[The following post is contributed by Vaibhav Choukse, Senior Associate –
Competition Law and Policy, Vaish Associates Advocates. Views are personal.]
Competition Law and Policy, Vaish Associates Advocates. Views are personal.]
Introduction
On May 19, 2014, in a
landmark order,
the Competition Appellate Tribunal (“COMPAT”)
upheld the order
of the Competition Commission of India (“CCI”)
imposing a record penalty of INR 630 crores (USD 140 million) on DLF Limited (“DLF”) for abusing its dominant position
(“COMPAT Order”). Based on a media
report, the allottees are planning to move the COMPAT to file compensation
claims under Section 53-N of the Competition Act, 2002 (the “Act”).
landmark order,
the Competition Appellate Tribunal (“COMPAT”)
upheld the order
of the Competition Commission of India (“CCI”)
imposing a record penalty of INR 630 crores (USD 140 million) on DLF Limited (“DLF”) for abusing its dominant position
(“COMPAT Order”). Based on a media
report, the allottees are planning to move the COMPAT to file compensation
claims under Section 53-N of the Competition Act, 2002 (the “Act”).
The COMPAT observed that
the “Competition Law must be read in the
light of the philosophy of the Constitution of India, which has concern for the
consumers and the dominant player in the market has a special duty to be within
the four corners of law.”
the “Competition Law must be read in the
light of the philosophy of the Constitution of India, which has concern for the
consumers and the dominant player in the market has a special duty to be within
the four corners of law.”
Background
On the basis of information filed by Belaire
Owners’ Association, an association formed by the apartment allottees of a DLF building,
the CCI found DLF guilty for abusing its dominant position in the market for
services of developer/builder in respect of high-end residential accommodation
in Gurgaon in contravention of Section 4 of the Act. The CCI imposed a penalty
of INR 630 crores (USD 140 million), at the rate of 7% of the average turnover
of DLF and issued a cease and desist order against DLF from imposing unfair
conditions in the Apartment Buyer’s Agreement (“ABA”) executed between DLF and allottees. CCI also directed DLF to
suitably modify the terms of the ABA.
Owners’ Association, an association formed by the apartment allottees of a DLF building,
the CCI found DLF guilty for abusing its dominant position in the market for
services of developer/builder in respect of high-end residential accommodation
in Gurgaon in contravention of Section 4 of the Act. The CCI imposed a penalty
of INR 630 crores (USD 140 million), at the rate of 7% of the average turnover
of DLF and issued a cease and desist order against DLF from imposing unfair
conditions in the Apartment Buyer’s Agreement (“ABA”) executed between DLF and allottees. CCI also directed DLF to
suitably modify the terms of the ABA.
Following the order of CCI, DLF moved to COMPAT
challenging the findings of the CCI. During the pendency of appeal, COMPAT
directed the CCI to furnish a suitably modified ABA post consideration of the
draft modified terms submitted by DLF and Association. Following the directions
of COMPAT, the CCI suitably modified the abusive clauses of ABA.
challenging the findings of the CCI. During the pendency of appeal, COMPAT
directed the CCI to furnish a suitably modified ABA post consideration of the
draft modified terms submitted by DLF and Association. Following the directions
of COMPAT, the CCI suitably modified the abusive clauses of ABA.
Findings
of the COMPAT
of the COMPAT
COMPAT has, inter
alia, made the following observations:
alia, made the following observations:
Issue I: Jurisdiction of the CCI
The CCI was right in assuming
the jurisdiction on the basis of the definition of the term ‘service’ in Section 2 (u). The term ‘service’ as contemplated in Section 4
has a direct relation to Section 2 (u), which provides for the ‘service’ of the nature which is being
provided by DLF i.e. real estate & construction.
the jurisdiction on the basis of the definition of the term ‘service’ in Section 2 (u). The term ‘service’ as contemplated in Section 4
has a direct relation to Section 2 (u), which provides for the ‘service’ of the nature which is being
provided by DLF i.e. real estate & construction.
Issue II:
Retrospective Operation of the Act & Applicability of Kingfisher Judgment
Retrospective Operation of the Act & Applicability of Kingfisher Judgment
Retrospective Operation of the Act: Section 4 is
not retrospective in operation. Section 4 (2) (a) will only attract if there is
an imposition of unfair or discriminatory condition or price. In 2006-07,
when the Section 4 was not in force, the allottees entered into ABA voluntary
without any element of coercion and hence, there was no imposition of
any condition in the ABA by DLF.
not retrospective in operation. Section 4 (2) (a) will only attract if there is
an imposition of unfair or discriminatory condition or price. In 2006-07,
when the Section 4 was not in force, the allottees entered into ABA voluntary
without any element of coercion and hence, there was no imposition of
any condition in the ABA by DLF.
Applicability of the Kingfisher
Judgment: COMPAT rejected CCI’s
approach in examining the clauses of ABA and observed that all acts done
in pursuance of the agreement before the Act came into force would be valid and
cannot be questioned. But if the parties want to perform certain acts in
pursuance of the agreement, which are now prohibited by the Act, then those
acts would be illegal. No provision in the Act permits the re-writing of the
agreements. If DLF acted in pursuance of ABA, which was contrary to the Act,
then CCI could have taken an exception to those ‘acts’, but not to the ‘clauses’
of ABA, which were valid. Also, the
continuation of the agreement after May 20, 2009 by itself would not attract
the mischief of the Act, unless there was some act in pursuance of those
clauses, which were not contemplated in the agreement and would, therefore,
amount to an imposition of condition.
Judgment: COMPAT rejected CCI’s
approach in examining the clauses of ABA and observed that all acts done
in pursuance of the agreement before the Act came into force would be valid and
cannot be questioned. But if the parties want to perform certain acts in
pursuance of the agreement, which are now prohibited by the Act, then those
acts would be illegal. No provision in the Act permits the re-writing of the
agreements. If DLF acted in pursuance of ABA, which was contrary to the Act,
then CCI could have taken an exception to those ‘acts’, but not to the ‘clauses’
of ABA, which were valid. Also, the
continuation of the agreement after May 20, 2009 by itself would not attract
the mischief of the Act, unless there was some act in pursuance of those
clauses, which were not contemplated in the agreement and would, therefore,
amount to an imposition of condition.
Moreover, the CCI cannot
direct modification of the ABA. The power to modify agreements lies under
Section 27(d). Only the agreement under Section 3 (anti-competitive agreements) can be ordered to be modified under
Section 27(d), since, Section 27 speaks about ‘action’ when it speaks about contravention of Section 4.
direct modification of the ABA. The power to modify agreements lies under
Section 27(d). Only the agreement under Section 3 (anti-competitive agreements) can be ordered to be modified under
Section 27(d), since, Section 27 speaks about ‘action’ when it speaks about contravention of Section 4.
Issue III:
Relevant Market and Dominant Position of DLF
Relevant Market and Dominant Position of DLF
Relevant
Market: The CCI market definition was correct i.e. services of developer / builder in respect
of high-end residential accommodation in Gurgaon. On the issue of
Geographic Market, it was observed that, the residential housing is not
connected with investment. Ordinarily, for
a common man, basic need is food, other amenities of life and a property to
reside, as that creates a sense of security in his mind. If that is so, it will
be futile to examine the question only from the angle of investors.
Market: The CCI market definition was correct i.e. services of developer / builder in respect
of high-end residential accommodation in Gurgaon. On the issue of
Geographic Market, it was observed that, the residential housing is not
connected with investment. Ordinarily, for
a common man, basic need is food, other amenities of life and a property to
reside, as that creates a sense of security in his mind. If that is so, it will
be futile to examine the question only from the angle of investors.
Dominance:
The
CCI’s reliance on the CMIE (Centre for Monitoring Indian Economy Private
Limited) data over other data/ reports available while assessing market share
(55%) of DLF was correct. DLF’s market share was more than double of its next
biggest competitor, Unitech. DLF is a market leader and enjoy a unique position
as it lay down the rules of the game, which power/strength it exercises in its
favor to the potential detriment of its competitors and consumers’ interests.
The
CCI’s reliance on the CMIE (Centre for Monitoring Indian Economy Private
Limited) data over other data/ reports available while assessing market share
(55%) of DLF was correct. DLF’s market share was more than double of its next
biggest competitor, Unitech. DLF is a market leader and enjoy a unique position
as it lay down the rules of the game, which power/strength it exercises in its
favor to the potential detriment of its competitors and consumers’ interests.
Issue
IV:
Abuse of Dominant Position by DLF
IV:
Abuse of Dominant Position by DLF
COMPAT did not consider
any ABAs executed after May 20, 2009 and restricted the inquiry only to the
ABAs executed in 2006-2007 against which the information was filed with the
CCI. COMPAT only focused on the actions
taken by DLF pursuant to ABA, post May 20, 2009.
any ABAs executed after May 20, 2009 and restricted the inquiry only to the
ABAs executed in 2006-2007 against which the information was filed with the
CCI. COMPAT only focused on the actions
taken by DLF pursuant to ABA, post May 20, 2009.
ABA authorizes DLF to
increase the number of floors by constructing additional floors, but this imposition
of additional construction without intimation & consent from allottees and
without prior approval from the Government Authority amounts to abuse of
dominant position by DLF.
increase the number of floors by constructing additional floors, but this imposition
of additional construction without intimation & consent from allottees and
without prior approval from the Government Authority amounts to abuse of
dominant position by DLF.
The DLF offer to the
original allottees regarding moving to a
higher floor is discriminatory vis-à-vis other allottees. It is against
Article 14 of the Constitution of India and Section 4(2) (a) (i) of the Act.
original allottees regarding moving to a
higher floor is discriminatory vis-à-vis other allottees. It is against
Article 14 of the Constitution of India and Section 4(2) (a) (i) of the Act.
Unilateral increase in
the super area and holding charges by DLF was in breach of
the ABA and amounted to abuse as DLF was well aware that allottees had no other
choice, but to accept the same. The only option left with the allottees was to
exit the scheme, which was unimaginably costly.
the super area and holding charges by DLF was in breach of
the ABA and amounted to abuse as DLF was well aware that allottees had no other
choice, but to accept the same. The only option left with the allottees was to
exit the scheme, which was unimaginably costly.
Issue
V: Quantum of Penalty and Role of Government Departments
V: Quantum of Penalty and Role of Government Departments
CCI has given sufficient
reasons for imposing the penalty of INR 630 crores on DLF. Further, COMPAT
severely criticized DTCP (Town & Country Planning Department, Haryana)
for remaining blissfully ignorant
about the illegal conduct and for not taking any action against DLF.
reasons for imposing the penalty of INR 630 crores on DLF. Further, COMPAT
severely criticized DTCP (Town & Country Planning Department, Haryana)
for remaining blissfully ignorant
about the illegal conduct and for not taking any action against DLF.
Analysis
The COMPAT Order sends
a strong signal to both the real estate industry and the state-level government
authorities, and may even expedite the process of establishing a real-estate
regulator by the new government.
a strong signal to both the real estate industry and the state-level government
authorities, and may even expedite the process of establishing a real-estate
regulator by the new government.
The COMPAT Order
assumes significance because, firstly, it is one of the initial cases of
the CCI and COMPAT which dealt with ‘exploitative’ nature of abuse
(exploiting customers) as the jurisprudence on abuse of dominant position
mainly centered on the ‘exclusionary’ abuses like price predation or
refusal to deal etc., resulting in the exclusion of a competitor from the
market. Secondly, the COMPAT recognizes the principle of ‘special
responsibility of a dominant enterprise’. This principle had been laid down by
European Court of Justice in the Michelin
Case in 1983. It means that a firm in a dominant
position has a special responsibility not to allow its conduct to impair
undistorted competition on the market. Thirdly, COMPAT confirmed the
approach of the CCI on penalty, unlike the cases in the past where COMPAT has substantially
reduced the penalty imposed by the CCI.
assumes significance because, firstly, it is one of the initial cases of
the CCI and COMPAT which dealt with ‘exploitative’ nature of abuse
(exploiting customers) as the jurisprudence on abuse of dominant position
mainly centered on the ‘exclusionary’ abuses like price predation or
refusal to deal etc., resulting in the exclusion of a competitor from the
market. Secondly, the COMPAT recognizes the principle of ‘special
responsibility of a dominant enterprise’. This principle had been laid down by
European Court of Justice in the Michelin
Case in 1983. It means that a firm in a dominant
position has a special responsibility not to allow its conduct to impair
undistorted competition on the market. Thirdly, COMPAT confirmed the
approach of the CCI on penalty, unlike the cases in the past where COMPAT has substantially
reduced the penalty imposed by the CCI.
At present, the CCI is
investigating
more than 70 real-estate companies for alleged cartelization. In the wake of the COMPAT
Order, the real estate industry must 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. In this regard, Apex Builders Associations like CREDAI 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. For example, in
Australia, 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 United Kingdom 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. It is time that real-estate developers
fastened their best practices to responsible compliance with the Competition
Act.
investigating
more than 70 real-estate companies for alleged cartelization. In the wake of the COMPAT
Order, the real estate industry must 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. In this regard, Apex Builders Associations like CREDAI 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. For example, in
Australia, 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 United Kingdom 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. It is time that real-estate developers
fastened their best practices to responsible compliance with the Competition
Act.
– Vaibhav Choukse