Anti–Competitive Agreements Pursuant To The Competition Act, 2002

Prohibition of Anti-Competitive Agreement:

No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.

Effect of Anti-Competitive Agreements: Any agreement entered into in contravention of the provisions of the said act shall be void.

Per-se anti-competitive agreements:

Any agreement entered into between enterprises or associations of enterprises or persons or association of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which :-

1. Directly or indirectly determines purchase or sale prices.
2. Limits or controls production, supply, markets, technical development, investment or provision of services.
3. Shares the market or source  of production or provision of services by way of allocation of geographical area of market, or type of goods or services , or number of customers in the market, or type of goods or services, or number of customers in the market or any other similar way;
4. Directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition

Other Anti – Competitive Agreements:

Any agreement amongst enterprises or persons at different stages or levels of production chain in different markets in respect of production, supply distribution, storage, sale or price of, or trade in goods or provision of services,

Including:-

1. Tie- in arrangement
2. Exclusive supply agreement
3. Exclusive distribution  agreement
4. Refusal to deal
5. Resale price maintenance

Shall be an agreements in contravention, if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.

Bid rigging means any agreement, between enterprises or persons engaged in identical or similar production or trading of goods or provisions of services., which has the effect of elimination or reducing competition for bids or adversely affecting or manipulating the process of bidding

Tie- in arrangements includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods

Refusal to deal includes any agreement which restricts, or is likely to restrict by any method the persons or classes of persons to whom goods are sold or from whom goods are sold or from whom goods are bought.

Exemptions:

An agreement shall not be deemed to be anti – competitive agreement, if it is entered into by way of joint venture and it increases the efficiency in production, supply, distribution, storage, acquisition or control of goods or provisions of services.

Noting contained in this section shall restrict:-

1. The right of any person to restrain any infringement of , or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under:-
   1. The Copyright Act, 1957;
   2. The Patents Act, 1970;
   3. The Trade Marks Act, 1999;
   4. The Geographical Indications of Goods (Registration and Protection) Act, 1999
   5. The design Act, 2000;
   6. The Semi-Conductor Integrated Circuits Layout-Design Act, 2000
2. The right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provisions of services for such export.

******************************************

Disclaimer: The entire contents of this document have been developed on the basis of relevant information and are purely the views of the authors. Though the authors have made utmost efforts to provide authentic information however, the authors and the company expressly disclaim all and any liability to any person who has read this document, or otherwise, in respect of anything, and of consequences of anything done, or omitted to be done by any such person in reliance upon the contents of this document.