THE COMPETITION COMMISSION OF INDIA
NOTIFICATION
The Competition Commission of India (Lesser Penalty) Amendment Regulations, 2017 (No. 1 of 2017)
New Delhi, the 8th August, 2017
No. L-3(4)/Reg-L.P./2017-18/CCI.—In exercise of the powers conferred by section 64, read with section 46 and clause (b) of section 27 of the Competition Act, 2002 (12 of 2003), the Competition Commission of India hereby makes the following regulations to amend the Competition Commission of India (Lesser Penalty) Regulations, 2009, namely:—
1. Short title and commencement.—
(1) These regulations may be called the Competition Commission of India (Lesser Penalty) Amendment Regulations, 2017.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Competition Commission of India (Lesser Penalty) Regulations, 2009,—
(1) in regulation 2,—
(a) in sub-regulation (1),—
(i) for clause (b), the following clause shall be substituted, namely:—
‘(b) “applicant” means an enterprise, as defined in clause (h) of section 2 of the Act, who is or was a member of a cartel and includes an individual who has been involved in the cartel on behalf of an enterprise, and submits an application for lesser penalty to the Commission; ’;
(ii) after clause (g), the following clause shall be inserted, namely:—
‘(ga) “Party” includes an enterprise or person defined in clauses (h) and (l) of section 2 of the Act, respectively, against whom inquiry or proceeding is instituted and shall include the Central Government, any State Government or any statutory authority and shall also include any person permitted to join the proceedings;’;
(b) in sub-regulation (2), for the words, figures and brackets, “the Companies Act, 1956 (1 of 1956)”, the words, figures and brackets “the Companies Act, 2013 (18 of 2013)” shall be substituted;
(2) in regulation 3,—
(a) in sub-regulation (1), in clause (b), for the words, brackets and figures, “violation under sub-section (3)”, the words “contravention of the provisions” shall be substituted;
(b) after sub-regulation (1), the following sub-regulation shall be inserted, namely:—
“ (1A) Where the applicant is an enterprise, it shall also provide the names of individuals who have been involved in the cartel on its behalf and for whom lesser penalty is sought by such an enterprise.”;
(3) for regulation 4, the following regulation shall be substituted, namely:—
“4. Grant of lesser penalty.—Subject to the conditions laid down in regulation 3, the applicant and individual mentioned in sub-regulation (1A) of regulation 3 shall be granted benefit of lesser penalty than leviable under clause (b) of section 27 and section 48 of the Act, as the Commission may decide, in the following manner, namely;—
(a) The applicant and individual mentioned in sub-regulation (1A) of regulation 3 may be granted benefit of reduction in penalty upto or equal to one hundred percent, if the applicant is the first to make a vital disclosure by submitting evidence of a cartel, enabling the Commission to form a prima-facie opinion regarding the existence of a cartel which is alleged to have contravened the provisions of section 3 of the Act and the Commission did not, at the time of application, have sufficient evidence to form such an opinion:
Provided that the Commission may also grant benefit of reduction in penalty up to or equal to one hundred per cent, to the applicant and individual mentioned in sub-regulation (1A) of regulation 3, if the applicant is the first to make a vital disclosure by submitting such evidence which establishes the contravention of the provisions of section 3 of the Act, by a cartel, in a matter under investigation and the Commission, or the Director General did not, at the time of application, have sufficient evidence to establish such a contravention.
(b) The applicants who are subsequent to the first applicant may also be granted benefit of reduction in penalty on making a disclosure by submitting evidence, which in the opinion of the Commission, may provide significant added value to the evidence already in possession of the Commission or the Director General, as the case may be, to establish the existence of the cartel, which is alleged to have contravened the provisions of section 3 of the Act.
Explanation.—For the purposes of these regulations, “added value” means the extent to which the evidence provided enhances the ability of the Commission or the Director General, as the case may be, to establish the existence of a cartel, which is alleged to have contravened the provisions of section 3 of the Act.
(c) The reduction in monetary penalty referred to in clause (b) shall be in the following order—
(i) the applicant and individual mentioned in sub-regulation (1A) of regulation 3 marked as second in the priority status may be granted reduction of monetary penalty upto or equal to fifty percent of the full penalty leviable; and
(ii) the applicant and individual mentioned in sub-regulation (1A) of regulation 3 marked as third or subsequent in the priority status may be granted reduction of penalty up to or equal to thirty percent of the full penalty leviable. ”;
(4) in regulation 5,—
(a) in sub-regulation (1), for the words, “within three working days”, the words “within five working days” shall be substituted;
(b) in sub-regulation (4), for the words, “within a period of fifteen days of the first contact”, the words, brackets and figures “within a period of fifteen days from the date of communication of direction under sub-regulation (2)” shall be substituted;
(5) for regulation 6, the following regulation shall be substituted, namely:—
“6. Confidentiality.—Notwithstanding anything contained in the Competition Commission of India (General) Regulations, 2009, the Commission or the Director General shall treat as confidential,—
(a) the identity of the applicant; and
(b) the information, documents and evidence furnished by the applicant under regulation 5: Provided that the identity of the applicant or such information or documents or evidence may be disclosed if,—
(i) the disclosure is required by Law; or
(ii) the applicant has agreed to such disclosure in writing; or
(iii) there has been a public disclosure by the applicant:
Provided further that where the Director General deems it necessary to disclose the information, documents and evidence furnished under Regulation 5 to any party for the purposes of investigation and the applicant has not agreed to such disclosure, the Director General may disclose such information, documents and evidence to such party for reasons to be recorded in writing and after taking prior approval of the Commission.”; (6) after regulation 6, the following regulation shall be inserted, namely:—
“6A. Inspection of documents.—Notwithstanding the confidentiality under regulation 6, the provisions of sub-regulations (1), (3) and (4) of regulation 37 and the provisions of regulation 50 of the Competition Commission of India (General) Regulations, 2009, to the extent they relate to inspection, shall become applicable to the non-confidential version of the information, documents and evidence furnished by the applicant under regulation 5, after the Commission forwards a copy of the report containing the findings of the Director General to the party concerned:
Provided that such party shall not disclose the information, documents and evidence so obtained other than for the proceedings under the Act.”;
(7) in the Schedule, in clause (g), for the words, “affected by the alleged cartel”, the words “affected in India by the alleged cartel” shall be substituted.
SMITA JHINGRAN, Secy.
[ADVT.-III/4/Exty./193/17]
Note : The principal regulations were published in the Gazette of India, Extraordinary, Part III, Section 4 vide Notification No. L-3(4)/Reg-L.P./2009-10/CCI, dated the 13th day of August, 2009.
