[Anwesh Patnaik is a second year student at National Law Institute University, Bhopal]
The Competition Commission of India (CCI) in its recent order dated 9th March, 2021 granted interim relief till such time a detailed investigation was conducted. The CCI’s power to grant interim measure is derived from Section 33 of the Competition Act. The CCI has sparingly used the power to grant such interim measures, this seems to be in consonance with the Supreme Court (SC) judgment and the practices of other regulators as well. The increasing digital transformation and interplay of digital entities with market competition necessitates the use of such interim measures in light of prolonged investigation. The European Commission (EC) has taken proactive measures to revitalise the use of such interim measures.
This article aims to analyse the impact of the recent reforms in the antitrust regulation regime on the digital market players. The article begins by elucidating the established approach of the CCI and comparatively analysing it with the European approach. The article then expounds the recent trends in the regulators approach towards such measures and the likely impacts on the market.
A Cautious Indian Approach
The SC in the Steel Authority of India Limited (SAIL) limited the CCI’s power to impose-interim measures on the satisfaction of three conditions. These included the necessity to issue such an order, the likely impact of irreparable damage to the affected party or adverse impact on market and most importantly, the record of satisfaction at a degree that is higher than the prima facie observation under Section 26(1) of the Act. The distinction between Section 26(1) and Section 33 is based on the premise that the order under Section 26(1) is per se an administrative order and not a judicial pronouncement. It initiates the inquiry by the Director General (DG) and the degree of satisfaction therein is merely tentative. However, the order under Section 33 is not merely a tentative observation at a preliminary stage but rather a definitive satisfaction based on the application of mind by the CCI.
Such requirement of high degree of satisfaction has resulted in the imposition of interim measures a rarity. Due to the inherent need for deliberation before imposing such measures, the CCI has in turn avoided such intervention by reserving any behavioural and structural remedies for the final determination. It has made the power to impose such measures an unused arsenal with the CCI. While the Sail verdict still holds traction, it was made prior to the digital transformation of the marketplace and the dominance by tech companies.
The CCI in Re: Federation of Hotels and Restaurants Association of India v. MakeMyTrip India Pvt. Ltd (MakeMyTrip) imposed interim measures considering the peculiarities of the case that satisfied the Sail test. The decision was based on the competition issues arising out of digital market as enunciated by the CCI’s study of e-commerce marketplace. The balance of convenience skewed towards the dominant entity- MakeMyTrip as the exclusion of listing of certain hotel chains in favour of OYO in a market dependent on an online intermediary platform listing would result in irreparable harm. While, both Treebo and Fab Hotels were able to sustain operations, the interim measures were imposed on the basis of adverse effect to the market. Arguably, in a digital market any attempt to reduce the online visibility could result in irreparable harm to competitors. Within this context, the proactiveness of CCI to redress marketplace concerns by utilising the interim measures is a welcome step.
The Court of Justice of European Union (CJEU) in its seminal judgment in the 1980 case of Camera Care Ltd. v. Commission of European Communities (Camera Care) had first introduced interim measures as an instrument in investigations. These measures were codified under Article 8 of Regulation1/2003. It requires that there must be an urgency arising out of potential irreparable harm to the competition and the market and there must be prima-facie assessment of an infringement. The prima-facie assessment contemplated by the Regulation infers a preliminary high-level assessment. Thus, semantically, the condition precedents are similar to that required under Section 33 in India.
Similar to the Indian approach, the interim measures have remained a dormant power of the EC. Previously, the EC had imposed such interim measures in the IMS Health case, however, the same was reversed by the Court of First Instance. As per the judgment, the challenging parties need not present a strong argument but a prima-facie evaluation of invalidity shall suffice. Further, the court shall balance the interest of parties by assessing the impact of interim measures, the EC thereby will have to proceed heedfully since any adverse effect on the competitiveness of the applicant would make the measures invalid. Another detriment of imposing such measures is the additional time constraints arising out of the need to provide Statement of Object, the access to the information files and opportunity of being heard to the parties.
Although, the interim measures have sparingly been used in the past, the approach is about to change with the observations made by the EC in the Broadcom case. The EC is all set to make elaborative use of the interim measures in the digital market. The interventionist approach seeks to make effective use of all the powers to thwart anti-competitive behaviour. It is in consonance with the narrative advocating greater regulation of the Big Tech companies. A possible contributing factor is the failure of the EC to remedy the abuse of dominant position in the Google Shopping case despite a 7 year-long investigation into the allegations. A similar approach could be observed in the United Kingdom (UK) as well wherein the Furman report advises to further lower the thresholds of imposition of the interim measures by the Competition and Market Authority (CMA). The report goes to the extend to suggest limiting the scope of appeal and the provision of only limited documentation to limit the time requirements in the imposition of such measures. The rational is the need for protection against the anti-competitive actions till such time a final decision is taken.
Likely Impact on Digital Market
While the Sail test in India and the IMS Health case in the European Union have established a high threshold for the imposition of interim measures, the perusal of the Furman report does indicate that there might be a possibility to override the effects of such judgements by enacting legislations that impose a lower threshold. Pertinently, both these seminal judgements were made in the years prior to the digital boom and do not take into consideration the characteristic features of a digital market wherein the exploitation of network effect and extreme return to scale may result in irreparable damage to market competition. For long, the inaction of the regulators during the period of investigation has benefitted these dominant entities in permanently eliminating competition. The interventionist approach makes the regulator take into consideration the dynamic nature of such fast moving markets.
The proactiveness of the CCI largely seems to be influenced by the shift in stance of the EC. The similarity in the approaches taken in distinct but similar cases by the regulators in India and EU as well as the report of the commission in UK, suggests the establishment of a uniform framework wherein the imposition of interim measures becomes a rule rather than an exception. This would suggest that intermediaries and dominant entities in digital markets would be subjected to greater scrutiny. The evolving regulations could result in the imposition of interim measures limiting their operational abilities till such time the investigation is completed. This would entail a cautious approach by the entities to avoid being subjected to such interim measures that might hamper their businesses.
Although, the interventionist approach undertaken by the CCI shall be considered a rare undertaking, the occurrence at a time when the EC seeks to revitalize the adoption of interim measures and a UK commission has attempted to revamp the framework governing such measures could indicate a sense of permanency of such an approach. It would enable the regulators to take into consideration the dynamic nature of digital markets and intervene proactively to safeguard competition till such time a final decision may be taken. This would prevent the undue benefit of prolonged investigation being exploited by dominant entities in such a way so as to irreversibly eliminate competition in the interim. The adverse effect of interim measures on the operational prospects would prevent the entities from engaging in anti-competitive activities by adopting a precautionary approach.
While such proactiveness of the CCI and other such regulators are a welcome step, it cannot effectively regulate the digital markets unless a legislative attempt is made to counter the high threshold of the Sail and IMS health cases as well as the relatively high investigation and time burden. A lower threshold shall enable greater use of such interim measures but should at the same time be subject to the due application of mind by the CCI, EC and CMA.