The Competition Act, 2002 [“Competition Act”]was enacted with the objective to ensure fair competition by prohibiting trade practices that have an appreciable adverse effect on competition [“AAEC”]in India. For this purpose, the Competition Commission of India [“CCI”]was established andtasked with the duty to: eliminate practices having an AAEC, promote and sustain competition, protect the interests of consumers, and ensure freedom of trade carried on by market participants, in India. The investigative wing of the CCI, i.e.,the Director General [“DG”],assists it in investigations into anti-competitive practices of enterprise(s). Any person aggrieved by the anti-competitive conduct of an enterprise can provide information to the CCI requesting investigation. If the CCI is of the prima facie view that an investigation is warranted, it passes an order under Section 26(1) of the Competition Act, directing the DG to conduct the investigation[“Prima Facie Order”]. A Prima FacieOrder sets out the facts and contraventions of the Competition Act triggering an investigation by the DG. Oftentimes, the authority of the DG is challenged when the enterprises under investigation are dissatisfied upon being the subject of investigation. Interestingly, considering the recent judicial precedent, as discussed later in this comment, the powers of the DG have been upheld and to a great extent, widened. From such precedent, it flows that thePrima FacieOrder permits the DG to rightfully bring within its investigation undiscovered facts, unnamed parties, and unidentified competition concerns. Further, with the Draft Competition (Amendment) Bill, 2020 [“Draft Bill”]in the offing, the broad powers of the DG are likely to be amped-up. In this comment, the authors seek to portray the current legal and jurisprudential position of the ambit of the DG’s powers of investigation.
Please click here to read the full article by Ela Bali and co-authored Aditi Khanna, published in Indian Competition Law Review Volume VI.
Aditi is a competition / antitrust lawyer, who recently completed her post-graduation.