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11th NLUJ Antitrust Moot, 2020

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

Appeal (At) (Competition) Nos. 1-2 of 2020
(Filed under section 53B of the Competition Act, 2002)
In the Matter of
Food Service Aggregators … Appellants;
Versus
Competition Commission of Vormir & Vormirian Association of
Restaurants … Respondents.
TABLE OF CONTENTS
LIST OF v
ABBREVIATIONS________________________________________________
INDEX OF ix
AUTHORITIES________________________________________________
STATEMENT OF xxiv
JURISDICTION________________________________________
STATEMENT OF xxvi
FACTS________________________________________________
ISSUES FOR xxix
CONSIDERATION_________________________________________
SUMMARY OF xxx
ARGUMENTS____________________________________________
WRITTEN 1
ARGUMENTS__________________________________________________
ISSUE I : - WHETHER THE FSAS VIOLATED PROVISIONS OF §4 OF THE 1
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 ONLINE 1
FOOD AGGREGATION SERVICES IN THE STATE OF VORMIR
1. The relevant product market is online food aggregation 2
2. The relevant geographic market is the State of Vormir 3
B. THAT THE FSAS ARE COLLECTIVELY AND/OR INDIVIDUALLY 3
DOMINANT IN THE RELEVANT MARKET
1. The FSAs are collectively dominant within the meaning of §4 of the Act 4
(i) FSAs constitute an S.E.E. 4
a) FSAs constitute a group 5
b) There is inseparability of economic interests of the FSAs 5
(ii) FSAs are jointly dominant in the relevant market 6
a) Market share, size and structure 6
b) Heavy dependence of consumers on the services of FSAs 7
c) Absence of countervailing buying power 8
2. Alternatively, Trimato is individually dominant within the meaning of 8
§4 of the Act
(i) Market Share and position of strength vis-à-vis its competitors 8
(ii) Vertical Integration 9
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C. ADDITIONALLY, THAT THE FSAS HAVE ABUSED THEIR DOMINANT 9

POSITION IN THE RELEVANT MARKET
1. The conduct of FSAs is in contravention of §4(2)(a) of the Act 10
(i) Discriminatory pricing policy and denial of market access 10
(ii) Predatory pricing 11
a) Pricing below cost prices 12
b) Test of no commercial sense and predatory intent 12
2. FSAs have indulged in technical development to the prejudice of 13
consumers under §4(2)(b)(ii) of the Act
3. The FSAs have used their dominant position in the relevant market by 13
leveraging its position to enter into another market
(i) FSAs are dominant in the relevant market of ‘online food services 14
aggregation’
(ii) FSAs are operating in two separate but interconnected markets 14
(iii) The conduct of FSAs is not objectively justified 15
ISSUE II : - WHETHER THE FSAS VIOLATED THE PROVISION OF 16
SECTIONS 3(3) READ WITH §3(1) OF THE ACT?
A. THE FSAS HAVE ENGAGED IN CARTELISATION 16
1. There exists an anti-competitive agreement between the APPELLANTS 17
2. Existence of circumstantial evidence 18
3. Agreement between the entities fall within the ambit of §3(3) read 20
with §3(1)
B. THE CONDUCT OF APPELLANTS HAS CAUSED AAEC 21
ISSUE III : - WHETHER THE FSAS VIOLATED THE PROVISIONS OF §3(4) 22
(E) AND §3(3) READ WITH §3(1) BY WAY OF THEIR APPAS?
A. THERE IS AN EXPLICIT VERTICAL AGREEMENT IN THE MANNER OF 22
RESALE PRICE MANAGEMENT BETWEEN THE FSAS AND THE
RESTAURANTS
1. APPAs fall within the ambit of §3(4)(e) of the Act 22
(i) The food sold is at a stipulated price 23
(ii) The restaurants cannot charge below the stipulated price 24
mandated by APPAs
2. APPAs are wide parity agreements and treated as anti-competitive in 25
various antitrust jurisdictions
B. THE RESTRAINT IMPOSED BY THE APPAS CAUSE AN AAEC IN THE 26
RELEVANT MARKET
3. Deter the entry of rival platforms in the relevant market 26
(i) FSAs are mandatory in nature and distort competition 27
(ii) The APPAs bar the restaurants to offer better terms to FSAs 27
charging less commissions
(iii) Deep discounts along with APPAs also distort competition in the 28
conventional market of food services
4. The parity agreement is detrimental to the promotion of technical 29
scientific and economic development
C. THE PARITY AGREEMENTS BETWEEN THE FSAS AND THE 29
RESTAURANTS ENABLES A HORIZONTAL COLLUSION LEADING TO
HIGHER PRICES FORMING A HUB AND SPOKE CARTEL
ISSUE IV : - WHETHER VAR, ALONG WITH ITS MEMBER RESTAURANTS, 31
VIOLATED THE PROVISIONS OF §3(3) READ WITH §3 (1) OF THE ACT?
A. VAR IS NOT FELICITATING A COLLUSION BETWEEN ITS MEMBER 31
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RESTAURANTS
1. There is no agreement either express or tacit 31
2. The mere fact of exchange of information does not lead to collusion 32
B. THERE IS NO CONSPIRACY BETWEEN VAR AND ITS MEMBER 33
RESTAURANTS TO FIX PRICES
1. Price parallelism does not amount to price fixing 33
2. The increase in prices of VAR restaurants is justified 35
PRAYER 37
LIST OF ABBREVIATIONS
ABBREVIATIONS MEANING
& And
¶ Paragraph
§ Section
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
Comp. AT 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
Ltd. Limited
MNC Multi National Corporation
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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
STATUES PAGE NO.
§19(3)(e), The Competition Act, No. 12 36
of 2003, INDIA CODE (2002)
§19(3)(f), The Competition Act, No. 12 of 29
2003, INDIA CODE (2002)
§19(4), The Competition Act, No. 12 of 14
2003, INDIA CODE (2002).
§2 (b), The Competition Act, No. 12 of 23
2003, INDIA CODE (2002)
§2(h), The Competition Act, No. 12 of 1, 2
2003, INDIA CODE (2002).
§2(r), The Competition Act, No. 12 of 2
2003, INDIA CODE (2002)
§2(t), The Competition Act, No. 12 of 13
2003, INDIA CODE (2002).
§3(3)(a), The Competition Act, No. 12 of 30
2003, INDIA CODE (2002).
§3(4)(e), The Competition Act, No. 12 of 25
2003, INDIA CODE (2002).
§3, The Competition Act, No. 12 of 2003, 22, 23, 34
INDIA CODE (2002).
2003, INDIA CODE (2002)
§4(2)(e), The Competition Act, No. 12 of 14
2003, INDIA CODE (2002).
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§4, The Competition Act, No. 12 of 2003, 1

INDIA CODE (2002).
§179, The Companies Act, Act 18 of 5
2013, INDIA CODE (2013).
§18, The Competition Act, No. 12 of 9
2003, INDIA CODE (2002).
§2(s), The Competition Act, No. 12 of 3
2003, INDIA CODE (2002).
§2(t), The Competition Act, No. 12 of 2
2003, INDIA CODE (2002).
2003, INDIA CODE (2002).
§5, Explanation (b), The Competition Act, 3
No. 12 of 2003, INDIA CODE (2002).
Act against Restraints of Competition, 26
2013.
INDIAN CASES PAGE NO.

All India Online Vendors Association v. 2, 3
Flipkart India (P) Ltd., Case No. 20 of
2018 (CCI), ¶ 26
All India Tyre Dealer's Federation, 21
Informant v. Tyre Manufacturers, 2013
CompLR 92 (CCI).
Arshiya Rail Infrastructure Limited (ARIL) 3, 5
v. Ministry of Railways (MoR) through the
Chairman, Railway Board and Container
Corporation of India Limited (CONCOR),
[2013] 112 CLA 297 (CCI).
Atos Worldline India Pvt. Ltd. v. Verifone 12, 15
India Sales Pvt. Ltd., 2015 CompLR 327
(CCI).
Belaire Owners' Association v. DLF 1, 9
Limited Haryana Urban Development
Authority Department of Town and
Country Planning, State of Haryana,
[2011] 104 CLA 398 (CCI).
Builders Association of India v. Cement 32
Manufacturers' Association, Case No. 29
of 2010 (CCI).
Builders Associations v. Cement 16
manufacturers Association, Case No. 29
of 2010 (CCI).
Competition Commission of India v. 23
CCAT, (2017) 5 SCC 17.
Consumer Online Foundation v. Tata Sky 4
Limited, Dish TV India Limited, Reliance
Big TV Ltd. and Sun Direct TV Pvt. Ltd.,
Case No. 2 of 2009 (CCI);
Dhanraj Pillai v. Hockey India, Case No. 28
73 of 2011 (CCI).
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Director General (Supplies & Disposals) v. 18

Puja Enterprise Basti., [2013] 116 CLA
126
Dish TV India Limited v. Hathway Cable & 4
Datacom Limited, Case No. 78 of 2013
(CCI).
Excel Corp. Care v. CCI, (2017) 8 SCC 27
47.
Exclusive Motors (P) Ltd. v. Automobili 4
Lamborghini S.P.A., Case No. 52 of 2012
(CCI).
FHRAI v. Make My Trip India (P) Ltd., 26
2019 SCC OnLine CCI 37.
Fx Enterprise Solutions India (P) Ltd. v. 21
Hyundai Motor India Ltd., Case No. 36 of
2014 (CCI)
HT Media Ltd. v. Super Cassettes 8
Industries Ltd., 2015 CompLR 431 (CCI)
In Re, Alleged Cartelization by Steel 18
Producers, 2014 CompLR 145 (CCI).
In Re, Aluminium Phosphide Tablets 18
Manufacturers, 2012 CompLR 753 (CCI).
In Re, Express Industry v. Jet Airways 33
In Re, Express industry v. Jet Airways, 32
In Re, Flashlights Market in India v. 33
Eveready Industries, 2018 SCC OnLine
CCI 98.
In Re, Samir Agarwal and ANI 16
Technologies Ltd., Case No. 37 of 2018
(CCI).
In Re, Suo-motu case against LPG 33, 34
cylinder manufacturers, Case No. 3 of
2011 (CCI)
Indian Sugar Mills Association v. Indian 29
Jute Mills Association, Case No. 38 of
2011 (CCI).
Jagmohan Chhabra v. Unitech Ltd., Case 4
No. 21 of 2012 (CCI).
Jasper Infotech v. KAFF Appliances, 2019 24
SCC OnLine CCI 2.
Kapoor Glass (India) Private Limited v. 14
Schott Glass India Private Limited, Case
No. 22 of 2010 (CCI).
Kerala Film Exhibitors Association v. CCI, 22
Appeal No. 100 of 2015, (COMPAT).
Lodestar Slotted Angles Ltd. v. CCI, 32
[2011] Comp AT 225.
ESYS Information Technologies (P) Ltd. v. 6
Intel Corporation (Intel Inc.), Intel
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Semiconductor Ltd. and Intel Technology

India (P) Ltd., 2014 CompLR 126 (CCI).
Gujarat State Electricity Corporation Ltd. 7
v. South Eastern Coalfields Ltd., 2013
CompLR 910 (CCI).
Metalrod Ltd., Ghaziabad v. Religare 19
Finvest Ltd., 2011 SCC OnLine CCI 28.
Swastik Stevedores (P) Ltd. v. Dumper 6
Owner's Association, Case No. 42 of 2012
(CCI).
Mohit Manglani v. M/s Flipkart India (P) 23
Ltd., Case No. 80 of 2014 (CCI).
National Insurance Companies Ltd. & Ors. 4
v. Competition Commission of India,
2017 CompLR 1 (COMPAT).
R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 18
716 : AIR 1986 SC 2045 (India).
RRTA v. W.H. Smith and Sons Ltd, 20
(1969) LR 7 RP 122.
Schott Glass India (P) Ltd. v. Competition 8
Commission of India and M/s Kapoor
Glass (P) Ltd., 2014 CompLR 295
(COMPAT)
Shamsher Kataria v. Honda siel, Case No. 6
03 of 2011 (CCI).
Shri Ghanshyam Dass Vij v. Bajaj Corp. 22
Ltd., Case No. 68 of 2013, (COMPAT).
Sodhi Transport Co. v. State of Uttar 19
Pradesh, (1986) 2 SCC 486 : AIR 1986
SC 1099 (India)
Subhas Chanda v. Ganga Prasad AIR 33
1967 SC 878.
Technip S A v. S M S Holding Pvt. Ltd., 17
(2005) 5 SCC 465.
The National Stock Exchange of India Ltd. 6, 8, 35
v. Competition Commission of India,
2014 CompLR 304 (COMPAT).
Three D Integrated Solutions Ltd. v. 16
VeriFone India Sales (P) Ltd., 2015
CompLR 464 (CCI).
Union of India v. Hindustan Development 35
Corporation, (1993) 1 SCC 467.
V.S. Krishna and Ors. v. Westfort Hi-Tech 5
Hospital, 2007 76 SCL 301 CLB.
Varca Druggist & Chemist & Ors. v. 21
Chemists & Druggists Association, Goa,
(2012) CompLR 838 (CCI).
EUROPEAN UNION CASES PAGE NO.

Ahlstrom oy v. Commission, (1993) ECR 32
I-130
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Cases 56/64 and 58/64, Etalissements 5

Consten S.a.R.L. and Grundig-Verkaufs-
GmbH v. Commission of the European
Economic Community [1966] ECR 299.
C-287/95 and 288/95, P Commission v. 10
Solvay, [2000] ECR I-2391.
Case 109/75, National Carbonizing v. 9
Commission, [1975] ECR 1193.
Case 27/76, United Brands and United 9
Brands Continentaal v. Commission,
[1978] ECR 207.
Case C-23/14, Post Denmark A/S v. 11, 12, 35
Konkurrencerådet, ECLI : EU : C : 2015 :
651.
Case C-436/97, P Deutsche Bahn v. 10
Commission, [1999] ECR I-2387.
Case C-62/86, AKZO Chemie BV v. 11
Commission of European Communities,
ECLI : EU : C : 1991 : 286
Case C-89/85, Ahlstrom Osakeyhtio v. 35
Commission, ECLI : EU : 1994 : 12.
Case C-95/04P, British Airways Plc v. 8
Commission of the European
Communities, ECLI : EU : C : 2007 :
166.
Case T-11/89, Shell International 5
Chemical Company Ltd v. Commission of
the European Communities, [1992] ECR
II-757.
Case T-201/04, Microsoft Corporation v. 12, 13
Commission, [2007] ECR II-3601.
Case T-208/01, Volkswagen AG II v. 17
Commission, (2003) 2 ECR 5141
Case T-271/03, Deutsche Telekom v. 9
Commission, [2008] ECR II-477.
Case T-340/03, France Télécom SA v. 7
Communities, ECLI : EU : T : 2007 : 22,
¶ 100.
Case T-340/03, France Télécom SA v. 11
Communities, ECLI : EU : T : 2007 : 22.
Case T-340/03, France Telecom SA v. 2, 3
Commission, [2009] 4 CMLR 25, ¶ 81.
Case-T-340/03, France Telecom Sa v. 13
Commission, [2009] 4 C.M.L.R. 25
Case T-83/91, Tetra Pak II v. Commission 11, 12
of European Communities, ECLI : EU : T :
1994 : 246.
CFI T-9/99, HFB Holdings fur 5
Fernwarmetechnik
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Beteiligungsgesellsschaft GmbH & Co KG

v. Commission of the European
Communities, [2002] ECR II-1487.
Commercial Solvents v. Commission, 7
[1974] ECR 223.
Gorden v. Lewiston hospital, 423 F 4d 25
184 (3d Cir. 2005).
Hilti v. Commission [1991] ECR II-1439, 7
¶ 90, 91 and 92.
In Re, British Sugar plc v. Commission of 18
the European Communities, OJ 4 CMLR
1316; T-202/98, Tate & Lyle and Ors. v.
Commission, [2001] 5 CMLR 859.
UNITED STATES CASES PAGE NO.

Brooke Group Ltd. v. Brown & Williamson 34
Tobacco Corp., 509 US 209, 227 (1993)
Brooke Group Ltd. v. Brown & Williamson 34
Tobacco Corp., 509 US 209, 227 (1993).
Fishman v. Estate of Wirthz, 807 F.2d 14
520, 536 (9th Cir. 1986).
Interstate Circuit v. United States, 306 30
US 208 (1939).
Matsushita Elec. Industrial Co. v. Zenith 35
Radio Corp., 475 US 574 (1986).
United Shoe Machinery Corp. v. United 27
States, 347 US 521 (1954).
United States of America v. James P. 18
Heffernan, No. 94-1080, US Court of
Appeals, Seventh Cir., 43 F.3d 1144.
United States v. Davis & Company, 164 30
F. Supp. 827 (D.D.C. 1958).
United States v. General Motors, 323 US 18
373 (1945).
OTHER FOREIGN CASES PAGE NO.

Top Performance Motors Ltd v. Ira Berk 17
(Queensland) Pty Ltd., (1975) 24 FLR
286 (Austl.)
GUIDELINES, REPORTS AND REGULATIONS PAGE NO.

Consolidated Version of the Treaty on 26
European Union art. 101(1),
(2010/C83/01).
Guidance on the Commission's 7
Enforcement Priorities in Applying Article
82 of the EC Treaty to Abusive
Exclusionary Conduct by Dominant
Undertaking, (2009/C45/02), ¶ 18.
Guidance on the Commission's 15
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Enforcement Priorities in applying Article

82 of the EC Treaty to Abusive
Exclusionary Conduct by Dominant
Undertakings, (2009/C45/02), ¶ 15.
Guidelines on the Applicability of Article 33
101 of The Treaty on The Functioning of
the European Union to Horizontal Co-
operation Agreements, (2011/C11/01), ¶
86
91
97.
Notice on Activities of Trade Associations 31
and Compliance with Competition Law,
(N/09/002/2009), ¶ 4.36.
Raghavan Committee Report, Report of 30
High-Level Committee on Competition
Policy Law, ¶ 4.3-
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1 S.M. DUGAR, GUIDE TO COMPETITION LAW 1, 2, 4, 13, 15, 19, 20, 24, 28, 34,
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ABIR ROY, COMPETITION LAW IN I NDIA : A 2, 6, 8, 20
PRACTICAL GUIDE (2nd ed. 2016).
FRANK WIJICKMANS, VERTICAL AGREEMENTS IN 24
EU COMPETITION LAW (Filip Tuytschaever
et. al., 2nd ed. 2012).
JONATHAN FAULL & ALI NIKPAY, THE EU LAW 2, 8, 16
OF COMPETITION (3rd ed. 2014).
PETER W. ANDREWS & FRANK A. FRIDAY, 23
FAIR TRADE, RESALE PRICE MAINTENANCE RE-
EXAMINED (1960).
RICHARD WHISH, COMPETITION LAW (David 19, 32, 36
Bailey, 8th ed. 2017).
JOURNALS AND ARTICLES PAGE NO.

Albertina Albors-Llorens, Refusal to Deal 15
and Objective Justification in EC
Competition Law, 65 CLJ 24, 24-27
(2006).
Ben Klopack & Nicola Pierri, Vertical 25
contracting and price parity agreements :
evidence from hotels in Europe (2016)
Christopher R. Leslie, Predatory Pricing 11
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1710 (2013).
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Findings and Observations (2020)
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and-Spoke Cartels Operate? Lessons from
Nine Case Studies (2018), available at
http://dx.doi.org/10.2139/ssrn.3238244.
Latham & Walkins, Antitrust and 26
Competition Practice (2015)
Mark Rysman, The Economics of Two- 2
Sided Markets, 23, JEP 125, 128-129
(2009).
Nicolas Sahuguet & Alexis Walckiers, 29
Selling to a cartel of retailers : a model of
hub-and-spoke collusion, 4, CEPR
DISCUSSION PAPER 9385, 1, 1
OECD Hearing on APPAs, Platform 24
Parity/MFN clauses under competition law
(2015), available at
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20WincklerHearingAPPAsCC28Oct15.pdf.
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Exchange : The Constituent Elements of
Hub and Spoke Collusion, 7, EUROPEAN
COMPETITION JOURNAL 205, 211-12
(2011).
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Exchange : The Constituent Elements of
Hub and Spoke Collusion, 7, EUROPEAN
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Agreements : Precompetitive,
Anticompetitive, or Neutral, 27,
ANTITRUST MAGAZINE 45, 55-58
(2013).
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 §53B of the Competition Act, 2002.
§53B 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 §53A may prefer an appeal to the Appellate Tribunal.
(2) Every appeal under sub-§(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 Commission
is received by the Central Government or the State Government or a local authority
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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-§(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-§(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
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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
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 §53B 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]_________________
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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
The RESPONDENTS respectfully submit that the conduct of the amounts to abuse
within the meaning of §4 of the Act because, firstly, the FSAs operate in the relevant
market of provision of online food services aggregation in the State of Vormir which is
a two-sided market. Secondly, the FSAs constitute a single economic entity as they
fall within the ambit of group under Explanation (b) of §5 of the Act because of the
control over the management or affairs of the FSAs by IronBank which has a board
seat in all the FSAs. Thirdly, the FSAs are dominant in the relevant market due to the
market share of 90% in the relevant market and unrestrained dependence of
consumers over their services. Fourthly, the conduct of the FSAs amount to both
exclusionary and exploitative abuse within the meaning of §4 of the Act. The FSAs
have priced their services below cost prices with an intent to drive competitors out of
the relevant market in violation of §4(2)(a)(ii) of the Act. The charge of differential
commissions by the FSAs on equivalent transactions from their partner restaurants in
comparison with cloud kitchens which are owned by them is violative §4(2)(a)(i) and
4(2)(c) of the Act. Moreover, the FSAs have leveraged their dominant position in the
relevant market in order to enter the conventional market of brick and mortar
restaurants which is objectively unjustified and violative of §4(2)(e) of the Act.
[ISSUE-I]
The RESPONDENTS respectfully submit that the FSAs have violated the provisions
of §3(3) read with §3(1) of the Act on account of two reasons, firstly, the conduct of
the FSAs amounts to cartelisation by way of horizontal agreement. The collusion on
part of the FSAs can be established by the fact that they identically operate in the
relevant market which is also evident from the nature of APPAs that the they have
entered into with their partner restaurants. Secondly, the conduct of the FSAs has
caused an AAEC in the relevant market of food services
in the geographical region of Vormir because of the barriers created in the market in
terms of competition and entry and driving existing competitors out of the market.
[ISSUE-II]
The RESPONDENTS respectfully submit that the APPAs entered into between the
FSAs and their partner restaurants violate the provisions of §3(4)(e) read with §3(1)
of the Act as firstly, the APPAs are in nature of RPM within the meaning of §3(4)(e) of
the Act, wherein the partner restaurants are provided with a stipulated price at which
they can sell their products on their own platforms or the platform of the other FSAs
and the partner restaurants lose the liberty of selling their product below the
stipulated price. Secondly, the APPA cause an AAEC in the relevant market as they
deter the entry of rival platforms in the relevant market and lead to foreclosure of
competition. [ISSUE-III]
The RESPONDENTS respectfully submit that a prima facie case against VAR and its
member restaurants under §3(3) read with §3(1) of the Act is not made out as firstly,
there in no existence of any agreement or understanding between the member
restaurants of VAR which is sine qua not for the purpose of violation of §3 of the Act.
Secondly, the allegation of price parallelism made out by the APPELLANTS against the
members of VAR as violative od §3 of the Act is also not a sound proposition of law as
price parallelism cannot be equated with price fixing which is impermissible by virtue
of §3 of the Act. Thirdly, the increase in prices of the products by the members of VAR
is parallel business behaviour which is objectively justified in light of huge losses
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which were incurred by the conventional restaurants due to the anti-competitive

activities of the FSAs in the food services sector. [ISSUE IV]
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
2. Accordingly, the RESPONDENTS respectfully submit before the conduct of the
APPELLANTS is in violation of §4 of the Act because of three reasons, first, the FSAs
operate in the relevant market of online food aggregation in the State of Vormir [A],
second, the FSAs collectively and/or individually are dominant in the relevant market
[B] and third, the FSAs have abused their dominant position in the Relevant Market
[C].
A. THAT THE FSAS OPERATE IN THE RELEVANT MARKET OF ONLINE FOOD AGGREGATION
SERVICES IN THE STATE OF VORMIR
3. It is submitted that for the purpose of determining the market power of an entity
or a group under §4 of the Act, it is essential to delineate the relevant market5 in
which the enterprise6 or group is operating.7
4. In the instant case, the APPELLANTS are operating in the relevant market of
‘provision of online food aggregation in the geographical region of Vormir, because
first, the relevant product market is an online food aggregation [1] and second, the
relevant geographical market is the State of Vormir [2].
1. The relevant product market is online food aggregation
5. It is humbly submitted that the relevant product market8 is determined after
taking the factors enunciated under §19(5) of the Act.9 Further, the substitutability10
of the product/service is a useful consideration while determining the relevant product
market.11
6. In the instant case, the relevant market in which the FSAs operate is ought to be
considered as the ‘provision of online food aggregation’,12 which is a two-sided
market13 and caters to both the restaurants who list their services and the consumers
who order food products, on the platform of the FSAs.14
2. The relevant geographic market is the State of Vormir
7. It is submitted that the relevant geographical market15 in the instant case, ought
to be taken as the entire geographical region of the State of Vormir.16 This is because,
as per the provisions of the Act, Relevant Geographic Market comprises the area in
which conditions of competition are distinctly homogeneous.17
8. Additionally, for the purpose of food service 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’.18
B. THAT THE FSAS ARE COLLECTIVELY AND/OR INDIVIDUALLY DOMINANT IN THE
RELEVANT MARKET
9. It is humbly submitted that dominance under §4 can be attributed to an
enterprise or a group19 of enterprises under §4 of the Act.20 Accordingly, it is
submitted that the APPELLANTS are dominant in the relevant market of online food
aggregation as first, the FSAs are collectively dominant within the meaning of §4 of
the Act [1], or second, alternatively, Trimato is dominant in the relevant market [2].
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1. The FSAs are collectively dominant within the meaning of §4 of the Act
10. Collective dominance21 is outside the purview of §4 of the Act i.e. only one
enterprise can be dominant in a given relevant market.22 However, dominance can be
collectively attributed to enterprises which constitute a group within the meaning of
§5 of the Act.23 Accordingly, it is submitted that the FSAs are dominant in the relevant
market as they constitute an S.E.E. [i] and they meet the criteria of dominance as
enshrined under §19(4) of the Act [ii].
(i) FSAs constitute an S.E.E.
11. It is humbly submitted that internationally accepted doctrine of single
economic entity has been accepted by the CCI in its decisional practice.24 Accordingly,
it is submitted that the enterprises that constitute an S.E.E. can be regarded as a
group for the purpose of §4 of the Act.25 Further, it is submitted that the APPELLANTS
constitute an S.E.E. as first, they constitute a group within the meaning of §5 of the
Act [a] and second, there is inseparability of economic interests of the FSAs [b].
a) FSAs constitute a group
12. It is submitted that in terms of the provisions of the Act, if an enterprise is in a
position to participate, directly or indirectly, in the management or affairs the other
enterprise or exercises 26% or more voting rights in the other enterprise, both the
enterprises would constitute a group.26 Most importantly, the requirement of de facto
control is essential for considering two enterprises as part of a common group.27
13. Furthermore, it is submitted that the board of directors in a company is
responsible for the management of affairs of the company28 and all strategic decisions
in relation to the business of the company are taken by the board of directors.29
14. Keeping in view the aforesaid, it is submitted that there is substantial control of
the IronBank over the management or affairs of the FSAs as it has shareholding of
15% in Trimato, 5% in Ziggy and 8% in NomRhino, with a board seat in each.30
b) There is inseparability of economic interests of the FSAs
15. Lack of competitive links and the presence of concurring entrepreneurial
interests is a useful indicator for considering two enterprises as a single economic
entity.31 Moreover, the presence of personal links such as sharing of directors or
executives and acting together among different legal persons as a single unit in a
relevant market is also considered while determining the nature of relationship that
two enterprises share.32
16. Accordingly, it is submitted that the FSAs are acting as a single unit in the
relevant market of online food aggregation because of uncanny resemblance in the
business strategy employed33 by them and assuming arguendo also because of
absence of any competitive links between them.
(ii) FSAs are jointly dominant in the relevant market
17. The indicators given under §19(4) of the Act are considered while attributing
dominance on an enterprise in a given relevant market under §4 of the Act.34
Accordingly, it is submitted that FSAs are dominant in the relevant market because of
three reasons first, the heavy market share of the FSAs [a], second, heavy
dependence of consumers on the services of FSAs [b] and third, absence of
countervailing buying power [c].
a) Market share, size and structure
18. It is submitted that market share is a useful indication of the market structure
and of the relevant importance of the other competitors active in the market.35
Additionally, market share of more than 50% gives a guidance that the enterprise is
dominant in the relevant market.36
19. Accordingly, it is submitted that the FSAs are dominant in the relevant market
as they have a market share of 90% in terms of orders in the online food aggregation
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market in Vormir37 and possess the ability to act independently of other competitors in
the relevant market.38
b) Heavy dependence of consumers on the services of FSAs
20. It is submitted that the protection of interests of consumers is one of the
objectives of the Act.39 Further, it is submitted that the dependence of consumers on
the operations of a dominant enterprise due to the non-availability of an input is an
important indicator for attributing dominance.40
21. Keeping in view the aforesaid, it is submitted that the consumers are heavily
dependent on the services of the FSAs, despite many problems41 in their services as
there is no effective substitute which is available in the relevant market and
accordingly, dominance can be attributed upon the FSAs in the relevant market.
c) Absence of countervailing buying power
22. It is humbly submitted that sufficient countervailing power can deter a
dominant enterprise from profitably increasing prices.42 Additionally, it ensures that an
enterprise with a high market share will not be able to act to an appreciable extent
independently of customers with sufficient buying power.43
23. Accordingly, it is submitted that the users of the services of the FSAs i.e. the
restaurants that advertise their products on the platform of the FSAs are individually
too small to countervail buying power and accordingly the FSAs can be termed
dominant in the relevant market of online food services aggregation.44
2. Alternatively, Trimato is individually dominant within the meaning of §4 of
the Act
24. In this vein, the RESPONDENTS respectfully submit that Trimato can be
individually termed dominant in the relevant market of online food services
aggregation because first, it has a substantial market share and position of strength
vis-à-vis its competitors [i] and second, due to the vertical integration, that it has
undergone [ii]
(i) Market Share and position of strength vis-à-vis its competitors
25. It is humbly submitted that market share of more than 50% gives a guidance
that the enterprise is dominant in the relevant market.45 It is humbly submitted that
Trimato has a market presence of 60% in terms of total orders which are placed in the
relevant market of online food services aggregation.46 Further, it has maintained the
same level of market presence for a substantial period47 i.e. since the last eleven
months.48
(ii) Vertical Integration
26. It is humbly submitted that vertical integration by an enterprise which leads to
margin squeeze49 is anti-competitive in nature and dominance can be attributed to an
enterprise on the basis of degree of vertical integration that it has undertaken.50
27. In the instant case, Trimato has undergone vertical integration by way of
acquiring controlling stakes in OBO51 and is charging differential rates of commission
from its partner restaurants in comparison to the restaurants owned by OBO and
accordingly dominance is attributable upon Trimato.52
C. ADDITIONALLY, THAT THE FSAS HAVE ABUSED THEIR DOMINANT POSITION IN THE
RELEVANT MARKET
28. It is humbly submitted that abuse of dominant position by an enterprise or a
group of enterprises by way of exclusionary or exploitative conduct53 is prohibited by
the §4 of the Act as it is detrimental to competition54 and consumer benefits.55
29. Accordingly, it is submitted that the FSAs have indulged in exclusionary as well
as exploitative conduct thereby abusing their dominant position in the relevant market
because of three reasons first, the FSAs have violated the terms of §4(1)(a) of the Act
which has led to denial of market access under §4(1)(c) of the Act [1], second, FSAs
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have indulged in technical development to the p-prejudice of consumers [2] and third,
the FSAs have used their dominant position by leveraging their position to enter into
another market [3].
1. The conduct of FSAs is in contravention of §4(2)(a) of the Act
30. It is humbly submitted that the FSAs have violated the provisions of §4(2)(a)
of the Act as they have indulged in discriminatory pricing policy which has led to
denial of market access under §4(2)(c) of the Act [i] and they are following a
predatory pricing policy [ii].
(i) Discriminatory pricing policy and denial of market access
31. It is humbly submitted that price discrimination is the practice of selling the
same product to different buyers at different prices, in circumstances where the price
differential is not justified by cost differences.56 It is submitted that such price
differentiation that places trading parties to equivalent transactions at competitive
disadvantage57 is categorised as abusive market conduct.58
32. Keeping in view the aforesaid, it is submitted that the FSAs are charging
differential commissions from their partner restaurants in comparison to the cloud
kitchens which are owned by OBO and Fabfood.59 Accordingly, it is submitted that the
conduct of FSAs is abusive in the context of §4(2)(a) of the Act which is leading to
denial of market access for the partner restaurants of the FSAs under §4(2)(c) of the
Act.60
(ii) Predatory pricing
33. It is humbly submitted that the pricing of a product below the costs which are
incurred by an enterprise for the purpose of production can be termed predatory in
nature if the price is below average variable costs.61
34. The instances wherein the price of the product/service is kept below average
total costs62 , the test of no commercial sense63 is applied and additionally the
predatory intent64 of the dominant enterprise has to be proven.65
35. In this vein, the RESPONDENTS submission that is three-fold, first, the FSAs
are providing their services below cost prices [a], second, the pricing policy makes no
commercial sense [b] and third, there is presence of predatory intent [c].
a) Pricing below cost prices
36. Assuming arguendo, it is submitted that the FSAs have priced their services
below the average variable costs incurred by them and accordingly, it can be
presumed66 that the FSAs have indulged in predatory pricing policy and there is no
requirement of proving the predatory intent.67
b) Test of no commercial sense and predatory intent
37. Alternatively, it is submitted that ‘no commercial sense’ test for prices below
costs is a test of intent68 and the modus operandi of the FSAs in in consonance of a
plan for eliminating competitors69 with an intention to eliminate competition in the
relevant market.
38. Moreover, the conduct of the FSAs also leads to the foreclosure of competition
in the neighbouring market70 of conventional food services wherein the partner
restaurants of the FSAs and the cloud kitchens owned by OBO and Fabfood operate.71
2. FSAs have indulged in technical development to the prejudice of consumers
under §4(2)(b)(ii) of the Act
39. It is humbly submitted that technical development to the prejudice of
consumers72 is abuse within the meaning of §4(2)(b)(ii) of the Act.73 In the instant
case, the FSAs have developed recommendation software on their online platforms
which recommend to the customers to order their food from certain specific
restaurants.74
40. Additionally, it is submitted that the algorithms of the software's which are
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developed by the FSAs are manipulated by them on the basis of the commercial
agreements which are entered into by the FSAs and other partner restaurants.75 In
light of the aforesaid, it is submitted that the FSAs have undertaken technical
development to the prejudice of consumers in the relevant market.76
3. The FSAs have used their dominant position in the relevant market by
leveraging its position to enter into another market
41. It is humbly submitted that the APPELLANTS have used their dominance in the
relevant market by leveraging its position to enter into another market and have
contravened §4(2)(e) of the Act as first, they have a dominant position in the relevant
market of ‘online food aggregation [i], second, the FSAs are operating in two separate
but interconnected markets [ii] and third, the conduct of FSAs is not objectively
justified [iii].
(i) FSAs are dominant in the relevant market of ‘online food services
aggregation’
42. It is humbly submitted that the FSAs have a dominant position in the market of
‘provision of online food aggregation’.77 The relevant product market comprises of
those products or services which are regarded as interchangeable or substitutable78 by
the consumers, by reason of characteristics of the product or services, their prices and
intended use.79
43. The dominant position of FSAs can be established by its high market share, size
and resources, the dependence of customers on the enterprise, the size of the
competitors and its economic power and commercial advantages enjoyed over its
competitors.80
(ii) FSAs are operating in two separate but interconnected markets
44. It is humbly submitted that there is a requirement of identifying two distinct
relevant markets81 where the dominant enterprise is operating and these two relevant
markets must also have an associational link82 , for the purpose of establishing abuse
under §4(2)(e).83
45. Keeping in view the aforesaid, it is submitted that the FSAs are operating in
two distinct relevant markets i.e. the ‘provision of online food aggregation in the State
of Vormir’ and the ‘provision of conventional food services in the State of Vormir’,
which are interconnected to one another as the services of one market acts as an input
for the another market.84
46. Accordingly, it is submitted that there is an associational link between the two
markets and the FSAs have entered the conventional market of food services by way of
M&A deals with quick services restaurants such as OBO and Fabfood,85 thereby
leveraging its dominant position in one relevant market to enter into another market.86
(iii) The conduct of FSAs is not objectively justified
47. It is humbly submitted that objective justification can be afforded by a
dominant enterprise in order to rebut the accusation of leveraging dominant position87
under §4(2)(e) of the Act.88 Moreover, the instances wherein there is a foreclosure of
competition in the downstream market the conduct of the dominant enterprise may
not be objectively justified.89
48. Further, a necessary condition for obtaining the effect that there is foreclosure
of competition in the downstream market is that the downstream competitor is unable
is otherwise unable to obtain the input at a cost that would allow it to continue
competing in the downstream market.90
49. Keeping in view the aforesaid and the charge of substantially higher
commissions from the partner restaurants by the FSAs in comparison to the cloud
kitchens owned by OBO and Fabfood,91 it is submitted that the conduct of APPELLANTS
is leading to foreclosure of competition in the downstream market and cannot be
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objectively justified.92
ISSUE II : - WHETHER THE FSAS VIOLATED THE PROVISION OF SECTIONS 3
(3) READ WITH §3(1) OF THE ACT?
50. Existence of an agreement, understanding or arrangement, demonstrating the
meeting of minds is a sine qua non for establishing contravention under §3 of Act.93
51. RESPONDENTS respectfully submit that the Appellants have violated the
provisions of §3(3) read with §3(1) of the Act because of two reasons, first, that the
FSAs have engaged in cartelisation [A] and second, that such agreement has caused
AAEC [B].
A. THE FSAS HAVE ENGAGED IN CARTELISATION
52. It is respectfully submitted before the Hon'ble Tribunal that the FSAs have
indulged in anti-competitive conduct because of three reasons, first, there exists an
anti-competitive agreement between the APPELLANTS [1], second, the circumstantial
evidence is sufficient to prove the existence of the anti-competitive agreement [2]
and third, the conduct of parties has caused AAEC [3].
1. There exists an anti-competitive agreement between the APPELLANTS
53. It is submitted that the word ‘agreement’ has a broad meaning and includes
any arrangement or understanding or action, in formal or writing, intended to be
enforceable by legal proceedings or not. Under the antitrust law policy of Vormir, an
agreement includes an arrangement or understanding, decision or concerted
practices.94 In addition, consensus ad idem is essential for the purpose of determining
the existence of an agreement.95
54. Even when parties to such an agreement or arrangement do not intent to create
any legally enforceable mutual duties and liabilities, it shall be considered as an
agreement under the Act,96 where the fact that the parties involved have expressed
their joint intention to conduct themselves in a market in a specific manner to
maintain particular state of affairs is sufficient.97
55. In the instant case, the all the APPELLANTS have entered into APPAs with their
partner restaurants which make it mandatory for the restaurants to quote the lowest
price at which they are willing to sell their product on the platform of the FSAs.98
Moreover, the restaurants can neither offer better terms or prices on the platforms of
any other FSA nor on their independent website.99 The effect of such an approach is
that an indirect horizontal agreement between the FSAs is facilitated because the
prices of the services is similar on all the platforms of the FSAs. Accordingly, it is
submitted that there is existence of an anti-competitive agreement between the
FSAs.100
2. Existence of circumstantial evidence
56. There is rarely distinctive or direct evidence in case of anti-competitive
agreements due to which the presence of circumstantial evidence is considered and
the benchmark for determining the presence of agreements in such cases is the
preponderance of probabilities.101
57. Parallel behaviour in price or sales is indicative of a coordinated behaviour
among participants in a market.102 If any of the elements of an arrangement or an
understanding or action in concert exists, it can be said that there was an
agreement.103 The firms often tend to justify the parallel behaviour in prices,
production, dispatch or supplies conduct in prices by explaining the fundamentals of
the market forces such as demand, increasing cost of production and other economic
factors.104
58. It is pertinent to note that the Commission in case of In Re Aluminium
Phosphide Tablets Manufacturers105 stated that identical pricing can be considered as
evidence leading to establish an illegal agreement.106 Circumstantial evidence is
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equated with the direct evidence for it is general rule that the law makes no distinction
between direct and circumstantial evidence in order to prove conspiracy. It is not
necessary for the government to present proof of verbal or written agreement.107 In
such matters, the meaning of “shall presume” or “per se”108 principle can be used
which states that in matters with reference to which they are used… and not laying
down a rule of conclusive proof.109 The court also observed that a presumption may not
be a conclusive proof in itself, but when a presumption is conclusive, it obviates the
production of any other evidence.110
59. Hereby, in the present matter, it has been stated that there is an absence of
evidence to suggest that the food service aggregators have communicated with each
other, but there was still a coordinated price reduction on partner restaurants on their
individual websites and physical outlets.111 According to the observations made by the
DG in his Report submitted for Reference Case No. 1 of 2020, there was price
coordination across all FSA platform. Which was regular, highly predictable and had a
signalling effect to all the market players.112
60. It is submitted that where entities or people are to combine together to keep
up prices, they would not shout it from the house tops, they keep it quiet and make
their arrangement covertly.113 In fact, no undertaking can justify price fixing by
claiming that it did not have a direct effect on prices paid by the customers.114
61. Furthermore, it can also be seen under the DG report that FSA entered into
unique arrangement where FSA's prevent all restaurant owners from offering better
terms, prices and other favourable deals on their websites and other channels in
comparison to the prices offered by FSAs115 This is an indication of the existence of an
agreement between the FSAs and restaurant owners concerned, which is a
circumstantial evidence of the existence of the same under Sec. 3(3) coming within
the scope of preponderance of probability.116
3. Agreement between the entities fall within the ambit of §3(3) read with §3
(1)
62. It is humbly submitted that horizontal agreements are often between the same
manufacturers or producers of goods or suppliers of same services and are presumed
to have caused AAEC.117 One of the three kinds of agreements identified as per se void
are agreements limiting or controlling production, supply, markets, technical
development, investment or provision of services.118 There is difficulty in establishing
the existence of a cartel these days due to the development of sophisticated
mechanics by firms for the purpose of hiding their anti-competitive behaviour so that
they can escape liability under the anti-trust laws.119
63. It is submitted that in the Tyre Cartel case120 one of the relevant factors used to
establish cartelization was underutilization of the capacity, charging of price, offer
product at lower price to limit supply etc. As mentioned above, FSAs in the given case
compelled their partner restaurants to price similarly on all FSAs platform and this was
reaffirmed by the CCV and the DG Report. In addition to simple agreements on what
price to charge, agreements to eliminate or establish discounts; removing products
offered at low prices from the market to limit supply and keep prices high etc. are also
considered to be anti-competitive agreements.121
64. In the instant case, Trimato, Ziggy, and NomRhino to ensure that the
restaurants don't charge anything below the MRP whilst selling at discount122 which
makes it evident that the entities entered into an anti-competitive agreement, as they
tried to limit the supply, production, and control the price of the same, thus making
them liable under Sec. 3(3) read with §3(1) of the Act.
B. THE CONDUCT OF APPELLANTS HAS CAUSED AAEC
65. It is humbly submitted that the expression ‘AAEC’ can be broken down into
three components i.e. it should affect competition within the territory; (2) affect
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should be appreciable, i.e. not minimal in nature; and (3) it should either actually
effect or is expected to affect competition.123
66. It is also submitted that market allocation not only reduces competition but
also deters otherwise efficient entities into the market and deprives the end-consumer
of wider choice which would have been available in the market.124 Creation of entry
barriers, competition foreclosure and non-accrual of consumer benefits are factors
enumerated under §19(3) of the Act to determine AAEC. Compelled to charge similarly
on all across platform, thereby causing inconvenience to the public at large and
leaving with no choice to the customers has been held to be a valid form of AAEC,125
which has happened here due to the APPAs entered into between the FSAs and their
partner restaurants.
ISSUE III : - WHETHER THE FSAS VIOLATED THE PROVISIONS OF §3(4)(E)
AND §3(3) READ WITH §3(1) BY WAY OF THEIR APPAS?
67. It is respectfully submitted that the FSAs have violated the provisions of §3(4)
(e) and §(3)(3) read with §3(1) of the Act as first, there is an explicit vertical
agreement in the manner of RPM between the FSAs and their partner restaurants [A],
second, the restraint imposed by parity agreements cause AAEC [B] and third, the
APPAs between the FSAs and partner restaurants enables a horizontal collusion by way
of a hub and spoke cartel [C].
A. There is an Explicit Vertical Agreement in the Manner of Resale Price
Management Between the Fsa Sand the Restaurants
68. In this vein, the submission of the RESPONDENTS is two-fold, first, that the
agreement between the FSAs and their partner restaurants is a RPM model under §3
(4)(e) of the Act126 [1] and second, the APPAs are considered anti-competitive in
various antitrust jurisdiction [2].
1. APPAs fall within the ambit of §3(4)(e) of the Act
69. Respondents respectfully submit that the APPAs fall within the ambit of §3(3)
(e) of the Act as first, the food sold through the platform of FSAs and at the outlets of
the restaurants are stipulated at the same price [i] and second, the APPAs between
the FSAs and their partner restaurants do not allow the restaurants to sell the food at
a price less than the stipulated price, under any circumstances [ii].
(i) The food sold is at a stipulated price
70. The intention of the legislature while enacting §3127 of the Act was to curb
certain agreements.128 RPM which is a method of price-fixing129 in nature of a vertical
agreement130 is also accordingly put in the category of agreements which are
considered to be anti-competitive in nature, under §3 of the Act. Further, the presence
of an agreement131 is sine qua non for a violation of §3132 of the Act.
71. In view of the aforesaid, it is submitted that there is an explicit agreement
between the FSAs and their partner restaurants which is prima facie anti-competitive
in its spirit as it explicitly bars the restaurants owners to offer better terms, prices and
other favorable deals to their prospective customers133 and compels them to price their
products similarly across all FSA platforms.134
72. Moreover, the sale through online channel can cause RPM and the FSAs are
engaging in sales through online channels.135 Accordingly, it can be presumed that the
APPAs entered into between the FSAs and their partner restaurants also facilitate RPM
in absence of proper safeguards to ensure the competition compliance. It is humbly
submitted that APPAs are an indirect method to achieve RPM.136
73. It is submitted that the RPM achieved through indirect means is equally
forbidden under various competition law regimes.137 Moreover, some of the countries
have completely banned RPM.138 The APPA between the FSAs and their partner
restaurants also forms a classical indirect RPM model139 mandating the restaurants not
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to charge more than what they do on the FSAs platform.140 Accordingly, it is submitted
that the APPAs entered into between the FSAs and their partner restaurants are liable
to be set aside in view of §3 of the Act.141
(ii) The restaurants cannot charge below the stipulated price mandated by
APPAs
74. It is submitted that the rationale of competition law is based on the rule of
reason142 and RPM is also accordingly not per se illegal in nature.143 Additionally, an
agreement which allows to charge less than the stipulated price is not RPM.144
75. However, the APPSs between FSAs and their partner restaurants give no scope
to the restaurants to charge less then what is quoted to the FSAs,145 leading to the
increase in prices of the food items even when they can be charged at a less rate at
the brick and mortar outlets setting aside the commission which is 15-20 percent146
which the restaurants do not pay at their own websites and outlets, leading to the
destruction of offline market.147
2. APPAs are wide parity agreements and treated as anti-competitive in
various antitrust jurisdictions
76. It is humbly submitted that APPAs fall within the grey area of Vormirian
competition law148 . But inference can be drawn from the report published by CCI on e-
commerce149 which acknowledges that parity agreements can be examined under the
ambit of §3 of the Act.150 Further, submitted that the APPAs are essentially a
subsidiary of the internationally debated MFN clauses,151 that impose an anti-
competitive vertical restraint upon the restaurants.
77. It is submitted that parity agreement in the EU competition law, as interpreted
by the German Federal Cartel Office is a violation of §1 of the German Act Against
Restraints of
Competition152 and Article 101 (1) TFEU,153 as being restrictive of competition.154
Furthermore, it is submitted that the Swedish competition authority also accepts that
parity agreements are per se anti-competitive in nature155 and in contradiction with
the TFEU.156 Additionally, France has also barred the parity agreements by way of
legislation.157 Accordingly, it is submitted that the APPAs between the FSAs and their
partner restaurants are liable to be treated in the same manner as treated across
various antitrust jurisdictions and considered as violative of §3 of the Act.
B. THE RESTRAINT IMPOSED BY THE APPAS CAUSE AN AAEC IN THE RELEVANT MARKET
78. It is humbly submitted that the APPAs cause an AAEC in the relevant market of
provision of food services in the State of Vormir as they deter the entry of rival
platforms in the relevant market [1] and they are detrimental to scientific and
technological development [2].
1. Deter the entry of rival platforms in the relevant market
79. It is humbly submitted that parity agreements make it nearly impossible for
the new entrants to the market access as FSAs mandatorily make the restaurants to
sign the APPAs [i], they bar the restaurants to offer better deals to FSAs charging less
commissions [ii] and the deep discounts distort the conventional brick and mortar
outlets of food services [iii].
(i) FSAs are mandatory in nature and distort competition
80. It is humbly submitted that healthy competition is necessary for any growing
economy.158 The relevant market in the present case is the online market of food
aggregation.159 It is submitted that competition does not happen in a vacuum, it
happens in a market, and FSAs hold 90% of the online market of food aggregation.160
It is further submitted that due to the control over the online market the restaurants
have no choice but to adhere to the demands of the dominant FSA's.
81. It is further submitted that mandating something to be sold at a price has been
-----------------------------------------------------------------------------------------------------------------------------------------------------------
held to be illegal by the Federal Cartel office.161 The agreement is itself against the
spirit of competition as it does not allow the restaurants to sell their own items at
lower prices and also charge hefty commissions162 in discrimination of their self-owned
cloud kitchens.163
(ii) The APPAs bar the restaurants to offer better terms to FSAs charging less
commissions
82. It is humbly submitted that the practical problem which arises out of such
parity agreement is that it does not allow the restaurants to lower their supply cost164
to other FSAs who are willing to enter the market and charge less commission to the
restaurants, destroying possible substitutes to the present FSAs.
83. Additionally, the substitutes for FSAs are very vital for the consumers of Vormir
as the consumers are themselves not happy with the practices of the FSAs165 but they
are dependent upon the FSAs for their services as they do not have any alternative in
the food delivery market as FSAs hold 90% of the market share.166 Moreover, FSAs
have sufficient market strength167 and hence the APPAs are capable of distorting the
competition and accordingly invalid by virtue of provisions of the Act.168
(iii) Deep discounts along with APPAs also distort competition in the
conventional market of food services
84. It is humbly submitted that, the FSAs have been giving deep discounts to their
consumers169 which is the on the prices quoted by the restaurants and hence, the
consumer eventually receives the product well below the price agreed by the
restaurants to be showcased on the FSAs platform leading to predatory pricing,170
which also leads to a diversion of the consumers171 from the offline food market to the
online food market. Accordingly, the competition in the conventional market of food
services i.e. the market of physical restaurants is also distorted.
2. The parity agreement is detrimental to the promotion of technical scientific
and economic development
85. It is submitted that the partner restaurants of the FSAs are subject to the
terms provided by the FSAs172 and even if a restaurant develops a technology which
curb prices, it will not be able to implement it because of the APPAs which is
detrimental to competition.173
86. Assuming arguendo, it is submitted that the fact that the restaurant owners
were forced to price all products equally on all platform174 decreases their incentive to
work, as the effective control of the prices is in the hands of the FSAs.
C. The Parity Agreements Between the Fsas and the Restaurants Enables a
Horizontal Collusion Leading to Higher Prices Forming a Hub and Spoke Cartel
87. It is humbly submitted that cartelization is the biggest threat to
competition.175 A hub and spoke involves competitors and common suppliers.176 In
the instant case, the APPAs mandated by the FSAs have led to a neo-hub and spoke
model under the aegis of parity agreements. Furthermore, it is submitted that if one
FSA or a restaurant wishes to increase the price of its services the price of the said
service will be increased across all platforms equally distorting competition between
the FSAs.177
88. It is submitted that the hub and spoke model is a doctrine of U.S Anti-Trust178
where there is no direct communication.179 In the present matter, the FSAs do not
communicate directly but due to their parity agreements, the prices cannot be
differentiated by the restaurants owners.180 This has clearly led to price fixation which
a violation of competition law181 as it indirectly leads to a horizontal agreement
between competitors and hence the approach taken by CCV182 by in fining the FSAs is
legally sound.183
89. Keeping in view the aforesaid, it submitted that with the help of the parity
-----------------------------------------------------------------------------------------------------------------------------------------------------------
agreements the FSAs are able to keep their prices uniform without losing market
presence to other FSAs. However, the restaurants who are not the part of the FSAs i.e.
Trimato, Ziggy and NomRhino because of these agreements have to suffer loses184 in
order to keep their prices comparable to the FSAs. It is submitted that the
aforementioned practices of the FSAs are leading to distortion of competition, thereby,
causing an AAEC in the relevant market. Accordingly, it is submitted that the said
APPAs fall within the meaning of §3(1) read with §3(3) of the Act and invalid as anti-
competitive in nature.
ISSUE IV : - WHETHER VAR, ALONG WITH ITS MEMBER RESTAURANTS,
VIOLATED THE PROVISIONS OF §3(3) READ WITH §3 (1) OF THE ACT?
90. It is humbly submitted that VAR along with its members restaurant has not
violated the provisions of §3(3) read with §3(1) by the way of a hub and spoke cartel
because firstly there is not existence of a collusion and secondly there is no conspiracy
to fix prices.
A. VAR IS NOT FELICITATING A COLLUSION BETWEEN ITS MEMBER RESTAURANTS
91. It is humbly submitted that, firstly there is an absence of agreement amongst
the members of VAR either explicit or tacit and secondly the fact that there has been
an exchange of information cannot be construed as collusion.
1. There is no agreement either express or tacit.
92. It is submitted that VAR is an association which is formed for the welfare of the
restaurants across Vormir like any other associations who have the objective of
welfare.185 The fact the FSAs have abused their market power and dominated the
restaurants and led the VAR to stand against the FSA's. collusion can happen only
when there is an agreement.186 However it is submitted that, there are no facts to
conclude that VAR felicitated collusion.
93. It is submitted that for a hub and spoke to be functional there should be a hub
to facilitate collusion.187 However, VAR is not a hub in this case, as it is a mere
association of restaurants and there is no tacit consent188 on their part which is
necessary to conclude collusion. The object of collusion is to restrict competition.189
However, there are facts to show that there has been any sort of distortion of
competition. It is further submitted that the maximum access to the market to a
player in VAR is only 10% and therefore it plausible to conclude that there is free
market and absence of collusion.190
2. The mere fact of exchange of information does not lead to collusion
94. The exchange of information cannot essentially be treated as a conclusive proof
of collusion.191 In fact, in some instances the exchange of information may be highly
beneficial for competition in the market.192 Further, it is submitted that information
exchange is a common feature of many competitive markets that generate various
types of efficiency gains.193 The fact that that no evidence of collusion can be inferred
hence, no case in contravention of §3(1) read with 3(3)(a) of the act against VAR
should be made out.194
95. Furthermore, collusion is an agreement or a secret agreement for an illegal
act.195 Assuming arguendo, the only factor might indicate collusion is the increase in
prices of the VAR restaurants however it will still not be per se held to be collusion.196
It is submitted that the fact that the information was regarding, prices and services197
is available to everyone, and hence is not a relevant factor be considered.
96. Additionally, it is submitted that the frequency of exchange of information is a
relevant factor while determining collusion198 In the instant case, the meeting
amongst the VAR members were merely bi-annual.199
97. Moreover, the allegations of the FSAs regarding sharing of confidential and
sensitive information200 are vague as they do not specify what exactly the information
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is lack of proof & evidence of collusion does not create any competition concerns.201
B. THERE IS NO CONSPIRACY BETWEEN VAR AND ITS MEMBER RESTAURANTS TO FIX
PRICES
98. RESPONDENTS respectfully submit that there was no prima facie case of
conspiracy between the VAR and its member restaurants was made out because of two
reasons, first, price parallelism is not a conclusive evidence of fixing of prices and
second, the increment of prices by VAR can be objectively justified.
1. Price parallelism does not amount to price fixing
99. Price fixing is one of the most pernicious violations of competition law202 and is
barred by the mandate of §3 of the Act.203 However, the CCV holistically analyse the
relevant market in order to conclude that there is indeed the presence of collusion by
way of price fixing, thereby also taking the relevant market and its structure into
consideration.204 Moreover, the reasons for substantial increase or decrease in prices of
the product/service in the market are also considered.205
100. Accordingly, it is submitted that the increase in the prices by the VAR
restaurants was primarily because of the practices of the FSAs and their abuse of
dominance,206 by way of charging differential prices for identical transaction.207
Furthermore, the profit margin of the member restaurants of VAR war also getting low
because of the exploitative market practices of the dominant FSAs and therefore, the
increase in prices was necessary.
101. RESPONDENTS submit that specific circumstances are considered as a
plausible explanation to price parallelism.208 Mere common increase or decrease in
prices cannot amount to cartelization.209 Moreover, to conclude that there is indeed
collusion by the way of price parallelism, it has to be proven that there is no
reasonable explanation for the increase or decrease in the prices.210
102. Keeping in view the aforesaid, it is submitted that the allegation of the FSAs
that the increase in prices led to price parallelism211 and accordingly violative of §3(3)
read with §3(1) is not a sound proposition of law as the increase in prices was largely
because of market watch212 and there is no prima facie plausible evidence that indicate
the presence of an agreement.
2. The increase in prices of VAR restaurants is justified
103. In this vein, the RESPONDENTS submit that the costs of input contributed led
to the increase in prices and the same be objectively justified213 by the fact that the
FSA's were offering deep discounts214 and hefty commissions were charged from the
partner restaurants by the FSAs which had led to heavy losses to the conventional
restaurants as the consumers started to order through the FSAs on which the
restaurants paid commissions.215
104. Additionally, it is submitted that the more the information, the VAR members
have about market conditions the more it leads to better efficiency and productions.216
This exchange of information also complements to the factors which reduce AAEC
under §19(3)(e)217 as it felicitate production and services by way of information
exchange. It is further submitted that the exchange of information will also result in
gaining customers and locking them in by providing better services received through
the exchange of information.218
105. In light of the aforesaid, it is submitted that the prima facie proof of existence
of an agreement cannot be established in the present matter and the increase in the
prices of the products and services by the VAR member restaurants was largely
because of the market situation that had arisen due to the exploitative and
exclusionary market practices of the FSAs and accordingly it ought not to be inferred
that VAR and its member restaurants have violate the provisions of §3(3) read with §3
(1) od the Act.
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PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited,
the Counsel of the Respondents most humbly and respectfully pray that this Hon'ble
Tribunal may be pleased to:
1. Dismiss the appeal filed by the FSAs from final order of the CCV in Case No. 01
of 2020;
2. Dismiss the appeal filed by FSAs from order of the CCV in Case No. 02 of 2020.
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 Respondents 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 T O COMPETITION LAW 423 (Arijit Pasayat et al. eds., 6th ed. 2016) [for brevity ‘SM
Dugar’].
5 Competition Act, supra note 2, §2(h).
6 Competition Act, supra note 2, §2(r).
7
1 S.M. DUGAR , GUIDE T O COMPETITION LAW 423 (Arijit Pasayat et al. eds., 6th ed. 2016).
8 Competition Act, supra note 2, §2(t).
9 ABIR RO Y , COMPETITION LAW IN INDIA : A PRACTICAL GUIDE 158 (2nd ed. 2016).
10 Case T-340/03, France Telecom SA v. Commission, [2009] 4 CMLR 25, ¶81.
11
JONATHAN F AULL & ALI NIKPAY , T HE EU LAW OF COMPETITION 48 ¶1.148, (3rd ed. 2014).
12See : All India Online Vendors Association v. Flipkart India (P) Ltd., Case No. 20 of 2018 (CCI), ¶26; See also :
Case No IV/M.1407; Bertelsmann/Mondadori; Case COMP/M.4731, Google/DoubleClick, ¶44.
13
Mark Rysman, The Economics of Two-Sided Markets, 23, JEP 125, 128-129 (2009).
14 See : Moot Proposition, ¶2.

15 Competition Act, supra note 2, §2(s).
16 All India Online Vendors Association v. Flipkart India (P) Ltd., Case No. 20 of 2018 (CCI), ¶26.
17 Case T-340/03, France Telecom SA v. Commission, [2009] 4 CMLR 25, ¶81.
18
See : Moot Proposition, ¶2.
19 Competition Act, supra note 2, §5, Explanation (b).
20Arshiya Rail Infrastructure Limited (ARIL) v. Ministry of Railways (MoR) through the Chairman, Railway Board
and Container Corporation of India Limited (CONCOR), [2013] 112 CLA 297 (CCI).
21Consumer Online Foundation v. Tata Sky Limited, Dish TV India Limited, Reliance Big TV Ltd. and Sun Direct
TV Pvt. Ltd., Case No. 2 of 2009 (CCI); See also : Dish TV India Limited v. Hathway Cable & Datacom Limited,
Case No. 78 of 2013 (CCI).
22 Jagmohan Chhabra v. Unitech Ltd., Case No. 21 of 2012 (CCI).
23 National Insurance Companies Ltd. v. Competition Commission of India, 2017 CompLR 1 (COMPAT).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
24 Exclusive Motors (P) Ltd. v. Automobili Lamborghini S.P.A., Case No. 52 of 2012 (CCI).
25 1 S.M. DUGAR , GUIDE T O COMPETITION LAW 422 (Arijit Pasayat et al. eds., 6th ed. 2016).
26Arshiya Rail Infrastructure Limited (ARIL) v. Ministry of Railways (MoR) through the Chairman, Railway Board
and Container Corporation of India Limited (CONCOR), [2013] 112 CLA 297 (CCI).
27 American Needle, Inc. v. National Football League, (2010) 130 S.Ct. 2206; Cases 56/64 and 58/64,
Etalissements Consten S.a.R.L. and Grundig-Verkaufs-GmbH v. Commission of the European Economic
Community [1966] ECR 299.
28 §179, The Companies Act, Act 18 of 2013, INDIA CODE (2013).
29 See : V.S. Krishna v. Westfort Hi-Tech Hospital, 2007 76 SCL 301 CLB.
30CFI T-9/99, HFB Holdings fur Fernwarmetechnik Beteiligungsgesellsschaft GmbH & Co KG v. Commission of the
European Communities, [2002] ECR II-1487.
31Case T-11/89, Shell International Chemical Company Ltd v. Commission of the European Communities [1992]
ECR II-757.
32 Shamsher Kataria v. Honda siel, Case No. 03 of 2011 (CCI).

33 Swastik Stevedores (P) Ltd. v. Dumper Owner's Association, Case No. 42 of 2012 (CCI).
34 The National Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304 (COMPAT).
35ESYS Information Technologies (P) Ltd. v. Intel Corporation (Intel Inc.), Intel Semiconductor Ltd. and Intel
Technology India (P) Ltd., 2014 CompLR 126 (CCI).
36 ABIR ROY, COMPETITION LAW IN INDIA : A PRACTICAL GUIDE 168 (2nd ed. 2016).
37 Hilti v. Commission [1991] ECR II-1439, ¶90, 91 and 92.
38
See : Case T-340/03, France TÉlÉcom SA v. Commission of the European Communities, ECLI : EU : T : 2007 :
22, ¶100.
39
Gujarat State Electricity Corporation Ltd. v. South Eastern Coalfields Ltd., 2013 CompLR 910 (CCI).
40 Commercial Solvents v. Commission, [1974] ECR 223.
41 Moot Proposition, ¶5.

42Guidance on the Commission's Enforcement Priorities in Applying Article 82 of the EC Treaty to Abusive
Exclusionary Conduct by Dominant Undertaking, (2009/C45/02), ¶18.
43Schott Glass India (P) Ltd. v. Competition Commission of India and Kapoor Glass (P) Ltd., 2014 CompLR 295
(COMPAT)
44
The National Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304 (COMPAT).
45
ABIR ROY, COMPETITION LAW IN INDIA : A PRACTICAL GUIDE 168 (2nd ed. 2016).
46 Moot Proposition, ¶7(a).
47 HT Media Ltd. v. Super Cassettes Industries Ltd., 2015 CompLR 431 (CCI); See also : Case C-95/04P, British
Airways Plc v. Commission of the European Communities, ECLI : EU : C : 2007 : 166.
49
Case 109/75, National Carbonizing v. Commission, [1975] ECR 1193.
50Belaire Owners' Association v. DLF Limited Haryana Urban Development Authority Department of Town and
Country Planning, State of Haryana, [2011] 104 CLA 398 (CCI).
51 Moot Proposition, ¶7(b).
52 Moot Proposition, ¶7(c).
53
Case 27/76, United Brands and United Brands Continentaal v. Commission, [1978] ECR 207.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
54 Case T-271/03, Deutsche Telekom v. Commission, [2008] ECR II-477.

55 See : Competition Act, supra note 2, §18.
56
JONATHAN FAULL & ALI NIKPAY, THE EU LAW OF COMPETITION 48 ¶1.148, (3rd ed. 2014).
57 C-287/95 and 288/95, P Commission v. Solvay, [2000] ECR I-2391.
58 Case C-436/97, P Deutsche Bahn v. Commission, [1999] ECR I-2387.
59
Moot Proposition, ¶7(c).
60See : Fast Way Transmission (P) Ltd. v. Kansan News (P) Ltd. and Competition Commission on India, 2014
CompLR 59 (COMPAT).
61 Case C-62/86, AKZO Chemie BV v. Commission of European Communities, ECLI : EU : C : 1991 : 286; See
also : Case T-83/91, Tetra Pak II v. Commission of European Communities, ECLI : EU : T : 1994 : 246.
62
Case T-340/03, France TÉlÉcom SA v. Commission of the European Communities, ECLI : EU : T : 2007 : 22.
63 Christopher R. Leslie, Predatory Pricing and Recoupment, 113 CLR 1695, 1708-1710 (2013).
64 Gregory Gundlach, Predatory Practices in Competitive Interaction : Legal Limits and Antitrust Considerations,
9, Journal of Public Policy and Marketing 129, 136-137 (1990).
65
Case C-23/14, Post Denmark A/S v. KonkurrencerÅdet, ECLI : EU : C : 2015 : 651.
66Case T-83/91, Tetra Pak II v. Commission of European Communities, ECLI : EU : T : 1994 : 246; See also :
Case C-62/86, AKZO Chemie BV v. Commission of European Communities, ECLI : EU : C : 1991 : 286.
67 Case C-23/14, Post Denmark A/S v. KonkurrencerÅdet, ECLI : EU : C : 2015 : 651.
68
JONATHAN FAULL & ALI NIKPAY, THE EU LAW OF COMPETITION 48 ¶1.148, (3rd ed. 2014).
69 See : List of Clarifications, No. 22 at pg. no. 5.
70 Case T-83/91, Tetra Pak II v. Commission of European Communities, ECLI : EU : T : 1994 : 246.
71
72 Case T-201/04, Microsoft Corporation v. Commission, [2007] ECR II-3601.
73 Atos Worldline India Pvt. Ltd. v. Verifone India Sales Pvt. Ltd., 2015 CompLR 327 (CCI).
74
Moot Proposition, ¶7(d).
75 List of Clarifications, No. 34 at pg. no. 8.
76 Case T-201/04, Microsoft Corporation v. Commission, [2007] ECR II-3601.
77
Competition Act, supra note 2, §2(t).
78
Case-T-340/03, France Telecom Sa v. Commission, [2009] 4 C.M.L.R. 25; see also 1 S.M. DUGAR, GUIDE TO
COMPETITION LAW 439 (Arijit Pasayat et al. eds., 6th ed. 2016).
79 MCX Stock Exchange Limited v. National Stock Exchange of India Ltd., Case No. 13 of 2009 (CCI) ¶10.11.
80
Competition Act, supra note 2, §19(4).
81 Competition Act, supra note 2, §4(2)(e).
82 MCX Stock Exchange Limited v. National Stock Exchange of India Ltd., Case No. 13 of 2009 (CCI) ¶ 10.78.
83
Kapoor Glass (India) Private Limited v. Schott Glass India Private Limited, Case No. 22 of 2010 (CCI).
84 Fishman v. Estate of Wirthz, 807 F.2d 520, 536 (9th Cir. 1986).
86
Atos Worldline India Pvt. Ltd. v. Verifone India Sales Pvt. Ltd., 2015 CompLR 327 (CCI).
87 Case T-201/04, Microsoft Corporation v. Commission, [2007] ECR II-3601
-----------------------------------------------------------------------------------------------------------------------------------------------------------
88See : Albertina Albors-Llorens, Refusal to Deal and Objective Justification in EC Competition Law, 65 CLJ 24,
24-27 (2006).
89
Guidance on the Commission's Enforcement Priorities in applying Article 82 of the EC Treaty to Abusive
Exclusionary Conduct by Dominant Undertakings, (2009/C45/02), ¶15.
90 1 S.M. DUGAR, GUIDE TO COMPETITION LAW 541 (Arijit Pasayat et al. eds., 6th ed. 2016).
92
Three D Integrated Solutions Ltd. v. VeriFone India Sales (P) Ltd., 2015 CompLR 464 (CCI).
93
In Re, Samir Agarwal and ANI Technologies Ltd. and Ors., Case No. 37 of 2018 (CCI).
94 Builders Associations v. Cement manufacturers Association, Case No. 29 of 2010 (CCI).
95
See : Case T-208/01, Volkswagen AG II v. Commission, (2003) 2 ECR 5141.
96
Technip SA v. S M S Holding Pvt. Ltd., (2005) 5 SCC 465.
97Top Performance Motors Ltd v. Ira Berk (Queensland) Pty Ltd., (1975) 24 FLR 286 (Austl.); See also : Technip
S A v. S M S Holding Pvt. Ltd., (2005) 5 SCC 465.
98
Moot Proposition, ¶7(g).
99 Moot Proposition, ¶7(h).
100
See : Meyer v. Kalanick, 185 F. Supp. 3d 448 (2016).
Director General (Supplies & Disposals) v. Puja Enterprise Basti., [2013] 116 CLA 126; See also : In Re, British
101
Sugar plc v. Commission of the European Communities, OJ 4 CMLR 1316; T-202/98, Tate & Lyle and Ors. v.
Commission, [2001] 5 CMLR 859.
102 United States v. General Motors, 384 US 127 (1966).
104
In Re, Alleged Cartelization by Steel Producers, 2014 CompLR 145 (CCI).
105 In Re, Aluminium Phosphide Tablets Manufacturers, 2012 CompLR 753 (CCI).
106United States of America v. James P. Heffernan, No. 94-1080, US Court of Appeals, Seventh Cir., 43 F.3d
1144.
107
In Re, Aluminium Phosphide Tablets Manufacturers, 2012 CompLR 753 (CCI).
108 R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716 : AIR 1986 SC 2045 (India).
109 Sodhi Transport Co. v. State of Uttar Pradesh, (1986) 2 SCC 486 : AIR 1986 SC 1099 (India)
112
Moot Proposition, ¶7(h).
113 Metalrod Ltd., Ghaziabad v. Religare Finvest Ltd., 2011 SCC OnLine CCI 28.
114 RICHARD WHISH , COMPETITION LAW 525 (David Bailey, 8th ed. 2017).
118 Competition Act, supra note 2, §3(3)(a).
119
ABIR RO Y , COMPETITION LAW IN INDIA : A PRACTICAL GUIDE 160 (2nd ed. 2016).
120 All India Tyre Dealer's Federation, Informant v. Tyre Manufacturers, 2013 CompLR 92 (CCI).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
121
Varca Druggist & Chemist v. Chemists & Druggists Association, Goa, (2012) CompLR 838 (CCI).
122 Moot Proposition, ¶7(g).
123
Fx Enterprise Solutions India (P) Ltd. v. Hyundai Motor India Ltd., Case No. 36 of 2014 (CCI)
124 Shri Ghanshyam Dass Vij v. Bajaj Corp. Ltd., Case No. 68 of 2013, (COMPAT).
125 Kerala Film Exhibitors Association v. CCI, Appeal No. 100 of 2015, (COMPAT).
128 Competition Commission of India v. CCAT (2017) 5 SCC 17.
129 PETER W. ANDREWS & FRANK A. FRIDAY , F AIR T RADE, RESALE PR I C E MAINTENANCE RE-EXAMINED 57-58 (1960).
131Competition Act, supra note 2, §2(b); See also : Mohit Manglani v. Flipkart India (P) Ltd., Case No. 80 of
2014 (CCI).

135 Jasper Infotech v. KAFF Appliances, 2019 SCC OnLine CCI 2.

136 OECD Hearing on APPAs, Platform Parity/MFN clauses under competition law (2015), available at
https : //www.oecd.org/daf/A%20WincklerHearingAPPAsCC28Oct15.pdf.
137 F RANK WIJICKMANS , VERTICAL AGREEMENTS IN EU COMPETITION LAW 84 (Filip Tuytschaever et. al., 2nd ed. 2012).
Susan Hinchliffe, Price Relationship Agreements : Precompetitive, Anticompetitive, or Neutral, 27, ANTITRUST
139
MAGAZINE 45, 55-58 (2013).

140
Moot Proposition, ¶7(g).
141 See : RTP Enquiry No. 27 of 1984 (MRTPC).
142
DLF v. State of Haryana (2003) 5 SCC 622.
143 Gorden v. Lewiston hospital, 423 F 4d 184 (3d Cir. 2005).
147
Moot Proposition, ¶7(e).
148Ben 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.
149Competition 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.
149 Moot Proposition ¶1-2.
150 Moot Proposition, ¶7(g)
151 FHRAI v. Make My Trip India (P) Ltd., 2019 SCC OnLine CCI 37.
152
Act against Restraints of Competition, 2013.
153 Consolidated Version of the Treaty on European Union art. 101(1), (2010/C83/01).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
154 Case No. B-9 66 of 2010 and B-9 121 of 13, Bundeskartellamt (GCA).
155
Case No. 596 of 3013, Bookingdotcom Sverige AB and Booking.com B.V., (SCA).
156 Consolidated Version of the Treaty on European Union art. 101(1), (2010/C83/01).
157 Latham & Walkins, Antitrust and Competition Practice (2015), available at
https : //www.lw.com/thoughtLeaders-thoughtleadership-French-Macron-anticonpetition-law
158
Excel Corp. Care v. CCI, (2017) 8 SCC 47.
159
Moot Proposition, ¶3.
161
United Shoe Machinery Corp. v. United States, 347 US 521 (1954).
162
List of Clarifications, No. 8 at pg. no. 3.
164
Moot proposition ¶7 (g).
165
Moot Proposition, ¶5.
166
167
Dhanraj Pillai v. Hockey India, Case No. 73 of 2011 (CCI).
168
1 S.M. DUGAR , GUIDE T O COMPETITION LAW 192 (Arijit Pasayat et al. eds., 6th ed. 2016); See also : Aamir Khan
Productions v. CCI, 2010 SCC OnLine Bom 1226.
169
Moot proposition, ¶7(e).
170
Competition Act, supra note 2, §4(2)(a).
172 Moot Proposition ¶7(g)
173
Competition Act, supra note 2, §19(3)(f),
174 Moot proposition ¶7(h).
175 Indian Sugar Mills Association v. Indian Jute Mills Association, Case No. 38 of 2011 (CCI).
176
Nicolas Sahuguet & Alexis Walckiers, Selling to a cartel of retailers : a model of hub-and-spoke collusion, 4,
CEPR DISCUSSION PAPER 9385, 1, 1.
177 Moot Proposition ¶7(h).
178 Interstate Circuit v. United States, 306 US 208 (1939).
179
United States v. Davis & Company, 164 F. Supp. 827 (D.D.C. 1958).
181
Competition Act, supra note 2, §3(3)(a).
182
Raghavan Committee Report, Report of High-Level Committee on Competition Policy Law, ¶4.3-1
183 Moot Proposition, ¶12.
185
Notice on Activities of Trade Associations and Compliance with Competition Law, (N/09/002/2009), ¶4.36.
186 Lodestar Slotted Angles Ltd. v. CCI, [2011] Comp AT 225.
187Joseph E. Harrington et. al., How Do Hub-and-Spoke Cartels Operate? Lessons from Nine Case Studies (2018),
available at http://dx.doi.org/10.2139/ssrn.3238244.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
188
Builders Association of India v. Cement Manufacturers' Association, Case No. 29 of 2010 (CCI).
189 Treaty on the Functioning of the European Union, art. 101.
190 In Re, Express industry v. Jet Airways, 2018 SCC OnLine CCI 11.
191
Ahlstrom oy v. Commission, (1993) ECR I-1307
193Guidelines 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.
194
In Re, Express Industry v. Jet Airways 2018 SCC OnLine CCI 11.
195 Subhas Chanda v. Ganga Prasad AIR 1967 SC 878.
196 In Re, Suo-motu case against LPG cylinder manufacturers, Case No. 3 of 2011 (CCI).
197
201 In Re, Flashlights Market in India v. Eveready Industries, 2018 SCC OnLine CCI 98.
204In Re, Suo-motu case against LPG cylinder manufacturers, Case No. 3 of 2011 (CCI); See also : Brooke Group
Ltd. v. Brown & Williamson Tobacco Corp., 509 US 209 (1993), 227 (1993).
205 Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 US 209 (1993), 227 (1993).
206
Moot Proposition, ¶7(f).
207
208
Case C-89/85, Ahlstrom Osakeyhtio v. Commission, ECLI : EU : 1994 : 12.
209 Union of India v. Hindustan Development Corporation, (1993) 1 SCC 467.
210 Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 US 574 (1986).
212 The National Stock Exchange of India Ltd. v. Competition Commission of India, 2014 CompLR 304 (COMPAT).
213
Case C-23/14, Post Denmark A/S v. KonkurrencerÅdet, ECLI : EU : C : 2015 : 651.
214 Moot Proposition, ¶7(e).
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/
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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Monday, February 07, 2022

11th NLUJ Antitrust Moot, 2020

Before the Hon'ble Vormirian Company Law Appellate Tribunal

C. ADDITIONALLY, THAT THE FSAS HAVE ABUSED THEIR DOMINANT 9

Ministry Ministry of Consumer Affairs of Vormir

§4, The Competition Act, No. 12 of 2003, 1

INDIAN CASES PAGE NO.

Director General (Supplies & Disposals) v. 18

Semiconductor Ltd. and Intel Technology

EUROPEAN UNION CASES PAGE NO.

Cases 56/64 and 58/64, Etalissements 5

Beteiligungsgesellsschaft GmbH & Co KG

UNITED STATES CASES PAGE NO.

OTHER FOREIGN CASES PAGE NO.

GUIDELINES, REPORTS AND REGULATIONS PAGE NO.

Enforcement Priorities in applying Article

BOOKS PAGE NO.

JOURNALS AND ARTICLES PAGE NO.

and Recoupment, 113 CLR 1695, 1708-

deeper into the problem. Subsequently, VAR also approached the

WHETHER THE FSAS VIOLATED THE PROVISIONS OF §3(4)(E) AND §3(3)

which were incurred by the conventional restaurants due to the anti-competitive

14 See : Moot Proposition, ¶2.

32 Shamsher Kataria v. Honda siel, Case No. 03 of 2011 (CCI).

41 Moot Proposition, ¶5.

54 Case T-271/03, Deutsche Telekom v. Commission, [2008] ECR II-477.

132 Competition Act, supra note 2, §3.

135 Jasper Infotech v. KAFF Appliances, 2019 SCC OnLine CCI 2.

MAGAZINE 45, 55-58 (2013).

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