Piyush Gupta Head of Aviation & Competition and India practices
Competition Commission of India Exempts Cartel Behaviour
Vide its order dated 10 July 2020 (‘Order’), the Competition Commission of India (‘CCI’) found that ten (10) enterprises had indulged in cartelisation during the period 2009 to 2017. Curiously however, instead of imposing any fine or penalty, the errant companies were given a mere rap on their hands and let off with a warning.
While the CCI has cited various factors in taking this ‘measure’ – being the current economic scenario, the enterprises being micro, small and medium enterprises (‘MSMEs’), the level of cooperation accorded by the enterprises etc., the Order seemingly is in contravention to the CCI’s own advisory of April this year (‘Advisory’).
Per the Advisory, the fair trade watchdog had opined that some collaboration amongst competitors would be acceptable in light of the economic impact of COVID-19 but cautioned that only the conduct which was “necessary and proportionate to address(ing) concerns arising from COVID-19 would be considered” [for exemption]. The Advisory further clarified that businesses were not allowed to take advantage of COVID-19 to contravene any of the provisions of the Indian Competition Act (‘Act’).
What the Order portrays is seemingly a detour from the principle laid down under the Advisory. The question that begs an answer is – can “all” anti-competitive agreements and/or behaviour that the CCI is investigating currently avail of the COVID-19 exemption assuming that the enterprises under investigation proffer their cooperation to the investigation?
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