ANTI-CARTEL

ENFORCEMENT
TEMPLATE

CARTELS WORKING GROUP
Subgroup 2: Enforcement Techniques

India
date of completion: 30/10/2013

2009.in/ and indication of the English languages in which these materials are available] C. 2002. number.cci. 2009. This template should be a starting point only. 1. Law(s) covering cartels: The Competition Act. Interpretative guideline(s) (if any): [name and reference No guidelines have been issued so far by the Commission. (homepage address) http://www. At the same time the template supplies information for businesses participating in cartel activities about the rules applicable to them. availability (homepage address) and indication of the languages in which these materials are . Implementing The Competition Commission of India (Lesser Penalty) regulation(s) (if any): Regulations.cci.gov. moreover. availability Regulations. Information on the law relating to cartels A.gov.in/ address) and indication English of the languages in which these materials are available] B. Reading the template is not a substitute for consulting the referenced statutes and regulations. it enables businesses which suffer from cartel activity to get information about the possibilities of lodging a complaint in one or more jurisdictions. [availability (homepage http://www. [name and reference The Competition Commission of India (General) number. 2 ICN ANTI-CARTEL ENFORCEMENT TEMPLATE IMPORTANT NOTES: This template is intended to provide information for the ICN member competition agencies about each other’s legislation concerning hardcore cartels.

bid rigging or collusive bidding. market sharing. Scope of the prohibition  Efficiency enhancing joint ventures are not treated as illegal. distributor. traders or service providers who. 2002. control or attempt to control the production. In case of section 3(3) alleged violations. C. trade in goods or provision of [Please quote.] higher. 2002 defines cartel as follows: “cartel”? [Please quote. of hardcore cartels: [including any  Export cartels are exempted exceptions. Other relevant materials http://cci. limit. Does your law or case Yes law define the term Section 2(c) of the Competition Act. between very serious Section 27 (b) of the Competition Act.] Under section 3(3) of the Competition Act. market sharing.in/images/media/Advocacy/Cartels2012. please indicate the themselves. indulging conducts of parties are presumed to be having appreciable adverse effect on competition in India. by agreement amongst If not. distribution.] "cartel" includes an association of producers. B. any and defences e. exclusions  The government can exempt any class of enterprise. anticompetitive agreements included cartels indulging in price fixing. sellers.g. .gov. however this legal presumption is rebuttable. seller. Does your legislation or Cartels are prohibited in terms of section 3 of the Competition Act. whichever is egregious types of conduct.pdf (if any): [availability (homepage address) and indication of the languages in which these materials are available] 2. case law distinguish 2002. These types of cartels are generally referred to as “hardcore cartels”. 2002 distinguishes between cartel behaviour cartel and other anticompetitive agreements in terms of imposition of (“hardcore cartels” – penalty by the Competition Commission of India. sale or price of. a penalty of up to three times of its profit for each year differentiation is made of the continuance of such agreement or ten per cent of its turnover and identify the most for each year of the continuance of such agreement.] services.g. for practice or agreement arising out of a treaty and any particular industries or enterprise performing sovereign functions [section 54] 1 In some jurisdictions these types of cartels – and possibly some others – are regarded as particularly serious violations. term you use instead. or. Scope and nature of prohibition on cartels A.: price fixing. 3 available] D. distributors. bid rigging or “[Provided that in case any agreement referred to in Section 3 has production or sales 1 quotas ) and other types been entered into by a cartel. trader or service provider included describe how this in that cartel. Hereinafter this terminology is used. limiting or controlling markets. the Commission may impose upon of “cartels”? [Please each producer. e.

any association of enterprises or association of criminal liability. which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding. between any person and enterprise or practice carried on. email. engaged in identical or similar trade of clarify this. Secretary B. (d) directly or indirectly results in bid rigging or collusive bidding. please persons. supply. or type of goods or services. (c) shares the market or source of production or provision of services by way of allocation of geographical area of market.] goods or provision of services. between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services. telephone and fax The Hindustan Times House including the country code. Investigating institution(s) A. storage. Name of the agency. Kasturba Gandhi Marg. or administrative and decision taken by. supply. investigates into the allegations once CCI forms prima facie please describe the allocation opinion under section 26 (1) of the Act and directs of responsibilities] investigations. acquisition or control of goods or provision of services. markets.gov. shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production. or a combination of these? 3. distribution. hardcore cartel illegal Section 3(3) [Any agreement entered into between enterprises or per se? [If the situation associations of enterprises or persons or associations of persons or differs for civil. 18-20. Is participation in a Participation in a hardcore cartel is not a criminal offence in India hardcore cartel a civil or and can be subjected to fines only as described in 2B above. which – (a) directly or indirectly determines purchase or sale prices. administrative or criminal offence. Competition Commission of India is more than one agency.in/ . technical development.cci.gov. including cartels. which investigates cartels: [if there Director General. investment or provision of services. Contact details of the agency: Competition Commission of India [address. : + 91 – 11 – 23704651 website] Fax : + 91 – 11 – 23704652 Email: secy@cci. 4 sectors.] E. “bid rigging” means any agreement. website address and New Delhi – 110 001 languages available on the Tel. Is participation in a Yes. Explanation – For the purposes of this sub-section.in Website: http://www.] D. or number of customers in the market or any other similar way. Please also describe any other limitations to the ban on hardcore cartels. (b) limits or controls production.

cci. which may assist the 2002.in/ Language: English E.cci. Information point for potential The Hindustan Times House complainants: 18-20. 5 Language: English Secretary Competition Commission of India C.gov.gov. New Delhi – 110 001 Tel. Decision-making institution(s)2 [to be filled in only if this is different from the investigating agency] A.gov. telephone and fax New Delhi – 110 001 including the country Tel.] Competition Commission of India B. Kasturba Gandhi Marg. Kasturba Gandhi Marg.in Website: http://www. email.) . : + 91 – 11 – 23704651 Fax : + 91 – 11 – 23704652 Email: secy@cci. 18-20. etc. website Fax : + 91 – 11 – 23704652 address and languages Email: secy@cci.gov. 4. please describe the allocation of responsibilities. New Delhi – 110 001 Tel.cci. prohibition decision. Contact details of the The Hindustan Times House agency: [address. imposition of fine. please name the authorities and the type of assistance they provide.in available on the website] Website: http://www.in Website: http://www.gov. Name of the agency making decisions in Competition Commission of India (CCI) cartel cases: [if there is more than one agency.gov. : + 91 – 11 – 23704651 code. Contact point where Competition Commission of India complaints can be lodged: The Hindustan Times House 18-20.g. : + 91 – 11 – 23704651 Fax : + 91 – 11 – 23704652 Email: secy@cci. Are there other authorities No such provision has been made in the Competition Act. Kasturba Gandhi Marg. investigating agency? If yes.in/ Language: English Secretary D.in/ Language: English 2 Meaning: institution taking a decision on the merits of the case (e.

in Secretary.gov. writing. Contact point for Secretary questions and Competition Commission of India consultations: The Hindustan Times House 18-20. orders of ‘cease and desist’ and levy fines up to 3 times of profits or ten per cent of turnover for each year of the continuance of cartel. or is standing to a member of a cartel can apply for leniency. cartel cases belong under criminal proceedings? 5. B. it can pass cartel conduct. the investigation arm of CCI. State Governments or statutory authorities officio.gov.cci. If it is convinced of the violation of law. 6 C.] Competition Act. 2002. On the the process leading to basis of this report. Kasturba Gandhi Marg. 2002. by phone. is 19(1)]. : + 91 – 11 – 23704651 Fax : + 91 – 11 – 23704652 Email: secy@cci. leniency [section 19(1)].g. CCI may decide to inquire into the the sanctioning of the allegations. ex Government. Describe the role of the of the Act or any rules or regulation made thereunder and investigating agency in submits an investigation report to the Commission. etc.in Website: http://www.gov. application. Legal requirements for Any person. : + 91 – 11 – 23704651 address). consumer or consumer association or trade lodging a complaint association can make a complaint (information filing) [section against a cartel: [e. Are complaints required to be made in a specific Communication may be made by any means to: form (e. form. notification. . New Delhi – 110 001 Tel. please. Kasturba Gandhi Marg. Only required.in/ Language: English DG office.in C. on a form. Handling complaints and initiation of proceedings A. whichever is higher.g.] Fax : + 91 – 11 – 23704652 Email: secy@cci. a state Government or a legitimate interest statutory authority can make a reference [section19 (1)]. assists the Commission in conducting enquiry into any contravention of the provisions D. indicate its New Delhi – 110 001 location (website Tel. What is the role of the Cartelization is not a criminal offence under the Competition investigating agency if Act. Leniency application can be made under section 46 of the etc. E.)? Competition Commission of India [If there is a requirement The Hindustan Times House to complete a specific 18-20. Basis for initiating Investigation can be initiated on the basis of complaint or suo investigations in cartel moto (ex officio) or on a reference made by the Central cases: [complaint. The Central Government.

What is the official Official name of leniency is lesser penalty.] E. Is there a time limit Yes.in/images/media/Advocacy/CompetitionAct2012. it can dismiss the complaint that it receives or does it (information) or reference by a written order. for taking the decision on whether to investigate or reject it? 6. Leniency policy3 A.pdf B. 7 make a complaint limited to certain categories of complainant?] D. . The provisions for name of your leniency lesser penalty are contained in section 46 of Competition Act. 2009 are processed as per receipt of a complaint by timelines prescribed. decision addressed to the complainant explaining its reasons? F. 2002. for the purposes of this template terms like ‘leniency’ ‘amnesty’ and ‘immunity’ are considered as synonyms. policy (if any)? [Please 2002 and The Competition Commission of India (Lesser Penalty) indicate its public Regulations. including imposition of costs. Orders of CCI have discretion in this are subject to judicial review as specified under the respect? [Please Competition Act.] http://cci. otherwise. Benefit of reduction in penalty up to or equal to (i. 2009. if required to adopt a necessary. reduction in the 100% is available to the applicant if he is the first to make a vital sanction / fine). disclosure enabling the Commission to form a prima facie opinion depending on the regarding the existence of a cartel on the basis of evidence case? submitted. is it orders as it deems fit. elaborate.gov. 2009. 3 For the purposes of this template the notion of ‘leniency’ covers both full leniency and a reduction in the sanction or fines. information filed as per the Competition Commission of counted from the date of India (General) Regulations. Does your jurisdiction The quantum of immunity available under leniency provisions in offer full leniency as comparison to penalty prescribed under clause (b) of the section well as partial leniency 27 of the Act. Moreover. Reduction is as per mandates of the Competition Commission of India (Lesser Penalty) Regulations. If the agency intends not CCI can dismiss a complaint (information) and may pass such to pursue a complaint. availability. however the Commission may extend the competition agency time in suitable cases.e. Is the investigating CCI has to form a prime facie opinion that a contravention of agency obliged to take law has occurred before directing the Director General to action on each complaint investigate.

cease the infringement. CCI can impose conditions in its order for leniency: [e. which is vital of availability of full for decision making. enforcing agency having either no knowledge of the cartel or insufficient knowledge of the cartel to initiate an investigation? In this context. decisive the entire facts and circumstances of the case evidence by witnesses or on basis of written documents. Who is eligible for full Determination is subject to the Competition Commission of India leniency [only for the (Lesser Penalty) Regulations.: valuable.g. leniency program (individual / businesses)? F. trader or beneficiary of the service provider who is member of a cartel. • the quality of the information provided by the applicant potential. first one to come forward or for more participants in the cartel]? D. maintain cooperation throughout. distributor. not to be the ringleader. 8 C. 2009. What are the conditions The reduction in monetary penalty will depend upon following of availability of partial situations:- leniency (such as • the stage at which the applicant comes forward with the reduction of sanction / disclosure fine / imprisonment): • the evidence already in possession of the Commission [e. seller.? Must the information be sufficient to lead to an initiation of investigations?] H. decisive evidence. What are the conditions The conditions are making full and true disclosure. etc. provide lower penalty [section 46].] G. Who can be a The beneficiary can be a producer. Obligations for the . Is eligibility for leniency As per the Competition Commission of India (Lesser Penalty) dependent on the Regulations. restitution.g. 2009. is the date (the moment) at which participants in the cartel come forward with information (before or after the opening of an investigation) of any relevance for the outcome of leniency applications? E. etc.

This category covers situations where a leniency applicant. ongoing. full cooperation with the investigating agency during the proceedings. In the leniency application absence of any explicit condition mentioned in law. 2002. etc. “amnesty plus” or “immunity plus”. to grant leniency? Is 2009. it can be has been accepted: presumed that obligation to fully cooperate can be imposed. What is the legal basis The legal basis is in section 46 of Competition Act. offers to reveal . Are there formal The applicant can make application as per the contents specified requirements to make a in the Schedule either orally or through e-mail or fax to the leniency application? designated authority.] J. mere acknowledgement shall not entitle the is the applicant given applicant for grant of lesser penalty.g. Does the system No provide for any extra 4 credit for disclosing 4 Also known as: “leniency plus”.g. N. Are there distinct procedural steps within No the leniency program? [e. [e. At which time during and the designated authority shall convey the same to the the application process applicant but. leniency granted on the basis of an agreement or is it laid down in a (formal) decision? Who within the agency decides about leniency applications? M. and how is shall be the date and time as recorded by the designated this done? authority. please describe it. in order to get as lenient treatment as possible in a particular case. [e. 9 beneficiary after the Conditions can be imposed on the beneficiary by CCI.g. etc. Does your legislation No have a marker system? If yes. must applications take a particular form or include particular information/data. L.: provisional guarantee of leniency – PGL – and further steps leading to a final leniency agreement / decision)?] The Commission shall mark the priority status of the applicant K. certainty with respect to its eligibility for The date and time of receipt of the application by the Commission leniency. and The for the power to agree Competition Commission of India (Lesser Penalty) Regulations. must they be in writing or can they be made orally.] I.

leniency application Competition Commission of India can be lodged The Hindustan Times House [telephone and fax 18-20. that is the possibility of the agency approaching potential leniency applicants? information about participation in another cartel distinct from the one which is the subject of its first leniency application. Such an arrangement of maintaining confidentiality would encourage submission of vital information with the Commission. describe the circumstances where revocation would occur. for “affirmative leniency”. shall be treated as confidential and it shall not be disclosed please elaborate. : + 91 – 11 – 23704651 contacts (if any)]: Fax : + 91 – 11 – 23704652 Email: secy@cci. a hardcore cartel in another market] O.g. Does the policy Lesser penalty imposed under the leniency provision can be address the possibility revoked if the beneficiary has not complied with the conditions on of leniency being which it was imposed. 2009. or  when there has been a public disclosure by the applicant. it has been specifically mentioned that the the beneficiary identity of the applicant as well as information obtained from its confidential? If yes. Can an appeal be made against a decision to revoke leniency? S. 10 additional violations? [e. or the disclosure is not vital. Does your policy allow There is no bar in law. appeal lies to the Competition Appellate Tribunal. Is there a possibility of Yes. plus out of hours Tel.in R. or  when the applicant has agreed to such disclosure in writing. P. including the country New Delhi – 110 001 code. Contact point where a Secretary. appealing an agency’s decision rejecting a leniency application? Q. or the beneficiary has given false evidence revoked? If yes. . Is the agency required Under the Competition Commission of India (Lesser Penalty) to keep the identity of Regulations.gov. except under the three situations stated below:-  when the disclosure is required by law. Kasturba Gandhi Marg.

etc.g. under which circumstances (e. Investigative powers of the enforcing institution(s)5 A. automobiles. Briefly describe the investigative measures Both CCI and the DG are vested with powers of civil court in available to the enforcing respect of summoning and enforcing attendance. in the possession of the A complainant or defendant may either appear in person or authorize a chartered accountant or company secretary or cost 5 “Enforcing institutions” may mean either the investigating or the decision-making institution or both. 41(3)]. and indicate whether such measures requires a court warrant. The DG can 6 search any premises after obtaining a court warrant [section searches/raids . under the scope of the authorisation allowing the inspection be seized / used as evidence in another case? If yes. raided or inspected? Does this require authorisation by a court? C. Can private locations. raid or inspection measures. . 8. discovery agency such as requests and production of documents. expert opinion. electronic or computer searches. B. g. 11 7. please briefly describe them. briefcases and persons be searched. May evidence not falling As per section 41 of the Act. such as residences. Have there been significant legal - challenges to your use of investigative measures authorized by the courts? If yes. receiving evidence on affidavits for information. Key rights of defence in cartel cases: [e. and requisitioning public records [section 36(2)]. Procedural rights of businesses / individuals A. is a post-search court warrant needed)? D. Yes after obtaining a court warrant. 6 “Searches/raids” means all types of search.: right All procedures have to comply with principles of natural justice of access to documents prevalent under common law [section 36(1)].

What is the limitation None period (if any) from the date of the termination of the infringement by which the investigation / proceedings must begin or a decision in the merits of the case must be made? B. the case against the defendant.] B. right to respond to that case in writing. right not to self- incriminate. 2009. 12 enforcing authority. There is no distinction made on the basis of how the information): is there a information is received by CCI. right accountant or legal practitioner to present his or its case before to a written statement of the Commission [section 35].] 9. statutory or otherwise (if Appeals against any order of CCI must be ordinarily made to any) to challenge the the Appellate Tribunal within 60 days of the order. right to confront companies or individuals that make allegations against the defendant. What is the deadline. right to legal representation before the enforcing authorities. . Protection awarded to Confidentiality of business secrets is required to be maintained business secrets under specific provision in the Competition Act 2002 [section (competitively sensitive 57]. Orders of commencement or investigation are procedural in nature thus not appellable. any) for the completion of an investigation or to make a decision in the merits? C. etc. right to respond orally. What are the deadlines. Limitation periods and deadlines A. difference depending on whether the information is provided under a compulsory legal order or provided under informal co-operation? [Please indicate the relevant legal provisions. As provided in The Competition Commission of India (General) statutory or otherwise (if Regulations. Please indicate the relevant legal provisions.

in cases of urgency due to the risk of serious and irreparable damage to competition. Please list which types of decisions on the 1) Cease and desist merits of the case can be 2) Monetary Penalty as per section 27 of the Act.: by ordering the immediate termination of the infringement]. [E. etc.] B. ordering to the given case.) Which institution (the investigatory / the decision-making one) is authorised to take such decisions? What are the conditions for taking such a decision? 7 In some jurisdictions. 7 C. made in cartel cases 4) Modification of agreements under the laws listed 5) Payment of costs and compliance with any conditions under Section 1.e. bring the infringement to an end. Such orders can be made if a proceedings in cartel contravention is likely to be continued or is likely to be made cases? (if different during pendency of the proceedings. 13 completion of an investigation or a decision regarding sanctions? 10. [section 33] measures for hardcore cartels please describe 8 both .C.g. Can interim measures The power to grant interim relief vests with the decision-making be ordered during the institution. Types of decisions A. Please list which types ᅳ of decisions on the merits of the case can be made in hardcore cartel cases under the laws listed under Section 1 (if different from those listed under 10/A). 8 Only for agencies which answered “yes” to question 2.g. i. above . the Commission. either the investigator or the decision-making agency may order interim measures prior to taking a decision on the merits of the case [e.: imposed finding of an 6) Pass such other order as the Commission may deem fit in infringement. imposition of fines.

can be proceeded against [section 48]. lack of notice. may entail imprisonment for a period which may extend to three years. 28. Furnishing wrong/incorrect information sanctions / fines: B. Criteria for determining Nothing specific has been provided in law. benefit gained 9 In some jurisdictions non-compliance with procedural obligations (e. manager. . On whom can procedural wrong/incorrect information. or minimum sanctions / fines? 12. duration of the violation. Sanctions for procedural breaches (non-compliance with procedural obligations)9 1. the person in sanctions be imposed? charge of the business can also be fined. businesses. However wilful disobedience to orders under sections 27. 45. obstruction of justice. Are there maximum and / and violations of law. On whom can sanctions The Commission may impose a penalty upon each producer. Grounds for the 36(5) section or 41(2). 48] D. administrative. imposition of procedural 2. and 43A. be imposed? [E. 2002.) can be sanctioned. challenging the validity of documents authorizing investigative measures. combined): Penalty can be imposed on businesses. secretary or other officer with whose consent or connivance the in the case of act took place.g. Failure to comply with directions of CCI or DG under section A. 32.: gravity. On the person or enterprise who does not comply or furnish C. Type and nature of Civil sanctions in cartel cases (civil.g. any director. In case of company. 42A. (imprisonment for In case of contravention by companies. the sanction / fine: [e. Mentioned expressly in the Law [section 42. Criteria for determining the sanction / fine: As per the Competition Act. late provision of requested information. criminal. 33. individuals). Sanctions on the merits of the case A. administrative. Type and nature of the Civil sanction (civil. 14 11.: seller. businesses. false or incomplete provision of information. lack of disclosure. trader or service provider included in that representatives of cartel [section 27(b) Proviso]. etc. omissions E. 43. associations of companies the associations or the individual companies?] B. 44. depends of acts.g. destruction of evidence. criminal. combined): 31. distributor.

Court is likely to entertain appeals on ground of violation of natural justice. Does a challenge to a decision imposing a It will be necessary to apply for suspension. procedural requirements? Appeal can be made. only on questions of law. availability (homepage address) and indication of the languages in which these materials are available] E. what are the criteria? 13. An appellate body called the Competition Appellate for an appeal from a Tribunal was set up in May 2009 to hear and dispose of decision that there has appeals against the orders made by the Commission. Does your law provide Yes. sanction / fine have an automatic suspensory effect on that sanction / fine? If it is necessary to apply for suspension. Possibilities of appeal A. what are the grounds of appeal. or minimum sanctions / fines? D. such The Appellate Tribunal shall be guided by the principles of as questions of law or natural justice and subject to the other provisions of the Act fact or breaches of and of any rules made by the Central Government. B. Final been a violation of a appeal lies to the Supreme Court against the order of the prohibition of cartels? If Competition Appellate Tribunal. 15 from the violation] C. the answer to question 13/A is affirmative] . fact or mixed question of law and fact. Guideline(s) on calculation of fines: None [name and reference number. yes. Are there maximum and / As per section 27 of the Act. Before which court or agency should such a Competition Appellate Tribunal challenge be made? [if The Supreme Court of India.