause adverse

168
(1977) 47 Comp Cas 520 Supreme Cour t
169
Section 2(o) under, MRTP Act, defines Restrictive trade practices.
158
 effect on competition. The agreement being harmful is not enough. Its said adverse effect
on the market has to be judged. For that matter, an investigation has to be made, whether
the respondents possess significant market power. Market power means as the power to
force a purchaser to do something that he would not do in a competitive market. It is
ordinarily inferred from the sellers possession of predominate share of the market. In
general, the rule of reason is required for establishing that an agreement is illegal. It may
also be possible that the agreement, on investigation, turns out not to be anti - but pro
competitive. The rule of reason demands a proper inquiry whether the challenged
agreement is one that promotes, or the one that suppress the competition170. Every trade
agreement restraints bind persons or places or prices. The question is whether a restraint is
such as may suppress or even destroy competition. To determine that question, three
matters are to be considered;-

First, what facts are peculiar to the business to which the restraint is applied;
Secondly , what was the condition before and after the restraint is imposed;
Thirdly, what is the nature of the restraint and what is its actual or probable effect.

These factors are taken into account only for determining the actual or probable effect of
the trade practices clause of the agreement 171. The rule of reason does not support a defense
based on the assumption that competition itself is unreasonable.

Anti- Competitive Agreement and Cartelisation

Over the recent past, there has been an increased focus and grave concern on the
pernicious activities of cartels. Consumers all over the world desire the market to be
competitive driven in order that they get goods and services of their choice at reasonable
competitive prices. But their desire for competition based environment is likely to be
thwarted, if firms selling goods and rendering services collude, cartelize and in some cases
monopolize the market. The cartels are the most insidious form of anti-competitive
behavior, being difficult to detect and investigate due to the secretive nature. The

170
National Society of Professional Engineers vs. United states 435 US 679
171
Mahindra and Mahindra Ltd vs Union of India AIR 1959 SC 798)
159
 presumption is that horizontal agreements and cartel lead to unreasonable restrictions of
competition and may, therefore, be presumed to have an appreciable adverse effect on
competition. The Cartelisation is entering into an agreement or arrangement or
understanding between enterprises and instituting measures to control competition. The
Act defines cartel in section 2(c) of the Competition Act 2002, as follows;

Cartel includes an association of producers, sellers, distributors, traders or service providers who, by
agreement amongst themselves , limit, control or attempt to control the production, distribution, sale or
price of, or trade in goods or provision of services.

The definition is very wide and inclusive, covering both trade and competition. It is a
formal association of manufacturers or suppliers to maintain prices at high level, and
control production, prices, marketing arrangements etc., and thereby limiting competition
and imposing restraints on trade. It, thus, imposes unreasonable restraint on free trade and
distorts competition. This being an economic field, greater latitude has to be given to the
word cartel to include all sorts of combinations, which are anti-competitive172. The
Supreme Court defines it Cartel, therefore, is an association of producers who by
agreement among themselves attempt to control production, sale and price of the product
to obtain a monopoly in any particular industry or commodity. The emphasis is on
association of producers and the agreement between them. It may be any combination, the
object of which is to limit or control trade or production, distribution, sale or price of the
goods or services. Quoting identical rates or prices even when the cost of production
varied is a presumption in favour of a cartel173.

Objectives of the Cartels

The underlying purpose of a Cartel is to replace individual and completely free

competition by a collective organization intended to regulate and rationalize production
and to influence prices with a view to their stabilization. It shield participants from

172
Alkali Manufacturers Association of India vs.Sinochem International Chemicals Co.Ltd [1999]98 Comp
.cas.333(MRTPC)]
173
Bengal Tools Ltd, in re[1988] 63 Comp .Cas 468(MRTPC) and also see Excel Industry Ltd .In re [1988] 63 Comp
.Cas 531(MRTPC)]
160
 competition allowing them to charge higher prices and removing the pressure on them to
improve the products they sell or find more efficient ways in which to produce them. It is
the customers (companies and consumers) who foot the bill in terms of paying higher
prices for lower quality and narrower choice. This not only makes consumers and business
suffer but also adversely affects the competitiveness of the economy as a whole. Since the
very foundation of such agreements is to restrict freedom of trade, these are considered to
be unambiguously bad and the most egregious violation of competition law. The Supreme
Court of US in a case stated that cartels are the Supreme evils of antitrust 174 .The cartel
agreements may be open or secret and are directed towards price, production and m arket
control. The devices adopted are;

Market quota or division of territories;

Sale outlets of like products of member firms. the sale outlet distribute the entire
demand among member firms in agreed proportions;
Members that exceed agreed production rates are penalized and the funds are paid
into a common pool. From the pool bonuses are paid to those firms who had been
unable to produce their full quota.

The Cartels are of different types internationally. The first type of cartel are called hard core
cartels and are essentially made up of private producers who co operate to control prices or
allocate shares in world market. Another type of cartels are private export cartels wherein
non state related producers from one country take steps to fix prices or engage in market
allocation in export markets, but not in their domestic market. Essentially cartels are
agreements to limit output with the object of increasing prices and profits. This is usually
carried out in practice by means of price fixing, allocation of production or sharing
geographic markets or product markets. Cartels restrict competition, wherein resources are
misallocated and consumer welfare is reduced.

174
See Verizon Communication s Inc vs Law Offices of Curtis V , Trinko ,LLP ,540 U.S. 398,408 (2004)
161
Cartels under Indian Law

The Cartels are agreements between enterprises (including association of enterprises) not to
compete on price, products including goods and services or customers. The objective of a
cartel is to raise price above competitive levels, resulting in injury to customers and to the
economy. Therefore a cartel is said to exist when two or more enterprises enter into an
explicit or implicit agreement
1. to fix prices,
2. to limit production and supply,
3. to allocate market share or sales quotas, or
4. to engage in collusive bidding or bid rigging in one or more markets

After removing competition and creating the conditions of monopoly, the cartel of
businessmen prevents the market forces from operating smoothly and to benefit the
consumers. It tries to increase the profits by raising prices of the goods or by cutting their
output to create conditions of scarcity for raising prices thereof. The monopoly created by
the cartel is as such not conducive to progress. It retards growth and impedes the
improvement of the levels of living of the people. While the formation of the cartel amounts
to an anti-competitive trade practices, which is in disputably against the public interest, the
existence of a cartel is seldom proved by direct evidence. Generally no express agreement
showing its existence by setting up a chain of events leading to a common understanding or
plan. The underlying issue is what, at the minimum, constitutes that meeting of the minds
which must be directly or circumstantially established to prove that there is a restrictive
effect on competition. The practice of cartelization includes in the element of a conspiracy
to create a monopoly and thus to eliminate competition. While observing thus, the MRTPC
held in Alkali Manufacturers Association of India vs. America Natural Soda Ash
Corporation175 . In September 1996, American Natural Soda Corporation (ANSAC)
comprising of six American producers of soda ash attempted to ship a consignment of soda
ash at cartelize price in India. Based on the ANSAC membership agreement, the MRTP
Commission held it as a prima facie cartel and granted interim injunction in exercise of its

175
[1998] 92 Comp .Cas 206 (MRTPC)
162
powers in terms of section 14 of the MRTP Act176. However, the MRTP Commissions stay
order was set aside by the Supreme Court on two grounds: a cartel has not been defined
properly under the MRTP Act, and it also doesnt contain extra-territorial jurisdiction.
These two lacunae, among others, have been taken care of under the new competition law.
Historically, India has had a very poor record of enforcement against hard core cartels.
Cartels have been alleged in various sectors, including the cement 177, steel, tyre and trucking
industries178. However, although the CCIs predecessor ---- the Monopolies and Restrictive
Trade Practices Commission (MRTPC) has had the legal authority to take action against
cartels for nearly 30 to 31 years, it has exercised that authority in relatively few instances. In
addition, the MRTPC has made little attempt to investigate in India international cartels
that have been uncovered elsewhere and which are likely to have had an impact on the
Indian consumer; e.g. the Vitamins cartel, exposed as a global conspiracy in the 1990s by
the US and EU authorities, and which has resulted in follow on private damages actions in
the UK courts, was not taken forward by the MRTPC, despite a complaint by an Indian
pressure group. One of the main reasons if not the main reason for the MRTPC s reluctance
to engage in cartel busting to date is that it does not enjoy the power to impose effective
sanctions to back-up its decisions in addition to the fact that the MRTPC can impose cease
and desist Orders on the companies under investigation. Accordingly, a business can freely
indulge in cartel activity until it is summoned before the MRTPC; it is not penalized for
behavior up to that point, regardless of how long the cartel has been in existence. The
current Indian law does not, therefore, act as an effective deterrent ---particularly given the
prospects of the MRTPC taking action at all are relatively low. However, it has change with
the coming into force of the Competition Act which substantially enhances the CCI s
powers in respect of cartel s. in contrast to the MRTPA , the new legislation clearly defines
cartels ; it also sets out the presumption that such agreements cause appreciable adverse
effects on competition, shifting the burden of proof onto the defendant. Consistent with the
176
Section 14 of the MRTP Act speaks about, the Orders where party concerned does not carry on business in
India.
177
Trucking cartel case, of 1984 involved members of the Bharatpur truck Operators Union, Faridabad, which
collude to fix freight rates individually.
178
The Cement cartel case, involving 40 manufactures of cement, initiated in 1990 and fixing of prices of cement
through the cement Manufacturers Association (CMA) was proved in 2007 before the MRTPC. However, the
MRTPC could only pass a cease and desist order.
163
position in many other mature competition regimes, the Competition Act also grants the
CCI extra-territorial jurisdiction to cover agreements which have been entered into outside
India if the agreement has an effect on the Indian markets (s). In addition, the CCI has been
given extensive powers (in -line with competition authorities elsewhere) with which to
punish cartel activity. It can still issue cease and desist Orders. However, much more
importantly, the CCI also has the power to impose severe fines-under the Competition Act ,
fines can amount to a maximum of 10 per cent of average turnover for the last three years
for each party to an anti-competitive agreement. Moreover, in respect of cartels, fines can
amount to whichever is the higher of here times the profits or 10 percent of turnover for
each year the practice continued. Since cartels are regarded as the most destructive form of
violation of competition law, each country treats it with strict or per se liability. However,
the scope of liability differs in each jurisdiction and India following the Global trend.
Finally, perhaps most significantly, the new Indian competition regime includes a leniency
programme which sets out in detail the conditions required to be satisfied for cartel
members seeking full or partial immunity from sanctions. Leniency programmes are now
globally recognized as a pragmatic and effective tools for cartel detection. Thus detection
and punishment of cartels will be an enforcement priority for the CCI. Although provisions
for a reduction in penalties s has been made in the Competition Act , the detail of how the
regime will operate is set out in the CCI implementing regulation s (currently in draft form )
. The power and function of the CCI with regard to cartels detection and investigation shall
be discussed by the researcher in detail in the Chapter V. It needs to be noted that hardcore
cartels cannot be successfully investigated and prosecuted without exchange of confidential
information. Since Cartels have serious adverse effects on developing countries economies,
the competition laws of the developing and developed countries need to be amended. In
other words, the laws need to be amended in favour of exchange of confidential
information. Thus the approaches to deal with cartel s have evolved over time and
particularly in the last decade. The law should not be static but be dynamic in line with the
changing needs of the society. Some of the Latin American countries have used some or
most of the tools to crake cartels successfully 179. The developing countries need to take a

179
The investigating authorities uses various methods to crack down cartels like, Framing and implementing
164
lesson from them and use the investigation tools including leniency /amnesty schemes and
fight cartels.

Anti competitive Agreement -----Agreement s fixing prices;

The Agreement which directly or indirectly determines the purchase or sale price is
prohibited under section 3(3) (a). Price fixing is a per se prohibition. It may be direct or
indirect. It may relate to prices or pricing methods. It is used in the sense that it is
administered price which does not vary with market conditions, as competitive prices do.
It is fixed or administered by a cartel or a concert or a trade association. Thus, when the
prices are controlled by formulae, agreements, or price leadership, the parties are assured of
stabilization from the onslaught of price-cutting and open price warfare. When certain
traders combine together or have a concert to fix the prices of a commodity they deal in or
to raise prices of the commodity together, i.e., at or about the same time, they voluntarily as
a group give up the competition between each other in the matter of pricing. The
competition is abjured and in its place a price mechanism determined by the combi nation or
concert is brought into operation. The price is no longer fixed by free forces of supply and
demand but by the fait of combination or a concert. The consumers reaction are completely
ignored or not taken into account. Any agreement to fix or maintain prices violates,
irrespective of whether the prices in themselves are reasonable or unreasonable. Therefore,
the combination to fix prices is anti-competitive in effect. Price fixing conspiracy may
consist of any mutual agreement, or arrangement or understanding between two or more
competitors to sell at a uniform price, or to raise, lower, or stabilize price or discounts. It
may also mean that the competitors follow each others price list, conform another price
polices , discuss prices, obtain information about each others prices, exchange information
about prices; all these done because of an agreement or arrangement or understanding.

Leniency /Amnesty Schemes, Applying Injunctions, Imposing effective deterrent puni shment, Seeking and
organizing International Cooperation, Monitoring Trade and Manufacturing Associations Information Programmes.
165
Anti- Competitive Agreement---Agreement to limit and control production and
investment

Agreement for price -fixing may be extended to agreements on outputs and market shares
assigned to each of the participants. Without price fixing, there could be agreement for
controlling output or for market sharing, with the same anti-competitive effect. Output is to
be restricted to below optimum consumer welfare levels and the price correspondingly
maintained above competition level. Both types of agreements are prohibited, vide section
3(3) (b) and section 3(3) (c). The Section 3(3) (b) prohibits agreements which limit or
control production, supply, markets, technical development, investment or provision of
services. The object of the agreement for controlling production and investment is to raise
prices, restricting the supply of the product very much short of demand. In order to
constitute an agreement an agreement falling within anti-competitive provision, not only
should there be an agreement for sale or purchase between suppliers or between purchasers,
but also imposition of certain restriction which should have the effect of limiting
production, supply, markets, technical development etc. even a boycott, if it is effected
through collective agreement between suppliers or between purchasers, will be covered.
Agreement for limiting or controlling production is Anti- competitive. It is so for two
reasons. By controlling production, the supply is kept low as compared to demand and
thereby creating artificial scarcity. Secondly, the agreement in effect restricts competition
between the parties themselves so that the efficient ones among them could not go ahead
with further production and elbow out the less efficient. The central idea of competition is
that the efficient enterprises which is able to supply goods at prices acceptable to consumers
will increase while the less efficient will reduce their production and if necessary will go out
of it. Any agreement interfering with this process in anti-competitive, as in such a situation
less efficient enterprises are propped up by the artificial support to continue in production
even though the forces of demand and market price do not justify the continuance.

Anti Competitive Agreement--- Agreement on market allocation and sharing

Agreements are presumed to be anti-competitive under section 3 (3) (c), which shares the
market or source of production or provision of services by way of allocation of
166
 Geographical area of market, or
Type of goods or service , or
number of customers in the market, or
any other similar way

An agreement which results in a territorial division of the market or a division of the

product market among them is anti-competitive. Section 3(1) is infringed if two enterprises
or association of enterprises agree to keep out of each others territories or establish quotas.
Sharing the market involves the assignment to particular enterprises of particular customers
or markets for the products or services in question. It may also be done on the basis of
quantity allocations rather than on territories or customers. Such arrangements have effect
of eliminating competition in respect of each others customers or markets. It is restrictive
to particular line of product or particular type of product.

Anti-Competitive Agreement--- Bid rigging and collusive bidding

Agreements which directly or indirectly result in bid rigging or collective bidding are
presumed to be anti-competitive. The expression bid rigging has been defined in the
explanation to mean any agreement, between enterprises or persons engaged in identical or
similar production or trading of goods or provision of services, which has the effect of
eliminating or reducing competition for bids or adversely affecting or manipulating the
process of bidding. Agreement to conspire to eliminate competition in obtaining contracts
is illegal. Bid-Rigging is an agreement which has the adverse effect on competition.
Collusive is a secret agreement for illegal purposes or a conspiracy180. It is a deceitful
agreement for some evil purposes. Bid rigging and collusive bidding are fraudulent, aimed
at manipulating the market and competition. As stated earlier, beside horizontal agreement
there can be anti-competitive agreement between producers and suppliers or between
producers and distributors, and such agreements are termed as vertical agreements. The
prohibition as provided in section 3(1) also applies to vertical agreements between non-
competing enterprises operating at the different levels. The concept refers to certain types of

180
Subhas Chandra vs. Ganga Prasad AIR 1967 SC 878.
167
 business practices that relate to the resale of products by manufactures or suppliers. They
are embodied in agreements between operators on a line of business situated at different
stages of the value-added chain. Such agreement s are also anti-competitive, if they cause
or are likely to cause an appreciable adverse effect on competition. The Act frowns upon
vertical agreements181, which are;

1. Tie in arrangement;
2. Exclusive supply agreement;
3. Exclusive distributive agreement;
4. Refusal to deal;
5. Resale price maintenance182;

These agreement s are considered illegal only if they result in affecting competition
adversely to an appreciable degree. In other words, the restraint is to be evaluated under the
Rule of reason. The vertical agreements are between non-competing undertakings
operating at different levels and, therefore not prima facie anti -competitive as the
horizontal agreements which are made between the competitors. These are mainly
distribution agreements between a manufacturer (or producer) and the distributor (retailer),
which may require distributor to observe some restraints, such as:

To purchase a second product distinct from the main product which is a condition of
purchase ( tie-in agreement)

181
Section 3(4) (a) to (c)
182
Section 3(4) defines Vertical Agreement, Expla nation for the purpose of this sub section__
a) tie in arrangement includes any agreement r equiring a purchaser of goods, as a condition of such
purchaser, to purchase some other goods.
b) exclusive supply agreement includes any agreement r estricting 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 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 includes any agreement which restricts ,or likely to restrict, by any method the persons
or classes of persons to whom goods are sold or from whom goods are brought;
e) Resale price maintenance 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.
168
 To purchase a specific brand of product exclusively from manufacturer and not from
others( exclusive supply agreement):
To sell product in a territory exclusively assigned to distributor ( exclusive
distribution agreement):
To resell the product at the fixed minimum price (resale price maintenance).

When a supplier deals in technically complex products, he may desire that consumers
purchasing them receive a minimum pre-sale service and are fully informed about the
products qualities and capabilities and, therefore, the retailers are specialized. If the
products are luxury and branded items, he may restrict supply to retailers selling from a
high quality location to ensure the aura of exclusivity and prestige of the product in the
mind of the consumers. He may, therefore, restrict supply to retailers who agree to comply
with the obligation s as to service and sales promotion. Such agreements contribute to the
improvement of production and distribution and promote technical and economic progress,
which is reflected in the reduction in prices or the constant supply to the consumers. Such
agreements, however, are considered anti-competitive if one or more of the firms have
market power. In such a situation, the agreement, in any case, likely to attract provisions of
the law relating to abuse of dominance. Further, if the restraints are such s enhances
competition, they are not, and if they foreclose the market, reduce rivalry and facilitates
collusion they are, void. To determine, the rule of reason is applied. Thus, vertical
agreements have both negative and positive effect s. If the negative effect outweighs the
positive, the agreement is declared void. The negative effects are----

Foreclosure of the other suppliers or other buyers by raising barriers to entry;

Reduction of inter-brand competition between companies operating on market,
including facilitation of collusion amongst suppliers or buyers.
Reduction of intra-brand competition between distributors of the same brand.

The main objection to the exclusive contracts is their probable adverse effect on the market
of foreclosing it to other competitors. That objection does not hold good if the agreements
could be justified by showing that the economic advantages to the consumers outweighs
the anti-competitive effects , for example , benefit of the security of supply, providing
169
 information about the use of highly technical products, providing additional services etc.
The market impact of vertical restrictions is complex because of their potential for
simultaneous reduction of intra brand competition (rivalry between sellers of the same
brand) and stimulation of intra brand competition (rivalry with the sellers of other
brands). The vertical agreements are treated more leniently than horizontal. They are not
per se void; the rule of reason applies, to be judged on case to case basis. The Researcher
attempts to discuss the Vertical agreements mentioned above in detail;

(a) Tie in agreements: it is a form of vertical arrangement, in which there is a covenant

between enterprises that are at different stages of the production chain, say, among a
distributor /supplier and a buyer/purchaser. Simply stated, it includes any agreement
required a purchaser of goods (tying good), as a condition of such purchase, to purchase
some other goods (tied good). They have been defined in Explanation (a) to sub-section (4)
of section 3 of the Competition Act, 2002. The effect of the arrangement is that a
manufacturer or supplier of goods makes the buyer of goods to buy some goods or services,
which he does not want, along with the goods he wants for use or for resale.

They are to be found where the tying product is either more popular or is in short supply
and the tied product is slow moving and less in demand. Thus, by such an arrangement
the manufacturer or supplier can increase and expand the share of the tied product in the
market. Such practice may also be restored to when a manufacturer or supplier of a
popular and established product introduces a new product in the market and wants its sale
to be pushed up and in which case he ties up the new product with the established
product. Therefore, as a consequence if the new product is not bought in a specified
quantity, the buyer s order for the popular product is likely to be refused 183. Further , while
deciding on the most probable outcome of tying agreements, Supreme Court stated in the
case of Director-General of Investigation and Registration vs Hindustan Lever Limited 184 that:

183 th
Dugar .S.M Commentary on MRTP Law, Competition Law and Consumer Protection Law, 4 Edition, Wadhwa
and Company; 2006.
184
MANU /MR / 0005/1987 ; (19890 66 Company Cases 51
170
 Tying agreements serve hardly any purpose beyond the suppression of competition . By
conditioning his sale of one commodity on the purchase of another, a seller coerces the
abdication of buyers independent judgment as to the tied products merits and insulates it
from the competitive stresses of the open market. Intrinsic superiority of the tied product, if
there be any, would convince freely choosing buyers to select it over others, anyway. The eff ect
of the tying device on competition sellers attempting to rival the tied product is indeed
drastic as it enables the sellers adopting the tying arrangement to enjoy market control while
other existing and potential sellers are foreclosed from offering their goods to a free competitive
judgment through being effectively excluded from fair market dealing.

The reasonableness rule stipulates that the tie ups should be treated with caution, as it
might be the case that such agreements were enhancing competition rather than curbing it.
Sometimes , it may be the case that some tying clause are for the betterment of the quality
of the good produced or services rendered and thus , were promoting healthy competition
and to the benefit of the consumers. Accordingly the Supreme Court of India in Mahindra
and Mahindra vs Union of India185, the Commission categorically stated that every
restraint in commercial activities is not to be regarded as impermissible under the law and
has to be tested on the touchstone of reasonableness. Thus, this case adopted the rule of
reason as evolved and applied by many foreign jurisdictions.

(b) Exclusive Supply and Distribution Agreements: Exclusive supply arrangements

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. Whereas distribution agreements 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. They have been defined under the Explanation (b) and (c) to sub-
section (4) of section 3 of the Competition Act 2002. Such agreements originate
principally to cater to the manufacturer s need to promote his branded product at all stages
of distribution, down to the consumer. As a result of which, the competitors are prevented
access to the market and the dealers are denied freedom to handle competing products. In

185
MANU /SC/0391 /1979, AIR 1979 SC 798 .Refer supra note 29.
171
 this process, the consumer is also restricted in his choice among the number of competing
products. In landmark verdict of Telco vs RRTA, the Supreme Court observed that
exclusive dealership in this case did not impede competition rather promoted it because
they led to specialization and improvement in after sales services, and by specialization in
each make of vehicle and providing the best possible service, the competition between the
various makes was enhanced. Wherein the exclusive arrangement was found to be
essential for the survival of the respondent firm and competition, it was held that there is
no affect on competition and therefore, it is not violative of law. When dealers are required
not to deal directly or indirectly in sale of similar goods, it is then held to be restrictive in
case of exclusive dealing. In Tata Engineering and Locomotive Co. vs Registrar of
restrictive Trade Practices186, the Supreme Court did not find the distribution of areas
between the companys distributors as being restrictive. To sum it up, whenever there is a
categorical condition in the agreement, that the purchaser shall not buy from any other
party the specified products for sale or the terms of the agreement are shown to be on a
principal to principal basis, then they are held to be restrictive and reducing competition
in the market.

(C) Refusal to deal: The section 3 sub-section (4) of the Competition Act defines it as
including any agreement which restricts or likely to restrict by any method the persons or
classes of persons top whom goods are sold or from whom goods are bought. Mere non-
supply of goods to a dealer does not amount to refusal to deal, unless it is the outcome of
non-adherence to some restrictive covenant, e.g. tie-ups sales, area restriction etc. what is
required to b seen is the effect of such practice on competition and whether it results in or is
likely to result in foreclosing market s to competitors. The US Supreme Court in case of
187
Aspen Skiing Co vs Aspen Highlands Skiing Corp , that refusal to deal can be abused
when access is denied after having been granted in the past. Further, a player in a dominant
position can impose restriction s or a player who is the provider of the technological

186
SC/ 0254 /1977 ;(1977 ) 2 SCC 55
187
. 472 US 585, 602 (1985) Referred IN Dhall , Vinod , Competition Law Today : Concepts , Issues and the Law in
st
Practices 1 Edition , New-Delhi, Oxford University Press 2007
172
development in the service concerned. In RRTA vs Bata India Ltd188 engaged in the
manufacturer of leather and rubber canvas footwear, entered into agreements with small
scale manufactures for purchase of footwear to be sold by it under its own brand. The
agreements prohibited these manufactures from purchasing raw material and components
from parties other than those approved by Bata. It also required them to use the moulds
sold/supplied by Bata exclusively for manufacturing for Bata s requirement. The
Commission held that these conditions imposed by Bata is restrictive trade practices and
prejudicial to public interest.

(d) Resale price maintenance: Explanation (e) to Sub section 94) of the Section 3 of the
Act defines 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.
Resale price maintained is in some countries treated under the per se rule, e.g. in the US
because it could be the sign of a cartel189. Further, Section 3(5) of the Competition Act
explicitly exempts the applicability of section 3 to -

Agreements containing reasonable conditions to protect any of his rights; and

Rights of a person to restrain any infringement of his rights.

Prohibition as provided in section 3 does not apply to the agreements relating to the
following statutory rights;

i. The Copyright Act , 1957;

ii. The Patents Act 1970;
iii. The Trade Marks Act, 1999;
iv. The Geographical Indications of Goods ( Registration and Protection ) Act 1999
v. The Design Act ,2000;
vi. The Semi Conductor Integrated Circuits Layout Design Act ,2000

188
RTP Enquiry No. 3/ 1974.
189
Ramappa .T. Competition Law in India: Policy, Issues and Developments , New-Delhi, Oxford University Press;
2006
173
 All the rights are statutorily available and are popularly known as intellectual property
rights. These rights are monopolistic. The owner has all the rights to exploit them and also
the right to prevent others from doing so. There is no violation of the Competition law if
the owner of the articles ( patented or otherwise) seeks to dispose them directly to the
consumer or fixes the price by which his agents transfer the title from him directly to such
consumer190. The law relating to intellectual property gives the right holder to exclude
others from the use of his monopoly right, absolutely or on terms. The right has to be
confined within the relevant law. The existence of intellectual property creates markets,
because they provide the object of trade. Earlier, the MRTP Act excluded any IPR issues,
assuming that these are natural monopolies granted by law, and hence not challengeable.
The Raghavan Committee Report on Competition Law in reference to Intellectual
Property Rights observes as follows;

All forms of intellectual property have the potential to raise competition policy/ law problems.
Intellectual property provides exclusive rights to the holders to perform a productive or commercial
activity, but this does not include the right to exert restrictive or monopoly power in a market or
society. Undoubtedly, it is desirable that in the interest of human creativity, which needs to be
encouraged and rewarded, intellectual property needs to be provided .this right enables the holder
(creator) to prevent others from using his / her inventions, designs or other creations. But at the same
time, there is need to curb and prevent anti-competition behavior that may surface in the exercise of the
intellectual property191.

There is; in some cases, a dichotomy between intellectual property rights and competition policy/ law.
The former endangers competition while the latter endangers intellectual rights. There is a need to
appreciate the distinction between the existence of a right and its exercise. During the exercise of a
right, if any anti-competitive trade practices or conduct is visible to the detriment of the consumer
interest or public interest, it ought to be assailed under the competition policy/law

Thus, the section 3(5), therefore exempts agreements relating to intellectual property rights
under the laws as specified therein from the applicability of section 3(1) and (2). Only

190
United States vs. General Electrical Company et al 272 US 476
191
see Raghavan Committee Report on Competition Law , Paragraphs 5.1.7 and 5 .1.8.
174
 reasonable and legal conditions under those laws are not within the prohibition. The
agreement concerning intellectual property rights are subjected to competition Law to the
extent restrains provided or conditions imposed are not necessary for the protection of
those rights. The obligations in a license for the exploitation of an intellectual property right
are not restrictions within the meaning of competition Act192. If the agreement confers
right to exploit the patented invention on payment of royalties on the conditions which do
not go beyond the scope of the patent, the question of applicability of the prohibition under
the competition Act does not arise; but arises if the grant is accompanied by the terms
which go beyond. For example, a copyright may no more be used than a patent to deter
competition between rivals in the exfoliation of their licenses. To determine the scope, it is
necessary to define the specific subject matter of the right and its exhaustion. Any term
which is outside the subject matter and the exhaustion of the right, is subject to competition
rule. The following concepts have, therefore, to be kept in view if the demands of the
competition law are to be reconciled with the protection of intellectual property rights;

- There is dichotomy between the existence of intellectual property rights and their
exercise; the competition law is concerned with the latter;
- The protection of the specific subject matter of the right is justified even if it adversely
affects the competition;
- Once the right as specified in the subject matter is exhausted, i.e., when the holder of
the right has consented to selling the protected product, the agreement will lose
protection and be subject to competition law.

Agreement s those are not anti-competitive: Exports of Goods

The agreement would not be anti-competitive if it relates exclusively to the

production, supply, distribution or control of goods or provision of services for export from
India193. The activity of export is exempted, because it does not affect the domestic market.
For example, price fixing with respect to goods and services sold domestically is subject to
control under the competition law, but price fixing with respect to export is permitted. An

192
See Ravenseft Properties Ltd s Application (1977) 1 All ER 47.
193
See section 3(5) (g) of the competition Act of 2002.
175
 agreement is anti-competitive if it has adverse effect on competition within India194. The
focus is on domestic effects of anti-competitive conduct. The reach of the Indian law is not
limited to conduct and transaction that occur within the boundaries of India but also to
those which affect competition within India regardless where such conduct or transaction
occurs or the nationality of the persons involved. The purpose of the Indian law is to
protect consumers, competition and commerce in India. It does not extend to protect the
foreign markets from anti-competitive effect and regulate the competitive competitions of
the other countries. If the Indian market is affected whether it is the export or the domestic
market, the anti-competitive conduct falls within the prohibition.

Conclusion

Competition law should be to protect competition--- not competitors. Under the Indian
competition law, the term agreement is given a wide definition. This is because the parties
often choose not to formalize the agreement, in fact sometimes they go to great lengths top
hide the agreement or any trace of it, especially in case of cartels. The Competition Act of
2002 has made an attempt to deal with anti competitive practices, but it has failed to define
certain provisions which it has used in the Act, like market definition, relevant market etc.
The Act terrirably need to address this lacuna at the earliest. Further, the Competition
regulatory Authority must be well equipped with the provisions to deal with these kinds of
practices.

194
See section 3(1) of the competition Act of 2002.
176
 Part: B Regulation of Abuse of Domaince
Abuse of Dominant Position is an internal part of the mandate of modern competition authorities. For
a developing countries dealing with competition authorities who are starting Competition Law
enforcement as is the case in India, it is advisable abuse of dominance on a priority. Here in this
chapter we shall analysis what is Abuse of Dominant Position and how effective is the treatment of
Abuse of Dominance under the Indian Competition Act.

Introduction

The Indian Competition Law, the Competition Act of 2002, like other modern competition
laws covers agreements, abuse of dominant position and mergers. The Act prohibits Anti-
competitive Agreements and abuse of dominance and regulates combinations. It also
mandates competition advocacy, involving awareness building and mandates the
Commission to provide advice on laws, rules, regulations and policy. Existence of dominant
position is not frowned upon. Its abuse is, analysis of abuse of dominance, under the Act,
involves; determining status of enterprises as dominant and examining conduct of dominant
enterprise as abusive. The Indian law envisages that dominance is defined based on an
array of factors; both structural and behavioral. The types of conduct, when indulged in by
a dominant enterprise or group enjoying dominant position in the relevant market, are also
specified in the Act. Even though appreciable adverse effect on Competition in Indian
markets is the touchstone, the law does not specify any requirement for proof of appreciable
adverse effect on competition in the case of such conduct by any dominant enterprise or
dominant group in the relevant market. The Law of Competition in India seeks to ensure
fair competition by prohibiting trade practices which cause appreciable adverse effect on
competition in markets within India. The words adverse effect on competition embrace
acts or behavior of an enterprise enjoying dominant position in the market, agreement
(horizontal and vertical) between , and combinations (acquisition and mergers) of,
enterprises, which operate to the prejudice of public interests by unduly restricting
competition or obstructing due course of trade. The Dominant position has been defined to

177
mean 195a position of strength, enjoyed by an enterprise, in relevant market, in India, which
enables it to

i. Operate independently of competitive forces prevailing in the relevant market; or

ii. Affect its competitors or consumers or relevant market in its favour

Dominance in law implies that a firm has a high degree of immunity from the normal
disciplining forces of rivals competitive reactions and consumer behavior .on the other
hand, dominance as an economic concept is associated with the notion of market power.
Although the term dominance is a legal concept but its assessment is ultimately heavily
influenced by economic considerations. The Competition Act does not forbid an enterprises
or a group from becoming big. Bigness is essential to industrial efficiency and innovation.
But where it stifles competition, law intervenes. The law, therefore, does not prohibit
dominance. It prohibits its abuse. A monopoly is not objectionable merely because of the
size of the enterprise, its capital and power of production or merely because of the power to
restrain competition, if not exerted.

Concept of Dominance and Abuse

The ultimate concern of the competition law is about market power and its abuse. Market
power is used to mean the ability of enterprises to raise price above the level that would
prevail under the competitive conditions. Under the Competition Act of India, section 4
deals with Abuse of Dominance or dominant position by an enterprise or a group. It
prohibits the use of market controlling position to prevent individual enterprises or a group
from driving out competing businesses from the market as well as from dictating prices. The
concept of abuse of dominant position of market power refers to anti-competitive business
practices in which dominant firm may engage in order to maintain or increase its position in
the market.

195
Explanation (a) of section 4
178
 Dominant position

The Dominance defined in the section relates to the position of economic strength on a
properly defined relevant market which allows the dominant enterprise to behave
independently of its consumers. An enterprise is prohibited from abusing its dominant
position196. The provision first supposes that the enterprise enjoys a dominant position in
the market, and then prohibits that enterprise from abusing it. Dominant position and
Abuse of Dominant position, are the two requirements. Dominance itself is not
prohibited. What is prohibited is its abuse. When an enterprise197 or group of enterprise198
, directly or indirectly , imposes unfair or discriminatory___ (a) condition in purchase or
sale of goods or service; or (b) price in purchase or sale (including predatory price) of goods
or service, amounts to abuse of its dominant position in the market.

The definition appears to be somewhat ambiguous capable of different interpretation .but

this ambiguity has a justification ,as observed in Ragavan s Committee Report in paragraph
4.4-5, having regard to the fact that even a firm with a low market share of just 20 percent
with the remaining 80 per cent diffusedly held by a large number of competitors may be in
a position to abuse its dominance, while a firm with say 60 percent market share with 40
per cent held by a competitor may not be in a position to abuse its dominance because of
the key rivalry in the market. Specifying a threshold or an arithmetical figure for defining
dominance may either allow real offenders to escape or result in unnecessary litigation.
Hence in a dynamic changing economic environment, a static arithmetic figure to define
dominance will be an aberration [departure from what is normal or accepted or
regarded as right]. The definition, therefore, is broad enough to enable the authorities to

196
Section 4(1)
197
According to the Section 2(h) of the Act enterprise means a person or a department of the Government ,
who or which is, or has been , engaged in any activity, relating to the production , storage, supply, distribution,
acquisition or control of articles or goods or the provision of services , of any kind , or in investment, or in the
business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other
body corporate , either directly or through one or more of its units or divisions or subsidiaries, whether such units
or division or subsidiary is located at the same place where the enterprise is located or at a different place or at
different places, but does not include any activity of the Government relatable to the sovereign func tions of the
Government including all activities carried on by the departments of the Central Government dealing with atomic
energy, currency, defense and space.
198
Section 4(2), inserted by the Competition (Amendment) Act of 2007.
179
 have freedom to fix errant undertakings and encourage competitive market practices even if
there is larger player around. Abuse of dominance is key for the competition law. The
definition first defines domination as the enterprise position of strength in the relevant
market and then sets out criteria to determine that position in terms of the enterprise power
of operating independently of market forces or affecting competitors and consumers or the
relevant market in its favour. A dominant position refers to a situation of economic
strength, which gives the enterprise power to obstruct the maintenance of an effective
competition in the market concerned and enables it to conduct itself in a way that it is
independent from its competitors and consumers. Competitive forces in the relevant market
either having no effect on the operation of the enterprise, or being directed in its favour,
suggest domination of that enterprise. Either situation indicates the position of strength in
the relevant market. Thus a dominant position in a market controlling position, capable of
driving competing business from the market and also of dictating price. It is a power of
controlling prices or unreasonably restricting competition. The material consideration in
determining whether dominance exists is not that prices are raised and that competition is
actually excluded, but that power exists to raise prices or to exclude competition when it is
desired to do so199. Dominance has been defined in terms of: first, the enterprise ability to
operate independently of competitive pressure; and secondly; its ability to appreciable
affect the relevant market, competitors and consumers. Substantial impact on it, rather than
in terms of the market share, is the criterion. Domination in common parlance means
market power. Market power is the power to force a purchaser to do something that he
would not do in competitive market, and courts have ordinarily inferred the existence of
such power from the sellers possession of a predominate share of the market200.
Predominant share of the market is, however, no longer the criterion to determine
dominance. For establishing dominant position and its abuse it is necessary to:

o Define the relevant market, as the dominance does not exist in the abstract but in
relation to a market in which the undertaking competes , and after having so
done,

199
See American Tobacco Co.et al vs. United States 328 US 781.
200
See Eastman Kodak Co vs. Image Techical Service Inc ,504 US 451.
180
 o Asses market strength in order to see whether the undertaking possesses a certain
level of market power and finally,
o Consider whether the conduct of the undertaking amounts to an abuse of
dominant position.

A finding of dominance involves a two-stage process----

a) Defining relevant market and

b) Assessing the various factors giving rise to dominance201.

The key element of the section is to identify conduct that amounts to an abuse. In case
involving abuse of dominant basic distinction can be made between (a) exclusionary
abuses202, i.e. Unlawful attempts to exclude rival firms, refusal to deal, selective price
cutting. Etc, and (b) exploitative abuses 203 i.e. direct exploitation of consumers e.g.
Through excessive prices, imposing unfair condition s, limiting production markets or
technical development etc.

The Concept of Abuse

In general, action s that are considered anti-competitive and illegal in the context of
agreement are also illegal, if undertaken by a dominant firm. Section 4 specifically prohibits
204
an abuse of dominant position by enterprises but does not afford a definition of what
constitutes an abuse of dominant position. It is not an offence for a firm to be in a dominant
position but when firm is in a dominant position it has a special responsibility not to
conduct itself in manner which would harm the competitive process or competition in

201
See section 19 of the Competition Act
202
Exclusionary abuses results in long term harm to the dominant enterprise s customers or trading partners by
foreclosing the market to actual or potential competitors.
203
Exploitative abuses occurs where a dominant enterprise attempts to exploit the opportunities provided by its
market power to harm its consumers directly , eg through excessive prices or imposin g unfair trading conditions,
etc.
204
Section 28 of the Act gives power to the Competition Commission to order the division of such a dominant
enterprise such that the enterprise does not abuse its dominant position. This is a highly intrusive remedy which
should be used by their Competition Commission only in very rare circumstances.
181
market. European Court of Justice (ECJ) in Hoffmann-La Roche 205 stated that the concept
of abuse is an objective one which means that certain behavior of a dominant enterprise can
be abusive even where the enterprise did not have an intention to abuse it dominant
position. Section 4 lists certain practices which if carried out by a dominant enterprise,
would be considered as an abuse of its dominant position. Such practices include imposing
unfair or discriminatory conditions or prices for purchase or sale of goods or services,
limiting or restricting production of goods or services, technical or scientific development,
206
refusal to access essential facilities, tie- ins arrangements etc. Abuse of a dominant
position, therefore, means a conduct which cannot legitimately be carried out by the
dominant enterprise or group in the dominant market as also in the non-dominant market.
Section 4 only prohibits the conduct which exploits a dominant position but not an
enterprise or group holding a dominant position.

Assessing the relevant market

In order establish the abuse of dominant or dominance, it is first necessary to establishment

the dominance itself. Ever since the enforcement of section 2 of the Sherman Act in the US
economic analysis is playing an important role. This led to the development of certain key
concepts in competition economics namely, markets definition. Dominance or market
power exits only in relation to a relevant market, for to point out dominance one m ust say
upon what market an undertaking is dominant. It is, therefore necessary to determine first
what dominant position is. The relevant market is defined in the Indian Law with reference
to the competitive constraints that exist between products and regions. Relevant market is
based on relevant product market and relevant geographical market. Relevant market

205
Case 85/76, Hoffmann-La Roche vs Commission [1979] ECR 461 at Para 91; The concept of abuse is an
objective concept relating to the behavior of the undertaking in a domina nt position which is so as to influence
the structure of the market wher e, as a result of the very presence of the undertaking in question, the degree of
competition is weakened and which, through recourse to methods different from those which condition normal
competition in products or services on the basis of transaction of commercial operators, has the effect of
hindering the maintenance of degree of competition still existing in the market or the growth of that competition
206
Section 4 (2) (d) of the Act has been lifted verbatium from Article 82 of the EC tr eaty, at http:// eur-
lex.europa.eu/LexUriServ. Article 82 of the Tr eaty of the EC enumerates the following as being abuse of dominant
position; unfair prices or conditions, limiting production, markets or technical development, applying dissimilar
conditions to equivalent transaction, and making contracts subject to supplementary obligations having no
connection with the subject of the contracts.
182
is the market that may be determined by the commission with reference to the relevant
product market or the relevant product market or with reference to both the markets207.
According to the World Bank/OECD Glossary, If markets are defined too narrowly in
either product of geographic terms, meaningful competitition may be excluded from the
analysis. On the other hand, if the product and geographic market are too broadly defined
the degree of competition may be overstated. Too broad or too narrow market definitions
lead to understanding or overstating market share and concentration measure 208. Relevant
product market is defined in terms of substitutability of products. It means a market
comprising all those products or services which are regarded as interchangeable or
substitutable by the consumer, by the reason of the characteristics of the product are
services, their price and intended use209. In other words, the relevant product market can be
taken as the smallest set of products which are close substitutes. Along with this , section
19(7) of the Act enumerates the factors that are to be considered while determining the
relevant product market namely (a) physical characteristics or end use of goods; (b) price
of goods or services; (c) consumers preferences ; (d) exclusion of in-house production; (e)
existence of specialized producers; and (f) classification of industrial products. The first
three factors would aid in assessing the interchangeability of products or services.
Determination of substitutability of products can be either by way of demand side or supply
side substitutability or potential competition. Demand side substitutability involves shift of
demand to competing product on a small but significant non-transitory change in price.
Supply side substitutability involves shift of production promoted by a small but significant
non-transitory increase in the price, within a reasonable time period to meet demand. The
hypothetical monopolistic test, evolved in US is currently used widely in market definition
in many jurisdictions. The hypothetical monopolist test is also known as small but
significant non transitory increase in price (SSNIP) test210. In simplest terms, the SSNIP
test is based on hypothesis that if we assume there is a hypothetical monopolist over an
207
See section 2(r) of the Act
208
World Bank/OECD, Glossary of industrial Organization Economics and Competition Law. Available at < http;/w
www.oecd.org/
209
See section 2(t)
210
The phrase SSNIP, also known as Hypothetical Monopolistic Test was first deployed by the Department of
Justice and the Federal Trade Commission under US Competition law while analyzing horizontal mergers. SSNIP
originates from the 1982 U.S Merger Guidelines
183
area, would consumer substitution be enough to discourage the hypothetical monopolist
from raising the price by 5-20 percent without losing sufficient sales to render the price
increase unprofitable. If the price increase would be profitable, the product market is defined
properly. If the price increase would be unprofitable for the hypothetical monopolist___
because the monopolist would lose too many sales to products not included within the
preliminary defined market. Geographic aspect of the market, apart from the product, is
also important. Geographic market is the geographic area in which the conditions of
competition are sufficiently homogenous for the effect of the economic power of the
undertaking concerned to be able to be evaluated. The dictionary meaning of homogenous
is; formed of parts that all are of the same type. This refers to uniformity of composition that can
be distinguished from the conditions of competition such as terms of supply, or the mix of
the services offered or demanded in the neighboring areas. Only that part of the geographic
territory where uniformity of the composition is present should be considered the
geographic market. Conversely, when conditions prevailing in the neighboring areas are
different, the markets are different. The objective is that the exact sphere of competition,
both in terms of a physical market and a specific product or services is to be identified
towards ascertaining a dominant position. In other words, Geographic dimensions involve
identification of the geographic area within which the competition takes place. Relevant
geographic market could be local, national, international or occasionally even global
depending upon the facts in each case. In India, relevant geographical market has been
defined in the Competition Act 211as a market comprising the area in which the conditions
of competition for supply of goods or provision of services of demand of goods or services
are distinctly homogeneous and can be distinguished from the conditions prevailing in the
neighboring areas. Along with this, the factors that are to be considered while determining
the relevant geographic market have been enumerated in section 19(6) of the Act, namely
(a) regulatory trade barriers; (b) local specification requirement; (c) national procurement
policies; (d) adequate distribution facilities;(e) transport costs;(f) languages;(g) consumers
preferences and (h) need for regular source or regular suppliers or rapid after sales services.
It may be noted that all these factors excepting the last one will negate uniformity of

211
Section 2(s) of the Competition Act of 2002.
184
composition and would help in narrowing down the geographic territory to the actual
geographic market that is to be considered. The most recently legislated law of the central
eastern European countries are based on the relevant articles of the Treaty of Rome and
are most interventionist in design, in that they appear to rely exclusively on market shares
to establish dominance. The US laws , does not use the term abuse of dominance,
nevertheless it attempts to deal with similar issues with its prohibition on monopolization
and attempts to monopolise , while continuing to recognize that monopoly as such is not
illegal provided it is acquired through superior skill, foresight and industry.

Micro soft case

The European Commission212 held that Microsoft had abused its dominant position in the
market for desktop operating systems by freezing out rivals in adjacent markets such as
media player and server soft ware. The group was ordered to produce a version of
windows without Microsoft own media player and to make available technical information
that would allow rivals to develop server software that functioned smoothly with windows-
driven computers. The European Court ruled that Microsoft had violated European anti-
trust law by exploiting its near dominance in operating systems to shut out competitors like
Real Networks and Sun micro systems. According to the judgment, Microsoft cannot
regulate the market by imposing its products and services on people. It can no longer
prevent the market from functioning properly and that computer users and therefore
entitled to benefit from choice, more innovative products and more competitive prices.

Factors to be taken into account while defining Market

Mere dominance in the market is not abusive unless it is exerted when the enterprise is able
to do so. The concept of abuse of a dominant position of market power refers to anti-
competitive business practices in which a dominant firm may engage in order to maintain or
increase its position in the market. Competition Act 2002 does not specify any single proxy
variable for determining dominant position in the relevant market. Dominance is linked
with the host of factors like market share of the enterprise; size and resources of enterprise;

212
In the year 2004
185
Size and importance of competitors; commercial advantage o enterprise over competitors;
vertical integration; dependence of consumers ; dominant position as a result of a statute;
entry barriers; countervailing buying power; market structure and size of market; social
obligations and costs; contribution to economic development; and any other factor that the
Commission may considered relevant for the enquiry. Market share is traditionally the
single most used proxy for determining dominance. It has the advantage of being a very
clear and understandable criterion. However, market share as a proxy may not be a reliable
norm. In fact, to fix any across- the board applicable bench mark is difficult. A number of
factors like the market share of competitors in the market, countervailing power, the power
of consumers, barrier to entry, etc are normally taken into account in most competition
jurisdiction now. Apart from the above elements, various others factors taken into account
to assess dominance. An enterprise owning products which are not interchangeable with
other products on the market is likely to be in a dominant position. The reference to the
market share of the enterprise for specific product is also a determinant element.

Enterprise of similar size may differ in terms of their resources. An enterprise with deep
pockets has higher say in power and can. Therefore, afford to abuse the market power.
Control over financial resource facilitates financial leveraging. Control of inputs, involving
vertical integration, adds to market power and dominant position. Portfolio power could be
covered under this. Portfolio power refers to the market power due to the possession of a
portfolio of leading brands. This provides greater flexibility in structuring prices, greater
potential for tying, as also benefit from economies of scale and scope, both in sales and
marketing. Vertical integrated markets tend to create and / or strength market power and
dominant position and enables exclusionary behavior by way of foreclosure of input market
or denial of market access. Size and importance of competitors is an important
consideration. Dominance would depend, to a great extent, on the market share of the
competitorswhether the market shares of the competitors is small or large, whether the
competitors are too many in number with small shares in the market, etc. the market share
of the near rivals should be looked at.

186
In Hoffmann-la Roche & Co.AG vs. Commission of the European Communities,213 the court held
in determining dominance position of an enterprise the relationship between the market
shares of the undertaking concerned and of its competitors, especially those of the next
largest, the technological lead of an undertaking over its competitors, the existence of a
highly developed sales network and the absence of potential competition are relevant
factors. The percent of the market owned or controlled necessary to constitute a dominant
position is not static. Rather, it is dependent upon a number of factors including the relevant
market and the percentage of market share relative to other competitors. The European
Court of Justice has found a dominant position in cases ranging from ninety percent market
shares, to only a forty to forty five percent market share. In addition the Commission has
issued a report indicating that market shares of twenty to forty percent cannot be ruled out
as being dominant. Furthermore , it has also been suggested that even if the market share is
lower, a dominant position may be inferred if there are high barriers to entry that guard the
market shares.214 The position of Indian Law is somewhat different. Dominance has been
defined in terms of;

The position of strength enjoyed by an undertaking which enables it operate

independently of the competitive pressure and also to affect by its actions the relevant
market, competitors and consumers, and,
The substantial impact on the market including creating barriers to the new entrants.

It has not specified the market shares which the enterprise must hold in order to be
considered in a dominant position, because, as observed by the Raghavan s Committee
Report, a firm with a high market share may conduct business ethically if there is a strong
and effective rival in the relevant market and likewise, a firm with a small market share
may abuse its market power, if its competitors diffusedly hold the remaining market share.
Defining dominance rigidly in terms of arithmetical test would have been an aberration. It
has been kept deliberately vague to enable the authorities to fix the errant and thus to keep
competitive market practices even if there is a large player around. Dominance is looked

213
[1979] 3 CMLR211
214
See competition Law of India by Abir Roy and Jayanth Kumar, chapter 4 page 110, published by Eastern Law
House Private Ltd.
187
 at both from the structural perspective and from the behavioral perspective. The Indian Act
uses a mix of both. While the structural perspective looks at the factors like market share,
behavioral approach looks at the ability of the enterprise to raise price above normal levels
and the ability of the enterprise (or group) to act independently of consumers and
competitors, in the relevant market. Even though structural criteria are easier and more
practical, modern laws are veering more and more towards behavioral criteria or rather a
mix of both. It has also been found that reliance on behavioral approach is theoretically
more exact and is also more suited to developing country circumstances 215.

Concept of Collective Dominance

The recent216 amendment to the Competition Act, 2002 introduced the concept of group
dominance. Abuse of dominant position by an enterprise or a group of enterprises stand
prohibited under the Act to mean; two or more enterprises which, directly or indirectly,
are in a position to,;

i. Exercise 26 percent , or more of the voting rights in the other enterprise; or

ii. Appoint more than fifty percent of the members of the board of directors in the
other enterprise or
iii. Control the management or affairs of the other enterprise.

The question arises as to whether the concept of dominance by a group of enterprises is

the same as the concept of collective dominance under EU Competition Law. In the
context of the EU Law Collective Dominance implies tacit collusive behavior, where a
number of enterprises take strategic decisions keeping in mind the likely behavior of rivals.
In Compagnie Maritime Belge 217 the definition of collective dominance was clearly set out
by the court as follows; a dominant position may be held by two or more economic
entities legally independent of each other, provided that from an economic point of view
they present themselves or act together on a particular market as a collective entity. The

215
Adam , Michael and Adler, simon , Abuse of Dominance and its Effect on Economic Development in Qaqaya,
Hassan and Lipimile, Goerge, The effect of Anti Competitive Buisness practices on Devloping Countries and their
Development prospects UNCTAD, United nations , Newyork and Geneva. 2008.
216
The competition (Amendment) Act of 2007
217
Campagnie Maritime Belge vs.Commission, 2000 4 CMLR
188
 economic links, especially the structural links between the market players is required to
establish collective dominance. Compagnie Maritime Belge also clarified that no agreement
is required for collective dominance, while other connecting factors like market structure
are relevant. Collective dominance requires more rigorous analysis than is normally
applicable to single enterprise dominance. In Airtours the court of First Instance (CFI) laid
down clear guidelines as regards conditions that should be met for collective dom inance, as
follows218;

Each members of the oligopoly must know how the others are behaving so that it can
follow the same policy on issues such as pricing and supply;
Members must be deterred form changing their policy through fear of retaliation and
The oligopoly must be so powerful that it can withstand challenge from other
competitors, potential new market entrants and consumers.

Clearly, the concept of group dominance in the Indian Act differs substantially from the
concept of collective dominance under the EU Article 82. While under Competition Act
2002, group consists of enterprises legally linked to each other; the EU concept of collective
dominance involves undertakings that are strategically and not legally linked.

Instruments of Abuse

The abuse of dominant position is prohibited. An enterprise abuses when it imposes unfair
and abusive conditions. These conditions are neither unfair nor abusive when their
imposition is a legitimate competition need. Distinguishing predatory behavior from
legitimate competition is difficult. The distinction between low prices which result from
predatory behavior and low prices which result from legitimate competitive behavior is
often very thin and not easily ascertainable. Legitimate competitive behavior may demand
lowering of prices to meet a lawful and equally low price of a competitor. The demarcation
line between the two behaviors is very difficult to be drawn. However the following acts
and behavior are set out as abusive 219

218
Airtours vs.Commission [2002]ECR II 2585.
219
See section 4(2) of the Competition Act of 2002
189
 Predatory behavior towards competitors;
Discriminatory price or terms or conditions in supply or purchase of goods or
services;
Limiting production of goods or provision of services;
Denial of market access;
Concluding agreements providing for acceptance of supplementary obligations.

The above indicate behavior considered prima facie abusive when an enterprise is in a
dominant position. The focus is on the conduct of the market dominating enterprise rather
than on its dominance.

Dominant position Abuse -Predatory Pricing

Predatory pricing otherwise known as the destroyer pricing is one of the anti competitive
measure adopted by the companies and it refers to a practice of driving rivals out of the
business by selling at a price below the cost of production and thereby creating a barrier to
the new potential entrants. Even though the Indian Competition Act incorporates predatory
pricing as an abuse of dominance under section 4, the challenge before the enforcement
agency is to penalize predatory pricing as it is hard to distinguish between fair, aggressive
pricing on one hand and unfair, predatory pricing on the other. The Act specifically includes
predatory pricing 220as an act of abuse of dominance. The Act defines predatory pricing in
Explanation (b) of section 4 (2) (e) as the sale of goods or provision of services , at a price
which is below cost, as may be determined by regulations , of production of the goods or
provision of services, with a view to reduce competition or eliminate the competitors.
Usually, where the price is below average variable costs, predation is presumed. The
purpose of such behavior is to drive competing enterprise out of business so that dominant
position in the market could be maintained or strengthened. The principle that governs
predatory behavior is the intention to drive out competitor or lessen competition, i.e. , an
intention of impeding the entry of other economic entities into, or driving them from, the
market. In determining whether a conduct is predatory, the question of intent is relevant to

220
See section 4(2) (a) (ii) of The Competition Act 2002
190
the offence of monopolization221. The Raghavan Committee observes on predatory pricing
as follows222;

Predatory pricing is defined as the situation where a firm with market power prices below cost as
to drive competitors out of the market and, in this way, acquire and maintain a position of
dominance in reality, predation is only established after the fact, i.e., once the rival has left
the market and the predator has acquired monopoly position in the market. However, any law to
prevent is meaningful, only if it takes effect before the fact, i.e. before the competitor has left the
market.

The sale at a price below cost is not per se predatory. It has to be motivated with the said
intention. The behavior would be predatory and anti-competitive, if it could be established
that the dominant enterprise has engaged with a specific intent to monopolise and there is a
dangerous probability of achieving monopoly power. In absence of a plausible motive to
engage in predatory pricing, predatory charge cannot be sustained223. Identification of
predatory pricing is an important issue. The basic concept of predatory pricing is the price
below cost. Therefore, there is relation between costs and prices. Accordingly, a price
below the marginal cost is inductive of predatory pricing. Therefore another alternative is
that to use Average Variable Cost as a substitute. The courts have taken the opinion that
prices charged below variable costs by means of which a dominant undertaking seeks to
eliminate its competitors must be regarded to be anti-competitive. The US Supreme Court
in Utah Pie vs. Continental Banking Co224, considered price below the full cost is predatory.
Moreover it has also been decided that prices below average total costs i.e., fixed costs plus
variable costs but above average variable costs must be regarded abusive if they are
determined as a part of plan for elimination of a competitor. Such prices can drive from
the market undertakings, which are as efficient as the dominant undertaking but which
because of their smaller financial resources are incapable to withstand the competition. In

221
See Aspen Skiing Co. vs Aspen Highlands Skiing Corp .472 US 585
222
See paragraph 4.5- 1 of the Raghavan Committee Report.
223
Matsushita Elec. Industrial Co vs. Zenith Radio 475 US 574
224
386 US 685 (1967)
191
 AZKO Chemie vs. Commission 225 , the European Court of Justice sanctioned two different
methods of analysis for determining whether an undertaking has practiced predatory
pricing. First, prices below average variable cost (total variable costs divided by the number
of units produced) must always be considered abusive. In such case , there is no
conceivable economic purpose other than the elimination of a competitor. Since each item
produced and sold entails a loss to the undertaking. Secondly , prices below average total
costs 9 total cost divided by number of units produced ) but above average variable costs
are only to be considered abusive if an intention to eliminate competition can be shown226.
The Raghavan s Report on Competition Law observes, rejecting the proposal about
identifying the predatory pricing under the per se illegal category;___

After considerable discussions, it was agreed that having regard to the practical difficulties involved
and interpretation, it is better to treat predatory pricing as an abuse, only if it is unambiguously
established and indulged in by a dominant undertaking.

Therefore, it has first to be proved that the enterprise enjoys a dominant position in the
relevant market and then its intent to monopolise. Neither the fact of dominance nor the
intent alone is sufficient. Both must be proved. Their co-existence is necessary. What is,
therefore, required to be proved for the successful predations are; the existence of dominant
position , intention to destroy the rival and compel to leave , and, the possibility of
recoupment of the loss after the competitor has left.

Predatory pricing and Competition Act of 2002

Predatory pricing is an exclusionary practice227. Although the enforcement provisions of

the Act have not yet been notified. It can be expected that CCI when interpreting section 4
of the Act will look into the allegation of the PP not only when it has actually produced the
pursued exclusionary effect, such as the elimination of competition or creation of an entry
barrier , but also when such a conduct is likely to attain these goals. A similar approach is

225
(1993) 5 CMLR 215.
226
See Tetra Pak international vs. Commission (1996) ECR 1 -5951 (1997) 4 CLR 662.]
227
Exclusionary Practice has been defined by Judge Wyszynski in United States vs Un ited Shoe Machinery
Corp,110 F Supp 295 , to mean a practice that deters potential rivals from entering the monopolist s market , or
existing rivals from increasing their output in response to the monopolist s price increase.
192
 followed in the European Community where the European court of Justice has held that it
must be possible to penalize predatory pricing whenever there is risk that competitors will
be eliminated since the aim pursued, which is to maintain undistorted competition, rules
out waiting until such a strategy leads to the actual elimination of competitors. The
Competition Commission of India has adopted the Average Variable Cost228 (AVS) as the
appropriate measure of cost, which is by and large the measure of cost adopted in all
jurisdictions. There is a presumption in most cases that where the enterprises sets in sale
price below its AVC, it has engaged in a predatory pricing practices contrary to section 4.
However, prices falling between the ATC and AVC are also subjected to inquiry, but in
such case specific intent would have to be shown. Prices set above the ATC are unlikely to
be challenged. Once a predatory price allegation is established, the enterprise would be said
to have abused its dominant position. where after inquiry , the CCI finds that an enterprise
in a dominant position is in contravention of the provision s of section 4, it my pass any of
the orders specified under section 27 229of the Act and may further under section 28 of the

228
Average variable cost is defined as the total variable cost divided by total output during the period of alleged
predation . The CCI states that the cost in Explanation (b) to section 4 of the Ac t shall mean average variable
cost unless the commission decide otherwise.
229
Section 27 deals with the orders by commission after inquiry into agreement or abuse of dominant position.
Where after the inquiry the commission finds that any agreement r eferred to in section 3 or action of an
enterprise in a dominant position, is in contravention of section 3 or section 4 , as the case may be, it may pass all
or any of the following orders namely;__
a) Direct any enterprise or association of enterprises or person or association of persons , as the case may be,
involved in such agreement or abuse of dominant position, to discontinue such abuse of dominant position
, as the case may be;
b) Impose such penalty , as it may deem fit which shall be not more than ten percent of the average of the
turn over for the last three prec eding financial years , upon each of such person or enterprises which are
parties to such agreements or abuse;
provided that in case any agreement r eferred to in section 3 has been enter ed into by any cartel, the
commission shall impose upon each poduecr , seler , distributor , trader or service provider included in that
cartel, a penalty equivalent to three times of the amount profits made out of such agreement by the cartel or
ten per cent of the sverage of the turnover of the cartel fro the last preceding three financial yea rs , whichever
is higher,
c) [omitted by the competition (Amendment ) Act of 2007
d) Direct that the agreement shall stand modified to the ex tent and in the manner as may be specified in the
order by the commission;
e) Direct the enterprises concerned to abide by such other orders as the commission may pass and comply
with the directions , including payment of costs , if any;
f) [omitted by competition 9Amendment ) Act 2007]
g) Pass such other ( order or issue such directions ) as it may deem fit,
193
 Act direct the division of an enterprise enjoying a dominant position to ensure that such an
enterprise does not abuse its dominant position. Interestingly, Predatory behavior is not
merely confined to pricing. Other means can be considered predatory, such as acquisition
with a view to the suspension of activities of competitors, excessive pricing, or the refusal
to supply material essential for the production activities of a customer who is in a position
to engage in competitive activities230 .

Abuse on pricing : Discriminatory prices

The predatory behavior is not limited to predatory pricing; price discrimination is also
such behavior. Discriminatory pricing in supply or purchase of goods or services is
regarded is prohibited by Law. Though it is closely related to, but different from predatory
pricing. Both are intended to injure competitors; in one it is of the favoured purchaser,
while in the other, of thee dominant enterprises itself. Injury to the competitors alone is not
as important as the likely to the competition. Predatory behavior is not limited to predatory
pricing; price discrimination is also such behavior. Predatory pricing involves not just
below cost pricing but also price discrimination. Belowcost pricing is predatory when
aimed to destroy direct competitors of the undertaking. The aim of the discriminatory price
is also the same, destruction of the competitors also of those of the favoured purchasers. A
selective discriminatory pricing policy by a dominant firm designed purely to damage the
business of, or deter market entry by, its competitors, whilst maintain higher prices for the
bulk of its customers, is both exploitative of these other customers and destructive of
competition. The imposition of different prices for the same product in different areas
without any justification is also considered anti-competitive231. Differentials are not
discriminatory or unfair which are based on savings in selling costs from differing methods
of distribution, or when the transaction s are bona fide and not in restraint of trade or
where they are made in good faith to meet an equally low price of a competitor. The Law,

Provided that while passing orders under this section , if the commission comes to a finding , that an
enterprise in contravention to section section 3 o section 4 of the Act is a members of a group as defined in
clause (b) of the Explanation of section 5 of the Act , a nd other members of such group are also responsible fro,
or have contributed to such a contravention , the it may pass orders , under this section , against such members
of the group.
230
Brooke Group Ltd. Vs Brown & Wikkiamson Tobacco Corpn , 509 US 209.
231
See FTC vs Bush Inc 363 US 536
194
 therefore, does not forbid price Competition. It, however, provides that sellers may not sell
goods to different purchasers at different prices, if the result may be to injure competition in
either the seller s or the buyers market unless such discriminations are justified. It is on the
seller to show that, his price was actually a good-faith response to that competing low
price. The standard of good faith response is the standard of a prudent businessman
responding fairly to what he reasonably believes is a situation of competitive necessity.232
Discounts and rebates are a normal incident of commercial world and not a characteristic
of market power. However, discounting polices of the dominant firms are under certain
circumstances severely constrained. A discount ceases to be normal and becomes abusive
when it is intended to tie customers to which it is granted and place competitors in an
unfavorable competitive position. Differential or discriminatory bonus or discount based
on quantity is similarly abusive practice inasmuch as discounts would reduce the
opportunities of the smaller dealers in being able to compete with the bigger ones and this
would have the effect of preventing distorting or reducing competition between them233.
Thus, the prohibition of the price discrimination tends to protect small firms against the
discounting polices of their larger and more efficient rivals.

Dominant position Abuse Limiting or restricting production

Limiting or restricting production of goods or provisions of services or market therefore ,

technical or scientific development relating to goods or services to the prejudice of
customers , is abuse. Limiting or restricting market for goods or services is anti-competitive,
when a supplier in a dominant position insulates particular market on from another and
thereby engages in a different pricing according to the level that each market can bear.

Practices resulting in denial of market access

The practice which results in denial of market access is abusive in nature. A course of
conduct adopted by a dominant undertaking with a view to excluding a competitor from a
market by means of other than legitimate competition on the merits is an infringement.

232
Falls City Industries Inc vs Vanco Beverage Inc. 460 US 428
233
See Shashikala Glass Works (P) Ltd. In re [1993] 3 Comp LJ 385 (MRTPC) and Director General vs Rajshree
Cement [1995] 83 Comp Cas 712 (MRTPC)
195
 The injury to the competition will be aggravated where the stated purpose of the action is
indirectly to prevent the entry into the market of a potential competitor to the dominant
producer. Refusal to deal and Refusal to supply are the practices which results in denial of
market practices. Dominant undertaking thereby creates artificial barriers denying access
to, or resulting in a competitor leaving market. An undertaking has freedom to choose
customers, the circumstances and conditions to deal with. It has right to deal with or refuse
to supply its products in its business interest. But right is not absolute. It is held to be
violative of law if it impedes competition.

Essential facility Doctrine

The Monopolist cannot use its market power to prevent or impede competition in the
relevant market. A monopolist has the duty to provide competitors with reasonable access
to essential facilities, facilities under the monopolists control and without which one
cannot effectively compete in a given market. Essential means vitally important;
absolutely necessary. This is one of the recent extensions that have come in view of the
judicial prouncements as regards it being an instrument of abuse of dominant position. The
doctrine postulates a situation where in a dominant firm owns or controls a facility, which
is an essential facility to which one of its competitors would like to gain access to it so that
it can sell its goods or provide its services. The refusal to grant such essential facilities to its
competitors would tantamount to abuse of dominant position. The origin of the doctrine of
essential facilities was formed in US where the Supreme Court probably first use this
doctrine in United States vs Terminal Railroad Association234. This was a case of section 1
violation where joint venture was formed by several railroad companies to buy and run rail
terminals. The joint venture denied the non- members the ability to use the terminals. The
Court held the practice to be anti-competitive as the non-members could not effectively
compete without the access to the essential facilities and it was held that the same analogy
would be applicable to unilateral activity undertaken by dominant firm.

234
United States vs Terminal Railroad Association 361 US 116 (1959)
196
 Dominant position Tying and bundling agreements

Forcing obligation s which have no relation to the subject matter of a contract are illegal
and anti-competitive. Tying agreements involves an agreement wherein there exists a
dominant firm who agrees to sell a desirable product or service which is the tying product
only on the pre-condition that buyer shall purchase a less desirable second product or
service, i.e. the tied product irrespective of the fact that whether the buyer wants the second
product or not. Bundling refers to the situation s where a package of two or more products
is offered. The law therefore forbids tying arrangements in a contract. Tying agreements
violates, when the seller enjoys a dominant position in the market for the tying product
and a substantial volume of trade in the tied product is restrained. In Director General
Vs Gascom Gases235, it was held that the condition that the distributor dealing with similar
items other than the products of the company will be seriously viewed and in such cases the
distributorship will be terminated without notice is regarded as anti -competitive practice.
But tying of the two products would not be violative if they are so integrated that they
could be taken components of a single product or service. It would be permitted if there is a
link between the two because of their nature or customary usage, as a reading of section
4(2) (d) of the Competition Act suggests when it refers to supplementary obligation s
which, by their nature or according to commercial usage, has no connection with the
subject of such contracts. There could be business justification for tying action, such as, a
commitment to quality service, a need to control inventory costs, a desire to prevent the
competitor from free riding on capital investment of the undertaking, or safety, healthy or
quality reasons.

Acts in Bonafide Competition Exempted

The Explanation to section 4(2) (a) exempts such unfair or discriminatory trading
conditions or unfair or discriminatory prices or predatory pricing referred to in section 4(2)
(a) (i) and (ii) , setting out those practices as an abuse of dominant position , from being
considered as an abuse of a dominant position , when there are adopted to meet
competition . the basis for this contention is that when enterprises are engaged in bonfide
235
[1995] 84 Comp Cas 615 [MRTPC]
197
 competition and readjusting their trading strategies to meet the terms of offers of
competitors in a market as it evolves, there is no abuse by any of the enterprises. They are
only responding to the market situation. for example , if prices fall in the market, for
reasons not the action of an enterprise, a reduction in the price by that enterprise to match
its prices o the new prices cannot be termed unfair pricing or predatory pricing. Actually,
this explanation is a defense that may be urged by one charged with having abused a
dominant position under section 4(2) (a). It should be noted that it is not available in the
case of allegations of practices set out in section 4(2) (b) to (e) 236.

Remedies for Abuse of Dominance under Indian Competition Law

Section 19(1) of the Competition Act 2002 provides that the Commission may either on
its own motion or on the receipt of a complaint, accompanies by such fee as may be
determined by regulations, from any person, consumer or their association or trade
association or the reference made by the Central Government or a statutory authority,
inquire into any alleged contravention of the provision s contained in section 3(1) or 4(1).
The powers of the Commission while enquiring into the case of abuse of dominant position
and the factors are to be taken into consideration, as set out in section 19(4) to (7) of the
Act237. Under section 27 of the Act, where after the inquiry the commission finds that any

236
Section 4 (b) limits or restricts ,---
a) Production of goods or provision of services or market ther efore; or
b) Technical or scientific development relating to goods or services to prejudice of consumers ;or
c) Indulges in practice or practices resulting in denial of market access [ in any manner]
d) Makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which,
by their nature or according to commercial usage, have no connection with the subject of such contracts;

237
Section 19(4) says the Commission shall, while inquring whether an enterprise enjoys a dominant position or
not under section 4, have due regard to all or any of the foll owing factors, namely
a) Market share of the enterprise;
b) Size and resources of the enterprise;
c) Size and importance of the competitors;
d) Economic power of the enterprise including commercial advantage over competitotrs;
e) Vertical integration of the enterprises or sale or service s network of such enterprises;
f) Dependence of consumers on the enterprise ;
g) Monopoly or dominant position whether acquired as a result of any statue or by virtue of being a Government
company or a public sector undertaking or otherwise;
h) Entry barriers including barriers such as regulatory barriers , financial risk, high capital cost of the entry,
marketing entry barriers , technical entry barriers, economics of scale , high cost of substitutable goods or
service for consumers;
198
 agreement referred to in section 3 or action of an enterprise in a dominant position , is in
contravention of section 3 or section 4 , as the case may be , it shall pass all or any of the
following orders, namely;

a) Direct any enterprise or association of enterprises or person or association of

persons , as the case may be, involved in such agreement , or abuse of dominant
position to discontinue and not to re-enter such agreement or discontinue such
abuse of dominant position , as the case may be;
b) Impose such penalty , as it may deem fit which shall be not more than ten per cent
of the average of the turnover for the last three preceding financial years , upon each
of such person or enterprises which are parties to such agreements or abuse: 238
c) [omitted by Competition (Amendment ) Act , 2007]

i) Countervailing buying power;

j) Market structure and size of market
k) Social obligations and social costs;
l) Relative advantage , by way of the contribution to the economic development, by the enterprise enjoying a
dominant position having or likely to have an appreciable adverse effect on competition;
m) Any other factors which the commission may considered relevant for the inquiry.
5) For determining whether a market constitutes a relevant market for the purposes of this Act, the
Commission shall have due regard to the r elevant geographic market and relevant product market .
6) The Commission shall, while deter mining the relevant geographic market , have due r egard to all or any of
the following factors, namely;__
(a) Regulatory trade barriers;
(b) Local specification requirements ;
(c) National procurement polices;
(d) Adequate distribution facilities;
(e) Transport costs;
(f) Language;
(g) Consumers preference;
(h) Need for secure or regular suppliers or rapid after-sales services;
7) The Commission shall , while deter mining the relevant product market, have due regard to all or any of the
following factors, namely;__
(a) Physical characteristic or end use of goods;
(b) Price of goods or service;
(c) Consumer prefer ences;
(d) Exclusion of in-house production;
(e) Existence of specialised producers;
(f) Classification of industri al products.
238
The Competition (Amendment) Act of 2007
07 provides that in case any agreement referred to in section 3 has been entered into by cartel, the Commission
shall impose upon in that cartel , a penalty equivalent to thr ee times of the amount of profits made out of such
agreement by the cartel or ten per cent of the average of the turnover of the cartel for the last preceding three
financial years , whichever is higher.
199
 d) Direct that the agreements shall stand modified to the extent and in the manner as
may be specified in the order by the Commission;
e) Direct the enterprises concerned to abide by such other orders as the Commission
may pass and comply with the directions , including payment of the costs , if any:
f) Omitted by Competition (Amendment ) Act , 2007]
g) Pass such other as it may deem fit.

Furthermost, the Commission is empowered to grant interim relief in the form of

temporary injunction. In almost all the jurisdictions, injunction, compensation and
division of the enterprise are the common remedies available to the plaintiff in case of
abuse of dominant position by the defendant.

Conclusion

The abuse of dominant position is another way of interfering with competition in the
market place. In simple terms it refers to the conduct of the enterprise that enjoys a
dominant position, as defined in the Act. In substance, dominant position means the
position of strength enjoyed by an enterprise that enables it to act independently of
competitive forces prevailing in the relevant market. Such an enterprise will be in a
position to disregard market forces and unilaterally impose trading condition s, fix prices,
etc. the abuse may result in the restriction of competition, or the elimination of effective
competition. Some of the various forms of abuse are: price fixing, imposing discriminatory
pricing, predatory pricing, limiting supply of goods or services, denial of market access, etc
Abuse of dominant position is an integral part of the mandate of modern competition
authorities. For developing country competition authorities who are starting Competition
Law enforcement, as in the case of India, it is advisable to deal with abuse of dominance
on a priority. The question is relevant in the context of India where the Competition
Commission of India has not yet started enforcement action yet. Abuse of Dominance
cases should be taken up by competition authorities only after they have had experience in
other areas of enforcement viz. anti competitive agreement and mergers. However new
competition authorities which invariably are in developing countries where infrastructure
development is a priority. Abuse of dominance remains a thrust area in view of the close
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link between essential facilities and infrastructure facilities. Infrastructure facilities tend to
qualify as essential facilities for the application of competition Law in view of the lumpy
investment involved and the long gestation lag in creating infrastructure. Besides,
Dominance is to be determined by the Commission based on a number of factors which are
either structural or behavioral in nature. The Act provides an exclusive list of abuses. It also
takes cognizance of abuse by a group having dominant position in the relevant market.
However, the relevant provision in the India law is distinct from the concept of collective
dominance in EU law. The Indian law provides for effective remedies for abuse of
dominant position, including the power for the Commission to order division s of
enterprise abusing dominant position.

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 Part C : Competition Law and Combination

The third element of modern law is merger/ combination. The Law of competition in India seeks to
ensure fair competition by prohibiting trade practices which cause appreciable effect on competition in
markets within India. Here in this chapter the researcher makes an attempt to discuss about the term
Combination, the legal framework of competition law to deal effectively with the aspect of mergers
/Combination and their effect on competition. The international mergers, having its impact on the
Indian market and economy. The provision s contained in the Act to deal effectively with the anti
competitive mergers and the role of Competition regulatory Authorities.

Introduction

An entrepreneur may grow its business either by internal expansion or by external

expansion. In the case of internal expansion, a firm grows gradually over time in the normal
course of the business, through acquisition of new assets, replacement of the technologically
obsolete equipments and the establishment of new lines of products. But in external
expansion, a firm acquires a running business and grows overnight through corporate
combinations. These combinations are in the form of mergers, acquisitions, amalgamations
and takeovers and have now become important features of corporate restructuring. They
have been playing an important role in the external growth of a number of leading
companies the world over. They have become popular because of the enhanced
competition, breaking of trade barriers, free flow of capital across countries and
globalization of businesses. In the wake of economic reforms, Indian industries have also
started restructuring their operations around their core business activities through
acquisition and takeovers because of their increasing exposure to competition both
domestically and internationally. The Competition law is a modern piece of economic
legislation. Worldwide competition laws have three contours, as discussed in the earlier
chapters, i.e. Anti-competitive agreements, Abuse of dominance and regulation of Mergers
and Acquisitions. Indian law has all the essential ingredients of anti -competitive practices
provisions. Anti-competitive agreements and abuse of dominance are intended to be
prohibited by orders of the commission, whereas, combination (merger) are to be regulated

202
by orders. This distinction in law indicates the intention of the legislators. Competition
ensures economic growth, more economic opportunities for business to compete with their
overseas counterparts and consumers welfare ultimately. Many a times an anti -competitive
combinations harm markets and subvert the interest of the consumers. In amicable and
consensual mergers the parties have unanimity of interests and any competition authority
would really have not much to do but to allow such proposals. In India the combination is
anti competitive if it creates a dominant enterprise that subsequently abuses its dominance.
Concentration of economic power occurs inter alia, through takeovers and mergers. A
Merger involves two separate undertaking merging entirely into a new entity. A Merger,
broadly speaking, a transaction that brings about a change in control of different business
entities enabling one business entity effectively to control a significant part of the assets or
decision making process of another. In business world joining of ownership may take
many different forms, and may be either amicable and consensual or unwelcome and
hostile. In India mergers are regulated under the Companies Act and also under the SEBI
Act. With the enactment of the Competition Act 2002, mergers also come within the ambit
of this legislation. The Combination is an umbrella term used in the Competition Act 2002,
which includes every kind of mergers, amalgamations and acquisitions 239 under its ambit.
The Competition Act has laid emphasis on regulating these combinations in order to
prevent any anti-competitive practices. The Section 5 of the Act defines combination of
enterprises as formed through acquisition, merger or amalgamation. The Combination s has
been defined to mean:

(a) The Acquisition of control ,shares voting rights or assets of one or more enterprises
240
by one or more persons 241;or

239
Section 2(a) acquisition means ,directly or indirectly , acquiring or agreeing to acquire :
(i) Shares , voting rights or assets of an enterprise; or
(ii) Control over management or control over assets of any enterprise.
240
Section 2(h) enterprise means a person or a department of the Government engaged in the business activity of
production, distribution, acquisition or control of articles or goods or provisions of services of any kind or in
investment or in the business of acquiring , holding , underwriting or dealing with the shares , debentur es or either
securities of any other body corporate, either directly or through one or more of its units or divisions or
subsidiaries ,whether such unit or division or subsidiary is located at the same place where the enterprises is
located or at a different place or different places, but does not i nclude any activity of the Government relatable to
the sovereign functions of the Government including all activities carried on by the departments of the
203
 (b) Acquiring the control by a person over an enterprise where such person has control
242
over another enterprise engaged production, distribution or trading of similar or
identical or substitutable good or provision of similar or identical or substitutable
service; or
(c) Merger or amalgamation between or amongst the enterprises provided that the
resultant entity/ies breach the stipulated thresholds

The test of the legality of merger is based on the size of assets and turnover, and not the
market share and is not derived from the provision of dominance as defined in explanation
(a) of section 4 but is phrased in the terms of measures of the actual or potential effect on the
competition243. Further, Section 6 deals with regulation of combinations. It contains a
prohibition against a combination which causes or is likely to cause an appreciable adverse
effect on combinations. In a merger, the legal effect of which is that the merging company
will lose its corporate status as a company and will be owned by the company with which it
has merged, the merging company autonomy is lost in its entirely to the merged company.
The control of an enterprise244 can be acquired through the modes such as purchase of
securities, assets or contract, the loss of autonomy of the other company need not be total or
as perceptible. Yet, the acquiring company would be in a position to decide what the other
company should do, even though that enterprise continues to be a separate legal entity. The
objective of any competition law is to ensure that persons or enterprises obtaining this
autonomy through merger or acquisition do not impair the structure of competition. The

Government including all activities carried on by the departments of the Central Government dealing with atomic
energy , currency ,defense or space.
241
Section 2(l) person includes --- (i) an individual; (ii) a Hindu Undivided Family (iii) a Company ;(iv) a firm ; (v) an
association of persons or a body of individuals; whether incorporated or not , India or outside India;(vi) any
corporation established by or under any Central or State or Provincial Act or a Government company as defined in
section 617 of the Companies Act , 1956 ; (vii) any body corporate incorporated under any law relating to
cooperative societies; (viii) a co-operative society registered under any law relating to co-operative societies ; (ix) a
local authority ; (x) every artificial juridical person , not falling within any of the preceding sub -clauses.
242
Section 2(x) Trade means any trade, business, industry, profession or occupation relating to production, supply,
distribution storage or control of goods and includes any provision of any services.
243
Some merger control regimes for example Kenya require notification of all mergers regar dless of size or
cahrter.
244
Explanation a to section 5 Control includes controlling the affairs or management by
(i) One or more enterprises , either jointly or singly , over another group or enterprise;
(ii) One or more groups, either jointly or singly, over another group or enterprise.
204
Act uses a composite expression combination to cover these modes, viz. merger,
acquisition of shares, assets, acquiring control of an enterprise. In India, the legislative
provisions governing mergers of companies are contained in section 390 to section 396A of
the Companies Act 1956. Section 5 of the Competition Act deals with the aspect of
combination and merger is included within the ambit of combination. Particularly, section 5
(c) of the Competition Act describes the mode in which a combination may be brought
through a merger. Merger is a business combination. In merger, the identity of one or more
is lost and the result is a single enterprise. In take over the identity is not lost. It involves the
purchase of all or sufficient amount of shares of another enterprise to enable it to exercise
control. Whereas, amalgamation is a blending of two or more existing enterprises into one
enterprise, the shareholders of each blending company become substantially the
shareholders in a company which is to carry on the blended business. There may be
amalgamation either by the transfer of the two or more enterprises to a new company or by
the transfer of one or more enterprise to an existing enterprise. Broadly amalgamation is a
merger of two or more enterprises. Narrowly, it means, the formation of a new company. If
the companies are simply merged with each other, it is simply called merger. Merger or an
amalgamation of enterprises is a combination which is forbidden under the law if it causes
or likely to cause an appreciable adverse effect on the competition within the relevant
market in India.

Advantages of Merger

The merger is sought to be beneficial for variety of reasons, most of the mergers are pro-
competitive. It is an inexpensive way of entering into a new activity or a new market; it
gives the opportunity to use the spare capacity in the acquiring company with the assets of
the other company. Where the companies are under the control of the same group, a merger
may be seen as a means of affecting economics in making a company just a unit of another
company. Further, a merger may also help rationalizing of operations or advance synergies
in management; and also provides a means for tax saving in that the losses of the transferor
company may be set off against the profits of the remaining company. Another advantage of

205
the merger would be saving in stamp duty on the sale of large assets by one company to
another. More over the following are some advantages of mergers:

Accelerating a company's growth, particularly when its internal growth is

constrained due to paucity of resources. Internal growth requires that a company
should develop its operating facilities- manufacturing, research, marketing, etc. But,
lack or inadequacy of resources and time needed for internal development may
constrain a company's pace of growth. Hence, a company can acquire production
facilities as well as other resources from outside through mergers and acquisitions.
Specially, for entering in new products/markets, the company may lack technical
skills and may require special marketing skills and a wide distribution network to
access different segments of markets. The company can acquire existing company or
companies with requisite infrastructure and skills and grow quickly.
Enhancing profitability because a combination of two or more companies may result
in more than average profitability due to cost reduction and efficient utilization of
resources.
Diversifying the risks of the company, particularly when it acquires those businesses
whose income streams are not correlated. Diversification implies growth through the
combination of firms in unrelated businesses. It results in reduction of total risks
through substantial reduction of cyclicality of operations. The combination of
management and other systems strengthen the capacity of the combined firm to
withstand the severity of the unforeseen economic factors which could otherwise
endanger the survival of the individual companies.
A merger may result in financial synergy and benefits for the firm in many ways:-

By eliminating financial constraints

By enhancing debt capacity. This is because a merger of two companies can
bring stability of cash flows which in turn reduces the risk of insolvency and
enhances the capacity of the new entity to service a larger amount of debt
By lowering the financial costs. This is because due to financial stability, the
merged firm is able to borrow at a lower rate of interest.

206
 Limiting the severity of competition by increasing the company's market power. A
merger can increase the market share of the merged firm. This improves the
profitability of the firm due to economies of scale. The bargaining power of the firm
vis--vis labour, suppliers and buyers is also enhanced. The merged firm can exploit
technological breakthroughs against obsolescence and price wars

Merger Analysis in India

The basic issues raises from the above mentioned are whether Mergers are anti-competitive
or pro-competitive? It is imperative to understand the impact of merger on competition in
the relevant market. One should remember that competition means better choice and lower
prices for the consumers. Merger among small players to give competition to large sized
players is always pro-competitive and efficiency enhancing for such marginal players. But a
merger between a large and a small player , as happens in the airlines sector in India , does
raise competition concerns as it makes an already big player bigger and such merged entity
is likely to have a tendency to abuse its dominance for increasing its profits by indulging in
any of the anti-competitive practices, such as imposing unfair or discriminatory conditions,
limiting or restricting services to the selected few , denying market access to other players or
to even enter into other product or services markets through their dominant position in one
product or services market. For example, the business class travelers in Kingfisher airlines
will be routinely served only kingfisher beers. All these business practices which may be
better known in the corporate world as tricks of trade are prohibited under the
Competition Act, 2002, and are against the spirit of competition, which is the backbone of a
free market economy. Furthermore, The provision relating to analysis of merger contained
in the MRTP Act were deleted from the Act vide the MRTP (Amendment ) Act 1991 and
hence there is nothing in the Act which gave the power s to the MRTP commission to view
a merger and analyses whether the same can be anti-competitive before the companies are
actually merged. On the other hand the Competition Act 2002 , the aspect of pre-
notification has been mandatory vide the competition (Amendment) Act 2007 and
competition commission is fully empowered to view a proposed merger and block the same
if the proposed effect is viewed to be anti-competitive. It is to be noted that, Merger analysis

207
differs from the analysis of anti-competitive agreements or abuse of dominance in an
important ways; in the case of mergers, the authority is trying to look into future
performance or behavior rather than into existing or past behavior. The exercise is similar to
that for determining the relevant market in case of abuse of dominant position, with
however, one point of difference according to some authorities. Unlike in the analysis of
abuse of dominance, the inquiry relating to the competitive effects of mergers is forward
looking and the main concerns is whether the merger will cause the price or rise above the
prevailing level, through that level may be above the competitive level. Thus according to
these authorities, the cellophane fallacy, which is pertinent in the case of abuse of
dominance, is not relevant in merger case245. Also, in the case of mergers, timely
completion of the inquiry becomes important so as not to unnecessarily hold up a proposed
merger. Many competition laws, therefore, provide for a limit for the completion of a
merger inquiry; if not completed in that time, the law may provide that the merger is
deemed approved. Competition authorities issues merger guidelines describing the process
they will use in analyzing the merger. Under the Companies Act 1956, a scheme of merger,
or amalgamation as it is referred to in the Act, is an arrangement between a company and
usually, as its members by which the assets and liabilities of one company are transferred to
the other company and if the scheme is approved by the prescribed majority of the members
of both companies, the court may sanction the scheme of merger. Amalgamation in relation
to companies means the merger of one or more companies with another company or merger
of two or more companies to form one company. Two companies may join to form a new
company. When two companies are merged and are so joined, as to form a third company
or one is absorbed into one or blended with another, the amalgamating company loses its
identity. In India, under Companies Act, merger between Companies essentially tries to
protect the interest of the secured creditors and in the SEBI Act it tries to protect the interest
of the investors. Apart from protecting the interest of private parties, the objectives of them
is different or mutually exclusive. In the Competition Act, the objectives are much broader.
The Act aims at protecting the appreciable adverse effect on trade related competition in
the relevant market in India. So, though the Companies Act and SEBI Act, both are

245
See Ramappa T, PP 193 .
208
mutually exclusive, yet aims to protect the interest of private individuals, whereas under
Competition Act, the impact of combination directly affects the market and the players in
the market including the consumers. Therefore, we can rightly say that, apart from the fact
that all these legislations are mutually exclusive, the companies Act and SEBI Act are the
sub-sets of Competition Act in so far as legal scrutiny of mergers are concerned.
Interestingly ,The Competition Act does not define anti competitive combination with
reference to market share: section 5 thereof defines it as accusation of one or more
enterprises by one or more persons or merger or amalgamation of enterprises , with
reference to threshold criteria of the value of assets and turnover of the enterprise involved.
To constitute anti-competitive combination, section 5 of the Act has laid down certain
requirements including a threshold requirement based on assets and turnover of the
combing enterprises or groups. The regulation of Combinations is governed under section 5
of the Competition Act. The combination results in concentration of economic power
through;

i. Section 5 (a) --- Acquisition of an enterprise by another enterprise.

ii. Section 5(b) ---Acquisition of control over an enterprise by a person having control
over another enterprise engaged in similar or identical or substitutable goods or
services.
iii. Section 5 (c) ---Merger or amalgamation of enterprises.

Section 5 of the Competition Act 2002, says: the Acquisition of one or more enterprises by
one or more persons or mergers or amalgamation of enterprises shall be a combination of
such enterprises and persons or enterprises, if;

(a) Any acquisition where:

(A) The parties to the acquisition , being the acquirer and the enterprise, whose
control, shares , voting rights or assets have been acquired or being acquired
jointly have: either, in India , the assets of the value of more than rupees one
thousand crores or turnover more than rupees three thousand crores; or in India
or outside India , in aggregate , the assets of the value of more than five hundred

209
 million US dollars, including at least rupees five hundred crores in India, or
turnover more than fifteen hundred million US dollars , including at least rupees
fifteen hundred crores in India ; or]
(B) The group , to which the enterprises whose control , shares assets or voting rights
have been acquired or are being acquired , would belong after the acquisition ,
jointly have or would jointly have: either in India , the assets of the value of more
than rupees four thousand crores or turnover more than rupees twelve thousand
crores; or in India or outside India, in aggregate , the assets of the value of more
than two billion US dollars , including at least rupees five hundred crores in
India, or turnover more than six billion US dollars , including at least rupees
fifteen hundred crores in India ;or]

(b) Acquiring of control by a person over an enterprise when such person has already direct
or indirect control over another enterprise engaged in production, distribution or trading of
a similar or identical or substitutable goods or provision of a similar or identical or
substitutable service, if the enterprise over which control has been acquired along with the
enterprise over which the acquired already has direct or indirect control jointly have:

(A) either in India , the assets of the value of more than rupees one thousand crores
or turnover more than rupees three thousand crores; or
(B) in India or outside India , in aggregate , the assets of the value of more than five
hundred million US dollars , including at least rupees five hundred crores in
India, or turnover more than fifteen hundred million US dollars , including at
least rupees fifteen hundred crores in India; or.

( c) The group, to which enterprise whose control has been acquired, or is being acquired,
would belong after the acquisition, jointly have or would jointly have:

A) either in India , the assets of the value of more than rupees four thousand crores
or turnover more than rupees twelve thousand crores ; or

( B) in India or outside , in aggregate , the assets of the value of more than two billion
US dollars, including at least rupees five hundred crores in India ,or turnover more
210
 than six billion US dollars, including at least rupees fifteen hundred crores in India;
any merger or amalgamation in which the enterprise remaining after merger or the
enterprise created as a result of the amalgamation, as the case may be , have:

( i) Either in India, the assets of the value of more than rupees one thousand crores or
turnover more than rupees three thousand crores; or

(ii) In India or outside India , in aggregate , the assets of the value of more than five
hundred millions US dollars , including at least rupees five hundred crores in India,
or turnover more than fifteen hundred million US dollars, including at least rupees
fifteen hundred crores in India;

(d) The group, to which the enterprise remaining after the merger or the enterprise
created as a results of the amalgamation , would belong after the merger or the
amalgamation , as the case may be , have or would have:
(A) Either in India, the assets of the value of more than rupees four thousand crores
or turnover more than rupees twelve thousand crores; or
(B) In India or outside India , in aggregate , the assets of the value of more than two
billion US dollars , including at least rupees five hundred crores in India, or
turnover more than six billion US dollars , including at least rupees fifteen
hundred crores in India; The M&A s that fall below these thresholds are not
considered in the expression combinations and are outside the ambit of the Act.

When Combinations / Mergers are considered as anti competitive practices?

Mergers attract the attentions of the competition policy makers because they generally
have implications for the concentration of, and ability to use market power, which in turn,
can impact negatively upon competition. Market power describes the ability of a business
entity to act unconstrained by rivals and potential rivals in both price and non-price
conduct. A Merger is bad, only if creates a dominant enterprise that subsequently abuses its
dominance. To some extent the issue is analogous to that of agreements among enterprises
and also overlaps with the issues of dominance. The reason that such a provision exits in
most laws is to pre-empt the potential abuse of dominance where it is probable, as
211
subsequent unbundling can be both difficult and socially costly. Thus, the general principle,
in keeping with the overall goal, is that mergers should be challenged only if they reduce or
harm competition and adversely affect welfare. It is worth to note that, the Mergers impact
upon the concentration and use of the market power lead to;

A reduction in the number of business entities operating in a market; and

An increase in the market share controlled by the merged entity.

Thus, the principle for exercising merger control is that, if a merger is likely to give rise to
market power, it is better to prevent this from happening than to control the exercise of
market power after the merger has taken place, i.e. prevention is better than cure. Also, the
social and economic cost of demerging the firms after the merger is also heavy and thus,
not an easy option for the Competition Authorities. Interestingly, the test of size and or the
turnover has been laid down as a guide for the presumption about the illegality of the
combination under section 6(1) of the Competition Act and also for investigation by
Competition Commission of India for exemption under section 6(2) of the Competition
Act. Section 6 of the Competition Act prohibits a person or an enterprise from entering into
a combination which causes or is likely to cause an appreciable adverse effect on
competition within the relevant market in India. Such a combination is void. A
Combination leads to adverse effect only if it creates a dominant enterprise which is likely
to abuse its dominance. The generally accepted proposition is that market dominance need
not necessarily lead to abuse. But when the companies are too big, they can indulge in
abuse and exploit the consumer through market manipulation. Bigness has its own
advantages. Firstly it reduces the cost of production and distribution and secondly, it
permits a larger expenditure on research. For examples in Pharmaceuticals, huge amount
have to be invested. Certain combinations are not void. Provision of section 6 (1) is not
applicable to public financial institutions , foreign institution investor 246, bank or venture

246
Foreign institutional investor is defined under section 115 AD and section 10(23FB) under the Income tax Act,
1961. The section defines foreign institutional investor to mean such investor as the Cen tral Government may,
by notification in the Official Gazette specify in this behalf. ( Foreign Institutional Investor means an institution
established or incorporated outside India which proposes to make investment in India in securities; provided that
a domestic assets management company or domestic portfolio manager who manages funds raised or collected or
212
 capital fund247 entering into combination in pursuance of any covenant of loan or
investment agreement for share subscription or financing facility or any acquisition .
However, such organizations are required to file a return in respect of such an activity with
the commission.

Factor for determining Combinations

After the monetary threshold limits have been crossed by a combination, under section 5(a)
or (b) or (c) , the next test to be applied is to see whether that combination is one which
causes or is likely to cause an appreciable adverse effect on competition within relevant
market in India. It is for the party claiming so to establish that the assailed combination
does not cause an appreciable adverse effect on competition within the relevant market in
India. The Section 6 (1) declares as void a combination that causes or likely to cause an
appreciable adverse effect on competition within the relevant market in India. The
objective of the regulation is the maintenance of competition and preservation of the
competitive structure of the relevant market in India. A combination which adversely
affects or is likely to affect it is void. Thus, in order to assess whether a combination shall
have that effect, it is necessary to determine that---

o the combination has acquired a market power,

o as a result of which the competition is, or likely to be, affected adversely and
appreciably within the relevant market.

Most importantly, there should be causal link between the acquiring of the market power
and a significant detrimental effect on competition. The first step in examining whether a
combination has any adverse effect on competition within the relevant market in India is to

brought from outside India for investment in India on behalf of a sub-account , shall be deemed to be a Foreign
Institutional investor.
247
Section 10(23FB) clause (b) defines the expression venture capital fund to mean such fund;__
i) Operating under a trust deed r egistered under the provision s of the Registration Act,1908 or operating as
a venture capital fund scheme made by the Unit Trust of India established under the Unit Trust of India
Act, 1963 ;
ii) Which has been granted a certificate of registration under the Securities and Exchange Board of India Act ,
1992, and regulations made there under ;
iii) Which fulfils the conditions as may be specified, with the approval of the Central Government , by the
Securities and Exchange Board of India, by notification in the Official Gazette , in this behalf.
213
 define the relevant market 248. The relevant market would be the geographic market 249
or
the market for product or service250. The object of defining a market in both its product and
geographic dimension is to identify those actual competitors of the undertakings involved
that are capable of constraining their behavior and of preventing them from behaving
independently of an effective competitive pressure. It is from this perspective, that the
market definition makes it possible, and also to calculate market shares that would convey
meaningful information regarding market power for the purposes of assessing dominance.
Stating that firms are subject to three main sources of competitive constrained ,viz, demand
substitutability , supply substitutability and potential competition, it continues: basically ,
the exercise of market definition consists in identifying the effective alternative sources o f
supply for the customers of the undertakings involved , both in terms of product /services
and geographic location of suppliers.

Inquiry into Combination by Commission

The issue of whether a combination is likely to cause or has actually caused an ap preciable
adverse effect on competition within relevant market in India is a question of fact to be
determined in each case. This would depend upon a number of factors, the principle ones
being the structure of the market, viz, and the suppliers, their shares of the market, their
relative strengths, and the actual conditions of competition in the relevant market.
Competition authorities generally have the responsibility to intervene when they expect a
merger to have an anti-competitive outcome. Although certain agreements , such as
horizontal price fixing and market allocation , are thought so inherently anti -competitive
that each is illegal per se without inquiry into the harm it has actually caused , other
combinations such as mergers, joint ventures and various vertical agreements, hold the
promise of increasing a firms efficiency and enabling it to compete more effectively and
thus, are judged under a rule of reason i.e., an inquiry into market power and market
structure designed to assess the combination s actual effect. Whereas section 23 of the
MRTP Act 1969, dealt with Concentration of Economic Power which provides for the

248
See section 2(r) of the Act.
249
See section 2(s) of the Act
250
See section 2(t) of the Act.
214
 regulation of Mergers. Under that section what was necessary to be examined, by the
Central Government in considering a proposal for merger and also whether the proposed
merger would lead to a concentration of economic power. The said section also provided
for regulating takeovers of undertakings. Further under section 30A to 30G, was regarding
the acquisition of and transfer of shares above the prescribed threshold levels by
individuals, bodies corporate that formed a group, or were under the same management.
The Central Government s previous approval was necessary for the acquisition or transfer
of shares by the entities. Though reference to the Commission and inquiry by the MRTP
Commission was a pre-requite before any Order can be passed by the Central Government,
it was not obligatory on the part of the Central Government that the recommendations
made by the Commission are accepted. However the entire, chapter contained the above
said sections were omitted in 1991, with the result that mergers and Acquisition of shares
became subject only to the applicable provisions of the Companies Act, 1956. The
Commission, ever since till the repeal does not have statutory powers to investigate into
any anti-competitive combination within India. Interestingly, under the New Competition
Law, the Act provides that the Commission can initiate inquiry upon its knowledge, on
information received or a reference received from the Central Government, State
Government or a statutory authority. The filters available in law before the notification of
merger can be taken up for investigation and enquiry by CCI. The filters are as follows;

a) If the results breaches the statutory thresholds;

b) Prima facie causation of appreciable adverse effect on competition in the relevant
product and geographic market within India.251 Factors relating to ascertaining
appreciable adverse effect on competition has been statutorily provided in the law
thereby, minimizing arbitrariness.252
c) Local nexus or de-minimis thresholds have been provided under the law for overseas
transactions having adverse effect in India .cross- border transaction s which do not

251
Section 2(r ) , (s ), (t) read with section 19 (5) , (6) and (7)
252
Section 20(4)
215
 exceed the statutory de minimis threshold shall be exempted from being inquired
into by the Commission.253
d) Government aided enterprises are not exempted from being scrutinized thereby
ensuring a level-playing field between private and public sector competing enterprises.254

The key to the offence is the determination of whether a combination has caused or is
likely to cause an appreciable adverse effect on competition within India.

Domestic nexus

An acquisition or merger or amalgamation would be governed under the third situation, if it

constitutes a combination by exceeding certain prescribed threshold limits. The limits
determine the trigger for reporting the proposed combination to the commission. The
amendment focuses on the provision of a domestic nexus (a nexus with assets and
operations in India) in connection with the limits applicable to acquisitions in which a
foreign entity and an Indian entity are involved. This would narrow down the scope for an
acquisition being covered under combinations to be regulated by the commission. Thus, if
the acquirer is a foreign company without any Indian presence, the Competition Act trigger
will not apply due to the provision of the India nexus. Incidentally, the original limits
continue to apply under the Competition Act to acquisitions of enterprises dealing in similar
goods, and to mergers and amalgamations. A corresponding amendment in the limits has
not been made for those cases. The rationale for this is not very clear because it would have
been better to restrict the applicability to all cases of combinations. These merger regulation
provisions, in particular, the mandatory notification requirement and the lack of a
domestic nexus criterion for foreign mergers have been sore points for the domestic as well
as international business communities. It has been argued that the mandatory notification
system will require notification of foreign mergers with little or no nexus to India, and add
to the cost of doing business as well as strain the resources of the CCI. The amendment Act
has sought to address this concern by providing for a domestic nexus test. Accordingly, the
thresholds for worldwide turnover or assets have been amended, so that only those

253
Section 5 ---post 2007 amendments to the CA
254
Section 2 (h)read with 2(l)
216
combinations where at least Rs.500 crore of the combined worldwide assets or at least
Rs.1500 crores of combined worldwide turnover of the merging parties is in India, would
come under the purview of the Act. However, this amendment has not been well received in
business and legal circles.

Regulation of Combinations in India

The task of determining the adverse effect of combination as stated above lies with the
Competition Commission of India. The competition Law enumerates certain wrongs which
are considered to be restraints on free competition in India. A combination leads to adverse
effect only if it creates a dominant enterprise which is likely to abuse its dominance. When
the companies are big, they can indulge in abuse and exploit the consumers through market
manipulation. The law holds such combination void. For exemption, a combination is
required to be notified to the Competition commission of India for its approval. As
mentioned above, the regulation of Combination in India is provided under section 6 of the
Act. Under the Act of 2007, it has been made mandatory for the companies to notify before
the Competition Commission of India their scheme of merger. Section 6(2), as amended by
Competition (Amendment) Act 2007 read as: subject to the provision contained in sub section
(1), any person or enterprise, who or which proposes to enter into a combination, shall give notice to the
Commission, in the form as may be specified and the fee which may be determined , by regulations,
disclosing the details of the proposed combination, within thirty days of

a) Approval of the proposal relating to merger or amalgamation, referred to in clause (

c) of section 5 , by the board of directors of the enterprises concerned with such
merger or amalgamation , as the case may be;
b) Execution of any agreement or other document for acquisition referred to in clause
(a) of section 5 or acquisition of control referred to in clause (b) of that section;

Section 6 (2A) says that, No combination shall come into effect until two hundred and ten
days have passed from the day on which the notice has been given to the commission under
sub-section (2) or the Commission has passed orders under section 31 , whichever is earlier.
The changes that have been brought vide the amendment is that___
217
 1. Prior intimation to the Commission, of any combination amongst companies, group
or persons, has been made mandatory. However, such a intimation of such a
combination has to be done if the same triggers the threshold limit as provided under
section 5 of the Companies Act.
2. Once the intimation is received by the Commission, it will do all that necessary and
give its ruling within a maximum period of 210 days. In fact, the time required
would be much less since the limit of 210 days would also take into account a
situation where the Commission orders an enquiry. Where no enquiry is found to be
necessary, the time taken would be less than half of this limit.

The Competition Commission of India has also promulgated a draft of the Competition
Commission (Combination) Regulations which seeks to govern combinations. Further, on
the failure on the part of the Commission to pass its order within the prescribed period of
210 after receiving the proposal, combination is deemed to be approved. Though the Act
makes an mandatory notification but it does not specify any mannerism of such
notification. The proposes notice should be either in Form 1 or Form 2 and the said notice
for the combination should be filed with CCI within 30 days of the date of execution of
any agreement or other document for acquisition of voting rights or acquisition of control.
It is noteworthy that the Act limits the powers of the Commission to look into the
combinations after the expiry of the one year from the date on which such combination has
take effect. The proviso to section 20 of the Act provides Provided that the Commission
shall not initiate any inquiry under this sub-section after the expiry of one year from the
date on which such combination has taken effect 255 . As such:

A) Proviso to section 20(1) has to be interpreted in terms of the thresholds provided

under section 5(a), (b) and (c). The Act does not provide for retrospective operation,
in regard to such combinations which had been entered into prior to the coming into
force of the Act.

255
In other words , an enquiry may be instituted only on the combination comes to the knowledge /informati on of
the Commission within one year of its coming into combination
218
 B) Section 20 provides for enquiry into whether the combination has caused or is likely
to cause appreciable averse effect of combination.

As such , there is an ambiguous situation created by section 20 which may lead to

conflicting judicial interpretations in light of the legislative intent and language of section
20 regarding a combination entered into prior to the coming into effect of the Act, which
may seem to have caused an appreciable adverse effect on competition. If the Commission
does not get to know about the combination within one year, it appears that the
Commission would not be able to look into the same 256. In this context, it remains to be
seen how this provision will be interpreted and implemented by the statutory authorities
and Courts of law. This is particularly so because, prima facie, the escape route if accepted
would result in setting into motion a perverse incentive in favour of defaulters disclosure /
reporting requirement, which threatens to frustrate the law . It should be noted that,
Under the Indian Competition Act, section 20(4) of the Act empowers the Competition
Commission and sets out the factors to taken into consideration in determining whether a
combination would have effect of, or is likely to have an appreciable adverse effect. The
factors contained in this subsection of section 20 contain both positive and negative factors
and the last factor specifically states, whether the benefits of the combination outweighs
the adverse impact of the Combination, if any. This recognizes that a merger can have
adverse effects but it could also have positive gains for the economy such as economies if
scale and increased efficiency. The Section 20(4) of the Competition Act read as: for the
purpose of determining whether a combination would have the effect of or is likely to have an
appreciable adverse effect on competition in the relevant market, the commission shall have due
regard to all or any of the following factors , namely:

(a) actual and potential level of competition through imports in the market;
(b) Extent of barriers to entry into the market;
256
Though the provision has been a statute book for six years, the language of proviso to Section 20(1) does not
provide for such retrospective operation of the threshold s levels under s ection 5. It is settled principle of
interpretation of statute that , the provision s which touch a right in existence at the time of passing of statute are
not to be applied retrospectively in the absence of express enactment or nec essary intendment. Further , unless
clear and unambiguous intention is indicated by the Legislature by adopted suitable express words in that behalf,
no provision of a statute should be given retrospective operation if by such operation vested rights are likely to be
affected.
219
(c) Degree of countervailing power in the market;
(d) Level of combination in the market;
(e) Likelihood that the combination would result in he parties to the combination being
able to significantly and substantially increase prices or profit margins;
(f) Extent of effective competition likely to sustain in a market;
(g) Extent to which substitutes are available or are likely to be available in the market;
(h) Market share , in the relevant market , of the persons or enterprise in a combination,
individually and as a combination;
(i) Likelihood that the combination would result in the removal of a vigorous and
effective competitor or competitors in the market;
(j) Nature and extent of vertical integration in he market;
(k) Possibility of a failing business;
(l) Nature and extent of innovation;
(m) Relative advantage , by way of the contribution to the economic development, by
any combination having or likely to have appreciable adverse effect on competition;
(n) Whether the benefits of the combination outweigh the adverse impact of the
combination , if any

Thus, the competitive effect of the merger rests on the understanding of the competitive
constraints under which the firm operates and one has to analyze by using various
mechanisms whether the merger would results in competitive harm. The ultimate purpose
is to determine whether the merger is likely to create or enhance market power or to
facilitate its exercise. It is to be noted that while undergoing an appraisal of the merger,
only merger sector efficiencies should be considered, i.e. only those efficiencies likely to be
accomplished with the proposed merger and unlikely to be accomplished in the absence of
either the proposed merger or another means having comparable anti-competitive effects.
Hence, as a thumb rule, there should be laid down certain parameters for the Competition
Commission to decide as to whether the merger is against competition. The factors listed in
section 20(4) contain both negative and positive factors and the last factor specifically states
whether the benefits of the combination outweigh the adverse impact of the combination,
if any. This recognizes that a merger can have adverse effects, but it could also have
220
 positive gains for the economy such as economies of scale and increased efficiency. There
is thus a rule of reason approach in inquiring into a combination. Factors similar to those
listed in section 20(4) are considered by competition authorizes in many jurisdictions in
appraising a merger.

Intimation of Combination to Competition Regulatory Authority

There is a mandatory requirement that CCI should be pre-notified about every kind of
combination, which is provided under section 6(2) of the Competition Act 2002. Parties to
the proposed merger, acquisition or combination, as the case may be, must determine as to
whether the proposed transaction triggers the applicable threshold limits as prescribed
under the laws of the countries depending upon the size of the parties or the turnover. In
case wherein the applicable threshold limits are triggered, there ought to be filed before the
applicable competition authorities the scheme of the proposed combination before the
competition commission which would look into the aspect of competitive concerns of the
proposed merger taking into account the merger specific efficiencies and once the
applicable authorities give the permission, the scheme of the merger/combination is to be
carried on.257 Under the aegis of the Competition Act, it was an option left with the Indian
Companies to notify to the CCI if the merger triggers the applicable threshold limits to seek
for approval. Section 6(2) of the un amended Competition Act used the word may instead
of shall. However, there have been necessary changes been carried out under the
Competition Act by the Competition (Amendment) Act 2007. Under the Act, it has been
made mandatory for the companies to notify before the Competition Commission of India
their scheme of merger. Section 6(2) as amended by the Competition (Amendment) Act
2007 says; subject to the provisions contained in sub-section (1) , any person or enterprise
, who or which proposes to enter into combination, shall give notice to the Commission, in
the form as may be specified , and the fee which may be determined , by regulations,
disclosing the details of the proposed combination, within thirty days of:

257
Ibid page 5
221
 a. approval of the proposed relating to merger or amalgamation , referred to in clause (
c) of section 5, by the board of directors of the enterprises concerned with such
merger or amalgamation, as the case may be;
b. execution of any agreement or other document for Accusation referred to in clause
(a) of section 5 or acquiring of control referred to in clause (b) of that section; and

Further, clause (2A) says --- No combination shall come into effect until two hundred and
ten days have passed from the day on which the notice has been given to the Commission
under sub-section (2) or the Commission has passed orders under section 31, whichever is
earlier. Thus CCI has promulgated a draft of the Competition Commission Regulations
which seeks to govern combinations. Under the Competition (Amendment) Act 2007
which received the Presidential assents towards the end of the 2007 brought significant
changes to the Competition Law regime in India. The most noteworthy changes proposed
by the Amendment Act was the introduction of a mandatory notification process for
persons undertaking combinations above prescribed threshold limits. Further introducing
of waiting period of 210 days within which the CCI is required to pass its order with
respect to the notice received, failing which, the proposed combination is deemed to be
approved. The Regulations provides for certain kinds of combination that are excluded
from the ambit of combinations that are likely to have an appreciable impact on
competition in India. The test whether a merger is to be permitted or not should be based,
on the following:

The expected impact of the merger on market power and competition in the relevant
market.
Given the size and growth of the market and the presence or absence of entry
barriers, an assessment of how the market is expected to evolve.
Do the markets of the merging entities overlap? There should be the limited cause
for concern in case they do not, unless one of the firms has market power.
Is the market susceptible to collusive behavior?

In view of this, it is extremely important that the law regarding mergers be very carefully
framed and the provisions regarding prohibition of mergers be used very sparingly. This is
222
particularly important at the current stage of India s corporate development. Relative to the
size of major international companies, Indian firms are still small. With the opening of trade
and Foreign Direct Investment, Indian firms need to go through a period of consolidation in
order to be competitive. Furthermore, Combination s are usually divided into three broad
categories; Horizontal merger, vertical and Conglomerate mergers. It should be
remembered that whatever may the kind of merger, whether Horizontal, Vertical,
Conglomerate or Joint Venture must be tested by the standard of section 6(1) , that is
whether it causes or likely to cause an appreciable adverse effect on competition within
relevant market in India.

Combination: Horizontal merger

Horizontal mergers are between enterprises that are existing or potential competitors, being
at the same level in the supply chain, e.g., two manufactures, two distributors, or two
retailers of the same product. Horizontal effects occur where a merger takes place between
competitors in the same product and geographic markets and at the same level of the
production or distribution cycle. As a general proposition horizontal mergers present greater
danger to competition than vertical ones, in the same way that horizontal agreement s are
treated more strictly than vertical agreements; horizontal mergers may be scrutinized both
for their unilateral effects and for their coordinated effects , concepts that are not free from
difficulty. Competition authorities are most concerned with horizontal mergers since it has
the potential of reducing competition where as vertical merger may not have the potential
for reducing competition. A merger may lead to a monopoly (in an extreme case) or
otherwise create an enterprise with substantial or substantially increased market power. The
enterprise can then overcharge or otherwise unilaterally abuse its dominant position or a
merger may decrease the number of competing enterprise and make it easier for the
remaining enterprises to coordinate their behavior in terms of price, quantity, or quality i.e.,
a cartel type arrangement.

223
Combination: Vertical merger

Vertical merger occurs between firms that operate at different levels of the market; a firm
may acquire control of another firm further up or further down the distribution chain; the
former is known as backward integration and the latter as forward integration. In other
words vertical mergers are those between firms that operate at different but complementary
levels in the chain of production or distribution of the same final product. In a vertical
merger, pre-transaction, the firms are located at different stages of production or
distribution, with one producing an input used by the other. Post merger, the result is
vertical integration and a single firm now performs both stages of production. Vertical
mergers can potentially generate substantial efficiencies and should rarely be a cause
concern. However, in some cases, vertical mergers may give rise to competition issues. The
vertically integrated merged entity may be able to constrain the ability of rivals to compete
by excluding them from the market or by raising their cost; where such actions harm
consumer welfare, they are anti-competitive. A vertical merger can result in an increase in
market power because of either a unilateral or a co-ordinate effect. The Raghavan
258
Committee s report explains vertical merger s affecting competition thus: There could,
however, be some specific objections to vertical integration, for example;

Fear of foreclosure: It is supposed that, through vertical integration, a firm can create
captive distribution channels. This will foreclose the rival firms from the market,
represented by the captive distribution network. This may be a problem, if it
threatens competition in general.
Entry blocking: monopolies can have the ability to prevent the entry of firms into the
market. Sometimes it is claimed that even competitors can come together to prevent
a potential entrant. This is sometimes referred to as collective foreclosure. If through
integration, firms are able to internalize different levels of production; artificial
barriers to entry could be created. This implies that because of the size of the
incumbent, a potential entrant s capital requirement will be high.

258 nd
See competition Law and Practice , by D.P .Mittal ,2 edition p. 314,published by Taxxmann Allied Services (p)
Ltd,
224
 Prize squeezes: vertical mergers and integration internalize the process of production
and enable a firm to perhaps reduce costs. This will result in reduction in output
prices, which is usually interpreted as a prize squeezes. The law should question only
those monopolies resulting from vertical mergers (integration) that lead to output
restriction rather than preventing vertical integration.

Combination: Conglomerate mergers

Conglomerate mergers are between enterprises which have neither horizontal nor vertical
relationship e.g. between enterprises manufacturing or distributing different products. In
other word, it is a form of diversification into a totally unrelated field like a merger between
a car manufacturer and a textile firm. The structure of competition i n the relevant market
does not ostensibly change. It gives the additional financial strength to the parties
concerned. A considerable increase in the financial strength of the combined enterprise
could provide for a wider scope of action and leverage vis--vis competitors or potential
competitors of both the acquired and the acquiring enterprise and specially if one or both
are in a dominant position of the market power, enabling it to restoring to predatory
pricing, raising entry barriers, and eliminating potential competition. Though conglomerate
mergers do not result in an increase of market power, they are objected on many grounds,
such as follows (as pointed out by Raghavan Committee Report):

They create deep pocket which enables firms to devastate the rivals;
Lower costs below the marginal cost of the industry;
Raise barriers to entry;
Engage in reciprocal dealing to the disadvantage of the rivals;
Eliminate potential competition.

The objection above mentioned are not of serious nature. The law condemns merger only
when they produce anti-competitive effects. Only the last may have that effect, which is
really a horizontal rather than the conglomerate aspect of the merger. Elimination of a
potential competitor would result in affecting competition adversely as the position of that

225
 competitor on the edge of the market exerted a beneficial influence on the market s
competitive conditions.

Joint Ventures and mergers

India is witnessing a significant increase of joint ventures, especially in dynamic secto rs

where innovation costs and, or competitions are on the rise. One such sector is Information
Technology. A Joint venture represents a combination of subsets of assets contributed by
two (or more) business entities for a specific business purposes and a limited duration. A
joint venture is not defined in the Act. There are many ways in which joint ventures could
be defined for competition policy purposes. In the Harvard Law Review, Bradley (1982)
listed the following conditions that integrate the operations between two or more separate
firms in a joint venture:

(a) The enterprise is under joint control of the parent firms , which are not under related
control;
(b) Each parent makes a substantial contribution to the joint enterprises;
(c) The enterprise exists as a business entity separate from its parent s ; and
(d) The joint venture creates significant new enterprises capability in terms of the new
productive capacity, new technology, a new product, or entry into a new market.

In other words, in Joint ventures two or more business join together under a contractual
agreement to conduct a specific business enterprise with both parties sharing profits and
losses. The venture is for one specific project only, rather than for a continuing business
relationship as in a strategic alliance259. A Joint venture participant continues to exist as
separate firms with a joint venture representing a newly created business enterprises. When
two companies form a third to engage in a new enterprise, a joint venture is formed. The
joint ventures can be organized as Partnership Corporation or any other form of business
organization, the participating firms choose to select. The main motive of Joint venture is

259
Strategic Alliance, -- a partnership with another business in which you combine efforts in a business effort
involving anything from getting a better prices for goods by buying in bulk together , to seeking business together
,with each of you providing part of the product . The basic idea behind alliance is to minimize risk while maximizing
leverage.
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to share risks. The Joint ventures are frequently found in traditional sectors such as natural
gas, mining, and bidding in on oil contracts and in drilling oil wells, large real estate
ventures, in movies, plays and in Television productions. In foreign direct investment,
India has a policy requiring the involvement of local partners. This has resulted in the
establishment of joint ventures designed to tap local market expertise, thus facilitating
foreign direct investment. Joint ventures can have anti and pro -competitive effects. Pro
competitive effects may be seen in activities relating to large scale natural resource
exploration, large scale engineering and construction projects and research and
development. Anti competitive effects may arise from easier information exchange and
from anti-competitive agreements entered into by the parent entities. Some important anti-
competitive effects of joint ventures are;

a) Elimination or reduction of competition between the parents of the joint ventures

b) Reduction of competition from a parent of the joint venture ( where a parent would
have competed independently but for the joint venture)
c) Anti competitive market foreclosure because of the vertical relationship between the
joint venture and the parents denying potential competitors access to essential inputs.

Joint ventures warrant competition analysis. To hold joint venture unlawful, the same
considerations apply as to other combinations. The rule of reason approach is available to
the CCI for analyzing the pro-competitive efficiencies and anti-competitive effects of joint
venture arrangements. The test is its effect. The test of whether a joint venture might cause
an appreciable adverse effect on competition within the relevant market, is not only
whether both parent companies would probably have entered the market or whether one
would probably have entered alone, but also whether the joint venture eliminate the
potential competition of the company that might have stayed at the edge of the market,
threatened to enter. The actual adverse effect need not be proved; only reasonable
likelihood of that effect is sufficed. Joint ventures stand half way between horizontal
agreements and outright mergers. In joint ventures, the operation of the parent firms is
partially integrated but not fully. Enterprises may structure joint ventures, which in reality
could be mergers or combinations. The procedures and substantive tests applicable to

227
mergers could and do differ significantly from those applicable to joint ventures not
qualifying as mergers. Because of this parents may structure joint ventures in such a way
that they do not attract merger regulation s. The tendency therefore, will be for the parents
to found a joint venture conducive to reaping efficiencies. The usual test in merger control
is to examine whether a dominant position is created or strengthened. In the case of a joint
venture, the test will be to examine if there is prevention, restriction or distortion of
competition. Efficiency is generally pleaded more often in the case of joint ventures rather
than in the case of mergers. The CCI would do well to focus more on analysis the
economic effects of joint ventures and keep in mind that real efficiency gains are given
adequate consideration and weight in the interest of the economic welfare and consumer
welfare. It is worth observing that, joint venture s, a scan of statutes of different countries
indicates escape valves or loopholes, galore. But, if the establishment of a joint venture
leads to efficiencies, to reduce costs through joint production and to reduce marketing costs
through joint sale without limiting competition, it is likely to be regarded as a legitimate
activity. In that event, the joint venture is not an escape valve. Otherwise it is.

The Local nexus

The Competition Act provides for a local nexus, i.e., it makes it mandatory for any
combination which is having potential to cause any adverse effect on the Indian market
irrespective of the fact that whether the enterprise s involved in the combination are non-
Indian entities, to be notified to CCI. Therefore, even if the combination is proposed outside
India and is completed and approved outside India it has to be notified to the CCI, provided
it should be capable of causing any affect on the relevant Indian market. If the quantitative
jurisdiction criteria based on the size of the enterprises is fulfilled than notwithstanding
whether the principal business of the enterprises is carried outside India, it has to be notified
and approved by the CCI. The international combinations may have effect in India if the
enterprises involved have subsidiaries in India. For example; A French company acquiring
an Brazilian company and if both the companies have their subsidiaries in India having
assets above the threshold limit an such a acquisition is expected to have certain adverse
effect on the relevant Indian market, than a merger that is between two-non-Indian

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companies proposed in a foreign nation and approved by the law s of those nations is
mandatory required to be reported to the CCI. The rationale behind the introduction of the
local nexus system can be inferred from the Commentary of the UN Model Law on
competition: Merger s, takeovers or other acquisition of control involving transnational
corporations should be subjected to some kind of scrutiny in all countries where the
corporation operators, since such acquisition of control, irrespective of whether they take
place solely within the country or abroad, might have direct or indirect effects on the
operations of the other unit of economic activities.260 . Many analysts believe that the
thresholds for filing mergers are too low. This can be troublesome in the sense that mergers
in capital intensive industries such as oil and gas would have inconsequential mergers
reviewed. Although a new draft of regulations for the CCI states that a decision must be
reached within 30 days of notification (or 60 days depending on the type of form used for
notification), the review process can still take up to 210 days. In addition, companies that
pass the asset threshold must notify the CCI within 30 days. In the U.S. and European
Union, there are no such notification deadlines. Furthermore, the FTC often provides early
termination requests that lead to an expedited process for filings that are not suspect. The
Competition Act, on the other hand, requires all companies to wait for the CCIs decision.
Another provision in the Competition Act requires an Indian company seeking to acquire a
foreign company that has no presence in India, to seek the CCIs approval. This will have
an impact on the current boom in foreign acquisitions by Indian companies. Moreover,
foreign companies owning a certain size of assets and not generating sales in India must
comply with the notice period requirement as well. This may have an effect on the level of
foreign investment in India especially for companies that own manufacturing facilities but
do not generate sales in India. The Competition Act also allows for third parties to object to
any merger being reviewed by the CCI. In a country that has a civil administration as large
as the one in India, there is a significant risk for redundancy and high preparation costs.

260
See paragraph 104, Commentary on UN Model Law on Competition.
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 Conflicts between competition law and other Indian laws and regulations

The proposed notification of the provision regarding combinations under the Competition
Act has the effect of brining in certain conflict with other Indian laws and regulations,
especially the Companies Act, 1956 and the SEBI takeover regulations. The possible areas
of conflict between the above mentioned laws are discussed hereunder;

Competition Act and merger / amalgamation under Companies Act, 1956

When we use the term merger, we are referring to the merging of two companies where
one new company will continue to exist. Over a last few decades the merger s have been
growing at an ever increasing pace. Mergers, amalgamation are not limited one particular
type of business. The list of past and anticipated mergers covers every size and variety of
business____ mergers are on the increase over the whole marketplace. Because of the wide
price fluctuations that are likely to be associated with mergers activity, public policy has
been concerned that investors be treated fairly. The aim is prompt and full disclosure of
relevant information in the effort to achieve a fair playing filed for all participants.
Apart from Competition Act, mergers Amalgamations, acquisitions are also governed by
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Companies Act. The Companies Act uses the expression arrangement which would
include a merger. The Act does not prescribe what mergers would be approved and what
merger would not be approved. The Arrangement could be of any kind: a reverse merger,
where a financially strong company mergers with a financially weak or actually a sick
company; a holding company may merge with its subsidiary; a demerger, which occurs
when a unit of a company is hived off to another company, which may be in existence or
formed for this purpose; the merging companies need not to have the same or identical
business activities. The merger may have tax avoidance as its objective but not tax evasion.
Under the Companies Act, 1956, mergers and amalgamations are governed under Chapter
VI. Section 391 -394 of the Companies Act deals with mergers and amalgamation. Section
391 of the Companies Act 1956 makes it mandatory for a scheme of arrangement and

261
According to Section 390 (b) ----- the expression arrangement includes a reorganization of the share capital of
the company by the consolidation of shares of different classes, or by the division of shares into s hares of different
classes or, by both those methods.
230
 Compromise to be approved by the Tribunal262. Section 391(1) says Where a compromise
or arrangement is proposed---

a) between a company and its creditors or any class of them; or

b) between a company and its members or any class of them;

the tribunal may, on the application of the Company or of any creditor or member of the
company, or in the case of a company which is being wound-up, of the liquidator, order a
meeting of the creditors or class of creditor, or of the members or class of members, as the
case may be, to be called, held and conducted in such manner as the court directs. Well it
should be noted that, no order sanctioning any compromise or arrangement shall be made
by the Tribunal unless the Tribunal is satisfied that the company or any other person by
whom an application has been made under sub-section (1) has disclosed to the Tribunal by
affidavit, or otherwise, all material facts relating to the company, such as the latest
financial position of the company , the latest auditors report on the accounts of the
company , or any pendency of investigation proceedings in relation to the company.
Thus, it becomes evident from the above mentioned section that a scheme of arrangement
and compromise has to be approved from the Tribunal .unless the Tribunal approves the
scheme cannot take effect. 263 Furthermore, section 394 (1) (a) of the Companies Act 1956
provides that the scheme of arrangement and compromise is done for two purposes:

For internal reconstruction of any Company and;

For amalgamation of two or more companies.

Therefore, section 391(1) (a) read with section 394(1) provides that scheme of any kind of
merger or amalgamation has to be approved and sanctioned by the Tribunal. The Tribunal
has also been given the power to supervise264 and modify such scheme265. If the Tribunal is

262
Substituted for company Law Board by the Companies (Second Amendment) Act 2002, earlier the quoted
words were substituted for High Court by the Companies (Amendment)Act ,1988,w.e.f 31 -5-1991 and High
Court was substituted for Tribunal by the Companies Tribunal ( Abolition )Act 1967 w .e. f 1 -7-1967.
263
See section 391(2) of the Companies (Amendment) ,Act 2002.
264
Section 392(1) (a) of the Companies Act, says the Tribunal shall have the power to supervise the carrying out of
the compromise or an arrangement.
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 satisfied that a compromise or an arrangement sanction under section 391 cannot be
worked satisfactorily with or without modifications, it may, either on its own motion or on
the application of any person interested in the affairs of the company, make an order
winding up the company, and such an order shall be deemed to be an order made under
the Act. the Tribunal shall give notice of every application made to it under section 391 or
394 to the Central Government, and shall take into consideration the representation s , if
any , made to it by Government , before passing any order under any of these sections.
Before the Tribunal sanctions a scheme, the Tribunal must be satisfied that the scheme not
only reflects the will of majority of creditors or class of them but it must considered all
aspects of the matters so as to arrive at a finding that the scheme is fair , must and
reasonable and does not contravene public policy or statutory provision. 266 . Further if the
Tribunal finds that the scheme of amalgamation is beneficial to the members of both the
companies and the affairs of the company which is going to be dissolved and the transferor
company, have not been conducted in ant manner prejudicial to the interest of its
members or to public interest, Tribunal shall not dwell upon or interfere with the collective
wisdom of the shareholders of the companies267.

The Companies Act as it stands does not deal with issues of the effect on competition of the
merger. A merger of two more companies, whether they are covered by the Competition
Act or not, will still have to be approved by the High Court, as required under the
Companies Act. The evaluation of the effect of a proposed merger on competition is an
additional process that companies falling under the definition of section 5 of the
Competition Act will have to go through. Even sections 23 and 24 of the MRTP Act , now
omitted , only required that what was necessary to be examined was that the proposed
scheme of merger or takeover was not likely to lead to the concentration of economic
power to the common detriment, or was not likely to be prejudicial to the public interest in
any other manner. The power to approve a merger under section 23 of the MRTP Act

265
The Tribunal at the time of making order or at any time ther eafter give such directions in regard to any matter
or make such modifications in the compromise or arrangement as it may consider necessary for the proper
working of the compromise or arrangement.
266
Administration of the Specified Undertaking of the Unit Trust of India vs Garware polyster Ltd.[ 2005] 60 SCI
.512 (SC)
267
See Shankarnarayana Hotel (P) Ltd vs. Official Liquidator (1992) 74 COMP CAS 290 (Kar)
232
 rested with the Central Government. Under that Act also, the effect of a merger or takeover
on competition did not have to be examined in approving the proposal. The Tribunal of the
Competent jurisdiction has to approve a scheme of merger and amalgamation which
generally takes period of 4-5 months (120-to150 days approximately). On the other hand
the CCI has turnover period of 210 days which can be further extended under certain
situation. Therefore, the CCI can legally take a time period of 210 to approve a merger or
amalgamation. This poses a practical difficulty in the regime of merger and amalgamation.
Firstly the approval period under the Competition Act slows down the merger and
amalgamation process and thus creates hurdles for ticket mergers and amalgamations.
Secondly , the Companies Act empowers the Tribunal and Competition Act empowers the
Competition Commission of India to approve modify and sanction a scheme of merger and
amalgamation and modifications made by any one of the regulators ( Tribunal and CCI)
would lead the decision of the other invaluable. Also if the Tribunal approves or sanctions
the scheme and CCI rejects it or vice versa than a difficulty would arise whose decision
should be given priority. If the decision of Tribunal is given priority than the decision of
CCI would become infructuous and also the other way round. Furthermore, on one hand,
the Tribunal has the power to modify the scheme of arrangement and compromise under
section 394(2) of the Companies Act 1956, and on the other hand, CCI also has the power
to issue modification under section 31(3) of the Competition Act 2002 268. Therefore, if the
modification ordered by the Tribunal are such a nature that they render the compliance of
the modifications ordered by the CCI impossible then it would again lead to a problem as
the parties to such amalgamations and mergers are bound to follow the modifications
ordered by the Tribunal and also by the CCI to ensure the legality of such combination.

The Indian Income Tax Act (ITA), 1961

Merger has not been defined under the ITA but has been covered under the term
'amalgamation' as defined in section 2(1B) of the Act. To encourage restructuring, merger

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Section 31(3) says, Where the Commission is of the opinion that the combination has or is likely to have, an
appreciable adverse effect on competition but such adverse effec t can be eliminated by suitable modification to
such combination, it may propose appropriate modification to the combination, to the parties to such
combination.
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and demerger has been given a special treatment in the Income-tax Act since the beginning.
The Finance Act, 1999 clarified many issues relating to Business Reorganizations thereby
facilitating and making business restructuring tax neutral. As per Finance Minister this has
been done to accelerate internal liberalization. Certain provisions applicable to
mergers/demergers are as under: Definition of Amalgamation/Merger Section 2(1B).
Amalgamation means merger of either one or more companies with another company or
merger of two or more companies to form one company in such a manner that:

1. All the properties and liabilities of the Transferor Company /companies become the
properties and liabilities of Transferee Company.
2. Shareholders holding not less than 75% of the value of shares in the transferor
company (other than shares which are held by, or by a nominee for, the transferee
company or its subsidiaries) become shareholders of the transferee company.

The following provisions would be applicable to merger only if the conditions laid down in
section 2(1B) relating to merger are fulfilled:

Taxability in the hands of Transferee Company: Section 47(vi) & section 47 (a) The transfer
of shares by the shareholders of the transferor company in lieu of shares of the transferee
company on merger is not regarded as transfer and hence gains arising from the same are
not chargeable to tax in the hands of the shareholders of the transferee company.
[Section 47(vii)]
(b) In case of merger: cost of acquisition of shares of the transferee company, which were
acquired in pursuant to merger will be the cost incurred for acquiring the shares of the
transferor company. [Section 49(2)]

Competition Act and SEBI

The Securities and Exchange Board of India (Substantial Acquisition of Shares and
Takeovers) Regulations, 1997 is the principal law governing acquisitions and takeovers in
India. Under SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, for
listed companies, the acquisition by control, shares or voting right or all of them, the

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 acquisition may be without control by buying shares and voting rights etc. The
acquisition may be through market or off market trade by way of negotiations, deals and
understanding. The SEBI (Substantial Acquisition of Shares and Takeovers ) Regulations
1997 was amendment in 2005 do not require any examination of a proposal for acquisition
or takeover covered by those regulation for the effect of the proposal on competition in the
business of the enterprises involved in the transaction. The objective of the legislation
(SEBI) is only to ensure that the acquisition of shares or voting rights in or control of a
target company is done on an open manner, equitable to the shareholders and the public
investors.

Regulation 10, 11 and 12, the key provisions, impose an obligation on those who may
acquire shares , voting rights, control of a target company , in the manner and to the extent
set out therein, to make a public announcement to acquire shares in accordance with the
regulations. Whereas the Competition Act aims to protect the Consumers in general,
which includes along with the investors and shareholders as intended to be protected by
SEBI and Companies Act respectively. The provision of the competition Act regarding the
time frame of approval will result in extra financial burden on the acquirer. Under the
takeover code the acquirer is bound to pay the shareholders their due within 15 days of
closure of offer. Regulation 22 (12) of the takeover code269 says that; the acquirer shall,
within a period of fifteen days from the date of the closure of offer, completes all procedures rela ting to
the offer including payment of consideration to the shareholders who have accepted the offer and for the
purpose open a special account as provided under regulation 29.

The code under the head of general obligations of the acquirer makes it mandatory for the
acquirer to fulfill all the formalities including the payment of consideration to the
shareholders within 15 days from the closure of offer. However, the provision also provides
for the extension of time to the acquirer under certain conditions. The proviso clearly lays
down the condition on which an extension could be granted to the acquirer. SEBI on its
satisfaction that the applicants for statutory approvals were diligently pursued by the
acquirer and that no neglect or default on the part of the acquirer led to non receipt of
269
Regulation 22(12)of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers )
Regulation 1997
235
 required statutory approval may grant him an extension time subject to the fact that the
acquirer is agreeing to pay interest to the shareholders. Furthermore, the Competition Act
requires that all the acquisitions shall be notified to CCI as soon as any agreement or any
other document for the said acquisition is executed 270 . The Act further provides a
turnaround time of 210 days to approve or reject application of an acquisition. Thus,
legally, the Commission is entitled to use the complete 210 days to issue an order. This
would invariably put the acquirer under the obligation to pay interest to the shareholders if
both legislation are triggered simultaneously. The situation can be better understood with
the help of the following illustration. Lets us consider that a Corporation A is acquiring
the Corporation B. The assets or turnover of the enterprise involved in such acquisition is
above the threshold limit as mentioned in section 5 of the Competition Act 2002, which
would make it mandatory to be notified to the CCI for approval. Considering that
acquisition is done through agreement for acquisition than the CCI has to be notified on
the day of execution of such agreement. If the entire process of acquisition from public
announcement to open offer and closure of offer is completed before 210 days, say , in
about 100 days, then , as per the takeover code, the acquirer is bound to fulfill his
obligations including payment of considerations to the shareholders within 15 days , i.e. by
the 115 day. After that he could be given extension by the SEBI Board to fulfill his
obligation if he agrees to pay the interest to the shareholders. In such a scenario if CCI
takes the allotted 210 days to pass an order then the acquirer would be obliged to pay
interest to the shareholders for a period of 95 days. It would lead to significant increase in
the cost of the acquisition and could be a deterrent factor for the Corporation from
undertaking such acquisition. The CCI has provided in its draft regulation that it would
form an opinion whether any combination is anti-competitive or not within 30 days (if the
notice is filed in longer Form 1) or 60 days (if the notice is filed in shorter Form 2).
Although it would be a welcome change but it still has its own lacunas. In case of the 210
days turnover time it is provided that the combination will be deemed to be approved if the
CCI fails to pass on order within the stipulated 210 days but there is no deemed approval
where the CCI fails to form a prima facie opinion within 30 or 60 days. Therefore, in

270
See section 692) (b) of the competition Act 2002
236
 practice, the CCI will take longer as there is no sanction to tie it the time limit. In addition
to increasing the above mentioned financial burden, the turn around time period of 210
days and also create a lot of uncertainties. The uncertainties are created because the M&A
s are left pending for a period of 210 days , this results in a very destabilizing effect on the
business of the parties involved. Some of these uncertainties can result in serious
implications such as; (a) Change in the price of the Combination due to fluctuations in the
market, (b) Delay in the plans of expansion (c) Inability to make strategic and operational
decisions; strategic and operational decisions could remain in a limbo (d) it could also
lower down the market value of both the parties. Further, the draft regulation s provides
that the CCI can exempt certain acquisition from its review as not causing or likely to cause
an adverse effect on the Indian market. Regulation 11(1) of the takeover code271 says;

No acquirer who, together with persons acting in concert with him, has acquired in accordance
with the provisions of law, 15 per cent or more but less than 75 percent of the shares or voting rights in
a company, shall acquire ,either by himself or through or with persons acting in concert with him,
additional shares or voting rights entitling him to exercise more than 5% of the voting rights , in any
financial year ended 31st March, unless such acquirer makes a public announcement to acquire shares
in accordance with the Regulations.

The above regulation is exempted by the CCI from its review whereas under the takeover
code acquirer is bound to make public disclosure for such acquisition. Thus it can rightly be
understood that, in Companies Act and SEBI Act though both are mutually exclusive yet
aim to protect the interests of private individuals. Whereas, in the Competition Act, the
impact of combinations directly affects the market and the players in the market including
the consumers. We may, therefore, safely say that apart from the fact that all these
legislations are mutually exclusive, the Companies Act and the SEBI Act are the sub-sets of
Competition Act in so far as legal scrutiny of mergers are concerned.

271
As per SEBI (Amendment ) 2002 A

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Conclusion

Mergers and acquisitions are strategic decisions taken for maximization of a company's
growth by enhancing its production and marketing operations. They are being used in a
wide array of fields such as information technology, telecommunications, and business
process outsourcing as well as in traditional businesses in order to gain strength, expand the
customer base, cut competition or enter into a new market or product segment. Merger
control is one of the foundation corner on which a healthy economy can develop, while
allowing and developing growth and competitiveness in the market by removing the
unchecked inorganic growth that could affect the economic strength among a leading
players. Merger control should be brought in to force keeping in mind commercial
consideration of the parties, the cost involved and the interest of the economy.

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