[The following guest post is contributed by Harsh Loonker, who is a final year student at the Jindal Global Law
School]
School]
The
Competition Appellate Tribunal (“Compat”),
by way of its order dated December 9, 2016, upheld the order by the Competition
Commission of India (“CCI” or the
“Commission”) dated August 25, 2014, with minor modifications to the order
and a substantial reduction in the penalties levied. Acknowledging that the
competition law regime in India and the automotive industry are going through a
transitionary process, the Compat reduced the penalty imposed on the appellants,
who are car manufacturers.
Competition Appellate Tribunal (“Compat”),
by way of its order dated December 9, 2016, upheld the order by the Competition
Commission of India (“CCI” or the
“Commission”) dated August 25, 2014, with minor modifications to the order
and a substantial reduction in the penalties levied. Acknowledging that the
competition law regime in India and the automotive industry are going through a
transitionary process, the Compat reduced the penalty imposed on the appellants,
who are car manufacturers.
The
CCI had penalised a total of 14 car manufacturers with presence in India, with
a blanket 2% penalty on total turnover of their business. This 2% penalty would
include their individual turnover from their car sales as well as their spare
parts and after-market sales. This was so because the car manufacturers or the original
equipment manufacturers (“OEMs”)
were considered to be causing anti-competitive effects in the spare parts and
after sales and service markets through restrictive agreements. The Informant
had filled the information against Honda Siel Cars Ltd., Volkswagen India Pvt.
Ltd. and Fiat India Automobiles Pvt. Ltd, none of which were party to this
appeal. The Commission, in order to expand its investigation, conducted an
inquiry on other OEMs in India and included them in the final order by the Commission.
Three aggrieved OEMs, namely Toyota Kirloskar Motor Pvt. Ltd., Ford India Pvt.
Ltd. and Nissan Motor India Pvt. Ltd. (“Appellants”),
had availed an appeal through statutory appellate process provided in the
Competition Act, 2002 (“Act”), while other OEMs had approached various high
courts under writ jurisdiction.
CCI had penalised a total of 14 car manufacturers with presence in India, with
a blanket 2% penalty on total turnover of their business. This 2% penalty would
include their individual turnover from their car sales as well as their spare
parts and after-market sales. This was so because the car manufacturers or the original
equipment manufacturers (“OEMs”)
were considered to be causing anti-competitive effects in the spare parts and
after sales and service markets through restrictive agreements. The Informant
had filled the information against Honda Siel Cars Ltd., Volkswagen India Pvt.
Ltd. and Fiat India Automobiles Pvt. Ltd, none of which were party to this
appeal. The Commission, in order to expand its investigation, conducted an
inquiry on other OEMs in India and included them in the final order by the Commission.
Three aggrieved OEMs, namely Toyota Kirloskar Motor Pvt. Ltd., Ford India Pvt.
Ltd. and Nissan Motor India Pvt. Ltd. (“Appellants”),
had availed an appeal through statutory appellate process provided in the
Competition Act, 2002 (“Act”), while other OEMs had approached various high
courts under writ jurisdiction.
The
Appellants had preferred the appeal on all findings of the Commission, including
in relation to the incorrect expansion of scope of investigation, incorrect
determination of abuse of dominance through vertical agreements by and between
the individual OEMs and their respective overseas supplier, OEMs and Authorized
dealers. The Compat in its order agreed with the Commission and held that the Commission
did not exceed its authority in expanding the scope of investigation. The
Compat, after a lengthy analysis of the contentions of each side, went on to
agree with all the findings of the Commission. In its order, the Compat
reflected on the jurisprudence of intellectual property rights (IPR) vis-à-vis competition
law and focused on two aspects of the Director General’s investigation on the
treatment of agreements under the guise of protecting IPR. The Compat sought to
examine if the agreements were in fact protecting company IPR and if these
rights as they stood were in fact protected by Indian law.
Appellants had preferred the appeal on all findings of the Commission, including
in relation to the incorrect expansion of scope of investigation, incorrect
determination of abuse of dominance through vertical agreements by and between
the individual OEMs and their respective overseas supplier, OEMs and Authorized
dealers. The Compat in its order agreed with the Commission and held that the Commission
did not exceed its authority in expanding the scope of investigation. The
Compat, after a lengthy analysis of the contentions of each side, went on to
agree with all the findings of the Commission. In its order, the Compat
reflected on the jurisprudence of intellectual property rights (IPR) vis-à-vis competition
law and focused on two aspects of the Director General’s investigation on the
treatment of agreements under the guise of protecting IPR. The Compat sought to
examine if the agreements were in fact protecting company IPR and if these
rights as they stood were in fact protected by Indian law.
While
assessing the impugned penalty imposed, the Compat decided to adopt a lenient
view. The definition of ‘turnover’ was discussed and through references to case
law was found to be the turnover of the products subject to inquiry, and not
the turnover of the entire multi-product enterprise. And following the yardstick of relevant
turnover, the Compat ordered a revised 2% of average annual turnover for the 3
years immediately preceding the inquiry penalty on the spare parts markets of
the OEMs. The Compat directed the Commission to obtain relevant statistics and
verify the amount of penalty. This case would therefore provide clarity on
matter where the CCI has over-extended its reach while ordering penalty.
assessing the impugned penalty imposed, the Compat decided to adopt a lenient
view. The definition of ‘turnover’ was discussed and through references to case
law was found to be the turnover of the products subject to inquiry, and not
the turnover of the entire multi-product enterprise. And following the yardstick of relevant
turnover, the Compat ordered a revised 2% of average annual turnover for the 3
years immediately preceding the inquiry penalty on the spare parts markets of
the OEMs. The Compat directed the Commission to obtain relevant statistics and
verify the amount of penalty. This case would therefore provide clarity on
matter where the CCI has over-extended its reach while ordering penalty.
Borrowing
jurisprudence and practice from mature regulatory jurisdictions, and setting
precedent on the scrutiny of vertical agreements/arrangements, this order by
the Compat has cleared much of the uncertainty in dealing with vertical arrangements.
jurisprudence and practice from mature regulatory jurisdictions, and setting
precedent on the scrutiny of vertical agreements/arrangements, this order by
the Compat has cleared much of the uncertainty in dealing with vertical arrangements.
– Harsh Loonker