Competition Law

[By Anmol Aggarwal] The author is a student of Rajiv Gandhi National University of Law, Patiala.   Introduction  The Ministry of Corporate Affairs (“MCA”) on 12 March 2024 released the draft report of the Committee on Digital Competition Law (“CDCL”) and a Draft Digital Competition Bill (“the draft bill”). The CDCL report seeks to lower the threshold of proof required to determine anti-competitive practices by certain large undertakings to the lowest threshold of “ex-ante measure” or determining the abusive practices on a “by object” basis. This essentially means that the anti-competitive practices by such undertakings would be determined without examining any effects or potential effects of the conduct. The report proposed several quantitative and qualitative benchmarks to determine the entities that would fall under the ambit of the new bill, designating these entities as Systematically Significant Digital Enterprises (“SSDE”). In this piece, the author analyses how this shift from ex-post to ex-ante framework for SSDEs is harmful. It poses a huge risk of false convictions and will disincentivize such enterprises to indulge in innovations. The report mentions that the current move is in line with the Digital Markets Act, 2022 (“DMA”) enacted in the European Union (“EU”). Although not viable, under the EU Competition Law, the low threshold of the ex-ante framework can still work as it imposes only monetary fines for infringements. However, such a low threshold is dangerous in the Indian Competition regime as it consists of monetary fines and imprisonment of a term extending up to 3 years in case of an infringement. The author argues that such a low threshold is not viable in a framework in which the punishment consists of imprisonment in addition to monetary fines.  Risk of false convictions  The new ex-ante framework or “by object” approach in identifying abuse of dominance by SSDEs poses a huge risk of false convictions, which goes against the principle of presumption of innocence. This principle is an undebated principle that works to favour the undertaking alleged of the abusive conduct. The determination of the abuse by object, i.e. before even looking at the facts, will result in innocent actions of the firms to come under the ambit of anti-competitive conduct.   For instance, let us assume a dominant software company provides an office suite with several tools like Word processing software, presentation software and spreadsheets, among others. This company has introduced a new email management system integrated into the suite. Now, the company has done the same with an intent to improve the consumer experience and provide seamless productivity and streamlined workflows to the consumers. The dominant firm, while not intending to foreclose competition, would face liability for tying under the ex-ante framework, leading to the imposition of a huge fine.  Under the EU jurisprudence, the antitrust fines qualify as “criminal sanctions” as they meet the “Engel criteria” developed by the European Court of Human Rights (“ECHR”). This criterion considers several factors, such as the nature of the penalty and domestic context, among others. Given that the Indian Competition regime has largely evolved by examining the EU Competition regime, one can infer that antitrust fines in India also qualify as “criminal sanctions”. Looking at the severity of punishments for finding abusive conduct, avoiding false convictions at any cost is imperative. As stated by a famous English Jurist that “It is better that ten guilty persons escape than that one innocent suffer”. The new bill seeks to prevent anti-competitive conduct before it even materialises, which, looking at the high risk of false convictions, will prove to be a blunder in the Indian Competition regime.  To avoid such risks, the EU Competition regime has consistently shifted towards an effects-based approach or ex-post framework when analysing anti-competitive conduct.  As can be observed in the recent competition policy brief (“policy brief”) regarding 2023 amendment to the 2008 Guidance on the Commission’s Enforcement Priorities in Applying Article 82 (“Guidelines”), wherein the policy brief departs from the object-based approach of the 2008 Guidelines, stating that “the Commission is committed to an effects based enforcement of Article 102 TFEU, which fully takes into account the dynamic nature of competition and constitutes a workable basis for vigorous enforcement”. As the EU competition regime progressively adopts an effect-based approach, it is incongruous for the Indian Competition regime to regress towards an object-based approach in assessing anti-competitive conduct.  The Justification Of It Being In Line With EU’s DMA Is Erroneous  One line of reasoning we can observe while looking at the report is that the proposed bill is in line with the EU’s DMA, 2022. This reasoning is highly erroneous, as discrepancies exist in the punishments prescribed in the proposed bill and DMA. The punishment under the DMA is a monetary penalty of up to 10% of the undertaking’s worldwide annual turnover, which extends to a maximum of 20% considering the repetitive infringements. Contrary to this, the punishment for repetitive infringements and not following the orders of the Competition Commission of India (“CCI”) embarks an imprisonment of up to 3 years in addition to huge monetary fines. Thus, the threshold of determining anti-competitive conduct cannot be compared to the DMA, as the punishments under the proposed Bill and DMA are inconsistent.  Further, the criteria to determine the firms that would fall under the ambit of SSDE is highly arbitrary as it vests a disproportionately large discretion with the CCI. This arbitrariness exists because the report gives discretionary power to CCI to designate an undertaking as SSDE, even if it does not meet the quantitative and qualitative criteria laid down in the report. An ex-ante approach coupled with such arbitrariness and punishments, including imprisonment in addition to the monetary fines, will be a disastrous measure for the Indian Competition Regime.  The Proposed Rules will Disincentivise Firms To Indulge in Innovatation  The proposed bill puts the SSDEs under large scrutiny and restrictions, which will, in turn, lead to a strike at the innovation. The dominant firms are the largest contributors to present-day innovations around the globe, consider the

[By Gurman Narula & Sharad Khemka] The authors are students of National Law Institute University, Bhopal.   Introduction  Section 53B of the Competition Act states that any enterprise, government or “any person aggrieved” can file an appeal challenging the order of the Competition Commission of India. The term “Person aggrieved” is not defined anywhere in the whole act, the courts and tribunals have tried to delineate the definition of person aggrieved in the context of the Competition Act but there is no fixed definition of the term and the court has followed different approaches while assessing the Locus Standi of Appellants who have filed an application u/s 53B of the Act. Although individuals who are parties to the case can file an appeal, the law is unclear on persons who are not parties to the case.   The discussion will begin by exploring the judicial evolution surrounding the term “person aggrieved.” Following this, the latest position on this matter will be elaborated. The terms will be analysed within different contexts to ensure a thorough comprehension. Lastly, an evaluation of the legal standpoint will be conducted, along with a discussion of suggested solutions.  Judicial evolution of the term ‘Person Aggrieved’   There is no definition of ‘person aggrieved’ in the competition act. The competition act states that ‘any person aggrieved can file an appeal’. The act provides that a person has to be aggrieved in order to file an appeal challenging the order, there is no part of the act which seeks to define the term.   The courts while delineating the term has relied on judgements which provide a general overview of the term ‘person aggrieved’. The court in the case of Adi Pherozshah Gandhi v HM Seervai observed that, “Disappointment with a case’s outcome doesn’t grant a ‘person aggrieved’ status. There must be a loss of expected benefits due to the order, leading to a legal grievance. Mere disagreement with the order or belief in someone’s guilt isn’t sufficient for legal standing”.  Further, in the case of A. Subash Babu v State of Andhra Pradesh it was observed by the Hon’ble Supreme Court that, “The term ‘aggrieved person’ is flexible and abstract, defying rigid definition. Its interpretation depends on various factors, including the statute in question, specific case circumstances, the complainant’s interests, and the extent of prejudice or injury suffered.”  While discussing the Locus Standi u/s 53B, the circumstances of each case shall be discussed and the intent of the Competition Act needs to be taken into consideration. The intent behind the Competition Act can be inferred from the Preamble of the Act which is;   An Act to provide, keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.  The term can be given different meanings in different circumstances which will be discussed in the later stage.   The court in the case of Ayaaubkhan Noorkhan Pathan v State of Maharasthra observed that, “It is legally established that outsiders cannot interfere in proceedings unless they prove they are aggrieved. Only those who have suffered legal harm can challenge actions in court. The court can enforce a public body’s duty if the petitioner proves a legal right, essential for invoking the court’s jurisdiction. Relief sought must enforce a legal right, usually belonging to the petitioner.”  These judgments did not delineate the term ‘person aggrieved’ in the context of Competition Act or in the specific circumstances of that of an appeal related to the Competition Act.   Person Aggrieved in the context of the Competition Act  The NCLAT in the case of Jitendra Bhargav v CCI delineated person aggrieved in the context of Competition Act by taking into account various judgements, some of which has been provided in the earlier section.   The NCLAT noted that Locus standi needs to be proved before proceeding with analyzing the merits of the case. In the case, Jitendra Bhargav filed an appeal challenging the order of CCI approving the merger between Jet and Etihad.  Jitendra Bhargav contended that there is a likelihood of Appreciable Adverse Effect on Competition (AAEC).   NCLAT held that likelihood of AAEC cannot pose as a sufficient ground to allow the appeal of Jitendra Bhargav and it needs to be proved first that the person appealing the order is an aggrieved person and the order of CCI cannot be discussed on merits until the Locus standi of the appellant is proved.   The Supreme court in the case of Samir Aggrawal v Union of India held that, “The expression ‘any person’ in section 53B needs to be construed liberally. The court held that appeals which are in the nature of public interest should be allowed and since the CCI performs an inquisitorial function, the doors of CCI and the appellate body NCLAT must be kept wide open.  This case brought a shift in the approach adopted by the courts and the tribunals while delineating who will constitute as a person aggrieved within the meaning of Section 53B. It led the courts and tribunals to take a liberal and expansive approach rather than strict interpretation of the section.   The latest case involving appeal u/s 53B is that of UP glass manufactures v CCI. NCLAT in the present case allowed the appeal filed by UP glass manufactures while adopting the approach taken in the case of Samir Aggrawal.   Analysis  Although the approach established in the Samir Aggrawal case is in line with the intent and objective of Competition act as it seeks to allow appeals that aim to ensure a level playing field and prevent firms from indulging in anti-competitive practices, it leads to perplexity and inefficiency as this approach cannot be used uniformly in all the cases.   In the case of UP glass manufactures, the appeal was allowed,

[By Soujanya Boxy & Shourya Mitra] The authors are students of National Law University, Odisha and Jindal Global Law School, Sonipat, Haryana respectively.   Introduction  The new-age digital world is increasingly embroiled in a complex interplay between tech giants and market fairness regulators. Striking a balance between effective regulation and fostering innovation has become more crucial than ever. Apple, designated as a “gatekeeper” under the European Union’s (‘EU’) Digital Markets Act (‘DMA’), faces scrutiny for its closed mobile ecosystem. Critics and competitors argue that this closed ecosystem stifles their ability to reach users, limiting user choice and stifling competition.   However, the burning question is whether proponents of reforms can solely justify their demands for an open mobile ecosystem by highlighting its tangible benefits, without acknowledging the advantages of closed ecosystems to users and competition. In this post, the authors explore the multifaceted impact of Apple’s closed ecosystem on competition and consumers.   Biting the Apple: A Look at Antitrust Issues  Apple, a leading tech company, has cemented its footing in the market for personal devices through its unique walled garden-like ecosystem, which remains a source of contention within the mobile ecosystem for being restrictive and anti-competitive. A mobile ecosystem is the interconnected world of a mobile device company’s products and services, including hardware, software, apps, and user accounts.  While many antitrust lawsuits are already pushing Apple to revamp its model or ecosystem, new laws like the much-discussed the EU’s DMA and South Korea’s recent amendment to its Telecommunication Business Act are adding pressure to open up Apple’s ecosystem, aiming to restore fairness and competitiveness in the market. In response to the EU’s DMA designating Apple as a gatekeeper, the company has announced changes to its operating system (iOS), App Store, and web browser (Safari). These changes loosen restrictions on its devices, particularly regarding payment processing and app distribution. Apple is opening its previously walled garden-like ecosystem to rival app developers and marketplaces, and introducing new terms for using alternative payment methods and distributing apps. While the changes have their criticisms, they represent a major shift for Apple and an attempt to comply with the DMA.  A common thread runs through antitrust debates on Apple’s practices as several jurisdictions including the EU, United States (‘US’), Russia, and China share concerns about similar anti-competitive practices. App developers argue that Apple’s high fees and control over the App Store are causing them substantial financial losses. Countries, such as Japan and South Korea, have already taken action by requiring Apple to modify its App Store practices. Similarly, the US Justice Department is in the final stages of a probe examining Apple’s practices related to its hardware and software integration, specifically how these practices may limit competition and discourage users from switching to alternative platforms. Specifically, the investigation is looking into how Apple’s practices, such as restrictions on iMessage and the enhanced functionality of Apple Watch when paired with iPhones, may stifle competition in the mobile device market.  As global antitrust regulators tighten their scrutiny and enact stricter laws to control Apple’s alleged monopolistic practices, concerns are mounting that these regulatory measures may go beyond achieving fairness and could inadvertently hinder the company’s ability to generate profits.  Further, antitrust legislative reforms are aimed at controlling the platforms’ ability to offer and integrate their own apps and services alongside of their competitors, which could unfairly incentivise their own offerings. Competing app developers express concerns over Apple’s excessive app fees and its practice of integrating its own services, like the music-streaming service, with its features like SharePlay and Photos. Additionally, Apple exempts its own services from the app fees payment, enabling them to undercut their competitors on price.   The European Commission (‘EC’) ruled that Apple is in preliminary violation of antitrust laws, citing antitrust concerns in the mobile wallet market. Apple was found abusing its dominant position by restricting mobile wallet app developers’ access to necessary software and hardware on iOS devices, thereby reducing competition in the mobile payments space. As a response to these concerns raised in the European Economic Area (‘EEA’), Apple came up with the proposal, allowing third-party developers to provide the option to their users to make Near-Field Communication (‘NFC’) contactless payments on their iOS apps, without relying on Apple Wallet and Apple Pay.  Walled Garden or Secure Oasis?  Apple is worried about the negative impact on its user privacy and security as some regulations have begun to mandate the inclusion of third-party App Stores and apps on its devices. Currently, all apps distributed through its own App Store go through a standard vetting process. On top of that, the company maintains a closed ecosystem, wherein apps are downloaded only through its App Store to ensure user privacy and security. Despite this, it faces increasing pressure to open up its ecosystem, allowing alternative App Stores and “side-loading”, which could pose challenges for upholding the existing user privacy and security standards.  While Apple’s robust vetting process and closed ecosystem build a perception of enhanced-level user privacy and security, vulnerabilities do still exist. Yet, Apple’s comprehensive approach, including close scrutiny of apps and ongoing security improvements, helps to safeguard its devices from malware intrusion. The Apple devices are built in such a way that the users even accidently can’t fall prey to any malicious sites or apps.   While critics of Apple’s ecosystem focus on its drawbacks, they should also consider the possible security risks that Apple has consistently highlighted for its users. Privacy and security concerns remain paramount in today’s digital landscape. It is not only unethical but eventually unsustainable to sacrifice users’ trust for the sake of perceived competitive fairness.  The Fight for an Ecosystem  A growing trend of building a closed ecosystem among tech giants like Apple, raises concerns about locking users into using a range of their products and services and potential self-preferencing. Self-preferencing is a practice by large digital platforms of favouring their own products or services over those offered by competitors operating on their platforms. The DMA currently cracks

[By Mustafa Topiwala & Raima Singh] The authors are students of Rajiv Gandhi National University of Law, Punjab.   Introduction The Competition Act, 2002 (hereinafter, “principal act”), was enacted to regulate major anti-competitive market practices as laid down in the case of CCI v. Bharti Airtel Ltd. On 11 April, 2023, the Competition (Amendment) Act, 2023 (hereinafter, “amendment”), was announced by the Competition Commission of India (hereinafter, “CCI”) in the Gazette of India. It has expanded the scope of anti-competitive agreements, introduced a Settlement and Commitment Framework for quick market connection, augmented the powers of the Director General (hereinafter, “DG”), etc. While the forthcoming changes are poised to bolster procedural efficiency and functioning of the CCI, it is imperative to acknowledge the adverse ramifications of the same. This article aims to address certain negative aspects of the amendment, while focusing on one key area – the powers of the DG and their subsequent impact. Further, the authors strive to suggest reformative measures by analyzing similar provisions in well-established antitrust regimes such as the United States’ (US), and the European Union’s (EU) antitrust laws. Amended Powers of the Director General The powers of the DG have always been under the government’s recurring scrutiny. Even in 2012, the Competition (Amendment) Bill was introduced to allow the DG to conduct search and seizure operations after directly obtaining the requisite permissions from the CCI, contrary to the requirement of an approval from the magistrate of the relevant jurisdiction; akin to the powers of an Inspector under Sections 240 and 240-A of the Companies Act, 1956. The 2023 amendment has entirely modified Section 41 of the principal act. The authority to appoint the DG, which was earlier vested with the Central Government, has now shifted to the CCI, which can select a DG through a search-cum-selection committee after obtaining prior approval of the Central Government. Furthermore, prior to the amendment, the DG’s investigatory authority was invoked under Companies Act, as stipulated under Section 41(3) of the principal act. Section 240 of Companies Act allows an inspector to furnish information (books, papers, etc.) from a corporate body, after prior approval from the Central Government. Similarly, before the amendment, the DG could only commence investigation and furnish relevant information upon the direction of the CCI. Under the Section 41(3) of the amendment, during an investigation, the DG or any party authorized by him can furnish any information it considers relevant from the investigated party without prior approval from the CCI. This stands in contrast to the previous relation with Section 240 wherein the investigating officer could do the same only after being permitted by the Central Government, as highlighted in the case of CCI v. JCB (India) Ltd. Additionally, the DG was mandated to obligatorily restrict their investigation solely to the allegation referred to them by the CCI. Efforts to delineate the scope of the DG by the judiciary were taken in the case of Excel Crop Care Ltd. v. CCI, wherein the Supreme Court had held that the paramount objective of the DG was to ensure fair and anti-competitive market, and thus allowed for the expansion of the DG’s power in that specific instance. The position was clarified later in cases such as CCI v. Grasim Industries Ltd.where the DG was allowed to investigate  newly discovered contraventions during the investigation and bring it to the notice of the CCI. The amendment, after augmenting the investigatory capacity of the DG, certainly endeavors to ensure a fair market, giving more autonomy to the DG to furnish reports and uncover new contraventions autonomously. Although, considering the departure from Section 240 of the Companies Act and the amplification of the DG’s powers, it might pave the way for abuse of such power in the future. It is noteworthy that there has been no incorporation of buffer provisions to safeguard any overriding act by the DG. Furthermore, vesting the authority to appoint the DG with the CCI could foster corrupt activities by the CCI, which is exacerbated by the fact that it can already launch an investigation based on mere “opinion” (Section 21(1) of the principal act), now compounded with its preferred DG with their additional expanded powers. US & EU Provisions The Competition (Amendment) Act, 2023, aims to advance India’s antitrust laws towards the standards set by nations such as the US. Consequently, it becomes imperative to analyze whether the current shortfalls in the amendment, particularly the legislation pertaining to the powers of the DG, can be addressed by examining analogous laws of the US and the EU. Position in USA The structure of the antitrust laws in the US is characterized by bifurcation of enforcement responsibilities between two agencies: the Antitrust Division of the US Department of Justice, and the Federal Trade Commission (hereinafter, “FTC”). Notably, the implementation of the law does not only depend upon an individual or body, but it also incorporates the perspective of economists, lawyers and judges at various stages. The FTC, headed by commissioners elected by the president, takes pivotal decisions working collectively with these renowned professionals. This is vital, for it ensures expert perspective in decision-making processes, and also reduces any potential misuse of the autonomy by the commissioners. Applying a similar concept to the enhanced powers of theDG may optimize the utilization of the expanded authority Position in EU The Treaty on the Functioning of the European Union incorporates fundamental provisions of antitrust law (Articles 101 and 102). Within the EU, the powers vested with the Hearing Officer parallels those of the DG in India. Both the authorities have the right to conduct search-operations for important documents, books etc. when deemed necessary. The recent expansion of the powers of the DG could be made subject to supervision, akin to the role of the EU Ombudsman. The EU Ombudsman investigates administrative shortcomings of the EU institutions, which may be lodged by citizens or residents of EU countries or by EU-based organizations. Such a system upholds the non-arbitrariness of the hearing officer, and

[By Anmol Aggarwal & Ria Bansal] The authors are students of Rajiv Gandhi National University of Law.   Introduction  The advent of Artificial Intelligence (‘AI’) technology has opened the gates to many potential methods of abuse of dominance that would not have the potential to exist on a large scale without AI technology. Geo-fencing is one of those methods, which, if used by a dominant firm to cause market rupturing, can lead to antitrust concerns. Geo-fencing refers to a technology used to mark a digital geographical boundary using tools like Global Positioning System (‘GPS’) around a specific determined territorial area or, in simple words, create a geo-fence around that specific area. Although primarily used for healthy market advertisement practices, this technology can become a leading concern in the antitrust regime.   Although the illegitimate use of geo-fencing is regulated by various technology acts like the Digital Personal Data Protection Act, 2023, and Information Technology Act, 2000, among others, this piece will argue on how dominant firms indulging in client-poaching using geo-fencing can lead to an anti-competitive practice and calls for the need of investigative tools and regulation of the existing Competition Law Authorities in India. The authors also propose a risk-assessment model for the potential abuse of the dominant position using geo-fencing technology.  Client-Poaching Vis-à-vis Geo-fencing  Geo-fencing is often used as a market penetration technique used by firms to steal the potential or existing clients of a rival firm. This poaching takes place through extensive digital marketing practices (such as advertisements) that a firm indulges in, which helps it offer comparatively better prices for its products than its rivals offer. Although it can be regarded as a healthy practice for new firms trying to penetrate the market, geo-fencing can lead to greater evil than good if not regulated by the competition authorities. As stated above, the usage is beneficial if deployed by a new market entrant as it can help it gain market power and, in turn, maintain healthy competition in the market. The specific laws pertaining to geo-fencing are capable enough to identify the illegitimate use of geo-fencing. However, the issue arises when a new market entrant and a dominant firm both deploy geo-fencing techniques to gain market power. The inability of specific laws to draw a line between the acts of these two types of firms calls for competition law authorities to interfere and prevent the foreclosure of competition in such a case. The same will be better understood through this illustration showcasing two different situations -   Situation 1 - A firm ‘A’ trying to make its place in the relevant market of ‘house brokerage’ deploys a geo-fencing technique to poach clients from its rival firm ‘B’ in the same relevant market. It deploys a geo-fence around the offices of firm ‘B’ and bombards the potential clients of ‘B’ with advertisements showing better house prices. With the help of this technology, ‘A’ was able to break the entry barrier and make its place in the market, which led to the entrance of a new market player and the promotion of healthy competition in the market.  Situation 2 - A dominant firm, ‘X,’ with considerable market power and a market share of 90% in the relevant market of ‘house brokerage’ deploys a geo-fencing technique to poach clients from its rival firm, ‘Y,’ which is the second largest player in the market, by providing its potential clients with advertisements of better prices for the houses. This leads to ‘Y’ losing its clients and eventually eliminating firm ‘Y’ from the relevant market, leaving ‘X’ with a monopoly position with no rival.  Now, in both of the situations mentioned above, the technique of geo-fencing was deployed by the firms. When we see it through the lens of specific laws, there is no technical illegality in the action of the firms in both cases, as advertising using geo-fencing is a practice that firms indulge in day-to-day life, and there is nothing against the law in digital advertising of better prices to the potential customers.  However, when the same is seen from the eyes of Antitrust Law, we will find that in ‘situation 2’, there is a foreclosure of competition in the relevant market of ‘house brokerage’. However, to determine the same, the Competition Commission of India (‘CCI’) uses investigative tools to determine factors like relevant market and market power, among others, and ultimately finds out whether a firm is abusing its dominant position. The same kind of investigation is impossible if done through the lens of specific laws as they lack the requisite tools and powers to identify whether market foreclosure is taking place.  Solutions  The existing solutions, like the doctrine of special responsibility for the dominant firms, are capable of curbing this problem. The doctrine of special responsibility, as stated by the court in the EU case law of Michelin v. Commission, refers to the responsibility of a dominant firm to take special care of its actions so that its conduct does not impair competition in the market.  However, the authors believes that additional methods, beyond the existing antitrust principles are required to curb this problem in the future and, therefore, proposes a model similar to the recent risk assessment model of the proposed global AI regulatory framework. Under this model suggested by the authors, the firms can be divided into parts according to their market powers in respective relevant markets. Now, these parts can be categorized ranging from high risk to moderate, low and negligible risks according to the extent to which geo-fencing technology could harm the competition in the market.  CCI or a new separate regulatory body under CCI’s control can regularly check the firms falling in the high-risk and moderate-risk brackets. This will help curb this futuristic problem of the abuse of dominance using geo-fencing technology, even before the firm indulges in it. A constant check by the regulatory body will help prevent market distortion practices by dominant firms who plan to use geo-fencing technology for client-poaching from their rivals.  Conclusion   The problem of client-poaching using

[By Anshula Sinha & Aashish Gupta] The authors are students of NLU Jodhpur.   Introduction Leniency programmes [“LP”] incentivise companies/firms to report collusion leading to anti-trust violations through reduced sanctions or even immunity from fines and legal penalties. LP aims to uncover and dismantle cartels by providing incentives for cartel participants to self-report their involvement in cartel activities. There are two types of scenarios that may arise when an adjudicating authority [“AA”] adopts an LP. Firstly, collusion and do not reveal when investigated, which is referred to as Collusion and No Reporting [“CNR”] second situation is when there is a collusion and reveal when investigated, which is Collusion and Reveal [“CR”].  The former is such that firms do not reveal collusive information to the AA even if the investigation takes place. The latter is that firms reveal collusive information to the AA once the investigation is opened.[i] Leniency programs are designed to encourage companies to reveal collusion and cooperate with authorities, which can help uncover and dismantle cartels more effectively.. This approach aims to create a stronger deterrent against collusion and promote fair competition in the market. The Competition Commission of India has inconsistently granted reductions and maintained anonymity. These concerns have hampered the leniency program’s goals. The article compares the leniency programs targeting anticompetitive behavior in India and the US, focusing on cartel activities. It separately reviews the cartel leniency programs in both countries and conducts a comparative analysis. Additionally, it explores how India can enhance its framework by adopting specific elements from the US program. Overview of Cartel LP in the USA The notion of leniency first emerged in the United States as a means to address the challenges encountered by law enforcement agencies in detecting cartels and subsequently gathering compelling evidence to construct a legal argument against them.The US Department of Justice [“DOJ”] Antitrust Division’s leniency programme is not governed by statute. The programme is run by the Antitrust Division at the prosecutor’s discretion. The programme includes the Antitrust Division’s Corporate Leniency Policy as well as its Individual Leniency Policy [“US LP”].[ii] Corporations that do not qualify for full immunity under the US Leniency Programme but cooperate with the Antitrust Division can profit during the charge or sentence stages of criminal antitrust prosecution. Furthermore, a separate federal statute, the Antitrust Criminal Penalty Enhancement and Reform Act [“ACPERA”], which was re-enacted in October 2020, provides measures to reduce an applicant’s civil responsibility in subsequent private antitrust actions.[iii] Thereby providing immunity from both criminal and civil actions. The Corporate Leniency Policy encompasses two distinct categories of leniency, namely Type A and Type B. Leniency of Type A is exclusively accessible in cases when the Antitrust Division has not obtained any information regarding the reported action from any other source. Leniency under Type B might be sought even subsequent to the initiation of an inquiry by the Division. Both forms of corporate leniency necessitate comparable levels of cooperation and corporate acknowledgements.[iv] However, it is important to note that only Type A leniency ensures immunity for all directors, officers, and employees of the corporation who confess their participation in the violation and actively assist the Antitrust Division in its investigation.[v] The US Leniency Programme only applies to criminal antitrust violations, which, per Antitrust Division policy, include only agreements between competitors to fix prices, rig bidding, restrict output, or allocate markets and customers.The Antitrust Division is devoted to not prosecuting leniency recipients for criminal offences integral to the antitrust violation (such as mail or wire fraud offences in conjunction with the antitrust violation). However, the US Leniency Programme will only safeguard a leniency applicant from criminal prosecution by the Antitrust Division and not from any other divisions or agencies within the DOJ.[vi] Overview of Cartel Leniency in India Cartel formation is a pernicious offence under the Act. The Commission can inquire into any cartel and impose penalties as per Section 4 of the Competition Act, 2002 [“the Act”].[vii] Further, the Commission has the power, under Section 27 of the Act to pass orders for discontinuation, modification of the agreement, direction to abide by the order, etc.[viii]Section 46 of the relevant legislation confers authority upon the Competition Commission of India [“CCI”] to impose reduced fines and establishes specific criteria for disclosure that must be satisfied by the party seeking leniency.[ix] Previously, under Regulation 4, the reduction was determined by a marker system in which only the first three applicants for leniency received its benefits. With the 2017 Amendment, this restriction on the number of markers has been removed: the ‘first-in’ company/applicant is eligible for immunity, i.e., a reduction of 100%, the second applicant can receive a reduction of up to 50%, and subsequent applicants can receive a reduction of up to 30%.[x] Section 64 authorises the Commission to design regulations for matters covered by regulations to implement the Act’s leniency provisions. In August 2009, the Competition Commission of India (Lesser Penalty) Regulations, 2009[xi] [“Regulations, 2009”] were issued under such powers. [xii] These Regulations allow the Commission to reduce cartel punishments below statute. Under the Regulations,2009, there is no complete anonymity or confidentiality that is accorded to the applicant and it is contingent only upon the three conditions specified wherein the identity of the applicant, as well as information obtained from it, shall be treated as confidential and it shall not be disclosed.[xiii] Analysis of the major leniency orders passed by the CCI highlights various aspects of the leniency regime. In the Brushless DC Fans case[xiv], the CCI issued its first leniency order in January 2017. Initiated suo motu, the investigation revealed potential cartelization between manufacturers and suppliers of brushless fans. The CCI granted only a 75% penalty reduction to the first applicant who filed a leniency application and did not grant complete immunity.[xv] In the case involving the Zinc-carbon dry cell manufacturers cartel, Panasonic India received a 100% penalty reduction after disclosing collusion with Eveready Industries and Indo National to fix zinc-carbon dry cell battery prices. Immunity was granted to Panasonic as it exposed

[By Madhav Tripathi] The author is a student of RMLNLU, Lucknow.   Introduction Recently, a piece of news that made headlines in the antitrust arena of the world is that the Federal Trade Commission (hereinafter FTC) accused the e-commerce giant Amazon of duping millions of Americans by getting them to do recurring subscriptions of Amazon Prime by taking their consent illegally and also making hard for them to cancel it. According to FTC, Amazon has used ‘dark patterns’ to trick consumers into enrolling in automatically renewing Prime subscriptions, seeking civil penalties and a permanent injunction to prevent future violations. Nowadays, digital businesses are snowballing, especially in the post-Covid era, where the digital economy is the new normal. One of the many tactics these giants have used successfully to proliferate and crush their competitors is the “Dark Patterns”. Dark Patterns have many sub-types. One of them  is tricking users with different manipulative schemes influencing the choice of users on the internet. The article will try to analyze this aspect of the dark patterns and how the tech giants use them for their benefit. It will try to shed light on the latent harm  of the “Dark Patterns” on the market, and how this practice violates the antitrust law of the country. . The article will further delve into the current anti-trust framework of the country and analyse the extent to which the present Indian anti-trust regime is equipped to tackle this particular challenge. Demystifying Dark Patterns: Uncovering Manipulative User Interface Techniques In the words of  Harry Brignull, a user experience researcher in the U.K., Dark Pattern is a design or user interface technique intentionally crafted to manipulate or deceive users into making certain choices or taking specific actions that may not be in their best interest, such as buying overpriced insurance with their purchase or signing up for recurring bills. A few common examples of ‘dark patterns’ are spam mailing, confirm shaming, nudging, roach motel, etc. Dark patterns are numerous and exploit myriad biases in individuals. Amazon, for example, displays information on the number of stocks left for the product that one is currently viewing on its website. It is known as ‘scarcity bias’. It tends to emotionally nudge the customer into buying a product he would not have bought otherwise. In another instance, Spotify indulges in dark patterns through the ‘roach motel’ technique, which makes opting out of a subscription hard and cumbersome, thus increasing the chance of a continued subscription. Now, after understanding the modus operandi of these tech -giants, our focus must be to understand  the rationale behind such activity? If we see from a perspective, these big techs are referred to as giants because of the range of services they offer, catering to billions of customers across the globe. They have entered into every market and want to make every customer as their customer because they are presenting themselves as a “one-stop shop” for every product, which when done illicitly on the e-market, gives rise to the phenomenon called the “Walled Garden Approach”. Explaining the Phenomenon of Walled Garden Approach The definition explains the phenomenon as- On the internet, a walled garden is an environment that controls the user’s access to network-based content and services. It directs the user’s navigation within particular areas to enable access to a selection of materials or prevent access to other materials. It does not always prevent users from navigating outside the walls, but often makes it more difficult than staying within the environment. Apple’s App Store is a prime example of the use of a walled garden.Now, looking our current examples of Amazon or Spotify through the lens of the aforementioned definition, we can   undertand rrthe rationale of their modus operandi. In today ‘s internet universe, these giant firms are “world of themselves”. Amazon caters to every kind of customer when he/she takes its Prime membership. A Prime member to binge-watch uses “Amazon Prime”, to buy something, uses “Amazon e-commerce”, and, when paying for that, uses “Amazon Pay”. To listen to music, there is “Amazon -music”, which connects by using “The Amazon Eco-dot device”. This means in the world of Amazon; prime membership is a ticket. Once you enter it, Amazon will try all methods to compel the customer not to leave “Amazon’s Platform for another alternative platform” which throws light on the anti-trust angle. One such method is “Scarcity Bias”. As we saw in the example above, Amazon Compels the user by manipulation; after understanding that the user has spent considerable time on one product and likes the product, Amazon will trick the customer by showing “few left in the stock”. The user gets manipulated, does not check the same product on the other alternative and buys from Amazon. From this whole chain of actions, the rationale that we can understand is that –Amazon uses a “dark pattern” to “Wall Garden “its customer manipulating them not to leave its platform to avail the same service from other platforms. The recent accusation by FTC of forcing the customer to buy the prime or continue it or making it hard for them to cancel is also because of the same rationale of keeping the customer in its “Walled Garden.” Explaining the Anti-trust Angle in the Walled Garden Approach To understand the anti-trust angle in the Walled Garden Approach , we first need to understand the genesis of competition law beyond anti-competitive agreements or Abuse of Dominance. Competition means “In the commercial world, a striving for the customer and business of people in the marketplace making profits by the business strategies endeavor rather than any other illicit, unscrupulous or under-hand tactic and the prices of commodities is being dictated by the law of demand and supply. Now, when we talk about the market, is an open market where every entity can be seen, and no other entity can act as a barrier to the presence of other competitors. As when an entity becomes a barrier, this act can cause non-price injury to

[By Aryan Rawat] The author is a student of National Law University Odisha.   Introduction At the outset, the competition watchdog of India has booked Google, the creator of Android operating system for a barrage of anti-competitive restraints and abuse of dominant market mechanisms in the licensable mobile operating systems. As its zenith, Google has dominance in India with a monopoly of 99.74% share in the web search market raising concerns over the level playing field for other players. In this discussion, the test of effect-based analysis for establishing dominance by Google in relevant markets has been implemented and its relevance in India and the EU has been brought to light. The article implores the probe by CCI and NCLAT’s orders against Google while examining the way forward for antitrust suits for big techs in India. Test for Dominance: Checks and balances Through a series of decided cases, it has been a common judicial norm to use effect analysis to prove the dominance in digital markets. In Indian National Shipowners’ Association (INSA) v. ONGC Case No. 01 of 2018, a reasonability and fairness test has been instrumented to find out how the conditions lead to the dominant power of an enterprise and also examine the objective necessity for an enterprise to impose such conditions. The test of dominance need not be proved individually for every unit of an enterprise and the existence of abuse by parent company is enough to establish the liability for abuse. However, while dealing with cases like Faridabad Industries Association v. Adani Gas and GHCL Ltd v. Coal India, the effects-based approach was not adopted which marks the inconsistency in the application of the effects analysis test. In the European Union, under the ambit of the Treaty on Functioning of the European Union (TFEU), the courts have adopted the effect-based approach while dealing with dominant position and exclusionary abuse created by an entity. Precisely, Article 102 of the TFEU deals with abuse of dominance in relevant markets and is in cohort with Section 4 of the Indian Competition Act of 2002. Also, the European Couts of Justice have booked Google for anti-competition practices in compliance with Article 102 in 2018.  ‘Dominance’ as referred to in Article 102 of TEFU would mean “a position of economic strength on the relevant market by giving it the power to behave independently to an appreciable extent of its competitors and ultimately of its consumers.” The effect-based approach has been implored to develop a comprehensive framework to identify consumer harm and point out anti-competitive foreclosures. In the Intel v. Commission case, it was held that ‘exclusionary abuses’ can be considered only after a conclusive process of effect analysis to decide on the dominance factor of an entity in the market. This indicates that conduct will be termed as abusive and illegal only if it will deter competition, have anti-competitive effect and reproduce exclusionary effects. One of the issues that arose in the Google Android case was the application and necessity of an effects-based test and NCLAT, in appeal has decided in the affirmative regarding the usage of the effect-based perspective to check the dominance of Google in the market. The step is in adherence to establishing semblance with EU Competition law. In past, Indian antitrust adjudicating authorities have been lukewarm and inconsistent in adopting the effect-based approach, unlike EU. The approach is evolving towards the effects of dominance and not only protecting the competition but also the competitors. Facts deciding the faith of Google The parent company of Google, Alphabet has been faced with numerous antitrust investigations and proceedings in jurisdictions across the globe. With advancements in technology, Google has diversified its services and developed the Android Operating System, which is used by about 80% of smartphones worldwide, further widening the consumer reach by launching breakthrough applications and software in the Android smartphone industry.  However, these numbers serve as a trembling disadvantage to original equipment manufacturers operating in the Android market. The competition watchdog of India has condemned dominance created by Google services like Chrome, YouTube, and Google Play Store in contravention of Section 4 of the Act and imposed a penalty of INR 1337.76 crore vide Section 32 of the Act. The investigation was conducted by Director General and the final report chalked out the issues pertaining to anti-competitive practices. The dynamic nature of digital markets has  called in new forms of competition by creating network effect and multi-sided markets which are challenging to analyse under the traditional competition law jurisprudence. The tendency of consumers to not shift to new systems due to high switching costs or limited portability of data causes barriers to entry in digital markets.  The issues framed by the CCI are evidently similar to the antitrust proceeding by the EU where Google was fined 4.34 billion euros for strengthening the dominance of Google’s search engine. For the analysis of the anti-competitive practices and Google’s dominant position, CCI has delineated five relevant market(s) which are (i) licensable OS for smart mobile devices, (ii) apps stores, (iii) general web search services, (iv) non-OS mobile web browsers and (v) market for online video hosting platforms (OVHP) in India. Under Section 27 of the Act, the Commission has ordered Google to modify the agreements in contravention of fair coemption and innovation. The lawsuit can be traced back to 2018 when CCI adjudicated a complaint case in Mr. Umar Javeed & Ors. v Google LLC , where the Google services were called into question for scrutiny under section 4 of the Act. Although the paramount position in occupied by Google by owning Android’s governance model, deciding the roadmap, restrictive compatibility of Google forks and charging a commission of 30% for all in-store purchases. Appeal to NCLAT against CCI Orders The orders and penalty imposed by the CCI have been appealed by Google in National Company Law Tribunal (NCLAT) and the tribunal has admitted the appeal on submitting 10% of the imposed penalty. CCI imposed INR 1337.76 crore for violation of

[By Akul Mishra] The author is a student of Jindal Global Law School. Introduction: The Competition (Amendment) Act, of 2023 introduced several amendments to its parent statute which was in force since 2002. However, the amendments ignore a specific red flag when it comes to ensuring accountability in the remedial actions taken by companies who may have violated Chapter II of the Act after being served a notice or brought to the Appellate Tribunal.  However, the new amendments have followed the EU model, which now allows enterprises called into question over violations, to have a remedial commitment to violations stated by the Competition Commission of India. However, there are several issues regarding this newly introduced provision under Section 48(1). Although following the EU model, which has now developed as a rather strict competition regulator worldwide is not a liability for the CCI, there must be further considerations under the new provisions for the CCI to ensure that its jurisdiction and adjudicating ability are not withheld, and competition regulations are not downgraded to a checklist. Tracing the New Process: The new amendments have introduced Section 48A, which introduces the term ‘settlement’. Simply put, settlement allows for the enterprise under 48A(1) for settlement of proceedings initiated under Section 26(1). The onus on applying for settlement is on the enterpriseIt must follow the strict timeline and only apply between the date of the receipt of the report and the date  of any order has been passed by the CCI. Settlement is placed on the fact that the enterprise indirectly admits (without any liability, per se) the violation and offers to pay a fee or even introduce means to invalidate any violative process. Thus, it flows from a different tangent of a general ex-post proceeding Further, the CCI has the discretion to assess the violation on its gravity, timeline, nature etc., and assess whether the settlement is adequate for the violation or requires greater action. Otherwise, under 48A(5)  the CCI can pass an order to reject the settlement offer, and continue with the investigation, the order being non-appealable. Further, Section 48B also provides a distinct yet similar concept, by enabling the enterprise to offer commitments, to address all the violations assessed in receipt of the investigation report. The CCI is similarly enabled under 48B to have a discretionary power to assess whether the commitments are enough, and whether to accept or reject the application from the enterprise. Further, 48C gives a safeguard to the CCI if the enterprise applies for settlement or commitment but defers the improvements or contravenes a supportive order under Sections 48A and 48B. The Issues arising out of the Statutory Gap: A bare reading of 48A(3) and 48B(3) simply infers that the CCI needs to, after discretion over the submissions of settlements/ commitments simply has to accept them through an order. Further, there is no mention of whether the CCI has to record the infringement in question, and the sole discretion remains with the CCI if it wants to revoke the order which ascertains a settlement/commitment. The reason behind Competition law is to regulate markets, with a wide array of stakeholders in these transactions, including the enterprise, customers, sellers etc. Thus, there are ample provisions for addressing the concerns of a layman who may indirectly or directly suffer due to the violation of Competition Regulations/ the act itself and must get enough redressal at the appellate tribunal for the same. Thus, Section 53N provides redressal opportunities for the layman under the new amendments. Any person under Article 53(N) can now approach the Appellate Tribunal for damages amounting out to several instances including because of an order of settlement passed by the Commission. This amended provision provides a redressal forthe new provisions under Section 48A only. However, it is extremely hard to prove that there is damage arising out of a settlement order unless an infringement is mentioned in that order, which is not mandated by any provision under the new amendments. Furthermore, there is no provision for redressal for a layman who may suffer from damages out of a commitment order. The logic here could be, that a commitment order means improvement, where the enterprise has taken steps from the violations that made part of the investigation report. However, there is no guarantee that one investigation report encompasses all the violations, which may be encompassed by one guaranteed commitment, but never rectified by the commitment, so quoted by the enterprise. Although the CCI has the discretionary power under 48C to check on all the commitments/ settlements promised by the company, the procedure will not be completed within a small timeline. During the timeline that ranges from an order of commitment to a revocation under 48C, which would then reinitiate the investigation under Section 26, stretching the wait for further redressal. Thus, there is a clear gap because there is no feature under the newly amended 53N for redressal/damages during an investigation. Further, there is no obligation to list the infringement that occurred under orders passed in the positive, under 48A. Thus, if the settlement order does not include the right so infringed, it would be nearly impossible to bring in the provisions of 53N, as damages must amount out of an infringed statutory provision. Further, the draft Settlement Regulations, particularly reg 7 clearly demarcates that the settlement order will not amount “finding of contravention by the Commission against the Settlement Applicant”. This would then amount to having absolutely no mention of the right so infringed, which was settled through an applicable payment. Thus, it is not clear how a layman may appeal to the tribunal for damages out of a settlement order. Further, the only recourse may be reg 5 of the draft regulations, which may allow a layman to submit objections to the settlement order. However, it is not clear if the term any party under 5(1) would amount to any party in public, or any concerned party regarding the complaint under Section 26. Thus, this gap is