Monitoring Agencies In Indian Competition Law: Practice And The Road Ahead

1. INTRODUCTION

The Competition Commission of India (CCI) is India’s apex competition regulator, entrusted with ensuring market integrity and correcting competitive distortions. A critical aspect of the CCI’s mandate lies not only in identifying anti-competitive conduct, but also in designing and implementing remedies that effectively address competition concerns.

While monetary penalties and ‘cease and desist’ orders remain key remedial tools under Indian competition law, the CCI has increasingly relied on structural and behavioural remedies, particularly in complex matters where restoring or preserving competition requires forward-looking intervention. The success of such remedies does not turn solely on their formulation at the decisional stage but also depends, in large measure, on the effectiveness of their implementation and ongoing compliance.

It is in this context that the CCI’s practice of engaging monitoring agencies (MA) assumes practical significance. MAs are appointed to oversee compliance with remedies, serving a dual function. On one hand, they act as the ‘eyes and ears’ of the CCI, operating as an extension of supervisory capacity, particularly in matters involving technical, sector-specific, or long-term obligations, providing expertise while also mitigating constraints on regulatory capacity. On the other hand, for parties, MAs can streamline compliance and provide a bridge to the regulator, thereby reducing regulatory uncertainty. Overall, MAs contribute to improved time and cost efficiencies in the execution of remedies for parties and the regulator alike. As the CCI’s remedial toolkit has evolved, MAs have therefore emerged as a key institutional mechanism within Indian competition enforcement.

2. REVAMPED REGULATORY FRAMEWORK: FROM MERGER CONTROL TO SETTLEMENTS AND COMMITMENTS

Historically, the appointment of MAs was confined to merger control. The Competition Act, 2002 (Competition Act), read with the erstwhile CCI (Procedure in regard to the transaction of Business relating to Combinations) Regulations, 2011 (2011 Combination Regulations), envisaged the engagement of MAs to oversee the implementation of remedies.¹ Typically, the CCI utilised this mechanism in merger decisions involving both structural remedies (one-time measures to maintain or restore the competitive structure of the market e.g., through divestiture of whole or part of a business) and behavioural remedies (conduct-based obligations affecting the future behaviour of a merged entity e.g., commitments relating to non-exclusive licensing on fair, reasonable and non-discriminatory (FRAND) terms,² hold-separate obligations,³ and compliance with capacity commitments on domestic and international routes⁴).

This position has evolved materially following recent legislative reforms. The Competition (Amendment) Act, 2023 (2023 Amendment) introduced a novel framework for settlements and commitments in cases involving alleged contraventions of Sections 3(4) and 4 of the Competition Act (i.e., vertical restraints and abuse of dominance, respectively).⁵ Under this framework, parties facing investigation offer to modify their conduct, and where the CCI determines that the proposed modifications sufficiently address the identified competition concerns, the investigation may be closed. Much like merger remedies, settlements and commitments may take the form of structural or behavioural remedies, or a combination of both. Where such remedies are technical, complex or subsist over a long period, their implementation naturally requires ongoing oversight.

Reflecting this expanded remedial architecture, the procedure governing MAs, which had previously been set out under the 2011 Combination Regulations, has been shifted to the revised CCI (General) Regulations, 2024 (2024 General Regulations).⁶ The 2024 General Regulations now empower the CCI to appoint MAs not only for merger matters, but also in settlements and commitments cases, significantly broadening the potential scope of the MA framework.

Under the 2011 Combination Regulations, the framework governing MAs was relatively sparse. The CCI could appoint an agency where the implementation of modifications to a combination required supervision.⁷ The agency was required to have no conflict of interest with the parties, and the regulations indicated the pool of eligible entities that could be appointed, such as accounting, management or law firms, or any other professional organisation, or independent practitioners of repute.⁸ The entire cost for the agency’s service was to be borne by the parties.⁹

The 2024 General Regulations retain this broad structure while meaningfully building upon it. Notably, the categories of eligible MAs have been narrowed to accounting or management firms, other professional organisations, chartered accountants, company secretaries or cost accountants.¹⁰ The conflict-of-interest safeguard and the requirement that parties bear costs have been retained.¹¹ The 2024 General Regulations also enumerate the MA’s responsibilities, which include monitoring the implementation of the CCI’s order, including through the submission of written reports, and adhering to the highest standards of confidentiality in relation to information obtained in the course of discharging MA functions.¹² Payment to MAs is subject to them discharging their responsibilities to the satisfaction of the CCI.¹³ Finally, the 2024 General Regulations specify the mechanism for removal of MAs, retaining this discretion with the CCI.¹⁴ Where the CCI revokes the MA’s engagement, it must record written reasons, and the revocation cannot be brought into question, whether in a court of law or otherwise.

Importantly, parties’ failure to comply with the CCI’s order, which would include obligations to facilitate and cooperate with the MA, may constitute non-compliance with Section 42 of the Competition Act, attracting fines of up to INR 10 crore. To date, however, the CCI has not imposed a penalty under Section 42 specifically for uncooperativeness towards an MA.

3. CCI DECISIONAL PRACTICE INVOLVING MAs

Between 2012-2025, the CCI has appointed MAs in approximately 15 merger cases, under the 2011 Combination Regulations.¹⁵ Across these cases, the CCI has followed a broadly standardised framework for MAs, while tailoring obligations on a case-by-case basis depending on the nature of remedies.

1. Appointment of MAs

The appointment of an MA creates a tripartite relationship among the CCI, the parties and the MA. Their inter-se roles and responsibilities are governed by both the CCI’s final order, and a separate monitoring agency agreement among the three parties.

However, the CCI’s regulations are silent on the existence and contents of such agreements. Further, these agreements are not published in the public domain, even in their non-confidential versions. This opacity limits market players’ ability to understand key aspects of the MA framework, including the practical process for the MA’s appointment and termination, and the interplay between the monitoring agency agreement and the CCI’s order.

2. Role and responsibilities of MAs

The MA is responsible for overseeing the implementation of remedies set out in the CCI’s order. Of course, the MA does not exercise its obligations autonomously, and functions under the CCI’s supervision.

In divestiture cases, the MA assesses potential purchasers against the eligibility criteria specified in the CCI’s order, and submits recommendations to the CCI. The MA also oversees the parties’ compliance with their obligations, such as ensuring the preservation of the economic viability, marketability and competitiveness of the divestment business pending completion of the divestiture, as well as protocols for protecting the flow of confidential information between the divestment business and the retained business. Where the order imposes behavioural remedies, the MA’s oversight extends to parties’ ongoing conduct. Examples include (i) a FRAND licensing commitment where the merged entity was obliged to make intellectual property or technology available to third-parties on FRAND terms¹⁶; and (ii) a white-labelling arrangement where the merged entity was obliged to supply to competitors under the competitors’ own branding, thereby preserving competitive alternatives in the market.¹⁷

Occasionally, the CCI has also identified unique responsibilities for the MA. For instance, in Bayer/Monsanto, the MA’s obligations included engaging a technical expert to oversee that the technical conditions of the licensing remedy were satisfied, and that the license was being granted on FRAND terms. In both Bayer/Monsanto and Linde/Praxair, which were mergers with cross-jurisdictional impact, the CCI required the India-level MAs to coordinate their activities, to the extent possible, with the monitoring trustees appointed by the European Commission (EC).

In addition to the MA, the CCI’s orders at times provide for other roles in the implementation of remedies. The CCI may appoint a divestiture agency if the party-led divestiture fails at first instance. Where the divestiture agency and the MA are different persons, the order stipulates that they cooperate in the fulfilment of their respective responsibilities. However, in practice, no case to date has involved the appointment of a divestiture agency. Elsewhere, where the remedy includes hold-separate obligations, requiring parties to isolate specific assets or business units for a certain period, the CCI directs parties to appoint a hold separate manager from within their senior management to assist with such obligations and provide compliance reports to the MA.

3. Supervisory role of CCI

The CCI exercises ongoing supervisory control over the MA’s obligations. As a standard requirement, the MA must submit periodic compliance reports to the CCI, and immediately notify the CCI of any non-compliance with the order by the parties.

The CCI also retains control over key decisions. In divestitures, for example, the final purchaser and the transaction documents effecting the sale must be green lit by the CCI. Similarly, if parties wish to replace the hold separate manager, they must obtain CCI’s approval. Beyond these specific instances, the CCI may generally request information from either the parties or the MA at any time.

4. The unique case of Singapore Airlines/Air India

Among the more recent merger decisions, the CCI’s order in Air India/Singapore Airlines presents a noteworthy departure. Rather than appointing an MA under Regulation 27 of the 2011 Combination Regulations, the CCI directed parties to appoint an independent auditor themselves to oversee implementation of the remedies. The terms and conditions of the auditor’s appointment were subject to the CCI’s approval, and the auditor was required to submit compliance reports to the CCI.

This approach is significant because it entrusted the responsibility of selecting the monitor to the parties, while preserving CCI’s oversight through approval of the engaged auditor, and compliance with standard reporting requirements. This decision suggests a degree of flexibility in the CCI’s approach to monitoring, particularly in cases involving behavioural remedies, where party-led arrangements may be appropriate.

4. INTERNATIONAL PRACTICE OF MA ENGAGEMENT IN ANTITRUST

The competition regulators in the EU and the UK (i.e., the EC and the Competition and Markets Authority (CMA), respectively) are similarly empowered to appoint MAs, coined as ‘monitoring trustees’. While the underlying legal architecture varies, the objective of engaging MAs remains consistent: assisting the regulator in implementing remedies more efficiently.

In both jurisdictions, monitoring trustee engagement is relevant for merger control and commitments procedures alike. This is because settlements are envisaged only for cartel cases which do not result in structural or behavioural remedies. Broadly, the CCI’s governance framework for MAs aligns with that of the EC and the CMA. The monitoring trustee performs a similar range of functions, may be supported by a divestiture trustee, and the costs are borne by parties.

A key difference lies in transparency. Both the EC and the CMA publicly issue detailed guidance governing the engagement of trustees.¹⁸ This guidance reduces informational asymmetries by clearly articulating the roles, powers and limits of trustees, and in turn builds market confidence in enforcement outcomes. Both sets of guidance also clearly distinguish between the functions of monitoring trustees and divestiture trustees. The two regulators enhance transparency in complementary ways: the EC publishes a model Trustee Mandate that serves as the basis for case-specific agreements with parties¹⁹, while the CMA routinely publishes non-confidential versions of trustee agreements.²⁰ Together, these practices increase predictability for parties in designing, assessing and implementing remedies.

5. CONCLUSION

MAs have become an integral component of the CCI’s remedial architecture. Their growing importance reflects the practical reality that the effectiveness of competition remedies depends not merely on their design, but on their implementation over time. What began as a relatively sparse framework under the 2011 Combination Regulations has developed into a more structured regime under the 2024 General Regulations, with clearer articulation of the MA’s responsibilities, reporting obligations and accountability to the CCI.

Within merger control, the CCI’s decisional practice reveals a broadly standardised approach to MA engagement. However, the more recent decision in Air India/Singapore Airlines demonstrates the CCI’s openness to party-led monitoring arrangements.

Looking ahead, the expansion of the MA framework to settlements and commitments represents a significant development, and the role of MAs in ensuring sustained compliance is likely to grow in importance. A comparative look at international counterparts suggests scope for the CCI to enhance predictability and market confidence in the implementation of competition remedies, whether through issuance of guidance on MA engagement, publication of non-confidential versions of monitoring agency agreements, or the provision of summary information on remedy implementation outcomes. Such measures would balance market interests with the CCI's role in ensuring fair competition, particularly as settlements and commitments become a more prominent feature of Indian competition enforcement.

Footnotes

^{1 Regulation 27, 2011 Combination Regulations.}

^{2 Bayer/Monsanto, Combination Registration No.C-2017/08/523 (Bayer/Monsanto).}

^{3 Bayer/Monsanto; Bharat Forge/AAM, Combination Registration No.C-2024/10/1197 (Bharat Forge/AAM); AGI Greenpac/HNG, Combination Registration No. C-2022/11/983 (AGI Greenpac/HNG); ZF/WABCO, Combination Registration No. C-2019/11/703 (ZF/WABCO); Linde/Praxair, Combination Registration No. C-2018/01/545 (Linde/Praxair); FMC/DuPont, Combination Registration No. C-2017/06/519 (FMC/DuPont); Dow/DuPont, Combination Registration No. C-2016/05/400 (Dow/DuPont); ChemChina/Syngenta, Combination Registration No. C-2016/08/424 (ChemChina/Syngenta); Lafarge/Holcim, Combination Registration No. C-2014/07/190 (Lafarge/Holcim); and Sun/Ranbaxy, Combination Registration No. C-2014/05/170 (Sun/Ranbaxy).}

^{4   Air India/Singapore Airlines, Combination Registration No.C-2023/04/1022 (Air India/Singapore Airlines).}

^{5  Sections 48A and 48B, Competition Act.}

^{6 Regulation 54, 2024 General Regulations.}

^{7 Regulation 27(1), 2011 Combination Regulations.}

^{8 Regulation 27(2), 2011 Combination Regulations.}

^{9 Regulation 27(5), 2011 Combination Regulations.}

^{10 Regulation 54(3), 2024 General Regulations.}

^{11 Regulations 54(2) and 54(6), 2024 General Regulations.}

^{12  Regulation 54(4), 2024 General Regulations.}

^{13 Regulation 54(6), 2024 General Regulations.}

^{14 Regulation 54(5), 2024 General Regulations.}

^{15  Bharat Forge/AAM; AGI Greenpac/HNG; Air India/Singapore Airlines; ZF/WABCO; Linde/Praxair; FMC/DuPont; Dow/DuPont; ChemChina/Syngenta; Bayer/Monsanto; Lafarge/Holcim; Reliance/Viacom, Combination Registration No. C-2024/05/1155; Sony/Zee, Combination Registration No. C-2022/04/923; Outotec/Metso, Combination Registration No. C-2020/01/735; Schneider/MacRitchie, Combination Registration No. C-2018/07/586 (Schneider/MacRitchie).}

^{16 Bayer/Monsanto.}

^{17 Schneider/MacRitchie.}

^{18 Available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A52008XC1022%2801%29 ; https://assets.publishing.service.gov.uk/media/6944062e501cdd438f4cf5f8/merger_remedies.pdf ; and https://competition-policy.ec.europa.eu/system/files/2021-03/best_practice_commitments_trustee_en.pdf.}

^{19 Available at: https://competition-policy.ec.europa.eu/system/files/2021-03/trustee_mandate_en.pdf.}

^{20 For instance, see Amazon’s commitments, available at: https://assets.publishing.service.gov.uk/media/6544cbaed36c91000d935d20/Non-confidential_decision_pdfa_4.pdf.}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.