Competition Act, 2008

Case Study : HORIZONTAL AGREEMENTS OR CARTELS

1. COLLUSIVE PRICE FIXING BY BOATERS:
Siem Reap in Cambodia is a very popular tourist town, which houses the famous Angkor Vat temples.
There are three means of transportation from Phnom Penh to Siem Reap boat, road and air. The
competition between boat companies has been intense and the prices came down from US $ 10 to US $ 5.
The boaters discussed among themselves and resolved that they will charge US $ 10 from Khmer
nationals and US $ 20-25 from foreigners. They further agreed that they would not compete with each
other and would share their departure schedules. There was no written agreement and only an
understanding and it constitutes a cartel agreement.
2. VITAMINS CARTEL:
Leading producers of vitamins including Roche AG and BASF of Germany, Rhone-Poulenc of France,
Takeda Chemical of Japan formed a cartel dividing up the world market and price fixing for different
types of vitamins during the 1990s. The cartel operated for over 10 years and later prosecuted with the
help of Rhone-Poulenc which defected from cartel and cooperated with US authorities. Roche paid fines
of US $ 500 million and total fine collected exceeded US $ 1 billion in the US alone. The overcharges
paid by 90 countries importing vitamins were estimated t o the tune of US $ 2700 million during the
1990s. The analysis also revealed that jurisdictions with weak cartel enforcement regime suffered more.
Damage wise, India incurred overcharges of more than US$ 25 million.
3. LYSINE CARTEL:
Lysine is an amino acid that stimulates growth and results in leaner muscle development in dogs, poultry
and fish. It is also mixed with corns and is an input for feed products. Between 1992 and 1995, five
producers belonging to Japan, Korea and US controlling more than 97% of the global capacity engaged in
price fixing, allocation of sales quota and monitoring of volume agreements. The DoJ undertook searches
with the cooperation of FBI and on the basis of documents together with tape recordings of meeting of the
conspirators could make out a strong case of colluding on lysine prices around the world for three years.
4. CEMENT CARTEL:
Five cement companies in Argentina were prosecuted for operating a cartel that lasted for 18 years from
1981 to 1999 and the Argentine Authority imposed a total fine of US $ 107 million, which is more than
three times the highest fine assessed by Argentine Authority in any previous case. Rumania also fined
total EUR 28,500,000 on its three cement companies for their participation in a cement cartel and the fine
represented 6% of the companies annual turnover.
5. AIRLINES CARTEL:
The Competition Commission in South Africa referred to its Competition Tribunal, a case alleging that
four airline companies had conspired to simultaneously announce in May, 2004 a fuel surcharge in
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identical amounts. After the investigation, prompted by news reports of the price increase, an airline
applied to the Commission for leniency under the Commissions Corporate Leniency Policy. The
applicant cooperated with the Commission and was not cited as a respondent and the Commission
recommended a fine up to 10% of the turnover of each of the respondent.
6. Cement cartel: Cos penalised Rs 6,200 cr
The Indian Express: New Delhi, Thu Jun 21 2012, 17:08 hrs
Competition watchdog CCI today imposed a hefty penalty of about Rs 6,200 crore on 11 leading cement
companies including ACC, Ambuja Cements, Ultratech and Jaypee Cements for price cartelisation.
The other companies found guilty are Grasim Cements now merged with Ultratech Cements, Lafarge
India, JK Cement, India Cements, Madras Cements, Century Cements and Binani Cements. The industry
body Cement Manufacturers Association (CMA) has also been fined.
The firms in violation of the competitive laws have been directed to deposit the penalty within 90 days.
"The Competition Commission of India has found cement manufacturers in violation of the provisions of
the Competition Act, 2002 which deals with anti-competitive agreements including cartels." an official
statement said.
The penalty is equivalent to 50 per cent of their profit for 2009-10 and 2010-11, it added.
The CCI passed the order following a probe by Director General of Investigation on complaint filed by
Builders Association of India.
"While imposing penalty, the Commission has considered the parallel and coordinated behaviour of
cement companies on price, dispatch and supplies in the market," the statement said.
The CCI found that the cement companies have not utilised the available capacity so that there are
reduced supplies in the market and they can raise prices in times of higher demand.
CCI felt that the act of these cement firms in "limiting and controlling supplies in the market and
determining prices through an anti-competitive agreement is not only detrimental to the cause of the
consumers but also to the whole economy since cement is a crucial input in construction and
infrastructure industry vital for economic development of the country".
The 11 cement companies have been directed to 'cease and desist' from indulging in any activity relating
to agreement, understanding or arrangement on prices, production and supply of cement in the market, the
statement said.
The industry body CMA has been asked to disassociate itself from collecting wholesale and retail prices
through the member cement companies and also from circulating the details on production and dispatches
of cement companies to its members.
VERTICAL AGREEMENTS

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Case Study 1: Tie in Sales

1. A Company whose main and famous product is the tooth paste, having a significant market share,
instructs its distributor and wholeseller, that in future they have to compulsorily purchase and
keep stock of the tooth brush being manufactured by the company, if they want to purchase the
toothpaste.
2. A cooking gas company has put a notice at its office, that the new connection will only be issued
to the customers if they are ready to buy kitchens gadgets (like pressure cooker, Juice Mixer, etc.)
worth Rs. 3500/Case Study 2: Exclusive Supply Agreements
Where manufacturer asks a dealer not to deal in similar products of its competitors and discontinue the
supply on the ground that dealer also deals in product of suppliers competitors goods is an illustration of
exclusive supply agreements.
For example,
1. Jindal Steel & Power Limited alleged that the Steel Authority of India Limited (SAIL) had
entered into an Exclusive Supply Agreement with Indian Railways (IR), for supply of long rails.
JSPL alleged that SAIL had abused its dominant position in the market and deprived others of fair
competition.
2. Pandrol Rahee Technologies Limited, is a designer and manufacturer of rail fastening systems
which are used on regular mail line railways, high speed lines, mixed passenger and freight lines,
light rail and metro tracks, alleged that there has been a consistent effort by the Delhi Railway
Metro Corporation to nominate exclusively, the product of M/s Patil Vossloh Rail Systems Pvt.
Ltd. for ballast less track on the metro rail projects to commissioned in any part of India wherever
DMRC was in a position to make technical recommendations through Detailed Project Report
(DPR).
3. This is a case of Public procurement. Coal India Limited is a public sector undertaking having a
near monopoly of production of coal. For the production of coal, purchase of explosives are
necessary. This case is of procurement of explosives by Coal India Limited. Incidentally, Coal
India Limited consumes 60% of the total of all the explosives consumed in India. The
complainant contented that Coal India Limited entered into a 5 year contract with Indian Oil
Corporation and Indo Burma Petroleum on nomination basis and without calling tender for the
supply of explosives amounting to 20%of total explosive consumed by Coal India.
4. For instance, the CCI challenged exclusive dealing contracts used by a manufacturer of artificial
teeth with a market share of at least 75 percent. These exclusive contracts with key dealers
effectively blocked the smaller rivals from getting their teeth sold to dental labs, and ultimately,
used by dental patients. In similar situations, newcomers may face significant additional costs and
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time to induce dealers to give up the exclusive agreements with the leading firm, or to establish a
different means of getting its product before consumers. The harm to consumers in these cases is
that the monopolist's actions are preventing the market from becoming more competitive, which
could lead to lower prices, better products or services, or new choices.
5. Competition watchdog CCI is investigating allegations of anti-competitive practices by a section
of car makers. In 2011, a complaint had been filed against international car makers, accusing
them of abusing their dominant market position by selling auto parts to customers at high prices.
The complainant said the car makers were abusing their dominant position by making available
spare parts only through their authorised dealers, who in turn sell them on high rates.
6. Competition Commission of India (CCI) is investigating anti-competitive practices by car
makers, the government said on Thursday, without naming the companies in question. The CCI
had received information against some car makers, A report in the Economic Times newspaper
on Wednesday, citing unnamed sources, said the CCI was looking into a practice whereby
automakers do not allow dealers to sell other brands.
7. In case of TELCO v. RRTA, the issue of exclusive dealings and territorial restrictions imposed on
dealers came up for consideration before Honble Supreme Court. The facts of the case are that
TELCO imposed restrictions on its dealers not to distribute vehicles in any territory, except the
territory allotted to each one of them. The argument of TELCO was that appointment of exclusive
dealers in territories results in better after-sale services. The Supreme Court accepted the
argument of TELCO and held that after-sale services holds great importance for the reputation of
a company. Further, heavy investment is required to be made for stocking of heavy machines,
spare parts and maintenance of service station. Supreme Court concluded that the exclusive
dealership did not impede competition.
8. In case of RRTA v. Swadeshi Mills Co. Ltd. The Monopoly and Restrictive Trade Commission
initiated enquiry against the company. The facts are that there was exclusive dealing agreement
with a stockist who opened retail shop as approved by company. The Commission held that the
arrangement amounted to a restrictive trade practice of exclusive dealing covered section 33(1)(c)
of the Monopolies Act, but the said practice was allowed under section 38(1)(h) of the Act as the
adverse effect of exclusive arrangement was found to be negligible or marginal.
Case Study 3: Exclusive Distribution Agreements
Requiring a distributor not to sell the goods of the manufacturer beyond the prescribed territory is a good
example of exclusive distribution agreement.
Case Study 4: Refusal to Deal
In a case from the 1980's, the only newspaper in a town refused to carry advertisements from companies
that were also running ads on a local radio station. The newspaper monitored the radio ads and terminated
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its ad contracts with any business that ran ads on the radio. The Supreme Court found that the newspaper's
refusal to deal with businesses using the radio station strengthened its dominant position in the local
advertising market and threatened to eliminate the radio station as a competitor.
An agreement which provides that the franchisees will not deal in products and goods of similar nature
for a period of 5 years from the date of determination of agreement within a radius of 5 kms from
showroom. (In case of Titan Industries Limited, 2001), otherwise the company will not deal with the
franchisee.
Case Study 5: Resale Price Maintenance
Superduper Electronics sells DVD players to retail stores for $300. If Superduper requires the retailers to
charge customers $350, it is said to engage in resale price maintenance. Any retailer that charged less than
$350 would have violated its contract with Superduper.
At first, resale price maintenance might seem anticompetitive and, therefore, detrimental to society. Like
an agreement among members of a cartel, it prevents the retailers from competing on price. For this
reason, the courts have often viewed resale price maintenance as a violation of the Competition Law.
Case Study 6: Abuse of Dominance Position
1. Competition Commission of India passes order against DLF for abusing dominant position
The Financial Express, 2011
New Delhi: The Competition Commission of India (CCI) on Tuesday decided to impose a penalty of
around R630 crore on DLF, the countrys largest real estate firm, holding it guilty of abusing its dominant
position. According to sources, the penalty amounts to 7% of the companys average annual turnover of
the last three years. The competition watchdog has found DLF in violation of section 4(2) of the
Competition Act, 2002. The probe followed a complaint filed by the Belaire Owners Association.
Abuse of dominant position in this case is in respect of the basic necessity of housing. The earlier
deliberation on the elements and the extent of abuse make it clear that DLF has been grossly abusing its
dominant position, and that too against a vulnerable section of consumers, who have little ability to act or
organise against such abuse. The penalty, therefore, has to be commensurate with the severity of the
violation through such blatant abuse of dominance, the CCI said in its 237-page order.
When contacted, Rajeev Talwar, DLFs group executive director, told FE: We will examine the order
and explore all legal options. We continue to believe we have a strong case. Company officials said it
may move the Competition Appellate Tribunal (CAT) against the order.
The Section 4(2)(a) of the Competition Act, under which DLF has been found guilty, comes into play
when a company directly or indirectly imposes unfair or discriminatory conditions or prices with respect
to the purchase or sale of goods or services. This is the second such order in the past two months.
The CCI examined the DLF the matter for over a year before passing the order. The petition before CCI,
filed by Belaire Owners Association last year alleged that DLF failed to deliver the residential projects on
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time and put discriminatory and abusive clauses in the apartment agreement provided to the allottees. It
also says the builder is abusing its dominant position in the market. The complaint alleged that DLF
increased the number of floors in the apartment complex from the original figure given to the buyers. This
led to a significant increase in the number of apartments in Belaire from 384 to 564. Last September,
the Commission had imposed an ad interim stay on DLFs proposed luxury projects Park Plaza and
The Belaire in Gurgaon and had asked DLF not to cancel allotments of apartments. Back then, the CCI
also asked the realty major to refrain from creating third party rights. This came after complaints were
lodged by the Belaire Owners Association and Park Plaza Resident Welfare Association who alleged that
DLF had failed to deliver the residential flats on time by putting discriminatory and abusive clauses in
its agreements with the allottees.
2. CCI imposed Rs 55.5 cr fine on NSE for abusing dominant position
MUMBAI: The Competition Commission of India (CCI) has prepared a 245-page dossier detailing how
the National Stock Exchange (NSE) has over several years abused its dominant position and financial
muscle to kill competition in the country's stock exchange space.
The investigation, carried out by a director general (DG) of CCI, has found that NSE violated Section
4(2)( a)( ii), and Section 4(2)( e) read with 4(1) of the Competition Act, 2002. CCI has suggested several
remedial measures which could lead to the division of NSE into more than one entity so that there is
competition in the country's stock exchange business.
The report, a copy of which is in possession of TOI, is the result of an investigation carried out by the
director general after the commission received a complaint from MCX Stock Exchange (MCX-SX )
relating to the NSE's way of functioning to kill competition and abuse its dominant position as a stock
exchange.
CCI believes since NSE has violated several provisions in the act, it could consider taking remedial steps,
under Sections 27 and 28 of the same act. Under Section 28, if the commission feels fit, it can order the
division of NSE into more than one company. Under Section 27, the commission can order an entity to
change the way it does business using its dominant position which may harm competitors. The MCXSX's
decision to move CCI against NSE has its roots in a letter from SEBI to MCX-SX when the bourse had
written to the market regulator to look into NSE's alleged "predatory pricing" strategies in the currency
derivatives segment. The SEBI reply dated October 1, 2009, a copy of which is with TOI, said that
predatory pricing was not under the jurisdiction of SEBI but under the ambit of Competition Act.
When contacted by TOI, a spokesperson for NSE declined to comment on the report saying the matter
was sub judice.
The detailed investigation by CCI has looked into, among other things, the complaints related to NSE's
abuse of dominant position, its predatory pricing strategy for various trading segments (equity,
derivatives, Gold ETF, debt market etc), charging or waiver of transaction fees aimed at eliminating
competition, and also its move to kill competition through waiver of fee for data supplied to vendors (like
Reuters).
Panel drew from cases in US, EU
Based on evidence and after considering the arguments of both information provider (MCX-SX ) and
NSE, it is proved beyond reasonable doubt that NSE has the design of eliminating competition,'' the
commission said in its concluding remarks . "The NSE had used every tactics to harm competition by
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using its dominant position in the relevant market (stock exchange space) and has also protected its
dominant position in CD (currency derivatives) segment by using its monopoly revenues from other
segments ,'' the report added.
The investigation by CCI was initiated to look at NSE's business practices under six separate heads:
Transaction fee waiver, admission and deposit level waivers, data feed fee waiver, exclusionary denial of
integrated market watch facility, relevant market segment and assessment of dominant position. In its
submission before the commission during the investigation , NSE had said that a number of its decisions
were aimed at encouraging participation and developing the market, but the investigations by the DG
found that the main objective behind several of NSE's decisions was either to kill competition or to
restrict competition from growing'' .
3. Coal India faces Rs 1,773-cr fine for abuse of dominant position
New Delhi, Dec 10, 2013:
Competition Commission of India has imposed a penalty of Rs 1,773.05 crore on Coal India Ltd for
abusing its dominant position as a fuel supplier. CCI was acting on a complaint by the Maharashtra State
Power Generation Company Ltd and Gujarat State Electricity Corporation Ltd against Coal India and its
subsidiaries (Mahanadi Coalfields Ltd, Western Coalfields Ltd, South Eastern Coalfields Ltd).
Mahagenco complained that CIL had been supplying low quality coal at higher prices and putting in place
non-transparent contract conditions on quality and other supply parameters. CCI in its final order held
that CIL through its subsidiaries operates independently of market forces and enjoys undisputed
dominance in the relevant market of production and supply of non-coking coal in India.
The Commission inter alia also held CIL and its subsidiaries for imposing unfair/discriminatory
conditions in Fuel Supply Agreements (FSAs) with the power producers for supply of non-coking coal.
The anti-monopoly watchdog also issued a cease and desist order against CIL and its subsidiaries besides
directing modification of FSAs in light of the findings and observations recorded in the order.
The impugned clauses related to sampling and testing procedure, charging transportation and other
expenses for supply of ungraded coal from the buyers, capping compensation for supply of stones etc.
Further, for effecting these modifications in the agreements, CIL was ordered to consult all the
stakeholders. It was also directed to ensure parity between old and new power producers as well as
between private and PSU power producers, as far as practicable.
CCI has been dealing with seven cases of alleged abuse of dominant position by CIL. Coal India
accounts for over 80 per cent of the 530 million tonnes of coal produced in the country.
Source: http://www.thehindubusinessline.com/companies/coal-india-faces-rs-1773cr-fine-for-abuse-ofdominant-position/article5444119.ece
4. European Union Imposes hefty fine on Microsoft for abusing its dominant position
Posted at: 9:44, March 6, 2013

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The European Commission imposed a new huge fine against U.S. software giant Microsoft for failing to
fulfill its commitment to include in its Windows operating system an option screen that allows users to
install other alternative browsers besides Internet Explorer.
The Vice President of the Commission responsible for Competition, Joaquin Almunia, announced it
would charge Microsoft a fine of 561 million euros for ignoring its own decision to correct the problem in
its operating system. The fine, reports said, could reach up to 10 percent of the turnover made by
Microsoft from its operating system Windows and its web browser Internet Explorer, but the Commission
settled at just over half a billion euros.
Almunias spokesman had eluded confirmation of such a fine. Perhaps the reason is that it is the first time
the EU executive punishes a company for breaking its commitments to correct an abuse of dominant
position.
The display options in Windows to allow users to choose alternative web browsers was one of the
remedies promised by the Redmond company in 2009 as part of a case opened by Brussels for abuse the
companys dominant position in the market.
The aim was to prevent that Microsoft imposed its own Explorer browser on users as a way to expel its
rivals from the market. The company was mandated to have this feature up until 2014.
In the statement of objections sent in October, the EU executive claimed that Microsoft did not include
the options screen in Windows 7, Service Pack 1, which went on sale in February 2011. Between
February 2011 and July 2012, millions of Windows users in the EU could have been deprived of the
options screen, said the Commission.
The company has already acknowledged the facts and has attributed the issue to a technical error. The EU
executive has already imposed three fines on Microsoft for abuse of dominant position since 2004
amounting to a total of almost 1,700 million euros.
Source:
http://real-agenda.com/2013/03/06/european-union-may-impose-hefty-fine-on-microsoft-forabusing-its-dominant-position/
Case Study 7: Combination
1. CCI clears Nippon-Reliance Mutual Fund deal
Competition Commission of India has approved Japanese financial services giant Nippon's proposed deal
to hike its stake in India's top fund house Reliance Mutual Fund to 49 per cent in multiple tranches.
According to the fair trade regulator, the proposed deal would neither result in the elimination of a
competitor, nor alter the structure of market for mutual funds, asset management services and portfolio
management services.
The Japan-based firm already holds 26 per cent stake in RCAM, which it had acquired for Rs 1,450 crore
in 2012 while valuing the company at Rs 5,600 crore at that time.
Under the proposed deal Nippon Life Insurance Company would first acquire 9 per cent additional stake
of Reliance Capital Asset Management (RCAM) for about Rs 657 crore.
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Source: http://www.moneyguruindia.com/article.php?cid=8626&id=3
2. Price Waterhouse & Co to supervise divestment of Sun-Ranbaxy drug brands
NEW DELHI: The Competition Commission of India has enlisted Price Waterhouse & Co to monitor the
divestment process of seven drug brands from the stable of Sun Pharma and Ranbaxy Labs, before
granting its final approval to the takeover of the latter by former.
The process of disinvestment of these brands has also been expedited by the two companies to fasttrack
the acquisition of Ranbaxy by Sun by at least two to three months, officials and industry consultants
aware of matter confirmed to ET.
The competition watchdog had in December last year granted a conditional approval to the Sun Pharma's
takeover proposal of Ranbaxy but had asked both the companies to sell seven brands (six from Ranbaxy's
and one from Sun's portfolio), which it felt could have an appreciable adverse effect on competition in
their relevant markets in the Indian drug space in a post merger scenario. CCI at the time had set a
deadline of six months to complete the divestment process after which it was expected to grant a final goahead to the deal.
The deal was cleared on Friday by the US competition watchdog, the Federal Trade Commission, on a
condition that Sun will divest Ranbaxy's brand of generic minocycline, an antibiotic used to treat several
types of infections, to competitor Torrent Pharma.
Source: http://articles.economictimes.indiatimes.com/2015-02-02/news/58711747_1_dilip-shanghvi-sunpharma-ranbaxy-deal
3. CCI approves merger of Sterlite, Sesa Goa
Competition watchdog CCI has approved the mega-merger of Sterlite Industries and Sesa Goa that was
announced by its parent company Vedanta Resources on February 25 this year.
The merger, that will lead to a new entity, Sesa Sterlite, is aimed at simplifying the group structure of
London-listed Vedanta Resources and will create seventh largest natural resources company in the world
(in terms of EBITDA).
... Commission is of the opinion that the proposed combination is not likely to have an appreciable
adverse effect on competition in India and therefore, the Commission hereby approves the combination
under sub-section (1) of section 31 of the (Companies) Act, Competition Commission of India said in its
order. The nod is first among several regulatory approvals, required for the Sesa-Sterlite merger. Vedanta
had said earlier that it expects to complete the restructuring process by year-end after which Sesa Sterlite
will be listed on the bourses.
4. Jet-Etihad deal gets CCI nod
New Delhi, November 12, 2013
Paving the way for closure of long- pending Jet-Etihad deal, fair trade regulator Competition Commission
of India (CCI), on Tuesday, approved the proposed acquisition of 24% stake in the Naresh Goyal-led
carrier by the Abu Dhabi-based airline.
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Etihad is acquiring this stake for Rs.2,058 crore in a deal that was announced in April.
Considering the facts on record and the details provided in the notice (under relevant Section of the
Competition Act)... the Commission is of the opinion that the proposed combination is not likely to have
appreciable adverse effect on competition in India and, therefore, the Commission hereby approves the
same, the CCI said in an order.
The majority order, passed by CCI Chairman Ashok Chawla and four members, said the approval could
be revoked if information provided by Jet and Etihad was found to be incorrect at any time.
5. One more CCI hurdle for Private Equity firms?
Private Equity firms will have to jump through one more hoop when they invest in Indian firms
According to the CCI chairman, Ashok Chawla now the firms will need CCI approval while making
multiple investments in a sector, even if the transactions don't breach the prescribed thresholds.
Chawla has a very clear mantra for companies to follow when it comes to investing in other
companies - it's better to ask for permission, than to apologies. He says, I would suggest the
enterprises concerned is it is better to err on the side of caution than to have the competition
commission visit you with some kind of penalty for gun jumping. It is a practice which some dealmakers have already begun following.
In august this year, for instance, Kotak Mahindra Bank filed with the CCI to acquire a 15 percent
non-controlling interest in MCX Stock Exchange. However, this was not strictly necessary, since the
Competition Act exempts a transaction from filing requirements if the acquisition is less than 25
percent, there is no acquisition of control, and the transaction is purely an investment or is in the
ordinary course of business.
Source:
http://www.moneycontrol.com/news/business/one-more-cci-hurdle-for-private-equityfirms_1255570.html?utm_source=ref_article

6. Examining Kotak-ING Vysya Bank merger deal, says CCI

Fair trade watchdog CCI is examining the Rs 15,000-crore merger deal between Kotak Mahindra and
ING Vysya that would create the country's fourth largest private sector lender.
Kotak Mahindra Bank had announced the buyout of ING Vysya Bank in an all-stock deal in November
last year and the transaction received shareholders' nod earlier this month. Competition Commission of
India (CCI) Chairman Ashok Chawla said the companies have notified the regulator about their deal.
"That (the deal) is being examined," Chawla told reporters here.
He was responding to a query on whether the companies have approached the Commission for its
approval of the deal. The amalgamation of ING Vysya with itself would make Kotak Mahindra Bank the
country's the fourth-largest private sector lender. The deal was approved by the shareholders of Kotak
Mahindra and ING Vysya earlier this month. The CCI keeps a tab on unfair business practices at the
market place across sectors.
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