DSNLU-CCI (NLUO Team) Appellant (Memo Pundits)

TEAM CODE – DS
604
6TH DSNLU NATIONAL MOOT COURT COMPETITION 2020
BEFORE THE HON’BLE NATIONAL AUTHORITY

FOR COMPETITION IN SOKOVIA
UNDER SECTION 19(1)(A)

OF THE SOKOVIAN KONKURENTSIYA YAZON, 2002
CASE NO. …/2019
COMPSAR………………………………………………………………..INFORMANT
VS
THREEPLUS(3+) ….………………………………………………,,,OPPOSITE PARTY
Clubbed With
CASE NO. …/2019

THREEPLUS(3+)………………………………………………………..INFORMANT
VS
QUICKSILVER………………………………………………………OPPOSITE PARTY
MEMORIAL FOR INFORMANTS

MEMORIAL for INFORMANTS [TABLE OF CONTENTS]
TABLE OF CONTENTS
INDEX OF AUTHORITIES................................................................................................III
STATEMENT OF JURISDICTION................................................................................VIII
STATEMENT OF FACTS....................................................................................................IX
STATEMENT OF ISSUES....................................................................................................X
SUMMARY OF ARGUMENTS..........................................................................................XI
ARGUMENTS ADVANCED..................................................................................................1
I. 3+ HAS VIOLATED SECTION 4 OF THE SKY..................................................................1
A. THE RELEVANT MARKET IS THE MARKET FOR SMARTPHONES IN SOKOVIA...............1
B. 3+ IS IN A DOMINANT POSITION IN THE RELEVANT MARKET......................................2
i. 3+ has the ability to operate independently of the competitive forces prevailing

in the Relevant Market..................................................................................................2
ii. 3+ affected its competitors, consumers and the relevant market in its favour.. .3
C. 3+’S CONDUCT AMOUNTS TO ABUSE OF DOMINANCE.................................................4
i. 3+has engaged in predatory conduct...................................................................4
ii. 3+’s denied the market access to the offline players by way of refusal to deal.. 7
II. THERE MUST BE IMPOSITION OF PENALTY ON 3+.......................................................9
III. QUICKSILVER HAS NOT VIOLATED SECTION 3 OF THE SKY.....................................10
A. THE VERTICAL AGREEMENT IS NOT ANTI- COMPETITIVE IN NATURE.......................10
i. There was no agreement.....................................................................................10
ii. Alternatively, there was no ‘refusal to deal’......................................................11
B. THERE HAS NOT BEEN ANY APPRECIABLE ADVERSE EFFECT ON COMPETITION........11
i. The Access To Quicksilver’s Platform Was Not Indispensable For 3+...........11
ii. The Denial of Access to The Platform Did Not hinder competition in the
relevant market............................................................................................................12
iii. Quicksilver has Objective Justifications for its conduct.................................13
IV. QUICKSILVER HAS NOT VIOLATED SECTION 4 OF THE SKY....................................13
6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

MEMORIAL for INFORMANTS [TABLE OF CONTENTS]
A. THE RELEVANT MARKET IDENTIFIED BY THE DG IS NOT ACCURATE......................13
B. QUICKSILVER IS NOT DOMINANT IN THE IDENTIFIED RELEVANT MARKET..............13
i. Quicksilver Does Not Operate Independently of the Competitive Forces

Prevailing in the Relevant Market.............................................................................14
ii. Presence of other factors....................................................................................14
C. IN ARGUENDO, QUICKSILVER’S CONDUCT DOES NOT AMOUNT TO ABUSE OF
DOMINANT POSITION.........................................................................................................15
i. Protecting commercial interests.........................................................................15
ii. Quicksilver’s conduct was necessary.................................................................15
iii. Quicksilver had the right to exercise its commercial freedom........................16
V. PRINCIPLES OF NATURAL JUSTICE HAVE BEEN VIOLATED.......................................16
A. NO PRELIMINARY CONFERENCE HELD.....................................................................16
B. NO APPROPRIATE REASON BEHIND FINDING A PRIMA FACIE CASE........................17
PRAYER FOR RELIEF......................................................................................................XII

MEMORIAL for INFORMANTS [INDEX OF AUTHORITIES]
INDEX OF AUTHORITIES
STATUTES
The Competition Act, No. 12 of 2003, INDIA CODE (1993), § 19 (7) (f), § 4...........................1
INDIAN CASES
Air Cargo Agents Association of India v. Competition Commission of India, CompLR 2015
(CCI) 683 (India)..................................................................................................................18
Arshiya Rail Infrastructure Ltd v. Ministry of Railways, Case No. 64/2010 (CCI) 2012
(India).....................................................................................................................................3
Ashish Ahuja v. Snapdeal.com, Case No. 17/2014 (CCI) 2014 (India)....................................2
Automobile Dealer Association Hathras U.P v. Global Automobiles Ltd and Ors, Case No.
33/2011 (CCI) 2012 (India).................................................................................................12
Bajaj Auto Ltd v. Director General (I&R), (2008) 12 SCC 122 (India)..................................18
Competition Commission of India v. Steel Authority of India Ltd, (2010) 10 SCC 744........17
Deepak Verma v. Clues Network Online Pvt Ltd, Case No. 34/2016 (CCI) 2016 (India).......2
East India Petroleum Pvt Ltd v. South Asia LPG Company Pvt Ltd, Case No. 76/2011 (CCI)
2018 (India)..........................................................................................................................10
Exclusive Motors Pvt Ltd v. Automobile Lamborghini SPA, Case No. 52/2012 (CCI) 2012
(India)...................................................................................................................................11
Gujarat Industries Power Company Limited v. Competition Commission of India, (2016)
SCC OnLine CompAT 500 (India)......................................................................................17
Jasper Infotech Pvt Ltd (Snapdeal) v. M/s Kaff Appliances (India) Pvt Ltd, Case No. 61/2014
(CCI) 2014 (India)..................................................................................................................2
Jindal Steel & Power Ltd. v. Steel Authority of India Ltd, (2012)107 CLA 278 (CCI)..........17
K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43 (India)...............................................17
Kranti Associates Pvt Ltd & Anr. v. Sh. Masood Ahmed Khan & Ors, (2010) 9 SCC 496
(India)...................................................................................................................................10
Maharashtra State Power Generation Ltd v. Coal India Ltd & Ors, CompLR (2013) 910
(CCI) (India)...........................................................................................................................4
MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd, Case No. 13/2009 (CCI)
2011 (India)..........................................................................................................................10
Meru Travel Solutions Pvt Ltd v. Uber India Systems Pvt Ltd & Ors, Case No. 81/2015
(CCI) 2015 (India)..................................................................................................................1
Neeraj Malhotra Advocate v. Deustche Post Bank Home Finance Limited & Ors, Case No.

05/2009 (CCI) 2010 (India)...................................................................................................3

NSE v. CCI, CompLR 2014 (CompAT) 304 (India).................................................................5
Prasar Bharati v. TAM Media Research Pvt Ltd, CompLR 2016 (CCI) 595 (India)...............3
Prints India v. Springer India Pvt Ltd, Case No. 16/2010 (CCI) 2012 (India)..........................1
Reliance Big Entertainment Ltd v. Karnataka Film Chamber of Commerce, CompLR 2012
(CCI) 0269 (India)................................................................................................................11
Shamsher Kataria v. Honda Sail Cars India Ltd, Case No. 3/2011 (CCI) 2014 (India)............4
Shri M M Mittal v. M/s Paliwal Developers Ltd, Case No. 112/2015 (CCI) 2016 (India).......1
Tamil Nadu Consumer Products Distributors Association v. Fangs Technology Pvt Ltd and
Ors, Case 15/2018 (CCI) 2018 (India)...................................................................................1
FOREIGN CASES
Case C-468/06, Sot. Lelos kai Sia EE v. GlaxoSmithKline AEVE Farmakeftikon Proionton,
formerly Glaxowellcome AEVE, 2008 E.C.R. I-07139 (EU).............................................16
Case C-1001/1/1/01, Napp Pharma. Holding v. Director General of Fair Trading, 2002
EWCA 796 (UK)....................................................................................................................7
Case C-242/95, GT Link v. DSB, 1997 E.C.R. I-4449 (EU).....................................................7
Case C-27/76, United Brands v. European Comm’n, 1978 E.C.R. 207 (EU)...........................2
Case C-280/08 P, Deutsche Telecom AG v. Commission 2010 E.C.R. I-000 (EU).................7
Case C-418/01, IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, 2004
E.C.R. I-5039 (EU) [hereinafter IMS Health]........................................................................1
Case C-48/69, Imperial Chemical Industries Ltd v. Commission of the European
Communities, 1972 E.C.R. 619 (EU)..................................................................................11
Case C-525/16, MEO – Serviços de Comunicações e Multimédia SA v. Autoridade da
Concorrência, ECLI:EU:C:2018:270 (EU)............................................................................7
Case C-549/10, Tomra Systems ASA and Others v. European Commission, 2012 E.C.R. II-
000 (EU)...............................................................................................................................13
Case C-6/72, Continental Can Company Inc v. Comm’n of the European Communities,
(1973) E.C.R. 215 (EU).........................................................................................................1
Case C-62/86, Akzo Chemie v. Commission of the European Communities, 1991 E.C.R. I-
3359 (EU)...............................................................................................................................3
Case C-7/97, Oscar Bronner v. Mediaprint Zeitungs- und Zeitschriftenverlag, Mediaprint
Zeitungsvertriebsgesellschaft and Mediaprint Anzeigengesellschaft, 1998 E.C.R. I-7791
(EU)........................................................................................................................................8

Case C-73/95, Viho Europe BV v. Comm’n of the European Communities, 1996 E.C.R. I-
5457 (EU).............................................................................................................................11
Case C-85/76, Hoffman-La Roche v. Commission, 1979 E.C.R. 461 (EU)..............................2
Case COMP/M.5220, ENI v. Distrigaz, 2008(EU)..................................................................13
Case T-191/98, Atlantic Container Line AB and others v. EC Comm’n, 2003 E.C.R. II-3275
(EU)........................................................................................................................................9
Case T-201/04, Microsoft Corp. v. Comm’n of the European Communities, 2007 E.C.R. II-
3601 (EU)...............................................................................................................................8
Case T-228/97, Irish Sugar Plc v. Commission of the European Communities, 1999 E.C.R.
II-2969 (EU)...........................................................................................................................7
Case T-340/03, France Télécom v. Commission, 2007 E.C.R. II-107 (EU).............................5
Case T-374/94, European Night Services and Ors v. Comm’n, 1998 E.C.R. II-3141 (EU)......8
Case T-83/91, Tetra Pak International v. Comm’n (Tetra Pak II), 1994 E.C.R. II-755 (EU). . .5
Case T-9/99, HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG
and Ors v. Commission of the European Communities, 2002 E.C.R. II-1487 (EU)...........11
Cases C- 7/73, Commercial Solvents v. Comm’n, 1974 E.C.R. 223 (EU)................................8
NV Nederlandsche Banden-Industrie Michelin v. Commission, 1983 E.C.R. 3461 (EU)........2
Societe Nationale Industrielle Aerospatiale ET AL. v. United State District Court for the
Southern District of Iowa, 482 U.S. 522, (1987) (US)..........................................................1
Southern Pacific Communications v A.T.T, 740 F.2d 980 (US).............................................13
United States v. Colgate & Co., 250 U.S. 300 (1919) (US).....................................................11
United States v. Marine Bancorporation, 418 U.S. 602, (1974) (US).......................................2
Virgin Atl. Airways v. British Airways, 257 F. 3d 256 (US)....................................................6
BOOKS AND ARTICLES

1 SM DUGAR ET. AL., GUIDE TO COMPETITION LAW (6th ed. Lexisnexis 2016)......................2
ABIR ROY, COMPETITION LAW IN INDIA (2d ed. Eastern Law House 2014)...........................12
ALISON JONES & BRENDA SUFRIN: EU COMPETITION LAW (6th ed. Oxford Univ. Press
2006)......................................................................................................................................5
ARIEL EZRACHI, EU COMPETITION LAW: AN ANALYTICAL GUIDE TO THE LEADING CASES
(4th ed. Oxford and Portland 2014).......................................................................................8
BLACK’S LAW DICTIONARY (10th ed. 2014)...........................................................................17
D.P. MITTAL, COMPETITION LAW AND PRACTICE: A COMPREHENSIVE SECTION WISE
COMMENTARY ON LAW RELATING TO THE COMPETITION ACT (3d ed. Taxmann 2011)....3

DAVID BAILEY, LAURA ELIZABETH JOHN: BELLAMY & CHILD: EUROPEAN UNION LAW OF
COMPETITION (8th ed. Oxford Univ. Press 2018)..................................................................9

F WIJCKMANS & F TUYTSCHAEVER, VERTICAL AGREEMENTS IN EU COMPETITION LAW (2d
ed. 2011).................................................................................................................................1
FAULL & NIKPAY: THE EU LAW OF COMPETITION (Jonathan Faull et al. eds. Oxford Univ.
Press 3d ed. 2014 [hereinafter, Faull & Nikpay]...................................................................5
GR Bhatia, Ex-Parte Prima Facie order by the Competition Commission of India-A Critique,
Competition Law Reports (August, 2013)...........................................................................17
HENRIK BALLEBYE OKHOLM &TORBEN THORØ PEDERSEN: WHERE DO WE STAND ON
DISCOUNTS? – A NORDIC PERSPECTIVE (1st ed. Ex Tuto 2017)...........................................9
LENNART RITTER & W. DAVID BRAUN, COMPETITION LAW: A PRACTITIONERS GUIDE (3d
ed. Kluwer Law International 2005)......................................................................................4
RICHARD WHISH & DAVID BAILEY, COMPETITION LAW (7th ed. Oxford Univ. Press 2012)...7
OTHER AUTHORITIES
BBI/Boosey and Hawkes: Interim Measures, 1987, O.J. (L 286) 36 (EU)..............................16
Commission Regulation (EC) 772/2004, of 27 April 2004, Application of Article 81(3) of the
Treaty to Categories of technology transfer agreements O.J. L123/11, art. 1 (j) (i)..............1
Communication from the Comm’n — Guidance On The Commission's Enforcement
Priorities In Applying Article 82 Of The EC Treaty To Abusive Exclusionary Conduct By
Dominant Undertakings, 2009 O.J. (C 45) 10.......................................................................2
Competition commission of India (General) Regulations 2009, No. 2 of 2009, Rule 17........17
DG COMPETITION, DISCUSSION PAPER ON THE APPLICATION OF ARTICLE 82 OF THE TREATY
TO EXCLUSIONARY ABUSES (2005)
https://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf............................5, 8, 16
DG COMPETITION, DISCUSSION PAPER ON THE APPLICATION OF ARTICLE 82 OF THE TREATY
TO EXCLUSIONARY ABUSES (2005),
https://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf....................................11
Emanuela Arezzo, Intellectual Property Rights at the Crossroad between Monopolization
and Abuse of Dominant Position: American and European Approaches Compared, 24 J.
MARSHALL J. COMPUT. & INFORMATION L. 455 (2005).......................................................4
EXCESSIVE PRICES (2002), https://www.oecd.org/competition/abuse/49604207.pdf................6
Far East Trade Tariff Charges and Surcharges Agreement, 2000 O.J.....................................10
FREEDOM TO CONDUCT BUSINESS AND ABUSIVE REFUSAL TO DEAL: DO DOMINANT

UNDERTAKINGS ENJOY LIMITED CONTRACTUAL FREEDOM? (2018)

http://lup.lub.lu.se/luur/download?
func=downloadFile&recordOId=8956014&fileOId=8956015............................................12
Guidance Article 102 Enforcement Priorities in Applying art. 82 EC Treaty to....................14
GUIDELINES FOR FOREIGN DIRECT INVESTMENT (FDI) ON E-COMMERCE(2016),
https://dipp.gov.in/sites/default/files/pn3_2016_0.pdf...........................................................7
Jacques Crémer, Competition Policy for the digital era, Competition Law Reports
(September, 2019)................................................................................................................17
PREDATORY PRICING (1989), https://www.oecd.org/competition/abuse/2375661.pdf..............5
PRICE DISCRIMINATION (2002), https://one.oecd.org/document/DAF/COMP(2016)15/en/pdf 5
PROSECUTING CARTELS WITHOUT DIRECT EVIDENCE OF AGREEMENT (2006)
https://www.oecd.org/daf/competition/prosecutionandlawenforcement/37391162.pdf......17
REFUSALS TO DEAL (2007), https://www.oecd.org/daf/43644518.pdf (Last visited Jan. 10,
2020)......................................................................................................................................8
Robert Pitofsky, New Definitions of Relevant Market and the Assault on Antitrust, 90
COLUM. L. REV. 1805 (1990).................................................................................................3
THE ROLE OF COMPETITION POLICY IN REGULATORY REFORM (2002),
https://www.oecd.org/regreform/1960522.pdf 3

MEMORIAL for INFORMANTS [STATEMENT OF JURISDICTION]
STATEMENT OF JURISDICTION
Case Number 1 of 2019: With regard to the circumstances that have been presented in the
instant case, the Informant COMPSAR has approached this Hon’ble Commission under
Section 19(a) of the Sokovian Konkurentsiya Yazon. The informant, COMPSAR humbly
submits to the jurisdiction of Hon’ble National Authority for Competition in Sokovia.
Case Number 2 of 2019: The Opposite Party Kree has approached this Hon’ble Commission
under Section 19(a) of the Sokovian Konkurentsiya Yazon. The opposite party, Kree humbly
submits to the jurisdiction of Hon’ble National Authority for Competition in Sokovia.

MEMORIAL for INFORMANTS [STATEMENT OF FACTS]
STATEMENT OF FACTS
SOKOVIA
1. Sokovia is one of the largest markets for smartphones in the world. The laws of Sokovia
are in pari materia with the laws of India. In 2002, the Government of Sokovia enacted
its competition law, the Sokovian Konkurentsiya Yazon [“SKY”].
PARTIES TO THE DISPUTE
2. Kree is an MNC which owns and operates an e-commerce marketplace. It operates its
own e-commerce portal known as Quicksilver. In the market for smartphones,
Quicksilver has a market share of 30%. Kree’s smartphone Genus accounts for 3.5%
market share.
3. 3+ is the leading smartphone manufacturer in Sokovia. It sells its smartphones through
offline and online channels including its own web-store. It accounts for 58% of all
smartphones sales in Sokovia. The flagship smartphone of 3+ is Orian X Pro and is the
most popular smartphone in Sokovia.
4. The Confederation of Mobile Phone Sellers and Retailers [“COMPSAR”] is the union of
offline mobile and portable electronics vendors and retailers in Sokovia.
THE DISPUTE
5. 3+ offered a discount of 15% and 10% on Orian X Pro when bought from its web store
other online platforms respectively. The COMPSAR felt aggrieved by the discriminatory
policies adopted by 3+ and filed an information with the National Authority for
Competition in Sokovia [“NACS”] alleging predatory conduct and ‘refusal to deal’ under
the SKY.
6. In the ensuing tensions between smartphone manufacturers and COMPSAR and to
protect its reputation, Kree decided not to sell any smartphones but the Genus on
Quicksilver for a period of 8 days during the festive season. 3+ noticed a decline in sales
during September-October and filed an information alleging that Quicksilver’s conduct
was in violations of Section [“§”] 3 and 4 of the SKY.
INVESTIGATION BY DIRECTOR GENERAL
7. The NACS directed the Director General [“DG”] to conduct an investigation. The DG
observed that 3+ had abused its dominant position in the market and that its conduct
amounted to anti-competitive refusal to deal. It also held that Quicksilver was a dominant
player in the market for e-commerce and that rejected the justifications provided thereon.
The NACS has directed the parties to appear before it for oral hearing on 16 th February

MEMORIAL for INFORMANTS [STATEMENT OF FACTS]
2020.

MEMORIAL for INFORMANTS [STATEMENT OF ISSUES]
STATEMENT OF ISSUES
THE INFORMANTS HAVE PLACED BEFORE THIS HONOURABLE

COMMISSION, THE FOLLOWING ISSUES FOR ITS CONSIDERATION:
I) WHETHER 3+ HAS VIOLATED § 4 OF THE SKY WITH RESPECT TO ABUSE OF DOMINANT
POSITION?
II) WHETHER PENALTY MUST BE IMPOSED ON 3+?

III) WHETHER QUICKSILVER HAS VIOLATED § 3 OF THE SKY WITH RESPECT TO ANTI-
COMPETITIVE AGREEMENT?
IV) WHETHER QUICKSILVER HAS VIOLATED §4 OF THE SKY WITH RESPECT TO ABUSE OF
DOMINANT POSITION?
V) WHETHER THE PRINCIPLES OF NATURAL JUSTICE HAVE BEEN VIOLATED?

MEMORIAL for INFORMANTS [SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS
I) 3+ HAS VIOLATED § 4 OF THE SKY.

It is submitted the relevant market in the present case is “Market for smartphones in
Sokovia”. 3+ is dominant in the relevant market due to its large market share and huge size
and resources. Further 3+’s conduct was predatory as it indulged in a predatory pricing
strategy and offered differential discounts to equally placed competitors. 3+ denied the
market access to the offline players by way of constructive refusal to deal. Hence, it violates
§ 4 of the SKY.
II) THERE MUST BE IMPOSITION OF PENALTY ON 3+.
It is submitted that the abuse of dominant position in this case is in respect to predatory
conduct and denial of market access by way of refusal to deal and therefore, the maximum
statutory penalty must be imposed on 3+ for its conduct.
III) QUICKSILVER HAS NOT VIOLATED § 3 OF THE SKY.

It is submitted that when a company exercises decisive influence over another company, they
form a single economic entity. Here, Kree and Quicksilver are ‘single economic entity’ and
cannot be subject to § 3 of the SKY. In Arguendo, there was no refusal to deal as the input
was not indispensable for 3+ and neither did it lead to hindering of competition in the market.
Quicksilver also had objective justifications for its conduct. Therefore, it is submitted that
Quicksilver has not violated § 3(4) of the SKY.
IV)QUICKSILVER HAS NOT VIOLATED § 4 OF THE SKY.
It is submitted that the relevant market here is “Market for smartphones in Sokovia”.
Quicksilver is not dominant in the relevant market due to factors like market share and size
and resources of the competitors. Quicksilver’s conduct had objective justification as it was
done in order to protect its commercial interest. Hence, it has not violated § 4 of the SKY.
V) PRINCIPLES OF NATURAL JUSTICE HAVE BEEN VIOLATED.
It is submitted that The Commission’s decision must be based on reasons and investigation as
such decision also affects the reputation of the party. In the instant case, there exists no prima
facie case against Quicksilver. There was no preliminary conference and no appropriate
reasons were given for such a finding. Hence, the Principles of Natural Justice have been
violated.

MEMORIAL for INFORMANTS [ARGUMENTS ADVANCED]
ARGUMENTS ADVANCED
A. 3+ HAS VIOLATED § 4 OF THE SKY.
(¶ 1.) The SKY mandates in § 4 that no undertaking shall abuse its dominant position. 1 It is
our humble submission before the Hon’ble Commission that 3+ has violated the provision for
the following reasons: first, the relevant market in the present case is “market for
smartphones in Sokovia” [A]; second, 3+ is in a dominant position in the relevant market [B]
and last, 3+ has abused such a dominant position [C].
B. THE RELEVANT MARKET IS THE MARKET FOR SMARTPHONES IN SOKOVIA.
(¶ 2.) To assess a violation of § 4 of the SKY, it is essential to ascertain the relevant

market,2 as dominance and its abuse are delineated as per the relevant market. 3 Relevant
product market4 consists of all products which are functionally interchangeable and
substitutable5 from a consumer’s perspective 6 to which one can switch if the said product is
available on unfair terms.7
(¶ 3.) For the purpose of delimiting the market, those characteristics of product in question
are taken by virtue of which they are particularly apt to satisfy an inelastic need and are only
to a limited extent interchangeable with other products.8
(¶ 4.) Physical characteristics, nature and end use of product are crucial in determining the
relevant product market.9 A smartphone has distinct characteristics and is therefore not
substitutable with other products.10 The CCI considered various features of a smartphone such
as storage capacity, processor speed, etc. and held that the market for smartphones is a
separate relevant product market.11
(¶ 5.) The market for smartphones consists of both the online and the offline channels as
1
The Competition Act, No. 12 of 2003, INDIA CODE (1993), § 19 (7) (f), § 4 [hereinafter The Competition Act].
2
Shri M M Mittal v. M/s Paliwal Developers Ltd, Case No. 112/2015 (CCI) 2016 (India).
3
Prints India v. Springer India Pvt Ltd, Case No. 16/2010 (CCI) 2012 (India).
4
Case C-418/01, IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, 2004 E.C.R. I-5039 (EU)
[hereinafter IMS Health].
5
Meru Travel Solutions Pvt Ltd v. Uber India Systems Pvt Ltd & Ors, Case No. 81/2015 (CCI) 2015 (India)
[hereinafter Meru Travel].
6
F WIJCKMANS & F TUYTSCHAEVER, VERTICAL AGREEMENTS IN EU COMPETITION LAW (2d ed. 2011).
7
Commission Regulation (EC) 772/2004, of 27 April 2004, Application of Article 81(3) of the Treaty to
Categories of technology transfer agreements O.J. L123/11, art. 1 (j) (i).
8
Case C-6/72, Continental Can Company Inc v. Comm’n of the European Communities, (1973) E.C.R. 215
(EU) [hereinafter Continental Can].
9
Societe Nationale Industrielle Aerospatiale ET AL. v. United State District Court for the Southern District of
Iowa, 482 U.S. 522, (1987) (US).
10
Tamil Nadu Consumer Products Distributors Association v. Fangs Technology Pvt Ltd and Ors, Case 15/2018
(CCI) 2018 (India).
11
Id.
6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page | 1

consumers look for options available in both offline and online markets and thereby decide
accordingly.12 In the event the price of the goods increases13 in one market then the
consumers shift towards the other market.14 In the instant case, consumers have the option to
buy smartphones from both the online and the online medium. Additionally, 3+ sold its
smartphones through both the channels. Therefore, on the basis of price of goods15,
substitutability16 and end use, it is submitted that the ‘relevant market’ in the present case is
the Market for smartphones in Sokovia.
C. 3+ IS IN A DOMINANT POSITION IN THE RELEVANT MARKET.
(¶ 6.) Dominance is a position of strength enjoyed by an undertaking which enables it to

behave independently of its competitors, its customers and ultimately of the consumers. 17 It is
submitted that 3+ is dominant in the relevant market since 3+ has the ability to operate
independently of the competitive forces prevailing in the relevant market [i] and 3+ affected
its competitors, consumers and the relevant market in its favour [ii].
D. 3+ has the ability to operate independently of the competitive forces
prevailing in the Relevant Market.
(¶ 7.) According to the test laid down in United Brands and Hoffman18, a firm would be able
to behave independently of competitive forces, if it has acquired a position of economic
strength.19 Economic strength can be understood to be one of substantial market power. 20 In
the instant case, to ascertain that 3+ has the ability to operate independently of the
competitive forces prevailing in the relevant market,21 the factors under §19(4) should be
considered.22 These factors include market share of the enterprise 23 [a] and the size and
resources of the enterprise [b].
12
Jasper Infotech Pvt Ltd (Snapdeal) v. M/s Kaff Appliances (India) Pvt Ltd, Case No. 61/2014 (CCI) 2014
(India).
13
Ashish Ahuja v. Snapdeal.com, Case No. 17/2014 (CCI) 2014 (India) [hereinafter Ashish Ahuja].
14
Deepak Verma v. Clues Network Online Pvt Ltd, Case No. 34/2016 (CCI) 2016 (India).
15
The Competition Act, supra note 1, § 19 (7) (b).
16
Meru Travel, supra note 5; United States v. Marine Bancorporation, 418 U.S. 602, (1974) (US).
17
Case C-27/76, United Brands v. European Comm’n, 1978 E.C.R. 207 (EU) [hereinafter United Brands]; Case
C-85/76, Hoffman-La Roche v. Comm’n, 1979 E.C.R. 461 (EU) [hereinafter Hoffman]; Case C-322/81, NV
Nederlandsche Banden-Industrie Michelin v. Comm’n, 1983 E.C.R. 3461 (EU)
18
United Brands, supra note 17; Hoffman, supra note 17.
19
United Brands, supra note 17.
20
Communication from the Comm’n — Guidance On The Commission's Enforcement Priorities In Applying
Article 82 Of The EC Treaty To Abusive Exclusionary Conduct By Dominant Undertakings, 2009 O.J. (C 45)
10 [hereinafter Abusive exclusionary conduct].
21
1 SM DUGAR ET. AL., GUIDE TO COMPETITION LAW (6th ed. Lexisnexis 2016) [hereinafter SM DUGAR ].
22
D.P. MITTAL, COMPETITION LAW AND PRACTICE: A COMPREHENSIVE SECTION WISE COMMENTARY ON LAW
RELATING TO THE COMPETITION ACT (3d ed. Taxmann 2011).
23
Robert Pitofsky, New Definitions of Relevant Market and the Assault on Antitrust, 90 COLUM. L. REV. 1805
(1990).

E. Market share of the enterprise.

(¶ 8.) Market share24 indicates the dominance of an enterprise 25 in a relevant market.26
Courts consider it as a persuasive27 and highly significant factor for determining dominance.28
Further, a market share in excess of 50% constitutes a rebuttable presumption that the
undertaking in question holds a dominant position.29 Here, 3+ held a market share of 58% in
the relevant market30. Relying on its huge market share, it is our submission that 3+ enjoyed a
position of dominance.
F. Size and resources of the enterprise.
(¶ 9.) The Commission may consider an enterprise dominant in terms of large size and
resources.31
(¶ 10.) Here, 3+ is the ‘leading manufacturer’ of smartphones and accounts for 58% of all
smartphones sales in Sokovia.32 Further, it owns the 3+ web-store and has the provision of
selling its smartphones through multiple channels.33 In light of this, it is submitted that 3+
was dominant in the relevant market in terms of size and its resources.
G. 3+ affected its competitors, consumers and the relevant market in its favour.
(¶ 11.) Dominance has direct proximity to market power as it allows an enterprise to act
independently of competitive constraints.34 Such independence enables a dominant enterprise
to operate independently35 in its favour to the economic disadvantage of its competitors. 36
Such position of dominance can be determined by unavailability of substitutes [a] and
existence of barriers for competitors [b].
a. Unavailability of substitutes.
24
The Competition Act, supra note 1, §19 (4) (a).
25
Arshiya Rail Infrastructure Ltd v. Ministry of Railways, Case No. 64/2010 (CCI) 2012 (India) [hereinafter
Arshiya Rail].
26
27
Neeraj Malhotra Advocate v. Deustche Post Bank Home Finance Limited & Ors, Case No. 05/2009 (CCI)
2010 (India).
28
Hoffman, supra note 17.
29
Case C-62/86, Akzo Chemie v. Commission of the European Communities, 1991 E.C.R. I-3359 (EU)
[hereinafter Akzo Chemie].
30
Moot Proposition, ¶ 7.
31
Kapoor Glass Pvt Ltd v. Schott Glass India Pvt Ltd, CompLR 2014 (CompAT) 295 (India) [hereinafter
Kapoor Glass]; Continental Can, supra note 8; Prasar Bharati v. TAM Media Research Pvt Ltd, CompLR 2016
(CCI) 595 (India).
32
33
Id.
34
THE ROLE OF COMPETITION POLICY IN REGULATORY REFORM (2002),
https://www.oecd.org/regreform/1960522.pdf (Last visited Jan. 8, 2020).
35
Emanuela Arezzo, Intellectual Property Rights at the Crossroad between Monopolization and Abuse of
Dominant Position: American and European Approaches Compared, 24 J. MARSHALL J. COMPUT. &
INFORMATION L. 455 (2005).
36
Shamsher Kataria v. Honda Sail Cars India Ltd, Case No. 3/2011 (CCI) 2014 (India) [hereinafter Shamsher
Kataria].

(¶ 12.) Demand side substitutability37 is the most essential element for determining
substitutability.38 Here, the magnitude of Orion X Pro’s demand in the market can be
witnessed from the fact that this smartphone was the most popular premium smartphone. Its
popularity stems from the fact that this phone offers a plethora of unique features. 39 Thus, at
this point in time there exists no suitable substitute for the product.
B. Creation of barriers for competitors.
(¶ 13.) To create barriers on potential entrants in the market, an enterprise should have the
ability to engage in conduct that excludes competition or prevents the entry of newcomers
into the relevant market and has the ability to influence the relevant market in its favour.40
(¶ 14.) In the instant case, 3+ provided discounts on its own web-store and other online
marketplaces. No discounts were provided to the offline retailers. 41 This led to creation of
barriers for competitors. In light of the above, it is submitted that 3+ enjoyed a dominant
position in the relevant market.
C. 3+’S CONDUCT AMOUNTS TO ABUSE OF DOMINANCE.
(¶ 15.) The SKY allows an enterprise to be in a dominant position; however, it prohibits

abuse of such a position. 42
It is submitted that 3+ has abused its dominance by violating
provisions § 4(2) (a), and § 4 (2) (c) of the SKY. This can be evidenced from the fact that it
has engaged in predatory conduct [i] and denied the market access by way of refusal to deal
[ii].
i. 3+has engaged in predatory conduct.
(¶ 16.) Predation by a dominant undertaking43 involves deliberately incurring losses or
foregoing profits in the short term so as to foreclose rivals with a view to strengthen or
maintain its market power.44 Price discrimination can be used within a predatory strategy.45 It
is submitted that the conduct of 3+ is predatory in nature it adopted a predatory pricing
strategy [a] and was involved in price discrimination [b].
a. 3+ adopted predatory pricing strategy.
37
LENNART RITTER & W. DAVID BRAUN, COMPETITION LAW: A PRACTITIONERS GUIDE (3d ed. Kluwer Law
International 2005).
38
Maharashtra State Power Generation Ltd v. Coal India Ltd & Ors, CompLR (2013) 910 (CCI) (India).
39
40
The Competition Act, supra note 1, §19 (4) (h).
41
42
The Competition Act, supra note 1, § 4.
43
Abusive exclusionary conduct, supra note 20.
44
FAULL & NIKPAY: THE EU LAW OF COMPETITION (Jonathan Faull et al. eds. Oxford Univ. Press 3d ed. 2014
[hereinafter, FAULL & NIKPAY].
45
PRICE DISCRIMINATION (2002), https://one.oecd.org/document/DAF/COMP(2016)15/en/pdf (Last visited Jan.
10, 2020).

(¶ 17.) The exclusion of players can be attempted through short-run pricing low enough to
induce exit or deter entry in the market. 46 Predation is an “objective concept” and it is not
necessary to prove intent for any direct effect.47 In this case 3+ predatory pricing strategy can
be inferred through the profit sacrifice test [1]. Further, 3+ cannot claim the defence of
‘meeting competition’ to waive liability for such predatory pricing [2].
B. Profit Sacrifice Test.
(¶ 18.) Profit sacrifice not only includes pricing below AAC.48 The point at which it is
unprofitable for the prey to remain in the market may be reached before the predators’ pricing
fall below its costs.49 Moreover, where no reliable information on cost data is available to the
Commission, it can build a credible case of predatory abuse through other arguments.50
(¶ 19.) In the instant case, 3+ clearly sacrificed its profits. This was revealed by the internal
emails stating the intention of 3+ to sell Orian X Pro at ‘low margins’ in the beginning.
C. Meeting competition defence cannot be taken.
(¶ 20.) The ‘meeting competition defence’ is the plea that the dominant undertaking is
merely reacting to competition in a proportionate and reasonable way. 51 Additionally, the
dominant undertaking must first show that the chosen conduct is a suitable way to achieve the
legitimate aim.52
(¶ 21.) Here, 3+ cannot take the ‘meeting competition defence’ as it was amongst the first
ones to give such discounts on its platform during the festive season. 3+’s conduct to give
heavy discounts on its platform was not a response to its competitors but rather a first move
in order to gain market power.
D. 3+ was involved in price discrimination.
(¶ 22.) Unjustified discounts are predatory in nature and so is discriminatory pricing. 53. The
EU Article 102 TFEU also provides that if a dominant player applies dissimilar conditions to
equivalent transactions with other trading parties, thereby placing them at competitive
46
PREDATORY PRICING (1989), https://www.oecd.org/competition/abuse/2375661.pdf (Last visited Jan. 10,
2020).
47
NSE v. CCI, CompLR 2014 (CompAT) 304 (India).
48
Case T-83/91, Tetra Pak International v. Comm’n (Tetra Pak II), 1994 E.C.R. II-755 (EU) [hereinafter Tetra
Pak]; Case T-340/03, France Télécom v. Comm’n, 2007 E.C.R. II-107 (EU).
49
FAULL & NIKPAY, supra note 44.
50
DG COMPETITION, DISCUSSION PAPER ON THE APPLICATION OF ARTICLE 82 OF THE TREATY TO
EXCLUSIONARY ABUSES (2005), https://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf (Last visited
Jan. 17, 2020) [hereinafter DG Competition].
51
ALISON JONES & BRENDA SUFRIN: EU COMPETITION LAW (6th ed. Oxford Univ. Press 2006).
52
DG COMPETITION, supra note 50.
53
Virgin Atl. Airways v. British Airways, 257 F. 3d 256 (US).

disadvantage; it is considered to be an abuse of dominant position. 54 “Dissimilar conditions”

also include “dissimilar prices”.55
(¶ 23.) In the instant case, 3+ indulged in the abusive practice of discriminatory discounting.
Therefore, it is submitted that 3+ has abused its dominant position by its predatory and
exploitative conduct as first, the competitors were similarly placed [1]; secondly, transactions
were equivalent [2]; thirdly, 3+ adopted differential discount policies [3] and lastly, its
conduct led to creation of competitive disadvantage for the offline retailers [4].
1. The competitors operate in same relevant market.
(¶ 24.) Both offline and online markets are merely different channels of distribution and not
two separate relevant markets.56 The online and offline vendors sold smartphones
manufactured by 3+ and other smartphone manufacturers. Thus, it is submitted that both
offline and online vendors operated in same relevant market and hence are similarly placed
competitors.
B. Transactions were equivalent.
(¶ 25.) The conduct involving price and conditions is discriminatory if they were different for
the same quantities of the same product’.57 The transactions between 3+ and several online
and offline dealers were equivalent as these all of these parties were involved in the sale of
Orian X Pro. As stated above, both online and offline retailers form a part of the same
relevant market. On the basis of this, it is submitted that the transactions were equivalent and
similar in nature.
C. 3+ adopted differential discount policies.
(¶ 26.) Selective discounts can overlap with predatory conduct. 58 Discounts can be anti-
competitive if they effectively foreclose a large share of the relevant market59 and exclude
rivals as a substantial impediment to expansion. Additionally, when a dominant firm creates a
huge difference in prices with no prevalent competition, it amounts to abuse of dominant
position.60
(¶ 27.) In the instant case, 3+ gave discount of 15% and 10% on the sale of Orian X Pro
when sold through its web-store and Quicksilver’s platform respectively. 61 However, no such
54
Hoffman, supra note 17; Case T-155/06, Tomra Systems and Others v. Comm’n, 2010 E.C.R. II-4361 (EU).
55
EXCESSIVE PRICES (2002), https://www.oecd.org/competition/abuse/49604207.pdf (Last visited Jan. 7, 2020).
56
Ashish Ahuja, supra note 13.
57
Kapoor Glass, supra note 31.
58
Case C-1001/1/1/01, Napp Pharma. Holding v. Director General of Fair Trading, 2002 EWCA 796 (UK)
[hereinafter Napp Pharma].
59
Case C-280/08 P, Deutsche Telecom AG v. Comm’n 2010 E.C.R. I-000 (EU).
60
Napp Pharma, supra note 60.
61

discounts were given to the offline retailers. 62 Taking this into consideration, one can
conclude that the same commodity was being sold at different rates to different customers.
This clearly gave rise to an abusive conduct.
D. 3+’s conduct created competitive disadvantage for the offline
retailers.
(¶ 28.) E-commerce entities shall not directly or indirectly influence the sale price of goods
or services and shall maintain a level playing field.63 Competitive disadvantage does not
require proof of actual quantifiable deterioration in the competitive situation.64 Where the
dominant supplier is itself a competitor of its customer, the resulting disadvantage to
customer increases because he is directly in competition with the dominant firm. 65
Admittedly, consumers benefit from retailers obtaining products at lower prices because the
same is transmitted on to the former.66
(¶ 29.) In the case at hand, 3+ gave no discounts to the offline retailers67 and adopted a
discriminatory discounting policy68. In view of this, one can conclude that both offline
retailers and consumers were at a disadvantageous position.
E. 3+’s denied the market access to the offline players by way of refusal to
deal.
(¶ 30.) Any practice by a dominant enterprise which forecloses the market access to other
market player is an abuse of dominant position. 69 Where only one-party refuses to deal with
another, the critical element of “agreement” under § 3(4) (d) is missing. Therefore, such
unilateral conduct can only be examined under § 4, in case the party which refused to deal is
a dominant party. Further, the concept of refusal to deal 70 also covers instances of agreements
when conditions are so unreasonable, uneconomic or onerous 71 that a viable commercial
62
63
GUIDELINES FOR FOREIGN DIRECT INVESTMENT (FDI) ON E-COMMERCE (2016),
https://dipp.gov.in/sites/default/files/pn3_2016_0.pdf (Last visited Jan. 26, 2020).
64
Case C-525/16, MEO – Serviços de Comunicações e Multimédia SA v. Autoridade da Concorrência,
ECLI:EU:C:2018:270 (EU).
65
Case T-228/97, Irish Sugar Plc v. Comm’n of the European Communities, 1999 E.C.R. II-2969 (EU); Case C-
242/95, GT Link v. DSB, 1997 E.C.R. I-4449 (EU).
66
RICHARD WHISH & DAVID BAILEY, COMPETITION LAW (7th ed. Oxford Univ. Press 2012).
67
68
Id.
69
The Competition Act, supra note 1, § 19 (3) (c).
70
The Competition Act, supra note 1, § 3 (4) (d).
71
Jan. 17, 2020).

relationship is impossible.72 Such a case amounts to ‘constructive’ refusal to deal73

(¶ 31.) In the instant case, it is submitted 3+ adopted differential discounting policies and
thus constructively refused to deal with COMPSAR thereby denying them market access.
Moreover, for a refusal to be abusive74; first, the requested product must be indispensable to
the business of the requesting undertaking [a] ;secondly, it would risk of eliminating all the
competition from the requesting undertaking [b] ;and lastly, the requested undertaking cannot
provide justification for the denial [c].
a. The requested product was indispensable for COMPSAR.
(¶ 32.) The refused input is indispensable means that there is no real or potential substitute
for the same.75 Substitutability is missing when the input refused may be obtained through
other undertakings.76 The Court explicitly required defining two separate markets77 for the
indispensability test: one market for the requested product and the other market for the
business of the refused undertaking.78
(¶ 33.) In the instant case, there exist two markets: the upstream market for manufacturing of
smartphones and the downstream market for its sales. The services of the upstream market
were indispensable to the retailers operating in the downstream market in order to carry on
their business. Additionally, there was no other substitute for 3+’s special premium
smartphone Orian X Pro due to its high battery life and superior 30 mega-pixel camera. 79
Therefore, it is submitted that Orian X Pro was indispensable for the offline retailers in order
to compete in the market.
B. 3+’s conduct is likely to eliminate all competition in the downstream market.
(¶ 34.) An abuse arises where ‘the refusal is of such a kind as to exclude any effective
competition on that neighbouring market80,without it being necessary to demonstrate that all
competition had been eliminated.81 Moreover, once a dominant firm voluntarily decides to
72
REFUSALS TO DEAL (2007), https://www.oecd.org/daf/43644518.pdf (Last visited Jan. 10, 2020) [hereinafter
REFUSALS TO DEAL].
73
Cases C- 7/73, Commercial Solvents v. Comm’n, 1974 E.C.R. 223 (EU) [hereinafter Commercial Solvents].
74
Case C-7/97, Oscar Bronner v. Mediaprint Zeitungs- und Zeitschriftenverlag, Mediaprint
Zeitungsvertriebsgesellschaft and Mediaprint Anzeigengesellschaft, 1998 E.C.R. I-7791 (EU) [hereinafter
Oscar Bronner].
75
Case T-374/94, European Night Services and Ors v. Comm’n, 1998 E.C.R. II-3141 (EU) [hereinafter
European Night].
76
ARIEL EZRACHI, EU COMPETITION LAW: AN ANALYTICAL GUIDE TO THE LEADING CASES (4th ed. Oxford
and Portland 2014) [hereinafter ARIEL EZRACHI].
77
Commercial Solvents, supra note 73.
78
Case T-201/04, Microsoft Corp. v. Comm’n of the European Communities, 2007 E.C.R. II-3601 (EU)
[hereinafter Microsoft].
79
80
Microsoft, supra note 78.
81
DAVID BAILEY, LAURA ELIZABETH JOHN: BELLAMY & CHILD: EUROPEAN UNION LAW OF COMPETITION (8th

supply, it must do so on terms at which competitors can effectively compete.82

(¶ 35.) In this case, it became unviable for the offline vendors to compete thereby risking
competition in the downstream market. In light of this, it is humbly submitted that 3+’s
conduct was detrimental for the healthy competition to prevail in the relevant market.
C. 3+ had no objective justification for its conduct.
(¶ 36.) In the absence of an objective reason, any discount system would be considered
abusive.83 To put forward objective justification, it is upon the dominant undertaking to show
that its conduct is objectively necessary or its action outweighs any anti-competitive effects
on consumers.84
(¶ 37.) In the case at hand, the heavy discounts offered by 3+ were not objectively necessary
nor did they outweigh any anti-competitive effects on consumers. Thus, the conduct of 3+
cannot be objectively justified. In sum, it is submitted that 3+ had violated § 4 of the SKY.
D. THERE MUST BE IMPOSITION OF PENALTY ON 3+.
(¶ 38.) It is our submission that the Hon’ble Commission should impose a penalty on 3+ for
its abusive conduct. In imposing fines and periodic penalty payments, the main aim is to
ensure that the prohibited conduct does not recur.85The Commission often explicitly justifies
a high fine being imposed to exclude, by its deterrent effect, any repetition of the behavior in
question.86
(¶ 39.) The CCI (“Competition Commission of India”) in MCX87stated that § 2(y) of the SKY
defines turnover as including value of sale of goods or services. § 27(b) of the SKY stipulates
penalty based on average of turnover for three preceding financial years. Since, neither gives
a leeway for an interpretation that turnover means turnover in the context of only the relevant
product or geographic market, the penalty must be calculated on the basis of the annual
turnover.
(¶ 40.) The abuse of dominant position in this case is in respect to predatory conduct and
denial of market access by way of refusal to deal. Denial of market access was held to be one
of the most severe forms of abuse of a dominant position and the maximum statutory penalty
ed. Oxford Univ. Press 2018).

82
Id.
83
HENRIK BALLEBYE OKHOLM &TORBEN THORØ PEDERSEN: WHERE DO WE STAND ON DISCOUNTS? – A
NORDIC PERSPECTIVE (1st ed. Ex Tuto 2017).
84
SM DUGAR, supra note 21.
85
Case T-191/98, Atlantic Container Line AB and others v. EC Comm’n, 2003 E.C.R. II-3275 (EU) [hereinafter
Atlantic Container].
86
Far East Trade Tariff Charges and Surcharges Agreement, 2000 O.J. (L 268/1).
87
MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd, Case No. 13/2009 (CCI) 2011 (India).

on at a rate of 10% of the company's average annual turnover was imposed.88

(¶ 41.) In the instant case, nothing on the record calls for a lenient view 89
as the abusive
practices has been carried with the sole object of undue economic gains and business
profits90. In view of the above, it is our humble submission a similar penalty of 10% or any
other amount deemed appropriate by the Commission be adopted in the instant case. In sum,
it is submitted that there must be imposition of maximum statutory penalty on 3+.
E. QUICKSILVER HAS NOT VIOLATED § 3 OF THE SKY.
(¶ 42.) It is our humble submission before this Hon’ble Commission that Quicksilver has not
violated § 3 of the SKY because the vertical agreement is not anti-competitive in nature; [A.]
and the said agreement did not cause any Appreciable Adverse Effect on the market
[“AAEC”] [B.].
A. THE VERTICAL AGREEMENT IS NOT ANTI- COMPETITIVE IN NATURE
(¶ 43.) It is submitted that Quicksilver’s liability under § 3(4) for ‘refusal to deal’ holds no
good because there was no agreement [i]; and alternatively, there was no refusal to deal [ii].
i. There was no agreement.
(¶ 44.) It is submitted that for an act to fall within the ambit of § 3, there must be an
agreement between two or more parties. An agreement always envisages two or more parties
or enterprises.91 Moreover, an internal arrangement between an enterprise and its group/
parent company is not within the purview of §3 (4) of the SKY. 92 As long as they form part of
the same group93, they will be considered as a ‘single economic entity’ for the purpose of the
Act.94
(¶ 45.) Acting together on the market as a single unit is the main factor. 95 Single unit market
conduct implies that a subsidiary or affiliate has no real freedom to determine its course of
action on the market.96 Moreover, when a company exercises decisive influence over another
company they form a single economic entity and, hence, are part of the same undertaking.97
88
East India Petroleum Pvt Ltd v. South Asia LPG Company Pvt Ltd, Case No. 76/2011 (CCI) 2018 (India).
89
Microsoft, supra note 78.
90
Kranti Associates Pvt Ltd & Anr. v. Sh. Masood Ahmed Khan & Ors, (2010) 9 SCC 496 (India).
91
Reliance Big Entertainment Ltd v. Karnataka Film Chamber of Commerce, CompLR 2012 (CCI) 0269
(India).
92
Shamsher Kataria, supra note 36.
93
The Competition Act, supra note, § 5, Expln. (b)
94
Exclusive Motors Pvt Ltd v. Automobile Lamborghini SPA, Case No. 52/2012 (CCI) 2012 (India).
95
Case T-9/99, HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG and Ors v.
Comm’n of the European Communities, 2002 E.C.R. II-1487 (EU).
96
Case C-48/69, Imperial Chemical Industries Ltd v. Commission of the European Communities, 1972 E.C.R.
619 (EU).
97
Case C-73/95, Viho Europe BV v. Comm’n of the European Communities, 1996 E.C.R. I-5457 (EU).

(¶ 46.) In the instant case, Kree and Quicksilver are ‘single economic entity’ by virtue of the
control exercised by Kree over Quicksilver’s conduct. Thus, they are a single economic entity
and cannot be subject to § 3 of the SKY.
ii. Alternatively, there was no ‘refusal to deal’.
(¶ 47.) A vertical agreement is anti-competitive if it results in refusal to deal. 98Refusal
concerns a product or service which is strictly necessary to allow another undertaking to carry
on another business and there are no grounds for justification of refusal. 99 Moreover,
undertakings, including dominant undertakings, are entitled to determine whom to supply and
to decide not to continue to supply certain trading partners.100
(¶ 48.) Here, Quicksilver’s conduct does not amount to anti-competitive refusal to deal as it
took actions to protect its reputation. Thus, its actions were necessitated by the prevailing
circumstances and justiciable business reasons.101 On the basis of this, it is our submission
that Quicksilver’s conduct does not amount to refusal to deal.
C. THERE HAS NOT BEEN ANY APPRECIABLE ADVERSE EFFECT ON COMPETITION.
(¶ 49.) Under §19(3), the SKY specifies certain conditions to assess the negative and positive
effects on the market.102 All the factors must be looked at together to analyse the net impact
on competition.103
(¶ 50.) Further, in Oscar Bronner v. Mediaprint104, the essential aspects for refusal to deal
were stated: first, access must be indispensable for rivals to compete [i]; secondly, failing to
supply access must risk eliminating all competition on the downstream market [ii]; and lastly,
there must be no objective justification for a decision not to supply [iii].
i. The Access To Quicksilver’s Platform Was Not Indispensable For 3+.
(¶ 51.) It is submitted for the input to be indispensable; there must be no other input that
could be used in order to neutralize the effects arising from the refusal to deal. 105
Consequently, substitutability is missing when the input refused may be obtained through
98
The Competition Act, supra note, § 3 (4) d.
99
Refusals to deal, supra note 72.
100
Jan. 17, 2020).
101
United States v. Colgate & Co., 250 U.S. 300 (1919) (US).
102
ABIR ROY, COMPETITION LAW IN INDIA (2d ed. Eastern Law House 2014).
103
Automobile Dealer Association Hathras U.P v. Global Automobiles Ltd and Ors, Case No. 33/2011 (CCI)
2012 (India).
104
Oscar Bronner, supra note 74.
105
ABUSIVE REFUSAL TO DEAL: DO DOMINANT UNDERTAKINGS LIMITED CONTRACTUAL FREEDOM? (2018),
http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8956014&fileOId=8956015 (Last visited
Jan. 14, 2020).

other undertakings.106 The fact that alternative means of reaching customers are competitively
‘less advantageous’ than those refused by the undertaking is not sufficient.107
(¶ 52.) While analysing whether an input is indispensable, three important aspects need to be
considered;108 The input must be essential to the commercial activity of the refused firm; the
input must not be reasonably be obtained from a source other than the dominant firm; and
requesting party must not be able to produce the input itself in a legally and economically
viable manner. In the instant case, 3+ had its own online web-store and also sold its product
through offline channels. Therefore, all the above-mentioned conditions are fulfilled. Taking
this into consideration, Quicksilver’s platform cannot be regarded as indispensable for 3+.
ii. The Denial of Access to The Platform Did Not hinder competition in the
relevant market.
(¶ 53.) It is our humble submission that the denial of access to Quicksilver’s platform did not
hinder competition in the relevant market as first, duration of the conduct was not sufficient
to cause AAEC [a]; and secondly, Elimination of specific competitor is not sufficient [b].
a. Duration of the conduct was not sufficient to cause AAEC.
(¶ 54.) It is submitted that the duration of the conduct is an important factor while analysing
the likely positive and negative effects on competition among other things. 109 Furthermore, a
refusal to deal is only unlawful if it can be shown that it will have an anti-competitive effect,
with consequent “long-lasting” consumer harm.110Similarly, in Tomra,111 the Commission
noted that agreements of a shorter duration are generally less restrictive of competition. In the
instant case, Quicksilver’s decision was only for a small period of “eight days”, which is not
sufficient to have a huge negative impact on competition.
B. Elimination of specific competitor not sufficient.
(¶ 55.) As a rule, it is not sufficient that that the refusal to deal eliminates a specific
competitor.112In the instant case, Quicksilver’s decision cannot eliminate competitors as 3+
and other manufacturers as all of them had alternate channels for selling their smartphones.
Moreover, they also sold their smartphones through the offline medium.113 Additionally, 3+
also operated through the 3+ web-store. In light of this, it is submitted that Quicksilver’s
106
Id.
107
Oscar Bronner, supra note 74.
108
IMS Health, supra note 4.
109
Case COMP/M.5220, ENI v. Distrigaz, 2008(EU).
110
Refusals to deal, supra note 72.
111
Case C-549/10, Tomra Systems ASA and Others v. European Comm’n, 2012 E.C.R. II-000 (EU).
112
The Competition Act, supra note, §19 (3).
113

conduct is not capable of eliminating competitors.

iii. Quicksilver has Objective Justifications for its conduct.
(¶ 56.) A refusal to deal is anti-competitive only when it has no objective commercial
justification.114 In the absence of a ‘bottleneck monopoly’ or indispensability, it is not abusive
for a dominant platform to limit access to its facilities and enjoy ‘a commercial advantage
over others’ in a downstream market by virtue of its ownership of the platform.115
(¶ 57.) In the instant case, Kree had a commercial advantage over others as it owned the
platform of Quicksilver. Therefore, it is most submitted that Quicksilver has not violated
§3(4) of SKY because the said agreement is neither anti-competitive nor does it result in
AAEC. In sum, it is submitted that Quicksilver has not violated § 4 of the SKY.
D. QUICKSILVER HAS NOT VIOLATED § 4 OF THE SKY.
(¶ 58.) The SKY provides that no undertaking should abuse its dominant position. 116 It is
humbly submitted before the Hon’ble Commission that Quicksilver has not abused its
dominant position because the relevant market identified by the DG is not accurate [A] and
Quicksilver does not enjoy dominance in the relevant market [B]. In Arguendo Quicksilver
has not abused its dominant position [C].
A. THE RELEVANT MARKET IDENTIFIED BY THE DG IS NOT ACCURATE.
(¶ 59.) In the case at hand, the relevant market is the Market for smartphones in Sokovia as
has already been identified above in Issue I. In light of this, the DG has erred in identifying
the market.
B. QUICKSILVER IS NOT DOMINANT IN THE IDENTIFIED RELEVANT MARKET.
(¶ 60.) The determination of dominance in relevant market is pre-requisite to enquire into the
abuse of dominant position.117 The factors which NACS should consider118 to determine the
dominant position of an enterprise is enumerated under §19 (4) of the SKY.119
(¶ 61.) It is submitted that Quicksilver is not in a dominant position in the identified relevant
market as Quicksilver does not operate independently of the competitive forces prevailing in
the relevant market [i] and presence of other factors [ii].
i. Quicksilver Does Not Operate Independently of the Competitive Forces
Prevailing in the Relevant Market.
114
Southern Pacific Communications v A.T.T, 740 F.2d 980 (US).
115
European Night, supra note 75; Oscar Bronner, supra note 74; Commercial Solvents, supra note 73.
116
The Competition Act, supra note, § 4 (2), Expln. 2.
117
The Competition Act, supra note, § 4.
118
Arshiya Rail, supra note 25.
119

(¶ 62.) A firm is able to behave independently of competitive forces, if it has acquired a

position of economic strength.120In order to determine that an enterprise does not operate
independently of the competitive forces in relevant market, 121 the following factors enlisted
under §19(4) of the SKY should be considered. They include market share of the enterprise
[a], and size and resource of competitors [b].
a. Market Share of the enterprise.
(¶ 63.) The position of economic strength can be understood to be one of substantial market
power.122 Market share less than 50% would lead to a presumption that dominance is unlikely
to be present, in the absence of exceptional circumstances.123 In the instant case, the market
share of Quicksilver in the relevant market is 30% which is nearly half of that of its
competitor 3+ whose market share stands at a colossal 58%. Thus, it is submitted that
Quicksilver did not operate independently of the competitive forces prevalent in the relevant
market and hence is not dominant.
B. Size and resource of competitors.
(¶ 64.) In accordance with §19(4) (c) of the SKY, it is submitted that Quicksilver’s
competitors including 3+ operated on a large scale. 3+ was also the owner of the most
popular smartphone Orian X-Pro.124It was also the ‘leading manufacturer’ of smartphones in
Sokovia. On the basis of this, it can be inferred that there existed competitors with huge size
and resources. Thus, it is submitted that Quicksilver did not operate independently without
the influence of market forces and its competitors.
iii. Presence of other factors.
(¶ 65.) It is submitted that the DG had concluded that Quicksilver was the market leader in
the market for e-commerce in terms of traders listing their products on it. However, on the
Sokovian government’s directive, it had to list all traders with an annual income of less than
500,000 SKC on its platform on a non-commission basis. 125 Therefore, it is submitted that the
DG erred while determining the dominant position of Quicksilver.
D. IN ARGUENDO, QUICKSILVER’S CONDUCT DOES NOT AMOUNT TO ABUSE OF
DOMINANT POSITION.
120
United Brands, supra note 17; Hoffman, supra note 17.
121
ARIEL EZRACHI, supra note 76.
122
Guidance Article 102 Enforcement Priorities in Applying art. 82 EC Treaty to Abusive Exclusionary
Conduct by Dominant Undertakings, O.J. 2009 (C 45) [hereinafter, Enforcement Guidance].
123
Akzo Chemie, supra note 29.
124
125

(¶ 66.) The SKY provides that no undertaking should abuse its dominant position. 126
However, if an undertaking provides objective justification for its actions, it is not liable for
abuse of dominant position.127 It is submitted before the Hon’ble Commission that
Quicksilver had objective justifications for its conduct. Quicksilver’s conduct was justified
due to protection of commercial interests [i]; necessity [ii]. Furthermore, it had the right to
exercise its commercial freedom [iii].
i. Protecting commercial interests.
(¶ 67.) The purpose of justification is to enable a dominant undertaking to show that the
practices were reasonable to protect its commercial interests 128 and that they do not constitute
an abuse.129 For the conduct of a dominant undertaking to be objectively justified, it must be
proportionate to its aim.130 The question of whether a dominant undertaking is pursuing a
legitimate aim depends on its intent, regardless of the consequences. 131 Furthermore,
“reasonable steps” must be taken to achieve the legitimate aims.132
(¶ 68.) Here, Quicksilver sold its own smartphone Genus as it was relatively a new entrant in
the market.133 Moreover, its decision was only driven by the ensuing tensions between
COMPSAR and the smartphone manufacturers134 with the aim of protecting its reputation.
Quicksilver’s conduct can thus be justified not because it has no alternatives, but because it
has sound business reasons for its conduct. Therefore, it is submitted that in order to protect
its reputation, Quicksilver’s conduct was valid.
ii. Quicksilver’s conduct was necessary.
(¶ 69.) It is submitted that an objective justification is valid where otherwise abusive conduct
of the dominant undertaking is actually necessary on the basis of objective factors external to
the parties involved and in particular external to the dominant company.135
(¶ 70.) In the instant case, Quicksilver’s conduct does not amount to abuse of dominant
position as, the offline retailers threatened to not stock any manufacturer’s smartphone that
126
The Competition Act, supra note 1, § 4 (2), Expln 2.
127
128
Id.
129
Atlantic Container, supra note 85.
130
United Brands, supra note 17; BBI/Boosey and Hawkes: Interim Measures, 1987, O.J. (L 286) 36 (EU)
[hereinafter BBI Boosey]; Case C-468/06, Sot. Lelos kai Sia EE v. GlaxoSmithKline AEVE Farmakeftikon
Proionton, formerly Glaxowellcome AEVE, 2008 E.C.R. I-07139 (EU) [hereinafter GlaxoSmithKline].
131
Id.
132
United Brands, supra note 17; BBI/Boosey, supra note 130; Tetra Pak, supra note 48; GlaxoSmithKline,
supra note 130; Atlantic Container, supra note 85.
133
134
135
Jan. 17, 2020).

sells at deeply discounted rates online.136 Genus was only available online137 and this would
not have tarnished Quicksilver’s reputation. Additionally, Quicksilver’s reputation would
have been on the line if it sold other manufacturer’s smartphones, which were available on
both, online and offline mediums and it’s conduct did not cause any consumer harm as all
smartphones sold through its platform were also available offline. 138 Therefore, the
consumers were not robbed of choices.
iii. Quicksilver had the right to exercise its commercial freedom.
(¶ 71.) It is submitted that a dominant firm, notwithstanding its ‘special responsibility’ is still
entitled to a degree of commercial freedom. 139 This implies that it is up to the dominant firm
to determine the appropriate course of action. Additionally, no exhaustive list of objective
justifications has been established, and they are instead considered on a case-by-case basis.140
(¶ 72.) In this case, Quicksilver had objective justifications as it acted within the limits of its
commercial freedom. Thus, Quicksilver has not abused its dominant position and is not
violated § 4 of the SKY. In sum, it is submitted that Quicksilver has not violated § 4 of the
SKY.
D. PRINCIPLES OF NATURAL JUSTICE HAVE BEEN VIOLATED.
(¶ 73.) Natural Justice requires fair play and the decision to be arrived at in a just manner
with regard to the relevance of materials and reasons 141. To meet the standards of natural
justice a fair hearing has to be given to the parties involved and reasons have to be recorded
for the finding.142 It is our submission that no preliminary conference was held to hear the
parties [A] and no appropriate reasons were recorded [B].
A. NO PRELIMINARY CONFERENCE HELD.
(¶ 74.) The NACS has the authority of holding a conference in order to determine whether a
prima facie case exists or not.143 The case of the informant-applicant should have some
strength.144 To fulfil, natural justice principles the parties must be heard while forming any
opinion.145 Here, not only was no preliminary hearing held 146 but NACS expedited the matter
136
137
138
139
140
Jacques Crémer, Competition Policy for the digital era, Competition Law Reports (September, 2019).
141
K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43 (India).
142
BLACK’S LAW DICTIONARY (10th ed. 2014).
143
Competition commission of India (General) Regulations 2009, No. 2 of 2009, Rule 17.
144
Competition Commission of India v. Steel Authority of India Ltd, (2010) 10 SCC 744.
145
GR Bhatia, Ex-Parte Prima Facie order by the Competition Commission of India-A Critique, Competition
Law Reports (August, 2013).
146

due to public pressure and determined the case without evaluating any facts and
evidences.147 All this demonstrates a complete failure of procedure and natural justice.
B. NO APPROPRIATE REASON BEHIND FINDING A PRIMA FACIE CASE.
(¶ 75.) The NACS shall record some reasons 148 while arriving at a prima facie view under
§26(1).149 The Commission must take cognizance of the averments contained in the
information and the supplementary documents.150After analysing the information, the
Commission can pass an order briefly stating the reasons for forming an opinion that there
exists a prima facie case which warrants the investigation by DG.151 The Commission must be
extremely careful before taking any decision since it has serious consequences on the
reputation and credibility to the activities of those parties.152
(¶ 76.) In this case, the Commission neither held a preliminary conference nor did it record
sufficient reasons for showing that a prima facie case existed. The Hon’ble Commission
should therefore be concerned that public pressure has been used to flout natural justice
procedures and grave injustice has been meted out to Quicksilver. In sum, it is submitted that
the Principles of Natural Justice have been violated.
147
Id.
148
PROSECUTING CARTELS WITHOUT DIRECT EVIDENCE OF AGREEMENT (2006),
https://www.oecd.org/daf/competition/prosecutionandlawenforcement/37391162.pdf (Last visited Jan. 14,
2020).
149
Jindal Steel & Power Ltd v. Steel Authority of India Ltd, (2012)107 CLA 278 (CCI).
150
Gujarat Industries Power Company Limited v. Competition Comm’n of India, (2016) SCC OnLine CompAT
500 (India).
151
Air Cargo Agents Association of India v. Competition Comm’n of India, CompLR 2015 (CCI) 683 (India).
152
Bajaj Auto Ltd v. Director General (I&R), (2008) 12 SCC 122 (India).

MEMORIAL for INFORMANTS [PRAYER FOR RELIEF]
PRAYER FOR RELIEF
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
most humbly prayed that this Hon’ble Commission may be pleased to adjudge and declare:
1. That 3+ has violated § 4 of the SKY.
2. That maximum statutory penalty should be imposed upon 3+.
3. That Quicksilver has not violated § 3 of the SKY.
4. That Quicksilver has not violated § 4 of the SKY.
5. That the Principles of Natural Justice have been violated.
And pass any other order that this Hon’ble Commission may deem fit in the interests of
justice, equity and good conscience.
All of which is most humbly prayed
ON BEHALF OF
Kree and COMPSAR
PLACE: SOKOVIA SD/-
DATE: COUNSEL FOR THE
INFORMANTS
6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page | XII

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TEAM CODE – DS

6TH DSNLU NATIONAL MOOT COURT COMPETITION 2020

BEFORE THE HON’BLE NATIONAL AUTHORITY

UNDER SECTION 19(1)(A)

CASE NO. …/2019

CASE NO. …/2019

MEMORIAL FOR INFORMANTS

I. 3+ HAS VIOLATED SECTION 4 OF THE SKY..................................................................1

A. THE RELEVANT MARKET IS THE MARKET FOR SMARTPHONES IN SOKOVIA...............1

B. 3+ IS IN A DOMINANT POSITION IN THE RELEVANT MARKET......................................2

i. 3+ has the ability to operate independently of the competitive forces prevailing

C. 3+’S CONDUCT AMOUNTS TO ABUSE OF DOMINANCE.................................................4

i. 3+has engaged in predatory conduct...................................................................4

II. THERE MUST BE IMPOSITION OF PENALTY ON 3+.......................................................9

III. QUICKSILVER HAS NOT VIOLATED SECTION 3 OF THE SKY.....................................10

A. THE VERTICAL AGREEMENT IS NOT ANTI- COMPETITIVE IN NATURE.......................10

i. There was no agreement.....................................................................................10

ii. Alternatively, there was no ‘refusal to deal’......................................................11

B. THERE HAS NOT BEEN ANY APPRECIABLE ADVERSE EFFECT ON COMPETITION........11

i. The Access To Quicksilver’s Platform Was Not Indispensable For 3+...........11

iii. Quicksilver has Objective Justifications for its conduct.................................13

IV. QUICKSILVER HAS NOT VIOLATED SECTION 4 OF THE SKY....................................13

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

A. THE RELEVANT MARKET IDENTIFIED BY THE DG IS NOT ACCURATE......................13

B. QUICKSILVER IS NOT DOMINANT IN THE IDENTIFIED RELEVANT MARKET..............13

i. Quicksilver Does Not Operate Independently of the Competitive Forces

ii. Presence of other factors....................................................................................14

C. IN ARGUENDO, QUICKSILVER’S CONDUCT DOES NOT AMOUNT TO ABUSE OF

i. Protecting commercial interests.........................................................................15

ii. Quicksilver’s conduct was necessary.................................................................15

iii. Quicksilver had the right to exercise its commercial freedom........................16

V. PRINCIPLES OF NATURAL JUSTICE HAVE BEEN VIOLATED.......................................16

A. NO PRELIMINARY CONFERENCE HELD.....................................................................16

B. NO APPROPRIATE REASON BEHIND FINDING A PRIMA FACIE CASE........................17

PRAYER FOR RELIEF......................................................................................................XII

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

05/2009 (CCI) 2010 (India)...................................................................................................3

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

BOOKS AND ARTICLES

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

COMPETITION (8th ed. Oxford Univ. Press 2018)..................................................................9

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

UNDERTAKINGS ENJOY LIMITED CONTRACTUAL FREEDOM? (2018)

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

THE INFORMANTS HAVE PLACED BEFORE THIS HONOURABLE

II) WHETHER PENALTY MUST BE IMPOSED ON 3+?

V) WHETHER THE PRINCIPLES OF NATURAL JUSTICE HAVE BEEN VIOLATED?

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

I) 3+ HAS VIOLATED § 4 OF THE SKY.

III) QUICKSILVER HAS NOT VIOLATED § 3 OF THE SKY.

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page |

(¶ 2.) To assess a violation of § 4 of the SKY, it is essential to ascertain the relevant

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page | 1

(¶ 6.) Dominance is a position of strength enjoyed by an undertaking which enables it to

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page | 2

E. Market share of the enterprise.

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page | 3

(¶ 15.) The SKY allows an enterprise to be in a dominant position; however, it prohibits

6TH DSNLU NATIONAL MOOT COURT COMPETITION, 2020 Page | 4