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9th NLUJ Antitrust Moot, 2018

Winner Team Memorial - Respondent
IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL OF BOHEMIA, AT

__________
Competition Appeal No._____/2018
(Under Section 53B of the Bohemian Competition Act, 2002)
Lutyen TV . . Appellant;
Versus
Competition Commission of Bohemia . . Respondent.
Clubbed With
Competition Appeal No. ___/2018
Versus
Sandy Home Store . . Respondent No. 1.
RK . . Respondent No. 2.
Competition Commission of Bohemia . . Respondent No. 3.
Clubbed With
Competition Appeal No. ___/2018
Versus
Sandy Home Store . . Respondent No. 1.
Competition Commission of Bohemia . . Respondent No. 2.
Memorandum Filed on Behalf of
Competition Commission of Bohemia, Sandy Home Store and RK.
Counsel Appearing on Behalf of
Competition Commission of Bohemia, Sandy Home Store and RK.
TABLE OF CONTENTS
_Toc508489578
List of Abbreviations iv
Index of Authorities vi
Statement of Jurisdiction xii
Statement of Facts xiii
Issues for Consideration xvi
Summary of Arguments xvii
I. Lutyen TV's Acquisition of Tojo's Casting Division and the Earlier xvii
Market Purchases were Notifiable under the Competition Act
II. Lutyen TV has not violated CCB's conditional approval of its xvii
acquisition of Tojo's casting division under §31 of the Act.
III. Lutyen TV was not using its dominance in the market for UHD xviii
televisions to increase sales of the Tojo Stick in the casting
devices market.
IV. The Resale Price Clause in the Distributorship Agreement was Not xviii
Anti-Competitive
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V. Sandy Home Store Has Not Engaged in Refusal to Deal xix

Written Submissions 1
I. Lutyen TV's Acquisition Gives Rise to an Obligation to Notify Under 1
The Act
[A] The acquisition does not qualify for the de minimis exemption 1
i) The notification released on March 27, 2017 substantially 3
changes the position of law and is not clarificatory in nature
ii) Notice had to be filed within 30 days of the execution of the 5
Asset Purchase Agreement
[B] The earlier market purchases are connected to the Asset 6
Purchase Agreement and hence ought to have been notified
under Regulation 9(4)
[C] The earlier market purchases are not exempt under Item I of 7
Schedule I of the Combination Regulations
II. Lutyen TV has violated the conditional approval of its acquisition 11
of Tojo's casting division under §31 of the Act
[A] Lutyen TV's televisions are effectively not compatible with all 11
casting devices
[B] There was no exclusive arrangement between Lutyen TV's 12
televisions and the Tojo Sticks
III. Lutyen TV was using its dominance in the market for UHD 15
televisions to increase sales of the Tojo Stick in the casting
devices market
[A] Lutyen TV had sufficient market power in the market of the 16
tying product in order to restrain free competition
[B] The tie-in arrangement affected a ‘not insubstantial’ amount of 16
commerce
[C] The tie-in arrangement was per se anti-competitive and illegal 17
[D] The tie-in arrangement is anti-competitive as per the factors 18
mentioned in §19(3) of the Act
IV. The Resale Price Clause in the Distributorship Agreement is Anti- 21
Competitive
[A] The Agreement was a Resale Price Agreement as per §3(4)(e) 21
of the Act
[B] The Resale Price Agreement is Unreasonable and Anti- 22
Competitive
[C] The Doctrine Laid Down by the U.S. Supreme Court in the 24
Colgate Case Does Not Apply to the Resale Price Agreement
[D] The Resale Price Agreement is Anti-Competitive as per the 25
Factors Laid Down in §19(3)
V. Sandy Home Store has not Engaged in Refusal to Deal 28
[A] Sandy Home Store is free to choose the parties whom it trades 28
with
[B] Refusal by Sandy Home Store did not lead to elimination of all 30
competition
i) Sandy is not a dominant undertaking 30
ii) Sandy's distribution network is not indispensable 31
iii) Refusal by Sandy does not lead to elimination of all 33
competition
[C] The Touchstone of §19(3) has not been satisfied even if there 33
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is refusal to deal
[D] In any case, Refusal by Sandy Home Store should be allowed 35
because it can be objectively justified
Prayer 37
LIST OF ABBREVIATIONS
Sr. No. Abbreviation Expansion
1. ¶ Paragraph
2. AAEC Appreciable Adverse Effect on Competition
3. Anr. Another
4. BNR Bohemian Rupee
5. CCB Competition Commission of Bohemia
6. CCI Competition Commission of India
7. CEO Chief Executive Officer
8. Co. Company
9. Corp. Corporation
10. DG Director General
11. EC European Commission
12. ed. Editor
13. FHD Full-High Definition
14. GmbH Gesellschaft mit beschränkter Haftung
15. Inc. Incorporated
16. INR Indian Rupee
17. Ltd. Limited
18. Lutyen TV Lutyen TV Private Limited
19. M/s Messrs
20. MCA Ministry of Corporate Affairs
21. MRP Maximum Retail Price
22. NCLAT National Company Law Appellate Tribunal
23. No. Number
24. Ors. Others
25. Pvt. Private
26. Reg. Registration
27. S. Section
28. S.O. Statutory Orders
29. Sandy Sandy Home Store
30. The Act The Competition Act, 2002
31. TV Television
32. UHD Ultra-High Definition
INDEX OF AUTHORITIES
Statutes
Hart-Scott-Rodino Antitrust Improvements Act, 1976 8
The Competition Act, 2002. passim
Other Authorities
Adam Candeub, Trinko and Re-grounding the Refusal to Deal Doctrine, 29
66(4) PITTSBURGH LAW REVIEW 821, 827 (2005)
Combination Regulations, 2011 6, 7
EU Commission Regulation No. 330 of 2010 16
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European Commission, Commission Notice : Guidelines on the 9

Assessment of Horizontal Mergers under the Council Regulation on the
Control of Concentrations Between Undertakings, OJ C 31 (2004)
European Commission, Commission Notice : Guidelines on the 10
Assessment of Non-Horizontal Mergers under the Council Regulation on
the Control of Concentrations Between Undertakings, non-horizontal
merger guidelines OJ C 265 (2008)
European Commission, Guidance On The Commission's Enforcement 35
Priorities In Applying Article 82 Of The EC Treaty To Abusive
Exclusionary Conduct By Dominant Undertakings, OJ C-45 (2009)
Herbert Hovenkamp, Exclusive Joint Ventures and Antitrust Policy, 1 26
COLUMBIA BUSINESS LAW REVIEW 1, 97-98 (1995)
J.P. Bauer, A Simplified Approach to Tying Arrangements : A Legal and 20
Economic Analysis, 33(2) VANDERBILT LAW REVIEW, 283, 296 (1980)
John C. Hilke, Free Trading Or Free Riding : An Examination Of The 26
Theories And Available Empirical Evidence On Gray Market Imports, 5
(Working Paper No. 150, Bureau of Economics, Federal Trade
Commission, 1987)
M. Whinston, Tying, Foreclosure, and Exclusion, 80(4) AMERICAN 18
ECONOMIC REVIEW, 837, 838 (1990)
Robert L. Steiner, Does Advertising Lower Consumer Prices?, 37 26
MARKETING JOURNAL 1, 19 (1973)
Notifications
Notification S.O. 675(E), (March 4, 2016) 2, 3
Notification S.O. 988(E), (March 27, 2017) 3
Indian Cases
Cairnhill, Combination Registration No. C-2015/05/276, ¶ 6 6
(Competition Commission of India)
Competition Commission of India v. Steel Authority of India Ltd., 18
(2010) 10 SCC 744, ¶ 87 (Supreme Court of India).
EMC/McNally Bharat Engineering, Combination Registration No. C- 6, 7
2015/07/293, (Competition Commission of India)
Exclusive Motors Pvt. Limited v. Automobili Lamborghini S.P.A., Case 13
No. 52 of 2012, ¶ 6 (Competition Commission of India)
Future Consumer Enterprise Limited, Combination Registration No. C- 5
2016/03/384, ¶ 14 (Competition Commission of India)
Fx Enterprise Solutions Pvt Ltd. v. Hyundai Motor India Limited, Case passim
No. 36 of 2014, ¶ 89 (Competition Commission of India)
In Re : IELTS Australia Pty Ltd., Case No. 66 of 2010, ¶ 7 (Competition 12
Commission of India)
In Re : IELTS Australia Pty Ltd., No. 66 of 2010, ¶ 8 (Competition 13
ITC Limited, Combination Registration No. C-2017/02/485, 3, 4
K Sera Sera Digital Cinema Ltd. v. Pen India Ltd., Case No. 97 of 2016, 32
¶ 10 (Competition Commission of India).
ESYS Information Technologies Pvt. Ltd. v. Intel Corporation, Case No. 13
48 of 2011, ¶ 5.19 (Competition Commission of India)
Jasper Infotech Private Limited v. Kaff Applicances (India) Pvt. Ltd., 21
Case No. 61 of 2014, ¶ 6 (Competition Commission of India)
Royal Agency v. Chemists and Druggists Association, Goa, Case No. 63 33
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of 2013, ¶ 43 (Competition Commission of India).

FCM Travel Solutions (India) Limited v. Travel Agents Federation of 13
India, RTPE No. 09 of 2008, ¶ 19 (Competition Commission of India)
Neeraj Malhotra v. Deustche Post Bank Home Finance Ltd., Case No. 5 19
of 2009, ¶ 98 (Competition Commission of India)
New Moon/Mylan, Combination Registration No. C-2014/08/202, ¶ 9 8
Piramal Enterprises/Shriram, Combination Registration No. C- 8
2015/02/249, ¶ 7 (Competition Commission of India).
Prime Mag. Subscription Service Ltd. v. Wiley India Pvt. Ltd., Case No. 29
07 of 2016 (Competition Commission of India)
Saab/Pipavav Defence, Combination Registration No. C-2012/11/95, ¶ 5 8
Schulke GmbH, Combination Registration No. C-2015/12/349, ¶ 8.12 5
SCM Soilfert Limited v. Competition Commission of India (2016) Comp. 6, 8, 9
L.R. 1111, (Competition Appellate Tribunal)
Shamsher Kataria v. Honda Siel Cars India Ltd., Case No. 03 of 2011 33
Sonam Sharma v. Apple Inc., No. 24 of 2011, ¶ 69 (Competition 16
Tata Engineering and Locomotive Co Ltd (Telco) v. The Registrar of 15
Restrictive Trade Agreement, (1977) 2 SCC 55 : AIR 1977 SC 973, ¶
693 (SC)
Union of India v. IndusInd Bank Limited, (2016) 9 SCC 720, ¶ 25 4
(Supreme Court of India)
Zuari/UB, Combination Registration No. C-2014/06/181, ¶ 8 8
Books
BLACK'S LAW DICTIONARY, 1098 (Bryan A. Garner ed., 9th edn., 2011). 29
T. Gundlach et al, Free Riding and Resale Price Maintenance : Insights 26
from Marketing Research and Practice, 55(2) THE ANTI-TRUST BULLETIN
381, 388-389 (2010)
European Cases
BBI/Boosey and Hawkes OJ [1987] L 286/36 (The Commission of the 35
European Communities)
Commercial Solvents v. Commission of the European Communities, 30, 33
Cases 6 and 7/73, 1974 ECR 223, ¶ 25 (The European Court of Justice)
IMS Health GmBH & Co. v. NDC Health GmBH & Co., Case C-418/01, 31
2004 ECR I-5039 (The European Court of Justice)
Microsoft Corp. v. Commission of the European Communities, Case T— 31
201/04, ECR II-3601 (2007) (The European Court of Justice)
Oscar Bronner GmBH & Co. KG v. Mediaprint Zeitings-und 29, 30, 31
Zeitschriftenverlag GmBH & Co. KG., Case C-7/97, 1998 ECR I-7791
(The European Court of Justice)
P British Airways v. Commission of the European Communities, Case C- 35
95/04, 2007 ECR I-2331 (The European Court of Justice)
P Tetra Pak International SA v. Commission, Case C-333/94, 1996 ECR 35
I-5951 (The European Court of Justice)
Viho Europe BV v. Commission of the European Communities, C-73/95 13
1996 ECR I-5457, ¶ 16 (European Court of Justice)
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American Cases
Aspen Skiing Co v. Aspen Highlands Skiing Corp, 472 US 585 (1985) 29
(United States Supreme Court)
Boston Store of Chicago v. Am. Graphophone Co., 246 US 8 (1918), at 24
25 (United States Supreme Court)
Dr. Miles Medical Co. v. Park & Sons Co., 220 US 373 (1911), at 396 24
International Salt Co. v. United States, 332 US 392 (1947), at 396 17
Leegin Creative Leather Prod., Inc. v. PSKS, Inc., 551 US 877 (2007), at 22
900 (United States Supreme Court)
Northern Pacific Railway Company v. United States, 356 US 1 (1958) 17, 18
State Oil Co. v. Khan, 522 US 3 (1997) (United States Supreme Court). 34
Tic-X-Press v. Omni Promotions Co., 815 F.2d 1407 (1987), at 1419 17
(11th Circuit, US)
U.S. v. Colgate & Co, 250 US 300 (1919) (United States Supreme 24, 28
Court)
United States v. Loew's Inc., 371 US 38 (1962), at 49 (United States 17
Supreme Court)
United States v. Microsoft Corp., 253 F.3d 34 (2001), at 56 (D.C. Circuit 18
Court, U.S.)
Verizon Communications Inc. v. Law Offices of Curtis Trinko, 540 US 29
398 (2004) (United States Supreme Court)
STATEMENT OF JURISDICTION
I. COMPETITION APPEAL (AT) NO. __ OF 2018
The Appellant, Lutyen TV has approached this Honourable Tribunal under Section
53B of the Bohemian Competition Act, 2002. The Respondent, CCB humbly submits to
the jurisdiction of the tribunal.
II. COMPETITION APPEAL (AT) NO. __ OF 2018
53B of the Bohemian Competition Act, 2002. The Respondents, CCB, Sandy Home
Store and RK humbly submit to the jurisdiction of the tribunal.
III. COMPETITION APPEAL (AT) NO. __ OF 2018
53B of the Bohemian Competition Act, 2002. The Respondents, CCB and Sandy Home
Store humbly submits to the jurisdiction of the tribunal.
STATEMENT OF FACTS
ASSET PURCHASE AGREEMENT
Bohemia is a republic in South Asia, whose laws are pari materia with the laws of
India. Lutyen TV Pvt. Ltd. (Lutyen TV) is the largest television manufacturer in
Bohemia and has significant market position in the sale of Ultra High Definition (UHD)
televisions across Bohemia. Tojo Stick, a product of Tojo company, is a casting device
which is compatible with casting in UHD format. Tojo's casting technology division has
assets worth BNR. 438 crores, and turnover of approx. 750 crores in Bohemia.
Lutyen TV, in order to become a fully integrated UHD service provider, approached
Tojo in December 2015 to purchase its casting technology division. When Tojo rejected
this offer, Lutyen TV started acquiring shareholding in Tojo via market purchases in
small tranches of 3-5% over 2016-17. It was evident from the board documents of
Lutyen TV that it wanted to purchase at least 25% of Tojo's shareholding so as to
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make an open offer to acquire controlling rights over Tojo. Tojo's senior management,
in order to prevent such a takeover by Lutyen TV entered into an Asset Purchase
Agreemnt on February 24, 2017 for sale of Tojo's casting technology division in
exchange for cash consideration payable to the shareholders of Tojo, and the return of
the 12% shareholding acquired by Lutyen TV.
THE NOTIFICATION AND CCB ORDER UNDER §43A
On March 27 2017, the Ministry of Corporate Affairs issued a notification which
stated that only the value of assets of that particular division which was being taken
over or merged shall be taken into account for the purposes of §5 of the Bohemian
Competition Act, 2002.
On June 10, 2017, Lutyen TV publicly announced the acquisition of Tojo's casting
technology division. The CCB initiated a suo moto enquiry into the acquisition and held
Lutyen TV guilty of non-notification within 30 days of execution of the Asset Purchase
Agreement. It also observed that the earlier market purchases violated the gun-
jumping provisions of the Act. Lutyen TV appealed against this order before the
NCLAT.
THE DISTRIBUTORSHIP AGREEMENTS
Lutyen TV, in order to capitalize on the festival holidays, commenced a fresh
marketing campaign under which it sold the UHD TVs and Tojo Sticks as a package to
independent distributors at the price of the television only. A clause was also added to
the distributorship agreements which mandated distributors to sell the two products
as a package only. In addition to this, Lutyen TV also added another clause in the
agreements which mandated the distributors cannot sell the package at a discount
exceeding 10% of the Maximum Retail Price.
COMPLAINTS BY SANDY HOME STORE AND RK
Sandy Home Store is Bohemia's largest distributor of home electronics, including
televisions. It is renowned for stocking all television brands as well as all available
casting devices. It also manufactures many products including UHD TVs. As a
consequence of its large portfolio and economies of scale, Sandy Home Store offers
significant discounts to its end customers, which is one of its business models and the
reason for its success. These discounts are often above 10% and seasonal discounts go
up to 20%. Sandy Home Store filed a complaint against Lutyen TV under the Act due
to the discount restriction imposed on it. (Case No. 1 of 2018).
RK is a company specializing in the manufacture and sale of casting devices for
UHD TVs and held a significant market share of 40%. Towards the end of 2017, RK
witnessed drop in its market shares, which, in its view, was because of the bundling of
Lutyen TV televisions along with Tojo Sticks at the price of the television. RK filed a
complaint against Lutyen TV for violating its commitments under §31 and for entering
into abusing its dominance by entering into a tie-in arrangement (Case No. 2 of
2018).
CCB'S COMMON ORDER IN CASE NO. 1 OF 2018 AND CASE NO. 2 OF 2018
CCB passed a combined order under §26(1) in both the cases finding Lutyen TV
guilty of indulging in Resale Price Maintenance and tying in, as well as failing to
comply with the commitments based on which the acquisition of Tojo Stick was
approved and levied a penalty of BNR 53 crores. Lutyen TV appealed against this order
before NCLAT.
COMPLAINT BY LUTYEN TV
Lutyen TV also filed a complaint against Sandy Home Store for refusing to deal in
its products under §3(4) of the Act (Case No. 3 of 2018). CCB did not find any
instance of refusal to deal on part of Sandy Home Store and dismissed the complaint.
Lutyen TV appealed against this order as well before NCLAT.
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All the above appeals are now being heard together before NCLAT.
ISSUES FOR CONSIDERATION
1. Whether Lutyen TV had to notify its acquisition of Tojo's casting division?
2. Whether Lutyen TV violated the gun jumping provisions of the Competition
Act, 2002?
APPEAL II
1. Whether Lutyen TV violated it commitments as required under the CCB's order
under Section 31 of the Competition Act?
2. Whether Lutyen TV, by entering into a tie-in arrangement, was using its
dominance in the market for UHD televisions to increase sales of the Tojo Stick in
the casting devices market?
3. Whether Lutyen TV has indulged in resale price maintenance?
APPEAL III
1. Whether Sandy Home Store engaged in refusal to deal by refusing to stock the
products of Lutyen TV in its showrooms?
SUMMARY OF ARGUMENTS
I. LUTYEN TV'S ACQUISITION OF TOJO'S CASTING DIVISION AND THE EARLIER MARKET
PURCHASES WERE NOTIFIABLE UNDER THE COMPETITION ACT
Lutyen TV's acquisition of Tojo's casting division does not meet the requirements of
the de minimis exemption as per the notification dated March 4, 2016 and the
notification dated March 27, 2017 is not applicable to the present case as it
substantially changes the rights under the exemption and therefore cannot have a
clarificatory nature. Notice had to be filed within 30 days of the execution of the Asset
Purchase Agreement. The earlier market purchases were made with the intention of
making an open offer for the controlling rights of Tojo and to acquire Tojo's casting
division, and therefore are connected to the Asset Purchase Agreement and require
notification. Lutyen TV cannot claim the exemption under Item I Schedule I as its
acquisition of Tojo's shares was a strategic investment in a vertically linked market
and therefore the acquisition cannot be regarded to be intended solely as an
investment.
II. LUTYEN TV HAS NOT VIOLATED CCB'S CONDITIONAL APPROVAL OF ITS ACQUISITION
OF T OJO'S CASTING DIVISION UNDER §31 OF THE ACT .
§31 of the Act states that where the Commission is of the opinion that any
combination has, or is likely to have, an appreciable adverse effect on competition, it
may either prohibit such combination, or it may approve the combination subject to
certain conditions. In the present dispute, CCB approved Lutyen TV's acquisition of
Tojo Sticks on the condition that there would be no exclusive arrangement between
Lutyen TV's televisions and the Tojo Sticks, and that Lutyen TV must continue to have
its televisions compatible with all casting devices. It is submitted that Lutyen TV did
not violate this condition because Lutyen TV's televisions continue to be compatible
with all casting devices. Since the package arrangement was merely at the
distributors' level, it does not impact the compatibility of Lutyen TV televisions with
other casting devices in the market. Hence, Lutyen TV has not violated violated CCB's
conditional approval of its acquisition division under §31 of the Act.
III. LUTYEN TV WAS NOT USING ITS DOMINANCE IN THE MARKET FOR UHD TELEVISIONS
TO INCREASE SALES OF THE T OJO STICK IN THE CASTING DEVICES MARKET.
While the agreement entered into between Lutyen TV with its distributors was a tie-
in arrangement as per §3(4)(a), it was not an anti-competitive tie-in arrangement
because Tojo Sticks, with a market share of 20%, did not have a sufficient market
power to affect competition. Further, the tie-in arrangement merely had an impact on
the sales of RK, and did not have non insubstantial amount of competition.
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Additionally, it is submitted that the tie-in arrangement is not per se unreasonable or

anti-competitive as per the test laid down in the American case of Northern Pacific
Railway Company v. United States. Lastly, it is submitted that the tie-in arrangement
is not anti-competitive as per the thresholds prescribed in §19(3).
IV. THE RESALE PRICE CLAUSE IN THE DISTRIBUTORSHIP AGREEMENT WAS NOT ANTI-
COMPETITIVE
It is not disputed that the distributorship agreement entered into between Lutyen
TV and the independent distributors was a resale price agreement. However, it is
submitted that the resale price agreement was not anti-competitive in the present
dispute. Firstly, the resale price agreement is not unreasonable as per the Leegin case
since the decision to impose a resale price was taken by Lutyen TV on its own accord,
without any coercion from the distributors. Further, the doctrine laid down by the
United States Supreme Court in the Colgate case, wherein it was held that a
manufacturer may unilaterally terminate business with any other company without
triggering a violation of the antitrust laws, applies in the present dispute. Finally, it is
submitted that the resale price agreement does not have appreciable adverse effects
on competition as per §19(3).
V. SANDY HOME STORE HAS NOT ENGAGED IN REFUSAL TO DEAL
Sandy Home Store has not engaged in refusal to deal because it has been well
established that a business entity is free to exercise its discretion as to the parties
with whom it will deal. In addition to this, the refusal by Sandy Home Store to stock
Lutyen TV's televisions and Tojo Sticks did not lead to the elimination of all
competition in the market as there are actual substitutes in the market in the form of
various other distributors. The refusal is also not hindering the emergence of a new
product in the market, is not unjustified and does not exclude any competition on the
secondary market. Moreover, the touchstone of Section 19(3) has not been satisfied
and it is clear that the refusal does not have an appreciable adverse effect on the
competition in the market. In any case, the refusal by Sandy Home Store should be
allowed because it can be objectively justified.
WRITTEN SUBMISSIONS
I. LUTYEN TV'S ACQUISITION GIVES RISE TO AN OBLIGATION TO NOTIFY UNDER THE
ACT
The CCB, through its order dated 3 August 2017, has found Lutyen TV guilty of
failure to notify its acquisition of Tojo's casting division within 30 calendar days of
executing the Asset Purchase Agreement and for violation of the gun-jumping
provisions of the Act in relation to the earlier market purchases of shares made by
Lutyen TV.1 Under §6(2) of the Act, any enterprise which proposes to enter into a
combination has to give notice to the Commission.2 Under §43A of the Act, if any
enterprise fails to give notice to the Commission under §6(2), the Commission can
impose a penalty on the enterprise.3
It is submitted that the findings of the CCB are correct as Lutyen TV has indeed
violated the gun-jumping provisions of the Act under §43A and has failed to notify its
Acquisition of Tojo's casting division under §6(2). It is argued that the acquisition
does not qualify for the de minimis exemption[A], the Asset Purchase Agreement and
the earlier market transactions are connected [B] and the earlier market purchases are
not exempt under Item I Schedule I of the Combination Regulations [C].
[A] The acquisition does not qualify for the de minimis exemption
Lutyen TV's acquisition of Tojo's casting division requires notification under the Act
because it does not meet the requirements of de minimis exemption dated March 4,
2016, and the notification dated March 27, 2017 is not applicable to the current case.
The Asset Purchase Agreement was signed on February 24, 20174 and that should be
considered to be the trigger date of the acquisition. The notification was supposed to
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have been made within 30 days of this date as per the requirements of §6(2) of the
Act.
§5 of the Act prescribes the thresholds that have to be considered when an
enterprise is acquiring, merging or amalgamating with another enterprise.5 §5(2)
states that in cases where an enterprise is being acquired by another enterprise, the
acquisition will be considered to be a combination if the combined value of the assets
of the acquired enterprise and the acquiring enterprise is more than INR (BNR) 1000
crores.6 This threshold has been raised vide notification no. S.O. 675(E) dated March
4, 2016 and now the combined value of the assets must be more than INR (BNR)
2000 crores for the acquisition to be a combination as per the terms of the Act.7 In the
current scenario, Tojo's assets are worth BNR 1231 crores8 and Lutyen TV has assets
worth BNR 2000 crores.9 Therefore, their combined assets are worth BNR 3131 crores
and they meet the jurisdictional thresholds under §5 of the Act.
One of the exceptions to the thresholds under §5 is the de minimis rule, which
states that an enterprise whose control, shares, voting rights or assets were being
acquired was exempt from notification under §5 if the value of its assets was less than
INR (BNR) 250 crores or its turnover was less than INR (BNR) 750 crores.10 This was
later amended vide S.O. 674(E) dated March 4, 2016 and the thresholds were
enhanced to INR (BNR) 350 crores for monetary value of assets and INR (BNR) 1000
crores for turnover.11
The de minimis exemption has been further amended by the notification S.O. 988
(E), issued by the Ministry of Corporate Affairs on March 27, 2017.12 While the
thresholds remain the same, the notification now provides that where a portion of an
enterprise or division or business is being acquired, taken control of or merged or
amalgamated with another enterprise, only the value of the assets of that division or
its turnover will be used for calculating the thresholds under §5 of the Act.13
This notification, however, is not applicable to the present dispute as the Asset
Purchase Agreement between Lutyen TV and Tojo was signed on February 24, 2017. At
this date, the law relating to the de minimis exemption was governed by the
notification released on March 4, 2016. The notification released on March 27, 2017
cannot have retrospective effect as it substantially changes the position of the law and
is not clarificatory in nature (i) and notice ought to have been filed within 30 days of
the execution of Asset Purchase Agreement (ii).
i) The notification released on March 27, 2017 substantially changes the position of
law and is not clarificatory in nature
The issue of the retrospective applicability of the notification released on March 27,
2017 has been dealt with by the CCI in its recent order against ITC Limited under §43
A of the Act.14 In this case, CCI issued a show cause to ITC on March 29, 2017 for not
notifying their acquisition of certain trademarks. ITC claimed exemption on the basis
of the applicability of the notification S.O. 988(E), stating that as the show cause
notice was issued after the notification was announced, the notification would be
applicable to the case.
The CCI stated that the notification wasn't applicable as it substantially changed
the position of law, and therefore cannot have a retrospective effect.15 The notification
dated 27 March, 2017 seeks to substantively change not only the manner in which the
value of assets and turnover is determined for the purpose of §5 of the Act but also
the principle for determining the applicability of the de minimis exemption itself.
Earlier, the exemption was only applicable when a small enterprise was being acquired
by a large enterprise. Now the exemption can also be availed of when a large
enterprise is acquiring a small division of another enterprise. Such a change in law is
substantial and therefore cannot have retrospective effect.
Furthermore, notification S.O. 989(E), which has been released along with
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Notification S.O. 988(E), also states clearly that the notification is only in force from
the date it is announced and that the earlier notification will apply for all acts done
before the announcement.16 The fact that the notification has a lifespan of only 5 years
strengthens the view that it is not clarificatory in nature and cannot have retrospective
effect as it would lead to opening of all the old closed transactions for fresh scrutiny as
per the new notification.17
ii) Notice had to be filed within 30 days of the execution of the Asset Purchase
Agreement
In the present scenario, the trigger documents were executed on February 24, 2017
when the Asset Purchase Agreement was executed between the parties. Under §6(2),
the Acquirer is under an obligation to file notice pertaining to the acquisition within a
period of 30 days of executing a trigger document. The trigger event is defined as the
final approval of the merger or amalgamation by the board of directors of the
enterprises concerned or the execution of any agreement or other document for
acquisition of shares, voting rights, assets or control.18 The Asset Purchase Agreement
was signed on February 24, 2017 between the senior management of Tojo and the
CEO of Lutyen TV.19 The execution of the Asset Purchase Agreement is the execution of
any agreement for the acquisition of assets and therefore is the trigger event as
required under §6(2) of the Act. Accordingly, notice ought to have been filed within 30
days from 24th February, 2017.20
Lutyen TV's acquisition of Tojo's casting division does not qualify for the de minimis
exemption and meets the thresholds under §5 of the Act. All mergers which meet the
thresholds have to be notified, regardless of whether or not they create an adverse
appreciable effect on the competition in the country. In Future Consumer Enterprise
Limited,21 the CCI has held that the fact of approval of the combination on assessment
that it does not raise any AAEC in India, based on analysis of various factors does not
confer any immunity to the appellants from being penalized under §43A of the Act for
failure to comply with the regulatory obligation of the parties under the Act. The Act
clearly provides for a mandatory regime for notifying a combination, irrespective of
whether there is any AAEC or not.22 Therefore, as the jurisdictional thresholds under
§5 were satisfied, the parties to the combination ought to have notified the
acquisition.
[B] The earlier market purchases are connected to the Asset Purchase
Agreement and hence ought to have been notified under Regulation 9(4)
The earlier market purchases of 4%, 5% and 3% in Tojo by Lutyen TV were made
with the intention of acquiring a 25% shareholding in Tojo and then make an open
offer for purchase of its controlling rights and sell off Tojo's non-profitable
businesses.23 Under Regulation 9(4) of the Combination Regulations, where the
intended effect of a business transaction is achieved by way of individual transactions,
then a notice covering all these transactions has to be filed by the parties to the
combination.24 The CCI has penalized various parties for not notifying earlier
transactions on the ground that they were connected and therefore notice ought to
have been filed for them.25 In EMC/McNally Bharat Engineering Company,26 EMC had
acquired a 19.77% shareholding in MBECL and had notified it to the Commission. The
Commission noted that MKN, a promoter group of EMC had acquired 12.32%
shareholding in MBECL three months earlier and had not notified it.27 Holding that
both the transactions were made with a common intention, the Commission penalized
EMC for not filing the notice at the time of the first purchase.
Similarly, in the present case, the earlier market purchases and the Asset Purchase
Agreement were made with the common intention of acquiring Tojo's casting division.
The acquisition would not have been possible without the share purchases as Tojo had
already refused Lutyen TV's earlier offer.28 As the ultimate objective, i.e., the purchase
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of Tojo's casting division would not have been possible without the purchase of the
shares, the transactions are interconnected within the meaning of Regulation 9(4) and
notice should have been filed at the time of these transactions.
[C] The earlier market purchases are not exempt under Item I of Schedule I of
the Combination Regulations
Under Item I Schedule I of the Combination Regulations, an acquisition of shares or
voting rights, solely as an investment or in the ordinary course of business insofar as
the acquisition does not exceed 25% of the total shares of the company is exempt
from notification.29 Lutyen TV acquired shareholding of 4%, 5% and 3% in Tojo
through separate transactions and at the time the Asset Purchase Agreement was
signed it held a total of 12% shareholding of Tojo.30
For an acquisition to be solely for the purposes of investment, the investment must
be a passive one as against a strategic one.31 An investment would be considered
strategic if made with an intention of participating in the formulation, determination or
direction of the basic business decision of the target enterprise32 , if there is a
partnership between the companies,33 if public statements made by the companies
represent the same,34 and if the acquirer and the acquired entity are situated in
horizontally/vertically linked markets.35
The CCI, in New Moon/Mylan has observed that where an acquirer and the target
are engaged in the same, substitutable or competing businesses or where their
businesses are vertically related, an acquisition of shares/voting rights of less than
25% “need not necessarily be termed as an acquisition made solely as an investment
or in the ordinary course of business.”36 As per international best practices and
approach followed by other jurisdictions,37 solely as an investment exception does not
apply where
a) The target holds more than 10% of a competitor of the acquirer; or
b) The acquirer holds more than 10% of a competitor of the target.
It has also been observed by the Commission that the categories of combinations
listed in Schedule 1 to the Combination Regulation must be interpreted in light of the
Commission's objectives (listed in §18 of the Act) and the intent of Schedule I
(expressed in Regulation 4 of the Combination Regulations). This means that the
categories of combinations listed in Schedule I as normally not notifiable ought not to
include combinations which envisage or are likely to cause a change in control or are of
the nature of strategic combinations including those between competing enterprises or
enterprises active in vertical markets.38
In the present scenario, a vertical relationship exists between Tojo's casting division
and Lutyen TV which can potentially lead to input foreclosure in the downstream
market of casting devices. For a vertical linkage to exist, the companies must operate
at different levels of the supply chain.39 Tojo's casting division and Lutyen TV can be
categorized as downstream and upstream markets respectively, as the upstream
market of Televisions is essentially an input for casting devices, considering that
casting devices require a TV (any device with an HDMI port) to function.40
Lutyen TV has a 40% share in the TV market, a higher share in the FHD TV market
and a 45% share in the market of UHD TVs and Tojo's casting division has a 20%
share in the market of casting devices.41 A merger can give rise to input foreclosure as
by denying access to its upstream product, Lutyen TV can take away 40% of the
market for casting devices from competitors while its own device would be free to
compete in the market.42
The earlier market purchases were made with the strategic intent of acquiring a
25% share in Tojo and then make an open offer for Tojo for its controlling rights. Since
the acquisition was made in a vertically linked entity, and because the intention
behind the investment was to gain controlling rights over Tojo, it cannot be termed as
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a passive investment and therefore the earlier market purchases cannot take benefit of
the exemption under Item I Schedule I of the Combination Regulations.
II. LUTYEN TV HAS VIOLATED THE CONDITIONAL APPROVAL OF ITS ACQUISITION OF
TOJO'S CASTING DIVISION UNDER §31 OF THE ACT
§31 of the Act provides that, in instances where a combination has, or is likely to
have, an appreciable adverse effect on competition, the Commission may either
prohibit such combination, or it may approve the combination subject to certain
conditions.43 In the present dispute, CCB approved Lutyen TV's acquisition of Tojo
Sticks on the condition that there would be no exclusive arrangement between Lutyen
TV's televisions and the Tojo Sticks, and that Lutyen TV must continue to have its
televisions compatible with all casting devices.44 It has been held by the CCB that this
condition has been violated because Lutyen TV added a clause in its distributorship
agreements that the Lutyen TV television and Tojo Stick must be sold by distributors
as a package.45 It is submitted that this decision of the CCB is correct because :
Lutyen TV's televisions are, effectively, no longer compatible with all casting devices
[A]; and there was an exclusive arrangement between Lutyen TV's televisions and the
Tojo Sticks [B].
[A] Lutyen TV's televisions are effectively not compatible with all casting
devices
While the arrangement to ensure the sale of Lutyen TV televisions and Tojo Sticks is
only at the distributor level,46 it does affect the effective compatibility of Lutyen TV's
UHD televisions with other casting devices. Lutyen TV is promoting the package
arrangement by indicating that using Lutyen TV and Tojo Sticks together would
improve the quality of product offered to the consumer,47 which leads to the inference
that Lutyen TV UHD televisions may be a little more compatible with Tojo Sticks, as
compared to the casting devices of other manufacturers. Thus, the condition imposed
by the CCB regarding compatibility of Lutyen TV television has been violated.
[B] There was no exclusive arrangement between Lutyen TV's televisions and
the Tojo Sticks
In the present dispute, it is submitted that a clause in its distributorship
agreements, which required the distributors to sell Lutyen TV television and Tojo Stick
as a package, is a tie-in arrangement, and hence constitutes an upstream-downstream
exclusive arrangement.48 It is submitted that the agreement entered into by Lutyen TV
with its distributors is, in fact, a package tie-in arrangement. The term ‘tie-in
arrangement’ has been defined in §3(4)(a) of the Act to include any agreement
requiring a purchaser of goods, as a condition of such purchase, to purchase some
other goods.49 Hence, where a consumer, as a condition of purchase, is forced to buy a
good which he may not necessarily want (referred to as a ‘tied good’), at the time of
purchase of a good that he actually wants (referred to as a ‘tying good’), such an
agreement is said to be a tie-in arrangement.50
The main ingredients of a tie-in arrangement are : (i) the parties entering into a tie
-in arrangement must not be a single economic entity,51 (ii) presence of two separate
products or services capable of being tied,52 (iii) the tied product should not be needed
by the consumer to effectively use the tying product,53 (iv) the tie-in arrangement is
binding on the distributor, and not merely a suggestion by the manufacturer,54 (v) the
enterprises entering into a tie-in arrangement must be at different stages or levels of
production chain in different markets in respect of provision of services.55
All of these ingredients can be found in the agreement. Firstly, it is apparently clear
that the clause stipulating a tie-in arrangement was part of an agreement that was
entered into between a manufacturer and its distributors, thus being a binding
agreement between enterprises at two different stages of production. It was, hence,
an agreement and not a mere suggestion given by one department to another
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department of the same economic entity. Secondly, Lutyen TV televisions, sold in

upstream market of UHD televisions, and the Tojo Sticks, sold in the downstream
market of casting devices, are two separate products sold in different product markets.
Thirdly, Lutyen TV televisions have been sold in the market for years and the facts do
not prove that a purchase of Tojo Stick, or any other casting device, is necessary to
properly use a Luyten TV television. Therefore, it is evident that Lutyen TV Pvt. Ltd.
had entered into a tie-in arrangement with its independent distributors for the sale of
Lutyen TV televisions and Tojo Sticks as a package. Since the package was required to
be sold at the price of the television only,56 Lutyen TV televisions should be considered
the tying product and the Tojo Stick should be considered the tied product of the tie-in
arrangement.
III. LUTYEN TV WAS USING ITS DOMINANCE IN THE MARKET FOR UHD TELEVISIONS TO
INCREASE SALES OF THE TOJO STICK IN THE CASTING DEVICES MARKET
It has already been shown that the agreement entered into between Lutyen TV and
its independent distributors was a tie-in arrangement. It is submitted that this tie-in
arrangement was used by Lutyen TV take advantage of its dominance in the UHD
television market in order to increase sales of the Tojo Stick in the casting devices
market. For an enterprise to use its dominance in the tying product market to increase
its market share in the tied product market, the tie-in arrangement must be anti-
competitive.57 A tie-in arrangement is anti-competitive only when it causes or is likely
to cause an appreciable adverse effect on competition in India.58 Such agreements are
not per se illegal, and the rule of reason is applied to access such agreements.59 For a
tie-in arrangement to be anti-competitive, the basic pre-requisites are that the seller
must have sufficient market power with respect to the tying product to appreciably
restrain free competition in the market for the tied product; and the tie-in
arrangement must affect a ‘not insubstantial’ amount of commerce.60 It is thus
submitted that : Lutyen TV had sufficient market power in the market of the tying
product in order to restrain free competition [A]; the tie-in arrangement affects a not
insubstantial amount of commerce [B]; the tie-in arrangement is per se anti-
competitive and illegal [C]; and the tie-in arrangement is anti-competitive as per the
factors laid down in §19(3) [D].
[A] Lutyen TV had sufficient market power in the market of the tying product
in order to restrain free competition
As per European competition law, block exemption, i.e. legal presumption of validity
granted to an agreement, is only provided where either the manufacturer or the
distributor has a market share of more than 30% in any market.61 Hence, it can be
reasonably inferred that where any of the parties to a tie-in arrangement has a market
share of more than 30% in any market for any of the products, such a market share is
construed to be a sufficient market share to restrain free competition. In India, CCI
has set “sufficient market power”, instead of dominance, as the threshold to judge
potential effects of a vertical restraint agreement on competition.62 Taking 30% as a
sufficient market share ensures that not only dominant firms but also firms with
sizeable market power can be held liable for vertical restraints on competition. In the
present dispute, Lutyen TV has a market share of 45%, in the market for UHD
televisions.63 Therefore, it does have sufficient market power with respect to the tying
product and It could use its market share to restrain free competition.
[B] The tie-in arrangement affected a ‘not insubstantial’ amount of commerce
For a tie-in arrangement to be anti-competitive, the arrangement must affect a “not
insubstantial” amount of commerce.64 Tie-in arrangements are generally not perceived
as being anti-competitive when substantial portion of market is not affected.65 While
deciding what constitutes as a ‘not insubstantial’ amount of commerce, the total
volume and monetary value of sales tied through the tie-in arrangement should be
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analysed.66 Courts in the US have even held sales of volume as low as $10,000 to be
‘not insubstantial’.67 The facts of the case clearly show that RK, who was engaged in
the manufacture and sale of casting devices for UHD televisions, lost a “substantial”
amount of sales towards the end of 2017.68 This loss, which coincided with the time
that the tie-in arrangement came into effect, also led to a drop in RK's market share.69
Hence, by substantially affected RK's sales and adversely affecting its market share, it
is clear that the tie-in arrangement affected a ‘not insubstantial’ amount of commerce
in the market of the tied product.
[C] The tie-in arrangement was per se anti-competitive and illegal
In the American case of Northern Pacific Railway Company v. United States, the
United States Supreme Court had discussed, at great length, the per se rule.70 As per
the Court, where an entity exercises a substantial amount of economic power in the
market of the tying product so as to use this leverage in this market to increase the
sales for its tied product, such a tie-in arrangement would be construed to be per se
anti-competitive.71 Such an arrangement denies other firms access to free competition
while, at the same time, restricting the consumers' right to choose by restricting
competition in the market.72 Hence, such arrangements would be deemed to be per se
anti-competitive and unreasonable. So the Court would not investigate factors like the
level of competition in the tied market or consumer preferences.73 In the present
dispute, as has been already established, Lutyen TV has a substantial amount of
market power in the upstream market of UHD televisions. The per se rule should be
applied to the tie-in arrangement and the arrangement should be held as anti-
competitive and illegal.
[D] The tie-in arrangement is anti-competitive as per the factors mentioned in
§19(3) of the Act
As has been already discussed, for a tie-in arrangement to be anti-competitive, it
should either cause or be likely to cause appreciable adverse effect on competition
(AAEC).74 §19(3) of the Act provides that the commission shall, while determining
whether an agreement has an appreciable adverse effect on competition, take into
account various factors that have been mentioned in the section. The first three factors
laid down in §19(3) of the Act relate to negative effects on competition while the
remaining three relate to beneficial effects.75 It is submitted that the tie-in
arrangement is anti-competitive as per the Act since it would only cause negative
effects on competition, without any beneficial effects in the long run.
Firstly, the tie-in arrangement has the potential to drive out existing competitors.
The facts of the case clearly show that the tie-in arrangement has led to a substantial
loss of sale to RK.76 If the agreement can cause a substantial loss of sales to the
dominant player in the market, it definitely has the potential to drive out existing
competitors out of the market. Secondly, the tie-in arrangement could potentially lead
to the foreclosure of competition in the market. The Tojo Sticks are practically being
sold for free since the package is being sold at the price of the tying product, i.e. the
Lutyen TV television.77 This would potentially create a hindrance to the entry of new
firms in the market, since they will have to compete with a firm that is selling the
product for free. Hence, the tie-in arrangement would potentially create barriers to
new entrants in the market, which would even lead to a foreclosure of competition.
Hence, it is clear that the tie-in arrangement would cause substantial negative effects
on competition.
Additionally, while it may be argued that the arrangement would potentially benefit
the consumers since the products are being offered at huge discounts, it is submitted
that the arrangement would not be beneficial to consumers in the long run.
Economists have, in the past, shown how the huge discounts and the lower prices
would merely be a short-term benefit to the consumers. Since these lower prices
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would reduce the competition in the market, the consumers would have to pay higher
prices in the future.78 Hence, the short-term benefits would lead to long-term harm to
the consumers.
Further, the Consumer Protection Act, 1986 provides every consumer with the right
to choose the product he or she wishes to purchase.79 By foreclosing competition and
driving out competitors, the tie-in arrangement would adversely affect this right to
choose guaranteed to the consumers, thus causing them significant harm. Therefore, it
is clear that the tie-in arrangement would not benefit the consumers in the long run.
Further, while it may be claimed by Lutyen TV that the arrangement was entered into
to ensure quality of product and after-sales service,80 the facts of the case do not
provide conclusive information as to how such purposes would be potentially achieved
by the tie-in arrangement. The law mandates that evidence must be shown to prove
the actual or potential effects of the competition.81 In the absence of any evidence on
the potential benefits of the arrangement in the present dispute, it should be decided
that the tie-in arrangement serves no benefit whatsoever.
Hence, all factors to be considered under §19 of the Act clearly show that the
agreement had only negative and no beneficial effects on competition. Therefore, the
tie-in arrangement should be declared anti-competitive and illegal.
IV. THE RESALE PRICE CLAUSE IN THE DISTRIBUTORSHIP AGREEMENT IS ANTI-
COMPETITIVE
Lutyen TV has entered into an agreement with its distributors wherein a clause
stipulated that distributors must not provide a discount exceeding 10% of the
maximum retail price to the end-customers.82 In light of this, it is submitted that : the
agreement was a resale price agreement as per §3(4)(e) of the Act [A]; the resale
price agreement is unreasonable and, hence, anti-competitive [B]; the doctrine laid
down by the U.S. Supreme Court in the Colgate case does not apply to the resale price
agreement [C]; and the resale price agreement is anti-competitive as per the factors
laid down in §19(3) [D].
[A] The Agreement was a Resale Price Agreement as per §3(4)(e) of the Act
The term ‘resale price maintenance’ has been defined in §3(4)(e) of the Act to
include any agreement to sell goods on condition that the prices to be charged on the
resale by the purchaser shall be the prices stipulated by the seller unless it is clearly
stated that prices lower than those prices may be charged.83 For example, a
manufacturer is said to commit resale price maintenance when it supplies the
distributors with a market operating price list wherein the dealers are told to compete
on the prices of the product, as laid down by the manufacturer.84 Further, even
agreements involving a discount control mechanism are covered under the sub-
section.85 A discount control mechanism is said to exist where the dealers are allowed
to provide a discount only up to a maximum permissible limit set by the manufacturer,
and not above the recommended range.86 In the present dispute, Lutyen TV has added
a clause to all distributorship agreements which mandated that distributors only
provide end-customers with a discount not exceeding 10% of the maximum retail
price.87 This clause clearly falls within the definition of discount control mechanism.
Therefore, it is evident that Lutyen TV indulged in resale price maintenance. Hence,
the agreement was a resale price agreement.
[B] The Resale Price Agreement is Unreasonable and Anti-Competitive
It has been recognised in the U.S. that a resale price agreement would be anti-
competitive only if it was unreasonable.88 An example of such an unreasonable
agreement would be where a manufacturer with market power uses resale price
maintenance to give distributors an incentive not to sell the products of its rivals.89 In
the present dispute, Lutyen TV entered into resale price agreements with its
distributors to ensure that distributors do not provide its products at a discount
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greater than the maximum permissible discount.90 Since a distributor usually pays for
higher discounts on products,91 setting a limit on the discounts that could be offered
by distributors would allow distributors to earn more profits selling Lutyen TV products
vis-à-vis the products of its competitors. These higher profits would act as incentives
for the distributors to prioritize sale of Lutyen TV products over its competitors. This
would potentially reduce the demand for the products of Lutyen TV's competitors, thus
leading to a foreclosure of competition.
Alternatively, in the Leegin case, the Court had held that harm to competition is
more likely if the resale price maintenance agreements are brought about as a result
of pressure from distributors rather than on the manufacturer's own initiative.92 This is
true in the present dispute, since the clause was inserted on the request made to
Lutyen TV by certain distributors, who were apprehensive that the distributors selling
Lutyen TV products would offer heavy discounts online.93
From the aforementioned discussion it is evident that the resale price arrangement
was unreasonable as per the standards laid down by the U.S. Supreme Court in the
Leegin case. Therefore, the resale price agreement entered into by Lutyen TV Pvt Ltd
with its competitors was unreasonable and, thus, anti-competitive and illegal.
[C] The Doctrine Laid Down by the U.S. Supreme Court in the Colgate Case
Does Not Apply to the Resale Price Agreement
The U.S. Supreme Court has held on various occasions that a manufacturer cannot
set for the distributors, a price below which a product should not be sold.94 Such an
agreement which set such a price would be void and per se illegal.95 However, it
created an exception to this rule in the landmark case of U.S. v. Colgate & Co
(hereinafter referred to as ‘Colgate case’).96 The decision, popularly known as the
Colgate doctrine, stated that a company may unilaterally terminate business with any
other company without triggering a violation of the antitrust laws since a company has
the power and the right to decide the entities it wishes to do business with.97 Hence,
while resale price maintenance agreements are usually anti-competitive, they would
be permitted if an enterprise were to follow a policy of simply refusing to deal with
vendors who sold below suggested retail price.
The Colgate doctrine, however, should not apply to the present dispute. In the
Colgate case, the U.S. Supreme Court reasoned that Colgate had not resorted to
selling its products to dealers under agreements which obligated the latter not to
resell except at prices fixed by the company, but merely chose to stop supplying its
products to a dealer which refused to adhere to their suggested retail price.98 In the
present dispute, on the other hand, Lutyen TV did not just announce a policy and
sought to enforce it. It entered into legally binding agreements with its distributors to
ensure that distributors only provide a maximum discount of ten per cent on the
maximum retail price.99 These binding agreements gave Lutyen TV the power to
penalise distributors not adhering to the resale price agreement by suing them for
breach of contract. Thus, the present dispute should be distinguished from the Colgate
case and the doctrine should not apply. Therefore, it should be decided that the resale
price agreement entered into by Lutyen TV was anti-competitive.
[D] The Resale Price Agreement is Anti-Competitive as per the Factors Laid
Down in §19(3)
A resale price arrangement is only in violation of the Act if it causes or is likely to
cause an appreciable adverse effect on competition (AAEC).100 While determining
AAEC, factors like creation of entry barriers, foreclosure of competition, driving out
existing competitors, improvements in production or distribution of good, promotion of
scientific and economic development and the potential benefit to the consumers need
to be taken into account.101
On account of this, it is submitted that the resale price agreement is anti-
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competitive for the following reasons. Firstly, the resale price agreement adversely
affects consumers by restricting the amount of discount that could be offered by
distributors. Since the clause prevented some online distributors from offering huge
discounts on their products,102 it would force consumers to pay higher prices for
Lutyen TV products than would have been offered had it not been for the resale price
agreement. Hence, the interests of the consumers have been adversely affected.
Secondly, the facts are not conclusive to show that the resale price agreement
improves the production or distribution of Lutyen TV products or the services of
distributors. Thirdly, there is no evidence to indicate that the resale price agreement
promotes the technical, scientific and economic development by means of production
or distribution of goods or provisions of services.
The aforementioned discussion thus shows that the resale price agreement neither
had nor is likely to have any beneficial effects on competition. Instead, it is submitted
that the resale price agreement has the potential to adversely affect competition.
Fixing a minimum resale price would allow distributors with larger market power to
drive small dealers out of the business. Earlier, these small distributors could have
competed against their well-established counterparts by offering greater discounts in
lieu of lower quality pre-sale and post-sale services.103 They could also have saved up
on advertisement costs by relying on the larger distributors for product advertisement,
a practice usually known as free-riding.104 Now, with the resale price agreement, these
small distributors may not be able to compete on the same level as the large
distributors, which would lead to the foreclosure of distributor market. Additionally, as
has been argued earlier, the resale price agreement would provide an incentive to the
distributors to prioritize sale of Lutyen TV products over its competitors, which could
potentially lead to a foreclosure of competition. Therefore, it is abundantly evident
from the aforementioned discussion that the resale price agreement is in violation of
§19(3) and, hence, is anti-competitive and illegal.
V. SANDY HOME STORE HAS NOT ENGAGED IN REFUSAL TO DEAL
Lutyen TV filed a complaint against Sandy Home Store for refusing to deal in its
products under §3(4)(d) of The Act, 2002.105 The Act defines “refusal to deal” as
including “any agreement which restricts, or is likely to restrict, by any method the
persons or classes of persons to whom goods are sold or from whom goods are
bought”.106 The DG, in his findings, had stated that Sandy had engaged in the practice
of “refusal to deal”. However, the CCB, in its decision, had held that Sandy had not
engaged in the practice of “refusal to deal”.107
It is submitted that Sandy Home Store has not engaged in “refusal to deal” under
§3(4)(d) because a business entity is free to exercise its discretion as to the parties
with whom it will deal [A], refusal by Sandy Home Store did not eliminate all
competition as there were other distributors in the market as well [B] and the
touchstone of §19(3) is not satisfied [C]. In any case, refusal to deal may be allowed if
it can be objectively justified [D].
[A] Sandy Home Store is free to choose the parties whom it trades with
In the landmark case of United States v. Colgate & Co.,108 the U.S. Supreme Court
declared that in the absence of any purpose to create or maintain a monopoly, a trader
or a manufacturer engaged in a private business is free to exercise his discretion as to
the parties with whom he will deal. Hence, where a manufacturer or trader does not
intend to create a monopoly, i.e. he does not intend to create a market condition
wherein “only one economic entity produces a particular product or provides a
particular service”,109 he has the freedom to decide the enterprises he wants to deal
with. This has been reiterated in various decisions in the U.S. since then.110 The
freedom to deal with anyone by choice has also been recognized by the CCI and by the
European Court of Justice.111
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In the present dispute, the facts do not prove that Sandy intended to create or
maintain a monopoly. In this case, the refusal to stock up on Lutyen TV televisions or
Tojo Sticks in no way creates a monopoly or maintains it. While it is true that Sandy is
renowned for stocking all television brands as well as casting devices,112 the mere
refusal to stock up on Lutyen TV televisions or Tojo Sticks does not, in any way,
indicate the intention to create or maintain a monopoly. In fact, Sandy only refused to
stock Lutyen TV televisions or Tojo Sticks due to the discount restrictions that were
imposed by the Lutyen TV, and not because it intended to monopolize the business.
Additionally, Sandy's substantial market share is not relevant in the present dispute
because a firm's possession of large market share does not necessarily mean that it is
either charging monopolistic rates or behaving in a manner that decreases social
welfare.113 The crucial factor is the intention to create a monopoly, which, as it has
been shown, did not exist in the present case. Thus, it is submitted that Sandy Home
Store is free to choose the parties whom it deals with and it did not engage in ‘refusal
to deal’.
[B] Refusal by Sandy Home Store did not lead to elimination of all competition
In Commercial Solvents v. Commission of the European Communities,114 the ECJ
held that the dominant undertaking engages in refusal to deal if its conduct is such
that it results in the elimination of all competition in the relevant market. In the Oscar
Bronner case,115 the ECJ further refined the law on the refusal to deal by introducing
the element of indispensability. This means that the conduct of the dominant
undertaking would be termed as ‘refusal to deal’ if it is a dominant undertaking (i);
the service provided by the dominant undertaking is indispensable (ii); and it results
in the elimination of all the competition from the market (iii).
i) Sandy is not a dominant undertaking
In this case, it is clear that though Sandy Home Store was the largest distributor in
the market, there were other distributors of televisions in the market as well with the
closest competitor just 12-15% behind Sandy in terms of market share.116 Further,
this market does not include online sellers, who form an independent and important
channel of distribution.117 If online distributors were included, it would reduce Sandy's
market share even further. Hence, Sandy is not a dominant undertaking in the market
for distributors of televisions.
ii) Sandy's distribution network is not indispensable
In the Oscar Bronner case, there arose a similar fact situation. The plaintiff, in that
case, wanted to access respondent's distribution channel, contending that the
respondent must provide access to its distribution channel to ensure the healthy
development of competition. However, the Court held that the refusal to provide the
service would be categorized as refusal to deal only if such a service is indispensable,
inasmuch as there is no actual or potential substitute in existence for that service.118
Since other distribution channels were present in the market, access to the
respondent's distribution channel was denied to the plaintiff. In IMS Health GmBH &
Co. v. NDC Health GmBH & Co.,119 the European Court of Justice laid down three
cumulative conditions that need to be fulfilled in order for a service or product to be
indispensable. These are “refusal is preventing the emergence of a new product for
which there is a potential consumer demand, that it is unjustified and such as to
exclude any competition on a secondary market.”120 These three conditions were also
upheld by ECJ in Microsoft Corp. v. Commission of the European Communities.121
In the present fact situation, it is clear that the products, namely, Lutyen TV's
televisions and Tojo Casting Sticks are not new. This is because Lutyen TV's products
already exist in the market even before Sandy refused to stock them.122 Moreover, the
refusal by Sandy Home Store is in no way preventing their emergence in the market.
Furthermore, the refusal is justified because Sandy Home Store refused to stock up on
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Lutyen TV's products only because they added a clause in their agreement which
stipulated the maximum discount at 10% which would go against the practice of
Sandy Home Store to provide products at discount of more than 10% and up to
20%.123 The CCI has held that an objective business rationale to protect the
commercial interest cannot be overlooked unless it has an exclusionary effect.124
Sandy's conduct is an objective business rationale because if it had not refused to
stock Lutyen TV's products, it would have resulted in Sandy Home Store not being
able to use the advantage of its large portfolio and economies of scale that it has
gained over its competitors.125 Similarly, Hence, the refusal by Sandy Home Store was
justified. Moreover, in addition to Sandy Home Store, there are other distributors in
the market.126 In addition to this, Lutyen TV can also sell its products through the
online distribution channel.127 Thus, there are actual substitutes in the market in the
form of other distributors and online sellers. Therefore, all the three conditions are not
fulfilled and the indispensability doctrine does not apply.
iii) Refusal by Sandy does not lead to elimination of all competition
In Commercial Solvents v. Commission of the European Communities,128 the court
looked at the facts of the case to decide whether the conduct resulted in elimination of
competition or not. Similarly, in the present dispute, none of the facts prove that the
conduct of Sandy would lead to or is likely to eliminate all competition from the
market.
Thus, it is submitted that the refusal by Sandy would not lead to the elimination all
competition from the market.
[C] The Touchstone of §19(3) has not been satisfied even if there is refusal to
deal
As per §3(4)(d) of the Act, 2002, a vertical agreement including refusal to deal
shall be an anti-competitive agreement only if “such agreement causes or is likely to
cause an appreciable adverse effect on competition in India.” In Royal Agency v.
Chemists and Druggists Association, Goa,129 the court held that “Vertical restraints in
the form of agreements between persons/enterprises that are related at different
levels of the production, distribution etc. chain is not a presumed violation and is
covered under sec 3(4) of the Act, governed by rule of reason, and the touch stone is
§19(3) of the Act.” Similarly, in Shamsher Kataria v. Honda Siel Cars India Ltd.,130 the
CCI held that the determination of adverse effect on competition is made after an
analysis of the positive and negative factors listed under §19(3) of the Act, 2002. The
yardstick of §19(3) is very similar to the rule of reason test in the U.S. under which
the courts weigh the likely anti-competitive effects of restraint against its pro-
competitive efficiency enhancing benefits.131
As has already been discussed, §19(3) of the Act, 2002 prescribes six factors which
have to be considered in order to determine whether an agreement has an appreciable
adverse effect on competition under §3. It is submitted that, considering these
factors, the conduct of Sandy was not anti-competitive.
First, the refusal by Sandy to stock up on the products of Lutyen TV in no way
creates any barriers to new entrants in the market because Lutyen TV is an established
business enterprise which was set up in 1989 and has been operating in Bohemia ever
since.132 Hence, Sandy's conduct does not create any entry barriers in the market.
Secondly, Sandy's refusal to trade in Lutyen TV's products is not driving Lutyen TV out
of the market as there are other distributors in the market as well which can cater to
Lutyen's distribution requirements.133 Further, since Sandy's conduct neither hinders
entry into the market nor drives existing competitors out of the market,134 the refusal
by Sandy did not lead to foreclosure of competition. With respect to the fourth factor,
the refusal by Sandy Home Store does not affect the accrual of benefits to the
consumers. This is because they can anyway buy the products of Lutyen TV through
-----------------------------------------------------------------------------------------------------------------------------------------------------------
other distributors and the refusal in no way affects the accrual of benefits to the
consumers. The fifth and sixth factors are clearly not applicable to the present case
and thus do not apply.
Thus, it is submitted that after analyzing the positive and negative factors listed out
in §19(3), the refusal to supply does not lead to an appreciable adverse effect on
competition. Similarly, the refusal also passes the rule of reason analysis.
[D] In any case, Refusal by Sandy Home Store should be allowed because it
can be objectively justified
Even if it is contended that the conduct of Sandy Home Stores is such that it
engaged in ‘refusal to deal’ under §3(4) of the Act, 2002, it is an established principle
of anti-trust law that an abusive conduct may be allowed if it can be objectively
justified as per the facts of the case.135 There have been various cases in which the
court has allowed the abusive conduct if it could be objectively justified.136 Although, it
is an established defence in anti-trust law,137 its application is case-specific.138 A
dominant undertaking can take this defence if it can justify its conduct leading to
foreclosure of competition on the ground of efficiencies.139 A dominant undertaking has
to fulfill four conditions, which are, (i) the efficiencies have been, or are likely to be,
realised as a result of the conduct; (ii) the conduct is indispensable to the realisation
of those efficiencies; (iii) the likely efficiencies brought about by the conduct outweigh
any likely negative effects on competition and consumer welfare in the affected
markets and; (iv) the conduct does not eliminate effective competition, by removing
all or most existing sources of actual or potential competition.
It is submitted that all these conditions are satisfied by the Sandy Home Store.
Firstly, Sandy's conduct would lead enable it to avail the benefits of its economies of
scale.140 This would lead to the realization of cost efficiency since it would be able to
provide products at a discount which can extend up to 20%. Therefore, the first
condition is fulfilled. Secondly, the refusal by Sandy Home Stores is indispensable to
attain efficiency, otherwise, it would have been forced to provide products at the
stipulated maximum discount of l0% on the MRP of Lutyen TV's products.141 In
addition to this, Sandy's conduct would in fact increase the welfare of consumers as
they would be able to get the same products at lower prices because of higher
discounts. It would outweigh any negative impact on competition thereby satisfying
the third condition. Finally, the fourth condition is also satisfied because Sandy's
refusal does not eliminate effective competition in any manner whatsoever. This is
because even if Sandy's conduct has an AAEC, it would not result in the removal of all
or most existing sources of actual or potential competition because there are
numerous small distributors who have a market share of 2-5%.142
In the light of aforesaid facts and authorities, it is submitted that Sandy's conduct
can be objectively justified even though it may be engaging in ‘refusal to deal’.
PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it
is humbly prayed that this Honorable Tribunal may be pleased to adjudge and declare
that:
1. Lutyen TV's acquisition of Tojo's casting division is not exempt from
notification under §6 of the Act.
2. Lutyen TV's earlier market purchases are not exempt under Item I Schedule I
of the Combination Regulations.
3. Lutyen TV has violated the CCB's orders passed under §31 of the Act.
4. The arrangement between Lutyen TV and Tojo sticks qualifies as a tie-in
arrangement under §3(4)(a) of the Act.
5. Lutyen TV has engaged in resale price maintenance under §3(4)(e) of the Act.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
6. Sandy Home Store has not engaged in refusal to deal under §3(4)(d) of the
Act.
And pass any other order that this Honorable Tribunal may deem fit.
1 Proposition, ¶ 11.
2 §6(2), The Competition Act, 2002.
3 §43A, The Competition Act, 2002.

4
Proposition, ¶ 7.
5
§5, The Competition Act, 2002.
6 §5(a), The Competition Act, 2002.
7
Ministry of Corporate Affairs, Notification S.O. 675(E), (March 4, 2016).
8
Proposition, ¶ 5.
9 Clarifications, Answer 6.
10
11
13
14
ITC Limited, Combination Registration No. C-2017/02/485, (Competition Commission of India).
15 Union of India v. IndusInd Bank Limited, (2016) 9 SCC 720, ¶ 25 (Supreme Court of India).
16
17
ITC Limited, Combination Registration No. C-2017/02/485, ¶ 11.15 (Competition Commission of India).
20 Schulke GmbH, Combination Registration No. C-2015/12/349, ¶ 8.12 (Competition Commission of India).
21
Future Consumer Enterprise Limited, Combination Registration No. C-2016/03/384, ¶ 14 (Competition
Commission of India).
22 SCM Soilfert Limited v. Competition Commission of India (2016) Comp. L.R. 1111, (Competition Appellate
Tribunal).
23
Proposition, ¶ 7.
24 Regulation 9(4), Combination Regulations, 2011.

25 Cairnhill, Combination Registration No. C-2015/05/276, ¶ 6 (Competition Commission of India).
26 EMC/McNally Bharat Engineering, Combination Registration No. C-2015/07/293, (Competition Commission of
India).
27
EMC/McNally Bharat Engineering, Combination Registration No. C-2015/07/293, ¶ 13 (Competition Commission
of India).
29 Item I Schedule I, Combination Regulations, 2011.
30
Proposition, ¶ 7.
31SCM Soilfert/Deepak Fertilizers, Combination Registration No. C-2014/05/175, ¶ 8.3 (Competition Commission of
India).
32 Zuari/UB, Combination Registration No. C-2014/06/181, ¶ 8 (Competition Commission of India).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
33
Saab/Pipavav Defence, Combination Registration No. C-2012/11/95, ¶ 5 (Competition Commission of India).
34 Piramal Enterprises/Shriram, Combination Registration No. C-2015/02/249, ¶ 7 (Competition Commission of
India).
35
New Moon/Mylan, Combination Registration No. C-2014/08/202, ¶ 9 (Competition Commission of India).
36
New Moon/Mylan, Combination Registration No. C-2014/08/202, ¶ 9 (Competition Commission of India).
37 Hart-Scott-Rodino Antitrust Improvements Act, 1976.
38SCM Soilfert/Deepak Fertilizers, Combination Registration No. C-2014/05/175, ¶ 8.2 (Competition Commission of
India).
39
European Commission, Commission Notice : Guidelines on the Assessment of Horizontal Mergers under the
Council Regulation on the Control of Concentrations Between Undertakings, OJ C 31 (2004).
40
Clarifications, Answer 19.
41 Clarifications, Answer 2 r/w Proposition, ¶ 5.
42
European Commission, Commission Notice : Guidelines on the Assessment of Non-Horizontal Mergers under the
Council Regulation on the Control of Concentrations Between Undertakings, non-horizontal merger guidelines OJ C
265 (2008).
43
§31, The Competition Act, 2002.
44
Proposition, ¶ 10.
45
Proposition, ¶ 16.
47
Proposition, ¶ 10.
48
Proposition, ¶ 10.
49 Sec. 3(4)(a), The Competition Act, 2002.
50 In Re : IELTS Australia Pty Ltd., Case No. 66 of 2010, ¶ 7 (Competition Commission of India).
51
Exclusive Motors Pvt. Limited v. Automobili Lamborghini S.P.A., Case No. 52 of 2012, ¶ 6 (Competition
Commission of India); Viho Europe BV v. Commission of the European Communities, C-73/95 1996 ECR I-5457, ¶
16 (European Court of Justice).
52 Fx Enterprise Solutions Pvt Ltd. v. Hyundai Motor India Limited, No. 36 of 2014, ¶ 8 (Competition Commission
of India).
53
In Re : IELTS Australia Pty Ltd., No. 66 of 2010, ¶ 8 (Competition Commission of India).
54
ESYS Information Technologies Pvt. Ltd. v. Intel Corporation, Case No. 48 of 2011, ¶ 5.19 (Competition
55 FCM Travel Solutions (India) Limited v. Travel Agents Federation of India, RTPE No. 09 of 2008, ¶ 19
(Competition Commission of India).
57
Fx Enterprise Solutions Pvt Ltd. v. Hyundai Motor India Limited, Case No. 36 of 2014, ¶ 99 (Competition
59Tata Engineering and Locomotive Co Ltd (Telco) v. The Registrar of Restrictive Trade Agreement, (1977) 2
SCC 55 : AIR 1977 SC 973, ¶ 693 (SC).
60
Fx Enterprise Solutions Pvt Ltd. v. Hyundai Motor India Limited, Case No. 36 of 2014, ¶ 99 (Competition
61 Article 3, EU Commission Regulation No. 330 of 2010.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
62Fx Enterprise Solutions Pvt Ltd. v. Hyundai Motor India Limited, Case No. 36 of 2014, ¶ 99 (Competition
63
Proposition, ¶ 10.
64 Sonam Sharma v. Apple Inc., No. 24 of 2011, ¶ 69 (Competition Commission of India).
65 United States v. Loew's Inc., 371 US 38 (1962), at 49 (United States Supreme Court).
66
International Salt Co. v. United States, 332 US 392 (1947), at 396 (United States Supreme Court).
67
Tic-X-Press v. Omni Promotions Co., 815 F.2d 1407 (1987), at 1419 (11th Circuit, US).
69
Proposition, ¶ 15.
70
Northern Pacific Railway Company v. United States, 356 US 1 (1958) (United States Supreme Court).
71Northern Pacific Railway Company v. United States, 356 US 1 (1958), at 5-6 (United States Supreme Court);
M. Whinston, Tying, Foreclosure, and Exclusion, 80(4) AMERICAN ECONOMIC REVIEW, 837, 838 (1990).
72
United States v. Microsoft Corp., 253 F.3d 34 (2001), at 56 (D.C. Circuit Court, U.S.).
73 Northern Pacific Railway Company v. United States, 356 US 1 (1958), at 9 (United States Supreme Court).
74
§3(4), The Competition Act, 2002; Competition Commission of India v. Steel Authority of India Ltd., (2010) 10
SCC 744, ¶ 87 (Supreme Court of India).
75
Neeraj Malhotra v. Deustche Post Bank Home Finance Ltd., Case No. 5 of 2009, ¶ 98 (Competition Commission
of India).
78
J.P. Bauer, A Simplified Approach to Tying Arrangements : A Legal and Economic Analysis, 33(2) VANDERBILT
LAW REVIEW, 283, 296 (1980).
79
§6, Consumer Protection Act, 1986.
81
Neeraj Malhotra v. Deustche Post Bank Home Finance Ltd., Case No. 5 of 2009, ¶ 100 (Competition
83 §3(4)(e), The Competition Act, 2002.
84
Jasper Infotech Private Limited v. Kaff Applicances (India) Pvt. Ltd., Case No. 61 of 2014, ¶ 6 (Competition
85Fx Enterprise Solutions Pvt Ltd. v. Hyundai Motor India Limited, Case No. 36 of 2014, ¶ 89 (Competition
86 Fx Enterprise Solutions Pvt Ltd. v. Hyundai Motor India Limited, No. 36 of 2014, ¶ 7 (Competition Commission
of India).
88 Leegin Creative Leather Prod., Inc. v. PSKS, Inc., 551 US 877 (2007), at 900 (United States Supreme Court).
91D. Sirias and S. Mehra, Quantity Discount Versus Lead Time-Dependent Discount in an Inter-Organizational
Supply Chain, 43(16) INTERNATIONAL JOURNAL OF PRODUCTION RESEARCH 3481, 3482 (2005).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
94 Boston Store of Chicago v. Am. Graphophone Co., 246 US 8 (1918), at 25 (United States Supreme Court).
95 Dr. Miles Medical Co. v. Park & Sons Co., 220 US 373 (1911), at 396 (United States Supreme Court).
96 U.S. v. Colgate & Co, 250 US 300 (1919) (United States Supreme Court).
97 U.S. v. Colgate & Co, 250 US 300 (1919), at 307 (United States Supreme Court).
98 U.S. v. Colgate & Co, 250 US 300 (1919), at 306-308 (United States Supreme Court).
100
§3(4), The Competition Act, 2002.
103
John C. Hilke, Free Trading Or Free Riding : An Examination Of The Theories And Available Empirical Evidence
On Gray Market Imports, 5 (Working Paper No. 150, Bureau of Economics, Federal Trade Commission, 1987);
Gregory T. Gundlach et al, Free Riding and Resale Price Maintenance : Insights from Marketing Research and
Practice, 55(2) THE ANTI -T RUST BULLETIN 381, 388-389 (2010).
104Robert L. Steiner, Does Advertising Lower Consumer Prices?, 37 MARKETING JOURNAL 1, 19 (1973); Herbert
Hovenkamp, Exclusive Joint Ventures and Antitrust Policy, 1 COLUMBIA BUSINESS LAW REVIEW 1, 97-98 (1995).
105
Proposition, ¶ 18.
108
U.S. v. Colgate & Company, 250 US 300 (1919), 307 (United States Supreme Court).
109 BLACK 'S LAW DICTIONARY , 1098 (Bryan A. Garner ed., 9th edn., 2011).
110Verizon Communications Inc. v. Law Offices of Curtis Trinko, 540 US 398 (2004) (United States Supreme
Court).
111Oscar Bronner GmBH & Co. KG v. Mediaprint Zeitings-und Zeitschriftenverlag GmBH & Co. KG., Case C-7/97,
1998 ECR I-7791 (The European Court of Justice); Prime Mag. Subscription Service Ltd. v. Wiley India Pvt. Ltd.,
Case No. 07 of 2016 (Competition Commission of India).
112 Proposition, ¶13 and 14.
113Adam Candeub, Trinko and Re-grounding the Refusal to Deal Doctrine, 66(4) PITTSBURGH LAW REVIEW 821, 827
(2005).
114Commercial Solvents v. Commission of the European Communities, Cases 6 and 7/73, ECR 223 (1974), ¶ 25
(The European Court of Justice).
115Oscar Bronner GmBH & Co. KG v. Mediaprint Zeitings-und Zeitschriftenverlag GmBH & Co. KG., Case C-7/97,
1998 ECR I-7791 (The European Court of Justice).
117 Proposition, ¶12 r/w Clarifications, Answer 30.
118
Oscar Bronner GmBH & Co. KG v. Mediaprint Zeitings-und Zeitschriftenverlag GmBH & Co. KG., Case C-7/97,
1998 ECR I-7791, ¶ 41 (The European Court of Justice).
119IMS Health GmBH & Co. v. NDC Health GmBH & Co., Case C-418/01, 2004 ECR I-5039 (The European Court of
Justice).
120IMS Health GmBH & Co. v. NDC Health GmBH & Co., Case C-418/01, 2004 ECR I-5039, ¶ 38 (The European
Court of Justice).
121 Microsoft Corp. v. Commission of the European Communities, Case T—201/04, 2007 ECR II-3601 (The
-----------------------------------------------------------------------------------------------------------------------------------------------------------
European Court of Justice).

122 Proposition, ¶12.
123 Proposition, ¶12 and 13.
124K Sera Sera Digital Cinema Ltd. v. Pen India Ltd., Case No. 97 of 2016, ¶ 10 (Competition Commission of
India).
126
127
Proposition, ¶12 r/w Clarifications, Answer 30.
128Commercial Solvents v. Commission of the European Communities, Cases 6 and 7/73, 1974 ECR 223, (The
129Royal Agency v. Chemists and Druggists Association, Goa, Case No. 63 of 2013, ¶ 43 (Competition Commission
of India).
130
Shamsher Kataria v. Honda Siel Cars India Ltd., Case No. 03 of 2011 (Competition Commission of India).
131 State Oil Co. v. Khan, 522 US 3 (1997) (United States Supreme Court).
132 Proposition, ¶3 read with Clarifications, Answer 14.
133
135 Richard Whish, and David Bailey, COMPETITION LAW , 211 (7th edition, 2012).
136
BBI/Boosey and Hawkes OJ [1987] L 286/36 (The Commission of the European Communities).
137European Commission, Guidance On The Commission's Enforcement Priorities In Applying Article 82 Of The EC
Treaty To Abusive Exclusionary Conduct By Dominant Undertakings, OJ C-45 (2009).
138 Richard Whish, and David Bailey, COMPETITION LAW, 211 (7th edition, 2012).
139
P British Airways v. Commission of the European Communities, Case C-95/04, 2007 ECR I-2331 (The
141 Proposition, ¶12,
142
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

9th NLUJ Antitrust Moot, 2018

IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL OF BOHEMIA, AT

V. Sandy Home Store Has Not Engaged in Refusal to Deal xix

European Commission, Commission Notice : Guidelines on the 9

of 2013, ¶ 43 (Competition Commission of India).

Additionally, it is submitted that the tie-in arrangement is not per se unreasonable or

department of the same economic entity. Secondly, Lutyen TV televisions, sold in

3 §43A, The Competition Act, 2002.

24 Regulation 9(4), Combination Regulations, 2011.

European Court of Justice).

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