Claimants Team Code - 3.9 - 02 - Challengers 3.9

HSF-KCL COMPETITION LAW MOOT 2021
TABLE OF CONTENTS
TEAM CODE – 3.9-02
HERBERT SMITH FREEHILLS COMPETITION LAW MOOT 2021
IN THE EUROPEAN COURT OF JUSTICE
IN THE MATTER OF
SIERRA LTD …. CLAIMANT
V.
ALFA INC. …. DEFENDANT
CASE CONCERING THE INTERPRETATION OF ARTICLE- 102 OF THE TREATY ON

THE FUNCTIONING OF EUROPEAN UNION
~ MEMORANDUM ON BEHALF OF THE CLAIMANTS~
TABLE OF CONTENTS
I
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS …………………………………………………………….….
STATEMENT OF FACTS............................................................................................................VII
ARGUMENTS ON PROCEDURE...................................................................................................1
ISSUE 1: EVALUATING THE DOMINANT POSITION OF ALFA INC. IN THE ARKET

OF MOBILE PLATFORMS.........................................................................................................1
1.1 Relevant Market of Alfa plays an Important Role in Establishing its Dominance...............1
1.1.1 Relevant Product market for Alfa in the current proceeding…………………………………7
1.1.2 Relevant geographical market for Alfa in the current proceedings………………………….8

1.2 Alfa Inc. Qualifies to Fit the Notion of Dominance Under the Ambit Of European
Competition Laws…………………………………………………………………………………
1.2.1 Alfa App store lacks suitable substitutes in the market……………………………………….8
1.2.2 Entry Barriers to the Alfa app store prevent potential competition…………………………..9
1.2.3 Alfa enjoys considerable market share in Europe…………………………………………….
10
ISSUE 2 - ALFA’S BEHAVIOUR IS CAPABLE OF CONSTITUTING AN ABUSE
UNDER ART. 102 OF TFEU......................................................................................................10
2.A - Alfa’s Behaviour Constitutes of Unlawful Refusal to Deal.........................................10
2.A.1 Refusal to grant access to essential facilities………………………………………………..11

2.A.2 Sierra’s Privacy Policies in conformity with The EU GDPR Rules…………………………12
2.A.3 Alfa is an intermediary and is relieved of any privacy obligations that arise between Sierra
and its consumers………………………………………………………………………………….12
2.B Alfa’s Behavior Constitutes Unlawful Self-Preferencing, Margin Squeeze and
Unlawful Leveraging..................................................................................................................7
II
TABLE OF CONTENTS
2.B.1 Alfa has engaged in unlawful self-preferencing of its downstream product…………………13
2.B.2 Alfa’s Upstream charge of 30% for access to the App store for third-party music streaming
Apps is an attempt towards margin squeeze of its competitors…………………………………….13
2.B.3 Alfa has leveraged its Dominant position in the smartphone market to get a stronghold in the
music-streaming industry…………………………………………………………………………...14
2.B.4 The conduct of Alfa has deprived the consumers of their true choices………………………14
2.C. Excessive Pricing is Contrary to Art. 102 TFEU...........................................................15
2.C.1 Alfa charging excessive pricing on the Apps of media and music streaming services offered
by the Claimant under Art. 102(A) of
TFEU…………………………………………………………..15
2.C.2 Alfa is applying unfair conditions on the Claimants putting them at a competitive
disadvantage and constituting an exclusionary abuse of its dominant
position…………………………………..16
2.D - Alfa’s Behaviour Constitutes a Form of Discriminatory Pricing Contrary to Art.
102 of TFEU..............................................................................................................................10
2.D.1 Alfa charges 30 % of any in-app purchases which is higher than any other App Store……..17
2.D.2 Retail shopping Apps are not charged for any in-app purchases…………………………….17
2.D.3 AlfaMusic app does not pay the charging fee for any transactions or subscription price within
the app………………………………………………………………………………………………18
ISSUE 3: EFFECTIVE APPLICATION OF ART. 102 TFEU, CONFERRED UPON THE
NATIONAL COURT TO TAKE MEASURES AGAINST ALFA INC.................................12
3.1 Powers Conferred upon The National Courts and The European to uphold Abuse of
Dominant Position by Alfa Under Art. 102 TFEU....................................................................12
3.2 National Court has the Power to Regulate Excessive Pricing Policy of Alfa......................13
ISSUE 4 – SIERRA HAS THE RIGHT TO CLAIM DAMAGES FOR INFRINGEMENT

UNDER ART. 102 OF THE TFEU.............................................................................................14
4.1 The Victims of Competition Law Infringements Can Bring An Action For Damages Before
The National Courts...................................................................................................................14
4.2 Alfa Abusive Conduct Has Distorted Consumers' Choices And Interests...........................15
III
TABLE OF CONTENTS
SUMMARY OF ARGUMENTS..................................................................................................VIII
LIST OF REFERENCES..................................................................................................................X
IV
TABLE OFABBREVIATIONS
LIST OF ABBREVIATIONS
ABBREVIATIONS FULL NAME
¶ Paragraph
% Percentage
€ Euros
App Application
Art. Article/Articles
Claimant Sierra Ltd.
Co. Company
COMP./Comp/C Competition
Corp. Corporation
Defendant Alfa Inc.
EC European Commission
EEC European Economic Community
ECJ European Court of Justice
ECLI European Case Law Identifier.
ECR European Court Reports
EU European Union
Feb. February
EULA End User License Agreement
Hon’ble Honourable
GDPR General Data Protection Regulation
Inc. Incorporated
V
TABLE OFABBREVIATIONS
TFEU Treaty for the Functioning of the European

Union
Ltd. Limited
v. Versus
No. Number
p./pp. Page/pages
Oct. October
OECD The Organisation for Economic and

Cultural Development
OJ Official Journal of the European Union
Org. Organisation
US United States
Vol. Volume
VI
STATEMENT OF FACTS
STATEMENT OF FACTS
BACKGROUND OF THE PARTIES.
Alfa Inc. (‘Alfa’) is the parent of a group of companies active on a global scale, including in the
European Union, in the production of a number of mobile devices. Alfa has its own exclusive
operating system and distributes apps through its Alfa App Store. It also runs a downstream Music
Streaming Service named Alfa Music through its App store. Sierra Ltd (‘Sierra’) is a Ruritanian
company which provides both media streaming services and music streaming services. Alfa
provides a distribution platform to Sierra through its App store.
MUSIC STREAMING APP
In 2018, Alfa launched a music streaming service through its AlfaMusic App. Since then, the
AlfaMusic App has been pre-installed with the Alfa smartphone operating system. AlfaMusic App
users are automatically offered a free trial for the first three months upon completion of which
customers can sign up for AlfaMusic at a cost of 10 euros per month. Like Alfa, Sierra offers free
trials for both services upon completion of which users are given a choice of remaining on a
Advertisement supported free service.
THE DEVELOPER AGREEMENT
Alfa does not charge app developers any charge for every download by Alfa smartphone users of
any app available on the Alfa App Store. Moreover, Alfa does not charge app developers for any
purchases made via retail shopping apps downloaded by Alfa smartphone users through the Alfa
App Store. Alfa charges app developers a fee of 30 percent of any transaction or subscription price
charged for music or media streaming services purchased through apps downloaded via the Alfa
App Store. In June 2020, Alfa updated the terms of its developer agreement to prohibit service
providers from collecting data from users via apps downloaded from the Alfa App Store and from
sharing such data with third parties by citing compliance to the GDPR Rules.
REMOVAL OF SIERRA’S APP FROM ALFA APP STORE
Upon Sierra’s non-compliance with the unreasonable condition of the developer agreement
prohibiting the collection and sharing of user data, Alfa wrote to Sierra on 1 October 2020 stating
VII
STATEMENT OF FACTS
that it will no longer allow Sierra’s apps to be distributed via its Alfa App Store. Hence, the current
proceeding has been brought by the Claimant against the Defendant’s actions.
VIII
ARGUMENTS ON PROCEDURE
ISSUE 1: EVALUATING THE DOMINANT POSITION OF ALFA INC. IN THE MARKET

OF MOBILE PLATFORMS
1. Claimant seeks to refer the current proceedings before the Hon’ble Court of Justice owing to the
abusive conduct of Alfa Inc. (hereinafter referred to as Defendant) under Art. 267 of The
Functioning of the European Union (hereinafter referred to as TFEU). The same will be
elaborated in the following sub-issues.
1.1 Relevant Market of Alfa Plays an Important Role in Establishing its Dominance.
2. In order to establish the dominant position of the Defendant in the market, the Claimant would
like to bring in the concept of relevant market of Alfa app store, an application store as a
platform service is likely to be considered an information society service rather than electronic
communication network. This approach was observed by the Hon’ble Court of Justice in the
case of Google v. Louis Vuitton1. Identification of the relevant market usually includes both
product market and geographic market for the purposes of competition law.2. The relevant
market for Alfa will be construed to include (A) the relevant product market and (B) the
concerned geographic market.
1.1.1 Relevant Product market for Alfa in the current proceeding

3. The Court in the case of Continental Can v. Commission 3 considered that“...the definition of
the relevant market is of essential significance, for the possibilities of competition can only be
judged in relation to those characteristics of the products in question by virtue of which those
products are particularly apt to satisfy an inelastic need and are only to a limited extent
interchangeable with other products...”
4. The observation of the Court was reiterated by the Commission when it held that all the
products or services which are regarded as interchangeable or substitutable by the consumer will
be regarded as substitutable. The characteristics, prices and intended use will constitute the
relevant product market4.The relevant product market extends to smartphones, App
1
C-236/08 Google v Louis Vuitton [2010] ECJ 2010 I-02417
2
‘Commission Notice on the Definition of Relevant Market for the Purposes of Community Competition Law’
(Commission Report) COM [1997] C 372 final.
3
Case 6-72 Europemballage Corporation and Continental Can Co. v. Commission of the European
Communities [1973] 1973/00215/ECR,
4
Commission, Official Journal of European Commision (Notice) COM [1997] C 372 final, P. 0005 - 0013, at
para. 7
1
development and operating systems which do not have easy substitutions for consumers who
already own Alfa smartphones given the cost of transition.
1.1.2 Relevant geographical market for Alfa in the current proceedings

5. The relevant geographical market for the Defendant as far as the current proceedings are
concerned, is restricted to the European region 5. Defendant enjoys a whopping 70% of all
smartphones sold in the mentioned region. The App distribution mechanism of Alfa is
facilitated through an integrated operating system (not licensed or used by third parties) and an
exclusive inbuilt App store.6 The result of applying this paradigm is to identify a group of
products and a geographic area with respect to which sellers could exercise market power if
they were able to coordinate their actions perfectly so as to act like a monopolist entity.
1.2 Alfa Inc. Qualifies to Fit the Notion of Dominance Under the Ambit Of European
Competition Laws
6. The Claimant humbly submits that subsequent to the determination of the relevant market, the
dominant position of the Defendant seeks consideration of the Hon’ble Court in order to
establish an abuse under Art. 102 of the TFEU7. The legal definition of a dominant position in
EU law was given by the Hon’ble Court of Justice in the case of United Brands8, as "a position
of economic strength enjoyed by an undertaking which enables it to prevent effective
competition being maintained on the relevant market by affording it the power to behave to an
appreciable extent independently of its competitors, its customers and ultimately of its
consumers". It is the presence of market power which can determine whether a given business
strategy is a precompetitive, benign or anticompetitive.
1.2.1 Alfa App store lacks suitable substitutes in the market.

7. The Claimant seeks to refer that when substitutability 9 is limited; the dominant position of the
company is strengthened as set out in the European Commission’s guidelines 10. In reference to
the 2004 Microsoft case, whereby the European Commission assessed each of its dimensions
noting that the emergence of competitors did not affect the profitability of the company or its
5
Problem Question, p.1 para 3.
6
Problem Question, p. 2 para 5.
7
Problem Question p. 1 para 4
8
Case 85/76 Hoffmann-La Roche v. Commission , [1979] 1979/00461
9
Case C-27/76 United Brands Company v. Commission, [1978] ECLI/EU/C/1978/22, , para. 250.
10
‘European Commission, Guidance on the Commission’s Enforcement Priorities in Applying Art. 82 of the
EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings’ [2009] OJ C 45,, p. 7–20
2
business model. Further the Commission noticed that Microsoft’s direct customers had few
alternative suppliers and they would be subjected to exemplary switching costs in case of a
change.11
8. Similarly, the Defendant’s position in the instant case lacks alternative platforms and Alfa App
store stands as the exclusive medium to the Alfa Smartphone users which constitutes a
percentage as high as 70% of the phones sold in Europe. 12 Alfa app store is the sole mode of
App distribution to the Alfa users.13 The Alfa smartphone users cannot switch to cheaper options
unless they incur huge switching costs as they have made a significant financial commitment in
terms of hardware acquisition cost.
1.2.2 Entry Barriers to the Alfa app store prevent potential competition
9. It is humbly submitted that one of the common indicators of dominance lies in restricting the
entry of competing platforms from entering the concerned market, which in the instant case is
the digital multi-sided platform of the app store. When consumers are not likely to switch
providers owing to high switching costs or the need to learn a new system it can be construed to
be a significant barrier to entry.14 Alfa qualifies to be a digital gatekeeper according to the
Digital Markets Act, 202015. It qualifies as Alfa has a strong position as 70% of the market
users in the EU are Alfa Smartphones users using Alfa App Store. The closed ecosystem 16 of
Alfa’s App Store to review and scrutinize every third party App, before admitting the same into
the app store. The fully closed ecosystem of the Defendant prevents App distribution through
any other medium like that of side-loading17. This raises reasonable doubt in the conduct of the
Defendant’s operations since it may conveniently reject any third-party App which may pose
potential competition to its downstream market.18 Alfa stands as the gateway through which
11
‘Competition Policy Roundtables: Evidentiary Issues in Proving Dominance’ ,Organization for Economic
Cooperation and Development [2006] <http://www.oecd.org/competition/abuse/41651328.pdf>.
12
Problem Question, p.1 Para 3
13
Case No. 4:20-cv-05640-YGR Epic Games v Apple [2020] .
14
A Candeub, ‘Behavioral Economics, Internet Search, and Antitrust’ A Journal of Law and Policy for the
Information Society [2014]
15
Commission, Regulation Of The European Parliament And Of The Council The Digital Markets Act:
Ensuring Fair and Open Digital Markets (proposal) COM(2020) 842 final
16
Case No. 4:20-cv-05640-YGR Epic Games v. Apple’ [2020] Kluwer Competition Law.
<competitionlawblog.kluwercompetitionlaw.com/2019/10/15/competition-authorities-to-investigate-mobile-
application-store-dominance/>.
17
Problem Question page 2 para 4
18
Commission, Antitrust: Commission opens investigations into Apple's App Store rules (Press Release)
COM [2020],https://ec.europa.eu/Commission/presscorner/detail/en/ip_20_1073.
3
App developers of third party applications have to go through in order to reach out to the Alfa
smartphone users.
1.2.3 Alfa enjoys considerable market share in Europe.

10. It is further submitted that, market shares is one of the several factors to determine dominant
position of a company19. The Hon’ble Court in Hoffmann-La Roche20 commented that among
several factors “A highly important one is the existence of very large market shares” 21. The
Commission has indicated a firm with a market share of less than 40% is unlikely to be
dominant.22 Against the given cap, the Defendant constitutes a whopping 70% of the
Smartphone sold in Europe.23 Since, the Alfa App store is integrated into Alfa’s own operating
system and Smartphone, the App distribution processed to the Alfa Smartphone users is
facilitated under the ambit of the same market shares.
ISSUE 2 - ALFA’S BEHAVIOUR IS CAPABLE OF CONSTITUTING AN ABUSE UNDER

ART. 102 OF TFEU
11. The Claimant humbly submits before this Hon’ble Court that Alfa’s behaviour is capable of
constituting an abuse of dominance against Sierra under Art. 102 of the TFEU.
2.A - Alfa’s Behaviour Constitutes of Unlawful Refusal to Deal

12. European Commission has laid down three vital conceptual aspects with regard to refusal to
deal, which are Dominance on the part of the company refusing to supply, Anti-competitive
effect and long-lasting consumer harm and lastly objective justification including an assessment
of efficiencies.24 “Long-lasting consumer harm is in general only likely to arise if the refused
product in question is essential for the customers to be able to compete effectively in a
downstream market. This means that the refused product must constitute an objectively
19
Neil Brown, ‘Telecommunications Law: Competition Law and Communications Services’ [2011]
<https://neilzone.co.uk/masters/tel_theme_3_report.pdf>.
20
Case 85/76 Hoffmann-La Roche v. Commission , [1979] 1979/00461
21
Ibid para 39 - 41
22
Commission, Antitrust: Overview European Commission (Procedural Information) COM [2013]
https://ec.europa.eu/competition/antitrust/procedures_102_en.html
UK Office of Fair Trading Guidance, “Abuse of a dominant position: Understanding competition law”,
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/284422/
oft402.pdf.
23
Problem Question, p.1 para 3
24
‘Roundtable on Refusals To Deal, Directorate For Financial And Enterprise Affairs Competition Committee’
[2007] DAF/COMP/WD(2007)100.
4
indispensable input for such competitors, and not merely a particularly suitable or convenient
one”25.
13. Alfa has outrightly refused to distribute Sierra’s applications on the Alfa App store on non-
compliance to unreasonable conditions which amounts to an unlawful refusal to deal against
Sierra26. Sierra’s applications were earlier distributed on the Alfa App store in lieu of a 30%
Commission and adherence to Alfa’s Developer Agreements. Sierra was then coerced into
changing its tactics to meet requirements of Alfa’s modified developer agreement wherein the
opposite stands resulted in Alfa removing Sierra’s apps and hence engaging in unlawful refusal
to deal. The Claimants refer to the case of Hanover Shoe, Inc. v. United Shoe Machinery
Corp.27, wherein it held that “refusal to sell…was an instrument of monopolization”.
14. The primary competition concern as result of a refusal to supply is that competition will be
distorted in a market downstream from the (upstream) market for the refused input. However,
Art. 102 may more rarely constitute a basis for intervention where a refusal to supply also
results in an anti-competitive impact on the upstream market where the company refusing to
supply is dominant28. Sierra has lost considerable business due to removal from Alfa App Store.
2.A.1 Refusal to grant access to essential facilities

15. The Complainant humbly submits before the Hon’ble Court that Alfa has refused to grant access
to essential facilities to Sierra. The European Commission defines an essential facility as
“facility or infrastructure which is essential for reaching customers and/or enabling
competitors to carry on their business, and which cannot be replicated by any reasonable
means”29
16. Further, in Oscar Bronner it was held that, “refusal to grant access to essential facilities was
explained as a refusal to grant access to such an essential facility which eliminates competition
25
Case 7/97 Oscar Bronner GmbH & Co KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co K,
Mediaprint Zeitungsvertriebsgesellschaft mbH & Co KG and Mediaprint Anzeigengesellschaft mbH & Co
[1998], ECR I-7791
26
Hou Liyang, ‘Refusal to Deal within EU Competition Law’ [2010] <https://ssrn.com/abstract=1623784
http://dx.doi.org/10.2139/ssrn.1623784>, accessed on January 06, 2020.
27
Hanover Shoe, Inc v United Shoe Machinery Corp [1968] 392 U.S. 481 .
28
‘Roundtable on Refusals To Deal, Directorate For Financial And Enterprise Affairs Competition Committee’
[2007] DAF/COMP/WD(2007)100.
29
Commission, Notice on the Application of the Competition Rules to Access Agreements in the
Telecommunications Sector’ (Notice) COM OJ C 265, 22.8.1998, p. 2–28.
5
in a downstream market and which is not objectively justified is prohibited by Art. 82 (presently
Art. 102.)”30
2.A.2 Sierra’s Privacy Policies in conformity with The EU GDPR Rules

17. The European Union General Data Protection Rules (hereinafter referred to as EU GDPR) were
brought in to ensure that user data was protected. The Claimant’s privacy policies are not in
violation of the EU GDPR rules and that the Claimant has taken every precautionary measure to
protect the data of its users. The unlawful refusal to deal on the pretext of Sierra’s Privacy
Policies not being in conformity with the EU GDPR rules has no standing. However, the
Claimant contends that even if its privacy policies are reviewed, the Claimant has end user
license agreements (hereinafter referred to as EULA) in place which are in conformity to the
EU GDPR rules.
2.A.3 Alfa is an intermediary and is relieved of any privacy obligations that arise between Sierra
and its consumers
18. The EULA is a recognized agreement by the EU and therefore will suffice as it is in conformity
with the EU GDPR rules. Sierra has signed the EULA with all its users as per which it has
obtained the consent of its users to use their data and share it with third parties to fund its more
limited free services by providing targeted advertising on behalf of advertisers to its users.
19. Art. 13(1)(c) of the EU GDPR provides for Information to be provided where personal data
are collected from the data subject 31. The Claimant contends that it had disclosed the purpose
of processing personal data of its consumers which was for targeted advertising which further
supported their business and it always ensures that any third parties with which it shares such
data have equally strong privacy policies as its own32. Alfa is an intermediary, which relieves it
from any privacy obligations that arise between Sierra and its consumers33.
30
[1998], ECR I-7791.
31
.EU General Data Protection Regulation (GDPR): Regulation (EU) 2016/679 of the European Parliament
and of the Council of 27 April 2016
32
Problem Question , page 3 para 15.
33
Illinois Brick Co v Illinois [1971] 431 U.S. 720
6
2.B Alfa’s Behaviour Constitutes Unlawful Self-Preferencing, Margin Squeeze and Unlawful
Leveraging
20. The Claimant seeks to establish that the conduct of the Defendant attracts Abuse of its
Dominant position under Art. 102 of the TFEU. This has been bifurcated into the following
sub-issues.
2.B.1 Alfa has engaged in unlawful self-preferencing of its downstream product.

21. It is humbly submitted that the Defendant has engaged in unlawful self-preferential treatment in
uplifting its downstream application Alfa Music. The Alfa Smartphones come with an
integrated operating system and in-built downstream applications. According to the Special
Advisors Report of 201934, the concept of abuse under Art. 102 of TFEU should be extended to
self-preferencing by digital platforms that constitute an essential facility. 35, but also wherever it
may result in leveraging of market power that cannot be justified by a procompetitive
rationale36.
22. In the landmark decision of Google Shopping Case37, the European Commission concluded that
Google had abused its dominant position in search engines. Systematic preferential placement
of Google’s own comparison-shopping service and demotion of rival comparison shopping
services in Google search results. The Commission argued that Google’s self-preferencing
conduct foreclosed competing comparison shopping sites from the market, which reduced
consumer choice38.
2.B.2 Alfa’s Upstream charge of 30% for access to the App store for third-party music streaming
Apps is an attempt towards margin squeeze of its competitors.
23. The Defendant has also attracted the theory of margin squeeze under Art. 102 of the TFEU by
the charging of a Commission fee of 30% from the Claimant for access to the Alfa App store.
This involves a dominant supplier charging downstream competitors a higher price than its own
downstream operation. This type of conduct can therefore raise rivals’ costs, forcing them to
34
J Crémer, ‘Competition Policy for the Digital Era’ [2019]
<https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf>.
35
[1998] ECR I-7791, para. 41
36
J Crémer, ‘Competition Policy for the Digital Era’ [2019]
<https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf>.
37
Case AT.39740 Google Search (Shopping) [2018] C 9/08
38
ibid.
7
raise prices.39 The Claimant does not enjoy the same degree of integration and interoperability
like AlfaMusic, as the downstream market of Alfa (AlfaMusic), is exempted from the
Commission fee apart from the more advantageous terms of operation offered to them. The
Commission’s assessment of margin squeeze cases affected by dominant undertakings comes
under the purview of Art. 102 of TFEU40.
2.B.3 Alfa has leveraged its Dominant position in the smartphone market to get a stronghold in the
music-streaming industry
24. In digital markets with entry barriers, tying can also be a strategy to prevent entry by
competitors. This can arise when two complementary products cannot be used separately. A
similar strategy was used by the Defendant to leverage a monopolist position (or a position of
strong market power) in one market to enter and subsequently foreclose competition in another
market. This strategy is called “platform envelopment” 41. Alfa is using their own operating
system and App Store which heavily features its own apps like AlfaMusic App instead of Apps
by third parties. The Digital Markets Act prohibit such behaviour as “treat services and
products offered by the gatekeeper itself more favourably in ranking than similar services or
products offered by third parties on the gatekeeper's platform42”
25. In a Commission investigation, the Android Case43, the Commission sanctioned Google in 2018
for its various anticompetitive practices like the pre-installation of apps harming competition by
reducing the incentive for both manufacturers and users. The European Commission also
initiated proceedings against Microsoft. In the EU, the focus was on refusal to supply
interoperability information and technical tying and to allow use of that information to rivals in
39
S Salop and T Krattenmaker, ‘Anticompetitive Exclusion: Raising Rivals’ Costs To Achieve Power over
Price’ [1986]96 Yale Law Journal <https://digitalcommons.law.yale.edu/cgi/viewcontent.c gi?
Art.=7043&context=ylj>.
40
Case-280/08P, Deutsche Telekom v Commission [2010] ECJ/ 2010:603; Case C-295/12 Téléfonica v
Commission ECJ EU:C:2014:2026; Slovak Telekom EU:T:2018:929.; Konkurrensverket v TeliaSonera
EU:C:2010:483.
41
M Van Alstyne, T Eisenmann and G Parker, ‘Platform Envelopment’Strategic Management Journal. [2011]
32
42
Commission, Regulation Of The European Parliament And Of The Council The Digital Markets Act:
Ensuring Fair and Open Digital Markets (proposal) COM(2020) 842 final
43
Commission ‘Commission Fines Google €4.34 Billion for Illegal Practices Regarding Android Mobile
Devices to Strengthen Dominance of Google’s Search Engine’ [2018]
<https://ec.europa.eu/Commission/presscorner/detail/en/IP_18_4581>, Google Andrioid Case [2018], See
also F Etro and C Caffarra, ‘On the Economics of the Android Case’European Competition Journal.
[2017] 13
8
the work group server operating system market. This refusal prevented rivals from developing
and distributing products that would compete with Microsoft’s products in this market.44
2.B.4 The conduct of Alfa has deprived the consumers of their true choices.
26. The Claimant highlights that dominant firms are considered to have a “special responsibility” by
virtue of their position in the market45 which the Defendant has failed to Perform. The self-
preferential behaviour of the Defendant forces the consumers to go for the choices that would be
beneficial to the Defendant’s Upstream market power rather than benefit of the consumers. The
same is adversely affecting consumer choice, and the abuse of procedures (including the lack of
transparency), all of which have a particular relevance in the present case.
2.C. Excessive Pricing is Contrary to Art. 102 TFEU

27. Claimant humbly submits that Alfa is abusing its dominant position in the European Market by
levying excess pricing on the music and video streaming Apps provided by the Claimant
provided through the Alfa App store.
2.C.1 Alfa charging excessive pricing on the Apps of media and music streaming services offered
by the Claimant under Art. 102(A) of TFEU.
28. Claimant humbly submits that Alfa is charging excessively on the media and music streaming
services that are provided in the Alfa app store by the Claimant under Art. 102 (A) TFEU which
“provides that abuse by a dominant undertaking shall include directly/indirectly imposing
unfair purchase/selling prices or other unfair trading conditions” 46 which is being determined
as excessive pricing47. It is been held in the case of Parke Davis that the principle of dominant
position in levying excess prices from its competitors or consumers is prohibited 48 and the
44
Case-T-201/04 Microsoft v Commission [2007] ECLI:EU:T:2007:289
45
W. Sauter, ‘A Duty of Care to Prevent Online Exploitation of Consumers? Digital Dominance and Special
Responsibility in EU Competition Law’ [2019] <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3353280>.
46
Treaty on the Functioning of the European Union , [2009], OJ C 326 p. 47–390.
47
Case C-27/76 United Brands Company v. Commission, [1978] ECLI/EU/C/1978/22, Case C-177/16,
Latvijas Autoru apvienība v Konkurences padome [2017] ECLI:EU:C:2017:689 . EWHC 1009, Napp
Pharmaceutical Holdings Ltd. v. Dr. Reddy Laboratories, UK [2020]
48
Case 24-67 Parke, Davis and Co. v Probel, Reese, Beintema-Interpharm and Centrafarm [1968]
ECLI:EU:C:1968:11
9
principle of unfair price would be abusive49. Art. 102 TFEU focused on preserving competition
on the market by preserving the power of other players to compete by protecting competitors.50
29. In the current proceedings, Alfa who has a dominant position in the European market, as well as
by imposing a fee of 30%51 on the Claimant and not on its in-app developers such as Alfa
Music, imposing unfair trading conditions on the Claimants.
2.C.2 Alfa is applying unfair conditions on the Claimants putting them at a competitive
disadvantage and constituting an exclusionary abuse of its dominant position.
30. Claimant humbly submits that Alfa is applying unfair conditions on the Claimant through
exclusionary power of its dominance which comes under the purview of Art. 102 TFEU52,
Excessive pricing is prohibited53 as per the European laws which has been established in the
Google AdSense Case when Google imposed a number of restrictive clauses in contracts with
third-party websites which prevented Google’s rivals from placing their search advertisements
on these websites.54 Exclusionary of dominance was also indicated in the case where Google
allegedly abused its dominant position by giving illegal advantage to own comparison shopping
service55. Alfa has clearly shown exclusionary abuse of dominance through where a dominant
company strategically seeks to exclude its rivals and thereby restricts competition by unlawful
leveraging by collecting 30% fee which is considerably higher than the charges made by other
app stores or operating systems and absolutely not taking any charges for its in app store (Alfa
Music) under Art. 102 (C).
2.D - Alfa’s Behaviour Constitutes a Form of Discriminatory Pricing Contrary to Art. 102 Of
TFEU
31. The Claimant humbly submits that Alfa is practicing discriminatory activities towards Sierra
and various other Music and media streaming services under Art. 102 of the TFEU. The
49
Case 26-75 General Motors Continental NV v Commission of the European Communities.[1975] ECR
1975 -01367 para 12.
50
Case-T-201/04 Microsoft v Commission [2007] ECLI:EU:T:2007:289
51
Problem Question, p.3 para 13.
52
P Akman, ‘Searching for the Long-Lost Soul of Art. 82 EC’ [2007] <http://ssrn.com/abstract=977221>.
53
Commission, Guidance on the Commission’s Enforcement Priorities in Applying Art. 82 of the EC Treaty to
Abusive Exclusionary Conduct by Dominant Undertakings’ (Communication) [2009] OJ C 45, 24.2.2009, p.
7–20
54
Case AT.40411 Google Adsense [2019].
55
Case-280/08 Deutsche Telekom v Commission [2010] ECJ:603‘Commission Fines Google €4.34 Billion for
Illegal Practices Regarding Android Mobile Devices to Strengthen Dominance of Google’s Search Engine’
[2018], see also Apple v Pepper (US Supreme Court), 587 U. S. ____ (2019).
10
arguments shall be aimed at providing the Hon’ble Court as to how discriminatory acts were
conducted against Sierra which are discussed in the following sub-issues.
2.D.1 Alfa charges 30 % of any in-app purchases which is higher than any other App Store.
32. The Claimant submits that Alfa charging 30% is a discriminative charge imposed on the app
developers of Music and media streaming services as opposed to other App Stores. In the
landmark case of Apple v. Pepper56, the Court held that Apple’s 30% charge was an anti-
competitive act and hence allowed the users to sue the company. It is contended by the
Claimants that Alfa is engaging in a similar tactic with a view of creating a monopolistic
competition which puts its competitors at a competitive disadvantage. In the Digital case, the
Commission considered that Digital, a dominant operator in the field of software maintenance
services and other hardware services had abused its dominant position by engaging in
discriminatory practices and tied sales57.
33. It is put forth before the Hon’ble Court that any discriminative practice of charging more for the
in-app purchases has also been noted as a form of discrimination by the European Union’s
Competition Commission in a complaint by Microsoft against Apple58.
2.D.2 Retail shopping Apps are not charged for any in-app purchases.
34. It is humbly contended by the counsels of the Claimants that Alfa is discriminating its
competitors in Media and music streaming services so as to favour its own App i.e., AlfaMusic
and hence has not charged Retail shopping Apps as the Defendant has no intention to compete
in the latter industry. In the landmark case of Serviços de Comunicações e Multimédia SA v
Autoridade da Concorrência59, has held that any act that abuses through discriminatory pricing
is a form of discrimination if it ‘tends to distort competition’.
35. It is also highlighted by the Claimants that any abuse under Art. 102 shall have an effect on ‘the
costs, profits and any other relevant interest60, it is submitted that due to the acts of Alfa,
56
Ibid
57
XXVIIth Report on Competition Policy – [1997], at §69. See also, L. Ritter and D. Braun, supra note 28 at
p.452, See also Commission Decision 2000/74 of 14 July 1999, Virgin/British Airways, JOCE L 30 of 4
[2000], pp.1-24
58
Commission, Antitrust: Commission opens investigations into Apple's App Store rules (Press Release)
COM [2020],https://ec.europa.eu/Commission/presscorner/detail/en/ip_20_1073. Accessed 1 January 2021.
59
C-525/16 Serviços de Comunicações e Multimédia SA v Autoridade da Concorrência [2018]
ECLI/EU/C/2018/270,
60
ibid.
11
Sierra’s profits have been stagnant. This has been the result of the discriminatory tactic of Alfa
to charge highly from the App developers of Music and media streaming services.
2.D.3 AlfaMusic app does not pay the charging fee for any transactions or subscription price within
the app.
36. The Claimants submits that Alfa’s acts are contrary to Art. 102 of the TFEU as they are not
only charging a higher rate of 30 % on in-app purchase of the Claimant but also giving benefits
to their own app, AlfaMusic, who does not pay this fee. Likewise, in GT-Link Case, the Court
found that a public undertaking in a dominant position may commit an abuse if it exempts its
own services, or those of some competitors, from payment in exchange for access to a facility
controlled by it61.
37. Claimants rely on the case decided by the Commission of the European Communities, Eurofix-
Bauco v. Hilti62 wherein it was held that “a selectively discriminatory pricing policy by a
dominant firm designed purely to damage the business of its competitors, whilst maintaining
higher prices for the bulk of its other customers, is both exploitive of these other customers and
destructive of competition.”. It is submitted before the Hon’ble Court that both the excessive
rates and selective pricing tactic against competitor music and media streaming services is
focused on abusing its dominant position in the market by Alfa are contrary to Art. 102 of the
TFEU.
ISSUE 3: EFFECTIVE APPLICATION OF ART. 102 TFEU, CONFERRED UPON THE

NATIONAL COURT TO TAKE MEASURES AGAINST ALFA INC.
38. The Claimant humbly submits that the current proceedings are brought before this Hon’ble
Court under Art. 267 of TFEU and in accordance with Art. 2363 of the Statute of the Court of
Justice.
61
Case C-242/95 GT-Link A/S v De Danske Statsbaner [1997] ECLI:EU:C:1997:376
62
Case T-30/89 Eurofix-Bauco v Hilti [1987] OJ L 65, 11.3.1988 para 81
63
Treaty on the Functioning of the European Union ,OJ C 326 p.[2009], O 47–390 “Cases governed by Art.
267 of the Treaty on the Functioning of the European Union, the decision of the Court or tribunal of a
Member State which suspends its proceedings and refers a case to the Court of Justice shall be notified to
the Court by the Court or tribunal concerned”.
12
3.1 Powers Conferred Upon the National Courts and The European To Uphold Abuse of
Dominant Position by Alfa Under Art. 102 TFEU
39. The Claimant humbly submits before the Hon’ble Court that the powers vested in the National
Courts are given the key job of European challenge arrangement to extensively uphold Art. 101
and 102 and the need for application of European competition law to create an impact among
the states.64 The European Commission is conferred with enforcement powers also to target
dominant undertakings and to penalise their abusive practices65.
40. Regulation 17/62 set up an elaborate administrative enforcement regime, allowing the
Commission to inspect undertakings premises, to seize documents and to impose fines and
periodic penalty payments on those undertakings for having infringed Art. 101 and 102 TFEU
as high as 10% of the undertaking’s global annual turnover. 66 Notice on Cooperation between
National Courts and the Commission67 merely states that infringements of Community
competition rules must be sanctioned by National Courts in the same way as equivalent
infringements of domestic law68.
41. 1st May 2004 onwards under Regulation 1/2003 obliges National competition authorities and
Courts to apply Art.s 101 and 102 TFEU in full and to ensure that those provisions are
interpreted in accordance with the established case law of the Court of Justice and decision-
making practice of the Commission.69 EU adopted Concentration Control Regulation 4064/89,
which has been modified into Regulation 139/2004 70. ECJ held that the rights conferred by
Community law can be relied upon in proceedings before National Courts. 71 Claimants hence
further contend that Alfa has abused its dominant position in the market under Art. 102 TFEU
and the National Court have the conferred powers and jurisdiction under Art. 267 TFEU.
64
Commision, Good Manufacturing Practice (GMP) Guidelines’ Vol 4
<https://ec.europa.eu/health/documents/eudralex/vol-4_en>.
65
EEC Council Regulation 17/62/EEC OJ 13, 21.2.1962, p. 204–211
66
Ibid Art. 15(2)b
67
Commission, ‘Notice on Cooperation between National Courts and the Commission in Applying Art.s 85
and 86 of EEC Treaty’ [1993] OJ C 39, 13.2.1993, p. 6–12
68
Ibid.
69
‘Council Regulation (EC) on the Implementation of the Rules on Competition Laid down in Articles 81 and
82 of the Treaty’ [2003] OJ L 1, 4.1.2003, p. 1–25
70
‘Council Regulation (EEC) of on the Control of Concentrations between Undertakings’ (1989) No 4064/89 ,
see also, Case 6-72 Continental Can v Commission [1973] ECJ,, ECLI:EU:C:1973:22
71
Case 26-62.Van Gend en Loos v Netherlands Inland Revenue Admin [1963] ECLI:EU:C:1963:1 ; Case
6/64 Flamino Costa v ENEL [1964] ECJ 585; Sabine von Colson and Elisabeth Kamann v Land Nordrhein-
Westfalen (1984) 1891 ECR, at para. 28.
13
3.2 National Court has the Power to Regulate Excessive Pricing Policy of Alfa
42. Claimant humbly submits that when a breach is established under Article 102 TFEU by a
decision which allows the Commission to not only oblige the parties to cease anticompetitive
behaviour but also provide certain advantages which have been wrongfully withheld to restore
competition in the relevant market.72 In Commercial Solvents and ICI v Commission 73 it was
held that, to continue supplying an existing customer with a view to avoid the latter being
excluded from the downstream market. Commission could impose obligations ‘to take or to
refrain from taking certain actions’ to bring the infringement to an end and if required 74. The
Court rejected the applicants’ arguments that by ordering them to provide ‘specific supplies’ to
a former customer75 had acted outside the remit of its powers and upheld the obligation imposed
on Commercial Solvents with a view to avoiding the latter being excluded from the relevant,
downstream market.
ISSUE 4 – SIERRA HAS THE RIGHT TO CLAIM DAMAGES FOR INFRINGEMENT

UNDER ART. 102 OF THE TFEU
43. It is humbly submitted before the Hon’ble Bench that “Any business which suffers harm as a
result of a breach of the EU competition rules should be entitled to claim compensation from the
party who caused it. This means that the victims of competition law infringements can bring an
action for damages before the National Courts”.76
4.1 The Victims of Competition Law Infringements Can Bring an Action for Damages Before
the National Courts
44. The victims of competition law infringements can bring an action for damages before the
National Courts.77 The Directive 2014/104, transposed into National law by an order and a
decree of 9 March 201778, formally applies to all practices punishable under Art. 101 and 102
72
Case 7-73 Commercial Solvents and ICI v. Commission (1974) 223 European Commission Reporter; C-
241/91 P and C-242/91 P. RTE v Commission (1991) II–485 European Commission Reporter, especially
paras 70-73; ITP v Commission (1995) I–743 European Commission Reporter, especially paras 91, 93-94.
73
ibid
74
Ibid, Article 7 Regulation 1/2003
75
C-441/07 P.Alrosa v Commission (2007), ECR 2010 I-05949 para 102-103;
Case 7-73 Commercial Solvents and ICI v Commission (1974) 223 European Commission Reporter.
76
Commission, Antitrust: Overview European Commission (Procedural Information) COM [2014]
https://ec.europa.eu/competition/antitrust/procedures_102_en.html.
77
Ibid.
78
VS Carval, ‘Les actions en dommages-intérêts des victimes de pratiques anticoncurrentielles’ [2017] Order
No. 2017-303.
14
of the TFEU and their National equivalents. This issue is important where the harm is ongoing,
as the longer the harm has continued, the greater the amount of damages 79 Sierra claims
damages for loss of profit arising from reduced sales since 1 October 2020 and, prior to that a
reduced margin and sales80.
45. The App of the Claimant was removed from the Alfa App store and the action was justified by
citing the Claimant’s alleged non-conformity to the EU GDPR Rules while in reality the
Claimant takes privacy concerns very seriously. Even prior to the unreasonable removal, the
Defendant has engaged in various anti-competitive practices. The CJEU in the case of Tibor-
Trans, held that damage resulting from additional costs incurred because of artificially high
prices is a direct damage, which in principle, provides a basis for the jurisdiction of the Courts
of the Member State in which it occurred81.
46. In 2001, in Courage and Crehan, the CJEU established the principle: “The full effectiveness of
Art. 85 of the Treaty [now Art. 101 TFEU]... would be put at risk if it were not open to any
individual to claim damages for loss caused to him by a contract or by conduct liable to restrict
or distort competition”82
4.2 Alfa Abusive Conduct has Distorted Consumers' Choices And Interests.
47. The objective of Art. 81(1) (Presently 101 of TFEU) is to protect competition on the market as a
means of enhancing consumer welfare and of ensuring an efficient allocation of resources.
Competition and market integration serve these ends since the creation and preservation of an
open single market promotes an efficient allocation of resources throughout the community for
the benefit of consumers”83. The Courts observed that the companies had abused the economic
power they enjoyed under their copyright by unjustifiably preventing the appearance of a new
product for which there was potential consumer demand. The same principle has been reiterated
79
Laborde, Jean-François. Concurrences. [2020] https://www.laborde-advisory.com/PDF/Minds%20&
%20Hearts%20-%20How%20Courts%20have%20assessed%20overcharges.pdf
80
Problem Questions 3, para 13
81
Regulation (EU) No 1215/2012 of The European Parliament and of The Council of 12 December 2012 on
Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters’ [2012] No
1215/2012 <https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:351:0001:0032:en:PDF>.
82
C-453/99 Courage and Crehan [2001] ECLI:EU:C:2001:465, paragraph 26; see also C-295/04 to C-
298/04.Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA EU:C:2006:461 ECLI, para 60; C-360/09
Pfleiderer AG v Bundeskartellamt EU:C:2011:389 ECLI, para 28; C 199/11 Europese Gemeenschap v Otis
NV and Others (2012) EU:C:2012:684 ECLI, para 41; C 536/11 Bundeswettbewerbsbehörde v Donau
Chemie AG and Others (2013) EU:C:2013:366 ECLI, para 21; C-577/12 Kone AG and Others v ÖBB-
Infrastruktur AG (2014) EU:C:2014:1317 ECLI, para 21.
83
Katalin Judit Cseres, Competition Law and Consumer Protection Kluwer Law InterNational [2005].
15
by the ECJ in the Magill case84 and recently reconfirmed in the IMS Health case85 by stating
that a new product must not be denied to consumers because of the refusal to license by the
dominant enterprise.
84
C-241/91 P and C-242/91,Radio Telefís Éireann (RTE) v Commission (Magill) (1995) EU:C:1995:98 ECLI
and Independent Television Publications Ltd (ITP) v Commission (Magill) [1995] 743 ECR.
85
C-418/01, IMS Health GmbH & Co OHG v NDC Health GmbH & Co KG [2004] EU:C:2004:257 ECLI.
16
SUMMARY OF ARGUMENTS
ISSUE 1: EVALUATING THE DOMINANT POSITION OF ALFA INC. IN THE MARKET OF

MOBILE PLATFORMS
Claimant humbly submits before the Hon’ble Court that it seeks to refer the current proceedings
before the Hon’ble Court of Justice owing to the abusive conduct of dominance of Alfa Inc. under
Article 102 of TFEU. Claimant has contended the following issues to establish the dominant
position of Alfa under Article 102 TFEU (1.1) Relevant Market Of Alfa Plays An Important Role In
Establishing Its Dominance (1.2) Alfa Inc. qualifies to fit the notion of dominance under the ambit
of European Competition laws
ISSUE 2: ALFA BY ITS CONDUCT HAS ABUSED ITS DOMINANT POSITION UNDER ARTICLE 102
OF THE TFEU
Claimant humbly submits before the Hon’ble Court that assuming Alfa’s dominant position is
Alfa’s behaviour capable of constituting:
2.A. In determining whether an unlawful refusal to deal has been committed by Alfa which should
be attributed to where Claimant’s privacy policies are in violation of the EU GDPR rules. Claimant
contends that Alfa is engaging in unlawful refusal to deal and refusal to grant access to essential
facilities. Claimant further contends that their privacy policies are not violative of EU GDPR Rules
and states that Alfa is an intermediary and is relieved of any privacy obligations that arise between
Sierra and its consumers. Claimant also further contends that their privacy policies are in
conformity with the EU GDPR rules.
2.B. Claimant humbly submits before the Hon’ble Court that Alfa’s behaviour constitutes unlawful
self-preferencing, margin squeeze and unlawful leveraging. The Claimant seeks to establish that the
conduct of the Defendant attracts Abuse of its Dominant position under Article 102 of the TFEU by
contending the following sub issues A) Alfa has engaged in unlawful self-preferencing of its
downstream product. B) Alfa’s upstream charge of 30% for access to the App store for third-party
music streaming Apps is an attempt towards margin squeeze of its competitors. C) Alfa has
leveraged its Dominant position in the smartphone market to get a strong hold in the music-
streaming industry D) The conduct of Alfa has deprived the consumers of their true choices.
2.C. Claimant humbly submits that Alfa is abusing its dominant position in the European Market by
levying excess pricing on the music and video streaming Apps provided by the Claimant provided
through the Alfa App store. Claimant contends the following sub issues: A) Alfa charging excessive
VIII
pricing on the Apps of media and music streaming services offered by the Claimant under Article
102(A) of TFEU B) Alfa is applying unfair conditions on the Claimants putting them at a
competitive disadvantage and constituting an exclusionary abuse of its dominant position.
2.D. The Claimant humbly submits that Alfa is practicing discriminatory Pricing towards Sierra
and various other Music and media streaming services under Article 102 TFEU. Claimant further
contends the following issues A) Alfa charges 30 % of any in-app purchases which is higher than
any other App Store. B) Retail shopping Apps are not charged for any in-app purchases C) Alfa
Music does not pay the charging fee for any transactions or subscription price within the app
ISSUE 3: EFFECTIVE APPLICATION OF ARTICLE 102 TFEU, CONFERRED UPON THE
NATIONAL COURT TO TAKE MEASURES AGAINST ALFA INC.
Claimants humbly submit before the Hon’ble Court the current proceedings are brought before this
Hon’ble Court under Article 267 TFEU and in accordance of Article 23 of the Statute of the Court
of Justice. Claimant further contends that National Courts are given the key job of European
challenge arrangement to extensively uphold Article 101 and 102 explained in the following sub-
issues A) Powers conferred upon the National Courts and the European to uphold abuse of
dominant position by Alfa under Article 102 TFEU B) National Court has the power to regulate
excessive pricing policy of Alfa.
ISSUE 4: SIERRA HAS THE RIGHT TO CLAIM DAMAGES FOR INFRINGEMENT UNDER ARTICLE
102 TFEU
Claimants humbly submit before the Hon’ble Court that a breach of the EU competition rules
should be entitled to claim compensation from the party who caused it and the victims of
competition law infringements can bring an action for damages before the National Courts.
Claimant has further contended the following sub issues A) The victims of competition law
infringements can bring an action for damages before the National Courts B) Alfa abusive conduct
has distorted consumers' choices and interests.
IX
LIST OF REFERENCES
LIST OF REFERENCES
CASE LAWS
1. Continental Can v. Commission ………………………………………………………….1

2. United Brands v. Commission …………………………………………………………....1
3. Epic Games v. Apple ……………………………………………………………………..3
4. Hoffmann-La Roche v. Commission ……………………………………………………. 4
5. Oscar Bronner GmbH & Co. KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH &
Co. K, Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG and Mediaprint
Anzeigengesellschaft mbH & Co. KG ……………………………………………………5
6. Hanover Shoe, Inc. v. United Shoe Machinery Corp……………………………………..5
7. Illinois Brick Co. v. Illinois ……………………………………………………………...6
8. Google Shopping Case ……………………………………………………………………7
9. European Commission Decision in Case AT.39740 ……………………………………...7
10. P, Deutsche Telekom v. Commission …………………………………………………….8
11. P, Téléfonica v. Commission ……………………………………………………………..8
12. Slovak Telekom …………………………………………………………………………..8
13. Konkurrensverket v. TeliaSonera ………………………………………………………...8
14. Case T-201/04 …………………………………………………………………………….9
15. Parke Davis ……………………………………………………………………………...10
16. Apple v. Pepper ………………………………………………………………………….11
17. Digital case……………………………………………………………………………….11
18. Serviços de Comunicações e Multimédia SA v Autoridade da Concorrência …………..12
19. GT-Link A/S v De Danske Statsbaner …………………………………………………..12
20. Eurofix-Bauco v. Hilti …………………………………………………………………..12
21. Europemballage Corporation and Continental Can Company Inc. v Commission of the
European Communities ……………………………………………………………….....13
22. Van Gend en Loos v. Netherlands Inland Revenue Admin ……………………………..13
23. Flamino Costa v. E.N.E.L ……………………………………………………………….13
24. Sabine von Colson and Elisabeth Kamann v. Land Nordrhein-Westfalen ……………..13
25. Commercial Solvents and ICI v Commission …………………………………………...14
26. RTE v Commission ……………………………………………………………………...14
X
LIST OF REFERENCES
27. RTE and ITP v Commission …………………………………………………………….14

28. Alrosa v Commission ……………………………………………………………………14
29. Commercial Solvents and ICI v Commission …………………………………………...14
30. P Radio Telefís Éireann (RTE) and Independent Television Publications Ltd (ITP) v.
Commission (Magill) ……………………………………………………………………16
31. IMS Health GmbH & Co. OHG v. NDG Health GmbH & Co. KG …………………….16
LEGISLATIONS
1. The Digital Markets Act …………………………………………………………………3

2. European Union General Data Protection Rules ………………………………………...6
3. Treat on the Functioning of the European Union ………………………………………..9
4. Council Regulation (EEC) No. 4064/89 ………………………………………………..14
EUROPEAN COMMISSION
1. Official Journal C 372, 09/12/1997 P. 0005 - 0013

2. European Commission, Guidance on the Commission's enforcement priorities in applying
Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings. 2
3. OECD (2006)- Competition Policy Roundtables: Evidentiary Issues in Proving Dominance
………………………………………………………………………………..3
4. European Commission, “Antitrust procedures in abuse of dominance (Article 102 TFEU
cases)” …………………………………………………………………………………….4
5. ROUNDTABLE ON REFUSALS TO DEAL, DIRECTORATE FOR FINANCIAL AND
ENTERPRISE AFFAIRS COMPETITION COMMITTEE ……………………………..4
6. Notice on the application of the Competition Rules to access agreements in the
telecommunications sector ………………………………………………………………..5
7. Report by J. Crémer et al., Competition Policy for the digital era ……………………….7
8. European Commission Press Release: Antitrust: Commission fines Google €4.34 billion for
illegal practices regarding Android mobile devices to strengthen dominance of Google's
search engine ……………………………………………………………………8
9. XXVIIth Report on Competition Policy ………………………………………………..11
10. Antitrust: Commission opens investigations into Apple, EUROPEAN COMMISSION -
EUROPEAN COMMISSION …………………………………………………………………11
XI
LIST OF REFERENCES
11. Guidelines 1/2003 ……………………………………………………………………….13

12. Notice on Cooperation between National Courts and the Commission in ApplyingArticles
85 and 86 of EEC Treaty ………………………………………………………………..13
13. European Commission, Competition: Antitrust procedures in abuse of dominance ……14

14. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12
December 2012 on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters…………………………………………………………………15
JOURNALS
1. Official Journal- Commission Notice on the definition of relevant market for the purposes
of Community competition law ………………………………………………...1
2. A Journal of Law and Policy for the Information Society- Behavioral Economics, Internet
Search, and Antitrust ……………………………………………………………………...3
3. The Yale Law Journal- Krattenmaker, T. and S. Salop (1986), “Anticompetitive Exclusion:
Raising Rivals’ Costs To Achieve Power over Price” …………………………………...8
4. Strategic Management Journal- Eisenmann, T., G. Parker and M. Van Alstyne (2011),
“Platform Envelopment”…………………………………………………………………..8
5. European Competition Journal- Etro, F. and C. Caffarra (2017), “On the economics of the
Android case”………………………………………………………………………..……8
6. Kluwer Law InterNational, The Hague- Cseres, Katalin Judit, Competition Law and
Consumer Protection …………………………………………………………………….16
RESEARCH PAPERS
1. Telecommunications law: Competition law and communications services- Neil Brown ..4
2. Refusal to Deal within EU Competition Law- Hou, Liyang ……………………………..5
3. Sauter, W. (2019), A Duty of Care to Prevent Online Exploitation of Consumers? Digital
Dominance and Special Responsibility in EU ……………………………………………9
4. P. Ibanez Colomo, The Law on Abuses of Dominance and the System of Judicial
Remedies ...
…………………………………………………………………………………….…....13
XII

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HSF-KCL COMPETITION LAW MOOT 2021

TEAM CODE – 3.9-02

HERBERT SMITH FREEHILLS COMPETITION LAW MOOT 2021

IN THE EUROPEAN COURT OF JUSTICE

SIERRA LTD …. CLAIMANT

ALFA INC. …. DEFENDANT

CASE CONCERING THE INTERPRETATION OF ARTICLE- 102 OF THE TREATY ON

~ MEMORANDUM ON BEHALF OF THE CLAIMANTS~

TABLE OF ABBREVIATIONS …………………………………………………………….….

ISSUE 1: EVALUATING THE DOMINANT POSITION OF ALFA INC. IN THE ARKET

1.1.1 Relevant Product market for Alfa in the current proceeding…………………………………7

1.1.2 Relevant geographical market for Alfa in the current proceedings………………………….8

2.A - Alfa’s Behaviour Constitutes of Unlawful Refusal to Deal.........................................10

2.A.1 Refusal to grant access to essential facilities………………………………………………..11

2.B.1 Alfa has engaged in unlawful self-preferencing of its downstream product…………………13

ISSUE 4 – SIERRA HAS THE RIGHT TO CLAIM DAMAGES FOR INFRINGEMENT

ABBREVIATIONS FULL NAME

Claimant Sierra Ltd.

Defendant Alfa Inc.

EEC European Economic Community

ECJ European Court of Justice

ECLI European Case Law Identifier.

ECR European Court Reports

EULA End User License Agreement

GDPR General Data Protection Regulation

TFEU Treaty for the Functioning of the European

OECD The Organisation for Economic and

BACKGROUND OF THE PARTIES.

MUSIC STREAMING APP

THE DEVELOPER AGREEMENT

REMOVAL OF SIERRA’S APP FROM ALFA APP STORE

ISSUE 1: EVALUATING THE DOMINANT POSITION OF ALFA INC. IN THE MARKET

1.1.1 Relevant Product market for Alfa in the current proceeding

1.1.2 Relevant geographical market for Alfa in the current proceedings

1.2.1 Alfa App store lacks suitable substitutes in the market.

1.2.3 Alfa enjoys considerable market share in Europe.

ISSUE 2 - ALFA’S BEHAVIOUR IS CAPABLE OF CONSTITUTING AN ABUSE UNDER

2.A - Alfa’s Behaviour Constitutes of Unlawful Refusal to Deal

2.A.1 Refusal to grant access to essential facilities

2.A.2 Sierra’s Privacy Policies in conformity with The EU GDPR Rules

2.B.1 Alfa has engaged in unlawful self-preferencing of its downstream product.

2.C. Excessive Pricing is Contrary to Art. 102 TFEU

ISSUE 3: EFFECTIVE APPLICATION OF ART. 102 TFEU, CONFERRED UPON THE

ISSUE 4 – SIERRA HAS THE RIGHT TO CLAIM DAMAGES FOR INFRINGEMENT

ISSUE 1: EVALUATING THE DOMINANT POSITION OF ALFA INC. IN THE MARKET OF

1. Continental Can v. Commission ………………………………………………………….1

27. RTE and ITP v Commission …………………………………………………………….14

1. The Digital Markets Act …………………………………………………………………3

1. Official Journal C 372, 09/12/1997 P. 0005 - 0013

11. Guidelines 1/2003 ……………………………………………………………………….13

13. European Commission, Competition: Antitrust procedures in abuse of dominance ……14

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