sue £ the economic of the Indian economy, quent economic liberalization which qejillow competition in the market Y ucidate with the help of committee reports: (20) on Act, 2002 was enacted in view 0 a.1- @ in opening UP Tie oar nat result noval of controls and conse renpled the Indian economy enablevithin the country petiti Ans. 1- The makers of the Indian Constitution being aware of the lin of economic power, laid dow” les Articles 38 and 39 of the Constitution, to impress {pon the governments of the ‘Country about the need of fighting this danger. Articles 38 and 39 alia, that the State shall of the Constitution of India mandate, inter Qinive to promote the welfare of the people by securing and protecting as Cérectively, as it may, a social order BY oerich justice — social, economic and political—shall_ inform in whitodtutions of the national life, and the State shall, in particular, direct its policy towards securing: 1 that the ownership and control of material resounees, of that Gunmunity are so distributed as best to subserve the common goods; [Article 39(b)] and 2. that the operation of the economic system does not result ei ee oeemtration of wealth and means of production to the common detriment. [Article 39(¢)] wel eee articles reflects the aim of moving India towards a walla iotate an building a just and equitable society, and nated eat eco tte hall, in particular, direct its policy pc eaciantagar apg tee that the ownership and ‘control of material fa aon oe eae eee. distributed as best to subserve pace oe Sooarn ena) that the operation of the economic hot result in the concentration of wealth and means o13.LLB, Soto Papers a a to the common detriment.” ‘Thy late j production of prod SMM THUS, state ier to some extent in India to climinate CONCENte a ln scary {0 St uh 6, A 7 Siireke . Aion, isnece (toler distribution of resources i Citable salth anc rs " independence the Indian Government ASSUME, ter ind Brea for overall development of the count by layin role . Which aimed at achieving a socialistic Pattern of Soci an promotes equitable distribution of Wealth and Conon, powers. However, the ghost of British had influence ond po ly framework of the Government and thus, the System of COntro "stricted freedom of entry into industry which led to, | ONCEnttaton ! economic power in the hands of a few individuals sr0ups. After this Government appointed the Committee (MIC) in 1964 of concentration of Power ij Recessary legislative, or other Measures in ¢] The commission in its report held that there ‘onomic power in the hands of few in istic and Testtictive trad own © check concentration of Monopolies and prevent ‘tal to public interest. The Bill Sent of Presiden Came into force on Ist June, 7 Wndia’s first Competition law came {June 1979, legislation ruled for 38 elation of Indi "aN economy in 1991 may merges ecame ol Solete, like t ere Was no provision = and ACQUisition, ‘refore, in order to meet 8 needs o betalization an Slobalization and to Conn for "eBulating business practices and Vern ia appointed a commit? len} of India a Oliey ang a f Me : W the chai anship of October 1” Ne chairmanship ; ‘Aghavan Committee). he ongpo a aim tg Shift the focus of ‘ onal ges to moting competition in li J “WhOnment ‘Owth ofwe sgt" iam . The term of reference of the committee inter alia included commending a_ suitable legislative framework relating to apetition law, changes relating to legal provisions in respect wrstiliVe trade practices and suitable administrative measures required to implement the proposed recommendations. The Committee submitted its report to the Central Government on the 2nd May, 2000, where it discussed in detail and made recommendations on both Policy and Law of Competition. Major recommendations of the committee are as follows: « The MRTP Act was beyond repair and could not serve the purpose of the new competitive environment. + All trade policies should be open, non-discriminatory and rule-bound. They should fall within the contours of the competition principles. + AllState monopolies and public enterprises will be under the surveillance of Competition Policy to prevent monopolistic, restrictive and unfair trade practices on their part. Any form of discrimination in favour of the public sector and Government commercial enterprises except where they relate to security concerns must be removed. * Anew (Indian Competition Act) may be enacted, the MRTP Act may be repealed and the MRTP Commission wound up. * Certain anti-competitive practices should be presumed to be illegal. * Dominance needs to be appropriately defined in the Competition Law in term of “the position of strength enjoyed by an undertaking which enables it to operate independently of competitive pressure in the relevant market and also to appreciably affect the relevant market, competitors and consumers by its actions”. * Mergers need to be discouraged, if they reduce or harm competition. Mergers beyond a threshold limit in terms of assets should require pre-notification. * The pending cases in the MRTP Commission may be transferred to the concerned consumer courts under the Consumer Protection Act, 1986. inLL.B. Solved p, ‘apers 616 x MTP (Monopolies and Restrictiya sine Pen alice Trade Practices) cases 4. the and radi Ne Mp “ommission may be taken up for Adjudication b Arp Competition Commission of India (CCI) from tp, Sager As ‘ ES they, were in. 7 + The Competition Commission should be a multi. mb, body comprised of eminent and erudite person, Of inten" and objectivity from the fields of Judiciary, Economics ed International Trade, Commerce, Industry, Accoun Affairs and Administration. The investigative, p and adjudicative functions should be separate. ANCY, Public Tosecu| torial Following Raghavan Committee’s recommen Central Government consulted all stakeholders including the trade and industry associations and the general Public. The Central Government after considering the Suggestions of the trade and industry and the general public decided to enact a law on competition to replace the then existing competition law namely, the Monopolies and Restrictive Trade Practices Act, 1969 which dations the “In the pursuit of, Slobalization, India has responded by opening , removing controls and resorting to liberalization Te natural corollary of this is thay the Indian market should be ition from which the country and outside... , for this Purpose, the iiudici dy known as ae 7 , quasi-judicial bo ly . Competition Commission Of India (CCI) is to be created which of the Competition Act, 2002 Te © undertake competition advoce) i tition issue imparting training on competitie ane Competition pj ; ment it December Mpetition Bill, 200] Was passed by the Parliamen and on 13th . e assent 0” © Preside i January, 2003 received the : **sident of India any int published ih tha Caanotte of nidpy gai 4 October, 2003 and paved the tion Commission of India 07 ae way for setting up of the o ba CT") at New Delhi amp ° 7 finally it can be concluded that the Competition Act, nv enacted in view of the economic development that a wa Xe in opening up of the Indian economy consequent upon pel omic Hberation which enabled the Indian economy to allow on ; petition in the market from within the country and outside al she country 2 The Joint Forum of all the producers and distributors of India (jFPD) who were controlling almost 100% of the market for the roduction and distribution of Hindi motion pictures in India had callectively decided in their meeting that the bollywood movies will hereleased in the multiplexes only after the multiplex owners agree upon revenue sharing including ticket sale shating ratio, Pursuant tohis agreement JEPD had issued notices instructing all producers and distributors not to release any new film for the Purposes of ahibition at multiplexes. Under the given circumstances the nultiplex owners approached Competition Commission of India for prohibition of anti-competitive behaviour of JEPD. Decide on behalf of CCI, with the help of CCI orders and relevant statutory provisions, (20) Ans, 2. The above question requires interpretation of section 3 of the Competition Act, 2002, The Competition Act, 2002 prohibits any agreement which ‘uses or is likely to cause an appreciable adverse effect on “mpettin in India. Any agreement which infringes that Prohibition is void. Thus, one of the key concepts underpinning dian Competition law is the notion of an ‘appreciable adverse ci" O Competition (AAEC) in India, Secons 3 to 6 ofthe ipetition Act clearly aim at curbing anti-competitive trade, Promoting competition business. ' sin 3(1) is a general prohibition of an agreement relating Producti istributi acquisition or nto of oon supply, distribution, storage, acqui 's Or provision of services by enterprises, which P| LL.B. Solved 2% pers, , Out, ie is likely to cause an appreciable he ses or is causes 0 . Adverse Che E ithin India. Competition (AAEC) wit iebeceanasceac¢ ding section 3(1), it ecom. hat the eton One ‘hat an anti-competitive agreement is, by ogy an reatnat an agreement (in respect of P Sion storage, acquisition or control of Ei eaioe ened causes or is likely to cau diese effect on competition within pai is declared that such an agreement is void. ‘Vig; Se and a Precise Prohibiteg and has i i its of Section 3(1) Essential Requirement: | : ° Section 3(1) prohibits agreement whic cause an appreciable adverse effect on co} Thus, there are two essential requirement: section 3(1):— h causes or jg Mpetition wit} Ss to bring into likely t hin India eration (i) There should be an agreement; (ii) Agreement should cause an ay competition within India. (i) Agreement ppreciable adverse effect on petitive agreements are usually allocation of territory, exclusive ‘agreement’ has been defined under section Act, 2002 in the following way:— ing or includes any arrangement or understanding (i) whether or no is formal or if ing or action (i) whether or Not such arrangement, understanding 0 is intended to be enforceable by legal proceeding. sovers Of ‘agreement is inclusive one ane se as understood in the convention ntract under section 2(e) of the ee ‘action any ‘arrangement’ or sunderstandiss may between two Or more parties. The see le by lege! Writing and may or may not be enforcea “agreement” action in concert: . ction t, such arrangement, understanding or a in writing; or i agreement 1€., agreement defined Act, 1872, but also in concert’ in © Oral or in __,. _—r- Oo sition LA vs! ci dings. Thus, an agreement not enforceable at law is also sod ings a prove ad by the definition of Agreement under the Act ore cove mreciable Adverse Effect on Competition within India ai a term “appreciable adverse effect on competition” has not been sined in the Act. As the expression “appreciable adverse effect on sttion” has not been defined abstractly or in general terms avhe Act, every case has to be examined individually and facts w ysidered peculiar to business, its condition before and after the restraint was imposed, the nature of the restraint and its effect, actual or probable. Section 19(3) of the Act, specifies what factors are to be taken into consideration by Competition Commission of India (CCI) in determining whether an agreement has an ‘appreciable adverse effect’ on competition under section 3. Section 19(3) reads as follows:— The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under section 3, have due regard to all or any of the following factors, namely— (a) creation of barriers to new entrants in the market; (b) driving existing competitors out of the market; (©) foreclosure of competition by hindering entry into the market; (4) accrual of benefits to consumers; (¢) improvements in production or distribution of goods or provision of services; () promotion of technical, scientific and economic development by means of production or distribution of 80ods or provision of services. The first three factors i.e., clauses (a) to (c) relates to negative tffect on competition ie, they have anti-competitive features. Enterprises and their acts of indulging in any one or all of these amiss, may come within the ambit of anti-competitive conduct St indulgence would be a strong indicator to establish such OP OF ‘appreciable adverse effect on competition in the market’ by (@ to geePrises. However, the remaining three factors i.., clau: ; (f) indicate pro-competitive conduct. As such, depending, aeLL.B. Solved Paper, ces of cach case, the “ 1 circumstances 0! ts and c on fac of the enterprise and as conduct of the ae ates nti-compe ; ermine s oral detern’ are pre ‘ conducts a h cond Morcor, ve woul “certain yp suc 19(3) seems to be a mandatory section 19(3) § Thus, sec PrOVisiog a siot bor 0 apply these factors for 1 is bound to apply th ssion is Commiss ivi nd the arriving ALAA e| iti t, 2002 3(2) of the Competition Ac 00 Son agreement iD ee eee 2002 shall be void. The the Competition Act, a f the ponreteonls if it contains anti competiti in me construed as vou se effect on the competition. Thus, sects’ appreciable piel which causes oF likely to Cause an ibits am iting” ¢. 7 a aa effect on competition” in India. appreciable adverse ef ly mentions four ion 3 f the Act express ental een that are presumed to have an appreciable orizontal BY ‘ — effect on competition (AAEC). declares th, NE Of section 3(1) of whole a, Teem, is tive clauses havi at any ) (a) Prize-Fixing Agreements [Section 3(3)(a)] a () Limiting or Controlling Production, 3(3)(b)] (c) Market Allocation and Sharing [Section 3(3)(c)] (d) Bid Rigging or Collusi ive Bidding [Section 3(3)(d)) int The question Tequires discussion of only (a), so only point (a) is dismissed, Supply ete. [Section ing Agreements are the agreement Which direc T sale Price, Price-fixing, and distribut ¢ anti- mt common fom fa tly or indirectly dete in the can occur at any eve nests Process, It may involve oe finished B0ods, intermediary inputs % specific also involve agreements aenees discounts °mputation, including the granting o Purchase o1Ye on Late pates, drawing UP to price lists and variations therefrom, oba aa rel 4 exchang jus, Price Fixing Agreements is per se prohibited Thus, oun of price information FCCLMultiplex Association of India v, United Producers/ In are Forum, Case No. 01/2009 order dated 25.2.2011 urn collective decision. was taken by United Producers (Uiputributors Forum (UPDF) not to release Hindi films to plexes in order to pressurize them into accepting new terms rttenue sharing ratio. UDPF issued notices instructing all * ducers and distributors including those who were the members PAUDPF not to release any new Hindi film for the purpose of qhibition at the multiplexes. A complaint was registered with CCI. CCI directed Director General for investigation. The report {Director General stated that UDPF was controlling almost 100% othe market for the production and distribution of Hindi Motion pictures which are exhibited in Multiplexes in India. UPDF were acting in concert to fix sale prices by fixing revenue share ratio in violation of section 3(3)(a) of the Act. Besides this, they were also limiting /controlling supply by refusing, to release Hindi Pictures: in multiplexes in violation of section 3(3)(a) of the Act. The Competition Commission held that the agreement entered into by the opposite parties is covered within the contour of clauses. (a) and (b) of section 3(3) of the Act. The CCI went further to analyse section 3(5)(i) to determine the unreasonableness. It held that since a feature film is considered tobe a bundle of copyrights to make copies, sell or give on hire ©rcommunicate a film in public, the question arises whether the ght to sell or give on hire or communicate the film in public includes also the right not to sell or give on hire. CCI held that thas to be noted that copyright does not grant a market power ‘0 the holder since there is a difference between the bargaining, lanes eetween individual copyright owners vis-a-vis collective sing through copyright societies. Q3, bcc, *gistratio ocieties 4 society registered under Tamil Nadu Moti Act, 1975 is engaged primarily in controlling and hag ni Ng football sport in India. The BCCI in the year 2011 Sted a professional domestic football league tournament bhLLB. Sotueg Paper 622 as HEL, which over the years hay deve known 1 football brand, BCCI granted franchise reba” : oe p infinitum tenure, media rights : Ss and sar ned not to have any compe compers with HEL, Examine whether there is, j of section 4 of Competition Act, 2002, on infor, 2 football fan, against BCCI to CCI, fora F Venti, ation gyeation Support your ang os by relevant provisions of Competition Act and Ccy orders, i 0) Ans. 3. Section 4 deals with abuse of domin market. ANE Position in Televant Section 4 shall be no an enterpri (1) of the Competition Act, 2002 abuse of dominant Position by an ise holds a dominant it is not enough to hold it liable be an abuse of such Provides that there enterprise, Thus, if Position in the under this section. The. a dominant position, Thus, dominance pe law in any jurisdiction Te must "seis not considered bad under competition . however it has been universally accepted minance constitutes an anti-competitive Practice, In short section 4(1) of the abuse its dominant POsition any unfair or q sale of goods or ser Act states that ane. when it directly or j, minatory condition or Price, in purchase or vices. The Competition Act seeks to prohibit any such behaviour of an undertaking whereby it attempts to abuse its dominant Position, in turn affecting the harmonious functioning of the market. However, it may be worthwhile to note that the Act does not seek to prohibit an enterprise from attaining a domin, oa se ant Position; it only secke to prohibit the abus of such dominant Position, . n The acts of abuse of dominant Position are set out in sectio 4(2)(a to e) of the Act, nterprise is said to ndirectly imposes 2 iscriminatory— indirectly, 'Mposes unfair or discrimina s, of ion t orvices, a8 or sale of goods or serv’ price) Or sale (including Predatory eS, or- 623 jiion py Hits oe eduction of goods or provision, of services or market ) Pt thereof, or ) technical or scientific development relating to goods i) . . . (wor services to the prejudice of the consumers, or ) includes in practice or practices resulting in denial of ) i . . : market access in any manner, or @ makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts, or (¢) uses its dominant position in one relevant market to enter into, or protect, the other relevant market. Inquiry into Abuse of Dominance Under section 19 of the Act, the Commission may inquire into any alleged contravention of section 4(1) of the Act that prescribes abuse of dominance. Section 19(4) gives a detailed list of factors that the Commission shall consider while inquiring into any allegation of abuse of dominance. Some of these factors ae market share of the enterprise, size and resource of the mterprise, size and importance of the competitors, dependence of consumers, entry barriers, and social obligation and costs in the relevant geographic and product market, _The Commission, on being satisfied that there exists a prima Acie case of abuse of dominance, shall direct the Director General ‘0 cause an investigation and furnish a report. The Commission | ee Powers vested in a civil court under the Code of Civil ieee in respect of matters like summoning or enforcing ican of any person and examining him on oath, requiring ZY and production of documents and receiving evidence in fidavit. The Director General, for the purpose of carrying out naff rs caation, is vested with powers of civil court besides powers nduct ‘search and seizure’. ja the gy ity the Commission may pass inter alia any or all 0) gan "8 orders under section 27 of the Act | di | i‘ ect the parties to discontinue and not to re-enter such ‘Sreement;624 ULB. Sotveg Paper, " . Tour, , @) direct the enterprise concerne ¥ the ag = abide py such on May pass and £0, 9 ‘d to Modif, concerned to as the Commissi () direct the enterprises orde Othe " I. 7 S, including Payment of Costs, if 4 i the (4) pass such other orders or issue such direction, . deem fit; t may () can impose such penal (6) Section 28 em Leading Case Belaire Owner's Association vy. ppp Ltd., HUDA ang Department of Town and Country Planning, State of Haryana Fact: ‘Belaire Owner's Association’ (informant) filed a petition under section 191) of the Co, i , abusing its dominant Position, imposed highly arbitrary, unfair conditions on the informant he? WS prima facie unfair and c tory, thus attracting th, inact DLE the Act. The CCI held that there was a prima facie case eee infact the Act, and ashes Director General (DG) «2 investigate informant’ allegations on DLE, as a dominant player in ma and whether there exist reley; ore true report observe tons made by the informant wet and the Act was applicable in the respective case. Issues: ® Do the Provisions of o facts the Competition Act, 2002 apply to and circumstances o f the instant case?~ tition La What is the relevant market, in the context of section 4 read (i rath section 2(1), section 19(5), section 19(6) and section 19(7) Wr the Competition Act, 2002? 0 625 arn @ i) Is DLF dominant in the above relevant market, in the context (i) jf section 4 read with section 19(4) of the Companies Act, 2002? .) In case DLF is found to be dominant, is there any abuse of Wg dominant position in the relevant market? opservation/Decision/Order: (i) On the Ist issue, the Competition Commission of India (CCI) held that the Act applies to all the existing agreements which entered into prior to the coming into force of section 4, Further, Commission relying on the definition of Service under Consumer Protection Act and section 2(u) of the Competition Act, CCI held that “it is clear that the meaning of ‘service’ as envisaged under the Act is of very wide magnitude and is not exhaustive in application, thereby including the activities undertaken by DLF within the ambit. (i) On the 2nd issue, ie, on the issue of relevant market the Competition Commission of India held that relevant market under this case is ‘high end multi story apartments in Gurgaon’. DLF’s ‘high end’ residential building in Gurgaon target only specific consumers, according to their capacity to pay and a decision to purchase a high-end apartment in Gurgaon is not easily substitutable by a decision to purchase a similar apartment in any other geographical location. (iii) On the 3rd issue, the Commission analysis, as per the section 4{a) and section 4(a)(ii) was that the position of strength is decided not only on the basis of the market share of the papas but on several other factors given in section 19 of le Act. In this case, DLF position of dominance in the relevant market cannot be ignored as it has advantages over competitors in size and resources. Thus, CCI concluded that “DLF operate independently of competitive forces prevailing in the Televant market or to affect its competitors or consumers or the relevant market in its favour.” >f.. > 3. Solved Papore LLB ved Pay Founy th 626 4th issue, the Competition C OMMission of In, (iv) On " UDLE has resorted to malpractice jn the old thal inane i he “ i acts of abuse of dominance position c and its acts dia (Cg A be ce. seen in this case. The abuse was alleged to he Commi. by imposing unfair conditions on the buyer throu, the Provisional Booking agreement, under which some Chie gives right/power to DLF to change the layout Plan w; consent of allottees, unilateral power to make chan, BES in y agreement and the power to supersede without any Tight the allottees. Finally, the Competition Commission of Indi, DLF has contravened the section 4(2)(a)(i) and (ii), indirectly, imposing unfair or discriminatory Conditions in the sale of services. CCI found DLF guilty of abusing its dominant Position in the market and imposed a Penalty of Rs, 630 Crores on DLF. The CCI further directed DLF to cease formulating and Imposing such unfair conditions in its Agreement with buyers in Gurgaon and to Suitably modify unfair condition Posed on its buyers as referred to above, within 3 months of the date of receipt of the order on DLF. Jagmohan Chhabra and Shal a held that directly ang and desist from ini Chhabra v. Unitech Ltd. Facts: Mr. Jagmohan Chhabra and Mrs. Shalini Chhabra (informant) filed complaint against Unitech Ltd. for is alleged abuse of dominant Position in the market of development of multi-storied residential “partments in city of Gurgaon, Haryana before Competition Comet AS per the S the items and conditions of the esreement are one sided if ; ind favourable to Unitech. For instance, for delay in delivery of the @Partments to the bu. rs, Unitech 's to ae Rs. 5 per Sq ft/per month, while if there is a delay i vert ment payme, S the cost of the apartments, the Mpa’ € Pay at the rate of 18% per annurn on quarterly is. The informants have submitted that su i dition are _ » to them and hay, - “Te Not acceptable to a from Yon simed that the compensation fee delay in delivery TOM Unitech should be e F p. The the rate of 18% per annum ach of its dominant position Ue © funds collected from the buyers 1 * PrOIectS because of which the proer tit” Law oe Si not been completed in due time. The acts of Unitech amount has Mise of dominant position which is anti-competitive as per to abut ection Issue? Whether the acts of Unitech amount to abuse of ant position as per section 4 of the Act? 4of the Act. domin pecision/Order: 7 {) The Competition Commission of India (CCI) after carefully considering all the facts and allegations mentioned in the information together with all the relevant materials available on record, held that the Unitech is a company registered under the Companies Act, 1956 and is engaged in providing services for the development of real estate in India. Therefore, the activities being performed by the Unitech are covered under the definition of “enterprise” provided in section 2(h) of the Act. (i) The CCI held that in order to determine whether any enterprise is abusing its position of dominance, it is necessary to first find out the relevant product and relevant geographic market with reference to which that enterprise is alleged to be dominant. The relevant product market in this case is the ‘services provided by the developers for providing residential apartments to the customers’. The relevant market in this case is market of the services provided by the developers for providing residential apartments to the customers in geographical area of Gurgaon in Haryana. ‘ (ii) The Commission observes that the value. of the residential units in this case is about Rs. 50 lakh. Although Unitech is one of the known builders, there are other big developers and builders, who are providing their services in development of residential units in this range in the relevant geographic market. It cannot also be held that Unitech can operate itself independently of the competitive forces prevailing in the televant market and can affect the competitors in its favour. Considering above, the Commission is of the opinion: that, Prima facie, Unitech cannot be said to be a dominant enterprist in the relevant market. Since Unitech is not in a dominant Position in the relevant market, any question of abuse within. LL.B. Solved p, a} Pers ning of provisions of section 4 Will also , the meaning = this case. _ Ity, the CCI held that on a careful OSiderarie oe a the Commission accordingly holds Nat pa ay entire mat i 8 ” OF, ent i is made out for making a reference to the Directoy” Z — ot conducting investigation into this Matter under 26 1 of the Act. In view of foregoing, the Co: dows the proceedings of the case under se Mr. R. Prasad (Member, CCI) Dissen Mr. R. Prasad in his dissentin the relevant market is “FRESCO” because the captured consumer exist. The unfair conditions impo: Surinder Singh vy. 113 CLA 579 (CCl) Facts: In this case, fan, filed information against Board of Control for C (BCC) alleging irregularities in the organization of | League (IPL), Twenty 20 and professional le. conducted by BCCI. MMission ction 26(2) ting Order g§ Order held that, that in this... “in which Unitech ig otc ems i. of thes Surinder Singh (informant), Who is a cricie Ticket in Indy Indian Premier ague tournamen: Pursuant to the above information, exists a Prima facie CCI opined that the: , case and directed the investigate the matter. The 21, 2012. Issues; @ Whether BCClis an ‘enterprise’ ag defined under section a “a Act and whether th Competition Act is applicabl? ® ant market in the said case? ‘a : ale 88 determinads ®® # dominant Position in the relevant ™! 80, whether BCCI b * the ran tin cone @bUsed its dominant position Pi FOF the Act Ontravention Of the provisions of ie n der, @ The 5 Ww Petition isc; hat Som Petiton Ae eo MSSion of India (CC) held th! *er eto Ua 629 rather than institutional aspects. The scope of the definition on the institutional front has been kept broad enough to jnclude virtually all the entit as it includes “person” as well as departments of the government. The nature of activity decides whether the entity an enterprise for the purpose of the Act or not. The activities of “organizing, events” are definitely economic activities as there is a revenue dimension to the organizational activities of sports federations. Thus, BCCI is an “enterprise” under the Competition Act, 2002 because the BCCI’s role as ICC governing body for cricket in India was both as a “custodian” for the game and also that of “organizer” of matches. Although, BCCI was a “not for profit” and has no statutory status, but its activities were revenue generating (e.g., it sold media rights as well as tickets). Thus, Competition Act is applicable to it. (ii) On the issue of Relevant Market, the CCI held that in this case the relevant market is “organization of private professional cricket leagues/events in India.” (iii) On the issue of dominance of BCCI, the CCI observed that BCC dominance arises inter alia from its regulatory powers, control over infrastructure, control over players, ability to approve/control the entry of other leagues, and “monopoly status”, its ability to “approve leagues” and considers that to be “critical to the organization and success of any competition league.” BCCI’s ability to control an input which is indispensable to the success of cricket events is also a source of dominance for it.” (iv) On the issue of abuse of dominant position, the CCI held that the BCCI abused its dominant position by: * Denying market access to potential competitors to the IPL by “binding itself” not to organize, sanction, or recognize any private professional domestic leagues/events other than the IPL; and * Limiting the number of franchisers in one private Professional league (the IPL). Finally, in view of the above discussion, the CCI concluded that BCCI was abusing its dominant position in violation of Section 4(2)(c) of the Act and imposed a penalty @ six per cent Re. gf| “ BCCT in 2007 ah sy erage turnover of the BCCI in 2007-08, 2008, Seng, of the average envered melee ang, MB, Solved Parey, i as, 5 10 amounting to Rs. 5 Dhanraj Pillay v. MA hy, - Hockey India, 2013 Comp yp 543, Facts: In this case, information is filed by six former oO} Cay and National Hockey Players (collectively referred ag ‘inform Pn to CCI under section 19(1)(a) of the Act alleging that Hocke rs) (HI) is abusing its dominant position and indulging j io anti-competitive practices relating to the Organization of wis Series Hockey League (“WSH”). The informants allegeq iS Hockey India (HI) is misusing its regulatory Powers by promot its own Hockey League at exclusion of WSH, resulting in deni of market access to rivals in contravention to section 42(0) ri the Act. CCI after finding a prima facie case directed the Directo, General (“DG”) to investigate the case. The Di (DG), concluded that conduct of actions of Hockey India The Hockey India (HI) raised several issues and contended that Competition Commission of India (CCI) has no jurisdiction to decide the case. Issues: (i) Whether Competition Commission of India (CCI) has jurisdiction over Hockey India (AD) and International Hockey Federation (FIH)? (ii) What is the Relevant Market (RM) in the present case? Gil) Whether Hockey India (AI) holds a dominant position in the Relevant Market? (iv) Whether Hockey India (Hl) Decision/Order: (i) The Commission first considered the issue of its jurisdiction over Hockey India (HI), and taking into account i Provisions of the Act and a holistic consideration of @ relevant factors, held that while a national sports federation may be an institution for Tegulating the sport, it also man and oversees various Organizational activities in relation - the sport such as sale of tickets Brant of media rights, el’ tion? has abused its dominant position?r ition Law’ ol which are all considered to be ceonomic activities Thus, Hockey India is an ‘enterprise’ under the Competition Act and so CCH has jurisdiction over it The Relevant Market in this case is “the market eae hockey players” (ii) The Commis to its position as a ‘monopsony’ buyer. A monopsony buyer is a single buyer who has the option of many sellers. In this case, HI is the sole buyer of the services of hockey players for the national team, and it can choose these services from a vast pool of players. In this role and with instruments such as the CoC Agreement with the players, it can restrict their freedom of movement and is thus in a dominant position. (ii) ion held that HL is dominant in this market, due (iv) On the issue of alleged abuse of dominance, the Commission scrutinized the FIH Regulations and appreciated factors such as maintaining the integrity of the sport, ensuring, the primacy of international competition and observed that Hl was using its dominance in conducting international events in India and also puts restrictions on players from playing, in unsanctioned events but there was no restriction on participating in any event. CCI held that such conditions are inherent and proportionate and is not anti-competitive. Accordingly CCI held that HI was not abusing its dominant Position. Finally in view of the above discussion the Competition Commission of India concluded that there is no contravention of section 3(3)(b), 3(4), 4(2)(a), 4(2)(c) and 4(2)(e) of the Act. However, CCI observed that, HI economic power is enormous as a regulator. Vixpually, there is no other competitor of HI. Therefore, it would be appropriate if HI were to put in place an effective internal control system to ensure that its regulatory powers are not used in any way in the process of considering and deciding °n any matters relating to its commercial activities; and also set iP @ streamlined fair and transparent system of issuing NOCs ke the players for participating in events organized by foreign ams/clubs, MCX Stock Exchange v. National Stock Exchange Ltd, 2011 ™p LR 129 (CCI) Cor. LL.B. Sop 632 In this case, MCX-SX (ing Stock Exchange was abusing th by (a) eliminating competition from Curreney Der, t Posi, t segment, (b) discouraging new entrants exchange services and (c) achieving fore, in stock exchange services, This is because NSE h, transaction fee waiver in CD segment, fee in this segment but does so in oth no annual subscription in CD segme Providing data feed in this segment. The i NSE is able to do this bec, (i) crog “subsidies CED from other St 1 Payer Fac National ormant "he its ‘Ne relevant market, in the context of Section 4 reaq Mia ) and section 19(5) of the Competition Act, et, in the context the Competition Act? issue, the CC] held that in this case, the Felevant market ; CD segment and this is a distinct market in aS much as CD Services &re similar to other exchange Services but are oe, inter changeable In determining the releoant marker Sion relied on the Report of the ternal Working Croup of RBT, which had advocated a clet eeearation of CH Segment from, other segments in any stock 2 in the 'ssue i.e, Whether Ngp is dominant in Me relevant matket, the Co, iSsion examined the market iat i other segments and oer due y¢ ithad a position of strength ce cl (a) in FRO, WDM chr- gestion . cor had 92% share (b) NSE deposits were at Rs. 9.17 billion and pad 92! agit before tax Rs. 6.89 billion (c) N present in 1486 Pinters in India and (d) NSE has a high degree of vertical c sgration. On the other hand, the Bombay Stock Exchange is present in Maharashtra and Gujarat only. MCX- present only in 450 centers and deposit is lower in comparison to that of Ns strength fo has posi CCI observed that without this ee waiver would not have been possible. Thus, NSE ion of strength and enjoys a dominant position in the relevant market in the context of section 4 read with section 19(4) of the Act. fii) On the third issue, the Commis sion via the previous NSE circulars found that the informant has been facing the restraint of zero fees since the beginning. The pattern of behaviour of NSE suffering from inconsistency and the Commission concluded that nothing can be reliably derived from these behaviour patterns that would reasonably lead to the conclusion that they have consistently followed a philosophy of fee waivers in nascent market. However, the Commission concluded that the zero price policy of NSE in the relevant market is unfair and can be termed as destructive pricing. Commission opined that NSE by not charging transaction fee is subsidizing activities in CD segment which is open to competition and is using its monopoly profits to leverage its position. Thus, it was case, according, to CCI, of abusing dominance in one market to enter into another market. Finally, the Commission directed the NSE to modify its Zero price policy in the relevant market and to cease and desist fom unfair pricing, exclusionary conduct and unfairly using its dominant position in other market/s to protect the relevant CD market with immediate effect. The Commission levied a penalty on NSE equivalent to 5% of their average turnover amounting to total of INR 55.5 crores. Qa Whetl Seetio, tanta isc her holding an application for recall of an order under N 26(1) of the Competition Act to be maintainable would mount to conferring a right of hearing to the person/entity? USS the above Proposition. (20) bhLL.B, Solved 64 hs Ans. 4. provides that on receipt of Section 26 provides or a State Governm the Centra migtoen knowledge or informat authority ifthe Commission is of the opini coon fea case, it shall direct the Director ; ae fe to be made into the matter. Inve Papers a Tefere Nt op a ; Staty, 0 receive ut on that there gt General tg cag 4 i dmark judgment OF Com, Court in the lan ; pera Petit The ae v. Steel Authority of India Limited, (20 ie the direction under section 26(1) o, : th Stayed the investigation before te ieved implead CCT as Party before it. CCI aggriev the e parties, ie, the ie its em at length, before form in fact ePinion. The function is of a very Preliminary ceed stage Parlance, it is a departmental function. A ii cation of a! it does not conde any person and therefore, applicatio alteram part, 7 em is not called fo Formation of a ima facie 6 amou ' nt toan adjudicatory fy, at 0 es Pinion departmentally do! Nature, ve inistrat nction but is merely of admit At best, it cay N direct Teport to be sub: id ed atl acted ar the investigation to be cones the mitted to the Commission itself or cloee sion UE 635 a torms Of section 26(2) of the Act which order itself is appealable afore the Tribunal and only after this stage, there is a specific “ht of notice and hearing available to the aggrieved /affected sgh “Thus, Keeping in mind the nature of the functions required Pt performed by the Commission in terms of section 26(1), we are of the considered view that the right of notice of hearing is not contemplated under the provisions of section 26(1) of the Act. frowever, regulation 17(2) gives right to Commission for seeking information, OF in other words, the Commission is vested with the power of inviting such persons, as it may deem necessary, to render required assistance or produce requisite information or documents as per the direction of the Commission. This discretion is exclusively vested in the Commission by the legislature. it to The investigation is directed with dual purpose; (a) to collect material and verify the information, as may be, directed by the Commission, (b) to enable the Commission to examine the report upon its submission by the Director General and to pass appropriate orders after hearing the parties concerned. No inquiry commences prior to the direction issued to the Director General for conducting the investigation. Therefore, even from the practical point of view, it will be required that undue time is not spent at the preliminary stage of formation of prima facie opinion and the matters are dealt with effectively and expeditiously. Therefore, the direction given by the Commission under section 26(1) while forming prima facie opinion would not be appealable under section 53A(1). This provision for causing an appeal expressly provides that the appeal lies from the decisions or orders or directions of CCI and not as stipulated under section 26(1). In relation to the prima facie opinions the apex court held that while forming such opinion, CCI must record the reasons ‘or supporting its view. However, while passing orders which we adjudicatory and determinative as against the rights of the Patties, the Commission is required to pass speaking orders. Further, the Hon'ble court observed that in cases where wi enduiry has been suo moto initiated by the CC% then CCl co the necessary party and all other cases Cate the emo pantyain the) proceedings Delorean inquisitorial invest of the Act, confers upon the Commission, ars tent Wise regulatory, and adjudicatory an s tY jurisdiction.y LL.B. Solved Papers—p ‘our, Son, , cay an order passed by the ¢ m no gecallreview a amet ese by . awer 10 hg inv at s direct" jeausit estigatio b: ji ig 1 exe’ saa) of Act 26(0) oh Cour ; _ and Ors. n Google Inc. ana - Vv. Cy es a OFS ‘MANU/DE/1271/2015 wet mission of aie ecord that it was not to be under a materia’ ” every case in which CCI has ogg.’ terpri ler inves Ee inst, SUC yson/enterprise would have a right ie eB ie call of that order. Such a power though foung app yi ras to be sparingly exercised and ensuring that reas, which prevail wit ‘reme Court in Competition Commission g ‘ : India V- Steel Authority of. India Ltd. for negating a right of heating |. Such a power has to be exerciseg of power of review/recall ang to a pers on well recognized parameters O° F ¢ ; guments and without investigation already without lengthy 2% ordered being stalled indefinitely- In fact, it was up t CCI to also upon being so called upon to recall/review its order under section 26(1) of Act to decide whether to, pending said decision, stall the investigation or nol Moreover, jurisdiction of review/recall would be exercised only without entering into any factual controversy, CCI found no merit in complaint/reference on which investigation had been ordered. Further such application for review/recall of order under section me ae vas not to become section 26(8) stage of Act Hence tah Ae we 1 recall/review order under section 26(1) of At parameters and subject to restrictions discusse aforesaid. Com ners js conveyine ie Q. 5. (a) Dis Side the G term ‘Combination’. How are they reg iiike eae Act, 2002? Elaborate the he Pes ity and investigation of combination unde (b) Explain h i Airways Ff jet identified the relevant market in et Airways Combination Order. Ans. 5, (a) proce! Section 5 of the of on Act defines a € or more nie sates ‘combination’ to mean acquisife y one or ger more persons OF mere om 67 ieamation of enterprises as per the conditions specified under algams ordi se anal vision, The section prescribed for the threshold limits for ihe PU quisition, merger or amalgamation. such ae _ thus, section 5 specifies a threshold below which a merger, quisition oF acquiring of control is not regarded as a combination. acquis In simple language, section 5 states that combination that aceeds the threshold limits specified in the Act in terms of assets sp tumover, Which causes or is likely to cause an appreciable adverse impact on competition within the relevant market in india, can be scrutinized by the CCI. The threshold limits are specified in terms of assets or turnover. The threshold limits re different according to whether the combination involves an enterprise or a group, and also whether the combination has assets or turnover only in India or worldwide. Thresholds Limits Assets Turnover [Enterprise | India > 2000 INR crore] or [> 6000 INR crore [level | Worldwide | 5 Usp 1 bn with > USD 3 bn with at ae India | at least least | “6 > 1000 INR crore > 3000 INR crore in | in India India or [Group [india > 8000 INR crore > 24000 INR crore level | Worldwide | © ysp 4 bn with > USD 12 bn with with India | 7 jeast at least leg, > 3000 INR crore > 1000 INR crore i Tae in India Section 6(1) stipulates that a person or enterprise should not ‘ater into a combination, which causes or is likely to cause an “ppreciable adverse effect on competition within the relevant "market in India. If entered into, such a combination is void. (Thus qubination in itself is not prohibited. It will be held void only "adversely affects competition) proststion 6(2) makes it mandatory to the person or enterprise of seek’ {0 enter into a combination to give notice to the co days of vchtion, providing details of the combination within : @pProval of proposal relating to merger or amalgamation, ~~ aa ON LL.B. Solved p, pers 38 mine 63 of any agreement or other documeny or cution of « execution referred in section 5(a) of the Act. ; oy Recently, the Central Government, in Public has exempted every person or eenPeise who is a Party’ combination as referred to in section of the Act fro, si? notice within 30 days for a Period of 5 years from ane publication of notification in the Official Gazette ie, June », ant Further, section 6(2) makes it clear that, no Combinatio, r come into effect until 210 days had elapsed from the date on notice had been given to Commission under 6(2) and Comm Passes orders under section 30(1) whichever is earlier, Section 6(3) further provides that after Teceipt of Notice, the commission shall deal with such notice in accordance with the Provisions contained in section 29, 30, 31. Which ission Regulation of Combinations Section 6 of the Competition Act, 2002 deals with the Procedure for regulation of combinations. Procedure for Investing of Combination [Section 29) After receipt of the Tesponse of the Parties to the combination. the Commission may call for a Teport from the Directo! General. Such report shall submitted: by the Directo" General within such time as the Commission may direct ihe Commission is prin, cic inion that offen ation has or is likely a have, ea ae from the reo Pe it shall within seven working an m Director Pt Of the response st the receipt of the 1P° °F General, whichever is later direct the parties~ ptt: B® 639 o ublish the details of the combination. The publication shall prmade within ten working days of such direction. This is for the purpose of bringing the combination to the knowledge and information of the public and persons affected or likely to be affected by the combination. The Commission may invite any person or member of the public, affected or likely to be affected to file his written objections. This shall be done within fifteen working days from the date of the publication of the details. 4, The Commission may call for additional or other information from the parties to the combination. This shall be done within fifteen working days after the expiry of the aforesaid period of fifteen working days. The additional or other information shall be furnished by the parties within fifteen days from the expiry of period mentioned in Para 4. a a . After receipt of the information the Commission shall proceed to deal with the case within a period of forty-five working days from the expiry of the period mentioned in Para 5. Inquiry into Combinations The various steps involved in examining whether a Combination has any adverse effect on competition involves the following process: (i) Identification of the relevant market, consisting of relevant product market and relevant geographic market, (i) Consideration whether the Combination has appreciable adverse effect on competition in the relevant market in India, (iii) Approval, rejection, or approval with modification of the Combination. a Mentification of the relevant market sph? Competition Act in India prohibits mergers or acquisitions on ch cause or are likely to cause an appreciable adverse effect etPetition in the “Relevant Market” in India. ‘Thus, the ' envisages appreciable adverse effect on competition 18 the nay ™arket in India as the touchstone. The concept of relent # is clearly defined in the Act. It consists of the relevanLL.B. Solved Papers 640 product (including goods and services) martey aNd the geographic market. . The relevant market means “the market that ma: by the Commission with reference to the relev; or the relevant geographic market or with Teference to bo markets”. The Act lays down the factors, any one or all o i the shall be taken into account by the Commission while definin, ; relevant product/ geographic market as the case may be 8 the Relevant product market is defined in of products. It means “a market comprisin, ‘ant Product Mingy by the consumer, by reason of characteri; oducts of services, their prices and intended use.” Relevant Seographic market is defined in the Act in terms of “the area in which the conditions of competition for Supply of goods or provision of services or demand of 800ds or services are distinctly homogenous and can be distinguished from the conditions Prevailing in the neighbouring areas.” ct, Which are as follows:— (a) actual and Potential ], in the Market; (b) extent of barriers to entry into the market; (c) level of concen: tration in the market; (d) degree of coy ntervailing Power in the market; , (©) likelihood that the Combination would result it ei Parties to the combination being able to significantly *" Sustainably increase Prices or profit margins; cet © extent of effective “Ompetition likely to sustain in a co (8) extent to Which substitutes are available or are likely be available in the market; level of competition through importsy a) | ytition Ue cont ) markets or enterpri combination; onl are, in the relevant: market: , Kk ; or the persons ¢ iN a combination, i (ny i , individually and as a ji) likelihood that the combination would result in the removal of a vigorous and effective competitor or competitors in the market; (j) nature and extent of vertical integration in the market; w® possibility of a failing business; ()) nature and extent of innovation; (m) relative advantage, by way of the contribution to the economic development, by any combination having or likely to have appreciable adverse effect on competition; (n) whether the benefits of the combination outweigh the adverse impact of the combination, if any. (iii) Approval, Rejection or Approval with Modification of the Combination In its review of a proposed combination, the Competition Commission of India will either: (a) clear the merger; (b) clear the merger subject to remedies. The strict wording of the Combination Regulations, 2011 (as amended by 2012 or 2013 amendment), provides that if the adverse effect of combinations can be eliminated by suitable modifications, the CCI will propose those modifications to the parties, to be carried out within specified period. If the parties do not accept the CCI’s proposed modification, they can, within 30 working days, may submit amendments. If the CCI rejects the proposed amendments, the parties are allowed a further 30 working days to accept the CCI original proposed modification. If the parties then fail to do so, the merger will be deemed to have an appreciable adverse effect on competition; or (© Prohibit the merger if the CCI’s review reveals an remedied by ay : » effer at cannot be Ppreciable adverse effect that ca! Hing to off Modifications that the parties are able to wilLLB. Solved Payers Our, 642 en, sag Case 7 Leading Cas et Airways Combinatiyy Etihad Airways and fet " Order fi 2, 2013 November 12, 2 . 5 rf “facts: The Government of India (Gol) liberalized Facts: A Policy and set a 49% cap for foreign investments in Civi 4 fy Secor in India, In 2013, Etihad, a company incomporaiy United Arab Emirates (UAE), a national airline of UA rope in 5 P to acquire 24% in Jet, a listed company Incorporated jn Indy The proposal got approved by the Security Exchange Bons of India (SEBI), the Foreign Investment Promotion Board (Fim, and Cabinet Committee of Economic Affairs (CCEA), Thereat, the Investment Agreement, Shareholders Agreement and , Commercial Cooperation Agreement between Jet and Etihag Were submitted to CCI for its approval. Issue: Whether the proposed combination between Jot and Etihad has an Appreciable Adverse Effect on Completion (AACE) in India. Decision/Order: (i) The Competition Commission of India (CCI) first considered the issue of ‘Relevant Market’ in India. According to CC a relevant market in this case is market of international Passenger air transport based on the point of origin or point Of destination (O&D), Thus, CCI held that the relevant market in the instant cae would be pertaining to: 1. O&D from or ending in 9 cities in India to/from UAE 2, O&D from or ending in India to/from internation! destinations on the overlapping routes of the parties © the combination. (ii) After definin g the relevant market, the CCI ventured int , the CC] determines whether or not there wo"! Tlaining to such routes, = nae! shat there were 38 routes to/from Inia mt cualions where Etihad andl Jet fly and there was at le one competitor on each of Such route, Except 7 destination, Where Jet and Etihad had a combined share of more than Percent, rest all destinations had less combined share. Als? °r ion Ui 643, these 7 destinations, on 3 routes, the share of one was more than 50 percent and of the other less than 5 percent Thea CCI held that post combination change in the market shan. will not marginally alter the competition dynamics. ov (iii) Finally, ‘the ccl by majority observed that airlines alliance results in improving and expanding services and thereby inducing competition in that sector. It also postulated that the proposed combination may pave way for other similar combination by other stakeholders and thereby rising competition in the sector. comp Therefore in the light of the abovementioned reasoning and observations, CCI concluded that the proposed combination is not likely to have AAEC in India and therefore the combination was approved. Sun Pharma and Ranbaxy Combination, Order dated May 4, 2016 Facts: The Competition Commission of India (CCI) received a notice from Sun Pharmaceuticals Industries Limited and Ranbaxy Laboratories Limited in relation to the merger of Ranbaxy into Sun Pharma. The CCI on the basis of combined market share of the parties, incremental market share as a result of the proposed combination, market share of the competitors, number of significant players in the relevant market etc., prima facie formed an opinion under section 29(2) of the Act that the proposed combination is likely to have an appreciable adverse effect on competition and accordingly directed Sun Pharma and Ranbaxy to publish details of the combination within ten working days for bringing the combination to the knowledge or information of or likely to be affected by such the public and persons affected combination.” The parties were then required to respond to the objections to the CCI. Issue: Whether proposed appreciable adverse effect on Competit Decision/Order: () The Competition Commission of India (C the parties are engaged in the manufacture. s ca of various pharmaceutical products including forenulations’ Medicines and Active Pharmaceutical Ingredients | which constituted a separate relevant product ma combination is likely to have tion in India? CI) noted that both ale and marketing,UD. Solved Pay, oo Seng, ow “CI defined the relevant POC nag, : Accordingly, C on the basis of substitutability, for sey on molecules, S lation. / fort ved that there are horizontal overlaps “en (ii) CCI obey th the markets for formulations aS Well ag Aci parties in as Ingredients (APIs) as both the ties ss ce manufacturers (ie, proscers of Ba primarily gene ator drugs) with a smal number o, licens copies of origin. molecules. commission noted that both parties sold APIg to thi e Ce issit ted that both par : i, a ts ies and thus the horizontal overlap raised no Substantiy parties an , competition concerns. (iv) Similarly, the vertical integration Post-merger for sal iv) ; le of APIs that were man: ufactured and sold by the Parties Was * books ang re Cords that m Statute, Tules, to . suant ust be retained purst regulations oy Ordinances; andPr l wifion co eneral books of account and books of original entry that au AS * Bintan the parties’ permanent accounting or tax records qhe merger Will take effect after the divestment. A period of «ix months has been granted for the divestment to take place. }f the process takes more than six months, a subsequent cecond divestment period of four months will be granted. The Commission directs that the proposed merger must not take effect before the parties divested of the specified products. PVR and DT Cinemas Combination, Order, CCI Order dated 4 May, 2016 Facts: The Competition Commission of India received a notice from PVR Limited relating to acquisition of DT Cinemas by PVR Limited. In terms of section 29(2) of the Act the CCI prima facie formed an opinion that the combination is likely to have an appreciable adverse effect on competition and CCI directed PVR to publish details of the combination for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected by such combination. (vii) Issue: Whether proposed combination is likely to have appreciable adverse effect on Competition in India? Decision/Order: (i) The CCI first defined the Relevant Product Market and held that for the purposes of the said combination the relevant product market will be “market for multiplex theatres and high- end single screen theatres”. (ti) As regards the Relevant geographic market, the CCI observed that the consumer prefer to view films in nearby areas and would choose among the available nearby theatres. Thus, the Delhi NCR market can be divided into the following distinct Beographic markets viz., South Delhi, North, West and Central Delhi, East Delhi, Gurgaon, Ghaziabad, Faridabad, _ NOIDA and Greater NOIDA. (ii) For assessing the Appreciable Adverse Effect on Competition (AAEC) the CCI referred the relevant geographic market and observed . as follows: Chandigarh: The CCI noted that in Chandigarh, the post Sombination market share would be 36.7% with an incrementLL.B. Solveg P “apers—y, of 6.7%, When upcoming market entries are Sen, account, the incremental market share ig onl ayken not significant. Further, there are 4 amber of cg hich with significant market share in Chandigarh, Petit, Proposed combination is not likely to have AAR Nee the market of Chandigarh. C in * North, West and Central Delhi: The CCT no} ay North, West and Central Delhi, the Post combination 2 in share would be 53.3% with an increment of 6.6%, Proposed combination is likely to have AAEC in of North, West and Central Delhi, Market * NOIDA: The CCI noted that in NOIDA, the post comb market would be 53.6% with an increment of 10.1% the market of Noma. Following the commitments, the CCI was of the opinion i ‘© competition Concerns j ee adequately alleviated. et aie tion 1%, Gurgaon: The CCInoteg that in Gurgaon, the post combina market share would be $3.2% with an increment of 21-1" which is Significant. Fury er, the next bigeest competitors have a market Share of 16.4% ang 14.8% erent and hencyr geo Law ONT may not constitute adequate competitive constraint. Further, iW efficiencies being claimed through the combination are pot because of the combination. There is a likelihood that the combination would result in sustained/significant increase in competitive prices in the absence of effective competition. The CCI was of the view that the proposed combination is likely to have AAEC in this relevant market. PVR submitted a commitment that it shall terminate its agreement with Reach Promoters Pvt. Ltd. for the development of a multiplex with 7 screens in Airia Mall, Gurgaon which is scheduled to be completed by 2017. PVR shall also not acquire any direct or indirect influence/ownership over a Airia Mall, Gurgaon for a period of five years from the date of termination of notice as above. PVR shall not open any new screens for a period of 3 years from the date of completion of the proposed combination in the market of Gurgaon. Following the commitments, the CCI was of the opinion that the competition concerns in the relevant market would be adequately alleviated. South Delhi: The CCI noted that in South Delhi, the post combination market share would be 79.4% with an increment of 41.2%, which is significant. Further, the next biggest competitor shall have a market share of 12.5%, respectively, and hence may not constitute adequate competitive constraint. Further, any efficiencies being claimed through the combination are not because of the combination. There is likelihood that the combination would result in sustained / significant increase in competitive prices in the absence of effective competition. The CCI was of the view that the Proposed combination is likely to have AAEC in this relevant market. PVR submitted behavioral commitments such cap on ticket Prices, cap on food and beverage prices, quality commitments, &xpansion freeze and commitment with distributors. However, the CCI by its majority opinion held that the havioral commitments offered would not adequate 10 alleviate competition concerns from this relevant market. urther, such behavioral commitments would be difficult 10i PLB. Solved Pape formulate, implement and monitor & run the market distortions. The majority opinion or the COOL Creag, the competition concerns would only be alent CCl "is asked to divest the screens belonging to DUS ate submitted a commitment. Teafte, Pye The Commitments were accepted by the : divestiture of DT Savitri and DT Saket assets from pn de of the proposed combination. PVR shall also not acg\* direct or indirect influence ownership ovor Dr giwite any DT Savitri assets for a period of five years. PVR opct open any new screens for a period of S years WR, the a, of completion of the proposed combination in the marke of South Delhi. Following the commitments, the Coy tt of ibs opinion that competition concerns in ‘M, relevant market would be adequately alleviated. Thue te Ssopee combination is approved subject to the commitments as risk of Was November 12, 2013 the Government of India (Gol) liberalized its FDI Policy and set a 49% cap for foreign investment in Civil Aviation Sector in India. In 2013, Etihad, a company incorporated in the United Arab Emirates (UAE), a nationnt airline of UAE, Proposed to acquire 24% in Jet, a listed company incorporated in India. Etihad is wholly owned by the Government of Abu Dhabi and is primarily engaged in the business of international air Passenger transportation services, commancint holiday services and cargo services. It is also stated to hold 29.21 percent equity in Air Berlin; 40 percent equity in Air Seychelles; 10 percen! equity in Virgin Australia and 29 Percent equity in Aer Lingus: Jet on the similar lines, is primarily engaged in the business of providing low cost an full service scheduled air passens' 1 intenance, transport service to/from India along with cargo, maintena SB) and EBD. the Foreign Investment Promotion Board (FIPB) fr, Garinet Committee of Economia Affairs (CCEA). Therealtet and the Investment Agreement, Shareholders Agreement uhad Commercial Cooperation Agreement between Jet amwa 1 sion La a) “ qubmitted to CCL for its approval, The issue before CCI was wert por the proposed combination between Jet and Etihad has wel spreciable Adverse Effect on Completion (AACE) in India. nel observed as follows:— jy The Competition Commission of India first considered the issue of ‘Relevant Market’ in India. According to CCI, a relevant market in this case is market of international assenger air transport based on the point of origin or point of destination (O&D). Thus, each such O&D constituted a different route, and hence each different route, constituted a different relevant market. To ascertain relevant market following points were considered: . Direct and Indirect flights between O&D being substitutable. Indirect flights by competitor between O&D_ being substitutable. . Different classes of passengers, and inflight services rendered to different classes, being substitutable. np! com pe ~ . Time and price sensitive passengers (Business /Holidays). » . Etihad being not operating in domestic (Indian) aviation sector and India’s open skies policy in respect of international air cargo transportation. Thus, CCI concluded that the relevant market in the instant case would be pertaining to: 1. O&D from or ending in 9 cities in India to/from UAE. 2. O&D from or ending in India to/from international destinations on the overlapping routes of the parties to the combination. (ii) After defining the relevant market, the CCI ventured into ascertaining, whether or not there would be any AAEC Pertaining to such routes. CCI stressed upon the relevancy of trans-boundary competition, as routes were international, while ascertaining AAEC through this proposed combination. i It was observed that there were 38 routes to/from India to other destinations where Etihad and Jet fly and there was at least one competitor on each of such route. Except 7 destinations, where Jet and Etihad had a combined share ot More than 50 percent, rest all destinations had less combine a; Iso of these 7 destinations, on 3 route, th share. 0 Sha other one was more than 50 percent and of the es 5 percent. Thus, post transaction change in the * tha, share was observed, not to marginally alter thy com dynamics. el However, CCI observed that when Considering the nm effects, the assessment must go beyond the O«D and consider potential network effic:, ~< the Prop combination. It was noted that the complementary sed routes of Jet and Etihad makes the network effects Stronger Hubs, increased access to gates, slots and other infrastructy, interfaces that link markets. Competition was observed 4, be increasing among systems rather than on Point Ogp pairs. Therefore, high market shares of Jet (India) and Elhag (Abu Dhabi), in their respective hubs, do not imply lack of competition. Q.6. (a) What is the composition of the Competition Commission of India? Write a critical note on duties of the Competition Commission of India. (10) (b) What is the leniency accorded to anyone who provides information on any anti-competitive agreement? Explain with the help of relevant Provisions and CCI order. (10) Ans. 6. (a) Section 7 of the Act empowers Central Government t0 tablish Competition Commission of India, Section 8(1) of the Act provides that the Commission shall consist of a Chairperson and not less than two and not more than six other Members !° be appointed by the Central Government. Duties of the Competition Commission of India [Section 8] Section 18 of the Act Provides for the duties of Commission It provides that the Commission shall have following duties~ (i) eliminate Practices having non (ii) Promote and sustain (iii) protect the adverse effect on compe! competition, interest of consumers, andonl yre freedom of trade carried on by other participants ens Go) parts in India i iso tO section 18 further provides that the commission . lecharct for the purpose of discharging its duties or performing ne tions under the Act, enter into any memorandum or its cement with the prior approval of the Central Government ang DP farcionté . wy agency of any foreign country, with 7 ans. 6. (b) Leniency programme is a type of whistle-blower protection, . an official system of offering lenient treatment to a cartel inember who reports to the Commission about the cartel. It is a protection to those who come forward and submit information honestly, who would otherwise have to face stringent action by the Commission if existence of a cartel is detected. Parties wailing the leniency programme are rewarded by a reduction {or complete amnesty from penalty in exchange for their help in discovering the cartel. Section 46 of the Act, provides for leniency provisions. To effectuate the leniency programme, the Commission has made Competition Commission of India (Lesser Penalty) Regulations, 2009. Conditions for Leniency The applicant must: ~ Provide the information before the receipt of the report of investigation directed under section 26 of the Act; ~ Provide vital disclosure in respect of violation under section 3of the Act. Vital disclosure means full and true disclosure of information or evidence by the applicant to the Commission, Which is sufficient to enable the Commission to form a Prima facie opinion about the existence of a cartel or which helps ‘to establish the contravention of the provisions of Section 3; <¢28e to further participate in the cartel from the time of its 'sclosure unless otherwise directed by the Commission; ene Provide all relevant information, ™ay be required by the Commis documents and evidence, ion;LLB. Solved py Persp, Curt, Y ANA eye “d and other Proceeding Defy, ne ~ cooperate genuinely, fully, continuously throughout the iny estigation the Commission; and ~ Rot conceal, destroy, manipulate or documents in any manner, Temove th, vhic © re Which may Contribute evan establishment of a cartel, 0 the The reduction in monetary following situatior Penalty \ ii] depeng — — the stage at which the applicant comes fory, ard wig disclosure; h the — the evidence already in Possession of the C — the quality of the information Provided by ¢ — the entire facts and circumstances of the ¢ Procedure for Lesser Penalty OMMission; he applic Ant; ang ‘ase. ‘Sulations lesignated retary of the Commission). Priority status of the nvey the same » mere acknowledgement shall not Period as extende forfeit its claim fo: lesser penalty, ‘d by the Commissio, n, the applicant may T priority status and the benefit of grant of — The date and time of Teceipt of the application by the Commission shall be the date and time as recorded by the designated authority, = Uns the Teen Submitted by the frst applicant has bee" ‘ated, the i ea ommisaiot® POX! applicant she Not be considered by #8 ae continous mn 2Peration entitles the Commission af 5 Cation vidi, es Rearing to that applicant’? Pfoviding due opportunity ay pst 653 after rejection of the priority: status of first appellant, the subsequent applications shall move up in order os priority for grant of priority status by the Commission. The decision of the Commission of granting, or rejecting, the application for lesser penalty shall be communicated to the applicant Leading Case in Re: Cartelization in respect of tenders floated by Indian Railways supply of Brushless DC Fans and Other Electrical Items, Sue Moto Case No. 03 of 2014 Facts: The Competition Commission of India (CCI) initiated a suo moto inquiry based on an information received by the Central Bureau of Investigation, alleging cartelization among three firms, namely Pyramid (Opposite Party 1, in short OP1), Kanwar Electrical (Opposite Part 2, in short OP2) and M/s Western Electric and Trading Company (Opposite Party 3, in short OP3). Based on this, the CCI passed a prima facie order directing the Office of the Director General (DG) to investigate. Following the receipt of a notice from the DG, Pyramid filed a leniency application under section 46 of the Competition Act read with the Competition Commission of India (Lesser Penalty) Regulations, 2009) (Lesser Penalty Regulations). In support of its leniency application, Pyramid argued that it played a vital role in explaining the functioning of the cartel to the DG, and had marshaled cogent evidence which disclosed the modus operandi of the cartel in detail, providing the “missing links” in the DG’s investigation. Pyramid also stated that it (a) would continue to Co-operate with the CCI/DG; (b) had ceased further participation in the cartel; and (c) had not taken any steps to coerce others to Participate in the cartel. In contrast to Pyramid’s stand, the other Opposite Parties contested the existence of the cartel altogether. Issue: Whether there was existence of the cartel? Decision/Order: {) The Competition Commission of India (CCI) after considering the investigation report and the supplementary Teport prepared by the DG and the submissions of the Ops, Concluded that the (OPs) had shared the market by way of allocation of tenders of Indian Railways for Brushless DC fansin. | 654 LLB. Solved Papers—Fourty Serestey amongst themselves under an agreement/arrangement and had indulged in bid rigging/collusive bidding contravening the provisions of section 3(1) read with section 3(3)(c) and 3(3)(d) of the Competition Act. (ii) Section 3(3) of the Competition Act, 2002 lists certain types of horizontal agreements including cartels, which are presumed to cause appreciable adverse effect on competition in India. An enterprise, which was or is a member of » cartel, may apply for reduction of penalty under section 46 of the Competition Act and the Lesser Penalty Regulations (LPR). (iit) Section 46 of the Competition Act provides for imposition of (iv) lesser penalty on a member of a cartel who makes full, true and vital disclosure in Tespect of the cartel. Under the Lesser Penalty Regulations, the first party to make such disclosure to the CCI can benefit from a reduction in Penalty of up to 100%, if the disclosure enables the CCI to either (a) from a prima facie opinion regarding the existence of a cartel, or (b) establish a cartel in a matter under investigation where the DG/CCI did not have sufficient evidence to do so as the time of the application. Subsequent applicants for lesser penalty may also secure up to 50% or 30% reductions, respectively, if they disclose evidence that Provides Significant added value to the evidence already in possession of the CCI/DG. Further, a leniency applicant must co-operate until the completion of the Proceeding before the CCI/DG, in order to secure a reduction in Penalty. In this case, Pyramid (Opposite Party 1, in short OP1) the Applicant, has filed an application under section 46 of the Competition Act, read with regulation 5 of the Lesser Penalty investigation of the DG. The CCI noted that the applicant was the first and only Party to accept the existence of a cartel/bid rigging in tenders for railways for Brushless DC Fans, The evidence submitted by OP 1 also supported the evidence provided by CBI and Played a significant role in then the modus Sperandi of the cartel. The CCI noted aclnonia’ oes with the Cooperation offered by OP1 and Bed that the evidence and cooperation provided byy sagt it have strengthened the CCI's investigation in establishing aw 655 in existence of a cartel. However, more specifically, the CCI has stated in its order that at the time of submission of the Lenience Application, the CCI already possessed the e-mail evidence furnished by the CBI, on which the case was premised. (v) In terms of determining the appropriate reduction under the Lesser Penalty Regulations (LPR), the CCI emphasized that although OP1 was first to disclose the existence of the cartel, the Leniency Application was submitted at a later stage in the investigation. Considering these factors, the CCI granted a 75% reduction in the penalty to the applicant, as opposed to the maximum of 100% that may otherwise have been available to it. Q.7. In the light of Telefonaktiebolaget L.M. Ericsson v. Competition Commission of India, W.P. (C) 464/2014 & CM Nos 911/2014 and 915/2014, discuss the interface between Patent Act, 1970 and the Competition Act in so far as anti-abuse provisions are concerned. Also reflect upon how court reconciled the difference between Patent Act and Competition Act. 7 (20) Ans. 7. Section 3(5)(i) of the Acts provides that the provisions of the Act (i.e. adverse effect of section’ 3) will not restrict “the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him” under the various intellectual property rights statutes like:— (@) The Copyright Act, 1957; (b) The Patents Act, 1970; (c) The Trade and Merchandise Marks Act, 1958; ) (€) The Geographical Indications of Goods (Registration and Protection) Act, 1999; (€) The Designs Act, 2000; ( The Semi-conductor Integrated Circuits Layout-Design Act, 2000.LL.B. Solved Papers—Fourts So, section 3(5) saves the rights of proprietor of any intel} property right listed in it to restrain the infringement aaa those rights regardless of section 3. any of The effect of section 3(5) is that the entire section 3 d with prohibition of anti-competitive agreements will Rae ween Pine owner of any of the intellectual property rights uric, the enactments set out in section 3(5)(a) to (f) does anything ie exercise of his right to restrain the infringement of any of thove rights, or imposes reasonable conditions as may be necessary for the protection of any of those rights. ° a Thus, intellectual property right holder as identified under the aforesaid Acts may impose conditions on their licensees in exercise of their rights granted under a patent issued to them However, patentees or owners of any other intellectual property rights cannot directly or indirectly interfere with the competitive impose any condition, which is not essential to process, or cannot i d may have adverse impact on competition. protect their IPRs an Leading Cases Telefonaktiebolaget Commission of India & Anr., Telefonaktiebolaget L.M. Ericsson is is the registered owner 3G technology and Edge LM. Ericsson (PUBL) v. Competition Writ Petition (Civil) No. 464/2014 a Swedish Facts: of eight Multinational company and patents pertaining to AMR technology, technology in India. It is amongst the largest patent holders 1n the mobile phone industry along with Qualcomm, Nokia and Samsung. The patents owned by Ericsson are considered to be Standard Essential Patents (SEP’s). Standard E nntial Patents art of a technical standard that are those patents that form a p ; é must exist in a product as a part of the common design of such / SED’s fot cement { Now p-oducts. The dispute in the present case which Ericsson had tried to negotiate + (PLA) with Micromax and Intex on Fi Discriminatory (FRAND) terms but its efforts were unsuccess!" Subsequently, Fricsson initiate infringement proceedings allegins that the products, manufactured and dealt with by Micron’ and Intex wiolate its patents and that Ericsson was entitled © royalties in respect of the SEPs held by it, In response to the pertains to Ericssons a Patent Licencing Ag" ‘air Reasonable ance ition UE 657 ca ament suits, both Micromax and Intex filed complaint ng a, titi ‘ Sci, ; a ’ ai the Competition Commission of India (CCl) alleging abuse fore - 5 ion by ef nant position b on on account of it demanding, an oi dot yalty from Micromax and Intex. The CCI noted that the unfatt adopted by E son were discriminatory and contrary AND terms, and consequently, directed the Director sal (DG) (0 investigate any violation of the provisions of the Srnpatition Act. Aggrieved by this order, Ericsson filed a writ gation before Delhi High Court and contended as follows:— Gent contentions of Ericsson son contended that owing to the special nature of the Indian Patents Act, licensing practices including claim of royalty by a patentee in relation to patents is outside the scope of the Competition Act, 2002; (2) Ericsson does not come under the purview of an ‘enterprise’ as defined under section 2(h) of the Competition Act, in furtherance of which section 4 of the Competition Act, 2002 would not apply to Ericsson; @) Matters pertaining to the abuse of dominance/dominant position, by a patentee in respect of patent licensing, should be addressed under the Parents Act and not under the Competition Act, 2002; (4) Competition Commission of India (CCI) had no jurisdiction to determine the reasonableness of the royalties for patented technologies or to entertain any complaint in that regard particularly when a suit on the same subject matter was pending before this Court; Confutation by CCI, Micromax & Intex (1) The writ is not maintainable pursuant to the decision of the Supreme Court in Competition Commission of India v. Steel Authority of India Ltd., where it was held that an order under Section 26(1) of the Competition Act was in the nature of a show cause notice (administrative, not judicial) and hence no writ petition was maintainable; ©) The provisions of the Competition Act were in addition to and not in derogation of any other Jaw and section 60 of the Ompetition Act expressly provided that the provisions of the Competition Act to have effect notwithstanding anythingSS LLB. Solved Papers ‘OUFtH Sey inconsistent contained in any other law. Act to prevail over Patents Act; "v Thus Compe, 3) There wa in the P. (3) Pacha ae nothing in the Patents Act which Would pliedly or expressly expel CCI's jurisdiction "ther Issue: Whether Competition Commissi . ‘ ission of > jurisdiction to entertain complaints of Mieromay tT (CCH hag the Competition Act. and IMEX unde na Decisions Delhi High Court held that orders passed p, vere not obstinate or without jurisdicti y Gols jout jurisdiction and observed 3, (i) Ericsson is an ‘enterprise’ within the meaning of section 2(h) of the Competition Act as it possesses a large number of patents and engaged in developing technologies and acquiring patents which fall under the wide definition of ‘goods’ under the Sale of Goods Act, 1930, and movable property under General Clauses Act, 1897. Therefore, the proceedings initiated by the CCI for violation of section 4(1) of the Competition Act could not, at the threshold, be held to be without jurisdiction on account of Ericsson not being an ‘enlerprise’ within the meaning of section 2(h) of the Competition Act. (ii) The Patents Act is a special act vis-a-vis the Competition Act. However, since there is no irreconcilable repugnancy or conflict between the Competition Act and the Patents ‘Act. Thus, in absence of any irreconcilable conflict between the two legislations, the jurisdiction of CCI to aoe complaints for abuse of dominance in respect of Paten rights cannot be ousted. (iii) The remedies provided section 27 of the Competition ae for abuse of dominant position are materially different from the remedies as available under section 84 of ee Patents Act. The remedies under the two enactments ae not mutually exclusive and grant of one is not destructive of the other. 1 (iv) In the absence of any irreconcilable conflict Ce the two legislations, the jurisdiction of CCI to entertal f patent complaints for abuse of dominance in respect 0} rights could not be ousted.y ¢ bh syptiton Late (v) The contention that disputes between the P s arties being the subject matter of pending s could not be entertained by CCI, is rejected. The proceedings under the Competition Act before the CCI are not in the nature of a private lis and that the proceedings in the suits filed by Ericsson and the proceedings before CCI are not mutually exc is not necessary that an adverse finding against by CCI would necessarily result in the grant of relief as prayed for by Intex or Micromax, (vi) The scope of enquiry before CCI would obviously be limited to whether Ericsson has abused its dominant position and, if so found, CC! may issue ordei section 27 of the Competition A. as contemplated under The question whether there is any abuse of dominance is solely within the scope of the Competition Act and a civil court cannot decide whether an enterprise has abused its dominant position and pass orders as are contemplated under section 27 of the Competition Act. (vil (viii) Merely because certain relie! sought by Micromax and Intex before CCI are also available in proceedings under the Patents Act also does not exclude the subject matter of the complaints from the scope of the Competition Act. An abuse of dominant position under section 4 of the Competition Act is not a cause that can be made a subject matter of a suit or proceedings before a civil court. (ix) The CCI cannot be faulted for proceeding on the basis that Ericsson holds the SEP's that it asserts it holds. At any rate, Ericsson cannot be heard to complain against CCI proceeding on such basis. The Court held that a direction passed under section 26(1) of the Competition Act to the DG is not outside the scope of judicial scrutiny under Article 226 of the Constitution of India. (x) The Court reasoned that an order under section 26(1) of the Act, after forming a prima facie opinion, has the effect of subjecting Party to an investigative process. There may be a scenario where Ki Order is ex facie tenacious or without the application of mind. ditionally, in a scenario where such an order is not passed, "emedy by way of appeal is only available to the informant and| a LLB ved Papers—Fourth ¢ 60 not to the party under investigation. Thus, an order triste implications has to be amenable to the writ jur with such a High Court isdiction of However, the Court also added that the scope of of the directions issued under section ae 26(1) of the review ‘Act is limited and does not extend to exami amining Competition the merits of the allegations. Q. 8. Write short notes on any two of the following: (a) Relevant Market (b) Competition Advocacy () Drawbacks under repealed MRTP Act, 1969. (10410) Ans. 8. (a) 1. Relevant Market Relevant market is the smallest set of products in a market which is to be investigate for anti-competitive behaviour. The Competition Act, 2002 defines relevant market in the following way: "Relevant market" means the market which may be determined by the Commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets. rket [Section 2(0] ts or services which are Relevant Product Ma le by the consumet, by A market comprising all those produc! regarded as interchangeable or substitutabl reason of— (a) characteristics of the products or services, (b) their prices, and (c) intended use. Section 19(7) provides that the Commi: determining the ‘relevant product market’ have due reg" or any of the following factors, namely:— (a) physical characteristics oF end-use of goods; (b) price of goods or services; ission shall, while dtoal (c) consumer preferences;y Law 661 jy exusion of in-house production; « 5 existence Of specialised producers ws 1) classification of industrial products. Nea Relevant Geographic Market [Section 2(5)] | market comprising the area in which the conditions or smpettion for) supply of goods, or (b) provision of services, “ 0 demand of goods or services, are— « Distinctly homogenous, and + can be distinguished from the conditions prevailing in neighbouring areas. section 19(6) of the Act, provides that, the Commission shall, while determining the "relevant geographic market” shall have vue regard {0 all or any of the following factors, namely:— Commission shall, while determining the 'relevant geographic market’ have due regard to all or any of the following factors, namely— (a) regulatory trade barriers; (b (c (d) adequate distribution facilities; (e) local specification requirements; national procurement policies; transport costs; (f) language; (g) consumer preferences; (h) need for secure or regular supplies or rapid after sales services. Ans. 8. (b) The International Competition Network (ICN) defines competition advocacy as “activities conducted by the competition authority, related to the promotion of a competitive environment, for economic activities, by means of non-enforcement mechanisms, mainly through its relationships with other governmental entities and by increasing, public awareness to the benefits of competition. ha The concept of competition advocacy is of recent origin Ving gained its acceptance and prominence in developed bh