Competition Commission of India vs Bharti Airtel Limited - Supreme Court Important Judgment

 Competition Commission of India vs Bharti Airtel Limited - Supreme Court Important Judgment 2018 - 

 On 5th December, 2018, in the case of Competition Commission of India v. Bharti Airtel Limited and Others [Civil Appeal No. 11843 of 2018], wherein information /application was filed under Section 19(1) of the Competition Act, 2002 before the Competition Commission of India (CCI) alleging formation of an anti-competitive agreement/cartel by three major telecom operators (Incumbent Dominant OperatorsIDOs), the question for consideration was whether it was premature for the CCI to entertain the information for want of determination of such issues that fell within the domain of the Telecom Regulatory Authority of India Act, 1997 (TRAI Act).

 The Supreme Court did “not agree with the appellants that CCI could have dealt with this matter at this stage itself without availing the inquiry by TRAI.” It also did “not agree with the respondents that insofar as the telecom sector is concerned, jurisdiction of the CCI under the Competition Act is totally ousted.”

 It was held that till the jurisdictional issues were “straightened and answered by the TRAI which would bring on record findings” on the various aspects concerned, the CCI was “ill-equipped to proceed in the matter.” It was further held that “only when the jurisdictional facts in the present matter were “determined by the TRAI against the IDOs, the next question would arise as to whether it was a result of any concerted agreement between the IDOs” and the Cellular Operators Association of India (COAI) “supported the IDOs in that endeavour.” The Court said that “it would be at that stage the CCI can go into the question as to whether violation of the provisions of TRAI Act amounts” to ‘abuse of dominance’ or ‘anti-competitive agreements’, which “also follows from the reading of Sections 21 and 21A of the Competition Act.”

Rejecting the contention of the IDOs that the jurisdiction of the CCI stands totally ousted, the Supreme Court observed that “CCI is the experienced body in conducting competition analysis” and “more likely to opt for structural remedies which would lead the sector to evolve a point where sufficient new entry is induced thereby promoting genuine competition.” It was held that “this specific and important role assigned to the CCI cannot be completely wished away and the ‘comity’ between the sectoral regulator (i.e. TRAI) and the market regulator (i.e. the CCI) is to be maintained.”

 The Supreme Court held that balance is to be “maintained by permitting TRAI in the first instance to deal with and decide the jurisdictional aspects which can be more competently handled by it. Once that exercise is done and there are findings returned by the TRAI which lead to the prima facie conclusion that the IDOs have indulged in anti-competitive practices, the CCI can be activated to investigate the matter going by the criteria laid down in the relevant provisions of the Competition Act and take it to its logical conclusion.” It was held that “this balanced approach in construing the two Acts would take care of Section 60 of the Competition Act as well”. The Supreme Court observed that its’ analysis “does not bar the jurisdiction of CCI altogether but only pushes it to a later stage, after the TRAI has undertaken necessary exercise in the first place, which it is more suitable to carry out.”