27 July, 29018
The Competition Commission of India (CCI), in its order dated 11 July 2018[1], has awarded a 100 per cent reduction in penalty to leniency applicants Globecast India Private Limited (GI) and Globecast Asia Private Limited (GA) (collectively referred to as Globecast), along with their respective responsible office-bearers. It has also awarded a 30 per cent reduction to Essel Shyam Communication Limited (now Planetcast Media Services Limited) (ESCL) along with their responsible officer bearers, in a cartel case in the broadcasting services industry.
This is the latest and the fourth such order of the CCI granting reduction of penalty to applicant(s) under Section 46 of the Competition Act, 2002 (Act) and the Competition Commission of India (Lesser Penalty) Regulations, 2009 (Leniency Regulations).
Background
The case emanates from a leniency application filed by Globecast providing information of its bid-rigging arrangement with ESCL. The CCI formed its prima facie order based on this application and accorded the first priority status to Globecast. ESCL, on the other hand, was accorded second priority status having filed its leniency application only after the issuance of the prima facie order and after receiving a notice from the office of the Director General (DG).
DG Investigation
The DG, while investigating the case, identified whether there was an exchange of commercially sensitive information between ESCL and Globecast; whether the arguments presented by the leniency applicants explained their alleged violations of the Act and the key persons of ESCL and Globecast involved in the alleged bid-rigging.
Post the submission of the DG investigation report (DGIR), the CCI also permitted ESCL, Globecast and an individual leniency applicant Mr Prem, an ex-employee of Globecast, to cross-examine the witnesses who had deposed against them and whose statements had been relied upon in the DGIR. The DG submitted a supplementary report recording these cross-examinations, which merely confirmed its earlier findings.
Violation of Section 3(3) of the Act
The CCI and the DG both concluded that ESCL and Globecast had, through Mr Prem, exchanged commercially sensitive information in the tenders for procurement of broadcasting during 2011-12, and held them to be guilty of violating Section 3 of the Act. This conclusion was arrived at after examination of e-mails and statements of parties including e-mails sent from the personal email accounts of Mr Prem wherein sensitive commercial information on bid prices, terms of offer, etc. was exchanged.
The two leniency applicants gave contesting reasons for the information exchange – i.e., Globecast submitted that this was a result of an agreement between one its employees and ESCL for monetary benefits of which it had no knowledge; whereas ESCL stated that the exchange was the result of an investment proposal in ESCL pursued by Globecast and the exchange was done at Globecast’s behest.
Further, Globecast contended that during the contravention period it won only 2 out of the 14 events compared to 10 that ESCL won. However, the CCI concluded that collusion for even a single event is sufficient to establish contravention of the provisions of the Act and it is immaterial which party derived a higher benefit from the cartel.
The CCI’s Order & Leniency
The CCI imposed a penalty on Globecast and ESCL at 1.5 times their profit, for the period of contravention, i.e., from July 2011 to May 2012. The CCI also imposed penalties on the identified individuals calculated at the rate of 10 per cent of the average of their income for the last three preceding financial years.
However, considering the evidence and the information furnished by the leniency applicants, the CCI granted a 100 per cent reduction in penalty to Globecast and its responsible office bearers because it had made vital disclosures by submitting evidence of the alleged cartel, enabling the CCI to form a prima facie opinion regarding existence of the cartel and strengthening further investigation. The evidence submitted by Globecast (such as details of sporting events in which bid rigging took place, the role of its ex-employees, e-mail correspondence re exchange of commercially sensitive information, a forensic report related to the electronic evidences, etc.) were found crucial in revealing the modus operandi of the cartel.
In contrast, ESCL, which approached the CCI at a later stage in the investigation, was granted a 30 per cent reduction in penalty because it furnished additional facts such as proposed investment talks between the parties and related evidence such as a copy of the non-disclosure agreement and correspondence exchanged in this regard. Although the ESCL evidence was not vital to establishing bid-rigging, it disclosed one of the factors behind the information exchange and added value to the ongoing investigation.
Key Takeaways
The CCI has passed four leniency orders in less than two years. Each of these orders provide an insight into the factors that are considered by the CCI while deciding the penalty and immunity of the respective cartel members who have claimed immunity.
It is now established that the CCI accepts awarding a greater reduction where the leniency application enables the CCI to form a prima facie opinion about the cartel, including a complete waiver of penalty and is objective in acknowledging the value addition.
The CCI order also strengthens the treatment of individual liability in cases of leniency where the individual applicant was central to the cartel activity. Finally, the CCI has ensured adherence to principles of natural justice by ensuring cross-examination and using it to corroborate the DGIR.
[1] In Re: Cartelization by broadcasting service providers by rigging bids submitted in response to the tenders floated by Sports Broadcasters, Case No. 02 of 2013.
For further information, please contact:
Bharat Budholia, Partner, Cyril Amarchand Mangaldas
bharat.budholia@cyrilshroff.com
