Appeal of Food Service Aggregators

TEAM CODE: 021
----------------------------------------------------------------------------------------------------------------
MEMORANDUM OF APPEAL PREFERRED UNDER SUB-SECTIONS (1) AND (2)
OF SECTION 53B OF THE COMPETITION ACT OF VORMIR 2002
IN THE VORMIRIAN COMPANY LAW APPELLATE TRIBUNAL
AT VORMIR
APPELLATE JURISDICTION
[TA (AT) (COMPETITION) NOS. 1-2 OF 2020]
In matter of
Food Service Aggregators ……………………………………………….……… Appellants
Vormirian Association of Restauranteurs &
Competition Commission of Vormir ………………………..………………… Respondents
----------------------------------------------------------------------------------------------------------------
Written Submissions on behalf of the Appellants.
Counsels for Appellants.

THE ELEVENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2020
TABLE OF CONTENTS
LIST OF ABBREVIATIONS.......................................................................................................iv-v
LIST OF AUTHORITIES........................................................................................................vi-xii
STATEMENT OF JURISDICTION...............................................................................................xiii
STATEMENT OF RELEVANT FACTS..................................................................................xiv-xvi
ISSUES FOR CONSIDERATION……………………………………………………………….xvii
SUMMARY OF ARGUMENTS............................................................................................xviii-xix
WRITTEN ARGUMENTS
1. Whether the FSA violated the provisions of Section 3(3) read with Section 3(1) of
the Act........................................................................................................................1-5
1.1.There does not exist any agreement among FSAs which are engaged in provision
of identical and similar service.............................................................................1-3
1.2.The parallel conduct is not indicative of any collusion........................................3-4
1.3.The market is not conducive to the formation of cartel........................................4-5
2. Whether the FSAs violated the provisions of Section 3(4)(e) and Section 3(3) read
with Section 3(1) by way of their APPAs..............................................................6-13
2.1.There exists no agreement to form a ‘hub and spoke’ cartel................................6-7
2.2.The action of FSAs is not indicative of any collusion.........................................8-9
2.3.Non-existence of Resale Price Maintenance.......................................................9-13
3. Whether the FSAs have violated provisions of Section 4 of the Act, collectively
and/or individually (on part of Trimato and/or as part of a single economic
entity).....................................................................................................................14-26
3.1.Trimato is not in violation of Section 4 of the Act.......................................14-22
MEMORANDUM ON BEHALF OF THE APPELLANTS Page ii

3.1.1. The relevant market in the instant case concerns to the ‘market of sale of
food and food related services’.............................................................14-16
3.1.2. Trimato is not a dominant player in the relevant market......................16-18
3.1.3. The differential commissioning by Trimato has been undertaken to meet
competition and it does not result in ‘denial of market
access’...................................................................................................19-20
3.1.4. The conduct of Trimato does not limit or restrict the provision of
services..................................................................................................20-22
3.2.The FSAs cannot be considered as one dominant entity and essentially not in
violation of Section 4 collectively...................................................................22-26
3.2.1. The FSAs do not constitute a ‘single economic entity’........................22-24
3.2.2. Arguendo, the FSAs are not in violation of Section 4 of the
Act.........................................................................................................25-26
4. Whether VAR, along with its member restaurants, violated provisions of Section
3(3) read along with Section 3(1) of the Act........................................................27-32
4.1.There exists an agreement between the members of VAR and essentially that the
members form a cartel.......................................................................................27-32
4.1.1. There exists an anti-competitive agreement between VAR and its member
restaurants indicative of a cartel............................................................27-30
4.1.2. The exorbitant rise in prices is unreasonable and is indicative of
collusion................................................................................................30-32
PRAYER ...................................................................................................................................xx
MEMORANDUM ON BEHALF OF THE APPELLANTS Page iii

LIST OF ABBREVIATIONS
S. NO. ABBREVIATIONS EXPANSION
1. & And
2. AAEC Appreciable Adverse Effect on Competition
3. AIR All India Reporter
4. APPA Across Platform Parity Agreement
5. Art Article
6. B2C Business to Consumers
7. CCI Competition Commission of India
8. CCV Competition Commission of Vormir
9. CJ Court of Justice
10. Cl Clause
11. Cls Clauses
12. Co Company
13. COMPAT Competition Appellate Tribunal
14. Corp Corporation
15. DG Director General
16. EC European Commission
17. Edn Edition
18. EU European Union
19. FSA Food Service Aggregators
20. Ibid Ibidem
21. Inc Incorporation
22. Ltd Limited
MEMORANDUM ON BEHALF OF THE APPELLANTS Page iv

23. No Number
24. OECD Organisation for Economic Co-operation and
Development
25. OFT Office of Fair Trading
26. Para Paragraph
27. Pvt. Private
28. r/w Read with
29. RPM Resale Price Maintenance
30. S Section
31. SCI Supreme Court of India
32. SEE Single Economic Entity
33. SS Sections
34. TFEU Treaty on the Functioning of the European Union
35. The Act The Competition Act 2002
36. U.S. United States
37. UK United Kingdom
38. USSC Supreme Court of the United States
39. V Versus
40. VAR Vormirian Association of Restaurateurs
41. VCLAT Vormirian Company Law Appellate Tribunal
42. Vol Volume
MEMORANDUM ON BEHALF OF THE APPELLANTS Page v

LIST OF AUTHORITIES
TABLE OF CASES
S. NO CASE NAME (SUPREME COURT OF INDIA) PAGE
1. Competition Commission of India v Co-ordination Committee of Artists 04
and Technicians of WB Film and Television and Ors AIR 2017 [31].
2. Sodhi Transport Co. v State of Uttar Prdesh AIR 1980 SC 1099. 05
3. Indowind Energy Ltd. v. Wescare (I) Ltd. and Anr AIR 2010 SC 1793. 22
S. NO CASE NAME (CCI) PAGE
1. Ajay Devgn Films v Yash Raj Films Pvt Ltd &Ors (Case No. 66/2012). 10
2. Association of Third Party Administrators v General Insurer’s 23
Association of India and Ors (Case No. 107/2013).
3. Combination Registration No. C-2015/02/246 Ultra Tech and Jaiprakash 23
Associates Ltd.
4. Combination Registration No. C-2015/03/256 Grasim Industries Ltd 23
and Aditya Birla Chemicals (India) Ltd.
5. Confederation of Real Estate Brokers Association of India v 16
Magicbricks.com &Ors. (Case No. 23/2016).
6. Consumer Online Foundation v Tata Sky Ltd. &Ors (Case No.2/2009). 02, 06
7. Deepak Verma v Clues Network (Case No. 34/2016). 17
8. Delhi Development Authority v Shree Cement Ltd 2010 CTJ 17 09
(COMPAT).
9. Fast Track Call cab Pvt Ltd and Anr v ANI Technologies Pvt Ltd (Case 14, 15,
MEMORANDUM ON BEHALF OF THE APPELLANTS Page vi

No. 6&74/ 2015). 17, 25
10. Indian Foundation of Transport Research and Training v All India Motor 28,30,31
Transport congress and Anr (Case No. 61/2012).
11. Indian National Ship-owners Association v Oil and Natural Gas 19
Corporation Ltd (Case No. 01/2018).
12. Indian Sugar Mills Association v Indian Jute Mills Association 2014 05, 32
CompLR 225.
13. Jasper Infotech Private Limited v KAFF Appliances (India) (Case No. 10
61/2014).
14. M/s Peeveear Medical Agencies, Kerala and Anr v All India 28
Organization of Chemists and Druggists and Ors (Case No. 61/2012).
15. Matrimony.com v Google LLC and Ors (Case No. 07 & 30/2012). 18, 19
16. MCX Stock Exchange Ltd v NSE India Ltd (Case No. 13/2009). 16, 26
17. Meru Travel Solutions Pvt Ltd v M/s ANI Technologies Pvt Ltd and Ors 24, 28
(Case No. 25-28/2017).
18. Mr. RamakantKini v LH Hiranandani Hospital (Case No. 39/2012). 17
19. Neeraj Malhotra vDeustche Post Bank Home Finance (Case No. 01, 02
5/2009).
20. Re: Alleged cartelization by steel producers (Case No. 9/2008). 03
21. Re: Express Industry Council of India v Jet Airways (India) Ltd. &Ors 31
(Case No. 30/2013).
22. Re: Mr. Umar Javeed and Orsv Google LLC and Anr (Case No. 14
39/2018).
23. RKG Hospitalities Pvt Ltd v Oravel Stays Pvt Ltd (Case No. 03/2019). 15
MEMORANDUM ON BEHALF OF THE APPELLANTS Page vii

24. Samir Agrawal v ANI Technologies Pvt Ltd & Ors (Case No. 37/2018). 07, 08,
09,
21, 22
25. Shamsher Kataria v Honda Seil Cars India Ltd &Ors (Case No. 3/2011). 11,13
26. Shri Saurabh Tripathy v Great Eastern Corporation Ltd (Case No. 19
63/2014).
S. NO CASE NAME (US) PAGE
1. Aberdeen Journals v The Office of Fair Trading [2003] CAT 11. 16
2. Blomkest Fertilizer, Inc v Potash Corp of Saskatchewan, Inc., 203. 08
3. Brooke Group Ltd. v Brown & Williamson Tobacco Corp 509 US 209. 03
4. Catalano Inc. v Target Sales Inc. 446 US 643. 29
5. Monsanto Co. v Spray- Rite Service Corp., 465 U.S. 752, 764, 104. S. 09
Ct. 1464, 79 L. Ed. 2d 775 (1984).
6. Re Flat Glass [2004] 385 F3d [360]. 03
7. Tesco Stores Limited v Office of Fair Trading [2012] CAT 31. 02,03
8. Theatre Enterprises Inc. v Paramount Film Distribution Corporation 03
[1954] 346 US 537.
9. United States v Cohen Grocery Co. 255 US 81. 32
S.NO CASE NAME (ECR) PAGE
1. Administración del Estado v Asociación de Usuarios de 30
ServiciosBancarios (Ausbanc), Case C-238/05 [2006] ECR I-11125.
MEMORANDUM ON BEHALF OF THE APPELLANTS Page viii

2. Ahlström and others v Commission, C-89, [1988] E.C.R. 5193. 08
3. Bundesverband der ArzneimittelImporteure eV v Bayer AG (C-2/01 P) 02
[2004] ECR I-23.
4. Konkurrensverket v TeliaSonera Sveige AB Case C-52/09 [2011] ECR 17
I-527.
5. British Airways plc v Commission Case C-95/04 P [2007] ECR I-2331 26
[84].
6. Volkswagen AG v Commission Case T-62/98 [2002] ECR II-2707. 02
7. Compagnie Royale Asturienne des Mones SA v Commission (Case 02
29/83) [1984] ECR 1679.
8. Consten and Grundig v Commission [1996] ECR 299 (342). 32
9. Europemballage Corp and Continental Can Co Inc v. Commission 15,17
[1973] ECR 215.
10. GlaxoSmithKline Services Unlimited v Commission (T-168/01) [2006] 11
ECR II- 2969.
11. Hoffmann-La Roche & Co AG v EC Commission Case 85/76 [1979] 15,17,26
ECR 461.
12. Imperial Chemical Industries Limited v Commission [1972] ECR 619. 31
13. Metropole Television v Commission (T-112/99) [2001] ECR II-2459. 12
14. United Brands v. Commission Case 27/76 [1978] ECR 207. 17,19
S.NO CASE NAME (UK) PAGE
1. RubinetteriaCisal v Commissionn Case T-368/10 EU:T:2013:450. 29
2. European Commission v Volkswagen (Case C-74/04P) [2006] All ER 15
MEMORANDUM ON BEHALF OF THE APPELLANTS Page ix

(D) 187 (Jul).
3. Fresh Del Monte Produce, Inc. v Internationale 31
FruchtimportGesellschaftWeichert GmbH & Co. KG, Case T 587/08.
S. NO ARTICLES & REPORTS PAGE
1. OECD ‘Roundtable on Safe Harbours Legal presumptions in 01
Competition law by India’.
2. GR Bhatia, Combating Cartel in Markets – Issues and Challenges. 02
3. OECD ‘Competition and Barriers to Entry’ 2007. 04
4. OECD ‘Roundtable on Hub-and-Spoke Arrangements – Background 07
Note’.
5. Sahuguet, N. and A. Walckiers ‘Hub-and-Spoke Conspiracies: The 07
Vertical Expression of a HorizontalDesire?’
6. OECD ‘Hearing on Across Platform Parity Agreements’ DAF/COMP 08
(2015).
7. ‘Resale Price Maintenance Agreements in Distribution Agreements’ 11
[2016] HIL.
8. OECD ‘Rethinking Antitrust Tools for Multi-Sided Platforms’ 2018. 18
9. OECD Algorithms and Collusion: Competition Policy in the Digital 21
Age 2017.
10. OECD Common Ownership by Institutional Investors and its impact on 24
Competition 2017.
11. Guidelines on Article 101 of TFEU to Horizontal Cooperation 29
Agreements 2011/C 11/01.
MEMORANDUM ON BEHALF OF THE APPELLANTS Page x

12. Adam Smith, ‘An Inquiry into the Nature and Causes of the Wealth of 30
Nations’ (1776).
TABLE OF STATUTES
S. NO ACTS
1. The Competition Act of Vormir 2002.
2. Vormirian Companies Act, 2013.
S. NO TREATIES
1. European Economic Commission Treaty (1957).
2. Treaty on Functioning of European Union (2007).
S. NO BOOKS
1. Richard Whish & David Bailey Competition Law (8th edn, Oxford University Press
2015).
2. T. Ramappa Competition Law in India- Policy, Issues and Developments (3rd edn,
Oxford University Press 2014).
3. S M Dugar Guide to Competition Law (6th edn, LexisNexis 2016).
4. Einer Elhauge and Damien Geradin Global Competition Law and Economics (2nd
edn, Hart Publishing Ltd 2011).
5. F. Wijckmans, and F. Tuytschaever, Vertical Agreements in EU Competition Law,
106, (2nd edn, Oxford University Press 2011).
6. Versha Vahini, India Competition Law (1st edn LexisNexis 2016).
MEMORANDUM ON BEHALF OF THE APPELLANTS Page xi

7. Abir Roy& Jayant Kumar Competition Law in India (2nd edn Eastern Law House).
8. Alison Jones and Brenda Sufrin, EU Competition Law (5th edn Oxford University
Press).
MEMORANDUM ON BEHALF OF THE APPELLANTS Page xii

STATEMENT OF JURISDICTION
The instant matter concerns anti-competitiveness of agreements subsisting between
parties and also the abuse of dominance in the market economy of Vormir, under
Competition Act of Vormir 2002.
In the matter of
Food Service Aggregators …………………..…………………………….……… Appellants
Vormirian Association of Restauranteurs &
Competition Commission of Vormir ……………………..……..……………… Respondents
The Appellant has approached the Hon’ble Commission under sub-sections (1) and (2) of
Section 53B of the Competition Act of Vormir 2002.
All of which respectfully submitted.
MEMORANDUM ON BEHALF OF THE APPELLANTS Page xiii

STATEMENT OF RELEVANT FACTS
1. The State of Vormir is a large democracy located in South Asia with 30 states. Vormir
has undergone significant economic transformations resulting in growth new age
industries driven by innovation. An offshoot of digitalisation of the Vormirian
economy is the advent of Food Service Aggregators (“FSAs”). Notable FSAs include
Trimato, Ziggy and NomRhino.
2. In December 2019, the Ministry of Consumer Affairs of Vormir (“Ministry”) had
conducted an economic survey and engaged its executive arm, the Department of
Food Inspection to delve deeper into why dissatisfied customers continue to remain
loyal to the FSAs. The Vormirian Association of Restauranteurs (“VAR”), the apex
representative body of the food services industry in Vormir had shared confidential
details in relation to the problems and challenges faced by the restaurant owners due
to the disruptive activities of the FSAs.
3. Ahead of this, VAR had filed an information under s 19(1)(a) of the Competition Act
of Vormir, 2002 (“Act”) before the CCV against the FSAs, inter alia, alleging
contraventions of ss 3 and 4 of the Act (Case No 1 of 2020).
4. It has been alleged that Trimato is dominant in the market for online food aggregation
services in Vormir and has contravened s 4(2)(a)(i) of the Act which has led to denial
of market access under s 4(2)(c) for other restauranteurs. In addition, Trimato and
Ziggy’s acquisition of controlling stake in quick service restaurant has been alleged to
have increased their market power and as a result they have contravened s 4(2)(e) of
the Act.
5. Furthermore, the application of unique software by Trimato on its online platform,
offering recommendations has been alleged to violate s 4(2)(b) of the Act. Also, deep
MEMORANDUM ON BEHALF OF THE APPELLANTS Page xiv

discounts given to customers has been claimed to harm competitive pricing. This has
been regarded as a practice of engaging in predatory pricing which has resulted in
contravention of s 4(2)(a)(ii) of the Act, individually by Trimato, as well as
collectively by the FSAs.
6. In addition, IronBank, a tech-focused private equity investor who along with its
affiliates had made certain investments in Trimato, Ziggy and NomRhino. IronBank’s
common shareholding in the FSAs has been alleged to constitute a ‘single economic
entity’. The market strength of the FSAs taken together has been alleged to have
facilitate abuse of dominance in the market.
7. Further, the FSAs have entered into unique arrangements relating to ‘Across Platform
Parity Agreements’ which has allowed individual FSAs to retain business on their
platform without losing business to a competing FSA. Also, an allegation pertaining
to ‘hub and spoke’ cartel between the FSAs and the restaurants has been made to fix
prices across platforms and has been construed to be in violation of both s 3(4)(e) and
s 3(3) r/w s 3(1) of the Act.
8. The CCV thus, passed an ex parte prima facie order under s 26(1) which was
challenged before the High Court but was however dismissed. Subsequent to which
the DG had filed its investigation report finding contravention on the part of the
FSAs. The CCV, concurring with the findings in the DG’s Report passed the final
order under s 27 of the Act and had imposed a penalty of 5% on the annual turnover
of the FSAs.
9. Additionally, the FSAs filed an information against VAR and its member restaurants
under s 19(1)(a) of the Act, alleging violations of s 3(3) r/w s 3(1) of the Act (Case
No. 2 of 2020) on grounds such as consistent increment in prices of products averring
MEMORANDUM ON BEHALF OF THE APPELLANTS Page xv

it to amount to price parallelism. Also, an allegation pertaining to ‘hub and spoke’
cartel for price fixing between VAR and its member restaurants have been raised.
10. The basis for cartelization has been alleged due to the conduct of collecting and
sharing information through reports prepared by VAR concerning comparative studies
on pricing, reach and services offered by each member restaurant. These reports were
circulated and deliberated at VAR’s bi-annual meeting.
11. The CCV found no prima facie evidence of anti-competitive conduct on part of the
VAR and/or its member restaurants considering the market structure of food services
sector in Vormir and passed an order under s 26(2) of the Act, dismissing the FSAs’
complaint.
12. FSAs filed an appeal before the Vormirian Company Law Appellate Tribunal against
both the orders passed by the CCV. Finally, taking cognizance of the similarities in
the two appeals, the VCLAT has clubbed the appeals together and the matter has been
put for hearing.
MEMORANDUM ON BEHALF OF THE APPELLANTS Page xvi

ISSUES FOR CONSIDERATION
1. Whether the FSAs violated the provisions of Section 3(3) read with Section 3(1) of
the Act?
with Section 3(1) by way of their APPAs?
3. Whether the FSAs violated provisions of Section 4 of the Act, collectively and/or
individually (on part of Trimato and/or as part of a single economic entity)?
4. Whether VAR, along with its member restaurants, violated provisions of Section 3(3)
read with Section 3(1) of the Act?
MEMORANDUM ON BEHALF OF THE APPELLANTS Page xvii

SUMMARY OF ARGUMENTS
1. The actions of FSAs do not violate the provisions of Section 3(3) read with
Section 3(1) of the Competition Act of Vormir 2002.
The alleged tacit agreement persisting amongst the FSAs is based on surmises and
conjectures and that there does not exist any substantial evidence to prove the
existence of such agreement or understanding. Also, price parallelism is an outcome
of good and healthy competition and indicates interdependence in the market and
cannot in itself be regarded as an anti-competitive conduct. Finally, that the market is
not conducive to the formation of cartel and essentially doesn’t indicate collusion in
any manner.
2. The APPAs between FSAs and partner restaurants do not violate the provisions
of Section 3(4)(e) and Section 3(3) read with Section 3(1) of the Competition Act
of Vormir 2002.
The action of FSAs entering into APPAs does not violate the provisions of the
Competition Act of Vormir, 2002. The conditioning through APPAs is an economic
move taken to ensure uniformity in pricing in the market of Vormir. The causation of
appreciable adverse effect on competition is essential for violation of s 3 of the Act.
No such effect is apparent in the instant matter. Further, the allegation pertaining to
the existence of hub and spoke cartel is baseless and misleading. Finally, the conduct
in no way violates s 3(4)(e) and s 3(3) r/w s 3(1) of the Act.
MEMORANDUM ON BEHALF OF THE APPELLANTS Page xviii

3. The FSAs, neither individually not collectively, are not violation of Section 4 of
the Competition Act of Vormir 2002.
Trimato has wrongly been accused of violating s 4 of the Act by virtue of adopting
differential commissioning for using its platform by partner restaurants. Trimato is not
dominant in the relevant market and thus the question of abuse does not arise in the
first place. The differential commissioning by Trimato has been undertaken to meet
competition and that it does not result in denial of market access. Also, that the FSAs
cannot be considered as a ‘single economic entity’ and thus cannot be treated as one
dominant entity. Moreover, the Act does not recognize the concept of ‘collective
dominance’ and thus the question of collective abuse violating s 4 of the Act does not
exist in its entirety.
4. The actions of VAR and its member violate the provisions of the Competition
Act of Vormir 2002.
The alleged concerted action between VAR and its member restaurants is evident
from the exchange and dissemination of confidential and competitively sensitive
information by way of reports prepared by VAR. The similar pricing and exorbitant
rise in prices of products by two-hundred per cent add up to edify the underlying
concerted action between VAR and its member restaurants. The conduct indicates
cartel between VAR and its members and thus the sale of products at such exorbitant
price harms consumer’s interest.
MEMORANDUM ON BEHALF OF THE APPELLANTS Page xix

WRITTEN ARGUMENTS
1. Whether the FSA violated the provisions of Section 3(3) read with Section 3(1) of the
Act?
The Counsels for the Appellant humbly contend that the actions of FSAs are not in violation
of the provisions of the Act. Where s 3(1) r/w s 3(3) and s 2(c) of the Act provide for
prohibition of cartels, it is contended that in the instant matter that there does not exist any
agreement amongst the FSAs let alone a cartel to influence the price of the food products
offered on the online platforms. The contentions laid herein are threefold: [1.1.] There does
not exist any agreement amongst the FSAs which are engaged in provision of identical and
similar services; [1.2.] The parallel conduct is not indicative of any collusion; [1.3.] The
market is not conducive for the formation of cartel.
1.1.There does not exist any agreement among FSAs which are engaged in provision
of identical and similar service.
1. It is humbly contended that for a case concerning to violation of s 3(3) of the Act, the
existence of an agreement is of utmost importance. 1 The sanction under s 3(3) of the
Act requires the existence of an agreement in light of the definition under s 2(b) of the
Act.2 The Commission has observed that the existence of an anti-competitive
agreement must be unequivocally established. 3 Having said that, in lieu of the facts of
the instant matter, there exists no evidence which would indicate the existence of such
an agreement.
1
OECD ‘Roundtable on Safe Harbours Legal presumptions in Competition law by India’ 2017 page 13.
2
ibid.
3
Neeraj Malhotra v Deustche Post Bank Home Finance (Case No. 5/2009) CCI.
MEMORANDUM ON BEHALF OF THE APPELLANTS Page 1

2. Also, cartelization is a serious allegation leading to penal consequences and thus,
cannot be imputed against an association on surmises and conjectures alone. 4 It ought
to be substantiated with reasons and pertinent evidences. Herein, reference is made to
the decisions of the EC5 where the courts have toughened the standards for proof of
agreement in cases of restrictive distribution. 6
3. The CCI has clarified that the definition of cartel under s 2(b) of the Act has the
phrase ‘by agreement amongst themselves’ as its fulcrum which is essential for any
concerted action. 7 Such agreement should not be adduced, assumed or arrived at
through eliminative or wishful reasoning but must be concluded through amassment
of undisputable evidences. 8 The establishing of joint mens rea of non-competition is
imperative and there is nothing to substantiate with reasons and pertinent evidences. 9
Thus, in the present case there does not exist agreement of any kind amongst the
FSAs.
4. In a similar vein, the EC has observed that precise and coherent proof must be
produced by the party or authority alleging infringement.10 The existence of any
‘agreement’ cannot be conjectured or circumstantially adduced. 11 Further, it was
elaborated that a concerted practice has an independent meaning which encompasses
forms of co-operation other than just those belonging to the concept of agreements
between undertakings. 12 Also that, the question whether there exists a concerted
action in a given case could only be determined if the evidence upon which the
4
GR Bhatia, Combating Cartel in Markets – Issues and Challenges (2nd edn, ICFAI University Press,
Hyderabad 2007).
5
Bundesverband der Arzneimittel Importeure eV v Bayer AG C-2/01 P [2004] ECR I-23.
6
European Commission v Volkswagen Case C-74/04P [2006] All ER (D) 187 (Jul).
7
Consumer Online Foundation v Tata Sky Ltd. & Ors (Case No. 2/2009) CCI.
8
ibid.
9
ibid.
10
Compagnie Royale Asturienne des Mones SA v Commission Case 29/83 [1984] ECR 1679.
11
See n 3.
12
Tesco Stores Limited v Office of Fair Trading [2012] CAT 31 [65].

decision was based was considered as a whole, taking account of the specific
characteristics of the market.13 In the absence of any evidence to prove an
understanding amongst the parties to cartelize, there can be no case of violation of s 3
of the Act.14
5. Furthermore, international jurisprudence recognizes that parallel conduct alone is not
a sufficient proof of cartel agreement.15 There must be additional evidence which
proves the existence of unlawful agreement, usually known as ‘plus factors’16 which
could be reasoned from the observation made by the U.S. Court of Appeals where it
said “the court has never held that proof of parallel business behavior conclusively
establishes agreement, or that such behavior itself constitutes a Sherman Act
offence”.17
6. Therefore, having said the aforementioned it is submitted that there is no agreement
which could indicate the cartel arrangement between the FSAs.
1.2.The parallel conduct is not indicative of any collusion.
7. It is contended that mere price parallelism alone cannot indicate collusion since it is a
consequence of interdependence in the market.18 Also, mere similarity in prices or
other features due to unilateral decision making alone cannot be considered as a proof
of an anti-competitive agreement between the firms in the absence of substantially
13
ibid [68].
14
In Re: Alleged cartelization by steel producers (Case No. 9/2008) CCI.
15
Brooke Group Ltd. v Brown & Williamson Tobacco Corp 509 US 209.
16
Re Flat Glass [2004] 385 F3d [360].
17
Theatre Enterprises Inc. v Paramount Film Distribution Corporation [1954] 346 US 537.
18
In Re: Express Industry Council of India v Jet Airways (India) Ltd. & Ors. (Case No. 30/2013) CCI [51].

compelling reasons. 19 Correspondingly, the allegation pertaining to the existence of
price parallelism20 stands abrogated.
8. Rather, it is contended that price parallelism is an outcome of good and healthy
competition and indicates interdependence in the market. Thus, it is submitted that in
the absence of any evidence to prove an understanding amongst the parties to
cartelize, there can be no case for violation of S 3 of the Act.
1.3.The market is not conducive to the formation of cartel.
9. The nature of market attributes as a significant factor in determining a case for
cartelization. It is contended that an oligopolistic market is the most favorable and
fertile ground for cartelization essentially where the entities in the relevant market are
small in number, making it easier to form as well as maintain cartels secretly. 21
10. The SCI has held that there is need to delineate the relevant market prior to the
establishment of a cartel in order to identify in a systematic way the competitive
constraints that the undertaking involved face. 22 In the instant matter, the identified
relevant market is the “market for sale of food and food related services” and it is
contended that the FSAs operate in addition to the existing players in the identified
relevant market and that there exists significantly large number of players, both in the
organized and unorganized food services market. 23 Therefore, the market structure of
food services sector is not conducive to the formation of cartel.
19
ibid.
20
Proposition para 7(h).
21
Versha Vahini, India Competition Law (1st edn LexisNexis 2016) page 73.
22
Competition Commission of India v Co-ordination Committee of Artists and Technicians of WB Film and
Television and Ors AIR 2017 [31].
23
Clarification 12.

11. Additionally, in a cartelized market there are always strong entry barriers 24 which
result in continuous concentration of market forces in the hands of the older players.
Here, in the present market, there doesn’t exists any entry barriers as there are many
other players, both organized and unorganized, operating in the relevant market which
is evident from the market structure of Vormir. 25
12. In addition, the principle of ‘shall presume’, used in s 3(3) of the Act, has been
explained through various judicial pronouncements where the courts have observed
that ‘a presumption is not in itself evidence but only makes a prima facie case for the
party in whose favor it exists’.26 Thus, the presumption of causation of AAEC is
incorrect in the instant matter. The Counsels emphasize that, the presumption of
AAEC under s 3(3) of the Act follows only once an agreement falls under clauses (a)
to (d) of s 3(3) of the Act. 27 Having said that, it is contended that none of the clauses
as mentioned under s 3(3) of the Act are attracted in the instant matter.
13. Conclusively, it is submitted that the FSAs do not contravene the provisions of s 3(3)
r/w s 3(1) of the Act.
24
OECD ‘Competition and Barriers to Entry’ 2007.
25
Clarification 12.
26
Sodhi Transport Co. v State of Uttar Prdesh AIR 1980 SC 1099.
27
Indian Sugar Mills Association v Indian Jute Mills Association 2014 CompLR 225 (CCI).

with Section 3(1) by way of their APPAs.
The Counsels humbly contend that the FSAs have not violated any of the provisions of the
Act by way of APPAs and that there does not exist any sort of cartel. The contentions laid
herein are fourfold: [2.1.] There exists no agreement to form a ‘hub-and-spoke’ cartel; [2.2.]
The action of FSAs is not indicative of any collusion; [2.3.] Non-existence of Resale Price
Maintenance; [2.4.] The agreement between FSAs and partner restaurants have pro-
competitive effects.
2.1.There exists no agreement to form a ‘hub and spoke’ cartel.
1. It is humbly contended that the existence of ‘an agreement among associations of
producers, sellers, distributors, traders or service providers to limit control or attempt
to control the production, distribution, sale or price of, or trade in good or provision of
services’ forms an essential element for the constitution of a cartel in a given case. 28 It
is contended that, the definition of cartel under s 2(c) of the Act has the phrase ‘by
agreement amongst themselves’ as its fulcrum29 i.e. the existence of agreement
between two or more parties is quintessential and in the instant matter there does not
exist any agreement amongst the parties placed on same level of provision of service
i.e. amongst the FSAs. 30
2. Ahead of this, it is contended that allegation against FSAs forming a ‘hub and spoke’
cartel is vague and unsubstantiated. In a conventional sense, the ‘hub and spoke’
model is defined as an arrangement to exchange of sensitive information between
28
See n 28, s 2(c).
29
See n 9.
30
See n 20, para 7(g).

competitors through third party that facilitates the cartelistic behavior of such
competitors.31
3. The US courts while assessing the ‘hub and spoke’ model have concluded that the
‘rim’ connecting the horizontal spokes, who otherwise are just individual parties to
parallel vertical agreements, draws the line between presumptively legal vertical
agreements and illegal horizontal agreements and that it is the rim that establishes the
agreement needed to conclude a per se violation of s 1 of the Sherman Act.32 Also, the
US courts have firmly rejected rimless wheel theories, and considered such cases
mostly as mere parallel conduct that does not imply an illegal agreement, without
further ‘plus’ factors.33 Having said so, in the present case the APPAs are merely
parallel vertical agreements subsisting between the FSAs and the partner restaurants
and thus the vital requirement of a ‘rim’ to form a ‘hub-and-spoke’ model is absent.
4. Further, the CCI while considering the market of ride sharing and ride providing
services, observed that a hub and spoke cartel would require an agreement between all
drivers to set prices through the platform, or an agreement for the platform to
coordinate prices between them. 34 The Commission found no substance in the
allegation pertaining to the existence of a ‘hub-and-spoke’ arrangement since there
did not exist any such agreement between drivers inter-se to delegate the pricing
power to the platform aggregators. In a similar vein, there does not exist any kind of
agreement amongst the FSAs to delegate the pricing power or an arrangement
amongst the FSAs to fix prices in the instant matter. Thus, the existence of ‘hub and
spoke’ cartel is unlikely.
31
In Re: Samir Agrawal v ANI Technologies Pvt Ltd (Case No. 37/2018) CCI.
32
OECD ‘Roundtable on Hub-and-Spoke Arrangements – Background Note’ 2019 page 18.
33
Sahuguet, N. and A. Walckiers ‘Hub-and-Spoke Conspiracies: The Vertical Expression of a Horizontal
Desire?’ Journal of European Competition Law & Practice, Vol. 5/10, (2014).
34
See n 31.

2.2.The action of FSAs is not indicative of any collusion.
5. It is contended that for a cartel to operate as a ‘hub-and-spoke’ there essentially needs
to be a conspiracy to fix prices which requires the existence of collusion in the first
place. 35 The term “collusion” commonly refers to any form of co-ordination or
agreement among competing firms with the objective of raising profits to a higher
level than the non-cooperative equilibrium. 36 While determining collusion, parallel
conduct cannot be regarded as furnishing proof of concertation unless concertation
constitutes the only plausible explanation for such conduct.37 Also, parallelism could
well be the result of the normal interdependence amongst the competitors.38
6. Furthermore, parallel pricing or other matching behavior does not in itself establish
the existence of a combination or conspiracy, nor should it, if it is equally consistent
with the lawful behavior of firms acting separately and independently of one
another.39 Having said that, it is contended that the DG and the Commission have
wrongly inferred and concluded the existence of a collusive behavior based on the
parallel conduct. Also, it is averred that the parallel conduct i.e. entering into APPAs
is a lawful conduct since FSAs have entered into such agreements separately and
independent of each another.
7. In addition, APPAs may be essential not just for future investment in improved
services by the platforms but also for the very existence of the FSAs. 40 Similarly, in
the instant matter given the nature and structure of the market, APPAs form an
35
See n 31.
36
Common definitions of collusion can be found in OECD (1993), O’Sullivan and Sheffrin
(2003) and Green et al. (2013).
37
Ahlström and others v Commission C-89, [1988] E.C.R. 5193.
38
ibid.
39
Blomkest Fertilizer, Inc v Potash Corp of Saskatchewan, Inc 203 F 3d 1028.
40
OECD ‘Hearing on Across Platform Parity Agreements’ DAF/COMP (2015) 6.

essential part for the sustenance in the market of food aggregator services and
therefore it cannot be attributed to a collusive action.
8. Additional evidence is necessary to further bolster the inference of collusion hence the
common statement that what is needed is proof of parallel conduct “plus.” 41 A wide
range of circumstantial evidence can be used to establish the needed plus factor, to
indicate that the parties rather than acting in a merely parallel manner, have actually
acted in concert.42 In lieu of the same, it is contended that the order passed by CCV is
bad in law given that it ignored the fact that the ‘plus factors’ are absent in the instant
matter and that it based its findings on mere parallel conduct.
9. Therefore, based on the aforementioned contentions the Counsels submit that it is
evident that there does not exist any cartel including the ‘hub and spoke’ model. Thus,
the FSAs are not in violation of s 3(3) r/w s 3(1) of the Act.
2.3. Non-existence of Resale Price Maintenance.
10. An agreement for Resale Price Maintenance (“RPM”) is recognized under s 3(4)(e)
of the Act as a vertical imposition whereby a manufacturer/seller dictates the price at
which the product could be resold by the downstream distributor /wholesaler / retailer
(hereinafter, the ‘reseller’). It is contended that an RPM can be of various forms 43,
but the Act generally proscribes a price prescription/agreement where the
agreement imposes a restriction on the resale at a price below the price stipulated in
the agreement between manufacturer and downstream distributor. Having said that, it
is contended that resale is fundamental for an RPM to operate.
41
Delhi Development Authority v Shree Cement Ltd 2010 CTJ 17 (COMPAT).
42
Monsanto Co v Spray- Rite Service Corp 465 U.S. 752, 764, 104. S. Ct. 1464, 79 L. Ed. 2d 775 (1984).
43
See n 31.

11. In context of platform based services, it is contended that the restaurants do not sell
any good or service to the FSAs which the FSAs in turn re-sell to the consumers.
Rather, FSAs act merely as facilitator of the services offered by restaurants when they
operate through the FSA’s platforms. A single transaction takes place between
consumers and restaurants, who provide for a composite service of the restaurants-
consumers matchmaking. Therefore, in the absence of any resale of services, the
allegation of RPM stands untenable.
12. Furthermore, it is contended that the economic literature on RPM suggests that
vertical agreements deserve a ‘rule of reason’ analysis, simply owing to the fact
that the vertical agreements are concluded between entities operating at different
levels in the production chain who generally produce complementary products or
services and are not as such placed in a competitive relationship. 44 In the instant
matter, the incentives of FSAs are generally aligned to that of the end consumer and
that the FSAs are not dependent on each other’s performance. Thus, to establish a
contravention of under s 3(4) r/w s 3(1) of the Act, the causation of AAEC must be
proved.
13. The subject of appreciability is of huge practical importance for the competition. 45
The effect of an impugned agreement is to be considered on the touchstone of the
factors elucidated under s 19(3) of the Act. 46 The CCI held the impugned agreement
as ineffective, and based its reasoning on the fact that ‘the agreement has neither
created any entry barriers for new entrants nor has it drove existing competitors out
of the market, nor is there any appreciable effect on the benefits accruing to the
44
Jasper Info Tech Private Limited v Kaff Appliances India (Case No. 61/2014) CCI.
45
Ajay Devgn Films v Yash Raj Films Pvt Ltd & Ors (Case No. 66/2012) CCI [7].
46
ibid.

ultimate consumers’.47 Similarly, in the instant matter the alleged agreement does not
restrict competition in the relevant market but rather enables the consumers to derive
benefits from the same.48
14. Further, the conditions imposed by the FSAs are in lieu of the prevailing
circumstances in Vormir which majorly caters two aspects; one, protecting the interest
of consumers and second, the development of tech-focused market. Having said that,
it is contended that the imposing certain conditions on restaurants49 in no way affects
the consumer interests. Rather, it helps keep consumer exploitation 50 in check (i.e. the
rise in prices of food product despite minimal change in cost of production) and also
ensures affordable priced food product to consumers.
15. Furthermore, the General Court of the European Union has opined that: “weighing up
the advantages expected from the implementation of the agreement and the
disadvantages which the agreement entails for the final consumer owing to its impact
on competition, which takes form of a balancing exercise carried out in the light of
the general interest appraised at Community level.”51 Thus, while analyzing AAEC
caused by any agreement, it is essential to balance the anti-competitive and pro-
competitive factors mentioned under s 19(3) of the Act.52 The likely pro-competitive
and anti-competitive effects of an agreement are to be evaluated on a case to case
basis, and only a net negative impact on competition renders it illegal. 53
47
ibid [6].
48
Anonymous, ‘Resale Price Maintenance Agreements in Distribution Agreements’ [2016] HIL available at <
http://www.hil-publications.com/wp-content/uploads/2016/03/HILDM-19233-v2-
China_Law_Special_Resale_Price_Maintenance_in_Distribution_Agreements.pdf
49
See n 20, para 7(h).
50
ibid.
51
GlaxoSmithKline Services Unlimited v Commission T-168/01 [2006] ECR II- 2969 [244].
52
Shamsher Kataria v Honda Seil Cars India Ltd & Ors (Case No. 3/2011) [20.6.33].
53
ibid [20.6.33].

16. As regards to the restrictive clauses 54, the creation of foreclosure effects and barriers
to the entry in the market, it is humbly contended that Article 101(3) of the TFEU
provides that an agreement containing restrictive clauses which ‘contributes to
improving the production or distribution of goods or to promoting technical or
economic progress, while allowing consumers a fair share of the resulting benefit’,
will not cause AAEC if such restrictive clauses do not ‘afford such undertakings the
possibility of eliminating competition in respect of a substantial part of the products
in question’. Having said that, it is contended that the restriction on discounts is not
contravening in nature and does not afford undertaking the possibility of eliminating
competition in respect of a substantial part of products in question. 55 Similarly, in the
instant matter, conditions imposed under APPAs do not contravene the provisions of
the Act. Rather, it not only ensures reasonably priced food to consumer but also
creates incentive for new entrants in the market. 56
17. In addition, while considering a model with both horizontal and vertical product
differentiation and possibly different cost levels and the horizontal differentiation,
implies that even when the entrant is of low quality, some consumers may still prefer
it to the incumbent even at identical prices. They do not assume that consumers are
loyal to the point that they require a price reduction to try something new. Thus, the
APPAs increases platform profits and also shows that the APPAs, where it does
encourage entry, can influence the type of entrant measured by how vertically
differentiated it chooses to be.
54
See n 28, s 19(3).
55
Metropole Television v Commission T-112/99 [2001] ECR II-2459 [74].
56
See n 20, para 7(h).

18. Therefore, it is contended that the conditions imposed by APPAs provide incentive
for new entrant to invest.57 Also, it is evident that none of the factors as explicated
under s 19 (3) of the Act are being disregarded in any manner and that the agreement
taken as a whole does not lead to the elimination of competition. 58
19. Conclusively, it is submitted that the action does not amount to causation of AAEC
and that the allegation regarding price fixation under s 3(3) r/w s 3(1) and the
existence of agreement for resale maintenance under s 3(4) r/w s 3(1) is untenable.
57
See n 40.
58
Shamsher Kataria v Honda Seil Cars India Ltd. And Ors. (Case No. 3/2011) CCI [20.6.31].

3. Whether the FSAs have violated provisions of Section 4 of the Act, collectively
and/or individually (on part of Trimato and/or as part of a single economic entity)?
The Counsels most respectfully submitted before this Hon’ble Tribunal that the FSAs have
not violated provisions of s 4 of the Act. The contentions laid herein are twofold: [1] Trimato
is not in violation of s 4 of the Act; [2] The FSAs cannot be considered as one dominant
entity and essentially not in violation of Section 4 collectively.
3.1.Trimato is not in violation of Section 4 of the Act;
It is humbly contended that Trimato is not in violation of s 4 of the Act. The contention laid
herein are fourfold: [1] The relevant market in the instant case concerns to the ‘market of sale
of food and food related services’; [2] Trimato is not a dominant player in the relevant
market; [3] The differential commissioning by Trimato has been undertaken to meet
competition and that it does not result in ‘denial of market access’; [4] The conduct of
Trimato does not limit or restrict the provision of services;
3.1.1. The relevant market in the instant case concerns to the ‘market of sale of food
and food related services’;
1. The Counsels contend that the determination of relevant market is quintessential
while analysing a case concerning to violation of s 4 of the Act.59 The delineation of
the relevant market is essential to ascertain dominance and analyse the alleged
abusive conduct.60 It helps in identifying the competitive constraints faced by
undertakings and provides information such as market power and market share which
help in assessing dominance.61
59
In Re: Mr. Umar Javeed and Ors v Google LLC and anr (Case No. 39/2018) CCI [13].
60
In Re: Fast Track Call Cab Pvt Ltd and anr v ANI Technologies Pvt Ltd (Case No. 6 & 74/2015) CCI [60].
61
Abir Roy & Jayant Kumar Competition Law in India (2nd edn Eastern Law House) page 160.

2. In a similar vein, the EU Courts have stressed that it is necessary to define the
relevant market before a breach of Article 102 TFEU can be established 62 as the
application of the Article requires the existence of a dominant position in a given
market ‘which presupposes that such a market has already been defined’. 63 The
concept of the relevant market in fact implies that there can be effective competition
between the products which form part of it and this presupposes that there is a
sufficient degree of interchangeability between all the products forming part of the
same market insofar as a specific use of such products is concerned. 64
3. It is contended that it is imperative to understand the sector under scrutiny for
delineation of relevant product market and for further assessment. 65 The Counsels
contend that the food services industry has undergone a tremendous change in the last
decade essentially with the emergence of FSAs such as Trimato, Ziggy, NomRhino
etc. which primarily operated as pure aggregators66, inter-alia facilitating transactions
between customers and sellers i.e., business to consumer (“B2C”) transactions in
Vormir. As aggregator of food services, these FSAs provide a platform to restaurant
owners to ‘list’ their restaurants on their web-based applications which are accessible
to potential consumers who order food products from these platform.67
4. While defining the relevant product market under s 2(t) of the Act, all those products
or services which are regarded as interchangeable or substitutable by the consumer,
by reason of characteristics of the products or services, their prices and intended use,
need to be included in the realm of relevant product market.68 The Commission held
that ‘online and offline services of brokers cannot be distinguished. Both are
62
Europemballage Corp and Continental Can Co Inc v Commission Case 6/72 [1973] ECR 215 [32].
63
Volkswagen AG v Commission Case T-62/98 [2002] ECR II-2707 [231].
64
Hoffmann-La Roche & Co AG v EC Commission Case 85/76 [1979] ECR 461 [28].
65
RKG Hospitalities Pvt Ltd v Oravel Stays Pvt Ltd (Case No. 03/2019) CCI.
66
See n 20, para 2.
67
See n 20, para 3.
68
See n 60, [63].

alternative channels of delivering the same service’. 69 Thus, upon an overall
consideration of the market realities and competition dynamics, it is averred that
online and offline provision of food services do not constitute separate relevant
market as they are merely different channels of distribution which are substitutable
and thus the relevant market cannot be taken in a restrictive manner.
5. With regard to the relevant geographic market 70, it is contended that the conditions of
competition are homogenous across Vormir for food and food related services.
Therefore, the relevant geographic market in the present case would be ‘Vormir’.
6. In lieu of the various judicial pronouncements, the Counsels lay emphasis in
determining the relevant market in the instance case. It is contended that the relevant
market is to be defined by reference to the facts in any given case 71 and in lights of the
instant matter the relevant market should be recognised as the ‘market of sale of food
and food related services’. Thus, it is submitted that the ‘market of sale of food and
food related services’ should be identified as the relevant market in the instant case.
3.1.2. Trimato is not a dominant player in the relevant market;
7. It is most humbly contended that Trimato is not dominant in the relevant market. The
CCI described the aspect of dominance and position of strength succinctly as “’the
position of strength’ is not some objective attribute that can be measured along a
prescribed mathematical index or equation. Rather it has to be a rational
consideration of relevant facts, holistic interpretation of seemingly unconnected
statistics or information and application of several aspects of the economy”. 72
69
Confederation of Real Estate Brokers Association of India v Magicbricks.com & Ors (Case No. 23/2016).
70
See n 28, s 2(s) of the Act.
71
Aberdeen Journals v The Office of Fair Trading [2003] CAT 11.
72
MCX Stock Exchange Ltd v NSE India Ltd (Case No. 13/2009) CCI.

8. Similarly, in the definition of dominance as observed in United Brands73and
Hoffmann-La Roche74 has become settled case law,75 where the CJ have noted that
‘dominant position relates to 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, customers and ultimately of its consumers’. 76
9. The Counsels humbly contend that the ability of an enterprise to behave
independently of competitive forces77 ought to be assessed in light of all relevant
circumstances and the factors enlisted under s 19(4) of the Act.78 The market share of
an entity is but one of the indicators which helps in deciding whether an enterprise is
dominant or not, and the same cannot be seen in isolation let alone be conclusive
proof of dominance.79 As concerns to the market share, it is contended that Trimato’s
market share in the relevant market is insignificant and that the collective market
share of the FSAs is less than five per cent in the for food services sector80 in Vormir.
10. The CCI while determining the dominance of an online retail portal, held that online
and offline are not two different relevant markets, but are two different channels of
distribution to the same relevant market. 81
11. Further, the CJ stressed that dominance exists only in relation to a particular market
and not in the abstract. 82 Having said that, the Counsels place reliance on findings of
the CCV where it affirmed the existence of very few operational FSAs while
73
United Brands Co & United Brands Continental BV v Commission of European Communities 1978 ECR 207.
74
See n 64, [38-39].
75
Konkurrensverket v. TeliaSonera Sveige AB Case C-52/09 [2011] ECR I-527 [23].
76
See n 73.
77
See n 28, Explanation (a) to s 4.
78
See n 60, para 71.
79
Mr. Ramakant Kini v L.H. Hiranandani Hospital Powai (Case No. 39/2012) CCI.
80
Clarification 9.
81
Deepak Verma v Clues Network (Case No. 34/2016) CCI.
82
Europemballage Corp and Continental Can Co Inc v Commission Case 6/72 [1973] ECR 215 [32].

considering the market structure of the food services sector in Vormir. 83 The
observation when seen in light of the market share which the five major players in the
organized food services market hold 84 coupled with the fact that there exists many
other players in organized and unorganized market as well85, connote that there exists
competition in the relevant market given the presence of competitors.
12. In addition, the Counsels contend that with multihoming all distribution channels tend
to be substitutes to some extent.86 In the instant matter, given that there exists a
number of players in the market for food services aggregators87 and the dependence
on the services of the FSAs suggest that customers’ multihome. 88 Further, if users try
other platforms, yet chose to return to Trimato, this can only demonstrate that Trimato
successfully competes by offering better and high quality service. The same has been
reaffirmed by the CCI.89 Finally, the Counsels contend that this multihoming
precludes dominance in the instant matter.
13. Similarly, the factors such as market share of the enterprise 90, size and importance of
the competitors91, market structure and size of the market92 have been well established
in the aforementioned paragraphs. Further, given the wide options which are available
to the customers there is no dependence of consumers on one enterprise. 93 Thus, it is
most respectfully submitted that Trimato is not dominant in the relevant market.
83
See n 20, para 12.
84
Clarification 12.
85
ibid.
86
OECD ‘Rethinking Antitrust Tools for Multi-Sided Platforms’ 2018 page 223.
87
Clarification 1.
88
See n 20, para 5.
89
Matrimony.com v Google LLC and others (Case No. 07 & 30/2012) CCI.
90
See n 28, s 19(4)(a).
91
See n 28, s 19(4)(c).
92
See n 28, s 19(4)(j).
93
See n 28, s 19(4)(f).

3.1.3. The differential commissioning by Trimato has been undertaken to meet
competition and it does not result in ‘denial of market access’;
14. A plain reading of s 4(2)(a)(i) of the Act makes it clear that it requires the imposition
of an unfair or discriminatory “condition in purchase or sale of goods or service” to
violate the Act.94 Thus, it is averred that Trimato could violate s 4(2)(a)(i) only if it
placed an unfair or discriminatory condition which it did not. It is humbly submitted
that differential commissioning should not be considered synonymous to
discriminatory commissioning.
15. It is contended that Trimato could infringement of s 4 of the Act, only if enjoys a
dominant position in the relevant market, which it does not, as has been previously
established, it is averred that there arises no question to discriminatory condition or
denial of any kind. Arguendo, the findings of CJ recognised that a dominant firm may
charge different prices to reflect the different economic and competitive conditions in
the different markets on which it operates. 95
16. In addition, it is contended that the allocative effects of differentiation vary from one
market situation to another.96 The CCI noted that “lack of uniformity in itself cannot
be a ground to hold discrimination unless the same is demonstrably shown to be a
result of abuse treating similar set of customers differently.” 97 Further, it is contended
that differentiation in commissions charged has an objective justification i.e. it has
been done to meet competition. 98
17. The commissions are charged differently from the cloud-kitchens and the brick-and-
motor restaurants because these operate differently. In addition, the major players
94
See n 89, [293].
95
See n 73, [227].
96
Richard Whish & David Bailey Competition Law (8th edn Oxford University Press 2015) page 803.
97
Shri Saurabh Tripathy v Great Eastern Corporation Ltd (Case 63/2014) CCI [94].
98
Indian National Ship-owners Association v Oil and Natural Gas Corporation Limited (Case 1/2018) CCI
[135].

operating in the market of food services industry account for a good percentage of
market share which could ascribed to the goodwill which they have earned over the
years as opposed to the cloud kitchens which have only recently entered the market
for food services. Thus, it is submitted that the allegation against Trimato to be in
violation of s 4(2)(a)(i) of the Act is groundless.
18. Furthermore, the averment pertaining to denial of market access resulting out of
difference in commission being charged by Trimato is unsubstantiated and is rather
based upon conjecture and surmise. It is contended that ‘denial of market access’
under s 4(2)(c) encompasses acts done by a dominant undertaking resulting in market
foreclosure for the competitors in the same market or even upstream/downstream
market. In lights of the facts of the instant matter, Trimato’s conduct could neither be
said to be exclusive nor exclusionary. It is averred that Trimato has not denied any
restaurant to list their food products on its platform. Further, where the impugned
conduct is said to have caused denial of market access, it is contended that there’s no
mandate on the restaurants or cloud kitchens to get themselves registered and list their
food products on Trimato or even use Trimato’s platform at the first place.
19. Trimato thus, merely acts as a facilitator, an intermediary which connects two ends of
the supply chain and it is the discretion of the restaurant owners whether or not to
engage in business with Trimato. Having said that, in a situation like the one in the
instant case where there is ample freedom of choice, the allegation against Trimato
infringing s 4(2)(c) of the Act is untenable.
3.1.4. The conduct of Trimato does not limit or restrict the provision of services;
20. It is contended that Trimato is not dominant in the relevant market and thus cannot be
said to be in contravention of s 4(2)(b) of the Act. Arguendo, the alleged conduct of
contravention of s 4(2)(b) of the Act through the unique software put to use on its

online platform by Trimato is baseless. The CCI while dealing with pricing algorithm
observed that the algorithm works on the basis of large sets of data, popularly referred
to as ‘big data’.99 The Commission took note of factors which the algorithm
seemingly takes into account and the resultant is the algorithmically determined
pricing owing to the interplay of large data sets varying from customers to
customers.100 Similarly, in the instant matter, Trimato’s impugned software works on
large sets of data including consumer preference, popularity of food, frequency of
orders, reviews given and other miscellaneous factors.101 The resultant is thus the
recommendation which appears based on the processed set of data.
21. Furthermore, it is contended that data-driven marketplaces are generally associated
with significant efficiencies both on the supply and demand side. On the supply side,
algorithms help increase transparency or improve existing products. As for the
demand side, it may affect the dynamics of the market by supporting consumer
decisions, making them quick and more effective since it provides for new
information on dimensions other than prices, such as quality and consumers’
preferences. 102 In the instant matter, the application of the ‘unique software’ has pro-
competitive benefits since it allows the customers to share their experience with the
food services availed and in turn the platform provides the customers with choices
based on their food patterns and preferences. Thus, these have the potential to create
positive effects on consumers and social welfare.
22. Furthermore, the CCI also opined that ‘the Informant has come to an erroneous
conclusion, without placing any evidence on record, that an algorithm determined
99
See n 31, [15].
100
ibid.
101
Clarification 34.
102
OECD Algorithms and Collusion: Competition Policy in the Digital Age 2017.

price as explained above will eliminate price competition’. 103 It is thus submitted that
in the instant matter as well, no evidence has been placed on record and that the
allegation pertaining to violation of s 4(2)(b) of the Act is merely based on
conjectures and surmises of the Respondents.
3.2.The FSAs cannot be considered as one dominant entity and essentially not in
violation of Section 4 collectively.
The allegation pertaining to the fact that the FSAs constitute a ‘single economic entity’
(“SEE”) by virtue of IronBank’s common shareholding and must be regarded as one
dominant entity, violating s 4 collectively is unsubstantiated and misleading. The arguments
laid herein are two folded [1] The FSAs do not constitute a ‘single economic entity’; [2] The
FSAs do not violate the provisions of s 4 of the Act collectively;
3.2.1. The FSAs do not constitute a ‘single economic entity’;
23. The Counsels for the Appellant humbly submit that the FSAs do not constitute a SEE
by virtue of IronBank’s common shareholding since the said arrangement does not
qualify as a ‘group’ in the instant matter and that the said allegation is
unsubstantiated. The SCI has observed that “the mere fact that two companies have
common shareholders or common Board of Directors, will not make the two
companies a single entity. Nor will existence of common shareholders or Directors
lead to an inference that one company will be bound by the acts of the other.”104
24. It is contended that the Act defines ‘economic unit’ for competition analysis purposes
under s 2(h) and thus ‘enterprise’ as envisaged in s 2 (h) of the Act could include
more than one legal entity.105 To constitute a SEE it is essential to qualify as a ‘group’
103
See n 31, [17].
104
Indowind Energy Ltd. v. Wescare (I) Ltd. and Anr AIR 2010 SC 1793.
105
Combination Registration No. C-2015/03/256 [25].

for which the entities in question must first qualify to be an enterprise. 106 The entities
in question are enterprise within the meaning of s 2(h) of the Act since they are
engaged in the activity of provision of food and food related services. It is contended
that the FSAs do not constitute as a ‘group’ in the instant matter as the conditions
provided under the Act to qualify as a ‘group’ are not satisfied in the instant matter.
The CCI emphasised the assessment of what constitutes a ‘group’107 in line with the
‘group test’. 108
25. Further, under the group test it is essential to satisfy any of the three conditions
stipulated in the definition.109 Having said that, it is contended that IronBank and its
affiliates neither hold more than fifty per cent shareholding 110 in the FSA nor appoint
more than fifty per cent of the Board of Directors111 in the FSAs. Thus, the test for
‘control’ under Explanation (b)(i) and (b)(ii) to s 5 of the Act are not met.
26. As regards the third limb of the definition of ‘group’ in terms of the ability to control
over the management or affairs112, it is submitted that IronBank and its affiliates do
not have any such rights which could be viewed as ‘control’ for the purposes of this
Act. Also that, the Commission in its dissenting opinion while determining SEE noted
that ‘where common shareholding is not above 50 per cent, the entities stand per se
excluded’. 113
27. Further, as regards ‘control’ it is contended that the Explanation to s 2(6) of the
Vormirian Companies Act 2013 defines ‘significant influence’ as control of at least
twenty per cent of total share capital, or of business decisions under an agreement. In
106
Association of Third Party Administrators v General Insurer’s (Public Sector) Association of India and Ors
(Case 107/2013) CCI.
107
See n 28, Explanation (b) to s 5.
108
Combination Registration No. C-2015/02/246.
109
ibid.
110
See n 28, Explanation (b)(i) to s 5.
111
See n 28, Explanation (b)(ii) to s 5.
112
See n 28, Explanation (b)(iii) to s 5.
113
Combination Registration No. C-2015/03/256 dissenting opinion [48].

the instant matter, none of the rights as have been provided to IronBank can be
attributed to the fact that IronBank exercises significant influence or even control as
for that matter over the FSAs.
28. Also, in the context of competition law, there are various degrees of control, each
having a different implication based on associated rights.114 The EU merger review
regime and regimes modelled after it, define control as the possibility of exercising
‘decisive influence’ on an undertaking. 115 Control can be in the form of de facto
control, controlling interest (de jure control) as well as material influence. Material
influence implies the presence of factors which gives an investor the ability to
influence affairs and management of the enterprise. Against this, de facto control
implies a situation where an enterprise holds less than the majority of voting rights,
but in practice exercises control over more than half of the votes actually cast at a
meeting.
29. Having said that, it is contended that the decisions on business strategies are made by
the Board of Directors and are not driven by any individual investor. The CCI has
emphasized that common ownership may lead to softening of competition and it is
possible that the anti-competitive effects of common ownership may arise more as an
error of omission, rather than an error of commission.116 Therefore, it is submitted that
merely one amongst the many seats in the Board of Directors of IronBank does not
afford it with rights and powers to exercise ‘control’ over the FSAs. 117
30. Thus, the alleged violation of provisions of s 4 of the Act following as a consequence
of FSAs being one dominant entity by virtue of IronBank’s common shareholding
constituting it as a single economic entity stands vitiated.
114
Meru Travel Solutions Pvt Ltd v M/s ANI Technologies Pvt Ltd and others (Case No. 25-28/2017) CCI [49]
115
OECD Common Ownership by Institutional Investors and its impact on Competition 2017.
116
See n 114, [56].
117
See n 20, para 7(f).

3.2.2. Arguendo, the FSAs are not in violation of Section 4 of the Act;
31. It is contended that the FSAs are not in contravention of the provision of s 4 of the
Act. Violation under s 4 requires an entity to be dominant in the relevant market and
subsequently abuse such position by engaging in an anti-competitive conduct.
Primarily, it had been alleged that the FSAs constitute one dominant entity and
subsequently had abused their dominant position. 118 Given that, it has already been
established in the aforementioned paragraphs that the FSAs do not constitute as one
dominant entity, the question as to their collective violation of s 4 of the Act in the
relevant market does not arise.
32. Further, the CCI119 vide its final order held in context of allegation pertaining to two
cab aggregators holding a dominant position collectively in the market that the
concept of ‘dominance’ is meant to be ascribed to only one entity and also that the
whole essence of s 4 of the Act lies in proscribing unilateral conduct exercised by a
single entity or group, independent of its competitors or consumers. The CCI further
noted that ‘in s 28 of the Act, which specifically deal with division of enterprises
enjoying dominant position, the usage of the words unambiguously indicates that the
Act does not provide for more than one enterprise to be dominant in the relevant
market.’ Conclusively, it is contended that the Act does not allow for more than one
entity to hold a dominant position within the meaning of s 4 of the Act.
33. Additionally, the Counsels contend that the acquisition of stake in the quick service
restaurant does not afford the FSAs to enter from one relevant market to another and
that the alleged pertaining to manipulation in the downstream market in its own
favour is baseless and not backed by any evidence.
118
See n 20, para 7(f).
119
See n 60.

34. The COMPAT noted that s 4(2)(e) of the Act requires two, distinct relevant markets,
one market where a firm is dominant, and one market where this dominance is
leveraged. 120 It is contended before this Hon’ble Tribunal that the first essential itself
is not fulfilled in the instant matter since FSAs are not dominant in the relevant
market.
35. Further, the Counsels place reliance on the findings in Hoffmann-La Roche v.
Commission121 where the CJ accepted that not all discounts should be treated as
abusive and that discounts fixed objectively and being applicable to all purchasers
would be permissible. 122 Thus, the FSAs are not in violation of s 4(2)(a)(ii) of the Act.
36. Conclusively, it is respectfully submitted before this Hon’ble Tribunal that the FSAs
do not violate provisions of s 4 of the Act, collectively and/or individually.
120
MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd (Case No. 13/2009) CCI.
121
See n 64.
122
British Airways plc v Commission Case C-95/04 P [2007] ECR I-2331 [84].

4. Whether VAR, along with its member restaurants, violated provisions of Section
3(3) read along with Section 3(1) of the Act.
It is most respectfully submitted before this Hon’ble Tribunal that from a competition
perspective what is important is to carefully look at whether the conduct in question
contravenes the provisions of the Act i.e. to analyse the alleged conduct in its substance and
not just in form, especially since competition laws apply to economic activity. The Counsels
humbly submit before that the VAR and its members are not violation of s 3(3) r/w s 3(1) of
the Act. The contentions laid herein are twofold: [1] There exists an agreement between the
members of VAR and essentially that the members form a cartel; [2] Arguendo, there does
not exist any procompetitive effects on competition to outweigh the anti-competitive effects;
4.1.There exists an agreement between the members of VAR and essentially that the
members form a cartel.
It is humbly contended that the action of VAR is in violation of the provisions of the Act. It is
submitted that the agreement between VAR and its member restaurants explicitly violates s
3(3) of the Act. Also, that s 2(c) r/w s 3(1) and s 3(3) of the Act provides for prohibition of
cartels and in the instant matter that there exists a cartel between VAR and the member
restaurants for influencing pricing of the products in the food service sector. The contention
herein laid is twofold: [4.1.1] There exists an anti-competitive agreement between VAR and
its member restaurants which is indicative of the existence a cartel; [4.1.2] The exorbitant rise
in prices is unreasonable and is indicative of collusion.
4.1.1. There exists an anti-competitive agreement between VAR and its member
restaurants indicative of a cartel.

1. It is contended that existence of an agreement/understanding/arrangement between
parties is a pre-requisite to attract the provisions of s 3 of the Act.123 Also, that s 3(3)
of the Act applies not only to an agreement entered into between enterprises or
associations of enterprises or persons or association of persons or between any person
and enterprises but also with equal force to the practice carried on or decision taken
by any association of enterprises or association of persons including cartels, engaged
in identical or similar trade of goods and provision of services which has the purpose
of directly or indirectly fixing prices, limiting output or sales for sharing markets or
customers.124
2. The term ‘agreement’ under s 2(b) of the Act is wide and inclusive in nature to
include any arrangement/understanding/action in concert whether or not such
arrangement or understanding or action is formal or in writing or whether or not such
arrangement or understanding or action is intended to be enforceable by legal
proceedings.
3. The evidence in respect of anti-competitive agreements are usually fragmentary and
sparse, and as such it is often necessary to reconstitute certain details by deduction.
Also, the existence of an anti-competitive practice or agreement has to be inferred
from a number of coincidences and indicia which, taken together may, in the absence
of another plausible explanation, constitute evidence of the existence of an
agreement.125
4. Further, it is not essential that all actions must be demonstrated by an express or
written agreement; it may be inferred from the surrounding circumstances which
123
Meeru Travel Solutions Pvt Ltd v M/s ANI Technologies Pvt Ltd & Co (Case No. 25-28/2017) CCI [37].
124
M/s Peeveear Medical Agencies, Kerala & another v All India Organization of Chemists and Druggists &
others (Case 30/2011) CCI.
125
Indian Foundation of Transport Research and Training v All India Motor Transport Congress and another
(Case No. 61/2012) CCI.

includes the existence of collusive behaviour. 126 It is contended that when a particular
concerted activity entails an obvious risk of anti-competitive impact with no apparent
potentially redeeming value, the fact that a practice may turn to be harmless in a
particular set of circumstances will not prevent it to be declared unlawful per se.127
Similarly, in the instant matter VAR acts like a cartel of member restaurants for its
benefit through substantial increase in prices of food products despite the minimal
change in cost of production. 128
5. In addition, the Guidelines on Horizontal Cooperation Agreements provide guidance
on the concept of concerted practice in the context of exchange of information. 129 The
Guidelines provide for application of Article 101(1) to sharing between competitors
of ‘strategic data’130 that is to say data that reduces strategic uncertainty in the
market.131 It further explains how a unilateral disclosure of strategic information can
give rise to a concerted practice 132 and there is a presumption that, by receiving such
information from a competitor, a firm accepts it and adapts its future conduct on the
market.133 The GC has held a similar view.134
6. In lieu of the same, it is humbly contended that circulation of reports and comparative
studies on pricing, is a clear indication of a concerted action between the members of
the VAR. The analysis of information agreements of the kind require effects analysis
i.e. a full analysis of the exchange in its market context.135 The CJ emphasized that the
compatibility of an information exchange system depends on the economic conditions
on the relevant markets and on the specific characteristics of the system concerned,
126
Abir Roy & Jayant Kumar Competition Law in India (2nd edn Eastern Law House 2016) page 60.
127
Catalano Inc v Target Sales Inc 446 US 643.
128
See n 20, para 11(a).
129
Guidelines on Article 101 of TFEU to Horizontal Cooperation Agreements 2011/C 11/01.
130
OJ [2011] C11/1, para 86.
131
See n 129, para 86.
132
See n 129, para 62.
133
See n 129, para 62.
134
Rubinetteria Cisal v Commissionn Case T-368/10 EU:T:2013:450, para 42.
135
See n 96, page 579.

such as, its purpose and the conditions of access to it and participation in it, as well as
the type of information exchanged. 136 The periodicity of such information and its
importance for the fixing of prices, volumes or conditions of service. 137
7. Ahead of this, it is contended that the understanding may be tacit and the definition
even covers situations where the parties act even on the basis of a nod or a wink138.
The Counsels emphasize that any signal coming from the highest officials of the
association has a great persuasive effect which, has also translates into action. 139 Also,
that the decisions and directions made or issued by the association not only have a
great persuasive value due to the representative character but the resultant is that the
members of the association act upon the same.
8. In the instant matter, VAR acts as the apex representative body of food service
industry in Vormir 140 and has an influence over the actions of the member restaurants.
Therefore, it is contended that the reports prepared and circulated by VAR has a
persuasive value and that the member restaurants rely on the information so provided
in taking strategic decisions essentially concerning to prices of products. This is a
clear indication of the unilateral conduct of anti-competitiveness between the member
restaurants of VAR.
4.1.2. The exorbitant rise in prices is unreasonable and is indicative of collusion.
9. It is contended that rise in prices by the restaurants collectively by two-hundred per
cent is a clear indication of collusion. 141 Although parallel behaviour is not ipso facto
identified as a concerted practice, it may lead to strong evidence of a concerted
136
Administración del Estado v Asociación de Usuarios de Servicios Bancarios (Ausbanc) Case C-238/05
[2006] ECR I-11125 [54].
137
ibid.
138
Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776) V, 1 para 178.
139
Indian Foundation of Transport Research and Training v All India Motor Transport Congress and another
(Case No. 61/2012) CCI [34].
140
See n 20, para 6.
141
See n 20, para 11(b).

practice if it leads to conditions of competition, which does not correspond in the
normal conditions of market having due regard to the nature of the products and the
volume of the said market.142
10. Further, it is contended that a parallel price is legal only when the adaption to the
market conditions is done independently and not on the basis of information
exchanged between the competitors, the object of which is to influence the market. 143
In the instant matter, parallel pricing follows as a consequence of circulation and
dissemination of confidential and competitively sensitive information through the
reports prepared by VAR. 144 The shared information thus, allowed individual
restaurants to draw analogies from these comparative studies and the resultant is the
facilitated parallel pricing.
11. There are other aspects which strengthen and corroborate the existence of an
agreement amongst members of VAR to fix prices. 145 The member restaurants have
increased the prices to an exorbitant scale for each product in tandem during 2019
when compared with the prices in 2018 146 despite the minimal change in cost of
production, input etc.147 This clearly indicates a cartelistic behaviour on part of VAR
and its member restaurants.
12. The concept of concerted practice implies, in addition to the participating
undertakings concerting with each other, subsequent conduct on the market and a
relationship of cause and effect between the two.148 The EC opined that in deciding
whether a concerted practice is prohibited by Article 101(1) of TFEU, there is no need
142
Imperial Chemical Industries Limited v Commission [1972] ECR 619.
143
Express Industry Council of India v Jet Airways (India) Ltd (Case No. 30/2013) CCI.
144
See n 20, para 11(c).
145
Indian Foundation of Transport Research and Training v All India Motor Transport Congress (Case No.
61/2012) [36].
146
See n 20, para 11(b).
147
See n 20, para 11(a).
148
Fresh Del Monte Produce, Inc v Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG, Case
T 587/08.

to take account of its actual effects once it is apparent that its object is to prevent,
restrict or distort competition within the common market.149
13. Therefore, it is contended the power to fix prices, whether reasonably or not, involves
the power to influence the market through fixation of arbitrary and unreasonable
prices. Also, that agreements which create such potential influence may well be held
to be in themselves unreasonable or unlawful restraints, without the necessity of
minute inquiry whether a particular price is reasonable or unreasonable as fixed. 150 In
the instant matter, the action contravenes s 3(3)(a) and s 3(3)(b) of the Act explicitly
and that the agreements falling under any of the sub-clause of s 3(3) of the Act are
presumed151 to be have AAEC.152
14. Conclusively, the Counsels submit that VAR and its member restaurants are in
violation of s 3 of the Act and that there exists a cartel between the member
restaurants violating s 3(3) r/w s 3(1) of the Act.
149
Consten and Grundig v Commission [1996] ECR 299 (342).
150
United States v Cohen Grocery Co. 255 US 81.
151
See n 28, s 3(3).
152
Indian Sugar Mills Association of India v United Producers/Distributors Forum 2011 CompLR 79 (CCI).

PRAYER FOR RELIEF
For the foregoing reasons, it is most humbly submitted before this Hon’ble Tribunal that it
may be pleased to hold, adjudge and pass such directions that:
 The final order passed by the CCV in Case 1 of 2020 is set aside;
 The order passed by the CCV in Case 2 of 2020 is set aside;
 The FSAs do not contravene the provisions of the Act;
 The agreements shall stand modified to the extent and in the manner as may be
specified in the order by the Tribunal; and
 Direct the enterprises concerned to abide by such orders as the Tribunal may pass
and comply with the directions, including the payment of cots, if any and
Pass such other order or issue such directions as it may deem fit.
All of which is most humbly submitted.
(Counsels for the Appellant)
MEMORANDUM ON BEHALF OF THE APPELLANT Page xx

Appeal of Food Service Aggregators

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Appeal of Food Service Aggregators

Uploaded by

Copyright:

Available Formats

TEAM CODE: 021

MEMORANDUM OF APPEAL PREFERRED UNDER SUB-SECTIONS (1) AND (2)

OF SECTION 53B OF THE COMPETITION ACT OF VORMIR 2002

IN THE VORMIRIAN COMPANY LAW APPELLATE TRIBUNAL

[TA (AT) (COMPETITION) NOS. 1-2 OF 2020]

Food Service Aggregators ……………………………………………….……… Appellants

Vormirian Association of Restauranteurs &

Competition Commission of Vormir ………………………..………………… Respondents

Written Submissions on behalf of the Appellants.

Counsels for Appellants.

STATEMENT OF RELEVANT FACTS..................................................................................xiv-xvi

ISSUES FOR CONSIDERATION……………………………………………………………….xvii

of identical and similar service.............................................................................1-3

1.2.The parallel conduct is not indicative of any collusion........................................3-4

1.3.The market is not conducive to the formation of cartel........................................4-5

with Section 3(1) by way of their APPAs..............................................................6-13

2.1.There exists no agreement to form a ‘hub and spoke’ cartel................................6-7

2.2.The action of FSAs is not indicative of any collusion.........................................8-9

2.3.Non-existence of Resale Price Maintenance.......................................................9-13

and/or individually (on part of Trimato and/or as part of a single economic

3.1.Trimato is not in violation of Section 4 of the Act.......................................14-22

MEMORANDUM ON BEHALF OF THE APPELLANTS Page ii

food and food related services’.............................................................14-16

3.1.2. Trimato is not a dominant player in the relevant market......................16-18

3.1.3. The differential commissioning by Trimato has been undertaken to meet

competition and it does not result in ‘denial of market

violation of Section 4 collectively...................................................................22-26

3.2.1. The FSAs do not constitute a ‘single economic entity’........................22-24

3.2.2. Arguendo, the FSAs are not in violation of Section 4 of the

3(3) read along with Section 3(1) of the Act........................................................27-32

members form a cartel.......................................................................................27-32

restaurants indicative of a cartel............................................................27-30

4.1.2. The exorbitant rise in prices is unreasonable and is indicative of

MEMORANDUM ON BEHALF OF THE APPELLANTS Page iii

S. NO. ABBREVIATIONS EXPANSION

2. AAEC Appreciable Adverse Effect on Competition

3. AIR All India Reporter

4. APPA Across Platform Parity Agreement

6. B2C Business to Consumers

7. CCI Competition Commission of India

8. CCV Competition Commission of Vormir

11. Cls Clauses

13. COMPAT Competition Appellate Tribunal

14. Corp Corporation

15. DG Director General

16. EC European Commission

17. Edn Edition

18. EU European Union

19. FSA Food Service Aggregators

20. Ibid Ibidem

21. Inc Incorporation

22. Ltd Limited

MEMORANDUM ON BEHALF OF THE APPELLANTS Page iv

24. OECD Organisation for Economic Co-operation and

25. OFT Office of Fair Trading

26. Para Paragraph

27. Pvt. Private

28. r/w Read with

29. RPM Resale Price Maintenance

31. SCI Supreme Court of India

32. SEE Single Economic Entity

34. TFEU Treaty on the Functioning of the European Union

35. The Act The Competition Act 2002