Alerts & Updates 18th Mar 2024

CC (Settlement) Regulations, 2024 & the CCI (Commitment) Regulations, 2024

Authors

Ravisekhar Nair Partner | Bengaluru
Abhay Joshi Partner | New Delhi | Noida
Parthsarathi Jha Partner | New Delhi | Noida
Aayushi Sharma Principal Associate | Delhi NCR
Bhaavi Agrawal Associate | Delhi NCR
Pavan Kalyan Associate | Delhi NCR
Raagini Agarwal Associate | Delhi NCR

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  • I. Background

    On March 7, 2024, the CCI published the CCI (Settlement) Regulations, 2024 (Settlement Regulations) and the CCI (Commitment) Regulations, 2024 (Commitment Regulations) (together, Regulations). A day earlier, the Government notified Section 48A and Section 48B, which were introduced under the Competition Act, 2002 by the Competition (Amendment) Act, 2023 (Amendment Act), to come into force with effect from March 7, 2024.

    The Settlement Regulations and Commitment Regulations have been published after public consultation on the draft settlement and draft commitment regulations published by the CCI for comments in September 2023. Along with the Settlement Regulations and Commitment Regulations, the CCI also released statements (here and here) setting out the reasons for accepting or rejecting stakeholder comments. The statements and the Regulations are a welcome insight into the CCI’s consideration of the comments and underscores the importance of stakeholder consultations.

  • II. Overview of the Regulations
    • Who is eligible to apply for settlements or commitments?

    – Any party against whom the CCI has initiated an inquiry on alleged contraventions of Section 3(4) or Section 4 of the Act, can avail of the commitments mechanism provided the Director General (DG) has not issued its investigation report.

    – Any party against whom the DG in its investigation report finds contraventions of Section 3(4) and/ or Section 4 of the Act, can avail of the settlements mechanism.

    • When can a party file a settlement or commitment application?

    – A settlement application must be filed within 45 days of a party receiving the DG Report or its confidential version (if applicable). However, a settlement application may also be filed within a further period of 30 days (after the expiry of the initial 45-day period), if ‘sufficient cause’ can be shown for the delay in filing.

    – A commitment application must be filed within 45 days of a party receiving the CCI’s prima facie order or before receipt of the DG Report, whichever is earlier. A commitment may also be filed within a further period of 30 days (after expiry of the initial 45 day period), if ‘sufficient cause’ can be shown for the delay in filing.

    • What is required to be submitted under a settlement or a commitment application?

    – Under both a settlement and a commitment application, a party would have to furnish details including (i) complete details of the settlement or commitment applicant; (ii) details of the CCI’s prima facie opinion (in case of a commitment) or details of the CCI’s prima facie opinion and the DG’s findings (in case of a settlement); (iii) details of the commitment or settlement proposal; and (iv) details of any previous proceedings or commitments or settlements etc. A settlement proposal is required to address all the contraventions identified under the DG report. However, a party can offer a partial commitment on certain alleged contraventions identified in the CCI’s prima facie

    – Proof of payment of the settlement or commitment fee is also required to be submitted with the application for settlement or commitment.

    – Parties are also required to furnish an undertaking with certain waivers, along with the application for settlement or commitment.

    • Is there a fee for filing a commitment or a settlement application?

    – The non-refundable filing fee is based on the turnover of the applicant for the preceding financial year, and ranges between INR 2,50,000 and INR 50,00,000 in either case (i.e., a commitment or a settlement application).

    • What are the subsequent steps once a commitment or a settlement application has been filed with the CCI?

    –  Once filed and defects (if any) in the applications have been cleared by the party, the CCI will consider the application. The CCI can ask a party to file a revised settlement or commitment application, if it is not prima facie satisfied with the commitment or settlement proposal.

    – The CCI will then invite comments from the DG or any other third parties, on the commitment or settlement proposal. The CCI will then consider the settlement or commitment proposal along with the comments received. At this stage, the CCI can either accept or reject the settlement or commitment proposal or if it is not satisfied, can direct the party to file a revised settlement or commitment application, which will then either be accepted or rejected by the CCI.

    – Before the CCI passes an order accepting the settlement proposal, it will communicate the settlement amount to the party which is required to be accepted within 15 days of the CCI’s communication and then paid by the party within 30 days from the date of its acceptance.

    – In case of a rejection of the settlement or commitment proposal, the CCI will pass a rejection order and proceed with its inquiry in the matter.

    • What is the settlement amount? Can the settlement amount be negotiated with the CCI?

    – Once CCI accepts a settlement proposal, it will communicate the settlement amount to the applicant, calculated based on the penalty guidelines. There is no such amount that needs to be paid in case of commitments.

    – The settlement amount determined by the CCI cannot be negotiated. If a party does not accept the amount, the settlement process fails and the CCI will continue with its inquiry in the matter.

    • Can a party withdraw a settlement or commitment application?

    – Yes, a party can withdraw a settlement or commitment application at any stage of the process before the CCI passes an order accepting or rejecting the proposal.

    • Can the CCI revoke (and withdraw) its settlement or commitment order?

    – In case a party has not complied with the terms of a commitment or settlement order or if the CCI finds that a party has made false disclosures during the settlement process, the CCI can revoke (and withdraw) its commitment or settlement order and then restore its inquiry in the matter.

    – In such a case, the party would be liable for legal costs payable to the CCI, which can be up to INR 1 crore.

    • What are the tentative timelines for completion of the settlement or commitment process?

    – The settlement process is required to be completed in 180 working days and the commitment process is required to be completed in 130 days after the receipt of the applications, respectively. These timelines may be further extended if needed by the CCI.

    • Can an appeal be filed against a settlement or commitment order?

    – No, the CCI’s settlement or commitment order is final and binding. In the case of settlements, the settlement applicant might still be exposed to compensation applications if the settlement proposals are accepted by the CCI.

    • In case of an unsuccessful settlement or commitment process, can the CCI use the information provided by the settlement or commitment applicant?

    – The CCI will not use the information provided by the settlement or commitment applicant in case the proceedings fail due to (i) rejection of the settlement or commitment application; or (ii) withdrawal of the application. However, the CCI may still use the information provided by other third parties including objections and suggestions received to the settlement or commitment application.

    – In case of a revocation of the settlement or commitment order by the CCI, it may use the information provided by the applicant in the settlement or commitment application.

  • III. Key Implications
    S. No.

    Overview of Regulations

    Potential implications

    1.

    Timeline for submitting an application.

    • Settlement: Within 45 or (+30 if sufficient cause for delay is shown) days from date of receipt of confidential DG Report.
    • Commitment: Within 45 or (+30 if sufficient cause for delay is shown) days from date of receipt of CCI’s prima facie order.
    • The Regulations have provided a narrower time period, within the overall time period under the Act. Once a party receives the CCI’s prima facie order (in case of commitments) or once a party receives the DG’s report (in case of settlements), there would be a much shorter window in which commitment or settlement proposals can be submitted to the CCI.
    • While the Commitment Regulations provide that a commitment application may be filed within 45 days from receipt of the prima facie order of the CCI or before receipt of DG Report, whichever is earlier, for practical reasons, a commitment application will have to be filed within 45 days of receipt of the prima facie order as it is unlikely that a DG Report would be received by the applicant within 45 days of the CCI’s prima facie order.
    • Parties to pending inquiries where the 45 (+30 day if sufficient cause for delay is shown) day period has already lapsed will most likely not be able to avail the benefit of these mechanisms.
    2. Partial settlements or commitments.

    • A settlement application would only be considered by the CCI if it addresses all contraventions identified in the DG report.
    • A commitment application can be filed with respect to only some of the concerns identified in the CCI’s prima facie order.
    • In cases where parties believe there is likely to be a better outcome in defending some of the allegations through the CCI’s inquiry process, requiring parties to settle all contraventions identified in the DG Report might be a disincentive. This might impact the overall uptake of the settlement mechanism.

     

    3. Withdrawal of a settlement or a commitment application. A settlement or a commitment application may be withdrawn by the settlement or commitment applicant any time before the CCI passes the settlement or commitment order.

     

    • Parties have the flexibility to withdraw applications which gives them greater flexibility in deciding their defence strategy. There is a lesser disincentive in case of a withdrawal, as the CCI would not use the information submitted in the application after withdrawal and will only use information submitted by third parties for its inquiry.
    4. Condition on submitting a settlement or a commitment application. The Regulations state that if any amount is due under the Act from the settlement or commitment applicant, then the settlement or commitment application filed by such an applicant shall not be considered by the CCI.
    • If the payment of penalty has been stayed by the National Company Laws Appellate Tribunal (NCLAT) in any matter, it would be fair to argue that the penalty amount is “due” or “liable for recovery” until the stay is vacated. Such parties arguably ought to be eligible to avail of settlement and commitment mechanisms in other on-going cases.
    5. Rejection of a settlement or a commitment application. The CCI can reject a settlement or commitment application, after providing an opportunity of hearing, if:

    • The applicant fails to submit a revised settlement or a revised commitment application, as the case may be, or provide clarifications etc. to the CCI within the prescribed timelines;
    • The applicant refuses to receive or respond to the communications sent by the CCI or violates the undertakings and waivers submitted; or
    • The CCI is not satisfied with the settlement or commitment proposals offered by the applicant.

    Additionally, a settlement application shall also be rejected if the settlement applicant fails to communicate its acceptance of the settlement amount or to pay the settlement amount within the prescribed timelines. A hearing shall not be granted in case a settlement application is rejected for failure to communicate acceptance of the settlement amount or pay the same within the prescribed timelines.

    • The settlement or commitment applicant must necessarily waive off the right to initiate any legal proceedings including appeal against the CCI’s settlement or commitment order and such waivers shall extend even after the CCI rejects the settlement or commitment proposals.
    • Therefore, in cases where the CCI passes an order rejecting a settlement or commitment application and proceeds with its inquiry, parties will not have the opportunity to challenge any finding of contravention against them if the CCI finds them liable.
    • Given the absence of clarity on how these waivers will operate in such scenarios, parties may be disincentivized from availing these mechanisms.

     

    6. ‘Invalid’ settlement or a commitment application. If the settlement or the commitment applicant, as the case may be, fails to clear the defects to the application communicated by the CCI within 10 days of receipt of such communication, such settlement/ commitment application shall be treated as “invalid” by the CCI. The Regulations do not clarify if the settlement or commitment applicant will have the opportunity to submit a fresh settlement or commitment application in case the first application is ‘invalid’ due to failure to clear defects. However, there is no express bar on the settlement or commitment applicant to file a fresh application if they are not time barred from filing an application.
    7. Deemed ‘admission’ of facts established against settlement or commitment applicant in proceedings on the same cause of action inside as well as outside India. The settlement or commitment applicant shall also be required to provide details of investigations in India and outside India with the same cause of action as part of their settlement or commitment application. However, any such facts that have been established or admitted by the settlement or commitment applicant under such ongoing or concluded proceedings with the same cause of action shall be deemed to be “admitted” against the applicant in respect of the settlement or commitment proceedings.
    • The Regulations cast a wide net on the scope of facts that would be considered as ‘deemed’ to be admitted in the settlement or commitment proceedings, including other India and outside India proceedings.
    • The undertaking furnished by a party requires waiver of these findings of fact. In case settlement or commitment proceedings are unsuccessful, the party will continue to be bound by the ‘findings of facts’ that are deemed to be admitted and would make it difficult for the parties to defend themselves against such facts, if the CCI proceeds with the inquiry.
    8. Revocation and withdrawal of a settlement or a commitment order. The Regulations provide that the settlement or commitment order shall stand revoked if:

    • Applicant fails to comply with the settlement or commitment order;
    • Applicant has not made true and full disclosures; or
    • Facts have materially changed.

    Before revoking a settlement or commitment order, the CCI shall grant an opportunity to show cause to the settlement or commitment applicant.

    • The Regulations do not expressly clarify if undertaking and waivers submitted along with the settlement or commitment application shall continue to bind the applicant beyond such revocation. Whereas, in case of a rejection of a settlement or commitment application (the threshold for which is lower than the threshold for revocation) you will be expressly bound by your undertakings and waivers beyond the rejection. Logically speaking, based on the theme of the Regulations, this should have been reverse i.e., waivers continue to apply in cases of revocation and withdrawal of settlement or commitment order by the CCI and waiver cease to apply if settlement or commitment application is rejected by the CCI.
    9. Determination of settlement amount. The Settlement Regulations provide that the range of the settlement amount shall be guided by the Penalty Guidelines, under which the ‘base penalty amount’ can be 30% of the relevant turnover and the penalty determined by the CCI can extend up to 10% of the global turnover. Also, only a flat 15% discount shall be allowed on such settlement amount as determined.

     

    • Under the Amended Act, the penalty can extend up to a maximum of 10% of the overall global turnover. Considering that there’s a possibility of the settlement proceedings failing, parties would weigh the pros and cons before deciding to opt for settlement.
    • Considering the potential maximum penalty, a maximum discount of only 15% on such penalty might not act as a lucrative incentive for parties to consider settling proceedings with the CCI.
  • IV. Conclusion

    Operationalization of the settlements and commitments mechanisms is a welcome step that will hopefully go a long way in reducing litigation and ensuring quicker market corrections. However, the efficacy of these newly introduced mechanisms is yet to be tested and it is certainly left to be seen if the CCI’s decisional practice sheds some much needed clarity on ambiguities on the broad scope of undertakings and waivers, ‘deemed’ admission of facts, and use of information. Additional clarity on these Regulations would provide a much-needed boost to the efficacy of these mechanisms.

    We trust you will find this an interesting read. For any queries or comments on this update, please feel free to contact us at insights@elp-in.com or write to our authors:

    Ravisekhar Nair, Partner, Email – ravisekharnair@elp-in.com

    Parthsarathi Jha, Partner, Email – parthjha@elp-in.com

    Abhay Joshi, Partner, Email – abhayjoshi@elp-in.com

    Aayushi Sharma, Principal Associate, Email – aayushisharma@elp-in.com

    Bhaavi Agrawal, Associate, Email – bhaaviagrawal@elp-in.com

    Pavan Kalyan, Associate, Email -pavankalyan@elp-in.com

    Raagini Agarwal, Associate, Email – raaginiagarwal@elp-in.com

Disclaimer: The information contained in this document is intended for informational purposes only and does not constitute legal opinion or advice. This document is not intended to address the circumstances of any individual or corporate body. Readers should not act on the information provided herein without appropriate professional advice after a thorough examination of the facts and circumstances of a situation. There can be no assurance that the judicial/quasi-judicial authorities may not take a position contrary to the views mentioned herein.