Introduction:In a significant development, the Indian government has officially notified Section 64B of the Competition Act, 2002, which comes into effect from October 26, 2023. This notification is in line with the amendments introduced through the Competition (Amendment) Act, 2023, which introduced new sections, 64A and 64B, to the Competition Act. This article delves into the details of this notification, the implications of Section 64B, and its potential impact on the competition landscape in India.
Notification Details: The Ministry of Corporate Affairs, through a notification dated October 26, 2023, has officially declared the commencement of Section 64B of the Competition Act, 2002. This notification is authorized by the powers conferred by sub-section (2) of section 1 of the Competition (Amendment) Act, 2023.
Section 64B Overview: Section 64B introduces provisions regarding the issuance of guidelines by the Competition Commission of India. These guidelines can pertain to various aspects of the Competition Act, its rules, and regulations. They can be initiated either in response to a request or at the Commission’s own discretion.
Non-Binding Nature: It’s essential to note that the guidelines issued under Section 64B(1) are not to be construed as determinations of factual or legal matters by the Commission, its members, or officers. They do not hold binding authority over the Commission, its members, or officers, ensuring flexibility in their application.
Guidelines on Penalties: Section 64B(3) specifically empowers the Commission to publish guidelines concerning the appropriate penalty amounts for contraventions of the provisions of the Competition Act. These guidelines are significant for maintaining consistency and transparency in penalty imposition.
Consideration of Guidelines: When imposing penalties under various sections of the Competition Act, including clause (b) of section 27, section 43A, or section 48, the Commission is mandated to consider the guidelines provided in Section 64B(3). In cases where there is a deviation from these guidelines, the Commission is required to provide reasons for such divergence.
Publication Requirements: The guidelines established under Section 64B(1) and Section 64B(3) are to be published in a form as prescribed by the relevant authorities. This ensures that the guidelines are accessible and transparent for all stakeholders in the competition landscape.
Conclusion:The government’s notification of Section 64B of the Competition Act, 2002, signifies a significant step in enhancing the regulatory framework for competition in India. The provision empowers the Competition Commission of India to issue guidelines that provide clarity and consistency in enforcing competition laws and determining penalties for contraventions.
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MINISTRY OF CORPORATE AFFAIRS
NOTIFICATION
New Delhi, the 26th October, 2023
S.O. 4672(E).—In exercise of the powers conferred by sub-section (2) of section 1 of the Competition (Amendment) Act, 2023 (9 of 2023), the Central Government hereby appoints the 26th October, 2023 as the date on which section 45, in so far as it relates to Section 64B and the entries relating thereto, of the said Act shall come into force.
[F. No. 05/4/2023-Comp-MCA]
INDER DEEP SINGH DHARIWAL, Jt. Secy.
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Extract of Section 64B as inserted vide Competition (Amendment) Act, 2023
64B. Commission to issue guidelines.
(1) The Commission may publish guidelines on the provisions of this Act or the rules and regulations made thereunder either on a request made by a person or on its own motion.
(2) Guidelines issued under sub-section (1) shall not be construed as determination of any question of fact or law by the Commission, its Members or officers and shall not be binding on the Commission, its Members or officers.
(3) Without prejudice to anything contained in sub-section (1), the Commission shall publish guidelines as to the appropriate amount of any penalty for any contravention of provision of this Act.
(4) While imposing penalty under clause (b) of section 27 or under section 43A or section 48 for any contravention of provision of this Act, the Commission shall consider the guidelines under sub-section (3) and provide reasons in case of any divergence from such guidelines.
(5) The guidelines under sub-sections (1) and (3) shall be published in such form as may be prescribed.”.
