1.

The Counsel for the Informant humbly submits before this Competition Commission that
the Competition Commission of India has appropriate jurisdiction to try the case. The
arguments submitted are in a two-fold manner that 1.1) Conditions required under §19 of the
Competition Act, 2002 is fulfilled and, 1.2) CCI has more authority than SEBI.

2. It is most humbly submitted that according to §19(1)(a) of the Competition Act, 2002, a
private party has a right to file a complaint before the Commission, such complaint is only
the basis of initiating investigation and the actual inquiry into any alleged violations of the
provisions of the Act is done by Competition Commission of Indri (Hereinafter referred to
as CCI). It can investigate and inquire into any anti-competitive agreements, 1 abuse of
dominant position2 or combination3 if such agreement or dominant position or combination
has, or is likely to have, an appreciable adverse effect on competition in the relevant market
in India.

4. In Telefonaktiebolaget LM Ericsson v. CCI,4 any competitive agreement which imposes

unreasonable conditions was held to be in contravention of section 3 of the Competition Act.

5. European Court of Justice defined a dominant position as “a position of economic strength

enjoyed by an undertaking which enables it to prevent effective competition being maintained
on the relevant market by giving it the power to behave to an appreciable extent
independently of its competitors, customers and ultimately of consumers” 5 It is not to say that
an undertaking that has a dominant position is in itself a recrimination but simply means that,
irrespective of the reasons for which it has such a dominant position, the undertaking
concerned has a special responsibility not to allow its conduct to impair genuine
undistorted competition on the Common Market6

6. With respect to CCI’s jurisdiction, the Raghavan Committee captures a framework of the
administrative structure of the CCI, by noting that “in the view of the Committee, the CCI
should be the sole recipient of all complaints regarding infringement of the Competition Act
from whatsoever sources it may be; an individual, a firm or an entity or the Central or State
Governments.”7 and in the case of Reliance Agency v. Chemists and Druggists Association
1
The Competition Act, 2002, §3.
2
The Competition Act, 2002, §4.
3
The Competition Act, 2002, §5.
4

5
Bodson/PFG judgment of 4 May 1988, ECR II-2479, ¶25.
6
Case 322/81 Nederlandsche Banden-Industrie Michelin NV v. Commission, [1985] 1 C.M.L.R. 282, ¶57 and
Case T-210/01, General Electric/Commission, judgment of 14 December 2005, ECR II-5575, ¶549.
7
Raghavan Committee Report, 2000.
of Baroda,8 it was held that “As long as the matter reported to the Commission involves
anticompetitive issues falling within the ambit of the Act, the Commission is mandated to
proceed with the matter.”

7. Under the scheme of the Act, the Competition Commission is vested with inquisitorial,
investigative, regulatory, adjudicatory and to a limited extent even advisory jurisdiction. Vast
powers have been given to the Commission to deal with the complaints or information
leading to invocation of the provisions of Sections 3 and 4 read with Section 19 of the Act.9

8. In Monsanto Holdings Pvt. Ltd. v. CCI,10 Delhi High Court reiterated the decision
of Ericsson11 that, it is the exercise of the rights or the conduct which is to be examined by
CCI and not the subject matter of those rights which is the domain of the expert body.

1.2 CCI HAS JURISDICTION REGARDLESS OF PRESENCE OF OTHER

REGULATORS LIKE SEBI

10. It is humbly submitted that the Hon’ble Supreme Court in CCI v. Bharti Airtel,12 was
decisive in resolving the jurisdictional conflicts between sectoral regulator TRAI and the
CCI, and in outlining the distinctions between the two. The Court had explained that the CCI
is not a sector based body but has the jurisdiction across which transcends sectoral
boundaries, thereby covering all the industries. The Court has also explained that “On the
nature of the remedy provided under both the Acts, even if TRAI adjudges that the impugned
activity is anti-competitive, thereby causing appreciable adverse on competition, its powers
would be limited to the action that can be taken under the TRAI Act alone. It is the CCI
which is the expert body in studying the nuances of competition in market. The CCI provides
more structural remedies, which promote the entry of new players, and hence competition in
the market.”

11. In the case of In Re: Brickwork Ratings India Pvt. Ltd. and CRISIL Ltd. and Others,13
reliance was placed upon the Bharti Airtel judgment 14 where it was said that “mere presence
of a sectoral regulator, viz. SEBI, does not extinguish the jurisdiction of the CCI. Although
the subject matter of CRAs falls within the domain expertise of SEBI, examining any conduct

9
CCI V. SAIL
10

11

12

13

14
of a CRA alleged to be anti-competitive is within the jurisdictional ambit of the CCI.”
Similarly, in the present case, CCI’s jurisdiction does not cease just because SEBI or any
other regulator should be the one to handle the subject matter of exclusive licensing
agreements. If the conduct is proved to be anti-competitive then CCI is well within its rights
to have the jurisdiction to try the case.

12. Even in the presence of efficacious remedies under other statutes, the jurisdiction of CCI
to entertain the matter and remedies under such acts are capable of standing independently
without any conflict. The same has been held in the case of Ericsson v. Micromax.15

Highlighted parts from - Telefonaktiebolaget LM Ericsson (PUBL) v. Competition

Commission of India, 2016 SCC OnLine Del 1951

13. In the case of Life Insurance Corporation of India v. D.J. Bahadur,16 the Supreme
Court had observed, “for certain cases, an Act may be general and for certain other purposes,
it may be special and the court cannot blur a distinction when dealing with the finer points of
law.” In a later judgment, Allahabad Bank v. Canara Bank,17 the Supreme Court has
explained the above principle by giving an example of Rent Control Acts which may be
special statutes as compared to the Civil Procedure Code but would be construed as a general
statute vis-à-vis an Act permitting eviction from public premises or some special class of
buildings.

14. It is only when the provisions of a later enactment are so inconsistent with or repugnant to
the provisions of an earlier one then only the two cannot stand together and the earlier stands
abrogated by the later.18 The above principle was also reiterated by the Supreme Court
in R.S. Raghunath v. State of Karnataka.19

14. The intention of the Parliament in enacting the Competition Act was not to curtail or
whittle down the full scope of any other law and, therefore, it is expressly stated that the
Competition Act would be in addition to, and not in derogation of any other Act.20

15. In the case of Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of

India, it was observed by the Hon’ble Judge that, “It is well settled that the provision of any

15

16
(1981) 1 SCC 315
17
(2000) 4 SCC 406
18
Kunter v. Phillips : (1891) 2 Q.B. 267
19
(1992) 1 SCC 335
20
Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India, 2016 SCC OnLine Del 1951
statute must be read in the context of the statute as a whole. A non-obstante clause is a well
known legislative device used to give an overriding effect to certain provisions over the
others which are inconsistent with those provisions; in the present case, Section 60 of the
Competition Act expressly provides that the provisions of the Competition Act shall have
effect notwithstanding anything inconsistent in any other law. However, the said provision
must be read in the context of the Competition Act as a whole and the mischief that is sought
to be addressed by the Competition Act. Thus, in my view, Section 60 is enacted only to
restate and emphasize that notwithstanding agreements, arrangements, practices and conduct
which may otherwise be legitimate under the general laws would nonetheless be subject to
the rigors of the Competition Act. Section 60 cannot be read to curtail or whittle down the
provisions of other statutes; this interpretation would also be in sync with provisions of
Section 62 of the Competition Act as indicated above.”

16. Therefore, it is humbly submitted that CCI has jurisdiction to assess cases where it is
found that the agreement contains anti-competitive elements regardless of other regulatory
bodies having the jurisdiction as well.