008

3RD TNNLU - CCI

NATIONAL MOOT COURT COMPETITION, 2020

Before

THE HONOURABLE COMPETITION COMMISSION OF IMARTI

UNDER SECTION 26 (8) OF THE IMARTI COMPETITION ACT,2002.

COMPETITION CASE NO. 76/2018

ACME PRIVATE LIMITED………….………...…………………………..………INFORMANT

Versus
UMBRELLA PRIVATE LIMITED……………………………………….…OPPOSITE PARTY-I
EPOC GAMES PRIVATE LIMITED………..……………………………….OPPOSITE PARTY-
II

Along with

COMPETITION CASE NO. 1/2019

INDEPENDENT SERVICE OPERATIONS…….....……………………....…………INFORMANT

Versus
UMBRELLA PRIVATE LIMITED & OTHERS ………..……...………………..OPPOSITE
PARTY
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MEMORANDUM FOR INFORMANTS

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-TABLE OF CONTENTS-

-TABLE OF CONTENTS-..............................................................................................................I

-TABLE OF ABBREVIATIONS-.................................................................................................III

-INDEX OF AUTHORITIES-........................................................................................................V

-STATEMENT OF JURISDICTION-............................................................................................IX

-STATEMENT OF FACTS-..........................................................................................................X

-ISSUES RAISED-....................................................................................................................XII

-SUMMARY OF ARGUMENTS-..............................................................................................XIII

-ARGUMENTS ADVANCED-........................................................................................................1

[ISSUE – I] That Umbrella And Epoc Engaged In An Anti-Competitive Vertical

Agreement Under Section 3...................................................................................................1

[I.A] Anti-Competitive Agreements..................................................................................1

[I.A.1] Exclusive Supply Agreement.............................................................................1

[I.A.2] Exclusive Distribution Agreement.....................................................................2

[I.A.3] Refusal To Deal..................................................................................................3

[I.B] The Agreement Between Umbrella And Epoc Causes Appreciable Adverse Effect
On Competition..................................................................................................................4

[I.B.1] Relevant Markets................................................................................................4

[I.B.2] Rule of reason operates......................................................................................5

[I.B.3] Evaluation Of Agreement Under Section 19(3).................................................6

[I.B.4] Other Relevant Factors To Establish AAEC......................................................7

[ISSUE – II] That Umbrella Has Abused Its Dominant Position Under Section 4...............9

[II.A] The Relevant Product Market..................................................................................9

[II.B] Determination Of Dominance................................................................................10

[II.B.1] Market Share Of The Enterprise.....................................................................10

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[II.B.2] Size, Resources And Economic Power Of The Enterprise Including
Commercial Advantages Over Competitors................................................................11

[II.B.3] Vertical Integration Of The Enterprises Or Sale Or Service Network Of Such

Enterprises....................................................................................................................11

[II.B.4] Entry Barriers..................................................................................................12

[II.C] Umbrella Has Abused Its Dominant Position........................................................12

[II.C.1] Limitations Or Restrictions To The Market....................................................13

[II.C.2] Denial Of Market Access................................................................................13

[II.C.3] Denial Of Essential Facilities..........................................................................14

[ISSUE – III] The Opposite Parties Are Liable For Abuse Of Collective Dominance.......15

[III.A] The Concept of Collective Dominance................................................................15

[III.A.1] International Jurisprudence Recognises The Concept Of Collective

Dominance...................................................................................................................15

[III.A.1.a] Anti-Competitive Agreement As An Economic Link...................................16

[III.A.2] Purposive Interpretation Of Competition Act...............................................17

[III.B] THAT THE OPPOSITE PARTIES HAVE ABUSED THEIR COLLECTIVE

DOMINANT POSITION IN THE MARKET OF ISOs..................................................18

[III.B.1] Relevant Market.............................................................................................18

[III.B.2] Respondents Are Collectively Dominant In The Market Of Gaming Console

Repair...........................................................................................................................21

[III.B.3] Respondents Have Abused Their Collectively Dominant Position...............23

-PRAYER-...............................................................................................................................XV

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-TABLE OF ABBREVIATIONS-

ABBREVIATIONS EXPANSION

AIR All India Reporter

AVC Average Variable Cost

CCI Competition Commission of India

CCK Competition Commission of Kratos

Co. Company

CompLR Competition Law Journal

DG Director General

ECR European Commission Reporter

EU European Union

HUDA Haryana Urban Development Authority

In Re In Reference

L.J Law Journal

OP Opposite Party

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ABBREVIATIONS EXPANSION

SC Supreme Court

TFEU Treaty on Functioning Of European Union

u/s Under Section

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-INDEX OF AUTHORITIES-

 CASES

1. American Tobacco Co. v. United States, 328 U.S. 781 (1946)...................................11

2. Automobiles Dealers Association, Hatharas, U.P. v. Global Automobiles Ltd., 2012
CompLR 827 (CCI)...................................................................................................7, 9
3. Belaire Owner's Association v DLF Ltd., 2011 SCC OnLine CCI 89.........................24
4. Berkey Photo Inc. v. Eastman Kodak Co., 603 F.2d 263, 275 (2nd Cir. 1979)...........15
5. Commission of the European Communities, [1978] ECR 22......................................11
6. Communications Corp. v. AT&T, 708 F.2d 1081, 1132 (7th Cir. 1994)....................17
7. Compagne Maritime Belge Transports v. Commission [1997] 4 CMLR 273.............19
8. Compagnie Maritime Belge Transports v. Commission (1993) OJ L 34/20, [1995] 5
CMLR 198...................................................................................................................18
9. Competition Commission of India v. Fast Way Transmission India Pvt. Ltd., (2018) 4
SCC 316.......................................................................................................................16
10. Competition Commission of India v. Steel Authority of India Ltd., (2010) 10 SCC
744................................................................................................................................20
11. Dhanraj Pillay v. Hockey India, 2010 SCC OnLine Del 2059....................................14
12. Dhanraj Pillay v. M/s. Hockey India, 2013 SCC OnLine CCI 36.................................6
13. DLF Ltd v. Competition Commission of India, 127 SCL 68 (CAT) (2014)...............12
14. Eastman Kodak Co. v. Image Technical Servs, Inc., 504 U.S. 451 (1992).................23
15. Eros International Media Ltd. v. Central Circuit Cine Association, Indore, 2012 SCC
OnLine CCI 9.................................................................................................................3
16. ESYS Information Technologies Pvt. Ltd. v. Intel Corp., 2014 SCC OnLine CCI 10.
......................................................................................................................................13
17. Europemballage Corporation and Continental Can Company Inc. v Commission of
the European Communities [1973] EU:C:1973:22......................................................19
18. Excel Crop Care v Competition Commission of India, (2017) 8 SCC 47;..................20
19. Freemans Indus LIC v. Eastmen Chem. Co., 172 S.W 3d, 512...................................12
20. Gajinder Singh Kohli v. Genius Propbuild Pvt. Ltd., 2016 SCC OnLine CCI 41.......22
21. Ghanshyam Dass Vij v. Bajaj Corp. Ltd., 2015 SCC OnLine CCI 774........................5

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22. Gulshan Rai Jain v. Rohtas Industries Ltd., RTP Enquiry No. 86/1984, Order dated
23-8-1984.......................................................................................................................4
23. Gurgaon Institutional Welfare Association v. HUDA, 144 SCL 0498 (CCI) (2017)..22
24. Hemraj Electronics v. Monica Electronics Private Ltd., RTP Enquiry No. 93/1985,
Order dated 9-1-1986....................................................................................................4
25. Heydon (1584) 76 ER 637...........................................................................................20
26. Hoffman-la Roche & Co v Commission [1979] ECR 461...........................................26
27. Hoffmann La Roche v. Commission, (1979) ECR 461 (UK)......................................12
28. HT Media Ltd. v. Super Cassettes Industries Ltd., 2014 SCC OnLine CCI 120.........13
29. Kingfisher Airlines Ltd. v. Competition Commission of India, 2010 SCC OnLine
Bom 2186.......................................................................................................................5
30. Kingfisher Airlines Ltd. v. Competition Commission of India, 2010 SCC OnLine
Bom 2186.....................................................................................................................11
31. Km. Suman Upadhyaya And Another v. Vice-Chancellor, Bir Bahadur 2000 (2) AWC
1216..............................................................................................................................20
32. Kuldeep Singh v. Pal Infrastructure and Developers Pvt. Ltd., 2013 SCC OnLine CCI
31..................................................................................................................................12
33. M/s. Amit Auto Agencies v. M/s, King Kaveri Trading Co., 2013 CompLR 832
(CCI)..............................................................................................................................2
34. Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529........................21, 24
35. Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.......................passim
36. Maunsell v. Olins, [1975] AC 373 (Eng.)....................................................................20
37. MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd., 2011 SCC
OnLine CCI 52.............................................................................................................30
38. Michelin v Commission [1983] ECR 3461..................................................................19
39. Mr. Ramakant Kini v. Dr. L H Hiranandani Hospital, 2014 SCC OnLine CCI 15;....13
40. National Insurance Company Ltd. v. Competition Commission of India, 2016 SCC
OnLine Comp AT 450...................................................................................................1
41. National Stock Exchange of India Ltd. v. Competition Commission of India, 2012
SCC OnLine Comp AT 11.....................................................................................12, 14
42. Oscar Bronner v. Mediaprint Zeitungs, [1999] 4 C.M.L.R. 112..................................17
43. Pandrol Rahee Technologies Pvt. Ltd. v. Delhi Metro Rail Corp. Ltd., 2011 CompLR
561 (CCI.........................................................................................................................2

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44. Pandrol Rahee Technologies Pvt. Ltd. v. Delhi Metro Rail Corp. Ltd., 2011 CompLR
561 (CCI).......................................................................................................................1
45. Prasar Bharati v. TAM Media Research Pvt. Ltd., 2013 SCC OnLine CCI 23...........11
46. R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed.
2012)............................................................................................................................18
47. Reliance Big Entertainment Limited v. Karnataka Film Chamber of Commerce, 2012
Comp LR 269 (CCI).......................................................................................................8
48. Royal College of Nursing v. Department for Health and Social Security, [1981] AC
800................................................................................................................................20
49. S.M. DUGAR, GUIDE TO COMPETITION LAW AND POLICY 687 (LexisNexis, 5th ed.
2010)..............................................................................................................................5
50. Schott Glass India Pvt. Ltd. v. Competition Commission of India, 2014 SCC OnLine
Comp AT 3...................................................................................................................15
51. Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.......3, 5, 7
52. Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.23, 24, 29
53. Shivam Enterprises v. Kiratpur Sahib Truck Operaters Co-operative Transport society
Limited, 2015 CompLR 232 (CCI)..............................................................................15
54. Shri Sharad Kumar Jhunjunwala v. Union of India, 2015 CompLR 859 (CCI)..........23
55. Shri Sonam Sharma v. Apple Inc., 2013 SCC OnLine CCI 25.....................................8
56. Societa Italiana Vetro SpA v. Commission T-68/69, T-77/89 & T-78/89, 1992.........18
57. State of Karnataka v. Mangalore University Non-teaching Employees Association,
AIR 2002 SC 1223.......................................................................................................17
58. Surinder Singh Barmi v. Board for Control of Cricket in India (BCCI), 2013 SCC
OnLine CCI 9...........................................................................................................9, 17
59. The Financial Conduct Authority v. Macris, (2015) EWCA Civ. 494 (UK)...............15
60. Toyota Kirloskar Motor Pvt. Ltd. v. Competition Commission of India, 2016 SCC
OnLine Comp AT 176.................................................................................................13
61. Uber (India) Systems (P) Ltd. v. CCI, (2019) 8 SCC 697...........................................10
62. Umesh Verma v. Jai Devi, AIR 1998 SC 2343............................................................20
63. United Brands Co. v Commission 1978 ECR 207.......................................................25
64. United Brands v. Commission, (1978) ECR 207 (UK)...............................................15
65. United States v Microsoft Corporation 253 F.3d 34 (D.C. Cir. 2001).........................28
66. United States v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001).......................16
67. United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001)...........................................15

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68. United States v. Terminal R.R. Ass'n of St. Louis, 224 U.S. 383 (1912)....................17
69. Van den Bergh Foods [1998] 5 CMLR 530.................................................................28
70. Van den Bergh Foods v. Commission(1998) 5 CMLR 530.........................................16
71. VE Commercial Vehicles Ltd. v. UPSRTC, 2015 SCC OnLine Comp AT 172.........22
72. Vishal Pande v. Honda Motorcycle and Scooter India Private Ltd. 2018 SCC OnLine
CCI 15............................................................................................................................3

 BOOKS

1. ABIR ROY, COMPETITION LAW IN INDIA (Eastern Law House, 2nd ed. 2014)......14, 23
2. D.P. MITTAL, COMPETITION LAW AND PRACTICE 171 (Taxmann Publications, 3rd ed.
2011)..............................................................................................................................4
3. D.P. MITTAL, COMPETITION LAW AND PRACTICE 176 (Taxmann Publications, 3rd ed.
2011)..............................................................................................................................4
4. D.P. MITTAL, COMPETITION LAW AND PRACTICE 334 (Taxmann Publications, 3d ed.
2011)......................................................................................................................11, 13
5. R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012
................................................................................................................................22, 25
6. R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed.
2012)..........................................................................................................16, 21, 23, 25
7. R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed.
2012);.....................................................................................................................23, 24
8. S.M. DUGAR, GUIDE TO COMPETITION LAW AND POLICY 687 (LexisNexis, 5th ed.
2010)..............................................................................................................................5

 STATUTES

1. Competition Act, 2002.

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-STATEMENT OF JURISDICTION-

The Informants have most humbly approached the Competition Commission of Imarti under §
26 (8) of the Competition Act, 2002, which states 

“If the report of the Director General referred to in sub-section (3) recommends that there is
contravention of any of the provisions of this Act, and the Commission is of the opinion that
further inquiry is called for, it shall inquire into such contravention in accordance with the
provisions of this Act. “

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-STATEMENT OF FACTS-

The Republic of Imarti, a democratic country has laws pari materia with India. Their
Competition Act was enacted in 2002 which gives due regard to precedents from India, EU
and US. Imarti has 2 major gaming console developers namely, Acme Pvt. Ltd. and Umbrella
Pvt. Ltd. Another company, Epoc Games Pvt. Ltd., is a video game developer which used to
make games for both these console manufacturers.

The servicing of these gaming consoles was handled by a large number of Independent
Service Operations( ISOs) as the technical knowhow was readily available. Acme was a late
entrant, but was able to capture a big chunk of the gaming console market as a result of its
environmentally conscious approach and better versions of nostalgic games, namely “Prince
of Arabia” and ”Road Rash”. As a result of this market share loss, Umbrella Pvt. Ltd. entered
into an exclusive agreement with Epoc Games with the condition that Epoc will exclusively
deal with Umbrella and that Umbrella will exclusively license games from Epoc.

The agreement also included a non- disclosure clause. Subsequently, Umbrella launched a
new gaming console, called “GCX”, which included the games resulting from this agreement.
Umbrella also created it’s “Authorised Service Centres”, with a condition that these centres
will only service Umbrella Consoles and offer Epoc Games for sale. It doesn’t make the
information freely available and only provides the same to these centres.]

CASE NO. RELEVANT FACTS LEADING TO CAUSE OF ACTION

Case No. 1 Acme filed an information with the CCI for restricting distribution of
(Anti- Epoc’s games and abusing its dominant position to deny Acme access
Competitive to this market. The DG Report highlighted the fact the agreement
Vertical
Agreement and between Umbrella and Epoc was an anti – competitive vertical
Abuse of agreement whose purpose was to deny market access to Umbrella’s
Dominance)
competitors. However, the report didn’t find them to be abusing their
dominance as Umbrella wasn’t dominant in this market.

Case No. 2 The ISOs approached the CCI stating that the console manufacturers
(Collective who had entered the market of repair and servicing through their service
Dominance) centres were collectively dominant since they were the ones solely in

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possession of the information. They further stated that these centres had
abused this collective dominance by cutting off access to information
and thus denying access to the market as continuous access to the same
was imperative for ISOs to operate in this market.

The CCI clubbed the cases together and hence, the matter is presented before this
Commission.

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-ISSUES RAISED-

ISSUE - I

WHETHER UMBRELLA AND EPOC ENGAGED IN AN ANTI-COMPETITIVE VERTICAL

AGREEMENT UNDER SECTION 3?

ISSUE - II

WHETHER UMBRELLA ABUSED ITS DOMINANT POSITION UNDER SECTION 4.?

ISSUE - III

WHETHER THE OPPOSITE PARTIES ARE LIABLE FOR ABUSE OF COLLECTIVE

DOMINANCE ?

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-SUMMARY OF ARGUMENTS-

[ISSUE – I] WHETHER UMBRELLA AND EPOC ENGAGED IN AN ANTI-

COMPETITIVE VERTICAL AGREEMENT UNDER SECTION 3

The Informants submits that the Agreement between Umbrella and Epoc is an anti-
competitive vertical agreement under Section 3, of the Imarti Competition Act, 2002. [1] That
the given agreement is covered under the Section 3(4) of the Act as an Exclusive Supply
Agreement, Exclusive Distribution Agreement and Refusal to deal. [2] That the given
agreement results in an Appreciable Adverse Effect on Competition based on the rule of
reason accessing the size of the enterprise, the duration of the agreement and various factors
laid out in Section 19(3) of the Act of 2002, such as denial of market access to the Informant,
creation of barriers for the new entrants and foreclosure of competition.

[ISSUE – II] WHETHER UMBRELLA HAS ABUSED ITS POSITION IN THE

MARKET UNDER SECTION 4

The Informant submits that Umbrella has abused its dominant position under Section 4 of the
Imarti Competition Act, 2002. [1] That Umbrella held a dominant position in the console
manufacturers market owing to various determinants provided under Section 19(4) of the Act
like market share, size, economic resources, vertical integration and creation of entry barriers.
[2] That Umbrella had abused its dominant position under Section 4(2)(a), 4(2)(b) and 4(2)(c)
of the Act and by denying essential facilities to its competitors.

[ISSUE – III] THE OPPOSITE PARTIES ARE LIABLE FOR ABUSE OF

COLLECTIVE DOMINANCE

The Informants humbly submit that by examining the international jurisprudence of

competition law and by adopting purposive interpretation of statute, it is concluded that
Opposite Parties should be held liable for the abuse of collective dominant position as they
have violated provisions under Section 4(2)(b), 4(2)(c) and 4(2)(e) of the Competition Act,
2002 limiting the new and existing competitors to enter or survive in the market.

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-ARGUMENTS ADVANCED-

[ISSUE – I] THAT UMBRELLA AND EPOC ENGAGED IN AN ANTI-COMPETITIVE

VERTICAL AGREEMENT UNDER SECTION 3

¶1. The Informant, Acme in the instant case filed an information under Section 19 of the
Imarti Competition Act, 20021 alleging that the Opposite Party i.e Umbrella and Epoc had
violated the provisions of the Act by restricting distribution of Epoc’s games and their source
code exclusively to Umbrella vide Agreement dated 09.05.2015.2

¶2. It is humbly submitted that the above mentioned agreement falls under the Section
3(1) of the Act3 which prohibits an agreement relating to the production, supply, distribution,
storage, acquisition or control of goods or provision of services by enterprises, which causes
or is likely to cause an appreciable adverse effect on competition (AAEC) within India. 4

[I.A] ANTI-COMPETITIVE AGREEMENTS

¶3. Competition laws have been put in place to ensure and protect the free and fair
competition between sellers and producers, competing against each other. 5 In the instant case
the anti-competitive agreement is entered between, Umbrella and Epoc which are two
enterprises engaged at different levels of production, with Epoc (game developer 6) in the
upstream market and Umbrella (console manufacturer 7) being in the downstream market for
the console market of Imarti. Hence, it is submitted that the agreement, between Umbrella and
Epoc falls within the ambit of Section 3(4) of the Act which seeks to prohibit agreements at
different stages or levels of production chain which cause or are likely to cause an appreciable
adverse effect on competition in contravention of section 3(1) of the Competition Act. 8

[I.A.1] EXCLUSIVE SUPPLY AGREEMENT

¶4. According to explanation (b) of Section 3(4) of the Act, “exclusive supply agreement”
1
¶ 22, MOOT PROPOSITION.
2
¶ 16, MOOT PROPOSITION.
3
§ 3(1), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
4
National Insurance Company Ltd. v. Competition Commission of India, 2016 SCC OnLine Comp
AT 450.
5
Pandrol Rahee Technologies Pvt. Ltd. v. Delhi Metro Rail Corp. Ltd., 2011 CompLR 561 (CCI).
6
¶ 2, MOOT PROPOSITION.
7
¶ 6, MOOT PROPOSITION.
8
supra Note 3.

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includes any agreement, which restricts in any manner the purchaser in the course of his trade
from acquiring or otherwise dealing in any goods other than those of the seller or any other
person.9

¶5. In the case of M/S Amit Auto Agencies,10 an agreement in which the informant was
appointed as the sole selling agent of the opposite party and was restricted to not deal in
similar products of competitors was termed as an Exclusive Supply Agreement.

¶6. Further, in the Delhi Metro Rail Corporation11 case, the commission observed that,
“The buyer may itself be producing some other product or service … But here, the buyer
would have the status of a consumer… right of consumer’s choice must be sacrosanct in the
market economy.”

¶7. In furtherance, Guidelines on Vertical Restraints12 explains that market share of the
buyer on the upstream purchase market is important to “impose” exclusive supply which
forecloses other buyers from access to supplies, but it is the importance of the buyer on the
downstream market which determines whether a competition problem may arise. Applying
this to the instant case, it is humbly submitted that Umbrella, has the biggest market share 13 in
the downstream market and is thereby more likely to cause problems in the competition.

[I.A.2] EXCLUSIVE DISTRIBUTION AGREEMENT

¶8. According to explanation (c) of Section 3(4) of the Act, “exclusive distribution
agreement” includes any agreement to limit, restrict or withhold the output or supply of any
goods or allocate any area or market for the disposal or sale of the goods.14

¶9. In the broader sense, exclusive distribution agreement means, an arrangement

between the supplier and distributor wherein the distributor exclusively sells the products
within a defined relevant market.15

¶10. Also, in the Honda Siel case,16 it was held that the agreements between OEMs and
their authorized dealers had certain clauses that specifically restricted the sale of spare parts
over the counter to third parties, were in the nature of an exclusive distribution agreement.
9
§ 3(4)(b), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
10
M/s. Amit Auto Agencies v. M/s, King Kaveri Trading Co., 2013 CompLR 832 (CCI).
11
Pandrol Rahee Technologies Pvt. Ltd. v. Delhi Metro Rail Corp. Ltd., 2011 CompLR 561 (CCI).
12
Guidelines on Vertical Restraints, SEC (2010) 413 (Oct. 29, 2010).
13
Table 3, MOOT PROPOSITION.
14
§ 3(4)(c), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
15
Case 26/76, Metro v. Commission, 1977 E.C.R. 1875.
16
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.

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¶11. In the instant case, relying on the facts of the above cases it can be concluded that
agreement between Umbrella and Epoc, 17 which restricts the distribution of Epoc’s games to
any other console manufacturer and prohibits sharing of their source code in the console
manufacturers market,18 amounts to an exclusive distribution agreement.

[I.A.3] REFUSAL TO DEAL

¶12. According to explanation (d) of Section 3(4) of the Act, “refusal to deal” includes any
agreement, which restricts, or is likely to restrict, by any method the persons or classes of
persons to whom goods are sold or from whom goods are bought. 19 In Eros International
case,20 the commission gave an observation that refusal to deal under section 3(4) of the act
would involve agreement between the entities functioning at different levels of production.

¶13. Further in the Commission has found that, dealership agreement which include a
clause which restricted the dealer from engaging in direct or indirect business with other
manufacturers, such a clause was found to be a refusal to deal clause and as a result the
agreement was found to be in contravention of section 3(4) of the Act.21

¶14. Refusal to deal can include both refusal to sell and refusal to buy and the adverse
effects can be adjudged by observing the effect of such a practice upon the overall
competition and the fact that if such a practice would lead to foreclosure of competitors. 22

¶15. The primary competition concern that is expected to arise in such a scenario is the
distortion of competition in a market downstream from the (upstream) market of refused
input.23Applying the same to the facts, it can be observed that the console manufacturers
market i.e. the downstream market was distorted by the refusal of input 24 by Epoc i.e. the
upstream market, leading to the foreclosure of the downstream market. It light of this
observation and the cases referred, is humbly submitted that in the present case the agreement
between Umbrella and Epoc,25 amounts to a refusal to deal in contravention of section 3(4)
17
supra Note 2.
18
Id.
19
§ 3(4)(d), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
20
Eros International Media Ltd. v. Central Circuit Cine Association, Indore, 2012 SCC OnLine CCI 9.
21
Vishal Pande v. Honda Motorcycle and Scooter India Private Ltd. 2018 SCC OnLine CCI 15.
22
Hemraj Electronics v. Monica Electronics Private Ltd., RTP Enquiry No. 93/1985, Order dated 9-
1-1986, Gulshan Rai Jain v. Rohtas Industries Ltd., RTP Enquiry No. 86/1984, Order dated 23-8-
1984.
23
Directorate for Finance and Enterprise Affairs, Roundtable on Refusal to Deal,
DAF/COMP/WD(2007)100.
24
¶ 15, MOOT PROPOSITION.
25
supra Note 2.

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(d) of the Act26 and causing adverse effects to competition.27

[I.B] THE AGREEMENT BETWEEN UMBRELLA AND EPOC CAUSES APPRECIABLE

ADVERSE EFFECT ON COMPETITION

¶16. Section 3(2) of the Act enunciates that the key determinant of anti-competitive
agreement is an AAEC.28 As per the scheme of the Act, any vertical agreement is rendered
void, only if it causes or is likely to cause an AAEC in India.29 The term refers to a particular
economic consequence which harms the consumer welfare sense of economies i.e. effect on
price or output.30

¶17. In the case of Mahindra & Mahindra Ltd.,31 it was held that, “It is only where a trade
practice has the effect, actual or probable, of restricting, lessening or destroying competition
that is liable to be regarded as a restrictive trade practice.”

¶18. Meaning of the word appreciable is “Capable of being perceived or recognized in the
senses, perceptible but not a synonym of substantial.” 32 Thus, restraint of trade is acceptable
as long as it is reasonable.33 The concentration is on the potential harm.34

[I.B.1] RELEVANT MARKETS

¶19. Establishment of relevant market under Section 19(7) of the Act35 is an essential
condition before any exercise can be undertaken by the Commission. 36 The Section 3(4)37
uses the word ‘different markets’ hence, the term ‘Relevant Market’ is to be defined to
determine the anti-competitive nature of the disputed agreement. The ‘relevant market’ is
where the demand and supply interact or the area of competition where the other party
operates.38

26
supra Note 19.
27
¶ 21, MOOT PROPOSITION.
28
supra Note 4.
29
§ 3(4), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
30
D.P. MITTAL, COMPETITION LAW AND PRACTICE 171 (Taxmann Publications, 3rd ed. 2011).
31
Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
32
S.M. DUGAR, GUIDE TO COMPETITION LAW AND POLICY 687 (LexisNexis, 5th ed. 2010).
33
Id. at 690.
34
D.P. MITTAL, COMPETITION LAW AND PRACTICE 176 (Taxmann Publications, 3rd ed. 2011).
35
§ 19(7), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
36
Kingfisher Airlines Ltd. v. Competition Commission of India, 2010 SCC OnLine Bom 2186.
37
§ 3(4), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
38
MHRD, Vertical Agreement under Competition Act 2002,
http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/03._competition_law/
14._vertical_agreements_under_competition_act_2002__/et/5654_et_14et.pdf.

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In the case of Shamsher Kataria v. Honda Siel,39 the Commission noted that while
ascertaining AAEC in case of any agreement that falls under section 3(4), the possibility of
AAEC has to be examined at both levels of production and supply chain in both separate
markets where the agreeing parties operate.

¶20. For the agreement to be considered anti – competitive under the Section 3(4) it has to
be proved by the rule of reason under the factors in Section 19(3) of the Act. 40 In the instant
case, it is humbly submitted that for ascertaining AAEC, the two operating relevant markets
are, the upstream market of the game developers consisting of Epoc and the downstream
market of the console manufacturers consisting of Umbrella.

[I.B.2] RULE OF REASON OPERATES

¶21. The Act provides for a presumption of appreciable adverse effect on competition for
horizontal agreements41 while it entertains no such presumption in the case of vertical
agreements42. The rule of reason provides that an agreement shall be regarded as anti-
competitive and in contravention of Section 3(1) of the Act only when it is established that
the agreement falls within sub-section (4) and its appreciable adverse effect on competition is
established by the complainant.43

¶22. The rule of reason implies that a fact based approach should be adopted for the
purpose of evaluating the reasonableness of the alleged anti-competitive conduct. 44
“Competition concerns in a vertical relationship arise if one of the agent on account of its
market power is able to impose unreasonable restraints on the other that are likely to cause
appreciable adverse effect on competition.”45

¶23. Thus, the agreement must be proved to have actual or potential effect on competition
to such an extent that on the relevant market, negative effects on prices, output, innovation or
the variety/quality of goods and services can be expected with a reasonable degree of
probability.46
39
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.
40
Ghanshyam Dass Vij v. Bajaj Corp. Ltd., 2015 SCC OnLine CCI 774.
41
§ 3(3), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
42
supra Note 37.
43
S.M. DUGAR, GUIDE TO COMPETITION LAW AND POLICY 687 (LexisNexis, 5th ed. 2010).
44
Cyril Amarchand Mangaldas, Appreciable Adverse Effects on Competition (Feb 25, 2020, 4:00
PM), https://competition.cyrilamarchandblogs.com/tag/aaec/.
45
Dhanraj Pillay v. M/s. Hockey India, 2013 SCC OnLine CCI 36.
46
RAGAHVAN COMMITTEE REPORT (1999),
http://www.competitioncommission.gov.in/Act/Report_of_High_Level_Committee_on_Competition_
Policy_Law_SVS_Raghavan_Committee29102007.pdf.

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[I.B.3] EVALUATION OF AGREEMENT UNDER SECTION 19(3)

¶24. Whether an agreement restricts the competitive process is always done by an analysis
of the balance between the positive and negative factors listed under Section 19(3) 47 and
accessing the net impact on competition.48

[I.B.3.a] There is a creation of barriers to new entrants in the market

¶25. Umbrella and Epoc’s agreement dated 09.05.2015 49 creates barrier to new entrants in
the market. In the case of Eastern India Motion Picture Association (EIMPA),50 it was
concluded that EIMPA making it mandatory for all its existing members to not deal with a
person who was not a part of the association was tantamount to creation of barriers for new
entrants.

¶26. It is humbly submitted that, by applying the inference of the case mentioned above to
the instant case, agreement in question51 is a refusal to deal agreement which restricts Epoc
from developing games for other console manufacturers and Umbrella to only carry games
from Epoc.

52
¶27. The agreement even restricts Epoc from releasing a limited source code of its
games, which it used to do earlier, into the open market for the other gaming developers
which thereby has the effect of new console manufacturers being prevented from entering the
relevant market. Thus, the agreement clearly blocks both Epoc and Umbrella to deal with
anyone else other than each other, and can be said to effectively create barriers to new
entrants in the market and effectively causing AAEC.

[I.B.3.b] The agreement is driving competitors out of the market

¶28. Umbrella and Epoc’s agreement dated 09.05.201553 is driving competitors out of the
market. Article 101(3)54 (analogous to section 3(4) of the Act) provides that an agreement,
containing restrictive clauses will cause AAEC if such restrictive clauses 'afford such
47
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.
48
Automobiles Dealers Association, Hatharas, U.P. v. Global Automobiles Ltd., 2012 CompLR 827
(CCI).
49
supra Note 2.
50
Mrs. Manju Tharad, Propreitress v. Eastern India Motion Picture Association (EIMPA), 2012 Comp
LR 1178 (CCI).
51
supra Note 2.
52
Id.
53
Id.
54
Consolidated Version of the Treaty on the Functioning of the European Union art.101(3), May 9,
2008, 2008 O.J.(C 115) 47[hereinafter TFEU]

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undertakings the possibility of eliminating competition in respect of a substantial part of the
products in question.'55 In the case of Reliance Big Entertainment v. Karnataka Chamber of
Commerce,56 it was held that a clause prohibiting members to deal with non-members had an
impact on driving competitors out of the market.

¶29. In the instant case, relying on Article 101(3) 57 and the case mentioned above, the fact
that Acme’s sales are diminishing and it is hampering its ability to conclude exclusive
agreements with other gaming developers in the market 58 concludes that the given agreement
effectively drives the competitors out of the market, thereby causing AAEC.

[I.B.3.c] There is foreclosure of competition by the hindering of entry to the market

¶30. In the case of, Shri Sonam Sharma v. Apple Inc., it was concluded that, “an agreement
between two parties in a vertical chain to be anticompetitive essentially requires that the
intention of such an agreement was foreclosure in both the relevant markets resulting in
considerable consumer harm.”59

¶31. Also, in the case of Reliance Big Entertainment v. Karnataka Chamber of

Commerce60, it was held that a clause prohibiting members to deal with non-members could
result in foreclosure of competition by hindering entry into the market.

¶32. Similarly, in the instant case, the clause in the agreement 61 of refusal to deal with
anyone other than each other on account of Epoc and Umbrella would effectively result in
foreclosure of competition by hindering entry to the market and thereby causing AAEC.

[I.B.4] OTHER RELEVANT FACTORS TO ESTABLISH AAEC

¶33. The other relevant factors required to establish AAEC are as listed below.

[I.B.4.a] Size

¶34. In the case of Hatharas Automobile Dealers Association case, it was held that,
“Normally the competition in different level of production - Supply chains may be adversely

55
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.
56
Reliance Big Entertainment Limited v. Karnataka Film Chamber of Commerce, 2012 Comp LR 269
(CCI).
57
TFEU art.101(3).
58
supra Note 27.
59
Shri Sonam Sharma v. Apple Inc., 2013 SCC OnLine CCI 25.
60
Reliance Big Entertainment Limited v. Karnataka Film Chamber of Commerce, 2012 Comp LR 269
(CCI).
61
supra Note 2.

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affected when both entities to the agreement possess some market power in their respective
spheres of market … both parties possess atleast 30% market share in respective markets.”62

¶35. In the instant case, relying on the above mentioned case, Umbrella controls 30.5% of
the market as of 2015,63 the year of agreement and similarly Epoc Games is a major
enterprise with a great reputation in video game development and was also the video game
supplier to two of the biggest gaming console manufacturers in the market. 64 Thus, both the
enterprises in the agreement are sizeable to cause Appreciable Adverse Effect on
Competition.

[I.B.4.b] Long term agreement

¶36. In the landmark case of Sh. Surinder Singh v. BCCI65, it was held that,
“grant of longer duration exclusive agreements leads to anti-competitive consequences such
as creation of barriers for new entrants, driving out the existing competitors and
foreclosure of competition by hindering entry into the market.”

¶37. Further the same judgment highlighted that,

the agreements for a longer term promotes market power of the enterprises and
accordingly, have the effect of driving the existing competitors out of the market and
further acts as hindrance to the potential entrants in future. This also denies certain
benefits like improvements in technology with better viewing experience till
the agreement continues. Accordingly as a side effect this may also lead to
suppression of incentive for developments in technologies. Therefore, in view of the
foregoing, it can be concluded that long term media agreements create appreciable
adverse effect on competition.66
¶38. In the instant case, the agreement between Umbrella and Epoc dated 09.05.2015, is of
six years.67 Gaming Console industry is dynamic and time sensitive 68. The previous assertion
is affirmed by the fact that the video game consoles were able to capture a 51% share in the
video game market, mere 2 years after the release of the first gaming console in Imarti. 69

¶39. Another example of the same is that Acme launched its first gaming console in the

62
Automobiles Dealers Association, Hatharas, U.P. v. Global Automobiles Ltd., 2012 CompLR 827
(CCI).
63
supra Note 13.
64
supra Note 2; ¶ 6, MOOT PROPOSITION.
65
Surinder Singh Barmi v. Board for Control of Cricket in India (BCCI), 2013 SCC OnLine CCI 9.
66
Id.
67
supra Note 2.
68
¶ 11, MOOT PROPOSITION.
69
¶ 7, MOOT PROPOSITION; Table 1, MOOT PROPOSITION.

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year 2011 and was the second biggest player by 2015. 70 Therefore, it can be concluded that
six years in such an industry is really long and thereby causing AAEC.

¶40. Thus, it can be conclusively said that, in such a dynamic industry, the exclusive
supply agreement between Umbrella and Epoc, two enterprises having considerable market
power, which includes clauses which can be termed as exclusive supply agreement and
refusal to deal, for a long time of six years is anti-competitive causing AAEC and thereby in
violation of Section 3 of the Act.71

[ISSUE – II] THAT UMBRELLA HAS ABUSED ITS DOMINANT POSITION UNDER SECTION
4.

¶41. The Informant Acme, in the information filed under Section 19 of the Imarti
Competition Act 2002, alleged that Umbrella abused its position in the market for
manufacture and sale of gaming consoles by denying Acme access to the market. 72 This falls
under Section 4 of the Act.73 There are two important ingredients which Section 4(1) 74 itself
refers to if there is to be an abuse of dominant position 75: (1) the dominant position itself and
(2) its abuse.

[II.A] THE RELEVANT PRODUCT MARKET.

¶42. To assess and evaluate the allegations pertaining to Sec 4(2)(a)(i), 76 4(2)(b)77 and 4(2)
(c),78 it is necessary to define the relevant market 79 and the dominance of Umbrella in the
relevant market. What constitutes a relevant market has been provided for under section 2(r)
of the Act, according to which ““relevant market” means the market which may be
determined by the Commission with reference to the relevant product market or the relevant
geographic market or with reference to both the markets.”80

¶43. Establishment of relevant market under Section 19(7) of the Act81 is an essential
70
¶ 13, MOOT PROPOSITION.
71
§ 3, Competition Act, 2002, No. 12, Acts of Parliament, 2003.
72
supra Note 1.
73
§ 4, Competition Act, 2002, No. 12, Acts of Parliament, 2003.
74
§ 4(1), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
75
Uber (India) Systems (P) Ltd. v. CCI, (2019) 8 SCC 697.
76
§ 4(2)(a)(i), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
77
§ 4(2)(b), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
78
§ 4(2)(c), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
79
Prasar Bharati v. TAM Media Research Pvt. Ltd., 2013 SCC OnLine CCI 23.
80
§ 2(r), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
81
§ 19(7), Competition Act, 2002, No. 12, Acts of Parliament, 2003.

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condition before any exercise can be undertaken by the Commission. 82 In the instant case the
relevant market established is the market for manufacture and sale of gaming consoles. 83

[II.B] DETERMINATION OF DOMINANCE.

¶44. The term dominant position‘ has been defined in the Act as: a position of strength,
enjoyed by an enterprise, in the relevant market, in India, which enables it to (i) operate
independently of competitive forces prevailing in the relevant market; or (ii) affect its
competitors or consumers or the relevant market in its favor’.84

¶45. The control of an undertaking in a market can be measured on the basis of market
shares, total annual turnover85, size of the assets, number of employees and the time for which
the share is held.86

Phrases like "size and importance of competitors", "vertical integration", "relative

advantage" etc. are concepts that indicate the strength to leverage based on strengths
in other markets. It is this strength that would render an enterprise dominant in the
relevant market itself and would expose its conduct therein to evaluation of any
other abuse of dominance separately.87
¶46. In order to attract provisions of the section 4 of the Act, the dominance, if any, of the
enterprise needs to be examined under explanation (a) to section 4 of the Act with due regard
to the factors mentioned under section 19(4).88In the instant case Umbrella’s market strength
can be observed from the following points:

[II.B.1] MARKET SHARE OF THE ENTERPRISE

¶47. Market share is in itself indicative of dominance unless there are exceptional
circumstances89 and even depends on the market share of the competitors. 90 The Commission
has read this test broadly to include relationships characterized by a contractual lock-in. 91In
the instant case Umbrella has a dominant share of 30.5% in the relevant market 92 and is in a
position to abuse its dominant position. The position of Umbrella has been strengthened
82
Kingfisher Airlines Ltd. v. Competition Commission of India, 2010 SCC OnLine Bom 2186.
83
supra Note 1.
84
The Competition Act, 2002, § 4(a); Case 27/76, United Brands Company
and United Brands Continental BV v. Commission of the European Communities, [1978] ECR 22.
85
American Tobacco Co. v. United States, 328 U.S. 781 (1946).
86
Commission notice in the definition of relevant market, 1997 O.J. (C 372) 3.
87
National Stock Exchange of India Ltd. v. Competition Commission of India, 2012 SCC OnLine Comp AT 11.
88
Kuldeep Singh v. Pal Infrastructure and Developers Pvt. Ltd., 2013 SCC OnLine CCI 31.
89
Hoffmann La Roche v. Commission, (1979) ECR 461 (UK).
90
Freemans Indus LIC v. Eastmen Chem. Co., 172 S.W 3d, 512.
91
DLF Ltd v. Competition Commission of India, 127 SCL 68 (CAT) (2014).
92
supra Note 13.

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further by its contract with Epoc93, which can be construed as a use of abuse of dominant
position. Firms with an insignificant share in a market are unlikely to have any influence no
matter what practices they may adopt in comparison to a firm that holds a dominant
position.94

¶48. It is humbly submitted before the Commission that Umbrella enjoys a considerable
share in the market, to influence the market by entering into an exclusive supply agreement
with Epoc, therefore it can be said to be dominant in the relevant market. “However, market
shares alone do not determine whether an undertaking is dominant or has substantial market
power. Therefore, these initial indications are put in perspective by other factors when
making an overall assessment of the market power of the firm under investigation.”95

[II.B.2] SIZE, RESOURCES AND ECONOMIC POWER OF THE ENTERPRISE INCLUDING

COMMERCIAL ADVANTAGES OVER COMPETITORS

¶49. It is humbly submitted that Umbrella is the largest and one of the oldest console
manufacturer in Imarti.96 Therefore, it can be presumed that Umbrella has a considerable
holding in the market and has the ability to impede or influence the competition in the
relevant market.97 Further, it is humbly submitted that with its agreement with Epoc, 98
Umbrella has gained a huge commercial advantage over its competitors and also holds a
considerable economic power in the console manufacturers market. Its economic power is
further showcased by the fact that it sold 1 million of its latest consoles in mere ten months. 99

[II.B.3] VERTICAL INTEGRATION OF THE ENTERPRISES OR SALE OR SERVICE

NETWORK OF SUCH ENTERPRISES

¶50. In the case of Atos Worldline India Pvt. Ltd., the commission ruled that upstream and
downstream vertical integration by the opposite party has allowed it to act independent of its
competitors. Thus, making it dominant in its market.

Similarly, it is humbly submitted that with its agreement with Epoc and with the creation of
93
supra Note 2.
94
D.P. MITTAL, COMPETITION LAW AND PRACTICE 334 (Taxmann Publications, 3d ed. 2011).
95
HT Media Ltd. v. Super Cassettes Industries Ltd., 2014 SCC OnLine CCI 120; Mr. Ramakant Kini
v. Dr. L H Hiranandani Hospital, 2014 SCC OnLine CCI 15; ESYS Information Technologies Pvt.
Ltd. v. Intel Corp., 2014 SCC OnLine CCI 10.
96
supra Note 2.
97
Toyota Kirloskar Motor Pvt. Ltd. v. Competition Commission of India, 2016 SCC OnLine Comp
AT 176.
98
supra Note 2.
99
¶ 19, MOOT PROPOSITION

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authorized service centers, Umbrella has vertically integrated both upstream and downstream
allowing it to act independent of its competitors and making it dominant in the relevant
market.

[II.B.4] ENTRY BARRIERS

¶51. The agreement between Umbrella and Epoc100 has created new barriers by Epoc
refusing to deal with anyone other than Umbrella. High cost of entry, financial risk,
marketing and technical entry barriers further strengthen the dominant position. 101 In an
industry like Gaming console manufacturing, which is technology heavy and relies on mass
appeal, entry is difficult. Thus, the largest player in the market that is Umbrella’s 102 dominant
position is further strengthened.

¶52. In the case of Sh. Dhanraj Pillay v. M/s. Hockey India,103the commission focused on
the complementarity of the consumer and the provider of services in the making of a final
product. It held that dominance could be made in terms of the heft of the parties and the
balancing powers asserted upon each other. That is, the fact that both need the other party so
as to fulfill their own economic interests makes them imperative for each other. The
commission held that the CoC agreement was a testimony to the dominance that Hockey
India exercised. The said agreement restricts player’s access to private leagues. 104

¶53. Now, in the instant case, Umbrella and Epoc are interdependent on each other for the
fulfillment of their economic interests. In this case, Umbrella and Epoc have entered an
agreement105 which can be said to be similar to the CoC agreement as both the agreements
restrict dealing, the current agreement restricts Epoc’s right to deal with anyone other than
Umbrella.

Thus, it can be conclusively proved from the above arguments that in the instant case,
Umbrella holds a dominant position in the relevant market.

100
supra Note 2.
101
National Stock Exchange of India Ltd. v. Competition Commission of India, 2012 SCC OnLine
Comp AT 11.
102
supra Note 13.
103
Dhanraj Pillay v. Hockey India, 2010 SCC OnLine Del 2059.
104
Id.
105
supra Note 2.

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[II.C] UMBRELLA HAS ABUSED ITS DOMINANT POSITION.

¶54. Abuse of dominance106 occurs when a dominant firm imposes, directly or indirectly,
unfair or discriminatory condition or price, 107 in purchase or sale of goods and
services108going by the SCP model Structure.109

¶55. Abuse can either be exploitative and exclusionary.110 It the instant case the abuse of
dominance is exclusionary as Umbrella entered into an exclusive dealing agreement with
Epoc, thereby pushing other console manufacturers like Acme out of the market, by causing a
dip in their sales and hindering its ability to enter into exclusive agreements with other
gaming developers.

[II.C.1] LIMITATIONS OR RESTRICTIONS TO THE MARKET

¶56. Section 4(2)(b) of the Act,111 states that limiting or restricting provision of services or
market and technical or scientific development relating to goods or services is tantamount to
abuse of dominant position. This has been further elucidated in the case of Shivam
Enterprises112 wherein denying access and causing obstructions to the market for other truck
operators by illegal means was held to be violative of section 4(2)(b)(i). In the Schott Glass
case,113 the commission ruled that getting converters to exclusively buy from it was a
violation of 4(2)(b)(i).

¶57. In the instant case, facts of the above mentioned cases can be equated with the
agreement entered into by Epoc and Umbrella 114 which restricts Epoc to only sell to Umbrella
and vice versa. The same has been acknowledged by the Director General in his report 115 and
established in issue one. Thus, Umbrella has tried to limit and restrict provision of services,
market and has further restricted technical and scientific development relating to goods and
services, thereby violating 4(2)(b)(i) and (ii).

106
D.P. MITTAL, COMPETITION LAW AND PRACTICE 334 (Taxmann Publications, 3d ed. 2011).
107
Berkey Photo Inc. v. Eastman Kodak Co., 603 F.2d 263, 275 (2nd Cir. 1979).
108
United Brands v. Commission, (1978) ECR 207 (UK).
109
The Financial Conduct Authority v. Macris, (2015) EWCA Civ. 494 (UK).
110
United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001).
111
supra Note 77.
112
Shivam Enterprises v. Kiratpur Sahib Truck Operaters Co-operative Transport society Limited,
2015 CompLR 232 (CCI).
113
Schott Glass India Pvt. Ltd. v. Competition Commission of India, 2014 SCC OnLine Comp AT 3.
114
supra Note 2.
115
¶ 25, MOOT PROPOSITION

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[II.C.2] DENIAL OF MARKET ACCESS

¶58. In the instant case, the Director General’s Report submitted to the Commission 116 ,
stated that due to the agreement of Umbrella 117, the informant Acme had been denied market
access in the market for gaming consoles in Imarti 118 holding it in violation of the provisions
of the Section 4(2)(c) of the Act.119

¶59. Sec 4(2)(c) of the Act can be widely interpreted to include any entry barriers created
by the dominant enterprise, by its conduct which results in denial of market access, “in any
manner” will be an abuse. Exclusive dealing 120 arrangements are commonly defined as
arrangements, which require a supplier to sell all of its products or services or a large extent
thereof to the dominant firm.121In the case of United States v. Microsoft Corporation122, the
commission declared Microsoft liable for monopolisation as it entered into exclusionary
agreements123 with internet access providers who agreed not to use, distribute or provide
ready access to any Internet browser other than IE.

¶60. Similarly, in the instant case, Umbrella has entered into an exclusive dealing
arrangement with Epoc. The same is established by the fact that the said agreement includes
clauses suggesting refusal to deal with anyone but each other. 124

[II.C.3] DENIAL OF ESSENTIAL FACILITIES

¶61. An "essential facilities doctrine" (EFD) specifies when the owner(s) of an essential"
or bottleneck facility is mandated to provide access to that facility at a "reasonable" price. 125
A facility is essential, if without its access, competitors would be subject to a serious,
uneconomic handicap making their activities uneconomical. 126 The ECJ in Oscar Bronner

116
§ 26(3), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
117
supra Note 2.
118
Id.
119
Competition Commission of India v. Fast Way Transmission India Pvt. Ltd., (2018) 4 SCC 316.
120
ABIR ROY, COMPETITION LAW IN INDIA (Eastern Law House, 2nd ed. 2014).
121
'Unilateral Conduct Working Group' (ICN.org, 2018)
<www.internationalcompetitionnetwork.org/wp-content/uploads/2018/09/WorkPlan2018-
21UCWG.pdf>.
122
United States v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001).
123
Van den Bergh Foods v. Commission(1998) 5 CMLR 530.
124
supra Note 2.
125
OECD POLICY, THE ESSENTIAL FACILITIES CONCEPT,
http://www.oecd.org/competition/abuse/1920021.pdf (Last visited Feb. 15, 2020); United States v.
Terminal R.R. Ass'n of St. Louis, 224 U.S. 383 (1912).
126
State of Karnataka v. Mangalore University Non-teaching Employees Association, AIR 2002 SC
1223.

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case,127 held that for application of EFD it is necessary to show that access is being refused to
a facility that is indispensable for carrying on business. In the instant case the access to
gaming developers is an essential facility for the console manufacturers in Imarti. After
concluding the exclusive agreement between Epoc and Umbrella the competitors in the
market such as Acme were denied access to the essential facility of gaming developers, even
for continuing of previous agreements for the development of games.128

¶62. Thus, it can be conclusively established based on the arguments advanced that
Umbrella has abused its dominant position under Section 4 of the Act.129

[ISSUE – III] THE OPPOSITE PARTIES ARE LIABLE FOR ABUSE OF COLLECTIVE
DOMINANCE.

¶63. It is most humbly submitted to the hon’ble Commission on the behalf of Informants
that there exists an abuse of collective dominance against the Independent Service Operators.
It is pertinent to note that by adopting purposive interpretation of the statute and considering
the value of evolved international jurisprudence, it can be concluded that the respondents
should be held liable for abuse of collective dominant position. The said conclusion is drawn
as the Opposite Parties have violated provisions under Section 4(2)(c) and 4(2)(e) of the
Competition Act, 2002 which acts as an impediment for new and existing competitors to
enter or survive in the relevant market.

[III.A] THE CONCEPT OF COLLECTIVE DOMINANCE

¶64. The law and jurisprudence on collective dominance has evolved and developed
considerably in the recent years. 130 Collective Dominance was considered was an issue of
immense value for one of the first time in the Flat Glass case.131 The Hon’ble Court of first
instance suggested the following:

There is nothing, in principle, to prevent two or more independent economic entities

from being, on a specific market, united by such economic links that, by virtue of
that fact, together they hold a dominant position vis à vis the other operators on the
same market, a case would be, where two or more independent economic entities
jointly have, through agreements or licenses, a technological lead affording them
127
Case C-7/97, Oscar Bronnerv. MediaprintZeitungs, [1999] 4 C.M.L.R. 112; MCI
Communications Corp. v. AT&T, 708 F.2d 1081, 1132 (7th Cir. 1994).
128
¶ 20, MOOT PROPOSITION
129
Surinder Singh Barmi v. Board for Control of Cricket in India (BCCI), 2013 SCC OnLine CCI 9.
130
R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012).
131
Societa Italiana Vetro SpA v. Commission T-68/69, T-77/89 & T-78/89, 1992.

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the power to behave to an appreciable extent independently of their competitors,
their customers and ultimately of their consumers.132

[III.A.1] INTERNATIONAL JURISPRUDENCE RECOGNISES THE CONCEPT OF COLLECTIVE

DOMINANCE

¶65. Over a period of time, various cases have recognised the concept of Collective
Dominance and have penalised the abuse of same. In Compagnie Maritime Belge Transports
v. Commission133 the commission defined the concept and held that collective dominance
occurs when two or more businesses with some degree of connection influence the structure
of a market through their conduct or through concerted strategic decisions. The commission
also held that collectively dominant members of a liner conference were found to have
engaged in various practices with the intention of eliminating competitors from the markets
by practices such as selective price cutting and grant of loyalty rebates. This also marks the
infringement of the Article 102.134

¶66. In the Europemballage Corporation and Continental Can Company Inc. v.

Commission of the European Communities, it was observed that businesses within “the same
corporate group, such as a business conglomerate, or within a single economic entity, such as
a multi-national company with subsidiaries, can be regarded as having an adequate
connection to establish the presence of collective dominance.”135

¶67. Moreover, various countries have accepted and incorporated the concept of collective
dominance in their respective municipal laws. For instance, Article 12 of Croatian
Competition Act talks about two or more legally independent economic entities holding a
joint dominant position.

[III.A.1.a] Anti-Competitive Agreement As An Economic Link

¶68. According to the ECJ, evidence of collective dominance can be collected by exploring
the “economic links or factors which give rise to a connection between the undertakings
concerned.”136 The Commission has noted that the cooperation promoted by the liner
conference which in turn is created by the parties was such that, its participants recognised

132
Id.
133
Compagnie Maritime Belge Transports v. Commission (1993) OJ L 34/20, [1995] 5 CMLR 198.
134
Compagne Maritime Belge Transports v. Commission [1997] 4 CMLR 273.
135
"Case 6-72 Europemballage Corporation and Continental Can Company Inc. v Commission of the
European Communities [1973] EU:C:1973:22, pg 223". eur-lex.europa.eu.
136
Michelin v Commission [1983] ECR 3461.

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themselves as a collective entity. This was done by setting common freight rates and other
conditions of carriage.

¶69. Likewise in the instant case, the opposite party, i.e Umbrella issues license to the
ISOs to become Authorised Service Centres on the condition that they will only service
Umbrella consoles and offer Epoc games for sale. 137 This shows a direct economic link
between the Umbrella Pvt.. Ltd. and its authorised ISOs and between various ISOs. This is
also leading to a dominance of Umbrella which is further resulting in ISOs losing their
business.138 Thus, Respondents should be held liable for the collective dominance. As the
international jurisprudence has evolved to include the concept of ‘collective dominance’ and
punishes the abuse of collective dominance, it is the perfect opportunity of the Republic of
Imarti, as acknowledged by DG,139 also recognises the concept of the same and ensures fair
and just competition in its markets.

[III.A.2] PURPOSIVE INTERPRETATION OF COMPETITION ACT.

¶70. It was held in Excel Crop Care v. Competition Commission of India, that the
mechanical or literal interpretation of the enactment of an act, which essentially defeats its
140
purpose, has not always been in the spirit of justice. The Hon’ble courts have always
implemented and embraced a purposive methodology to the interpretation of various
statues.141 It was held in Heydon142 that purposive interpretation should be adopted over the
literal approach in the case where interpretation is not in line with legislative purpose. 143 In
the case of Maunsell v. Olins144, Lord Simon145 illustrated and signified the need for the
purposive interpretation and approach towards the law. 146

¶71. In Competition Commission of India v. Steel Authority of India Limited and

another147, the Supreme Court observed that “The primary purpose of competition law is to
remedy some of those situations where the Activities of one firm or two lead to the
137
¶ 18, MOOT PROPOSITION.
138
Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
139
¶ 26, MOOT PROPOSITION.
140
Excel Crop Care v Competition Commission of India, (2017) 8 SCC 47; Royal College of Nursing
v. Department for Health and Social Security, [1981] AC 800 (Eng.).
141
Umesh Verma v. Jai Devi, AIR 1998 SC 2343.
142
Heydon (1584) 76 ER 637.
143
Km. Suman Upadhyaya And Another v. Vice-Chancellor, Bir Bahadur 2000 (2) AWC 1216.
144
Maunsell v. Olins, [1975] AC 373 (Eng.).
145
Ian McLeod, ‘Literal and Purposive Techniques of Legislative Interpretation: Some European
Community and English Common Law Perspective’ (2004) 29 Brook. J. Int'l L.
146
Maunsell v. Olins, [1975] AC 373 (Eng.).
147
Competition Commission of India v. Steel Authority of India Ltd., (2010) 10 SCC 744.

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breakdown of the free market system, or, to prevent such a breakdown by laying down rules
by which rival businesses can compete with each other.” Moreover, the Preamble of the Act
states “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.”148

¶72. Hence, the various judgements and their interpretation and intention of the Legislature
in regard to its Preamble, the Informants humbly submit to the court that using purposive
approach towards the Interpretation of Statues is more significant than drawing its literal
meaning. It is further observed that the real intent and purpose behind the enactment of the
Competition Act was to ensure a free market with fair competition. 149 Furthermore, it was to
sustain competition which comprises of protecting competitors from the unfair and abusive
practices of one or more than one enterprise active in the markets.

[III.B] THAT THE OPPOSITE PARTIES HAVE ABUSED THEIR COLLECTIVE

DOMINANT POSITION IN THE MARKET OF ISOS.

¶73. In the Report submitted by the DG, it was noted that “though the concept of collective
dominance had so far not been a part of Imarti’s competition law jurisprudence, this was an
appropriate case for the concept to be introduced, as the denial of market access to ISOs was
the result of systematic withholding by all console manufacturers of information key to the
150
servicing of consoles.” The Umbrella and other console manufacturers had entered the
market of the console manufacturers and are also present in the market for repair and
servicing of consoles. Umbrella and other console manufacturers, through its authorized
service centres had become collectively dominant in this market since they were the sole
repositories of the technical information required to sustain them in the market.

¶74. These console manufacturers, with the help of their position in one relevant market,
had abused collective dominance in the market of servicing and repair as well. This was
successfully done by cutting off access to information required to service such consoles.
Commercial conduct by all the console manufacturers had denied the ISOs access to this
151
market for service and repair. This also ensures that the competition and growth of the
servicing and repair market, which is completely different from console manufacturing, is

148
Preamble, Competition Act, 2002, No. 12, Acts of Parliament, 2003.
149
Id.
150
Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
151
Id.

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hindered.

[III.B.1] RELEVANT MARKET

¶75. The Section 19(5)152 provides that to define relevant market, its two facets need to be
established- Relevant Product Market and Relevant Geographical Market. 153 To define
relevant product market Section 19(7)154 provides certain factors such as physical
characteristics or end-use of goods; price of goods or service etc.

[III.B.1.a] Different Physical Characteristics

¶76. Gaming console manufacturers are those entities which assemble the gaming console
from scratch, by manufacturing and assembling all the parts. These entities deal only in brand
new parts and consoles. These entities are only responsible for manufacture and sale of new
consoles, that is, their job ends once the sale is done.

¶77. Service providers, on the other hand, are entities which deal with providing repair
services. These entities do not manufacture the gaming consoles from scratch rather they
repair faulty gaming consoles by fixing or replacing different parts of the console. Their job
begins only after the console has been sold.

¶78. It is an established practice to differentiate relevant product market on basis of

services offered by different products.155. In the case of Shamsher Kataria Informant v.
Honda Siel Cars India Ltd., the Commission concluded that “the automobile primary market
and the aftermarket for spare parts and repair services does not consist of a unified systems
market The Commission is of the opinion that there exist three separate relevant markets; one
for manufacture and sale of cars, another for sale of spare parts and another for 'sale of repair
services'.”156

¶79. Thus, in the current scenario, the relevant market is the sale of repair services. This
market is different for each console manufacturer as a console manufactured by Umbrella
can’t be serviced at an Authorised Service Centre of any other console manufacturer as the

152
§ 19(5), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
153
Gurgaon Institutional Welfare Association v. HUDA, 144 SCL 0498 (CCI) (2017); VE
Commercial Vehicles Ltd. v. UPSRTC, 2015 SCC OnLine Comp AT 172.
154
supra Note 74.
155
Gajinder Singh Kohli v. Genius Propbuild Pvt. Ltd., 2016 SCC OnLine CCI 41.
156
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.

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make, parts and technical knowhow is completely different, making it incompatible. The
same has been established in the case of Shamsher Kataria Informant v. Honda Siel Cars
India Ltd. 157

[III.B.1.b] Non-Substitutable (As Lack of Compatibility)

¶80. The users of the console manufactured by Umbrella and Epoc through an agreement
can be serviced and repaired only by the authorised service centres of Umbrella. This
servicing lacks interoperability between themselves and other service centres as the
information regarding the same has been withheld by Umbrella. This implies that the
servicing gaming console manufactured by a particular company cannot be repaired by any
other servicing centre. The non- substitutable character of the authorised servicing centres
ensure that the consumers get “locked-in” to a particular service centre which gives no
opportunity to the consumers.158

¶81. This practice creates low likelihood of consumer changing his preference.159

The Commission needs to consider that each OEM controls almost the entire
production and supply of spare parts which can be used in repairing and maintaining
the various brands of cars manufactured by each OEM. Due to the technical
specificity of the cars manufactured by each OEM, the spare parts of a particular
brand of an automobile cannot be used to repair and maintain cars manufactured by
another OEM. The DG, has discovered, that due to the high degree of technical
specificity even intra-brand substitutability of spare parts are greatly diminished…
Even interchangeability of spare parts within different brands of Maruti cars is
greatly limited. Since the spare parts of one OEM are not interchangeable with that
of the other, each OEM is shielded from any competitive constrains in the
aftermarket from their competitors in the primary market.160
¶82. In the instant case, it is humbly submitted that a console manufactured by Umbrella
can’t be serviced at an Authorised Service Centre of any other console manufacturer as the
make, parts and technical knowhow is completely different. Thus, making it incompatible
and thus, non-substitutable.

[III.B.1.c] SSNIP (Small But Significant And Non-Transitory Increase In Price) Test
Proves No Substitutability

¶83. This test lays down the rule that if consumer would switch to another substitute after a
small but permanent increase in price of product then such products lie in the same relevant
157
Id.
158
Eastman Kodak Co. v. Image Technical Servs, Inc., 504 U.S. 451 (1992).
159
Shri Sharad Kumar Jhunjunwala v. Union of India, 2015 CompLR 859 (CCI).
160
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.

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market.161 The Small but Significant and Non-Transitory Increase in Price (SSNIP) is taken to
be either 5 per cent or 10 per cent. Therefore, it is also known, sometimes, as 5-10 per cent
test.162

¶84. In the present case, Umbrella and other console manufacturers have entered the
markets of servicing their own consoles.163 Taking in account the SSNIP test, if the prices of
servicing gaming consoles of a particular manufacturer increase even then the customers
would be forced to get their consoles serviced at one of the Authorised Service Centres as the
console manufacturers hold complete control over the technical knowhow and servicing, at
large.

Therefore, Informants humbly submit that the appropriate relevant market in the present suit
is market of servicing and repair of consoles in Imarti.

[III.B.2] RESPONDENTS ARE COLLECTIVELY DOMINANT IN THE MARKET OF GAMING

CONSOLE REPAIR

¶85. The Informants humbly submit to the hon’ble court that the numerous sub-sections
listed in the Section 19(4)164 of the Act shows that Umbrella and other console manufacturers
have collectively acquired dominant position in the relevant market. The Article 102 165 of the
Treaty of the European Union (TFEU) states that, a dominant position is a position “to
prevent effective competition166 being maintained on the relevant market by affording it the
power to behave to an appreciable extent independently of its competitors, its customers and
ultimately of the consumers.”167This definition of “dominant position” under section 4(2) 168 is
very similar to that in Article 102 of TFEU169.

¶86. The examination of dominance by a cluster of undertakings is the same as the

examination of dominance by a single firm. There exists an assumption of collective
dominance which is backed by various factors which the Commission deliberated upon, all of
161
Belaire Owner's Association v DLF Ltd., 2011 SCC OnLine CCI 89.
162
Department of Justice and the Federal Trade Commission, US Horizontal Merger Guidelines,
1992.
163
R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012); Mahindra
& Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
164
§ 19(4)(a), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
165
TFEU art 102.
166
E.U. Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty (102
TFEU) to Abusive Exclusionary Conduct by Dominant Undertakings (the “Guidance”) 2009/C 45/02.
167
United Brands Co. v Commission 1978 ECR 207.
168
§ 4(2), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
169
TFEU art. 102.

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which are mostly reflected in cases of the single firm dominance.170

[III.B.2.a] Anti-competitive agreement acting as an economic link

¶87. The Opposite parties have entered into anti-competitive agreements which have
concluded in concerted action. This agreement led to an undue advantage and a technological
lead in the market which has led them to behave independently of their competition, their
customers and their consumers. This can be observed by the fact 171 that they later entered into
exclusive agreements with ISOs causing difficulty for their competitors as well as
consumers.172

[III.B.2.b] High cumulative market share creates a presumption of collective

dominance

¶88. The significant aspect for the existence of a dominant position is a very large market
share. This is recognised all around the world and serves as a highly important evidence for
the same.173 The Market Share174, in various judgements is considered to be integral
component in determining dominance under various laws. 175In AKZO v. Commission, it was
held that the Market share which is more than 50% of an entity creates a presumption of
dominance.176This principle has been re stated in various other cases.177

¶89. Furthermore, the hon’ble Court of Justice in Hilti v. commission178 observed that the
market shares which ranges from 70% - 80% are themselves a definite implication of the
existence of dominant position.179 In consideration of collective dominance, the Commission
observed in its TACA decision180 that “the very high collective market share of members to a
liner conference (approximately 70%) created a presumption that the undertakings were
collectively dominant.”181

170
United Brands Co. v Commission 1978 ECR 207.
171
R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012); Mahindra
& Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
172
Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
173
Hoffman-la Roche & Co v Commission [1979] ECR 461.
174
§ 19(4)(a), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
175
ABIR ROY, COMPETITION LAW IN INDIA (Eastern Law House, 2nd ed. 2014).
176
Case C-62/86 Akzo v Commission [1991] ECR-I 3359, ¶60.
177
Case C-53/92 P Hilti AG v Commission [1994] ECR I-667.
178
Case C-53/92 P Hilti AG v Commission [1994] ECR I-667.
179
Joined Cases T-191/98, T-212/98 to T-214/98 Atlantic Container Line and Others v Commission
[2003] ECR II-3275, ¶907.
180
Commission decision in Case No IV/35.134— Trans-Atlantic Conference Agreement (1998) OJ L
95.
181
Id.

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¶90. In the instant case, since only authorised service centres of Umbrella and Other
console manufacturers have access to the necessary information and technical knowhow
required to service a console182, thus, it can be safely presumed that a majority of consoles are
being serviced at these service centres. Thus, it safely creates a presumption that Umbrella
and Other console manufacturers are collectively dominant.

[III.B.2.c] Vertical integration of the enterprise

¶91. Moreover, vertical agreements183 provide the dominant firm pluses over the
competing firms. Though there is nothing unsuitable or debatable about such benefits but
their mere presence can be pertinent to the examination of dominance, as has been
established in the Abir Roy case.184 In the instant case, the presence of exclusive vertical
agreement with the ISOs satisfies this condition.185

[III.B.2.d] Dependence of consumers on the enterprise186

¶92. The nature of non-substitution leads to dependence of consumers on particular

authorised service centres. The consumers cannot switch to other non-authorised service
centres to get their consoles repaired, as the information required to service the consoles is in
exclusive possession of these Authorised Service Centres.187

¶93. It is humbly submitted before the hon’ble court that all the factors mentioned above
proves the collective dominant position of the opposite parties.

[III.B.3] RESPONDENTS HAVE ABUSED THEIR COLLECTIVELY DOMINANT POSITION

¶94. It is humbly submitted before the Hon'ble Court that Umbrella and other console
manufacturers have abused their collective dominant position. The same is achieved by an
abusive conduct under sec 4(2)(b)(ii), 4(2)(c)188 and 4(2)(e).189

182
R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012); Mahindra
& Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
183
§ 4(2)(e), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
184
ABIR ROY, COMPETITION LAW IN INDIA (Eastern Law House, 2nd ed. 2014).
185
R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012); Mahindra
& Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
186
§ 19(4)(f), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
187
R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012); Mahindra
& Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
188
§ 3, Competition Act, 2002, No. 12, Acts of Parliament, 2003.
189
§ 4(2)(e), Competition Act, 2002, No. 12, Acts of Parliament, 2003.

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[III.B.3.a] Limiting or restricting provision of services and technical development
under section 4(2)(b)

¶95. In the case of Shivam Enterprises, it was found that denying access to other
competitors from conducting business in the relevant market was in contravention of sec. 4(2)
(b)(i)190. In the instant case, Umbrella and other console manufacturers have acted against the
spirit of fair competition by taking measures to limit and restrict provision of services to the
consumers in the repair and service market of gaming consoles. They have limited
competition by restricting technical knowhow.

¶96. Section 4(2)(b)(ii)191 states that limiting or restricting scientific development relating
to goods and services is liable for abuse of dominance. In the instant case, Umbrella and other
console manufacturers have limited the technical knowhow by exclusively giving it to their
authorised service centres. Thus, limiting and restricting scientific development.

[III.B.3.b] Denial of market access by entering into exclusive agreement 192 under
4(2)(c)

¶97. It is said to be an abuse of dominant position under Sec 4(2)(c) of the Act, if entry
barriers created by the dominant enterprise, by its conduct, leads to the denial of market
access, “in any manner”. ‘Exclusive dealings’ 193 are normally defined as ‘arrangements’.
Such an arrangement requires a seller to trade all the products or services to the dominant
firm.194 The hon’ble court of justice 195 has dissuaded the exclusive purchasing commitments.

¶98. In the United States v. Microsoft Corporation196 case, Microsoft was held liable for
monopolisation as Microsoft and internet access providers entered into exclusionary
agreements197. These providers decided to not use, distribute or provide access to any Internet
browser other than IE. Similarly in the instant case, Umbrella and other console
manufacturers have entered into exclusive agreements with ISOs for exclusive repair of the

190
§ 4(2)(b)(i), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
191
§ 4(2)(b)(ii), Competition Act, 2002, No. 12, Acts of Parliament, 2003.
192
§ 3, Competition Act, 2002, No. 12, Acts of Parliament, 2003.
193
ABIR ROY, COMPETITION LAW IN INDIA (Eastern Law House, 2nd ed. 2014).
194
'Unilateral Conduct Working Group' (ICN.org, 2018)
<www.internationalcompetitionnetwork.org/wp-content/uploads/2018/09/WorkPlan2018-
21UCWG.pdf> accessed 9 January 2019.
195
Hoffman-la Roche & Co v Commission [1979] ECR 461.
196
United States v Microsoft Corporation 253 F.3d 34 (D.C. Cir. 2001).
197
Van den Bergh Foods [1998] 5 CMLR 530.

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various parts of a console.198 This act of the Opposite Parties have made sure that the repair of
the console can only take place in its authorised service centre.199

[III.B.3.c] Essential Facilities Doctorine

¶99. The ‘Essential Facilities Doctrine’ states that a monopolist has to mandatorily provide
its competitors with essential facilities under its control without which the competitor cannot
run its business effectively in the given market. In the case of Shamsher Kataria Informant
vs. Honda Siel Cars India Ltd,200 the DG noted four essential factors to be taken into account
whether spare parts, diagnostic tools, manuals etc. of each OEM would constitute essential
facilities for repairers who repair independently: “(a) control of essential facility by the
monopolist ; (b) inability to duplicate the facility ; (c) the denial of the use of facility, and (d)
the feasibility of providing the facility”.201 It was held that Essential Facilities Doctrine was
applicable to the OEMs.

¶100. In the instant case, Umbrella and other console manufacturers: (a) control the
technical knowhow required202; (b) the technical knowhow cannot be duplicated; (c)
Umbrella and other console manufacturers have denied ISOs the use of this technical
knowhow203, and (d) it is entirely feasible for Umbrella and other console manufacturers to
provide this technical knowhow since that was the standard practice previously 204. Thus, the
current scenario stands the test of four essential factors as laid down in the case of Shamsher
Kataria Informant v. Honda Siel Cars India Ltd205 and thus, the ‘Essential Facilities
Doctrine’ applies. Thus, this has led to the denial of market for the other independent service
centres.

¶101. Thus, this has led to the denial of market for the other independent service centres,
making Umbrella and other console manufacturers liable under section 4(2)(c).

198
R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012); Mahindra
& Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
199
Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
200
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.
201
Id.
202
R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012); Mahindra
& Mahindra Ltd. v. Union of India, (1979) 2 SCC 529.
203
R. WHISH AND D. BAILEY, COMPETITION LAW (Oxford University Press,7th ed. 2012).
204
¶ 8, MOOT PROPOSITION; ¶ 10, MOOT PROPOSITION.
205
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.

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[III.B.3.d] Abuse under 4(2)(e)

¶102. The tribunal in the MCX Stock Exchange case,206 observed certain pre conditions to be
guilty under sec. 4(2)(e). First is that the enterprise must have a dominant position in one
market. Second is that the enterprise must not only be related to and indulge in the market in
which it is dominant, but also the other market also. Third is that enterprise aims to enter into
an entirely new market or protect the same.

¶103. In the instant case, Opposite Parties are dealing in two different markets, first being
the market of console manufacturing where they hold a dominant position and second, related
to their authorised service centres i.e. ISOs set up by them using their dominance in the other
market. This shows that they are leveraging their position from the console manufacturing
market where they are dominant. Thus, this amounts to an abuse under sec. 4 (2)(e) of the
Competition Act.

206
MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd., 2011 SCC OnLine CCI 52.

-MEMORIAL for INFORMANTS- -ARGUMENTS ADVANCED-

 P a g e | XV
3RD TNNLU – CCI NATIONAL MOOT COURT COMPETITION, 2020

-PRAYER-

Wherefore in the light of Issues raised, arguments advanced and authorities cited, the counsel on
behalf of the pro-forma Respondents most humbly pray before this Hon’ble Commission to be
pleased to adjudge and declare that:
(1) The opposite parties engaged in an Anti-Competitive Vertical Agreement.
(2) The opposite party abused its dominant position.
(3) The opposite parties abused their collective dominance

And to pass any order or relief in favour of the Opposite Parties which this Commission may
deem fit in the larger interest of justice.

Sd/-

COUNSEL for THE INFORMANTS

-MEMORIAL for INFORMANTS- -PRAYER-