Note On Competition/Anti-Trust Law and its Efficacy in Tackling Issues Concerning Privacy (Part III) – And a Post Script.

[The previous post seemed way too long for a blog post, so decided to split it and post a ‘Part III’. The previous posts can be found here and here. Also as a bonus – an anticlimax post script. ;)]

INDIA

As already stated above, India has also till date been following the traditional model of competition law enforcement. The language and the concepts of the Competition Act, 2002 are heavily borrowed from the Treaty on the Functioning of the European Union (T.F.E.U.) and the enforcement structure enumerated under the act, i.e., the Competition Commission of India (C.C.I.) and the Director General of Investigations (D.G.) is also similar to the enforcement structure of the E.U.

The Commission displayed its cognizance of data collection, though not from a Privacy perspective, in the case of Matrimony.com Ltd. v. Google LLC, Case No. 07 of 2012. In its Final Order dated 31.01.2018, while imposing a fine of Rs. 135.86 crores on Google, it observed:

“In fact, it would not be out of place to equate data in this century to what oil was to the last one. The Commission is not oblivious of the increasing value of data for firms which can be used to target advertising better. Moreover, the data can be turned into any number of revenue generating artificial-intelligence (AI) based innovations.”

However, prior to this, in the case of Vinod Kumar Gupta v. WhatsApp Inc., Case No. 99 of 2016, specifically assailing the acquisition and the privacy policies of the respective entities, the Commission while dismissing the Complaint, specifically observed:

“14. On the issue of dominance of the OP in the relevant market as defined supra, the Commission notes that in India a number of other players such as Apple with iMessage, BlackBerry with BBM, Samsung with ChatON, Google with Google Hangouts and Microsoft with Skype are providing consumer communication apps and are also active in the provisions of smartphone hardware and operating systems. Besides, many other consumer communication apps providers such as Hike, Viber, WeChat and Snapchat are also active in market. As per the information available in the public domain, globally ‘WhatsApp’ is having a billion monthly active users and within India, it is having 160 million monthly active users. According to a study of ‘Jana and mCent’, 97% of the smartphone users in India use a communication app daily and the most popular is ‘WhatsApp’, which is installed on 96% of devices and has more daily active users than any other communication app in India. As per the said report, ‘WhatsApp’ is installed in 2.3 times more devices than home-grown messaging app Hike. According to a study conducted by ‘TNS/TNC Connected Life Study 2015’, 56% of the internet users in India use ‘WhatsApp’ and 51% use ‘Facebook’ every day. Further, amongst India’s internet users, ‘WhatsApp’ tops the list of instant messaging apps. Further, citing a study conducted by Global Web Index, the Informant has submitted that 64% of mobile users in India use ‘WhatsApp’ which is the largest as compared to any other mobile messaging app usage. Based on the the above, the Commission is of the opinion that the OP is in a dominant position in the relevant market as defined under para 13 above.

15. With regard to the abusive conduct of the OP in the relevant market, it is noted that the Informant has alleged that the OP is abusing its dominant position in the relevant market by introducing privacy policy which compels its users to share their account details and other information with ‘Facebook’. In this regard, the Commission observes that the data sharing terms of the privacy policy of the OP as updated on 25th August, 2016 relate to sharing of users’ ‘WhatsApp’ account information with ‘Facebook’ to improve the online advertisement and products experiences available on user’s ‘Facebook’ page. It is noted that the OP provides the option to its users to ‘opt out’ of sharing user account information with ‘Facebook’ within 30 days of agreeing to the updated terms of service and privacy policy. Moreover, the OP has submitted that ‘Facebook family of companies’ will use such information for the purpose of improving infrastructure and delivery systems, understanding how their services are used, securing systems, and fighting spam, abuse or infringement activities. The Commission also finds force in the submission of the OP regarding its users safeguards that all types of ‘WhatsApp’ messages (including chats, group chats, images, videos, voice messages and files) and ‘WhatsApp’ calls are protected by end-to-end encryption so that third parties and ‘WhatsApp’ cannot read them and also the message can only be decrypted by the recipient. Further, as stated in the key updates summary of the OP, nothing a user shares on ‘WhatsApp’, including his/ her messages, photos, and account information, will be shared onto ‘Facebook’ or any other apps of ‘Facebook family of companies’ for any third party to see, and nothing a user posts on those apps will be shared by ‘WhatsApp’ for any third party to see.

……..

19. The Commission also observes that there are no significant costs preventing the users to switch from one consumer communication apps to another. It may be due to the following reasons: (i) all consumer communication apps are offered for free of cost or at a very low price (mostly free), (ii) all consumer communication apps are easily downloadable on smartphones and can co-exist on the same handset (also called ‘multi homing’) without taking much capacity along with other apps, (iii) once consumer communication apps are installed on a device, users can pass on from one app to its competitor apps in no-time, (iv) consumer communication apps are normally characterised by simple user interfaces so that costs of switching to a new app are minimal for consumers, and (v) information about new apps is easily accessible given the ever increasing number of reviews of consumer communication apps on apps store like google play store etc. Furthermore, the expansion of Hike Messenger to nearly 100 million user base within three years of launching their services into the aforesaid market reflects that in this market, there are no significant barriers to entry and consumers appear to be price sensitive. Based on the above, the Commission is of the view that even though ‘WhatsApp’ appears to be dominant in the relevant market, the allegations of predatory pricing have no substance and the OP has not contravened any of the provisions of Section 4 of the Act.”

The most comprehensive discussion by the Commission on the aspect of data collection and sharing appears to be under the combination procedure in the Jhaadu Holdings LLC Case, i.e., the Acquisition of 9.99 percent of the equity share capital in Jio Platforms Limited by Facebook, Inc. The relevant portions of the Order of the Commission dated 24.06.2020 are as follows:

“(ii) Potential data sharing between the parties

50. Most of the data driven businesses are multi-sided platforms where one or more sides of the platform is designed to attract user presence and the other sides are used for monetizing the data relating to user behaviour. For instance, Facebook application is a social media platform. One side of its platform offers free services to users for social interaction and on the other side, the monitored behaviour of the users is used as an input to offer advertisement services (targeted display ads). As noted earlier, the social media and other applications of Facebook group are popular amongst internet users and Facebook is expected to have access to rich data regarding user behaviour. Facebook has submitted that it has a data policy that explains the nature of information collected by Facebook and how it is being used. It inter alia explains data sharing with third party partners.

51. Jio Platforms including RJIO, on the other hand, is also in a position to collect and possess consumer data. The privacy policy of RJIO defines Non-Personal Information as information that does not identify the user or any other individual, and includes session, web beacons and usage and transaction data, aggregate log data and aggregate information. It further states that RJIO uses this information, inter-alia, to tailor its services to the interests of its users, to measure traffic within its services, to improve the quality, functionality and interactivity and let advertisers know the geographic locations from where its users/ visitors come. The privacy policy further provides that the information provided by the users will be used for a number of purposes connected with RJIO’s business operations including (a) verifying the identity, access, privileges assigned and relationship with the user; (b) provisioning of products/services, testing or improvement of services, recommending various products or services; (c) communicating about bills, invoices, existing or new offers, content, advertisements, surveys, key policies or other administrative information; (d) analytics and reviews for improvement of RJIO’s services; (e) improving user experience while using RJIO’s services by presenting tailored advertising, products and offers; and (g) other usages that users may consent to.

52. Business combination between entities having access to user data can be analysed from the perspective of data backed market power. The assessment in such instances needs to focus on the incentives of parties to pool or share their databank and monetize such data in possible means.

53. In the instant matter, it is noted that the Proposed Combination is an acquisition of 9.99% stake in Jio Platforms by Facebook group. This may not result in unrestricted access to each other’s resources including user data. Nevertheless, the parties may have incentives to engage in mutually beneficial data sharing. In this regard, Jaadhu has submitted that “there is no data to be shared as part of the Proposed Transaction” (i.e. proposed acquisition of shares in Jio Platforms by Jaadhu). It has been further clarified in the response dated 12th June, 2020 by Jaadhu that:

“It is clarified that data sharing is NOT the purpose of the Proposed Commercial Arrangement, nor will either side be acquiring ownership of the other’s data pursuant to the Proposed Commercial Arrangement. However, for implementation of the Proposed Commercial Arrangement, WhatsApp and JioMart (which is owned by RRL and operated by Jio Platforms) will receive or send limited data. This data is:

(i)being provided only for the purpose of facilitating e-commerce transactions on JioMart. Its use is limited, proportionate and solely for the purpose of implementing the Proposed Commercial Arrangement. Further, ****** the MSA explicitly prohibits the Commercial Arrangement Partners from using confidential information received from the other party for their own business purposes, or from disclosing it to third parties, *********************************************** ********************************************************** ********************************************************** ************************************************;

(ii)neither exclusionary, inimitable nor rare, and substitutes exist…; and

(iii)processed in accordance with applicable law and parties’ data policies.”

54. The Commission observes that RJIO is a prominent telecommunication player in India with more than one-third of wireless subscribers on its network. The group entities of Jaadhu viz. Facebook Group, on the other hand, are the second leading player in online advertisement space and leading player in online display advertisement services. The user data possessed by Jio Platforms including RJIO and Facebook Group are complementary to each other given the symbiotic interface between telecommunication business and OTT content/ application users. Thus, any anti-competitive conduct resulting from any data sharing in the future could be taken up by the Commission under Sections 3 and/or 4 of the Act having due regard to the dynamics of the concerned markets and position of the parties therein.

55. Considering the material on record including the details provided in the Notice and the assessment of the Proposed Combination based on factors stated in Section 20(4) of the Act, the Commission is of the opinion that the Proposed Combination is not likely to have any appreciable adverse effect on competition in India. Therefore, the Commission approves the Proposed Combination under Section 31(1) of the Act. The Commission also notes that the parties confirm that the Proposed Combination does not contemplate any non-compete covenants.

56. This order shall stand revoked if, at any time, the information provided by Jaadhu is found to be incorrect.”

Recently, the Chairman of the C.C.I, Ashok Kumar Gupta, remarked that “Lowering of privacy protection by dominant enterprises could be construed to be an abuse of dominant position and therefore fall within the ambit of antitrust as low privacy standards implies reduction in consumer welfare.” However, no fresh investigation appears to have been initiated by the regulator as on date.

P.S. (As promised) –

So we have a bit of an anti-climax in this space, with TechCrunch reporting day before yesterday through Natasha Lomas that Google won’t end support for tracking cookies unless UK’s competition watchdog agrees !! It’s a long article, but well worth the read, especially for grasping the contours of Google’s self-styled “Privacy Sandbox” it announced earlier this year.

My favourite portion was and I quote:

“But the key issue here is how privacy and competition regulation interacts — and potentially conflicts — with the very salient risk that ill-thought-through and overly blunt competition interventions could essentially lock in privacy abuses of web users (as a result of a legacy of weak enforcement around online privacy, which allowed for rampant, consent-less ad tracking and targeting of Internet users to develop and thrive in the first place).

Poor privacy enforcement coupled with banhammer-wielding competition regulators does not look like a good recipe for protecting web users’ rights.”

Scope of Determination of Relevant Market under Horizontal Agreements

We have a guest post here by Tilak Dangi. Tilak is law student pursuing B. A. LLB. (Hons.) from the NALSAR University of Law and is currently in his 4th Year.

Introduction

Section 3 of the Competition Act (hereinafter the Act)[1] prohibits anti-competitive agreement(s) which cause or are likely to cause an Appreciable Adverse effect on Competition within India. Currently, Section 3 has two limbs. Firstly, horizontal agreements which are prohibited under Section 3(3) of the act and are presumed to be anti-competitive unless the presumption is rebutted. Secondly, vertical agreements are prohibited under Section 3(4) and are determined based on the ‘rule of reason’ approach. Also, section 3 does not mandatorily require the determination of the relevant market. The Competition Law Review committee (hereinafter CLRC) [2] deliberated the issue of making it mandatory and came to the conclusion that such a mandate will make a Section 3(3) enforcement too rigorous since the CCI has to delineate the relevant market for dealing with all the alleged contravention in this provision and thus the term ‘relevant market’ should not be introduced in section 3(3) of the act.

In this article, the author argues as to why the determination of the relevant market should be mandatory in cases concerning horizontal agreements under section 3(3) as well.

Analysis

In the case of CCI v Coordination Committee of Artists and Technicians of West Bengal Film and Television Industry[3], the case concerning Section 3(3), the apex court said that the primary step is to find out what constitutes the ‘relevant market’? Moreover, the court also mentioned that the factors mentioned under Section 19(7) to determine the relevant market that includes physical characteristics or end-use of goods, classification of industrial products price of goods and services, etc [4] are supposed to be taken into consideration while determining the same.

Thereafter, the CCI approached the apex court for a clarification as it was concerned that the judgment in respect of the “relevant market” may looks like that there is also a necessity to delineate the relevant market in all such cases of Section 3(3). The court clarified the same by mentioning that the determination of the “relevant market” is not a mandatory pre-condition for assessing the alleged violation Under Section 3 of the Act.

Now Section 3(3) states that:

“Any agreement entered into between.…xxx…..including cartels, engaged in identical or similar trade of goods or provision of services, which–…”

Thus, the wordings of the section makes it clear that the essential condition of Section 3(3) is that the opposing parties must be engaged in similar or identical trade.

To counter such allegations, the parties in the case can argue that they do not deal in a similar market and hence Section 3(3) wouldn’t apply to them. Therefore, the Commission has to establish that the entities are engaged under the same relevant market which has to be ascertained by taking factors mentioned under Section 19(7) [5] into consideration.

Factors under Section 19(7) assist to establish that the commodities provided by the different opposing parties are substitutes to each other and therefore both the parties deal with similar or identical trade. It is the question of fact and the CCI cannot presume that the opposing parties deal within a similar trade but have to establish the same. Therefore, only after determining relevant market by factors mentioned under Section 19(7), will the entities will be considered as dealing under the same relevant market.

The CCI has also consistently determined the market in the cases of horizontal agreements. The EPS systems market was mentioned in a suo motu case.[6] In another case,[7] the CCI took note that the market for the supply of such commodity was conducive for cartelisation wherein the DG also mentioned that other companies were market players involved in the cartel. In another case,[8] the Commission analysed anti-competitive conduct in the Dry-Cell Batteries Market in India.

The word ‘market’ in the above cases shall only have meaning of ‘relevant market’ and nothing else[9] which shows the determination of relevant market in terms of the wording ‘similar and identical trade’ of clause of Section 3(3) is mandatory. Therefore, to prove the allegations under section 3(3), it has to be established that the parties deal in the same trade i.e., deal in the same relevant market. This in turn has to be ascertained according to the factors mentioned under Section 19(7).

The reason for the determination of the relevant market being non-mandatory in cases of Section 3(3) as given by the CCI to the apex court is that the AAEC is presumed in such cases. [10] However, it is a settled position of law that the presumption is rebuttable as these agreements are not considered as conclusive proof of the fact that it would result in AAEC. [11] In case such evidence is led, which rebuts the presumption, then the CCI has to take into consideration the factors mentioned in Section 19(3) of the Act and see as to whether all or any of these factors are established.

Therefore, when an agreement under Section 3(3) has been established, the parties can rebut the presumption, and thus, the commission has to show that the presumption has not been rebutted. Before doing so, the parties will have to establish the relevant market to determine the AAEC and the same cannot be escaped.

The clarification of Supreme Court [12] and report of the CLRC with this aspect is per se problematic because a plain reading of Section 19(3) would show that the factors mentioned thereunder have to be taken into consideration to rebut and re-establish the presumption of the AAEC, which makes the determination of relevant market mandatory. Therefore, to determine AAEC which is inevitable, the requirement of the relevant market has to be necessary as the apex court has noted that the word ‘market’ used in Section 19(3) has reference to ‘relevant market’.

In case of Nagrik Chetna Manch v SAAR IT resource Pvt Ltd. and Ors, [13] the Commission considered the factors of Section 19(3) while dealing with the submission of rebuttal of presumption by the opposing party. The CCI observed that the argument of no entry barriers does not stand as the bidding process itself thwarts provision of goods and services by credible players, who lose out in the absence of conditions which foster competition. Therefore, commission observed anti-competitive effects in the case but ironically did not determine the relevant market.

In another case,[14] the Commission went on to mention that by mandating certain requirements, the distributors have been discouraged in entering the distribution channel, their entry may be restricted even if they are otherwise satisfying the requisite criteria. Further, such a restrictive practice does not accrue any benefits to end consumers in as much as the availability of products to the consumers can be adversely affected both in terms of quantity as well as its availability at competitive prices. The contravening trade association and company had failed to exhibit that such practice is in any manner beneficial in terms of factors laid down under clauses (d), (e), and (f) of Section 19(3) of the Act.

The abovementioned cases show the factors mentioned under Section 19(3) were taken into consideration but the irony being that these factors were considered without delineating the relevant market which is the prima facie condition under Section 19(3).

Conclusion

The CLRC report mentions that making determination of the relevant market under Section 3(3) will make it rigorous but at the same time the Commission can’t evade essential requirements mentioned under the Act itself. The pre-requisite mentioned under Section 3(3) itself requires entities entering into such agreements to be dealing in the same relevant market. Moreover, since the presumption is rebuttable and the practice of the Commission in dealing with AAEC arguments also shows the requirement of determination of relevant market. Therefore, the judgment by the apex court as well as the report with this aspect requires reconsideration as determination of relevant market in Section 3(3) is inevitable.

Endnotes:

[1] The Competition Act, 2002, No. 12, Acts of Parliament, 2002.

[2] Ministry of Corporate Affairs, Report of the Competition Law Review Committee, (2019)

[3] Competition Commission of India Vs. Co-ordination Committee of Artists and Ors., AIR 2017 SC 1449.

[4] The Competition Act, 2002, No. 12, Acts of Parliament, 2002.

[5] id.

[6] In Re: NSK Limited and Ors., MANU/CO/0041/2019.

[7] Hindustan Petroleum Corporation Ltd. vs. Allampally Brothers Ltd. and Ors., MANU/CO/0038/2019

[8] Cartelisation in respect of zinc carbon dry cell batteries market in India Vs. Eveready Industries India Ltd. and Ors., 2018 CompLR 467 (CCI).

[9] Competition Commission of India Vs. Co-ordination Committee of Artists and Ors., AIR 2017 SC 1449.

[10] Competition Commission of India Vs. Coordination Committee of Artists and Technicians of West Bengal Film and Television Industry, [2018] 144 CLA 403(SC).

[11] Rajasthan Cylinders and Containers Limited Vs. Respondent: Union of India (UOI) and Ors., [2018]150SCL1(SC)

[12] Competition Commission of India Vs. Coordination Committee of Artists and Technicians of West Bengal Film and Television Industry, [2018] 144 CLA 403(SC).

[13] Nagrik Chetna Manch Vs. SAAR IT Resources Private Limited and Ors., MANU/CO/0033/2019.

[14] Madhya Pradesh Chemists and Distributors Federation Vs. Respondent: Madhya Pradesh Chemists and Druggist Association and Ors., MANU/CO/0021/2019.

Delhi High Court Slaps Cost of Rs 1 Lakh. Writ against Section 26(1) CCI Order.

case dismissed In a rather interesting/unforeseeable turn of events, the Ld. single judge of the Hon’ble Delhi High Court (‘DHC’) has come down heavily on a Petitioner seeking relief against a Section 26(1) Order passed by the Competition Commission of India (‘CCI’).

The writ was filed against order passed by the CCI under Section 26(1) under Section 26(1) of the Competition Act, 2002 (‘the Act’), whereby the CCI had directed the Director General (‘DG’) to conduct an investigation on an allegation that the petitioner along with certain other manufacturers had contravened the provisions of Section 3(3)(a) and Section 3 (3)(d) of the Act.

The petitioner’s case was solely based on the contention that the said 26(1) order did not make any specific allegation against the petitioner.

A noteworthy background on this particular Sec 26(1) matter; is that the same petitioners had earlier moved to the writ court praying for relief of inspection of files of the CCI pertaining to the said order. And the same relief was granted by the DHC.

Now coming back to exactly what irked the Ld. Single Judge into imposing such heavy costs on the petitioner. Allegedly the whole controversy circles around an apparent untrue statement submitted before the court by the petitioners on their knowledge of the DG investigation in this particular case.

During the course of arguments , the counsel on behalf on the CCI, submitted before the court, certain documents relating to DG’s questionnaire, which was apparently sent to the Petitioners back in the year 2015, and the petitioners had duly participated in the investigation by replying to the said questionnaire. Without going into any finer details I will just say that this very movement was a true table turner. Because at this juncture the Ld. Single Judge went on to the extent of noting that the false statement and false affidavit of the petitioner make for a fit case to invite proceedings under section 340 of the Cr.P.C.

While not interfering with the operations of the said CCI order, and refusing to stay the DG investigation, the court while placing reliance on the Supreme Court case of Competition Commission of India v Steel Authority of India: (2010) 10 744; observed that that an order under Section 26(1) of the Act is in the nature of an administrative order and does not affect the rights of the parties. The Supreme Court had also examined the scheme of the Act and held that the legislative intent was not to permit any appeal against the order passed under Section 26(1) of the Act. Thus, an order under Section 26(1) of the Act cannot be interfered with unless it is established to be perverse or suffering from jurisdictional errors.

And accordingly the said petition was dismissed with with cost quantified at Rs.1,00,000/-. What will now remain interesting to see is how this order impacts the practice being followed by the Opposite parties of challenging the CCI’s order before the writ court under Article 226 of the Constitution. Would the attitude of not staying the operation of a 26(1) order finally mean that at last the Competition regulator will have proper time and opportunity of investigating into various alleged contraventions. OR maybe instead of an Article 226 remedy, a review/recall application before the CCI would be the appropriate way out for the Opposite Parties (Ah! btw hopefully an elaborate post discussing some thoughts on the CCI’s power of Review/Recall- soon). And maybe these investigations see the light of the day and aren’t just left hanging in the middle struggling for a decisive fate for years and years. And maybe just maybe this would be another step into the direction of having a stronger competition law regime in India.

G.C.R.: Immunity, Sanctions & Settlements.

This is admittedly super cool and super useful !! The Global Competition Review (G.C.R.) has an amazing “Know-How” Compilation on “Immunity, Sanctions & Settlements” across all major competition jurisdictions. So if you want an answer to a query related to sanctions and immunity’s across various jurisdictions or even for a particular jurisdiction, simply tick mark the relevant boxes and the answers come right on. 🙂 Even important F.A.Q.’s have been compiled for ease of access and the answers have also been compiled by authoritative practitioners in he field in the relevant jurisdictions. On a cursory glance, I’ve found almost all basic questions covered within them and in some even more.

There are similar compilations for “Private Litigation” and “I.P. & Antitrust”.

By far one of the coolest initiatives in competition law jurisprudence. (Ya I know I sound like a total nerd. :D)

A Nobel for Competition Law. :)

Well, to be precise, it’s a Nobel for the Economics of Competition Law. And there can be no doubt that the man who’s picture you see above deserves it hands down !! Jean Tirole is the official winner of the 2014 Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel 2014 “for his analysis of market power and regulation”. His work is extensive and if I start off, this is going to become a fairly long post, so I managed to find a fairly decent summary for our readers to get to know him and his work better.

UPDATE: Also find an Article by Prerna Katiyar titled “Jean Tirole: Why the Economics Nobel prize winner’s research is important for India” recently published on 19th October, 2014.

C.C.I. Double Standards Or Bad Reporting ??

The recent reports on the alleged demand of the C.C.I. against a number of builders and C.R.E.D.A.I. “to respond to findings by its investigation arm that they engaged in unfair trade practices such as one-sided contracts with inadequate disclosure” have generated a substantial amount of hype and glee and grimace alike. But to be honest, the news report has (at he risk of sounding stupid) left me confused more than anything else. Listed below are the reasons for my confusion:

1. The report states that the Commission began investigations based on a complaint by an individual, Jyoti Swarup Arora, against Gurgaon-based builder Tulip Infratech, the director of town and country planning, Haryana, and the Haryana Urban Development Authority. However, memory served me correct, as I clearly remember the Case being dismissed at the threshold itself. (It is Case No. 7/2011. Order dated 06.04.2011). There is also no supplementary Order of a later date available on the Commissions website therefore it is difficult to believe that the matter was appealed before the Competition Appellate Tribunal and was referred back from there.

2. As per the report, the “CCI has sought responses from Unitech, Oberoi Realty, BPTP Ltd, Gaursons India, K Raheja Corp, Amrapali Group, Supertech Ltd, Tata Housing Development Company, Ansal Properties & Infrastructure, Purvankara Projects, Prestige Estates Projects and Ambuja Neotia Group.The competition watchdog has also sought responses from Avalon Group, Aparna Construction and Estate, Amit Enterprises Housing, Omaxe, Parsvnath Developers, PS Groups Salarpuria Group and Purohit Construction. The Confederation of Real Estate Developers’ Associations of India (C.R.E.D.A.I.) lobby group has also been asked to comment.”

Notwithstanding what has been stated in point one above, there are already cases which have been filed against some of the above mentioned developers which have raised the exact same issues as given the article, and all of them have been dismissed. Assuming the article is not a case of bad news reporting, surely it is nothing less than double standard on the part of the C.C.I., not to mention that those Orders are Orders In Rem, and thus create a clear balance of convenience against these companies which have been showcaused. The Orders are as follows:

Omaxe (Case No. 77/2013 and Case No. 83/2011)

BPTP (Case No. 25 of 2014 and Case No. 33 of 2013 and Case No. 42/2010)

Raheja Group (Case No. 62/2011)

Supertech (Case No. 86/2013 and Case No. 3/2013 and Case No. 28/2012)

Unitech (Case No. 27/2011 and Case No. 21/2011)

Note: Since many of these developers are also involved in commercial construction market, I have chosen to exclude the Informations/Complaints filed against their commercial/office spaces but rather have limited the Orders on the subject matter at hand, i.e., residential apartments/spaces. But just for the record, all the Orders related to commercial spaces have also been held in favour of the above mentioned developers.

3. To quote directly from the article:

“The complainant alleged an understanding among all real estate players in the market to the detriment of consumers, saying that the code of conduct adopted by Credai indicated collusion among its members. The commission directed the investigation officer to probe the matter after observing that the conduct of Tulip and other members of Credai indicated prima facie violation of the provisions of the Companies Act.”

Not only is the second half of the above quoted stanza factually wrong due to the reasons mentioned in point one, but the very basis of the Complaint/Information as stated in the first half of the stanza is questionable. After all, as per the numerous decisions of the Commission itself, Collective Dominance is presently not recognised under the Competition Act. Furthermore, as the Article creates an impression that these developers are involved in a Cartel through C.R.E.D.A.I., to address this argument, it cannot succeed as the requisites of Section 3(3) of the Act can’t arise and be met in the present case. (There is a reason why all Information’s have been filed under Section 4 of the act.)

I look forward to any form of of clarification or even a correction against me to any and all my doubts. After all, I am purely going by the newspaper report and there is always the possibility that I may have missed something during my analysis.

EC Dawn Raids: A human Rights Violation ?

I recently read an old 2008 article titled “EC Dawn Raids: A Human Rights Violation?” by Imran Aslam and Michael Ramsden.

The Paper examines whether the ‘Dawn Raid’ procedure provided in E.C. Regulation 1/2003 is consistent with two rights protected by the European Convention on Human Rights and Fundamental Freedoms: the privilege against self-incrimination (Article 6 E.C.H.R.) and the right to privacy (Article 8 E.C.H.R.). The paper argues that the protection provided by the European Court of Justice falls far short of protection necessary to undertakings. On this basis, it analyses what available source(s) of judicial remedy an undertaking has in order to avail itself of E.C.H.R. rights.

While the article is old, it does hold special relevance for India in light of the expansive powers which are proposed to be given to the C.C.I. in the still pending Competition Amendment Bill which proposes to amend Section 41 of the Act, conferring the authority on the Commission to grant powers of search and seizure to the Director General’s office as and when required.

And So The Lobbying Begins….

This wasn’t exactly unexpected. After all, there’s a lot of money at stake, so its natural that the cement companies would start pestering the Government to help them get a remedy sometime or the other.

Oh well, is there anything one can do about it ?! As of now, it seems best to just be content with drinking a jug of beer and raising a toast saying “long live the Republic of India !! ”

An Update:

This is probably why the CCI has asked lobby groups to draw up self regulating data-release rules. Better to begin preemptive action. This was at an meeting on “Competition Law & Trade Associations” which was held on 17th December 2012 at the India Habitat Centre, New Delhi. (Photos)