The Legislations, Evolution and the Competent Authorities
India, being a common law nation, boasts of one of the oldest competition law regulations in the world. Competition law as a concept has developed its relevance and appeal to the global masses only with the advent of the 21st century. Having said this, India’s Competition Law legislation dates back to nearly 5 decades. The Monopoly Trade and Restrictive Trade Practices Act of 1969 was the first of its kind competent legislation in India that dealt with issues pertaining to the current ambit of competition law. The act was, however, pretty limited in its ambit and required for frequent amendments to keep the act intact with the rapid evolution of trade and trade practices. Taking this into consideration, the centre set up the S. V. Raghavan committee to develop India’s Competition law policy and following the same, The Competition Act of 2002[1] came into existence. The Competition Commission of India, popularly known as the CCI was set up as the regulatory authority to deal with Competition law enforcement in India. Having said this, the US competition law legislations date back to the 18th century.
The Sherman Act of 1890 was the first of its kind anti-trust legislation in the United States of America. The Act had its source from all the monopolies that were in operational in the Railways back then an aimed at keeping a check on these monopolies. This was followed by the Clayton and Federal Trade Commission Act of 1914. The former was enacted to deal with mergers and acquisitions while the latter was enacted to establish the Federal Trade Commission(the FTC), giving it the concurrent power to deal those issues which had their ambits in both the Sherman and Clayton acts, through civil remedies, available at hand.
The European Union Competition Law framework has its roots from the Treaty of Functioning of European Union which was signed in 1957 and came into effect from the January of 1958. Competition Law in particular is dealt under Articles 101 and 102 of this treaty. The European Commission was sent up following the same as the competent Authority to deal with all those enforcement aspects of the Treaty and development of the Competition Law policies of the European Union. The development of this treaty had its backing in the formation of the European Union in the first place since the European Union meant co-operation and co-ordination across all fronts.
Powers of the Regulatory Authorities established under these laws and Judicial Dependence
For effective analysis of any legislation, the analysis of the authorities that are set up under the act is a must. For instance, let us analyse those issues concerning the ambit of mergers and acquisitions. The Competition Commission of India has full autonomy as an authority when it comes to dealing with all those issues pertaining to competition law. The Combination Regulations of 2011 released by the CCI deals with all the processes relating to mergers and acquisitions. The interference of the judiciary and the courts is pretty limited in this regard and the Indian courts do not interfere unless and until the issue is taken to the judiciary. The COMPAT holds proceedings, functioning as a quasi-judiciary authority.
The Federal Trade Commission of the U.S.A. is a judicial driven authority with a heavy reliance on the Department of Justice. The Commission has no express say when it comes to questions of mergers and acquisitions. The entities and companies are hence forced to approach the Courts of U.S.A., coming under the Department of Justice for any issue pertaining to the ambit of mergers and acquisitions.
Analysing the European Commission, there is again, a certain degree of autonomy granted to the commission. Taking the example of mergers and acquisition, the European Commission has the power to regulate and officiate all those processes and proceedings relating to mergers and acquisitions between regulated entities of the European Union. This being said, the commission lacks command over all those issues outside the purview of the Treat and the regulatory authorities of the particular states have say in the same.
Remedy Seeking under these legislations
The Indian process for remedy seeking under the Act is pretty straightforward and much less complicated compared to the US and EU legislations. Private parties are required to approach the Competition Commission of India for any such violation of the anti-trust laws and request for the commission to hold an enquiry. Once the same is done, entities can approach the Competition Appellate Tribunal to receive compensations from the concerned parties in violation of the anti-trust laws. The presence of a simplified process with minimal judicial interference, makes the going easy.
Private parties in the US have to approach the Federal courts of USA in accordance with those relevant provisions under the Act to seek for remedies in violation of the antitrust law. The U.S. Courts were considerably overburdened with about 14,000 suits a year up until 1997 when a U.S. Supreme Court issued two opinions, making the circumstances for filing an anti-trust suit stringer and hence bringing down the suits to nearly 400 in number[2].
The EU remedy seeking process is also in line with the Indian concept of minimal judicial interference. The EU Competition Commission has the autonomy to deal with those remedies requested by the from entities and can pass orders against entities found in violation of the anti-trust laws.
Conclusion
Due to the paucity of words, the analysis of this work is limited to the evolution of these laws, the regulatory authorities set up, their ambit and their remedy seeking possibilities. The above mentioned three are crucial to any legislation and has been identified by the author as vital for a generic analysis of the competition law regimes of U.S.A., India and EU. This report does not focus on the intrinsic analysis of specific sections of the statutes. The advantage is India’s young base and India ought to learn from the trial and errors that established regimes have made in the development of their regimes.
[1]The Competition Act, 2002(No. 12 of 2002 dated 13 of January 2003)
[2]Steven Salop & Lawrence White, Economic Analysis of Private Antitrust Litigation, 74 Georgetown L.J. 1001,1002 (1986).
This article is authored by Pascal Sasil R, Second-Year, B.A. LL.B (Hons.) School of Law, CHRIST
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