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This post, the runner up entry of the RFMLR-CAM Blog Series Competition on Emerging Trends and Developments in the Competition Law Regime, is authored by Akul Mishra, third-year student of Jindal Global Law School (JGLS).
Introduction
This blog analyzes the new settlement provisions introduced by Section 48A of the Competition (Amendment) Act, 2023. Section 48A of the Competition (Amendment) Act, 2023 has introduced the provision of settlement, with the onus of initiating the settlement being on the enterprise. The provision allows for any enterprise to offer (as an application) a settlement with the Competition Commission of India (CCI) after they receive an investigative report from the Director General as per Section 26(4) of the Competition Act, 2002. Thus, the process is an effort for faster case disposal, as the violator takes the onus of fixing the issue highlighted in the report. The draft Competition Commission of India (Settlement) Regulations, 2023 (draft settlement regulations) framed by the CCI have introduced several provisions for conducting proceedings from a settlement application. This blog, through a deep analysis, points out procedural gaps in the regulations and the new statutory provision, that could hurt several stakeholders in Indian competition law including, the CCI itself, the aim of effective case disposal, enterprise participation, and the public. Further, this blog aims to emphasize clarity and consistency in Section 48A and the regulations, to ensure that enterprises consider taking the new provisions as a viable option, instead of opting for litigation, which may take years to finally conclude, which would undermine the legislative intent behind Section 48A.
Optimal Issues in the Settlement Provision under Section 48A
1. Appeals under Section 53B being barred from applying to Settlement Orders
Section 48A explicitly bars any appeals to the appellate tribunal under Section 53B from any settlement order. This is a legislative push for quick adjudication, as first, the onus is on the enterprise to apply for such reliefs. Further, there should ideally be no situation where an enterprise will appeal against a settlement order agreeing to its application. The procedure for settlements is to be governed by appropriate regulations, which are still in draft. The draft settlement regulations, particularly Reg 4(2) and Reg 4(5)(d) allow for the settlement application to be revised if the CCI finds the same unacceptable prima facie or after due consideration of the comments/objections invited, as required by Reg 5 of the regulations. Thus, the enterprise has several chances, although up to the discretion of the CCI, to offer an acceptable settlement application. If the CCI feels that the threshold of the settlement application is too high, considering the nature of the offence, or any other considerations that it is bound to consider under Reg 8, then the regulations and the amendment have correctly laid down the finality of a rejection of a settlement order under Section 48A (5). Thus, a settlement gives finality to the issue, such that the damages to the markets are rectified. An appeal against such a process breaks the reason behind introducing the new provisions in the first place.
However, the issue arises from the context that third parties are also barred from appealing to the tribunal against a settlement order. The argument that may support this unintended consequence, is that allowing third-party appeals will open a plethora of cases for the Appellate Tribunal, the NCLAT, inadvertently hurting the intent behind increasing adjudication efficiency. Further, the CCI has the power to revoke the settlement order, if it finds any contravention of the same violation or any misrepresentation or any material change in facts, under Section 48C and can use third-party agencies for implementation as per Regulation 10 if it believes that the sole activities by the enterprise are not enough. The only method by which third parties can bring up their grievances is by giving objections if they come under the very wide meaning of “any other party” under Reg 5(1). It seems unlikely, however, that objections will be invited from the public at large. Damages from anti-competitive practices will not affect individuals alone. Thus, it is unlikely that a settlement order will manage to cover each contravention, as some may incidentally escape the CCI’s glare. The unilateral emphasis on the CCI’s discretion is contrary to a no-error probability. Errors that may be innocently missed can be addressed by public participation, which is missing in both the statutes and the regulations. The section should allow for appeals, as it is then giving way for a platform by which any party, especially the public, can approach the tribunal and prove that a contravention was still underway even after a settlement order was passed. This would help reduce errors as an ex-post precedent, rather than a gamble for zero margin of error that the current section and regulations provide for.
2. The Issue in the Blockade Faced by the Public in Settlement Proceedings
Objections to the settlement application are allowed by ‘any other party’ under Reg 5(1). However, there is no clarity if any other party could be a party away from a combination that is violating Competition Law or if any person or the public is included in the meaning of any other party. If the answer is positive, then it would be optimal to post a summary of the contraventions for public access. The non-confidential information summary is required to be prepared by the CCI under Reg 5(1) for objections. If made public, it would still display sensitive details about the company’s violative actions, effectively dissuading the company from ever taking the option of settlement. It seems unlikely that every party would mean every public person, else public access to any such information seems to trivialize the intent behind settlements. Further, Reg 5(2) is framed by necessitating support by documents, which is unlikely to constitute information provided by public persons. An analogy with Section 19 shows the words used ‘receipt of a complaint’ to prompt an inquiry. The same elusive language for public complaints is missing in Reg 5(1) of the settlement regulations. Thus, the public is likely to be barred from making comments and objections to the settlement proposal. This leads to an overwhelming dependence on the CCI’s investigation resources to ensure that the settlement is successful in terms of redemption and improvement. The information provided to CCI by three independent informants caused the initiation of the inquiry, and then the Rs 133776 crore penalty to Google for anti-competitive practices in Android devices. This further amplifies that even the highest stakeholder cases require public participation, the latter cannot be trivialized on account of cutting down on cases at the appellate tribunal.
3. The counter-productive dependence on the CCI’s discretion
The margin of error being extremely low, puts intense pressure on the regulator, which cannot dedicate all its resources to one single order considering the short period that it must follow. Further, assessing damages to the public, which is a consideration that must be accounted for under the ‘nature of offence’ threshold in a settlement application, seems to be missing any public participation, unless the complaint was from the public and hence, becomes any party (without the aforementioned public access requirement). It is reported that the CCI is suffering from resource woes, and staff shortages, and the utmost dependence on the CCI’s discretion is a path to overwhelming failure and higher chances of errors and flaws. Appointments have been slow, which is contrary to the vast emphasis on CCI’s interpretation rather than on statute or regulation. If the settlement order is allowed, but the enterprise still damages the market and the public, the only possible redressal is for any public person to approach the CCI and prompt them to investigate under Section 19, with the possibility to revoke the order, rather than directly appealing the same. Thus, the lack of any appellate provision is a serious issue, because it puts an assumption that there would be no margin for error in a settlement order and closes off any public participation in the process as well, unless they are related to the investigation under Section 3(4) and Section 4 of the Competition Act, 2002.
Issues and violations listed under Section 3(4), including output restrictions, exclusive supply and distribution, hurt consumers, which are the public, who have no participation. Section 4 disallows abuse of dominant positions as such actions affect consumers in exerting choices, and heeding them to unfair prices, restricting them to unchecked control. Thus, the lack of grievance redressal is an issue for the damaged public, in case the settlement order does not redeem damages to a satisfactory point, which escapes the scrutiny of the CCI. One dilution could be to make third-party agency monitoring a compulsory option provided by Regulation 10, but there is no guarantee that a report by third-party agencies can accurately state that the enterprise is not violating any guidelines, and not doing any damage to the public. This is because the damage to the public, is felt by consumers at large, which monitoring committees cannot fulfill, as they may stick to a single data analysis only, which misses key social divisions such as income inequality and gender. Several socio-economic effects of anti-competitive practices will only be raised by the public that faces the damage. Consumers are more than just data, which emphasizes the importance of public participation. Thus, downsizing the importance of appeals seems counter-productive, as several new informants will approach the CCI, causing new investigations, and a general waste of resources. The assumption is that the CCI has no margin for error which has no evidentiary basis and seems impossible considering the high number of consumers in the country and the diversified market economy. The only method to avoid this, without change, is to greatly increase the strength of the CCI in workforce and resources, which is not easy to process. Public interest in competition law has suggested developments to calculate losses on income graphs, and not solely on aggregate losses. In increasing improved advocacy for competition law to help improve inequality in markets, the step could be prioritizing cases but not removing grievance redressal through appellate jurisdictions completely, especially when developments in competition law are now being seen as a gradual push for removing inequality worldwide. The only option is to wait for the settlement order to be passed and provide information to the CCI that it may have missed optimal information. This may prompt the CCI to revoke the order under Section 48C on the information that may allege contraventions currently occurring. Even if this would hurt the factual basis of the settlement order, the result may be positive for effective improvement.
4. Regulation deficiencies in revocations of Settlement Orders
Revocation of settlement orders is governed by Section 48C and Reg 11. The language used in both is interpretative, where the CCI has the discretion to allow for revocation on the condition that there has been a material change of fact, a withholding of information or non-compliance. However, there are no rules regarding what the CCI should perform, whether it is by accepting third-party complaints, depending on informants, or conducting its investigations. The strict language in Section 53(B), which allows for an appeal by any person, does provide a better guarantee for the principles of natural justice, rather than the CCI’s discretion, which can miss or in a negative light, ignore some information. Thus, another route could be for the revocation of settlement orders to have a clause accepting third-party information. This would then allow for a procedural process for third-party informants and complaints regarding settlement orders. The reason why there must be a clause dedicated to such cases, and not include the same under a very liberal interpretation of ‘comes to the notice’ under Section 48C is accountability. Consumers are valid stakeholders, and the wide discretionary powers given to the CCI in deciding such information must include accountability, especially when appeals are explicitly barred. Thus, Reg 10 could be framed to provide instructions to the CCI on dealing with third-party complaints alleging contravention or a change in facts against a settlement order, and how it must decide on whether they would result in a revocation of the order. This would assess the CCI in ensuring the facts remain consistent, instead of placing the sole pressure on the CCI to validate all facts.
Conclusion
The provisions of settlements and commitments are a definite push for Indian Competition Law to meet global outlooks, in terms of efficient improvements and faster adjudication. However, as noted from the several procedural gaps, there is a major dependence on the CCI’s discretion, to dilute the lack of clarity and procedural gaps. The CCI is the only regulator governing competition law in the country, and the little to no margin of error given by the provision is counterproductive. The CCI itself has pressure from staff shortages and resource woes, which makes the dependence on the discretion of the regulator very idealistic. There must be a definite balance between all stakeholders, including the public interest, enterprise participation, and the CCI in every supporting regulation. The various legislations and provisions unfortunately cause a tip in the balance for one stakeholder, to the disadvantage of the other stakeholder, hurting the intent behind introducing the settlement provision. Thus, if there are several procedural gaps covered by legislative endorsement, the CCI’s performance will not be under pressure from a no-margin-of-error spectrum. Quicker case disposal and improvement in contraventions affecting the market would be an easier results to achieve. Resources will be ideally effectively distributed in maintaining antitrust regulations in India, with effective adjudication meeting improvements in the Indian market economy. Quick fixes in the market are ideal for consumers, who are damaged by anti-competitive practices, but cutting off public participation is not the ideal method.