Thursday, December 17, 2015

Competition Law: Analysis of the COMPAT Order in Surendra Prasad v. CCI

[The following guest post is contributed by Sarthak Raizada and Kartikey Kulshreshtha, who are 4th year students at Dr. Ram Manohar Lohiya National Law University, Lucknow.]

Introduction

The Competition Act, 2002 (the “Act”), while still in the early stages of its development in India, has witnessed immense litigation. The Competition Commission of India (“CCI”) has adjudicated and delivered several landmark verdicts, laid down normative standards, effectively discharged its mandate to promote competition. However, the lack of coherence and subjective reasoning in some of its decisions has plagued and paralyzed the standards along which an enterprise may be required to align his conduct. Such practices have sparked debates related to the interpretation of the Act among competition economists and lawyers. Moreover, the CCI as well the Competition Appellate Tribunal (“COMPAT”) have passed orders in disregard of certain fundamental principles under law. It is in this light that this post seeks to comment upon a ruling of COMPAT in Surendra Prasad v. Competition Commission of India delivered in September which deals with important aspects as to the interpretation of the Act and duties of the CCI as a quasi-judicial body.  

Background to the Dispute

A notice for tender was issued by the Maharashtra State Electricity Board (“MAHAGENCO”) for coal liasoning, quality and quantity supervision. In pursuance of the tender notice, M/s B.S.N. Joshi & Sons Ltd. (“BSN”) and three other players submitted their tenders. The tender of the BSN was challenged before the Bombay High Court by one of the tenderers alleging that it failed to fulfill certain essential conditions. The writ petition was allowed by the High Court quashing the award of the contract to BSN. The said judgment of the High Court was challenged before the Supreme Court. Therein, the Court directed MAHAGENCO to reconsider the matter afresh by providing another opportunity to BSN. In a striking observation, the Court further said that the three players apart from BSN had engaged in cartel like behavior. Despite this order of the Supreme Court directing MAHAGENCO to consider the matter afresh, MAHAGENCO did not consider its application for tender. Thereafter, BSN filed a contempt petition before the Supreme Court alleging willful disobedience to the order of the Court. While disposing off the contempt petition, the Court made critical remarks against MAHAGENCO for encouraging cartel like behavior.

Consequently, a contract of one year was granted to BSN as directed by the Supreme Court. However, the contract was terminated prematurely on grounds of unsatisfactory performance.

Factual Matrix of the Case

The informant filed information under section 19(1) of the Act alleging violation of section 3 and 4 by the opposite parties. It was averred that the contractors had formed a cartel for bid-rigging and have geographically divided the area of contracts constituting a violation of section 3. It was further alleged that MAHAGENCO had facilitated the formation of cartel between the contractors. In support of the allegation, it relied upon the observation of the Supreme Court in the contempt petition filed against MAHAGENCO. The informant also alleged that the conduct of MAHAGENCO and other contractors results in denial of market access to new players under section 4 of the Act. After a perusal of the arguments advanced, the CCI rejected these allegations observing that the CCI does not have jurisdiction to inquire into allegations of favoritism and corruption.

The order of the CCI was appealed before COMPAT. One of the contentions raised before COMPAT dealt with the locus standi of the informant to file the information. This contention of the respondents was repelled by COMPAT on a plain reading of the statute. It proceeded to set aside the order of the CCI ordering the Director General (“DG”) to make an investigation into the matter and thereafter submit a report to the Commission. While recording this observation, COMPAT relied upon the remarks of Supreme Court in the Civil Appeal and the Contempt Petition pertaining to cartel-like conduct, discussed above. It further observed that the DG shall not procced on the premise that MAHAGENCO is a part of the cartel.

Issues For Consideration

The order of COMPAT raises several important issues as to the interpretation of the Competition Act. The first question that arises for consideration is the power of COMPAT to make a direction to the DG to make an investigation under section 26(1) of the Act. The second question that requires consideration is the locus of the informant and his bona-fides to file information before the Commission under section 19(1) of the Act. Third, the question of discharging MAHAGENCO also prompts the question of cartel facilitator liability in India, in view of the recent ruling of the CJEU in AC-Treuhand AG v. European Commission.[1] Lastly, this post also attempts to question the legality of the observation made by COMPAT to hold “that the Commission is judicially subordinate to the Supreme Court and is bound by the verdict of the highest court in the country”. It also analyzes the nature and character of the proceedings before the Supreme Court vis-à-vis the proceedings before the CCI. This is to establish that the observation does not operate as a rule of binding precedent on the CCI.

Analysis of the COMPAT Order

The order of COMPAT made a direction to the DG to investigate into the matter and submit a report to the CCI. Whilst it may be true that the statutory authority to pass a direction is vested in the CCI by virtue of section 26(1), to assume that no such power is available to COMPAT is to deprive it of necessary powers inherently vested in it. Critically analyzing the judgment, a few authors have argued that it is incumbent upon COMPAT to make an order of remand to the CCI while reversing an order made under section 26(2) of the Act. Such an argument is strictly positivistic and is therefore, liable to be rejected.

Section 53B (3) of the Act provides:

On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against.

It is a fundamental principle of law that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary for their execution. A remand by an appellate court is usually made when the record before it is in such shape that the appellate court cannot in justice determine what final judgment should be rendered and the power to do so cannot but be an essential requisite of the very jurisdiction to entertain the appeal. It is an old maxim of the law that to whomsoever a jurisdiction is given, those things also are supposed to be granted without which the jurisdiction cannot be exercised: cui jurisdictio data est, ea quo que concessa cssee videntur, sine quibus jurisdictio explicari non potest. Therefore, on a plain reading of section 53B(3), it may well be argued that the expression ‘as it thinks fit’ confers a jurisdiction of widest amplitude on COMPAT. Furthermore, the power to set aside the direction, order or decision appealed against may include the power to remand the matter, as an order of remand will necessarily set aside the order. Both these portions necessarily imply that COMPAT has the power to set aside the decision which is under appeal before it and remand the matter to the CCI for fresh consideration. Hence, the power to remand is an inherent power vested in COMPAT and is not a power which can be disputed. Therefore, the question which requires consideration is not whether such a power is available to COMPAT, but whether an order of remand was necessary and proper in the present dispute if the essential requisites to entertain the appeal were not fulfilled.

This takes us back to the provisions of section 26 of the Act. Under that provision, the CCI has the power to issue directions or pass orders as required by various sub-sections. Section 53A provides for an appeal to orders made under section 26. Subsection (1) to section 26 requires formation of a prima facie opinion by the CCI to direct the DG to make an investigation into the matter. The formation of a prima facie opinion does not require the CCI to record detailed reasons. However, it is incumbent upon the CCI to express in no uncertain terms that it is of the view that prima facie case exists calling for an investigation to be made into the matter by DG.[2] While forming such an opinion, the CCI is required to consider and pass a reference to the information furnished to the CCI. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the CCI under the various provisions of the Act.[3] Therefore, a natural query that arises in the dispute under discussion is whether there was sufficient information available before the CCI to take a view that prima facie case exists. As stated in the minority order passed under section 26(2) by Justice (Retd.) S. N. Dhingra, the conduct of the contractors and MAHAGENCO after the termination of contract with BSN is reflective of anti-competitive conduct. To this effect, he elaborately analyzed and discussed their conduct for the relevant period under consideration, which in authors’ view, constitute sufficient evidence to form a prima facie opinion. Therefore, the majority order passed by the CCI deeming such allegations as those of favoritism and corruption, lying outside the purview of its jurisdiction, is unsustainable and unwarranted under law.

The second question which formed the subject-matter of COMPAT’s ruling was the locus standi of the informant to file the information.  In Appeal before COMPAT, the respondent challenged the locus of the appellant-informant on the ground that he is espousing the cause of BSN since he had been representing him in several other litigation. While rightly rejecting this contention on a plain reading of the statute, COMPAT observed that there is nothing in the language of section 19(1)(a) to suggest that any person filing such information is required to possess any qualification or prescribe any condition which is required to be fulfilled. This is evidently clear from a plain reading of section 19(1)(a) which provides for the following two conditions:

(a) The receipt of such information in such manner and accompanied by such fee as may be determined by regulations; and

(b) Such information should be filed by any person, consumer or their association or trade association.

While the procedure to file such information is prescribed by the CCI (General) Regulations, 2009, they do not provide for any fee or any method for filing such information. Moreover, the manner of filing information is procedural in nature and therefore cannot subdue the substance of the information.[4] Therefore, there is no bar to filing any information under the Act, provided the conditions mentioned above are satisfied.

With regard to condition (b), COMPAT observed that the informant is also a consumer within the meaning of the Act. In any case, it is submitted that the informant would have fulfilled the condition as he is a person within the meaning of the Act.

The third question analyzed in this post is based on a rather novel interpretation of section 3 liability. This interpretation of the statute is founded on the principle laid down by the Court of Justice in AC-Treuhand AG v. European Commission. It observed that article 81 of the European Community (EC) Treaty does not only concern undertakings which are active on the relevant or related markets affected by the restriction of competition. It affirmed the ruling of the General Court that passive participation in a cartel maybe sufficient to constitute a liability under article 81(1). Relying on the objective of article 81 to prevent distortion of competition in the common market, it held AC-Treuhand liable on the ground that the very purpose of providing services to the members of the cartel was in pursuance of attaining anti-competitive objectives.

This interpretation adopted by the Court of Justice of the European Union is relevant in view of the strikingly interesting observation of COMPAT as follows:

 However, it is made clear that while making investigation, the Director General shall not proceed on the premise that Respondent No. 2 was a part of the cartel.

This observation of COMPAT triggers the debate that whether cartel facilitators be held for an infringement under section 3(3) of the Act. While allegations of facilitating the cartel against MAHAGENCO were raised before the CCI as well as COMPAT, the two forums seem to have either rejected the allegation or absolved MAHAGENCO from such liability without stating any reasons whatsoever. Hence, the impact and legal implications of such an approach are yet to be seen while the Indian competition authorities strive and aim to bring Indian law in consonance with the law propounded by EU institutions.

Lastly, the post seeks to critically examine the statement recorded by COMPAT pertaining to the binding value of the observation made by the Supreme Court in the Civil Appeal and Contempt Petition. Hence, it is necessary to discuss the law laid down with respect to the doctrine of precedents under article 141 of the Constitution.

It is a well-established principle that the “law declared” under article 141 is a binding precedent. A finding on facts or any question of law which was not required to be raised in a particular case cannot be treated as a binding precedent. In other words, particular words or sentences made or findings of fact recorded by the court lacking any independent analysis or examination of its own cannot fall within the scope of the expression “law declared”.

In the present dispute, the observations made by the Supreme Court in the Civil Appeal and the Contempt Petition pertaining to the act of cartelization by the contractors cannot be regarded as a binding. Primarily, the observation is merely based on the statements recorded by senior functionaries of MAHAGENCO. Furthermore, the Court did not provide any independent analysis of cartel-like conduct on its own to substantiate the observation. This is further evidenced by the failure of the Supreme Court to record any reasons for the same. Hence, the order of COMPAT rebuking the CCI for breach of judicial discipline in disregarding the findings of the Supreme Court is unwarranted and unsustainable under law. 

It is also pertinent to note that the question regarding the formation of cartel between the contractors did not require any determination in the proceedings before the Supreme Court. The proceedings therein only dealt with the aspect of legitimate expectation of BSN to be considered for empanelment of coal liasoning while the proceedings before the CCI dealt with the aspect of anti-competitive practices adopted by the contractors and MAHAGENCO. The relief sought before the Supreme Court involved reconsideration for public procurement through a competitive bidding process whereas the adjudicatory process before the CCI involves imposition of penalties and directions to end the infringing conduct/agreement.

Keeping in mind this fundamental distinction, we argue that the order of COMPAT has lost sight of the true scope and import of article 141 of the Constitution.

- Sarthak Raizada & Kartikey Kulshreshtha



[1] Case C194/14 P AC Treuhand AG v Commission [27] not yet reported.
[2] Nissan Motors India Private Limited v Competition Commission of India Writ Petition No 26488/2013 & 31808-09/2013.
[3] Ibid.
[4] Hyundai Motor India Limited v Competition Commission of India WP No 31808-09/2012.

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