8th Nluj BTM - Res

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8th NLUJ Antitrust Moot, 2017

Best Team Memorial - Respondent
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 RESPONDENTS
THE EIGHTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2017
TABLE OF CONTENTS
TABLE OF CONTENTS II
INDEX OF AUTHORITIES VI
TABLE OF ABBREVIATIONS XIV
STATEMENT OF JURISDICTION XVI
STATEMENT OF FACTS XVIII
ISSUES FOR CONSIDERATION XXI
SUMMARY OF ARGUMENTS XXII
WRITTEN SUBMISSIONS 1
I. Whether Dylon is dominant and can be held liable for contravention of Section 4(2) 1
of the Bohemian Competition Act, 2002.
A. The relevant product market is the market for ‘processing and sale of packaged 1
milk’.
i. Raw/conventional milk and packaged milk are not substitutable from the 2
demand-side.
a. Raw/conventional milk and packaged milk do not have the same end-use or 2
physical characteristics.
b. Consumer preference for raw/conventional milk and packaged milk is not 3
uniform.
ii. Raw/conventional milk and packaged milk are not substitutable from the 5
supply-side.
a. There are significant sunk costs involved in uncommitted entry. 5
B. Dylon is in a dominant position. 6
i. Dylon enjoys great market power and is acting independent of competition. 6
ii. The market share of Dylon is adequate to establish dominance. 6
iii. The size and resources of Dylon give it a competitive advantage. 7
iv. Economic power and commercial advantages. 7
a. Economies of scope and a wide product range. 7
b. Financial power and profitability of Dylon. 8
v. Vertical integration of Dylon. 8
vi. Barriers to entry. 9
a. Existence of sunk costs for new entrants. 9
b. Possession of patent rights. 9
c. Enjoyment of economies of scale. 9
C. Dylon has abused its dominant position. 10
i. The price charged by Dylon is excessive as compared to other products. 10
ii. The price of the product is not commensurate with its economic value. 11
iii. Price regulation is necessary since the market is not self-corrective. 11
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II. Whether Adiva, Brick, Cautious and Detro constitute a single economic entity with 13
Acme as their parent.
A. The cattle feed manufacturers form a group for the purposes of the Act. 14
B. Acme exercised legal control over the parties. 15
C. There is a complete identity of interests between the parties and Acme. 15
III. Whether Adiva, Brick, Cautious and Detro are liable for contravention of section 3 19
(3) of the Bohemian Competition Act, 2002.
A. The R&D Agreement is not anti-competitive. 19
B. The parties have not formed a cartel. 21
i. There is no agreement between the parties. 21
ii. There are no factors of collusion established between the parties. 21
a. Conscious parallelism in an oligopoly. 22
b. Circumstantial evidence adduced is consistent with independent conduct. 23
C. The conduct of parties has not caused AAEC. 27
IV. Whether RAM is entitled to claim compensation under Section 53N of the 28
Bohemian Competition Act, 2002.
A. The legislative intent of the section allows for an application for compensation 28
before the Competition Appellate Tribunal.
B. RAM has necessary standing to bring a representative suit under Order 1 Rule 8 29
of the Code of Civil Procedure.
i. The direct purchasers and end-consumer have a community of interest. 29
ii. The purchasers have suffered actual damage. 31
a. The purchasers are entitled to Dylon's illegal gain. 31
b. The purchasers have paid an excessive price. 32
iii. That the defence of passing on is not available to Dylon against the direct 33
purchasers.
iv. The dual-stage approach negates the possibility of passing on of overcharge. 33
V. Whether the imposition and quantum of penalty imposed on Dylon by the CCB is 35
sustainable.
A. The assessment of penalty on the basis of average turnover is justified. 35
B. The quantum of penalty levied by the CCB is justified. 38
C. Purpose of penalties. 39
PRAYER XXVI
INDEX OF AUTHORITIES
CASES
AKZO Chemie BV v. Commission, [1991] ECR I-3359. 7
AKZO Nobel NV v. Commission, [2007] ECR II-5049. 16
All India Motor Transport Congress v. Indian Foundation of Transport Research & Training 21
&Ors., Appeal No. 20/2015, COMPAT.
Allgemeine Elektrizitäts-Gesellschaft AEG-Telefunken AG v. Commission, [1983] ECR 14
3151.
Arla Foods/Milch-Union Hocheifel, Case No. COMP/M.6627. 3
Arla Foods/Milk Link, Case No. COMP/M.6611. 3
Atlantic Container Line AB and others v. EC Commission, [2002] ECR II-1125. 39
Avebe v. Commission, [2006] ECR 3085. 15
B.A.T. & Ors. v. Commission, [1987] ECR 4487. 17
BCL Old Co. Ltd. & Ors. v. Aventis SA & Ors., [2005] CAT 2. 33
BPB Industries Plc., (1989) O.J. L 10/50. 8, 10
Britania Alloys and Chemicals v. Commission Case C-76/06 P, European Court of Justice. 38
British Leyland Public Limited Company v. Commission, [1986] ECR 3263. 11
Builders Association of India v. Cement Manufacturers’ Association & Ors., Case No. 24
29/2010, CCI
Centrafarm B.V. & Adriaan De Peijper v. Sterling Drug Inc., [1974] ECR 1174. 16
Chief Materials Manager v. Milton Industries Ltd., Reference Case No. 02/2014, CCI. 27
Christiani & Nielsen, [1969], OJ Nr. L 165/12 24
Cine Prakashakula Viniyoga Darula Sangham v. Hindustan Coca Cola Beverages Pvt. Ltd, 3
Case No. UTPE-99/2009 & RTPE-16/2009, CCI.
Coast Cities Truck Sales, Inc. v. Navistar Intern. Transp. Co., 912 F. Supp. 747. 15
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Coleman v. Cannon Oil Co., 849 F.Supp.1458. 23

Competition Commission of India v. Steel Authority of India Limited and Another, (2010) 29
10 SCC 744.
Consim Info Private Limited v. Google Inc., USA & Ors., Case Nos. 07 & 30/2012, CCI. 38
Continental Can, Case 85/76 [1972] ECR 215. 5
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752. 13
Courage Ltd v. Bernard Crehan and Bernard Crehan v. Courage Ltd and others Case C- 28
453/99, European Court of Justice.
Eurofix-Bauco v. Hilti, Case No. IV/30.787 and 31.488. 7
ExcelCorp Care Ltd. v. CCI, Appeal No. 79/2012, COMPAT. 36
Exclusive Motors Pvt. Ltd. v. Automobili Lamborghini SPA, Appeal No. 01/2013, COMPAT. 14
Freeman v. San Diego Association of Realtors, 322 F. 3d 1133. 17
Friesland Foods/Campina, Case No. COMP/M.5046. 2
General Motors v. Commission, [1975] ECR 1367. 10
Grasim Industries Limited and Aditya Birla Chemicals Limited, (Combination Registration 13, 14
No. C-2015/03/256).
Hofmann-La Roche & Co. AG v. Commission of the European Communities, [1979] ECR 6, 7
461.
Holcim Limited/Lafarge S.A., Combination Registration No. C-2014/07/190, CCI. 3
Hydrotherm v. Compact, [1984] ECR 2999. 13
In Re: All India Tyre Dealer's Federation v. Tyre Manufacturers, Case No. 20/2008, CCI 23
In Re: Alleged Cartelization by Steel Producers, Case No. RTPE No. 09/2008, CCI 21
In Re: Austin Motor Car Co. Ltd., (1957) LR 1 RP 6. 21
In Re: Chemists & Druggists Association, Goa, Glenmark Company & M/s Wockhardt Ltd., 26
Suo-Moto Case No. 05/2013, CCI.
In Re: Elevator Antitrust Litig., 502 F.3d 47. 26
In Re: Federation of Indian Airlines, Case No. RTPE 3/2008, CCI 27
In Re: Flat Glass Antitrust Litig., 385 F.3d 350. 23
In Re: Glassine & Greaseproof Paper Antitrust Litig., 88 F.R.D. 302 30
In Re: Glassine & Greaseproof Paper Antitrust Litig., 88 F.R.D. 302. 30
In Re: High Fructose Corn Syrup Antitrust Litig., 295 F.3d 662. 24
In Re: Ins. Brokerage Antitrust Litig., 618 F.3d 300. 26
In Re: M/s Consim Info Private Limited, Case No. 7/2012, CCI. 38
In Re: NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493. 30
In Re: Sumitomo Copper Litigation, 182 F.R.D. 85. 30
In Re: Suo-moto Case against LPG Cylinder Manufacturers, Case No. 03/2011, CCI. 22
Kashmir Singh v. Harnam Singh, (2008) 12 SCC 796. 29
Knutson v. Daily Review, Inc., 548 F.2d 795. 33
Krehl v. Baskin—Robbins Ice Cream Co., 664 F.2d 1348. 26
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574. 25
MCX v. NSE, Case No. 13/2009, CCI. 35, 36
Michelin II, (2002) O.J. L 143/1. 7, 8
Michelin, Case 322/81 [1983] ECR 3461. 5
Microsoft, Case No. COMP/C-3/37.792. 7
Musique Diffusion Française v. EC Commission, [1983] ECR 1825. 35, 39
Nestle/Perrier, Case No. IV/M. 190. 4
NV Nederlandsche Industrie Michelin v. Commission, [1983] ECR 3461. 7
Parke, Davis v. Probel Reese, [1968] C.J. Comm. E. Rec. 72. 11
Peijper v. Winthrop B.V., [1974] ECR 1138. 16
Petruzzi IGA Supermarkets v. Darling-Delaware Co., 677 F.Supp. 289. 26
Pink Supply Corp. v. Hiebert, Inc. 612 F.Supp. 1334. 18
Refresco Group/Pride Foods, Case No. COMP/M.6924. 4
Rosen v. Hyundai Group (Korea), 829 F. Supp. 41. 15
Sameer Agarwal v. CCI, Appeal No. 73/2016, COMPAT. 21
Scandlines Sverige AB v. Port of Helsingborg, COMP/A 36.568/D3. 11
Shailesh Kumar v. Tata Chemicals Ltd., Case No. 66/2011, CCI 23, 27
Shawn Sullivan v. D.B. Investments Inc., 667 F.3d 273. 31
Shell v. Commission, [1992] ECR II-757. 13
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Siemens/Fanuc, 1985 O.J. L 376/29. 20

State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu, AIR 1965 SC 11. 29
Tamilnadu Consumer Products Distributors Association v. Britannia Industries Ltd., Case 3
No. 106/2015, CCI.
Tetra Pak II, (1992) O.J. L 72/1. 8
Tetra Pak International SA v. Commission, Case C-333/94 P [1996] ECR I-5951. 4
United Brands Company & United Brands Continental BV v. Commission, [1978] ECR 1, 8, 10
207.
Viho Europe BV v. Commission, [1996] ECR I-5457. 13
Vimal Singh Rajput v. CCI, Appeal No. 27/2016, COMPAT. 36
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100. 33
STATUTES
The Clayton Antitrust Act, 1914. 28
The Code of Civil Procedure, 1908 28
The Competition Act, 2002 (India). 1
BOOKS
RICHARD WHISH & DAVID BAILEY, COMPETITION LAW (Oxford University Press, 7
th
ed., 9
2012).
S M DUGAR, GUIDE TO COMPETITION LAW (LexisNexis, Vol. 1, 6th ed., 2016). 22
VAN BAEL & BELLIS, COMPETITION LAW OF THE EUROPEAN COMMUNITY (5
th
ed., Kluwer Law 20
International, 2009).
ARTICLES
Blair and Durrance, Economic Pitfalls in Antitrust Class Certification, 21-SUM ANTITRUST 33
69.
Fabio Polverino, A Class Action Model for Antitrust Damages Litigation in the European 31
Union, Kluwer Law International 2007, Volume 30 Issue 3.
John Temple Lang, Some Aspects of Abuse of Dominant Positions in European 11
Community Antitrust Law, FORDHAM I NTERNATIONAL LAW JOURNAL, Volume 3, Issue 1 1979.
Massimo Motta & Alexandre de Streel, “Excessive Pricing in Competition Law: Never Say 12
Never?” in The Pros and Cons of High Prices, Konkurrensverket Swedish Competition
Authority, 2007.
Nada Ina Pauer, The Single Economic Entity Doctrine and Corporate Group Responsibility 16, 17, 24
in European Antitrust Law, WORLD COMPETITION, 38(1)
Paul W. Farris, Using Steiner's Dual-Stage Model to Develop Better Measures of Retail 34
Distribution, 49 ANTITRUST BULL. 941 2004.
Polverino, Class Action Model for Antitrust Damages Litigation in the European Union, 29
WORLD COMPETITION LAW AND ECONOMICS REVIEW, Kluwer Law International 2007, Volume
30 Issue 3.
Robert L. Steiner, A Dual-Stage View of the Consumer Goods Economy,JOURNAL OF 34
ECONOMIC I SSUES, Vol. 35, No. 1 (Mar., 2001).
Robert L. Steiner, How Manufacturer's Deal with the Price Cutting Retailer: When are 34
Vertical Restraints Efficient?, 65 Antitrust L.J. 407 1996-1997.
Robert L. Steiner, The Evolution and Applications of Dual-Stage Thinking, 49 ANTITRUST 33, 34
BULL. 877 2004.
OTHERS.
th
54 Law Commission Report, available at: http://lawcommissionofindia.nic.in/51100/Report54.pdf. 29
Commission Guidelines on Applicability of Article 81 of the EC Treaty to Horizontal Cooperation 19
Agreements, OJ2001C3/2, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?
uri=CELEX:52011XC0114(04)&from=EN, [hereinafter, ‘Horizontal Guidelines’].
Commission Notice - Guidelines on Vertical Restraints, 2000/C 291/01, available at: 6
http://ec.europa.eu/competition/antitrust/legislation/guidelines_vertical_en.pdf.
Commission Notice on the Definition of Relevant Market for the Purposes of Community Competition 2
Law, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31997Y1209(01)
&from=EN.
Commission Regulation on the Application of Article 101(3) of the Treaty on the Functioning of the 20
European Union to Certain Categories of Research and Development Agreements, available at:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:335:0036:0042:EN:PDF.
Commission Regulation on the Application of Article 81(3) of the Treaty to Categories of Research 19
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and Development Agreements, Article 2(4), available at: http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX%3A32000R2659.
Communication from the Commission-Guidelines on the applicability of Article 101 of the Treaty on 16
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’).
Directive 2014/104/EU Of The European Parliament And Of The Council on Certain Rules Governing 28
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. [Hereinafter ‘Directive 2014/104/EU’].
Far East Trade Tariff Charges and Surcharges Agreement (FETTCSA), [2000] O.J. L 268/1. 39
Guidelines on the Method of Setting Fines Imposed Pursuant to Article 23(2)(a) of Regulation No 37,
1/2003, available at: http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52006XC0901 38
(01).
Milk and Dairy Products in Human Nutrition, Food and Agricultural Organization of the United 2
Nations. [E-ISBN 978-92-5-107864-8 (PDF)].
OFT (1999), Guidelines on the Assessment of Market Power. 9
OFT (2012), Guidance as to the Appropriate Amount of a Penalty., available at: 37
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284393/oft423.pdf.
Padilla, The Role of Supply-side Substitution in the Definition of the Relevant Market in Merger 5
Control, A Report for DG Enterprise A/4, European Commission, available at:
file:///C:/Users/WinDOWS/Downloads/supply-side_substitution_2682%20(1).pdf.
Practice of Defining Markets in the Media Sector, available at: 4
http://ec.europa.eu/competition/sectors/media/documents/chapter_1_ec.pdf.
Rafael Allendesalazar, Oligopolies, Conscious Parallelism and Concertation, European Competition 22
Law Annual, 2006, available at: http://www.eui.eu/RSCAS/Research/Competition/2006
(pdf)/200610-COMPed-Allendesalazar.pdf.
Roundtable on Private Remedies: Passing on Remedies; Indirect Purchaser Standing; Definition of 31,
Damages, DAF/COMP/WP3/WD(2006)9, OECD, 2006, available at: 32
http://ec.europa.eu/competition/international/multilateral/2006_feb_private_remedies.pdf.
Roundtables on Demand-Side Economics for Consumer Policy: Summary Report, DSTI/CP(2006) 4
3/FINAL, OECD, available at: https://www.oecd.org/sti/consumer/36581073.pdf.
Roundtables on Excessive Prices, DAF/COMP(2011), OECD, available at: 12
http://www.oecd.org/daf/competition/abuse/49604207.pdf.
TABLE OF ABBREVIATIONS
ABBREVIATION FULL FORM
AIR All India Reports
Antitrust Bull. Antitrust Bulletin
Antitrust L.J. Antitrust Law Journal
CAT Competition Appellate Tribunal, UK
CCB Competition Commission of Bohemia
CCI Competition Commission of India
CMA Competition and Markets Authority
COMPAT Competition Appellate Tribunal, India
DG Director General
ECR European Court Reports
Edn. Edition
F.2d Federal Reporter, Second Series
F.3d Federal Reporter, Third Series
F.R.D. Federal Rules Decision
F.Supp. Federal Supplement
Inc. Incorporated
LR RP Law Report, Restrictive Practices, UK
O.J. L Official Journal of the European Union
OECD Organisation for Economic Co-operation and Development
OFT Office of Fair Trading
SC Supreme Court
SCC Supreme Court Cases
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TFEU Treaty on the Functioning of the European Union

U.S. United States Reports
UK United Kingdom
Vol Volume
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 StateGovernment 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.”
The Respondents submit to the jurisdiction of the Hon'ble Appellate Tribunal.
STATEMENT OF FACTS
The Parties
• DylonNutricia (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, which 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.
a. Competition Commission of Bohemia (CCB).
b. Mother Care and Child Care (MCC), a non-governmental organisation.
c. Retailer's Association for Milk (RAM).
Factual Background
1. The Bohemian dairy market includes Anmol, Dairy Fresh Ltd., Farm Everyday, (Peer Companies) and
Dylon. However, Dylon is the only producer who owns dairy farms and uses robotic milkers and other
automated machines.
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 demand for its packaged milk. The
collective market share of the other Peer Companies fell to 36%.
3. In August 2012, due to an unfortunate incident of 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 its joint
ventures (JVs) between October and November 2012, which, post certification began manufacturing
in June 2013. Their prices did not move in tandem but were largely similar.
5. In November 2014, a global recession hit the Bohemian economy causing a reduction supply of cattle
feed, starting mid-December 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 for 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
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and Detro under Section 19(1)(a) for cartelisation in the manufacture of cattle feed by 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; there was an extraordinary increase of 105% in the price charged
by 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 cattle feed manufacturers, it was revealed that
on 20 December 2014, the representatives of all the cattle feed manufacturers 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 dated the same day.
12. The DG in his 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 liable for contravention under Section 4(2) as firstly, the relevant product market is the market
for ‘processing and sale of packaged milk’ as raw/conventional milk and packaged milk are not
substitutable either from the demand-side or the supply-side. Due to differences in perceived benefits of
the nutritional quality of milk, longer-shelf life of packaged milk, convenience associated with the delivery
of different packaging formats and desire for purity and health while consuming milk, the two are not
interchangeable. Secondly, since supply-side substitutability will involve not only sunk costs and
additional investments, but also an inability to switch production in a relatively short period of time, there
exist two separate antitrust markets. Thirdly, Dylon's dominance in the market, by virtue of its large
market shares, commercial, economic and financial advantages and existence of barriers to entry and
expansion, has allowed Dylon to operate independent of competition. Fourthly, Dylon has abused its
dominant position by charging an unfair price as they are excessive in comparison with other products and
which are not commensurate with the economic value of the packaged milk. Failure to regulate prices in a
market where erosion of supra-competitive prices will not take place due to market failures will be
erroneous on the part of the CCB.
II. WHETHER ADIVA, BRICK, CAUTIOUS AND DETRO CONSTITUTE A SINGLE ECONOMIC ENTITY WITH ACME AS
THEIR PARENT.
The cattle feed manufacturers constitute a single economic entity as firstly, the parent company, Acme,
holds more than fifty percent shares in the manufactures' companies. Shareholding indicates hierarchical
structure of control as seen in the present case. This also indicates ability to have decisive influence over
the policies of the cattle feed manufacturers thereby disqualifying them as effective centres of power in the
market. Further, the doctrine of single economic entity extends to sister corporations where there is unity
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of interests among all the corporations. Since the four entities were formed to further the interests of the
parent, Acme, they were mere functionalities of the parent corporation. Secondly, the R&D agreement
indicates an internal structure of cooperation among the cattle feed manufacturers. The pricing policy and
economic policies of the four cattle feed manufacturers denote unity of interest along with the parent.
Thirdly, the agreements between the undertakings constitute internal business arrangements. Fourthly,
the de jure control denoted by shareholding, as well as the defacto control indicated by the unified
business policies, comprehensively proves a single corporate conscience between the parent and the cattle
feed manufacturers. This makes them incapable of competing with each other. Hence, they constitute a
single economic entity for the purpose of competition law.
III. WHETHER ADIVA, BRICK, CAUTIOUS AND DETRO ARE LIABLE FOR CONTRAVENTION OF SECTION 3(3) OF
THE BOHEMIAN COMPETITION ACT , 2002.
The cattle feed manufacturers are not liable for contravention of Section 3(3) as firstly, the R&D
Agreement entered into between the cattle feed manufacturers is not anti-competitive. It contributes to
cost efficient progress on the technological front. There has also been no integration beyond the scope of
the agreement. Secondly, the cattle feed manufacturers have not engaged in cartelisation since there was
no agreement between the parties. There is also an absence of collusion since the factors of collusion
cannot be established. Conscious price parallelism is a feature of an oligopolistic market hence; price
parallelism is not conclusive proof of collusion. Further, the alleged control of supply is wholly a product of
the operative demand and supply forces of the market. Thirdly, the communication evidence is
unsubstantiated and the circumstantial evidence is consistent with independent conduct of the parties.
Fourthly, there is no appreciable adverse effect of the agreement on the competition in Bohemia.
IV. WHETHER RAM IS ENTITLED TO CLAIM COMPENSATION UNDER SECTION 53N OF THE BOHEMIAN
COMPETITION ACT , 2002.
RAM is entitled to compensation on behalf of retailers as well as consumers as firstly, the literal
interpretation of Section 53N, in line with the legislative intent, allows any person who has suffered any
loss or damage to claim compensation from the dominant undertaking once guilt of such undertaking
having abused its dominance is established either by the CCI or by COMPAT. Secondly, RAM has the
necessary standing required in order to bring a representative action primarily since there exist no
disqualifying conflicts of interest and hypothetical conflicts, including proof of damages, are not sufficient
to vitiate the same. As long as the direct purchasers and end-consumers have suffered from a common
antitrust injury they shall be entitled to receive compensation. Thirdly, the purchasers of Dylon's
packaged milk are entitled to its illegal gain due to difficulty in proving actual damages. In such a case, an
ex aequo et bono estimation of damages is appropriate, particularly, when they have paid an excessive
price. Fourthly, the retailers are entitled to compensation due to an inability on their part to pass on the
illegal overcharge to their own customers. The dual-stage approach recognizes intra-brand competition at
the retail level and consequent lower retail gross margins, which makes passing on even more difficult.
The imposition of penalty is sustainable as firstly, the CCI is empowered to consider the total turnover
of the undertaking while assessing penalty. Only total or average turnover of the entity can sufficiently
indicate the gravity of violation. Hence, CCI's consideration of total average turnover is justified.
Secondly, relevant turnover is only considered when the goods are unrelated to each other, which is not
happening in the present case. Thirdly, the principles of relevant turnover cannot be imported from the EU
jurisprudence since the three stages of penalty assessment which incorporate aggravating circumstances
are absent in the Bohemian Competition law. Fourthly, the ability of firm to pay constitutes a relevant
factor to be considered while assessing the base penalty. Taking into consideration Dylon's ability to pay
and the fact that the gravity of violation is pernicious, the penalty imposed by the CCB is completely
justified.
WRITTEN SUBMISSIONS
I. WHETHER DYLON IS DOMINANT AND CAN BE HELD LIABLE FOR CONTRAVENTION OF SECTION 4(2) OF THE
BOHEMIAN COMPETITION ACT , 2002.
1
Dominant position enjoyed by an enterprise allows it to operate independent of competition. Section 4
(1) of the Act2 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 packaged milk’.
Market definition is a tool used to identify and define the boundaries between firms and establish the
framework within which competition policy is to be applied. Relevant market has been defined under
Section 2(r) of the Act, as the market which may be determined by the Competition Commission of India
[hereinafter, ‘CCI’] with reference to the relevant product market or the relevant geographic market or
both.
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Under Section 2(t) of the Act, relevant product market has been defined as, 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 intended use. 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 not substitutable from the demand-side.
An analysis of the product characteristics and its intended use allows the Commission of the European
Communities [hereinafter, ‘Commission’], to limit the field of investigation of possible substitutes.
Functional interchangeability in characteristics may not provide sufficient criteria, because the
responsiveness of customers to relative price changes may be determined by other considerations as well.
3
Thus, customer's value of different characteristics must be considered.
a. Raw/conventional milk and packaged milk do not have the same end-use or physical characteristics.
It has been observed that consumers prefer to buy raw milk and boil it themselves rather than pay
more for pasteurized, packaged milk, while others choose to consume raw milk, because they believe that
4
it is more pure, natural and healthy than industrialized milk.
Due to the perceived benefits of raw/natural milk, interchangability between raw milk and packaged
milk is rare. In light of such differences in physical characteristics, and the importance consumer's
associate to nutritional aspects, it can safely be concluded that the markets for the sale of
raw/conventional milk vis-a-vis the sale of packaged milk are separate antitrust markets.
It is also pertinent to note that in Friesland Foods5, the Commission held that there is a separate market
6
for Long-life milk. The same was followed in Arla Foods , wherein, the Commission confirmed the relevance
of the distinction between fresh milk and Long-life milk.7 The Commission in these cases recognized the
longer shelf-life of Long-life milk. While defining the relevant market the CCI has also taken ‘shelf-life’ into
8
consideration.
Further, in Britannia Industries Ltd.9, biscuits were distinguished, inter alia, from other products on the
basis of its greater shelf-life and were considered to be in a separate and distinct relevant market.
Thus, it is submitted that, since packaged milk (which is inclusive of Long-life milk) has a considerably
longer shelf-life than raw/conventional milk and due to perceived differences in nutritional content, the two
fall in two separate markets.
b. Consumer preference for raw/conventional milk and packaged milk is not uniform.
Consumer preference as an individual decision to choose one alternative out of a set of mutually
exclusive alternatives depends on:
1. Tastes (preferences); and,
10
2. Feasible alternatives (constraints).
All decision makers in markets are assumed to approach markets with their needs and preferences
already determined, undertaking a comprehensive search of all alternatives, weighing the costs and
benefits, and then making decisions which maximise their welfare.11
In Refresco Group12, the Commission noted that retailers tend to consider that different consumers
prefer different formats and therefore each packaging format has its own particular demand, thus
concluding that carton and aseptic PET are considered as belonging to separate markets.
Further, while evaluating relevant market in Tetra Pak13, it was held that, in the light of their very
different physical characteristics and the system of doorstep delivery, forms of packaging were not
interchangeable and that environmental factors led some consumers to prefer certain types of packaging.
The same applied to consumers who, conversely, were attracted to a certain convenience in using products
packaged in a particular manner.
In addition, the preferences of consumers may be influenced according to the brands used for the same
14
product or by other factors like the alleged ‘characteristics’ of a product such as ‘purity and health’. The
Commission in Nestle15, noted that consumers look at the natural aspects of a products and its association
with purity, cleanliness, absence of contamination and, in general, health and a healthy style of life. Thus,
products which do not considerably satisfy the above elements will not be considered as interchangeable or
substitutable.
It is therefore submitted that in the present case, considering the differences in packaging, along with
associated convenience and quality, raw/conventional milk and packaged milk will not fall in a single
relevant market.
ii. Raw/conventional milk and packaged milk are not substitutable from the supply-side.
Supply-side substitution can be assimilated to a form of ‘uncommitted entry’, where entrants profitably
exploit any price increase by making their products available in the short-run and leaving the market
(without cost) as soon as prices decline. It is in this respect that the constraint imposed on the pricing
16
incentives of incumbent firms is equivalent to that created by readily available demand substitutes.
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a. There are significant sunk costs involved in uncommitted entry.

A necessary condition for two products to be considered supply-side substitutes is that the supplier of
one of them already owns all the assets needed to produce the other. This applies not only to production
assets, but also to marketing and distribution assets, as supply-side substitution will only be effective if
producers are able to market their goods, but also produce them, in a relatively short period of time.17 It is
18
also necessary that redeploying these assets involve, in particular no sunk costs.
The European Court of Justice clearly established the importance of the incorporating supply side
substitutability at the market definition stage in Continental Can19, whichwas reaffirmed in Michelin.20
It is therefore submitted that in the present case, since uncommitted entry by milk producers in terms
of switching to production of packaged milk, involves not only sunk costs but also is impossible in a
relatively short period of time there is a lack of supply-side substitutability. Thus, the relevant market in
the present case is the ‘processing and sale of packaged milk’ and not the ‘processing and sale of milk’.
B. Dylon is 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
21
extent independently of its competitors, its customers and ultimately of the consumers. Section 19(4) of
the Act lays down the various factors of dominance which must be taken into consideration.
i. Dylon enjoys great market power and is acting independent of competition.
The Commission considers that market power is essentially measured by reference to the power of the
undertaking concerned to raise prices by restricting output without incurring a significant loss of sales or
revenues.22
In the present case, it can be seen that the price of packaged milk increased by 105% and yet there
23
was a subsequent increase in sales. This is a clear indicator of dominance of Dylon in the relevant
market.
ii. The market share of Dylon is adequate to establish dominance.
The Commission has held that although the importance of the market shares may vary, large shares are
in themselves, evidence of the existence of a dominant position.24 Maintenance of large market shares puts
the enterprise in a position of strength and makes itan unavoidable trading partner, which are features of
25
being in a dominant position.
26
This position was reiterated in AKZO , where a market share of 50% was found to be indicative of
dominance. The current position of law as laid out in Microsoft27, is such that the presence of market
power, though not conclusive raises a strong presumption of dominance.
Therefore, apart from Dylon's large market share, it necessary to further evaluate the factors laid down
in Section 19(4) of the Act.
iii. The size and resources of Dylon give it a competitive advantage.
28 29
The Commission has taken into account, the factor of ‘indisputable technological lead’. This implies
that a technologically sound undertaking will possess the means to distinguishing its products and will be
able to improve overall productivity and efficiency.30
iv. Economic power and commercial advantages.
a. Economies of scope and a wide product range.
31
Wide range of products and position to offer them to an ever increasing number of customer groups is
reached32, has been regarded as pertinent in assessing dominance in the respective cases. In Tetra Pak
33
II , the Commission referred to the diversity of Tetra Pak's products and geographical locations, which
made it less dependent on various fluctuations and allowed it, to make financial sacrifices on one or other
of its products without affecting the overall profitability of its operations.
b. Financial power and profitability of Dylon.
The Commission has referred to advantages of belonging to groups of undertakings operating
34
throughout the world in terms of a lead over competitors and matters of investment and research and
the special extent of its range of products. In BPB Industries35, the Commission held that it was necessary
to consider not only the position of BPB in the market but also its technological and financial resources.
v. Vertical integration of Dylon.
In United Brands36, the Commission identified vertical integration as the major barrier to entry for
potential competitors into the market. The Court also held that upward vertical integration and tie up with
supply chains can contribute to reduction in input costs of the dominant firm. This is also seen to improve
commercial strength and viability. In the present case, Dylon has his own farms which shows vertical
37
integration with the supply chain.
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vi. Barriers to entry.

a. Existence of sunk costs for new entrants.
Sunk costs are costs that must be incurred in order to compete in a given market, which are not
recoverable upon exit. The Commission has noted38 that large capital investments, introduction of an
essential system of logistics, economies of scale from which newcomers to the market cannot derive any
immediate benefit and the actual cost of entry made up, inter alia, all of the general expenses incurred in
penetrating the market such as the setting up of an adequate commercial network, the mounting of very
large-scale advertising campaigns, all those financial risks, the costs of which are irrecoverable if the
attempt fails.
b. Possession of patent rights.
39
The principle of productivity and efficiency also applies to intellectual property rights. Any reference to
the patents held by a company as a factor conducive to market power should have previously taken due
account of alternative paths including teaming efforts available for other companies active in the relevant
markets to compete on an equal footing without necessarily infringing the company's patent rights.40
41
Hence, it is submitted that Dylon's patent is a barrier to entry.
c. Enjoyment of economies of scale.
In the presence of large economies of scale and economies of scope, a potential entrant may be
deterred or delayed for a substantial period of time from entering the market due to the perceived
difficulty of competing successfully against the incumbent who has already attracted such scale/scope
42
economies.
C. Dylon has 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 charged by Dylon is excessive as compared to other products.
43
In General Motors , it was held that it might be abusive to impose a price which is excessive in relation
to the economic value of the service provided. Hence, one form of abuse can also be excessive pricing by a
firm.
Further, in United Brands44, it was held that:
“it advisable to ascertain whether the dominant undertaking has made use of the opportunities
arising out of its dominant position in such a way as to reap trading benefits which it would not have
reaped if there had been normal and sufficiently effective competition”.
It was further observed that one way of determining objectively whether prices were excessive would be
by comparing selling price and production cost to calculate the profit margin:
“The question to be determined is whether the difference between the costs actually incurred and the
price actually charged is excessive” and if this is so “to consider whether a price has been imposed
which is either unfair in itself or when compared to competing products.”
The comparison with prices charged in a similar but competitive market includes both prices charged by
one dominant firm in a competitive market, and prices charged by other firms in comparable competitive
markets.45 Thus, there must be a comparison between prices charged by the dominant firm in different
46
markets. In the present case, Dylon clearly charged an excessive price compared to his competitors and
the same can be concluded as unfair.
ii. The price of the product is not commensurate with its economic value.
It is suggested that to be an abuse the value received must be grossly disproportionate to the value
given47, and outside the limits of what is reasonable.48 There is greater scope for exploitation of dominance
49
over necessary goods than over unnecessary luxuries. As the demand for necessary goods is relatively
inflexible, it is important that excessive prices should not be charged for necessary products or services.
The difficulties of deciding the maximum ‘fair’ price for unnecessary or luxury goods are enormously
greater than for essential goods.50
iii. Price regulation is necessary since the market is not self-corrective.
The harm to consumers resulting from excessive prices provides a strong argument in support of
competition law intervention, particularly where the market cannot self-correct. In an industry where there
are high and non-transitory barriers, intervention to correct the practices of the dominant firm gain
legitimacy.51
Among the three kinds of barriers that exist, i.e. legal, structural and strategic, only strategicentry
barriers can directly be tackled by competition authorities by pursuing the underlying exclusionary
conduct. The proposed screen is therefore focussing on the former two types of entry barriers, in particular,
structural barriers.52
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In the present case, there are industry specific barriers to entry into the market like integration and cost
of investment. High and non-transitory entry barriers defined in this way basically imply that there is
neither an effective way for the competition authority to tackle the entry barriers directly nor a hope that
such barriers are only of a transitory nature. If that is the case, the authority can tackle barriers indirectly
53
by advocating in favour of lifting structural barriers through regulatory solutions.
II. WHETHER ADIVA, BRICK, CAUTIOUS AND DETRO CONSTITUTE A SINGLE ECONOMIC ENTITY WITH ACME AS
THEIR PARENT.
The term ‘enterprise’ has been explained in Hydrotherm54,
“a unitary organization of personal, tangible and intangible elements which pursues a specific
55
economic aim on a long-term basis”.
Hence, applying competition law to a single economic entity, the subsidiaries' conduct is to be imputed
56
to the parent company which carries out the instructions given to it directly or indirectly. A similar idea
was expressed in Copperweld57, where it was held that the economic interests of a corporation and its
subsidiary are to be considered unitary and the two should be considered one entity for purposes of the
antitrust laws.
In the present case, the parties were joint ventureswith a common parent, Acme, controlling more than
50% shares in them.58 Since the parties constitute sister companies owned by one same parent company,
they will be amenable to the single economic entity doctrine.
59
In ABCIL , a per se exclusion from the single economic entity doctrine was proposed for those entities
in which parent companies have less than 50% shareholding. However, in all other cases, the commission
proposed a rule of reason analysis.60
Another important fact to be looked at is, if they have been consistent in their behaviour as a single
economic entity, subsequent to their coordinated behaviour under the claim of ‘single economic entity’.61
The crucial question, therefore, is whether the parties to an agreement are independent in their decision
-making or whether one is able to exercise decisive influence over the other, with the result that the latter
does not enjoy ‘real autonomy’ in determining its commercial policy on the market.62
A. The cattle feed manufacturers form a group for the purposes of the Act.
Under Section 5 of the Act, ‘group’ shall have the same meaning as assigned to it in clause (b) of the
Explanation to Section 5, ‘group’ means two or more enterprises which, directly or indirectly, are in a
position to:
1. Exercise 26% or more of the voting rights in the other enterprise; or
2. Appoint more than 50% of the members of the board of directors in the other enterprise; or
3. Control the management or affairs of the other enterprise.
It is clear from the definition that the parties are a part of the same group with Acme and hence, single
63
economic entity. Now, the issue is whether the parent exercises decisive influence over the parties since,
competition is recognized as being impossible when one entity is able to influence or determine policy that
the other intends to adopt in the market.64
B. Acme exercised legal control over the parties.
In Avebe65, it was found that to presume decisive influence, 50% ownership could be sufficient. The
current position adopted is that separate legal entities with a common owner are presumednot to be
66
capable of competing which was set out in Copperweld.
In the US, courts have laid down the following parameters for assessing decisive influence:
1. If the firms are inextricably intertwined in the same corporate mission;
2. Are bound by the same interests who are affected by the same occurrences; and
67
3. Exist to accomplish essentially the same objectives.
The court concluded in this case that a 70 percent ownership of the subsidiary was sufficient to dictate
the objectives and actions of the subsidiary, thereby making it incapable of conspiring with its
68
subsidiary. Hence, we conclude based on shareholding of the Acme over the parties that the parent is
capable of influencing their decision and the parties form a single economic entity.
C. There is a complete identity of interests between the parties and Acme.
One reason why ownership precludes the possibility of competition between a parent company and its
wholly-owned subsidiary is that those companies have an identity of interests. The US Supreme Court
69
stated that, the parent and subsidiary always have a ‘unity of purpose or a common design. For this
reason there is a complete coincidence of interests between the parent company and its wholly-owned
subsidiary70 and thus a parent company and its subsidiaries undoubtedly constitute undertakings.71
It may be the case therefore, that siblings have a capacity to disagree amongst themselves, so that in
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the absence of parental intervention in the exercise of hierarchical power, they would be subject to
antitrust liability. However, the view expressed by the Commission is that sibling organizations are
incapable of entering into agreements for the purpose of Article 101.72
73
The parties were controlled by the same parent , which is proof of hierarchical power structure between
them. Moreover, the attribution of liability depends on the fact that the parent corporation has at least the
possibility to control the conduct of its subsidiaries.74
While examining the scope and intensity of the term of a ‘single economic entity’, the factor that needs
to be considered is whether the application of the so-called ‘group-privilege’ depended on the fact that an
agreement between affiliated undertakings served the ‘internal assignment of tasks and responsibilities’.
This view has been expressed in Centrafarm75 and Piejper.76
In Philip Morris77, it was stated that although the acquisition by one company of an equity interest in a
competitor does not in itself constitute conduct restricting competition, such an acquisition may
nevertheless serve as an instrument for influencing the commercial conduct of the companies in question
so as to restrict or distort competition on the market on which they carry on business.
This will be true in particular where, the acquisition of a shareholding or through subsidiary clauses in
the agreement, the investing company obtains legal or de facto control of the commercial conduct of the
other company or where the agreement provides for commercial cooperation between the companies or
78
creates a structure likely to be used for such cooperation. Another indicator of the same is if the parent
restricted itself from engaging in any business activity in JVs place of business79, which is seen to be the
case in the present scenario.
In Freeman80, the Court stated:
“It will always be true that separate companies, in one enterprise, that are located in separate areas
and serve separate customers, will have varying interests. Their power depends, and has always
depended, on the cooperation among themselves. They are interdependent, not independent”.
Copperweld81 principles can also be applied since the parties had economic interests and purposes so
closely intertwined with the interests of the patentee that they formed a unified economic consciousness
82
incapable of conspiring with itself.
In contrast, when independent entities combine through an agreement that controls or restrains trade
in products or services, in which they previously had been actual or potential competitors, there is a
83
joining of two independent sources of economic power previously pursuing separate interests within the
antitrust proscriptions against combinations.
It is submitted that the case at hand doesn’t show sudden joining of entities. It shows a systematic co-
operation to further the common economic interest squarely placing it in the realm of single entity
doctrine.
III. WHETHER ADIVA, BRICK, CAUTIOUS AND DETRO ARE LIABLE FOR CONTRAVENTIONOF SECTION 3(3) OF
THE BOHEMIAN COMPETITION ACT , 2002.
A. The R&D Agreement is not anti-competitive.
R&D means the acquisition of know-how, carrying out theoretical analysis, systematic study or
experimentation, including experimental production, technical testing of products or processes, the
84
establishment of the necessary facilities and the obtaining of intellectual property rights. It is submitted
that the R&D Agreement entered into by the parties is inherently pro-competitive in nature.
The Commission has taken a positive attitude toward joint R&D agreements because they aim at
developing and marketing new products or new applications of existing products.85 Under these conditions,
it may be assumed that R&D agreements enable the parties to achieve better and more rapid results than
by proceeding individually, thereby leading to cross fertilisation of ideas and reducing duplicative,
86
unnecessary costs and substantially contributing to technical or economic progress.
Hence, there is an underlying presumption that R&D agreements contribute towards better and more
cost effective innovation. Relying on the results of the research conducted, the facts of the case indicate
that the parties to the agreement also decided to purchase certain ingredients for cattlefeed from local
87
unorganised supply chain.
88
Agreements which fall beyond the scope of Block Exemptions are those which do not have R&D as
their core objective89 for which the ‘centre of gravity’ test is applied.90
91
The centre of gravity of an agreement, for the purposes of the Horizontal Guidelines , is determined on
the basis of a two-part test.
1. Consideration is made of the ‘starting point of the cooperation’; where the cooperation begins. Thus,
if two companies agree to cooperate in joint R&D and production, the starting point is the R&D
92
agreement because it must be successful for joint production to occur.
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2. The second part of the test is an assessment of ‘degree of integration of different functions which are
93
combined’.
Hence, if other aspects of the agreement contain closer integration than the starting point, regard
should be had to the aspect involving the closest degree of integration because the possible anti-
94
competitive effects and economic benefits of the cooperation would largely relate to joint production. It is
submitted that the R&D agreement was the starting point of integration. However, there was no further
integration in production or distribution.
B. The parties have not formed a cartel.
The parties have not cartelised as there was no agreement or collusion between the parties and their
conduct has not caused any appreciable adverse effect on competition (AAEC).
i. There is no agreement between the parties.
To find the existence of a ‘cartel’ as defined under Section 2(c) of the Act, there has to be a clear
existence of an ‘agreement’ as defined Section 2(b). The definition of the term ‘agreement’ in Section 2(b)
may also include ‘action in concert’, which may be less formal than arrangement or understanding.95
However, where an arrangement does not indicate that the parties to it accepted mutual rights and
obligations, it would not tantamount to an arrangement.96 Merely following a price leader and adopting the
97
price announced by him would not imply an arrangement as it lacks mutuality.
ii. There are no factors of collusion established between the parties.
Though cartelisation can occur in any industry, there are a number of conditions, which make the
98
market conducive to cartelisation. The cattle feed industry is oligopolistic in nature; the parties control
50% of the market share, licensing by the Government is required for such manufacturers, there exists
relatively homogeneous product and investments in labs to conduct chemical tests pose considerable
barriers in the market.99
a. Conscious parallelism in an oligopoly.
The structural conditions of the market in which oligopolists operate can be such that they have little or
100
no incentive to compete. In these circumstances, parallel conduct would be not be the result of the will
or intention of market players but a natural consequence of the market structure and not any concerted
effort.101
102
In Steel Cartel , it was held:
“In an oligopolistic industry, the firms recognize their mutual interdependence, acknowledge that
they are players in a repeated game, and act according to it. In antitrust decisions, mere conscious
parallelism does not suffice for determination of firms engaged in concerted action because such pricing
can emerge from firms acting non collusively where they understand their role as players.”
To establish the existence of a cartel, the standard of proof required in an oligopolistic market is
substantially different than the proof required for proving cartelisation in other type of cases.103 Courts
have been cautious in accepting circumstantial evidence in cases involving allegations of horizontal co-
operation among oligopolists because the ‘theory of interdependence’ holds that parties may engage in
104
parallel pricing behavior without an express agreement. Hence, it is required that economic
circumstantial evidence goesbeyond the parallel movement to reach a finding that the firms have violated
provisions of the Act.105
b. Circumstantial evidence adduced is consistent with independent conduct.
The law is settled that proof of consciously parallel business behavior is circumstantial evidence but
such evidence, is insufficient unless the circumstances under which it occurred make the inference of
rational, independent choice less attractive than that of concerted action.106
1. Price parallelism.
If a firm's motivation were merely to meet rival prices, it would constitute only interdependence.107
Accordingly, to prove conspiracy, evidence of action that is against self-interest or motivated by profit
108
must go beyond mere interdependence. Parallel price-fixing must be so unusual that in the absence of
an advance agreement, no reasonable firm would have engaged in it.109
Cattle feed is a standardized commodity and companies operate in the same industry using similar raw
material.110 Accordingly, prices would be similar and broadly move in the same direction.111 These factors
112
have been considered by the CCI in various cases while assessing reasons for price parallelism.
2. Alleged market allocation.
113
In Christiani , the establishment of a subsidiary enabled it to provide its services under the most
favourable conditions on Dutch territory, which was seen legitimate upon mere strategic considerations
and did not lead to the necessary qualification of the subsidiary as an independent economic entity.114
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Commission found the division of markets to merely constitute an internal distribution of tasks between
115
the companies of the same economic entity. Therefore, the aspect of an ‘internal distribution of tasks’
does not amount to an independent prerequisite for the concept of a ‘single economic entity’.116 Rather,
the authority emphasized the lacking possibility of the agreement to restrict competition on the basis of
the existing control relationship between the affiliated companies.
Even in the present case, it can be seen that the parties were formed to tap into favourable business
conditions of the Bohemian market.117 Moreover, there exists no independent evidence of market sharing.
3. Alleged limitation of supply.
In situations of economic slowdowns, demand of commodities decrease, this in turn led the cattle feed
manufacturers to reduce supply.118 However, in the wake of a recovery in demand, supply also
subsequently increased. Courts have accepted that when prices of products in an industry are highly
visible it allows businesses to collect real time market intelligence and monitor each other's prices closely
119
and match price competitor movements.
It has been observed that the objective of a market regulator is not to look into and determine the
measure and degree of profitability of a sector or a commodity or a firm, if it is the outcome of interplay of
normal market forces of price, supply and demand or become a price corrector but only to ensure
competitive forces are not impeded or constrained in any manner through agreements, practices decisions,
120
abuse of dominant position of a dominant player and anti-competitive combinations.
4. Communication evidence.
Evidence must exclude the possibility that the conspirators acted independently, in other words, a
plaintiff must show inference of conspiracy is reasonable in light of the competing inferences of
independent action.121
• Seminars by Department of Animal Husbandry, Dairying and Fisheries
The only role of the Department of Animal Husbandry is the publication of the monthly price lists and
organizing a seminar to which the attendance of all the parties is doubtful.122 Moreover, an exchange of
price information can in certain circumstances increase economic efficiency and render markets more
123
competitive.
• Telephone Records.
Value isn’t attached to evidence of opportunity as social contacts and telephone calls are insufficient to
124
exclude the possibility independent action. Company personnel do not operate in a vacuum and engage
125
in social discourse.
Call logs with no additional context is insufficient evidence.126 The CCI has also not relied on records of
telephone calls alone and used such records to substantiate direct evidence like e-mails and letters
127
exchanged between parties. Here, there is no substantial evidence to draw an adverse inference of the
phone-calls and the parties had cause to discuss the R&D agreement.
• Replies to Andy Kurian.
Replies to Andy Kurian cannot be accorded value, as refusal to reduce prices is a reasonable justification
by entities in a free market. Courts have held that language in contracts and communications don't
constitute plausible grounds to infer an agreement as it is in line with rational and competitive business
128
strategy prompted by common perceptions of the market. It is submitted that there are no factors of
collusion among the parties that can be established.
C. The conduct of parties has not caused AAEC.
In a case where no contravention of provisions of Section 3(3) of the Act has been established and no
cogent evidence is made available which can establish the contravention, presumption of AAEC does not
arise.129 The non-competitive nature of a market, standing alone, does not imply an ‘agreement’.
Interdependent behavior is not an agreement, even in an oligopolistic market, in the absence of which,
130
factors of Section 19(3) of the Act are also not attracted. On the contrary, the pro-competitive effects of
the R&D Agreement have been enumerated.
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
131 132
the First Schedule to the Code of Civil Procedure. This same right is recognized both under the EU
133
and US jurisprudence.
Since the evidence necessary to prove a claim for damages is often held exclusively by the opposing
party or third parties, and is not sufficiently known by, or accessible to, the claimant, there are strict legal
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requirements to assert in detail all the facts of their case at the beginning of an action and to offer
precisely specified items of supporting evidence can unduly impede the effective exercise of the right to
compensation guaranteed by the TFEU.134
A. The legislative intent of the section allows for an application for compensation before the
Competition Appellate Tribunal.
A statute is stated to be the edict of legislature. It expresses the will of the legislature and the function
of the court is to interpret the document according to the intent of those who made it. The best norm
would be to give literal construction keeping the legislative intent in mind.135 The first and primary rule of
136
construction is that intention of the legislature is to be found in the words under by the legislature itself.
137
Thus, in the present case, since the guilt of the Dylon has already been established by the CCB , the
concerned application for compensation is maintainable before the COMPAT.
B. RAM has necessary standing to bring a representative suit under Order 1 Rule 8 of the Code of
Civil Procedure.
Under Order 1 Rule 8 of the CPC, it is necessary that the persons represented have the same interest or
138
community of interest. To enable a person to file a suit in a representative capacity for and on behalf of
numerous persons where they have the same interest, the only condition is the permission of the Court
and thus no previous sanction or authority of persons interested in the suit is required to be obtained
before institution of the suit.139 Thus, the only requirement under Order 1 Rule 8 is the previous sanction
of the Court and that the parties to be represented have the same interest.
i. The direct purchasers and end-consumer have a community of interest.
The conditions, therefore required for a valid class certification are as follows;140
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).
Factual differences in the amount of damages, date, size or manner of purchase, the type of purchaser,
the presence of both purchasers and sellers, and other such concerns will not defeat class action
certification when plaintiffs allege that the same unlawful course of conduct affected all members of the
141
proposed class.
Thus, in order to warrant denial of class certification, it must be shown that any asserted conflict is so
142
palpable as to outweigh the substantial interest of every class member in proceeding with the litigation.
Hypothetical conflicts regarding proof of damages are not sufficient to defeat class certification at this
stage of the litigation.143
For cases where proof of the impact of the antitrust infringement depends on multiple variables
144
affecting the price paid by plaintiffs, the ‘Bogosian short-cut’ has been designed. In Bogosian , the court
stated that:
“If a nationwide conspiracy is proven, the result of which was to increase prices to a class of plaintiffs
beyond the prices which would obtain in a competitive regime, an individual plaintiff could prove fact of
damage simply by proving that the free market prices would be lower than the prices paid and that he
made some purchases at the higher price. If the price structure in the industry is such that nationwide
the conspiratorially affected prices at the wholesale level fluctuated within a range which, though
different in different regions, was higher in all regions than the range which would have existed in all
regions under competitive conditions, it would be clear that all members of the class suffered some
damage, notwithstanding that there would be variations among all dealers as to the extent of their
damage. Under these circumstances proof on a common basis would be appropriate.”
The essential meaning of the Bogosian short-cut is that evidence of a common antitrust injury to every
class member, flowing from an alleged violation can satisfy the predominance requirement.145 Where the
146
plaintiffs have experienced the same injury, there are no class — conflicts.
ii. The purchasers have suffered actual damage.
The damage suffered by the victim is not only the financial loss suffered because of an increase in price,
but also the victim's quantitative loss in terms of volume of purchase and sales (as regards direct
purchaser). When damages are awarded on the basis of compensating the claimant for its loss, both
147
should be taken into account.
a. The purchasers are entitled to Dylon's illegal gain.
The damage suffered by the victim is not only the financial loss suffered because of an increase in price,
but also the victim's quantitative loss in terms of volume of purchase and sales. When damages are
-----------------------------------------------------------------------------------------------------------------------------------------------------------
awarded on the basis of compensating the claimant for its loss, both should be taken into account.In
circumstances in which it is difficult for the claimant to quantify his quantitative loss, an ex aequo et bono
estimation of damages is most appropriate, it could be considered to allow the claimant to base the
148
calculation of damages on the defendant's illegal gain.
Alternatively, the action can be structured as an action for recovery of illegal gain made by the infringer
as a result of the infringement. In this case, the claimant's claim is not for subjective loss suffered, but for
149
the illegal gain that the defendant has made from the infringement.
Thus, in the present case, even if the actual damage suffered by the direct purchaser or even end-
consumers cannot be concretely established, they will still be entitled to claim compensation in the form of
the illegal gains of Dylon.
b. The purchasers have paid an excessive price.
A damage due to overcharge includes the damage due to the infringement i.e. the higher price paid.150
‘Overcharge’ means the difference between the price actually paid and the price that would otherwise have
151
prevailed in the absence of an infringement of competition law and thus is indicative of a ‘but-for’ price.
In an overcharge case, impact and damages are closely related. A private plaintiff shows impact by
demonstrating that the actual price paid by the plaintiff during the period of the alleged antitrust violation
is higher than the but-for price. In principle, proof of impact is distinct from proof of damages, but they
152
are clearly related. The only way to impact is to prove the overcharge which is the but-for price.
Proof of damages is sufficient if the evidence shows the extent of damages as a matter of just and
reasonable inference, although the result might be only approximate.153 Damage issues in antitrust cases
are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other
154
contexts.
Therefore, in the present case, since both the direct purchasers as well as the end-consumers have paid
an excessive but-for price, they are entitled to receive compensation.
iii. That the defence of passing on is not available to Dylon against the direct purchasers.
The passing on defence is that the claimants have suffered no loss because they themselves passed on
to sub-purchasers any higher price that they might have paid.155 In the present case however, no such
defence is available.
iv. The dual-stage approach negates the possibility of passing on of overcharge.
156
The dual-stage model makes it clear that distribution is a cause as well as an effect of marketing
success: the strategies, structures, and performances of both retailers and manufacturers codetermine the
equilibrium relationship between share and distribution that characterizes a given market.157 According to
this theory, often heavily advertised brands are sold by retailers at retail prices that yield lower retail
158
margins than their less-advertised competition. With well-known, intensively advertised brands,
margins of manufacturers and retailers are inversely related.159
The intrabrand market is extremely competitive, and retailers face very elastic demand schedules and
160
have thin retail gross margins. Many consumers are disposed to switch stores within brand should a
dealer price a famous brand considerably above the prevailing level or fail to carry it at all. Hence, famous
advertised brands are sold at very thin mark-ups over factory price.161
Therefore, it is submitted that in the present case Dylon's packaged milk enjoys a powerful consumer
franchise.162 Thus, the retail gross margin of the direct purchasers was already a slim one. It would have
been extremely uneconomical for the retailers to pass on the illegal overcharge, in light of the extreme
competitive nature of the retail market.
A. The assessment of penalty on the basis of average turnover is justified.
163
In Musique , the Court stated that it is permissible, for the purpose of fixing the fine, to have regard
both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect,
of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted
for by the goods in respect of which the infringement was committed which gives an indication of the scale
of the infringement.
164
In MCX , it was stated that Section 2(y) of the Act defines turnover as including value of sale of goods
or services. Section 27(b) of the Act stipulates penalty based on an average of turnover for the last three
preceding financial years. Neither gives a leeway for an interpretation that turnover means turnover in the
context of only the relevant product or geographic market.
In fact, the CCI was of the firm belief that such an interpretation would not be in consonance with the
underlying intent of the provisions of the Act, particularly in instances of contravention of Section 4(e)
where the market entered or protected may have a very small turnover but the market from where the
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165
market power was transposed has a much larger turnover. The imposition of monetary penalty under
Section 27(b) of the Act would serve the dual purpose of deterrence as well as punishment.
In the Indian context, if an enterprise or group is held in contravention of the Act, the law does not
stipulate or allow the CCI to restrict the monetary penalty by artificially truncating the turnover of the
enterprise or group and confining it to relevant market.166
As long as the entity that is guilty of contravention is a single entity, its entire turnover is the relevant
turnover for the purpose of Section 27(b). The only fetter which has been placed by Section 27(b) of the
Act on the power of the CCI to impose penalty in cases of infringement of Section 4, is the cap of 10% of
the average of turnover for the three preceding financial years.167
EU and OFT guidelines cannot be treated as the be all and end all in the matter and would have to be
considered in the light of the facts of each case.168 The relevant turn over can only be considered where
169
products of those companies have no connection and do not depend upon the product involved.
In the present case, the products are very closely related to each other. Dylon heavily advertised his
products towards nutrition of mother and infants.170 Dylon's baby food was one of the most popular
171
products. Due to the heavy advertising and marketing of Dylon's products, and the perceived nutritional
value of his products, the consumers purchasing one commodity of Dylon are swayed towards purchasing
the other products as well within the range of the products. Hence, demand for one, affects the demand for
the other and the relevant turnover affected by infringement cannot be clearly demarcated.
In assessing penalties, the value of sales both directly and indirectly relatingto the infringement shall be
assessed. As the Commission explains in reference 6 of the Guidelines, such will be the case, for instance,
for horizontal price fixing arrangements on a given product, where the price of that product then serves as
172
a basis for the price of lower or higher quality products.
The CMA also accounts for any gain which might accrue to the undertaking in other product and
geographic markets as well as the relevant market in question. In predation cases, where the relevant
market may be very small but the act of predation provides the undertaking with a reputation for
173
aggressive behaviour which may be used to its advantage in many other markets.
In mature jurisdictions, the method of setting fines progresses in three stages. It starts with setting of
basic fine and further incorporates the firm's ability to pay and the gravity of the offence.174 In Bohemian
Competition Law, in the absence of guidelines, the fines cannot be set merely on the basis of the relevant
turnover since it might not reflect the true nature of infringement. Hence, the provisions of the European
penalty system in competition cannot be imported here.
B. The quantum of penalty levied by the CCB is justified.
The 2012 Guidance includes a fourth step in the setting of fines enabling the CMA to adjust for specific
175
deterrence and proportionality. The appropriate indicators of the size and financial position of the
undertaking, including where they are available, total turnover, profits, and cash flow and industry margins
are examined.
The Court has observed in Britannia Alloys176, that in certain situations, the turnover in question does
not provide any useful indication as to the actual economic situation of the undertaking concerned and the
appropriate level of fine to impose on that undertaking.
Further an aggravating factor which the CCB took into account is the non-cooperation of Dylon with
respect to information sought by the DG.177 While assessing the quantum of penalty, it is empowered to
178
take into account certain aggravating and mitigating factors. One of the factors is failure to cooperate
and disclose relevant information.179 In Google180, the DG sought certain information and documents to be
furnished. However due to non-cooperation the DG reported the matter and sought initiation of
181
proceedings against Google in terms of the provisions contained in Sections 43 and 45 of the Act.
C. Purpose of penalties.
In imposing fines and periodic penalty payments, the main aim is to ensure that the prohibited conduct
182
does not recur. Thus, the essential purpose of penalties is, to deter and persuade. In the specific case of
fines, the Community Courts have recognized their twofold character, in that they punish past acts and
have a general deterrent effect for the future.183 This applies not only to the undertakings involved but also
to others who might be tempted to engage in the same type of conduct. The Commission often explicitly
justifies a high fine being imposed to exclude, by its deterrent effect, any repetition of the behaviour in
184
question. Hence, it is submitted that the imposition and quantum of penalty on Dylon is justified.
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 Tribunal that it may be pleased to dismiss this
appeal and declare that:
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1. Dylon is dominant and is liable for contravention of Section 4(2) of the Bohemian Competition Act,
2002.
2. Adiva, Brick, Cautious and Detro constitute a single economic entity with Acme as their parent.
3. Adiva, Brick, Cautious and Detro are not liable for contravention of Section 3(3) of the Bohemian
Competition Act.
4. RAM is entitled to claim compensation under Section 53N of the Bohemian Competition Act.
5. The imposition and quantum of penalty imposed on Dylon by the CCB is sustainable and should not
be set aside.
And pass any other order or grant any other relief in favour of the Respondents, 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, [hereinafter, ‘United Brands’].
2
The Competition Act, 2002 (India), [hereinafter ‘The Act’].
3
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.
4
Milk and Dairy Products in Human Nutrition, Food and Agricultural Organization of the United Nations. [E-ISBN 978-92-5-107864-8 (PDF)].
5
Friesland Foods/Campina, Case No. COMP/M.5046.
6
Arla Foods/Milk Link, Case No. COMP/M.6611.
7
Arla Foods/Milch-Union Hocheifel, Case No. COMP/M.6627.
8
Holcim Limited/Lafarge S.A., Combination Registration No. C-2014/07/190, CCI.
9
Tamilnadu Consumer Products Distributors Association v. Britannia Industries Ltd., Case No. 106/2015, CCI.
10
Cine PrakashakulaViniyogaDarulaSangham v. Hindustan Coca Cola Beverages Pvt. Ltd, Case No. UTPE-99/2009 & RTPE-16/2009, CCI.
11
Roundtables on Demand-Side Economics for Consumer Policy: Summary Report, DSTI/CP(2006)3/FINAL, OECD, available at:
https://www.oecd.org/sti/consumer/36581073.pdf.
12
Refresco Group/Pride Foods, Case No. COMP/M.6924.
13
Tetra Pak International SA v. Commission, Case C-333/94 P [1996] ECR I-5951.
14
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http://ec.europa.eu/competition/sectors/media/documents/chapter_1_ec.pdf.
15
Nestle/Perrier, Case No. IV/M. 190.
16
Padilla, The Role of Supply-side Substitution in the Definition of the Relevant Market in Merger Control, A Report for DG Enterprise A/4,
European Commission, available at: file:///C:/Users/WinDOWS/Downloads/supply-side_substitution_2682%20(1).pdf.
17
Id.
18
Id.
19
Continental Can, Case 85/76 [1972] ECR 215.
20
Michelin, Case 322/81 [1983] ECR 3461.
21
Hofmann-La Roche & Co. AG v. Commission of the European Communities, [1979] ECR 461, [hereinafter ‘Hofmann-La Roche’].
22
Commission Notice - Guidelines on Vertical Restraints, 2000/C 291/01, available at:
http://ec.europa.eu/competition/antitrust/legislation/guidelines_vertical_en.pdf.
23
Moot Proposition, ¶ 13.
24
Hofmann-La Roche, supra at 21.
25
Id.
26
AKZO Chemie BV v. Commission, [1991] ECR I-3359, [hereinafter, ‘AKZO’].
27
Microsoft, Case No. COMP/C-3/37.792.
28
United Brands, supra at 1.
29
Michelin II, (2002) O.J. L 143/1.
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30
Eurofix-Bauco v. Hilti, Case No. IV/30.787 and 31.488.
31
AKZO, supra at 26.
32
NV NederlandscheIndustrie Michelin v. Commission, [1983] ECR 3461, [hereinafter, ‘Michelin’].
33
Tetra Pak II, (1992) O.J. L 72/1.
34
Michelin, supra at 29.
35
BPB Industries Plc., (1989) O.J. L 10/50, [hereinafter, ‘BPB Industries’].
36
37
38
Id.
39 th
RICHARD WHISH & DAVID BAILEY , COMPETITION LAW (Oxford University Press, 7 ed., 2012) [hereinafter, ‘Whish & Bailey’].
40
OFT (1999), Guidelines on the Assessment of Market Power.
41
42
BPB Industries, supra at 35.
43
General Motors v. Commission, [1975] ECR 1367.
44
45
John Temple Lang, Some Aspects of Abuse of Dominant Positions in European Community Antitrust Law, F ORDHAM INTERNATIONAL LAW
JOURNAL , Volume 3, Issue 1 1979, [hereinafter ‘John Temple Lang’].
46
British Leyland Public Limited Company v. Commission, [1986] ECR 3263.
47
Scandlines Sverige AB v. Port of Helsingborg, COMP/A 36.568/D3.
48
John Temple Lang, supra at 45.
49
Parke, Davis v. Probel Reese, [1968] C.J. Comm. E. Rec. 72.
50
John Temple Lang, supra at 45.
51
Massimo Motta & Alexandre de Streel, “Excessive Pricing in Competition Law: Never Say Never?” in The Pros and Cons of High Prices,
Konkurrensverket Swedish Competition Authority, 2007.
52
Roundtables on Excessive Prices, DAF/COMP(2011), OECD, available at: http://www.oecd.org/daf/competition/abuse/49604207.pdf.
53
Id.
54
Hydrotherm v. Compact, [1984] ECR 2999.
55
Shell v. Commission, [1992] ECR II-757.
56
Viho Europe BV v. Commission, [1996] ECR I-5457.
57
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 [hereinafter, ‘Copperweld’].
58
59
Grasim Industries Limited and Aditya Birla Chemicals Limited, (Combination Registration No. C-2015/03/256).
60
Id.
61
Id.
62
Whish & Bailey, supra at 39.
63
Exclusive Motors Pvt. Ltd. v. Automobili Lamborghini SPA, Appeal No. 01/2013, COMPAT.
64
AllgemeineElektrizitäts-Gesellschaft AEG-Telefunken AG v. Commission, [1983] ECR 3151.
65
Avebe v. Commission, [2006] ECR 3085.
66
Copperweld, supra at 57.
67
Coast Cities Truck Sales, Inc. v. Navistar Intern. Transp. Co., 912 F. Supp. 747.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
68
Rosen v. Hyundai Group (Korea), 829 F. Supp. 41.
69
70
AKZO Nobel NV v. Commission, [2007] ECR II-5049 [hereinafter, ‘AKZO Nobel’].
71
Opinion in Viho v. Commission, (C-73/95 P).
72
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’).
73
74
Nada Ina Pauer, The Single Economic Entity Doctrine and Corporate Group Responsibility in European Antitrust Law, WORLD COMPETITION,
38(1), [hereinafter, ‘Nada’].
75
Centrafarm B.V. &Adriaan De Peijper v. Sterling Drug Inc., [1974] ECR 1174.
76
Peijper v. Winthrop B.V., [1974] ECR 1138.
77
B.A.T. & Ors. v. Commission, [1987] ECR 4487.
78
Id.
79
Nada, supra at 74.
80
Freeman v. San Diego Association of Realtors, 322 F. 3d 1133.
81
82
Pink Supply Corp. v. Hiebert, Inc. 612 F.Supp. 1334.
83
84
Commission Regulation on the Application of Article 81(3) of the Treaty to Categories of Research and Development Agreements, Article
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85
Id.
86
Commission Guidelines on Applicability of Article 81 of the EC Treaty to Horizontal Cooperation Agreements, OJ2001C3/2, available at:
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87
88
Commission Regulation on the Application of Article 101(3) of the Treaty on the Functioning of the European Union to Certain Categories
of Research and Development Agreements, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=OJ:L:2010:335:0036:0042:EN:PDF.
89
Siemens/Fanuc, 1985 O.J. L 376/29.
90 th
VAN BAEL&BELLIS, COMPETITION LAW OF THE EUROPEAN COMMUNITY (5 ed., Kluwer Law International, 2009).
91
Horizontal Guidelines, supra at 86.
92
Id.
93
Id.
94
Id.
95
Sameer Agarwal v. CCI, Appeal No. 73/2016, COMPAT.
96
In Re: Austin Motor Car Co. Ltd., (1957) LR 1 RP 6.
97
All India Motor Transport Congress v. Indian Foundation of Transport Research & Training &Ors., Appeal No. 20/2015, COMPAT.
98
In Re: Alleged Cartelization by Steel Producers, Case No. RTPE No. 09/2008, CCI, [hereinafter, ‘Steel Cartel’].
99
100
S M DUGAR , GUIDE TO COMPETITION LAW (LexisNexis, Vol. 1, 6th ed., 2016).
101
Rafael Allendesalazar, Oligopolies, Conscious Parallelism and Concertation, European Competition Law Annual, 2006, available at:
http://www.eui.eu/RSCAS/Research/Competition/2006(pdf)/200610-COMPed-Allendesalazar.pdf.
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102
Steel Cartel, supra at 98.
103
In Re: Suo-moto Case against LPG Cylinder Manufacturers, Case No. 03/2011, CCI.
104
In Re: Flat Glass Antitrust Litig., 385 F.3d 350.
105
In Re: All India Tyre Dealer's Federation v. Tyre Manufacturers, Case No. 20/2008, CCI, [hereinafter, ‘Tyre Cartel’].
106
Shailesh Kumar v. Tata Chemicals Ltd., Case No. 66/2011, CCI, [hereinafter, ‘Soda Ash Cartel’].
107
Id.
108
Id.
109
Coleman v. Cannon Oil Co., 849 F.Supp.1458.
110
111
In Re: High Fructose Corn Syrup Antitrust Litig., 295 F.3d 662.
112
Builders Association of India v. Cement Manufacturers' Association & Ors., Case No. 29/2010, CCI [hereinafter, ‘Cement Cartel’].
113
Christiani& Nielsen, [1969], OJ Nr. L 165/12, [hereinafter, ‘Christiani& Nielsen’].
114
Id.
115
Nada, supra at 74.
116
Christiani& Nielsen, supra at 113.
117
118
119
Steel Cartel, supra at 98; Tyre Cartel, supra at 105.
120
Cement Cartel, supra at 112.
121
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574.
122
Moot Proposition, ¶ 8, 15.
123
Krehl v. Baskin—Robbins Ice Cream Co., 664 F.2d 1348.
124
Petruzzi IGA Supermarkets v. Darling-Delaware Co., 677 F.Supp. 289.
125
In Re: Ins. Brokerage Antitrust Litig., 618 F.3d 300.
126
Id.
127
In Re: Chemists & Druggists Association, Goa, Glenmark Company & M/s Wockhardt Ltd., Suo-Moto Case No. 05/2013, CCI.
128
In Re: Elevator Antitrust Litig., 502 F.3d 47.
129
In Re: Federation of Indian Airlines, Case No. RTPE 3/2008, CCI; Chief Materials Manager v. Milton Industries Ltd., Reference Case No.
02/2014, CCI.
130
Shailesh Kumar v. Tata Chemicals Limited, Case No. 66/2011, CCI.
131
The Code of Civil Procedure, 1908 (5 of 1908) [hereinafter, ‘CPC’].
132
Courage Ltd v. Bernard Crehanand Bernard Crehanv. Courage Ltd and others Case C-453/99, European Court of Justice.
133
The Clayton Antitrust Act, 1914.
134
Directive 2014/104/EU Of The European Parliament And Of The Council on Certain Rules Governing 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. [Hereinafter ‘Directive 2014/104/EU’].
135
Kashmir Singh v. Harnam Singh, (2008) 12 SCC 796.
136
Competition Commission of India v. Steel Authority of India Limited and Another, (2010) 10 SCC 744.
137
Moot Proposition ¶ 20.
138 th
54 Law Commission Report, available at: http://lawcommissionofindia.nic.in/51100/Report54.pdf.
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139
State of Andhra Pradesh v. Gundugola Venkata SuryanarayanaGaru, AIR 1965 SC 11.
140
Polverino, Class Action Model for Antitrust Damages Litigation in the European Union, WORLD COMPETITION LAW AND ECONOMICS REVIEW,
Kluwer Law International 2007, Volume 30 Issue 3.
141
In Re: Sumitomo Copper Litigation, 182 F.R.D. 85.
142
In Re: NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493.
143
Id.
144
In Re: Glassine & Greaseproof Paper Antitrust Litig., 88 F.R.D. 302.
145
Fabio Polverino, A Class Action Model for Antitrust Damages Litigation in the European Union, Kluwer Law International 2007, Volume 30
Issue 3.
146
Shawn Sullivan v. D.B. Investments Inc., 667 F.3d 273.
147
Roundtable on Private Remedies: Passing on Remedies; Indirect Purchaser Standing; Definition of Damages, DAF/COMP/WP3/WD(2006)
9, OECD, 2006, available at: http://ec.europa.eu/competition/international/multilateral/2006_feb_private_remedies.pdf.
148
Id.
149
Id.
150
Id.
151
Directive 2014/104/EU, supra at 134.
152
Blair and Durrance, Economic Pitfalls in Antitrust Class Certification, 21-SUM ANTITRUST 69.
153
Knutson v. Daily Review, Inc., 548 F.2d 795.
154
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100.
155
BCL Old Co. Ltd. & Ors. v. Aventis SA & Ors., [2005] CAT 2.
156
Robert L. Steiner, The evolution and Applications of Dual-Stage Thinking, 49 ANTITRUST BULL . 877 2004.
157
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-----------------------------------------------------------------------------------------------------------------------------------------------------------
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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
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tribunals and forums at Lucknow only. The authenticity of this text must be verified from the original source.

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Page 1 Tuesday, February 27, 2024

8th NLUJ Antitrust Moot, 2017

BEFORETHE COMPETITION APPELLATE TRIBUNAL OF BOHEMIA AT RIVERDALE

Coleman v. Cannon Oil Co., 849 F.Supp.1458. 23

Siemens/Fanuc, 1985 O.J. L 376/29. 20

and Development Agreements, Article 2(4), available at: http://eur-lex.europa.eu/legal-

TFEU Treaty on the Functioning of the European Union

a. There are significant sunk costs involved in uncommitted entry.

vi. Barriers to entry.

lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52006XC0901(01), [hereinafter, ‘Guidelines on the Method of Setting Fines’].

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