The Ministry of Corporate Affairs released in the public domain the newly prepared draft of the Competition (Amendment) Bill, 2020 on 20th February, 2020 for public comments. The first look of the bill reveals the fact that it brings along with it the much needed clarity and various provisions for increasing transparency in the regime and improves the robustness and efficiency of the system.
Coming up of the Draft
The suggested amendments are a culmination of various processes that started way back in October 2018, when an independent committee called the Competition Law Review Committee (CLRC) was set up by the Ministry of Home Affairs, to examine the Competition Act, 2002 and the accompanying rules and regulations. Recognizing and in view of the need to review the changing regime in the wake of different business landscape as well as completion of a decade of the CCI’s (Competition Commission of India) enforcement and with the aim of preparing for the future challenges, the CLRC was formed. The CLRC dig deep into the Act for a detailed assessment of the Act, and in August 2019 submitted its report to the Ministry of Corporate Affairs in this regard. In the report submitted by the CLRC various recommendations for amendments of the substantive and procedural provisions of the Act were given.
- The Draft Bill includes almost 45 of the 50 recommendations given by the CLRC.
- It provides for changes in the regulatory structure of the CCI.
- Provides provisions for issuing of penalties and guidelines on issuance of penalty.
- The Draft Bill streamlines procedure for regulation of combinations.
- The amendment bill provides for new thresholds for merger control.
- The amendment bill expanded the definition of the term “cartel”.
Competition (Amendment) Bill, 2020
A quick glance at the Bill and any person from the field of Competition law would tell that the Draft Bill has made it a proud moment for the CLRC. From around the 50 recommendations submitted by the CLRC, around 45 recommendations have been accepted by the Ministry of Corporate Affairs and have been included in the Bill. Among all the changes that will be brought by the new bill, some of the most significant changes are mentioned below:
Change in the Regulatory Structure of the CCI:
The new Bill has provided for the constitution of a Governing Body. The Governing Body would be consisting of,
- The Chairperson of the CCI, and its six permanent members.
- The Secretary of the Department of Economic Affairs,
- Ministry of Finance or his nominee,
- Secretary of the Ministry of Corporate Affairs and his nominee,
- Four part-time members to be nominated by the Central Government.
The Governing Body would vested with the powers to make regulations, take measures to promote awareness and create a National Competition Policy, the Governing Board will exercise general superintendence, direction and management of the affairs of the CCI.
The new Bill has mandated the CCI to issue the much needed penalty guidelines. The new guidelines are expected to give recognition to principles such as turnover principle and lay down procedures for the determination of the percentage of the penalty and also procedure for application of aggravating and mitigating factors.
Streamlining Procedure for Regulation of the Combinations:
The Bill has provided for a large number of changes in regulation of combinations. Few of the most important changes include, reducing the time-limit for deemed approval from two hundred and ten days (210) days to one hundred and fifty days (150) days, make substantive changes. The Bill also seeks to provide statutory sanctity to various practices conducted by the CCI for inquiry into combinations. The Bill also provides statutory basis to de-minimis exemption or target based exemption; the newly introduced green channel of approval and certain sector specific exemptions granted by the CCI.
The above mentioned are some of the most significant changes that are brought in the new Bill. The Bill also provides for various other changes in the regime of settlements and commitments, the bill extended the protection provided to the holders of Intellectual Property Rights, it expanded the earlier definition of “cartel” and included in it buyer’s cartel as well, the bill also provided for new thresholds for merger control.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
1. Draft Competition (Amendment) Bill, 2020, 12th February, 2020 http://feedapp.mca.gov.in//pdf/Draft-Competition-Amendment-Bill-2020.pdf