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Trends and climate

Trends

Have there been any recent changes to the cartel regime? If so, have they had a significant impact on enforcement activity?

There have been no changes to the cartel regime since the Competition Act 2002 entered into force on May 20 2009.

Are there any proposals to reform or amend the existing cartel regime?

The Competition Commission recently completed a public consultation process regarding its proposed amendments to the Competition Commission of India (Lesser Penalty) Regulations 2009. These regulations prescribe how Section 46 of the Competition Act – which provides for a lesser penalty for a leniency applicant – should be applied. The proposed amendments are intended to provide stakeholders with further clarity and authorise the director general to confront any party during the course of the investigation with information submitted by a leniency applicant in the interest of the principles of natural justice, for reasons to be recorded in writing, irrespective of whether the applicant has agreed to such disclosure. However, such disclosure can be made only towards the end of investigation.

Have there been any recent key cases?

The Competition Commission recently passed its first final order in a leniency application case involving the cartelisation of tenders floated by Indian Railways for the supply of brushless DC fans and other electrical items (Case 3/2014, Order January 18 2017). The penalty levied on the leniency applicant was reduced by 75%. Following the initiation of the investigation, the company disclosed vital evidence which had aided in the establishment of the cartel. The commission also granted a similar reduction of the company director’s penalty. The commission opined that if the party had made a voluntary disclosure before the commencement of the investigation, it would have enjoyed a further reduction in the penalty.

In a landmark judgment (Excel Crop Care Ltd v Competition Commission, Civil Appeal 2480/2014, May 8 2017) involving cartelisation by certain agro-chemical companies in the market for aluminum phosphide tablets used to preserve food grains, the Supreme Court held that turnover for the purposes of penalties in cartel cases should be based on relevant turnover (affected turnover), not the turnover of the entire company, which may be multi-product.

Legal framework

Legislation

Which legislation applies to cartels and what are the relevant substantive provisions?

The Competition Act 2002 applies to cartels. Among other things, the act prohibits agreements which cause or are likely to cause an appreciable adverse effect on competition (AAEC) in India.

The term ‘agreement’ has been widely defined under the act and includes any arrangement, understanding or action in concert, whether such agreements are formal or in writing or intended to be enforceable by legal proceedings.

Cartels, as defined under the act, are agreements between competitors (also known as ‘horizontal agreements’) to fix prices or limit output or share markets or indulge in bid rigging. The act presumes that such an agreement will cause an AAEC. Once the agreement to indulge in prohibited conduct is established, the onus shifts to the charged parties to rebut the presumption of AAEC. However, efficiency-enhancing joint ventures are an exception to the presumptive rule.

In order to determine whether an agreement causes or is likely to cause an AAEC, the commission shall consider all or any of the following factors:

  • creation of barriers to new entrants in the market;
  • driving existing competitors out of the market;
  • foreclosure of competition by hindering entry into the market;
  • accrual of benefits to consumers;
  • improvements in production and distribution of goods and services; and
  • promotion of technical, scientific and economic development.

Unless the presumption of AAEC is rebutted by the charged parties, the commission will order the prohibition of the cartel and impose penalties, as provided under the act.

Institutions

Which bodies are the relevant regulatory and prosecutory authorities and what are their specific roles?

While the Competition Commission is the relevant prosecuting authority under the Competition Act, it intervenes in the functioning of the market only when it notices anti-competitive agreements or abuse of dominant position. In addition to the commission being a market watchdog, there are various other sector-specific regulators in India.

The commission is statutorily mandated to:

eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India.

The commission, which is guided by the principles of natural justice, can regulate its own procedure. For the purposes of discharging its duties and performing its functions under the act, the commission is also empowered to enter into any memorandum or arrangement with any agency of any foreign country with the prior approval of the central government.

Are there any sectoral regulators with concurrent powers?

Yes, certain sector-specific regulators including the Telecom Regulatory Authority of India, the Central Electricity Regulatory Commission and the Petroleum and Natural Gas Regulatory Board have overlapping jurisdictions with the Competition Commission on questions of competition. While the act provides for the option of mutual consultation between the commission and such statutory authorities on a non-binding basis, several sector-specific investigations initiated by the commission have been stayed by the courts and are pending adjudication on the question of jurisdiction, as a consequence of applications made by the charged parties.

Application

Does the legislation apply to both formal agreements and informal practices?

The legislation applies to formal agreements and informal practices.

Does the legislation apply to individuals, companies or both?

The legislation applies to both individuals and companies.

Does the legislation subject companies to civil liability, criminal liability or both?

The legislation subjects companies to civil liabilities only. However, non-compliance with Competition Commission orders may constitute a criminal offence.

Does the legislation subject individuals to civil liability, criminal liability or both?

The legislation subjects individuals to civil liabilities only. However, non-compliance with Competition Commission orders may constitute a criminal offence.

Where cartel conduct is punishable by both civil and criminal penalties, can the enforcement authority pursue both types of penalty? How does the authority decide which penalties to seek?

Not applicable.

Are there any sector-specific offences or exemptions?

There are no sector-specific offences under the Competition Act. However, sector-specific exemptions may be provided by the government.

As per the latest notification issued by the central government, vessel-sharing agreements in the shipping industry have been exempted from Section 3 of the act (ie, prohibition of anti-competitive agreements) for a three-month period with effect from March 21 2017, in respect of carriers of all nationalities operating ships of any nationality from any Indian port, subject to the conditions that:

  • such agreements do not include concerted practices involving fixing prices, limitation of capacity or sales and the allocation of markets or customers; and
  • the director general of shipping monitors such agreements.

To what extent, if any, does the legislation apply to extraterritorial conduct?

The Competition Act vests the Competition Commission with the power to inquire into extra-territorial conduct relating to agreements, abuse of dominant position or a combination thereof if they have or are likely to have an appreciable adverse effect on competition in India and pass such orders as it may deem fit in accordance with the act.

Investigations

Initiating an investigation

Who can initiate an investigation of potential cartel conduct?

The Competition Commission may initiate an investigation suo moto, on reference by any statutory authority or receipt of information from any person, consumer or consumer association or trade association based on a prima facie satisfaction that the Competition Act has been violated. On such satisfaction, the commission directs the director general to investigate the matter and submit a report within a specified period. On consideration of such a report, and any objections thereto from the parties concerned, the commission may either close the case or impose such penalties as deemed fit. The director general cannot initiate an investigation on its own or appeal against the directions or orders of the commission.

If an investigation is initiated by complainants or third parties, what rights (if any) do they have?

Any party which approaches the Competition Commission holds the status of ‘information provider’. Such informants have no right to withdraw the information without leave of the commission. Further, they must cooperate and participate in the inquiry as required. A copy of the investigation report is forwarded to the informants and charged parties, to enable them to raise objections or offer suggestions.

What obligations does a company have on learning that an investigation has commenced?

On learning that an investigation has commenced, companies must preserve and submit all papers and documents to the director general, as may be required, in connection with the investigation. 

What obligations does a company have if it believes that an investigation is likely?

Irrespective of whether an investigation is likely, companies are mandated to preserve all books and papers relating to the company and any other bodies corporate which are in its custody or power. 

What are the potential consequences of failing to act or delaying action?

When a party fails to comply, without reasonable cause, with a direction given by the Competition Commission or director general, the commission can, fine that party Rs100,000 (approximately $1,550) for each day during which such failure continues, up to a maximum of Rs10 million (approximately $155,750).

Formal stages of investigation

What are the formal stages of and approximate timeframe for investigations?

The investigation commences upon the passing of an order by the Competition Commission directing the director general to carry out an investigation. The director general is generally asked to complete the investigation within 60 days of receipt of the order. However, it is routine for the director general to seek extensions, which the commission generally grants. In most cases, an investigation is completed in 18 to 24 months, depending on the complexity of the case. Although there are no formal milestones in an investigation, the director general typically sends multiple notices to the parties from time to time, seeking exhaustive information from the charged parties, third parties and the informant. The director general also summons the parties to record their statements on oath and seek clarification on documents and evidence on record. The investigation concludes with the submission of the report to the commission, recommending whether a violation of the act has occurred.

The commission will consider such reports and may direct further investigation or forward a copy of the non-confidential version of the investigation report to the parties for comments. On receipt of such comments, the commission will hear the parties and adjudicate the case by passing its final order.

Investigative powers

What investigative powers do the authorities have?

The director general has the power to:

  • summon and enforce the attendance of any person and examine such person under oath;
  • require the discovery and production of documents;
  • receive evidence on affidavit;
  • issue commissions for the examination of witnesses or documents; and
  • requisition any public record, document or copy of such record or document from any office.

Further, the director general may conduct search and seizure operations on obtaining a warrant from the chief metropolitan magistrate in Delhi.

What is the geographic reach of public enforcement actions?

The geographic reach of public enforcement action covers all India. However, the Competition Commission also has extraterritorial reach if an act that occurs outside India causes or is likely to cause an appreciable adverse effect on competition within India. Accordingly, the commission can conduct an inquiry into such acts and pass orders as it may deem fit in accordance with the Competition Act. The commission has entered into memoranda of understanding with a number of competition agencies globally to enhance international cooperation.

When is court approval required to invoke these powers?

Approval from the Delhi Metropolitan Magistrate Court is required for conducting search and seizure operations.

Further, if any person does not comply with the orders or directions, or fails to pay the fine imposed by the Competition Commission for non-compliance, then the chief metropolitan magistrate of Delhi may punish such persons with a fine of up to Rs250 million (approximately $3.9 million), three years’ imprisonment or both, as may be deemed fit.

Similarly, if any appellate tribunal order is contravened without reasonable grounds, such persons may be punished by the chief metropolitan magistrate with a fine of up to Rs10 million (approximately $155,750), three years’ imprisonment or both, as may be deemed fit.

Are searches of business and personal premises authorised? If so, which bodies carry out searches and will they wait for legal advisers to arrive?

The director general can carry out search and seizure operations only after obtaining a warrant from the chief metropolitan magistrate of Delhi. The director general is not required to wait for legal advisers to arrive before initiating such action. 

What level of cooperation with the authorities is required and what are the consequences for failing to cooperate?

Any person who, without reasonable cause, fails to comply with a direction given by the Competition Commission or director general can be fined up to Rs100,000 (approximately $1,550) for each day during which the failure continues, subject to a maximum of Rs10 million (approximately $155,750).

Further, any person who makes any statement or furnishes any document which such person knows or has reason to believe to be false or omits to state any material fact or wilfully alters, suppresses or destroys any document which is required to be furnished can be fined up to Rs10 million.

Is in-house legal advice or attorney work product protected by the law of privilege? Does this extend to the advice of in-house counsel?

In-house legal advice or advice by in-house counsel is not protected by the law of privilege. An in-house counsel in full-time employment is not recognised as an attorney or advocate under Indian law. 

However, attorney-client work product or communication from an advocate (ie, those who are registered under the Advocates Act 1961 and licensed to practise by the relevant state bar council) are protected by the law of privilege. 

Are any other limitations imposed on investigatory powers in order to safeguard the rights of those under investigation?

There are no limitations imposed on the investigatory powers of the director general under the Competition Act. 

What is the process for objecting to an authority’s exercise of its claimed powers?

The aggrieved party may file an appropriate writ before a high court or the Supreme Court. Under the Constitution, high courts are granted supervisory powers over subordinate courts and quasi-judicial bodies and tribunals (eg, the Competition Commission). 

Publicity and confidentiality

What information about investigations will be made publicly available and at which stage(s) of the process?

Information about investigations is not made publicly available until final orders are passed by the Competition Commission. However, prima facie orders of the commission directing an investigation by the director general are published on the commission’s website, except in cartel cases.

Is any information automatically confidential and is confidentiality available on request?

The Competition Commission is mandated to treat any information received as confidential and cannot disclose it without the written permission of the party or in compliance with the Competition Act or any other law in force.

Further, as per the Competition Commission of India (General) Regulations 2009, any party may avail of confidentiality on request in writing, subject to the commission’s satisfaction. Such satisfaction depends on whether disclosure to the public of any document or part thereof will result in disclosure of trade secrets or destruction or appreciable diminution of the commercial value of any information or can be reasonably expected to cause serious injury.

International cooperation

Do the authorities in your jurisdiction cooperate with authorities in other jurisdictions?

The Competition Commission has entered into a memorandum of undertaking with a number of competition agencies globally, including Russia and the United States (with the Federal Trade Commission and the Department of Justice), as well as with Australia, the European Union (director general of competition), Canada, Brazil, China and South Africa. 

Cases where the commission may have cooperated with authorities in other jurisdictions are not in the public domain.

Do the relevant enforcement authorities request waivers so as to allow for increased cooperation with authorities in other jurisdictions? What are the consequences of declining to grant a waiver?

No comment regarding requests for waivers or decline thereof can be made, as cases involving cooperation with enforcement authorities in other jurisdictions have not yet surfaced in India.

Decisions

How is a cartel investigation resolved? Are settlements, plea bargains or other negotiated resolutions available?

Settlements, plea bargains or other negotiated resolutions are not available under the Competition Act.

Cartel investigation or any other investigation under the act culminates in the submission of a detailed investigation report to the Competition Commission by the director general. The commission considers such investigation reports, obtains written submissions, hears the parties and passes its final order.

What is the process for negotiating a settlement, plea bargain or other negotiated resolution? Do such resolutions require court or other approval?

Not applicable.

If a settlement is not reached, what is the procedure for adjudicating a charge of cartel conduct?

Not applicable.

Which party must prove its case? What is the relevant standard of proof?

The director general must prove that an agreement exists among competitors (ie, among cartel members) and that such an agreement relates to any prohibited conduct – namely, to fix prices, limit output, share markets or indulge in bid rigging. Thereafter, a presumption in law would operate that the said conduct has an appreciable adverse effect on competition. Consequently, the onus to rebut such presumption shifts to the charged parties. However, the presumption of an appreciable adverse effect on competition does not apply to joint venture agreements if such an agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.

The relevant standard of proof under the Competition Act is based on the principle of ‘preponderance of probabilities’, which means that under the given facts and circumstance of the case, the Competition Commission considers whether the alleged conduct is likely. Thus, in the absence of direct evidence, the commission examines a host of economic factors, such as:

  • the nature of the industry;
  • the nature of the goods;
  • cost structures;
  • trends regarding movement of prices;
  • capacity utilisation;
  • production;
  • supplies; and
  • market shares. 

It also looks into conduct-related factors, such as:

  • evidence of meetings between competitors;
  • telephone records;
  • the similar or identical nature of bid documents;
  • membership and the nature of information shared in trade associations; and
  • any history of violation in India and other jurisdictions.

While the commission looks into a variety of economic and conduct-related factors, it accords primacy to conduct-related factors in its decisions.

Is there a hearing? If so, what is the process for submitting evidence and testimony?

Yes, there is a hearing.

Written or oral evidence and testimonies are collected on oath or affidavit by the director general during the course of investigation. Further, parties may also give written or oral evidence and testimonies to the director general by making an application in this regard. Once the investigation report is submitted to the commission, no new documents or testimonies can be introduced at the time of hearing or inquiry, unless permitted by the commission.

What are the accused’s procedural rights?

In cases where the director general has found a contravention of the Competition Act, the charged parties have a right to receive a copy of the investigation report and reply to it, either in person or through an attorney. 

Appeal process

What is the appeal process?

Any party aggrieved by any direction, decision or order of the Competition Commission may appeal before the National Company Law Appellate Tribunal within 60 days of its receipt.

An appeal against any order or decision of the appellate tribunal can be submitted to the Supreme Court within 60 days.

To what extent can the appeal body review the agency’s findings of fact, legal assessment and penalties?

The appeal body has the power to conduct a plenary review of the Competition Commission’s fact findings, legal assessment and penalties. Accordingly, the appeal body can pass such orders as it deems fit, confirming, modifying or setting aside the appealed direction, decision or order.

Penalties

Penalties for companies

What are the potential penalties for companies involved in a cartel?

Apart from cease and desist orders, a penalty of up to three times the profit of the participating firm for each year of the continuance of the cartel or 10% of its relevant turnover for each year of continuance of the cartel, whichever is higher, can be imposed.

Are there guidelines in place for penalties? If not, how are penalties normally calculated?

No specific guidelines are in place for calculating penalties. However, in various orders, the Competition Commission has stated that penalties must be commensurate with the seriousness of infringement and must also act as a deterrent. Keeping these principles in mind, the commission weighs various aggravating and mitigating factors, depending on the facts and circumstances of each case, to calculate the penalty.

Do the authorities take into account any penalties imposed in other jurisdictions?

The Competition Commission has thus far not adjudicated any case that involves penalties imposed in other jurisdictions. 

How can a company mitigate its exposure to fines?

Although no guidelines have been issued in this regard, it can be observed from the mitigating factors considered by the Competition Commission in various cases that a company may mitigate its exposure to fines by having an effective competition compliance policy in place.

Penalties for individuals

What are the potential penalties for individuals involved in a cartel?

In cases where the contravention has taken place with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such official shall be deemed guilty of that contravention and is liable to be fined up to 10% of his or her individual income for each year of the continuance of the cartel.

Further, every person in charge of and responsible to the company for the conduct of company business at the time that the contravention was committed shall be deemed guilty of the contravention and be liable to be fined up to 10% of his or her individual income for each year of the continuance of the cartel.

Do the authorities take into account any penalties imposed in other jurisdictions?

No such case has been adjudicated by the Competition Commission as yet.

Is a company permitted to pay a penalty imposed on its employee?

A company is not barred from paying penalties imposed on its employees.

Is a company permitted to continue to employ an employee involved in cartel conduct?

There is no bar on continuing the employment of an employee involved in cartel. However, the Competition Commission recently passed an order directing the removal for a specified period of certain office bearers of a trade association found to have been engaged in cartel conduct.

Private actions

Private damages actions

Can private actions for damages be brought in your jurisdiction? If so, who may assert such actions?

Yes, a claim for compensation or damages can be made by any person or enterprise before the National Company Law Appellate Tribunal. Based on the Competition Commission’s findings or the appellate tribunal in an appeal, a claim for compensation can be made for any loss or damage shown to have been suffered as a result of any contravention committed by an enterprise.Yes, a claim for compensation or damages can be made by any person or enterprise before the National Company Law Appellate Tribunal. Based on the Competition Commission’s findings or the appellate tribunal in an appeal, a claim for compensation can be made for any loss or damage shown to have been suffered as a result of any contravention committed by an enterprise.

What relief may be awarded to successful claimants (eg, damages, costs, injunctive relief or attorneys’ fees)?

Although no case of award of compensation has been decided to date, it is believed that the appellate tribunal may award damages, costs and attorneys’ fees to successful claimants. 

How are the amounts of any damages, costs or attorneys’ fees calculated?

Since no such case has been decided by the appellate tribunal, no comment can be offered. 

Have there been any notable recent cases in which a private action was the subject of adjudication?

No.

Class actions

Can class actions be brought in your jurisdiction? If so, what is the procedure for such cases?

Yes. With the permission of the National Company Law Appellate Tribunal, one or more such person having the same interest may make an application for class action. Thereafter, the appellate tribunal shall give notice of the institution of the compensation case to all interested persons, either by personal service or public advertisement. Further, any person on whose behalf or for whose benefit the compensation case has been instituted may apply to the appellate tribunal to be made a party to such case. 

Immunity and leniency

Immunity and leniency programmes

Is an immunity and leniency programme available for companies? If so, how does it operate?

Yes, an immunity and leniency programme is available to companies under Section 46 of the Competition Act, read with the Competition Commission of India (Lesser Penalty) Regulations 2009.

An applicant may be granted the benefit of a reduction in penalty of up to 100% if it is the first to make a vital disclosure by submitting evidence of cartel, enabling the Competition Commission to form a prima facie opinion regarding the existence of the cartel, and the commission did not have sufficient evidence to form such an opinion at the time of application. Further, the commission may grant such benefit to an applicant which makes a vital disclosure at the investigation stage by submitting evidence which establishes that the cartel and the commission and director general had insufficient evidence to establish such a contravention at the time of the application.   

The applicants subsequent to the first applicant may also be granted the benefit of a reduction in penalty on making a disclosure by submitting evidence which, in the commission’s opinion, may provide significant added value to evidence already in the commission’s or director general’s possession. The applicant marked second in the priority status may be granted a penalty reduction of up to 50%. The applicant marked as third in the priority status may be granted a reduction of up to 30%.

The commission will not consider the next applicant unless the evidence submitted by the first has been considered.

The commission has discretion in regard to the reduction in penalty. Such discretion is exercised with due regard to:

  • the stage at which the applicant has come forward with the disclosure;
  • the evidence already in the commission’s possession;
  • the quality of information provided; and
  • the full facts and circumstances of the case.

Can the enforcement authority decline or withdraw leniency? If so, on what basis?

The Competition Commission may decline or withdraw leniency if the leniency applicant breaches any of the conditions stipulated for grant of leniency. Leniency applicants are required to:

  • cease further participation in the cartel from the time of the disclosure, unless otherwise directed by the commission;
  • provide vital disclosure in respect of the violation;
  • provide all relevant information, documents and evidence as may be required by the commission;
  • cooperate genuinely, fully, continuously and expeditiously throughout the investigation and other proceedings before the commission; and
  • not conceal or destroy any relevant document that may contribute to the establishment of the cartel.

Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?

Cooperators that do not qualify for immunity may still benefit, as such conduct is likely to be considered as a mitigating factor by the Competition Commission while determining the penalty.

What benefits (if any) are available for employees and former employees of a company that seeks leniency?

Even though an applicant means an ‘enterprise’, as defined under the Competition Commission of India (Lesser Penalty) Regulations 2009, the commission has extended leniency benefits similar to those of a company to its employees.

Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?

No immunity or leniency programme is specifically prescribed for individuals. However, the Competition Commission has granted leniency benefits to individuals on the same terms and conditions as applicable to an enterprise.

Have there been any notable recent cases in which a leniency application was the subject of adjudication

To date, there has been only one final order of the Competition Commission in which a leniency application has been evaluated. This was in a case of cartelisation in respect of tenders floated by Indian Railways for the supply of brushless DC fans and other electrical items, wherein the Competition Commission suo moto directed the director general to investigate a prima facie case of bid rigging. After the director general issued notice to the parties, one of the manufacturers approached the commission with an application for leniency. The information furnished by it – including details of calls, text messages and modus operandi adopted by the members of the cartel to rig the bid – played an important role in determining how the cartel operated.

The leniency applicant received a 75% reduction of the penalty imposed on it by the commission. Further, the commission also accorded the same penalty reduction to the company director. The commission further opined that had the manufacturer approached the commission before the commencement of the investigation, it could have enjoyed an even greater reduction in penalty.

Criminal liability

Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?

Not applicable.

Application procedure

What is the procedure for a leniency application?

An enterprise may make an application containing all material information as specified in the Competition Commission of India (Lesser Penalty) Regulations 2009. Alternatively, it may contact the designated authority of the commission, orally or via email or fax, to furnish the information and evidence relating to the existence of a cartel. Those who contact the designated authority orally or by email or fax are granted 15 days from the time of contact to furnish material information as specified in the schedule.

What is the typical timeframe for consideration of a leniency application?

Within three days of receipt of a leniency application or establishment of contact for furnishing the information and evidence relating to the establishment of a cartel, the designated authority must submit the case to the Competition Commission for its consideration. The commission then gives a priority status to the applicant.

An applicant that has contacted the designated authority orally or through email or fax is directed to submit a written application containing all the material information within 15 days of the date of first contact. Failure to do so may lead to forfeiture of the claim for priority status and the reduced penalty.

The grant of immunity or reduced penalty is finally considered when the commission passes its final order in the cartel case.

What information and evidence is required?

Information relating to the existence of a cartel that is true, complete and vital must be furnished by a leniency applicant. An application for a reduced penalty must include the following:

  • name and address of the applicant, as well as of all other enterprises in the cartel;
  • a detailed description of the alleged cartel arrangement, including its aims and objectives and the details of activities and functions carried out for securing such aims and objectives;
  • the goods or services involved;
  • the geographic market covered;
  • the commencement and duration of the cartel;
  • the estimated volume of business affected by the cartel;
  • the details of all individuals, including their position, office and residence locations, who are or have been associated with the cartel, including those involved on behalf of the applicant;
  • a descriptive list of evidence regarding the nature and content of the evidence; and
  • any other material information.

In addition to the above, the leniency applicant may also be required to provide other information, documents or evidence as may be required by the director general or the Competition Commission.

What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?

Unless waived by the leniency applicant or required by law, no information or evidence can be disclosed to the subjects of the investigation.

What level of cooperation is required from applicants?

Applicants are required to cooperate genuinely, fully, continuously and expeditiously until the Competition Commission closes the case. 

What confidentiality protection is offered to applicants?

The identity of a leniency applicant and the information furnished by it are treated as confidential, unless disclosure is required by law or has been waived or publicly disclosed by the applicant.

Can the company apply for a marker? If so, under which conditions?

A company can apply for a marker provided that it has been a member of the cartel and is in a position to furnish all material information and evidence relating to the cartel’s existence, as specified in the Competition Commission of India (Lesser Penalty) Regulations 2009.