Anti-Competitive Agreements Which Have Been Prohibited By The Competition Commission Of India

Under the law, horizontal agreements are classified in a special category and are subject to the unfavourable presumption of being anti-competitive. This is also called the “in itself” rule. This means that, where a horizontal agreement is concluded pursuant to Article 3(3) of the Law, such an agreement is considered to be anti-competitive and to appreciably affect competition1. In this context, CCI finds that any “reasonable condition” imposed for the protection of legal protection laws would not attract Section 3, but that the imposition of an “inappropriate condition” on ipR`s protection would be contrary to Section 3 of the Act. The ICC provides an illustrative list of practices/agreements that, although entered into to protect IpR, may violate Section 3 of the Act5. Such practices/agreements are the: A final topic to mention is that the Indian government is considering laws that would significantly increase the thresholds that trigger reporting obligations under the Competition Act. However, the proposed revisions would allow the government to set lower thresholds flexibly in areas it deems sensitive and that the ICC should monitor closely. This revision would allow the CCI to pass on “Brownfield” pharmaceutical investments (i.e. purchases by foreign companies of a share of an already existing Indian pharmaceutical company) which would otherwise fall under the new triggers of increased thresholds. The Leniency Notice has been a very successful undertaking, with several investigations and injunctions taken following leniency applications. In addition, the recent injunctions issued by the ICC in the context of the Leniency Notice highlight the factors used by the ICC to determine the level of the sentence, i.e. the stage of the leniency application, the standard of proof, etc. In 2018, there was a case of supply manipulation between two broadcasting companies, Globecast and Essel Shyam Communications Ltd (ESCL); The ICC found that the parties had infringed Article 3(3)(d) of the Competition Act by exchanging supply-related sensitive information for specific purposes of broadcasting various sporting events such as cricket, Formula 1 and hockey.

In particular, the ICC authorised a 100% reduction in the penalty for Globecast, on the basis of evidence that enabled the CCI to form a first opinion opinion on the existence of the cartel, including e-mail correspondence, which articulated in a concerted manner the submission of tenders, sensitive price information and a medico-legal relationship with mirror images of seized laptops and phones. While ESCL also provided additional information to the ICC in its leniency application, it received only a 30% reduction, as the ICC had already referred the case to the Director General at the time of receipt of its request for investigation. Vertical agreements exist between companies at different stages of the production chain, such as an agreement between the manufacturer and a distributor. The presumption rule does not apply to vertical agreements. Whether the vertical agreement caused AAEC is determined by the rule of reason. If the rule of reason is applied, the positive and negative effects of competition will be analysed. In order to determine whether an agreement is contrary to Article 3(4), in conjunction with Article 3(1) of the Law, the following five essential elements of Article 3(4) must be fulfilled: the CCI found that, by exclusive distribution agreements and agreements, Hyundai infringed the provisions of Article 3, paragraph 4(e), in conjunction with Article 3(1) of the Act by agreements, which led to the system of fixed resale prices. .

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