The competition (Amendment) Bill, 2020
It needs to be understood that in the present competition law regime, both the sellers and the buyers’ Cartel have equal opportunity and ability to dominate the market and restrict or distort the competition. The transition of the civil transactions from the doctrine of caveat emptor to caveat venditor has put the buyers at a driving seat, making them capable of achieving the minimum purchase price even below the competitive market equilibrium. Today, international consensus is in favour of treating buyers’ Cartel at par with sellers’ Cartel, but CCI’s reluctance towards this inclusive definition of Cartel is a reflection of protectionist approach, which has been adopted by Indian Courts while rendering any judgment involving the interest of the consumers. The courts still hold on to the view that consumer choice is sacrosanct and forget that the aim of competition law should be not only to maintain consumer welfare but also a healthy competition environment for sellers also. But this doesn’t mean that courts adopt a very strict approach and start impleading buyer for every consolidation in the market as it may penalize consumer choice and poses a risk for legitimate buyers’ group, which actually work with the motive of consumer welfare.
The competition (Amendment) Bill, 2020, proposes to make buyers’ Cartel a per se offence under section3(3) of the act. The US and EU competition law regimes have also moved on to make buyers responsible for the abuse of dominant position in the market; under the Indian regime, section 4 is open for wide interpretation, and courts may extend buyers’ liability to that extent. This proposed amendment definitely attunes the law to the present realities of the competitive market and aligns it with the vision with which the new amended competition act came into existence.