How to file complaint before Competition Commission of India? By: Tanvi Sapra

July 10,2019:

The Competition Commission of India (CCI) was established under the Competition Act, 2002 for the administration, implementation and enforcement of the Act, and was duly constituted in March 2009. The following are the objectives of the Commission.

1. To prevent practices having adverse effect on competition.
2. To promote and sustain competition in markets.
3. To protect the interests of consumers and
4. To ensure freedom of trade

Consequent upon a challenge to certain provisions of the Act and the observations of the Hon'ble Supreme Court, the Act was amended by the Competition (Amendment) Act, 2007. The Monopolies and Restrictive Trade Practices Act, 1969 [MRTP Act] repealed and is replaced by the Competition Act, 2002, with effect from 01st September, 2009 [Notification Dated 28th August, 2009].How a case proceeds in Competition Commission

• On filing a case

Any person can file an application or information before the Secretary of Commission. CCI has to judge if there is a prima facie case or not within 15 days. If CCI finds that there is a prima facie case, it has to form its opinion on the case within 60 days. However, in practice, it takes much longer.

• On seeking evidence

At the prima facie stage, the CCI is not required to and generally does not ask for evidence from all parties involved. The CCI has the discretion to call or not call the opposite party for the prima facie hearing.

• On informing the opposite party

Generally, the opposite party is informed of the case only when DG, during the course of its investigation, sends a notice to the party. CCI does not send the prima facie order to the opposite party.

• On sharing DG's report with opposite parties

In case the DG does not find a violation, the DG's report is not shared with the parties. However, in case of violation by the opposite parties, once DG submits its report to the CCI, the Commission shares the report with the parties and objections to the DG's report are invited.

After the objections to the DG's report are filed by the parties, the CCI conducts oral hearings in the matter where the parties are allowed to make oral submissions before the CCI to support their case.

• On time taken by DG to complete the investigation

When a case comes up for investigation, the DG is required to submit a report on his findings within a period of 60 days. However, the DG generally requests for several extensions before the investigation report is actually submitted to the CCI.

The DG generally takes 8-15 months to complete an investigation, depending on the complexity of the investigation and number of parties involved and such extensions are usually necessary for a fair investigation to be undertaken.

• On the process followed in merger cases

In mergers and acquisitions (combination) cases, on receipt of a notification form, the CCI is required to form a prima facie opinion within a period of 30 days. This is Phase I of the review process. If the CCI requires the parties to remove defects in the notification or to provide additional information, it "stops the clock" until the additional information is provided.

This means that it can take much longer than 30 days for the CCI to form such a prima facie opinion. To date, all combinations notified to the CCI have been cleared in Phase I of the review process.

If the CCI forms a prima facie opinion that a combination causes or is likely to cause an adverse effect on competition, a detailed investigation will follow which is called Phase II of investigation.

• On whether CCI is bound by law to give final order within a certain time period

The Competition Act does not prescribe a maximum time limit for an investigation initiated - from filing of the information to the final order, in respect of an anti-competitive agreement or an abuse of dominance.

• Procedure for inquiry on complaints under section 19, Competition Act, 2002 :

1. On receipt of a complaint or a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter.
2. The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission.
3. Where on receipt of a complaint under clause (a) of sub-section (1) of section 19, the Commission is of the opinion that there exists no prima facie case, it shall dismiss the complaint and may pass such orders as it deems fit, including imposition o costs, if necessary.
4. The Commission shall forward a copy of the report referred to in sub-section (2) to the parties concerned or to the Central Government or the State Government or the statutory authority, as the case may be.
5. If the report of the Director General relates on a complaint and such report recommends that there is no contravention of any of the provisions of this Act, the complainant shall be given an opportunity to rebut the findings of the Director General.
6. If, after hearing the complainant, the Commission agrees with the recommendation of the Director General, it shall dismiss the complaint.
7. If, after hearing the complainant, the Commission is of the opinion that further inquiry is called for, it shall direct the complainant to proceed with the complaint.
8. If the report of the Director General relates on a reference made under sub-section (1) and such report recommends that there is no contravention of the provisions of this Act, the Commission shall invite comments of the Central Government or the State Government or the statutory authority, as the case may be, on such report and on receipt of such comments, the Commission shall return the reference if there is no prima facie case or proceed with the reference as a complaint if there is a prima facie case.
9. If the report of the Director General referred to in sub-section (2) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.

FORM I

Registration No: (to be assigned by the Competition Commission of India)

Information required to be filled in by the notifying party(ies)

Part I: Basic information

1. Information about each of the party to the combination:

• Legal name of party(ies) to the combination:
• Registration number (if applicable):
• Registered address / Principal business address:
• City: Country: Pin/Postal/Zip Code:
• Contact details (Telephone no, Mobile no, Fax no., in each case, including Country/City/Area Code):
• E-mail address:
• Website address:
• Jurisdiction of incorporation/formation:
• Role of the party(ies) to the combination:
• Relevant 4 digit National Industrial Classification of the activities undertaken by the parties to the combination:
• Date of pre-filing consultation, if any:
• Name of the person signing on behalf of the party(ies) to the combination (enclose documentary proof of eligibility for signing the notice):

Part II: Proof of payment of fees

Provide details of fee deposited along with mode and the proof of payment.

Part III: Authorization regarding communication

Provide details (in the relevant format as provided in Part I above) of an individual located in India who is authorized to receive communication(s) on behalf of each of the notifying party(ies) regarding the notice and related inquiry/proceedings.

Part IV: Meeting the thresholds

Describe the nature of the combination being notified and how the said notification falls within the purview of section 5 of the Act. Give details of assets and turnover in the format provided below:

Part V: Summary of the combination

A summary of the combination in terms of regulation 13(1A) and regulation 13(1B) of the Combination Regulations must be filed along with the notice.

Part VI: Description of the combination

Describe the combination by providing information regarding the following:

• Name of the parties to the combination.
• Explain the structure of the combination, including the following (with reference to relevant clause under the agreement(s), where applicable):
• Indicate each step of the combination along with timelines for each milestone of the combination.
• Structure, ownership and control, prior to and after the combination, of: (a) the parties to the combination; and (b) for the enterprises, whose structure, ownership and control will be directly or indirectly affected by such combination.
• Value of the transaction, i.e., the purchase price (or the value of all assets involved, as the case may be). Specify whether the consideration is in the form of equity, cash, or other assets and provide details.
• Please explain the purpose (including business objective and/or economic rationale for each of the parties to the combination and how are they intended to be achieved) of the combination.
• Please specify if the proposed combination is subject to filing requirements in jurisdictions other than India? If yes, provide status of such filings.
• Furnish copies of approval of the proposal relating to merger or amalgamation by the board of directors of the enterprise(s) concerned referred to in clause (a) of sub- section (2) of section 6 of the Act and/or agreement /other document executed in relation to the acquisition or acquiring of control referred to in clause (b) of sub-section (2) of section 6 of the Act along with the supporting documents as listed in the Notes to Form I, if applicable.
• In case the agreements/other documents relating to the combination contain a non-compete clause or the parties to the combination have executed/or propose to execute a non-competition agreement in relation to the combination, the following details must be provided:
• Scope, including: (i) the enterprises covered by the non-compete provision; and (ii) period; geographic scope and the products/services covered under the non-compete clause(s).
• Justification for the non-compete provisions covering each of the elements as mentioned above.

Part VII: Details about parties to the combination and sector overview

Furnish details about the parties to the combination along with an overview of the sector as given below:

• For each of the parties to the combination, provide details regarding the following:
• List the registered entities in India and/or the physical presence in India (for example, sales office, factory, liaison office, branch office, etc.).
• Name of the group to which the party to the combination belongs.
• Trading name, business name and/or the brand names used in India.
• Brief overview of activities worldwide.
• Overview of the activities in India.
• Provide separately a list/details of the products (manufactured and/or sold) and/or services of the parties to the combination.
• In reference to 7.2 above, do the parties to the combination produce/provide similar or identical or substitutable products or services either directly or indirectly? If yes, provide details.
• State whether any of the parties to the combination are engaged in any activity relating to the production, supply, distribution, storage, sale and service or trade in products or provision of services which is at different stages or levels of the production chain in which any other party to the combination is involved. If yes, provide details.
• Do any of the parties to combination have direct or indirect shareholding and/or control over another enterprise(s) engaged in (a) production, distribution or trading of similar/identical /substitutable products or provision of similar/identical/substitutable services; and/or (b) any activity relating to the production, supply, distribution, storage, sale and service or trade in products or provision of services which is at different stages or levels of the production chain in which any other party to the combination is involved ? If yes, provide details.
• Provide a brief overview of the sector(s) to which the combination belongs.

Part VIII: Relevant Market(s)

• What, according to the parties to the combination, is the relevant product and geographic market? Provide a detailed explanation regarding the delineation of relevant product and relevant geographic market.
• Whether the parties to combination are engaged in any business activities in the same relevant market? If yes, specify.
• Provide an estimate indicating the relevant source and the basis of estimate of the total size of the market, in terms of value of sales (in rupees) and volume (units), of identical/substitutes/similar products or services produced/distributed/supplied in India.
• Provide details with regard to the sales in value (in rupees) and volume (units) along with an estimate of the market share(s) of each of the parties to the combination for identical/substitutes/similar products or services produced/distributed/supplied in India. In case of a group, same information should be given for all the enterprises of the group.
• Provide name and contact details of the five largest competitors (along with their market shares), customers and suppliers.
• In the event the parties to the combination are engaged in any activity relating to the production, supply, distribution, storage, sale and service or trade in products or provision of services which is at different stages or levels of the production chain in which any other party to the combination is involved, provide details, including inter alia,:
• Market size of the upstream and the downstream market.
• Market share of each of the party(ies) to the combination in the upstream and downstream market.
• Market share of five largest competitors in the upstream and downstream market.
• Existing supply arrangements between the parties to the combination along with value of such transactions during the previous financial year and percentage of such sales/consumption of the respective parties in relation to the total sales/consumption in each of the market(s).

DECLARATION

The notifying party declares and confirms that all information given in this Form and all pages annexed hereto is true, correct and complete to the best of its knowledge and belief, and that all estimates are identified as such and are its best estimates based on the underlying facts.

The notifying party is aware of the provisions of sections 44 and 45 of the Act.

Signed by or on behalf of the notifying party

Signature(s)

Name (in block capitals):

Designation:

Date: ________________

[In case there are more than one notifying parties, each party may use the same format.]

BEFORE COMPETITION COMMISSION OF INDIA NEW DELHI

CASE NO. /REF. NO./SUO MOTO CASE NO …..……. OF 20 ……………

Informant:  ……………………………………………………………………………………………………..

against

Opposite Party: ………………………………………………………………………………………………

APPLICATION FOR GRANT OF CERTIFIED COPIES OF DOCUMENTS/ RECORDS

I, hereby, request for grant of certified copies of the documents/ records in the above case. The relevant details in connection with the inspection are as under:

1. Name & address of the person seeking certified copies
2. Whether Informant or Opposite Party or advocate or authorised representative of the Informant /opposite party, in case represented by advocate / authorised representative, a copy of Vakalatnama / authorisation letter shall be enclosed
3. Details of documents along with the page nos., the copies of which are sought
4. Total no. of pages sought
5. Amount of copying charges to be paid @ `20 per page
6. Details of payment of copying charges

Signature of applicant

Date:

Place:  Allowed/ Not Allowed (reason in brief for not allowing for certified copies)

Secretary/Authorised Officer Competition Commission of India