This article is written by Avni Sharma, a 2nd year student of National Law University Odisha. This article talks about the Competition Act, 1998 and the procedures contained in it.
“And when the law of competition is sometimes for the individual, it is best for the race because it ensures the survival of the fittest in every department”
If a person were to enter a market where the practice of Cartel prevails, it will have to face losses at not less than 25-30 per cent. The Competition Act, 1998 successfully secures the market from becoming anti-competitive by imposing heavy punishments such as a fine of 10% on the worldwide turnover of the business organisation and even to the extent of disqualifying its directors for up to 15 years.
The offences have both civil and criminal counterparts. The civil regime may include prohibition by the courts on abuse of a dominant position or when a third party has been aggrieved due to the actions of the defaulting party. The criminal regime includes convicting individuals involved in offences.
However, the offences are ascertained only after a formal procedure provided by the guidelines in the Competition Act, 1998 (CA98). The procedure begins with the opening of a formal investigation, following which, it is ensured that there is sufficient evidence for the constitution of the offence. The decision is then provided after the parties have duly represented themselves.
Inquiries and Investigations
When the complaint gets registered and it reaches a stage of formal investigations, it is assigned with:
- A designated case team
- A Senior Responsibility Officer (SRO)
The team will help with day to day running of the case and the SRO will make all the necessary authorisations. The Competitions and Marketing Authority (CMA) will send the businesses, a Case Initiation Letter, containing all relevant details. In some cases, it will not be appropriate to issue a case initiation letter at the start of a case, as it may prejudice the investigation. In these cases, the CMA will issue the letter as soon as possible.
Opening a formal investigation
Formal investigations provide a thorough process which helps with ensuring that an offence has been committed in a fair and just manner. In order to establish that infringements have been committed, the CMA is bestowed with certain powers. The major powers include:
- Power to gather information
1.1 Ask for written inquiries
1.2 Power to ask Questions
- Power to enter premises with a warrant
- Power to enter premises without a warrant
- Powers of surveillance
Power to require documents and information
The CMA has powers to enquire and gather information about the documents, specified information. In order to gather information, the CMA can even enter the premises with or without a warrant.
The CMA may send out formal information requests in order to access the information that would seem necessary for the investigation. The information letter will clearly tell the recipient about the nature of the enquiry. The information and examples of the type of documents that CMA may ask for includes internal business reports, copies of emails and other internal data.
These powers also entitle the CMA to ask for documents which have not been written down up till now. The requirement of the documents, is solely based on the discretion of the CMA.
In case the company has any queries regarding the scope of the requirement, it must raise them with the Case Team as soon as the query arises.
The written information request will also contain a deadline within which, the parties have to respond without fail. The CMA holds the authority to impose a fine on the parties who do not comply with the given deadline.
CMA can conduct inquiries about the people having ‘connections with’ the businesses because any of this might amount to substantial information required for carrying out the information.
Power to ask questions
In the process, the CMA is authorised to be provided with information through any media. He is also allowed to ask questions, the extent of which is up to his discretion. If the parties have queries regarding the scope of the questions asked, the Case Team is to be approached immediately.
These powers are bestowed in order to make the investigation process a lot more transparent and makes the proof of the infringement very authentic because all the information has been drawn from first hand sources.
Power to enter premises
Domestic premises as defined under section 28A(9) of the CA98 means (and includes) premises (or any part of premises) used as a dwelling, or also used in connection with the affairs of an undertaking or association of undertakings, or where documents relating to the affairs of an undertaking or association of undertakings are kept.
The CMA has full power to enter these premises, in case it is required by the process of the investigation.
The occupier of the premises holds no power to restrict the CMA from entering the premises where the documents are kept.
Power to enter premises without a warrant
A CMA officer who is authorised by the CMA in writing to enter premises but does not have a warrant may enter business premises in connection with an investigation if they have given the premises’ occupier at least two working days’ written notice.
Power of surveillance
The powers of surveillance are included in the powers to enter a premise. These powers are not only exclusive for the investigation stage but they are extended till the final decision.
Access to lawyers
The fact that the parties are engaged in a legal matter, the trial will only be fair if both sides have access to lawyers. Lawyers will guide the process and also provide due diligence on the legal matters.
Limitation on the use of the powers of investigation
The CMA has powers, but those are subject to certain limitations, which are listen down below:
Legal Professional Privilege
CA98 does not authorise any CMA to disclose privileged information. The CMA cannot require for the production of any privileged information. Privileged information may include a conversation between an attorney and a client.
If a dispute arises during an investigation with regard to whether the communications, or parts of communications, are privileged, a CMA officer may request to keep such communications in a sealed envelope or package. The officer will then discuss the arrangements for the safe-keeping of these items by the CMA pending resolution of the dispute.
The requests or information inquiries made by the CMA cannot force any business to prove against themselves. The businesses need not provide an infringement of law by their side. However, CMA has the power to ask questions that lead to the proof of the case of infringement.
In the course of investigation, there are several documents which have high confidentiality. The CMA has to strictly abide by the guidelines as to non-publishing of confidential information (CI). A deadline will be set for provision of confidentiality representations reflecting the extent of the material provided.
The disclosure of which information may have serious harm on the business, shall be preserved with utmost care. The CMA will have serious implications if there is disclosure of such information.
Human Rights Act, 1998 and Police and Criminal Evidence Act, 1984 (PACE)
Section 7(1) of the Human Rights Act, 1998, states that if a person claims that a public authority has acted or proposed to act against Section 6(1), he may (a) initiate proceedings in the appropriate tribunal or court, or (b) rely on the rights concerned in any legal proceedings or convention right provided he is (or would be) a victim of such unlawful act.
The CMA will be prosecuted if any act is unlawful and not up to the mark of predefined standards.
In Police and Criminal Evidence Act, 1984, the standards have been set in order of which, the conduct of the CMA, must lie. Otherwise, action will be initiated against the person.
Sanctions against the businesses for non-compliance along with the powers of investigations, have both civil and criminal repercussions. The sanctions are:
- Requirements of a formal notice are not complied with.
- Intentional obstruction in the investigation of an office.
- Destroying, disposing, falsifying or concealment of any necessary documents.
- Intentionally, providing false information in order to mislead the investigations.
The penalties are generally financial in nature, but in case of any of the offences above listed, the person may also have to face imprisonment upto 2 years.
The European Commission investigates evidence or allegations of anti-competitive behaviour contrary to Articles 101 or 102 TFEU by companies that has an impact in more than one EU country.
The proceedings under the Competition Act, 1998 are derived from the laws of competition of Europe.
Complaints and Super-Complaints
Competition law provides for serving the interests of the consumer in various ways because the act was made for consumer welfare. The ways in which consumer interests can be addressed can be:
- Super complaints
Consumers may lodge a formal complaint to the relevant national competition authority or to the European Commission alleging that an infringement of the competition laws has taken place. Consumers have the liberty to present their views to the competition authorities or to the European Courts where the alleged organisations can be questioned and consumer grievance can be addressed. The complaint may also help in suing the organisation for the offences committed by them.
The UK Enterprise Act, 2002, brought in the concept of Super Complaints. Under Section 11 of the Act, certain designated bodies may complain to the OFT that any feature, or combination of features, of a market in the United Kingdom for goods or services is, or appears to be, significantly harming the interests of consumers.
The Officer of Fair Trading (OFT) has to publish the response in a matter of 90 days and the response. The responses may include, enforcement actions, market studies or even a market investigation to the Competition Authorities, dismissal of the complaint. The commentators have praised the process of Super Complaint highly, as it not only brings administrative changes but also engages people into a dialogue regarding the procedures.
Opinions and Informal Advice
In 2010, the OFT introduced the short for opinion, in order to guide the competitors in a market against not only indulging in anti-competitive activity but also helping them in their business. The advice and opinions include providing application of competition law, prompt guidance, resolving novel questions among the competitors. It constitutes an important tool in order to establish fair practices in the trade.
The procedure contains several important parts including Statement of objections, involving third parties, responding to statements of objections, considerations, letters of facts, supplementary of objections, draft penalty statement and the infringement decision is then rendered. Let us have a look at each step one by one.
Statement of objection
Statement of objection includes a provisional view and proposed steps in the process. The party who has been accused will be provided with a fair chance to go through the exact challenges that have alleged against them. It will include facts and legal economic assessment. It will also issue the directions to stop the infringements if any.
The publication of statements of objection will be subject to the CA98 guidelines. Along with issue of Statement, the addressee will also be mentioned who will have the opportunity to access the file. The addressee will also have to inspect the file and may provide any third parties who may be able to assist materially the assessment of a case with an opportunity to submit written representations.
Response to the statement of objection
The recipient will have a chance to represent his side in front of the Competition Decisions Committee by making written and oral submissions. The Procedural Officer will chair all the Oral Hearings. The transcript of this oral hearing is preserved and the facts are then verified.
Following the oral hearing, the Procedural Officer will report to the Competition Decisions Committee, indicating any procedural issues that have been brought to the attention of the Procedural Officer.
The procedural officer is the authority to which the complaints for procedure can be addressed. He can review the decisions of the PSR, upto the extent of:
- Deadlines for the response from the parties in order to receive the information requests, to provide written representations on the Statement of Objection or Supplementary Statement of Objections or to provide non-confidential versions of documents,
- Requests for treatment of CI in documents on the PSR’s case file, in a Statement of Objections or in the decision given at the end of the procedure,
- The disclosure and non-disclosure of certain documents is requested,
- Oral hearings and issues related to them,
- Other significant procedural issues that may arise during the investigation.
The review by Procedural officer will be restricted to the above-listed situations. Besides, the procedural officer will chair any oral hearing along with preparing the report of fairness.
The steps following the above representations are:
- Letter of facts
- Supplementary statement of objections
- Draft penalty statement
- Infringement decision
The Competition Decisions Committee considers all the documents, oral hearing Transcripts provided. It may also take advice from economists, lawyers etc.
Letter of Facts
If the committee finds any new evidence, appropriate time is provided to the recipient in order to respond to such evidence. Further, the time allowed for responding depend on the volume and complexity of the new evidence.
Supplementary Statement of Objections
The Competition Decision Committee will give the addressee another opportunity to respond in writing and orally, and to inspect new documents on the file.
Draft Penalty Statement
This will set out the key aspects relevant to the calculation of the penalty that we propose to impose on that party, based on the information available to us at the time. This also duly includes the reasoning given by the committee that compelled them to take the decision.
Finally, the relevant authority, after seeking representations on confidentiality from the addressee(s) and third parties, if required, will publish a summary and a non-confidential version of the infringement decision.
Commitments are statements made by the parties in order to promise their conduct in the future. The Section 31A of the CA98 mentions, that the committee may consider the commitments made by the parties and may reduce the penalty and punishments.
Under section 35 CA98, CMA has the power to direct a party to comply with temporary directions (referred to as ‘interim measures’) till the investigation is not completed. In summary, PRS may require a party to comply with temporary directions where:
- the investigations have commenced but not concluded, and
- it considers it necessary to act urgently to protect the public interest or to prevent significant damage to a person or category of persons.
Directions and provisions in practice
In terms of the procedure:
- Any application made to the case team should be in writing and must provide all the possible details as to why the grounds set out in section 35 CA98 are met. The Case Sponsor may provisionally decide to give interim measures direction (a provisional decision which may follow a complaint or be on our own initiative). PRS will write to the party to which the directions are addressed setting out the terms of the proposed directions and the reasons for giving them.
- PRS allows parties to have a reasonable opportunity to make representations.
- Except the parts that are confidential, parties are allowed by PRS to inspect the documents in the file.
- After taking into account all the representations and circumstances of the case, and having satisfied ourselves as to the adequacy of the evidence that is being relied upon, PRS will make the final decision and inform the applicant and/or any Formal Complainants and the party against which the order is being sought. The responsibility is on the Case Sponsor to decide whether to give an interim measures direction or not, which is subject to the approval of PSR senior management.
- PRS will publish any interim measures direction it issues.
Persons who may be subject to directions
All the parties involved in the matter will be subject to the directions of the PRS. The compliance of the provisions must be taken due care of.
Enforcement of compliance with directions
The penalty guidelines and CMA’s leniency policy will be applied under CA98 for enforcement of the penalties and orders. Leniency applications need to be made directly to the CMA (in particular, since PRS does not have concurrent powers under EA02 in relation to the prosecution of the cartel offence, and cannot grant immunity from prosecution in relation to this offence).
Maximum amount of liability
The liability needs to be admitted first. After the admission, in order to ascertain the amount of settlement, the amount of maximum liability is ascertained on the basis of nature of the offence.
The Guidance as to the appropriate amount of a penalty
The guidance as to the appropriate amount needs to be sought from the CMA.
The CMA has prescribed a six-step approach which is procedurally established and has also been reformed to adjust the requirements of the process.
- Step 1 – The starting point needs to be determined.
- Step 2 – The duration needs to be adjusted.
- Step 3 – Aggravating and mitigating factors need to be adjusted.
- Step 4 – Specific deterrence and proportionality needs to be adjusted.
- Step 5 – Efforts to prevent the maximum penalty is to be exceeded and double jeopardy needs to be avoided.
- Step 6 – Reductions under the CMA’s leniency programme and for settlement agreements need to be avoided.
This six step approach helps the CMA in carrying out a smooth investigation.
Immunity for small agreements and conduct of minor significance.
Small agreements and conduct of minor significance is granted immunity because they are are not considered at the level optimum to create binding decisions by the companies. This immunity not only provides help to the companies, it also helps the CMA in not looking at the insignificant aspects of the investigation.
Leniency refers to the relaxation and immunity from fines and penalties. It also includes relief from criminal prosecution. The system also protects from director disqualification. The step taken by the OFT in the direction of Leniency will help in the enhancement of the enforcement procedure in the Cartel offence.
Key features of the leniency system
- The hypothetical cases on requests will be available on a no-name basis.
- The legal advisors are given the ability to determine whether immunity should be available to their client prior to the client’s identity is revealed.
- ‘Markers’ are important for the formal agreement of leniency protection. The availability of the same is a key feature in the present situation.
- Criminal immunity is guaranteed for all cooperating current and former employees and directors in cases where the applicant informs the OFT of cartel activity that it was not previously investigating.
- There are immunities available or reduced penalty for cases where applicant is the first one to approach the OFT. provided there is a pre-existing investigation going on.
- The reduction of any penalty that might be imposed on applicants who are not the first to apply and there is a possibility of granting individual immunity to some cooperating current or former employees and directors in such circumstances.
- There is a commitment that the OFT will not apply for a Competition Disqualification Order against any current or former director of a company which benefits from leniency in respect of the activities to which the grant of leniency relates.
- Oral applications are also possible under appropriate circumstances.
- Applications by undertakings or by an individual is also possible.
- The corporate and criminal immunity will not be granted smoothly, because of the high threshold of standard of proof being a corecer in form of an individual or an undertaking.
Eligibility of different types of leniency
There are three types of immunity under the leniency system:
Type A immunity includes cases where there is no pre-existing CMA investigation. This immunity will not eligible for those who have coreced others to enter into a cartel.
Type B immunity is the one where the CMA is already conducting an investigation into cartel activity, the first applicant to provide additional evidence of the cartel prior to the CMA issuing a statement of objections is eligible for this immunity.
In addition it must:
Accept that it engaged in cartel activity.
Cease its participation in the cartel.
Agree to provide continuous co-operation throughout the CMA’s investigation (and any subsequent appeals).
Have not been coerced by the take part in the Cartell.
Type C immunity is applied in circumstances where another undertaking has already reported the cartel activity (or where the applicant has coerced another undertaking to participate in the cartel), only this type of leniency is available.
Checking the availability of leniency and initial application
Seeking Confidential Guidance
OFT is supposed to provide its views, which is considered to be binding in nature,in case the discussion is followed-up by an application within a reasonable time. Further provided that the information was given when the advice was sought was not false or misleading and there has been no material change of circumstance.
Conducting Internal Investigation
An internal investigation will be conducted by the OFT in order to ascertain the authenticity of the application.
Application of legal privilege
The OFT will not as a condition of leniency require waivers of legal professional privilege (LPP) over any relevant information in either civil or criminal investigations.
Maintaining confidentiality and securing evidence
Utmost confidentiality will be maintained and the evidence will also be secured in order to make the application move further.
Checking the availability of leniency and initial application.
Ascertaining Type A immunity
A confirmation from the legal advisor is required. It is ascertained that there is ‘concrete basis’ for cartel activity. A genuine intention to confess must be present.
When Type A is not available
The applicants are free to apply in any other option.
Cooperation throughout investigation
It is expected that the parties maintain cooperation with the authorities examining and investigating the process. Immunity is provided only after a due procedure and the parties must cooperate with the authority in order to attain the same.
Leniency and No Action Agreements
A proper determination of whether a person should receive a no-action or comfort letter cannot generally be made until at or near the conclusion of the OFT’s criminal investigation. It may not be necessary for all lines of enquiry to have been completed.
Disclosure and information
The information which might have an impact on the overall business, will not be disclosed. Rest information which is non-confidential will be disclosed.
Issues relating Criminal Proceedings
The major issue relating to the Criminal Proceedings are the interactions between the cartel offence in the UK and the Commission Leniency Notice.
The OFT is aware that some practitioners might have a concern that undertakings approaching the Commission under the Commission Leniency Notice might inadvertently increase exposure for the undertaker’s current and former employees and directors to the risk of prosecution in the UK for the cartel offence, in those cases where the infringement had some effect on the UK.
Other procedural issues: leniency plus/penalties
The major issues relating to procedures are mainly related to Leniency are Leniency Plus and Penalties. An undertaking co-operating with an investigation by the OFT under CA98 in relation to cartel activity in one market (the first market) may also be involved in completely separate cartel activity in another market.
There are issues regarding the calculations of penalties due to the availability of unliquidated damages. These might come up as issues because the calculations might end up being complicated.
‘But For’ Test
Where a Type B or Type C applicant that is granted a reduction in financial penalties, has provided evidence of previously unknown facts relevant to the gravity or duration of the infringement, the OFT will not take account of such information to the detriment of the applicant when assessing the appropriate amount of penalties.
Bad faith / withdrawal of leniency / revocation of no-action letters
The act of destruction of materials which were necessary for the investigations to be carried out. These also include unauthorised disclosure of information.
Withdrawal of Leniency
Where the applicant has failed to cooperate or otherwise failed to meet the conditions, the withdrawal of leniency is applied.
Revocation of no-action letters
A no-action letter may be revoked, if
- The recipient of a letter ceases to satisfy in whole or in part any of the relevant conditions, or
- The recipient of a letter has knowingly or recklessly provided information that is false or misleading in a material particular.
In the process, ‘Settlement’ is a stage where the businesses admit on committing the offence and the administrative process is charged on them.
Discretionary nature of settlement
In determining whether a case is suitable for settlement the CMA will have regard to a number of factors. The primary factor is whether the CMA considers that the evidential standard for giving notice of its proposed infringement decision is met. The factors make it discretionary on the part of the CMA.
Requirements of a settlements
The admission of liability is the foremost requirement of a settlement. The infringing behaviour will be ceased in order to make the liability and penalty. The CMA will then make sure that the penalties will be paid in due time.
After the approval of the settlement is done, the penalty statements are drafted and the further process of enactment is carried out.
The statistical analysis shows that the Authorities have been fair in their proceedings and have displayed the penalty calculations have undergone transparent procedures.
Appeals against the decision imposing penalties
The appeals for decisions go to the Competition Appeal Tribunal. The CAT is a specialist independent judicial body which was created by Section 12 of the Enterprise Act, 2002. Further details are provided in Schedule 2 to the Enterprise Act, 2002.
A basic amount, called the ‘base fine’, which is calculated first according to the volume of commerce affected. This base fine is then adjusted for a number of aggravating and mitigating circumstances. Aggravating factors include coercive measures, role of the officers, continuation of offence etc.
CAT can increase penalties
The Competition Appeal Tribunal is authorised to increase penalties in case the offences have been proved twice against the appellants. The appellants have no right to claim against the increase of the penalties.
The Cartel Offence and Company Director Disqualification
Definition of Cartel Offence
Cartel offence was a new type of statutory fraud which was brought about with the Enterprises Act, 2002.
Cartels can take many forms but essentially consist of agreement or collusion among two or more competing commercial enterprises designed to increase their profits by either:
- Fixing prices,
- Sharing markets,
- Restricting output of supply or production, or
- Collusive tendering/bid rigging (who should win a contract).
Prosecution guidance is done in two steps by the full code test:
- Evidential Stage
- Public Interest Stage
At this stage the CMA must be satisfied that there is a presence of a solid case of Cartel against the parties in order to provide a realistic view. At this stage, the CMA must also consider the case of the defence and how it is likely to affect the prospects of conviction.
Public Interest Stage
This stage basically includes the prosecution stage. It is not necessary that this has to be done only after the evidential stage, it can even happen simultaneously. The CMA ensures that there is public interest involved and the decisions will be taken accordingly. The intensity of the offence is measured according to the harm caused to the public. The culpability of the parties is also ascertained. The impact on the community is also taken into consideration and it is checked whether prosecution is a proportionate response to all the answers to the above question.
Circumstances in which the cartel offence is not committed
There are circumstances in which Cartel offence is not committed. After the parties are able to prove this case, they are exempted from the liabilities so charged and are set free to continue their market operations.
There are mainly three types of defences, only one of which needs to be proved in every given case. First, the party is able to prove that there was no intention of creating such an agreement which would be detrimental to the customers.
Second, the proof of not knowing that there was no intent of hiding this from the customers.
Third, the party took reasonable steps to disclose this to the customers.
Apart from this, there is no scope of any other.
Company Director Disqualification
Grounds of Disqualification
The directors in case of proof of misconduct may be disqualified from the Board immediately in cases where:
- Wrongful trading
- Failure to comply with competition laws
Section 9C of the Act includes a procedure:
- The grounds of the proposal of a Competition Disqualification orders are ascertained.
- The summary of evidence is produced.
- The copy of written submissions is acquired.
- The other necessities are fulfilled.
- An assurance that, if a Competition Disqualification Undertaking offered by that person is accepted by the CMA before proceedings are issued, the CMA will not seek to recover any costs from that person;
- A statement that once a CDO application has been made to the court, the award of costs will be at the discretion of the court and that the general principle is that costs will be awarded against the unsuccessful party.
Conspiracy to defraud under Common Law
Conspiracy to defraud is an agreement where two or more persons enter into an agreement to deprive another person of his or her natural rights.
The House of Lords in their decision in the case of Norris v Government of the United States of America and others, said that price-fixing is constituted as criminal conspiracy to defraud. It will be considered as final by the House of Lords. The Cartel offence is officially a conspiracy to defraud under Common Law.
The term ‘concurrency refers to the position under which, the sectoral officers share the power of implementing competition policy with the designated competition authority. The regulations for concurrency are provided below.
Concurrency Regulations and Concurrency Guidelines
The Competition Act, 1998 includes the regulations to be followed in concurrency:
- Information regarding potential Cases must be preserved.
- If a competent person wants to exercise its prescribed functions, it must submit in writing about doing so.
- The persons must agree with the rules laid under Part 1.
- Avoidance of double jeopardy is necessary.
- The competent persons must transfer the case to the transferee.
- Each competent person must share crucial information relating to the case with other competent persons.
UK Competition Network
The purpose of the UK competition Network was to give effect to the Enterprise Regulatory and Reform Act, 2013. The UKCN is going to promote Strategic Dialogue, helps in enforcement cooperation under competition law, enhances capabilities and helps in sharing best Practices under the Act. It also helps with Advocacy and Annual Concurrency Reports within the Competition Network.
Concurrency arrangements in Practice
Concurrency regulations as mentioned above will be applied in practice. They are not meant to be exhaustive in providing guidance but are there to be provide consistency in decision making on a regular basis. They also facilitate the appeals procedure which helps in UKCN Practice and Procedure. The competition regulations are also facilitated by the concurrency practice.
Report on the operation of concurrency arrangements
In 2014, the government of UK introduced a concurrency regime which later turned into an annual report system. The report of 2019 understands the operation of concurrency arrangements. However, as the CMA has indicated in previous reports, concurrency should not solely be evaluated on the basis of numbers of enforcement cases. Markets work also forms an important part of the concurrency arrangements and both the CMA and regulators have carried out significant markets work during this reporting period.
The decisions which have reasonable grounds of appeal to the Competition Appeal Tribunal (CAT) shall move for an appeal. It will also include decisions where parties are unsatisfied with the final decisions. The parties must know that the appellate authority is authorised to increase the penalty amount if found guilty.
Successful appeals against explicit non-infringement decisions
The appeals can prove successful if there is an explicit non-infringement. It must be proved beyond all reasonable doubt.
Successful appeals against implicit non-infringement decisions
In certain cases, the appeals with implicit non-infringement decisions are also successful by means of evidence.
Unsuccessful appeals by third party complainants
If a third party complaints are unsuccessful, then they lose the chance to appeal.
Competition Appellate Tribunal Rules 2013
The rules include regulations regarding all the possible requirements under an appeal.
- Commencement of appeal proceedings.
- Response to appeal proceedings.
- Intervention and consolidation forum.
- Claim for damages.
The procedure contains:
- Notice of appeal (this must be filed within 2 months of the decision by the CMA).
- Registrar of CAT will send the notice to the respondent.
- Filing of a defence by the respondent.
- Convening of a case management conference.
- A timetable of the case is fixed.
- The procedure is tried to be completed in six months but it might take longer than expected.
Powers of the CAT
- Confirm or set aside on all parts of the case.
- Remit the matter to the CMA.
- impose, revoke or vary the penalty.
- Make any decision which CMA has already made.
- Give directions to the CMA.
- Dismiss the appeal or quash the whole or part of the appeal.
Cost appeal has been amended to reflect the entry into force of the competition provisions of the Enterprise and Regulatory Reform Act, 2013 (ERRA). On 1 April 2014, the CMA took over all the competition functions of the Office of Fair Trading (OFT) and the Competition Commission, which ceased to exist. However, this note continues to refer to the decisions and actions of these former authorities, taken up to 31 March 2014.
The appellate procedure has been reformed from time to time in order to fit the standards and needs of the appellants.
Can an Article 267 reference be made where a court or tribunal is applying the Competition Act, 1998?
Yes, an Article 267 reference be made where a court or tribunal is applying the Competition Act, 1998.
Which courts or tribunals in the UK can make Article 267 reference in a case under the Competition Act, 1998?
Article 267 of TFEU allows National Courts to request preliminary rulings from the Court of Justice of the European Union. According to the view of the United Kingdom, the reference is also open to the Courts and Management Authority.
The Competition Act, 1998 covers all the relevant requirements for an offence of Cartel. Cartel as an offence kills the vibe of a fair competitive market where merits are counted as baselines of winning in a market. The offence is detrimental for the customers as well, as they do not get competitive prices and the markets are unfluctuating at all times. The customers suffer the most by the effect of this offence, which is why they have been granted the appropriate rights. These offences have seen a significant fall after the implementation of Competition Act, 1998.
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