Section 3 – Anti-Competitive Agreements

Section 3(1) clearly states that no enterprise or a person shall enter into an agreement which
causes or is likely to cause an AAEC in India. It is clear that if the agreement does not have
AAEC then it will be out of the purview of Competition Act, 2002.

Agreement – A concerted action on the part of enterprises or persons is a pre-requisite. Even

when parties to such arrangement do not intend to create any legally enforceable mutual
duties and liabilities, it shall be considered as an agreement under this act.

In Technip S.A v S.M.S Holding Pvt Ltd (2005) 5 SCC 465 – court observed that the term
covers an understanding as well as an agreement and an informal as well as a formal
arrangement which leads to the purchase of share or acquire control of a company.

No written proof of the agreement is required as writing is done away with. There should be
consensus , meeting of minds between the parties. It is sufficient if the parties to the
agreement have expressed their joint intention to conduct themselves in the market in a
specific manner.

CCI has also recognized this internationally accepted doctrine of “SINGLE ECONOMIC
ENTITY’. In the Exclusive Motors Pvt Ltd v. Automobili Lamborghini ( CCI order 52/2012)
even when Volkswagen India had a separate legal existence, since it belonged to the same
group as Automobili Lamborghini they were considered a single economic entity and internal
agreements between them was considered outside the scope of section 3.

Rules

Both of these rules have originated in United States. The “rule of reason” is derived from the
Section 1 of the Sherman Act. Whereas the per se rule has been derived from the various case
law in the American courts. In the Indian context we have the famous case of Neeraj
Malhotra v Deustche Post Bank Home Finance Ltd. & Ors from which the Competition
Commission of India defined the provision of the per se rule and the rule of reason

Rule of Reason

The rule of reason requires a lot of inquiry and case to case interpretation of the
provisions of the Act to determine that whether the issue in discussion is violative of the
provisions or not.
In the case of Chicago Board of Trade V. United States 246 U.S. 231 (1918), the rule of
reason was explained by the court as follows: - “The legality of an agreement or regulation
cannot be determined by so simple a test, as whether it restrains competition. The true test of
legality is whether the restraint imposed is such as merely regulates and perhaps thereby
promotes competition or whether it is such as may suppress or even destroy competition. To
determine that question the court must ordinarily consider the facts peculiar to the business to
which the restraint is applied; its condition before and after the restraint was imposed; the
nature of the restraint and its effect, actual or probable. The history of the restraint, the evil
believed to exist, the reason for adopting the particular remedy, the purpose or end sought to
be attained, are all relevant facts.

All these above cases laid down a three point check on the inquiry, whether it is an anti-
competitive in nature or not, which are :- 1. What is the possible harm which may take place
from the activity of the collaborators? 2. The object which they are trying to achieve is a
legitimate one? 3. Does there exists any other means to achieve their objective through the
legitimate means?

Per se illegal

per se rule is merely the application of the provisions mentioned in the Act. if there is prima
facie violation of the provision then this rule will be made applicable. There may be
agreements which are such that by their inherent nature and inevitable effect, they necessarily
impair competition and in such cases it would not be necessary to consider any other fact or
circumstances.

Such would be the position in case of those agreements which produce the prohibited effect
in such an overwhelming proportion that minute inquiry in every instance would be wasteful
of judicial and administrative resources.

AAEC

AAEC is not defined in the Act. The entire concept is subjective that may vary from case to
case. Agreements are considered void only if they result in an AAEC. The BOP is on the
informant to prove that the agreement is in violation of the principle of competition law and
once the informant discharges the burden the opposite parties can escape the liabilities if it
shows that the same has pro-competitive aspects which outweigh any harm to competition.

AAEC has both positive and negative factors

 1. Creation of new barriers

They refer to hindrances without which firms have full freedom to enter and exit the market
allowing competition to prevail and substitutes to remain in the market, which in turn helps in
maintaining fair prices.

Barriers may be structural and strategic

Structural barriers include – government intervention ( like industry regulation, legislative

limitations on new firms, special tax benefiting existing firms etc), or they could be naturally
prevalent like technological patents, strong brand identity, strong customer loyalty etc.

There could be strategic barriers which are artificially created by the firms within market
indulging in anti-competitive behaviour to facilitate their enterprise thrive on such activities
while shutting the market from external competition.

2. Driving existing competitors out of the market

It refers to the capacity of the big firms to drive competitors out of the market owing to their
monopolistic advantages used to maintain favourable prices due to efficiency of large scale
production.

It happens if an enterprise enters into an exclusive supply agreement with distributors that
obliges them to discontinue their trade with other suppliers or if certain suppliers enter into an
agreements to sharply reduce the prices with a view to drive out competitors who are not
party to the agreement.

3. Foreclosure of competition

It refers to the ability of firms to singularly or jointly prevent the entry of other firms in the
market including the potential entrants. If an enterprise enters into a long-term agreement
with a raw material or components supplier, thereby adversely affecting supplies to the
competitors.

4. Accrual of benefits to the consumer

It is one of the positive factor. As a result of anti-competitive agreements the price would
escalate leading to enhancement in profit. The question is whether this is distributed equally
across all key players in the distribution channel (vertical arrangements). If so then anti-
competitive agreements can ultimately have beneficial impacts on consumers.

5. Improvement in production and distribution of goods or provision of services and

promotion of technical, scientific and economic development by means of production
or distribution of goods or provision of services.

To prove it requires huge evidence and data

AAEC is an important section but still remains indicative and does not qualify for conclusive
assessment of anti-competitive agreements under section 3.

The rationale for prohibition of anti-competitive agreements rests on the premise that
competition law is designed to be a comprehensive charter of economic liberty aimed at
preserving free and unfettered competition as the rule of trade and that unrestrained
interaction of competitive forces will yield that best allocation of economic resources of the
country, the lowest prices, the highest quality and greatest material progress.

Types of Anti-Competitive Agreements

Horizontal agreements are those between competitors, i.e., entities at the same level of
distribution. Horizontal agreements are often due to collusion which can be explicit or
implicit. Collusion implies an attempt by competing firms to recognise their interdependence
and attempt to act together rather than compete and can be viewed as a move towards joint
profit maximisation, normally by controlling the supply of commodities.

Such practices can be bi-partite or multi-partite agreement or arrangements. Such agreements

are presumed to have an AAEC and thus per se bad.

Not all horizontal agreements are bad. There can be horizontal agreements for carrying
research and development, JV, agreements to share risk, save costs, increase investments,
pool know-how, enhance product quality and facilitate invention. – Pro-competitive benefits
which may be highly beneficial to the competitive structure of the market leading to synergy
of operations by pooling of resources for the ultimate benefit of consumers.

Contrary to this there can be agreements which have harmful effects on competition.

Vertical agreements are those between parties on different levels of the chain of distribution,
such as between a manufacturer and a distributor, or between a wholesaler and a retailer
Eg
V Rubber supplier ---------------------HA------------------------------Rubber Supplier
E
R Tyre Manufacturer -------------------HA------------------------------Tyre Manufacturer
T
I Tyre Wholesaler --------------------HA -------------------------------Tyre Wholesaler
C
A Retail Shop ---------------------------HA---------------------------------Retail Shop
L

It has been seen that vertical agreements are given a lenient treatment than the horizontal
agreements under the provisions of the Competition law. The reason for such differential
treatment is that the horizontal agreements are more likely to reduce competition than the
vertical agreements. Horizontal agreements like price fixing and market sharing are
agreements which by their nature are almost always considered detrimental to the
competition. Generally, horizontal agreements are synonymously referred to as cartels in
competition law terminology across the world.

Types of Horizontal Agreements

Collusion in form of horizontal agreements can take various forms.

1. Price Fixing

Agreements through which the companies mutually set the prices that they want to charge in
the market are called price fixing agreements.

Imagine a market where four firms manufacturing cement agree to sell their products at a
fixed price. Although sometimes a slight increase in the price of each product hardly matters
to a consumer; such price fixing will ultimately generate huge profits for the colluders.

Other types of price-fixing agreements include agreements that jointly predetermine the size
of profit margins, the extent of discounts and the level of price increases.

Ther have been judicial pronouncements to the effect that the agreements to eliminate,
minimize or restrict other terms and conditions for sale such as discounts, advertising
allowance, credit terms etc lead to illegal price fixing and thus are per se illegal.
When a particular concerted activity entails an obvious risk of anti-competitive impact with
no apparent potentially redeeming value, the fact that a practice may turn out to be harmless
in a particular set of circumstances will not prevent its being declared unlawful per se.

Price fixing agreements can take various forms including the following:

 Agreement on price increase

 Agreement to adhere to published prices

 Agreement not to sell unless it is on the agreed price terms

 Agreement on a standard pricing formula

 Agreement regarding providing, eliminating or establishing method of providing discounts

 Agreement on credit terms that will be offered to customers

 Agreement to eliminate goods and services offered at low prices from the market, thereby
limiting supply and raising the prices

 Agreement between cartel members not to change or reduce prices without notifying each
other

As is evident from the nature and objectives of the price fixing agreements described above,
such horizontal anticompetitive agreements are aimed at furthering the goal of members of
the cartel of earning huge profits at the expense of the consumers.

FICCI – Multiplex Association of India v. United Producers/Distributors Forum Case

No. 01/2009

There was a collective decision of the opposite parties (Producers and Distributors of films)
not to release films to the multiplexes with a view to pressurise the multiplexes into accepting
the new terms of revenue-sharing ratio. The purpose of forming UPDF was extracting better
revenue sharing ratios from multiplexes. The DG report also revealed that the opposite parties
were controlling almost 100% of the market for the production and distribution of hindi
motion pictures which are exhibited in India were acting in concert to fix sale prices by fixing
revenue sharing ratio in violation of section 3(3).

They also issued notice to all producers and distributors not to release any new film for the
purpose of exhibition at the multiplexes operated by the members of the informant. They
were also limiting control and output production.
2. Market Sharing

Another common horizontal agreement amongst competitors is market sharing. These are
also called market allocation and market division agreements.

Under such agreements, the competitors agree to divide amongst themselves specific
territories, customers, or products. Such market allocating actions are restrictive in nature
because they leave no room for competition in the market. For example, an agreement
amongst competitors to allot certain customers to sellers and to allocate or divide sale
territories would be anticompetitive.

An allocation of market share involves an agreement that each will have exclusive or
preferential rights in a designated area for sales, production, provision of services.

The agreements may include

1. non-production of goods in connection with each other

2. not selling in each other’s allocated geographic territories or
3. not soliciting or sell to each other’s existing customers.

3.Limiting Control Output Production

There can be a scenario where competitors agree to restrict and control the production
thereby controlling the supply in the market. Output restrictions can take place through
various forms including agreements on production volumes and agreements on sales
volumes. The objective of controlling and limiting supplies is to create scarcity in the market
and subsequently raise prices in the market.

Cement Cartel case – Builders Association of India v. Cement Manufacturers’ Association

Case No. 29/2010.

Case – Uniglobe Mod Travels Private Limited v. Travel Agents Federation of India
(Case No. 03 of 2009).

The issue was whether the concerted refusal (boycott) tends to limit or control production,
supply, markets, technical development, investment or provision of services. CCI held that
travel agents in India sell more than 3/4th of international tickets in India. Thus, the role is
indispensable. A concerted refusal on their part to boycott a part of their trading activity may
cause difficulty to the consumers. Their conduct of boycott was a unilateral effort to restore
their own previous remuneration regime from the airlines, thereby depriving consumer of
their choices.

Under the MRTP Act it was clear that boycott calls given by Trade Associations are per se
Illegal.

Such output restriction agreements lead to dead weight loss in the society. For example, in a
US Lysine Cartel case, five competing Lysine producers met and allocated the annual ‘sales
volume’ quotas among themselves, they acknowledged the provision as being of ‘vital
importance to overall scheme to control the industry.

4. Bid Rigging

Bid rigging takes place when bidders collude and keep the bid amount at a pre-determined
level. Such pre-determination is by way of intentional manipulation by the members of the
bidding group. Bidders could be actual or potential ones but they collude and act in concert.
Bid rigging is the way that conspiring competitors effectively raise prices where purchasers,
often various departments and authorities of the Government acquire goods or services by
soliciting competing bids.

Aluminium Phosphides case – Re: Aluminium Phosphide Tablets Manufacturers (suo-

motu case No 02/2011. – All the firms set identical prices in their bids. CCI had examined
that the three firms had very distinct cost structures and sale prices. Despite this all firms set
identical bid prices.

There can be different forms of bid rigging:

Identical bids – the parties agree to put in identical bids, the assumption being that each will
in the long run receive a fair share in addition they may agree upon the payment of
compensation to those who do not receive a fair share.

 Subcontract bid-rigging: Under this type of bid-rigging the conspirators agree not to
submit bids, or to submit cover bids that are intended not to be successful, on the condition
that some parts of the successful bidder's contract will be subcontracted to them.

 Cover Bids /Complementary bidding: It is also known as cover bidding or courtesy

bidding. It involves a situation where some of the bidders bid an amount which is too high or
contains unacceptable conditions. Thus, in essence, cover bidding might give the impression
of competitive bidding. In reality, suppliers agree to submit symbolic bids that are
unreasonably high to succeed.

 Bid suppression occurs where some of the conspirators agree not to submit a bid so that
another conspirator can successfully win the contract.

Bid rotation occurs where the bidders take turns being the designated successful bidder, for
example, each conspirator is designated to be the successful bidder on certain contracts, with
conspirators designated to win other contracts. This is a form of market allocation, where the
conspirators allocate or apportion markets, products, customers or geographic territories
among themselves, so that each will get a "fair share" of the total business, without having to
truly compete with the others for that business.

CCI has identified some situations of suspicious behaviour

1. A bidder makes a statement that the bidders have discussed prices and reached an
understanding.
2. A bidder makes a statement that the bid is complementary or cover bid.
3. A bidder makes a statement indicating advance knowledge of the offers of the
competitors.
4. A party brings multiple bids to a bid opening and submits his bids after coming to
know as to who else is bidding.
5. A bidder submits his bid and also competitors bid.
6. Bid document contains the same corrections and alterations indicating last minute
changes.

Cartels

There are certain agreements or practices which because of their pernicious effects ( harmful)
on competition and lack of any redeeming virtue ( no value, useless) are conclusively
presumed to be unreasonable and therefore illegal without any elaborate inquiry as to the
precise harm they have caused.
The severity of the conduct is evidenced by the fact that the cartels have been subjected to the
highest penalty under the Act.

As observed by the SC in U.O.I v. Hindustan Development Corporation (1994) – a cartel

is an association of producers who by agreement among themselves attempt to control
production, sale and prices of the product to obtain monopoly.

Cartel is defined u/s 2(c ) of the Act.

By way of illegal behaviour, the actors within a cartel involve in a secret conspiracy and
tend to make profits at the expense of their customers.

Cartels are contrary to efficient competitive market structure because they deny the right
to choose of the consumers, distort innovation, product development etc.

They are agreements (written, oral or tacit) amongst competitors to stop competing with each
other by controlling production, distribution, sale price of trade of goods or provision of
services for the purpose of eliminating others.

Cartels may be at different levels, international cartel, domestic cartel, import and export
cartel.

The conditions that are conducive to cartels include:

1. Homogenous products
2. High concentration and few competitors
3. High entry and exit barriers
4. Low technological advancement
5. Similar production cost
6. Low demand elasticity
7. Large number of small buyers making frequent purchases
8. Strong ability of competing firms to exchange information
9. Involvement of trade associations
10. Weak enforcement, less fear of detection of punishment

Impact of Trade Associations in a cartel case

It provides a platform for industry players to promote the interests of its members.

Mere membership and participation in a trade association does not by itself amount to
contravention of the provisions of the Act, member enterprises would face the risk of
investigations for contravention of the Act on a/c of the conduct of the trade association.

An association or a union is formed for the primary purpose of collective bargaining. The
term trade association has been defined in the Black’s Law Dictionary as an association of
business organizations having similar concerns and engaged in similar fields, formed for
mutual protection, the interchange of ideas and statistics and the establishment and
maintenance of industry standards.

Though it is not explicitly defined in the Act, it is discussed through concepts such as
‘person’3 which includes an association of persons and ‘anti-competitive agreements,’4
which includes agreements entered into by such associations which could cause an
appreciable adverse effect on competition (“AAEC”) within India.

Medical associations, film associations, sports associations and transport associations are
some kinds of trade associations. For example, the All India Organisation of Chemists and
Druggists, which is a trade body that manages the supply of drugs in the market.

Trade associations remain by their very nature exposed to antitrust risks by exchanging
commercially sensitive information amongst themselves

Trade associations face a difficult challenge of balancing their legitimate goals of addressing
industry issues on the one hand and ensuring there is no anti-competitive information
exchange between its members on the other.

1. Efficacy of sharing of information – rule of reason or per se illegal

The exchange of information between competitors and creation of a transparent market may
in some instances be beneficial to the competitive structure of the market.

T.A collect industry data on prices, output, capacity and investment and circulate information
to the members. This detailed market data may make it easier for the undertakings to plan
their own individual business strategies. This exchange of information between competitors is
not per se illegal.
The practice of mere sharing of information without reaching any agreement or any concerted
action amongst the competitors on increasing prices or limiting production is not per se
illegal.

Even though information exchange has not been expressly prohibited by the Act, the
exchange of any information which is individualised, strategic, current and reduces
uncertainty in relation to future conduct of competitors would be considered to be cartels.

HUB & SPOKE METHOD of sharing information

Indirect exchange of information can take place through Hub and Spoke cartels which can
occur in various forms. It refers to an arrangement whereby there is no direct horizontal
information exchange between competitors but it is undertaken by a common contractual
partner like common distributor, supplier, customer etc.

a. A retailer A discloses the distributor B its future pricing intentions with the intent that
the distributor B will pass that information to other retailers and thereby influence
market conditions at the retailer level
b. B does in fact pass that information to other retailers and other retailers are aware of
the intention that retailer A had, while passing the information on future pricing
strategy to the distributor B and
c. Other retailers are using the said information in determining its own future pricing.

Trade associations becoming cartels

1. Firstly, a cartel can be created only if its members are assured that they will be able to
raise prices above the normal level without being pushed out of business by the non-
participant firms
2. the cost of formulating and administering a cartel has to be necessarily lower than its
expected gains, which is true for trade associations where the association also bears
the costs of organisation and monitoring.
3. Thirdly, a well-functioning cartel would require lobbying and strategizing by the
cartel leader to induce other firms to join

BURDEN OF PROOF for the existence of cartel.

Direct evidence – existence is seldom proved. (agreement, statement of the cartel member,
MOU, records of telephonic conversation)

Circumstantial evidence – by setting chain of events leading to a common understanding or

plan.

A concerted practice is a form of coordination between the parties where they have not
reached the stage of actual agreement but knowingly coordinate their actions and cooperate
with one another instead of competing with each other.

INDIAN STANDARD OF BOP

Standard of rule of preponderance and probability

Standard of proof beyond reasonable doubt

Price Parallelism

Is mirroring effect where traders independently pursue their unilateral non-cooperative

actions in view of what other rivals are doing. Therefore, there is neither an explicit
agreement nor a tacit understanding among the traders.

Parallel pricing happens if firms change their prices simultaneously in the same direction and
proportionately.

It is tricky situation as we need to understand that whether there is strategic coordination or

collusion. So we rely on PLUS FACTORS in international jurisprudence. In India we rely on
structural factors.

In India it is very difficult to distinguish concerted practise from parallel behavior.

Highly concentrated market – the interdependence between firms can lead to collusion.

Demand and supply conditions – If the demand of the product is seasonal and predictable
producers may take strategic decisions and tend to cartelise

Homogenous product – manufacturers producing close substitutes may facilitate cartelization.

Entry barriers – if multiple players can enter- exist the market then cartels can be curbed

Active trade associations

Vertical Agreements

1. They operate at different levels of the production chain. ( the production chain
includes the stage from gathering raw materials to processing and creating the final
product, its distribution and its sale. At each step in the production chain, value is
added to the product so it can be sold at a greater amount when it becomes the final
product.
2. They can improve the economic efficiency within a chain of production or
distribution by facilitating better coordination between the participating undertakings
and that it can lead to reduction in the transaction costs of the parties and to an
optimization of their sales and investment limits.
3. Following the production chain steps the product enters the distribution chain. Adding
value to the products by transporting them to wherever the consumer requires them to
be.
4. Distribution chain can be classified into two categories
a. Direct Channel
Manufacturer --------- Customer

b. Indirect channel
Manufacturer ------ Retailer ------Customer (One level Channel)
Manufacturer -------Wholesaler -------Retailer ------ Customer (Two level
Channel).
Manufacturer ------ Agent ------Wholesaler------Retailer ------Customer ( Three
level Channel).

the Commission has the power to pass inter-alia any or all of the following orders (section
27): a direct the parties to a cartel agreement to discontinue and not to re-enter such
agreement; a direct the enterprises concerned to modify the agreement. a direct the
enterprises concerned to abide by such other orders as the Commission may pass and comply
with the directions, including payment of costs, if any; and a pass such other order or issue
such directions as it may deem fit.

Interface between Competition and IPR

The legal regimes of competition law and Intellectual Property Rights (IPR) are often termed
as ‘friends in disagreement’. Although they envisage different ideals in theory, in practice,
they work in tandem to ensure static and dynamic efficiency in the market, and contribute
towards consumer welfare.

competition law seeks to draw a line between permissible business strategies and abuse of
IPRs.

IPR gives exclusive rights and a monopoly, with which competition policy disagrees. On the
one hand, it is important to boost the spirits of the inventor, and on the other hand,
competitiveness in the market should also be controlled. However, they are also
complementary in certain areas. IPR provides a chance for technological innovation, which in
turn creates more products and results in the dynamic growth of the product, which is
considered one of the aims of the competition policy.

Competition law deals with those laws that are involved in regulating market mechanisms. It
promotes competition in the market and prevents unauthorised monopolies. It safeguards
trade and business policies by preventing the anti-competitive conduct of various companies.
It monitors the policies and regulations of the market system to ensure that no unfair
marketing strategy is used and that the producers are in a position to carry out the businesses
in a fair way. Consumers are also capable of choosing products and services freely.

Internationally, the interface between IPR and competition is governed under the Trade
related aspects of intellectual property rights (TRIPS) Agreement.

The World Intellectual Property Organisation or WIPO is a UN specialized agency created in

1967 to promote intellectual property (IP) protection and encourage creative activity all over
the world. WIPO is basically a global forum for IP policy, services, information and
cooperation. WIPO is a global body for the promotion and protection of Intellectual Property
Rights (IPR).
Importance of IPR and Competition Law

Some of the important purposes served by the IPR are as follows-

 It protects the intellectual creativity of a person by safeguarding the creation of the

creator from being infringed by other people.

 It acts as an incentive to motivate the creators, which in turn promotes invention.

 It gives exclusive rights to the holders of the creations, encouraging them to innovate
new things.

 It also encourages competitive intent by securing the investment of the intellectual

property holders by enforcing their legal rights.

Some of the important purposes served by the Competition Law are as follows-

 It encourages anti-competitive policies and prohibits price fixing, bid rigging,

predatory pricing, and dumping.

 It encourages competition among innovative producers.

 It prevents unhealthy competition, abusive market practices, discourages monopoly,

etc.

 It promotes economic growth in society and looks after the welfare of consumers.

 It encourages the highest quality of goods and services at the lowest price for
consumers.

 It promotes wider choices for consumers as well.

SL Basis of Intellectual Property Rights

Competition Law
no. difference (IPR)

IPR ensures that the inventors or It encourages competition

creators of work get awards for among the people in the market
1. Nature their innovations, which in a way economy, which will in turn
encourages monopolies in the result in economic growth for
market. the country.

2. Scope It tries to eliminate competition by Competition law, on the other

 hand, tries to eliminate the
securing the rights of the IP
monopoly system in the market
holders.
by encouraging competition.

Competition Law sees that

The IPR laws safeguard the rights
Protection/ unreasonable restrictions are
3. of the inventors from competitive
Restrictions not imposed upon market
exploitation of their products.
competition.

Competition Law, on the other

IPR is concerned with the benefits hand, implements policies for
to consumers. It encourages the anti-competitiveness, unfair
4. Application innovators to make new and trade practices, fair pricing,
improved goods and services for prohibits tying agreements,
the consumers. closing market gaps, and many
more.

The responsibility of
The responsibility of IPR is to Competition Law is to see the
5. Responsibility grant and look into the manner in which these rights
functioning of property rights. are exercised in the market and
their effect.

Leniency

Leniency programme is a type of whistle-blower protection, i.e. an official system of offering

lenient treatment to a cartel member who reports to the Commission about the cartel. a
Competition authorities have framed various leniency programmes to encourage and
incentivize various actors connected with the commission of such competition infringements
to come forward and disclose such anticompetitive agreements and assist the competition
authorities in lieu of immunity or lenient treatment. a Leniency programme is a protection to
those who come forward and submit information honestly, who would otherwise have to face
stringent action by the Commission if existence of a cartel is detected by the Commission on
its own.