BMW India files appeal against single Judge's order favouring CCI

The matter is related to the CCI's order to investigate all car manufacturers on alleged restrictive trade practices

Automobile major BMW India Pvt Ltd has filed an appeal in Madras High Court against a single Judge order, which was in favour of the Competition Commission of India (CCI) and the Director General (DG), CCI. The order allows the competition watch dog to expand its investigation to all car manufacturers in a petition against three car manufacturers.

Justice V Ramasubramanian, in an order dated February 4, 2015, dismissed all the contentions raised by the German luxury car maker and said that the DG, CCI's investigation arm, did not overstepped the jurisdiction vested on them by the Act. The dispute emerged after the Competition Commission gave nod to the DG to investigate all the car manufacturers on alleged restrictive and unfair trade practices, in a petition filed by an individual against three automobile firms - Honda, Volkswagen and FIAT.

An appeal, filed by BMW through the law firm L Maithili & Associates, sought the division bench to set aside the order of the Single Judge and call for the records from the CCI and quash the order of CCI. The appeal is tagged along with a similar petition from Korean car manufacturer Hyundai.

BMW says that the Single Judge has failed to appreciate that the DG erred in initiating suo moto against all car manufacturers, when the complaint was against three car manfucturers. It stated that there were no material before the Commission to show that any car manufacturer apart from those three, were engaged in restrictive or unfair trade practice. The only material placed by the DG was a report, the details of which has not been provided to the company.

It alleged that by making a request to the the Commission to widen the scope of the investigation, the DG became an informant, which is agains the Act. CCI's order dated April 26,2011 to investigate all the car manufacturers does not reflect any application of mind by the Commission to the information received against the BMW and other car manufacturers, which were not mentioned in the complaint. The Judge erred in holding that the DG could be considered a person, who would first furnish information and then assume the role ofan investigating officer, carrying out investigation triggered by his own information, it said.

The Commission dated April 26 was not an order directing expansion of the scope of the investigation, but it was merely an approval of a request made by the Director General for expanding the scope of the investigation.

It argues that the DG seeking approval for initiating investigation amounts to a suo moto exercise of powers not conferred on him by the Act. The Judge erred in holding that the impugned order of the Commission was a direction under Section 41(1) of the Act, it said.

It may be noted that a Division Bench of Madras High Court, earlier this week, has asked the CCI not to pass any order against Hyundai Motor's Indian arm till the Court gives its final Order, in a similar petition. The Bench however did not give stay for the Single Judge order, which asked Hyundai to take part in the CCI's ongoing investigation against all the major car makers in country for alleged violation of trade norms in after-services market and spare parts.