CONTINUOUS ASSESSMENT TASK-III

COMPETITION LAW
ASSIGNMENT-III
COURSE CODE: LAW 502

Competition
Appellate
Tribunal: A Study
Submitted To: Submitted By:
Dr Geeta SANYA GUPTA
Assistant Professor of Law BBA. LLB. (Hons).
School of Law L1704
Lovely Professional University 11716113
INTRODUCTION

The Competition Appellate Tribunal is a statutory organization established under the provisions
of the Competition Act, 2002 to hear and dispose of appeals against any direction issued or
decision made or order passed by the Competition Commission of India under sub-sections (2)
and (6) of section 26, section 27, section 28, section 31, section 32, section 33, section 38,
section 39, section 43, section 43A, section 44, section 45 or section 46 of the Competition Act,
2002. The Appellate Tribunal shall also adjudicate on claim for compensation that may arise
from the findings of the Competition Commission of India or the orders of the Appellate
Tribunal in an appeal against any findings of the Competition Commission of India or under
section 42A or under sub-section (2) of section 53Q of the Act and pass orders for the recovery
of compensation under section 53N of the Act.

The Central Government has set up the Appellate Tribunal on 15th May, 2009 having its
Headquarter at New Delhi. Hon’ble Dr. Justice Arijit Pasayat, former Judge of Supreme Court,
has been appointed as the First Chairperson of the Appellate Tribunal. Besides, the Chairperson,
the Appellate Tribunal shall consist of not more than two Members to be appointed by the
Central Government. The Chairperson of the Appellate Tribunal shall be a person, who is, or has
been a Judge of the Supreme Court or the Chief Justice of a High Court. A Member of the
Appellate Tribunal shall be a person of ability, integrity and standing having special knowledge
of, and professional experience of not less than twenty-five years in, competition matters,
including competition law and policy, international trade, economics, business, commerce, law,
finance, accountancy, management, industry, public affairs, administration or in any other matter
which in the opinion of the Central Government, may be useful to the Appellate Tribunal. The
Chairperson or a Member of the Appellate Tribunal shall hold office for a term of five years and
shall be eligible for re-appointment. Provided that no Chairperson or other Member of the
Appellate Tribunal shall hold office after he has attained the age of sixty-eight years or sixty-five
years respectively.
THE TRIBUNAL

Every appeal shall be filed within a period of 60 days from the date on which a copy of the
direction or decision or order made by the Competition Commission of India is received and it
shall be in the prescribed form and be accompanied by the prescribed fees. The Appellate
Tribunal may entertain an appeal after the expiry of the period of 60 days if it is satisfied that
there was sufficient cause for not filing it within that period.

The Appellate Tribunal shall not be bound by the procedure laid down in the Code of Civil
Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject
to the other provisions of this Act and of any rules made by the Central Government. The
Appellate Tribunal shall have, for the purposes of discharging its functions under the Act, the
same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908).
Every order made by the Appellate Tribunal shall be enforced by it in the same manner as if it
were a decree made by a court in a suit pending therein. If any person contravenes, without any
reasonable ground, any order of the Appellate Tribunal, he shall be liable for a penalty of not
exceeding rupees one crore or imprisonment for a term up to three years or with both as the
Chief Metropolitan Magistrate, Delhi may deem fit.

ORGANIZATION OF THE TRIBUNAL

The Commission comprises a Chairperson and not less than 2 and not more than 6 other
members appointed by the Central Government. Ashok Kumar Gupta is the current Chairperson
of the CCI. The members of the Competition Commission of India are:

1. Dr. Sangeeta Verma

2. Bhagwant Singh Bishnoi

FACTS OF THE CASES

 In December 2010, CCI instituted a probe to examine if there was any cartelization
among traders when onion prices touched 80 rupees, but did not find sufficient evidence
of market manipulation.

 In June 2012, CCI imposed a fine of ₹63.07 billion (US$840 million) 11 cement

companies for cartelisation. CCI claimed that cement companies met regularly to fix
prices, control market share and hold back supply which earned them illegal profits.

 In January 2013, CCI modified clauses in agreements between real estate company DLF
Limited and apartment buyers.Business and finance Portal Moneycontrol.com welcomed
 the order saying that, "This is a landmark ruling and will benefit property owners across
the country". Some of the important modifications were:

o The Builder cannot undertake any additional construction beyond the approved
building plan given to the buyers.

o The builder will not have complete ownership of open spaces within the
residential project area not sold.

o Not just the buyer but the builder will be liable for any defaults

o All payments made by the buyers must be based on construction milestones and
not "on demand".

o The builder will not have the sole power to form the owner’s association.

 On 8 February 2013, CCI imposed a penalty of ₹522 million (US$6.9 million) on

the Board of Control for Cricket in India (BCCI) for misusing its dominant position. The
CCI found that IPL team ownership agreements were unfair and discriminatory and that
the terms of the IPL franchise agreements were loaded in favor of BCCI and franchises
had no say in the terms of the contract. The CCI ordered BCCI to "cease and desist" from
any practice in future denying market access to potential competitors and not use its
regulatory powers in deciding matters relating to its commercial activities.[13][14]

 In 2014, CCI imposed a fine of ₹10 million upon Google for failure to comply with the
directions given by the Director General seeking information and documents.

 On 25 August 2014, CCI imposed a fine of ₹2544 crores on 14 Indian car manufacturers
for failure to provide branded spare parts and diagnostic tools to independent repairers,
hampering their ability to repair and maintain certain car models. The companies fined
were Maruti Suzuki, Mahindra & Mahindra, Tata Motors, Toyota, Honda, Volkswagen,
Fiat, Ford, General Motors, Nissan, Hindustan Motors, Mercedes Benz and Skoda. 

 On 17 November 2015, CCI imposed a fine of ₹258 crores upon Three Airlines.
Competition Commission of India (CCI) had penalized the three airlines for cartelization
 in determining the fuel surcharge on air cargo. A penalty of Rs 151.69 crores was
imposed on Jet Airways, while that on InterGlobe Aviation Limited
(Indigo) and SpiceJet are Rs 63.74 crores and Rs 42.48 crores respectively.

 In May 2017, CCI ordered a probe into the functioning of the Cellular Operators
Association of India following a complaint filed by Reliance Jio against the cartelization
by its rivals Bharati Airtel, Vodafone India and Idea cellular.

 On 8 February 2018, it had fined Google's parent company, Alphabet Inc. for 135.86 cr
rupees for 'search bias'.

 On August 12, 2018, the CCI approved the Disney-Fox deal.

 In July 2018 the Commission imposed fines on the Federation of Gujarat State Chemists
and Druggists Association, the Amdavad Chemist Association, the Surat Chemists and
Druggists Association, the Chemists and Druggists Association of Baroda, Glenmark
Pharmaceuticals, Hetero Healthcare Ltd, Divine Saviour and their staff and officers for
breaches of the Competition Act 2002 by requiring No Objection Certificates before
appointing stockists.

 In May 2019, Umar Javeed, Sukarma Thapar, Aaqib Javeed vs. Google LLC & Ors. the
commission ordered an antitrust probe against Google for abusing its dominant position
with Android to block market rivals. In its Prima Facie opinion the commission held,
"Mandatory Pre-installation of entire Google Mobile Services (GMS) suite under Mobile
application distribution agreements MADA amounts to imposition of unfair condition on
the device manufacturers. Leveraging of Google's dominance in Google Play store to
protect relevant markets such as online general search in contravention of Section 4(2)(e)
of the Competition Act 2002".

 In June 2019, CCI issued letters to handset makers seeking details of terms and
conditions of their agreement with Google. This is to ascertain if Google imposed any
restrictions on them for using the company's apps in the past 8 years from 2011.

IMPORTANT KEYNOTES
The Competition Appellate Tribunal is a statutory organization established under the provisions
of the Competition Act, 2002 to hear and dispose of appeals against any direction issued or
decision made or order passed by the Competition Commission of India under sub-sections (2)
and (6) of section 26, section 27, section 28, section 31, section 32, section 33, section 38,
section 39, section 43, section 43A, section 44, section 45 or section 46 of the Competition Act,
2002. The Appellate Tribunal shall also adjudicate on claim for compensation that may arise
from the findings of the Competition Commission of India or the orders of the Appellate
Tribunal in an appeal against any findings of the Competition Commission of India or under
section 42A or under sub-section (2) of section 53Q of the Act and pass orders for the recovery
of compensation under section 53N of the Act.

The Central Government has set up the Appellate Tribunal on 15th May, 2009 having its
Headquarter at New Delhi. Hon’ble Dr. Justice Arijit Pasayat, former Judge of Supreme Court,
has been appointed as the First Chairperson of the Appellate Tribunal. Besides, the Chairperson,
the Appellate Tribunal shall consist of not more than two Members to be appointed by the
Central Government. The Chairperson of the Appellate Tribunal shall be a person, who is, or has
been a Judge of the Supreme Court or the Chief Justice of a High Court. A Member of the
Appellate Tribunal shall be a person of ability, integrity and standing having special knowledge
of, and professional experience of not less than twenty-five years in, competition matters,
including competition law and policy, international trade, economics, business, commerce, law,
finance, accountancy, management, industry, public affairs, administration or in any other matter
which in the opinion of the Central Government, may be useful to the Appellate Tribunal. The
Chairperson or a Member of the Appellate Tribunal shall hold office for a term of five years and
shall be eligible for re-appointment. Provided that no Chairperson or other Member of the
Appellate Tribunal shall hold office after he has attained the age of sixty-eight years or sixty-five
years respectively.

PROCEDURE

Every appeal shall be filed within a period of 60 days from the date on which a copy of the
direction or decision or order made by the Competition Commission of India is received and it
shall be in the prescribed form and be accompanied by the prescribed fees. The Appellate
Tribunal may entertain an appeal after the expiry of the period of 60 days if it is satisfied that
there was sufficient cause for not filing it within that period.

The Appellate Tribunal shall not be bound by the procedure laid down in the Code of Civil
Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject
to the other provisions of this Act and of any rules made by the Central Government. The
Appellate Tribunal shall have, for the purposes of discharging its functions under the Act, the
same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908).
Every order made by the Appellate Tribunal shall be enforced by it in the same manner as if it
were a decree made by a court in a suit pending therein. If any person contravenes, without any
reasonable ground, any order of the Appellate Tribunal, he shall be liable for a penalty of not
exceeding rupees one crore or imprisonment for a term up to three years or with both as the
Chief Metropolitan Magistrate, Delhi may deem fit.

CONCLUSION

The decision given by the Tribunal appears faulty on various grounds. While it rightly brings out
the fact that NSE is not offering or selling any “product” but is facilitating the sale and purchase
of such products by providing a platform and hence offering a “service”, what remains unclear
here is the rationale behind taking the entire stock exchange market as the “relevant service” and
not particularly the service provided in Currency Derivative segment by NSE. Despite, the fact
that that there were common users across various segments in which NSE was dealing, it cannot
be said with certainty that the users trading in CD segment would also be involved in other
segments. It may be noted here that Section 19(7) of the Competition Act, 2002 lays down the
factors that needs to be given due regard while determining “relevant product market”-

 Physical characteristics or end-use of goods;

 Price of goods or services;
 Consumer preference;
 Exclusion of in-house production;
 Existence of specialised producers;
  Classification of industrial products.

The characteristics and use of the various segments of stock exchange remains significantly
different from each other. These segments cannot be regarded as interchangeable or substitutable
by the users. Also, the price being charged by NSE for other services as observed in the DG’s
report, included the transaction fee. NSE had not waived the transaction fee in any other segment
except for the CD segment. Therefore, the fact that the other segments were also included in the
relevant product remains to be a moot question which can be clarified only by way of a clear
judicial pronouncement.

REFERENCES

All you need to know about NCLAT taking over COMPAT

https://blog.ipleaders.in › General

India - Competition Appellate Tribunal on determination of ...

http://competitionlawblog.kluwercompetitionlaw.com › ...

lecture 35 topic: competition appellate tribunal - Rama University

https://www.ramauniversity.ac.in › CompetitionLaw

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