ERGO analysis affects business development: CCI concludes that it does not violate the bearing manufacturer-Lexology

2021-11-08 09:36:30 By : Ms. Lisa Yufen

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The Competition Commission of India (CCI) has passed the final order on the cartelization of the supply of bearings (automotive and industrial) on October 21, 2021, Suo Motu Case No. 7(02) of 2014. The investigation was conducted against NSK Ltd., Japan, NSK International (Singapore) Pte. Co., Ltd. and NSK Bearing India Pvt. Co., Ltd. (NSK); Japan JTEKT Corporation and Koyo Bearing India Co., Ltd. (JTEKT); and Japan NTN Corporation (NTN).

The investigation was initiated on the basis of a leniency application submitted by NSK, and CCI formed a preliminary view of violating the 2002 Competition Law (Competition Law) and instructed the Director General of CCI (DG) to submit an investigation report. During the investigation, JTKET also submitted a leniency application to CCI.

DG submitted an investigation report and concluded that NSK, JTKET, and NTN violated the competition law for certain requests for information (RFI) issued by an automotive OEM outside India to purchase front and rear wheel bearings, its upcoming models.

DG also submitted a supplementary investigation report under the instructions of CCI and found that NSK, JTKET, and NTN violated the competition law regarding the wheel bearing RFQ issued by an automotive OEM outside India.

CCI analysis 

CCI observed that although DG investigated various bearing manufacturers, it concluded that it only violated the Competition Law for NSK, JTKET and NTN, and was only relevant in two cases.

For the first RFI related to the front and rear wheel bearings, CCI observed that the telephone discussions between the employees of NSK, JTKET and NTN clearly established the RFI. However, CCI found a contradiction between the cross-examination of NSK and JTKET employees. In addition, according to section 65B of the Indian Evidence Act (Evidence Act) of 1872, the written evidence (ie, computer printout) submitted by NSK and JTKET is not supported by the certificate. Therefore, in the absence of such certificates and established legal principles, CCI cannot rely on any such secondary evidence. Since secondary evidence cannot be relied on, the only remaining evidence is personal oral testimony, which is not enough to establish coordination between NSK, JTKET and NTN in the Indian market. 

Regarding the second enquiry for wheel bearings, CCI observed that the statements of NSK, JTKET and NTN employees were out of sync with each other. Therefore, the available materials are not sufficient to prove the fact that a meeting was held or any discussion related to prices took place. In addition, it is not possible to obtain a certificate under Article 65B of the Evidence Law, nor to determine the date and time of such documents. Therefore, based on these, it cannot be determined to violate the Competition Law.

CCI also noted that leniency applicants did not provide sufficient details and important details to support the statement they made in the leniency application. 

CCI concluded that the evidence provided by the DG and Leniency Applicant was insufficient in nature and could not bring any violation cases against the bearing manufacturer; and directed the end of the investigation.

All leniency applications do not necessarily result in fines imposed on the defendants of such applicants. Since the CCI's order was not passed under Article 27 of the Competition Act, no party has the right to appeal to the Court of Appeal under the Competition Act.

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