Guidelines under Section 64B

Section 64B, inserted by the Competition (Amendment) Act, 2023, empowers the Commission to issue guidelines for the purpose of providing guidance in respect of the provisions of the Act, and to amend or revoke them. It fills a gap that had been apparent for years: the Commission decided cases without publishing the method it used, so enterprises could not predict their exposure and appellate forums had little against which to test an order. The first and most important instrument issued under the section is the Monetary Penalty Guidelines of March 2024.

1. What the Section Does

It empowers the issue of guidelines in respect of the provisions of the Act, so that those subject to the Act know how the Commission will approach a question.
It permits amendment and revocation, which is necessary because guidance must follow practice as it develops and would otherwise ossify.
It does not create substantive obligations. Guidelines explain how a power will be exercised; they cannot enlarge or restrict the statute, and nothing in them can add to the prohibitions in Sections 3 and 4 or to the ceiling in Section 27.

2. Guidelines, Regulations and Rules

Three kinds of instrument sit below the Act, and confusing them is the commonest error when writing about this part of the subject.

	Rules	Regulations	Guidelines
Made by	The Central Government under Section 63	The Commission under Section 64	The Commission under Section 64B
Character	Delegated legislation	Delegated legislation	Guidance, not legislation
Binding	Yes, on everyone	Yes, on everyone	On the Commission in the sense that a departure must be explained
Consultation	In practice, drafts are published	Required by Section 64A before making	Not required by Section 64A, though drafts have been published
Laid before Parliament	Yes	Yes	No
Examples	The Criteria of Combination Rules, 2024 and the Minimum Value Rules, 2024	The General, Combinations, Settlement, Commitment, Lesser Penalty, Turnover, Recovery and Cost of Production Regulations	The Monetary Penalty Guidelines, 2024

3. The Monetary Penalty Guidelines as the Model

The guidelines issued on 6 March 2024 show what the section is for. They do not alter the statutory ceiling of ten per cent of global turnover or income, which only Parliament could do. What they supply is the sequence by which a figure within that ceiling is arrived at: a starting point derived from the turnover relating to the affected products or services, a percentage reflecting the nature and gravity of the contravention, a multiplier for duration, adjustments for aggravating and mitigating circumstances, and a proportionality check. The effect is that an enterprise can estimate its exposure, that the Commission's orders can be examined against a stated method, and that the proportionality required by Excel Crop Care survives the redefinition of turnover in 2023.

⚠ How a court treats guidelines

Guidelines are not law, so they cannot be enforced as such and a penalty is not bad merely because the arithmetic departs from them. But a regulator that publishes a method and then ignores it without explanation acts arbitrarily, and the order is vulnerable on that ground. The correct proposition is therefore that guidelines bind the Commission to consistency rather than to a figure: it may depart from them, and must say why. A party arguing on quantum should put its case as a failure to apply the stated method, not as a breach of a rule.

4. What Else Section 64B Could Support

The section is general, and the areas in which guidance would be most useful are those where the statute states a test and leaves the method to the Commission: the definition of the relevant market and the treatment of two-sided and zero-price markets; the assessment of dominance in digital markets, where the Section 19(4) factors were drafted for conventional industries; the design of remedies in settlement and commitment proceedings; and the treatment of efficiency claims under Section 19(3). Competition authorities elsewhere publish guidance on each of these, and the section now permits the Commission to do the same.

5. Related Topics and Provisions

Topic or provision	Connection
The Monetary Penalty Guidelines, 2024	The principal instrument issued under this section
Public Consultation before Making Regulations: Section 64A	The procedure for regulations, and its inapplicability to guidelines
Penalties under the Competition Act	Where the guidance operates
Sections 63, 64, 64A and 64B, Competition Act, 2002	Rules, regulations, consultation and guidelines