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12th NLUJ Antitrust Moot, 2021

Winner Team Memorial - Informant

BEFORE THE COMPETITION COMMISSION OF GENOVIA

UNDER
SECTION 19(1)(A) OF THE COMPETITION ACT, 2002
CASE NO. 1 OF 2021
Nikita Iyer … Informant;
Versus
Vijeta Tech Instruments Limited … Opposite Party 1;
Department of Technological Development … Opposite Party 2.
TABLE OF CONTENTS
LIST OF ABBREVIATIONS……………………………………………………………………………………………….. iv
INDEX OF AUTHORITIES………………………………………………………………………………………………… vi
STATEMENT OF JURISDICTION……………………………………………………………………………………… xii
STATEMENT OF FACTS………………………………………………………………………………………………… xiii
ISSUES FOR CONSIDERATION……………………………………………………………………………………….. xvi
SUMMARY OF ARGUMENTS…………………………………………………………………………………………. xvii
WRITTEN ARGUMENTS…………………………………………………………………………………………………… 2
ISSUE I : WHETHER VIJETA HAS CONTRAVENED SECTION 3(4) READ WITH SECTION 3(1) 2
OF THE ACT?………………………………………………………………………………….
[I.A] Vijeta falls within the ambit of ‘enterprise or person’ of Section 2(h).……………….. 2
[I.B] There is a vertical agreement in the manner of tie-in, exclusive dealing and RPM. 3
[I.C] The restraint imposed by the vertical agreements cause AAEC…………………………… 9
ISSUE II : WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER SECTION 4(2) 13
OF THE ACT?…………………………………………………………………..
[II.A] Dominance is sought to be established in the defined relevant market. …………….. 13
[II.B] Vijeta enjoysa position ofdominanceintherelevant market…………………………… 15
[II.C] Vijeta has abused itsdominant position………………………………………………………….. 18
ISSUE III : WHETHER DOTD HAS CONTRAVENED THE PROVISIONS UNDER SECTION 4(2) 25
OF THE ACT?………………………………………………………………………………..
[III.A] DOTD is an enterprise…………………………………………………………………………………. 25
[III.B] DOTD is dominant in its relevant market………………………………………………………. 28
[III.C] DOTD uses the dominant position to abuse the market.…………………………………. 31
PRAYER……………………………………………………………………………………………………………………….. 35
LIST OF ABBREVIATIONS
ABBREVIATIONS FULL FORM
& And
§ Section
¶ Paragraph
AAEC Appreciable Adverse Effect on Competition
AIR All India Reporter
Anr. Another
App Application
CCI Competition Commission of India
CCG Competition Commission of Genovia
CompAT Competition Appellate Tribunal
CompLR Company Law Reporter
DOTD Department of Technological Development
ECR European Court Reports
Ed. Edition
EU European Union
Inc. Incorporation
In Re In Reference
IT Information Technology
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Ltd. Limited
MNC Multi-National Corporation
NCLAT National Company Law Appellate Tribunal
No. Number
OEM Original Equipment Manufacturer
OP Opposite Party
Ors. Others
Para Paragraph
Pg. Page
RPM Resale Price Maintenance
PSU Public Sector Undertaking
Pvt. Private
SC Supreme Court
SCC Supreme Court Cases
TFEU Treaty on the Functioning of the European Union
UOI Union of India
U.S United States
v. Versus
Vijeta Vijeta Tech Instruments Limited
Vol. Volume
INDEX OF AUTHORITIES
[I] INDIAN CASES
1. All India Tyre Dealers' Federation v. Tyre Manufacturers, 2013 Comp LR 92 (CCI); Builders 18
Association of India v. Cement Manufacturers' Association, 2016 Comp LR 983 (CCI)
……………………………………………………………………………………………………………………….
2. Arshiya Rail Infrastructure Limited v. Ministry of Railways, (2013) 112 CLA 297 (CCI). 47
3. Belaire Owners' Association v. DLF Ltd Haryana Urban Development Authority Department 32, 34
of Town and Country Planning, State of Haryana, 2011 Comp LR 239 (CCI).
………………………………………………………………………………………………………………………….
4. Bharti Airtel Limited v. Reliance Industries Limited& Reliance Jio Infocomm Limited, 2017 36
Comp LR 723 (CCI).………………………………………………………………………………………….
5. CCI v. Co-ordination Committee of Artists and Technicians of WB Film and Television, AIR 29
2017 SC 1449.………………………………………………………………………………………………….
6. CCI v. Fast Way Transmission Pvt. Ltd., (2018) 4 SCC 316……………………… 37
7. Cine Prakashakula Viniyoga Darula Sangham v. Hindustan Coca Cola Beverages Pvt. Ltd., 47
Case No. UTPE 99/2009 and RTPE-16/2009 (CCI)…………………..
8. Coal India Ltd (CIL) and Gujarat State Electricity Corp Ltd v. South Eastern Coalfields Ltd 31
and Coal India Ltd, 2013 Comp LR 910 (CCI).……………………………………………………
9. Competition Commission of India v. Co-ordination Committee of Artists, (2017) 5 SCC 44
17…………………………………………………………………………………………………………………
10. Dhanraj Pillay v. Hockey India, (2013) Comp LR 543 (CCI).……………………….. 49
11. Director General (Supplies and Disposals) v. Puja Enterprises Basti, 2013 Comp LR 714 18
(CCI)………………………………………………………………………………………………………………..
12. DLF Limited v. Competition Commission of India, 2014 Comp LR 1 (CompAT). 48
………………………………………………………………………………………………………………………………
13. Eli Lilly and Company Lilly Corporate Centre v. Competition Commission of India, Case No. 43
03 of 2017…………………………………………………………………………………………………
14. Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India Limited, 2017 SCC OnLine 18, 23,
CCI 26.………………………………………………………………………………….. 24, 25,
26, 27
15. Global Tax Free Traders v. William Grant & Sons Limited, 2015 Comp LR 503 (CompAT) 44
……………………………………………………………………………………………………………….
16. Harshita Chawla v. WhatsApp Inc., [2020] 161 SCL 131 (CCI…………………………….. 49, 50
17. HMM Ltd v. Director General, Monopolies and Restrictive Trade Practices Commission, 34
(1998) 6 SCC 485…………………………………………………………………………………………………….
18. HPCL-Mittal Pipelines Limited v. Gujarat Energy Transmission Corporation Limited, 2018 48
Comp LR 215 (CCI).…………………………………………………………………………………………
19. HT Media Ltd v. Super Cassettes Industries Ltd, 2014 Comp LR 129 (CCI)………………. 32
20. In Re : A resident of Eldeco Elegance and Eldeco Housing and Industries Ltd. Eldeco 45
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Corporate Chamber I, SCC OnLine CCI 66……………………………………………………………….

21. In Re : Meru Travel Solutions Pvt Ltd, Case Nos 25-28 of 2017 [CCI]……………………….. 32
22. In Re : Vinod Kumar Gupta and WhatsApp Inc., Case No. 99 of 2016 [CCI].……………… 30
23. JSW Paints Private Limited v. Asian Paints Limited, [2020] 158 SCL 720 (CCI)……….. 26
24. Jupiter Gaming Solutions Private Limited v. Government of Goa, (2012) 106 CLA 339 48
(CCI).………………………………………………………………………………………………………..
25. Kapoor Glass Pvt Ltd v. CCI through its Secretary &Schott Glass India Pvt Ltd, 2014 Comp 39
LR 295………………………………………………………………………………………………………….
26. Maharashtra State Power Generation Co Ltd (MAHAGENCO) v. Mahanadi Coalfields Ltd 31
(MCL), 2017 Comp LR 525 (CCI)……………………………………………………………………….
27. Manju Tharad v. Eastern India Motion Picture Association, Kolkata, (2012) 110 CLA 136 42
(CCI).……………………………………………………………………………………………………….
28. Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale, AIR 1995 SC 1102………………………… 42
29. [Link] Limited v. Google LLC, 2018 Comp LR 101 (CCI)……………………………. 49
30. MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd. &Dot Ex International 36
Ltd., 2011 Comp LR 129 (CCI).……………………………………………………………….
31. MDD Medical Systems India Private Limited v. Foundation for Common Cause & 19
People……………………………………………………………………………………………………………………..
32. Meru Travels Solutions Private Limited v. Competition Commission of India, 2017 Comp LR 47
43 (CompAT)……………………………………………………………………………………
33. Prakashakula Viniyoga Darula Sangham v. Hindustan Coca Cola Beverages Pvt. Ltd., 33
[2011] CCI 26………………………………………………………………………………………………………….
34. Rajat Verma v. Public Works(B and R) Department, [2015] 130 SCL 1 (CCI). …………… 43
35. Reliance Big Entertainment Limited v. Karnataka Film Chamber of Commerce, 2012 CompL 42
269 (CCI)……………………………………………………………………………………………………..
36. RKG Hospitalities Pvt. Ltd. v. Oravel Stays Pvt. Ltd., Case No. 03 of 2019 (CCI)………..
46
37. Sai Wardha Power Company Ltd. v. Western Coalfields Ltd., 2014 Comp LR 265………. 29
38. Samir Agrawal v. ANI Technologies Pvt. Ltd, 2018 Comp LR 1114 (CCI).………………… 18
39. Samir Agrawal v. Uber India Systems Pvt. Ltd., 2018 SCC OnLine CCI 86. …………. 23, 27
40. Shailesh Kumar v. Tata Chemicals Limited, Case No. 66 of 2011 (CCI)…………………….. 19
41. Shamsher Kataria v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI). 19, 23,
26, 30,
32, 34,
35, 37,
46
42. Shivam Enterprises v. Kiratpur Sahib Truck Operators Co-op Transport Society Ltd, 2015 35, 37
Comp LR 232 (CCI)……………………………………………………………………………………………
43. Shri Ganshyam Dass Vij v. Bajaj Corp. Ltd., [2015] CCI 155……………………………………. 25
44. Shubham Sanitary wares v. Hindustan Sanitary wares& Industries Ltd., 2014 Comp LR 258 24
(CCI)………………………………………………………………………………………………………………..
45. Sonam Sharma v. Apple Inc., 2013 Comp LR 346 (CCI)………………………………………….. 21
46. Sunil Bansal v. Jaiprakash Associates Ltd, 2015 Comp LR 1009 (CCI). 29, 44,
48
47. Surinder Singh Barmi v. Board of Control for Cricket in India, (2013) 113 CLA 579 (CCI) 42
……………………………………………………………………………………………………………………….
48. Tamil Nadu Consumer Products Distributors Association v. Fangs Technology Pvt Ltd, Case 30
No. 15 of 2008 [CCI] ……………………………………………………………………………………
49. Tata Engineering and Locomotive Co. Ltd v. Registrar of Restrictive Trade Agreement, 25
(1977) 47 Comp Cas 520 SC.……………………………………………………………………………………
50. Technip SA v. SMS Holding Pvt. Ltd., (2005) 5 SCC 465…………………………………………. 18
51. The National Stock Exchange of India Ltd v. CCI, 2014 Comp LR 304……………………… 33
52. Union of India v. Competition Commission India, (2012) 3 Comp LJ 303 (Del). ………….. 43
53. Vijay Gopal v. Inox Leisure Limited and Hindustan Coca-Cola Beverages Private Limited, 20, 22
2019 SCC OnLine CCI 4……………………………………………………………………….
54. Vinod Kumar Gupta v. WhatsAppInc, 2017 Comp LR 495 (CCI)………………………………… 45
55. XYZ v. Alphabet Inc., 2020 SCC OnLine CCI 4……………………………………………………….. 38
[II] FOREIGN CASES
1. Anheuser-Busch Incorporated/Scottish & Newcastle OJ, [2000] 5 CMLR 75 …………….. 18
2. British Horseracing Board v. Victor Chandler International, [2005] EWHC 1074 (Ch). . 35
3. Centre Belged'Etudes du Marche Telemarketing v. Compagnie Luxembourgeoise de 40
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Telediffusion SA and Information Publicite Benelux SA, (198) ECR 3261………………….

4. Eastman Kodak Co. v. Image Tech. Servs., 504 US 451 (1992), 112 [Link]. 2072 (1992). 30
………
5. Englander Motors, Inc. v. Ford Motor Co, 267 F.2d 11……………………………………………… 23
6. Europemballage Corp. & Continental Can Co. Inc. v. Commission, (1973) ECR 215….. 29
7. Fortner Enterprises Inc v. United States Steel Corp ET AL, (1969) 394 US 495………….. 21
8. Fresh Del Monte Produce, Inc. v. Internationale Frunchtimport Gesellschaft Weichert… 25
9. Hoffmann-La Roche & Co. v. Commission, (1979) ECR 461……………………………….. 29, 36
10. Masterfoods Ltd v. HB Ice Cream Ltd, (2000) 1 ECR 11369…………………………………….. 38
11. Microsoft Corp v. Commission, (2007) 2 ECR 3601………………………………………………… 39
12. Nat'l Soc'y of Prof'l Eng's v. United States, 435 US 679 (1978)……………………………….. 21
13. Northern Pacific R Co v. United States, 356 US 1 (1958).…………………………………………. 21
14. Suiker Unie v. Commission, (1975) ECR 1663…………………………………………………………. 35
15. Tetra Pak International SA v. Commission of the European Communities, (1966) 1 ECR 29
05951………………………………………………………………………………………………………………………
16. Tetra Pak International SA v. Commission, (1994) 2 ECR 00755.……………………………….. 36
17. U.S. v. Griffith, 334 US 100 (1948)………………………………………………………………………….. 24
18. United Brands Co and United Brands Continental BV v. Commission, 21 Comm. Mkt. L.R. 35
429 (1978).………………………………………………………………………………………………………
19. United States v. E.I. du Pont de Nemours &Co., 351 US 377 (1956)…………………………………….. 29
[III] STATUTES
1. The Competition Act, 2002.
2. Treaty on the Functioning of the European Union.
3. Clayton Antitrust Act, 1914.
4. Monopolies and Restrictive Trade Practices Act, 1969.
[IV] JOURNALS AND REPORTS
1. Adi Ayal, Monopolization Via Voluntary Network Effects, 76 Antitrust Law Journal, 799-822 (2010).
2. European Commission Guidelines on Vertical Restraints, Official Journal of the European Union,
(2010/C130/01).
3 European Commission, E.U. Guidance on the Commission's Enforcement Priorities in Applying Article 82
EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings (the “Guidance”), Official Journal
of the European Union (2009).
4 J Dianne Brinson, Proof of Economic power in a Sherman Act Tying Arrangement Case : Should
Economic Power be Presumed When the Tying Product is Patented or Copyrighted?, 48 LA L REV 29
(1987).
5 Louis Kaplow, The Meaning of Vertical Agreement and Structure of Competition Law, 80 Antitrust Law
Journal 563 (2016).
6 Office of Fair Trading, Market Definition : Understanding Competition Law, Competition Law Guideline
(2004).
7 Raghavan Committee Report : State Monopolies Policy.
8 Richard A. Posner & William M. Landes, Market Power in Antitrust Cases, 94 Harvard Law Review 937
(1980).
[V] BOOKS
1. Abir Roy & Jayant Kumar, Competition Law in India (2nd ed. 2014).
2. Alison Jones & Brenda Suffrin, EU Competition Law : Text, Cases and Materials 458 (4th ed. 2014).
3. Economic Commission for Latin America and the Caribbean, 2018, Data, Algorithms and Policies :
Redefining the Digital World (United Nations Publication, Santiago).
4. Jonathan Faull & Ali Nikpay, The EU Law of Competition, (3rd ed. 2014).
5 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law 4 (3d ed. 2010).
6. R Whish and D Bailey, Competition Law 104 (8th ed. 2015).
7. S.M. Dugar, Guide to Competition Law 423 (6th ed. 2016).
STATEMENT OF JURISDICTION
The Informant has invoked the jurisdiction of this Hon'ble Commission under Section 19(1)(a) of the
Genovia Competition Act, 2002.
Section 19(1) of the Competition Act, 2002 reads as follows:
19. (1) The Commission may inquire into any alleged contravention of the provisions contained in
subsection (1) of section 3 or sub-section (1) of section 4 either on its own motion or on—
(a) receipt of any information, in such manner and] accompanied by such fee as may be determined by
regulations, from any person, consumer or their association or trade association; or
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(b) a reference made to it by the Central Government or a State Government or a statutory authority.
STATEMENT OF FACTS
BACKGROUND
Genovia is a democratic country in Southern Asia that gained its independence in the 1940s. Years later,
Genovia underwent an economic liberalization and lifted restrictions to welcome the entry of MNC's and
foreign investments in non-strategic sectors of the economy. Panem, a neighboring country was the prime
trade centre and emerged to be a Tech leader in the Eastern world. Panamese products dominated the
markets of computers and smart-phones across the South and South-East Asian continent, including
Genovia. Five years ago, Genovia and Panem severed ties due to border skirmishes which resulted in a trade
war began between the two countries, wherein they increased tariffs on imports of certain goods. In light of
this, the Genovian government decided to become self-reliant in the field of electronics and IT. This gave rise
to policy changes and the government introduced schemes to promote domestic industries like “Swatantra
2.0” and “Generate in Genovia”.
DEPARTMENT OF TECHNOLOGICAL DEVELOPMENT
The Genovian Ministry of Electronics and IT, with the goal of promoting domestic electronics and IT
industries, set up the Department of Technological Development (“DOTD”) in 2016. The objectives of DOTD
are to formulate schemes, policies and programs to aid in making Genovia self-reliant.
VIJETA TECH INSTRUMENTS LIMITED
By the recommendation of DOTD to further develop the local IT industry, the government setup a
statutory cooperation named Vijeta Tech Instruments Limited (“Vijeta”). The statutory corporation was fully
funded by the government and had the authority to appoint the Board of Directors. Vijeta began with the
assembly of smartphones for big MNCs like Frapple, where they built, tested and delivered smartphones and
provided aftermarket services.
The government soon began to invest heavily in Vijeta's research and development activities to aid Vijeta
in producing its own products. In 2018, Vijeta introduced a line of devices under the brand name, ‘Mango’.
These phones belonged to a high quality low cost flagship killer smartphone category. The phones were
widely promoted by Central Ministers, thus helping in building brand value. Though the phones were
affordable, the accessories, spare parts and after-sales services were very expensive, as compared to the
other products in the market. The mobile phones are distributed through an omni-channel system where,
Vijeta sold through self-owned stores called the ‘Mango Tree’ franchisees and multi-brand outlets. In order to
maintain consistency in quality, Vijeta maintained uniform rates through all channels of distribution, and
provided franchise and multi brand outlets a list for recommended discounts (this contained upper limits of
discounts). Several media reports stated such nonadherence to discount limits resulted in unilateral
termination of the agreement by Vijeta. Vijeta sought to maintain exclusivity of its products. It barred
consumers from using other brand accessories and spare parts of the phones or servicing their phones at
stores other than its authorised stores and the warranty of the production was conditional on this criteria.
Similarly, it prevented its distributors to sell products of other brands. In 2019, Vijeta invested in a software
application called the ‘Offix’ that provided for a wide range of services like document editing and note taking.
As a promotional scheme, Vijeta provided the application for free on all Mango phones for twelve months. At
the time of entry of Offix, market leaders like Macrosoft and Froogle had already a market share of 45% and
31% respectively, despite which Vijeta gained a subscription base of 32% within six months of entry.
PRESENT MATTER
Vijeta has been under the scrutiny of the public eye for various reasons. Vijeta's agreements with
suppliers and conditions imposed in the smartphone product market were widely frowned upon. Similarly,
claims that Vijeta indulged in unfair practices in the Offix product market were doing the rounds.
DOTD has also been questioned for providing instructions to Vijeta to only pre-install Genovian
applications and provide suggestions of only Genovian applications on the app store. This is debated to be a
part of the DOTD's goal to promote the IT industry. In furtherance to this, the informant, Nikita approached
the Competition Commission of Genovia (“CCG”) and held that Vijeta and DOTD through the policies and
practices adopted in regard to the applications and Mango phones are in contravention of Sections 3 and 4 of
the Competition Act. The CCG has decided to hold a preliminary conference to hear both parties in this
matter.
ISSUES FOR CONSIDERATION
ISSUE I : WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER SECTION 3(4) READ
WITH 3(1) OF THE ACT?
ISSUE II : WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER SECTION 4(2) OF THE
ACT?
ISSUE III : WHETHER DOTD HAS CONTRAVENED THE PROVISIONS UNDER SECTION 4(2) OF THE
ACT?
SUMMARY OF ARGUMENTS
ISSUE I : WHETHER VIJETA HAS CONTRAVENED SECTION 3(4) READ WITH SECTION 3(1) OF THE
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ACT?
It is contended that Vijeta, by virtue of being an enterprise, has contravened the provisions of Section 3
(4) read with Section 3(1) of the Competition Act, 2002 as there exists a vertical agreement in the form of
tie-in, exclusive dealing and resale price maintenance between Vijeta and its authorised dealers that has
caused appreciable adverse effect on competition prevalent in the market. Such an arrangement is proved
through circumstantial evidence. The agreement qualifies all essentials of Section 3(4) of the Act and thus
falls within the ambit of the provision. Vijeta has mandated the purchase of its aftermarket products along
with its primary product of Mango smartphones, thus resulting in a tie-in arrangement as under Section 3(4)
(a) of the Act. The restriction imposed by Vijeta on the authorised dealers has also formed an exclusive
supply agreement. Additionally, Vijeta has by conduct mandated adherence to discount limits, failure of
which led to unilateral termination of its agreement with its distributors, thus giving rise to a resale price
maintenance agreement. Further, these agreements have caused a negative appreciable adverse effect on
the competition as it results in exploitation of consumers and exclusion of competitors in the market.
Further, these agreements possess the tendency to drive existing competitors and foreclose competitors by
hindering entry into the market. The agreements have certain unfair conditions that have a negative impact
on the intra-brand competition. In the present case, one such condition has paved way for Vijeta to unjustly
enjoy a monopolistic position in its aftermarket. It is thus humbly submitted that Vijeta's agreements with
its distributors are anti-competitive in nature and have a negative adverse effect on the competition, thus
contravening Section 3(4) read along with Section 3(1) of the Act.
ISSUE II : WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER SECTION 4(2) OF THE
ACT?
It is contended that Vijeta operates in a defined relevant product market, has acquired a dominant
position in the defined relevant markets and has abused its dominant position in the market thereof. Vijeta
operates in three distinct markets - Mango smart phone (primary product), aftermarket that consists of
accessories and spare parts market and the after-sale service market (market secondary to the smartphone
market), and Offix Application product. These markets have been distinguished on the basis of factors that
the CCI considers for the same. Vijeta enjoys dominance in each of these markets as it possess the ability to
operate independently of the competitive forces and the ability to influence its consumers and competitors.
Vijeta enjoys a dominant position by virtue of being a public sector undertaking. Further, it also enjoys
monopoly by imposing unfair conditions and has ensured high level of consumer dependence. It is able to
enforce vertical integration, thus signifying dominance. Vijeta has imposed unfair conditions and also has
undertaken an unfair pricing policy that includes excessive pricing of its aftermarket products as well as
predatory pricing in the App market, thus resulting in contravention of Section 4(2)(a) which further violates
Section 4(2)(c) of the Act. The warranty condition that Vijeta has imposed is not only unfair but also
excludes competition. Further, pre-installation of Offix App in the Mango smartphones is a blatant violation of
Section 4(2)(c) as its results in denial of market. Vijeta has also imposed certain irrelevant supplementary
conditions that ties unnecessary products it deals with, thus abusing its dominance. It has also exploited
dominance in one relevant market to enter into another. It is thus humbly submitted that Vijeta has
contravened Section 4(2) of the Act.
ISSUE III : WHETHER DOTD HAS CONTRAVENED SECTION 4(2) OF THE ACT?
It is contended that DOTD is an enterprise under Section 2(h) of the Act and has a dominant position in
the market and has abused its dominant position thereof. DOTD is a government department that falls under
the definition of an enterprise and possesses no sovereign power to be classified as an exception in lieu of
the Competition Act. DOTD is the controller of products and is in charge of formulating policies and schemes
for promotion that will affect the product consumed and supplied in the market. Functions of DOTD pertain to
the control and regulation of goods in the market of commercial entities, thus falling under non-sovereign
functions. DOTD was created with purpose of promoting domestic electronic and IT market in Genovia.
Hence, Genovia is the delineated relevant geographic market. DOTD possesses the power to formulate
schemes, policies and programmes to make Genovia a tech leader in the world. It is thus is unaffected by
any market force and has no reliance of any supplier or consumer in the relevant market. DOTD has abused
its dominant position by instructing Vijeta to install only Genovian apps, thus giving rise to differential
treatment of app developers that do not originate in Genovia. It acts as a condition on purchasers of the
Mango smartphone as it requires them to purchase the phone along with pre-installed Genovian apps, thus
contravening Section 4(2)(a) of the Act. This instruction has also resulted in the denial of market access to
other app developers as they are not allowed to pre-install their apps. It is thus humbly submitted that
DOTD has abused its dominance to impose discriminatory conditions against non-Genovian creators and
developers which deny them market access, thus contravening Section 4(2) of the Act.
WRITTEN ARGUMENTS
ISSUE I : WHETHER VIJETA HAS CONTRAVENED SECTION 3(4) READ WITH SECTION 3(1) OF THE
ACT?
1. It is contended that the vertical agreements between Vijeta and its authorised dealers have violated
the provisions of Section 3(4)(e) read with Section 3(1) of the Act as [I.A]Vijeta falls within the purview of
‘enterprise’ as per Section 2(h) of the Competition Act, 2002 (hereinafter, the Act) [I.B]there is a vertical
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agreement in the manner of tie-in, exclusive dealing and resale price maintenance (hereinafter, RPM)
between Vijeta and its authorised dealers [I.C] the restraints imposed by the agreement causes Appreciable
Adverse Effect on Competition (hereinafter, AAEC).
[I.A] Vijeta falls within the ambit of ‘enterprise or person’ of Section 2(h).
2. Section 3(1) prohibits anti-competitive agreements amongst enterprises. An enterprise includes any
person or a department of the government, engaged in any activity relating to the production, distribution
etc. goods or services.1 A person has been defined to include any corporation established by or under any
2
Central, State or Provincial Act.
3. In the instant case, Vijeta is a statutory corporation that manufactures its own line of devices under the
3
brand name ‘Mango’. It is thus submitted that Vijeta is a statutory corporation engaged in economic activity
and falls within the purview of an enterprise as provided under Section 2(h).
[I.B] There is a vertical agreement in the manner of tie-in, exclusive dealing and RPM
4. It is contended that [I.A.1] there exists an agreement between Vijeta and its authorised dealers and
[I.A.2] the agreement falls within the ambit of vertical agreement under Section 3(4) of the Act.
[I.B.1] There exists an agreement between Vijeta and their authorised dealers.
5. The existence of an agreement, understanding or arrangement, demonstrating the meeting of minds is
4
a sine qua non for establishing contravention under Section 3 of Act. An agreement as under Section 2(b) of
the Act does not only include an agreement but includes any arrangement, understanding or action in
concert however so informal,5 regardless of whether it did not intend to create any legally enforceable mutual
6 7
duties and liabilities. An agreement can be inferred from the intention or coercive conduct of the parties,
when the level of coercion exerted to impose an apparent unilateral policy, considering several distributors
implementing the policy would amount to tacit acquiescence to form an agreement as per the Act.8
9
6. Guidelines, circulars, warnings sent by the manufacturer to its dealers could amount to the existence
of an agreement between them if the actions and indications by the surrounding circumstances are
sufficient,10 like inducing compliance due to the implied or express threat of termination.11
7. Distinct and direct evidence are very rare in cases of anti-competitive agreement due to which
circumstantial evidence are considered and the standard of proof in determining the presence of such
agreement or concerted practices is the preponderance of probabilities.12 The actions of the parties must be
considered by reading between the lines not only of sentences and words but also of actions in various
13
contexts. The circumstantial evidence is tested on the preponderance of probability as to whether ‘but for
such an agreement’ such appreciable effects on the competition would have or likely to have been caused.14
8. In the present matter, there exists an agreement between Vijeta and its authorized dealers to maintain
uniform pricing15 and exclusivity of the Mango brand and the sale and purchase of its products and
16
accessories. Although there is an absence of express agreements providing for such restrictions, the
actions and conduct of Vijeta surrounding the agreement such as the unilateral termination, withholding of
promotional discounts, revoking dealership agreements and imposing a penalty forms circumstantial
evidence surrounding the agreements and its implementation indicates the existence of vertical agreements
under Section 3(4). Accordingly, it is submitted that there exists agreements between Vijeta and its
authorised dealers.
[I.B.2] The agreement falls within the ambit of vertical agreement under Section 3(4).
17
9. There are certain pre-requites that need to be satisfied for the prima facie violation of Section 3(4) of
the Act:
a. Existence of an agreement;
b. Between ‘enterprise’ or ‘person’;
c. Engaged in different stages of the production chain in different markets;
d. The agreement should under Section 3(4);
e. The agreement should cause or should be likely to cause AAEC.
10. It is humbly submitted that there exists an agreement between Vijeta and its authorised dealers. The
agreement is between an enterprise and person at different levels of the production chain in a different
market. However, any agreement will be regarded as anti-competitive when such an agreement falls under
sub-section (4).
11. It is contended that the restrictions imposed by Vijeta through the agreements on its authorised
dealers forms a [I.B.2.i] Tie-in arrangement under Section 3(4)(a), [[Link]] Exclusive supply agreement
under Section 3(4)(b) and [[Link]] RPM under Section 3(4)(e).
[I.B.2.i] There is a Tie-in arrangement concerning Mango smartphones, its accessories and after-
sales services.
12. A tying arrangement in Anti-trust law refers to an arrangement wherein the seller conditions the sale
of a desirable product upon the sale of an undesirable product thereby abusing the need of a consumer for
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the desired product to facilitate sales of the not so desirable one.18 The arrangement may be a result of a
19
contractual or technological requirement.
13. A tie in arrangement would be anti-competitive on proving that the products involved in the
arrangement are separate and distinct items, seller has sufficient market or economic power concerning the
tying product to appreciably restrain free competition in the market for the tied product, and effect of it must
20
be substantial. Sufficient market power exists with the seller when the seller is in a position to either
successfully raise prices or impose other burdensome terms such as a tie-in, concerning any appreciable
number of buyers within the market.21 Unreasonableness of such an agreement is taken into consideration to
22
interpret such an agreement. Requiring the buyers of cars to pay towards after-sales service, tying-up post
-warranty sales with products, forcing to purchase locks, helmets and other accessories along with a scooter
are examples of a tie-in arrangement.23
14. In the present matter, although Vijeta's market share in the initial stages was insignificant, it has
been rising at a rapid rate because of which incumbent players in the market has suffered significant losses
thereby showing that Vijeta has significant market power. The Mango smartphones are sold at competitive
prices, but the price of after-sales services and accessories are much expensive and unjustified by its quality
driving the consumers in opting to purchase the products for their phones from other sellers dealing in
generic products. Vijeta voids the warranty of where non-Mango branded accessories has been used and
similarly, doesn't recognise its warranty obligation for Mango products that have been serviced at any shop
other than Mango Tree stores. By these indirect methods of ‘full line forcing’, i.e., when the buyer of the
product is coerced by his supplier to buy and avails the complete range of his products even if he doesn't
desire so forces the customer to buy both from Mango Tree stores. Thus, it submitted that there exists a tie
in arrangement entered in by Vijeta under Section 3(4)(a).
[[Link]] There is an exclusive supply arrangement.
15. Any agreement which restricts the purchaser of goods in the course of trade from acquiring or
otherwise dealing in any goods other than those of the seller forms an exclusive supply agreement under
Section 3(4)(b). Any supplier having substantial market power entering into an exclusive supply agreement
with the purchaser to create any barrier to entry for other suppliers, then such an agreement can be
24
considered exclusionary and anti-competitive. A type of exclusive supply arrangements is by which the
manufacturer may require its dealers to purchase goods' exclusively from him, and restrain from dealing in
competitors' products.25 The arrangement need not be formal or written, it could be oral or when the
26
manufacturer enforces such dealing under threat that the dealership would be cancelled.
16. The agreement between the automobile manufacturers and their authorized dealers which prevented
the latter from procuring spare parts from anyone other than the manufactures was held as an
27 28
anticompetitive exclusive supply and refusal to deal agreement, even if its franchise agreement. .
17. In the present matter, to maintain the exclusivity of the Mango brand, Vijeta restricts its authorized
dealers from selling any accessories manufactured by others.29 This condition is imposed through a threat of
30
revocation of their dealership agreement and imposition of penalty. Thus, it is submitted that there is an
exclusive supply agreement.
[[Link]] There is a Vertical Agreement in the Manner of RPM.
1. RPM is an agreement wherein the price to be charged on resale by the purchaser would be stipulated
by the seller.31 It is an agreement with the direct or indirect object in the establishment of a fixed or
32 33
minimum resale price level, whether intentional or unintentional will amount to RPM. It includes
agreements involving a discount control mechanism by which the manufacturer sets a maximum permissible
limit which is allowed and not above that recommended range.34 For instance, an agreement which placed
maximum permissible discount that may be given by a dealer to the end-consumer and the dealers were
35
penalized on account of any deviation of this condition.
2. Recommendation of discount limits and forcibly implementing them through threats of sanctions, loss
of supply and termination may be construed as an anticompetitive,36 and such recommendations would
defeat any positive aspect of such restriction.
3. In the present matter, Vijeta circulates a recommended discount list to authorised dealers which
prescribe upper limits of the permissible discount rate.37 Although it's not mandated, the non-adherence to
38
the condition may result in unilateral termination of the supply agreements by Vijeta. Thus, imposing
recommended discounts accompanied by threat of termination would result in the stipulation of the price by
the seller resulting in RPM.
[I.C] The restraint imposed by the vertical agreements cause AAEC
4. To establish a contravention under Section 3, it is quintessential to establish that the alleged anti-
competitive agreement caused AAEC. Whether and to what extent such AAEC occurs is only relevant in the
39
determination of the quantum of penalty and assessing a damage claim. It is contended that under the
rule of reason approach,40 AAEC is caused in the market of smartphones and its accessories by [I.C.1] tie-in
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arrangement, [I.C.2]exclusive supply agreement and, [I.C.3] RPM.

[I.C.1] Tie-in arrangement causes AAEC
5. Tie in arrangements is condemned primarily because of the exploitation of consumers and the
41
foreclosure of market to the other competitors. Such an arrangement deprives the buyers of choice and
opportunity to select the ‘best bargain’ in the tied product market which would have been available in the
absence of tying, and the other sellers of the tied product are deprived of the opportunity to compete with
the tying seller's tied product.42 If the tied product is an important complementary product for customers
the tying product, reduction of alternate suppliers and reduced availability of product can make entry into
43
the market alone more difficult.
6. In the present matter, there is an indirect mandate for buyers to purchase any accessories and get
after-sales service from exclusive Mango Tree stores, and the nonadherence to it would devoid its warranty
agreement putting the buyers at a disadvantageous position. Such an agreement restricts the dealers from
dealing with other products and drives the existing competitors. Hence, it is submitted that the tie-in
arrangement would cause substantial negative effects on competition.
[I.C.2] Exclusive supply agreement causes AAEC
7. When a manufacturer indulges in exclusive dealing the competitors in the same market are prevented
access to the market and the dealers are denied the freedom to handle competing products.44 Such an
agreement would foreclose any competition and the continuation of it may create barriers to new entrants in
45
the market causing an adverse effect on intra-brand competition. Using threats of discontinuation of supply
is in the nature of exclusive supply.46 The agreement was held to be anticompetitive as it required the
dealers to source parts only from the suppliers which allowed the suppliers to become monopolistic players in
47
the aftermarkets of their product and thus create barriers.
8. In the present matter, the exclusive dealing agreement between Vijeta and its authorized dealers
restricts the dealers from carrying out sale of accessories of non-Mango products. The agreement restricts
the dealers from dealing in goods other than of Vijeta and this results in driving out the existing competitors
and foreclosing the competition by imposing unreasonable conditions. Similarly, restricting the supply of the
dealers through the exclusive dealing agreement would not accrue any benefit to the consumers as it
deprives the dealers from dealing in any other product and would be forced to recommend only Mango
products regardless of their high price and low quality.
[I.C.3] RPM agreement causes AAEC
9. The authorized dealers decide the sale price. However, they are indirectly compelled to offer the price
stipulated by seller by imposing a recommended range of discount, containing an upper limit, it may offer
the customers. These conditions indirectly restrict the dealers from offering better terms to the consumers
and such an agreement adversely affects consumers by restricting the amount of discount that could be
offered by distributors.
10. RPM agreement eliminates intra-brand competition in a market. When a minimum RPM is imposed by
the manufacturer of a particular brand, distributors are prevented from decreasing the sale prices and
doesn't pave way for effective competition. The stifling of intra-brand competition results in higher prices
48
which detrimentally affects the ultimate consumer.
11. Further, RPM has the effect of reducing inter-brand price competition because preventing price
competition on a popular brand would result in higher prices of competing brands as well, including those
that have not adopted RPM creating barriers to the new entrants in the market and driving out existing
competitors.49
12. Fixing a minimum resale price would allow distributors with larger market power to drive small
dealers out of the business who are unable offer greater discounts in place of lower quality pre-sale and post-
sale services. Now, with the RPM, these small distributors may not be able to compete on the same level as
the large distributors, thus foreclosing the market. By preventing price competition between different
distributors, RPM may prevent more efficient retailers from entering the market which reduces dynamism
and innovation at the distribution level.50
13. In the present matter, the RPM agreement recommends a discount list with upper limits to its
authorized dealers to comply. The RPM indirectly provide an incentive to the dealers to prioritize the sale of
Vijeta products over its competitors which could potentially lead to the foreclosure of competition. An
immediate effect of the RPM agreement is the authorized dealers are prevented from lowering their sales
price for the Mango products, i.e., there is a price increase which the consumers find unjustified by quality.
The RPM doesn't accrue of any consumer benefits, rather, the same resulted into denial of due benefits to the
consumers as they were made to pay high prices. Therefore, it is contended that the RPM agreement causes
AAEC.
14. Additionally, the objective of establishing Vijeta was to promote Genovian products in the market.51
However, Vijeta by entering into such an anti-competitive agreement restricts other Genovian enterprises
and persons from competing in the market and thus defeating the entire purpose of establishing Vijeta as it
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neither improves the production of Genovian products nor promotes economic development in the means of
production and distribution of such goods.
15. Thus, the potential negative effects of the agreement on the competition and the absence of such
positive effects clearly show that the agreements entered into by Vijeta and its authorised dealers would
likely cause AAEC and thus is in violation of Section 3(4) read with Section 3(1).
ISSUE II : WHETHER VIJETA HAS CONTRAVENED THE PROVISIONS UNDER SECTION 4(2) OF THE
ACT?
16. It is contended before the Competition Commission of Genovia that Vijeta has contravened Section 4
(2) of the Act. It is, thus, contended [II.A] that the relevant market in which Vijeta operates is the Mango
smartphone market, aftermarket and Offix app market and [II.B] Vijeta has acquired its dominant position
and [II.C]Vijeta has abused its dominant position in the relevant market.
[II.A] Dominance is sought to be established in the defined relevant market.
17. Market refers to where buyers and sellers have access to each other to enter into a transaction.
Relevant market is required to be delineated to identify the boundaries within which effective competition
52
takes place under competitive constraints. Relevant market may be determined with reference to relevant
product market or the relevant geographic market or with reference to both.53
18. Relevant product market encompasses all products (goods or services) that are capable of being
interchangeable or substitutable in terms of consumption owing to similar characteristics, pricing or intended
54
usage. A product market enables demand substitutability wherein products in the market are
interchangeable in terms of utility.55 The Commission must have due regard to factors related to the product
56
such as physical characteristics of the product or end use, price, consumer preferences, etc. Two products
need not be perfectly substitutable, their functionally interchangeability would form them as part of the
same relevant market.57 They may not even be identical to each other in terms of price and/or quality58 and
59
can still be considered as substitutes.
19. It is pertinent to note that even though different smart phones possess distinct features such as
storage capacity, processor speed, availability of multi-home apps, video chat sending and receiving email,
they are distinguished from other types of phone (i.e. basic or feature phones), the relevant product market
60
was identified as the ‘market for smartphones’ owing to its nature of substitutability.
20. Aftermarket is the market that offers complementary good and services for the purpose of
61
maintenance, upgradation, and replacement to the primary product purchased. In respect of technical
goods, the relevant markets maybe separately identified as two different markets - manufacturing and sale
of the particular good; and aftermarket62 that includes supply of spare parts of the primary product and
63
provision of after-sale services. Certain conditions laid down in the primary product market shall facilitate
64
dominance in the aftermarket.
21. It is pertinent to note that mobile phone applications aiming to provide a particular service would be
65
deemed to be a distinct relevant market for that application.
22. In the present matter, the operations of Vijeta involve two distinct products - ‘Mango’ smartphones
and ‘Offix’ applications (that simplifies basic office tasks and increase productivity). With respect to
smartphones, the primary product market pertains to the manufacture and sale of the Mango brand
66 67
smartphones. The aftermarket pertains to accessories of the phone and the after-sales services. In light
of the above stated propositions, the distinct relevant markets in which the dominant position of Vijeta is
sought to be proved are the smartphone market, aftermarket that includes the market of spares and
accessories and the market of after-sales services, and Offix app market.
[II.B] Vijeta enjoys a position of dominance in the relevant market
23. Dominance is a position of strength enjoyed by an enterprise in a market which facilitates it to
68
operate independently of competitive market forces or favourably affect consumers and/or competitors. To
establish the dominance of Vijeta, factors such as [II.B.1] dominance acquired by virtue of being a Public
Sector Undertaking (PSU) or otherwise; [II.B.2] market share of the enterprise; [II.B.3] vertical integration
of enterprise; [II.B.4] dependence of consumers
[II.B.1] Dominance acquired by virtue of being a PSU or otherwise
24. Acquisition of dominance by virtue of being a PSU or otherwise as a consideration to determine
dominant position of an enterprise.69 State monopolies and public enterprises, despite their role in the
development of the economy and performance of social obligations, has an adverse effect on pumping of
70
budgetary oxygen from the Government treasury. The dominant power enjoyed by such enterprises may be
subject to abuse due to Government support and patronage.71 The dominance could be abused to exhibit
72
unfair and discriminatory conduct.
25. In the present matter, Vijeta was set up with the objective of becoming self-reliant in the field of
electronics and IT industries. Vijeta was established to enable Genovian companies enjoy proprietary rights
and develop domestic industry. Heavy investments were made in the research and development activities to
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equip Vijeta manufacture its own products (Mango smartphones) and develop its own application (Offix).73 It
is also stated that various Central Ministers of the Government promoted the mobile phones in various
74
speeches and public appearances, which helped Vijeta build its brand and goodwill in the market, much
faster than any new enterprise. It is also pertinent to note that very high expenditures were incurred by the
Government in promoting the Offix Application. Therefore, these point that Vijeta enjoyed a dominant
position in the markets of smartphones as well as software application due to the position acquired by virtue
of being a fully-funded statutory corporation.
[II.B.2] Vijeta has a high market share in the aftermarket of the Smartphones
26. Dominant position is associated to the concept of market power that enables an enterprise to act
independently of competitive forces.75 Although market share is an important factor in assessing the
76 77
dominance of an enterprise , it is not the sole factor that determines the dominance.
27. It is pertinent to note that an enterprise may acquire a dominant position in its aftermarket by virtue
78
of its policy in its primary product market. Therefore, in instances where OEMs insist that consumers use
the accessories of the original product and service only in centres authorised by the OEM, and state that the
failure of compliance to these conditions will result in the voidance of warranty of the product, dominance of
the enterprise is automatically acquired in the aftermarket.79
28. In the present matter, Vijeta does not recognize its warranty obligations for Mango products if
accessories of the phones belonged to any brand other than that of Mango or if the phones were serviced at
80
stores other than that of Mango Tree stores. This implies that Vijeta enjoys a monopoly in its aftermarket
with respect to its accessories and provision of services.
[II.B.3] Vertical integration of the enterprise may result in dominance
29. Vertical integration would be anti-competitive if brought about by a refusal to deal or if it creates
captive distribution channels, thus foreclosing rival firms from the market.81 Thus, level of vertical
82
integration in comparison to its competitors is a factor to attribute dominant position. If vertical
arrangements have the effect of reducing/limiting competition.83
30. In the present case, Vijeta has exerted its dominance in the aftermarket by creating arrangements
wherein it controls the distribution channel to operate in its favour. It bars authorised dealers from selling
84
parts or accessories of the phone that are manufactured by other companies. Similarly, consumers are
prohibited from purchasing accessories or servicing their mobile phones at unauthorised stores, thus
ensuring a favourable distribution channel for Vijeta's product of accessories and parts of the phone. The fact
that Vijeta is able to enforce such an arrangement of vertical integration proves its dominance in the relevant
aftermarket.
[II.B.4] Dependence of consumers in the products of the aftermarket
31. High level of vertical integration could lead to a high level of dependence of customers on the
product.85 Hence, once a product from a relevant primary product market is purchased, the consumer is
locked-in and is forced to depend on the products offered by the aftermarket that deals with the accessories
86
of such primary product.
32. In the present matter, due to warranty conditions, the consumers are locked-in and forced to rely
upon the products in its aftermarket as soon as they purchase their primary product - Mango smartphone.
[II.C] Vijeta has abused its dominant position
33. The Competition Act 2002 lays down the various means employed an enterprise to abuse its dominant
position.87 Vijeta has abused its dominance by way of [II.C.1] imposing unfair prices and conditions;
[II.C.2] indulgence in practice(s) that results in detail of market access; [II.C.3] imposition of irrelevant
supplementary obligations on other parties; and [II.C.4] exploits dominance in one relevant market to enter
into another.
[II.C.1] Vijeta has abused its dominant position by imposing unfair prices and conditions
34. Imposition of unfair condition on the purchase/sale of goods or services and unfair pricing (including
predatory pricing) amounts to abuse of dominance.88 Unfair conditions are those that give rise to unfair trade
89
practice which causes loss or injury to the consumer.
90
35. It is pertinent to note that unfair pricing includes excessive pricing. Charging a price is considered
to be excessive if there is no reasonable relation to the economic value of the product supplied and is said to
91
constitute abuse of dominance. The test to determine whether pricing is excessive includes determining if
92
profit margin is excessive and whether the price is unfair when compared to pricing of other competitors.
36. Where the conduct of an enterprise not only ousts potential competition but also compels the
customer to avail of its services at a price much higher than what is otherwise available to such customer, it
is deemed to be an abuse of dominance.93 If the value of the spare part for the consumer is charged
disproportionately higher than the value of the spare part procured by the OEM, it indicates the OEM's
exploitation of the consumer's position as the spare part becomes a necessary secondary consumable
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94
product requi red for effective functioning of the primary product.
37. It is held that a dominant firm demanding exclusive purchasing commitment from the consumers
95 96
amounts to foreclosing competition which is against the principles of the TFEU. If an undertaking in a
dominant position ties purchasers, even if it does so at their request, by an obligation or promise on their
part to obtain all or most of their requirements exclusively from the said undertaking is said to have abused
its dominant position within the meaning of Article [102] of the Treaty, irrespective of whether the obligation
in question is stipulated without further qualification.97
38. Predatory pricing refers to offering of a product below the average cost with a view to eliminate
competition.98 Providing a product at a price below its cost will not amount to unfair pricing unless the
99
enterprise is shown to have abused its dominance. Zero pricing offered by a dominant player amounts to
annihilating or destructive pricing being beyond the parameters of promotional or penetrative pricing.100
39. In the present matter, the warranty conditions laid down by Vijeta with respect to its smartphone
product curtails product (accessories) substitutability despite feasible and desirable alternatives being
available in the market, thus creating a locked-in effect on the consumer. Further, there is a high mark-up
margin in prices of aftermarket spare parts, disproportionate to the economic value of the products supplied
and the prices are exploitive and unfair under Section 4(2)(a)(ii) of the Act.
40. It is submitted that the unfair condition imposed by Vijeta coupled with its excessive pricing in the
smartphone market amounts to abuse of dominance under Section 4(2)(a) of the Act.
41. Further, Vijeta offered the Offix Applications completely free for all users, with the aim of eliminating
competition in the market, thus undertaking destructive pricing policies. It is pertinent to note that the app
has amassed a subscription base of about 32% of all users in just 6 months, indicating its success in
acquiring dominance, gaining higher market share and control and exploiting the same. It is also pertinent
to note that this sudden and significant increase has taken a hit on the competitors, and continuance of this
strategy will drive out all the competition in the market. Thus, it is humbly submitted that Vijeta, being a
dominant entity in both the smartphone as well as software application market, has contravened Section 4
(2)(a)(ii) of the Act.
[II.C.2] Vijeta has abused its dominant position by indulging in practice(s) resulting in denial of
market access.
42. Where a dominant enterprise undertakes any activity that results in denial of market access to other
competing firms, it is said to be abuse of dominance.101 If the ability of independent repairers to offer repair
and maintenance services to the primary product and effectively compete with the authorized dealers of the
OEMs for similar services is hampered by the dominant firm, such a firm is held to have contravened Section
102
4(2)(c). Where unfair conditions and prices as enshrined under Section 4(2)(a) causes obstructions and
denied access to other competitors in the market, it was said to be a violation of Section 4(2)(c) as well.103
Even though independent retailers or parallel importers are not competitors, denial of market access to them
104
due to unreasonable condition of warranty invites application of this provision.
43. Spare parts, diagnostic tools, and accessories constitute essential facilities for the independent
repairers so as to provide effective after sale repair and maintenance work and facilitate effective competition
105
with the authorised dealers of the OEMs.
44. Network effect refers to the effect that a single user of a product has on the value of the product to
other existing potential users.106 Offering of free voice call service plans helps in creating a direct network
107
effect that would be in consideration when deciding which business to subscribe to. Similarly, pre-
installation of an app may create a sense of exclusivity and default as users may not opt for downloading
competing apps.108 Achieving outlet exclusivity by imposing unfair means indicates that Article 102 of the
109
Treaty can be applied to de facto or contractually exclusive.
45. In the present matter, authorised dealers of Vijeta which sells parts and accessories are categorically
110
not allowed to deal with such parts manufactured by other business entities. This denies market for those
enterprises that deal with general or other brand parts and accessories that have the same utility. It is
pertinent to note that these accessories of Mango phones are very expensive and Vijeta denies access to
alternatives that can be sold, thus impacting the dealers as well. Similarly, the warranty obligations mandate
that consumers cannot approach any other service store for the maintenance/service of the phone, thus
denying access to such service stores.
46. By pre-installing Genovian Apps including Offix in Mango smartphones, a level-playing field amongst
other competitors is absent as it has a clear advantage. Such pre-installation of Offix application may entail
more users using such advantage, thus causing high barriers of entry in the document tool application
market.
[II.C.3] Vijeta has abused its dominant position by imposing of irrelevant supplementary
obligations on other parties
47. Forcing supplementary obligations by their nature or commercial usage have no connection with the
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subject matter of the contract are anti-competitive prohibited by Section 4.111 A tying arrangement by a
112
dominant entity is violative of Section 4(2)(d). For Section 4(2)(d) to be attracted, the following
conditions have to be fulfilled : dominance in the tying market; The tying and tied goods must constitute
two distinct products; consumers must have no choice of obtaining the tying product without the tied
product; Foreclosure effect on competition; and No objective justification.113
48. In light of the above laid down principle, it is pertinent to note that Vijeta has abused its power to
impose conditions that require mandatory reliance on the aftermarket product (spares, accessories and
service of Mango smartphones) so as to enjoy the primary product (the smartphone) efficiently. The
consumer is in a locked-in state and the condition gives rise to a foreclosure effect on the competition
without any objective justification.
[II.C.4] Vijeta has abused its dominant position by exploiting dominance in one relevant market to
enter into another.
49. Exploiting dominance in one relevant market to enter into another market is abuse of dominance.
Where the undertaking is dominant in a particular market, without any objective necessity, reserves to itself
or an undertaking belonging to the same group, an ancillary activity which might be carried out by another
undertaking as part of its activities on a neighbouring or separate market, with the possibility of eliminating
114
all competition from such undertaking. In cases of Tying, where a dominant enterprise in one market uses
its position to encourage or force customers also to buy from it which fall in to other market, is an example of
use of dominance in one market to strengthen position in another market.115
50. In light of the above principle, Vijeta forces consumer to use products available in the aftermarket in
order to efficiently use smartphones. Similarly, the pre-installation of Offix application in Mango smartphones
is a clear abuse of dominance that Vijeta enjoys in its smartphone market as pre-installation gives an
unnecessary edge to the app in its market. Moreover, it is installed in such a way that Offix Application
cannot be deleted from the Mango phone.116 It is thus submitted that Vijeta has contravened this provision
and has abused its dominance as under Section 4 of the Competition Act.
ISSUE III : WHETHER DOTD HAS CONTRAVENED THE PROVISIONS UNDER SECTION 4(2) OF THE
ACT?
51. It is contended before this Hon'ble Commission that DOTD has not contravened Section 4(2) of the
Act as [III.A] it is an enterprise within the ambit of the definition of an enterprise under section 2(h) of the
Act [III.B] DOTD is dominant in relevant market and [III.B] DOTD uses the dominant position to abuse
market.
[III.A] DOTD is an enterprise
52. An enterprise has been defined under Section 2(h) of the Act to mean, either a person or a
department of government, who or which is or has been engaged in any activity relating to either,
production, storage, supply, distribution, acquisition or control of articles or goods, or provision of services, of
any kind, or investment, or business of acquiring, holding, underwriting or dealing with shares, debentures
or other securities of any other body corporate.117
53. It is contended that DOTD is a government department that falls under the ambit of the definition of
an enterprise [III.A.1] and possesses no sovereign power to be classified as an exception in lieu of the
Competition Act. [III.A.2]
[III.A.1] DOTD is a government department that is within the ambit of the definition of an
enterprise under Section 2(h) of the act.
54. It is contended that a bare reading of the section in relation to the activities undertaken by DOTD,
forms the understanding that DOTD is a controller of articles and goods as it is in charge of formulating
policies and schemes for promotion that will in turn affect the type of articles or goods and services that are
consumed and supplied in the market. Similarly, the power of DOTD to control the goods and services in the
relevant market in Genovia is proved by the instructions provided by DOTD to Vijeta in pre-installing only
Genovian applications on the Mango mobile phones.
55. It is contended that the Act focuses on the functional aspects of an entity rather than institutional
aspects. The scope of the definition on the institutional front has been kept broad enough to include virtually
118
all entities as it includes a ‘person’ as well as departments of the government. In lay man terms, it is vital
to highlight that DOTD despite being a government department falls under the said ambit.
119
56. It is further submitted that the terms ‘pertain’ and ‘relate’ are synonymous to each other. It
doesn't necessarily restrict itself to mean ‘forming part’ of.120 Taking this understanding into consideration, it
is to be highlighted that in order for an entity to be considered an enterprise under the section, the activities
are said to be economic in nature. However, the enterprise does not necessarily have to be a part of this
activity.
57. Therefore, it is not necessary that a person should be carrying out any business to qualify as an
enterprise under the Competition Act.121 If an enterprise or person carries on any activity which effects the
carrying on of business in any manner, then the enterprise or the person has to be treated as an
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122
enterprise. The DOTD, like most departments of the government do not undertake any commercial or
economic activity by itself but plays a vital role in the conduct of other businesses in the relevant market and
as a result it will fall under the ambit of the definition of enterprise
[III.A.2] DOTD possesses no sovereign power to be classified as an exception in lieu of the
Competition Act.
58. Section 2(h) provides for an exemption of sovereign functions. An activity unless classified as
“relatable to sovereign functions of the government including all activities carried on by the departments of
atomic energy, currency, defence and space”, it cannot avoid being classified as an ‘enterprise’ under section
123
2(h) of the Act. DOTD in consonance, does not fall under the aforementioned categories. The works of
DOTD relate to the control of goods in the market of commercial entities.
59. It is contended that it is evident is that every economic activity by a government department non
124
relatable to a sovereign function is covered under competition law. As a result, the works of a government
department does not always relate to a sovereign function and are hence governed by the Competition law of
India. In conclusion, DOTD is not discharging a sovereign function as held by the Act and cannot be
exempted from the definition of an enterprise.
60. It is further contended that Section 54 of the Act empowers the central government by notification to
exempt any class of enterprises from all or any of the provisions of the proposed legislation for such period
as may be specified in that notification.125 This connotes that there is no automatic exemption of any
126
function under the Act. In the instant matter, neither was there any notification from the central
government to exempt DOTD nor did the same fall under the ambit of sovereign functions.
61. It is therefore submitted that DOTD is an enterprise and does not possess any kind of immunity under
the Act or any exemption provided by explicit notification.
[III.B] DOTD is dominant in its relevant market
It is humbly contended that DOTD's relevant market is the geographical limits of Genovia [III.B.1] and is
dominant in the relevant market [III.B.2].
[III.B.I] DOTD'S relevant market is the geographical limits of Genovia.
62. It is contended that the first aspect to be looked into is, what the relevant market was in this case.127
As per Section 2(r), ‘relevant market’ means the market which may be determined by the Commission with
128
reference to the relevant product market or the relevant geographic market or with reference to both.
Purpose of defining ‘relevant market’ is to assess with identifying in a systematic way the competitive
constraints that undertakings face when operating in a market.129 The market in question is that of the
geographical market and this is because the DOTD was created with purpose of promotion of IT in the
Genovian market and does not reflect to a single product or commodity of the IT industry. Accordingly,
taking this into consideration the geographical market needs to be analysed.
63. It is neither possible nor desirable to evolve any straight jacket formula for interpreting the term
‘relevant market’ and each case is required to be decided based on the material brought on record, which is
germane to the factors specified in Section 19(6) and 19(7) of the Act.130
64. The relevant geographic market as defined in Section 2(s) of the Act, is an area, in which:
(a) The conditions of competition for supply of goods or demand of goods are distinctly homogenous; and
131
(b) Such conditions can be distinguished from the conditions prevailing in the neighbouring areas.
65. It is presented that the factors under Section 2(s) must be read in conjunction with Section 19(7). It
is pertinent to note that, the consumers have a wide range of IT products and applications available, and this
is considered to be cross border transactions as the apps and products created are not solely created for one
location but rather spread across different location for different consumers. The developers distribute similar
homogenous products to all of their customers regardless of their geographic location.132 Hence, it is
submitted that although the transactions of these homogenous products can be considered to be global, the
issue at hand is in regard to the dominance that persists is in the local market and hence the relevant
geographical market is Genovia.
[III.B.2] DOTD is dominant in the relevant market.
66. It is contended that the next aspect that must be analysed is that of the dominance in the relevant
133
market. A dominant position means a ‘position of strength’ , where an enterprise is able to operate
independently of competitive forces prevailing in the relevant market; or affect its competitors or consumers
or the relevant market in its favour.134
67. DOTD is a department of the government that is solely engaged in the relevant geographic market of
Genovia with the power of formulation of schemes, policies and programmes to make Genovia a tech leader
135
of the world. This notion of independence is related to the degree of competitive constraint exerted on the
undertaking in question.136 Dominance entails that these competitive constraints are not sufficiently effective
137
and hence that the undertaking in question enjoys substantial market power over a period of time. The
enterprise of DOTD is unaffected by any market force and has no reliance of any supplier or consumer in the
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relevant market.
68. The enterprise has an effect on the consumers of the market as well as the competition of the market
138
because of its power to control other enterprises and groups. The enterprise issued instructions to Vijeta
to allow only Genovian applications as pre-installed applications. This holds as evidence to prove how the
enterprise has an effect on the consumers by controlling the choice of supply available and in furtherance it
also shows how there is a reliance of other enterprises like Vijeta on DOTD in regard to decisions made.
139
69. In consonance, Section 19(4) takes into account factors to determine dominance. One factor that is
considered is that of market share. It does not say that this position of strength necessarily has to come out
of market share in statistical term.140 An inference can be made that as DOTD acts as a single player with
ultimate control over regulation and promotion in the information technology field, it constitutes the majority
market share.
141
70. Another factor that is included in the Section is the dependence of consumers on the enterprise. As
seen from the above contentions, it is evident that the control of goods has an effect on the choice and a
reliance of the consumer on the enterprise in regard to the policies and schemes founded for the relevant
market.
71. It is therefore submitted that DOTD is an enterprise in the relevant market that holds a dominant
position due to its independence and effect on the relevant market.
[III.C] DOTD uses the dominant position to abuse the market.
72. It is humbly contended that dominance per se is neither unlawful nor punishable142 but the abuse
143
is. DOTD uses it dominant position to abuse the power bestowed by the ministry. Section 4(2) of the act
highlights factors that must be taken into consideration when analysing the contravention of dominance.
DOTD contravenes by [III.C.1] indirectly imposing unfair and discriminatory conditions and [III.C.2] as a
result it restricts market access.
[III.C.1] DOTD contravenes by indirectly imposing unfair and discriminatory conditions
73. It is contended that abuse of dominance is judged in terms of specified acts committed by a
dominant enterprise.144 When a provision could enable an authority to discriminate, such a provision itself is
145 146
bad. Section 4(2)(a)(i) is in consonance to unfair or discriminatory conditions. By instructing Vijeta to
install only Genovian apps on Mango phones, the enterprise is imposing an indirect discriminatory condition
through Vijeta against other app developers that do not originate in Genovia.
74. Contravention of Section 4(2)(a)(i) can be made out only when there is a sale of goods/services and
certain terms and/or conditions are imposed which are unfair or discriminatory.147 Vijeta acts as a service
provider through the app store.
75. It is clear that the meaning of ‘service’ as envisaged under the Act is of a very wide magnitude and is
not exhaustive in application.148 DOTD as an enterprise provides for schemes and policies that aid in the
promotion of IT in Genovia. These schemes and policies in turn have a tremendous effect on the commercial
matters and dealings of the persons involved in the relevant market. In a similar light, the same also has an
effect on the consumers and their buying trends within the relevant market. It is also contended that, the
app store on Mango phones envisions a wide range of services and is not restricted to a single kind.
76. The discrimination imposed by DOTD through Vijeta can be considered as an eligibility criterion set for
apps to qualify as a pre-installed application on any mobile phone that is founded by the Vijeta enterprise.
This high eligibility criteria of being a Genovian developer discriminates against other developers by
disallowing such applications as a pre-installed application on mobile phones owned by Vijeta.
[III.C.2] DOTD restricts market access to competition in the relevant market.
77. It is contended that dominant enterprises must not take unfair advantage of their position as such
abusive conduct not only impacts the market as a whole but may also affect the entry and sustenance of
149
other market participants into complementary markets associated with the platform. The discriminatory
150
conditions laid down by DOTD, constitute practices leading to denial of market access.
78. It is further contended that selectively allowing only Genovian developers to be a part of the pre-
installed applications relays that other app developers are denied easy entry into the market. Similarly,
Mango phones have a feature of ‘suggested apps’, which now wholly consist of only Genovian applications.151
The features compiled with network effects will create a favourable market only for Genovian applications,
giving them an unfair advantage.
79. It is submitted that network effects exist when the utility that a user derives from consumption of a
152
good increases with the number of other agents consuming the good. The type of network effect being
questioned by the developers is known as direct network effects. This is where an increase in usage of a
particular platform leads to a direct increase in the value for other users and the value of a platform to a new
user will depend on the number of existing users on that platform.153
80. It is vital that network effects and market power of entities be judged.154 In the same light, as a
result of the network effects and the suggested application mechanism, it will only result in an increase in
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the number of users on the Genovian applications and further place barriers to entry for other app developers
even if the nature of the technology is homogenous. This is because, network effects in turn ensures that
customers do not switch to other platforms easily unless there is a new competitor entering the market with
155
an altogether disruptive technology. This effect not only creates barriers to entry and denies market
access but also restricts the consumers from a varied choice of services available in the market.
81. Therefore, it is contended that DOTD uses its dominance to impose discriminatory conditions against
non-Genovian creators and developers which deny them market access and as a result even affect the
consumers in the market.
PRAYER
Wherefore, in light of the issues raised, authorities cited and arguments advanced, it is most humbly
contended that the Competition Commission of Genovia be pleased to:
1 DECLARE, that Vijeta has violated Section 3(4) read with Section 3(1) of the Competition Act, 2002;
2 DECLARE, that Vijeta has violated Section 4(2) of the Competition Act, 2002;
3 DECLARE, that DOTD has violated Section 4(2) of the Competition Act, 2002;
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience. And for this, the
counsel on behalf of the Informant as is duty bound, shall forever humbly pray.
———
1
The Competition Act, 2002, Section 2(h), No. 12, Acts of Parliament, 2002 (India).

2
The Competition Act, 2002, Section 2(l), No. 12, Acts of Parliament, 2002 (India).

3
Moot Proposition, Para 5.

4
Samir Agrawal v. ANI Technologies Pvt. Ltd, 2018 Comp LR 1114 (CCI).

5
The Competition Act, 2002, Section 2(b), No. 12, Acts of Parliament, 2002 (India); Director General (Supplies and Disposals) v. Puja
Enterprises Basti, 2013 Comp LR 714 (CCI).

6
Technip SA v. SMS Holding Pvt. Ltd., (2005) 5 SCC 465.

7
All India Tyre Dealers' Federation v. Tyre Manufacturers, 2013 Comp LR 92 (CCI); Builders Association of India v. Cement Manufacturers'
Association, 2016 Comp LR 983 (CCI).

8
Fx Enterprise Solutions India Pvt Ltd v. Hyundai Motor India Ltd., 2017 SCC OnLine CCI 26.

9
Anheuser-Busch Incorporated/Scottish & Newcastle OJ, [2000] 5 CMLR 75.

10 th
R WHISH AND D BAILEY, COMPETITION LAW 104 (8 ed. 2015).

11
Louis Kaplow, The Meaning of Vertical Agreement and Structure of Competition Law, 80 ANTITRUST LAW JOURNAL 563 (2016).

12
Director General (Supplies and Disposals) v. Puja Enterprises Basti, 2013 Comp LR 714 (CCI). MDD Medical Systems India Private Limited v.
Foundation for Common Cause & People Awareness, 2013 Comp LR 327 (CompAT).

13
PHILLIP E. AREEDA& HERBERT HOVENKAMP, ANTITRUST LAW 4 (3d ed. 2010).

14
Shailesh Kumar v. Tata Chemicals Limited, Case No. 66 of 2011 (CCI); Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 Comp LR 1
(CCI).
15
Moot Proposition, Para 7(a).

16
Moot Proposition, Para 7(e).

17
Vijay Gopal v. Inox Leisure Limited and Hindustan Coca-Cola Beverages Private Limited, 2019 SCC OnLine CCI 4.
18
J Dianne Brinson, Proof of Economic power in a Sherman Act Tying Arrangement Case : Should Economic Power be Presumed When the
Tying Product is Patented or Copyrighted?, 48 LA L REV 29 (1987); Northern Pacific R Co v. United States, 356 US 1 (1958).

19
ABIR ROY &JAYANT KUMAR, COMPETITION LAW IN INDIA (2nd ed. 2014).

20
Sonam Sharma v. Apple Inc., 2013 Comp LR 346 (CCI).
21
Fortner Enterprises Inc v. United States Steel Corp ET AL, 394 US 495 (1969).
22
Nat'l Soc'y of Prof'lEng's v. United States, 435 US 679 (1978).

23
S.M. DUGAR, GUIDE TO COMPETITION LAW 1007 (6th ed. 2016).
24
Vijay Gopal v. Inox Leisure Limited and Hindustan Coca-Cola Beverages Private Limited, 2019 SCC OnLine CCI 4.

25
JONATHAN FAULL & ALI NIKPAY, THE EU LAW OF COMPETITION, (3rd ed. 2014).
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26
S.M. DUGAR, GUIDE TO COMPETITION LAW 423 (6th ed. 2016).
27
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 Comp LR 1 (CCI).

28
Englander Motors, Inc. v. Ford Motor Co, 267 F.2d 11.

29
Moot Proposition, Para 7(d).

30
Moot Proposition, Para 7(e).

31
The Competition Act, 2002, Section 3(4)(e), No. 12, Acts of Parliament, 2002 (India).

32
Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India Limited, 2017 SCC OnLine CCI 26; Samir Agrawal v. Uber India Systems Pvt.
Ltd., 2018 SCC OnLine CCI 86.
33
U.S. v. Griffith, 334 US 100 (1948).
34
Ibid.

35
Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India Limited, 2017 SCC OnLine CCI 26.

36
Shubham Sanitary wares v. Hindustan Sanitary wares& Industries Ltd., 2014 Comp LR 258 (CCI).

37
Moot Proposition, Para 7(a).

38
Moot Proposition, Para 7(b).

39
Fresh Del Monte Produce, Inc. v. Internationale Frunchtimport Gesellschaft Weichert GmbH and Co. KG, C-293/13 P.

40
Tata Engineering and Locomotive Co. Ltd v. Registrar of Restrictive Trade Agreement, (1977) 47 Comp Cas 520 SC.

41
Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India Limited, 2017 SCC OnLine CCI 26.

42
Shri Ganshyam DassVij v. Bajaj Corp. Ltd., [2015] CCI 155.

43
European Commission Guidelines on Vertical Restraints, (2010/C130/01), para 216.

44
Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India Limited, 2017 SCC OnLine CCI 26.

45
S.M. DUGAR, GUIDE TO COMPETITION LAW 423 (6th ed. 2016).
46
JSW Paints Private Limited v. Asian Paints Limited, [2020] 158 SCL 720 (CCI).

47
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 Comp LR 1 (CCI).

48
Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India Limited, 2017 SCC OnLine CCI 26; Samir Agrawal v. Uber India Systems Pvt.
Ltd., 2018 SCC OnLine CCI 86.

49
Ibid.

50
European Commission Guidelines on Vertical Restraints, (2010/C130/01), para 224.

51
Moot Proposition, Para 5.
52
CCI v. Co-ordination Committee of Artists and Technicians of WB Film and Television, AIR 2017 SC 1449.

53
Sunil Bansal v. Jaiprakash Associates Ltd., 2015 Comp LR 1009 (CCI).

54
The Competition Act, 2002, Section 2(t), No. 12, Acts of Parliament, 2002 (India).

55
Hoffmann-La Roche & Co. v. Commission, (1979) ECR 461.
56
The Competition Act, 2002, Section 19(7), No. 12, Acts of Parliament, 2002 (India).; Sai Wardha Power Company Ltd. v. Western
Coalfields Ltd., 2014 Comp LR 265.

57
Tetra Pak International SA v. Commission of the European Communities, (1966) 1 ECR 05951; Europemballage Corp. & Continental Can Co.
Inc. v. Commission, (1973) ECR 215.
58
United States v. E.I. du Pont de Nemours &Co., 351 US 377 (1956); Richard A. Posner &William M. Landes, Market Power in Antitrust
Cases, 94 Harvard Law Review 937 (1980).
59
Office of Fair Trading, Market Definition : Understanding Competition Law, COMPETITION LAW GUIDELINE (2004).

60
Tamil Nadu Consumer Products Distributors Association v. Fangs Technology Pvt Ltd, Case No. 15 of 2008 [CCI].

61
S.M. Dugar, Guide to Competition Law, (Lexis Nexis 2016).
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62
Eastman Kodak Co. v. Image Tech. Servs., 504 US 451 (1992), 112 [Link]. 2072 (1992).

63
Shamsher Kataria v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).
64
Ibid.
65
In Re : Vinod Kumar Gupta and WhatsApp Inc., Case No. 99 of 2016 [CCI].

66
Moot Proposition, Para 7(d).

67
Moot Proposition, Para 7(b).

68
The Competition Act, 2002, Explanation to Section 4, No. 12, Acts of Parliament, 2002 (India).

69
The Competition Act, 2002, Section 19(4)(g), No. 12, Acts of Parliament, 2002 (India).

70
Raghavan Committee Report : State Monopolies Policy, Paras 3.4.5-3.4.7.
71
Ibid.

72
Maharashtra State Power Generation Co Ltd (MAHAGENCO) v. Mahanadi Coalfields Ltd (MCL), 2017 Comp LR 525 (CCI); Coal India Ltd (CIL)
and Gujarat State Electricity Corp Ltd v. South Eastern Coalfields Ltd and Coal India Ltd, 2013 Comp LR 910 (CCI).

73
Moot Proposition, Para 5.

74
Moot Proposition, Para 6.
75
Belaire Owners' Association v. DLF Ltd Haryana Urban Development Authority Department of Town and Country Planning, State of
Haryana, 2011 Comp LR 239 (CCI).

76
The Competition Act, 2002, Section 19(4)(a), No. 12, Acts of Parliament, 2002 (India).

77
HT Media Ltd v. Super Cassettes Industries Ltd, 2014 Comp LR 129 (CCI); In Re : Meru Travel Solutions Pvt Ltd, Case Nos 25-28 of 2017
[CCI].

78
Shamsher Kataria v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).

79
Ibid.

80
Moot Proposition, Para 7(c).

81
The Competition Act, 2002, Section 19(4)(e), No. 12, Acts of Parliament, 2002 (India).; S.M. Dugar, Guide to Competition Law 423 (6th
ed. 2016).

82
The National Stock Exchange of India Ltd v. CCI, 2014 Comp LR 304.

83
Prakashakula Viniyoga Darula Sangham v. Hindustan Coca Cola Beverages Pvt. Ltd., [2011] CCI 26.

84
Moot Proposition, Para 7(d).

85
Belaire Owners' Association v. DLF Ltd Haryana Urban Development Authority Department of Town and Country Planning, State of
Haryana, 2011 Comp LR 239 (CCI).
86
Shamsher Kataria v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).

87
The Competition Act, 2002, Section 4, No. 12, Acts of Parliament, 2002 (India).

88
The Competition Act, 2002, Section 4(2)(a), No. 12, Acts of Parliament, 2002 (India).

89
HMM Ltd v. Director General, Monopolies and Restrictive Trade Practices Commission, (1998) 6 SCC 485.

90
Shamsher Kataria v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).

91
United Brands Co and United Brands Continental BV v. Commission, 21 Comm. Mkt. L.R. 429 (1978).
92
Ibid.
93
Shivam Enterprises v. Kiratpur Sahib Truck Operators Co-op Transport Society Ltd, 2015 Comp LR 232 (CCI).
94
British Horseracing Board v. Victor Chandler International, [2005] EWHC 1074 (Ch), (para 56).

95
Treaty on the Functioning of the European Union, art. 102.

96
Suiker Unie v. Commission, (1975) ECR 1663.
97
Hoffmann-La Roche &Co. v. Commission, (1979) ECR 461.
98
The Competition Act, 2002, Explanation (b) to Section 4, No. 12, Acts of Parliament, 2002 (India). Tetra Pak International SA v.
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Commission, (1994) 2 ECR 00755.

99
Bharti Airtel Limited v. Reliance Industries Limited& Reliance JioInfocomm Limited, 2017 Comp LR 723 (CCI).

100
MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd. &Dot Ex International Ltd., 2011 Comp LR 129 (CCI).

101
The Competition Act, 2002, Section 4(2)(c), No. 12, Acts of Parliament, 2002 (India).

102
Shamsher Kataria v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).

103
Shivam Enterprises v. Kiratpur Sahib Truck Operators Co-op Transport Society Ltd, 2015 Comp LR 232 (CCI).

104
CCI v. Fast Way Transmission Pvt. Ltd., (2018) 4 SCC 316.

105
Shamsher Kataria v. Honda Siel Cars India Ltd, 2014 Comp LR 1 (CCI).
106
Economic Commission For Latin America and The Caribbean, 2018, Data, Algorithms and Policies : Redefining the Digital World (United
Nations publication, Santiago).

107
Adi Ayal, Monopolization via Voluntary Network Effects, 76 Antitrust Law Journal, 799-822 (2010).

108
XYZ v. Alphabet Inc., 2020 SCC OnLine CCI 4.
109
Masterfoods Ltd v. HB Ice Cream Ltd, (2000) 1 ECR 11369.

110
Moot Proposition, Para 7(d).

111
S.M. Dugar, Guide to Competition Law 423 (6th ed. 2016).

112
Kapoor Glass Pvt Ltd v. CCI through its Secretary &Schott Glass India Pvt Ltd, 2014 Comp LR 295.

113
Microsoft Corp v. Commission, (2007) 2 ECR 3601.

114
Centre Belged'Etudes du Marche Telemarketing v. Compagnie Luxembourgeoise de Telediffusion SA and Information Publicite Benelux SA,
(198) ECR 3261.

115
S.M. Dugar, Guide to Competition Law 423 (6th ed. 2016).

116
Clarification, 25.

117
The Competition Act, 2002, Section 2(h). No. 12, Acts of Parliament (2002).

118
Surinder Singh Barmi v. Board of Control for Cricket in India, (2013) 113 CLA 579 (CCI).

119
Corpus Juris Secundum (C.J.S), Volume 17, Pp 693.

120
Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale, AIR 1995 SC 1102.

121
Reliance Big Entertainment Limited v. Karnataka Film Chamber of Commerce, 2012 CompL 269 (CCI).

122
Manju Tharad v. Eastern India Motion Picture Association, Kolkata, (2012) 110 CLA 136 (CCI).

123
Union of India v. Competition Commission India, (2012) 3 Comp LJ 303 (Del).
124
Rajat Verma v. Public Works (B and R) Department, [2015] 130 SCL 1 (CCI).

125
Eli Lilly and Company Lilly Corporate Centre v. Competition Commission of India, Case No. 03 of 2017.

126
Abir Roy & Jayant Kumar, Competition Law in India (2nd ed. 2014).
127
Ibid.
128
Sunil Bansal v. Jaiprakash Associates Ltd., 2016 SCC OnLine Comp AT 434.

129
Competition Commission of India v. Co-ordination Committee of Artists, (2017) 5 SCC 17.

130
Global Tax Free Traders v. William Grant & Sons Limited, 2015 Comp LR 503 (CompAT).

131
The Competition Act, 2002, Section 2(s). No. 12, Acts of Parliament (2002).
132
Vinod Kumar Gupta v. WhatsAppInc, 2017 Comp LR 495 (CCI).
133
In Re : A resident of Eldeco Elegance and Eldeco Housing and Industries Ltd. Eldeco Corporate Chamber I, SCC OnLine CCI 66.

134
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 Comp LR 1 (CCI).
135
Moot Proposition, Para 5.
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136
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 Comp LR 1 (CCI).

137
European Commission, E.U. Guidance on the Commission's Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary
Conduct by Dominant Undertakings (the “Guidance”), Official Journal of the European Union,(2009).
138
Moot proposition, Para 10.
139
RKG Hospitalities Pvt. Ltd. v. Oravel Stays Pvt. Ltd., Case No. 03 of 2019 (CCI).

140
Meru Travels Solutions Private Limited v. Competition Commission of India, 2017 Comp LR 43 (CompAT).
141
The Competition Act, 2002, Section 19(4)(f). No. 12, Acts of Parliament (2002).

142
Arshiya Rail Infrastructure Limited v. Ministry of Railways, (2013) 112 CLA 297 (CCI).

143
Cine Prakashakula Viniyoga Darula Sangham v. Hindustan Coca Cola Beverages Pvt. Ltd., Case No. UTPE 99/2009 and RTPE-16/2009
(CCI).
144
Jupiter Gaming Solutions Private Limited v. Government of Goa, (2012) 106 CLA 339 (CCI).

145
DLF Limited v. Competition Commission of India, 2014 Comp LR 1 (CompAT).

146
Ibid.

147
HPCL-Mittal Pipelines Limited v. Gujarat Energy Transmission Corporation Limited, 2018 Comp LR 215 (CCI).

148
Sunil Bansal v. Jaiprakash Associates Ltd., 2015 Comp LR 1009 (CCI).

149
[Link] Limited v. Google LLC, 2018 Comp LR 101 (CCI).
150
Dhanraj Pillay v. Hockey India, (2013) Comp LR 543 (CCI).

151
Moot proposition, Para 10.

152
Mark A. Lemley & David McGowan, Legal Implications of Network Economic Effects, CAL. L. Rev., 479, 483 (1998).

153
Harshita Chawla v. WhatsApp Inc., [2020] 161 SCL 131 (CCI).

154
Eastman Kodak Company v. Image Technical Services Inc., 504 US 451 (1992).

155
Harshita Chawla v. WhatsApp Inc., [2020] 161 SCL 131 (CCI

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