The Competition Act 2002 and the Upcoming Digital Competition Law: A Comparative Analysis

Introduction

This article is specifically targeted towards performing a comparative study in terms of the competition laws of India. They are primarily governed by The Competition Act 2002, which had replaced the precedents in the statutory law of the Monopoly and Restrictive Trade Practices Act 1969. The important aspect of this law is the foundation and legal authority of the Competition Commission of India (CCI). This body acts as the primary tool or body corporate that is duty-bound to protect the interests of the market, primarily in terms of ensuring that free and fair competition can occur. The necessity of competition to exist has several critical implications for stakeholders, including the end consumers, which are reflective of a healthy and properly growing economic landscape. However, changes and transformation of industry and markets is a reality that law has to deal with, and it is at the core for the considerations and discourses of a Digital Competition Law to be passed as statutory law in the near future. To that end, the Parliamentary Standing Committee on Finance are the primary agents who are setting the stage for the law to become a reality.

Issue

European Parliament in its report on Deal on Digital Markets Act: EU rules to ensure fair competition and more choice for users 2022 stated that the issues at hand have been denoted in the requirements that have taken place across industry and economic contexts all across the world. These have been characterized in terms of digital technology, and how it has come to pervade numerous aspects of daily life, as well as society as a whole. There are distinct considerations that could be made in terms of reflecting the emergence of challenging issues, which are characterized by how the landscapes have been affected by the ‘Big Tech’. These are global technology companies whose widespread market power has extended beyond any imagination, which are associated with respect to a wide range of issues.

The important relevance of the multinationals like Apple, Facebook, Google, etc. is reflected in the indications of anti-competitive cases elsewhere across the world. The Standing Committee derived this from the cases that have been decided upon in the European Union (EU), which have found considerable evidence of a variety of anti-competitive behaviors. In the latest case, the critical scenarios have been pointed out with accusations of Amazon.com over its role as a major marketplace as well as a competitive retailer to the others, that are hosted on the platform. Thus, the Digital Markets Act 2022 that the EU has formulated has made it a specific and major point to include the ‘core platform services’ as critical scenario affairs, which are most prone to have anticompetitive behaviors taking place. These are correlated to a notable degree, among some crucial considerations in the change of contexts, for these affairs and conditions.

Analysis

The analytical focus is mostly directed towards what the Digital Competition Act of India shall have to be considered in comparison to all the critical aspects of The Competition Act 2002. The important focus has been noted for the core governance role that is to be fulfilled in terms of a range of responsibilities. The core of the details are indicated in Section 3 of the current statutory law, as it forbade anticompetitive behavior based upon three conditions, namely anticompetitive agreements, behavior using a dominant position and combination. In practical circumstances, these imply wide-ranging possibilities, which have been characterized in Section 3(3) with price fixing, market sharing, limiting production and controlling entries of new competitors. There are several different options, which constitute the overall options that have been reflected in production, collection, stockpiling, provisions or acquisitions, which could be applied to many aspects like research and development, marketing, accessibility to cutting-edge technology standards, technical resources, etc. Section 4 in relation to all of these developments has chosen to address the idea of ‘dominance’, which is indicative of companies utilizing their own affairs in order to influence the overarching outcomes of the market, such as pricing, availability, etc.

Thus, all these aspects seem to point at The Competition Act 2002 which has focused on the fundamental aspects that could be related or signified in terms of the results. Such considerations are exceptional to understanding and deriving the actions pertaining to the CCI.

The Impact of E-Commerce on Commercial Law: Navigating the Digital Frontier

The CCI in the answer towards the pursuit in conveying addressing anticompetitive complaints, which could be raised by any ‘person’ against others. Section 7 underlines the critical aspects by which the Commission is established, and Section 8 details the constitutive factors of the important positions to be fulfilled, such as Director General, Chairpersons, etc. alongside the criteria and processes, that are needed to be adhered to express the critical affairs and outlooks altogether. Section 19 expanding upon the duties of inquiring into the necessary anticompetitive phenomena is limited in terms of sub-sections 3, 4, 5,6 and 7, which are contributed in terms of reflecting the overall duties, and restrictions mentioned in Section 5, which are associated with indicating the critical aspects that could be derived and highlighted all across the board. The concepts and various detailed terms pertaining to anti-competitive practices, market contexts, and the roles being played convey the creation of a proper regulatory framework. Parliamentary Standing Committee on Finance in its 53rd report on Anti-Competitive Practices by Big Tech Companies 2022, stated that the necessary outlooks, which are conveyed in this vein seem to point out and highlight all the different conditions and factors across the board. These are important to analyze and derive the fact that the reality of digital transformation has provided would highlight the insufficiency of this statutory law, and the details of the entire regulatory framework, which has emerged as a consequential outcome.

The digital scenarios that have emerged have been noted both by the EU and the Parliamentary Standing Committee on Finance, as the verdicts by the former are critical to understand and portray in terms of having the most helpful outcomes and results all across the board. The critical grounds of determination are rooted in the landmark agreement that Amazon.com agreed to comply with under the concerns raised in terms of setting legal precedents on how abuse of dominance occurs. It, like other Big Tech companies, has established its markets globally.

It has distinguishably projected that the assent of the Digital Markets Act 2022 shall be represented in terms of linking and recognizing various conditions, which reflect high levels of anticompetitive behavior to emerge upon the core platform services. European Commission, in a press release on Antitrust: Commission sends Statement of Objections to Amazon for the use of non-public independent seller data and opens second investigation into its e-commerce business practices 2020 said that Amazon’s case was reached because of several distinct factors, which are tied to their marketing and core operational factors- some of which directly associated with the case of retail. EU’s association with the affairs had also been previously explored by the landmark case of Google and Alphabet v Competition Commission of India, in which the Court of Justice of the European Union critically reflected some of the most critical assertions on the core operating system platform of Android. In this case, the Big Tech multinationals had sought to exploit its search engine and other services available to the platform to restrict the business opportunities, which underlined the fine worth €4.125 billion, and Google also had to agree to the largest fine in the EU history, which had been previously denoted. The critical significance, however, has been denoted in terms of the preliminary form of the Digital Competition Act, which has been put in place after reaching compliance with Amazon.com. Given their precedence, there are critical indications directly associated with different outlooks and possibilities. The relevant outlooks and characteristics have impacted the perceptions of the Parliamentary Standing Committee in India regarding what their statutory act in this same area would comprise. Like the one in the EU, there has been critical recognition of the fact that there has been critical reasoning, which has been noted in terms of the case of Mr. Umar Javeed & Ors. v Google LLC & Anr., which the CCI had taken the authority over adjudicating in 2018. This case’s verdict was reached in 2022 in relation to which the abuse of dominance was found to have been true against the charges and facts laid out, which are associated with the Android operating systems, and the widely used digital ecosystem, which resulted from it. In light of these the centrality, of what the Standing Committee has referred to as ‘global technology intermediaries’ in order to refer to the Big Tech companies is relevant to consider and reflect upon.

The Thin Line Between Judicial Review and Judicial Overreach

Way Forward

For the Digital Competition Law, there needs to be specifications concerning the global intermediaries, and the various financial indicators, which seemingly guided and affected the results and outcomes. These are relevant to draw contrasts and apply the necessary restrictions, which need to be fashioned out in terms of reflecting critical affairs in relation to the outcomes and results by and large. These must also be accounted for the inclusion of the various market or industry contexts, which would be made possible with a specialized regulatory framework, as they would be highlighted. Meanwhile, The Competition Act 2002 could be pursued to not only be applied in non-digital cases but also to ensure that a proper regulatory framework is linked and integrated with the proper outcomes all across the board.