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LAW COMPETITION LAW Vertical Agreements Under Competition Act

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LAW COMPETITION LAW Vertical Agreements Under Competition Act LAW COMPETITION LAW Vertical agreements under Competition Act 2002 Q1: E-TEXT Module ID 14: Vertical Agreements under Competition Act, 2002 Module Overview: In this module, provisions of the Competition Act, 2002 that deal with vertical agreements have been discussed at length. Section 3(4) of the act describes agreement amongst enterprises or persons at different stages of the production-supply chain in different markets with regard to goods or services to be anti-competitive if such agreement causes or is likely to cause an appreciable adverse effect on competition. The inclusive nature of the definition has been discussed along with the types of such agreements. Since such agreements are not bad per se, rule of reason has been applied by the Commission. Various market forces that are needed to find about anti-competitiveness of such agreements, as provided under Sec.19 (3) have been talked about briefly. Further, if such arrangement amongst the enterprises causes adverse effect on competition, these are prohibited under Section 3 of the Act. Also, impacts of such agreements on competition in India have been discussed. Subject Name: Law Paper Name: Competition Law Module ID: 14 Pre-requisites: For understanding the module, basic knowledge of anti-competitive agreements and the related provisions in the Competition Act, 2002 is required. Objectives: • The main objective of the module is to discuss about provisions of the Competition Act, 2002 pertaining to vertical agreements ; • To appraise the students of various types of vertical agreements as per the Act • To make students understand the impact of such vertical restraints on competition in India To discuss about provisions of the Competition Act, 2002 pertaining to vertical agreements ; To appraise the students of various types of vertical agreements as per the Act To make students understand the impact of such vertical restraints on competition in India Keywords: Competition, Market, Practices, Vertical agreements, Rule per se, Rule of reason, Exclusive dealing agreements, Tie-in Sales, Resale Price Maintenance, Refusal to deal, Appreciable adverse effects, Foreclosure of Competition. 14.1 Introduction The Competition Act, 2002, the anti-trust legislation in India, aims at preventing practices that have appreciable adverse effects on competition in India. Anti-competitive agreements are prohibited under Section 3 of the Act. The term vertical agreement has not been used in the Act as such. Section 3(4) of the Act, however, provides for certain types of anti- competitive agreement between or amongst firms at different stages or levels of the supply chain of any product or services.It states that: Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including- a) Tie-in-arrangement b) Exclusive supply agreement c) Exclusive distribution agreement d) Refusal to deal e) Re-sale price maintenance …shall be an agreement in contravention of section 3(1), if such agreement causes or is likely to cause an appreciable adverse effect on competition in India. Section 3(1) and 3(2) read together with Section 3(4) prohibit such agreements and declare them to be void. Section 2(m) of the Act defines the term ‘practice’ as any practice relating to the carrying on of any trade by a person or an enterprise and Sec. 2(a) defines ‘activity’ as a term that includes any profession or occupation. Section 3(5) provides for the exceptions where restrictions imposed by sub-sections (3) and (4) do not apply. To increase their profits, the firms at different levels of the production chain may enter into such agreements amongst each other that may affect the competition adversely. The intention of the economically stronger party behind such arrangements is to compel the other party to supply that goods or service which is the subject matter of such arrangement, in its own favour. Market Power The market power of the firm enacting vertical restraint is important. If the said firm does not enjoy combination of market power to its side, i.e. there already exists enough inter-brand competition, in the market regarding the goods or services produced by the involved manufacturer firm, the alleged vertical restraint will not have any major effect on competition in the market. Market power is different from dominance. Market power refers to power over price and it may occur even in situations where no firm has dominant position. Learning Outcomes: • Understanding the concept of vertical agreements as per the provisions of the Competition Act, 2002. • Finding various typesof vertical agreementsand the inclusive definition of every type of vertical agreements as per sec. 3 of the Act. • Learning about the factors under sec. 19(3) that should be considered while looking into the anti-competitiveness of such arrangements. • Knowing about exceptional situations laid by Sec. 3(5) where prohibitions under Sec. 3 are not applicable. Understanding the concept of vertical agreements as per the provisions of the Competition Act, 2002. Finding various types of vertical agreements and the inclusive definition of every type of vertical agreements as per sec. 3 of the Act. Learning about the factors under sec. 19(3) that should be considered while looking into the anti- competitiveness of such arrangements. Knowing about exceptional situations laid by Sec. 3(5) where prohibitions under Sec. 3 are not applicable. 14.2 Regulation of Vertical agreements Vertical agreements were prohibited per seearlier while rule of reason is being preferred by the Court now to evaluate vertical restraints. The Indian Competition law is in tune with US competition law as far as applicability of rule of reason is concerned. Tata Engineering and Locomotive Co. Ltd. v Registrar of Restrictive Trade Agreement is a landmark decision of Supreme Court of India which aptly illustrated the applicability of rule of reason in cases of restrictive trade practices. The SC,in this case, held that the following three issues should be considered to determine whether a restraint suppressed or promoted competition: i. Facts peculiar to the business to which the restraint is applied; ii. The condition before and after the restraint is imposed; iii. Nature of restraint and actual and probable effects. 14.3 Types of Vertical Agreements: The Explanation to Sub-sec. 3(4) provides definition to each such type as follows: b) Exclusive c) Exclusive a) Tie-in- supply distribution arrangement agreement agreement e) Re-sale d) Refusal to price deal maintenance a) Tie-in-arrangements includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods. This is an arrangement by which a seller agrees to sell a product known as the tying item only on the condition that buyer agrees to buy a second product known as the tied product from the seller. Such arrangements not only reduce or eliminate the competition completely but also remove buyer’s resistance to the tied product. Following tie-in arrangements were held to be in restraint of trade: Ø In re Hindustan Motors Ltd.case, requiring the buyers of cars to pay towards the servicing of cars with the sale price. Ø In re Anand Gas case, requiring customer to buy gas stove while giving gas connection b) Exclusive supply agreements includes any agreement restricting in any manner the purchase in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person. In Jindal Steel v SAIL, an exclusive supply agreement through a memorandum of understanding (MOU), was entered into between Indian Railways and Steel Authority of India (SAIL) to supply rails on a continuous basis. Jindal Steel and Power Limited alleged that the said MOU resulted in foreclosure of the relevant market for it. It was held that the MOU was not hit by Sec. 3(4) and hence, not anti-competitive. Consumer Guidance Society v Hindustan Coca Cola Beverages Ltdis another case dealing with exclusive supply agreements.. c) Exclusive distributionagreements includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods. The main feature of such agreements is that the manufacturer or supplier agrees to supply certain goods for resale to only one party, the exclusive distributor within a defined territory and no other party will be supplied with the goods within that area by the supplier. Exclusive dealing is a way of restraining inter- brand competition. d) Refusal to dealincludes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought. It is a sort of boycott. It means refusal to buy or sell by a mutual agreement with an intention to restrict competition is illegal.Refusal to buy or sell by a mutual agreement with an intention to restrict competition is illegal. The Act, however, does not empower the authority to decide on behalf of any of the parties whether they should enter into any particular agreement or not. To deal or not to deal is the freedom of the enterprise and they can choose not to deal with any specific firm or person. But where such refusal to deal falls within the definition of the Act, the behavior of the enterprises is said to be anti-competitive. In Kapoor Glass Pvt. Ltd. v Schott Glass Pvt. Ltd., the CCI held the joint venture to be anti-competitive since it as created to finish off competition in the downstream market and that various agreements were in contravention of clauses (a), (b), (d) and (e) of section 3(4) .
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