30/04/2023
KEY FEATURES OF COMPETITION ACT (AMENDMENT) 2023.
• Mergers and acquisitions exceeding ₹2000 crores in value must be notified: If the value of any merger or acquisition exceeds Rs. 2,000 crores ($250 million), it would require CCI approval, provided that the party which is being acquired or amalgamated has “substantial business operations in India,” which will be defined by CCI. Earlier, combinations needed to be notified to the CCI only if the parties involved had assets or turnover exceeding a certain threshold; the value of the deal was not considered.
• Reduction in the time limit for assessment of combinations: The Bill reduces the overall time CCI has to approve merger and acquisition requests as well as the time companies have to respond to objections made by CCI. CCI needs to form its initial (prima facie) opinion in 30 days or else the combination is deemed to have been approved. The overall time limit for the assessment of combinations will be reduced to a period of 150 days from 210 days.
• Objections to combinations by CCI and proposal of modifications: If CCI thinks that a combination is likely to harm competition, it will state the objections to the parties identifying the appreciable adverse effect on competition, and then, direct the parties to explain why such a combination should be allowed to take effect. If the parties believe that the competition issues can be eliminated by suitable modifications, they may submit an offer of appropriate modifications. If the CCI finds the proposed modifications satisfactory, it may approve the combination. If not, the combination will not be allowed, or CCI can propose a scheme to be implemented by the parties to address the concerns.
Broadening the scope of anti-competitive agreements (Section 3 of the Competition Act, 2000)
• Covering hub-and-spoke cartels: Entities who are not engaged in identical or similar trade, shall also be presumed to be part of an anti-competitive agreement under Section 3(3) if they participate or intend to participate in the furtherance of such agreement. This covers parties who facilitate anti-competitive horizontal agreements, even if they are not part of the agreement. This is presumably to cover hub-and-spoke cartels—where individuals or organizations that don’t directly participate in the production or supply of goods or services, such as trade associations and consultants—facilitate collusion by acting as intermediaries.
• Covering sellers: The phrase “exclusive supply agreement” has been replaced with “exclusive dealing agreement” to cover the selling side, and not just purchasing side when looking at exclusive agreements.
• Covering sales of goods and services: Anticompetitive conduct like “tie-in arrangement,” “refusal to deal,” “resale price maintenance,” and “exclusive distribution agreement” have all been redefined to cover goods and services, and not just goods.
• Covering indirection restrictions: The “resale price maintenance” definition has been redefined to cover “any direct or indirect restriction”, not just an agreement.
• Modification to AAEC factors: Under the factors used by CCI to determine whether an agreement has an appreciable adverse effect on competition (AAEC), the Bill modifies two factors to widen the scope:
o “foreclosure of competition by hindering entry into the market” to “foreclosure of competition”
o “accrual of benefits” to “accrual of benefits or harm”
Changes to penalties
• Penalty based on income or global turnover: The Bill empowers CCI to pass orders in relation to anti-competitive agreements and the abuse of dominant position, by imposing a penalty that can be up to 10% of the average income or turnover for the last three preceding financial years. Additionally, the turnover will be the global turnover and not just the turnover in India.
• Increase in penalty for combination misrepresentation: In case any party makes a false statement or omits material information when seeking approval for a combination, a penalty of up to ₹5 crores can be imposed by CCI, which is higher than the earlier upper limit of ₹1 crore.
• Liability of company and people in charge: There is a liability for both the company and the people in charge, unless the contravention was committed without the person’s knowledge or if the person had exercised all due diligence to prevent the commission of such contravention.
• Power to impose a lesser penalty: There are more criteria under which a lesser penalty may or may not be imposed by CCI. For example, there will be a lesser penalty for parties in an ongoing cartel investigation if they disclose information regarding other cartels.
• Recovery of legal cost: CCI can recover the legal costs or other losses in addition to penalties, which shall be credited to the Consolidated Fund of India.
Introduction of a new settlements framework and changes to how appeals work
• Settlements and Commitments Framework: If entities are found to engage in anticompetitive agreements or abuse of dominance, they can propose a settlement for the alleged contraventions at any time after the Director General presents their report and before the CCI passes an antitrust order. Entities can also propose commitments in respect of the alleged contraventions at any time after a prima facie order is passed by the CCI and before the Director General presents their report. CCI can accept or reject the proposed settlement or commitments. This new framework is expected to provide an incentive for companies to settle with CCI rather than go to court.
• Deposit before filing an appeal: The appellate tribunal will not entertain an appeal from any company unless the company deposits 25 percent of the amount of penalty imposed by CCI. This additional requirement is expected to prompt companies to scrutinize their decision to appeal.
