The Competition Commission of India imposed a hefty  collective penalty of Rs. 1,788 crore vide its Order on  the country’s top tyre manufacturers namely, Apollo Tyres Limited, MRF Ltd.,  CEAT Ltd., JK Tyre and Industries Ltd., Birla Tyres Ltd. and the Automotive  Tyre Manufacturers Association (“ATMA”). They were all held liable for  anti-competitive behaviour. It was  alleged that the manufacturers controlled over 90% of the tyre production in  India were engaged in price parallelism under the aegis of ATMA and were  accordingly in violation of Section 3 the Competition  Act, 2002 (‘Act’).
Section 3 of the Act prohibits anti-competitive  agreements from being entered into if they “cause or are likely to cause an  appreciable adverse effect on competition(‘AAEC’) within India. Anti-competitive agreements may include Horizontal and Vertical Agreements.
			
				Section 3(3) of the Act refers to Horizontal  Agreements, which is an agreement between enterprises, each of which operates  at the same level in the production or distribution chain. Section 3(3)(a) and  3(3)(b) deal with agreements that directly or indirectly determine purchase or  sale prices; lead to the fixing of prices, limiting or controlling  output/supply etc.
The Director General (“DG”), CCI in his Report  examined the structure of the domestic tyre market and found it to be highly  concentrated with the manufacturers having a combined market share in terms of  turnover of around 83% of the total industry turnover. The DG based on the  evidence suggested that there is a strong indication that the manufacturers had  acted in a concerted manner to increase and maintain the tyre prices at higher  levels despite a significant decline in the prices of natural rubber and other  key raw materials. It was observed by the DG that mere parallel pricing in an  oligopolistic market structure alone is not sufficient to infer the existence  of a cartel amongst the manufacturers. Therefore, certain ‘Plus Factors’,  beyond ‘Conscious Parallelism’, were to be looked at, these were (i) existence  of price parallelism amongst the manufacturers; (ii) financial performance of  the manufacturers; (iii) cost analysis of key raw materials; (iv) circumstances  conducive for collusion; and (v) evidence of communication exchanged amongst  the manufacturers, to conclusively establish the existence of a cartel amongst  the tyre manufacturers.
			
				The CCI agreed with the DG stated that the  existence of an anti-competitive practice or agreement must be inferred from a  number of co-incidences and indicia which, if taken together, may, in the  absence of any other plausible explanation, constitute evidence of the  existence of an anti-competitive agreement. The Commission observed that the  market was highly concentrated with a few players holding a large chunk of the  market indicating a strong possibility of a conducive environment for collusive  behaviour. The Commission observed that the prices charged by the manufacturers  had been moving in tandem clearly exhibiting price parallelism.
The Commission  concluded that the manufacturers had indulged in cartelisation under the aegis of ATMA  during the year 2011-12. This was held to be in contravention of the provisions  of Section 3(3) read with Section 3(1) of the Act as it had an AAEC in India. The Commission noted  that the manufacturers, by way of tacit co-ordination, had not only increased  the prices but also have limited and controlled the production and supply in  the market which is a clear contravention the provisions of Section 3(3)(a) and  3(3)(b) read with Section 3(1) of the Act.
			
By - Arush Khanna & Suradhish Vats
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