Competition Commission of India (Settlement) Regulations, 2024 - CCI/Reg-S.R./2024 - Competition Law

THE COMPETITION COMMISSION OF INDIA NOTIFICATION New Delhi, the 6th March, 2024 THE COMPETITION COMMISSION OF INDIA (SETTLEMENT) REGULATIONS, 2024 (No. 04 OF 2024) No. CCI/Reg-S.R./2024 . In exercise of the powers conferred by section 64 read with section 48A of the Competition Act, 2002 (12 of 2003), the Competition Commission of India hereby makes the following regulations to specify the procedure for filing of settlement applications and for conducting the settlement proceedings and matters connected therewith or incidental thereto, namely:- 1. Short title and commencement. - (1) These regulations may be called the Competition Commission of India (Settlement) Regulations, 2024. (2) They shall come into force on the date of their publication in the Official Gazette. 2. Definitions. (1) In these regulations, unless the context otherwise requires: (a) Act means the Competition Act, 2002 (12 of 2003); (b) Commission means the Competition Commission of India established under sub-section (1) of section 7 of the Act; (c) Director General means the Director General as defined in clause (g) of section 2 of the Act; (d) Penalty Guidelines means guidelines published by the Commission under sub-section (3) of section 64B of the Act; (e) Settlement Amount means the amount determined by the Commission under regulation 6 of these regulations; (f) Settlement Applicant means any enterprise, as defined in clause (h) of section 2 of the Act, against whom any inquiry has been initiated under sub-section (1) of section 26 of the Act for alleged contraventions of sub-section (4) of section 3 or section 4 of the Act, and submits an application for settlement of proceedings initiated for the alleged contraventions to the Commission under these regulations; (g) Settlement Application means an application submitted by a Settlement Applicant to the Commission under these regulations for settlement of proceedings initiated for the alleged contraventions of sub-section (4) of section 3 or section 4 of the Act. (2) Words and expressions used but not defined in these regulations shall have the same meanings as assigned to them in the Act or in the regulations framed thereunder or in the Companies Act, 2013 (18 of 2013), as the case may be. 3. Application for settlement. - (1) A Settlement Applicant may make a Settlement Application to the Commission in writing, accompanied by such fee as provided under sub-regulation (1) of regulation 9, containing the information as specified below: a) name, legal status (company or firm or LLP or trust, etc.), registration number (if applicable), contact details including complete registered address, principal business address (with area code, city and country), mobile/ telephone number, email and website address (if any) of the Settlement Applicant. b) name of the authorised representative(s) of the Settlement Applicant and their contact details including complete business address, telephone number and email. c) proof of payment of fees to the Commission under regulation 9. d) details of the findings of the Director General in relation to the Settlement Applicant in the investigation report received under sub-section (4) of section 26 of the Act. e) full and true disclosure of facts in respect of the alleged contraventions and the findings of the Director General. f) details of the proposal for settlement including as to how the same addresses the alleged contraventions, competition concerns and the manner of implementation and monitoring thereof. g) whether the Settlement Applicant, has previously been found to have contravened any provision of the Act or whether any proceeding against the Settlement Applicant is pending for any alleged violation of the provisions of the Act or whether the Settlement Applicant has in the past made any settlement or commitment application(s). If so, the details thereof. h) details of nature, gravity and impact of the alleged contraventions and the duration of the enterprise s involvement in the alleged contraventions. i) a summary, not containing any confidential information, comprising of prima facie opinion of the Commission expressed in the order issued under sub-section (1) of section 26 of the Act, findings of the Director General in the investigation report received under sub-section (4) of section 26 of the Act along with details of the competition concerns, alleged contraventions, duly capturing settlement proposal offered by the Settlement Applicant and how they address the competition concerns. j) details of other competition authorities, fora or courts, if any, which have examined or are currently examining the alleged contraventions including those where the Settlement Applicant has filed commitment and / or settlement applications. k) undertakings and waivers as per Schedule I. l) any other information that may assist the Commission in determining the terms of the settlement and the Settlement Amount having due regard to the factors specified under regulation 8. (2) The Settlement Application under sub-regulation (1) may be submitted after the receipt of the report of the Director General or confidential version thereof, if applicable, by the Settlement Applicant under sub-section (4) of section 26 of the Act. Provided that a Settlement Application shall not be entertained by the Commission if it is made after expiry of 45 (forty five) days from the receipt of report of the Director General or confidential version thereof, if applicable, by the Settlement Applicant. Provided further that the Commission may entertain a Settlement Application after the period specified above, if the Settlement Application is received within a further period of 30 (thirty) days and the Commission is satisfied that there had been sufficient cause for not filing the same within the specified period after recording reasons for condoning such delay. (3) Where Settlement Application is incomplete in any respect or does not conform to the requirements of these regulations, the Settlement Applicant may be asked to remove such defect(s) or furnish the required information including document(s). The Settlement Applicant shall rectify such defects or furnish the required information including document(s) within 10 (ten) working days of the receipt of communication or such other period as may be specified by the Commission, failing which the Settlement Application may be treated as invalid. (4) A Settlement Application may be withdrawn by the Settlement Applicant at any time prior to the passing of an order by the Commission under regulation 4. (5) No application for settlement of any proceedings shall be considered, a) if the Settlement Application does not cover all the contraventions found by the Director General in its investigation report under sub-section (4) of section 26 of the Act. b) if any amount due under the Act is liable for recovery from the Settlement Applicant. 4. Consideration of proposal for settlement.- (1) The Settlement Application complete in all respects in terms of regulation 3 shall be placed for consideration before the Commission in its ordinary meeting within 7 (seven) working days of receipt thereof. (2) If the Commission is prima facie not satisfied with the settlement proposal offered by the Settlement Applicant, it shall communicate to the Settlement Applicant the reasons for the same and call upon the Settlement Applicant to furnish, within 15 (fifteen) working days of the receipt of the said communication, a revised Settlement Application. (3) When the Settlement Application complete in all respects is placed for consideration before the Commission under sub-regulation (1) above, the inquiry against the Settlement Applicant shall remain in abeyance till final decision on the Settlement Application or till such time, as may be decided by the Commission. (4) While considering the proposal for settlement, the Commission shall invite objections and suggestions in terms of regulation 5. (5) After consideration of the nature, gravity and impact of the alleged contraventions, the proposal for settlement submitted by the Settlement Applicant and the comments, objections, or suggestions received under regulation 5, a.) the Commission may pass an order in terms of sub-section (3) of section 48A of the Act agreeing to the proposal for settlement as contained in the Settlement Application filed under sub-regulation (1) of regulation 3 or the revised Settlement Application filed under sub-regulation (2) above, as the case may be, subject to such other terms relating to manner of implementation of settlement and monitoring and close the proceedings against the Settlement Applicant forthwith. b.) if the Commission is of the opinion that the Settlement Application filed under sub-regulation (1) of regulation 3 or the revised Settlement Application filed under sub-regulation (2) above, as the case may be, are not appropriate in the circumstances, it shall by order passed in terms of sub-section (5) of section 48A of the Act, reject the Settlement Application and proceed with its inquiry under section 26 of the Act. c.) if the Commission is not satisfied with the Settlement Application, it shall within 15 (fifteen) working days after the expiry of period specified in regulation 5, communicate to the Settlement Applicant the reasons for the same and call upon the Settlement Applicant to furnish, within 30 (thirty) days of the receipt of the said communication, a revised Settlement Application. d.) if the Commission after considering the revised Settlement Application, filed under clause (c) of this sub-regulation (5), agrees with the same, it shall pass an order in terms of sub-section (3) of section 48A of the Act agreeing to the proposal for settlement, subject to such other terms relating to manner of implementation of settlement and monitoring and close the proceedings against the Settlement Applicant forthwith. e.) if the Commission after considering the revised Settlement Application, filed under clause (c) of this sub-regulation (5), is not satisfied with the same, it shall by an order passed in terms of sub-section (5) of section 48A of the Act, reject the revised Settlement Application and proceed with its inquiry under section 26 of the Act. (6) In case the Settlement Applicant fails to submit the revised Settlement Application within the time period specified in sub-regulation (2) and clause (c) of sub-regulation (5) above, or fails to provide clarification, information, or data as sought under sub-regulation (11), the Commission shall by an order passed in terms of sub-section (5) of section 48A of the Act reject the Settlement Application and proceed with its inquiry under section 26 of the Act. (7) The Commission before passing an order in terms of sub-section (3) of section 48A of the Act shall communicate to the Settlement Applicant, the Settlement Amount computed in terms of regulation 6 and the Settlement Applicant shall communicate its acceptance of the same within 15 (fifteen) days of receipt of such communication. The Settlement Amount computed and communicated to the Settlement Applicant shall be final and any application seeking revision of the same shall not be entertained by the Commission. (8) The Settlement Applicant shall pay the Settlement Amount within a period of 30 (thirty) days from the date of acceptance thereof, whereupon the Commission shall pass an order in terms of sub-section (3) of section 48A of the Act. (9) If the Settlement Applicant fails to communicate its acceptance of the Settlement Amount within the time period prescribed in sub-regulation (7) or fails to pay the Settlement Amount within the time period prescribed in sub-regulation (8), the Commission shall by an order passed in terms of sub-section (5) of section 48A of the Act, reject the Settlement Application and proceed with its inquiry under section 26 of the Act. (10) The entire settlement proceedings shall be concluded within 180 (one hundred and eighty) working days of the receipt of the Settlement Application complete in all respect in terms of regulation 3, failing which the inquiry under section 26 of the Act against the Settlement Applicant shall stand resumed. Provided that the Commission may extend the said period of 180 (one hundred and eighty) working days by such further period as may be specified, if deemed appropriate, for reasons to be recorded in writing. (11) The Commission may seek clarification, information, or data from the Settlement Applicant, as deemed appropriate, which shall be provided by the Settlement Applicant within the time specified by the Commission. (12) Notwithstanding the above provisions, a Settlement Application may also be rejected at any time on the following grounds: a. where the Settlement Applicant refuses to receive or respond to the communications sent by the Commission. b. where the Settlement Applicant violates in any manner or does not abide by the undertaking and waivers given as per Schedule-I. (13) The Commission shall before passing an order rejecting a Settlement Application under clause (b) and (e) of sub-regulation (5), sub-regulation (6) and sub-regulation (12) above, grant the Settlement Applicant an opportunity of being heard. (14) During the pendency of a Settlement Application, the Commission may issue interim and/or other directions to protect the interest of consumers and/or to maintain protect competition in the market and require the Settlement Applicant to comply with the same within a specified time period for consideration of the Settlement Application. (15) The rejection under this regulation shall be communicated to the Settlement Applicant: Provided that the Settlement Applicant shall continue to be bound by undertakings and waivers given as per Schedule I. 5. Invitation of objections and suggestions on proposal for settlement. (1) While considering the proposal for settlement, the Commission shall provide an opportunity to the party concerned, the Director General, or any other party to submit their comments, objections, or suggestions, if any, within 21 (twenty one) days. For the said purpose, the Commission would share a summary, not containing any confidential information, comprising of prima facie opinion of the Commission expressed in the order issued under sub-section (1) of section 26 of the Act, findings of the Director General in the investigation report received under sub-section (4) of section 26 of the Act along with details of the competition concerns, alleged contraventions, duly capturing settlement proposal offered by the Settlement Applicant, how they address the competition concerns and any other detail as deemed fit. (2) The comments, objections and suggestions filed by the concerned parties shall contain the following details: a) name and contact details including address, telephone number, email of the concerned party and its authorised representative(s), if any b) statement of comments, objections and suggestions duly authenticated by the authorised representative and supported by relevant documents. c) a summary of the comments, objections and suggestions not running into more than four pages. d) any other information that may assist the Commission in determining the terms of the settlement. 6. Manner of determining the Settlement Amount. - (1) For the purpose of determining Settlement Amount, the Commission would compute base amount which could extend up to maximum amount of penalty that would otherwise have been leviable under section 27(b) of the Act. (2) For the purpose of determining base amount as referred to in sub-regulation (1), the Commission shall be guided by the Penalty Guidelines. (3) The Settlement Amount would be determined by applying a settlement discount of 15% to the base amount computed under sub-regulation (1) and (2). 7. Nature and effect of settlement order. - (1) Without prejudice to provisions of section 53N of the Act, the order passed by the Commission agreeing to the proposal for settlement shall not be construed as a finding of contravention by the Commission against the Settlement Applicant. (2) Filing of Settlement Application or issuance of settlement order by the Commission shall have no bearing on the inquiry under section 26 of the Act in relation to the alleged contraventions, in respect of the other parties to the inquiry who are not part of the settlement proceedings. (3) The settlement order shall be final and binding upon the Settlement Applicant. 8. Assessment of the terms of the settlement. The Commission shall while considering the nature, gravity, impact of the alleged contraventions and for the purpose of assessing the Settlement Application, have due regard to all or any of the following factors, including: (a) the nature of conduct, its type, duration and extent of the alleged contraventions; (b) whether the settlement terms address the alleged contraventions and the same can be implemented effectively and expeditiously besides being easy to monitor; (c) whether the terms of settlement make the markets more contestable; (d) procedural efficiencies, self-executing terms and early correction of market distortions; (e) whether the Settlement Applicant, has previously been found to have contravened any provision of the Act or any investigation or inquiry is pending against the Settlement Applicant in respect of any alleged violation of the provisions of the Act or whether the Settlement Applicant has previously made any settlement or commitment application(s); (f) whether the Settlement Applicant has already modified its conduct and policies which have been found to be in prima facie violation of the Act by the Commission or steps taken by the Settlement Applicant to minimize future violations or lapses; (g) any other factor as may be deemed appropriate by the Commission in the facts and circumstances of the case. 9. Fee under sub-section (1) of section 48A of the Act. - 1. Every application received under sub-section (1) of section 48A of the Act by the Commission shall be accompanied with proof of payment of non-refundable fees as under: (a) Rs. 2,50,000 (rupees two lakh fifty thousand) only in case the Settlement Applicant has a total turnover of up to Rs. 50,00,00,000 (rupees fifty crores) in India in the preceding financial year, or (b) Rs. 10,00,000 (rupees ten lakh) only in case the Settlement Applicant has total turnover exceeding Rs. 50,00,00,000 (rupees fifty crores) and up to Rs. 500,00,00,000 (rupees five hundred crores) in India in the preceding financial year. (c) Rs. 50,00,000 (rupees fifty lakh) only in case the Settlement Applicant has total turnover exceeding Rs. 500,00,00,000 (rupees five hundred crores) in India in the preceding year. 2. The fee can be paid either by tendering demand draft or pay order or banker s cheque, payable in favour of Competition Commission of India (Competition Fund), New Delhi or through Electronic Clearance Service (ECS) by direct remittance to the Competition Commission of India (Competition Fund), Account No. 1988002100187687 with Punjab National Bank, Bhikaji Cama Place, New Delhi- 110066 . 10. Implementation and monitoring of settlement order. Where the Commission is of the opinion that the implementation of the Settlement Order needs monitoring, it may appoint agencies to oversee such implementation in terms of the Competition Commission of India (General) Regulations, 2009 and on such terms and conditions as may be specified by the Commission. 11. Revocation of the Settlement Order. - (1) If a Settlement Applicant fails to comply with the order passed by the Commission under section 48A of the Act or it comes to the notice of the Commission that the Settlement Applicant has not made full and true disclosure during the settlement proceedings or there has been a material change in the facts, the order passed under section 48A of the Act shall stand revoked and withdrawn. Provided that before making an opinion in this regard, the Commission shall give an opportunity to the Settlement Applicant to show-cause, within a period of 15 working days from the date of receipt of the show-cause notice, as to why the Commission should not form an opinion that the Settlement Applicant has failed to comply with the order passed by the Commission under section 48A of the Act or the Settlement Applicant has failed to make full and true disclosure during the settlement proceedings or there has been a material change in the facts, as the case may be. (2) Where the settlement order stands revoked and withdrawn as per sub-regulation (1) above, the Settlement Applicant shall be liable to pay legal costs incurred by the Commission, as may be determined by the Commission, subject to a maximum of rupees one crore which shall be paid in terms of sub-regulation (2) of regulation 9. (3) Such legal costs imposed upon a Settlement Applicant shall be recoverable in the same manner under section 39 of the Act read with the Competition Commission of India (Manner of Recovery of Monetary Penalty) Regulations, 2011, as has been prescribed for recovery of penalty imposed under the Act. (4) Further, where the settlement order stands revoked and withdrawn as per sub-regulation (1) above, the Commission may also restore or initiate against the Settlement Applicant, inquiry or investigation in respect of which the order under section 48A was passed. 12. Power to use information. - (1) Where the Commission has revoked and withdrawn its settlement order in terms of section 48C of the Act read with regulation 11, the Commission and the Director General may rely upon the information and document submitted by the Settlement Applicant in the proceedings under the Act. (2) Where a Settlement Application is rejected or withdrawn, the Commission and the Director General may use the information gathered from sources other than Settlement Applicant in the proceedings under the Act. (3) The Commission may, subject to the provisions of regulation 35 of the Competition Commission of India (General) Regulations, 2009 read with section 57 of the Act, use the information submitted by the Settlement Applicant against other parties to the inquiry who are not part of the settlement proceedings. (4) The facts established against the Settlement Applicant or admitted in any ongoing or concluded proceedings in India or outside India, with respect to the same cause of action, under any law, shall be deemed to be admitted by the Settlement Applicant in respect of the proceedings proposed to be closed under these regulations. 13. Request for Confidentiality. 1. If any party request confidentiality of information or document(s) submitted during settlement proceedings, such request may be filed as per the procedure laid down in the Competition Commission of India (General) Regulations, 2009, as amended from time to time. 2. Such request for confidentiality shall be duly considered in accordance with the provisions laid down in the Competition Commission of India (General) Regulations, 2009, as amended from time to time read with section 57 of the Act. 14. Inspection and certified copies of documents. 1. Notwithstanding anything contained to the contrary in regulation 37 and regulation 50 of the Competition Commission of India (General) Regulations, 2009, inspection and certified copies of documents submitted during settlement proceedings may be granted only to the Informant and the Settlement Applicant. Provided that the inspection and certified copies of the confidential version of such documents shall be granted as per provisions of regulation 35 of the Competition Commission of India (General) Regulations, 2009. 2. Inspection and certified copies of comments received under regulation 5 shall be allowed only after expiry of the period of 21 (twenty-one) days mentioned therein. 15. Powers to determine procedure in certain circumstances. In a situation not provided for in these regulations, the Commission may, for reasons to be recorded in writing, determine the procedure in a particular case. 16. Power to remove difficulties. - In the matter of implementation of these regulations, if any doubt or difficulty arises, the Commission shall have the powers to issue clarifications and specify procedures through circulars or guidelines and the decision of the Commission thereon shall be binding. SCHEDULE-I Undertakings and Waivers I/We, , the Settlement Applicant(s) herein, as a condition for making the enclosed application to the Commission for examining and consideration of the application, hereby declare that I/we agree and undertake that: 1. The Settlement Applicant admits the jurisdiction and right of the Competition Commission of India (the Commission) to initiate proceedings in respect of the alleged contraventions under the Competition Act, 2002. 2. The Commission may enforce any claim(s) against the Settlement Applicant arising from or in relation to any violation of the settlement order passed pursuant to this application. 3. The Settlement Applicant waives its right of taking any legal proceedings against the Commission concerning any of the issues covered in the settlement order that may be passed. 4. The Settlement Applicant further waives the following: a) the findings of fact and conclusions of law; b) appeal or review before the National Company Law Appellate Tribunal or other courts; c) any plea of limitation or laches for initiating or restoring of the proceedings, if the Settlement Applicant violates the settlement order. (Signature of the Settlement Applicant with stamp and seal of the body corporate) Before me. Notary. ANUPAMA ANAND, Secy. [ADVT.-III/4/Exty./803/2023-24]