Business Program on “Takeover Code and Competition Law”

Achromic Point is organising a Business Program on “Takeover Code and Competition Law” scheduled in Hotel Eros in New Delhi on 21st December 2012.
Topics being Covered:-

• SEBI Takeover Regulations-An overview and critical analysis of Important Definitions

• Reporting, Disclosures, Indirect Acquisition and Open Offer, Public Announcement and process to be followed for Voluntary Offer and Compulsory Offer

• Overview of Competition Law

• Anti Competition Agreement, Abuse of Dominance, Combination Regulation of Combinations (Mergers & Acquisitions)

For more details and registrations, please Provide your Contact Details :-
Email:- billing@achromicpoint.com

Ajay Devgan v. Yash Raj | This movie has Action, Romance And Monoplistic Practice

Here is my latest post on the India Law and Technology Blog on the Ajay Devgan Films v. Yash Raj Films Order.

Click here to view the post.

P.S.: Also find here Volume 2 of “Fair Play”, the quarterly newsletter of the CCI.

Conference on “Curbing Deficit through Effective Competition in Public Procurement”

The CCI recently organised a conference on “Curbing Deficit through Effective Competition in Public Procurement” at the Indian habitat Centre on 10th October. unfortunately, due to prior commitments, I was unable to attend the Conference, but for the benefit of all, have attached the links to the slides presented during the conference below:

SEEMA GAUR, IMPORTANCE OF COMPETITION COHERENT GOVERNMENT POLICIES

MANOJ PANDEY, PUBLIC PROCUREMENT AND COMPETITION LAW: ROLE OF CCI IN CURBING FISCAL DEFICIT

THE PUBLIC PROCUREMENT BILL, 2012

Supporting And Growing Our Premise

In our post titled “Executive Actions And Indian Competition Law:A Premise”, we tried to develop a premise on when the executive actions may be considered anti-competitive under the Competition Act. In an attempt to grow on that post, a recent article in Mint titled “Ending India’s Food Cartels“ helps us to further stress on the point in the above post. The article focuses on the monopoly of the Food Corporation of India (FCI) and the Agricultural Produce Marketing Committees (APMC’s).

While I do not entirely agree with the article ( APMC’s cannot be considered for anti-competitive practices, the reasons for which please read the previous posts and “hoarding” by the FCI is forgetting the fact that the FCI is also the organisation to manage the buffer stocks of the country), I do feel there may be a case against the FCI with regards some of its procurement policies. However, only a detailed in-dept investigation can reveal more.

Cabinet Approves Amendments To the Competition Act, 2002

As per a press release by the Ministry of Corporate Affairs,

“The Union Cabinet has approved the proposal of the Ministry of Corporate Affairs to further amend the Competition Act, 2002, with a view to fine tune it and to meet the present day needs in the field of competition, in the light of the experiences gained in the actual working of the Competition Commission of India in the last few years.”

Unfortunately, we could not find a draft of the Amendment Bill on the Ministry’s website. Will write a detailed piece on the same as soon as it is made public. In the meantime, if anybody finds the draft, please post the link to the same in the comments below.

Good Intentions Do Not Imply Good Actions

It has been recently reported that the Central Electricity Regulatory Commission (CERC) has issued draft regulations intended to prevent abuse of market power and regulate the conduct of companies harming or potentially harming competition in the sector.

As per the news article:

“The proposals allow it to issue directions in the event of anti-competitive agreements, abuse of dominant position or anti-competitive combinations entered into by any entity, licensee, deemed licensee and licence-exempt ones.”

While am sure that the intentions of the CERC are good and their initiative may be applauded in terms of pro-activity, it doesn’t exactly help in settling the jurisdictional conflicts between the CCI and various other sectoral regulators, many of whom have been lobbying to prevent loss of turf.  In fact, a bare perusal of the draft shows that the CERC is merely empowering itself with the powers already enumerated for the CCI under the Competition Act. It grants itself the power to investigate anti-competitive agreements, abuses of dominant positions and even combinations related to the power sector !! The only rider is under the proviso to Regulation 8(1) and Regulation 8(2) of the draft which are as follows respectively:

“…Provided that a complaint under sub-regulation (a) or a reference under subregulation (b) shall be accompanied by an affidavit stating that the Competition Commission of India is not inquiring into the matter referred to in the said complaint or the said reference.”

“If during the course of the said inquiry or any subsequent proceedings, it comes to the notice of the Central Commission that the matter under its consideration is also being inquired into by the Competition Commission of India, the Central Commission may refer the matter to the Competition Commission of India as provided in regulation 12 or may seek the opinion of the Competition Commission of India as provided in Regulation 13.”

Click on the following links for the regulations. (Public Notice/ Explanatory Memorandum/ Draft)

Executive Actions and Indian Competition Law: A Premise

In one of our previous posts, I had tried to highlight that a regulatory authority of the government could not in most cases be challenged as anti-competitive or an abuse of dominant position. Using the facts of that particular case, I had tried to show that in most cases such authority of a ministry or a sub-division of the ministry could not be challenged.

To grow upon that post, I submit the Commissions order in Arshiya Rail Infrastructure Ltd. (ARIL) vs Ministry of Railway (MoR) & Ors.  (Main Order/Per S.N. Dhingra, Member/Per M.L. Tayal, Member/Per R. Prasad, Member (Dissenting)) is one of the few cases where executive actions could be challenged as anti-competitive. While once again the Commission dismissed the case on merits, the Order helps in clarifying the Commissions stand regarding this issue and consequently, also helps us to update our previous premise to as follows:

1.   Exercise of executive authority through regulations or rules issued by an executive authority for the purposes of regulation of the provision of any goods or service cannot by itself be considered a service on the part of the Government.  It is merely the exercise of the legitimate state authority, and thus cannot be challenged as anti-competitive or an abuse of dominant position.

2. Any action of such a government authority when  a subdivision of that ministry or authority ( in this case, the Indian Railways) wherein the ministry or executive authority’s position results in a DIRECT relation as a competitor in the relevant market may be challenged as anti-competitive or an abuse of dominant position as the ministry or its sub-division would end up coming under the ambit of the definition of “enterprise” under Section 2(h) of the Act and thus could also be interpreted under the definition of “group” as given under clause (b) in the Explanation to Section 5.

We welcome your comments, criticism and feedback on the above premise.

Case No COMP/M.6281 – MICROSOFT/ SKYPE

This time, during my “competition surfing sessions”,  I was fortunate enough to come across the original order of the European Commission Regulation on the approval of the Microsoft-Skype Merger. While there is nothing controversial about the Order itself, it is an interesting read, especially on the classification and sub-classification of the relevant market by the EC.

The merger garnered much attention after CISCO challenged the Merger in the EU after it received the approval of the European Commission.

The link to download the document can be found here.