Competition Law and Competition Advocacy by Authorities

1. Introduction

Competition advocacy refers to the activities undertaken by competition authorities to promote a competitive environment without necessarily exercising their enforcement powers against a particular infringement. It involves educating businesses, government departments, regulators, courts, policymakers and the public about the benefits of competition and identifying laws, regulations or administrative practices that may unnecessarily restrict competitive markets.

Competition advocacy is particularly important in modern economies because competition problems do not always arise from private conduct alone. Government regulations, licensing systems, subsidies, procurement rules, exclusive rights, entry restrictions and sectoral regulations can also distort competition.

Competition authorities therefore generally perform two complementary functions:

1. Competition enforcement – investigating and sanctioning anticompetitive conduct; and
2. Competition advocacy – preventing or reducing competition problems through advice, recommendations, awareness and institutional cooperation.

In India, the principal statutory framework is the Competition Act, 2002, particularly the advocacy function entrusted to the Competition Commission of India (CCI).

2. Meaning of Competition Advocacy

Competition advocacy may be understood as the process through which a competition authority:

• explains the economic and legal benefits of competition;
• advises government on competition implications of proposed legislation;
• reviews existing regulations for unnecessary competitive restrictions;
• promotes competition culture among businesses;
• conducts seminars, workshops and awareness programmes;
• publishes guidance and educational material;
• cooperates with sectoral regulators;
• encourages competition-compliant business practices; and
• makes recommendations for removing unnecessary barriers to entry or expansion.

Thus, advocacy is essentially preventive and persuasive, whereas traditional antitrust enforcement is principally investigative and corrective.

3. Competition Advocacy under the Indian Competition Act, 2002

Section 49 – Advocacy Function

Section 49 of the Competition Act, 2002 expressly recognises the advocacy role of the CCI.

Under Section 49, the Central Government may make a reference to the Commission for its opinion on the possible effect of a policy or proposal on competition, or any other matter relating to competition.

The Commission may also:

• take suitable measures for promotion of competition advocacy;
• create awareness about competition issues;
• impart training concerning competition matters; and
• disseminate information regarding competition.

The Commission's opinion in such advocacy matters is advisory rather than equivalent to an enforcement order.

This distinction is important.

Enforcement

An enforcement proceeding may result in:

• investigation;
• finding of contravention;
• monetary penalty;
• behavioural directions;
• modification of agreements;
• structural remedies in appropriate merger cases.

Advocacy

Advocacy generally involves:

• recommendations;
• consultation;
• policy advice;
• educational programmes;
• market studies;
• stakeholder engagement;
• regulatory suggestions.

4. Objectives of Competition Advocacy

A. Creating Competition Awareness

Businesses may inadvertently adopt practices that create competition risks. Advocacy helps businesses understand:

• cartel prohibitions;
• abuse of dominance;
• merger-control requirements;
• vertical restraints;
• information exchange risks;
• bid-rigging risks.

B. Improving Government Policy

A competition authority can examine whether proposed legislation unintentionally:

• protects incumbents;
• restricts market entry;
• creates artificial monopolies;
• discriminates between competitors;
• imposes unnecessary licensing requirements.

C. Removing Regulatory Barriers

Competition advocacy can identify:

• unnecessary permits;
• excessive qualification requirements;
• exclusive concessions;
• restrictions on interoperability;
• discriminatory access conditions.

D. Promoting Competition Culture

Competition law is more effective when businesses, regulators and policymakers understand its underlying economic principles.

E. Supporting Sectoral Regulators

Many industries are simultaneously governed by competition law and sector-specific legislation.

Examples include:

• telecommunications;
• electricity;
• banking;
• insurance;
• transport;
• pharmaceuticals;
• digital markets.

Advocacy allows competition authorities and sectoral regulators to coordinate their approaches.

5. Advocacy and Enforcement: Distinction

The two functions are nevertheless complementary.

A strong advocacy programme can prevent conduct that might otherwise require enforcement proceedings.

6. Forms of Competition Advocacy

6.1 Government Consultation

Competition authorities may provide comments on:

• draft legislation;
• regulations;
• government schemes;
• licensing arrangements;
• procurement rules.

6.2 Market Studies

A competition authority may conduct a market study where there is a possibility that structural or regulatory conditions are limiting competition.

Examples may include:

• e-commerce;
• digital payments;
• pharmaceuticals;
• real estate;
• transport;
• agricultural markets.

6.3 Awareness Programmes

Authorities conduct:

• conferences;
• workshops;
• seminars;
• training programmes;
• university programmes;
• business outreach.

6.4 Compliance Guidance

Authorities can explain how businesses can reduce competition-law risks.

For example, businesses may be advised about the dangers of:

• price fixing;
• market allocation;
• customer allocation;
• bid rigging;
• exchange of competitively sensitive information.

6.5 Regulatory Advice

Where another regulator is responsible for a sector, the competition authority may identify competition implications and recommend less restrictive alternatives.

7. Competition Advocacy in Digital Markets

Competition advocacy has become particularly important in digital markets.

Digital markets may exhibit:

• network effects;
• economies of scale;
• data advantages;
• switching costs;
• interoperability problems;
• platform dependence;
• self-preferencing;
• ecosystem lock-in.

Traditional enforcement can take considerable time. Advocacy can therefore address structural or regulatory problems before they develop into serious competition concerns.

For example, an authority may recommend:

• data portability;
• interoperability;
• transparent platform rules;
• non-discriminatory access;
• fair app-store practices;
• competition-neutral procurement;
• reduced switching barriers.

8. Competition Advocacy and Sectoral Regulators

Competition authorities frequently operate alongside specialised regulators.

A telecommunications regulator may regulate:

• spectrum;
• licensing;
• technical standards.

A competition authority may examine:

• abuse of dominance;
• exclusionary agreements;
• combinations;
• cartelisation.

Similarly, an electricity regulator may regulate tariffs and network access while the competition authority considers whether market participants are engaging in anticompetitive conduct.

Advocacy helps avoid a situation where sectoral regulation unintentionally creates barriers to competition.

9. Competition Advocacy and Public Procurement

Public procurement is particularly sensitive because procurement rules can either promote or restrict competition.

Advocacy may encourage:

• wider participation;
• transparent tender requirements;
• proportionate eligibility criteria;
• electronic procurement;
• detection of bid-rigging risks;
• avoidance of unnecessary exclusive arrangements.

Competition authorities can educate procurement officials about indicators of cartelisation, such as:

• identical pricing patterns;
• suspicious bid rotation;
• complementary bidding;
• repeated winners;
• unexplained withdrawal of bids.

10. Competition Advocacy and SMEs

Small and medium enterprises may lack sophisticated competition-law compliance systems.

Advocacy can therefore explain:

• when competitors can legitimately cooperate;
• what information cannot safely be exchanged;
• when distribution arrangements may create risks;
• how to participate in procurement without engaging in bid rigging.

This makes competition advocacy an important component of inclusive competition policy.

11. Competition Advocacy and Competition Assessment

Competition assessment examines whether a proposed policy or regulation is likely to affect competitive conditions.

A useful framework is:

Step 1 – Identify the market

Determine the relevant products, services and geographic area.

Step 2 – Identify regulatory restrictions

Ask whether the policy:

• restricts entry;
• limits the number of suppliers;
• controls prices;
• creates exclusive rights;
• limits advertising;
• restricts innovation;
• favours particular firms.

Step 3 – Identify the competitive effect

Determine whether the restriction could:

• increase concentration;
• facilitate coordination;
• exclude competitors;
• increase switching costs;
• reduce innovation.

Step 4 – Identify the policy objective

Determine why the restriction exists.

Possible objectives include:

• consumer safety;
• financial stability;
• environmental protection;
• national security;
• public health.

Step 5 – Examine alternatives

Ask whether the same legitimate objective can be achieved through a less restrictive competitive mechanism.

12. Important Case Laws

Competition advocacy is not always litigated as a standalone issue. Consequently, some important cases illustrate the relationship between competition authorities, regulation, government policy and competition principles, rather than being pure Section 49 advocacy proceedings.

1. CCI v. Bharti Airtel Ltd. (2018)

The Supreme Court considered the relationship between the CCI and the sectoral telecommunications regulator, TRAI.

The dispute concerned allegations relating to denial of points of interconnection and the appropriate institutional sequence for dealing with the matter.

Significance

The case demonstrates the importance of regulatory coordination.

The Supreme Court recognised the specialised role of the sectoral regulator in determining technical and regulatory issues before competition-law analysis proceeds.

Advocacy relevance

It illustrates why competition authorities must understand sector-specific regulatory frameworks and maintain institutional dialogue with specialised regulators.

2. Competition Commission of India v. Steel Authority of India Ltd. (2010)

The Supreme Court considered the statutory framework governing the CCI's investigation and the relationship between the Commission's initial assessment and subsequent investigative proceedings.

Significance

The judgment clarified important aspects of the CCI's institutional powers and procedure.

Advocacy relevance

Although principally an enforcement case, it demonstrates the institutional distinction between:

• preliminary competition assessment;
• investigation; and
• adjudicatory action.

Competition advocacy operates outside this coercive enforcement sequence and seeks to address competition concerns through persuasion and policy engagement.

3. Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India (2023)

The Supreme Court dealt with the relationship between the Patents Act and the Competition Act in the context of standard-essential patents and licensing disputes.

Significance

The case illustrates the complex interaction between:

• intellectual property regulation;
• sector-specific statutory regimes; and
• competition law.

Advocacy relevance

Competition authorities operating in technologically complex markets need to engage with specialised regulatory and intellectual-property frameworks rather than treating every market problem exclusively as a conventional antitrust issue.

4. Competition Commission of India v. Coordination Committee of Artists and Technicians of West Bengal Film and Television Investors

The matter concerned collective conduct by industry associations and the interaction between collective organisation and competition law.

Significance

The case demonstrates how industry associations can affect market access and commercial freedom.

Advocacy relevance

Competition authorities can use industry outreach to educate associations about the difference between legitimate collective activity and conduct that may restrict competition.

5. Excel Crop Care Limited v. Competition Commission of India (2017)

The Supreme Court considered cartelisation in the supply of aluminium phosphide tablets to government procurement agencies.

The Court addressed the determination of penalty and the significance of relevant turnover.

Significance

The case is a leading Indian authority concerning cartel enforcement and penalty methodology.

Advocacy relevance

The procurement context makes the case particularly relevant to competition advocacy. Procurement authorities can be educated about:

• bid-rigging indicators;
• coordinated tender participation;
• suspicious bidding patterns; and
• methods for designing tenders that facilitate genuine competition.

6. Rajasthan Cylinders & Containers Ltd. v. Union of India (2018)

The Supreme Court examined alleged cartelisation in the LPG cylinder market and considered the evidentiary requirements for establishing cartel conduct.

Significance

The judgment demonstrates that parallel conduct alone does not automatically establish a cartel; the surrounding evidence and market circumstances are important.

Advocacy relevance

Competition advocacy can help businesses and procurement authorities understand:

• what constitutes suspicious coordination;
• why legitimate parallel conduct can occur;
• the evidentiary characteristics of cartelisation.

7. Telefonaktiebolaget LM Ericsson v. Competition Commission of India – Delhi High Court proceedings

The Ericsson litigation also generated important discussion regarding the interface between competition law and intellectual-property rights.

Significance

The disputes demonstrate the institutional difficulties that may arise when two statutory regimes potentially regulate overlapping commercial conduct.

Advocacy relevance

Competition advocacy can help develop clearer regulatory approaches to:

• FRAND licensing;
• standard-essential patents;
• patent pools;
• technology licensing;
• competition and innovation.

8. Competition Commission of India v. Fast Way Transmission Pvt. Ltd. and connected matters

The CCI has considered competition issues involving cable television and broadcasting markets, including the relationship between market power and sectoral regulation.

Significance

Such cases illustrate how competition concerns may arise in industries with substantial regulatory and infrastructure components.

Advocacy relevance

Competition authorities can engage with sector regulators and industry stakeholders to encourage:

• non-discriminatory access;
• transparent commercial terms;
• reasonable infrastructure sharing;
• avoidance of exclusionary arrangements.

13. International Case Law Relevant to Competition Advocacy

9. United Brands Company v. Commission (1978)

The European Court of Justice considered the concept of dominance and exclusionary conduct.

Advocacy relevance

The case remains useful for explaining why market power analysis must examine:

• market definition;
• economic dependence;
• barriers to entry;
• commercial behaviour.

Competition authorities can use such principles in compliance guidance and policy discussions.

10. Bronner v. Mediaprint (1998)

The European Court considered the circumstances in which refusal of access to an infrastructure could potentially constitute an abuse of dominance.

Advocacy relevance

The case is particularly relevant to regulatory discussions concerning:

• essential infrastructure;
• access;
• interoperability;
• infrastructure sharing.

It illustrates the importance of distinguishing legitimate commercial freedom from circumstances where exclusionary conduct may raise competition concerns.

11. IMS Health GmbH & Co. OHG v. NDC Health (2004)

The European Court addressed intellectual property, market access and refusal to license.

Advocacy relevance

The case provides an important framework for discussing competition and intellectual-property policy, particularly where control over an important information structure can affect downstream competition.

12. Microsoft Corp. v. Commission (2007)

The European Union courts examined Microsoft's conduct concerning interoperability information and tying.

Advocacy relevance

The case is highly relevant to competition advocacy in digital markets because it demonstrates the importance of:

• interoperability;
• platform access;
• technological standards;
• tying;
• innovation.

Authorities can use such principles when advising policymakers on digital-market regulation.

14. Competition Advocacy and Government Monopolies

Government-created monopolies require particular attention.

A statutory monopoly may be justified where there are:

• natural monopoly characteristics;
• public safety considerations;
• national security concerns;
• universal-service objectives.

However, competition advocacy can ask whether monopoly rights are:

• necessary;
• proportionate;
• time-limited;
• subject to competitive neutrality.

The objective is not necessarily to eliminate public regulation but to ensure that regulation does not impose unnecessary restrictions on competitive markets.

15. Competition Advocacy and State-Owned Enterprises

Competition advocacy is also important where state-owned enterprises operate alongside private firms.

The principle of competitive neutrality suggests that enterprises should not receive unjustified competitive advantages merely because of state ownership.

Potential concerns include:

• preferential financing;
• exclusive government contracts;
• regulatory exemptions;
• preferential access to infrastructure;
• government guarantees.

Competition advocacy can encourage governments to design rules that distinguish legitimate public-service obligations from unnecessary competitive advantages.

16. Competition Advocacy and Consumer Welfare

Competition advocacy ultimately seeks to promote conditions that can produce:

• lower prices;
• better quality;
• greater choice;
• innovation;
• improved productivity;
• efficient resource allocation.

However, advocacy should not mechanically equate competition with the lowest possible price.

Competition may also concern:

• innovation;
• quality;
• privacy;
• variety;
• service reliability;
• technological development.

This is particularly important in digital and technology markets where services may be offered at a monetary price of zero.

17. Limitations of Competition Advocacy

Competition advocacy also has limitations.

1. Non-binding character

An authority's recommendation may not necessarily bind the government or another regulator.

2. Institutional resistance

Existing regulators or government departments may resist changes to established regulatory arrangements.

3. Conflicting public objectives

Competition may have to be balanced against:

• public health;
• safety;
• environmental protection;
• financial stability;
• national security.

4. Information limitations

Competition authorities may not possess all the technical information necessary to evaluate a highly specialised sector.

5. Enforcement gap

Advocacy cannot substitute for enforcement where a clear competition-law violation exists.

18. Best Practices for Effective Competition Advocacy

An effective authority should:

1. conduct evidence-based market studies;
2. engage stakeholders before making recommendations;
3. coordinate with sectoral regulators;
4. identify measurable competition effects;
5. distinguish legitimate regulation from unnecessary restrictions;
6. publish transparent reasoning;
7. provide practical compliance guidance;
8. undertake follow-up assessments;
9. educate SMEs and public procurement officials;
10. incorporate economic and technological expertise.

19. Difference Between Competition Advocacy and Regulatory Advocacy

These concepts should not be confused.

Competition advocacy asks:

How can the regulatory environment preserve and promote competitive market conditions?

Regulatory advocacy by an industry participant may instead ask:

How can regulation be changed to benefit a particular commercial interest?

A competition authority must therefore maintain institutional neutrality and focus on competition and consumer welfare rather than individual commercial interests.

20. Emerging Importance of Competition Advocacy

Competition advocacy is increasingly significant in:

Artificial Intelligence

Authorities may advise on:

• access to compute;
• foundation-model ecosystems;
• training data;
• interoperability;
• cloud dependence.

Digital Platforms

Issues include:

• self-preferencing;
• app-store restrictions;
• data portability;
• interoperability;
• switching costs.

Energy Transition

Advocacy may concern:

• charging infrastructure;
• battery standards;
• hydrogen infrastructure;
• electricity-grid access;
• carbon markets.

Healthcare

Authorities may examine:

• hospital licensing;
• pharmaceutical procurement;
• health-data access;
• medical-device standards.

Financial Technology

Issues may include:

• API access;
• payment interoperability;
• digital identity;
• data portability;
• platform access.

21. Conclusion

Competition advocacy is a preventive pillar of competition policy. It complements conventional antitrust enforcement by addressing competition problems before they necessarily become infringements requiring penalties or litigation.

Under India's Competition Act, 2002, Section 49 provides an express statutory basis for the CCI's advocacy function. Through policy consultation, market studies, awareness programmes, stakeholder engagement and regulatory recommendations, the CCI can influence the competitive environment beyond individual enforcement proceedings.

The central principle is that competition policy should not operate only after markets have been harmed. Effective advocacy attempts to ensure that legislation, regulation, procurement systems and commercial practices are designed from the outset in a manner that permits effective competition.