Competition Act, 2002

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COMPETITION ACT, 2002 - OBJECTIVES

An Act to provide (keeping in view of the economic development of the country) for
the establishment of a Commission (CCI) -

1. to prevent practices having adverse effect on competition, and

2. to promote and sustain competition in markets, and

3. to protect the interests of consumers, and

4. to ensure freedom of trade carried on by other participants in markets in India,

and

5. for matters connected therewith or incidental thereto. [June 2007 exams]

Historical Concepts of - monopoly, duopoly and oligopoly.

CS Deepak Gajrani F.C.S., LL.B.

(The Academician)
 JMD 1 Competition Act, 2002

OLD AND NEW - (Stuck together with glue)

---*---

FOUR OBJECTIVES OF COMPETITION ACT, 2002

To prevent the To prohibit the To prohibit To Control the

concentration of economic agreements having abuse of Mega size
power in the hands of few appreciable adverse dominant combinations
persons, to the common effect on position
(including
detriment (injury) of competition in India
amalgamations
society.
and takeovers)
(Sec. 3) (Sec. 4)
(Sec. 5)

Division of Serverance Prior approval

Dominant of inter - Few agreements Few agreements of C.C.I.
undertaking connected are deemed to are required to be
UT(s) have Appreciable proved to have (sec. 6)
adverse effect on Appreciable
competition in adverse effect on
India. (E.G. Price competition in
cartel) India. (E.G. Tie up
sales).
Sec. 3(3) Sec. 3(4)

---*---

CS Deepak Gajrani (The Academician)

 JMD 2 Competition Act, 2002

Definition of competition - [June 06, 11 exams]

The competition can be defined as a situation in the market in which manufacturers or sellers
independently fight for selling their goods or services to the buyers, to achieve a particular
business objective (for example – profits, sales or market share.)

Competition can also be defined as a process of economic rivalry between market players to
attract customers. These market players can be multinational or domestic companies, wholesalers,
retailers or even the neighbourhood shopkeeper.

In order to gain lead ahead of rival enterprises, market players either – (a) adopt fair means
(producing quality goods, being cost efficient, adopting appropriate technologies, etc.), or (b)
indulge in unfair measures (carrying out restrictive business practices- such as predatory pricing
exclusive dealing, collusion, cartelization, abuse of dominant position etc.

However, in the interest of consumers and the economy as a whole, it is necessary to promote an
environment that facilities fair competitive outcomes in the market, curb anti-competitive behavior
and discourage market players from adopting unfair measures.

---*---

Authorities in MRTP Act, 1969 and Competition Act

MRTP Act, 1969 Competition Act, 2002

C.G. [MoC] C.G. [MoC]

MRTPC C.C.I.

D.G. (I.R.) D.G.

NOTE - DG is helping hand of CCI in investigating into the subject matters of complaints
received by CCI. DG investigates and reports to CCI.

---*---

CS Deepak Gajrani (The Academician)

JMD 3

Difference Between MRTP Act, 1969 and Competition Act, 2002

MRTP ACT, 1969 COMPETITION ACT, 2002

Based on size theory. Based on “Behaviour theory”.

No definition of consumer. The definition of New definition of consumer WIDER THAN
consumer is taken from CPA, 1986. definition of consumer in CPA, 1986.
No definition of person. The definition of New definition of person MORE ELABORATE
person is taken from CPA, 1986. THAN the definition of person in CPA, 1986.
The definition of GOODS includes the shares The definition of GOODS includes the shares
and stock before allotment as well as after and stock only after their allotment. (Same
the allotment. as CPA)

Sec. 36A deals with concept of UTP. Concept of UTP is abolished.

Sec. 33 contains a list of 14 RTPs which Sec. 3(3) contains a list of 4 RTPs which are
are DEEMED to be restrictive by nature. deemed to be restrictive by nature. [Burden
[Burden of proof is on the defendant to of proof is on the defendant to prove that his
prove that his trade practice is not trade practice is not having adverse effect on
restricting the competition]. the competition].
Sec. 3(4) contains a list of 5 RTPs which are
NOT deemed to be restrictive by nature.
[Burden of proof is on the complainant to
prove that trade practice of defendant is
having adverse effect on the competition].
Sec. 4 contains a list of 5 RTPs which are
deemed to be restrictive by nature. [Burden
of proof is on the defendant to prove that his
trade practice is not having adverse effect on
the competition].
Sec. 35 provides for compulsory registration Concept of registration is abolished.
of every agreement, containing one or
more RTPs u/s 33(1), with DG(IR) within
max. 60 days of signing of such agreement.
If any agreement contains any “RTP If any agreement contains any “RTP clause”,
clause”, then only such clause is then whole agreement is considered as
considered as void, and the remaining void. [Sec. 3(2)]
agreement is considered as valid.
Separate concepts of MTP and RTP. MTP and RTP are unified together as
“agreements having appreciable adverse effect
on competition in India”.
Old definition of predatory pricing. New definition of predatory pricing. [Pg 17]
Act is equally applicable to PSUs as well as
private entrepreneurs. But the Act is NOT
applicable to those Govt Deptt(s) which are SAME
involved in the sovereign functions of
governmental character.

Old Concept of dominant UTs, and inter New Concept of dominant UTs, and inter
connected UTs. connected UTs.

No concept of combinations, relevant New concept of combinations, relevant

geographic market, relevant product geographic market, relevant product market.
market.

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 4

Competition Policy

The objective of competition policy is to preserve and promote competition as a means of

ensuring efficient allocation of resources.

Competition policy has two components. The first component is a set of policies that
enhance competition in local and national markets. The second component is a set of
legislations designed to prevent anti-competitive business practices with minimal government
intervention.

A competition law by itself cannot produce or ensure competition in the market unless this is
facilitated by appropriate government policies.

On the other hand, government polices would also be incomplete without a law to enforce
such policies and prevent competition malpractices.

Competition policy is about ensuring that markets are, and remain, competitive. This brings
benefits to consumers eventually in all ways. However, eliminating anti-competitive practices
and dismantling monopoly positions that lead to abuses also benefits those firms whose
business suffers from these practices and abuses.

Competition polices cover a much broader set of instruments than competition law, and
typically include all polices aimed at increasing the intensity of competition or rivalry in
local and national markets by lowering entry barriers to ensure that markets work effectively
and serve interests of all citizens. Competition law is only a sub-set of a nation’s competition
policies. [J. 08; D. 07, 08 Exams]

-----*-----

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 5

The Competition Act, 2002

Definitions (Section 2)

Chairperson means the Chairperson of CCI appointed under section 8(1).

Director General means the DG appointed under section 16(1) and includes any
Additional, Joint, Deputy or Assistant DG appointed under that section.

Member means a Member of the Commission (CCI) appointed under section 8(1)
and includes the Chairperson.

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,
in India or outside India;
(vi) any corporation established by or under any Central, State or Provincial Act or a
Government company as defined in section 2(45) of the Companies Act, 2013.
(vii) any body corporate incorporated by or under laws of a country outside India;
(viii) a co-operative society registered under any law relating to cooperative
societies;
(ix) a local authority;
(x) every artificial juridical person, not falling within above sub-clauses;

Prescribed means prescribed by rules made under this Act.

Acquisition means, directly or indirectly, acquiring or agreeing to acquire —

(i) shares of any enterprise; or

(ii) voting rights of any enterprise; or
(iii) ownership of assets of any enterprise; or
(iv) control over management of any enterprise; or
(v) control over assets of any enterprise. - [Refer sec. 5 & 6] - [J. 06 Exams]

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 through court of law.
- [Refer sec. 3]

Appellate Tribunal means National Company Law appellate tribunal established u/s
53A.

Cartel includes an association of producers, sellers, distributors, traders or service

providers who, by agreement amongst themselves, limit, control or attempt to

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 6

control the production, distribution, sale or price of, or, trade in goods or provision of
services. - [J. 05, 06, 11; D. 06 Exams]

---*---
Objective of cartel is to increase the selling prices of the products or services above
the competitive levels resulting in injury to the consumers. Cartelization may also
result in poor quality of products.

An international cartel is created when the different enterprises in the cartel are in
different countries or when the cartel affects the market of more than one country.

In an import-cartel many enterprises enter into agreement for the purpose of

importing into the country.

In an export-cartel many enterprises enter into agreement for the purpose of

exporting into the other country and capturing the market in such other country.
These cartels are exempt from section 3.
---*---
Commission means the CCI established under section 7(1).

Consumer means any person who —

(i) buys any goods for a consideration which has been paid or promised or partly
paid and partly promised, or under any system of deferred payment and
includes any user of such goods other than the person who buys such goods for
consideration paid or promised or partly paid or partly promised, or under any
system of deferred payment when such use is made with the approval of such
person, whether such purchase of goods is for resale or for any
commercial purpose or for personal use;

The Competition Act, 2002 CS DEEPAK GAJRANI

 JMD 7

(ii) hires or avails of any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred
payment and includes any beneficiary of such services other than the person
who hires or avails of the services for consideration paid or promised, or partly
paid and partly promised, or under any system of deferred payment, when such
services are availed of with the approval of the first-mentioned person whether
such hiring or availing of services is for any commercial purpose or for
personal use.

DEFINITION OF CONSUMER [Competition Act, 2002]

Consumer means -

Any PERSON who -

Buys the “GOODS” or Hires the “SERVICES”

and includes and includes

Any LAWFUL USER of such Any BENEFICIARY of

goods (who uses the goods with
permission of such buyer) such services

Whether such person Whether such person hires

buys the goods for - the services for -

Personal Resale Commercial Personal Commercial

purpose or or purpose purpose purpose

NOTES -

Consideration - CONSUMER means any person who buys any goods OR hires any services FOR A
CONSIDERATION –

• which has been paid, or

• promised. or
• partly paid and partly promised, or
• under any system of deferred payment [EMIs].

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 8

DEFINITION OF CONSUMER [CPA, 2019]

Any PERSON who -

Buys the “GOODS” or Hires the “SERVICES”

and includes and includes

Any LAWFUL USER of such goods Any BENEFICIARY of

(who uses the goods with such services
permission of such buyer)

But does not include But does not include

Any person who buys the Any person who hires

goods for - the services for - Inserted
in
2002

Commercial purpose
Resale or Commercial
purpose

---*---

Enterprise means a person or a department of the Government, who or which is,

or has been, engaged in any economic 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 unit 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
functions of the Government including all activities carried on by the departments of
CG dealing with atomic energy, currency, defence and space.

---*---

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 9

Goods means goods as defined in the Sale of Goods Act, 1930 and includes—

(A) products manufactured, processed or mined in India;

(B) debentures, stocks and shares after allotment;
(C) in relation to goods supplied, distributed or controlled in India, goods imported
into India. [Refer page 11]

Shares means shares in the share capital of a company carrying voting rights and
includes—

(i) any security which entitles the holder to receive shares with voting rights;
(ii) stock except where a distinction between stock and share is expressed or
implied. [Refer section 61(1)(c) of CA, 2013]

Relevant market means the market which may be determined by the Commission
with reference to the relevant product market or the relevant geographic market or
with reference to both the markets.

Relevant geographic market means a market comprising the area in which the
conditions of competition for supply of goods or provision of services or demand of
goods or services are distinctly homogenous, and it can be distinguished from the
conditions prevailing in the neighbouring areas. [D. 08, 11, J. 13 Exams]

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 10

Relevant product market means a market comprising ALL THOSE products or

services which are regarded as interchangeable by the consumer, by reason of
characteristics of products or services, their prices and intended use, or, the
production or supply of, which are regarded as inter-changeable or substitutable by the
supplier, by reason of the ease of switching production between such products and
services and marketing them in the short term without incurring significant additional
costs or risks in response to small and permanent changes in relative prices;. [D. 08, J.
13]

Service means service of any description which is made available to potential

users and includes the provision of services in connection with business of any
industrial or commercial matters such as banking, communication, education,
financing, insurance, chit funds, real estate, transport, storage, material treatment,
processing, supply of electrical or other energy, boarding, lodging, entertainment,
amusement, construction, repair, conveying of news or information and advertising;
---*---
Statutory authority means any authority, board, corporation, council, institute,
university or any other body corporate, established by or under any Central, State
or Provincial Act for the purposes of regulating production or supply of goods or
provision of any services or markets therefor or any matter connected therewith or
incidental thereto;

Trade means any trade, business, industry, profession or occupation relating to the
production, supply, distribution, storage or control of goods and includes the
provision of any services;

Turnover includes value of sale of goods or services;

---*---

Notification means a notification published in the Official Gazette.

Practice includes any practice relating to the carrying on of any trade by a person or
an enterprise.

Price in relation to the sale of any goods or to the performance of any services,
includes every valuable consideration, whether direct or indirect, and includes any
consideration which in effect relates to the sale of any goods or to the performance
of any services although ostensibly relating to any other matter or thing.

Public financial institution means a PFI as defined in section 2(72) of the

Companies Act, 2013 and includes a State Financial Corporation, State Industrial
Corporation or State Investment Corporation.

Regulations means the regulations made by the Commission under section 64.

---*---

Words and expressions used but not defined in this Act and defined in the Companies
Act shall have the same meanings respectively assigned to them in that Act.

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 11

---*---

Analysis of the Definition of GOODS in Competition Act, 2002

GOODS
means includes

“Goods” as per
Sale Of Goods Act, 1930
Goods Debentures, Goods
manufactured in Stock, imported
India. shares in
AFTER India.
Goods means all type of their
movable properties, allotment
except -

Cash and actionable

claims.

But includes

stock and shares, growing crops, grass, and things attached to or forming part of the
land which are agreed to be severed before sale or under the contract of sale

Comparison

Goods as per Competition Act, 2002 Goods as per MRTP Act, 1969

Goods include debentures, stock and shares after Goods include stock and shares before allotment
the allotment only. as well as after allotment.

---*---

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 12

Relevant Provisions of Competition Act (as amended till MAR 2010)

Anti competitive agreements (Sec.3) - [J. 06, 09, 11]

Section 3(1) – Absolute prohibition on certain agreements

An enterprise or association of enterprises or person or association of persons

shall NOT enter into any agreement in respect of production, supply, distribution,
storage, acquisition or control of goods or provision of services, which causes or is
likely to cause an appreciable adverse effect on competition within India.

Section 3(2) – Agreements in contravention of sub-section (1).

Any agreement entered into in contravention of the provisions contained in sub-

section (1) shall be void.

Section 3(3) – Four categories of HORIZONTAL Agreements which are

deemed to have AAECI. - [J. 07]

Any agreement entered into between enterprises or associations of enterprises or

persons or associations of persons or between any person and enterprise or practice
carried on, or decision taken by, any association of enterprises or association of
persons, including cartels, engaged in identical or similar trade of goods or
provision of services, which —.

(a) directly or indirectly determines purchase or sale prices [PRICE CARTEL]; [J. 02]
(b) limits or controls production, supply, markets, technical development, investment
or provision of services; [QUOTA CARTEL / TECHNOLOGY CARTEL]
(c) shares the market or source of production or provision of services by way of
allocation of geographical area of market, or allocation of type of goods or
services, or number of customers in the market or any other similar way; [Market
cartel / specialized cartel]
(d) directly or indirectly results in BID RIGGING or collusive bidding,

shall be presumed to have an appreciable adverse effect on competition.

Provided that nothing contained in this sub-sec shall apply to any agreement
entered into by way of JVs, if such agreement increases efficiency in production,
supply, distribution, storage, acquisition or control of goods or provision of services.

[NOTE - GENUINE Joint Venture agreement is VALID, even if it causes AAECI.]

"Bid rigging" means any agreement, between enterprises or persons referred to in

sub-sec (3) engaged in identical or similar production or trading of goods or services,
which has the effect of eliminating or reducing competition for bids or adversely
affecting or manipulating the process for bidding. - [J. 00; D. 11]

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 13

In bid rigging, the bidders create a mutual understanding to keep the bid price at a
certain pre-determined level. The members of bidding group intentionally manipulate
the bidding price. All the actual or potential bidders act in concert.

Such collusive bidding defeats the very purpose of inviting the bids or tenders by the
government or non-government body.

Provided further that an enterprise or association of enterprises or a person or association

of persons though NOT engaged in identical or similar trade shall also be presumed
to be part of the agreement under this sub-section if it participates or intends to participate
in the furtherance of such agreement. (Inserted in 2023)

Section 3(4) – Five categories of VERTICAL Agreements which are NOT

deemed to have AAECI. - [i.e. Complainant shall prove AAECI in CCI]

Any OTHER agreement amongst enterprises or persons including but not

restricted to agreement amongst enterprises or persons at DIFFERENT STAGES OR
LEVELS of the production chain in different markets, in respect of production,
supply, distribution, storage, sale or price of, or trade in goods or provision of
services, including —

(a) tie-in arrangement;

(b) exclusive dealing agreement;
(c) exclusive distribution agreement;
(d) refusal to deal;
(e) resale price maintenance,

shall be an agreement in contravention of S.S.(1) IF such agreement causes or is

likely to cause an appreciable adverse effect on competition in India.

Provided that nothing contained in this sub-section shall apply to an agreement entered
into between an enterprise and an end consumer. (Inserted in 2023)

Explanation —

(a) TIE-IN ARRANGEMENT includes any agreement requiring a purchaser of goods or

services, as a pre-condition of such purchase, to purchase some other distinct
goods or services also;

(b) EXCLUSIVE DEALING AGREEMENT includes any agreement restricting in any manner
the purchaser or the seller, as the case may be, in the course of his trade from acquiring
or selling or otherwise dealing in any goods or services other than those of the seller or
the purchaser or any other person, as the case may be;

(c) EXCLUSIVE DISTRIBUTION AGREEMENT includes any agreement to limit, restrict

or withhold the output or supply of any goods or services OR allocate any
area or market for the disposal or sale of the goods or services;

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 14

(d) REFUSAL TO DEAL includes any agreement which restricts, or is likely to restrict,
by any method the persons or classes of persons to whom goods or services are
sold OR from whom goods or services are bought. -[D. 00]

(e) RESALE PRICE MAINTENANCE [RPM] includes, in case of any agreement to sell
goods or provide services, any direct or indirect restriction that the prices to be
charged on RESALE by the purchaser shall be the prices stipulated by the
seller. [However, if it is CLEARLY STATED in the price list or in the agreement
that on resale buyer may charge prices lower than “the prices stipulated by the
seller”, then it is not resale price maintenance.] - [J. 09]

NOTE – After amendment in 2023, above list of agreements has become inclusive.

Sec. 3(5)– TWO DEFENCES - 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 Copyright Act, 1957;
(b) the Patents Act, 1970;
(c) the Trade and Merchandise Marks Act, 1958 or the Trade Marks Act, 1999;
(d) the Geographical Indications of Goods Act, 1999;
(e) the Designs Act, 2000;
(f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000; OR
(g) any other law for the time being in force relating to the protection of other
intellectual property rights.

(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.

DIAGRAMMATIC CONNECTIVITY OF VARIOUS SUB-SECTIONS OF SEC. 3

The Competition Act, 2002 CS DEEPAK GAJRANI

JMD 15

---*---

The Competition Act, 2002 CS DEEPAK GAJRANI

 15 Competition Act, 2002

Concept of Resale Price Maintenance #1

(iv) Pre – condition

mininimum resale price = 140 per unit

Retailer
Resale price
140 per unit
#1

Retailer
(i) Cost of
manufacture
#2
Rs. 90 per unit

MANUFACTURER WHOLESALER Retailer

(ii) Sale price #3
Rs. 100 per unit

Retailer
(iii) Printed MRP #4
Rs. 200 per unit

Retailer
#5

---*---

Concept of Resale Price Maintenance #2

Pre – condition
Minimum Resale price = 140 per unit

Resale price Retailer #1

140 per unit

Cost of manufacture – Rs. 90 per unit WHOLESALER 1

Sale price – Rs. 100 per unit Retailer #2

MANUFACTURER
Retailer #3
Cost of manufacture – Rs. 90 per unit
Sale price – Rs. 100 per unit
WHOLESALER 2
Retailer #4

Resale price
Pre – condition 140 per unit
Retailer #5
MINIMUM Resale price = 140 per unit

Retailer #n

---*---
Deepak Gajrani (The Academician)
 16 Competition Act, 2002

Concept of Resale Price Maintenance #3

Price List for resale prices

Retailer
#1

Retailer
#2

MANUFACTURER WHOLESALER Retailer

Product Min. #3
resale
price
Per Retailer
unit #4
Resale price
A 140
140 /
B 95 95/110/ 120
Retailer
per unit
#5
C 110
D 120
Retailer
#n

---*---

Concept of Resale Price Maintenance #4

Price List for resale prices
Retailer
#1

Retailer
#2

MANUFACTURER WHOLESALER Retailer

Product Resale #3
price
Per
unit Retailer
A 140 #4
B 95
Retailer
C 110 #5
D 120
Retailer
#n

FOOT NOTE - With the Without the statement that

or
statement that wholesaler is wholesaler is free to sell below
free to sell below the prices the prices stated in the list.
stated in the list above.
[It is NOT R.P.M.] [It is R.P.M.]

Deepak Gajrani (The Academician)

 17 Competition Act, 2002

Concept of Resale Price Maintenance #5

Price List for resale prices (Price band)

Retailer
#1

Retailer
#2

MANUFACTURER
WHOLESALER Retailer
#3
Product Resale
price
Per unit Retailer
(Price #4
Band)
Retailer
A 140 - 150 #5
B 95 - 105
Retailer
C 110 - 120
#n

D 120 - 130

[It is R.P.M., because the price band contains minimum price.]

---*---

---*---

Deepak Gajrani (The Academician)

JMD 18 The Competition Act, 2002

Prohibition of abuse of dominant position (Sec. 4)

(1) No enterprise or group shall abuse its dominant position. (Absolute prohibition)

(2) There shall be an abuse of dominant position [presumed] under ss (1), [in the
following 5 activities], if a dominant enterprise or a group -

(a) directly or indirectly, imposes unfair or discriminatory — [J. 99]

(i) condition in purchase or sale of goods or service; or
(ii) price in purchase or sale (including predatory price) of goods or service,

Explanation — For the purposes of this clause, the unfair or discriminatory

condition in purchase or sale of goods or service referred to in sub-clause (i) and
unfair or discriminatory price in purchase or sale of goods (including predatory
price) or service referred to in sub-clause (ii) shall not include such
discriminatory condition or price which may be adopted to meet the competition
(i.e. to defend itself from other small competitors doing aforementioned
practices); or

(b) limits or restricts—

(i) production of goods or provision of services or market therefore (creating
artificial shortage); or
(ii) technical or scientific development relating to goods or services to the
prejudice of consumers; or

(c) indulges in practice or practices resulting in denial of market access in any

manner [Boycott]; or

(d) makes conclusion / signing 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; or

(e) uses its dominant position in one relevant market to enter into, or protect,
other relevant market.

Explanation — For the purposes of this section, the expression—

(a) "dominant position" means a position of strength, enjoyed by an enterprise, in

the relevant market, in India, which enables it to—

(i) operate independently of competitive forces prevailing in relevant market; or

(ii) affect its competitors or consumers or the relevant market in its favour;

(b) PREDATORY PRICE means the sale of goods or provision of services, at a price
which is below the cost, as may be determined by regulations, of production of
the goods or provision of services, with a view to reduce (i.e. malafide intention)
competition or eliminate the competitors. - [J. 02, 08; D. 10]

(c) Group shall have same meaning as assigned to it in section 5.

BY - DEEPAK GAJRANI (The Academician)

JMD 19 The Competition Act, 2002

Definition of combinations (Sec.5) [D. 09]

The acquisition of one or more enterprises by one or more persons or merger or

amalgamation of enterprises shall be a combination of such enterprises and
persons or enterprises, if—

(a) any acquisition (takeover) where —

(i) the parties to the acquisition, being the acquirer and the enterprise, whose
control, shares, voting rights or assets have been acquired or are
being acquired jointly have —
(A) either, in India, the assets of the value of more than Rs. 2,500 crores or
turnover more than Rs. 7,500 crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than
USD 1.25 billion, including at least Rs. 1,250 Cr in India, OR turnover more than
USD 3.75 billion, including at least Rs. 3,750 Cr in India; or

(ii) the group, to which the enterprise 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,—
(A) either in India, the assets of the value of more than Rs. 10,000 crores or
turnover more than Rs. 30,000 crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than
USD 5 billion, including at least Rs. 1,250 Cr in India, or turnover more than USD
15 billion, including at least Rs. 3,750 Cr 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—

(i) the enterprise over which control has been acquired along with the enterprise
over which the acquirer already has direct or indirect control jointly have,—

(A) either, in India, the assets of the value of more than Rs. 2,500 crores or
turnover more than Rs. 7,500 crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than
USD 1.25 billion, including at least Rs 1250 Cr in India, OR turnover more than
USD 3.75 billion, including at least Rs 3750 Cr in India; or

(ii) 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 Rs. 10,000 crores or
turnover more than Rs. 30,000 crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than
USD 5 billion, including at least Rs. 1250 Cr in India, or turnover more than USD
15 billion, including at least Rs. 3750 Cr in India; or

BY - DEEPAK GAJRANI (The Academician)

JMD 20 The Competition Act, 2002

(c) any merger or amalgamation in which—

(i) the enterprise remaining after merger, or the enterprise created as a result
of the amalgamation, have —

(A) either, in India, the assets of the value of more than Rs. 2,500 crores or
turnover more than Rs. 7,500 crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than
USD 1.25 billion, including at least Rs 1250 Cr in India, OR turnover more than
USD 3.75 billion, including at least Rs 3750 Cr in India; or

(ii) the group, to which the enterprise remaining after the merger, or the
enterprise created as a result 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 Rs. 10,000 crores or
turnover more than Rs. 30,000 crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than
USD 5 billion, including at least Rs. 1250 Cr in India, or turnover more than USD
15 billion, including at least Rs. 3750 Cr in India; or

(d) value of any transaction, in connection with acquisition of any control, shares, voting
rights or assets of an enterprise, merger or amalgamation exceeds Rs. 2000 crore:
Provided that the enterprise which is being acquired, taken control of, merged or
amalgamated has such substantial business operations in India as may be specified
by regulations.
(e) notwithstanding anything contained in clause (a) or clause (b) or clause (c), where
either the value of assets or turnover of the enterprise being acquired, taken control
of, merged or amalgamated in India is not more than such value as may be
prescribed, such acquisition, control, merger or amalgamation, shall not constitute a
combination under section 5.

Explanation.—For the purposes of this section,—

(a) "control" means the ability to exercise material influence, in any manner whatsoever,
over the management or affairs or strategic commercial decisions by —
(i) one or more enterprises, either jointly or singly, over another enterprise or
group;
(ii) one or more groups, either jointly or singly, over another group or enterprise;

(b) "GROUP" means two or more enterprises, where one enterprise is directly or
indirectly, in a position to —
(i) exercise 26% or such other higher percentage as may be prescribed, of the voting rights in
the other enterprise; or
(ii) appoint more than 50% of the board of directors in other enterprise; or
(iii)control the management or affairs of the other enterprise;

BY - DEEPAK GAJRANI (The Academician)

JMD 21 The Competition Act, 2002

(c) "turnover" means the turnover certified by the statutory auditor on the basis of the last
available audited accounts of the company in the financial year immediately preceding
the financial year in which the notice is filed under section 6(2) or (4) and such turnover
in India shall be determined by excluding intra-group sales, indirect taxes, trade discounts
and all amounts generated through assets or business from customers outside India, as
certified by the statutory auditor on the basis of the last available audited accounts of
the company in the financial year immediately preceding the financial year in which the
notice is filed under section 6(2) or (4);

(d) "value of transaction" includes every valuable consideration, whether direct or

indirect, or deferred for any acquisition, merger or amalgamation;

(e) the value of assets shall be determined by taking the book value of the assets as
shown, in the audited books of account of the enterprise, in the financial year
immediately preceding the financial year in which the date of proposed
combination falls and if such financial statement has not yet become due to be filed
with the Registrar under the Companies Act, 2013 then as per the statutory auditor's
report made on the basis of the last available audited accounts of the company in the
financial year immediately preceding the financial year in which the notice is filed
under sub-section (2) or sub-section (4) of section 6, as reduced by any depreciation,
and the value of assets shall include the brand value, value of goodwill, or value of
copyright, patent, permitted use, collective mark, registered proprietor, registered trade
mark, registered user, homonymous geographical indication, geographical indications,
design or layout-design or similar other commercial rights under the laws provided in
section 3(5);
(f) where a portion of an enterprise or division or business is being acquired, taken control
of, merged or amalgamated with another enterprise, the value of assets or turnover or
value of transaction as may be applicable, of the said portion or division or business or
attributable to it, shall be the relevant assets or turnover or relevant value of transaction
for the purpose of applicability of the thresholds under section 5..
---*---
NOTE - As per sec. 5, there are 8 alternative criteria(s) of combination, and if
proposed amalgamation or takeover falls in any one of the 8 criteria(s) then such
amalgamation or takeover WILL BE CONSIDERED AS COMBINATION u/s 5; and it
shall be done only with prior approval of CCI u/s 6.

These 8 criteria(s) (w.r.t. aggregate assets or turnover of concerned enterprises or

group) shall be checked BEFORE making the takeover or amalgamation. ---*---

BY - DEEPAK GAJRANI (The Academician)

JMD 22 The Competition Act, 2002

Section 5(a) & (c ) = Combination means any takeover or amalgamation

Individual criteria Group Criteria

Acquirer company and target co.; OR OR The group to which the acquirer company belongs
amalgamating Companies. (or) amalgamated companies belong -

Have in INDIA Have in INDIA Has in INDIA OR Has in INDIA and/or

OR and/or outside INDIA outside INDIA

Assets of Turnover Assets of OR Turnove Assets Turnover Assets OR Turnover

> Rs. OR of > $ 1.25 r of of OR of of of
2500 > Rs. billion > $ 3.75 > Rs. > Rs. > $5 > $15
Cr 7500 billion 10000 30000 billion billion
Cr. Cr. Cr.
Out of Out of Out of Out of
which the which the which the which the
assets of turnover of assets of turnover of
at least at least at least at least
Rs. 1250 Rs. 3750 Rs. 1250 Rs. 3750
crores crores crores crores
are in is in are in is in
India India India India

Section 5(b) = Combination - any person

Exercising control over an enterprise ALSO acquires control over another UT/Enterprise

Group Criteria
Individual criteria OR The group to which the enterprises will belong after
And both such undertakings / enterprises jointly have the acquisition -

Have in INDIA Have in INDIA and/or Has in INDIA OR Has in INDIA and/or
OR outside INDIA outside INDIA

Assets of Turnover Assets of OR Turnover Assets Turnover Assets OR Turnover

> Rs. OR of > $ 1.25 of of OR of of of
2500 > Rs. billion > $ 3.75 > Rs. > Rs. >$5 > $ 15
Cr. 7500 billion 10000 30000 billion billion
Cr. Cr. Cr.
Out of Out of Out of Out of
which the which the which the which the
assets of turnover of assets of turnover of
at least at least at least at least
Rs. 1250 Rs. 3750 Rs. 1250 Rs. 3750
crores crores crores crores
are in is in are in is in
India India India India

BY - DEEPAK GAJRANI (The Academician)

JMD 23 The Competition Act, 2002

Regulation of combinations (Sec.6) - [D. 07]

(1) A person or enterprise shall NOT enter into a COMBINATION which causes or is
likely to cause an appreciable adverse effect on competition within the relevant
market in India, and such a combination shall be void.

(2) Subject to the provisions contained in sub-section (1), any person or enterprise,
who or which proposes to enter into a combination, shall give notice /
application to the CCI, in the form as may be specified, and the fee which may
be determined, by regulations, disclosing the details of the proposed
combination, after any of the following, but before consummation of the combination of—

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

section 5(c) and (d), by the board of directors of the enterprises concerned
with such merger or amalgamation, as the case may be; or
(b) execution of any agreement or other document* for acquisition referred to
in sec 5(a) and (d), or acquiring of control referred to in Sec.5(b).

*Explanation.— *other document means any document, by whatever name called,

conveying an agreement or decision to acquire control, shares, voting rights or assets or
if the acquisition is without the consent of the enterprise being acquired, any
document executed by the acquiring enterprise, by whatever name called, conveying a
decision to acquire control, shares or voting rights or where a PA has been made in
accordance with the provisions of the SEBI (SAST) Regulations, 2011 for acquisition
of shares, voting rights or control such public document

(2A) No combination shall come into effect until 150 days have passed from the
day on which the notice has been given to CCI under sub section (2) or CCI
has passed order under section 31, whichever is earlier.

(3) The CCI shall, after receipt of notice under sub-section (2), deal with such notice
in accordance with the provisions contained in sections 29, 29A, 30 and 31.
[Investigation procedure before granting the approval].

(4) Notwithstanding anything contained in sub-sections (2A) and (3) and section 43A, if a
combination fulfils such criteria as may be prescribed and is not otherwise exempted
under this Act from the requirement to give notice to the Commission under sub-
section (2), then notice for such combination may be given to the Commission in
such form and on payment of such fee as may be specified by regulations,
disclosing the details of the proposed combination and thereupon a separate notice
under sub-section (2) shall not be required to be given for such combination.

(5) Upon filing of a notice under sub-section (4) and acknowledgement thereof by the
Commission, the proposed combination shall be deemed to have been approved by the
Commission under sub-section (1) of section 31 and no other approval shall be required
under sub-section (2) or sub-section (2A).

Q. What are the functions of CCI ? A. Sec. 3, 4, 5, 6, 19, 20, 21, 49.

BY - DEEPAK GAJRANI (The Academician)

JMD 24 The Competition Act, 2002

NOTE – MCA Notification – dated 7th March 2024 - The Central Government, in
public interest, HEREBY EXEMPTS an enterprise (i.e. target company), whose control,
shares, voting rights or assets are being acquired has either ASSETS of the value of not
more than rupees 450 crores in India OR TURNOVER of not more than rupees 1250
crores in India FROM THE PROVISIONS OF SECTION 5 of the said Act for a period
of 5 years from the date of publication of the notification in the official gazette.

---*---

---*---

BY - DEEPAK GAJRANI (The Academician)

JMD 25 The Competition Act, 2002

Sec.6(6) – If within the period referred to in sub-section (1) of section 20, the
Commission finds that the combination notified under sub-section (4) does not fulfil the
requirements specified under that sub-section or the information or declarations
provided are materially incorrect or incomplete, the approval under sub-section (5) shall
be void ab initio and the Commission may pass such order as it may deem fit:
Provided that no such order shall be passed unless the parties to the combination
have been given an opportunity of being heard.
(7) Notwithstanding anything contained in this section and section 43A, upon
fulfilment of such criteria as may be prescribed, certain categories of
combinations shall be exempted from the requirement to comply with sub-
sections (2), (2A) and (4).

(8) Notwithstanding anything contained in sub-sections (4), (5), (6) and (7) —
(i) the rules and regulations made under this Act on the matters referred to in
these sub-sections as they stood immediately before the commencement of
the Competition (Amendment) Act, 2023 and in force at such
commencement, shall continue to be in force, till such time as the rules or
regulations, as the case may be, made under this Act; and
(ii) any order passed or any fee imposed or combination consummated or
resolution passed or direction given or instrument executed or issued or
thing done under or in pursuance of any rules and regulations made under
this Act shall, if in force at the commencement of the Competition
(Amendment) Act, 2023, continue to be in force, and shall have effect as if
such order passed or such fee imposed or such combination consummated or
such resolution passed or such direction given or such instrument executed
or issued or done under or in pursuance of this Act.
(9) The provisions of this section shall not apply to share subscription or financing
facility or any acquisition, by a public financial institution, foreign portfolio
investor, bank or Category I alternative investment fund, pursuant to any
covenant of a loan agreement or investment agreement.
Explanation.—For the purposes of this section, the expression—
(a) "Category I alternative investment fund" has the same meaning as assigned
to it under the SEBI (Alternative Investment Funds) Regulations, 2012
made under the SEBI Act, 1992;
(b) "foreign portfolio investor" has the same meaning as assigned to it under
the SEBI (Foreign Portfolio Investors) Regulations.

BY - DEEPAK GAJRANI (The Academician)

 JMD 26 The Competition Act, 2002

Sec 6A -OPEN OFFER

Section 6A of the Act provides that nothing contained in section 6(2A) and section 43A
shall prevent the implementation of an open offer or an acquisition of shares or securities
convertible into other securities from various sellers, through a series of transactions on a
regulated stock exchange from coming into effect, if—

(a) the notice of the acquisition is filed with the Commission within such time and in
such manner as may be specified by regulations; and

(b) the acquirer does not exercise any ownership or beneficial rights or interest in
such shares or convertible securities including voting rights and receipt of dividends or
any other distributions, except as may be specified by regulations, till the Commission
approves such acquisition in accordance with the provisions of sub-section (2A) of
section 6 of the Act.

Explanation. — "open offer" means an open offer made in accordance with the
Securities and Exchange Board of India (SAST) Regulation, 2011.

Establishment of CCI (Sec.7)

(1) With effect from such date as CG may, by notification, appoint, there shall be
established, for the purposes of this Act, a Commission to be called the
"Competition Commission of India".
(2) The CCI shall be a body corporate by the name aforesaid having perpetual
succession and a common seal with power, subject to the provisions of this Act,
to acquire, hold and dispose of property, both movable and immovable, and to
contract and shall, by the said name, sue or be sued,
(3) The HEAD OFFICE of the CCI shall be at such place as CG may decide from time
to time.
(4) The CCI may establish offices at other places in India.

Composition of CCI (Sec. 8)

(1) The CCI shall consist of a Chairperson and not less than two and not more than
six other Members to be appointed by CG.

(2) The Chairperson and every other Member shall be a person of ability, integrity
and standing and who, has been, or is qualified to be, a judge of a High Court;
OR, has special knowledge of, and professional experience of not less than 15
years in international trade, economics, business, commerce, law, finance,
accountancy, management, industry, TECHNOLOGY, public affairs, administration
or in any other matter which, in the opinion of CG, may be useful to the CCI.

(3) The Chairperson and other Members shall be whole-time members.

BY - DEEPAK GAJRANI (The Academician)

JMD 27 The Competition Act, 2002

Selection of Chairperson and other Members (Sec. 9)

The Chairperson and other Members shall be appointed by CG from a panel of

names recommended by a Selection Committee.

Term of office of Chairperson and other Members (Section 10)

(1) The Chairperson and every other Member shall hold office as such for a term of
five years from the date on which he enters upon his office and shall be eligible
for re-appointment.

Provided that Chairperson or other Member shall not hold office as such after he
has attained the age of 65 years.

(2) A vacancy caused by the resignation or removal of the Chairperson or any

other Member under sec. 11 or by death or otherwise shall be filled by fresh
appointment in accordance with the provisions of sec. 8 and 9.
(3) The Chairperson and every other Member shall, before entering upon his office,
make and subscribe to AN OATH OF OFFICE AND OF SECRECY in such form,
manner and before such authority, as may be prescribed.
(4) In the event of the occurrence of a vacancy in the office of the Chairperson by
reason of his death, resignation or otherwise, the senior-most Member shall
ACT AS the Chairperson, until the date on which a new Chairperson, appointed in
accordance with the provisions of this Act to fill such vacancy, enters upon his
office.

(5) When the Chairperson is unable to discharge his functions owing to absence,
illness or any other cause, the senior-most Member shall discharge the
functions of the Chairperson until the date on which the Chairperson resumes
the charge of his functions.

Resignation or removal of Chairperson - (Sec. 11)

(1) The Chairperson or any other Member may, by notice in writing under his hand
addressed to the CG, RESIGN his office.

Chairperson or a Member shall, unless he is permitted by CG to relinquish his

office sooner, continue to hold office until the expiry of 3 months from the date
of receipt of such notice OR until a person duly appointed as his successor
enters upon his office OR until the expiry of his term of office, whichever is
the earliest.

(2) CG may, by order, REMOVE the Chairperson or any other Member from his
office if such Chairperson or Member, as the case may be,—
(a) is, or at any time has been, adjudged as an insolvent; or
(b) has engaged at any time, during his term of office, in any paid
employment, or
(c) has been convicted of an offence which, in the opinion of CG, involves
moral turpitude; or
(d) has acquired such financial or other interest as is likely to affect
prejudicially his functions as a Member; or

BY - DEEPAK GAJRANI (The Academician)

JMD 28 The Competition Act, 2002

(e) has so abused his position as to render his continuance in office prejudicial
to the public interest; or
(f) has become physically or mentally incapable of acting as a Member.

(3) Notwithstanding anything contained in sub-section (2), no Member shall be

removed from his office on the ground specified in clause (d) or (e) above,
unless the Supreme Court, on a reference being made to it in this behalf by CG,
has, on an inquiry, held by it in accordance with such procedure as may be
prescribed in this behalf by the Supreme Court, reported that the Member,
ought on such ground or grounds to be removed. – [TOTAL 4 STEPS]

Restriction on employment of Chairperson and other Members (Sec.12)

According to Section 12(1) of the Act, Chairperson and other Members shall, for a
period of two years from the date on which they cease to hold office, not accept any
employment in or advise as a consultant, retainer or in any other capacity
whatsoever, or be connected with the management or administration of—

a) any enterprise which is or has been a party to a proceeding before the

Commission under this Act; or
b) any person who appears or has appeared before the Commission under section 35.

Section 12(2) provides that notwithstanding anything contained in section 35, the
Chairperson or any other Member after retirement or otherwise ceasing to be in
service for any reason shall not represent for any person or enterprise before the
Commission:

Provided that nothing contained in this section shall apply to any employment under
the Central Government or a State Government or local authority or in any statutory
authority or any corporation established by or under any Central, State or Provincial
Act or a Government company as defined in SEC 2(45).

Financial and administrative powers of Member Administration (Sec.13)

Chairperson shall have the power of general superintendence, direction and

control in respect of all administrative matters of CCI.

Provided that Chairperson may delegate such of his administrative powers as he

may think fit to any other member or officer of the CCI.

Salary and allowances and other terms and conditions of service of

Chairperson and other Members [Sec. 14]

(1) The salary, and the other terms and conditions of service, of the Chairperson and
other Members, including travelling expenses, house rent allowance and
conveyance facilities, sumptuary allowance and medical facilities shall be such as
may be prescribed.

BY - DEEPAK GAJRANI (The Academician)

JMD 29 The Competition Act, 2002

(2) The salary, allowances and other terms and conditions of service of the
Chairperson or a Member shall not be varied to his disadvantage after
appointment.

Vacancy, etc. not to invalidate proceedings of CCI [Sec 15]

An act or proceeding of the CCI shall not be invalid merely by reason of—

(a) any vacancy in, or any defect in the constitution of, the CCI; or
(b) any defect in the appointment of a person acting as a Chairperson or as a
Member; or
(c) any irregularity in the procedure of the CCI;

NOT affecting the merits of the case (i.e. Quality of Judgement).

Appointment of Director General, etc. by CG [Sec. 16]

(1) CCI may, with the prior approval of the Central Government, appoint a DG and as
many Additional, Joint, Deputy or Assistant DG or such other advisers,
consultants or officers, as it may think fit, for the purposes of ASSISTING the
CCI - (a) in conducting inquiry into contravention of any of the provisions of this
Act, and (b) for the conduct of cases before the CCI, and (c) for performing such
other functions as are, or may be, provided by or under this Act.

(2) Every Additional, Joint, Deputy and Assistant DG or such other advisers,
consultants and officers, shall exercise his powers, and discharge his functions,
subject to the general control, supervision and direction of the DG.

(3) The salary, allowances and other terms and conditions of service of the DG and
Additional, Joint, Deputy and Assistant DG or such other advisers, consultants or
officers, shall be such as may be prescribed.

(4) The DG and Additional, Joint, Deputy and Assistant DG or such other advisers,
consultants or officers shall be appointed from amongst persons of integrity and
outstanding ability and who have experience in investigation, and knowledge of
accountancy, management, business, public administration, international trade,
law or economics and such other qualifications as may be prescribed.

Secretary and officers and other employees of CCI [Sec 17]

(1) The Commission [CCI] may appoint - a Secretary and such officers and
other employees, as it considers necessary, for the efficient performance of its
functions under this Act.

(2) The salaries and allowances payable to and other terms and conditions of service
of the Secretary and officers and other employees of the CCI and the number of
such officers and other employees shall be such as may be prescribed.

(3) CCI may engage, in accordance with the procedure specified by regulations,
such number of EXPERTS AND PROFESSIONALS of integrity and outstanding
ability, who have special knowledge of, and experience in, economics, law,

BY - DEEPAK GAJRANI (The Academician)

JMD 30 The Competition Act, 2002

business or such other discipline related to competition, as it deems necessary to

assist the CCI in discharge of its functions.

Duties of CCI – Sec. 18

Section 18 of the Act deals with duties and functions of the Commission. It states
that subject to the provisions of this Act, it shall be theduty of the Commission to
eliminate practices having adverse effect on competition, promote and sustain
competition, protect the interests of consumers and ensure freedom of trade carried
on by other participants, in markets in India:

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:

Provided further 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 any statutory authority or department of Government.

Inquiry into agreements and dominant position (Sec.19)

(1) The CCI may inquire into any alleged contravention of the provisions contained in
section 3(1) or section 4(1) either on its own motion, or on—

(a) receipt of any information, in such manner and accompanied by such fee as
may be specified, from any person, consumer or their association or trade
association; or
(b) a reference made to CCI by CG or a SG or a statutory authority.

It may be noted that the Commission shall not entertain an information or a reference
unless it is filed within three years from the date on which the cause of action has
arisen.

Provided further that an information or a reference may be entertained after the period
specified in the first proviso if the Commission is satisfied that there had been sufficient
cause for not filing the information or the reference within such period after recording its
reasons for condoning such delay.

(2) Without prejudice to the provisions contained in sub-section (1), the powers and
functions of the CCI shall include the powers and functions specified in sub-
sections (3) to (7).

(3) SIX FACTORS CONSIDERED BY CCI BEFORE PASSING ORDER AGAINST

AGREEMENT HAVING AAECI - The CCI shall, while determining whether an
agreement has an appreciable adverse effect on competition UNDER SECTION 3,
have due regard to all or any of the following factors, namely:—
[J. 07]

BY - DEEPAK GAJRANI (The Academician)

JMD 31 The Competition Act, 2002

(a) creation of barriers to new entrants in the market;

(b) driving existing competitors out of the market;
(c) foreclosure of competition by hindering entry into the market;
(d) benefits or harm 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 services.

(4) THIRTEEN FACTORS CONSIDERED BY CCI BEFORE PASSING ORDER AGAINST

ABUSE OF DOMINANT POSITION - The CCI shall, while inquiring whether an
enterprise enjoys a dominant position or not UNDER SECTION 4, have due regard
to all or any of the following 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 advantages over
competitors;
(e) vertical integration of the enterprises or sale or service network of such
enterprises;
(f) dependence of consumers on the enterprise;
(g) monopoly or dominant position whether acquired as a result of any statute
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 entry, marketing entry barriers, technical entry barriers,
economies of scale, high cost of substitutable goods or service for consumers;
(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 factor which the CCI may consider relevant for the inquiry.

(5) For determining whether a market constitutes a "relevant market" for the
purposes of this Act, the CCI shall have due regard to the "relevant geographic
market'' and "relevant product market".

(6) EIGHT FACTORS CONSIDERED BY CCI WHILE DECIDING THAT WHETHER A

PARTICULAR GEOGRAPHICAL AREA CAN BE DECLARED AS RELEVANT
GEOGRAPHIC MARKET OR NOT –

The CCI shall, while determining the "relevant geographic market", have due
regard to all or any of the following factors, namely:—

(a) regulatory trade barriers;

(b) local specification requirements;
(c) national procurement policies;
(d) adequate distribution facilities;
(e) transport costs;
(f) language;

BY - DEEPAK GAJRANI (The Academician)

JMD 32 The Competition Act, 2002

(g) consumer preferences;

(h) need for secure or regular supplies or rapid after-sales services.
(i) characteristics of goods or nature of services;
(j) costs associated with switching supply or demand to other areas.

(7) SIX FACTORS CONSIDERED BY CCI WHILE DECIDING THAT WHETHER TWO OR
MORE SUBSTITUTABLE PRODUCTS CAN BE DECLARED AS “RELEVANT
PRODUCT MARKET” OR NOT –

The CCI shall, while determining the "relevant product market", have due regard
to all or any of the following factors, namely:—

(a) physical characteristics or end-use of goods or nature of services;

(b) price of goods or service;
(c) consumer preferences;
(d) exclusion of in-house production;
(e) existence of specialised producers;
(f) classification of industrial products.
(g) costs associated with switching demand or supply to other goods or services;
(h) categories of customers.

Sec. 26 - Procedure for inquiry under section 19

(1) On receipt of a reference from the Central Government or a State Government or

a statutory authority or on its own knowledge or information received under section
19, if the CCI is of the opinion that there exists a prima facie case, it shall direct the
Director General to cause an investigation to be made into the matter:

Provided that if the subject matter of an information received is, in the opinion of
the CCI, substantially the same as or has been covered by any previous information
received, then the new information may be clubbed with the previous information.

(2) Where on receipt of a reference from the Central Government or a State

Government or a statutory authority or information received under section 19, the
CCI is of the opinion that there exists no prima facie case, it shall close the matter
forthwith and pass such orders as it deems fit and send a copy of its order to the
Central Government or the State Government or the statutory authority or the
parties concerned, as the case may be.

(2A) The Commission may not inquire into agreement referred to in section 3 or conduct
of an enterprise or group under section 4, if the same or substantially the same facts and
issues raised in the information received under section 19 or reference from the Central
Government or a State Government or a statutory authority has already been decided by the
Commission in its previous order.

(3) The Director General shall, on receipt of direction under sub-section (1), submit a
report on his findings within such period as may be specified by the CCI.

(3A) If, after consideration of the report of the Director General referred to in sub-section (3),

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JMD 33 The Competition Act, 2002

the Commission is of the opinion that further investigation is required, it may direct the
Director General to investigate further into the matter.

(3B) The Director General shall, on receipt of direction under sub-section (3A),
investigate the matter and submit a supplementary report on his findings within such
period as may be specified by the Commission.

(4) The CCI may forward a copy of the report referred to in sub-section (3) and (3B)
to the parties concerned:

Provided that in case the investigation is caused to be made based on reference

received from the Central Government or the State Government or the statutory
authority, the CCI shall forward a copy of the report referred to in sub- section (3) to
the Central Government or the State Government or the statutory authority, as the
case may be.

(5) If the report of the Director General referred to in sub-section (3) and (3B)
recommends that there is no contravention of the provisions of this Act, the CCI shall
invite objections or suggestions from the Central Government or the State
Government or the statutory authority or the parties concerned, as the case may be,
on such report of the Director General.

(6) If, after consideration of the objections and suggestions referred to in sub section
(5), if any, the CCI agrees with the recommendation of the Director General, it shall
close the matter forthwith and pass such orders as it deems fit and communicate its
order to the Central Government or the State Government or the statutory authority
or the parties concerned, as the case may be.

(7) If, after consideration of the objections or suggestions referred to in sub-section

(5), if any, the CCI is of the opinion that further investigations is called for, it may
direct further investigation in the matter by the Director General or cause further
inquiry to be made by in the matter or itself proceed with further inquiry in the
matter in accordance with the provisions of this Act.

(8) If the report of the Director General referred to in sub-section (3) and (3B)
recommends that there is contravention of any of the provisions of this Act, and the
CCI is of the opinion that further inquiry is called for, it shall inquire into such
contravention in accordance with the provisions of this Act.
(9) Upon completion of the investigation or inquiry under sub-section (7) or sub-
section (8), as the case may be, the Commission may pass an order closing the matter
or pass an order under section 27, and send a copy of its order to the Central
Government or the State Government or the statutory authority or the parties
concerned, as the case may be.
Provided that before passing such order, the Commission shall issue a show-cause
notice indicating the contraventions alleged to have been committed and such other
details as may be specified by regulations and give a reasonable opportunity of being
heard to the parties concerned.

BY - DEEPAK GAJRANI (The Academician)

JMD 34 The Competition Act, 2002

Section 27 - Orders by CCI after inquiry into Sec. 3 or Sec. 4

Where after inquiry the CCI finds that any 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 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 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 or income, as the case may be, for the last three
preceding financial years, upon each of such person or enterprise which is a party to
such agreement or has abused its dominant position.
Provided that in case any agreement referred to in section 3 has been entered into by
a cartel, the Commission may impose upon each producer, seller, distributor, trader or
service provider included in that cartel, a penalty of up to three times of its profit for
each year of the continuance of such agreement or ten per cent. of its turnover or
income, as the case may be, for each year of the continuance of such agreement,
whichever is higher.
Explanation 1. —For the purposes of this clause, the expression "turnover" or "income",
as the case may be, shall be determined in such manner as may be specified by
regulations.

Explanation 2. —For the purposes of this clause, "turnover" means global turnover derived
from all the products and services by a person or an enterprise.

(c) Omitted

(d) direct that the agreements shall stand modified to the extent and in the manner
as may be specified in the order by the CCI;

(e) direct the enterprises concerned to abide by such other orders as the CCI may
pass and comply with the directions, including payment of costs, if any;

(f) Omitted.

(g) pass such other order or issue such directions as it may deem fit.

Provided that while passing orders under this section, if the CCI comes to a finding,
that an enterprise in contravention to section 3 or section 4 of the Act is a member
of a group as defined in clause (b) of the Explanation to section 5 of the Act, and
other members of such a group are also responsible for, or have contributed to, such
a contravention, then it may pass orders, under this section, against such members
of the group.

BY - DEEPAK GAJRANI (The Academician)

JMD 35 The Competition Act, 2002

Sec. 28 - Division of enterprise enjoying dominant position

(1) The CCI may, notwithstanding anything contained in any other law for the time
being in force, by order in writing, direct division of an enterprise enjoying dominant
position to ensure that such enterprise does not abuse its dominant position.

(2) In particular, and without prejudice to the generality of the foregoing powers, the
order referred to in sub-section (1) may provide for all or any of the following
matters, namely:—

(a) the transfer or vesting of property, rights, liabilities or obligations;

(b) the adjustment of contracts either by discharge or reduction of any liability or

obligation or otherwise;

(c) the creation, allotment, surrender or cancellation of any shares, stocks or

securities;

(d) Omitted.

(e) the formation or winding up of an enterprise or the amendment of the

memorandum of association or articles of association or any other instruments
regulating the business of any enterprise;

(f) the extent to which, and the circumstances in which, provisions of the order
affecting an enterprise may be altered by the enterprise and the registration thereof;

(g) any other matter which may be necessary to give effect to the division of the
enterprise.

(3) Notwithstanding anything contained in any other law for the time being in force
or in any contract or in any memorandum or articles of association, an officer of a
company who ceases to hold office as such in consequence of the division of an
enterprise shall not be entitled to claim any compensation for such cesser.

Inquiry into combination by CCI (Sec.20)

(1) The CCI may, upon its own knowledge or information relating to acquisition
referred to in section 5(a) or acquiring of control referred to in clause (b) of
section 5 or merger or amalgamation referred to in clause (c) of that section,
inquire into whether such a combination has caused or is likely to cause an
appreciable adverse effect on competition in India.

Provided that the CCI 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.

(2) The CCI shall, on receipt of a notice under sub-section (2) of section 6, inquire
whether a combination referred to in that notice or reference has caused or is
likely to cause an appreciable adverse effect on competition in India.

BY - DEEPAK GAJRANI (The Academician)

JMD 36 The Competition Act, 2002

(3) Notwithstanding anything contained in section 5, CG shall, on the expiry of a

period of 2 years from the date of commencement of this Act and thereafter
every 2 years, in consultation with the CCI, enhance or reduce by notification, or
keep at the same level, on the basis of the wholesale price index or fluctuations in
exchange rate of rupee or foreign currencies, or such factors that in its opinion are
relevant in this matter, the value of assets or the value of turnover or value of
transaction, for the purposes of that section.

(4) For the purposes 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 CCI 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;
(c) level of CONCENTRATION in the market;
(d) degree of countervailing power in the market;
(e) likelihood that the combination would result in the parties to the combination
being able to significantly and sustainably increase prices or profit margins;
(f) extent of effective competition likely to sustain in a market;
(g) extent to which substitutes are available or arc 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 the 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.

Procedure for investigation of combination - Sec. 29

(1) Where the CCI is of the prima facie opinion that a combination is likely to cause,
or has caused an appreciable adverse effect on competition within the relevant
market in India, it shall issue a notice to show cause to the parties to
combination calling upon them to respond within 15 Days of the receipt of the
notice, as to why investigation in respect of such combination should not be
conducted.

(1A) After receipt of the response of the Parties to the combination under sub section
1, CCI may call for a report from DG, and such report shall be submitted by DG
within such time as the CCI may direct.

(1B) CCI shall, within 30 days of receipt of notice under sub-section (2) of section 6,
form its prima facie opinion referred to in sub-section (1).

BY - DEEPAK GAJRANI (The Academician)

JMD 37 The Competition Act, 2002

(2) The CCI, if it is prima facie of the opinion that the combination has, or is likely to
have, an appreciable adverse effect on competition, it shall, within seven days
from the date of receipt of the response of the parties to the combination, or the
receipt of report from DG under sub section(1A), direct the parties to the said
combination to publish details of the combination within 7 days of such
direction, in such manner, as it thinks appropriate, for bringing the combination
to the knowledge or information of the public and persons affected or likely to be
affected by such combination.

(3) The CCI may invite any person or member of the public, affected or likely to be
affected by the said combination, to file his written objections, if any, before the
CCI within 10 days from the date on which the details of the combination were
published under sub-section (2).

(4) The CCI may, within 7 days from the expiry of the period specified in sub-
section (3), call for such additional or other information as it may deem fit from
the parties to the said combination.

(5) The additional or other information called for by the CCI shall be furnished by the
parties referred to in sub-section (4) within 10 days from the expiry of the
period specified in sub-section (4).

(6) After receipt of all information, the CCI shall proceed to deal with the case in
accordance with the provisions contained in section 29A or section 31, as the case
may be.
(7) Notwithstanding anything contained in this section, the Commission may accept
appropriate modifications offered by the parties to the combination or suo motu
propose modifications, as the case may be, before forming a prima facie opinion
under sub-section (1).

ISSUE OF STATEMENT OF OBJECTIONS BY CCI –

Sec. 29A. (1) Upon completion of the process under section 29, where the Commission is of
the opinion that the combination has, or is likely to have, an appreciable adverse effect on
competition, it shall issue a statement of objections to the parties identifying such
appreciable adverse effect on competition and direct the parties to explain within 25 days of
receipt of the statement of objections, why such combination should be allowed to take
effect.

(2) Where the parties to the combination consider that such appreciable adverse effect on
competition can be eliminated by suitable modification to such combination, they may
submit an offer of appropriate modification to the combination along with their
explanation to the statement of objections issued under sub-section (1) in such manner as
may be specified by regulations.

BY - DEEPAK GAJRANI (The Academician)

JMD 38 The Competition Act, 2002

(3) If the Commission does not accept the modification submitted by the parties under sub-
section (2) it shall, within seven days from the date of receipt of the proposed modifications
under that sub-section, communicate to the parties as to why the modification is not
sufficient to eliminate the appreciable adverse effect on competition and call upon the
parties to furnish, within twelve days of the receipt of the said communication, revised
modification, if any, to eliminate the appreciable adverse effects on competition:
Provided that the Commission shall evaluate such proposal for modification within
twelve days from receipt of such proposal:
Provided further that the Commission may suo motu propose appropriate modifications to
the combination which may be considered by the parties to the combination

Sec.30 - Inquiry into disclosures under section 6(2)

Where any person or enterprise has given a notice under section 6(2), the CCI shall
examine such notice and form its prima facie opinion as provided in section 29(1)
and proceed as per the provisions contained in that section.

Sec.31 - Orders of CCI on combinations (3 SITUATIONS)

(1) Where the CCI is of the opinion that any combination does not, or is not likely to,
have an appreciable adverse effect on competition, it shall, by order, approve
that combination including the combination in respect of which a notice has been
given under sub-section (2) of section 6. (#1)

Provided that if the Commission does not form a prima facie opinion as provided
under sub-section (1B) of section 29, the combination shall be deemed to have been
approved and no separate order shall be required to be passed.

(2) Where the CCI is of the opinion that the combination has, or is likely to have, an
appreciable adverse effect on competition, it shall direct that the combination
shall not take effect. (#2)

(3) Where the Commission is of the opinion that any appreciable adverse effect on
competition that the combination has, or is likely to have, can be eliminated by
modification proposed by the parties or the Commission, as the case may be,
under sub-section (7) of section 29 or sub-section (2) or sub-section (3) of
section 29A, it may approve the combination subject to such modifications as it
thinks fit.
(4)Where a combination is approved by the Commission under sub-section (3), the
parties to the combination shall carry out such modification within such period as may
be specified by the Commission.
(5) Where—
(a) the Commission has directed under sub-section (2) that the combination
shall not take effect; or

BY - DEEPAK GAJRANI (The Academician)

JMD 39 The Competition Act, 2002

(b) the parties to the combination, fail to carry out the modification within
such period as may be specified by the Commission under sub-
section (4); or
(c) the Commission is of the opinion that the combination has, or is likely to
have, an appreciable adverse effect on competition which cannot be
eliminated by suitable modification to such combination,

then, without prejudice to any penalty which may be imposed or any prosecution which
may be initiated under this Act, the Commission may order that such combination
shall not be given effect to, or be declared void, or frame a scheme to be implemented
by the parties to address the appreciable adverse effect on competition, as the case
may be.

(6) If no order is passed or direction issued by the Commission in accordance with the
provisions of sub-section (1) or sub-section (2) or sub-section (3) or sub-section
(5), as the case may be, within a period of one hundred and fifty days from the date of
notice given to the Commission under sub-section (2) of section 6, the combination
shall be deemed to have been approved by the Commission.

(7) to (12) - Deleted.

(13) Where the CCI has ordered a combination to be void, the acquisition or
acquiring of control or merger or amalgamation referred to in section 5, shall be
dealt with by the authorities under any other law for the time being in force as if
such acquisition or acquiring of control or merger or amalgamation had not taken
place and the parties to the combination shall be dealt with accordingly.

(14) Nothing contained in this Chapter shall affect any proceeding initiated or which
may be initiated under any other law for the time being in force.

Reference by statutory authority - Sec. 21

(1) Where in the course of a proceeding before any statutory authority, an issue is
raised by any party that any decision which such statutory authority has taken or
proposes to take is or would be, contrary to any of the provisions of an Act, then
such statutory authority may make a reference in respect of such issue to CCI.

Provided that the Commission, may, suo motu, make a reference to a statutory authority
on any issue that involves provisions of an Act whose implementation is entrusted to
that statutory authority.

(2) On receipt of a reference above, the CCI shall give its opinion, within 60 days of
receipt of such reference, to such statutory authority which shall consider the opinion
of the CCI and thereafter, give its findings recording reasons therefor on the issues
referred to in the said opinion.

BY - DEEPAK GAJRANI (The Academician)

JMD 40 The Competition Act, 2002

Meetings of CCI (Sec.22)

CCI shall meet at such time and places, and observe such rules of procedure in
regard to the transaction of business at its meetings as as may be provided by the
regulations.

If Chairperson is unable to attend the meeting of CCI for any reason, senior most
member present at the meeting shall preside at the meeting.

All questions which came up before any meeting of CCI shall be decided by
majority of members present and voting, and in the event of equality of votes,
Chairperson or in his absence, the member presiding, shall have a second or
casting vote. Provided that quorum for such meeting shall be 3 members.

Sec. 32 - Acts taking place outside India but having an effect on competition
in India

The CCI shall, notwithstanding that,—

(a) an agreement referred to in section 3 has been entered into outside India; or
(b) any party to such agreement is outside India; or
(c) any enterprise abusing the dominant position is outside India; or
(d) a combination has taken place outside India; or
(e) any party to combination is outside India; or
(f) any other matter or practice or action arising out of such agreement or dominant
position or combination is outside India,

have power to inquire in accordance with the provisions contained in sections 19, 20,
26, 29, 29A and 30 of the Act into such agreement or abuse of dominant position or
combination if such agreement or dominant position or combination has, or is likely
to have, an appreciable adverse effect on competition in the relevant market in India
57 and pass such orders as it may deem fit in accordance with the provisions of this
Act.

Sec. 35 - Appearance before CCI

(1) A PARTY* or the Director General may either appear in person or authorise
one or more chartered accountants in practice or company secretaries in
practice or cost accountants in practice or legal practitioners or any of his or
its officers to present his or its case before the CCI.

Sec. 2 (ka) "party" includes a consumer or an enterprise or a person or an

information provider, or a consumer association or a trade association, or the
Central Government or any State Government or any statutory authority, as the
case may be, and shall include an enterprise or a person against whom any inquiry
or proceeding is instituted; and any enterprise or person impleaded by the CCI to
join the proceedings.

BY - DEEPAK GAJRANI (The Academician)

JMD 41 The Competition Act, 2002

(2) Without prejudice to sub-section (1), a party may call upon experts from the fields
of economics, commerce, international trade or from any other discipline to
provide an expert opinion in connection with any matter related to a case.

Power of CCI to regulate its own procedure (Sec. 36) - [J. 08]

(1) In the discharge of its functions, CCI shall be guided by the principles of natural
justice and, subject to the other provisions of this Act and of any rules made by
CG, the CCI shall have powers to regulate its own procedure.

(2) The CCI shall have, for the purposes of discharging its functions under this Act,
the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908(5 of 1908), while trying a suit, in respect of the following
matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him
on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) requisitioning any public record or document or copy of such record or
document from any office;

(3) The CCI may call upon such experts, from the fields of economics, commerce,
accountancy, international trade or from any other discipline as it deems
necessary, to assist the CCI in the conduct of any inquiry by it.

Sec. 38 - Rectification of orders

(1) With a view to rectifying any mistake apparent from the record, the CCI may
amend any order passed by it under the provisions of this Act.

(2) Subject to the other provisions of this Act, the CCI may make—

(a) an amendment under sub-section (1) of its own motion;

(b) an amendment for rectifying any such mistake which has been

brought to its notice by any party to the order.

Explanation — For the removal of doubts, it is hereby declared that the CCI shall not,
while rectifying any mistake apparent from record, amend substantive part of its
order passed under the provisions of this Act.

Sec. 39 - Execution of orders of CCI imposing monetary penalty

(1) If a person fails to pay any monetary penalty imposed on him under this Act, the
CCI shall proceed to recover such penalty, in such manner as may be specified
by the regulations.

(2) In a case where the CCI is of the opinion that it would be expedient to recover
the penalty imposed under this Act in accordance with the provisions of the
Income-tax Act, 1961 (43 of 1961), it may make a reference to this effect to the

BY - DEEPAK GAJRANI (The Academician)

JMD 42 The Competition Act, 2002

concerned income-tax authority under that Act for recovery of the penalty as tax
due under the said Act.

(3) Where a reference has been made by the CCI under sub-section (2) for recovery
of penalty, the person upon whom the penalty has been imposed shall be
deemed to be the assessee in default under the Income Tax Act, 1961 (43 of
1961) and the provisions contained in sections 221 to 227, 228A, 229, 231 and
232 of the said Act and the Second Schedule to that Act and any rules made
there under shall, in so far as may be, apply as if the said provisions were the
provisions of this Act and referred to sums by way of penalty imposed under this
Act instead of to income- tax and sums imposed by way of penalty, fine, and
interest under the Income–tax Act, 1961 (43 of 1961) and to the CCI instead of
the Assessing Officer.

Explanation 1 – Any reference to sub-section (2) or sub-section (6) of section 220 of

the income-tax Act, 1961 (43 of 1961), in the said provisions of that Act or the rules
made thereunder shall be construed as references to sections 43 to 45 of this Act.

Explanation 2 – The Tax Recovery Commissioner and the Tax Recovery Officer
referred to in the Income-tax Act, 1961 (43 of 1961) shall be deemed to be the Tax
Recovery Commissioner and the Tax Recovery Officer for the purposes of recovery of
sums imposed by way of penalty under this Act and reference made by the CCI
under sub-section (2) would amount to drawing of a certificate by the Tax Recovery
Officer as far as demand relating to penalty under this Act.

Explanation 3 – Any reference to appeal in Chapter XVIID and the Second Schedule
to the Income-tax Act, 1961 (43 of 1961), shall be construed as a reference to
appeal before the Competition Appellate Tribunal under section 53B of this Act.

Sec. 41 - Director General to investigate contravention

(1) The Director General shall, when so directed by the CCI, assist the CCI in
investigating into any contravention of the provisions of this Act or any rules or
regulations made thereunder.

(2) The Director General shall have all the powers as are conferred upon the CCI
under subsection (2) of section 36.

(3) Without prejudice to sub-section (2), it shall be the duty of all officers, other
employees and agents of a party which are under investigation—

(a) to preserve and to produce all information, books, papers, other documents
and records of, or relating to, the party which are in their custody or power to
the Director General or any person authorised by it in this behalf; and

(b) to give all assistance in connection with the investigation to the Director
General.

BY - DEEPAK GAJRANI (The Academician)

JMD 43 The Competition Act, 2002

Sec. 42 - Contravention of orders of CCI

(1) The CCI may cause an inquiry to be made into compliance of its orders or
directions made in exercise of its powers under the Act.

(2) If any person, without reasonable clause, fails to comply with the orders or
directions of the CCI issued under sections 6, 27, 28, 31, 32, 33, 42A, 43, 43A,
44, and 45 of the Act, he shall be liable to a penalty which may extend to rupees
one lakh for each day during which such non-compliance occurs, subject to a
maximum of rupees 10 crore, as the CCI may determine.

(3) If any person does not comply with the orders or directions issued, or fails to pay
the PENALTY imposed under sub-section (2), he shall, without prejudice to any
proceeding under section 39, be punishable with imprisonment for a term which
may extend to 3 years, or with fine which may extend to rupees 25 crore, or
with both, as the Chief Metropolitan Magistrate, Delhi may deem fit:

Provided that the Chief Metropolitan Magistrate, Delhi shall not take cognizance of
any offence under this section save on a complaint filed by the CCI or any of its
officers authorized by it.

Sec. 42A - Compensation in case of contravention of orders of CCI

Without prejudice to the provisions of this Act, any person may make an application
to the Appellate Tribunal for an order for the recovery of compensation from any
enterprise for any loss or damage shown to have been suffered, by such person as a
result of the said enterprise violating directions issued by the CCI or contravening,
without any reasonable ground, any decision or order of the CCI issued under
sections 6, 27, 28, 31, 32 and 33 or any condition or restriction subject to which any
approval, sanction, direction or exemption in relation to any matter has been
accorded, given, made or granted under this Act or delaying in carrying out such
orders or directions of the CCI.

Sec. 43 - Penalty for failure to comply with directions of CCI and Director
General

If any person fails to comply, without reasonable cause, with a direction given by—

(a) the CCI under section 36(2) or (4); or

(b) the Director General while exercising powers referred to in section 41(2),

such person shall be LIABLE TO PENALTY which may extend to rupees 1,00,000
for each day during which such failure continues subject to a maximum of rupees
1,00,00,000, as may be determined by the CCI.

Sec. 43A - Power to impose penalty for non-furnishing of information on

combinations

If any person or enterprise fails to give notice to the Commission under sub-section (2)
or sub-section (4) of section 6 or contravenes sub-section (2A) of section 6 or submit
information pursuant to an inquiry under sub-section (1) of section 20, the Commission

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JMD 44 The Competition Act, 2002

may impose on such person or enterprise, a penalty which may extend to one per cent., of
the total turnover or assets or the value of transaction referred to in clause (d) of section
5, whichever is higher, of such a combination:

Provided that in case any person or enterprise has given a notice under sub-section
(4) of section 6 and such notice is found to be void ab initio under sub-section (6) of
section 6, then a notice under sub-section (2) of section 6 may be given by the acquirer or
parties to the combination, as may be applicable, within a period of thirty days of the
order of the Commission under sub-section (6) of that section and no action under this
section shall be taken by the Commission till the expiry of such period of thirty days.

Sec. 44 - Penalty for making false statement or omission to furnish material

information

If any person, being a party to a combination,—

(a) makes a statement which is false in any material particular, or knowing it to be

false; or

(b) omits to state any material particular knowing it to be material,

such person shall be liable to a penalty which shall not be less than rupees
50,00,000 but which may extend to rupees 5,00,00,000, as may be determined by
the CCI.

Sec. 45 - Penalty for CONTRAVENTIONS in relation to furnishing of information

(1) Without prejudice to the provisions of sub-section (6) of section 6 and section 44, if
a person, who furnishes or is required to furnish under this Act any particulars,
documents or any information,—

(a) makes any statement or furnishes any document which he knows or has reason
to believe to be false in any material particular; or

(b) omits to state any material fact knowing it to be material; or

(c) wilfully alters, suppresses or destroys any document which is required to be

furnished as aforesaid,

such person shall be liable to a penalty which may extend to rupees 1,00,00,000
as may be determined by the CCI.

(2) Without prejudice to the provisions of sub-section (1), the CCI may also pass
such other order as it deems fit.

Sec. 46 - Power to impose lesser penalty

(1) The Commission may, if it is satisfied that any producer, seller, distributor, trader or
service provider included in any cartel, which is alleged to have violated section 3, has

BY - DEEPAK GAJRANI (The Academician)

JMD 45 The Competition Act, 2002

made a full and true disclosure in respect of the alleged violations and such disclosure is
vital, impose upon such producer, seller, distributor, trader or service provider a lesser
penalty as may be specified by regulations, than leviable under this Act or the rules or
the regulations made under this Act:
Provided that lesser penalty shall not be imposed by the Commission in cases where the
report of investigation directed under section 26 has been received before making of
such disclosure:
Provided further that lesser penalty shall be imposed by the Commission only in respect of
a producer, seller, distributor, trader or service provider included in the cartel, who has
made the full, true and vital disclosures under this section:
Provided also that lesser penalty shall not be imposed by the Commission if the person
making the disclosure does not continue to co-operate with the Commission till the
completion of the proceedings before the Commission:
Provided also that the Commission may, if it is satisfied that such producer, seller,
distributor, trader or service provider included in the cartel had in the course of
proceedings,—
a. not complied with the condition on which the lesser penalty was imposed
by the Commission; or
b. had given false evidence; or
c. the disclosure made is not vital,
and thereupon such producer, seller, distributor, trader or service provider may be
tried for the contravention with respect to which the lesser penalty was imposed
and shall also be liable to the imposition of penalty to which such person has been
liable, had lesser penalty not been imposed.
(2) The Commission may allow a producer, seller, distributor, trader or service provider
included in the cartel, to withdraw its application for lesser penalty under this section, in
such manner and within such time as may be specified by regulations.
(3) Notwithstanding anything contained in sub-section (2), the Director General and the
Commission shall be entitled to use for the purposes of this Act, any evidence submitted
by a producer, seller, distributor, trader or service provider in its application for lesser
penalty, except its admission.
(4) Where during the course of the investigation, a producer, seller, distributor, trader or
service provider who has disclosed a cartel under sub-section (1), makes a full, true and
vital disclosure under sub-section (1) with respect to another cartel in which it is alleged
to have violated section 3, which enables the Commission to form a prima facie opinion
under sub-section (1) of section 26 that there exists another cartel, then the Commission
may impose upon such producer, seller, distributor, trader or service provider a lesser
penalty as may be specified by regulations, in respect of the cartel already being investigated,
without prejudice to the producer, seller, distributor, trader or service provider obtaining lesser
penalty under sub-section (1) regarding the newly disclosed cartel.

BY - DEEPAK GAJRANI (The Academician)

 JMD 46 The Competition Act, 2002

Sec. 47 - Crediting sums realised by way of penalties to C.F.I.

All sums realised by way of penalties under this Act shall be credited to the
Consolidated Fund of India.

Sec. 48 - Contravention by companies

(1) Where a person committing contravention of any of the provisions of this Act or of
any rule, regulation, order made or direction issued thereunder is a company, every person
who, at the time the contravention was committed, was in charge of, and was
responsible to the company for the conduct of the business of the company, as well as
the company, shall be deemed to be in contravention of this Act and unless otherwise
provided in this Act, the Commission may impose such penalty on such persons, as it
may deem fit which shall not be more than ten per cent. of the average of the income for
the last 3 preceding financial years:
Provided that in case any agreement referred to in sub-section (3) of section 3 has
been entered into by a cartel, the Commission may unless otherwise provided in this
Act, impose upon such persons referred to in sub-section (1), a penalty of up to ten per
cent. of the income for each year of the continuance of such agreement.
(2) Nothing contained in sub-section (1) shall render any such person liable to any
penalty if he proves that the contravention was committed without his knowledge or
that he had exercised all due diligence to prevent the commission of such
contravention.
(3) Notwithstanding anything contained in sub-section (1), where a contravention
of any of the provisions of this Act or of any rule, regulation, order made or
direction issued thereunder has been committed by a company and it is proved
that the contravention has taken place with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary or
other officers of the company, such director, manager, secretary or other officers
shall also be deemed to be in contravention of the provisions of this Act and
unless otherwise provided in this Act, the Commission may impose such penalty
on such persons, as it may deem fit which shall not be more than ten per cent. of
the average of the income for the last three preceding financial years:
Provided that in case any agreement referred to in sub-section (3) of section 3
has been entered into by a cartel, the Commission may, unless otherwise
provided under this Act, impose upon such person a penalty as it may deem fit
which shall not exceed ten per cent. of the income for each year of the
continuance of such agreement.
Explanation.—For the purposes of this section,—

BY - DEEPAK GAJRANI (The Academician)

JMD 47 The Competition Act, 2002

(a) "company" means a body corporate and includes a firm or other association
of individuals;
(b) "director", in relation to a firm, means a partner in the firm;
(c) "income", in relation to a person, shall be determined in such manner as may be
specified by regulations.

COMPETITION ADVOCACY

Competition advocacy (Sec. 49) [D. 06, J. 10, 13]

(1) CG may, in formulating a policy on competition (including review of laws related

to competition) or on any other matter, & SG may, in formulating a policy on
competition or on any other matter, make a reference to CCI for its opinion on
possible effect of such policy on competition and on receipt of such a reference,
CCI shall, within 60 days of making such reference, give its opinion to CG/SG,
which may thereafter take further action as it deems fit.

(2) The opinion given by CCI shall NOT BE BINDING upon CG or SG, in
formulating such policy.

(3) CCI shall take suitable measures, for the promotion of competition advocacy or
culture, creating awareness and imparting training about competition issues.

FINANCE, ACCOUNTS AND AUDIT

Grants by CG (SEC.50)

CG may, after due appropriation made by Parliament by law in this behalf, make to
the CCI grants of such sums of money as the Government may think fit for being
utilised for the purposes of this Act.

Constitution of Fund (Sec.51)

(1) There shall be constituted a fund to be called the "Competition Fund" and there
shall be credited thereto—
(a) all Government grants received by the CCI;
(b) DELETED;
(c) the fees received under this Act;
(d) the interest accrued on the amounts referred to in clauses (a) and (c).
(2) The Fund shall be applied for meeting—
(a) the salaries and allowances payable to the Chairperson and other Members
and the administrative expenses including the salaries, allowances and
pension payable to the Director General, Additional, Joint, Deputy or Assistant
Directors General, the Registrar and officers and other employees of the CCI;
(b) the other expenses of the CCI in connection with the discharge of its
functions and for the purposes of this Act.
(3) The Fund shall be administered by a committee of such Members of the CCI
as may be determined by the Chairperson.

BY - DEEPAK GAJRANI (The Academician)

JMD 48 The Competition Act, 2002

(4) The committee shall spend monies out of the Fund for carrying out the objects
for which the Fund has been constituted.

Accounts and Audit (Sec.52)

(1) The CCI shall maintain proper accounts and other relevant records and prepare
an annual statement of accounts in such form as may be prescribed by CG in
consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the CCI shall be audited by the Comptroller and Auditor-General
of India at such intervals as may be specified by him and any expenditure
incurred in connection with such audit shall be payable by the CCI to the
Comptroller and Auditor-General of India.

Sec. 53B - Appeal to Appellate Tribunal

(1) The Central Government or the State Government or a local authority or

enterprise or any person, aggrieved by any direction, decision or order passed
by the Commission under section 26(2) and (6), section 27, section 28, section
31, section 32, section 33, section 38, section 39, section 43, section 43A,
section 44, section 45 or section may prefer an appeal to the Appellate
Tribunal.

(2) Every appeal under sub-section (1) shall be filed within a period of 60 days from
the date on which a copy of the direction or decision or order made by the
Commission is received by the Central Government or the State Government or
a local authority or enterprise or any person referred to in that sub-section and it
shall be in such form and be accompanied by such fee as may be prescribed:

Provided that the Appellate Tribunal may entertain an appeal after the expiry of
the said period of 60 days if it is satisfied that there was sufficient cause for not
filing it within that period.

(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after
giving the parties to the appeal, an opportunity of being heard, pass such orders
thereon as it thinks fit, confirming, modifying or setting aside the direction,
decision or order appealed against.

(4) The Appellate Tribunal shall send a copy of every order made by it to the
Commission and the parties to the appeal.

(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be
dealt with by it as expeditiously as possible and endeavour shall be made by it to
dispose of the appeal within 6 months from the date of receipt of the appeal.

Sec. 53S - Right to legal representation

(1) A person preferring an appeal to the Appellate Tribunal may either appear in
person or authorize one or more chartered accountants or company secretaries
or cost accountants or legal practitioners or any of its officers to present his or
its case before the Appellate Tribunal.

BY - DEEPAK GAJRANI (The Academician)

JMD 49 The Competition Act, 2002

(2) The Central Government or a State Government or a local authority or any

enterprise preferring an appeal to the Appellate Tribunal may authorize one or
more chartered accountants or company secretaries or cost accountants or legal
practitioners or any of its officers to act as presenting officers and every person
so authorized may present the case with respect to any appeal before the
Appellate Tribunal.

(3) The CCI may authorize one or more chartered accountants or company
secretaries or cost accountants or legal practitioners or any of its officers to act
as presenting officers and every person so authorized may present the case with
respect to any appeal before the Appellate Tribunal.

Explanation – The expressions “chartered accountant” or “company secretary” or

“cost accountant” or “legal practitioner” shall have the meanings respectively
assigned to them in the Explanation to section 35.

Sec. 53T - Appeal to Supreme Court

The Central Government or any State Government or the CCI or any statutory
authority or any local authority or any enterprise or any person aggrieved by any
decision or order of the Appellate Tribunal may file an appeal to the Supreme Court
within sixty days from the date of communication of the decision or order of the
Appellate Tribunal to them;

Provided that the Supreme court may, if it is satisfied that the applicant was
prevented by sufficient cause from filing the appeal within the said period, allow it to
be filed after the expiry of the said period of 60 days.

Sec. 53U - Power to Punish for contempt

The Appellate Tribunal shall have, and exercise, the same jurisdiction, powers
and authority in respect of contempt of itself, as a High Court has and may exercise
and, for this purpose, the provisions of the Contempt of Courts Act, 1971 shall have
effect subject to modifications that,-

(a) the reference therein to a High Court shall be construed as including a reference
to the Appellate Tribunal;

(b) the references to the Advocate-General in section 15 of the said Act shall be
construed as a reference to such Law Officer as the Central Government may, by
notification, specify in this behalf.

Sec. 55 - Power of Central Government to issue directions

(1) Without prejudice to the foregoing provisions of this Act, the CCI shall, in
exercise of its powers or the performance of its functions under this Act, be
bound by such directions on questions of policy, other than those relating to
technical and administrative matters, as the Central Government may give in
writing to it from time to time:

Provided that the CCI shall, as far as practicable, be given an opportunity to

express its views before any direction is given under this sub- section.

BY - DEEPAK GAJRANI (The Academician)

JMD 50 The Competition Act, 2002

(2) The decision of the Central Government whether a question is one of policy or
not shall be final.

Power of CG to supersede the CCI (Sec.56)

(1) If at any time CG is of the opinion -

(a) that on account of circumstances beyond the control of the CCI, it is unable to
discharge the functions or perform the duties imposed on it by or under the
provisions of this Act; or
(b) that the CCI has persistently made default in complying with any direction given
by CG under this Act or in the discharge of the functions or performance of the
duties imposed on it by or under the provisions of this Act and as a result of such
default the financial position of the CCI or the administration of the CCI has
suffered; or
(c) that circumstances exist which render it necessary in the public interest so to do,
the Central Government may, by notification and for reasons to be specified
therein, supersede the CCI for such period, not exceeding 6 months, as may be
specified in the notification :

Provided that before issuing any such notification, CG shall give a reasonable
opportunity to the CCI to make representations against the proposed
supersession and shall consider representations, if any, of the CCI.

(2) Upon the publication of a notification under sub-section (1) superseding the
CCI,—

(a) the Chairperson and other Members shall as from the date of supersession,
vacate their offices as such;
(b) all the powers, functions and duties which may, by or under the provisions of
this Act, be exercised or discharged by or on behalf of the CCI shall, until the
CCI is reconstituted under sub-section (3), be exercised and discharged by
CG or such authority as CG may specify in tins behalf;
(c) all properties owned or controlled by the CCI shall, until the CCI is
reconstituted under sub-section (3), vest in CG.

(3) On or before the expiration of the period of supersession specified in the

notification issued under sub-section (1), CG shall reconstitute the CCI by a fresh
appointment of its Chairperson and other Members and in such case any person
who had vacated his office under clause (a) of sub-section (2) shall not be
deemed to be disqualified for re-appointment.

(4) CG shall cause a notification issued under sub-section (1) and a full report of any
action taken under this section and the circumstances leading to such action to
be laid before each House of Parliament at the earliest.

Restriction on disclosure of information - Sec. 57

No information relating to any enterprise, being an information which has been

obtained by or on behalf of the CCI or CAT for the purposes of this Act, shall, without

BY - DEEPAK GAJRANI (The Academician)

JMD 51 The Competition Act, 2002

the previous permission in writing of the enterprise, be disclosed otherwise

than in compliance with or for the purposes of this Act or any other law for the time
being in force.

Chairperson, Members, Director General, Secretary, officers and other

employees, etc. of CCI to be PUBLIC SERVANTS - 58

The Chairperson and other Members and the Director General, Additional, Joint,
Deputy or Assistant Directors General and Secretary and officers and other
employees of the CCI and the Chairperson, Members, officers and other employees
of CAT shall be deemed, while acting or purporting to act in pursuance of any of
the provisions of this Act, to be public servants within the meaning of section 21 of
the Indian Penal Code.

Protection of action taken in good faith – Sec. 59

No suit, prosecution or other legal proceedings shall lie against CG or CCI or any
officer of CG or the Chairperson or any Member or the Director General, Additional,
Joint, Deputy or Assistant Directors General or SECRETARY or officers or other
employees of the CCI OR the Chairperson, Members, officers and other employees of
CAT, for anything which is in good faith done or intended to be done under this Act
or the rules or regulations made thereunder.

Act to have overriding effect – Sec. 60

The provisions of this Act shall have effect notwithstanding anything
INCONSISTENT therewith contained in any other law for the time being in
force.

Exclusion of jurisdiction of civil courts – Sec.61

No civil court shall have jurisdiction to entertain any suit or proceeding in
respect of any matter which the CCI or CAT is empowered by or under this Act to
determine and no injunction shall be granted by any court or other authority in
respect of any action taken or to be taken in pursuance of any power conferred by or
under this Act.

Application of other laws not barred – Sec.62

The provisions of this Act shall be in addition to, and not in derogation of, the
provisions of any other law for the time being in force.

Power to make rules [Section 63]

(1) CG may, by notification, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:-—
(a) the term of the Selection Committee and manner of selection of panel under
sec.9(2)
(b) the form and manner in which and the authority before whom the oath of
office and of secrecy shall be made and subscribed to under section 10(3).
(d) the salary and the other terms and conditions of service including travelling
expenses, house rent allowance and conveyance facilities, sumptuary

BY - DEEPAK GAJRANI (The Academician)

JMD 52 The Competition Act, 2002

allowance and medical facilities to be provided to the Chairperson and other

Members under section 14(1).
(da) the number of Additional, Joint, Deputy or Assistant DG or such officers or
other employees in the office of DG & the manner of their appointment under
sec. 16.
(e) the salary, allowances and other terms and conditions of service of the DG,
Additional, Joint, Deputy or Assistant DG or such officers or employees under
section 16(3).
(f) the qualifications for appointment of the DG, Additional, Joint, Deputy or
Assistant DG or such officers or employees under section 16(4).
(g) the salaries and allowances and other terms and conditions of service of the
Registrar and officers and other employees payable, and the number of such
officers and employees under section 17(2).

Sec. 64 - Power to make regulations

(1) The CCI may, by notification, make regulations consistent with this Act and the
rules made thereunder to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing provisions,
such regulations may provide for all or any of the following matters, namely:—

(a) the cost of production to be determined under clause (b) of the Explanation to
section 4;

(b) the form of notice as may be specified and the fee which may be determined
under section 6(2);

(c) the form in which details of the acquisition shall be filed under Section 6(5);

(d) the procedures to be followed for engaging the experts and professionals under
section 17(3).

---*---

Q. Do the following amount to anti–competitive agreements? Give reasons in support

of your answer: [2005 – Dec]

(i) An agreement requiring a distributor not to sell the goods of the manufacturer in
the states other than Gujrat and Maharashtra.

(ii) A stipulation in an agreement that the dealer shall not sell the goods below the
stipulated price.

(iii) An agreement containing a clause that there will be discontinuation in the supply
of goods if the dealer is also dealing in the products of supplier’s competitors.

(iv) An agreement stipulating the source of raw material for ensuring the quality of
goods to be exported.

Ans: Sec. 3 of deals with anti–competitive agreements.

BY - DEEPAK GAJRANI (The Academician)

JMD 53 The Competition Act, 2002

(i) Yes, such an agreement to allocate area is considered as exclusive

distribution agreement u/s 3(4)(c); and it is a kind of anti–competitive
agreement.

(ii) Yes, according to Sec. 3(4)(e) if an agreement stipulates that the dealer shall
not sell the goods below the stipulated price, it is considered as resale price
maintenance, and hence it is anti–competitive agreement.

(iii) Yes, such an agreement is considered as exclusive supply agreement u/s

3(4)(c) which is a kind of anti–competitive agreement.

(iv) No, such an agreement containing clause for maintaining the quality of goods
by specifying source of raw material cannot be regarded as a restrictive trade
practice. The reason behind such a stipulation in the agreement is to ensure
that quality may not deteriorate.

---*---

NOTE -

Central Government exempts all cases of combinations under section 5 of the

Competition Act involving the Central Public Sector Enterprises (CPSEs)
operating in the Oil and Gas Sectors -

MCA Notification – Dated 22 Nov. 2017 –

In exercise of the powers conferred by Section 54(a) of the Competition Act,

2002, the Central Government in the public interest hereby exempts all cases of
combinations under section 5 involving the Central Public Sector Enterprises (CPSEs)
operating in the Oil and Gas Sectors under the Petroleum Act, 1934 and the
rules made thereunder or under the Oilfields (Regulation and Development)
Act, 1948 and the rules made thereunder, along with their wholly or partly
owned subsidiaries operating in the Oil and Gas Sectors, from the application of
the provisions of sections 5 and 6 of the Act, for a period of five years from the
date of publication of this notification in the Official Gazette.

---*---

BY - DEEPAK GAJRANI (The Academician)

 Competition Act, 2002
CS Executive
and
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