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Patents Act, 1970 or Competition Act, 2002: SC to decide applicability on actions of patentee

Background

The Supreme Court (“SC”) issued a notice[i] on a special leave petition filed by the Competition Commission of India (“CCI”) on March 1, 2024, against a Division Bench order of the Delhi High Court (“Delhi HC”) passed on July 13, 2023. The impugned order dealt with four appeals and a writ petition filed by Telefonaktiebolaget LM Ericsson (“Ericsson”), CCI, and Monsanto Holdings (P.) Ltd. (“Monsanto”) against previous Delhi HC judgements in Ericsson AB v. CCI (March 30, 2016)[ii], Ericsson AB v. CCI (December 14, 2015)[iii], Monsanto Holdings (P) Ltd. v. CCI (May 20, 2020)[iv], and letters issued by the CCI against Ericsson on July 16, 2015, and August 8, 2015.Continue Reading Patents Act, 1970 or Competition Act, 2002: SC to decide applicability on actions of patentee

Time to Revisit Spectrum Caps and Market Shares

In the initial years of wireless telephony in India, radio spectrum was administratively allotted to licensees. However, following the recommendations of the National Telecom Policy, 2012, and the decision of the Apex Court in the case of Centre for Public Interest Litigation v. Union of India,[1] the Department of Telecommunications (DoT) de-bundled spectrum allotment from the grant of licenses, and adopted an auction-based price-discovery mechanism for spectrum allotment.

Scarce radio spectrum resources have typically been considered as bottleneck assets, and therefore auctions provide an effective means of price discovery, help maximise revenue for the Government, and ensure optimal allocation of spectrum resources. However, excessive reliance on bid markets risks overlooking potential market failures attributable to enterprises attempting to monopolise bottleneck assets such as spectrum.

Recognising the need to ensure that no one operator should be able to monopolise scarce spectrum resources to the detriment of its competitors and consumers, the DoT, in successive Notice Inviting Applications (NIAs) has prescribed ceilings for the amount of spectrum that can be held by any telecommunications operator in a given band within a Licensed Service Area (LSA), as well as a ceiling on the total amount of spectrum that can be held by an operator across all bands in an LSA. Presently, these stand at 50% of any given spectrum band in an LSA, and 25% of the overall spectrum available in such LSA across all bands. These restrictions have also been incorporated into the Mergers and Acquisitions Guidelines of 2014 (M&A Guidelines) as prescribed by the DoT.Continue Reading Time to Revisit Spectrum Caps and Market Shares

The Indian merger control regime is a suspensory one which means that, any acquisition, merger or amalgamation that is notifiable to the Competition Commission of India (CCI) may be consummated only after the CCI grants approval, or until a certain waiting period has lapsed.

Section 6(2) of the Competition Act (Act), provides that when an enterprise proposes to enter into a combination, it is required to give a notice to the CCI, disclosing the details of the proposed combination, within 30 days of executing the ‘trigger document’. Further, Section 6(2A) of the Act provides that no combination shall come into effect until 210 days have passed from the day on which the notice has been given or unless the CCI passes orders under Section 31 of the Act, whichever is earlier. In sum, the suspensory regime is an absolute one. Combinations cannot be consummated, in part or full, before either the CCI grants approval or until 210 days post the notification.
Continue Reading Part Consummation of M&A Transactions: The Rhetoric of Gun Jumping

In August of 2016, the Competition Commission of India (CCI) passed an order in the case of Builder’s Association of India (2016 Order) predominantly re-affirming its earlier order of June 2012 in the same matter (2012 Order).

By way of a brief background, the case originated from a complaint filed in 2010 by the Builders Association of India (BAI) against the Cement Manufacturers’ Association (CMA) and 11 Indian cement manufacturing companies[1] (collectively, the Opposite Parties). In June 2012, based on an inquiry conducted by it, the CCI imposed a penalty of INR 63.17 billion (approximately USD 933.68 million[2]) on the Opposite Parties. This penalty was imposed for using the platform provided by the CMA to fix cement prices as well as limit and control production and supply of cement in the market, thereby contravening the relevant provisions the Competition Act, 2002 (Act). This 2012 Order was challenged before the Competition Appellate Tribunal (COMPAT), primarily on grounds of due process and violations of principles of natural justice and was set aside on these grounds. The matter was remanded to the CCI for fresh adjudication. Consequently, the CCI re-heard the Opposite Parties and passed the 2016 Order.
Continue Reading The Curious Case of the Cement Cartel

The Office of the Director General (DG), being the investigative arm of the Competition Commission of India (CCI), has conducted two search and seizure operations thus far. The first of these, more popularly known as dawn raids, was on the offices of JCB India Limited (JCB India) on 22 September 2014. More recently, the DG carried out a dawn raid on the premises of Eveready Industries Limited (Eveready), a leading dry cell manufacturer.

Dawn raids such as these signify the resolve of the CCI to actively conduct intrusive operations to enforce the provisions of the Competition Act, 2002 (Competition Act). In light of such a pro-active approach, and given that the DG enjoys wide (and mostly untested) powers whilst conducting such operations, companies in India must be aware of what they should do in the course of a dawn raid to contain the consequences and fallout.
Continue Reading CCI Dawn Raids – How to Act and Contain Operations

On 31 August 2016, the Competition Commission of India (CCI) dismissed an information under Section 26(2) filed against M/s ANI Technologies Private Limited (Ola Cabs) in the case of Mr. Vilakshan Kr. Yadav and Ors v. M/s ANI Technologies Private Limited[1] alleging abuse of dominance, in contravention of Section 4 of the Competition Act, 2002 (Competition Act).

The information was filed with the CCI by a group of auto rickshaw and taxi drivers plying their trade in Delhi and the National Capital Region (NCR). The informants argued that the relevant product market should be defined as “paratransit services” comprising auto rickshaws, black-yellow taxis and city taxis given that all of these are used for point-to-point travel by passengers and, thus, compete within the same space. Further, according to the informants, the drivers for all these modes of transportation are drawn from the same pool. The informants asserted the relevant geographical market to be the NCR comprising Delhi and certain districts of three states namely, Haryana, Uttar Pradesh and Rajasthan. This was based on an agreement that was signed by the respective governments of these four states to issue permits for auto rickshaws and taxis providing unrestricted movement within the NCR.
Continue Reading “Smooth” Driving For Ola – CCI Closes Investigation Under 26(2)

We take a look at recent re-notification and revised merger control thresholds to the Competition Act, 2002, and how they will reduce regulatory hurdles for smaller transactions and facilitate ease of doing business in India.

The Competition Act, 2002 (Act), requires mandatory notification to and prior approval of the Competition Commission of India (CCI) for transactions wherecertain prescribed asset or turnover thresholds (Jurisdictional Thresholds) are exceeded. By way of a notification dated 4 March 2011 (2011 Notification), the Ministry of Corporate Affairs (MCA) enhanced the value of asset and turnover as provided in Section 5 of the Act by 50 per cent. In addition to the above, the MCA by way of notification on the same date (including a corrigendum dated 27 May 2011) also introduced a de minimis exemption in case of an acquisition. The said notifications contained a validity period of five years and were set to expire on 3 March 2016.Continue Reading Recent Changes to Merger Control