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COMPETITION LAW: GENERAL OVERVIEW (Fair Competition For Greater Good) Ranchi 28. 01. 2018 PRESENTED BY MANOJ PANDEY ADVISER (LAW) COMPETITION COMMISSION OF INDIA
AGENDA FOR DISCUSSION 1. Brief Background of Competition Law in India 2. Broad Framework 3. Provisions regarding Anti- Competitive Agreements 4. Provisions regarding Abuse of Dominance 5. Provisions regarding Combinations 6. Provisions regarding Inquiry & Investigation 7. Penal Provisions 8. Appellate Forum 9. Competition Regulations 10. Competition Law Issues decided by Supreme Court 11. Leniency provisions
1. BRIEF BACKGROUND OF COMPETITION LAW IN INDIA • Competition Act was passed by Parliament in 2002 to replace Monopolies and Restrictive Trade Practices (MRTP Act), 1969. • Competition Act passed in the year 2002 received the assent of the President of India in January 2003. • It was subsequently amended by the Competition (Amendment) Act, 2007. • Substantive provisions of the Act were notified w. e. f 20. 05. 2009 (relating to prohibition of anti-competitive agreements and abuse of dominance) and w. e. f 01. 06. 2011 (relating to regulation of combinations).
BRIEF BACKGROUND - CONTD. • Act provides for o Commission having one Chairperson and six other members. o Secretary and Professional Staff to assist the Commission o Director General (DG) to conduct investigation having powers of search and seizure • Preamble to the Competition Act, 2002 “An Act to provide, keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto. ”
2. BROAD LEGAL FRAMEWORK 2. 1 Competition Act, 2002 q Prohibits Anti-Competitive Agreements (Sec 3) q Prohibits Abuse of Dominant Position (Sec 4) q Regulates (S. 5&6 ) Combinations - Acquisition, Control and Mergers q Mandates Competition Advocacy (Sec 49) § Provides for extra territorial jurisdiction for Acts taking place outside India but having an effect on competition in India (Sec. 32) § Contains Lesser Penalty provisions in case member of a cartel seeks Leniency or Lesser Penalty (section 46) § Considers aspects of static, production and dynamic efficiency in the market in its enforcement provisions.
3. PROVISIONS REGARDING ANTI - COMPETITIVE AGREEMENTS 3. 1 Provisions of Section 3 • No enterprise or person shall enter into any agreement w. r. t. production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India - S. 3(1). • Anti-Competitive Agreements: q. Horizontal Agreements - Section 3(3) q. Vertical Agreements - Section 3(4)
ANTI - COMPETITIVE AGREEMENTS - CONTD. • Agreement: Defined in Section 2(b) of Act and includes any : q. Arrangement or, q. Understanding or, q. Action in concert Whether or not qis formal or in writing; or, q is intended to be legally enforceable
ANTI - COMPETITIVE AGREEMENTS - CONTD. • Enterprise: Defined under Section 2(h) of the Act Includes: q Person or Department of Government q Engaged in production, storage, supply, distribution, acquisition, or control of articles or goods or provision of services, of any kind or in investment or n the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, etc. Excludes: Sovereign Functions of Government including Central Government department's activities dealing with atomic energy, currency, defence and space.
ANTI - COMPETITIVE AGREEMENTS - CONTD. • Cases wherein COMPAT held that a department of government falls within the definition of the term ‘enterprise’ under sec 2(h) of the Act. q Wing Cdr. (Retd. ) Dr. Biswanath Prasad Singh Vs. Director General of Health Services (DGHS) q Rajat Verma v. Haryana Public Works (B&R) Department q Prem Prakash v. The Principal Secretary and Others
ANTI - COMPETITIVE AGREEMENTS- CONTD. 3. 2 Horizontal Agreements: S. 3(3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprises or practice carried on, or decisions taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, shall be presumed to have appreciable adverse effect on competition and therefore void if it : • directly or indirectly determines purchase or sales prices. • limits or controls production, supply, markets, technical development, investment or provision of services.
ANTI - COMPETITIVE AGREEMENTS- CONTD. • shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way. • directly or indirectly results in bid rigging or collusive bidding. However section 3(3) does not apply to any agreement entered into by the Joint Ventures leading to increase in the efficiency. Burden of proof is on the person or enterprise. Presumption of AAEC: ‘Shall presume’ rule applies to Horizontal Agreements.
SOME CASES OF HORIZONTAL ANTI-COMPETITIVE AGREEMENTS WHERE PENALTIES HAVE BEEN IMPOSED • Some cases wherein findings of CCI have been confirmed by Appellate Tribunal ØLPG CYLINDER CASE ØALP TABLET SUPPLY CASE ØINSURANCE CASE ØTRAVEL AGENTS CASE ØFICCI MULTIPLEX CASE • Some cases of Anti-Competitive Agreements wherein Penalties have been imposed recently by CCI Ø CEMENT CASES Ø CHEMIST AND DRUGGIST ASSOCIATION CASES Ø CARTELISATION IN SUPPLY OF BRUSHLESS DC FANS TO INDIAN RAILWAYS Ø FILM ASSOCIATION CASES Ø SUPPLY OF SPARES TO INDIAN RAILWAYS
ANTI - COMPETITIVE AGREEMENTS- CONTD. 3. 3 Vertical Agreements - S. 3(4) • Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including q q q Tie-in agreement Exclusive supply agreement Exclusive distribution agreement Refusal to deal Resale price maintenance shall be anti-competitive if such agreement causes or is likely to cause an appreciable adverse effect on competition in India. [Rule of Reason Approach ]
ANTI - COMPETITIVE AGREEMENTS- CONTD. 3. 4 According to S. 3(5) of the Act, S. 3 shall not restrict; i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under: q q q q The Copyright Act, 1957 The Patents Act, 1970 The Trade and Merchandise Marks Act, 1958 The Trade Marks Act, 1999 The Geographical Indications of Goods Act, 1999 The Designs Act, 2000 The Semi-conductor Integrated Circuits Layout-Design Act, 2000 ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.
3. PROVISIONS REGARDING ABUSE OF DOMINANCE 4. 1 Dominance • As per S. 4(1) of the Act, no enterprise or group shall abuse its dominant position. • The Act defines dominant position as a position of strength , enjoyed by an enterprise, in the relevant market in India , which enables it to; q Operate independently of the competitive forces prevailing in the relevant market or q Affect its competitors or consumers or the relevant market in its favour.
ABUSE OF DOMINANCE- CONTD. Relevant Market Section 2(r) and section 19(5) Means the determination of the market with reference to either/or both relevant geographic market and relevant product market Relevant Geographic Market Section 2(s) and section 19(6) Means a market comprising the area in which conditions of competition for supply or demand of goods/services are distinctly homogenous and can be distinguished from conditions prevailing in other areas Relevant Product Market Section 2(t) and section 19(7) Means a market comprising all products/services which are interchangeable or substitutable by the consumer by reason of their characteristics, intended use and prices.
ABUSE OF DOMINANCE- CONTD. 4. 2 Abuse of Dominance: • Dominance per se is not bad. • However, its abuse has been considered bad. Abuse of Dominant Position - Section 4 (2) • There shall be an abuse of dominant position if an enterprise or a group indulges in any of the following : q Imposing, directly or indirectly, unfair or discriminatory condition in purchase or sale of goods or services or price in purchase or sale (including predator price ) of goods or service; or, q Limiting or restricting production of goods or services or market or technical or scientific development relating to the goods or services to the prejudice of customers; or,
ABUSE OF DOMINANCE- CONTD. q Indulges in practice or practices resulting in denial of market access in any manner; or, q makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or, q uses its dominant position in one relevant market to enter into, or protect, other relevant market.
SOME CASES OF ABUSE OF DOMINANCE • Wherein Findings Confirmed by Appellate Tribunal Ø DLF Case Ø Coal India Case Ø Car Manufacturers case
5. REGULATION OF COMBINATION q Section 5 & 6 deals with Regulation of Combinations. q CCI regulates combinations if turnover and asset thresholds are met. q All combinations meeting the threshold limits prescribed in the Act need prior approval of CCI. .
S. 5 - THRESHOLDS Criteria Only within India Assets No Group >INR 2, 000 crore >INR 6, 000 crore Group >INR 8, 000 crore >INR 24, 000 crore Total Within and outside India Turnover No Group >US $ 1 billion with at least INR 1000 crore in India >US $ 4 billion with at least INR 1000 crore in India Total Minimum Indian Component 1000 crore Total >US $ 3 billion with at least INR 3, 000 crore (in India >US$ 12 billion with at least INR 3, 000 crore in India Total Minimum Indian Component 3000 crore
REGULATION OF COMBINATIONCONTD. DE-MINIMUS EXEMPTION Acquisitions where enterprises whose control, shares, voting rights or assets are being acquired have assets of not more that Rs. 350 crore in India or turnover of not more than Rs. 1000 crore in India, are exempt from S. 5 of the Act for a period of 5 years. THRESHOLDS FOR AVAILING OF DE MINIMIS EXEMPTION FOR ACQUISITIONS Assets Target Enterprise In India Turnover ≤ INR 350 crore or ≤ INR 1, 000 crore
REGULATION OF COMBINATIONCONTD. NOTIFICATION DATED 27. 03. 2017 REGARDING CALCULATION OF TURNOVER AND ASSETS OF THE TARGET COMPANY q Prior to the 2017 Notification, unless specifically exempted, CCI was required to be notified for all combinations and prior approval was required before effectuating the combination. q The 2017 Notification further clarifies that the asset value and turnover of only that segment/portion of enterprise, division or business which is being transferred shall be considered for calculating the thresholds under Section 5 of the Act, instead of taking the transferor’s total assets and turnover into consideration. q Furthermore, the 2017 Notification provides the method of computation of asset value and turnover for the purposes of availing this exemption.
REGULATION OF COMBINATIONCONTD. SCHEDULE 1 of (Procedure in regard to the transaction of Business relating to Combinations) Regulations, 2011 q As the categories of combinations mentioned in Schedule I read with Regulation 4 are ordinarily not likely to cause an appreciable adverse effect on competition in India, notice need not normally be filed.
REGULATION OF COMBINATION - CONTD. 5. 2 Section 6 of the Act deals with Regulation of Combinations. q No person or enterprise shall enter into a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and such a combination shall be void. q Vide notification dated 29. 06. 2017, the parties are no more required to notify the Commission regarding execution of the trigger document within 30 calendar days; however the parties need to notify the Commission about the proposed combination before part consummation or consummation of the said combination.
REGULATION OF COMBINATIONCONTD. 5. 3 Timeline of Combinations: q 30 working days for the Commission to form a prima facie opinion Ø Most of the cases ( more than 95% cases) have been approved within 30 working days – Phase 1. q 210 days from the date of notice to take a final decision on a combination in case of a detailed inquiry – Phase II. q On expiry of the prescribed period of 210 days, if no order is passed, the combination is deemed to be approved.
REGULATION OF COMBINATION- CONTD. 5. 4 Forms and Fees q The parties to the combination shall give notice in Form I or Form II, as the case may be q Fee for filing Form I is 15 Lac q Form II is a detailed form and the fee for filing is 50 Lac
REGULATIONS OF COMBINATIONS - CONTD. 5. 5 Orders in case of Combinations causing or likely to cause AAEC • If after inquiry the Commission is of the opinion that any combination has caused or is likely to cause AAEC then the Commission may pass the following orders under S. 31 of the Act: q Not approve the combination; q Approve with suitable modifications to combination, eliminating such effects • Cases where combinations approved with remedy Ø Sun Pharma-Ranbaxy Case Ø Holcim-Lafarge Case Ø PVR-DT Cinema Case
6. INQUIRY & INVESTIGATION 6. 1 According to S. 19 (3), the Commission shall consider the following factors, while determining whether an agreement has an appreciable adverse effect on the competition q Creation of barriers to new entrants in the market q Driving existing competitors out of the market q Foreclosure of competition by hindering entry into the market q Accrual of benefits to consumers q Improvements in production or distribution of goods or provision of services q Promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services
INQUIRY & INVESTIGATION- CONTD. 6. 2 According to S. 19 (4), the Commission shall consider the following factors, while inquiring whether an enterprise enjoys a dominant position q Market share of the enterprise q Size and resources of the enterprise q Size and importance of the competitors q Economic power and commercial advantages over competitors q Vertical integration of the enterprises q Dependence of consumers on the enterprise
INQUIRY & INVESTIGATION- CONTD. q Monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise. q Entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers. q Countervailing buying power
INQUIRY & INVESTIGATION- CONTD. q Market structure and size of market q Social obligations and social costs q Relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have appreciable adverse effect on competition; q Any other factor which the Commission may consider relevant for the inquiry.
INQUIRY & INVESTIGATION- CONTD. 6. 3 According to S. 20(4), the Commission shall consider the following factors, while inquiring whether a combination would have an appreciable adverse effect on competition: q Actual and potential level of competition through imports in the market q Extent of barriers to entry into the market q Level of combination in the market q Degree of countervailing power in the market q Extent of effective competition likely to sustain in a market
INQUIRY & INVESTIGATION- CONTD. q Likelihood that the combination would result in the parties to the combination being able to significantly and sustainably increase prices or profit margin. q Extent of effective competition likely to sustain in a market q Extent to which substitutes are available or are likely to be available in the market q Market share, in the relevant market, of the persons or enterprise in a combination, individually and as a combination
INQUIRY & INVESTIGATION- CONTD. q Likelihood that the combination would result in the removal of a vigorous and effective competitor in the market q Nature and extent of vertical integration in the market; q Possibility of a failing business; q Nature and extent of innovation; q Relative advantage, by way of the contribution to the economic development, by any combination having or likely to have appreciable adverse effect on competition; q Whether the benefits of the combination outweigh the adverse impact of the combination, if any.
INQUIRY & INVESTIGATION PROCESS FLOW - SEC. 3 AND 4 Case Initiation (Section 19) Information Received Under Section 19(1)(a) from any person, consumer or their association or trade associations Reference Received from Central or State Government Section or Statutory Authority 19(1)(b) ( Prima facie view u/s 26(1) Suo Moto Investigation (on its own) (Section 19(1)
INQUIRY & INVESTIGATION- CONTD. Prima facie view u/s 26(1) Prima Facie Case Made Out (no appeal lies ) Prima Facie Not Made out Sent to DG for Investigation Case Closed – s. 26(2) (Appeal lies ) DG’S Inv. Report In case of contravention, final order u/s 27 of the Act In case of no contravention, case is closed.
7. PENAL PROVISIONS 7. 1 Orders in case of Dominance Anti- Competitive conduct and Abuse of • If after inquiry the Commission finds that there is contravention of S. 3 or S. 4 of the Act then the Commission may pass the following orders under S. 27 and 28 of the Act: Orders under Section 27 q Direct to discontinue and not to re-enter such agreements or discontinue such abuse of dominant position, as the case may be q Modification of anti-competitive agreements q Impose penalty upto 10% of average turnover for last three preceding financial years q In case of cartels, impose penalty upto 10% of turnover or three times of profit for each year of continuance of such agreement, whichever is higher q Any other order it may deem fit
PENAL PROVISIONS - CONTD. Orders under Section 28 q Division of Enterprise 7. 2 Chapter VI of the Act provides for; q Penalties for non-compliance with orders, directions of the Competition Commission of India q Penalties for non-reporting of combination q Penalties for incorrect information q Provisions for compensation by the Competition Appellate Tribunal (COMPAT) in case of contravention of orders of the Commission.
PENAL PROVISIONS - CONTD. PENALTY UNDER CHAPTER VI Section 42 Contravention of orders of Commission 42(2) : Penalty for non-compliance with orders, directions passed by the Commission under sections 27, 28, 31, 32, 33, 42 A and 43 A of the Act: Fine upto Rs. 1 lakh per day, subject to a maximum of Rs. 10 crore. 42(3) : If any person does not comply with the orders or directions issued, or fails to pay the fine imposed under subsection (2), he shall, without prejudice to any proceeding under section 39, be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to rupees twenty-five crore, or with both, as the Chief Metropolitan Magistrate, Delhi may deem fit: Provided that the Chief Metropolitan Magistrate, Delhi shall not take cognizance of any offence under this section save on a complaint filed by the Commission or any of its officers authorized by it.
PENAL PROVISIONS - CONTD. PENALTY UNDER CHAPTER VI Section 43 CCI can impose fine which may extend to Rs. 1 lakh for Penalty for failure to each day during which such failure continues subject to a comply with directions maximum of Rs. 1 crore of Commission and DG Section 43 A CCI can impose penalty which may extend to 1% of the Penalties for non- total turnover or the assets, whichever is higher, of such a reporting of combination Section 44 Penalties for filing of incorrect information by any party to a combination CCI can impose penalty which shall not be less than Rs. 50 lakhs but which may extend to Rs. 1 Crore.
PENAL PROVISIONS - CONTD. PENALTY UNDER CHAPTER VI Contd. Section 45 Penalty for willingly furnishing incorrect information CCI can impose fine which may extend to Rs. 1 Crore Section 46 Power to impose lesser penalty Discussed in detail under Leniency Provisions Section 48 Contravention by companies CCI deems every person who was in charge of and was responsible to the company for the alleged anticompetitive conduct to be guilty of the contravention and is liable to be proceeded against.
8. APPELLATE FORUM SUPREME COURT EARLIER COMPAT / NOW NCLAT COMPETITION COMMISSION OF INDIA
9. COMPETITION REGULATIONS S. N. REGULATION DESCRIPTION DATE 1. CCI (Procedure in regard to the transaction of Business relating to Combinations) Regulations, 2011 11/05/2011 2. CCI (Manner of Recovery of Monetary Penalty) Regulations, 2011 08/02/2011 3. CCI (Determination of Cost of Production) Regulations, 2009 20/08/2009 4. CCI (Lesser Penalty) Regulations, 2009 13/08/2009 5. CCI (Meeting for transaction of Business) Regulations, 2009 22/05/2009 6. CCI (General) Regulations, 2009 22/05/2009 7. CCI (Procedure of Engagement of Experts and Professionals) Regulations, 2009 15/05/2009
10. ISSUES DECIDED BY SUPREME COURT CCI v. STEEL AUTHORITY OF INDIA (2010) SUPREME COURT DECISION: q Order passed by the Commission u/s 26(1) of the Act is an administrative direction to one of its own wings departmentally (i. e. DG). q The Commission is not bound to issue notice or grant hearing, at the stage of formation of prima facie opinion u/s 26(1) of the Act. q Order passed u/s 26(1) does not effectively determine any right or obligation of the parties to the lis and therefore the same is not appealable.
ISSUES DECIDED BY SUPREME COURT CONTD. CCI v. STEEL AUTHORITY OF INDIA (2010) contd. q Closure of the case causes determination of rights and affects the informant; resultantly, the said party has a right to appeal against closure of case under Section 26(2) of the Act. q No appeal will lie from any decision, order or direction of the Commission which is not made specifically appealable under Section 53 A(1)(a) of the Act. q SC issued directions to ensure proper compliance in regard to procedural requirements to ensure that the procedural intricacies do not hamper in achieving the object of the Act.
ISSUES DECIDED BY SUPREME COURT CONTD. Co-ordination Committee of Artists & Technicians of West Bengal Film and Television and ors. (2017) SUPREME COURT DECISION: q Enterprise: Any entity, regardless of its form, constitutes an 'enterprise' within the meaning of S. 3 of the Act, when it engages in economic activity. An economic activity includes any activity, whether or not profit making, that involves economic trade. q Association Of Enterprises: The Coordination Committee is an association of enterprises as its constituent members are engaged in production, distribution and exhibition of films. The Coordination Committee cannot be treated narrowly as Trade Unions, as is backing the cause of those which are ‘enterprise’. q Agreement: The activities of the Coordination Committee (Association of enterprises), can be treated as an 'agreement' for the purpose of Section 3 of the Act.
ISSUES DECIDED BY SUPREME COURT CONTD. Co-ordination Committee of Artists & Technicians of West Bengal Film and Television and ors. (2017) contd. Appreciable adverse effect q If any agreement falls within the category of S. 3(3) of the Act, it is per se treated as adversely effecting the competition to an appreciable extent and comes within the mischief u/S 3(1) of the Act. There is no further need to have actual proof as to whether it has caused AAEC on competition. q In order to determine whether any agreement has an appreciable adverse effect on the competition under S. 3, factors given u/s 19(3) are to be taken into consideration.
ISSUES DECIDED BY SUPREME COURT CONTD. Co-ordination Committee of Artists & Technicians of West Bengal Film and Television and ors. (2017) contd. RELEVANT MARKET: q The word 'market' used in S. 19(3) has reference to 'relevant market'. q The appreciable adverse effect on the Competition has to be seen in the context of ‘Relevant Market’. q In order to examine an anti competitive conduct, Relevant Market is the first aspect to be determined.
ISSUES DECIDED BY SUPREME COURT CONTD. CCI vs. Excel Crop Care Ltd (2017) TOTAL TURNOVER V. RELEVANT TURNOVER q The criteria of ‘relevant turnover’ is to be adopted for the purpose of imposition of penalty under S. 27(b) of the Act. q Definition of the term “relevant turnover” is entity’s turnover pertaining to products and services that have been affected by such. RETROSPECTIVITY q SC held that in cases where tender process is initiated prior to the date when S. 3 became operational but continued much beyond May 20, 2009, since the role of parties as tenderers did not come to an end only by submitting the tenders, the inquiry into the tender of March 2009 by the CCI is covered by S. 3 of the Act.
ISSUES DECIDED BY SUPREME COURT CONTD. CCI vs. Excel Crop Care Ltd (2017) Contd. JURISDICTION OF DG/ CCI WHILE INVESTIGATING AND ENQUIRING THE MATTERS: q The SC held that the while carrying out DG investigation, if other facts reveals that even other parties have entered into an agreement that is prohibited by S. 3, the DG would be well within his powers to include those as well in his report.
11. LENIENCY PROGRAMME 11. 1 What is Leniency Programme Ø It is an effective tool to detect, investigate and combat cartel cases. Ø It is a type of whistle-blower protection Ø It 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. 11. 2 Leniency Provisions Ø Section 46: If the Commission is satisfied that any producer, seller, distributor, trader or service provider included in any cartel has made a full and true disclosure in respect of the alleged violations and such disclosure is vital, impose a lesser penalty as it may deem fit.
LENIENCY PROGRAMME To effectuate the leniency programme, the Commission has made Competition Commission of India (Lesser Penalty) Regulations, 2009. Ø These Regulations provide the framework in which the Commission can give lower punishment than statutorily provided in the case of cartel membership. ØHowever, no protection under lesser penalty regulations shall be granted in the following cases: üIf the DG Report has been received before making of such disclosure. üIf the person making the disclosure does not continue to cooperate till the completion of the proceedings. üIf the Commission, during the course of proceedings finds that the party: (a) had not complied with the condition on which the lesser penalty was imposed; or (b) had given false evidence; or (c) the disclosure made is not vital,