Introduction: The Competition Act, 2002 underwent significant changes with the enactment of the Competition (Amendment) Act, 2023, introducing Sections 48B and 48C to facilitate a commitment mechanism. This article delves into the implications, stakeholder responses, and the subsequent modifications in the Competition Commission of India (CCI) regulations in 2024.
Detailed Analysis:
1. The Introduction of Commitment Mechanism: Section 48B allows enterprises facing inquiries for alleged contraventions to offer commitments, aiming for swift market corrections.
2. Drafting the Commitment Regulations: The proposed regulations outlined the procedure, inviting feedback from various stakeholders.
3. Incorporating Stakeholder Feedback: CCI reviewed 39 stakeholder comments, leading to adjustments in the Commitment Regulations 2024.
4. Key Provisions of Commitment Regulations 2024: Highlighting the application process, rejection circumstances, commitment terms, and monitoring mechanisms.
5. Transparency Enhancements: Requiring disclosure of past violations by applicants aims to provide CCI with comprehensive insights for effective enforcement.
6. Addressing Stakeholder Concerns: Analysis of stakeholder suggestions on timeline extensions, procedural clarity, and fee reductions.
7. Ensuring Applicant Accountability: Imposing obligations on commitment applicants post-appeal success to maintain commitment orders’ integrity.
8. Extension of Commitment Proceedings Timeline: Balancing stakeholder concerns with regulatory efficiency by extending the timeframe to 130 working days.
9. Transitional Provisions and Fee Reductions: Deliberation on transitional provisions and fee adjustments to accommodate MSMEs and startups.
10. Unified Framework for Monitoring Agencies: Introducing amendments for a unified framework for engaging monitoring agencies, enhancing regulatory coherence.
11. Revision and Revocation Procedures: Detailing the process for commitment order revocation and addressing modification requests due to changing circumstances.
12. Confidentiality and Information Usage: Addressing stakeholder concerns regarding confidentiality and regulating the usage of applicant-provided information.
13. Clarity on Inspection and Document Access: Restricting access to submitted documents and providing clarity on inspection processes.
Conclusion: The evolution of the Competition Act through the Amendment Act and subsequent regulations reflects a commitment to enhancing competition enforcement while addressing stakeholder concerns. The 2024 regulations strive for procedural clarity, stakeholder engagement, and regulatory effectiveness, fostering a fair and competitive market environment.
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General Statement
Competition Commission of India (Commitment) Regulations, 2024
1. The Competition Act, 2002 (Act) was amended on April 11, 2023, vide the Competition (Amendment) Act, 2023 (Amendment Act). Among other things, the Amendment Act introduced Section 48B and 48C in the Act to create a commitment mechanism. Section 48B of the Act enables an enterprise against whom an inquiry under Section 26(1) of the Act is initiated for an alleged contravention of Section 3(4) or Section 4 of the Act, as the case may be, to offer commitments before the CCI. Whereas Section 48C provides for revocation of the commitment orders issued by the Commission and the consequences of the same. The intent of creating a procedure for commitment is driven by the need to ensure quicker market correction.
2. Accordingly, the draft Competition Commission of India (Commitment) Regulations, 2023 (Commitment Regulations 2023) were proposed to lay out the procedure to be followed during commitment proceedings. Commitment Regulations 2023 were placed on the website of CCI inviting written comments from the stakeholders from 23.08.2023 to 13.09.2023.
3. CCI received comments from 39 stakeholders within the stipulated period from various disciplines which included industry associations, legal fraternity, policy think-tanks, academia, CCI has carefully examined the comments received and in view of these comments, certain changes have been incorporated in the Commitment Regulations 2023. Accordingly, CCI has today notified the Competition Commission of India (Commitment) Regulations, 2024 (Commitment Regulations 2024).
4. In terms of Section 64A(b) of the Act, this general statement is being published to provide CCI’s response to the public comments.
5. The Commitment Regulations 2024 inter alia provide for the following:
(a) Form and contents of the application for commitment along with fee payable;
(b) Circumstances in which the commitment applications can be rejected by CCI;
(c) Period during which commitments may be offered;
(d) Manner in which CCI will invite objections and suggestions to the commitment terms;
(e) Nature and effect of the commitment order;
(f) Factors to be considered by CCI in assessing the commitment terms;
(g) Implementation and monitoring of the terms of the commitment order;
(h) Revocation of the commitment order and the consequences thereof.
6. Considering the global nature of matters before CCI, a requirement has been included in the Commitment Regulations 2024 (e., regulation 3(1)(j)) to the effect that the applicants need to disclose details of other competition authorities which have examined or are currently examining the alleged contraventions. This requirement aims to provide CCI with a comprehensive understanding of alleged violations, enabling a broader perspective on the nature and extent of the issues. Such transparency enhances the efficacy of enforcement actions.
7. Some stakeholders have highlighted that it is unclear how instances of past/on-going violation, required to be disclosed as part of the commitment application, would have any role in addressing competitive harms in an ongoing inquiry. The CCI is of the view that while market dynamics may evolve, the requirement to disclose past and ongoing violations in commitment applications will play a crucial role in antitrust enforcement, ensuring that CCI can make well-informed decisions and tailor the remedies effectively.
8. Stakeholders have also suggested that the proposed timeline of 45 days for submitting commitment applications is insufficient and may need to be extended. However, CCI is of the view that 45 days period as provided in regulation 3(3) of the Commitment Regulations 2024 is sufficient for the parties to evaluate as to whether to file a commitment application. Further, CCI can also extend this period by another 30 days on demonstration of sufficient cause. Therefore, the suggestion of the stakeholders has not been accepted.
9. Stakeholders have suggested that the period under regulation 4 for submitting a revised commitment application should be increased to 30 days. In this regard, it is noted that regulation 4(5)(c) requires an applicant to submit a revised commitment application within a period of 15 days post market testing of the commitment proposal. Based on the suggestions by the stakeholders and considering that an applicant needs to analyze the objections/suggestions received on the commitment proposal during market testing for the purpose of revising the commitment application, the period has been extended from 15 to 30 days. Accordingly, necessary changes have been made in regulation 4(5)(c) of the Commitment Regulations 2024.
10. Commitment Regulations 2023 provided that before rejecting a commitment application, CCI may grant an opportunity of being heard to the commitment applicant. In this regard, the stakeholders suggested that CCI should grant an unqualified right to be heard to the commitment applicant before rejecting such application. Considering that the rejection of an application could impact their substantive rights, regulation 4(10) of the Commitment Regulations 2024 now provides that CCI shall provide an opportunity of being heard before rejecting a commitment application.
11. Stakeholders have indicated that while the regulations specify that a commitment decision for one party won’t impact proceedings against others in the same case, it lacks clarity on the repercussions of a successful appeal against CCI’s final order (under Section 27) by a party not utilizing the commitment mechanism on the commitment applicant. In this regard, it was recommended that the final regulations explicitly bind the applicant to commitment orders passed by CCI, preventing them from benefiting from a successful appeal. To address this, regulation 3(1)(k) and Schedule I have been inserted in the Commitment Regulations 2024 which require the applicants to submit specific undertakings and waivers. It has been further provided that an applicant would continue to be bound by such waivers even if the commitment application has been rejected.
12. Stakeholders also highlighted that the overall timeframe of 90 days as provided by the Commitment Regulations 2023 for commitment proceedings may be insufficient. Considering various steps involved in commitment proceedings and timeframe prescribed for such steps, regulation 4(7) of the Commitment Regulations 2024 now provides that the entire commitment proceedings shall be concluded within 130 working days. CCI has retained powers to extend this period, if deemed appropriate, for reasons to be recorded in writing.
13. It was also highlighted that the timeline for completion of commitment proceedings should commence after a complete commitment application is submitted to CCI. Accordingly, necessary amendments have been made in regulation 4(7) of the Commitment Regulations 2024.
14. Stakeholders have sought transitional provisions to allow commitment applications in the ongoing cases which may otherwise miss the opportunity to avail the commitment procedure. CCI has examined the said request of the stakeholders and observes that transitional provisions would necessitate prescription of separate time limits for cases at different stages of investigation / inquiry process, which is not desirable. Further, extending the benefit of commitments to the cases where the DG’s investigation is in its final stages and the DG is close to submitting its report is not appropriate as CCI has already invested its resources in such cases.
15. Stakeholders also highlighted that fees for filing a commitment application may be too high for MSMEs and Start-ups. In view of the concerns expressed by the stakeholders, applicable fee has been reduced from (a) ₹ 5 lakh to ₹ 2.5 lakh in regulation 8(1)(a) e., in case the applicant has a total turnover of up to ₹ 50 crores in India; and (b) ₹ 15 lakh to ₹ 10 lakh in regulation 8(1)(b) i.e., in case the applicant has a total turnover exceeding ₹ 50 crores and up to ₹ 500 crores in India.
16. Stakeholders have highlighted few issues in respect of the appointment of third-party agencies to monitor implementation of commitment terms under regulation 9 of the Commitment Regulations 2023. In this regard, it is noted that the requirement of appointment of monitoring agencies is common to three different regulations commitments, settlements, and combination regulations. Therefore, it has been decided that a unified framework providing for engagement of a monitoring agency will be included in the CCI (General) Regulations, 2009. Accordingly, regulation 9 of the Commitment Regulations 2024 has been appropriately amended.
17. Regulation 10 of the Commitment Regulations 2023 provided for revocation of commitment orders in certain situations. Stakeholders have inter alia suggested that CCI should grant a right to be heard to the commitment applicant prior to such revocation. As recommended by the stakeholders, regulation 10 of the Commitment Regulations 2024 now prescribes the process to be followed for proceedings under section 48C of the Act including an opportunity to the applicant to present its case, determination of the ‘legal costs incurred’, recovery of such legal costs,
18. Further, in respect of such provisions related to revocation, stakeholders highlighted that the Commitment Regulations 2023 do not provide any opportunity for commitment applicants to seek modification of commitment order inter alia due to change in circumstances. In this regard, it may be noted that Section 48C of the Act provides that in case of material change in facts, the commitment order shall stand revoked and withdrawn. Therefore, CCI is not empowered to modify its orders in such cases.
19. In relation to regulation 11 of the Commitment Regulations 2023, the stakeholders highlighted that use of information provided by the commitment applicant despite withdrawal or rejection of the commitment application may disincentivise such applicants. In view of the concerns expressed by the stakeholders, the usage of information provided by the applicant has been restricted to cases where the commitment order has been revoked and withdrawn in terms of Section 48C of the Act. It has also been inter alia provided that where an application is rejected or withdrawn, CCI and the DG may use the information gathered from sources other than the applicant.
20. Stakeholders also highlighted that the Commitment Regulations 2023 do not cast an express obligation on CCI to maintain confidentiality nor provide a mechanism for a commitment applicant to request CCI to maintain confidentiality over the commitment application. In this regard, regulation 13 has now been inserted in the Commitment Regulations 2024 stating that confidentiality requests will be governed by the extant provisions of the CCI (General) Regulations and the Act dealing with confidentiality.
21. The stakeholders also highlighted certain issues relating to inspection and certified copies of documents submitted during commitment proceedings. To provide necessary clarity, regulation 14 has been inserted in the Commitment Regulations 2024 stating that inspection and certified copies of documents submitted during commitment proceedings may be granted only to the Informant and the commitment applicant. Further, access to these documents would not be available to any other party viz. third parties, other opposite parties who are not part of the commitment proceedings, etc. Furthermore, it has also been clarified that access to comments received under regulation 5 shall be allowed only after expiry of the 21 (twenty-one) days period mentioned therein.
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THE COMPETITION COMMISSION OF INDIA
New Delhi, the 6th March, 2024
The Competition Commission of India (Commitment) Regulations, 2024
Notification No. 03 of 2024 | Dated: 6th March, 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.
(2) 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 subsection (4) of section 26 of the Act, whichever is earlier.
(3) 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.
(4) 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.
(5) 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.
(6) No Commitment Application shall be considered if any amount due under the Act is liable for recovery from the Commitment Applicant.
4. 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.
(3) 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.
(4) While considering the commitments offered under the Commitment Application, the Commission shall invite objections and suggestions in terms of regulation 5.
(5) 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 subsection (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 subsection (5) of section 48B of the Act, reject the revised Commitment Application and proceed with its inquiry under section 26 of the Act.
(6) 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.
(7) 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.
(8) 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.
(9) 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.
(10) 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.
(11) 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.
5. 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.
6. 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.
7. 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.
8. 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”.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
(Signature of the Commitment Applicant with stamp and seal of the body corporate)
Before me.
Notary.
ANUPAMA ANAND, Secy.
[ADVT.-III/4/Exty./802/2023-24]
