Competition Law and Competition Authority Advocacy Functions

1. Introduction

Competition law is not limited to investigating cartels, abuse of dominance, or anti-competitive mergers. A modern competition authority also performs an important competition advocacy function: it promotes a culture in which governments, regulators, businesses, professional bodies, consumers, and academics understand the benefits of competition and take competition concerns into account before harmful market structures or practices develop.

In India, this role is expressly recognized under Chapter VII, particularly Section 49 of the Competition Act, 2002. Section 49 allows the Central or State Government to seek the Commission's opinion on the possible effects of a policy on competition. The Commission's opinion is advisory and non-binding, while Section 49(3) requires the Commission to take suitable measures for competition advocacy, awareness and training.

The Competition Commission of India (CCI) describes advocacy as including seminars, conferences, workshops, stakeholder interaction, legislative competition assessments, publications, training and other outreach activities.

2. Meaning of Competition Advocacy

Competition advocacy means activities undertaken by a competition authority to promote competitive markets through means other than direct enforcement against a particular undertaking.

It generally includes:

1. advising governments on competition implications of policies;
2. reviewing proposed legislation and regulations;
3. educating businesses about competition law;
4. training government officials and regulators;
5. encouraging voluntary compliance;
6. educating consumers;
7. engaging industry associations;
8. conducting market studies;
9. disseminating competition-law guidance;
10. promoting competition principles in regulated sectors;
11. developing academic and professional capacity; and
12. encouraging competition-neutral public procurement and regulatory design.

The CCI itself describes advocacy and enforcement as complementary functions: enforcement addresses violations, whereas advocacy seeks to create conditions in which anti-competitive conduct is less likely to arise.

3. Statutory Framework in India

A. Section 18 – General duty of the CCI

Section 18 establishes the broad statutory mission of the Commission.

The CCI is required to:

• eliminate practices having adverse effect on competition;
• promote and sustain competition;
• protect consumer interests;
• ensure freedom of trade; and
• undertake functions necessary for achieving these objectives.

Thus, advocacy is connected to the broader statutory objective of maintaining competitive markets. The CCI itself identifies Section 18 as part of the foundation for its enforcement, economic and advocacy functions.

B. Section 49(1) – Government references

Section 49(1) provides an important formal advocacy mechanism.

The Central Government or State Government may refer a competition-policy issue to the CCI and ask for its opinion regarding the possible effect of the proposed policy on competition.

The Commission is required to provide its opinion within the statutory period.

This enables the authority to intervene before a competition problem becomes an enforcement case.

Example

Suppose a proposed licensing regulation:

• unnecessarily limits the number of market entrants;
• creates exclusive rights;
• imposes discriminatory access requirements; or
• gives an incumbent government-linked undertaking preferential treatment.

The Government can seek the CCI's competition assessment.

4. Non-Binding Character of Advocacy Advice

An important limitation is that the CCI's Section 49 opinion is not binding on the Government.

This preserves the separation between:

• competition expertise; and
• democratic policy-making.

The CCI identifies the competition consequences, while the Government remains responsible for deciding whether and how to adopt the recommendation.

Therefore, advocacy is different from adjudication.

Enforcement

The authority can make legally binding orders where statutory requirements are satisfied.

Advocacy

The authority generally provides:

• analysis;
• recommendations;
• education;
• warnings;
• guidance; and
• policy advice.

This distinction is essential because competition advocacy should inform public policy without transforming the competition authority into the general policy-maker of the State.

5. Section 49(3) – Awareness and Training

Section 49(3) specifically requires the Commission to undertake measures for:

• promotion of competition advocacy;
• creating awareness; and
• imparting training about competition issues. 

The CCI's present advocacy structure includes:

• advocacy publications;
• training programmes;
• academic events;
• seminars and conferences;
• stakeholder engagement;
• roadshows;
• competition assessments; and
• educational material. 

6. Major Advocacy Functions of a Competition Authority

6.1 Legislative advocacy

Competition authorities can review draft:

• legislation;
• regulations;
• rules;
• licensing systems;
• sectoral policies; and
• government schemes.

The objective is to identify provisions that unnecessarily restrict market competition.

Common competition concerns

A proposed law may:

• restrict entry;
• create exclusive privileges;
• discriminate between competitors;
• facilitate information exchange;
• impose unnecessary price controls;
• restrict interoperability;
• create artificial geographical restrictions; or
• favour incumbents.

A competition authority can recommend less restrictive alternatives.

7. Competition Assessment of Government Policies

A competition authority can evaluate policies using questions such as:

Entry

Does the policy unnecessarily prevent new firms from entering?

Expansion

Does it make it difficult for smaller competitors to expand?

Rivalry

Does it reduce incentives for firms to compete on price, quality or innovation?

Consumer choice

Does it reduce available choices?

Neutrality

Does the policy favour a particular undertaking or category of undertaking?

Information

Does the policy facilitate coordination among competitors?

Innovation

Does the regulatory framework discourage technological or business-model innovation?

This approach is increasingly important in digital markets, energy, transport, telecommunications and financial services.

8. Regulatory Advocacy

Many markets are regulated by authorities other than the competition authority.

Examples include:

• telecommunications;
• electricity;
• banking;
• insurance;
• aviation;
• railways;
• pharmaceuticals;
• ports;
• natural gas;
• digital platforms.

Competition advocacy enables the competition authority to communicate with sector regulators.

This avoids situations where a sector-specific regulation unintentionally produces:

• foreclosure;
• discriminatory access;
• excessive concentration;
• barriers to entry; or
• preferential treatment.

The European Commission has similarly recognized competition advocacy as complementary to enforcement because private restrictions cannot be effectively addressed if public regulatory arrangements themselves facilitate anti-competitive outcomes.

9. Advocacy Directed at Businesses

A competition authority should not merely punish enterprises after violations occur.

It can educate them beforehand.

Typical compliance subjects include:

• cartel prohibition;
• price fixing;
• market allocation;
• bid rigging;
• resale-price restrictions;
• abuse of dominance;
• information exchange;
• merger notification;
• digital-platform conduct;
• trade-association meetings; and
• dawn-raid procedures.

The CCI maintains compliance and advocacy material aimed at improving understanding of competition law.

10. Advocacy and Trade Associations

Trade associations can create significant competition risks because competitors meet and exchange information through them.

Competition advocacy therefore educates associations about:

• permissible information exchange;
• benchmarking;
• industry statistics;
• meetings;
• pricing discussions;
• recommended prices;
• membership restrictions; and
• collective negotiations.

The objective is not to prevent legitimate industry cooperation but to distinguish legitimate cooperation from coordination that restricts competition.

11. Advocacy and Public Procurement

Public procurement is particularly vulnerable to:

• bid rigging;
• cover bidding;
• bid rotation;
• market allocation;
• collusive tendering; and
• information exchange.

Competition authorities therefore conduct training for procurement officials.

The CCI has developed advocacy material and diagnostic tools directed toward procurement officials.

A procurement authority trained in competition principles may detect suspicious patterns before substantial public resources are lost.

12. Advocacy and Market Studies

Market studies are another important advocacy instrument.

A market study can examine:

• market structure;
• entry barriers;
• concentration;
• pricing;
• consumer behaviour;
• regulatory restrictions;
• access conditions;
• technological developments; and
• innovation.

The resulting findings can inform both enforcement priorities and government policy.

The CCI's Economics Division expressly undertakes market studies that can inform enforcement and advocacy priorities.

13. Advocacy in Digital Markets

Competition advocacy has become particularly important in:

• artificial intelligence;
• app stores;
• cloud computing;
• digital advertising;
• online marketplaces;
• payment systems;
• data markets;
• search engines;
• social media; and
• platform ecosystems.

Traditional competition concepts may not always be easily understood by emerging businesses.

Authorities can therefore issue guidance concerning:

• self-preferencing;
• tying;
• interoperability;
• data portability;
• platform neutrality;
• algorithmic coordination;
• exclusionary contracts;
• switching costs; and
• access to essential digital infrastructure.

The CCI specifically notes that advocacy approaches must evolve in response to digitalisation and innovative disruption.

14. Advocacy and Competition Culture

The ultimate purpose is to develop a competition culture.

A mature competition culture means that:

Government officials

consider competition effects while drafting policies.

Businesses

consider competition law during commercial decision-making.

Trade associations

avoid facilitating coordination.

Regulators

consider competitive neutrality.

Consumers

understand the benefits of competition.

Universities

develop competition-law and economics expertise.

Thus, advocacy operates as a form of preventive competition policy.

15. Competition Advocacy and Enforcement Compared

Both functions reinforce each other.

16. Important Case Laws

1. Brahm Dutt v. Union of India

The litigation surrounding the Competition Act concerned the institutional design and adjudicatory structure of the competition regime.

The case is important for understanding the institutional development of the CCI. During the period before the full enforcement provisions became operational, the Commission's operative role included the advocacy mandate.

Principle

Competition authorities require an institutional structure capable of performing both:

• enforcement; and
• broader competition-policy functions.

The case therefore provides important historical context for the development of the CCI's advocacy role.

2. Excel Crop Care Ltd. v. Competition Commission of India

Supreme Court of India, 2017

This case concerned cartelisation in the aluminium phosphide tablet market and the principles governing penalties.

Advocacy significance

The case illustrates why competition authorities must communicate clearly about:

• cartel risks;
• trade-association conduct;
• information exchange;
• pricing coordination; and
• compliance programmes.

Enforcement cases such as Excel Crop Care become important educational material for future compliance.

Principle

Effective enforcement and effective competition advocacy are complementary: enforcement establishes legal consequences while advocacy communicates the behavioural boundaries of competition law.

3. Competition Commission of India v. Steel Authority of India Ltd. (SAIL)

Supreme Court of India, 2010

The Supreme Court examined the nature of proceedings initiated under the Competition Act and the statutory structure governing CCI proceedings.

Advocacy significance

The case demonstrates the distinction between:

• information and preliminary proceedings;
• investigation;
• adjudicatory proceedings; and
• final enforcement.

That distinction is relevant to advocacy because businesses need to understand when conduct may attract competition scrutiny and why internal compliance systems matter.

Principle

Competition advocacy should educate enterprises about the statutory architecture before enforcement consequences arise.

4. Competition Commission of India v. Bharti Airtel Ltd.

Supreme Court of India, 2019

This is particularly important for competition authorities operating in regulated industries.

The dispute involved the relationship between the CCI and the Telecom Regulatory Authority of India (TRAI).

The Supreme Court recognized the need to respect the specialized regulatory framework before the CCI exercised its competition jurisdiction in the particular circumstances of the dispute.

Advocacy significance

The case illustrates the importance of regulatory coordination.

Competition authorities should engage with sector regulators where:

• technical regulation overlaps with competition law;
• market-access conditions are determined by a sector regulator; or
• regulatory decisions affect competitive conditions.

Principle

Competition advocacy can help establish institutional coordination mechanisms between competition authorities and sector regulators.

5. Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India

Delhi High Court

The Delhi High Court examined the CCI's statutory role and the broader structure of competition regulation.

The judgment discusses the CCI's role in:

• enforcement;
• combinations;
• competition advocacy;
• policy opinions; and
• international cooperation. 

Advocacy significance

The decision demonstrates that advocacy is not an accidental or peripheral function. It forms part of the CCI's statutory responsibilities alongside enforcement.

Principle

The CCI performs a broader regulatory and policy-oriented competition function rather than merely acting as an adjudicator of individual disputes.

6. Mahindra Electric Mobility Ltd. v. Competition Commission of India

Delhi High Court, 2019

This case concerned issues arising in the automobile/automotive-component competition context.

The judgment discusses the broad functions of the CCI, including:

• combination review;
• economic analysis;
• competition advocacy;
• policy opinions;
• international cooperation; and
• enforcement.

The Court's discussion specifically recognizes competition advocacy as involving awareness, training and giving opinions concerning government policies.

Principle

The CCI's functions extend beyond punishment of anti-competitive conduct and include participation in the development of competition-oriented public policy.

7. Union of India v. Competition Commission of India

Delhi High Court

This case concerned the applicability of competition law to the Indian Railways.

The Court rejected the argument that governmental operation of the railway system automatically placed the activity outside competition law and recognized the CCI's jurisdiction in relation to relevant economic activities. UNCTAD identifies this case as an important judicial development supporting competitive neutrality concerning state-owned activities.

Advocacy significance

The case illustrates why competition authorities need to communicate the principle of competitive neutrality:

Government ownership by itself should not automatically become a shield against competition scrutiny where the activity constitutes economic activity covered by competition law.

8. Samir Agarwal v. Competition Commission of India

Supreme Court of India, 2020

The Supreme Court considered who may provide information to the CCI.

The Court recognized the public-interest character of competition proceedings and held that information could be provided by a person even where that person was not personally affected in the conventional sense. The CCI's annual report notes that the Court characterized competition proceedings as in rem and emphasized the public purpose of the legislation.

Advocacy significance

The case supports broad public participation in competition enforcement.

Competition advocacy can therefore educate:

• consumers;
• competitors;
• associations;
• employees;
• market participants; and
• other stakeholders

about mechanisms through which competition concerns can reach the authority.

17. Advocacy and Competitive Neutrality

One of the most important functions of a competition authority is to promote competitive neutrality.

Competitive neutrality means that enterprises should generally compete under comparable competitive conditions regardless of whether they are:

• privately owned;
• government owned;
• state-controlled; or
• otherwise benefiting from government-linked advantages.

Advocacy can identify:

• preferential procurement;
• exclusive government rights;
• discriminatory licensing;
• subsidized access;
• preferential infrastructure access;
• regulatory exemptions; and
• discriminatory taxation.

The objective is not necessarily to prohibit government intervention but to identify whether the intervention unnecessarily distorts competition.

18. Advocacy and Competition Assessment of Legislation

A competition authority can use a structured test:

Step 1 – Identify the affected market

Determine which products, services and geographic markets are affected.

Step 2 – Identify restrictions

Ask whether the proposal:

• restricts entry;
• restricts rivalry;
• controls prices;
• limits output;
• restricts access;
• increases switching costs; or
• facilitates coordination.

Step 3 – Identify public objectives

Determine whether the restriction pursues legitimate objectives such as:

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

Step 4 – Test necessity

Ask whether the restriction is necessary to achieve that objective.

Step 5 – Examine alternatives

Determine whether a less restrictive alternative could achieve substantially the same policy objective.

Step 6 – Provide competition recommendations

The authority can suggest:

• open access;
• transparent criteria;
• competitive tendering;
• non-discriminatory licensing;
• interoperability;
• sunset clauses; or
• periodic review.

19. Advocacy and Consumer Welfare

Competition advocacy ultimately benefits consumers through:

• lower prices;
• greater choice;
• better quality;
• innovation;
• improved service;
• easier market entry; and
• reduced switching barriers.

However, advocacy should not equate every government regulation with a competition problem.

A proper competition assessment balances:

competition effects + legitimate public-policy objectives + less restrictive alternatives.

20. Advocacy in Public Sector Markets

Public-sector enterprises can create particular competition concerns.

The authority may therefore educate public enterprises about:

• Section 3;
• Section 4;
• procurement practices;
• information exchange;
• discriminatory access;
• exclusive arrangements;
• tender participation; and
• compliance programmes.

The CCI expressly identifies Central and State PSUs among its advocacy stakeholders.

21. Advocacy and Academia

Universities and research institutions are important because competition law requires interdisciplinary expertise.

Competition authorities therefore support:

• moot courts;
• conferences;
• lectures;
• research;
• internships;
• academic publications;
• economics programmes; and
• professional training.

The CCI's current advocacy framework specifically includes academic events and an internship programme as part of its awareness and capacity-building activities.

22. International Competition Advocacy

Competition markets are increasingly global.

Authorities therefore cooperate through:

• international conferences;
• bilateral arrangements;
• multilateral networks;
• comparative research;
• technical assistance; and
• coordinated policy discussions.

This is particularly relevant to:

• multinational mergers;
• digital platforms;
• global cartels;
• cross-border data markets;
• international supply chains; and
• global technology companies.

23. Limitations of Competition Advocacy

Competition advocacy also has limitations.

1. Non-binding recommendations

Government authorities may choose not to follow the CCI's advice.

2. Institutional overlap

Sector regulators may have statutory powers that overlap with competition concerns.

3. Resource constraints

A competition authority cannot conduct detailed competition assessments of every policy.

4. Political and social objectives

Government policy may legitimately pursue objectives beyond economic efficiency.

5. Lack of immediate remedy

Advocacy may not provide an immediate solution where an established anti-competitive practice already exists.

6. Risk of regulatory overreach

The competition authority should distinguish advocacy from assuming the policy-making functions of elected governments or specialized regulators.

24. Modern Advocacy Challenges

Competition authorities increasingly need to address:

Artificial intelligence

• algorithmic coordination;
• access to computing infrastructure;
• data advantages;
• foundation-model ecosystems.

Digital platforms

• self-preferencing;
• tying;
• interoperability;
• platform neutrality.

Green markets

• sustainability agreements;
• environmental standards;
• green procurement.

Energy

• grid access;
• charging infrastructure;
• hydrogen infrastructure;
• renewable-energy markets.

Financial technology

• payment interoperability;
• API access;
• digital banking;
• data portability.

Healthcare

• hospital networks;
• pharmaceutical distribution;
• health-data platforms.

Advocacy allows authorities to develop understanding before these markets produce mature enforcement disputes.

25. Relationship Between Advocacy and Competition Compliance

A modern competition compliance programme should contain:

Board awareness → employee training → risk identification → internal controls → monitoring → reporting → corrective action.

Competition authorities can facilitate this process by publishing:

• compliance manuals;
• sector guidance;
• FAQs;
• training materials;
• enforcement summaries;
• case studies; and
• diagnostic tools.

The CCI currently publishes advocacy booklets and compliance-oriented materials as part of its advocacy programme.

26. Enforcement–Advocacy Feedback Loop

A useful way of understanding the function is:

Market problem
↓
Enforcement / market study
↓
Identification of competition risk
↓
Guidance and advocacy
↓
Business and government awareness
↓
Voluntary compliance / regulatory reform
↓
Reduced future violations

Therefore, enforcement generates knowledge that can improve advocacy, while advocacy can reduce the need for future enforcement.

27. Key Principles Emerging from the Case Law

The cases discussed above collectively illustrate several principles:

1. Competition advocacy is a statutory function, not merely a public-relations exercise.
2. The CCI has a role extending beyond individual infringement cases.
3. Government policies can have competition consequences.
4. Sector regulators and competition authorities may need institutional coordination.
5. Competitive neutrality is an important competition-policy concern.
6. Competition proceedings serve a public-interest function.
7. Businesses benefit from advance guidance regarding prohibited conduct.
8. Competition authorities can contribute economic and legal expertise to policy formulation.
9. Advocacy is generally preventive rather than punitive.
10. Advocacy and enforcement are complementary pillars of competition policy.

28. Conclusion

Competition authority advocacy is the preventive and policy-oriented side of competition law. While enforcement reacts to anti-competitive conduct, advocacy attempts to create an environment in which competitive markets can function effectively before violations occur.

In India, Section 49 of the Competition Act, 2002 gives the CCI a formal advocacy mandate encompassing government policy advice, competition awareness and training.

The judicial decisions in Brahm Dutt, Excel Crop Care, SAIL, Bharti Airtel, Ericsson, Mahindra Electric, Union of India v. CCI, and Samir Agarwal demonstrate different dimensions of the institutional role of a competition authority: enforcement, regulatory coordination, public participation, competitive neutrality, economic analysis and policy-oriented competition functions.