BRIEF NOTE ON THE PROVISIONS OF THE COMPETITION ACT, 2002  AND THE JURISDICTION, POWERS AND DUTIES OF THE COMPETITION  COMMISSION OF INDIA

It is increasingly recognized that in a sound business climate investors face relatively low entry and exit barriers and are protected against the risk of expropriation and abuse while consumers are protected against mal-practices of trade and industry.  The consumers are also ensured availability of ‘goods’ and ‘services’ in abundance of acceptable quality at affordable price.  The enactment of the Competition Act and its enforcement by an autonomous Commission is a key component in this dynamics.  Competition Law & Policy result in equity among producers and reduce rent seeking behaviour on their part.  It is this imperative which has persuaded countries to either enact their own law or to modernize their existing competition laws.  The number of countries having a competition law has risen from 35 in 1995 to around 100 as on date.

1.2       In line with the international trend and to cope with changing realities, India has reviewed the Monopolies and Restrictive Trade Practices Act, 1969 and has enacted the Competition Act, 2002 (the Act) with many innovative features w.e.f 14.1.03. The Act seeks to repeal the M.R.T.P. Act and to dissolve the M.R.T.P. Commission from the date it is notified as such by the Central Govt.  Such a notification is yet to be issued by the Central Govt.

1.3       The provisions of the Act extend to the whole of India except the State of Jammu & Kashmir. The Act is applicable to “goods” which includes goods imported into the country and “services” as defined in the Act.  The term “Enterprise ”, inter alia, includes private sector undertakings, public sector undertakings, Govt. Departments performing non-sovereign functions for consideration. The term “Consumer” includes  one who buys “goods” or avails of “services” for consideration notwithstanding whether such purchase of ‘goods’ or availing of ‘services’  is for one’s own consumption or for resale or commercial purposes.  The term ‘Cartel’ has also been defined in the Act and cartel agreements are presumed to have adverse appreciable effect on competition, in market, in India .

2.         In exercise of the power conferred upon it, the Central Govt. has since established the Competition Commission of India (the Commission) having its head office at New Delhi with effect from 14.10.2003.  The Commission is a body corporate having perpetual succession and a common seal. It may establish offices at other places in India .  The Commission shall consist of a Chairperson and not less than two and not more than 10 other members to be appointed by the Central Govt. Mr.Vinod Dhall entered upon the office of Member on 17.10.2003 and he has been designated as Member Administration by the Central Govt. with effect from 21.10.2003.

2.1       The Act through the instrumentality of the Competition Commission of India seeks to prohibit “Anti-Competitive Agreement”, “Abuse of Dominant position by an Enterprise ” and to regulate certain “Combinations” which include acquisition of shares, acquiring of control and mergers/amalgamation between and amongst enterprises.  On a reference from a statutory authority, the Commission is mandated to express and deliver judicial opinion on a competition issue arising during the course of proceedings pending in the Statutory Authority which can pass order only after having received the opinion of the Commission. The Central Govt. may also make a reference and seek opinion of the Commission on the possible effect on competition emanating from its policy, statute, rules, regulations framed, adopted or contemplated by it. 

2.2       The Commission is to enquire into cases relating to Anti-Competitive Agreement, Abuse of Dominant position by an enterprise and Combinations through a process of “Enquiry”. The jurisdiction, powers and authority of the Commission may be exercised by the Benches thereof and every Bench shall consist of atleast one judicial member.  The Commission is separately seized of work relating to formulation of its Regulations which shall inter alia, govern the procedure relating to conduct of enquiries.

2.3       After an Enquiry, in case the Commission finds that any agreement referred to in Section 3 or action of an enterprise in a dominant position   is in contravention of Section 3  or 4,  it may  pass all  or any of the following orders, namely:-

i)                    direction to discontinue and not to re-enter such agreement or discontinue abuse of dominance;

ii)                  impose penalty;

iii)                award compensation to an aggrieved person in accordance with Section 34;

iv)                direct modification of agreement;

v)                  direction to abide by such other order including payment of costs;

vi)                 to recommend to the Central Govt. the “division of enterprise enjoying dominant position”;

vii)              pass such other order as it may deem fit.

Likewise, the Commission is empowered to Enquire into certain Combinations involving Enterprises, the turnover or assets of which exceeds the threshold limits prescribed in the Act.  The Commission after due procedure may approve, approve with modification or reject the proposed combination and declare the Combination Agreement as void.

2.4       The key factor in case of Anti-Competitive Agreements and Combinations is “adverse appreciable effect on competition, in market, in India ”. The parameters to determine relevant market, relevant product market, relevant geographical market and factors to assess the appreciable adverse effect on competition in markets, in India have been prescribed in the Act itself and are to be determined by the Commission.  A condition precedent to taking action in respect of abuse of dominant position is that the alleged delinquent enterprise must have dominance in the relevant market.  The factors which shall be taken into account to determine “dominance” and the situations when such dominance is to be construed as “Abuse” thereof are also prescribed in the Act.

2.5       The Commission is also empowered to grant temporary injunctions during the course of Enquiry.  It has been explicitly provided that acts taking place outside India but having effect on competition in India also fall within the ambit of the Commission.  The Commission, with the prior approval of the Central Govt. is also empowered to enter into any Memorandum or Arrangement with any foreign agency of any foreign country for the purposes of the Act. Violation of an order passed by Commission attracts deterrent penalty provisions. 

2.7       The Commission is assisted by a “Director General” who is under obligation, on the direction of the Commission to carry out and furnish Investigation Reports into the contraventions of the provisions of the Act or any Rules or Regulations made there under.  He is to assist the Commission also in carriage of proceedings of Enquiries which are initiated by the Commission upon its own knowledge or information (suo moto) beside such other duties as are entrusted to it by the Commission. 

2.8       The Commission is also assisted by the “Registrar” who besides being the custodian of the Records of the Commission is required to perform such other functions as are prescribed under the Act, Rules, and Regulations beside such other duties as are entrusted to him by the Commission.

Address :- 14, “B” Wing
                  Hudco  Vishala,
                  Bhikaji Cama Place,
                  New Delhi – 110066
                  India

 Tel. Nos. :-       91-11-26701600
                                    26701650

Fax :-                91-11-26103859

Website :-            http://competitioncommission.gov.in

 Member & Acting Chairman

         Mr. Vinod K. Dhall,
         E-mail: cci-vinoddhall@nic.in
         Tel No.: 91-11-26177175, 26701605(O)/23381005(R)
         Fax No. 91-11-26169278

 Personnel

 1)      Sh.S.L.Bunker,IDAS
          Secretary
          E-mail - cci-bunker@nic.in
          Tel No. 91-11-26701619(O)/26193206(R)
          Fax No. 91-11-26103859

2)       Mr. Amitabh Kumar, IRS
          Director General,
          E-mail - cci-amitabh@nic.in
          Tel No. 91-11-26701603(O)/26882853(R)
          Fax No. 91-11-26103853

3)       Mr. Augustine Peter, IES,
          Economic Adviser
          E-mail: paugustine@nic.in
          Tel No. 91-11-26701681 (O)/25553757(R)
          Fax No. 91-11-26107131

4)       Mr. K.K. Sharma, IRS
          Advisor(Law)
          E-mail- cci-kksharma@nic.in
          Tel No. 91-11-26701671(O)/64515859(R)

5)       Mr. Sunil Barthwal, IAS
          Director
          E-mail: cci-sbarthwal@nic.in
          Tel: 91-11-26701610 (O) / 24101583 (R)

6)      Comdt.. M.M.Sharma,
         Addl. Registrar,
         E-mail: cci-mms@nic.in
           Tel: 91-11-26701672(O) /26874268( R)
        

  7)    Mr. Sushil Kumar
         Director
         E-mail :cci-sushilvern@nic.in
         Tel.: 91-11-26701616 (O)/22056583 (R)


   8)   Mr. R.K. Verma,
         Director
         E-mail : dsif-ca@nic.in
          Tel.No. :91-11-26701618 (O)/ 2201061 (R)


   9)      Mr. Virendra Singh
          Under Secretary (Admn.)
          E-mail : vsrawat@nic.in
          Tel. No. :91-11-26701664 (O)/ 26167647 (R)