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8th NLUJ Antitrust Moot, 2017

Best Team Memorial - Appellant
BEFORETHE COMPETITION APPELLATE TRIBUNAL OF BOHEMIA AT RIVERDALE

[Appeal filed under Section 53B of the Bohemian Competition Act, 2002]
Appeal No. 1/2017
Dylon Nutricia . . Appellant;
Versus
Adiva Regina Cattle Feed Limited . . Respondent 1.
Brick Cattle Feed Limited . . Respondent 2.
Cautious Cattle Feed Limited . . Respondent 3.
Detro Cattle Feed Limited . . Respondent 4.
Competition Commission of Bohemia . . Respondent 5.
Mother Care and Child Care . . Respondent 6.
Retailer's Association for Milk . . Respondent 7.
MEMORANDUM FILED ON BEHALF OF THE APPELLANT
THE EIGHTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2017
TABLE OF CONTENTS
TABLE OF CONTENTS II
INDEX OF AUTHORITIES V
TABLE OF ABBREVIATIONS XIV
STATEMENT OF JURISDICTION XVI
STATEMENT OF FACTS XVII
ISSUES FOR CONSIDERATION XX
SUMMARY OF ARGUMENTS XXI
WRITTEN SUBMISSIONS 1
I. Whether Dylon is dominant and can be held liable for contravention of Section 4(2) of 1
the Bohemian Competition Act, 2002.
A. The relevant product market is the market for ‘processing and sale of milk’. 1
i. Raw/conventional milk and packaged milk are substitutable from the demand-side. 2
a. Raw/conventional milk and packaged milk have the same end-use. 2
b. Consumer preference for raw/conventional milk and packaged milk is uniform. 4
c. The milk market consists of differentiated products. 5
ii. Supply-side substitutability not considered. 6
B. In arguendo, if the relevant market is ‘processing and sale of packaged milk’, Dylon is 6
still not in a dominant position.
i. Market share of an enterprise is not conclusive of dominance. 7
ii. The size and importance of other competitors in the market is adequate to impose 7
restraints on Dylon.
a. Forward vertical integration of Anmol. 8
b. Brand image of Dairy Fresh. 8
iii. There are no barriers to expansion. 8
C. Dylon has not abused its dominant position. 9
i. The price of the product is commensurate with its economic value. 9
ii. The current case falls within the exception to Section 4(2) of the Act. 10
iii. Price regulation in a self-correcting market would be erroneous. 11
II. Whether Adiva, Brick, Cautious and Detro constitute a single economic entity with Acme 13
as their parent.
A. The parties are not amenable to the control of Acme. 13
B. The parties did not pursue common economic interests as the parent does not 16
exercise control over them.
C. The parties are capable of conspiring against each other. 16
III. Whether Adiva, Brick, Cautious and Detro are liable for contravention of Section 3(3) of 19
the Bohemian Competition Act, 2002.
A. The R&D Agreement is anti-competitive in nature. 19
B. Adiva, Brick, Cautious and Detro have engaged in cartelisation. 20
i. There is an agreement between the parties. 20
ii. The parties have colluded amongst each other. 21
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a. Presence of communication evidence. 22

b. Presence of economic evidences. 24
iii. The conduct of the parties has caused AAEC. 26
C. The parties are a group and are abusing their dominance. 27
IV. Whether RAM is entitled to claim compensation under Section 53N of the Bohemian 29
Competition Act, 2002.
A. The application for compensation is not maintainable. 29
B. RAM has no standing to bring a representative suit under Order 1 Rule 8 of the CPC. 30
i. The direct purchasers and end-consumers have conflicting interests. 30
ii. No representative action can be brought for recovery of compensation. 32
iii. The defence of passing on is available to Dylon against RAM. 33
iv. RAM has not suffered any actual harm. 33
V. Whether the imposition and quantum of penalty imposed by the CCB is sustainable. 35
A. Relevant turnover should be considered. 35
B. Quantum of penalty should be lower. 36
i. Existence of mitigating circumstances. 37
ii. Absence of aggravating circumstances. 37
PRAYER XXV
INDEX OF AUTHORITIES
CASES
ABCIL, Combination Registration No. C-2015/03/256. 16
Adidas/Reebok, Case No. COMP/M.3942. 4
AEG Telefunken v. Commission, [1983] ECR 3151. 16
AIOCD v. CCI, Appeal No. 21/2013, COMPAT. 34
AKZO Chemie v. Commission, [1991] ECR 3359. 35
AKZO Nobel NV v. Commission, [2007] ECR II-5049. 19
Alkali and Chemical Corporation of India Ltd. v. Bayer (India) Ltd., Case No. 3/2011, CCI. 31
Amit Jain v. DLF Limited, Appeal No. 20/2011, COMPAT. 36
Attheraces Limited v. The British Horseracing Board Limited, [2007] E.W.C.A. Civ. 38. 12
B and Reynolds, [1987] ECR 4487. 18
Bachan Singh v. State of Punjab, (1982) 3 SCC 24 45
BCL Old Co. Ltd. & Ors. v. Aventis SA & Ors., [2005] CAT 2. 41
Belaire Owner's Association v. DLF Limited, Case No. 19/2010, CCI. 8
Bell Atlantic Business Systems Services v. Hitachi Data Systems Corp, 849 F. Supp. 702. 21
Blackburn v. Sweeny, 53 F3d 825 33
British Leyland Public Limited Company v. Commission, [1986] ECR 3263. 11
Buccaneer Energy (USA) Inc. v. Gunnison Energy Corporation, 2017 WL 460969. 2
Builders Association v. Cement Cartel, Case No. 29/2010, CCI. 30
Cine Prakashakula Viniyoga Darula Sangham v. Hindustan Coca Cola Beverages Pvt. Ltd, Case 5
No. RTPE 16/2009, CCI.
Coca-Cola/Amalgamated Drinks, Case No. IV/M.794. 4
Columbus Drywall & Insulation, Inc. v. Masco Corp., 2009 WL 856306 29
Competition Commission v. Southern Pipeline Contractors Concrite Walls (Pty) Ltd, 43
23/CR/Feb09, Competition Commission of South Africa.
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752. 22
Courage Ltd v. Bernard Crehan and Bernard Crehan v. Courage Ltd & Ors. Case C-453/99, 36
European Court of Justice.
DSM Desotech Inc. v. 3D Systems Corporation, 749 F.3d 1332. 6
Emerald Supplies Limited & Southern Glass Produce v. British Airways PLC, [2010] EWCA Civ 39
1284.
Express Industry Council of India v. Jet Airways, Case No. 30/2013, CCI. 31
Film & Television Producers Guild of India v. MAI, Case No. 37/2011, CCI. 28
Friesland Foods/Campina, Case No. COMP/M.5046. 6
FrieslandCampina/Zijerveld & Veldhuyzen & Den Hollander, Case No. COMP/M.6722. 4
FTC v. Brown Shoe Co. Inc., 370 U.S. 294. 4
General Motors Corporation, Ford Motor Company, and Chrysler Corporation v. United States & 10
Ors., 827 F.Supp. 774.
General Motors v. Commission, [1975] ECR 1367. 11
Helicopter Support Systems v. Hughes Helicopter Inc., 818 F.2d 1530 29
Hiranandani Hospital v. CCI & Anr., Appeal No. 19/2014, COMPAT. 44
Hofmann-La Roche & Co. AG v. Commission of the European Communities, [1979] ECR 46. 8
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In Re : Alleged Cartelization by Steel Producers, Case No. RTPE No. 09/2008, CCI. 27
In Re : Cardizem Cd Antitrust Litigation, 332 F.3d 896. 33
In Re : Cartelization in Respect of Tenders Floated by Indian Railways for Supply of Brushless 30
DC Fans and Other Electrical Items, Suo Moto Case No. 03/2014, CCI.
In Re : Coordinated Pretrial Proceedings in Petroleum Prods, Antitrust Litigation., 906 F.2d 29
432, 447 (9th Cir. 1990).
In Re : Neurontin Antitrust Litigation, 2013 WL 4042460. 13
In Re : Plywood Antitrust Litigation, 655 F.2d 627. 28
In Re : Polyurethane FoamAntitrust Litigation, 152 F. Supp. 3d 968. 30
In Re : Reference filed by Shri B P Khare, Principal Chief Engineer, South Eastern Railway, 30
Case No. 05/2011, CCI.
In Re : Wholesale Grocery Products Antitrust Litigation, 752 F.3d 728. 33
In the Matter of : Hyderabad Cylinders Pvt. Ltd., Appeal No. 54/2015, COMPAT. 44
Indian Jute Mills Association v. CCI, Appeal No. 73/2014 & I.A. No. 110/2014, COMPAT. 27
Inter Globe Aviation Ltd. v. CCI, Appeal No. 07/2016, COMPAT. 28
Italian Cast Glass, 1980 OJ L 383/19. 25
Just Film Inc. and Ors. v. Sam Buono, 2017 WL 510452. 39
Jyoti Swaroop Arora v. Tulip Infratech, Case No. 59/2011, CCI. 26
Kerela Film Exhibitors Association v. CCI, Appeal No. 100/2015, COMPAT. 34
Kimberly-Clark/Scott, Case No. IV/M.623. 3
M/s International Cylinder (P) Ltd. Case, Appeal No. 21/2012, COMPAT. 34
M/s. All India Motor Transport Congress v. IFTRT, Appeal No. 60/2015, COMPAT. 28
M/s. ESYS Information Technologies Pvt. Ltd. v. IntelCorporation (Intel Inc.) & Ors., Case No. 13
48/2011.
M/s. Excel Corp Care Ltd. v. CCI, Appeal No. 79/2012, COMPAT. 43
M/s. Gulf Oil Corporation Ltd. v. CCI & Ors., Appeal No. 81/2012, COMPAT. 45
Markt & Co. Ltd. v. Knight Steamship Co. Ltd., (1910) 2 K.B. 1021. 40
MDD Medical Systems India Private Limited & Ors. v. CCI & Ors., Appeal No. 93-95/2012, 45
COMPAT.
Mohana Kurup v. CCI, Appeal No. 05/2016, COMPAT. 36
Napp Pharmaceutical Holdings Ltd and Subsidiaries, CA98/2/2001, [2001] UKCLR 597. 15
Neeraj Malhotra v. Deutsche Bank, Case No. 5/2009, CCI. 26
Orkem v. Commission, [1989] ECR 3283. 19
Perma Life Muflers, Inc. v. International Parts Corp, 392 U.S. 134. 22
Petruzzi's IGA Supermarkets Inc. v. Darling—Delaware Co., 998 F.2d 1224. 33
Premier Comp Solutions LLC. v. UPMC, 163 F.Supp.3d 268. 2
Princes/Aria, Case No. COMP/M.6249. 6
Reiter v. Sonotone Corp, 442 U.S. 330 (1979). 39
Sanjeev Pandey v. Mahendra & Mahendra & Ors., Case No. 17/2012, CCI. 5
Scandlines Sverige AB v. Port of Helsingborg, COMP/A 36.568/D3. 11, 13
Shri Ghanshyam Dass Vij v. M/s Bajaj Corp. Ltd., Case No. 68/2013, COMPAT. 34
Shri Shamsher Kataria v. Hona Siel Cars India Ltd. & Ors, Case No. 03/2011, CCI. 15
Shri Sonam Sharma v. Apple Inc. USA, Case No. 24/2011, CCI. 3
Siemens/Fanuc, 1984 OJ L 376/29. 25
Sponge Iron Manufacturers Association v. National Mineral Development Corporation & Ors., 8
State of Karnataka v. Sharanappa Basanagouda Aregoudar, (2002) 3 SCC 738. 45
State of New York v. Kraft General Food Inc., 926 F.Supp. 321. 4, 7
Stora Kopparbergs Bergslags AB v. Commission, [2000] ECR I-9925. 17
Suiker Unie v. Commission, [1975] ECR 1663. 26
Todorov v. DCH Healthcare Auth., 921 F.2d 1438. 33
U.S. v. Yellow Cab Co., 332 U.S. 218. 21
Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499. 28
Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499 : AIR 1989 SC 988. 31
United Brands Company & United Brands Continental BV v. Commission, [1978] ECR 207. 11
United Brands v. Commission, [1978] ECR 207. 1
United States of America v. Continental Can Co. Inc., 217 F.Supp. 761. 4
United States v. Foley, 598 F.2d 1323 29
United States v. Socony—Vacuum, 310 U.S. at 222. 32
United States v. Topco Associates Inc, 405 U.S. 596 (1972). 32
US v. Cooperative Theatres of Ohio, 825 F.2d 1367. 33
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Verizon Communications Inc. v. Law Offices of Curtis V Trinko, LLP, 540 U.S. 398 (2004). 14
Viho Europe BV v. Commission, [1996] ECR I-5457. 16
Vincenzo Manfredi & Ors. v. Lloyd Adriatico Assicurazioni SpA, In Joined Cases C-295/04 to C- 41
298/04, European Court of Justice.
STATUTES
The Clayton Antitrust Act, 1914. 29
The Code of Civil Procedure, 1908. 29
The Competition Act, 2002 (India). 1, 13, 28
BOOKS
BLACK'S LAW DICTIONARY (West, (1999) 7th ed.). 15
S M DUGAR, GUIDE TO COMPETITION LAW, (LexisNexis, Vol. 1, 6 ed., 2016).
th 25
SANJIVA ROW , CODE OF CIVIL PROCEDURE, (Universal Law Publishing, Vol. 2, 6th ed., 2017). 31, 32
ARTICLES
Adelman, Integration and Antitrust Policy, 63 Harv. L. Rev. 27, 29 (1949). 7
Ezrachi and Gilo, Excessive Pricing, Entry, Assessment and Investment : Lessons from the 11
Mittal Litigation, 76 ANTITRUST L.J. 873 2009-2010.
Herbert Hovenkamp & Christopher R. Leslie, The Firm as a Cartel Manager, 64 VAND. L. REV. 17
813, 819—20 (2011).
Huschelrath and Schweitzer, Public and Private Enforcement of Competition Law in Europe, 30
Legal and Economic Perspective, Centre for European Economic Research, ZEW Economic
Studies, Vol. 48, ISSN 1615-6781.
Hussain, Garrett and Howell, Economic of Class Certification in Indirect Purchaser Antitrust 32
Cases, The Journal of the Antitrust and Unfair Competition Law Section of the State Bar of
California, Vol. 10 No. 1, 2001.
J. Matthew Schmitten, Antitrust's Single-Entity Doctrine : A Formalistic Approach for a 16, 17
Formalistic Rule,COLUMBIA JOURNAL OF LAW & SOCIAL PROBLEMS, (Vol. 46, p. 93, Fall 2012).
John Lucey, Raw Milk Consumption-Risks and Benefits, NUTRITION TODAY, WOLTERS KLUWER 4
HEALTH, 2015.
José Engrácia Antunes, Liability of Corporate Groups : Autonomy and Control in Parent- 14
SubsidiaryRelationships in US, German and EU Law, Kluwer Law and Taxation Publishers.
(1994).
Kaushal Sharma, SSNIP Test : A Useful Tool, Not a Panacea, COMPETITION LAW REPORTS, 2011. 3
Kyle Bagwell, TheEconomic Analysis of Advertising, Department of Economics Discussion 8
Paper Series, Columbia University.
Lopatka and Page, Indirect Purchaser Suits and the Consumer Interest, 48 ANTITRUST BULL. 34
531, 2003.
Mark Furse, Excessive Prices, Unfair Prices and Economic Value : The Law of Excessive Pricing 12
UnderArticle 82 EC Andthe Chapter II Prohibition, 4 EUR. COMPETITION J. 59 2008.
Nada Ina Pauer, The Single Economic Entity Doctrine and Corporate Group Responsibility in 14, 15, 16, 18
European Antitrust Law, WORLD COMPETITION, 38(1), 179-180.
Polverino, Class Action Model for Antitrust Damages Litigation in the European Union, WORLD 31
COMPETITION LAW AND ECONOMICS REVIEW, Kluwer Law International 2007, Vol. 30 Issue 3.
Richard S. Kelly, Functional Discounts Under the Robinson-Patman Act, 40 Cal. L. Rev. 526 7
(1953).
Ronny Gjendemsjø, Erling J. Hjelmeng and Lars Sørgard, Abuse of Collective Dominance : The 28
Need for a New Approach, (2013) 36 WORLD COMPETITION, Issue 3.
Warren S. Grimes, Brand Marketing, Intrabrand Competition, and the Multibrand Retailer : 7
The Antitrust Law of Vertical Restraints, 64 Antitrust L.J. 83.
William E. Kovacic, Robert C. Marshall, Leslie M. Marx, and Halbert L. White, Plus Factors and 23, 25
Agreement in Antitrust Law, 110 MICH. L. REV. 393 (2011).
William M. Landes & Richard A. Posner, Market Power in Antitrust Cases, 94 Harv. L. Rev. 937 7
(1981).
MISCELLANEOUS
54th Law Commission Report, available at : http://lawcommissionofindia.nic.in/51100/Report54.pdf. 30
Commission Notice on a Simplified Procedure for Treatment of Certain Concentrations under Council 15
Regulation (EC) No 139/2004.
Commission Notice on the Definition of Relevant Market for the Purposes of Community Competition Law, 6
available at : http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX : 31997Y1209(01)
&from=EN.
Communication from the Commission-Guidelines on the applicability of Article 101 of the Treaty on the 19,
Functioning of the European Union to Horizontal Co-operation Agreements, available at : http://eur- 20
lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A52011XC0114(04).
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Competition Commission of India, Abuse of Dominance, available at : 28

http://www.cci.gov.in/images/media/Advocacy/AOD2012.pdf.
Council Regulation on the Control of Concentrations between Undertakings (the EC Merger Regulation), 14
2004, available at : http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX : 32004R0139.
DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses, 5,
available at : http://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf. 9
Directive 2014/104/EU Of The European Parliament And Of The Council on Certain Rules Governing 33
Actions for Damages under National Law for Infringements of the Competition Law Provisions of the
Member States and of the European Union, 2014, available at : http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX : 32014L0104&from=EN.
Google, FCA Dec. n°10-MC-01. 11
Grüne Punkt, EC Comm. Dec. 2001/463/EC. 11
Guidelines on the Method of Setting Fines Imposed Pursuant to Article 23(2)(a) of Regulation No 1/2003 37
available at : http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX : 52006XC0901(01).
rd
HDFC Securities, Retail Study, December 23 2014. 21
Luc Peeperkorn, Commission Publishes Discussion Paper on Abuse of Dominance, Directorate-General 10
Competition, Unit A-1, available at : http://ec.europa.eu/competition/publications/cpn/2006_1_4.pdf.
Media Market Definitions-Legal Analysis, Institute of European Media Law, available at : 2
http://ec.europa.eu/competition/sectors/media/documents/2005_media_market_definition_study_en.pdf.
OFT (1999), Guidelines in Relation to Chapter II Prohibition Under the UK Competition Act. 10
OFT (2012), Guidance as to the Appropriate Amount of a Penalty., available at : 36,
https : //www.gov.uk/government/uploads/system/uploads/attachment_data/file/284393/oft423.pdf, 37
[hereinafter, ‘OFT Guidelines’].
Roundtable on Excessive Prices, DAF/COMP(2011)18, OECD, available at : 12
http://www.oecd.org/daf/competition/abuse/49604207.pdf.
Roundtable on Market Definition, DAF/COMP/WD(2012)28, OECD, available at : 5
http://ec.europa.eu/competition/international/multilateral/2012_jun_market_definition_en.pdf.
Study on the Conditions of Claims for Damages in Case of Infringement of EC Competition Rules- 30
Comparative Report, Ashurst, available at :
http://ec.europa.eu/competition/antitrust/actionsdamages/comparative_report_clean_en.pdf.
TABLE OF ABBREVIATIONS
ABBREVIATION FULL FORM
AIR All India Reporter
Antitrust Bull. Antitrust Bulletin
Antitrust L.J. Antritrust Law Journal
Cal. L. Rev. California Law Review
CAT Competition Appellate Tribunal, UK
CCI Competition Commission of India
COMPAT Competition Appellate Tribunal, India
DG Director General
ECR European Court Reports
E.W.C.A. Civ. England and Wales Court of Appeal (Civil Division)
edn. Edition
Eur. Competition J. European Competition Journal
F.2d. Federal Reporter, Second Series
F.3d. Federal Reporter, Third Series
F.Supp. Federal Supplement
Harv. L. Rev. Harvard Law Review
Inc. Incorporated
K.B. King's Bench
LLP Limited Liability Partnership
Mich. L. Rev. Michelin Law Review
OECD Organisation for Economic Co-operation and Development
OFT Office of Fair Trading
PLC Public Limited Company
SC Supreme Court
SCC Supreme Court Cases
U.S. United States Reports
UK United Kingdom
UKCLR United Kingdom Competition Law Reports
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VAND. L. REV. Vanderbilt Law Review

Vol. Volume
WL Westlaw
STATEMENT OF JURISDICTION
The Appellant has approached the Hon'ble Competition Appellate Tribunal of Bohemia under Section 53B of
the Bohemian Competition Act:
“Section 53B. Appeal to Appellate Tribunal —
(1) The Central Government or the State Government or a local authority or enterprise or any person,
aggrieved by any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal
to the Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a
copy of the direction or decision or order made by the Commission is received by the Central Government
or the State Government or a local authority or enterprise or any person referred to in that sub-section and
it shall be in such form and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty
days if it is satisfied that there was sufficient cause for not filing it within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the
appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or
setting aside the direction, decision or order appealed against.
(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to
the appeal.
(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as
expeditiously as possible and endeavour shall be made by it to dispose of the appeal within six months
from the date of receipt of the appeal.”
STATEMENT OF FACTS
The Parties
• Dylon Nutricia (Dylon) is a leading world nutrition chain that has recently set up business in Bohemia. It is
known to use advanced technology in its dairy farms and is a patent holder of a unique tetra packaging for
milk which has an extended shelf-life.
• Adiva Regina Cattle Feed Limited (Adiva), Brick Cattle Feed Limited (Brick), Cautious Cattle Feed Limited
(Cautious) and Detro Cattle Feed Limited (Detro), are joint venture companies established by Acme, who
subsequent to their formation entered into a Common Research and Development Agreement with each
other. Acme has more than 50% shareholding in each of these joint venture companies.
• Competition Commission of Bohemia (CCB).
• Mother Care and Child Care (MCC), a non-governmental organisation.
• Retailer's Association for Milk (RAM).
Factual Background
1. The Bohemian dairy market includes Anmol, Dairy Fresh Ltd., Farm Everyday, (Peer Companies) and Dylon.
They have specific elements unique to each of them and cater to a target group of end-consumers.
2. In the financial year 2015-2016, the dairy producers collectively held 75% share in the market, however
Dylon's share rapidly increased owing to a surge in the demand for its packaged milk. The collective
market share of the PeerCompanies fell to 36%.
3. In August 2012, due to an unfortunate incident involving poisoning of cows and buffalos, Cattle Feed
(Manufacture and Sale) Regulations, 2012 were implemented to regulate the manufacture and sale of
cattle feed.
4. Intending to capitalize on the potential for growth in the cattle feed industry, Acme set up the joint
ventures (JVs) between October and November 2012, which post certification, began manufacturing in
June 2013. Their prices were largely similar and they charged a slightlylower price.
5. In November 2014, a global recession hit the Bohemian economy and by mid-December 2014, there was a
reduction in Adiva's supply of cattle feed, which was followed by a reduction in the supply of cattle feed
from Brick, Cautious and Detro by January 2014.
6. In May 2016, MCC and RAM filed an Information under Section 19(1)(a) of the Competition Act before CCB
alleging abuse of dominance by Dylon by charging unfair prices for its packaged milk. On finding a prima
facie case of violation of Section 4 of the Act, the Director General (DG) was directed to investigate the
matter.
7. During the pendency of this investigation, Dylon filed an Information against Adiva, Brick, Cautious and
Detro under Section 19(1)(a) for cartelisation in the manufacture of cattle feed through limiting and
controlling production and supply of cattle feed and fixing prices. On the basis of such information the CCB
clubbed the investigation against Dylon and the joint ventures.
Investigation and Finding of the DG
8. During investigation it was revealed that there was an increase in the price of milk by all the milk suppliers
by unusual percentage; however, there was an extraordinary increase of 105% in the price charged by
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Dylon for its packaged milk, which continued even after the others reduced their prices.
9. According to the DG's report, Dylon also enjoyed brand image due to its marketing and unique packaging
which led to a significant boost in sales.
10. While investigating the alleged cartelisation by the JVs, it was revealed that on 20 December 2014, the
representatives of all the JVs except that of Adiva attended a seminar, followed by an informal dinner. In
addition, several calls and SMSs had been exchanged between the four companies.
11. In a third party submission it was also brought to light, that the replies of the JVs to a letter protesting
against sudden increase in price, were in identical language and were dated the same day.
12. The DG's report, thus, found Dylon to be in violation of Section 4 of the Act in the relevant market of ‘sale
and processing of packaged milk’ and the joint ventures guilty of entering into collusive agreements under
Section 3(3) of the Act.
Decision of the CCB
13. The CCB held that the conduct of Dylon was abusive in nature irrespective of an increase in the cattle feed
prices and thus imposed a penalty of 10% of its average turnover for the last three years along with a
cease and desist order and accepted the argument of the joint ventures that since there were a part of a
‘single economic entity’ they were incapable of collusion.
Aggrieved by the CCB's decision Dylon has filed an appeal before the Competition Appellate Tribunal, where
RAM has also filed a compensation application on behalf of retailers and consumers under Section 53N of the
Act.
ISSUES FOR CONSIDERATION
I. WHETHER DYLON IS DOMINANT AND CAN BE HELD LIABLE FOR CONTRAVENTION OF SECTION 4(2) OF THE BOHEMIAN
COMPETITION ACT, 2002.
II. WHETHER ADIVA, BRICK, CAUTIOUS AND DETRO CONSTITUTE A SINGLE ECONOMIC ENTITY WITH ACME AS THEIR PARENT.
III. W HETHER ADIVA, BRICK, CAUTIOUS AND DETRO ARE LIABLE FOR CONTRAVENTION OF SECTION 3(3) OF THE BOHEMIAN
COMPETITION ACT, 2002.
IV. WHETHER RAM IS ENTITLED TO CLAIM COMPENSATION UNDER SECTION 53N OF THE BOHEMIAN COMPETITION ACT, 2002.
V. WHETHER THE IMPOSITION AND QUANTUM OF PENALTY IMPOSED ON DYLON BY THE CCB IS SUSTAINABLE.
SUMMARY OF ARGUMENTS
I. WHETHER DYLON IS DOMINANT AND CAN BE HELD LIABLE FOR CONTRAVENTION OF SECTION 4(2) OF THE
BOHEMIAN COMPETITION ACT , 2002.
Dylon is not liable for contravention of Section 4(2) as firstly, the relevant product market is the market for
‘processing and sale of milk’ as raw/conventional milk and packaged milk are substitutable from the demand-
side. This is because they have the same end-use and are functionally substitutable on the basis of their
physical and technical characteristics, uniform consumer preferences exist and the milk market consists of
differentiated products wherein there is a varying degree of competitionbetween them and thus there is
interchangability. Secondly, in arguendo, if the relevant market is held as that of ‘processing and sale of
packaged milk’, Dylon is still not in a dominant position because the market share of an enterprise is not
conclusive of its dominance and cannotbe looked at in isolation of other factors. Additionally, the size and
importance of other competitors in the market is adequate to impose restraints on Dylon by virtue of Anmol's
forward vertical integration and the brand image of Dairy Fresh. There are also no barriers to expansion. Thirdly,
Dylon has not abused its dominant position as the price of the product is commensurate with its economic value,
which includes the value placed on the product by the purchaser as evidenced by their willingness to pay the
excessive price the present case falls within the exception to Section 4(2) of the Bohemian Competition Act
which allows for the charging of unfair price to meet competition and price regulation in a self-correcting market
would be erroneous on part of the CCB.
II. WHETHER ADIVA, BRICK, CAUTIOUS AND DETRO CONSTITUTE A SINGLE ECONOMIC ENTITY WITH ACME AS THEIR
PARENT.
The cattle feed manufactures do not constitute a single economic entity as firstly, they are not amenable to
the control of Acme. Shareholding is not proof of control in an undertaking and the test of decisive influence
must be fulfilled as the same has been applied to minority shareholding companies also. Secondly, the parties
have not pursued common economic interests under Acme's instructions as evidence of a legally binding
instruction from the parent company is missing. Thirdly, the cattle feed manufactures have the capability to
conspire and compete against each other and it is imperative to draw the line between a cartel and a single
economic entity under the lens of control. Common ownership between a parent and subsidiary does not
immunize them from antitrust liability as they avail the privilege of doing business through separate
corporations.
III. WHETHER ADIVA, BRICK, CAUTIOUS AND DETRO ARE LIABLE FOR CONTRAVENTION OF SECTION 3(3) OF THE
The cattle feed manufacturers are not liable for contravention of Section 3(3) as firstly, the R&D Agreement
between the cattle feed manufacturers, is anti-competitive in nature as a horizontal cooperation agreement leads
to disclosure of strategic information and coordination amongst parties to control prices and output. Secondly,
the cattle feed manufacturers have engaged in cartelisation by entering into an agreement which can be inferred
from their concerted conduct. This conduct is established on three limbs with the use of direct and
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circumstantial evidence as the burden of proof on the Informant is only to meet preponderance of probabilities.
The existence of an oligopolistic market susceptible to cartelisation is the first limb of the argument, followed by,
consideration of evidence of constant communication between the cattle feed manufacturers by way of seminars
held by the Department of Animal Husbandry, telephone records of communication between them and their
reply letters to Andy Kurian. The final limb of evidence is the existence of economic evidence inclusive of price
parallelism, limitation and control of supply and market allocation. With a dominant position in the market the
agreement between the cattle manufacturers gave them such monopoly power that they, rather than market
force fix the prices of cattle feed. The establishment of the agreement has raised a presumption of an adverse
appreciable effect on competition. Thirdly, in arguendo the parties are abusing their dominant position as a
group by limiting and controlling supply of cattle feed.
IV. WHETHER RAM IS ENTITLED TO CLAIM COMPENSATION UNDER SECTION 53N OF THE BOHEMIAN COMPETITION
ACT .
RAM is not entitled to compensation on behalf of retailers as well as consumers as firstly, the application for
compensation is not maintainable because the guilt of the Appellant has not been concretely established and
granting compensation due to lack of jurisprudential trend will be erroneous. Therefore, where an application for
compensation is brought simultaneously, it will not be maintainable. Secondly, RAM has no standing to bring a
representative suit under Order 1 Rule 8 of the Civil Procedure Code as the direct purchasers and end-consumers
have conflicting interest and no representative action can be brought for recovery of compensation. The
existence of various conflicts like, differences in the amount of compensation claimed and exclusivity of
availability of defences further highlights the absence of a community of interest which is a prerequisite for a
representative suit. Thirdly, the defence of passing on is available to Dylon against RAM as it has not suffered
any actual harm and it is necessary to enquire whether direct purchasers have passed on the overcharge to their
own customers to prevent unjust enrichment. This can be observed primarily by analysing the amount of
competition that exists at the concerned level of distribution.
V. WHETHERTHE IMPOSITION AND QUANTUM OF PENALTY IMPOSED ON DYLON BY THE CCB IS SUSTAINABLE.
The imposition and quantum of penalty is unsustainable as firstly, only relevant turnover should be
considered as the penalty provisions under the Act must be read harmoniously with the preamble definitions and
other provisions of the Competition Act. Secondly, the quantum of penalty should be lowered as discretion must
be exercised to honour the principle of proportionality. Mitigating circumstances must be taken into
consideration as the offence constitutes a first on part ofDylon and the absence of aggravating circumstances
further lends weightage to the same.
WRITTEN SUBMISSIONS
I. WHETHER DYLON IS DOMINANT AND CAN BE HELD LIABLE FOR CONTRAVENTION OF SECTION 4(2) OF THE
Dominant position enjoyed by an enterprise allows it to operate independent of competition and sometimes
1 2
such practise is exercised even to the detriment of consumers . Section 4(1) of the Act provides, “No enterprise
jointly or singly shall abuse its dominant position.” Explanation (a) to Section 4 of the Act defines dominant
position as a position of strength enjoyed by an enterprise in the ‘relevant market’. Therefore, it becomes crucial
to determine the relevant market in which the enterprise is enjoying a dominant position.
A. The relevant product market is the market for ‘processing and sale of milk’.
Market definition is a tool used to identify and define the boundaries of competition between firms and
establish the framework within which competition policy is to be applied. Relevant market makes reference to
3
product and geographic markets.
Relevant market is a market comprising all those products or services which are regarded as interchangeable
or substitutable by the consumer by reason of characteristics of the products or services, their prices and
4
intended use. Additionally, the factors enumerated under Section 19(7) of the Act need to be borne in mind
while assessing relevant market.
i. Raw/conventional milk and packaged milk are substitutable from the demand-side.
Two aspects of substitutability are taken into account : functional and reactive substitutability. Functional
substitutability means that two different products or services are substitutable on the basis of their physical and
technical characteristics. Reactive substitutability reflects the extent of consumer reaction to a price change; this
5
reactive substitutability is the subjective aspect of the relevant product market analysis.
Any proposed market must be justified by defining it with reference to the rule of reasonable
6
interchangeability and cross-elasticity of demand. Interchangeability implies that one product is roughly
equivalent to another for the use to which it is put, while there may be some degree of preference for one over
the other, either would work effectively.7
a. Raw/conventional milk and packaged milk have the same end-use.
According to Section 19(7)(a) of the Act, two products will be in the same relevant market if they have the
same physical characteristics or end-use and arefunctionally substitutable on the basis of their physical and
technical characteristics.8
In Kimberly-Clark9, the Commission of the European Communities [hereinafter ‘Commission’] considered
handkerchiefsand facial tissuesto be in the same relevant product markets since only a packaging difference was
observed. They had the same end use and the difference only led to differences in places of utilization. Thus, it is
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only when two products are physically very different to the extent that they cannot in fact be used for the same
10
end-use, that they cannot be considered as substitutes.
11
In Apple Inc. USA , the Competition Commission of India [hereinafter ‘CCI’] stated that people might have a
preference for Apple, but to qualify it as a niche segment, it is required that no other competing products offer
similar products and the target customers perceive it as being the only product in the market.
Further, in Adidas/Reebok12, an argument accepted by the Commission was that, although athletic shoes can
be segmented into categories, these categories are not relevant antitrust markets, but are principally marketing
tools designed to stimulate consumer interest and demand for athletic shoes. Under US jurisprudence it hasbeen
13
held that the boundaries of a submarket of a broader market may be determined by examining such practical
indicia as, inter alia, industry or public recognition of the submarket as a separate economic entity, the product's
peculiar characteristics and uses.14
The Commission has taken into consideration differences in patterns of consumption15 and has held that such
differences reflect the different drink requirements of consumers and the different reasons for which they might
choose a specific drink. These range from the mere functional/physiological need to quench thirst, to reasons
related to nourishment and to a variety of psychological needs.
The Commission has also considered the taste16 of various products while determining relevant market17,
while the CCI has held that, substitutability of a product is to be seen from its utility and not from its looks or
18
features only.
Therefore, it is submitted that since, both raw/conventional milk and packaged milk have the same end-use
in terms of consumption, nutritional value, taste and functional utility, they fall within the same relevant product
market.
b. Consumer preference for raw/conventional milk and packaged milk is uniform.
Consumer preference has been defined as an individual decision to choose one alternative out of a set of
mutually exclusive alternatives. The consumer choice also depends on two elements:
1. Tastes (preferences) and,
2. Feasible alternatives (constraints).
Preferences also depend on rationality. A preference is rational if it satisfies completeness, monotony and
desirability.19
Milk processing approaches, like ultra-pasteurization and ultra high temperature, have only a minor impact on
20
the nutritional quality of milk. Thus, since the nutritional quality of raw/natural milk and packaged milk is
comparable, substitution between them can be reasonably concluded in light of nutritional preferences. Further,
in Friesland Foods/Campina21, the Commission held that due to the short heat treatments Long-life milk
undergoes, the original taste of the milk remains virtually unaffected. The Commission has also noted that
22
distinctions in packaging formats are not a strong consideration for end-consumers.
The threshold of uniform consumer preferences has been substantially met in the present case, to the extent
of interchangability of the milk. Since consumer preferences, concerning nutritional content, packaging formats
and taste remains the same across raw/conventional and packaged milk, no specific characteristic will render
packaged milk a separate relevant market for Dylon.
c. The milk market consists of differentiated products.
Products can be differentiated because of intrinsic quality differences or on grounds of perceived quality
differences. When products are not identical or fungible, they still may be in the same market, for purposes of
antitrust law, as differentiated products.23 The level of advertising in a market may be an indicator of the firms'
24
efforts to differentiate their products. Differentiated markets are usually characterised by a continuum of
substitution and a varying intensity of competition interaction between the products in question.25
In Kraft26, it was held that RTE cereals are so highly differentiated, and compete with one another along so
many different dimensions, that there is no clear break in the chain of substitutes among cereals that would
permit definition of a market smaller than all RTE cereals.
Applying the same to the case at hand, in light of the level of advertising and efforts taken to differentiate the
milk of various competitors27, it can be reasonably concluded that there exists a single relevant market.
ii. Supply-side substitutability not considered.
Further, when supply-side substitutability would entail theneed to adjust significantly existing tangible
andintangible assets, additional investments, strategicdecisions or time delays, itwill not be considered atthe
stage of market definition.28
Therefore, we submit that there is demand side substitutability in the market of ‘processing and sale of milk’.
The relevant market for consideration should be the market of ‘processing and sale of milk’ and not “packaged
milk”.
B. In arguendo, if the relevant market is ‘processing and sale of packaged milk’, Dylon is still not in a
dominant position.
As per Explanation (a) to Section 4 of the Act, an enterprise enjoys a position of strength, if it is able to act in
a manner as provided in clauses (i) & (ii) thereof, affording it the power to behave to an appreciable extent
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29
independently of its competitors, its customers and ultimately of the consumers. The factors to Section 19(4)
of the Act also need to be taken into account.30
i. Market share of an enterprise is not conclusive of dominance.
It is generally recognized that the structure/conduct/performance model (and, therefore, market shares) have
little predictive power for whether a firm has substantial market power.31 The intention of the legislature was
never to prescribe market share as a conclusive test of dominance and the same must be seen in conjunction
32
with the other factors to assess the dominance of an enterprise.
ii. The size and importance of other competitors in the market is adequate to impose restraints
onDylon.
Producers, by integration downward, perform distributive functions normally performed by wholesalers and
retailers.33 Economic efficiencies can result, since joint performance offunctions can lower some costs and
34 35
eliminate others and it can also result in effective product marketing.
a. Forward vertical integration of Anmol.
In the preset case, Anmol is said to have a strong network of dealers and retailers in Bohemia with seventy
36
sale offices spread across thirtystates. Thus, any hypothetical small but significant non-transitory increase in
price (SSNIP) by Dylon can easily be constrained by Anmol due to its economic efficiencies.
b. Brand image of Dairy Fresh.
The direct effect of advertising is that brand loyalty is created and the demand for the advertised product
becomes less elastic37 thus, the advertising of one firm may steal the business and thus diminish the profit of
38 39
another. Further, brand loyalty is a factor that is considered as affecting consumer preferences.
Thus, it is argued that the brand endorsement of Dairy Fresh by Takshi Vohra40 and its subsequent brand
image is adequate to impose competitive constraints on Dylon, thereby, preventing it from becoming dominant.
iii. There are no barriers to expansion.
When identifying possible barriers to expansion and entry it is important to focus on whether rivals can
41
reasonably replicate circumstances that give advantages to the allegedly dominant undertaking. Since none of
these barriers exist in the present case, expansion by competitors can adequately restrain Dylon's price
increases.
C. Dylon has not abused its dominant position.
Section 4(2)(a)(ii) of the Act provides that there will be an abuse of dominant position, if a dominant
enterprise, imposes unfair or discriminatory price in purchase or sale (including predatory pricing) of goods or
service.
i. The price of the product is commensurate with its economic value.
The ECJ in General Motors42, found that, monopoly pricing as an abuse could include:
“the imposition of a price which is excessive in relation to the economic value of the service provided”.
43 44
This was also upheld in British Leyland. In United Brands , it was held that questions to be determined
were whether the difference between the costs actually incurred and the price actually charged is excessive, and,
if the answer to this question was in the affirmative, whether a price had been charged which is either unfair in
itself or when compared to competing products.
The Commission in Port of Helsingborg45, distinguished between ‘excessive’ and ‘unfair’ prices and held that,
“The determination of the economic value of the product/service must take account of other non-cost
related factors, especially as regards the demand-sideaspects of the product/service concerned”.
The Court noted that the demand-side is relevant mainly because customers are notably willing to pay more
for something specific attached to the product/service that they consider valuable. Value for the customer and
provider thereby increases the economic value of the product/service. The definition of economic value must
thus, include the value placed on the product by the purchaser as evidenced by their willingness to pay the
46
excessive price.
Thus, in the present case, since the value of Dylon's packaged milk is evidenced by willingness to pay
(significant boost in sales)47, due to its unique packaging, long shelf-life and nutritional content, the price is not
in excess of its economic value and subsequently not unfair.
ii. The current case falls within the exception to Section 4(2) of the Act.
The UK Office of Fair Trading [hereinafter ‘OFT’] has recognized that there may be several ‘objective
48
justifications’ for prices that are apparently excessively high. Objective justification can be divided into two
kinds49,
1. Objective necessity defence; and,
2. Meeting competition defence.
The Explanation to Section 4(2)(a) of the Act, provides an exception to unfair prices which may be adopted to
meet the competition. Therefore, where the alleged conduct was done to meet competition, it cannot be
50
regarded as unfair. Due consideration is also given to the need to recover large initial investments, intangible
value and opportunity costs51. Further, when deviation of price from marginal cost is trivial, or simply reflects
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52
certain fixed costs, there is no occasion for antitrust concern.
In the present case, the abovementioned criterion is fulfilled by virtue of Dylon increasing the price of
packaged milk due to increased production costs, that is increase in the price of cattle feed. If this had not been
done, Dylon would have been incapable to compete in the market, due to which the alleged unfair pricing, falls
within the purview of the exception.
iii. Price regulation in a self-correcting market would be erroneous.
Excessive prices that raise a reasonable concern are those that occur in the absence of effective competitive
constraints. Where there is price discipline due to competitive pressure the market should tend to self-correct
and intervention would not be justified.53
In cases involving exploitative abuse, the common feature for grounds of intervention have been that the
market is characterised by high entry barriers54 or there have been absence of credible threat against the
55
position of the dominant firm. Additionally, there is a risk of chilling innovation if an excessive price
intervention affects expected revenues and reduces the chances of successful R&D cost recovery.56
57
In Trinko , it was held that:
“Mere acquisition of monopoly power, and the concomitant charging of monopoly prices, is not unlawful. It
is an important element of the free market system. The opportunity to charge monopoly prices, at least for a
short period is what attracts ’businessacumen’ in the first place; it induces risk taking that produces
innovation and economic growth.”
Therefore, where markets are contestable58, excessive pricing should be of no concern to a competition
59
enforcer. The CCI has also held that excessive prices will not be self-correctingonly when there has been
insulation from all possible competition.60 In the present case, since the market is relatively free from barriers,
especially with respect to expansion, price regulation is unnecessary.
II. WHETHER ADIVA, BRICK, CAUTIOUS AND DETRO CONSTITUTE A SINGLE ECONOMIC ENTITY WITH ACME AS THEIR
PARENT.
The Act61 states that no enterprise or association of enterprises or person or association of persons shall enter
into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or
provision of services, which causes or is likely to cause an adverse appreciable effect on competition (AAEC)
within India.
The term ‘cartel’ presupposes an agreement between distinct entities. Section 2(h) of the Act defines an
economic unit wherein ‘enterprise’ is seen as the focal point. ‘Enterprise’ is defined in a comprehensive way to
consist of ‘units’, ‘divisions’ ‘subsidiaries’ and there is neither need nor scope for interpretation of the concept of
‘economic unit’ as the law is clear and unequivocal.62
63
In Viho , it was held that antitrust provisions will not apply to wholly owned subsidiaries which carry out the
instructions of the parent company. In AEG Telefunken64, it was held that full ownership of the share capital of a
subsidiary is per se sufficient to give rise to a presumption that the parent company exercised decisive influence.
Hence, decisive influence can be ascertained by shareholding patterns between the parent and subsidiary.
A. The parties are not amenable to the control of Acme.
65
Shareholding is not a conclusive proof of control in an undertaking. In Stora , since the Court relied not only
on the fact that the subsidiary was wholly-owned, but mentioned further indicia showing exercise of control for
the assumption of ‘decisive influence’. Until recently66, it was unsettled whether this reference to ‘additional
criteria’ constituted a precondition for the attribution of conduct, and thus for the application of the ‘economic
entity doctrine’.
Shareholding merely raises a strong and rebuttable presumption. This view seems in line with general
principles of corporate law, which require a certain amount of domination by the controlling undertaking before
67
disregarding the main statutory principle of ‘legal separation’.
In the present case, control cannot be presumed since the parties are not wholly owned subsidiaries. Minority
shareholding can also effectively constrain the influence exercised by the parent company in ajoint venture. In B
68
and Reynolds , mere minority shareholdings have been asserted to confine the economic freedom of a
subsidiary only in an insufficient manner, thus preventing exemption from antitrust laws. Minority shareholding
can even cause decisive influence in case where such a shareholder had the possibility to implement its
instructions by a binding voting agreement.
69
In this regard, it has already been pointed out that Article 3(1) of the ECMR differentiates between ‘sole
control’ and ‘joint control’. Sole control exists where an undertaking possesses either the majority of voting
rights in another company, or, in cases of so-called ‘qualified minority shareholdings’70, where the minority
71 72
shareholding is supplemented by legal or factual elements allowing for the shareholder to determine the
economic strategyof the target undertaking.73
74
Joint control, on the other hand, is presumed where two or more parent companies must meet an accord on
all principle decisions concerning a joint venture subsidiary.75 For the assumption of ‘decisive influence’ in this
case, the possibility of negativelyexerting control, i.e. being able to block the strategic economic conduct of the
76
commonly controlled undertaking, is sufficient.
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In the present case, Acme has over 50% shareholding in each of the parties. It is submitted that this is
insufficient to presume control since the character of control is likely to be exercised jointly and not solely.
Hence, Acme cannot solely exercise control over the parties to decisively influence their business policy.
Post AKZO Nobel77, two facets of single economic entity doctrine arose i.e. firstly, presumption of decisive
78
influence based on shareholding along with supporting elementsas elucidated in Stora , secondly, the degree of
influence exercised by the parent. Unity of conduct and pursuit of common economic interests can be indicative
of degree of influence exercised by the parent over the subsidiaries.79
B. The parties did not pursue common economic interests as the parent does not exercise control over
them.
Affiliated undertakings constitute a ‘single economic entity’ where the subsidiary has no decision-making
authority, respectively no economic autonomy.80 It is pertinent to note that economic autonomy is not analogous
to economic parallelism, since the former is a classic trait of all oligopolistic markets. Economic autonomy is only
81
examined between the entities claiming the single entity doctrine.
Another factor to be considered is whether there has been a legally binding instruction by the parent
82
company which is missing in the present case. The parties are not following a co-ordinated economic policy
since their prices and supply policy are not identical in the market.83 Their pricing policies in markets where they
are dominant indicate pursuit of their personal economic interests and hence, indicative of economic autonomy.
C. The parties are capable of conspiring against each other.
The doctrine of single entity assures immunity from a cartel prosecution.84 However, the most stable and well
85
-formed cartels may look like a single entity under the lens of ‘control’. The most stable cartels may give all
decision-making power to a central entity who can manage a cartel in such a way as to prevent breakdown.86
87
This would create a very perverse system that protects the most stable cartels.
In the US, the legal control test is also applied to concerted action among partially-owned sister subsidiaries.
88
In Bell Atlantic , it was considered whether two sister corporation, one eighty percent owned and another
hundred percent owned by the parent could conspire. In Yellow Cab Co89, the US Supreme Court stated that:
“the presence or absence of an unreasonable restraint on interstate commerce may result as readily from a
conspiracy among those who are affiliated or integrated under common ownership as from a conspiracy
90
among those who are otherwise independent.”
The Court thus concluded that the corporate interrelationships of alleged conspirators were not determinative
of antitrust liability. And so in this case, the common ownership and control of the various corporate identities
91
are impotent to liberate the alleged combination and conspiracy from the impact of the Act.
Subsequent to Yellow Cab, the US Supreme Court affirmed the intra-enterprise conspiracy doctrine in several
other cases, suggesting a bright line rule that if a corporate subdivision were separately incorporated, a plurality
of actors would exist making it sufficient to expose the separately incorporated subdivision and its parent to
92
antitrust liability.
93
In Perma Life Muflers, Inc. , it was stated that common ownership between a parent and its wholly-owned
subsidiary, did not immunize them from antitrust liability because they availed themselves of the privilege of
doing business through separate corporations.
In Copperweld94, the court went on to presume ‘unity of interest’ and provided immunity of single economic
95
entity. But even this immunity has been severely criticised. Indeed, the only reason cartels exist at all is
because its members share an interest in reducing output and increasing prices.96 By contrast, various directors
of divisions within a single corporation can surely hold divergent interests, including different long-term goals for
97
the company. Hence, placing reliance on the Copperweld test, will create a pigeonhole for agreements guised
as single economic entities. Hence, the doctrine of single entity should be applied only if all tests are fulfilled, as
absence of even one ingredient will allow immunity for an agreement beyond the intended scope of this
immunity.
It is submitted that the parties do not constitute a single economic entity, as the abovementioned tests have
not been fulfilled.
III. WHETHER ADIVA, BRICK, CAUTIOUS AND DETRO ARE LIABLE FOR CONTRAVENTION OF SECTION 3(3) OF THE
Adiva, Brick, Cautious and Detro are liable for contravention of Section 3(3) of the Act as they have entered
into an agreement to directly or indirectly determine sale prices, limited and controlled supply and shared the
market by way of allocation of geographical area.
A. The R&D Agreement is anti-competitive in nature.
R&D agreements between competitors are covered by the Block Exemption Regulation provided that their
combined market share does not exceed 25%98 as such concentration of market power may lead to loss of
competition between the parties to the agreement.
For the competitive assessment of the agreement, factors like high market shares of parties, close
competition between them, limited possibilities of customers switching suppliers, likelihood of competitors to
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99
increase supply if prices increase are relevant. Moreover, where the R&D is directed at the improvement or
refinement of existing products, the Horizontal Guidelines provide that negative effects on prices or output are
likely to occur when the parties together have a strong position on the market and few other innovative activities
are identifiable.100 The present case involves an R&D Agreement between Adiva, Brick, Cautious and Detro101
102
who have collective market share of 50%.
A horizontal co-operation agreement also leads to disclosure of strategic information, increasing the likelihood
of coordination among the parties and achieve commonality of costs so the parties easily coordinate market
103
prices and output. Here, it is seen that the parties to the agreements are sharing markets since each of them
is relatively dominant in one geographic region.104
In Italian Cast Glass105, and Siemens/Fanuc106, specialization played too small a part in the arrangements to
justify the wide-ranging cooperation between the parties which had anticompetitive effects at the distribution
level. Here, the parties have co-operated not only for R&D and selection of ingredients but also at the level of
production. Hence, the scale of co-ordination was wide ranging thereby making collusion between parties
possible.
B. Adiva, Brick, Cautious and Detro have engaged in cartelisation.
Adiva, Brick, Cautious and Detro have engaged in cartelisation as there was an agreement between the
parties, the parties colluded amongst themselves and the conduct of parties has resulted in an AAEC.
i. There is an agreement between the parties.
The terms ‘agreement’ and ‘concerted practice’ subsume the various types of arrangements by which
competitorsmutually accept a limitation of their freedom of action on the market as a result of direct or indirect
107
contacts between them.
However, in India, to find the existence of a ‘cartel’ under Section 2(c) of the Act, there has to be a clear
existence of an ‘agreement’under Section 2(b) of the Act. ‘Agreement’ as defined under section 2(b) is a wide
and inclusive definition which not only includes formal written agreement which is enforceable in law but also
108
informal ‘understanding’ and ‘arrangement’ in the widest possible meaning. The concurrence of parties or the
consensus amongst them can, therefore, be gathered from their common motive and concerted conduct.109
ii. The parties have colluded amongst each other.
Though cartelisation can occur in any industry, there are a number of conditions, which make the market
conducive to cartelisation, these include high concentration within a few competitors, entry and exit barriers,
homogenous products, demand and supply conditions, high dependence of the consumers on the product and an
active trade association.110
The cattle feed industry is oligopolistic in nature; Adiva, Detro, Brick and Cautious control 50% of the market
share, require licensing from the Bohemian Government, and investments required to conduct chemical tests
pose considerable barriers to new entrants in the market. Additionally, cattle feed is manufactured according to
the Regulations and contains only specified ingredients, indicating substantial similarity in the nature of the
product.111 Demand for cattle feed depends on that of milk, which being an inelastic product, remains
112
predictable and doesn’t see wide fluctuations in consumption irrespective of economic conditions.
To establish the existence of a cartel in an oligopolistic market, it is important to prove existence of a formal
or an informal agreement, to establish that the manufacturing units have contacted each other directly or
113
indirectly. Direct evidence may not be available to prove the existence of agreement but the same can be
established from a variety of circumstantial evidence.114 The concurrence of parties or the consensus amongst
115
them can be gathered from their common motive and concerted conduct.
Circumstantial evidence can be of two types : 116
1. ‘Communication evidence’ which includes telephonic records, minutes of meetings and so on;
2. ‘Economic evidence’ which includes ‘conduct’ or ‘structural evidence’.
a. Presence of communication evidence.
Communication evidences might prove that contravening parties met and communicated with each other to
determine their future or present behavior, but does not describe the substance of such communication.117
Courts have held that a high level of communications among competitors can constitute a plus factor, which
118
combined with parallel behavior, supports an inference of conspiracy.
Communications can be based upon circumstantial evidence and can occur in speeches at industry
119
conferences, announcements of future prices, and in other public ways. Adiva, Brick, Cautious and Detro had
opportunities to conspire which lead to changes and co-ordination in their behavior, as shown by at least three
categories of evidence:
1. Seminars by Department of Animal Husbandry, Dairying and Fisheries.
120
Courts have found that unlawful conspiracies may be inferred when collusive communications among
competitors precede responsive business practices, such as new pricing practices and parallel behavior.121
In the present case, the meeting of parties at the seminar conducted by the Department of Animal Husbandry
on 20December 2015 was followed by reduction in supply of cattle feed from Brick, Cautious and Detro in
January, which is indicative of such communication too.122
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2. Telephone Records.
The partiesregularly communicated with each other throughseveral telephone calls and messages throughout
the period of collusion.123 Telephone call logs and telephone billing statements evidence the fact that such
124
conversations occurred; the record typically does not reveal the subject matter of such calls. The CCI
125
acknowledges such practice to be unusual, inferring the existence of an agreement. In Cement Cartel126, it
was held that examples of communication were sufficient to override explanations that the conduct of cement
manufacturers was consistent with their self-interests.
3. Replies to Andy Kurian.
Independent enterprises do not show parallelism in conduct or language or replies, however, the parties
127 128
replied to Andy Kurian's letter using identical language and dates. In Southern Railways , it was held that
similarity in the matter of filing bids and the contents of covering letters were found to be suggestive of some
understanding amongst the parties.
Additionally, the date on the letters also points to collusion, as seen in Jet Airways129, where it was held that
increments of rates on same dates or nearby dates are reflective of an agreement amongst the parties.
b. Presence of economic evidences.
130
While evaluating economic evidences, in Alkali , it washeld that:
“price parallelism by itself does not amount to a restrictive trade practice and without any plus factor to
bolster the circumstance it is unsafe prima facie to conclude that the respondents indulged in any cartel for
raising prices”.
131
This position has subsequently been upheld by the Supreme Court of India.
The additional economic circumstantial evidence is referred to as ‘plus factors’ and includes economic actions
and outcomes that are largely inconsistent with unilateral conduct but largely consistent with coordinated
132
action.
1. Price parallelism.
When prices of a commodity move up or down due to the concerted effort of companies in order to form a
133
cartel or monopoly in the market and not because of market forces, it is referred to as price parallelism. The
prices of cattle feed manufacturedhave been largely similar.134 Although, they haven’t been identical, parallel
135
pricing does not require uniform prices, and permits prices within an agreed upon range.
2. Limiting and controlling supply.
It is contented that production and dispatch corresponds to the demand in the economy, however Bohemia
136
has been the largest producer of milk in 2015-2016. It can be seen that limiting supply was not
commensurate to the growth in the industry or even with the economic slowdown. In Cement Cartel137, CCI took
cognizance of the fact that the market was in a position to absorb the supplies since in all other months the
quantity produced and supplied was almost wholly consumed.
It also has to be seen that, like in Topco Associates138, the agreement of the defendants gave them such
monopoly power that they, rather than market forces, fixed the prices of cattle feed. A similar situation is
139
identified in the present case.
3. Market allocation.
140
Market allocations are agreements between competitors to allocate territories to minimize competition and
intended to create horizontal agreements to allocate markets and fix prices.141 Here, intention plays the most
important role, as when parties don't compete with each other in spite of their ability to engage in competition,
142
it can be inferred that there is intention to allocate markets. Evidence that defendants have acted against
their economic interest can also constitute a plus factor143, but if independent business justification for the
144
defendants' behaviour, no inference of conspiracy can be drawn.
145
The parties were active throughout Bohemia, but were dominant in one region each, without any overlaps.
Thus, it is submitted that in spite of the ability to compete, the parties did not do so, which reflects market
sharing.
iii. The conduct of the partieshas caused AAEC.
Once existence of prohibited agreement, practice or decision enumerated underSection 3(3) of the Act is
established there is no further need toshow an effect on competition because then arebuttable presumption is
raised that such conducthas an AAEC andis therefore anti-competitive. In such a situation, burden of proof shifts
on the opposite parties to showthat impugned conduct does not cause appreciableadverse effect on
146
competition.
Application of the Rule of Reason.
The opposite party can rebut the presumption of AAEC by adducing reasonable justification andpro-
competitive effects of the agreement.147 Limiting and controlling supply, thereby causing inconvenience to the
148
public at large has been held to be a valid form of AAEC , which has happened here due to the sudden
149
increase in the price of milk.
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.150 Creation of entry
barriers, competition foreclosure and non-accrual of consumer benefits are factors enumerated under Section 19
(3) of the Act to determine AAEC.
C. The parties are a group and are abusing their dominance.
It is submitted that the parties are abusing their dominant position as a group. The parties collectively are
dominant, as the ECJ has held a 50% market share as very high and reflective of the existence of a dominant
position.151 The Act152 provides that there shall be an abuse of dominant position under sub-section (1), if an
enterprise limits or restricts production of goods. Abuse is stated to occur when an enterprise or a group of
153
enterprises uses its dominant position in the relevant market in an exclusionary and/or exploitative manner.
Limiting or restricting production of goods constitutes ‘abuse’ as it affects the market forces of demand and
supply.154
IV. WHETHER RAM IS ENTITLED TO CLAIM COMPENSATION UNDER SECTION 53N OF THE BOHEMIAN COMPETITION
ACT , 2002.
Section 53N of the Act allows one or more of such persons, when loss or damage has been caused to
numerous persons having the same interest to make an application for recovery of compensation, for and on
behalf of, or for the benefit of, the persons so interested under, the provisions of Rule 8 of Order 1 of the First
Schedule to the Code of Civil Procedure [hereinafter ‘CPC’].155 This same right is recognized both under the
156 157
EU and US jurisprudence.
A. The application for compensation is not maintainable.
In DLF Limited158, the claim for compensation filed by the Appellant, before the COMPAT, was subsequently
withdrawn, due to a pending Special Leave Petition filed before the Supreme Court of India by DLF Limited,
against the decision of the COMPAT, holding DLF Limited guilty of anti-competitive conduct. Further, in Mohana
159
Kurup , while interpreting Section 48(1) of the Act, it was stated that:
“The deeming provision can be invoked only after it is found that the company has contravened the
provisions of the Act or any rule, regulation, order made and direction issued there under. Even the
determination made by the Commission is subject to the right of the aggrieved person to challenge the same
by filing an appeal under Section 53B (2) of the Act.”
Thus, drawing a parallel with the abovementioned jurisprudential trend, it is submitted that until Dylon has
been found guilty, an application for compensation cannot be maintainable. Considering that the decision of the
CCI, as well as COMPAT, is subject to further appeal, granting the recovery of compensation until Dylon's guilt is
concretely established would be erroneous.
B. RAM has no standing to bring a representative suit under Order 1 Rule 8 of the CPC.
Under Order 1 Rule 8 of the CPC, it is necessary that the persons represented have the same interest, i.e.
community of interest.160 In light of such requirement, it becomes necessary to distinguish a class action suit
with a representative suit. In the former, a party sues as representative of a larger class of unidentified
individuals, wherein individual awards will not be made to the different members of the class and in the latter,
161
damages resulting from the action will be awarded to the members of the class as a whole.
In representative actions, interests represented must be sufficiently precise as to clearly individuate the
162
subjects represented and allegedly harmed.
i. The direct purchasers and end-consumers have conflicting interests.
As per Order 1 Rule 8 of the CPC, the court will grant permission to file a representative suit on behalf of
numerous persons, provided they have the same interest. It is therefore, imperative that there are no conflicting
163
interests between such persons.
164
The conditions required for a valid class certification are as follows ,
1. The class is so numerous that joinder of all members is impracticable (numerosity);
2. There are questions of law or fact common to the class (commonality);
3. The claims or defences of the representative parties are typical of the claims or defences of the class
(typicality); and,
4. The representative parties will fairly and adequately protect the interests of the class (adequate
representation).
The US Supreme Court has acknowledged the problems that consumer class actions would pose and held that
165
courts must conduct rigorous analysis. It should be ensured that there is no danger that absent class
members will suffer if their representative is preoccupied with defences unique to it.166
In Emerald167, an aspect taken into consideration with regard to class conflict was that the defence of ‘pass
on’ would be available to the alleged infringer against some members of the represented class, but not against
other class members. To demonstrate their damages, retailers will want to contend that they did not pass on
168
much or any of the overcharge and end users, on the other hand, will argue the opposite.
It is therefore submitted that while the defence of pass on will be available to Dylon against the direct
purchasers (retailers), the same will not be available to it against end-users and thus, in light of the
abovementioned case law, it would amount to a disqualifying conflict of interest.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Further, if fair and adequate allocation of the compensation across class members is a significant concern,
conflicts may exist. In such a case, failure to account for heterogeneity among class members (in terms of the
169
extent of damages) is likely to result in an unfair and inadequate distribution of compensation.
ii. No representative action can be brought for recovery of compensation.
It is well established that no representative action will lie to establish the right of numerous persons to
recover damages; for none of the persons sought to be represented have any interest in the damages
recoverable by the particular plaintiff claiming to represent them.170 In Markt171, it was held that a
representative action did not lie, and articulated reasons for this conclusion, one being claim for damages and
the second, and availability of different defences:
“Where the claim of the plaintiff is for damages the machinery of a representative suit is absolutely
inapplicable. The relief that he is seeking is a personal relief, applicable to him alone, and does not benefit in
any way the class for whom he purports to be bringing the action.”
Relying on Emerald172, since the direct purchasers and end-consumers in the present case have different
interests in the amount of compensation due to differences in position in the distribution chain, the application
for compensation is not maintainable.
iii. The defence of passing on is available to Dylon against RAM.
The passing on defence states that the claimants have suffered no loss because they themselves passed on to
173
sub-purchasers any higher price that they might have paid.
iv. RAM has not suffered any actual harm.
Compensation is payable not only for actual loss (damnum emergens) but also for loss of profit (lu-crum
174
cessans) plus interest. It therefore becomes important to establish actual harm on the part of the claimants.
Harm in the form of actual loss can result from the price difference between what was actually paid and what
would otherwise have been paid in the absence of the infringement. When an injured party has reduced its
actual loss by passing it on, entirely or in part, to its own purchasers, the loss which has been passed on no
longer constitutes harm for which the party that passed it on needs to be compensated. It is therefore, in
principle, appropriate to allow an infringer to invoke the passing-on of actual loss as a defence against a claim
for damages. It is only when the passing on causes reduced sales and harm in the form of loss of profit, will the
175
right to claim compensation remain unaffected.
Therefore, in order to prevent unjust enrichment, it is necessary to inquire whether direct purchasers have
passed on the overcharge to their own customers. Proponents of indirect purchaser classes most often rely on
the tax incidence model, which treats the overcharge to direct purchasers as an excise tax. The ‘tax’ shifts
intermediate purchaser'smarginal costs upward and induces them to increase their own prices to their
customers. Only if supply is perfectly inelastic or demand is perfectly elastic would the direct purchaser be
unable to pass on any of the overcharge.176
In the present case, it can be concluded that demand for milk is inelastic due to the stability of the milk
market, owing to the nature of milk as a necessity rather than a luxury. Thus, it is submitted that since the retail
market is conducive to passing on of overcharge, RAM has not suffered any direct damage. Further, since there
was an increase in the sale of Dylon's packaged milk, there cannot be any loss of profits as well, due to
increased demand.
V. WHETHER THE IMPOSITION AND QUANTUM OF PENALTY IMPOSED BY THE CCB IS SUSTAINABLE.
According to Section 27 of the Act, where after inquiry, CCI finds that any agreement referred to in Section 3
of the Act or action of an enterprise in a dominant position, is in contravention of Section 3 or Section 4, as the
case may be, it may pass all or any of the following orders, namely, impose such penalty, as it may deem fit
which shall be not more than ten percent of the average of the turnover for the last three preceding financial
years, upon each of such person or enterprises which are parties to such agreements or abuse.
A. Relevant turnover should be considered.
It is a generally accepted international practise that penalty for antitrust violations imposed on an entity must
177
be on the relevant turnover and not total turnover. The COMPAT has also held that with respect to multi-
product companies, the relevant turnover must be considered, which should relate to the relevant product and
the relevant geographic area.178
Since the term ‘turnover’ appearing in clause (b) of Section 27 has not been defined, the same must take its
colour from the preamble, definitions of various terms and otherprovisions of the Act including Sections 3 and4,
179
the contravention of which can invite anorder of penalty and other consequences enumerated in Section 27.
180
COMPAT has additionally held that India, being a nascent antitrust jurisdiction can seek guidance from OFT
Guidelines181 when looking at the meaning of relevant turnover, which is defined in Chapter 2 Paragraph 2.7:
“Relevant Turnover is the turnover of the undertaking in the relevant product market and the relevant
geographic market affected by the infringement in the undertaking last business year”.
The CCB directed Dylon to pay a penalty of 10% of its average turnover for the last three years. Dylon is a
world nutrition chain with a wide variety of products, qualifying it as a multi-product company. Therefore,
penalty on average turnover is arbitrary and the CCB should have restricted itself to charging a penalty on the
relevant turnover.
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B. Quantum of penalty should be lower.

The CCI has discretion to impose a penalty within the prescribed ceiling limit which is defined in the Act,
however, such discretion must be exercised with caution and the CCI is bound to honour the principle of
proportionality and take into account aggravating or mitigating circumstances and exercise its discretion
judicially.182
The Supreme Court has time and again relied on the doctrine of proportionality and held thatif a law provides
for imposition of a sentence which is disproportionate to the offence, it would be arbitrary and irrational, for it
would not pass the test of reason and would be contrary to the rule of law and void under Articles 14, 19 and 21
183
of the Constitution of India, 1950.
i. Existence of mitigating circumstances.
Mitigating circumstances are behaviours of the accused which suggest influence of other factors on the basis
of which penalty can be reduced.184 On the quantum of punishment, the COMPAT has observed that the CCI
185
should consider the aggravating as well as the mitigating circumstances while inflicting penalty.
It is accordingly submitted that it is certainly a mitigating circumstance that Dylon is being bookedfor the
first time under the Act and this is its very first contravention.186 Moreover, the cartelisation of Adiva, Brick,
Cautious and Detro have pushed prices of Dylon's milk higher and exemption for the same must be afforded to
Dylon.
ii. Absence of aggravating circumstances.
187 188
The European Commission and the OFT have laid down the following as aggravating factors while
imposing penalty:
1. Where an undertaking continues or repeats the same or a similar infringement after the competent
authority has made a finding that the undertaking infringed the law.
2. Refusal to cooperate with or obstruction of the Commission in carrying out its investigations.
3. Role of leader in, or instigator of, the infringement; any steps taken to coerce other undertakings to
participate in the infringement and/or any retaliatory measures taken against other undertakings with a
view to enforcing the practices constituting the infringement.
4. Involvement of directors or senior management.
It can be seen from the facts that there is no evidence whatsoever of any aggravating circumstance. In such a
situation, it is submitted that imposition of the highest penalty on Dylon is arbitrary and unjust.
PRAYER
Wherefore, in the light of facts stated, issues raised, arguments advanced and authorities cited, it is most
humbly and respectfully prayed before this Hon'ble Tribunalthat it may be pleased to admit this appeal and
declare that:
1. Dylon is not dominant and cannot be held liable for contravention of Section 4(2) of the Bohemian
Competition Act, 2002.
2. Adiva, Brick, Cautious and Detro do not constitute a single economic entity with Acme as their parent.
3. Adiva, Brick, Cautious and Detro are liable for contraventionof Section 3(3) of the Bohemian Competition
Act, 2002 by entering into anti-competitive agreements and forming a cartel.
4. RAM is not entitled to claim compensation under Section 53N of the Bohemian Competition Act, 2002.
5. The imposition and quantum of penalty imposed on Dylon by the CCB is unsustainable and should be set
aside.
And pass any other order or grant any other relief in favour of the Appellant, which this Hon'ble Tribunalmay
deem fit in the ends of justice, equity and good conscience.
1
United Brands Company & United Brands Continental BV v. Commission, [1978] ECR 207.
2
The Competition Act, 2002 (India), [hereinafter ‘the Act’].
3
Section 2 (r), the Act.
4
Section 2(t), the Act.
5
Media Market Definitions-Legal Analysis, Institute of European Media Law, available at :
http://ec.europa.eu/competition/sectors/media/documents/2005_media_market_definition_study_en.pdf, [hereinafter, ‘Media Market Definitions’].
6
Buccaneer Energy (USA) Inc. v. Gunnison Energy Corporation, 2017 WL 460969.
7
Premier Comp Solutions LLC. v. UPMC, 163 F.Supp.3d 268.
8
Media Market Definitions, supra at 5.
9
Kimberly-Clark/Scott, Case No. IV/M.623.
10
Kaushal Sharma, SSNIP Test : A Useful Tool, Not a Panacea, COMPETITION LAW REPORTS , 2011.
11
Shri Sonam Sharma v. Apple Inc. USA, Case No. 24/2011, CCI.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
12
Adidas/Reebok, Case No. COMP/M.3942.
13
FTC v. Brown Shoe Co. Inc., 370 U.S. 294.
14
United States of America v. Continental Can Co. Inc., 217 F.Supp. 761.
15
Coca-Cola/Amalgamated Drinks, Case No. IV/M.794.
16
State of New York v. Kraft General Food Inc., 926 F.Supp. 321, [hereinafter, ‘Kraft’].
17
FrieslandCampina/Zijerveld & Veldhuyzen & Den Hollander, Case No. COMP/M.6722.
18
Sanjeev Pandey v. Mahendra & Mahendra & Ors., Case No. 17/2012, CCI.
19
Cine Prakashakula Viniyoga Darula Sangham v. Hindustan Coca Cola Beverages Pvt. Ltd, Case No. RTPE 16/2009, CCI.
20
John Lucey, Raw Milk Consumption-Risks and Benefits, NUTRITION T ODAY , WOLTERS KLUWER HEALTH, 2015.
21
Friesland Foods/Campina, Case No. COMP/M.5046.
22
Princes/Aria, Case No. COMP/M.6249.
23
DSM Desotech Inc. v. 3D Systems Corporation, 749 F.3d 1332.
24
DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses, available at :
http://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf.
25
Roundtable on Market Definition, DAF/COMP/WD(2012)28, OECD, available at :
http://ec.europa.eu/competition/international/multilateral/2012_jun_market_definition_en.pdf.
26
Kraft, supra at 16.
27
Moot Proposition, ¶ 4.
28
Commission Notice on the Definition of Relevant Market for the Purposes of Community Competition Law, available at : http://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX : 31997Y1209(01)&from=EN.
29
Hofmann-La Roche & Co. AG v. Commission of the European Communities, [1979] ECR 46.
30
Belaire Owner's Association v. DLF Limited, Case No. 19/2010, CCI.
31
William M. Landes & Richard A. Posner, Market Power in Antitrust Cases, 94 Harv. L. Rev. 937 (1981).
32
Sponge Iron Manufacturers Association v. National Mineral Development Corporation & Ors., Case No. 69/2012, CCI.
33
Richard S. Kelly, Functional Discounts Under the Robinson-Patman Act, 40 Cal. L. Rev. 526 (1953).
34
Adelman, Integration and Antitrust Policy, 63 Harv. L. Rev. 27, 29 (1949).
35
Warren S. Grimes, Brand Marketing, Intrabrand Competition, and the Multibrand Retailer : The Antitrust Law of Vertical Restraints, 64 Antitrust
L.J. 83.
36
37
Kyle Bagwell, TheEconomic Analysis of Advertising, Department of Economics Discussion Paper Series, Columbia University.
38
Id.
39
General Motors Corporation, Ford Motor Company, and Chrysler Corporation v. United States & Ors., 827 F.Supp. 774.
40
41
DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses, available at :
http://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf.
42
General Motors v. Commission, [1975] ECR 1367.
43
British Leyland Public Limited Company v. Commission, [1986] ECR 3263.
44
Supra note 1.
45
Scandlines Sverige AB v. Port of Helsingborg, COMP/A 36.568/D3, [hereinafter, ‘Helsingborg’].
46
Attheraces Limited v. The British Horseracing Board Limited, [2007] E.W.C.A. Civ. 38.
47
48
OFT (1999), Guidelines in Relation to Chapter II Prohibition Under the UK Competition Act.
49
Luc Peeperkorn, Commission Publishes Discussion Paper on Abuse of Dominance, Directorate-General Competition, Unit A-1, available at :
http://ec.europa.eu/competition/publications/cpn/2006_1_4.pdf.
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50
M/s. ESYS Information Technologies Pvt. Ltd. v. IntelCorporation (Intel Inc.) & Ors., Case No. 48/2011.
51
Helsingborg, supra at 45.
52
In Re : Neurontin Antitrust Litigation, 2013 WL 4042460.
53
Ezrachi and Gilo, Excessive Pricing, Entry, Assessment and Investment : Lessons from the Mittal Litigation, 76 ANTITRUST L.J. 873 2009-2010.
54
Google, FCA Dec. n°10-MC-01.
55
Grüne Punkt, EC Comm. Dec. 2001/463/EC.
56
Roundtable on Excessive Prices, DAF/COMP(2011)18, OECD, available at : http://www.oecd.org/daf/competition/abuse/49604207.pdf.
57
Verizon Communications Inc. v. Law Offices of Curtis V Trinko, LLP, 540 U.S. 398 (2004).
58
Napp Pharmaceutical Holdings Ltd and Subsidiaries, CA98/2/2001, [2001] UKCLR 597.
59
Mark Furse, Excessive Prices, Unfair Prices and Economic Value : The Law of Excessive Pricing UnderArticle 82 EC Andthe Chapter II Prohibition,
4 EUR . COMPETITION J. 59 2008.
60
Shri Shamsher Kataria v. Hona Siel Cars India Ltd. & Ors, Case No. 03/2011, CCI.
61
Section 3(1), the Act.
62
ABCIL, Combination Registration No. C-2015/03/256.
63
Viho Europe BV v. Commission, [1996] ECR I-5457 [hereinafter, ‘Viho’].
64
AEG Telefunken v. Commission, [1983] ECR 3151.
65
Stora Kopparbergs Bergslags AB v. Commission, [2000] ECR I-9925 [hereinafter, ‘Stora’].
66
Nada Ina Pauer, The Single Economic Entity Doctrine and Corporate Group Responsibility in European Antitrust Law, WORLD COMPETITION, 38(1),
179-180, [hereinafter, ‘Nada’].
67
José Engrácia Antunes, Liability of Corporate Groups : Autonomy and Control in Parent-SubsidiaryRelationships in US, German and EU Law,
Kluwer Law and Taxation Publishers.(1994).
68
B and Reynolds, [1987] ECR 4487.
69
Council Regulation on the Control of Concentrations between Undertakings (the EC Merger Regulation), 2004, available at : http://eur-
lex.europa.eu/legal-content/EN/ALL/?uri=CELEX : 32004R0139.
70
Nada, supra at 66.
71
Id.
72
Id.
73
Commission Notice on a Simplified Procedure for Treatment of Certain Concentrations under Council Regulation (EC) No 139/2004 [hereinafter,
‘Commission Notice on Concentrations’].
74
BLACK 'S LAW DICTIONARY 344 (West, (1999) 7th ed.).
75
Nada, supra at 66.
76
Commission Notice on Concentration, supra at 73.
77
AKZO Nobel NV v. Commission, [2007] ECR II-5049.
78
Stora, supra at 65.
79
Orkem v. Commission, [1989] ECR 3283.
80
Viho, supra at 63.
81
J. Matthew Schmitten, Antitrust's Single-Entity Doctrine : A Formalistic Approach for a Formalistic Rule,COLUMBIA JOURNAL OF LAW & SOCIAL
PROBLEMS , (Vol. 46, p. 93, Fall 2012).
82
Nada, supra at 66.
83
84
J. Matthew Schmitten, supra note 81.
85
Id.
86
Herbert Hovenkamp & Christopher R. Leslie, The Firm as a Cartel Manager, 64 VAND. L. REV. 813, 819—20 (2011), [hereinafter, ‘The Firm as a
Cartel Manager’].
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87
Id.
88
Bell Atlantic Business Systems Services v. Hitachi Data Systems Corp, 849 F. Supp. 702.
89
U.S. v. Yellow Cab Co., 332 U.S. 218.
90
Id.
91
Id.
92
Id.
93
Perma Life Muflers, Inc. v. International Parts Corp, 392 U.S. 134.
94
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752.
95
Id.
96
The Firm as a Cartel Manager, supra at 143.
97
Nada, supra at 66.
98
Communication from the Commission-Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to
Horizontal Co-operation Agreements, available at : http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A52011XC0114(04), (hereinafter,
‘Horizontal Guidelines’).
99
Id.
100
Id.
101
102
Clarifications to the Moot Proposition, No. 2.
103
Horizontal Guideline, supra at 98.
104
105
Italian Cast Glass, 1980 OJ L 383/19.
106
Siemens/Fanuc, 1984 OJ L 376/29.
107
Suiker Unie v. Commission, [1975] ECR 1663.
108
Neeraj Malhotra v. Deutsche Bank, Case No. 5/2009, CCI.
109
Jyoti Swaroop Arora v. Tulip Infratech, Case No. 59/2011, CCI.
110
In Re : Alleged Cartelization by Steel Producers, Case No. RTPE No. 09/2008, CCI.
111
Moot Proposition, ¶8.
112 rd
HDFC Securities, Retail Study, December 23 2014.
113
Indian Jute Mills Association v. CCI, Appeal No. 73/2014 & I.A. No. 110/2014, COMPAT.
114
Inter Globe Aviation Ltd. v. CCI, Appeal No. 07/2016, COMPAT.
115
M/s. All India Motor Transport Congress v. IFTRT, Appeal No. 60/2015, COMPAT.
116
Roundtable on Prosecuting Cartels without Director Evidence, OECD, DAF/COMP/GF(2006)7, available at :
https : //www.oecd.org/daf/competition/prosecutionandlawenforcement/37391162.pdf; Union of India v. Hindustan Development Corporation,
(1993) 3 SCC 499.
117
Id; Film & Television Producers Guild of India v. MAI, Case No. 37/2011, CCI.
118
In Re : Plywood Antitrust Litigation, 655 F.2d 627.
119
In Re : Coordinated Pretrial Proceedings in Petroleum Prods, Antitrust Litigation., 906 F.2d 432, 447 (9th Cir. 1990).
120
Helicopter Support Systems v. Hughes Helicopter Inc., 818 F.2d 1530; United States v. Foley, 598 F.2d 1323; Columbus Drywall & Insulation,
Inc. v. Masco Corp., 2009 WL 856306.
121
William E. Kovacic, Robert C. Marshall, Leslie M. Marx, and Halbert L. White, Plus Factors and Agreement in Antitrust Law, 110 MICH . L. REV.
393 (2011).
122
123
Id.
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124
In Re : Polyurethane FoamAntitrust Litigation, 152 F. Supp. 3d 968.
125
In Re : Cartelization in Respect of Tenders Floated by Indian Railways for Supply of Brushless DC Fans and Other Electrical Items, Suo Moto
126
Builders Association v. Cement Cartel, Case No. 29/2010, CCI, [hereinafter, ‘Cement Cartel’].
127
128
In Re : Reference filed by Shri B P Khare, Principal Chief Engineer, South Eastern Railway, Case No. 05/2011, CCI.
129
Express Industry Council of India v. Jet Airways, Case No. 30/2013, CCI.
130
Alkali and Chemical Corporation of India Ltd., v. Bayer (India) Ltd., Case No. 3/2011, CCI.
131
Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499 : AIR 1989 SC 988.
132
William E. Kovacic et al, Plus Factors and Agreement in Antitrust Law, 110 MICH . L. REV. 393 (2011-2012).
133
S M DUGAR , GUIDE TO COMPETITION LAW, (LexisNexis, Vol. 1, 6th ed., 2016).
134
135
United States v. Socony—Vacuum, 310 U.S. at 222.
136
137
Cement Cartel, supra at 89.
138
United States v. Topco Associates Inc, 405 U.S. 596 (1972).
139
140
Blackburn v. Sweeny, 53 F3d 825; US v. Cooperative Theatres of Ohio, 825 F.2d 1367.
141
In Re : Cardizem Cd Antitrust Litigation, 332 F.3d 896.
142
In Re : Wholesale Grocery Products Antitrust Litigation, 752 F.3d 728.
143
Petruzzi's IGA Supermarkets Inc. v. Darling—Delaware Co., 998 F.2d 1224.
144
Todorov v. DCH Healthcare Auth., 921 F.2d 1438.
145
Moot Proposition, ¶10.
146
AIOCD v. CCI, Appeal No. 21/2013, COMPAT.
147
M/s International Cylinder (P) Ltd. Case, Appeal No. 21/2012, COMPAT.
148
Kerela Film Exhibitors Association v. CCI, Appeal No. 100/2015, COMPAT.
149
150
Shri Ghanshyam Dass Vij v. M/s Bajaj Corp. Ltd., Case No. 68/2013, COMPAT.
151
AKZO Chemie v. Commission, [1991] ECR 3359, [hereinafter, ‘AKZ0’].
152
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153
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154
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168
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171
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172
Emerald, supra at 167.
173
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175
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176
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177
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178
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179
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180
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182
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183
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184
OFT Guidelines, supra at 181.
185
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186
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187
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Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification is being circulated on the condition and
understanding that the publisher would not be liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice rendered or accepted on the
basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only.
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Page 1 Tuesday, February 27, 2024

8th NLUJ Antitrust Moot, 2017

BEFORETHE COMPETITION APPELLATE TRIBUNAL OF BOHEMIA AT RIVERDALE

a. Presence of communication evidence. 22

Competition Commission of India, Abuse of Dominance, available at : 28

VAND. L. REV. Vanderbilt Law Review

B. Quantum of penalty should be lower.

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