India’s Competition Law – What Has Really Changed?

India’s modern competition law, introduced by the Competition Act 2002 (the Competition Act), has had a long and often troubled period of gestation. Although the Competition Act was enacted by the Indian Parliament and published in 2003, it has been dormant over a number of years and seen a piecemeal implementation. Since 2005, India has had a dedicated competition regulator – the Competition Commission of India (“CCI”) – which began to build capacity even before its was vested with formal powers. It has been trying to make India’s markets more competitive by cracking down on restrictive practices in industries ranging from airlines, to films, financial services and real estate.

In May 2009, the legal provisions on anticompetitive agreements (section 3 of the Competition Act) and abuse of a dominant position (section 4 of the Competition Act) came into effect. With the implementation of mandatory merger control effective from 1 June 2011, India can claim to have joined the ranks of over 100 countries worldwide with modernised competition laws. The new package of laws significantly updates India’s existing competition law framework which was considered ‘lacking in teeth’. The Competition Act, largely modelled on EU law and influenced to some extent by similar legislation in the U.S., has to be assessed in terms of its adequacy for the specific challenges India faces as an expanding economy.

This article outlines the main developments to date and their impact on businesses in India and on operations in India now and in the near term. Rather than taking a static view of the law and practice, it seeks to identify areas where the law may be made more effective in the future.

Agreements and commercial practices

The Competition Act has brought about a sea change in the way competition law operates in India. Enterprises with operations in, or whose activities outside, have a nexus with India need to examine their existing and proposed commercial practices for compliance with the Competition Act.

The Competition Act regulates two main categories of commercial behaviour: agreements and abuse of market power.

Section 3 of the Competition Act prohibits two categories of agreements: horizontal agreements (between businesses at the same level in the supply chain such as two manufacturers); and vertical agreements (between businesses at different levels in the supply chain such as a manufacturer and retailer). The provisions are broadly analogous to the provisions on anticompetitive agreements under Article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act in the U.S. The CCI has sufficiently wide jurisdiction to bring under its ambit agreements and arrangements taking place outside India, provided that they have an “appreciable adverse effect” (“AAE”) on competition in India.

There are some India-specific aspects to regulation of agreements. For example, horizontal arrangements relating to price, production, supply, or market sharing are presumed anticompetitive under the Competition Act. The scope to establish the legality of such arrangements would therefore appear limited. There are no general exemptions for defined categories of agreements that could be likened to the block exemptions that exist in the EU (essentially, group exemptions which automatically exempt certain categories of agreement falling within their terms). Such block exemptions assist companies to determine the legality of their agreements where certain conditions are met, including as to market share and the non-inclusion of certain hardcore restrictions such as resale price maintenance. Finally, there is only a very limited defence, i.e in the case of a joint venture improving efficiency – a concept which is yet untested.

Section 4 of the Competition Act prohibits companies with market power (a dominant position) from abusing that position. Market share is a starting point for determining dominance, but neither the Competition Act nor specific guidance from the CCI provides a ‘bright line’ market share test for determining when a company may be considered dominant for Indian competition law purposes. As in the EU, it is not the holding of a dominant position that is unlawful; only its abuse can be unlawful. Companies with a significant market position in India will therefore need to consider whether their commercial practices may be considered abusive. Examples of such abusive conduct include predatory (below cost) pricing, discriminatory pricing, denial or restriction of market access, and tying or bundling.

The CCI’s enforcement over the past two years indicates that it will not shy away from disallowing anticompetitive practices. In May 2011, the CCI found an infringement of section 3 of the Competition Act involving United Producers/Distributors Forum, The Association of Motion Pictures and TV Programme Producers. The three parties collectively comprise 27 film producing entities and were each fined INR 100,000 (approximately USD 2,000/Euro 1,500) after the CCI found that they had unlawfully engaged in anticompetitive agreements to collectively stop distribution of films thereby, depriving consumers of choice as new films were not released.

The first case involving a fine imposed for abuse of dominance was against the National Stock Exchange of India (“NSE”), which was fined 5 per cent of average turnover, equating to INR 55.5 million (approximately USD 1.1 million/Euro 820,000) for engaging in predatory pricing. The majority of members of the CCI considered that the zero pricing harmed competition and that NSE was leveraging its dominant position in other derivatives market segments to undercut competitors.

A second, and the most recent, case resulting in a fine for abuse of dominance represents the most substantial penalty to date, where the real estate company DLF Ltd was fined 7 per cent of average turnover, equating to INR 6.3 billion (approximately USD 126 million/Euro 94 million). The CCI received a complaint from real estate association Belaire Owner’s Association (“BOA”) against DLF. DLF was to build a new apartment block for BOA in the outskirts of New Delhi. According to the agreement, the building was to have 19 floors and be completed in 36 months. BOA alleged that DLF changed the terms of the agreement by building 29 floors which delayed completion. BOA alleged that the result of the delay was that hundreds of apartment allottees incurred financial losses since they had to wait indefinitely for occupation of their apartments. The CCI considered that DLF had abused its dominant position against a vulnerable section of consumers who had little ability to act against the abuse. An appeal against the CCI’s decision is pending before the Indian Competition Appellate Tribunal.

While the absolute level of fines may not be particularly significant by international or absolute comparisons, these cases suggest that the CCI is adopting a deterrent approach as in the DLF case the CCI came close to imposing the maximum level of fine of 10 per cent of turnover.

Mandatory notification and review of mergers and combinations

Companies contemplating or engaging in merger and acquisition activity will need to consider how the merger control process in India will affect the timing and likelihood of successful implementation of their transactions in all markets where they do business. Recent global deals , prior to the implementation of mandatory merger control in India on 1 June 2011 including transactions concerning Kraft and Cadbury and Tata Motors and Ford, have involved Indian operations but were not subject to competition law scrutiny in India. For example, U.S. food manufacturer Kraft’s acquisition of UK confectionary maker Cadbury included the acquisition of Cadbury India which was considered as a prize asset consistent with a decentralisation strategy and expansionary focus. In 2008, India’s largest motor vehicles manufacturer Tata Motors announced that it had purchased the Land Rover and Jaguar brands from Ford Motors for £2.3 million. Two leading luxury car brands were added to its portfolio of brands. In the future, mandatory merger control in India and the power of the CCI to prohibit transactions or accept remedies will give the CCI tools to deal with cross-border activity affecting its markets and to determine whether such transactions give rise to an AAE on competition in India.

The CCI has a set period of 30 days from a notification being accepted in which to conduct an assessment and deliver a “prima facie opinion” as to whether the combination will, or is likely to, have an AAE on competition in the relevant market in India. If the CCI raises initial concerns that cannot be resolved by remedies that the parties are able or willing to offer, an in-depth review may be launched. The CCI has to make an “endeavour” to clear transactions within 180 days.

The CCI completed its first merger review within two weeks. The CCI cleared Reliance Industries Ltd’s buyout of Bharti Enterprises’ interest in an insurance joint venture with French insurer AXA SA. Reliance Industries is a new entrant in the Indian insurance industry and does not have a presence in India’s general or life insurance markets. Businesses will take some comfort that this transaction was reviewed swiftly. However, this needs to be viewed in context, since the case did not raise material competition issues.

With less than a full year of operation of the Indian mandatory merger control regime, it would be premature to draw robust conclusions from the decisions to date; still less to consider that they are necessarily a predictor for the future. However, the publication of amendments to the existing Combination Regulations serves to indicate that the CCI is already clarifying ambiguities in the underlying legislation through its practice and guidance. Specifically, the “Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2012”, published on 23 February 2012 make several significant changes to the Combination Regulations of 11 May 2011. Key points include:

  • Exemptions from filing: In particular, the following categories of transactions are included within the types of transaction not likely to cause an AAE on competition in India and, as such, will not normally require a filing: (i) acquisitions of less than 25 per cent of equity shares or voting rights in the ordinary course of business or for investment purposes, without an acquisition of control; (ii) acquisition of shares or voting rights pursuant to a bonus issue or stock splits or buy back of shares or subscription to rights issue of shares, not leading to an acquisition of control; and (iii) certain intra-group mergers and amalgamations involving subsidiaries wholly owned by the same group.
  • Increased filing fees:· The Form 1 (short form) filing fee is increased from INR 50,000 to INR 1,000,000 (approximately USD 20,000/ Euro 14,900) and for Form 2 (long form) the fee is increased from INR 1,000,000 to INR 4,000,000 (approximately USD 80,000/ Euro 60,000),
  • Form of notice: ·Although parties have an option of using Form 1 (short form) or Form 2 (long form) a preference is expressed for notification using Form 2 (long form) in the case of overlap where the parties have market shares exceeding 15 per cent (horizontal relationships) and/ or 25 per cent (vertical relationships).

Penalties with clout

The consequences of non-compliance may be serious in terms of significant financial penalties including up to 10 per cent of turnover for agreements and commercial practices; void agreements; impacts on M&A in terms of timing and modifications to secure clearance and harm to reputation and shareholder value as a result. The CCI has already imposed fines for violation of the prohibitions on anticompetitive agreements and abuse of a dominant position. However, the CCI has not yet provided any clarity on how it determines penalties other than to say that the fine must be “commensurate” to the violations.

Competition law enforcement trends emerging

As with any new law in the early stages of adoption, it can be difficult to chart the path that the regulator will take in prioritising its enforcement. In the absence of detailed case law and guidance under the Competition Act, the case law under the Monopolies and Restrictive Trade Practices Act, 1969 (‘MRTPA”) is likely to be a starting point for enforcement priorities. However, since it is intended that the new law represents a ‘clean break’ from the old, the CCI will be determined to establish its own way. It is likely that the experience of competition enforcers outside India, in particular in Europe and the U.S., can be expected to provide insights on how the law will be applied in practice. It is interesting to see that the CCI is already citing EU cases to substantiate their analysis and conclusion(s). Businesses under investigation can therefore serve themselves well by strengthening their arguments and evidence with international competition case law precedents where relevant.

The CCI has already begun to turn its gaze to particular industries presenting competition issues including airlines, cement, motion pictures, real estate, shipping, technology and telecoms. Businesses dealing in commoditised sectors or mature markets or facing low margins are likely to be subject to particular scrutiny owing to the obvious risk of collusion in such markets. Other future areas for intensified competition enforcement could include the energy, financial services, and pharmaceutical sectors. These sectors are vital to the economy, health and development of India and have been the subject of recent competition inquiries in Europe and the U.S. It would not be surprising if, in the future, the CCI follows the international competition law brethren with inquiries in these areas.

Risk management

Businesses may adopt mechanisms to manage the risks and opportunities presented. This recognises that an awareness of how competition law impacts businesses in practice may identify areas where the law can be used to business advantage, for example where a company is the victim of anticompetitive practices by others. The steps that can be taken vary from business to business but will tend to involve: conducting a competition law risk assessment; developing a competition law policy; devising a competition law manual, developing fact-specific guidelines and case studies; conducting employee training; and regular competition law audits and monitoring. The CCI has issued guidance to businesses on how to create effective compliance programmes.

Future legal developments and areas where competition law may be strengthened

The law is not static and there are a number of areas where the law is either unclear or the enforcement agency lacks specific powers. No doubt experience itself will reveal additional areas for modification or enhancement. Potential areas for future examination, enhancement and guidance include:

  • Continuing to ensure that the members of CCI are from a wide range of disciplines including law, business, finance and economics, and are economically and politically independent and that they are recruited on a permanent basis to facilitate the necessary capacity building and commitment to the CCI’s future development of expertise. A concern has been raised that at least in the early days the CCI has had a staff from government departments;
  • Reasserting the principle of prohibiting cartels as an enforcement priority in the practical application of competition law and advocacy. A notable feature of the CCI’s initial case record has been the weighting of abuse of dominance cases. Whilst preventing and sanctioning abuse of market power is a key plank of the legislation, the controversial nature of these cases can raise questions about the appropriate deployment of the CCI’s resources where budgets are tight. A focus on price fixing, market sharing and bid rigging would send a signal of a change in the underlying paradigm away from the MRTPA and towards a zero-tolerance of cartels;
  • Guidance on the CCI’s approach to calculation of the appropriate level of fines, leniency and powers to conduct unannounced inspections;
  • Guidance on the CCI’s approach to typical commercial practices such as the treatment of joint ventures under the behavioural or merger control provisions of the Competition Act and the circumstances in which efficiency enhancing vertical agreements may be compatible with competition law;
  • Abbreviated investigation procedures where investigated parties may be prepared to offer commitments or modifications to commercial practices;
  • Strengthening competition in regulated markets through increased cooperation with the sector regulators and establishing guidance on the appropriate demarcation between the two to improve the coherence of competition policy;
  • Increasing the role of competition law in state-controlled sectors;
  • Confronting the roles of consumer protection and price regulation and how these interface with the CCI’s role as an economic competition regulator;
  • Increasing consultation and cooperation with the international antitrust community (whether regulators, business or practitioners) to continue and enhance the CCI’s credibility and effectiveness globally.

Conclusion

The challenges of creating an effective enforcement regime and culture of competition compliance must not be underestimated. The CCI will have a critical role to play and has done much to lay the groundwork. As with any law with wide ranging commercial impact, business can also enhance this process by disseminating knowledge and experience of what constitutes a violation. For multinational companies with operations in India, educating local employees and monitoring local activities reduces the risk of competition law investigations. Further strengthening of the CCI is the key for effective enforcement but the CCI will also need to tread carefully if it is to command the respect of business that its enforcement is targeted to those cases which present serious risks to competition. Its early track record signals a determination to tackle problems that currently impede wider participation by India’s consumers in the benefits that robust competition may bring. However, matters are complicated by institutional arrangements and legacies of the old regime that may temper resolute action. While it may be too early to tell how effective it will be, an important factor will be how the CCI can encourage a fundamental change in attitudes among businesses, government and consumers to adopt a more vigorous approach to competition law enforcement and improve economic growth such that it is no longer ‘business as usual’ in India.

Suzanne Rab is a Partner in the Antitrust practice at King & Spalding in London. Suzanne advises clients across all areas of European and UK competition law. She has particular experience advising on transactions and behavioural matters, including in proceedings before the UK competition and regulatory authorities and the European Commission. She has worked on some of the most high profile merger, market and cartel investigations in Europe and the UK. Suzanne can be contacted at srab@kslaw.com.

 

 

By Suzanne Rab

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Indian Competition Law – The Enforcement Of Abuse Of Dominance Provisions

The Competition Act, 2002 (“Act”) was enacted in January 2003 but the enforcement of its antitrust provisions viz. against anti competitive agreements and abuse of dominant position commenced only in May 2009. During this period, while there have been relatively few orders of the Competition Commission of India (“CCI”), which is not surprising considering the long gestation period required by any new organization, – it is surprisingly the provisions of the Act relating to abuse of dominance that have gained the most prominence. This is primarily on account of the CCI orders imposing heavy penalties on two well known, high profile parties viz. National Stock Exchange of India Ltd. (“NSE”) and real estate major, DLF Limited (“DLF”).

Abuse of dominance is prohibited under section 4 of the Act wherein an enterprise is said to be dominant if it is able to operate independently of competitive forces prevailing in the relevant market or affect its competitors, consumers or the relevant market in its favour. The abusive practices enumerated in the section include:

  • directly or indirectly imposing unfair or discriminatory conditions or prices in purchase or sale of goods or services;
  • restricting or limiting production of goods and services, or the market, or limiting technical or scientific development relating to goods or services to the prejudice of consumers;
  • indulging in practices resulting in denial of market access in any manner;
  • making the conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or
  • using dominance in one market to enter into or protect other markets.

The Act also lays down in section 19(4) the factors that shall be considered by the CCI to determine if a dominant position exists. These include market share, entry barriers, dependence of the consumers on the enterprise, countervailing buying power, the size and resources of the enterprise, the size and importance of competitors and the economic power of the enterprise.

It is interesting to note the grounds on which the CCI found that NSE and DLF enjoyed a dominant position in their respective relevant markets and thereafter proceeded to conclude that these enterprises had abused their dominant positions.

Cases where abuse was found and punished

The first case in which the CCI found an allegation of abuse of dominance maintainable on evidence was MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd. and DotEx International Ltd. MCX-SX alleged abuse of dominance by NSE, which reduced certain charges in the Currency Derivatives (“CD”) segment which were normally levied by NSE in the other segments. The CCI defined the relevant market for the purposes of this case as the CD segment of the wider stock exchange market.

After giving due regard to the factors mentioned in section 19(4) (enumerated above), the CCI observed that NSE was dominant in the CD segment even though NSE had a mere 30% market share, the lowest among the three major competitors (namely, NSE, MCX and USE). The CCI observed that market share is not the sole determinant of dominant position of an enterprise; the size, resources and economic power of NSE were far greater than those of its competitors. The CCI found NSE in violation of sections 4(2)(a)(ii) (unfair or discriminatory pricing)and 4(2)(e) (uses its dominant position in one market to enter into or protect the other market) of the Act. For determining violation of section 4(2)(e), the CCI observed that “it is possible to take one market as the ‘relevant market’ for sub sections (a) to (d) of section 4(2) and the same market as the ‘other market’ for section 4(2)(e)”. Therefore, the CCI considered the ‘CD segment’ as the relevant market for section 4(2)(a)(ii) and the wider ‘market for stock exchange services’ as the relevant market for section 4(2)(e) of the Act. The CCI noted that NSE was not charging transaction fee, data feed fee, admission fee for membership, annual subscription charges, and advance minimum transaction charges in the CD segment. Also, the amount of cash deposit to be maintained by the (trading) members for this segment had been kept very low as compared to other segments. While MCX-SX, which had its operations in the CD segment only, was posting losses, NSE had not shown any variable costs and not even maintained separate accounts for the CD segment. The CCI observed that only a dominant entity could afford to do so and hence, after taking into consideration all the above factors, it concluded that NSE had abused its dominant position in the CD segment and accordingly, imposed a penalty of INR 555 million (approx. USD 12 million).

In the other high profile case, Belaire Owner’s Association v. DLF Limite, the CCI imposed a penalty of INR 6300 million (approx USD 140 million) on DLF for abusing its dominant position in the market. The case was filed by the owners’ of apartments in a real estate project developed by DLF. In its response, DLF’s preliminary contention was that as the apartment buyers’ agreements were signed before the concerned provisions of the Act came into force, and therefore, the CCI lacked jurisdiction. This argument was rejected by the CCI and it ruled that although the agreements were entered into before the Act came into force, since the provisions of the agreements were invoked after the enforcement of the Act commenced, the CCI had jurisdiction. In this case, the CCI defined the relevant market as the market for services of developer/builder in respect of high-end residential accommodation in Gurgaon (the town in question). While determining dominance, the CCI again emphasized the fact that market share is not the only determinant of dominance; the other factors, mentioned in section 19(4), had to be given due regard. Accordingly, the CCI took into account DLF’s gross fixed assets, capital employed, land bank in Gurgaon (DLF held 49% of total land bank), strength of its subsidiaries, and DLF’s size, resources, and economic power, and the power if its competitors.

The CCI rejected DLF’s contention that the conditions included in the agreement were ‘usual conditions’ and constituted an ‘industry practice’ and therefore, could not be said to have been imposed by abusing its dominant position, and that it was necessary for DLF to incorporate such clauses in order to remain competitive. Further, it was argued that such an agreement is fully protected under the explanation to sub section 2(a) of section 4 of the Act which provides for exceptional cases wherein discriminatory condition or pricing was adopted to meet competition.. However, the CCI noted that DLF had been operating in the market much before any competitor entered the market and as such had been a “trend setter”. It also stated that DLF was a market leader in the real estate segment and as such, it was DLF which would have initiated and developed the industry practice in question which was later followed by the new entrants in the market, and over the period of time was considered to be ‘industry practice’.

The decision of the CCI in this case (now under appeal before Competition Appellate Tribunal) has led to much debate in professional circles. A view has been expressed that this was typically a consumer-type complaint and should have been left to the consumer forums to decide. There has also been debate about whether the CCI correctly defined the relevant market by restricting it both product-wise (high end residential apartments) and geographically (confined to Gurgaon).

Cases where dominance found but abuse not found

In the case of M/s Pankaj Gas Cylinders Limited v. Indian Oil Corporation Limited (“IOCL”), the CCI found IOCL to be dominant but it did not find any abuse of its dominance by the company. IOCL had floated tenders inviting bids for supply of cylinders of 14.2 Kg capacity with SC valves. The tender had a clause that those bidders who were holiday listed/black listed by IOCL and two other government owned oil companies (BPCL and HPCL) could not bid for the contract. The investigation report submitted by the Director General, CCI observed that holiday listing is ordinarily in the nature of temporary restraint for a specified period and the restraint is limited to the extent of supply to the enterprise which had holiday listed the entity. Also, holiday listing is confined to a particular bid or the contract of supply and does not extend to other contracts with the holiday listed company. It was contended that the restrictive condition imposed by IOCL would have appreciable adverse effect on competition and also violates sections 4(2)(a)(i) i.e. imposing of unfair or discriminatory condition, and 4(2)(c) i.e. denial of market access, of the Act. As the per regulations, only government owned oil companies are allowed to market cylinders of 14.2 Kg and hence, such condition by IOCL would also have the effect of denial of market access as all the three government owned companies had been included by IOCL for the holiday/black listing restriction.

In this case, the CCI defined the relevant market as the market for 14.2 Kg capacity cylinders in India. The CCI found IOCL to be dominant considering that IOCL had 48.2% market share in the relevant market (BPCL and HPCL had around 26 % share each), 89 bottling plants and a wide network of offices which made it dominant in the relevant market.

IOCL contended that it was well within its right to protect its commercial interests as well as public interest and the same was sought to be achieved by putting only a temporary embargo upon a known defaulter. Also, such a temporary action would not amount to abuse of dominant position as it did not affect competition; on the contrary, it sent a strong message to unreliable players

It also submitted that the condition in the tender was neither unfair nor discriminatory as it was equally applicable to all the bidders and known to everyone. Further, the suppliers were not confined to manufacture of cylinders of 14.2 Kg only; they were free to supply cylinders of other dimensions to other buyers. IOCL further contended that the restriction on trade to sub-serve public interest should not be construed as an abuse. It also submitted that it was a common business practice that a person with undesirable conduct was precluded from participating in the tender process. Thus, if any supplier had defaulted in supply, the procurer company was well within its right not to deal with the defaulting supplier. The CCI concluded that the impugned clause did not contravene the provisions of section 4 of the Act and also, there was no appreciable adverse effect on competition in the relevant market.

In Explosives Manufacturers Welfare Association v. Coal India Limited and its Officers, the CCI found Coal India Limited (“CIL”) to be a dominant player in the relevant market but did not find any abuse by CIL.

The case pertained to an agreement entered into between CIL and IOCL-IBP for supply of explosives for five years, while earlier, the general practice by CIL had been to enter into a running contract for one year. The informant alleged, inter alia, contravention of sections 4(2)(b)(i) i.e.limiting production of goods or market, and 4(2)(c) of the Act.

The CCI defined the relevant market as ‘the market of bulk and cartridge explosives in India’. While defining the relevant market, the CCI considered the contention of CIL that since there were global players outside India who were also the consumers of industrial explosives, the relevant geographic market could not be confined to India only. However, the CCI observed that since the case was with reference to competition in India, the market within the territory of India would be the appropriate relevant market.

While determining the position of dominance, the CCI found that CIL was the biggest consumer of the product in question having a market share of around 65% with nine direct subsidiaries and two indirect subsidiaries, and in terms of size and resources it was superior to its competitors. CIL submitted that it had entered into an extended (five-year) contract for supply with IOCL–IBP to ensure uninterrupted supply. It further submitted that the contract was beneficial for consumers of coal and promoted the economic development of the country ensuring that it always had adequate and secure supplies of explosives to meet the needs of coal dependent industries.

CIL also drew the attention of the CCI to the fact that the constituent members of the informant association threatened to cut off the supply and had, on at least three occasions, collectively done so. CIL submitted that there was public interest involved in the continuity of business as coal is a crucial input for various industries such as electricity generation, steel manufacturing, fertilizers, liquid fuel, cement etc. It further submitted that the contract with IOCL-IBP was for only 20% of the total explosives required by CIL and this quantity was merely 13% of the total explosives consumption market in India. Thus, the suppliers were free to compete for the remaining supply requirements and there was no foreclosure of the market and no denial of market access either. Accordingly, the CCI did not find any contravention of section 4 of the Act.

Collective Dominance

In Consumer Online Foundation v. Tata Sky & Ors., the CCI observed that:

Indian law does not recognize collective abuse of dominance as there is no concept of ‘collective dominance’ in the Act, unlike in other jurisdictions such as Europe. The Act recognizes abuse of dominance by a ‘group’, which does not refer to a group of completely independent corporate entities or enterprises; it refers to different enterprises belonging to the same group in terms of control of management or equity.

It has been felt by some experts that the CCI should give serious thought to the issue of collective dominance, else collective action by a group of enterprises having no structural links could escape action by the CCI.

Conclusion

The enforcement practice in the above cases reflects the importance that the CCI is attaching to the abuse of a dominant position by large enterprises and it has sent out a clear signal that it would not hesitate to take action in such cases. In determining dominance, the CCI has asserted that market share would not be the sole factor, and the CCI would as well consider other factors listed in section 19(4), including the strength enjoyed by the alleged dominant enterprise outside the relevant market.

The CCI noted that any particular percentage of market share could not be designated as a parameter for dominance, and went on to find dominance with even a low market share of 30% when other supporting factors were present; it has stressed the need to take a “holistic approach”. Also, the CCI has taken into consideration inter alia the public and consumer interest as, for example, in the above cases where the alleged abuse of dominance was not found. The CCI has also given due regard to legitimate business interests of the companies while deciding on abuse, e.g. in the IOCL case, it observed that the procurer company was well within its rights not to deal with any defaulting supplier. Further, the CCI has so far taken the view that collective abuse of dominance by enterprises not having structural links was not contemplated in the Act.

Vinod Dhall is Chairman, Dhall Law Chambers, and former Head, Competition Commission of India. Mr. Dhall can be contacted at vinod.dhall@dhall-lawchambers.co. Alok Nayak is a final year law student at Gujarat National Law University, India and can be contacted at Aloknayak28@gmail.com.

 

 

By Vinod Dhall and Alok Nayak

 

Cross Border Investments – A Contemporary Appraisal : The Vodafone Tax Case

Businesses in the present day are growing vertically and horizontally across nations. Due to such international migration of businesses, the current challenges before a business are myriad, i.e., challenges of new laws and regulation, language, government and bureaucracy and amongst all an encounter with the local tax systems of each nation they seek to embark upon.

Every sovereign has been bestowed with the right to legislate and enact the tax laws for their territory and choose the best form of tax governance systems as it may suit the need of their economy. However, due to increased globalization and the world economy growing into a local market for all, every nation aims at aligning its tax system to promote capital inflows into its country.

Today, a stable tax framework is the necessary accessory for a government engaged in the welfare of people and growth of economy on the whole. More than the economic rationale, taxation also has a social utility of distributing wealth to create a fairer, and more organized community. Progressively, tax is also seen as a means of equalizing the market imperfections.

Thus, a fair tax regime is creating a balanced approach by raising revenue and sharing the same through effective expenditure for the public.

Another mandate for a fair tax policy in the globalised economy is certainty and stability in tax policies. The recent judgment of the Hon’ble Supreme Court of India in the case of Vodafone International Holdings B.V. involving a USD $2 billion tax claim is a classic example of the role of certainty in tax systems as the very premise of the judgment of the Supreme Court seems to be that the case involved genuine inflow of foreign capital and therefore with the aim of securing certainty, have accepted the structure.

The facts of the litigation that prevailed for over four years briefly posits that in 2007, Hutchison Telecommunications International Limited (“HTIL”), a Cayman Islands company, sold 100% of its interest in CGP Investments (Holding) Limited (“CGPC”), also a Cayman Islands company, to Vodafone International Holdings B.V. (“VIH BV”), a company incorporated in The Netherlands, for approximately US$11.08 billion. At the time of the sale, HTIL effectively controlled an interest of approximately 67% in Hutchison Essar Limited (“HEL”), which is based in India. The Indian tax authorities alleged that the sale of the CGPC shares had resulted in the transfer of shares of an entity (that is, HEL) to VIH BV and so attracted capital gains tax in India and VIH BV was therefore under an obligation to withhold taxes in respect of the acquisition under the provisions of Income Tax Act 1961 (the “Act”).

The highest court of India has announced its verdict in favour of Vodafone holding that the offshore transaction is not liable to be taxed in India as the same does not fall within the strict language of the charging provisions of the Act and therefore, in the interests of protecting foreign inflow of capital and providing certainty to the tax systems of the country, has held that the said investment cannot be dissected and should be looked at in its entirety.

The Supreme Court observed that tax planning is legitimate, provided, it is within the framework of law and that a colourable device or sham or subterfuge cannot be a part of tax planning. Further, they observed that holding structures are recognized in corporate as well as tax laws. It is a common practice in international law, which is the basis of international taxation, for foreign investors to invest in Indian companies through an interposed foreign holding or operating company, such as Cayman Islands or Mauritius-based company for both tax and business purposes.

The Court held that while scrutinizing such holding structures, one must adopt the “look at” principle according to which the Revenue or the Court must look at a document or a transaction in a context to which it properly belongs. While doing so, the Revenue/Courts should keep in mind the following factors: the concept of participation in investment; the duration of time during which the Holding Structure exists; the period of business operations in India; the generation of taxable revenues in India; the timing of the exit; and, the continuity of business on such exit.

There is a conceptual difference between a preordained transaction that is created for tax avoidance purposes, on the one hand, and a transaction that evidences investment to participate in India.

The Court has held that the Hutchison structure has been in place since 1994. Moreover, the SPA indicates “continuity” of the telecom business on the exit of HTIL and therefore, it cannot be said that the structure was created or used as a sham or avoid  tax as HTIL was not a “fly by night” operator/ short time investor.

To suggest in plain language, the application of tax laws should be certain which is the suggested mandate in view of the dipping of FDI inflows. According to Adam Smith, the Father of Economics, “a very considerable degree of inequality … is not near so great an evil as a very small degree of uncertainty.”

Therefore, the lessons that Vodafone judgment preaches is that for ensuring a fair tax system, changes to the underlying rules should be kept to a minimum and there should be a justifiable economic and/or social basis for any change to the tax rules and this justification should be made public and the underlying policy made clear.

An extreme view that emerges from the judgment is whether tax avoidance, which places a burden on taxpayers who do not, or cannot, avoid tax and thus creates unfairness in the tax system has been side-lined by the Indian judiciary on the mere pretext of absence of any specific legislation on the same with the sole objective of ensuring a continuous flow of foreign capital flows.

The immediate reaction that emerges from the business community is that all rational people will always attempt to minimize their tax bills within the four corners of law. Tackling tax avoidance in today’s scenario of cross border transactions can therefore be effective only if backed by legislation because of differing policy framework of taxation across the globe.

Thus, the pressing question that emerges is that to what extent the government should focus on ensuring competitive tax systems so as to encourage investment, capital and trade while the exchequer is seeking to raise their revenue streams by attacking cross border transactions and re-characterizing them to charge income to tax.

Mr. Aseem Chawla is a Partner, and Ms. Surabhi Singhi is an Associate, Amarchand & Mangaldas & Suresh A. Shroff & Co., based out of Delhi, India. Mr. Chawla leads the tax practice group of the firm and can be contacted at aseem.chawla@amarchand.com. Ms. Singhi is an Associate with the tax practice group of the firm and can be contacted at surabhi.singhi@amarchand.com.

 

 

By: Aseem Chawla and Surabhi Singhi

 

U.S. And India Key Legal Aspects Of Cross Border Business: A Recap

On January 19-21, the India Committee organized the ABA Section of International Law’s first event in India – “U.S. and India Key Legal Aspects of Cross Border Business” held at Mumbai’s gorgeous sea-facing Taj Lands End Hotel. Bringing together 178 participants, from India, USA as well as other Asian and European countries, the 2½ day event resulted in useful exchange of contacts for participants as well as sharing of legal and business insights into cross-border work between the US and India.

The conference opened with a gala dinner on Thursday, with opening remarks from Peter Haas, the U.S. Consul General in Mumbai, and Darius Khambatta, the Additional Solicitor General of the Government of India. The sessions over Friday and Saturday explored the legal and regulatory aspects, both of Indian investments into the U.S., as well as U.S. investments into India. Speakers shared their experiences on various key issues of cross-border investments, including taxation, immigration, franchise issues, intellectual property protection and dispute resolution. With uncanny timing, one of the most significant recent decisions for foreign investors in India, the Indian Supreme Court’s decision in the Vodaphone tax case came out during the lunch break on Friday, which made Vodaphone every panel’s favorite topic of discussion during the following sessions, as well as offline during Friday’s dinner. The positive outcome of the case and its implications on revitalizing the use of Mauritius and other offshore vehicles for transactions with India generated an additional layer of positive buzz to the goodwill created by the conference. (Indian tax authorities have since sought review of the decision before the Supreme Court, which is expected to be heard at the end of February.)

The organizers also pulled together pre-conference meetings with senior officials of the Securities Exchange Board of India (SEBI), the Bombay Stock Exchange and BNY Carnegie Mellon in Mumbai. The SEBI meeting was especially fruitful, with a refreshing exchange of information on matters of concern for Indian as well as US securities regulators, such as the parallel situations in India and US relating to consent decrees. NY District Judge Rakoff recently created waves by not accepting the U.S. Securities and Exchange Commission’s (SEC’s) settlement with Citibank where Citibank neither admitted nor denied the allegations. Similarly, SEBI is awaiting the decision in a Delhi High Court case filed to challenge the legal validity of consent orders. The SEBI officials expressed an interest in continuing interaction with U.S. legal professionals on such matters of mutual interest, and the India Committee is exploring ways and fora for this.

Richa Naujoks is an Associate in Nixon Peabody LLP’s Mergers & Acquisitions and Public Transactions teams. She can be contacted at rnaujoks@nixonpeabody.com.

 

 

By Richa Naujoks

India’s Competition Law – What Has Really Changed?

India’s modern competition law, introduced by the Competition Act 2002 (the Competition Act), has had a long and often troubled period of gestation. Although the Competition Act was enacted by the Indian Parliament and published in 2003, it has been dormant over a number of years and seen a piecemeal implementation. Since 2005, India has had a dedicated competition regulator – the Competition Commission of India (“CCI”) – which began to build capacity even before its was vested with formal powers. It has been trying to make India’s markets more competitive by cracking down on restrictive practices in industries ranging from airlines, to films, financial services and real estate.

In May 2009, the legal provisions on anticompetitive agreements (section 3 of the Competition Act) and abuse of a dominant position (section 4 of the Competition Act) came into effect. With the implementation of mandatory merger control effective from 1 June 2011, India can claim to have joined the ranks of over 100 countries worldwide with modernised competition laws. The new package of laws significantly updates India’s existing competition law framework which was considered ‘lacking in teeth’. The Competition Act, largely modelled on EU law and influenced to some extent by similar legislation in the U.S., has to be assessed in terms of its adequacy for the specific challenges India faces as an expanding economy.

This article outlines the main developments to date and their impact on businesses in India and on operations in India now and in the near term. Rather than taking a static view of the law and practice, it seeks to identify areas where the law may be made more effective in the future.

Agreements and commercial practices

The Competition Act has brought about a sea change in the way competition law operates in India. Enterprises with operations in, or whose activities outside, have a nexus with India need to examine their existing and proposed commercial practices for compliance with the Competition Act.

The Competition Act regulates two main categories of commercial behaviour: agreements and abuse of market power.

Section 3 of the Competition Act prohibits two categories of agreements: horizontal agreements (between businesses at the same level in the supply chain such as two manufacturers); and vertical agreements (between businesses at different levels in the supply chain such as a manufacturer and retailer). The provisions are broadly analogous to the provisions on anticompetitive agreements under Article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act in the U.S. The CCI has sufficiently wide jurisdiction to bring under its ambit agreements and arrangements taking place outside India, provided that they have an “appreciable adverse effect” (“AAE”) on competition in India.

There are some India-specific aspects to regulation of agreements. For example, horizontal arrangements relating to price, production, supply, or market sharing are presumed anticompetitive under the Competition Act. The scope to establish the legality of such arrangements would therefore appear limited. There are no general exemptions for defined categories of agreements that could be likened to the block exemptions that exist in the EU (essentially, group exemptions which automatically exempt certain categories of agreement falling within their terms). Such block exemptions assist companies to determine the legality of their agreements where certain conditions are met, including as to market share and the non-inclusion of certain hardcore restrictions such as resale price maintenance. Finally, there is only a very limited defence, i.e in the case of a joint venture improving efficiency – a concept which is yet untested.

Section 4 of the Competition Act prohibits companies with market power (a dominant position) from abusing that position. Market share is a starting point for determining dominance, but neither the Competition Act nor specific guidance from the CCI provides a ‘bright line’ market share test for determining when a company may be considered dominant for Indian competition law purposes. As in the EU, it is not the holding of a dominant position that is unlawful; only its abuse can be unlawful. Companies with a significant market position in India will therefore need to consider whether their commercial practices may be considered abusive. Examples of such abusive conduct include predatory (below cost) pricing, discriminatory pricing, denial or restriction of market access, and tying or bundling.

The CCI’s enforcement over the past two years indicates that it will not shy away from disallowing anticompetitive practices. In May 2011, the CCI found an infringement of section 3 of the Competition Act involving United Producers/Distributors Forum, The Association of Motion Pictures and TV Programme Producers. The three parties collectively comprise 27 film producing entities and were each fined 100,000 rupees (approximately USD 2,200/Euro 1,500) after the CCI found that they had unlawfully engaged in anticompetitive agreements to collectively stop distribution of films thereby, depriving consumers of choice as new films were not released.

The first case involving a fine imposed for abuse of dominance was against the National Stock Exchange of India (“NSE”), which was fined 5 per cent of average turnover, equating to 55.5 million rupees (approximately USD 1.2 million/Euro 836,000) for engaging in predatory pricing. The majority of members of the CCI considered that the zero pricing harmed competition and that NSE was leveraging its dominant position in other derivatives market segments to undercut competitors.

A second, and the most recent, case resulting in a fine for abuse of dominance represents the most substantial penalty to date, where the real estate company DLF Ltd was fined 7 per cent of average turnover, equating to 6.3 billion rupees (approximately USD 138 million/Euro 95 million). The CCI received a complaint from real estate association Belaire Owner’s Association (“BOA”) against DLF. DLF was to build a new apartment block for BOA in the outskirts of New Delhi. According to the agreement, the building was to have 19 floors and be completed in 36 months. BOA alleged that DLF changed the terms of the agreement by building 29 floors which delayed completion. BOA alleged that the result of the delay was that hundreds of apartment allottees incurred financial losses since they had to wait indefinitely for occupation of their apartments. The CCI considered that DLF had abused its dominant position against a vulnerable section of consumers who had little ability to act against the abuse. An appeal against the CCI’s decision is pending before the Indian Competition Appellate Tribunal.

While the absolute level of fines may not be particularly significant by international or absolute comparisons, these cases suggest that the CCI is adopting a deterrent approach as in the DLF case the CCI came close to imposing the maximum level of fine of 10 per cent of turnover.

Mandatory notification and review of mergers and combinations

Companies contemplating or engaging in merger and acquisition activity will need to consider how the merger control process in India will affect the timing and likelihood of successful implementation of their transactions in all markets where they do business. Recent global deals , prior to the implementation of mandatory merger control in India on 1 June 2011 including transactions concerning Kraft and Cadbury and Tata Motors and Ford, have involved Indian operations but were not subject to competition law scrutiny in India. For example, U.S. food manufacturer Kraft’s acquisition of UK confectionary maker Cadbury included the acquisition of Cadbury India which was considered as a prize asset consistent with a decentralisation strategy and expansionary focus. In 2008, India’s largest motor vehicles manufacturer Tata Motors announced that it had purchased the Land Rover and Jaguar brands from Ford Motors for £2.3 million. Two leading luxury car brands were added to its portfolio of brands. In the future, mandatory merger control in India and the power of the CCI to prohibit transactions or accept remedies will give the CCI tools to deal with cross-border activity affecting its markets and to determine whether such transactions give rise to an AAE on competition in India.

The CCI has a set period of 30 days from a notification being accepted in which to conduct an assessment and deliver a “prima facie opinion” as to whether the combination will, or is likely to, have an AAE on competition in the relevant market in India. If the CCI raises initial concerns that cannot be resolved by remedies that the parties are able or willing to offer, an in-depth review may be launched. The CCI has to make an “endeavour” to clear transactions within 180 days.

The CCI completed its first merger review within two weeks. The CCI cleared Reliance Industries Ltd’s buyout of Bharti Enterprises’ interest in an insurance joint venture with French insurer AXA SA. Reliance Industries is a new entrant in the Indian insurance industry and does not have a presence in India’s general or life insurance markets. Businesses will take some comfort that this transaction was reviewed swiftly. However, this needs to be viewed in context, since the case did not raise material competition issues.

Penalties with clout

The consequences of non-compliance may be serious in terms of significant financial penalties including up to 10 per cent of turnover for agreements and commercial practices; void agreements; impacts on M&A in terms of timing and modifications to secure clearance and harm to reputation and shareholder value as a result. The CCI has already imposed fines for violation of the prohibitions on anticompetitive agreements and abuse of a dominant position. However, the CCI has not yet provided any clarity on how it determines penalties other than to say that the fine must be “commensurate” to the violations.

Competition law enforcement trends emerging

As with any new law in the early stages of adoption, it can be difficult to chart the path that the regulator will take in prioritising its enforcement. In the absence of detailed case law and guidance under the Competition Act, the case law under the Monopolies and Restrictive Trade Practices Act, 1969 (‘MRTPA”) is likely to be a starting point for enforcement priorities. However, since it is intended that the new law represents a ‘clean break’ from the old, the CCI will be determined to establish its own way. It is likely that the experience of competition enforcers outside India, in particular in Europe and the U.S., can be expected to provide insights on how the law will be applied in practice. It is interesting to see that the CCI is already citing EU cases to substantiate their analysis and conclusion(s). Businesses under investigation can therefore serve themselves well by strengthening their arguments and evidence with international competition case law precedents where relevant.

The CCI has already begun to turn its gaze to particular industries presenting competition issues including airlines, cement, motion pictures, real estate, shipping, technology and telecoms. Businesses dealing in commoditised sectors or mature markets or facing low margins are likely to be subject to particular scrutiny owing to the obvious risk of collusion in such markets. Other future areas for intensified competition enforcement could include the energy, financial services, and pharmaceutical sectors. These sectors are vital to the economy, health and development of India and have been the subject of recent competition inquiries in Europe and the U.S. It would not be surprising if, in the future, the CCI follows the international competition law brethren with inquiries in these areas.

Risk management

Businesses may adopt mechanisms to manage the risks and opportunities presented. This recognises that an awareness of how competition law impacts businesses in practice may identify areas where the law can be used to business advantage, for example where a company is the victim of anticompetitive practices by others. The steps that can be taken vary from business to business but will tend to involve: conducting a competition law risk assessment; developing a competition law policy; devising a competition law manual, developing fact-specific guidelines and case studies; conducting employee training; and regular competition law audits and monitoring. The CCI has issued guidance to businesses on how to create effective compliance programmes.

Future legal developments and areas where competition law may be strengthened

The law is not static and there are a number of areas where the law is either unclear or the enforcement agency lacks specific powers. No doubt experience itself will reveal additional areas for modification or enhancement. Potential areas for future examination, enhancement and guidance include:

  • Continuing to ensure that the members of CCI are from a wide range of disciplines including law, business, finance and economics, and are economically and politically independent and that they are recruited on a permanent basis to facilitate the necessary capacity building and commitment to the CCI’s future development of expertise. A concern has been raised that at least in the early days the CCI has had a staff from government departments;
  • Reasserting the principle of prohibiting cartels as an enforcement priority in the practical application of competition law and advocacy. A notable feature of the CCI’s initial case record has been the weighting of abuse of dominance cases. Whilst preventing and sanctioning abuse of market power is a key plank of the legislation, the controversial nature of these cases can raise questions about the appropriate deployment of the CCI’s resources where budgets are tight. A focus on price fixing, market sharing and bid rigging would send a signal of a change in the underlying paradigm away from the MRTPA and towards a zero-tolerance of cartels;
  • Guidance on the CCI’s approach to calculation of the appropriate level of fines, leniency and powers to conduct unannounced inspections;
  • Guidance on the CCI’s approach to typical commercial practices such as the treatment of joint ventures under the behavioural or merger control provisions of the Competition Act and the circumstances in which efficiency enhancing vertical agreements may be compatible with competition law;
  • Abbreviated investigation procedures where investigated parties may be prepared to offer commitments or modifications to commercial practices;
  • Strengthening competition in regulated markets through increased cooperation with the sector regulators and establishing guidance on the appropriate demarcation between the two to improve the coherence of competition policy;
  • Increasing the role of competition law in state-controlled sectors;
  • Confronting the roles of consumer protection and price regulation and how these interface with the CCI’s role as an economic competition regulator;
  • Increasing consultation and cooperation with the international antitrust community (whether regulators, business or practitioners) to continue and enhance the CCI’s credibility and effectiveness globally.

Conclusion

The challenges of creating an effective enforcement regime and culture of competition compliance must not be underestimated. The CCI will have a critical role to play and has done much to lay the groundwork. As with any law with wide ranging commercial impact, business can also enhance this process by disseminating knowledge and experience of what constitutes a violation. For multinational companies with operations in India, educating local employees and monitoring local activities reduces the risk of competition law investigations. Further strengthening of the CCI is the key for effective enforcement but the CCI will also need to tread carefully if it is to command the respect of business that its enforcement is targeted to those cases which present serious risks to competition. Its early track record signals a determination to tackle problems that currently impede wider participation by India’s consumers in the benefits that robust competition may bring. However, matters are complicated by institutional arrangements and legacies of the old regime that may temper resolute action. While it may be too early to tell how effective it will be, an important factor will be how the CCI can encourage a fundamental change in attitudes among businesses, government and consumers to adopt a more vigorous approach to competition law enforcement and improve economic growth such that it is no longer ‘business as usual’ in India.

Suzanne Rab is a Partner in the Antitrust practice at King & Spalding in London. Suzanne advises clients across all areas of European and UK competition law. She has particular experience advising on transactions and behavioural matters, including in proceedings before the UK competition and regulatory authorities and the European Commission. She has worked on some of the most high profile merger, market and cartel investigations in Europe and the UK. Suzanne can be contacted at srab@kslaw.com.

 

 

By Suzanne Rab

Merger Controls In India

Introduction

Merger control is considered to be one of the most important pillars of competition law and policy worldwide. The main purpose behind merger control is to ensure that mergers do not create adverse conditions for competition in the relevant market. For a long period of time, this important aspect of competition law was not made effective in India. However, after much debate and deliberation, the merger control provisions under the (Indian) Competition Act, 2002 (“Act”) and the allied Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 (the “Combination Regulations”) which sets out the scheme for implementing the merger control provisions under the Act, came into effect from June 1, 2011.

Merger Control Provisions Under the Act

Section 5 and 6 of the Act are the operative provisions dealing with merger control in India. Section 5 prescribes worldwide and Indian assets and turnover thresholds for transactions involving the acquisition of an “enterprise” or mergers and amalgamations of an enterprise that will be subject to merger control (i.e., require prior approval of the Competition Commission of India (the “CCI”)). An “enterprise” under the Act means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any body corporate, either directly or through one or more units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space. Section 6 prohibits combinations that cause or are likely to cause an appreciable adverse effect on competition (“AAEC”) within the relevant market in India and treats such combinations as void.

Consequently, any acquisitions of shares, voting rights, control, assets, merger or amalgamation meeting the specified asset/turnover thresholds (“Combination”) require prior notification to, and approval from, the CCI. Section 5 enumerates three types of transactions necessitating prior approval from the CCI:

  • acquisition of control, shares, voting rights or assets of one or more enterprises by one or more persons (Section 5(a));
  • acquisition of control by a person over an enterprise when such person already hasdirect or indirect control over an enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service (Section 5(b)); and
  • merger or amalgamation (Section 5(c)).

The Ministry of Corporate Affairs has, on March 4, 2011, also published a series of notifications, increasing the asset/turnover thresholds by 50% (on the basis of wholesale price index) and providing for an exemption to certain categories of enterprises from the scope of the merger control provisions (“Notifications”).

Exempted Transactions

The Notifications exempt Combinations from the mandatory filing requirement for a period of 5 years where the target enterprise, including its divisions, units and subsidiaries has:

  • either assets not exceeding Rs. 250 crores (USD 50 million approximately*) in India; or
  • turnover not exceeding Rs. 750 crores(USD 150 million approximately*) in India; (“Target Exemption”).

* The Combination Regulations provide that the exchange rate to be used to determine whether thresholds are met is the average of the spot rate published by the Reserve Bank of India for the six months prior to the trigger event. However, for ease of reference, the exchange rate used throughout this article is 1 USD = Rs. 50.

The intent behind the Target Exemption is to provide a ‘local nexus’ requirement thereby excluding global transactions having ‘insignificant’ local nexus and impact on the relevant market in India. Interestingly, the Combination Regulations separately provide an exemption for Combinations occurring outside India having an insignificant local nexus and impact on the relevant market in India (as discussed below). However, the term ‘insignificant’ remains undefined thus leaving scope for interpretation.

The Notifications also exempt, for a period of 5 years, enterprises exercising less than 50% of voting rights in the other enterprise to be treated as part of the same ‘Group’. Consequently, the asset and turnover figures of an enterprise in which the other enterprise holds less than 50% voting rights will not be aggregated for the purposes of determining the notifiability of a proposed Combination under the “Group test” (as discussed below).

The Combination Regulations also list out (under Schedule I) various Combinations which are not “ordinarily” likely to cause AAEC in India and would not “normally” require a notification to the CCI:

  • Direct or indirect acquisitions, of not more than 15% of shares or voting rights of a target company (including through shareholders’ agreements or articles of association), solely for investment purposes or in the ordinary course of business, not leading to acquisition of control;
  • Acquisitions above 50%: Acquisitions where the acquirer already holds 50% or more of the shares or voting rights in the target, except in cases where the transaction results in transfer from joint to sole control. In the case of the proposed acquisition of UTV Software Communications Limited by Walt Disney Company (Southeast Asia) Private Limited (“Walt Disney”) (C-2011/08/02), resulting in transfer of joint control to sole control, the CCI granted its approval on the basis that the relevant market was wide and fragmented with low entry and exit barriers and that the parties to the transaction operated in different segments, i.e., there were no horizontal or vertical overlaps;
  • Asset acquisitions: Acquisition of assets, not directly related to the business of the acquirer or made solely as an investment, or in the ordinary course of business, not leading to control of the target, except where the assets represent substantial business operations in a particular location or for a particular product/service of the target, irrespective of whether such assets are organized as a separate legal entity or not. As of December 2011, the CCI has cleared three merger filings in relation to an acquisition of assets on a going concern basis by another enterprise by way of a slump sale. (See G&K/Wockhardt (C-2011/08/03), AICA Laminates/BBTCL (C-2011/09/04), NHK Automotive/BBTCL (C-2011/10/05) ) ;
  • Amended/renewed tender offers: An amended or renewed tender offer, where notice has been filed by the party making such an offer;
  • Routine business acquisitions: Acquisition of stock-in-trade, raw materials, stores and spares in the ordinary course of business;
  • Bonus/rights issue/stock-split: Acquisition of shares or voting rights pursuant to bonus issue, stock splits, consolidation of face value of shares or subscription to rights issue to the extent of entitlement, not leading to acquisition of control;
  • Underwriting/stock-broking: Acquisition of shares by a securities underwriter or registered stock broker (on behalf of its clients), in the ordinary course of business;
  • Intra-group acquisitions: Acquisition of control, shares, voting rights or assets by a person or enterprise of another person or enterprise within the same group. In the Alstom Holdings/Alstom Projects case (C-2011/10/06.), Alstom Holdings (India) Limited proposed to merge into Alstom Projects India Limited pursuant to a scheme of amalgamation under the Companies Act, 1956. The CCI approved the proposed Combination by taking into account the fact that both parties were engaged in completely different business activities, and also that there would be no change in the management of the companies, as the parties to the proposed Combination were part of the same group. The CCI has further approved nine intra-group reorganization by way of merger or amalgamation;
  • Current assets: Acquisition of current assets, in the ordinary course of business; and
  • Purely offshore: Combinations taking place entirely outside India with “insignificant” local nexus and effect on markets in India.

The usage of term(s) “ordinarily” and “normally” leads to uncertainty leaving the onus on parties to determine whether a transaction is “extra-ordinary” and thus likely to cause an AAEC in India. Such ambiguous wording allows the parties two choices: (a) notify all transaction(s) which to the best of their judgment is likely to cause an AAEC in India; or (b) to take a gamble of not notifying the transaction, in which case the CCI may use the “look back” provision under Section 20(1) of the Act. This provision provides the power to the CCI to inquire, within one year of the Combination taking effect, whether the Combination has caused or is likely to cause an AAEC in India. However, the erstwhile Chairman of the CCI has publicly stated that Schedule I would operate as exemptions and parties can derive some comfort from this statement.

Notification Thresholds

The merger control provisions under the Act, prescribe the following thresholds, for notification of a transaction:

  • Target Test – Any enterprise, whose control, shares, voting rights or assets are being acquired, has either assets of the value of not more than Rs. 250 crores (approximately USD 50 million) in India or turnover of not more than Rs. 750 crores (approximately USD 150 million) in India, is exempt from the purview of the merger control provisions under the Act, for a period of five years (“Target Exemption”).
  • Parties Test – In order to determine as to whether the thresholds (provided in the table below) are breached, in case of an acquisition, the combined value of the acquirer (on a standalone basis) and target enterprise (including its subsidiaries, units, or divisions) is to be considered. However, in case of a merger or amalgamation, the asset/turnover figures for the enterprise remaining after the merger or enterprise created pursuant to an amalgamation has to be taken into consideration.
  • Group Test: The Group test is applicable to the group to which the target enterprise would belong post the acquisition or merger or amalgamation.

The thresholds prescribed under Section 5 of the Act are provided below:

 

 

 

 

 

In India

 

 

Applicability

 

Assets

 

Turnover

 

For individual parties (i.e. acquirer and target)

(Combined)

 

Rs. 1,500 crores

(USD 300 million)*

 

Rs. 4,500 crores

(USD 900 million)*

 

For ‘Group’ (to which target belongs post- acquisition)

 

Rs. 6,000 crores

(USD 1.2 billion)*

 

Rs. 18,000 crores

(USD 3.6 billion)*

 

 

 

 

 

 

 

 

 

In India and Outside India

 

 

Applicability

 

Assets

 

Turnover

 

Total

 

Minimum in India

 

Total

 

Minimum in India

 

For individual parties

(i.e. acquirer and target)

(Combined)

 

USD 750 million

 

Rs. 750 crores

(USD 150 million)*

 

USD 2.25 billion

 

Rs. 2,250 crores

(USD 450 million)*

 

For ‘Group’ (to which target belongs post- acquisition)

 

USD 3 billion

 

Rs. 750 crores

(USD 150 million)*

 

USD 9 billion

 

Rs. 2,250 crores

(USD 450 million)*

* Assuming the exchange rate of 1 USD = Rs. 50.

Determination of the relevant market

From a merger control perspective, determination of the relevant market is critical to determine the effect of the proposedCombination. Under the Act, the term ‘relevant market’ includes both the ‘relevant product market’ (i.e., market comprising all those products/services which are regarded as interchangeable or substitutable) and the ‘relevant geographic market’ (i.e., market comprising the area in which the conditions of competition for demand or supply are distinctly homogenous and distinguishable). After the determination of the relevant market, the next step is to consider whether the proposed Combination causes or is likely to cause an AAEC in India or not. The factors for assessing an AAEC set out in Section 19(3) of the Act are as follows:

  • actual and potential level of competition through imports in the market;
  • extent of barriers to entry into the market;
  • level of Combination in the market;
  • degree of countervailing power in the market;
  • likelihood that the Combination would result in the parties to the Combination being able to significantly and sustainably increase prices or profit margins;
  • extent of effective competition likely to sustain in a market;
  • extent to which substitutes are available or are likely to be available in the market;
  • market share, in the relevant in market, of the persons or enterprise in a Combination, individually and as a Combination;
  • likelihood that the Combination would result in the removal of a vigorous and effective competitor or competitors in the market;
  • nature and extent of vertical integration in the market;
  • possibility of a failing business;
  • nature and extent of innovation;
  • relative advantage, by way of the contribution to the economic development, by any Combination having or likely to have an AAEC; and
  • whether the benefits of the Combination outweigh the adverse impact of the Combination, if any.

Forms

The Combination Regulations provide for three types of forms for the purpose of notification to the CCI:

  • Form I: All Combinations are “ordinarily” notifiable in Form I (short form), which is the default option, including for the following Combinations:
  • Where there are no horizontal or vertical overlaps;
  • Where the enterprises are predominantly engaged in exports of goods or services (i.e., constituting at least 75% of its turnover) from India and continue to be engaged in exports even after the Combination takes effect, provided that the market share of the combined entity is less than 15% in the relevant market in India;
  • Where an acquisition or acquiring of control over an enterprise is by a liquidator, administrator or receiver appointed through court proceedings or through any scheme approved under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or under the Sick Industrial Companies(Special Provisions) Act, 1985;
  • Wherethe acquisition is resulting from a gift or inheritance;
  • Where there is an acquisition of a trustee company or change of trustees of a mutual fund established under the Securities and Exchange Board of India (Mutual Fund) Regulations, 1996;
  • Where there is a horizontal overlap but the combined market share of the parties to the Combination is less than 15% (de-minimis horizontal overlap);
  • Where there is a vertical overlap but the individual or combined market share of the parties to the Combination is less than 25% (de-minimis vertical overlap).
  • Form II: Parties to the Combination also have an option of filing Form II, which is a long form. While Form I is a very simple form and requires basic details of the parties to the Combination and the transaction, Form II is fairly extensive and requires minute details regarding the proposed Combination, including details such as analysis, reports, surveys, ownership details of the parties and groups, details of all the products of the parties, end use, etc. In cases where the parties have filed Form I and the CCI is of the opinion that Form II should have been filed, it can direct the parties to re-file the notice in Form II. Further, the time taken by the parties to the Combination in having incorrectly filed Form I will not be taken into account. Therefore, it becomes significant for the parties (from the point of view of time and acquisition financing cost) to accurately determine the appropriate form in which the filing has to be made with the CCI.
  • Form III: This is a post-facto intimation form which is required to be filed in case of share subscription or financing facility or any acquisition by public financial institutions, foreign institutional investors, banks and venture capital funds, pursuant to any covenant of a loan agreement or investment agreement.

Trigger Events for notification of the Combination

Parties are required to file a notification with the CCI in either Form I or Form II within 30 days of:

  • approval of the proposed merger or amalgamation by the boards of directors of the enterprises concerned;
  • execution of any binding agreement or “other document” for acquisition or acquiring of control. The term “other document” refers to (a) any binding document, by whatever name called, conveying an agreement/decision to acquire control, shares, voting rights or assets; and (b) for hostile acquisitions, any document executed by the acquirer conveying a decision to acquire.

In case the documents have not been executed but the intention to acquire is communicated to the Central Government/State Government or any statutory authority, the date of such communication will be the date of execution of the other document. Under Section 20(1) of the Act, the CCI has the power to initiate a suo moto inquiry into a Combination which was not notified to it, for up to one year from the date the Combination has taken effect.

Timelines

  • The Act provides for a 210 day period for the CCI to reach a final decision, failing which, the transaction is deemed to be approved. Given the mandatory suspensory regime, no transaction in which the merger filing has been made can be completed before receiving approval from the CCI.
  • However, the CCI is required to form a prima facie opinion on whether a Combination is likely to cause an AAEC, within the relevant market in India, within a period of 30 days from receipt of the notification. The CCI gets an additional period of 15 days in case the parties to a Combination propose a modification before the CCI forms a prima facie opinion in relation to the proposed Combination.
  • The CCI can ‘stop the clock’ for defects or until such time as any information requested from the parties remains outstanding. The timelines for the review process are therefore not absolute.
  • In case the CCI forms a prima facie opinion that a Combination is likely to cause an AAEC, a more detailed investigation will be conducted. Thus, the merger control process can be viewed as a two phase process:
  • Phase 1 (Prima Facie Opinion) – In the Phase 1 period, the CCI can take upto 30 calendar days to form a prima facie opinion on whether a Combination is likely to cause an AAEC, or subject it to further investigation (45 calendar days, if modifications are offered by the parties); and
  • Phase 2 – In Phase 2, clearance may take a further 180 calendar days where a detailed investigation will be carried out by the CCI in those transactions where the CCI in its prima facie opinion believes that an AAEC in India is likely to be caused.

Extraterritoriality

Section 32 of the Act empowers the CCI to initiate inquiry into a Combination taking place outside India if such Combination has or is likely to cause an AAEC in India and to pass such order as it may deem fit. However, the Combination Regulations provide for a local nexus and effects test on the relevant market in India.

Penalties

  • The Act provides for severe penalties on parties for any non-compliance of its provisions. In case a person or enterprise fails to notify any Combination, the CCI has the power to impose a penalty which may extend up to 1% of the total turnover or assets, whichever is higher, of such Combination. In addition, where a Combination has or is likely to have an AAEC in India, the Combination (and presumably all acts in furtherance of the transaction) is void as a matter of Indian law.
  • Additionally, any non-compliance with the orders of the CCI can attract a monetary penalty up to Rs. 25 crores (approximately USD 5 million)* or imprisonment of up to three years or both. The Act also imposes personal liability on the persons in-charge and responsible for the conduct of the company, for contravention of any of the provisions of the Act.

* Assuming the exchange rate of 1 USD = Rs. 50.

Recent Trends

The recent trends emerging from the various Combination orders passed by the CCI are as follows:

  • No merger filing trigger on ‘option to acquire’

In the Reliance/Bharti AXA case, the proposed agreement for acquisition by Reliance Industries Limited (“RIL”) and Reliance Industrial Infrastructure Limited (“RIIL”) of a 74% stake in each of the joint venture companies between the Bharti entities and AXA contemplated an ‘option’ by which AXA would acquire up to 24% shareholding in the two joint ventures companies from RIL and RIIL as and when FDI Regulations permit such holding by AXA. The CCI order in relation to this merger approval suggests that in case of ‘option to acquire’, the determination from a competition perspective can only be made at the point when the transaction happens, for e.g. at the time the option is exercised and the “acquisition” takes place. Therefore, filing should, and can, be made only at the conversion stage (not at the time of grant). However, in this case, AXA’s option to acquire further shares was not an integral part of RIL’s and RIIL’s acquisition. Therefore, in a clearly inter-connected transaction the position may be different.

  • Joint to sole control is notifiable

In the Walt Disney/UTVcase, it was stated that the acquisition of shares by an enterprise holding 50% or more shares in another enterprise resulting in transfer from joint control to sole control is notifiable under Section 6(2) of the Act and is excluded from exemption under Regulation 4, read with Item 2 of Schedule I of the Combination Regulations.

  • Intra-group reorganization by way of merger or amalgamation not exempted

An intra-group reorganization does not affect the competitive landscape and should not come under the purview of competition law. Also, the Combination Regulations exempt an intra-group reorganization by way of an acquisition. The availability of Intra-group exemption in case of internal re-organization by way of mergers and amalgamations was always a debatable topic considering the absence of the express wordings under Item 8 of Schedule I of the Combination Regulations in this regard. However, this debate was put to rest by the CCI in the Alstom Holdings/Alstom Projectscase where an internal reorganization by way of a scheme of amalgamation was cleared by the CCI on merits. The unfortunate implication of this ruling is that now, all internal reorganization by way of mergers and amalgamations would have to be notified to the CCI for clearance even though there is no distinction between an acquisition, merger or amalgamation as a mode of corporate reorganization.

 

The CCI, in three merger control reviews, has indicated that in the case of slump sales, or the sale of business divisions (i.e., less than an “enterprise” under the Act) the entire asset and turnover of the vendor enterprise has to be taken into consideration for determining the asset/turnover thresholds. Therefore, in such cases, the parties to the transaction cannot apply the thresholds for the Target Exemption or the Parties test to the business division being acquired, but to thresholds the vendor enterprise in its entirety. (i.e. G&K Baby Care Private Limited/Wockhardt Limited (C-2011/08/03), AICA Laminates /BBTCL (C-2011/09/04) and NHK Automotive/BBTCL, (C-2011/10/05).)

Grey Areas

As competition law in India is at a nascent stage, there are several grey areas under the Act and the Combination Regulations, with respect to merger control:

  • Treatment of Joint Ventures under Section 5

It is important to note that the formation of a joint venture is not specifically covered by Section 5 of the Act. The merger control provisions of the Act only cover acquisitions, mergers and amalgamations. The Act also does not make any distinction between “full function” and “non-full function” joint ventures. Further, there is no distinction as regards the treatment of ‘greenfield’ joint ventures and ‘brownfield’ joint ventures.

  • Insignificant local nexus exemption

Item 10 of Schedule I of the Combination Regulations exempts the notification of a combination taking place entirely outside India with insignificant local nexus and effect on markets in India. However, the word ‘insignificant local nexus’ has not been defined, leaving the parties with no guidance as regards the criteria to be applied determine the ‘insignificance’ of the Indian nexus of any combination taking place outside India.

Conclusion

Since June 1, 2011, the CCI has approved nineteen merger filings at a swift pace, which has given Indian industry the much needed comfort that the CCI merger clearance process will not be unnecessarily long drawn. However, these are early days and the next few months are likely to see several merger filings which would be the true test of the CCI’s responsiveness. Also, the notifying parties are presently facing several interpretational issues from a merger filing standpoint due to ambiguities in the Act and the Combination Regulations. It is expected that the grey areas under the Act and the Combination Regulations in relation to merger control provisions would be addressed either through express clarifications or through the jurisprudence emerging from the orders of the CCI. Irrespective of that, merger control is here to stay in India and will have significant implications on inorganic growth through M&As, particularly India-centric M&A transactions, both within India and offshore.

Ashish Jejurkar is a Partner and Nisha Kaur Uberoi is a Principal Associate at Amarchand & Mangaldas & Suresh A. Shroff & Co. They specialize in M&A, General Corporate and Securities law. They can be contacted at ashish.jejurkar@amarchand.com and nishakauruberoi@amarchand.com.

 

 

By Ashish Jejurkar and Nisha Kaur Uberoi

 

Impact Of Competition Law On Indian Real-Estate Sector- An Analysis Of The Recent Order Against DLF

BACKGROUND

In the wake of economic liberalization and widespread economic reforms introduced in India since 1991 and in its attempt to march from a “Command and Control” regime to a regime based on free market principles, India replaced its archaic Monopolies and Restrictive Practices Act, 1969 with a modern competition law, in sync with modern and internationally established competition law principles, in the form of the new Competition Act, 2002 (“the Act”). The Act, though enacted in 2002, remained under challenge before the Supreme Court and was amended in accordance with the directions of the Supreme Court in 2007. The Central Government notified selected portions relating to prohibition of “anti competitive agreements” (Section 3) and “abuse of dominant position” (Section 4) on 20th May, 2009 and the portions relating to “regulation of combinations” (Section 6) i.e. regulation of mergers and acquisitions etc. has been notified with effect from 1st June 2011. The provisions of the Act are all encompassing and cover all sectors of our economy, including the real estate sector.

On Friday, August 12, 2011, a tectonic incident jolted the real estate industry in India. The Competition Commission of India (“CCI”), the competition regulator created under the Act, that is responsible for regulating competition in markets in India, vide an Order , in Belaire Owner’s Association vs. DLF Limited and HUDA (the “Order”) has imposed a penalty amounting to Rs 630 crores (INR 6.3 Billion) on DLF Ltd. (“DLF”) for abuse of dominant position for imposing unfair conditions in the agreements entered into by the company with flat buyers and directed DLF to ‘cease and desist’ from formulating and imposing such unfair conditions in its agreements with buyers in Gurgaon and to suitably modify such unfair conditions within three months of the date of receipt of this order. The huge penalty imposed on DLF is calculated at the rate of 7% of its average group turnover for the last three preceding financial years and is the heaviest ever imposed for any competition law violation in India so far. In the said order, CCI has also advised the Centre as well as State Governments to come out with a regulatory framework for the realty sector. In a separate report published in the Media, CCI has also hinted at the possibility of initiating suo moto (of its own motion) investigations into the flat buyers’ agreements of other builders. In another event, the Maharashtra State Consumer Disputes Redressal Commission on August 19, 2011 has ordered a Pune-based builder to pay a flat buyer Rs 45 Lakh for a flat he purchased for Rs 6.5 Lakh in 2001 but never received possession. The Commission has also reprimanded the builder for creating a third party interest by selling the same flat to another buyer.

In the case before the CCI, it was alleged by the complainant Belaire Owner’s Association, Gurgaon that DLF has imposed “arbitrary, unfair and unreasonable conditions” on the apartment – allottees that amounted to abuse of its dominant position, in the so called relevant market for services of developer / builder in respect of ‘high-end ‘residential accommodation’ in Gurgaon. So what are these clauses that CCI found unfair and hence “abusive” in DLF’s Belaire project agreement in the Order? There are as many as sixteen of them.

  1. Unilateral changes in agreement and suppression of terms by the Builder without any right to the allottees.
  1. Builders’ right to change the layout plan without consent of allottees.
  1. Discretion of the Builder to change inter se areas for different uses like residential, commercial etc. without even informing allottees.
  1. Preferential location charges paid up front, but when the allottee does not get the location asked for, he only gets a refund/adjustment amount at the time of last instalment, and that too without interest.
  1. Unilateral right of the Builder to increase/decrease super area at its sole discretion without consulting allottees, which nevertheless are bound to pay additional amounts or accept a reduction in the area.
  1. The proportion of land on which apartment is situated on which allottees have ownership rights shall be decided by the Builder.
  1. The Builder continues to enjoy full rights on the community buildings, sites, recreational and sporting activities, including maintenance, with the allottee having no rights in this regard.
  1. The Builder has sole discretion to link one project to other projects, with consequent impact on ambience and quality of living, with buyers having no right to object.
  1. Allottees are liable to pay external development charges, without these being disclosed in advance and even if these are enhanced.
  2. Total discretion of the Builder regarding arrangement for power supply and rates levied for the same.
  1. Arbitrary forfeiture of amounts paid by the allottees in many situations..
  1. Allottees have no exit option except when the Builder fails to deliver possession within the agreed time, but even in this case they get refund without interest, and that too only after the apartment is sold.
  1. The exit clause gives the Builder full discretion, including the right to abandon the project, without any penalty.
  1. The Builder has the sole authority to make additions/alterations in the buildings, with all the benefits flowing to the Builder, with the allottees having no say in this regard.
  1. Third party rights can be created without allottee’s consent, to the detriment of allottee’s interests.
  1. Punitive penalties can be imposed by the Builder for default by allottees, but insignificant penalty for the Builder’s default.

According to the Order of CCI, DLF violated Section 4(2)(a)(i) of the Act , dealing with abuse of dominant position by, inter alia, imposing , directly or indirectly , “unfair or discriminatory conditions or prices with respect to the purchase or sale of goods or services.”

[The Order of CCI has since been challenged by DLF Ltd. before the Competition Appellate Tribunal (“COMPAT”), headed by a retired Judge of the Supreme Court of India. The appeal was admitted by the Tribunal on 9th November, 2011 and the direction regarding payment of penalty of Rs. 630 Crores has been stayed, subject to DLF Ltd. furnishing an undertaking to pay interest @ 9% per annum on the amount of penalty to be decided, if any, after the appeal by the COMPAT.]

ANALYSIS

The Order of CCI in the DLF case, imposing the highest known penalty for a competition law violation in India, is likely to have vast ramifications in a real estate industry in India that is already reeling under the effects of high inflation and increased home loan rates, which has further dampened demand from homebuyers. There are many projects where delays are beyond the control of developers and if regulators start imposing stringent measures, the sector will be negatively impacted. The DLF case might become a precedent for other such litigations to follow, which would pose a serious problematic situation for the industry.

The decision assumes significance for several reasons , first, for the first time in India competition law has covered the “exploitative” nature of “abuse of dominant position” as the jurisprudence on abuse of dominant position mainly centred around the “exclusionary” abuses like predatory pricing or refusal to deal, which have an effect of excluding the competitors, second, the decision has a overlap with the well defined concepts of “unfair trade practice”, which hitherto have been deemed to be reserved  for consumer disputes ,third, the order has also exposed a largely prevalent industry practice of builders appropriating the funds raised from buyers for other projects Finally, the decision shows that the CCI continues to rely on international case law and jurisprudence , particularly cases in the US and EU , but there remains some ambiguity on the methodology used by the CCI for the computation of the penalty, in the absence of well defined guidelines for imposition of such heavy monetary fines, unlike other jurisdictions. Given the highly complex definition of what constitutes a “dominant position” under section 4 of the Act, which is not dependent only on market share, the Builder fraternity will need to be careful while drafting “Flat Buyer Agreements” to ensure that such violations are not repeated so as to invite heavy Penalty.

COMPETITION COMPLIANCE – A WAY FORWARD

Notwithstanding the outcome of the appeal in the DLF case, the real estate industry in India should understand that the purpose of competition law is to preserve free and fair competition in the markets, which is in the interests of all companies operating in the industry and their clients as well. Competition is necessary to achieve economic efficiency and is one of the essential conditions of a free market economy. Competition encourages enterprises to be more efficient which reduces the cost of products and services. This, in turn, leads to reduction in prices and improves quality, thereby increasing the demand for the products and services. These universal principles apply equally to the real estate sector. The real estate industry must, therefore, agree to   voluntarily commit itself to ensuring the highest standards of competition law compliance within the sector by adhering to the principles of fair competition in all of its business practices and to ensure that construction companies do not engage in conduct which is anti-competitive. Flat buyer agreements, therefore, also need to be redrafted in sync with competition law in general and in accordance with the provisions of the Act, in particular. For example, in the state of Maharashtra, in India, all such agreements must conform to the model format prescribed under the Maharashtra Ownership Flats Act 1963 (“MOFA”). Clauses 1 to 5, 8 to 13, and 22 of this model agreement are statutory and must mandatorily form part of the agreement. Other clauses can and should be negotiated between the builder and the flat buyer if there is to be any semblance of transparency in this area. In the DLF case, CCI defined the relevant market as ‘the high-end residential market in Gurgaon’. Similar “relevant markets” may exist in other parts of the Delhi NCR such as in Greater NOIDA as well as in other metropolitan cities in India and in case any association of the allottees of similar apartments were to file complaints with the CCI, it shall have to intervene again on the basis of the precedent of the DLF case and the builders may have to face similar penalties. The answer lies in introducing a voluntary in-house check of the clauses in the agreements entered or to be entered with the prospective clients/buyers to make the agreements competition compliant.

Why Competition Compliance?

Apart from causing a loss of reputation and adverse effect on the share valuation more so in the case of a public quoted company, competition law litigation also happens to be extremely expensive. The penalties and fines prescribed under the Act are very high and the Act also incorporates provisions that , besides the liability on the company, the CCI may also fix   personal liabilities on senior management in case of even unintended violations by the employees of the company. More than 110 countries around the World, including neighbors like Pakistan and China, have already implemented a competition law regime; Competition law compliance should, therefore, be at the heart of every business’s risk management strategy.

Competition Compliance Program

It is therefore advisable that all companies should have a Competition Compliance Programme (“CCP”) in place, which is a multi -pronged tool to ensure compliance with Competition law and rapid detection in case of any unintended violation. It works on the principle that ‘prevention is better than cure’. It is developed keeping in mind the specific requirements of an enterprise and has the following fundamental targets:

  • Educating employees about the basic concepts of competition law and about the types of conduct that violate it.
  • Creating a system, that will detect any anti-competitive conduct.
  • Training the employees on best practices for dealing with investigations by CCI, in case of an unintended violation.

An effective compliance programme would include imparting awareness and training to employees who may engage themselves or are exposed to anticompetitive conducts. The programme should provide for identifying possible violations so as to take pro-active, corrective and remedial steps. Effective compliance not only reduces the risk of contraventions, but also facilitates timely detection and can be useful in mitigating penalties by suggesting disclosure of information at the first opportunity. To make the programme truly effective, continuous review is essential. It also requires continuous support from senior management, which should be visible and reinforced from time to time.

CCP as a mitigating factor for deciding penalties

The presence of a well-defined CCP in enterprises has been accepted as a mitigating factor in determining  penalty amounts by competition authorities in developed economies and CCI can be no exception. In many jurisdictions, even if a breach occurs, the degree to which an enterprise can demonstrate a genuine commitment to compliance with competition laws may be an important factor for consideration by the competition regulator while determining the severity of any penalties to be imposed. For example, in 2009, the U.K. Competition Authority, Office of Fair Trading (OFT) imposed a hefty fine of GBP 130 Million on 103 Construction Companies. Twenty five companies appealed against the fines imposed. In March 2011, the Competition Appellate Tribunal of U.K., reduced fines by ninety per cent in most cases as these companies were able to demonstrate that they had an in house CCP. Parties received a discount in the penalties imposed proportionate to the percentage of their competition compliance program as a separate mitigating factor. However, “off the shelf” compliance programmes may not be useful and may do more harm than good. Compliance programmes must, therefore, be designed under expert advice and supervision and should be included in the company policy on a permanent basis.

Role of Builder’s Associations-International Practices

Builders associations can play a vital role in sensitizing their member builders on the benefits of competition compliance. In many other countries, responsible builders associations prescribe standard pro-forma contracts that are less skewed. In Australia, for example, there are three major associations of builders, each of which provides standard pro-forma contracts to the potential buyers for various kinds of contracts ranging from purchase of a new property to existing property to renovation of bathrooms and kitchen in order to reasonably protect the interests of homebuyers. Recently, National Federation of Builders (NFB), a prominent builders’ association in UK launched an industry-wide code of conduct. The code demands that UK construction companies meet the highest standards of competition law compliance and will form a mandatory part of the NFB’s code of conduct for members. The trade and its Associations (especially when its members are rivals in market) need to take note of the “Do’s and Don’ts”. Similarly, under the Act, Trade Associations are not immune from the consequences of an antitrust infringement. As a matter of fact, inquiries are already going on against trade associations in other sectors such as tyres, cement, sugar etc. before CCI, for allegedly facilitating cartel like behavior amongst their members. Therefore, Apex Trade Associations of the real-estate sector e.g. the Confederation of Real Estate Developers’ Associations of India (CREDAI), as the widely recognized apex body for private Real Estate developers in India, which has played an important role in development of Indian real-estate industry, should also develop and adopt a competition friendly ‘Code of Conduct’ for the betterment of its members.

MM Sharma is the former registrar of the Competition Commission of India. He heads the Competition Law & Policy Practice of Vaish Associates, Advocates, a corporate law firm that has offices in New Delhi, Mumbai, and Bangalore, India. Mr. Sharma may be contacted at mmsharma@vaishlaw.com.

 

 

By MM Sharma

Case Notes – Indian Supreme Court Condemns The Practice Of Transferring Property Through The Grant Of A General Power Of Attorney

By Aseem Chawla and Surabhi Singhi

On October 11, 2011, the Supreme Court of India condemned the increasingly frequent malpractice of transferring immovable properties without a registered deed of conveyance in the case of Suraj Lamp and Industries Pvt. Ltd. v State of Haryana [2011 (11) SCALE 438]. The court, assisted by amicus curiae Mr. Gopal Subramanian, Solicitor General, investigated the rampant practice of transferring property through a general power of attorney]. The States of Delhi, Haryana, Punjab and Uttar Pradesh were also notified to submit their views in the form of affidavits.

According to the court, the modus operandi behind these transactions is the avoidance of stamp duty payments, registration charges, income tax (capital gains on transfers) as well as unaccounted “black” money or illegal money. Therefore, property vendors with imperfect title and purchasers aiming to invest “black money” are the chief propagators of such transactions.

In order to address this issue, the Court clarified that Section 17 of the Registration Act, 1908 has made the transfer of property legitimate only through a registered deed and Section 49 prohibits the use of such documents as evidence to prove title. Thus, the documents in the nature of power of attorney cannot convey any title or create any interest in an immovable property. [The court also stated the ill effects of such transfers by stating that bona fide purchasers may in future be threatened by the ever growing land mafia. Further, the Court emphasized that the vendors are tempted to resell the property due to lack of evidence with the purchaser and owing to an imperfect title and an inevitable consequence is the criminalization of real estate transactions.

The Court highlighted the importance and benefits of transfer of immovable property through a registered instrument such as safety and security of transactions due to publicity of documents and creation of a permanent record in the event of loss or destruction of documents, prevention of fraud and forgeries and easier verification of a marketable title. Further, the court stated that the states may take necessary steps such as reduction of stamp duty, which would encourage the public to get their sale deeds registered. The Court further noted that this may lead to a loss of revenue, yet it would be significant in reducing generation of black money and undervaluation of property.

The Court pointed out, however, that the validity of a power of attorney or a sale agreement in a genuine transaction is not disputed since a person may, for the better management of his property, execute such documents.

Therefore, in the absence of a registered deed, such transactions in the nature of power of attorney are not completed transfers or do not create any interest / title in the property (except to the extent mentioned in Section 53A of the Transfer of Property Act, 1882) and would only protect the transferee against the transferor.

Mr. Aseem Chawla is a Partner, and Ms. Surabhi Singhi is an Associate, Amarchand & Mangaldas & Suresh A. Shroff & Co., based out of Delhi, India. Mr. Chawla leads the tax practice group of the firm and can be contacted at aseem.chawla@amarchand.com. Ms. Singhi is an Associate with the tax practice group of the firm and can be contacted at surabhi.singhi@amarchand.com.