Author: Sudipto Sircar

Invitation for Applications for Vacant “Member” Posts.

 

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The C.C.I. has invited Applications for filling up of the two vacant “Member” positions in the Commission. How meritorious the selection will be remains to be seen, as such positions are often prone to bureaucratic and judicial lobbying. Nevertheless, one must learn to retain faith in the system, for if we can’t, then we might as well live in Hobbes’ anarchic world where are lives would be “Solitary, Poor, Nasty, Brutish and Short.” [Have just finished “Law’s Empire” by Ronald Dworkin (finally, if I might add !!), which coupled with the Gopal Subramanium Fracas has put me in a sadly philosophical mood.]

Last date for Submitting Applications is 24th July, 2014.

 

Further details can be found here.

Antitrust Programme for Young Professionals 2014

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The Indian Institute of Corporate Affairs (I.I.C.A.), in partnership with the Competition Commission of India (C.C.I.), is pleased to invite applicants for the 2014 first edition of the “Antitrust Programme for Young Professionals 2014”. This Programme is a five-day signature practice oriented workshop and envisaged to be an annual event. It brings together a selected gathering of young lawyers, professionals and researchers drawn from prestigious Universities.
The Summer School provides the unique opportunity for professionals to interact with globally reputed faculty and experts from competition law (including academics, practitioners, in-house counsels, foreign competition law experts) through a combination of coursework that extensively covers lectures, discussions, skill oriented sessions and innovative learning processes like mock trial session, case studies, quiz, movies and peer-group activities.

The I.I.C.A. as part of the programme, is also organising an Antitrust Writing Contest. details for both of them can be found below.

 

 

Details

Registration Form.

Tentative Programme.

Is The Noose Tightening ??

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Is the C.C.I. noose slowly tightening around Google ?? It sure does seem that way. The C.C.I. recently admitted another case against Google, and will probably club the Information with the ongoing investigation in the BharatMatrimony Case and the C.U.T.S Information Case. Speaking of BharatMatrimony and C.U.T.S., Google’s woes have risen with it being fined one crore for non-cooperation in the ongoing D.G. investigation.

 

So why is it facing so much difficulty in India ?? Probably because it may not be innocent after all. Not to express opinion on the merits of the case, but it is a fact that Google hasn’t exactly won any of the competition law cases filed against it across the world. Both the E.U. investigation and F.T.C. investigations were closed with settlements, which one can’t exactly count as a victory. All Google did was make certain commitments to the two bodies and consequently changed their programming to suit the settlement. It can’t do that in India, there being no provision for settlement/compromise of cases in the Competition Act, 2002. In fact, Google has lost a case against it’s Adwords programme in Australia, which has probably bolstered the hopes of those who feel discriminated by Google Adwords.

 

People may believe that I am against Google, considering how much I write about it (and according to many, against it). Rest assured, one could not be farther from the truth. In fact, I am one of Google’s biggest fans, but more on this later in another post which I have planned.

 

 

 

Dish TV India Limited v. Hathway Cable & Datacom Limited and Others, Case No. 78 of 2013

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Here’s something which came up sooner than I had expected. A D.T.H. Service Provider filed an information against several M.S.O.’s (Multiple Service Operators) alleging a collective abuse of dominance by them. The issue raised is genuine as we’ve highlighted before here, here and here.

 

To be frank, am disappointed with the Information. The Informant seem to have pressed for “Collective Dominance”, which every Indian competition lawyer worth his salt knows is presently not addressed in the Act and their seems to have been no elaboration on the Relevant Market (Though not sure about this one. Only have access to the Order and not to the copy of the Information itself.) Furthermore, there seems to have been no attempt to build a case under Section 3. Needless to say, the Information was dismissed without a submission to the D.G. for an investigation. At the same time, it is surprising that the C.C.I. chose to dismiss this straightaway, since there already exists a T.R.A.I. Consultation Paper on this issue. In case it was worried about a regulatory conflict, it should have clearly stated so in the Order.

 

Interestingly, D.T.H. Service Providers are also facing scrutiny under the Competition Act. An Information against TATA Sky was dismissed in 2011, but the same as been appealed against and is presently pending before the Competition Appellate Tribunal.

Anonymous v. Bengal Greenfield Housing Dev. Co. Ltd And Others, Case No. 103/2013

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This is one case which has surprisingly been closed by the Commission, with the finding that that no case has been made out of the existence of an Anti-Competitive Agreement or of an Abuse of Dominant Position.  However, in my humble opinion, I am not so sure. While the conclusion of the D.G. in the end may have been that there was no Competition Law violation, it was definitely a case which merited a reference to the D.G. for further investigation.

The Informant in the present case claimed that the absorption of new supply of flats despite prices having gone up from Rs. 1,100/- to 4,800/- per square feet and the sale of Application Forms and allotment through lottery suggesting huge demand gave a clear impression of manipulation and restriction of supply and use of monopolistic and dominant status for monopolistic pricing as the the parcel of land for the township was being developed selectively despite the final allotment of land to the respective builders.

The reason the case is so important is because the Commission seems to have not given enough consideration, though it has been mentioned in the Order of the Commission, is that all the Respondents/Opposite Parties except for DLF Universal Ltd., are in fact joint ventures between the West Bengal Housing Board and various individual private entities. Therefore, all the entities have a common partner which definitely gives an impression of the various Respondents possessing the capability to effectively communicate with each other, or at the very least, coordinating with each other per force the directive of the W.B.H.B. Granted, it is a government body which claims as it’s objective to provide affordable housing to the people of West Bengal. But as we all already know, Government Bodies are not innocent when it comes to violation of Competition Law.

 

In my humble opinion, there exists a prima-facie case to be investigated on the violation of Section 3(3)(a) and Section 3(3)(b) of the Act and to be frank, it is unfortunate that the Commission chose to close the case.

First Ever Extradition On An Antitrust Charge

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In what is being claimed (and probably is)  as the first ever extradition on an Antitrust charge, Romano Pisciotti, an Italian national, was extradited from Germany to the United States  on a charge of participating in a conspiracy to suppress and eliminate competition by rigging bids, fixing prices and allocating market shares for sales of marine hose sold in the United States and elsewhere, the Department of Justice announced today. According to the Department of Justice (D. O. J.) of the U.S.:

 

“This first of its kind extradition on an antitrust charge allows the department to bring an alleged price fixer to the United States to face charges of participating in a worldwide conspiracy,” said Assistant Attorney General Bill Baer in charge of the Department of Justice’s Antitrust Division. “This marks a significant step forward in our ongoing efforts to work with our international antitrust colleagues to ensure that those who seek to subvert U.S. law are brought to justice.”

 

A copy of the Official Press Release can be found here. 

 

P.S.: For those who don’t know, Antitrust laws in the U.S.A. provide for both civil and criminal remedies.

Workshop On Competition Law Compliance

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The C.I.R.C. is organising a Workshop on Competition Law Compliance on the 18th and 19th of April, 2014 at Hotel Metropolitan, Bangla Sahib Road, New Delhi.

 

For further details and registration, click here. 

E.C. Policy Brief On Commitments

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The European Commission recently released a Competition Policy Brief on it’s Commitment Decisions.

“In a nutshell The Commission retains a margin of discretion in the choice of opting for an Article 7 prohibition decision or an Article 9 commitments decision. The choice depends on the main objectives pursued and the specific features of the case. In practice, commitment decisions are not appropriate in cases calling mainly for imposing high fines for past behaviour, or where no effective, clear and precise remedy is identifiable. They are only possible when companies are willing to offer appropriate commitments.”

The topic isn’t particularly relevant for India as of today, since the Competition Act as of now does not allow the C.C.I. to “settle/compromise” cases or investigations. But the transparency adopted by the E.C. is definitely encouraging. For example, one would definitely like the C.C.I. to release guidelines on the determination of penalty as a start.