Lawyers are of the opinion that the Competition Commission of India (CCI) should take up long-pending anti-trust cases on priority, pursuant to Ravneet Kaur taking charge as the chairperson on May 23.
The chairperson’s office lay vacant for seven months after the previous occupant, Ashok Kumar Gupta, retired in October 2022. Kaur’s appointment also comes at a time when the CCI is defending its orders in various antitrust cases in both the National Company Law Appellate Tribunal (NCLAT) and the Supreme Court.
“Given that there has been a lack of quorum at the CCI for seven months, antitrust matters have come to a standstill. Thus, it will be good if the CCI prioritises adjudication of antitrust cases where the DG investigation is complete, as well as pending complaints in the digital sector,” said Unnati Agarwal, partner at Induslaw.
Clearing pending deals
The CCI broadly performs two functions. First, under the anti-trust function, it penalises enterprises that abuse their position of dominance and levies penalties if they are found to be in violation of the law. Secondly, under its combination filings function, the CCI is empowered to grant or deny permissions to companies looking to merge, or acquire controlling shares or voting rights in a competing enterprise.
In February, the CCI resumed clearing merger and acquisition deals after the government permitted it to do so, considering the adverse effect pending deals had on businesses. Thus, while the commission has been clearing mergers and acquisitions since February, anti-trust cases have been pending for the last seven months.
“For Combination approvals it has been business as usual since February. The Commission is likely to prioritise procedural and administrative matters pertaining to existing enforcement cases, and pass preliminary orders on the large number of complaints/information (anti-trust cases),” notes Dhruv Rajain, partner, competition practice, at Cyril Amarchand Mangaldas.
In April, the lack of a quorum at the CCI led the Delhi High Court to invoke the ‘doctrine of necessity’ (extraordinary actions by an administrative authority) and direct the CCI to investigate Google's alleged violation of the regulator's guidelines and pass an order.
In May, the CCI passed an order saying that it needed to inquire into tech giant Google's new user choice billing policy and check whether the company had complied with its October 2022 order asking the tech major not to restrict app developers from using third-party billing systems.
“Lawyers urge the CCI to allocate its resources effectively and expedite the resolution of pending anti-trust cases. By doing so, the CCI will not only promote market transparency and prevent anti-competitive practices, but also uphold its mandate of fostering a level playing field for businesses and safeguarding consumer interests," said Ankit Rajgarhia, an advocate.
Not only does the CCI have to clear and pass judgments in anti-trust cases, it also has to analyse investigation reports filed by the Director General, who is appointed when the CCI comes to a prima facie view that an enterprise has violated the competition law.
“As its first order, the CCI should fast-track pending cases wherein the reports of the Director General have been submitted. The regulator will have to itself peruse these reports before inviting objections from the concerned stakeholders,” said Aditya Vardhan Sharma, Counsel, SKV Law Offices.
“The further course of action in a case (to close the matter, seek a further inquiry, or penalise anti-competitive conduct) depends on the objections. Submission of objections is a long and drawn out process, and therefore must be catered to without haste.”