Cartel Leniency in India Thomson Reuters

Cartel leniency in India: overview, Practical Law Country Q&A 2-520-7061
Cartel leniency in India: overview

by Samir Gandhi, Aditi Gopalakrishnan, Toshit Shandilya, Rahul Shukla and Ravi
Gangal, AZB & Partners
Country Q&A | Law stated as at 01-Oct-2019 | India
A Q&A guide to cartel leniency law in India.
The Q&A is part of the global guide to cartel leniency. Areas covered include an overview of leniency and immunity,
the applicable procedure, relevant regulatory authorities, and conditions to be satisfied. Also covered are immunity
from civil fines to individuals, the scope of leniency, circumstances when leniency may be withdrawn, leniency plus,
confidentiality and disclosure, whistleblower tools and protections, and proposals for reform.
To compare answers across multiple jurisdictions, visit the cartel leniency Country Q&A tool.
This guide forms part of Global Guides' competition coverage. For a full list of jurisdictional Q&As in the
competition guides visit:
Cartel Leniency: global.practicallaw.com/leniency-guide.
Merger Control: global.practicallaw.com/mergercontrol-guide.
Restraints of Trade and Dominance: global.practicallaw.com/restraintsoftrade-guide.
Regulation
1. What laws provide for a leniency programme and which regulatory authority
administers it? Is there any published guidance?
Applicable laws and guidance

Under the Indian Competition Act 2002 (Competition Act), any agreement between
competitors is prohibited if it causes an appreciable adverse effect on competition (AAEC)
within the relevant market in India (section 3(1) and section 3(3), Competition Act).
Section 46 of the Competition Act read with the Competition Commission of India
(Lesser Penalty) Regulations 2009 (as amended) (Lesser Penalty Regulations) (found
© 2020 Thomson Reuters. All rights reserved. 1

at https://www.cci.gov.in/sites/default/files/regulation_pdf/regu_lesser.pdf) codifies
and governs the law on leniency in relation to cartel investigations in India. The
Competition Commission of India (CCI) can impose a lesser penalty on any member of
a cartel if the CCI is satisfied that the member has made a full, true and vital disclosure
in respect of its cartel activities.
The procedural aspects of the law on leniency in relation to cartel investigations in

India are provided under the Lesser Penalty Regulations. Briefly, the Lesser Penalty
Regulations set out the:
• Eligibility conditions for a leniency application.

• Sliding scale of leniency from administrative penalties.
• Procedure for obtaining a marker status.
• Contents of a leniency application.
• Confidentiality related provisions.
Regulatory authority
The CCI administers and enforces the leniency programme (www.cci.gov.in/).
Scope of application
2. What infringements of competition law does the leniency programme cover?
The leniency programme covers infringements which:
• Directly or indirectly determine purchase or sale prices.

• Limit or control production, supply, markets, technical development, investment or
provision of services.
• Share the market or source of production or provision of services by allocation of
geographical area of market, type of goods or services or number of customers in
the market or any other similar way.
• Directly or indirectly bid-rig (collusive tendering).
These types of agreements result in significant penalties.

The leniency programme is available to enterprises and/or individuals that disclose to the
CCI their role in a cartel and co-operate with subsequent investigations.
There is no criminal liability for cartel conduct in India. The leniency regime only extends
to the administrative liability imposed on cartel members.
The CCI amended the Lesser Penalty Regulations in August 2017 (the amendment can be
found at https://www.cci.gov.in/sites/default/files/whats_newdocument/178210.pdf)
to strengthen and streamline its leniency programme by attracting better-quality
evidence through leniency applications and ensuring that it expends fewer resources in
reviewing applications.
The amendment:
• Expanded the scope of the Lesser Penalty Regulations. The amendment

allows individual whistleblowers to approach the CCI with evidence on collusion. It
introduced an additional requirement for enterprises applying for leniency to also
submit details of individuals who have been involved in a cartel on behalf of the
applicant enterprises. Therefore, while filing a leniency application, the applicant
enterprises can seek immunity for their employees and former employees who were
involved in a cartel.
• Abolished the earlier cap on the number of leniency applicants who
could benefit from the leniency programme. The amendment now expressly
allows the CCI to grant immunity to more than three applicants. Subsequent
applicants will be eligible for a penalty waiver of up to 30%, provided they assist in
giving "significant added value" to the evidence already in the possession of the CCI
or the Director General (DG) (the investigative arm of the CCI), (this also applies to
the second applicant).
• Introduced significant changes to the provisions on confidentiality.
The amendment allows the DG to disclose information under the Lesser Penalty
Regulations to other parties for the purposes of the investigation if it deems
necessary. The aim of this is to ensure that the parties against whom a negative
finding may be made are afforded a fair opportunity to controvert evidence, and to
allow the DG to test this evidence (or collect further evidence) by placing it before
the other parties. Previously, the identity of an applicant seeking immunity and
the evidence submitted could not to be disclosed by the DG or the CCI, unless
the disclosure was required by law or was consented to by the applicant, or the
information was already publicised by the applicant. Now, however, if the applicant
does not consent to the disclosure, the DG must :
• record its reasoning for disclosure in writing; and
• seek the approval of the CCI.
• Allows for file inspections by parties to information submitted by

applicants. The amendment extends the provisions of the General Regulations
relating to the inspection of case files to the information submitted by the
applicants under the Lesser Penalty Regulations. Accordingly, after the CCI shares

the DG's report with the parties concerned, the "non-confidential" version of the
report becomes available for inspection by the parties.
Recent cases and trends
3. What notable recent cases have applied the leniency programme?
CCI decisions on cartels

There have only been five cases decided under the leniency provisions of the Competition
Act to date. The key observations from these cases are as follows:
• Brushless DC Fans (Case No. 03 of 2014). This was the first leniency decision
by the CCI. A DG, investigation was suo moto (on its own motion) directed by the
CCI, based on information received from the Central Bureau of Investigation, an
organisation tasked with investigating economic crimes more generally. The report
suggested cartelisation between the manufacturers and the suppliers of brushless
fans, in relation to tenders floated by the Indian Railways and Bharat Earth Movers
Limited for the supply of brushless fans and other electrical items. During the DG
investigation, one of the parties applied for leniency. In its final decision, the CCI
acknowledged that the disclosures made by the applicant added significant value to
the determination of the existence of a cartel. However, complete immunity was not
granted to the applicant and penalty reduction was capped at 75%. This is because
the CCI was already in possession of evidence that enabled it to form a prima facie
opinion about the existence of a cartel and direct a DG investigation. Accordingly,
the CCI takes a very conservative approach in relation to what constitutes as "value
added".
• Zinc Carbon Dry-Cell Batteries (Case No. 02 of 2016 and Case Nos.
02 and 03 of 2017). A leniency application filed by Panasonic Energy India
Co Ltd (Panasonic) triggered an investigation by the CCI into cartelisation of
dry-cell batteries between Panasonic, Eveready Industries India Ltd. (Eveready)
and Indo National Ltd (Nippo). Subsequently, the Association of Indian Dry Cell
Manufacturers (AIDCM), (of which Panasonic, Eveready and Nippo were members)
was also included within the scope of the investigation. The DG is reported to have
conducted search and seizure operations on the premises of Panasonic, Eveready
and Nippo and examined fax and email communications and other documents.
The CCI granted Panasonic full immunity from administrative penalties (100%
reduction) as it was the first leniency applicant and it enabled the CCI to form a
prima facie opinion regarding the existence of the cartel. Eveready and Nippo,

(which applied for leniency at a later stage), were granted 30% and 20% reductions
respectively for their co-operation in the case.
Subsequently, Panasonic Corporation filed a leniency application on behalf of itself
and Panasonic, implicating Geep Industries (India) Pvt Ltd (Geep) (Case No. 02 of
2017) and Godrej & Boyce Manufacturing Co Ltd (Godrej) (Case No. 03 of 2017) of
fixing prices of dry-cell batteries sold by Panasonic, Geep and Godrej, respectively.
Panasonic was the supplier of dry-cell batteries to both Geep and Godrej. Panasonic
submitted that it revised the prices of the batteries that it supplied to Geep and
Godrej based on the decisions taken by the primary cartel between Eveready, Nippo
and itself. Although the CCI imposed a penalty on Geep and Godrej, Panasonic
was granted 100% reduction in penalty, as the leniency application made vital
disclosures, which enabled the CCI to form a prima facie opinion regarding the
existence of the cartel between Panasonic, Geep and Godrej and to direct a DG
investigation.
• Cartelisation in the flashlights market (Case No. 01 of 2017). Eveready
filed a leniency application reporting exchange of information on production and
sale of flashlights. Eveready submitted that along with Panasonic, Nippo, and Geep,
it had exchanged information on prices, production, and sales of flashlights through
their interactions under the aegis of the AIDCM. Subsequently, Panasonic also filed
a leniency application disclosing that it was part of the alleged anti-competitive
information exchange in relation to the flashlights. Panasonic further submitted
that the CCI should view its conduct in the flashlights market as a continuation of
its previously disclosed conduct in the dry-cell market.
Based on the information received through the leniency applications, the CCI
directed the DG to conduct an investigation into the alleged anti-competitive
conduct of Eveready, Panasonic, Nippo, Geep and AIDCM. The DG absolved Geep
of any anti-competitive conduct. The battery manufacturers raised the preliminary
argument that no separate case in relation to the flashlights market could subsist
against them since the CCI had already penalised them for cartelisation in the
market for zinc-carbon dry-cell batteries (Case No. 02 of 2016). However, the
CCI rejected the argument and stated that despite being complementary in
nature, batteries and flashlights were separate products in terms of end use and
characteristics.
Notably, after the review of evidence, the CCI observed that while the battery
manufacturers exchanged commercially sensitive information through AIDCM and
reached an agreement to collectively increase prices of flashlights, there was no
evidence to suggest that the agreement was in fact implemented. Accordingly, the
CCI closed the investigation and did not impose a penalty on any party.
• Pune Municipal Corporation (Case No. 50 of 2015 and Case Nos. 03 and
04 of 2016). The case was initiated on the basis of an "information" (complaint)
filed under section 19(1)(a) of the Competition Act by Nagrik Chetna Manch,
alleging bid-rigging by six parties in tenders issued by Pune Municipal Corporation
(PMC) for municipal organic and inorganic solid waste processing plants. During
the DG's investigation, one applicant applied for leniency and subsequently five
other parties applied at different stages. The parties at the outset raised issues of

due process breach by the DG, arguing that confidentiality was not granted to their
statements as recorded by the DG, resulting in reputational harm.
The CCI rejected the claim and explained that confidentiality granted under the
Lesser Penalty Regulations did not extend to evidence collected by the DG as part
of its investigation, even if this evidence was obtained from a leniency applicant.
Further, it was held that, unless directed otherwise by the CCI, the proceedings
are not open to public, including the contents of the DG investigation report. Full
immunity was not granted to any of the six leniency applicants that had approached
the CCI during the investigation. However, penalties for four applicants were
reduced based on the dates of their applications and the value they added to the
investigation. The remaining two applicants were not granted any reduction in
penalties as their disclosures did not provide significant added value.
Based on the information received by the CCI in this case, it further initiated two
distinct investigations into allegations of bid-rigging in other tenders. In Case No.
03 of 2016, the CCI received a leniency application by one of the parties, followed
by two other leniency applications once it had initiated the investigation. Another
application was filed after the CCI had directed a DG investigation into the matter.
Out of the four applicants, leniency (of 50%) was only granted to the first applicant
for providing evidence that added value to the investigation. The remaining
applicants were not granted any reduction in penalties as their disclosures did not
provide significant added value. In Case No. 04 of 2016, one of the parties applied
for leniency to the CCI after the DG investigation had been initiated. The CCI did
not levy any penalty on the parties in consideration of the fact that penalty had
already been levied on the parties in Case No. 50 of 2015.
• Cartelisation in relation to tenders for broadcasting rights of sporting
events (Case No. 02 of 2013).The case was initiated on the basis of a lesser
penalty application filed jointly by Globecast India Pvt Ltd and Globecast Asia
Pvt Ltd (Globecast) disclosing a cartel with Essel Shyam Communication Limited
(ESCL) to rig tenders for procurement of broadcasting services of various sporting
events in India. Globecast submitted that there was an exchange of commercially
sensitive information between Globecast and ESCL resulting in bid rigging. The
CCI, after forming a prima facie opinion of the existence of a cartel, directed the DG
to investigate the conduct of Globecast and ESCL. During the course of the DG's
investigation, ESCL also filed a leniency application, corroborating the available
evidence, and also disclosing additional facts such as the proposed strategic
investment of Globecast in ESCL (a fact which was not disclosed by Globecast). The
CCI granted 100% reduction in penalty to Globecast as its lesser penalty application
enabled the CCI to form a prima facie opinion. ESCL was granted a 30% reduction
in penalty as the evidence furnished by it added value to the ongoing investigation.
• Electronic Power Steering Systems (Case No. 07(01) of 2014). The
case was initiated on the basis of a leniency application filed by NSK Ltd (NSK)
implicating itself and JTEKT Corporation along with their Indian subsidiaries,
Rane NSK Steering Systems India Ltd (RNSS), and JTEKT Sona Automotive
India Ltd (JTEKT India) respectively, of cartelising in relation to the supply of
column type Electronic Power Steering Systems to certain original equipment
manufacturers. The CCI formed its prima facie opinion based on the leniency
application filed by NSK and directed the DG to investigate the conduct of NSK,

RNSS, JTEKT and JTEKT India. During the course of the investigation, JTEKT
also filed a leniency application with the CCI. The CCI granted 100% reduction in
penalty to NSK (and RNSS) as its lesser penalty application enabled the CCI to
form a prima facie opinion. JTEKT was granted a 50% reduction in penalty as the
evidence furnished by it added significant value to the ongoing investigation.
Availability of leniency
Administrative liability
4. Is full immunity from administrative penalties available? What conditions

must be met for immunity to be granted?
The CCI has the power to grant full immunity from administrative penalties leviable on
cartels under the Competition Act.
An applicant will be granted a reduction in administrative penalties (up to 100% if it is

the first applicant) if it satisfies the following conditions:
• Ceases participation in the cartel from the time of the disclosure (unless directed
otherwise).
• Provides vital disclosure in relation to the violation of the Competition Act.
• Provides all relevant information, documents and evidence as requested by the CCI.
• Co-operates genuinely, fully, continuously and expeditiously throughout the
investigations and at no point, conceals, destroys, manipulates or removes the
relevant documents in any manner that can contribute to the establishment of a
cartel.
The CCI can also impose further conditions on the applicant depending on the facts and
circumstances of the particular case.
In addition, to be granted full immunity, the first applicant for leniency must make vital
disclosure by submitting evidence of a cartel enabling the CCI to either:
• Form a prima facie opinion regarding the existence of a cartel where the CCI did
not have the evidence to form that opinion.

• Establish a violation of section 3 of the Competition Act by providing evidence that

the DG or the CCI did not have.
5. Is there a sliding scale of available leniency from administrative penalties?
There is a sliding scale of leniency from administrative penalties under the Lesser Penalty
Regulations. The CCI can reduce the penalties of more than one leniency applicant (see
Question 3 and Question 4).
The second or third applicant in the priority status can also be granted the benefit of a
reduction in penalty by up to 50% and 30% of the full leviable penalty respectively on
making a disclosure by submitting evidence, which provides significant added value to the
evidence already in the possession of the CCI for establishing the existence of the cartel.
As previously mentioned, the CCI amended the Lesser Penalty Regulations in August 2017
(amendment). Originally, the Lesser Penalty Regulations only extended the entitlement
to a fine reduction to a maximum of three leniency applicants on a first come, first
served basis. The amendment has done away with this limitation and has now permitted
additional applicants to avail the benefit of the Lesser Penalty Regulations. All applicants
subsequent to the third are now eligible for a reduction in penalty by up to 30% of the
full leviable penalty.
6. Is immunity or leniency for administrative penalties available to

individuals? If so, what conditions apply?
Immunity and leniency for administrative penalties is available to individuals. See

Question 4 for the conditions that must be satisfied to avail immunity or leniency under
the Competition Act.
See Question 7, Employees' interests. for the consequences of an individual not co-
operating with a corporate leniency applicant.

7. Is immunity or leniency available for companies and/or its employees in

relation to criminal prosecution? What are the implications for employees
when an undertaking has been granted immunity or leniency?
Circumstances
Anti-competitive practices, including cartels are not subject to criminal prosecution
under the Competition Act.
Proceedings against employees

See above, Circumstances.
Employees' interests.
The amended Lesser Penalty Regulations apply to enterprises and the individuals
involved in a cartel on behalf of such enterprises.
However, where an individual within the scope of the applicant's leniency application
refuses to co-operate with the CCI after requesting leniency, and the CCI finds that
the individual was, in fact, involved in the cartel, the individual risks expulsion from
the leniency programme. This however, does not necessarily put at risk the enterprise's
application for leniency. To the best of our knowledge, expulsion as described above has
not yet been tested under the Indian leniency regime.
Application proceedings
8. When should an application for leniency be made?
A leniency application must be made as soon as the prospective applicant becomes aware
of an offence under the Competition Act. Although the application can be made after the
investigation has started, no immunity is granted to an applicant if the application is made
once the DG has submitted its investigation report to the CCI.

9. What are the procedural rules for leniency applications?
Relevant authority
An application for leniency is made to the CCI.
Applicant
The application for leniency must be made by the enterprise, or any of its employees who
have been involved in the cartel, either directly or through a legal representative.
Informal/confidential guidance
It is not possible to obtain informal guidance before submitting an application, to
determine whether an undertaking will qualify for full immunity or leniency.
Form of application
An application must be made to a designated authority in writing, containing the
information listed in the Schedule to the Lesser Penalty Regulations.
The applicant can also contact the designated authority (either orally or through email or
fax) to submit information and evidence relating to the existence of a cartel.
Markers
Under the provisions of the Competition Act, a leniency applicant can apply for a marker
to secure a position in the leniency or immunity queue to allow it to gather the necessary
information and evidence to perfect the marker.
The process for applying for a marker involves two steps:
• Submitting a marker letter to the CCI, orally, by post or email.

• Submitting a detailed written leniency application within a period not exceeding
15 days (this period can be extended by the CCI) from the date of submitting the
marker letter to the CCI. If the leniency application is not received within this
period, the applicant may forfeit its priority status and consequently the benefit of
grant of lesser penalty.
The CCI must convey the order of priority in which the marker letters were submitted to
the leniency applicants.
Information/evidence

Under the Lesser Penalty Regulations, a leniency application must include the following
information:
• Relevant names and addresses.

• If the applicant is based outside of India, the address of the applicant in India for
communication, (including telephone number and email address and so on).
• A detailed description of the alleged cartel arrangement, including its aims and
objectives and the details of activities and functions carried out for securing these
aims and objectives.
• The goods or services involved.
• The geographic market covered.
• Commencement date and duration of the cartel.
• The estimated volume of business affected in India by the alleged cartel.
• Names and details of all individuals who, in the knowledge of the applicant, are or
have been involved in the alleged cartel, including on behalf of the applicant.
• Details of the other competition authorities, forums or courts, if any, approached or
intended to be approached in relation to the alleged cartel.
• A descriptive list of evidence provided in support of the application.
• Any other material information as may be directed by the CCI.
A leniency applicant is not required to admit guilt while applying for leniency. An
applicant must simply self-assess agreements in light of the Competition Act to identify
whether they may have contravened the provisions of the Act and the CCI must determine
whether the applicant has, in fact, contravened the provisions.
Oral statements
An application for a marker can be recorded orally. However, the initial oral contact must
be followed by a detailed written leniency application within a period not exceeding 15
days (see above, Markers).
During the investigation, the applicant can adduce evidence by way of oral submissions,
in response to the questions posed by the DG. In practice, the DG and the CCI record in
writing the statements made as oral submissions.
Short-form applications
Not applicable.

10. What are the applicable procedures and timetable?
An application for leniency consists of the following steps:
• An application is submitted containing the material information as specified in

the Lesser Penalty Regulations, or a marker letter is submitted to the designated
authority. The designated authority has five working days from the date of the
contact or the application (if submitted at the outset) to bring the matter before the
CCI.
• Where the CCI receives a marker letter, the applicant must submit the detailed
leniency application and the relevant evidence and information to the CCI within a
period not exceeding 15 days from the date of the initial contact (the CCI can extend
this deadline).
• On receiving a leniency application, the CCI must acknowledge the receipt of the
same, mark the priority status of the applicant, and the date and time of receipt by
the designated authority. The priority status must be notified to the applicant. The
CCI then forwards this information to the DG, who initiates an investigation.
• Subsequently, the DG evaluates the evidence submitted and forwards a report with
its findings, including the extent of the applicant's co-operation, to the CCI, which
then invites oral and written submissions from the applicant.
• The CCI passes a final order.
Withdrawal of leniency
11. In what circumstances and at what stage of the proceedings can leniency
be withdrawn? What implications does the withdrawal of leniency from one
company have for other applicants?
The CCI can withdraw leniency if during the enquiry the applicant fails to comply with the
conditions imposed and fails to co-operate. However, this is likely to be communicated
along with the CCI's final order and not during the enquiry.
If the CCI withdraws the leniency for a given applicant, the subsequent applicants, in
order of their applications, continue to be eligible for leniency.

Scope of protection
12. What is the scope of leniency protection after it has been granted?
Under the Lesser Penalty Regulations, leniency protection is limited to the cartel in
relation to which information is provided.
13. Does the competition authority offer any further reduction in fines for an
undertaking's activities in one market if it is the first to disclose restrictive
agreements and practices in another market (leniency plus)?
The Competition Act and the Lesser Penalty Regulations do not deal with the concept of
leniency plus.
14. Does the grant of leniency affect a third party's ability to bring a follow-on
damages action against a leniency applicant?
The application for grant of leniency would not affect follow-on damages actions
brought by a third party against a member of a cartel. Under the Competition Act, any
person, enterprise, local authority, state government or central government can make
an application to the National Company Law Appellate Tribunal (NCLAT) (the appellate
authority for the purposes of the Competition Act) to adjudicate compensation claims
that may arise from the findings of the CCI or the orders of the NCLAT. No compensation
claims in relation to cartels have been decided by the NCLAT to date.
Confidentiality and disclosure

15. What are the rules relating to confidentiality during a leniency application?
Identity disclosure
The CCI and the DG must treat the identity of the applicant as confidential, except in any
of the following circumstances:
• Disclosure is required by law.

• The applicant has agreed to the disclosure in writing.
• The applicant has publicly disclosed this information.
Information disclosure
The CCI and the DG must treat the information, documents and evidence submitted
by the applicant as confidential, subject to certain conditions (see above, Identity
disclosure).
Further, the DG can disclose information, documents and evidence submitted by an

applicant, to a party to the proceedings, if the DG deems that the disclosure is necessary
for the purposes of the investigation (even if the applicant has not agreed to the
disclosure). In such cases, the DG makes the disclosure for reasons to be recorded in
writing and after taking prior approval of the CCI.
Confidentiality requests
The Lesser Penalty Regulations grant confidentiality to all information submitted by a
leniency applicant, subject to certain conditions (see above, Identity disclosure).
16. What are the rules concerning disclosure of statements made in support of
a leniency application?
Domestic submissions and domestic discovery

The Competition Act and the CCI (General) Regulations, 2009 (General Regulations)
allow for statements to be made under affidavits. As per the Lesser Penalty Regulations,
the identity of the applicant and the statements made in support of a leniency application
are considered as confidential. However, the identity of the applicant and the statement

made in support of a leniency application may be disclosed in any of the following

circumstances:
• Disclosure is required by law.

• The applicant has agreed to the disclosure in writing.
• The applicant has publicly disclosed this information.
Further, under the amendment to the Lesser Penalty Regulations, the DG may disclose
confidential information without seeking the applicant's approval, after:
• Recording its reasoning for disclosure in writing.

• Seeking the approval of the CCI.
Domestic submissions and foreign discovery

The Competition Act and the Lesser Penalty Regulations are silent in relation to
disclosure by way of foreign discovery of statements made in support of a leniency
application. Nevertheless, information sharing is unlikely given the differences in relation
to confidentiality and sanctions (criminal or civil) in different jurisdictions. The CCI will
likely only share non-confidential information with foreign authorities.
Foreign submissions and domestic discovery

The Competition Act and the Lesser Penalty Regulations are also silent in this regard (see
above, Domestic submissions and foreign discovery.
Inter-agency co-operation
17. Does the regulatory authority in your jurisdiction co-operate with

regulatory authorities from other jurisdictions in relation to leniency? If so,
what is the legal basis for and extent of co-operation?
The Competition Act provides for co-operation between the CCI and competition
authorities from other jurisdictions.
The CCI has entered into co-operation agreements with the:

• US Federal Trade Commission and Department of Justice.

• DG Competition of the European Commission.
• Australian Competition and Consumer Commission.
• Russian Federal Antimonopoly Service.
• Competition Bureau Canada.
However, there are no specific provisions in the Competition Act or the Lesser Penalty
Regulations for co-operation between the CCI and competition authorities from other
jurisdictions in relation to leniency (see Question 16, Domestic submissions and foreign
discovery.)
Whistleblowers
18. Are there any whistleblower tools for individuals to report competition
violations/cartels?
Whistleblower tools
The CCI amended the Lesser Penalty Regulations in August 2017 and expanded its
scope to specifically allow individuals to approach the CCI with evidence of collusion
and file a leniency application (see Question 2). Any such individual can provide the
CCI with evidence on collusion or file the leniency application by sending an e-mail
to [email protected] or submitting the form available on the CCI's website (https://
www.cci.gov.in/node/add/complaint-management).
Whistleblower protection
There are no safeguards for individuals who report competition violations/ cartels;
however, the CCI maintains complete confidentiality regarding the identity of
whistleblowers (see Question 15).
19. Is there a reward for individuals who report competition violations/cartels?

The Indian leniency regime treats individuals applying for leniency in the same way as
enterprises applying for leniency. Immunity and leniency for administrative penalties is
available to individuals. See Question 4 for the conditions that must be satisfied to avail
immunity or leniency under the Competition Act. However, there is currently no reward
for whistleblowers who report a possible competition violation/ cartel but who had not
participated in the wrongdoing.
Proposals for reform
20. Are there any proposals for reform?
The Competition Law Review Committee (CLRC) that formed in October 2018 to review
the Competition Act issued its report to the Ministry of Corporate Affairs on 26 July 2019.
The CLRC's report contains multiple recommendations with respect to the substantive
aspects of the Competition Act as well as in relation to the governance and administrative
functioning of the CCI and NCLAT. The notable recommendations regarding the leniency
regime include:
• Introducing the concept of "leniency plus".

• Establishing a proactive antitrust enforcement tool aimed at attracting leniency
applications by encouraging companies already under investigation for one cartel
to report cartels unknown to the CCI. This would result in reduction of penalty
in the first cartel to the person/enterprise disclosing the information, thereby
incentivising applicants to come forward with disclosures regarding multiple
cartels. It has been suggested that the reduction will be over and above any other
penalty reductions that such applicant may receive under the present framework.
• Introducing provisions to enable withdrawal of leniency applications. This would
be useful where an enterprise applies for leniency and later on learns that there has
been no contravention of cartel provisions under the Competition Act.
Further, the report also proposes that the CCI should be allowed to rely on the
information/ evidence submitted by the leniency applicant for the purposes of
prosecution under the Competition Act.
Currently, it is not known if and when these recommendations will be adopted. The
recommendations are not binding on the Government of India and it remains to be seen
to what extent they will be accepted.

Contributor profiles
Samir Gandhi, Partner
AZB & Partners

T +91 11 4199988
F +91 120 4179900
E [email protected]
W https://www.azbpartners.com/
Professional qualifications. India, Advocate, 1999
Areas of practice. Competition/Antitrust.
Aditi Gopalakrishnan, Partner
AZB & Partners

T +91 11 4199840
F +91 120 4179900
E [email protected]
Non-professional qualifications. LLB (Hons), University of Delhi, 2010;

LLM in Trade Regulation (Antitrust Specialisation), New York University, 2011;
BA (Economics), University of Delhi, 2006
Toshit Shandilya, Senior Associate
AZB & Partners

T +91 11 4199835
F +91 120 4179900
E [email protected]

Non-professional qualifications. BA LLB (Hons), National Law University,

Delhi, 2013
Rahul Shukla, Associate
AZB & Partners

T +91 22 40729817
F +91 22 66396888
E [email protected]
Non-professional qualifications. BLS LLB (Hons), Government Law

College, Mumbai, 2015; LLM in International Business and Economic Laws,
Georgetown University (Washington, D.C.), 2016
Ravi Gangal, Associate
AZB & Partners

T +91 22 40729985
F +91 22 66396888
E [email protected]
Professional qualifications. India, pending enrolment
Non-professional qualifications. BA LLB (Hons), Dr Ram Manohar Lohiya

National Law University, Lucknow, 2018
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Cartel leniency in India: overview, Practical Law Country Q&A 2-520-7061

Cartel leniency in India: overview

Country Q&A | Law stated as at 01-Oct-2019 | India

A Q&A guide to cartel leniency law in India.

Cartel Leniency: global.practicallaw.com/leniency-guide.

Merger Control: global.practicallaw.com/mergercontrol-guide.

Restraints of Trade and Dominance: global.practicallaw.com/restraintsoftrade-guide.

Applicable laws and guidance

© 2020 Thomson Reuters. All rights reserved. 1

The procedural aspects of the law on leniency in relation to cartel investigations in

• Eligibility conditions for a leniency application.

2. What infringements of competition law does the leniency programme cover?

The leniency programme covers infringements which:

• Directly or indirectly determine purchase or sale prices.

© 2020 Thomson Reuters. All rights reserved. 2

• Expanded the scope of the Lesser Penalty Regulations. The amendment

• Allows for file inspections by parties to information submitted by

© 2020 Thomson Reuters. All rights reserved. 3

Recent cases and trends

3. What notable recent cases have applied the leniency programme?

CCI decisions on cartels

© 2020 Thomson Reuters. All rights reserved. 4

© 2020 Thomson Reuters. All rights reserved. 5

© 2020 Thomson Reuters. All rights reserved. 6

4. Is full immunity from administrative penalties available? What conditions

An applicant will be granted a reduction in administrative penalties (up to 100% if it is

© 2020 Thomson Reuters. All rights reserved. 7

• Establish a violation of section 3 of the Competition Act by providing evidence that

5. Is there a sliding scale of available leniency from administrative penalties?

6. Is immunity or leniency for administrative penalties available to

Immunity and leniency for administrative penalties is available to individuals. See

© 2020 Thomson Reuters. All rights reserved. 8

7. Is immunity or leniency available for companies and/or its employees in

Proceedings against employees

8. When should an application for leniency be made?

© 2020 Thomson Reuters. All rights reserved. 9

9. What are the procedural rules for leniency applications?

The process for applying for a marker involves two steps:

• Submitting a marker letter to the CCI, orally, by post or email.

© 2020 Thomson Reuters. All rights reserved. 10

• Relevant names and addresses.

© 2020 Thomson Reuters. All rights reserved. 11

10. What are the applicable procedures and timetable?

An application for leniency consists of the following steps:

• An application is submitted containing the material information as specified in

© 2020 Thomson Reuters. All rights reserved. 12

Confidentiality and disclosure

© 2020 Thomson Reuters. All rights reserved. 13

• Disclosure is required by law.

Further, the DG can disclose information, documents and evidence submitted by an

Domestic submissions and domestic discovery

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made in support of a leniency application may be disclosed in any of the following

• Disclosure is required by law.

• Recording its reasoning for disclosure in writing.

Domestic submissions and foreign discovery

Foreign submissions and domestic discovery

17. Does the regulatory authority in your jurisdiction co-operate with