Mechanism for Resolving Jurisdictional Conflicts between Competition Commission & Sector Regulators by the Supreme Court of India in CCI v. Bharti Airtel: A Possible Approach for the Current EU cases in the Digital Sphere

Abstract

The mandate of the Competition Commission of India (CCI)2 and certain sector regulators in India are overlapping to the extent that both the authorities are empowered to take measures to facilitate competition. Recently, the Supreme Court of India, while adjudicating on the issue of jurisdictional conflict between CCI and Telecom Regulatory Authority of India (TRAI), has held that insofar as issues that are regulated by TRAI Act are concerned, in the first instance, TRAI will decide these questions. Once that has been determined and TRAI has provided information that the particular act appears to be anticompetitive, only thereafter, CCI gets jurisdiction to go into the question of such anticompetitive practice.3 This approach by Supreme Court can be expected to be followed in subsequent cases relating to overlap of jurisdiction between CCI and other sector regulators in addition to TRAI. ... While the judgment has to be appreciated for clarifying the roles of both the authorities, it poses certain new problems that have not been taken into consideration by the court. The article looks at each of these problems individually and suggests that while the mechanism suggested by the Supreme Court gives an answer for the fact-specific situation, it still requires further elucidation in as much as it does not take into account all the case scenarios. The article further makes a comparison of the judgment with the Facebook case decided by the German competition authority, Federal Cartel Office (FCO)4 and how the mechanism proposed by Supreme Court can give way to a new approach to be followed in cases of overlap of jurisdiction between authorities.