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Developments in the industrial segment of India post-Competition (Amendment) Bill 2022



Introduction

The development of competition law in India was quite notably a major development, as the CCI Competition Commission of India had operated optimally by approving the combinations being notified beforehand in reasonable timelines. Starting from conducting regulated inspections to passing some notable orders making international headlines to conducting repeated market studies. These anticipated amendments to the Competition Act 2002 were discussed with due importance across all spheres before finally going ahead. Thus, in this case, the CCI had an appreciable effect on the competition in India, where the CCI can issue notices to parties for determining the initiation of investigations by scrutinizing 2 combinations in detail.


Now coming to the point of the impact and the most possible effect this act leaves within the industries in India can be gradually understood as;

  • Digital Payments- In this case, it has been seen that the CCI issued an SCN to PayU India on its acquisition of IndiaIdeas.com Limited. But in return, it was disagreed by the CCI on the broad relevant market proposed by PayU India that submitted all the online payment services which were a part of the market. In a way, the CCI eventually concluded the fact that the combination did not raise any competitive concerns of the relevant markets for not initiating further investigations with remedies. However, this transaction was also called off due to several non-fulfillment of certain conditions, whereby this order of the CCI was a notable instance of remedies required by the CCI after the issuance of an SCN.

  • Media and Entertainment Industry- Another notice was filed by Culver Max Entertainment Private Limited and Zee Entertainment Enterprises Limited which were some of the leading operators of television channels and OTT video services in India. In a way, this combination also involved the amalgamation of the ZEE and BEEPL into Sony Entertainment.

However, taking the situation of these two major industries, it can also be noted that television advertising holds the highest rate of market penetration in India. As the amalgamated entity is the largest broadcasting house in India, which owns approximately about 92 television channels with a high amount of market shares in four major segments of languages. This amalgamated entity is also sought to have crossed the ability and incentives with increasing prices for all advertisers and viewers in various identified segments, where they will also able to charge higher prices and engage in differential pricing and behaviour with ‘Distribution Platform Operators.’


Thus, as a response to the SCN from the CCI, the parties have voluntarily looked towards offering to divest the ownership of the ZEE in three major channels to divest them in the next two largest competitors operating in the market segments. Also, this amalgamation has been accepted and approved by the CCI for conducting a Phase II investigation with subject to voluntary structural commitments.


Specifying the appropriation of the deposit appeals of law

This Bill in a way requires all the appellants to deposit about 25% of the amounts to be paid under an order passed by the CCI as a part of the manner specified under the National Company Law Appellate Tribunal. Till the final deposition of this amount, the final appeal of a person will not be considered valid by the NCLAT, where the question pertaining to the importance of the deposit stands with the persistence of the CCI’s orders.


Thus, under the latest Competition Act that was Amended in 2022, it was found that any appeals against orders passed by the CCI were filed with the NCLAT. At present, the NCLAT also shows any discretion for deciding the amount of the penalty that needs to be deposited while hearing of the appeal, which might decide a variety of factors like the case of the gravity of conduct, based on the size of the business. As in several instances, the NCLAT has also asked the appellant to deposit about 10% of the penalty that was imposed by the CCI as a part of the order. Thus, the imposition of the penalty was held in the final hearing of the case, whereby the appeals made to the Securities Appellate Tribunal involved no mandatory deposit requirements under the SEBI Act of 1992.


However, one of the major reasons involved in specifying the mandatory deposit of penalty was seen as a matter of discouraging frivolous appeals. Between 2011-12 and 2017-18, an amount of about 13,524 crores INR was imposed as a penalty by the CCI. Thus, according to the CCI, it was found that a low rate of recovery was also due to the several orders that were appealed before the NCLAT and the Supreme Court being challenged before the High Court. In such a way the appeals against the orders of the District Consumer Dispute Redressal Commission, the State Consumer Disputes Redressal Commission had filed a respective order after the appellate authorities ensured the deposit of 50% of the payable amount of such orders.


Sources referred

 

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