Regulation

1.     What laws provide for a leniency programme and which regulatory authority administers it? Is there any published guidance?

Applicable laws and guidance Under the Indian Competition Act 2002 (Competition Act), any agreement between competitors is prohibited if it causes an appreciable adverse effect on competition (AAEC) within the relevant market in India (section 3(1) and section 3(3), Competition Act).

Section 46 of the Competition Act read with the Competition Commission of India (Lesser Penalty) Regulations 2009 (as amended) (Lesser Penalty Regulations) (found at https://www.cci.gov.in/sites/default/files/regulation_pdf/regu_lesser.pdf) codifies and governs the law on leniency in relation to cartel investigations in India. The Competition Commission of India (CCI) can impose a lesser penalty on any member of a cartel if the CCI is satisfied that the member has made a full, true and vital disclosure in respect of its cartel activities.

The procedural aspects of the law on leniency in relation to cartel investigations in India are provided under the Lesser Penalty Regulations. Briefly, the Lesser Penalty Regulations set out the:

•       Eligibility conditions for a leniency application.
•       Sliding scale of leniency from administrative penalties.
•       Procedure for obtaining a marker status.
•       Contents of a leniency application.
•       Confidentiality related provisions.

Regulatory authority

The CCI administers and enforces the leniency programme (www.cci.gov.in/).

Scope of application

2.     What infringements of competition law does the leniency programme cover?

The leniency programme covers infringements which:

•       Directly or indirectly determine purchase or sale prices.

•       Limit or control production, supply, markets, technical development, investment or provision of services.

•       Share the market or source of production or provision of services by allocation of geographical area of market, type of goods or services or number of customers in the market or any other similar way.

•       Directly or indirectly bid-rig (collusive tendering).

These types of agreements result in significant penalties.

The leniency programme is available to enterprises and/or individuals that disclose to the CCI their role in a cartel and co-operate with subsequent investigations.

There is no criminal liability for cartel conduct in India. The leniency regime only extends to the administrative liability imposed on cartel members.
The CCI amended the Lesser Penalty Regulations in August 2017 (the amendment can be found at https://www.cci.gov.in/sites/default/files/whats_newdocument/178210.pdf) to strengthen and streamline its leniency programme by attracting better-quality evidence through leniency applications and ensuring that it expends fewer resources in reviewing applications.

The amendment:

Expanded the scope of the Lesser Penalty Regulations. The amendment allows individual whistleblowers to approach the CCI with evidence on collusion. It introduced an additional requirement for enterprises applying for leniency to also submit details of individuals who have been involved in a cartel on behalf of the applicant enterprises. Therefore, while filing a leniency application, the applicant enterprises can seek immunity for their employees and former employees who were involved in a cartel.

Abolished the earlier cap on the number of leniency applicants who could benefit from the leniency programme. The amendment now expressly allows the CCI to grant immunity to more than three applicants. Subsequent applicants will be eligible for a penalty waiver of up to 30%, provided they assist in giving “significant added value” to the evidence already in the possession of the CCI or the Director General (DG) (the investigative arm of the CCI), (this also applies to the second applicant).

Introduced significant changes to the provisions on confidentiality. The amendment allows the DG to disclose information under the Lesser Penalty Regulations to other parties for the purposes of the investigation if it deems necessary. The aim of this is to ensure that the parties against whom a negative finding may be made are afforded a fair opportunity to controvert evidence, and to allow the DG to test this evidence (or collect further evidence) by placing it before the other parties. Previously, the identity of an applicant seeking immunity and the evidence submitted could not to be disclosed by the DG or the CCI, unless the disclosure was required by law or was consented to by the applicant, or the information was already publicised by the applicant. Now, however, if the applicant does not consent to the disclosure, the DG must :

•       record its reasoning for disclosure in writing; and

•       seek the approval of the CCI.

Allows for file inspections by parties to information submitted by applicants. The amendment extends the provisions of the General Regulations relating to the inspection of case files to the information submitted by the applicants under the Lesser Penalty Regulations. Accordingly, after the CCI shares the DG’s report with the parties concerned, the “non-confidential” version of the report becomes available for inspection by the parties.

Recent cases and trends

3.     What notable recent cases have applied the leniency programme?

CCI decisions on cartels

There have only been five cases decided under the leniency provisions of the Competition Act to date. The key observations from these cases are as follows:

•       Brushless DC Fans (Case No. 03 of 2014). This was the first leniency decision by the CCI. A DG, investigation was suo moto (on its own motion) directed by the CCI, based on information received from the Central Bureau of Investigation, an organisation tasked with investigating economic crimes more generally. The report suggested cartelisation between the manufacturers and the suppliers of brushless fans, in relation to tenders floated by the Indian Railways and Bharat Earth Movers Limited for the supply of brushless fans and other electrical items. During the DG investigation, one of the parties applied for leniency. In its final decision, the CCI acknowledged that the disclosures made by the applicant added significant value to the determination of the existence of a cartel. However, complete immunity was not granted to the applicant and penalty reduction was capped at 75%. This is because the CCI was already in possession of evidence that enabled it to form a prima facie opinion about the existence of a cartel and direct a DG investigation. Accordingly, the CCI takes a very conservative approach in relation to what constitutes as “value added”.

•       Zinc Carbon Dry-Cell Batteries (Case No. 02 of 2016 and Case Nos. 02 and 03 of 2017). A leniency application filed by Panasonic Energy India Co Ltd (Panasonic) triggered an investigation by the CCI into cartelisation of dry-cell batteries between Panasonic, Eveready Industries India Ltd. (Eveready) and Indo National Ltd (Nippo). Subsequently, the Association of Indian Dry Cell Manufacturers (AIDCM), (of which Panasonic, Eveready and Nippo were members) was also included within the scope of the investigation. The DG is reported to have conducted search and seizure operations on the premises of Panasonic, Eveready and Nippo and examined fax and email communications and other documents. The CCI granted Panasonic full immunity from administrative penalties (100% reduction) as it was the first leniency applicant and it enabled the CCI to form a prima facie opinion regarding the existence of the cartel. Eveready and Nippo, (which applied for leniency at a later stage), were granted 30% and 20% reductions respectively for their co-operation in the case.

Subsequently, Panasonic Corporation filed a leniency application on behalf of itself and Panasonic, implicating Geep Industries (India) Pvt Ltd (Geep) (Case No. 02 of 2017) and Godrej & Boyce Manufacturing Co Ltd (Godrej) (Case No. 03 of 2017) of fixing prices of dry-cell batteries sold by Panasonic, Geep and Godrej, respectively. Panasonic was the supplier of dry-cell batteries to both Geep and Godrej. Panasonic submitted that it revised the prices of the batteries that it supplied to Geep and Godrej based on the decisions taken by the primary cartel between Eveready, Nippo and itself. Although the CCI imposed a penalty on Geep and Godrej, Panasonic was granted 100% reduction in penalty, as the leniency application made vital disclosures, which enabled the CCI to form a prima facie opinion regarding the existence of the cartel between Panasonic, Geep and Godrej and to direct a DG investigation.

•       Cartelisation in the flashlights market (Case No. 01 of 2017). Eveready filed a leniency application reporting exchange of information on production and sale of flashlights. Eveready submitted that along with Panasonic, Nippo, and Geep, it had exchanged information on prices, production, and sales of flashlights through their interactions under the aegis of the AIDCM. Subsequently, Panasonic also filed a leniency application disclosing that it was part of the alleged anti-competitive information exchange in relation to the flashlights. Panasonic further submitted that the CCI should view its conduct in the flashlights market as a continuation of its previously disclosed conduct in the dry-cell market.

Based on the information received through the leniency applications, the CCI directed the DG to conduct an investigation into the alleged anti-competitive conduct of Eveready, Panasonic, Nippo, Geep and AIDCM. The DG absolved Geep of any anti-competitive conduct. The battery manufacturers raised the preliminary argument that no separate case in relation to the flashlights market could subsist against them since the CCI had already penalised them for cartelisation in the market for zinc-carbon dry-cell batteries (Case No. 02 of 2016). However, the CCI rejected the argument and stated that despite being complementary in nature, batteries and flashlights were separate products in terms of end use and characteristics.

Notably, after the review of evidence, the CCI observed that while the battery manufacturers exchanged commercially sensitive information through AIDCM and reached an agreement to collectively increase prices of flashlights, there was no evidence to suggest that the agreement was in fact implemented. Accordingly, the CCI closed the investigation and did not impose a penalty on any party.

•       Pune Municipal Corporation (Case No. 50 of 2015 and Case Nos. 03 and 04 of 2016). The case was initiated on the basis of an “information” (complaint) filed under section 19(1)(a) of the Competition Act by Nagrik Chetna Manch, alleging bid-rigging by six parties in tenders issued by Pune Municipal Corporation (PMC) for municipal organic and inorganic solid waste processing plants. During the DG’s investigation, one applicant applied for leniency and subsequently five other parties applied at different stages. The parties at the outset raised issues of due process breach by the DG, arguing that confidentiality was not granted to their statements as recorded by the DG, resulting in reputational harm.

The CCI rejected the claim and explained that confidentiality granted under the Lesser Penalty Regulations did not extend to evidence collected by the DG as part of its investigation, even if this evidence was obtained from a leniency applicant. Further, it was held that, unless directed otherwise by the CCI, the proceedings are not open to public, including the contents of the DG investigation report. Full immunity was not granted to any of the six leniency applicants that had approached the CCI during the investigation. However, penalties for four applicants were reduced based on the dates of their applications and the value they added to the investigation. The remaining two applicants were not granted any reduction in penalties as their disclosures did not provide significant added value.

Based on the information received by the CCI in this case, it further initiated two distinct investigations into allegations of bid-rigging in other tenders. In Case No. 03 of 2016, the CCI received a leniency application by one of the parties, followed by two other leniency applications once it had initiated the investigation. Another application was filed after the CCI had directed a DG investigation into the matter. Out of the four applicants, leniency (of 50%) was only granted to the first applicant for providing evidence that added value to the investigation. The remaining applicants were not granted any reduction in penalties as their disclosures did not provide significant added value. In Case No. 04 of 2016, one of the parties applied for leniency to the CCI after the DG investigation had been initiated. The CCI did not levy any penalty on the parties in consideration of the fact that penalty had already been levied on the parties in Case No. 50 of 2015.

•       Cartelisation in relation to tenders for broadcasting rights of sporting events (Case No. 02 of 2013). The case was initiated on the basis of a lesser penalty application filed jointly by Globecast India Pvt Ltd and Globecast Asia Pvt Ltd (Globecast) disclosing a cartel with Essel Shyam Communication Limited (ESCL) to rig tenders for procurement of broadcasting services of various sporting events in India. Globecast submitted that there was an exchange of commercially sensitive information between Globecast and ESCL resulting in bid rigging. The CCI, after forming a prima facie opinion of the existence of a cartel, directed the DG to investigate the conduct of Globecast and ESCL. During the course of the DG’s investigation, ESCL also filed a leniency application, corroborating the available evidence, and also disclosing additional facts such as the proposed strategic investment of Globecast in ESCL (a fact which was not disclosed by Globecast). The CCI granted 100% reduction in penalty to Globecast as its lesser penalty application enabled the CCI to form a prima facie opinion. ESCL was granted a 30% reduction in penalty as the evidence furnished by it added value to the ongoing investigation.

•       Electronic Power Steering Systems (Case No. 07(01) of 2014). The case was initiated on the basis of a leniency application filed by NSK Ltd (NSK) implicating itself and JTEKT Corporation along with their Indian subsidiaries, Rane NSK Steering Systems India Ltd (RNSS), and JTEKT Sona Automotive India Ltd (JTEKT India) respectively, of cartelising in relation to the supply of column type Electronic Power Steering Systems to certain original equipment manufacturers. The CCI formed its prima facie opinion based on the leniency application filed by NSK and directed the DG to investigate the conduct of NSK, RNSS, JTEKT and JTEKT India. During the course of the investigation, JTEKT also filed a leniency application with the CCI. The CCI granted 100% reduction in penalty to NSK (and RNSS) as its lesser penalty application enabled the CCI to form a prima facie opinion. JTEKT was granted a 50% reduction in penalty as the evidence furnished by it added significant value to the ongoing investigation.

Availability of leniency

Administrative liability

4.     Is full immunity from administrative penalties available? What conditions must be met for immunity to be granted?

The CCI has the power to grant full immunity from administrative penalties leviable on cartels under the Competition Act.

An applicant will be granted a reduction in administrative penalties (up to 100% if it is the first applicant) if it satisfies the following conditions:
Ceases participation in the cartel from the time of the disclosure (unless directed otherwise).

•       Provides vital disclosure in relation to the violation of the Competition Act.

•       Provides all relevant information, documents and evidence as requested by the CCI.

•       Co-operates genuinely, fully, continuously and expeditiously throughout the investigations and at no point, conceals, destroys, manipulates or removes the relevant documents in any manner that can contribute to the establishment of a cartel.

The CCI can also impose further conditions on the applicant depending on the facts and circumstances of the particular case.
In addition, to be granted full immunity, the first applicant for leniency must make vital disclosure by submitting evidence of a cartel enabling the CCI to either:

•        Form a prima facie opinion regarding the existence of a cartel where the CCI did not have the evidence to form that opinion.

•       Establish a violation of section 3 of the Competition Act by providing evidence that the DG or the CCI did not have.

5.     Is there a sliding scale of available leniency from administrative penalties?

There is a sliding scale of leniency from administrative penalties under the Lesser Penalty Regulations. The CCI can reduce the penalties of more than one leniency applicant (see Question 3 and Question 4).

The second or third applicant in the priority status can also be granted the benefit of a reduction in penalty by up to 50% and 30% of the full leviable penalty respectively on making a disclosure by submitting evidence, which provides significant added value to the evidence already in the possession of the CCI for establishing the existence of the cartel.

As previously mentioned, the CCI amended the Lesser Penalty Regulations in August 2017 (amendment). Originally, the Lesser Penalty Regulations only extended the entitlement to a fine reduction to a maximum of three leniency applicants on a first come, first served basis. The amendment has done away with this limitation and has now permitted additional applicants to avail the benefit of the Lesser Penalty Regulations. All applicants subsequent to the third are now eligible for a reduction in penalty by up to 30% of the full leviable penalty.

6.     Is immunity or leniency for administrative penalties available to individuals? If so, what conditions apply?

Immunity and leniency for administrative penalties is available to individuals. See Question 4 for the conditions that must be satisfied to avail immunity or leniency under the Competition Act.

See Question 7, Employees’ interests. for the consequences of an individual not co-operating with a corporate leniency applicant.

7.     Is immunity or leniency available for companies and/or its employees in relation to criminal prosecution? What are the implications for employees when an undertaking has been granted immunity or leniency?

Circumstances

Anti-competitive practices, including cartels are not subject to criminal prosecution under the Competition Act.

Proceedings against employees

See above, Circumstances.

Employees’ interests.

The amended Lesser Penalty Regulations apply to enterprises and the individuals involved in a cartel on behalf of such enterprises.
However, where an individual within the scope of the applicant’s leniency application refuses to co-operate with the CCI after requesting leniency, and the CCI finds that the individual was, in fact, involved in the cartel, the individual risks expulsion from the leniency programme. This however, does not necessarily put at risk the enterprise’s application for leniency. To the best of our knowledge, expulsion as described above has not yet been tested under the Indian leniency regime.

Application proceedings

8.     When should an application for leniency be made?

A leniency application must be made as soon as the prospective applicant becomes aware of an offence under the Competition Act. Although the application can be made after the investigation has started, no immunity is granted to an applicant if the application is made once the DG has submitted its investigation report to the CCI.

9.     What are the procedural rules for leniency applications?

Relevant authority

An application for leniency is made to the CCI.

Applicant

The application for leniency must be made by the enterprise, or any of its employees who have been involved in the cartel, either directly or through a legal representative.

Informal/confidential guidance

It is not possible to obtain informal guidance before submitting an application, to determine whether an undertaking will qualify for full immunity or leniency.

Form of application

An application must be made to a designated authority in writing, containing the information listed in the Schedule to the Lesser Penalty Regulations.
The applicant can also contact the designated authority (either orally or through email or fax) to submit information and evidence relating to the existence of a cartel.

Markers

Under the provisions of the Competition Act, a leniency applicant can apply for a marker to secure a position in the leniency or immunity queue to allow it to gather the necessary information and evidence to perfect the marker.
The process for applying for a marker involves two steps:

•       Submitting a marker letter to the CCI, orally, by post or email.

•       Submitting a detailed written leniency application within a period not exceeding 15 days (this period can be extended by the CCI) from the date of submitting the marker letter to the CCI. If the leniency application is not received within this period, the applicant may forfeit its priority status and consequently the benefit of grant of lesser penalty.

The CCI must convey the order of priority in which the marker letters were submitted to the leniency applicants.

Information/evidence

Under the Lesser Penalty Regulations, a leniency application must include the following information:

•       Relevant names and addresses.

•       If the applicant is based outside of India, the address of the applicant in India for communication, (including telephone number and email address and so on).

•       A detailed description of the alleged cartel arrangement, including its aims and objectives and the details of activities and functions carried out for securing these aims and objectives.

•       The goods or services involved.

•       The geographic market covered.

•       Commencement date and duration of the cartel.

•       The estimated volume of business affected in India by the alleged cartel.

•       Names and details of all individuals who, in the knowledge of the applicant, are or have been involved in the alleged cartel, including on behalf of the applicant.

•       Details of the other competition authorities, forums or courts, if any, approached or intended to be approached in relation to the alleged cartel.

•       A descriptive list of evidence provided in support of the application.

•       Any other material information as may be directed by the CCI.

A leniency applicant is not required to admit guilt while applying for leniency. An applicant must simply self-assess agreements in light of the Competition Act to identify whether they may have contravened the provisions of the Act and the CCI must determine whether the applicant has, in fact, contravened the provisions.

Oral statements

An application for a marker can be recorded orally. However, the initial oral contact must be followed by a detailed written leniency application within a period not exceeding 15 days (see above, Markers).

During the investigation, the applicant can adduce evidence by way of oral submissions, in response to the questions posed by the DG. In practice, the DG and the CCI record in writing the statements made as oral submissions.

Short-form applications

Not applicable.

10.     What are the applicable procedures and timetable?

An application for leniency consists of the following steps:

•       An application is submitted containing the material information as specified in the Lesser Penalty Regulations, or a marker letter is submitted to the designated authority. The designated authority has five working days from the date of the contact or the application (if submitted at the outset) to bring the matter before the CCI.

•       Where the CCI receives a marker letter, the applicant must submit the detailed leniency application and the relevant evidence and information to the CCI within a period not exceeding 15 days from the date of the initial contact (the CCI can extend this deadline).

•       On receiving a leniency application, the CCI must acknowledge the receipt of the same, mark the priority status of the applicant, and the date and time of receipt by the designated authority. The priority status must be notified to the applicant. The CCI then forwards this information to the DG, who initiates an investigation.

•       Subsequently, the DG evaluates the evidence submitted and forwards a report with its findings, including the extent of the applicant’s co-operation, to the CCI, which then invites oral and written submissions from the applicant.

•       The CCI passes a final order.

Withdrawal of leniency

11.     In what circumstances and at what stage of the proceedings can leniency be withdrawn? What implications does the withdrawal of leniency from one company have for other applicants?

The CCI can withdraw leniency if during the enquiry the applicant fails to comply with the conditions imposed and fails to co-operate. However, this is likely to be communicated along with the CCI’s final order and not during the enquiry.

If the CCI withdraws the leniency for a given applicant, the subsequent applicants, in order of their applications, continue to be eligible for leniency.

Scope of protection

12.     What is the scope of leniency protection after it has been granted?

Under the Lesser Penalty Regulations, leniency protection is limited to the cartel in relation to which information is provided.

13. Does the competition authority offer any further reduction in fines for an undertaking’s activities in one market if it is the first to disclose restrictive agreements and practices in another market (leniency plus)?

The Competition Act and the Lesser Penalty Regulations do not deal with the concept of leniency plus.

14.     Does the grant of leniency affect a third party’s ability to bring a follow-on damages action against a leniency applicant?

The application for grant of leniency would not affect follow-on damages actions brought by a third party against a member of a cartel. Under the Competition Act, any person, enterprise, local authority, state government or central government can make an application to the National Company Law Appellate Tribunal (NCLAT) (the appellate authority for the purposes of the Competition Act) to adjudicate compensation claims that may arise from the findings of the CCI or the orders of the NCLAT. No compensation claims in relation to cartels have been decided by the NCLAT to date.

Confidentiality and disclosure

15.     What are the rules relating to confidentiality during a leniency application?

Identity disclosure

The CCI and the DG must treat the identity of the applicant as confidential, except in any of the following circumstances:

•       Disclosure is required by law.

•       The applicant has agreed to the disclosure in writing.

•       The applicant has publicly disclosed this information.

Information disclosure

The CCI and the DG must treat the information, documents and evidence submitted by the applicant as confidential, subject to certain conditions (see above, Identity disclosure).

Further, the DG can disclose information, documents and evidence submitted by an applicant, to a party to the proceedings, if the DG deems that the disclosure is necessary for the purposes of the investigation (even if the applicant has not agreed to the disclosure). In such cases, the DG makes the disclosure for reasons to be recorded in writing and after taking prior approval of the CCI.

Confidentiality requests

The Lesser Penalty Regulations grant confidentiality to all information submitted by a leniency applicant, subject to certain conditions (see above, Identity disclosure).

16.     What are the rules concerning disclosure of statements made in support of a leniency application?

Domestic submissions and domestic discovery

The Competition Act and the CCI (General) Regulations, 2009 (General Regulations) allow for statements to be made under affidavits. As per the Lesser Penalty Regulations, the identity of the applicant and the statements made in support of a leniency application are considered as confidential. However, the identity of the applicant and the statement made in support of a leniency application may be disclosed in any of the following circumstances:

•       Disclosure is required by law.

•       The applicant has agreed to the disclosure in writing.

•       The applicant has publicly disclosed this information.

Further, under the amendment to the Lesser Penalty Regulations, the DG may disclose confidential information without seeking the applicant’s approval, after:

•       Recording its reasoning for disclosure in writing.

•       Seeking the approval of the CCI.

Domestic submissions and foreign discovery

The Competition Act and the Lesser Penalty Regulations are silent in relation to disclosure by way of foreign discovery of statements made in support of a leniency application. Nevertheless, information sharing is unlikely given the differences in relation to confidentiality and sanctions (criminal or civil) in different jurisdictions. The CCI will likely only share non-confidential information with foreign authorities.

• Foreign submissions and domestic discovery
  
  The Competition Act and the Lesser Penalty Regulations are also silent in this regard (see above, Domestic submissions and foreign discovery.

Inter-agency co-operation

17.     Does the regulatory authority in your jurisdiction co-operate with regulatory authorities from other jurisdictions in relation to leniency? If so, what is the legal basis for and extent of co-operation?

The Competition Act provides for co-operation between the CCI and competition authorities from other jurisdictions.

The CCI has entered into co-operation agreements with the:

•       US Federal Trade Commission and Department of Justice.

•       DG Competition of the European Commission.

•       Australian Competition and Consumer Commission.

•       Russian Federal Antimonopoly Service.

•       Competition Bureau Canada.

However, there are no specific provisions in the Competition Act or the Lesser Penalty Regulations for co-operation between the CCI and competition authorities from other jurisdictions in relation to leniency (see Question 16, Domestic submissions and foreign discovery.)

Whistleblowers

18.     Are there any whistleblower tools for individuals to report competition violations/cartels?

Whistleblower tools

The CCI amended the Lesser Penalty Regulations in August 2017 and expanded its scope to specifically allow individuals to approach the CCI with evidence of collusion and file a leniency application (see Question 2). Any such individual can provide the CCI with evidence on collusion or file the leniency application by sending an e-mail to secy@cci.gov.in or submitting the form available on the CCI’s website (https://www.cci.gov.in/node/add/complaint-management).

Whistleblower protection

There are no safeguards for individuals who report competition violations/ cartels; however, the CCI maintains complete confidentiality regarding the identity of whistleblowers (see Question 15).

19.     Is there a reward for individuals who report competition violations/cartels?

The Indian leniency regime treats individuals applying for leniency in the same way as enterprises applying for leniency. Immunity and leniency for administrative penalties is available to individuals. See Question 4 for the conditions that must be satisfied to avail immunity or leniency under the Competition Act. However, there is currently no reward for whistleblowers who report a possible competition violation/ cartel but who had not participated in the wrongdoing.

Proposals for reform

20.     Are there any proposals for reform?

The Competition Law Review Committee (CLRC) that formed in October 2018 to review the Competition Act issued its report to the Ministry of Corporate Affairs on 26 July 2019. The CLRC’s report contains multiple recommendations with respect to the substantive aspects of the Competition Act as well as in relation to the governance and administrative functioning of the CCI and NCLAT. The notable recommendations regarding the leniency regime include:
Introducing the concept of “leniency plus”.

Establishing a proactive antitrust enforcement tool aimed at attracting leniency applications by encouraging companies already under investigation for one cartel to report cartels unknown to the CCI. This would result in reduction of penalty in the first cartel to the person/enterprise disclosing the information, thereby incentivising applicants to come forward with disclosures regarding multiple cartels. It has been suggested that the reduction will be over and above any other penalty reductions that such applicant may receive under the present framework.

Introducing provisions to enable withdrawal of leniency applications. This would be useful where an enterprise applies for leniency and later on learns that there has been no contravention of cartel provisions under the Competition Act.

Further, the report also proposes that the CCI should be allowed to rely on the information/ evidence submitted by the leniency applicant for the purposes of prosecution under the Competition Act.

Currently, it is not known if and when these recommendations will be adopted. The recommendations are not binding on the Government of India and it remains to be seen to what extent they will be accepted.

Authors:

Samir Gandhi, Senior Partner
Aditi Gopalakrishnan, Partner
Toshit Shandilya, Senior Associate
Rahul Shukla, Associate
Ravi Gangal, Associate