THE COMPETITION COMMISSION OF INDIA NOTIFICATION
New Delhi, the 6th March, 2024
The Competition Commission of India (Commitment) Regulations, 2024 (No.
03 of 2024)
No.
CCI/Reg-C.R./2024.—In exercise of the powers
conferred by section 64 read with section 48B of the Competition Act, 2002 (12
of 2003), the Competition Commission
of India hereby makes the following regulations to specify the procedure for
filing of commitment applications and for conducting the commitment
proceedings, and matters connected therewith or incidental thereto, namely: -
1.
Short title and commencement. -
(1) These regulations may be called the Competition Commission of India (Commitment) Regulations, 2024.
(2) They shall come into force on the date of their publication in the Official
Gazette.
2.
Definitions. –
(1) In these regulations, unless
the context otherwise
requires:
(a)
“Act” means the Competition Act, 2002 (12 of 2003);
(b)
“Commission” means the
Competition Commission of India
established under sub-section (1) of
section 7 of the Act;
(c)
“Director General” means
the Director General
as defined in clause (g) of section
2 of the Act;
(d)
“Commitment Applicant” means any enterprise, as defined in clause (h)
of section 2 of the Act, against whom any inquiry has been initiated under
sub-section (1) of section 26 of the Act for alleged contraventions of
sub-section (4) of section 3 or section 4 of the Act, and submits a Commitment
Application;
(e)
“Commitment Application” means an application submitted by a Commitment
Applicant to the Commission under these regulations offering commitments in
respect of proceedings initiated for the
alleged contraventions of sub-section (4) of section 3 or section 4 of the Act
stated in the order passed by the Commission under sub-section (1) of section
26 of the Act.
(2)
Words and expressions used but not defined in these regulations shall have the same
meanings as assigned to them in the Act or in the regulations framed
thereunder or in the Companies Act, 2013 (18 of 2013), as the case may be.
3.
Application for Commitment. -
(1)
A Commitment Applicant may make an application to
the Commission in writing, accompanied by such fee as
provided under sub-regulation (1) of regulation 8, containing the
information as specified below:
a)
name, legal status (company
or firm or LLP or trust,
etc.), registration number (if applicable), contact
details including complete registered address, principal business address (with
area code, city and country), mobile/ telephone number, email and website
address (if any) of the Commitment Applicant.
b)
name of the authorised representative(s) of the
Commitment Applicant and their contact details including complete business
address, telephone number and email.
c)
proof of payment
of fees to the Commission under regulation 8.
d)
details of the prima facie opinion of the Commission
recorded in the order passed under sub-section
(1) of section
26 of the Act in relation to the Commitment Applicant.
e)
full and true disclosure of facts in respect of the alleged
contraventions of the Act.
f)
details of the commitments offered including how the
same address the alleged contraventions, competition concerns and the manner of
implementation and monitoring thereof.
g)
whether the Commitment Applicant, has previously been found to have contravened any provision of the Act
or whether any proceeding against the Commitment Applicant is pending for any
alleged violation of the provisions of the
Act or whether the Commitment Applicant has in the past
made any settlement or commitment
application(s). If so, the details thereof.
h)
details of nature, gravity and impact of the alleged
contraventions, and the duration of the enterprise’s
involvement in the alleged contraventions.
i)
a summary, not containing any confidential
information, comprising of prima facie opinion
of the Commission expressed in the order issued under sub-section (1) of
section 26 of the Act along with details of competition concerns, alleged
contraventions, duly capturing commitments offered by the Commitment Applicant
and how they address the competition concerns.
j)
details of other competition authorities, fora or
courts, if any, which have examined or are currently examining the alleged
contraventions including those where the Commitment Applicant has filed
commitment and / or settlement applications.
k)
Undertakings and waivers
as per Schedule I.
l)
any other information that may assist the Commission
in determining the terms of the commitment having due regard to the factors
specified under regulation 7.
(1)
The Commitment Application under sub-regulation (1)
may be submitted at any time after an order under sub-section (1) of section 26
of the Act has been passed by the Commission but within the time prescribed
under sub-regulation (3) or prior to receipt by the party of the report of the
Director General under sub- section (4) of section 26 of the Act, whichever is
earlier.
(2)
A Commitment
Application shall be filed within 45 (forty five) days
from the receipt of the
order passed by the Commission under
sub-section (1) of section 26 of the Act.
Provided that the Commission
may entertain a Commitment Application after the period
specified above, if the Commitment Application is received
within a further period of 30 (thirty) days and the Commission is satisfied
that there had been sufficient cause for not filing the same within the
specified period after recording reasons for condoning such delay.
(3)
Where the Commitment Application is incomplete in
any respect or does not conform to the requirements of these regulations, the Commitment Applicant may be asked to
remove such defect(s) or furnish the required information including
document(s). The Commitment Applicant shall rectify such defects or furnish the
required information including document(s) within ten (10) working days of the
receipt of communication or such other period as may be specified by the
Commission, failing which the Commitment
Application may be treated as invalid.
(4)
A Commitment Application may be withdrawn by the
Commitment Applicant at any time prior to the passing of an order by the
Commission under regulation 4.
(5)
No Commitment Application shall be considered if any
amount due under the Act is liable for recovery from the Commitment Applicant.
2.
Consideration of proposal for Commitment. -
(1)
The Commitment Application complete in all respects
in terms of regulation 3 shall be placed for consideration before the
Commission in its ordinary meeting within 7 (seven) working days of receipt thereof.
(2)
If the
Commission is prima facie not satisfied with the commitments offered
by the Commitment Applicant,
it shall communicate to the Commitment Applicant the reasons for the same and call upon the Commitment
Applicant to furnish, within 15 (fifteen) working days of the
receipt of the said communication, revised Commitment Application.
(1)
When the Commitment Application complete in all
respects is placed for consideration before the Commission under sub-regulation
(1) above, the Commission may keep the inquiry against the Commitment Applicant
in abeyance till final decision on the Commitment Application or till such
time, as may be decided by the Commission.
(2)
While considering the commitments offered under the
Commitment Application, the Commission shall invite objections and suggestions
in terms of regulation 5.
(3)
After consideration of the nature, gravity and
impact of the alleged contraventions, the commitments offered by the Commitment Applicant and the comments,
objections, or suggestions received under regulation 5,
a)
the Commission may pass an order in terms of
sub-section (3) of section 48B of the Act agreeing to the commitments offered as contained
in the Commitment Application filed
under sub-regulation (1) of regulation 3 or the revised
Commitment Application filed under sub-regulation (2) above, as the case may
be, subject to such other terms relating to manner of implementation and
monitoring of commitments and close the proceedings against the Commitment
Applicant forthwith.
b)
if the Commission is of the opinion that the
Commitment Application filed under sub-regulation (1) of regulation 3 or the
revised Commitment Application filed under sub-regulation (2) above, as the
case may be, are not appropriate in the circumstances, it shall by order passed
in terms of sub- section (5) of section 48B of the Act, reject the Commitment
Application and proceed with its inquiry under section 26 of the Act.
c)
if the Commission is not satisfied with the
Commitment Application, it shall within 15 (fifteen) working days after the
expiry of period specified in regulation 5, communicate to the Commitment
Applicant the reasons for the same and call upon the Commitment Applicant to
furnish, within 30 (thirty) days of the receipt of the said communication,
revised Commitment Application.
d)
if the Commission after considering the revised
Commitment Application filed under clause (c) of this sub-regulation (5) agrees
with the same, it shall pass an order in terms of sub-section (3) of section
48B of the Act agreeing to the commitments offered subject to such other terms
relating to manner of implementation and monitoring of commitment and close the
proceedings against the Commitment Applicant forthwith.
e)
if the Commission after considering the revised
Commitment Application filed under clause (c) of this sub-regulation (5) is not
satisfied with the same, it shall by an order passed in terms of sub- section
(5) of section 48B of the Act, reject the revised Commitment Application and
proceed with its inquiry under section 26 of the Act.
(4)
In case the Commitment Applicant fails to submit the
revised Commitment Application within the time period specified in
sub-regulation (2) and clause (c) of sub-regulation (5) above or fails to
provide clarification, information, or data as sought under sub-regulation (8),
the Commission shall by an order passed in terms of sub-section (5) of section
48B of the Act reject the Commitment Application and proceed with its inquiry under section 26 of the Act.
(5)
The entire commitment proceedings shall be concluded
within 130 (one hundred and thirty) working days of the receipt of the
Commitment Application complete in all respect in terms of regulation 3, failing
which the inquiry under section 26 of the Act against the Commitment Applicant
shall stand resumed.
Provided that the Commission may extend
the said period of 130 (one hundred and thirty) working days by such further
period as may be specified, if deemed appropriate, for reasons to be recorded
in writing.
(6)
The Commission may seek clarification, information,
or data from the Commitment Applicant, as deemed appropriate, which shall be
provided by the Commitment Applicant within the time specified by the Commission.
(7)
Notwithstanding the above provisions, a Commitment
Application may also be rejected at any time on the following grounds:
(a)
Where the Commitment Applicant refuses to receive or
respond to the communications sent by the Commission.
(b)
Where the Commitment Applicant violates in any
manner or does not abide by the undertaking and waivers given as per
Schedule-I.
(1)
The Commission shall before passing an order rejecting a Commitment Application under clause (b) and
(e) of
sub-regulation (5), sub-regulation (6) and sub-regulation (9) above, grant the
Commitment Applicant an opportunity of being heard.
(2)
The rejection under
this regulation shall be communicated to the Commitment Applicant:
Provided that the Commitment Applicant shall continue to be bound by
undertakings and waivers given as per Schedule I.
2.
Invitation of objections and suggestions on proposal for commitment. -
(1)
While considering the commitments offered, the
Commission shall provide an opportunity to the party concerned, the Director
General, or any other party to submit their comments, objections, or
suggestions, if any, within 21 (twenty one) days. For the said purpose, the
Commission would share a summary, not containing any confidential information, comprising of prima facie
opinion of the Commission expressed in the order issued under
sub-section (1) of section 26 of the Act along with details of the competition
concerns, alleged contraventions, duly capturing commitments offered by the
Commitment Applicant, how they address the competition concerns and any other
detail as deemed fit.
Provided that the Commission may also invite public to submit comments,
objections and suggestions, if any, within 21 (twenty one) days, by publishing
the above-mentioned summary on its website.
(2) The comments,
objections and suggestions filed by the concerned parties
shall contain the following details:
a)
name and contact
details including address,
telephone number, email of the concerned party and
its authorised representative(s), if any.
b) statement of
comments, objections and suggestions duly authenticated by the authorised representative and
supported by relevant documents.
c)
a summary of the comments,
objections and suggestions not running into more than four pages.
d) any other information that may assist
the Commission in determining the terms of the commitment.
3.
Nature and effect of commitment order. -
(1) The order passed
by the Commission agreeing to the commitments offered shall not be construed as
a finding of contravention by the Commission against the Commitment Applicant.
(2)
Filing of the Commitment Application or issuance of
commitment order by the Commission shall have no bearing on the inquiry under section 26 of the Act in relation to
the alleged contraventions, in respect of the
other parties to the inquiry who are not part of the commitment proceedings.
(3) The commitment order shall be final and binding upon the Commitment Applicant.
4.
Assessment of the terms of the commitment. -
The Commission shall while considering the nature,
gravity and impact of the alleged contraventions and effectiveness of the
commitments offered, have due regard to all or any of the following factors,
including:
(a) the nature
of conduct, its type, duration
and extent of the alleged
contraventions;
(b) whether the commitment
terms address the identified competition concerns, alleged contraventions, and the same can be
implemented effectively and expeditiously besides being easy to monitor;
(c) whether the terms of commitment make the markets
more contestable;
(d) procedural efficiencies, self-executing terms and early correction of market distortions;
(e) whether the
Commitment Applicant, has previously been found to have contravened any
provision of the Act or any investigation
or inquiry is pending against the
Commitment Applicant in respect of any alleged violation of the provisions of
the Act or whether the Commitment Applicant has previously made any settlement
or commitment application(s);
(f)
whether the Commitment Applicant has already
modified its conduct and policies which have been found to be in prima facie
violation of the Act by the Commission or steps taken by the Commitment
Applicant to minimize future violations or lapses;
(g) any other factor,
as may be deemed appropriate by the Commission in the facts and circumstances
of the case.
5.
Fee under sub-section (1) of section
48B of the Act. -
(1)
Every application received under sub-section (1) of
section 48B of the Act by the Commission shall be accompanied with proof of
payment of non-refundable fees as under:
(a)
Rs. 2,50,000 (rupees two lakh fifty
thousand) only in case the Commitment Applicant has a total turnover of up to
Rs. 50,00,00,000 (rupees fifty crores) in India in the preceding financial
year; or
(b)
Rs. 10,00,000 (rupees ten lakh)
only in case the Commitment Applicant has a total turnover exceeding Rs. 50,00,00,000 (rupees fifty crores)
and up to Rs. 500,00,00,000 (rupees five hundred
crores) in India in the preceding financial year; or
(c)
Rs. 50,00,000 (rupees fifty lakh)
only in case the Commitment Applicant has a total turnover exceeding Rs. 500,00,00,000 (rupees five
hundred crores) in India in the preceding year.
(2)
The fee can be paid either by tendering demand draft
or pay order or banker’s cheque, payable in favour of Competition Commission of India (Competition
Fund), New Delhi or through Electronic Clearance Service (ECS) by
direct remittance to the Competition Commission of India (Competition Fund),
Account No. 1988002100187687 with “Punjab National Bank, Bhikaji Cama Place,
New Delhi- 110066”.
2.
Implementation and monitoring of commitment order.
–
Where the Commission is of the opinion that the
implementation of the commitments needs monitoring, it may appoint agencies to
oversee such implementation in terms of the Competition Commission of India
(General) Regulations, 2009 and on such terms and conditions as may be
specified by the Commission.
3.
Revocation of the Commitment Order. -
(1)
If a Commitment Applicant fails to comply with the
order passed by the Commission under section 48B of the Act or it comes to the
notice of the Commission that the Commitment Applicant has not made full and
true disclosure during the commitment proceedings or there has been a material
change in the facts, the order passed under section 48B of the Act shall stand
revoked and withdrawn.
Provided that before making an opinion in this regard, the Commission shall
give an opportunity to the Commitment Applicant to show-cause, within a period
of 15 working days from the date of receipt of the show-cause notice, as to why
the Commission should not form an opinion that the Commitment Applicant has
failed to comply with the order passed by the Commission under section 48B of
the Act or the Commitment Applicant has failed to make full and true disclosure
during the commitment proceedings or there has been a material change in the
facts, as the case may be.
(2)
Where the commitment order stands
revoked and withdrawn as per sub-regulation (1) above, the Commitment Applicant
shall be liable to pay legal costs incurred by the Commission, as may be determined by the Commission, subject to a
maximum of rupees one crore which shall be paid in terms of sub-regulation (2)
of regulation 8.
(3)
Such legal costs imposed upon a
Commitment Applicant shall be recoverable in the same manner under section 39
of the Act read with the Competition Commission of India (Manner of Recovery of
Monetary Penalty) Regulations, 2011, as has been prescribed for recovery of
penalty imposed under the Act.
(4)
Further, where the commitment order
stands revoked and withdrawn as per sub-regulation (1) above, the Commission
may also restore or initiate against the Commitment Applicant, inquiry or
investigation in respect of which the order under section 48B was passed.
4.
Power to use information. -
(1)
Where the Commission has revoked
and withdrawn its commitment order in terms of section 48C of the Act read with regulation 10, the
Commission and the Director General may rely upon the information and
document(s) submitted by the Commitment Applicant in the proceedings under the
Act.
(2)
Where a Commitment Application is rejected or
withdrawn, the Commission and the Director General may use the information
gathered from sources other than Commitment Applicant in the proceedings under
the Act.
(3)
The Commission may, subject to the
provisions of regulation 35 of the Competition Commission of India (General)
Regulations, 2009 read with section 57 of the Act, use the information
submitted by the Commitment Applicant against other parties to the inquiry who
are not part of the commitment proceedings.
(4)
The facts established against the
Commitment Applicant or admitted in any ongoing or concluded proceedings in
India or outside India, with respect to the same cause of action, under any
law, shall be deemed to be admitted by the Commitment Applicant in respect of
the proceedings proposed to be closed under these regulations.
5.
Partial commitments offered not to affect
inquiry in respect
of other alleged
contraventions. -
If the Commitment Application is made in respect of
some of the contraventions noted by the Commission in its order passed under
sub-section (1) of section 26 of the Act, the inquiry qua remaining contraventions mentioned therein shall continue.
1.
Request for Confidentiality. –
(1)
If any request for confidentiality
of information or document(s) is submitted during commitment proceedings, such
request may be filed as per the procedure laid down in the Competition
Commission of India (General) Regulations, 2009, as amended from time to time.
(2)
Such request for confidentiality
shall be duly considered in accordance with the provisions laid down in the
Competition Commission of India (General) Regulations, 2009, as amended from
time to time read with section 57 of the Act.
2.
Inspection and certified copies of documents. –
(1)
Notwithstanding anything contained
to the contrary in regulation 37 and regulation 50 of the Competition
Commission of India (General) Regulations, 2009, inspection and certified
copies of documents submitted during commitment proceedings may be granted only
to the Informant and the Commitment Applicant.
Provided that the inspection and certified copies of the confidential version
of such documents shall be granted as per provisions of regulation 35 of the
Competition Commission of India (General) Regulations, 2009.
(2)
Inspection and certified copies of comments received
under regulation 5 shall be allowed
only after expiry of the period of 21 (twenty-one) days mentioned therein.
3.
Powers to determine procedure in certain circumstances. –
In a situation not provided for in these regulations,
the Commission may, for reasons to be recorded in writing, determine the
procedure in a particular case.
4.
Power to remove difficulties. -
In the matter of implementation of these regulations, if any doubt
or difficulty arises, the Commission
shall have the powers to issue clarifications and specify procedures through
circulars or guidelines and the decision of the Commission thereon shall be
binding.
Schedule I Undertakings
and Waivers
I/We,............................... , the Commitment Applicant(s) herein, as a condition for making the enclosed application to
the Commission for examining and consideration of the application, hereby declare that I/we agree
and undertake that:
1.
The Commitment Applicant admits the
jurisdiction and right of the Competition Commission of India (the Commission)
to initiate proceedings in respect of the alleged contraventions under the
Competition Act, 2002.
2.
The Commission may enforce any
claims against the Commitment Applicant arising from or in relation to any
violation of the commitment order passed pursuant to this application.
3.
The Commitment Applicant waives its
right of taking any legal proceedings against the Commission concerning any of
the issues covered in the commitment order that may be passed.
4. The Commitment Applicant further waives
the following:
(a) the findings
of fact and conclusions of law;
(b) appeal or review before
the National Company
Law Appellate Tribunal
or other courts;
(c)
any plea of limitation or laches
for initiating or restoring of the proceedings, if the Commitment Applicant
violates the commitment order.