The CCI’s power to issue interim relief: Lost in the interim?

The Competition Commission of India (CCI), armed with a civil court’s power, can issue interim orders to temporarily restrain anti-competitive conduct that occurs or is about to occur during the course of an inquiry. However, with only four interim orders issued in the past 11 years, this power has been seldom used by the CCI. Much of its underutilization could be attributed to the high standard that the CCI needs to meet while passing such an order. In this piece we assess the probable reasons of the limited usage of interim powers and the need to revive its use in appropriate cases..A heightened threshold for application.Section 33 of the Competition Act, 2002 (Act) specifies the necessary conditions for passing an order for interim relief. The provision stipulates two main conditions, firstly, the order granting interim relief could only be “during an inquiry”, and secondly, there should be “satisfaction” of the CCI that any contemporaneous or about-to-occur future conduct of a party is anti-competitive. Once such satisfaction by the CCI has been established while the case is at the inquiry stage, the CCI could pass orders temporarily restraining such party from carrying such an act..The first and seminal decision by the Supreme Court of India interpreted the above set of cumulative requirements. To a great extent, the words “during an inquiry” goes on to form the basis of the Court's observations. By way of background, before initiating an investigation against a party, the CCI is statutorily required to form a prima facie view, colloquially referred to as a preliminary view, that the party is in contravention of the Act. As per the CCI’s framed regulations, an inquiry is said to commence only once the CCI’s prima facie view is formed and the Director General, the investigative arm of the CCI, is directed to commence investigation. Thus, relying on the CCI’s definition of the term “inquiry”, the Supreme Court held that the CCI cannot issue interim orders unless a prima facie case of contravention has been made. The Court also ruled that the CCI’s satisfaction in deciding to pass an interim order must be of a higher degree than the prima facie view required to initiate an investigation against a party. The level of satisfaction required for issuing interim relief has to be over and above the satisfaction at a prima facie level required to initiate an investigation..The other two conditions laid down by the Court were that such an order of interim relief must be a) necessary, and b) there must be an apprehension of irreparable and irreversible damage to the party, or competition in the market. Apart from laying down the standard of satisfaction and the stage at which an order for interim relief could be passed, the Court also specified that this power must be used in compelling and exceptional circumstances..Decisional Practices.With such high standard of satisfaction required, the CCI has used this power sparingly and possibly only where smoking-gun evidence has been available. One of these instances is the case of G Krishnamurthy v. Karnataka Film Chamber of Commerce & Ors, where crucial evidence of a YouTube video proved that a press meet had been attended by all the opposite parties wherein a common intention to prevent the release of a dubbed movie was demonstrated. The CCI passed an interim order restraining the opposite parties from hindering the release of another film..In another case involving intertwined issues of patent licensing and anticompetitive conduct by Mahyco Monsanto Biotech (India) Limited and its affiliate/subsidiaries (Monsanto), the Commission was convinced that interim relief was necessary. Monsanto, which was found to be prima facie dominant, sought to invoke those very terms of the license agreement which the Commission had found to be prima facie unfair and abusive. The CCI found this to be meeting the higher-than-prima facie satisfaction criteria. Monsanto sought to invoke certain post-termination obligations arising out of the license agreement that prevented the complainant from selling the seeds containing Monsanto’s patented technology. Given that it takes 5-7 years to develop such seeds, the CCI concluded that effecting the clause could cause irretrievable harm to the complainant and Indian farmers dependent on such seeds. This was notably one of the exceptional cases/circumstances where interim relief was felt warranted by the CCI..While a final order is pending in this case, the rationale behind passing interim relief in the Monsanto case appears to be that a) the CCI was sure that the apparently anticompetitive clauses are being invoked, and that b) they will have a long lasting impact on the market..An exceptional but necessary tool.Given the higher threshold of satisfaction required before issuing interim relief, the CCI may likely be disincentivized to use interlocutory powers. The CCI could be wary that exercising such power could effectively foreclose its ability to ultimately dismiss the contravention claim after a detailed investigation by the DG. However, given that interim relief is granted based on a tentative opinion upon a preliminary assessment, in the midst of an ongoing investigation, reversal of stand at the stage of a final order is not only possible, but acceptable..It is noteworthy that in SAIL, the Supreme Court, while laying down the higher standard three-step test, was considering “ex-parte” interim orders. This implies that the three requirements, including the need for a higher degree of satisfaction, are necessary before passing an “ex-parte” order where the opposite parties are not provided an opportunity to present their case. However, in its current practice, the CCI usually hears both parties before reaching its decision, and thus the possibility of error of judgment is reduced significantly. Therefore, with its current practice of hearing the either side, the CCI may be able to better judge the arguments of the parties in determining the three-step test before passing interim orders..Given the fast pace in which markets function and long-life cycle of a case running into several years, interim relief is an important tool to prevent any immediate loss to the competitive landscape. It may be worthwhile to notice the marked shift in the trend of various other countries in making a renewed effort to further utilise the interim relief framework in competition law matters. For instance, the European Commission issued interim measures against Broadcom in October 2019, and Commissioner Vestager highlighted the pivotal role of interim measures in enforcing competition laws in a quick and effective way. Furthermore, in January 2019, the French competition authority imposed interim orders against Google’s conduct within online advertising markets, and Germany is in the process of amending its antitrust laws to bolster the use of interim measures against digital platforms..It would serve the Indian competition regime well if CCI were to follow suit, especially in the peculiar circumstances presented by the COVID-19 pandemic, which has disrupted the demand-supply mechanism in various sectors and resulted in extreme volatility of product prices. The impact of this pandemic, and the concurrent lockdown, is projected to be long-lasting which could lure players into anticompetitive conduct. Given the situation, there is a need for proactiveness in granting interim relief where any anticompetitive conduct could further dampen the economy, thereby undermining the wider objective of promoting competition..Pending the outcome of inquiries, which potentially run into several months, if not years, the CCI must consider using the interim relief powers actively to maintain effective competition, and avert irreversible damage to the markets and economy..Pranjal is a Principal Associate and Radhika is a Senior Associate at the competition law team of Khaitan & Co.