[ Anirudh Das and Saloni Neema are fifth year and fourth year students at Damodaram Sanjivayya National Law University, Visakhapatnam]
Introduction
It is no surprise to anyone in the legal fraternity that the Indian Legal system is completely clogged. With enough cases to last at least another 300 years, we are in no shortage of disputes. Such a bountiful of disputes is responsible for the inordinate delay in policy implementation and administrative action. A settlement and commitment regime is old, if not archaic, by global standards and is an interesting Avenue in the Indian Competition regime.
The current article analyzed the much-anticipated Indian draft regulations for settlements and Commitments alongside the legal aspects of mature jurisdictions like European Union Settlements and cartel procedures and Commitments. The author also provided a suggestive framework to make the current draft provisions robust while comparing EU procedures.
The (Settlement &Commitment) Regulations, 2023
The Competition Act has been overhauled in the last couple of months. If anything, this iteration was expected to add a settlement and commitment mechanism. The Competition (Settlement) Regulation, 2023, and its Commitment counterparts are draft regulations yet to be presented before the parliament. Although they raise intriguing questions, there can be no debate about their utility, especially considering the little success that CCI has had in enforcing penalties.
The Regulations, formally known as the Competition Commission of India (Settlement) Regulations, 2023 (Herein after “Settlement Regulations”) and The Competition Commission of India (Commitment) Regulations, 2023 (hereinafter “Commitment Regulations”), allow for two separate applications, namely settlement application and Commitment application.
Settlement vs. Commitment
Both applications have a set of shared characteristics. For instance, under the settlement and commitment applications, the applicant can only be such a person against whom an inquiry/ report has been initiated/filed under Section 3(4) and Section 4 of the Competition Act. Essentially, the grounds for the application are:
Abuse of dominant position &
Anti-competitive vertical agreement is covered, provided an application is madwithin 45 days after the DG passes the order/report.
Even the disclosure requirements given under the regulations, although quite rigorous, are similar; both require that companies disclose (under regulations 3 of each of the regulations):
full and true disclosure of facts in respect of the alleged contraventions of the Act
the manner in which the proposal in the application will address the alleged contravention,
competition concerns, and manner of implementation and monitoring of the proposal in the application.
has previously been found to have contravened any provision of the Act or any proceeding against the applicant is pending
details of nature, gravity and impact of the alleged contraventions, and the duration of the enterprise’s involvement in the alleged contraventions.
Any other information that may assist the Commission in determining the terms of the commitment having due regard to the factors specified under regulations 7 and 4 of the commitment and settlement regulations, respectively.
There are a few interesting aspects of these regulations. For instance, under regulations 12,& 11, the DG (Director General of the Competition Commission of India) can use the material disclosed on the settlement/commitment application to investigate the applicant or any other individuals should the negotiations go south.
Additionally, even should the settlement/commitment application be accepted in total, there is always the possibility that the other aspects that are not squarely covered due to Regulation 11 /10 may invalidate the order, least to speak of an order that only covers a part of the investigation under regulation 13/12 thereby allowing the DG to investigate the matters not covered by the application effectively rendering the entire process moot for the entity applying. Although, these proceedings have a certain finality under Regulation 7/ 6.
Both regulations share much of the legislative framework, albeit the numbers have been re-arranged slightly. Even the framework for the monitoring mechanism in both cases is the same, almost verbatim!
The only discernable difference between the two applications seems to arise in reference to when they can be filed. So, while a commitment application is filed during an inquiry, a settlement application can only be filed after the DG has submitted the report.
Fountain Head of Settlement & Commitment Regulations- European Union
The new regulations are derivative of the European framework. India is not doing something unique with these legislations but is merely mirroring the practice established by the European Union regulators. The legislation is intriguing, primarily because India enjoys different vast and deep markets than Europe. Additionally, European markets are significantly more mature, and while the mechanism may be effective, this approach in India may face different enthusiasm.
In the EU, using commitments to resolve cases is so common that there is even a specific term for this approach called the “Commitment pathway” technique. The objective of such a strategy would be to establish a complete set of norms and institutions to which all participants must adhere simultaneously and under the same conditions. Such coordination in commitments propels all participants toward a more effective global competition law regime by significantly shrinking the timeline for investigation and resolution of cases. It drives towards mutual benefit through a commitment application.
A clear advantage to the streamlined manner of this approach can be observed in the Coca-Cola COMP/A.39.116/B2 (European Commission) case, where the company had violated Article 102 TFEU and undertook a series of commitments duly adopted by the Commission and made binding. One could only imagine the resources saved from not having to investigate a company as large as Coca-Cola.
The Settlement Paradigm under European Union Regulations
In the case of settlements in the EU, cooperation is rewarded with a reduced fine. The settlement mechanism benefits the Commission by allowing more cases to be resolved and decreasing the likelihood of appeals. Aside from the lower penalties, the benefits to the parties include less time and money spent on the investigation; there may also be reputational advantages when investigations are completed quickly rather than taking an extended period.
For instance, in the European Commission Settlement Cartel of DRAMs COMP/38.511, following a leniency application, the European Commission initiated proceedings under Article 11(6) Regulation 1/2003. Since all the participants believed that there was sufficient scope for potential objections and that there was the possibility for fines to be imposed by the Commission, they submitted formal requests to settle in the form of settlement proposals without a full-fledged investigation into the matter thereby significantly reducing the time taken for investigating the case.
Concomitant Legislative Frameworks of the European Union
With all else being equal, adopting these regulations is a welcome step. In the author’s opinion, it should usher in an era of adopting legislation and best practices from across the globe. Another framework that could benefit India from Europe would be The Notice on the Conduct of Settlement Procedures, which outlines the process for rewarding cooperation in cartel-related proceedings. Although the regulators retain comprehensive discretion under the regulation, it helps strengthen the conduct of investigation in cartel-related cases, a disease sure to infect India as it sets sail to become a $5 Trillion economy.
Even the June 2006 Guidelines on setting fines, pursuant to Article 23(2)(a) of Regulation No 1/2003, would be a worthy addition to the Indian legislative arsenal. In this regulation, the European Commission outlines guardrails for fines that, while increasing their deterrent effect, are enforceable in their courts. It has an exciting calculation mechanism, with a 2-tier fine calculation system: a base fine at the first level and a second fine, which adjusts the base fine by evaluating aggravating and mitigating factors.
CONCLUSION
An overarching theme of the new regulations is lightning efficiency, a 120-day timeline for the entire process, an Independent Monitoring system, and A Non-adversarial approach all tie together to formulate a policy that can affect a complete paradigm shift.
However, while India’s continued experimentation with alternate methods of resolving past and future conflicts is fascinating, it begs the question, where do we draw the line between a non-fungible conflict of justice and morality? In small-ticket matters, the line could be an administrative decision that relies on finding a sweet spot to optimize government revenues while guarding against trivializing any severe market infringement. However, in high-value matters cases, it becomes a matter of policy and justice since no compensation can rehabilitate the business entities that went bankrupt or restore the community from the damages that the actions of anti-competitive practices have caused. India should, therefore, adopt a different thinking than the European Commission sometimes has, enabling players on mere technical grounds. The Indian standards have to be set higher than that.
Although the regulations are nascent and bound to undergo significant change before being enacted or discarded, we need to engage in a discussion considering the potential implications for business culture. As we embark on a journey to commercialize dispute resolution, we cannot replicate European regulations and expect a similar response. Instead, it must be tailored to suit the Indian context.
In the authors’ opinion, India should adopt the idea with adaptability and flexibility in importing, modifying, enacting, and amending legislation. The author believes that can be a panacea to India’s regulatory tussles.