INTRODUCTION
The Parliamentary Standing Committee on Finance (the Committee) recently released its 53rd report on ‘Anti-Competitive Practices by Big Tech Companies’ (the Report). Thereafter, the MCA constituted a new committee to, among other things, analyse the need for a new ex-ante framework for digital markets and draft a new DCA. These developments come at a time when both the national and international jurisprudence on competition is undergoing significant transformation. Nationally, the Competition (Amendment) Bill, 2022 (the 2022 Bill) has been introduced which seeks to strengthen the extant framework to deal with the peculiarities of digital markets.
Internationally, jurisdictions like the EU are adopting an ex-ante framework like the DMA with the intention to ensure fairness and contestability in digital markets. In this background, the Committee’s report becomes significantly relevant. For the Report, the Committee took oral evidence from various stakeholders including the Competition Commission of India (Commission), industry organisations and technology companies. On the basis of these submissions and past CCI cases, the Committee delineated ten ACPs and made subsequent recommendations aimed at effectively addressing these ACPs.
COMMITTEE’S RECOMMENDATIONS
The Committee made 10 key recommendations that have now formed the basis for a proposed ex-ante competition law in the country.
- The behaviour of certain important platforms needs to be evaluated ex-ante. Under the current ex-post facto framework, action can be taken against an enterprise only when anti-competitive conduct has been established by the authority. However, under an ex-ante framework, enterprises would have to ensure that they are complying with the listed conditions as soon as the framework comes into force.
- For this purpose, the Committee recommends that the government should consider and introduce a DCA to ensure a fair, transparent and contestable digital ecosystem.
- The CCI and the government should identify SIDIs i.e., leading players or market winners that can negatively influence competition in the digital ecosystem.
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