Winner Team Memorial Petitioner Nluj Antitrust Moot 11 202 Library Nalsarlawunivorg 20220207 183632 1 31

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11th NLUJ Antitrust Moot, 2020

Winner Team Memorial - Petitioner
Before the Hon'ble Vormirian Company Law Appellate Tribunal

Appeal (at) (Competition) Nos. 1-2 of 2020
(Filed under Section 53-B of the Competition Act, 2002)
I N THE MATTER OF
Food Service Aggregators … Appellants;
Versus
Competition Commission of Vormir & Vormirian Association of
Restaurants … Respondents.
TABLE OF CONTENTS
LIST OF ABBREVIATIONS v
INDEX OF AUTHORITIES ix
STATEMENT OF JURISDICTION xxv
STATEMENT OF FACTS xxvii
ISSUES FOR CONSIDERATION xxx
SUMMARY OF ARGUMENTS xxxi
WRITTEN ARGUMENTS 1
ISSUE I:—WHETHER THE FSAS VIOLATED PROVISIONS OF §4 1
OF THE ACT, COLLECTIVELY AND/OR INDIVIDUALLY (ON PART
OF TRIMATO AND/OR AS PART OF A SINGLE ECONOMIC
ENTITY)?
A. THAT THE FSAS OPERATE IN THE RELEVANT MARKET OF FOOD 1
SERVICES AGGREGATION IN THE STATE OF VORMIR
1. The relevant product market is a two-sided market of food 2
services aggregation
2. The relevant geographic market is the State of Vormir 3
B. THAT THE FSAS COLLECTIVELY CANNOT BE TERMED AS DOMINANT 4
WITHIN THE MEANING OF §4 THE ACT
1. The FSAs do not constitute an S.E.E. and accordingly not 4
dominant
(i) The FSAs do not constitute ‘group’ within the meaning of 4
Explanation (b) to §5 of the Act
(ii) There is no effective legal control 5
2. Additionally, collective dominance is outside the purview of 6
§4 of the Act
C. THAT TRIMATO IS NOT DOMINANT IN THE RELEVANT MARKET 7
1. Market share is only an initial indication of dominance 7
2. Trimato cannot betermed dominant within the meaning 8
of§19(4) of the Act
(i) Absence of entry barriers in the relevant market 8
(ii) Dependence of consumers on Trimato is not pe se 9
unrestrained
D. ALTERNATIVELY, THAT THE CONDUCT OF FSAS (COLLECTIVELY 9
AND/OR INDIVIDUALLY) DO NOT CONSTITUTE ABUSE OF DOMINANT
POSITION
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1. The FSAs have not violated the provisions of §4(2)(a) and 4 10

(2)(c) of the Act
(i) Provision of differential pricing is not per se abuse under 10
§4 of the Act
(ii) Requirements of predatory pricing are not met 11
a) Predatory intent cannot be established 11
b) The discounts provided are commercially sound and 12
given in order to meet the competition
2. The FSAs have not violated the terms of §4(2)(b) of the Act 13
3. The FSAs have not abused their dominant position in the 13
relevant market by leveraging their position to enter into
another market
(i) FSAs have not met the conditions for leveraging position 14
(ii) Alternatively, conduct of FSAs is objectively justified 14
ISSUE II:—WHETHER THE FSAS VIOLATED THE PROVISION OF 15
SECTIONS 3(3) READ WITH §3(1) OF THE ACT?
A. THAT THERE IS ABSENCE OF COLLUSION AMONGST FSAS 15
1. There is no anti-competitive agreement between the parties 16
2. Circumstantial evidence adduced is consistent with 17
independent conduct
3. Assuming arguendo, there cannot be horizontal agreement 18
between APPELLANTS and their partner restaurants
B. THAT THE CONDUCT OF APPELLANTS HAS NOT CAUSED AN AAEC 20
1. The APPAs does not drive existing competitors out of the 20
market
2. The agreement between FSAs cause benefits to the 21
consumers and efficiency gains
ISSUE III:—WHETHER THE FSAS VIOLATED THE PROVISIONS 22
OF §3(4)(E) AND §3(3) READ WITH §3(1) BY WAY OF THEIR
APPAS?
A. THE PARITY AGREEMENTS ARE NOT A FORM OF RPM UNDER THE 22
MEANING OF §3(4)(E ) OF THE ACT
1. The FSAs are not the manufacturers of the food services and 22
the products are not sold at a stipulated price set by the FSAs
2. The APPAs do not cause AAEC within the meaning of §19 (3) 23
of the Act
(i) The absence of APPAs might drive the FSAs out of the 24
market
(ii) The APPAs prevent free riding 26
(iii) The APPAs lead to accrual of benefit to consumers and 27
improves provision of services
B. THE APPAS DO NOT FELICITATE A HUB AND SPOKE CARTEL 27
WITHIN THE MEANING OF §3(3) READ WITH §3(1) OF THE ACT
ISSUE IV:—WHETHER VAR, ALONG WITH ITS MEMBER 30
RESTAURANTS, VIOLATED PROVISIONS OF §3(3) READ WITH
SECTIONS 3(1) OFTHE ACT?
A. VAR FELICITATED A COLLUSION AMONGST ITS MEMBER 30
RESTAURANTS
1. There exists a tacit agreement amongst the restaurants 30
felicitated by VAR
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2. The mere fact of exchange of sensitive & confidential 31

information leads to collusion
B. THERE IS A CONSPIRACY AMONGST VAR AND ITS MEMBER 32
RESTAURANTS TO FIX PRICES
1. Price parallelism amounts to price fixing 32
2. The increment of prices by VAR member restaurants cannot 33
be objectively justified & cause AAEC
PRAYER 36
LIST OF ABBREVIATIONS
ABBREVIATIONS MEANING
& And
¶ Paragraph
§ Section
% Percent
AAEC Appreciable Adverse Effect on
Competition
AIR All India Reporter
APPAs Across Platform Parity Agreements
Act Competition Act of Vormir, 2002
Anr. Another
Art. Article
CCI Competition Commission of India
CCV Competition Commission of Vormir
CMLR Common Market Law Report
Cir. Circuit
Co. Company
COMPAT Competition Appellant Tribunal
Comp. LR Competition Law Review
Corp. Corporation
DFI Department of Food Inspection
DG Director General
DG Report Director General Report
EC European Commission
EU European Union
ECJ European Court of Justice
ECLI European Case Law Identifier
ECR European Court Reports
ed. Edition
FAQs Frequently Asked Questions
FSAs Food Service Aggregators
HM Hypothetical Monopolist
High Court High Court of Doomstadt
Hon'ble Honourable
i.e. that is
Ibid ibidem
Id. idem
Inc. Incorporation
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Ltd. Limited
MNC Multi National Corporation
Ministry Ministry of Consumer Affairs of Vormir
No. Number
OP Opposite Party
Ors. Others
(P) Private
Pg. Page
RPM Resale Price Maintenance
RM Relevant Market
SCC Supreme Court Cases
SCCOnline Supreme Court Cases Online
SCR Supreme Court Reporter
SCR Supreme Court Reports
S.E.E. Single Economic Entity
SSNDQ Small but Significant Non-transitory
Decrease in Quality
SSNIP Small but Significant Non-transitory
Increase in Price
Supra see above
TFEU Treaty of Functioning of European Union
UP Uttar Pradesh
VAR Vormirian Association of Restaurants
VCLAT Vormirian Company Law Appellate
Tribunal
v. Versus
INDEX OF AUTHORITIES
STATUTES PAGE NO.
§ 149, The Companies Act, Act 18 of 2013, INDIA CODE (2013). 6
§ 166, The Companies Act, Act 18 of 2013, INDIA CODE (2013). 6
§ 19(3), The Competition Act, No. 12 of 2003, INDIA CODE (2002). 35
§ 2(h), The Competition Act, No. 12 of 2003, INDIA CODE (2002). 1
§ 3(3)(a), The Competition Act, No. 12 of 2003, INDIA CODE (2002). 35
§ 4, The Competition Act, No. 12 of 2003, INDIA CODE (2002). 1
§ 19(3)(b), The Competition Act, No. 12 of 2003, INDIA CODE (2002). 26
§ 2(b), The Competition Act, No. 12 of 2003, INDIA CODE (2002). 17
§ 2(s), The Competition Act, No. 12 of 2003, INDIA CODE (2002). 4
§3, The Competition Act, No. 12 of 2003, INDIA CODE (2002). 31
§ 4(2)(a), The Competition Act, No. 12 of 2003, INDIA CODE (2002). 24
INDIAN CASES PAGE NO

Ajay Devgun Films v. Yash Raj Films (P) Ltd, 2012 SCC OnLine Comp 22
AT 233.
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All India Distillers' Association v. Haidyn Glass Ltd., [2010] CCI. 29

All India Motor Transport Congress v. Indian Foundation of Transport 17
Research & Training, Appeal No. 20 of 2015 (COMPAT).
All India Online Vendors Association v. Flipkart India (P) Ltd., Case No. 4, 27
20 of 2018 (CCI).
All India Organisation of Chemists and Druggists v. CCI, Appeal No. 21 35
of 2013 (COMPAT).
Arshiya Rail Infrastructure Ltd. (ARIL) v. Ministry of Railways (MoR) 6
through the Chairman, Railway Board and Container Corporation of
India Ltd. (CONCOR), [2013] 112 CLA 297 (CCI).
Ashish Ahuja v. Snapdeal and Ors., Case No. 17 of 2014 (CCI). 3
Atos Worldline India (P) Ltd. v. Verifone India Sales (P). Ltd., 2015 14
CompLR 327 (CCI).
Belaire Owners' Association v. DLF Ltd. Haryana Urban Development 1, 10
Authority Department of Town and Country Planning, State of Haryana,
[2011] 104 CLA 398 (CCI).
Builders Association of India v. Cement Manufacturers' Association, 35
Case No. 29 of 2010 (CCI).
Builders Associations v. Cement manufacturers Association, Case no. 29 32
of 2010 (CCI).
CCI v. Artistes & Technicians, (2017) 5 SCC 17. 25
Competition Commission v. Steel Authority of India Ltd. and Anr., 19
(2010) 10 SCC 744.
Consumer Online Foundation v. Tata Sky Limited, Dish TV India 7
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Deepak Verma v. Clues Network (P) Ltd., Case No. 34 of 2016 (CCI). 3
DG (IR) v. Modi Alkali and Chemicals Ltd, 2002 CTJ 459. 18
Dish Tv India Ltd. v. Hathway Cable & Datacom Ltd., Case No. 78 of 7
2013 (CCI).
DLF v. State of Haryana, (2003) 5 SCC 622. 24
Excel Corp Care v. CCI, (2017) 8 SCC 47. 25
Exclusive Motors (P) Ltd. v. Automobili Lamborghini SPA, [2014] 121 7
CLA 230 (CAT).
Faridabad Industries v. Adani Gas Ltd., Case No. 71 of 2012 (CCI). 25
FICCI-Multiplex Association of India v. United Producers/Distributors 36
Forum, Case No. 1 of 2009 (CCI).
Film & Television Producers Guild of India v. MAI, Case No. 37 of 201 17
(CCI).
Film & Television Producers Guild of India v. MAI, Case No. 37 of 2011 33
(CCI).
Fx Enterprise Solutions India (P) Ltd. v. Hyundai Motor India Ltd., Case 29
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Fx Enterprise Solutions v. Hyundai Motor India Ltd., Case No. 36 of 23
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Ghanshyam Das Vij v. Bajaj Corp Ltd, Case No. 68 of 2013 (CCI). 11, 25
H.M.M. Ltd. v. Director General, MRTPC, (1998) 6 SCC 485. 11
In Re, Manufacturers of Asbestos Cement Products Suo-Moto Case No. 35
01 of 2012 (CCI).
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In Re, Suo-Moto Case Against LPG Cylinder Manufactures, 2012 SCC 19

OnLine CCI 12.
In Re, Alleged Cartelization by Steel Producers, Case No. RTPE No. 09 of 32
2008 (CCI).
In Re, Alleged cartelization in supply of LPG Cylinders procured through 21
tenders by Hindustan Petroleum Corporation Ltd. (HPCL) v. Allampally
Brothers Ltd., Case No. 64 of 2014 (CCI)
In Re, Alleged cartelization in the matter of supply of spares to Diesel 18
Loco Modernization Works, Indian Railways, Patiala, Punjab, [2014] CCI
32 (CCI).
In Re, Bharti Airtel Ltd. v. Reliance Industries Ltd., Case No. 03 of 2017 13
(CCI).
In Re, Cartelisation in respect of zinc carbon dry cell batteries market in 36
India v. Eveready Industries India Ltd., Suo Motu Case No. 02 of 2016
(CCI).
In Re, Delhi Jal Board v. Grasim Industries Ltd., [2017] SCC OnLine CCI 6
48.
In Re, Sheth & Co., Case No. 04 of 2013 (CCI). 34
In Re, Meera Metal Industries, RTP Enquiry No. 19 of 1986 (MRTPC). 24
In Re, SCGH v. L & T., [2013] CCI 69. 25
In Re, Federation of Indian Airlines, Case No. RTPE 3 of 2008, (CCI). 18
Indian Sugar Mills Association v. Indian Jute Mills Association (IJMA), 7
2014 CompLR 225 (CCI).
Indian Sugar Mills Association v. Indian Jute Mills Association, [2014] 32
CCI 90.
Jyoti Swaroop Arora v. CCI, (2016) 231 DLT 396. 18
Jyoti Swaroop Arora v. Tulip Infratech Ltd., 2015 CompLR 109 (CCI). 7
Jyoti Swaroop Arora v. Tulip Infratech, Case No. 59 of 2011, (CCI) 31
Crown Theatre v. Kerala Film Exhibitors Federation, Case No. 16 of 29
2014 (CCI).
Gujarat State Electricity Corporation Ltd. v. South Eastern Coalfields 10
Ltd., 2013 CompLR 910 (CCI).
HNG Stock Exchange of India Ltd. v. Competition Commission of India, 8
2014 CompLR 304 (COMPAT).
Manappuram Jewellers (P) Ltd. v. Kerala Gold & Silver Dealers 7
Association, 2012 CompLR 548 (CCI).
Mohan Meakins limited, RTP Enquiry No. 65 of 1984 (MRTPC). 23
Mohit Manglani v. Flipkart India, 2015 SCC OnLine CCI 61. 27
Mr. Om Datt Sharma v. M/s Adidas AG, M/s Reebok International Ltd. 11
and M/s Reebok India Company, 2014 CompLR 180 (CCI).
Mrs. Manju Tharad, Proprietress and M/s. Manoranjan Films, Kolkata v. 4
Eastern India Motion Picture Association, Kolkata and The Censor Board
of Film Certification, Kolkata, [2012] 110 CLA 136 (CCI).
National Insurance Companies Ltd. v. Competition Commission of India, 5
2017 CompLR 1 (COMPAT).
Neeraj Malhotra v. Deutsche Bank, Case No. 5 of 2009 (CCI). 31
Prasar Bharati (Broadcasting Corporation of India) v. TAM Media 11
Research (P) Ltd. Case 70 of 2012 (CCI).
Rajasthan Cylinders and Containers Ltd. v. Union of India, 2018 SCC 19
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OnLine SC 1718.
Rajasthan Cylinders v. Union of India, 2018 SCC OnLine SC 1718. 32
Ramakant Kini v. Dr. LH Hiranandani Hospital Pawai, Case No. 39 of 8
2012 (CCI).
RRTA v. Amar dye Chem, RTP Enquiry No. 51 of 1975 (MRTPC). 24
Saint Gobain Glass India Ltd. v. Gujarat Gas Company Limited, 2015 8
CompLR 431 (CCI).
Samir Agarwal and ANI Technologies (P) Ltd., 2018 SCC OnLine CCI 86. 34
Samir Agarwal v. ANI Technologies, 2018 SCC OnLine CCI 86. 29
Sh. Dhanraj Pillay v. Hockey India, 2013 CompLR 543 (CCI). 15
Shailesh Kumar v. Tata Chemicals Ltd., Case No. 66 of 2011, (CCI). 18
Shri Pravahan Mohanty v. HDFC Bank Ltd. and Card Services Division of 7
the HDFC Bank, Case No. 17 of 2010 (CCI).
Subhas Chanda v. Ganga Prasad, AIR 1967 SC 878. 33
Sunil Bansal v. Jaiprakash Associates Ltd., 2015 CompLR 1009 (CCI). 9
Suresh Chandra v. State of W.B., AIR 1976 Cal 110. 17
Swastik Stevedores (P) Ltd. v. Dumper Owner's Association, 2015 20
CompLR 212 (CCI).
The National Stock Exchange of India Ltd. v. Competition Commission 9, 14
of India, 2014 CompLR 304 (COMPAT).
Three D Integrated Solutions Ltd. v. VeriFone India Sales (P) Ltd., 2015 15
CompLR 464 (CCI).
EUROPEAN UNION CASES AND REGULATIONS PAGE NO.

HFB Holdings fur Fernwarmetechnik Beteiligungsgesellsschaft GmbH & 6
Co. KG v. Commission of the European Communities, [2002] ECR II-
1487.
Areca v. Commission, (2011) ECR-II-63 (EU). 33
Argos Ltd. and Littlewoods Ltd. v. Office of Fair Trading and JBB Sports 30
plc., [2006] EWCA Civ 1318.
Case C-23/14, Post Denmark A/S v. Konkurrencerådet, ECLI : EU : C : 12
2015 : 651.
Case T-340/03, France Telecom SA v. Commission, [2003] E.C.R. II- 2
107 81.
Case C-360/92 P. Publishers Association, [1995] ECR I-23. 21
Case C-413/14, Intel Corporation Inc v. Commission, EU : C : 2017 : 11
632.
Case C-52/09, Konkurrensverket v. TeliaSonera Sverige AB, ECLI : EU : 16
C : 2011 : 83.
Case C-525/16, MEO v. Autoridade da Concorrência, EU : C : 2018 : 11
270.
Case C-62/86, AKZO Chemie BV v. Commission of European 12
Communities, ECLI : EU : C : 1991 : 286.
Case T-201/04, Microsoft Corporation v. Commission, [2007] ECR II 14
3601.
Case T-340/03, France Télécom SA v. Commission of the European 12
Communities, ECLI : EU : T : 2007 : 22.
Case T-83/91, Tetra Pak II v. Commission of European Communities, 12
ECLI : EU : T : 1994 : 246.
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Case T-86/95, Compagnie Generale Maritime, [2002] ECR II 1011. 21

Case T-99/04, AC-Treuhand v. Commission, [2008] ECR II-1501, 130. 30
CBEM v. CLT and IPB, [1985] ECR 3261. 15
Commercial Solvents v. Commission, [1974] ECR 223. 10
COMP/M. 1672, Volvo/Scania [2001] O.J. L 143/74. 2
Hoffman-La Roche & Co. v. Commission, [1979] ECR 461 8
In Re, British Basic Slag Ltd., (1962) LR 3 RP 179. 17
R v. Re A Loyalty Bus Bonus Scheme, (2001) ECC 19. 11
R v. William E. Coutts Co., [1968] 1 O.R. 549. 27
Shell International Company Ltd. v. Commission of European 6
Communities, [1992] ECR II-757.
T-340/03, France Telecom SA v. Commission, [2009] 4 CMLR 25. 4
Treaty on the Functioning of the European Union, art. 101. 33
United Brands v. Commission, [1978] ECR 207. 8
UNITED STATES CASES PAGE NO.

American Needle v. National Football League, 560 US 283 (2010). 5
American Tobacco Co. v. United States, 328 US 781 (1946). 18
Copperweld Corp. v. Independence Tube Corp., 467 US 752 (1984). 19
Dr. Miles Medical Co. v. John D. park, 220 US 373 (1911). 25
Interstate Circuit, Inc. v. United States, 306 US 208. 30
Jefferson Parish Hospital v. Hyde, 466 US 2 (1984). 14
Ohio v. American Express Co., 585 US 201 (2018). 3
United States v. Socony-Vacuum, 310 US 150 (1940). 34
OTHER FOREIGN CASES PAGE NO.

Top Performance Motors Ltd v. Ira Berk (Queensland) Pty. Ltd., (1975) 32
24 FLR 286 (Austl.).
GUIDELINES, REPORTS AND REGULATIONS PAGE NO.

Commission Notice on the definition of relevant market for the purposes 2
of Community Competition Law, (97/C372/03), 2.
Competition Commission of India, Market Study on e-commerce in 26
India : Key Findings and Observations (2020)
European Commission Guidelines on Vertical Restraints, 25
(2010/C130/01) 411.
Guidelines on the Applicability of Article 101 of The Treaty on The 33
Functioning of the European Union to Horizontal Co-operation
Agreements, (2011/C11/01), 86.
Guidelines on the Application of Article 81(3) of the Treaty, 22
(2004/C101/08), 33.
Raghavan Committee Report, Report of High-Level Committee on 20
Competition Policy Law, 4.3-1.
BOOKS PAGE NO.

1 S.M. DUGAR, GUIDE TO COMPETITION LAW (Arijit Pasayat et al. eds., 6th 2, 4, 5, 7,
ed. 2016) 12, 16,
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21, 24, 32
ABIR ROY, COMPETITION LAW IN INDIA : A PRACTICAL GUIDE (2nd ed. 5, 12, 17
2016).
ALISON JONES & BRENDA SUFRIN, EU COMPETITION LAW, TEXTS, CASES AND 15, 21
MATERIALS, (6th ed., Oxford University Press 2016).
JONATHAN FAULL & ALI NIKPAY, THE EU LAW OF COMPETITION (3rd ed. 2014). 3, 12, 13
RICHARD WHISH, COMPETITION LAW (David Bailey, 8th ed. 2017). 27, 28, 33
JOURNAL AND ARTICLES PAGE NO.

Ariel Ezrachi, The Competitive Effects of Parity Caluses on Online 26
Commerce, 55, OLS 88, 101-103 (2015).
Avinash Amarnath, The Oligopoly Problem : Structural and Behavioral 22
Solutions Under the Indian Competition Law, 55, JILI 283, 298-300
(2013).
AZB and Partners, Vertical Agreements in India (2019) 26
Ben Klopack & Nicola Pierri, Vertical contracting and price parity 24
agreements : evidence from hotels in Europe (2016)
Frank Mathewson & Ralph Winter, The Law and Economics of Resale 26
Price Maintenance, 13, REV. IND. ORG. 57, 72 (1998).
Kenneth G. Elzinga & David E. Mills, The Economics of Resale Price 27
Maintenance, 3, ABA SAL 156, 165-166 (2008).
Iga Małobęcka, Hub-and-spoke cartel - how to assess horizontal 29
collusion in disguise?, 8, AKADEMIA LEONA KOŹMIŃSKIEGO 64, 64-78
(2016).
Ittai Paldor, The Vertical Restraints Paradox : Justifying the Different 27
Legal Treatment of Price and Non-Price Vertical Restraints, 58
Lester G. Telser, Why Should Manufacturers Want Fair Trade II, 33, J.L. 28
& ECON. 409, 415-416 (1990).
Maurice E. Stucke, Is Competition always good?, 1, JOURNAL OF 19
ANTITRUST ENFORCEMENT, 162, 162-197 (2013)
William Breit, Resale Price Maintenance : What Do Economists Know 27
and When Did They Know It, 147
William E. Kovacic et. al., Plus Factors and Agreement in Antitrust Law, 34
110, MICH. L. REV. 393, 398-400 (2011).
DICTIONARY PAGE NO.

BRYAN A. GARNER, EIGHTH EDITION, BLACK'S LAW DICTIONARY. 17
STATEMENT OF JURISDICTION
The APPELLANTS have preferred an appeal before the Hon'ble Vormirian Company
Law Appellate Tribunal, 2002 against the final order of the Competition Commission of
Vormir under §27 in Case No. 1 of 2020 and order under §26(2) in Case No. 2 of
2020, in accordance with §53-B of the Competition Act, 2002.
§53-B of the Competition Act, 2002
“Appeal to Appellate Tribunal
(1) The Central Government or the State Government or a local authority or
enterprise or any person, aggrieved by any direction, decision or order referred to
in clause (a) of Section 53-A may prefer an appeal to the Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be filed within a period of sixty days
from the date on which a copy of the direction or decision or order made by the
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Commission is received by the Central Government or the State Government or a

local authority or enterprise or any person referred to in that sub-§and it shall be
in such form and be accompanied by such fee as may be prescribed : Provided
that the Appellate Tribunal may entertain an appeal after the expiry of the said
period of sixty days if it is satisfied that there was sufficient cause for not filing it
within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after
giving the parties to the appeal, an opportunity of being heard, pass such orders
thereon as it thinks fit, confirming, modifying or setting aside the direction,
decision or order appealed against.
(4) The Appellate Tribunal shall send a copy of every order made by it to the
Commission and the parties to the appeal.
(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be
dealt with by it as expeditiously as possible and endeavour shall be made to
dispose of the appeal within six months from the date of receipt of appeal.”
All of which is respectfully submitted
STATEMENT OF FACTS
DESCRIPTION OF PARTIES
Food Service Aggregators [for brevity ‘FSAs’ &/Or ‘APPELLANTS’] namely, Trimato,
Ziggy and NomRhino are the Appellants in the instant matter, they have preferred an
appeal before the Hon'ble Vormirian Company Law Appellate Tribunal [for brevity
‘VCLAT’] against the final order of the Hon'ble Competition Commission of Vormir [for
brevity ‘CCV’] in Case No. 01 of 2020 and order in Case No. 02 of 2020.
APPELLANTS are the independent FSAs located in the State of Vormir, who act as
intermediaries between conventional restaurants and consumers, through their
platforms. RESPONDENTS in the instant case, consist of CCV and the Vormirian
Association of Restaurants [for brevity ‘VAR’], the apex representative body of food
services industry in Vormir.
BACKGROUND
The State of Vormir is a large democracy located in South Asia, having 30 states.
Vormir has undergone significant economic transformations due to improved internet
connectivity, conducive regulatory environment due to ‘Digital Vormir’, increased
availability of smartphones and increase in disposable income of the residents of
Vormir. These factors have led to significant innovation in Vormir and accordingly,
domestic and foreign investors have made heavy investments in new age industries in
Vormir.
TIMELINE OF EVENTS
2010 The FSAs started their operations in the State of Vormir, acting as two-sided
markets and catering to both the restaurants who list their products on the platform of
the FSAs and the consumers who order food products from their platform.
2013 There was a boom in the business of the FSAs due to the conducive
environment and other factors as listed in the background of the case.
2019 The Ministry of Consumer Affairs [for brevity ‘Ministry’] conducted an
economic survey of the e-commerce market and found that there was huge group of
disgruntled consumers who had grievances against the FSAs. However, it was found
that despite facing such problems the consumers were heavily dependent on the FSAs
for their services. The Ministry referred the matter to the Department of Food
Inspection [for brevity ‘DFI’], for delving deeper into the problem. Subsequently, VAR
also approached the DFI and shared confidential details in relation to the disruptive
activities of the FSAs.
2020 CASE NO. 01 OF 2020
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VAR along with several restaurant owners filed an information before the CCV
under §19(1)(a) of the Act. Separately, DFI also referred the matter to CCV. The
VAR in its information had alleged the contravention of §3 and 4 of the Act by the
FSAs. VAR in respect of §4 of the Act alleged the charge of excessive commissions
from the partner restaurants by the Trimato, the leveraging of dominant position by
the FSAs in order to enter the downstream market of conventional restaurants
function, recommendation software of Trimato and predatory pricing by way of deep
discounts, in contravention of different provisions of §4 of the Act. The VAR had also
alleged hub and spoke cartelisation by the FSAs in light of the across platform
parity agreements which were entered into by the FSAs and their partner
restaurants. The CCV heard the VAR and passed an order under §26(1) of the Act,
thereby directing the Director General [for brevity ‘DG’] to conduct an investigation
into the matter. The FSAs challenged the said order before the High Court of
Doomstadt [for brevity ‘HC’], by way of a writ. However, the HC dismissed the writ
petition filed by the FSAs. Consequently, the DG submitted its report and upheld all
the allegations made by VAR against the FSAs and concluded that the FSAs have
contravened the provision of §3 and 4 of the Act. The CCV, concurring with all the
findings of the DG Report passed final order under §27 of the Act.
CASE NO. 02 OF 2020
The FSAs consequent to the final order in Case No. 01 of 2020 filed an
information under §19(1)(a) of the Act against VAR and alleged the violation of §3
(3) read with 3(1) of the Act, on the grounds of hub and spoke cartelisation by the
VAR and its member restaurants, in light of price parallelism, price fixing and
collusive agreement to indulge in anti-competitive activities. The CCV heard the
FSAs and passed an order under §26(2) of the Act as according to it no prima facie
was made out against VAR and its partner restaurants.
PRESENT APPEAL
Aggrieved by the orders of the CCV in Case No. 01 of 2020 and Case No. 02 of 2020
the FSAs preferred separate appeals before the Hon'ble VCLAT under §53-B of the Act.
The Hon'ble VCLAT has clubbed the appeals filed by the FSAs for hearing together in
Appeals [TA (AT) (Competition) Nos. 1-2 of 2020].
ISSUES FOR CONSIDERATION
_________________[ISSUE I]_________________
WHETHER THE FSAS VIOLATED PROVISIONS OF §4 OF THE ACT,
COLLECTIVELY AND/OR INDIVIDUALLY (ON PART OF TRIMATO AND/OR AS
PART OF A SINGLE ECONOMIC ENTITY)?
_________________[ISSUE II]_________________
WHETHER THE FSAS VIOLATED THE PROVISIONS OF §3(3) READ WITH §3(1)
OF THE ACT?
_________________[ISSUE III]_________________
WHETHER THE FSAS VIOLATED THE PROVISIONS OF §3(4)(E) AND §3(3)
READ WITH §3(1) BY WAY OF THEIR APPAS?
_________________[ISSUE IV]_________________
WHETHER VAR, ALONG WITH ITS MEMBER RESTAURANTS, VIOLATED
PROVISIONS OF §3(3) READ WITH §3(1) OF THE ACT?
SUMMARY OF ARGUMENTS
_____________[ISSUE-I]______________
The APPELLANTS respectfully contend that their market conduct does not amount to
abuse within the meaning of section 4 of the Act because, firstly, the APPELLANTS
operate in the relevant market of ‘provision of food services aggregation in the State of
Vormir’ which is a transaction based two-sided market. Secondly, the APPELLANTS do
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not constitute a single economic entity because they do not fall within the ambit of
Explanation (b) of section 5 of the Act and the economic interests of the APPELLANTS
are distinct from one another as they are competitors in the relevant market. Thirdly,
Trimato independently is not dominant in the relevant market as it cannot function
independently of its competitors in the relevant market or affects its competitors or
consumers or relevant market it its favour. Lastly, the conduct of the FSAs does not
amount to abuse within the meaning of section 4 of the Act as the APPELLANTS have not
indulged themselves in either exclusionary or exploitative market conduct. Moreover,
the FSAs have not leveraged their dominant position in the relevant market in order to
enter into market under section 4(2)(e) of the Act as they do not meet the conditions
necessary for leveraging position.
_____________[ISSUE-II]______________
The APPELLANTS respectfully content that they have not violated the provisions of
section 3(3) read with section 3(1) of the Act on account of two reasons, firstly, the
circumstantial evidence relied upon by the DG in its investigation report which was
later upheld by the CCV are only indicative of parallel business behaviour in the
market. The collusion on part of the FSAs by way of an understanding or a horizontal
agreement between the FSAs cannot be proven in the instant case. Secondly, the
conduct of the FSAs is not causing an AAEC, relevant for the purpose of section 3(1) of
the Act, in the relevant market of because the conduct of the FSAs is leading to
accrual of benefits upon the consumers and as such there is no presence of barriers in
the relevant market.
_____________[ISSUE-III]______________
The APPELLANTS respectfully content that a violation of section 3(4)(e) read with
section 3(1) can also not be established because firstly, the APPAs entered into
between the FSAs and their partner restaurants are not in nature of RPM as they are
not the producers of the product and the prices specified are not stipulated prices
which are set by the FSAs. Secondly, the APPAs do not cause AAEC in the relevant
market as they are actually pro-competitive agreements that reduce the possibility of
free riding and accrue benefits to consumers and the provisions of services. Lastly, the
charge of hub and spoke cartelisation is also not made out as there was no meeting of
meeting of mind and collusion on part of FSAs and their partner restaurants.
_____________[ISSUE-IV]______________
The APPELLANTS respectfully contend that there is indeed a requirement of
investigation into the anti-competitive practices of the VAR and its member
restaurants as there is presence of an anti-competitive understanding between the
member restaurants of VAR which is violative of section 3(3) read with section 3(1) of
the Act. This is because, firstly, sensitive information pertaining to the market weas
shared in the bi-annual meetings of the VAR and subsequently there was a significant
increment in prices of the services by VAR member restaurants. Secondly, the VAR
member restaurants have indulged in price and quality fixing on the platforms of the
FSAs which is not objectively justified and cause AAEC in the relevant market.
WRITTEN ARGUMENTS
ISSUE I:—WHETHER THE FSAS VIOLATED PROVISIONS OF §4 OF THE ACT,
COLLECTIVELY AND/OR INDIVIDUALLY (ON PART OF TRIMATO AND/OR AS
PART OF A SINGLE ECONOMIC ENTITY)?
1. It is respectfully contended before the Hon'ble VCLAT that dominance per se is
not prohibited under the scheme of Antitrust Law in the State of Vormir but its abuse
is prohibited.1 The key elements considered while determining the conduct of an
enterprise2 in relation to §4 of the Act3 are, first, the relevant market in which the
enterprise is operating, second, the market power of the entity and third, whether the
conduct of enterprise under investigation amounts to abuse.4
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2. Accordingly, the APPELLANTS respectfully contend, first, the FSAs operate in the
relevant market of provision of food aggregation in the State of Vormir [A], second,
the FSAs collectively cannot be termed as dominant entity within the meaning of §4 of
the Act [B], third, Trimato is individually not dominant in the Relevant Market [C] and
fourth, alternatively, the conduct of FSAs either individually or collectively does not
constitute abuse of dominant position within the meaning of §4 of the Act [D].
A. THAT THE FSAS OPERATE IN THE RELEVANT MARKET OF FOOD SERVICES AGGREGATION
IN THE STATE OF VORMIR
3. It is humbly contended that for the purpose of determining the dominance of an
enterprise or a group under §4 of the Act, it is essential to delineate the relevant
market5 in which the enterprise or group is functioning.6
4. In the instant case, the APPELLANTS are operating in the relevant market of
provision of food aggregation for in the geographical region of Vormir for two reasons,
first, the relevant product market is a two-sided market in which the FSAs are
intermediaries [1] and second, the relevant geographical market is the State of Vormir
[2].
1. The relevant product market is a two-sided market of food services
aggregation
5. It is contended that a relevant product market7 comprises of all those products
and/or services which are regarded as interchangeable or substitutable by the
consumer, by reason of the products' characteristics, their prices and their intended
use.8 In addition, substitutability is an essential parameter which is considered while
determining a relevant product market.9 Furthermore, the SSNIP test10 or the HM test
is taken into due consideration while determining the product market for the purpose
of ascertaining the dominance of an enterprise or a group in a relevant market.11
6. Keeping in view the aforesaid, the FSAs cater to both the restaurants who list
their food products on their platform and the customers who order food products from
their platform and the restaurants.12 Furthermore, there is presence of ‘indirect
network effects’.13 Therefore, the market so defined must include both sides of the
markets i.e. the restaurants and the ultimate consumers.14
7. Assuming arguendo, it is accordingly contended that in the instant case, the
relevant market ought to be considered as ‘provision of food services aggregation’,
while treating the offline and online markets as different channels of distribution of the
same product and not as two distinct relevant markets.15
2. The relevant geographic market is the State of Vormir
8. It is contended that the relevant geographical market16 in the instant case, ought
to be taken as the entire geographical region of the State of Vormir.17 This is because,
as per the Act, relevant geographic market comprises the area in which conditions of
competition are distinctly homogeneous.18
9. Additionally, for the purpose of provision food services aggregation, the
conditions of competition are homogeneous pan-Vormir and accordingly, the relevant
geographical market in the instant case ought to be taken as ‘State of Vormir’.19
B. THAT THE FSAS COLLECTIVELY CANNOT BE TERMED AS DOMINANT WITHIN THE
MEANING OF §4 THE ACT
10. The analysis of the dominance under §4 of the Act is done in relation with an
enterprise or a group of enterprises as defined under §5 of the Act.20 Accordingly, the
APPELLANTS contend, first, the FSAs do not constitute an S.E.E. and accordingly not
dominant [1] and second, collective dominance is outside the purview of §4 of the Act
[2].
1. The FSAs do not constitute an S.E.E. and accordingly not dominant
11. It is respectfully contended that while interpreting the relationship between two
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or more enterprises qua S.E.E., regard is placed upon the economic interests of the
enterprises in question, their de facto economic relationship and the nature of
relationship that exist between them.21
12. APPELLANTS therefore contend that first, they fall outside the definition of ‘group’
under §5 of the Act [i], second, there is absence of effective legal control [ii] and
third, the economic interests of the FSAs are distinct and separable [iii].
(i) The FSAs do not constitute ‘group’ within the meaning of Explanation (b)
to §5 of the Act
13. It is respectfully submitted that §4 of the Act provides that no enterprise or
group shall abuse its dominant position.22 Therefore, an entity which is not an
enterprise or collection of enterprises that do not form part of the group will not be
considered under §4 of the Act.23
14. Furthermore, group under §5 of the Act requires two or more enterprises, either
directly or indirectly, to have twenty six percent or more voting rights in the other
enterprise or capacity to appoint more than fifty percent of the members of the board
of directors or existence of control over the management or affairs of the other
enterprise.24 Moreover, there must be an existence of de jure or de facto control
between the enterprises.25
15. In the instant case, however, there is absence both de facto and de jure control
in the functioning and management of the FSAs, which are separate legal entities.
Moreover, the existence of certain investments of fifteen present in Trimato, five
percent in Ziggy and eight percent in NomRhino by the IronBank, with a board seat in
each does not effectively establish that the FSAs collectively constitute a group under
explanation (b) of the §5 of the Act.26
(ii) There is no effective legal control
16. There must be an existence of effective legal control over the management and
functioning of an enterprise over the other in order to term them as a single economic
entity.27 It is contended that the day to day affairs of the FSAs are managed by their
respective board of directors which take decisions that are in best interest of the
economic interest of the respective FSA.28
17. It is further submitted that the IronBank has limited shareholding rights in the
FSAs and only one seat in the Board of Directors of the FSAs.29 Accordingly, it is
contended a substantial degree of effective legal control which is required in order to
term two or more enterprises as a single economic entity cannot be established in the
instant matter.30
2. Additionally, collective dominance is outside the purview of §4 of the Act
18. The Antitrust Law scheme of Vormir does not recognize collective abuse of
dominance.31 The word ‘group’ used under §4 of the Act does not refer to group of
independent corporate entities or enterprises.32 In fact, it refers to different
enterprises belonging to the same group in terms of control of management or
equity.33 Additionally, there must be collective decision making and exercise of joint
dominance which can only be exercised by a group.34
19. Accordingly, it is submitted that the APPELLANTS cannot be regarded as
collectively dominant in the relevant market as they do not constitute a group and
possess separable economic interests with distinct decision-making exercise.35
C. THAT TRIMATO IS NOT DOMINANT IN THE RELEVANT MARKET
20. An enterprise must hold a position of strength qua its competitors in the given
relevant market in order to be termed as dominant within the meaning of §4 of the
Act.36 The strength should enable the enterprise to operate independently of
competing forces prevailing in the relevant market or to affect its competitors or
consumers or the relevant market in its favour.37
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21. In this vein, the APPELLANTS contend that first, Trimato in not dominant in the
relevant market as market share is only an initial indication of dominance [1] and
second, Trimato does not meet the host of stipulated factors mentioned under §19(4)
of the Act [2].
1. Market share is only an initial indication of dominance
22. It is respectfully submitted that market share of an equity is only one of the
factors that decides whether an enterprise is dominant or not, but that factor alone
cannot be decisive proof of dominance.38 Additionally, where an enterprise has a large
market share, it may be constrained by that of its other large competitors.39 It is
further submitted that a consistently high market share may also be the result of a
firm's ability to stay ahead of its rivals through constant innovation and develop ment
of products that appeal to the consumers.40
23. Accordingly, market share of sixty percent of all orders per month for the past
eleven months of Trimato cannot be treated as a sole criterion in order to term Trimato
dominant in the relevant market of food aggregation in the geographical region of
Vormir.41
2. Trimato cannot be termed dominant within the meaning of §19(4) of the
Act
24. Due regard is to the factors enunciated under §19(4) of the Act while inquiring
into the dominance of an enterprise in a given relevant market.42 Accordingly, it is
submitted that first, Trimato is not dominant in the relevant market as there is
absence of entry barriers [i] and second, the dependence of consumers on Trimato is
not per se unrestrained [ii].
(i) Absence of entry barriers in the relevant market
25. The presence of entry barriers for new entrants and high cost for substitutable
goods or services for consumers is a useful criterion in order to determine the
dominance of an enterprise in a relevant market.43 However, the presence of large
number of options to the consumers from a range of products available in the relevant
geographic market is demonstrative of the absence of entry barriers/foreclosure of
competition.44
26. It is contended that there is rapid growth of new age industries in the State of
Vormir which includes FSAs45 and adding to that there is strong presence of other
companies in the relevant market which offer identical services as provided by
Trimato, in the relevant market. Accordingly, Trimato cannot be termed dominant
within the meaning of §4 of the Act.46
(ii) Dependence of consumers on Trimato is not pe se unrestrained
27. The heavy dependence of customers on an enterprise is an important factor for
attributing dominance.47 However, in the instant case, the dependence of consumers
on the services of Trimato is not unrestrained.48 It is submitted that there is presence
of other strong competitors i.e. Ziggy and NomRhino which are operating in the
relevant market.49 Accordingly, dominance ought not to be attributed upon Trimato in
the present matter.
D. ALTERNATIVELY, THAT THE CONDUCT OF FSAS (COLLECTIVELY AND/OR
INDIVIDUALLY) DO NOT CONSTITUTE ABUSE OF DOMINANT POSITION
28. It is humbly submitted before the Hon'ble VCLAT of the State of Vormir that the
conduct of APPELLANTS either collectively or individually does not constitute ‘abuse’
within the meaning of §4 of the Act as first, the FSAs have not violated the provisions
of §4(2)(a) and 4(2)(c) of the Act [1], second, the FSAs have not contravened §4(2)
(b) of the Act [2], and third, the FSAs have not abused their dominant position by
leveraging their position to enter into another market [3].
1. The FSAs have not violated the provisions of §4(2)(a) and 4(2)(c) of the Act
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29. In this vein, the APPELLANTS respectfully contend that they have not violated the
terms of §4(2)(a) of the Act as first, the charge of differential commissions in not per
se abuse under §4 of the Act [i] and second, the FSAs have not indulged in predatory
pricing [ii].
(i) Provision of differential pricing is not per se abuse under §4 of the Act
30. It is humbly submitted that for a trade practice to be unfair, it must be found
that it causes loss or injury to the consumer.50 Furthermore, usual methods of
competition are permitted and will only become unfair or discriminatory if there are
particular instances which make competition to provide services obstructive.51
Moreover, the difference of margins must be substantial in order to be termed abusive
within the meaning of §4 of the Act.52
31. Keeping in view the aforesaid and the effect-based approach,53 the differential
charge of commissions by Trimato from its partner restaurants is not in contravention
of the §4(2)(a)(i) of the Act as it is based upon intelligible differentia54 and
accordingly, the charge of denial of market access in violation of §4(2)(c) of the Act is
also not made out.55
(ii) Requirements of predatory pricing are not met
32. The APPELLANTS contend that the discounts provided by them to the consumers
are not in contravention of the provision of §4(2)(a)(ii) of the Act as first, predatory
intent cannot be established [a] and second, the discounts provided are commercially
sound and given in order to meet the competition [b].
a) Predatory intent cannot be established
33. Intention on part of the dominant enterprise to reduce competition or eliminate
competitor is a consideration while determining predatory pricing abuse in §4(2)(a)(ii)
of the Act.56 Furthermore, the instances wherein the prices of a product/service are set
below the average variable costs the predatory intent of the dominant undertaking can
be presumed but the same cannot be presumed when prices are above average
variable costs but below average total costs.57 Moreover, the ‘no economic sense’ test
for prices below average variable costs is a test of intent.58
34. In the instant case, all the FSAs are providing deep discounts to the consumers
while they place an order for food on their platform but the said practice cannot stand
alone be termed as predatory since the FSAs operate in a two-sided market wherein
they engage with both their partner restaurants as well as the consumers.59
35. Additionally, it is essential to establish the pricing policy of a dominant
enterprise is producing an actual or likely exclusionary effect, to the detriment of
competition and thereby, of consumers interests.60 However, the conduct of the
APPELLANTS establishes the fact that there is no exclusionary effect in the relevant
market and accordingly the pricing policy of the FSAs does not establish predatory
intent on their part.
b) The discounts provided are commercially sound and given in order to meet
the competition
36. It is respectfully contended that objective justification can be afforded on the
pricing policy by a dominant enterprise.61 In the instant case, the market of online
food aggregation is relatively new from the conventional food services market and
accordingly require promotion and awareness among the consumers.62 Therefore, the
FSAs are following their policy of providing discounts to the consumers.
37. Assuming arguendo, market expanding efficiencies63 is also a justification for
the below cost pricing policy of the FSAs as they have a relatively lower marker
presence when the entire food services sector is considered.64
38. Additionally, the FSAs operate in an oligopolistic market wherein all the
competitors are following sympathetic pricing policy. Therefore, the pricing policy
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which is adopted by the individual FSAs is done in order to meet competition in the
relevant market of food aggregation.65 Accordingly, the pricing policy of the FSAs is
not anti-competitive within the meaning of §4(2)(a)(ii) of the Act.
2. The FSAs have not violated the terms of §4(2)(b) of the Act
39. Technical or scientific development relating to goods or services which is to the
prejudice of consumers is treated as abuse under §4(2)(b) of the Act.66 It is
contended that ‘prejudice to the consumer’ is an appropriate test in order to test
abuse in such cases.67
40. In this vein, it is contended that the unique software developed by Trimato
makes certain recommendations to the customers to for ordering the food on its
platform on the basis of previous orders which were placed by the relevant consumer
and the ratings which are obtained by the partner restaurants from other consumers.68
41. However, the said software is developed for providing better services to the
consumers and is only recommendatory in nature.69 Moreover, consumers are free to
weigh their options and order the food that they prefer and the same is not violative of
§4(2)(b) of the Act.70
3. The FSAs have not abused their dominant position in the relevant market by
leveraging their position to enter into another market
42. A dominant enterprise or a dominant group of enterprises must be dealing in
two distinct relevant markets for the purpose of abuse under §4(2)(e) of the Act.71
Further, the conduct of the dominant enterprise must not be objectively justified.72
43. Accordingly, the APPELLANTS contend that their conduct cannot be regarded as
abuse under §4(2)(e) of the Act because of two reasons, first, the FSAs have not met
the conditions for leveraging position [i] and second, the conduct of FSAs is justified
[ii].
(i) FSAs have not met the conditions for leveraging position
44. It is necessary for an enterprise or a group of enterprise to be dominant in one
relevant market for the purpose of violation of §4(2)(e) of the Act.73 In the instant
case, the FSAs collectively or Trimato are not dominant in the relevant market of
provision of food services aggregation.
45. Accordingly, the APPELLANTS cannot be said to have abused their dominant
position by leveraging its position to enter the conventional market of food services
where the regular restaurants operate.74
(ii) Alternatively, conduct of FSAs is objectively justified
46. It is respectfully submitted that objective justification for anti-competitive
practice can be afforded by a dominant enterprise in against an allegation of violation
of §4(2)(e) of the Act.75 Additionally, the conduct of dominant enterprise must lead to
substantial elimination of competition in the secondary market due to the restriction
on the availability of input for the purpose of abuse under §4(2)(e) of the Act.76
47. In the instant case, the APPELLANTS are charging commissions in the range of 15
-20% from their partner restaurants.77 The rates of commission which are charged by
the FSAs differ on the basis of individual contracts which are entered into by the FSAs
after negotiations. Furthermore, the cloud kitchens are relatively new in the market of
food services and accordingly lesser commission is charged from them.78
48. Additionally, the charge of commissions in the range of 15-20% does not cause
foreclosure of competition in the secondary market as the input is not indispensable79
to the relevant market and there is no refusal thereof.80 Accordingly, the conduct of
FSAs in not in violation of §4(2)(e) of the Act.
ISSUE II:—WHETHER THE FSAS VIOLATED THE PROVISION OF SECTIONS 3(3)
READ WITH §3(1) OF THE ACT?
49. It is respectfully contended before the Hon'ble VCLAT that the APPAs as
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agreements between the FSAs and their partner restaurants do not violate the
provisions of §3(1) read with §3(3) of the Act because of two reasons, first, there is no
collusion between the FSAs [A] and second, the conduct of FSAs do not cause AAEC
[B].
A. THAT THERE IS ABSENCE OF COLLUSION AMONGST FSAS
50. APPELLANTS contend that there is no existence of collusion between them
because, first, there is absence of anti-competitive agreement between them [1],
second, circumstantial evidences adduced is consistent with independent conduct [2]
and third, there cannot be horizontal agreement between the FSAs and their partner
restaurants [3].
1. There is no anti-competitive agreement between the parties
51. Agreement has been defined inclusively81 under Sec. 2(b) of the Act.82
According to the provisions of the Act, an agreement may be in writing or oral or may
be enforceable by legal proceedings or not.83 Moreover, the basic requirement for
establishing an arrangement is that the parties to it shall have communicated with one
another in some way.84
52. In the instant case, there was no communication85 between the FSAs at any
level and the parallel business conduct in absence of any evidence of communication
at any level is not sufficient for the purpose of establishing the existence of an anti-
competitive agreement between two enterprises.86 Additionally, it is submitted that
merely following a price leader and adopting the price announced by him would not
essentially imply an arrangement as it lacks mutuality.87
53. Keeping in view the aforesaid, it is submitted that adoption of parallel business
behaviour, though may be admissible as circumstantial evidence, cannot be taken to
establish an arrangement.88 Accordingly, in absence of agreement or understanding,
the FSAs cannot be held liable for entering into anti-competitive agreements within
the meaning of §3(3) read with §3(1) of the Act.89
2. Circumstantial evidence adduced is consistent with independent conduct
54. APPELLANTS contend that it is a settled proposition of law that proof of conscious
parallel business behaviour is circumstantial evidence but such evidence, is insufficient
unless the circumstances under which it occurred make the inference of rational,
independent choice less attractive than that of concerted action.90
55. It is also contended that in an investigation of cartelization, the first issue to be
established is whether there was an agreement and then the behaviour of the
members of the cartels had to be seen with reference to the said agreement.91 The
existence of a cartel can only be presumed on the basis of the behaviour of the
members of the alleged cartel.92 Merely because two or more enterprises are doing
similar or identical thing, will not find an agreement within the meaning of §3(1)
unless some meeting of their minds or common intention to do so is established.93
56. Further, in absence of any conclusive evidence of concerted action, the
‘preponderance of possibility’ is considered.94 However, the facts said to indicate
towards the possible collusion are not established as the FSAs are competing against
each other in the relevant market and merely trying to gain profits.95
57. The Sherman Act from which the Act has been inspired, is a comprehensive
charter of economic liberty aimed at preserving free and unfettered competition as the
rule of trade.96 Therefore, the Act also happens to encourage free and fair competition
in the market, which means the motive of gaining profits does not contravene any
provision, as long as it is well within the limits prescribed by law.97 Furthermore, it can
be stated that the similarity in price between FSAs is due to the nature of the
services.98
58. Accordingly, in the mere presence of circumstantial evidence, the
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‘preponderance of possibilities’ cannot be presumed to be the gravest one, when there

are multiple other circumstances that could have occurred as a result of the said
circumstances the existence of a horizontal agreement between the FSAs cannot be
established.99
3. Assuming arguendo, there cannot be horizontal agreement between
APPELLANTS and their partner restaurants
59. Horizontal agreement can only exist between the competitors operating at the
same level in the economic process i.e., agreement between wholesalers or retailers.100
In light of the aforesaid, the APPAs in the instant matter can't fall within the ambit of
Sec. 3(3) as the parties to the agreement i.e., FSAs and their partner restaurants are
not operating at the same level.
60. It is also pertinent to note that the agreement can only be entered into being in
the same line of production.101 This, however, cannot be held to be applicable here, as
the alleged entities don't fall within the same production line.
61. APPELLANTS contend that they act as platforms which cater to the restaurants to
list their food services as well as the consumers to order food services therefrom.102 It
is contended that the partner restaurants of the FSAs are the producers of the food
services while the FSAs only act as intermediaries between the restaurants and the
ultimate consumers.
62. Keeping in view the aforesaid, it is contended that the line of production is not
same and accordingly there cannot be a horizontal agreement between the two.103
Moreover, the FSAs are not a part of the production chain to begin with, as it is not
performing any of the tasks prescribed to the entities involved within the same,
including manufacture, production and so on.104
63. Further, the parity agreements are bilateral in nature between the FSAs and
restaurant owners so that products are charged similarly on all FSAs platform.105
Accordingly, there cannot be any horizontal agreement between the FSAs and their
partner restaurants and the APPAs entered in between them are vertical agreements
which are not per se anti-competitive in nature.106
B. THAT THE CONDUCT OF APPELLANTS HAS NOT CAUSED AN AAEC
64. AAEC is an essential requirement of § 3(1) of the Act which can be established
by having due regard to all or any of the factors contained in § 19(3).107 Accordingly,
the submission of the APPELLANTS is two-fold, first, APPAs are not driving existing
competitors out of the market [1] and second, these agreements cause benefits to the
consumers and efficiency gains [2].
1. The APPAs does not drive existing competitors out of the market
65. It is submitted that the APPAs entered into by the FSAs does not drive existing
competitors out of the market. The elimination of competition in the market depends
on the degree of competition existing prior to the agreement and on the impact of the
restrictive agreement on competition.108 For this purpose, the market share of the
parties is considered.109
66. Assuming arguendo, the market share of the FSAs in the relevant market of
‘provision of online food aggregation’ is consistent even post entering into parity
agreements with the partner restaurants. Moreover, there are also no evidences of
driving of existing competitors out of the market or foreclosure of competition by
hindering the entry into the market or price fixing and causing adverse effect.110
Accordingly, the conduct of the FSAs does not cause AAEC in the relevant market.
2. The agreement between FSAs cause benefits to the consumers and
efficiency gains
67. Firms that are collaborating on some socially valuable activity may need to
agree to do away with competition so as to establish the cooperative society.111
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Restrictive contract which are designed to promote use of energy efficient

manufacturing processes, technological innovation and production of eco-friendly
products is explicitly permitted as exception.112
68. Accordingly, the parity agreements create price parity, which allows the
restaurant to publish the lowest price they can offer, and because of the FSA's polices
of parity agreements the restaurants eventually had to reduce their prices113 which has
led to consumer benefit which has been neglected by commission.114
69. Moreover, in absence of price parity restriction, competition on non-price
parameters may also be harmed, thereby adversely affecting the scientific and
technological innovation in the relevant market.115 Accordingly, the conduct of the
FSAs does not cause AAEC in the relevant market.
ISSUE III:—WHETHER THE FSAS VIOLATED THE PROVISIONS OF §3(4)(E) AND
§3(3) READ WITH §3(1) BY WAY OF THEIR APPAS?
70. It is respectfully contended before the Hon'ble VCLAT of the State of Vormir
that the FSAs has not violated the provisions of the provisions of §3(4)(e) and 3(3)
read with §3(1) of the Act because of two reasons, first, the parity agreements are not
a model of RPM [A] and second, the APPAs do not felicitate a hub and spoke cartel
within the meaning of §3(3) read with §3(1) of the Act [B].
A. THE PARITY AGREEMENTS ARE NOT A FORM OF RPM UNDER THE MEANING OF §3(4)(E)
OF THE ACT
71. APPELLANTS respectfully contend that the APPAs are not a form of RPM within the
meaning of §3(4)(e) of the Act because of two reasons, first, neither are the FSAs
manufactures of the products and nor there is not a fixed price at which the products
are portrayed at the platforms of the FSAs [1] and second, if the APPAs are indeed a
form of RPM, they do not cause an AAEC [2].
1. The FSAs are not the manufacturers of the food services and the products
are not sold at a stipulated price set by the FSAs
72. Stipulation of a price to sell a particular product/service at a specific price is
RPM.116 In order to felicitate RPM the supplier or manufacturer has to be the one to
restrict the price.117 In the instant case, the FSAs have not indulged in any agreement
which stipulates a price.118
73. Further, it is submitted that the parity agreements are different than RPM as
they do not fix a minimum price of sale rather they felicitate, price parity to curb price
discrimination119 which is also illegal as per the Act.120 Accordingly, it is submitted that
the APPAs entered into by the FSAs are not detrimental to the provisions of the Act
but in furtherance of the principles enshrined under §18 and preamble of the Act.121
74. Additionally, to be RPM no choice is given to the supplier or enterprise to
deviate from the price and in cases of breach of RPM the supplier may withhold the
goods.122 However, in the instant case the supplier itself are the restaurants and
accordingly the requirement is not met.123
75. Assuming arguendo, the FSAs do not in any manner dictate their partner
restaurants to frame prices on their will, they are free to follow their individual pricing
policy and the FSAs do not provide them with a list of prices which may lead to
RPM.124 Accordingly, it is submitted that the APPAs do not amount to RPM.125
2. The APPAs do not cause AAEC within the meaning of §19 (3) of the Act
76. The antitrust law scheme in Vormir is governed by the rule of reason.126 It is
submitted that even if an agreement entered into by two enterprises is a manner of
RPM, it will not be per se illegal.127 Moreover, it is necessary to show that the vertical
agreement causes an appreciable adverse economic affect128 with regard to the factors
prescribed by §19(3)129 of the act.130 In other words, it is necessary to conclude that
there is AAEC.131
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77. It is humbly submitted that competition does not happen in a void,132 for it the
determination of relevant market is necessary to evaluate AAEC.133 Hence, it is
submitted that the relevant product market is the ‘provision of food services’134 and
the vertical restraints actually cause a positive effect on competition135 and can
accordingly be justified on the grounds of objective justification.136
78. In this vein, the submission of the APPELLANTS is there-fold, first, the absence of
APPAs might drive the FSAs out of market [i], second, the APPAs prevent free riding
[ii] and third, the APPAs lead to accrual of benefits upon the consumers and improves
the provision of service [iii].
(i) The absence of APPAs might drive the FSAs out of the market
79. Elimination of competitors is to be given due regard while evaluation of a
vertical restraint.137 It is submitted that the parity agreements do not create barriers
to competition as they do not in any manner promote price differentiation138 rather
profess price parity.139 Further, if the restaurants are allowed to price differently on
different sales channels, it will lead to the elimination of the competitors as they will
charge differently on different platforms.140
80. The fact that the restaurant might quote a lower price to Trimato and higher to
Ziggy will lead to the elimination of Ziggy, as customers will use Ziggy and not
Trimato for ordering food Therefore, in order to survive in the market, parity
agreements are vital and will deliver a pro-competitive effect in the instant case.141
81. It is further submitted that the e-commerce sector is a new sector in Vormir
and the FSAs have only boomed recently142 within a very less time143 RPM might
actually create demand144 but the FSAs are running into losses.145 Therefore, such
practices of RPM are necessary to retain competition, as difference in prices will led to
the distortion of the entire business model of the FSAs.
(ii) The APPAs prevent free riding
82. It is submitted that the e-commerce sectors being new146 bring the issue of
free riding with it147 which is prevalent economic problem since 1995.148 Further, the
platforms of the FSAs are different, the investments are different, so in case if
tomorrow a new FSA enters the market with very less investment and just provide
delivery, charging very less commission to the restaurants, then the people will use
the platforms of Trimato, Ziggy and NomRhino to view the product get all the
information and then buy it from the cheapest of all149 as customers use online market
to compare prices150 leading to another FSA taking a free ride on the investment of
another FSA,151 and hence will lead to the problem of free riding.152
83. Further, the recommendation software of FSAs recommends restaurants
through its software.153 It is submitted that consumers will use the platform of FSAs to
see its recommendation but not actually buy from there.
84. Hence, the parity agreements will help the market flourish by ending the
problem of free riding154 which was completely ignored by the commission155 while
imposing the penalty upon the FSAs under §27 of the act.156
(iii) The APPAs lead to accrual of benefit to consumers and improves provision
of services
85. It is humbly submitted that, the parity agreements create price parity, which
allows the restaurant to publish the lowest price they can offer, and because of the
FSAs polices of party agreements the restaurants eventually had to reduce their
prices157 which has led to consumer benefit which has been neglected by
commission.158 Moreover, due to the reduction of prices across platform the
restaurants have stopped giving hygienic food159 and have entered into foul practices.
86. Assuming arguendo, the parity agreements have led to scientific progress in
the field of e-commerce as due to them the FSAs do not have to worry about the new
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competitors taking free ride, they can focus on the delivery services. It is submitted
that as there is no price discrimination, the FSAs can actually look forward to
innovation and technology and brand of its services.160
B. THE APPAS DO NOT FELICITATE A HUB AND SPOKE CARTEL WITHIN THE MEANING OF
§3(3) READ WITH §3(1) OF THE ACT
87. It is humbly submitted that the penalty on the FSAs on violation of §3(3)161 is
unjustified as the sine qua non of §3 is an agreement.162 There is no fact in the entire
proposition to indicate any sort of agreement to fix prices or cartelization in any
manner and hence, the CCV has wrongly penalized the FSAs under the Act.
88. It is submitted that the commission has penalized the FSAs on the grounds of a
hub and spoke cartel.163 A traditional hub-and-spoke cartel is one wherein there is
exchange of strategic information between horizontal competitors (spokes) by the
means of a common contractual partner active at a different level of the distribution
chain (the hub), who often also contributes to stabilizing a cartel.164 It is contended
that in the scheme antitrust law the need of an agreement is necessary.165 Hub and
spoke is a single collusive agreement where the allegation is that the FSAs advocated
the decrease in prices of the restaurants listed on their platforms.166
89. The intent of a cartel is to increase price167 and not decrease, it is not
economically sustainable for a cartel to reduce their prices, and the agreement is
eventually leading to reduction of prices.168 The fact that the competition has
increased and the VAR has to reduce their prices in order to compete with the FSAs is
the sole reason VAR filed a case against the FSAs.169
90. Additionally, hub and spoke cartel involves a dominant purchaser and needs an
evidence of collusion.170 However, there is no concrete fact to show that there has
been a horizonal agreement between the FSAs and the FSAs have actually increased
competition in the market.171
91. A mere existence of a common partner, as in this case the FSAs172 does not
leads to a hub and spoke173 and in order to conclude that the FSAs are indeed a hub
which led to hub and spoke, it is necessary to show that there was meeting of mind
between the FSAs and the restaurants.174
92. However, in absence of these evidences the DG has come to the conclusion175
that the FSAs and some of the restaurants formed a hub and spoke cartel176
complementing to which the CCV wrongly imposed a penalty on the FSAs.177
ISSUE IV:—WHETHER VAR, ALONG WITH ITS MEMBER RESTAURANTS,
VIOLATED PROVISIONS OF §3(3) READ WITH SECTIONS 3(1) OF THE ACT?
93. It is respectfully contended that VAR along with its member restaurants has
violated §3 of the Act by way of a hub and spoke cartel because of two reasons, first,
there was collusion amongst the members of VAR [A] and second, the hub and spoke
cartel amongst the VAR and its member restaurants has caused an AAEC in Vormir
[B].
A. VAR FELICITATED A COLLUSION AMONGST ITS MEMBER RESTAURANTS
94. In this vein, the APPELLANTS contend that first, there is a tacit agreement
amongst the members of VAR [1] and second, the fact that there has been an
exchange of sensitive and confidential information is a proof of collusion [2].
1. There exists a tacit agreement amongst the restaurants felicitated by VAR
95. It is contended that there exists an agreement between enterprises which
might cause an AAEC is barred by the mandate of the act under §3.178 It is submitted
that the agreement must be a contract is not essential, but a formal understanding.179
The fact that the members of VAR agreed upon certain anti-competitive practices180
can be gathered by their motive and conduct.181 It is also to be noted that a presence
of an association is also a threat to competition as they might provide a platform to
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agree on anti-competitive practices182 and VAR as an association, is also prone to

cartelization.183
96. An agreement which leads to cartelization is condemned across the globe by
world competition authorities184 and the CCI also condemns it.185 The VAR and its
members have felicitated an agreement to collude which can be inferred by the
abnormal increase in prices on the FSA's platforms.186
97. It is contended that the fact that there were marginal differences in the cost of
productions,187 but just to hamper the competition VAR felicitated this increase in
price being the hub. It is submitted that the fact that parties involved have expressed
their joint intention to conduct themselves in fashion which harms competition is a
proof of an agreement.188
98. Accordingly, it is submitted that VAR and its member restaurants are
collectively indulged into anti-competitive activities such as serving sub-standard
quality of food and beverages, non-cooperation on part of their servers with the FSAs
delivery personnel and use of sub-standard infrastructure etc., for delivery orders
which depicts the presence of horizontal agreement.189
2. The mere fact of exchange of sensitive & confidential information leads to
collusion
99. The exchange of information is a relevant factor which contribute to collusion.190
The EU commission of competition has penalized numerous cartels where exchange of
information was illegal191 and unlawful.192 Collusion is akin to a secret conspiracy to do
something against the law193 which the VAR is felicitating for the restaurants by the
way of bi-annual meetings.194
100. It is submitted that the exchange of strategic data is detrimental to
competition and also most likely to violate Article 101(1) of the TFEU.195 In the instant
case, there is explicit exchange of strategic data leading to collusion196 which is
regarding pricing policies & services which was felicitated by the hub which is VAR.197
B. THERE IS A CONSPIRACY AMONGST VAR AND ITS MEMBER RESTAURANTS TO FIX
PRICES
101. APPELLANTS respectfully contend that first, price parallelism can be considered
as a valid proof of fixing prices [1] and second, the increment of prices by VAR
member restaurants cannot be objectively justified [2].
1. Price parallelism amounts to price fixing
102. Price parallelism is an additional economic circumstantial evidence which is a
‘plus factor’ while determining the presence of cartelization by enterprises placed at
the same level of production chain.198 Parallel Pricing does not require uniform prices,
and permits prices within an agreed upon range.199 Moreover, price parallelism in the
context of cartelization is a situation wherein the prices of a commodity changed due
to the concerted effort of enterprises in order to form a cartel in the market.200
103. It is submitted that in the present matter, in comparison to 2018, there is
almost 200% increment of the prices in 2019 by the VAR members on the FSAs
platform which lead to a necessary inference of the practice of price parallelism.201
Further, it is submitted that the increase in the prices of food services by the member
restaurants of VAR is unwarranted as there is no evidence of hyper-inflation or other
change in circumstance which justifies an overall increase of 200% in prices of the
food services by the members restaurants of VAR.202
104. Accordingly, it is submitted that in light of the aforesaid, there is a need to
further investigate upon the price behaviour of member of VAR restaurants as there is
presence of plausible economic evidence.203
2. The increment of prices by VAR member restaurants cannot be objectively
justified & cause AAEC
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105. There is no change in demand of food in Vormir and yet increase in prices is
something which goes beyond the preview of a reasonable person, and hence not a
logical thing to do.204 The fact that the consumers will not have an option to switch as
VAR members are the big 5 of all the restaurants in Vormir205 and the FSA's brick and
mortar outlet is less than 5% of the entire market.206
106. It is submitted that the conduct of the parties has caused AAEC in the
relevant market of provision of food service aggregation in the State of Vormir, making
the agreement between the VAR and its member restaurants anti-competitive207 and
in contravention of §3(3) read with §3(1) of the Act.208
107. Once existence of prohibited agreements, practice or decision enumerated
under §3(3) of the Act is established there is no further need to show an effect on
competition because then a rebuttable presumption is raised that such conduct has an
AAEC and is therefore anticompetitive.209
108. In the present matter, agreement between VAR and member restaurants
forms price fixing cartel. An agreement for the provision of services which directly or
indirectly determines sale prices is presumed to have AAEC.210 Price fixing in the food
service sector is also subject to Article 101(1) of the TFEU.211 Price fixing may be
achieved indirectly by agreeing on certain elements of price like increment of price.212
109. It is submitted that the VAR along with member restaurants indirectly yet
jointly determined the price of each item which results in consistently increment of
200% of price. Determining or fixing the price in the market form cartelization and
cause violation of §3(3)(a) and led to AAEC.213
PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited,
the Counsel of the Appellants most respectfully pray that this Hon'ble Tribunal may be
pleased to:
a. Hold that the FSAs have not violated the provisions of the §3(3) read with §3(1)
of the Act;
b. Hold that the FSAs have not violated the provisions of the §3(4)(e) and §3(3)
read with §3(1) of the Act;
c. Hold that the FSAs do not constitute a single economic entity;
d. Declare that Trimato individually is not dominant in the relevant market of
provision of online food aggregation in the State of Vormir;
e. Hold that the FSAs neither collectively nor individually have violated the
provisions of §4 of the Act;
f. Set aside the order of CCV in Case No. 01 of 2020 and penalty imposed thereof;
g. Set aside the order of CCV in Case No. 02 of 2020 and direct the DG to hold an
investigation into the anti-competitive activities of VAR and its member
restaurants.
AND/OR
Permit any other relief that this Hon'ble Tribunal may be pleased to grant in
the interest of justice, equity and good conscience.
And for this demonstration of kindness, the Appellants shall forever be duty
bound ever humble pray.
1
Belaire Owners' Association v. DLF Ltd. Haryana Urban Development Authority Department of Town and
Country Planning, State of Haryana, [2011] 104 CLA 398 (CCI).
2 §2(h), The Competition Act, No. 12 of 2003, INDIA CODE (2002) [for brevity ‘Competition Act’].
3 Competition Act, supra note 2, §4.
4
1 S.M. DUGAR , GUIDE TO COMPETITION LAW 423 (Arijit Pasayat et al. eds., 6th ed. 2016) [for brevity ‘SM Dugar’].
-----------------------------------------------------------------------------------------------------------------------------------------------------------
5 Competition Act, supra note 2, §2(r).

6 Matrimony.com Ltd. v. Google India (P) Ltd., Case No. 07 and 30 of 2012 (CCI).
7
Competition Act, supra note 2, §2(t).
8 See: Commission Notice on the definition of relevant market for the purposes of Community Competition Law,
(97/C372/03), ¶2.
9SM Dugar, supra note 4 at 127; See also: Case T-340/03, France Telecom SA v. Commission, [2003] E.C.R. II-
107, ¶81.
10
See: Case COMP/M. 1672, Volvo/Scania [2001] O.J. L 143/74, ¶56.
11 JONATHAN F AULL & ALI NIKPAY , T HE EU LAW OF COMPETITION 47 ¶1.147, (3rd ed. 2014) [for brevity ‘F&N’].
12 Moot Proposition, ¶3.
13
Ohio v. American Express Co., 585 US 201 (2018); See also: Times-Picayune Publishing Co. v. United States,
345 US 594 (1953).
14 F&N, supra note 11 at 48, ¶1.148.
15Ashish Ahuja v. Snapdeal and Ors., Case No. 17 of 2014 (CCI); See also: Deepak Verma v. Clues Network (P)
Ltd., Case No. 34 of 2016 (CCI).
16
Competition Act, supra note 2, §2(s).
17 All India Online Vendors Association v. Flipkart India (P) Ltd., Case No. 20 of 2018 (CCI), ¶26.
18 Case T-340/03, France Telecom SA v. Commission, [2009] 4 CMLR 25, ¶81.
19
See: Moot Proposition, ¶2.
20 SM Dugar, supra note 4 at 421; See also: Mrs. Manju Tharad, Proprietress and M/s. Manoranjan Films,
Kolkata v. Eastern India Motion Picture Association, Kolkata and The Censor Board of Film Certification, Kolkata,
[2012] 110 CLA 136 (CCI).
21 American Needle v. National Football League, 560 US 283 (2010).
22
ABIR RO Y , COMPETITION LAW IN INDIA : A PRACTICAL GUIDE 158 (2nd ed. 2016) [for brevity ‘Abir Roy’]
23 SM Dugar, supra note 4 at 422.
24
Competition Act, supra note 2, §5, Explanation (b).
25
National Insurance Companies Ltd & Ors v. Competition Commission of India, 2017 CompLR 1 (COMPAT).
26Arshiya Rail Infrastructure Ltd. (ARIL) v. Ministry of Railways (MoR) through the Chairman, Railway Board and
Container Corporation of India Ltd, (CONCOR), [2013] 112 CLA 297 (CCI).
27
Shell International Company Ltd. v. Commission of European Communities, [1992] ECR II-757; See also: HFB
Holdings fur Fernwarmetechnik Beteiligungsgesellsschaft GmbH & Co. KG and Others v. Commission of the
European Communities, [2002] ECR II-1487.
28
§166, The Companies Act, Act 18 of 2013, INDIA CODE (2013).
29 See: §149, The Companies Act, Act 18 of 2013, INDIA CODE (2013).
30 In Re, Delhi Jal Board v. Grasim Industries Ltd., [2017] SCC OnLine CCI 48.
31
SM Dugar, supra note 4 at 451.
32 See: Indian Sugar Mills Association v. Indian Jute Mills Association (IJMA), 2014 CompLR 225 (CCI).
33
34
Consumer Online Foundation v. Tata Sky Limited, Dish TV India Limited, Reliance Big TV Ltd. and Sun Direct
TV (P) Ltd., Case No. 2 of 2009 (CCI); See also: Dish Tv India Ltd. v. Hathway Cable & Datacom Limited, Case
No. 78 of 2013 (CCI).
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35Manappuram Jewellers (P) Ltd. v. Kerala Gold & Silver Dealers Association, 2012 CompLR 548 (CCI); See: Jyoti
Swaroop Arora v. Tulip Infratech Ltd., 2015 CompLR 109 (CCI).
36Exclusive Motors (P) Ltd. v. Automobili Lamborghini SPA, [2014] 121 CLA 230 (CAT); Shri Pravahan Mohanty v.
HDFC Bank Ltd. and Card Services Division of the HDFC Bank, Case No. 17 of 2010 (CCI).
37
Hoffman-La Roche & Co. v. Commission, [1979] ECR 461; See also: United Brands v. Commission, [1978] ECR
207.
38 Ramakant Kini v. Dr. LH Hiranandani Hospital Pawai, Case No. 39 of 2012 (CCI).
39 M/s HNG Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304 (COMPAT).
40Unilateral conduct workbook, Chapter 3, Assessment of Dominance, prepared by The Unilateral Conduct
Working Group, The Hague, Netherlands, (2011).
41 Saint Gobain Glass India Ltd. v. Gujarat Gas Company Limited, 2015 CompLR 431 (CCI).
43See : The National Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304
(COMPAT).
44 Sunil Bansal v. Jaiprakash Associates Ltd., 2015 CompLR 1009 (CCI).

46 Sunil Bansal v. Jaiprakash Associates Ltd., 2015 CompLR 1009 (CCI).
47 Belaire Owners' Association v. DLF Ltd. Haryana Urban Development Authority Department of Town and
Country Planning, State of Haryana, [2011] 104 CLA 398 (CCI); See also: Commercial Solvents v. Commission,
[1974] ECR 223.
48See: M/s Gujarat State Electricity Corporation Ltd. v. M/s South Eastern Coalfields Ltd., 2013 CompLR 910
(CCI).
49 See: Moot Proposition, ¶7(f).
50
H.M.M. Ltd. v. Director General, MRTPC, (1998) 6 SCC 485.
51 R v. Re A Loyalty Bus Bonus Scheme, (2001) ECC 19.
52Mr. Om Datt Sharma v. M/s Adidas AG, M/s Reebok International Ltd. and M/s Reebok India Company, 2014
CompLR 180 (CCI).
53 See: Ghanshyam Das Vij v. Bajaj Corp Ltd & Others, Case No. 68 of 2013 (CCI).
54 Prasar Bharati (Broadcasting Corporation of India) v. TAM Media Research (P) Ltd. Case 70 of 2012 (CCI).
55See: Case C-525/16, MEO v. Autoridade da Concorrência, EU : C : 2018 : 270; See also: Case C-413/14, Intel
Corporation Inc v. Commission, EU : C : 2017 : 632, ¶22.
56 Abir Roy, supra note 22 at 186.

57Case C-62/86, AKZO Chemie BV v. Commission of European Communities, ECLI : EU : C : 1991 : 286, ¶145;
See also: Case T-83/91, Tetra Pak II v. Commission of European Communities, ECLI : EU : T : 1994 : 246.
58 Case T-340/03, France TÉlÉcom SA v. Commission of the European Communities, ECLI : EU : T : 2007 : 22.
59 F&N, supra note 11 at 48, ¶1.148.
60 Case C-23/14, Post Denmark A/S v. KonkurrencerÅdet, ECLI : EU : C : 2015 : 651.
61 F&N, supra note 11 at 48, ¶1.148.
62 See: Moot Proposition, ¶1.
63 In re, Bharti Airtel Ltd. v. Reliance Industries Ltd. and Anr., Case No. 03 of 2017 (CCI).
64
List of Clarifications, No. 9 at pg. no 3.
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65 F&N, supra note 11 at 48, ¶1.148.

66 Atos Worldline India (P) Ltd. v. Verifone India Sales (P) Ltd., 2015 CompLR 327 (CCI).
67 Case T-201/04, Microsoft Corporation v. Commission. [2007] ECR II-3601.
68 See: List of Clarifications, No. 34 at pg. no 8.

69 Moot proposition, ¶7(d).
70 See: Jefferson Parish Hospital v. Hyde, 466 US 2 (1984).
71 The National Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304 (COMPAT).
72
ALISON JONES & BRENDA SUFRIN, EU COMPETITION LAW, T EXTS, CASES AND MATERIALS, 398 (6th ed, Oxford University
Press 2016).
73
Three D Integrated Solutions Ltd. v. VeriFone India Sales (P) Ltd., 2015 CompLR 464 (CCI).
74 See: Sh. Dhanraj Pillay v. M/s Hockey India, 2013 CompLR 543 (CCI).
75 See: CBEM v. CLT and IPB, [1985] ECR 3261.
76
77 List of Clarifications, No. 8 at pg. no 3.
78 See: Moot Proposition, ¶7(c).
79
Case C-52/09, Konkurrensverket v. TeliaSonera Sverige AB, ECLI : EU : C : 2011 : 83.
80 1 S.M. DUGAR , GUIDE TO COMPETITION LAW 423, (Arijit Pasayat et al. eds., 6th ed. 2016).
81 Suresh Chandra v. State of W.B., AIR 1976 Cal 110; See also: BRYAN A. GARNER, EIGHTH EDITION, BLACK'S LAW
DICTIONARY.
82 Competition Act, supra note 2, § 2(b).
83 Abir Roy, supra note 22 at 46.

84 In Re, British Basic Slag Ltd., (1962) LR 3 RP 179.
85 See: Moot Proposition, ¶7(h).
86 Film & Television Producers Guild of India v. MAI, Case No. 37 of 201 (CCI).
87All India Motor Transport Congress v. Indian Foundation of Transport Research & Training, Appeal No. 20 of
2015 (COMPAT).
88 American Tobacco Co. v. United States, (1946) 328 US 781.
89 In Re : Federation of Indian Airlines, Case No. RTPE 3 of 2008, (CCI).
90 Shailesh Kumar v. Tata Chemicals Ltd., Case No. 66 of 2011, (CCI).
91
DG (IR) v. Modi Alkali and Chemicals Ltd, 2002 CTJ 459.
92
In Re, Alleged cartelization in the matter of supply of spares to Diesel Loco Modernization Works, Indian
Railways, Patiala, Punjab, [2014] CCI 32.
93 Jyoti Swaroop Arora v. CCI & Ors., (2016) 231 DLT 396.
94Maurice E. Stucke, Is Competition always good?, 1, JOURNAL OF ANTITRUST ENFORCEMENT, 162, 162-197 (2013);
See also: Copperweld Corp. v. Independence Tube Corp., 467 US 752 (1984).
95
See: Moot Proposition, ¶7(h).
96 Maurice E. Stucke, Is Competition always good?, 1, JOURNAL OF ANTITRUST ENFORCEMENT, 162, 162-197 (2013).
97 Competition Commission v. Steel Authority of India Ltd. and Anr., (2010) 10 SCC 744.
98
In Re, Suo-Moto Case Against LPG Cylinder Manufactures, 2012 SCC OnLine CCI 12.
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99 Rajasthan Cylinders and Containers Ltd. v. Union of India, 2018 SCC OnLine SC 1718.
100
Raghavan Committee Report, Report of High-Level Committee on Competition Policy Law, ¶4.3-1.
101
Swastik Stevedores (P) Ltd. v. Dumper Owner's Association, 2015 CompLR 212 (CCI).
103
Swastik Stevedores (P) Ltd. v. Dumper Owner's Association, 2015 CompLR 212 (CCI).
104
Moot Proposition, ¶3.
105 See: Moot Proposition, ¶7(g).
107
In Re, Alleged cartelization in supply of LPG Cylinders procured through tenders by Hindustan Petroleum
Corporation Ltd. (HPCL) v. Allampally Brothers Ltd., Case No. 64 of 2014 (CCI), ¶120.
108 Case T-86/95, Compagnie Generale Maritime, [2002] ECR II-1011.
109Case C-360/92 P. Publishers Association, [1995] ECR I-23; See also: ALISON JONES & BRENDA SUFRIN, EU
COMPETITION LAW, T EXTS, CASES AND MATERIALS, 252 (6th ed., Oxford University Press 2016).
110
Ajay Devgun Films v. Yash Raj Films (P) Ltd, 2012 SCC OnLine Comp AT 233.
111 Guidelines on the Application of Article 81(3) of the Treaty, (2004/C101/08), ¶ 33.
113
Moot Proposition ¶7(h).
114
115See: Avinash Amarnath, The Oligopoly Problem : Structural and Behavioural Solutions Under the Indian
Competition Law, 55, JILI 283, 298-300 (2013).
116
Mohan Meakins limited, RTP Enquiry No. 65 of 1984 (MRTPC).
117 Fx Enterprise Solutions v. Hyundai Motor India Ltd., Case No. 36 of 2014 (CCI).
118 Moot Proposition, ¶7(g).
119
Ben Klopack & Nicola Pierri, Vertical contracting and price parity agreements : evidence from hotels in
Europe (2016), available at http:/stanford.edu/bopack/Vertical_Contracting_and_Price_Parity_Agreements.pdf.
120 Competition Act, supra note 2, §4(2)(a).
121 See: Competition Act, supra note 2, §18.
122
124
In re, Meera metal industries, RTP Enquiry No. 19 of 1986 (MRTPC).
125
RRTA v. Amar dye Chem, RTP Enquiry No. 51 of 1975 (MRTPC).
126 DLF v. State of Haryana, (2003) 5 SCC 622.
127 Dr. Miles Medical Co. v. John D. park, 220 US 373 (1911).
128
In re, SCGH v. L&T., [2013] CCI 69.
129
§19(3), The Competition Act, No. 12 of 2003, INDIA CODE (2002).
130 CCI v. Artistes & Technicians, (2017) 5 SCC 17.
131
Ghanshyam Dass Vij and Bajaj Corp. Ltd. [2015] CCI 155.
132 Excel Corp Care v. CCI, (2017) 8 SCC 47.
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133 CCI v. Artistes & Technicians, (2017) 5 SCC 17.

134
Moot Proposition, ¶3.
135
European Commission Guidelines on Vertical Restraints, (2010/C130/01) ¶411.
136 Faridabad Industries v. Adani Gas Limited, Case No. 71 of 2012 (CCI).
137
Competition Act, supra note 2, §19(3)(b).
138 AZB and Partners, Vertical Agreements in India (2019), available at
http:/gettingthedealthrough.com/area/41//vertical-agreements-india/.
139
Moot proposition, ¶7(h).
140
Ariel Ezrachi, The Competitive Effects of Parity Caluses on Online Commerce, 55, OLS 88, 101-103 (2015).
141Competition Commission of India, Market Study on e-commerce in India : Key Findings and Observations
(2020), available at http:/www.cci.gov.in/sites/default/files/whats_/Market-study-on-e-Commerce-in-India.pdf
142 Moot Proposition, ¶1-2.
143
144Frank Mathewson & Ralph Winter, The Law and Economics of Resale Price Maintenance, 13, REV. IND. ORG . 57,
72 (1998).
145 Moot proposition, ¶4.
146 All India Online Vendors Association v. Flipkart India (P) Ltd., Case No. 20 of 2018 (CCI).
147Kenneth G. Elzinga & David E. Mills, The Economics of Resale Price Maintenance, 3, ABA SAL 156, 165-166
(2008).
148 R v. William E. Coutts Co., [1968] 1 O.R. 549.
149Ittai Paldor, The Vertical Restraints Paradox : Justifying the Different Legal Treatment of Price and Non-Price
Vertical Restraints, 58, THE UNIVERSITY OF T ORONTO LAW JOURNAL 317, 317-353 (2008).
150 Mohit Manglani v. Flipkart India, 2015 SCC OnLine CCI 61.
151
RICHARD WHISH , COMPETITION LAW 655 (David Bailey, ed. 2017) [for brevity ‘Richard Whish’]
152William Breit, Resale Price Maintenance : What Do Economists Know and When Did They Know It, 147, J.
INSTITUTIONAL & THEORETICAL EC O N. 72, 72 (1991).
153 Moot Proposition, ¶7(d).
154 Lester G. Telser, Why Should Manufacturers Want Fair Trade II, 33, J.L. & EC O N. 409, 415-416 (1990).
156 §27, The Competition Act, No. 12 of 2003, INDIA CODE (2002).
157
Moot Proposition, ¶7(h).
160 Richard Whish, supra note 151 at 655.
161 Competition Act, supra note 2, §3(3).
162 Samir Agarwal v. ANI Technologies, 2018 SCC OnLine CCI 86.
164Iga Małobęcka, Hub-and-spoke cartel — how to assess horizontal collusion in disguise?, 8, AKADEMIA LEONA
KOŹMIŃSKIEGO 64, 64-78 (2016).
165 See: Fx Enterprise Solutions India (P) Ltd. v. Hyundai Motor India Ltd., Case No. 36 of 2014 (CCI); Crown
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Theatre v. Kerala Film Exhibitors Federation, Case No. 16 of 2014 (CCI).

166 List of Clarifications, No. 25 at pg. no. 6.
167 All India Distillers' Association v. Haidyn Glass Ltd., [2010] CCI 1.

170 Interstate Circuit, Inc. v. United States, 306 US 208 (1939).
171
List of Clarifications, No. 25 at pg. no. 6.
173 Argos Ltd. and Littlewoods Ltd. v. Office of Fair Trading and JBB Sports plc., [2006] EWCA Civ 1318.
174
Case T-99/04, AC-Treuhand v. Commission, [2008] ECR II-1501, ¶ 130.
177
Moot proposition, ¶10.
178
Competition Act, supra note 2, § 3.
179 Neeraj Malhotra v. Deutsche Bank, Case No. 5 of 2009 (CCI).
180
Moot Proposition, ¶11(d).
181
Jyoti Swaroop Arora v. Tulip Infratech, Case No. 59 of 2011 (CCI).
182 Builders Associations v. Cement manufacturers Association, Case no. 29 of 2010 (CCI).
183
Rajasthan Cylinders v. Union of India, 2018 SCC OnLine SC 1718.
184
Indian Sugar Mills Association v. Indian Jute Mills Association, [2014] CCI 90.
186 Moot Proposition, ¶11(a).

187 Moot Proposition, ¶11(a).
188
Top Performance Motors Ltd v. Ira Berk (Queensland) Pty. Ltd., (1975) 24 FLR 286 (Austl.).
189Moot Proposition, ¶11(d); See also: In Re, Alleged Cartelization by Steel Producers, Case No. RTPE No. 09 of
2008 (CCI).
190 Film & Television Producers Guild of India v. MAI, Case No. 37 of 2011 (CCI).
191
Areca v. Commission, (2011) ECR-II-63 (EU).
192
Richard Whish, supra note 151 at 576.
193 Subhas Chanda v. Ganga Prasad, AIR 1967 SC 878.
194 Moot Proposition, ¶11(c).
195
Treaty on the Functioning of the European Union, art. 101.
196
Guidelines on the Applicability of Article 101 of The Treaty on The Functioning of the European Union to
Horizontal Co-operation Agreements, (2011/C11/01), ¶ 86.
198
William E. Kovacic et. al., Plus Factors and Agreement in Antitrust Law, 110, MICH . L. REV. 393, 398-400
(2011).
199 United States v. Socony-Vacuum, 310 US 150 (1940).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
200 See: In Re, Sheth & Co., Case No. 04 of 2013 (CCI).
201
See: Moot Proposition, ¶11(b).
202 See: Moot Proposition, ¶2.
203Samir Agarwal and ANI Technologies (P) Ltd., 2018 SCC OnLine CCI 86; See also: United States v. Socony-
Vacuum, 310 US 150 (1940).
204
In Re, Manufacturers of Asbestos Cement Products Suo-Moto Case No. 01 of 2012 (CCI).
207
Builders Association of India v. Cement Manufacturers' Association, Case No. 29 of 2010 (CCI).
208 Competition Act, supra note 2, §19(3).
209 All India Organisation of Chemists and Druggists v. CCI, Appeal No. 21 of 2013 (COMPAT).
210
Competition Act, supra note 2, §3(3)(a).
211 Richard Whish, supra note 151 at 562.
212See: In Re, Cartelisation in respect of zinc carbon dry cell batteries market in India v. Eveready Industries
India Ltd., Suo Motu Case No. 02 of 2016 (CCI).
FICCI-Multiplex Association of India v. United Producers/Distributors forum, Case No. 1 of 2009 (CCI), ¶23.9 &
213
¶23.52.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

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Page 1 Monday, February 07, 2022

11th NLUJ Antitrust Moot, 2020

Before the Hon'ble Vormirian Company Law Appellate Tribunal

1. The FSAs have not violated the provisions of §4(2)(a) and 4 10

2. The mere fact of exchange of sensitive & confidential 31

INDIAN CASES PAGE NO

All India Distillers' Association v. Haidyn Glass Ltd., [2010] CCI. 29

In Re, Suo-Moto Case Against LPG Cylinder Manufactures, 2012 SCC 19

EUROPEAN UNION CASES AND REGULATIONS PAGE NO.

Case T-86/95, Compagnie Generale Maritime, [2002] ECR II 1011. 21

UNITED STATES CASES PAGE NO.

OTHER FOREIGN CASES PAGE NO.

GUIDELINES, REPORTS AND REGULATIONS PAGE NO.

BOOKS PAGE NO.

JOURNAL AND ARTICLES PAGE NO.

DICTIONARY PAGE NO.

Commission is received by the Central Government or the State Government or a

‘preponderance of possibilities’ cannot be presumed to be the gravest one, when there

Restrictive contract which are designed to promote use of energy efficient

agree on anti-competitive practices182 and VAR as an association, is also prone to

5 Competition Act, supra note 2, §2(r).

44 Sunil Bansal v. Jaiprakash Associates Ltd., 2015 CompLR 1009 (CCI).

56 Abir Roy, supra note 22 at 186.

65 F&N, supra note 11 at 48, ¶1.148.

68 See: List of Clarifications, No. 34 at pg. no 8.

83 Abir Roy, supra note 22 at 46.

133 CCI v. Artistes & Technicians, (2017) 5 SCC 17.

Theatre v. Kerala Film Exhibitors Federation, Case No. 16 of 2014 (CCI).

168 List of Clarifications, No. 25 at pg. no. 6.

186 Moot Proposition, ¶11(a).

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